SECOND SESSION SECOND COMMITTEE PROVISIONAL SUMMARY RECORD OF THE ELEVENTH MEETING HELD AT THE PARQUE CENTRAL, CARACAS, ON MONDAY, 22 JULY 1974, AT 12 NOON

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82S00697R000300040010-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 12, 2016
• Document Release Date: March 19, 2002
• Sequence Number: 10
• Publication Date: July 26, 1974
• Content Type: MIN

1.
"\\
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
UNITED NATIONS
THIRD CONFERENCE
ON THE LAW OF THE SEA
PROVISIONAL
For participants only
A/CONF. 62/C . 2/SR.11
26 July 1974
ENGLISH
ORIGINAL: FRENCH
Second Session
SECOND COMMITTEE
PROVISIONAL SUMMARY RECORD OF THE ELEVENTH MEETING
Held at the Parque Central, Caracas,
on Monday, 22 July 1974, at 12 noon
Chairman: Mr. AGUILAR Venezuela
Rapporteur: Mr. NANDAN Fiji
CONTENTS
Straits used for international navigation
Corrections to this record should be submitted in one of the four working
languages (English, French, Russian or Spanish), preferably in the same language as
the text to which they refer. Corrections should be sent in quadruplicate within five
working days to the Chief, Documents Control, Room 9, Nivel Lecuna, Edificio Anauco,
and also incorporated in one copy of the record.
AS THIS RECORD WAS DISTRIBUTED ON 26 JULY 1974, THE TIME-LIMIT FOR CORRECTIONS WILL
BE 2 AUGUST 1974.
The co-operation of participants in strictly observing this time-limit would be
eat1y appreciated.
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
A/colar. 6L, 2/.Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
English
Page 2
STRAITS USED FOR INTERNATIONAL NAVIGATION (-/9021, A/CONF.62/C.2/L.3 and
A/CONF.62/C.2/1,.11)
Mr. LACLETA (Spain) Pointed out that his delegation was one of the co-sponsors
of AJAC.138/SC.II/L.18 which dealt, inter alia, with straits used for international
navigation, and that item 4.1 of the Committee's programme of work (Innocent passage)
was closely related to item 2.4 (Innocent passage in the territorial sea). Under
item 4.1 the Committee would consider how the principles examined during consideration
of item 2.4 would apply to particular situations. To this end the amended text of
informal working paper No. I submitted by the Chairman, should be available since the
Committee could not consider particular cases without an over-all view of the question.
The CHAIRMAN said that he would consult the officers of the Committee. to
obtain their views on the amended version of the working paper he had presented, and
that delegations were clearly entitled to refer, in their interventions, to items
related to the matter under consideration, specifically to item 2.4 in this instance.
Mr. KAZEMI (Iren) referred to the earlier statement of the views of his
delegation on the question of straits used for international navigation.in which it had
stressed firstly, that the sovereignty of the coastal State in its territorial sea VAS
subject only to the exercise of the right of innocent passage of ships;- secondly, that
passage through straits used for international navigation must not affect the legal
status of the territorial sea when the straits were situated within the territorial sea
of one or more States; thir:Ily, that rules could be.devised to safeguard transit through
the straits while taking into account the need to protect the security and other
interests of the coastal State.
The Iranian delegation considered that some of the draft articles before the
Committee tended to be prejudicial to the legal status of that part of the territorial
sea which constituted a strait used for international navigation. Moreover,- any
proposed rules regarding passage through those straits should be based on existing rules,
particularly those contained in the 1958 Geneva Convention on the Territorial Sea and
Contiguous Zone. The breadth cf the territorial sea, whether it was three, six or
twelve nautical miles, did not affect the actual passage of ships through the navigable
channels of certain straits. The system for separating traffic developed by IMCO
revealed that the navigable channels of a certain number of straits were located
three nautical miles or even less from the coast. Mr. Kazemi also pointed out that, at
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
Approved ForRelease2002/04/01:UAARDP82S00697RD003000400102
A/CON, . 62/C . 2/13R . 13.
English
?sae 3
ja,L._an)
least in times of peace, coastal States had seldom /vowel restrictions on transit
through straits used for international navigation.
