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A Survey of the Definition of International Straits and the Issue of “Status Mixtus”*

Published online by Cambridge University Press:  12 February 2016

Mibi B. Moser
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Extract

The issue of free navigation through international waterways is not academic nor need any hypothetical questions be posed. The concept of free navigation and international interest continues to confront the concept of sovereignty and national interest. To solve some of the acute problems thus engendered, it has become necessary to establish a body of rules within the scope of international law.

This paper is devoted to one category of international waterways, the so-called international straits. “Still waters run deep” and it seems as if narrow strips of water are often the most troublesome.

The most recent controversy concerning free navigation through straits arose in 1967 between Israel and the U.A.R. over the Tiran Straits. In the absence of an international power able to enforce the so-called international rule of free navigation or to convince the parties that the rule did not apply, the conflict was resolved by force of arms.

No agreement exists between the littoral States as to the legal status of the Gulf of Aqaba and the Straits. The most cited document in this connection is the Geneva Convention on Territorial Sea and Contiguous Zone of 1958. Examination of the preparatory and subsequent material of the 1958 Geneva Conference on the law of the sea, leads to the conclusion that the problem of straits in international law is not so much a question of substantive rule as a problem of defining international straits. The rule as such of free navigation is well established and was articulated long ago by Grotius. The right of innocent passage and the freedom of the high seas is today basically derived from the rule as defined by Grotius.

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Israel Law Review , Volume 3 , Issue 1 , January 1968 , pp. 50 - 66
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1968

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References

1 The terms “strait”, “straits” and “channels” are used to describe a natural narrow strip of navigable water as opposed to canals which are artificial waterways. The latter are not within the scope of this paper.

2 The Tiran Straits are situated at the entrance to the Gulf of Aqaba, connecting it with the Red Sea.

3 U.N. Doc. A/Conf. 13/L 52.

4 De Jure Belli Ac Pacis, Book II, chap. 2, XII and XIII (Kelseay transi.).

5 Art. 14, Convention on Territorial Sea and Continguous Zone, Doc. A/Conf. 13/L 52.

6 Art. 2, Convention on High Seas, Doc. A/Conf. 13/L 53.

7 Art. 16 para. 4 supra n. 3.

8 This paragraph was adopted by thirty-one votes to thirty with ten abstentions, after long and tiresome discussions. (U.N. Conference on the Law of the Sea, Official Records, II & III).

9 Bruel, E., International Straits (1947) II.Google Scholar

10 Ibid.

11 Martens, , N.R.G., XII, 20 ser. 491.Google Scholar

12 Secretary Buchanan to Flennikan, Minister to Denmark, October 14, 1848 (House ex documents 108, 33 Cong. 1, sess. 38–39), addressing himself to the problem of passage in the Danish straits, wrote : “Under the public law of nations it cannot be pretended that Denmark has a right to levy duties on vessels passing through the Sound from the North Sea to the Baltic Sea….Even if such straits be bound on both sides by territory of the same sovereign and at the same time so narrow as to be commanded by cannon-shot from both shores, the exclusive territorial jurisdiction of that sovereign over such strait is controlled by the right of other nations to communicate with seas thus connected.”

13 Oppenheim, , International Law (3rd ed. 1920) I, 349Google Scholar; De Vattel, , The Law of Nations (1839) para. 282.Google Scholar De Vattel introduced the requirement of innocent passage. Treaty of Lausanne, art. 23, dealing with the Dardanelles, the Sea of Mar mora and the Bosporus (28. L.N., T.S. 13).

14 Record of the Fifth Assembly, plenary meetings, 125.

15 (1926) 25 Revue de Droit International et Diplomatique (Tokyo).

16 (1929) 23 A.J.I.L. Supp., 243.

17 The committee, Mr. Castro-Ruiz, Mr. François, Sir Cecil Hurst, Prof. Bassdevat and Mr. Pilotti, was set up under the Council's resolution to appoint “a preparatory committee composed of five persons possessing a wide knowledge of international practice, legal precedents and scientific data relating to the questions.”

18 L.N. Doc. 44. M. 21. 1928 V; see supra n. 16.

19 L.N. Doc. 74 M. 39. 1929 V, Basis for discussion drawn up for the Conference by Preparatory Committee II Territorial Waters; (1930) 24 A.J.I.L. Supp., 25.

