Introduction
David D. Caron and Nilufer Oral
The importance of straits, particularly those used in international navigation, has been long recognized in international law. One of the important debates during the Third United Nations Law of the Sea Conference concerned the regime of passage through straits used in international navigation. The result was the creation of a multi-tiered legal framework of passage that included the entirely a new “transit passage” regime. Although over thirty years have passed since the adoption of the 1982 United Nations Convention of the Law of the Sea, the vital role played by straits in the global communications network continues to be surrounded by conflicts between the interests of coastal states and shipping. Challenges still exist to achieving the simultaneous global goals of secure passage of vessels and protection of the marine environment.
The Istanbul Bilgi University Center for Marine Law and Research and the Law of the Sea Institute at the University of California, Berkeley together with the Korean Ocean Research and Development Institute (kordi) and the Ocean Policy Research Foundation (oprf) convened experts in international law for an international symposium entitled Straits Used in International Navigation: Can International Law Meet the Challenge. This symposium was held in Istanbul against the back drop of the Strait of Istanbul where 50,000 ships annually ply through the center of this ancient city of some thirteen million people.
The symposium sought to examine from different perspectives the challenges created by the regime of navigation for straits used for international navigation. These challenges include that of ensuring safety of passage and protection of the marine environment, providing security of passage, especially against the increasing threat of piracy in key straits, and determining the exact regime applicable in straits where the the applicability of the transit passage regime is contested. The following chapters attempt to bring light to the question reflected in the title of the symposium.
The importance of straits for international navigation was highlighted in the landmark 1949 Corfu Channel Case, the first case brought before the then newly established International Court of Justice. Since then the international law of straits has developed into one of the more complex and challenging regimes for the law of the sea. Before the 1982 United Nations Convention on the Law of the Sea (Unclos) non-suspendable innocent passage was the customary international law regime for foreign-flagged commercial and war vessels navigating straits that were part of the territorial sea of a coastal State.
However, as highlighted in several chapters in this book, following the adoption of the 1982 Unclos different regimes for different straits emerged giving different rights and obligations to the coastal and flag States. By contrast, the regime of innocent passage for foreign vessels in the territorial sea remained unchanged under Unclos. Why this complexity for straits used in international navigation?
Part I provides a broad historical and legal contextual setting for the detailed examination of specific straits.
David Caron, in the first chapter, The Great Straits Debate: The Conflict, Debate, and Compromise that Shaped the Straits Articles of the 1982 United Nations Convention on the Law of the Sea, provides an insightful overview and analysis of the dynamics that shaped the evolution of the international law of passage in straits used in international navigation. The tension between coastal States and shipping interests, especially the Super Power naval interests (u.s. and u.s.s.r. ) for unimpeded passage, converged in the narrow waters of straits, whose strategic importance for free navigation seemed threatened by the extension of coastal State territorial waters to 12 nautical miles. For this reason, as highlighted by Caron, “[t]he regime to be applied in straits used for international navigation became one of the cardinal issues on which the successful adoption of a Convention would depend.” Detailing step-by-step the negotiations for the regime of straits, Caron brings out the different interests at play, especially the pivotal concern of coastal States for protection of the marine environment in straits vulnerable to increasing passage of oil, nuclear waste and other hazardous cargoes. Caron shows how the regime of straits used in international navigation that emerged under Part III of the 1982 Unclos was the product of artful negotiation and compromise.
In the second chapter, Rights and Responsibilities of Strait States, Jon Van Dyke provides a clear overview of the multifaceted straits regimes under the 1982 Unclos, identifying four distinct categories of straits and the different rights and responsibilities attached to each of the respective regimes. Van Dyke further highlights specific issues such as the limited enforcement competence of strait States, charges that can be imposed on ships in passage, and further examines a key question as to whether transit passage is customary international law. In his detailed and succinct overview of the different straits regimes and key questions, Van Dyke also takes a novel approach in comparing the different international regimes applicable to canals and rivers with that of straits used in international navigation as possible models for application in straits.
Part II of the book examines challenges of protection of the marine environment through the experience of three straits subject to different regimes of passage: transit passage in the Torres Strait: internal waters passage, according
to Canada, in the Northwest Passage: and non-suspendable passage in the Messina Strait.
In Chapter 3, Making or Breaking the International Law of Transit Passage? Meeting Environmental and Safety Challenges in The Torres Strait with Compulsory Pilotage, Donald Anton, through the perspective of the Torres Strait, examines the ongoing tension between the interest of the maritime industry in maintaining an expansive right of transit passage against the coastal State interest in having greater regulatory competence for protection of the marine and coastal environment. The Torres Strait is located in the region of the Great Barrier Reef, one of unesco’s world heritage sites. The Strait was included in the extension of the Great Barrier Reef particularly sensitive sea area (pssa), established by the imo. When Australia imposed compulsory pilotage a number of States objected that the measure was in violation of transit passage rights. In his detailed review Anton walks the reader through the debates that took place in the imo on the Torres Straits and lays the argument that compulsory pilotage in the Torres Strait is based on local or special customary practice.
In Chapter 4, Canada and the Governance of the Northwest Passage: Rough Waters, Cooperative Currents, Sea of Challenges, David VanderZwaag navigates the reader through the varied legal currents of the Northwest Passage, which was one of the earliest areas of political and legal conflict between the coastal State interest to protect sensitive marine environments and the shipping interests for unimpeded passage rights. VanderZwaag recounts the 1969 voyage of the U.S. flagged oil tanker Manhattan through the Northwest Passage, which initiated a legal and political controversy on the legal status of this northern waterway that has since continued. The Northwest Passage highlights the tension between the demands of the coastal State, in this case Canada, to regulate for protection of the marine environment and the demands of shipping interests for unimpeded passage. The U.s. has declared the Northwest Passage to be a strait open to international navigation and subject to transit passage, whereas Canada has declared it as part of Canadian internal waters and not subject to international law. This legal conflict has become all the more significant with the prospect of increased shipping due to climate change in the Arctic and associated risks of vessel source pollution. Vanderzwaag lays out the existing uncertainties of shipping governance in the region, and provides an in-depth overview of this legal conflict with a detailed update on recent initiatives taken at the national and international levels.
