Maritime Navigation Rights and Canada's Arctic Waters

In response to the apparent pressures of "creeping" and "thickening" jurisdiction in offshore waters and the threats posed by this to sea lines of communication, the United States government formally established its Freedom of Navigation Program during the Carter administration in 1979. It was designed to bring international attention to the navigation provisions of UNCLOS and to support assertions of maritime navigation rights.110 These rights have been widely recognized as belonging to two distinct categories: movement rights which embrace the notion of 'mobility' and include such legal rights as transit passage through straits used for international navigation, innocent passage in territorial seas and archipelagic waters, archipelagic sea lanes passage, and high seas freedoms of navigation and overflight; and operational rights which include such activities as task force maneuvering, anchoring, maritime intelligence collection and surveillance, military exercises, ordnance testing and firing, and hydrographic and military surveys.111 While the movement rights were expressly set out in the text of the Convention, the operational rights had not been on the agenda for negotiations.112 Indeed as observed by Churchill and Lowe, “the United Nations Conferences on the Law of the Sea consciously avoided negotiation of the rules applicable to military operations on the seas.113

The freedoms of the seas reflect a strategic imperative which is held dear by many of the world's established and emerging powers. Elliot Richardson, who headed the U.S. delegation to the Third Conference, described the scope of the freedom of the seas in light of the development of the concept of the exclusive economic zone:

"[I]n giving coastal States sovereign rights over the living and non-living resources of a 200-mile 'exclusive economic zone,' the text preserves for other States 'the freedom of navigation and overflight' and 'other internationally lawful uses of the sea related to these freedoms such as those associated with the operation of the ships, aircraft and submarine cables and pipelines....' In the group which negotiated this language it was understood that the freedoms in question, both within and beyond 200 miles, must be qualitatively and quantitatively the same as the traditional high seas freedoms recognized by international law: they must be qualitatively the same in the sense that the included uses of the sea must embrace a range no less complete – and allow for the future uses no less inclusive – than traditional high-seas freedoms."114

The freedoms of the high seas115 are correctly considered to be broad and are firmly supported by many maritime States.116 The only explicit restriction on activities on the high seas are that they are to be conducted "with due regard" for the rights of other States.117 Of course, it may be further assumed that they are conducted in conformity with Art. 2(4) of the United Nations Charter. While the Convention reserves the high seas for "peaceful purposes",118 maritime States have long argued that the formulation of language invites the observation that the provision does not prohibit all activities conducted by military forces. This interpretation appears to complement Article 95 of the Convention which grants warships on the high seas complete immunity from the jurisdiction of any State other than the flag State.119

The law of the sea has long made accommodation for the exercise of the movement right of innocent passage. "Innocent passage" – a traditional right established in the nineteenth century customary law of the sea and described in detail in Section 3 of Part II of the Convention in Articles 17 through 32 – is normally available to ships passing through a coastal state's territorial sea.120 In accordance with Article 18(2) the "passage" must be "continuous and expeditious."121 In addition, while Article 19(1) confirms that “the passage is innocent as long as it is not prejudicial to the peace, good order or security of the coastal State”, Article 19(2) goes on to list a number of ways in which that passage could be objectively considered as prejudicial.122 Significantly for naval operations in Arctic waters, the Convention specifies that “in the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag.123

The Convention also provides international legal authority for the coastal State to exercise some regulatory control upon ships exercising the right of innocent passage through the territorial sea. The extent of the coastal State's authority, however, is restricted to matters of navigation, conservation of living resources of the sea, fisheries protection, pollution control, research and hydrographic surveys, and prevention of infringement of the customs, fiscal, immigration or sanitary laws of the coastal State.124 On the other hand, the coastal States are prohibited from regulating “the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.125 The Convention also provides the authority to establish sea lanes and traffic separation schemes126 and, notably, it places special obligations upon “foreign nuclear-powered ships and ships carrying nuclear …substances”.127 Articles 24 and 25 of the Convention prescribe the limits of the authorities of the coastal States to regulate and enforce their laws and regulations on foreign ships conducting innocent passage. Article 24 imposes the duty upon coastal States “not to hamper the innocent passage of foreign ships.” A further duty on coastal States in this regard is to not “impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage”, or to “discriminate in form or fact against ships of any State or against ships carrying to, from or on behalf of any State.128

