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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
FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) Kingdom was contrary to right of innocent passage and thus Albanian sovereignty was violated by such acts. Passage through Strait In Corfu Channel case, the position of strait has had a great importance while the right of innocent passage was being considered. Definition of strait was not concluded in any of the convention produced by the United Nation Conferences on the Law of the Sea. However, the ordinary meaning of strait bears a narrow natural passage or arm of water connecting two larger body of water. 33 North Corfu Channel, being such a narrow natural passage connecting Egean and the Adriatic Seas, constitutes a frontier between Albania and Greece, which a part of it is wholly within the territorial waters of these States. The Channel was also important to Greece for the traffic to and from the port of Corfu. Albania did not deny the fact that North Corfu Channel is not a strait. But it contended that since such strait constitutes the territorial water of Albania, passage of British warships must have been needed prior authorisation in accordance with the local regulation of Albania. However, it is the customary international law that passage through strait constituting territorial waters of a state can never be suspended when the strait is used as the high way of international navigation unless there exists some exceptional circumstances subject to the passage was innocent. Albania invoked that North Corfu Channel was the way of secondary importance and not even the necessary route between two parts of the high seas, and the channel was used almost exclusively for local traffic to and from the ports of Corfu and the Saranda. 34 British government submitted a statistics that since 1st April 1936 to 31st December 1937, within this one year and nine months period the total number of ships passed through the Channel were 2884, that were belonging to the flag states of Greek, Italy, Romania, Yugoslavia, France, Albania and Britain. 35 Therefore, Court was in a decision that North Corfu Channel belongs to a strait used as high way of international navigation, and thus passage can not be prohibited in time of peace even if it is a war ship, provided that such passage was innocent. Therefore, Albanian moved towards finding a situation contrary to peace in the area at the time in question by invoking an earlier declaration made by Greece that she considered herself technically in a state of war with Albania due to the territorial claim bordering on the Channel. The Court, having regarded the situation as an exceptional circumstances pointed out that issuing regulations in respect of the passage of war ships through the strait would have been justified but prohibiting of such a passage or subjecting it to the requirement of special authorisation can not be justified. 36 Environmental Issues During the last few decades environment has been a matter of considerable importance under international law. Regulation of the international environment has increased dramatically in recent years. It is now established that a state owes all times a duty to protect other states against injurious acts by individuals 33 Churchil, The Law of the Sea (1988) at p. 87 34 ICJ Report, 1949 at p. 28 35 ICJ Report, 1949 at p. 29 36 ICJ Report, 1949 at p. 29 KAMRUL HOSSAIN - LEGAL ISSUES ARISING OUT OF CORFU CHANNEL CASE OF 1949 54
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