CYIL Vol. 5, 2014

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.

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