20 Publication of the League of Nations, V, Legal Questions, V. 7, 181.

21 Ibid. 252.

22 Ibid. 246.

23 This case is to be distinguished from the Corfu incident in 1923. As a result of the sinking of one British warship and damage caused to another by the explosion of anchored automatic mines within Albanian territorial waters, 86 officers and men were killed or injured. Albania was found responsible and bound to pay due compensation.

24 Pleading I.C.J. (1950) I, 40.

25 Ibid. II, 34–35.

26 Albanian counsel said : “The observation… was only an explanatory note in serted at the end, in a spirit of compromise without any discussion on such a profound subject having taken place”, to which British counsel replied that it was supposed to have been art. 19, and only because the sub-committee had failed to agree as to the extent of territorial waters, had it been inserted as an observation.

27 Ibid. III, 386.

28 I.C.J. (1949) 28.

29 Doc. A/CN 4/53.

30 According to De Vattel, op. cit. 292, however, international law recognizes the feature of “common use to all or several nations”.

31 Doc. A/CN 4/77, art. 26, par. 4.

32 In a note verbal dated March 21, 1955, to the United Nations: (1955) I.L.C. Year Book, II, 51.

33 Ibid I, 98.

34 This point is discussed below when dealing with the internationality test.

35 This point is discussed below when dealing with the question whether it is a new rule or a new approach to the old r. 36.

36 On September 9, 1964.

37 U.S. v. California 381 U.S. 139: “The definition of inland water as used in the act should conform to the Convention on the Territorial Sea and the Contiguous Zone.”

38 Doc. A/Conf. 19/L 53; U.N. Conference on the Law of Sea, II, 135. Art. I, Convention on the High Sea, reads : “the term ‘high sea’ means all parts of the sea that are not included in the territorial sea or International Waters of a state.”

39 Gross, L., “The Geneva Conference on the Law of the Sea and the Right of In nocent Passage through the Gulf of Aqaba” (1959) 53 A.J.I.L. 565, 583.Google Scholar

40 I.C.J. (1949) 28–29.

41 Judge Azvedo, ibid. 106.

42 Bruel, E., International Straits 42.Google Scholar It is interesting to note that out of a very long list of about forty authorities cited by Bruel, only three (Walter Schucking, Munch Fritz and Rudolf Laum) mentioned the test of importance.

43 British Year Book of International Law, 1950, 28.

44 R. R. Baxter, The Law of International Waterways; Ch. Selak, B.. “A Consideration of The Legal Status of the Gulf of Akaba” (1958) 52 A.J.I.L. 660.Google Scholar

45 (1955) I.C.L. Year Book I, 149.

46 Ibid. 259.

47 The word “normally” was later omitted by the Geneva Conference, thus no question of a new test arises today. The delegate of the United Kingdom felt that adding “normally” would make the rule much more ambiguous andcause trouble in the future. At the U.N. Conference on the Law of the Sea, 1958 III, 95, Mr. Zourek again attempted to change the definition by using the term “Strait of international interest” but failed.

48 Comments by Governments, Doc. A/CN 4/49/Add. 1; (1956) I.L.C. Year Book II, 55, part IV.

49 (1959) I.L.C. Year Book I, 202. It seems that François made a serious mistake in stating that the width of the Gulf was never more than twice that of the territorial sea. Thus there would be no belt of high sea on the Gulf. The facts are that the Gulf is seven to 17 miles wide and the claims for a territorial belt (at least until 1956) were no more than six miles.

50 Basis of Discussion drawn up for the Conference. L.N. Doc. C 74 M. 39, 1929; (1930) 24 A.J.I.L. Supp., 25.

51 Ibid. 252.

52 (1956) I.L.C. Year Book 203.

53 Saudi-Arabia Territorial Waters Decree, dated May 28, 1949. Egypt has a similar Decree.

54 The Strait Base Line System of measuring that was adopted in some cases at Geneva in 1956 (Art. 4 of the Convention on Territorial Seas) may in practice enlarge the territorial belt.

