International straits, transit passage

25 October 2012 | Article
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If the UNCLOS lays down a specific regime for international straits, it is obviously because it sees them as passages which are too narrow for the regimes of the high sea or Exclusive Economic Zone (EEZ) to apply to them: their maximum breadth (ie. less than, or equal to, twice the 12 nautical miles of the territorial sea between two opposite baselines) is 24 nautical miles. They therefore lie in the territorial sea of one State (or more) but are certainly used by international navigation. This precision is a contrario important in the Mediterranean where the "channels" or "straits" of Sicily and Otranto are important "passageways" in terms of both geography and oceanography (between the eastern and western basins, the Adriatic and Ionian Seas), but do not constitute international straits as defined by the UNCLOS. They come under the legal regimes of the high sea or EEZ.

The UNCLOS devotes 12 articles to international navigation in the straits [1].

While ensuring freedom of navigation and overflight in these areas, conventional law currently in force subjects their access to a panoply of rules and conditions which guarantee in particular the sovereignty and sovereign rights of the coastal States.

Transit passages and innocent passages are here fully guaranteed for vessels of other States.

Transit passage [2] should be expeditious and continuous, unless in the case of force majeure. Ships and aircraft, which should thus proceed without delay through or over the strait, may not under any circumstances represent a threat of any kind for the bordering State.

Furthermore, foreign ships carrying out scientific research or hydrographic surveys must obtain prior authorization from the coastal State.

To ensure safe passage for ships through the straits, bordering States may prescribe other sea lanes or traffic separation schemes clearly indicated on maritime charts. For this purpose, due publicity is essential, using circulars adopted by the IMO*.

The ecological vulnerability of Mediterranean straits caused by heavy maritime traffic in the region is of the utmost importance. But in this respect, the legal regime covering the straits is more favorable to maritime powers than to coastal States: the many rights granted to the first obstruct the securization capabilities of the second, and hamper the exercise of their patrimonial responsibility.

However, while the legal regime applicable to straits used for international navigation, especially for transit passage, and the introduction of regional measures to protect the environment may seem contradictory, the law-maker is not opposing Freedom against Regulations (the latter may even guarantee the former). Provisions concerning the Strait of Bonifacio illustrate the point.

Prospects for integrated management must therefore open up a debate and ask questions regarding the adaptation of the legal framework, jurisdiction, risk assessment, alternative routes… Areas, risks, needs, and even management methods which have been tried elsewhere, should be identified in order to build a project capable of guiding and supporting regional governance.

[1] UNCLOS, part III, articles 34 to 45.

[2] UNCLOS, part III, article 38


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