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The Northwest Passage in International Law

Published online by Cambridge University Press:  09 March 2016

Donat Pharand
Donat Pharand*
Affiliation:
University of Ottawa
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Extract

The Arctic Waters in general and those of the Northwest passage in particular have been conspicuously absent from discussions in the Third Law of the Sea Conference. This does not mean, however, that a Convention of general application resulting from the Conference might not affect their legal status. Indeed, it might be possible to say already that the straits question is virtually settled and that the provisions of the Informal Composite Negociating Text, hereinafter referred to simply as the I.C.N.T., relating to passage through “straits used for international navigation” (Part III) and “archipelagic States” (Part IV), will be adopted without significant substantive changes. There have been no such changes since the Revised Single Negotiating Text of May 6, 1976, and the general consensus is that this issue of straits, once considered so difficult to resolve as possibly to cause failure of the Conference, is now settled.

Type
Articles
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 17 , 1980 , pp. 99 - 133
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1980

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References

1 A/CONF.62/W.P.Rev.1, April 28, 1979.

2 This presumes, of course, that there will not be a general failure of the Conference nor a failure to agree on some specific issue affecting the consensus on, although not necessarily relating to, straits or sea lanes passage.

3 See infra, pp. 125–28, “The Future Use of the Northwest Passage.”

4 For a fuller description, see generally Pilot of Arctic Canada and particularly Vol. I, 2d ed. 1970, at 131–32.

5 Supra note 1, Art. 35, para. c.

6 Brüel, E., International Straits, Vol. I, at 42–43 (1947).Google Scholar

7 Ibid., 43, emphasis added.

8 Ibid., 43, n. 1.

9 Ibid., 43.

10 (1949) I.C.J. Pleadings, Vol. II, at 242.

11 [1949] I.C.J. Rep. 29.

12 Supra note 10, at 354.

13 Supra note 11, at 28.

14 Ibid.

15 Ibid.

16 Art. 17 in (1956) I.L.C. Yearbook, Vol. II, at 258; emphasis added.

17 Fitzmaurice, G.G., “The Law and Procedure of the International Court of Justice: General Principles and Substantive Law,” 27 Brit. Y.B. Int’l L. 28 (1950)Google Scholar ; emphasis added.

18 Supra note 11, at 29.

19 Lapidoth, R., Les détroits en droit international 31 (1972) Google Scholar; emphasis already in text.

20 De Visscher, Charles, Problèmes de Confins en Droit international public 142 (1969).Google Scholar

21 O’Connell, D.P., International Law, Vol. 1, at 497 (2d ed. 1970)Google Scholar ; emphasis added.

22 Can. H.C. Debates, April 17, 1970, at 6015.

23 Standing Committee on Externat Affairs and National Defence, Minutes of Proceedings and Evidence, No. 25, at 18, April 29, 1970.

24 Statements and Speeches, No. 70/3, at 4 (1970).

25 Pharand, D., The Law of the Sea of the Arctic, with Special Reference to Canada 144–79 (1973).Google Scholar

26 Baxter, R.R., The Law of International Waterways 3 (1964)Google Scholar; emphasis added.

27 Economy Light and Power Company v. United States (1921),256 U.S. 113, at 123, quoted by Baxter, ibid., n. 5.

28 Of course, this conclusion holds true only so long as the waters of the Canadian Arctic Archipelago, including those of the Northwest Passage, are not made “internal” by the drawing of straight baselines under the Corfu Channel case or are not proved to be historic waters.

29 Convention on the Territorial Sea and Contiguous Zone, 1958, Art. 16, para. 3.

30 Ibid., Art. 16, para. 4.

31 Ibid., Art. 14, para. 4.

32 See infra, pp. 118–20, “How is the Right of Innocent Passage Applicable to Tankers?”

33 Supra note 1, Art. 19, para. 2(h).

34 Ibid., Art. 25, para. 3.

35 O’Connell, D.P., “Innocent Passage of Warships,” in Law of the Sea , 7 Thesaurus Acroasium 405–51, at 444 (1977).Google Scholar

36 United States v. Conroy 58 F. 2d 1258 (U.S. Court of Appeals, Fifth Circuit), February 23, 1979.

37 Supra note 1.

38 Supra note 29, Art. 14, para. 4.

39 Ibid., para. 3.

40 See Institute of International Law, Resolutions adopted by the Institute at the Edinburg Session, Art. 6, at 8 (1969).

41 For an analysis of the legislation, see supra note 25, at 224–44.

42 Supra note 29, Art. 24, para. 1(a).

43 Supra note 1, Art. 19, para. 2(h).

44 Ibid., Art. 21, para. 1(f).

45 Ibid., para. 2.

46 Ibid., Art. 211, para. 4.

47 See Third U.N. Law of the Sea Conference, Official Records, Vol. X, at 178. This amendment is now part of the revised I.C.N.T. of 1979 and is found in Art. 211, para. 4. This provision still specifies, however, that the regulations of the coastal state must not hamper innocent passage.

