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The Right of Overflight above International Straits

Published online by Cambridge University Press:  17 November 2015

SUZANNE LALONDE
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Abstract

The legal status of the Northwest Passage (NWP) has been the subject of much debate in academic, government, and media circles. To date, much of this discussion has centred on the legal regime governing maritime navigation. However, the question of whether the NWP is subject to guaranteed freedoms or Canada’s unqualified sovereign control also involves the right of overflight. This article investigates the circumstances that led to the inclusion of the freedom of overflight in Part III of the United Nations Convention on the Law of the Sea. It then highlights some of the legal standards that would govern air navigation if the NWP were to be considered an international strait.

Résumé

La question du statut juridique du Passage Nord-Ouest (PNO) a fait l’objet de nombreux débats depuis plusieurs années. À date, ces discussions ont été centrées sur le régime juridique régissant la navigation maritime. Cependant, la question de savoir si le PNO est sujet à des libertés reconnues ou au contrôle absolu du Canada implique aussi le droit de survol. Cet article analyse les circonstances qui ont mené à l’inclusion de la liberté de survol dans la Partie III de la Convention des Nations Unies sur le droit de la mer. Il souligne par la suite certains aspects des règles juridiques qui réglementeraient la navigation aérienne au-dessus du PNO s’il était considéré un détroit international.

Keywords

Northwest Passagelaw of the seainternational straitsright of transit passagefreedom of overflightPassage Nord-Ouestdroit de la merdétroits internationauxdroit de passage en transitliberté de survol
Type
Articles
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 52 , October 2015 , pp. 35 - 76
Copyright
Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 2015 

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References

1 The 2004 Arctic Climate Impact Assessment (ACIA) was prepared in response to a request from the Ministers of the Arctic Council. The assessment was produced by the Arctic Monitoring and Assessment Programme (AMAP) in collaboration with the Arctic Council’s Conservation of Arctic Flora and Fauna working group and the International Arctic Science Committee and was coordinated by AMAP. More than 250 scientists and six circumpolar indigenous peoples’ organizations participated in the ACIA. See online: AMAP <http://www.amap.no/arctic-climate-impact-assessment-acia>.

2 The Northwest Passage (NWP) spans the waters within the Canadian Arctic Archipelago between Baffin Bay in the east and the Beaufort Sea in the west. As Rothwell explains, the NWP is in reality a series of connected straits passages: “Given the large number of islands that make up the Arctic Archipelago, there exist many potential shipping routes from east to west and west to east. The practical reality, however, is that because of the heavy ice found in these polar waters, and the shallow draught that exists in some of the straits, there are only a handful of viable combinations of straits and channels which can be used to make the complete crossing.” DR Rothwell, “The Canadian-US Northwest Passage Dispute: A Reassessment” (1993) 26 Cornell Int’l LJ 331 at 352. According to Pharand, the NWP consists of five basic routes: Route 1, through Prince of Wales Strait; Route 2, through the M’Clure Strait; Route 3, through Peel Sound and Victoria Strait; Route 3A, through Peel Sound and James Ross Strait; Route 4, through Prince Regent Inlet; Route 5, through Fury and Hecla Strait; and Route 5A, through Fury and Hecla Strait and Prince Regent Inlet. However, at present, only Routes 1 and 2, referred to as the northern routes, are known to be suitable for deep-draught ships: Pharand, Donat, Canada’s Arctic Waters in International Law (Cambridge: Cambridge University Press, 1988) at 189–201 (see map of the various routes at 190–91).CrossRefGoogle Scholar

3 According to the authors of a recent study, “a minimum definition of the NEP [Northeast Passage] is that it is made up of all the marginal seas of the Eurasian Arctic, i.e., the Chukchi, the East Siberian, the Laptev, the Kara and the Barents Sea. As such, the NSR makes up approximately 90 percent of the NEP.” Østreng, W et al, Shipping in Arctic Waters: A Comparison of the Northeast, Northwest and Trans Polar Passages (London: Springer-Praxis, 2013) at 18 CrossRefGoogle Scholar. The Northern Sea Route (NSR) was designated as a separate part of the NEP and as an administered, legal entity under full Soviet jurisdiction and control by the Council of People’s Commissars of the Soviet Union on 17 December 1932. According to the official Russian definition, the NSR stretches from Novaya Zemlya in the west to the Bering Strait in the east and its different sailing lanes cover 2,200 to 2,900 nautical miles of ice-infested waters. Ibid at 13.