Article 25 of the Convention provides the authority for the exercise of the right of protection of the coastal State. First, it allows a coastal State to take “the necessary steps in its territorial sea to prevent passage which is not innocent.” Second, where ships are “proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject.” Finally, the Convention allows coastal States, without discrimination, to “suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises.129

A recurring question in the past has been whether warships could exercise "innocent passage" at all. The issue was addressed by the International Court of Justice in the Corfu Channel Case where the court stated:

"It is, in the opinion of the Court, generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace."130

While the Convention does not explicitly preclude warships131 from exercising the right of innocent passage, it does provide lawful authority for the coastal State to impose a heavy regulatory burden upon a warship's passage and the Convention only allows the warship to exercise the passage under a continual threat of expulsion from the territorial sea.132 Finally, responsibility for any loss or damage suffered by the coastal State as a result of a passage undertaken in violation of the coastal States' laws and regulations, as well as of the Convention and international law, is explicitly placed upon the flag State of the warship or "other government ship".133

A question remains about the lawfulness of any coastal States' demands for prior approval or notification before consenting to the innocent passage of a foreign warship through its territorial sea. While there is no express requirement for prior notification to be found in the actual provisions of the Convention134, it would be fair to observe that the range of lawful activity that may be conducted by a foreign warship exercising innocent passage is quite narrow. While Article 32 of the Convention expresses the sentiment of the traditional state immunity afforded warships and other government vessels,135 the practical effect of the application of the national security suspension found in Article 25 combined with Articles 30 and 31, is to trim the lawful authority of a warship to enter a territorial sea without notification.

The exercise of "transit passage" through an international strait allows for the “continuous and expeditious transit of the strait between one part of the high seas or an economic zone and another part of the high sea or economic zone.136 The transiting vessel or aircraft shall:

  1. proceed without delay through and over the strait;
  2. refrain from the threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
  3. refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress;
  4. comply with other relevant provisions of this Part.137

The lawful exercise of "transit passage" through an international strait is a significant navigation right secured by the maritime states in the provisions of the Convention that imposes far less onerous restrictions than those placed upon ships exercising "innocent passage." For example, while "innocent passage" and "transit passage" must be similarly exercised in a "continuous and expeditious" manner, while vessels exercising "transit passage" are afforded the additional qualifier that they must only "proceed without delay". The obligations upon the activities of vessels imposed by sub-articles 39(b) and (c) leave ample authority for many naval activities, including submerged transit by submarines, the conduct of air operations, and military exercises that do not threaten the “sovereignty, territorial integrity, or political independence of States bordering the Strait.” 

The exercise of transit passage is not without restrictions: foreign ships conducting transit passage may not carry out marine scientific research or hydrographic surveys without the prior authorization of the bordering States138 and those bordering States may designate sea lanes and traffic separation schemes in the straits where necessary to promote the safe passage of ships and imposes the obligation upon ships in transit to respect the applicable sea lanes and traffic separation schemes.139 However, generally speaking, the scope of coastal State regulation of and enforcement over ships exercising their right of transit passage is narrower than the broad powers afforded coastal States over the exercise of innocent passage.

It is noteworthy that Article 42(1) of the Convention restricts the authority of bordering States to enact laws and regulations affecting the rights of vessels transiting international straits to matters relating to:

  1. the safety of navigation and the regulation of maritime traffic, as provided in article 41;
  2. the prevention, reduction and control of pollution, by giving effect to applicable international regulations, regarding the discharge of oil, oily wastes and other noxious substances in the strait;
  3. with respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear;
  4. the loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of States bordering straits.

