LAW OF THE SEA 3

Question 1

Which ones are the main straits and chanells?

Answer 1

• Bosporus Strait
• Strait of Gibraltar
• Bering Strait
• Strait of Magellan
• Strait of Hormuz
• Strait of Messina
• Bab-el Mendeb Strait
• Strait of Malacc.
• Suez Canal
• Panama Canal

Question 2

Which is the definition of “Strait”

Answer 2

A ‘strait’ is a narrow stretch of sea connecting two extensive areas of sea (or a narrow passage connecting two sections of the high seas). Regulated under UNCLOS III.

Question 3

What is the biggest legal problem that appears with the creation of straits as a subject?

Answer 3

Disappearance of high seas corridors when the breadth of the Territorial Sea expanded from 3/6 to 12 miles making most of the international Straits become part of the Territorial Sea of Straits states. Disappearance of high seas corridors.

Question 4

Doctrine clash when classifying straits as subjects and its solution?

Answer 4

Straits States wanted to stick to the regime of innocent passage vs Maritime States, which claimed for freedom of navigation.

SOLUTION: Regime of ‘transit passage’ result of negotiations and compromise

Question 5

Why is the The Corfu Channel Case important?

Answer 5

It illustrates strait law before UNCLOS III Three separate events involving Royal Navy ships in the Channel of Corfu which took place in 1946:

• Royal Navy ships came under fire from Albanian fortifications.
• Royal Navy ships striking mines.
• Royal Navy conducted mineclearing operations in the Corfu Channel, but in Albanian territorial waters, and Albania complained about them to the United Nations.

Albania was to pay £844,000 to the United Kingdom. “in the opinion of the Court, States in time of peace have a right to send their war ships through straits used for international navigation between the two parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent.

Question 6

UNCLOS I and the Geneva Convention strait regulation

Answer 6

Article 16 (4) of Geneva convention made passages between high seas and territorial waters to be also considered as straits.

Question 7

Competition for UNCLOS III

Answer 7

The maritime powers wishing to freely navigate through straits vs Straits States who were concerned to protect its security and other interests in their territorial waters.

Question 8

Interest of maritime states on UNCLOS III negotiations

Answer 8

• Maintaining high seas status in corridors in between 116 straits by limiting aquisition of waters (avoid coastal states getting 12 miles) so freedom of navigation in high seas (art 87) prevailed.

Question 9

Interest of coastal states on UNCLOS III negotiations

Answer 9

-Taking out the free navigation passages in between the striaits by claiming the 12 miles of territorial waters.

-Exceptions: Indonesia and Malaysia agreed that the Straits of Malacca and Singapore are not international straits, while fully recognizing their use for international shipping in accordance with the principle of innocent passage. Singapure followed.

Question 10

What is the compromise formula for regulation of straits under UNCLOS III?

Answer 10

The ‘transit passage” regime: Acceptance of this regime made it possible for the Conference to reach agreement on 12 nautical miles as a maximum breadth of the territorial sea.

Question 11

Which ones are the 4 regulatory categories for straits as adopted in part 3 of UNCLOS III?

Answer 11

Part III of the Convention (Articles 34 to 45) deals with
“Straits Used for International Navigation:

– 1. Straits governed by long-standing special conventions;
– 2. Straits with central corridors of high seas or EEZ;
– 3. Straits subject to the regime of innocent passage;
– 4. Straits subject to the regime of transit passage

Question 12

Regulation of Straits governed by long-standing special conventions

Answer 12

Article 35 (c): The straits regime laid down in Part III of the
Convention does not affect “the legal regime in straits in which
passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such
straits.”

Ex: Bosphorus and Dardanelles by Montreux Convention (1936)

It gives the Republic of Turkey control over warships entering the straits but guarantees the free passage of civilian vessels in peacetime.

Question 13

Regulation of Straits with central corridors of high seas or EEZ

Answer 13

Article 36: Part III does not apply to 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.

Florida Strait between USA and Cuba would be
an example.

