Navigational Regimes of Particular Straits, Northeast Passage (Barents Sea and the Chukchi Sea)case study

The Northeast Passage is situated in the Arctic Ocean between the Barents
Sea and the Chukchi Sea, north of Russia and includes the Dmitry, Laptev
and Sannikov Straits. The United States conducted oceanographic surveys of
the area during the summers of 1963 and 1964. During the 1963 survey, the
USCGC Northwind (WAGB‑382) collected data in the Laptev Sea; during the
following summer, USS Burton Island (AGB‑1) surveyed in the East Siberian
Sea. On July 21, 1964, the Soviet Ministry of Foreign Affairs presented to the
American Embassy in Moscow the following aide mémoire regarding the Burton
Island voyage:
The Chief Administration of the Hydro Meteorological Service of the Council of
Ministers, USSR received a communication from the Embassy of the USA on the
forthcoming Arctic sailing of the US military ice‑breaker Burton Island and the
request to transmit to the ship information on hydrometeorological conditions.
Precise information on the Burton Island’s route has not been received from the
Embassy. In the event that this ship intends to go by the northern seaway route,
then it is necessary it take into consideration the following:
The Northern seaway route is situated near the Arctic coast of the USSR. This
route, quite distant from international seaways, has been used and is used only
by ships belonging to the Soviet Union or chartered in the name of the Northern
Seaways, the opening up, equipping, and servicing of which the Soviet side for a
period of decades has spent significant funds, and it is considered an important
national line of communication of the USSR. It should be noted that the seas,
through which the northern seaway route passes, are noted for quite difficult ice
and navigational conditions. Mishaps of foreign ships in this line of communications
could create for the USSR as well as for a bordering state, a series of complicated
problems. Therefore the Soviet Union is especially interested in all that
deals with the functioning of the given route.
It should also be kept in mind that the northern seaway route at some points
goes through Soviet territorial and internal waters. Specifically, this concerns all
straits running west and east in the Karsky Sea. Inasmuch as they are overlapped
two‑fold by Soviet territorial waters, as well as the Dmitry, Laptev and Sannikov
Straits, which unite the Laptev and Eastern Siberian Seas and belong historically to
the Soviet Union. Not one of these stated straits, as is known, serves for international
navigation. Thus over the waters of these straits the statute for the protection
of the state borders of the USSR fully applies, in accordance with which foreign
military ships will pass through territorial and enter internal sea waters of the
USSR after advance permission of the Government of the USSR, in accordance
with stipulated regulations for visiting by Foreign Military ships of territorial and
internal sea waters of the USSR published in “Navigation Notifications” (Izvesticheniyakh
Moreplavatelyan). In accordance with these regulations the agreement for entry of foreign military vessels is requested through the Ministry of Foreign Affairs USSR not later than 30 days before the proposed entry.
Although the notification of the proposed sailing of the American ice‑breaker
Burton Island was not received in the fixed period, the Soviet side in this specific
case, is ready, as an exception, to give permission for the passing of the vessel
Burton Island through the territorial and internal waters of the USSR in the aforementioned
Arctic Straits. In this regard it should not be forgotten that the American
vessel will fulfill requirements, called for by the regulations for foreign military
ships, visiting territorial and internal maritime waters of the USSR and specifically
article 16 of the cited regulations. At the same time the need is emphasized for the
strict observance in the future of all instructions of regulations for foreign military
vessels visiting territorial and internal maritime waters of the USSR.
Regarding the inquiries of the Embassy on passing to the vessel Burton Island
information on the hydrometeorological conditions during its Arctic sailing, the
competent Soviet organizations are willing to fulfill this request and transmit the
available information. For this, the American side must provide exact data of
the schedule and route of the Burton Island, as well as data, necessary for the
establishment of radio contacts with it.
