Synopsis of the Traditional and Liberal Approach on the

In light of the foregoing, legal scholars do not share a common view on the legal categories of straits. A uniform list of types of straits is thus lacking. In some respects, this is prima facie a theoretical problem (e.g. whether straits in archipelagic waters constitute a distinct legal category of straits). Generally, however, this has significant practical implications for navigation. For example, the question about the existence of distinct types of so-called historic straits and straits comprising long-standing internal waters (Article 35(a)), as well as ice-covered straits (Article 234) lies at the heart of the dispute about passage rights in the Northeast Passage and Northwest Passage in the Arctic.

The above-referred authors expressly accept in unison only the following four types of straits:

1. Straits which link two parts of an EEZ or the high seas (Article 37);

2. Straits which are regulated by long-standing international conventions (Article 35(c));

3. Straits that are formed by an island of a strait State and its mainland coast (Article 38(1));

4. Straits that connect an EEZ or the high seas with the territorial sea of a foreign State (Article 45(1)(b)).

54 Ibid, p. 35.

55 Y. Tanaka. The International Law of the Sea. Cambridge: Cambridge University Press 2012, p. 97. Y. Tanaka. The International Law of the Sea. Cambridge: Cambridge Uni-versity Press 2015, p. 98.

56 Ibid.

57 Tanaka 2012, op. cit., pp. 97–98. Tanaka 2015, op. cit., p. 99.

These four types of straits (in combination with the obvious legal category of straits that are not used for international navigation) represent nearly half of the (potential) legal categories of straits discussed above. Therefore, it is difficult to agree with Donald Rothwell that the regime of international straits is settled.⁵⁸ As long as a consensus is lacking in the legal literature and presumably between States on the classification of straits under the LOSC, the legal regime of straits cannot be settled.

It would be reasonable, however, to add to the above-mentioned four types of straits another two legal categories that do not invoke much controversy in the legal literature. First, straits that include an EEZ or a high seas corridor (Article 36) are recognised almost unanimously as a distinct category of straits.

Only Jon Van Dyke does not expressly mention this type of straits as a distinct legal category, but this may be explained by the fact that he left his list open-ended. Erik Franckx, on the other hand, appeared to interpret Article 36 of the LOSC somewhat differently from the rest of the authors; but in any case, he does not deny the existence of a distinct legal category of straits under the said provision.

Likewise, it appears that there is no substantial disagreement over the exist-ence of a particular type of straits located in the archipelagic waters. Although the representatives of the traditional approach avoid referring to the Article 53-type of straits explicitly in their catalogues as a distinct legal category of straits, they have either left the list open (Van Dyke) or closely associated straits in the archipelagic waters with Part III of the LOSC on international straits (Nandan and Anderson, Rothwell and Stephens, Churchill and Lowe). The inclusion of straits in the archipelagic waters into the catalogue of legal categories of straits follows a liberal approach, since Article 53 is placed in Part IV of the LOSC.

Part III of the LOSC on the legal framework of straits does not include any ref-erence to straits in the archipelagic waters.

In this regard, Jia has recently commented on the appropriateness of recog-nising straits in the archipelagic waters as a distinct legal category of straits. In his review of Caminos’ and Cogliati-Bantz’s above-referred monograph on the legal regime of straits, Jia finds that

“The sections on the regime of archipelagic waters (168–205) are interesting additions to a standard account of the regime of international straits, even though it may be wondered to what extent the regime of archipelagic sea lanes passage, provided under Part IV of [the LOSC], is similar to that of Part III (185). The similarity of these two regimes would readily be acknowledged, were it referred to the, more or less, similar language used in expressing the respective rights of passage and overflight. However there is perhaps one distinction that should be drawn between them. The archipelagic sea lanes run along normal routes of pas-sage or overflight (Article 53 (4), [LOSC]), which are defined by reference to

58 D. R. Rothwell. International Straits. – D. R. Rothwell, A. G. Oude Elferink, K. N. Scott, T. Stephens (eds). The Oxford Handbook of the Law of the Sea. Oxford: Oxford University Press 2015, p. 133.