4 “Transpolar routes outside of national jurisdiction in the Arctic Ocean cover all waters that are part of the high seas and where the freedom of navigation applies. This definition includes two sections of water expanses: The first is the Central Arctic Basin which is 4.7 million sq. km in area ... The second section includes all ocean areas beyond the territorial seas of 12 nautical miles and within the outer limits of the 200 nautical miles exclusive economic zones (EEZ).” Ibid at 30. The direct route across the Central Arctic Ocean from the Bering Strait over the North Pole to the Fram Strait between Greenland and Svalbard is 2,100 nautical miles. All other transit routes within the Arctic Basin are longer. Ibid at 21.

5 Ibid at 31–33, 147–49.

6 In his January 2009 National Security Presidential Directive and Homeland Security Presidential Directive, US President George W Bush emphasized that freedom of the seas was a top national priority for the United States: “The Northwest Passage is a strait used for international navigation, and the Northern Sea Route includes straits used for international navigation; the regime of transit passage applies to passage through those straits.” See National Security and Homeland Security Interests in the Arctic, section III, “Policy,” sub-section B, at para 5, online: <http://www.fas.org/irp/offdocs/nspd/nspd-66.htm>. See also US President Obama’s National Strategy for the Arctic Region of May 2013: “Accession to the Convention [1982 United Nations Convention on the Law of the Sea] would protect U.S. rights, freedoms, and uses of the sea and airspace throughout the Arctic region, and strengthen our arguments for freedom of navigation and overflight through the Northwest Passage and the Northern Sea Route.” See Strengthen International Cooperation, third bullet point, “Accede to the Law of the Sea Convention,” section 3, online: <http://www.whitehouse.gov/sites/default/files/docs/nat_arctic_strategy.pdf>.

7 It is Canada’s official policy that all of the waters within the Canadian Arctic archipelago are Canadian historic internal waters over which it exercises full and exclusive sovereignty. See, eg, Canada’s Northern Strategy under the heading “Exercising Our Arctic Sovereignty,” online: <http://www.northernstrategy.gc.ca/index-eng.asp>: “The Government is firmly exercising our sovereignty over our Arctic lands and waters – sovereignty that is long-standing, well-established and based on historic title, international law and the presence of Inuit and other Aboriginal peoples for thousands of years.”

8 Both the Russian Federation’s Policy for the Arctic to 2020, adopted by President Medvedev in September 2008 (online: <http://www.arctis-search.com/Russian+Federation+Policy+for+the+Arctic+to+2020>), and the Strategy for the Development of the Arctic Zone of the Russian Federation and National Security up to 2020, adopted by President Putin in November 2013 (online: <http://www.uarctic.org/news/2013/2/the-arctic-development-strategy-2020-was-approved-by-the-president-vladimir-putin/>), emphasize Russia’s sovereignty over the NSR and the need to protect the country’s national interests.

9 The European Union and the Arctic Region, Communication of the European Communities to the European Parliament and Council (2008), s 3.3 “Transport,” online: <http://eur-lex.europa.eu/legal-content/EN/ALL/;ELX_SESSIONID=GJ1CJsLWKnWTvqgRgpwj7njplZTQv9Pn3w2xBrwwhT6bzNyhHJcC!1690305890?uri=CELEX:52008DC0763>.

10 EU Resolution on the EU Strategy of the Arctic, 12 March 2014, online: <http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2014-0236> [emphasis added].

11 Guidelines of the Germany Arctic Policy: Assume Responsibility, Seize Opportunities, online: <http://www.bmel.de/SharedDocs/Downloads/EN/International/Leitlinien-Arktispolitik.pdf?__blob=publicationFile>.

