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

2013; Taylor & Francis; Volume: 44; Issue: 1 Linguagem: Inglês

10.1080/00908320.2012.726832

1521-0642

Suzanne Lalonde, Frédèric Lasserre,

Maritime Security and History

Abstract 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? Keywords: international straitsNorthwest PassageUnited States Notes 1. For example, the United States responded to the adoption of Canada's 1970 Arctic Waters Pollution Prevention Act by making a public statement, "Statement on Government of Canada's Bills on Limits of the Territorial Sea, Fisheries and Pollution," April 15, 1970, 9 I.L.M. 605–606, and sending a Diplomatic Note, "Note from the Secretary of State to Embassy of Canada," April 14, 1970, in Gulf of Maine Pleadings, Vol. 5, Annex 8, to Reply of the United States, 529–530, para. 4, cited in T. L. McDorman, Salt Water Neighbours (New York: Oxford University Press, 2009), 58, fn. 53. Years later, in 1978, a Canadian official acknowledged that a "drawer full of protests" had been received concerning the Arctic Waters legislation. See Erik Wang, director of legal operations, Department of External Affairs, Canada, House of Commons, Standing Committee on External Affairs and National Defence, Proceedings No. 16, April 27, 1978, at 16, cited in T. L. McDorman, "The New Definition of 'Canada Lands' and the Determination of the Outer Limit of the Continental Shelf," Journal of Maritime Law and Commerce 14 (1983): 195, 215, fn. 64. 2. Positing that environmental changes were altering the "geo-strategic dynamics of the Arctic with potential consequences for international stability and European security interests," the Commission of the European Communities released in 2008 an official Communication setting out EU interests and proposals for action by member states in the region. Under Section 3.3 entitled "Transport," member states and the Community are specifically tasked with defending "the principle of freedom of navigation and the right of innocent passage in the newly opened routes and areas." Section 4 of the Communication on "Enhanced Arctic Multilateral Governance" specifically targets the Northwest Passage in its introductory paragraph that highlights unresolved legal issues in the region: "Moreover, there are different interpretations of the conditions for passage of ships in some Arctic waters, especially in the Northwest Passage." Communication from the Commission to the European Parliament and the Council, "The European Union and the Arctic Region," Brussels, 20 November 2008, COM (2008) 763 final, available at eeas.europa.eu/arctic_region/docs/com_08_763_en.pdf (accessed 13 February 2012). The Council of the European Union welcomed the Communication and issued "Council Arctic Conclusions" in December 2009, which provide at Article 16: "With respect to the gradual opening, in the years to come, of trans-oceanic Arctic routes for shipping and navigation, the Council reiterates the rights and obligations for flag, port and coastal states provided for in international law, including UNCLOS, in relation to freedom of navigation, the right of innocent passage and transit passage, and will monitor their observance." Council of the European Union, "Council Conclusions on Arctic Issues," 2985th Foreign Affairs Council meeting, Brussels, December 8, 2009, available at www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/111814.pdf (accessed 13 February 2012). 3. R. Dufresne, "Controversial Canadian Claims over Arctic Waters and Maritime Zones" (2008) Library of Parliament, Ottawa, PRB 07-47E, 2–3; D. R. Rothwell, "The Canadian-U.S. Northwest Passage Dispute: A Reassessment," Cornell International Law Journal 26 (1993): 331; E. Elliot-Meisel, "Politics, Pride and Precedent: The United States and Canada in the Northwest Passage," Ocean Development and International Law 40 (2009): 204; D. Pharand, "The Arctic Waters and the Northwest Passage: A Final Revisit," Ocean Development and International Law 38 (2007): 38; T. L. McDorman, "In the Wake of the 'Polar Sea': Canadian Jurisdiction and the Northwest Passage," Cahiers de Droit 27 (1986): 623; N. C. Howson, "Breaking the Ice: The Canadian-American Dispute over the Arctic's Northwest Passage," Columbia Journal of Transnational Law 26 (1988): 337. 