continuous axis lines (Article 53 (5)). In contrast, international straits, in the sense of Part III, are natural waterways, each being a geographical unit. They are not readily assimilated to such ‘artificial’ waterways as navigational routes which are, at most, ‘composite’ straits. Examples similar to archipelagic sea lanes can perhaps be found in singular cases of composite straits, such as the Northwest Passage off the Canadian coast in the Arctic. There is reason to view that Passage as a combination of straits that mirrors a route formed by archipe-lagic sea lanes.”⁵⁹

Thus, Jia appears to relate the rationale behind recognising straits in the archi-pelagic waters as a distinct category of straits with the existence of such ‘com-posite’ straits which bear resemblance to the archipelagic sea lanes due to their character as prolonged and continuous waterways. Yet it is questionable whether this relevant. Rather, the fundamental problem here appears to be the legal definition of an international strait. This term has not been defined in legal instruments, including the LOSC.

However, the criteria of an international strait (as put forward above)⁶⁰ are met with regard to a strait in the archipelagic waters if its width is less than 24 miles as measured from coast to coast and it is used for international navigation.

Straits in the archipelagic waters maintain their characteristics and function as straits. Article 53 of the LOSC merely provides a distinct legal regime that exempts them from the scope of transit and non-suspendable innocent passage under Part III of the LOSC.⁶¹ Thus, in the context of straits, Article 53 of the LOSC belongs to the group of provisions comprised of Articles 35(a–c) and 36 which provide exceptions to the transit and non-suspendable innocent passage regimes. Arguably, it would have been appropriate for the drafters of the LOSC to also express this in section 1 of Part III of the LOSC in view of ensuring coherence and clarity in respect to the legal framework on straits.

It also follows from the systematic interpretation of the LOSC that another legally relevant category of straits should be recognised. This category com-prises non-international straits located in territorial sea in respect of which none of the legal regimes of international straits applies. Therefore, the ordinary regime of suspendable innocent passage applies (Article 17) in such straits. In practice, such non-international straits can include e.g. straits which connect an EEZ or the high seas with the territorial sea of one of its strait States (straits which do not meet the condition of a foreign State as stipulated in Article 45(1)(b)).⁶² Such Article 17-type of straits appear to form a distinct legal

59 B. B. Jia. The Legal Regime of Straits: Contemporary Challenges and Solutions. By Hugo Caminos & Vincent P. Cogliati-Bantz. – 85 The British Yearbook of International Law 2015(1), p. 184.

60 Supra section 1.1 of Part I.

61 For the differences between the archipelagic sea lanes passage and transit passage, see e.g. Klein, op. cit., pp. 34, 36. See also Oxman, op. cit., p. 405. The characteristics of the transit and non-suspendable innocent passage are discussed in supra section 1.1 of Part I.

62 For a discussion on the implications of the wording of Article 45(1)(b) of the LOSC in the context of the Article 17-category of straits, see infra section 4.1 of chapter 1 in Part III.

gory of non-international straits, albeit none of the above-referred authors has apparently expressly acknowledged this. The lack of legal debate on this matter may be explained by the fact that, in practice, this is a relatively insignificant legal category of straits similarly to such straits which are not used for inter-national navigation.

However, there are significant disagreements over the existence of the so-called historic straits and straits comprising long-standing internal waters (Arti-cle 35(a)), ice-covered straits (Arti(Arti-cle 234) and sui generis straits (Arti(Arti-cle 311(2)). In the legal literature, there are clear discrepancies between the views of the representatives of the traditional and liberal approach to these types of straits. Thus, the principal difference between the traditional and liberal approaches ultimately rests on the (non-)recognition of only a few distinct legal categories of straits. Yet in practice, this has significant implications for the passage rights of foreign ships and aircraft in and over straits. Moreover, even the liberal authors, who do not limit themselves only to Part III of the LOSC when classifying straits, are far from sharing a mutual view on the existence of these types of straits.

While most of the authors confirm the existence of a distinct legal category of straits in the archipelagic waters under Part IV of the LOSC, it is not so common for them to agree with the existence of potentially another two legal categories of straits, i.e. Article 234 and 311(2)-types of straits, which are like-wise founded on such LOSC provisions that fall outside of Part III of the LOSC.

Therefore, these two potentially distinct categories of straits in addition to Arti-cle 35(a)-type of straits will be subjected to further scrutiny.

2. The Legal Regimes of Historic Straits,