STRAIT USED FOR INTERNATIONAL NAVIGATION UNDER THE UNCLOS 1982 REGIME (A comment on the article Gaining command

and Control of the Northwest Passage : Strait talk on sovereignty by Christopher Mark Macneill) Written by : Ahmad Rawi The writer can be contacted at

scholars.assist@gmail.com
Abstract : UNCLOS 1982 is an attempt by the international community to codified the common principles governing the use of the sea by nations. Central to UNCLOS 1982 is its theme to formulate a set of guidelines acceptable by nations governing their claims of extension of sovereignty on land to that vast body of water adjacent to them. In this regard, UNCLOS 1982 and its predecessors can be regarded as a success in providing nations with a common platform to begin with and a common body of reference to guide them in disputes over sovereignty on sea. This paper will look into the treatment of straits used for international navigation under the UNCLOS 1982 and the attendant duties and rights accorded to the littoral states having jurisdiction over such straits. Keywords : UNCLOS 1982, international straits used for navigation Introduction Passage through international straits has always been one of the many controversial issue in maritime navigation1. The issue is complicated further by lack of definition in UNCLOS 1982 of what a strait, and in particular a strait used for international navigation, is2. The crux of the controversy stemmed from the straits coastal states desire to maintain their sovereignty over such straits and the economic and strategic interests of states whose ships use such straits for
1

Martin, A.G.L., International Straits: Concept, Classification and Rules of Passage, 2010 Springer Verlag Berlin Heldelberg p. xix

Ibid,p. xvii

international navigation to have their ships movement proceeds unhindered. This paper will attempt to provide a summary analysis of UNCLOS 1982 straits regime i.e. straits use for international navigation. The Legal Framework of Straits Used for International Navigation under UNCLOS 1982 UNCLOS 1982 has been criticized for its lack of clear definition of what straits used for international navigation is. The Convention does not specify which straits come within the scope of Part III of UNCLOS 1982. In fact, the Convention does not define what straits used for international navigation and which are not3. According to an author, the term strait in UNCLOS 1982 bears its ordinary linguistic meaning i.e. a narrow natural passage or arm of water connecting two larger bodies of water4, and the rights of coastal and flag states in relation to a strait are determined, not by the linguistic definition of a strait as such, but by the legal status of the water constituting the strait and its use by international shipping5. Going by this approach, the term straits used for international navigation in Art. 34 UNCLOS 1982 shall assume its ordinary linguistic meaning, with factual use of the strait as passage for international ships being the most important criterion to qualify it as such under Art. 34. Under the customary law of the sea, ships, whether merchants or warships, had a right of innocent passage through international straits which could not be suspended by the coastal states 6. In the Corfu Channel Case, the United Kingdom asserted its right to passage through international straits by sending a naval fleet to the Corfu Channel, without complying with Albanias regulations requiring prior authorization. Albania claimed that its sovereignty had been violated by the passage. Albania argued that the United Kingdoms warships had no right of passage in the Corfu Channel since the strait legal status is not that of a strait used for international navigation. Albania contended that Corfu Channel was only an alternative route between the Adriatic and the Aegean
3

Martin, A.G.L., International Straits : Concept, Classification and Rules of Passage, 2010 Springer Verlag Berlin Heidelberg p. 41
4

Churchill, R.R. & Lowe, A.V.,The Law of The Sea,1983 Manchester University press UK P. 81 Ibid Supra, note 3, p. 82

Sea and was used almost exclusively by local traffic. The International Court of Justice (ICJ) rejected this argument and held that the decisive criterion to determine whether a strait is an international strait used for navigation consists of two factors i.e. firstly, its geographical situation which connect two parts of the high seas and secondly, the fact of its being used for international navigation7. UNCLOS 1982 creates a new regime of passage through international straits with the creation of right of transit passage contained in the Second Section of Part III (articles 3744). This right is more liberal than right of innocent passage accorded to ships in coastal states territorial water and leaned more toward the concept of freedom of high sea8. Two of the main difference between the regime of innocent passage and the regime of transit passage through international straits are transit passage allows overflight of aircraft, which is not allowed by the regime of innocent passage and no obligation for submarines to sail on the surface and fly their flag. According to Art. 37 of UNCLOS 1982, this new regime is applied 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. Article 38 of UNCLOS 1982 defines the meaning of the right of passage in transit as the exercise in of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone and include the continuous and expeditious transit through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State. As provided by Art. 38, the beneficiaries of the rights of transit passage extends to all ships and aircrafts without discriminations in term of nationalities or ownership or types. According to an author, there is a universally accepted doctrine that transit passage is accorded to all ships and

