topic 7
State Responsibility and the Objective Responsibility Doctrine
The objective responsibility doctrine holds states responsible for the acts of their officials or organs, even without any fault of their own.
This contrasts with the subjective approach, which requires fault or negligence.
The Home Missionary Society Claim (1920)
This case between Britain and the United States adopted the subjective approach.
A local uprising in Sierra Leone, triggered by a 'hut tax', resulted in damage to Society property and the killing of missionaries.
The Tribunal dismissed the claim, stating that a government is not responsible for the acts of rebels if it was not guilty of bad faith or negligence in suppressing the revolt.
This view is specific to state responsibility for the acts of rebels, and its general applicability is questionable.
ILC Articles
The Commentary to the ILC Articles noted that the Articles did not take a definitive position on the controversy between objective and subjective approaches.
Standards for objective or subjective approaches, fault, negligence, or due diligence vary depending on the primary obligation in question.
Territory in International Law
Classification of Territories
Based on legal regime, territories can be classified as:
State Territory: Under the sovereignty of a state.
International (Common) Territories (Res Communis): Not under the sovereignty of any single state and open to use by all states (e.g., high seas, outer space).
No Man's Land Territories (Res Nullius): Capable of being under state sovereignty but not currently claimed by any state.
Territories with Mixed Legal Regimes: Areas where coastal states have special rights alongside international uses (e.g., Contiguous Zone, Exclusive Economic Zone (EEZ), Continental Shelf).
Definition, Composition, and Legal Nature of State Territory
State territory is the area within which a state exercises its sovereign power.
Exercise of Sovereignty involves:
Extending the state's legal norms to the territory.
Jurisdiction of the state's organs within the territory.
State Sovereignty
State sovereignty is exclusive; foreign states cannot exercise sovereign powers within another state's territory.
Russian Federation Constitution (Article 4): Sovereignty of the Russian Federation extends to its entire territory. The Constitution and federal laws have supremacy throughout the Russian Federation. The Russian Federation ensures the integrity and inviolability of its territory.
Exception: Condominium
Condominium: Shared Sovereignty: An exception to exclusive sovereignty is condominium, where two or more states exercise joint sovereignty over a territory by international agreement.
Historical Examples:
British-Egyptian Condominium over Sudan (1898-1956).
Austrian-Prussian Condominium over Schleswig-Holstein and Lauenburg (1864-1866).
Components of State Territory:
Land Territory
Internal Waters
Territorial Sea
Airspace
Subsoil (Underground)
Contested Views on the Extent of State Territory:
"Fictitious" Parts of State Territory (Oppenheim-Lauterpacht - outdated):
Military ships, state vessels, diplomatic residences, and (in some respects) merchant ships were formerly considered "fictitious" parts of state territory. This view is largely rejected by modern international law, which uses different bases for jurisdiction over these objects.
Vertical Extent:
Airspace: Belongs to the state up to approximately 100-110 km altitude.
Subsoil: Two main views:
Unlimited Depth: State owns subsoil to unlimited depths.
Exploitable Depth: State ownership extends to the maximum depth practically exploitable.
Legal nature of the territory
Shift from Territory as Dominium (Property) to Imperium (Jurisdiction)
The author emphasizes the historical evolution of the understanding of state territory. Initially, especially in the medieval period and later, territory was viewed as an object of property (dominium).
This meant it was treated somewhat like private property, subject to transactions and private law principles.
The author highlights the crucial shift in the 18th-19th centuries towards understanding territory as primarily a space of jurisdiction (imperium). This means territory is defined less by ownership and more by the exercise of state power and the application of law.
This shift is attributed to scholars like V.A. Nezabitovsky, who argued that "Territory is not a thing that the state possesses, but the space within which the sovereign power of the state exists and operates."
This emphasizes territory as the limit and scope of state authority, not merely a possession.
State Sovereignty as the Defining Legal Nature
"State territory represents a space, within the limits of which state sovereignty is exercised."
This establishes state sovereignty as the fundamental legal nature of state territory. The exercise of state sovereignty is the legal manifestation of the state's relationship to its territory. It's about the state's ability to apply its laws and the competence of its organs within that space.
The principle of exclusive sovereignty further defines the legal nature – state sovereignty is singular and doesn't tolerate the exercise of foreign state sovereignty within its borders.
