Innocent Passage in the Arctic

Jurisdiction — In general — Territorial — Over foreigners — Whether right of innocent passage affects application of Customs laws to foreigner on board foreign ship calling at port — The law of India.Jurisdiction — In general — Territorial — Over ports and national waters — Whether right of innocent passage affects application of Customs laws to person on foreign ship calling at port — The law of India.State territory — Parts of — Territorial waters — Right of innocent passage — Whether right confers immunity from customs laws on foreign ship calling at port — The law of India.

Internal waters, territorial seas, international straits and archipelagic waters are marine spaces under the territorial sovereignty of the coastal State. However, the use of the marine environment for sea communication necessitates the freedom of navigation through those spaces. Consequently, marine spaces under territorial sovereignty are part of the territory of the coastal State and the highway for sea communication at the same time. The dual nature of marine spaces gives rise to the fundamental question of how it is possible to reconcile the territorial sovereignty of the coastal State and the freedom of navigation. With that question as a backdrop, this chapter will examine the following issues in particular: What is the coastal State’s jurisdiction over foreign vessels in internal waters? How is it possible to reconcile the need to provide refuge for ships in distress and the protection of the offshore environment of the coastal State? What is the right of innocent passage? Do foreign warships enjoy the right of innocent passage through the territorial sea? What is the legal regime of international straits? What is the legal regime of archipelagic waters? What are the differences between the right of innocent passage, the right of transit passage and the right of archipelagic sea lane passage? Introduction This chapter will seek to examine rules of international law governing marine spaces under territorial sovereignty. In this regard, particular attention must be devoted to two issues with regard to the reconciliation between the territorial sovereignty of the coastal State and the freedom of navigation.

The United Nations Convention on the Law of the Sea of December 10, 1982 has supposed a revolutionary change in the regime of straits used for international navigation, which was substantially altered. Although it certainly consolidated some aspects of the legal regime in force up to then, for example, the legal ‘indefiniteness’ of this maritime area or the application of the right of innocent passage, although this applied to only some straits, this did not prevent the introduction of important innovations which entailed a radical change of regime.

The article considers the European Union’s key strategic interests in the increased use of the Arctic routes, especially the Northern Sea Route (NSR), but also the Northwest Passage. This issue is high on the agenda given the EU dependence on the maritime transport accounting for the predominant share of the Union’s trade. The EU technological, financial and human resources can contribute greatly to the development if the Arctic seaways which would in turn benefit the member states. The author notes that the EU has already actively engaged in designing the framework regulation for the Arctic maritime shipping including the legal, environmental and safety provisions. Securing an innocent passage of ships through the Arctic waters is one of the main objectives in this regard considering that none of the EU members are Arctic coastal states. Another issue at stake is delivering Arctic oil and gas reserves highly important for the EU to the continent for which developed seaborne transport is crucial. The article also gives an overview of the EU practical steps with regards to the Arctic routes including projects aimed at connecting the Union’s transport system with the Russian North West and potentially the NSR. It is noted that the EU is highly interested in exploiting the potential of the Arctic sea routes and focuses on international cooperation to achieve the goal. Increased EU cooperation with the Arctic coastal states including Russia would be mutually beneficial given the opportunities the new routes offer and the EU resources that can be used to support their development.

