IL BASIC

Two final points should be noted under the innocent passage regime. Article 23 of the 1958 Convention and Article 30 of the LOS Convention provide that "if any warship does not comply with the laws and regulations of the coastal State concerning passage in the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately . " Second, I believe a useful document which illustrates the interpretation given to the innocent passage regime is the September 23, 1989 Joint Statement by the United States and the former Soviet Union on the Uniform Interpretation of the Rules of International Law Governing Innocent Passage . Since it sets forth the positions of two major maritime powers, I find it highly persuasive evidence and have included it at the end of this paper.

(a) The Danish Straits The Treaty for the Redemption of the Sound Dues of 14 March1857 and the parallel Convention for the Discontinuance of the Sound Dues between Denmark and the United States of 11 April1857, among others, recognized "entire freedom of the navigation of the Sound and the Belts" (Article I) and "free and unencumbered navigation" (Article II) . Although only surface navigation and neither over flight nor submerged transit was in the contemplation of the parties in 1857, one cannot reasonably maintain that they are ipso facto excluded from the central intent of the agreement i .e. transit rights free from dues and interference. In a similar vein, as the regime established was ostensibly as broad a regime as it was possible to grant, subsequent developments in customary international law would be a legitimate means of interpreting its continued significance . The regime would preclude the Danes from applying their domestic laws to foreign flags transiting the straits except as recognized under modern international law (LOS Convention) and preclude them from applying their internal 1976 Ordinance to foreign warships.

(d) The Strait of Magellan The Boundary treaty between the Argentine Republic and Chile signed at Buenos Aires 23 July 1881, provides in Article 5 that "Magellan ' s Straits are neutralized forever, and free

navigation is guaranteed to the flags of all nations . " The applicable juridical regime is free navigation. I already mentioned some thoughts on that phrase in my discussion of the Danish 1857Convention.

V. AN INTERNATIONAL APPROACH TO FUTURE BRIDGE PROPOSALS OVERSTRAITS USED FOR INTERNATIONAL NAVIGATION From the foregoing, it should be evident that the construction of a bridge across a strait used for international navigation, if not subject from its inception to certain internationally accepted safeguards and readily applicable standards, could destroy the carefully crafted  balance of strait State/user States rights and obligations which form the essence of all the Convention ' s navigational articles . In crafting a reasonable international solution, we should look to the system whereby the international community, working through the International Maritime Organization as the "competent international organization," establishes sea lanes and traffic separation schemes through international straits. To designate a sealane or traffic separation scheme under that system, a State would first submit a proposal to the International Maritime Organization with a view toward adoption by that body. To be adopted, the sealane or traffic separation scheme must conform to generally accepted international standards and regulations and, the State must give "due publicity" to its proposal. Since sealanes and traffic separation schemes affect navigation, it is only reasonable and practical that similar steps be followed in the case of  bridges.

This is particularly so since the United States does not believe that customary international law permits a State unilaterally and without prior international approval to construct a fixed  bridge over an international strait which in many instances is the sole practical deep water route available. In order, therefore, to unify State practice, the United States suggests that all future construction plans for bridges over international straits be submitted to the International Maritime Organization. Our suggestion consists of three elements. First, prior to referral of a proposal by a straits State of plans to construct a fixed bridge over a strait used for international navigation, the straits State should be required to provide actual notice of the proposal well in advance through the International Maritime Organization to all States.

International straits100

Article 16(4) of the 1958 Convention on the Territorial Sea declares that: 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. This provision should be read in conjunction with the decision in the Corfu Channel case.101 In this case, British warships passing through the straits were fired upon by Albanian guns. Several months later, an augmented force of cruisers and destroyers sailed through the North Corfu Channel and two of them were badly damaged after striking mines. This impelled the British authorities to sweep the Channel three weeks later,

