CATEGORIES OF INTERNATIONAL STRAITS

EXCLUDED FROM THE TRANSIT PASSAGE REGIME

UNDER PART III OF THE UNITED NATIONS
CONVENTION ON THE LAW OF THE SEA
Hugo Caminos

T he United Nations Convention on the Law of the Sea (“the Convention”)

recognises several categories of straits used for international navigation which
are exempt from the regime of transit passage. These categories are: (a) straits
regulated by longstanding international conventions; (b) straits through which
there exists a route through the high seas or the exclusive economic zone (EEZ)
of similar convenience; (c) straits formed by an island of the State bordering
the strait and the mainland of the same State where there exists, seaward of
the island, a route of similar convenience through the high seas or an EEZ; and
(d) straits which connect a part of the high seas or EEZ with the territorial sea
of a foreign State.

I. Straits Regulated by Long-standing International Conventions

Article 35(c) creates an exception to the regime of transit passage in Part III,
where “passage is regulated in whole or in part by long-standing international
conventions in force especially relating to such straits”. Although UNCLOS
III proceedings do not include a list of specific straits that qualify for this
exception, the phrase “long-standing” implies that only those conventional
regimes that have been recognised for a long period of time will be considered
as such. Examples of conventional regimes thought to qualify under article
35(c) when the Convention was adopted were the Turkish Straits1 (Dardanelles

1
Convention concerning the Regime of the Straits, signed at Montreux, 20 July 1936, 173
LNTS, 213; 7 Hudson, 386 (1941) (hereinafter Montreux Convention). The Convention

Ndiaye and Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes, 583–592
©2007 Koninklijke Brill NV. ISBN 978 90 04 16156 6. Printed in the Netherlands.
III. The Law of the Sea: Zonal Approach

and Bosphorus) the Danish Straits2 the Strait of Magellan3 and the Aaland

permitted Turkey to refortify the Straits in exchange for guarantees of free transit through
the Straits by foreign vessels, subject to a number of conditions.
2
Treaty for the Redemption of the Sound Dues between Austria, Belgium, France, Britain,
Hannover, the Hansa Towns, Mecklenburg-Schwerin, the Netherlands, Oldenburg, Prusia,
Russia, Sweden-Norway, and Denmark, signed at Copenhagen, 14 March 1857, C. Parry,
116 CTS, 357. The 1857 Convention lifted dues requirements for ships transiting the Straits,
in exchange for a one-time indemnity paid to Denmark for its continued maintenance of
navigational aids. The United States executed a separate bilateral treaty with Denmark
abrogating the Sound Dues for ships flying the United States flag. See Convention for the
Discontinuance of the Sound Dues between Denmark and the United States, signed at
Washington DC, 11 April 1857, 11 Stat., 719, C. Parry, 116 CTS, 465. For a complete
discussion of the straits of the Baltic region, see G. Alexandersson, The Baltic Straits,
Nijhoff, The Hague (1982).
3
Boundary Treaty between the Argentine Republic and Chile, signed at Buenos Aires, 23
July 1881, C. Parry, 159 CTS, 45. Argentina and Chile agreed to neutralise the Straits of
Magellan, place no fortifications along its shores, and open the Strait to shipping of all
nations. Article 10 of the 1984 Treaty of Peace and Friendship between Argentina and
Chile, resolving the Beagle Channel dispute, provides: “The delimitation agreed upon
herein, in no way affects the provisions of the Boundary Treaty of 1881, according to
which the Straits of Magellan are perpetually neutralized and freedom of navigation is
assured to ships of all flags.”
The Republic of Argentina agrees to maintain, at any time and under any circumstances,
the right of ships of all flags to sail freely and unimpeded through the waters under its
jurisdiction to and from the Strait of Magellan”. Treaty of Peace and Friendship between
Argentina and Chile, 29 November 1984, art. 10, reprinted in 4 Law of the Sea Bulletin, 50
(1985), also reprinted in 24 ILM, II (1985). See generally M. Shaw, “The Beagle Channel
Arbitration Award”, 6 Int’l Rel., 415 (1978).
The reaffirmation of the long-standing conventional regime of the 1881 Treaty serves
as evidence of the will of the parties to retain free passage through this important strait
used for international navigation. The regime of transit as it now exists in the Straits of
Magellan seems no different to that guarantee by the 1982 Convention. Although Annex
No. 2 of the Treaty of Peace and Friendship outlines a more restrictive regime than transit
passage (by limiting navigational routes to be used, requiring submarines to navigate on
the surface and show their flags), these restrictions apply only to Argentine and Chilean
vessels navigating between certain ports in the Beagle Channel, in Antarctica and in other
specific territorial waters (Treaty of Peace and Friendship between Argentina and Chile,
id. Annex No. 2, Navigation between the Strait of Magellan and Argentine ports in the
Beagle Channel and vice versa).
“In accordance with international law and the provisions of the draft convention itself,
only the Strait of Magellan meets the qualifications, requirements and conditions to be
considered a strait used for international navigation, the régime of which was established
in the above-mentioned Treaty of 1881. The other water courses under the sovereignty of
Chile form part of its internal waters and its navigation is subject to the régime pertain-
ing to that maritime space.” See 4 Law of the Sea Bulletin, 63 (1985); Statement by the
delegation of Chile dated 7 April 1982, UN Doc. A/CONF. 62/WS/19. Both Argentina
and Chile are parties to the 1982 Convention.