The author quotes Bluntschli who reinforces this, stating that "Territorial sovereignty does not include the right of ownership over the territory… Territorial sovereignty falls within the sphere of public law, and property – within the sphere of private law…" This clearly distinguishes the legal nature of state territory as belonging to public law.
Mixed Legal Nature in Modern International Law
While emphasizing the shift towards imperium and public law, the author acknowledges that modern international law regarding territory is mixed. It contains elements of both:
Private Law elements: Perhaps in the historical origins of territorial acquisition or in certain aspects of territorial disputes that might involve property-like concepts.
Public Law elements: Dominant in the modern understanding, focusing on jurisdiction, state authority, and international legal regulations of territorial rights and obligations.
Population as Part of the Legal Consideration
The evolution of the legal nature also includes considering the population residing on the territory. The author points out that territory is no longer just an object of state rights, but also a space where people live.
This introduces a human dimension to the legal nature, requiring consideration of the population's interests, will, and rights (like self-determination and prevention of statelessness) in territorial matters.
State Border
Definition
A state border defines the territorial scope of a state's sovereignty.
The essence of a border is to demarcate the spatial spheres of action of public authority, rather than geographical spaces or social communities. It's about where one state's legal order ends and another begins or international space starts.
As defined by an arbitration court in the Guinea-Bissau v. Senegal case, an international border is "a line connecting the outer points of the area of spatial action of the norms of the legal order of a state."
State borders are distinct from demarcation lines, which are temporary divisions between warring states during an armistice (e.g., Korea 1953, Vietnam 1954).
Methods of Establishment
Unilateral Establishment:
Possible when the border adjoins international space. However, the validity of such a border depends on recognition by other states, which can be tacit (implied through lack of protest).
ICJ Fisheries Case (1951): Delimitation of maritime spaces has an international aspect and cannot depend solely on the coastal state's will. While delimitation is a unilateral act, its validity against third states depends on international law. Lack of opposition from other states can confirm legitimacy.
Bilateral or Multilateral Agreements:
Borders are frequently established through international treaties. The line of the border is fixed in these agreements (Examples: USSR-China 1991, Russia-Estonia 2005, Russia-Kazakhstan 2005, Russia-Lithuania-Poland tripoint 2005).
Judicial Decision:
Borders can be established by court decisions in case of disputes about their coordinates. Territorial disputes are a significant portion of cases before international courts.
Delimitation and Demarcation:
Delimitation: Defining the border line in an international treaty and on a map.
Demarcation: Marking the border line on the ground with border signs, usually by special demarcation commissions.
Classification of State Borders
Based on Factors of Delimitation:
Natural (Orographical/Physical):
Based on natural features of the terrain.
Rivers: Typically along the middle of the fairway (navigable rivers), thalweg (deepest line), or middle of the river. Border changes with river course changes. (ICJ Case concerning Kasikili/Sedudu Island - Botswana v. Namibia, 1999 - border along deepest channel of Chobe River).
Mountains: Along the watershed or connecting highest peaks.
Artificial:
Not based on natural features.
Geometric: Lines connecting two points (straight lines).
Astronomical: Parallels or meridians of latitude/longitude. Common in Africa.
Social:
Based on human settlement patterns, considering locations of settlements, communities, etc.
Historical:
Based on historical factors like past control, settlement, and connections of the population to the claiming state.
Political (Security):
Based on security considerations (Example: Soviet territorial demands to Finland in 1939 for Leningrad's security; Israel's occupation of Golan Heights for security).
Based on Uti Possidetis Juris:
Administrative Borders: In cases of decolonization, state separation, and dissolution, borders are often based on former administrative-territorial boundaries (principle of uti possidetis juris). Considered customary law (Africa, Asia decolonization, USSR, Yugoslavia, Czechoslovakia breakup; ICJ Benin v. Niger 2005).
Regime of State Border (Based on Russian Federation Law Example):
Russian Federation Law "On the State Border of the Russian Federation" (1993) provides a detailed example of a state border regime.
Definition in Russian Law:
State border is a line and vertical surface defining the limits of state territory (land, water, subsoil, airspace), i.e., the spatial limit of Russian sovereignty.
Establishment of Border Line in Russian Law:
Land: Characteristic points, relief lines, or visible landmarks.
Sea: Outer limit of the territorial sea.
Navigable Rivers: Middle of the main fairway or thalweg.
Non-Navigable Rivers/Streams: Middle or middle of the main branch.
Lakes/Water Bodies: Equidistant, median, straight, or other line connecting border exits to shores.
