climate-ocean

Book page 32-33

STRAITS USED FOR INTERNATIONAL NAVIGATION

Section: Part III, Articles 34-45

The regime of passage through straits used for international passage is entirely independent of the regime of the territorial sea; to the extent to which it is applicable, the former takes precedence over any other regulations of the Convention.[1] Applicability of the provisions is dependent on two conditions: ____(1) there must be a recognized strait used for international navigation[2] which is not regulated by long-standing international conventions[3] and
____(2) the vessel must be in transit passage, continuous and expeditious traversing[4] without delay[5] of the strait. Other activities or vessels not in “transit passage” are treated in accordance with the provisions applying to the territorial sea[6].

The Convention does not define the term “strait”. Any geographical formation commonly understood to be a navigable strait would therefore fall under these provisions. However, Part III applies only to those straits which are used for international navigation[7] unavoidable for convenience of navigation[8] and provide access from one part of an exclusive economic zone or the high seas to another part of an exclusive economic zone or the high seas[9]. As the exclusive economic zone commences twelve nautical miles from the baseline, the regime of the passage of straits will generally apply only in straits with a width of twenty-four nautical miles or less, for when there is within the strait an equally convenient route which is part of the high seas or the exclusive economic zone, the regime of passage through straits does not apply, just as it is not applicable if one end of the strait opens only into the territorial sea of a third state[10].

[1] Art. 34, 45 ,
[2] Art. 37; 38, Para . 1;45 ,
[3] Art. 35, Subpara. (c) ,
[4] Art. 38, Para . 2 ,
[5] Art. 39, Subpara. 1 (a) ,
[6] Art. 38, Para . 3 ,
[7] Art. 37 ,
[8] Art. 38, Para . 1 ,
[9] Art. 34; 45 ,
[10] Art. 45; 36; 38 , [11] Art. 87 ,
[12] Art. 17-26 ,
[13] Art. 39; 40; 42, Para.4 ,
[14] Art. 41;, Para . 7 ,
[15] Art. 44 ,
[16] Art. 44; 25, Para . 3 ,
[17] Art. 41. ,
[18] Art. 42, Para . 1 ,
[19] Art. 33 ,
[20] Art. 42, Subpara. 1(d) ,   [21] Art. 42, Para.2 ,
22 Art. 40 ,
23 Art. 39, Para . 3 ,
24 Art. 42, Para . 4
25 Art. 39 ,
26 Art. 39, Para . 2 ,
27 Art. 43 ,
28 Art. 233 (Art. 211-232) ,
29 Art. 233
30 Art. 42, Para . 5; Art. 236

The concept of transit passage takes its place midway between "freedom of navigation"[11] and "innocent passage,"[12] while being related more closely in structure to the latter. Transit passage includes provisions of conduct[13] and the use of sea lanes and traffic separation schemes;[14] states bordering straits are obligated not to hamper any passage[15] and they have no right to suspend transit passage temporarily even in specifically designated areas as is possible for innocent passage in the territorial sea[16]. The jurisdiction of states bordering straits is restricted to administration: navigation (including sea lanes and traffic separation schemes)[17] pollution, fishing, loading and unloading[18]. However, it also includes the fields for which the state has jurisdiction in the contiguous zone[19] namely the prevention of infringement of customs, fiscal, immigration, and sanitary laws[20]. Any such regulations may not be discriminatory nor may they have the practical effect of abolishing the right of transit passage[21]. Vessels may not conduct research and survey activities without the consent of the states bordering the strait[22]. Aircraft may overfly the straits[23].Both vessels and aircraft must comply with coastal state regulations[24] refrain from threats[25], and respect international regulations regarding safety at sea and pollution[26], regulations for prevention of pollution are to be established by agreement[27]. It should be emphasized that the Convention provisions in respect to pollution from vessels[28] do not affect or apply within the regime of straits; only if there is major damage or the threat of major damage may the bordering states act[29].

