The Regime of Straits in International Law

By Bing Bing Jia | Go to book overview

4
The Relationship Between International Straits and Bays

1. INTRODUCTION

The criteria for international straits examined in the previous chapters may appear to be less than decisive for the purpose of distinguishing straits from bays conceptually. Strong reasons, however, exist for drawing a distinction between these concepts. The coastal State had formerly tended to appropriate bays and straits alike, on the ground that they were all formations attached closely to its coast, and not all of such claims had been challenged.1 Straits may indeed penetrate inland more deeply than bays, thus creating even more concerns on the part of the coastal State for its security. With regard to the concepts of straits and bays, Hall stated that:

In principle it is difficult to separate gulfs and straits from one another; the reason which is given for conceding a larger right of appropriation in the case of the former than the latter, viz. that all nations are interested in the freedom of straits, being meaningless unless it be granted that a State can prohibit the innocent navigation of such of its territorial waters as vessels may pass over in going from one foreign place to another. If that could be done, it might be necessary to impose a special restriction upon the appropriation of waters which by their position are likely to be used. Such however not being the case in fact, it is the power of control and the safety of the State which have alone to be looked to. The power of exercising control is not less when water of a given breadth is terminated at both ends by water than when it merely runs into the land, and the safety of the state may be more deeply involved in the maintenance of property and of consequent jurisdiction in the case of straits than in that of gulfs.2

This difficulty was, perhaps, what prompted Professor Parry to wonder

why it should be generally considered that there is a right of passage for all shipping through the Straits of Magellan, of which the narrower parts lies wholly within the territorial waters of Chile, but that, pace Oppenheim, there is no such right, qua right, of passage through the Solent.3

____________________
1
e.g., Grotius ( 1646), bk. ii, c. 3, s. 8; Vattel, bk. i, s. 291.
2
Hall, 195-6.
3
BDIL, iib. 5.

-59-

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