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The right of overflight over strait states and archipelagic states: Developments and prospects*

Published online by Cambridge University Press:  07 July 2009

P. de Vries Lentsch
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Extract

The Convention on the Law of the Sea is the result of almost ten years of negotiation at the Third United Nations Conference on the Law of the Sea. Three factors largely explain the length of the negotiations, namely: (1) the conflict of interests between the coastal states and the maritime states, including the military interests of the US and the USSR;(2) the divergent positions on the future regime for sharing resources found on the ocean floor held by the developing countries and the industrialized states, and (3) the problems connected with incorporating the interests of the land-locked countries into a convention on the law of the sea.

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Netherlands Yearbook of International Law , Volume 14 , December 1983 , pp. 165 - 225
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Copyright © T.M.C. Asser Press 1983

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References

1. UN Doc. A/Conf.62/122 (7 October 1982); during the Final Session of the UNCLOS III (held in Jamaica, 6–10 December 1982) 117 states and two other entities signed the 1982 Convention on the Law of the Sea, including the Netherlands, Indonesia, Malaysia and Singapore. See XXI ILM (1982) p. 1261 et seq., and p. 1477. Some time after the final session, Japan signed the Convention too. Among the 24 states also present at this session but not willing to sign the Convention were the United States, the United Kingdom and the Federal Republic of Germany. As an alternative to the Convention, or perhaps an interim solution until its entry into force, these states and France concluded a “Mini-Treaty”. Nevertheless, this treaty is much more limited in scope then the US initially proposed. It provides only for procedures in case of overlapping claims by sea mining companies which apply for exploitation permits under the national laws of the states concerned.

The text of the 1982 Convention was adopted earlier by 130 votes in favour. However, 17 states abstained, including the Netherlands and the East European countries, and four states voted against, including the United States. See UN Doc. A/Conf.62/SR.182 (3 June 1982) pp. 9–10. Since the Reagan Administration came to power, the United States has held the view that the 1982 Convention provides for too wide powers for the Seabed Authority; this Authority will be given the management and control of the exploration and exploitation of the international sea-bed area under the Convention, at the expense of private sea mining companies. Oxman points out that without the United States the Convention cannot pretend to establish a worldwide régime of the law of the sea. See Oxman, B.H., “The third United Nations Conference on the Law of the Sea: The 10th Session (1981)”, 76 AJIL (1982) pp. 1–23.CrossRefGoogle Scholar

2. These are: 1. The Convention on the Territorial Sea (and the Contiguous Zone); 2. The Convention on the High Seas; 3. The Convention on Fishing and Conservation of the Living Resources of the High Seas; 4. The Convention on the Continental Shelf; Art. 311(1) of the 1982 Convention provides that “this Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 1958”. Rao submits that this provision is not in conformity with the spirit of the negotiations which would show that the negotiating states implicitly intended to abrogate the 1958 Conventions. See Rao, K.N., “Need there be two parallel legal régimes on the seas?”, 20 IJIL (1980) pp. 616–621Google Scholar. Nevertheless, there can be little doubt as to the meaning of the said provision.

3. Art. 10 of the Convention on the Territorial Sea and the Contiguous Zone.

4. Art. 2(1) and Art. 49(1) and (2) of the 1982 Convention.

5. Some scholars call it a “servitude”.

6. Art. 14(1) of the Convention on the Territorial Sea.

7. For a different view, see Whiteman's, Digest of International Law, Vol. 4(1965) pp. 459–463 at p. 460Google Scholar: “…the weight of available authority appears to have adopted the view that a right of passage in the superjacent air over international straits is recognized by international law.”

8. Art. 14(4) of the Convention on the Territorial Sea (“Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State…”) in conjunction with Art. 16(1) and (3).

9. Art. 16(4) of the Convention on the Territorial Sea.

10. Agreement of 12 July 1966 (Trb.(1966) No. 180), amended by an exchange of notes on 8 August 1969 (Trb. (1969) No. 224), both registered with ICAO (ICAO Doc. 9307-LGB/347, p. 51).

11. Cf., Matte, N.M., “Who owns the air medium”, in Thesaurus Acroasium, Vol. X(1981) ed., Institute of International Public Law and International Relations of Thessaloniki, pp. 689–707Google Scholar. He suggests to speak henceforth of the “air medium” instead of “airspace” and considers this medium as not susceptible of ownership.

12. In this context Farhat even speaks of a fundamental human right of transit over land and through the sea and the air. See, Farhat, R., “Le droit de transit innocent ou droit de l'homme”, 27 Revue française de droit aérien (1973) pp. 284–289Google Scholar; see more or less on the same line: Gocdhuis, D., Handboek voor het luchtrecht (The Hague/Nijhoff, 1943) pp. 131–137.CrossRefGoogle Scholar

13. Slotemaker, L.H., Freedom of passage for international air services (Leyden/Sijthoff, 1932) at p. 3Google Scholar. He was referring here to the difficulty of guaranteeing public safety and health on the ground. The territorial sea originated from the thought of protecting the territory by a “belt of sea” along the shoreline of coastal states. Nevertheless, a comparable “belt of air” in a vertical sense is hardly conceivable because of the specific nature of the air medium.

14. La Paix de Versailles, la Documentation Internationale (Paris, 1934) p. 498.Google Scholar

15. In June 1980 146 states were parties to the Convention (ICAO Doc. 9285 Suppl. July 1980); states can become members of ICAO, which is a “specialized agency” of the United Nations, by ratification or accession to the Chicago Convention (Arts. 91 and 92 resp.).

16. Together with its technical Annexes the Convention is regarded as an all encompassing “code of the law of the air”.

17. First laid down in Article 1 of the Paris Convention on Air Navigation of 13 October 1919 (UN Doc.A/Conf. 13/37, p. 65). See also Article 2 of the 1958 Convention on the Territorial Sea which reads: “The sovereignty of a coastal state extends to the airspace over the territorial sea as well as to its bed and subsoil.”

