The Applicability of the Messina Exception to the Sea of Straits

The extension of the width of the Estonian territorial sea to 4 miles under sec-tion 1 of the 1938 Waterways Act triggered protests from the United Kingdom and Germany. They were exceptional in that such protests had not been filed against the 4-miles-wide territorial sea of e.g. Finland or Sweden, although the latter (unlike the former) had declared its territorial sea 4 miles wide in its domestic law.⁷⁸⁸ Analogously to Germany, which sent its Verbal Notes against section 1 of the Waterways Act to the Estonian Ministry of Foreign Affairs on May 30^th, 1938 and March 30^th, 1939,⁷⁸⁹ the British Embassy in Tallinn directed its protest against inter alia section 1 of the Waterways Act on March 24^th, 1939, stating that

“As the Estonian Government are doubtless aware His Majesty’s Government are unable to recognise any claim to jurisdiction over waters beyond the limit of three miles from low water mark, following the sinuosities of the Coast.”⁷⁹⁰

The Estonian Ministry of Foreign Affairs replied to the British Chargé d'Affaires in Tallinn on November 25^th, 1939:

“Considering that there exists no generally recognised international rule con-cerning the extent of territorial waters, the Estonian Government claims the right to fix for themselves the extent of the Estonian territorial waters.

Nevertheless, they take notice of the British Government’s objection and, in par-ticular, are prepared to take into account the British point of view as regards enactment of neutrality in case of war. They are namely prepared to limit, by way of exception to the provision fixing the extent of their territorial waters in peace time and in accordance with the generally accepted international rule, to three miles the extent of their territorial waters for the purpose of application of their neutrality law in respect of belligerent powers.”⁷⁹¹

An identical Verbal Note was sent to the German Embassy in Tallinn on December 2^nd, 1939.⁷⁹² The German Government upheld its protest in a Verbal Note sent to the Estonian Government on February 7^th, 1940 in spite of the above-referred explanations made by the Estonian Ministry of Foreign Affairs.⁷⁹³

The protests made by the United Kingdom and Germany in respect of sec-tion 1 of the 1938 Waterways Act are relevant for the contemporary passage

788 ERA.957.14.583, pp. 29–30. By contrast to Sweden, the width of the Finnish territorial sea was established in the 1920 Tartu Peace Treaty, as discussed above.

789 Ibid, pp. 2–3.

790 Ibid, p. 10.

791 Ibid, p. 7.

792 Ibid, p. 6.

793 Ibid, pp. 8–9.

regime in the Sea of Straits since, on this basis, these two States might not con-sider the Sea of Straits as entirely comprising long-standing internal waters in terms of Article 35(a) of the LOSC. Thus, it is not ruled out that the United Kingdom and Germany consider themselves not bound by the exclusion of the transit passage in the Sea of Straits under Estonia’s domestic law in case they should uphold their protests against section 1 of the Waterways Act.⁷⁹⁴ In such an instance, both States should also reason why they do not consider the pas-sages to the Sea of Straits as having fallen entirely under the regime of internal waters in terms of section 2(3) of the Neutrality Act, as discussed above.⁷⁹⁵ Also, the Russian Federation may object to the concept of long-standing inter-nal waters in the Sea of Straits on the basis of its rejection of Estonia’s State continuity.

Yet in this case, it is doubtful that the regime of transit passage would apply to the Sea of Straits in respect of the protesting States. According to Article 38(1) of the LOSC, all ships and aircraft enjoy the right of transit passage, which shall not be impeded in straits that connect two parts of an EEZ; except if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through an EEZ of similar convenience with respect to navigational and hydro-graphical characteristics. This exception for the inapplicability of the regime of transit passage was included in the LOSC expressly in reference to the Messina Strait between Sicily and Italy’s mainland and hence is commonly known as the Messina exception.⁷⁹⁶

The Sea of Straits is entirely bordered by Estonia, thus meeting the first cri-terion of Article 38(1) of the LOSC. Yet only the Big Strait (between Muhu Island and the mainland coast) and the Voosi Strait (between Vormsi Island and the mainland coast) are formed by an island and the Estonian mainland in literal terms of the provision. It is possible to navigate via the Big and Voosi straits from the Gulf of Finland to the Gulf of Riga. However, the Muhu Strait, which is commonly used for such navigation, comprises the Big Strait and the Hari Strait. Unlike the Big Strait, the Hari Strait is formed by two islands (Vormsi Island and Hiiumaa Island) similarly to the Hiiu Strait between Hiiumaa Island and Saaremaa Island and the currently non-navigable Small Strait between Saaremaa Island and Muhu Island.