12 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397 [LOSC]. Article 38 provides: “In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage” [emphasis added].

13 See remarks by Tommy TB Koh of Singapore, president of the Third United Nations Conference on the Law of the Sea, A Constitution for the Oceans, online: <http://www.un.org/depts/los/convention_agreements/texts/koh_english.pdf>: “The second theme which emerged from the statements is that the provisions of the Convention are closely interrelated and form an integral package. Thus, it is not possible for a State to pick what it likes and to disregard what it does not like.”

14 UN Office for Ocean Affairs and the Law of the Sea, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol I (New York: United Nations, 1992) at 1 Google Scholar: “The international community has long recognized the special situation of straits as linkages between oceans and seas and their consequential importance for maritime communications and trade.”

15 This issue was flagged, for instance, by the representative of the Soviet Union at the first session of the Seabed Committee, which was held on 12–26 March 1971: “The representative of the Soviet Union pointed out that if the breadth of the territorial waters were increased to 12 miles in every case, more than 100 straits would be transformed into territorial waters of the coastal States, and it would therefore be necessary to make arrangements for free passage and overflight.” Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction (Seabed Committee), Summary Records of the Forty-Fifth to the Sixtieth Meetings, UN 51st Meeting, Doc A/AC.138/SR.45-60 (1971) at 71.

16 See World Oil Transit Chokepoints on the website of the US Energy Information Administration, online: <http://www.eia.gov/countries/regions-topics.cfm?fips=wotc&trk=p3>.

17 See Today in Energy on the website of the US Energy Information Administration, online: <http://www.eia.gov/todayinenergy/detail.cfm?id=4430>.

18 See the website of the Gibraltar Port Authority, online: <http://www.gibraltarport.com/port-information/introduction>.

19 Figures for 2009 through 2014 are available on the Jabatan Laut Malaysia official website, under the tabs “Navigation” and “Statistics,” online: <http://www.marine.gov.my/jlmeng/index.asp>.

20 Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 UNTS 205 [1958 Convention].

21 See, eg, the statement of the representative of the United States during the second session of the Seabed Committee, which was held from 19 July to 27 August 1971: “The doctrine of innocent passage was not adequate when applied to international straits. Some States considered it to be a subjective criterion to be left to the discretion of the coastal State.” Subcommittee II, Summary Records of the Fourth to the Twenty-Third Meetings, 8th Meeting, UN Doc A/AC.138/SC.II/SR.4-23 (1971) at 45–47.

22 See 1958 Convention, supra note 20, Article 14(6), section III, “Right of Innocent Passage”: “Submarines are required to navigate on the surface and to show their flag.”

23 See statement of the representative of the United States, Subcommittee II, supra note 21. As the website of the Chief of Naval Operations, US Submarine Warfare Division explains, a “submarine’s ‘tear drop’ hull design allows it to slice cleanly through the ocean when there is water on all sides. When a ‘tear drop’ hull submarine is on the surface, a great deal of energy is used to generate the bow wave and wake. That energy is then unavailable for propulsion.” See Submarine Frequently Asked Questions on the website of the Chief of Naval Operations, US Submarine Warfare Division, online: <http://www.navy.mil/navydata/cno/n87/faq.html>.

24 Second Committee, Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No E.75.V.4), 13th Meeting, Doc A/CONF.62/C.1/SR.13 (1974), vol II, paras 64–68.

25 UN Office for Ocean Affairs and the Law of the Sea, supra note 14 at 3.

26 Ibid [emphasis added].

27 Ibid.

28 By its Resolution 2340 (XXII) of 18 December 1968, the UN General Assembly (UNGA) created a standing committee, the Committee on the Peaceful Uses of the Seabed and Ocean Floor beyond the Limits of National Jurisdiction (Seabed Committee) for the purpose of studying “the international cooperation in the exploration and use of the seabed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction.” See online: United Nations <http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/2340(XXII)>.