18. Wassenbergh, H.A., Post-war international civil aviation policy and the law of the air (The Hague/Nijhoff, 1962) at p. 107CrossRefGoogle Scholar; Shawcross, Ch.N. and Beaumont, K.C., Air Law Vol. 1 (London/Butterworth, 1977) at p. 181Google Scholar; Bin, Chen, The Law of international air transport (London/Stevens & Sons Ltd, 1962) at p. 120.Google Scholar

19. According to Shawcross and Beaumont, op.cit in n. 18 at p. 185, this definition covers only those territories over which a state's sovereignty has been recognized in international law, or by another state with which a question on this issue arises.

20. By early 1972 more than 90 states claimed territorial seas of 12 miles or more. See Shekhar, Ghosh, “The legal regime of innocent passage through the territorial sea”, 20 IJIL (1980) pp. 216–242, at p. 222.Google Scholar

21. See Shawcross and Beaumont, op.cit. in n. 18 p. 182; see also Burke, W.T., “Submerged transit through straits: interpretations of the proposed law of the sea text”, 52 Washington Law Review (1977) pp. 193–225 at p. 194Google Scholar (note 6). In this context Moore observes: “Additionally, if UNCLOS is creating a custom concerning a 12-mile limit, it is simultaneously creating custom for transit passage of straits, as these issues have been linked at every stage of the negotiation”. See Moore, J.N., “The regime of straits and the third United Nations Conference on the Law of the Sea”, 74 AJIL (1980) pp. 77–121, at pp. 115–116.CrossRefGoogle Scholar

22. Usually in bilateral air services agreements of the so-called “Bermuda” type, after the example of the air services agreement of 11 February 1946 between the United States and Great Britain. The present number of bilateral air services agreements is approximately 2500! Multilateral treaties are: The International Air Services Transit Agreement and the Air Transport Agreement concluded jointly with the Chicago Convention in 1944.

23. The Convention itself does not contain a definition of “schedules international air service”, but the ICAO Council defined it as follows: “A series of flights which possesses all the following characteristics: (a) It passes through the airspace over the territory of more than one state; (b) It is performed by aircraft for the transport of passengers, mail or cargo for remuneration, in such a manner that each flight is open for use by members of the public; (c) It is operated, so as to serve traffic between the same two or more points, either (i) according to a published time-table or (ii) with flights so regular or frequent that they constitute a recognizable systematic series” (ICAO Doc. 7278-C/841 (1952)).

24. In 1951 the ICAO secretariat made a statement in which it confirmed that the Contracting States had unlimited discretionary powers to set rules, conditions and restrictions with respect to non-scheduled air services over their respective territories. See ICAO Doc. AT-WP206 (27 February 1951) and 727C/841 (10 May 1952). Goedhuis took a strong stand as early as 1952 against this state practice, invoking the principle of Pacta sunt servanda. See Goedhuis, D., in Rechtskundige opstellen aangeboden aan Prof. Mr. R.P. Cleveringa (Zwolle/Tjeenk Willink, 1952) at p. 114 et seq.Google Scholar

25. Art. 14(4) provides that passage through the territorial sea either for the purpose of only traversing that sea, or entering or returning from internal waters through that sea is innocent “so long as it is not prejudicial to the peace, good order or security of the coastal state.” As the wording of this clause is not very precise, it leaves the coastal state a rather wide discretion as to its interpretation. In the 1982 Convention the corresponding clause has been specified by compiling a (non-exhaustive) list of activities of foreign ships covered at any rate by the term “non-innocent” (Art. 19 of the Convention).

26. In this zone the coastal state may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea. According to Article 24 of the Convention on the Territorial Sea of 1958 the contiguous zone may not extend beyond 12 miles from the baseline from which the breadth the territorial sea is measured; the Convention of 1982 changed this into 24 miles (Art. 33).

27. See Kay, Hailbronner, Der Schutz der Luftgrenzen im Frieden (Cologne, Bonn/Heymann, 1972), pp. 73–75.Google Scholar

28. Murchison, J.T., The contiguous air space zone in international law (Dept. of National Defense, Canada, 1957) at p. 76Google Scholar; Cooper, J.C., “Contiguous zones in aerospace law – prevention and protective jurisdiction”, in Vlasic, , ed., Explorations in Aerospace Law (1968) at p. 317Google Scholar; Bishop, , International Law (2nd ed. 1962) at p. 533.Google Scholar

29. In the Caroline case it was described as: “a necessity of self-defense, instant, overwhelming, leaving no choice of means and no amount of deliberation … limited by that necessity and kept cleanly within it”. See Jennings, R.Y., “The Caroline and McLeod Cases”, 21 AJIL (1938) pp. 82 et seq.. See further Murchison, op. cit. in n. 28 pp. 60–66, and Hailbronner, loc. cit. in n. 27 pp. 94–97.CrossRefGoogle Scholar

30. See Murchison op.cit. in n. 25 pp. 51–52.

31. Delupis, I., “Passage through air”, in International law and the independent state (Essex/Epping, 1974) at p. 82.Google Scholar

32. McDougal, M.S. and Burke, W.T., The Public Order of the Oceans (1962) at p. 626Google Scholar (note 194a). See also Hailbronner, K., “The legal regime of the airspace above the exclusive economic zone”, 8 Air Law (1983) pp. 30–44, at p. 43Google Scholar. Poulantzas differentiates: in his opinion enforcement measures upholding ADIZ regulations may be exercised in the airspace above the territorial sea and the contiguous zone only, not further. See Poulantzas, N.M., The right of hot pursuit in international law (Leyden/Sijthoff, 1969) at p. 345.Google Scholar

33. Hailbronner, op.cit. in n. 27 pp. 109–110. McDougal, , Lasswell, and Vlasic, , Law and Public Order in Space (New Haven, London/Yale University Press, 1963) at p. 310Google Scholar: “Only those ADIZs which are reasonable”. Denaro, J.M., “States' jurisdiction in aerospace under international law”, in 36 JALC (1979) pp. 688–728, at p. 713.Google Scholar

34. McDougal and Burke, op.cit. in n. 32 p. 786. However, there were some protests against the French enforcement measures upholding the French ADIZ on account of an incident involving a Russian aircraft.

