Maritime Zones II: Contiguous Zone, International Straits & Archipelagic States

Class Administration and Context

• Lecturer recovering from dental surgery (“squirrel look”); may shorten lecture.

• Facebook page link for the course posted on Nuku; reminder to send announcement.

• Textbook now accessible through library database; process changed.

• Upcoming quiz release promised.

Road-Map of Today’s Lecture

1. Finish Contiguous Zone

2. Cover International Straits (core of the session)

3. Introduce Archipelagic States

4. (Deferred) Start Exclusive Economic Zone (EEZ) on Friday

Contiguous Zone (CZ)

Core Treaty Provision

• Single article: Article 33 UNCLOS

• Exists largely to codify customary international law that pre-dated UNCLOS, providing a specific treaty basis for powers states were already exercising.

Spatial Extent

• Begins at the outer limit of the Territorial Sea (TS) ($12\ \text{NM}$) and extends a further $12\ \text{NM}$ offshore, making its total reach from $12$ to $24\ \text{NM}$ from the baseline. This means the CZ extends precisely from the $12\ \text{NM}$ mark up to the $24\ \text{NM}$ mark from the baseline.

• May overlap geographically with a state’s EEZ, but the jurisdictional rights are distinct and not to be confused.

Functional Jurisdiction – Four Heads

A coastal state may exercise enforcement (not full sovereignty or legislative power) necessary to:

1. Prevent violation of its customs laws & regulations, targeting smuggling or illegal import/export activities.

2. Enforce fiscal (tax/duty) regulations, to prevent evasion of tariffs or taxes on goods destined for its territory.

3. Enforce immigration laws, to prevent unauthorized entry of people onto its land territory.

4. Enforce sanitary laws (health/quarantine), to prevent the spread of diseases or pests that could threaten public health within its territory.

These four functional areas are specifically chosen because they often involve activities that could directly impact the coastal state's security, economic well-being, or public health, without extending to full territorial sovereignty.

Pirates, Marines & Sovereign Immunity – The “Enrica Lexie” Incident (≈2012)

• Context: Occurred during the height of Indian-Ocean piracy scare, leading to heightened security measures on commercial vessels.

• Facts: An Italian-flagged tanker with two Italian marines acting as a Vessel Protection Detachment (VPD) mis-identified Indian fishermen (operating approx. $14–20\ \text{NM}$ off India's coast, within its CZ but outside its TS) as pirates. The marines opened fire, resulting in two deaths of Indian fishermen.

• Indian response: The vessel voluntarily entered an Indian port. The marines were arrested for murder, indicating India's assertion of criminal jurisdiction.

• Legal Issues:

  • Did India have jurisdiction, particularly criminal jurisdiction, in the CZ for this incident?

  • Supreme Court of India claimed sovereignty up to $24\ \text{NM}$ – this was legally incorrect, as the CZ provides only limited functional jurisdiction, not full sovereignty or inherent criminal jurisdiction under UNCLOS Article 33.

  • UNCLOS: Article 33 explicitly limits coastal state powers in the CZ to enforcement related to customs, fiscal, immigration, and sanitary laws. Criminal jurisdiction for such an incident is absent from these enumerated powers.

  • Italy initiated Annex VII arbitration against India under UNCLOS, seeking provisional measures at the International Tribunal for the Law of the Sea (ITLOS) to obtain the return of the marines.

• Award: The Annex VII Arbitral Tribunal ultimately held that Italy was entitled to sovereign-immunity defence for its marines (as they were members of the armed forces acting in an official capacity); therefore, India could not try them. The Master of the vessel was not compelled to go to an Indian port; however, once the vessel was voluntarily in port, India could investigate the vessel but had to release the marines.

International Straits

Spelling!

• “Straits” (no gh; plural of strait). This commonly misspelled word refers to a narrow passage of water connecting two larger bodies of water.

Definition (customary + UNCLOS)

• A narrow gap of water between two landmasses connecting two parts of the High Seas or Exclusive Economic Zone (EEZ) that is used, or has historically been used, for international navigation. The purpose of international navigation is key, implying its use by ships of various nations as a route between two areas of open ocean where high seas freedoms prevail.

Historical Foundations

The Corfu Channel Case (UK v. Albania) – PCIJ/ICJ 1949

• Scenario: British warships were transiting the Corfu Channel (a strait between Albania and the island of Corfu/Greek waters) in peacetime (post-WWII, 1946). The ships struck mines, resulting in casualties and damage. Months later, the UK re-entered the channel to sweep for mines without Albania's consent.

• Holdings:

  1. Right of innocent passage (IP) for warships through international straits in peacetime. This was a significant affirmation that even military vessels had a right of passage without prior authorization in such crucial waterways.

  2. Albania, knowing of the presence of mines in its territorial waters, had a duty to notify international shipping of the danger. This underscores the coastal state's responsibilities alongside its rights.

