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International Straits and Trans-Arctic Navigation

2012; Taylor & Francis; Volume: 43; Issue: 3 Linguagem: Inglês

10.1080/00908320.2012.698924

1521-0642

Donald R. Rothwell,

Arctic and Russian Policy Studies

Abstract 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. Keywords: Arctic shippinginternational straits Acknowledgments This article was originally presented as a paper at the 2010 Canadian Council of International Law Annual Meeting, Ottawa, Ontario, Canada, 28–30 October 2010. Notes 1. The Geneva Conventions on the Law of the Sea include the four conventions concluded at the 1958 Geneva Conference: the Convention on the Territorial Sea and Contiguous Zone, 516 U.N.T.S. 206; the Convention on the High Sea, 450 U.N.T.S. 82; the Convention on Fishing and Conservation of the Living Resources of the High Seas, 559 U.N.T.S. 286; and the Convention on the Continental Shelf, 499 U.N.T.S. 312. 2. United Nations Convention on the Law of the Sea (LOS Convention), 1833 U.N.T.S. 397. 3. Such as the exclusive economic zone (EEZ), provided for in the LOS Convention, ibid., part V. 4. Ibid., art. 3. 5. Corfu Channel Case (United Kingdom v Albania), Judgment, [1949] I.C.J. Rep. 4. 6. See discussion on the ongoing significance of this decision of the International Court in Karine Bannelier, Theodore Christakis, and Sarah Heathcote, eds., The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (New York: Routledge, 2012). 7. Scott C. Truver, The Strait of Gibraltar and the Mediterranean (Alphen aan den Rijn: Sijthoff & Noordhoff, 1980). 8. Luc Cuyvers, The Strait of Dover (Dordrecht: Martinus Nijhoff, 1986). 9. Ünlü Nihan, The Legal Regime of the Turkish Straits (The Hague: Martinus Nijhoff, 2002). 10. Erik Brüel, International Straits, Vol. 2 (London: Sweet & Maxwell, 1947). 11. Michael Leifer, International Straits of the World: Malacca, Singapore and Indonesia (Alphen aan den Rijn: Sijthoff & Noordhoff, 1978). 12. Stuart B. Kaye, The Torres Strait (Boston: Martinus Nijhoff, 1997). 13. Donald R. Rothwell, "International Straits and UNCLOS: An Australian Case Study," Journal of Maritime Law and Commerce 23 (1992): 461–483. 14. Michael A. Morris, The Strait of Magellan (Dordrecht: Martinus Nijhoff, 1989). 15. Convention on the Territorial Sea and Contiguous Zone, supra note 1, arts. 14–23; LOS Convention, supra note 2, arts. 17–32. 16. LOS Convention, supra note 2, arts. 37–44. 17. See, generally, Donald R. Rothwell and Christopher C. Joyner, "The Polar Oceans and the Law of the Sea," in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, eds. Alex G. Oude Elferink and Donald R. Rothwell (The Hague: Martinus Nijhoff, 2001), 1–22. In recent years, increased attention has been given to the safety of shipping operations in the Southern Ocean; see Julia Jabour, "Maritime Security: Investing in Safe Shipping Operations to Help Prevent Marine Pollution" in Antarctic Security in the Twenty-first Century: Legal and Policy Perspectives, eds. Alan D. Hemmings, Donald R. Rothwell, and Karen N. Scott (London: Routledge, 2012), 238–256. 18. See R. D. Brubaker, The Russian Arctic Straits (Leiden: Martinus Nijhoff, 2005); Leonid Timchenko, "The Northern Sea Route: Russian Management and Jurisdiction over Navigation in Arctic Seas," in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, eds. Alex G. Oude Elferink and Donald R. Rothwell (The Hague: Martinus Nijhoff, 2001), 269–291; and Willy Ostreng, "The Northern Sea Route: A New Era in Soviet Policy?" Ocean Development and International Law 22 (1991): 259–287. 19. There is extensive literature on this issue; see, for example, Ted L. McDorman, Salt Water Neighbours: International Ocean Law Relations Between the United States and Canada (New York: Oxford University Press, 2009), pp. 225–254; Michael Byers and Suzanne Lalonde, "Who Controls the Northwest Passage?" Vanderbilt Journal of Transnational Law 42 (2009): 1133–1210; Donald R. Rothwell, "The Canadian-U.S. Northwest Passage Dispute: A Reassessment," Cornell International Law Journal 26 (1993): 331–372; and Donat Pharand, The Northwest Passage Arctic Straits (Dordrecht: Martinus Nijhoff, 1984). 20. See, for example, Timo Koivurova, "The Actions of Arctic States Respecting the Continental Shelf: A Reflective Essay," Ocean Development and International Law 42 (2011): 211–226; Vladimir Jares, "The Continental Shelf Beyond 200 Nautical Miles: The Work of the Commission on the Limits of the Continental Shelf and the Arctic," Vanderbilt Journal of Transnational Law 42 (2009): 1265–1306; and Mel Weber, "Defining the Outer Limits of the Continental Shelf Across the Arctic Basin: The Russian Submission, States' Rights, Boundary Delimitation and Arctic Regional Cooperation," International Journal of Marine and Coastal Law 24 (2009): 653–681. 