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The International Law of the SeaIndia and the UN Convention of 1982$

Print publication date: 2010

Print ISBN-13: 9780198060000

Published to Oxford Scholarship Online: October 2012

DOI: 10.1093/acprof:oso/9780198060000.001.0001

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The Territorial Sea, International Straits, and Archipelagos

The Territorial Sea, International Straits, and Archipelagos

Chapter:
(p.63) 3 The Territorial Sea, International Straits, and Archipelagos
Source:
The International Law of the Sea
Author(s):

O.P. Sharma

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198060000.003.0003

Abstract and Keywords

This chapter describes the legal status of territorial sea, international straits, and archipelagic waters around a coastal State. The author describes how territorial waters around a coastal State were debated (it now rest at twelve nautical miles), and how the sovereignty of these waters, the seabed under them, and the air space above them was ensured. The Right of Innocent Passage— especially that of warships—is then discussed. The author goes on to describe problems relating to the delimitation of the territorial waters between adjacent coastal States. The most important juridical question concerning ocean navigation discussed in the Third United Nations Conference on the Law of the Sea (UNCLOS) was the nature of the Right of Innocent Passage through international straits. The Corfu Channel decision (allowing warships and merchant vessels free transit through international states during peace time) had considerable impact upon deliberations of the International Law Commission. The author also shows how India closely monitored the extent of support to the concept of Unimpeded Transit Passage. The Chapter concludes with a discussion of drawing of baselines over archpelagic waters and their control by coastal States, with a focus on India’s interests in the Andaman and Nicobar islands. The evolution and formal acceptance of the concept of archipelagic States for the first time was a distinctive achievement of the Third UNCLOS.

Keywords:   territorial sea, international straits, archipelagic waters, law of the sea, baselines, Right of Innocent Passage, Unimpeded Transit Passage, International Law Commission, United Nations Conference on the Law of the Sea, Corfu Channel

Remember that not getting what you want is

Sometimes a wonderful stroke of luck.

Dalai Lama XIV1

After passing through numerous vicissitudes of history, the doctrine of the freedom of the seas came to be accepted only by the beginning of the nineteenth century. Even as the utility of this doctrine was being debated, there was a general recognition that every maritime State had a right to exercise jurisdiction over some extent of the neighbouring sea for its own protection.2 Reasons justifying this extension of sovereignty, according to Colombos, may be summarized under three heads:

  1. 1. The security of the State demands that it should have exclusive possession of its shores and that it should be able to protect its approaches;

  2. 2. For the purpose of furthering its commercial, fiscal, and political interests, a State must be able to supervise all ships entering, leaving; or anchoring in its territorial waters;

  3. 3. The exclusive exploitation and enjoyment of the products of the sea within a State's territorial waters is necessary for the existence and welfare of the people on its coasts.3

Legal Status of the Territorial Sea

As to the precise juridical nature of a coastal State's rights over the territorial sea, some jurists claimed that coastal States either had proprietorial rights in their territorial seas, or at least enjoyed sovereignty or plenary jurisdiction over them. The practice of many States such as Britain, the US, and several Latin American states supported this view. On the other hand, States such as France and Spain did not claim ownership or sovereignty over the territorial (p.64) Sea, but merely jurisdictional competence over adjacent waters for specific purposes, notably defence and regulation of customs and fishing.4 These two broad approaches coexisted for several decades. These were considered by an English Court in the Franconia case in which the question of the legal status of the territorial sea arose. The Court reaffirmed the ‘rightful jurisdiction’ of the Crown over territorial waters, which were ‘deemed by international law to be within the territorial sovereignty of Her Majesty’.5 This position has been consistently adhered to ever since. The principle was sufficiently well established in State practice for J.P.A. Francois to adopt it in his first report to the International Law Commission in 1950, and for it to survive, almost unquestioned, throughout the Law Commission debates and the 1958 Geneva Conference.6 A substantially similar provision, in which reference has been inserted to archipelago waters after that to internal waters, appears in the United Nations Convention on the Law of the Sea, 1982.7 Sovereignty over the superjacent airspace has been a firm principle of international law, enshrined in Article 2 of the 1944 Convention on International Civil Aviation, Article 2 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, and Article 2(2) of the 1982 UN Convention on the Law of the Sea. The question of the legal status of the seabed was ignored until the present century because of lack of significant interest in the use of the seabed and little State practice from which rules of international law concerning the seabed might have been deduced. It was, however, agreed that there should be included an Article stating that ‘the territory of a coastal State includes also the air space above the territorial sea, as well as the bed of the sea, and the sub-soil thereof’.8 Thus, the extension of sovereignty to the seabed, waters, arid airspace was recognized by 1930, and is now taken as one of the basic rules of the law of the sea.9

Extent of Territorial Sea

As the basis of a coastal State's claim to a belt of the sea is security, its extent was supposed to be measured by the power of the littoral sovereign. Cornelius Bynkershoek translated the idea into a maxim, ‘The domain of the land ends where the power of the arms terminates.’ He declared that the territorial dominion extended as far as projectiles could be fired from a cannon on the shore. This was supposed to be one marine league or three-nautical miles at that time. Thus was born the ‘cannon shot’ rule.10 Although the cannon (p.65) range extended much further through the years, the three-mile rule came to be accepted and adopted by the big maritime powers, especially by Great Britain and later by the US, since it was found to be a convenient compromise between the conflicting interests of the coastal States and the international community.11 Whatever its historical origins, there is no doubt that the three-mile limit for territorial waters began its ascendancy in the late eighteenth century and developed into a generally recognized limit in the following 130 years, due in large part to its being consistently championed by the two major sea powers.12

Hague Codification Conference

By 1930, the disagreements over the breadth of the territorial sea had been prominent enough to be considered by The Hague Codification Conference. Most of the participating nations favoured a three-mile or a six-mile breadth. Only the Soviet Union claimed a twelve-mile breadth. Although it appeared that a greater number of States were willing to accept the three-mile limit, the matter of the recognition of a contiguous zone for purposes such as customs, fiscal, sanitary, and immigration controls was tied into the discussion and voting. Since there was not a sufficient number of countries in favour of both a three-mile limit and a contiguous zone, and the diversity of views was so great, no proposal on the width of the territorial sea ever came to a vote. The Hague Conference concluded without reaching an agreement on the breadth of the territorial sea.13

International Law Commission

With the birth of the UN, a new attempt was made to come to an international decision as to the legal breadth of the territorial sea. The International Law Commission studied all facets of the law of the sea and submitted its Final Draft report to the General Assembly in 1956.14 The Commission recognized that international practice was not uniform as regards the delimitation of the territorial sea and considered that international law does not permit an extension of the territorial sea beyond twelve-miles although a number of States had fixed a breadth greater than three-miles.15 An attitude of uncertainty was thus the predominant characteristic of the discussion in the International Law Commission on the width of the territorial sea. The Commission, however, expressed itself strongly in declining to approve the notion that each State was, in its discretion, free to set (p.66) its own limit as to the breadth of the territorial sea and rejecting the extreme claims advanced by the Latin American states.16

First UNCLOS

With the Commission's report as a guide, the First UNCLOS, met in Geneva from February 24 to April 28, 1958. One product of the Conference was the Convention on the Territorial Sea and the Contiguous Zone, 1958. Its twenty-three Articles summarize most of the law of the territorial sea. Conspicuously absent is any affirmation of the breadth of the territorial sea. The 1958 Geneva Conference described the limit of the territorial sea by saying only that ‘The outer limit of territorial sea is a line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea’.17 A review of the Conference records, however, leaves little doubt that the vast majority of delegations disapproved of a territorial sea of a greater breadth than twelve-miles, but this was not so stated in the Convention itself.

Although the US delegation had entered the Conference with the strong belief that the three-mile limit was firmly established in international law, of the seventy-three countries in attendance, hardly more than twenty adhered to the three-mile rule at the time the Conference convened. Among the dissenters were Chile, Ecuador, and Peru; which claimed 200-miles. Canada and Iceland desired twelve-miles. India, Burma, Thailand, Cambodia, Korea, and South Vietnam wanted an extension of the three-mile limit in order to restrict Japanese fishing. The Philippines and Indonesia asserted special rights in large areas of the high seas which would close important navigation and aerial routes to and between India, Australia, and New Zealand. And the Soviet Union, together with its satellite block arid several Arab States, wanted a twelve-mile limit, predominantly for politico-military purposes.18 In an effort to reach agreement, the US delegation proposed the ‘six-plus-six’ compromise proposal. Of all the proposals at the Conference relating to the breadth of the territorial sea, this proposal received the most votes. However, it failed passage by only seven votes.19

Second UNCLOS

The UN General Assembly acted quickly and called for another conference in early 1960 with a limited mandate to consider only two related issues of the breadth of territorial sea and exclusive fisheries (p.67) zone.20 A nearly successful effort at the Second Geneva Conference was the joint US-Canada proposal, calling for a six-mile territorial sea and a six-mile fishing zone within which historic fishing rights would be respected for an agreed number of years. In a dramatic finale to the 1960 Conference, the proposal was defeated by a single vote.21 With the failure of the Second Law of the Sea Conference to reach an agreement, it was not clear what the law was.22 Arthur H. Dean, the leader of the US delegation, presented a somewhat unequivocal stand: ‘It is unwarranted to assume that the traditional three-mile limit of the territorial sea is no longer international law. The fact that a two-thirds vote could not be obtained in favour of the three-mile limit shows merely a desire on the part of many nations to extend their territorial sea, not that such an extension in international law has been accomplished’.23 Grigory Tunkin, Chairman of the Soviet delegation, disagreed. He was adamant in stating ‘It was conclusively shown in speeches to the Conference that the three-mile limit is not and never has been a generally recognized rule in the law of the sea. The Conference once and for alt buried the three-mile limit legend’.24 Not in the least conceding the correctness of Tunkin's conclusion, Dean summarized US policy at the close of the 1960 Conference:

We have made it clear from the beginning that in our view the three-mile is and will continue to be established international law, to which we adhere. Unilateral acts of States claiming greater territorial seas are not only not sanctioned by any principle of international law but, are indeed in conflict with the universally accepted principles of freedom of the seas.25

Advantages/Disadvantages of a Broad Territorial Sea

Before we advert to the discussion and negotiations in the Third UNCLOS, it is pertinent to highlight some of the important advantages of a broad territorial sea. Perhaps the most important argument made for the extension of the territorial sea to a particular distance was that the coastal State needed to produce more food from or employ more people in coastal fishing. The alleged requirements of military security were possibly second in importance to claims about fisheries, among contemporary arguments for an expansive width of territorial sea. A broader territorial sea would allegedly strengthen the security interests of the country or afford a greater measure of security from the major naval powers. As a corollary to the above, in time of war, when a coastal State assumed the status of (p.68) neutrality, the area within which search, seizure, and sinking of ships would be prohibited, would be wider and farther from the coast. With a broader territorial sea, the coastal State would be able to exercise more effective supervision in the wider area of the sea and could better prevent smuggling and other offences against the fiscal interests of the coastal State or prevent undesirable activities such as illegal immigration. A broader territorial sea would also prevent surveillance from ships at sea or prevent reconnaissance of water approaches to landing sites.