  3. The Corfu Channel qualified as an international strait despite the existence of an alternative, longer outer route. The International Court of Justice (ICJ) held that the volume of traffic was irrelevant; mere historical use by international navigation was sufficient to designate it as an international strait.

  4. Albania could not suspend innocent passage through the strait despite regional political tensions, emphasizing the non-suspendable nature of such passage in international straits.

  5. The UK exceeded their right of innocent passage by re-entering the channel to sweep mines without Albania's consent; this was deemed an enforcement action inconsistent with the nature of innocent passage.

• Legacy: This case formed the customary bedrock for Part III of the UNCLOS, heavily influencing the development of the convention's provisions on international straits and establishing key principles of navigation.

UNCLOS Part III – Two Special Regimes

UNCLOS Part III establishes two special legal regimes for navigation through international straits, reflecting a balance between coastal state security interests and the needs of international commerce and navigation:

1. Transit Passage (TP) – Arts $37–44$. This is the primary regime for most major international straits.

2. Non-Suspendable Innocent Passage (NSIP) – Art $45(1)(b)$. This applies to a more limited set of straits.

If a strait does not meet the conditions for either Transit Passage or Non-Suspendable Innocent Passage, the default Innocent Passage (IP) regime under Territorial-Sea rules (Arts 17-32) applies. Unlike TP and NSIP, ordinary IP can be temporarily suspended by the coastal state under certain conditions (Art $25(3)$).

Decision Tree (simplified)

To determine the applicable regime for a strait, follow this simplified decision tree:

1. Is the strait wider than $24\ \text{NM}$ and does it contain a high-seas/EEZ corridor? ➔ If YES, Ordinary Innocent Passage (IP) applies, as vessels can navigate through the high seas/EEZ corridor beyond the territorial sea.

2. If the strait is < $24\ \text{NM}$ wide (meaning it is entirely within the territorial waters of one or more coastal states):

   a. Is there a similarly convenient alternative route around an adjacent island outside the strait that is of similar navigational utility?

   • If YES ➔ Non-Suspendable Innocent Passage (NSIP) applies (Art $45(1)(b)$), as the alternative route reduces the strait's criticality for international navigation.
   
   • If NO ➔ Proceed to the next test.

   b. Does the strait lead only to a “dead-end” State or its TS/EEZ (i.e., it does not connect two parts of the high seas or EEZ)?

   • If YES ➔ Non-Suspendable Innocent Passage (NSIP) applies (Art $45(1)(a)$), as its primary function isn't through-transit to another area of high seas/EEZ.
   
   • If NO ➔ Transit Passage (TP) applies, as it is a crucial route for continuous and expeditious international navigation.

Content of Transit Passage

• Uninterrupted, continuous, expeditious navigation/overflight solely for transit. This implies a right to proceed without delay or undue hindrance, and the activity must be purely for the purpose of traversing the strait.

• Normal modes allowed: Unlike innocent passage, submarines may remain submerged during transit passage, reflecting the operational needs of naval vessels and the intent to facilitate rapid transit.

• Vessels and aircraft must comply with:

  • Generally accepted international regulations, such as COLREGS (International Regulations for Preventing Collisions at Sea), MARPOL (International Convention for the Prevention of Pollution from Ships), and other safety and environmental standards.

  • Coastal-state laws on safety of navigation and pollution control, but these laws are limited to giving effect to internationally accepted rules and standards. Coastal states cannot impose arbitrary or overly restrictive laws that would impede transit passage.

• No suspension permitted by coastal state: Unlike ordinary innocent passage, transit passage cannot be suspended by the coastal state for any reason.

Key Differences: TP vs. IP

Practical Case Studies

Strait of Hormuz

• Graphic shown: Historically, even when coastal states claimed only $3\ \text{NM}$ Territorial Seas, a high-seas corridor was preserved in the middle of the Strait of Hormuz. However, once coastal states (Iran and Oman) expanded their territorial sea claims to $12\ \text{NM}$ under UNCLOS, this high-seas corridor vanished, making the entire strait territorial waters. This scenario was a primary impetus for the development of a robust and non-suspendable Transit Passage regime, ensuring continued freedom of navigation through this critically strategic chokepoint for oil transport.

Cook Strait (NZ)

• Width < $24\ \text{NM}$: The Cook Strait is entirely within New Zealand's territorial sea.

• Debate: A key debate concerns whether the outer detour routes (north of the North Island or south of the South Island) are “similarly convenient” alternative routes. If so, NSIP would apply; if not, TP would. The length and often rough weather of the alternative routes are significant factors.

• Lecturer’s view: Based on heavy through-traffic and the significant time/distance implications of a detour, the lecturer considers it an International Strait where Transit Passage should apply. A counter-argument, often preferred by NZ Navy lawyers, is for Innocent Passage to maximize coastal-state control, particularly for environmental protection and national security.