35. See for an interesting general analysis of the formal requirements for rules of customary law to come into being: Meijers, H., “How is international law made? – The stages of growth of international law and the use of its customary rules”, 9 NYIL (1978) pp. 3–26.CrossRefGoogle Scholar

36. Matte, N.M., Deux frontières invisibles: de la mer territoriale à l'air ‘territorial’ (Paris/Pedone, 1965) at pp. 133–134Google Scholar; Poulantzas, op.cit. in n. 32 p. 272; Bin Cheng, op.cit. in n. 18 p. 121; Denaro, loc.cit in n. 33 p. 701.

37. See also Art 87 of the 1982 Convention.

38. It shall be exercised under the conditions of the articles of the Convention itself and other rules of international law and with reasonable regard to the interests of other states in their exercise of the freedom of the high seas (Art. 2 of the Convention on the High Seas).

39. Arts. 14 and 15 of the Convention on the High Seas; compare Arts. 100–107 of the 1982 Convention.

40. Art. 23 of the Convention on the High Seas; compare Art. 111 of the 1982 Convention. The right of “hot pursuit” is the right of the coastal state to pursue a foreign ship which has violated the rules and regulations of this state and continue the pursuit on the high seas and to arrest it, only if such pursuit started while the ship in question was in the internal waters, territorial sea, or the contiguous zone.

41. Poulantzas even submits that the right of hot pursuit of foreign aircraft is a rule of customary law in statu nascendi (Op cit. in n. 32 p. 347). See also McDougal, Lasswell and Vlasic, op.cit in n. 33 p. 310. Hailbronner considers the right of hot pursuit of foreign aircraft above the pursuing state's territory, territorial sea and contiguous zone lawful only for the purpose of establishing the identity of the offending aircraft, not to force it to a landing or to return (Op.cit. in n. 27 pp. 104–109).

42. The Counril is composed of 33 Member States (See Art. 50 of the Chicago Convention), again including the Netherlands, since 23 September 1980. See further Arts. 54 and 55 of the Chicago Convention stating the various functions of the Council.

43. Also called “SARPS”. In general, “Standards” are considered as necessary for the safety or regularity of international air navigation and “Recommended Practices” as desirable in the interest of safety, regularity or efficiency of international air navigation (Definitions in ICAO Assembly Res. A22–18, Appendix A, ICAO Doc. 9215 (1977) and, for instance, in the “Foreword” to each of the Annexes). The SARPS become effective after adoption or amendment by the Council, unless a majority of the contracting states register their disapproval with the Council within a given period (in general three months) (Art. 90(a) of the Chicago Convention). This decision-making method is known as the method of presumed consent or tacit acceptance. Generally the SARPS have to be incorporated in the national legislations of the respective Contracting States.

44. Art. 12 of the Chicago Convention reads: “… Over the high seas the rules [of the air] in force shall be those established under this Convention …”

45. ICAO Res. A14–25, provision I-(6); also in Res. A22–18, Appendix P (ICAO Doc. 9215) and Res. A.23–11 Appendix P (ICAO Doc. 9316 (1980)).

46. The objectives of ATS are, more presicely: to prevent collisions between aircraft, to ensure the orderly flow of air traffic, to provide useful information for the safe and effective performance of flights, to warn and assist “search and rescue” organizations in case of aircraft in distress, Flight Information Service, Alerting Service, Airspace Organization and Coordination between the various Services.

47. Foreword to Annex 2, adopted originally in April 1948; see also the Council Resolution in ICAO Doc. 7310-C/846 (1952) p. 28.

48. Heller, P.P. – “Air space over extended jurisdictional zones”, in Gamble, J.K., ed., Neglected Issues in Maritime Law (University of Hawaii/Law of the Sea Institute, 1979) at p. 138Google Scholar; Buergenthal, Th., Law-making in the ICAO (Syracuse University Press, 1969) at pp. 82–85.Google Scholar

49. Definitions in ICAO Lexicon.

50. For instance: Eurocontrol controls the higher layers of airspace over Belgium, Luxembourg and the northern part of the Federal Republic of Germany.

51. In general called: “Procedures for Air Navigation Services” (PANS), with a worldwide application, and “Regional Supplementary Procedures” (SUPPS), with an application in specific regions. They are regarded as not yet having attained a sufficient degree of maturity for adoption as SARPS, as too detailed for incorporation in an Annex, or susceptible to frequent amendment, for which the procedures of the Chicago Convention would be too burdensome. Sec Bin Cheng, op.cit. in n. 18 pp. 70–71.

52. See Wassenbergh, H.A., “Staten zijn gedwongen het luchtverkeer te garanderen”, in NRC-Handelsblad of 18 August 1981, referring to the strike of U.S. air traffic controllers.Google Scholar

53. ICAO Res. A23–12 (Doc. 9316), titled: “Contingency measures for application in the event of disruptions of air traffic services and related supporting services.”

54. Without any consultation with Turkey Greece declared the Athens-FIR, covering almost the entire Aegean Sea, a “dangerous area”, apart from a few air corridors. In addition, it reserved a number of areas exclusively for military training purposes and made it impracticable for Turkey to conduct its own military operations in the international airspace above the Aegean Sea (See Sazanidis, Chr.Z., “The Greco-Turkish dispute over the Aegean Airspace”, in 1 HRIR (1980), pp. 87–122).Google Scholar

55. It must be admitted, though, that Greece asserts that the greater part of the Aegean Sea is not high seas.

56. In ICAO Res. A21–22 (Doc. 9124, in force since 15 October 1974), titled: “Consolidated statement of continuing policies and associated practices related specifically to air navigation”, Appendix N (“Delimitation of ATS-airspaces in Regional Air Navigation Plans”), repeated in Res. A22–18 (Doc. 9215 (1977) and in Res. A23–11 (Doc. 9316 (1980)).

57. Working Paper of the Technical Commission during the 22nd session of the ICAO Assembly (Doc. A22-WP/40 TE/3 (3 August 1977)).