Some of the disadvantages of a wider breadth of territorial sea may also be noted. With regard to the security of the coastal State in the sense of defence against military attack, the development of contemporary weapon technology has made all widths largely obsolete. Radha Binod Pal, India's representative to the International Law Commission, made this point forcefully when he said that in view of present military technology and likely future developments in weaponry, ‘any claimed width for the territorial sea, with a chance of acceptance by the general community of States, especially in a time when even relatively weak States may maintain weapon systems of very considerable range and speed, is irrelevant’.26 A territorial sea of twelve-miles would greatly increase the burden of neutral countries responsible for preventing use of their territory for belligerent advantage. Many important international straits would be fully overlapped by a twelve-mile territorial sea, which would seriously impair the deployment and mobility of a naval fleet. Increased breadth of the territorial sea would result in a larger area of the ocean coming under the sovereignity of the coastal state. This may lead to increased cost of navigational aids and extra expense of re-routing airlines and merchant ships in order to avoid restrictive coastal state regulations, etc. As Dean, Chairman of the US Delegation, observed:

the operation of commercial shipping on, or commercial aircraft over, waters would be subjected to interminable delays. Indeed, it would seem to have been part of the Russian purpose in backing extension of the territorial sea so as to hamper the commerce of the free world as a part of its ‘sand-in-the-gear box’ technique.27

The expense and inconvenience of supervising, policing, patrolling, etc. would increase due to the extension of the territorial sea to twelve-miles or more. It would also increase the responsibility of (p.69) a coastal State to warn foreign shipping of imminent dangers to navigation in its territorial waters.

Third UNCLOS

In the United Nations Convention on the Law of the Sea, 1982, a large number of provisions, particularly Articles 17 to 32 concerning the territorial sea, are identical to or substantially similar to corresponding provisions of the 1958 Geneva Convention. There were very few issues which required consideration on this topic, since the two Geneva Conferences on the Law of the Sea had resulted in substantial agreements with regard to most of the issues and the general trend in the various proposals and subsequent discussions appeared to indicate a preference for treating such matters as settled. The major item on which no agreement had been reached in the previous conferences was the breadth of the territorial sea. The question of the breadth of the territorial sea, however, stood settled at the Caracas Session itself by the general acceptance of the right of a coastal State to fix the maximum breadth of its territorial sea at twelve-nautical miles, and Article 3 of the UN Convention makes a provision to this effect. There was no further discussion on this topic in the Conference.

The Right of Innocent Passage

With the acceptance of the twelve-mile limit as the breadth of the territorial sea, the area of the high seas available to such unrestricted, unqualified passage has been significantly reduced. It is for this reason that the attributes of innocent passage have become increasingly important to the maritime world. The Law of the Sea Convention clarifies the meaning of the phrase ‘innocent passage’ and defines passage to mean navigation through the territorial sea for the purpose of: (1) traversing the sea without entering internal waters or calling at a roadstead or port facility outside internal waters; and (2) proceeding to and from internal waters or call at such roadstead or port facility.

Passage must be continuous and expeditious. It includes not only actual passage through the territorial sea, but also stopping and anchoring in so far as this is incidental to ordinary navigation or rendered necessary by force majeure or distress,28 The Law of the Sea Convention expressly extends the distress exception to cases where (p.70) one ship seeks to assist another ship, person, or aircraft in danger or distress.29 This humanitarian principle that a ship in distress from a force majeure may enter foreign territorial waters or anchor or may put into port with complete immunity from local jurisdiction has long been recognized in international law.30 There is no right of lying to, or of anchorage, or of hovering, except when such halts are a necessary incident of proper navigation. All submarines and other underwater vehicles must navigate on the surface and show their flag.31 The 1930 Hague Codification Conference articles introduced a new element into the definition of ‘passage’ by including ships travelling through the territorial sea to or from internal waters within the scope of the right of innocent passage to enable coastal States to retain the right to take, impose, or enforce conditions for admission to these waters.32 The Geneva Convention on the Territorial Sea adopted the same position which has been carried over into the United Nations Convention on the Law of the Sea, 1982, modified slightly so as to also include ships navigating the territorial sea in order to call at roadsteads or port facilities outside internal waters within the scope of the passage.33 The extension of the right of innocent passage to voyages to and from ports was regarded by the International Court of Justice in the Nicaragua case34 as now being established in customary international law. The Court found that paragraph 1 (b) of Article 18 ‘does no more than codify customary international law’ as part of the freedom of communications.

The word ‘innocent’ is to be interpreted with reference to the interests of the coastal State and perhaps its meaning appears more clearly in its French equivalent ‘inoffensif’. The criterion of innocence lacked any clear definition for a long time. During the nineteenth and early twentieth centuries, Anglo-American practice appears to have regarded innocence as a question distinct from that of compliance with coastal State laws. From their point of view, it was not necessary that any coastal law should have been violated in order that the passage is non-innocent; it was enough if vital coastal interests, such as security, were prejudiced. It would thus seem to follow that not all infractions of coastal laws would deprive passage of its innocent character, but only those, which did have such a prejudicial effect. Further, if prejudice to coastal interests was the criterion, it would not be necessary to point to any particular act of the foreign ship as being incompatible with innocence, and the mere presence of the ship could be enough to threaten the coastal State.35 The question (p.71) also came up for full discussion in the Corfu Channel case 36 before the International Court of justice. In that case, two British warships were denied passage through the Corfu Channel and the important point relevant at this stage was that, in defining the right of innocent passage, the court referred to the manner of passage as the decisive criterion, holding that as long as the passage was conducted in a manner which posed no threat to the coastal State, it was to be regarded as innocent. The whole tenor of the judgment made it clear that ‘innocence’ is a quality capable of objective determination and that a coastal State's view would not necessarily be conclusive.37

Geneva Conference on the Law of the Sea, 1958

An amendment proposed to the International Law Commission draft by India was adopted which added the words ‘peace, good order or’ before ‘the security’ since coastal States had greater interests than merely security.38 This text, which seems to be consistent with the actual practice of States and thus with customary international law, does not require the commission of any particular act, or violation of any law, before innocence is lost. Nor does violation of a coastal law necessarily remove innocence unless the violation actually prejudices the coastal interests. This rule is, however, subject to one exception incorporated in the 1958 Convention:

Passage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal State may make and publish in order to prevent these vessels from fishing in the territorial sea.39

This provision was adopted at the 1958 Conference with the express purpose of introducing an additional element into the criteria of innocence applicable to fishing vessels and represented the only case in which breach of a coastal State law ipso facto deprives passage of its innocent character. This provision has, however, lost much of its importance with the emergence of the concept of the EEZ, and massive extension of the fisheries jurisdiction after the adoption of the 1982 United Nations Convention on the Law of the Sea.

UN Convention on the Law of the Sea, 1982

The United Nations Convention on the Law of the Sea recognizes the traditional right of innocent passage through the territorial sea and some specificity as to what kinds of activities will contravene innocence of passage is included.40 The intention was to clarify the (p.72) concept of innocent passage and make it more precise. Article 19 (2) of the 1982 Convention provides that passage of a foreign ship shall be considered to be prejudicial to the peace, good order, or security of the coastal state, if in the territorial sea it engages in any of the listed activities. There follows a list, including any exercise or practice with weapons, collecting information to the prejudice of the defence or security of the coastal state, spying, propaganda, launching, landing, or taking on board of any aircraft or military device, embarking or disembarking persons or goods contrary to customs, fiscal, sanitary, or immigration, research or survey activities, and interference with coastal communications or other facilities.

Article 21 specifies matters as to which the coastal State may adopt laws and regulations relating to innocent passage. The coastal State is required to give due publicity to all such laws and regulations. Article 22 empowers a coastal state, where necessary, having regard to safety of navigation, to require foreign ships passing through the territorial sea to use such sea lanes and traffic separation schemes as it may designate or prescribe for the regulation of the passage of ships. Article 24 casts a duty on the coastal State not to hamper the innocent passage of foreign ships through the territorial sea or impose requirements which have the practical effect of denying or impairing the right of innocent passage or discriminate in form or in fact against the ships of any State. Under Article 25, the coastal State may ‘take the necessary steps in its territorial sea to prevent passage which is not innocent’. The Article also authorizes the coastal State, ‘without discrimination in form or in fact among foreign ships to suspend temporarily in specified areas of its territorial sea, the innocent passage of foreign ships, if such suspension is essential for the protection of its security, including weapon exercises. Such suspension shall take effect only after having been duly published’. India had taken recourse to this provision in 1980 when the innocent passage of foreign ships had been suspended off the Andaman and Nicobar Islands on account of security of State. The suspension was duly promulgated in the annual Notice to Mariners and through other diplomatic channels. This directive remained operative for almost four years, and was revoked in 1985 on receipt of an Aide Memoir from Britain. The British government had acknowledged the right of India to suspend temporarily the right of innocent passage on account of its security but had questioned; the wisdom or need for keeping the innocent passage suspended for so long.41 Finally, Article 30 enjoins

(p.73) if any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately.