55 See supra, n. 11.

56 Dean, Arthur H. (1958) 52 A.J.I.L. 623Google Scholar, writes: “The Geneva Conference thus, in a politically charged area, achieved agreement to write a new and beneficient rule into international law.”

57 U.N. Doc. A/Conf. 13/C.l L. 37, U.N. Conference on the Law of Sea, III, 218.

58 Ibid. 51, 224.

59 Ibid. 223.

60 It is possible that no one wanted to use this kind of argument in order to avoid encouraging the tendency to enlargement.

61 op. cit. n. 57 L. 39.

62 On the problem of subjective and objective standards, see Gross, Leo, “The Ge neva Conference on the Law of the Sea and the Right of Innocent Passage Through the Gulf of Aqaba” (1959) 53 A.J.I.L. 565, 583.Google Scholar

63 Supra n. 57, L. 71, 231. The Netherlands, Portugal and Great Britain formed “the three powers”. It was actually a four power group, since the United States offered to omit the word “normally”.

64 Supra n. 57, 96.

65 Ibid. 94.

66 Jessup, Philip E.. “The Geneva Conference on the Law of the Sea; A Study in International Law-making” (1958) 52 A.J.I.L. 723.Google Scholar

67 Baxter, R. R., The Law of International Waterways (1964), 215–16.CrossRefGoogle Scholar

68 Selak, , “Legal Status of the Gulf of Aqaba” (1958) 52 A.J.I.L. 696.Google Scholar

69 Oppenheim's, International Law, ed. Lauterpacht (7th ed.) II, 546–47.Google Scholar

70 Ibid. 547.

71 Ibid. 556.

72 Ibid. 597.

73 Hyde, International Law, seems to indicate that officially the U.S. government follows the traditional approach as defined by Lauterpacht, but he is aware of the new kind of agreement which has a permanent character.

74 Jerusalem, Magnes Press, the Hebrew University, 1961.

75 (1956) 50 A.J.I.L. 880.

76 Ibid. 906.

77 Op. cit. n. 74.

78 Ibid. 42.

79 Levie, op. cit. 882. See Faushille, P., Traité de droit international public (8th ed.) II, 326Google Scholar, who is one of the authorities from whom Levie derives.

80 Stone, , Legal Controls of International Conflicts 641.Google Scholar

81 Ibid. 644.

82 Gross, L.: “Right of Passage through the Strait of Tiran” (1957) 8 Fletcher Alumini Rev.Google Scholar; “Passage Through the Suez Canal of Israeli Bound Cargo and Israel ships” (1957) 51 A.J.I.L.; “The Geneva Conference on the Law of the Sea and the Right of Innocent Passage through the Gulf of Aqaba” (1959) 53 A.J.I.L. 565.

83 “Passage Through the Suez Canal of Israeli Bound Cargo and Israel Ships” (1957) 51 A.J.I.L.

84 See Baxter, R. R., “The definition of war”, 16 Revue Egyptiènne de droit interna tional 1.Google Scholar

85 Oppenheim, op. cit. 202.

86 Ibid. 255.

87 U.N. Doc. S/1264/Rev. I, Treaty No. 1 : 654, vol. 42, 251.

88 Ibid.

89 Official record, 4th year, No. 36, 6.

90 U.N. Doc. S/2298/Rev. I; Official records 558th meeting S/2322.

91 Feinberg, op. cit. n. 74.

92 Article 38, Statute of International Court of Justice.

93 Stone, op. cit. 646.

94 Feinberg, op. cit. n. 74; He cites more of the “most highly qualified publicist” who has called for a review “to break away from old dichotomies approach…acknowledging in law as in fact that there is a third status”. (Jessup, 1954) 48 A.J.I.L. 100.

95 Legal Effect of the Illegal War (1960) and The Frontiers of International Law (1962).

96 The Frontiers of International Law, 247.

97 (1954) I.L.C. Year Book I, 183.

98 Ibid. 94.

99 A/CN/4/97/ add. 2 par. 96; (1956) I.L.C. Year Book 200.

100 U.N. Geneva Conference on the Law of the Sea (1958) III, 3.

101 See Feinberg, Oppenheim and Baxter on the definition of war.

102 The rule in the Corfu Channel case: the court stated that in spite of “bad neighbourly relations, the law of war will not be adopted”.