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Who goes where, when, and how: international Law of the Sea for transportation

Published online by Cambridge University Press:  22 May 2009

William T. Burke
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Abstract

Major LOS controversies over navigation concern access to the waters of archipelagoes, the scope of coastal authority over passage through the territorial sea and straits, and navigation through ocean areas adjacent to the territorial sea. Proposals at the LOS Conference pertaining to access to archipelagic waters focus on new rights for island nations and on safeguards for navigation interests. The specific issues at stake in the territorial sea and in straits concern innocent passage for warships, coastal authority to deny innocent passage, clarification of the concept of innocent passage, and the scope and content of a claimed special right of transit for straits. Beyond the territorial sea the most important navigation issues relate to the extent of coastal authority other than control of resources. Controls over vessel source pollution are at issue as well as the relationship of navigation to resource measures. Assessment of the various interests at stake and of the trends in consideration of proposed treaty arrangements on the above issues suggests that, in general, navigation uses of the ocean will not suffer unduly in the LOS treaty expected to emerge in 1977. However, proposals to create a new zone, called the economic zone, which would be subtracted from the high seas, pose a possible long-term threat to navigation interests.

Type
Research Article
Information
International Organization , Volume 31 , Issue 2 , Spring 1977 , pp. 267 - 289
Copyright
Copyright © The IO Foundation 1977

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References

1 The Geneva session of the LOS Conference, which ended in May 1975, produced an Informal Single Negotiating Text which binds no delegation and contains some provisions which reflect the negotiations and others which do not. The Text does not identify which is which. IV Official Records, Third United Nations Conference on the Law of the Sea 137–81 (1975). (Hereinafter cited as Official Records).

Editor's note: The RSNT, Part II produced some minor but no major changes in the provisions of the SNT concerning passage through archipelagic waters, the territorial sea and straits. This is congruent with the wide agreement which exists on these issues. On the other hand, while the provisions of the RSNT concerning the status of the economic zone remain the same as in the SNT, the level of conflict on this issue has increased significantly. The problem has been dealt with in the Introductory Note of the Chairman of Committee II to the RSNT, Part II (Document #A/CONF.62/WP.8/Rev.l/Part II) and in the article by Miles in this journal.

2 For a more detailed discussion of these issues and others affecting navigation interests see Burke, , Contemporary Law of the Sea: Transportation, Communication and Flight, Yale Studies in World Public Order, 184 (1976)Google Scholar.

The present discussion considers only the allocation of regulatory authority affecting navigation. For discussion of enforcement authority relating to navigation see the article in Yale Studies in World Public Order; see also Burke, W., Legatski, R., and Woodhead, W., National and International Law Enforcement in the Ocean (1975)Google Scholar .

3 For observations on this in relation to Indonesia and the United States, see Osgood, et al. , Toward a National Ocean Policy: 1976 and Beyond 46 (1975)Google Scholar ; see also Das, and Pradhan, , Oil Discovery and Technical Change in Southeast Asia-Some International Law Problems Regarding the Straits of Malacca (Field Report Series No. 5, Institute of Southeast Asian Studies, 1972)Google Scholar.

4 UN Doc. A/Conf.62/C.2/L.49, III Official Records 226.

5 SUN Doc. A/AC.138/SC.II/L.44, UNGA Official Records, III Report of the Committee on Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction, 28th Sess., Supp. No. 2, 99 (A/9021) (1973).

6 Committee II Text, Articles 117–31, IV Official Records 168–70.

7 Article 124(12), ibid., at 170.

8 Burke, supra note 2.

9 As of December 1975, the US State Department counted 128 independent coastal states. Including three states classified as “modified archipelago,” the Department reports that 80 of these coastal states claim a territorial sea of at least 12 miles, with 57 claiming that limit. See US State Department, Bureau of Intelligence and Research, Office of the Geographer, Limits in the Seas, National Claims to Maritime Jurisdictions 3rd Revision, December 1975. The trend toward 12 miles has been underway for at least a decade. It hardly seems plausible anymore to contend that two-thirds of coastal states are claiming a boundary in excess of that permitted by international law.

If the LOS Conference does not establish a 12-mile territorial sea by explicit agreement, it can be expected that states will begin to establish wider limits.

10 These differences are discussed in some detail in Burke, supra note 2.

11 The effects mentioned in Article 21 might be achieved by, for example, choosing sea-lanes of insufficient depth for safe passage. Any requirement which in practical application made passage hazardous or unduly difficult or severely inconvenient would seem proscribed by Article 21.

12 The Main Trends were a series of working papers produced by Committee II in the Caracas session which sought to bring some order to the proliferation of alternatives on every issue. III Official Records 107–42.

13 Provision 136, ibid., at 130.

14 For detailed description and comparison of the numerous proposals on this problem see Burke, Legatski, and Woodhead, supra note 2, at 54–63, 73–81.

15 V Official Records, 176.

16 Article 30 (3), V Official Records 178.

17 Ibid.

18 Ibid.

19 Ibid.

20 Article 43, V Official Records 180.