International Straits Research Articles

Steering Between Scylla and Charybdis: The Northwest Passage as Territorial Sea

Heightened attention is being paid to the Northwest Passage, the waters that flow among the islands of northern Canada and that, in the next decades, may be amenable to commercial navigation. Most debates regarding the Passage's legal status focus on Canada's contention that it is its internal waters and the United States’ contention that it is an international strait. This article proposes that a designation of the Passage as Canada's territorial sea would be as legally robust as the internal waters or international strait designations while satisfying both Canada's and the United States’ political objectives.

The Northwest Passage: An Artificial Waterway Subject to a Bilateral Treaty Regime?

This article uses the Northwest Passage as a case for study of one issue relating to the regime of international straits: whether a strait formed geographically and functionally by means of artificial aids for navigation may be regarded as an artificial waterway to which the regime of international straits does not apply. The article suggests that the Northwest Passage could be subject to a bilateral treaty regime between Canada and the United States, largely akin to that which applies to artificial waterways such as the Panama Canal. This solution would guarantee both Canadian sovereignty over the Passage and the interests of international shipping in having a route open and secure.

The Arctic Exception and the IMO’s PSSA Mechanism: Assessing their Value as Sources of Protection for the Northwest Passage

Abstract For more than half a century, Canada has affirmed that all of the waters within its Arctic archipelago, including the Northwest Passage, are Canadian historic internal waters over which it exercises sovereign control. Canada’s detractors have qualified the Canadian position as excessive, arguing that the Northwest Passage is an international strait and that international legal regimes guarantee the preservation of the Arctic waterway. It is this contention, that international legal tools exist—specifically Article 234 of the LOSC and the IMO’s PSSA mechanism—and that they would adequately protect the Northwest Passage even if it came to be recognized as an international strait, which is the subject of investigation.

Transnational security issues in the Asian maritime environment: responding to maritime piracy

Asian waters are geographically positioned as a lifeline for international maritime trade and commerce. Individual coastal state maritime interests aside, there is a legitimate international interest in ensuring international straits are safe for the vast volumes of merchant shipping transiting the region each day. The willingness of states external to the Asian region to become involved when maritime stability is threatened is well illustrated through an examination of the incidence of maritime piracy. The fact that the Asian states, particularly Indonesia and Malaysia, bristled at the principally Western interest in seeking enhanced maritime security indicates that at least in this instance, regional cooperation was driven more by a desire to keep Western powers out than a desire to work with neighbouring governments. This article examines the pattern of piracy and the regional initiatives which have been successful in reducing the number of reported incidents. It concludes that not only are effective regional responses to transnational security issues such as maritime piracy and illegal fishing in Asia unlikely, in the absence of intervention from the international community, but that states with sovereign interests at stake in the issue prevent the kind of broader international interest and participation needed to compel more cooperative regional action.

A Note on and a Proposal with Respect to the Transportation of Nuclear Cargoes in International Straits

The adoption of an international agreement to create a regime of prior communication and cooperation in the establishment of a precautionary contingency plan for nuclear spills for straits used for international navigation is vital as the peaceful uses of nuclear energy continue to be attractive to states, including Asian states, as a component of a sustainable energy strategy. With the expected rise in nuclear commerce for peaceful purposes, the need for a comprehensive framework for nuclear cargoes and wastes exists and this includes suitable response action plans for nuclear spills. The international instruments adopted by the International Maritime Organisation and the International Atomic Energy Agency provided a framework for the safe and secure carriage of nuclear materials from, other things, piracy, terrorism and sabotage. This article focuses on the movement of vessels carrying nuclear cargoes and wastes through the territorial sea waters of international straits and the necessary relationship that should exist between the vessels and the adjacent coastal States.