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Straits.4
A number of writers have proposed that the 1904 Declaration between
Great Britain and France,5 which prohibited the erection of fortifications
along the Moroccan coast of the Strait of Gibraltar and guaranteed freedom
of navigation through the Strait, qualifies as a “long-standing international
convention” exempting the Strait of Gibraltar from the straits provisions of the
Convention.6 A similar proposition favouring freedom of navigation through
the Strait of Gibraltar was also advanced by the Soviet and Italian delegations
during the Sea-Bed Committee debates in 19737 Presenting a contrary point of
view, several noted authors maintain that the 1904 Declaration securing “free
passage” was simply an acknowledgment of the need to protect navigational
rights through the Strait of Gibraltar. According to Professor Gonzalez Campos,
the 1904 Declaration had nothing to do with internationalising or neutralising
the shores of the Strait of Gibraltar. Its original intent, he argues, was to protect
British ships, en route to Egypt and India, from hostile French and Spanish forces
located on the Strait’s shores.8 Another Spanish legal commentator, Yturriaga,
explains that the phrase “free passage” in the Declaration was not intended to
suggest a high seas freedom of navigation; its reference, he affirms, was to the
central element of innocent passage through straits.9 Notwithstanding the
diversity of opinion on whether the “long-standing international convention”
exception applies to the Strait of Gibraltar, when Spain signed the Convention,

4
Convention relating to the Non-fortification and Neutralization of the Aaland Islands
(Sweden and Finland), signed at Geneva, 20 October 1921, 9 LNTS, 213; 1 Hudson, 744
(1931). The Convention confirmed the application of the then current international law
within the three-nautical-mile band of sea surrounding the Islands.
5
Declaration between Great Britain and France respecting Egypt and Morocco, 8 April
1904, 24 Hertslet’s, 400-402 (1907).
6
See D.P. O’Connell, International Law, Vol. I, 567, Stevens, London (1970) and C.J. Colombos,
International Law of the Sea, 220, 6th edn, Longman Group, London (1967).
7
See Statement of the Italian delegate on 19 July 1973, and the Soviet delegate on 24 July
1973, UN Doc. A/AC.138/SC.II/SR.66 and 69.
8
J.D. González Campos, “Navegación por el Mar Territorial incluidos los Estrechos”, in
La Actual Revisión del Derecho del Mar: Una Perspectiva Española, Vol. I (1), 395-396,
(1974).
9
“Una tal referencia no implica una libertad de navegación como en el caso de alta mar, sino el
elemento central de la noción de paso inocente en el caso de los estrechos”. See J.A. Yturriaga
Barberan, “Estudio Jurídico del Estrecho de Gibraltar y Consecuencias de la Construcción
de una Obra Fija”, 6 Anuario Hispano-Luso-Americano de Derecho Internacional, 185, 202
(1981). See also by the same author, Straits used for International Navigation: A Spanish
Perspective, 88-91, Nijhoff (1990). Other authors with similar opinions include E. Bruel,
International Straits, Vol. I-II, 156, Sweet and Maxwell, London (1947). R. Baxter, The Law
of International Waterways with Particular Regard to Interoceanic Canals, 335-336, Harvard
University Press, Cambridge (1964).