The right of transit passage also applies without restriction to warships and government-owned commercial vessels, but the flag state in each case is responsible for any damage caused by vessels which are entitled to sovereign immunity[30].

[1] Art. 34, 45 ,   [2] Art. 37; 38, Para . 1;45 ,    [3] Art. 35, Subpara. (c) ,    [4] Art. 38, Para . 2 ,    [5] Art. 39, Subpara. 1 (a) ,   [6] Art. 38, Para . 3 ,    [7] Art. 37 ,    [8] Art. 38, Para . 1 ,    [9] Art. 34; 45 ,   [10] Art. 45; 36; 38 ,    [11] Art. 87 ,    [12] Art. 17-26 ,    [13] Art. 39; 40; 42, Para.4 ,    [14] Art. 41;, Para . 7 ,    [15] Art. 44 ,   [16] Art. 44; 25, Para . 3 ,    [17] Art. 41. ,    [18]8 Art. 42, Para . 1 ,    [19] Art. 33 ,    20 Art. 42, Subpara. 1(d) ,    [21] Art. 42, Para.2 ,    22 Art. 40 ,    23 Art. 39, Para . 3 ,    24 Art. 42, Para . 4     25 Art. 39 ,    26 Art. 39, Para . 2 ,    27 Art. 43 ,    28 Art. 233 (Art. 211-232) ,    29 Art. 233     30 Art. 42, Para . 5; Art. 236

6] Art. 44; 25, Para . 3[17] Art. 41.Art. 42, Para . 1Art. 3320] Art. 42, Subpara. 1(d)21] Art. 42, Para.222] Art. 4023] Art. 39, Para . 324] Art. 42, Para . 4[25] Art. 3926] Art. 39, Para . 2[27] Art. 43] Art. 233 (Art. 211-232)29] Art. 233 [30] Art. 42, Para . 5; Art. 236

; 25, Para . 317] Art. 41.[18] Art. 42, Para . 119] Art. 3320] Art. 42, Subpara. 1(d)1] Art. 42, Para.222] Art. 4023] Art. 39, Para . 324] Art. 42, Para . 4] Art. 3926] Art. 39, Para . 227] Art. 43 Art. 233 (Art. 211-232)rt. 233 30] Art. 42, Para . 5; Art. 236

Book published:
1988 Fairplay/UK,
2005 (reprint) by

Trafford Publishing,
1663 Liberty Drive Suite 200
Bloomington, IN 47403, Canada.

329 pages, ISBN 1-4120-7665-x;

Available via online-contributer

Preface of the reprint in 2005

More than 15 years ago FAIRPLAY PUBLICATIONS Ltd, Coulsdon, Surrey, England, published the book "Bernaerts' Guide to the Law of the Sea - The 1982 United Nations Convention". The guiding potential of the book to find access to the Law of the Sea Convention is still given. Internet technology and publishing on demand invite to provide the interested reader and researcher with this tool again. Only the Status of the Convention (ratification etc) has been updated and instead of the Final Act, the book edition includes the "Agreement relating to the Implementation of Part XI of the United Nations Convention of the Law of the Sea" of 1994. The corresponding web site neither includes the text of the 1982 Convention, nor the Agreement of 1994. The thorough Index of the 1988 edition is reproduced without changes.

Arnd Bernaerts, October 2005,

Comments 1988-1990

___"an invaluable guide to the understanding and implementation of the 1982 United Nations Convention on the Law of the Sea"

Satya N. Nandan, U.N. Undersecretay, in: Book Foreword, 1988
__"clearly presented" R.R. Churchill, in: Maritime Policy & Management 1989, p. 340
__"the (book's) concept, which is so wonderful simple, is exactly the factor which makes the book so useful for both the novice as well as the person with extensive experience"

M. Bonefeld, in: Verfassung und Recht, 1989, pp. 83-85

__"the work contains much useful background information…." R.W. Bentham, in: Journal of Energy & Natural Resource Law, 1989, p. 336

