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The Law of the Sea Convention and Third States

Published online by Cambridge University Press:  27 February 2017

Luke T. Lee
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Extract

The decision of the United States and 22 other countries not to sign the Law of the Sea Convention in Montego Bay, Jamaica, on December 10, 1982, raises the important question of the legal effects of the. Convention upon nonsignatories (hereinafter referred to as “third states”). Will the latter be entitled to claim and enjoy treaty provisions beneficial to them, such as those pertaining to military or commercial navigation through international straits, including submerged passage and overflight rights, or will these rights be considered as contractual in nature, exercisable only by states parties? Clearly, the question is of critical importance to the regime of the law of the sea. Since there has been to date no systematic legal analysis of this important question in debates surrounding the Law of the Sea Convention, this essentially legal question has been consigned to general policy pronouncements.

Type
Research Article
Information
American Journal of International Law , Volume 77 , Issue 3 , July 1983 , pp. 541 - 568
Copyright
Copyright © American Society of International Law 1983

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References

1 The United Nations Convention on the Law of the Sea, UN Doc. A/CONF.62/122 (Oct. 7, 1982), reprinted in 21 ILM 1261 (1982).

2 The Convention was signed by 119 delegations when it was opened for signature on Dec. 10, 1982. See Closing Statement by the President of Conference on the Law of the Sea, in UN Press Release SEA/MB/14, Dec. 10, 1982. It will remain open for 2 years and will not enter into force until 12 months after being ratified by 60 countries. It is expected that some of the countries that did not sign the treaty in Montego Bay will sign it later, and that some of the countries that signed it may not ratify it. Indeed, on Feb. 7, 1983, the Government of Antigua and Barbuda and the Government of Japan signed the Convention. See Addendum to Depositary Notification C.N.297.1982.TREATIES-1 of 17 December 1982, Depositary Notification C.N.7.1983.TREATIES-1 (Feb. 23, 1983). The text of the treaty was adopted by the Third United Nations Conference on the Law of the Sea in New York on April 30, 1982, by a vote of 130 in favor, 4 against (including the United States), and 17 abstentions. President Reagan announced his decision not to sign the treaty on July 9, 1982. See Statement by the President, released by the Department of State on July 9, 1982, 18 Weekly Comp. Pres. Doc. 887 (July 12, 1982).

3 See Ratiner, , The Law of the Sea: A Crossroads for American Foreign Policy, 60 Foreign Aff. 1006, 1018 (1982)Google Scholar (summary of opposing views).

Contemporary relevant official statements include that of a senior State Department official, who said the administration believed that President Reagan’s decision not to sign the Law of the Sea Convention would not affect U.S. ships’ access to international waters because the United States is “adequately protected” by existing international law “and we believe we have a sound legal position in terms of assured transit” through some 115 international straits governed by the treaty. Washington Post, July 10, 1982, at A5. See also N.Y. Times, July 10, 1982, at 5; Christian Science Monitor, July 13, 1982, lead editorial, at 24.

In his testimony before a U.S. Senate body on Sept. 15, 1982, Theodore Kronmiller, Deputy Assistant Secretary of State for Oceans and Fisheries Affairs, stated:

The exercise by the United States of rights and freedoms under international law can be limited only with our consent. This point holds true with regard both to our right to mine the seabed and to our right to navigate under, on and over the world’s oceans, including international straits.

Law of the Sea Negotiations: Hearing Before the Subcomm. on Arms Control, Oceans, International Operations and Environment of the Senate Comm. on Foreign Relations, 97th Cong., 2d Sess. 8 (1982) [hereinafter cited as Senate Hearing].

Additionally, James L. Malone, Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs and Chairman, U.S. delegation to the Law of the Sea Conference, stated in his address, “The United States and the Law of the Sea after UNCLOS III,” given at the Duke University Symposium on “Law of the Sea-Where Now?,” on Oct. 29, 1982 (text to be published in a symposium issue of Law and Contemporary Problems):

Some claim that by rejecting the LOS Convention the U.S. will lose the navigation rights set out in the Convention, rights the United States sought to secure in a comprehensive LOS treaty. If the U.S. does not accept the seabed mining provisions, so goes the argument, the rights set forth in other portions of the Convention are forfeited. This is not so. Particularly with respect to navigation rights, the history of the law of the sea has been predominantly a history of customary rules evolving through state practice. In this area the Convention incorporates existing law, which will continue to apply to all states, not because of the treaty, but because of the customary law underlying the treaty. We are confident that we and our allies have the legal basis to protect our navigational interests outside the Treaty.

Dissenting, Elliot L. Richardson, head of the U.S. delegation to the Law of the Sea Conference from 1977 to 1980, said the United States would not be able to take advantage of the treaty provisions, such as navigational freedom for warships, without signing the treaty: “We can’t pick and choose among the rights and responsibilities of the treaty.” Christian Science Monitor, July 22, 1982.

