Abstract
By the beginning of the nineteenth century it came to be universally accepted amongst the maritime states of Europe that the sea, constituting the great highway for commerce and communications between civilized nations and the remotest regions of the earth, should remain unrestricted during the continuance of peace for the complete enjoyment of every nation. Although a small part of the adjacent sea was deemed to be essential for the security of that coastal state and was accepted as under its dominion, even this part, it was felt, should be held subject to the right of innocent passage by foreign ships.1 The right of innocent passage was, therefore,
the result of an attempt to reconcile the freedom of ocean navigation with the theory of territorial waters. While recognising the necessity of granting to littoral States a zone of waters along the coast, the family of nations was unwilling to prejudice the newly gained freedom of the seas.2
Part of the lectures delivered at the Institute of International Public Law and Relations, Aristotle University, Thessaloniki, Greece, on 23–27 September 1996.
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References
See Paul Morgan Ogilvie, International Waterways (New York, 1920), p. 104.
See Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (New York, 1927), p. 120.
Ibid., p. 120.
See “Harvard Law School Draft on Territorial Waters”. AJIL. (Supp.), vol. 23 (1929), p. 245; see also C. Colombos, The International Law of the Sea (London, 6th ed., 1967), p. 261.
See Jessup, note 2, p. 120.
See Harvard Draft, note 4, p. 295.
See Report of the International Law Commission, Yearbook of the International Law Commission, 1956, vol. II, p. 274.
Ibid., p. 273.
See D.P.O’Connell, The International Law of the Sea, I.A. Shearer [ed]. (oxford, 1984), pp. 274–281.
See Jessup, note 2, p. 120.
O’Connell, note 9, p. 277.
Ibid., p. 252.
Ibid., p. 283.
ILC., note 7, p. 277, Emphasis added.
See Arthur H. Dean, “Geneva Conference on the Law of the Sea; What Was Accomplished, AJIL. vol. 52 (1958), pp. 610–12, see also O’Connell, note 9, pp. 288–9.
See UNCLOS Official Records (1st Committee), vol. 3, UN Doc. A/CONF. 13/ Cl/L 37/Con. 212 (1958), See also ibid., p. 131. para 25.
UNCLOS Official Records Plenary Meetings (1958), p. 67, para 28.
Ibid., p. 68, para 46. It failed to receive the two-thirds majority. The vote was 43 to 24.
O’Connell, note 9, p. 298.
This is not only the position taken by NATO Powers, Australia and New Zealand, but it is supported by several writers like Verzil, Kelsen, Jessup, Pharandand and Fitzmourice, ibid., p. 290, n. 204.
Besides the Soviet Union and its allies, this interpretation was supported by the Philippines, Indonesia and Malaysia. Several Scholars such as Brownlie, Groethem, Slomina, Colombos and Tunkin, also agree with this interpretation, See O’Connell, note 9, p. 291.
Quoted in ibid., p. 291.
Ibid.
See Max Sorensen, “Law of the Sea”, International Conciliation, vol. 520 (1958), p. 235.
See O’Connell, note 9, p. 290, n. 205; I. Brownlie, Principles of Public International Law (London, 3rd ed., 1979), p. 198. See also Myron Nordquist, Testimony in Hearings before the Subcommittee on Oceanography, Gulf of Mexico and the other Continental Shelf of the Committee on Merchant Marine and Fisheries, House of Representatives on “The Law of the Sea Treaty and Reauthorization of the Deep Seabed Hard Mineral Resources Act”, on April 26, 1994, US House of Representatives Serial No. 103–97 (Washington, D.C. 1994), p. 220. See also for numerous restrictions on innocent passage of various types of ships by several countries which the United States felt excessive and protested against in US Department of State, Limits in the Sea, No. 112; United States Responses to Excessive National Maritime Claims (March 9, 1992), pp. 51–61.
See U.K., Bulgaria, G.D.R., Poland, U.S.S.R., Malaysia, Morocco, Oman, Yemen and Fiji, UNCLOS-III Official Records, 3 v., pp. 183, 192, 196 and 203.
For example: Bangladesh, Somalia, Sri Lanka, Maldives, Sudan, Yugoslavia and Yemen, passed laws requiring prior authorization before transit of warships, see O’Connell, note 9, p. 293.
Article 30, UN Convention on the Law of the Sea (1982).
Nordquist, note 25, p. 220; see also Limits in the Sea, No. 112, note 25, pp. 55–56.
See also O’Connell, note 9, p. 292.
See Limits in the Sea, No. 112, note 25, p. 59; see also Hearings before the US Senate Committee on Foreign Relations on “Current Status of the Law of the Sea Convention”, 103rd Congress, 2nd Session, on August 11, 1994, pp. 28, 38, 49–51; see also Hearings, note 25, pp. 20.