On June 22, 1965, the United States replied in writing, stating in part:
While the United States is sympathetic with efforts which have been made by
the Soviet Union in developing the Northern Seaway Route and appreciates the
importance of this waterway to Soviet interests, nevertheless, it cannot admit that
these factors have the effect of changing the status of the waters of the route
under international law. With respect to the straits of the Karsky Sea described as
overlapped by Soviet territorial waters it must be pointed out that there is a right
of innocent passage of all ships through straits used for international navigation
between two parts of the high seas and that this right cannot be suspended. This
is clear from the provisions of the Convention on the Territorial Sea and the
Contiguous Zone adopted at Geneva in 1958 to which both the United States
and the Soviet Union are parties. In the case of straits comprising high seas as
well as territorial waters there is of course an unlimited right of navigation in the
high seas areas. . . .
For the reasons indicated the United States must reaffirm its reservation of its
rights and those of its nationals in the waters in question whose status it regards
as dependent on the principles of international law and not decrees of the coastal
state.
Thereafter the Northwind conducted its transit during July to September, 1965.
On October 27, 1965, the Soviet Union protested in a note which read as
follows:

According to information of competent Soviet authorities, U.S. Coast Guard icebreaker,
Northwind, during its voyage in the Kara Sea in July–September of this
year, conducted there explorations of sea bottom and suboceanic area. This was
also reported in the American press.
As is well known, bottom and suboceanic area of the Kara Sea, being in geological
respect the direct continuation of the continental part of the USSR, constitutes
continental shelf which, pursuant to the 1958 Geneva Convention on the Continental
Shelf, is subject to the sovereign rights of the USSR. Said Convention, to
which both the USSR and the USA are parties, provides in article 5, paragraph 8,
that agreement of the littoral State is required for exploration of the continental
shelf.
Conduct of the above‑mentioned explorations of the USSR continental shelf
in the Kara Sea, without agreement thereto having been obtained from competent
USSR authorities, constituted a violation of the 1958 Continental Shelf
Convention.
The Ministry protests against the unlawful conduct by the American ice‑breaker
of exploration of the Soviet continental shelf in the Kara Sea and expects that the
Government of the United States will take the necessary steps to prevent similar
actions.
The United States replied in a note, as follows:
The Ministry’s note referring to the voyage of the United States Coast Guard
[ice‑breaker] Northwind in the Kara Sea during July to September of this year
charges that the vessel carried on explorations of the seabed of the continental
shelf without obtaining the permission required by paragraph 8, Article 5 of the
Convention on the Continental Shelf adopted at Geneva in 1958 to which both
the United States and the Union of Soviet Socialist Republics are parties.
The Ministry is misinformed. During its voyage of oceanographic exploration
in the area the Northwind did take a number of core samplings of the seabed. A
few of these samplings were taken in the deep which parallels Novaya Zemlya on
the east and a more extensive sampling of the sea bottom was done in the deep
water north of Novaya Zemlya and east of Zemlya Frantsa Iosifa and also in the
deep water west of Severnaya Zemlya. The data collected during this operation
will be made available to the Union of Soviet Socialist Republics through the
World Data Center System. There was no exploration of the continental shelf in
the Kara Sea.
In view of the foregoing the Ministry’s protest is rejected as without foundation
in fact.
In 1967, the United States planned an Arctic circumnavigation by the U.S. Coast
Guard icebreakers Edisto and East Wind, from August 10 to September 21, 1967.

The United States advised the Soviet government of the planned route in a note
dated August 14, 1967:
The Department of State wishes to advise the Embassy of the Union of Soviet
Socialist Republics that two United States oceanographic icebreakers will, as in
previous years, undertake regular survey operations in the Arctic Ocean in the
summer of 1967.
The US Coast Guard icebreakers Edisto and East Wind will conduct oceanographic
research surveys from approximately August 10 to September 21. From
a point south of Greenland, the ships will proceed eastward on a track running
north of Novaya Zemlya and Severnaya Zemlya into the Laptov Sea, the East
Siberian Sea and through the Canadian Archipelago before returning to the
United States.
As in previous oceanographic surveys of this sort the operations will be conducted
entirely in international waters.