58. Res. A22–18, Appendix N clause 6 (Doc. 9215 (1977)).

59. See note 44.

60. See Matte, op.cit. in n. 36 p. 133.

61. Heller, loc.cit; in n. 48 pp. 135–153; a number of coastal states have claimed an “exclusive economic zone”, initially merely with the aim of fishing (the preferential right of a coastal state in a “fishing zone” up to 200 miles off its coast is already part of customary international law), but later also with the purpose of exploring and exploiting all natural resources in, on and above the sea-bed. The 1982 Convention contains a detailed enunciation of the EEZ, which may not extend beyond 200 miles measured from the baselines (Arts. 55- 75)

62. Schwenk, W., “Die Anwendung luftrechlicher Vorschriften bei Flügen von und nach Schiffen und Borinseln”, 25 ZLW (1976) pp. 234–242, at p. 234Google Scholar. Hailbronner observes in this context: “…in order to avoid air navigation hazards, it seems to be reasonable that a coastal State may require foreign aircraft to comply with its national air navigation legislation as far as flights and manoeuvre over such installations are concerned.” (Loc.cit. in n. 32). p. 37).

63. Heller, loc.cit. in n. 48 pp. 151–152; Heller, P.P., “Flying over the Exclusive Economic Zone”, ZLW (1978) pp. 15–17, at p. 17.Google Scholar

64. Matte, N.M., Traité de droit aérien-aéronautique (Paris/Pedone, 1964) at p. 102Google Scholar; J.C. Cooper expressed his view as follows: “What is sauce for the goose is not necessarily sauce for the gander”, quoted by Murchison, op.cit in n. 28 p. 24. According to Denaro it is no postulate of customary international law that the régime of a column of airspace should always be the same as that of its subjacent area (Loc.cit. in n. 33 p. 700).

65. See Hailbronner who, in my view correctly, makes a tentative exception for flights and manoeuvre of foreign aircraft over installations in the EEZ only (Loc.cit. in n. 62).

66. See for a general analysis of this subject for instance: Mochtar, Kusumaatmadja, “The legal regime of Archipelagos: Problems and Issues“, in Alexander, L.M., ed., The law of the sea: Needs and interests of developing countries (Kingston/University of Rhose Island, 1973)Google Scholar and Natabaya, A.S., “The archipelagic principles and Indonesia's interests”, 6 Indonesian Quarterly (1978) pp. 65–79.Google Scholar

67. Laws and Regulations on the Regime of the Territorial Sea, UN Legislative Series 1957 Vol. I, pp. 193–201Google Scholar (Un Doc. ST/LEG/SER.B/6).

68. The Indonesian archipelagic waters comprise 660.000 nautical miles2. To this amount another 98.000 nautical miles of territorial sea is added. As a consequence Indonesia will become 4 times as large! See Dubner, B.H., The law of territorial waters of mid-ocean archipelagos and archipelagic states (The Hague/Nijhoff, 1976) at p. 64.CrossRefGoogle Scholar

69. Quoted by Syatauw, J.J.G., Some newly established Asain states and the development of international law (The Hague/Nijhoff, 1961) at pp. 173–174Google Scholar. See also UN Doc. 19/51 Add. 1 (1960) pp. 3–4.

70. See O'Connell, D.P., “Mid-ocean archipelagos in international law”, 45 BYIL (1971) pp. 1–77, at p. 40Google Scholar; though other translations use the word guaranteed instead of granted.

71. See Whiteman's, Digest of International Law Vol. 4 (1965) pp. 283–291Google Scholar and O'Connell, loc.cit. in n. 70 at pp. 60–69.

72. Michael, Leifer, Malacca, Singapore and Indonesia (Alphen a/d Rijn/Sijthoff & Noordhoff, 1978) at p. 23.Google Scholar

73. See Syatauw, op.cit. in n. 69 at p. 184. See also Priyatna, Abdurrasyid, Kedaulatan negara di ruang udara [State sovereignty in airspace](Jakarta/Air and Space Law Research Centre, 1972) Summary at pp. 176–177.Google Scholar

74. Of the four Conventions on the Law of the Sea of 1958 (See note 2) Indonesia has ratified only the Convention on the High Seas.

75. This method was permitted to be used only by coastal states with a coastline deeply indented and cut into (carrying an inter fauces terrarum character) or states with a fringe of islands along the coast in its immediate vicinity, as provided in article 4 of the said Convention which was drafted as a consequence of the decision of the ICJ in the Anglo-Norwegian Fisheries case of 18 December 1951 (ICJ Reports 1951)Google Scholar; the original architect of the Indonesian archipelago principle, Mochtar Kusumaatmadja, based his ideas on this decision (See Leifcr, op.cit. in n. 72 at p. 7 and p. 133); compare also Art. 7 of the 1982 Convention.

76. UN Doc. A/AC.138/SC II/L.48. See also ILM (1973) p. 581.

77. GA Res. 2467 A(XXIII). The original name of the Committee is: Committee on the peaceful uses of the seabed and the ocean floor beyond the limits of national jurisdiction.

78. UN Doc. A/Conf. 62/C.2/L.49. See also Rajan, H.P., “The 1973 draft articles on archipelagos by Fiji, Indonesia, Mauritius and the Philippines analysed”, 14 OIL (1974) pp. 230–244.Google Scholar

79. Single Negotiating Text (SNT) UN Doc. A/Conf. 62/WP 8. It was succeeded by the “Informal Composite Negotiating Text” (ICNT) in 1977 (A/Conf.62/WP 10 of 5 July 1977) which, through several revised editions of the text and a “Draft Convention”, resulted in the present Convention on the Law of the Sea of 1982.

80. The Soviet Union proposed “unimpeded overflight” (See UNCLOS III Official Records Vol. II, p. 267Google Scholar and UN Doc. A/AC.138/SC II/L.7). See also the general statement made by MrEnnals, (United Kingdom) in UNCLOS III Official Records VoL I, p. 112 (29th plenary meeting).Google Scholar

81. Such as: nuclear powered ships, ships carrying nuclear substances or dangerous materials, fishing vessels, research and hydrographic ships and tankers.

82. Leifer, op.cit. in n. 72 at p. 144.

83. Art. 53(2) of the 1982 Convention reads: ”…all ships and aircraft…”

84. Compare Denaro in this respect: he discerns distinct degrees of sovereignty and jurisdiction. He observes that “the domestic jurisdiction of a state admits two basic degrees of postulation: that of exclusiveness and that less then such. And that which is less than such, because of that very quality, may be appropriately labelled a ‘discrete claim’.” He explains the term ‘discrete claim’ as: “a word of art to signify any jurisdictional claim which is less than exclusive and complete and which is asserted over a particular object or activity for a specified purpose.” (Loccit. in n. 33 at p. 699 (note 54), p. 701 and 705).