4. See sources in supra note 3. 5. Compromise solutions might include: considering the waters of the Northwest Passage as Canadian internal waters pursuant to Articles 7 and 8(1) of the 1982 LOS Convention, 1833 U.N.T.S. 397, and thus possibly subject to Article 8(2) navigation rights; or that the waters of the Northwest Passage are a mixture of Canadian territorial waters (subject to the right of innocent passage) and exclusive economic zone (freedom of navigation for all ships); or even that the passage does not meet the legal criteria that define a strait used for international navigation. 6. J. Kraska, "The LOS Convention and the Northwest Passage," International Journal of Marine and Coastal Law 22 (2007): 279. 7. J. Kraska, "A Way Out of Diplomacy," Canadian Naval Review 5 (2009): 20; J. Kraska, "International Security and International Law in the Northwest Passage," Vanderbilt Journal of Transnational Law 42 (2009): 1109, 1128. 8. Elliot-Meisel, supra note 3, at 212. 9. Cited in "A Northern Dimension for Canadian Foreign Policy," Canada, Special Joint Committee on Canada's International Relations, Independence and Internationalism: Report of the Special Joint Committee of the Senate and of the House of Commons on Canada's International Relations (Ottawa: Supply and Services Canada, 1986), available at www.carc.org/pubs/v14no4£6.htm (accessed 17 March 2012). 10. Howson, supra note 3, at 373. 11. D. L. Larson, "United States Interests in the Arctic Region," Ocean Development and International 21 (1989): 167, 179. 12. L. Petersen, "International Strait or Internal Waters? The Navigational Potential of the Northwest Passage," Proceedings of the Marine Safety and Security Council, The Coast Guard Journal of Safety at Sea 66 (2009): 48. 13. S. J. Birchall, "Canadian Sovereignty: Climate Change and Politics in the Arctic," Arctic 59 (2006): iv. 14. R. Dube, "As Ice Melts, Debate over Northwest Passage Heats," USA Today, April 4, 2006. 15. C. M. MacNeill, "Gaining Command and Control of the Northwest Passage: Strait Talk on Sovereignty," Transportation Law Journal 34 (2007): 355, 365. 16. Press release no. 121, issued April 15, 1970, quoted by Howson, supra note 3, at 353. 17. "Note from the Secretary of State to Embassy of Canada," April 14, 1970, supra note 1, cited in McDorman, Salt Water Neighbours, supra note 1, at 227, fn. 114. 18. Quoted in McDorman, supra note 3, at 637. 19. B. Mulroney, Memoirs (Toronto: McClelland and Stewart, 2007), 495, quoted in McDorman, supra note 1, at 227, fn. 114. 20. U.S. Department of the Navy, "Strategic Objectives for the U.S. Navy in the Arctic Region," (2010) Ser. N00/100063, available at greenfleet.dodlive.mil/files/2010/09/US-Navy-Arctic-Strategic-Objectives-21-May-2010.pdf (accessed 17 March 2012). 21. Quoted in R. Dube, "As Ice Melts," supra note 14. 22. L. M. Alexander, "Exceptions to the Transit Passage Regime: Straits with Routes of 'Similar Convenience,'" Ocean Development and International Law 18 (1987): 420, quoted in A. Lopez Martin, International Straits. Concept, Classification and Rules of Passage (Heidelberg: Springer, 2010), 63. 23. Cited in K.-L. Koh, Straits in International Navigation: Contemporary Issues (New York: Oceana, 1982), 24–26. 24. S. H. Lay, R. Churchill, and M. Nordquist, New Directions in the Law of the Sea, Vol. 2 (London: Oceana, 1973), 885–891. 25. D. Larson, "Security, Disarmament and the Law of the Sea," Marine Policy 1 (1979): 56. 26. LOS Convention, supra note 5. Described by the president of the Third United Nations Conference on the Law of the Sea as "a constitution for the oceans," the 1982 LOS Convention is today "the globally recognized regime dealing with all matters relating to the law of the sea." See the UN Division for Ocean Affairs and the Law of the Sea (DOALOS) Web site at www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm (accessed 19 April 2011). 