Ambassador Tommy Koh, President of the Law of the Sea Conference, likewise stressed that such U.S. interests as military security and resources would not necessarily be protected by customary international law alone if the United States did not become a party to the treaty. The United States would therefore run the risk of having its right to transit passage in straits vital to its global strategic interests, for example, challenged by states parties who considered such matters as governed solely by the Law of the Sea Convention. Straits Times, July 23, 1982. He elaborated further on this point in his closing statement of the conference on Dec. 10, 1982:

The argument that, except for Part XI, the Convention codifies customary law or reflects existing international practice is factually incorrect and legally insupportable. The regime of transit passage through straits used for international navigation and the regime of archipelagic sea lanes passage are two examples of the many new concepts in the Convention. Even in the case of article 76 on the continental shelf, the article contains new law in that it has expanded the concept of the continental shelf to include the continental slope and the continental rise. This concession to the broad margin States was in return for their agreement for revenue-sharing on the continental shelf beyond 200 miles. It is, therefore, my view that a State which is not a party to this Convention cannot invoke the benefits of article 76.

Meeting of Dec. 10, 1982, UN Doc. A/CONF.62/PV.193, at 23–25 (1983).

4 See the table on Rights of Third States to the Law of the Sea Convention, infra p. 550.

5 1 Oppenheim, L., International Law 925–26 (8th ed. Lauterpacht 1955)Google Scholar.

In Free Zones of Upper Savoy and the District of Gex, the PCIJ held that “Article 435 of the Treaty of Versailles is not binding upon Switzerland, who is not a party to the Treaty, except to the extent to which that country accepted it.” 1932 PCIJ, ser. A/B, No. 46, at 141. See also the Upper Silesia Case, 1926 PCIJ, ser. A, No. 7, at 29, in which the Court stated: “A treaty only creates law as between the States which are parties to it; in case of doubt no rights can be deduced from it in favour of third States.”

6 Art. 34, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969). See the similar provision in Restatement of the Foreign Relations Law of the United States (Revised) §328(1) (Tent. Draft No. 1, 1980).

7 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), 1969 ICJ Rep. 3, 25–26 (Judgment of Feb. 20).

A perhaps overly restrictive and literal view of pacta tertiis has been applied in some recent American cases involving the 1958 Geneva Convention on the High Seas. Thus, in United States v. Cadena, 585 F.2d 1252 (5th Cir. 1978), the court of appeals upheld the conviction of the defendant Colombian nationals for conspiracy to import marijuana into the United States despite the fact that defendants were arrested by U.S. Coast Guard personnel who boarded a Canadian-registered vessel some 200 miles off the U.S. coast. The court held, inter alia, that provisions of the Convention on the High Seas, 450 UNTS 82, 13 UST 2312, TIAS No. 5200, could not be relied upon by Canada or Colombia, neither of which was a party to the Convention. The court stated, 585 F.2d at 1261: “There is no indication in the treaty, or elsewhere, that it was intended to confer rights on non-member nations or on vessels of non-member nations, let alone on citizens of non-member nations.”

The Cadena decision may be criticized for ignoring the fact that the Convention on the High Seas aimed at codifying existing customary international law (see text accompanying notes 64–66 infra), and hence was binding on all states whether or not parties to it. For the question whether the relevant provisions of the Geneva Convention are “self-executing,” in the sense that they have become part of municipal law enforceable by private individuals without separate legislation, see Riesenfeld, , The Doctrine of Self-Executing Treaties and U.S. v. Postal: Win at Any Price?, 74 AJIL 892 (1980)CrossRefGoogle Scholar.

For similar decisions involving seizures and arrests in narcotics cases on the high seas, see United States v. Williams, 589 F.2d 210 (5th Cir. 1979), 617 F.2d 1063 (1980); United States v. Postal, 589 F.2d 862 (5th Cir. 1979), cert, denied, 444 U.S. 832 (1979); United States v. Conroy, 589 F.2d 1258 (5th Cir. 1979), cert, denied, 444 U.S. 831 (1979); United States v. Green, 671 F.2d 46 (1st Cir. 1982). So long as these decisions are not overturned by the U.S. Supreme Court, they retain legal validity, at least in the areas under the jurisdiction of the relevant federal circuit courts.

For an analysis of the Cadena and similar cases, see Connolly, , “Smoke on the Water”: Coast Guard Authority to Seize Foreign Vessels Beyond the Contiguous Zone, 13 N.Y.U. J. Int’l L. & Pol. 249 (1980)Google Scholar.

8 Although rights and duties are generally regarded as two sides of the same coin, a distinction between third states’ rights and duties is found in H. Kelsen, Principles of International Law 345–50 (1952); and in the Vienna Convention on the Law of Treaties, which imposes a more stringent condition for establishing in treaties third states’ obligations than it does for rights. In the case of obligations, it requires that third states’ acceptance be “in writing” (Art. 35). In the case of rights, however, their “assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides” (Art. 36(1); see text accompanying note 10 infra).

9 See Brigcs, H., The Law of Nations 870–72 (2d ed. 1952)Google Scholar; Brownlie, I., Principles of Public International Law 500–01 (1966)Google Scholar.

