Abstract
The United Nations Convention on the Law of the Sea of December 10, 1982 has supposed a revolutionary change in the regime of straits used for international navigation, which was substantially altered. Although it certainly consolidated some aspects of the legal regime in force up to then, for example, the legal ‘indefiniteness’ of this maritime area or the application of the right of innocent passage, although this applied to only some straits, this did not prevent the introduction of important innovations which entailed a radical change of regime.
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Notes
- 1.
See Moore (1980, pp. 120–121).
- 2.
Article 34 expressly provides the following:
1. The regime of passage through straits used for international navigation established in this Part shall not in other respects affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil.
2. The sovereignty or jurisdiction of the States bordering the straits is exercised subject to this Part and the other rules of international law.
- 3.
See Second Committee, 3rd meeting (1974), p. 32, II Off. Rec., 102.
- 4.
The regime of innocent passage today constitutes a totally accepted norm in the International Community already codified in the 1958 Geneva Convention. We do not wish to analyse the historical evolution of this right. An analysis of this right can be seen, among others, in Ghosh (1980, pp. 216–235); Ngantcha (1990); O’Connell (1984, pp. 259–298); Przetacznik (1977, pp. 222–236).
- 5.
See Lucchini and Voelckel (1996, p. 206).
- 6.
Cf. Nandan and Rosenne (1993, p. 156).
- 7.
The Chicago Convention came into being on April 4, 1947, and when Montenegro joined on February 12, 2007, there were 190 States ascribed. The text of the Convention can be seen at http://www.icao.int/icaonet/arch/doc/7300.html.
- 8.
See Doc. LC/26-WP/5-1 (1987), in Netherlands Institute for the Law of the Sea, Documentary Yearbook, 1987, p. 250.
- 9.
Cf. Ngantcha (1990, p. 56).
- 10.
See Nandan and Rosenne (1993, pp. 160–161).
- 11.
See O’Connell (1984, p. 269).
- 12.
Cf. Doc. A/AC.138/SC.II/L.42 and Doc. A/CONF.62/C.2/L.19, respectively.
- 13.
We must state that ports are part of the internal waters of States, consequently, these are subject to the territorial sovereignty of the coastal State, as stated by the ICJ in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Case (merits), which also stressed that “it is also by virtue of its sovereignty that the coastal State may regulate access to its ports” (See ICJ Reports, 1986, pa. 213, p. 101).
- 14.
Cf. Doc. A/CONF.62/C.2/L.16, art. 3, p. 3, and Doc. A/CONF.62/WP.8/Rev.1, article 17, p. 2, respectively.
- 15.
See Treves (1985, pp. 754–755).
- 16.
See O’Connell (1984, pp. 269–270).
- 17.
The only harmful act expressly referred to by the 1958 Geneva Convention is the passage of fishing vessels which fail to comply with the legislation of the coastal State (article 14.5).
- 18.
See Treves (1985, pp. 757–758).
- 19.
Article 301 sets out:
Peaceful uses of the seas:In exercising their rights and performing their duties under this Convention, States-Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.
- 20.
See Caminos (1987, pp. 141–142).
We must point out that this is strengthened by the provisions in article 24.1, which prohibits the coastal State from de facto or de iure discriminating against the vessels of any State or against those which transport goods to or from any State.
- 21.
See ILC Yearbook, 1956, II, p. 270.
- 22.
Cf. Lucchini and Voelckel (1996, p. 260).
- 23.
As regards this specific aspect, see Treves (1985, pp. 120–124).
- 24.
See Lucchini and Voelckel (1996, p. 262).
- 25.
Many other international agreements have been adopted in this area within the framework of the IMO, including the Security Code for Nuclear Merchant Ships, the Fundamental Safety Principles of IMO/IAEA, the International Safety Management (ISM Code), the International Ships and Port Facility Security Code (ISPS Code), the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBL Code), or the International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel Plutonium and High-Level Radioactive Waste on Board Ships (INF Code, 2001). These texts can be seen in http://www.imo.org.
- 26.
Declaration made when depositing its ratification instrument, on August 26, 1983. The text can be seen at http://untreaty.un.org.
- 27.
Declarations made at the time of its ratification (Oman, August 17, 1989, and Yemen, July 21, 1987). The text can be seen at http://untreay.un.org.
- 28.
The ratification of Malaysia took place on October 14, 1996. The text of the declaration can be seen at http://untreay.un.org.
- 29.