CITATION

((((((((((((100 See e.g. Brown, International Law of the Sea, vol. I, chapter 7; Churchill and Lowe, Law of  the Sea, chapter 5; O’Connell, International Law of the Sea, vol. I, chapter 8; R. Lapidoth,  Les D´etroits en Droit International , Paris, 1972; T. L. Koh, Straits in International  Navigation, London, 1982; J. N. Moore, ‘The Regime of Str aits and the Third United Nations Conference on the Law of the Sea’, 74 AJIL, 1980, p. 77; W. M. Reisman, ‘The Regime of  Straits and National Security’, ibid ., p. 48; H. Caminos, ‘Le R´egime des D´etroits dans la Convention des Nations Unies de 1982 sur le Droit de laMer’, 205 HR, 1987 V, p. 9; S. N.  Nandan and D. H. Anderson, ‘Straits Used for International Navigation: A Commentary on Part III of the UN Convention on the Law of the Sea 1982’, 60 BYIL, 1989, p. 159; Oppenheim’s  International Law, p. 633; Nguyen Quoc Dinh et al.,  Droit International  Public, p. 1168, and B. B. Jia, The Regime of Straits in International Law, Oxford, 1998. 101 ICJ Reports, 1949, p. 4; 16 AD, p. 155.)))))))))))))))

and to clear it of some twenty mines of German manufacture. The Court, in a much-quoted  passage, emphasised that: states in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorisation of a coastal state, provided that the passage is innocent.102 It was also noted that the

minesweeping operation was in no way ‘innocent’ and was indeed a violation of Albania’s sovereignty, although the earlier passages by British naval vessel s were legal.103 The 1982 Convention established a new regime for straits used for international navigation. The principle is reaffirmed that the legal status of the waters of the straits in question is unaffected by the provisions dealing with passage.104 A new right of transit passage is posited with respect to straits 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.105 It involves the exercise of the freedom of navigation and over flight solely for the purpose of continuous and expeditious transit of the strait and does not preclude passage through the strait to enter or leave a state bordering that strait.106 States bordering the straits in question are not to hamper or suspend transit  passage.107 There are three exceptions to the right: under article 36 where a route exists through the strait through the high seas or economic zone of similar navigational convenience; under article 38(1) in the case of a strait formed by an island of a state bordering the strait and its mainland, where there exists seaward of the island a route through the high seas or economic zone of similar navigational convenience; and under article 45 where straits connect an area of the high seas or economic zone with the territorial CITATION

(((((((102  Ibid ., p. 28; 16 AD, p. 161. The Court emphasised that the decisive criterion regarding the definition of ‘strait’ was the geographical situation of the strait as connecting two parts of the high seas, coupled with the fact that it was actually used for international navigation, ibid . Note that article 16(4) added to the customary rights the right of innocent passage from the high seas to the territorial sea of a state. This was of particular importance to the question of access through the straits of Tiran to the Israeli port of Eilat: see further below, note 115. 103 Ibid ., pp. 30 – 1, 33; 16 AD, pp. 163, 166. Note the final settlement of the case, UKMIL, 63 BYIL, 1992, p. 781. 104 Articles 34 and 35. 105 Article 37. See also R. P. Anand, ‘Transit Passage and Overflight in International Straits’, 26 IJIL, 1986, p. 72, and Oppenheim’s International Law, p. 636. 106 Article 38. 107 Article 44.))))))))))

sea of a third state. Ships and aircraft in transit must observe the relevant international regulations and refrain from all activities other than those incidental to their normal modes of continuous and expeditious transit, unless rendered necessary by  force majeure or by distress.108 Thus, although there is no formal requirement for ‘innocent’ transit passage, the effect of articles 38 and 39 would appear to be to render transit passage subject to the same constraints. Under article 45, the regime of innocent passage will apply with regard to straits used for international navigation excluded from the transit passage provisions by article 38(1) and to international straits between a part of the high seas or economic zone and the territorial sea of a foreign state. In such cases, there shall be no suspension of the right to innocent  passage.109 The regime of transit passage specifically allows for the passage of aircraft and probably for underwater submarines, while there are fewer constraints on conduct during passage and less  power for the coastal state to control passage than in the case of innocent passage.110 Transit passage cannot be suspended for security or indeed any other reasons.111 It is unclear whether the right of transit passage has passed into customary law. Practice is as yet ambiguous.112 Some states have provided explicitly for rights of passage through international straits. When the UK extended its territorial sea in 1987 to 12 miles, one of the consequences was that the high sea corridor through the Straits of Dover disappeared. The following year an agreement was signed with France which related to the delimitation of the territorial sea in the Straits of Dover and a joint declaration was issued in which both governments recognised: Rights of unimpeded transit passage for merchant vessels, state vessels and, in particular, warships following their normal mode of navigation, as well as the right of over flight for aircraft, in the Straits of Dover. It is understood that, in accordance with the principles governing this regime under the rules of international law, such passage will be exercised in a continuous and expeditious manner.113 A number of straits are subject to special regimes, which are unaffected by the above  provisions.114 One important example is the Montreux Convention of 1936 governing the Bosphorus and Dardanelles Straits. This provides for complete freedom of transit or navigation for merchant vessels during peacetime and for freedom of transit during daylight hours for some warships giving prior notification to Turkey.115

