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The Standardised Catalogue of International Straits Presented in Part III of the 1982 United Nations Convention on the Law of the Sea

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Abstract

Together with the ‘imprecision’ which we have seen arises from the concept of straits used for international navigation, and which adds confusion to a regime which is already quite confusing, the 1982 Convention was responsible for generating other examples of imprecision when it broke up this regime based on a surprising multiplicity of ‘types’ of international straits, each one with a different legal regulation. One “diversification” which is the fruit of one of the major commitments of the III Conference, which was graphically expressed with the axiom: “No strait, no fish”.

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Notes

  1. 1.

    Through an exchange of notes in 1976, Tanzania and Kenya agreed to the delimitation of their respective territorial seas, both as regards their lateral border and their border facing each other on the Island of Pemba. The text of the treaty, as well as an illustrative map clearly showing the border between Kenya and the island of Pemba (Tanzania), can be consulted at the Office of the Geographer, US Dept’ State, Limits in the Seas, No. 92.

  2. 2.

    Thus, among others, Treves (1985, p. 789–790) defends its inclusion in the case of article 38.1; while Caminos (1987, p. 139–140) holds the contrary opinion.

  3. 3.

    See Yturriaga Barberán (1991, p. 292).

  4. 4.

    Previous to independence, achieved after the referendum held on August 31, 1999, although total independence was not achieved until May 20, 2002, East Timor had been a province of Indonesia since 1975, as a result of its illegal military occupation. Thus, this strait was totally included in Indonesian waters and therefore was an ‘archipelagic’ strait.

  5. 5.

    It is clear that these straits which are territorial seas but are not navigable, or are not used for international navigation do not come under the application of Part III as they are not part of the general category of “straits used for international navigation”, that is to say, they are not ‘international straits’, their legal regime would be that of Part II. This aspect was fully analysed in the previous chapter when addressing the functional component of the concept of “straits used for international navigation”, therefore, we refer the reader to this explanation.

  6. 6.

    Lapidoth (1972, p. 23) rejected completely the application of the regime of straits which connect internal waters, arguing that not only the nature of the waters but the fact that they are not used for international navigation; while both these arguments seem to us to be futile today. Guiliano (1975, p. 16–17) had a similar opinion; or Solodovnikoff (1980, p. 331) also. This last author was undoubtedly inspired by the fierce Russian position which considered all its straits to be internal waters in order to exclude international navigation.

  7. 7.

    See Pharand and Legault (1984, p. 98).

  8. 8.

    We must point out that that, besides these cases of recognised historic waters, not straits, by the coastal States, but these are not recognised by third party States, therefore, it cannot be definitively stated that they are of such a nature. Among others, this is the case of the Estuary of the River Plate by Argentina and Uruguay, of the Bay of Ungwana by Kenya, of the Gulf of Sidra by Libya, and of the Gulf of Taranto by Italy, claims protested by the United States (cf. Limits in the Sea, No. 112, pages 10–12).

  9. 9.

    There is also the possibility that Long Island Sound involves historic waters although, rather than a strait, this sea route must be considered to be a bay. Thus, at least, North American Case Law has declared this in the cases of Mahler v. Transportation Co., of 1866, and U.S. v. Maine in 1983, as well as the report of the Special Relater of the Supreme Court in 1983 (see the reference in Jia 1998, p. 68–69).

  10. 10.

    Cf. The Law in http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionlist.htm.

  11. 11.

    Cf. http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionlist.htm.

  12. 12.

    Cf. http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionlist.htm.

  13. 13.

    See the reference and a detailed analysis of the claims of Canada and Russia, in Scovazzi (2001, p. 69–84).

  14. 14.

    Cf. “United States Responses to Excessive National Maritime Claims”, Limits in the Sea, No. 112.

  15. 15.

    See Law of the Sea Bulletin, No. 54, 2004, p. 117.

  16. 16.

    Ukraine filed its ratification instrument on July 26, 1999, and the Russian Federation on March 12, 1997.

