Compare Contrast and Critically Assess

Question: Discuss about the Compare, Contrast and Critically Assess the Legal Regimes Applicable Under the 1982 UN Convention on the Law of the Sea in the (Territorial Sea) and (Straits Used for International Navigation). Answer: Articles 37 and 38 of the United Nations convention on the Law of the Sea (1982)[1] defines an international strait has been described as a strait that is used for international navigation between a part of the high seas or an exclusive economic zone to other part of the high seas. In this way, this definition includes both the states that overlap the territorial sea of the bordering state or states at some point and also the states through which there is a continuous corridor of high seas or an exclusive economic zone.[2] In this way, a strait can be described as a natural waterway, which is a contraction of the sea between two territories that have very limited width. There are more than two hundred waterways in the world that can be described as international straits according to this definition. The transit presage regime: According to the LOS convention, there is a regime of transit concerning both the ships and aircraft passing through an international strait that overlaps the bordering territorial seas by at least at its narrowest part.[3] The meaning of the term transit presage, "which shall not be impeded" is that the exercise of the freedom of navigation and over flight only for the purpose of expeditious and continuous transit through the strait. However it needs to be mentioned that certain carefully drafted exemptions are present to the transit presage provisions that have been mentioned in the Convention. These exceptions have been mentioned below. The message of ships and aircrafts is to be allowed in their "normal mode" of transit.[4] This term can be integrated as having the meeting that for example the submarines may transit submerged, if the depth of the strait is sufficient to allow such an operation. This interpretation is consistent with the Third United Na tions Conference on the Law of the Sea (UNCLOS). Warships and military aircraft in transit presage: The law provides that while exercising their right of passage, ships and aircraft are required to proceed through or over the strait without any delay. However, the concept of transit message does not preclude the presage through the strait when it is being done for entering, leaving or returning from a State that borders the strait, although the conditions of entry to such a State may apply. When a ship or an aircraft is in transit message, it should avoid any threat or their use of the real force against the territorial integrity, sovereignty or the political independence of the State that borders the strait. In the same way, such ships or aircraft is required to refrain from the activities, except the activities that are incidental to the normal mode of expeditious and continuous transit, unless such an activity has been made necessary by distress or force majeure.[5] Under the present legal regime, it is required that the vessels in transit are required to comply with the international regulations, practices and procedures that are generally accepted for safety at sea and for the prevention and control of pollution created by the ships. The intention behind the introduction of these provisions is to ensure that the transit passage vessels comply with the international conventions that have been adopted by the International Maritime Organization (IMO) during the last d ecades and that now enjoy legal force.[6] Freedom of the sea doctrine: After 1945, the unlimited freedom enjoyed by the great maritime powers was challenged. When significant resources were discovered in the sea, particularly the discovery of oil under the sea,, an increase in the use of oceans and coastal fishery resources, which were increasingly threatened by better equipped and larger ships coming from distant water fishing states, there was a reaction from the smaller coastal states and it was found that the unlimited freedom of the great maritime powers was not adequate.[7] After the Second World War, there was a transformation in the international Society and the collapse of European colonialism. A large number of States became the new members of the international Society. More than 90 states acquired independence after 1945 and out of these days, a large number the coastal states. Therefore the international law had to take care of the interests of all these dates. Only some newly independent states have taken part i n the first (1958) and the second (1960) UN Conference on the Law of the Sea. But by that time they were not organized and politically strong to have an impact on the decisions of these conferences. The result was that they played a minor role. However during the third UN Conference on the Law of the Sea, which took place amid 1973 to 1982 for the purpose of regulating the new uses of the sea these developing nations were ready to play an important role.[8] These countries wanted that there should be a complete review of the international law of the sea. The result was that the major confrontation that took place at the UNCLOS III (1982) was not between East and West (or communism versus capitalism) , but it took place between the great maritime powers, which were technologically advanced and on the other hand, by the developing countries.