The Regime of Straits in International Law

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2
The Geographical Criterion

1. GEOGRAPHICAL STRAITS

1.1 The Geographical Definition

The law of the sea has constant regard to geographical circumstances, treating them as legal factors ratione materiae.1 As Professor Brownlie states, ' "Geographical realities" is a phrase containing assumptions about the legal relevance of coastal formations.'2 This applies to a strait, a peripheral figure in geography but a source of controversy in international law.

Geography has offered a definition, namely, 'a narrow stretch of sea con necting two extensive areas of sea'.3 A similar expression can be found in the Mariner's Handbook.4 However, the expression 'two large bodies of waters' may be seen by lawyers as having specific implications, involving the division between internal waters, the territorial sea, and the high seas, which concepts are distinctive in law. The laxity of geographical terms may create conceptual confusion of straits and other stretches of sea,5 for all narrow seas flowing between landmasses, a continent and an adjacent island, or islands may cor respond to the geographical notion.6

However, the geographical definition is, in a sense, also specific. At UNC LOS I,7 the Netherlands proposed to add the term 'sealane' to a joint proposal concerning straits, which was sponsored by it in conjunction with the British and Portuguese governments. The purpose was to cover waterways

____________________
1
The Gulf of Maine case [ 1984] ICJ Rep. 329, para. 199: 'Just as the criteria to which they must give effect are basically founded upon geography, the practical methods in question can likewise only be methods appropriate for use against a background of geography.'
2
Brownlie ( 1983), 26.
3
W. G. Moore, 221-2. Also, Monkhouse, 333; Stamp, 462.
4
Supervised by the Hydrographer of the Navy (5th edn., 1979), the Hydrographic Department, Ministry of Defence, London, 35.
5
The geographical definition of a canal is 'a narrow piece of water connecting two large pieces': Stamp, 91. The unfortunate consequence of the confusion is the recurrence of attempts at assimilating canals and straits in law: US v. Rodgers ( 1893) 150 US 249, 256, ( 1945) 13 DSB 208, 212, the address by President Truman; UNCLOS I, OR, iii. 226, UN Doc. A/CONF.13/C.1/L.56 ( Chile), 79, para. 16 ( Chile). The proposal was withdrawn later. Cf. Ferguson, s. 91, 401-2; Lawrence ( 1885), 43-9; Holland ( 1933), 277-8; Phillipson and Buxton, 15; Hunt, 287; F. de Visscher , 40-6; Costa, 115; Accioly, s. 925, 140; Baxter and Triska, 48; Colombos ( 1967), 200.
6
e.g., a sound or a channel: The Mariner's Handbook, 11; R. L. Bates, 629.
7
UNCLOS I, OR, I-III: 86 States participated in it from 24 Feb. to 28 Apr. 1958. Also, Dean ( 1958) 52 AJ 607 ff.; Fitzmaurice ( 1959), 73 ff.; Sorensen ( 1958-9) No 520, 197 ff.; Verzijl ( 1959), 1 ff.; D. H. N. Johnson ( 1959), 122 ff.

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