27. See, for example, LOS Convention, supra note 5, Article 8(1), for the definition of a coastal state's internal waters; Article 3 in regard to the breadth of the territorial sea; Article 33 for the definition of the contiguous zone; Article 57 with respect to the exclusive economic zone; and Article 76(1) for the definition of the juridical continental shelf. 28. "Au fur et à mesure que l'on s'éloigne de ses côtes, les compétences de l'État diminuent, pour disparaître presque totalement dans la haute mer." P. Vincent, Droit de la mer (Brussels: Éditions Larcier, 2008), 12. 29. LOS Convention, supra note 5, Article 2(1), states: "[t]he sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea" (emphasis added). 30. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Reports, 14, at 111, para. 212 (emphasis added). 31. "La présomption est dans le sens de l'ouverture des ports; mais présomption et non obligation." G. Gidel, Le droit international public de la mer, Book 2 (Châteauroux: Établissements Mellottée, 1932), 45, quoted in L. Lucchini and M. Voelckel, Droit de la mer, Book 2, Vol. 2 (Paris: Pédone, 1990), 287, fn. 598. 32. LOS Convention, supra note 5, Article 7, provides that a coastal state can resort to the use of straight baselines only "[i]n localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity…." In its 1951 decision in the Anglo-Norwegian Fisheries Case, the International Court held that the use of straight baselines was permitted in only two geographically defined circumstances: "Where a coast is deeply indented and cut into, as is that of Eastern Finmark, or where it is bordered by an archipelago, such as the 'skjaergaard' along the western sector of the coast here in question, the base-line becomes independent of the low-water mark, and can only be determined by means of a geometrical construction." Fisheries Case (United Kingdom v. Norway, [1951] I.C.J. Reports, 116, at 128–129. 33. In the Anglo-Norwegian Fisheries Case, supra note 32, the International Court considered three criteria in evaluating the legality of Norway's straight baseline system. These criteria were subsequently integrated in LOS Convention, supra note 5, Article 7. Paragraph 3 of Article 7 stipulates that the "drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast [the general direction criterion]," "and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the régime of internal waters [the close line between land and sea criterion]." Paragraph 5 of Article 7 provides, however, that where the threshold geographical criteria have been met, "account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and importance of which are clearly evidenced by long usage [the economic interests criterion]." 34. See J. A. Roach and R. W. Smith, United States Responses to Excessive Maritime Claims, 2nd ed. (The Hague: Martinus Nijhoff, 1996). 35. In May 1985, the Canadian government was informed that the U.S. Coast Guard icebreaker USCGC Polar Sea would sail through the Northwest Passage at the beginning of August on its way home to Seattle from Thule, Greenland. In the exchange of Diplomatic Notes that followed, both Canada and the United States reiterated their official positions regarding the status of the Northwest Passage, but eventually came to an agreement that the summer transit by the Polar Sea would in no way prejudice the legal position of either party. See R. Huebert, "Steel, Ice and Decision-Making: The Voyage of the Polar Sea and Its Aftermath: The Making of Canadian Northern Foreign Policy" (PhD thesis, Dalhousie University, 1994). 36. See Territorial Sea and Fishing Zones Act, R.S.C., c. T 7 (1970) (Can.). 37. Canada, House of Commons, Debates, 33rd Parliament, 1st Session, Vol. V (1985), September 10, 1985 (Ottawa, 1985), 6463. 38. Anglo-Norwegian Fisheries Case, supra note 32, at 115. 39. Territorial Sea and Contiguous Zone Convention, 516 U.N.T.S. 205. 40. McDorman, Salt Water Neighbours, supra note 1, at 249. 41. UN Secretariat, "Juridical Regime of Historic Waters, Including Historic Bays," 1962, Doc. A/CN.4/143, Yearbook of the International Law Commission 2 (1962): 1, 23 (emphasis added). 