The Soviet Union replied on August 25, 1967, with the following note:
By its aide mémoire of August 16, 1967, US Department of State informed the
USSR Embassy in Washington of Arctic circumnavigation by US Coast Guard
icebreakers “Edisto” and “East Wind,” stating that they would proceed eastward
along [a] route north of Navaya Zemlya and Severnaya Zemlya.
However, according to information of competent Soviet authorities, above
mentioned American icebreakers have entered the Karsky Sea and are proceeding
in direction of Vilkitsky Straits, which are territorial waters of the USSR.
In this connection, the Ministry recalls to the Embassy that navigation by any
foreign naval vessel through the Straits of Karsky Sea, as well as through Dmitry
Leptev and Sannikov Straits, is subject to the Statute on the Protection of the
USSR Borders, under which foreign naval vessels shall pass through territorial and
internal sea waters of the USSR with prior permission by the Government of the
USSR to be requested 30 days in advance of passage contemplated. The position
of the Soviet Government on this question was set forth in detail in USSR MFA’s
aides mémoire of July 2, 1964 and July 26, 1965.
Earlier that day the American Embassy in Moscow had sent Note No. 340
notifying the Ministry of Foreign Affairs that the icebreakers had been blocked
by ice in passing north of Severnaya Zemlya and, to continue circumnavigation,
it would be necessary for Eastwind and Edisto to transit Vilkitsky Straits. On
August 28, 1967, the Chief of the American Section Soviet Ministry of Foreign
Affairs made an oral demarche on the American Deputy Chief of Mission, as
reported in a cable to the Department of State:

Soviet Maritime Fleet had today received communication from U.S. Coast Guard
icebreaker “Edisto” in which the Commanding Officer informed Soviet authorities
that “Edisto” and “Eastwind” had encountered ice preventing passage to north
of Severnaya Zemlya and therefore proposed to effect innocent passage through
Vilkitsky straits on or about August 31. Communication from U.S. Coast Guard
icebreaker also stated that Soviet Ministry of Foreign Affairs had been advised of
proposed transit of straits.
Kornienko said that he felt it necessary to remove any misunderstanding which
might exist in this matter. He said that Ministry of Foreign Affairs had not been
advised of proposed passage of U.S. icebreakers through straits since notification
thirty days in advance of attempted passage through Soviet territorial waters, as is
required by pertinent Soviet regulations, had not been received.
The United States responded in a note delivered 7:30 pm local time, August 30,
1967, to the Soviet Ministry of Foreign Affairs, Moscow:
The Embassy of the United States of America refers to the aide.memoire of August
24 of the Ministry of Foreign Affairs of the Union of Soviet Socialist Republics
and to the statement by the Ministryfs authorized representative on August 28,
and, on instructions, strongly protests the position taken by the Soviet Government
with regard to the peaceful circumnavigation of the Arctic by the United
States Coast Guard icebreakers “Edisto” and “Eastwind.”
As the Ministry is aware, the circumnavigation by the “Edisto” and “Eastwind”
was undertaken as a part of regular scientific research operations in the Arctic
Ocean. The Department of State, as a matter of courtesy, informed the Soviet
Government of these operations. Owing to unusually severe ice conditions the
icebreakers failed in their efforts to pass north of Severnaya Zemlya and, accordingly,
on August 24 Embassy informed the Ministry by note that the vessels would
find it necessary to pass through Vilkitsky Straits in order to continue their voyage.
Rather than facilitating the accomplishment of this peaceful voyage, the Ministry
in its aide.memoire of August 24 and particularly in the oral statement of its
authorized representative on August 28 has taken the unwarranted position that
the proposed passage of the “Edisto” and “Eastwind” would be in violation of
Soviet regulations, raising the possibility of action by the Soviet Government to
detain the vessels or otherwise interfere with their movement.
These statements and actions of the Soviet Government have created a situation
which has left the United States Government with no other feasible course but
to cancel the planned circumnavigation. In doing so, however, the United States
Government wishes to point out that the Soviet Government bears full responsibility
for denying to United States vessels their rights under international law, for
frustrating this scientific endeavor and for depriving the international scientific
community of research data of considerable significance.
