Historic Straits: Interpretation of Article 35(a) of the LOSC

LOSC as the legal basis for a distinct category of straits. Yet Article 35(a) in Part III of the LOSC and its importance for the legal regime of straits stands out even under a traditional reading of the LOSC. The poor record of reference to Article 35(a) may be due to its sophisticated wording which veils its scope and makes its significance for the legal regime of straits difficult to understand.

The use of terms in Article 35(a) of the LOSC has also warranted different interpretations. It has been interpreted broadly as well as restrictively. Under its broad interpretation one departs from the ordinary meaning of its terms, whereas this is not the case under the literal interpretation.

Article 35(a) of the LOSC may potentially embrace two categories of straits that do not fall under the LOSC legal framework on international straits. Pursu-ant to the broad interpretation, the first category of straits included in this pro-vision may be straits comprising internal waters which have historically been

considered as such not under a long-standing convention (Article 35(c) of the LOSC), but instead, for example, on the basis of the concept of historic bay or, more generally, historic waters. Authors who support the existence of such a distinct category of straits include Jia and López Martín.

Jia, for example, refers to the Strait of Juan de Fuca, Hudson Strait and the Northeast Passage as examples of potential historic straits.⁶³ He argues that his-toric straits occur as integral parts of hishis-toric bays.⁶⁴

Similarly, López Martín has limited the application of Article 35(a) of the LOSC only to such straits that have always been part of internal waters on the basis of historic entitlements. Thus, she argues that

“There are straits which are formed by internal waters which have always been internal waters. This category of straits remains outside the scope of application of Part III according to article 35 a). /.../

When do such circumstances arise? When can we speak of internal waters which have not arisen as a consequence of the establishment of a straight baseline in accordance with the method of article 7? This possibility that a strait might include internal waters which have always been of this type, that is to say, they have not been transformed into internal waters as a consequence of the estab-lishment of a straight baseline, may occur, as pointed out by D. Pharand, as a consequence of the existence of historic entitlements. This would involve the hypothesis of historic waters which would create a type of ‘historic straits’ simi-lar to the ‘historic bays’ referred to in article 10.6 of the Convention.

Practice provides some examples of historic bays which are fully recognized, such as Chesapeake Bay, Delaware Bay and the Gulf of Fonseca. However, the situation differs as regards the existence of historic internal waters in straits.

Except for Indreleia in Norway, there is no generalised recognition of any other strait which includes historic waters.”⁶⁵

Such interpretations by Jia and López Martín of Article 35(a) of the LOSC do not well coincide with the provision’s literal or teleological meaning.⁶⁶ First, it is misleading to adopt the ambiguous temporal dimension “always (been part of internal waters)” instead of the one provided in Article 35(a) of the LOSC itself, according to which Part III of the LOSC does not affect any areas of internal waters within a strait that had been considered as such prior to the establishment of straight baselines. It is also unnecessary to relate Article 35(a) of the LOSC only to another ambiguous term “historic entitlements” as Article 35(a) of the LOSC encompasses a somewhat more clear-cut scope of application.

63 Jia 1998, op. cit., p. 75.

64 Ibid, pp. 75–77.

65 López Martín, op. cit., pp. 69–70.

66 The literal and teleological interpretation methods are referred to in Article 31 of the 1969 Vienna Convention in the following terms: „A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Vienna Convention on the Law of Treaties. Vienna 23.05.1969, e.i.f. 27.01.1980.

In addition, the LOSC does not refer to the term “historic straits” in Article 35(a) as a distinct category of straits. However, Article 35(a) of the LOSC may embrace in some cases also the concept of historic waters or historic bay which may include, as Jia notes, so-called historic straits. Yet, as the LOSC Annex VII Tribunal has observed, historic waters may refer to an exceptional title over either the internal waters or territorial sea.⁶⁷ Hence, so-called historic straits may not necessarily fall under Article 35(a) of the LOSC since it refers only to inter-nal waters, whereas historic straits may also comprise the territorial sea.

If recognised, the concept of historic straits would be a controversial distinct category of straits, since it would not necessarily follow the categories of straits as provided in Part III of the LOSC. This is primarily due to the fact that, as examined above, historic straits may not fall under the terms of Article 35(a) of the LOSC. In this case, such a distinct category of straits could find its legal basis only from general international law. However, in this context Caminos and Cogliati-Bantz have come to the conclusion that “Because the [LOSC] reg-ulates the regime of straits used for international navigation, the last preambular paragraph referring to rules of general international law is inapplicable.”⁶⁸ Simi-larly, the LOSC Annex VII Tribunal has emphasised that the LOSC is a pack-age deal and in this regard stated that

“In the Tribunal’s view, the prohibition on reservations is informative of the Convention’s approach to historic rights. It is simply inconceivable that the drafters of the Convention could have gone to such lengths to forge a consensus text and to prohibit any but a few express reservations while, at the same time, anticipating that the resulting Convention would be subordinate to broad claims of historic rights.”⁶⁹

Therefore, it should be understood that the so-called historic straits do not form a distinct and, legally speaking, ambiguous category of straits, but instead are part of the category of straits comprising long-standing internal waters on the condition that they meet the criteria of Article 35(a) of the LOSC.

