CYIL Vol. 5, 2014

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.

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