Compulsory Pilotage and the Law of the Sea: Lessons Learned from the Torres Strait

The regulation of navigation by shipping has been one of the longest standing issues confronting the law of the sea. Once states began to assert various forms of control and regulation over their adjacent waters, the issue of regulating the passage of foreign-flagged ships needed to be addressed. While the navigational rights and freedoms of shipping is now relatively settled under both the LOSC and contemporary state practice, a counterpoint to this has gradually emerged over the past 30 years due to a growing environmental awareness by coastal states of the need for enhanced environmental protection and management of not only their waters, but also their marine environmental resources and adjacent coastal areas. One response by coastal states has been to adopt compulsory pilotage regimes under which certain ships are required to take on board pilots, or avail themselves of pilotage services, as they pass through certain waters. Pilotage has a long maritime history, and is closely connected with efforts to secure the safety of shipping and the safety of a port from wayward ships. Once pilotage is required beyond internal waters in the territorial sea of a coastal state including an international strait the LOSC imposes constraints on the coastal state regulation of foreign shipping within those waters. Those rights of the coastal state are not unilateral and must be understood in the context of not only the LOSC but also related mechanisms and frameworks, especially those dealing with ship safety and the regulation of navigation overseen by the International Maritime Organisation (IMO). This essay looks at these issues in the context of a compulsory pilotage regime that has been adopted by Australia and Papua New Guinea (PNG) for the Torres Strait, and then considers what options may be available for equivalent measures to be adopted for the Straits of Malacca and Singapore.

Effects of protection rules and measures in an important international strait area: the Bonifacio Strait

The Strait of Bonifacio, between Sardinia and Corsica, is an area with environmental characteristics of great importance and uniqueness in the Mediterranean. Since the early ‘90s Italy and France have been trying to preserve the area through the creation of national and international marine parks, activating understandings to limit the danger of environmental emergencies and ensuring compliance with international agreements, both from the EC and IMO. The bilateral agreement of 1993 prohibits the passage through the Strait of Italian and French tankers and other ships with hazardous and noxious substances at full load, but it does not restrict the transit of ships from other countries or when empty. The analysis of 2000–2009 data of transits through the Strait of Bonifacio, derived from the Vessel Traffic Service provided by the Coast Guard of La Maddalena, shows the fulfilment of agreements within this maritime sector and their limits, and possible remedies are suggested.

The composition and distribution of the particulate matter in the Strait of Magellan (Chile) during the 1991 and 1995 Italian campaigns

During 1991 and 1995, the Italian National Program for Antarctic Research carried out two oceanographic campaigns in the framework of the International (Strait of) Magellan Project. In this paper, we describe the distribution, biochemical composition, and mineralogical characteristics of particulate matter and the characteristics of the water masses defining microbasins in the Strait of Magellan. The data analyses highlighted differences in quality and quantity of the suspended matter and its organic component in the basins that make up the Strait and the Pacific Ocean. The westernmost basin is subject to an eastward flow from the Pacific Ocean, and continental runoff in the surface layers, which are consequently rich in organic matter with a high C:N ratio. The central basin, Isla Carlos III–Segunda Angostura, is characterized by the mixing of Sub-Antarctic Pacific waters, continental runoff, and glacio-fluvial waters: The basin has the lowest particulate matter concentration, but at Paso Ancho showed high concentrations of organic matter with a lower C:N ratio. The easternmost basin, Segunda Angostura-Atlantic entrance, is characterized by the mixing of the water column due to strong Atlantic tides and showed high concentration of particulate matter with a high detritic component. Generally, the organic matter concentrations showed significant differences during the cruises, being higher in 1991. Using the multivariate discriminant factor analysis to determine whether statistically significant differences existed between defined sampling areas, we determined that temperature, particulate organic carbon, and total particulate matter were the variables most important for the difference between areas.

Regulation of International Straits

Generally this article discusses regulation on international strait which involves the straits of Malacca and Singapore. With regard to the straits used for international navigation, the 1982 UNCLOS prescribes the rights and obligations of the States bordering the straits as well as the users in transip passage. This article describes the problems of the straits of Malacca and Singapore which mainly lay on how to ensure safety and protect environment of the coastal States, Development od Cooperative Mechanism, bilateral cooperation, and new issues. In conclusion, the author share his lesson learned within the last decades on his experiences.

