International Straits and 
the Law of the Sea Conference

Until recently, developments in international law of the sea were something that most Americans, even those with an active stake in international affairs, could safely afford to ignore. This is no longer the case. Access to offshore oil and gas deposits has become increasingly important as the energy crisis continues to color world events. Control of ocean fisheries is hardly less important in a period of global protein shortages, since fish and fishmeal supply a major source of world protein requirements. These and related developments in an evolving set of sometimes complementary, sometimes contradictory maritime policies form the substance of the work that the Third United Nations Law of the Sea Conference will tackle over the next year or so. The conference formally opened at U.N. Headquarters in New York in December 1973. Delegations did not get down to grappling with substantive differences, however, until the first working session, which opened in Caracas in the summer of 1974. The negotiations are expected to continue over a period of months, perhaps as long as two years.

From a national security point of view, the question of transit through and over international straits is probably the most important single issue to come before the conference. International straits have long been recognized as critical choke points in the flow of international trade and in the deployment of military power. More recently they have assumed increasing significance in terms of the regular supply of the oil essential to fuel a modern economy. More important, they are crucial to the deployment of national air and naval forces into the basins they connect. For example, our only easy and unrestricted access into the Mediterranean basin, and to the Middle East beyond, is through or over the Strait of Gibraltar.

innocent passage, free transit,
and territorial seas

An international strait, according to the doctrine laid down in 1949 by the International Court of Justice in the Corfu Channel case and subsequently codified in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, is any strait connecting two portions of the high seas. That the right of innocent passage through such bodies of water extends to warships as well as merchant vessels was established by the Court in the same decision, and this appears to be taken for granted in the 1958 Geneva Convention.¹ This right is generally seen as a necessary consequence and extension of the freedom of the high seas, which freedom would be significantly curtailed if international straits could be closed more or less at will by the coastal state or states. The International Court further held in the Corfu Channel decision that it is geography rather than actual use which determines whether or not a strait is such an international highway. It does not matter whether the territory on both sides of the strait is possessed by a single state or by two or more nations, nor does it matter whether the territorial waters meet somewhere in the middle.²

At present, a majority of the nations of the world claim a twelve-mile territorial sea; but a substantial minority, which includes most of the major maritime nations (except the U.S.S.R.), recognize only three miles. The significance of this difference is that, were the emerging consensus on the twelve-mile limit to become a formal, universally recognized legal norm, upwards of one hundred international straits that are traversed by a high seas corridor under the present three-mile concept would, under a twelve-mile regime, be completely overlapped by the territorial waters of the adjacent coastal state or states. Unless some special provision were made for international straits, transits through and over these important passages would thus come substantially under the control of the coastal states, subject only to a provision for innocent passage of naval vessels. This is basically the position being pushed by most coastal states not having substantial fleets of their own. These hundred-odd straits that are more than six but less than 24 miles wide include the English Channel at Dover, Gibraltar, Malacca, and many of the other major straits of the world.

In contrast to this trend, the United States has consistently insisted that recognition of a twelve-mile limit in place of the traditional three miles must be coupled with some provision that would retain the right of free transit (as opposed to innocent passage) through and over such vital world waterways. The difference between free transit and innocent passage is a critical one from the security point of view. Under the regime of innocent passage codified in Section III of the 1958 Geneva Convention, the rule is established that transit is innocent only “so long as it is not prejudicial to the peace, good order or security of the coastal state.” The last section of the article also requires that submarines exercising the right of innocent passage navigate on the surface, showing their flag. In Article 16 a coastal state is given the right to “take the necessary steps in its territorial sea to prevent passage which is not innocent.” This phraseology is nebulous enough as it stands; furthermore, the use of the word “prejudicial” suggests that an actual injury to peace, good order, or security need not be taking place for the passage to be deemed no longer innocent. If a reasonable chance exists that such injury may be in the offing, the coastal state would be in a strong position to decide that the passage is not innocent and exclude the vessel from its territorial waters.