In case a particular so-called historic strait does not satisfy the criteria of Article 35(a) of the LOSC, then it may form an exception to the applicability of the transit or non-suspendable innocent passage regime, but only when its legal regime is in conformity with Article 311(2) of the LOSC. The LOSC Annex VII Tribunal has stated that “this provision applies equally to the interaction of the Convention with other norms of international law, such as historic rights, that do not take the form of an agreement”.⁷⁰ This means that the so-called historic strait’s particular legal regime needs to be more liberal or at least as liberal in comparison to the one that would otherwise be applicable to it under Part III of the LOSC.

67 South China Sea Arbitration (the Philippines v. China). Award of the LOSC Annex VII Tribunal, 12.07.2016, para 225.

68 Caminos, Cogliati-Bantz, op. cit., p. 75.

69 South China Sea Arbitration, op. cit., para 254.

70 Ibid, para 235.

In practice, the occurrence of such Article 311(2)-type of so-called historic straits is unlikely. In general, States invoke the applicability of the concept of historic straits for restricting the passage rights to foreign ships and aircraft that would otherwise enjoy it under Part III of the LOSC. Nevertheless, in case any so-called historic strait not falling under the Article 35(a)-exception should meet the conditions of Article 311(2) of the LOSC, it would consequently fall under the potentially distinct category of sui generis straits.⁷¹

If the so-called historic strait’s legal regime does not meet either the criteria of Articles 35(a) nor 311(2) of the LOSC, then, depending on the particular characteristics of the strait, one of the other legal categories of straits applies to it. This follows directly from the ordinary meaning of the terms of the said pro-visions. According to Article 35(a) of the LOSC the right of transit passage or non-suspendable innocent passage exists in these kinds of internal waters, including straits where the establishment of a straight baseline has the effect of enclosing as internal waters areas which had not previously been considered as such and which also do not meet the criteria of sui generis straits (Article 311(2)).

Pursuant to its ordinary meaning, Article 35(a) of the LOSC unequivocally encompasses straits that have been enclosed by a straight baseline, as a result of which the strait includes internal waters which, however, were also internal waters prior to the drawing of the straight baseline(s). Article 35(a)-type of straits may be referred to as straits comprising long-standing internal waters. In this context, the notion “long-standing internal waters” is a euphemism. Since this criterion, similarly to Article 35(c) of the LOSC (on straits which are regu-lated by long-standing international conventions), creates a direct link with pre-vious legal instruments applicable to a particular maritime area, the term long-standing as used in this euphemism serves to underline the similarities between the two categories of straits and assist in grasping its sophisticated wording and meaning.

The criterion “not previously been considered as such” has also caused some confusion in the legal literature about its actual meaning. In some coastal States, e.g. in Norway and Finland, the method of drawing straight baselines was used prior to its first formulation in an international treaty, the 1958 Convention on the Territorial Sea and the Contiguous Zone.⁷² Subsequent to the International Court of Justice’s (hereinafter ICJ) legitimisation of Norway’s use of straight baselines in its 1951 judgment,⁷³ Finland established straight baselines under its 1956 Act on the Delimitation of Territorial Waters of Finland.⁷⁴

71 On sui generis straits see infra section 2.3 of Part I.

72 Convention on the Territorial Sea and the Contiguous Zone. Geneva 29.04.1958, e.i.f.

10.09.1964.

73 Fisheries case (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, pp. 131–

132.

74 Laki Suomen aluevesien rajoista (Act on the Delimitation of Territorial Waters of Finland). Adopted 18.08.1956, e.i.f. 30.07.1995 (as amended by Act No 144/1965, Act

Pirjo Kleemola-Juntunen has found that as the exception provided in Article 35(a) of the LOSC was incorporated into the LOSC from Article 5(2) of the 1958 Convention on the Territorial Sea and the Contiguous Zone, the time frame “not previously been considered as such” should therefore be understood as referring to the 1958 Convention.⁷⁵ Thus, following this reasoning, the pas-sages through e.g. the Finnish Archipelago Sea are not international straits in terms of Article 35(a) of the LOSC. Instead, under the LOSC as well as the domestic law of Finland, the waters of the Archipelago Sea are internal waters since the Finnish system of straight baselines was established prior to the 1958 Convention. Consequently, the passages through the Archipelago Sea may be regarded as so-called internal straits through which foreign vessels cannot exer-cise innocent or transit passage. Jia has made an analogous claim in respect to the Canadian straight baselines around its Arctic archipelago, as a consequence of which he deems the Article 35(a)-exception applicable also to the Northwest Passage.⁷⁶

As will be demonstrated subsequently in the example of the Estonian Sea of Straits,⁷⁷ the question of whether excluding the right of innocent or transit pas-sage inter alia in the Finnish Archipelago Sea is slightly more complex than merely assessing whether the system of straight baselines was first established prior to the 1958 Convention. In the view of the present author, Kleemola-Juntunen’s and Jia’s interpretations of Article 35(a) of the LOSC depart from the wording of the said provision. They essentially create criteria for its appli-cation that are different from the one provided in the Convention itself. Under their interpretation Article 35(a) of the LOSC would also embrace such straits the waters of which were not internal prior to the first drawing of the straight baseline(s) by the strait State.