This situation will normally be possible in a strait wider than 24 miles. regime of innocent passage will apply to those parts of the strait which lie within the territorial sea limits and the regime of freedom of navigation.

Question 14

Regulation of Straits subject to the regime of innocent passage

Answer 14

Article 45(1) (b), the regime of innocent passage applies in straits connecting a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State. And there shall be no suspension of innocent passage through them (Article 45 (2)

Ex: Straits of Tiran between Egypt Sinai and Saudi Arabia

Question 15

Exception of Messina on Regulation of Straits subject to the regime of innocent passage.

Answer 15

First, under Article 38 (1), a strait formed by an island of a State bordering the strait and its mainland, where there exists seaward of the island a route of similar convenience through high seas or EEZ, is entirely excluded from the ‘transit passage’ regime.

Question 16

Regulation of Straits subject to the regime of transit passage

Answer 16

Article 37: The regime of transit passage applies to straits which are used for international navigation between one part of the high seas or an EEZ and another part of the high seas or an EEZ.

But 2 conditions:

1. The geographical condition is that the strait connects one part of the high seas or an EEZ and another part of the high seas or an EEZ.
2. The functional condition is that the strait is ‘used for international navigation’.

Ex: Straits of Malacca and Singapore

These two criteria are taken (and adapted) from the
judgment of the ICJ in the Corfu Channel case.

Question 17

What is transit passage?

Answer 17

Article 38(2): exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

BUT: this is not a tool for entering, leaving or returning from a State bordering the strait.

Question 18

Sovereignty of the strait State and the regime of transit passage.

Answer 18

Article 34(1): The regime shall not in other respects affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their airspace, bed and subsoil.

Article 34(2): “The sovereignty or jurisdiction of the States bordering the straits is exercised subject to this Part (III) and to other rules of international law.”

Question 19

What is transit passage?

Answer 19

In between freedom of passage and innocent passage. foreign ships are not as free as when they are exercising freedoms of the high seas. But they are freer than when they are exercising the right of innocent passage in the territorial sea of a coastal state

Question 20

Duties of ships and aircraft during transit passage Under Article 39(1)

Answer 20

(a) proceed without delay through or over the strait.

(b) refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait.

(c) refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress.

(d) comply with other relevant provisions of this Part (III) of the Convention

Question 21

Duties for ships (only ships) during transit passage Under Article 39(2)

Answer 21

(a) comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea.

(b) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships.

Question 22

Duties for aircraft (only aircraft) during transit passage.

Under Article 39(3)

Answer 22

(a) observe the Rules of the Air established by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation.

(b) at all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio
frequency.

Question 23

Two requirements for coastal States to designate sea lanes and traffic separation schemes in the strait.

Under Article 41

Answer 23

(a) The sea lanes and traffic separation schemes must conform to generally accepted international regulations.

(b) They must first be submitted to and adopted by the International Maritime Organization (IMO).

Question 24

Conditions for the strait State to make laws and regulations.

Under Article 42(1)

Answer 24

(a) Assuring the safety of navigation and the regulation of maritime traffic, as provided in article 41.

(b) the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait.

(c) with respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear.

(d) the loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of States bordering straits.

Question 25

Duties of the strait State

Answer 25

Article 42(2): even with laws, shall not discriminate in form or in fact among foreign ships or their application have effect of denying, hampering or impairing the right of transit passage.

Article 44: States bordering straits shall not hamper transit passage and shall give appropriate publicity to any danger to
navigation or overflight within or over the strait of which they have knowledge.

Question 26

Cooperation between straits States and user States

Answer 26

Article 43 User States and States bordering a strait should by agreement cooperate:

(a) in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation.

(b) for the prevention, reduction and control of pollution from ships.

This article is not mandatory. It contains no mechanisms to compel such cooperation among User States and Straits States.

Question 27

Innocent passage vs, transit passage

Answer 27

1) Aircraft: There is no right of innocent passage for aircraft but the right of transit passage is enjoyed by aircraft as well as ships.