42. D. Pharand, Canada's Arctic Waters in International Law (Cambridge: Cambridge University Press, 1988), 113, stated: "British explorers, beginning with Martin Frobisher in 1576 and ending with those in search of the Franklin expedition in 1859, covered virtually all the waters of the Canadian Arctic Archipelago." 43. See ibid., chap.8, "Historic Waters Applied to the Canadian Arctic Archipelago." 44. M. Byers and S. Lalonde, "Who Controls the Northwest Passage?" Vanderbilt Journal of Transnational Law 42 (2009): 1133, 1154–1155. 45. UN Secretariat, "Juridical Regime of Historic Waters," supra note 41, at 13. 46. Pharand, supra note 42, at 121–125. 47. Territorial Sea Convention, supra note 39. 48. LOS Convention, supra note 5, art.18(2). 49. Ibid., art. 19(1). 50. The activities listed in ibid., Article 19(2), include: any threat or use of force against the sovereignty, territorial integrity, or political independence of the coastal state; the loading or unloading of any commodity, currency, or person; any act of willful and serious pollution; and any fishing activities. 51. Corfu Channel Case, [1949] I.C.J. Reports, 4. 52. Pharand, supra note 3, at 30. 53. Corfou Channel Case, supra note 51, at 28. 54. See R. J. Grunawalt, "United States Policy on International Straits," Ocean Development and International Law 18 (1987): 445, 456; and Kraska, supra note 6, at 274. 55. Corfu Channel Case, supra note 51, at 28. 56. Pharand, supra note 3, at 35. See also R. R. Baxter, The Law of International Waterways (Cambridge, MA: Harvard University Press, 1964) 3; D. P. O'Connell, The International Law of the Sea, ed. I. A. Shearer (Oxford: Clarendon Press, 1982), 497; and R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd ed. (Manchester: Manchester University Press, 1999), 106. 57. Reply of the United Kingdom, Fisheries Case (United Kingdom v. Norway), I.C.J. Pleadings 1951, Vol. II, 555. 58. LOS Convention, supra note 5, art. 42(1). 59. Ibid., art. 44 (emphasis added). 60. Montreux Convention Regarding the Regime of the Turkish Straits, July 20, 1936, 173 L.N.T.S. 214. 61. The Florida Strait or Strait of Havami, which is 90 miles wide, connects the Gulf of Mexico with the Atlantic Ocean. Churchill and Lowe, supra note 56, at 105. 62. Ibid. 63. Ibid. 64. Ibid. 65. Ibid., at 121. 66. Ibid., at 123. 67. LOS Convention, supra note 5, art. 53. 68. Decreto del Presidente della Repubblica 26 aprile 1977, n. 816, available at unmig.sviluppoeconomico.gov.it/unmig/norme/816dpr77.htm (accessed 12 June 2012). 69. A. de Guttry, "The Delimitation of Territorial Waters in the Mediterranean Sea," Syracuse Journal of International Law and Commerce 11 (1984): 377, 397. 70. U.S. Navy Judge Advocate General's Corps and Department of Defense, "Italy," DoD 2005.1-M, Maritime Claims Reference Manual, Washington, DC, 1997, revised June 2005 and June 2008, 315, available at www.dtic.mil/whs/directives/corres/html/20051m.htm. 71. N. Ronzitti, The Law of the Sea and Mediterranean Security, Mediterranean Paper Series 2010 (Washington, DC: German Marshall Fund of the United States, 2010) 9. 72. See T. Scovazzi, "Management Regimes and Responsibility for International Straits, with Special Reference to the Mediterranean Straits," (1995), 19 Marine Policy 137, 151. Scovazzi adds that the Piombino Strait could not qualify for the Messina clause (LOS Convention, supra note 5, Article 38(1)) because seaward of Elba there is a route of similar convenience, but it does not pass through the high seas. This route utilizes the Corsica Channel, another international strait, between the Italian archipelago of Tuscany and the French island of Corsica. In this area the 12-mile territorial seas of France and Italy overlap. 73. W. E. Butler, "Pollution Control and the Soviet Arctic," International and Comparative Law Quarterly 21 (1972): 557; P. Horensma, The Soviet Arctic (London: Routledge, 1991), 113. 74. W. Dunlap, "Transit Passage in the Russian Arctic Straits," Maritime Briefing 1(7) (Durham: International Boundary Research Unit, 1996), 39. 