Admiral William D, Centre Hearings before the Senate Committee on Foreign Relations, ibid., p. 25. D.O.D. Ocean Policy Review, 1993, ibid., pp. 87–88.
Quoted in Limits in the Sea, No. 112, note 25, p. 53.
Ibid.
The United States filed more than 140 such protests including more than 110 since FON Programme began. See, Limits in the Sea, No. 112, note 25, p. 1.
Ibid., p. 53.
Ibid., pp. 48–49; 84–85.
See Limits in the Sea No. 112, note 25, pp. 58–68, 73–76; see also Robert E. Osgood, Ann L. Hollick, Charles S. Pearson, James C. Orr, Toward a National Ocean Policy: 1976 and Beyond (Washington, 1975), p. 22; see also Elliot L. Richardson, “Law of the Sea: Navigation and Other Traditional National Security Considerations”, San Diego Law Review, vol. 19 (1982), pp. 554–5, see also Osgood et al, ibid., p. 45 for US bilateral agreements with Indonesia; R. Darman, “The Law of the Sea: Rethinking U.S. Interests”, Foreign Affairs, vol. 56 (1967), p. 376.
See D. Stamp (ed.,) A Glossary of Geographic Terms (1968), p. 436.
At its narrowest point the Dardanelles Strait is only 800 yards wide. On the other hand, the Hudson Straits are about 155 miles wide. See K.L. Koh, Straits and International Navigation: Contemporary Issues (1982), p. 11. Some scholars refer to the difficulty of separating “in principle” gulfs from straits. Thus Hall refers to the Strait of Juan de Fuca (ranging from 10 to 15 miles in width) which he says possesses some of the characteristics of a gulf, W.E. Hall, A Treatise on International Law (Oxford, 8th ed. 1924), p. 195, noted in Koh, ibid. See 1958 Geneva Convention on Territorial Sea and Contiguous Zone guaranteed in Article 16(4) passage through Strait of Tiran connecting the Gulf of Aqaba and the Red sea, See Koh, ibid.
Koh gives a list of 220 such straits from a list by W. Smith, Strategic Quality of International Straits (1973) (unpublished M.A. dissertation available at the University of Rhode Island), quoted in Koh, ibid., pp. 24–26. See also Robert W. Smith, “An Analysis of the Strategic Attributes of International Straits: A Geographical Perspective”, Maritime Studies Management, vol. 2 1974), pp. 88 ff.
Approximately one-sixth of the world’s oil goes through the strait of Malacca, and about 92 per cent of Japan’s oil comes from Persian Gulf via this strait. See Smith, ibid., p. 28.
See Smith note 41, pp. 97 ff; R.H. Kennedy, A Brief Geographical and Hydrographical Study of Straits Which Constitute Routes for International Traffic Preparatory Document No. 6, 1958 UN Conference on the Law of the Sea (hereafter UNCLOS), UN Doc. A/CONF, 13/6 (23 Oct. 1957).
See K.D. Shaw, “Juridical Status of the Malacca Straits in International Law”, vol. 14 (1976), pp. 35–6.
Quoted in R.R. Baxter, The Law of International Waterways (Cambridge, 1964), p. 8.
Ibid., p. 5.
Erik Bruel, International Straits vol. II (London, 1947), p. 41.
Chile declared the Strait of Magellan as part of its territorial sea for the purposes of defending its neutrality, see Baxter, note 45, p. 7.
At the Hague Conference in 1930, the German delegate pointed out that while there was a geographical notion of a strait, “no general definition of the term exists in international law”, quoted in Koh, note 40, p. 13.
Ibid.
O’Connell, note 9, pp. 301–305.
Ibid, pp. 303–306.
Corfu Channel Case (Great Britain v. Albania), ICJ, Rep. 1949, p. 28.
Ibid., p. 29 (emphasis added).
Ibid., p. 28.
Yearbook of the International Law Commission, vol. 2 (1956), p. 273.
UNCLOS Official Records, 3. v., UN Doc. A/CONF. 13/cl/L.39, p. 220.
Ibid., 95, para 66.
See O’Connel, note 9, p. 316.
See Baxter, note 45, pp. 166–167.
See R.R Anand, “Tyranny of the Freedom of the Seas Doctrine”, Interntional Studies, vol. 12, no. 3 (July-September 1973), pp. 79–93.
See R.R Anand, “Mid-Ocean Archipelagoes in International Law: Theory and Practice”, IJ1L, vol. 19 (1979), pp. 238–42.
See B. Harlow, “UNCLOS III and Conflict Management in Straits”, Ocean Dev. & Int Law J. vol. 15 (1985), p. 199.
Ibid., pp. 199–200.
Sub-Committee II of the Committee on the Peaceful Uses of the Sea-bed (hereafter Seabed Committee), UNGA Official Records, Session 26, suppl. no. 21A/ 8421, p. 241, UN Doc.A/A.C.138/S.C.II/L.48.
