International Law and Politics of the Arctic Ocean : Essays in Honor of Donat Pharand [1 ed.] 9789004284593, 9789004284586

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International Law and Politics of the Arctic Ocean

International Law and Politics of the Arctic Ocean Essays in Honor of Donat Pharand Edited by

Suzanne Lalonde Ted L. McDorman

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data International law and politics of the Arctic Ocean : essays in honor of Donat Pharand / Edited by Suzanne Lalonde, Ted L. McDorman.   pages cm  Includes index.  ISBN 978-90-04-28458-6 (hardback : alk. paper) -- ISBN 978-90-04-28459-3 (e-book) 1. Law of the sea--Arctic Ocean. 2. Territorial waters--Arctic Ocean. I. Lalonde, Suzanne, editor. II. McDorman, Ted L., editor. III. Pharand, Donat, honouree.  KZ4110.P65I58 2015  341.4’5091632--dc23                       2014037723

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISBN 978-90-04-28458-6 (hardback) ISBN 978-90-04-28459-3 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents Foreword Ix Donald McRae Co-Editors’ Preface x

Part 1 Introduction 1

Donat Pharand The Arctic Scholar 3 Suzanne Lalonde

Part 2 Arctic Ocean Regional Governance 2

The Arctic Region Council Revisited Inspiring Future Development of the Arctic Council 55 Kristin Bartenstein

3 Lessons Learned and Lost from Pharand’s Arctic Regional Council Treaty Proposal 76 Andrea Charron 4

Pharand’s Arctic Treaty Would an Antarctic Treaty-Style Model Work in the Arctic? 87 Julia Jabour

Part 3 Arctic Shipping and Navigation 5 Article 234 of the United Nations Convention on the Law of the Sea Its Origins and Its Future 111 Armand de Mestral

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CONTENTS

A Note on Making the Polar Code Mandatory 125 J. Ashley Roach

7 A Note on the Potential Conflicting Treaty Rights and Obligations between the IMO’s Polar Code and Article 234 of the Law of the Sea Convention 141 Ted L. McDorman 8

The United States and Arctic Straits The Northwest Passage and the Bering Strait 160 Donald R. Rothwell

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Analysis of Maritime Transit Trends in the Arctic Passages 180 Frédéric Lasserre and Olga Alexeeva

Part 4 Bilateral Relations 10 Canada’s Arctic Waters Circumnavigating the Legal Dispute 197 Bernard H. Oxman 11

Understanding the Canada-United States Arctic Relationship 201 Elizabeth B. Elliot-Meisel

12 The Dog in the Manger—and Letting Sleeping Dogs Lie The United States, Canada and the Sector Principle, 1924–1955 216 P. Whitney Lackenbauer and Peter Kikkert 13 Canada–Russia Relations in the Arctic Conflictual Rhetoric, Cooperative Realities 240 Jonathan R. Edge and David L. VanderZwaag

Part 5 Specific Arctic Legal Issues 14 Does Recent Practice of the Russian Federation Point to an Arctic Sunset for the Sector Principle? 269 Alex G. Oude Elferink

C ONTENTS

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Uncovered and Unstable Coasts Climate Change and Territorial Sea Baselines in the Arctic 291 Clive Schofield and Blanche Sas

16 Delineation of the Outer Limits of Canada’s Arctic Ocean Continental Shelf and its Delimitation with Neighboring States: Does It Matter Which Comes First? 415 Andrew Serdy 17

A Note on Arctic Information Platforms and International Law 434 Betsy Baker Index 447

Foreword A series of essays honouring the scholarship of Donat Pharand has been long overdue and the editors are to be congratulated on bringing this book to fruition. Properly designated “The Arctic Scholar” by Suzanne Lalonde, Pharand is the father of Arctic legal scholarship in Canada and, indeed, around the world. His work opened up the discussion of issues that have become matters of intense public debate – the Northwest Passage, the status of waters, historic title, Arctic straits, the Arctic seabed and others. Anyone entering the field starts with the work of Pharand. A prodigious researcher, Pharand sought out his material in Canada, in France, in the Netherlands, in Russia, in the United States and at the Scott Polar Institute in Cambridge, as well as on vessels in the Arctic. He wrote about the Arctic; he spoke about the Arctic; he gave advice to governments on the Arctic; he had much influence on the development of Canadian Arctic policy. A scholar and a communicator, yet a modest man, who is generous to others in the field, and the last ever to talk about his own achievements. The essays in this volume reflect the fact that Donat Pharand’s influence is widespread. Scholars from across Canada, from the United States, from Europe and Australia, from law and other disciplines, have joined to pay tribute through this volume to Pharand’s indelible contribution to the field. Reading these essays provides an excellent opportunity to reflect on the pervasiveness of Pharand’s contribution, his detailed knowledge of the geography, the history, the social economy and the law. Now in his 93rd year, Donat Pharand retains an active interest in Arctic issues, no doubt never anticipating that the field that he and a few others occupied in the 1950s and the 1960s would become so prominent with a prolific and still burgeoning scholarly literature. But, Pharand can take satisfaction in the fact that this literature as well as the policy initiatives of governments and the critical analyses to which they have been subject, find their seed in his work of 50 and 60 years ago. This volume provides some recognition of that immense contribution. Donald McRae

Co-Editors’ Preface No scholar or government official can contemplate serious thinking or work on Arctic Ocean legal and policy issues without first coming to grips with Professor Donat Pharand’s groundbreaking (or ice-breaking) research. For over fifty years, Pharand investigated, researched and analysed the key legal issues that confronted the Arctic region. In 1955, decades before international scientific reports sounded the climate change alarm bell and warned of catastrophic sea-ice loss, Professor Pharand considered the potential repercussions of increased navigation in the Arctic. He was among a small group that realized early in the 1990s the critical need for a regional Arctic body to facilitate cooperation among the Arctic States and to give a much needed voice to the region’s indigenous populations. Professor Pharand’s scholarship delved into many of the most technical and challenging legal rules and principles governing the uses of the Arctic Ocean. His systematic, detailed and thorough analysis of the sector theory, of the distinction between historic title and the consolidation of title, of the elements that validate the drawing of straight baselines, as well as many other fundamental legal concepts, are the starting point for legal research and policy analysis on the Arctic. This volume is an acknowledgment of this reality and recognition of the collective debt that is owed to Professor Pharand by today’s academics and others who rely on his foundational body of work. This volume was not only conceived of as a testament to the enduring legacy of Pharand’s written work, but also in recognition of his generosity to other scholars and researchers whether from Canada or abroad. Throughout his long and illustrious career, Professor Pharand always welcomed the chance to share his passion for the law of the sea and the Arctic. That this often involved spirited discussions over a glass or two of his beloved sweet sherry only made the interactions more memorable. And no one who witnessed a “Pharand talk” will forget the style and humor of the provocateur punctuated by – the pause, raise of the hand, change in cadence and the delivery of a clear and insightful explanation of a technical point of law. For one of the editors, Professor Pharand has been an attentive mentor, generously and patiently sharing his immense knowledge of the issues and the accumulated wisdom of a lifetime devoted to the Arctic. For both editors, Pharand has been a precious sounding-board and a very willing and valuable collaborator. With this collection of essays, the editors and all the contributors wish to express their sincere thanks and heartfelt appreciation to Professor Pharand – the Arctic Scholar.

C O-EDITORS’ PREFACE

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This volume would not have been possible without the generous administrative support of Gail Rogers at the Faculty of Law, University of Victoria. The editors thank her for her patience and assistance. The editors are also extremely grateful to Susan Rolston at Seawinds Consulting Services in Halifax for her technical expertise and hard work in finalizing the manuscript for publication. The financial assistance provided by the Canadian ArcticNet Network of Excellence is also very gratefully acknowledged. Finally, the editors wish to express their sincere thanks and gratitude to Professor Don McRae who, despite difficult circumstances, generously and enthusiastically agreed to pen the Foreword to this volume. The Arctic region is experiencing unprecedented change at an alarming rate, bringing with this incredible opportunities and daunting challenges. Without a doubt, Professor Pharand’s discerning and exhaustive body of work will be of essential assistance and guidance to those charged with and dedicated to ensuring the effective protection of the Arctic’s beauty, wealth and populations.

PART 1 Introduction

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chapter 1

Donat Pharand

The Arctic Scholar Suzanne Lalonde



Introduction

Donat Pharand, emeritus professor of law at the University of Ottawa,1 is a true scholar under any definition—a learned person, someone who by long study has gained mastery in one or more disciplines, a person who uses the mind creatively and who is skilled in academic disputation, a specialist in a given branch of knowledge, a person of high literary or scientific attainments, and one engaged in the pursuit of learning. Although Pharand, like so many other Canadians of his generation, has worn different hats while making his way in the world—lieutenant in the Canadian army, insurance adjuster, stevedore, practicing lawyer—his most important career has undoubtedly been as a legal scholar, international arbitrator, government consultant, and law professor. Drawn to the discipline of international law as a young law student, it was the Arctic that first captured his interest and imagination. For over fifty years, Pharand has been writing passionately about the Arctic and the many pressing issues there that need to be addressed. In fact, Pharand has dedicated his entire academic career to the advancement of legal knowledge on issues affecting the Arctic. In contrast, most international academics have come to the topic indirectly, in the course of their research in other specialized fields. Experts on the law of the sea will perhaps at some point have discussed whether the Arctic Ocean is in fact an enclosed or semi-enclosed sea. Scholars interested in continental shelf delimitation might at some juncture have analysed this issue in the Arctic context. There is, however, no other academic who has been so consistently involved with legal issues affecting the Arctic and over such a considerable period of time.

* Professor, Faculty of Law, Université de Montréal. The author is grateful to UBC Press for the permission to reproduce an abridged and modified version of the article published in volume 44 (2006) of the CYIL at pages 2 to 93. 1 Although trained in the Common Law, Donat Pharand is an emeritus professor of the Civil Law section of the Faculty of Law at the University of Ottawa.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004284593_002

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Beginning with his doctorate in Paris (1955)2 and then, later, with his doctorate of juridical science (SJD) in Michigan (1968),3 Pharand’s scholarship reveals a single-minded concentration on the Arctic. Indeed, while Pharand has been a prolific writer on the law of the sea matters generally, his particular focus has always been on the Arctic, particularly the Canadian Arctic archipelago.4 Over the course of his career, he has published over thirty articles in both French and English.5 And to this impressive list must be added three books, which have been highly praised by other experts in the field: The Law of the Sea of the Arctic with Special Reference to Canada,6 Northwest Passage: Arctic Straits,7 and Canada’s Arctic Waters in International Law.8 His knowledge of the issues is immeasurable. It is, therefore, eminently appropriate that his life’s work and research on the Arctic should be acclaimed and celebrated. Pharand’s early writings are concerned with legal principles and concepts relevant to the question of Canadian sovereignty in the Arctic, whether over land, sea or ice. However, there is over time an evident shift in Pharand’s focus 2 Supervised by Charles Rousseau, Pharand successfully defended his doctoral thesis, “La théorie des secteurs dans l’Arctique à l’égard du Droit international,” at La Sorbonne on 20 December 1955. The members of his examining committee were Charles Rousseau (president),Paul Reuter and Paul Bastid. Rousseau later wrote the following testimonial: “The thesis is a remarkable work by its documentation, its in-depth analysis and its objective conclusions, which does the greatest honour to its author. The jury was unanimous in awarding it the distinction ‘Very Good’ and recommending it for a prize.” Certificate dated 26 December 1955. D. Pharand’s personal files (on file with the author). 3 Pharand successfully completed the SJD programme at the University of Michigan under the supervision of William B. Bishop, a former assistant legal advisor at the United States State Department (1939–1947). 4 In a 1978 interview with Montreal freelance journalist Louise Abbott, Pharand explained that he “became interested first in the Arctic rather than in the law of the sea.” L. Abbott, “Donat Pharand: Studying the Law of the Sea of the Arctic,” Hearsay 3, no. 2 (1978): 10. 5 Pharand’s first article on the law of the sea of the Arctic was “Soviet Union Warns United States against Use of Northeast Passage,” American Journal of International Law 62 (1968): 927 [“Soviet Union Warns United States”]. His most recent article, an exhaustive summary of the issues and principles involved in the debate over the Northwest Passage was published in 2007: “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development & International Law 38 (2007): 3–69 [“Arctic Waters”]. 6 Donat Pharand, The Law of the Sea of the Arctic with Special Reference to Canada (Ottawa: University of Ottawa Press, 1973) [Law of the Sea]. 7 Donat Pharand, Northwest Passage: Arctic Straits (Dordrecht: Martinus Nijhoff Publishers, 1984) [Arctic Straits]. 8 Donat Pharand, Canada’s Arctic Waters in International Law (Cambridge: Cambridge Univer­ sity Press, 1988) [Canada’s Arctic Waters].

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to the specific issue of the legal status of the Arctic waters, by far the most contentious legal issue. For this reason, after an initial section that considers Pharand’s conclusions concerning the Arctic landmass, this contribution will concentrate on his study of the legal regime governing the waters of the Arctic archipelago.9 Following this examination, the contribution will consider Pharand’s writings on, and his analysis of, the sector theory and his bid to determine whether it can serve as a root of title for the acquisition of sovereignty, including over areas of the sea. The contribution will then examine Pharand’s study of the doctrine of historic waters and his conclusions as to its applicability to the waters of the Canadian Arctic. Pharand’s work on the law of straight baselines and the validity of such a system in the Canadian Arctic archipelago will form the basis of the next section of the contribution, while the final section will consider Pharand’s conclusions as to the legal status of the Northwest Passage, arguably the most significant legal and political issue for Canada in the Arctic.

Scholar of the Arctic and the Law of the Sea

Arctic Landmass Arctic Islands Though recent debates about Canada’s sovereignty over the Northwest Passage have left many Canadians under the misapprehension that ownership of the islands in the Canadian Arctic archipelago may be legitimately contested, Pharand has been trying to set the record straight on this question for over forty years. Indeed, Pharand’s first sentence in his 1971 article on the concept of historic waters is unequivocal: “There is no doubt about Canada’s territorial sovereignty over the islands forming the Canadian Arctic Archipelago nor about Canada’s exclusive rights over the continental shelf of those islands.”10 Pharand repeats this assertion and explains its basis in his 1979 lectures at the prestigious Hague Academy of International Law: Canada’s sovereignty over the Arctic archipelago north of its coast is based essentially on the discoveries by British explorers and the transfer of title from Great Britain made in 1870 and 1880. Its sovereignty over the 9 10

The plan for this article is to a large extent borrowed from Pharand’s own 1988 work, id. Donat Pharand, “Historic Waters in International Law with Special Reference to the Arctic,” University of Toronto Law Journal 21(1971): 1, at 1 [“Historic Waters”]. He concedes, however, that “the extent and basis of Canada’s jurisdiction over the waters of the archipelago in question is not as certain.” Id.

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whole of the archipelago has been completed and consolidated over the years by official Canadian expeditions and State activities through government officials, in particular the Royal Canadian Mounted Police.11 As Pharand explains, though Canada has at times invoked the sector theory, notably in 1925 following its decision to abandon its claim to Wrangel Island, it has been careful to “solidify its claim on the basis of the traditional principle of occupation and control.”12 Canada’s sovereignty over the Arctic islands, notes Pharand in his Hague lectures,13 has only seriously been challenged on two occasions: once by Denmark in 1920 over Ellesmere Island and the other by Norway in 1928 over the Sverdrup Islands.14 Although the Danish government declared that it considered Ellesmere Island a ‘no man’s land’, it never pressed its claim, no doubt influenced by the strong protest made by Great Britain on behalf of Canada. As for the dispute over the Sverdrup Islands, the payment of a modest sum of money by the Canadian government to the Norwegian explorer Sverdrup for services rendered paved the way for Norway’s recognition of Canada’s sovereignty over the three islands.15 However, Pharand points out that the Norwegian government was careful to specify in its 1930 note recognizing Canada’s sovereignty over the Sverdrup Islands that this recognition “was in no way based on approval of what is called the sector principle.”16 For, as he reminds us in his 11

12 13 14

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Donat Pharand, “Legal Status of Arctic Regions,” Recueil des Cours 163 (1979): 49, at 65 [“Legal Status of Arctic Regions”]. See also: Donat Pharand, “Sovereignty and the Canadian North,” in The North, ed. M.S. Whittington (Toronto: University of Toronto Press, 1985), at 141 [“Sovereignty”]. Id., at 65. Id., at 65–66. Three islands lying immediately west of the Arctic archipelago. The recent dispute over tiny Hans Island, which is located in the center of the Kennedy Channel of Nares Strait, that separates Ellesmere Island from northern Greenland on the outer edge of the archipelago, has been described as inconsequential by most Canadian commentators. See: Rob Huebert, “The Return of the Vikings: The Canadian-Danish Dispute Over Hans Island – New Challenges for the Control of the Canadian North,” in Breaking Ice: Renewable Resources and Ocean Management in the Canadian North, eds. F. Berkes, R. Huebert, H. Fast, M. Manseau and A. Diduck (Calgary: University of Calgary Press, 2005), 319–336. See Pharand’s article in the Financial Post in which he dismisses arguments that Canada’s inability to find a map made by the Norwegian explorer Otto Sverdrup could affect Canada’s territorial sovereignty over the Arctic islands. “Arctic Title,” Financial Post, 23 March 2007, at A13. “Legal Status of Arctic Regions,” supra note 11, at 66.

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1988 book, Canada’s Arctic Waters in International Law, the sector theory “which uses meridians as a convenient method of delimitating a territorial claim” has “not developed as a principle of customary law, neither general nor regional, and cannot serve as a root of title for the acquisition of sovereignty.”17 This conclusion remains true today. Pharand’s thorough analysis of the sector theory will be addressed below. Ice Shelves and Ice Islands In his now classic book of 1973, The Law of the Sea of the Arctic with Special Reference to Canada, Pharand devotes an entire section to the issue of the legal status of ice shelves and ice islands in the Arctic.18 The section summarizes and expands upon his earlier article of a similar name, “The Legal Status of Ice Shelves and Ice Islands in the Arctic”19 as well as his 1971 article “State Jurisdiction over Ice Island T-3: The Escamilla Case.”20 Pharand’s analysis rests on a succinct but thorough consideration of the physical characteristics of ice shelves and islands21 and of the type of use and occupancy to which they have been subjected.22 This concern to provide the reader with an understanding of the larger non-legal dimensions of a particular problem is a hallmark of Pharand’s scholarship. It is one of the reasons that explain why so many of his texts have become des sources incontournables on the law of the Arctic. Pharand’s research on the status of ice shelves and islands in international law underlines the immaturity and ambiguity of legal studies on this issue. He begins his analysis in his 1969 article and 1973 book by noting that “[t]he legal status of ice shelves in international law has never been determined” but, he indicates, “there appears to be a consensus among interested states that they ought to be considered as land.”23 According to Pharand, this conclusion—assimilating 17 18 19 20 21

22 23

Canada’s Arctic Waters, supra note 8, at 11 and 79. “The Legal Status of Ice Shelves and Ice Islands in the Arctic,” in Law of the Sea, supra note 6, Part V, at 181–204. Donat Pharand “The Legal Status of Ice Shelves and Ice Islands in the Arctic,” Cahiers de Droit 10 (1969): 461 [“Legal Status of Ice Shelves”]. Donat Pharand “State Jurisdiction over Ice Island T-3: The Escamilla Case,” Arctic (1971): 83 [“Escamilla Case”]. For a description of ice shelves, see: “Legal Status of Ice Shelves,” supra note 19, at 462– 466 and Law of the Sea, supra note 6, at 182–187. For a description of ice islands, see: “Legal Status of Ice Shelves,” supra note 19, at 467; “Escamilla Case,” supra note 20, at 85–86; and Law of the Sea, supra note 6, at 188–189. “Legal Status of Ice Shelves,” supra note 19, at 468–473 and Law of the Sea, supra note 6, at 189–194. “Legal Status of Ice Shelves,” supra note 19, at 461 and Law of the Sea, supra note 6, at 181.

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ice shelves to land—is consistent with the intent of article VI of the 1959 Antarctic Treaty24 and is an accurate reflection of the physical characteristics of ice shelves. “These huge ice-tongues are partly afloat, but their thickness and quasi-permanency render them much more like land than water.”25 Pharand also addresses the issue of whether ice shelves, which project out to sea, can affect the determination of territorial waters, and he believes that the situation in the Arctic in this respect is quite different to that in the Antarctic. Only four major ice shelves are known to have existed in the Arctic in recent times, all of them located along the coastline of Ellesmere Island. “Ayles and M’Clintock ice shelves, which extended two or three miles beyond their respective fiords, have completely disintegrated since 1967 and no longer pose any legal problem.”26 As for the two remaining ice shelves, [t]he Milne Ice Shelf extends an average of about two miles beyond the entrance of the fiord, the closing line of which is about 10 miles; this means that, if the ice shelf is assimilated to land, the edge of it ought to serve as the baseline for the measurement of Canada’s territorial waters. The Ward Hunt Ice Shelf still extends an average of about four miles beyond the entrance of Disraeli fiord; however, because of the presence of Ward Hunt Island at the outer edge of the shelf at the entrance of the fiord, the baseline for measuring territorial waters coincides roughly with the edge of the ice shelf.27 On the basis of this analysis, Pharand concludes in 1973 that ice shelves in the Arctic should have limited impact on the determination of Canada’s territorial waters, particularly in light of the considerable deterioration of the Ward Hunt Ice Shelf in the early 1970s. Furthermore, as there was at the time “no active inland ice sheet or glacier on Ellesmere Island pushing ice shelves forward,”28 as was the case in Antarctica, Pharand argues that there is “little chance of the remaining ice shelves eventually regaining their former seaward position and affecting the location of baselines.”29 In the context of a rapidly warming Arctic, however, this conclusion will likely have to be reassessed. 24 25 26 27 28 29

Antarctic Treaty, 1 December 1959, 402 U.N.T.S. 71. See his arguments in “Legal Status of Ice Shelves,” supra note 19, at 462 and in Law of the Sea, supra note 6, at 181. “Legal Status of Ice Shelves,” supra note 19, at 462 and Law of the Sea, supra note 6, at 181. Law of the Sea, supra note 6, at 187. Id. “Legal Status of Ice Shelves,” supra note 19, at 467. Id.

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As for ice islands, Pharand’s principal arguments are not only to be found in the three texts cited earlier but also in his 1979 Hague Academy lectures. The question of the legal status of ice islands is described by Pharand as being of comparatively recent origin in 1979, and he asserts that “no customary international law has yet developed through the practice of States.”30 Nor, as he points out, are there any specific provisions relating to ice islands in the 1958 Conventions on the territorial sea and continental shelf31 or in the Informal Composite Negotiating Text32 that was the negotiating text of the eventual 1982 U.N. Convention on the Law of the Sea (LOS Convention).33 This “complete legal vacuum” is quite troubling, according to Pharand, “[c]onsidering the extensive use being made of ice islands for marine scientific research, as well as a limited use for the exploration of the continental shelf.”34 In the absence of a clearly applicable legal regime, Pharand proceeds by analogy, assessing whether an ice island can be considered to be like a natural island, an artificial island, or a ship. He dismisses the analogy with a natural island on the basis of international legal definitions, asserting that ice islands “no longer meet an essential element of an island, namely that it be naturally positioned in a permanent place in order to justify a territorial sea of its own.”35 Ice islands, insists Pharand, simply do not have “the qualities of permanency and stability which are basic characteristics of any piece of territory.”36 However, Pharand concedes that since an ice island can be used in exactly the same way as an artificial island, to access the resources of the continental shelf and exclusive economic zone (EEZ), “there would seem to be no reason why its legal regime ought not to be the one applicable to artificial islands properly socalled.”37 “In other words, the legal regime applicable to the ice island would depend on the use being made of the ice island. If it is used in a fixed position as a drilling platform or installation, it ought to be legally treated as such.”38 30 31 32 33 34 35 36 37 38

“Legal Status of Arctic Regions,” supra note 11, at 93. Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 U.N.T.S. 205 and Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 312. Informal Composite Negotiating Text U.N. Doc. A/CONF.62/WP.10, 15 July 1977, Third United Nations Conference on the Law of the Sea, Official Records, Vol. VIII (New York), at 1. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397. “Legal Status of Arctic Regions,” supra note 11, at 93. Id., at 94. Law of the Sea, supra note 6, at 196. “Legal Status of Arctic Regions,” supra note 11, at 95. Id. This conclusion assimilating ice islands to artificial islands in certain circumstances is a refinement of Pharand’s earlier analysis. In both his 1969 article (“Legal Status of Ice Shelves,” supra note 19) and 1973 book (Law of the Sea, supra note 6) Pharand only considered two possible options: ice islands as land, which he rejects, and ice islands as ships.

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In those circumstances where ice islands are not immobilized, Pharand argues that they should be governed by the international rules applicable to ships. The ideal, of course, would be to adopt a special convention governing the use of ice islands and providing for the jurisdiction of States over them. However, until such time as this is done, it would seem that the most practical and realistic way to deal with the problem is to consider them as ships and apply their legal regime to the extent that it is applicable.39 In making this recommendation, Pharand acknowledges that ice islands do not perfectly fit into the various definitions of ships under international law. However, in his view, the “only course to follow is to adapt the old definition to the new reality, rather than the reverse.”40 Since ice islands are natural scientific platforms that can be used in much the same way as research ships, they constitute, according to Pharand, “a new mode of navigation.”41 Pharand revisited the status of ice shelves and ice islands in the early 1980s, noting that little had changed in the legal interpretation of ice shelves and ice islands.42 Of course, Canada’s decision to draw straight baselines around the perimeter of the Canadian Arctic archipelago in 1985,43 to clarify the precise extent of the waters over which it claims sovereignty, effectively answered the question of Canada’s legal jurisdiction over the ice shelves and islands contained within the archipelago. However, Pharand’s conclusions remain important today. If current climate models are accurate, ice scientists predict that in the short to medium term, more icebergs and ice islands will be formed in the Arctic as a result of a drastic deterioration of the existing multiyear ice. And there is still no specific treaty governing the question of State jurisdiction over ice shelves that have fragmented themselves into ice islands and floated away onto the high seas, beyond the sovereign reach of the State of origin. Continental Shelf and Seabed As with his investigation into ice shelves and ice islands, the subject of the continental shelf and seabed appears both in The Law of the Sea of the Arctic 39 40 41 42 43

Id., at 100. Id. “Escamilla Case,” supra note 20, at 87. See, for example, Donat Pharand, “Canada’s Arctic Jurisdiction in International Law,” Dalhousie Law Journal 7 (1983): 315, at 326–328 [“Canada’s Arctic Jurisdiction”]. Territorial Sea Geographical Coordinates (Area 7) Order, 10 September 1985, Canada Gazette Part II, vol. 119, 3996–4002.

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with Special Reference to Canada44 and several articles published in the 1970s and 1980s.45 Pharand also co-edited a volume of papers presented at two bilateral seminars attended by Canadian and Italian experts on the law of the sea, which were held in Rome and Ottawa in 1990. Published in 1993, Pharand contributed five papers to the volume, in addition to a brief introductory note.46 In a text on Canada’s Arctic jurisdiction in international law, published in 1983 by the Dalhousie Law Journal, Pharand succinctly defines the critical legal issue regarding the continental shelf in the Arctic—delimitation: Since there is no question as to Canada’s full jurisdiction or sovereignty over the Arctic Islands, there is no question either as to Canada’s exclusive jurisdiction over the continental shelf of the archipelago. Indeed, in international law it is sovereignty over the land area that automatically confers exclusive jurisdiction over the natural resources of the continental shelf, the latter being a continuation of the land territory of the coastal state into and under the sea… The international law relating to the delimitation of the shelf was somewhat uncertain for a number of years, but, with a few international decisions and the signing of the Law of the Sea  Convention by some 119 states in December 1982, it is gradually becoming more settled.47 44 45

46 47

Law of the Sea, supra note 6, at 253–324. Donat Pharand, “The Continental Shelf Redefinition, with Special Reference to the Arctic,” McGill Law Journal 18 (1972): 536; “Legal Status of Arctic Regions,” supra note 11; Donat Pharand, “Le droit de la mer: où en sommes-nous?” Annuaire de droit maritime et aérien 5 (1980): 132; Donat Pharand, “Canada’s Jurisdiction in the Arctic,” in A Century of Canada’s Arctic Islands, ed. M. Zaslow (Ottawa: Royal Society of Canada, 1981), at 111– 130 [“Canada’s Jurisdiction”]; “Canada’s Arctic Jurisdiction,” supra note 42; Donat Pharand, “The Legal Régime of the Arctic: Some Outstanding Issues,” International Journal 39 (1984): 742 [“Legal Régime”]; “Sovereignty,” supra note 11, at 141; Donat Pharand, “Delimitation of Maritime Boundaries: Continental Shelf and Exclusive Economic Zone, in Light of the Gulf of Maine Case,” Revue générale de droit 16 (1985): 363 [“Delimitation of Maritime Boundaries”]; Donat Pharand, “La souveraineté du Canada dans l’Arctique,” Revue québécoise de droit international 3 (1986): 289; Donat Pharand, “Les problèmes de droit international dans l’Arctique,” Revue Études Internationales 20, no. 1 (1989): 131 [“Problèmes dans l’Arctique”]; Donat Pharand, “Delimitation Problems of Canada (Second Part),” in The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal Regime, eds. D. Pharand and U. Leanza (The Hague: Kluwer Academic Publishers, 1993), at 171–179 [The Continental Shelf and Exclusive Economic Zone]. The Continental Shelf and Exclusive Economic Zone, supra note 45. “Canada’s Arctic Jurisdiction,” supra note 42, at 316.

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The problem of delimitation, explains Pharand, “involves the seaward limit of the continental shelf, and its lateral limits.”48 In his earlier articles, Pharand chronicles the debate surrounding the search for a legal definition of the continental shelf and notes that a consensus was only reached during the eighth session of the Third U.N. Conference on the Law of the Sea (UNCLOS III) in April 1979.49 The 1982 LOS Convention reflects this consensus and also provides in article 76 two formulas for determining the maximum seaward limit of the continental shelf, “one based on the thickness of the sedimentary rocks (with a distance limit) and the second on the configuration of the sea bottom.”50 Under the first, or geological, method, the seaward limit must not extend beyond 350 miles from shore (or, where applicable, from the baselines from which the breadth of the territorial sea is measured), regardless of the actual length of the geological shelf, and, under the second, or physiographic, method, the seaward limit must not extend more than 100 miles beyond the 2,500-metre isobath. The 350-mile limit, however, does not apply to submarine elevations that are the natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.51 Pharand explains that on the basis of the two-pronged definition (legal and scientific) set out in article 76(1), Canada should have no difficulty in obtaining most, if not all, of its continental shelf in the Arctic basin52—“Indeed, the full continental margin (that is, the continental shelf, slope, and rise) rarely exceeds 200 miles.”53 However, in his 1989 article, published in the Revue Études internationales, Pharand suggests that some Arctic States may be in a position to claim large swaths of the Arctic Ocean as extended continental shelf because of the presence of two important submarine elevations, the Lomonosov Ridge and the Alpha Ridge. According to Pharand, it is possible that these two ridges, which cross the Arctic basin, may turn out to be continental in nature and thus a continuation of the landmass.54 If this proves to be 48 49 50

51 52 53 54

Id. “Canada’s Jurisdiction,” supra note 45, at 113. “Canada’s Arctic Jurisdiction,” supra note 42, at 317. See: LOS Convention, supra note 33, article 76. Pharand refers to article 76 of the LOS Convention in support of his conclusion in the last sentence of the paragraph. Id. “Problèmes dans l’Arctique,” supra note 45, at 136. “Canada’s Arctic Jurisdiction,” supra note 42, at 317. “Problèmes dans l’Arctique,” supra note 45, at 136.

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the case, Canada would share the Alpha Ridge with Russia and the Lomonosov Ridge with both Denmark and Russia.55 Canada, which became a party to the LOS Convention on 7 December 2003, had under Article 4 of Annex II, ten years for the submission of information respecting the outer limits of its continental shelf beyond 200 nautical miles to the U.N. Commission on the Limits of the Continental Shelf.56 This timeline was subsequently altered when the State parties to the Con­ vention, meeting in June of 2008, decided that the time period could be satisfied by submitting “preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles and a description of the status of preparation and intended date of making a submission…”57 Canada has availed itself of this option, choosing to submit on 6 December 2013 information defining the outer limits of its continental shelf in the Atlantic Ocean, but only filing preliminary information with respect to its extended continental shelf in the Arctic.58 On 20 December 2001, Russia, which became a party to the LOS Con­­ven­ tion  on 12 March 1997, made a submission to the U.N. Continental Shelf Commission.59 In its submission, Russia proposed outer limits of its continental shelf that extended into the central Arctic basin well beyond 200 nautical miles from its territorial sea baselines. The seabed thus claimed by Russia covered a large portion of the Arctic Ocean, including the North Pole. In 2002, the Commission neither rejected nor accepted the Russian claim but concluded that it rested on insufficient evidence and recommended that Russia carry out further research in support of its submission.60 Although Russia has remained 55 56

57

58

59 60

Id. The Commission on the Limits of the Continental was established by Annex II of the LOS Convention, supra note 33. See the Commission website at http://www.un.org/Depts/los/ clcs_new/clcs_home. “Decision regarding the workload of the Commission on the Limits of the Continental Shelf and the ability of States, particularly developing States, to fulfill the requirements of article 4, annex II,” Eleventh Meeting of the State Parties, U.N. Doc. SPLOS/183, 20 June 2008 available on the Division of Ocean Affairs and the Law of the Sea (DOALOS) website at http://www.un.org/depts/los/index.htm. Canada, “Executive Summary – Partial Submission,” 6 December 2013 and “Preliminary Information Concerning the Outer Limits of the Continental Shelf of Canada in the Arctic Ocean,” 6 December 2013, both on the Commission website, supra note 56. Russian Federation, “Executive Summary,” 20 December 2001, on the Commission website, supra note 56. See: “Oceans and the Law of the Sea: Report of the Secretary-General,” U.N. Doc. A/57/57/ Add. 1, 8 October 2002, at paragraph 4, available on the DOALOS website, supra note 57.