29 Resolution 2750 C (XXV), online: United Nations <http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/2750(XXV)>.

30 UN Office for Ocean Affairs and the Law of the Sea, supra note 14 at 21 [emphasis added].

31 Seabed Committee, Subcommittee II, Summary Records of the Thirty-Third to the Forty-Seventh Meetings, 36th Meeting, UN Doc A/AC.138/SC.II/SR.33-47 (1972) at 21–23.

32 Ibid, 43rd Meeting, at 63–65.

33 Seabed Committee, Summary Records of the Seventy-Seventh to the Eighty-Ninth Meeting, 83rd Meeting, UN Doc A/AC.138/SR.77-89 (1972) at 63.

34 Seabed Committee, Subcommittee II, Summary Records of the Fourth to the Twenty-Third Meetings, UN Doc A/AC.138/SC.II/SR.4-23 (1971) at 22–24 [emphasis added].

35 Ibid [emphasis added].

36 Ibid, 14th Meeting, at 148 [emphasis added].

37 Ibid, 8th Meeting, at 52.

38 Ibid [emphasis added].

39 E Brüel, International Straits, vol I (London: Sweet and Maxwell, 1947) at 38–39, 42.

40 Seabed Committee, Subcommittee II, Summary Records of the Fourth to the Twenty-Third Meetings, 15th Meeting, UN Doc A/AC.138/SC.II/SR.4-23 (1971) at 154–56 [emphasis added].

41 Ibid, 11th Meeting, at 89–90 [emphasis added].

42 Ibid, 16th Meeting, at 180–81 [emphasis added].

43 Official Records of the General Assembly, 27th Session, Supplement No 21, UN Doc A/8721 (1972), Annex III, ch 1 (originally issued as UN Doc A/AC.138/66 and Corr 2).

44 Ibid, ch 2, s 2 (originally issued as UN Doc A/AC.138/68).

45 Ibid, s 5 (originally issued as UN Doc A/AC.138/71).

46 Ibid, s 8 (originally issued as UN Doc A/AC.138/76).

47 Ibid, s 9 (originally issued as UN Doc A/AC.138/77).

48 Corfu Channel Case (United Kingdom v Albania), Merits, [1949] ICJ Rep 4.

49 Seabed Committee, Subcommittee II, Summary Records of the Twenty-Fourth to the Thirty-Second Meetings, 27th Meeting, UN Doc A/AC.138/SC.II/SR.24-32 (1972) at 30.

50 Seabed Committee, Subcommittee II, Summary Records of the Thirty-Third to the Forty-Seventh Meetings, 41st Meeting, UN Doc A/AC.138/SC.II/SR.33-47 (1972) at 50–51.

51 Official Records of the General Assembly, 28th Session, Supplement No 21, UN Doc A/9021 (1973), vol III, Annex II, Appendix V, ch 6 (originally issued as UN Doc A/AC.138/SC.II/SR.58) at 27.

52 Ibid at 27–28.

53 Ibid at 28.

54 Ibid.

55 Ibid (originally issued as UN Doc A/AC.138/SC.II/SR.59) at 12.

56 Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No E.75.V.5, UN Doc A/CONF.62/C.2/L.3 (1974), vol III.

57 “Draft articles on straits used for international navigation submitted by Bulgaria, Czechoslovakia, the German Democratic Republic, Poland, the Ukrainian Soviet Socialist Republic and the Union of Soviet Socialist Republics.” Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No E.75.V.5), 2nd Session, UN Doc A/CONF.62/C.2/L.11 (1974).

58 “Draft articles on straits used for international navigation; semi-enclosed seas, submitted by Algeria.” Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No E.75.V.5), 2nd Session, UN Doc A/CONF.62/C.2/L.20 (1974).

59 “Draft articles on definition of straits used for international navigation submitted by Algeria, Bahrain, Iraq, Kuwait, the Libyan Arab Republic, Qatar, Saudi Arabia, the Syrian Arab Republic, Tunisia and the United Arab Emirates.” Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No E.75.V.5), 2nd Session, UN Doc A/CONF.62/C.2/L.44 (1974).