Though the 1958 Geneva Convention prohibits the suspension of innocent passage in international straits, it does not thus prohibit states from deciding that a given transit—or, more important, class of transits—is noninnocent and taking preventive steps. While under current international law and practice the coastal state appears to be able to make this decision unilaterally, if the decision were applied so as to preclude what another power regarded as a vital transit right, it is unlikely that the flag state would quietly acquiesce. For example, as the Chairman of the DOD Advisory Group on the Law of the Sea, Leigh Ratiner, has written:

. . . thus is can be assumed that if Spain were to close the Strait of Gibraltar to all warships, and efforts to change the Spanish position through negotiation were to fail, some state would nevertheless exercise its right to transit the Strait of Gibraltar.³

It is equally likely that the United States would challenge any coastal state’s assertion that nuclear-powered warships were by their very nature too hazardous to be accepted as innocent, and that Japan would not quietly acquiesce in an Indonesian decision that the passage of supertankers through various Indonesian-claimed straits posed too great a risk of a super oil spill to be permitted.

The degree to which other nations take sides in what could quickly degenerate into an international shouting match (or worse) would probably depend more on political factors than, strictly speaking, on any clear reading of international law, though no doubt everyone would point with great righteousness to one rule or another to prove his case. Nor would it be realistic to suggest that political factors would play no part in the coastal state’s original contention.

International law of the air does not recognize any right for aircraft overflight comparable to innocent passage for vessels. In maritime law, as mentioned earlier, innocent passage is derived as a necessary consequence of freedom of navigation on the high seas, a reflection of the geographical and physical constraints that limit the movement of ships. No such constraints to aircraft, which can overfly the barriers of geography, so there is no provision for “innocent overflight” in international law. The Chicago Convention on International Civil Aviation (1944), which sets the basic pattern for signatories’ overflight and landing rights, applies only to commercial aircraft. Decisions on military overflight are thus within the sole competence of each country for its own airspace. Article 2 of the Chicago Convention recognizes the “complete and exclusive sovereignty” of a state in the airspace over its territorial sea.

The extent of a state’s territorial sea thus becomes a critical question with respect to the free navigation and overflight of straits. Extending the width of the territorial sea to a twelve-mile limit would put a powerful new political lever into the hands of coastal states, not all of which are friendly to the United States. Even among those governments associated with U.S. security objectives, it would be unrealistic not to expect them to use this leverage in support of their own objectives vis-à-vis the U.S. government.

In view of this fact, one might wonder whether the U.S. has any interest in recognizing a twelve-mile limit, even if most other countries are urging it. Unfortunately, the matter is not that easy to resolve. Not surprisingly, the width of the territorial sea has been one of the most sensitive issues in maritime law. Despite at least two close attempts, the world community has not so far been able to agree on a generally accepted limit, either in the 1958 Convention or elsewhere. That convention did at least succeed in setting a theoretical maximum limit: Article 24 states that the contiguous zone, adjacent but external to the territorial sea, shall not extend beyond twelve miles from the baseline from which the territorial sea itself is also measured, thus indirectly and tacitly limiting the maximum breadth of the territorial sea to twelve miles.⁴

The lack of an explicit consensus and the variety of state practices, however, have encouraged some states to advance more extensive claims in recent years. Brazil, for instance, has proclaimed a 200-mile territorial sea, which sweeps out across an enormous area of the South Atlantic. Certain archipelago states, notably Indonesia and the Philippines, have declared vast areas of formerly open sea to be their internal waters by the simple device of drawing the baselines from the projecting capes and headlands of their outermost islands and measuring outwards from there. Unless this tendency towards proliferating claims beyond a twelve-mile limit can quickly be brought under control through international agreement, the tendency to stake out extensive national maritime claims will degenerate into a veritable scramble. It could conceivably end in denying the U.S. important operating freedoms in large sectors of formerly open air and sea space or at least requiring us to pay for them—nor would the price be limited to money.

U.S. oceans policy

Within the United States government, the Inter-Agency Task Force on the Law of the Sea is the main body in which the U.S. negotiating position is hammered out. This group includes high-level representatives of the Departments of State, Defense, Interior, Commerce, Justice, and Transportation and representatives of the National Security Council Staff, the National Science Foundation, and the National Council on Marine Resources and Engineering Development.⁵ Though the committee is normally chaired by State, the Defense view generally seems to have been the most weighty in formulating the overall U.S. position. As Mr. Ratiner has written concerning the thinking behind the American position on the straits issue:

Nations which depend on their merchant marine and navies for economic and national security. . . can be strangled by having access to oceans limited or delayed when passing through narrow international straits. Submerged passage of submarines, overflight of aircraft, and freedom from restrictions generally would disappear. . . [or] depend on the good graces of the coastal state or states bordering the strait in question. Such a result would be unacceptable to any country with global interests, a global foreign policy, a large merchant marine, and a large navy and air force. It is principally for this reason that the United States has opposed territorial sea extensions beyond 3 miles.⁶

Clearly what he terms the “vital national security interests” prevail in the overall U.S. position, reflecting Navy and Air Force concern to preserve maximum freedom of navigation and overflight. Were the U.S. to be denied free access through the Strait of Gibraltar, for instance, the utility of the large naval base just a few miles to the west at Rota, a key point for the deployment of U.S. nuclear-powered submarines carrying a significant portion of the American strategic deterrent, would be greatly reduced.