21. The first time that consistent reports emerged of the Northwest Passage being ice free was 2007, which coincided with a then record minimum extent recorded for Arctic sea ice. John Roach, "Arctic Melt Opens Northwest Passage," National Geographic News, 17 September 2007, available at news.nationalgeographoc.com/news/pf/38614724.html (accessed 23 December 2011); John Roach, "Arctic Ice at All-Time Low," National Geographic News, 20 August 2007, available at news.nationalgeographoc.com/news/pf/85417840.html (accessed 23 December 2011). 22. See, for example, James Kraska, ed., Arctic Security in a Age of Climate Change (Cambridge: Cambridge University Press, 2011); and Scott G. Borgerson, "Arctic Meltdown: The Economic and Security Implications of Global Warming," Foreign Affairs 87 (2008): 63–77. 23. See, for example, Aldo Chircop, "The Growth of International Shipping in the Arctic: Is a Regulatory Review Timely?" International Journal of Marine and Coastal Law 24 (2009): 355–380; and E. J. Molenaar, "Arctic Marine Shipping: Overview of the International Legal Framework, Gaps, and Options," Journal of Transnational Law and Policy 18 (2009): 289–325. 24. Arctic Council, Arctic Marine Shipping Assessment 2009 Report (Tromsø: Arctic Council, 2009). 25. Ibid., at 4–5. 26. See Molenaar, supra note 23, at 292–293. 27. Chircop, supra note 23, at 356. See also Borgerson, supra note 22, at 70. 28. Chircop, supra note 23, at 357. 29. Corfu Channel Case, supra note 5, at 28. 30. Ibid., at 28. 31. Ibid. 32. International Law Commission, "Articles Concerning the Law of the Sea with Commentaries," Yearbook of the International Law Commission 2 (1956): 273, in which Draft Article 17(4) provided: "There must be no suspension of the innocent passage of foreign ships through straits normally used for international navigation between two parts of the high seas." 33. Ibid. 34. An example is the Bering Strait separating continental Asia and North America. 35. The Dover Strait lies between the continent of Europe and an island of the United Kingdom. 36. The Cook Strait separates the North and South Islands of New Zealand. 37. R. R. Baxter, The Law of International Waterways (Cambridge, MA: Harvard University Press, 1964), 3–4. George K. Walker, "Definitions for the 1982 Law of the Sea Convention—Part II: Analysis of the IHO Consolidated Glossary," California Western International Law Journal 33 (2003): 219, 298, observed that: "The geographic definition of a strait is a narrow passage of water between two land masses or islands, or groups of islands connecting two sea areas." 38. Of which the term channel is in state practice used as an alternate to strait, as in the Corfu Channel. Alternate terms that are used include belt, mouth, and sound. 39. Corfu Channel Case, supra note 5, at 28. 40. Ibid. 41. See Katarzyna Zysk, "Military Aspects of Russia's Arctic Policy: Hard Power and Natural Resources," in Arctic Security in a Age of Climate Change, ed. James Kraska (Cambridge: Cambridge University Press, 2011), 85–106, at 91–94; David W. Titley and Courtney C. St. John, "Arctic Security Considerations and the U.S. Navy's "Arctic Roadmap" in Arctic Security in a Age of Climate Change, ed. James Kraska (Cambridge: Cambridge University Press, 2011), 267–280, at 274–275; and, more generally for incidents during the cold war, W. Harriet Critchley, "Polar Deployment of Soviet Submarines," International Journal 39 (1984): 828–865. 42. LOS Convention, supra note 2, art. 37. 43. Ibid., art. 35(c). 44. Ibid., art. 36. 45. Ibid., art. 38(1). 46. Ibid., art. 45. 47. See Hugo Caminos, "Categories of International Straits Excluded from the Transit Passage Regime under Part III of the United Nations Convention on the Law of the Sea," in Law of the Sea, Environmental Law and Settlement of Disputes, eds. Tafsir Malick Ndiaye and Rüdiger Wolfrum (Leiden: Martinus Nijhoff, 2007), 583–592. 48. LOS Convention, supra note 2, art. 36. 49. See an expanded discussion on this point in Lewis M. Alexander, "Exceptions to the Transit Passage Regime: Straits with Routes of 'Similar Convenience,'" Ocean Development and International Law 18 (1987): 479–491. 50. Ken Booth, Law, Force and Diplomacy at Sea, (Boston: George Allen & Unwin, 1985), pp. 98–99. See also the commentary in "World Oil Transit Chokepoints," Eurasia Review, 20 January 2011, available at www.eurasiareview.com/20012011-world-oil-transit-chokepoints. 