Navigational Regimes of Particular Straits, Baltic Straits(The Oresund and the Belts) case study

The Baltic Straits include the Little Belt, the Great Belt and the Sound (Oresund).
(See Map 36.) The Sound is the shortest passage between the Baltic Sea
and the Kattegat and the North Sea. It is 2.2 miles wide at its narrowest point,
but its depth is insufficient for deep draught vessels. The sole deep water channel
runs through the 10 mile-wide Great Belt. These straits are governed in
part by two treaties, the Treaty for the Redemption of the Sound Dues, Copenhagen,
March 14, 1857, granting free passage of the Sound and Belts for all
flags on April 1, 1857, and the U.S..Danish Convention on Discontinuance of
Sound Dues, April 11, 1857, guaranteeing forever “the free and unencumbered
navigation of American vessels through the Sound and the Belts”.

When it signed the LOS Convention, and confirmed on ratification in 1996,
Sweden declared in part that:
It is the understanding of the Government of Sweden that the exception from
the transit regime in straits provided for in article 35(c) of the Convention is
applicable to the strait between Sweden and Denmark (Oresund) . . . Since in [this
strait] the passage is regulated in whole or in part by long‑standing international
convention in force, the present legal regime in [this strait] will remain unchanged
after the entry into force of the Convention.
On ratification of the Convention in 2004, Denmark declared:
It is the position of the Government of the Kingdom of Denmark that the exception
from the transit passage regime provided for in article 35 (c) of the Convention
applies to the specific regime in the Danish straits (the Great Belt, the Little
Belt and the Danish part of the Sound), which has developed on the basis of the
Copenhagen Treaty of 1857. The present legal regime of the Danish straits will
therefore remain unchanged.
Warships were never subject to payment of the so‑called “Sound Dues,” and
thus it can be argued that no part of these “long‑standing international conventions”
are applicable to them. The U.S. view is that warships and state aircraft
traverse the Oresund and the Belts based either under the customary right of
transit passage or under the conventional right of “free and unencumbered
navigation,” since transit passage is a more restrictive regime than freedom of
navigation guaranteed in the 1857 Conventions. The result is the same: an
international right of transit independent of coastal state interference. Both
Denmark and Sweden (Oresund), however, maintain that warships and state
aircraft that transit the Baltic Straits are subject to coastal state restrictions. They
argue that the “longstanding international conventions” apply, as “modified” by
longstanding domestic legislation. The United States does not agree that LOS
Convention article 35(c) navigation regimes may be unilaterally restricted.
In 1991, Finland instituted proceedings in the International Court of
Justice against Denmark in respect of a dispute concerning passage through
the Great Belt arising from Denmark’s intention to construct a 65-meter
high fixed bridge across the sole deep water route between the Baltic and the North Sea (Route T in the Great Belt), thereby preventing the passage of oil drilling rigs constructed by Finland in its shipyards from being towed in their vertical position under the bridge en route to the North Sea contrary to international
law. Interim measures were denied. Shortly before arguments on the
merits were scheduled to be heard, the two governments reached a settlement
of the dispute, in which Denmark was to pay approximately $16 million to
Finland and Finland was to withdraw its case from the Court.
In a speech presented to the 26th Law of the Sea Institute Annual Conference
in Genoa, Italy on June 22, 1992, the Department of Defense Representative
for Ocean Policy Affairs, RADM William L. Schachte, Jr., JAGC, USN,
stated the views of the United States that “the transit passage articles [of the
LOS Convention] would clearly prohibit the unfettered, unilateral construction
of a bridge across a strait used for international navigation”. He stated that the
United States “does not believe that customary international law permits a State
unilaterally and without prior international approval to construct a fixed bridge
over an international strait which in many instances is the sole practical deep
water route available.” To unify State practice, the United States proposed that
“all future construction plans for bridges over international straits be submitted
to the International Maritime Organization” after providing actual notice
of the proposal well in advance to the IMO. States would then be given the
opportunity to communicate their views to the proposing straits State which
would be obliged to seek to accommodate such views. Finally, the straits-State
could only proceed with actual construction upon determination by the IMO
that the proposal conforms to the established IMO guidelines and standards
(which are yet to be developed and adopted by the IMO). The United States
would not apply this procedure to this bridge over the Great Belt. No formal
action has been taken on this proposal.

In 1996 the MSC adopted a mandatory ship reporting system “in the Great
Belt Traffic Area.” In 2005 the IMO Assembly adopted minor amendments
to that mandatory ship reporting system “in the Great Belt Traffic Area.” In
2006 the MSC amended the mandatory ship reporting system “in the Storebælt (Great Belt) Traffic Area (BELTREP).” This system is applicable to ships with a gross tonnage of 50 and above; and to all ships with an air draught of 15 m
or more. With regard to the Great Belt Bridges, the system provides that
passage through the marked spans at the West Bridge is allowed only for ships
below 1,000 tonnes deadweight and with an air draught of less than 18 metres
[and] that passage through the traffic separation scheme under the East Bridge is
allowed only forships with an air draught of less than 65 metres.
This system was expected to be amended in 2012.
In 2010 the MSC adopted a new mandatory ship reporting system “in the
Sound between Denmark and Sweden” known as SOUNDREP. The system
provides that:
Pursuant to SOLAS 1974 Convention, as amended, the SOUNDREP does not
apply to warships, naval auxiliaries, other ships owned or operated by a Contracting
Government and used, only on Government non-commercial service. However,
such ships are encouraged to participate in the reporting system.

Leave a Reply