Innocent Passage of Warships through the Territorial Sea

The question of the right of warships to innocent passage through the foreign territorial waters has long been one of the most controversial aspects of the law of the sea. This right is generally confined under customary international law to merchant vessels or other non-government vessels, and it certainly did not extend to warships. By the time of the 1930 Hague Codification Conference, the US considered that warships could pass as a matter of courtesy but not as a matter of right:

As a general rule, a coastal State will not forbid the passage of foreign warships in its territorial sea, and will not require a prior authorization or notification. The coastal State has the right to regulate the conditions of such passage.42

While the Corfu Channel case settled the right of warships to innocent passage through straits used for international navigation, it did not expressly deal with the rights of warships in the territorial sea.43 This question, therefore, remained unsettled when the International Law Commission took up for consideration the regime of the territorial sea.

Discussions in the International Law Commission

At the Sixth Session of the International Law Commission in 1954, the Commission took the view that passage should be granted to warships without prior authorization or notification.44 At its Seventh Session in 1955, after noting the comments of certain governments and reviewing the question, the Commission felt obliged to amend this Article so as to stress the right of the coastal State to make the right of passage of warships through the territorial sea subject to prior authorization or notification.45 The Commission reconsidered the matter at its Eighth Session, in the light of comments received from certain governments, which pointed out that in practice, passage was affected without formality and without objection on the part of a coastal State. The majority of the Commission, however, saw no reason to change its view. The Commission pertinently observed:

(p.74) While it is true that a large number of States do not require previous authorization or notification, the Commission can only welcome this attitude, which displays a laudable regard for the principle of freedom of communications, but this does not mean that a State could not be entitled to require such notification or authorization, if it deemed necessary to take this precautionary measure. The Commission is aware that a number of States do require previous notification or authorization, the Commission is not in a position to dispute the right of States to take such a measure.46

Geneva Conference on the Law of the Sea, 1958

The International Law Commission's text, despite opposition from a few western maritime powers, was in fact adopted by the First Committee of the UNCLOS, 1958, by a vote of 54 to 5, with 8 abstentions.47 However, in the plenary, having adopted a motion to vote separately on the words ‘authorization’ in draft Article 24, the Conference, by a vote of 45 to 27, with 6 abstentions, rejected these words.48 The Conference was thus left with the option of either accepting a text requiring only a prior notification by the coastal State or of rejecting the text altogether. Several States which wanted the right of ‘authorization’ by coastal States refused to accept this truncated right and, therefore, voted against the Article in its emasculated form, with the result that it was defeated and eliminated from the Convention.49

From this historical record, it is difficult to conclude that warships have an untrammelled right of innocent passage through territorial waters. The failure of the Convention to specifically mention the right of passage for warships through territorial waters cannot be interpreted to eliminate the coastal State's right under the customary international law to require notification and authorization before such a passage is permitted. Max Sorensen aptly summarized the position by saying,

consequently, the Convention as it now stands contains no special provision relating to the innocent passage of warships but only the general rules applicable to all ships. The actual text of the Convention would, therefore, warrant the conclusion that warships have the same rights in this respect as other ships, but the proceedings of the First UNCLOS leave no room for doubt that this was not the intention of the majority of delegations.50

Myres McDougal specifically qualified Sorensen's conclusion by stating that ‘the predominant expectation of States, at the 1958 Conference, therefore; appears to be that warships have a right of access to the territorial sea, subject to notification’.51

(p.75) The Indian delegation had gone to the First Law of the Sea Conference with a brief to support the requirement of prior notification and authorization for the passage of warships through the territorial sea of a coastal State. When these efforts did not succeed and the draft Article proposed by the International Law Commission on the subject was defeated and excluded altogether from the Convention, the Indian delegation, on returning from the Conference, advised the government that in the absence of a specific provision on the question of passage of warships, the matter would continue to be governed by the customary principles of international law under which warships do have a right of innocent passage.52 And it has always been open to the coastal State to make such passage subject to the condition of prior notification and/or authorization, as the coastal State thinks fit. The absence of a specific provision in the 1958 Geneva Convention led to a serious criticism of the Convention, so much so that India decided not to ratify the 1958 Convention.53

Third UN Conference

In 1974, this question was reviewed by Naval Headquarters and the Ministry of Defence and it was felt that

considering that India was aspiring to become a major naval power in the region, freedom of navigation for our warships would be conducive to the attainment of naval missions and consequently we should rescind the requirement of prior authorization for the passage of foreign warships through our territorial waters but impose only the requirement of prior notification. In taking this decision, note was taken of the fact that the regime of prior notification would stand better chance of acquiescence by the major maritime powers and that this requirement had enjoyed substantial support in the First Law of the Sea Conference held at Geneva.

The Ministry of External Affairs and the Cabinet Committee on the Law of the Sea and the Seabed accepted this recommendation.54 The Indian delegation for the second substantive session of the Third UNCLOS was thereafter advised to promote the requirement of prior notification only for the passage of warships through the territorial sea and to ensure that a suitable provision is incorporated in the Convention that may result from the deliberations of the Conference. In 1976, when the first maritime legislation, that is, The Territorial Waters, the Continental Shelf, the Exclusive Economic Zone, and other Maritime Zones Act, 1976 was enacted, a provision (p.76) was included requiring only prior notification for the passage of foreign warships through the Indian territorial waters.55

At the Conference, however, relatively little attention had been given to this subject as is evident from the fact that in the general statements made by delegations at the Caracas Session of the Conference, few delegations made specific reference to the passage of warships through the territorial sea and the requirement of prior notification and/or authorization.56 In the Main Trends Document of the Second Committee, on the question of passage of warships, a formulation was included which read as follows:

1. The coastal State may require prior notification to or authorization by its competent authorities for the passage of foreign warships through its territorial sea, in conformity with regulations in force in such State.57

After the Third Session held in Geneva in 1975, the ISNT58 was prepared after two readings of the Main Trends Document and the above formulation was deleted from it, signifying that it did not command the requisite consensus to merit inclusion in the text. At the Fourth Session of the Conference when the provisions of the ISNT were examined article by article, India had, inter alia, made a proposal suggesting the addition of paragraph 2 to Article 29 relating to the passage of warships through the territorial sea: ‘The coastal State may require prior notification to its designated Authority for the passage of foreign warships through its territorial sea.’

In the detailed statement made, the rationale for proposing the amendment was clarified.59 The proposal evinced substantial support in the Second Committee and there was a feeling that the Indian proposal was a balanced one and should be incorporated in the RSNT. This was, however, not done because of the behind-the-scenes diplomacy by the major maritime powers, which were determined not to allow any such imposition or requirement to be included in the revised text. This matter received little attention thereafter and no discussion was allowed on this question until the concluding session of the Conference held in New York when two formal amendments were moved, one by the delegation of Gabon,60 proposing inclusion in the Convention of the requirement of prior authorization and notification for the passage of foreign warships through the territorial sea of a coastal State. The second proposal was sponsored by thirty States and proposed the addition of the word ‘security’ after the word ‘immigration’ in sub-paragraph (h) of (p.77) paragraph 1 of Article 21.61 There was no doubt in the minds of delegations that if either of the two proposals were put to a formal vote, the requisite majority would accept it.62

The President of the Conference, Tommy B. Koh, made a fervent appeal to the delegations not to press their amendments to a vote, urging that if any controversial or divertive amendment was adopted, it could very well jeopardize the prospects of their being able to adopt a convention by consensus or without a vote.63 The representatives of the US64 and Australia65 also addressed formal letters opposing the amendments to the President of the Conference. Finally, in deference to the appeal by the president, the amendment proposed by the delegation of Gabon was withdrawn.66 A breakthrough was also achieved on the thirty-nation amendment in the afternoon of April 26, 1982, after intensive consultations held by the president with the sponsors of the amendment. The sponsors agreed not to seek a vote on the amendment on the condition of the president making the following statement as part of the records of the Conference:

Although the sponsors of the amendment (A/CONF.62/L-117) had proposed it with a view to clarifying the text of the Convention, in response to the President's appeal they had agreed not to press for a vote, without prejudice to the right of coastal States to safeguard their security interests in accordance with Articles 19 and 25 of the Convention.67

It is rather unfortunate that major maritime powers have been vehemently opposing any satisfactory solution of this problem. The Indian proposal seeking a regime of prior notification for the passage of foreign warships through the territorial waters was a modest one, trying to strike a balance between the requirements of passage and the security needs of the coastal State. Had this been accepted, it would have precluded the coastal States claiming enlarged competence implicit in the requirement of prior authorization for the passage of foreign warships. This is quite evident from the fact that a large number of coastal States have included the requirement of prior authorization and notification for the passage of foreign warships through the territorial sea in their national legislation. In particular, ail neighbouring States of India, that is, Pakistan, Sri Lanka, Bangladesh, and Myanmar, have imposed the requirement of prior authorization and notification in their national legislation as against the Indian legislation, which adumbrates a regime of prior notification only.68 Similarly, almost all the States which sponsored the thirty-nation (p.78) amendment on Article 21 of the Convention have made statements of understanding or interpretative declarations while signing and/or ratifying the Convention, arrogating to themselves the right to adopt measures to safeguard their security interests. They have claimed this right being fully in conformity with Articles 19 and 25 of the Convention, as it was clearly stated in the statement by the president in the plenary meeting of the Conference on April 26, 1982.69

Use of Force in the Territorial Sea

Apart from a situation of belligerence, circumstances when force may be used in the territorial sea against a foreign vessel or warship can arise in the following cases:

  1. 1. When coastal States react against what they perceive as a provocative or offensive act by foreign ships;

  2. 2. When a foreign State acts to assert navigational claims against the coastal State.