Supra, note 4, p. 82 Supra, note 3, p. 151

aircraft in its absolute form without any need for prior notification or prior authorization from the littoral states and without any delimiting factors e.g. harmful cargoes, nuclear powered etc9. Art. 38.2 provides that this absolute right however, must be exercised not in derogation of the objective of the ship passage i.e. to traverse the strait continuously and expeditiously from one part of high sea/exclusive economic zone to another part of high sea or exclusive economic zone(also known as lateral passage). The second paragraph of Art. 38.2 further extend this right to vertical passage of a ship in a strait for the purpose stated in that paragraph. The said paragraph, known as Singapore Clause states that right of transit passage (and not that of innocent passage) is also accorded to ships traversing the strait for the purpose of entering, leaving or returning from a state bordering the strait (though technically by that act they have not navigate the strait continuously and expeditiously from one part of the high sea to the other)10. States Practice Article 44 of UNCLOS 1982 provides that states bordering straits shall not hamper transit passage and that there shall be no suspension of transit passage. In practice, states party to the Convention and non-party states alike, however, have always apply arbitrary restrictions on right of transit passage. In September 1988, Indonesia announced temporary closure of Sunda and Lombok Strait for Indonesian Navy live firing exercise and effectively suspense transit passage, an act which seemed to violate its obligation not to defeat the object and purpose of a treaty prior to its entry into force (Indonesia had already been the 26th ratifying State to UNCLOS 1982 at that time)11.

Supra, note 3, p. 152 Supra, note 3, p. 155

10

11

Kim, Y.K.,Transit Passage Regime Controversy Revisited: An Appraisal and Analysis on the Legal Ambiguities and Recent Trends, Korea Journal of International Law volume 37(1992) No.1. p. 91.

Oman and Yemen bordering the strait of Hormuz and Babel Mandeb respectively, emphasized that the application of the transit passage provisions does not preclude a coastal state from taking such appropriate measures as are necessary to protect its peace and security. Spain (bordering the strait of Gibraltar) interpreted that the regime established in Part III of the Convention is compatible with the right of the coastal state to issue and apply its own air regulations in the air space of the straits used for international navigation so long as this does not impede the transit passage of aircraft. Iran, bordering the strait of Hormuz clarified that it would only give right of transit passage to states which are parties to UNCLOS 1982 whereas Egypt and Israel assert their rights to impose security measures on passage through Strait of Tiran and Gulf of Aqaba12. The strait used for international navigation is in principle a legal status created by the Convention (UNCLOS 1982) and right of transit passage accorded to ships traversing such strait can be evaded by showing circumstances which bring into operation Art. 36 of UNCLOS 1982. Art. 36 of UNCLOS 1982 provides that right of transit passage does not apply to ships using international strait where there exist through the strait a route of similar convenience. For this reason, the states bordering the entrances to the Baltic Sea (at present Denmark, Germany and Sweden), have refrained from extending their territorial seas in some of their coastal areas to 12 nautical miles, leaving an exclusive economic zone (EEZ) corridor (the route of similar convenience referred to in Art. 36). This was done to prevent the creation of new straits in the sense of Part III of the UNCLOS 198213. The Northwest Passage : New Strait Used for International Navigation?
12

Ibid

13

Elferink, A.G.O., The Regime of Passage of Ships through the Danish Straits, p.3.paper presented at the International Conference The Passage of Ships through Straits, Defense Analyses Institute, Athens, October 23, 1999, available online at http://www.law.uu.nl/english/isep/framenilos.asp