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deeply engaged in Arctic scientific research and has led a number of widely publicized scientific expeditions since 2002, it has not yet resubmitted a scientific dossier to the Commission. With important natural resources at stake, and competing interests in the region, Denmark and the United States have also been actively engaged in collecting scientific data to support the establishment of the outer limits of their extended continental shelf in the Arctic Ocean. However, in the increasingly likely event that the Danish, American, Russian and Canadian submissions overlap, the Commission may be unable to consider the data and material submitted by the Arctic States. While paragraph 10 of article 76 simply states that the process in the LOS Convention is “without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts,”61 the Commission has adopted a restrictive interpretation of its role in such circumstances. Article 5(a) of Annex I of the Rules of Procedure of the Commission states unequivocally that “[i]n cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute.”62 The fact that, as a nonparty, the United States is not bound by the process defined in the Convention is another complicating factor in determining the outer limits of the continental shelves of the five Arctic coastal States. Pharand was already preoccupied in the 1980s by the question of the lateral delimitation of the continental shelf between the Arctic States. Writing in 1985, Pharand insists that Canada “should give high priority to the determination of the lateral limits of its continental shelf in the Beaufort Sea, either by agreement with the US or by third party settlement, judicial or arbitral.”63 Unfortunately, as he concedes, “[t]he law pertaining to continental shelf delimitation between neighbouring states has had a rather difficult history, and the end result, contained in the 1982 Convention, is not very satisfactory from the point of view of clarity.”64 Pharand’s earlier articles trace the principal historical developments of the international law of delimitation, an exercise he deems necessary if one is “to understand the applicable provisions now found in the 1982 Convention.”65 The outcome of a difficult compromise, Article 83 of the LOS 61 62

LOS Convention, supra note 33, article 76(10). Rules of Procedure of the Commission on the Limits of the Continental Shelf, U.N. Doc. CICS/40/Rev. 1, 17 April 2008, on the Commission website, supra note 56. 63 “Sovereignty,” supra note 11, at 162. 64 “Canada’s Arctic Jurisdiction,” supra note 42, at 318–319. 65 “Delimitation of Maritime Boundaries,” supra note 45, at 365.

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Convention provides: “The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” The provision limits itself to “formulating the goal to be attained, namely an ‘equitable solution’, without specifying any principle or rule to attain such a goal.”66 As Pharand points out, since each State has its own idea of what is equitable, the law will remain imprecise “until we have the benefit of a significant body of jurisprudence from international tribunals.”67 Pharand’s analysis focuses particularly on the 1984 Gulf of Maine Case (Canada and the United States),68 which he describes as the most useful of the handful of international decisions on delimitation existing at that time. He highlights the key findings of the International Court of Justice: Dans sa décision, la Cour internationale nous dit que “la délimitation doit être réalisée par l’application de critères équitables et par l’utilisation de méthodes pratiques aptes à assurer, compte tenu de la configuration géographique de la région et des autres circonstances pertinentes en l’espèce, un résultat equitable”… Elle souligne que le critère fondamental de délimitation doit relever surtout de la géographie, principalement de la géographie des côtes. Ce critère, dit-elle, “consiste à viser en principe— en tenant compte des circonstances spéciales de l’espèce—à une division par parts égales des zones de convergence et de chevauchement des projections marines des côtes des États entre lesquels la délimitation est recherchée.”69 In light of these pronouncements by the Court as well as other decisions, Pharand lists a number of factors that must be considered in order to achieve an equitable delimitation: the general configuration of the coasts; the respective lengths of the coasts; the presence of a geographic feature (for instance, an island or a group of small islands off one of the coasts); and the geological structure, where it is sufficiently well-known.70 Pharand then lists the principal methods of delimitation applied in international decisions and in State practice up to 1989: 66 67 68 69 70

Id., at 383. Id. Gulf of Maine Case (Canada and the United States) [1984] I.C.J. Rep. 246. “Problèmes dans l’Arctique,” supra note 45, at 136–137. Id., at 137.

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[U]ne ligne d’équidistance (soit stricte soit modifiée pour tenir compte d’accidents géographiques), une perpendiculaire à la ligne générale de la côte, une bisectrice entre les lignes générales des côtes qui se rejoignent, le prolongement d’une délimitation existante des eaux territoriales et le prolongement de la frontière terrestre.71 On the basis of this useful summary, Pharand then considers the five lateral delimitation cases in the Arctic: (1) Russia (Franz Josef Land) and Norway (Svalbard); (2) Norway (Svalbard) and Denmark (Greenland); (3) Denmark (Greenland) and Canada (Ellesmere); (4) Canada (Yukon) and the United States (Alaska); (5) United States (Alaska) and Russia (East Siberia). With respect to the sensitive issue of delimitation in the Beaufort Sea between Canada and the United States, Pharand argues that an equitable delimitation will have to take into account the particular configuration of the relevant coasts, specifically the convexity of the coast of Alaska and the concavity of the coast of Yukon, which is being slowly accentuated by a receding shoreline. He also believes that considerable weight will also have to be given to the length of the baselines around Canada’s Arctic archipelago. For, as a result of the baselines, the entire archipelago is now assimilated to territory, giving Canada an immense coastline on the Beaufort and Arctic Ocean. Pharand’s scholarship on the issue of the continental shelf, though now over fifteen years old, is a valuable source of analysis in an area of the law that is still characterized by uncertainty. Pharand’s articles are all supported by helpful maps, which is another of his trademarks, and most of them conclude with a clear, succinct and lucid summary of the principal issues involved, as well as the legal provisions and international decisions applicable. While the International Court in its Black Sea decision72 has now established the drawing of a provisional equidistance line as the default starting point for the delimitation of the continental shelf between States with adjacent coasts, the Court did leave open the possibility that “compelling reasons” might make this “unfeasible in the particular case.”73 In the Caribbean Sea case between Nicaragua and Honduras,74 the Court was confronted with a particular set of circumstances which justified relying on the bisector method, one of the alternative methods identified by Pharand in his 1989 article.75 State practice and 71 72 73 74 75

Id. Maritime Delimitation in the Black Sea (Romania v. Ukraine) [2009] I.C.J. Rep. 61. Id., at 101, paragraph 116. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) [2007] I.C.J. Rep. 659. “Problèmes dans l’Arctique,” supra note 45, at 137.

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future international decisions will determine whether any of the other methods identified by Pharand, particularly the extension of existing territorial sea or land boundaries, a key issue in the Beaufort Sea dispute, still have a role to play in continental shelf delimitation. Certainly Pharand’s 1989 list of factors which he felt needed to be considered if an equitable result was to be achieved anticipated the International Court’s increased emphasis throughout the 1990s and 2000s on geographical considerations and their consecration in the 2009 Black Sea decision. The Sector Theory Though Pharand’s graduate theses and many of his articles deal with the sector theory, Pharand himself admits that his most thorough treatment of this concept is to be found in his book, Canada’s Arctic Waters in International Law, which was published in 1988 by Cambridge University Press as part of its Studies in Polar Research series.76 Divided into four parts, the whole of the first part, some 87 pages, is devoted to the topic of “The Waters of the Canadian Arctic Archipelago and the Sector Theory.” As Pharand writes, the purpose of this first part “is to assess the validity of the sector theory in international law as a basis for claiming jurisdiction to Arctic waters.”77 Linked principally with the Antarctic, the sector theory has played a role, though a limited one, in the legal debate surrounding the status of the waters within the Canadian Arctic archipelago. As Pharand states: [t]he sector theory has been invoked by a number of politicians and officials in Canada as a legal basis for claiming jurisdiction not only over the islands of the Canadian Arctic Archipelago, but also over the waters within and north of the islands right up to the Pole. However, the government itself has never taken a very clear and consistent position on this theory. It would seem that present government policy is to hold the theory in reserve as possible support for its claim that the waters of the Archipelago are internal.78 To test the validity in international law of the sector theory as a root of title over the Arctic waters, Pharand first considers its historical origins and then proceeds to analyse the three possible legal bases for the theory: boundary treaties, contiguity and customary law. Each of these four chapters concludes

76 77 78

Canada’s Arctic Waters in International Law, supra note 8. Id., at 1. Id.

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with a useful summary of Pharand’s principal findings and conclusions. This summing up of his key arguments is a regular feature of Pharand’s texts and one that has endeared him to harried researchers everywhere. In the first chapter on the historical context of the sector theory, Pharand establishes that the “use of meridians as a convenient method of delimiting a territorial claim goes back to the fifteenth century at least,”79 but he confirms that Canada appears to have been the first country to have resorted to the method to support a claim to lands and islands in the Arctic. It first used the 141st meridian of longitude in its address of 1878 to Britain and then used both the 141st and the 60th meridians of longitude in 1897 to describe the boundaries of Franklin District. The description itself does not mention the 60th meridian, although the latter is used as a boundary on the map to which the Order in Council refers.80 However, since the sector lines on the map in question did not extend right to the North Pole,81 Pharand explains that the full Canadian sector was actually depicted for the first time in 1904 on a map published by the Department of the Interior entitled “Explorations in Northern Canada.”82 Still, Pharand notes that paternity of the sector theory in the Arctic is usually attributed to Senator Pascal Poirier who, in 1907, was the first “to actually systematize the use of meridians of longitude to claim territorial sovereignty in the Arctic.”83 79 80

81 82 83

Id., at 11. See Pharand’s discussion at 4 of the Papal Bull Inter Caetera (1493) and the treaties of Tordesillas (1494) and Saragossa (1529) between Spain and Portugal. Id. The 1878 joint address by the House of Commons and Senate of Canada to the British Parliament requested a formal transfer of all Arctic lands and islands lying between the 141st meridian of longitude and the series of straits between Ellesmere Island and Greenland. The reason for the address, reports Pharand, at 4, “was the uncertainty of the extent of the land and territories transferred to Canada by Great Britain in 1870.” He adds at 11 that the British transfer of 1880 “does not mention the sector lines and confines itself to territories, possessions and islands.” Id., at 5 and 11. This map, as well as the 1897 map showing the provisional northern districts of Canada, including Franklin District, are reproduced at id., at 6 and 7. Id., at 1. On 20 February 1907, Senator Poirier proposed his now famous resolution: “That it be resolved that the Senate is of opinion that the time has come for Canada to make a formal declaration of possession of the lands and islands situation in the north of the Dominion, and extending to the North Pole.” In his speech in support of his motion, Senator Poirier declared that Canada owned all of the land within a pie-shaped sector extending from its continental coastlines up to the geographic North Pole. It was a

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Having established the sector theory’s historical antecedents, Pharand then proceeds to analyse its legal foundations. In the second chapter, he examines whether boundary treaties can be a legal basis for the sector theory, a proposition that has been the subject of controversy.84 Two treaties, in particular, are at the heart of the legal debate: the 1825 Treaty between Great Britain and Russia85 and the 1867 Treaty between the United States and Russia.86 After a detailed analysis of the various provisions of the two treaties according to ­generally accepted rules of treaty interpretation, Pharand concludes that: the 1825 and 1867 boundary treaties cannot serve as a legal basis for the sector theory, at least not in the sense of being capable of giving title to sea areas. The meridians were used as convenient geographical devices with which Russia and Great Britain delimited their possessions along the coast and the islands in 1825, and within which the dominion or sovereignty over the territory was ceded by Russia to the United States in 1867. In both instances, the subject matter was land only, and not land and sea, except for inland waters and the territorial sea.87 Pharand next considers the doctrine of contiguity, which is generally held to form the basis of the sector theory.88 Pharand’s appraisal of the doctrine rests upon a thorough investigation of relevant State practice, international decisions, and leading doctrinal opinion. This in-depth inquiry leads Pharand to “the definite conclusion that, as a general rule, contiguity and its related geographical doctrines are not sufficient in themselves to serve as a legal basis for

84

85

86

87 88

reference to Poirier’s resolution by one of his law school professors that first awakened Pharand’s interest in the Arctic. Id., at 12–17, Pharand considers the arguments of the main proponents of the boundary treaty theory, the American scholar David Hunter Miller and the Soviet writer W.L. Lakhtine. Convention between Great Britain and Russia Concerning the Limits of their Respective Possessions on the North-West Coast of America and the Navigation of the Pacific Ocean, 16 February 1825, reprinted in C. Parry, ed., Consolidated Treaty Series, Vol. 75 (Dobbs Ferry: Oceana Publications, 1969), at 95–101. Convention ceding Alaska between Russia and the United States, 30 March 1867, reprinted in C. Parry, ed., Consolidated Treaty Series, Vol. 134 (Dobbs Ferry: Oceana Publications, 1969), at 331–335. Canada’s Arctic Waters in International Law, supra note 8, at 26 [emphasis in the original]. As Pharand states, id., at 28: “[e]ven those who invoke the boundary treaties of 1825 and 1867 look to that concept to reinforce their case.”

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the acquisition of territorial sovereignty.”89 And if contiguity, by itself, is incapable of generating sovereignty over land areas, a fortiori, writes Pharand, it “cannot lead to the acquisition of sovereignty over sea areas.”90 For only territorial sovereignty can generate rights over adjacent waters. “The inescapable conclusion, since contiguity does not constitute an autonomous source of sovereignty over land areas (subject to the qualifications indicated) or over maritime areas beyond the territorial sea, must be that contiguity is incapable of serving as a legal basis for the sector theory.”91 In the final chapter devoted to the sector theory, Pharand examines whether the practice of States may have sufficient importance to transform the theory into a principle of customary international law. After a brief explanation of the requirements of custom, Pharand proceeds to review State practice in both the Arctic and the Antarctic. In the case of the Arctic, Pharand examines the practice of five Arctic States: Canada, the Soviet Union, Norway, Denmark, and the United States. His discussion of Canada’s practice is particularly thorough and detailed, divided as it is into sixteen historical periods and supplemented by a number of useful maps.92 As for Antarctica, Pharand reviews the positions of the original twelve parties to the 1959 Antarctic Treaty: the United Kingdom, New Zealand, Australia, France, Norway, Chile, Argentina, Belgium, Japan, South Africa, the Soviet Union, and the United States. Pharand highlights the fact that in the Arctic, only Canada and the Soviet Union have relied upon the sector theory and that it has not always been clear whether “their intention was to rely on the theory as a legal basis for their claim or simply as a means of describing its geographic extent.”93 Nor has it always been evident, particularly in the case of Canada, whether the claim “related to land, sea, continental shelf or to a combination of the three.”94 Furthermore, [t]he other three Arctic States have never relied on the sector theory for any purpose, and the United States and Norway have consistently opposed its use. Norway has even refused to use a full sector to describe its claim in the Antarctic, for fear that its use might be misunderstood. 89 90 91 92 93 94

Id., at 42. Id., at 43. Id. [emphasis in the original]. Id., at 46–63. Id., at 79. Id.

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In addition, both the United States and the Soviet Union have objected to all sector claims in the Antarctic and have made no claims themselves.95 As established by Pharand, State practice has neither been sufficiently uniform nor has it received the necessary degree of acceptance to confer upon the sector theory the status of a principle of customary law, either general or regional. Thus, concludes Pharand, it “cannot serve as a root of title for the acquisition of sovereignty, particularly not to areas of the sea.”96 Pharand’s analysis of the sector theory is without doubt the most comprehensive treatment of the subject as it applies to the Arctic waters. His conclusions, which rest on a wealth of information and a careful consideration of legal precedents and pronouncements are highly persuasive. Historic Waters In December 1973, the Legal Bureau of the Department of External Affairs defined Canada’s claim over the Arctic waters in the following terms: “Canada… claims that the waters of the Canadian Arctic Archipelago are internal waters of Canada, on an historical basis, although they have not been declared as such in any treaty or by any legislation.”97 This claim to historic title, which has been a dominant feature of the debate surrounding the Arctic waters, has also been at the heart of Pharand’s writing. As early as 1971, the concept of historic waters was the subject of an article published by Pharand in the University of Toronto Law Journal98 and it is also examined in a number of his other subsequent articles published in the late 1970s and 1980s.99 His most comprehensive analysis of the doctrine, however, is to be found in his 1988 book100 and in his most recent article, “The Arctic Waters and the Northwest Passage: A Final Revisit,” which was published in March 2007.101 Pharand generally uses a two-step approach when he discusses the doctrine of historic waters. As a first step, he methodologically identifies and explains 95 96 97 98 99

Id. Id. “Letter,” 17 December 1973, in Canadian Yearbook of International Law 12 (1974): 279. “Historic Waters,” supra note 10. See, for example: “The Northwest Passage in International Law,” Canadian Yearbook of International Law 17 (1979): 99, at 126 [“Northwest Passage”]; “Canada’s Jurisdiction,” supra note 45; “Canada’s Arctic Jurisdiction,” supra note 42; and “Legal Régime,” supra note 45, among others. 100 Canada’s Arctic Waters, supra note 8. 101 “Arctic Waters,” supra note 5.

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the generally agreed upon requirements that must be met before a claim to historic waters is established. Pharand then carefully applies the legal criteria identified to Canada’s particular claim over the Arctic waters. The second part of his 1988 work Canada’s Arctic Waters in International Law begins by considering the origin and recognition of historic waters, their legal status (internal or territorial waters), their role in the current law of the sea regime, and their relationship to other concepts, such as custom, acquisitive prescription, effective occupation, and historical consolidation of title. However, it is the following chapter, which examines the legal requirements for the existence of historic waters, that is of greatest significance in Pharand’s analysis. Pharand summarizes the basic requirements of an historic title to sea areas as follows: “(1) exclusive authority and control over the maritime area claimed, including the expulsion of foreign ships if necessary; (2) long usage or the passage of a long period of time, the length of the period depending on the circumstances; and (3) acquiescence by foreign States, particularly those clearly affected by the claim.”102 Pharand emphasizes that a number of factors will influence the determination of the first two requirements. “Naturally, the extent of control will vary depending on a number of factors such as the size of the maritime area, its remoteness and the degree of its usability.”103 As for the second criterion, Pharand states that “[t]he length of time required will depend on a number of factors such as the degree of change being effected, the attitude of other States and the political strength of the ­claimant State.”104 With respect to the third requirement, Pharand refers to a disagreement between experts as to what precise form the reaction of foreign States should take. He also specifically addresses the closely related issue of the legal effect of protests on the part of an interested State. Pharand argues that “[i]f such a State is really concerned about the possibility of an historic right materializing, it ought to take all permissible means at its disposal to prevent the practice or exercise of authority in question from developing into an historic title.”105 Thus, an effective protest on the part of an interested State will “negate acquiescence and prevent an historic title from materializing.”106 Pharand explains that in addition to relying on displays of State control over a long period of time and the acquiescence or lack of protest of foreign States, 102 103 104 105 106

Canada’s Arctic Waters, supra note 8, at 105. Id., at 97. Id., at 98. Id., at 101. Id., at 105.

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“coastal States will usually buttress their claim of historic waters by invoking vital interests.”107 In support of this contention, Pharand notes that the vital interest factor was given consideration and weight by the International Court in the 1951 Norwegian Fisheries Case,108 particularly with respect to the geographic and economic aspects and that the “importance of the peculiar geography of Norway permeates the whole judgment of the Court.”109 According to Pharand, though vital interests have not acquired the status of one of the constitutive elements forming the basis of an historic waters claim, it is a factor “which may be taken into account in the general appraisal of those elements.”110 They can “support and strengthen conclusions already indicated by geographical, political and legal considerations.”111 Finally, Pharand considers the question of whether there exists a special burden of proof in a claim of historic waters. Relying on an analysis of the International Court’s judgment in the Norwegian Fisheries Case, Pharand concludes that “[w]hen an historic title is the sole basis for a claim of maritime sovereignty, it is a claim in derogation of the general rules for the acquisition of such sovereignty and a special burden of proof rests on the claimant State.”112 In his 2007 article on the Northwest Passage, Pharand compares this “onerous burden of proof for a title to historic waters” to that of the “acquisition of title by prescription over land territory.”113 Having clearly and succinctly explained the international legal requirements that govern the issue of historic waters, Pharand proceeds to appraise Canada’s claim. A significant finding, and one based on three months of research at Cambridge’s Scott Polar Institute, is that the taking of possession by the first British explorers in what is now the Canadian Arctic archipelago was confined to land.114 Nevertheless, with the help of historic maps, Pharand shows that British explorers, beginning with Martin Frobisher in 1576 and ending with those searching for the Franklin expedition in 1859, covered virtually 107 Id., at 102. 108 Fisheries Case (United Kingdom v. Norway) [1951] I.C.J. Rep. 116. 109 Canada’s Arctic Waters, supra note 8, at 79. Pharand also relies on Dr. L.M. Drago’s dissenting opinion in the 1910 North Atlantic Coast Fisheries Case (Great Britain, United States), Vol. XI, U.N. R.I.A.A. 167 and the 1977 Arbitral Award, Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (United Kingdom, France), Vol. XVIII, U.N. R.I.A.A. 3. 110 Id., at 103 [footnote omitted]. 111 Id. [footnote omitted]. 112 Id., at 105. 113 “Arctic Waters,” supra note 5, at 9. 114 Canada’s Arctic Waters, supra note 8, at 113.

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all of the waters of the Canadian Arctic archipelago “and were frequented ­practically only by them and British whalers.”115 Pharand also documents Canadian State activities following the transfer of title in 1880. In addition to numerous government expeditions to the Arctic,116 Pharand refers to Canadian legislation in 1906 requiring all whalers to obtain a licence when hunting whales in Hudson Bay and the territorial waters north of the fiftieth parallel. He also points out that in 1922, Canada “instituted what became known as the Eastern Arctic Patrol, but which occasionally extended to the western Arctic waters.”117 He emphasizes that during the construction of the distant early warning (DEW) line stations and their sea supply beginning in 1957, “Canada exercised a certain degree of control over the U.S. ships using the Arctic waters.”118 Finally, Pharand highlights the fact that since the end of the Second World War, the Canadian Coast Guard has been providing icebreaking services to domestic and foreign vessels, has overseen the implementation of the regulations relating to pollution prevention and shipping safety control,119 and has been responsible for the operation of the NORDREG reporting system.120 Although this summary appears at first blush to justify the Canadian claim to historic waters, Pharand considers that the list of negative elements make it impossible for Canada to satisfy the legal requirements. At least four main reasons may be formulated in support of this conclusion. First, neither the British nor Canadian explorers ever took possession of any part of the Arctic waters, especially not those of the Northwest Passage. Second, the first official claim that the waters of the Canadian Archipelago were historic internal waters was made only in 1973. Third, as soon as Canada delineated its claim of historic waters, by providing for 115 Id., at 122. 116 For a discussion of various expeditions, see id., at 114–120. 117 According to Pharand, “[m]ost of those annual patrols were carried out with a Royal Canadian Mounted Police component and continued until the late 1950s.” “Arctic Waters,” supra note 5, at 9. 118 Id. 119 The pollution prevention and shipping safety regulations were adopted under the 1970 Arctic Waters Pollution Prevention Act, R.S.C. 1970 (1st Supp.), c. 2, as amended. 120 The Northern Canada Vessel Traffic Services Zone Regulations, SOR 2010-127, enacted pursuant to the Canada Shipping Act, S.C. 2001, c. 26, formally establish the Northern Canada Vessel Traffic Services (NORDREG) Zone and implement the requirements for vessels to report information prior to entering, while operating within and upon exiting Canada’s northern waters.

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straight baselines around the Archipelago, the United States and EC Member States sent notes of protest. Fourth, Canada has not succeeded in subjecting all foreign ships to prior authorization to enter the Northwest Passage, in particular U.S. ships. The United States agreed in 1988 that it would request prior authorization for its icebreakers but on the express understanding that it would not affect its refusal to recognize Canada’s claim. In addition, the 1988 agreement does not affect the right of passage of commercial vessels or government ships (warships) other than icebreakers.121 Although Pharand is undoubtedly correct when he asserts that Canada has not been successful in obtaining formal recognition of its right to control navigation in the Northwest Passage, foreign vessels did voluntarily register under Canada’s NORDREG system even before the scheme was made mandatory in July 2010. However, as Pharand points out, the third requirement—the acquiescence of interested States—does appear to be an insurmountable obstacle for Canada in light of American and European protests first to the enactment of the Arctic Waters Pollution Prevention Act in 1970 and then to the drawing of baselines around the archipelago in 1985. As a final comment “on the difficult task which Canada would face in an international adjudication of its claim of historic waters,” Pharand recalls that the International Court refused to ascribe any decisive weight to historic rights claimed by the parties in the 1985 Gulf of Maine Case.122 For all of these reasons, concludes Pharand, “Canada would not succeed in establishing that the waters of the Canadian Arctic Archipelago are historic internal waters.”123 Straight Baselines On 10 September 1985, in response to the transit of the Northwest Passage by the U.S. icebreaker Polar Sea and the political furor that it unleashed, Canada adopted legislation providing for the establishment of straight baselines along the perimeter of its Arctic archipelago.124 These baselines, which came into force on 1 January 1986, defined, according to Joe Clark, “the outer limit of Canada’s historic internal waters.”125 Two letters of protest followed quickly 121 122 123 124 125

“Arctic Waters,” supra note 5, at 13. Id. Canada’s Arctic Waters, supra note 8, at 125. Territorial Sea Geographic Coordinates, supra note 43. Statement in the House of Commons by Secretary for External Affairs Joe Clark, 10 September 1985, House of Commons, Debates, at 6462–6464.

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upon the proclamation of the Canadian baselines, the first from the United States. Pharand, at the time, was unable to obtain a copy of the actual letter and only became aware of its content in a State Department publication in 1992, quoting James W. Dyer, acting Assistant Secretary of State for Legislative and Inter-governmental Affairs to Senator Charles Mathias (R. Maryland). The letter stated in part: “On September 10, 1985, the Government of Canada claimed all the waters among the Arctic islands as internal waters, and drew straight baselines around the Arctic islands to establish its claim. The United States position is that there is no basis in international law to support the Canadian claim.”126 The second protest came from the Member States of the European Com­ munity (EC), via the British High Commission. The diplomatic note stated: “The Member States acknowledge that elements other than purely geographical ones may be relevant for purposes of drawing baselines in particular circumstances but are not satisfied that the present baselines are justified in general. Moreover, the Member States cannot recognize the validity of a historic title as justification for the baselines drawn in accordance with the order.”127 The U.S. letter does not specify whether the United States objects to the historic basis of Canada’s claim to internal waters or merely to the straight baselines. Rather, the objection appears to be “to the claim itself, regardless of its precise legal basis.”128 As for the European protest, the “objection is obviously directed at both the baselines in general and the historic title in particular.”129 As noted previously, Pharand himself believes that no historic title to the Arctic waters can be established. Accordingly, he argues that the enclosed Arctic waters gained the status of internal waters in 1986 solely as a result of the drawing of baselines. Norway developed the straight baseline system of delimiting waters in its Royal Decree of 1812. Much later, the system was approved by the International Court in the 1951 Norwegian Fisheries Case130 and subsequently incorporated into the 1958 Convention on the Territorial Sea and the Contiguous Zone131 and into the 1982 LOS Convention.132 When Canada drew its baselines in 126 Quoted in “Arctic Waters,” supra note 5, at 12. Excerpts of the letter are in J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims (Leiden: Martinus Nijhoff, 2012, 3rd ed.) at 112. 127 British High Commission Note No. 90/86 of 9 July 1986, reprinted in id., at 112. 128 “Arctic Waters,” supra note 5, at 12. 129 Id. 130 Norwegian Fisheries Case, supra note 108. 131 Territorial Sea Convention, supra note 31, article 4. 132 LOS Convention, supra note 33, article 7.

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1985, it was not a party to either of these two conventions. Consequently, it is Pharand’s position that Canada’s legislation at the time of its adoption ought to have been judged by reference to the customary law rules applied in the Norwegian Fisheries Case.133 Pharand was one of the first Canadian scholars to advocate the drawing of baselines around the Arctic archipelago to consolidate Canada’s claim. Although Pharand has contributed valuable insights on a number of important Arctic issues, his lifelong and ongoing study of the international legal regime pertaining to baselines is perhaps one of his greatest contributions. As a result of decades of research and analysis, Pharand has produced an exhaustive and persuasive assessment of the validity of Canada’s Arctic baseline system. Pharand devotes the third part of his 1988 book (roughly 50 pages), to the question of baselines, and the subject is also considered at length in his recent 2007 article.134 Pharand begins in these two texts with an in depth analysis of the international rules governing the use of straight baselines for coastal archipelagos. A threshold requirement, and one that might well have proven difficult for Canada but for Pharand’s insights, is the geographic configuration required for the application of a straight baseline system. According to the International Court in the 1951 Norwegian Fisheries Case: [w]here a coast is deeply indented and cut into, as is that of Eastern Finmark, or where it is bordered by an Archipelago such as the “skjaergaard” along the western sector of the coast here in question, the baseline becomes independent of the low-water mark, and can only be determined by means of geometrical construction.135 Pharand explains that in this key passage, the Court defined “two basic geographical situations where the geometrical construction of straight baselines may be used.”136 “The first,” declares Pharand, “is a deeply indented coast and the second is an archipelago bordering a coast.”137 For their part, both the 1958 Convention on the Territorial Sea and the Contiguous Zone and the 1982 LOS Convention provide for the use of straight baselines “in localities where the coastline is deeply indented and cut into or 133 134 135 136 137

“Arctic Waters,” supra note 5, at 13. Id., at 13–28. Norwegian Fisheries Case, supra note 108, at 128–129. “Arctic Waters,” supra note 5, at 14. Id.

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if there is a fringe of islands along the coast in the immediate vicinity.”138 Unlike many commentators, Pharand believes that there is “a difference of substance between the applicable customary law and convention law.”139 This difference, according to Pharand, pertains to the second geographical situation defined by the International Court, where the coast “is bordered by an archipelago such as the skjaergaard.” Pharand argues that this type of coast is different from a simple “fringe of islands along the coast in its immediate vicinity.” The difference is in two respects: the first relates to the degree of proximity of the islands to the coast and the second, to the configuration of the group of islands. As to the degree of proximity, the Court in the Fisheries Case confined itself to requiring that there be a coast “bordered by an archipelago.” It said nothing about the islands having to be “in the immediate vicinity.” On the contrary, the Court specified that the baselines, “within reasonable limits, may depart from the physical line of the coast.” It necessarily follows that the islands themselves may so depart and, therefore, might not be precisely in the immediate vicinity. With respect to the configuration of the group of islands, the International Court remained silent. It chose the word “archipelago” which simply means a group of islands… True, the “skjaergaard” might be described as a “fringe,” but the Court imposed no such limitation. It simply characterized the “skjaergaard” as one type of archipelago to which the straight baselines system was applicable.140 While Pharand highlights important distinctions between the Court’s language in the Norwegian Fisheries Case and the 1982 LOS Convention, these differences and the argument that Canada’s Arctic baselines should be assessed according to the Court’s criteria and customary international law lost much of their importance after 7 December 2003 when Canada became a party to the LOS Convention. Article 300 imposes on all contracting States the duty to fulfil in good faith the obligations assumed under the Convention and this obligation includes ensuring that national laws and regulations are in conformity with the rules set out in the Convention. Acknowledging the change in Canada’s position, Pharand persuasively demonstrates in his 2007 article, that the 138 Territorial Sea Convention, supra note 31, article 4 and LOS Convention, supra note 33, article 7. 139 “Arctic Waters,” supra note 5, at 15. 140 Id.

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Canadian straight baselines not only meet the requirements formulated by the International Court in 1951 but also the criteria listed in article 7 of the 1982 LOS Convention.141 Before embarking on his analysis, he gives a detailed and very useful description of the ‘basic geographic realities’ of the Canadian Arctic archipelago. According to Pharand, the Arctic archipelago presents two characteristics of fundamental importance: “the proximity of the Archipelago to the coast and the unity of the Archipelago itself.” As for the proximity of the coast, there can be no question that this element is present, since not only are most of the islands which form the base of the Archipelago located very close to the coast, but the coast itself, through its central peninsula, advances into the very core of the Archipelago. Regardless of whether one applies the term “bordered” or the expression “immediate vicinity,” this first element of the criterion is obviously met.142 As for the second characteristic, [t]he unity of the Archipelago itself is derived from the interpenetration of land formations and sea areas, and this close relationship is reinforced by the presence of ice most of the year. The geographic unity is further assured by the string of closely spaced islands across Parry Channel, linking the northern with the southern section and forming a single unit. Admittedly, Parry Channel cannot be compared with the narrow Norwegian Indreleia but, in spite of its considerable width, a global view of Parry Channel shows that it does not unduly disrupt the general unity of the Archipelago.143 These considerations lead Pharand to conclude that the Canadian Arctic archipelago presents the kind of geographic characteristics that the International Court had in mind and of which the Norwegian skjaergaard was only one manifestation for the application of straight baseline systems.144 141 142 143 144

Id., at 19. Id., at 16. Id. This conclusion is shared by other law of the sea experts, including William Burke and Bruce McKinnon. See: William Burke, “Remarks” (1987), 81st Annual American Society of International Law Proceedings 82 and Bruce McKinnon, “Arctic Baselines: A Littore Usque Ad Litus,” Canadian Bar Review 66 (1987): 790, at 805.

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However, though the threshold requirement may be met, to be considered valid under international law, straight baselines must also be constructed according to certain criteria. In the Norwegian Fisheries Case, the Court defined three requirements or factors to assess the validity of Norway’s straight baselines: (1) the general direction of the coast; (2) the close link between land and sea; and (3) certain economic interests evidenced by long usage. Pharand declares that the first two criteria are mandatory but that the third, based on the Court’s actual wording, is optional.145 All three criteria were incorporated without change into the 1958 Convention on the Territorial Sea and the Con­ tiguous Zone and the 1982 LOS Convention.146 Pharand provides an excellent and very succinct explanation of the three criteria at the end of Chapter 9 in his 1988 book. 1.

2. 3.

Straight baselines must not depart to any appreciable extent from the general direction of the coast, in that the deviation must not constitute a distortion of the general direction. To judge whether a baseline constitutes a distortion, a global view of the whole coast should be had on a small-scale map. The enclosed sea areas must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. The overall ratio of sea to land areas within the Norwegian Archipelago was 3.5 to 1. In establishing particular baselines, account may be taken of certain economic interests peculiar to the regions concerned, the reality and importance of which are clearly evidenced by long usage. Such evidence adds probative value to the validity of the baselines in question.147

As Pharand emphasizes, neither the Norwegian Fisheries Case nor the two conventions fix a maximum length for straight baselines enclosing coastal archipelagos. According to Pharand, the Court held that if a straight baseline could be justified under the two geographic criteria and possibly also under the economic criterion, it would be valid regardless of its length. Pharand adds that in the case of the Norwegian archipelago, “the 42 baselines varied from a few hundred yards to what is in effect 62 miles across the Lopphavet, the 62-mile line running 44 and 18 miles on either side of a submerging rock.”148 145 “Arctic Waters,” supra note 5, at 17. 146 See: Territorial Sea Convention, supra note 31, article 4 and LOS Convention, supra note 33, article 7. 147 Canada’s Arctic Waters, supra note 8, at 145. 148 Id., at 139.

