Legal Framework for International Straits Prior to 1982In light of the paramount importance of international straits for sea communication, the freedom of navigation through straits has attracted much attention in the international community. A question is whether or not foreign vessels enjoy the right of innocent passage through international straits between one part of the high seas and another under customary law. The ICJ, in the 1949 Corfu Channel case, gave a positive answer to this question, by stating:It is, in the opinion of the Court, generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace. Reflecting the dictum in the Corfu Channel judgment, Article 16(4) of the TSC provided:There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State. As this provision relates to the right of innocent passage in the territorial sea, it is clear that the right does not comprise the freedom of overflight. On the other hand, unlike the right of innocent passage through the territorial sea in general, the exercise of the right through international straits shall not be suspended. To this extent, the right of innocent passage through international straits is more strengthened than the right of innocent passage through the territorial sea in general. In light of the Corfu Channel judgment, it seems that foreign warships also possess the right of non-suspendable innocent passage set out in Article 16(4).As noted earlier, the Corfu Channel judgment referred only to straits ‘between two parts of the high seas'. By referring to straits ‘between one part of the high seas and another part of the high seas or the territorial sea of a foreign State', however, Article 16(4) extended the scope of straits. Thus it may be said that Article 16(4) is a result of the development of customary law, not simple codification of the law. Typology of International Straits Under the LOSCAccording to a survey, there are 52 international straits less than 6 nautical miles in width, international straits between 6 and 24 nautical miles in width, and 60 international straits more than 24 nautical miles in width. By establishing the 12-mile territorial sea, many straits which include a strip of high seas fall within the territorial sea of the coastal States. The ‘territorialisation' of international straits would compromise the freedom of overflight of (military) aircraft and navigation of foreign warships, including submerged submarines. Thus maritime States urged the introduction of a new regime relating to the right of ‘transit passage',…
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