Reservoirs: According to the border line before flooding.
Bridges/Dams: Middle or technological axis of the structure.
Elements of Border Regime (according to Russian Law):
Rules of maintenance and crossing the border.
Rules for movement and passage of persons, goods, and animals across the border.
Regulation of economic activities at or near the border.
Border regime: Rules for entry and stay in the border zone, economic activity in the border zone. Regime in border crossing points. Powers of state bodies in border protection.
Acquisition of State Territory
Legal Title
Definition: A legal title is a juridical fact (treaty, unilateral act, event, or action) serving as the legal basis for a state's sovereignty over a specific territory.
Importance: Establishing legal title is the primary task of international courts resolving territorial disputes, particularly for territories not originally part of a state.
Historical Context: Legal titles can be based on facts from the distant past, and international courts must consider these in the context of the law at the time of the fact, not current law (Palmas Island case - Arbitrator Huber).
Modes of Acquisition of State Territory (Creating Legal Titles)
Occupation:
Applies to Res Nullius (Terra Nullius): "Nobody's land" - territory not under the sovereignty of any state.
Res Nullius Evolution:
Historically: Uninhabited land or land inhabited by people not organized in a state.
18th-19th Centuries: Territories with some social organization were often no longer considered res nullius. Titles could be acquired through agreements with tribal leaders.
Modern View: Res nullius is generally considered to be only uninhabited territory. Inhabited territories without state structures are subject to the principle of self-determination (Western Sahara Advisory Opinion - ICJ).
Effective Control Required: Proclamation of sovereignty alone is insufficient. Occupation requires continuous and effective control, demonstrated by:
Legislation for the territory
Current administration
Jurisdiction over the population, etc.
Context-dependent assessment (Minquiers and Ecrehos case - ICJ; Pulau Ligitan and Pulau Sipadan case - ICJ).
Degree of Control Varies: Less control is needed for remote or sparsely populated territories (Clipperton Island case - Arbitrator's decision). Symbolic annexation can be sufficient for uninhabited territory.
Discovery Alone is Insufficient: Discovery creates only an "inchoate title" - a preliminary basis requiring "effective occupation" within a reasonable time. If effective occupation is not established, the inchoate title lapses, and another state can acquire the territory through effective occupation (Oppenheim-Lauterpacht, Verdross).
Acquisitive Prescription (Prescription/Adverse Possession):
Definition: Peaceful and continuous possession of territory belonging to another state, under certain conditions, can create a title based on prescription over time.
Conditions for Title by Prescription:
Possession à titre de souverain (acting as sovereign).
Uncontested possession.
Continuous possession.
Open/Public possession.
Duration depends on circumstances, leading to a general conviction that the situation is in accordance with international law (Oppenheim-Lauterpacht).
Palmas Island Case (Arbitrator Huber): Ruling in favor of the Netherlands based on the "continuous and peaceful display of territorial sovereignty" being equivalent to a title, despite US claim based on succession from Spain.
Preah Vihear Temple Case (ICJ): Thailand's long acquiescence to a map showing the temple in Cambodia, despite potential errors, constituted acceptance and prescription.
Kasikili/Sedudu Island Case (ICJ): Claim of prescription rejected as occupation by Namibian tribe was not à titre de souverain but for agricultural purposes.
Cession:
Definition: Transfer of territory by treaty. Historically often through sale or gratuitous transfer.
Historical Examples:
Russia selling Alaska to the USA (1867).
Denmark selling Virgin Islands to the USA (1917).
Austria ceding Venice to Italy (1866).
Modern Forms:
Cession in peace treaties.
Cession for border adjustments (territorial exchanges for efficient administration - e.g., USSR-Poland 1951, USSR-Iran 1954).
Modern Requirements – Cession must comply with:
Principle of equal rights and self-determination of peoples.
Principle of non-use of force.
Adequate resolution of citizenship issues.
Limitations: Airspace, territorial waters, and subsoil cannot be ceded separately; they transfer with land territory.
Incorporation/Union: Entry of one state into another can be seen as a form of cession (e.g., Pereyaslav Treaty - Ukraine and Russia, 1654).
Conquest:
Historically: Conquest was a way to acquire territory if war ended without a peace treaty (e.g., Russia acquiring Kuril Islands after war with Japan - historical perspective given in text, but not author endorsing this as valid post-WWII).