51. AMSA Report, supra note 24, at 129 (see also 109). specifically refers to the Bering Strait as a "crucial chokepoint." 52. John Honderich, Arctic Imperative: Is Canada Losing the North? (Toronto, Ontario, Canada: University of Toronto Press, 1987), 93–94. For further assessment of the GIUK Gap and its strategic significance, especially during the cold war, see Hugh Faringdon, Strategic Geography: NATO, the Warsaw Pact, and the Superpowers, 2nd ed. (London: Routledge, 1989), pp. 175–179. 53. AMSA Report, supra note 24, at 18. 54. Erik J. Molenaar and Robert Corell, "Background Paper: Arctic Shipping," Arctic Transform, 12 February 2009, www.arctic-transform.eu (accessed 24 October 2010), distinguish between trans-Arctic and intra-Arctic shipping—the latter being shipping within the confines of the Arctic Ocean along the Northwest Passage and the Northeast Passage/Northern Sea Route. 55. The Greenland Sea is the body of water to the north of Iceland that lies between Greenland and Svalbard, which via the Fram Strait provides access to the Arctic Ocean. The Norwegian Sea is the body of water off the coast of Norway, which between Svalbard and Norway provides access to the Barents Sea and the Northern Sea Route. 56. Likewise the waterway that exists between Svalbard and Franz Joseph Land is not considered in this article for the principal reason that it provides access to the Barents Sea and not to the North Atlantic other than via the Norwegian Sea. 57. Denmark, "Upon Ratification," 16 November 2004, United Nations Division for Ocean Affairs and the Law of the Sea, "Declarations and Statements," available at www.un.org/Depts/los/convention_agreements/convention_declarations.htm (accessed 26 November 2009). 58. The strait also has significant environmental dimensions. See AMSA Report, supra note 24, at 147. 59. John Vidal, "Arctic Sea Ice Melt Ushers in Fast Route for Shipping," The Guardian, 6 October 2011, at 34; "German Ships Blaze Arctic Trail," BBC News, 11 September 2009, available at news.bbc.co.uk/go/pr/fr/-/2/hi/Europe/8251914.stm (accessed 13 September 2009). 60. Honor Mahony, "Arctic Shipping Routes Unlikely to Be 'Suez of the North,'" 6 July 2011, Euobserver, available at euobserver.com/882/32483 (accessed 4 January 2012); Walter Gibbs, "Cargo Ship Embarks on Historic Arctic Passage," 4 September 2010, Reuters (U.S. edition), available at www.reuters.com/article/idUSTRE68318D20100904 (accessed 25 October 2010). 61. Alice Rogoff, "Melting Arctic: Think of the Bering Strait as the Next Panama Canal," Alaska Dispatch, 28 February 2010, available at alaskadispatch.com (accessed 23 October 2010). 62. "NOAA Ship Fairweather Maps Aid Shipping Through Bering Straits," Energy Daily, 22 July 2010, at www.energy-daily.com (accessed 23 October 2010). 63. AMSA Report, supra note 24, at 108. The U.S. ports are Nome, Kotzebue, and the DeLong Mountain Transportation System port that serves Red Dog Mine; the Russian ports are Provideniya, Anadyr, and Egvekinot. 64. There does not appear to be an official name for the body of water that separates the two islands, other than that the waters fall within the Bering Strait. Accordingly in this article, it is referred to as the Diomede Channel. 65. A. R. Thomas and James C. Duncan (eds.), "Annotated Supplement to The Commanders Handbook on the Law of Naval Operations," International Legal Studies 73 (1999): 205, Table A2–3. 66. Agreement Between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, 1 June 1990, International Legal Materials 29 (1990): 941. 67. Elizabeth G. Verille, "United States-Soviet Union," in Jonathan I. Charney and Lewis M. Alexander (Eds.), International Maritime Boundaries, Vol. 1 (Dordrecht: Martinus Nijhoff, 1993), p. 447. 68. Convention Ceding Alaska Between Russia and the United States, 30 March 1867, in ed. C. Parry, 134 Consolidated Treaty Series 331. 69. This part of the 1867 Convention, ibid., also provided for the boundary between St. Lawrence Island and the Russian mainland, which passes through a midway point between the island and Cape Chukotski (Russia). Verille, supra note 67, at 450–451. 70. U.S.-Soviet Union Boundary Agreement, supra note 66, art. 1(2). 71. Ibid., art. 4. 72. This is the case with the 1978 Treaty Between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area Between the Two Countries, Including the Area Known as Torres Strait, and Related Matters (Torres Strait Treaty) [1985] Australian Treaty Series No. 4. 73. Verille, supra note 67, at 452. 74. The Torres Strait (Australia/Papua New Guinea) and the Singapore Strait (Singapore/Indonesia) are significant examples. 