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what is the meaning of INTERNATIONAL STRAITS and its legal issues (typology and roles)
Legal Framework for International Straits Prior to 1982
In 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 LOSC
According to a survey, there are 52 international straits less than 6 nautical miles in width,
153 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’, which was finally embodied in Part III of the LOSC. It is
important to note that the agreement on the 12-mile territorial sea was closely linked to
ensuring the freedom of navigation and overflight through international straits. The
Convention divides international straits into two main rubrics according to the applicability
of Part III, namely, straits to which Part III applies and straits outside the scope of
Part III.
International Straits Under Part III of the LOSC
First, we shall examine straits where Part III applies. In this regard, it must be noted that Part
III does not affect any areas of internal waters within a strait, except where the establishment
of a straight baseline in accordance with the method set forth in Article 7 has the effect of
enclosing as internal waters areas which had not previously been considered as such. It
would seem to follow that basically Part III applies to international straits as the territorial sea. The straits under Part III of the LOSC contain two types of straits: straits to which the
regime of transit passage applies and straits to which the right of innocent passage applies.
The first type concerns straits to which the regime of transit passage applies. In this regard, Article 37 provides:
This section applies to straits which are used for international navigation between one part of
the high seas or an exclusive economic zone and another part of the high seas or an exclusive
economic zone.
This provision contains two criteria for identifying international straits under Part III.
The first is the geographical criterion. Such straits are those connecting ‘one part of the
high seas or an exclusive economic zone and another part of the high seas or an exclusive
economic zone’. The second is the functional criterion, namely ‘straits used for international
navigation’. Concerning the relationship between the two criteria, the ICJ, in the
Corfu Channel case, seemed to consider that the geographical criterion provided the primary
criterion. In the words of the Court:
It may be asked whether the test is to be found in the volume of traffic passing through the
Strait or in its greater or lesser importance for international navigation. But in the opinion of
the Court the decisive criterion is rather its geographical situation as connecting two parts of
the high seas and the fact of this being used for international navigation.
The functional criterion raises an issue as to how it is possible to identify ‘straits used for
international navigation’. In this regard, it is argued that a strait must actually be used for
international navigation as a useful route for international maritime traffic in order to meet
the functional criterion. Mere potential utility would be insufficient.
As will be seen, transit passage applies to the strait between one part of the high seas or
an EEZ and another part of the high seas or an EEZ in accordance with Article 38(1). An
example of international straits to which the regime of transit passage applies may be
provided by the Dover Strait. In some cases, a question arises of whether or not a strait
can be considered as a ‘transit passage’ strait. One might take the Canadian Northwest
Passage through Canada’s Arctic archipelago as an example. This passage is a series of
connected straits that weave through the maritime features which constitute the Canadian
Arctic Archipelago. Recently, growing attention has been paid to the Northwest Passage
because the presumed decline in sea ice in the Arctic Ocean may open a navigational route
connecting the Atlantic and the Pacific through the Northwest Passage. In 1985, Canada
drew straight baselines around its Arctic archipelago and, consequently, the Northwest
Passage fell within Canada’s internal waters. Canada thus rejected ‘any suggestion that the
Northwest Passage is such an international strait’. However, the United States has taken
the position that the Passage is a strait used for international navigation subject to the
transit passage regime. The disagreement was circumscribed by the 1988 Agreement on
Arctic Cooperation between Canada and the United States. In this Agreement, the United
States and Canada agreed to ‘undertake to facilitate navigation by their icebreakers in their respective Arctic waters and to develop cooperative procedures for this purpose’.97 The
Agreement also maintains the position of both parties by providing in Article 4 that:
Nothing in this agreement of cooperative endeavour between Arctic neighbours and friends nor
any practice thereunder affects the respective positions of the Governments of the United
States and of Canada on the Law of the Sea in this or other maritime areas or their respective
positions regarding third parties.
A similar question arises with regard to the legal status of the Northeast Passage, north of
Russia.98 By decree of 15 January 1985 the Soviet Union established straight baselines in
the Arctic Ocean. As a consequence, major straits which may be portions of the Northeast
Passage or the Northern Sea Route became part of Russian internal waters. Nonetheless, the
United States asserted that the Northern Sea Route constitutes international straits. In
light of the relatively limited usage of foreign-flagged vessels passing through these straits,
however, some doubts were expressed by writers regarding whether the straits can be
considered as those ‘used for international navigation’ where the right of transit passage
applies. In any case the Russian Federation adopted a series of national legislations
concerning the Northern Sea Route, such as the Federal Law of 28 July 2012 and Rules of
Navigation in the Water Area of the Northern Sea Route. In particular, the 2013 Rules of
Navigation sets out the procedure for obtaining permission to navigate the Northern Sea
Route.