75. "United States Aide-Memoire to the Soviet Union dated June 22, 1965" and "Diplomatic Note dated August 30, 1967" from the United States to the Soviet Union as referenced in U.S. Department of State, "United States Responses to Excessive National Maritime Claims," Limits in the Seas 112, 9 March 1992, 71–73, available at www.state.gov/e/oes/ocns/opa/c16065.htm (accessed 12 June 2012). 76. The Diplomatic Note stated that the U.S. government "… strongly protests the position taken by the Soviet government with regard to the peaceful circumnavigation of the Arctic by the United States Coast Guard icebreakers Edisto and Eastwind," dated August 30, 1967 from the United States to the Soviet Union as referenced in ibid. See also Butler, supra note 73, at 558; and R. D. Brubaker and W. Østreng, "The Northern Sea Route Regime: Exquisite Superpower Subterfuge?" Ocean Development and International Law 30 (1999): 299, 305. 77. Brubaker and Østreng, supra note 76, at 305. See also D. Pharand, "Soviet Union Warns United States Against Use of Northeast Passage," American Journal of International Law 62 (1968): 927, 927–929. 78. Horensma, supra note 73, at 110–112. 79. Ibid. 80. Ibid. 81. Ibid. 82. The United States sent "operational assertions." Department of Defense, "Russian Federation," DoD 2005.1-M, Maritime Claims Reference Manual, supra note 70, at 489; Diplomatic Note 86/82, August 2, 1982; Diplomatic Note 10/86, January 1986. 83. Department of Defense, "Japan," DoD 2005.1-M, Maritime Claims Reference Manual, supra note 70, at 327. 84. U.S. Department of State, "Straight Baseline and Territorial Sea Claims: Japan," Limits in the Seas No. 120 (Washington, DC: U.S. Department of State, 1998), 13. 85. D. Ortolland and J.-P. Pirat, Atlas géopolitique des espaces maritimes (Paris: Éditions Technip, 2010), 220. 86. Ibid. See also Kyodo News, "Japan Left Key Straits Open for U.S. Nukes," Japan Times, June 22, 2009. 87. Kyodo News, "Japan Left Key Straits Open," supra note 86. 88. Department of Defense, "Japan," supra note 83, at 327. 89. "Straight Baseline and Territorial Sea Claims: Japan," supra note 84, at 9. 90. J. A. Roach and R. W. Smith, "Straight Baselines: The Need for a Universally Applied Norm," Ocean Development and International Law 31 (2000): 47, 65. 91. See Z. Gao, "China and the LOS Convention," Marine Policy 15 (1991): 202; M. Carr, "China and the Law of the Sea Convention," Australian Journal of Chinese Affairs 9 (1983): 35, 38; D. Dzurek, "The People's Republic of China Straight Baseline Claim," Boundary and Security Bulletin 4 (1996): 77; K. Zou, "Redefining the Legal Status of the Taiwan Strait," International Journal of Marine and Coastal Law 15 (2000): 255. 92. Declaration of the Government of the People's Republic of China on the Baselines of the Territorial Sea, May 15, 1996, reprinted in UN, Law of the Sea Bulletin No. 32, at 37–40 (1996); U.S. Department of State, "Straight Baseline Claim: China," Limits in the Seas No. 117 (July 19, 1996). 93. Department of Defense, "China," DoD 2005.1-M, Maritime Claims Reference Manual, supra note 70, at 133–134. 94. Ji Guoxing, Asian Pacific SLOC Security: The China Factor, Working Paper No. 10 (Canberra: Sea Power Center, Royal Australian Navy, 2002), 45. 95. D. J. Dzurek, "The People's Republic of China Straight Baseline Claim," Boundary and Security Bulletin 4 (1996): 81. 96. "Straight Baseline Claim: China," supra note 92, at 4–8. 97. Dzurek, supra note 91, at 84; K. Zou, Law of the Sea in East Asia: Issues and Prospects (London: Routledge, 2005), 167. 98. M. Herriman, "China's Territorial Sea Law and International Law of the Sea," Maritime Studies 92 (1997): 16; S. Bateman and C. Schofield, "State Practice Regarding Straight Baselines in East Asia—Legal, Technical and Political Issues in a Changing Environment," presented at the conference "Difficulties in Implementing the Provisions of UNCLOS," organized by the Advisory Board on the Law of the Sea (ABLOS), Monaco, October 16–17, 2008, available at www.gmat.unsw.edu.au/ablos/ABLOS08Folder/Session7-Paper1-Bateman.pdf (accessed 31 January 2011). 