Currently Illegal: Conquest is no longer a legitimate way to acquire territory under modern international law.
Declaration on Principles of International Law (1970): Prohibits the threat or use of force to violate international borders or for territorial disputes; territory should not be acquired by force, and such acquisitions are not legal.
International Condemnation: Attempts at conquest and annexation are rejected (e.g., Iraq's invasion of Kuwait 1990).
Exceptions in Practice: Situations where conquest has lasting consequences due to lack of effective international response (e.g., China's annexation of Tibet 1950 - mentioned as an example of a problematic situation, not endorsement).
Accretion (Natural Accretion):
Definition: Increase in state territory due to natural processes (soil deposit, land emergence, volcanic activity, etc.).
Example: British Prize Court case (1805) - Capture within 3-mile limit of newly formed islands from Mississippi river delta considered within US territorial waters.
New Land Beyond Territory: Land formed naturally outside any existing state's territory is considered terra nullius.
Other Legal Titles:
Contiguity (Proximity/Geographical Annexation):
Claiming territory based on its proximity to already controlled territory. Generally rejected by international courts for land territory. Sometimes invoked for Arctic delimitation. (Palmas Island case - Arbitrator Huber rejected contiguity as too vague).
Adjudication:
Title based on a decision by an international organization, body (court), or de facto international government. Examples: Post-WWI and WWII territorial decisions (Versailles Treaty 1919, post-WWII peace treaties); UN General Assembly resolution on Eritrea's transfer to Ethiopia (1950); ICJ decisions. Adjudication can confirm existing title or create a new one, especially when a title is unclear or lost (law-creating/transformative decisions).
Modes of Loss of State Territory:
Generally, the reverse of acquisition.
Dereliction (Abandonment): State relinquishes sovereignty with the intent to abandon the territory.
Loss due to Prescription: Another state acquires territory through acquisitive prescription (as described above).
Loss due to Natural Processes: Territory disappears due to natural events (e.g., Tuzla Spit in Kerch Strait, 1925).
Cession: State cedes territory to another state by treaty.
Conquest: Loss of territory to another state through conquest (though illegal in modern law, historically a mode of loss).
Secession: Part of a state's territory separates to form a new state. Can be stimulated by arbitrarily drawn borders (e.g., colonial borders in Africa).
Case Study: Kuril Islands Dispute (Russia vs. Japan):
Historical Background:
17th Century: Kuril Islands charted by Japanese and Dutch. Inhabited by Ainu.
18th Century: Russian expeditions, some islanders granted Russian citizenship, Russia controlled islands up to Urup, Japan controlled Kunashir and Iturup.
1855 Treaty of Shimoda: Border between Urup and Iturup, recognizing Japanese rights to Iturup, Kunashir, Shikotan, and Habomai.
1875 Treaty of St. Petersburg: Russia ceded all Kuril Islands to Japan in exchange for Japanese rights to Sakhalin.
1905 Treaty of Portsmouth: Russia ceded Southern Sakhalin to Japan after Russo-Japanese War.
1945 Yalta Agreement: USSR agreed to enter war against Japan, condition was return of Southern Sakhalin and transfer of Kuril Islands.
1945 Potsdam Declaration: Allied powers limited Japanese sovereignty to Honshu, Hokkaido, Kyushu, Shikoku, and "minor islands we determine" (Kurils not mentioned). USSR occupied Kurils in 1945.
1951 Treaty of San Francisco: Japan renounced all rights to Kuril Islands and Southern Sakhalin (USSR did not sign).
1956 Soviet-Japanese Joint Declaration: Ended war, restored diplomatic relations. USSR agreed to transfer Habomai and Shikotan to Japan after a peace treaty.
Peace Treaty Not Concluded: In 1960, USSR retracted promise to transfer islands, citing increased US military presence in Japan.
Ongoing Dispute: The territorial affiliation of the Kuril Islands remains a significant unresolved issue between Russia and Japan, highlighting the complexities of historical legal titles and their contemporary implications.
Jurisdiction of the state and its limitation
Concession of Jurisdiction
Limitations on territorial sovereignty represent a concession of territorial jurisdiction by a state to a foreign state.
Basis
These limitations are established through international treaties or customary international law.
Rationale (V.A. Ulyanitsky's view)
They stem from the "necessity to limit the unconditional supreme territorial power of the state to achieve the goals pursued by international communication." In essence, absolute sovereignty is impractical and limitations are needed for international cooperation and functioning.