60 “Draft articles on enclosed or semi-enclosed seas submitted by Iraq.” Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No E.75.V.5), 2nd Session, UN Doc A/CONF.62/C.2/L.71 (1974), Add 1 and 2.

61 “Draft article on a definition of an international strait submitted by Canada.” Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No E.75.V.5), 2nd Session, UN Doc A/CONF.62/C.2/L.83 (1974).

62 This group was under the joint chairmanship of Fiji and the United Kingdom. Its first meeting was attended by 14 delegations: Argentina, Bahrain, Denmark, Ethiopia, Fiji, Iceland, Italy, Kenya, Lebanon, Nigeria, Singapore, United Kingdom, United Arab Emirates and Venezuela. Subsequent meetings were attended also by the delegations of Australia, Bulgaria and India. For background on the work of the Private Group on Straits, see SN Nandan and DH Anderson, “Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea 1982” (1989) 60 BYIL 159.

63 Platzöder, R, ed, Third United Nations Conference on the Law of the Sea: Documents, vol IV (Dobbs Ferry, New York: Oceana Publications, 1983) at 194–97.Google Scholar

64 Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, Straits Used for International Navigation: Legislative History of Part III of the United Nations Convention on the Law of the Sea, vol II (New York: United Nations, 1992) at iii.Google Scholar

65 Ibid at 223–24 [emphasis added]. Corfu Channel, supra note 48.

66 Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No E.75.V.10), Plenary meetings, 55th Meeting, UN Doc A/CONF.62/WP.8/Part II (1975), vol IV.

67 Seabed Committee, Subcommittee II, Summary Records of the Fourth to the Twenty-Third Meetings, 6th Meeting, UN Doc A/AC.138/SC.II/SR.4-23 (1971) at 24–27.

68 Ibid, 11th Meeting, at 87–88.

69 Ibid, 12th Meeting, at 115–16.

70 Seabed Committee, Subcommittee II, Summary Records of the Thirty-Third to the Forty-Seventh Meetings, 36th Meeting, UN Doc A/AC.138/SC.II/SR.33-47 (1972) at 21–23.

71 Ibid, 40th Meeting, at 45–46.

72 Second Committee, supra note 24, 12th Meeting, A/CONF.62/C.2/SR.12 (1974) at paras 25–27, 29.

73 Ibid, 13th Meeting, at paras 22–26, 27.

74 Ibid at paras 44–47, 50–51.

75 Ibid, 11th Meeting, UN Doc A\CONF.62/C.2/SR.11 (1974) at paras 6–12.

76 Ibid, 13th Meeting, at paras 54–63. Chicago Convention on International Civil Aviation, 12 July 1944, 15 UNTS 295 [Chicago Convention].

77 Second Committee, supra note 24, 14th Meeting, A/CONF.62/C.2/SR.14 (1974) at paras 33–39.

78 Ibid at paras 49–50, 52, 54–57.

79 Ibid, 12th Meeting, UN Doc A/CONF.62/C.2/SR.12 (1974) at paras 16–21.

80 1958 Convention, supra note 20; Convention on the Continental Shelf, 29 April 1958, 499 UNTS 311; Convention on the High Seas, 29 April 1958, 450 UNTS 11; Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 UNTS 285.

81 Second Committee, supra note 24, 12th Meeting, A/CONF.62/C.2/SR.12 (1974) at paras 16–21.

82 Ibid, 14th Meeting, UN Doc A/CONF.62/C.2/SR.14, 1974 at paras 68–73.

83 “UK: Draft Articles on the Territorial Sea and Straits,” Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No 58.V.4), UN Doc A/CONF.62/C.2/L.3 (1974), vol III at [emphasis added].

84 Ibid [emphasis added].

85 Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No E.79.V.3), Plenary meetings, 103rd Meeting, UN Doc A/CONF.62/SR.103 (1978), vol IX at para 47.

