Study on the Legal Status of the Arctic Navigation Routes

WANG Danwei

Study on the Legal Status of the Arctic Navigation Routes

WANG Danwei*

The most striking Arctic maritime delimitation dispute,in addition to the surviving controversies of the Barents Sea(Norway vs.Russia)and the Beaufort Sea(Canada vs.the United States),is undoubtedly the legal status of the Arctic Navigation Routes(ANR).①In light of the accelerated melting of Arctic sea ice with global warming,some scientists have optimistically forecasted that ice-free summer might occur within the next thirty years,which would make it possible to open a golden waterway in the Arctic Ocean.Based on the research of scholars in China and abroad,this paper,by dividing the Northwest Passage(NWP)into Route S and Route N,and the Northern Sea Route(NSR)into the Polar Route,the High-latitude Route,the Central Route,and the Coastal Route,attempts to present the idea that the legal status of ANR is not one-folded,and that different routes have different legal status.

NWP;NSR;Legal Status;International Straits Chain

Ⅰ.Water Routes of the Arctic Navigation Routes

A.Water Routes of the NWP

The NWP refers to the channel which,from the east end of the Davis Strait to the west end of the Pacific,passes through the Canadian Arctic Waters,the Beaufort Sea,and the Bering Strait.Actually,the NWP involves a number of straits,among which the most famous is the Parry Channel,compri-sing the Lancaster Sound,the Barrow Strait,the Viscount Melville Sound,and the M’Clure Strait.The 2009 Arctic Marine shipping Assessment(AMSA) proposed five routes:

Route 1:Lancaster Sound—Barrow Strait—Viscount Melville Sound—Prince of Wales Strait—Amundsen Gulf;

Route 2:Same as Route 1 but with substitution of M′Clure Strait for Prince Wales Strait and Amundsen Gulf;

Route 3A:Lancaster Sound—Barrow Strait—Peel Sound—Franklin Strait—Larsen Sound—Victoria Strait—Queen Maud Gulf—Dease Strait—Coronation Gulf—Dolphin and Union Strait—Amundsen Gulf;

Route 3B:A variation of Route 3A;rather than following Victoria Strait on the west side of King William Island,the route passes to the east of the island following James Ross Strait—Rae Strait—Simpson Strait;

Route 4:Similar to Route 3A;rather than following Peel Sound on the west side of Somerset Island,the route passes to the east of the island through Prince Regent Inlet and Bellot Strait;

Route 5:Hudson Strait—Foxe Channel—Foxe Basin—Fury and Heda Strait—Gulf of Boothia—Bellot Strait.

Summarizing the five routes,it is easy to find that the NWP routes could be divided into a South Route and a North Route.The South Route(herein called Route S)starts from the Hudson Strait(connected with the Davis Strait),passes through a series of gulfs and straits in the Canadian Arctic Waters,goes straight through the Amundsen Gulf and enters the Beaufort Sea.The North Route(herein called Route N)starts from the Lancaster Sound(connected with Baffin Bay),passes through the Barrow Strait,the Viscount Melville Sound,and the M′Clure Strait as a shortcut,and enters the Beaufort Sea.①PAME Working Group,AMSA 2009 Report,2009,p.21.

B.Water Routes of the NSR

Of the fifty-eight Northern Sea Routes straits,the critical ones,including the Kara Strait,the Vilkitskiy Strait,the Dmitry Laptev Strait,the Long Strait,and the Bering Strait,are among the high seas,②Li Zhiwen and Gao Juntao,Analysis of the Legal Issue of Arctic Navigation,Law Science Magazine,No.11,2010,p.63.namely the Barents Sea,the Kara Sea,the Laptev Sea,the East Siberian Sea,and the Chukchi Seafrom the west to the east.According to relevant charts from Russia,from the east Barents Sea to the Bering Strait there are four different routes in the NSR, namely the Coastal Route(about 3,500 nautical miles long),the High-latitude Route(about 3,340 nautical miles long),the Central Route(about 2,890 nautical miles long)and the Polar Route(about 2,700 nautical miles long).①Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,p.25.

The Polar Route,nearest to the North Pole,is blocked by the Arctic ice cap,which renders it very difficult to open to navigation.Along the Franz Josef Land Island,the Severnaya Zemlya,the Taymyr Peninsula,the New Siberian Islands,and north of the Wrangel Island,the High-latitude Route is basically located in the Arctic sea,of which only a few segments are navigable,also due to ice blocking.The Coastal Route is the route along the coast line,and some parts of it overlap the Central Route.The most complex route is the Central Route,as follows:(1)enter the Kara Sea,through the Barents Sea—Yugorskiy Shar Strait(at the south of the Vaygach Island),or through the Kara Gate which is between Vaygach Island and Novaya Zemlya;(2)enter the Laptev Sea,through Severnaya Zemlya—Kirov Islands—Vilkitskiy Strait(between Bolshevik Island,which is at the south end of Severnaya Zemlya,and Cape Chelyuskin),or through Severnaya Zemlya—Kirov Islands—Shokalskiy Strait(between Bolshevik Island and October Revolution Island,which is one of the Severnaya Zemlya);(3)enter the East Siberian Sea,through the Dmitry Laptev Strait,which is between the New Siberian Islands and the Russian inland,or through the Sannikov Strait;(4)enter the Chukchi Sea through the Long Strait,which is between Wrangel Island and the Russian inland,and then enter the Bering Sea through the Bering Strait.②PAME Working Group,AMSA 2009 Report,2009,p.23.

