The Classification of Straits: Liberal Approach

It is characteristic for the liberal approach to add some categories of straits to the ones explicitly provided in Part III of the LOSC. There are many reasons why authors may depart from the text of Part III of the LOSC when categorising straits. This may be done intentionally or mistakenly. In the latter instance, the writer’s intention may not necessarily be that of adopting a liberal approach and it thus should not be considered as such. Such practices include the incomplete classification of the legal categories of straits, e.g. open-ended lists. Neverthe-less, by enlisting only some selected legal categories of straits, the author inev-itably downplays the importance of the ones left unnoticed.

In The Regime of Straits in International Law, Bing Bing Jia appears to have deliberately not delved into the positivist classification of straits. His mono-graph lacks a clear list of categories for straits. Instead, he examines other determinants of an international strait, such as their geographical criteria (e.g.

straits between internal waters and the high seas, straits between the territorial sea and the high seas, straits between parts of the high seas) and the criterion of use for international navigation.

However, Jia’s study also includes elements of positivist classification, e.g.

in examining special regimes of passage under long-standing treaties (Article 35(c) of the LOSC) and the regime of transit passage (Article 37 of the LOSC).

Perhaps one of his most liberal assertions is that of the existence of a separate category of straits comprising historic waters, which he appears to distinguish

30 J. Symonides. Freedom of Navigation in International Straits. – 17 Polish Yearbook of International Law 1988, p. 215.

from straits comprising long-standing internal waters under Article 35(a) of the LOSC.³¹ In a recent article, however, Jia essentially merges his assertion of the existence of historic straits with the Article 35(a)-exception on straits compris-ing long-standcompris-ing internal waters.³²

Another author who asserts the existence of historic straits is Ana López Martín. In her monograph titled International Straits: Concept, Classification and Rules of Passage, the author interprets Article 35(a) of the LOSC liberally by coming to the conclusion that the applicability of this category of straits rests on the condition of historic entitlements which, if existent, leads to the strait being categorised as a historic strait.³³ In total, López Martín presents in her catalogue eight 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 which are formed by an island of a strait State and its mainland coast (Article 38(1));

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

5. Straits in archipelagic waters (Article 53);

6. Straits which include an EEZ or high seas corridor (Article 36);

7. Historic straits (Article 35(a));

8. Straits regulated by a treaty compatible with the LOSC (Article 311(2)).

As examined below, the interpretation of Article 35(a) of the LOSC in a way which centres on the concept of historic straits is not wholly in line with the ordinary meaning of its terms in their context and in the light of the pro-vision’s object and purpose.³⁴ In addition, among López Martín’s other liberal assertions is the existence of the Article 311(2)-category of straits as it is not explicitly provided for in the text of Part III of the LOSC. According to Article 311(2), the LOSC does not alter the rights and obligations of States Parties which arise from other agreements compatible with the LOSC and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under the LOSC. López Martín thus notes that

“[A] treaty which specifically regulates the passage through a determined strait will be applicable on condition that its provisions are compatible with those of the [LOSC] and the rights and obligations in Part III are not affected. That is to say, if the treaty contains a regime of passage for this strait which is more liberal

31 B. B. Jia. The Regime of Straits in International Law. Oxford: Clarendon Press 1998, pp. 8–9, 75–76. See also infra section 2.1 of Part I.

32 B. B. Jia. The Northwest Passage: An Artificial Waterway Subject to a Bilateral Treaty Regime. – 44 Ocean Development & International Law 2013(2), pp. 125, 127.

33 A. G. López Martín. International Straits: Concept, Classification and Rules of Passage.

Heidelberg/Dordrecht/London/New York: Springer 2010, p. 70.

34 See infra section 2.1 of Part I.

than the one which would correspond by applying the relevant provisions in Part III, then this treaty is applicable.”³⁵

The existence of the category of straits regulated by a treaty compatible with the LOSC (hereinafter sui generis straits) is scrutinised below.³⁶ Yet, unlike the other authors, López Martín also interprets Article 45(1)(b) of the LOSC liber-ally as she comes to the conclusion that this provision, which applies the regime of non-suspendable innocent passage to straits that connect an EEZ or the high seas with the territorial sea of a foreign State, may be applied to all so-called dead-end straits³⁷ leading to a territorial sea of a State, including to the territo-rial sea of one of the strait States.³⁸

In their monograph The Legal Regime of Straits, Hugo Caminos and Vincent Cogliati-Bantz do not provide a clear, concise and exhaustive list of the legal categories of straits. However, one may infer such a list from the book’s second and third parts, which address the transit passage and archipelagic sealanes pas-sage regimes as well as exceptions to the transit paspas-sage regime. In essence, Caminos and Cogliati-Bantz refer to the same eight categories of straits men-tioned by López Martín and listed above: straits which link two parts of an EEZ or the high seas (Article 37);³⁹ straits which are regulated by long-standing international conventions (Article 35(c));⁴⁰ straits which are formed by an island of a strait State and its mainland coast (Article 38(1));⁴¹ straits which connect an EEZ or the high seas with the territorial sea of a foreign State (Article 45(1)(b));⁴² straits which include an EEZ or the high seas corridor (Article 36);⁴³ straits in the archipelagic waters (Article 53);⁴⁴ straits comprising long-standing internal waters (Article 35(a));⁴⁵ sui generis straits (Article 311(2)).⁴⁶

Thus, Caminos and Cogliati-Bantz interpret the interrelationship between some provisions of the LOSC and its Part III on the legal regime of straits liber-ally. This concerns prima facie Article 53 on straits in archipelagic waters as well as Article 311(2) of the LOSC which pertains to sui generis straits. Fur-thermore, Caminos and Cogliati-Bantz are rather supportive of a liberal

35 López Martín, op. cit., p. 80.

36 See infra section 2.3 of Part I.

37 The term dead-end straits is widely used for referring to Article 45(1)(b)-type of straits.

See also e.g. W. L. Schachte Jr, J. P. A. Bernhardt. International Straits and Navigational Freedoms. – 33 Virginia Journal of International Law 1992–1993, p. 534.