The Pueblo incident of 196870 exemplifies the first situation. In that case, North Korean naval units used armed force in order to capture the American intelligence ship Pueblo. As a result of the seizure, North Korea held the American crew for several months, until the parties signed an agreement that permitted the crew to be released upon US acknowledgment of espionage activities, a recognition that the US immediately disavowed.71 The Gulf of Sirte incident of August 1981 revealed a similar pattern of conflict during which Libya asserted the legality of the use of force to protect its coastal rights and the US defended the freedom of navigation of its fleet.72 These two disputes exemplify the circumstances in which conflicting claims are likely to arise between coastal States and foreign military vessels. These precedents illustrate the difficult question of whether force is admissible and if so, what degree of coercion may be used to enforce the coastal State's jurisdiction in its territorial waters.

Those who uphold the principle of ‘complete immunity’ of foreign warships hold that no force is permissible to enforce jurisdiction. This is evident from a combined interpretation of Article 30 of the United Nations Convention on the Law of the Sea, 1982, which provides that if a foreign warship does not comply with a coastal State's regulations in the territorial sea, the coastal State may ‘require the warship to leave the territorial sea’ immediately, and Article 95, which enjoins that warships on the high seas have complete immunity from the jurisdiction of (p.79) any State other than the flag State.73 Since these provisions guarantee complete immunity and fail to contemplate coercive measures against the illegal presence of warships in territorial waters, the obvious conclusion is that a fortiori no use of force is admissible against a foreign warship in the territorial sea except in self-defence.74 Proponents of the opposite view believe that it is necessary to determine the scope of the coastal State's lawful countermeasures by distinguishing between single violations of the coastal State's laws and regulations with respect to navigation in the territorial sea and violations of international norms governing innocent passage. Only in the latter case, according to this view, could the coastal State be entitled to adopt coercive measures including the use of force.75 Practically, however, we cannot separate the violation of a coastal State's regulations from the violation of ‘peace, good order, and security’ upon which innocent passage is contingent Finally, Article 25(1) of the Convention allows ample police powers: ‘the coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent’. The special character of this police power is emphasized by its absence from Part III of the Convention concerning passage through straits used for international navigation. In view of this clause, it seems that we must rely on the general rules of necessity and proportionality to decide when and to what extent the use of force is admissible to prevent or terminate a passage that the coastal State considers prejudicial.76

The second question about use of force in the territorial sea concerns the permissibility of force to assert navigational rights against a coastal State's claims. Despite the impressive number of conflicting claims with respect to national jurisdiction over adjacent waters, the use of force to assert navigational rights against coastal claims fortunately has not arisen very often in practice. Even in the sensitive area of transit rights through international straits and archipelagic waters, nations have generally claimed freedom of navigation and rights of unimpeded passage by diplomatic statements and other peaceful steps rather than by military action.77 The closing of the Gulf of Aqaba in 1967 gave rise only to diplomatic protests, and the assertion of an archipelagic claim by Indonesia and the Philippines in 1958 and 1968, respectively, witnessed a remarkable level of self-restraint on the part of the British and US navies. Rather than seeking confrontation, war fleets were diverted from the original route to more peripheral passages of the archipelago.78 A notable exception is the Corfu Channel case, which involved a demonstration of force by (p.80) the British navy to assert freedom of transit through the channel. In its judgment of 1949, the International Court of Justice held that the mere assertion of navigational rights, even with a show of force by a foreign fleet of war, does not itself constitute an illegal threat or use of force.79 The Corfu Channel precedent, therefore, does not warrant the conclusion that threat or use of force may be permissible to challenge coastal claims that infringe upon free navigation. Indeed, in both cases of innocent passage and conflicts like the Gulf of Sirte incident, the interested parties must respect the general obligation to seek a peaceful solution to their dispute in accordance with the UN Charter, to abstain from acts of force that endanger the peace, and to refrain from acts that aggravate a dispute.80

Delimitation of the Territorial Sea

In the case of delimitation of territorial waters between opposite countries, the normal practice has been to agree upon the median line, equidistant from the nearest points of the opposite State's shores, as the boundary. Practice in delimitation of the territorial sea of adjacent States has been less consistent and considerable use has been made of the equidistance principle, drawing a median line outwards from the boundary on the shore; the 1976 Colombia-Panama delimitation agreement81 is one of many examples. In the 1974 Agreement between India and Sri Lanka on the boundary in the historic waters of the Palk Straits between the two countries, for instance, a modified median line was used, to take account of historical factors.82 It is the common practice at present to set boundaries by reference to geographical co-ordinates for the sake of certainty and simplicity, and such determinations almost inevitably demand some departure from the exact median line or other criterion. The conventional rules concerning delimitation are consistent with the pattern of State practice described above.

On the basis of the recommendations of the International Law Commission, the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone adopted the following article on the delimitation of the territorial sea between adjacent and opposite countries:

Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The provisions (p.81) of this paragraph shall not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance with this provision.83

Third UNCLOS and Delimitation of the Territorial Sea

There was not much controversy about the delimitation criteria for the territorial sea boundary, and by and large the provisions of the 1958 Convention on the Territorial Sea and the Contiguous Zone were followed. Based on the statements made by delegates at the Caracas Session in 1974, four formulations or variants were included in the Main Trends Document on the delimitation of the territorial sea between adjacent and opposite States.84 The main feature of the provision on maritime boundary in the ISNT was a single set of provisions on the delimitation of the territorial sea virtually on the lines of the provision in the 1958 Convention. No change was made to the ISNT formulation relating to delimitation of the territorial sea between adjacent and opposite States thereafter, which had achieved general consensus and was eventually incorporated in the Draft Convention85 and finally adopted. Efforts were made by Venezuela and Turkey to amend Article 309 to permit reservations to Articles 15, 74, and 83. Venezuela later withdrew its amendment. The Turkish amendment was put to vote and defeated by 100 votes to 18 with 26 abstentions.86 The final provision on the delimitation of territorial sea (Article 15) is as follows:

Delimitation of the Territorial Sea between States with Opposite or Adjacent Coasts

Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic tide or other special circumstances to delimit the territorial seas of the two States in a way, which is at variance therewith.

Straits Used for International Navigation

The most important juridical question concerning ocean navigation discussed in the Third UNCLOS was the nature of the right of passage through international straits. The law governing straits had assumed importance in view of the general acceptance of the (p.82) twelve-mile territorial sea, which would result in a large number of straits, normally used for international navigation, being enclosed within the territorial sea of one or more coastal States bordering the strait, Erik Bruel, in his treatise, ‘International Straits’ (1947), states:

in the geographic sense of the word, it seems that a strait may be defined as a contraction of the sea between two territories, being of a certain limited width and connecting two seas otherwise separated at least in that particular place by territories in question.87

Since many of the straits are of critical importance for international communications, and some of them are virtually indispensable for ocean transport in the sense that no other route is physically or economically possible, it is generally accepted that the straits be free for navigation and access to them should not be prohibited without justifiable cause.88

Hague Codification Conference, 1930

The question of evolving a special regime for navigation through straits was first mooted before The Hague Codification Conference of 1930. Although no agreement could be reached, the Second Committee of the Conference did affirm that in those waters of a strait which constituted territorial sea,

it is essential to ensure, in time of peace in all circumstances, the passage of merchant ships and warships through straits between two parts of the high seas forming ordinary routes of international navigation.89

The Corfu Channel Case

A significant development on this subject was the judgment of the International Court of Justice in the Corfu Channel case, which offered an occasion for the establishment on a firm basis of the principle, hitherto not altogether undisputed, that warships, like merchant vessels, were entided to free transit through an international strait. The Court held:

It is generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal State provided that the passage is innocent Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such a passage through straits in time of peace.90

(p.83) As to the international character of a strait, the court held that ‘the decisive criterion is its geographic situation as connecting two parts of the high seas and the fact of its being used for international navigation’.91

Geneva Conference, 1958

The Corfu Channel decision had considerable influence upon deliberations of the International Law Commission and a general consensus in favour of preserving a right of access to straits free from the arbitrary competence of the coastal States emerged. This found confirmation in the 1958 Conference on the Law of the Sea and Article 16(4) of the Convention on Territorial Sea and the Contiguous Zone provides that:

There shall be no suspension of the innocent passage of foreign ships through straits, which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State

It was evident that there had been a fairly strong tendency to restrict the competence of coastal States over straits. The Corfu Channel decision, however, produced the first explicit declaration of the right of warships for access to straits that could not be denied arbitrarily by the coastal States. If the breadth of the territorial sea was fixed at twelve-nautical miles, 116 straits would, all or in part, come under the jurisdiction of the coastal States. This would include straits of great importance for navigation such as the straits of Dover, Malacca, Babel-Mandeb, Gibraltar, Sunda, Lambok, etc. It was thus understandable that the leader of the US delegation went to the extent of declaring that ‘it would be unable to conceive of a successful Law of the Sea Conference, which did not accommodate the objectives of free transit through straits’.92 A list of 116 commercially and strategically important straits used for international navigation, which would be placed under national sovereignty by a twelve-mile territorial sea, is given in Annexure V.

Third UNCLOS

Several countries had submitted draft proposals that addressed the straits' problem before the UN Seabed Committee. These proposals fell into two general categories: (p.84)

  1. 1. Those advocating free transit; and

  2. 2. Those supporting the existing regime of non-suspendable innocent passage.

The US and the USSR were the chief exponents of the right of free or unimpeded transit through straits used for international navigation. Sharing the concern of the international community in preserving the freedom of commerce, they referred to mobility on the sea and in the air as their ‘fundamental security interests.’93 The countries bordering straits had, on the other hand, taken the position that uncontrolled transit was not acceptable, arguing that the concept of innocent passage was sufficient to protect both the interests of the international community and the coastal States. The superpowers considered that the regime of innocent passage as adumbrated in the Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958 had certain inherent disadvantages and could be abused if the coastal State interpreted it subjectively. The rules relating to innocent passage of warships are not beyond dispute, and under Article 14(6) of the Convention, submarines must navigate on the surface and show their flags. Besides, there is no right of innocent passage for aircraft through the airspace above the territorial sea.