Therefore, some of the straits in the Sea of Straits do not meet the literal terms of Article 38(1) of the LOSC. By contrast, it is clear that since the mari-time area of the Muhu Strait (north-south passage in the Sea of Straits) is gener-ally formed by Hiiumaa Island and the Estonian mainland (northern east-west

794 The United Kingdom also protested against section 3 of the 1938 Waterways Act that provided the extended width of the Estonian territorial sea in the Sea of Straits. See supra section 4.1 of Part V.

795 See supra section 4.2 of Part V.

796 See Caminos, Cogliati-Bantz, op. cit., p. 46. López Martín, op. cit., p. 93. In 1992, only 19 straits had been identified as falling under the Messina exception. See Rothwell 1992, op. cit., p. 474.

section of the strait) as well as Muhu Island and the Estonian mainland (south-ern east-west section of the strait), the strait geographically satisfies the criteria of the Messina exception.⁷⁹⁷ As analysed above, the same might not necessarily apply in regards to the Hiiu Strait (east-west passage in the Sea of Straits with very light traffic). Although the exception would not apply to the Small Strait either, this is practically irrelevant since, due to its shallow waters and a road-dam (since 1896), it does not have any vessel traffic.

However, despite the potential inapplicability of the Article 38(1)-exception to the Hiiu Strait under its literal terms, under the teleological interpretation of the said provision, it might still be considered as exempted from the transit pas-sage regime. This follows from the fact that since the transit paspas-sage regime could not apply to the Muhu Strait under Article 38(1) of the LOSC, it would not be possible to exercise continuous and expeditious transit of the Sea of Straits through neither of its possible routes: neither from the EEZ in the Gulf of Finland nor from the Latvian EEZ in the Gulf of Riga to the EEZ in the Baltic Sea proper west of Saaremaa and Hiiumaa islands. Particularly, the ships or aircraft transiting the Sea of Straits would have to cross either the northern or southern section of the Muhu Strait.

It may be presumed that the object and purpose of the Messina exception in Article 38(1) of the LOSC is not to establish in the waters of an archipelago adjacent to the mainland coast multiple passage regimes, some of which cannot be enforced in practice. The application to the Soela Strait of the transit passage regime would be meaningless, since it would not enable ships in the EEZ in the Baltic Sea proper to reach the EEZs in the Gulf of Riga or in the Gulf of Fin-land. The maritime area in the Soela Strait, where the transit passage regime would be applicable, would be only a few miles long, reaching to Kassary Bay.

After passing Kassari Bay, the ships and aircraft could no longer use the right of transit passage since it would be replaced with the regime of non-suspendable innocent passage in the Muhu Strait.

Pursuant to the object and purpose of the Messina exception, it would be reasonable to conclude that where it would not apply under its literal interpreta-tion because a particular strait is formed only by islands (instead of islands and a mainland coast), it could still be applied in such a strait if it forms a continu-ous waterway that only leads further to such straits where the transit passage regime clearly cannot be applicable under the ordinary meaning of the terms of the Messina exception. Hence, by applying common sense, the Article 38(1)-exception would geographically cover the whole maritime area of the Sea of Straits. Also, in such a geographical context, scholars tend to approach Article 38(1) of the LOSC rather liberally.⁷⁹⁸ Likewise, Nandan and Anderson (who were among the drafters of Part III of the LOSC) maintain in respect of Article

797 The only minor exception in that regard is the Hari Strait at the northern end of the Muhu Strait since it is formed by islands.

798 Caminos and Cogliati-Bantz, op. cit., p. 47. In addition, Rothwell argues that the 38(1)-regime applies to the strait formed by the King Island and Tasmania Island in the Bass Strait. See Rothwell 1992, op. cit., p. 475.

38(1) of the LOSC that “The application of the exception in particular geo-graphical situations (e.g. where there is an archipelago as in the Aegean or where there are several islands lying together, or where it is not clear what is a State’s ‘mainland’) may not be free from difficulty; but the words should not be interpreted too mechanically. Instead, all the relevant geographical and other circumstances should be taken into account and a ‘commonsense’ interpretation given”.⁷⁹⁹

Thus, in the context of the Sea of Straits, it would be wise to interpret Article 38(1) of the LOSC so that if the strait is formed by an island or a group of islands of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an EEZ of similar convenience with respect to navigational and hydro-graphical characteristics. This somewhat liberal interpretation of the said pro-vision, which adds the terms “or a group of islands” in its geographical scope, does not, in the view of the present author, go against its ordinary meaning in its context and the provision’s object and purpose.