The Virginia Commentary refers to the exception provided in Article 35(a) of the LOSC in following terms, “The exception is internal waters “which had not previously been considered as such” before the establishment of a straight baseline “in accordance with the method set forth in Article 7.””⁷⁸ Thus, as Caminos and Cogliati-Bantz point out, Article 35(a) of the LOSC means that any existing and future area of internal waters within a strait will be affected by the legal framework applicable to international straits under Part III of the LOSC if that particular area was not part of the internal waters of the coastal State prior to the establishment of straight baselines.⁷⁹ Similarly, Nandan and

No 332/1966 and Act No 981/1995). Accessible: http://www.finlex.fi/en/laki/

kaannokset/1956/en19560463.pdf (14.09.2016).

75 P. Kleemola-Juntunen. Passage Rights in International Law: A Case Study of the Territorial Waters of the Åland Islands. Rovaniemi: Lapland University Press 2014, p. 212.

76 Jia 2013, op. cit., p. 125.

77 See infra section 4 of Part V.

78 S. N. Nandan, S. Rosenne (eds). United Nations Convention on the Law of the Sea 1982:

A Commentary, vol. II. Dordrecht/Boston/London: Martinus Nijhoff 2003, p. 307.

79 See Caminos, Cogliati-Bantz, op. cit., pp. 66–67.

Anderson note that “sub-paragraph (a) means that the rules about passage in Part III do not affect any areas of internal waters within a strait, unless those areas become internal waters as a result of the drawing of straight baselines in accordance with the method set forth in Article 7.”⁸⁰

This follows the ordinary meaning of the terms of Article 35(a) of the LOSC but also its teleological meaning. It is also in accordance with the aim of the drafters of an analogous clause stipulated in Article 5(2) of the 1958 Conven-tion on the Territorial Sea and the Contiguous Zone.⁸¹ Likewise, it follows the drafting history of Article 35(a) of the LOSC as its drafters’ intention was to include “any areas of internal waters which had been considered as part of the high seas or territorial sea prior to the drawing of straight baselines” under the legal framework of Part III of the LOSC on international straits.⁸² In particular, if a strait State should include a strait in which the right of innocent (or transit) passage has been applicable within its system of straight baselines, it would not deprive the foreign ships (and aircraft) from the right of innocent (or transit) passage in that particular strait.

This literal and teleological interpretation of Article 35(a) of the LOSC embraces many straits, not least in the Baltic Sea, which fall under the category of straits comprising long-standing internal waters. By contrast, under the his-toric straits-centred approach, López Martín argued that only the Norwegian Indreleia falls within the ambit of Article 35(a) of the LOSC.⁸³ As will be exam-ined later in the study, at least two seas of straits in the Baltic Sea meet the cri-teria of Article 35(a) of the LOSC under its literal and teleological interpretation (or, likewise, under the above-referred interpretation of Jia and Kleemola-Juntunen) and in light of the 1938 Nordic Rules of Neutrality. These are the Estonian Sea of Straits and the Finnish Archipelago Sea (next to the Åland Strait) as well as potentially the Swedish Kalmarsund.⁸⁴

Notably, Canada refers to the Northwest Passage and the Russian Federation refers to the Northern Sea Route as historic straits, their Arctic waters thus forming a part of so-called historic internal waters.⁸⁵ The legitimacy of these claims depend a priori on the applicability of the Article 35(a)-exception as interpreted above. However, the legal regime of the Northwest Passage and the Northern Sea Route exemplifies also how closely Article 35(a) of the LOSC may be intertwined with Article 234 of the LOSC. The Article 234-category of

80 Nandan, Anderson, op. cit., p. 173.

81 See Palmer Cundick, op. cit., pp. 129–130. See also Jia 1998, op. cit., pp. 8–9.

82 Nandan, Anderson, op. cit., p. 173.

83 López Martín, op. cit., p. 70. It should be noted, however, that in the 1951 Fisheries case, the ICJ rejected the view that Indreleia, a nearly 2000-km long navigational route in the Norwegian internal waters leading inter alia from the North Sea to the Barents Sea, is a strait. Fisheries case 1951, op. cit., p. 132. On this matter, see e.g. C. R. Symmons.

Historic Waters in the Law of the Sea: A Modern Re-Appraisal. Leiden, Boston:

Martinus Nijhoff 2008, pp. 31, 33. See also Jia 2013, op. cit., p. 130.

84 See infra section 4 of Part V.

85 The member States of the European Union as well as the United States have protested against these claims. See e.g. López Martín, op. cit., pp. 70–71.

straits potentially provides the means for the strait States to prohibit or exten-sively restrict passage also in those Arctic straits which do not meet the criteria of Article 35(a) of the LOSC and consequently do not comprise long-standing internal waters. This necessitates next a scrutiny on the scope of Article 234 of the LOSC.

2.2. Ice-Covered Straits: Interpretation of Article 234 of the LOSC