Proposals before the Seabed Committee at the Third UNCLOS

The first proposal relating to the breadth of territorial sea combined with specific provisions governing passage through international straits was submitted by the US on August 03, 1971 to the Seabed Committee.94 Article 1(1) of this proposal recognized a maximum breadth of the territorial sea of twelve-miles but this was conditional upon the adoption of Article 2 concerning straits in which all ships and aircraft in transit shall enjoy the same freedom of navigation and over flight, for the purpose of transit through and over such straits, as they have on the high seas. The US proposal had some new elements that deserve to be noted. First, it retained the high seas freedoms of unrestricted transit through international straits. Second, it allowed over flight as a right even over the territorial waters of the coastal State and limited its authority to designating air-traffic corridors. Third, it avoided the requirement of the Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958 that when passing through the territorial sea of a State, a foreign (p.85) submarine must navigate on the surface and show its Rag, The US proposal was supported by the Soviet Union, which submitted its draft Article on straits used for international navigation-bearing a striking resemblance to its US counterpart-on July 25, 1972.95 Another proposal was submitted by Italy.96

Proposal by the Strait States

On behalf of the strait States, a set of draft Articles on the Territorial Sea and Straits used for International Navigation were presented in 1973 by Greece, Cyprus, Indonesia, Malaysia, Morocco, Philippines, Spain, and Yemen.97 These Articles were interesting because they projected the views of a group of countries that actually border on some of the most important international straits, including Gibraltar and Malacca. These Articles rested on what was termed as five basic considerations:

  1. 1. Navigation through the territorial sea and international straits should be dealt with as a single regime since the straits form part of the territorial sea;

  2. 2. Regulation of navigation should establish a satisfactory balance between the particular interests of the strait States and the general interests of the international community;

  3. 3. Any regulation of navigation should promote both the safety of maritime commerce and the security of the strait State;

  4. 4. The regulations should take due account of the economic realities and scientific and technological developments occurring in recent years;

  5. 5. The regulations should finally make up for the deficiencies of the 1958 Convention, especially those with respect to passage of warships through the territorial sea including straits.

The strait States Articles advocated a broad coastal State competence to prescribe and enforce regulations governing virtually all facets of navigation in straits, including designation of sea lanes, establishment of anti-pollution controls, safety requirements, and regulation of maritime traffic in general passage of ships with ‘special cargoes or characteristics’. In doing so, the coastal State was required to take into account the recommendations of a competent international organization, channels customarily used for international navigation, and the special characteristics of particular channels and ships. Fiji introduced draft Articles before the Second Committee on July 19, (p.86) 1973 which sought to retain the traditional concept of ‘innocent passage’ but attempted to improve upon the existing definition of ‘passage’.98 The innocence of passage was still to be determined in relation to the peace, good order, and security of the coastal State, but an objective test was sought to be applied in determining what acts can, in fact, be considered to be prejudicial to the peace, good order, and security of the coastal State.

Greater flexibility was sought in relation to passage by submarines that were to be permitted to pass submerged, provided, however, that they give prior notification of their passage and confine their passage to sea lanes designated by the coastal State. The Fijian Articles received the full support of China.99 Poland also submitted a proposal concerning aspects of navigation through straits. It enjoined that the coastal State should not place in the straits used for international navigation structures of any kind that could hamper or obstruct the passage of ships through such straits.100 From the above proposals, it was amply clear that the straits problem was essentially one of reconciling duties and rights of States inter se.

Innocent Passage and Unimpeded Transit Passage

For a proper understanding of the stands taken by both the sides, it would be desirable to spell out the main differences between innocent passage as adumbrated in Part I and transit passage as contemplated in Part III Part of the Convention. These are:

  1. 1. Whilst in the case of innocent passage through the territorial sea, the Convention contemplates temporary suspension in specified areas for protection of the security of the coastal State,101 in the case of transit passage through straits used for international navigation, there shall be no suspension;

  2. 2. In the case of innocent passage through the territorial sea, the sea lanes are to be designated by the coastal State after taking into consideration the recommendations of the appropriate international organization, whilst in the case of transit passage, the sea lanes are to be designated after submission of proposals to the competent international organization and adoption of the same by the organization in agreement with the strait State;102

  3. 3. In regard to innocent passage, the Convention provides that (a) Tankers and ships carrying nuclear and other inherently dangerous or noxious substances or materials may be (p.87) required to confine their passage through designated sea lanes, (b) foreign nuclear-powered ships and ships transporting nuclear substances may be required to carry documents and observe special precautionary measures, and (c) submarines and other underwater vehicles are to navigate on the surface and show their flag. No such restrictions are envisaged in the case of transit passage;103

  4. 4. The competence of the coastal State in the matter of promulgation of laws and regulations with regard to innocent passage is much wider than that of the strait State with regard to transit passage;104

  5. 5. In the case of innocent passage, a provision has been made authorizing the coastal State to take necessary steps to prevent passage which is not innocent and for liability of a ship for damage caused. There is no similar provision which would authorize a strait State for taking similar steps when a ship does not comply with the conditions of transit passage, nor is there any provision for liability of the ship for damage caused to the strait State except in the case of a ship entitled to sovereign immunity;105

  6. 6. There is no provision for levy of charges for services rendered in the case of transit passage unlike innocent passage.106 Similarly, there is no provision for exercise of criminal or civil jurisdiction in relation to transit passage unlike the case of innocent passage;107

  7. 7. The innocent passage of warships through the territorial waters of a State may be subject to the requirement of prior authorization and/or notification by the coastal State.108 No such requirement of prior authorization or notification can be imposed on a foreign warship transiting through a strait used for international navigation.

In view of the above, the major maritime powers argued that; the strategic balance of power required the maintenance of their presence in different parts of the world and any reduction of the mobility of their naval forces which might be caused by the enlarged rights of the coastal States in straits would inevitably change their defence posture, and such a change is not negotiable at a Law of the Sea Conference. The strait States argued that the major powers should admit that the days when they used to act as owners and masters of the sea are gone and some of the statements made by them advocating their own strategic and security interests appear to completely ignore the changes that had taken place in navigation. (p.88) The coastal States are now not concerned about the ‘sailing ship’, but about the nuclear-powered vessels, submarines equipped with nuclear warheads, and big oil tankers which pose a real threat to a large part of the coastal States bordering international straits. Their interests must be adequately protected by international regulations having a bearing on the respect for the territorial integrity and political independence of the coastal States in accordance with the UN Charter.

Indian Stand

India supported the regime of transit passage through straits used for international navigation. India has vital interest in the straits situated in the immediate vicinity of our waters, such as the Straits of Malacca and Singapore, the Strait of Hormuz at the entrance to the Persian Gulf; and the Strait of Bab-el-Mandeb at the entrance to the Red Sea. India, however, has very high stakes in so far as merchant shipping is concerned. Its merchant fleet is a global carrier, and besides Indian trade, its vessels are also chartered for carrying international cargoes. Accordingly, India's shipping and trade interests would require assurances about freedom of navigation. The present international status of most of the important straits serves Indian shipping extremely well and any change in their international character may adversely affect our maritime interests. India, therefore, advocated that there should be no hindrance to the free transit of her ships through straits.109 The Cabinet Committee, however, directed the Indian delegation to maintain a low profile on this issue lest an erroneous impression of towing the line of the major maritime powers was given.

‘Unimpeded Transit Passage’ Finally Gets Accepted

In the light of the various proposals elaborated above, considering the stakes involved, and the importance of unimpeded transit passage through an international strait vis-à-vis the regime of innocent passage through the territorial sea, the insistence of major maritime powers on the transit passage regime could well be appreciated. The introduction of the articles by the UK110 was the major event of the Caracas Session on the straits issue. The importance of the straits issue to the overall negotiations came into sharper focus at the Third Session of the Conference held at Geneva. The proposals made at Caracas were considered in both the Second Committee as (p.89) well as an informal group composed of interested States. The Single Negotiating Text of the Second Committee on international straits generally followed the pattern of the UK draft articles, although they also took into account the provisions of certain other proposals. In the Fourth Session in New York, the Malaysian delegate made a bold bid to get the Second Committee to agree to the deletion of these provisions from the text on the ground that the regime of innocent passage through the territorial sea should equally apply to the straits used for international navigation, which would become territorial by the extension of the territorial sea to twelve-miles.111 The strait States, notably Oman, Tanzania, Spain, Iran, the Philippines, Greece, Yemen, Indonesia, and Morocco supported the Malaysian proposal. The conclusion of the Fourth Session was marked by the preparation of the RSNT,112 reflecting the outcome of the deliberations. In the Fifth Session, there were hopeful signs of a breakthrough as regards the general acceptance of the concept of transit passage through straits used for international navigation. Opposition of strait States had dwindled to suggestions by very few countries, all now in the form of amendments to the transit passage regime. This was evident from the amendments proposed by the Malaysian delegate, affirming his preparedness to recognize the regime of transit passage, provided rights and duties of user and coastal States were balanced equitably.113 Iran, Spain, Indonesia, Oman, and the Philippines supported the Malaysian amendments.114 These were duly discussed in both the Second Committee as also in the Negotiating Group 4 under the Chairmanship of Satya Nandan, recognizing the resolution of the straits issue as a priority item. Finally, the Chairman, Andres Aigular, summed up the discussions by saying:

Chapter II of the RSNT appears to provide an acceptable negotiating basis for the great majority of delegations, although some States bordering straits made their acceptance of the text conditional upon incorporation of certain changes aimed at achieving a better balance between their interests and those of users of straits.115

As straits are essential corridors to or between the high seas for all maritime nations, the question of how their use shall be regulated is a strategically vital one. In the long-term perspective, the existing historically recognized rights of passage must not be made subject entirely to international political conditions, or the goodwill and the vicissitudes of the foreign policy and relations of coastal States.116 It seemed that the international community had ultimately agreed to (p.90) the regime of transit passage. There was no further discussion on this subject in the Conference and the matter stood resolved.