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no mention was made of the 1904 Declaration or of its interpretation.10 One

interesting point concerning special conventional regimes for straits has to do
with the relationship between regimes not of “long-standing” and the Convention.
An example of such a special regime might be the 1979 Peace Treaty between
Egypt and Israel currently regulating passage through the Strait of Tiran. In
1978, following the Israeli-Egyptian war, the two countries entered into the
“Camp David Framework” which was later incorporated and supplemented by
the 1979 Peace Treaty.11 Article V(2) of the 1979 Peace Treaty, covers navigation
through the Strait of Tiran:
“The Parties consider the Strait of Tiran and the Gulf of Aqaba to
be international waterways open to all nations for unimpeded and
non-suspendible freedom of navigation and over flight. The Parties will
respect each other’s right to navigation and over flight for access to either
country through the Strait of Tiran and the Gulf of Aqaba.”

The special regime established by this article raises three basic questions. First,
does the 1979 Peace Treaty qualify as a “long-standing international conven-
tion”, exempting the Strait of Tiran from the provisions of the Convention? If
not, how long must the period of time be before a conventional regime may
be considered of “long-standing”? Secondly, what is the relationship between
a special conventional regime not of long-standing and the Convention? Can
the 1979 Peace Treaty provisions with regard to passage through the Strait of
Tiran take precedence over article 45(1)(b) of the Convention which calls for the
application of non-suspendible innocent passage, in straits connecting the high
seas or an EEZ with the territorial sea of a foreign State? Thirdly, can a bilateral
conventional regime benefit third parties?
The first question concerning the length of time required before a special
conventional regime may be categorised as one of “long-standing” exempt from
the provisions in Part III of the Convention, is a difficult one for which there is

10
For a complete discussion of the physical dimensions of the Strait of Gibraltar, the defence
interests, the economic and environmental concerns, and the political and legal issues
regarding passage, see S. Truver, The Strait of Gibraltar and the Mediterranean, Sijthoff and
Noordhoff (1980).
11
Art. V(2), of Treaty of Peace between the Arab Republic of Egypt and the State of Israel,
signed at Washington D.C. 26 March 1979, reprinted in 18 ILM, 362-393 (1979). See
also R. Lapidoth-Eschelbacher, The Red Sea and The Gulf of Aden, at 172-183, Nijhoff, The
Hague (1982); see generally A.E. Danseyar, “Legal Status of the Gulf of Aqaba and the
Strait of Tiran: From Customary International Law to the 1979 Egyptian- Israeli Peace
Treaty”, 5 B. C. Int’l & Comp. L. R., 127 (1982); M. El Baradei, “The Egyptian-Israeli Peace
Treaty and Access to the Gulf of Aqaba: A New Legal Régime”, 76 AJIL, 532 (1982);
R. Lapidoth, “The Strait of Tiran, the Gulf of Aqaba, and the 1979 Treaty of Peace between
Egypt and Israel”, 77 AJIL, 84 (1983).

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no hard and fast rule. Suffice it to say that the conventions that article 35(c)
intended to cover date back many years, the most recent being the Montreux
Convention of 1936. To argue that the special regime of passage in the 1979
Peace Treaty constitutes a long-standing conventional regime could be seen as
premature.
The second question concerning the relationship between a special regime
not of long-standing and the Convention is quite interesting. One author has
suggested that since the 1979 Peace Treaty was entered into pursuant to a United
Nations Security Council mandate (resolutions 242 and 338), affirming “the
necessity … [f]or guaranteeing freedom of navigation through international
waterways in the area”, the provisions of the 1979 Peace Treaty are binding on
all Members of the United Nations and override article 45(1)(b) of the Conven-
tion.12 Another author has proposed that:
“with regard to the relation between the general lex lata and the regime of
the Treaty of Peace, it seems to be clear that the latter should supplement
the former and prevail since it is a positive and special law that grants
more liberal rights of passage on a basis of non-discrimination.”13

Professor Treves has correctly concluded that the relationship between the 1979
Peace Treaty and the 1982 Convention must be determined according to article
311(2) of the Convention14 which reads as follows:
“This Convention shall not alter the rights and obligations of States Parties
which arise from other agreements compatible with this Convention and
which do not affect the enjoyment by other States Parties of their rights
or the performance of their obligations under this Convention.”