Climate warming has enabled the Arctic region to achieve seasonal navigation, and sea ice concentration is an important factor affecting the navigation of the Arctic waterways. This article uses the Arctic sea ice concentration data of the three highest temperatures in 2016, 2019, and 2020, combined with the Arctic summer sea level pressure, wind field, temperature, temperature anomaly, ice age, and sea ice movement data to analyze the spatial and temporal variation of sea ice and connectivity in the Northeast Passage (NEP) of the Arctic in Summer in three hot years, and summarizes the causes of sea ice anomalies. The results show that: (1) the summer Arctic sea ice extent in 2016, 2019 and 2020 were all lower than the multi-year average sea ice extent, and the summer sea ice extent in 2020 had the largest change trend; (2) in October of these three years, the sea ice was all negative anomalies, extending the opening time of the NEP; (3) when the sea ice concentration was 30% as the threshold, the navigation period of the NEP in 2016 was from mid-August to late October, 2019 was from the beginning of August to mid-October, 2020 was from the end of July to the end of October, and 2020 was the longest year since the opening of the NEP; (4) when the sea ice concentration was 10% as the threshold, the navigation period of the NEP in 2016 was from the end of August to the end of October, 2019 was from early August to mid-October, and 2020 was from the beginning of August to the end of October; (5) the key navigable areas of the NEP in the past three years were the central waters of the East Siberian Sea, the New Siberian Islands and the Vilkitsky Strait; (6) the navigation period of the NEP in 2016, 2019 and 2020 was longer. The main reasons were that the temperature of the NEP in the past 3 years was relatively high, the wind was weak, the sea ice movement had little effect, and the sea ice age in the key navigable areas was first year ice, which was easy to melt, which greatly promoted the opening of the NEP.

China launched its Arctic research program and organized the first Chinese National Arctic Research Expedition (CHINARE-Arctic) in 1999. By 2016, six further expeditions had been conducted using the R/V Xuelong. The main region of the expeditions has focused on the Pacific sector of the Arctic Ocean for sea ice observations. The expeditions have used icebreaker, helicopter, boat, floe, and buoy platforms to perform these observations. Some new technologies have been developed, in particular, the underway auto-observing system for sea ice thickness using an electromagnetic instrument. The long-term measurement systems, e.g., the sea ice mass balance buoy, allow observations to extend from summer to winter. Some international cooperation projects have been involved in CHINARE-Arctic, especially the “Developing Arctic Modeling and Observing Capabilities for Long-Term Environmental Studies” project funded by the European Union during the International Polar Year. Arctic sea ice observations have been used to verify remote sensing products, identify changes in Arctic sea ice, optimize the parameterizations of sea ice physical processes, and assess the accessibility of ice-covered waters, especially around the Northeast Passage. Recommendations are provided as guidance to future CHINARE-Arctic projects. For example, a standardized operation system of sea ice observations should be contracted, and the observations of sea ice dynamics should be enhanced. The upcoming launch of a new Chinese icebreaker will allow increased ship time in support of future CHINARE Arctic oceanographic investigations. Citation: Lei R B, Zhang Z H, Li Z J, et al. Review of research on Arctic sea ice physics based on the Chinese National Arctic Research Expedition. Adv Polar Sci, 2017, 28 (2): 100-110, doi:10.13679/j.advps.2017.2.00100

Introduction As part of the overall process of implementing confidence-building measures (CBMs) in the Asia-Pacific region much attention has been devoted to maritime security and the need to expand and strengthen inter-state co-operation in that domain. This focus on maritime security recognizes of and other as fundamental principles but has failed to properly define the terms and identify their possible contribution as CBMs in their own right. This article aims to bring these issues to the centre of attention, by investigating the rationale for the formulation of a Declaration on in the sea-lanes of the Asia-Pacific(1) as a CBM. The article is divided into three sections. The first section is devoted to examining the relevant navigational regimes according to the 1982 United Nations Convention on the Law of the (UNCLOS) and how the provisions of UNCLOS might be interpreted in order to establish a definition of navigational rights which can be applied in practice. In the second section, the degree of international acceptance of navigational rights, as provided for under UNCLOS, is outlined, with a focus on the countries within the Asia-Pacific and the multilateral fora in the region, such as the Council for Security Cooperation in the Asia-Pacific (CSCAP) and the Workshops on Managing Potential Conflicts in the South China Sea. The third section discusses the advantages and problems associated with a possible declaration of in the region and its contribution as a CBM within the region's overall security processes. Much of the discussion centres on the attitude towards navigational and maritime issues as expressed in declarations by the Association of Southeast Asian Nations (ASEAN), CSCAP and the Workshops on Managing Potential Conflicts in the South China Sea. Defining of Navigation and Navigational Rights: Provisions of UNCLOS As a starting point in the search for a definition of of the text of UNCLOS will be used, originating from Article 2 of the 1958 Geneva convention, applying to the high seas. UNCLOS confirms the right of freedom of navigation on the high seas in Part VII, Section 1, Article 87.(2) Freedom of navigation is also referred to in other parts of UNCLOS but is not explicitly defined, although by implication UNCLOS adopts the definition in the 1958 Geneva convention. UNCLOS also contains sections dealing with navigation through different kinds of water areas. It is necessary to examine the three regime types of innocent passage, transit and archipelagic sea-lanes that may apply to sea-lanes in the Asia-Pacific, and to identify the navigational rights associated with each of these. Part II, Section 3 of UNCLOS is devoted to Innocent Passage in the Territorial Sea and in Article 17 it is stated that Subject to the Convention, ships of all states ... enjoy the right of innocent through the territorial sea.(3) In Article 18, the term passage is defined as the means of navigation through the territorial sea for either of two purposes: first, traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters, and second, proceeding to or from internal waters or calling at such roadstead or port facility. Furthermore, the has to be continuous and expeditious.(4) Article 19 states that to qualify as innocent, the should not be prejudicial to the peace, good order or security of the coastal state: in practice this applies to any activity not having a direct bearing on passage, among them military actions, fishing and environmental pollution.(5) Article 21 spells out the right of coastal states to adopt laws and regulations relating to innocent through the territorial sea.(6) However, According to Article 24, the coastal state shall not hamper innocent through the territorial seas and shall not impose requirements on foreign ships which in practice would deny or impair the right of innocent passage, or discriminate against ships from any particular state. …

