The interest in the rights of navigation through straits dates as far back as the
Peloponnesian War ( 422
BC).
Grotius early in the 17th century recognized the right of the owner of the shore to appropriate the water expanses that can be seen from the shore, and an obligation of the owner to allow innocent (unarmed) navigation through these waters. Grotius also suggested the right for the owner to collect fees for such passage. The latter practice, supported by
Puffendorf and later by
de Vattel, persisted until the mid-19th century, when
Denmark dropped the levies for the passage of
Danish belts and
sunds (cf. the
Copenhagen Convention of 1857 abolishing the
Sound Dues that were collected for four hundred years). De Vattel was the first to highlight the difference between the straits that "serve as a mean of communication between two [high] seas" and the one without such function. The passage of ships through the former cannot be prohibited as long as it does not adversely affect the security of the coastal state. While Vattel based his ideas on the
Roman law concept of
right of way, many other 18th century thinkers supported the right of a coastal state to exclude foreign ships from its territorial waters. With the arrival of
steamships in the 19th century, the ability to navigate along the shortest route became a significant economic factor, spurring development of special regimes for transit, similar to high seas. At the same time, a distinction was made between the wartime and peacetime navigation. A major effort on codification of the legal regime for the straits was made by the
Institut de Droit International (IDI) between 1894 and 1912. 1894, in particular, saw the proclamation of the
innocent passage principle in those straits where there are no high seas lanes due to overlapping territorial waters. Some work was also done by the
International Law Association (ILA) between 1893 and 1910 and
Inter-Parliamentary Union between 1910 and 1915. Like the IDI's declarations, these efforts were stopped by the
First World War, no international agreements followed, and the discussion at the
Second Peace Conference (1907) only made it clear that the international straits require their own regime. No agreement was reached at the
1930 Hague Conference on Codification either. Overall, per the 1992 statement of the
Office for Ocean Affairs and the Law of the Sea, "the treatment of the question of straits [...] between 1894 and 1930 was unsatisfactory". The "now classic" book on international straits by
Erik Brüel,
International Straits. A Treatise on International Law, was published in the 1947. The
Corfu Channel case at the
International Court of Justice (ICJ) in 1949 established the rules for the innocent passage through a strait: • the international strait is defined geographically by being a connection between two areas of high seas, it does not have to be a route heavily used by international shipping; • warships have the right of innocent passage through such strait that cannot be denied or subject to conditions in peacetime. Still, the
incident that was considered in the case had shown the limits of innocent passage: the rules of this regime makes the warships participating in the
freedom of navigation operation vulnerable in case of encounter with the navy of a coastal state. The
Convention on the Territorial Sea and the Contiguous Zone, adopted in 1958 by
UNCLOS I, codified the work of the
International Law Commission done since 1949. Regarding the straits, the convention introduced a non-suspendable innocent passage for those international straits connecting high seas to a territorial sea of a foreign state. Otherwise, international straits were governed by the same innocent passage provisions as other territorial waters. Major changes to strait passage were made by
UNCLOS III (1982) that were driven both by objective factors (a dramatic increase in sea and air traffic, concerns about pollution and accidents in straits, and the general desire of coastal states to increase their territorial sea to 12 nautical miles) and the common interest of the United States and Soviet Union in opening sea and air passage through the international straits. Although during the planning of the conference it was declared that it will concentrate on the exploitation of
sea beds, in practice it was to large extent driven by the desire of "the United States and the Soviet Union [...] to protect their strategic interests in transiting the oceans, particularly international straits". As a result of political compromise, UNCLOS III adopted its "crowning achievement", a new
transit passage regime with no previous legal precedents. This regime provided the coastal states with much less enforcement ability in the straits. ==References==