Ⅱ.Analysis of the Disputes on the Legal Status of the Arctic Navigation Routes

A.Definition by the States Bordering the Routes

1.Definition by Canada

a.Definition Process

Since the British abdicated sovereignty of the Arctic Islands to Canada in1880,Canadians have been claiming Arctic territorial sovereignty,including sovereignty over the NWP;that is,that the NWPis Canadian internal waters or territorial sea,or waters under Canadian jurisdiction comprising internal waters and territorial sea.This process can be divided into three phases.①Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.108～140.In the first phase,from 1880,when the British transferred the sovereignty to the Canadians,to around 1970,Canada identified the Arctic islands zone as its territory by the legal basis of the Sector Principle.In the second phase,from 1970 to 1985, before the Canadians drew straight baselines,Canada got control over the NWP by expanding the territorial sea to twelve nautical miles,as well as asserting its Historic Title.In the third phase,after 1985,when Territorial Seas and Geographical Coordinates Order,namely Straight Baselines Order,was published,②Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,p.76.the NWP was thereby subsumed into the jurisdiction of Canada.

To Canada,its claim for jurisdiction over the NWP originated from the same claim on the waters of the Canadian Arctic.From the south end of the margin of the North American Continent to the north end of Ellesmere Island, the Arctic Archipelago is a constellation of islands along the Canadian Arctic. These islands and their vicinal waters were called the waters of the Canadian Arctic.Viewed from a map,the NWP crosses the entire waters from east to west.Canada first proposed the Sector Principle in 1907,claiming that the whole zone within the boundaries(longitude line)and the North Pole belonged to the contiguous country,which is taken by Canada as the basis for claiming sovereignty over the Arctic islands.As to sovereignty over the waters,although Canada clearly claimed that the Sector Principle was not used in the water region,in fact,it expanded control over the Arctic waters in an alternative way.Firstly,Canada asserted the waters beyond its coast as internal waters by using historic title,and then consolidated this declaration by using straight baselines.In International Law,using straight baselines to obtain sea sovereignty is more favorable to claimant countries than resorting to historic title;while proof of historic ownership is often controversial,and the starting point and standard of“history”is ambiguous,the method of straight baselines as expressly provided in the UNCLOS is a more accepted and specific proof. Moreover,according to the provision of the UNCLOS,“where the method ofstraight baselines is applicable...account may be taken,in determining particular baselines,of economic interests peculiar to the region concerned,the reality and the importance of which are clearly evidenced by long usage.”①UNCLOS,Art 2(5).That is to say,historic factors may be taken as one of the considerations for delimitation with the straight baseline method.

b.Definition Basis

(a)Sector Principle In 1907,Senator Pascal Poirier proposed the land-based sector principle, upon which Canada based its claimed right of control over the NWP.By that time,the Cabinet of Canada had published two maps:the first was“Exploration in Northern Canada and Adjacent Portion of Greenland and Alaska”(1904), and the second was“Atlas of Canada No.1 Territorial Division”(1906);both took the 141st and 60th meridians as boundary lines.The first map extended those boundaries up to the North Pole,the second one did so as far north as necessary to include all of the northernmost islands.②However,Poirier did not intend to apply the theory to waters,and the Canadian government also did not expose an explicit position to this theory until 1970,when the Arctic Waters Pollution Prevention Act(AWPPA)divided the scope of the waters of the Canadian Arctic by using the meridian method,namely the sector principle,which made its first appearance in an official document.Subsequently,former Prime Minister Trudeau,in his response to the U.S.about its protest against the AWPPA,took a clear stance that the waters among the Canadian Archipelago belonged to Canada.③

(b)Historic Title

The first official Canadian claim of internal waters was made in 1973 when the Bureau of Legal Affairs wrote a letter on the question of historic bays and waters in which it stated:“Canada also claims that the waters of the Canadian Arctic Archipelago are internal waters of Canada,on historical basis,although they have not been declared as such in any treaty or by any legislation.”④In 2002,officials at the Department of Foreign Affairs and International Trade ex-pressed a similar opinion:Based on the historic title,and the fact that no transit rights have ever been recognized in this area,Canada has the exclusive sovereignty over these waters,including the NWP.For Canada,this sovereign status is even more enhanced as the area has been used and occupied by the Inuit who have been living on the overlying ice from time immemorial.①Hugh Kindred,Phillip Saunders,Jutta Brunnee,Robert Currie,Ted McDorman,Armand L.C.Demestral,Karin T.Mickelson,Rene Provost,L.C.Reif,Stephen Toope and Sharon Williams,International Law Chiefly as Interpreted and Ap plied in Canada,7th,Toronto:Montgomery Publication,2006,p.461.In addition,Canada attached a reserved statement when acceding to the UNCLOS,in which it stated:“Canada does not accept any of the procedures provided for in Part XV, section 2,with respect to...Disputes concerning articles 15,74 and 83 relating to sea boundary delimitations,or those involving historic bays or titles.”②Declarations and Statements:Canada,at http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#Canada,25 February 2011.

Whether Canada should undertake the burden of proof for its claim depends on whether the claim is based on legal rights consolidated by history (such as straight baseline theory),or on historic titles.③Liu Huirong and Liu Xiu,Historical Analysis of the Legal Status of the Waters of the Arctic Archipelago,Journal of Ocean University of China(Social Sciences),No.2, 2010,p.4.As the claim is based on historic titles,Canada should undertake the burden of proof.Pharand has created a six-element standard for determining historic waters,④Donat Pharand,Canada’s Arctic Waters in International Law,London:Cambridge University Press,2009,pp.97～106;Liu Huirong and Liu Xiu,Historical Analysis of the Legal Status of the Waters of the Arctic Archipelago,Journal of Ocean University of China (Social Sciences),No.2,2010,p.3.according to which Canada put forward the reasons as follow:

a)Exclusive Rights and Effective Legal Protection

Canadian laws and regulations concerning the waters of the Canadian Arctic cover pollution control,environmental protection,maritime safety,and other aspects,among which the core laws are:the 1997 Oceans Act,which declares a territorial sea of 12 nm from the territorial sea baselines,a contiguous zone adjacent to the territorial sea out to 24 nm from the territorial sea baselines,an exclusive economic zone(EEZ)adjacent to the territorial sea and extending out 200 nm from the territorial sea baselines,and a continental shelf of at least 200 nm or further in the case of an extended continental margin;⑤Directorate-General for Maritime Affairs and Fisheries,European Commission,Sum mary Report of Legal Aspects of Arctic Shipping,2010,p.14.the 1970 ArcticWaters Pollution Prevention Act(AWPPA),which,after its amendment,has extended its applicable scope to the 200 nm EEZ;the 1985 Shipping Act of Canada,which,after its amendment,has extended its applicable scope to the maritime activities beyond 100 nm,and has detailed the enforcement powers related to standards of shipbuilding,navigation operating procedures,and the right of visit,and the right of prescribing specific traffic routes by coastal States.①Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.176～177.

b)Long-term Use and Transit

During the 300 years prior to 1880 when the British abdicated sovereignty of the Arctic Islands to Canada,British explorers and whalers had discovered and visited all the Canadian Arctic Islands.Canadians believe that the demonstration of these activities could be considered the predecessor of the historic title proposition.Besides,Canada started its own northern adventure as soon as it inherited the jurisdiction of the Arctic Archipelago in 1880,for the purpose of consolidating its control over whale catchers and enforcing its jurisdiction.②Donat Pharand,Canada’s Arctic Waters in International Law,London:Cambridge University Press,2009,p.113.Canadian sovereignty over the waters of the Canadian Arctic is also enhanced by a significant history of Inuit habitation and activity.③Robert Dufresne,Controversial Canadian Claims over Arctic Waters and Maritime Zones, Library of Parliament,PRB 07-47E,10 January 2008,p.3.

c)Acquiescence of foreign States

Despite protests from the United States,Japan,and the EC Member States after Canada designated the range of its historic waters,ships from the United States and other foreign states should obtain prior permission issued by the Canadian government before entering the NWP for transit or fishing.Though Canada allows the United States to build meteorological stations on some Canadian arctic islands,the U.S.Navy remains subject to the rules of prior permission.Also,Canada’s environmental control and protection of the arctic waters including the Lancaster Sound have been acknowledged and acquiesced to some extent by the absolute majority of the subjects of international law,including the United States.④Liu Huirong and Liu Xiu,Historical Analysis of the Legal Status of the Waters of the Arctic Archipelago,Journal of Ocean University of China(Social Sciences),No.2, 2010,pp.4～5.

d)Vital Interests

Canada’s vital interests in the Arctic waters are mainly of three kinds:national security interests,aboriginal interests,and environmental interests.Indeed,the existence and development of these interests are widely recognized around the world.①Liu Huirong and Liu Xiu,Historical Analysis of the Legal Status of the Waters of the Arctic Archipelago,Journal of Ocean University of China(Social Sciences),No.2, 2010,pp.4～5.

(c)Straight Baselines

In 1906,Canada claimed Hudson Bay as its historic waters;in 1967,Canada drew straight baselines in Labrador and Newfoundland;in 1969,it drew straight baselines in Nova Scotia,Vancouver Island,and Queen Charlotte Island;in 1970,it extended its territorial sea from three nautical miles to twelve nautical miles by Bill C-203 Act,embracing most of the waters of the NWP as its territorial sea.These three steps laid the foundation for drawing nationwide straight baselines in 1985.②James Kraska,The Law of the Sea Convention and the Northwest Passage,The International Journal of Marine and Coastal Law,Vol.22,No.2,2007,pp.263～264.Following the controversial transit of the U.S. Coast Guard icebreaker CGS Polar Sea in that year,the Canadian Minister of Foreign Affairs announced two measures:(1)the adoption of an Order in Council establishing straight baselines around the Arctic Archipelago,taking effect on 1 January 1986;and(2)the enactment of the Canadian Laws Offshore Application Act,extending the application of federal and provincial laws to offshore areas along the coast.③Hugh Kindred,Phillip Saunders,Jutta Brunnee,Robert Currie,Ted McDorman,Armand L.C.Demestral,Karin T.Mickelson,Rene Provost,L.C.Reif,Stephen Toope and Sharon Williams,International Law Chiefly as Interpreted and Ap plied in Canada,7th,Toronto:Montgomery Publication,2006,p.461.Canada claimed that the waters of the NWP are internal as waters on the landward side of straight baselines.④Robert Dufresne,Controversial Canadian Claims over Arctic Waters and Maritime Zones, Library of Parliament,PRB 07-47E,10 January 2008,p.3.

c.Reserved Jurisdiction over the Disputes

Canada acceded to the UNCLOSin 2003 and made an exclusive declaration about some articles of Part XV concerning the settlement of disputes.Section one provides for the settlement of disputes by peaceful means chosen by the parties concerned,such as consultation and conciliation.Section two provides that where no settlement has been reached by recourse to section one,a dispute should be submitted at the request of any party to the dispute to the court ortribunal having jurisdiction under this section,that is,compulsory procedures entailing binding decisions.Section three provides the limitations and exceptions to applicability of section two.On the basis of Article 298(1),specifically,“when signing,ratifying or acceding to this Convention or at any time thereafter,a State may,without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes”,Canada proposed the reservation of jurisdiction over disputes concerning the interpretation or application of articles 15,74 and 83 relating to sea boundary delimitation,or those involving historic bays or titles.①Declarations and Statements:Canada,at http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#Canada,25 February 2011.