In Chapter 5, The Strait of Messina and the Present Regime of International Straits, Tullio Scovazzi in examining the regime of passage in the Messina Strait raises questions on the regime of transit passage for protection of the marine
environment. The “Messina exception” which was introduced by Italy in 1979 during the Unclos III negotiations, and adopted by Unclos, maintained the customary international regime of non-suspendable passage in straits that are bordered by a single State and formed by an island that has an alternative and equally accessible passage through the high seas or EEZ . Scovazzi reviews the different passage regimes in Unclos and also the specific case of Italian regulation in the Messina Strait following an oil tanker accident in 1985. Scovazzi raises questions regarding, and points out gaps in, the transit passage regime. He underlines the weakness in the transit passage regime for coastal State competence on environmental protection, such as the restriction of enforcement powers of the State bordering a transit passage to cases of major damage. More importantly, he concludes that as demonstrated by Italian experience in the Messina Strait in some cases even the nonsuspendable innocent passage regime is inadequate to meet the needs of the coastal State for environmental protection.
Part III of the book examines straits that are excluded from Part III of Unclos on straits and subject to ‘special regimes.’
In Chapter 6, The Baltic Straits, Said Mahmoud examines the legal regime of the Baltic/Danish Straits, governed since 1857 by the Sound Dues Treaty and the 1857 bilateral treaty with the United States. The Baltic/Danish Straits are straits contemplated within the exclusion provided by Article 35 (c) of Unclos. However, while Denmark and Sweden have rejected the application of the transit passage regime in these straits and taken the position for the application of non-suspendable innocent passage, as Mahmoudi explains, this has not prevented controversy on the nature of the regime of passage through these straits. The controversy was exposed first during the construction of the Sound Belt Bridge and later with the imposition of mandatory pilotage by Sweden along with other measures for protection of the marine environment.
In Chapter 7, Korean and Jeju Straits, Boo Chan Kim and Seokwoo Lee in an in-depth study of the Jeju and Korean Straits examine a host of issues but in particular the need to build maritime security in Southeast Asian sea lanes. One of the interesting legal issues examined concerns South Korea’s denial of passage to North Korean ships seeking passage through the Jeju Strait. According to the authors the Jeju Strait is subject to the regime of non-suspendable passage and not transit passage and for this reason has in the past denied passage to North Korean ships as non-innocent passage. Further, because of the conflict between China and Korea in the Ieodo waters with China, the authors argue for the need to create a Northeast Asian Maritime Cooperation Regime to effectively protect and to secure maritime security in the sea lanes surrounding the Jeju Strait and surrounding waters.
Dolunay Özbek in Chapter 8, Article 35 (c) of the Law of the Sea Convention, focuses on the broader legal question surrounding Article 35 (c ) and its interpretation under international law. Specifically she looks at the conditions of application of Article 35 (c) that the convention be “long standing” and govern the straits in ‘whole’ or ‘in part’. She places her analysis with the context of four straits subject to Article 35 (c). One of the pertinent issues she also examines is the question of whether transit passage or innocent passage is the complementary regime of passage in cases where the convention governs the straits only “in part.”
Yüksel Inan examines the Turkish Straits in Chapter 9, The Turkish Straits and the Legal Regime of Passage. While Turkey is not a Party to the 1982 Unclos, it is generally accepted that the Turkish Straits, which have been regulated since 1936 by the Montreux Convention, would fall under the exclusion of Article 35 (c). Inan provides an historical background to the complex legal history of the Turkish Straits examining in detail provisions of the Montreux Convention on the passage of merchant vessels and vessels of war. The most recent controversy over the Turkish Straits, as outlined by Inan, arose during the 1990s when Turkey adopted new ship traffic regulations for the Straits because of high rate of shipping accidents in the Straits exacerbated by oil transportation from the Caspian region. The clash between coastal State interests to ensure for safe passage and environmental protection and the shipping interests for unimpeded passage is well reflected by Inan who traces the debates in the imo over these regulations and the meaning of “passage” under the Montreux Convention.
Alexander Skaridov in Chapter 10, The Sea of Azov and the Kerch Straits, examines the legal questions surrounding the Kerch Strait. The historical dissolution of the former U.S.S.R. had many ramifications, including on the relations between Ukraine and Russia. He examines the outstanding legal controversies on maritime delimitation in the Azov Sea and the status of the Kerch Strait. Prior to 1991, the Azov Sea and Kerch Strait were bordered by a single State and subject to the laws of the former U.S.S.R. However, as explained by Skaridov, following the dissolution of the U.S.S.R. two new coastal States emerged with competing claims over these bodies of waters, including the nature of the regime of passage through the Kerch Straits, the resolution of which has remained elusive.
Part IV of this book examines challenges faced by states in providing for security of passage in straits used in international navigation, especially against the threat of piracy.
Ashley Roach in Chapter 11, imo Policies and Actions Regarding Piracy, outlines the steps and measures taken by the International Maritime Organization (imo) in addressing the piracy from 1983 until present. He details the various
imo resolutions, projects and initiatives undertaken by the imo, its different bodies and also by the Secretary-General. Roach further focuses on actions taken by the imo and member Governments in the Straits of Malacca and Singapore, off the coast of Somalia and West and Central Africa.
Clive Schofield in Chapter 12, Securing the World’s Most Dangerous Strait? The Bab-Al Mandeb and Gulf of Aden, describes the Bab al-Mandeb Strait as among the most dangerous pirate infested waterways in the world. Schofield details the multiple challenges for providing for the security of international commercial shipping through this major artery for global commerce. In addition to the threat of piracy attacks and armed robbery, according to Shofield, the Strait is also vulnerable to a plethora of illegal maritime activities including drugs, arms and people smuggling, the dumping of toxic waste, and illegal, unreported and unregulated fishing, as well as maritime terrorism attacks. The challenges are exacerbated by regional political instability and conflicting maritime claims by the neighboring coastal States, most of which are parties to Unclos. Schofield outlines the measures taken at the international level, such as through NATO , to provide for security of passage. However, he points out remaining legal gaps in national laws on questions of jurisdiction and punishment.
