2020-07-05 10:20:24
There is nothing better to energise your brain on Sunday than hair-splitting in the Law Journals which is also amazingly consequential.
On the pages of the Harvard Law Review there is an amusing debate about the status of Northwest Passage — a maritime straight which can potentially be used to pass directly from the Atlantic to the Pacific Ocean through the Arctic waters. The passage is not used, because currently it is covered in ice and breaking through it is too costly. However, as the ice is melting there is a debate whether the Northwest Passage should be regulated as international or Canadian waters. In the former case, the passage can be used by all nations, while in the latter the authorisation from Canada (potentially for a fee) should come first.
In order for the passage to be considered international waters, it has to pass geographic and functional test. First, it has to be a straight geographically and second, it has to to be used for navigation. There is no question regarding the first problem, but the functional test provokes fierce debates. The legal definition of international waters is: “straits which are used for international navigation”.
Canada thinks that this means that straights
historically used for navigation should become international waters, while the US claims that straights that can
potentially be used for navigation are international waters. Obviously, there is no historical use of the Northwest passage, therefore Canada's reading means that the straight stays Canadian, while the US reading means that it becomes international.
In the journal there is a perfect discussion on the grammar of the treaty: “The proper interpretation of this phrase, however, is unclear due to the way that it is structured. Because the phrase “straits which are used for international navigation” is in the present tense, there is not a strong indication, on the text’s face, as to whether the drafters intended that the test be one of historic or potential use. Since both readings are common in everyday language, we must refer to the context of statements that use the phrase “are used” to determine whether the statement refers to historic or potential use.”
Analysing context the author claims that the
potential use is more important than
historical, but the value of the article is in the discussion itself.
https://harvardlawreview.org/2020/06/the-potential-use-test-and-the-northwest-passage/
1.0K viewsedited 07:20