85. See note 75.

86. ICJ Reports (1951) p. 132.Google Scholar

87. See note 75.

88. Since 1869 Norway had continuously asserted and the international community had tolerated the exclusive control of the area within the skjaergaard.

89. Juridical regime of historic waters, including historic bays (UN Doc. A/CN.4/143, New York, 1962) at p. 45.Google Scholar

90. Compare Judge Reid's dissenting opinion in the Fisheries case (ICJ Reports (1951) p. 116 and p. 191)Google Scholar: “The only convincing evidence of State practice is to be found in the seizures, where the coastal state asserts its sovereignty over the waters in question by arresting a foreign ship and by maintaining its position in the course of diplomatic negotiation and international arbitration.”

91. ILC, op.cit. in n. 89 at p. 43.

92. PCIJ, Ser. A, No. 10 (1927).

93. O'Connell. loc.cit. in n. 70 at pp. 60–69. See also ILC, op.cit. in n. 89.

94. Priyatna, op.cit. in n. 73 at pp. 178–179 (the so-called Teori Kerukunan, the Theory of Harmony).

95. See note 75.

96. Sørensen, M., “The territorial waters of archipelagos”, in Varia Juris Gentium, Liber Amicorum dedicated to François (Leyden/Sijthoff, 1959) at p. 315 and pp. 324–327.Google Scholar

97. CAB vs. Island Airlines, Inc. 235 F. Supp. 990 (8 October 1964)Google Scholar. See also 59 AJIL (1965) pp. 635–642.

98. Rules of Procedure of UNCLOS III, Appendix (UN Doc. A/Conf. 62/30/Rev.l). Compare Art. 161(7) under (e) of the 1982 Convention which defines “consensus” (however, “for the purpose of subparagraph (d)”) as: “The absence of any formal objection.”

99. See note 35. The three stages are: “ 1. A rule has to be formed through the medium of states, which is appropriate for the regulation of future conduct of states; 2. Within the relevant states, the will has to be formed that the rule will become law if the relevant number of states who share this will is reached, and from the moment that the third stage is completed [More commonly known as the requirement of the opinio iuris sive necessitatis]; 3. It must be cognoscible for all states for whom the rule may become law that the will mentioned above has been formed by the required number of states.”

100. ICJ Reports: (1969) p. 43.Google Scholar

101. See note 71.

102. ICJ Reports (1951) p. 131.Google Scholar

103. Whiteman's, Digest of International Law Vol. 4 (1965) at pp. 284–285Google Scholar; Keesings Historisch Archief (Dutch version of Keesings Contemporary Archives) No. 1386 (13–19 January 1958) at p. 13774.Google Scholar

104. In this context he refers to the right of every coastal state to claim a “fishing zone” extending up to 200 miles off the coast (Loc.cit. in n. 35, at p. 22 (note 50)).

105. Often referred to as the rule of presumed consent or tacit acceptance.

106. Compare Moore's observation quoted in note 21 on the “customary link” between the 12-mile limit of the territorial sea and the right of transit passage.

107. Priyatna makes reference to actual violations of the Indonesian Decree No. 4 of 1960, but submits later that Indonesia never received any objections, especially after 1966, to the “Doktrin Nusantara”, the archipelago principle as embodied in the Decree. See Priyatna, op.cit. in n. 73 at pp. 140 and 157, and English summary at pp. 179 and 181.

108. supra, p. 172.

109. ICJ Reports (1969) p. 43.Google Scholar

110. ICJ Reports (1974) p. 25.Google Scholar

111. Trb. (1966) No. 180.

112. Art. 11 of the Agreement of 1966; text of the 1969 Protocol in Trb. (1969) No. 224.

113. The Agreement of 1966 defines “territory” as “the land areas and territorial waters adjacent thereto under the sovereignty of a state”. The Protocol of 1969 employs the definition of “territory” laid down in Article 2 of the Chicago Convention. Art 1(d) of the Agreement of 1966 and the Protocol of 1969 respectively (see note 112). See for the Chicago definition of “territory”: supra.

114. The modification introduced by the Protocol related to some (parts of) articles of the Agreement, of which the Arts. 1 and 2 are the most significant; in addition it related to the routes structure in the Annex of the Agreement.

115. At the time of writing, KLM operates services from Colombo to Singapore which run partly across Indonesian territory, other air services from Singapore to Jakarta and vice versa, and, as a consequence of the aforementioned prohibition, air services from Colombo to Australia around the Indonesian archipelago.

116. In this case Art. 12 of the 1966 Agreement.

117. Art. 44(2) in conjunction with (3) under (a), (b) and (c) of the Vienna Convention, of which paragraph 3 under (a) provides: “…where the said clauses are separable from the remainder of the treaty with regard to their application.” If separation would be considered as lawful in the present case, the Protocol contains no provision regarding its termination. In that case the Protocol is subject to termination only if it was the intention of the parties to admit the possibility of termination or if a right of termination was implied by the nature of the Protocol (See Art. 56 of the Vienna Convention).

118. Art 44(2) in conjunction with Art. 60 of the Vienna Convention.

119. Brownlie, I., Principles of public international law (Oxford/Clarendon Press, 1979) at p. 601.Google Scholar

120. Part V is titled: “Invalidity, Termination and Suspension of the Operation of Treaties”. See further, for instance, Nahlik who considers Art. 44, inter alia, as not codifying customary law nor as a “general principle of law recognized by civilized nations”, since it introduces rights and duties which are too “disparate” to engender obligatory rules. See Nahlik, S.E. “La Conférence de Vienne sur le droit de traités. Une vue d'ensemble”, 15 Annuaire François de Droit International (1969) pp. 24–53CrossRefGoogle Scholar, referred to by Vierdag, E.W. in his outstanding article “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 (1982) pp. 779–797.CrossRefGoogle Scholar

121. As far as the Netherlands is concerned neither the Protocol, nor the 1966 Agreement has been terminated.

122. It should be noted, though, that Indonesia may decide to regrant permission for such overflight after termination of the Protocol.