Mary George in Chapter 13, Security, Piracy and Terrorism in the Straits of Malacca and Singapore, critiques the treatment of piracy and terrorism in the Straits of Malacca and Singapore at the international, regional and municipal levels. The Malacca and Singapore Straits are key waterways for international shipping and also vulnerable to the threat of piracy attacks and armed robbery. George examines in detail the international law framework on piracy including a critique of gaps in Unclos and the application of universal jurisdiction for the capture and prosecution of pirates. She examines the actions taken by the ASEAN member States at the regional level pointing out legal shortcomings in the national legal systems.
Kuen-Chen Fu in the Chapter 14, Safety and Security Issues in the Taiwan Strait—Some Reflections, looks at how the two “Chinas” bordering the strait have cooperated to address piracy. Fu gives a colorful historical background to piracy in the Taiwan Strait. In a comparative legal analysis including specific piracy cases Fu points out inconsistencies between the laws in Taiwan and the prc and makes recommendations for changes. He further outlines measures taken by both Taiwan and the prc individually and cooperatively in the Strait against piracy.
The last chapter, Cooperation in the Straits of Malacca and Singapore, Takashi Ichioka details the historical development and operation of the only
international mechanism for cooperation between shipping interests and the strait State, which was established for the Straits of Malacca and Singapore. The importance of cooperation between user States and coastal States is highlighted with a focus of important contribution of the mechanism for cooperation against piracy in the Straits of Malacca and Singapore.
While this book does not claim to address all issues and challenges for straits under international law, it is the hope of the editors and contributors that it refocuses our attention on political and legal challenges which remain notwithstanding the historic negotiations of the 1982 Unclos. The chapters make clear that uncertainties remain in regard to the different rights and obligations associated with the different passage regimes under international law. Tensions between coastal State interests to protect the marine environment and shipping interests to unimpeded passage continue although Unclos was adopted over thirty years ago, as reflected in the debate in the imo on compulsory pilotage in the Torres Strait forming part of the Great Barrier Reef, an internationally recognized and protected marine area.
Has international law met the challenges of straits since the adoption of the 1982 Unclos? If not completely, much progress has been made especially through international and regional cooperation. However, continued dialogue and most importantly cooperation among strait States and user States is necessary, including expanded application of cooperative mechanism as foreseen under Article 43 of Unclos.
Part One
The Straits Regime in the 1982 Law of the Sea Convention
The Great Straits Debate: The Conflict, Debate, and Compromise That Shaped the Straits Articles of the 1982 United Nations Convention on the Law of the Sea
David D. Caron*
1 Introduction
Straits simultaneously involve interests both near and far. And it is that fact that makes passage through straits a difficult object of negotiations. Although all nations have an interest in efficient shipping, it is particular nations—often far from the straits—that have interests in the unimpeded movement of naval vessels or that directly or through their nationals have interests in the unimpeded movement of commercial vessels. Simultaneously, it is the states with coasts on these straits that most directly face the risks and other costs of such vessel passage. Negotiating solutions to this ‘near-far’ clash of interests is inherently difficult. This Chapter renews for us the conflict, debate and compromise that shaped the straits articles of the 1982 United Nations Convention on the Law of the Sea.
2 The Road to unclos III: A Brief Overview of the Straits Debate Prior to unclos III
The law of the sea present in custom in the 1800s began to collapse at the outset of the 20th century. This collapse in part began because of improvements
* Dean and Professor of Law, The Dickson Poon School of Law, King’s College London. An earlier version of this Chapter was presented in Istanbul on September 9, 2011 at a Conference entitled “Safety, Security and Environmental Protection in Straits Used in International Navigation: Is International Law Meeting the Challenge?” At that time, the author served as President, American Society of International Law, C. William Maxeiner Distinguished Professor of Law, University of California at Berkeley and Co-Director of The Law of the Sea Institute. I thank Lt. Joel Coito, u.s.C.G ., ‘13, Berkeley Law, for his assistance in preparing this paper.
in technology that opened the oceans to more and more exploitation. First, the advent of steam engines and of refrigeration meant that more efficient and more distant fisheries emerged. Second, the discovery of oil offshore and the development of the capacity to exploit that resource lead to more and more offshore oil development. These two factors led coastal states to look to claim greater and greater bands of coastal waters. That tendency, the tendency to enclose the oceans, led to the possibility that many straits of the world—previously open to free navigation—would slip in whole or in part under national jurisdiction. Essentially, the issue after 1900 was how might the basic bargain for the oceans present in custom in the 1800s be reset. Although there are earlier roots, our story begins after the Second World War.
In particular, at the First un Conference on the Law of the Sea (unclos I), held in Geneva in 1958, the negotiations related to straits were as one might expect tied in large part to the vigorous debate surrounding the maximum breadth of the territorial sea. In the 1949 Corfu Channel 1 case, the International Court of Justice (icj ) established the right of States “in time of peace . . . to send their warships through straits used for international navigation between two parts of the high seas . . . provided that passage is innocent.”2 The Convention on the Territorial Sea and the Contiguous Zone, one of the four conventions adopted during unclos I, enshrined the language of Corfu Channel in Article 16, paragraph 4, which read:
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 territorial sea of a foreign State.
Simultaneously, however, unclos I did not succeed in fixing the outer limit of the territorial sea.
The Second un Conference on the Law of the Sea (unclos II) held in Geneva in 1960 was largely aimed at determining the outer limit of the territorial sea. Resolution of this issue was tied directly to the straits debate, as insistent maritime States predicated their acceptance of a 12-mile maximum territorial sea upon the “unrestricted passage through straits for ships and submarines, and of overflight of aircraft.”3 unclos II, however, ultimately also failed to reach consensus on the maximum breadth of the territorial sea.