2.Definition by the Russian Federation

a.Definition Process

Similar to Canada,Russia got control of the NSR also in three phases with the passing of three critical domestic laws.The first was“On the Proclamation of Land and Island in the Northern Arctic Ocean as Territory of the USSR”(1926)(hereafter“1926 Border Act”),which delineated Soviet territory along the meridian(E 32°04′35″-W 168°49′30″)to the North Pole.This was the prototype of the sector principle.The second law was the“Statue on the State Boundary of the USSR”(1960),which provided for historic waters and historic straits as Soviet internal waters.The third law was the“List of Geographical Coordinates of the Points Determining the Baselines Position for Measuring the Breadth of the Territorial Waters,Economic Zone and Continental Shelf of the USSR”(1985),which by the method of straight baselines encircled the Kara Strait and Vilkitskiy Strait—the breadth exceeding 24 miles—as internal waters.②Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.212～224.

But different from Canada,Russia,firstly,proposed the concept“historic straits”,which means a type of straits apart from the basic routes of international navigation over a long period but under the control of the coastal State for use,leading to historic bays and waters,and with important economic and military value to the coastal State.③William Elliott Butler,Northeast Arctic Passage,Netherlands:Sijthoff&Noordhoff, 1978,p.87.According to this definition,coupled with diplomatic practice,distinctly the historic straits Russia advocated are the San-nikov Strait,the Dmitry Laptev Strait,the Vilkitskiy Strait,and the Shokalsky Strait.①The historic straits referred to by Russian scholar P.D.Barabolia are the Sannikov Strait, the Dmitry Laptev Strait,the Tartary Strait and the Indreleia strait.Some U.S.International lawyers regard the Juan de Fuca Strait and the Long Island Sound as historic straits.See William Elliott Butler,Northeast Arctic Passage,Netherlands:Sijthoff& Noordhoff,1978,p.87.Secondly,Russia did not encircle the whole Northern Sea Routes as internal waters,but as domestic jurisdictional waters.Domestic jurisdictional waters on a broad sense include the waters not only with complete and exclusive sovereignty like internal waters and territorial sea,but also with sovereign rights like contiguous zone and exclusive economic zone.

b.Definition Basis

(a)Sector Principle

The Soviet Union delineated its national boundary by meridian lines under the 1926 Border Act,which expressly provided that this method applied to land and islands only.②Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.212～224.Textbooks of the Soviet Union in 1974 also pointed out that except for internal waters,historic waters,and territorial sea,the remaining parts in the sector region are high seas.③Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.212～224.This means that not all of the waters in the region are Soviet internal waters.The Soviet government had never officially announced recognition of the sector principle,nor did the government ever officially claim sovereignty over the waters in the sector region.④Though the 1926 Border Act of the USSR proclaimed that all lands and islands,both discovered and which may be discovered in the future,located up to the North Pole between the meridian 32°04′35″E and the meridian 168°49′30″W,to be territory of the USSR,yet a legal scientist of the Soviet Commisariat of Foreign Affairs Pashukanis explained that the decree only provided for the claims of the USSR for territories discovered and which would be discovered in the future,which did not mean that the USSR acknowledged the boundary of the arctic sector.But in the practice of negotiating with other countries over the maritime border,the Soviet Union had used the sector principle as a convenient way for division.For instance,in the dispute over the Chukchi Sea with the United States,the borders were actually in line with the eastern sector lines of the Soviet Union.⑤Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.216～217.

The Soviet sector principle was mainly active in academia.Soviet scholar V.L.Lakhtine proposed the vertical sector principle in his monograph Rightsover the Arctic Region.Namely,for Arctic countries,their sovereignties extended to all of the space of sector regions,including airspace.①Leonid Timtchenko,The Russian Arctic Sectoral Concept:Past and Present,Arctic,Vol. 50,No.1,1997,p.30.

Despite its opposition against seven other countries’sectoral division of the Antarctic,Russia strongly defended its own interests in the arctic sector region.For example,in 2007 Russia inserted a flag into the Arctic seabed and then claimed its rights over the continental shelf in the sector region.②Xinhuanet,Russia’s Flag Inserting Gives Rise to Contention for the Actic,at http:// news3.xinhunanet.com/world/2007-08/06/content_6481294.htm,5 April,2011

(b)Historic Title

Soviet claims for historic rights over arctic waters were first proclaimed in diplomatic statements and then fixed by domestic laws.For instance,in the case of the White Sea,in 1920 the Soviet Union announced the White Sea as its internal sea in a diplomatic note to Norway,and then in 1956 encircled the White Sea as its historic sea in the Handbook of the Soviet Union Law of the Sea.In the case of the Dmitry Laptev Strait and the Sannikov Strait,in 1964 the Soviet Union claimed them as historic straits to the United States,and then in 1966 asserted this in the Handbook of the Navy International Law.In the 1993 National Frontier Act,Russia reaffirmed its historic rights to the Arctic straits and announced that a list of historic waters was available.③Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.220～221.Some Russian scholars believed that the Kara Sea,the Laptev Sea,the East Siberian Sea, and the Chukchi Sea were all historic waters.