123. See Art. 9(b) of the Chicago Convention which reads: “Each Contracting State reserves also the right, in exceptional circumstances or during a period of emergency, or in the interest of public safety, and with immediate effect, temporarily to restrict or prohibit flying over the whole or any part of its territory, on condition that such restriction or prohibition shall be applicable without distinction of nationality to aircraft of all other States.”

124. Comparable to the principle of customary maritime law which provides that charges other than for services rendered to a ship are considered as impeding the innocent passage (See for instance Art. 26 of the 1982 Convention); However, in the view of Indonesia Art. 15 of the Chicago Convention is applicable, once a right of overflight has been granted. The Indonesian position is that the Chicago Convention was conceived solely for non-scheduled air services and that the Convention is applicable to scheduled air services only if a bilateral air services agreement makes reference to the Convention. In the present case Indonesia terminated the 1969 Protocol with the Netherlands for the purpose of demanding compensation for regranting a right of overflight (Information received from the Dutch Civil Aviation Authorities).

125. For instance: Loy, F.E., “Bilateral air transport agreements: Some problems of finding a fair route exchange”, in McWhinney, E. and Bradley, M.A. (Eds.) The freedom of the air (Leyden, Dobbs Ferry N.Y./Sijthoff, Oceana Publications Inc., 1968) at p. 177Google Scholar and Cathalina, E. - “Commentaar c”, in Meijers, H. (Ed.), Volkenrechtelijke aspecten van Antilliaanse onafliankelijkheid (Alphen a/d Rijn/Tjeenk Willink, 1980) at p. 359Google Scholar. Cathalina considers any benefit negotiable in consultations on air transport.

126. Ordinance No. 7, 2 Aug. 1969/3 Oct. 1971, see Limits in the Seas, No. 36 (Op.cit. in n. 202) p. 106.Google Scholar

127. Leifer, op.cit. in n. 72 at p. 30.

128. Leifer, op.cit. in n. 72 at p. 48 and p. 204.

129. UN Doc. A/Conf.13/C.1/L.39, in UNCLOS I Official Records Vol. III, p. 94.Google Scholar

130. Sec note 74.

131. As a consequence of a dispute between Great Britain and Albania concerning the navigation of British warships through the Albanian part of the Corfu Channel, the ICJ considered: “It is, in the opinion of the Court, generally recognized and in accordance with international custom that states in time of peace have the right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal state, provided the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal state to prohibit such passage in time of peace.” (ICJ Reports (1949) p. 28).Google Scholar

132. The Arab coastal states closed the Gulf of Aquaba and its narrow entrance so that the Israeli port of Eilat could be reached only through foreign territorial waters. See Bloomfield, , Egypt, Israel and the Gulf of Aquaba in international law (1957).Google Scholar

133. See supra, text accompanying n. 78.

134. UN Doc. A/AC.138/SC.II/L. 18.

135. See the statement made by Mr. Vorrah (Malaysia) in which he objects to a right of overflight over the Straits of Malacca (UN Doc. A/AC.138/SC.II/SR.11, pp. 87–88).

136. Leifer, op.cit. in n. 72 at p. 48; Keesing's Contemporary Archives (1971-1972) p. 25260A.Google Scholar

137. See Mani, V.S. and Balipuri, S., “Malacca Straits and international law”, 13 IJIL (1973) pp. 455–467.Google Scholar

138. See Draft Articles (United Kingdom) in UN Doc. A/Conf.62/C.2/L.3.

139. In return for a commitment by the maritime nations to support the resolution providing for a traffic separation scheme in the Straits of Malacca and Singapore (IMCO Assembly Resolution of 14 November 1977).

140. Quoted by Leifer, op.cit, in n. 72, at p. 145, however, without mentioning of a further source.

141. E.g., the Straits of Sunda, Sumba and Lombok (See map 1).

142. The present Part III of the 1982 Convention, titled: “Straits used for international navigation”.

143. UN Doc. A/Conf.138/SC.IJ/L.40, idem/L.7 and A/Conf.62/C.2/L.3 respectively. See also the statement made by Mr. Moore (United States) in UNCLOS III Official Records Vol. II, p. 128 (12th meeting of the Second Committee).Google Scholar

144. Compare the statement made by MrMunoz, Lacleta Y (Spain) in UNCLOS III Official Records Vol. II, p. 137Google Scholar (14th meeting of the Second Committee): “…they [the proposals] provided for freedom of overflight in transit for all types of aircraft, whether civil or military, over the straits. That would be tantamount to amending the Convention on International Civil Aviation, signed at Chicago in 1944, which required prior authorization of the state concerned for the overflight by military aircraft of its territorial sea, of which straits formed a part”

145. See Leifer, op.cit. in n. 72 at pp. 157–158. In Leifer's opinion the real reason behind this refusal was Malaysia's desire to establish a negotiating asset in securing improved landing rights in London for its own national airline.

146. See infra.

147. The term “expeditious” means: not slow, with an average speed. Burke observes with respect to the term “continuous and expeditious transit” that “vehicles are not to sojourn in waters outside ports nor to engage in maneuvers and operations other than simple movement through the area. Hence this term signifies that archipelagic passage does not authorize the same operations as does the right of freedom of navigation on the high seas” (W.T. Burke, loc. cit. in n. 21 at p. 218).

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148. Art. 25 of the Chicago Convention reads: “Each Contracting State undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable …”

149. See Hingorani, R.C., “Aerial intrusions and international la”, 8 NTIR (1961) pp. 165–169, at p. 167.Google Scholar

150. See supra; ICAO Res. A23–11, Appendix 0 (1980).

151. See Search and Rescue Manual (3rd ed. 1970, ICAO Doc. 7333-AN/859).

152. For rules of procedure for intercepting civil aircraft, see Appendix A of the Report of the Air Navigation Commission of ICAO (ICAO Doc. C-WP/4411); see also Attachment A of Annex 2 to the Chicago Convention (7th ed., July 1981).

