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(c) The legal régime in straits in which passage is regulated in whole or in part by longstanding international conventions in force specifically relating to such straits.

Article 35

High seas routes or routes through exclusive economic zones
through straits used for international navigation

This chapter does not apply to a strait used for international navigation if a high seas route or a route through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics exists through the strait. SECTION 2. TRANSIT PASSAGE

Article 36

Scope of this Section

This section applies to straits which are used for international navigation between one area of the high seas or an exclusive economic zone and another area of the high seas or an exclusive economic zone.

Article 37

Right of transit passage

1. In straits referred to in article 36, all ships and aircraft enjoy the right of transit passage, which shall not be impeded, except that if the strait is formed by an island of a state bordering the strait and its mainland, transit passage shall not apply if a high seas route or a route in an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics exists seaward of the island.

2. Transit passage is the exercise in accordance with this chapter of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one area of the high seas or an exclusive economic zone and another area of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a state bordering the strait, subject to conditions of entry to that state.

3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of the present convention.

Article 38

Duties of ships and aircraft during their passage

1. Ships and aircraft, while exercising the right of transit passage, shall: (a) Proceed without delay through or over the strait;

(b) Refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of states bordering straits, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(c) Refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress;

(d) Comply with other relevant provisions of this chapter.

2. Ships in transit shall:

(a) Comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea;

(b) Comply with generally accepted international regulations, procedures and practices for the prevention and control of pollution from ships.

3. Aircraft in transit shall:

(a) Observe the Rules of the Air established by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation;

(b) At all times monitor the radio frequency assigned by the appropriate internationally designated air traffic control authority or the appropriate international distress radio frequency.

Article 39

Sea lanes and traffic separation schemes in straits used
for international navigation

1. In conformity with this chapter, states bordering straits may designate sea lanes

and prescribe traffic separation schemes for navigation in straits where necessary to promote the safe passage of ships.

2. Such states may, when circumstances require, and after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by them.

3. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations.

4. Before designating or substituting sea lanes or prescribing or substituting traffic separation schemes, states bordering straits shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the states bordering the straits, after which the states may designate, prescribe or substitute them.

5. In respect of a strait where sea lanes or traffic separation schemes are proposed through the waters of two or more states bordering the strait, the states concerned shall cooperate in formulating proposals in consultation with the organization. 6. States bordering straits shall clearly indicate all sea lanes and traffic separation schemes designated or prescribed by them on charts to which due publicity shall be given. 7. Ships in transit shall respect applicable sea lanes and traffic separation schemes established in accordance with this article.

Article 40

Laws and regulations of states bordering straits relating to

transit passage

1. Subject to the provisions of this section, states bordering straits may make laws and regulations relating to transit passage through straits, in respect of all or any of the following:

(a) The safety of navigation and the regulation of marine traffic, as provided in article 39;

(b) The prevention of pollution by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait;

(c) With respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear;

(d) The taking on board or putting overboard of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary regulations of states bordering straits.

2. Such laws and regulations shall not discriminate in form or fact amongst foreign ships, nor in their application have the practical effect of denying, hampering or impairing the right of transit passage as defined in this section. 3. States bordering straits shall give due publicity to all such laws and regulations. 4. Foreign ships exercising the right of transit passage shall comply with such laws and regulations.

5. The flag state of a ship or aircraft entitled to sovereign immunity which acts in a manner contrary to such laws and regulations or other provisions of this chapter shall bear international responsibility for any loss or damage which results to states bordering straits.

Article 41

Navigation and safety aids and other improvements and the
prevention and control of pollution

User states and states bordering a strait should by agreement cooperate: (a) In the establishment and maintenance in a strait of necessary navigation and safety aids or other improvements in aid of international navigation; and (b) For the prevention and control of pollution from ships.

Article 42

Duties of states bordering straits

States bordering straits shall not hamper transit passage and shall give appropriate publicity to any danger to navigation or overflight within or over the strait of which it has knowledge. There shall be no suspension of transit passage.


Article 43

Innocent passage

1. The regime of innocent passage, in accordance with section 3 of Chapter I, shall apply in straits used for international navigation:

(a) Excluded under paragraph 1 of article 37, from the application of the regime of transit passage; or

(b) Between one area of the high seas or an exclusive economic zone and the territorial sea of a foreign state.

2. There shall be no suspension of innocent passage through such straits.

U.N. Doc. A/CONF. 62/WP.8/Rev. 1, Part II, May 6, 1976, pp. 21-26.

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The Governments of the Republic of Panama and the United States presented a joint report concerning treaty negotiations on the Panama Canal to the Sixth General Assembly of the Organization of American States, at Santiago, on June 9, 1976. The text of the joint report follows:

For the past twelve years, with the support of the OAS, Panama and the United States have maintained an active negotiating process with respect to the new regime for the Panama Canal. By virtue of the Joint Declaration of April 3, 1964, both countries pledged their word to work out a new treaty-a treaty new not only in its date of entry into force, but also in the mentality which it will reflect; that is, it will be in accord with the evolution experienced by the international community.

We are negotiating because both countries feel the need to build a new relationship which gives full regard to the aspirations of the Panamanian people, the interests of both nations and the principles and objectives of the Charter of the UN. And we are negotiating in deference to the unanimous views of our sister republics in the Western Hemisphere.

We are working on the basis that every negotiation concerning an old problem is a transaction towards new formulas of justice; and that progress can only be achieved when a spirit of compromise between the parties exists as a result of their understanding of new realities and, above all, when they seek a balancing of interests within a reasonable period of time.

