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Soviet Union Warns United States against Use of Northeast Passage

Published online by Cambridge University Press:  28 March 2017

Donat Pharand
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American Journal of International Law , Volume 62 , Issue 4 , October 1968 , pp. 927 - 935
Copyright
Copyright © American Society of International Law 1968

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References

1 Department Statement of Aug. 31, 1967, in 57 Dept. of State Bulletin 362 (1967), and 62 A.J.I.L. 150-151 (1968).

2 Ibid.

3 Traced from Map 6618, published by the IT. S. Naval Oceanographic Office, under the authority of the Secretary of the Navy. It is dated July 17, 1967, and makes use of available data up to 1966. It proved impossible for the writer to obtain maps from the U.S.S.B.

4 The measurements were made by the writer and so was the positioning of the route. The writer is indebted to Dr. Melvin G. Marcus, Professor of Geography at the University of Michigan, who kindly verified the measurements of the Vilkitsky Straits. His exact measurement of the northern strait was 22.51 miles.

5 The “Law on the Extension of the Maritime Custom Zone” adopted on Dec. 10, 1909, is cited by the U.S.S.R. as having established its 12-mile territorial sea. See Synoptical Table prepared by the U.N. Secretariat based upon information received from States, Annex, Doc. A/CONF. 19/4, in Second U.N. Conference on the Law of the Sea, A/Conf. 19/8, pp. 157-163 (1960).

6 See Synoptical Table, op. eit.

7 See “The Territorial Sea and Pishing Zones Act,” Statutes of Canada, 1964, 13 Bliz. II. c.22; and “The Twelve-mile Fishery Limit Act,” 80 Stat. 908 (1966).

8 Department Statement, loo. cit. note 1 above.

9 516 UN. Treaty Series 205; T.I.A.S., No. 5639; 15 IT. S. Treaties 1606; 52 A.J.IX. 834 (1968).

10 Art. 14, par. 1,

11 Art. 16, par. 3.

12 Art. 16, par. 4.

13 A close examination of the Trench text of the judgment, which is the only authoritative one, reveals that the Court considered the geographical situation to be the decisive criterion. The relevant passage of the judgment reads: “Le critère décisif parait plut?t devoir être tiré de la situation géographique du Détroit, en tant que ce dernier met en communication deux parties de haute mer, ainsi que du fait que le Détroit est utilisé aux fins de la navigation internationale.” [1949] I.C.J. Eep. 28.

14 Art. 17, 1956 I.L.C. Yearbook (II) 258.

15 For an account of this voyage, see Trevor Lloyd, ‘ ‘ The Northern Sea Eoute,'' Russian Review, April, 1950. See also a translation of part of the article in Documentation Franchise, Feb. 12, 1953, No. 1707, at 19-20.

16 Sailing Directions for Northern USSE, “Vol. Ill , at 14 (amended up to 1967).

17 In September, 1965, the U.S.C.G. icebreaker Northwind had gone as far as 30 miles from the western entrance of the Vilkitsky Straits but had made no real attempt to go through the Straits. The TT.S.S.E. had warned against any possible passage and had kept the ship under close surveillance by aircraft and destroyer. For a full account of this voyage, see Eichard Petrow, Across the Top of Russia (1967).

18 Art. 16, par. 3.

19 Reproduced in Soviet Statutes and Decisions, Vol. Ill , No. 4, at 13 (Summer, 1967).

20 Art. 15.

21 Report by “Werner Bamberger in the New York Times, Dec. 17, 1967, and reproduced in The Polar Times at 13 (Dec, 1967).

22 450 U.N. Treaty Series 82; T.I.A.S., No. 5200; 13 IT. S. Treaties 2312; 52 A.J.I.L. 842 (1958). This convention has been in force since 1962 and has been ratified by both the United States and the Soviet Union.

23 Art. 8, par. 2.

24 Peter Grose, “U. S. Halts Arctic Expedition as Soviet Bars Ships,” New York Times Aug. 31, 1967, reproduced in The Polar Times, at 14 (Dec, 1967).

25 Ibid, at 15.

26 14 TJ. 8. Code §1.

27 Ibid.

28 Ibid. §3.

29 Dept. of the Navy, EDT & E Management Guide, Appendix J (Oceanographic Program), July 1, 1967.

30 Corfu Channel Case, [1949] I.C.J. Rep. 28.

31 Art. 24, 1965 I.L.C. Yearbook (II) 276.

32 See TJ.N. Conference on Law of the Sea, Official Records, U.N. Doc. A/Conf. 13/39, Vol. I l l at 78, 94 and 130 (1958).

33 Art. 23.

34 For a similar interpretation, see Jessup, “The Geneva Conference on the Law of the Sea,” 59 CoL Law Rev. 234 at 248 (1959). He states with reference to Art. 23: “This article was adopted by 76 to 0 with 1 abstention. The implication is that warships do hare the right of innocent passage.” On this question of prior authorization, a similar conclusion is reached by Mr. Slonim when he states: “ I n view of the fact that the majority of states do not require authorization for the innocent passage of foreign warships through their territorial waters, the Court [International] may well conclude that fulfillment of such a requirement is more an act of international courtesy than legal necessity.” Solomon Slonim, “The Eight of Innocent Passage and the 1958 Geneva Conference on the Law of the Sea,” 5 Col. J. of Transnat'l Law 96 (1966).

35 Soviet Statutes and Decisions, op. cit. at 45.

36 Art. 16.

37 Adopted on June 25, 1960, and reproduced in Soviet Statutes and Decisions, op. cit. at 24-29.

38 Art. 2.

39 [1949] I.C.J. Rep. 29.

40 Art. 17.

41 Art. 16, par. 1.

42 See Commentary to Art. 17, in 1956 I.L.C. Yearbook (II) 273. The Commentary reads in part: “This article recognizes the right of the coastal State to verify the innocent character of the passage… . “

43 Mr. Butler has also arrived at the conclusion that ‘ ‘ Soviet legislation operates in effect to deny the right of innocent passage to warships rather than to restrict that r i g h t . “ See William E. Butler, “ T h e Legal Regime of Russian Territorial Waters,“ 62 A.J.I.L. 51 at 69 (1968).

44 Advisory Opinion on Reservations to the Convention on Genocide, [1951] I.C.J. Rep. 15 at 24.

45 Art. 18, 1965 I.L.C. Yearbook (I) 283.

46 A fuller examination of the status of the Northeast Passage will be found in an article entitled “Innocent Passage in the Arctic,” to be published in the 1968 issue of the Canadian Yearbook of International Law.