UN Convention on the Law of the Sea

The principal question to be resolved by the 1982 UN Convention on the Law of the Sea, in what concerns the straits' regime, was the allocation of an authority to control and regulate air and sea communications that would balance the interests of States relying on the use of straits for air and sea communications with the interests of coastal states, which would be affected by such use.

These diverse interests (as considered in the Corfu Channel case (1949) by the International Court of Justice) along with the growth of the world trade and the heightened awareness of the need to protect the marine environment were the main forces that had led to debate over the selection of a new legal regime to govern air and sea communication through straits. For some States, including many States bordering the Baltic Sea, the Black Sea, The Persian Gulf and the Mediterranean Sea, the use of straits is essential if they are to have access to the high seas and to the ocean communications' system as a whole.

For those States, such as Japan1, straits are central links in the routes of supply of vital resources and commodities. To our contemporary international community, ensuring an unimpeded right of navigation and overflight through the straits is vital not only to some western naval powers, but also to average industrialized countries. Still, other States, such as Russia and the U. S. A, depend upon the use of straits to maintain their global security interests.

Thus, obstructions or restrictions of the right of navigation and overflight could have serious effects on the economic, political and military interests of States that rely on passage through straits to sustain or faciliate their communication with the rest of the world. This is the reason why the coastal state may legislate for passing vessels in matters such as the prevention of pollution and the safety of the navigation only by applying internationally agreed standards in its legislation (LOSC, art.

42(1)). By that way it precludes the exposure of merchant ships to a mass of differing and possibly inconsistent regulations as they sail around the world. Such obstructions and inconsistency can substantially increase the cost of moving goods in international trade and interrupt the movement of resources necessary to modern industrial economies; in extreme cases, it could preclude some seaborne or airborne trade entirely2, affecting the developed and developing countries alike.

In addition, restrictions or threatened restrictions on the movement of naval forces and military aircrafts may endanger the security of lines of communication considered vital by states such as U. S. A because of the strategic importance of the Straits3. On the other hand, some coastal States believe that traffic in straits endanger certain of their security interests.

Such claims apparently result either from fears of attack, infiltration or military intelligence activities conducted by transiting vessels and aircrafts, or from fears of military confrontations centering on strategic straits4. Furthermore, coastal states became more concerned about the dangers of pollution and catastrophic accidents in the straits and particular attention was focused on these dangers by the wreck of the Torrey Canyon5 and that of the Ocean Eagle6.

So, the objective of the UNCLOS III to reconcile on a global basis the interests of all states directly or indirectly affected by passage through straits used for international navigation has been achieved by introducing the "transit passage" through the international straits, since this new right allows less coastal state control over passing vessels than does innocent passage, but also provides provisions which differentiate it from the regime of the high seas and give to the coastal state the right to implement international safety and pollution standards7.

Transit passage is the exercise of freedom of navigation and overflight solely for the continuous and expeditious transit of the strait between one area of high seas or economic zone and another, or in order to enter or leave a state bordering the strait (LOSC, art. 38(2)). Three categories of strait are excluded from this definition. The first is the category of straits through which there is a high-seas route, or a route through an EEZ , of similar convenience with respect to its navigational and hydrographical characteristics (LOSC, art. 36)8.

The second category is that of straits formed by an island bordering the strait and its mainland, where a route of similar navigational and hydrographic convenience exists through the EEZ or high seas seaward of the island (LOSC,art. 38(1))9. The third category is that of straits connecting an area of the high seas or an exclusive economic zone with the territorial sea of a third state ( LOSC,art. 45)10. The concept of the transit passage is wider than that of innocent passage. One can easily enumerate the differences between innocent passage regime and transit passage regime.

Apart from the difference in concept, which is appreciable, the more important differences lie in the various provisions, or absences thereof, governing the two regimes. It has been demonstrated that certain prohibited activities under Articles 39 and 40 of the LOSC do not render passage non-transit, since there is absence of any explicit provision which render the coastal states the right to take necessary steps in straits area to prevent passage that is non-transit, whereas similar activities in the context of innocent passage may render passage non-innocent.