According to the six elements put forward by Pharand,the historic-rights basis of Russia is nothing less than the following:

a)Exclusive Rights and Effective Legal Protection

The Northern Sea Routes Regulations of Russia refers to waterway control,waterway service charges,environmental protection,research,salvage,and some other aspects.In addition,Russia also exercises criminal and civil jurisdiction over the NSR.④Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.260～267.In 1971,the Soviet Union established the Administration of the Northern Sea Routes(ANSR)under the Statute of the Administration of the Northern Sea Route.For the specific implementation of this Act,it formulated another Act in 1975,namely the Regulations on the Marine Opera-tions Headquarters on the NSR,which provided that the enforcement agency to manage the activities in the NSR was the Marine Operations Headquarters (MOH).The 1991 Regulations for Navigation on the Seaways of the Northern Sea Routes provided that the NSR was open to all countries and ships without discrimination,including warships.But many restrictive conditions were set up for passage:for instance,the ANSR must be given prior notice and the passage must be subject to the command of the MOH under the ANSR;ships must be piloted by pilots arranged by the ANSR.In addition,the waterway service charges system violated the“due regard to navigation”and non-discriminatory principle stipulated in article 234 of the UNCLOS.

b)Long-term Use and Transit

The strategic importance of the NSR began from the 1904 Russo-Japanese War.This channel helped the Russian fleet reach the Far East speedily and with low risk.During World WarⅡ,the NSR even became an important channel for U.S.and British allies to supply the Soviet Union.The NSR was also an economic passage to transport timber,oil,and other supplies for domestic trade.In the peak shipping period from the 1950s to the 1980s,around 400 icebreakers traveled through the NSR.The threshold of shipping traffic in 1987 was as high as 6.6 million tons.①Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,p.235.

c)Acquiescence of foreign states

The Soviet Union maintained that the waters or straits of the NSR had never been used for international navigation without its special escort services.②William Elliott Butler,Northeast Arctic Passage,Netherlands:Sijthoff&Noordhoff, 1978,p.87.But in fact,compared with Canada the Soviet Union was in a more inferior position in terms of acquiescence of foreign states.The four historic straits the Soviet Union claimed were all challenged by the United States or other countries at some point in history.③Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,p.219.

d)Vital Interests

To Russia,the NSR has security,economic,and other important strategic value,and in addition,the area is the best submarine-launch base for Arctic nuclear submarines because the ice sheet can block satellite detection.50%of Russian strategic missiles are carried by northern fleet nuclear submarines.

The NSR is also a critical resource transport channel linking the Arctic region and the Siberian region.①Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.188～194.

(c)Straight baselines

In order to seek legal support more effective and explicit than historic titles,the Soviet Union drew straight baselines in its arctic waters,including archipelagic strait straight baselines and coastal straight baselines.For instance, the Vilkitskiy Strait is enclosed in the west by a 60.1 mile long straight baseline,and the main baseline at the eastern entrance is 42 miles long.The Shokalsky Strait is enclosed at the western entrance by 27.2 and 26.8 mile long baselines,and in the east by a 27 mile long baseline.Across the Sannikov Strait,the baseline is 36 miles long in the west and 44 miles long in the east. Across the Dmitry Laptev Strait,the baseline is 32 miles long in the west and 30 miles long in the east.The Kara Gates Strait has baselines 29 miles long at the western entrance and 32 miles long at the eastern entrance.②R.Douglas Brubaker,The legal Status of the Russian Baselines in the Arctic,Ocean Development&International Law,Vol.30,Issue 3,1999,p.207.

c.Reservation of Jurisdiction over the Disputes

The Soviet Union acceded to the UNCLOS on December 10,1982.On March 12,1997,Russia made an exclusive declaration similar to Canada’s:“With respect to disputes concerning the interpretation or application of articles 15,74 and 83 of the Convention,relating to sea boundary delimitations,or those involving historic bays or titles,it does not accept the procedures,provided for in section 2 of Part XV of the Convention.”③Declarations and Statements:Russian Federation,at http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#Russian Federation Upon Signature, 25 February 2011.

B.Definition by the User States

Many User States oppose that the NWP is Canadian Internal Waters.As provided by the UNCLOS,ships of all States enjoy the right of passage.Accordingly,there are two possibilities to identify the status of waters:where the establishment of a straight baseline has the effect of enclosing as internal waters areas which had not previously been considered as such,a right of innocent passage shall exist in those waters under the reserved rights;and where theNWP becomes an International Strait as time goes by,a right of transit passage shall be given to other states.①Robert Dufresne,Controversial Canadian Claims over Arctic Waters and Maritime Zones, Library of Parliament,PRB 07-47E,10 January 2008,p.2.The opposition of the United States and the European Union is the most noteworthy.②The objections to Canada’s claims for the NWPin European countries are mostly raised by scholars,but such objections have rarely been written.A relevant article is“Climate Change and Canadian Sovereignty in the Northwest Passage”written by Rob Huebert. See Robert Dufresne,Controversial Canadian Claims over Arctic Waters and Maritime Zones,Library of Parliament,PRB 07-47E,10 January 2008,p.8.They believe that simply the requirement“acquiescence of the foreign states”could make it impossible for Canada and Russia to take the control of the NWP and the NSR as their domestic waters.

1.Definition by the U.S.A

The United States believes that the freedoms of navigation and overflight are in line with international customary law.③James Kraska,The Law of the Sea Convention and the Northwest Passage,The International Journal of Marine and Coastal Law,Vol.22,No.2,2007,p.269.The principle of navigation freedom is also one of the“Wilson 14”.In addition,the United States is against the so-called ice territory,and dismisses it as impractical because the connection point of ice and water cannot be taken as starting point to draw territorial baselines due to the constantly changing location and shape of the ice.④James Kraska,The Law of the Sea Convention and the Northwest Passage,The International Journal of Marine and Coastal Law,Vol.22,No.2,2007,p.270.With regard to the status of ice in international law,see Christopher C.Joyner,The Status of Ice in International Law,in Elferink A.G.Oude and D.R.Rothwell,ed.,The Law of the Sea and Polar Maritime Delimitation and Jurisdiction,The Hague:Martinus Nijhoff Publishers, 2001,pp.23～48.