  17. 17.

    Cf. George (2002, p. 193).

  18. 18.

    Cf. Pharand and Legault (1984, p. 91).

  19. 19.

    Article 8.2 of the UNCLOS provides that, “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, a right of innocent passage as provided in this Convention shall exist in those waters”.

  20. 20.

    Vid. Jia (1998, p. 8–9).

  21. 21.

    See O’Connell (1982, p. 317).

  22. 22.

    Cf. Nandan and Anderson (1989, p. 174).

  23. 23.

    We will not go into the question of the validity of the establishment of these straight baselines which have included a number of international straits in internal waters although some of these have been protested by other States as they understood that they were not adapted to the delimitation criteria marked out in the UNCLOS. For example, this is the case of the delimitation made by Canada on its west, east and north coasts, protested among others by the United States in 1969, 1967 and 1986 (cf. Limits in the Sea, No. 112, p. 21). For a detailed analysis of the legal criteria which the States must adapt to for a delimitation of the straight baselines, see Office for Ocean Affairs and the Law of the Sea 1989.

  24. 24.

    Cf. http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionlist.htm.

  25. 25.

    Cf. Ibidem.

  26. 26.

    Cf. Ibidem.

  27. 27.

    Cf. Ibidem.

  28. 28.

    Cf. Ibidem.

  29. 29.

    Cf. Ibidem.

  30. 30.

    Cf. Ibidem.

  31. 31.

    Cf. Ibidem.

  32. 32.

    Cf. Limits in the Seas, No. 127.

  33. 33.

    Cf. http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionlist.htm.

  34. 34.

    Cf. Ibidem.

  35. 35.

    Cf. Ibidem.

  36. 36.

    Cf. Ibidem.

  37. 37.

    Cf. Jia (1998, p. 16).

  38. 38.

    The inclusion of the Beagle Channel in Chilean internal waters derives from the arbitral decision of February 18, 1977, dictated by the Queen of England in the Beagle Channel Case, whereby the sovereignty of Picton, Lennox and Nueva Islands was attributed to Chile (the text of the decision can be found in ILM, vol. XVII, 1978, pages 632 et seq.). However, the decision was not accepted by Argentina until the conclusion of the Peace Treaty of November 29, 1984, signed thanks to the mediation of Pope John Paul II.

    Article 13 and Annex No. 2 of the 1984 Treaty regulate navigation in the Beagle Channel specifically for Argentinean vessels, and generally for foreign vessels. In general terms, the regime stipulated is identical to the right of innocent passage with the possibility of suspension and subjection to the pertinent Chilean regulation (the text can be seen in http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionlist.htm).

  39. 39.

    Cf. Nandan and Rosenne (1993, p. 307).

  40. 40.

    Cf. Schachte and Bernhardt (1993, p. 544).

  41. 41.

    This minority opinion is defended by O’Connell (1984, p. 321) and Colombos (1967, p. 220).

  42. 42.

    Similarly we can cite Caminos (1987, p. 131–132), Truver (1980, p. 179), Brüel (1947, p. 156), Baxter (1964, p. 335–336), among many others.

  43. 43.

    The scientific literature which makes a detailed analysis of the legal regime of each of these long-standing conventions is very abundant; outstanding among these, and as an example, we draw attention to the work of Hill (1933, p. 477–556), Lapidoth (1972, p. 59–113), and Jia (1998, p. 109–125).

  44. 44.

    See the text of the Convention in AJIL, 1937, sup. 1.

  45. 45.

    Cf. ILM, 1984, p. 11 et seq. Both on signing and on ratifying the Convention, Argentina and Chile stated the application of the 1881 Treaty to the Strait of Magellan.

  46. 46.

    Cf. AJIL, 1923, Supp. 1. In addition to this treaty there is the Moscow Agreement between Finland and the USSR signed on October 11, 1940. On signing the UNCLOS, both Sweden and Finland stated that the straits between the Finnish Islands and Sweden are included in article 35 c). However, this is the only case of the four which was the subject of a protest made by the United States, which is not a party to the 1921 Treaty and does not recognise that the Åaland Strait come under the scope of article 35 c) (cf. Limits in the Sea, No. 112, p. 64).