During World War II, the U.S. Government requisitioned some Finnish ships lying in U.S. ports, settlement for which was still pending when the 1947 Treaty of Peace with Finland came into effect. Under this Treaty, to which the United States was not a party, Finland “waives all claims . . . on behalf of the Finnish Government or Finnish nationals against any of the United Nations whose diplomatic relations with Finland were broken off during the war and which took action in co-operation with the Allied and Associated Powers” (Art. 29). Specifically mentioned were “claims arising out of actions taken by any of the Allied and Associated Powers with respect to Finnish ships.” The position of the Department of State was that no “vested rights” had accrued in the United States as a third-party beneficiary without some positive act of acceptance. See 14 Whiteman, M., Digest of International Law 337–47 (1970)Google Scholar.

As to the question of whether third states can acquire treaty rights only through adhering to an adhesion clause in a treaty, Roxburgh said that, even without such a clause, “third states would, after no very considerable lapse of time, have acquired rights through the development of a customary rule.” Roxburgh, R., International Conventions and Third States 66–67 (1917)Google Scholar.

10 It may be noted that the American Law Institute’s Restatement (Second) of the Foreign Relations Law of the United States (1965) provides (§139(1)): “An international agreement may create a right in favor of a state not a party to it if the agreement manifests the intention of the parties that it shall have this effect.” Section 328(3) of Tentative Draft No. 1 (1980) of the revised Restatement (note 6 supra), however, follows closely the wording of the Vienna Convention on the Law of Treaties.

As for the nature of rights created for third states, such rights may be substantive as well as procedural. The United Nations Charter, for example, confers upon nonmember states a variety of substantive rights under, inter alia, Articles 2(4) (freedom from threat or use of force against territorial integrity or political independence by all members) and 2(7) (right to nonintervention in matters essentially within domestic jurisdiction), as well as procedural rights under Articles 32 (participation in discussion of disputes at the Security Council), 35(2) (bringing disputes to the attention of the Security Council or the General Assembly), and 50 (consulting the Security Council on the solution of special economic problems resulting from the implementation of preventive or enforcement measures).

In the case of the Law of the Sea Convention, to the extent that the prospective parties indeed intend to accord rights to third states, such rights are almost exclusively in areas of a substantive nature.

11 See note 7 supra. See also the Free Zones case, 1932 PCIJ, ser. A/B, No. 46, at 147–48, in which the Permanent Court of International Justice held that it must be ascertained in each case “whether the States which have stipulated in favour of a third State meant to create an actual right which the latter has accepted.”

12 For contrary indications, see text accompanying notes 18–29 infra.

13 de Aréchaga, Jiménez, Treaty Stipulations in Favor of Third States, 50 AJIL 338, 356 (1956)Google Scholar. See also Harvard Draft Convention on the Law of Treaties, with Comment summarizing views of authorities and citing cases. 29 id., Supp. 661, 935 (1935); M. Whiteman, supra note 9, at 334.

The “international waterways” mentioned in Jiménez de Aréchaga’s statement refer to the Suez, Panama, and Kiel Canals, whose governing treaties use the expressions “all nations” or “every vessel of commerce or of war, without distinction of flags.” See Art. I of the 1888 Constantinople Convention, 79 Brit. & Foreign ST. Papers 18, 3 AJIL, Supp. 123 (19(59); Art. 3 of the 1901 Hay-Pauncefote Treaty between the United States and Great Britain, 32 Stat. 1903, TS No. 401; Art. 18 of the 1903 Hay-Varilla treaty between the United States and Panama, 33 Stat. 2234, TS No. 431; and Art. 380 of the 1919 Treaty of Versailles.

Although Baxter defines “international waterways” as “rivers, canals and straits which are used to a substantial extent by the commercial shipping or warships belonging to states other than the riparian nation or nations” ( Baxter, R., The Law of International Waterways 3 (1964)Google Scholar), his analysis of treaties governing passage of ships through international waterways in time of peace (ch. III) is confined to those relating to inter-oceanic canals, i.e., the Suez, Panama, and Kiel Canals. The only treaty he cites (p. 165) as regulating passage through international straits, other than the Geneva Convention on the Territorial Sea and the Contiguous Zone, is the Montreux Convention regarding the Regime of the Straits of 1936, 173 LNTS 213. Under this Convention, passage of all minor warships through the Turkish Straits must be notified through diplomatic channels 8 days in advance of passage, but only the Black Sea powers may send capital ships through the straits after similar notification (Arts. 10 and 11).

Despite the affinity between canals and straits as regards laws regulating freedom of transit in time of peace, their sources are different. In Baxter’s words:

The right of free passage through international straits is a product of state practice hardening into customary international law and thence into treaty. The right of free passage through interoceanic canals is a consequence of the opening of each waterway to usage by the international community. It is the origin of the right in a series of individual grants which distinguishes the law relating to canals from the law of straits [p. 168].