Therefore, the key issue in determining whether the straits provision in the 1979
Peace Treaty may take precedence over the regime of passage through straits in
the Convention, is whether the two regimes are compatible. The States Parties
to the 1979 Peace Treaty have clearly stated their opinion in this regard. The
Egyptian ratification of the Convention declared:
“The provisions of the 1979 Peace Treaty between Egypt and Israel
concerning passage through the Strait of Tiran and the Gulf of Aqaba
come within the framework of the general regime of waters forming
straits referred to in Part III of the Convention, wherein it is stipulated

12
J.N. Moore, “The Régime of Straits and the Third United Nations Conference on the Law
of the Sea”, 74 AJIL, 77, 113 (1980).
13
R. Lapidoth-Eschelbacher, supra, note 11, at 182.
14
T. Treves, “La Navigation” in R.-J. Dupuy (ed.), Traité du nouveau droit de la mer, 793,
Economica, Paris (1985).

587
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that the general regime shall not affect the legal status of waters forming
straits”.15

Israel, supported by the United States16 stated its position in an “objection” to

the Egyptian declaration:
“[T]he Government of Israel states that the regime of navigation and
overflight, confirmed by the 1979 Treaty of Peace …, being fully com-
patible with the United Nations Convention on the Law of the Sea, the
regime of the Peace Treaty will continue to prevail and to be applicable
to said areas.”17

Clearly, both Egypt and Israel agree that the 1979 Peace Treaty provisions with
regard to passage through the Strait of Tiran are compatible with the regime of
passage through straits in the Convention. Moreover, in that no contradictions
exist between the liberal regime (freedom of navigation) provided for by the
1979 Peace Treaty, and the more restrictive regime (non-suspendible innocent
passage) stipulated by article 45(1)(b) of the Convention, the 1979 Peace Treaty,
as between parties, should take precedence over the 1982 Convention. The differ-
ence, therefore, between those straits regulated by “long-standing international
conventions”, and those regulated by more recent conventional regimes, is that
the former may be incompatible with the provisions of the Convention, while the
latter may not. Consequently, if a convention of long-standing exempt by article
35(c) calls for the application of a more restrictive regime than would be applied
under the Convention, the more restrictive regime would take precedence.18
The Vienna Convention on the Law of Treaties provides the answer to the
third question concerning the rights of third States vis-à-vis special conventional
regimes. Article 36 of the Vienna Convention specifies that third States may

15
UN, Multilateral Treaties, 731, UN Doc. ST/LEG/SeplE/5 (1986).
16
The United States expressed its support of Israel in a Statement by the United States
delegation of 29 January 1982. Quoted in a speech by Professor Shabtai Rosenne at
Montego Bay, 17 UNCLOS III, 84, para. 20. Also printed in 128 Congressional Record, No.
47, 97th Congress, Second Session, Senate, 27 April 1982 at 4089: “The United States
fully supports the continuing applicability and force of freedom of navigation and over
flight for the Strait of Tiran and the Gulf of Aqaba as set out in the Peace Treaty between
Egypt and Israel. In the United States view, the Treaty of Peace is fully compatible with
the Law of the Sea Convention and will continue to prevail. The conclusion of the Law
of the Sea Convention will not affect those provisions in any way.”
17
UN, Multilateral Treaties, supra, note 15, at 742. Usage of the term “objection” is not altogether
clear in that the Israeli statement is not a protest against the Egyptian Declaration.
18
Treves, supra, note 14, at 793.