Northwest Passage (Canada)

• Canada asserts these waters = internal waters (arguing historic title and the ice-covered nature of the waters), wanting stringent control primarily for environmental protection after incidents like the Exxon Valdez oil spill revealed vulnerabilities in Arctic ecosystems.

• US & others: With accelerating Arctic ice melt due to climate change, the route is becoming increasingly navigable. The US and other maritime nations argue that it is now an international strait under UNCLOS, and therefore Transit Passage should apply, guaranteeing freedom of navigation.

• This issue remains unresolved and has huge geopolitical, economic, and climate-change implications, as the passage could significantly shorten shipping routes between the Atlantic and Pacific oceans.

Torres Strait (Australia–PNG)

• Complex, shallow, environmentally sensitive: The strait has an average depth of approximately $13\ \text{m}$ in parts, making navigation challenging, especially for large vessels. It is also an environmentally sensitive area, home to unique marine ecosystems.

• Australia instituted compulsory pilotage: Despite the general right of Transit Passage, Australia (with IMO designation of the area as a Particularly Sensitive Sea Area, PSSA) instituted compulsory pilotage for certain vessels. This measure is for safety of navigation and environmental protection, rather than for impedance of transit.

• Enforcement: Given the non-suspendable nature of TP, there is typically no physical interdiction for non-compliance with pilotage; instead, a record is kept, which can be used for future port visits (e.g., denying entry or imposing fines), demonstrating a creative balance between navigation rights and coastal state interests.

Gulf of Aden “Dead-End” Example

• If a strait ends in another state’s internal waters/TS and does not lead to an onward high seas or EEZ area, it serves a different navigational purpose. In such a scenario, Non-Suspendable Innocent Passage (NSIP) applies rather than Transit Passage, as its function is not to connect two areas of open ocean via through-transit.

Archipelagic States (Part IV UNCLOS)

Definition

A state wholly comprised of one or more archipelagoes (a group of islands forming a single geographical, economic, and political entity) and may include other islands.

Quantitative Test (Art $47(1)$)

• To qualify as an archipelagic state, the water : land area ratio inside the proposed archipelagic baseline must meet a specific criterion:

  1 < \text{ratio} \le 9 (i.e. greater than $1$:1 but equal to or less than $9$:1).

  This ensures that the state is predominantly water-based but also has sufficient landmass to be coherently defined as an island nation.

Baselines

• An archipelagic state may draw straight Archipelagic Baselines (ABs) joining its outermost islands and drying reefs. These baselines enclose the archipelagic waters, integrating the entire island group into a single unit and asserting sovereignty over the enclosed waters.

Legal Status of Waters

1. Archipelagic Waters (AW) – all waters inside the Archipelagic Baselines.

   • These are not quite “internal waters” nor territorial sea; they are considered sui generis (of their own kind). This means they are fully under the sovereignty of the archipelagic state, but subject to special passageways for international navigation.

   • Right of Innocent Passage for all ships cannot be suspended in designated sea-lanes within these waters, ensuring international movement is not unduly hindered.

2. Sea-Lane Passage (SLP) – An archipelagic state may designate specific sea lanes and air routes through its archipelagic waters and adjacent territorial sea for continuous, expeditious passage (conceptually similar to Transit Passage). If no such sea lanes are designated by the state, then default routes normally used for international navigation apply.

Regulatory Powers

• Coastal states may regulate safety of navigation, marine pollution, fishing activities, customs, fiscal, immigration, and sanitary laws within their archipelagic waters, but they cannot:

  • Hamper or impede the passage of ships or aircraft through designated sea lanes.

  • Require prior authorization for passage (only notification in limited, specific cases such as for submarines or nuclear-powered ships, if domestic law requires it and it's compliant with international law).

Recognised Archipelagic States (examples)

The Bahamas, Fiji, Indonesia (a key example due to its vast size and strategic location), Jamaica, Kiribati, Maldives, Papua New Guinea, Tuvalu, Vanuatu, The Philippines. These states have successfully established their archipelagic straight baselines in accordance with UNCLOS.

Illustrations

• Philippines: The Archipelagic Baselines encompass virtually its entire national waters, consolidating its scattered islands into a single legal maritime entity.

• Fiji: Slides demonstrating the AB polygon clearly illustrate how a large area of water becomes part of the Archipelagic Waters through this process.

Contemporary Controversy – China’s Paracel Islands Claim

• In 2023, China released a map showing what it claims are Archipelagic Baselines around its disputed Paracel Islands in the South China Sea.

• This claim presents two significant UNCLOS breaches:

  1. Not an archipelagic state: The People's Republic of China has a continental mainland and therefore does not meet the