86 Document C.2 / Informal Meeting 17, reproduced in Platzöder, supra note 63 at 23–24 [emphasis added].

87 Document C.2 / Informal Meeting 22, reproduced in Platzöder, supra note 63 at 30–33.

88 Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No. E.82.V.2), Plenary meetings, 9th Session, UN Doc A/CONF.62/WS12 (1980), vol XIV.

89 Although Greece submitted amendments relating to Part III, it later withdrew its proposal at the plenary meeting on 15 April 1982.

90 Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No. E.84.V.2), Plenary meetings, 169th Meeting, UN Doc A/CONF.62/SR.169 (1982), vol XVI at paras 1–4, 6.

91 The Law of the Sea: Status of the United Nations Convention on the Law of the Sea (United Nations, Sales No. E.85.V5) (1985) at 25 [emphasis in original].

92 See “The United Nations Convention on the Law of the Sea – A Historical Perspective” under the heading “Navigation” on the website of the UN Division for Ocean Affairs and the Law of the Sea, online: <http://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm>.

93 LOSC, supra note 12, art 39(3)(a).

94 Chicago Convention, supra note 76.

95 Ibid, art 44.

96 Ibid.

97 Ibid, art 12.

98 Ibid, art 37.

99 Ibid, art 38 [emphasis added].

100 Ibid, art 12 [emphasis added].

101 Civil Air Navigation Services Commercialization Act, SC 1996, c 20.

102 Online: Nav Canada <http://www.navcanada.ca/EN/products-and-services/Documents/AIP/Next/part_1_gen/1gen_eng.pdf>.

103 See “Oversight of Civil Aviation – Transport Canada” in 2012 Spring Report of the Auditor-General of Canada, ch 5, para 5.23, online: Office of the Auditor-General of Canada <http://www.oag-bvg.gc.ca/internet/English/parl_oag_201204_05_e_36469.html>.

104 Only twenty-four out of 178 “differences,” or 13.5 percent, relate to Annex 2, “Rules of the Air.”

105 Civil Air Navigation Services Commercialization Act, supra note 101.

106 Ibid.

107 Ie, Air Traffic Services Authority.

108 Ie, visual reference flight — ie, a flight using landmarks.

109 Canadian Aviation Regulations, SOR/96-433, online: Transport Canada <http://www.tc.gc.ca/eng/acts-regulations/regulations-sor96-433.htm>.

110 Civil Air Navigation Services Commercialization Act, supra note 101.

111 Ibid [emphasis added].

112 Issue No 247, effective 8 January 2015, at 180, online: Nav Canada <http://www.navcanada.ca/EN/products-and-services/Documents/DAH_Current_EN.pdf>.

113 Chicago Convention, supra note 76, art 5.

114 Ibid, art 6.

115 See the Blue Sky Policy, online: Transport Canada <http://www.tc.gc.ca/eng/policy/air-bluesky-menu-2989.htm>.

116 Ibid.

117 Chicago Convention, supra note 76, art 9(a).

118 Ibid.

119 Ibid, art 9(b).

120 LOSC, supra note 12, arts 38(1), 44.

121 Chicago Convention, supra note 76, ch 1 “Definition,” in Annex 2 to the “Rules of the Air.”

122 “Glossary,” Circular 328, Unmanned Aircraft Systems (2011), online: ICAO <http://www.icao.int/Meetings/UAS/Documents/Circular%20328_en.pdf>.

123 Ibid at 11, para 4.4.

124 Chicago Convention, supra note 76, Appendix 4, para 1.3.

125 UN Division for Ocean Affairs and the Law of the Sea, supra note 92.

126 LOSC, supra note 12, art 25(3).

127 Ibid, art 39(3)(a) [emphasis added].

128 Private email communication [on file with author].

129 Official Records of the Third United Nations Conference on the Law of the Sea, supra note 90.

130 Charter of the United Nations, (1945) 39 AJIL 190 [UN Charter].

131 Official Records of the Third United Nations Conference on the Law of the Sea, supra note 88.

132 LOSC, supra note 12, art 39(1).

133 IR McAndrew and K Witcher, “Design Considerations and Requirements for In-flight Refuelling of Unmanned Vehicles” (2013) 2:2 J Aeronaut Aerospace Eng 108.

