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Legal Picture of the Law of the Sea Would in Any Case Be Confusing

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Legal Picture of the Law of the Sea Would in Any Case Be Confusing THE BAI TIC STRAITS oastal StateS. In What Nay be its prinCi al h evement, UNCLOShas developed such a re i See also ibid., at . 121 ~ " ' i convention, however, thee UNCLOSUNC straits destined to serve as a powerfulf mod.el deve Lopment o f a new customarus omary law1 of straits ~t tI Some may even que stion. whet her a sin le multi- Caraca.s Convention wo u lda equately cover of physical, navigational a, po 1'itical, and ems e ar anelles, G braltax', Malacca, the Danish Straits Bah 1- e Qt er nar rows. These skepticsep ics mayma askk bi 1 ate.ra l or specia 1 regional agreements . geweniq, ~eu re, note 1, p. 67. COMMENTARY Ib R. Andreasen Ambassador Ministry of Foreign Affairs Denmark I was indeed very honoredwhen the Lawof the Sea Institute asked me to be one of the commentators on the subject of "TheBaltic Straits." Knowingthe usualvery high academicstandards of the Conferences of the Institute, I heSitated in OfferingNy VieW- pointsin sucha distinguishedgathering. Being here andseeing so manywell knownprofessors of interna- tional law, andespecialLy after listeningto the ex- tremelyinteresting and comprehensive speech by Pro- fessorVitzthum, I think I shouldhave hesitated even Nore. Qnthe otherhand, it mightafter all beof interestto the conferenceto have an input on the Straitsissue which originates more from practical experiencethan f romacademic studies. Beforecommenting onthe Straits issue I would, however,like to makesome general remarks in rela- tionto ProfessorVitzthum's introduction. I under- stoodhim to saythat, irrespective ofwhether ornot a newLaw of theSea Convention cameinto force, the legalpicture of thelaw of the sea would inany case beconfusing. gewould have a situationwith a lelega al t p "disorder," and he felt that the foreseen 9egimegime of straits was an example of this situation. think that everyone who has worked with th e Draft Convention will willingly admit that ls cog plicated and to someextent even confusing. The Cpn vent.ion is, however, in a very comprehensive @annenner dealing with what can only be regarded as a revolu tion at sea, ~d the negotiations at the Law of the Sea Conference have had t.o take into account the pf ten contradicting interests of coastal, maritime, and landlocked States. This leads to a legal system wit rules and exceptions to the rules as well as excep- tions to the exceptions, resulting in sometimes not very clear formulations. The President of t' he Con ference has called the Draft Convention a lawyeris gold mine. The full implication of this remark is of course not fair, but in its provocative way, it underlines the fact that in the future it will be <z extremely important task for international lawyers to analyze and explain all the di f ferent elements in the new Convention. This being said, it is, however, my firm belief that the dif ficulties involved in the fu- ture work of interpreting the Convention is nothing compared to the situation which would arise i f the Convention did not come into force. In such a situ- ation, I ara afraid we could truly fear legal disorder. I shall now turn to the subject of international straits in the Baltic Sea, and I shall limit my re- marks to straits situated in the Danish area, In his comprehensive l isting of straits and sailing routes, professor Vitzthum very rightly pointed to the im- portance of the IMCOshipping route from Skagento the south of Gedser, and he mentioned the Kattegat as the first Baltic Strait From a geo-navigational point of view this might be a correct description. Prom a legal point of view, neither the INCO route as such nor the Kattegat in itself has previously been regarded as a strait. Until recently both Denmark and Sweden have claimed three- and four mile territorial seas re- spectively, and the INCGroute has, for mostparts in the Skagerrak and the Kattegat, been placed on the high seas outside their territorial waters. ~avi'Pa- tion in these waters has therefore not been relat« to legal strait problems. But if both countries «« to extend. their territorial seas to 12 miles, situation would be changed, and parts of the Katte9~t Danish islands Lae sg anand AnAnh olt1 and the h coast would no longer hee ighigh seas. In this strait. issue would arise. In connect. ion with the Swedish dececision ' to ex- d her territorial sea to 12 miles i.n 19799, thzs tion was discussed between Denmarkr an d SSweden, d rder to maintain the possibilit i y o ffreedom f d igation in these areas, it wass agreeagre d ththat, t, ex- of territorial sea should not exceexcee d 1'a limit, f 3 ' 1e s f r om the medi an 1 inc bet.ween the two coun- In this way, a high seas route would remain th Kattegat and, based on the agreement between pas,sage thx'ough these water s on freedom of