In addition to this, some mention should be made of the Straits of Malacca and
Singapore. Traffic transiting the Straits of Malacca and Singapore is heavy because they
form one of the world’s major choke points for international trade and commerce. The
Joint Statement of the Governments of Indonesia, Malaysia and Singapore of 16 November
1971 stated that ‘the Straits of Malacca and Singapore are not international
straits while fully recognising their use for international shipping in accordance with
the principle of innocent passage’. Later, however, these three States became parties
to the LOSC. As a consequence, one can say that transit passage presently applies to
the Straits of Malacca and Singapore in accordance with relevant provisions of the
Convention.
A second type relates to straits to which the right of innocent passage applies. Such straits include:
• straits which are excluded from the application of the regime of transit passage under
Article 38(1) of the LOSC, and
• straits between a part of the high seas or an EEZ and the territorial sea of a foreign State.
‘Straits which are excluded from Article 38(1)’ are straits formed by an island of a State
bordering the strait and its mainland, and there exists seaward of the island a route through
the high seas or through an EEZ of similar convenience with respect to navigational and
hydrographical characteristics. A good example is the Messina Strait. Examples of ‘straits
between a part of the high seas or an EEZ and the territorial sea of a foreign State’ are the
Tiran Strait and the Gulf of Aquaba.
International Straits Outside the Scope of Part III of the LOSC
The second rubric concerns straits to which Part III of the LOSC does not apply. Three types
of straits are included in the rubric.
First, under Article 36 of the LOSC, Part III does not apply to straits used for international
navigation which contain a route through the high seas or through an EEZ of similar
convenience with respect to navigational and hydrographical characteristics (type B-1).
Article 36 appears to imply that if a route through the high seas or through an EEZ in the
international strait is not convenient with respect to navigational and hydrographic characteristics,
Part III will apply to the territorial sea within the strait. In relation to this, it is
interesting to note that Japan has limited its territorial sea claim in five international straits,
namely the Soya Strait, the Tsugaru Strait, the Tsushima Eastern Channel, the Tsushima
Western Channel and the Osumi Strait, creating a corridor of the EEZ in the middle of these
straits. As a result, these five straits pertain to a strait ‘which contains a route through an
EEZ of similar convenience’ under Article 36 of the LOSC.
Second, Part III does not apply to straits in which passage is regulated in whole or in part
by long-standing international conventions in force specifically relating to such straits
pursuant to Article 35(c) (type B-2). While the LOSC does not specify the straits to which
Article 35(c) applies, examples may be briefly summarised as follows:
(i) The Turkish Straits: these straits include the Dardanelles, the Sea of Marmara, and the
Bosphorus, which connect the Black Sea and the Aegean Sea. The Turkish Straits are
governed by the 1936 Convention Regarding the Régime of the Straits (Montreux Convention).
The Convention contains a set of special rules for, inter alia, the free passage of
warships, merchant vessels and authorisation for civil aviation.
(ii) The Danish Belts and the Sound: these straits comprise the Little Belt between Jutland
and the island of Funen, the Great Belt between Funen and the island of Zealand, and the
Öresund Sound between Zealand and Sweden. These straits are regulated by the Treaty for
the Redemption of the Sound Dues between Denmark and European States of 14 March
1857 (the Treaty of Copenhagen). Article I of the Convention provides for a right of
passage of foreign ships through the Danish straits, by stating: ‘No vessel shall henceforth,
under any pretext whatsoever, be subject in its passage of the Sound or the Belts to any
detention or hindrance.’ The rights provided in the Copenhagen Treaty were accorded to
ships of all States, including ships from third States.
(iii) The Strait of Magellan: the Strait between Argentina and Chile connects the Pacific
and the Atlantic Oceans. Article 5 of the 1881 Treaty between Argentina and Chile
confirmed the neutralisation of the Strait of Magellan and free navigation to the flags of
all nations. This was confirmed by Article 10 of the 1984 Treaty of Peace and Friendship
between Argentina and Chile.
(iv) The Strait of Gibraltar: this strait joints the Mediterranean Sea and the Atlantic
Ocean. The free passage of the Strait of Gibraltar was declared in the 1904 Anglo-French
Declaration (Article 7), and was confirmed by Article 6 of the 1912 Treaty between
France and Spain regarding Morocco.
(v) The Åland Strait: upon signing the LOSC, Finland and Sweden declared that Article 35
(c) of the Convention is applicable to the strait between Finland (the Åland Islands) and
Sweden. The applicable treaties are the 1921 Convention on the Non-Fortification and
Neutrality of the Åland Islands and the 1940 Agreement between Finland and the Soviet
Union concerning the Åland Islands, which obliged Finland to demilitarise the Åland
Islands and not to fortify them.
The third category of straits to which Part III does not apply involves international straits
within archipelagic waters (type B-3). Navigation in the archipelagic waters will be examined
in section 5 of this chapter.
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