. . . .
Furthermore, the Statute on Protection of the USSR State Borders, cited in
the Ministryfs aide.memoire of August 24, cannot have the effect of changing the
status of waters under international law and the rights of foreign ships with respect to them. These rights are set forth clearly in the Convention on the Territorial
Sea and the Contiguous Zone of April 29, 1958, to which the Soviet Union is a
party. The United States Government wishes to remind the Soviet Government, as
it has on previous occasions, that there is a right of innocent passage for all ships,
warships included, through straits used for international navigation between two
parts of the high seas, whether or not, as in the case of the Vilkitsky Straits, they
are described by the Soviet Government as being overlapped by territorial waters,
and that there is an unlimited right of navigation in the high seas areas of straits
comprising both high seas and territorial seas.
Moreover, since the Ministry in its aide‑mémoire of August 24 has referred to
the Dmitry, Laptev and Sannikov Straits, although they are not involved in the
present case, the United States Government wishes to reiterate its position, stated
most recently in its aide‑mémoire of June 22, 1965, that it is not aware of any
basis for the Soviet claims to these waters.
The United States Government wishes to emphasize that it regards the conduct
of the Soviet Government in frustrating this scientific expedition as contrary both
to international law and to the spirit of international scientific cooperation to
which the Soviet Government has frequently professed its support. Actions such as
these cannot help but hinder the cause of developing international understanding
and the improvement of relations between our two countries.
On August 31, 1967, the State Department spokesman summarized the situation,
as follows:
On August 16 the U.S. Coast Guard announced that the 269‑foot Coast Guard
ice‑breakers Edisto and Eastwind planned an 8,000 mile circumnavigation of the
Arctic Ocean conducting scientific research en route. Their itinerary called for
them to travel north of the Soviet islands of Novaya Zemlya, Severnaya Zemlya,
and the New Siberian Islands.
The planned course was entirely on the high seas and, therefore, the voyage
did not require any previous clearance with Soviet authorities. Nevertheless, the
Soviet Government was officially informed of these plans just prior to the public
announcement.
However, heavy ice conditions made it impossible for the vessels to proceed
north of Severnaya Zemlya. On August 24 our Embassy in Moscow notified the
Soviet Ministry of Foreign Affairs of this situation and stated it would be necessary
for the two vessels to pass through Vilkitsky Straits south of Severnaya Zemlya in
order to complete their journey.
In response the Soviet Ministry of Foreign Affairs made a statement to our
Embassy that the straits constituted Soviet territorial waters.
On August 28, as a result of a routine message from the icebreakers to the
Soviet Ministry of the Maritime Fleet, the Soviet Ministry of Foreign Affairs reaffirmed
its declaration of August 24 and made it clear that the Soviet Government
would claim that passage of the ships through the Vilkitsky Straits would be a
violation of Soviet frontiers.

Under these circumstances the United States considered it advisable to cancel
the proposed circumnavigation. The Edisto has now been ordered to proceed
directly to Baffin Bay, and the Eastwind was ordered to remain in the area of
the Kara and Barents Seas for about a month to conduct further oceanographic
research.
On August 30 our Embassy in Moscow set a note strongly protesting the Soviet
position. The note pointed out that Soviet law cannot have the effect of changing
the status of international waters and the rights of foreign ships with respect
to them. These rights are set forth clearly in the Convention on the Territorial
Sea and the Contiguous Zone of April 29, 1958, to which the Soviet Union is
a party.
There is right of innocent passage for all ships, through straits used for international
navigation between two parts of the high seas, whether or not, as in the case
of the Vilkitsky Straits, they are described by the Soviet Union as being overlapped
by territorial waters, and there is an unlimited right of navigation in the high
seas of straits comprising both high seas and territorial waters. Clearly, the Soviet
Government, by denying to U.S. vessels their rights under international law, has
acted to frustrate a useful scientific endeavor and thus to deprive the international
scientific community of research data of considerable significance.