  47. 47.

    Cf. Martens, Nouveau Recueil Général des Traités, vol. XVI, pages 345 et seq. On signing and ratifying, Denmark also declared the inclusion of these three straits within the framework of article 35 c), Sweden also declared the same as regards the Sound.

  48. 48.

    A detailed study of these application criteria, as well as their specific application as concerns the UNCLOS, can be seen in López Martín (2002; 2006, p. 241–278).

  49. 49.

    See the complete text of the Treaty in ILM, vol. 18, pages 362–393. For a detailed analysis of this, see Fink (1995, p. 121–144).

  50. 50.

    The different positions in this regard can be consulted in Treves (1985, p. 792).

  51. 51.

    Logically, the margin of difference stated concerning the fact that it has been in force for some time which is required if it is to be long-standing.

  52. 52.

    As occurs with the Treaty of April 18, 1990, between Venezuela and Trinidad and Tobago, on the delimitation of marine and submarine areas, whose article VI establishes innocent passage for the Serpent’s Mouth Strait and the Dragon’s Mouth Strait, where passage in transit must be applied in accordance with article 37 of the UNCLOS. This Treaty is incompatible with the Convention, which gives rise to a problem for Trinidad and Tobago which is a party to the UNCLOS, while Venezuela is not. The text of the 1990 Treaty can be seen in Law of the Sea Bulletin, No. 19, 1991, pages 23–27.

  53. 53.

    Cf. Treves (1985, p. 793).

  54. 54.

    See Treves (1985, p. 790). As stated by this same author, this inclusion was due to a request from ex-Yugoslavia which was trying to safeguard its interests in the Strait of Otranto, between Italy and Albania, due to the pretensions of Albania to establish the extension of its territorial sea beyond 12 miles.

  55. 55.

    This opinion is held, among others, by Lapidoth (1972, p. 17).

  56. 56.

    See Pharand (1977, p. 76).

  57. 57.

    Cf. Schachte and Bernhardt (1993, p. 537).

  58. 58.

    Cf. Caminos (1987, p. 137).

  59. 59.

    See Brüel (1947, p. 41).

  60. 60.

    It is important to point out that these three Russian Arctic Straits are part of the Northeast Passage (Vilkits, Dimitry Laptev and Proliv Long), and have been included among its internal waters by Russia, as it claims these are historic waters, a claim which has no legal grounds. If this Russian vindication fails to prosper, taking into account their width which exceeds double the width of the territorial sea, it is evident that they are excluded from the exclusive sovereignty of Russia, which justifies their inclusion in article 36 of the UNCLOS.

  61. 61.

    The other two channels which form part of the Luzon Strait (Balitang and Babuyan) are located in archipelagic waters of the Philippines; therefore, they are included in the category of ‘archipelagic straits’.

  62. 62.

    To date, the United States has not made any claims concerning archipelagic delimitation as regards the archipelagos it has sovereignty over, specifically Hawaii and the Aleutians, which means that it maintains the individual delimitation of each of the islands which make up both archipelagos. Neither has the Federal Government recognised any claim concerning archipelagic jurisdiction from any of its States, more specifically, the jurisdiction contained in article XI, section 6 of the constitution of the State of Hawaii, of November 7, 1978, which provides that, “The State shall have the power to manage and control the marine seabed and other resources located within the boundaries of the State, including the archipelagic waters of the State”. Likewise, in the Memorandum of October 24, 1997 of the NOAA, it is expressly stated that “state waters do not include ‘channel waters’ or ‘archipelagic waters” (cf. MacDonald and Mitsuyasu 2000, p. 73 and 81). For the purposes which interest us here, this means that the straits which we cite as included in article 36 as they exceed the 24 miles of territorial sea (Kauai, Alenuihaha, Amchitka, and Amukta), continue to form part of this category.