The Arctic Waters and the Northwest Passage: A Final Revisit

Climate change has reduced the extent and thickness of sea ice in the Arctic, making international shipping in the Northwest Passage a virtual certainty in the foreseeable future. Such future shipping raises the question of whether the Passage is or might become an international strait, with the consequent right of transit passage. This article examines the two possible legal bases for Canada's claim that the waters of the Canadian Arctic Archipelago are internal waters: a historic title and straight baselines. It also addresses the issue of the possible internationalization of the Passage, if Canada does not take preventive measures. Some such measures are recommended in the last part of the article.

The Law of the Sea Convention and the Northwest Passage

AbstractConcern over the loss of sea ice has renewed discussions over the legal status of the Arctic and sub-Arctic transcontinental maritime route connecting the Atlantic and the Pacific, referred to as the "Northwest Passage." Over the last thirty years, Canada has maintained that the waters of the Passage are some combination of internal waters or territorial seas. Applying the rules of international law, as reflected in the 1982 United Nations Law of the Sea Convention, suggests that the Passage is a strait used for international navigation. Expressing concerns over maritime safety and security, recognition of northern sovereignty, and protection of the fragile Arctic environment, Canada has sought to exercise greater authority over the Passage. This article suggests that Canada can best achieve widespread global support for managing its maritime Arctic by acknowledging that the passage constitutes an international strait and then working through the International Maritime Organization to develop a comprehensive package of internationally accepted regulations.

International Law and the November 2004 “Han Incident”

The Ishigaki Strait is an international strait by the terms of the United Nations Law of the Sea Convention, but for national security reasons it is not recognized as such by the Japanese government, which advocates a narrower definition of what constitutes an international strait in which the right of transit passage applies. China, as a traditional land power with tradinationally weak maritime forces, has historically agreed with Japan's limitations on access through such straits. As China's maritime strength grows, it has increasingly greater interest in access to ocean spaces. However, because of tension and poor coordination between its military and foreign policy bureaucracies, China missed an opportunity during the diplomatic crisis in November 2004 to align its position on maritime law with its strategic interests. The views expressed in this article are the author’s, and do not necessarily represent the views of the United States Navy or any part of the US government.

The Northwest Passage

A series of seven channels that link the Atlantic and Pacific oceans at the top of North America, referred to as the Northwest Passage, has been declared by the government of Canada to be internal waters. The passage has long been considered potentially lucrative and commercially promising because it represents a route that is shorter by yoookm for vessels transporting cargo between Europe and Asia and could represent a new source of undiscovered natural resources. The difficulty is that the Northwest Passage is frozen and impassable for surface vessels most of the year. Even in the summer months, the passage is only open for a few weeks to ice-strengthened vessels, whose captain and crew must have nerves of steel.However, scientific evidence stemming from global warming is suggesting the possibility that the passage will be ice-free for many more weeks and possibly months during the year, thus leading many to envisage a new, international, commercial shipping channel. With this possibility come a number of issues, not the least of which are environmental concerns for Canada. In addition, ice-breaking, navigational support, extraction of resources, and monitoring and enforcement of national and international laws are all issues that stem from an ice-free (or freer) passage.Above and beyond these practical issues is the very emotional and complicated tie Canadians have with their Arctic and the Northwest Passage. The passage has long been the subject of sagas and epic journeys and is part of the Canadian identity. An ice-free passage could alter the degree of Canadian control of the passage as there are pressures to designate it an international strait. Many believe that if the passage becomes an international, commercial thoroughfare, Canada must necessarily lose its over the passage as well as a piece of its collective identity.The current legal conundrum posed by the passage is that while Canada maintains it falls within historic internal waters, which gives it the exclusive right to decide which ships may and may not enter, the US maintains it is not waters and that the passage is an international strait and therefore free access must be automatically and necessarily granted to all vessels entering it. It is universally recognized that the arctic waters are Canadian; the issue is the degree of control Canada may exercise.The October 2004 speech from the throne1 calls for the first-ever comprehensive Northern Strategy that could, among other things, tackle this issue of the passage once and for all.2 The question is what Canada should do if the passage becomes ice-free, given the practical concerns regarding commercial shipping and the deeply held Canadian conviction that the true North [remain] strong and free. The purpose of this paper is to provide some answers to this question. Both the US and Canada have legal arguments that find support in cases from the International Court of Justice (ICJ). All evidence suggests that a strictly legal solution to the passage is unlikely, hence the importance of finding an alternative way forward.To date, there have been many suggestions that can be grouped into two schools of thought. However, neither framework solves both the practical issues as well as the more emotive issue: the best advice from both must be considered.The first conceptual framework, which I call the sovereignty first and foremost school, assumes that Canada's is tied directly to the ice. Franklyn Griffiths refers to this as the sovereignty on thinning ice theory.' According to this way of thinking, any solutions or suggestions regarding the passage must have as their end objective the solidification of Canada's total legal control. The second framework, the sovereignty to one side framework, holds the issue constant, as it were, in order to concentrate on the more practical issues associated with an ice-free passage such as protecting the environment, ensuring the security of Canada and the North American continent, facilitating navigation, breaking ice, harvesting and protecting raw materials and resources, and monitoring and enforcing national and international laws. …