A research on the Turkish shipyards in the Arctic: Opportunities and challenges

Bird migration was recorded by tracking radar and visual observation at 23 sites in the region of the Northwest Passage, between Baffin Island and Herschel Island in the Beaufort Sea. The studies took place during a ship-based expedition from 29 June to 3 September 1999. A total of 692 tracks (average duration 160 s) of bird flocks on postbreeding migration were recorded. Eastward migration was widespread, with the highest intensities at three sites in the southeastern Beaufort Sea. Mainly shorebirds were responsible for these movements, migrating along routes similar to great circles towards Nova Scotia and other parts of the Atlantic coast of North America (whence they depart on transoceanic flights towards South America). Some of the birds in this migration system probably originated from Siberia, as indicated by high-altitude eastward migration at a site 100 km north of the coast in the Beaufort Sea. Another category of eastward migrants consisted of jaegers, terns, and red phalaropes traveling towards the Davis Strait region and into the Atlantic Ocean. Southward migration was recorded at Baffin Island. A westward migration was pronounced at King William Island (with simultaneous eastward migration) and Amundsen Gulf, while northward movements were important at Banks Island and Melville Island. Apart from westward moult migration of common eiders at Amundsen Gulf, the westward and northward tracks reflected mainly jaegers, terns, gulls, and red phalaropes. These birds were probably making northward flights to exploit pelagic food resources in waters where the ice had recently broken up before their westward migratory exodus from the Arctic region towards the Pacific Ocean. The mean altitude of migration was 793 m, with 27% of all tracks above 1000 m and a maximum height of 3.95 km. The altitude distribution was clearly lower than those of the corresponding migration in Siberia and the shorebird migration at Nova Scotia. The average ground speed (14.9 m/s) was only slightly faster than the mean air speed (13.8 m/s), and migrants gained in speed from the winds (ground speed exceeding air speed) in only 55% of all cases. This means that wind assistance in the study area was much less pronounced than that documented for the migrants in Siberia and Nova Scotia. Bird migration at the Northwest Passage may be characterized by, on average, lower altitudes, less favourable winds, shorter flight steps, and a more widespread accessibility to stopover sites than migration at the Northeast Passage.