Passage of Warships through International Straits

Although there was, for a log time a considerable difference of opinion concerning the right of warships to pass through straits, in practice, however, States did not put obstacles in the way of access and permitted the passage of warships in time of peace. The Corfu Channel case, involving the UK and Albania and decided by the International Court of Justice in 1949, offered the opportunity, for the establishment on a firm basis, of the principle hitherto fore not altogether undisputed, that vessels of war, like merchant vessels, were entitled to free transit through an international strait. The facts briefly were that two British warships were fired upon by Albanian coast batteries while the ships were within the Albanian part of the strait of Corfu, which lies between the island of Corfu, a part of Greece, and the coasts of Albania and Greece, part of the strait being within the territorial waters of Albania and part within that of Greece, The incident sparked off a controversy between the UK and Albania about the claim of a right of innocent passage by the former and the claim to require notification and authorization for passage of foreign warships and merchant vessels. Since the dispute could not be resolved, the UK decided to send warships through the strait, in display of their claimed right under international law. During the attempted passage, on October 22, 1946, through the Albanian part of the strait, the two British warships struck mines, which caused considerable damage and loss of life. In November 1946, the UK announced its intention to mine sweep the Albanian part of the strait and proceeded to do so without the consent of Albania. On the recommendations of the UN Security Council, the dispute was submitted to the International Court of Justice.117

Albania contended that the passage of British warships on October 22, 1946 was a violation of the sovereignty of Albania, for which the UK was responsible. Rejecting this contention, the Court upheld the right of coastal States, in times of peace, to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal State, provided the passage is innocent.118 The Court observed that the two riparian countries, Greece and Albania, did not maintain normal relations; that Greece considered itself (p.91) technically at war with Albania, and that Albania considered it necessary to take certain measures of vigilance in the region. Even in such an exceptional situation the Court ruled that Albania, in view of these exceptional circumstances, would have been justified in issuing regulations in respect of the passage of warships through the strait but not in prohibiting such passage or in subjecting it to the requirement of special authorization. The court rejected the Albanian arguments that the Corfu Channel was the type of strait that would call for the application of such a right, that it was not an important strait, or that it was not a necessary route between open sea areas, and that it was used mainly for local traffic between Corfu and Saranda. The Court declared ‘the decisive criterion is rather its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation’.119 The court also rejected the frequency of use as a criterion for the applicability of the right of innocent passage. The determining criteria in classifying the international character of a strait lay in its geographical situation and the use of the sea area concerned. The strait need not constitute an essential and indispensable route; it is sufficient if it is a useful route.120

The International Law Commission apparently sought to provide even more limited coastal authority over straits by providing that ‘There must be no suspension of the innocent passage of foreign ships through straits normally used for international navigation between two parts of the high seas’.121 The reference to ships was intended to include both warships and merchant vessels; hence the Commission's recommendation explicitly prohibited arbitrary suspension of access for both types of vessels.122 This found confirmation in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone:

There shall be no suspension of innocent passage through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial waters of a foreign State.123

The final version deleted the word ‘normally’ from the Commission's draft on an amendment proposed by the US on the ground that the Corfu Channel decision had not so qualified the ‘used’.124 The Corfu Channel case thus produced the first explicit declaration of the right of warships to access to straits, which could not be denied arbitrarily by the coastal State.

(p.92) Archipelagic Waters

The legal status of archipelagic waters had become a topical issue in the mid-twentieth century in connection with the fact that some archipelagic States tended to impose unilateral control over these waters to the detriment of the traditional practice of using these waters for international navigation, over flight, fishing, laying of submarine cables, and the like. Historically, such waters had the status of high seas, and these moves were an attempt to undermine the generally accepted freedoms of the high seas. This was what prompted the Philippines and Indonesia to make such moves in the 1950s. In 1955, the Philippine government declared that it regarded all waters between the islands of the Philippine archipelago, irrespective of their width or length, as national or international waters under the exclusive jurisdiction of the Philippines.125 Indonesia had proclaimed itself an archipelagic State on December 14, 1957 and announced the extension of exclusive national sovereignty to all waters between the islands comprising the Republic of Indonesia. In the latter case, the sovereignty of the coastal State was extended to vast sea areas traditionally used for international navigation. International straits such as those of Lombok, Sunda, and Makassar were incorporated into Indonesia's internal waters and the regime of the passage of foreign ships through these straits came under national legislation. It was an astute move, because the maritime powers would not agree to the archipelago concept until they were assured of navigational rights through straits used for international navigation.126 And it was not until Fiji and Britain (which acted for the maritime powers) produced a compromise solution on straits in 1975 that the discussion on archipelagos made real progress.

The issue of archipelagic waters was examined in detail by the Norwegian jurist Jens Evensen in a study he prepared for the 1958 Geneva Conference on the Law of the Sea. Evensen held that countries could apply the concept of the archipelago to groups of islands in the ocean and delimit their territorial waters by drawing straight baselines. In his view, the geographical characteristics of the archipelago, and the interdependence of land and the adjacent territorial waters were the decisive factors in the drawing of these Lines. The question of archipelagos was considered at the Geneva Conference on the Law of the Sea, 1958. However, as in the case of the Hague Conference, differences among the participating countries made it impossible to reach an agreement either on a definition of (p.93) the legal concept of the archipelagos or on the regime of the waters lying between the archipelago's islands.127

Deliberations at the Third UNCLOS

The Third UNCLOS offered a new and perhaps unique opportunity to resolve the issue. Following up on the proposals they had submitted to the UN Seabed Committee in 1973, four archipelagic States-Indonesia, Mauritius, Fiji, and the Philippines-addressed the Caracas Session of the UNCLOS with detailed draft articles containing proposals on the definition of archipelagic States, on the principles to be used in the delimitation of adjacent waters, on the regime of such waters, and on the passage of foreign ships through them. The draft suggested that the category of archipelagos comprise groups of islands, including parts of islands, and the waters connecting them, that historically constituted a single geographic, economic, and political whole.128 The sponsors of the draft introduced the concept of archipelagic waters, which they wanted to apply to waters within the straight baselines that would connect the outermost points of the outermost islands and uncovered reefs. However, no limit was proposed for the length of such lines, and there was no mention of the proportion between land and sea that could be incorporated into the concept of the archipelago. The draft proclaimed the right of innocent passage through archipelagic waters, the exercise of which was essentially left to the discretion of the archipelagic State. According to the four nations' draft, the regime of archipelagic waters could be extended to international straits in which, under international law, warships enjoy freedom of navigation and all types of aircraft are granted over flight rights.129 All this allowed archipelagic States to arbitrarily extend their sovereignty many times greater than these nations' land areas. It was evident that the sponsors had put the interests of archipelagic States above those of international navigation.

Indian Position

The Indian delegation had gone to the conference determined to get the archipelagic status for its groups of off-lying islands of Andaman and Nicobar and Lakshadweep. The Indian position had been clarified by the Leader of the Indian Delegation, at the Caracas Session on July 03, 1974, as follows:

(p.94) The concept of archipelagos was being promoted by several developing countries, and a proposal on that subject had been made by several States with which India had friendly relations. His delegation would give sympathetic consideration to the implication of the concept of an archipelago or archipelagic State if the following provisions were given consideration: firstly, the body of water enclosed by drawing straight baselines joining the outermost points on the outermost islands constituting an archipelago should be reasonable; secondly, the channels of navigation traditionally used by international shipping should be respected; and thirdly, the principle should apply to the Andaman & Nicobar Islands and also to the Lakshdweep Islands. No distinction should be made between an archipelago that constituted a single State and an archipelago that formed an integral part of a coastal State.130

India was closely monitoring the extent of support to the concept of archipelagos in the Conference, especially from the developing countries. At least twenty-nine countries had spoken in favour of the concept being limited to archipelagic States in the plenary of the Conference. Furthermore, no less than eleven countries had supported the idea that off-lying archipelagos constituted an integral part of the territory of the coastal State. At Caracas, the Indonesian delegation approached the Indian delegation to consider the possibility of sponsoring a joint proposal, which the latter readily agreed to. India and Indonesia teamed up with seven other coastal states (Canada, Chile, Iceland, Mexico, Mauritius, New Zealand, and Norway) and produced a working paper referred to as the nine-nation proposal.131 The section on archipelagic States in this draft formed the basis of the eventual Part IV of the Convention. What disappeared because of the disapproval of US was the next section on ‘archipelagos forming; part of a coastal State’. The objection to it was that it opened the way broadly to the enclosure of considerable areas, depending upon the length of the allowable baselines. Its disappearance meant that countries such as Malaysia and Greece could not claim ‘off-lying archipelagos’; nor among the original drafters could Canada with its Arctic, or India with its territory of Andaman and Nicobar Islands in the Bay of Bengal. Besides, there was a feeling circulating in the Conference that major maritime powers may accept the concept in respect of the archipelagic States but not in respect of the off-lying archipelagos of a continental State.

India was not able to persuade the Conference to accord the status of an archipelago to a group of islands of a continental coastal State (p.95) such as the Andaman and Nicobar Islands or the Lakshdweep group of islands. The Convention grants the status of an archipelago only to those groups of islands that are political entities by themselves. Thus, fifteen countries have claimed archipelagic status with or without specifying their archipelagic baselines: Antigua and Barbuda, Cape Verde, the Comoros, Fiji, Indonesia, Kiribati, the Marshall Islands, Papua New Guinea, the Philippines, Saint Vincent and the Grenadines, Sao Tome and Principe, Solomon Islands, Trinidad and Tobago, Tuvalu, and Vanuatu.132 The legal significance of the non-grant of an archipelago status to Andaman and Nicobar Islands is that:

  1. 1. India would not be able to draw straight baselines joining the outermost points of the islands and then claim various maritime zones measured outward from them. India has thus lost regulatory control over an area of roughly 23,000-square miles, which would have been part of the maritime zones of India had the baselines been drawn on the archipelagic principle.133

  2. 2. The distance between the Andaman group and the Nicobar group of islands is roughly seventy-six-miles. If an archipelagic status had been granted to these groups of islands, India would have full regulatory control over the navigation of ships or vessels passing through the Ten Degree Channel, which would have then been part of India's archipelagic waters subject to the restrictive regime of innocent passage or archipelagic sea lanes passage.134

Final Acceptance of the Archipelago Concept

The subject of archipelagos was discussed and concluded in the thirty-six and thirty-seven meetings of the Second Committee on August 12, 1974. The two main proposals were the draft articles submitted by Fiji, Indonesia, Mauritius, and the Philippines, based on the proposal submitted previously to the Seabed Committee.135 The second proposal was a working paper sponsored by the UK and eight other countries including India. In the general debate, thirty-two delegations participated for and against the concept.136 Satya Nandan, the Fijian representative, eloquently highlighted that:

The status of archipelago States had been seriously considered at the two earlier conferences on the law of the sea, but the problem had not been resolved. It had been raised anew before the Seabed Committee, which had agreed that the special status of archipelago States should be recognized in (p.96) the projected conference on the law of the sea. The 4-nation proposal had stimulated debate, provided deeper insight into the problem and provoked some criticism. As a result, the sponsors had revised the articles so as to reconcile the views of other States with the sponsors' basic objectives.137

Satya Nandan further assured that the sponsors aim was to impose minimum limitations on the innocent passage of foreign ships consistent with the need to confine particular classes or types of ships to special sea lanes in the interests of the archipelagic State's security. A delicate balance had been struck to ensure minimum interference with the interests of maritime States and necessary safeguards for the legitimate interests of transit States.