2) Submarines: Although submarines in innocent passage are required to navigate on the surface and show their flags, there is no such requirement for submarines in transit passage.

3) Nuclear powered ships:
Innocent passage – (Article 23) Foreign nuclear-powered ships and ships carrying nuclear shall carry documents and observe special precautionary measures established for such ships by international agreements.

Transit passage – no special provision.

4) Conditions relating to Sea lanes and traffic separation schemes:
Innocent passage – the coastal State is required simply to ‘take into account’ the recommendations of competent international organizations.

Transit passage – the coastal State may designate and prescribe only after its proposals have been adopted by the competent international organization.

5) The conditions of transit passage (Article 39) and the subjects on which the coastal State may make laws and regulations (Article 42) are less numerous than those specified for innocent passage.

6) Cooperation between strait States and user States (article 43): There is no corresponding provision in relation to the regime of innocent passage.

Question 28

High Seas definition

Answer 28

Generally accepted definition1 of High seas: parts of the sea which are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.

1 US and maritime powers think EEZ is part as well of High seas.

Question 29

High Seas Legal Regime

Answer 29

*High seas are not subject to the jurisdiction of any State.
*Open to all States, whether coastal or land-locked.
*High seas are reserved for peaceful purposes.

Question 30

How can freedom of high seas be excersiced

Answer 30

Under the conditions laid down by UNCLOS and by other rules of international law which includes:

(a) freedom of navigation;
(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines;
(d) freedom to construct artificial islands…;
(e) freedom of fishing;
(f) freedom of scientific research.

Question 31

Maintenance of order on the High seas

Answer 31

International law requires States to grant
nationality to ships registered in their countries.

Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.

Question 32

Duties of the flag State for vessels in high seas.

Answer 32

Art. 94
– 1. Every State shall effectively exercise its jurisdiction and control over ships flying its flag

– 3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard to:
* (a) the construction, equipment and seaworthiness of ships;
* (b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international
instruments;
* (c) the prevention of collisions

Question 33

The IMO Conventions for duties of flag State

Answer 33

The International Convention for the Safety of Life at Sea (SOLAS, 1974)

Convention on the International Regulations for Preventing Collisions at Sea (COLREGs), 1972

Prevention of marine pollution conventions, such as: International Convention for the Prevention of Pollution from Ships (MARPOL 73/78)

The London Anti-Dumping Convention, 1972

Question 34

The ILO Conventions for duties of flag State

Answer 34

Maritime Labour Conventions on the safety and working conditions of seafarers.

Question 35

Criminal jurisdiction in matters of collision Art. 97 in High seas

Answer 35

No penal or disciplinary proceedings may be instituted against such person except before the judicial … authorities either of the flag State or of the State of which such person is a national.

No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.

Question 36

Exceptions to freedom of the high seas

Answer 36

Exceptions under UNCLOS include:
– Piracy
– Unauthorized broadcasting
– Slave trading
– Illicit drug trafficking
– Ships without nationality
– Ships hiding real nationality

Question 37

Definition of piracy.

Answer 37

Art. 101, definition
Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship, and directed:

– (i) on the high seas against another ship , or against persons or property on board such ship;
– (ii) against a ship, persons or property in a place outside the jurisdiction of any State.

Question 38

Mutiny in a ship

Answer 38

Mutiny is not piracy except: the acts of piracy committed by a warship or government ship whose crew has mutinied and taken control of the ship are assimilated to acts committed by a private ship.

Question 39

Right of visit

Answer 39

A warship which encounters on the high seas a foreign ship is not justified in boarding it unless:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109
(d) the ship is without nationality

Question 40

Right of hot pursuit

Answer 40

International Law allows the coastal State to pursue a foreign vessel, which violated its laws and regulations within its maritime zones, to the high seas and there arrest it.

Question 41

International Seabed

Answer 41

Termed “the Area”, defined as the seabed and subsoil beyond the limits of national jurisdiction. The Area has the status of ‘common heritage of mankind’.