99. LOS Convention, supra note 5, Article 38(1), provides that "… if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone or similar convenience with respect to navigational and hydrographical characteristics." In the case of Qiongzhou Strait, ships can bypass Hainan Island to the south. 100. Zou, supra note 97, at 167; Department of Defense, "China," supra note 93, at 126. 101. Guoxing, supra note 94, at 45. 102. Sri Lanka and India agreed on June 26–28, 1974 to the delimitation of a boundary through the "historic waters" of Palk Bay. The Agreement, which came into force on July 8, 1974 has been printed in the Government of India's Notice to Mariners, Edition No. 9, Notices 133 to 156, April 15, 1975; see also "United States Responses to Excessive National Maritime Claims," supra note 75, at 67; Department of Defense, "India," at 275, and "Sri Lanka," 572, DoD 2005.1-M, Maritime Claims Reference Manual, supra note 70; and Martin, supra note 22, at 71. 103. Department of Defense, "India," 275, and "Sri Lanka," 572, supra note 102. 104. Ibid. 105. Ibid. 106. S. Sivalingam, "General Features and Fisheries Potential of Palk Bay, Palk Strait and Its Environs," Journal of National Science Foundation Sri Lanka 33, no. 4 (2005): 225; A. Louchet, La planète océane. Précis de géographie maritime (Paris: Armand Colin, 2009), 158. 107. Department of Defense, "Russian Federation," at 489; "Ukraine," 628, DoD 2005.1-M, Maritime Claims Reference Manual, supra note 70. The Soviet Union already considered the Sea of Azov as internal waters. See J. Darby, "The Soviet Doctrine of the Closed Sea," San Diego Law Review 23 (1986): 685–700. 108. Department of Defense, "Russian Federation," at 489; "Ukraine," 628, DoD 2005.1-M, Maritime Claims Reference Manual, supra note 70; Darby at 108. 109. US Navy Commander's Handbook Annotated Supplement (Washington, DC: Naval War College, 1997), 214. 110. McDorman, Salt Water Neighbors, supra note 1, at 254. 111. Ibid. 112. Ibid., at 257. 113. Ibid. 114. During the Gallipoli or Turkish Straits campaign of World War I, between February19,1915, and January 9, 1916, a joint British and French operation was mounted to capture the Ottoman capital of Russia through the seizure of the Turkish Straits. Naval and later land attempts to seize the straits ended in Allied defeats. See D. Fromkin, A Peace to End All Peace (London: Holt, 2001), 311–315. 115. Montreaux Convention, supra note 60. The parties to the 1936 Montreux Convention are: Turkey, Great Britain, France, the Soviet Union, Bulgaria, Greece, Germany, Yugoslavia, and, with reservations, Japan. 116. The third paragraph of ibid., Article 2, provides that "[p]ilotage and towage remain optional." 117. U.S. Department of State, "Straight Baselines: Turkey," Limits in the Seas No. 32 (Washington, DC: U.S. Department of State, 1971), 4–5. 118. "United States Responses to Excessive National Maritime Claims," supra note 75, at 67. 119. J. Daly, "Tankers, Pipelines and the Turkish Straits," Eurasian Daily Monitor 5(122), June 26, 2008, available at www.jamestown.org/single/?no_cache=1&tx_ttnews[tt_news]=33755 (accessed 1 February 2011). 120. Energy Information Administration, "Turkey: Environmental Issues," March 2000, available at www.nuce.boun.edu.tr/turkey.html. 121. Daly, supra note 119. 122. The vessel traffic separation schemes for the Turkish Straits were subsequently updated in 1998. Turkish Straits Maritime Traffic Scheme Regulations, adopted in 1994, amended in 1998, Official Gazette, 6/11/1998 No. 23515. For the most updated version of the schemes, see International Maritime Organization (IMO), Ships' Routeing, 2010 ed. (London, 2010), B.III, 17–23. 123. J. M. Van Dyke, "TransitPassageThroughInternationalStraits," in The Future of Ocean Regime-Building, eds. Aldo Chicop, et al. (The Hague: Martinus Nijhoff, 2009), 177, 205–206. 124. Ibid. See also N. Űnlű, The Legal Regime of the Turkish Straits (The Hague: Martinus Nijhoff, 2002), 74. 125. Ibid., 204–205; P. Vincent, Droit de la Mer (Brussels : Larcier, 2008), 66. 