The "Servitude" Controversy:
"Servitude" Terminology
Some scholars (Bluntschli, F.F. Martens, A. Verdross, Oppenheim-Lauterpacht) use the term "servitude" to describe certain limitations on territorial sovereignty.
Oppenheim-Lauterpacht's Perspective
They argue that "territory as an object" distinguishes state servitudes from other limitations.
Criticism of "Servitude"
Many authors reject the use of "servitude" in international law:
S.B. Krylov: Views "servitudes" as a disguise for inequality and imperialist coercion, masking the unequal position of weaker states.
Ts. Berezovsky: Argues that "servitude" blurs the line between in rem (property) and inter-state relations. He doubts the analogy to private law servitudes, as international "servitudes" lack the characteristic of automatically binding a successor state upon territorial transfer – a key feature of in rem rights.
N.M. Korkunov: Believes the relationship is personal, not in rem. The limitation is tied to the specific state authority granting it; if the territory changes hands, the obligation might not automatically transfer.
Distinction from Private Law Servitudes
International "servitudes" (if the term is used) are fundamentally different from servitudes in private law.
Private Law Servitudes (like in property law):
Property rights attached to land.
Automatically bind new landowners when property is sold.
Regular courts (property law).
International "Servitudes" (limitations on state power):
Agreements or obligations between states.
Don't automatically bind a new state if the territory changes hands. It depends on new agreements.
International means (diplomacy, international law - which is weaker than domestic courts).
Key Short Point: "International servitude" is a misleading term. It's not like a property right. It's more like a deal between countries, and deals don't automatically transfer to new owners of land like property rights do.
The author mentions the somewhat outdated term "duties" (повинности) as another way to describe limitations.
Classification of Limitations:
Negative (Passive) Limitations:
State refrains from exercising jurisdiction on its own territory in certain respects.
Examples:
Jurisdictional Immunity for Foreign Ships: Non-exercise of jurisdiction over foreign ships in internal waters and territorial sea (with exceptions).
Diplomatic and Consular Immunities: Exemption from jurisdiction for persons and objects with diplomatic and consular immunity.
Demilitarization: Commitment to demilitarize specific territories.
Positive (Active) Limitations:
State allows another state to exercise jurisdiction on its territory in specific areas.
Examples:
Lease of State Territory: Providing state territory for lease to another state. Historically common (19th century China, modern Russia leasing from Kazakhstan and others).
Baikonur Cosmodrome (Kazakhstan leased to Russia):
Legal framework: Agreements from 1992, 1994, and 1994 Lease Treaty.
Purpose: Russian space programs, joint projects, international and commercial projects.
Rent: 115 million annually.
Term: 20 years, with possible 10-year extensions.
Governance: Joint appointment of Leninsk city administration head (by Presidents), Russian appointment of Cosmodrome Commander (with Kazakh agreement), Kazakh special representative.
Jurisdiction: Russian law for Russian military and personnel within the complex (considering Kazakh law). Russian jurisdiction for Russian personnel for offenses against Russia/citizens, military crimes, and service-related offenses outside Baikonur. Kazakh law and jurisdiction in other cases.
Border and international rivers: definition and regime of their use.
Boundary rivers
The principle of delimitation apparently established in the law is that of the thalweg, presumed to mean the middle of the main navigable channel.
However, the term may have another meaning in particular instruments and treaties, viz, the line of deepest soundings.
The two definitions will often coincide. But conditions prevailing, even within the same river system, are very variable and scholarly opinion is unhelpful in practice. Technical expertise is called for, particularly in relation to the determination of the main channel among several arms of a river.
Unlike purely terrestrial borders, boundary rivers may change their course. This is not a true case of accretion.
Thus, in relation to the southern boundary of New Mexico, the solution of disputes between the US and Mexico depended on principles of acquiescence and the interpretation of agreements as to the outcome of natural changes.
In this type of case, even in the absence of applicable agreements, sudden, forcible, and significant changes in river courses (avulsion) will not be considered to have changed the frontier line.
In other words, the boundary will be fixed along the route of the former river bed, following not the river but the land underneath.
Accretion, the gradual and imperceptible addition of sediments, can give rise to an extension of the sovereignty of the co-riparian state to areas already under effective occupationon the basis of principles of contiguity and certainty.
The gradual nature of the process leads to a presumption of occupation by the riparian state and of acquiescence by other states; thus, the boundary will be held to move with the river.