38 López Martín, op. cit., p. 100. For critique on this interpretation, see infra section 4.1 of chapter 1 in Part III.

39 H. Caminos, V. P. Cogliati-Bantz. The Legal Regime of Straits: Contemporary Challen-ges and Solutions. Cambridge: Cambridge University Press 2014, p. 208.

40 Ibid, pp. 71–72.

41 Ibid, p. 46.

42 Ibid, p. 54.

43 Ibid, p. 42.

44 Ibid, pp. 184–188.

45 Ibid, pp. 65–66.

46 Ibid, pp. 107–108.

pretation of Article 234 of the LOSC pertaining potentially to international straits that are wholly or partly located in ice-covered areas and covered with ice for most of the year (hereinafter ice-covered straits). This is subject to fur-ther discussion below.⁴⁷

Lewis Alexander’s list comprises the first seven of the above-mentioned cat-egories of straits (thus excluding sui generis straits).⁴⁸ While Caminos and Cogliati-Bantz approach Article 35(c) of the LOSC traditionally and argue for a closed list of straits (the Danish Straits, the Åland Strait, the Strait of Magellan and the Turkish Straits (Bosporus and the Dardanelles)),⁴⁹ Alexander does not wholly share this approach. Alexander notes that in addition to the Turkish and Danish straits, the “[t]wo other straits that might conceivably be affected by the article are Gibraltar and Tiran.”⁵⁰ Alexander substantiates this claim by examin-ing the relevant treaties that regulate passage in these straits. This is noteworthy because very few authors who have interpreted Article 35(c) of the LOSC have departed from the generally accepted list of the above-mentioned straits falling under its scope.⁵¹ Thus, it seems that in Alexander’s view, the list of Article 35(c)-straits has not been written in stone.

Other two authors related to the United States Government, William Schachte Jr and Peter Bernhardt, provide a closed list of legal categories of straits which includes the above-referred first six types of straits.⁵² Unlike Alexander’s categories of straits, Schachte Jr and Bernhardt omit (in addition to the sui generis straits) straits comprising long-standing internal waters (Article 35(a)) from their list. Yet Alexander, Schachte Jr and Bernhardt all consider straits in archipelagic waters as a distinct category of straits, despite the fact that this type of straits is not included in Part III of the LOSC.

Analogously to Schachte Jr and Bernhardt, Erik Franckx makes reference to all of the above-listed first six categories of straits (incl. straits in the archipe-lagic waters) and not to straits comprising long-standing internal waters (Article 35(a)) and sui generis straits (Article 311(2)).⁵³ Franckx refers to straits with a route through the high seas or an EEZ that is not of similar convenience (Article 36 to the contrary) as a distinct category of straits. Such a classification is not clearly provided for in the text of the LOSC. Franckx infers from Article 36 of the LOSC on straits that include an EEZ or the high seas corridor that if the EEZ or the high seas corridor is not of similar convenience to an ordinary route through the high seas or an EEZ, then the regime of transit passage should be

47 See infra section 2 of Part I.

48 L. M. Alexander. International Straits. – H. B. Robertson, Jr. (ed). The Law of Naval Operations. Newport: Naval War College Press 1991, pp. 91, 95–96, 99–103.

49 Caminos, Cogliati-Bantz, op. cit, p. 77. On this matter, see also infra section 3 of Part I.

50 Alexander 1991, op. cit., p. 101.

51 Notably, Rothwell and Stephens also adopted a liberal approach towards Article 35(c) of the LOSC. See supra section 1.3 of Part I.

52 Schachte Jr, Bernhardt, op. cit., p. 538.

53 E. Franckx. The U.S.S.R. Position on the Innocent Passage of Warships Through Foreign Territorial Waters. – 18 Journal of Maritime Law and Commerce 1987(1), pp. 34–35.

applicable.⁵⁴ However, it might not necessarily be the case that the right of transit passage applies in such a strait. It is equally possible that the regime of non-suspendable innocent passage applies in case the strait leads to the territo-rial sea of a foreign State or it is formed by an island of a strait State and its mainland coast. In any case, however, it would not necessarily form a distinct category of straits under the LOSC, since, as provided in Article 36, in such instance Part III of the LOSC would be applicable along with its conventional categories of straits.

Yoshifumi Tanaka also refers to straits in the archipelagic waters as a dis-tinct category of straits.⁵⁵ Similarly to Franckx, and Schachte Jr and Bernhardt, Tanaka omits from his well-structured catalogue of the above-mentioned six categories of straits the Article 35(a)-type of straits comprising long-standing internal waters.⁵⁶ In a slightly different context, he nevertheless refers to Article 35(a), but not as providing for a distinct category of straits (similarly to Nandan and Anderson).⁵⁷

1.5. Synopsis of the Traditional and Liberal