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Pharand also considers that the issue of consolidation of title, which flows from the third criterion, is sufficiently important to warrant separate treatment. He acknowledges that the concepts of historic title and consolidation of title are closely related but provides a clear explanation of their distinct nature. Both invoke history as a basis for the acquisition of sovereignty over land or sea areas. The difference lies in the way in which history is invoked. In the case of historic title, history is relied upon as the sole basis for the claim of sovereignty. When such a claim applies to sea areas, an historical title represents an exception to the standard rules for the acquisition of maritime sovereignty and imports an exceptional burden of proof on the claimant State. In the case of the consolidation of title, history is invoked only as a complementary and subsidiary basis, to solidify or consolidate the title resulting from the primary or main basis. Where the claim is to a sea area, the main basis might be a bilateral treaty as in the Grisbadarna Case of 1909, or it could be the straight baseline system, as in the Fisheries Case of 1951. The role of history being one of consolidation only and not the main basis for the claim, consolidation of title does not constitute an exception to standard rules for the acquisition of maritime sovereignty and does not import any special burden of proof on the claimant State.149 The requirements for a consolidation of title are the same as those for an ­historic title but are applied less stringently: exercise of State authority (which might, however, be limited to legislation); long usage or passage of a long period of time (which will depend on the circumstances); and a general toleration or absence of formal protests by interested States (but to prevent a consolidation of title, foreign protests must be somewhat stronger than in the case of historic title).150 With this very complete and thorough analysis of the applicable rules, Pharand turns to the question of their application to the Canadian Arctic archipelago. Applying the first criterion to the Arctic archipelago, Pharand writes: “[J]udging from the commonly used Lambert conic projection, it would be difficult to maintain that the first criterion of the general direction of the coast is complied with.”151 For as Pharand points out, the northern coast of Canada runs in a generally east-west direction, whereas the Arctic archipelago 149 Id., at 139–140 [emphasis in the original]. 150 Id., at 146. 151 “Arctic Waters,” supra note 5, at 18.

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appears to project in a general northerly direction. However, Pharand believes that there are two ways in which it can be argued that the Canadian baselines around the perimeter of the archipelago meet the general direction of the coast criterion. The first is to appreciate that what really constitutes the northern coast of Canada is the outer line of the Archipelago. The International Court took that approach in the Fisheries case when it concluded that “what really constitutes the Norwegian coast line is the outer line of the skjaergaard.” On this basis, the straight baselines should be considered as valid, since they unquestionably follow the outer line or general direction of the Archipelago.152 The second method proposed by Pharand, which he states might be preferable, is to use a map with fewer distortions than a conic projection. Pharand refers to and reproduces a 1988 world map published by the National Geographic Society. This map, which displays the Robinson projection, depicts the polar regions in a far more realistic manner. Although some distortion remains at high altitude, the Arctic archipelago is more faithfully represented. “It is fully integrated to the mainland, and it is oriented east and west in the same general direction. Consequently, there is total compliance with the requirement of general direction of the coast.”153 Pharand even argues that the stricter test, formulated by the United States in 1987,154 has been met—the general trend of the most distant islands does not deviate more than twenty degrees from the coastline or its general direction.155 In discussing the second criterion, the International Court in the Norwegian Fisheries Case stated that “the real question raised in the choice of base-lines is in effect whether certain sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters.”156 Pharand, however, stresses the Court’s conclusion that “in the case of waters off a coast as unusual as that of Norway’s, the close link criterion should be liberally applied.”157 As Pharand insists, “surely the geographical configuration of the northern coast of Canada is unusual enough” to warrant a 152 153 154 155 156 157

Id. Id., at 19. U.S. Department of State, Limits of the Seas, No. 106 (31 August 1987), at 1. “Arctic Waters,” supra note 5, at 19. Norwegian Fisheries Case, supra note 108, at 133. “Arctic Waters,” supra note 5, at 19.

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similarly liberal application of the second criterion.158 Pharand identifies at least two important factors that help meet the close-link requirement. “First, the sea to land ratio is 0.822 to 1, considerably better than the 3.5 to 1 ration of the Norwegian Archipelago. The ratio represents the water area (366,862 square statute miles) as compared to the land area (445,814 square statute miles).”159 The second positive factor identified by Pharand, is “the quasipermanency of the ice over the enclosed waters,” which “bolsters the physical unity between land and sea.”160 Pharand declares that not only is Canada’s baseline system valid under the two compulsory criteria but that, as for the third criterion, Canada can invoke certain economic interests of the local inhabitants, the reality and importance of which are clearly evidenced by long usage. The Canadian Inuit have been fishing, hunting, and trapping in the waters and on the sea ice of most of the Arctic archipelago literally since time immemorial. As Pharand explains, [i]n addition to providing a vital income, the marine mammals ensure a high protein content in the Inuit diet essential to the maintenance of their health and energy in the rigorous climate of the Arctic. Not only is the traditional hunting of whales, seals, and other marine-related mammals vital to the economic and physical welfare of the Inuit, but it is also essential to their psychological well-being and preservation of their own identity.161 Inuit use and occupancy of the water and ice in the Arctic, asserts Pharand, can be relied upon to reinforce the validity of certain baselines, “particularly the 51-mile line across Lancaster Sound at the eastern end of Parry Channel and the 92-mile line across Amundsen Gulf on the west side of the Archipelago.”162 Pharand suggests that other factors may also validate Canada’s longer ­baselines. He recalls that although the length of straight baselines was briefly discussed by the International Court in the Norwegian Fisheries Case, no 158 Id. 159 Id. According to Pharand, “the calculation of land areas is restricted to islands and does not include the northern coastal strip above the Arctic Circle.” 160 Id. 161 Id., at 21. Pharand discusses the question of Inuit occupancy and use of the Arctic sea ice and its implication for Canada’s legal claim in an article co-written with David VanderZwaag. Donat Pharand and David VanderZwaag, “Inuit and the Ice: Implications for Canadian Arctic Waters,” Canadian Yearbook of International Law 21 (1983): 53. 162 Canada’s Arctic Waters, supra note 8, at 164.

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maximum length was set. Nor is any maximum length of baselines for coastal archipelagos prescribed in either the 1958 Convention on the Territorial Sea and the Contiguous Zone or the 1982 LOS Convention.163 However, Pharand is careful to consider whether the practice of States may have resulted in a rule of customary law prescribing a maximum length for straight baselines. Chapter 10 of his 1988 book reviews State practice in general and that of the Arctic States in particular.164 An updated version of this research also forms part of the discussion in his 2007 article. Pharand draws three conclusions on the basis of this investigation into the practice of States. The first is that the straight baseline system has been used by the great majority of coastal states, the rare exception being the United States. The second conclusion, based on an examination of the maps in the 1989 collection published by Scovazzi and colleagues, is that an appreciable number of baselines do not appear to meet the applicable criteria. Third, the proposal of the United States for a 24-mile maximum length for straight baseline segments has not been heeded.165 In light of these circumstances, Pharand argues that the current rule with respect to the length of straight baselines may be formulated as follows: “If baselines have been delimited in accordance with the criteria formulated in the 1951 Fisheries case…they are valid regardless of their length.”166 Of course, any coastal State must exercise the kind of reasonable judgment which the International Court held Norway had exercised in the drawing of its baselines. Pharand believes that in the case of Canada’s Arctic baselines, “a simple examination of the map shows that an obvious effort was made to keep the lines as close as possible to the coast and the perimeter of the Archipelago.”167 Pharand also argues that Canada can invoke historic or long usage of certain sea areas to consolidate the validity of its baselines. This argument goes beyond the regional economic interests covered by the third criterion discussed earlier. As already noted, an historical consolidation of title involves virtually the same elements as for a case of historic waters except that their proof is not as 163 However, Pharand explains that the 1982 LOS Convention, supra note 33, article 47, does provide a maximum length for oceanic archipelagos constituting the national territory of a State. 164 Canada’s Arctic Waters, supra note 8. 165 “Arctic Waters,” supra note 5, at 23. 166 Id. 167 Id.

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stringent, since, as Pharand explains, “historical consolidation merely supports or confirms title to a maritime area acquired by the establishment of straight baselines.”168 According to Pharand, the consolidation of title to the waters of the archipelago generally, and to those of Lancaster Sound, Barrow Strait and Amundsen Gulf particularly, arises out of “the exercise of legislative and administrative jurisdiction by Canada for about 80 years and the general toleration of States, the purpose of such exercise being to protect certain vital interests in those water areas.”169 This conclusion, declares Pharand, “reinforce[s] the international validity of the Arctic baselines and the resulting status of internal waters landward of those baselines.”170 Legal Status of the Northwest Passage The question of the legal status of the Northwest Passage, which has periodically shaken the Canadian-American relationship over the last four decades, has also been at the heart of Pharand’s writings. His contribution to this debate, which has only grown in importance as a result of climate change, is immeasurable. Although Pharand’s detailed arguments on straight baselines make a strong case for the enclosed waters to be considered Canadian internal waters, the Northwest Passage itself may not have the same status. Indeed, the United States has always considered that the Passage, which cuts through the Canadian archipelago, constitutes an international strait. Every study published by Pharand on the Northwest Passage begins with an introductory section in which he provides a description of the Northwest Passage. His most comprehensive description can be found in his 1984 book, Northwest Passage: Arctic Straits. In the first half of the volume, Pharand discusses the following themes: description of the Northwest Passage; the Northwest Passage before 1880 (British period); the Northwest Passage after 1880 (Canadian period); commercial development of the Northwest Passage; and marine transport and support systems in the Northwest Passage. The first chapter, in particular, which contains a detailed description of the approaches and basic routes of the Northwest Passage and which features in Pharand’s 168 Canada’s Arctic Waters, supra note 8, at 167. 169 Id., at 179. Pharand reminds us that “[w]hat is required here is not an acquiescence, as would be the case for historic waters, but simply an absence of opposition on the part of the generality of States or, in the words of the Court in the Fisheries Case, a ‘general toleration.’” Pharand at 174 then goes on to explain in some detail why the 1970 American protest cannot be considered an effective protest to prevent a consolidation of title from arising with respect to the areas in question. As for Canada’s vital interests, Pharand at 175 identifies three: the marine environment, the Inuit and national security. 170 “Arctic Waters,” supra note 5, at 28.

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later texts, has been one of his significant contributions to legal scholarship on the Arctic. So many scholarly articles on the Arctic preface their analysis with a reference to Pharand’s ‘routes’. He single-handedly framed the terms of reference within which the legal debate about the status of the Northwest Passage takes place. This debate, or stalemate, has opposed the Canadian position that the Arctic waters are Canadian historic internal waters to the U.S. view that the various routes of the Northwest Passage form an international strait. The issue of international straits was a divisive one at UNCLOS III.171 And as Pharand explains, although a compromise was eventually reached as to the nature and scope of the right of passage, which would apply to ‘straits used for international navigation’, the Conference was unable to agree on an actual definition of such straits.172 Consequently, existing customary international law must be relied upon, particularly as interpreted and applied by the Inter­ national Court in the Corfu Channel Case (United Kingdom v. Albania).173 In its 1949 Judgment, which is still the only international decision on the question, the Court declared that an international strait had to meet two criteria: “one pertaining to geography and the other to the function or use of the strait.”174 Pharand begins by analysing the twin criteria before applying them to the Northwest Passage. Relying on the traditional customary definition of a legal strait, as updated by both the 1958 Territorial Sea Convention and the 1982 LOS Convention, Pharand states that “the geographic criterion is satisfied for a legal strait to exist, when there is an overlap of territorial waters in the natural passage between land joining two parts of the high seas (or EEZ) or one part of the high seas (or EEZ) with the territorial sea of a foreign state.”175 As to the second criterion, Pharand admits that “the required degree of use for international navigation is much more difficult to apply than the geographical criterion, since both the 1958 Territorial Sea Convention and the 1982 Law of the Sea Convention are silent on this important question.”176 According to Pharand, the crux of the matter is to decide “what factors are relevant and what their relative importance should be in deciding if the use of a strait has been sufficient to classify it as an international strait.”177 171 See generally: R.R. Churchill and A.V. Lowe, The Law of the Sea (Manchester: Manchester University Press, 3rd ed., 1999), at 104–110. 172 Canada’s Arctic Waters, supra note 8, at 215. 173 Corfu Channel Case (United Kingdom v. Albania) [1949] I.C.J. Rep. 4. 174 “Arctic Waters,” supra note 5, at 30. 175 Id., at 34. 176 Id. 177 Id.

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In Pharand’s view, the leading expert on this issue of usage of an international strait is the Danish jurist Erik Bruël. He reports that in Bruël’s definitive two-volume treatise entitled International Straits, published in 1947,178 the Dane suggested that the question should be decided on the basis of such factors as “the number of ships passing through the strait, their total tonnage, the aggregate value of their cargoes, the average size of the ship and especially whether they are distributed among a greater number of nations—all of which seem to give good guidance, no single factor, however, being decisive.”179 Bruël also reproduced a number of expressions which had, over the years, come to define international straits: “routes maritimes indispensables, routes maritimes nécessaires à la navigation, grandes routes maritimes, passage habituel, international highways, highways for international traffic and natural traffic routes.”180 According to Pharand, these expressions accurately reflected the state of the law when the International Court had to decide whether or not the North Corfu Channel was an international strait. The Court arrived at the conclusion that it “should be considered as belonging to the class of international highways through which passage cannot be prohibited by a coastal State in time of peace.”181 In answering the question “whether the test is to be found in the volume of traffic passing through the Strait or in its greater or lesser importance for the international navigation,” the Court stated that “the decisive criterion is rather its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation.”182 To better grasp the Court’s meaning, Pharand refers to the French text of the judgment, which is the authoritative version: “Le critère décisif paraît plutôt devoir être tiré de la situation géographique du Détroit, en tant que ce dernier met en communication deux parties de haute mer, ainsi que du fait que le Détroit est utilisé aux fins de la navigation internationale.”183 As Pharand relates in his 2007 article, he initially felt that the French text gave somewhat less importance to the requirement that the strait be used for international navigation. But never one to leave a stone unturned, Pharand consulted a 178 Erik Bruël, International Straits, 2 vol. (London: Sweet and Maxwell, 1947). 179 Id., vol. I, at 42–43. However, Pharand adds that in more recent times, the most complete study has been by Hugo Caminos, “The Legal Regime of Straits in the 1982 UN Convention on the Law of the Sea,” Recueil des Cours 205 (1987): 13. 180 Reproduced in “Arctic Waters,” supra note 5, at 34. 181 Corfu Channel Case, supra note 173, at 29. 182 Id., at 28. 183 Id.

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linguistic expert who confirmed that the coordinative conjunction “ainsi que” gave equal weight to the two criteria.184 Pharand emphasizes that the factor deemed most important by the Court was that the North Corfu Channel had been a “useful route for international maritime traffic.” Indeed, the evidence had shown that it had been a very useful route for the flags of seven States: Greece, Italy, Romania, Yugoslavia, France, Albania and the United Kingdom. The 2,884 crossings reported over a twentyone-month period included only those ships that had put into the port of Corfu and had been visited by customs. In other words, argues Pharand, “the actual use of the North Corfu Channel had been quite considerable.”185 On the basis of these key passages from the International Court’s judgment, Pharand argues that “before a strait may be considered international, proof must be adduced that it has a history as a useful route for international maritime traffic.”186 Pharand finds confirmation for this assessment in the view expressed by the United Kingdom in its pleadings in the 1951 Norwegian Fisheries Case, wherein it defined an international strait as “any legal strait to which a special regime as regards navigation applies under international law because the strait is substantially used by shipping proceeding from one part of the high seas to another.”187 Pharand also refers to scholars who share his interpretation of the functional criterion.188 He reproduces, for example, the following comment by O’Connell on the Court’s decision: “[I]t is clear that it need not be the only or an indispensable or a necessary avenue, but equally clear that mere potential utility is insufficient.”189 184 The opinion of Pierre Calvé, Emeritus Professor and former dean of the Faculty of Education, University of Ottawa, interpreting the French text, reads: “It would seem at first that the judgment gives priority to the purely geographical factor, that is the geographical situation of the strait between two parts of the high seas, rather than the functional criterion (its use for international navigation), since the judgment states that the decisive criterion is its geographical situation. However, the fact that the authors took care to specify what they meant by this geographical criterion in explaining it by two subcriteria linked by the coordinative conjunction ‘as well’ leaves no doubt as to their intention to consider those two sub-criteria as complementary and equivalent in importance.” Personal communication between Calvé and Pharand, 16 September 2005, reproduced in “Arctic Waters,” supra note 5, at 65–66, note 198. 185 Id., at 35. 186 Id. [emphasis in the original]. 187 Norwegian Fisheries Case, supra note 108, Pleadings, vol. II, at 555. 188 See “Arctic Waters,” supra note 5, at 35–36. 189 D.P. O’Connell, The International Law of the Sea, vol. 1 (Oxford: Clarendon Press, 1982), at 314. Pharand also quotes Baxter who has written that “international waterways must be considered to be those rivers, canals and straits which are used to a substantial extent by

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Pharand insists that “[t]he view that actual, as opposed to potential, use is necessary for a strait to qualify as ‘one used for international navigation’ is shared by the great majority of commentators.”190 And he backs up this statement with an impressive list of law of the sea experts: De Visscher, Koh, Howson, Nandan and Anderson, and Rothwell. However, as Pharand acknowledges, despite the fairly general view that a certain level of actual use is required, the United States continues to assert that potential use is sufficient to satisfy the functional criterion. This view has been expressed, for instance, by Richard J. Grunawalt of the U.S. Naval War College: Some nations take the view that an actual and substantial use over an appreciable period of time is the test. Others, including the United States, place less emphasis on historical use and look instead to the susceptibility of the strait to international navigation. The latter view has the greater merit.191 Pharand considers the U.S. policy to be an isolated interpretation, having been unable to discover any other nation that shares the view. Pharand also emphasizes that the U.S. ‘potential use’ interpretation is completely unsupported by customary international law, which is the law applicable to the question.192 On the basis of his analysis of the Corfu criteria and the evidence adduced in support, Pharand proposes the following definition of an international strait: An international strait is a natural passage between landmasses or islands, with a width of up to 24 nautical miles, joining two parts of the high seas (or EEZ) or one part of the high seas (or EEZ) with the territorial sea of a foreign state, and has a history as a useful route for international maritime traffic.193

190 191

192 193

the commercial shipping or warships belonging to states other than the riparian nation or nations.” R.R. Baxter, The Law of International Waterways (Cambridge: Harvard University Press, 1964) at 4–5, reproduced in “Arctic Waters,” supra note 5, at 35 [emphasis added by Pharand]. Id. R.J. Grunawalt, “United States Policy on International Straits,” Ocean Development & International Law 18 (1987): 445, at 456. Pharand comments: “Considering the title of the article and the statement quoted, it is difficult to attach weight to the disclaimer of the author, at 445, that his views ‘do not reflect the official position of the U.S. Department of Defense or the government’.” “Arctic Waters,” supra note 5, at 36, n. 214. “Arctic Waters,” supra note 5, at 36. Id.

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As for the sufficiency of the use, Pharand believes it is to be determined mainly by reference to the number of transits and of flags represented. It is against this precise definition that he then proceeds to examine the legal status of the Northwest Passage. According to Pharand, the geographic criterion is easily met in that the Northwest Passage links two parts of the high seas or EEZs. Although there is no longer any overlap of territorial waters in the Northwest Passage as a result of the drawing in 1985 of straight baselines, Pharand asserts that the determining factor is that the Passage does link the Atlantic and Pacific Oceans. However Pharand insists that the functional criterion, “requiring a history of use for international maritime traffic, is not as easily applied.”194 However, it is precisely in his treatment of the functional criterion that one of Pharand’s great qualities as a scholar, his meticulousness, shines through. For he has painstakingly and patiently gathered and organized all of the statistics and relevant information regarding navigation of the Northwest Passage, beginning with Amundsen’s three-year voyage in 1903–1906. This factual dossier provides a solid foundation for his ultimate conclusion that the Northwest Passage is not at present “a useful route for international maritime traffic.”195 Pharand’s 2007 article includes a table entitled “Foreign Transits of the Northwest Passage (1903–2005).” The table builds on earlier versions contained in his 1984 and 1988 books. Information is provided with regard to the year of transit, the name of the ship, the country of registry, the particular route taken, the type of ship, and the nature of the voyage. A second table summarizes and classifies the data according to the type of ship (yachts/small boats, tanker, icebreakers/icebreaking tugs, passenger ships), the number of transits, the nature of the voyage, and the State registry for each type of ship. The information gathered in the two tables is then used by Pharand to determine whether transits by foreign commercial surface ships have established a history of use for international navigation sufficient enough to consider the Northwest Passage an international strait. According to Pharand, the twenty transits by yachts and small pleasure crafts can hardly be characterized as maritime traffic since their transits took place with the supervision and frequent assistance of Canadian authorities.196 The two transits in 1969 by the Manhattan, an ice-strengthened U.S. tanker, occurred at a time when there was still a strip of high seas across the main series of straits (Parry Channel) of the Northwest Passage. There was, therefore, no legal requirement for the United 194 Id., at 37. 195 Id., at 42. 196 Id., at 41.

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States to obtain prior authorization for the transits.197 As Pharand has written, “if the Manhattan had succeeded in making M’Clure Strait in 1969, it would have remained on the high seas throughout and, strictly speaking, would not have come under Canada’s jurisdiction at all.”198 As for the eighteen recorded transits by foreign icebreakers, all obtained Canada’s prior authorization, except the 1985 voyage of the U.S. Coast Guard vessel (USCGS) Polar Sea. Pharand gives the following account of the Polar Sea’s westerly crossing in August 1985: Having been notified of the impending transit, Canada informed the United States that it considered all the waters of the Archipelago as historic internal waters and that a request for authorization would be necessary. The United States refused to make such a request and, eventually, the two governments agreed that the transit would take place without any request… Nevertheless, there was good cooperation between the officials of both countries and three Canadian representatives were accepted aboard: one from the navy, another from the coast guard, and the third from the Department of Indian and Northern Affairs.199 The twenty-nine passenger ships, which could be considered commercial and therefore maritime traffic, all requested prior authorization and complied with Canada’s legal requirements. This was accomplished either by a letter of request to Foreign Affairs, in the case of the early transits, or by obtaining a certificate of compliance following an inspection process by Transport Canada.200 Pharand considers one final category of ships: naval ships. He asserts that in the case of the Northwest Passage, “only two transits by naval ships are publicly known to have taken place and both were U.S. nuclear submarines. These were 197 Id., at 38: [i]n spite of the fact that the Manhattan accepted Canadian Navy Captain T C Pullen aboard as representative of Canada, and later had to be assisted by the CCGS Sir John A. Macdonald in both directions, the United States refused to ask prior authorization. The reason was that the Manhattan had intended to remain on the high seas throughout and exit through M’Clure Strait (Route 1) at the western end of the Passage. But, as it turned out, the Manhattan was forced to turn back about halfway through and use the narrow Prince of Wales Strait (Route 2), where it had to go through the territorial waters of Canada because of the presence of the small Princess Royal Islands. 198 “Northwest Passage,” supra note 99, at 109. 199 “Arctic Waters,” supra note 5, at 39. 200 Id., at 42.

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the USS Seadragon, which made a westerly crossing in 1960, and the USS Skate, which made an easterly transit in 1962.”201 Pharand states that it is his understanding that both transits were made pursuant to Canada/U.S. defence arrangements. Canada even had a representative on board the Seadragon, in the person of Commander O.C.S. Robertson. Both transits therefore occurred with “Canada’s consent and cooperation.”202 Pharand adds that there is every likelihood that similar defense arrangements are still in place, referring to a 2005 Globe and Mail interview in which Defence Minister Bill Graham explained that the two States have a protocol in place whereby the United States notifies Ottawa when its submarines wish to transit Canadian waters.203 For this reason, Pharand concludes that “such submarines cannot be counted as foreign naval ships passing as of right and cannot contribute to making the Northwest Passage an international strait.”204 Pharand also tackles the question of whether secret or unauthorized submarine transits, outside any bilateral or multilateral arrangement, could be prejudicial to Canada’s sovereignty claim over the Northwest Passage. The answer is that it is impossible for a country to respond to any sovereignty challenge if it has no reason to be aware of it. However, if such a reason does exist in the case of Canada and it takes no remedial measure, those transits might indeed become prejudicial to a claim of internal waters. Otherwise, such secret transits should be considered as constituting a violation of Canada’s sovereignty.205 On the basis of this factual analysis of the transits of the Northwest Passage over a hundred-year period, Pharand draws the following conclusion: Given the control exercised by Canada over those foreign transits, and considering the small number of commercial ships involved, it is evident that the Northwest Passage has not had a history as a useful route for international maritime traffic. The transit by the USCGS Polar Sea icebreaker seems to constitute the one single exception, where prior authorization was not sought, either expressly or by implication. However, it  must be remembered that this took place in 1985, prior to the 201 202 203 204 205

Id., at 37. Id. Id. Id. Id.

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establishment of straight baselines making the waters of the Northwest Passage internal waters of Canada. That one transit, which was strongly protested by Canada, is surely not sufficient to turn the Northwest Passage into an international strait, subject to the right of transit passage.206 Although Pharand concludes that the Northwest Passage is not at present an international strait subject to a right of transit passage for all foreign ships, the question remains whether a right of innocent passage might not yet apply. This question flows from the baseline provisions in the 1958 Territorial Sea Convention and the 1982 LOS Convention. Both instruments provide that a right of innocent passage will continue to exist in waters enclosed by straight baselines if it existed prior to the drawing of the baselines.207 The legal issue is, therefore, whether prior to the establishment of Canada’s baselines in 1985, a right of innocent passage existed through the Northwest Passage. As Pharand explains, “[b]efore the straight baselines were established in 1985, two gates of territorial waters existed in the Northwest Passage: one in Prince of Wales Strait and the other in Barrow Strait.”208 Before 1970, at a time when Canada claimed only a three-mile territorial sea, a gate of Canadian territorial waters existed in Prince of Wales Strait because of the presence of Prince Royal Island in the middle of the strait, which measures about ten miles across at that point. “The second gate of territorial waters was formed in Barrow Strait in 1970, when Canada extended its territorial waters to 12 miles as some 57 coastal States had already done.”209 Pharand concludes that since the right of innocent passage applies to territorial waters in general, “a fortiori it applies to those lying in straits connecting two parts of the high seas… The conclusion is that a right of innocent passage in favor of all ships existed in the Northwest Passage before straight baselines were established in 1985.”210 However, one important legal aspect remains to be addressed. As Pharand reminds his readers, Canada established its straight baselines pursuant to the 206 Id., at 42. Indeed, Huebert has shown that in the weeks prior to the Polar Sea’s transit, the Canadian and American governments had worked out an acceptable arrangement, agreeing that the transit would in no way prejudice the legal position of either party regarding the status of the Northwest Passage. See the diplomatic correspondence cited and its analysis in R. Huebert, “Steel, Ice and Decision-Making: The Voyage of the Polar Sea and its Aftermath. The Making of Canadian Northern Foreign Policy” (Ph.D. thesis, 1994), at 211–214 and 230. 207 Territorial Sea Convention, supra note 31, article 5(2) and LOS Convention, supra note 33, article 8(2). 208 “Arctic Waters,” supra note 5, at 42. 209 Id. 210 Id., at 42–43.

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customary international rules applied by the International Court in the 1951 Norwegian Fisheries Case. As a result, all of the enclosed waters, including the Northwest Passage, became internal waters that were no longer subject to the right of innocent passage. Article 5(2) of the 1958 Territorial Sea Convention changed the customary law applied in the Norwegian Fisheries Case by providing that where baselines were employed, a right of innocent passage continued to exist in “areas which previously had been considered as part of the territorial sea or of the high seas.” However, Canada was not a party to the 1958 Convention when it drew its baselines. Consequently, the rule in Article 5(2) would only be binding upon Canada if it had become part of customary international law by 1985. Typically, Pharand takes nothing for granted and thoroughly investigates this critical question. Once again, facts and statistics are gathered in support of his legal conclusion. The 1958 Territorial Sea Convention came into force in 1964, with 22 ratifications. By 1985, 23 additional ratifications, accessions and successions had raised the number of parties to 45. However, these 45 parties included only 21 of the 66 states that had used the straight baseline system and only two of an additional 12 that had adopted enabling legislation. This means that a mere 23 states, out of 78 subscribing to the straight baseline system, had accepted to be bound by the 1958 Convention when Canada established its straight baselines in 1985.211 Relying on the 1984 Gulf of Maine Case, in which the International Court refused to characterize the equidistance method of continental shelf delimitation as a rule of customary law despite much stronger evidence of State practice, Pharand asserts that Article 5(2) of the 1958 Territorial Sea Convention was not binding upon Canada in 1985 as a matter of customary international law. “The inescapable conclusion is that no right of innocent passage exists in the new internal waters of the Northwest Passage.”212 211 Id., at 43. 212 Id. Pharand also insists that no right of innocent passage can be deemed to exist as a consequence of Canada’s ratification of the LOS Convention on 7 December 2003. LOS Convention, supra note 33, article 8(2) provides that “where the establishment of a straight baseline…has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage…shall exist in those waters.” However, nearly twenty years elapsed between the drawing of the baselines and Canada’s consent to be bound by article 8(2). “By that time, the waters enclosed by the 1985

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Pharand’s 2007 article ends, however, with a warning—one that he has been repeating for the last forty years. While the Northwest Passage may not at present fulfil the criteria for an international strait, it could well become an international strait in the future. Climate change and the disintegration of the ice pack are already making foreign commercial navigation more attractive. Although the level of maritime traffic in the Corfu Channel Case was fairly high, a considerably lower threshold would probably suffice in the Northwest Passage. As Pharand warns, “[b]ecause of special factors such as the remoteness of the region, the difficulties of navigation, and the absence of alternative routes, comparatively little use for international navigation might be required. A pattern of international shipping across the Passage, developed over a relatively few years, might be considered sufficient to make it international.”213 And if the Northwest Passage were to become an international strait, it would seriously weaken Canada’s authority to control navigation by foreign ships. According to Pharand, the possible internationalization of the Northwest Passage will depend essentially on two factors: the number of transits by foreign flags and the effectiveness of the measures taken by Canada to control such navigation.214 Pharand stresses that it is not in Canada’s interest to block all foreign shipping and refers to official statements in which this policy has been confirmed.215 Yet, he adds: The reason that the Passage should remain “Canadian” is that it is the only way to protect adequately certain fundamental national interests. These interests are basically three in number: the security of the remote and immense Arctic region; the exceptionally fragile nature of the marine environment and ecosystem; and the Inuit and other inhabitants of the region, whose traditional livelihood and way of life depend on the preservation of the environment.216 Indeed, Pharand believes that Canada “not only has the right but… the obligation to protect these interests,” which would unquestionably be threatened by uncontrolled international navigation of the Northwest Passage.217

213 214 215 216 217

straight baselines had already acquired the firm status of internal waters, not subject to the right of innocent passage, and this status has not changed.” Id., at 44. Id. Id., at 48. Id. Id. Id.

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In the final section of his 2007 article, Pharand makes several suggestions and recommendations that would enable Canada to exercise more effective control over its Arctic waters. However, it must be said that a number of these measures were already part of Pharand’s recommendations in the late 1970s, for instance, that a polar class icebreaker should be acquired to enable Canada to operate year-round in all its safety control zones; that a submarine detection and control capability should be developed; and that the number of long-range patrol aircraft should be increased and their effectiveness improved. Pharand was also one of the first to recommend that the NORDREG reporting system should be made mandatory. In his 2007 article, Pharand adds some new items to Canada’s ‘must have’ list: an increase in the number of Canadian Rangers, the construction of a deep-water seaport at Iqaluit and the development of year-round search and rescue capability.218 Many of Pharand’s recommendations, a number of which were formulated several decades ago, are now a central part of the Canadian government’s Arctic strategy. For example, in 2007, Prime Minister Harper committed to expanding the Canadian Rangers from 4,000 in 165 patrols to 5,000. As of May 2014, there were more than 5,000 Rangers in 179 patrols.219 On 10 August 2007, Prime Minister Harper announced a plan to refurbish the existing deepwater port at the former mining site in Nanisivik220 and on 27 August 2008, he announced Canada’s intention to build a new polar class icebreaker, the CCGS John G. Diefenbaker.221 In light of the problems and challenges currently facing some of the announced projects, Pharand’s warning should be kept in mind. Irrespective of which measures are finally adopted or which projects are given the green light, one thing—he insisted—is beyond discussion: “enforcement is of paramount importance.”222 One final but critical aspect of Pharand’s work on the Arctic must be emphasized lest this brief overview of Pharand’s scholarship leave the reader with the impression that his signal academic abilities have been exercised solely in the cause of Canadian nationalism. This would be a skewed view and indeed 218 Id., at 52. 219 See the website of the Canadian Army at http://www.army-armee.forces.gc.ca/en/ canadian-rangers/about.page? 220 “Expanding Canadian Forces Operations in the Arctic,” Resolute Bay, Nunavut, 10 August 2007, on the website of the Prime Minister of Canada, Stephen Harper, at http://www .pm.gc.ca/eng/news/2007/08/10/expanding-canadian-forces-operations-arctic. 221 “The John G. Diefenbaker National Icebreaker Project,” Ottawa, 28 August 2008, on the website of the Prime Minister of Canada, Stephen Harper, at http://www.pm.gc.ca/eng/ news/2008/08/28/john-g-diefenbaker-national-icebreaker-project. 222 “Arctic Waters,” supra note 5, at 52.

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constitute an unfair appreciation of his contribution to the law of the Arctic. For over twenty-five years, Pharand has argued that while Canada has a strong legal claim over the waters of the Arctic archipelago, it is in Canada’s best interest to intensify cooperation with the other Arctic States. Such cooperation, according to Pharand, would help protect Canada’s most important interests in the Arctic, namely, “[T]he special marine environment, the welfare of the Inuit population and the national security of the country.”223 Pharand was advocating bilateral user agreements well before the 1988 Agreement between Canada and the United States on Arctic Cooperation was signed.224 And in his 2007 article, Pharand argues that a number of other bilateral agreements should be concluded between Canada and its neighbours. He highlights the need for a marine environmental agreement with Denmark, an environmental protection agreement for the Beaufort Sea with the United States, and a technical cooperation agreement with Russia, among others.225 As for circumpolar cooperation, Pharand was advocating in 1989 for the creation of an Arctic Basin Council, whose principal role would be “de promouvoir la coopération entre États arctiques dans tous les domains de l’utilisation pacifique de ces regions.”226 He subsequently prepared a draft treaty for an Arctic Council while he was a member of a working group of the Canadian Institute of International Affairs, which recommended its creation to the Canadian government.227 Pharand’s vision of the institution included a strong and permanent representation for the indigenous peoples of the Arctic. During the 1990s, Canada played a leading role in the establishment of the Arctic Council, which became a reality on 19 September 1996 through the adoption of the Ottawa Declaration.228 One of Pharand’s most important legacies is his contribution to the creation of this important forum for dialogue and cooperation among Arctic States, particularly as they relate to the protection of the marine environment. 223 Canada’s Arctic Waters, supra note 8, at 235. 224 Agreement between Canada and the United States on Arctic Cooperation, 11 January 1988, 1852 U.N.T.S. 59. 225 “Arctic Waters,” supra note 5, at 55. 226 “Problèmes dans l’Arctique,” supra note 45, at 163. 227 Working Group of the National Capital Branch of the Canadian Institute of International Affairs, “The Arctic Environment and Canada’s International Relations,” Ottawa, March 1991, Appendix A, at 1–10. 228 Declaration on the Establishment of the Arctic Council, 16 September 1996, reprinted in 35 I.L.M. (1996) 1387.