Cf. Law of the Sea Bulletin, No. 25, 1994, p. 93 et seq.
- 30.
Cf. http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionalist.htm to read the text of the 1978 Law.
- 31.
Cf. Ibidem.
- 32.
Cf. Ibidem.
- 33.
Cf. Ibidem.
- 34.
Cf. Law of the Sea Bulletin, No. 24, 1993, pp. 10 y ss.
- 35.
- 36.
See Ibidem.
- 37.
Cf. Gazzetta Ufficiale No. 110, de 11 de mayo de 1985.
- 38.
As an example, we can cite the French Decree of March 24, 1978, the French Law of January 2, 1979, the German Decree of November 12, 1984, or the Canada’s Oceans Act of December 18, 1996, among others (the texts can be found at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionlist.htm).
- 39.
Cf. Limits in the Sea, No. 36, 8th revision, May 25, 2000.
- 40.
The concept of “warship” is provided by article 29 UNCLOS, in the following terms:
For the purposes of this Convention, “warships” means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.
- 41.
Cf. Lucchini and Voelckel (1996, p. 249).
- 42.
See O’Connell (1984, p. 274); the work we refer to for an analysis of the historical evolution of the doctrinal discussion and of State practice in this regard (pp. 274–294).
- 43.
Cf. ILC Yearbook, 1956, II, p. 276.
- 44.
This is the case of the proposal presented by Malaysia, Morocco, Oman and Yemen (cf. Doc. A/CONF.62/C.2/L.16, article 15.3); of a document presented in 1978 by Argentina, Bangladesh, China, Ecuador, Madagascar, Pakistan, Peru, the Philippines and Yemen; as well as several amendments presented in the course of the Conference in 1982, which were intended to include a sub-section to article 21 (which includes the legislative power of the coastal State), in the sense that it would be allowed to demand previous notification or authorisation from warships.
- 45.
The texts of the declarations can be read at http://untreay.un.org.
- 46.
In 1989 even the U.S.A. and the USSR formalised a joint declaration which was attached to the uniform interpretation of the rules of International Law which regulate innocent passage, in which both stated that all vessels, including warships have the right of innocent passage (cf. ILM., 1989, pp. 1444–1447).
- 47.
The texts of the internal legislation mentioned can be found at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionalist.htm.
- 48.
Cf. Ibidem.
- 49.
Cf. ICJ Reports, 1949, pp. 28–29.
- 50.
The United States protested against the declarations made on ratifying or signing the UNCLOS, demanding previous notification or authorisation of warships in order to cross territorial seas, as well as the internal legislations which impose this prerequisite (cf. Limits in the Sea, No. 36, 8th revision, May 25, 2000).
- 51.
It should be pointed out that, although Royal Decree No. 73 of 1976 abruptly excluded the straits from the notification requirement, the Ordinance of 1999 imposes a limit to this exception as, according to article 3.2, the simultaneous passage of more than three warships of the same nationality through the Great Belt, Little Belt and the Oresund does require previous notification through diplomatic channels (cf. Law of the Sea Bulletin, No. 40, 1999, p. 56).
- 52.
- 53.
This law was adopted by the Socialist Federal Republic of Yugoslavia, but it continues in force in the territory of the new State of Montenegro. In addition, as we stated, when it presented its instrument of succession to the UNCLOS on October 23, 2006, Montenegro declared that “it considers that a coastal State may, by its laws and regulations, subject the passage of foreign warships to the requirement of previous notification to the respective coastal State and limit the number of ships simultaneously passing, on the basis of the international customary law and in compliance with the right of innocent passage (articles 17–32 of the Convention)”. Cf. http://untreaty.un.org.
- 54.
As regards this question of the powers of the coastal State, cf. Yturriaga Barberán (1991a, pp. 248–265).
- 55.
See Nandan and Rosenne (1993, p. 200).
- 56.
See Yturriaga Barberán (1991a, p. 225).
- 57.
See Yturriaga Barberán (1991a, p. 256).
- 58.
Cf. Riphagen (1984, p. 202).
- 59.
This is stipulated in articles 30, 31 and 32 of the Convention, in subsection C, Rules applicable to warships and other government ships operated for non-commercial purposes, together with article 29 which establishes the definition of “warships”.
- 60.
According to Ngantcha (1990, p. 172) the obligations in question do not entail positive measures, such as dredging its territorial sea, the construction of lighthouses or the elimination of remains from the navigation channels. Nevertheless, if the coastal State generates hazards for navigation, for example, the construction of artificial islands, then it is obliged to duly mark these and provide the means required to facilitate navigation.