Thus, certain activities which are prohibited for innocent passage according to article 19(2) of the LOSC appear not to be inconsistent with transit under article 38(2) of the LOSC. For example, a passage becomes non-innocent if, during passage, an exercise or practice with weapons is carried out11. Such an activity is not expressly prohibited for transit passage and could be consistent with transit passage under article 38(2) of the LOSC. Further to that, in case of non-compliance with the laws and regulations of the coastal states, warships may be required to leave the territorial sea under the art.

30 of the LOSC while there is no provision that warships may be required to cease transit passage for the same reason. Coastal states may legislate for passing vessels only in respect of fishing and the taking on board or putting overboard for any commodity, currency or person in violation of local customs, fiscal, immigration or sanitary regulations (art. 42(1), LOSC) in comparison with the more comprehensive restrictions that are imposed with the implementation of art. 21,23 and 25 of the LOSC in innocent passage regime.

Moreover, in transit passage regime, aircraft enjoy the right of overflight according to the art. 38(1) of the LOSC, while there is no provision permitting such a right in innocent passage regime. Straits of Malacca Without any due scrunity, this transit passage regime seems to have been passed as having created some new rights of free passage, including submerged passage, through, over and under the territorial sea of the state bordering the straits.

More precisely, while in innocent passage regime, submarines and other underwater vehicles must navigate on the surface and show their flag (art.20 of the LOSC), in transit passage appears that submarines and other underwater vehicles may navigate submerged since there is no provision prohibiting that. This, at least, is the interpretation adopted by the maritime States, and it is consistent with the travaux preparatoires of UNCLOS III. One more difference between these two regimes, is the requirement by the states which are bordering straits to submit proposals on sea lanes and traffic separation schemes in the strait, that must first have been adopted by the competent international organization- that is to say the IMO (LOSC, art. 41).

In what concerns innocent passage, there is no requirement that coastal states submit proposals on sea lanes and traffic separation schemes to an external authority. The states may just take into account the recommendations of competent international organizations in the designation of sea lanes and the prescription of traffic separation schemes. (LOSC,art. 22). But the most substantial difference, to my opinion, is the lack of any explicit provision which would render the coastal state the right to take necessary steps in straits area to prevent "non transit " passage, as it may happen in the territorial sea under the art.

25 of the LOSC for the protection of its security. Conversely, States bordering straits shall not intentionally hamper or suspend transit passage (LOSC, art. 44). Of course, in extreme cases coastal state action might be justifiable on the basis of the right of self-defence or the somewhat wider rights to take counter-measures apparently admitted by the International Court of Justice in the Nicaragua case12. { Words: 1430 } 1 Special reference is made to Japan because of its dependence on the world trade…

See Maritime Economics, Martin Stopford, 2nd edition, ch. 8 pp 278-280 "… Japan is the economic hub of maritime Asia. Its trade of 800mt in the early 1990s makes it the world biggest seaborne importer. Eighty per cent of the oil needed for the Japanese economy in fiscal 1972 was imported from the Middle East. Most of this oil was transported through the Straits of Malacca and Singapore or the Straits of Lombok and Sunda… ". 2 See Maritime Economics, Martin Stopford, 2nd edition, ch. 2, p. 61 "…

The events which followed the Suez crisis provide a case study: Nobody seemed to expect the recession which subsequently occurred, a depression which must be considered the worst since the middle thirties From sky high rates at the end of 1956 they fell through to what can only be termed an almost rock bottom level… ". 3 The significance of straits in strategic calculations stems from their potential use as choke-points where the nuclear missile submarines of one state may be detected and then trailed by the anti-submarine warfare elements of opposing states.

See A. QUANBECK & B. BLECHMAN, STRATEGIC FORCES: ISSUES FOR THE MID-SEVENTIES 81 (Brookings Institution Staff Paper ) ( 1973 ) 4 The Indonesian representative speaking before Subcommittee II of the Seabeds Committee asserted that a free transit regime for straits "could turn Indonesian waters into an area of confrontation and conflict between opposing naval powers in which the only part played by Indonesia would be that of victim". He also commented, "In fact the mere presence of foreign warships and submarines in Indonesian waters could set off domestic political reactions. "