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Issues Relating to Law of the Sea
FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
The second question of Corfu Channel case has been involved relating to the issues arising out of rules of
the law of the sea, especially rules regarding the innocent passage through the territorial water of a state,
and the position of straits that are used as an international highway for navigation under international law.
Innocent passage of a war ship was also an issue of dispute in this regard. At the time when the case was
brought before the Court, these rules were mainly derived from the customary international law and the
state practices. However, the different conventions on law of the sea concluded later on were highly
influenced by those customs and state practices.
Right of Innocent Passage
The element, ‘innocent passage’ was first introduced in 1930 Hague Conference by including ships
travelling through the territorial sea to or from internal waters. 22 In general terms ‘passage’ means go
through to some destination, and to be innocent this passage should be peaceful. It is a recognised
principle under international law that although Coastal State’s sovereignty extends to the territorial waters,
it would not impair the right of the ships of other states taking passage through the territorial waters unless
the act of foreign ships is prejudicial to its interests. That means when a passage becomes prejudicial to
the coastal state, it looses its character as innocent. Hague Conference in 1930 provides:
Passage is not innocent when a vessel makes use of the territorial sea of a coastal State for the purpose of doing any act
prejudicial to the security, to public policy or to the fiscal interests of that State. 23
In 1982, in the convention on law of the sea passage was defined as navigation through the territorial sea
for the purpose of:
a. traversing that sea without entering internal waters or calling at such roadstead or port facility outside internal waters;
or
b. proceeding to or from internal waters or a call at such roadstead or port facility. 24
However, the passage to be innocent shall be continuous and expeditious. In some cases passage includes
stopping and anchoring, but only in so far as it is incidental to ordinary navigation or rendered necessary
by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in
danger or distress. 25 Article 14(4) of the Territorial Sea Convention states, that a passage is innocent so
long as it is not prejudicial to the peace, good order or security of the coastal State. This article also states
that passage should be in conformity with other rules of international law.
The law of the sea conventions indicated some manners to be regarded innocence of a passage through the
territorial waters such as, for fishing vessel it requires to observe the rules and regulations of the coastal
state 26 , for submarines to navigate on the surface and to show their flag 27 and so on. However, it was
ambiguous from both the conventions on whether a passage of war ship is regarded as innocent in time of
peace or even in time of war. In the North Atlantic Coast Fisheries arbitration in 1910, counsel for the
22 See, Churchil, R.R., The Law of the Sea (1988) at p. 69
23 Churchil, id. at p. 70, note 15
24 Article 18, 1982 Convention on the Law of the Sea, and Art.14 1958 Convention on the Law of the Sea
25 Article 18, 1982 Convention on the Law of the Sea
26 Art. 14(5) 1958 Convention
27 Art. 14(6) 1958 Convention
KAMRUL HOSSAIN - LEGAL ISSUES ARISING OUT OF CORFU CHANNEL CASE OF 1949 52