In the light of the foregoing considerations, the Iranian delegation considered
that any draft articles concerning straits should take into account the nature and
scope of the coastal Stetets sovereignty over its territorial sea and should. not
Prejudice its security and good order however, while certain exceptions to the
sovereignty of the coastal State-might be envisaged in the. interest of international
trade and communication, the draft articlet shoed in no way alter the status of the
territorial sea encompassing the straits.
Mk! ?MOO (Denmark) pointed out that Denmark, as a gea2abriu4 nation with
international, straits within its territorial waters, was concerned with the rules
applicable to international straits. The existing rules governing innocent passage
through the territorial sea which were codified in the Convention on the Territorial
Baa and Contiguous Ione were the result of a delicate balance between the different
:L. interests of the coastal. State end international navigation. In the case orettaits,
the interests of international navigation were even more protected than in other parts
of the territorial sea. Consequently, there was no need to revise the present regime
of innocent passage through international straits.
A general agreement establishing a maximum limit of 12 miles for the territorial
see Would result in the creation of a largo number of new straits. .Several delegations
had pointed out that there was no justification for restricting navigation through and
overflight over vital straite that /led, long been considered as high seas. In the case
: of "new" straits up to a breadth or 24 miles there might be a need for a new AglMe of
free transit passage, in order to take due account of the interests of coastal States,
particularly with respect to security and protection against pollution. On the other
hand, his delegation failed to see the need to modify tbe rules of innocent passage
through straits less than nix s$3.eawl4e, where the right of free passage and
overflight had never existed. On the contrary, it could he argued that the increased
else and speea of ships an well as the increased traffic in, straits justified giving
increased consideration to the interest of the celesta State.
With regard to the present regime of innocent passage, Denmark, as a seafaring
nation, considered it leportatt that the 1.4mosge of ships should not be subject to
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
Page 4
(Mr. Fergo, Denmark)
arbitrary restrictions on the part of the coastal States; since the Geneva Convention
was not sufficiently clear in this respect, the Danish delegation had submitted,
jointly with the Finnish delegation, draft articles aimed at defining the concept of
innocent passage.
;le also stressed that some straits, such as the Danish straits leading to
the Baltic Sea, had never been subject to the right of free passage but had been under
a special regime serving the interests of the coastal State and the international
community; such a type of arrangement should remain in effect.
-
Turning to the draft articles submitted by the United Kingdom (A/C0NF.62/C.2/L.3
Ile stated that chapter three, article 1, did not reflect the obvious difference
between straits up to a breadth of 24 miles and other straits where navigation took
place a few miles from the coast, because of the narrow breadth of such straits. The
amendment submitted by Denmark and Finland (A/C0NF.62/C.2/L.15) could therefore be
considered as a variant of the United Kingdom text. 11.1_51ap,0144.)11,80. tluwk,it gAt_be
wiser to deal elsewhere with the question of overflielt.gEltraite.
-
The Danish delegation also believed that the wording of chapter three, article 10,
'required some clarification. It preferred the wording of article 1, paragraph 3 (e)
of A/CONF.62/C.2/L.11. With these reservations and since the proposed regime for
transit passage set forth in A/CONF.62/C.2/L.3 was limited to straits of a certain
breadth, the Danish delegation considered the draft articles submitted by the
United Kingdom acceptable. With reference to document A/CONF.62/C.2/1,.11 which stated
in article 1, paragraph 2 (f) that the "coastal State shall not place in the straits
any installations which could interfere with or hinder the transit of ships", he
pointed out that Denmark had geographically the character of an island country, the
main island being separated from the other main parts of the country, as well as from
their neighbour Sweden, by narrow international straits. It was of vital social and
economic importance for Denmark and its neighbouring countries to be able to build
bridges or tunnels across those straits, and the Danish Parliament had already taken a
decision in principle to that effect. Existing plans took full account of the delegation
not to hinder the free passage of ships in transit. His delegation hoped that the
reference in article 1, paragraph 2 (f) to the Placement of installations in straits did
not modify the right of coastal States to build traffic links of the nature referred to,
on the understanding that transit through the straits would be able to continue
unhampered.