1 Corfu Channel (merits) (United Kingdom v. Albania), 1949 icj Reports, 4.
2 Ibid., at 28.
3 Myron H. Nordquist et al., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. II (Dordrecht, 1993), 282.
3
The Straits Debate of unclos III
To recount negotiations with the Third United Nations Law of the Sea Convention (unclos III), one first must appreciate that the work of unclos III was organized into three main Subcommittees. Straits issues were addressed by Subcommittee II, a group charged with the “broadest and most complex mandate of all,” which, in addition to straits, included issues such as the territorial sea, high seas, fisheries, and the seabed within a State’s jurisdiction.4 These issues, for reasons of sheer scope and political importance, formed the “heart of . . . negotiations” in unclos III.5
During pre-unclos III deliberations in the Sea-Bed Committee within the Untied Nations, two dominant positions had emerged regarding the appropriate regime for navigation through straits:
1. “States bordering straits” view: Since straits were a part of their territorial sea, these States sought to protect what they saw as their interest and advocated “nonsuspendable innocent passage” of ships.6
2. “Straits States group”: States advocating a separate regime for the territorial sea and straits used for international navigation (i.e. u.s.a. , Soviet Union, Italy). These States argued for a regime of passage through straits based on freedom of navigation of the high seas for ships and freedom of overflight for aircraft.7 Professor William Burke, speaking to the Law of the Sea Institute, summarized this view: “it is already plain that the u.s. , and, probably, the U.S.S.R. , are concerned greatly over the effects of a 12-mile territorial sea on vehicular movement. The U.S. has widely circulated proposals to accept a 12-mile territorial sea if certain transit rights are also accepted.”8 Professor Burke also noted that “given the extremely high priority attached to military interests in the sea in the U.S. , the obvious question is: what will be the U.S. tradeoff to secure a provision on right of transit.”9
4 John R. Stevenson & Bernard H. Oxman, “The Preparations for the Law of the Sea Conference,” American Journal of International Law, 68 (1974): 1, 3–4.
5 Ibid , at 9.
6 Nordquist et al., United Nations Convention on the Law of the Sea 1982: A Commentary, 284–5.
7 Ibid
8 William Burke, “Consequences for Territorial Sea claims of Failure to Agree at the Next Law of the Sea Conference.” Law of the Sea: A New Geneva Conference. Proceedings of the 6th Annual Conference of the Law of the Sea Institute (Kingston, 1972), 41, edited by Lewis M. Alexander.
9 Ibid., at 42.
During the preparatory negotiations for unclos III, non-resource uses of the oceans, particularly navigation and overflight, were targeted as areas in which the deterioration of respect for customary international law was most acute.10 These preparatory negotiations also indicated broad support for protection of these non-resources uses of the oceans, and in particular for protection of freedom of the high seas.11 unclos III negotiators found widespread support for the 12-mile maximum breadth of the territorial sea. This 12-mile territorial sea, however, was “conditioned upon satisfactory resolution of other issues in the treaty, particularly those concerning straits and coastal resources.”12
An evaluation of the preparatory negotiations prior to unclos III indicated, “There can be little doubt . . . of the critical importance for a successful conference of adequate guarantees of transit in straits.”13 This prediction proved accurate. A post-unclos III commentary states: “The regime to be applied in straits used for international navigation became one of the cardinal issues on which the successful adoption of a Convention would depend.”14
To understand the centrality of the straits debate to the ultimate adoption of unclos III, it is helpful to track the session-by session-debates that took place during the unclos III meetings between 1973 and 1982.
3.1 The 1974 Caracas Session: June 20–August 29, 197415
Listed among the most significant accomplishments of this session was that the “inclusion in the treaty of a 12-mile territorial sea and a 200-mile economic
10 Stevenson & Oxman, supra note 5, at 9. See also Robert W. Morse, “Panel: Ocean Strategy for the United States,” National Policy Recommendations, Proceedings of the 4th Annual Conference of the Law of the Sea Institute (Kingston, 1970), 434: “The other most significant trend internationally has been in the direction of eroding the more traditional concept of freedom of the seas. There have been many steps in the past decade which have strengthened the concept of territorial seas and . . . extension of national ownership to continental shelf resources also goes in the direction of carving up the ocean for national purposes. Many of these steps have been taken either with the support or reluctant acquiescence of the United States.” Continuing, at 436, “Even if one has as his objective that of maximum international control of the ocean and its resources, it will come only as an historical continuation of the concept of freedom of the seas. And this concept is one that is ultimately determined by the freedom of movement of naval force.”
11 Ibid.
12 Ibid.
13 Ibid., at 12.
14 Nordquist et al., United Nations Convention on the Law of the Sea 1982: A Commentary, 286.
15 Organizational Session held December 3–December 15, 1973 at un Headquarters, New York.
zone was all but formally agreed, subject of course to a acceptable resolution of other issues, including unimpeded transit of straits.”16
The significance of this fundamental shift in positions at the 1974 Caracas Session was stressed by Professor Douglas Johnston at the 13th Annual Conference of the Law of the Sea Institute:
Until [the Caracas Session] it had been unclear that the proponents of narrow jurisdiction would accept the demand for a 200nm exclusive economic zone (eez ). By the conclusion of the Seabed Committee discussions, they were prepared to acquiesce in this particular trend, subject to the satisfaction on a number of other issues such as freedom of navigation, rights to transit in international straits, and a moderate limit to the territorial sea. The Caracas Session marked the emergence of the 200nm eez as a fait accompli, subject to the compromise agreements on these cognate issues. It is only after this conditional fait accompli had surfaced publicly at unclos III that the fundamental uncertainty regarding the dominant issues of extended jurisdiction began to dissolve.17
The consequence of this shift was that attention now focused on the precondition for the shift, the provisions regarding straits.
A pivotal event in the straits debate in this session was the introduction of the “U.K. articles.” Attempting to balance the legitimate interests of the “States bordering straits” group with the “Straits States group” focus on the freedom of navigation and overflight, the U.K. articles proposed a 12-mile territorial sea and three central elements:
1. A new right of “transit passage” applicable to the majority of straits used for international navigation;
2. Nonsuspendable innocent passage in straits not observing transit passage;
3. Provisions aimed at protecting the interests of States bordering straits.18
16 John R. Stevenson & Bernard H. Oxman, “The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session,” American Journal of International Law, 69 (1975): 1, 2 (1975) (emphasis added).
