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106
JAN ONDŘEJ
CYIL 5 ȍ2014Ȏ
Conference on the Law of the Sea, particularly the USA and Great Britain argued
that the right of transit passage, as it is contained in the UN Convention on the Law
of the Sea, is part of
customary international law.
40
In 1985 an icebreaker of the US Coast Guard completed passage through the
Northern Passage. Canada informed
41
the USA, that it considers the waters of the
Arctic archipelago part of its internal waters, and that it therefore requires
consent for
the passage
. The USA, however, refused, and the conflict between the states was settled
by a treaty which was signed in 1988. According to this Arctic Cooperation Agreement
the United States agreed that navigation of all US icebreakers within waters claimed
by Canada to be internal will be undertaken with the
consent
42
of the Government of
Canada. In Article 4 of this Agreement, however, the parties confirmed their
differing
opinions
(their respective positions regarding third parties)
concerning the
legal regime
of the Northern Passage in disregard of the concluded Agreement.
43
The USA as well as
the European Union have continually challenged Canadian claims.
Canada added
one more argument
44
for application of its national legislation
. In 1985
Canada delineated its straight baselines in compliance with Article 8 of the UN
Convention on the Law of the Sea. According to Brown,
45
nothing inhibited Canada
fromdelineating the straight baselines systemaround its Arctic archipelago.The waters
between these lines and the dry land are considered to be internal waters. According
to Article 8, paragraph 2, 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.
An identical regulation is
contained in the Convention on the Territorial Sea and the Contiguous Zone of
1958. Delineation of straight baselines is considered a manifestation of
customary
international law
. This Canadian approach, however, does not agree with the opinion
of the USA.
46
In the case of an international strait there exists the right of transit
passage as the USA demand it, and this means that submarines could undertake the
transit passage under water, while in the case of innocent passage submarines are
required to navigate on the surface and to show their flag. The fact of submarines
passing some international straits under water seems to be accepted as fulfilling the
requirement of Article 39, paragraph 1c of the UN Convention on the Law of the
Sea to “refrain from any activities other than those incident to their normal modes
of continuous and expeditious transit”. This is at least the interpretation accepted by
coastal states in agreement with
travaux préparatoires
of the Third United Nations
40
Ibid.
, p. 110.
41
Wolfrum, R.,
op. cit.,
p. 535.
42
Churchill, R. R. and Lowe, A. V,
op. cit.
, p. 106.
43
Wolfrum, R.,
op. cit.,
p. 535.
44
Ibid.
45
Brown, E., D.
The International Law of the Sea
. Aldershot: Dartmouth Publishing Company Limited,
1994, p. 124.
46
Ibid.
, p. 536.