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WHAT IS THE LEGAL REGIME OF THE ARCTIC?
was signed in 2010
.
The treaty resolved a discord which had lasted 40 years. The
treaty refers to delimitation of the exclusive economic zone and the continental
shelf between both countries. The treaty, in its Article 4, also regulates
fishing
in
the area. In its Article 5 it deals with the exploitation of
hydrocarbon deposits
(crude
oil and gas) that extend across the delaminated continental shelf. If the existence of
a hydrocarbon deposit on the continental shelf of one of the parties is established and
the other party is of the opinion that the said deposit extends to its continental shelf,
the latter party may notify the former party and shall submit the data on which it
bases its opinion. If such an opinion is submitted, the parties shall initiate discussions
on the extent of the hydrocarbon deposit and the possibility for exploitation of the
deposit as a unit. An agreement on the exploitation of the hydrocarbon deposit as a
unit, including its apportionment between the parties, shall be reached at the request
of one of the parties (Article 5, paragraph 2) In case of any disagreement between
the parties concerning such deposits these shall be resolved in accordance with
Articles 2-4 of Annex II. The states shall try to reach agreement by negotiation. If the
disagreement is not settled within six months following the date on which a party
first requested such negotiations with the other party, either party shall be entitled
to submit the dispute to an
ad hoc
Arbitral Tribunal consisting of three members
(Article 3 Annex II). It can be said that the Treaty is a constructive model for the
Arctic states on how to resolve different approaches.
3.2 The issue of navigation in the Arctic
Concerning
navigation
in the Arctic region
various interpretations
of the condition
for navigation in some Arctic waters exist.
38
The so-called Northwest Passage in
particular causes controversy. This is the sea passage along the northern coast of North
America via waterways amidst the Canadian Arctic – the archipelagoes close to Canada,
which connects the Atlantic and Pacific Oceans. It is considered to be the shortest
route connecting Europe and Asia.
Canada considers the waters of the passage its
internal waters
and therefore
not under the right of passage. The USA, on the contrary, considers the navigation
through the Passage the
right of transit passage
and claims it is an international strait
used for international navigation. It is necessary to remark in relation to this that some
delegations at the Third United Nations Conference on the Law of the Sea and some
specialists argued that, according to
customary international law,
the broader right
of
passage through an international strait
which contains the freedom of navigation does
not restrict it by the criterion of “innocent”
39
and, unlike innocent passage, which
refers only to ships, contains also the right to fly over. Some states at the Third UN
news1/Treaty-on-maritime-delimitation-and-cooperation-in-the-Barents-Sea-and-the-Arctic-Ocean-
signed-today/ 15. 9. 2010 (
accessed on
2 September 2013).
38
Commission of the European Communities, Communication from the Commision to the European
Parliament and the Council – The European Union and the Arctic region, COM (2008) 763 final
(20 November 2008).
39
Churchill, R. R. and Lowe, A. V.,
op. cit.
, p. 104.