Sub-article 42(2) requires that the coastal State's laws and regulations “not discriminate in form or in fact among foreign ships” and prohibits their application from having “the practical effect of denying, hampering or impairing the right of transit passage.” While Sub-article 42(4) requires foreign ships exercising the right of transit passage to comply with such laws and regulations, Sub-article 42(5) imposes international responsibility for loss or damage suffered by a bordering State upon the flag State or State of registry of a vessel entitled to sovereign immunity which acts in a manner contrary to such laws and regulations or other provisions of Part III (Straits Used For International Navigation, Articles 34 - 43) of the Convention. Article 43 provides the international legal authority for States bordering a strait and the user States to cooperate in the establishment and maintenance of the navigational and safety aids in the strait and for the prevention, reduction and control of pollution from ships. Article 44 sets out the duties of States bordering straits – in a manner similar to Sub-articles 42(2) and 42(3) – that they shall not hamper strait passage and they must give publicity to dangers to navigation or overflight within the strait.

Finally, there is no provision authorizing the suspension of "transit passage" as there is in Sub-article 25(3) in relation ships exercising the right of "innocent passage" through a territorial sea.140 In sum, there may be issues associated with the reconciliation of the Government of Canada's expectations of a high degree of regulatory control exercised over shipping transiting its historic internal waters with the lawful exercise of "transit passage".

"International straits" are defined in article 37 to be “straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.141 As previously noted, Canada has long denied that the Northwest Passage could be properly considered to be an "international strait" in accordance with the term presently defined in the Convention. Article 37 of the Convention imposes two criteria upon any characterization of a strait as an "international strait": first, a geographic criterion that the straits are “between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone”; and second, a functional criterion that the straits “are used for international navigation.” In relation to the geographic criterion, the Northwest Passage connects the Arctic Ocean in the west with the Davis Strait in the east and therefore satisfies the objective test. In relation to the functional test, however, there is dispute. Relying upon the judicial decision in the Corfu Channel Case – and the extensive international civilian and naval maritime traffic which had used the Corfu Channel – as an authority, Professor Pharand argued “that there has to be some appreciable degree of actual use over a period of time”. He noted the limited number of commercial and foreign military transits of the Northwest Passage that have actually occurred and judged that the Passage could not be characterized as an "international strait".142

Article 35(a) of the Convention provides that nothing in Part III of the Convention (Straits Used For International Navigation) affects “any areas of internal waters within a strait….” While this portion of the provision appears to preclude the exercise of the right of transit passage through a coastal State's internal waters, the sub-article goes on to provide an important exception to this rule “where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such; ....143

This operative phrase in Article 35(a) is similarly worded to that in Article 8(2) – related to the right of innocent passage through internal waters - and similarly imposes upon the coastal State the burden of asserting its exceptional claim of "historic internal waters". It is important to consider that in the case of the Northwest Passage, any failure to meet this burden would legitimize the exercise of the right of transit passage – vice mere innocent passage144 - by foreign civilian and naval vessels, since a saving provision in the Convention limiting the passage to "innocent passage" would not apply in this circumstance.145 Therefore, as with Canada's claim of "historic internal waters" between the straight baselines, Canada's assertion that the Northwest Passage is not an international strait constitutes another exception to the standard case under the Convention and Canada similarly bears the burden of supporting its claim of "historic internal waters."146


Footnotes

110 United States Oceans Policy, Statement by the President, March 10, 1983, Weekly Compilation of Presidential Documents 19 (1983, as cited in George Galdorisi, "The United States Freedom of Navigation Program: A Bridge for International Compliance with the 1982 United Nations Convention on the Law of the Sea?" (1996) 27 Ocean Development and International Law 399 at 401:

"The United States will accept and act in accordance with the balance of interests relating to traditional uses of the oceans – such as navigation and overflight. In this respect, the United States will recognize the rights of other States in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal States . . . . It has been the United States policy to exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the 1982 Law of the Sea Convention. The United States will not, however, acquiesce in unilateral acts of other States designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses".

111 Pirtle, Military Uses of Ocean Space, 8.

112 Giulio Pontecorvo, "A Note: Military Uses of the Ocean and the Law of the Sea Conference", Giulio Pontecorvo, ed., The New Order of the Oceans: The Advent of a Managed Environment, (1986) 60, cited in Pirtle, Military Uses of the Ocean, 9.

"The Third United Nations Conference on the Law of the Sea (UNCLOS III) was constrained, he observes, "by the military concerns of the two superpowers," which meant that "[w]hile there was no conspiracy of silence, in the drafting of the treaty articles the military concerns of the USSR and the United States were largely accepted by the negotiators. Thus the treaty defined the nonmilitary problems and issues".

