The Messina Straits bridge was proposed to be a 3300 m single span suspension
bridge between Sicily and Calabria, about 64–70 m above sea level, with a six-lane
carriageway and double track railway.
It is instructive to note that the exception to transit passage provided in Article
38.1
115 of UNCLOS would apply if the bridge across the Strait of Messina were to
be constructed, since “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 through an exclusive economic zone of similar convenience with respect to
navigational and hydrographical characteristics,” and consequently, the provisions
of Article 45
116 of UNCLOS apply which prescribe a non-suspendable right of
innocent passage.
The possibility of a dispute arising from the Messina bridge has a precedent in the
objections by Finland to the construction of the bridge across the Great Belt in the
Danish strait, in particular to the bridge height of 65 m. Finland argued that the
planned infrastructure would impair the right of free passage of drill ships, oil rigs
and reasonably foreseeable future vessels.
117 In the case of Italy, the 1985 Italian
Ministerial Decree prohibiting the passage of oil tankers over 50,000 tonnes through
the Messina strait could, perhaps, be deemed as a precursor to the impairment of
rights.
The closure represented by the height limit for the Messina bridge which would
similarly become an obstacle of permanent nature is clearly in contrast with the
non-suspendable right of innocent passage which applies to the area. The regime of
innocent passage would be at conflict with the bridge and would be much more
onerous to sustain for foreign ships than a temporary suspension of passage.
9 Conclusion
The regime of innocent passage is challenged in at least six different dimensions—
action, temporal, spatial, cargo, social and inherent. Figure 2 depicts the six dimensions and their component factors impinging on the right of innocent passage.
The varied tenets, trials and tribulations to which a passage of a vessel through
territorial waters is likely to be subjected, in each of the six dimensions as discussed
in this chapter, is summarized in Fig. 3.
It is apparent that mare clausum is set to override mare liberum in the coming
future, even if States were to harmonise their national legislation with the provisions
of UNCLOS. On the one hand, the regime of innocent passage under UNCLOS is
beset with certain inherent ambiguities and provisions that are regarded as rather
115 UNCLOS Article 38, Right of transit passage, p. 37.
116 UNCLOS Article 45, Innocent passage, p. 39.
117 Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July
1991, I.C.J. Reports 1991, p. 12.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
251
bridge between Sicily and Calabria, about 64–70 m above sea level, with a six-lane
carriageway and double track railway.
It is instructive to note that the exception to transit passage provided in Article
38.1
115 of UNCLOS would apply if the bridge across the Strait of Messina were to
be constructed, since “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 through an exclusive economic zone of similar convenience with respect to
navigational and hydrographical characteristics,” and consequently, the provisions
of Article 45
116 of UNCLOS apply which prescribe a non-suspendable right of
innocent passage.
The possibility of a dispute arising from the Messina bridge has a precedent in the
objections by Finland to the construction of the bridge across the Great Belt in the
Danish strait, in particular to the bridge height of 65 m. Finland argued that the
planned infrastructure would impair the right of free passage of drill ships, oil rigs
and reasonably foreseeable future vessels.
117 In the case of Italy, the 1985 Italian
Ministerial Decree prohibiting the passage of oil tankers over 50,000 tonnes through
the Messina strait could, perhaps, be deemed as a precursor to the impairment of
rights.
The closure represented by the height limit for the Messina bridge which would
similarly become an obstacle of permanent nature is clearly in contrast with the
non-suspendable right of innocent passage which applies to the area. The regime of
innocent passage would be at conflict with the bridge and would be much more
onerous to sustain for foreign ships than a temporary suspension of passage.
9 Conclusion
The regime of innocent passage is challenged in at least six different dimensions—
action, temporal, spatial, cargo, social and inherent. Figure 2 depicts the six dimensions and their component factors impinging on the right of innocent passage.
The varied tenets, trials and tribulations to which a passage of a vessel through
territorial waters is likely to be subjected, in each of the six dimensions as discussed
in this chapter, is summarized in Fig. 3.
It is apparent that mare clausum is set to override mare liberum in the coming
future, even if States were to harmonise their national legislation with the provisions
of UNCLOS. On the one hand, the regime of innocent passage under UNCLOS is
beset with certain inherent ambiguities and provisions that are regarded as rather
115 UNCLOS Article 38, Right of transit passage, p. 37.
116 UNCLOS Article 45, Innocent passage, p. 39.
117 Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July
1991, I.C.J. Reports 1991, p. 12.
Innocent Passage Under UNCLOS: An Exploration of the Tenets, Trials. . .
251