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Conclusion An attempt has been made to summarize Pharand’s scholarship over a period of fifty years, but the work is so much more detailed, nuanced, and researched than it is possible to demonstrate here. His many publications are an enduring testimony to his mastery of the complex legal issues that pertain to the Arctic. Referring to Pharand’s three books, The Law of the Sea of the Arctic, Northwest Passge: Arctic Straits, and Canada’s Arctic Waters in International Law, Donald McRae wrote in 1987 that “[t]his trilogy cements Professor Pharand’s position as the leader in the field of international law and Arctic waters.”229 Referring specifically to his third book, McRae adds: This short encapsulation of the major themes in Canada’s Arctic Waters in International Law hardly does justice to the wealth of detail and precision of argument its pages disclose. There is in this book the accumulated wisdom of years of research that has been subjected to close and careful analysis… Whether or not the issue of Canadian sovereignty over Arctic waters has been finally laid to rest, international lawyers everywhere are indebted to Professor Pharand for his meticulous and scholarly analysis of the issue which combines unparalleled knowledge of the facts with rigorous intellectual scrutiny.230 Such a glowing assessment of Pharand’s authority and scholarly qualities is shared by a number of other experts, many of them outside Canada. In 1989, Vaughan Lowe wrote that “[t]he editors of the series [Studies in Polar Research] have chosen wisely in securing Donat Pharand as the author of the study of Canada’s Arctic waters. Professor Pharand is already well established as the leading authority in the field.”231 Charles Rousseau declared that “[1]e professeur Pharand est indiscutablement l’un des grands spécialistes du droit maritime canadien et des problèmes juridiques liés à l’Arctique. Son nouvel ouvrage 229 D.M. McRae, Book Review of Canada’s Arctic Waters in International Law by D. Pharand, Canadian Yearbook of International Law 25 (1987): 535. Ted McDorman has also referred to Donat Pharand as “[t]he foremost world authority on the international law of the sea in the Arctic.” T.L. McDorman, Book Review of The Northwest Passage: Arctic Straits by D. Pharand, Dalhousie Law Journal 9 (1985): 827, at 833. 230 McRae, supra note 229, at 537. 231 V. Lowe, Book Review of Canada’s Arctic Waters in International Law by D. Pharand, International and Comparative Law Quarterly 39 (1989): 703.

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[Canada’s Arctic Waters in International Law] confirme avec éclat une réputation qui n’est plus à démontrer.”232 Pharand has been praised for the “thorough and systematic approach [he] brings to his work.”233 For Victor Prescott, “Pharand’s latest study [Canada’s Arctic Waters in International Law] is elegant in structure and language, clearly argued and possessed of that wonderful balance between generalisation and detail.”234 In a review of Pharand’s 1973 book, The Law of the Sea of the Arctic, Michael Rutter emphasized that “[t]he book contains much information of an historical, geographical and scientific nature, not ordinarily accessible to a lawyer… Yet such information may often be indispensable to a proper understanding of basic legal concepts.”235 And, of course, many experts have praised Pharand for his charts. D.N. Hutchinson wrote that “Professor Pharand provides a fascinating account of the intricate geography of the Northwest Passage… A large, detachable chart greatly facilitates understanding.”236 Claude Jacquemart, among many others, also highlighted this feature of Pharand’s texts: “Un ouvrage sérieux et très bien documenté, dont la lecture est facilitée par la présence de cartes.”237 And yet despite their widely recognized scholarly attributes, Pharand’s contribution is in fact much larger than his writings. Pharand has travelled the nation and the world to share his passion and knowledge of the Arctic with others. During one year alone, in 1988, he travelled from coast to coast, equipped with his charts238 and his famous pointer, sharing his insights and 232 Ch. Rousseau, Book Review of Canada’s Arctic Waters in International Law by D. Pharand, Revue générale de droit international public 93 (1989): 464. 233 B. Fleming, Book Review of The Law of the Sea of the Arctic by D. Pharand, Canadian Yearbook of International Law 12 (1974): 369, at 370. 234 V. Prescott, Book Review of Canada’s Arctic Waters in International Law by D. Pharand, National Geographic Research (1989): 271. 235 M.F. Rutter, Book Review of The Law of the Sea of the Arctic by D. Pharand, Alberta Law Review (1975): 371. 236 D.N. Hutchinson, Book Review of The Northwest Passage: Arctic Straits by D. Pharand, International and Comparative Law Quarterly 36 (1987): 172. 237 C. Jacquemart, Book Review of The Law of the Sea of the Arctic by D. Pharand, Annuaire français de droit international 20 (1974): 1125, at 1126. 238 Pharand is most proud, and rightly so, of a map of the Canadian Arctic archipelago, which he devised with engineering students at the University of Ottawa. Using small lights, Pharand can highlight the main route through the Northwest Passage (including red and green lights at the entrance to the passage). Pharand can also light up on his map the Canadian Arctic baselines and the outer limit of Canada’s EEZ.

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incredible knowledge on the issue of Canadian sovereignty in the Arctic. A born communicator, Pharand has made the Arctic real for his audiences, many of whom will never experience the Arctic first hand. Pharand has also used his writings and lectures to highlight the beauty but incredible vulnerability of the Arctic environment.239 Yet, for Pharand, the imperative to protect the Arctic at all costs stems from a concern for the Inuit people. [M]any environmental impacts of year-round shipping…would also result in impacts on the Inuit culture and economy, since the latter are intimately linked with the environment through the cultural and economic importance attached to the harvesting of wildlife resources… In light of the above impacts, it appears that the government should follow a two-track policy with regard to Inuit rights in the areas of the Northwest Passage. First, in order to strengthen its claim to the passage waters and the Arctic archipelago waters in general, Canada should endeavour to settle outstanding Inuit claims with all possible expediency. Second, it should take appropriate measures to ensure that Canadian sovereignty over all those waters is appropriately established and maintained. Only in this way will the government be able to protect the rights and way of life of Canada’s indigenous Inuit population.240 Though he has devoted his life to Arctic legal issues, Pharand never lost sight of the fact that international legal principles must first serve the cause of Canada’s (and the Arctic’s) northern peoples. With respect to the Arctic, Pharand has been something of a visionary. In 1955, over fifty years ago, Pharand wrote that a general warming trend made navigation in the Arctic a real possibility: La navigation, au sens propre de ce terme, n’est pas encore possible au pôle Nord lui-même, à l’exception de la navigation sous-marine, mais il est très possible qu’elle le devienne. Le réchauffement général dont nous 239 Pharand has written at length on the legal aspects of Canada’s pollution control jurisdiction over the Arctic waters. Donat Pharand, “Oil Pollution Control in the Canadian Arctic,” Texas International Law Journal 7 (1971): 45; Donat Pharand, “Contiguous Zones of Pollution Prevention,” Syracuse Journal of International Law and Commerce 1 (1973): 257; Donat Pharand, “Protection of the Marine Environment,” Ottawa Law Review 9 (1977): 505; and Donat Pharand, “La contribution du Canada au développement du droit international pour la protection du milieu marin: le cas spécial de l’Arctique,” Études internationales 11 (1980): 411. 240 Arctic Straits, supra note 7, at 143.

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avons parlé fait non seulement diminuer les glaces en superficie, mais aussi en épaisseur.241 In the early 1970s, he advocated the drawing of straight baselines to consolidate Canada’s claim, a suggestion that Canada acted upon in 1985. He believed that Canada’s national interest would be well served through close cooperation with its Arctic neighbours, and, as shown, his proposals influenced the creation of the Arctic Council nearly a decade later. However, Pharand has also been warning for decades that Canada must be willing and prepared to defend its interests in the Arctic. Commenting in 1986 on Pharand’s second book, The Northwest Passage: Arctic Straits, André Farand, a Foreign Affairs official on secondment with Québécair wrote: “Donat Pharand nous fait bien sentir le sens de l’urgence attaché à toutes ces questions et nul doute que les responsables n’y resteront pas insensibles.”242 Twenty years later, the urgency is palpable. Pharand has shown us the way forward. One must hope that his voice, the voice of wisdom that comes after a lifetime’s commitment to the Arctic, will be heard. 241 “La théorie des secteurs dans l’Arctique à l’égard du Droit international” (Doctorat d’Université, Université de droit, d’économie et de sciences sociales de Paris, 1955), at 145. 242 A. Farand, Book Review of Northwest Passage: Arctic Straits by D. Pharand, Études internationales 17 (1984): 218, at 219.

Part 2 Arctic Ocean Regional Governance

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chapter 2

The Arctic Region Council Revisited

Inspiring Future Development of the Arctic Council Kristin Bartenstein*



Introduction

Anyone interested in Arctic legal issues will sooner or later come across Donat Pharand’s publications. He has written about virtually all the legal questions pertaining to the Arctic. However, it is not only the wide range of his scholarly work, but also the quality of his writings—the result of in-depth research, attention to detail and methodical analysis—which are most stimulating. Pharand’s work reminds us that if we strive for real understanding, we have to devote time and intellectual effort to gain genuine insights. It also teaches us to be careful when writing our findings, to structure our arguments with care, to make appropriate distinctions and, most challenging, to adopt thorough, straightforward reasoning. The bar is high for those who wish to emulate him. A great deal of Pharand’s scholarly work was driven by his wish to contribute to the settling of concrete legal issues. Even today, decades later, many of his writings are still relevant and so is his work on the ‘Arctic Region Council’, an intergovernmental body he proposed be established in order to encourage Arctic cooperation. Drawing on a suggestion made by Maxwell Cohen in 1971,1 Pharand first advocated the establishment of an Arctic regional organization in 1987 and developed a precise model in 1992.2 He and his fellow campaigners became instrumental in Canada, spear-heading the groundwork and persuading their Arctic counterparts to formalize Arctic cooperation. It  took a decade to translate the scholarly idea into an institution, but the fact that the idea did eventually materialize highlights the practical relevance of Pharand’s work. * Associate Professor, Faculty of Law, Laval University, Quebec City, Canada. 1 Maxwell Cohen, “The Arctic and the National Interest,” International Journal 26 (1970– 1971): 52, 79. 2 See: Donat Pharand, “The Case for an Arctic Region Council and a Treaty Proposal,” Revue générale de droit 23 (1992): 163, endnote 5. The first annotated and slightly different draft treaty on the establishment of an Arctic Region Council was published in 1991. Donat Pharand, “Draft Arctic Treaty: An Arctic Region Council, in Canadian Institute of International Affairs,” Canadian Arctic Resources Committee (1991), A1–A10.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004284593_003

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The regional cooperative efforts first culminated in the adoption of the 1991 Arctic Environmental Protection Strategy,3 conceived to guide joint actions aimed at combating environmental degradation. Narrowly defined by its focus on environmental protection, this early, fairly informal cooperation was set in motion without any institutional arrangement. It was instead to take place through regular ministerial meetings. A more comprehensive basis for Arctic cooperation was provided five years later, in 1996, when the Arctic Council was established.4 The new regional cooperative structure nevertheless still fell short of two main features of Pharand’s proposal. It was neither established through an international treaty nor created as an intergovernmental organization. Instead, the founders of the Arctic Council instituted a ‘high-level forum’ through the Ottawa Declaration.5 Their preference for a soft law structure, based on a political declaration, no doubt sprang from the perceived advantages to be gained from an approach that did not involve any transfer of or restriction to national sovereignty and that has since provided the Arctic States with the greatest political leeway. Today, almost 20 years after its establishment, the Arctic Council seems to have reached a point in its development where the cooperation it embodies needs to be reframed in order to adapt to a new context and new challenges.6 It is therefore timely to reflect on the Arctic Council’s future, as substantive cooperation is likely to be influenced by the institutional framework in which it takes place. The Arctic Council has made its mark in scientific cooperation and produced many useful studies that enhance our knowledge of the Arctic environment. Its contribution to political cooperation, however, is far less impressive. Yet, increased interest in Arctic issues within the Arctic region and beyond—fuelled by global warming, the promise (or threat) of lucrative resource exploitation and emerging shipping routes—has given rise (in some circles) to calls for change in Arctic cooperation. It seems necessary now more than ever, for the Arctic States to cooperate on policy-shaping and law-making and to better integrate new Arctic stakeholders, such as non-Arctic States and non-State actors. Building on Pharand’s scholarly work and existing models of 3 See: “Arctic Environmental Protection Strategy,” 14 June 1991, reprinted in 30 I.L.M. (1991): 1624. 4 See: Timo Koivurova, “Alternatives for an Arctic Treaty? Evaluation and a New Proposal,” Review of European Community and International Environmental Law 17 (2008): 14, 16. 5 “Declaration on the Establishment of the Arctic Council,” 16 September 1996, reprinted in 35 I.L.M. (1996): 1387. 6 Oran Young, “The Arctic in Play: Governance in a Time of Rapid Change,” International Journal of Marine and Coastal Law 24 (2009): 423, 426–427.

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cooperation, this contribution will present some exploratory thoughts on the future of the Arctic Council, with a particular view to cooperation regarding the ocean space.7

Purpose of Arctic Cooperation

Institutional arrangements must be tailored to the purposes of cooperation, which in turn are shaped by the wider legal context. A consideration of these parameters of Arctic cooperation is thus indispensable. Pharand’s proposal intended to facilitate Arctic cooperation through the establishment of an intergovernmental organization.8 These cooperative efforts were to focus on fostering environmental protection, coordinating scientific research, conserving and appropriately managing living resources, promoting sustainable economic development,9 ensuring the region’s exclusive use for peaceful purposes and furthering indigenous peoples’ health and well-being.10 It comes as no surprise that these purposes correspond to the first three objectives specified in article 123 of the 1982 U.N. Convention on the Law of the Sea (LOS Convention) concerning cooperation in enclosed and semi-enclosed seas,11 as Pharand considered the Arctic Ocean as meeting article 122’s definition of a semi-enclosed sea.12 These seas, given their small size, their often shallow waters and their limited exchange with other bodies of water, are particularly vulnerable to pollution and other anthropic perturbations and therefore need particular protection.13 The LOS Convention’s Part IX provides the legal framework for the protection of these seas and could form the legal context of regional cooperation in the maritime Arctic.

7

8 9 10 11 12 13

For a comprehensive study, see Erik J. Molenaar, “Current and Prospective Roles of the Arctic Council System within the Context of the Law of the Sea,” International Journal of Marine and Coastal Law 27 (2012): 553–595. Pharand, “The Case,” supra note 2, at 191 (article 2(1)). Id., at 191 (article 2(2) through (5)). Id., at 191 (article 2(6) and (7)). U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397. Pharand, “The Case,” supra note 2, at 187 et seq. Budislav Vukas, “The LOS Convention and the Polar Marine Environment,” in Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention, ed. Davor Vidas (Cambridge: Cambridge University Press, 2000), 34, 40. See also: Umberto Leanza, “Le régime juridique international de la Méditerranée,” Recueil des Cours de l’Académie de Droit international de La Haye 236 (1992): 127, 141.

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Yet, whether the Arctic Ocean falls within article 122 is a subject of controversy and needs to be addressed.14 The first condition, according to which the sea in question must be surrounded by at least two States, is met as the Arctic Ocean is surrounded by five coastal States (Canada, the United States, the Russian Federation, Norway and Denmark/Greenland). As current Arctic cooperation relates to both marine and inland space, Finland, Sweden and Iceland are also Arctic Council members. Second, in order to fall within the definition of article 122, the Arctic Ocean would have to be a gulf, basin or sea. While the word ocean suggests a considerable marine space, size is not an explicit criterion in article 122 and the Arctic Ocean, one sixth the size of the Indian Ocean, is by far the smallest ocean. As for the terminology, the common expression ‘Arctic Ocean’ is certainly supported by the International Hydro­ graphic Organization’s (IHO) definition,15 but references to the word ‘sea’ can be found in scientific literature16 and some Germanic expressions.17 It seems possible to qualify the Arctic Ocean as a sea or, as does Pharand,18 as a basin, for the purposes of article 122. Article 122 furthermore suggests that it is necessary to differentiate between enclosed and semi-enclosed seas.19 An enclosed sea is connected to another sea or the ocean by a ‘narrow outlet’. The Arctic Ocean’s connections with the Atlantic Ocean certainly cannot be qualified as narrow. It is thus crucial to determine whether the Arctic Ocean is a semi-enclosed sea “consisting entirely or primarily of the territorial seas and exclusive economic zones” of the 14

15 16

17

18 19

LOS Convention, supra note 11, article 122: For the purposes of this Convention, “enclosed or semi-enclosed sea” means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States. International Hydrographic Organization, Limits of Oceans and Seas (S-23), 3rd edition, 1953, 11. Arctic Sea and Arctic Mediterranean Sea are common expressions. See, for example, Bert Rudels, “Constraints on Exchanges in the Arctic Mediterranean—Do They Exist and Can They Be of Use?,” Tellus 62A (2010), 109–122 and “The Ocean,” at Marinebio, http:// marinebio.org/oceans/ and “Arctic Ocean,” at Encyclopedia Britannica, http://www .britannica.com/EBchecked/topic/33188/Arctic-Ocean/57838/Oceanography. See: German Nordpolarmeer (North Polar Sea) and nördliches Eismeer (Northern Ice Sea), Norwegian polar havet (Polar Sea), Swedish Norra ishavet (Northern Ice Sea) and Arktiska havet (Arctic Sea). Pharand, “The Case,” supra note 2, at 187. See also: Satya Nandan and Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea, 1982: A Commentary, Vol. III (The Hague: Martinus Nijhoff Publishers, 1995), at paragraph 122.1.

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bordering States. As some parts of the Arctic Ocean are high seas, the relevant criterion relates to the word primarily. In absence of a treaty definition of the term, its general meaning applies. Accordingly, the ocean space must consist, “for the most part,”20 of territorial seas and exclusive economic zones (EEZs). Such a clear dominance may only be ascertained in view of the Arctic Ocean’s limits. Yet, there is no generally accepted geographical definition of the Arctic Ocean. The IHO’s definition, for example, excludes all marginal seas, whereas the definition in the U.S. Central Intelligence Agency’s World Factbook includes Hudson Bay and the Greenland Sea.21 The goal however should be to define the maritime region that would benefit from regional cooperation. A definition that includes all marginal seas, but excludes the Hudson Bay and the Greenland Sea, seems most suitable (Fig. 1).

Figure 1

20 21

The Arctic Ocean

Source: Annuaire du droit de la mer 17 (2012), 217–257; English version provided by Frédéric Lasserre, Department of Geography, Laval University.

“Primarily,” Merriam Webster, at http://www.merriam-webster.com/dictionary/primarily. See: “CIA World Factbook,” at http://www.cia.gov/library/publications/the-world-factbook/ geos/xq.html.

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The Arctic Ocean, as defined above, covers an area of 11,501,000 km2. The high seas, the area beyond the 200 nautical mile EEZs of coastal States, composed of the central portion of the Ocean (2,805,000  km2) and the Barents Loophole (66,000 km2), cover 2,871,000 km2. Thus, 25 per cent of the Arctic Ocean are high seas. The inclusion of internal waters can be questioned, as these waters are not mentioned in article 122. However, it can be argued that the provision’s silence stems from these waters’ generally negligible extent. Consequently, the relevant marine sector appears to extend from the high seas to the waters under coastal States’ jurisdiction, including internal waters. If the ocean area within the Arctic archipelago that Canada claims as its historic internal waters is eliminated from the equation, the Arctic high seas still account for only 27 per cent of the total area.22 It may, therefore, be argued that the Arctic Ocean consists for the most part, or primarily, of territorial seas and EEZs. Should the Arctic Ocean qualification under article 122 be contested, some scholars advocate for the analogous application of article 123,23 which provides  guidance for regional cooperation.24 Others dismiss the relevance of the  merely “exhortatory provision,”25 both in general and with respect to the 22 23

24

25

Without the Arctic archipelago (987,094  km2), the Arctic Ocean’s total extent would amount to 10,513,906 km2, with 7,642,000 km2 under the jurisdiction of coastal States. LOS Convention, supra note 11, article 123:  States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article. See: Peter J. Ricketts, “North American Semi-Enclosed Seas: A Survey,” in The Management of Semi-Enclosed Seas : The Emerging Global Pattern and the Ligurian Case, eds. Hance D. Smith and Adalberto Vallega (Genova: International Geographical Union, Commission on Marine Geography, 1990), 71, 74 and Donald R. Rothwell and Christopher C. Joyner, “The Polar Oceans and the Law of the Sea,” in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, eds. Alex G. Oude Elferink and Donald R. Rothwell (The Hague: Martinus Nijhoff Publishers, 2001), 1, 19. See: Uwe Jenisch, “The Baltic Sea: the Legal Regime and Instruments for Co-Operation,” International Journal of Marine and Coastal Law 11 (1996): 47, 54.

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Arctic.26 Article 123, however, deserves a closer look. It indicates that States ‘should cooperate’, which is indeed mere hortatory wording. Furthermore, the subsequent expression ‘shall endeavor’ conveys no more than a best efforts obligation. Paragraphs (a) to (c) detail the policy areas in which these best efforts are to be made, while paragraph (d) calls for the opening up of cooperation to other stakeholders.27 Article 123 must also be put into its proper perspective, as it explicitly maintains the LOS Convention’s framework of rights and obligations. The absence of any additional powers for bordering States notwithstanding, Pharand considers article 123 to be relevant for the discussion on Arctic cooperation, and his appraisal is persuasive. As a treaty provision, weak as it may be, article 123 enshrines the preference for regional cooperation in the law of the sea in a very explicit manner and thus carries considerable symbolic weight. While it leaves it up to the States to determine the scale and scope of cooperation, it provides guidance by pointing to the most relevant policy areas for cooperation. Article 123 should form the conceptual backbone of the development of Arctic Ocean cooperation. Together with the LOS Convention’s provisions on cooperation in the field of environmental protection,28 article 123 is a significant reminder for States to pool their efforts and create synergies. While article 123 may or may not have been a source of inspiration for the founders of the Arctic Council, some of its contents appear in the Ottawa Declaration. The Arctic Council’s main objective is to “provide a means for promoting cooperation” among Arctic States,29 with a special view to cooperation in the field of sustainable development and environmental protection. Another objective is to involve the inhabitants of the Arctic, in particular its indigenous communities, in this cooperation.30 The special membership status of Permanent Participants is closely tied to this objective.31 Other identified objectives of Arctic cooperation include the exchange of information and the raising of awareness on Arctic-related issues.32 All of these objectives can be linked to the protection of the Arctic environment. Indeed, cooperative 26 Molenaar, supra note 7, at 563. 27 Notwithstanding the particular language used, Pharand, “The Case,” supra note 2, at 189 asserts that States are obliged to attain the listed objectives. 28 LOS Convention, supra note 11, article 194 and Part XII, Section 2. 29 Ottawa Declaration, supra note 5, article 1(a). 30 Id. 31 Id., article 2. 32 Id., article 1(b) through (d).

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measures for pollution control and of resource management benefit from good scientific knowledge and improve human health and well-being, while the economic development of a region cannot be sustainable without mitigating its negative effects on the environment. It is generally agreed that transnational environmental problems should be addressed through cooperation. This preference is reflected in the LOS Convention’s Part IX and several other provisions33 and has led to numerous regional initiatives under the Environment Programme (UNEP) Regional Seas Programme.34 The objective of fostering cooperation on environmental protection holds a prominent place in the Ottawa Declaration, which it shares, however, with the purpose of ensuring sustainable development. While Arctic cooperation has focused on environmental issues from the start and yielded respectable scientific results,35 policy-shaping cooperation is still in its infancy. Marking the beginning of standard setting, 2009 is rightly considered a pivotal year,36 but the shift remains cautious. The Arctic Search and Rescue Agreement37 and the Arctic Agreement on Cooperation on Marine Oil Pollution Preparedness and Response are only curative38 and no preventive measures have been adopted.39 The States’ jurisdiction has remained mainly unaffected. It is clear that Arctic law-making, particularly with respect to prevention, is still dominated by the individual measures of the coastal States. This unilateralism, though encouraged by the LOS Convention,40 must be overcome in order to enable comprehensive cooperation, as must the reluctance to open Arctic cooperation to non-Arctic States and non-State actors.

33 34 35

36 37 38 39 40

LOS Convention, supra note 11, article 192 and Part XII, Section 2. See generally U.N. Environment Programme (UNEP), Regional Seas Programme, at http:// www.unep.org/regionalseas/. For an assessment of climate-related initiatives, see Duncan French and Karen Scott, “International Legal Implications of Climate Change for the Polar Regions: Too Much, Too Little, Too Late?,” Melbourne Journal of International Law 10 (2009): 631, 642 et seq. See: David VanderZwaag, “The Arctic Council at 15 Years: Edging Forward in a Sea of Governance Challenges,” German Yearbook of International Law 54 (2011): 281, 297. Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011, Canada T. S. 2013, No. 6. Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, 15 May 2013, available on the Arctic Council website, supra note 3. See, however, the Arctic States’ support of the Polar Code negotiations, “Tromsø Declaration,” 29 April 2009, available on the Arctic Council website, supra note 3. See LOS Convention, supra note 11, article 234.

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Participation The issue of participation in Arctic cooperation has become crucial, as the region draws increasing attention for its resources, environment and geostrategic situation and for scientific research. Not only Arctic States, but also a growing number of non-Arctic States and non-State actors have turned their attention to the northernmost part of the globe. They are, or may become involved in shipping, shipbuilding, mining or oil and gas extraction and fishing, or in monitoring these activities. As Oran Young argues, the Arctic, which first changed from an arena of world politics during the Cold War to a distinct and almost self-contained region around the time of the establishment of the Arctic Council, seems to be in the process of becoming reconnected to the global world.41 Consequently, it seems very difficult today to envisage cooperation on a strictly circumpolar basis. It should be added that article 123, paragraph (d), explicitly calls on the States bordering a semi-enclosed sea to invite other interested States or international organizations to cooperate with them, ‘as appropriate’. It appears as if this invitation should indeed be issued. Current Arctic cooperation is primarily an Arctic States’ enterprise. Under the Ottawa Declaration, the eight founding members, referred to as Arctic States, are the only States that enjoy full member status. Consequently, decision making falls to them exclusively.42 Although not envisioned by the Ottawa Declaration, the distinction between the five coastal States and the three other Arctic States must be kept in mind, as the latter lack authority over the ocean space and their interests may diverge accordingly. Indigenous peoples’ organizations are involved in the Arctic Council as Permanent Participants. Besides the three original Permanent Participants mentioned in the Declaration,43 three other organizations have been granted this status.44 Further organizations could become Permanent Participants, provided that their total number remains under that of member States.45 Intended to ensure “active participation and full consultation,”46 the status implies systematic consultation as well 41 Young, supra note 6, at 428. 42 Ottawa Declaration, supra note 5, article 7 and Arctic Council Rules of Procedure, 18 September 1998, as amended, 15 May 2013, rule 7, available on the Arctic Council website, supra note 3. 43 Inuit Circumpolar Conference (ICC), Saami Council (SC), Russian Association of Indigenous Peoples of the North, Siberia and the Far East (RAIPON). 44 Arctic Athabaskan Council (AAC), Aleut International Association (AIA) and Gwich’in Council International (GGI). 45 Ottawa Declaration, supra note 5, article 2. 46 Id.

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as the right to rise to a point of order47 and to make proposals for cooperative activities.48 All other Arctic stakeholders, be they non-Arctic States or nonState actors interested in Arctic affairs, must settle for the classic observer status, which is granted to players if, in the view of the Arctic States, they can contribute to the Arctic Council’s work.49 Besides 20 organizations, twelve non-Arctic States50 currently enjoy this status. At the 2013 Arctic Council ministerial meeting in Kiruna, the number of State observers doubled from six to twelve. However, this development does not hide the unease caused among the Arctic States by the strong will of non-Arctic States to participate in Arctic cooperation. Prior to the Kiruna Summit, several applicants were offered ad hoc admission to ministerial meetings, as an alternative to the requested formal status of observer.51 The cautious approach of the Arctic States was not necessarily motivated by Arctic matters,52 and even if it was linked to Arctic politics, the main concern was not the requesting State’s lack of capacity to contribute to the Arctic Council’s work.53 The reluctance of the Arctic States to let non-Arctic States look over their shoulders in ‘their’ Arctic affairs still appears to linger with the deferred decision on the application of the European Union for observer status.54 There is little to suggest that Arctic States are inclined to enhance 47 48 49 50 51

52

53

54

Rules of Procedure, supra note 42, rule 12. Id., rule 26. Ottawa Declaration, supra note 5, article 3. The Rules of Procedure, supra note 42, Annex 2 detail the criteria that are used to assess applicants’ suitability for observer status. France, Germany, the Netherlands, Poland, Spain, the United Kingdom, China, Italy, Japan, South Korea, Singapore and India. China, South Korea, Italy and the European Union were ad hoc observers at the 2009 ministerial meeting in Tromsø. See: “List of Participants,” http://www.arctic-council.org/ index.php/en/about/documents/category/53-final-reports-and-Statements. And again at the 2011 ministerial meeting in Nuuk, along with Japan. See: “List of Participants,” http:// www.arctic-council.org/index.php/en/about/documents/category/20-main-documents -from-nuuk. The handling of China’s application was linked to tense relations with Norway over human rights issues, in particular after the Nobel Prize was awarded to Chinese dissident Liu Ziaobo. See: “Norway shadowed the Snow Dragon,” Barentsobserver, 10 September 2012, at http://barentsobserver.com/en/arctic/norway-shadowed-snow-dragon-10-09. The perceived lack of respect of indigenous traditions proved problematic for the European Union after its import ban on seal products. See: E.U. Regulation (EC) No. 1007/2009 of the European Parliament and of the Council of 16 September 2009 and Commission Regulation (EU) No. 737/2010. See the reference to Arctic States’ concerns that must be resolved before a final decision on the E.U. application is made. Kiruna Declaration, 15 May 2013, available on the Arctic Council website, supra note 3.

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participation of non-Arctic States. As for non-State actors, the Kiruna Summit left their number unchanged despite several applications.55 It is questionable whether the strategy pursued by the Arctic States under the Arctic Council, which consists of framing Arctic politics as politics of the region, is appropriate, both for the Arctic Council itself and for the region. For the Arctic Council to be recognized as the Arctic forum, it might be timely for Arctic States to acknowledge that Arctic policy is no longer a strictly Arctic concern.56 Otherwise, players that consider themselves Arctic stakeholders might turn to other fora with the consequence of prompting less relevance for the Arctic Council and, worse, less Arctic States’ influence on Arctic issues.57 Furthermore, the region and its environment are likely to benefit from enhanced participation of all Arctic stakeholders, as the contribution of non-State actors’ expertise may be instrumental in improving practices and processes. Non-Arctic States, for their part, might be more willing to ensure compliance with rules that an extended Arctic Council might adopt, if they contributed to shaping them. Inclusive cooperation also appears to be well suited for the elaboration of rules and standards related to activities that involve rights of non-Arctic States, such as fishing and navigation, should the Arctic Council decide to address these issues.58 Comprehensive rule-making regarding Arctic navigation cannot be based on the coastal States’ unilateral powers alone, their broad jurisdiction in the ice-covered Arctic Ocean notwithstanding,59 nor can it be undertaken by a regional body, if the intention is to apply the rules to all vessels. The work within the International Maritime Organization (IMO) will therefore continue to be indispensable, even after the conclusion of the Polar Code.60 Likewise, if commercial Arctic fishing takes place on the high seas, protection of the fish stock could require the activity being regulated by a new or existing regional fisheries

55 56 57 58

59 60

Apparently, applications of seven intergovernmental and non-governmental organizations were ignored as no official document mentions them. See Young, supra note 6, at 427 et seq. The establishment of the ‘Arctic Circle’, as a platform that aims to bring together a wide range of Arctic stakeholders, points to this possibility. See http://www.arcticcircle.org/#. For an insightful analysis on the pacta tertiis problem, see Molenaar, supra note 7, at 565 et seq. and also Olav Schram Stokke, “Protecting the Arctic Environment: The Interplay of Global and Regional Regimes,” Yearbook of Polar Law 1 (2009): 349, 368 et seq. See LOS Convention, supra note 11, article 234. Negotiations are expected to wrap up in November 2014. As a first step, the Maritime Safety Committy of the IMO approved the draft International Code for Ships Operating in Polar Waters at its 93rd session in May 2014, IMO Doc. MSC 92/22, 30 May 2014, paragraph 10.50. For the draft, see IMO Doc. MSC 93/22/Add.3, 9 June 2014, Annex 24.

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management organization (RFMO).61 Widespread participation of all Arctic stakeholders in Arctic cooperation could enable the articulation of Arctic positions and strengthen the Arctic voice in other specialized international fora.62 Arguably, consensus among Arctic States would further negotiations on Arctic issues with non-Arctic States and consensus achieved among Arctic States and other Arctic stakeholders would give these positions far more vigor in international bargaining. This is true even for issues that are not exclusively Arctic issues, but that affect the Arctic region, such as—most notably—climate change. In order to be acceptable, inclusive cooperation would have to be nuanced through differentiated membership. Pharand’s proposal of an Arctic Region Council distinguished between the eight Arctic States, called founding Members,63 and admitted Members, that is, other States, governmental and non-governmental organizations, territorial and regional governments.64 With­in the latter category, States are on par with non-State actors, which seems problematic, at least for an international body that might be given regulatory powers. Pursuant to Pharand’s proposal, applicants are eligible for admission if they have the capacity to produce evidence of ‘substantial interest’ in the Council’s work and to further its purposes, irrespective of their provenance and pursued interests. The Arctic States’ predominance is preserved through their automatic membership and the decision-making rules.65 Pharand’s proposal was clearly influenced by the Antarctic Treaty’s distinction between non-consultative and consultative, full-fledged voting members.66 While the original parties automatically enjoy consultative status, States subsequently admitted that seek consultative status are required to demonstrate their interest in Antarctica by conducting substantial scientific research.67 Any direct comparison between Arctic and Antarctic cooperation is certainly flawed due to the major differences between both regions.68 As no State has territorial ­sovereignty in 61

Arctic fishing as such is currently not part of any RFMO’s mandate. Recently, the Arctic coastal States considered it unnecessary to develop a RFMO or other arrangement, but agreed upon the desirability of interim measures to deter unregulated fishing in the Arctic high seas. See: Meeting on Arctic Fisheries, Nuuk, Greenland, 24-26 February 2014, Chairman’s Statement, at http://naalakkersuisut.gl/en/Naalakkersuisut/Press-Statements /2014/02/Arktisk-hoejsoefiskeri. 62 VanderZwaag, supra note 36, at 311. 63 Pharand, “The Case,” supra note 2, at 192 (article 3 (1)). 64 Id., at 193 (article 3 (2)). 65 Id. 66 Antarctic Treaty, 1 December 1959, 402 U.N.T.S. 71, article IX (1) and (2). 67 Id., article IX (2). 68 For a comprehensive overview, see: Rosemary Rayfuse, “Melting Moments: The Future of Polar Oceans Governance in a Warming World,” Review of European Community and International Environmental Law 16 (2007): 196–216.

