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.     

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.     

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.     

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.     

International Straits and Trans-Arctic Navigation

The Arctic Ocean is increasingly becoming accessible to international shipping as a result of the reduction in Arctic sea ice. Commercial shipping may seek to transit the Arctic Ocean from either the Pacific or Atlantic Ocean and, as a result, the legal regime of straits has significance for trans-Arctic navigation. In this article, current developments in Arctic shipping are assessed and consideration is given to certain Arctic straits that could prove to be pivotal in future Arctic navigation and shipping. These straits include the Bering Strait, Nares Strait, Davis Strait, Fram Strait, and Denmark Strait.     

UNCLOS III and conflict management in straits

Abstract

The legal regime articulated for international straits in the United Nations Convention of 1982 is a significant milestone in the reconciliation of competing interests attendant upon navigation in international straits. However, the author also submits that the refinement of respective rights and obligations of states in international straits can only be harmonized through the process of claim and counterclaim, a slow and somewhat tedious process. Extremely difficult, yet highly important questions deserve thoughtful analysis in the context of the 1982 Convention's territorial sea and straits provisions.     

The Position of the United States on the Northwest Passage: Is the Fear of Creating a Precedent Warranted?

For decades, Ottawa and Washington have been agreeing to disagree on the question of the legal status of the Northwest Passage. One argument which has been consistently raised on the U.S. side and which has precluded attempts to end the deadlock has been the fear of creating a negative precedent. This article assesses whether U.S. concerns are warranted: could coastal States elsewhere in the world rely on an eventual recognition of Canadian sovereignty over the Northwest Passage to bolster their claims over a local strait?     

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.     

The new ocean regime and Japan

Abstract

Japan is an island nation which is heavily dependent upon the surrounding seas for food, importation of raw materials, exportation of finished products, and for national security. Japan is also the world's largest fishing and shipping nation, which poses certain problems and imposes special responsibilities on her. Japan has traditionally followed the principle of freedom of the high seas, but under the external pressure of developments at UNCLOS III and unilateral actions by other states, Japan has been forced to accept and accommodate herself to the new concept of transit passage through international straits, the twelve nautical mile territorial sea, and the two hundred nautical mile exclusive economic zone, which were perceived as contrary to her national interests. However, Japan is adapting to the new ocean regime that is emerging from both customary and conventional international law, because she has confidence that a stable regime is more important in the long run than some short‐term advantages that might be obtained through the absence of any regime. Furthermore, as one of the highly developed nations of the world, Japan feels a special responsibility to play an effective role in aiding and assisting the developing nations of the world.     

The Northwest Passage opens for bowhead whales

The loss of Arctic sea ice is predicted to open up the Northwest Passage, shortening shipping routes and facilitating the exchange of marine organisms between the Atlantic and the Pacific oceans. Here, we present the first observations of distribution overlap of bowhead whales (Balaena mysticetus) from the two oceans in the Northwest Passage, demonstrating this route is already connecting whales from two populations that have been assumed to be separated by sea ice. Previous satellite tracking has demonstrated that bowhead whales from West Greenland and Alaska enter the ice-infested channels of the Canadian High Arctic during summer. In August 2010, two bowhead whales from West Greenland and Alaska entered the Northwest Passage from opposite directions and spent approximately 10 days in the same area, documenting overlap between the two populations.     

United States policy on international straits

Abstract

United States policy on international straits is dictated by the vital importance to U.S. national security interests of unimpeded commercial and military transit through, over, and under sea lines of communication. Although perceived flaws in the deep seabed mining regime of the 1982 Law of the Sea Convention precluded U.S. signature or ratification of that document, the United States considers that the navigational articles of the convention reflect customary international law. Accordingly, U.S. policy on international straits is premised on recognition of and respect for the balance of interests set forth in the navigational articles of the 1982 Law of the Sea Convention.     

Transit Passage and Pollution Control in Straits under the 1982 Law of the Sea Convention

This contribution examines and points out the inadequacy of the provisions of Part III of the 1982 Law of the Sea (LOS) Convention to combat marine pollution in straits used for international navigation without infringing the right to transit passage of all user states. It stresses that it is the environmental obligation of all user and strait states to protect the marine environment of straits used for international navigation. To this end, this paper proposes that Part III of the 1982 LOS Convention be reconsidered and a "Guarantee of Freedom of Navigation--Environmental Impact Statement" be adopted by user and strait states.     

The “Arctic Exception” in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?

This article examines the so-called “Arctic exception,” Article 234 of the 1982 UN Convention on the Law of the Sea. Article 234 is intended to give the coastal state of ice-covered sea areas the necessary powers to prevent, reduce, and control vessel source pollution, which poses a particular risk to the highly sensitive Arctic marine environment. The aim of this article is to present a thorough interpretation of Article 234 in order to eventually evaluate the provision's significance for Arctic navigation, specifically in the Canadian Arctic and the Northwest Passage.     

Politics,Pride, and Precedent: The United States and Canada in the Northwest Passage

The issue of the status of the Northwest Passage has ebbed and flowed in U.S.-Canada relations for decades, but the effect of global warming in the Arctic has moved this issue from the largely academic and legalistic realms to the forefront of bilateral (and international) relations. Intimately linked to Canadian nationalism, U.S. adherence to the doctrine of freedom of the seas, and to politics in both nations, the opposing positions held by the two states can no longer afford to be implacably held. Rather, it is time to put pride and politics aside and return to the “special relationship” between Canada and the United States in order to effect meaningful and mutually beneficial continental security.     