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enjoy the provisions of a treaty, if the States Parties intend the treaty provision
to accord that right to third parties.19
Here again, the States Parties to the 1979 Peace Treaty have clearly manifested
their intentions to make the Strait of Tiran accessible to international naviga-
tion. Indeed, the first sentence of article V(2) opens the Strait “to all nations for
unimpeded and non-suspendible freedom of navigation and overflight”. To this,
Professor Treves would add that third States enjoy the supplementary rights
afforded by the 1979 Peace Treaty, but not any of its limitations.20
A related point touching upon the relationship between conventional regimes
and the Convention concerns a situation where a special regime is incomplete.
Professors Churchill and Lowe suggest that in such cases the provisions of the
Convention will serve as supplemental law, providing the rules of transit to fill the
gaps. The Montreux Convention of 1936, for example, being the most detailed of
the special conventional regimes, restricts the right of passage to certain classes
of ships, and requires prior notification on that right. These restrictive provisions
continue to apply because of the “long-standing convention” exception of article
35(c) of the Convention. However, in those areas where the Montreux Conven-
tion is silent, as with coastal legislative jurisdiction, the Convention provisions
would supplement the special regime. In such a case, the detailed rules of a
conventional regime of long-standing will coexist with the provisions of the
Convention concerning matters outside the scope of the special regime.21

II. Straits Through Which There Exists a High Seas or an

Exclusive Economic Zone Route of Similar Convenience
Article 36 contains an important limitation on the applicability of the regime
of transit passage. It exempts from Part III of the Convention:
“a strait used for international navigation if there exists through the strait
a route through the high seas or through an exclusive economic zone

19
Article 36 of the 1969 Vienna Convention of the Law of Treaties reads: “A right arises for
a third State from a provision in a treaty if the parties to a treaty intend the provision to
accord that right either to the third State, or to a group of States to which it belongs, or to
all States, and the third State assents thereto. Its assent shall be presumed so long as the
contrary is not indicated, unless the treaty otherwise provides.” 1969 Vienna Convention
on the Law of Treaties, UN Doc. A/CONF.39/27.
20
Treves, supra, note 14, at 793.
21
R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd edn, Manchester University Press,
Manchester (1999).

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of similar convenience with respect to navigational and hydrographical

characteristics.”22

This provision applies when the narrowest width of a strait exceeds the combined
breadth of the territorial sea of the bordering states – usually 24 miles – so that a
continuous band of high seas or EEZ runs through the middle of a strait. If that
corridor is of “similar convenience” as the route passing through the territorial
sea portions of the strait, then the transit passage regime and the non-suspendible
innocent passage provision in article 45(2) of Part III of the Convention would
not apply even though the strait is “used for international navigation”.
Instead, the provisions in articles 58 and 87 of the Convention respecting
freedom of navigation and overflight in the high seas would automatically apply
within the corridor, and passage outside the corridor, through the territorial sea
portions of that strait, would be subject to the provisions of innocent passage
through the territorial sea set forth in Part II of the Convention.
An interesting situation could arise where one of the States bordering a strait
claims a territorial sea of less than 12 miles, forming a very narrow corridor of
high seas or EEZ on one side of the strait, and a complete area of territorial sea
on the other side of the strait. Because such a narrow corridor would presumably
not be “of similar characteristics”, article 36 preserves the regime of transit
passage in the entire strait and avoids the restrictions of the innocent passage
regime otherwise applicable in the territorial sea portions of such a strait.

III. Straits Formed by an Island of the State Bordering the

Strait and the Mainland of the Same State Where There
Exists Seaward of the Island a Route Through the High Seas
or an Exclusive Economic Zone of Similar Convenience
This category of straits, commonly known as the “Messina Exception” or “island
exception”, is found in article 38(1) of the Convention:
“1. In straits referred to in Article 37, all ships and aircraft enjoy the right
of transit passage, which shall not be impeded; except that, if the strait
is formed by an island of a State bordering the strait and its mainland,
transit passage shall not apply if there exists seaward of the island a
route through the high seas or through an exclusive economic zone of

22
Article 36 was originally derived from the 1974 British proposal which was incorporated
into the Main Trends document, and in 1975 became the basis for the Draft Articles of the
Private Group on Straits. See “United Kingdom: Draft Articles on the Territorial Sea and
Straits”, 3 UNCLOS III, Chapter III, Art. 2(4)(a), UN Doc. A/CONF.62/C.2/L.3 (1974).

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similar convenience with respect to navigational and hydrographical

characteristics.”