17 Douglas M. Johnston, “Extended Jurisdiction: The Impact of UNCLOS III on Coastal State Practice,” Proceedings of the 13th Annual Conference of the Law of the Sea Institute (1979) 14, edited by Lewis M. Alexander.
18 Nordquist, United Nations Convention on the Law of the Sea 1982: A Commentary, 287–88.
The U.K. Articles garnered broad support during initial debates of this session, however the United States re-asserted the “fundamental importance of unimpeded passage on, over, and under straits used for international navigation and addressed means of accommodating the concerns of straits States with respect to security, safety, and pollution.”19 Moderate voices, in seeking a balance that was “neither free transit nor innocent passage,” attempted to simultaneously address the concerns of the United States (and similarly situated countries) with those of straits States.20 This balance, established via the right of “transit passage,” would be further developed the following year in Geneva.
Article 34, the first article of Part III—Straits Used for International Navigation, “affirms that the regime of passage through straits used for international navigation . . . does not ‘in other respects’ affect the legal status of the waters forming such a strait.”21 The final text of Part III would eventually distinguish between transit passage (transiting a strait used for international navigation which is completely within the territorial sea of a Coastal state) in Articles 37–44 and nonsuspendable innocent passage in Article 45.22 Before those important provisions were finalized, however, the verbiage of Article 34, as the introduction to all of Part III, would be debated and modified on several separate occasions.
At this session Spain, favoring coastal State sovereignty, proposed the following:
1. The sovereignty of a coastal State extends to straits forming part of the territorial sea, whether or not they are used for international navigation.
2. The coastal State exercises this sovereignty in accordance with the provisions of these articles and with other rules of international law.23
This provision reflected the opinion of the representative of Spain to the conference, who added that “although the straits might be used for international navigation, they formed ‘part of the territorial sea of one or more States.’ ”24
19 Stevenson & Oxman, “The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session,” 15.
20 John R. Stevenson & Bernard H. Oxman, “The Third United Nations Convention on the Law of the Sea: The 1975 Geneva Session,” American Journal of International Law, 69 (1975): 763, 773.
21 Nordquist, United Nations Convention on the Law of the Sea 1982: A Commentary, 295, quoting unclos Art. 34.
22 Ibid., at 295.
23 Ibid., at 296.
24 Ibid., quoting Second Committee, 14th meeting (1974), para. 19, II Off. Rec. 136.
In this same session the Private group on straits, taking into account the “Main Trends Working Paper” (which was shaped by the support of six Socialist States of Eastern Europe for a proposal by the Soviet Union), proposed the following text at the 1975 Geneva Session:
1. The regime of passage through straits used for international navigation set out in this Chapter shall not in other respects affect the status of waters forming such straits (nor of the seabed, subsoil and superjacent airspace thereof) as provided for elsewhere in this Convention.
2. The sovereignty of jurisdiction of the strait State shall be exercised subject to the provisions of this Chapter and other rules of international law.25
Various modifications were made during the 1975 Geneva Session26 ultimately resulting in the Informal Single Negotiating Text (snt ), which read:
1. The regime of passage through straits used for international navigation established in this part shall not in other respects affect the status of the waters forming such straits nor the exercise by the strait State of its sovereignty or jurisdiction over such waters and their air space, bed and subsoil.
2. The sovereignty or jurisdiction of a strait State shall be exercised subject to the provisions of this part and other rules of international law.
3. For the purposes of this part “strait State” means a State bordering a strait to which these articles apply.27
Demonstrating an inherent difficulty of international treaty drafting, the term “Strait State” was changed to “the Straits States bordering the straits” on account of an awkward French translation. Paragraph three was thus rendered superfluous and eliminated.28
After repeated rejections of Spain’s proposal, submitted at the fourth, sixth, and seventh sessions of unclos III, to change the text of paragraph one from “in this Part” to “in this Convention,”29 the final text of the Article as drafted now reads:
25 Ibid., at 296–97.
26 I have retained this section here, rather than under the ‘1975 Geneva Session’ below for continuity, to show the evolution of Article 34 to its present form.
27 Ibid., at 297, quoting snt, Art. 34.
28 Ibid., at 300.
29 Ibid., at 297–98.
1. The regime of passage through straits used for international navigation established in this Part shall not in other respects affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their airspace, bed, and subsoil.
2. The sovereignty or jurisdiction of the States bordering the straits is exercised subject to this Part and other rules of international law.30
3.2 The 1975 Geneva Session: March 26–May 10, 1975
The “unimpeded passage of straits used for international navigation for all straits and aircraft” was considered one of ten critical elements of a possible agreement.31 As such, the 1975 Geneva Session proved to be a critical moment for drafting the key language and draft articles that would govern the straits regime. These articles were incorporated into the snt, the net result of the combined negotiating texts of each of the three main committees at unclos III.32
Much of the key language of the draft articles governing the straits regime was developed during the 1975 Geneva Session. Among the key provisions (note: some article numbers shown here were modified in the final version of the Convention) were the following.
Article 35 made clear that “the drawing of strait baselines in accordance with the rules provided for in the territorial sea chapter cannot alter passage rights in straits used for international navigation established in the treaty.” This explicit clarification, though seemingly evident, was deemed necessary, as the potential alteration of passage rights was a “source of some confusion” at the 1975 Geneva Session.33 The text of the complete draft article reads:
Nothing in this part shall affect:
(a) Any areas of internal waters within a strait, unless they were considered as part of the high seas or territorial sea prior to the drawing of strait baselines in accordance with the rules provided for in Article 6;
(b) The status of the waters beyond the territorial seas of strait States as exclusive economic zones or high seas; or
30 unclos , Art. 34.
31 Ibid., at 764.
32 Ibid., at 763, n. 2.
33 Ibid., at 774.
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4. Bur’s sons: Othin, Vili, and Ve. Of Bur we know only that his wife was Bestla, daughter of Bolthorn; cf. Hovamol, 141. Vili and Ve are mentioned by name in the Eddic poems only in Lokasenna, 26. Mithgarth(“Middle Dwelling”): the world of men. Leeks: the leek was often used as the symbol of fine growth (cf. Guthrunarkvitha I, 17), and it was also supposed to have magic power (cf. Sigrdrifumol, 7).