The politics of Caribbean Straits

Abstract

For a variety of reasons the Caribbean basin has emerged as a particularly volatile region of the Third World with many potential sources of conflict. The expansion of some local navies and intensified competition between the Soviet Union and the United States further complicate a conflict‐prone situation. Many weak states with token navies, including most Caribbean straits states, are highly unstable, being vulnerable both to domestic strife and to international rivalry.

Superpower strategies toward Caribbean straits states have nonetheless remained fairly restrained, although U.S.‐U.S.S.R. competition in this area is intensifying. For example, the Reagan Administration has identified and reacted to alleged global implications of a Soviet bloc threat to Caribbean straits and sea lanes. It will not be easy to wind down this rhetoric, but evidence to the contrary may dissipate public anxiety and lead to cooperative measures to assist in the emergence of a more stable and mutually acceptable regional order, including the Caribbean straits. Constructive cooperation between Caribbean basin states, including their naval and maritime affairs, also could be increasingly important for limiting politicization and militarization of straits.     

Transit rights and U.S. security interests in international straits: The “straits debate”; revisited

Abstract

The issue of transit rights through international straits overlapped by an extension of territorial seas to 12nm was the focal point of intense debate between the United States and straits states during the formative stages of UNCLOS III. Even though the ICNT provisions on transit through straits reflect basic U.S. navigation and security interests, this paper argues that the issue of transit rights through straits is not a dead issue. Straits states may either refuse to ratify a LOS treaty incorporating ICNT provisions on transit passage, or the attempts to obtain a comprehensive LOS treaty may end in failure. In either case, the United States may be forced to accept a right of innocent passage through international straits. The conclusions of this paper are that the security of transit will be determined by political rather than legal considerations, and that U.S. security interests in straits are not undermined by a right of innocent passage.     

The Salish Sea Boundary Straits: “Historic Internal Waters” or Territorial Seas?

The legal classification of the boundary straits of the Salish Sea between the western United States and Canada as either historic internal waters or territorial seas, subject to a right of innocent or transit passage, has been the subject of periodic debate within the U.S. government since the United States and Great Britain entered into the 1846 Oregon Treaty. As neither state has made an express public claim of historic title to the waters, any evidence for such a claim must be sought in less explicit and sometimes conflicting sources. This article applies the United States' legal test for a historic waters claim, recently set out in the U.S. Department of State's analysis of China's claims in the South China Sea, and concludes that the boundary waters of the Salish Sea would not meet that test. Accordingly, the waters of the Salish Sea boundary straits on the United States' side of the international boundary must be considered a territorial sea.     

Drift Diving by Hooded Seals (Cystophora cristata) in the Northwest Atlantic Ocean

Many pinniped species perform a specific dive type, referred to as a ‘drift dive’, where they drift passively through the water column. This dive type has been suggested to function as a resting/sleeping or food processing dive, and can be used as an indication of feeding success by calculating the daily change in vertical drift rates over time, which reflects the relative fluctuations in buoyancy of the animal as the proportion of lipids in the body change. Northwest Atlantic hooded seals perform drift dives at regular intervals throughout their annual migration across the Northwest Atlantic Ocean. We found that the daily change in drift rate varied with geographic location and the time of year and that this differed between sexes. Positive changes in buoyancy (reflecting increased lipid stores) were evident throughout their migration range and although overlapping somewhat, they were not statistically associated with high use areas as indicated by First Passage Time (FPT). Differences in the seasonal fluctuations of buoyancy between males and females suggest that they experience a difference in patterns of energy gain and loss during winter and spring, associated with breeding. The fluctuations in buoyancy around the moulting period were similar between sexes.     

Wide limits and “equitable”; distribution of seabed resources

Abstract

This article discusses some drawbacks of a universally applicable 200‐mile limit for seabed resources in terms of the artificial nature of this limit, the jeopardy to the proposed international regime to govern deep seabed resources, and the views of land‐locked and shelf‐locked countries. Given the uncertain political acceptability of a 200‐mile limit, a systems approach is suggested as a means of devising a compromise solution that would maximize the objectives of: respect of existing internationally agreed conventions; promotion of the rational development of deep seabed resources; provision of equitable distribution of seabed resources and provision of acceptable benefits to all major groups of countries. One possible solution would be to have the limit of coastal jurisdiction over seabed resources defined in terms of the continental margin coupled with a system for sharing the “take”; in the area between 12 miles and the limit of the margin. The share payable to the international seabed authority would increase progressively with the distance of exploitation from the coast but would be moderated by the relative income level of the coastal State.     

Life‐history traits of the Northwest European flora: The LEDA database

Abstract. An international group of scientists is building a ‘trait base’, an open internet database of life‐history traits of the Northwest European flora (LEDA) that can be used as a tool in planning, in nature conservation and restoration, and in other applied research. The species‐trait matrix will comprise referenced information under control of an editorial board, for species of the Northwest European flora, combining existing information and additional measurements. The focus will be on 26 plant traits that describe three key features of plant dynamics: persistence, regeneration, and dispersability. Currently 35% of the species‐trait matrix has been filled; however, as the LEDA trait base consortium aims to deliver a database as complete as possible, all input from the scientific community is welcome.