Legal Governance of Navigation in the Arctic Ocean by Dynamic Interpretation and Application of the United Nations Convention on the Law of the Sea 1 ATSUKO KANEHARA PROFESSOR OF PUBLIC INTERNATIONAL LAW SOPHIA UNIVERSITY, FACULTY OF LAW KANEHARA@SOPHIA.AC.JP CHECK AGAINST DELIVERY
I. Introduction 1. Three Phases of the Transition of the Arctic Ocean Phase I: Current Status Navigation of the Arctic Ocean is in an Evaluation and Consideration for Profitability 2 Phase II: the Arctic Ocean is Usable to a Certain Degree and Achieves to a Certain Extent a Status of Consistency the Phase Where Though There Are Extra Associated Costs Due to Existence of Sea Ices for Navigation, Profitability Can Be Assured to a Certain Degree and Consistent Navigational Use Can Be Seen
I. Introduction Phase III: A State Where the Arctic Ocean Is Considered Almost at the Same Level as Normal Waters 3 2. Dynamic Interpretation of the UNCLOS and Application of it to the Arctic Ocean by Reflecting the Phase of the Arctic Ocean at That Time and the Transitional Situations International Recognition and Shared Understanding among Coastal States and Stakeholder States are Required for the Evaluation of the Status of the Arctic Ocean
II. Application of Article 234 of the UNCLOS to the Arctic Ocean 4 1. Article 234 Confirms Special Status of Ice Covered Waters and for the Purpose of Marine Environment Protection It Permits Coastal States Special Jurisdiction 2. Two Goals : Safety of Navigation and Environmental Protection Closely Related to Each Other for the Arctic Ocean More Than for Regular Waters Due to Its Vulnerability to Vessel-Source Pollution Risk of Vessel Accidents Due to Existence of Sea Ices and Other Features in the Arctic Ocean
II. Application of Article 234 of the UNCLOS to the Arctic Ocean 3. Applicability of Article 234: Where Particularly Severe Climate Conditions and the Presence of Ice Covering..for Most of the Year.. 4. Applicability of Article 234 Depending on the Phase of the Arctic Ocean Phase I, Phase II, Phase III Transitional Periods from Phase II to III 5. Evaluation and Assessment of the Change of Status of the Arctic Ocean and Its Reflection in the Application of Article 234 International Consensus and Shared Recognition Required among Coastal States and Stakeholder States 5
III. The Relationship between Article 234 and transit passage system in International Strait Used for International Navigation 1. Applicability of the Transit Passage System for in International Straits to the Arctic Ocean (1) Transit Passage System in International Straits Used for International Navigation (International Straits) Bordering States of International Straits May Not Stop Transit Passage of Foreign Vessels (2) Priority of Coastal State Jurisdiction under Article 234 over Transit Passage System in International Straits In Article 234 Absence of the Phrase None of the Regulations from Section 5 to Here in Anyway Affect the Legal System Which is Applied to International Straits, Which Article 233 Contains 6
III. The Relationship between Article 234 and transit passage system in International Strait Used for International Navigation (3) As Far as Article 234 Applies to the Arctic Ocean as Ice Covered Waters, the International Strait 7 Regime and Transit Passage System do not apply to It. Certification of the Status of International Straits of the Arctic Ocean Has Little Significance. (4) The Arctic Ocean Transitioning from Ice Covered Waters to Normal Waters: Phase I to Phase III When the Arctic Ocean is Transitioning to Normal Waters the Transit Passage System Should Gain Applicability to the Portions of the Arctic Ocean That Have the Status of International Straits
III. The Relationship between Article 234 and the International Strait Used for International Navigation (International Straits) Regime 2. The Two Conditions for International Straits (1) The Geographical Condition (2) The Operational or Practical Condition: Use Actual Use or Potential for Use? 8 Setting up Special Condition of Use Particularly to Be Applied to the Arctic Ocean Considering Its Features and also Its Changing Status from Phase I to Phase III Dynamic Interpretation and Application of the International Strait Regime and the Transit Passage System for the Arctic Ocean
III. The Relationship between Article 234 and the International Strait Used for International Navigation (International Straits) Regime 9 First: Tentatively Permitting International Strait Status to the Portions of the Arctic Ocean Where Potential Navigational Use is Expected, Even in Its Phase I or II Second: Certain Amount of Navigational Use is Required for the Arctic Ocean to Have International Strait Status in the Transitional Period from Phase II to Phase III and at the Stage of Phase III Certification of International Strait Status of the Arctic Ocean Should be Conducted Internationally, not Unilaterally by Coastal States
IV. Use of a Straight Baseline and Declaring the Sea Areas inside the line as Internal Waters 10 1. Article 8 Paragraph 2 of the UNCLOS: If Regions of Sea That Were Originally Territorial Waters Before the Use of a Straight Baseline Becomes Internal Waters, Such Sea Areas Maintain Territorial Water Status. 2. Coastal States Have Drawn Straight Baselines in the Arctic Oceans before Its Becoming State Parties to the UNCLOS Article 8 Paragraph 2 Does Not Have Biding Effect on These States 3. When Coastal States of the Arctic Ocean Established Their Straight Baseline, Was There a International Customary Rule Regarding This Issue,? 4. International Non-Opposability of the Straight Baselines Unilaterally Drawn by Coastal States toward States That
V. Concluding Remarks Points of Critical Importance 11 1. Dynamic Interpretation of the Relevant Provisions of the UNCLOS and Its Application to the Arctic Ocean =Interpretation and Application of the UNCLOS by Reflecting the Particular Features and the Transitional Situations of the Arctic Ocean 2. International Evaluation and Shared Understanding among Interested States of the Status and Situation of the Arctic Ocean
Internationalization and International Governance of the Navigation in the Arctic Ocean Cf. Regionalism Participation and Cooperation of Not Only Coastal States But Stakeholder States Such as Japan and Other User States of the Arctic Ocean 12 Thank you for Your Attention and Patience Really Hope to See All of You Soon Again! Atsuko Kanehara