Free_Law_Journal-Vol.. - Free World Publishing Inc.

FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
United States argued that warships may not pass without consent into this zone, because they threaten;
merchant ship may pass or re-pass because they do not threaten. 28
However, it is rather controversial as in the 1930 Hague Conference text provided that as a general rule, a
Coastal State will not forbid the passage of foreign warships in its territorial sea and will nor require a
previous authorisation of notification. 29 Still, in the 1958 Convention on Territorial Sea, the terms were
limited only to ‘ships of all State’ 30 that indicates both warships and other ships. However, some states
ratified the Convention to this effect that warships should require a prior authorisation for the passage.
In Corfu Channel Case, as regards the innocent passage of British war ships, the Court, in fact, referred
the manner of passage as the decisive criterion. Albania contended that since the manner of passage in
respect of British war ships was inconsistent with the term ‘innocence’, its sovereignty was violated. In
support of this argument Albania stated that the passage was not an ordinary passage, but a political
mission; the ships were manoeuvring and sailing in diamond combat formation with soldiers on board; the
position of gun was not consistent with the innocent passage; the vessels passed with crews at action
stations; the ships had received orders to observe and report upon the coastal defence 31 and so on.
However, these were later evidenced by the Court that the ships were not in a combat formation, but in
line, one after another, and that they were not manoeuvring until after the first explosion, 32 the position of
guns were also normal.
Article 19 of the 1982 Convention on Law of the Sea provides the followings as precluded from innocent
passage:
a. threat or use of force against the sovereignty, territorial integrity and political independence of the coastal state;
b. any exercise or practice with weapons of any kind;
c. any act aimed at collecting information to the prejudice of the defence or security of the coastal state;
d. any act of propaganda aimed at affecting the defence and security of the coastal state; and
e. any fishing activities and the carrying out of research or survey activities.
In the light of those provisions, in Corfu Channel Case, British war ships did not make either any act of
propaganda aimed at affecting the defence and security of Albania or any act of fishing and carrying out
research or survey falling respectively under article 19(d) and 19(e). Therefore those can be excluded
here. The passage was not even proved for the purpose of collecting information to the prejudice of the
defence or security of Albania. Exercise and practice of weapons on part of British ships were also absent
in Corfu Channel case. The rest of the provisions were issue before the Court i.e., whether the acts of
British war ships constituted threat to the sovereignty, territorial integrity or political independence of
Albania. She contended on the point that the British warships did not comply with the Albanian
regulations requiring prior authorisation of war ships, and thus its sovereignty was violated by such a
passage. The Court pointed out that as long as the passage was conducted in a fashion which presented no
threat to the coastal state, it was to be regarded as innocent. The Court, in fact, considered two journeys
through the Channel differently. On the day the explosions occurred on 22nd October 1946, acts of British
war ships were mere passage thorough the territorial waters, thus regarded as innocent passage whereas on
12th and 13th November, acts of minesweeping operation, ‘Operation Retail’ in the channel by the United
28 Churchil, The Law of the Sea(1988) at p. 74
29 Id. at p. 75 note 24
30 Article 14(1) of 1958 Convention on the Law of the Sea
31 ICJ Report 1949 at p. 30
32 ICJ Report 1949 at p. 31
KAMRUL HOSSAIN - LEGAL ISSUES ARISING OUT OF CORFU CHANNEL CASE OF 1949 53