153. Art. 3(b) of the Chicago Convention which reads: “Aircraft used in military, customs and police services shall be deemed to be State aircraft”

154. Kuribayashi assumes this from the start. See Kuribayashi, T., “The basic structure of the new regime of passage through international straits – An emerging trend in the third UNCLOS and Japan's situation”, 20 Japanese Annual of International Law (1977) pp. 29–47 at p. 39.Google Scholar

155. Art. 212(1) of the 1982 Convention provides that states which adopt these laws and regulations shall take into account internationally agreed rules, standards and recommended practices and procedures, and the safety of air navigation.

156. ICAO Res. A22–12 (Doc. 9275, pp. I-38/39).

157. The words “inter alia“ have been omitted from the original text of the article under consideration, as suggested by Indonesia, among others, in UN Doc. A/AC.138/SC. II/L. 48. See the statement made by MrDjalal, (Indonesia) in UNCLOS III Official Records Vol. IIGoogle Scholar (36th meeting of the Second Committee). See also the statement made by MrTolentino, (Philippines) in UNCLOS III Official Records Vol. II, p. 264.Google Scholar

158. See Arts. 53(8) and (9) of the 1982 Convention.

159. In this sense for instance the British position in the El Al case. See ICJ Pleadings (1959) p. 358.Google Scholar

160. Hailbronner, op.cit. in n. 27 at pp. 48–52. See also, for instance, Shawcross and Beaumont, op.cit; in n. 18 at p. 183.

161. The Resolution reads: “The General Assembly, MINDFUL of incidents involving attacks on civilian aircraft innocently deviating from fixed plans in the vicinity of, or across, international frontiers, NOTING that such incidents cause loss of human life and affect the relations between states, and that the problem is therefore a matter of general international air concern, 1. CALLS upon all States to take the necessary measures to avoid such incidents; 2. INVITES the attention of the appropriate international organizations to the present resolution and the debate on the matter held in the General Assembly at its tenth session.”

162. See Whiteman's, Digest of International Law Vol. 9 (1968) pp. 326–336.Google Scholar

163. See Burke, W.T., Contemporary law of the sea: Transportation, communication and flight (Rhode Island/Law of the Sea Institute, Occasional Paper (28), 1975) at p. 8.Google Scholar

164. See note 155.

165. Burke holds the following view: “Perhaps the prohibition against impairing or hampering passage is to be interpreted as limiting enforcement action only to that essential to make coastal prescriptions effective and ruling out unnecessary or excessive measures not suitably aimed at preventing proscribed conduct.” See Burke, op.cit. in n. 163 at p. 8.

166. Burke, ibid.

167. See Kuribayashi, loc.cit. in n. 154 at p. 39.

168. As an exercise of the right of “self-defense and generally to take actions permitted by the UN Charter”. See Burke, quoted by Kuribayashi, loc.cit. in n. 154 at p. 40. Reisman submits that the state overflown may unilaterally determine when a particular transit violates this formula and that the transit may be prohibited or made conditional upon the fulfilment of certain requirements. See Reisman, W.M., “The regime of straits and national security: An appraisal of international lawmaking”, 74 AJIL (1980) at p. 48).CrossRefGoogle Scholar

169. Oxman, B.H., “The third United Nations Conference on the Law of the Sea; the 1977 New York Session”, 72 AJIL (1978) pp. 57–83, at p. 66.CrossRefGoogle Scholar

170. Burke, loc.cit. in n. 147 at p. 216.

171. See Part II, section 3 of the 1982 Convention.

172. See Burke, op.cit. in n. 163 at p. 26.

173. See infra.

174. UN Doc. A/Conf.62/WP.10, Article 53(3) (UNCLOS III).

175. Burke, loc.cit. in n. 147 at pp. 216/217.

176. Final clause of Art. 38(2) of the 1982 Convention.

177. Sec Art. 38 of the Chicago Convention, see supra.

178. See supra.

179. See Burke, W.T., Legatski, R. and Woodhead, W.W., National and International Law enforcement in the Ocean (1975) at p. 105Google Scholar, quoted by Kuribayashi, loc.cit. in n. 154 at p. 41.

180. Syatauw distinguishes, apart from Indonesia, the following states as archipelagic states: Bahrain, Barbados, Cuba, Cyprus, Fiji, Iceland, Jamaica, Japan, Madagascar, Malta, Mauritius, Nauru, New Zealand, Philippines, Singapore, Sri Lanka, Tonga, Trinidad and Tobago, and Western Samoa. See Syatauw, J.J.G., “Revisiting the archipelago – an old concept gains new respectibility”, 29 India Quaterly (1973) pp. 104–119, at p. 118 (note 40); this enumeration is, however, far from complete.Google Scholar

181. See the statement made by Mr. Djalal (Indonesia) in UNCLOS III Official Records Vol. II, p. 260 (36th meeting of the Second Committee).Google Scholar

182. The term is of Greek origin, but does not occur as such in the classical Greek language. The word is probably composed of the words αρχι (= chief, main) and Π∈λαγοα (= sea).

183. The treaty was signed on 25 February 1982 and relates in particular to parts of the South China Sea between and surrounding the island groups of Natuna and Anambas (See map 1). It was concluded as a result of Arts. 46 and 47(7) of the 1982 Convention and with the purpose of preventing a separation between continental West Malaysia and East Malaysia (Sabah and Sarawak). Leaving international navigation out of consideration, the treaty provides for sea and air corridors through and over the claimed archipelagic seas of Indonesia in the said area which may be followed by Malaysian ships and aircraft (Source: Dutch Ministry of Foreign Affairs). See also Keesings Contemporary Archives (27 August 1982) at p. 31666B.Google Scholar

184. Symmons holds the view that it appears from this significant omission that the “Article 4 régime” (i.e., the similar regime of areas where the straight baseline method is used in instances of deeply indented coastlines or “fringe of islands-coasts” provided by Art. 4 of the 1958 Convention on the Territorial Sea) merged into the more expansive archipelagic rŕgime and so is overridden by the latter. See Clive Symmons, R., The maritime zones of islands in international law (The Hague/Nijhoff, 1979) at p. 65.Google Scholar

185. See Art. 5 of the 1982 Convention.

186. Therefore also above straits situated completely within the archipelagic baselines.

187. Such as: The normal baselines – viz., the low-water lines along the coast (Art. 5 of the 1982 Convention), the straight baselines of coastal archipelagos and deeply indented coastlines (Art. 7), and the closing lines of mouths of rivers, bays and ports (Arts. 9, 10 and 11 respectively).