L’initiative de Gorbatchev à Mourmansk et les mesures de restauration de la confiance dans l’Arctique

In his speech at Murmansk on October 1, 1987, General Secretary Gorbachev presented a programme to radically lower the level of military confrontation in the Arctic and proposed a number of confidence-building measures. The Murmansk initiative followed numerous previous proposals along the same line, going back to the nineteen fifties. The political and military aspects of the initiative are linked to the Soviet concept of international security. There are three main elements to this concept: first, the impossibility, to-day, of insuring a country's security by military means alone; second, security must be mutual between the Soviet Union and the United States and it must be universal in the rest of the world; third, security must be comprehensive and must include the military, political, economic and humanitarian dimensions. Specifically on northern security, it must be noted that the Soviet Union is quite vulnerable in the Arctic, with about half of its total land mass north of the 60th parallel. Also, the Arctic offers the shortest route for ICBMS, SLBMs and strategic bombers. Consequently, international security in the Arctic dictates confidence-building measures. The Murmansk initiative represents a significant contribution to the whole process of confidence-building by proposing, in particular: to limit the number of large exercises by naval and air forces in the Northern seas; to invite observers to such exercises; to include Barents Sea, along with other Northern seas, in a zone of peace; to ban anti-submarine activities in agreed areas of the Northern and Western Atlantic; to include the reduction of military activities in the Arctic on the agenda of the second stage of the Conference on CBM and Disarmement in Europe; to reduce naval activities in international straits; and to pursue the establishment of a Nordic nuclear weapon-free zone for which the Soviet Union would act as guarantor.

Straits in the Russian Arctic

The issues surrounding the regimes of international straits, noninternational straits, and ice-covered areas are analyzed for the purpose of looking at Russian practices in its Arctic straits. It is concluded that the Russian practice exceeds that permitted to states bordering straits under the traditional regime for straits. Nevertheless, viewing the U.S. practice as a coastal state, as well as the coastal state practice of Canada, substantial similarities are found with the Russian practice. Conflicting claims and practices result in a confused Arctic legal regime. An international conference is recommended to discuss and perhaps settle the issues.

