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The Proceedings of the Symposium on the Straits Used for International Navigation

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The Proceedings of the Symposium on the Straits Used for International Navigation THE PROCEEDINGS OF THE SYMPOSIUM ON THE STRAITS USED FOR INTERNATIONAL NAVIGATION 16 – 17 NOVEMBER 2002 ATAKÖY MARINA ISTANBUL – TURKEY Edited by Bayram ÖZTÜRK and Reşat ÖZKAN All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means without the prior permission from the Turkish Marine Research Foundation ( TÜDAV ) . The findings, interpretations, and conclusions expressed in this publication are entirely those of authors and should not be attributed in any manner to the Turkish Marine Research Foundation ( TÜDAV ) . Texts are as originally submitted. Citation: ÖZTÜRK, B. and ÖZKAN, R. ( Eds.), 2002. " The Proceedings of the Symposium on the Straits used for International Navigation" Turkish Marine Research Foundation, Istanbul, TURKEY, 2002. Publication Number: 11 Copyright: Türk Deniz Araştırmaları Vakfı (Turkish Marine Research Foundation). ISBN – 975 – 97134 – 8 – 4 Available from: Türk Deniz Araştırmaları Vakfı – Turkish Marine Research Foundation ( TÜDAV ) P. O. Box 10 Beykoz / ISTANBUL – TURKEY Tel: + 90 216 424 07 72 Fax: + 90 216 424 07 71 Web: www.tudav.org e – mail: [email protected] Printed by: Ofis Matbaa Tel: + 90 212 288 28 21 To the memory of Captain Gündüz Aybay and Prof.Dr. Reşat Özkan, who dedicated their lives to the Turkish Straits ... CONTENTS Page PREFACE I THE LEGAL REGIMES OF THE STRAITS Legal Regime for Straits used for International Navigation Nandan, S. N. 1 The Legal Regime of the Danish Straits Somers, E. 12 The Legal Regime of the Straits around Great Britain Anderson, D. 20 Legal Status of the Cheju Strait Kim, H. S. 31 International Legal Aspects of Navigation in the Kerchensky Strait Skaridov, A. 42 The Strait of Hormuz Franckx, E., Razavi, A. 53 The Strait of Otranto Vio, I. 62 The Legal Regime governing the Gibraltar Straits Van Dyke, J. 72 The Security and the Legal Aspects of the Turkish Straits Caşin, M. H. 86 SAFETY AND NAVIGATION THROUGH THE STRAITS Safety and Navigation in Narrow Straits İstikbal, C. 102 VTS and Its Applications – What Type of VTS for Turkish Straits ? Ustaoğlu, S. , Poyraz, Ö. 116 Investigation of Maritime Accidents in the Istanbul Strait via Logistic Regression and Simulation Gören, G. E., Or, İ. 126 ENVIRONMENTAL ISSUES OF THE STRAITS The Problem of Petroleum Transport in Turkish Straits Güven, K. C. 147 Is Istanbul Ready for an Oil Pollution Control and Oil Spills ? Kemerli, M. K. 157 Environmental Protection and Maritime Safety in the Danish Straits Lagoni, R. 159 Fishing Activities in the Istanbul Strait Öztürk, A. A., Karakulak, S., Öztürk, B. 174 PREFACE Turkish Marine Research Foundation (TÜDAV) organized the third international symposium on the seas, “The Symposium on the Straits used for International Navigation” in Ataköy Marina, Istanbul, on 16 - 17 November 2002. When we organized the International Symposium on the Regional Seas in Istanbul in 2001, we realized that a meeting, specifically for the international straits, would be useful to understand the problems of the straits, particularly for the Turkish Straits, which are the narrowest ones in the world. The aim of the symposium is, first of all, to exchange information between scientists, experts, and decision makers from various countries, because the international straits are vitally important for the world in terms of shipping industry and cargo, protection of marine environment, and national or regional security. Turkey has rights and responsibilities for the safe passage through the Turkish Straits. When the Montreaux Convention was signed in 1936, the number of passing vessels was only 4,500 yearly in the Istanbul Strait, but now this number is around 50,000. The increasing number of ships passing through the Strait brings severe incidents and serious threats to the city of Istanbul, which is one of the oldest and the most crowded cities in the world, with a population of around 15 millions. Surely, there are other straits around the world, which are also narrow, under the threat of the heavy shipping traffic. Therefore, as an NGO, we are happy to serve as a facilitator for this meeting of respected scientists and experts. We hope that this symposium can shed some light to new approaches to solve the problems of the international straits from legal, political, environmental, and military aspects. We thank the following organizations for their kind support: Ataköy Marina and Chevron. Special thanks are also to Mr. Sedat Altunay of Ataköy Marina, Dr. İsmail Kafesçioğlu of Chevron, and Prof. Erik Franckx from Center for International Law of the Vrije University in Belgium for their support, Mr. Ahmet S. Cavus for the secretary of this meeting, and Miss. Didem Göktürk (M.Sc.) for helping the editing of this