Speaker: Associate Professor Mary George, Faculty of Law and Institute of Ocean and Earth Sciences, University of Malaya

1. A Review of the Passage Regimes in Straits Used for
International Navigation under the 1982 LOSC:
Implications for Navies
Mary George
The Institute of Ocean and Earth Sciences and the Faculty of Law
University of Malaya
The Fourth Indian Ocean Naval Symposium 2014
Protecting the Ability to Trade in the Indian Ocean Maritime Economy
Panel on Challenges: Navigation Issues in International Straits
Crown Metropol Perth, Western Australia
25-27 March 2014

2. Abstract
This paper reviews the challenges faced in the regime of
straits used for international navigation before and after the
adoption of the 1982 Law of the Sea Convention with
several implications for the traditional roles of the navy. In
particular, it argues that navies should play a more active
role in non-traditional civilian uses of the oceans such as
conducting baseline studies for environmental protection
and resource conservation.

3. Table of Contents
1. Introduction
2. Review of straits and passage regimes before the
adoption of the 1982 LOSC
3. Six straits and three passage regimes under 1982
LOSC
4. Way Forward and Conclusions

4. Introduction
• Decisions of the Permanent Court of International Justice
(PCIJ)
• Decisions of the International Court of Justice (ICJ)
• The four 1958 Geneva Conventions on the Territorial Sea
and the Contiguous Zone, the Continental Shelf, Fishing and
conservation of Resources and the High Seas
• Current challenges to transit passage and strait States
obligations towards the marine environment in straits used
for international navigation in Part III, 1982 LOSC
• Way forward - naval assistance in non-traditional roles such
as the protection and conservation of the marine
environment

5. PCIJ and ICJ case law before 1982 LOSC
• The SS Wimbledon Case (1921)
• The SS Lotus Case (1926)
• The I’m Alone Case (1929)
• The Corfu Channel Case (1949)

6. The SS Wimbledon Case (1921) [PCIJ]
• Article 380 of the Treaty of Versailles, Kiel Canal:
– Ceased to be internal and national navigable waterway but
international waterway for the benefit of all nations; and
– Must be open to all nations without making any distinction
between war vessels and vessels of commerce, as long as these
vessels belonged to nations at peace with Germany.
• Examined provisions relevant to the Convention on the Suez and
Panama Canals as regard the right of free passage and found that:
– When an artificial waterway connecting two open seas has been
permanently dedicated to the use of the whole world, such
waterway is assimilated to natural straits; and
– Even the passage of belligerent men-of-war does not
compromise the neutrality of the sovereign State under whose
jurisdiction the waters in question lie.

7. The SS Lotus Case (1926) [PCIJ]
• Found that Turkish jurisdiction was justifiable not
because of the nationality of the victims but the effects
of the offence were produced on a Turkish ship.
• Consequently in a place “assimilated to Turkish territory
in which the application of Turkish criminal law cannot be
challenged.”
• Once admitted that the effects of the offence were
produced on the Turkish vessel, it became impossible to
hold that there was a rule of international law that
prohibited Turkey from prosecuting the French officer
simply because the author of the offence was on board
the French ship.

8. The I’m Alone Case (1929) [PCIJ]
• Issues:
– (i) Whether the Government of the United States under
the convention had the right of hot pursuit where the
offending vessels were within an hour’s sailing distance of
the shore at the commencement of hot pursuit and
beyond that distance at its termination; and
– (ii) Whether it was justified in sinking that vessel?
• Both States agreed that the initial position of the I’m
Alone was beyond the three-mile limit of US territorial
waters as stated in the Convention.

9. The I’m Alone Case (1929) [PCIJ]
• Held:
– Use of force for the purposes of the Convention was
acceptable and included the accidental sinking of the
vessel
– Deliberate sinking was neither justified by the Convention
nor any principle of international law
• Recommended that the US acknowledge this illegality
and apologise to His Majesty’s Canadian Government
and pay $25,000

10. The Corfu Channel Case (1949) [ICJ]
• Held:
1. By 11 to 5: Albania was responsible under international law for
the explosions and for the damage and loss of human life that
resulted therefrom;
2. By 10 to 6: the assessment of the amount of compensation
was reserved for further consideration;
3. By 14 to 2: the United Kingdom had not violated Albania’s
sovereignty by sending the warships through the strait without
the prior authorisation of the Albanian Government; and
4. Unanimously (with the concurring vote of the British judge,
McNair): the minesweeping operation had violated the
sovereignty of Albania.

11. UNCLOS I AND II Responses
• States continued to debate over the breadth and
challenges to navigation in territorial seas and straits
used for international navigation.
• An official breadth for the territorial sea was not
adopted at UNCLOS I in 1957 or even at UNCLOS II in
1960.
• The concept of the territorial sea and contiguous
zone were officially adopted/expressed in the 1958
Geneva Convention on the Territorial Sea and
Contiguous Zone.

12. UNCLOS I AND II Responses
• 1958 Geneva Convention on the Territorial Sea and
Contiguous Zone, Article 16(4):
– “There shall be no suspension of the innocent passage of
foreign ships through straits which are used for
international navigation between one part of the high seas
and another part of the high seas or the territorial sea of a
foreign State.”