CITATION

((((((((((((((( 108 Article 39. Under articles 41 and 42, the coastal state may designate sea lanes and traffic separation schemes through international straits. 109 Article 45(2). 110 See articles 38 – 42. See also, as to the differences between the regimes of innocent  passage through the territorial sea, transit passage and archipelagic sea lanes passage,Nandan and Anderson, ‘Straits’, p. 169. 111 Article 44. 112 See Churchill and Lowe, Law of the Sea, p. 113, but cf. O. Schachter, ‘International Law in Theory and Practice’, 178 HR, 1982, pp. 9, 281. 113 Cmnd 557. See also 38 ICLQ, 1989, pp. 416 – 17 and AFDI, 1988, p. 727. 114 Article 35(c). 115 See e.g. Churchill and Lowe,  Law of the Sea, pp. 114 ff. See also UKMIL, 57 BYIL, 1986, p. 581, and F. A. Vali, The Turkish Straits and NATO, Stanford, 1972. Note that the dispute as to the status of the Strait of Tiran and the Gulf of Aqaba between Israel and its Arab neighbours was specifically dealt with in the treaties of peace. Article 5(2) of the Israel –  Egypt Treaty of Peace, 1979 and article 14(3) of the Israel – Jordan Treaty of Peace, 1994 both affirm that the Strait and Gulf are international waterways open to all nations for unimpeded and non-suspendable freedom of navigation and overflight. As to the US –   USSR Agreement on the Bering Straits Region, see 28 ILM, 1989, p. 1429. See also, as to the Great Belt dispute between Finland and Denmark, M. Koskenniemi, ‘L’Affaire du Passage par le GrandBelt’, AFDI, 1992, p. 905. See, as to other particular straits, e.g. S.C. Truver, Gibraltar and the Mediterranean, Alphen, 1982; M. A. Morris, The Strait of  Magellan, Dordrecht, 1989; G. Alexander, The Baltic Straits, Alphen, 1982, and M. Leiffer,  Malacca, Singapore and  Indonesia, Alphen, 1978.

ARCHIPELAGO

The People's Republic of China proposed105 on 16 July 1973: An archipelago as an island chain consisting of islands close to each other may be taken as an integral whole in defining the limits of the terr itorial sea around it.

Definitions Archipelago An archipelagic State is a State constituted wholly by one or more archipelagos and may include other islands. An archipelago is a group of islands, including parts of islands, inter connecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic, and  political entity, or which historically have been regarded as such.

A State may declare itself to be an archipelagic State where the land territory of the State is entirely composed of three or more islands; and it is possible to draw a perimeter, made up of a series of lines or straight baselines, around the outermost points of the outermost islands in such a way that: no territory belonging to another State lies within the perimeter, no baseline is longer than a certain number of nautical miles, and the ratio of the area of the sea to the area of the land territory inside the perimeter does not exceed a certain figure, provided that any straight baseline  between two points on the same island shall be drawn in conformity with the article of the Convention on straight baselines.

Straight baselines: a. Straight baselines join the outermost points of the outermost islands and drying reefs of the archipelago in drawing the  baselines from which the extent of the territorial sea, economic zone and other special jurisdictions are to be measured.  b. Same as formula (a),  but additionally, a baseline could  be any non-navigable continuous reefs or shoals lying between such points. c. The baselines may be drawn not only in the case of an ar chipelagic State  but also of an archipelago that forms part of a State.

Archipelagic waters: a. Waters enclosed by the baselines, regardless of their depth or distance from the coast,  belong to, and are subject to the sovereignty of, the archipelagic State to which they appertain.  b. Same as formula (a), but the last clause provides that sovereignty is exercised subject to the  provisions of these articles and other rules of international law. c. Same essentially as formula (a), but adding that vessels of any flag may sail them in accordance with the provisions laid down by the archipelagic State. The sovereignty and rights of an archipelagic State extend to the air space over its archipelagic waters as well as to the water column and the sea-bed and subsoil thereof, and to all of the resources contained therein.

