A Review of the Passage Regimes in Straits Used for International Navigation under the 1982 LOSC:

Implications for Navies

Mary GeorgeThe Institute of Ocean and Earth Sciences and the Faculty of Law

University of Malaya

The Fourth Indian Ocean Naval Symposium 2014Protecting the Ability to Trade in the Indian Ocean Maritime EconomyPanel on Challenges: Navigation Issues in International StraitsCrown Metropol Perth, Western Australia25-27 March 2014

Abstract

This paper reviews the challenges faced in the regime of straits used for international navigation before and after the adoption of the 1982 Law of the Sea Convention with several implications for the traditional roles of the navy. In particular, it argues that navies should play a more active role in non-traditional civilian uses of the oceans such as conducting baseline studies for environmental protection and resource conservation.

Table of Contents

1. Introduction2. Review of straits and passage regimes before the

adoption of the 1982 LOSC3. Six straits and three passage regimes under 1982

LOSC4. Way Forward and Conclusions

Introduction

• Decisions of the Permanent Court of International Justice (PCIJ)

• Decisions of the International Court of Justice (ICJ) • The four 1958 Geneva Conventions on the Territorial Sea and

the Contiguous Zone, the Continental Shelf, Fishing and conservation of Resources and the High Seas

• Current challenges to transit passage and strait States obligations towards the marine environment in straits used for international navigation in Part III, 1982 LOSC

• Way forward - naval assistance in non-traditional roles such as the protection and conservation of the marine environment

PCIJ and ICJ case law before 1982 LOSC

• The SS Wimbledon Case (1921)• The SS Lotus Case (1926)• The I’m Alone Case (1929)• The Corfu Channel Case (1949)

The SS Wimbledon Case (1921) [PCIJ]

• Article 380 of the Treaty of Versailles, Kiel Canal:– Ceased to be internal and national navigable waterway but

international waterway for the benefit of all nations; and– Must be open to all nations without making any distinction

between war vessels and vessels of commerce, as long as these vessels belonged to nations at peace with Germany.

• Examined provisions relevant to the Convention on the Suez and Panama Canals as regard the right of free passage and found that: – When an artificial waterway connecting two open seas has been

permanently dedicated to the use of the whole world, such waterway is assimilated to natural straits; and

– Even the passage of belligerent men-of-war does not compromise the neutrality of the sovereign State under whose jurisdiction the waters in question lie.

The SS Lotus Case (1926) [PCIJ]

• Found that Turkish jurisdiction was justifiable not because of the nationality of the victims but the effects of the offence were produced on a Turkish ship.

• Consequently in a place “assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged.”

• Once admitted that the effects of the offence were produced on the Turkish vessel, it became impossible to hold that there was a rule of international law that prohibited Turkey from prosecuting the French officer simply because the author of the offence was on board the French ship.

The I’m Alone Case (1929) [PCIJ]

• Issues:– (i) Whether the Government of the United States under

the convention had the right of hot pursuit where the offending vessels were within an hour’s sailing distance of the shore at the commencement of hot pursuit and beyond that distance at its termination; and

– (ii) Whether it was justified in sinking that vessel?

• Both States agreed that the initial position of the I’m Alone was beyond the three-mile limit of US territorial waters as stated in the Convention.

The I’m Alone Case (1929) [PCIJ]

• Held:– Use of force for the purposes of the Convention was

acceptable and included the accidental sinking of the vessel

– Deliberate sinking was neither justified by the Convention nor any principle of international law

• Recommended that the US acknowledge this illegality and apologise to His Majesty’s Canadian Government and pay $25,000

The Corfu Channel Case (1949) [ICJ]

• Held:1. By 11 to 5: Albania was responsible under international law for

the explosions and for the damage and loss of human life that resulted therefrom;

2. By 10 to 6: the assessment of the amount of compensation was reserved for further consideration;

3. By 14 to 2: the United Kingdom had not violated Albania’s sovereignty by sending the warships through the strait without the prior authorisation of the Albanian Government; and

4. Unanimously (with the concurring vote of the British judge, McNair): the minesweeping operation had violated the sovereignty of Albania.

UNCLOS I AND II Responses

• States continued to debate over the breadth and challenges to navigation in territorial seas and straits used for international navigation.

• An official breadth for the territorial sea was not adopted at UNCLOS I in 1957 or even at UNCLOS II in 1960.

• The concept of the territorial sea and contiguous zone were officially adopted/expressed in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.

UNCLOS I AND II Responses

• 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, Article 16(4):– “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.”

• Straits Used for International Navigation– Categories of straits

Part III of the 1982 LOSC recognises six different categories of straits. By using a combination of geographical criteria such as high seas, Exclusive Economic Zones (‘EEZs’), territorial seas, islands and legal criteria such as the use of straight baseline method, the 1982 LOSC has established six types of straits.