In Eritrea–Ethiopia Boundary Commission, the tribunal issued certain directions for the demarcation stage of its work, including the following:
[T]he identification of a river as a boundary should normally suffice without actual demarcation therein, save as regards the identification of confluences, turning points that may give rise to doubts, and headwaters or sources. Moreover, ‘the turning point of the boundary is at the point of the meeting of the main channel of each river or stream’ and that, topography permitting, ‘the turning point shall be identified by three pillars, one on each bank of the river that meets the other and the third on the bank of the latter opposite the confluence, with the distances of each pillar from the point of meeting being marked thereon’. Regard should be paid to equitable considerations—the customary rights of the local people to have access to the river—at the demarcation stage of the decision regarding a line within rivers.
International canals: legal regime
Canals are in principle subject to the territorial sovereignty and jurisdiction of the state or states which they separate or traverse.
Where the canal serves more than one state, or otherwise affects the interests of more than one state, a treaty regime may be created to regulate use and administration.
The history of three canals of international concern has provided the basic materials for jurists seeking to establish general rules.
Suez Canal
The Suez Canal was built and opened in 1869 under a private law concession for 99 years granted by the Egyptian government to the Universal Suez Maritime Canal Company.
For most of its history, the latter was a joint Franco-Egyptian company with aspects of its existence and functioning subjected to either French or Egyptian law. The British government became the largest shareholder.
Under Article I of the Convention of Constantinople of 1888, the canal ‘shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag’.
The parties agreed not to interfere with the free use of the canal and not to subject it to the right of blockade.
In 1954, Britain and Egypt agreed on British withdrawal from the Suez Canal base; the parties recognized that the canal ‘which is an integral part of Egypt, is a waterway economically, commercially and strategically of international importance’.
In 1956, the Egyptian government nationalized the canal company, under a law providing for compensation, but made no claim to alter the status of the canal itself.
Britain, France, and other states argued for the illegality of this measure, linking the status of the company and the concession with the status of the canal, and alleging that the nationalization was incompatible with the ‘international status’ of the canal.
As a result of the Franco-British invasion later in the same year, Egypt abrogated the 1954 Agreement.
On 24 April 1957, Egypt made a declaration confirming the rights and obligations arising from the Convention of Constantinople. The Declaration was registered under Charter Article 102, although it was a unilateral act.
Panama Canal
Until 1978, the Panama Canal Zone was occupied and administered by the US, independently of Panama, under the Hay–Bunau–Varilla Treaty of 1903, which provided that the canal should be neutral in perpetuity and open to the vessels of all nations.
Even before this, the Hay–Pauncefote Treaty had guaranteed free navigation, even in time of war, in terms borrowed from the Convention of Constantinople.
But by a Treaty of 1977 (as amended in 1978), Panama was recognized as ‘territorial sovereign’ with rights of management of the canal granted to the US for the duration of the Treaty.
Kiel Canal
The Kiel Canal, though important for international commerce, was controlled by Germany untrammelled by special obligations until, in the Treaty of Versailles, it was provided that, except when Germany was a belligerent, the canal was to be open to vessels of commerce and of war of all nations on terms of equality (Art 380).
In 1936, the relevant provisions of the Treaty of Versailles were denounced by Germany, and other states seem to have acquiesced in this.
It is doubtful if the existing materials justify any general principle concerning international canals.
But there is some authority to the contrary. In the Wimbledon, a British vessel chartered by a French company, en route to Danzig with munitions for the Polish government, was refused access to the Kiel Canal.
The issue was whether, given that Poland and Russia were at war, Germany was justified in holding that Article 380 of the Versailles Treaty did not preclude the observance of neutrality.
The judgment, in upholding an expansive interpretation of the right of transit, referred to the Suez and Panama canals as ‘precedents’ which were: merely illustrations of the general opinion according to which when an artificial waterway connecting two open seas has been permanently dedicated to the use of the whole world, such waterway is assimilated to natural straits in the sense that even the passage of a belligerent man-of-war does not compromise the neutrality of the sovereign State under whose jurisdiction the waters in question lie.
It will be noted that this proposition was ancillary to an exercise in treaty interpretation and that even the general proposition depends on the incidence of ‘permanent dedication’.
Moreover, interested states are reluctant to generalize: in 1956, the US regarded the Suez Canal as having an ‘international status’, while denying this in the case of the Panama Canal.