Even within the security community, however, not all Western strategists share the official U.S. view that continued unrestricted access through international straits is central to the Western security position. To quote one recent analyst, Friedhelm Kruger-Sprengel:

. . . as most of the coastal states in the North Atlantic area are NATO countries, a broader territorial sea can generally be regarded as not a threat to the mobility of NATO naval forces. On the contrary, a broader territorial sea gives NATO states additional opportunities of keeping foreign warships farther from their coasts, should security interests make such a step necessary. . . . From the point of view of the NATO states in Europe, there is no necessity to strengthen the right of passage in the seas around Europe, for such a measure would only favor the navies of the Soviet Union and other Warsaw Pact states.⁷

In light of the fact that approximately half of the Soviet military shipbuilding capacity is in the Baltic area and Leningrad is the U.S.S.R.’s most important port, he argues that a twelve-mile territorial sea, at least in the Baltic area, would on balance serve Western interests better than those of the Soviets. Where necessary in given strategic straits, according to this view, the West could ensure its rights by negotiating specific bilateral agreements, a task that might be easier than persuading the whole international community to accede to the U.S. position in the forthcoming negotiations.

There are in fact some indications that the U.S. government is reacting to the growing pressure against an unyielding American position on the straits issue and, rather than seeking for a universalistic rule covering all hundred-odd straits, is concentrating its attention on the sixteen designated “Straits of Major Importance” listed by the Geographer of the Department of State.⁸ If the U.S. does in fact fall back to some such position, it may well prove to be the one step backward that makes possible the two steps forward to an agreement.

other national views

Among the major maritime powers, Russia alone presently claims a twelve-mile territorial sea, a position that goes back to Lenin himself. This traditional claim provides the technical basis for the apparent double standard the U.S.S.R. has adopted with respect to navigation of international straits. The Soviets demand free transit only through those straits that would be affected by expanding the present territorial sea to twelve miles; those already under a twelve-mile regime, which includes all those in Soviet waters, thus would not be included. The Soviets do not recognize the right of innocent passage through their territorial sea. The United States, the United Kingdom, and Japan all currently recognize only a three-mile territorial sea, but all three have formally stated they would be willing to accept a twelve-mile limit as part of a satisfactory overall settlement.

Nor should one overlook the degree to which the old patterns of international politics have eroded, at least in this one area. The Soviets have publicly endorsed the U.S. “free transit” approach, while the American delegate has scrupulously refrained from attacking or even mentioning the double standard implicit in the Soviet reservations. Spain, though tied to Western security interests through the broad-ranging 1970 Agreement of Friendship and Cooperation with the United States, has been leading the attack on the position the U.S. government feels is “vital” to its global strategic security responsibilities. In this, Spain has had the strong support of the Latin Americans, who, with no immediate stake in straits navigation, are probably more influenced by the chances of Spanish support on the fisheries question than by the much-vaunted ties of a common cultural heritage. Some NATO thinkers likewise seem to discount any real danger to the security of the West, and many in NATO are probably more bothered by the possibility of a Soviet-American rapprochement that would to some extent freeze them out than by the specter of restricted navigation through international straits.

In East Asia, the Japanese, though still trying to preserve as low a profile as possible in international politics, are being inevitably pushed to center stage. At some point, however, they will have to choose between accepting the greater degree of coastal state control over their access to vital energy supplies implicit in a twelve-mile territorial sea, on the one hand, and, on the other, by their opposition to a twelve-mile limit, antagonizing South Asian neighbors whose goodwill they have been diligently cultivating for some years.

In matters of the law of the sea, as in most questions, each nation perceives its national interests differently. The U.S. seeks to preserve its global strategic advantage, an important component of which is the ability to project American air and naval forces through and over the Strait of Gibraltar into the Mediterranean basin and the Middle East area. The Soviets, with extensive oil supplies within their own sphere, likewise appear more concerned with the strategic aspects of free transit than with the economic aspects, especially since their access by submarine between the Black Sea and the Mediterranean is currently restricted by the Montreux Convention. The Japanese, on the other hand, are primarily concerned with continued access through Malacca and other Indonesian-claimed straits to the Middle East oil supplies essential to their economy. The British have both extensive trade and security interests; their position is in addition complicated by particular historical connections with Gibraltar, Singapore, the Channel, etc. But generally, these states, as major maritime powers, favor as liberal a regime for international states as possible.