  63. 63.

    As regards the eight straits we refer to from Lancaster Sound to and including the Hudson Strait (Viscount Melville Sound, Victoria Strait, Prince Regent Inlet, Foxe Channel, McClure Strait and James Ross Strait), we must add two remarks. The first is to bear in mind the doubts and discrepancies concerning compliance with the functional component we put forward in the previous chapter, and, consequently, the fact that they are straits of an international character.

    The second is to take into account that all the straits situated in the Canadian Arctic Archipelago are vindicated by Canada as straits located in its internal waters, and it alleges that they are historic waters. However, as we have pointed out, this claim has no legal grounds nor does it appear to be in accordance with International Law. According to a sector of doctrine, there is the possibility of carrying out delimitation with an archipelagic perimeter in the Canadian archipelago, alleging the “ecological unity”; the ecological characteristics of the arctic marine environment could justify the unification of the waters and lands of this archipelago. In the event that none of these possibilities is backed by the other States, and it seems doubtful that they would receive the backing of the United States, and, taking into account the distance between the islands, the relevant delimitation would be the individual delimitation of each of these, which supposes that the straits mentioned will continue to have a width greater than 24 miles, that is to say, article 36 of the UNCLOS.

  64. 64.

    Both in the cases of the Cabot Strait and the Honguedo Strait, there is a particular legal problem. Both straits, which are the continuation of each other, far exceed 24 miles, therefore in principle they are included in article 36. However, Canada has drawn straight baselines (Order of May 9, 1972) in such a way that both are included in its internal waters. Nevertheless, there are discrepancies concerning whether these baselines are in accordance with the method in article 7, therefore, thee have been protests from several states including the United States. This circumstance casts doubts on this delimitation, therefore, if it is not in accordance with International Law, these straits will continue within the scope of article 36. However, if the delimitation is valid, these two straits would become part of the category included in article 45.1 b), and the regime would be that of the right of non-suspendible passage. Obviously, the difference in legal regime is important.

  65. 65.

    We must point out that the concept of ‘archipelagic strait’ is restricted only to the straits located in the archipelagic waters of an archipelagic State as regulated by Part IV. By applying strict international legality, we cannot extend the concept of archipelagic strait to the straits located within an archipelagic perimeter drawn in ‘State archipelagos’, as is the case of Hawaii, since it is commonly acknowledged that Part IV cannot be applied to these archipelagos, which must individually delimit each island. This exclusion of State archipelagos from the drawing of the archipelagic perimeter has received abundant, justified criticism, which we will not go into as it exceeds the limits of this work.

  66. 66.

    Cf. Maduro (1980, p. 88).

  67. 67.

    The archipelagic States which have claimed the condition of archipelago and there are international straits in their archipelagic waters are the following: The Bahamas (Law No. 37 of 1993), Fiji (Order No. 119 of 1981), the Philippines (Law No. 5446 of 1968), Indonesia (Law No. 6 of 1996 modifying the Law of 1960, and Regulation No. 61 of 1998 on coordinates), The Solomon Islands (Law No. 32 of 1978 and Legal Notice No. 41 of 1979 on archipelagic baselines), Papua New Guinea (Declaration of July 25, 2002), and Trinidad and Tobago (Law No. 24 of 1986 and Order No. 206 of 1988 on archipelagic baselines). The references can be seen at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionlist.htm.

  68. 68.

    The description of these sea lanes, as well as the corresponding map, found in the Law of the Sea Bulletin, No. 52, 2003, pages 21–41.

  69. 69.

    The Philippines has claimed the classification of internal waters for the waters included within its archipelagic perimeter, and this is included in its Law of September 18, 1968. However, its ratification of the UNCLOS of July 23, 1997 obliged it to relinquish this claim and it must modify its internal legislation, which it has not yet done.

  70. 70.

    It should be remembered that, of all these straits we have mentioned, only the straits of Karimata, Sunda, Makassar, Lombok, Leti and Ombai are archipelagic sea lanes.