[9] While the maritime powers wanted to ensure their security and also won the two maximize the benefits from the sea, as well as the new found re sources from the sea on the basis of their advanced technology, the developing countries were looking for more security and wanted to introduce changes in the traditional law for the purpose of developing new equitable rules related with the exploitation of the sea. Reasons behind this special regime: The regime related with the straits used for international passage is generally treated as being concluded during the negotiations related with the UN Conference on the Law of the Sea (1982), but it needs to be noted that a detailed study related with the major International Strait indicates that still there are certain outstanding problems at the local level, as well as some general problems. During these negotiations, it was found that the two superpowers, the United States of America and the USSR were in the same camp while developing countries that were located on the borders of these straits for in the opposite camp. During these negotiations, the position adopted by the maritime powers was that the issue of straits is non-negotiable, particularly as a result of the relationship that exists among the issue of the states and the various aspects of the law of the sea, especially the issue of territorial sea expansion. If the right to transit pas sage would not have been granted by the UNCLOS III Convention (1982) the territorial seas would have overlapped.[10] 116 international straits and the commercial and military transit would have been covered by the provisions of innocent passage. Although the transit passage was required by the maritime forces and particularly it was required under the comprehensive treaty by the United States and USSR, the main reason behind providing the transit rights. Is that these rights are in interest of all the members of the international community. There are several international states that are used by the shipping trade of the world as a route.[11] If the coastal states were allowed to have extended jurisdiction in these straits, it would have allowed them to unilaterally control or impose conditions on this significant community and as a result, there would be inequitable and insufficient freedom, which may have resulted in conflict. The transit through international straits is basically different from the transit through territorial sea and this position has been recognized by all the member states in their common interest.[12] On the other hand, if the transit through international straits was not recognized by the states as such, then the common interest would have eroded as a result of the unwarranted restrictions placed on transit, uncertainty of transit rights, discrimination by the users, efforts for achieving economic and political gain in return a message, inconsistent and inefficient regulations, increasing political tension and probability even military confrontation.[13] But at the same time, it also needs to be mentioned that in order to be fair and lasting, it is required that the straits regime should fulfill the interests of the strait states regarding the safety of navigation through these straits and also related to the protection of marine environment. In this way, a balance needs to be maintained between the interests of the strait states and the interests of naval powers and international community.[14] This will allow the promotion of security and common interest in the international system. Apart from the above mentioned fundamental basis behind the transit passage regime to international states, certain other factors of concern are also present, including strategic and commercial concerns. These include:- All states including the maritime powers, land locked states or the flag states are benefited as a result of uninterrupted movement of the vessels and cargo throughout the world and also through the international straits. In this way, the free transit through international straits is beneficial for international trade and also for the national strategy in case of some nations. The industrialized nations, as well as several developing countries also rely on the supply of oil through tankers, which in many cases as to pass through international straits.[15] The submarines are designed for running submerged. Therefore, this is the normal mode for the submarines. On surface, these submarines unless maneuverable and similarly, the collision avoidance systems are also less efficient.[16] Even in case of good visibility, they are hard to see and thay are represented by a small, even misleading radar target for the other ships so that they may avoid them. They are also required to travel in high density traffic along with the increased risk of collision.[17] As a result of these reasons, the submarines do not transit through straits, unless there is sufficient depth and other hydrographic characteristics, which make it safe for the submarines to navigate submerged. On the other hand, if the submarines have to navigate on the surface through the straits, it will significantly increase the risk of collision. In case of shallow straits, the submarines do not transit in any mode.[18] If the strait states were allowed to have control over navigation overflight, it may result in "creeping jurisdiction". This means that the national or international rules, as well as the rights and duties may be extended over and under the sea, in the Straits and coastal zones and in other parts of the high seas. Such a situation would be applicable to all the modes, including the commercial ships and aircraft as well as the military ones.[19] In case the strait states were allowed discretion to control shipping or aviation in the international Straits, it may result in conflict due to the reason that their strategic importance will increase significantly.[20] The result is that they will have the chance to use great political leverage for the purpose of influencing the regional international affairs or against a superpower that is hostile to them. In such a case, although it does not mean that the superpower will not be in a position to impose its will, however significant diplomatic efforts may be required and there will be costly delays.