5. Various editors have regarded this stanza as interpolated; Hoffory thinks it describes the northern summer night in which the sun does not set. Lines 3–5 are quoted by Snorri. In the manuscripts line 4 follows line 5. Regarding the sun and moon [5]as daughter and son of Mundilferi, cf. Vafthruthnismol, 23 and note, and Grimnismol, 37 and note.
6. Possibly an interpolation, but there seems no strong reason for assuming this. Lines 1–2 are identical with lines 1–2 of stanza 9, and line 2 may have been inserted here from that later stanza.
7. Ithavoll(“Field of Deeds”?): mentioned only here and in stanza 60 as the meeting-place of the gods; it appears in no other connection.
8. Tables: the exact nature of this game, and whether it more closely resembled chess or checkers, has been made the subject of a 400-page treatise, Willard Fiske’s “Chess in Iceland.” Giant-maids: perhaps the three great Norns, corresponding to the three fates; cf. stanza 20 and note. Possibly, however, something has been lost after this stanza, and the missing passage, replaced by the catalogue of the dwarfs (stanzas 9–16), may have explained the “giant-maids” otherwise than as Norns. In Vafthruthnismol, 49, the Norns (this time “three throngs” instead of simply “three”) are spoken of as giant-maidens; [6]Fafnismol, 13, indicates the existence of many lesser Norns, belonging to various races. Jotunheim: the world of the giants.
9. Here apparently begins the interpolated catalogue of the dwarfs, running through stanza 16; possibly, however, the interpolated section does not begin before stanza 11. Snorri quotes practically the entire section, the names appearing in a somewhat changed order. Brimir and Blain: nothing is known of these two giants, and it has been suggested that both are names for Ymir (cf. stanza 3). Brimir, however, appears in stanza 37 in connection with the home of the dwarfs. Some editors treat the words as common rather than proper nouns, Brimir meaning “the bloody moisture” and Blain being of uncertain significance.
10. Very few of the dwarfs named in this and the following stanzas are mentioned elsewhere. It is not clear why Durin should have been singled out as authority for the list. The occasional repetitions suggest that not all the stanzas of the catalogue came from the same source. Most of the names presumably had some definite significance, as Northri, Suthri, Austri, and Vestri (“North,” “South,” “East,” and “West”), Althjof [7](“Mighty Thief”), Mjothvitnir (“MeadWolf”), Gandalf (“Magic Elf”), Vindalf (“Wind Elf”), Rathsvith (“Swift in Counsel”), Eikinskjaldi (“Oak Shield”), etc., but in many cases the interpretations are sheer guesswork.
12. The order of the lines in this and the succeeding four stanzas varies greatly in the manuscripts and editions, and the names likewise appear in many forms. Regin: probably not identical with Regin the son of Hreithmar, who plays an important part in the Reginsmoland Fafnismol, but cf. note on Reginsmol, introductory prose.
14. Dvalin: in Hovamol, 144, Dvalin seems to have given magic runes to the dwarfs, probably accounting for their skill in craftsmanship, while in Fafnismol, 13, he is mentioned as the father of some of the lesser Norns. The story that some of the dwarfs left the rocks and mountains to find a new home on the sands is mentioned, but unexplained, in Snorri’s Edda; of Lofar we know only that he was descended from these wanderers. [8]
15. Andvari: this dwarf appears prominently in the Reginsmol, which tells how the god Loki treacherously robbed him of his wealth; the curse which he laid on his treasure brought about the deaths of Sigurth, Gunnar, Atli, and many others.
17. Here the poem resumes its course after the interpolated section. Probably, however, something has been lost, for there is no apparent connection between the three giant-maids of stanza 8 and the three gods, Othin, Hönir and Lothur, who in stanza 17 go forth to create man and woman. The word “three” in stanzas 8 and 17 very likely confused some early reciter, or perhaps the compiler himself. Ask and Embla: ash and elm; Snorri gives them simply as the names of the first man and woman, but says that the gods made this pair out of trees.
18. Hönir: little is known of this god, save that he occasionally appears in the poems in company with Othin and Loki, and [9]that he survives the destruction, assuming in the new age the gift of prophesy (cf. stanza 63). He was given by the gods as a hostage to the Wanes after their war, in exchange for Njorth (cf. stanza 21 and note). Lothur: apparently an older name for Loki, the treacherous but ingenious son of Laufey, whose divinity Snorri regards as somewhat doubtful. He was adopted by Othin, who subsequently had good reason to regret it. Loki probably represents the blending of two originally distinct figures, one of them an old fire-god, hence his gift of heat to the newly created pair.
19. Yggdrasil: cf. stanza 2 and note, and Grimnismol, 29–35 and notes. Urth(“The Past”): one of the three great Norns. The worldash is kept green by being sprinkled with the marvelous healing water from her well.
20. The maidens: the three Norns; possibly this stanza should follow stanza 8. Dwelling: Regius has “sæ” (sea) instead of “sal” (hall, home), and many editors have followed this reading, although Snorri’s prose paraphrase indicates “sal.” Urth, Verthandiand Skuld:
“Past,” “Present” and “Future.” Wood, etc.: the magic signs (runes) controlling the destinies of men were cut on pieces of wood. Lines 3–4 are probably interpolations from some other account of the Norns. [10]
21. This follows stanza 20 in Regius; in the Hauksbokversion stanzas 25, 26, 27, 40 and 41 come between stanzas 20 and 21. Editors have attempted all sorts of rearrangements. The war: the first war was that between the gods and the Wanes. The cult of the Wanes (Vanir) seems to have originated among the seafaring folk of the Baltic and the southern shores of the North Sea, and to have spread thence into Norway in opposition to the worship of the older gods; hence the “war.” Finally the two types of divinities were worshipped in common; hence the treaty which ended the war with the exchange of hostages. Chief among the Wanes were Njorth and his children, Freyr and Freyja, all of whom became conspicuous among the gods. Beyond this we know little of the Wanes, who seem originally to have been water-deities. Iremember: the manuscripts have “she remembers,” but the Volva is apparently still speaking of her own memories, as in stanza 2. Gollveig (“GoldMight”): apparently the first of the Wanes to come among the gods, her ill-treatment being the immediate cause of the war. Müllenhoff maintains that Gollveig is another name for Freyja. Lines 5–6, one or both of them probably interpolated, seem to symbolize the refining of gold by fire. Hor (“The High One”): Othin.
