SECOND SESSION SECOND COMMITTEE PROVISIONAL SUMMARY RECORD OF THE FOURTEENTH MEETING HELD AT THE PARQUE CENTRAL, CARACAS, ON TUESDAY, 23 JULY 1974, AT 3.30 P.M.

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82S00697R000300040013-9
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• Document Creation Date: December 12, 2016
• Document Release Date: March 19, 2002
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• Publication Date: July 29, 1974
• Content Type: MIN

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UNITED NATIONS
THIRD CONFERENCE
ON THE LAW OF THE SEA
Second Session
SECOND COMMITTEE
PROVISIONAL SUMMARY RECORD OF THE FOURTEENTH MEETING
I
Held at the Parque Central, Caracas,
on Tuesday, 23 July. 1974, at 3:30 p.m.-.:.
Chairman: . .. Mr. AGUILAR
Rapporteur:
CONTENTS
Mr. NANDAN
Straits.us.ed,for international navigation (continued)
Other matters.
PROVISIONAL
For participants only
A/CONF.62/C.2/SR.14
29 July 1974
ENGLISH
ORIGINAL: SPANISH.
Venezuela
Fiji
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 g adrualicate.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 29 JULY 1974, THE TIPS-LIMIT ,FOR CORRECTIONS
WILL BE 5 AUGUST 1974?
The co-operation of participants in strictly observing this;t we-limit would be
greatly appreciated.
C-5265
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STRAITS USED FOR INTERNATIONAL NAVIGATION (A/CO 9F.62/C.2/L.3, L.11, L.15, L.16 and
L.19; A/AC.138/SC.II/L.4, L.18, L.30 and L.42) continued)
Mr. SULEIMAN (Oman) introduced the drWt articles on navigation through the
territorial sea, including straits used for international :=avigation
(A/CONF.62/C.2/L.16), and reiterated the following basic principles:
(i) Navigation through the territorial sea and through straits used for
international navigation should be dealt with as an entity, since the straits in
question formed part of the territorial sea.
(2) Regulation of navigation through straits should establish a satisfactory
balance between the particular interests of the coastal State and the interests of
international maritime navigation.
(3) The regulation should contribute both to the security of coastal States
and to the safety of international maritime navigation. Those objectives could be
achieved by the reasonable and adequate exercise by the coa.=tal State of its right
to regulate navigation through its territorial sea.
(4) The regulation should take due account of the economic realities and
;cienti-fic and technological developments which have token place in recent years,
and should establish appropriate rules to regulate navigation of certain ships with
special characteristics.
(5) The regulation should, finally, meet the deficiencies of the 1958 Convention,
especially those relating to the passage of warships through the territorial sea,
_ncluding straits.
The draft articles contained in document A/CONF.62/C.2/L.16 were divided into two
parts: part I dealt with innocent passage through the territorial sea and part II
dealt with the right of innocent passage through straits used for international
navigation. Article I on the right of innocent passage reproduced article 14 (1) of
the Geneva Convention on the Territorial Sea and the Contiguous Zone. Article 2
defined passage; paragraph 1 Was the same as article 2 of the Fiji draft, although it
bred been considered necessary to retain the phrase "internal waters" as it had
originally appeared in article 114 (2) of the Geneva Convention. Paragraph 3 had been
taken from article 3 (2) of the eight-Power draft.
Article 3 (2) was a modification of draft article 16 (2) of the United Kingdom
draft articles (A/CONF.62/C.2/L.3) with t-.e words "such as" introduced to indicate
that the list of activities was not exhaustive.
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(Mr. Suleiman, Oman)
The duties of the coastal States were enumerated in article 4, whereas article 5
dealt with the rights of coastal States.
Article 6 dealt with the regulation of international navigation in accordance
with the rules of international law.
Article '8 dealt with the navigation of ships with special characteristics. It
should be noted that no prior notification was required under the article for the
passage of oil tankers and chemical tankers.
Merchant ships were given special treatment under article 10.
Article 13 dealt with government ships operated for commercial purposes, whereas
article 14 concerned government ships operated for non-commercial purposes. Under
article 15 (3) the coastal State could require prior notification to or authorization
by its competent authorities for the passage of foreign warships through its
territorial sea.
Part II of the draft articles (A/CONF.62/C.2/L.16) dealt with the right of
innocent passage through straits used for international navigation. Article 20
covered the straits as defined in the Corfu Channel Case and therefore did not apply
to straits which historically had not been used for international. navigation.
Article 22, which dealt with special duties of coastal States, contained an important
innovation in that it established the rule that passage of foreign merchant ships
through straits should be presumed to be innocent. That presumption of innocent.
passage was a new idea which was justified by the recognition that merchant ships
performed an internaticnal duty to mankind and an important role in international
trade, which was an instrument for development.