The United States insists that the NWP is an International Strait.Voyages made by S.S Manhattan(1969-1970)and CGS Polar Sea(1985)have exacerbated the conflict between the United States and Canada on this issue. The United States cited the judgment of the International Court of Justice (ICJ)for support,arguing that the international usage of a strait has nothing to do with traffic volume.⑤See Michael Byers,Intent for a Nation:What Is Canada for:A Relentlessl y Optimistic Manifesto for Canada’s Role in the World,Vancouver:Douglas&Mclntyre Ltd,2007.Additionally,the United States opposed the proposition that the“use”in the term“used for international navigation"only means“actual use”by arguing that the“potential use”of the NWP for internationalnavigation could make it an international strait.①Donald Mcrae,Arctic Sovereignty?What Is at Stake?,Behind the Headlines,Vol.64, 2007,p.15.Therefore,S.S Manhattan and CGS Polar Sea were sailing in international straits without having to obtain prior consent from Canada.

In 1988,for the needs of negotiating the Free Trade Agreement,the United States and Canada shelved differences on the issue temporarily and developed the Arctic Cooperation Agreement.It was agreed that American icebreakers shall pass the NWP subject to the consent of the Canadian government.Except for this point,the agreement failed to alter the positions of the two states concerning the arctic waters.The current U.S.ambassador to Canada,David Wilkins,reiterated the view held by the United States over a long period of time:the NWP is an International Strait.②Doug Struck,Dispute Over NW Passage Revived:U.S.Asserts Free Use by All Ships; Canada Claims Jurisdiction,at http://www.washingtonpost.com/wp-dyn/content/article/2006/11/05/AR2006110500286.html,26 March 2011.

2.Definition by the European Union

Among the eight Surround-Arctic Nations(Russia,the United States, Canada,Norway,Finland,Sweden,Greenland(Denmark),Iceland),Finland and Sweden are EU member states,③The EU membership of Denmark has not been granted to Greenland.while Iceland and Norway are parties to the Agreement on the European Economic Area.Therefore,the EU has special interests in the Arctic.“The European Union and the Arctic Region”,a document prepared by the European Commission,fully reflected the EU’s Arctic policy.By interpreting this policy document,we may find that EU Arctic policy centers on environmental protection and resources.The EU attaches great importance to its presence in the Arctic.④The EU and the Arctic Region,at http://ec.europa.eu/maritimeaffairs/arctic_overview_ en.html,25 January 2011.

The EU opposed Canada’s efforts to enclose the whole Arctic Archipelago by drawing straight baselines for the reason that Canada is not an archipelagic state.This act of Canada would affect the judgment of other countries on the legal status of the NWP.⑤Rob Huebert,Climate Change and Canadian Sovereignty in the Northwest Passage,at http://www.navyleague.ca/eng/ma/papers/huebert_e.pdf,26 March 2011.

3.Basis for Definition:International Strait

“There is nothing in the Law of the Sea Convention to suggest additional tests or requirements for recognition as an international strait,so there is noauthority for the idea that a strait is only a strait if it meets a certain minimum threshold of shipping traffic,a specific number of transits,a timetable or regularity of transits,transit by certain types of vessels,or whether the vessel is accompanied or not accompanied by ice-breakers”.Simply put,a strait used for international navigation is a strait connecting one part of the high seas or EEZ to another part of the high seas or EEZ.Unlike innocent passage,transit passage through an international strait may not be suspended by a state bordering the strait.①James Kraska,The Law of the Sea Convention and the Northwest Passage,The International Journal of Marine and Coastal Law,Vol.22,No.2,2007,p.274.

Ⅲ.The Peculiarity of the Legal Status of the Arctic Navigation Routes

A.Absence of Legitimacy of the Theories

1.Sector Principle

The five nations bordering the Arctic Region,Canada,the United States, Denmark,the former Soviet Union,and Sweden,have marked their respective sector regions in accordance with the sector principle,by drawing two straight lines to the North Pole from the east and west ends of their territory bordering the Arctic,which,with the latitude line connecting two territorial ends,frame a sector region.Areas within the sectors are now under the sovereignty of these five nations.Other countries have not adopted new measures and remain skeptical of the propriety of such territorial delimitation or sovereignty claims.②Chen Zhishi,International Law,Taipei:Taiwan Commercial Press,1990,p.178.

The sector principle had obtained some acquiescence before the 1959 Antarctic Treaty was signed.The claimants take sector lines as the so-called“boundary”,but actually they are only deemed a geographical lines,③Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.113～114.and this measure to divide territory has not been recognized by the international community.In 1975,on the question of Western Sahara,the ICJ gave the advisory opinion that,“territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius.”Therefore,this measure to take territorial sovereignty is illegal under the basic principle of moderninternational law.①Shao Jin ed.,International Law(a core textbook for students majoring in law of institutes of higher institutions),2nded.,Beijing:Peking University Press and Higher Education Press,2006,p.105.

2.Historic Title

The claim of historic title has not yet been fully supported by the international community.In 1985,the ICJ rejected both claims of historic title in the case of the Gulf of Maine(the United States vs.Canada).Also,in U.S.domestic courts,it is difficult for such claims to prevail.In the 1975 case of Cook Inlet and the 1986 case of Nantucket Sound,the U.S.Supreme Court rejected the historic title claimed by Alaska and Massachusetts due to insufficient exercise of jurisdiction and absence of special interests,respectively.②United States v.Alaska,422 U.S.184,1975,pp.186～187;United States v.Maine,475 U.S.89,1986,pp.98～101.