In essence, passage through international straits may be regarded as but one aspect of the freedom of the seas (p. 184), including assimilation to the regime of “innocent passage,” whereas canals, absent “express provisions to the contrary,” are merely part of the landmasses through which they flow (pp. 184–85). For a discussion of four different approaches to passage through inter-oceanic canals (i.e., “international servitude,” the doctrine of third-party beneficiaries, “dispositive right,” and “dedication-reliance” theory), see pp. 177–84. For a critique of these approaches, see Lee, , Legal Aspects of Internationalization of Interoceanic Canals, 33 L. & Contemp. Probs. 158, 162–64 (1968)Google Scholar, reprinted in The Middle East Crisis: Test of International Law (Halderman, ed. 1968)Google Scholar.

14 See Article 31(1) of the Vienna Convention on the Law of Treaties, which reads: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (emphasis supplied).

15 See supra note 12.

16 See text accompanying note 7 supra.

17 Article 310 provides:

Article 309 [Reservations and exceptions] does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.

18 All of these delegations spoke against third states’ rights, and none in favor. See the speeches of the delegates from the following countries: Canada (185th mtg. of Dec. 6, 1982, UN Doc. A/CONF.62/PV.185, at 31 (1983)); Cameroon (id. at 37); Tanzania (187th mtg. of Dec. 7, 1982, UN Doc. A/CONF.62/PV.187, at 83 (1983)); Byelorussian SSR (189th mtg. of Dec. 8, 1982, UN Doc. A/CONF.62/PV.189, at 46 (1983)); Indonesia (186th mtg. of Dec. 6, 1982, UN Doc. A/CONF.62/PV.186, at 16 (1983)); Iran (191st mtg. of Dec. 9, 1982, UN Doc. A/CONF.62/PV.191, at 32 (1983)); and the USSR (id. at 41).

19 185th meeting, supra note 18, at 63–67.

20 See text accompanying note 112 infra.

21 185th meeting, supra note 18, at 66.

22 Depositary Notification C.N.297.1982.TREATIES-1, at 3 (Dec. 17, 1982).

23 Ibid.

24 The declarations of Cuba and the German Democratic Republic, for example, state that they reserve the right specifically to make further declarations in connection with their ratification of the Convention. Depositary Notification C.N.7.1983. Treaties-1, supra note 2, Ann. B, at 5, 7.

25 See Mcrae, , The Legal Effect of Interpretative Declarations, 49 Brit. Y.B. Int’l L. 155, 158–59 (1978)Google Scholar; McDorman, , Reservations and the Law of the Sea Treaty, 13 J. Mar. L. & Com. 481, 509 (1982)Google Scholar. The latter makes this observation (ibid.):

The inclusion of Article 310 in a law of the sea treaty will be an invitation for interpretative declarations that declaring States will argue do not modify the legal effects of the treaty and receiving States will argue amount to reservations. The depositary will be unable to say anything definitive, and only third party dispute settlement will be able to make the final determination.

26 Ann. B, supra note 24, at 8.

27 Supra note 18.

28 See infra note 112.

29 Supra note 18.

30 See text accompanying note 13 supra

31 See text accompanying note 67 infra.

32 UNGA Res. 2625 (XXV) and its Annex (Oct. 24, 1970). For a discussion of the “every State” formula, see Arangio-Ruiz, G., The UN Declaration of Friendly Relations and the System of the Sources of International Law 98, 106, 115–16, 135, and 146 (1979)Google Scholar.

33 See text at note 13 supra.

34 See supra note 12.

35 See supra note 13 and accompanying text.

36 Colombos, C. J., The International Law of the Sea 109 (6th ed. 1967)Google Scholar; Dean, , The Second Geneva Conference on the Law of the Sea: The Fight for Freedom of the Sea, 54 AJIL 751, 788 (1960)Google Scholar; Johnson, , Law of the Sea: Developments Since the Geneva Conferences of 1958 and 1960, 10 Int’l & Comp. L.Q. 587 (1961)CrossRefGoogle Scholar.

37 Dep’t of State, Office of the Geographer, Summary of Coastal State Claims (mimeo, Nov. 15, 1982, updating Limits in the Seas No. 36: National Claims to Maritime Jurisdictions (4th rev. 1981)).

38 Richardson, , Power, Mobility and the Law of the Sea, 58 Foreign Aff. 902, 905 (1980)Google Scholar. See also the statements of Ambassador Koh, President of the Law of the Sea Conference, supra note 3, and the Iranian delegation, supra note 18.

39 Statement by the President, March 10, 1983, 19 Weekly Comp. Pres. Doc. 383 (March 14, 1983), reprinted, together with the proclamation, infra at pp. 619–22.

40 See text accompanying notes 18–29 supra.

41 Lee, , The International Law Commission Re-Examined, 59 AJIL 545, 545–46 (1965)CrossRefGoogle Scholar; Baxter, , Treaties and Custom, 129 Recueil Des Cours 25, 101 (1970 I)Google Scholar.

42 Lauterpacht, , Codification and Development of International Law, 49 AJIL 16, 29 (1955)Google Scholar; Lee, supra note 41, at 556.

