Clarifying freedom of navigation through straits used for international navigation: A study on the major straits in Asia (original) (raw)
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International Straits and Right of Innocent Passage
Since the ancient times the importance of straits have played a major role in the international arena. No one can deny the importance of the Dardanelles1, the Bosphorus2 or Gibraltar3. It has even been a cause to many wars and conflicts. Moreover with the growing importance of military and economic interests of the coastal states and the increase in sea transport, the straits are becoming increasingly a subject of discussion between the countries and the international law. After the Geneva Conventions on the Law of Sea (1958), the United Nations Conventions on the Law of Sea (UNCLOS) in 1982 undertook the task and all the questions on the marine law which were pending, were finally analysed and discussed in the international arena by the countries. The subject of straits is one of the factors affecting the seas and is one of the reasons why UNCLOS is facing difficulties. Still, there isn’t any exact definition of the expression “straits used for international navigation” in the Convention of 1982 but it is important to make the distinction between “straits” and “straits used for international navigation” and in this paper I will explain the “straits used for international navigation” by using different case studies.
Free Transit in Territorial Straits: Jursidiction on an Even Keel?
California Western international law journal, 1973
In 1974 the coastal and maritime nations of the world will confront each other at the United Nations Law of the Sea Conference in Santiago, Chile in an attempt to define a treaty-based, uniform territorial sea width. One problem the conference will attempt to alleviate is the jurisdictional disputes regarding territorial seas and transit through them which have been rising proportionately with man's ability to use the oceans. The United States has persistently challenged extensions of territorial sea limits beyond three miles, while many nations share the view that their national frontiers should extend to no less than twelve miles. Augmentation of territorial jurisdiction by an additional nine nautical miles would overlap 116 international straits which contain high seas under a three-mile rule.' One hundred-twenty 2 sovereign States overlook the seas adjacent to 200,000 miles of coastline, 3 and their national claims to maritime jurisdiction range from three to 200 miles. 4 An example is the Bering Strait, which is nineteen nautical miles wide; 5 if the United States were to claim a twelvemile limit, as does the Soviet Union, 6 another vital transit link would be closed to free and unimpeded navigation. The 1958 Geneva Convention on the Territorial Sea is the most recent attempt to codify the sovereign right of coastal States to regulate surface navigation in territorial straits. The Convention adopted a definition of "innocent passage" which provided that transit through territorial waters is innocent so long as it is "not prejudicial to the peace, good order or security of the 5. SOVEREIGNTY OF THE SEA, supra note 3, at 23. 6. NAT'L CLAIMS, supra note 4, at 104.
Ocean Development and International Law, 2021
Article 234 of UNCLOS is in many ways exceptional, but it is not unique in the sense that it grants to the coastal state "complete" legislative power. Arguably, "complete" coastal state jurisdiction exists in the territorial sea for the purposes enumerated in Article 21(1), allowing coastal states to adopt ship reporting systems, pilotage, and other routing measures unilaterally. The analysis of state practice reveals that states often decide to engage the International Maritime Organization (IMO) in different ways, even when such a course of action is not mandatory. This article advocates for meaningful deliberation as both a suitable method of meeting Article 234's due regard standard, and a practice that can be expected from a steward.
Innocent Passage in the Territorial Sea within the Framework of the Law of the Sea Convention
KMI International Journal of Maritime Affairs and Fisheries, 2018
From its early stage of development, the 'right of navigation' was recognised as one of the key components of the principle of freedom on the high seas, which for centuries dominated the international law of the sea. Howbeit, because of the progressive seaward expansion of the coastal States authority, a reconciliation between such a right and the sovereignty of States in their territorial waters soon became necessary. Innocent passage of foreign vessels in the territorial sea is, therefore, an outstanding example of compromise between the territorial sovereignty of coastal States and the right of any vessel to freely navigate across the oceans. Indeed, all ships enjoy the right to traverse the territorial sea of another State as long as they comply with a number of legal and technical conditions, most of which are set out in the framework of the United Nations Law of the Sea Convention (LOSC). This article aims at offering an overarching examination of the body of rules governing innocent passage in the territorial sea in order to identify strengths and shortcomings of the existing legal framework.
The United Nations Convention on the Law of the Sea 1982 (LOSC) prescribes the application of the transit passage regime for vessels navigating via straits that connect one part of the high seas/exclusive economic zone (EEZ) to another part of the high seas/ EEZ. The Straits of Malacca and Singapore fulfill this criterion if they are considered as one strait. Nevertheless, if both straits are considered as separate, then the situation would be different. This article discusses the types of navigational regimes in straits as prescribed by the LOSC and ventures into the potential legal and political implications that may arise should transit passage regime cease to apply in critical straits like the Straits of Malacca and Singapore. Indeed, the Straits of Malacca and Singapore are important sea lines of communication, and any interference with shipping would obviously disrupt the well-being of the global economy, particularly that of the Asia-Pacific region.