  71. 71.

    In the course of the III Conference, Italy began to worry about the pressure of the Great Maritime Powers concerning the imposition of freedom of transit in all the international straits as this entailed important strategic implications if ‘enemy’ or ‘unfriendly’ powers chose to use the navigation route through the Strait of Messina. Taking into account that there is a perfectly feasible alternative high sea route to the southeast of Sicily, Italy argued that vessels could choose this other free navigation route, and for navigation purposes, the waters of these types of straits must continue to have the same status as that of the territorial sea, that is to say, they should continue to be governed by the right of innocent passage. This was how it was included in its proposal for articles (cf. UN Doc. A/AC.138/SC.II/L.30 (1973).

  72. 72.

    Vid. Koh (1982, p. 150).

  73. 73.

    Cf. Treves (1985, p. 790).

  74. 74.

    The text of the respective declarations and objections can be seen in http://untreaty.un.org. We should point out that Turkey has not signed nor is it a party to the UNCLOS.

  75. 75.

    Cf. Nandan and Rosenne (1993, p. 329).

  76. 76.

    We should point out that, in the north of Canada, between its coast and the Islands of the Arctic archipelago, there are several straits which comply with the conditions of article 38.1. However, these straits are not used for international navigation, therefore in principle they would not come under Part III. These are the following straits: Franklin Strait: 20 miles wide, between Prince of Wales Island and the Boothia Peninsula; Dease Strait: 12 miles wide, between Victoria Island and the Kent Peninsula; Rae Strait: 13 miles wide, between King Williams Island and the Gibson Peninsula; Dolphyn and Union Strait: 15 miles wide, between Victoria Island and the north of the Canadian mainland; Simpson Strait: 2 miles wide, between King Williams Island and the Adelaide Peninsula; Bellot Strait: One and a half miles wide, between Somerset Island and the Boothia Peninsula; Fury and Hecla Strait: half a mile wide at its narrowest part, between Baffin Island and the Melville Peninsula. In fact, as we said in the previous chapter, the advisable route through the Northwest Passage and the one occasionally used is the so-called Route 1, which constitutes the alternative free navigation route which exists at the other side of the aforementioned straits.

  77. 77.

    This strait links the Cradock Channel and the Jellicoe Channel, which joins the internal waters of New Zealand and the Pacific Ocean in the Hauraki Gulf.

  78. 78.

    The Georgia Strait finally links with the Strait of Juan de Fuca, on the border with the U.S.A. We must point out that the Queen Charlotte and Georgia Straits join with other minor straits which run between the coast of Canada and Vancouver Island; specifically Johnston Strait (from Thurston Bay to Mamalilaculla) and Broughton Strait (in the Broughton Archipelago).

  79. 79.

    See A/CONF.62/C.2/L.3. As regards this particular aspect, it is interesting to point out the different position of the United Kingdom and the U.S.A., two States which belong to the NATO; however, they have different strategic interests, as is clear from this point.

  80. 80.

    See Schachte and Bernhardt (1993, p. 54).

  81. 81.

    As we stated in Sect. 4.1.3 in this chapter, in the Strait of Tiran there is a dual regime concerning passage. The freedom of transit established in the Egyptian-Israeli Treaty of 1979 is applied in the territorial sea of Egypt, while, in the territorial sea of Saudi Arabia (which is not a party to this treaty), article 45.1 b) of the UNCLOS must be applied, that is to say, the right of non-suspendible innocent passage.

  82. 82.

    Väinameri means “sea of straits” in Estonian.

  83. 83.

    The other is the Irben Strait, between the south of the Estonian Island of Saaremaa and the northern mainland of Latvia.

  84. 84.

    This would be the case of the U.S.A., which considers that Head Harbour Passage which leads to Passamaquoddy Bay (U.S.A.) crossing the territorial sea of Canada is included in article 45 (cf. Limits in the Seas, No. 112, p. 66).

  85. 85.

    See Second Committee, 11th meeting (1974), p. 24, II Off. Rec. 125 (the bold lettering is ours).