113 R.R. Churchill and A.V. Lowe, The Law of the Sea, 3d, Melland Schill Studies in International Law, 1999, 421. As noted by Pirtle, Military Uses of Ocean Space, 9:

"Consequently, and despite the fact that the security interests of the maritime powers are barely one half-step removed from every word, line, and article in the non-seabed-mining parts of the Convention, military issues were either treated superficially or neglected altogether in UNCLOS III".

"Neglect" in this instance was intentional rather than accidental. It was the deliberate and hard-won product of a unified strategic policy by the United States, the Soviet Union, and their allies. Much of the Convention, therefore, was written in invisible ink.

114 Elliot L. Richardson, "Power, Mobility and the Law of the Sea" (1979-1980) 58 Foreign Aff. 902 at 916.

115 UNCLOS, Article 87.

116 In addition to the United States, Russia continues to be supportive of freedom of navigation rights and is resistant to the expanding jurisdictional claims by coastal States. As was observed in 1983, Bryan Ranft and Geoffrey Till, The Sea in Soviet Strategy, U.S. Naval Institute Press, 1984, 54: “Because of its geographical position Russia has been particularly concerned with establishing and if possible, increasing rights of freedom of passage through international straits. Her specific aim has been to gain acceptance for a special straits regime which would give a greater degree of freedom of transit than through territorial seas.” While during the UNCLOS negotiations the Chinese delegation – when China believed it would be a net exporter of oil – identified strongly with coastal States interests. However, in the early 1990's it became clear that China would be forced to import most of its oil and gas supplies, according to Zou Keyuan, China's Marine Legal System and the Law of the Sea (Martinus Nijhoff Publishers, 2005) 49, and it now “attaches great importance to the safety and unimpededness of the international water lanes in the South China Sea.” 

117 UNCLOS, Article 87(2).

118 UNCLOS, Article 88.

119 UNCLOS, Article 95.

120 There is a substantial body of law to support the description of "innocent passage" as a “right in the strict sense, the sovereignty of the coastal state is qualified by a correlative duty not to prevent foreign vessels from the normal exercise of that right.” Donat Pharand, "Innocent Passage in the Arctic" (1968) 6 Can. Y.B. Int'l L. 3 at 5.

121 UNCLOS, Article 18.

122 UNCLOS, Article 19:

"Article 19 – Meaning of innocent passage
  1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.
  2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:
    1. any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
    2. any exercise or practice with weapons of any kind;
    3. any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
    4. any act of propaganda aimed at affecting the defence or security of the coastal State;
    5. the launching, landing or taking on board of any aircraft;
    6. the launching, landing or taking on board of any military device;
    7. the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
    8. any act of willful and serious pollution contrary to this Convention;
    9. any fishing activities;
    10. the carrying out of research or survey activities;
    11. any act aimed at interfering with any systems of communication or any other facilities or any other facilities or installations of the coastal State;
    12. any other activity not having a direct bearing on passage."

123 UNCLOS, Article 20.

124 UNCLOS, Article 21(1). Also, UNCLOS, Article 27 – applicable to merchant ships and government ships operated for commercial purposes – sets out the limited circumstances in which a coastal State can exercise criminal jurisdiction on board a foreign ships passing through a State's territorial sea. These circumstances include:

  1. "if the consequences of the crime extend to the coastal State;
  2. if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;
  3. if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or
  4. if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances."

125 UNCLOS, Article 21(2).

126 UNCLOS, Article 22.

127 UNCLOS, Article 23.

128 UNCLOS, Article 24:

"Article 24 - Duties of the coastal State
  1. The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. In particular, in the application of this Convention, the coastal State shall not :
    1. impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or
    2. discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State.
  2. The coastal State shall give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea."

129 UNCLOS, Article 25:

"Article 25 – Rights of protection of the coastal State
  1. The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.
  2. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject.
  3. The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published."

