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Summary of Working Paper No. 52-1996

IV.3.1: Jurisdiction Governing the Straits in Russian Arctic Waters.

By R. Douglas Brubaker, The Fridtjof Nansen Institute, Lysaker, Norway.

As seen in Working Paper 57 (Chapter 4) the Russian Arctic straits are viewed differently ranging from existing under complete Russian jurisdiction to comprising a part of the LOSC international straits regime. In this Working Paper 52 (Chapter 5) the rights involved with vessel passage and coastal State control are analyzed. First the issues surrounding the international regimes are set forth in Section 5.2. It was seen in Chapter 4 that the internationality of the Russian Arctic straits, though supporting the Russian position presently, may change. Thus the rights associated with the three scenarios presented in Chapter 4 must be analyzed, the LOSC international straits regime, TSC Article 16(4), and the LOSC and TSC non-international straits. Since the latter consists of the regimes of the territorial sea, exclusive economic zone and internal waters, these will be addressed separately in a future Working Paper (Chapter 7).

In analysing these scenarios international customary law, in which the Corfu Channel Case and TSC Article 16(4) stand central, plays an important part, though this too is in a state of flux. Briefly, the subject of international straits and passage through such is not expanded upon in the TSC, despite the fact that it incorporates criteria from the Corfu Channel Case, and there are relatively few ratifying Parties. Though the LOSC entered into force in November l994, major maritime powers including Russia, the U.K. and the U.S. are not bound since they have not ratified, though they may do so in the near future. The LOSC has nevertheless made a substantial contribution to the development of international custom in this particular regime. Should the major maritime powers ratify, their State practice will largely determine the interpretation of the legal provisions of the regime. The presence of ice in the Arctic and an emerging special regime for ice navigation under the LOSC may also influence the international straits regime. In such a controversial area subsequent State practise is one of the most important elements of this work.

The relevant Russian legislation and other evidence of State practise as well as the practise of the main opponent in the area, the U.S. as seen is set forth in Section 4.3. Using the results obtained from Section 5.2. determinations are then made regarding the soundness of the Russian and American positions under international law regarding the Russian Arctic straits, including which type of passage is allowable and the type of legislative and enforcement jurisdiction which Russia can exercise. Recommendations are made where possible for the resolution of the jurisdictional issues.