  86. 86.

    As we mentioned at the beginning of the second heading of this chapter, the Wetar Strait is in a special category of strait which does not respond to any of those stipulated in the Convention. We place it in the right of innocent passage by establishing an analogy between archipelagic waters and territorial for the purposes of passage.

  87. 87.

    Obviously although this category of straits is denominated as “principal straits”, not all of them are equally important. While some of these are the most important straits for international navigation, such as Dover, Gibraltar, Bab-el-Mandeb, Malacca, Singapore and Hormuz; however, some of the straits excepted from this regime, such as Tiran, Foveaux and Messina, are equally important.

  88. 88.

    Attention should be drawn to the fact that we include the Little Minch in article 37 because it is located not between an island of a State and its mainland territory, but between two groups of islands, therefore, it does not correspond to the case in article 38.1, and it also joins two zones of the high seas or exclusive economic zones (the Atlantic ocean and the North Sea), even though its waters are internal on applying article 35 a). This means that passage in transit governs. Nevertheless, this is not the opinion of the United kingdom which, in its law of 1987 on territorial sea, only recognises passage in transit for the Dover Strait and The Hole, but maintains the right of innocent passage for the rest of its straits, which includes the Little Minch and the North Channel, and does not justify why it maintains the previous regime and does not apply Part III of the UNCLOS, which curiously it is a co-author of. The text of the British Law of 1987 can be read in the Law of the Sea Bulletin, No. 10, 1987, pages 11 et seq.

  89. 89.

    The name Gibraltar derives from Jabel Tarik, the Moor who invaded the area in 711 ad.

  90. 90.

    We should remember that Ukraine and Russia made a joint declaration, on December 24, 2003, that the waters of this Strait are historic, which would exclude it from the scope of article 37 by application of article 35 a). If this claim were accepted by the other States, then, the passage through the Kerch Strait would be subject to the consent of the coastal States, as is set out in this Declaration.

  91. 91.

    As we mentioned above, India and Sri Lanka have declared that Palk Bay and Palk Strait include historic waters. A declaration which has been protested, therefore, we cannot consider this to be effective.

  92. 92.

    We must not forget the objection mentioned above concerning compliance or not of the functional component, taking into account its merely temporary use for international navigation.

  93. 93.

    It is important to draw attention to the fact that article VI of the Treaty of April 18, 1990, signed by Venezuela and Trinidad and Tobago, on the delimitation of sea and submarine areas, expressly provides that “innocent passage is applied in the straits in the Gulf of Paria” (See Law of the Sea Bulletin, No. 19, 1991, p. 25). A provision which affects the Serpent’s Mouth and the Dragon’s Mouth, and fails to comply with article 37 of the UNCLOS according to which passage in transit is in force in these straits. If article 311.2 of the UNCLOS is applied, this treaty would not apply. However, although Trinidad and Tobago has ratified the 1982 Convention (April 25, 1986), Venezuela is not a party to this Convention and, according to the principle of pacta tertiis nec nocent nec prosunt, it is not obliged by its provisions (except for the provisions which are of a consuetudinary nature).

    This involves an important controversy, taking into account that the 1990 Treaty is valid and legitimate for Venezuela as it is in accord with the consuetudinary norm on innocent passage codified in article 16.4 of the 1958 Geneva Convention; however, this is not so for Trinidad and Tobago which is a party to the UNCLOS and is obliged by its provisions. Evidently, Trinidad and Tobago has a problem concerning the application of successive treaties regarding the same matter which are incompatible with each other; the application of one entails the non-compliance of the other, which gives rise to its international responsibility as set out in article 30.5 of the 1969 Vienna Convention on the Law of Treaties.

  94. 94.

    Cf. The Times Atlas and Encyclopedia of the Sea (1983), p. 154–157.

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Martín, A.G.L. (2010). The Standardised Catalogue of International Straits Presented in Part III of the 1982 United Nations Convention on the Law of the Sea. In: International Straits. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-12906-3_4

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