43 Gamble, , The Treaty/Custom Dichotomy: An Overview, 16 Tex. Int’l L.J. 305, 312 (1981)Google Scholar. See also Sørensen, M., Manual of Public International Law 129 (1968)Google Scholar; Bos, , The Recognized Manifestations of International Law, A New Theory of “Sources,” 20 German Y.B. Int’l L. 9 (1977)Google Scholar. Professor Anthony A. D’Amato speaks of a “double source of obligation” in the sense that even if a party should withdraw from a treaty, it would still be bound by the customary international law incorporated therein. See D’amato, A., The Concept of Custom in International Law 107–08 (1971)Google Scholar. See also Vierdag, , The Law Governing Treaty Relations between Parties to the Vienna Convention on the Law of Treaties and States not Party to the Convention, 76 AJIL 779, 786 (1982)Google Scholar, in which he uses the term “double regime.”

44 Report of the International Law Commission to the General Assembly, [1950] 2 Y.B. Int’l L. Comm’n 364, 368, UN Doc. A/CN.4/SER.A/1950/Add.l.

This relationship between customary international law and treaties is similar to the relationship between general principles of law—the third source of international law upon which the International Court of Justice may draw—and treaties. Since “general principles” in the law of the sea context are covered under either treaties or customary law, there is no need to deal with them separately in this paper.

45 S. Exec. Doc. L., 92d Cong., 1st Sess. 1 (1971).

46 See, e.g., 1974 Digest of United States Practice in International Law 198, 228, 235.

47 Memorial of the Government of the United States of America in Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) 42 n.2 (1980). Elsewhere in the same brief, it placed emphasis on those rules which were “firmly embedded in customary international law well before the adoption of the Vienna Convention on Diplomatic Relations” (id. at 50–51 n.2).

48 See, e.g., the Cadena case, 585 F.2d 1252 (5th Cir. 1978), in which the court of appeals applied Article 36 to deny rights to citizens of states not parties to the Geneva Convention on the High Seas. The case is discussed in note 7 supra.

49 Restatement (Revised), supra note 6, at 72.

50 United Nations, Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1981, UN Doc. ST/LEG/SER.E/1, at 619.

51 1971 ICJ Rep. 16, 47 (Advisory Opinion of June 21).

52 See the penultimate paragraph of the Preamble to the Convention on the Law of the Sea.

53 In addition to the Preamble to the Convention on the Law of the Sea cited in the preceding note, see also the Preamble to the Geneva Convention on the High Seas, supra note 7.

54 See, e.g., the Nottebohm case ((second phase) (Liechtenstein v. Guatemala), 1955 ICJ Rep. 4, 22–23 (Judgment of April 6)), in which the International Court of Justice invoked Articles 1 and 5 of the Hague Convention of 1930 on Certain Questions relating to the Conflict of Nationality Laws (179 LNTS 89) as evidence of the applicable international law, despite the fact that neither Liechtenstein nor Guatemala was a party to the Hague Convention.

55 This is not intended, of course, to belittle the difficulty of actually applying travaux preparatoires to the task of treaty interpretation. As Professor Reisman underscores: “As yet there is no systematic study of the theory and practice of the use of travaux in international interpretation.”

See Reisman, , The Regime of Straits and National Security: An Appraisal of International Lawmaking, 74 AJIL 48, 56 n.20 (1980)Google Scholar. See also Fitzmaurice, , The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points, 29 Brit. Y.B. Int’l L. 1, 6 (1952)Google Scholar; McNair, A., The Law of Treaties 413, 423 (1961)Google Scholar; D’Amato, , The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110, 1137–38 (1982)Google Scholar.

56 See Baxter, supra note 41, at 42, 46 et seq.; and his Multilateral Treaties as Evidence of Customary International Law, 41 Brit. Y.B. Int’l L. 288, 296, 298 (1965–66).

57 Vattel distinguished straits that serve as communication links between two portions of the high seas for international navigation from those that have no such function. Passage through straits in the former category may not be refused by straits states, although it may be made conditional upon payment of moderate dues for services such as keeping the straits lighted, marked off, and free from piracy. de Vattel, E., Le Droit des gens, bk. 1, ch. 23, §292 (London 1758)Google Scholar.

58 Gérard de Rayneval was one of the first to emphasize the right of passage through straits. de Rayneval, G., Institutions du droit de la Nature et des gens, bk. 2, ch. 9, §7 (Paris 1803)Google Scholar. Hautefeuille strongly urged the freedom of navigation in straits, including even those which separate two coasts of the same state. Hautefeuille, L., Des droits et des devoirs des nations neutres en temps de guerre maritime 60 et seq. (3d ed. 1868)Google Scholar. P. Godey advocated that straits ought to be subject to “un regime tout special.” Godey, P., La Mer côtière (Paris 1896)Google Scholar. For a brief survey of literature on this subject, see Brüel, E., International Straits 48–69 (1947)Google Scholar.