- 61.
Cf. Scovazzi (1995, pp. 149–150).
- 62.
In fact, this Decree was protested by the United States (cf. Limits in the Seas, No. 112, pp. 70–71).
- 63.
However, we must remember the fact that the conflicts deriving from innocent passage have been fewer than was expected as shown by international practice.
- 64.
See ICJ Reports, 1949, pp. 30–32.
- 65.
Cf. Nandan and Rosenne (1993, p. 226).
- 66.
Cf. The reference in the Division for Ocean Affairs and Law of the Sea (2004, p. 39). The texts of the conventions can be seen at http://www.imo.org.
- 67.
Cf. ICJ Reports, 1949, p. 22.
- 68.
Such measures have been adopted also in other straits that they are outside of the UNCLOS, for example in the Sound there is a traffic separation scheme (COLREG.2/Circ.59, 2007).
- 69.
The IMO is a specialised organisation of the United Nations, created in 1948 (its original name was the International Maritime Consultative Organization), and engaged in the drafting of measures concerning maritime safety. Its headquarters are in London, and currently (February 1, 2010) it has 169 Member States and three Associated Members. To date, it has adopted round about 50 agreements and protocols, as well as more than 800 codes and recommendations on marine safety, prevention of pollution and other related questions.
- 70.
Rule 1(d) sets out that, “Traffic separation schemes may be adopted by the Organization for the purposes of these Rules”.
While Rule 10 establishes, “Traffic separation schemes
(a) This Rule applies to traffic separation schemes adopted by the Organization and does not relieve any vessel of her obligation under any other rule.
(b) A vessel using a traffic separation scheme shall:
(i) proceed in the appropriate traffic lane in the general direction of traffic flow for that lane; (ii) so far as practicable keep clear of a traffic separation line or separation zone; (iii) normally join or leave a traffic lane at the termination of the lane, but when joining or leaving from either side shall do so at as small an angle to the general direction of traffic flow as practicable.
(c) A vessel shall, so far as practicable, avoid crossing traffic lanes but if obliged to do so shall cross on a heading as nearly as practicable at right angles to the general direction of traffic flow.
(d) (i) A vessel shall not use an inshore traffic zone when she can safely use the appropriate traffic lane within the adjacent traffic separation scheme. However, vessels of less than 20 metres in length, sailing vessels and vessels engaged in fishing may use the inshore traffic zone.
(ii) Notwithstanding subparagraph (d) (i), a vessel may use an inshore traffic zone when en route to or from a port, offshore installation or structure, pilot station or any other place situated within the inshore traffic zone, or to avoid immediate danger.
(e) A vessel other than a crossing vessel or a vessel joining or leaving a lane shall not normally enter a separation zone or cross a separation line except:
(i) In cases of emergency to avoid immediate danger; (ii) To engage in fishing within a separation zone.
(f) A vessel navigating in areas near the terminations of traffic separation schemes shall do so with particular caution.
(g) A vessel shall so far as practicable avoid anchoring in a traffic separation scheme or in areas near its terminations
(h) A vessel not using a traffic separation scheme shall avoid it by as wide a margin as is practicable.
(i) A vessel engaged in fishing shall not impede the passage of any vessel following a traffic lane.
(j) A vessel of less than 20 metres in length or a sailing vessel shall not impede the safe passage of a power-powered vessel following a traffic lane.
(k) A vessel restricted in her ability to manoeuvre when engaged in an operation for the maintenance of safety of navigation in a traffic separation scheme is exempted from complying with this Rule to the extent necessary to carry out the operation.
(l) A vessel restricted in her ability to manoeuvre when engaged in an operation for the laying, servicing or picking up of a submarine cable, within a traffic separation scheme, is exempted from complying with this Rule to the extent necessary to carry out the operation”.
- 71.
The measure affects the two Minches, North and Little, although innocent passage regulates the former (article 38.1) and transit passage regulates the latter (article 37).
- 72.
In the Puget Sound – continuation of the Strait of Juan de Fuca, but in internal waters of the USA – the IMO adopted three devices for the separation of traffic in the Rosario Strait, in the access to the Puget Sound and in the strait itself (COLREG.2/Circ.51 y Circ.55).
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Martín, A.G.L. (2010). International Straits and the Right of Innocent Passage with No Possibility of Suspension. In: International Straits. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-12906-3_5
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