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Antarctica and the adjacent maritime spaces,69 Antarctic cooperation is ‘regional’ in respect of the cooperation’s object rather than its participants, which are in some cases very remote to the Antarctic region. Furthermore, the Antarctic regime has had to grapple with its own share of shortcomings, among them the fact that active cooperation was, for some time, the preserve of a few powerful States.70 Nevertheless, an interesting feature of the Antarctic regime, and Pharand’s adaptation for the Arctic Region Council, is the signal of inclusion sent by its modulated membership. It allows for widespread participation by accommodating differences between member States. Pharand’s distinction between original members, which were assigned a predominant role within the institutional framework, and admitted members, which had first of all to establish their legitimate interest in cooperation, is based on exactly this integrative idea.71 Building on this inclusive approach, a three-tiered membership system coupled with a more accessible observer status is suggested as a means of reconciling inclusive cooperation with differentiated involvement of Arctic and non-Arctic States as well as indigenous peoples’ and other organizations. Full membership would be granted to all States and indigenous peoples’ organizations, while the prior-ranking legitimate interests of the Arctic States and the difference between States and indigenous organizations would be taken into account. Effective involvement of the latter should be upheld as they have distinct interests in Arctic policies and decisions.72 The category of Permanent Participants should be maintained and their participation be ensured by appropriate procedural means.73 Pharand’s category of admitted members, which is open to non-governmental organizations, including indigenous peoples’ organizations, has the advantage of considering such organizations as full participants in Arctic cooperation. However, they should not be blended into one 69

This prevailing view is based on the freezing of all sovereignty claims in Antarctica, pursuant to the Antarctic Treaty, supra note 66, article IV. Australia implicitly took a different stance, according to data on the Antarctic continental shelf that it submitted in 2004 to the Commission on the Limits of the Continental Shelf. Although Australia requested that the Commission not consider this set of data, the submission sparked objections from several States. See generally on the Commission website at http://www.un.org/ Depts/los/clcs_new/submissions_files/submission_aus.htm. 70 See: Sebastien Duyck, “Drawing Lessons for Arctic Governance from the Antarctic Treaty System,” Yearbook of Polar Law 3 (2011): 683, in particular 687 et seq. 71 See Pharand, “The Case,” supra note 2, at 192, comment to article 3 (2). 72 Koivurova, supra note 4, at 25. 73 For a critical assessment of the indigenous peoples’ involvement in Arctic governance, see: Sophie Thériault, “‘Northern Frontier, Northern Homeland’: Inuit People’s Food Security in the Age of Climate Change and Arctic Melting,” Southwestern International Law Journal 15 (2009): 223–249.

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category with other governmental and non-governmental organizations and non-Arctic States as doing so may dilute their voice. Participation of non-Arctic States must be devised so as to respect the Arctic States’ ocean sovereignty and territorial jurisdiction. Their involvement would thus remain limited when sovereign rights of the Arctic States are affected, but could go far beyond their current contribution as observers when technical aspects are addressed with the Arctic States’ consent or when rights of non-Arctic States are at stake.74 Such differentiated cooperation must be based on clear and nuanced rules on representation and voting. The suggested changes, however, imply a radical transformation of Arctic cooperation. They presume a shift in conception from cooperation among Arctic States to cooperation between States interested in managing and protecting the Arctic Ocean. As the Arctic States are anxious in regard to their sovereignty, there currently seems to be no political will among the Arctic States to follow the Antarctic path. For the time being, observer status might remain as the only means to ensure participation of non-Arctic States. The involvement of non-State actors should not go beyond observing, as these stakeholders do not have sovereign decision-making powers or responsibilities to national populations. With their varying backgrounds, interests and expertise, their contribution to good governance may nevertheless be crucial. Exchanges between non-State actors on the one hand and States and Per­ manent Participants on the other would be facilitated by institutional affiliation, which would arguably contribute to building mutual trust and improve decisions. The example of the Baltic regime, where 17 intergovernmental and 28 international non-governmental organizations enjoy observer status, is particularly inspiring,75 although these numbers might be difficult to match in the far more remote Arctic. Observer status appears to be the appropriate means to enable limited, but fairly widespread participation. By postponing the decision on applications submitted by seven intergovernmental and nongovernmental organizations at the Kiruna Summit, the Arctic Council has 74

75

For the proposition to grant non-Arctic States ‘consultative status’, see: Franklyn Griffiths, “Towards a Canadian Arctic Strategy,” Foreign Policy for Canada’s Tomorrow 1 (2009) at http://opencanada.org/wp-content/uploads/2011/05/Towards-a-Canadian-Arctic -Strategy-Franklyn-Griffiths1.pdf. Convention on the Protection of the Marine Environment of the Baltic Sea, 9 April 1992, 2099 U.N.T.S. 179. Observer status may be granted to “any intergovernmental organization and non-governmental international organization with specialized technical, scientific or equivalent expertise pertinent to objectives.” See: “Rules of Procedure of the Helsinki Commission,” adopted by the Extraordinary Meeting on 7 September 1999; as revised (in 2000, 2001, 2002 and 2008), rule 1.4, available on the website of the Baltic Marine Environment Protection Commission, at http://helcom.fi.

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adopted a more guarded attitude.76 In the short run, the decision might accommodate the fear of some Permanent Participants that their influence will dwindle as the number of observers grows. In the long run, however, the Arctic States’ reluctance with respect to both non-State actors and non-Arctic States might contribute to the sidelining of the Arctic Council in a context of growing global interest in Arctic affairs. Institutions In order to enable balanced cooperation, differentiated membership must translate into a nuanced, thought-out institutional framework. This does not mean that the Arctic Council’s nature as a forum must be called into question. As the Baltic and Antarctic examples demonstrate, effective cooperation can be achieved without an intergovernmental organization. Yet, these examples also show that well-designed organs are key. The Ottawa Declaration provides for a very basic institutional structure. The Arctic Council operates through meetings, which are biennial in the case of ministerial summits and more frequent in the case of the technical gatherings of the Senior Arctic Officials (SAOs).77 No organ was created. Instead the Arctic States, developing a tradition of rotating chairmanship, have been taking turns hosting these meetings.78 Technical cooperation is carried out in six working groups, which are mainly composed of State representatives and scientists and are coordinated by the SAOs. The working groups conduct scientific research, one of the Arctic Council’s core activities, and ensure follow-up on findings and recommendations.79 While the inchoate institutional framework conveys the low level of commitment that prevailed at the time of the Arctic Council’s establishment, the Arctic States have been creative when evolving needs made institutional adaptation necessary. The complete absence of any institutional framework, with the consequence of a secretariat migrating from one host State to the next, has shown its practical limits. With an increasing workload and intersessional activity, the need for permanency emerged over time and the Arctic Council Secretariat was created in early 2013. In the absence of a legal constitutive charter for the Arctic Council, the creation of the first and only organ of the Arctic Council rests on a simple decision made at the Nuuk ministerial 76 See supra note 55. 77 Ottawa Declaration, supra note 5, article 4. 78 Id., article 5. 79 For an assessment, see Vanderzwaag, supra note 36, at 285 et seq.

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meeting in 2011.80 Not unlike the Antarctic Treaty Secretariat, the Arctic Council Secretariat is an “organ without a body.”81 Other more subtle institutional additions have taken place since 2009. Task forces, temporary panels composed of Arctic States’ representatives and experts from the working groups, owe their origins to the 2009 Tromsø Summit; whereas the expert group on ecosystem-based management, composed of governmental experts and representatives of the Permanent Participants, was created at the 2011 Nuuk Summit. The task forces, entrusted with specific, often policy-shaping mandates, are an important innovation. Task forces were responsible for the negotiation of the two binding agreements facilitated by the Arctic Council, respectively on search and rescue and on oil spill response.82 Even the recently established task forces on pollution issues were given policy-oriented mandates.83 According to the Kiruna “Vision for the Arctic,” the Arctic States are willing to “strengthen the Arctic Council to meet new challenges and opportunities for cooperation and pursue opportunities to expand the Arctic Council’s role from policy-shaping into policy-making,”84 so that the Council’s institutional structure may continue to evolve. The Arctic Council’s ministerial meetings have been the driving force of cooperation85 and will most likely continue to assume steering responsibilities, while the new Secretariat may become the operative center. Further developments might be inspired by other cooperative models. Pharand’s Arctic Region Council proposal, for example, provided for an institutional framework with a Secretariat86 as a subsidiary organ, and two main organs, namely, the Assembly87 and the Commission.88 The two latter organs deserve some scrutiny. The Assembly was devised as a plenary organ, where all members meet and discuss issues related to the Council’s purposes. Its decisions 80 81

82 83 84 85 86 87 88

Nuuk Declaration, 12 May 2011, available at the Arctic Council website, supra note 3. With respect to the Antarctic Treaty Secretariat, see Patrizia Vigni, “The Secretariat of the Antarctic Treaty: Achievements and Weaknesses Three Years After its Establishment,” in Antarctica, Legal and Environmental Challenges for the Future, eds. Gillian Triggs and Anna Reddell (London: British Institute of International and Comparative Law, 2007), 17. “Senior Arctic Officials Report to Ministers,” 15 May 2013, p. 58 et seq. available on the Arctic Council website, supra note 3. Id., at 60 and 66. Arctic Council Secretariat, “Vision for the Arctic,” 15 May 2013, available on the Arctic Council website, supra note 3. See VanderZwaag, supra note 36, at 284. Pharand, “The Case,” supra note 2, at 193 (article 4(3)). Id., at 192 (article 4(1)). Id., at 193 (article 4(2)).

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were to be adopted by consensus and in the absence thereof, by a twothirds majority. While it was to be the principal forum for dialogue, political impetus  and consensus building, its decision-making powers were restricted. Consequently, it had limited capacity to influence the course of cooperation. Although the proposed Assembly elected the four non-permanent States to be admitted as members of the Commission,89 this a priori control over the Commission was limited by the fact that the Assembly, in making its decision, was bound by the Commission’s recommendation.90 The proposed Commission was to be in charge of adopting and implementing the measures necessary to fulfill the Council’s objectives and thus constituted its main decision-making organ. Composed of twelve members, four of which were to be  elected non-permanent members, it was to be dominated by the eight Arctic founding States, which were permanent members. The Arctic States’ predominance was compounded by the Commission’s decision-making rules. Decisions were to be made by consensus or, if such a consensus could not be reached, by a twothirds majority. It was the very essence of the consensus rule that decisions could not be made against the clear will of any Arctic State. If consensus was out of reach, it was still impossible for the four admitted members to overrule the Arctic States, as the two-thirds rule required the support of at least four of the founding Arctic States. The complex voting rules attempted to strike a balance between the interest of the Arctic States to remain in control of Arctic decision-making and the legitimate interest of the other Arctic stakeholders to have a say in decisions. Currently, such a proposed balance appears to be unacceptable to Arctic States. They obviously experienced discomfort when it came to granting observer status to non-Arctic States, which primarily allows for more insights into their Arctic policies and strategies but little actual influence regarding them. Arguably Arctic States are even less prepared to give non-Arctic States (and non-State actors) a say in Arctic decision-making, in particular if this implies that decisions may be made without or against the will of Arctic States, supported only by non-Arctic States and non-State actors. Dividing the work within the Arctic cooperative framework as suggested in Pharand’s proposal is, however, a very appealing idea. Rudiments of it are found within the Arctic Council as the ministerial representatives of the Arctic States bear the main political responsibility, whereas the coordinating responsibility 89 90

Id., at 192 (article 4(1)). Id., at 192 (article 3). According to the explicative note, admission ‘depends’ on a favorable recommendation of the Commission.

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is principally assumed by the SAOs, who in turn may rely on working groups for the execution of work. This division of work was certainly implied in the Ottawa Declaration,91 while Pharand’s proposal had the advantage of spelling it out clearly. Besides enhancing the efficiency of work, assigning explicitly different tasks to specialized organs could be an elegant way to deal with the differentiated participation of new stakeholders in Arctic cooperation. The current terms of cooperation between Arctic States and other stakeholders are outlined in the Arctic Council’s “Observer Manual for Subsidiary Bodies.”92 At the formal table, observers are assigned a “mainly observing role”93 and confined to a seat in the second row, literally94 and figuratively. Presentation of written and oral Statements by observers is subject to the discretionary decision of the chair, who must ensure the primacy of Arctic States and Permanent Participants.95 Observers may propose projects only through an Arctic State or a Permanent Participant and their financial contribution to such projects must generally not exceed the financing from Arctic States.96 However, these restrictions notwithstanding, the Observer Manual specifies that the observers’ “relevant contribution” is “encouraged” at the working group level.97 Nuanced and perhaps enhanced participation might eventually emerge from this implicit differentiation of the observers’ role. No complete overhaul of the Arctic Council’s main features or division of work is expected, but incremental changes are conceivable. In the foreseeable future, ministerial meetings will be where the Arctic States agree on policy orientations.98 Consequently, participation by other stakeholders at this level will continue to be an issue. Innovation may be expected at the technical level of cooperation, where involvement of other stakeholders is less politically problematic. Furthermore, special scientific or technical expertise could be particularly brought to bear in such a context. While working groups and task forces may seem to provide a  breeding ground for this kind of innovation, nuances are needed. If task forces  continue to be assigned mandates that bear more resemblance to policy-shaping assignments than to scientific-technical cooperation, related 91 92 93 94 95 96 97 98

Ottawa Declaration, supra note 5, article 4, indicates that SAO meetings may take place more frequently than the Council’s meetings “to provide for liaison and co-ordination.” “Arctic Council Observer Manual,” in “Senior Arctic Officials Report to Ministers,” supra note 82, Annex 2 at p. 90. Id., article 6. Id., article 7.3. Id., article 7.4. Id., article 7.5. Id., article 6. Ottawa Declaration, supra note 5, article 7, reaffirmed in id., article 5.

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sensibilities must be taken into account. Enhanced participation on task forces could then be perceived as an intrusion in the internal affairs of the Arctic States. The number of task forces might increase, as Arctic cooperation intensifies and diversifies. In order to avoid opposition to enhanced participation altogether, participation in task forces should be distinguished from participation in working groups. Systematic participation of all stakeholders, on a par with Arctic States, appears to be a realistic and even desirable objective as far as the conduct of scientific research within working groups is concerned. In contrast, stakeholders’ involvement in task forces should be devised in a form that goes beyond mere observation, but does not amount to equal participation. As a matter of course, the distinction between political and executive or technical cooperation is related to the Arctic States’ sovereignty and sovereign rights. Governance of the Arctic Ocean’s space is not the exclusive prerogative of the Arctic States, but their participation is indispensable. Therefore, as long as they are unwilling to forego some of their sovereign rights and to transfer powers to an intergovernmental organization specialized in Arctic cooperation, the degree of stakeholder participation will depend on the extent of the Arctic States’ sovereignty on a given question. If exclusive rights of the Arctic States are at stake, the initial policy decision to cooperate would be followed by the actual elaboration of recommendations or draft norms, while the decision to endorse these recommendations or norms would intervene as a third and last step. Active stakeholder participation would only be conceivable at the stage of elaborating recommendations and draft norms. By contrast, if comprehensive standard-setting is a shared responsibility, as it is for navigation and high seas fisheries, then the determination of the cooperation’s outline and the approval of its outcome would not fall exclusively to the Arctic States’ jurisdiction. Participation of all States on an equal footing would be conceivable, especially because in these cases, the Arctic Council would not have decision-making powers, but would aim to achieve consensus among Arctic States and other stakeholders in order to strengthen their positions within the IMO or an RFMO. New institutional arrangements would be necessary to enable multi-tiered participation of all Arctic stakeholders. Building on the current structure, it would be a minor institutional change to establish two subsidiary organs acting as a gateway between the ministerial and the technical level. They could be modeled on the Antarctic Treaty System’s Committee for Environmental Protection (CPE),99 which, upon consultation with different scientific and 99

The Committee for Environmental Protection was created by the Protocol on Envi­ ronmental Protection to the Antarctic Treaty, 4 October 1991, reprinted in 30 I.L.M. 1461, Article 11.

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technical bodies, bridges the gap between the scientific and the political world100 by providing advice and making recommendations to the party States at the Antarctic Treaty Consultative Meetings (ATCMs).101 Within the Arctic Council, a similar intermediary role has in practice been assumed by the SAOs, who coordinate assignments of the working groups and task forces and report back to the Arctic States’ ministers. The subsidiary organs would both be composed of SAOs and stakeholder representatives, but dedicated either to technical or to policy-shaping cooperation. Substantive work would continue to be carried out by working groups and task forces, but depending on their primary focus, they would be pooled under either the technical or the policy-shaping subsidiary organ. Rules of procedure could be tailored to the needs of each of these subsidiary organs and could define differentiated stakeholder participation. These specialized organs would help to improve the flow of information to the political level102 and, in the long run, could develop expertise of their own, which would spring from their role as go-between. Sufficiently close to technical cooperation to be aware of its potential and limitations, and conscious of policy obstacles to political cooperation without being themselves exposed to the same high-profile pressure as ministerial representatives, they could become driving forces of cooperation, as they are well positioned to play the role of a bi-directional transmission belt. Conclusion Oran Young deems “the prospects for negotiating a comprehensive and legally binding treaty for the Arctic […] dim.”103 I agree and would add that they seem equally dim for the transformation of the Arctic Council into an intergovernmental organization, at least in the near future. This is not to say, however, that there is no potential for developing the Arctic Council. Development is already under way and further institutional structures may be added and new binding treaties may be negotiated. With a view to the evolving international perception of Arctic cooperation, it seems necessary to call upon a wider circle of stakeholders to contribute to cooperation. Building on recent developments, it is possible to adapt the institutional framework to the shift from a ‘regional Arctic cooperation’ to an ‘international Arctic cooperation’. As global warming 100 Id., article 11, paragraph 5. 101 Id., article 12. 102 This improvement is needed according to Koivurova, supra note 4, at 24. 103 Young, supra note 6, at 441. This view is widely shared, see Koivurova, supra note 4, at 16.

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and growing economic activity are likely to induce major changes in the Arctic, environmental protection will become an increasingly urgent matter of cooperation. Despite the absence of a firm legal obligation that requires States of a maritime region to cooperate, there is a clear and justified preference for such cooperation and some guidance for the States that choose to cooperate. Although maritime spaces call particularly for cooperation, as many issues concern more than one State, Arctic cooperation should also extend to issues such as human well-being and land-based resource exploitation. These issues are not transnational as such, but they often have transboundary impacts and are, therefore, preferably addressed through cooperation. The strength of a differentiated cooperation scheme is its versatility, which, while steering an overall inclusive course, allows account for distinctions that should not be ignored.

chapter 3

Lessons Learned and Lost from Pharand’s Arctic Regional Council Treaty Proposal Andrea Charron*

Introduction

In 1992, Donat Pharand wrote an article entitled “The Case for an Arctic Region Council and a Treaty Proposal,”1 which foreshadowed the establishment of the Arctic Council in 1996.2 With organs and binding decision-making capabilities, Pharand’s Arctic Region Council was a more formal international organization and, arguably, on a stronger legal footing than the current Arctic Council. The Arctic Council was created by a declaration rather than by way of treaty and lacks conflict dispute mechanisms and the capacity to govern. Nevertheless, there is much to be learned from Pharand’s conception of an international Arctic governance body at a time when the Arctic Council is faced with new challenges and more States are expressing an interest in the Arctic. This contribution outlines the contributions Pharand has made to the idea of Arctic governance and the creation of an international Arctic governance body. It will address three questions. First, what are the differences between the treaty Pharand proposed and the 1996 Arctic Council Declaration? Second, what are the successes and challenges of the current Arctic Council? Finally, are there adjustments that can be made based upon Pharand’s proposal?

* Assistant Professor, Department of Political Studies and Deputy Director, Centre for Defence and Security Studies, University of Manitoba, Winnipeg, Canada. I am grateful to Richard Farthing-Nichol for his insightful comments. 1 Donat Pharand, “The Case for an Arctic Region Council and a Treaty Proposal,” Revue générale de droit 23 (1992): 163–195. His article was re-published in 1993 in a book dedicated to his mentor, Dr. Maxwell Cohen. Donat Pharand, “The Case for an Arctic Region Council and Arctic Treaty,” in Law, Policy and International Justice: Essays in Honour of Maxwell Cohen, eds. William Kaplan and Donald McRae (Montreal: McGill-Queen’s University Press, 1993), 69–106. 2 Declaration on the Establishment of the Arctic Council (The Ottawa Declaration), 16 September 1996, reprinted in 35 I.L.M. (1996): 1387. For an excellent article on the establishment of the Council, see: Evan T. Bloom, “Establishment of the Arctic Council,” American Journal of International Law 93 (1999): 712–772.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004284593_004

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Context: Arctic Governance in the 1990s

In 1992, the year Pharand’s draft treaty was published in the Revue générale de droit, there was no Arctic Council. During the Cold War, the Arctic was treated as an ice-infested buffer zone that separated the two superpowers; hence, there were few multilateral treaties or organizations in place respecting the region. The agreements that did exist were narrow in scope and limited in terms of party members.3 On 14 June 1991, after two years of preparatory meetings, Finland invited the seven other Arctic States (Canada, Denmark, Iceland, Norway, the former Soviet Union, Sweden and the United States), as well as nine State and nongovernmental Observers,4 to Rovaniemi in Finland to join the Arctic Environmental Protection Strategy (AEPS), the precursor to the Arctic Council. The June meeting resulted in a declaration that committed the eight Arctic States to participate in joint action plans with the goal of reversing pollution levels in the Arctic. The immediate concern was the fragile Arctic ecosystem that had been ravaged by decades of contamination and dumping of organic contaminants, oil, heavy metals, radioactive materials and acidifying substances.5 In the longer-term, the AEPS assisted in easing Cold War tensions especially between the former Soviet Union and the Nordic countries. Member States made decisions via consensus with each pledging to enact national legislation to give effect to the various protocols and pollution goals adopted by the group.6 3 The only regional agreement involving the five Arctic Ocean littoral States was the Agreement on the Conservation of Polar Bears, 15 November 1973, reprinted in 13 I.L.M. (1974): 13. Three bilateral agreements can be noted: the Convention for the Protection of Migratory Birds in Canada and the United States, 16 August 1916, 39 U.S. Stat. 1702, as amended; the Agreement between Canada and Norway on Sealing and Conservation of Seal Stocks in the Northwest Atlantic, 15 July 1971, Canada Treaty Series 1971/49; and the Agreement between Canada and the United States on the Conservation of the Porcupine Caribou Herd, 17 July 1987, Canada Treaty Series 1987, 31. 4 The observers included the Inuit Circumpolar Conference (ICC), Nordic Saami Council, USSR Association of Small Peoples of the North, Federal Republic of Germany, Poland, the United Kingdom, the United Nations Economic Commission for Europe, the United Nations Environment Programme, and the International Arctic Science Committee. 5 “Arctic Environmental Protection Strategy,” 14 June 1991, reprinted in 30 I.L.M. (1991): 1624 at 1644–1649, available on the website of the Arctic Council at . 6 The objectives of the AEPS were (i) to protect the Arctic ecosystem including humans; (ii) to provide for the protection, enhancement and restoration of environmental quality and the sustainable utilization of natural resources, including their use by local populations and indigenous peoples in the Arctic; (iii) to recognize and, to the extent possible, seek to accommodate the traditional and cultural needs, values and practices of the indigenous peoples as

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Apart from the AEPS, the only other international Arctic organizations of significance were the Nordic Council and the Northern Forum, both of which continue today. The Nordic Council was an inter-parliamentary body established in 1952 that included Denmark, Finland (1955), Iceland, Sweden, Norway, the Faroe Islands (1970), Åland (1970) and Greenland (1984).7 The Northern Forum, an organization composed of sub-national and regional organizations from Canada, Iceland, Japan, South Korea and Russia (with businesses as partners), was formed in 1990.8 While both of these organizations focused on increasing trade and development in the Arctic, the Nordic Council’s principal objective was strengthening a Scandinavian defense union. What was missing was a framework for multilateral cooperation that could transcend the AEPS’ focus on the environment, the Nordic Council’s focus on defense partnerships and the Northern Forum’s mission to “improve the quality of life of Northern people.”9 Pharand saw an opportunity for Canada to take a leadership role and ensure that the Arctic had a structure of regional governance. In his work, Pharand was quick to credit Professor Maxwell Cohen for his 1971 article advocating for “Canadian leadership in the development of an Arctic basin systems approach….”10 In addition, Pharand noted the work of the Canadian Arctic Resource Committee (CARC),11 the Inuit Circumpolar Council

determined by themselves, related to the protection of the Arctic environment; (iv) to review regularly the state of the Arctic environment ; and (v) to identify, reduce, and, as a final goal, eliminate pollution. See: Id., “Objectives,” at 1631. 7 See the website of the Nordic Council at http://www.norden.org. 8 See the website of the Northern Forum at http://www.northernforum.org. 9 Id., “Mission.” 10 Pharand, supra note 1, at 165. See also: Maxwell Cohen, “The Arctic and the National Interest,” International Journal 26 (1970–71): 21, 52–81 esp. 81. Professor Cohen outlined three inter-related Canadian Arctic issues and challenges: science/environmental, development/transportation and jurisdiction. He concluded at 81 that Canada would be wise to take the lead and develop an “Arctic basin systems approach having relevance to the polar area as whole and to the Canadian archipelago and its waters in particular.” 11 See: Franklyn Griffiths and Rosemarie Kuptana, “To Establish an International Arctic Council” (Canadian Arctic Resources Committee, 14 May 1991). See also: Franklyn Griffiths, “Arctic Council Origins: A Memoir,” (20 March 2011), http://gordonfoundation .ca/sites/default/files/images/Jan18%20-%20Griffiths_ArcticCouncilOrigins.pdf.  The Report was sponsored by the Canadian Arctic Resources Committee (CARC), the Inuit Circumpolar Council, and the Canadian Centre for Arms Control and Disarmament and supported by the Walter and Duncan Gordon Charitable Foundation. It laid out initial ideas for an Arctic Council, and recommended adoption of one of four possible structures, agenda items and principles for pan-Arctic cooperation.

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(ICC) and the national capital branch of the Canadian Institute of International Affairs (CIIA), of which Professor Cohen was a member. Pharand’s Arctic Region Council proposal was rooted in international institutional law. His vision of a Council attempted to reconcile the tension between national State interests and the need for cooperation and accommodation in international structures of governance. State sovereignty still had pride of place, but there was a conscious and firm push toward compromise.

Pharand’s Arctic Region Council Treaty

A priority for Pharand was to identify the important and most likely areas in which the Arctic Region Council could foster cooperation. These spheres of cooperation were to be linked to specific threats and challenges facing the Arctic involving a range of environmental, health and economic issues. His detailed explanations of the problems facing the region prove to be (unfortunately) accurate predictions of the future. Pharand dedicated considerable attention to the need to make the Arctic a nuclear-free and demilitarized zone despite the fact that the “Arctic states [were] unanimous in tacit opposition to negotiations among [A]rctic [S]tates on confidence building and arms control measures affecting the region, and would see all such issues treated in nonarctic negotiating forums only.”12 Pharand listed six areas of potential cooperation for the Council: (1) the protection of the environment; (2) the coordination of scientific research; (3) the conservation of living resources; (4) sustainable economic development; (5) the health and social well-being of Arctic inhabitants; and (6) cooperation for peaceful purposes only. It was evident to Pharand that Canada had a particular leadership role to play.13 Pharand argued that the Arctic Region Council should be based on a formal treaty primarily because it would give “legally binding effect to the political will of the Parties.”14 The legal status of declarations and other like instruments was too uncertain and, therefore, unsuitable to be the foundation for an international organization that would include States, non-State entities and international organizations (governmental and nongovernmental). He argued that only a treaty could give the Arctic Regional Council constitutional-like powers to bind the parties and would ensure a continued existence and mandate for 12 Griffiths and Kuptana, id., at 23. 13 Pharand, supra note 1, at 166–169. 14 Id., at 186.

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the Council. Given the lengthy list of areas in need of cooperation, longevity was an implied asset. Pharand’s proposed Treaty had nine basic provisions: (1) the geographic area of the Council’s activities; (2) the Council’s main purposes; (3) the conditions for membership; (4) the main organs of the Council, their powers and modes of operation; (5) the holding of meetings; (6) the sharing of expenses; (7) the settlement of disputes; (8) the manner of its entry into force; and (9) the procedures for treaty amendments and reviews.15 In terms of geographic area, Pharand defined the Arctic as all the ocean expanses and territory north of 60o North latitude, including the Aleutian Islands, Labrador and the region of northern Quebec known as Nunavik.16 His definition of the Arctic was more inclusive than those that relied solely on the Arctic Circle, isothermic or tree lines. The Arctic Region Council’s principal focus, as envisaged by Pharand, was to facilitate cooperation in the six areas outlined above, as well as fostering regional cooperation generally. Pharand specifically linked the purposes of the Arctic Region Council to article 123 of the U.N. Convention on the Law of the Sea,17 which envisages cooperation amongst States bordering enclosed or semi-enclosed seas, a definition that arguably includes the Arctic Ocean. Indeed, Pharand saw the formation of the Arctic Region Council as a concrete way for member States to discharge their obligation to coordinate activities relating to the living resources of the sea, the marine environment and marine scientific research.18 The founding members were to include the eight Arctic States and indigenous peoples’ organizations, but membership was left open to other States, organizations (governmental or nongovernmental), territorial and/or regional bodies that (1) demonstrated a substantial interest in the work of the Council and (2) had a capacity to further the purposes of the Council. Outside of the eight founding member States, whose territory projected “north of the Arctic circle”19 and were afforded special interests and responsibilities, no hierarchy was established between the other members of the Council. Such an open membership was designed to avoid the pitfalls of narrow agreements and exclusive membership that fostered suspicion and competition rather than cooperation. 15 Id., at 187. 16 Id., at 191. 17 U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397. 18 Pharand, supra note 1, at 189. 19 Id., at 192.

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Like many international organizations, the Arctic Region Council would consist of an Assembly (a forum for discussion), a Commission (the governing body) and a Secretariat to assist with administration. The Assembly would include of all of the members, which meant potentially it could be a large forum. Its primary function would be to discuss all questions relating to the purposes of the Council. Reaching consensus was to be encouraged, but was not necessary; a two-thirds majority vote was deemed acceptable with all members having one vote. To ensure efficient and speedy decision-making, the Commission was envisaged as a smaller body including the eight Arctic States and four nonpermanent members elected from the Assembly for terms of four years with equitable representation as the guiding principle. The Commission was afforded considerable powers to determine and adopt measures aimed at fulfilling the purposes of the Council. As with the Assembly, consensus was ­preferred but not required; as long as a two-thirds majority was met, a decision could be taken. A Secretary would be selected by the Assembly based on the recommendation of the Commission, and his or her staff would provide administrative ­support to the Council. The location of the Secretariat would circulate among the eight founding member States. Meetings of the Assembly and of the Commission were projected to be held at least every other year. Special meetings could be held as required by the Assembly or Commission. The regular meetings were to be held in the Arctic region and under the auspices of one of the founding member States. To resolve disputes, Pharand favored a version of article 33 of the Charter of the United Nations.20 He proposed as follows: “Any dispute as to the interpretation or application of this Treaty shall be resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means to which the parties to the dispute agree.”21 The Treaty would enter into force upon signature (or ratification if required) by all of the eight founding Arctic States. Unlike many organizations where the founding instrument calls for a review within the first few years of existence, Pharand called for a review of the Treaty after twenty-five years using the Antarctic Treaty as a guide.22 No doubt Pharand concluded that as it would take years for environmental and 20 Charter of the United Nations, 24 October 1945, 1 U.N.T.S. xvi. 21 Pharand, supra note 1, at 194. 22 Antarctic Treaty, 1 December 1959, 402 U.N.T.S. 71, art. XII: 2a, called for review after 30 years.

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cooperation gains to be made after decades of negligence, a review after a short span would serve little purpose. The treaty outlined by Pharand reads like a model from an international law textbook. All of the traditional features are present, but the wording is not so prescriptive as to limit the involvement of alternative bodies or the consideration of innovative ideas. However, Pharand identified three fundamental issues which, in his opinion, should not be tampered with: the definition of the Arctic region; the establishment of the Council by way of a treaty; and the separation of powers between the organs of the Council. The structure of Pharand’s proposed Council is starkly different from the Arctic Council, though they share many parallels in their objectives and goals.

The Arctic Council

At first blush, the Arctic Council seems a forum divorced from Pharand’s Arctic Region Council. It was created by a declaration that neither gives a clear definition of the Arctic Region nor sets up distinct organs with specific powers and it makes no mention of dispute resolution. The Arctic Council does, however, devote considerable time and energy to its rules of procedure, the issue of membership and its two main objectives: sustainable development and environmental protection.23 These two objectives are similar to the goals and purposes of Pharand’s Arctic Region Council, and it is arguably that in these spheres the current Arctic Council has achieved its greatest, albeit still modest, achievements. In proposing the creation of an Arctic Regional Council, Pharand argued that to do so on the basis of a declaration would be to found the organization on an instrument of questionable legal permanency.24 However, by 1996 – four years after the publication of Pharand’s draft Treaty – much had happened to solidify the cooperation efforts among the eight Arctic States: the AEPS had modest successes with its Joint Action Plan,25 the Northern Forum was bringing Arctic infrastructure concerns to the attention of domestic governments and there had been four more years of relaxed tensions after the abrupt end of the Cold War. A treaty, therefore, was not as urgently required to ensure cooperation – it was happening in practice. 23

Ottawa Declaration, supra note 2, art. 1a. The arctic is not defined in the Declaration. It is assumed that the Arctic is the area utilized by the Arctic Monitoring and Assessment Program Working Group. 24 Pharand, supra note 1, at 186–187. 25 “Arctic Environmental Protection Strategy,” supra note 5.