The United Nations Convention on the Law of the Sea 1982 (LOSC) prescribes that ships and aircrafts may exercise the unimpeded right of transit passage when navigating or flying over straits used for international navigation. The Straits of Malacca and Singapore are largely categorised as straits that fall under this category. Consistently described as two of the most critical chokepoints in the world, the Straits of Malacca and Singapore are accommodating increasing navigational traffic each year. This has caused difficulties to the littoral States in balancing heavy shipping activities with the protection of the marine environment of these critical straits. This article hence analyse the legal and political implications should the littoral States of the Strait of Malacca, namely Malaysia and Indonesia retract their 12 nautical miles territorial sea claim in the Strait of Malacca to 3 nautical miles, leaving exclusive economic zone (EEZ) or high seas corridor spanning across the Strait, nullifying the application of transit passage regime. At the moment, Japan and South Korea have decided not to extend their territorial claims over the Korea Strait from 3 nautical miles to 12 nautical miles territorial sea limit. As such, this article conducts a specific case study by looking at the arising circumstances should Malaysia and Indonesia follow the Korea Strait approach. This article concludes on whether or not this proposed measure may a viable method to increase the regulatory powers of the littoral States in regulating shipping through the Strait of Malacca.
Navigational Rights in the South China Sea
This memorandum is prepared in order to provide legal advice to the Member States of the ASEAN Community on the Navigational Rights in the South China Sea Dispute. The paper starts with the brief facts, explaining the situation in the South China Sea, followed by the issues raised in this respect where the brief answers can also be found. Finally, the paper focuses on slightly broad discussion of those brief answers with the concluding remarks at the end.
SECURITY MANAGEMENT IN THE STRAITS OF MALACCA; COOPERATION AND THE CENTRALITY OF LITTORAL STATES
Malacca Strait, a waterway located in South East Asia between the Malay Peninsula and the island of Sumatra, is undoubtedly one of the most important strait in the world with more than one third of world’s goods transported through it. The traffic of international vessels in the strait is also larger compared to the well known Panama Canal in Central America and Suez Canal in Egypt. The security of Malacca Strait, therefore, is of a great importance for the world economy and for almost all the countries in the world. Nevertheless, various types of threats exist in the Malacca Strait. With huge traffic of vessels, the strait is an interesting field for pirates. The number of piracy in the strait reached a level that was so high compared to other waterways in the world that the strait was once categorized as an area with the risk of a war zone. The lack of capacity of the littoral states to secure the strait coupled with their unwillingness to share the burden of patrolling the straits with other countries due to the issue of sovereignty are frequently mentioned as the main cause of the problem. Indonesia and Malaysia are very firm in their position to reject foreign military’s presence in the strait, while Singapore advocates it due to its lack of trust in the two countries’ capacity. Instead of a direct involvement, Indonesia and Malaysia urge more contribution in the form of aids and capacity building from the user states. The two countries think that the user states frequently hide behind the status of the Strait as the strait used for international navigation under the United Nations Convention on the Law of the SEA (UNCLOS), which implicates that the littoral states could not oblige the vessels that pass through the strait to pay some fees to maintain the security in the strait since they have the right of transit passage in such strait. The geographical topology of the strait poses a different kind of challenge. The climate and water current in the strait is unpredicted, strong wind and rain that could come up anytime frequently endanger the safety of navigation in the strait. Some parts of the strait are very narrow and shallow, causing some accidents such as collision, grounding, and foundering to happen. These accidents have ecological consequences, mainly related to oil spills, and endanger the ecosystem and economic resources of the coastal communities. Although different countries have different perspectives on the approach that should be taken, all shares the similarity of perspective that the Strait of Malacca is of a great importance and the question of security management in the strait should be solved. In line with this, various approaches in various levels were taken by the littoral and user states. This writing will explain the geographical topology of the strait, its status under international law, and its strategic importance to gain a deeper understanding about the strait as the object of the discourse. After that, it will discuss more about the security threats and challenges in the straits and the approaches taken by countries to resolve these challenges and their effectiveness. The approaches would be categorized into three levels: unilateral, trilateral, and multilateral level.
Lakmal Deegalla, 2023
UNCLOS III , clearly emphasizes the rules of determination of maritime zones inter alia Breadth of territorial sea (BTS). The convention was signed and ratified by 168 states and 14 states have only signed it not ratified . However, there are 15 UN member and observer states that have not signed or acceded to the convention or agreement . On this basis, this academic paper examines the different practices of non-member and member states in determining the breadth of the territorial sea. It should be noted that prior to UNCLOS III, some state practices of declaring the BTS were transferred to the universally accepted accretion point of 12 nautical miles. On the other hand, some states are still making their own claims contrary to UNCLOS III. According to the above explanation, it is an academic necessary to examine the following characteristics in accordance with international law (IL) in order to determine BTS. 1. How to develop the doctrine of BTS. 2. Scope of BTS under UNCLOS III 3. Practices of various states before UNCLOS III on the determination of the BTS. 4. Legitimacy of claiming more than 12 nautical miles for BTS. 5. Contemporary Issues and suggestion