Legal regime of the Arctic: definitions of ‘Arctic’ and ‘Arctic states’. Problems of delimitation of the Arctic Ocean continental shelf. Peculiarities of the regime of navigation in the Arctic Ocean.
Definitions of ‘Arctic’ and ‘Arctic States’:
Arctic Definition: The Arctic is a region around the North Pole, covering 27 million sq km. It includes areas of the Arctic Ocean and adjacent parts of the Atlantic and Pacific Oceans.
Arctic States: Denmark, Iceland, Canada, Norway, Russia, USA, Finland, and Sweden.
Problems of Delimitation of the Arctic Ocean Continental Shelf:
The international legal regime of the Arctic is still not fully defined.
Sectoral Principle: lines connecting the extreme points of a state's coastline to the North Pole.
Basis: Proposed as a basis for delimiting Arctic territories. It is based on the "sectoral principle" where state possessions are defined by straight
Concept of Contiguity: The sectoral principle is rooted in the concept of "contiguity," analogizing to private law division between a principal thing and its accessory.
Proponents: Russia and Canada have historically insisted on applying this principle.
Challenges and Disputes: The sectoral principle is contested by some states and scholars who argue it cannot justify full sovereignty to the Pole.
Canadian Example: Canada's Arctic Waters Pollution Prevention Act in the 1970s, based on sectoral control, was disputed by the USA. The US often doesn't notify Canada about ship passage through Canadian Arctic waters. Some states conduct research in the Arctic without Arctic states' consent.
Brownlie's suggests that legal title in the Arctic is more likely based on recognition (through treaties or otherwise) rather than the sectoral principle alone.
Maleev's View: Polar sector boundaries were not originally considered state borders. Establishing a polar sector by a state didn't predetermine the legal regime of maritime spaces within it. The legal regime of each Arctic sea area should be assessed individually, considering the established legal order based on defense, political, economic, and other interests, especially of coastal states.
Lack of Specific Regulation in UNCLOS 1982: The 1982 UN Convention on the Law of the Sea (UNCLOS) does not specifically regulate the Arctic regime.
Article 234 UNCLOS (Ice-Covered Areas): Article 234 is mentioned as relevant, allowing coastal states to adopt and enforce non-discriminatory laws and regulations for pollution prevention from vessels in ice-covered areas within their Exclusive Economic Zone (EEZ). This is justified by harsh climate, ice conditions, and the potential for severe environmental damage from pollution. These laws should consider navigation and environmental protection based on best available science.
Peculiarities of the Regime of Navigation in the Arctic Ocean:
Northern Sea Route (Russia):
Importance: Crucial for Russia and other countries, connecting the Far East and Europe. Shorter than the Suez Canal route by half.
Challenges: Arctic ice hinders intensive use. Navigation season is limited to about four months.
Northern Sea Route Administration: Established in 1971 by the Soviet Union (now under Russia).
Functions of the Administration:
Regulates navigation along the Northern Sea Route.
Coordinates icebreaker operations.
Establishes mandatory icebreaker and pilotage areas for safety.
Organizes icebreaker and pilotage services.
Provides assistance to vessels in distress.
Sets navigation rules and periods.
International Disputes and Delimitation Issues: The undefined legal regime of the Arctic leads to international disputes. Problems of maritime space delimitation between Russia and Norway are mentioned as still not fully resolved, highlighting ongoing disagreements about Arctic jurisdiction and navigation.
Antarctic:
The Antarctic region faces similar challenges, with various countries asserting claims and interests over territorial waters, raising concerns regarding effective governance and environmental protection. In both regions, the absence of a clear regulatory framework complicates potential cooperation and negotiation among nations, thereby increasing the likelihood of conflicts over resource allocation and sovereign rights. The lack of established navigation rules in the Antarctic further exacerbates these challenges, as unregulated shipping traffic poses risks to the fragile ecosystem, underlining the urgent need for comprehensive international treaties to govern maritime activities. In addition, the interests of multiple stakeholders, including indigenous populations, highlight the need for inclusive decision-making processes that take into account not only national claims but also the rights and traditional knowledge of local communities. Furthermore, collaborative efforts among nations, scientists, and indigenous groups are essential to create a sustainable framework that balances economic development and environmental conservation in these sensitive regions. The establishment of such a framework would facilitate joint scientific research initiatives, promote shared best practices for environmental stewardship, and enhance the overall stability of international relations in the region.