Mr. CHAO (Singapore) said: that the question of international navigation
through straits was important to his country first because Singapore depended to a
large extent on international:trade and the maintenance of the free flow of traffic
through the straits was therefore vital to,it, and secondly for reasons of its
geographical situation, since it was locked in on all.sides by the territorial waters
of its neighbouring States and its only access to the high seas was. through the
straits.
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(Mr. ChaQ,. Singapore)
The Committee had before it three sets of draft articles- the eight-Power draft
(A/AC.138/SC.II/L.18), the Fiji draft (A/AC.l38/,SC.II/L.42) and the more recent
United Kingdom draft articles (A/CONF.62/C.2/L.3). There were basic differences of
approach among the three drafts. The eight-Power proposal was based on the fact that
navigation through the territorial sea and through straits used for international
navigation should be dealt with as a single entity since the straits in question formed
part of the territorial sea. The Fiji proposal only applied to straits indirectly
when, in article 4 (2). it provided that there should be no suspension of the innocent
passage of foreign ships through straits used fqr international navigation.
Straits formed a vital link between different parts of the globe and the
maintenance of that communication was essential for the benefit of the whole
international community. Passage through territorial seas was less vital and for
that reason separate regimes would be set up for the territorial sea and for_atraits.
In any case, what was important in the last analysis was to adopt rules which would
be objective.
Mr. LACLETA Y MUNOZ (Spain) said that all the proposals submitted to the
Committee reflected two different schools of thought with regard to passage through
straits used in international navigation. There were three different points to be
considered in connexion with those proposals: how they would affect the nature of
ocean space, how they would affect the r6gime governing navigation in those waters,
and, lastly, what attitude they indicated towards the fundamental distinction between
merchant ships and warships.
For one group of States, the waters of a strait were no longer, strictly
speaking, part of the territorial sea. Document A/AC.l38/SC.II/L.4 stated that "all
ships and aircraft in transit shall enjoy the same freedom of navigation and
overflight for the purposes of transit through and over such straits as they have on
the high seas". The words "as they have on the high seas" had been dropped from the
text in document A/CONF.62/C.2/L.ll, but a careful perusal of article 5., paragraph 2,
showed that the freedom it referred to was the same as the freedom of the high seas.
On the other hand, the draft submitted by Fiji (A/AC.l38/SC-11/L.42) and the_
eight-Power draft (A/AC.I38/SC.II/L.18), like the draft recently submitted by Oman
(A/CONF.62/C.2/L.16) rightly included the question of straits under the same heading
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(Mr. Lacleta y Mufioz, Spain)
as in General Assembl? resolution 2750 (XXV), i.e., that of the r6gime of territorial
sea. Although the straits might be used for international navigation, they formed
"part of the territorial sea of one or more States", as stated so well by Oman in
article 20 of the..draft articles it had submitted.
The Spanish delegation had clearly stated its position that the sovereignty of
a coastal State extended to straits forming part of its territorial sea, whether or
not they were used for international navigation (A/CONF.62/C.2/L.6).
As to the effects of the proposals on the regime governing navigation through
straits, the proposals in documents A/CONF.62/C.2/L.3, L.11 and.L.15, like those in
documents A/AC.138/SC.II/L.4 and L.30, used the same formula: freedom of navigation for
all ships and freedom of overflight for. all aircraft. Their real aim was to establish
the same;f'reedom for navigation through straits as for navigation on the high seas, a
freedom that had already been recognized.. Certain countries were trying to get the
Conference to reduce the breadth of the territorial sea to three miles in certain sea
areas, i.e., the straits of other States.
The second school of thought was reflected in'documents A/AC.138/SC.II/L.18 and
A/CONF.62/C.2/L.16, which referred to. the r6gime of navigation through straits as a
"right of innocent passage".. That regime achieved a balance between.the.interests of
the coastal State-and the.legitimate interests of international navigation. Document
A/CONF.62/C.2/L.16 clearly defined innocent passage and the powers of the, coastal
State with regard to it. That was a well-balanced proposal which harmonized the
rights and. duties of all the parties concerned, and it was a suitable basis for
negotiation.
As to the distinction between merchant ships and warships, he pointed out that
the navigation of merchant ships through straits.?must be guaranteed. and facilitated
as they were the carrier's of trade and the means of peaceful international
co-operation; but it was different with warships, whose mere passage through.waters
under foreign sovereignty implied a potential threat to the coastal State.
Documents A/CONF.62/C.2/L.3, L.11 and L.15, like..documents A/AC.138/SC.II/L.4 and
L.30, made no distinction between merchant ships and warships, and there was one very
significant element in all those texts,: the provision that submarines should navigate
on the surface and show their flag had been dropped. It would seem then that the aim
was to allow submarines to pass through the ocean space under the sovereignty of
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(Mr. Lacleta y Vui oz Spain )
another State without that State's knowledge. Those proposals also had another
c>aracteristic in common, namely, they provided for freedom of overflight in transit
for all types of aircraft whether civil or military over the straits. That would be
tantamount to amending, the Chicago Convention of 1944, which required prior
authorization of the State concerned for the overflight by military aircraft of its
territorial sea, of which straits formed a part.
The regime of innocent passage applied strictly to navigation on the surface, and
had nothing to do with the secret passage of submerged vessels or overflight. The
eight-Power draft, like-document P/CONF.62/C.2/L.16, was very clear on those two points.
In addition, the passage of warships was regulated by rules which, while allowing the
right of passage, safeguarded the rights of the coastal State by requiring that the
passage should be innocent and empowering the State concerned to require prior
notification or authorization.
Mr. McLOthmLIN (Fiji) said that in the light of the many helpful comments
that had been made on the draft articles his delegation had submitted to the Sea-Bed
Committee (A/AC.138/SC.II/L.42) and of the proposals of other delegations, Fiji had
felt it was necessary to submit a revised draft, which was to be found in document
A/CONF.62/C.2/L.19? Without prejudice to any ultimate decision that might be adopted
with regard to the r?gime of r6gimes applicable to the passage of foreign ships througt
straits, the draft articles were concerned with the concept of innocent passage both
through the territorial sea and through straits. Consequently, if the regime of
passage through the territorial sea proposed by his delegation was not accepted, the
same rules should be included in the regime of regimes applicable to straits.
The basic principles laid down in the original draft had been retained, but with
slight modifications. For instance, prevention of infringement of the fisheries
regulations of the coastal State was provided for in article 5. Similarly, the right
of the coastal State to control fishery activities in its own waters and to take
measures to prevent pollution under the 1973 convention on the prevention of pollution
from ships was established. The new draft articles gave a clearer definition of the
powers of the coastal States and they did not expressly include questions that were
already included in other proposals.
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Mr. NAJAR (Israel, said that in view of the Committee's decision to close the
debate on the topics of innocent passage and freedom of navigation and overflight, his
delegation would have to consider those matters together with the item under
consideration.
He reiterated his delegation's position as expressed in the plenary Conference
that any limitation of innocent passage through territorial sea would be
counter-productive. The tendency to limit freedom of navigation, however understandable
it might be historically, should not act as a barrier to the rapid development of
maritime traffic or to the growing economic and technological interdependence of
States.
Without any intention of disregarding the legitimate interests and rights of the
coastal States, of which his country was one, freedom of navigation and overflight
in all straits that linked two parts of the high sea or the high sea with the
territorial sea of a State must be reaffirmed. His delegation had listened with great
attention to the classification of transit passage proposed by the delegation of the
United Kingdom. That classification was more empirical than normative and should be
even more general so as to ensure wider acceptance,.
His delegation could not, however, accept the regime proposed in article 8 of
the United Kingdom draft articles (A/CONF.62/C.2/L.3) for straits linking the high
sea with the territorial sea of a foreign State, because it considered the regime
unjustified.
Unfortunately, the proposals in documents A/CONF.62/C.2/L.3 and L.11 did not
reflect the concern that had been expressed over the issues of the exploitation of the
sea-bed and of the land-locked or geographically disadvantaged countries.; they even
introduced an element of discrimination by ignoring the principle of equality of
treatment of straits linking two parts of the high sea or the high .sea with the
territorial sea of a State.
The right of freedom of navigation through straits should be reaffirmed, taking
into account the position of the land-locked or geographically disadvantaged countries
as laid down in the Kampala Declaration and mentioned by the delegation of the Soviet
Union and also that of States whose territorial sea was linked to the high sea only
through a strait.
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Mr. ?. SLOuB (Algeria) said that his country had mobilized all its resources
to ensure the well-being of its people, to which end it was necessary to promote and
develop broad international co-operation based on equality, respect and mutual benefit.
Algeria was a geographically disadvantaged country and, what was more, its access
to the oceans was exclusively through straits. As a developing country bordering on a
semi-enclosed sea and practically taithout resources, it should logically be subject to
a special regime affording access to the oceans. That right of free transit should be
similar to the right whose recognition was sought for th& land-locked countries, because
there would be no sense in recognizing the rights of geographically disadvantaged
countries to the living resources of neighbouring economic zones if those countries were
simultaneously denied the means enabling them to enjoy those rights.
With those considerations in mind;'his ?elegation had felt it should prepare'-some
draft articles (A/CO.YF.62/-C.2/L.20) which, although they could be improved, would help
the Conference to find a solution that-was just and therefore acceptable to all States.
It should-be noted above all that the draft articles had been drawn up in a special
context, that of semi-enclosed seas like the Mediterranean, 'and would apply to only one
type of straits, those joining two parts of the'higri see and used traditionally -for
international navigation. They thus exclu-ed the`-cstegory of straits that linked the
territorial see. of a State with the hiih sea.
A distinction was made between the regime of passage for merchant and similar
vessels and warships and similar vessels. For the former, the regime of free transit
should apply when they were travelling-to and from ports in certain countries, like
Algeria, for which the strait was the only passage. Naturally, recognition in that
Particular. context of the right of free transit without any hindrance or restriction
impled observance of certain rules intended to proteote'shipping.
We :hips and similar vessels passing through those straits should be subject' tc3'
the regime of innocent pnssagc since a sovereign State had the right'to safeguard its
legitimate sect:rity interests.
That distinction took care of the interests of the international coniunity, which
were protected by the righ-c of free transit, and straits States'
protected by the concept of innocent passage. It also demonstrated the peaceful-
aspirations of the small Fnd medium-sized countries, whose sole desire was to ensure the
well-being and development of their peoples.
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( 'r pMesloLib, Algeria)
Tip emphasized that the craft articles did not refer to the question of overflight,
because his delegation shared the opinion that the, topic should be dealt with not by
the Conference, but by other existing bodies. He.also stressed that the draft articles
did not question the status of passage through straits that were already the subject,
of international conventions.
His delegation hoped that the proposals contained in document A/CONF.62/C.2/L.20
would be supported by all delegations; it was prepared to co-operate with them to
resolve the crucial problem under discussion.
Mr. PRIETO (Chile) said that his delegation attached great importance to the
question of straits used for international navigation, because that was the topic that
had led the great Powers to submit their first joint project, which led to the
establishment of the enlarged Sea-Bed Committee.
In view of the importance of the issue for the international community, it was
essential to be very strict in defining the legal form in order to avoid any ambiguity
over what was meant by straits used for international navigation.
His delegation had noted that the proposals submitted on item 4 by some delegations
contained no precise definition at all, a fact that it had already pointed out, together
with the delegations of Canada, Norway and France, in the work of the Sea-Bed
Preparatory Committee.
Straits used for international navigation had been defined by international
usage, by international jurisprudence in the April 1949 judgement of the International
Court of Justice on the Corfu Channel Case, and in the 1958 and 1960 Convention on the
Territorial Sea and the Contiguous Zone.
In the Corfu Channel Case the International Court of Justice had defined straits
used for international navigation as straits that were used for international
navigation between one part of the high seas and-another part of the high seas. There
were two very specific elements in that definition, the first being geographical and
the second.the fact that the straits were used-for international navigation and were
traditionally used for international traffic by ships of all countries.
Referring to article 16, paragraph 4 of the Convention on the Territorial Sea and
the Contiguous Zone, he noted that it too contained the two basic elements in the
judgement on the Corfu Charnel Case, namely, the geographical element of linking two
parts of the high seas and the traditional use for international navigation.
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(Mr. Prieto, Chile)
It was therefore essential that the Convention to be drawn up by the Conference
should define what was meant by straits used for international navigation. He suggested
that the working. paper on that question should include a foot-note indicating that
straits used for international navigation referred to straits as defined in the judgement
of the International Court of Justice on the Corfu Channel Case and in article 16,
paragraph 4 of the 1953 and 1960 Conventions on the Territorial Sea and the Contiguous Zone.
The CHAIRMAN said that he took note of the suggestion made by the representative
Mr. OGUNDERE (Nigeria), noting that Nigeria was not a strait State, said that
its interest in the matter under consideration related to the peaceful uses of the sea
by the merchant vessels of P.11 States, including Nigeria, and to the passage of warships
through straits used for international navigation within the territorial sea of a State,
subject to acceptable international legal norms. He agreed with the representatives of
Canada and Chile that the future Convention should contain satisfactory definition of the
expression '-straits used for international navigation .
A few centuries previously, the seas had belonged to two great Powers, Spain and
Portugal, and the oceans of the world and the terra incognita had been divided between
them by papal bulls. Later, those two great Powers had been challenged by other great
.'owers, including Great Britain, France, the Netherlands, Germany and Belgium, which
refused to accept the situation. Since then the super-Powers had displaced the great
Powers in world influence. The first two United Nations Conferences on the Law of the
,ea held at Geneva in 1953 and 1960, had tried in vain to grant coastal States, including
strait States, sovereignty over an area of sea adjacent to their coasts. The Third
Conference on the Law of the Sea must now redress the historical imbalance which had
granted a few States rights and advantages over and above those enjoyed by other States.
It was in the light of that historical background that his delegation had studied
the United Kingdom draft articles contained in chapter three of document A/CONF.62/C.2/L.3,
document A/CONF.62/C.2/L.6 submitted by Spain, and document A/CONF.62/C.2/L.11 submitted
by the socialist countries
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(Mr. Ogundere, Nigeria)
His delegation, like other delegations, drew a sharp distinction between the passage
of merchant vessels through straits which formed part of the territorial sea and the
passage of warships and submarines through those straits. Documents A/CONF.62/C.2/L.3.
and L.ll both postulated freedom of passage similar to the freedom of'the high seas,
referred to as the "'right of transit passage" in document A/CONF.62/C2/L.3' and ae
"freedom of navigation" in ,document A/CONF.62/C.2/L.11.
His delegation agreed'~that all St'etes should enjoy the right of transit passage''or
freedom of navigation through all straits lying outside the territorial watera`of
coastal States and therefore within exclusive economic zones or in'the.high seas,
irrespective. of whether. the breadth of the,.territorial sea was fixed in the Convention
at 12 or 50 nautical miles. As proclaimed in the. Declaration of-the Organization of
African Unity on the issues of the law of the sea, contained in. document A/CONF..62/33,
his delegation attached great importance to, international navigation. through straits..that
formed part of the territorial sea of a .State and, in principle, supported the regime of
innocent passage subject to further clarification concerning the definition of the regime.
He described some of the clarifications which would have to be made in such a
definition. Under article 14, paragraph 6, of the 1958 Convention on the Territorial Sea,
submarines were required to.navigate on,the surface..apd to show their flag while
exercising the right of innocent passage through the territorial sea. Also, under
article 15, the coastal State must not hamper innocent passage through the territorial
sea, and under article 16 tha coastal State could take the necessary steps in. its
territorial sea to prevent.passage which was not-innocent.
.
The draft articles submitted by the United Kingdom and contained in part III of
document A/CONF.62/C.2/L.3 were very useful, although in his view article 16 should end
at paragraph 2 (c). Article 17 of that draft, which contained only paragraph 3 of
article 16 of the Convention on the Territorial Sea and the Contiguous Zone, should include
the other paragraphs of that article, thus-taking fully into. account section III of the
Convention relating to the right of innocent passage.
He agreed that all reference to freedom of overflight should be deleted in
documents A/CONF.62/.C.2/L.3 and L.11.
His.delegation had listened attentively to arguments adduced to link passage through
straits with the national security of.a State or group of States, and felt that the
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concept of State power had changed since the Charter of the United Nations had entered
into force. Referring to Article 2i, paragraph 1, of the Charter, he said that national
security arguments in favour of freedom of passage through straits were untenable in
international law unless they were based on a treaty entered into by the strait States
guaranteeing freedom of navigation through the straits to all States parties to the treaty.
Cne of the positive elements of the proposals submitted by the United Kingdoa'and
by the socialist countries was the provision regarding responsibility of the flag State
for damages caused by ships passing through straits and the territorial sea. He
congratulated the sponsors of both drafts.
Mr. MATI (Albania) said that he supported the principle of the sovereignty of
straits States. States had the sovereign right to establish the regime necessary for
the protection of their interests while, at the same time, they should permit
international navigation without any discrimination whatsoever.
in that connexion, he observed that there were two trends representing two groups of
States. The first group consisted of coastal States which felt threatened by the
expansionist and imperialist policy of the super-Powers and claimed sovereign rights over
their territorial waters, including straits. The second was made up of the two
super-Powers, which had built up considerably their armies, navies and air forces, and
advocated free passage through straits. His country, like all peace-loving countries,
supported the former group of States and would oppose the imperialist policy of the
super-Powers.
Passage through straits should be effected in conformity with the laws of the
?~oastal State, which would issue the appropriate authorization to warships-and military
aircraft. As to merchant vessels, it was unanimously agreed that they should be allowed
to pass through straits without restrictions, but the coastal State could establish any
regulations it deemed necessary to protect itself against threats to its sovereignty
which might result from the use by certain Powers of merchant ships for the purpose of
espionage.
The defence of the sovereignty of the coastal State over the waters of straits was
a matter of principle which, because of the threat posed by the expansionist policy 'of
the super-Powers, involved security matters.
The question of straits not used for international navigation was an internal affair
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Nor.. AL-SABAH (Kuwait) said that he was making the first part of his statement
on behalf of Iraq, the Organization of African Unity, the Libyan Arab Republic, Saudi
Arabia, Qs,ter and Kuwait. The term `straits used for international navigation" should
be strictly confined to straits which connected two parts of the high seas. Because of
that view, the Governments on whose behalf he was-speaking had not adhered to.the:
Convention on the Territorial Sea and the Contiguous Zone of 1958, since they opposed the
interpretation of that concept in article 16, paragraph 4+, of. that Convention which
treated all straits alik,. That provision had been politically motivated by the desire
to accommodate specific interests in a particular region.
Speaking on behalf of his own delegation, he said that the attitude of States
towards the question of straits was largely determined by geographical considerations and
political realities which divided States into three main categories:
(a) States bordering on straits,
(b) Small Powers which had a vital interest in commercial navigation through straits
(c) Great Powers which, in addition to their interests in commercial navigation,
claimed special privileges for warships and military aircraft.
The straits State had a right to security, order and the protection of its coasts against
pollution and other hazards. At the same-time the legitimate right of merchant vessels
of the international community to free-and unimpeded passage through straits used for
international navigation should be recognized.
Innocent passage was currently determined subjectively by the coastal State, which
could decide arbitrarily if passage was prejudicial to peace, order or security.
Objective criteria should be formulated. which would guarantee freedom of transit to-all
merchant vessels, while at the same time safeguarding the basic interests of the coastal
State.
Nevertheless, different criteria should be.,applied to warships and military aircraft
in view of the risk involved in their passage. The concept of prior notification could
serve as a compromise formula.
Special attention should be paid to the problem of States whose only access to the
ocean was through straits. The commercial navigation of those States depended totally
on the concept of freedom of transit. The commercial interests of those geographically
disadvantaged States should be protected. His delegation intended to present a detailed
text relating to the concepts which he had just discussed.
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YANKOV (Bulgari-a) said that since his country faced a semi-closed sea and-
its only access to the oceans was through international straits, it attached great
importance to the ectabli hment of an equitable and viable regime of transit through
straits used for international navigation. The functional approach of the
gust commnr.icationis which had always been followed and which was a fundamental part of
maritime law led to a significant differentiation between the regime of the territorial
sea and tiiat of straits used for international navigation. That differentiation could
not be disregarded on the basis of the contention that those straits were part of the
territorial sea: such reasoning was not necessarily founded on either law or practice.
Conscious of the legitimate rights of the coastal States, Bulgaria and the five
other del.Aations which had sponsored the draft articles circulated in document
A/CONF.62/C.2/L.11 had sought to achieve a fair balance of all interests in a solution
which to a large extent was a departure from the traditional concept of freedom of
the high seas in respect of straits used for international navigation and envisaged a
regime of rerulated free and unimpeded transit. The right of flag States to freedom of
navigation carried explicit counterpart requirements and obligations. For example,
diffnre-it nara'raphs of the draft articles contained provisions stating that warships in
ransit ;h:u not engage in military or other activities; that the coastal State should
2_ I
have the i it to designate sea-lanes and traffic separation schemes; that ships in
transit, in particular supertankers, should take all precautionary measures to avoid
causing pollution of the waters and coasts of the straits; that the shipowner or the
person liable fo.- damage to the coastal State, including in the last resort the flag
:torte, shculd assure responsibility for such damage; that in recognition of its economic
i.ntere^ts the coastal State should have sovereign rights over the waters, sea-bed and
living a:d mirer.1 resources of the straits; that the coastal State should not place in
the straits cny installations which could interfere with or hinder the transit of ships.
T'-ose provisicns reflected the great efforts which had been made to reconcile the
traditional regime of f_:'edom of the high seas applied to straits used for international
navigation with the requirements of coastal States.
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(Mr. Yankov, Bulgaria)
been iia-u.ed that the r g_ime of free transit through straits should apply to
merchant ships only and that prior authorization by the 'coastal State should be required
.for the transit of warships. however, that criterion might give rise to serious
problems by permitting the granting or refusal of access to straits for subjective
reasons which might very often be arbitrary or political: It was inadmissible that a
very limited number of States bordering straits used for international navigation should
assume such discretion with regard to the global system of navigation and the military
balance in the oceans. International transport and communidations, and world peace and
security were of vital concern to the international community as a whole. Consequently,
their control could not be left in the hands of a few States. On the contrary, it should
be based on an objective and equitable regime which would provide a viable international.
legal framework in which they would function.
With regard to overflight, the regime of free passage envisaged in article 3 of
the draft articles would apply mutatis mutandis. That regime was closely connected with
the regime of straits, as it was an important part of the global system of
communications. Consequently, there was no justification for the view that the question
of overflight was not within the scope of the law of the sea, and the Convention to be
prepared should contain soma basic principles on that issue. If necessary,,.there might
be a treaty dealing entirely with aerial . navigation
His'delegaticn supported the proposal that the future Convention should contain 'a
reference to the Charter of the United Nations... Furthermore, it was prepared to take
into account reasonable proposals which would lead to genuine negotiations in which the
regime for stray tt; would be considered jointly with,.the regime for the territorial sea,
the concept of an economic zone, and the international regime for the sea-bed and'oce*an
floor beyond the limits of national. jurisdiction.
Mr. AL--QADHI (Iraq) said that his delegation did not agree with article 3 in
the draft articles submitted by Spain contained'in document A/CONF.62/C.2/L.6. With
regard to the draft artigles contained in document A/CONF.62/C.2/L.11, he felt that
article 1 was a safeguard and. ensured freedom ofnavigation through straits linking two
parts of the high seas while taking account of the interests of coastal States. That
article took into consideration the aspirations of the world community. The criterion on
the basis of which it had been formulated was an objective one and took cognizance of the
world community's need. to develop international trade and communications, while
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(Mr. Al_Qadhi, Iraq)
accommodating the interests of all States concerned. His delegation supported that
article because it felt that freedom of navigation was one of the basic principles of
the law of the sea.
Nevertheless, his delegation had reservations concerning article 2 of the proposal
and also with regard to article 8 of the United Kingdom draft in document
A/CONF.62/C.2/L.3 and he reiterated what had been stated by the representative of
iuwait on behalf of Iraq and other States.
He appealed to the United Kingdom to delete article 8 of its draft. Similarly, he
asked the six Powers which had sponsored the draft articles contained in document
A/CONF.62/C.2/L.11 to delete article 2 of their text.
Mr. SAPOZHNIKOV (Ukrainian Soviet Socialist Republic) said that his country
had joined in sponsoring document A/C0NF.62/C.2/L.11 because it attached great
importance to the problem of straits used for international navigation. His delegation
had already explained its position in that respect during the preparatory work of the
Sea-Bed Committee.
Dome straits were the shortest and most convenient route between seas and oceans
and were the only way for States to communicate, co-operate in different spheres and
develop economic, commercial and other relations. It was therefore wrong to say that the
maintenance of free transit through straits used for international navigation was of
interest only to certain States, even though his delegation was fully aware that all
countries did not use the ocean space and straits to the same extent at the present time.
When establishing principles for international navigation, it was important to
remember that they should be valid for at least a decade; it was therefore necessary to
take future prospects into account, since international straits were becoming
increasingly important for the development of the international navigation of all
countries and for the encouragement of international relations.
Although some countries had access to the sea without passing through any strait,
wany other countries, such as the Mediterranean and the Black Sea countries, dapen$ed on
:.uch passage to gain access to the sea.
:tis country attached prrticular importance to the articles contained in document
A/C0NF.62/C.2/L.11, especially article 1, and insisted that freedom of navigation and
overflight in the air space traditionally used by foreign aircraft for transit between
one part of thApVWQAEgrR&le 9QQ2 1 ofC tip i~ aS~g~~7 ~ ~c~al ai zed.
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(Mr. Sapozhnikov, Ukrainian SSR)
The Ukrainian SSR was fully aware that it was equally important to ensure the
legitimate interests of the coastal States concerned. The draft articles included
detailed provisions in that respect and could: constitute a good basis for the future
convention, taking account of the interests of all States.
The concept of :innocent passage could not be the basis for a satisfactory
arrangement. That concept could not be applied to straits which formed part of the
high seas. Ships passed from.one part of the high sea to another through those
waterways, which were often their only means of access to the ocean; navigation in the
straits could therefore not be subject to unilateral rulings. by coastal States.
Coastal States must, of course, have some control over navigation through the
straits, but such control should be compatible with the interests of international
navigation. To grant coastal States absolute power of control did not safeguard
equality and justice, s:.nce it could lead to discrimination against States with which
they did not maintain good relations.
Those advocating the principle of control by the coastal State based their opinion
on the increasing threat represented by the. strategic interests of the navies. of the
super-Powers. It should, however, be clearly stated that the coastal State's control
over the straits would not prevent an increase in the number of warships, since most
countries possessing such fleets did not have to pass through straits to reach the
oceans. That problem could only be solved by adopting; the proposal of the Union of
Soviet Socialist Republics concerning general and complete disarmament. The regime for
the territorial sea could not serve as a basis for that for straits.
With regard to the statement made by the representative of China at the preceding
meeting, that country was continually holding up the work of the Conference by its
insistence on making factious statements. For instance, it had referred to the
activities of warships of other countries asif it itself possessed none. It might be
asked therefore what was China's position on disarmament. The truth was that when the.
Soviet Union, supported by the majority of developing countries, had proposed that a
conference on general disarmament should be convened, China had raised objections; when
the idea of a declaration on. the prohibition of nuclear weapons had been discussed in'the
General Assembly, that idea had been supported by the developing countries,'but not by
China, China had also opposed the reduction of defence budgets, which would have freed
resources to help the developing countries.
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:tr. JUNIUS (Liberia) said that, as already indicated in the statement made
in plenary meeting on 9 July. Liberia endorsed freedom of passage through straits used
for international navigation. For the time being, his delegation would not press for
a regime of 'free" as opposed to "innocent" passage, since those terms had not yet been
satisfactorily defined by the Committee.
The Conference on the Law of the Sea might perhaps alter a large part of the law
of the sea, but he emphasized that the law in question was not that embodied in
treatises on the subject, nor was it that laid down in conventions which had not yet
entered into force. The fundamental law of the sea that currently prevailed was
grounded on the concept of mare liberum, which had been accepted for centuries by all
States as a cardinal tenet of the customary law of nations.
In the view of his delegation, the obligation of those who wished to assert the
necessity for an extended control of navigation was to adhere to completely objective
safeguards, established by international agreements, with specs.fic guarantees against
the discriminatory application of control measures.
All that his delegation was asking was that those who advocated an international
agreement with a view to extending their marine territoryso that it would encompass
international straits should accept in the same agreement firm commitments to respect
the rights of those countries whose vessels traversed the straits, on the basis of
freedom of the seas.
:r. FRASER (India) recalled that, in its statement of 3 July on the-question
of straits, his delegation had expressed its concern for the development of its
merchant fleet and had declared its support for proposals which ensured smooth and
unimpeded passage of merchant ships, and of all other vessels, whether on the high seas,
or through straits used for international navigation, or through other traditional
channels of navigation. It was obvious that passage through straits used for
international navigation was absolutely necessary for international communications and
economic development, although admittedly passage through territorial waters might
simply be a matter of convenience. For that reason, any obstacle to passage through
::traits might have very far-reaching consequences in terms of transport costs and time.
There had been some proposals that merited careful consideration, and among them
it was pertinent to quote those that endeavoured to strike a balance between the
interests of flaAa%. gfl p&1R a$@ 04/ b1t: &A sRWP 97 09QaQQ 4%$ aL4-ing on
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(Hr. Fraser, India)
straits. The draft-articles contained in chapter'III.of document A/CONF.62/C.2/L.3,
presented by the. United Kingdom., and the amendments to them proposed by Denmark and
Finland in document A/CONF.62/C.2/L.15 might be found useful in that respect.
The six-Power proposal ,in document A/CONF.62/C.2/L.11, and the proposal made by
Oman, in document A/C0NF.62/C.2/L.16, were also. of interest.
in the view of his delegation, it was necessary to lay down provisions which would
impose a duty on the flag-State to ensure protection of the interests. of the coastal
States concerned.- a consideration of vital importance for the security of the coastal
State and for the protection of its marine environment. Similarly, provisions would
also have to be laid down to ensure the expeditious and uninterrupted passage of ships,
and others that would impose,a duty c'n transiting ships to refrain from engaging in
activities which were not related to simple passage, such as fishing. Those provisions
should also prohibit warships from.engaging in any exercises or manoeuvres, using
weapons, launching-or taking on board any aircraft and carrying out scientific research.
As had been suggested by the representative of Singapore, a suitable regime might be
evolved for the passage of submarines which would take into account the need for them
to navigate on the surface while in transit through straits..
Clearer provisions would also be needed.for the prevention and control of
pollution by ships,. and to establish the responsibility of the flag-State in respect
of damage resulting from non-c3mplia;icc with the laws of the coastal State.
His delegation also wished to revert to-the proposal submitted by a number of
delegations in the Sea-Bed Corrnittee, and to the variants thereon, and he expressed the
hope that the Chairnian~would make an assessment cif the various proposals, in order to
provide a basis for consideration of a question of such importance to coastal States,
to States bordering on straits, and to the'international community in general.
OTHER MATTERS
17rr GODOY (Paraguay), supported by Mr. ARIAS SCIREIBER (Peru), speaking on a
point of order, formally proposed that, under rule 26, of the rules of procedure, the
Committee should limit speeches to a maximum of 15 minutes.
The CHAIRMAN said that, if there were no objections, he would take it that
the Committee agreed to limit speeches to a maximum of 15 minutes.
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qtr. LING (China), speaking in the exercise of his right of reply, said that-
the fact that his delegation had supported the proposal that a clear distiactiot'should
be drawn between merchant vessels and warships, thus revealing the real puupse Of the
super-Powers in advocating freedom of navigation, had induced the delegation of the
Uk--'ainian Soviet Socialist Republic to defend its position by sophistry.
On the subject of disarmament, China was opposed to indiscriminate "general
disarmament`' and favoured genuine disarmament, which must be, first of all, the
disarming of the super-Powers. China refu-ed to become a party to the Partial Nuclear
Test Ban Treaty because it wished to eliminate the nuclear monopoly and nuclear
blackmail of the super-Powers. China's nuclear tests were for the sole purpose of
,clf-defence and it had declared that it would never be the first to use nuclear
weQpons. That pledge remained valid, and the super-Powers had not yet dared to
undertake such a commitment.
China had also settled its boundary questions with most of its neighbouring
untries and had not a single soldier stationed abroad, or a single military base.
contrast, there were those who were engaged in frenzied arms expansion and who were
constantly dispatchirj their --archips thousands of miles off to interfere in the
internal affairs of other countries, resorting to every possible means of securing
military bases in other countries, conducting military exercises in the off-sbore areas
of other countries and plundering their resources. Those were facts that had been
denounced by world publi.-; opiric-a and had c:.lled forth protests from the Governments of
several countries; the truth coiL3 not be distorted by sophistry.
Hr. SAPOZHNIKOV (Ukraini& Soviet Socialist Republic) speaking in the
exercise of his right of reply, said the real fact was that the representative of
China had not referred to any of the questions raised by his own delegation.
Th meeting rose at 7.00 P.M.
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