・ what procedures arc required to give effect to
"adoption"?; and
・ what arc the roles of the Assembly, Council and other IMO
committees in the adoption process?
The "competent international organization"
6 UNCLOS Article 53(1) states that "An archipelagic State may
designate sea lanes and air routes thereabove, suitable for continuous and expeditious
passage of foreign ships and aircraft through or over its archipelagic waters and the
adjacent territorial sea"1. The remaining clauses under Article 53 expand on
technical aspects of designation, with clear distinctions being made between the
requirements for routeing measures and traffic separation schemes and the requirements for
aircraft overflight.
7 The distinction between sea lanes and air routes has its origins in
the earlier negotiating drafts of UNCLOS which referred only to sea lanes and ships, and
not to aircraft, which were first included in 1977. As Article 53(9) refers only to sea
lanes and traffic separation schemes, it could be argued that only sea lanes designation
proposals need to be referred to the competent international organization, and that would
be the competent maritime international organization, IMO.
8 This conclusion seems consistent with findings of the United Nations
Division for Ocean Affairs and Law of the Sea in the Office of Legal Affairs. The Office
issued a table in November 1994 listing which organizations it considers to be the
competent international organization for particular subject areas. It nominated the
International Maritime Organization (IMO), a specialized agency of the United Nations
dealing with maritime affairs, to be the competent international organization for the
purposes of adopting proposals concerning sea lanes and traffic separation schemes under
Article 53(9) of UNCLOS.
9 What is not clear from either UNCLOS or the UN Office of Legal
Affairs note is the extent of ICAO involvement in the adoption process in relation to air
routes. As both IMO and ICAO have a clearly defined role in relation to safety and
environment issues, it is now necessary for these organizations to examine their role in
relation to UNCLOS.
10 In order for the adoption process to proceed smoothly, it is
suggested that legal advice be sought on whether there are any circumstances under Article
53(9) where ICAO could also be considered to have a complementary or independent role in
relation to air routes over proposed designated sea lanes.
Meaning of "adoption"
11 UNCLOS provides little guidance as to what is envisaged by
"adoption" of sea lanes proposals and how it should be achieved.
12 The Organization adopts or endorses a number of safety and
navigation measures, such as ships routeing and traffic separation schemes. Adoption in
these instances normally takes the form of a recommended practice. However, SOLAS chapter
V makes provision for mandatory routeing measures. This form of adoption, resulting in a
mandatory routeing measure, does not seem to be what was envisaged under Article 53 of
UNCLOS. An archipelagic sea lanes proposal by comparison contains both mandatory and
advisory elements. For example, compliance with the archipelagic sea lanes management
regime may be mandatory, but the use of the archipelagic sea lanes themselves is not
compulsory. The right of innocent passage continues to exist in undesignated waters and
there is no requirement to use a