59 See note 63 infra.

60 For a description of efforts made to codify the legal regime for straits, in whole or in part, by the Institute for International Law, the International Law Association, the Inter-parliamentary Union, and the Hague Peace Conference of 1907, see E. Bruel, supra note 58, at 70–97. See also J. Moore, note 63 infra, at 659.

61 See note 90 infra.

62 See text accompanying note 68 infra.

63 Apart from the Geneva Convention on the Territorial Sea and the Contiguous Zone, which deals with straits navigation on an inter-regional basis, the following instruments governing navigation through selected straits may be mentioned: the 1936 Montreux Convention regarding the Regime of the Straits (the Bosporus and the Dardanelles) (see also note 13 supra concerning the Montreux Convention); the 1881 Treaty between Argentina and Chile governing free navigation through the Straits of Magellan, 71 Brit. & Foreign St. Papers 1103; the 1904 Declaration between Great Britain and France relating to free passage of the Straits of Gibraltar, 101 id. at 1053, to which Spain adhered in a Declaration with France in the same year, 93 Martens Nouveau Recueil 2d 57; the 1857 Convention between the United States and Denmark to abolish the tolls (referred to as the “Sound Dues”) and permit free passage of the Danish Straits, 11 Stat. 719, TS No. 67, discussed in 1 Moore, J., Digest of International Law 660–64 (1906)Google Scholar.

See also Cundick, , International Straits: The Right of Access, 5 Ga. J. Int’l & Comp. L. 107, 124–27 (1975)Google Scholar.

64 Jessup, , The United Nations Conference on the Law of the Sea, 59 Colum. L. Rev. 234, 235 (1959)Google Scholar; Fitzmaurice, , Some Results of the Geneva Conference on the Law of the Sea, 8 Int’l & Comp. L.Q. 73, 74 (1959)Google Scholar; Lee, , Jurisdiction over Foreign Merchant Ships in the Territorial Sea: An Analysis of the Geneva Convention on the Law of the Sea, 55 AJIL 77, 96 (1961)Google Scholar.

65 Supra note 7.

66 Baxter, Multilateral Treaties, supra note 56, at 290 (emphasis supplied). For a contrary view, see D’Amato, supra note 55, at 1138 (treaties generate custom irrespective of the intent of states parties).

67 Letter on file from Professor Oscar Schachter, dated Jan. 31, 1983.

68 516 UNTS 205, 15 UST 1606, TIAS No. 5639.

69 See part III of the Convention.

70 Art. 20.

71 Art. 39(1)(c).

72 Moore, , The Regime of Straits and the Third United Nations Conference on the Law of the Sea, 74 AJIL 77, 89 (1980)Google Scholar.

73 For the view that under the Convention there is an absolute right for submarines to engage in submerged passage through straits, see id. at 89, 95–100; Burke, , Submerged Passage through Straits: Interpretations of the Proposed Law of the Sea Treaty Text, 52 Wash. L. Rev. 193, 205 (1977)Google Scholar. For the view that such a right is only a conditional one, see Reisman, supra note 55, at 71–75.

For the purpose of this paper, it is unnecessary to assess the comparative validity of the absolutist and conditionalist views, since in either case third states’ rights, if extant, would be the same as those of states parties. Both views agree that, unlike the “innocent passage” regime under the 1958 Geneva Convention, the Law of the Sea Convention does not exclude submerged passage. Reisman himself acknowledged:

The point of the present inquiry is not that submerged passage is excluded, but that it is not certain in the text, and, in the absence of express confirmation, is unlikely to defeat coastal competences which are explicit and could be used to require surface passage and, in some circumstances, ban passage and overflight.

Id. at 74–75 n.63.

74 Annex B, supra note 24, at 14.

75 Id. at 8.

76 Treves, , Military Installations, Structures, and Devices on the Seabed, 74 AJIL 808, 811 (1980)Google Scholar.

77 Booth, , The Military Implications of the Changing Law of the Sea, in Law of the Sea: Neglected Issues 328, 340 (Gamble, J. K. ed. 1979)Google Scholar, cited in id. at 811 n.23.

78 Moore, supra note 72, at 90, 95 et seq.

79 For the possibility of the formation of new customary law since the Law of the Sea Conference, see text accompanying notes 99–100 infra.

80 See note 73 supra.

81 Clearly reflecting this finding is the conclusion of the Report of the Committee on Law of the Sea (July 1982) of the American Branch of the International Law Association (text appended to Senate Hearing, supra note 3, at 113, 142):

The negative observation seems clear that certain important rights sought and claimed by the United States in areas such as freedom of navigation cannot be considered fully secure. But what are the positive contours of the new regime, which may be binding on the United States and others even in the absence of a declared intention to adhere thereto, is a question that will undoubtedly provide stimulus for the fertile imaginations of international lawyers, diplomats and professors for a long time to come.

82 Stevenson, & Oxman, , The Preparations for the Law of the Sea Conference, 68 AJIL 1, 3 (1974)Google Scholar; and The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session, 69 id. at 1, 14(1975).