Canada must submit evidence of long-term exclusive jurisdiction over the Arctic region and acquiescence of other stakeholder countries.But substantial evidence shows that Canada is at a disadvantage:first,when the British and Canadian explorers claimed sovereignty over the Arctic islands,no one claimed sovereignty over the surrounding waters.Second,it was not until 1973 that Canada used the term“historic title”.Third,this claim was immediately contested by other stakeholder countries.Last,but not least,Canada has not succeeded in forcing all vessels from other countries,especially the United States, to make a prior request for passage.

It is the same case with the NSR of Russia.Some scholars believe that apart from the Sannikov Strait and the Dmitry Laptev Strait,the rest of Russian arctic straits cannot get strong support as historic waters,and therefore foreign ships have the right of innocent passage in these waters.③Liu Huirong and Lin Hui,On Russia’s Legal Control over the NSR,and Its Collision with the UNCLOS,Journal of Ocean University of China(Social Sciences),No.4,2009,p.10.

Under international customary law,receiving the acquiescence of the international community or stakeholders on the issue of historic title is paramount. In the 1951 Fisheries Case(United Kingdom v.Norway),the ICJ pointed out that,as the United Kingdom had no objection to exclusive jurisdiction by Norway during the past two hundred years,it regarded this as acquiescence.Neither Canada nor Russia has received the acquiescence of the international community or stakeholders on the issue of jurisdiction of the NWP or the NSR.④Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,p.221.Thus,their claims for historic title cannot be supported.

3.Straight Baselines

The method of straight baselines is the international customary rule to delimit territorial sea baselines,established by the ICJ in 1951 when dealing with the Fisheries Case.After that,it was included into the UNCLOS as one of the methods to delimit territorial sea baselines.In the Fisheries Case,the ICJ put forward an exception to follow the method of tracéparallèle in the low-water mark rule,and used another method in the following circumstances:where the coastline is broken(deeply indented and cut into,as is that of Eastern Finnmark)or where it is bordered by an archipelago such as the Skjargaard,it can be determined by means of a geometrical construction,which,within reasonable limits,may depart from the physical line of the coast.①United Kingdom v.Norway,Fisheries Case,Judgment of December 18th,I.C.J.Report, 1951,pp.129～130.But it should also be considered that:1.Coastal states shall ponder deeply over the actual and local requirements when adopting this method.Territorial sea shall be closely linked with the mainland,and the baseline may not depart from the general direction of the coast,approximately 20°;②Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,p.222.2.Whether in the state of split or siege,the specific waters and its mainland should have relationship in constitution,and the ratio may not exceed 3.5:1,as provided in the Fisheries Case;③Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,p.222.3.Besides the purely geographical factors,some special economic interests,of which the reality and importance to the specific area are clearly evidenced by long-term practice,should also be reflected.④Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,p.133.According to UNCLOS Article 7(1),“in 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,the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured”.

Among the archipelagic straits affirmed by Russia,the Novaya Zemlya,the Severnaya Zemlya,and the New Siberian Islands are not closely linked with the mainland,nor are they integral.Moreover,the fringes of the islands are rela-tively straight,not deeply indented and cut into the mainland,so the claim of straight baselines is unqualified.In addition,of the territorial straits which the Soviet Union claimed,the Vilkitskiy Strait and the Shokalsky Strait of the Severnaya Zemlya,and the Dmitry Laptev Strait and the Sannikov Strait of the New Siberian Islands,the lengths of the baselines all exceed two times the territorial baseline.①Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.222～223.Though the state party took historic title as support for straight baselines,its claim still failed to gain legitimacy.

Russia has drawn twenty-eight straight baselines for bays and mouths of rivers along the Arctic Ocean,of which only five do not exceed twenty-four nautical miles in length.②Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,pp.223～224.According to UNCLOS Article 10(5),“where the distance between the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles,a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length”.It follows that as a member of the UNCLOS,Russia has,at maximum,only five bays or mouths of rivers along the Arctic mainland coast which conform to the relevant rules.③Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,p.224.

4.International Straits

In terms of the location of the ANR and its importance to international trade,some straits in the channel can indeed be identified as international straits.Applying the functional criterion to the NWP,one is struck by the very low number of transits that have occurred since its discovery.But it is not comparable to that of the Corfu Channel,or of other commonly accepted international straits in terms of traffic volume.Accordingly,the presence of ice in the Passage and the polar weather conditions should,in combination,allow for a lower standard of international navigation volume in order to classify it as an international strait.④Donald R.Rothwell,The Canadian-U.S.Northwest Passage Dispute:A Reassessment, Cornell International Law Journal,Vol.26,1993,p.357.

Overall,neither the NWP nor the NSR is a purely single channel linked by one or several straits,but a region.Classifying the ANR only as international straits is not only blurring the criterion of international straits,but also makingit difficult to justify itself.

B.The Legal Status of the Northwest Passage

In 1970 Canada enacted Bill C-203,an Act to extend the breadth of its territorial sea from three nautical miles to twelve nautical miles,including the Prince of Wales Strait(on the western end of the NWP)and the Barrow Strait (on the eastern end of the NWP)as the Canadian territorial straits.As a result,a circle around the western and eastern ends of the NWP appeared.Foreign vessels are bound to pass through Canadian territorial sea whether sailing by the Barrow Strait along Route N or by the Prince of Wales Strait along Route S.①Guo Peiqing et al,Research on International Issues Concerning the Arctic Navigation Routes,Beijing:Ocean Press,2009,p.74.

Based on the analysis in the first subchapter under the first chapter of this paper,Route N consists of four straits,namely the Lancaster Sound,the Barrow Strait,the Viscount Melville Sound,and the M’Clure Strait.Route S is rather complex,for besides the straits,it also involves gulfs like the Hudson Gulf,the Queen Maud Gulf,and the Amundsen Gulf.The following is a brief analysis of the respective legal status of these two Routes.

