The Challenge of Definitions
The challenge of definitions in international law is not particular to straits. Indeed, agreeing definitions in international treaty negotiations are carefully measured and sometimes contested affairs. Allocating meanings when we examine straits mirrors a larger struggle over the meaning and legacy of straits in a world of emerging users and uses of the seas.
The 1958 United Nations Convention on the Territorial Sea and the Contiguous Zone codified the regime regarding straits that are used for international navigation within the concept of innocent passage but did not define straits.
The International Court of Justice in the Corfu Channel Case[1] examined the legality of navigation in straits and in noting its satisfaction that the Corfu Channel is a strait used for international navigation further stated that the passage of warships in this case was innocent but did not define straits.
The spatial determination of rights in the law of the sea and respect for territorial sovereignty informs an inquiry into how and where a state may assert certain rights.
Towards Functionality
The 1982 Law of the Sea Convention (UNCLOS), codified the concept of transit passage as the freedom to navigate an international strait from one part of the high seas or exclusive economic zone (EEZ) to another part of the high seas or EEZ. As well as listing activities that do not constitute innocent passage,[2] UNCLOS contains provisions for different kinds of straits and the relevant regimes applicable therein.
A case specific method of analysis is key in examining straits.
Case Specificity
Straits can be subject to their own treaty usually between the relevant littoral states with additional provisions clarifying the scope of the treaty’s application. For instance, the 1936 Montreux Convention which predates UNCLOS regulates transit through the Straits of the Dardanelles, the Sea of Marmara and the Bosporus. The treaty using “the general term “straits,”[3] limited its scope to its signatories.
The 1985 Torres Strait Treaty which postdates UNCLOS regulates transit through the 150km wide strait situated in the Coral Sea between Southern Papua New Guinea and North Eastern Australia.[4] Australia and Papua New Guinea in negotiating the treaty were keen to clarify the sovereignty of the islands in the strait area and delineate their respective maritime boundaries.This treaty uniquely established a protected zone to “acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement.”
However, where global trade is involved, disruptions to traffic through a strait can have consequences that transcend the littoral states’ interests and impact a wider group of stakeholders.
A “Strait-Plus” Approach?
As the matter of legal status and sovereign limits is provided in UNCLOS, there is some purchase to a management approach that includes relevant players such as flag states, non-state actors such as stakeholders and the shipping industry in agreeing mechanisms towards effective and safe transit passage. This approach lends itself to better co-operation and can move with the times to address emerging issues in the realm of maritime security and the protection and preservation of the marine environment.
This approach was applied to the strategically important straits of Malacca and Singapore where a quarter of the world’s commerce and half the world’s oil traverse.[5] The littoral states bordering the straits (Indonesia, Malaysia and Singapore) agreed a Cooperative Mechanism in accordance with Article 43 of UNCLOS to cooperate in the “establishment and maintenance of necessary navigational and safety aids and for the prevention, reduction and control of pollution from ships.”[6]
Debate over transit passage rights is for naught when traversing a strait is unsafe or detrimental to the marine environment.
Finally, it is possible to seek meaning and grounding yet be open to interaction and debate. Here, the progressive development of the law of the sea could evolve beyond definitions. The challenge becomes establishing and incorporating into future agreements the sharing of the financial burden of management between relevant states and non-state actors towards safe and beneficial transit.
[1] Corfu Channel Case, (United Kingdom/ Albania) Judgement, I.C.J. Reports 1949.p. 4. Indeed, the Court held that passage of warships in peace time is not subject to prior authorisation.
[2] Article 19(2) of UNCLOS.
[3] https://treaties.un.org/doc/Publication/UNTS/LON/Volume%20173/v173.pdf No. 4015. The official text in French notes likewise “…compris sous la denomination générale de < Détriots >…”
[4] See the International Hydrographic Organisation (IHO) Draft 4th Edition of the Limits of Oceans and Seas. https://www.iho.int/mtg_docs/com_wg/S-23WG/S-23WG_Misc/Draft_2002/Draft_2002.htm. The author cites this working copy document because the previous edition does not specifically define the limits of the Torres strait. See further:
· Stuart B Kaye. (1997). “The Torres Strait”. In International Straits of the World, Dordrecht: Martinus Nijhoff.
· K.W. Ryan & M.W.D. White (1981) “The Torres Strait Treaty,” Australian Yearbook of International Law, 7:87 et al.
[5] UNCTAD Part II: An Overview of the International Legal Framework and of Multilateral Cooperation to Combat Piracy. Studies in Transport Law and Policy – 2014 No. 2 https://unctad.org/en/PublicationsLibrary/dtltlb2013d3_en.pdf
[6] See further:
Ho, Joshua H. (2009) 'Enhancing Safety, Security, and Environmental Protection of the Straits of Malacca and Singapore: The Cooperative Mechanism’, Ocean Development & International Law,40:2,233 — 247.
Beckman, R., & Sun, Z. (2017). "The Cooperative Mechanism for the Straits of Malacca and Singapore". In The Cooperative Mechanism for the Straits of Malacca and Singapore. Leiden, The Netherlands: Martinus Nijhoff.