Still Unresolved after Fifty Years: The Northwest Passage in Canadian-American Relations, 1946–1998

Introduction sailor dream of five centuries: The Near Way to Far East is North.(1) Canadians have a near-mystical bond to their Arctic, a frigid vastness that has sparked Canadian imagination, inspired and shaped a Canadian national identity, and fomented debate over perceived and real challenges to Canadian sovereignty in region. approach to Arctic is overtly nationalistic,(2) and arctic sovereignty is of paramount importance, to be protected and preserved. However, for United States, Arctic is first and foremost linked to national security which, due to interplay of geography, array of Cold War Soviet threats, and even current technological innovations and military hardware, is understood in this context to mean continental defense. In United States' effort to maintain continental security, Canadian sovereignty sensitivities have, at times, been slighted, but intention has not been to deny Canadian arctic sovereignty. In postwar period, Canada's attempts to grapple with its emotional attachment to North, and considerable expense required to occupy and defend it, have been a recurring issue. Nowhere is poignancy of this dilemma more acute than with Northwest Passage, that series of waterways connecting Atlantic and Pacific Oceans north of mainland Canada. The issues and emotions surrounding Passage remain same after more than fifty years. Sovereignty is supreme legitimate authority within a territory.(3) It is one thing to claim authority and have it be recognized as legitimate, and another to maintain power and means to protect and enforce claim. The former is de jure sovereignty, latter de facto sovereignty.(4) Canadian de jure sovereignty over its arctic land and islands was internationally recognized by 1930s. But case of arctic waters, specifically both de jure and de facto sovereignty of Northwest Passage, remains unresolved even today. Canada has never proclaimed its intention to exercise exclusive use or presence in Northwest Passage. But process of reaching present Canadian position that of Canadian Arctic Archipelago, including Northwest Passage, are historical internal waters with no right of passages(5) has been anything but direct and swift.(6) In addition, Canada has rarely allocated or committed funds, personnel, or equipment to monitor, defend, or protect Passage. The United States maintains that Passage is an international strait with right of transit passage(7) and largely immune from jurisdiction of contiguous state. Challenges, real or perceived, have proven to be a periodic thorn in Canadian-American relations. In 1987, Secretary of State for External Affairs, Joe Clark, declared that Northwest Passage was the `one pure sovereignty issue of truly major proportions.'(8) But what is status of Northwest Passage in this long-running and still controversial saga in U.S.-Canadian relations? Can there be resolution or will Canada's tentative, underfunded approach and America's unyielding adherence to freedom of navigation perpetuate piecemeal solutions? Is issue any different today from what it was fifty years ago? While both history of and claims to Northwest Passage have been explored,(9) this paper argues that now is time to conclude heretofore elusive settlement. While not minimizing complexity of situation, this paper argues that by evaluating history of and claims to Passage, it can be concluded that it is in best interests of both nations to find a practical, bilateral, narrowly defined solution that recognizes Canada's sovereignty claims, while at same time addressing United States' continental security concerns. The basis of this conclusion lies in four factors: Canada's place as a paramount ally and continental partner of United States, history of bilateral cooperation for more than fifty years, geographically unique nature of Northwest Passage that precludes any arrangement becoming precedent-setting with regard to other straits, and fact that Passage is not considered a vital choke point by United States military. …