__"Bernaerts has saved us a struggle" JG, in: Fairplay Shipping Weekly Magazin, 13th October 1988, p. 33

__"this is probably the best edition on the Convention to put into the hands of students"

A.V. Lowe, in: Int'l and Comparative Law Quarterly 1990, p. 16

__"it will be an invaluable reference tool and should sit on the book shelves of policy makers and all others who are involved in maritime matters"

Vivian I. Forbes, in: The Indian Ocean Review, May 1990, p.10

Bernaerts’s Guide to the 1982 United Nations Convention on the Law of the Sea

FOREWORD of the 1988 edition
by Satya N. Nandan

Special Representative of the Secretary-General of the United Nations for the Law of the Sea Office for Ocean Affairs and the Law of the Sea

Revolutionary changes have taken place in the International Law of the Sea since 1945. The process of change was accelerated in the last two decades by the convening in 1973 of the Third United Nations Conference on the Law of the Sea. The protracted negotiations, spanning over a decade, culminated in the adoption of the United Nations Convention on the Law of the Sea in 1982. By 9 December 1984, the closing date for signature, 159 signatures were appended to the Convention, the largest number for any such multilateral instrument in the history of international relations.

The Convention, which was adopted as a comprehensive package, introduced a new equity in the relationship among states with respect to the uses of the ocean and the allocation of its resources. It deals, inter alia, with sovereignty and jurisdiction of states, navigation and marine transport, over flight of aircraft, marine pollution, marine scientific research, marine technology, conservation and exploitation of marine living resources, the development and-exploitation of marine non-living resources in national and international areas, and unique provisions dealing with the settlement of disputes concerning the interpretation and application of the new regime.

There is no doubt that as we approach the 21st century, more and more attention will be paid to the uses of the oceans and the development of their resources. It is important, therefore, that these developments should take place within a widely accepted legal framework so that there is certainty as to the rights and obligations of all states. The United Nations Convention on the Law of the Sea provides that framework. It establishes a standard for the conduct of states in maritime matters. It is thus a major instrument for preventing conflicts among states.

The convention and its annexes contain over 400 articles. For many it may be a formidable undertaking to grasp the substance and structure of it without making a considerable investment in time and energy. Mr Bernaerts' guide, therefore, is a welcome addition to the growing body of literature on the convention. It provides a most useful reference tool which will benefit administrators and policy makers, as well as scholars. It makes the convention accessible to the uninitiated and refreshes, at a glance, the memories of the initiated. With meticulous references and graphic presentations of the provisions of the convention, Mr Bernaerts has given to the international community an invaluable guide to the understanding and implementation of the 1982 United Nations Convention on the Law of the Sea.
April 1988

PREFACE (extract) of the 1988 edition

The reader will be aware that the 1982 United Nations Convention on the Law of the Sea is the first constitution of the oceans, a ground-breaking document in many respects. He or she might also have made the discovery that the full text of the Convention is immediately accessible only to experts. If the Convention were only a treaty consisting of straightforward technical regulatory provisions, it could be left to them with a clear conscience. But the Convention is to a large extent a political document and, as such, is expected to influence significantly the development of relations among the states in the world community; for this reason, a wide-spread knowledge of the scope, goals, and regulatory framework of the Convention can only serve to further the aims of the document and would surely follow the intentions of the many men and women who made this Convention their life-work, such as Arvid Pardo (Malta), Hamilton Shirtey Amerasinghe (Sri Lanka), Tommy T. B. Koh (Singapore), and Satya N. Nandan (Fiji), to name only a few of the hundreds who worked on the preparation of this Convention.

As the reader uses the Guide (Part II), he will find that many provisions of the Convention are much easier to understand if one knows the basic framework within which a particular regulation is placed. The Guide aims to provide this framework, with reference to the text of the Convention and, in addition, t& the supporting Commentary of Part III, which describes the overall context of the major terms arid concepts. The Introduction of Part I sketches the historical background of the Convention and some of the general effects. A detailed index at the end of the book will be of assistance in finding specific subjects.