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
A/CONF.62/C.2/SR.11
English
Page 5
Mr. MANNER (Finland) said that the proposals concerning straits used for
international navigation stemmed from a concern that the approval and application of a
new rule on the maximum breadth of 12 nautical miles for the territorial sea, and the
consequent extension of the territorial waters of the coastal States, could, in some
instances, lead to a change in the prerequisites for international navigation previously
based upon the principle of freedom of the high seas. Finland, a maritime nation whose
econemy was essentially dependent on freedom of internationaii, navigation, shared that
concern and was ready in principle to support such proposals. However, its final .
attitude would depend upon whether his delegation's comments were taken into account.
The proposals under consideration concerned straits used for international
nevigation between one part of the high seas and another. How should the expression
used for international navigation ? be interpreted? It would seem that the proposals
applied only to straits in which freedom of navigation had previously been based on
t'ee principle of the freedom of the high seas. However, his delegation doubted whether
the' expression in itself would be enough to restrict the application of the proposed
provision:: to those inetances her passage through the strait had earlier been based
upon he prinei2e.e of freedom of the seas. If such doubts were justified, it should
se noted tht none of the texts submitted so far made an express exception for
eircumetencee wLene t7_e breadth of the territorial waters in a strait connecting two
'par ee of the high seas would remain nneaaneed, in spite of the new provisions, and
the prerequisites for transit passage would thus also remain unchanged. Such was
the ease especially with regard to straits within or leadinq, to enclosed sea areas, and
ileinle either co-Tletely within the territory of one coastal State, or passing through
L-
territorial seas cf States u7nieh already bordered on each other. If no special
re,es hnn been agreed upon, the provisions concerning innocent passage were applicable
end ecald be applied also in the future. The situation had not changed and therefore
t:nere was no reason to require the opening of such a strait to free passage, in other
words to place the strait under the regime of the high seas as far as navigation was
ocncerned. If that vere due purely to an oversight, it could easily be corrected by
adding an appropriate pro-rision to that effect.
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
A/CONF.62/C.2/SR.11
77,nglish
Page 6
(:;r. ;:anner, Finlana)
If, however, the intention was to alter the present status of straits the change
in status, which was not indispensable in order to safeguard the interests of merchant
shipping, and was not a consequence of measures taken by the coastal States concerned,
would interfere with the vital interests of those States and disregard their right to
equal treatment. Neither fishing nor other peaceful uses of the high seas required the
proposed change in the status quo of straits traditionally used for international
navigation based on the rules of innocent passage. Particularly in the case of States
pursuing a policy of neutrality, such as Finland any such measure could lead to
unfortunate consequences.
In the view of his delegation it was of utmost importance that the above-mentioned
points of view be duly taken into account in the final drafting of the articles
concerning navigation through international straits. The defects of the proposed
articles were particularly serious id respect of straits which were narrow, and of which
the internal waters constituted a large part. A practical remedy would be to provide
that the minimum breadth of straits in which freedom of passage would apply should be
riautical niles.
Mr. DUDGEON (United Kingdom) said that his delegation regarded chapter 3 of
Document A/CONF.62/C.2/L.11 now under consideration as one of the most important
questions facing the Conference. Acceptance of a territorial sea of 12 miles would
result in a large number of straits forming essential links for international navigation,
both by sea and air, ceasing to have a strip of high seas down the middle. Hence the
need to ensure that unrestricted navigation through those vital links in the world
network of communications should remain available for use by the international community.
His delegation had been gratified by the amount of interest shown in chapter 3 of its
draft. He would like to reply to some very pertinent questions which had been put to it
in the course of informal discussions.
Article 1 set out the concept of transit passage through straits connecting two
parts of the high seas. The concept they had tried to describe corresponded to what
they believed to be the best international practice at that time. They proposed that
ships and aircraft exercising the right of transit passage should not be impeded or
hampered during their passage. At the same time the right was given "solely for the
purpose of continuous and expeditious transit of the strait".
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
Approved For Release 2002/04/01 : CIA-RDP82S00697R0001100014B069/Z.2/SR.11
'
Page 7
(Mr, Dudgeon, United Kingdom)
In the context of the geographical situation to which this right would apply, his
delegation had first and foremost in mind the strait linking one part of the high seas
with another part of the high seas. However, as Particular straits were called by
other names, paragraph 3 of article I stipulated that the article applied to "any strait
or other stretch of water whatever its geographical name".
