The Strait of Messina separates the Italian island of Sicily from Italy mainland.
(See Map 34.) This strait is considered an article 38(1) strait under the terms
of the LOS Convention which provides an exemption from the transit passage
regime for those straits connecting one part of the high seas/EEZ and another
part of the high seas/EEZ where the strait is formed by an island of a State
bordering the strait and its mainland and there exists seaward of the island
a route through the high seas or EEZ of similar convenience with respect to
navigational and hydrographical characteristics.
Effective April 3, 1985, the Government of Italy closed the strait to vessels
10,000 tons and over carrying oil and other pollutants. This action was taken
following a collision at sea resulting in an oil spill in the area. The United States
submitted a diplomatic note to Italy on April 5, 1985, making the following
observations:
As the Government of the United States understands it, this decree is not intended
to apply to warships or other governmental ships on non-commercial service exercising
the right of innocent passage.
It is the understanding of the Government of the United States that this prohibition
on navigation through the Strait of Messina by specified vessels . . . is
intended to give the Government of Italy time in which to formulate proposals
for the regulation of maritime traffic in the strait.
The Government of the United States wishes to make clear that the Strait of
Messina is a strait used for international navigation, to which, in accordance with
customary international law as reflected in the 1982 United Nations Convention
on the Law of the Sea, the regime of non-suspendable innocent passage applies.
The regime of innocent passage is one that may be exercised by vessels of all States,
regardless of type or cargo. By purporting to prohibit navigation through the Strait
of Messina by vessels of specified size carrying specified cargo, the Government of
Italy appears to be attempting to suspend the right of innocent passage for such
vessels, in contravention of long.settled customary and conventional international
law. The Government of the United States therefore reserves its rights and those
of its nationals in this regard. . . .
The Government of the United States recognizes that, in accordance with international
law as reflected in the 1982 United Nations Convention on the Law
of the Sea, the coastal state has certain authority to prescribe sea lanes and traffic
separation schemes that must be used by vessels exercising the right of innocent
passage, especially tankers and other ships carrying dangerous substances.
The coastal State does not, of course, have authority respecting areas of the high
seas. To the extent that a coastal State has such authority in its territorial sea the Government of the United States notes the important role to be played by the
International Maritime Organization in the designation of such sea lanes and the
prescription of traffic separation schemes. The Government of the United States
notes that the decree announced by the Government of Italy refers to regulation
8 of chapter V of the annex to the International Convention for the Safety of
Life at Sea, 1974, which reiterates the importance of the International Maritime
Organization in this process.
The Government of the United States trusts that, in considering what traffic
regulations might be appropriate in the Strait of Messina, the Government of
Italy will give due weight to all relevant factors, including the acknowledged preeminence
of the International Maritime Organization. The Government of the
United States would be pleased to discuss with the Government of Italy appropriate
measures that might be adopted to lessen the risk of environmental damage
in the Strait of Messina. The Government of the United States must, however,
protest the recently announced decree, which has the unlawful effect of suspending
innocent passage for certain types of vessels in a strait through which innocent
passage may not be suspended.
Additional information provided to American Embassy Rome for use in delivering
the foregoing note included the following:
The USG [United States Government] understands that the GOI [Government
of Italy] has prohibited navigation, for at least 45 days beginning 3 April 1985,
through the Strait of Messina by oil tankers and other vessels carrying hazardous
substances, if they are over 10,000 tons.
The USG understands that this action may be related to a recent maritime collision
and oil spill in the area.
The USG recognizes that some inconvenience to navigation by certain vessels
may be an unavoidable result of the presence of oil spilled during this unfortunate
incident and the efforts to clean up such oil.
The prohibition appears to be at least a temporary restriction on passage by
certain types of vessels until the GOI can reach conclusions regarding long‑term
controls over navigation by such vessels in the Strait of Messina.
The USG wishes to note that the Strait of Messina is subject to the regime of
non‑suspendable innocent passage under international law as reflected in both the
1982 LOS Convention and the 1958 Geneva Convention on the Territorial Sea
and the Contiguous Zone.
The USG is of the opinion that this prohibition of passage through the Strait of
Messina by the GOI is not an appropriate exercise of the GOI’s right to impose
upon vessels in innocent passage laws relating to the preservation of the environment
and the prevention, control and reduction of pollution. Accordingly, the
USG considers that such a prohibition constitutes a suspension of the right of
innocent passage by such vessels, in contravention of customary and conventional
international law. . . .
The USG recognizes that the GOI may need to protect significant environmental
interests from possible pollution damage caused by vessels transiting the
Strait of Messina.
The USG strongly urges that, if the GOI considers it necessary to take further
steps to regulate tanker traffic through the strait in order to avoid the danger of
pollution damage, the GOI should do so in an appropriate multilateral forum,
rather than by unlawfully attempting to suspend or interfere with the right of
innocent passage.