Although this exception was originally negotiated as a concession to the Italian

delegation and their concerns about the strait between Sicily and the Italian
mainland, it seems that the island exception was included into the draft articles
of the Private Group on Straits with the idea of accommodating the Pemba
Channel (between Pemba island and the Tanzanian mainland).23
Because the island exception in article 38 is phrased in the same terms as
article 36, straits with a high seas or EEZ corridor, the two exceptions may be
interpreted in the same manner; the question of “similar convenience” always
in relation to navigational and hydrographical factors. In this respect, economic,
military or political inconvenience is irrelevant, and user States cannot invoke
transit passage for such reasons. Another significant similarity between the
“island exception” and the “high seas corridor exception” is that, in both types of
straits, the rights of overflight and submerged navigation through the territorial
sea portions of the strait are not recognised.
Unlike the exception in article 36, however, article 38(1) is qualified by
article 45(1)(a), which specifically calls for the application of non-suspendible
innocent passage through a strait formed by an island of a State bordering
the strait. Thus, the right of innocent passage through an article 38(1) strait
cannot be suspended, while the right of innocent passage through an article
36 strait, that is, a strait with a high seas or EEZ corridor, may be suspended for
national security reasons.24 Of course, in both cases all freedoms of navigation

23
See Italian Proposal in the Sea-Bed Committee, Report of the Sea-Bed Committee, 28 UN
GAOR 71, Supp. No. 21 (A/9021), UN Doc. A/AC.138/SC.II/L.30 and Corr. 1, para. (a)
(1973). According to Professor Alexander, there are 22 straits in the world formed by
an island of a State and the mainland where there exists a route through the high seas
or EEZ of similar convenience seaward of the island. See, L.M. Alexander, “Exceptions to
the Transit Passage Régime: Straits with Routes of ‘Similar Convenience’”, 18 Ocean Dev.
& Int’l L., 479 (1987).
24
The incongruous treatment of these two exceptions to the right of transit passage, the
island exception in article 38 and the high seas/EEZ corridor exception in article 36,
seems to have been inadvertent. When the draft articles of the Private Group on Straits
were incorporated into the ISNT (Part II), some rearrangement of the articles occurred
and the chapter on straits was divided into three sections. As a result, those straits with a
similarly convenient high seas or EEZ corridor were moved to a separate article (art. 36)
that was not to be governed by Part III (Part II in the ISNT). The other two exceptions to
transit passage in the draft articles of the Private Group on Straits, the island exception
and straits leading to the territorial sea of a foreign State, were moved to a single article
(art. 45) in section 3, which provided for the regime of non-suspendible innocent passage.
Treves, supra, note 14, at 789.

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and overflight would apply in the high seas or EEZ areas seaward of the island
or through the corridor.
Professor Treves suggests that the “island exception” represents a compromise
which originated in the idea that the regime of transit passage should only
apply to straits used for international navigation, and not to straits of second-
ary importance. Although Treves does not expound on the criteria to be used
in determining the importance of a strait, he seems to imply that straits of
secondary importance are those for which there exists an alternative route of
passage; transit passage being reserved for those straits which provide the only
viable waterway. Examples of straits falling under this exception are the Messina
Strait and the Pemba Channel. The Corfu Channel is not formed by “an island of
a State bordering the strait and its mainland”, because except for a small portion
of the Channel, it is formed by a Greek island and the Albanian mainland. The
fact that there may exist a high seas route or an EEZ route of similar convenience
seaward of the island does not suggest that the island exception automatically
applies. The regime of passage in the Corfu Channel should be one of transit
passage and not that of non-suspendible innocent passage otherwise applied
under the island exception.

IV. Straits Used for International Navigation Between a Part

of the High Seas or Exclusive Economic Zone and the
Territorial Sea of a Foreign State
Finally, article 45(1)(b) of Part III of the Convention specifically applies the
regime of innocent passage in accordance to Part II, section 3, to two types of
straits used for international navigation which are excluded from the applica-
tion of the transit passage provisions. As previously mentioned, these are: the
“island exception” straits of article 38(1) and straits which connect a part of
the high seas or an EEZ and the territorial sea of a foreign State. Article 45(2)
adds the assurance that the right of innocent passage through both types of
straits cannot be suspended.

592