– Geographical scope– Material scope– Temporal scope

Six Straits and Three Passage Regimes, Part III LOSC

Categories of Straits

Figure 1. Source: Taken from S. N. Nandan and D. H. Anderson, “Straits Used for International: A Commentary on Part III of the United Nations Convention on the Law of the Sea 1982” (1989), 60 British Yearbook of International Law at 159, 199-204.

Six Straits and Three Passage Regimes, Part III LOSC

Categories of Straits

Figure 2. Source: Taken from S. N. Nandan and D. H. Anderson, “Straits Used for International: A Commentary on Part III of the United Nations Convention on the Law of the Sea 1982” (1989), 60 British Yearbook of International Law at 159, 199-204.

Six Straits and Three Passage Regimes, Part III LOSC

Challenges in Transit Passage

Rights and duties of user States vs.

Rights, duties, jurisdiction and discretion of strait States

for the protection and preservation of the marine environment

Rights and Duties of User States

Challenges in Rights and Duties of User States in Exercise of Transit Passage• Contiguous zone rights and tolls• Hostile intent under Articles 39 and 301, 1982 LOSC;

Article 39(1) (c ) San Remo Manual• Use of force: M/V Saiga 2• Signals • Hot pursuit: lessons from the I’m Alone, M/V Saiga 1

and 2

• Freedom of Navigation– Transit passage and rights and duties of user and strait

States– Transit passage and innocent passage– Use of force and peaceful purposes– Naval policies, immunity of warships and other naval

vessels, aircraft transit, archipelagic sea lanes passage and pollution enforcement

– Passage of warships

Rights and Duties of User States

• Freedom of Navigation (cont’d)– Transit passage and international air law– Archipelagic sea lanes passage– Differences between transit passage, innocent passage and

archipelagic sea lanes passage and a general duty to protect the marine environment

– Customary international law and transit passage

Rights and Duties of User States

• Implications of Part III of the 1982 LOSC– Knowledge of a strait State– Discrimination, safety of navigation, self-defence,

punishment, tolls, contiguous zone jurisdiction and neutral ships

– Safety of Navigation

• Articles 41 to 44 of the 1982 LOSC

Rights, Duties, Jurisdiction and Discretion of Strait States

Rights, Duties, Jurisdiction and Discretion of Strait States

Protection and Preservation of the Marine Environment

Naval cooperation for the conduct of baseline studies for the protection and conservation of the marine environment and its resources.

Rights, Duties, Jurisdiction and Discretion of Strait States

• Protection and preservation of the marine environment– Weaknesses of the marine pollution enforcement regime– Weaknesses of Article 233– Weaknesses of the Interpretative Statement on Article 233– Scovazzi’s view– Koh’s interpretation

• General duty to protect the marine environment

Rights, Duties, Jurisdiction and Discretion of Strait States

Principles of Marine Environmental Law• Customary International Law

– San Juan River Cases (1888)– Bering Sea Fur Seals Cases (1893)– North Atlantic Coast Fisheries Case (1910)– Trail Smelter Arbitration (1938-1941)– Corfu Channel Case (1949)– Gabcikovo-Nagymaros Case and Pulp Mills on the River Uruguay 2010

• International Environmental Law– State practice

• UN Conference on the Human Environment and the World Commission on Environment and Development

• UN Conference on Environment and Development, Rio Declaration, Agenda 21-Chapter 17

• World Summit on Sustainable Development, The Future We Want

Rights, Duties, Jurisdiction and Discretion of Strait States

Principles of Marine Environmental Law• International Environmental Law (Cont’d)– Sustainable development – Precautionary principle– Preventive and polluter-pays principles– Influence on the international law of the sea– Recommendations to amend the 1982 LOSC to

reflect international environmental principles

Rights, Duties, Jurisdiction and Discretion of Strait States

Principles of Marine Environmental Law• Marine Environmental Law for Strait States– Customary international law – Principle of sustainable development– Applicability of international law– Environmental law principles

Conclusions

• Challenges faced by the strait States as their territorial seas lost that status in exchange for the regime of straits used for international navigation where the strong doctrine of transit passage prevailed.

Conclusions

• Transit passage rights of ships, aircraft and spacecraft need to be reconciled with the strait States rights, duties and discretion not only to exercise contiguous zone rights in such straits but also for the protection and preservation of the marine environment of the straits.

Conclusions

Way forward• Challenge to navies to respond to the civilian call for

the protection and preservation of the marine environment and its resources

• This is to be done through the demarcation of the geographical zone and personal and material scope of the cooperation upholding the due diligence and due regard obligations of all States in the marine environment of the straits.

Thank you