[21] Conversely, a more restrictive transit regime may also result in problems for the states that are bordering the straits. For example, these states may be required to take tough political decisions. The rights and duties of these states will increase and as a result they will have to face greater burdens. Either they will be required to adopt harder stance or they may be required to compromise. After establishing that basic reasons are present for assigning a special regime for passage through international straits, the legal regime governing the international straits can be evaluated. For the purpose of achieving a clear understanding related with the legal regime that governs the international states, the focus needs to be on the analysis of the relevant articles of UN Convention on the Law of the Seas III (1982). After the signing of UNCLOS III (1982), there have been significant changes in the world.[22] The international straits, as an issue of common use and concern, have been impacted as a result of these changes. The recent technological developments, economic growth, environmental concerns, all are related to the issue of the use of international straits and solve certain problems but at the same time, also result in creating other problems.[23] The legal regime related with international straits falls under the purview of public Law of the Sea. This in turn falls under international law. In this way, the relationship between the sovereign states are regulated by the international law.[24] Some of the video sources of international law as described in Article 38 (I), Statute of the International Court of Justice, which is the primary judicial organ of the UN includes international conventions, establishing rules that are expressly recognized by contesting states, international customs as an evidence of general practice that is accepted as law, the general principles of law that are recognized by civilized nations, judicial decisions and teachings of highly qualified academics of different countries as the subsidiary means of deciding the rules of law.[25] The Law of the Sea (LOS) can be considered as the oldest, as well as the most dynamic branches of international law. The law of the sea includes is based on the will of the nations to cooperate and it is concerned with the economic competition that is present between them and at the same time. It also concerns the contribution of naval warfare by other means. In the present assignment, the focus is on the sources of law of the sea related with international straits. For this purpose, the three UN conferences on the Law of the Sea needs to be discussed briefly. Similarly, the articles of 1982 convention related with the legal regime concerning international straits will be analyzed in detail.[26] The first UN conference: The first UN Conference on the Law of the Sea took place between February to April, 1958 in Geneva. In this conference, 86 states adopted the below mentioned four conventions. These were the Territorial Sea and Contiguous Zone, The Continental Shelf, the High Seas and Fishing and Conservation of the Living Resources of the High Seas. The above mentioned four conventions entered into force during 1962 to 1966. The issue related the navigation through international straits was discussed within the regime of navigation through territorial sea. In this regard, Article 16 mentions that there should be no suspension of innocent passage of foreign ships through the states that are used for international navigation from one part of the high seas to the other part or to the territorial sea of a foreign State. With regard to the navigation of submarines through international straits, it was mentioned in Article 16 that the submarines are required to navigate on surface and similarly they were required to show their flag when they were passing through territorial sea which includes the straits. However, the first UN Convention does not contain any provisions related with air navigation except the general assertion that the sovereignty of coastal state extends t airspace over the territorial sea.[27] The third UN Conference on the Law of the Sea: The third UN conference took place amid 1973 to 1982. It was held in New York, Geneva, Montego Bay and Caracas. The final version of this Convention was signed in December 1982. It was signed by 117 states. The Convention was closed for signature in 1984, and by that time, it was signed by 157 States. The convention entered into force on 16th of November, 1994. This UN Convention is considered as the most significant convention related with all the matters concerning the law of the sea, including the international straits. Some of the most significant interests that have been discussed in the nine years of difficult discussions include the security interests of the coastal states, protecting the resources of coastal states and the need for protecting the freedom of navigation of ships and aircrafts.[28] Part III of the UNCLOS III (1982) provides for a special regime concerning the straits that are used for international navigation. The convention includes a carefully negotiated compromise that tries to maintain balance between the interests of the user states as well as the interests of the states falling on the borders of international straits. Article 34 provides for the legal status of the waters that form the straits that are used for international litigation. It provides that the regime of passage through international straits provided for in this part shall not affect the legal status of the waters forming such straits and similarly do not affect the exercise of sovereignty or jurisdiction over the water and air space by the states bordering the straits. It is further mentioned that the sovereignty or jurisdiction of the bordering states of the straits as to the exercise keeping in view the provisions of this part and also the other applicable rules of international law. According to Article 3 of the Convention, it has been provided that the coastal states can claim the territorial sea up to 12 180 miles from the baselines along their coasts. Consequently, there are a number of international states that now fall within the territorial sea of a particular state bordering the international strait. However, the jurisdiction and sovereignty of the state falling on the border of the international strait is not the same as is the case with the rest of the territorial sea. Article 34 of the Convention provides that the jurisdiction and sovereignty of the state that borders an international strait needs to be exercised in accordance with the provisions of Part III of the convention and the other applicable rules of international law.