Facts
On May 15, 1946 British cruisers "Orion" and "Superb", while passing a southerly direction through the Strait of Corfu, were shelled by the Albanian artillery. Five months later, on October 22, a squadron of British warships left the port of Corfu and headed to the exit through the strait of the same name to the north. Previously English ships cleared the strait from mines. However, not far from the Gulf of Sandra, two British ships ran into mines and suffered considerable damage. On November 13, 1946 British minesweepers again carried out an operation to clean up the strait from mines. International Court of Justice had to give an answer to the question whether the sovereignty of Albania was violated by the acts of British warships in the Corfu Channel on 22 October and 13 November 1946.
Discussion
The British side insisted that the Strait of Corfu is international because it connects two parts of the high seas. According to the Albanian side, the Strait of Corfu could not be considered as international, because it was not the only possible passage between the Aegean and the Adriatic Sea and had been used mainly for coastal navigation. The Court found it possible, referring to international practice, to declare that the waters in the Strait of Corfu may be subject to a special regime of navigation, since this strait is used for international navigation and connects two parts of the high seas. Based on international custom, in times of peace all states are entitled to send their warships through international straits, without the prior authorization of the coastal state, if such passage is peaceful. The Court also stressed that the decisive criteria for determining international strait are: a) the geographical location of the Strait, which is to connect the two parts of the high seas, and b) its actual use for international navigation. In the doctrine of international law, the first criterion is called "geographic", the second - "functional". Moreover, the analysis of the functional criteria should take into account the number of vessels using a particular Strait, as well as the number of States that own these vessels. The Court relied on the fact that the Strait of Corfu was used by military ships for 80 years, as well as by a large number of merchant vessels and that one of the sides of the Strait belongs to Greece.
The British side argued that the passage through the Strait of Corfu of both commercial and military ships does not require the permission of the coastal state. According to Albania, foreign warships could enter its territorial waters in the Strait of Corfu only with prior permission. The Albanian Government has submitted to the Court the materials from which it is clear that it is, given the political situation and, in particular, the existence of a "state of war" with Greece, said in 1946 that foreign ships must seek permission to enter the territorial waters of Albania. England also believed that the permit is not required, even for the passage through territorial waters, as the passage is innocent, i. e. does not affect the interests of the coastal state. The Court stated that “it is generally accepted as the custom of international law in peacetime, government could send its warships through the straits between the two parts of the high seas used for international navigation, without seeking advance permission of the coastal state, provided that the passage is innocent. Unless otherwise specified in international conventions, the coastal state has no right to prohibit in peacetime, this kind of passage through the Straits. "
The court issued a unanimous and affirmative action on the question of whether the UK had violated the sovereignty of Albania actions of its military fleet by demining Strait of Corfu on 12 and 13 November 1946. The UK Government did not dispute the fact that the operation to clean up the Strait of Corfu from mines, accompanied by the entry into Albanian water of its naval forces, had been carried out contrary to the directly expressed will of the Albanian government. To justify their actions, the British side referred to the allegedly obtained permission of the Mediterranean International Commission for Demining and the need to immediately detect mines that caused the explosions before they could be removed. The Court did not agree with these arguments. It acknowledged that the International Mediterranean Committee gave permission for clearance only on condition of Albania's consent.
The Court's decision turned out to be inconsistent: on the one hand, the Court found that the UK grossly violated the sovereignty of Albania; on the other hand - Albania had to compensate the damage caused amounting to over 200 thousand pounds. Finally, the dispute was settled only in 1992, when Albania agreed to pay compensation to the UK, while the United Kingdom was obliged to return the Albanian gold kept in "Bank of England" since the Second World War.
Legal regime of international straits
Nowadays, the legal regime of straits used for international navigation is determined by customary and treaty law. The custom, which was mentioned in the decision of the International Court of Justice in 1949 in an incident in the Strait of Corfu - the freedom of passage of ships through international straits, was recognized in the international law. Later, it included freedom of flight of aircraft over such straits. These freedoms as the rules of customary law apply to the Straits of Gibraltar, the English Channel, Magellan, Malay and others.