Global warming crisis, which belongs to the concern of the likes of scientists and environmentalists, now has a spillover effect on international law jurists and has the potential of limiting one nation of sovereignty over part of the frozen sea claimed as theirs. Northwest Passage is situated on that body of frozen sea which lies north of Canada in the Arctic Archipelago. Historically, Canada has always asserts their sovereignty over the territory known as Arctic Archipelago adjacent to the northern mainland Canadian coastline, citing cession of the land to Canada by the Indigenous people and the British Crown sovereign. Geographically, the Northwest Passage remains frozen for much of the year and thus inaccessible by ordinary ships though it provides the shortest route between Asia and Europe. With the rapid and expansive melting of Polar ice, the day is not long before Northwest Passage will be available year round as shipping lane. The Arctic region adjacent to Canadian coast is not disputed as Canadian water. The real issue is over the question of navigation or the legal status of those waters. Canada considers them to be internal water and thus Canada has the unfettered capacity to regulate them as they would have for any land territory14. This view is not shared by the United States , which take the stance that the Northwest Passage is an international strait, as defined by UNCLOS Article 37 and thus the bordering states have no rights of control to prevent the innocent passage of ships through this strait15. Canada maintained that the Northwest Passage is an internal waterway and based their claim on two cases : The Norwegian Fisheries Case (1951) and The Corfu Channel (1949). In the Norwegian Fisheries case, the issue was whether a fjord in Norways northern regions was part of
14

Bernier, M., Arctic Sovereignty : House of Commons Report of the Standing Committee on National Defence, (2010) Public Works and Government Services Canada, Ontario P.7
15

Kennair, J., An inconsistent truth : Canadian foreign policy and the Northwest Passage, Vermont Law Review, Vol. 34:015 p. 20

its internal waters or part of international waters. The ruling on the case, however, made the point that if a straight line was drawn from two separate headlands, it would in fact be an internal waterway. Furthermore, if waters were part of a states historic waters, then they were also internal waters. The test for historic waters was established as follows: 1. that there was an exclusive exercise of a states authority over the waters; 2. that the state had a long usage of those waters; and 3. that there was acquiescence to this by other states. Canada in 1963 used this reasoning, and based upon the straight baselines claimed the Arctic Archipelago in the North Pole, to assert that the Northwest Passage was an internal waterway. This archipelago, accepted to be under sovereign control of Canada, constituted the headlands needed to draw the separating the Northwest Passage from the high seas (The Arctic Ocean). Furthermore, because there had been few ships capable of navigating the waters due to its ice cover most of the year, Canadian icebreakers were the most frequent vessels to traverse the Northwest Passage. The only test that could not be proclaimed was that of acquiescence by other states, as it concerned the waterway itself, and the US does not acquiesce to Canada claim. Nevertheless, in 1975, Canadas Secretary of State reasserted Canadas claim that the Northwest Passage was not an international strait, but an internal waterway16. The definition of an international strait would be codified in the 1958 UNCLOS treaty, but the test for it was established in the Corfu Channel case (1949) referred above. According to the Corfu Channel there are two test criteria to determine an international straitthey are the geography associated to the waterway and its functionality as an international waterway (used by many vessels). Canada asserted that till date, few ships have actually, or officially, made the journey through the Northwest Passage because of the adverse conditions in the Canadian Arctic17. For the time being, the issue is still not resolved. Conclusion

16

Ibid Supra,note 15, p.26

17

Despite codification of principles of law of the sea into UNCLOS 182, it is clear that the Convention does not answer all the issues relating to the legal status of strait used for international navigation. States practices also varies and run counter to the Convention. In relation to legal status of strait used as international navigation, lack of precise criteria on what constitute such strait has led many states to offer their own presumptive interpretation, almost invariably unilaterally.

REFERENCES 1. 2. 3. Martin, A.G.L., International Straits: Concept, Classification and Rules of Passage, 2010 Springer Verlag Berlin Heldelberg Churchill, R.R. & Lowe, A.V.,The Law of The Sea,1983 Manchester University press UK Kim, Y.K.,Transit Passage Regime Controversy Revisited: An Appraisal and Analysis on the Legal Ambiguities and Recent Trends, Korea Journal of International Law volume 37(1992) No.1. Elferink, A.G.O., The Regime of Passage of Ships through the Danish Straits, p.3.paper presented at the International Conference The Passage of Ships through Straits, Defense Analyses Institute, Athens, October 23, 1999, available online at http://www.law.uu.nl/english/isep/framenilos.asp Bernier, M., Arctic Sovereignty : House of Commons Report of the Standing Committee on National Defence, (2010) Public Works and Government Services Canada, Ontario Kennair, J., An inconsistent truth : Canadian foreign policy and the Northwest Passage, Vermont Law Review, Vol. 34:015

4.

5. 6.