Abstract
Arctic sea ice has been retreating as a result of the global warming. Arctic sea ice extent for April 2018 averaged 13.71 million square kilometers. This figure shows far less sea ice compared to the average extent from 1981 to 2010. Meanwhile, 287 times of maritime transits through the Northwest Passage have been made during the 2017 and the first ship traversed the Northern Sea Route without the assistant of ice-breaker in August 2017. Commercialization of the Arctic Passage means significant economic and strategic advantages by shortening the distance. In this article, 'Arctic Passage' means Northern Sea Route along the Arctic coast of Russia and Northwest Passage crossing Canadian Arctic Ocean. As climate changes, the potential feasibility of the Arctic Passage has been drawing international attention. Since navigation in this area remains hazardous in some aspects, IMO adopted Polar Code to promote safe, secure and sustainable shipping through the Arctic Passage. Futhermore, Russia and Canada regulate foreign vessels over the maritime zones with the authority to unilaterally exercise jurisdiction pursuant to the Article 234 of UNCLOS. The dispute over the navigation regime of the arctic passage materialized with Russia proclaimed Dmitrii Laptev and Sannikov Straits as historically belong to U.S.S.R. in the mid 1960s and Canada declared that the waters of the passage are historic internal waters in 1973 for the first time. So as to support their claims, In 1985, Russia and Canada established straight baseline including Northern Sea Route and Northwest Passage. The United States has consistently protested that the Northern Sea Route and Northwest Passage are straits used for international navigation which are subject to the regime of transit passage. Firstly, it seems that Russia and Canada do not meet the basic requirements for acquiring a historic title. Secondly, since the Law of the Sea had adopted before the establishment of straight baseline over the Russian Arctic Archipelago and the Canadian Arctic Archipelago, Ships can exercise at least the right of innocent passage. Lastly, Northern Sea Route and Northwest Passage have fulfilled the both geographical and functional criteria pertaining to the strait used for international navigation under the international law. Especially, should the arctic passage become commercially viable, it can be expected to accumulate the functional criterion. Russia and Canada regulate the ships navigate in their maritime zones by adopting the higher degree of an environmental standard than generally accepted international rules and standard mainly under the Article 234 of UNCLOS. However, the Article 234 must be interpreted restrictively as this contains constraint on the freedom of navigation. Thus, it is reasonable to consider that the Article 234 is limited only to the EEZ of coastal states. Therefore, ships navigating in the Arctic Passage with the legal status of the territorial sea and the international straits under the law of the sea have the right of innocent passage and transit passage as usual.