The paper estimates the potential consequences of the development of the Arctic transport route taking into account the melting of polar ice and thus increased navigating time through the seas of the Arctic Ocean. The seas of the Arctic Ocean enable two ways from Europe to South-East Asia. The first one is the Northern Sea Route (the Northern Sea Corridor) around the Arctic coast of Russia and partially through the Pacific Ocean. This is the shortest seaway between Europe and South-East Asia. The second one is the Northwest Passage. It goes along the northern coast of North America through the Canadian Arctic Archipelago. The alternatives to the Northern Sea Route are either through the Suez Canal or via the Trans-Siberian Railway Road. The paper discusses a model of the international transport corridor thereby analyzing the factors that influence the endogenous variable of the model. The basis of the model is an autoregressive distributed lags model (ADL model). The models are estimated for the Northern Transport Corridor, Northwest Passage, Trans-Siberian Railway Road and Transport Corridor of the Suez Canal. While the volume of transported goods was taken as an endogenous variable in all the models, different exogenous variables were selected for each model using data for the period from 1990 to 2013. The paper comprises the results of the standard steps in the ADL model (test for autocorrelation of the endogenous and the exogenous variables; stationarity/non-stationarity analysis of the time series; regression analysis). Finally the paper provides the conclusions regarding the comparison of the Northern Transport Corridor to its alternatives.

Arctic sea ice variation in the Northwest Passage in 1979–2017 and its response to surface thermodynamics factors

A State’s position on international law is “determined by the basic principles of its foreign policy.” Soviet international law scholar Gregorii Tunkin’s statement seems as valid as ever today. Russia’s aggression against Ukraine since 2014, the horrors of Bucha and Russia’s increasingly questionable statements leave little room for imagination that it is a nation that cares little for international law as Western nations see it. While Russia’s approach to international law has received increasing attention in recent years, not all fields of international law have been explored in equal depth. This article intends to put the spotlight on Russia’s evolving approach to one of the bedrock principles of the international law of the sea, the freedom of navigation and its corollary, the right of innocent passage, specifically for warships and government vessels. It will become clear that, rather than following in its footsteps, Russia is in many ways backtracking on the more liberal views developed by the Soviet-Union in its final years and is en route to embracing some modern form of closed seas doctrine.

There were a variety of theories prior to the First World War with regard to the status of the airspace above states and territorial waters. One view was that the airspace was entirely free, another that there was, upon an analogy with the territorial sea, a band of ‘territorial air’ appertaining to the state followed by a higher free zone, a third approach was that all the airspace above a state was entirely within its sovereignty, while a fourth view modified the third approach by positing a right of innocent passage through the air space for foreign civil aircraft. There was a particular antagonism between the French theory of freedom of the air and the British theory of state sovereignty, although all agreed that the airspace above the high seas and terrae nullius was free and open to all.

Guided by insights from international relations theory, this article investigates China’s adherence to the UN Convention of the Law of the Sea (UNCLOS), asking how Beijing’s attitude towards UNCLOS affects China’s role in Arctic governance and beyond. Examining contested Law of the Sea matters – the dispute over the “nine-dash line” in the South China Sea, the right of innocent passage of warships and the role of international arbitration – it argues that China’s compliance with UNCLOS does matter for understanding how China is perceived as a member of the international community. Further, China’s growing interests and enhanced engagement in the Arctic depend on a strong international legal framework; Arctic governance encapsulates the norms of multilateralism and rule of law. The article concludes by asking whether Chinese experiences from observing and participating in the multilateral governance of the Arctic can serve as an example of successful multilateral cooperation and peaceful conflict solution, of relevance to China also in its nearby maritime regions.

UNCLOS recognizes the right of innocent passage in the ocean but grants jurisdiction and governance to the state of the flag the vessel flies. However, by granting the right to determine vessel`s nationality to each country in UNCLOS and by practically consenting inconsistency with the ownership and the state of flag has made the keeping of maritime order quite difficult. Especially, acknowledging the exclusive rights of the flag state on criminal jurisdiction hinders the owner state from exercising its rights and exposes the problem of not taking into account the opinion of the affected state party. This study addresses these issues and examines international regulations on vessels and flag states, mainly UNCLOS, and provides case studies on how criminal jurisdiction is determined when accidents occur at sea. Furthermore, it takes a deeper look into the mutual assistance system in criminal matters and proposes some alternatives on how to overcome these issues.