The negotiating process has confirmed the dedication of both parties to the eight principles agreed on by their authorized representatives on February 7, 1974. The two countries reported to this Assembly last year that significant progress had been made in this process of balancing the interests of both parties in accordance with the eight principles. We are pleased to report that during the past year the parties have made further significant progress on the highly complex issues before them.

Differences remain between the two parties on important issues-the period of duration of the new treaty and arrangements in the land and water areas comprising the Panama Canal Zone.

The Republic of Panama and the United States are anxious to complete these negotiations as soon as possible and recognize that the other nations represented in this Assembly share that desire. But we have recognized that the complexity of the issues remaining before us requires the most careful and painstaking negotiating efforts if we are to achieve a treaty which is truly just and equitable-a treaty which will balance the respective interests of both countries and those of the other nations of the Hemisphere and the world in such a way as to definitely eliminate the potential for causes of conflict in the future. It is in this sense that both Governments are in agreement with the concept expressed by General Torrijos that we are not simply seeking any new treatywe are seeking a treaty that will fully meet our common goals in the future and be seen by our sister republics as reflecting a new era of cooperation in the Americas. The United States and the Republic of Panama reiterate their commitment to continue their most serious efforts to achieve such a treaty as promptly as possible.

The negotiation offers both peoples a peaceful alternative for the solution of a prolonged disagreement between them, and both Governments are convinced that it is their responsibility to explore to the utmost this path which offers such real possibilities for a satisfactory agreement which will cement on solid foundations the friendship and cooperation between our two countries.

If we continue the serious work presently being carried out and if we maintain the reciprocal good will of both missions towards reaching a solution to the pending problems, we cherish the hope that soon we will be able to advise you that a treaty has been agreed upon, a treaty which not only all America, but the entire world, awaits as an effective contribution to consolidate peace and friendship amongst all peoples.

Dept. of State Bulletin, Vol. LXXV, No. 1932, July 5, 1976, pp. 12-13. For the U.S.Panama Joint Declaration of April 3, 1964, see Dept. of State Bulletin, Vol. L, No. 1296, April 27, 1964, p. 656. For the U.S.-Panama Joint Statement of Principles of Feb. 7, 1974, see the 1974 Digest, p. 355; Dept. of State Bulletin, Vol. LXX, No. 1809, Feb. 25, 1974, p. 185. On June 17, 1976, the OAS General Assembly adopted Res. 219 (VI-0/76), which, inter alia, noted “as a positive contribution” the U.S.-Panama report.

Section 104 of the Department of State Appropriation Act, 1977 (P.L. 94-362; 90 Stat. 942), approved July 14, 1976, provides:

It is the sense of the Congress that any new Panama Canal treaty or agreement must protect the vital interests of the United States in the Canal Zone and in the operation, maintenance, property and defense of the Panama Canal.

For a discussion of the origin of this provision, see the 1975 Digest, pp. 436-438.

On October 27, 1976, William R. Drummond, a Canal Zone labor leader, filed suit in the U.S. District Court for the District of the Canal Zone seeking a declaratory judgment and an injunction against continuation of U.S. negotiations with Panama for a new canal treaty. The case, Drummond v. Bunker, Kissinger, and Ford, Civil No. 76-0353-B, sought to enjoin President Ford, Secretary of

State Kissinger, and Ambassador-at-Large Ellsworth Bunker from continuing the negotiations absent prior congressional authorization. A petition to intervene in the suit was filed with the District Court on November 24, 1976, by Senators Strom Thurmond, James A. McClure, and Jesse A. Helms, and Congressmen Daniel J. Flood, M. G. Snyder, and Larry McDonald. On December 3, 1976, the U.S. Attorney filed a motion to dismiss the case for lack of personal jurisdiction and because it presented a political question beyond the jurisdiction of courts. Additionally, he maintained that the claimed injury was so abstract as to present a case not ripe for judicial determination.

The District Court in the Canal Zone dismissed the case on December 17, 1976, after first granting the motion of the six Members of Congress to intervene in the case. Dismissal was on the basis that the U.S. District Court for the District of the Canal Zone has no statutory authority to acquire in personam jurisdiction of defendants who are not physically present in the Zone. The statute, 28 U.S.C. 1391e, which provides for service of a summons and complaint by certified mail (the method used of serving defendants in this case) is not applicable to the U.S. District Court for the District of the Canal Zone.

On Jan. 14, 1977, a similar but not identical suit, Jesse A. Helms, et al. v. Kissinger, Bunker, and Ford, Civil Action No. 77-0083, was brought in U.S. District Court for the District of Columbia against the defendants solely in their official capacities. Secretary of State Cyrus R. Vance and President Jimmy Carter were subsequently substituted for Secretary Kissinger and President Ford. The new action did not request injunctive relief. Plaintiffs, including six Members of Congress, as well as William R. Drummond, sought a "declaration of the exclusive constitutional authority of the Congress in the premises, reserving their right to seek other and further relief if and when circumstances warrant it." On Feb. 3, 1977, plaintiffs moved "to stay further action by defendants to change the status quo in the Canal Zone pending determination of this action on the merits." On Feb. 22, 1977, defendants moved to dismiss the case. Oral argument was scheduled for Feb. 28, 1977.

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Secretary of Transportation William T. Coleman, Jr., on December 17, 1976, approved two applications for licenses to build the first deepwater ports of the United States in the Gulf of Mexico off the coasts of Louisiana and Texas. The action was taken pursuant to the Deepwater Port Act of 1974 (88 Stat. 2126; 33 U.S.C. 1501 et seq.), approved January 3, 1975, which declared it to be the purpose of Congress to "authorize and regulate the location, ownership, construction, and operation of deepwater ports in waters beyond the territorial limits of the United States." See the 1974 Digest, pp. 356-360, for a summary of the provisions of the Act.

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