22. Heith(“Shining One”?): a name often applied to wise-women and prophetesses. The application of this stanza to Gollveig is far from clear, though the reference may be to the [11]magic and destructive power of gold. It is also possible that the stanza is an interpolation. Bugge maintains that it applies to the Volva who is reciting the poem, and makes it the opening stanza, following it with stanzas 28 and 30, and then going on with stanzas 1 ff. The text of line 2 is obscure, and has been variously emended.
23. This stanza and stanza 24 have been transposed from the order in the manuscripts, for the former describes the battle and the victory of the Wanes, after which the gods took council, debating whether to pay tribute to the victors, or to admit them, as was finally done, to equal rights of worship.
25. Possibly, as Finn Magnusen long ago suggested, there is something lost after stanza 24, but it was not the custom of the Eddic poets to supply transitions which their hearers could generally be counted on to understand. The story referred to in stanzas 25–26 (both quoted by Snorri) is that of the rebuilding of Asgarth after its destruction by the Wanes. The gods employed a giant as builder, who demanded as his reward the sun and moon, and the goddess Freyja for his wife. The gods, terrified by the rapid progress of the work, forced Loki, who had advised the bargain, to delay the giant by a trick, so that the [12]work was not finished in the stipulated time (cf. Grimnismol, 44, note). The enraged giant then threatened the gods, whereupon Thor slew him. Oth’s bride: Freyja; of Oth little is known beyond the fact that Snorri refers to him as a man who “went away on long journeys.”
26. Thor: the thunder-god, son of Othin and Jorth (Earth); cf. particularly Harbarthsljothand Thrymskvitha, passim. Oaths, etc.: the gods, by violating their oaths to the giant who rebuilt Asgarth, aroused the undying hatred of the giants’ race, and thus the giants were among their enemies in the final battle.
27. Here the Volva turns from her memories of the past to a statement of some of Othin’s own secrets in his eternal search for knowledge (stanzas 27–29). Bugge puts this stanza after stanza 29. The horn ofHeimdall: the Gjallarhorn (“Shrieking Horn”), with which Heimdall, watchman of the gods, will summon them to the last battle. Till that time the horn is buried under Yggdrasil. Valfather’s pledge: Othin’s eye (the sun?), which he gave to the water-spirit Mimir (or Mim) in exchange for the latter’s wisdom. It appears here and in stanza 29 as a drinking-vessel, from which Mimir drinks the
magic mead, and from which he pours water on the ash Yggdrasil. Othin’s sacrifice of his eye in order to gain knowledge of his final doom is one of the series of disasters leading up to the destruction of the gods. There were several differing versions of the story of Othin’s relations with Mimir; another one, quite incompatible with this, appears in stanza 47. In the manuscripts Iknow and Isee appear as “she knows” and “she sees” (cf. note on 21). [13]
28. The Hauksbokversion omits all of stanzas 28–34, stanza 27 being there followed by stanzas 40 and 41. Regius indicates stanzas 28 and 29 as a single stanza. Bugge puts stanza 28 after stanza 22, as the second stanza of his reconstructed poem. The Volva here addresses Othin directly, intimating that, although he has not told her, she knows why he has come to her, and what he has already suffered in his search for knowledge regarding his doom. Her reiterated “would you know yet more?” seems to mean: “I have proved my wisdom by telling of the past and of your own secrets; is it your will that I tell likewise of the fate in store for you?” The Old One: Othin.
29. The first line, not in either manuscript, is a conjectural emendation based on Snorri’s paraphrase. Bugge puts this stanza after stanza 20.
30. This is apparently the transitional stanza, in which the Volva, rewarded by Othin for her knowledge of the past (stanzas 1–29), is induced to proceed with her real prophecy (stanzas 31–66). Some editors turn the stanza into the third person, making it a narrative link. Bugge, on the other hand, puts it [14]after stanza 28 as the third stanza of the poem. No lacuna is indicated in the manuscripts, and editors have attempted various emendations. Heerfather (“Father of the Host”): Othin.
31. Valkyries: these “Choosers of the Slain” (cf. stanza 1, note) bring the bravest warriors killed in battle to Valhall, in order to re-enforce the gods for their final struggle. They are also called “Wish-Maidens,”
as the fulfillers of Othin’s wishes. The conception of the supernatural warrior-maiden was presumably brought to Scandinavia in very early times from the South-Germanic races, and later it was interwoven with the likewise South-Germanic tradition of the swan-maiden. A third complication developed when the originally quite human women of the hero-legends were endowed with the qualities of both Valkyries and swan-maidens, as in the cases of Brynhild (cf. Gripisspo, introductory note), Svava (cf. Helgakvitha Hjorvarthssonar, prose after stanza 5 and note) and Sigrun (cf. Helgakvitha Hundingsbana I, 17 and note). The list of names here given may be an interpolation; a quite different list is given in Grimnismol, 36. Ranks ofthegods: some editors regard the word thus translated as a specific place name. Herjan (“Leader of Hosts”): Othin. It is worth noting that the name Hild(“Warrior”) is the basis of Bryn-hild (“Warrior in Mail-Coat”).
32. Baldr: The death of Baldr, the son of Othin and Frigg, was the first of the great disasters to the gods. The story is fully told by Snorri. Frigg had demanded of all created things, saving only the mistletoe, which she thought too weak to be worth troubling [15]about, an oath that they would not harm Baldr. Thus it came to be a sport for the gods to hurl weapons at Baldr, who, of course, was totally unharmed thereby. Loki, the trouble-maker, brought the mistletoe to Baldr’s blind brother, Hoth, and guided his hand in hurling the twig. Baldr was slain, and grief came upon all the gods. Cf. Baldrs Draumar.