130 [1949] I.C.J. Rep. 27, at 28. Donat Pharand, "Soviet Union Warns United States Against Use of Northeast Passage" (1968) 62 Am. J. Int'l L. 927. In August 1967, the U.S. Government advised the U.S.S.R. that two 169-ft Coast Guard icebreakers, the Edisto and the Eastwind, were circumnavigating the Arctic Ocean and that ice conditions were forcing them to transit through the Vilkitsky Straits, south of Severnaya Zemla in order to complete their passage. This transit would have taken the two icebreakers through waters claimed by the Soviets as constituting their territorial waters. The U.S. believed that the two ships could properly exercise the right of innocent passage and the U.S.S.R. took the contrary position. In the end the American vessels did not attempt the passage.

131 UNCLOS, Article 29 defines "warship" to be “a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.” 

132 UNCLOS, Article 30:

 "Article 30 - Non-compliance by warships with the laws and regulations of the coastal State.
If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately."

133 UNCLOS, Article 31:

 "Article 31 - Responsibility of the flag State for damage caused by a warship or other government ship operated for noncommercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law."

134 Joint Statement of the Rules of International Law Governing Innocent Passage, signed at Jackson Hole, Wyoming, on September 23, 1989, 28 I.L.M. 1444. The Soviet Union and United States attempted to establish customary practice otherwise when they issued the Joint Statement of Rules of International Law Governing Innocent Passage (the Jackson Hole agreement) in 1989.

135 UNCLOS, Art. 32:

 "Article 32 - Immunities of warships and other government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes."

136 UNCLOS, Article 38. The Convention's expansion of the territorial sea to 12 nm had threatened the high seas corridor in 116 of the world's straits.

137 UNCLOS, Article 39.

138 UNCLOS, Article 40.

139 UNCLOS, Article 41.

140 UNCLOS, Article 44.

141 UNCLOS, Article 37.

142 Pharand, supra note 109 at 669-670: “It is clear from the above review that by no stretch of the imagination could the Northwest Passage be classified as an international strait. Those who maintain that the Passage may be so classified obviously confuse actual use with potential use.” W. Michael Reisman, "The Regime of Straits and National Security: An Appraisal of International Lawmaking" (1980) 74 Am. J. Int'l L. 48 at 66, provided a critical view about the clarity of the provision: “From its inception, the use criterion has been unclear. Can the use requirement be fulfilled by the potential utility of a strait for international navigation without regard to the intensity of use, as the International Court suggested in the Corfu Channel case, or is some level of use actually required to fulfill this condition? The words "used for" in both the 1958 and 1977 versions would suggest a legislative overruling of the Corfu judgment. If that is the case, then future decision may establish some threshold of use higher than episodic transit in order for straits to retain their Article 37 character.” 

143 UNCLOS, Article 35 :

"Article 35 – Scope of this Part
Nothing in this Part affects:
  1. any areas of internal waters within a strait, except where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing internal waters areas which had not previously been considered as such;
  2. the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or
  3. the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits."

144 Donat Pharand, "Canada's Sovereignty over the Newly Enclosed Arctic Waters" (1987) 25 Can. Y.B. Int'l L. 325 at 329 observed that the right of innocent passage was not permitted through waters enclosed by straight baselines where there had been no prior historic title to those waters by customary international law. Professor Pharand noted that while the right of innocent passage would in fact apply in accordance with the 1958 Territorial Sea Convention, Canada was not a party to that treaty.

145 UNCLOS, Article 45:

"SECTION 3. INNOCENT PASSAGE

Article 45 - Innocent passage

  1. The regime of innocent passage, in accordance with Part II, section 3, shall apply in straits used for international navigation :
    1. excluded from the application of the regime of transit passage under article 38, paragraph 1; or
    2. between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State.
  2. There shall be no suspension of innocent passage through such straits."

UNCLOS, Article 38(1) states:

"Article 38
Right of transit passage
  1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics."

146 J.B. McKinnon, supra note 105 at 810. The conclusion that the Canadian claim that the strait is enclosed by the straight baselines is an exceptional claim is supported by some evidence of state practice. Chile used straight baselines to enclose the waters around some of its islands in the Straits of Magellan (only 3-nm wide at its narrowest) and Denmark enclosed islands on its east coast which effectively block access to the Baltic Sea. However, neither state chose to enclose the waters in the international strait with their claimed baselines.

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