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沈相閏 全北大學校 1981 論文集 Vol.23 No.-
The Geneva Convention on the territorial Sea and the Contiguous Zone of 1958 contains only one paragraph ―Art. 16 para. 4― which refer to the passage through international straits. Without distinction from the territorial sea in general, also in the territorial waters of the coastal states of strait, international shippings enjoy the right of innocent passage. In the current law of innocent passage, however, there are above all three areas which are not clear or contain gaps: the substance of the "security" of the coastal state, violaion of which deprives a passage of its innocent character; the admissibility of a coastal state's preventive measures against a vessel; the scope of a coastal state's power to regulate a passage and the means of sanction. As a consequence of these uncertainties it is left largely to the discretion of a coastal state whether a passage offends against peace and security. Beside these questional points which belong to juridical interpretation of the convention, some factors have fundamentally changed the actual conditions and legal relations in respect of exploitation of the sea. Above all, they are, on the one hand, the ever more serious dangers to traffic and environment which emanate from shipping, and, on the other, the general tendency to enlarge the area of the territorial sea to 12 nautical miles width. As the tendency towards 12-mile wide territorial seas bring to many straits―121 new straits―the status of territorial waters, a variety of military and strategic considerations inevitably arise. Considering above-mentioned conditions, the Third United Nations Conference on the Law of the Sea(which started in 1973 and issued the Informal Composite Negotiating Text/Rev. 2 in 1980, its ninth session) introduce a new regime of the passage through international straits. Article 38 of ICNT provides: 1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage which shall not be impeded…… 2. Transit passage is the exercise in accordance with this part of the freedom of navigation and overflight soly for the purpose of continuous and expeditious transit of the strait…… Reviewing the cumulative process of the conference, it may be said that the right of transit passage linked directly or delicately with 12-mile breadth of the territorial waters has got a kind of consensus. There could no longer be any changes of substance that affect the consensus, because the "balance" of the convention is so delicate that any serious revisional action would surely prove destructive. Thus estimating present stage of the conference and desiring its successful conclusion, we may keep silence, for the time being, in regard to the right of transit regulated in the Negotiating Text. We cannot, however, give up ultimately our view that request, for the benefit of Strait-States in future, some relevant considerations in respect to the right of transit of warships(including submarines) and military aircraft.