Passage through archipelagic waters: a. Subject to the provisions of Ar ticles XIV to XVlll, shi ps of all States shall enjoy the right of innocent passage through ar chipelagic waters.  b. The innocent passage provision applies, but where par ts of ar chipelagic water s have before the date of ratification of the Convention been used as routes for international navigation  between one part of the high seas and another  part of the high seas as the ter ri torial sea of another State, the Convention applies to those r outes (as well as to those  parts of the territorial sea of the archipelagic State adjacent thereto) as if they were straits. c. All ships shall enjoy equally freedom of  passage in archipelagic straits, the approaches ther eto, and those areas in the archipelagic waters of the archipelagic State along which nor mally lie the shortest sea lanes used for international navigation between one  part and another par t of the high seas.

Foreign warships: a. If any foreign warship does not comply with the laws and regulations of the archipelagic State concerning its passage through the archipelagic waters on the sea lanes and disregards any request for compliance which is made to it, the archipelagic State may suspend the  passage of such warship and require it to leave the archipelagic waters  by such safe and expeditious route as may be designated by the archipelagic State.  b. All ships passing through the straits and waters of archipelagic States shall not in any way endanger the security of such  States, their territorial integrity or political independence. Warships passing through such straits and waters may not engage in any exercises or gunfire, use any form of weapons, launch or take on aircraft, carry out hydro graphic surveyor engage in any similar activity unrelated to their passage. All ships shall inform the archipelagic State of any damage, unforeseen stoppage, or of any action rendered necessary by force majeure.

Suspension of transit: a. Subject to the provisions of the  proper  paragraph, an archipelagic State may not suspend the innocent passage of foreign ships through designated sea lanes, except when essential for the protection of its security, after giving due  publicity and substituting other sea lanes for those through when innocent passage has been suspended.  b. An archipelagic State may not interrupt or suspend the transit of ships through its straits or archipelagic waters, or take any action which may impede their passage.

THE PRACTICE OF ARCHIPELAGOS A. Coastal Archipelagos

1.

 Australia.

Legislative authority over the sea does not extend beyond the distance of three marine miles from low water mark of the mainland and the islands respectively; waters outside the threemile limit form part of the high seas.156 2.

Cuba.

"The waters situated between the islands, islets or cays and the mainland of Cuba are internal waters."157 3.

 Denmark.

Waters between and inside the Danish coastal archipelagos are internal waters, delimited by straight baselines with a ten mile maximum.158 4.

 Egypt.

Internal waters are delimited by straight baselines with a maximum length of twelve nautical miles drawn between the mainland and islands and from island to island.159 5.

 Finland.

The maximum length of baselines is twice the breadth of the marginal seas. Since this breadth is four nautical miles, the maximum length is eight nautical miles. Where archipelagos are situated too far out at sea to be included in the outer coastline, they have their own territorial waters, are considered as a whole, and are enclosed by baselines in length twice the  breadth of the marginal seas. Since this  breadth is three nautical miles, the maximum length is six miles. Waters between and inside the islands or islets are internal waters.160 6.

 Iceland .

Internal waters are delimited by straight baselines enclosing the waters of coastal archipelagos, islands, and rocks, without a stipulated maximum length, the baselines varying according to the particular geographic features.161 7.

 Norway.

As upheld  by the International Court of Justice in its celebrated judgment in the  Fisheries case, the Norwegian straight  base-line system, laid down in the Royal Decree of 12 July 1935, includes the following main features: (a) A continuous line of straight baselines is drawn all along the coast. The outermost points of the coastal archipelago, including drying rocks, are used as base points. (b) Ther e are no maximum lengths for such baselines. Each of them is dependent u pon the geographical configuration of the coastline. (c) The baselines follow the general direction of the coast. (d) There is no connection between the length of the baselines and the breadth of the marginal sea. (e) The waters inside the baseline are considered internal waters. Thus, the waters of fjords and bays and the waters between and inside the islands, islets and rocks of the safeguard are internal water s.