83 Reisman, supra note 55, at 57.

84 At the Duke University Symposium on “Law of the Sea—Where Now?,” supra note 3, Rear Admiral Bruce Harlow stated that “it may be assumed that certain technologically developed strait states have listening arrays and other detective devices that monitor the movement of submerged traffic.” Even states without such advanced technology, according to Harlow, “had intelligence and public information from which the existence of the practice could be easily determined.” He cited the following as an example: “When a port call notice reveals the presence of a submarine at point A, and call at point B, it requires little shrewdness to conclude that the strait located between points A and B has been utilized for transit.”

85 MacGibbon, , The Scope of Acquiescence in International Law, 31 Brit. Y.B. Int’l L. 143, 172 (1954)Google Scholar. For discussions on a similar subject, see MacGibbon, , Some Observations on the Part of Protest in International Law, 30 id. at 293 (1953)Google Scholar; and his Customary International Law and Acquiescence, 33 id. 115 (1957); O’Connell, , Mid-Ocean Archipelagos in International Law, 45 id. at 1, 60–69 (1971)Google Scholar; Wolfke, K., Custom in Present International Law 44–45 (1964)Google Scholar; [1950] 1 Y.B. Int’l L. Comm’n 4–5, UN Doc. A/CN.4/SER.A/1950.

For the view that “a failure to protest might manifest not acquiescence but a belief that the usage was simply outside the legal realm, belonging to the realm of social courtesy or comity,” see A. D’amato, supra note 43, at 70.

86 For a lucid discussion on the subject of “special customary rights,” see A. D’amato, supra note 43, ch. 8.

87 See text accompanying notes 57–64 supra.

87a Notwithstanding the Yemeni position described in text accompanying note 74 supra.

88 E. Brüel, supra note 58, at 202.

89 Ibid.

90 1949 ICJ Rep. 4 (Judgment of April 9).

Compare the Court’s decision with a resolution adopted by the Institut de Droit International in Paris in 1894 that contained the following general principle with regard to straits: that straits hat serve as a passage from one free sea to another can never be closed. 13 Institut de Droit International, Annuaire 330–31 (1894–95); 1 J. Moore, supra note 63, at 659.

91 Supra note 6.

92 1969 ICJ Rep. 3.

The judgment of these cases was characterized by Professor Marek as “un arrêt dont on peut dire sans exageration qu’il est sans précédent dans toute la jurisprudence des deux Cours de La Haye par la richesse de son analyse.” Marek, , Le Problème des sources du droit international dans I’arrêt sur le plateau continental de la mer du Nord, 1970 Rev. Belge Droit Int’l 44, 45 Google Scholar. See also Baxter, supra note 41, at 33 n.7.

93 1969 ICJ Rep. at 41–44.

For the use of similar criteria by a national court in reaching the conclusion that a binding international custom could evolve from nonbinding international instruments, including even draft rules or declarations, see the Shimoda case, translated into English in the 1964 Japanese Annual of International Law 212–52, digested in 58 AJIL 1016 (1964). See also Falk, , The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki, 59 id. at 759 (1965)Google Scholar; Lee, , The Legal Status of Human Rights Re-Examined, in 1 Population and Development: Hearings Before the House Select Comm. on Population, 59th Cong., 2d Sess. 671, 688 (1978)Google Scholar.

94 See, however, Professor Bin Cheng’s statement on the relationship between repeated state practice and “customary law” regarding outer space: “There need . . . be no usage at all in the sense of repeated practice, provided that the opinio juris of the States concerned can be clearly established.” Cheng, , United Nations Resolutions on Outer Space: Instant International Customary Law?, 5 Indian J. Int’l L. 23, 36 (1965)Google Scholar.

95 Although the passage of time is necessarily implied in condition (3) above, it is given separate listing here both because the Court dealt with it at length and because of a widespread notion that customary international law is by nature “old” law. Thus, on the time element, the Court had this to say (1969 ICJ Rep. at 43):

[I]t is over ten years since the Convention was signed, but that it is even now less than five since it came into force in June 1964, and that when the present proceedings were brought it was less than three years, while less than one had elapsed at the time when the respective negotiations between the Federal Republic and the other two Parties for a complete delimitation broke down on the question of the application of the equidistance principle. Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision involved. . . .

Similarly, in his separate opinion in the Fisheries Jurisdiction case between the United Kingdom and Iceland (1974 ICJ Rep. 3, 89–90 (Judgment of July 25)), Judge de Castro included a considerable time period as one of four elements necessary for a practice to crystallize into customary international law. See also Scott, & Carr, , The International Court of Justice and’the Treaty/Custom Dichotomy, 16 Tex. Int’l L.J. 347, 352 (1981)Google Scholar.

On the other hand, Sir Gerald Fitzmaurice commented on the time element as follows:

It is a mistake to think customary law is necessarily “old” law, or that it must take a long time to come into being. It is capable of springing up quite quickly if a sufficiently wide and spontaneous consensus of opinion manifests itself in favour of the view that a given matter is governed by rules that must be considered to be rules of law. Prominent examples of this process in very recent times are to be found, for instance, in the fields of maritime, air and space law, and of war crimes and crimes against peace and humanity. . . .