134 Ibid.

135 Ibid.

136 Official Records of the Third United Nations Conference on the Law of the Sea, supra note 87.

137 Official Records of the Third United Nations Conference on the Law of the Sea, supra note 90.

138 Seabed Committee, Subcommittee II, Summary Records of the Fourth to the Twenty-Third Meetings, 7th Meeting, UN Doc A/AC.138/SC.II/SR.4-23 (1971) at 35–36.

139 Seabed Committee, Subcommittee II, Summary Records of the Fourth to the Twenty-Third Meetings, 10th Meeting, UN Doc A/AC.138/SC.II/SR.4-23 (1971) at 82.

140 Seabed Committee, Subcommittee II, Summary Records of the Twenty-Fourth to the Thirty-Second Meetings, 32nd Meeting, UN Doc A/AC.138/SC.II/SR.24-32 (1972) at 133.

141 Ibid.

142 G Oduntan, New Treaty Needed to Clarify Use of Drones (2014), online: University of Kent <http://www.kent.ac.uk/law/research/news.html>.

143 Ibid.

144 UN Charter, supra note 130.

145 The NWP “consists of a series of deep channels through Canada’s Arctic islands, extending about 900 miles (1,450 km) east to west, from north of Baffin Island to the Beaufort Sea, above Alaska.” Encyclopaedia Britannica, “Northwest Passage,” online: <http://www.britannica.com\EBchecked/topic/420084/Northwest-Passage>.

146 KM Manci et al, Effects of Aircraft Noise and Sonic Booms on Domestic Animals and Wildlife: A Literature Synthesis (1988), online: NPC Library <http://www.fs.fed.us/eng/techdev/IM/sound_measure/Manci_et_al_1988.pdf>. See also National Park Service, Report to Congress, Report on Effects of Aircraft Overflights on the National Park System (12 September 1994), online: <http://www.nonoise.org/library/npreport.htm>.

147 L Román, “The Inuit Silence,” True Day Films, online: <http://theinuitsilence.com>.

148 Flying Clean: Campaign to Cut Airplane Pollution, Issue Briefing: Impacts of Airplane Pollution on Climate Change and Health, online: <http://www.flyingclean.com/issue_briefings>.

149 “Aircraft Emissions: The Sky’s the Limit,” The Economist (8 June 2006), online: <http://www.economist.com/node/7033931>.

150 E Rosenthal, “Your Biggest Carbon Sin May Be Air Travel,” New York Times (26 January 2013), online: <http://www.nytimes.com/2013/01/27/sunday-review/the-biggest-carbon-sin-air-travel.html?_r=0>.

151 N Evershed, “World Carbon Dioxide Emissions by Country,” The Guardian (16 July 2013), online: <http://www.theguardian.com/news/datablog/interactive/2013/jul/16/carbon-emissions-carbon-tax>.

152 Arctic Waters Pollution Prevention Act, RSC 1985, c A-12 [AWPPA]. The AWPPA initially imposed strict safety and environmental requirements on all shipping within 100 nautical miles of Canada’s Arctic coastlines, including Canada’s Arctic islands. In 2009, the spatial scope of the AWPPA and its regulations was extended from 100 to 200 nautical miles. An Act to Amend the Arctic Waters Pollution Prevention Act, SC 2009, c 11, s 1.

153 The current Canadian declaration recognizing the compulsory jurisdiction of the International Court of Justice was filed on 10 May 1994. See online: International Court of Justice <http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3&code=CA>.

154 Second Committee, Official Records of the Third United Nations Conference on the Law of the Sea (United Nations, Sales No E.75.V.4), 12th Meeting, UN Doc A/CONF.62/C.2/SR-12 (1974) at paras 16–21 [emphasis added].

155 See Seabed Committee, supra note 50.

156 See Brüel, supra note 38.