His delegation also had in mind the situation of the long strait which had more.'
than one country bordering one side of the strait. Assuming a strait which had two ;
countries on the western side, States A and B, and one country on the eastern side,
State C, the United Kingdom draft proposed, firstly, a right of transit should the ship
or-aircraft be going all the way through the strait; secondly, a tight of transit if the
ship or aircraft was proceeding down the first part of the strait between States A and
C with a view to calling at a port or airport of State B. Such was the purpose of the
words or a State bordering a strait" at the end of the second paragraph of article 1.
Paragraph 4 of article 1 concerned two exceptional cases. The first was what
might be described as a broad strait: if the strait was rather more than 24 miles wide
it was unnecessary to provide a special right of transit passage since ships and
aircraft could navigate on the high seas through the strait. The second case was that
of a strait formed by an island lying less than 24 miles off the coast of another State.
There again his delegation saw insufficient justification for according the right of
transit passage between the island and the coast of the State, so long as an equally
suitable high seas route was available.
Article 2 proposed very stringent restrictions upon what ships and aircraft might
do while exercising the right of transit passage. Ships and aircraft must not engage
in any activities other than those which were part of their normal passage. They also
had to comply with generally accepted standards for navigation and safety, thus
providing safeguards for the straits States.
Articles 3 and 4 set out rights in relation to transit passage of States that
bordered on straits used for international navigation. Article 3 recognized the value
of specifying sea-lanes and prescribing traffic separation schemes wherever it was
necessary to promote the safe passage of ships, especially in the light of the volume
of sea traffic passing through the waters of straits. Article 3 proposed that such
traffic separation schemes be approved by IMCO before being brought into operation.
IMCO had, in fact, already approved a scheme of that kind for the straits of Dover,
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
A/CONF.62/C.2/SR.11
English
Page 8
(Mr. Dudgeon, United Kingdom)
which was currently operating, and no State could unilaterally alter the regulations.
Furthermore, article 4 made express provision that any State bordering on a strait
could prescribe laws and regulations in order to give full effect to traffic separation
schemes for navigation in straits as well as to international provisions applicable to
the discharge of oil or other noxious substances into the strait. Foreign ships
exercising the right of transit passage would have to conform with the regulations;
should they fail to comply, the possibility of legal proceedngs would arise in the
case of merchant vessels. In the case of warships and other vessels entitled to
sovereign immunity, paragraph 5 of article 4 stipulated that the flag State was directly
responsible for non-compliance with such laws and regulations on the part of one of its
ships.
With regard to article 8, and in order to clarify the scope of paragraph 1, about
which a number of questions had been posed, the United Kingdom delegation pointed out
that the article concerned three geographical cases: that of a strait used for
international navigation linking a part of the high seas with the territorial sea of a
State; that of a strait lying between an island and the mainland of the coastal State,
where, in accordance with the provisions of paragraph 4 (b) of article 1, the right of
transit passage was not involved and lastly, that of a broad strait through which a
high seas corridor ran down the middle. In those three cases, the United Kingdom
delegation considered that there were no grounds to provide for the right of transit
passage. Instead, it was proposed that the regime of innocent passage as described in
chapter two of the draft should apply. There were, moreover, two exceptional cases
involving, in the first instance, a ship crossing from one side of a strait to the other
and in the second instance, a ship going along part of a strait bordered by a single
State on passage to a port of that State. In those two cases, the United Kingdom
delegation considered that the regime of innocent passage should apply and not that of
transit passage.
The purpose of article 10 was to preserve the effect of the provisions in the
existing international instruments relating to particular straits.
In conclusion, he stated that his delegation had endeavoured to find a middle way
in its draft between the interests of the international community as a whole and the
legitimate concerns of the straits States. He hoped that the explanations that he had
given would enable the Committee to form a better understanding of the effect of the
provisions embodied in the draft proposals.