(f) The outer limits of the marginal sea are drawn outside and parallel to such baselines at the distance of four nautical miles.162

155 See EVENSEN, op. cit . supra, note 35 at 295-299. 156The position of Australia is implicit in its consent given to this assertion by the United K ingdom during the  F isheries case as to the Barrier Reef, a coastal archipelago situated off Queensland. 157Art. 6, par. 2, of the Decree of 8 January 1934. 158Neutrality Decrees of 27 January 1927 and 11 September 1938, and enactments on Fishing and Hunting in Greenland Waters dated 1 April 1925, 27 May 1950, 7 June 1951, and 11 November 1953. 159Art. 4, Royal Decree of 18 January 1951. 160Act of 18 August 1958 and Pr esidential Decree of the same date. 161Fisheries Regulations of 19 March 1952. 162EvENSEN, supra, note 35 at 295.

B. Outlying Archipelagos 1. Behmudas. In the  Fisheries case, the United Kingdom asserted its ,authority over the coastal waters within the Bermudas "up to a distance of three nautical miles from the outer ledges."169 2. Cook Island   s. In the Fisheries case, the United Kingdom stated that the government of the  New Zealand has not drawn a continuous belt of territorial waters around each separate island.170 3. Faeroes. Its eighteen inhabited islands and many islets, skerries, and rocks, are treated as a unit, the territorial waters of which are drawn  by a mixed system of arcs and straight lines: straight lines delimit the outer limits of the fishery zones, while arcs of circles round off the limits where two straight lines meet.l7l 4. Fiji Islands. In the  Fisheries case, the United Kingdom stated that the Fiji Islands were not treated as a whole for the delimitation of territorial waters and that each island has a separate belt of such waters.172

5. Galapagos. Ecuador treats the Galapagos as a unit by drawing straight baselines between "the most salient points of the outermost islands forming the contour of the archipelago of Galapagos."173 6. Hawaii. Although the Hawaiian Islands seem to have been considered as a whole in the  past,174 at present the government of the United States does not recognize the archipelago concept in favor of this state, and each Hawaiian island has its own belt of territorial waters. 7. Iceland. A consecutive line of straight baselines is drawn along the

C. Special Outlying Archipelagos 1. PHILIPPINES The Philippines is a special outlying archipelago in the real sense: it is sui g eneris. It is the only outlying or mid-ocean archipelago in the world where territorial area is delimited by metes and bounds, very much as in a Torrens title, indicating the parallels of latitudes and the meridians  of longitudes of the perimetric boundary lines of its territory. Such metes and  bounds wer e not only drawn in international maps and charts dating back to over three hundred years ago, but were also embodied in international treaties which thus define and delimit the national frontiers of the archipelago. Within the metes and bounds of such international treaty limits, the Philippines as successor state exercises legal title and dominion over all the maritime territory. Accordingly, the new 1973 Constitution of the Philippines defines the national territory under Article I, Section 1 as follows: The national territory comprises the Philippine archipelago, with all the islands and waters embraced ther ein, and all the other territories belonging to the Philippines by historic right or legal title, including the territorial sea, the air space, the subsoil, the sea-bed, the insular shelves, and the other submarine areas over which the Philippines has sovereignty or  jurisdiction. The waters around, between, and connecting the islands  of the archipelago, irrespective of their  breadth and dimensions, form  part of the internal waters of the Philippines. As an archipelagic state, the Philippines is an island-studded sea rather than a group of islands with necessary appurtenances of adjacent waters. The legal distinction between these two geographical concepts is important. As an island-studded sea, the Philippine archipelago comprises sea which must have a territorial basis, and the delimitation of its metes and

 bounds must be determined according to the modes of acquisition of state territory recognized by international law. But were it merely a group of islands with necessary ap purtenances of adjacent waters, the delimitation of their breadth seaward would have an international aspect

167See EVENSEN, supra, note 35 at 297. 168Enactment of 1 December (28 November) 1948. 169I.C.J., PLEADINGS, ORAL ARGUMENTS, DOCUMENTS, FISHERIES CASE, su pra, note 165 at 532. 170Ibid . at 523, 524. 171Argument of 22 April 1958 between Denmark and the U.K. drawing up the exclusive fishing zones of the Faeroes. 172I.C.J., PLEADINGS, ORAL ARGUMENTS, DOCUMENTS, FISHERIES CASE, supra , note 165 at 532. 173Presidential Decrees on fi sheries of 2 F ebruary 1938 and 22 February 1951. 174See the Neutrality Proclamation of 16 May 1854 and 27 May 1877. 175See Spitzbergen Tr eaty of 9 February 1920.