An extensive debate and consideration of this topic at the Third UNCLOS led to the UN Convention on the Law of the Sea formally sanctifying the concept of the archipelagic State and incorporating in the Convention a special section (Part IV) entitled ‘Archipelagic States’. Under the Convention,

an archipelago is a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.138

The method of straight baselines applied in measuring the width of territorial waters is used for the precise delimitation of an archipelagic State's borders. The two conditions mandatory for the drawing of straight archipelagic baselines and incorporated in the Convention are also of great importance:

  1. 1. Firstly, the area Within the baselines is to include the main islands of the archipelago, while the ratio of the area of the sea to the area of land territory, including atolls, is not to exceed nine to one;

  2. 2. Secondly, the baselines must not be longer than 100-nautical miles, although up to 3 per cent of the total number of these lines delineating the archipelago may extend for a maximum of 125-nautical miles.139

The evolution and formal acceptance of the concept of archipelagic States for the first time is a distinct achievement of the Third UNCLOS.

Notes:

(1.) Speech delivered on January 01, 2001.

(2.) See Percy T. Jr Fenn, 1926, ‘Origins of the Theory of Territorial Waters,’ AJIL Vol. 20, p. 465; H.S.K. Kent, 1954, ‘The Historical Origins of the Three-Mile Limit’, AJIL, Vol. 48, p. 537; Edwin Dickenson, 1926, ‘Jurisdiction at the Maritime Frontier’, Harvard Law Review, Vol. 40, PP. 1–2.

(3.) C. John Colombos, 1967, The International Law of the Sea, 6th rev. edn, London: Longmans Green and Co. Ltd, p. 87.

(4.) RR Churchill and A.W. Lowe, 1988, The Law of the Sea, Manchester: Manchester University Press, p. 60.

(5.) R v. Keyn (1876), 2 Exch. D.63.

(6.) Convention on the Territorial Sea and the Contiguous Zone, 1958, Article 1.

(7.) UN Convention on the Law of the Sea, 1982, Article 2.

(8.) S. Rosenne, 1930, League of Nations Conference for the Codification of International Law, Dobbs Ferry, New York: Oceana Publications, p. 1415.

(9.) G. Marston, 1976–7, ‘The Evolution of the Concept of Sovereignty over the Bed and Sub-soil of the Territorial Sea, BYIL, Vol. 48, No. 321, p. 332.

(10.) See generally Oppenheim, 1955, International Law: A Treatise.

(11.) Wyndham L. Walker, 1945, ‘Territorial Waters: The Gun Shot Rule’, BYIL, Vol. 22, pp. 210–11.

(12.) Phillips C. Jessup, 1927, The Law of Territorial Waters and Maritime Jurisdiction, New York: GA Jennings Co. Ltd, p. 66.

(13.) Jesse S. Reeves, 1930, ‘The Codification of the Law of Territorial Waters’, AJIL, Vol. 24, No. 486.

(14.) Report of the international Law Commission, GA Official Records (Eleventh Session), Supplement No. 9(A/3159).

(15.) Ibid., p. 4 (commentary on Article 3).

(16.) Ibid., pp. 12–13.

(17.) Convention on the Territorial Sea and the Contiguous Zone, 1958, Article 6.

(18.) Arthur H. Dean, 1958, ‘Geneva Conference on the Law of the Sea: What was Accomplished’, AJIL, Vol. 52, p. 609.

(19.) It received 45 votes to 33 in the plenary Session but required 52 (two-thirds of those present and voting). See also Arthur H. Dean, ‘Geneva Conference on the Law of the Sea’.

(20.) Resolution VIII, adopted on April 27, 1958, Doc. A/CONF.13/L-56 in UN Conference on the Law of the Sea, Official Records, Vol. 2, p. 145.

(p.98) (21.) The proposal, although accepted and recommended by the Committee, received in the Plenary Session 54 votes in favour, and 28 against, with 5 abstentions. Marjorie M. Whiteman, 1956, ‘Conference on the Law of the Sea’, Official Records, Vol. 6, p. 134.

(22.) Carl M. Franklin, 1961, The Law of the Sea: Some Recent Developments, Washington, DC: US Government Printing Office, p. 42.

(23.) Arthur H. Dean, 1960, ‘Second UN Conference on the Law of the Sea: The Fight for Freedom of the Seas’, AJIL, Vol. 54, p. 752.

(24.) Gregory Tunkin, 1958, ‘The Geneva Conference on the Law of the Sea’, International Affairs (Moscow), July, p. 47.

(25.) Arthur H. Dean, ‘Second UN Conference on the Law of the Sea’, p. 753.

(26.) R.B. Pal, International Law Commission Year Book I, p. 169.

(27.) Arthur H. Dean, ‘Second UN Conference on the Law of the Sea’, pp. 783–4.

(28.) UNCLOS, 1982, Article 18; see also Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958, Article 14(2).

(29.) Ibid Article 18(2)

(30.) Kate A. Hoff v. United Mexican States, AJIL (October 1929), p. 860.

(31.) UNCLOS, 1982, Article 20; see also Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958, Article 14(6).

(32.) Ibid., Article 25(2); see also Geneva Convention, ibid., Article 16(2).

(33.) Ibid., Article 18(l); (and Geneva Convention, ibid., Article 14(2).

(34.) Nicaragua case (1986), ICJ Reports, p. 111.

(35.) Churchill and Lowe, 1988, Law of the Sea, p. 70.

(36.) Corfu Channel case (1949) ICJ Reports, p. 70.

(37.) Year Book of International Law Commission (1956), Vol. 2, p. 272.

(38.) UN conference on the Law of the Sea, 1958, UNDoc.A/CONF.13/39, Vol. 3, p. 85.

(39.) Convention on the Territorial Sea and the Contiguous Zone, 1958, Article 14(5).

(40.) UNCLOS, 1982, Article 19(1).

(41.) A Permanent Notice to Mariners was published by the Chief Hydrographer to the Government of India in January 1980, which was withdrawn in January 1985 on receipt of the British Aide Memoir.

(42.) Article 12 of the Legal Status of the Territorial Sea, Report of the Second Committee, Publications of the League of Nations (1930), Vol. 9.

(43.) Corfu Channel case (1949), ICJ Rep.28.

(44.) Report of the International Law Commission, Year Book of the International Law Commission, 1954, Vol. 2, p. 161.

(45.) Report of the International Law Commission covering the work of its Eighth Session, General Assembly, Official Records, Supplement No. 9(A/3159), pp. 22–3.

(46.) Ibid., see paragraph 2 of the commentary to Article 24.

(p.99) (47.) See UN Doc. A/CONF.13/C.1/L-37/Corr.2, p. 213.

(48.) First UNCLOS Official Records, Plenary meetings, 1958, p. 67, paragraph 28.

(49.) Ibid., p. 68. It failed to obtain the requite two-thirds majority by a vote of 43 to 24 with 12 abstentions.

(50.) Max Sorensen, 1958, ‘Law of the Sea’, International Conciliation, No. 520, November, p. 235.

(51.) Myres S. McDougal and William T. Burke, 1962, The Public Order of the Oceans, New Haven, Connecticut and London: Yale University Press, p. 220.

(52.) Report of E.E. Jhirad, then Judge Advocate General of the Navy and a Member of the Indian Delegation to the First UN Conference on the Law of the Sea (May 27, 1958) quoted in O.P. Sharma, 1995, ‘India and the United Nations Convention on the Law of the Sea’, Ocean Development and International Law, Vol. 26, p. 399.

(53.) See the Report, dated May 27, 1958 submitted to A.K. Sen, then Law Minister, Government of India, who was the leader of the Indian delegation to the First UN Conference on the Law of the Sea (Unpublished). This is on record in the office of JAG (Navy), Naval Headquarters, New Delhi. A circular was sent by the Joint Secretary, Ministry of External Affairs, Government of India, to all Embassies/ High Commissions in New Delhi.

(54.) The author carried out this appraisal in his capacity as the Judge Advocate General of the Navy, Naval Headquarters, New Delhi. The Cabinet Committee accepted this recommendation.

(55.) The Territorial Waters, Continental Shelf, the Exclusive Economic Zone and other Maritime Zones Act, 1976 (No. 80 of 1976), sub-section 4(2).

(56.) See the statement of Roe, a representative of the Republic of Korea; Third UNCLOS, Official Records, Vol. 2 (1974), p. 110 while discussing Agenda Item No. 2, Territorial Sea.

(57.) Ibid., Formula C, Provision 44, p. 114.

(58.) UN Doc A/CONF.62/W.P 8 (Part II), dated May 7, 1975.

(59.) The author made these statements as a member of the Indian delegation.

(60.) UN Doc. A/CONF.62/L-97, dated April 13, 1982.