33. The lines in this and the following stanza have been combined in various ways by editors, lacunæ having been freely conjectured, but the manuscript version seems clear enough. The brother ofBaldr: Vali, whom Othin begot expressly to avenge Baldr’s death. The day after his birth he fought and slew Hoth.
34. Frigg: Othin’s wife. Some scholars have regarded her as a solar myth, calling her the sun-goddess, and pointing out that her home in
Fensalir (“the sea-halls”) symbolizes the daily setting of the sun beneath the ocean horizon.
35. The translation here follows the Regius version. The Hauksbok has the same final two lines, but in place of the first [16]pair has, “I know that Vali | his brother gnawed, / With his bowels then | was Loki bound.” Many editors have followed this version of the whole stanza or have included these two lines, often marking them as doubtful, with the four from Regius. After the murder of Baldr, the gods took Loki and bound him to a rock with the bowels of his son Narfi, who had just been torn to pieces by Loki’s other son, Vali. A serpent was fastened above Loki’s head, and the venom fell upon his face. Loki’s wife, Sigyn, sat by him with a basin to catch the venom, but whenever the basin was full, and she went away to empty it, then the venom fell on Loki again, till the earth shook with his struggles. “And there he lies bound till the end.” Cf. Lokasenna, concluding prose.
36. Stanzas 36–39 describe the homes of the enemies of the gods: the giants (36), the dwarfs (37), and the dead in the land of the goddess Hel (38–39). The Hauksbokversion omits stanzas 36 and 37. Regius unites 36 with 37, but most editors have assumed a lacuna. Slith(“the Fearful”): a river in the giants’ home. The “swords and daggers” may represent the icy cold.
37. Nithavellir (“the Dark Fields”): a home of the dwarfs. Perhaps the word should be “Nithafjoll” (“the Dark Crags”). Sindri: the great worker in gold among the dwarfs. Okolnir [17](“the Not Cold”): possibly a volcano. Brimir: the giant (possibly Ymir) out of whose blood, according to stanza 9, the dwarfs were made; the name here appears to mean simply the leader of the dwarfs.
38. Stanzas 38 and 39 follow stanza 43 in the Hauksbokversion. Snorri quotes stanzas 38, 39, 40 and 41, though not consecutively. Nastrond(“Corpse-Strand”): the land of the dead, ruled by the goddess Hel. Here the wicked undergo tortures. Smoke-vent: the
phrase gives a picture of the Icelandic house, with its opening in the roof serving instead of a chimney.
39. The stanza is almost certainly in corrupt form. The third line is presumably an interpolation, and is lacking in most of the late paper manuscripts. Some editors, however, have called lines 1–3 the remains of a full stanza, with the fourth line lacking, and lines 4–5 the remains of another. The stanza depicts the torments of the two worst classes of criminals known to Old Norse morality oathbreakers and murderers. Nithhogg (“the Dread Biter”): the dragon that lies beneath the ash Yggdrasil and gnaws at its roots, thus symbolizing the destructive elements in the universe; cf. Grimnismol, 32, 35. The wolf: presumably the wolf Fenrir, one of the children of Loki and the giantess Angrbotha (the others being Mithgarthsorm and the goddess Hel), who was chained by the gods with the marvelous chain Gleipnir, fashioned by a dwarf “out of six things: the [18]noise of a cat’s step, the beards of women, the roots of mountains, the nerves of bears, the breath of fishes, and the spittle of birds.” The chaining of Fenrir cost the god Tyr his right hand; cf. stanza 44.
40. The Hauksbokversion inserts after stanza 39 the refrain-stanza (44), and puts stanzas 40 and 41 between 27 and 21. With this stanza begins the account of the final struggle itself. Thegiantess: her name is nowhere stated, and the only other reference to Ironwood is in Grimnismol, 39, in this same connection. The children of this giantess and the wolf Fenrir are the wolves Skoll and Hati, the first of whom steals the sun, the second the moon. Some scholars naturally see here an eclipse-myth.
41. In the third line many editors omit the comma after “sun,” and put one after “soon,” making the two lines run: “Dark grows the sun | in summer soon, / Mighty storms—” etc. Either phenomenon in summer would be sufficiently striking.
42. In the Hauksbokversion stanzas 42 and 43 stand between stanzas 44 and 38. Eggther: this giant, who seems to be the watchman of the giants, as Heimdall is that of the gods and Surt of the dwellers in the fire-world, is not mentioned elsewhere in [19]the poems. Fjalar, the cock whose crowing wakes the giants for the final struggle.
43. Gollinkambi(“Gold-Comb”): the cock who wakes the gods and heroes, as Fjalar does the giants. The rust-redbird: the name of this bird, who wakes the people of Hel’s domain, is nowhere stated.
44. This is a refrain-stanza. In Regius it appears in full only at this point, but is repeated in abbreviated form before stanzas 50 and 59. In the Hauksbokversion the full stanza comes first between stanzas 35 and 42, then, in abbreviated form, it occurs four times: before stanzas 45, 50, 55, and 59. In the Hauksbokline 3 runs: “Farther I see | and more can say.” Garm: the dog who guards the gates of Hel’s kingdom; cf. Baldrs Draumar, 2 ff, and Grimnismol, 44. Gnipahellir (“the Cliff-Cave”): the entrance to the world of the dead. The wolf: Fenrir; cf. stanza 39 and note.
45. From this point on through stanza 57 the poem is quoted by Snorri, stanza 49 alone being omitted. There has been much discussion as to the status of stanza 45. Lines 4 and 5 look like an interpolation. After line 5 the Hauksbokhas a line running: “The world resounds, | the witch is flying.” Editors have arranged these seven lines in various ways, with lacunæ freely indicated. Sisters’ sons: in all Germanic countries the relations between uncle and nephew were felt to be particularly close. [20]
46. Regius combines the first three lines of this stanza with lines 3, 2, and 1 of stanza 47 as a single stanza. Line 4, not found in Regius, is introduced from the Hauksbokversion, where it follows line 2 of stanza 47. The sons ofMim: the spirits of the water. On Mim (or Mimir) cf. stanza 27 and note. Gjallarhorn: the “Shrieking Horn” with
