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Summary of Working Paper No. 57-1996

IV.3.1: The legal Status of Straits in Russian Arctic Waters.

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

In the two Chapters dealing with straits a analysis is made attempting to clarify the legal status of the Russian Arctic straits under international law and the type of permissible passage. The central issue in this Chapter involves interpretation of "international use" required under the straits regime of both the l958 Territorial Sea Convention (TSC) and the l982 Law of the Sea Convention (l982), and from this whether the Russian Arctic straits can be considered international. In carrying this out, first the issues surrounding "internationality" of international straits are forth in Section 4.2. This includes whether "actual use" or "future use" inherent in interpreting "internationality" can be construed from the relevant legal sources of the international straits regime, the Corfu Channel Case TSC Article 16(4) and LOSC Articles 34-45. Following this, relevant Russian legislation and other evidence of State practice are presented in Section 4.3. The practice of the main opponent in the area, the U.S. is also presented in Section 4.3. No other State than the U.S. has been found objecting officially to the Russian Arctic straits regime or sailing its vessels in these waters at variance with the Russian provisions. Using the results obtained determinations are made regarding the solidity of the Russian and American positions under international law and in Section 4.4. conclusions are drawn regarding "internationality." It is found that based upon State practice that at this time it would be difficult to classify the Russian Arctic straits as "international." This may change in the future however. The salient international issues more broadly associated with passage are presented in Chapter 5, including the position of the LOSC straits regime under customary law. This division is considered necessary for clarity due to the complexity of the international straits regime. However when presenting the Russian rules governing the Arctic straits, the provisions are presented in Chapter 4. This is to preserve continuity and because the type of permissible passage dictated by the Russians necessarily indicates their view on "internationality."