volume. Prof. Dr. Bayram ÖZTÜRK Prof. Dr. Reşat ÖZKAN Turkish Marine Research Foundation ( TÜDAV ) I Proc. of the Symposium on the Straits used for International Navigation, 16 -17 Nov. 2002, Istanbul – Turkey LEGAL REGIME FOR STRAITS USED FOR INTERNATIONAL NAVIGATION Satya N. NANDAN * Secretary – General, International Seabed Authority The Regime for Straits used for International Navigation was one of the most contentious issues before the Third United Nations Conference on the Law of the Sea. A successful outcome on this issue was key to the success of the Conference. Accordingly, maintenance of a regime of unimpeded passage through such straits formed a critical component of the overall ―package‖ of the 1982 UN Convention on the Law of the Sea. The introduction of the new concept of the right of ―transit passage‖ through straits used for international navigation, made it possible for the Conference to reach agreement on twelve nautical miles as the maximum breadth of the territorial sea and on the provisions concerning the exclusive economic zone. The right of passage through straits has been of international concern at every conference on the law of the sea. The Preparatory Committee for the 1930 Hague Conference for the Codification of International Law addressed the subject of straits only in the context of the delimitation of the territorial sea within straits. It did not consider navigation through straits consisting entirely of the territorial sea of one or more coastal States as an issue distinct from the subject of innocent passage of foreign ships through the territorial sea generally.1 The 1930 Conference was, however, unsuccessful. It was unable to agree on the breadth of the territorial sea or on the exercise of special jurisdiction in a zone contiguous to the territorial sea. With regard to the subject of navigation through straits, the most significant aspect of the work of the Second Committee of the Conference was the provision entitled, "Passage of War Ships Through Straits", which read: Under no pretext whatever may the passage even of warships through straits used for international navigation between two parts of the high sea be interfered with. * Secretary-General, International Seabed Authority, formerly Special Representative of the UN Secretary- General for the Law of the Sea and leader of the Fiji Delegation to the Third United Nations Conference on the Law of the Sea. 1 OBSERVATIONS According to the previous Article the waters of straits which do not form part of the high sea constitute territorial sea. It is essential to ensure in all circumstances the passage of merchant vessels and warships through straits between two parts of the high sea and forming ordinary routes of international navigation.2 The next significant development relating to straits used for international navigation is to be found in the decision of the International Court of Justice (ICJ) in the Corfu Channel Case in 1949. In this case between the United Kingdom and Albania the ICJ laid two important principles regarding navigation through straits used for international navigation.3 In reference to Albania's contention that the United Kingdom had violated Albanian sovereignty by sending warships through the North Corfu Strait without prior authorization, the Court noted: It is, in the opinion of the Court, generally recognized and in saccordance with international custom 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 authorization of a coastal State, provided that the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace.4 Addressing Albania's contention that the North Corfu Channel was only of secondary importance and was used almost exclusively for local traffic, the Court made a statement of principle regarding the functional criterion. It wrote: It may be asked whether the test is to be found in the volume of traffic passing through the Strait or in its greater or lesser importance for international navigation. But in the opinion of the Court the decisive criterion is rather its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation. Nor can it be decisive that this Strait is not a necessary route between two parts of the high seas, but only an alternative passage between the Aegean and the Adriatic Seas. It has nevertheless been a useful route for international maritime traffic.5 Drawing upon the decision of the ICJ in the Corfu Channel Case, in its draft articles on the law of the sea prepared in 1956, the International Law Commission (ILC) adopted as article 17, paragraph 4, the following text: 2 4. There must be no suspension of the innocent passage of foreign ships through straits normally used for international navigation between two parts of the high seas.6 At the First United Nations Conference (UNCLOS I), negotiations on the regime of the territorial sea centered on the issue of a maximum breadth of three nautical miles measured from the baselines.
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