126. S. V. Pavlyuk, "Regulation of the Turkish Straits: UNCLOS as an Alternative to the Treaty of Montreux and the 1994 Maritime Traffic Regulations for the Turkish Straits and Marmara Region," Fordham International Law Journal 22 (1998): 962. 127. Ibid. 128. Treaty for the Redemption of Sound Dues, March 14, 1857, 116 C.T.S. 357. The Convention for the Discontinuance of the Sound Dues Between Denmark and the United States, April 11, 1857, 116 C.T.S 465. 129. See W. L. Schachte and J. P. A. Bernhardt, "International Straits and Navigational Freedoms," Virginia Journal of International Law 33 (1993): 546; and A. Oude Elferink, "The Regime of Passage of Ships Through the Danish Straits," NILOS Papers Online No. 3, 2, available at www.uu.nl/uupublish/content/straits.pdf (accessed 5 October 2010), and International Journal of Marine and Coastal Law 15 (2000): 555. 130. Royal Decree No. 437 of 21 December 1966, as amended by Decree No. 189 of 19 April 1978. Executive Order No. 242 of May 1 replaced them, amended by Executive Order No. 680 of August 2003. See Department of Defense, "Denmark," DoD 2005.1-M, Maritime Claims Reference Manual, supra note 70, at 167. 131. See Ships' Routeing, supra note 122, at B. I-19. 132. See Ships' Routeing, supra note 122, at G. I-3; and "Order on the Mandatory Ship Reporting System BELTREP and Navigation Under the East Bridge and West Bridge in the Storebælt (Great Belt)," Order No. 488 of 31 May 2007; Navigation Through Danish Waters, (Copenhagen: Danish Maritime Authority & The Danish Maritime Safety Administration, March 2011). 133. Department of Defense, "Finland," DoD 2005.1-M, Maritime Claims Reference Manual, supra note 70, at 227–233; U.S. Department of State, "Straight Baselines: Finland," Limits in the Seas No. 48 (Washington, DC: U.S. Department of State, 1972), 2–6. 134. U.S. Department of State, "Continental Shelf Boundary: Finland-Sweden," Limits in the Seas No. 71 (Washington, DC: U.S. Department of State, 1976), 2. 135. LOS Convention, supra note 5, Article 35, provides: "Nothing in the Part affects: (c) the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits." 136. The Convention Relative à la Non-Fortification et à la Neutralisation des Îles d'land/Convention Relating to the Non-fortification and Neutralization of the land Islands 20 October 1921, original French text of the convention is available at www.kulturstiftelsen.ax/traktater/eng_fr/1921c_fr.htm. The parties are Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Poland, Sweden, and the United Kingdom. A similar separate treaty was concluded between Finland and the Soviet Union in 1940: Treaty Between Finland and the Union of Socialist Soviet Republics Concerning the land Islands, October 11, 1940, available at www.kulturstiftelsen.ax/traktater/eng_fr/1940_en.htm. The 1921 Convention follows a convention signed on March 30, 1856, annexed to the Paris Peace Treaty, the Convention on the Demilitarization of the land Islands: available at mjp.univ-perp.fr/constit/aland1856.htm. The three treaties are still in force and are now considered to be a founding block of international law in the region. The provisions of the treaties include the permanent demilitarization of the islands and a 3-nautical-mile territorial sea around them. No naval force may enter the neutralized zone, but innocent passage across the territorial waters is permitted. See M. Koskenniemi and M. Lehto, "Finland and the Law of the Sea," in The Law of the Sea: The European Union and Its Member States, eds. L. Pineschi and T. Treves (The Hague: Martinus Nijhoff, 1997), 147–148. 137. Van Dyke, supra note 123, at 197. 138. W. Otto Lampe, "The Kiel Canal," in The Baltic Sea: New Developments in National Policies and International Cooperation, eds. R. Platzöder and P. Verlaan (The Hague: Martinus Nijhoff, 1996), 144–145. 139. Ibid. See also Koskenniemi and Lehto, supra note 136, at 132–133; and E. J. Molenaar, "Navigational Rights and Freedoms in a European Context," in Navigational Rights and Freedoms and the New Law of the Sea, eds. D. Rothwell and S. Bateman (The Hague: Martinus Nijhoff, 2000), 33.