Rights and Responsibilities of Strait States

chapter 2 Rights and Responsibilities of Strait States

Jon M. Van Dyke*

1 Types of Straits1

The 1982 United Nations Law of the Sea Convention2 recognizes at least four distinct types of international straits:

1 Article 37 Straits, “which are 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.” 2 Article 35(c) Straits “in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits.” A definitive list of such straits does not exist, but most com- mentators agree that the Baltic or Danish Straits, the Turkish Straits, and the Strait of Magellan are included in this category, and some add the Äland Strait to this list. These straits are governed by the applicable trea- ties, some of which are quite venerable, and thus have their own unique regimes that govern passage. 3 Article 38(1) Straits, where the right of transit passage does not apply “if the strait is formed by an island of a State bordering the strait and its mainland” and “if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.” This provision is generally referred to as the Messina Strait Clause, “because it emerged from proposals put forward by Italy with implicit reference to the strait which separates the island of Sicily from the mainland.”3 It is

* William S. Richardson School of Law University of Hawai’i at Manoa, [email protected]. 1 Some of the material in this paper is adapted and updated from Jon M. Van Dyke, “Transit Passage Through International Straits,” in Aldo Chircop, Ted L. Mcdorman & Susan J. Rolston eds., The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston, (2009) 177–232. 2 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3 reprinted in 21 I.L.M. 1261 (1982). 3 Tullio Scovazzi, “Management Regimes and Responsibility forInternational Straits,” in Hamzah bin Ahmad ed., The Straits Of Malacca: International Co-Operation In Trade, Funding

unclear what straits it applies to, but two examples mentioned frequently are the Pemba and Zanzibar Channels separating the mainland of Tanzania from the offshore islands of Pemba and Zanzibar. Lewis M. Alexander has listed 22 straits that fit the Article 38(1) exception, six of which are in Canada, and three of which are in Japan.4 China has taken the position that the Qiongzhou Strait between Leizhou Peninsula and Hainan Island is an Article 38(1) strait, and China’s straight baselines claim in its 1958 territorial sea declaration classified the waters in this strait as internal waters.5 Some Korean scholars have argued that the Cheju Strait—which separates the Korean mainland from Cheju Island to the south—is an Article 38(1) strait, but Japan argues that the route around Cheju Island is not “of similar convenience” and thus challenges this claim.6 4 Article 45(1)(b) Straits, which connect a part of the high seas or an eez and the territorial sea of a foreign state, such as the Strait of Tiran linking the Red Sea to the port of Aqaba in Israel and the entrance to Passamaquoddy Bay separating the United States and Canada.7

& Navigational Safety, Maritime Institute of Malaysia, Kuala Lumpur (Pelanduk Publications, 1997) 338. Professor Scovazzi has said that Article 38(1) will apply to the Strait of Messina “should it be demonstrated that there exists seaward of Sicily a route of similar convenience with respect to navigational and hydrographical characteristics. Ibid., 350. The United States appears to have accepted that the “regime of non-suspendable innocent passage” applies to the Strait of Messina. Ibid., 351 (quoting from U.S. Dept. of State, Limits in the Seas, No. 112, 68). 4 Lewis M. Alexander, Navigational Restrictions Within the New LOS Context—Geographical Implications for the United States 159(Peace Dale, Rhode Island: Offshore Consultants, 1986). 5 Hyun-Soo Kim, “Legal Status of the Cheju Strait,” in Bayram Ozturk & Resat Ozkan eds., The Proceedings of the Symposium on the Straits Used for International Navigation (Turkish Marine Research Foundation, Istanbul, Nov. 16–17, 2002) 31, 33. The Qiongzhou Strait is about 50 miles long, and ranges from 9.8 to 19 miles wide, and is an important shipping route connect- ing the South China Sea to the Gulf of Tonkin. In 1964, China issued regulations excluding foreign warships from this strait and regulating the passage of foreign commercial vessels in this waterway. Professor Alexander apparently accepted China’s claim as legitimate. See his Table 14-E in Alexander, Navigational Restrictions Within the New LOS Context—Geographical Implications for the United States, 207. 6 Hyun-Soo Kim, “Legal Status of the Cheju Strait,” 33. 7 Article 45—Innocent Passage 1. The regime of innocent passage, in accordance with Part II, section 3 shall apply in straits used for international navigation: