By: Frederick Cushmore
April 19, 2022
With Russia’s invasion of Ukraine, interesting issues of international Maritime Law are. Much of this comes from gaps existing in the law and the limits of national jurisdiction over the ocean. First is the issue of Turkey’s closure of the Turkish Straits (Bosporus and Dardanelles straits, between the Sea of Marmara) which is the only way in and out of the Black Sea to Russian ships. Second, the importance of seizing Russian oligarchs’ yachts in port as the limits of state sovereignty over the oceans only extends so far.
In 1949, in the Corfu Channel case, the International Court of Justice (ICJ) recognized that all vessels have a right of passage through international straits, even warships. Modern international norms for the regulation of ships are based on the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”), which was adopted in 1982. In this, the Territorial Sea is the area of twelve nautical miles that extends from the coast of the nation in which they have complete territorial sovereignty. Under Article 18, the right of the innocent passage should be territorial sea ‘continuous and expeditious.’ Article 19 provides that passage should be granted is to be given to all ships as long as the passage is innocent, which is when it is not “prejudicial to the peace, good order or security of the coastal State.” Article 19 also has a non-exhaustive list of activities that are violations like threats, use of force, or activities not having to do with navigation. If there is a violation, the coastal state can act under Article 25, as the passage would no longer be innocent. Article 25 allows the coastal state to suspend innocent passage for its own security concerns.
Modern international norms for the regulation of ships are based on the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”), which was adopted in 1982. In this, the Territorial Sea is the area of twelve nautical miles that extends from the coast of the nation in which they have complete territorial sovereignty. Under Article 18, the right of the innocent passage should be territorial sea ‘continuous and expeditious.’ Article 19 provides that passage should be granted is to be given to all ships as long as the passage is innocent, which is when it is not “prejudicial to the peace, good order or security of the coastal State.” Article 19 also has a non-exhaustive list of activities that are violations like threats, use of force, or activities not having to do with navigation. If there is a violation, the coastal state can act under Article 25, as the passage would no longer be innocent. Article 25 allows the coastal state to suspend innocent passage for its own security concerns.
Issues emerge where the best or only way through is through an international strait, but it is in the territorial sea of another nation, this is called transit passage. For a strait to be considered subject to the transit passage regime, it is subject to the limitation that, “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 similar convenience with respect to navigational and hydrographical characteristics.” The right of transit passage through straits under UNCLOS with Article 38, is that ships during peacetime have a non-suspendable right of transit passage. So long as they are “moving continuously and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.” Under Articles 42 and 43, ships are bound to applicable laws and regulations of States bordering straits that are adopted in accordance with international law.
This applies to Examples of other Straits where transit passage applies between Spain, British Gibraltar, and Morocco over the Strait of Gibraltar. And through the Strait of Hormuz, between by United Arab Emirates, Oman, and Iran. While this is widely internationally recognized but sometimes contested by Iran.
However, there are certain exceptions in the UNCLOS for existing treaties for straits, and one specifically in mind was the Montreux convention, as Article 35(c) states, “the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits.” The Montreux Convention Regarding the Regime of the Straits was signed in 1936; this agreement worked at the time as it allowed Turkey to keep a great deal of power over the Straits, limiting the passage of military ships. The then Soviet Union agreed with this because while it limited their ability to have ships leave the Black sea, it prevented other nations from bringing in large warships as military ships are subject to size restrictions. For countries with coastlines on the Black Sea, there is a “Home Port” provision that allows ships of these nations passage through the straits when they usually wouldn’t be allowed to if they are returning to the ship’s home port.
In late February, Russia attempted to send multiple military ships through the Turkish straits. If the Montreux convention was not in place, the international straits regime under UNCLOS would have applied, and Turkey could not have stopped them. Further, Russia claimed the ‘Home Port’ exception, stating that ships were returning to their homeport, ignoring the fact that these ships had not been based in the Black Sea before. Initially, Turkey seemed like it would allow the ships to make passage. However, Turkey used the fact that these ships were not initially homeported in the Black Sea and the fact that it could suspend the right of transit passage for warships through the straits under the convention to stop them.
Another issue that has come up during the conflict is the seizure of oligarchs’ yachts while they are at port before they can reach the open ocean and reach the waters of another nation where they do not believe the boat will be yacht will be seized. As mentioned before the coastal states’ complete territorial sovereignty only extends twelve miles. Beyond that is the which ranges from 12 to 24 nautical miles. Within the contiguous zone, but has the right to both prevent and punish infringement of fiscal, immigration, sanitary, and customs laws. Beyond that is the Exclusive Economic Zone which ranges out to 200 nautical miles; there are limited laws in which a vessel can be stopped for. Mostly only to protect living and nonliving resources in the zone which the coastal state has right to by the UNCLOS.
One might thinks can’t authorities just chase the ship? Yes, under Article 111 the doctrine of hot pursuit would apply if pursuit of the ship began in a zone where the law was valid. But the pursuit could not enter the territorial waters of another nation.