1.The Legal Status of Route N

It has not been ruled in the UNCLOS whether an international strait is confined to a single strait,or an International Straits Chain.The criterion for international straits determined by international customary law is also beyond the general understanding of taking geographical factors as the only criterion, by including the functional factor.That means the strait in the geographical sense is not equal to that in the legal sense.The precedent that an international strait comprises two or more straits already exists in the Turkish Straits comprising the Dardanelles Strait and the Bosporus Strait.

This paper argues that Route N should be classified as an International Straits Chain,by taking into account the location that the comprising four straits are closely linked and the ends of the Route are the high seas of the Baffin Bay and the Beaufort Sea.

2.The Legal Status of Route S

If Route N should be classified as an International Straits Chain,then should Route S be considered as having the same status?The answer is not ex-actly so.This paper argues that it must comply with basic common sense if several straits are to be deemed as constituting an International Straits Chain; that is,these straits must be closely linked in geography.Not only are the straits in Route S separated by some bays,failing to form a chain,but also the straits themselves cannot be international straits because they fail to meet the geographical criteria of international straits.The legal status of Route S should be divided into internal waters,territorial sea,contiguous zone,and exclusive economic zone under the UNCLOS.Most parts of the channel are in Canadian internal waters and territorial sea,so the passage of foreign ships will be subject to the specific rules of Canada.But the parts in the exclusive economic zone should be opened to foreign ships for free passage.

C.The Legal Status of the Northern Sea Routes

1.The Legal Status of the Polar Route and the High-latitude Route

The Polar Route is adjacent to the North Pole and is completely in the Arctic high seas,out of the jurisdiction of Russia,so it shall be governed by the principle of freedom of navigation.

Located on the northern side of the Russian northern islands,the High-latitude Route is basically in the Arctic high seas.However,if a vessel goes along the coast,it may be in the jurisdictional waters of Russia,including territorial sea.

2.The Legal Status of the Central Route and the Coastal Route Should the Central Route and the Coastal Route be classified as International Straits Chains?In accordance with the analysis of Route S,the answer is,of course,no.The Coastal Route is along the Russian mainland coastline,so it is basically in its internal waters or territorial sea.

Compared to Route S,the straits in the NSR are more dispersed,being cut off by five seas.But the difference is that these straits are international,for their ends are connected to the high seas(Russia has insufficient evidence for historic title to the five seas).So,the Central Route includes an international part and a non-international part.Besides waters under national jurisdiction like internal waters and territorial sea,the non-international part has high seas. For convenient passage,the Central Route should have some international character,and the coastal States could facilitate the passage by traffic separation schemes.

Article 22 of the UNCLOS provides that,where necessary and having re-gard to the safety of navigation(in particular tankers,nuclear-powered ships), the coastal State may designate traffic separation schemes in the territorial sea. But in the prescription of sea lanes,the coastal State shall take into account factors including channels customarily used for international navigation,the special characteristics of particular ships and channels,and the density of traffic.This provision shall be applied to the waters of the non-international straits of the ANR.

Meanwhile,Article 41 of the UNCLOS provides that States bordering straits may designate sea lanes and prescribe traffic separation schemes for navigation in straits where necessary.Though the“necessary”circumstances have not been listed,considering the fragile ecological environment in the Arctic and the particular equipment required for a ship to pass the ANR,it is very necessary to set traffic separation schemes in the Arctic straits.

Considering the special natural environment in the Arctic,Article 234 of the UNCLOS permits the coastal States to set ice-covered areas in the exclusive economic zone.For foreign ships sailing in this region,the coastal State can increase the requirements on vessel design,construction,manning,and equipment compared with the general international rules and standards.①Gong Yingchun,Research on the Jurisdiction in Exclusive Economic Zone-Particular Area,Ice-covered Zones and Particularly Sensitive Sea Areas,China Oceans Law Review, No.2,2009,Issue 10,p.8.

Ⅳ.Conclusion

So far,arctic shipping activities remain regional,being mainly concentrated in the Canadian arctic waters,waters surrounding Greenland in summer,and part of the NSR,and arctic ships are mostly engaged in scientific research,oil and gas exploration,and tourism.②Directorate-General for Maritime Affairs and Fisheries,European Commission,Sum mary Report of Legal Aspects of Arctic Shipping,2010,p.5.But there is no doubt that the commercial value of the area will be immeasurable in the future.By the time the ANR is open,travel time from Japan to the Netherlands will be cut by half.Moreover, ships traveling through the NWP will not be limited to the maximum size currently permitted through the Panama Canal,so-called Panamax Ships.③Keith Fraser,Canada’s Legal Claims to the Arctic,at http://www.thecanadvocate.com/ 2009/12/10/canadas-legal-claims-to-the-arctic/,25 January 2010.In addition,it will change today’s world trade structure and political and economic patterns,shaping a super Surround-Arctic Ocean economic circle mainlycomprising Europe,North America,and Russia.①Guo Peiqing and Guan Qinglei,Analysis of Political and Legal Issues of NSR,Journal of Ocean University of China(Social Sciences),No.4,2009,p.1.That is to say,the definition of the legal status of the ANR will have a profound impact.To the world,the international trade structure,and political and economic patterns will be affected.To China,the development of three major international shipping centers in its southern,middle,and northern regions will be impacted,particularly the construction of the Shanghai international shipping center.Therefore,it is of great significance to resolve the legal status of the ANR and thus to define the rights of control over them.

(Editor:ZHANG Xin; English Editors:CHEN Xiaoshuang;William Price)

*WANG Danwei,School of Law,Xiamen University.E-mail:vividfish.danwei@gmail. com.