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The Arctic Council is not the international governance organization envisaged by Pharand. Although listed in the Yearbook of International Organizations for 2012–201326 as a “limited or regionally-defined” organization with intergovernmental and international organizations as members, it lacks the ability to make binding decisions. Furthermore, there are no organs – the work of the Council is done through six working groups,27 ad hoc expert groups and various task forces – and decisions are made by consensus with no binding effect on members. While the Arctic Council now has a permanent secretariat, its mandate and function are modest, essentially secretarial in nature. Despite the “soft” legal status of the Arctic Council, its twin purposes – to promote cooperation on issues of sustainable development and environmental protection in the Arctic – mirrors the six areas of cooperation outlined by Pharand divided into these two broader categories of issues. Furthermore, the focus of the Arctic Council on scientific research and indigenous peoples’ input into the study of these issues closely matches the areas of cooperation proposed for the Arctic Region Council. The Arctic Council is made up of three distinct groups: Arctic States,28 indigenous peoples’ groups29 and interested parties30 referred to as the Mem­ bers, Permanent Participants and Observers respectively. Those with voting privileges, the ability to determine policy and the power to make projectrelated decisions, are the eight Arctic Member States – all of which were members of the AEPS. The indigenous peoples’ groups have the status of “Permanent Participants,” a role more significant than is typically afforded them at United 26

27

28 29

30

The Union of International Associations, Yearbook of International Organizations 2012– 2013: A Guide to Civil Society Networks (Brussels: Brill, 2013), online version available at http://www.uia.org/yearbook. The Arctic Council is classified as a Type I (level of ‘internationality’) (code D) and Type II (type of organization) (code gy). The six working groups are as follows: (1) Arctic Contaminants Action Program (ACAP); (2) Arctic Monitoring and Assessment Programme (AMAP); (3) Conservation of Arctic Flora and Fauna (CAFF); (4) Emergency Prevention, Preparedness and Response Working Group; (5) Protection of the Arctic Marine Environment (PAME); and (6) Sustainable Development Working Group (SDWG). The eight Arctic States are Canada, Denmark (Greenland and Faroe Islands), Finland, Iceland, Norway, Russia, Sweden, and the United States. The six permanent participants are the (1) Aleut International Association (AIA), (2) Arctic Athabaskan Council (AAC), (3) Gwich’in Council International (GCI), (4) Inuit Circumpolar Council (ICC), (5) Saami Council, and (6) Russian Arctic Indigenous Peoples of the North (RAIPON). There are three categories of Observers: non-Arctic States, nongovernmental organizations, and intergovernmental/inter-parliamentary organizations.

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Nations and other multilateral-type meetings/conferences. Their status as Permanent Participants is meant to ensure their full consultation prior to the forming of decisions. In his vision for the Arctic Regional Council, Pharand also conferred a special status upon indigenous peoples’ groups and he was clear that they should be admitted as full members. Arctic Member States and Permanent Participants may participate in all the meetings and activities of the Arctic Council; Observers can participate and make statements at meetings “at the discretion of the Chair.”31 While Pharand had not drafted rules of procedures for the Arctic Region Council, these limitations on participation are at odds with his idea of an Assembly that consisted of all of the members of the Arctic Region Council regardless of membership ‘category’. There is one issue of importance identified by Pharand that the Arctic Council has thus far chosen to omit from its work. The Ottawa Declaration establishing the Arctic Council specifically states that the Council “should not deal with matters related to military security.”32 This must have been a disappointment to Pharand who believed that issues of security should be addressed and saw the Arctic Region Council as a means to further the spirit of cooperation, especially between the two former superpowers, that had emerged in the immediate post-Cold War years. This would likely have involved a ban on nuclear weapons in a defined zone, as well as the establishment of a system of verification and control for all of the circumpolar States (especially those with nuclear weapons).33 Pharand was right to be concerned about the window of opportunity to discuss the demilitarization of the Arctic; in the current geopolitical context, especially post 9/11, the United States and Russia show no appetite to discuss such sensitive security matters. There are indications that certain security issues may be creeping onto the agenda of the Arctic Council. The recently completed Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic (the SAR Agreement)34 was negotiated by the eight Arctic States under the auspices of the Arctic Council. The Agreement requires the States to (1) share information about their search and rescue capabilities including where their assets are positioned, (2) evaluate whether they are in a position to render assistance when requested by another party and (3) promote the conduct of joint exercises to improve/establish interoperability 31

Arctic Council, Rules of Procedure, adopted 17–18 September 1998, articles 36–38, available on the website of the Arctic Council, supra note 5. 32 Ottawa Declaration, supra note 2, footnote to article 1a. 33 Pharand, supra note 1, at 184. 34 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011, reprinted in 50 I.L.M. (2011): 1119.

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between different military and civilian search and rescue agencies. While far from achieving the demilitarization of the Arctic, the SAR Agreement does encourage mutual concern and cooperation focused on aid to individuals rather than the securitization of States. Though less robust than the Arctic Regional Council envisaged by Pharand, the Arctic Council has achieved modest successes. Its main outputs include scientific assessments, policy statements, guidelines, recommendations, best practices, and indirectly, new instruments.35 Its many scientific reports and studies are widely read and respected. For example, the 2004 Arctic Climate Impact Assessment36 and the 2009 Arctic Marine Shipping Assessment37 have been important milestones and calls for action. On 15 May 2013, the Arctic Council admitted six new non-Arctic States as Observers: China, Japan, India, South Korea, Singapore and Italy. The inclusion of these States increases the number of non-Arctic State Observers to 12 and the total number of Observers to 32.38 The fact that Member States and Permanent Participants only number 14 is problematic. Unlike Pharand’s Arctic Region Council, which would have given the eight Arctic States and at least some of the Permanent Participants a special role in decision-making as members of the Commission, the eight Member States of the Arctic Council have a vote, but the Permanent Participants are dependent upon those eight States continuing to solicit their opinion. The question also remains whether the 32 Observers will continue to accept such a loose decision-making arrangement. At least with Pharand’s Commission, the Observers would have had an opportunity to run for election on the Commission. Of course, the real threat is to the Permanent Participants who are most likely to lose their voice in the cacophony of opinions and interests. As the Arctic Council grows in size and expands in scope in terms of areas of concern, there is no guarantee that its current structure and mode of operation will enable it to continue to function effectively. Logistically, holding meetings in Arctic hamlets, as has been done in the past, will become more complicated. Increased participation may also compromise the ability of the Arctic Council to arrive at decisions via consensus. Also, there is a sense that 35 36 37 38

Arctic Council, “Senior Arctic Officials’ Report May 2011,” at 49, available on the website of the Arctic Council, supra note 5. Arctic Council, Arctic Climate Impact Assessment, Overview Report (October 2004). Arctic Council, Arctic Marine Shipping Assessment 2009 Report (April 2009). There are now 12 non-Arctic countries, 9 intergovernmental organizations and 11 nongovernmental organizations as Observers. Seven other organizations are actively seeking Observer status. The list of Observers is available on the website of the Arctic Council, supra note 5.

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the “low-hanging fruit” issues (i.e., problems that were easily identified and handled with minimal commitment from the Member States) have been dealt with. There is no guarantee that the Arctic Council can or will tackle the more contentious issues that require serious compromises and/or State resources. In other words, the Arctic Council can gather information and reach consensus on status quo issues, but it cannot govern. Its functions and powers are not robust enough to manage potentially discordant interests of powerful nonArctic States with those of the Arctic States and, especially, the Permanent Participants. However, unlike Pharand’s Arctic Region Council, the Arctic Council never had a governance mandate nor does there seem to be an appetite for such a role among the eight Arctic States. Conclusion Pharand’s contribution to the advancement of international law and the law of the sea is undeniable. What is less well-known is his contribution to the idea of an Arctic Region Council and his prodding of the Canadian government to take a leadership role in expanding the scope of multilateral cooperation on Arctic issues. Pharand’s detailed treatment of the challenges facing the Arctic was prescient of the difficulties currently facing the Arctic and his call for immediate action has proven well founded. Most importantly, rather than considering only issues of relevance to States, Pharand was attuned to the pressing and legitimate concerns of indigenous peoples and gave them a voice in his Treaty. Although Pharand’s Arctic Region Council never came to fruition, the Arctic Council has borrowed significantly from its goals and objectives. Sustainable development and environmental protection remain the twin ambitions of the Arctic Council, and modest advancements have been made. Pharand’s proposal may still have influence on the work of the Arctic Council, which recently adopted an ambitious program for the future entitled “Vision for the Arctic,” to mark eighteen years of history.39 It emphasizes the Arctic as a zone of peace and stability and as a prosperous and safe home. It also stresses the importance of fostering a deeper knowledge of the Arctic and supporting a strong Arctic Council for the promotion of a healthy environment.40 Pharand would no doubt applaud these lofty goals but the challenge remains to transform them from ideals into reality. 39 40

Arctic Council Secretariat, “Vision for the Arctic,” Kiruna Sweden, 15 May 2013, available on the website of the Arctic Council, supra note 5. Id., 1–3.

chapter 4

Pharand’s Arctic Treaty

Would an Antarctic Treaty-Style Model Work in the Arctic? Julia Jabour*



Introduction and Background

In a 1992 article, Donat Pharand proposed a treaty for the Arctic as tangible evidence of good faith by the Arctic States in their obligations towards each other.1 Pharand was concerned about the legal status of the ministerial decla­ ration that had just been made2 that commenced the process of Arctic regional cooperation and expressed a preference for a treaty as a more appropriate— and legally binding—instrument. The model he proposed was inspired by the 1959 Antarctic Treaty.3 Pharand perceived a need for pan-Arctic cooperation in the areas of the environment, scientific research, living resources, economic development, the health and well-being of the Arctic inhabitants, and the peaceful uses of the Arctic,4 but more than 20 years on there still is no Arctic treaty. Occasionally there is renewed enthusiasm for a multilateral legal approach,5 but on the whole, most Arctic commentators support Oran Young’s notion that there was no need then and there is no need now for a formal instrument.6 * Ocean and Antarctic Governance Research Program, Institute for Marine and Antarctic Studies, University of Tasmania, Hobart, Australia. 1 Donat Pharand, “The Case for an Arctic Region Council and a Treaty Proposal,” Revue générale de droit 23 (1992): 163–195. For more detail on the background to the proposal, see in this volume, Kristin Bartenstein, “The Arctic Region Council Revisited—Inspiring Future Deve­ lopment of the Arctic Council” and Andrea Charron, “Lessons Learned and Lost from Pharand’s Arctic Region Council Treaty Proposal.” 2 “Arctic Environment Protection Strategy” and Ministerial Declaration, 14 June 1991, reprinted in 30 I.L.M. (1991): 1624. 3 Antarctic Treaty, 1 December 1959, 402 U.N.T.S. 71. 4 Pharand, supra note 1, at 165. 5 Melissa Verhaag, “It is Not Too Late: The Need for a Comprehensive International Treaty to Protect the Arctic Environment,” Georgetown International Environmental Law Review 15 (2003): 555–579. 6 Oran Young, “Arctic Tipping Points: Governance in Turbulent Times,” AMBIO 41 (2012): 75–84, 82.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004284593_005

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Nevertheless, the 55-year-old Antarctic Treaty might provide some valuable lessons or assistance in shaping thinking about Arctic governance. The main activities receiving attention in the changing Arctic are related to commercial shipping, oil and gas exploration and exploitation, fishing and ship-based tourism—(in other words) marine matters. The Antarctic Treaty Consultative Parties have significant experience with these matters. Fishing is regulated under an Antarctic-specific legal instrument7 as is tourism,8 though to a lesser degree as the day-to-day management of Antarctic tourism comes under the ambit of the International Association of Antarctica Tour Operators and the flag States of ships and aircraft. The Antarctic Treaty Consultative Parties nego­ tiated a convention on minerals activity that lapsed.9 There is now a prohibi­ tion on mining.10 Finally, the Antarctic Treaty Consultative Parties are keen participants in the initiative within the International Maritime Organization regarding safe shipping in polar waters. Reviewing the value of an Antarctic Treaty-style regime for the Arctic is not an outrageous thought, especially as many Arctic States are also participants in the Antarctic Treaty System. This contribution is a retrospective on the success of the Antarctic Treaty that Pharand so clearly admired. It examines the features within the Treaty that have contributed to its success—evidenced by its longevity and the regime of laws, policies and ethics that govern all human activity in Antarctica today (collec­ tively known as the Antarctic Treaty System). The challenge is to consider how these same features might be helpful in the Arctic, specifically in the marine con­ text, since the discourse is situated within what Young calls a shift in “the center of gravity for the Arctic policy agenda.”11 This contribution builds on an almost identical endeavor by Rothwell in 199412 writing at an important time in the development of a pan-Arctic regime by States that were divesting themselves of the cloak of the Cold War and becoming more regionally focused. This contribu­ tion differs in that it has the benefit and perspective of two further decades of

7 8 9 10 11 12

Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), 20 May 1980, reprinted in 19 I.L.M. (1980): 841. Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), 14 October 1991, reprinted in 30 I.L.M. (1991): 1461. Convention on the Regulation of Antarctic Mineral Resource Activities, 25 November 1988, reprinted in 27 I.L.M. (1988): 868. Madrid Protocol, supra note 8, article 7 read in conjunction with article 25. Oran Young, “Arctic Politics in an Era of Global Change,” The Brown Journal of World Affairs XIX (2012): 165–178, 167. Donald R. Rothwell, “Polar Lessons for an Arctic Legal Regime,” Cooperation and Conflict 29 (1994): 55–76.

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history and more certain knowledge that the ice is melting and bringing with it a flood of new opportunities in the Arctic.

The Antarctic Treaty

The polar regions are connected through their role in the global climate and an overarching concern for their environment because of consequent global impacts. They are also both high-latitude, low-population-density, peripheral geopolitical areas. But the nature of State relations in the two areas is diametri­ cally opposed. The Arctic is the province of the eight sovereign States with shared concerns about landscape, people, development and the future. The Antarctic is in the custody of 50 States that are party to the Antarctic Treaty, with a decision-making coalition constituted from the 29 parties most inter­ ested and active in Antarctic scientific research.13 Understanding how the lat­ ter disparate group of States manages activities in the polar south and the nature of the glue that binds them together is important in determining whether such a regime might work in the north. The Antarctic Treaty is first and foremost a peace treaty. Following the fifti­ eth anniversary in 2009 of the adoption of the Treaty, commentators around the world (this author included) celebrated its success and predicted its lon­ gevity.14 The Treaty entered into force in 1961 and the 12 original signatories included seven countries that claim Antarctic territory (Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom); two that had not formally made claims but retained the discretion to do so in the future (the former Soviet Union, now the Russian Federation, and the United States); and three others with a history in Antarctic discovery and exploration (Belgium, Japan and South Africa). By 2014 the number of States parties had risen to 50. Formal Antarctic Treaty Consultative Meetings (ATCMs) are convened each year and in the interim a permanent Secretariat, based in Buenos Aires, acts as a document clearing house and information portal for the parties and the pub­ lic. Much of the intersessional time is spent conducting business through ad hoc contact groups, increasingly using electronic media. Four official lan­ guages, English, French, Russian and Spanish, serve the parties’ communica­ tion needs. 13 14

Antarctic Treaty Secretariat, “Parties,” available on the ATS website at http://www.ats.aq. Paul Arthur Berkman, Michael Lang, David Walton and Oran Young (eds.), Science Diplomacy: Antarctica, Science, and the Governance of International Spaces (Washington: Smithsonian Institution Scholarly Press, 2011).

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Under the elegantly simple rules of the Treaty, States that are members of the United Nations are free to accede.15 Once they do, they are bound by a code of behavior premised on good faith and requiring that Antarctica shall never become the “scene or object of international discord.”16 The Treaty solved the problems arising out of conflicting territorial claims by not solving them per se,17 but rather by acknowledging all positions—those of claimant, nonclaimant and later, acceding States—without prejudice and for an indefinite period.18 A number of Antarctic-specific legal instruments flowing from the original Treaty have been adopted. They include conventions on the conservation of seals,19 marine living resources more broadly,20 and the environment.21 The flexibility and adaptability of the Treaty parties came to the fore when a convention they had adopted permitting mining under strict environmental conditions22 was subsequently nullified and replaced by an environmental protocol and a mining ban.23 All activities in Antarctica are now conducted with a view to achieving environmental best practices. Given the inherent vulnerabilities of international politics, it is curious that such a long period of harmony has existed in Antarctica. Part of the explana­ tion might be that in the late 1950s, the United States and the former Soviet Union were central players in the Antarctic. It was partly as a result of their Cold War relationship that the Antarctic Treaty was adopted and contains, as it does, a set of rules that brook no compromise. The first of these rules concerns the objective of article IV of the Treaty to protect, without prejudice, the positions of all parties. Claims to territory existed in fact and in law prior to the 1959 accord.24 But so too did potential claims from both the United States and the former Soviet Union. Considering that Washington was hosting the treaty negotiations (60 preparatory meetings 15 16 17

Antarctic Treaty, supra note 3, article XIII. Id., Preamble, paragraph 1. For a pre-Treaty examination of the claims to Antarctic territory, see Eric Hunter-Christie, The Antarctic Problem: An Historical and Political Study (London: Allen & Unwin, 1951) and for post-Treaty see Peter Beck, The International Politics of Antarctica (London: Croom Helm, 1986). 18 Antarctic Treaty, supra note 3, article IV. 19 Convention for the Conservation of Antarctic Seals, 1 June 1972, 1080 U.N.T.S. 175. 20 CCAMLR, supra note 7. 21 Madrid Protocol, supra note 8. 22 Antarctic Mineral Resources Convention, supra note 9. 23 Madrid Protocol, supra note 8, article 7 read in conjunction with article 25. 24 Hunter-Christie, supra note 17 and Beck, supra note 17.

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in total over an 18 month period), it is not surprising that article IV included such visionary accommodations as the right to maintain extant claims, but also the right to make a claim in the future. Article IV is a clever piece of draft­ ing because no matter what any State’s position was or is, nothing will preju­ dice their entitlements during the life of the Treaty. This permits claimants to exercise limited sovereign powers on the understanding that no other State need recognize those powers or be bound by them. Article IV permits Australia, for example, to proclaim an exclusive economic zone (EEZ) adjacent to its Australian Antarctic Territory without bringing the house down, although it did receive a note verbale from the United States reiterating its longstanding policy not to recognize the Australian Antarctic Territory.25 A number of diplo­ matic notes were received in 2004 when Australia sent its coordinates for the outer limits of the continental shelf adjacent to the Australian Antarctic Territory to the U.N. Commission on the Limits of the Continental Shelf, even though it asked the Commission not to consider any Antarctic-related infor­ mation for the time being.26 This strategy of isolating Antarctic data was a move ‘appreciated’ by the United States, whose note verbale read, in part: recalling Article IV of the Antarctic Treaty, the United States does not recognize any state’s claim to territory in Antarctica and consequently does not recognize any state’s rights over the seabed and subsoil of the submarine areas beyond and adjacent to the continent of Antarctica.27 Article IV clearly enables this divergence of opinion. Furthermore, it ensures that nothing any party does during the life of the Treaty will amend, support or deny the claimant or reserved positions as they were in 1959. As a result, the U.S. note verbale has no impact on Australia’s extended continental shelf delimitation. The core of article IV is respect for the sovereign independence of each party. This ensures a non-threatening environment in which parties make decisions about Antarctica’s future. This allows States that are economically interdepen­ dent to act independently at the Antarctic table, and feuding States to be aligned 25

26

27

Embassy of the United States of America, Canberra, Note No. 025 dated 31 March 1995, cited in Julia Green, “Antarctic EEZ Baselines: An Alternative Formula,” International Journal of Marine and Coastal Law 11 (1996): 333–350, at note 26, 341. The United States, Russian Federation, Japan, France, The Netherlands, Germany and India sent notes verbale to the U.N. Commission on the Limits of the Continental Shelf. See the Australian submission and the notes verbale on the website of the Commission on the Limits of the Continental Shelf at http://www.un.org/Depts/los/clcs. Id.

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on important Antarctic matters, even given their proclivities towards posturing and flag waving in other forums. In Antarctic forums, avoiding confrontation of any kind is the raison d’être of the entire system. This accommodation— or agreement to disagree on significant matters such as sovereignty and jurisdiction—has helped to earn the Antarctic Treaty the tag of a peace treaty. The second fundamental rule within the Treaty is the freedom of scientific research. The Treaty not only encourages scientific research but also permits any party to establish research bases anywhere in the Antarctic, including in the claimed territories of other countries. For example, the United States has bases scattered all over the continent: with Amundsen-Scott located at the geographic South Pole, where all claims with the exception of Norway’s con­ verge; McMurdo, located in New Zealand’s Ross Dependency; and Palmer, in the territory on the Antarctic Peninsula claimed simultaneously by Argentina, Chile and the United Kingdom. Russia too has bases scattered all around the coastline and one inland station, Vostok, established during the International Geophysical Year of 1957–1958, in the Australian Antarctic Territory. The third essential rule is the maintenance of harmony, which is achieved in a variety of ways. The governance of Antarctica rests on the coordinated (and sometimes choreographed) actions of the Consultative Parties through the mandate outlined in article IX, which virtually gives them carte blanche to take decisions about any topic back to their respective governments.28 The deci­ sions they make are by consensus, which is accepted as being “the absence of a formal objection.”29 If consensus is not reached, the Consultative Parties con­ tinue to negotiate. A distinction must be made between the different levels of participation (and hence influence) within ATCMs. The 12 original signatories automatically became the Consultative Parties empowered to make decisions; however an acceding State that conducts substantial scientific research can also apply to become a Consultative Party.30 Acceding States that do not wish to, or have no 28

29

30

Philippe Gautier, “The Exercise of Jurisdiction over Activities in Antarctica,” presentation at The Antarctic Legal Regime: Legal and Policy Challenges, Academic Workshop, Brussels, 25 May 2013. The comment in brackets is mine. This was defined in Antarctic Mineral Resources Convention, supra note 9, article 22 and even though the Convention did not enter into force, the definition is generally accepted as applying across the board in Antarctic decision-making forums. Jacquelyn Turner, Julia Jabour and Denzil Miller, “Consensus or Not Consensus: That is the CCAMLR Question,” in Ocean Yearbook 22, eds. A. Chircop, S. Coffen-Smout and M. McConnell (Leiden/ Boston: Brill, 2008): 117–158, at 132. Antarctic Treaty, supra note 3, article IX.2. Every State that has applied for Consultative Party status in the past has been accepted.

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capacity to conduct research, remain at the outer table. While the latter are permitted to submit information papers and participate in meetings, they do not form part of the consensus. In addition, the ATCM invites experts to attend and submit opinions either individually or through a sponsoring State. In this way, scientific interests (through the Scientific Committee on Antarctic Research) and others such as hydrographic, meteorological, tourist and various environmental organizations are all represented and, in many cases, are invited to or permitted to speak. Secondly, observation and inspection provisions in the Antarctic Treaty per­ mit any party to audit any other party’s facilities, ships and aircraft in Antarctica for compliance with Antarctic laws.31 The intention of the inspection regime was to check compliance with the demilitarization provisions. No breaches of either the demilitarization or non-nuclearization32 obligations have ever been detected. Today, inspections are environmentally focused, according to the val­ ues, procedures and requirements of article 14 of the Madrid Protocol. Even though this is largely symbolic, the right to inspect and the duty to permit inspections have a positive effect on behavior, and inspections are conducted in a collaborative fashion.33 For example, in 2013 a joint inspection team from Germany and South Africa inspected the Dronning Maud Land Air Network (DROMLAN), which flies an Ilyushin long-range cargo aircraft from Cape Town to the blue ice runways of Troll Station (Norway) and Novolazarevskaya (Russia). The team also visited four Antarctic bases: one British, one Norwegian, one Belgian and one Indian.34 Finally, harmony is maintained through having access to a dispute resolu­ tion procedure. Disputes are to be settled by States using peaceful means of their choice, however, if this does not provide a solution, recourse, as a matter of right, may be had to the International Court of Justice.35 The dispute resolu­ tion provisions have never been formally activated. To some extent, this is because parties sometimes act as proxies for other States in order to share 31 32 33

34

35

Id., article VII. While the testing of weapons and the dumping of waste are prohibited, the use of nuclear material, for example, for energy generation, is permitted. Julia Jabour, “The Utility of Official Antarctic Inspections: Symbolism without Sanction?” in Exploring Antarctic Values, eds. D. Liggett and A. Hemmings (Gateway Antarctica Special Publication Series), No. 1301 (2013): 90–106. Germany and South Africa, “Inspection by Germany and South Africa in accordance with Article VII of the Antarctic Treaty and Article 14 of the Protocol on Environmental Pro­ tection: January 2013,” Working Paper 4 to ATCM XXXVI, 2013, available on the ATS website, supra note 13. Antarctic Treaty, supra note 3, article XI.

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knowledge, experience and build capacity and thus influence new or recalci­ trant parties. This most often happens intersessionally, outside of the ATCMs. It is also because those potentially aggressive or destructive activities that originally prompted the development of the Treaty, such as military manoeu­ vers and suggestions that the Antarctic could be used for the testing of nuclear weapons and the dumping of radioactive waste, have eventually been prohibited.36 The Antarctic Treaty, for all the above, is not perfect. There are a number of anomalies that, while they might be vexing, do not necessarily need eliminat­ ing or fixing as a matter of urgency. Uncertainty over jurisdiction, inconsistent national approaches to Antarctic-related legislation and ideological inconsis­ tences are examples. Given that Antarctica belongs to no single State, jurisdictional competency is complicated. In the first instance, it is outlined to a limited extent in article VIII,37 but is generally assumed to rest with the flag State of ships and aircraft, and States with regard to their nationals wherever they are in the Antarctic. The onus is therefore on States parties to maintain control over their nationals and to have supporting domestic legislation through which to enforce their obligations. That States have different legislative processes, and these obliga­ tions are in any case minimum requirements only, helps to explain why incon­ sistencies occur. These inconsistencies between legislative approaches to Antarctic laws by the Antarctic States, for example in relation to the inclusion of meteorite collection as a minerals resource activity,38 are not necessarily problematic, and in any case the sovereign independence of each State pre­ cludes overt criticism of any perceived shortcomings. Forbearance for these anomalies within the system, appeals to strengthen collaboration and cooperation, and support for science and the common good help to maintain harmony within the Antarctic Treaty System. Dispute proce­ dures exist but are never used. More importantly, lines of communication are always open and it seems that no problem is insurmountable. The flexibility of the parties to absorb differences and respond to emerging needs is highlighted

36 37

38

Id., articles I and V. Id., article VIII.2 refers to jurisdiction over observers and scientific personnel and their staff, but leaves the question of jurisdiction over all other persons in Antarctica to be determined. C.J. Bastmeijer, The Antarctic Environmental Protocol and its Domestic Legal Implementation (The Hague: Kluwer Law International, 2002): 430–432, provides numerous examples of legislative anomalies.

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by the development of a legal regime derived from the original treaty and cov­ ering almost every eventuality in the Antarctic.

Antarctic Treaty System

It is not only the Antarctic Treaty itself which could be used as a model in the Arctic. Each of the subsequent legal instruments and the manner in which the parties’ approach varies on issues of concern are instructive. Convention for the Conservation of Antarctic Seals39 This Convention was established in 1972 when there was a renewed interest in commercial sealing in the Antarctic. It took six years to enter into force, which probably reflects the fact that the Antarctic Treaty Consultative Parties as a caucus believed that the regulation of commercial sealing was not at that time a matter of urgency. In 1972, there were 11 parties and by 2012 another five States had acceded to the Convention. Because the Seals Convention is a free-standing agreement, any State, irrespective of whether or not they are a party to the Antarctic Treaty can accede to it. At the 2012 ATCM, Spain, an Antarctic Treaty Consultative Party since 1988, somewhat surprisingly signaled its intention to accede, as did Pakistan, which had only acceded to the Antarctic Treaty a few months earlier. It is tempting to leave the Seals Convention out of the discussion about the Antarctic legal regime as commercial seal hunts are non-existent in Antarctica. However, challenges are bound to arise for the Treaty parties in the future should commercial sealing resume, not the least of which will be managing the polarized ideological positions on seal harvesting. There are also some legal inconsistencies that will have to be resolved. For example, the Seals Convention provides the framework for the regulation of, among other things, a commercial sealing operation (to be implemented by national regulation).40 The Madrid Protocol defers to rights and obligations under “other interna­ tional instruments in force within the Antarctic Treaty System,”41 which includes the Seals Convention. Furthermore, the Protocol invites parties to consult and cooperate with the parties to other instruments to ensure consis­ tency between the objectives of all the instruments.42 However, this may be 39 40 41 42

Antarctic Seals Convention, supra note 19. Id., article 2.2. Madrid Protocol, supra note 8, article 4. Id., article 5.

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difficult to achieve given that the Protocol only permits the taking or interfer­ ence with native mammals (including seals) under specific circumstances: (i) as specimens for study; (ii) as specimens for educational or cultural institu­ tions; and (iii) as the unavoidable consequence of other scientific activities or the construction and operation of scientific support facilities.43 The Protocol might, therefore, preclude commercial seal harvests. Until commercial sealing resumes, the parties need not address these anomalies, though they remain in the background.

Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)44 The second free-standing convention within the Antarctic Treaty System is CCAMLR, which was adopted in 1980 and entered in force in 1982. The Convention created a Commission whose Members are bound by the obligations contained within the Convention and any legally-binding con­ servation measures they adopt by consensus at their annual meetings. Membership is open to any State with harvesting or research interests respecting marine living resources in the area covered by the Convention. There are 25 CCAMLR Members, including the European Commission, that form the CCAMLR Commission. A total of 11 other States have acceded to the Convention but take no part in the Commission’s decision-making.45 These acceding States have sometimes assisted with the Commission’s efforts to regulate harvesting and maintain a chain of custody from the ocean to the plate. Under the CCAMLR, the Commission is required to identify conservation needs and analyse the effectiveness of its conservation measures in the setting and enforcement of catch limits for target species (e.g., Patagonian toothfish, krill); in mitigating incidental by-catch of species such as albatrosses and petrels; and more broadly, in the protection of the marine environment. The principal objective is the conservation of Antarctic marine living resources, recognizing however that conservation includes “rational use.”46 This philoso­ phy also informs the scientific principles upon which permitted harvesting is to be based. Most Member States of the Commission fish in the Southern Ocean and/or have a strong scientific research interest there, the latter being 43 Id., Annex II Conservation of Antarctic Fauna and Flora, article 3. 44 CCAMLR, supra note 7. 45 Commission for the Conservation of Antarctic Marine Living Resources, “Membership,” available on the Commission website at http://www.ccamlr.org. 46 CCAMLR, supra note 7, article II.

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an essential element in maintaining the ecosystem approach to conservation for which CCAMLR is well-known.47 A number of well-formulated strategies make possible the sustained con­ servation of marine organisms in the Antarctic. First and foremost, the Commission Members attempt to take full account of the recommendations and advice of the Scientific Committee, although consensus is sometimes reached through compromise.48 On the basis of scientific advice, Commission Members agree upon catch limits; designated regions and sub-regions for management and harvesting based on species population distribution; catch limits for specific regions and sub-regions; species requiring special protec­ tion; the age, size and sex of harvestable species; open and closed seasons; open and closed areas, regions and sub-regions for study or conservation pur­ poses; and effort, gear and methods of harvesting. In relation to the marine environment more broadly, the Commission receives data from fishers in order to pinpoint vulnerable marine ecosystems, areas such as the tops of sea mounts, hydrothermal vents, cold water corals and sponge beds, that can be perturbed by bottom fishing. The Commission has adopted a number of conservation measures that prohibit deep sea gillnet­ ting, restrict bottom trawling gear in the high seas, provide general regulations on bottom fishing and urge Members to notify the Scientific Committee of socalled vulnerable areas encountered during fishing. Notifications from fishers are submitted to scientific working groups for discussion, review, assessment and the updating of information on fishing impact. Decisions are then made at the Commission level. If the Commission has been criticized for its performance in any area, it has been by environmental nongovernmental organizations (NGOs) for its failure to take-up of the concept of marine protected areas (MPAs) in Antarctica. Implementation of this concept has been as slow in Antarctica as it has been elsewhere in the world. In general, acceptance of MPAs has not been forthcoming because of the problems associated with setting objec­ tives and applying a static boundary to a dynamic environment.49 In the 47

48 49

D.G. Webster, “International Fisheries: Assessing the Potential for Ecosystem Management,” Journal of Environmental Studies and Sciences 3 (2013): 169–183; Henrik Österblom and Örjan Bodin, “Global Cooperation Among Diverse Organizations to Reduce Illegal Fishing in the Southern Ocean,” Conservation Biology 26 (2012): 638–648; and A. Willock and M. Lack, Follow the Leader: Learning from Experience and Best Practice in Regional Fisheries Management Organisations (WWF International and TRAFFIC International, 2006). Turner et al., supra note 29. See: Nicholas Dulvy, “Super-sized MPAs and the Marginalization of Species Conservation,” Aquatic Conservation: Marine and Freshwater Ecosystems 23 (2013): 357–362 and Alexis

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CCAMLR context, the Scientific Committee has commented on the inherent difficulties of striking a balance between the protection of ecological func­ tions and allowance for, and impact on, harvesting in the possible imple­ mentation of MPAs in the Antarctic region. Nevertheless, the first high seas MPA was designated by the Commission for the South Orkney Islands south­ ern shelf in 2009.50 There followed in 2011 a conservation measure setting the MPA process in train that could result in the establishment of more MPAs in its area of application.51 It is noteworthy that Members’ commitment to the process progressed to justifying a special meeting of the Commission in July 2013 to further discuss MPA proposals that had been rejected at the 2012 Commission meeting.52 The special meeting failed to reach a consensus on the two proposals for very large MPAs in the Southern Ocean, with significant condemnation of the CCAMLR Commission by some environmental NGOs and its own Members.53 The two proposals were referred on to the ordinary Commission meeting later in 2013, where consensus failed for the third time. A total of 57 paragraphs of the (­preliminary) final report describe the widespread—but not universal—­ disappointment at the Commission’s failure.54 That the Commission has established the first high seas MPA and devel­ oped an MPA planning framework is acknowledgement that the Members recognize the need to adapt their thinking to changing circumstances, while continuing to use all of the existing tools to manage impacts on Southern Ocean ecosystems until such time as there is increased support for and con­ fidence in the MPA concept. This is not the first time the parties have dealt with an issue that has threatened to undermine the legitimacy of their stew­ ardship of the Antarctic.