188. Goedhuis points at the difficulties existing at the time concerning the interpretation of the term “eaux territoriales adjacentes” in the Paris Convention on Air Navigation of 1919 and the Ibero-American Convention of 1926, both considered as predecessors of the Chicago Convention. In his view the term was used “in order to bypass conflicts which without any doubt should have resulted from a precise definition of the breadth of the coastal sea”. See, Goedhuis, op.cit. in n. 12 p. 36.

189. Art. 30(3) of the Vienna Convention on the Law of Treaties provides, that of two successive treaties relating to the same subject matter, the latter treaty prevails between the same parties. Nevertheless, this matter could be cleared by an amendment of Art. 2 of the Chicago Convention.

190. Chapter II of the Chicago Convention is titled: “Flight over territory of Contracting States.”

191. Under Art. 1 of the Chicago Convention the sovereignty of the underlying state is “complete and exclusive”. See, for instance, Goedhuis, op.cit. in n. 12 p. 37 and Pépin, E., The law of the air and the Draft Articles concerning the law of the sea adopted by the International Law Commission at its 8th session (Prep. Doc. no. 4, UN Doc. A/Conf. 13/4, in UNCLOS I Official Records Vol. I, at p. 65).Google Scholar

192. This solution is not without precedent. The freedom of overflight over the high seas has also been established solely in the law of the sea.

193. Supra.

194. See note 183.

195. Viz., in conformity: (a) with the one or the other of the different meanings of the legal norm, (b) with the will of the norm-creating authority that is to be determined somehow, (c) with the expression which the norm-creating authority has chosen, (d) with the one or the other of the contradictory norms; or (e) the concrete case to which the two contradictor) norms refer may be decided under the assumption that the two contradictory norms annull each other. See Kelsen, H., Pure theory of law (Berkeley and Los Angeles/University of California Press, 1967) at pp. 350–351.Google Scholar

196. See Burke, op.cit. in n. 163 p. 7.

197. Annex 4 contains provisions on, inter alia, the use of chart symbols, colours and scales on Aerodrome Obstruction Charts, Radio Navigation Charts. Instrument Approach Charts, Visual Approach Charts and Landing Charts.

198. According to Burke, op.cit. in n. 163 p. 7 (note 56).

199. The Compact Edition of the Oxford English Dictionary defines “navigation” as: “The action of navigating; the action or practice of passing on water, esp. the sea, in ships or other vessels”. See also Stroud's, Judicial Dictionary (4th ed., Sweet & Maxwell, 1978) pp. 1730–1731.Google Scholar

200. Compare the right of innocent passage of ships trhough the territorial sea which resulted from the freedom of navigation on the high seas.

201. See Burke, op.cit. in n. 163 p. 7.

202. In 1980 Indonesia proclaimed an EEZ in addition to its archipelagic configuration. See Declaration of 21 March 1980, see Limits in the Seas, No. 36: National Claims to Maritime Jurisdictions, 4th revision, 1981 (edited and compiled by Smith, R.W., issued by Office of the Geographer, Bureau of Intelligence and Research, US Dept of State), p. 84Google Scholar; see also Awanohara, S. and Tasker, R., “Indonesia's golden pond”, Far Eastern Economic Review (6 January 1983) p. 12.Google Scholar

203. The interrelationship of the rules relating to straits and those concerning archipelagos had already been established at the first UNCLOS in the “Evensen Preparatory Document no. 15 on Archipelagos” (UNCLOS I Official Records Vol. I) at p. 290Google Scholar. See also the British proposals (of 2 August 1973, in UN Doc. A/AC.138/SC.II/L.44) to the Sea-bed Committee in which a right of passage was proposed through international routes of navigation “as if they were straits”, in case the special archipelagic regime was not accepted. See also O'Connell, loc.cit in n. 70 p. 70 and p. 72: According to the claims of Indonesia and the Philippines most straits end, and indeed begin, not in parts of the high seas, but in waters that are claimed to be internal waters. O'Connell considers this passage, however, “in an extended sense” as a passage between two parts of the high seas. Also Oxman and Moore consider the right of transit passage and archipelagic sea lanes passage identical. See Oxman, loc.cit. in n. 169 p. 66 and Moore, loc.cit. in n. 21 pp. 110–111, respectively.

204. Archipelagic sea lanes passage has to be “continuous, expeditious and unobstructed” (Art 53(3) of the 1982 Convention).

205. Compare Art. 311(2) of the 1982 Convention: “This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment of other Parties of their rights or the performance of their obligations under this Convention.”

206. See Bin Cheng, loc.cit in n. 18 pp. 392–397.

207. See Art 38(1) of the 1982 Convention. “Of similar convenience” means probably: of similar navigational convenience as a route in the territorial sea of a strait used for international navigation, according to Kuribayashi. He observes further that it should be noted that the degree of “convenience” for ships is not necessarily the same for aircraft and vice versa, since the latter usually require wider areas for navigation than the former. See Kuribayashi, loc.cit, in n. 154 p. 35.

208. See Art. 35(c) of the 1982 Convention. For instance: The Convention of Lausanne (1923) concerning the flight over the Dardanelles, Sea of Marmara and the Bosporus, and the Convention of Montreux (1936) concerning the flight over the said straits between the Mediterranean and the Black Sea. See Whiteman's, Digest of International Law VoL 9 (1968) pp. 321–323.Google Scholar

209. Such route should then be used to exercise the freedom of overflight, (Art. 58 in conjunction with Art. 87 of the 1982 Convention).

210. Sec note 187.

211. Cf. note 75.

212. Art. 30(3) and (4) of the Vienna Convention on the Law of Treaties. Compare also Art 311(2) of the 1982 Convention.

213. Compare Art. 34(1) of the 1982 Convention: “The regime of passage through straits used for international navigation established in this Part (III) shall not in other respects affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and the air space, bed and subsoil.”

214. See Art. 38(3) in conjunction with (2), final clause, of the 1982 Convention. This final clause reads: “However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.” A similar provision is excluded from the definition of archipelagic sea lanes passage.