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040VO4 2/C?P/SR.11
English
Page 9
Mr. de ALWIS (ri Lanka) said that he wished to identify those eletenta that
were common to. the various formulations which had been put forward With regard to straits
and which -should be recognized or included in the articles relating to that question,
whilst at the same time adopting a flexible approach to the controversial elements, since
he cOnsidered.that 'the work of the Committee must essentially. be an exercise in
reconciliation.
The problem of straits forming part of the territorial pea involved finding. an-.
equitable balance between the security and the economic interests of the States bordering
on straitp, and the right of transit 'passage Of ships -which were Of a vital-importapce to
the world economy arid, ? to international peace and security. .In that connexiona. it.wapee
necessary, insteadeof invoking strictly abstract or legal concepts, to attempt to, find
a practical and equitable- solution by adopting a realistic and objective attitude.
Every State bordering on a strait within its territorial sea had a legitimate right
not only to safeguard the vital interests connected with its security, but also to
ensure that no damage resulting from pollution or from some accident affected its marine
environment; and in such an eventuality, it must be provided with adequate compensation
for damage. With regard to pollution, it was gratifying to observe that that issue did
not give rise to any major difficulties of substance. With reference to the effects. of
the passage of vessels on the security interests of the coastal State, his :delegation
considered that a distinction should be made between the passage of merchant vessels and
that ef warships.. As a developing country with an export-import economy, desirous of
increasing its share in an expanding world trade, Sri Lanka supported, the view that it
was in theeinterests?of the world economy that passage of merchant vessels should be
unimpeded except in:circtimstance8 such as force majeure or navigational hazards, and that -
the right to, transit passage should. be recognized for all ships without discrimination
as to flag, point of origin or destination. That involved the continuance of customary
sew-:lanes for security. reasons. The passage of merchant vessels, which should be
presumed tiabe inhocent, must nevertheless be in conformity with the 'coastal State's laws
.and regulations with regard to safeguards against damage to its marine environment 'and.
its security requirements. That legitimate right of international commercial navigation
had not been opposed by coastal States bordering on straits; indeed, they had given
indications that they were inclined to show flexibility on that aspect of navigation.
On the other hand, the question of the passage of merchant vessels gave rise to
divergent views, although they were not necessarily irreconcilalale. The extension of
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2 3 '21
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2
A/C0NF'.62/C. .1.1
Enklish
Page 10
the territorial sea to a breadth of 12 miles was desianed to accommodate the justifiable
concerns of the coaetal States to ensure their national security. A coastal State
bordering on international strait e could not be denied thr safeguards granted to other
coastal States, and its security interests could not be endangered merely because
:traits used for international navigation existed within its territorial waters. It
would be unreasonable to expect the State concerned not to react to the passage along
its coasts of an armada of military vessels which might have hostile intentions towards
it. Sri Lanka, whic) was committed to a nuclear-free zone and to zones of peace,
obviously could not advocate or encourage the passage of foreign warships. Being not
unmindful, however, of current realities, the delegation of Sri Lanka was inclined to
adopt a flexible attitude in that respect, subject to certain safeguards in the
interests of preserving coastal State security. Furthermore, the supporters of free
transit through straits were not unmindful of the legitimate fears of coastal States,..
since they had already suggested certain codes of self-discipline in the exercise of the
right of passage, such as refraining from any acts which might be deemed prejudicial to
the peace, good order or security of a coastal State. Sri Lanka, for its part,
considered that it would not be unreasonable to include in the new regime provisions
providing first, that warships must observe the laws and regulations of the coastal
State applicable to the passage of other ships; secondly, that prior notification of the
passage of any warship, specifying that such passage would take place within
predetermined time-limits without necessarily indicating the actual time of passage,
must be given to the coastal State, which could designate. the sea-lanes to be used;
thirdly, that if a warship failed to comply with the laws and regulations of the coastal:
State, it could be renuired to leave the straits immediatelee along a route to be
designated by the coastal State concerned; and, fourthly, that where more than one
coastal State was involved, those States should be required to co-operate in establishing
a joint administration with a view to avoiding obstacles to transit deriving from a lack
of co-ordination on the part of one of them.
The meeting rose at 12.55 p.m.
Approved For Release 2002/04/01 : CIA-RDP82S00697R000300040010-2