50 51 52 53

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Rife, Brad Erisman, Alexandra Sanchez and Octavio Aburto-Oropeza, “When Good Intentions are Not Enough…Insights on Networks of ‘Paper Park’ Marine Protected Areas,” Conservation Letters 6 (2012): 200–212. CCAMLR Conservation Measure 91–03 Protection of the South Orkney Islands southern shelf, available on the Commission website, supra note 45. CCAMLR Conservation Measure 91–04 General Framework for the Establishment of CCAMLR Marine Protected Areas, id. CCAMLR Commission Final Report, CCAMLR XXXI 2012, id. Report of the Second Special Meeting of the Commission (CCAMLR-SM-II), Preliminary Report, adopted on Tuesday, 16 July 2013, dated 14 August 2013, id., especially para­ graphs 3.57 and 3.60. Report of the Thirty-Second Meeting of the Commission (CCAMLR-XXXII), Preliminary Report as adopted on 7 November 2013, id., especially paragraphs 7.1–7.57.

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Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol)55 The Madrid Protocol was adopted in 1991 and came into force in 1998. One requirement that delayed ratification was the prohibition on mineral resource activities that required national implementing legislation to bring the ban into force domestically. Notwithstanding some initial resistance, there is now a mining ban of indefinite duration which effectively extends from 60° South in the high seas and covers the entire Antarctic continent.56 The “comprehensive protection of the Antarctic environment and its depen­ dent and associated ecosystems” is the ambit of the Protocol.57 This is achieved through a series of foundational statements that are to be operationalized through a series of directions and actions in the six annexes.58 While most of the key terms are not defined and little guidance is given for their interpretation, the aim is clear: the comprehensive protection of Antarctica. Pursuant to the Madrid Protocol, all States active in Antarctic research are required to conduct environmental evaluations of their proposed activi­ ties pre-departure. Tourist and other non-governmental operators regis­ tered in or proceeding from the territory of parties to the Protocol must also conduct environmental evaluations of their activities. In some cases, such as in Australia, there is no separation of responsibility between the operator and the authorizing agency,59 therefore, States could be responsible for authorizing their own actions. This potential conflict of interest generally, but not always, results in parties being reasonable in how they treat the Antarctic landscape. The possibility of being inspected also helps to keep environmental responsibility in the minds of Antarctic operators, who inev­ itably have the safety of operations in this remote location as their foremost priority.

55 56 57

58

59

Madrid Protocol, supra note 8. Id., article 7, read in conjunction with article 25. Id., article 2. The term ‘dependent and associated ecosystem’ is neither defined nor is the area delimited within the Protocol, however it is generally applied to ecosystems north of 60° South. See: Bastmeijer, supra note 38, at 100. Id., Annex I Environmental Impact Assessment; Annex II Conservation of Antarctic Fauna and Flora; Annex III Waste Disposal and Waste Management; Annex IV Prevention of Marine Pollution; Annex V Area Protection and Management (all in force); and Annex VI Liability Arising from Environmental Emergencies (not yet in force). The Australian Antarctic Division is both the operator of the Australian Antarctic science program and responsible for Antarctic and sub-Antarctic environmental impact assess­ ment, approvals and permits on behalf of the Minister for the Environment.

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Whatever major activity a party undertakes in Antarctica bears the scrutiny of the other parties through the Committee for Environmental Protection (CEP) created by the Madrid Protocol.60 The CEP is composed of all the ratify­ ing contracting parties to the Protocol. The CEP has only an advisory function; it cannot prevent any activity from proceeding, irrespective of the potential for unacceptable environmental harm. Parties might be guided by the opinion of the CEP, but ultimately they remain free to determine for themselves what activities are acceptable. The criticism is that post hoc environmental evalua­ tions are, at best, “damage control.”61 The Madrid Protocol contains a dispute resolution mechanism that includes a Schedule on Arbitration.62 Disputes about the interpretation or application of the Protocol are to be resolved by the States by any peaceful means of their choice. If a dispute relates to mining, the annexes, compliance generally or emergency response action (articles 7, 8, 13 and 15 respectively), the parties may have recourse to either the International Court of Justice or an arbitral tribunal, if chosen, through a voluntary declaration from a party. However, as confirmed in articles 4 and 5 of the Protocol, the arbitral tribunal cannot settle any matter relating to article IV of the Antarctic Treaty (sovereign claims). To date no disputes have arisen that have necessitated activation of the formal settlement procedures. In addition to the ban on mining in the Madrid Protocol and the nuclear and military bans in the Antarctic Treaty, the first five annexes of the Madrid Protocol63 contain prohibitions on the introduction of dogs, live poultry or other living birds; the disposal of waste in ice-free areas or freshwater sys­ tems; the open burning of waste material; and the importation of polychlori­ nated biphenyls (PCBs), non-sterile soil, polystyrene beads, chips or similar forms of packaging, and pesticides. Noxious liquid substance discharge into the sea is also prohibited, along with the disposal of garbage including paper, rags, glass, metal, bottles, crockery, incineration ash, dunnage, lining and packing materials. Discharge of untreated sewage is not permitted within 12 nautical miles of land or ice shelves. Listed historic sites and monuments must not be damaged, removed or destroyed. However, the conduct of sci­ ence, the logistics to facilitate that research, non-governmental activity 60 61

Madrid Protocol, supra note 8, article 11. Kees Bastmeijer, “The Antarctic Treaty System: Human Use and Protection of Antarctica ‘in the interest of All Mankind’?” presentation at The Antarctic Legal Regime: Legal and Policy Challenges, Academic Workshop, Brussels, 25 May 2013. 62 Madrid Protocol, supra note 8, articles 18, 19 and 20. 63 See supra note 58.

Pharand’s Arctic Treaty

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including tourism and fishing, are all activities permitted under both the Madrid Protocol and CCAMLR. The nexus between the Madrid Protocol and other international legal instruments presents some interesting challenges for the parties. The Pro­ tocol expressly exempts CCAMLR Member-licensed fishing vessels from the requirement to conduct environmental evaluations of their transit passages and fishing activities.64 The area of application of the Protocol includes the water column, seabed and subsoil of the Southern Ocean south of 60° South and the dependent and associated ecosystems north of this latitude, and a total prohibition on mineral resource activities, including, one assumes, sea­ bed mining, is in place. Yet the United Nations Convention on the Law of the Sea (LOS Convention) provides, inter alia, a framework for seabed mining and establishes the International Seabed Authority (ISA) to regulate those activities.65 Because of the Protocol’s direct link to the Antarctic Treaty, pro­ tection of high seas rights found in the Treaty66 carries over to the Madrid Protocol, creating an overlap between the right to mine under the regime of the Area in Part XI of the LOS Convention and the prohibition on mining under article 7 of the Madrid Protocol. There are currently no known plans for seabed mining in areas adjacent to Antarctica, and, therefore, this is not a pressing issue. However, like other anomalies, it is a complication that may surface sometime in the future. The ISA may defer to the Madrid Protocol’s mining ban and thus reject any application that it might receive for seabed mining in the area covered by the Madrid Protocol, but this assessment has not been tested. Summary Taken as a whole, the Antarctic Treaty System provides a comprehensive model for how to manage activities in an area of international interest and importance. There are a number of essential rules within the Treaty, reinforced in subsequent legal instruments that have engendered behavior ensuring the Treaty’s longevity and success in maintaining peace in Antarctica. These include:

64

65 66

Madrid Protocol, supra note 8, article 8 and Annex I, but see Antarctic Treaty Secretariat, “Final Act of the Eleventh Antarctic Treaty Special Consultative Meeting,” available on the ATS website, supra note 13. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S., Part XI, “The Area.” Antarctic Treaty, supra note 3, article VI.

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• acknowledgement and respect for sovereign independence and tacit agree­ ment to suspend discussion about claims to territory; • the right to inspect and the duty to permit inspections of facilities, ships and aircraft in Antarctica; • ranking scientific research as the number one priority activity; • membership rules that require proof of commitment to Antarctic science before admission to the decision-making structures; • consensus decision-making, which encourages decisions that disenfran­ chise no one and promote compliance; and • dispute resolution procedures that encourage close contact to solve prob­ lems before arbitration may take place. The regime broadly would manage any new commercial seal harvest and does manage existing and new fisheries on an ecosystem and precautionary basis. It manages human activities in their broadest spectrum through the require­ ment to conduct pre-activity environmental evaluations. It is not perfect, but it has endured. The question is, could these features equally apply in the Arctic or assist in informing regional instruments in the Arctic? Discussion Table 1 sets out the main features of the Antarctic Treaty that are seen as hav­ ing made the most significant contributions to its enduring success and an assessment of the presence or absence of those same features in contemporary Arctic relations. The Antarctic Treaty Consultative Meeting and the Arctic Council Mini­ sterial Meetings work in very similar ways. Meetings are formal; decisions are made by consensus by those States most competent to do so;67 and a measure of transparency is achieved through the acceptance of observers, collabora­ tion with expert organizations and the public release of documents.Concern for the precarious state of the environment as a result of increasing tempera­ tures and the acidification of the oceans, for example, is common to both regions. Therefore, the need to make environmental decisions has become an 67

This does not acknowledge the role that the Permanent Participants have, or should have, in the Arctic Council. Ultimately it is States that will be required to adopt legal instru­ ments and bring them into force effectively through their own domestic legislation. Involvement by indigenous groups is not a consideration in Antarctica, though it is a con­ siderable concern in the Arctic.

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Pharand’s Arctic Treaty Table 1

An Antarctic/Arctic comparison

Feature

Antarctic

Arctic

Pan-region political treaty Pan-region meetings Pan-region binding decisions Pan-region inspections Pan-region scientific research Membership/participation rules Equality through official languages/interpretation Consensus decision-making Bifocalism through sovereign independence Dispute resolution provisions Permanent secretariat Collaboration with expert external organizations Public release of documents

      41      

      12      

1 Official languages are English, French, Spanish and Russian with simultaneous interpretation at ATCM, CEP and CCAMLR meetings. 2 Official language is English, with provision for Russian interpretation and ad hoc interpretation into other languages.

urgent priority in both regions. Yet the official statement adopted at the Arctic Council Ministerial Meeting in Kiruna in May 2013, “Vision for the Arctic,” placed peace, homeland values, prosperity and safety before the environ­ ment.68 The statement did stress that the need to achieve a healthy environ­ ment could be met provided the mandate of the Arctic Council was expanded from “policy-shaping to policy-making.”69 The formal signing of the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic is an illustration of a maturing of the Council.70 New Observers admitted in 2013 (China, India, Italy, Japan, Korea and Singapore) doubled at a single meeting in the Arctic Council’s 16-year history the number of Observer States.71 The application from the European Union 68 69 70 71

Arctic Council Secretariat, “Vision for the Arctic,” May 2013, available on the Arctic Council website at http://www.arctic-council.org. Id., at 3. Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, 15 May 2013, available on the Arctic Council website, supra note 68. Arctic Council Secretariat, “Observers,” id.

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was approved but held, pending further discussion about implementation. This prompted questions about whether there is a functional upper limit to the number of participants at an Arctic Council meeting. This same question has been raised periodically in relation to the ATCM. However, there are only eight decisionmakers in the Arctic Council and 29 in the ATCM. It is a sign of the times in the polar regions that countries without geographic proximity have an interest in what decisions are made and how decision-making occurs.72 Table  2 illustrates the level of investment in polar governance arrangements by not only, in the case of Antarctica, the claimant States, and in the Arctic, the littoral States, but also States with bi-polar interests and the European Union. Iceland is the odd-one-out. A number of elements are missing from the Arctic regime: a pan-Arctic treaty that binds the parties politically as well as legally; a compliance mecha­ nism such as the observation and inspection regimes under the Antarctic Treaty, the Madrid Protocol and CCAMLR; and dispute resolution procedures. Is the adoption of any or all of these features possible in the Arctic? While the environment and science unite the polar regions and attract interest from beyond the region, the existence of eight sovereign Arctic States, inhabitants (both indigenous and outsiders), and well-developed industries serve to sepa­ rate the north from the south (and even parts of the north from other parts of the north, according to Young73). The Antarctic Treaty parties have adopted new treaties to deal with emerging issues and problems. The two Arctic regional agreements, to collaborate in search and rescue and in marine pollu­ tion,74 are regional regimes designed to better implement existing global treaty obligations. However, there is nothing to stop the Arctic States from negotiat­ ing a regional treaty above and beyond what is already being achieved in the Arctic Council and other Arctic fora. It would take political will to negotiate such a treaty, but with the Antarctic Treaty System as a model, the Arctic States could achieve what has always been thought impossible—an Arctic Treaty. Conclusion The text of the original 1959 Antarctic Treaty has not been altered in its 55-year history. When a response to a problem, real or perceived, has been required, 72 Young, supra note 11, at 165. 73 Id., at 170–172. 74 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011, 50 I.L.M. (2011): 1119 and Oil Pollution Preparedness and Response Agreement, supra note 70.

Antarctic Treaty

                 

Brazil Canada China Denmark European Union Finland France Germany Iceland India Italy Japan Korea (Republic of) Netherlands Norway Poland Russian Federation Singapore                  

Treaty Consultative Party                  

Madrid Protocol

Polar States/organizations and their relationship to polar governance

States/Organizations

Table 2

                 

CCAS

                 

                 

                 

    ~ pending             

Arctic Arctic CCAMLR CCAMLR Commission Acceding State/ Council Council Observer Observer Member

Pharand’s Arctic Treaty

105

   

Spain Sweden United Kingdom United States    

Treaty Consultative Party

Source: Antarctic Treaty Secretariat/Arctic Council.

Antarctic Treaty

   

Madrid Protocol

   

CCAS

Polar States/organizations and their relationship to polar governance (cont.)

States/Organizations

Table 2

   

   

   

   

Arctic Arctic CCAMLR CCAMLR Commission Acceding State/ Council Council Observer Observer Member

106 Jabour

Pharand’s Arctic Treaty

107

the parties constructed new instruments. In this way, commercial sealing and fishing have been regulated, mining banned and the environment has taken precedence over science, as even scientists must complete environmental evaluations prior to undertaking their research. There has been no need to tamper with the 1959 Treaty because its structure, the behavior it permits for its parties, and the ideology it engenders, all work to keep it fresh and relevant. While there is much intellectual speculation about sovereignty, no overt dis­ cussion has been allowed to obscure the main purpose of the Treaty—uniting to preserve Antarctica for the common good. Symbolic though that image may be, it still holds true. Extraordinary changes have taken place in the five decades since the Antarctic Treaty was adopted. New players have entered the game and the membership represents countries as politically, ethnically, socially and economically diverse as they can be from each other. Some have great capacity to conduct globally significant scientific research, others will benefit from fish­ ing or tourism, and some will continue to pursue or challenge sovereign claims because they perceive a storehouse of untapped minerals riches on their radar. Notwithstanding, all have joined the team that is the self-appointed custodian of the Antarctic. Could an Antarctic Treaty-style agreement have worked in the Arctic? Pharand’s idea was a treaty as a constitution for an Arctic council. It seems that the progress of Arctic cooperation has not been inhibited by the lack of a polit­ ical treaty. Arctic regime building will continue and there will be growing expectations on the Arctic Council to fulfill what Pharand termed the seven purposes: cooperation, protection of the environment, coordination of scien­ tific research, conservation and management of living resources, sustainable economic development, furthering the health and social well-being of Arctic peoples, and promoting peace.75 To an outsider, these appear to have been largely fulfilled without a treaty, and Young has argued that the existing regime complex is preferable to a pan-Arctic treaty.76 The game changer, which has been evident for some time now, is that a rapidly warming and changing cli­ mate will alter Arctic ecosystems and impact on the people who rely on them, the industries that exploit them and the governments that are responsible for their protection and sustainability. This will sit alongside renewed interest from outsiders, keen to assess economic potential in the new Arctic. Perhaps a hitherto realistic threshold that has prevented serious consideration of a treaty has now been reached? 75 Pharand, supra note 1, Draft article 2. 76 Young, supra note 6, at 82.

Part 3 Arctic Shipping and Navigation

∵

chapter 5

Article 234 of the United Nations Convention on the Law of the Sea Its Origins and Its Future Armand de Mestral*

Environmental Protection in the Canadian Arctic and the Origins of Article 234

The origins of what became article 234 of the United Nations Convention on the Law of the Sea (LOS Convention)1 are to be found squarely in the growing awareness of the need to protect the fragile environment of the Arctic, which characterized public concern and government responses in Canada during the late 1960s and early 1970s. International awareness first manifested itself at the Stockholm Conference with the adoption of the Declaration on the Protection of the Environment of 1972.2 In Canada, public concern was triggered by the experimental voyage of the SS Manhattan in 1969. Funded by U.S. oil interests, the voyage of the Manhattan, a converted tanker, was designed to determine whether Alaskan crude oil could be transported through the Northwest Passage (NWP).3 Although the results of the voyage were commercially inconclusive, public opinion in Canada was aroused by the specter of international shipping utilizing the NWP. The Government of Canada came under great pressure to adopt a credible response to the twin concerns of potential resource exploitation by multinational companies and international navigation, both of which could put the fragile environment of the Arctic at risk. Coupled with this was the concern that the United States might press its position that the NWP constituted an international strait over which Canada could not exercise full regulatory authority. These three concerns— resource exploitation, international navigation and the fear that the United * Professor Emeritus, Jean Monnet Chair in the Law of International Economic Integration, Faculty of Law, McGill University, Montreal, Canada. 1 U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397. 2 Declaration of the United Nations Conference on the Human Environment, U.N. Doc. 4/ CONF/48/14/Rev. 1, 16 June 1972. 3 See generally: Donald R. Rothwell, The Polar Regions and the Development of International Law (Cambridge: Cambridge University Press, 1996), at pp. 192–193.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004284593_006

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States would press its claims to navigate freely in the NWP—dominated public debate in Canada at the time when the Third U.N. Conference on the Law of the Sea (UNCLOS III) got underway. The issues surrounding the emergence of article 234 were always both domestic and international. Domestic in the sense that Canadian public opinion was concerned by the perceived threats to the Arctic environment and to Canada’s sovereignty over its Arctic waters; international in the sense that it was impossible to develop effective policies without taking international opinion into account. In particular, maritime interests defended by major shipping nations were always present. Of special concern to Canada were the views of the United States and the Union of Soviet Socialist Republics (USSR). The United States, being the neighbor most immediately concerned by Canadian policies and having strong views on access to international straits around the world, was both a potential supporter and opponent. The USSR, having similar concerns, but also being an Arctic power and having a strong policy interest in the regulation of its northern waters, including the Northeast Passage, was potentially an ally in the development of a Canadian Arctic policy. The Government of Canada’s response to public concern (following the voyage of Manhattan) was the enactment of the Arctic Waters Pollution Prevention Act (AWPPA) in 1970.4 This legislation created a separate regulatory regime applicable to navigation by all ships in Canada’s Arctic waters. These were defined as all waters within 100 nautical miles (nm) of the coastline of Canada’s Arctic mainland and islands, thus encompassing all the waters between the islands and enabling Canada to assert regulatory control over the NWP.5 The unilateral adoption of environmental protection legislation coupled with enforcement authority in a 100 nm zone constituted a revolutionary step by Canada. The AWPPA authorized the adoption of regulations by Order-inCouncil setting special standards for the design, construction and equipment and manning of all ships entering Canada’s Arctic waters.6 Under the AWPPA, the Arctic waters were divided into nine zones where rules of increasing severity applied in order to guarantee the safety of shipping.7 To obtain the support of the international insurance market, the AWPPA Regulations were not issued until 1971. In the interim, diplomatic protests were received from many 4 Arctic Waters Pollution Prevention Act, R.S.C. 1985, c. A-12. 5 Id., at s. 2. 6 Id., at s. 3.1. Also see Arctic Shipping Pollution Prevention Regulations, Consolidated Regu­ lations of Canada, c. 353. 7 Id., Schedule VIII.

Article 234 of the United Nations Convention

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maritime powers,8 including the United States,9 asserting that international law did not permit Canada to take such unilateral measures and that the consent of all interested States was required. To avoid the possibility of being taken to the International Court of Justice by one of these protesting States, Canada withdrew its acceptance of the compulsory jurisdiction of the Court insofar as it related to the AWPPA.10 This reservation elicited criticism in Canada and abroad as being incompatible with Canada’s traditional position in favor of compulsory international adjudication, but it did serve to highlight the concern of many international fisheries and environmental legal experts who, while agreeing that the current state of international law did not justify the Canadian measures, insisted that international law should be changed to reflect the new imperatives of protection of coastal fisheries and the marine environment.11

8

9

10

11

Erik Wang, Legal Operations Division, Department of External Affairs, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on External Affairs and National Defence, 27 April 1978, at p. 16 referred having received “a drawer full of protests,” including one from the United Kingdom. The U.S. Department of State issued a statement saying that “[i]international law provides no basis for these proposed unilateral extensions of jurisdictions on the high seas, and the United States can neither accept nor acquiesce in the assertion of such jurisdiction.” For the full statement and Canada’s reply, see: “Department of State Statement on Government of Canada’s Bills on Limits of the Territorial Sea, Fisheries and Pollution,” 15 April 1970, (1970), 9 I.L.M. 605 and “Summary of Canadian Note, 16 April 1970,” 9 I.L.M. 607. “Canadian Declaration Concerning the Compulsory Jurisdiction of the International Court of Justice,” (1970) 9 I.L.M. 598–599 stated:  disputes arising out of or concerning jurisdiction or rights claimed or exercised by Canada in respect of the conservation, management or exploitation of the living resources of the sea, or in respect of the prevention or control of pollution or contamination of the marine environment in marine areas adjacent to the coast of Canada. The history of these difficult years and the impetus within Canada to develop fisheries and environmental protection in the law of the sea is discussed in Barbara Johnson, “Canadian Foreign Policy and Fisheries,” in Canadian Foreign Policy and the Law of the Sea, eds. Barbara Johnson and Mark W. Zacher (Vancouver: UBC Press, 1977), at 52. Also see the Canadian delegation’s introductory comments on this issue during the Third U.N. Conference on the Law of the Sea (UNCLOS III): “…the law of the future must be based on new and imaginative concepts, such as the economic zone, the patrimonial sea and the common heritage of mankind while at the same time retaining those principles which are still relevant in today’s world.” Third U.N. Conference of the Law of the Sea, Official Records, Vol. I, at 202.

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UNCLOS III and the Emergence of the Exclusive Economic Zone

The international law of the sea had been codified at the first U.N. law of the sea conference in 1958 in four conventions12 and issues relating to fisheries had been reconsidered at a second conference in 1960. However, neither conference addressed issues relating to the protection of the marine environment and, by 1970, changing shipping and communications technologies had revealed many other insufficiencies in the international law of the sea. The appeal by the delegate of Malta in 1967 for a review of the status of the deep seabed beyond national jurisdiction13 led to the convening of the Third UNCLOS in 1973. Apart from such major unresolved issues as the status of the deep seabed, the definition of the outer limits of the continental shelf, the rights of coastal States over fisheries and the right of passage through international straits, the preservation of the marine environment was seen by a number of States as a pressing issue where international law was in need of development. The Canadian delegation, along with several other delegations, supported the inclusion of all these issues on the agenda of the Conference. New issues such as expanded coastal State responsibility and jurisdiction for the protection of the marine environment were referred to the Third Committee of the Conference where a variety of proposals triggered a very spirited debate. Debate in the Second and Third Committees of the Conference on the limits of the continental shelf, environmental jurisdiction, marine scientific research, the limits of the territorial sea and contiguous zone, innocent passage and coastal State jurisdiction over fisheries coalesced in 1975 around the proposal of six coastal States, led by Kenya, for the constitution of an exclusive economic zone (EEZ) of 200 nm from the coast of all States.14 The concept of the EEZ was based on the idea of granting ‘sovereign rights’ and ‘jurisdiction’ to coastal States to regulate different aspects of these phenomena. It was a pragmatic functional compromise between those who sought a 200 nm territorial 12

13 14

Convention on the Territorial Sea and the Contiguous Zone, 10 September 1964, 516 U.N.T.S. 205; Convention on the High Seas, 30 September 1962, 450 U.N.T.S. 82; Con­ vention on Fishing and Conservation of the Living Resources of the High Seas, 20 March 1966, 559 U.N.T.S. 285; and Convention on the Continental Shelf, 10 June 1964, 499 U.N.T.S. 311. U.N. General Assembly, 22d Sess, 1515th Mtg, UN Doc A/C.1/PV.1515 (1967). The concept of the EEZ was put forward for the first time by Kenya to the Asian-African Legal Consultative Committee in 1971 and to the U.N. Sea Bed Committee the following year. Latin States also began developing a similar idea. By the start of UNCLOS III, the two approaches had merged into the EEZ concept. See: R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd edition (Manchester: Manchester University Press, 1999), at 160.

Article 234 of the United Nations Convention

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sea, based on full sovereign rights, and those who resisted any grant of authority to coastal States beyond a 3 nm territorial sea. The emergence of the EEZ concept had a profound influence on negotiations and from the start there was much that was appealing and little that could stop its broad acceptance. The EEZ concept, which resolved the desire of most coastal States for enhanced offshore authority, while still protecting the interests of high seas navigation, was seen by many, though not all States,15 as reflecting a fair balance of interests. Canada was quick to support it. However, a 200 nm EEZ did not protect Canada’s interests respecting continental shelf mineral rights or fisheries outside this zone. The other serious problem left unresolved was that the jurisdiction to protect the marine environment, generally accorded to coastal States under the emerging texts, fell far short of the kind of authority required to justify the AWPPA. The original proposals and the different formulations of the EEZ that emerged from negotiations, all subordinated coastal State jurisdiction to internationally agreed rules and standards and to the high seas freedom of navigation.16 Had these formulations been the end of the story, the AWPPA would have been difficult to justify within the international community. As the EEZ text evolved in 1976–1977, it was clear that the Canadian delegation had to do more to promote the acceptance of the AWPPA than simply endorse the EEZ concept with respect to marine environmental protection. A first approach was to promote the idea that there might be special areas within the EEZ of certain States warranting special measures of protection. This concept found favor with a number of States such as Australia, which was seeking to protect the fragile environment of the Great Barrier Reef, and gave rise to the inclusion in the LOS Convention of article 211. Unfortunately, it also became clear that the requirement for international acceptance of measures of protection within special areas in the EEZ, stipulated under article 211, as well as the limits placed on the exercise of port State jurisdiction to enforce international environmental standards, would not suffice to justify the much 15 16

A group of some 40 landlocked States have never fully reconciled themselves to the EEZ. For example, coastal States could make laws and regulations addressing innocent passage through the territorial sea, but only “in conformity with the provisions of the present Convention and other rules of international law.” These laws and regulations could pertain to a limited list of subjects, such as environmental protection and pollution. Laws and regulations pertaining to the design, construction, manning and equipment of a ship had to be in conformity with international rules. See: Third United Nations Conference on the Law of the Sea, Informal Single Negotiating Text (Part II), A/CONF.62/WP.8/Part II, 7 May 1975, Third U.N. Conference on the Law of the Sea, Official Records, Vol. IV, at 152. Roughly the same provision was adopted in the final text. See: LOS Convention, supra note 1, article 21(1).

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stronger national measures Canada had adopted under the AWPPA. Something more was required.

Canadian Strategy: Accept, Strengthen and Consolidate

As it became clear that Canada’s concern about its Arctic marine protection legislation was not going to be met by the emerging legal regime governing the EEZ, the Canadian delegation was obliged to develop alternative strategies.17 The need for an effective solution became all the more pressing when the coalition of coastal States around the world, which had been Canada’s key ally in developing extended functional jurisdiction beyond the territorial sea, signaled that while it remained sympathetic to Canada’s concerns, it would not go the extra mile with respect to the AWPPA. Many States began to suggest that Canadian positions on the AWPPA and certain other issues appeared greedy and even allies observed that Canada had done very well out of the negotiation and should stop pressing for additional authority over marine pollution. Respecting the Arctic, some States suggested following the model of the Antarctic Treaty,18 but it took little analysis to realise that this model, based on the freezing of national claims over Antarctic territory by international agreement, was quite unsuited to issues of marine pollution in the Arctic. In the decades leading up to UNCLOS III, important measures for environmental protection had been taken by the international community to protect the Antarctic environment. Moreover, efforts to protect the Antarctic marine environment had to be multilateral, as evidenced by the 1991 Protocol on Environmental Protection to the Antarctic Treaty,19 and could not be applied to the legal and political situation in the Arctic.

Concerns of the International Community Respecting Environmental Protection in the Arctic

In order for the Canadian delegation to develop a new strategy it was important to understand the concerns of the international community, which appeared 17

18 19

For an overview of Canadian strategy at UNCLOS III, see: Barry G. Buzan and Barbara Johnson, “Canada at the Third Law of the Sea Conference: Strategy, Tactics and Policy,” in Johnson and Zacher, supra note 11, at 255. Antarctic Treaty, 1 December 1959, 402 U.N.T.S. 71. Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, (1992), 30 I.L.M. 1455.

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to be increasingly opposed to Canada’s positions with even some coastal State allies falling away. The international community’s key concern was based on the nature of international law: what is permitted to one State, under normal circumstances, may be permitted to all. Thus, if the AWPPA were to be covered by the emerging LOS Convention it would have to be on a very strictly delimited basis. Despite the emerging regime of protection of the marine environment, Canada’s AWPPA measures ran up against a number of significant international rules governing the navigation of ships. In the territorial sea, as set out in the developing treaty text, ships enjoy the right of innocent passage,20 which among other things precludes the imposition of measures concerning the design, equipment and manning of ships, which are not based on internationally agreed standards. Secondly, in international straits, ships under customary international law21 enjoyed a non-suspendable right of innocent passage and, under the emerging law of the sea text, would soon enjoy an absolute right of ‘transit passage’.22 Finally, under the emerging EEZ text, ships would continue to enjoy “high seas” freedoms of navigation in the EEZ.23 It was clear that the only way to obtain justification for the AWPPA within the developing text would be to acquire the consent of the principal maritime powers. This appeared very unlikely based on the positions adopted by these States before and during UNCLOS III. The other equally unpalatable alternative would have been to place final decision-making power over ship-source pollution measures in the Arctic in the hands of the International Maritime Organization (IMO, then the Intergovernmental Maritime Consultative Organization (IMCO)). The IMCO had to that point served as the negotiating forum for a range of very valuable measures governing the design and management of ships,24 but the culture of the institution was based strictly on the promotion of maritime shipowners interests and had been resolutely hostile to the kind of measures in the AWPPA.

20 21 22 23 24

LOS Convention, supra note 1, article 17. Corfu Channel, [1949] I.C.J. Reports 244. LOS Convention, supra note 1, article 38. Id., article 58. For example, one of IMCO’s first tasks was updating the International Convention for the Safety of Life at Sea, see: International Maritime Organization, “The Origins of the Inter­ national Maritime Organization,” at http://www.imo.org/KnowledgeCentre/References AndArchives/Pages/TheOriginsOfIMO.aspx.

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Negotiating Article 234: The Role of the United States and the USSR

Canada was faced with the necessity of developing a negotiating strategy tailored to the special ecological conditions and legal circumstances of the Arctic. Many coastal State delegations sympathized with Canada’s position, but the interests of virtually all of them were met by the EEZ text. Even Australia ceased to be a strong supporter once its interests in protecting the Great Barrier Reef were covered by what became article 211 of the LOS Convention. It was clear that the alliance with other coastal States would not be sufficient to ensure the development of an acceptable text. Apart from Iceland and Norway, there was sympathy for Canada but little unqualified support in the face of the opposition of the maritime powers and the large group of landlocked States at the Conference. The one State whose interests came closest to those of Canada was the USSR. The USSR had taken the position that the Vilikitsky Strait was not an international strait and had also adopted a very effective and compulsory regulatory regime governing passage through that strait and through the entire length of the Northern Sea Route.25 In principle, the USSR would support stronger measures for ship-source environmental protection in the Arctic but as a major ship-owning power itself and as a State with a great interest in unimpeded passage through international straits, it was not willing to be seen as taking the lead on the matter. In the final analysis, the USSR as a superpower could get away with positions in the Arctic that might not be possible for Canada. But, if presented with a generally acceptable text, the USSR could be expected to give strong support. The key State, as is so often the case for Canada, was the United States. It was essential that Canada negotiate an arrangement with the United States before it could take up the matter with any other delegation. The United States was generally satisfied that the emerging EEZ text represented a fair balance of interests, which also reflected its own national interest. As the preeminent naval power, the United States sought to protect freedom of navigation around the globe for naval ships, and, as a major trading country, it had a profound interest in maintaining freedom of navigation of commercial shipping on the high seas, the EEZ, the territorial sea and especially through international straits. The United States thus began from a position that was not close to that of Canada. However, the United States was seriously committed to promoting the protection of the marine environment in the EEZ. It also had a long history 25

See: Erik Franckx, “The Legal Regime of Navigation in the Russian Arctic,” Journal of Transnational Law & Policy 18 (2009): 327.

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of listening with a sympathetic ear to Canadian concerns on environmental protection and Arctic sovereignty matters. Left unsaid, but assumed by the Canadian delegation to be true, was the sense that, in the view of the United States, the waters of the Canadian Arctic archipelago were safer in Canadian hands than if at the mercy of the general international community. For these reasons, the Canadian delegation felt it could expect a sympathetic hearing from representatives of the United States. However, it was also clear that there were major hurdles to overcome if a text acceptable to Canada and the United States was to be negotiated. Foremost among these obstacles was the passage of military vessels. It was also imperative to ensure that anything proposed by Canada did not affect the integrity of the emerging concept of transit passage through international straits. Finally, the general regime of international law developed at IMCO governing the design, equipment, construction and manning of ships should not be compromised. Ultimately, during the New York session of UNCLOS III in 1976 and in various bilateral meetings, members of the Canadian delegation, led by Ambassador Beesley, explored various options with representatives of the United States and the USSR. In this task, the Canadian delegation was fortunate to have Professor John Norton Moore26 of the United States and Mr. V.A. Romanov27 of the USSR delegations as interlocutors. Mr. Romanov was a difficult, cautious, but ultimately sympathetic observer who took no step without lengthy consultations with his authorities. Moore was always a forceful defender of U.S. interests, but was at all times a constructive critic of Canadian ideas. Moore played a key role and did much to ensure the eventual adoption of the ‘Arctic exception’ first by his own delegation and subsequently within the Conference. The text, which became article 234, was discussed at great length within the Canadian delegation and with Canada’s two principal partners in this negotiation, generally on a bilateral basis. Other sympathetic delegations were informed of the progress of the negotiations. Once both the delegations of the United States and the USSR had the approval of their governments the text of the ‘Arctic exception’ was put before the Conference.28

26 27 28

Walter L. Brown Professor of Law, Director of the Center for National Security Law and Director of the Center for Oceans Law and Policy at the University of Virginia. First Secretary with the USSR Ministry of Foreign Affairs. See Third United Nations Convention on the Law of the Sea, Revised Single Negotiating Text (Part III), A/CONF.62/WP.8/REV.1, 6 May 1976, Third U.N. Conference on the Law of the Sea, Official Records, Vol. V, at 173.