By contrast, most coastal states perceive their advantage to lie in as restrictive a regime as possible. This in part stems from a genuine desire to protect their shores, populations, and fisheries from pollution or nuclear accident. The memory of the Palomares incident is still a factor in Spanish policy, and the Torrey Canyon disaster has been cited by the Malaysian delegate in past debates. But beyond these legitimate concerns, coastal states would also no doubt like to increase their leverage in international affairs, and they see increased control over vital waterways as an effective means to that end.

the negotiating climate

How can all the various political, institutional, strategic, and even physical factors that cluster around the straits issue be accommodated, to say nothing of the question of trade-offs between the straits issue and others, such as conservation of fisheries or control over natural resources exploitation? 

As another commentator, Louis Henkin, has pointed out, “Law is shaped by the interplay of a variety of national interests in a complicated political process.”⁹ The important word here is “political.” The ultimate resolution of the matter will evolve from hard bargaining based on several sets of competing national interests between straits states and user states, maritime industrial countries and underdeveloped countries, conservative and radical governments, land-locked and coastal states, etc. 

In view of the variety of interests involved, it is not to be wondered at that the negotiating process to date has been difficult and often uncompromising. The preponderance of intensely nationalist states among the less-developed countries, many of which played no part in negotiating the 1958 accords, and the general reluctance of the Department of Defense to favor concessions in the U.S. position, have in the past tended to produce a climate marked by intransigence, though a more constructive atmosphere appears to be emerging as national delegations come to grips with the specific problems they must face in reaching an acceptable agreement. The high stakes involved and the relatively high degree of ignorance in a number of delegations about the complex legal and technical factors bearing on the situation have both added to the difficulties inherent in the negotiating situation.¹⁰

At the same time, the diversity of interests involved ought to make for some degree of flexibility in the negotiating process. It would be important in this respect, however, that the whole set of tradeoffs and compromises between security, energy, fisheries, and seabed resources interests be written into a single package, as the United States and others are advocating. Otherwise, if states are left free to pick and choose among several separate conventions dealing with these topics, as was the case with the 1958 Geneva accords, it is unlikely that a workable measure of agreement could be achieved. States would simply ratify those measures that further their interests and ignore the rest, vitiating the whole concept of a negotiated bargain in which concessions must be made in one area to secure benefits in another.

Fletcher School of Law and Diplomacy

Notes

1. George Schwarzenberger, A Manual of International Law, 5th edition (New York: Frederick A. Praeger, 1967), p. 104. A copy of the text of the Convention and other relevant documents may be found in S. Huston Lay, Robin Churchill, and Myron Nordquist, editors, New Directions in the Law of the Sea, Documents, vol. I (Dobbs Ferry, N.Y.: Oceana Publications, Inc., 1973); see in particular “Convention on the Territorial Sea and the Contiguous Zone,” (Geneva, 1958), pp. 1-10, and “Convention on International Civil Aviation,” (Chicago, 1944), pp. 11-12.

2. C. John Colombos, The International Law of the Sea, 6th revised edition (New York: David McKay Co., Inc., 1967), pp. 197-98.

3. Leigh S. Ratiner, “United States Oceans Policy: An Analysis,” Journal of Maritime Law and Commerce, II, 2 (January 1971), pp. 232-33.

4. J. L. Brierly, The Law of Nations, 6th edition (New York: Oxford University Press, 1963), p. 208.

5. Ratiner, p. 226.

6. Ibid., p. 263.

7. Friedhelm Kruger-Sprengel, The Role of NATO in the Use of the Sea and the Seabed (Washington: Woodrow Wilson International Center for Scholars, 1972), p. 24 ff.

8. Ibid.

9. Louis Henkin, “The General Assembly and the Sea,” The Law of the Sea: The United Nations and Ocean Management Proceedings of the Fifth Annual Conference of the Law of the Sea Institute (Kingston, R.I.: University of Rhode Island, 1971), p. 10.

10. H. Gary Knight, “Law of the Seas Negotiations 1971-72—From Internationalism to Nationalism,” San Diego Law Review, IX, 3 (May 1972), pp. 385-86.