48 Supra note 1, Art. 220, para. 2.

49 Ibid., Art. 221.

50 Ibid., Art. 234.

51 Supra note 29, Art. 14, para. 6.

52 Supra note 1, Art. 38, para. 1.

53 Ibid., para. 2.

54 Supra note 1, Art. 39 on transit passage and Art. 53 on sea lanes passage.

55 Ibid., Art. 39, para. 1 (c) ; emphasis added.

56 Ibid., Art. 53, para, 7; emphasis added.

57 This was made very clear by Professor Moore (who had just retired as chairman of the National Security Council Inter-Agency Task Force on the Law of the Sea and Deputy Special Representative of the President for the Law of the Sea Conference) during a seminar given by him at the Institute of International Law of Thessaloniki, in September 1976; the writer attended this seminar.

58 Burke, William T., “Submerged Passage through Straits: Interpretations of the Proposed Law of the Sea Treaty Text,” 52 Wash. L.R. 193–220, at 199 (1977).Google Scholar

59 Ibid., 214.

60 For a discussion of historic waters in the Arctic, see D. Pharand, supra note 25, 99–144.

61 See supra note 1, Art. 8.

62 See Arctic Marine Commerce Study, Vol. III, Executive Summary, COM-73–12004, distributed by National Technical Information Service, U.S. Department of Commerce, at 23 and 26, August 1973.

63 Reported by Langford, John W. in “Marine Science, Technology and the Arctic: Some Questions and Guidelines for the Federal Government,” in Dosman, E.J. (ed.), The Arctic in Question 163–92, at 168 (1976).Google Scholar

64 See 18 Polar Record 356 and 357 (1977).

65 Ibid., 357.

66 Ibid., 358.

67 See Statement of Seatrain Lines, Inc. Concerning Icebreaking Tankers, 7 pages, at 3, dated May 15, 1978; the January study referred to is Conceptual Design of a Nuclear-Powered Icebreaking Tanker Transportation System, dated January 10, 1978, published by Zelvin Levine, Director, Office of Advanced Ship Development, U.S. Maritime Administration and Alvin O. Winall, Manager, Commercial Ship Marketing, Newport New Shipbuilding.

68 Statement of Seatrain, ibid., 5.

69 Ibid.

70 Ibid.

71 Harrison, G.R., “The Need for Action-Oriented Rand D in the Canadian Arctic,” in Marine Transportation and High Arctic Development: Policy Framework and Priorities, Symposium Proceedings, March 21–23, 1980,Google Scholar Montebello, Quebec, published by Canadian Arctic Resources Committee Ottawa, 45–58, at 53 (1979).

72 Ibid., 55.

73 See “Canadian Arctic year-round oil production seen possible in near future,” Globe & Mail, September 15, 1979, at B15.

74 See Federal Environmental Assessment Office, Report of the Environmental Assessment Panel, 127 pages, at 73 (1979).

75 For a description of the various species, see Pimlott, Douglas et al., Oil under the Ice, 178 pages, at 87–88 (1976),Google Scholar published by the Canadian Arctic Resources Committee, Ottawa.

76 Ibid., 85.

77 See supra note 74, at 76.

78 Ibid., 40.

79 Ibid.

80 See Canadian Arctic Resources Committee, Arctic Seas Bulletin, Vol, I, No. 7 (September 1979), which reports that the study will be conducted by an interdepartmental committee chaired by an official of the Department of Indian and Northern Affairs.

81 A visit on the spot in July 1979 convinced me that Petro-Canada is doing its utmost to ensure that not only will it meet the government guidelines, but it will go beyond them if necessary to conduct its drilling activities with maximum safety and minimum risk to the environment.

82 See supra, note 1, Art. 194.

83 R.S.C. 1970 (1st Supplement), c.2.

84 S.O.R./72–303, Canada Gazette, Part II, Vol. 106, at 1468 (August 23, 1972).

85 See Arctic Shipping Pollution Prevention Regulations, S.O.R./72–426, Canada Gazette, Part II, Vol. 106, No. 20, at 1847 (October 25, 1972).

86 See supra note 50.

87 See the reasons advanced in supra, pp. 121–24 “Nature of Passage if Northwest Passage Becomes ‘International’.”

88 See Ministry of Transport, News No. 101/75, August 14, 1975.

89 Leask, George G., “Overview of Arctic Marine Activities of the Canadian Marine Transportation Administration,” in Marine Transportation and High Arctic Development, supra note 71, 30–40, at 33.Google Scholar

90 Ibid., 34.

91 This proposition holds true only so long as the waters of the Northwest Passage are not made “internal” by the drawing of straight baselines around the whole archipelago or are not already internal by the proof of a historic title.