Fitzmaurice, , The Older Generation of International Lawyers and the Question of Human Rights, in Essays in International Law in Honour of D. Antonio de Luna 321 note (Madrid 1968)Google Scholar.

Tracing the origin of many, if not nearly all, of the rules of customary law to generalizable provisions of treaties, D’Amato concludes that “generalizable provisions in treaties (especially multilateral treaties) ipso facto generate customary rules,” though he leaves open the possibility that the passage of “reasonable time” may be required for the development of evidence of custom into binding custom itself. See D’Amato, supra note 55, at 1146–47.

96 Smith, , Innocent Passage as a Rule of Decision: Navigation v. Environmental Protection, 21 Colum. J. Transnat’l L. 49, 72 (1982)Google Scholar.

97 1974 ICJ Rep. at 23.

98 Treves, supra note 76, at 812.

99 Id. at 812–13.

100 Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 18, para. 100.

101 Although the United States and some 40 other countries, together accounting by one estimation for more than half the global gross domestic product (See Meese, , Seabed? No, Bed of Nails, N.Y. Times, Feb. 21, 1983, at A17)Google Scholar, have withheld their signatures from the Convention, the yardstick for the second test—a “very widespread and representative participation in the convention”— should be the number of countries supporting the present text of the straits navigation provisions. Consequently, these provisions have received the near unanimous support of all countries— not only those that have signed the Convention, but also the major nonsignatories such as the United States. See statement by Ambassador Thomas A. Clingan, Jr., in Montego Bay, at the 192d meeting of Dec. 9, 1982, UN Doc. A/CONF.62/PV.192, at 2 (1983). See also President Reagan’s statement on March 10, 1983, supra note 39.

102 See text accompanying notes 18–29 supra.

103 Cf. Gross, Passage through the Strait of Tiran and in the Gulf of Aqaba, in The Middle East Crisis, supra note 13, at 125, 127.

104 A. Mcnair, supra note 55, at 259. See also McNair’s separate (concurring) opinion attached to the Advisory Opinion of July 11, 1950 of the ICJ on the international status of South-West Africa, 1950 ICJ Rep. 128, 153–55:

From time to time it happens that a group of great Powers, or a large number of States both great and small, assume a power to create by a multipartite treaty some new international regime or status, which soon acquires a degree of acceptance and durability extending beyond the limits of the actual contracting parties, and giving it an objective existence. This power is used when some public interest is involved. . . .

105 Brierly, J., The Law of Nations 326–27 (6th ed. 1963)Google Scholar.

106 A. McNair, supra note 55, at 260.

107 J. Brierly, supra note 105. The validity of the Aaland Islands Convention was reaffirmed in the declarations of Finland and Sweden in Montego Bay on Dec. 10, 1982, Depositary Notification, supra note 22, at 5 and 11, respectively.

108 A. McNair, supra note 55, at 265–68.

109 Reports of the International Law Commission on the second part of its 17th session and on its 18th session, [1966] 2 Y.B. Int’l L. Comm’n 169, 231, UN Doc. A/CN.4/SER.A/1966/ Add.l.

110 Ibid. See also Henkin, L., Pugh, R., Schachter, O., & Smit, H., International Law: Cases and Materials 634 (1980)Google Scholar. The Commission cited the 1959 Antarctic Treaty, 12 UST 794, TIAS No. 4780, 402 UNTS 71, as an example of a treaty creating an “objective regime.”

111 Eustis, , Procedures and Techniques of Multinational Negotiation: The LOS III Model, 17 Va. J. Int’l L. 217, 228 (1977)Google Scholar.

112 Statement of Ambassador Arias-Schreiber (Peru), speaking on behalf of the Group of 77 at the 183d plenary meeting of the resumed 11th session on Sept. 22, 1982, as summarized in UN Doc. A/CONF.62/SR.183, at 3–4 (prov. 1982). He added, however, that the Group of 77 had not yet concluded its consideration of this question. Nevertheless, Mr. Kolosovsky (USSR), on behalf of the Group of Eastern European States, expressed full support for the above statement. Id. at 4.

The Group of 77 eventually affirmed the above statement. See Ambassador Arias-Schreiber’s statement at the 185th meeting, note 19 supra.

113 Smith, supra note 96, at 72.

Indeed, the contents of package deals were themselves in a state of flux. For example, in 1973, the United States and its allies were prepared to agree to a universal extension of the territorial sea to 12 miles provided there was adequate agreement on free transit of straits used for international navigation. Stevenson & Oxman, Preparations, supra note 82, at 9–10. In 1974, however, “[m]ajor conditions for acceptance of 12 miles as a maximum limit were agreement on unimpeded transit of straits and acceptance of a 200-mile exclusive economic zone.” Stevenson & Oxman, The 1974 Caracas Session, supra note 82, at 14 (emphasis supplied).

114 Lee, supra note 64, at 96.

115 Multilateral Treaties, supra note 50, at 587.