13. • Straits Used for International Navigation
– Categories of straits
Part III of the 1982 LOSC recognises six different categories of
straits. By using a combination of geographical criteria such as
high seas, Exclusive Economic Zones (‘EEZs’), territorial
seas, islands and legal criteria such as the use of straight
baseline method, the 1982 LOSC has established six types of
straits.
– Geographical scope
– Material scope
– Temporal scope
Six Straits and Three Passage Regimes, Part III LOSC

14. Categories of Straits
Figure 1. Source: Taken from S. N. Nandan and D. H. Anderson, “Straits
Used for International: A Commentary on Part III of the United
Nations Convention on the Law of the Sea 1982” (1989), 60 British
Yearbook of International Law at 159, 199-204.
Six Straits and Three Passage Regimes, Part III LOSC

15. Categories of Straits
Figure 2. Source: Taken from S. N. Nandan and D. H. Anderson, “Straits
Used for International: A Commentary on Part III of the United
Nations Convention on the Law of the Sea 1982” (1989), 60 British
Yearbook of International Law at 159, 199-204.
Six Straits and Three Passage Regimes, Part III LOSC

16. Challenges in Transit Passage
Rights and duties of user States
vs.
Rights, duties, jurisdiction and
discretion of strait States
for the protection and preservation of the marine
environment

17. Rights and Duties of User States
Challenges in Rights and Duties of User States in
Exercise of Transit Passage
• Contiguous zone rights and tolls
• Hostile intent under Articles 39 and 301, 1982 LOSC;
Article 39(1) (c ) San Remo Manual
• Use of force: M/V Saiga 2
• Signals
• Hot pursuit: lessons from the I’m Alone, M/V Saiga 1
and 2

18. • Freedom of Navigation
– Transit passage and rights and duties of user and strait
States
– Transit passage and innocent passage
– Use of force and peaceful purposes
– Naval policies, immunity of warships and other naval
vessels, aircraft transit, archipelagic sea lanes passage and
pollution enforcement
– Passage of warships
Rights and Duties of User States

19. • Freedom of Navigation (cont’d)
– Transit passage and international air law
– Archipelagic sea lanes passage
– Differences between transit passage, innocent passage
and archipelagic sea lanes passage and a general duty to
protect the marine environment
– Customary international law and transit passage
Rights and Duties of User States

20. • Implications of Part III of the 1982 LOSC
– Knowledge of a strait State
– Discrimination, safety of navigation, self-defence,
punishment, tolls, contiguous zone jurisdiction and neutral
ships
– Safety of Navigation
• Articles 41 to 44 of the 1982 LOSC
Rights, Duties, Jurisdiction and Discretion of Strait States

21. Rights, Duties, Jurisdiction and Discretion of Strait States
Protection and Preservation of the
Marine Environment
Naval cooperation for the conduct of baseline
studies for the protection and conservation of the
marine environment and its resources.

22. Rights, Duties, Jurisdiction and Discretion of Strait States
• Protection and preservation of the marine
environment
– Weaknesses of the marine pollution enforcement regime
– Weaknesses of Article 233
– Weaknesses of the Interpretative Statement on Article 233
– Scovazzi’s view
– Koh’s interpretation
• General duty to protect the marine environment

23. Rights, Duties, Jurisdiction and Discretion of Strait States
Principles of Marine Environmental Law
• Customary International Law
– San Juan River Cases (1888)
– Bering Sea Fur Seals Cases (1893)
– North Atlantic Coast Fisheries Case (1910)
– Trail Smelter Arbitration (1938-1941)
– Corfu Channel Case (1949)
– Gabcikovo-Nagymaros Case and Pulp Mills on the River Uruguay 2010
• International Environmental Law
– State practice
• UN Conference on the Human Environment and the World Commission
on Environment and Development
• UN Conference on Environment and Development, Rio Declaration,
Agenda 21-Chapter 17
• World Summit on Sustainable Development, The Future We Want

24. Rights, Duties, Jurisdiction and Discretion of Strait States
Principles of Marine Environmental Law
• International Environmental Law (Cont’d)
– Sustainable development
– Precautionary principle
– Preventive and polluter-pays principles
– Influence on the international law of the sea
– Recommendations to amend the 1982 LOSC to
reflect international environmental principles

25. Rights, Duties, Jurisdiction and Discretion of Strait States
Principles of Marine Environmental Law
• Marine Environmental Law for Strait States
– Customary international law
– Principle of sustainable development
– Applicability of international law
– Environmental law principles

26. Conclusions
• Challenges faced by the strait States as their
territorial seas lost that status in exchange for the
regime of straits used for international navigation
where the strong doctrine of transit passage
prevailed.

27. Conclusions
• Transit passage rights of ships, aircraft and spacecraft
need to be reconciled with the strait States rights,
duties and discretion not only to exercise contiguous
zone rights in such straits but also for the protection
and preservation of the marine environment of the
straits.

28. Conclusions
Way forward
• Challenge to navies to respond to the civilian call for
the protection and preservation of the marine
environment and its resources
• This is to be done through the demarcation of the
geographical zone and personal and material scope
of the cooperation upholding the due diligence and
due regard obligations of all States in the marine
environment of the straits.