75. AMSA Report, supra note 24, at 109, noted that: "150 large commercial vessels pass through the Bering Strait during the July-October open water period, with transits of these vessels most frequent at the beginning (spring) and end of the period (autumn)." 76. The view is also endorsed by the AMSA Report, supra note 24, at 109, which states that: "The Bering Strait region is an international strait for navigation and a natural chokepoint for marine traffic in and out of the Arctic Ocean from the Pacific Ocean." 77. See United States Presidential Proclamation 5928 (27 December 1988) in which President Ronald Reagan stated that: "In accordance with international law, as reflected in the applicable provisions of the 1982 United Nations Convention on the Law of the Sea, with the territorial sea of the United States, … the ships and aircraft of all countries enjoy the right of transit passage through international straits." See, generally, J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims, 2nd ed. (The Hague: Martinus Nijhoff, 1996), pp. 284–285. 78. AMSA Report, supra note 24, at 109. Olin Strader, "A Bering Strait Vessel Traffic Service: Critical Infrastructure for an Opening Arctic (Part I)," The Arctic Institute Center for Circumpolar Security Studies, 6 February 2012, available at www.thearcticinstitute.org/2012/02/1278-bering-strait-vessel-trafc-service.html (accessed 26 February 2012), argued for the establishment of a Bering Strait Vessel Traffic Service. 79. U.S. Department of Homeland Security: United States Coast Guard, "Port Access Route Study: In the Bering Strait," 33 CFR Part 167, Federal Register 75 (No. 215), 8 November 2010. 80. Agreement Between Canada and Denmark Relating to the Delimitation of the Continental Shelf Between Greenland and Canada, 17 December 1973, International Legal Materials 13 (1974): 506. 81. Ibid., art. 1. 82. Lewis M. Alexander, "Canada-Denmark (Greenland)," in International Maritime Boundaries, Vol. 1, eds. Jonathan I. Charney and Lewis M. Alexander (Dordrecht: Martinus Nijhoff, 1993), p. 372. 83. Parts of the Kane Basin are beyond the limits of the Greenland territorial sea. 84. However, there remain reports of submerged submarine transits through the Nares Strait. See Critchley, supra note 41, at 859–861. 85. Canada-Denmark Agreement, supra note 80. 86. Thomas and Duncan, supra note 65, at 205, Table A2–3. 87. Agreement Between Norway and Denmark Together with the Home Rule Government of Greenland Concerning the Delimitation of the Continental Shelf and the Fisheries Zones in the Area Between Greenland and Svalbard, 20 February 2006, reproduced in Alex G. Oude Elferink "Maritime Delimitation Between Denmark/Greenland and Norway," Ocean Development and International Law 38 (2007): 375–380. 88. Thomas and Duncan, supra note 65, at 205, Table A2–3. 89. See, generally, the papers prepared and conference summary of the conference "Breaking the Ice," Akureyri, Iceland, 27–28 March 2007, available at www.arcticportal.org/breaking-the-ice (accessed 24 October 2010). 90. Andrey Proshutinsky, "Sea Ice and Ocean Summary," Arctic Report Card: Update for 2011, 9 November 2011, available at www.arctic.noaa.gov/reportcard/sea_ice_ocean.html (accessed 22 December 2011), which stated that: Sea ice and ocean observations over the past decade (2001–2011) suggest that the Arctic Ocean climate has reached a new state with characteristics different than those observed previously. The new ocean climate is characterized by less sea ice (both extent and thickness) and a warmer and fresher upper ocean than in 1979–2000. … Under the recent persistent anticyclonic circulation regime with relatively warm air temperatures … the summer extent of the sea ice cover has been at least 15–20% below the 1979–2000 average. 91. See, especially, Chircop, supra note 23, at 378, discussing the infrastructure challenge with Arctic shipping. 92. Lawson Brigham, "Navigating the New Maritime Arctic," Proceedings US Naval Institute 135 (5), No. 1275 (May 2009): 42, 45. See also Chircop, supra note 23, at 359, commenting on the perception that the Arctic will be totally ice free: "More realistic is the expectation that a ship navigating in the Arctic can encounter a mixture of open water and different ice regimes." 93. Ibid. 94. Cooperative arrangements that have been put in place between Indonesia, Malaysia, and Singapore to regulate the Straits of Malacca and Singapore are a prominent example. See, generally, Joshua H. Ho, "Enhancing Safety, Security, and Environmental Protection of the Straits of Malacca and Singapore: The Cooperative Mechanism," Ocean Development and International Law 40 (2009): 233–247.