See Stevenson (U.S.), UN Doc. A/A.C. 138/S.C.II/SR8, pp. 45–47 (3 August 1971).
See Stevenson, UN Doc, A/A.C. 138/S.C.II/SR.37, p. 65 (28 July 1972).
Osgood, et al, note 38, p. 45.
Stevenson, note 67, p. 63.
Ibid., p. 25.
See Kolesnik (USSR), UN Doc.A/A.C.138/S.C.H/SR.69, pp. 2–4 (24 July 1973), see also Sapozhnikov (Ukranian SSR), UN Doc. A/A.C. 138/S.C.II/SR.71, p. 23 (8 August 1973).
UN Doc.A/A.C. 138/S.C.I1/L.7 (25 July 1972).
See Kolesnik, note 71.
See Mark W. Janis, Sea Power and the Law of the Sea (Lexington, 1976), P. 31.
R. Morales (Spain), UN Doc A/AC.138/SR.60, p. 88 (4 April 1973). See also Djalal (Indonesia), ibid., p. 191.
See Supra p. 19.
The Nixon administration was prepared for this trade-off. See L. Ratiner, quoted in R.P. Anand, “UNCLOS and the US”, IJIL vol. 24 (1984), p. 162.
Most of the objections to the wide archipelagic claims of countries like Indonesia and the Philippines were raised because of the threat to international navigation, see Anand, note 62, p. 250.
Such criticisms were made and doubts raised by II. Gary Knight and Michael Reisman in a memoranda submitted to Senator Barry Goldwater as Chairman of a Senate Committee on the Law of the Sea Negotiation in 1976, quoted extensively in W.T. Burke, “Submerged Passage Through Straits: Interpretations of the Proposed Law of the Sea Treaty”Washington L. Rev., vol. 52 (1977) p. 193. See also Michael Reisman “The Regime of Straits and National Security: An Appraisal of International Law Making”, AJIL, vol. 74 (1980), p. 48.
Knight, qoted in Burke, note 79, p. 207.
Reisman, quoted in Burke, Ibid.
See Ellion L. Richardson, “Law of the Sea and Other Traditional Security Considerations”, San Diego Law Review, vol. 19 (1982), pp. 564–565, see also John Norton Moore, “The Regime of Straits and the Third UNCLOS”, AJIL, vol. 74 (1980), p. 89.
Moore, note 82, p. 93.
Ibid., p. 121.
Ibid., p. 111. See also Richardson, note 82, pp. 566–8.
See Reisman, note 79, p. 68.
John R. Stevenson and Bernard Oxman, “The Third UNCLOS: The 1974 Caracas Session”, AJIL, vol. 69 (1975), p. 1 ff.
Reisman observes: “By its nature submerged passage is not the sort of practice that generates customary rights. The notoriety and opportunity for parties thereafter subordinated - requisite components of formation of prescriptive rights - can hardly be fulfilled when the strait state does not or cannot know of the passage or lacks the means of stopping it. And even if such practices were deemed to have generated customary rights in one strait, they could not ipso facto be applied to all straits, nor would they be probative of features of surface or aerial passage”. Reisman, n. 79, p. 57; see also Anthony D’Amato, The Concept of Custom in International Law (London, 1971), p. 104 for a detailed discussion of treaty-custom dichotomy.
See Larson, “Security Issues and the Law of the Sea: A General Framework”, Ocean Dev. & Int’IL.J. vol. 15 (1985), pp. 136–7, Appendix B.
Ibid., p. 136.
See Summary of Territorial Sea and Fishing Claims ’ U.S. Dept. of State (1984) in Larson, ibid.,. 140.
Larson, note 89, p. 140.
Soundings, vol. 18 (1983), p. 4; see also Schreiber (Peru), Seabed Committee (195th mtg.) UN Doc. S.E.A./M.B./25 (6 Dec. 1982); Castaneda (Mexico)., ibid.; Ballati (Trinidad & Tabago), ibid., p. 6; Nandan (Fiji), UN Doc. 3 (7 Dec. 1982).
Soundings, ibid., p. 3.
See a list of 26 such states including Bahrain, Belize, Brunei, Chile, Dominica,- Qatar, Saint Vincent and the Grenadina, Singapore, Solomon Islands, Tuaolu and UAE, Larson, note 89, p. 141.
See Un Doc. A/Conf. 62/85 (23 August 1979) (declaration by Foreign Minister of Columbia, Ecuador, Chile and Peru), quoted in Oxman, “The Third UNCLOS: The Eighth Session, 1979”, AJIL, vol. 74 (1980), p. 9.
See Oxman, ibid., p. 10.
Ibid., p. 11.
Ibid.
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Anand, R.P. (2004). Navigation through Territorial Sea and Straits—Revisited. In: Studies in International Law and History. Developments in International Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5600-6_7
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