navigation on the high seas, as befor The Straits issue for Denmark has always been closely related to the narrow pass-waysbetween the Danish mainland Jutland! and her major islands. The straits are Littl,e Belt, Great Belt, andthe Sound. Zn the past muchhas beensaid andwritten aboutthe legal regimefor passagethrough these straits and, as professor Vitzthum very rightly states, it has beengenerally acknowledgedthat the CopenhagenCon- vention of 1857forms the basis for the regimeof passagethrough these straits. Nevertheless,he makesin his statementa verygreat effort to chal- lengethe previousinterpretation, and he reaches-- as I understand--theconclusion that the Copenhagen Conventiondoes not governlex lata the passage throughthe Danishstraits. I think it will comeas nosurprise to anybodythat I donot agree with this conclusion. It is not possiblefor menow to commentonall aspectsof thevery extensive study made byProfessor Vitzthum;the best I cando, I think,is to explain how1857I Convention view the regime.wasto abolishThe main theobjective previous ofgoverning the regimeon the basis of whichthe Danish Government claimedcarryingthecargoes right throughto levythethe straits. "Sound Dues"In addition for shipsto thisessentia.l provision, the text of theConvention states in Article 1: Novessel shall henceforth, under any pretext, subject,in its passageof the Sound or Belts, to anydetention or hindrance. -99 Tp p I 'Tl, , wJ ~ 7 In my opinion no reasonable doubt can be raised against the fact that this formulation is pression of a regime of passage through the straj Many viewpoints as to the exact meaning of paragraph have been expressed during the more than 100 year s s ince the Convent ion came into f orce . major question has been whether it covers merchant vessels and warships as well. On this point, I do not need to go into any detail, as it has been fully covered by Professor Vitzthum, and I am in agreement with his analysis that it is clear from the preamble and the whole purpose of the Convention that i t does not cover warships. The passage of warships is regs lated by the general international rule of innocent passage through international straits. The right of innocent passage for warships has been questioned from different sides. It is, how- ever, indubitable--at least after the decision hy the International Court of Justice in 1949 in the "Corfu Channel Case"--that such a right of innocent passage through international straits exists. This right also exists in the Danish straits, and it is now ex- pressly mentioned in the Royal Ordinance of February 1976, which regulates foreign warships' access to Danish waters. It is generally accepted that the Copenhagen Convention is applicable only to commercial vessels; and during the many years the Convention has been in force, a special regime serving the interests of the coastal States and the user States as well has devel- oped. Generally, it can be said today that the exist- ing regime follows the general rule of international law on innocent passage through straits as it is cod- ified in the 19'S8 Geneva Convention. From the fact that the rules of passage are now analogous to customary international law, you cannot. conclude that the regimes are identical. In this re- lation, I think it suffices to stress the fundamental difference in the legal basis of the regimes. An «- ample will show this difference. Should it in some future be an accepted part. of the concept of "innocent passage" in general international law that strait States could levy taxes or other charges upon»ips ~" passage, such a rule would not automatically affect the regime of passage through the Danish straits- THE BAL,TIC STRAITS yy conclusion will therefore be that in the Dan- straits, a special regime of passage adapted to ] oza 1 condit ions has been developed over the years, on the Copenhagen Convention of 1857, interna- customary law, and national regulation. Concerning the negotiations on the straits is- it is a well known fact that public information of the work done at the Law of the Sea Conference is rather limited. On the other hand, it is common knowledge that the st.rait problems have been among key issues at the Conference and that some in- formation is available on them. On several occasions the Danish delegation has raised these problems in public meetings of which summary records are kept; the latest, one was during the Plenary Meeting at the just concluded Ninth Session in Geneva. The main reason why the strait issue has been of such importance at the Conference is the right of coastal States to extend their territorial seas up to l2 miles. The majority of States at the Conference have supported the view that a reasonable regime of passage should be found with regard to those straits, so that there would still be a high seas route, even if the extension of territorial sea limits up to 12 miles wo~ld place them under national jurisdiction.
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