Thursday, October 22, 2009

NOT SO "Innocent Passage"

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Our american Friends love to talk about "innocent Passage" and their right to pass through Canada's inland waters at Head Harbour Passage to reach their proposed LNG terminals in Passamaquoddy Bay..

I thought you all might be interested in the good word from the UN. So much for the "innocent" rights of our American friends.

Here it is:

Updated 12 February 2009

Status of the Convention and its implementing Agreements

Link to the Oceans and Law of the Sea: Status of the Convention and the implementing agreements
In its resolutions on oceans and the law of the sea, the General Assembly continuously stresses the importance of increasing the number of States parties to the Convention and the Agreement relating to the implementation of Part XI of the Convention in order to achieve the goal of universal participation. The General Assembly also reiterates its call upon all States that had not done so to become parties to these instruments.
The United Nations Convention on the Law of the Sea was open for signature on 10 December 1982 and entered into force on 16 November 1994. Out of 159 original UNCLOS signatories, 29 have yet to ratify. From among 38 States that did not sign UNCLOS or were not independent States at the time of its opening for signature, 17 have acceded or succeeded to it. Certain coastal States have not yet expressed their consent to be bound by the Convention. These were,  as at 30 September 2005: five in the African region (Republic of the Congo, Eritrea, Liberia, Libyan Arab Jamahiriya and Morocco); 10 in Asia (Cambodia, Democratic People’s Republic of Korea, Iran (Islamic Republic of), Israel, Niue, Syrian Arab Republic, Thailand, Timor-Leste, Turkey and United Arab Emirates), one in North America (United States of America) and six in Latin America and the Caribbean (Colombia, Dominican Republic, Ecuador, El Salvador, Peru and Venezuela). It appears, however, that in certain States non-parties, internal procedures are under way to enable them to become parties to UNCLOS. Developing landlocked States in Africa and Central Asia should also ratify or accede to UNCLOS, as Part X of UNCLOS dealing with access to and from the sea and freedom of transit provides the basic legal framework for the negotiation of modalities of such access and transit.

The Agreement relating to the implementation of Part XI of the Convention was adopted on 28 July 1994 (General Assembly resolution 48/263) and entered into force on 28 July 1996. The Agreement is to be interpreted and applied together with the Convention as a single instrument, and in the event of any inconsistency between the Agreement and Part XI of the Convention, the provisions of the Agreement shall prevail. After 28 July 1994, any ratification of or accession to the Convention represents consent to be bound by the Agreement as well. Furthermore, no State or entity can establish its consent to be bound by the Agreement unless it has previously established its consent to be bound by the Convention or unless it establishes such consent to be bound by the Agreement and the Convention at the same time.

Not all States parties to the Convention are parties to the Agreement relating to the implementation of Part XI. A number of States which became States parties to the Convention prior to the adoption of the Agreement on Part XI have yet to express their consent to be bound by the Agreement (see the table).These States should take the necessary steps in order to accede to that Agreement and thus to put their participation in the work of the International Seabed Authority on a sound legal footing.

The Agreement for the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks (the 1995 Agreement on Fish Stocks) was adopted on 4 August 1995 by the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. Unlike the Agreement relating to the implementation of Part XI of the Convention, there is no direct linkage between the 1995 Agreement on Fish Stocks and the Convention with respect to establishing the consent to be bound.

The Agreement was opened for signature until 4 December 1996 and received a total of 59 signatures.  The Agreement entered into force on 11 December 2001, 30 days after the date of deposit of the thirtieth instrument of ratification or accession. Although the Agreement provides, in its article 41, for the possibility of its provisional application, no State or entity has notified the depositary of its wish to do so.

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If you are interested in more on existing recent boundary treaties between Canada and USA as related to the UN and UNCLOs, these might prove to be a fun read. Enjoy!!

 Treaty to submit to binding dispute settlement the delimitation of the maritime boundary in the Gulf of Maine area, 29 March 1979
 Special Agreement between the Government of Canada and the Government of the United States of America to submit to a Chamber of the International Court of Justice the delimitation of the maritime boundary in the Gulf of Maine area, 29 March 1979
 Case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) International Court of Justice, 12 October 1984