Yet Article 38(1) of the LOSC also includes functional criteria for the applicability of the clause. Namely, the seaward route through an EEZ needs to be of similar convenience with respect to navigational and hydrographical char-acteristics. This concerns also the length of the route.⁸⁰⁰ The distance from a point in the EEZ in the western end of the Gulf of Finland directly north of the Hari Strait to the northernmost point of the Latvian EEZ in the Gulf of Riga through the Muhu Strait is approximately 100 miles. By contrast, the seaway between the same points in the EEZs of the Gulf of Finland and the Gulf of Riga through the Estonian EEZ west of Saaremaa and Hiiumaa islands would be slightly less than double the distance. However, this ratio is grosso modo commensurate with the difference of distances between the routes from the Ionian Sea to the Tyrrhenian Sea if comparing the seaway through the Messina Strait with the one around Sicily Island. Thus, the Sea of Straits may be consid-ered as also satisfying the navigational criterion for the applicability of the Mes-sina exception as stipulated in Article 38(1) of the LOSC.

It also meets the hydrographical criterion since in comparison with the Muhu Strait, the seaway around Saaremaa and Hiiumaa islands is generally signifi-cantly less dangerous both from the perspective of the safety of a ship and its crew as well as the environment.⁸⁰¹ By contrast to the route through the Irbe Strait and around the Estonian western archipelago, the Sea of Straits has shal-low waters, hundreds of islands and many reefs in addition to the heavy traffic of passenger ferries between the islands and the Estonian mainland coast.

799 Nandan, Anderson, op. cit., p. 181. See also ibid, pp. 166–167.

800 See e.g. Caminos, Cogliati-Bantz, op. cit., p. 52. Rothwell 1992, op. cit., p. 474.

801 Small craft are not taken into account since in respect of such vessels innocent passage grosso modo applies in the Sea of Straits. On the impact of transit passage on the marine environment and the relevant legal framework, see M. George. Transit Passage and Pollution Control in Straits under the 1982 Law of the Sea Convention. – 33 Ocean Development & International Law 2002(2), pp. 198–202.

Therefore, the Messina exception, as provided in Article 38(1) of the LOSC, could be considered applicable to the ships of States that may reject the concept of Estonian long-standing internal waters in the Sea of Straits on the basis of their previous practice. Consequently, their ships and aircraft would not enjoy the right of transit passage. Instead, their ships (but not aircraft) are entitled to the right of non-suspendable innocent passage in the Sea of Straits since it applies pursuant to Article 45(1)(a) in combination with Article 45(2) of the LOSC to the straits that satisfy the criteria of the Messina exception.

The difference between the regime of non-suspendable innocent passage and the one of common innocent passage as defined in Article 18 of the LOSC lies in the strait State’s right to suspend the passage through the strait.⁸⁰² Pursuant to Article 25(3) of the LOSC, the coastal State may, after due publishing and without discrimination in form or in fact among foreign ships, decide to suspend temporarily in specified areas of its territorial sea the innocent passage of for-eign ships if such suspension is essential for the protection of its security, including weapons exercises.⁸⁰³ By contrast, according to Article 45(2) of the LOSC, non-suspendable innocent passage cannot be suspended. Thus, although the right of innocent passage does not generally apply to ships transiting the Sea of Straits, Estonia would still have to permit under international law the inno-cent passage of ships of the afore-referred protesting States in the Sea of Straits, as examined above.

802 For the differences between transit passage and innocent passage, see supra section 1.2 of Part I.

803 The protection of national security provides relatively wide discretion for the strait State(s). See D. R. Rothwell. Innocent Passage in the Territorial Sea: The UNCLOS Regime and Asia Pacific State Practice. – D. R. Rothwell, S. Bateman (eds). Navig-ational Rights and Freedoms, and the New Law of the Sea. The Hague: Martinus Nijhoff 2000, p. 93. See more generally on the right to suspend innocent passage in F. Ngantcha.

The right of innocent passage and the evolution of the international law of the sea: the current regime of ‘free’ navigation in coastal waters of third states. London: Pinter Publishers 1990, pp. 163–166.

CONCLUSION

A. The Legal Categories of Straits and their Interrelationship