[29] The major limitation that has been placed on the sovereignty of states falling on the border of international straits is the regime of transit passage. Article 35 is concerned with the scope of this part. It provides that no thing in this part shall have an impact on any areas of internal waters within the strait, apart from the area where the establishment of a strait baseline according to the method provided in article 7 has the effect of enclosing as internal water areas that were not considered as an earlier. Similarly, it will not affect the legal status of the waters beyond the territorial seas of a bordering state as exclusive economic zone. It further provides that nothing in part III will affect the legal regime in the Straits, where passage is regulated wholly or partly by long-standing international conventions that are particularly relating with such a strait. The right of transit passage and the obligations that are created by it are not applicable in case of the internal waters of the strait. Similarly, it will not affect the legal regime beyond territorial seas or the exclusive economic zone. The articles of 1982 convention related the transit passage shall not affect the long-standing conventions regarding the passage regime in some of the international straits. In this regard, the term 'long-standing' is being used so that there is no impact on the straits like the state of Constantinople as in this case. The passage is regulated by the Montreux Convention, 1936. In the same way, the Baltic straits and the straits of Magellan are also regulated by long-standing international conventions.[30] Article 36 of the convention provides that High Sea Routes or the routes that fall through the exclusive economic zone in the strait can be used for international navigation. It has been provided that the provisions of this part are not applicable to a strait. That is used for international navigation, if through the strait, a route through the high seas or through exclusive economic zone of similar convenience regarding navigational and hydrographical characteristics is present. In case of these routes, the other relevant parts of the convention, including the provisions concerning the freedom of navigation and over flight will be applicable. This article provides that if the breadth of the international strait is more than the breadth of the territorial sea of the bordering state, in such a case, there is a sea corridor present through the high seas or the EEZ. If the route is convenient for navigation, in context of navigational and hydrographical characteristics, then the right for transit passage will not be applicable in case of such a strait. Article 37 is applicable to the straits that are used for international navigation between a part of the high seas on an exclusive economic zone and some other part. In this way, article 37 provides the right areas that a strait shall comply with all the purpose of being described as an international strait. There are two criteria that needs to be complied with. First of all, it should either connect one part of the high sea with the other part or with another exclusive economic zone. An exclusive economic zone can be described as an additional belt of the sea beyond the territorial sea up to 200 miles from the baseline of the coastal state, where the state has sovereign rights over the resources, but not over the waters. In this way the status of EEZ is different from that of the territorial sea. Article 38 is related with the right of transit passage. Therefore, in case of the straits that have been mentioned in article 37, all the ships and aircraft have the right of transit passage, which should not be impeded except if the strait is formed by an island belonging to a border state of the strait and its mainland, the transit passage will not be applicable if there is a route, seaward of the island, through the high seas or an EEZ of similar convenience. It can be said in the end that the UNCSOL 1982 provides the most basic reforms to law of the sea since 1493 when Pope Alexander VI bulls divided the oceans of the world and land between Spain and Portugal. This convention is considered as the established guide for the legal, political and technical matters related with the use of the seas. Apart from the other arrangements (EEZ, continental shelf regime, the 12 NM territorial regime), this convention has also produced the legal regime related with the international Straits. As mentioned in part III and articles 34 to 45. Hence, the regime of transit message through international Straits helps in restricting the likely desire of the coastal states to extend their sovereignty by way of increased regulation or in other words, creeping regulation. During the negotiations for UNCLOS III, the maritime powers have strongly requested for the regime of transit passage through international Straits. The reason was that it allows their navies t o attain the required mobility, as well as the necessary operational flexibility as it provides the assurance that the important lines of communication will be open as an international legal right. 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