(61.) UN Doc A/CONF.62/L-U7, dated April 13, 1982. The co-sponsors of this proposal were Algeria, Bahrain, Benin, Cape Verde, China, Congo, Democratic Republic of Korea, Democratic Yemen, Djibouti, Egypt, Guinea Bissau, Iran, Libya, Malta, Morocco, Oman, Pakistan, Panama, Papua New Guinea, Philippines, Romania, Sao Tome and Principe, Sierra Leone, Somalia, Sudan, Surinam, Syria, Tunisia, Uruguay, and Yemen.

(62.) United Nations Press Release No. SEA/485, dated April 26, 1982.

(p.100) (63.) Delegations speaking against the two amendments in the informal meetings of the Second Committee were the UK, the Netherlands, the German Democratic Republic, Thailand, Soviet Union, Italy, Czechoslovakia, Denmark, Bulgaria, Portugal, Madagascar, New Zealand, Hungary, Mongolia, and the Federal Republic of Germany. Third UNCLOS, Official Records, Vol. 16, p. 237.

(64.) UN Doc. A/CONF. 62/L-130 reproducing letter dated April 19, 1982 from the leader of the US delegation to the Third UNCLOS.

(65.) UN Doc. A/CONF. 62/L-135 reproducing letter dated April 22, 1982 from the leader of the Australian delegation to the Third UNCLOS.

(66.) United Nations Press Release No. SEA/485, dated April 26, 1982, p. 19.

(67.) United Nations Press Release No. SEA/486, dated April 26, 1982, p.2.

(68.) For reference to legislation of these countries, see United Nations Legislative Series: ST/LEG/SER B/19 ‘National Legislation and Treaties Relating to the Law of the Sea’.

(69.) See interpretative declarations made by Cape Verde, Islamic Republic of Iran, Oman, Romania, Sao Tome and Principe, Sudan, and Yemen, UN Law of the Sea Bulletin No. 5 (July 1985) and others.

(70.) The Pueblo Incident, 72 Revue generale de droit international public (1968), p. 291.

(71.) Department of State telegram sent to various diplomatic missions after the incident, 62 AJIL,754, 756 (1968); See also G.H. Aldrich, 1969, ‘Questions of International Law Raised by the Seizure of the USS Pueblo’, American Society of International Law Proceedings, p. 2 where the State Department's view is supported.

(72.) Francesco Francioni, 1984, ‘The Status of Gulf of Sirte in International Law’, Syracuse Journal of International Law and Commerce, Vol. 11, p.311.

(73.) Please also see Article 8 of the Geneva Convention on the High Seas, 1958 and Article 23 of the Convention on the Territorial Sea and the Contiguous Zone. 1958.

(74.) See Aldrich, ‘Questions of International Law’, p. 3.

(75.) Gerald Fitzmaurice, 1959, ‘Some Results of the Geneva Conference on the Law of the Sea’ International and Comparative Law Quarterly, No. 8, pp. 73–93; see also Francesco Francioni, 1985, ‘Peacetime Use of Military Activities and the New Law of the Sea’, Cornell International Law Journal, Vol. 18, No. 2, p. 209.

(76.) These principles have been developed in the law of State responsibility on the basis of the well-known precedent of the Nautilaa incident (Portugal-Germany), 2 R. International Arbitration Awards 1025.

(77.) Ruth Lapidoth, 1983, ‘The Strait of Tiran, The Gulf of Aqaba, and the 1979 Treaty of Peace’, AJIL, Vol. 77, pp. 84–107.

(p.101) (78.) D.P. O'Connell, 1975, The influence of Law on Sea Power, Manchester: Manchester University Press, p. 107.

(79.) Corfu Channel case, ICJ Report (1949), p. 4.

(80.) UN Charter, Articles 2(3) and 33.

(81.) Colombia-Panama Agreement delimiting Maritime Boundaries in the Caribbean Sea and the Pacific Ocean, Cartagena, November 20, 1976, in force from November 30, 1977, in R.R. Churchill and A.W. Lowe, 1983, New Directions in the Law of the Sea, Vol. 8, Oxford, London: Manchester University Press, p. 88.

(82.) India-Sri Lanka Agreement on the Boundary in Historic Waters signed in New Delhi on June 26, 1974 (in force from July 8, 1974), Ibid., Vol. 5, p. 326.

(83.) Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958, Article 12.

(84.) UNCLOS, Official Records, Vol. 3, Provision No. 21, p. Ill (Working Paper of the Second Committee: Main Trends), A/CONF.62/L-8 Rev. V.

(85.) Draft Convention. A/CONF.62/WP.10/Rev. 3 dated August 27, 1980.

(86.) For details of voting, see A/CONF.62/SR.176, pp. 7–8.

(87.) Erik Bruel, 1947, International Straits: A Treatise on International Lank London: Sweet and Maxwell, p. 37.

(88.) Ibid., pp. 38–9.

(89.) Acts of the Conference for the Codification of International Law, Territorial Waters, Minutes of the Second Committee (1930), p. 148.

(90.) Corfu Channel case, ICJ Report (1949), p. 4.

(91.) Ibid., p. 28.

(92.) Statement of US Representative before Sub-Committee II of the Seabed Committee, 65 Department of State Bulletin, 263 (1971).

(93.) President Nixon's Third Annual Report to the Congress, February 09, 1972; 66 Department State Bulletin, (1972), p. 409.

(94.) UN Doc. A/AC.138/SC. II/L-4 (1971).

(95.) UN Doc. A/AC.138/SC.II/L-7 (1972).

(96.) UN Doc. A/AC.138/SC.II/L-30 (1973).

(97.) UN Doc. A/AC.138/SC.II/L-18 (1973).

(98.) UN Doc. A/AC.138/SC.II/L-42 (1973).

(99.) Third UNCLOS, Official Records, Vol. 2, pp. 133–4.

(100.) UN Doc. A/AC.138/SC.II/L-49 (1973).

(101.) UNCLOS, Article 25 (3).

(102.) UNCLOS, Articles 22 (3) and 41 (4).

(103.) UNCLOS, Articles 20, 22 (3) and 23.

(104.) Compare UNCLOS, Articles 21 and 42.,

(105.) UNCLOS, Articles 30 and 31.

(106.) UNCLOS, Article 26.

(107.) UNCLOS, Article 27.

(p.102) (108.) The Territorial Waters, the Continental Shelf, the Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976), Section 4 (3).

(109.) Statement of H.R. Gokhale, Minister of Law, Justice and Company Affairs, at the Caracas Session (July 03, 1974); Third UNCLOS, Official Records, Vol. 1, p. 96.

(110.) UN Doc. A/CONF.62/C.2/L-3.

(111.) UN Doc. A/CONF.62/C.2/L-16.

(112.) UN Doc. A/CONF.62/WP.8/Rev. 1/Part II.

(113.) Statement of the delegate of Malaysia in the Informal Meeting of the Second Committee, September 07, 1976.

(114.) O.P. Sharma, ‘Straits Used for International Navigation’, in R.P. Anand (ed.), 1976, Law of the Sea: Caracas and Beyond, New Delhi: Radiant Publishers, p. 133.

(115.) Report of the Chairman of the Second Committee, UN Doc. A/ CONF.62/L-17.

(116.) O.P. Sharma, ‘Straits used for International Navigation’, p. 136.

(117.) Texts in 1 Pleadings, Oral Arguments, Documents, Corfu Channel case, ICJ Report (1949), pp. 66–86,

(118.) Ibid, p.28.

(119.) Ibid, p. 29.

(120.) McDougal and Burke, 1962, Public Order of the Oceans, pp. 206–7.

(121.) Report of the International Law Commission, General Assembly, Official Records, Eleventh Session, Supplement No. 9(A/3159), p. 20.

(122.) Report of the International Law Commission (1956), p. 22. Article 24 in Section D authorized coastal States to require prior authorization and/or notification for the passage of warships through the territorial sea, but in the commentary, the Commission noted that this requirement could not be imposed for passage of these vessels through straits, ibid, pp. 22–3.

(123.) UNCLOS Official Records, Vol. 2, p. 134.

(124.) UN Doc. A/CONF.13/C.I/L_39; UNCLOS, Official Records, Vol. 3, p. 220.

(125.) Philippines Note Verbale of March 07, 1955 to the UN Secretary General. UN Doc. A/2934 (1955), pp. 52–3.

(126.) Indonesian Communique of December 14, 1957, in Whiteman, Digest of International Law, Vol. 4, p. 284.

(127.) D.P. O'Connell, 1971, ‘Mid Ocean Archipelagos in International Law’, BYIL, Vol. 45, No. 1, p. 15.

(128.) UN Doc. A/CONF.62/C.2/ L-49; for proposals submitted to the Seabed Committee, see Doc. A/AC.I38/SC.II/L-48.

(129.) See the Fijian general statement at the Third UNCLOS, Official Records, Vol. 1, p. 113 and the statement of the Philippines' delegate at the 31 plenary meeting in Caracas (Official Records, Vol. 1, p. 124.)

(p.103) (130.) Statement of H.R. Gokhale, leader of the Indian delegation, Third, UNCLOS Official Records, p. 96.

(131.) UN Doc. A/CONF.62/C.2/L-4 dated July 26, 1974 in the Third UNCLOS, Official Records, Vol. 3, pp. 81–2.

(132.) Churchill and Lowe, 1988, Law of the Sea, pp. 106–7, where these fifteen countries have been mentioned, indicating the conformity of their national legislation/declarations on the concept of archipelagos with the provisions of the Convention.

(133.) This was indicated by RL. Fraser, then Chief Hydrographer to the Government of India in ‘A Working Paper on the Definition of the Continental Margin’ submitted to the Law of the Sea and Seabed Committee chaired by the Cabinet Secretary in 1978.

(134.) O.P. Sharma, 1995, ‘India and the UN Convention on the Law of the Sea’, ODIL, Vol. 26, p. 398.

(135.) For proposals submitted previously to the Seabed Committee see Doc. A/AC.138/C.II/L-48.

(136.) For general debate where thirty-two delegations participated, see Third UNCLOS, Official Records, Vol. 2, pp. 260–72.

(137.) Ibid., p. 262.

(138.) United Nations Convention on the Law of the Sea, 1982, Article 46.

(139.) Ibid, Article 47.