According the Convention on the Territorial Sea and the Contiguous Zone of 1958, a provision on the inadmissibility of the suspension of the innocent passage of foreign ships through straits used for international navigation was introduced (para. 4, Art. 16).
In connection with the adoption of the 12-mile width of the territorial waters in the United Nations Convention on the Law of the Sea 1982, there was a real possibility of overlapping territorial sea of more than 100 straits used for international navigation. In order to guarantee the freedom of navigation through such straits and flight of aircraft over them, this Convention introduced the principle of transit passage. According to this principle, in straits used for international navigation, all ships and aircraft have the right of transit passage, which shall not be impeded, except in cases specified by the Convention. Transit passage is the implementation of freedom of navigation and overflight solely for the purpose of transit of the strait from one part of the high seas to another. (Sec. 2, Art. 38).
During the passage, all ships and aircraft must refrain from any actions that are not related to normal transit, unless necessary by force majeure or distress. Thus, all states must refrain from threat or use of force against sovereignty and independence of border States or from other violation of the principles of international law. (Art 39.) Transit passage through straits used for international navigation, does not affect in other respects neither the legal status of the waters forming such straits nor the exercise by States bordering the straits of their sovereignty or jurisdiction over such waters and air space above them, bed and subsoil. The rules governing the regime of straits used for international navigation, shall not apply to those channels, whose legal status is defined by special international agreements. Such agreements are, in particular, with respect to the Baltic and the Black Sea straits.
Legal regime of the Black Sea straits.
These straits is the Bosporus and the Dardanelles, connecting the Black Sea and the Mediterranean. In 1936 in Montreux (Switzerland), the Convention on the regime of the Black Sea straits was signed, which operates until this day and determines the order of use of those straits. The right to free passage is directly affected by the state of war or peace with the Turkey.
The provisions of the Convention determine that the merchant ships of all States enjoy freedom of navigation and transit day and night; for the passage of each net ton Turkey collects sanitary and light dues. This rule remains in force during the war, if Turkey does not take part in it. If Turkey is belligerent, the freedom of navigation and transit in the channels is reserved in the daytime for states that are not in a state of war with Turkey.
The regime of passage of warships through the straits is defined by the Convention based on their belonging to Black Sea or non-Black Sea states. The Black Sea states have the right of passage, according to preliminary notification through diplomatic channels to the Turkish government not less than in 8 days. Battleships must pass one by one, accompanied by not more than two destroyers. Only the Black Sea States may carry their submarines during the day and above the surface, provided that they are purchased outside the Black Sea, or if they need repair beyond this sea. Turkey must be informed about it in advance.
Non-Black Sea states are allowed to pass through the straits only light surface ships with a displacement of up to 10 thousand tons, or those that have the caliber of guns no more than 8 inches. The total tonnage of ships of all non-Black Sea countries in the Black Sea should not exceed 45 thousand tons, and the ships of one of these states no more than 30. Turkey should receive a 15 day notice.
During the war, where Turkey is not a belligerent, passing through the Straits of warships of warring states is prohibited. When Turkey is belligerent, the passage of warships through the straits completely depends on its decision.
Works Cited
Attard, David J, M Fitzmaurice, and Gutiérrez N. A. Martínez. The Imli Manual on International Maritime Law: Volume 1. , 2014. Internet resource.
Brownlie, Ian. Principles of Public International Law. Oxford [England: Clarendon Press, 1990. Print.
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania). ICJ. Web. 20 February 2015.
Convention on the Territorial Sea and the Contiguous Zone of 1958. UN. Web. 20 February 2016.
Evans, Malcolm D. International Law. Oxford: Oxford University Press, 2006. Print.
Harris, Jack W. Maritime Law: Issues, Challenges and Implications. Hauppauge, N.Y.: Nova Science Publishers, 2011. Internet resource.
The Montreux Convention Regarding the Regime of the Straits. NUS. Web. 20 February 2016.
United Nations Convention on the Law of the Sea 1982. UN. Web. 20 February 2016.