The Northwest Passage in Transit

A CONSTRUCTION OF SOUTHERN MINDS, the Northwest Passage has long been the site of exploration in reality and in imagination. This article is an exercise in the imagination. For gritty detail on navigation in polar waters you will have to look elsewhere. What I am about to consider is not the Northwest Passage and what is being done there, but rather its changing context and the elements of an alternative construction that might now be put on it. For some decades the waters of the Canadian Arctic archipelago have been construed largely in terms of conflict between a coastal state, Canada, which would like to exercise exclusive jurisdiction, and major maritime powers, principally the United States, whose chief aim is to maintain freedom of navigation. This frame of reference is proving to be not that well suited to the requirements of emergent collective action in the circumpolar north. The received thinking is also being overtaken by far broader developments, the combined effect of which is very difficult to discern. In an era of global change the Northwest Passage is not exempt: it and most everything connected with it is in transit from a familiar past to an indeterminate future. In hopes of contributing to the search for better ways of doing things together in the Arctic, I will briefly explore the Northwest Passage for an alternative construction more in keeping with the times. But first, the received thinking.STATE-CENTRISMIn the standard view, the Northwest Passage is an arena for interstate conflict and accommodation in the exercise of rights and obligations under international law. Nation-states are the be-all and end-all in this perspective. They ultimately make the law and have a near monopoly of representation before it. Civil society, those most immediately affected by the evolution and application of the law in specific circumstances, and individuals all lack presence and personality.Where the Passage is concerned, states are divided over the interpretation of the law. Canada's assertion is one of exclusive jurisdiction or sovereignty over the waters of the Canadian archipelago, a claim largely founded on the right to draw straight baselines around the outer perimeter of the archipelago to delimit the territorial sea, behind which internal waters lie and no right of innocent passage exists. In announcing its intention to establish straight baselines in September 1985, Canada, it should be noted, lifted its prior bar on the jurisdiction of the International Court of Justice (ICJ) over its sovereignty claim. The United States, for its part, claims that the varied waterways of the Canadian archipelago, which together make up the Northwest Passage, constitute an international strait in which rights of transit apply, as do certain flag-state obligations under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) for state surface vessels, submarines, and aircraft, together with commercial vessels.The Canadian state believes that drawing straight baselines around the archipelago changes nothing: the waterways in question have always been internal to Canada; they have been used by Inuit, now of Canada, since time immemorial; and they have been sailed only infrequently by the surface vessels of foreign states - most notably in 1969 and 1985 by the United States icebreakers Northwind and Polar Sea - without a prior request for Canadian permission. The United States, on the other hand, is convinced that Canada's action signals a change: a unilateral act to close an international strait would provide a precedent for archipelagic and coastal states to follow suit, thereby constraining worldwide freedom of navigation and the mobility of United States naval forces in particular.Eleven years ago, in January 1988, Canada and the United States reached an agreement on icebreaker navigation, the provisions of which applied to the waters of the Canadian Arctic archipelago.(f.1) The Arctic Cooperation Agreement ensured that 'all navigation by U. …

Analysis of the Provisions of the LOSC on the Exceptions to the Right of Transit Passage through International Straits and Related Issues

This paper examines the provisions of the 1982 United Nations Convention on the Law of the Sea (LOSC) with respect to the exceptions to the right of transit passage through straits used for international navigation. The paper concludes that: (a) although the LOSC provides a special regime of passage through straits used for international navigation, there are still many straits which are under different regimes of passage; and (b) although the LOSC defines the exceptions to the right of transit passage, there are still some ambiguities in the relevant provisions of the LOSC which require clarification.

The Contribution of Channels to the Definition of Straits Used For International Navigation

AbstractThe questions of what is "a strait used for international navigation", and the regime applicable in such waterways or even in "broad" straits, remain unsettled in the LOS Convention. However, channels of navigation may assist in determining the "geographical situation" of international straits. It is submitted, therefore, that, where there is only one coastal state bordering more than one strait connecting the same parts of the high seas or the EEZ, the claim of transit passage through straits of secondary importance may be abusive. Obviously, the non-application of transit passage on the grounds of abuse of rights is not able to modify the international character of such waterways, the regime of non-suspendable innocent passage being thus applicable. Moreover, modalities of passage evidenced by the existence of maritime traffic through channels of navigation may be useful when determining the "extent" of the regime of transit passage in the so-called "broad" straits.

The new law of the sea: Rethinking the implications for sovereign jurisdiction and freedom of action

This article examines the effects of the 1982 UN Convention on the Law of the Sea on sovereign jurisdiction and freedom of action in key sea zones covered under this Convention for coastal, noncoastal, and landlocked states pursuant to the modifications contained in the 1994 Implementation Agreement. In order to determine whether or not the treaty increases, decreases, or has no effect on state sovereign‐jurisdiction and freedom of action in the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, the archipelagic regime, international straits, the high seas, and the deep seabed, the rights and duties of states set forth in this Convention are compared with those previously recognized in the 1958 Geneva Law of the Sea Conventions, state practice, and other sources of international law.