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Canadian Claims of Sovereignty over the Arctic

At UNCLOS III, Canada did not hide the fact of its historic claims to sovereignty over the waters of the Arctic archipelago. However, on a number of occasions, it also stated that it was not using the Conference or such concepts as the EEZ to advance its sovereignty claims. Quite the reverse, the Canadian delegation was at pains to show that, in supporting the EEZ concept to resolve fisheries, continental shelf and marine pollution issues generally, it was seeking to promote a regime of law based on ‘functional’ jurisdiction and not pure sovereignty.29 However, it would be disingenuous to suggest that the Canadian delegation was not concerned with ensuring that the new legal regime did not prejudice Canada’s historic claims. Indeed, soon after the conclusion of the UNCLOS III negotiations, Canada drew straight baselines around its Arctic archipelago based on its historic claims.30 Similarly, while Canada did not seek to use the emerging ‘archipelagic State’ concept to buttress its sovereignty claims, as the concept applied only to non-continental states, the Canadian delegation did not hide the fact that the Canadian Arctic archipelago, with its land to water ratio of 1:1, constituted the tightest major archipelago in the world.31 Thus, while the historic sovereignty claim was never pressed at the Conference it did serve to remind other States that Canada was not without other very serious arguments to support the adoption of the AWPPA, at least insofar as the waters between Canada’s Arctic archipelago were concerned.

Logic of the Text of Article 234

The text agreed upon between Canada, the United States and the USSR and adopted during the UNCLOS III is as follows:

29

30 31

Michael M’Gonigle and Mark W. Zacher, “The Control of Marine Pollution,” in Johnson and Zacher, supra note 11, at 119. Also see Canadian delegation comments, supra note 11 at 203. Territorial Sea Geographical Coordinates (Area 7) Order, Canada Gazette Part II, Vol. 119, SOR/85-872 (1985), 3996–4002. For example, during UNCLOS III, the Canadian delegation commented that it supported attempts to work out a compromise taking account of the “special position of archipelagos while at the same time recognizing the interests of all States in passage through archipelagic waters.” The delegation further noted that “Canada itself was an archipelagic State, and the Arctic archipelago was a classic example of a special area requiring special treatment.” Canadian delegation comments, supra note 1, at 98.

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SECTION 8. ICE-COVERED AREAS Article 234 Ice-Covered Areas Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence. The first point to notice is that the article is the sole element of a separate section, thus setting it apart from the other sections of Part XII of the LOS Convention and, in particular, the articles on transit passage through international straits. Thus, insofar as the straits regime might arguably be applicable to the NWP, it does not trump article 234. On the contrary, primacy goes to any measures adopted by Canada on the basis of article 234. The article is also explicit in stating that coastal States may adopt and enforce laws and regulations “for the prevention, reduction and control of marine pollution from vessels.” The only restriction is that this should be done on a non-discriminatory basis. Such laws may only be adopted in the face of “particularly severe climatic conditions” and “the presence of ice…for most of the year” where the two create obstructions and exceptional hazards to navigation, thereby threatening major harm or irreversible disturbance of the fragile ecology of the region. By way of balance, the article states that the laws shall have “due regard to navigation” and be based on scientific evidence. In the context of the rest of Part XII, as well as the chapters on navigation in the territorial sea and high seas freedoms in the EEZ, many of which are designed to restrict the kinds of measures that coastal States may impose upon foreign vessels, the words of article 234 are unprecedented and exceptional. They are classic lex specialis. They must be seen as allowing Canada and any other State in similar circumstances to take exceptional measures, which would not be justified in any other part of the globe. Given the special hazards of navigating in the Arctic and the exceptional risks to the marine

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environment that pollution from ships presents, the AWPPA and its Regulations are clearly supported by article 234.

Results of the Adoption of Article 234

Since the enactment of the AWPPA in 1970 and the proclamation of the AWPPA Regulations two years later, the international maritime community has respected the Canadian measures. Canada for its part has strengthened its regulatory regime governing navigation in waters covered by the AWPPA. In 2010, the Northern Canada Vessel Traffic Services Zone Regulations (NORDREG), first adopted in 1977 on a voluntary basis, were made compulsory for all ships over 500 tonnes.32 The provisions of the Regulations governing financial liability have been made more onerous33 and, in 2009, the AWPPA zone was extended from 100 to 200 nm.34 These recent measures elicited a limited number of protests from maritime powers,35 as did the publication of Canada’s straight baselines in 1985,36 but at no time before or after the enactment of the AWPPA have commercial ships entered the AWPPA zones in violation of Canadian law. Canada has also concluded a treaty with the United States that calls for advance notice of the passage of any U.S. Coast Guard vessels through Canada’s Arctic waters.37 This treaty does not represent a formal abandonment of the position of the United States concerning the status of the NWP,38 but it does reflect the desire of the two countries most directly affected to collaborate on such matters in a practical and functional manner. For its part, Canada has shown willingness to promote shipping in the Arctic by actively participating in negotiations respecting the Arctic Shipping (Polar) 32

Northern Canada Vessel Traffic Zone Regulations, Canada Gazette Part II, Vol. 144, No. 13, 23 June 2010. 33 AWPPA Regulations, supra note 6, s. 15. 34 AWPPA, supra 4, s. 2. 35 Canwest News Service, “U.S. concerned with new Canadian shipping rules in the Arctic,” Canwest News Service, 28 August 2008, at http://www.canada.com/topics/news/national/ story.html?id=ddf03f21-1628-4659-aeda-52dfe3635085. 36 For example, the European Community commented that they were not satisfied that the baselines were valid under international law and refused to acknowledge them. British High Commission, Note No. 90/86, 9 July 1986, reprinted in J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims (Leiden: Martinus Nijhoff Publishers, 2012), at 112. 37 Agreement between Canada and the United States on Arctic Cooperation, 11 January 1988, 1852 U.N.T.S. 59. 38 Id., article 4.

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Code at the IMO.39 This does not reflect any weakening of Canada’s legal position; an internationally agreed document covering all of Canada’s concerns can only strengthen the overall protection afforded the Arctic waters. It is anticipated that the Polar Code will have the advantage of creating a régime of law governing shipping throughout the Arctic region, as well as ensuring acceptance of Canadian measures. Perhaps most importantly, no ship will be able to sail in Arctic waters without meeting the conditions set by the inter­ national insurance market, which in fact are based on the AWPPA and its Regulations.40 In sum, the AWPPA has proven itself to be necessary in the circumstances of a changing Arctic and has been accepted by the international community, almost all of which have bound themselves legally to the LOS Convention and hence to article 234.

Problems with Article 234

Is everything legally settled by article 234? Unfortunately not. There are still some maritime powers, which, at least for the record, continue to object to Canadian unilateralism, or which take the view that article 234 still requires that any measures respecting ships must be internationally agreed.41 The greatest uncertainty surrounds the rights of military vessels, which continue to be almost entirely governed by customary international law. This reflects a general policy decision taken at UNCLOS III to preserve the freedom of navigation of military vessels throughout the oceans of the globe. Will Canada see friendly or hostile military ships insisting on a right of passage between the islands of the Canadian Arctic archipelago on the basis that they are immune from Canadian measures flowing from article 234? Time alone will tell, but the wisdom of those who issued the Baseline Orders in 1985 may be better understood in future years. It would have been preferable if article 234 had been prefaced by ‘notwithstanding anything in this Convention’, but the deliberate placement of the 39

40 41

The State parties to the IMO are developing an international code of safety for ships operating in polar waters. See: International Maritime Organization, “Shipping in polar waters,” at http://www.imo.org/MediaCentre/HotTopics/polar/Pages/default.aspx. Arctic Shipping Pollution Prevention Regulations, Consolidated Regulations of Canada, Chapter 353. For example, the United States expressed concern about Canada’s plan to impose mandatory reporting of foreign vessels pursuant to NORDREG stating that such measures had to be done through the IMO. “U.S. Concerned with new Canada Shipping rules,” supra note 35.

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article in a separate section has the same legal effect. A more serious defect in the eyes of some42 is the fact that the article does not explicitly specify that the measures envisaged can cover the ‘design, construction, equipment and manning’ of ships as does article 21 respecting innocent passage in the territorial sea. However, given that the type of measures enacted by Canada in the 1970s pursuant to the AWPPA and their international notoriety at the time article 234 was being negotiated and approved, this is not a strong argument. To suggest that ships could sail in the Arctic without special requirements governing their design, construction, equipment and manning is an absurdity, which the international insurance market would be the first to denounce. The effective management of Arctic navigation will remain a vital matter for Canada, as it is for Russia, for the indefinite future. Most troubling in the long term for Canada is the question of the hazards created by the presence of ice, or more particularly, the absence of ice. Should the ice disappear—something which is still a very long way off—there will doubtless be armchair experts who may suggest that the AWPPA is no longer required.43 Sufficient unto the day is the evil thereof. But, should dealing with such legal sceptics become unavoidable, port State jurisdiction will be a very effective alternative given that most navigation in the region is to ports in the Arctic. Should it be necessary to fall back on claims of sovereignty to justify the AWPPA, Canada has drawn its baselines to indicate Canada’s claim of historic title. Furthermore, even if the ice is eventually removed from the equation, there will remain the exceptionally fragile nature of the waters and ecology of the Arctic region and the interests of Canada’s Inuit population, which will continue to require exceptional measures of protection. In the final analysis, the reasons which gave rise to the AWPPA—unique hazards to navigation and exceptionally fragile ecological conditions—as well as the special circumstances of Canada’s indigenous Arctic peoples, will remain as far into the future as this generation can reasonably contemplate. For all these reasons, article 234 will remain vital for the protection of these interests. 42

43

See: D.M. McRae and D.J. Goundrey, “Environmental Jurisdiction in Arctic Waters: The Extent of Article 234,” 16 University of British Columbia Law Review 16 (1982): 197, at 218. Also see Donat Pharand, “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development and International Law 38 (2007): 3–39, at 47. It should be noted that ice-strengthened vessels are still required in the St. Lawrence River between January and April some 4,000 km south of Arctic waters.

chapter 6

A Note on Making the Polar Code Mandatory J. Ashley Roach* Introduction The International Maritime Organization (IMO) is the specialized agency of the United Nations system with responsibility for the safety and security of international shipping and the prevention of marine pollution from ships. It has met its responsibility through the adoption of technical regulations annexed to the 1974 International Convention for the Safety of Life at Sea (SOLAS)1 and the International Convention for the Prevention of Pollution from Ships (MARPOL).2 These conventions contain provisions enabling the rapid adoption of amendments to those annexes (known as the tacit acceptance procedure) that keep the regulations current and enable them to adapt to new circumstances, thereby enhancing the safety and security of commercial shipping and the prevention of marine pollution from commercial ships. The SOLAS and MARPOL Conventions are widely ratified, and cover more than 99% of the world’s merchant shipping tonnage.3 This contribution discusses the use of the tacit acceptance procedure to cope with the consequences of increased shipping in the Arctic and Antarctic Oceans. The reduction in size and scope of the Arctic ice cap in the latter part of the twentieth century led to increased ship traffic in and through Arctic waters. It also led to concern that there was insufficient guidance for ships operating in those waters. The United States participated actively in the development of, and supported, the 2002 IMO Guidelines for Ships Operating in Arctic * Captain, JAGC, USN (retired). This article was prepared in the author’s personal capacity. It updates the material on the Polar Code in J.A. Roach and R.W. Smith, Excessive Maritime Claims (3rd ed.) (Leiden/Boston: Nijhoff, 2012), section  17.2.8. The author expresses his appreciation for the valuable comments made by Greg O’Brien. Responsibility for any errors remain with the author. 1 International Convention for the Safety of Life at Sea, 1 November 1974, 1184 U.N.T.S. 2, as amended. 2 International Convention for the Prevention of Pollution from Ships (MARPOL), 2 November 1973 and 1978 Protocol of Amendment, 17 February 1978, 1226 U.N.T.S. 237, as amended. 3 International Maritime Organization (IMO), “Summary of Status of Conventions,” at http:// www.imo.org/About/Conventions/StatusOfConventions/Documents/Summary%20of%20 Status%20of%20Conventions.xls.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004284593_007

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Ice-Covered Waters.4 The Guidelines addressed construction, equipment, ship operation, and environmental protection and damage control. The increase in tourist shipping in Antarctic waters led to a similar effort to provide guidance to ships operating in the Southern Ocean. Ultimately, in 2009, the IMO Assembly adopted a revised version of the non-binding guidelines for application in Antarctic as well as Arctic waters, the Guidelines for Ships Operating in Polar Waters.5 On the initiative of Denmark, Norway and the United States, in 2009, the IMO’s Maritime Safety Committee (MSC) and Marine Environment Committee (MEPC) agreed to add to the agenda of the Sub-Committee on Ship Design and Equipment (DE), a new high-priority work program item on “Development of a mandatory Code for ships operating in polar waters,” with a target completion date of 2012.6 However, the complexity of this effort has led to an extension of DE’s target completion date to 2014.7 Assisted by a correspondence group, the annual meetings of the DE Sub-Committee in 2010, 2011, 2012 and 2013 made progress in developing a Code.8

Tacit Acceptance Procedure

Technology and techniques in the shipping industry change very rapidly. As a result, not only are new conventions required but existing ones need to be kept current. In many conventions, amendments come into force only after a percentage of contracting States, usually two thirds, have accepted them. This normally 4 “Guidelines for Ships Operating in Arctic Ice-Covered Waters,” IMO Doc. MSC/Circ.1056MEPC/Circ.399, 23 December 2002. 5 “Guidelines for Ships Operating in Polar Waters,” IMO Assembly Resolution A.1024(26), adopted 2 December 2009, IMO Doc. A26/Res. 1024, 18 January 2010. 6 “Report of the Maritime Safety Committee of the Eighty-Sixth Session,” IMO Doc. MSC 86/26, 12 June 2009, paragraph 23.32. 7 “Report of the Maritime Safety Committee on Its Ninetieth Session,” IMO Doc. MSC 90/28/ Add.1, 29 June 2012, Annex 29, p. 14. In June 2013 the IMO Secretary-General is reported to have stated at the Oslo 2013 Maritime Summit that the mandatory polar code “will be operational in 2015 [and] will probably be implemented in 2016.” “IMO to implement Arctic shipping code by 2016,” Port Technology International News, 7 June 2013, at http://www .porttechnology.org/news/imo_to_implement_arctic_shipping_code_by_2016/. 8 See: the reports of the DE Sub-Committee, IMO Docs. DE /26, 15 March 2010; DE 54/23, 17 November 2010; DE 55/22, 15 April 2011; DE 56/25, 28 February 2012; and DE 57/25, 5 April 2013.

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means that more acceptances are required to amend a convention than were originally required to bring it into force in the first place, especially where the number of State parties to a convention is large. This percentage requirement has led to long delays in bringing amendments into force. To remedy the situation, a different amendment procedure was devised for many IMO conventions. This procedure has been adopted in treaties such as the 1972 Convention on the International Regulations for Preventing Collisions at Sea,9 the MARPOL Convention and the SOLAS Convention (see Appendix 6.1 and 6.2 below). Instead of requiring that an amendment would enter into force after being accepted by, for example, two thirds of the parties, the tacit acceptance procedure provides that an amendment is to enter into force at a particular time unless, before that date, objections to the amendment are received from a specified number of parties, with the amendment being in force for those States that have not objected.10 In the case of the SOLAS Convention, an amendment to most of the annexes (which constitute the technical parts of the Convention) is deemed to have been accepted at the end of two years from the date upon which it is communicated to contracting governments unless the amendment is objected to by more than one third of the contracting governments or contracting governments owning not less than 50 per cent of the world’s gross merchant tonnage.11 As a matter of practice, a minimum one year period has been set by the MSC for the communication of objections. As was expected, the tacit acceptance procedure has greatly sped up the amendment process. Amendments generally now enter into force within 12 months of adoption. Compared to this, none of the amendments to the 1960 SOLAS Convention between 1966 and 1973 received sufficient acceptances to satisfy the requirements for entry into force.12 In the case of the MARPOL Convention, which was adopted through the work of the MEPC, the technical regulations are found in annexes and related appendices to the Convention. The tacit acceptance procedure for amendments 9 10

11 12

Convention on the International Regulations for Preventing Collisions at Sea, 20 October 1972, 1050 U.N.T.S. 16, as amended. For discussions of tacit acceptance procedures for technical amendments of other treaties, see: A. Aust, Modern Treaty Law and Practice, 2nd ed. (Cambridge: Cambridge Univ. Press 2007), at 268–269 and J. Brunnée, “Treaty Amendments,” in The Oxford Guide to Treaties, ed. D. Hollis (Oxford: Oxford University Press 2012), at 356–360. SOLAS Convention, supra note 1, article VIII (b)(vi)(2)(aa) reproduced in Appendix 6.1. See: IMO, “Adopting a Convention, Entry into force, Accession, Amendment, Enforcement, Tacit Acceptance Procedure,” at http://www.imo.org/About/Conventions/Pages/Home .aspx.

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to those annexes and appendices provide for entry into force after a minimum of ten months from the date of adoption of the amendments.13 However, in practice, the MEPC has relied on a slightly longer period for the entry into force of amendments to the six annexes or appendices.

Making the Polar Code Mandatory

One of the issues discussed regarding the Polar Code in 2009 was how to adopt the Code under relevant IMO conventions, principally SOLAS and MARPOL. This author suggested that the tacit acceptance procedure could be relied upon to amend SOLAS, specifically Chapter 5, Safety of Navigation, Regulation 34, “Safe navigation and avoidance of dangerous situations.”14 Depending on the ultimate content of the Polar Code, such an amendment could add another sentence to the first paragraph of Regulation 34 along the lines suggested in Assembly Resolution A.911(22).15 The additional sentence is set out below. 1.

Amend SOLAS regulation V/34, Safe navigation and avoidance of dan­ gerous situations, by revising paragraph 1 to read as follows (new text underlined): 1 Prior to proceeding to sea, the master shall ensure that the intended voyage has been planned using the appropriate nautical charts and nautical publications for the area concerned, taking into account the guidelines and recommendations developed by the Organization. For voyages intended to be in the Arctic or Southern Oceans, the master shall also comply with the applicable [mandatory] provisions of the Polar Code, adopted by the Maritime Safety Committee of the Organization by resolution MSC…(..), as may be amended by the Organization, provided that such amendments are adopted, brought into force and take effect in accordance with the provisions of article VIII of the present Convention concerning the amendment procedures applicable to the Annex other than Chapter 1.16

13 MARPOL, supra note 2, Article 16 reproduced in Appendix 6.2. 14 SOLAS Convention, supra note 1, Chapter V, Regulation 34. 15 IMO Assembly Resolution A.911(22), “Uniform Wording for Referencing IMO Instru­ ments,” adopted 29 November 2011, IMO Doc. A22/Res. 911, 22 January 2002. 16 J.A. Roach and R.W. Smith, Excessive Maritime Claims, 3rd ed. (Leiden: Martinus Nijhoff, 2012), at 486–487. This proposal follows the provisions of Resolution A.911(22), id., Annex, paragraph 3, using the 2000 amendments to SOLAS Chapter X (HSC Code) as a

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However, as described below, the IMO has decided on a more complex process. During the 2009 discussions, the Polar Code Working Group noted that “mandating the Polar Code through MARPOL is not a straightforward issue, given the different number of Parties to the various annexes to MARPOL.”17 At issue is also which of the annexes to the MARPOL Convention are to be amended, since none of them fit this situation. However, given that SOLAS Regulation V/34.2.4 already refers to “marine environmental protection measures,” the author had suggested it may be that no amendment of the MARPOL Convention would be necessary to make the Code mandatory.18 At the request of the DE Sub-Committee, the IMO Secretariat provided a legal opinion on the making of the Polar Code mandatory containing three options.19 The draft report of the MEPC 62 2011 meeting had indicated that, subject to the concurrent decision of MSC, a new convention was the best option.20 The practical effect of deciding to negotiate a new convention would have been that the entry into force of the Polar Code would likely not occur for over a decade and that at the time of entry into force the Polar Code would probably not apply to all ships likely to use the Arctic. However, the final report of the 2011 MEPC meeting did not include this proposal.21 At the 2012 MEPC meeting, the discussion on how to make the Code mandatory revealed a preference for the option of amending the relevant existing instruments, provided a way could be found to keep from fragmenting the Code. It was proposed by the Chairman of the Committee that the Code could be incorporated by reference into each instrument (e.g. SOLAS, MARPOL Annexes, BWM and AFS) as a consolidated text, but that the amendment procedures under each instrument would be applicable 17

18 19 20 21

model. The authors noted that if construction or other requirements are set out in the Polar Code, other similar amendments may need to be made. “Summary of Discussions Submitted by the Chairman of the DE 54 Working Group on Development of a Mandatory Polar Code,” IMO Doc. DE 55/12, 10 November 2010, paragraph 3. Roach and Smith, supra note 16, at 487. “Note by the Secretariat: Legal Opinion on Making the Polar Code Mandatory,” IMO Doc. MEPC 62/11/4/Add.1, 6 May 2011. “Draft Report of the Marine Environment Protection Committee on Its Sixty-Second Session,” IMO Doc. MEPC 62/WP.1, 15 July 2011, paragraph 11.15. “Report of the Marine Environment Protection Committee on Its Sixty-Second Session,” IMO Doc. MEPC 62/24, 26 July 2011, paragraphs 11.14–11.15.

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only to the chapters of the Code which contained the subject-matter which was relevant to the instrument concerned. Furthermore, the entry into force date could be coordinated by adjusting the date on which the amendments were deemed to be accepted. The representative of the Legal Office confirmed that this approach would be legally viable, but advised that the Committee should bear in mind that some sections might be common to the whole Code (such as definitions and certification requirements) and that this might then affect how the incorporation by reference and corresponding amendment procedures were drafted. […] The Committee considered the issue as to whether the Code should be limited only to matters which were additional to those already addressed under existing instruments or if any relevant parts of existing instruments should also be included in the Code. Whilst noting that some support was expressed for a fully consolidated text, the Committee decided that it was preferable to include in the Code only new issues and additional requirements which do not appear in other instruments. […] The Committee, having resolved these issues, instructed that these points should be addressed by the DE Sub-Committee as work on the Polar Code is progressed.22 At the 2012 MSC meeting, the Committee considered a proposal by Argentina23 to structure the Polar Code according to general provisions, safety measures (containing mandatory and recommendatory provisions) and pollution prevention measures, corresponding to respective MARPOL annexes and other pollution-related IMO instruments. The safety measures would then be included in a new chapter of SOLAS, while the pollution prevention measures would be included in each of the MARPOL annexes and other pollution-related instruments as applicable. This would provide flexibility to adopt amendments to the Code independently, both on safety and pollution prevention.24 Following discussions, the MSC instructed the DE Sub-Committee to 22 23 24

“Report of the Marine Environmental Protection Committee on Its Sixty-Third Session,” IMO Doc. MEPC 63/23, 14 March 2012, paragraphs 11.16–11.18. Argentina, “Structure of the Polar Code and Amendments to Related IMO Instruments,” IMO Doc. MSC 91/8/1, 12 September 2012. “Report of the Maritime Safety Committee on Its Ninety-First Session,” IMO Doc. MSC 91/22, 17 December 2012, paragraph 8.2.2.

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structure the draft Polar Code along the lines proposed in document MSC 91/8/1, i.e. having a general part, a part on safety measures and a part on pollution prevention measures, so that the Code could be adopted under the relevant applicable IMO instruments and specific maritime safety and pollution prevention requirements could be amended independently.25 The DE Sub-Committee in 2013 was of the view that this matter did not need further discussion. It agreed that the Polar Code would be adopted by separate MSC and MEPC resolutions; that the amendments to mandatory instruments to make the Code mandatory should be drafted along the lines proposed by Argentina in document MSC 91/8/1; and that the draft Code should be restructured in line with these decisions.26 At the May 2013 meeting, the Chair of the DE Sub-Committee informed the Committee that “work was being undertaken to structure the draft Polar Code along the lines proposed in document MSC 91/8/1 (Argentina)” and urged “the Committee to give clear instructions to the Sub-Committee by resolving the outstanding issues emanating from DE 57.”27 The MEPC took a number of decisions as requested.28 The 2012 draft of the Polar Code29 is presently structured as follows: • General provisions: definitions, application, certificate and survey, and man­ datory operational limitations, applicable to both the safety and pollution prevention sections. • Following the example of the revised International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW),30 the 25 26 27 28 29

30

Id., paragraph 8.6. “DE: Report to the Maritime Safety Committee and the Marine Environment Protection Committee,” IMO Doc. DE 57/25, 5 April 2013, paragraph 11.10. “Report of the Marine Environment Protection Committee on Its Sixty-Fifth Session,” IMO Doc. MEPC 65/22, 24 May 2013, paragraph 11.47. Id., paragraphs 11.48–11.62. “Draft International Code [of Safety] For Ships Operating in Polar Waters,” (Report of the Correspondence Group, submitted by Norway), IMO Doc. DE 57/11/6, 14 December 2012, Annex I, paragraph 8. International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 7 July 1978, 1361 U.N.T.S. 2, as amended.

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safety and pollution prevention sections will each contain both mandatory requirements (Part A) and additional non-mandatory guidance (Part B). • The Sub-Committee has developed proposed text for an environmental chapter on the basis of a proposal by Denmark, Finland, Iceland, Norway and the United States,31 which contains additional requirements to those of MARPOL Annexes I–VI, and guidance on anti-fouling and ballast water management.32 The DE Sub-Committee requested MEPC to consider this proposal.33 MEPC provided the requested guidance and the chapter will be further developed by the Polar Code Working Group intersessionally.34 Taking into account these developments, the modified Argentine proposal could provide the following basic structure for the Polar Code:35 International Code for Ships Operating in Polar Waters Part I: Safety Measures - Part I-A (Mandatory regulations) - Part I-B (Voluntary guidance) Part II: Pollution Prevention Measures - Part II-A (Mandatory regulations) -- MARPOL Annex I Oil pollution -- MARPOL Annex II Pollution from noxious liquid substances -- MARPOL Annex III Harmful substances carried by sea in packaged form -- MARPOL Annex IV Sewage -- MARPOL Annex V Garbage -- MARPOL Annex VI Air pollution - Part II-B (Voluntary guidance) -- MARPOL Annexes -- Anti-fouling -- Ballast water 31

32 33 34 35

Denmark, Finland, Norway and the United States, “Proposals Related to an Environmental Chapter of a Mandatory Code for Ships Operating in Polar Waters (Polar Code),” IMO Doc. DE 57/11/9, 10 January 2013. “Report of the Working Group (Part 1),” IMO Doc. DE 57/WP.6, 21 March 2013, paragraphs 19–35 and “DE Report,” supra note 26, paragraphs 11.11–11.16. “DE Report,” supra note 26, paragraph 11.40. “MEPC Report 65th Session,” supra note 27, paragraph 11.64. Adapted from Argentina “Structure of the Polar Code,” supra note 23, paragraph 6.

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To make the Part I-A provisions mandatory, the Argentine proposal would be to amend the SOLAS Convention by adding a new Chapter 13, “Additional Safety Measures for Polar Waters,” structured along the lines of Chapters 8, 10 or 12. On the other hand, to make the Part II-A provisions mandatory, the Argentine proposal would amend each of the six MARPOL Convention annexes or their appendices, along the lines of the recent amendments to Annex VI.36 The MSC and MEPC resolutions necessary for the adoption of the amendments would specifically reference the tacit acceptance procedures in article VIII of the SOLAS Convention and article 16 of the MARPOL Convention as discussed above. In light of the complexities resulting from the frequency of amendments to safety-related conventions and codes,37 the MSC agreed in 1991 on a four-year interval between bringing successive amendments to the instruments into force.38 However, the MSC at that time also decided that observance of this four-year interval was subject to the IMO being able, in exceptional circumstances, to adopt and bring into force new amendments at shorter intervals if, on the basis of experience, it was deemed necessary for compelling reasons. Since that time, the MSC has found that in the large majority of cases, compelling reasons have existed justifying bringing amendments to safety-related conventions and codes into force in less than four-year intervals. Given the urgency under which the Polar Code is being developed, the four-year interval is likely to be waived once again.

Seafarer Training

At present there are no requirements for training and certification standards and crew qualifications for ships operating in the Arctic or Southern Oceans. At the meeting of the Sub-Committee on Standards of Training and Watch­ keeping (STW) in early February 2009, Norway, supported by the Russian Federation and Chile, proposed a new regulation for the STCW Convention 36

37

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“Amendments to the Annex of 1997 to Amend the MARPOL Convention (Revised Annex VI),” MEPC Resolution MEPC.176(58), 10 October 2008, IMO Doc. MEPC 58/23/Add.1, 17 October 2008, Annex 13. For example, between 1974 and 1991, eight amendments to the SOLAS Convention had been adopted. Since then, another 44 amendments to the SOLAS Convention have been adopted. See http://www.imo.org/About/Conventions/StatusOfConventions/Documents/ List for a 26-page list of amendments to the SOLAS Convention, SOLAS Protocols, the MARPOL Convention and other instruments mandatory under the SOLAS Convention. IMO Doc. MSC 59/33, May 1991, paragraphs 26.2 and 26.7.

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and a new section for the STCW Code with a view to introducing mandatory minimum requirements for the training and qualifications of navigators serving on board ships operating in areas where ice or ice floes are likely to be present.39 However, in light of work on the Mandatory Polar Code, the STW Sub-Committee agreed to establish a correspondence group coordinated by Norway to develop training guidelines for personnel operating in ice-covered waters and to submit its report for consideration in January 2010.40 The 2009 MSC meeting approved the creation of an intersessional working group to conduct a comprehensive review of the STCW Convention and the STCW Code.41 The intersessional working group agreed that the correspondence group should concentrate on developing guidelines for inclusion in Part B of the Polar Code. In November 2009, the STW correspondence group submitted its report including draft guidance regarding training of officers on ships operating in polar waters.42 The STW Sub-Committee in January 2010 approved both the draft guidance43 and a draft conference resolution.44 The Manila STCW Conference in June 2010 adopted, without substantive change, the training guidance and resolution.45 The guidance notes that “there are no corresponding regulations in the Convention or sections in part A of the Code” for this guidance.46 As these guidelines and recommendations were adopted well before the yet-to-be-drafted mandatory Polar Code, all recognized “the need for mandatory training requirements when the Polar Code

39 40 41 42 43 44

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Norway, “Training Requirements for Ships Operating in Ice-Covered Waters,” IMO Doc. STW 40/7/25, 20 November 2008. “STW: Report to the Maritime Safety Committee,” IMO Doc. STW 40/14, 23 February 2009, paragraph 7.6.21. “MSC Report 86th Session,” supra note 6, paragraph 9.3. “Report of the Correspondence Group,” (submitted by Norway), IMO Doc. STW 41/7/39, 6 November 2009. “STW: Report to the Maritime Safety Committee,” IMO Doc. STW 41/16/Add.1, 9 February 2010, Annex 3, at 90–92. “STW: Report to the Maritime Safety Committee,” IMO Doc. STW 41/16, 22 January 2010, paragraph 7.11.24.13 and “STW: Report of the Drafting Group,” IMO Doc. STW 41/WP.4, 14 January 2010, Annex 4, at 14. Conference of the Parties to the STCW Convention, “Adoption of Final Act,” Resolution 11, “Measures to ensure the competence of masters and officers of ships operating in polar waters,” IMO Doc. STCW/CONF.2/32, 1 July 2010, at 15 and “Guidance regarding training of masters and officers for ships operating in polar waters,” IMO Doc. STCW/ Conf. 2/34, 1 July 2010, at 330. “Guidance regarding training,” supra note 45.

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under development by the International Maritime Organization is adopted.”47 The 2010 Manila STCW Conference resolution RECOMMENDS that governments adopt measures conducive to ensuring that masters and officers of ships, which operate in polar waters, have appropriate training and experience, so that they are able to: 1. plan voyages to polar waters, taking into account glaciological, hydrographic, oceanographic and meteorological factors; 2. navigate safely in polar waters, in particular in restricted ice-covered areas under adverse conditions of wind and visibility; and 3. supervise and ensure compliance with the requirements deriving from intergovernmental agreements and with those relating to safety of life at sea and protection of the marine environment.48 The 2013 DE Working Group report included in draft Chapter 13 proposed regulations on crewing, training and certification.49 The proposals were considered at the 2013 STW Sub-Committee, along with several submissions proposing that the STCW be amended to include more detailed provisions for seafarers working in polar areas50 and revisions to Chapter 13 of the draft Polar Code.51 The STW Sub-Committee proposed further consideration of whether these matters should be covered in the Polar Code or in the STCW Convention.52 The IMO Secretariat has advised that the DE Sub-Committee concluded “that it is appropriate to include training and certification provisions for the Polar Code, in Chapter 5 of the STCW Convention and Code (paragraph 13.11).”53

47 48 49 50

51 52 53

STCW Convention, Resolution 11, supra note 45. Id. “Draft text of the Polar Code,” (Correspondence Group, submitted by Norway), IMO Doc. SDC 1/INF.10, 15 November 2013, Annex, Chapter 13. Canada, “Training Requirements for Officers and Crew on Board Ships Operating in Polar Waters,” IMO Doc. STW 44/13, 25 January 2013 and Canada, Iceland, Norway and United States, “Amendments to the STCW Convention and Code – Training Requirements for Officers and Crew on Board Ships Operating in Polar Waters,” IMO Doc. STW/44/13/1, 12 February 2013. Argentina, “Crewing, Training and Certification,” IMO Doc. STW 44/13/2, 22 February 2013. STW Committee, “Report to the Maritime Safety Committee,” IMO Doc. STW 44/19, 20 May 2013, at paragraph 13.7. IMO Secretariat, “Training and Watchkeeping,” IMO Doc. MSC 92/14, 10 May 2013, paragraph 2.2.

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Conclusion The requirement to develop a comprehensive Polar Code has proven more time-consuming than originally anticipated, as is evident from the two-year delay in the target completion date from 2012 to 2014. Nevertheless, it appears that date can be met by the DE Sub-Committee.54 Whether MSC and MEPC can adopt the Code in 2014 remains to be seen. The way ahead to make the Code mandatory, once completed, seems to have been clarified. One issue that remains to be resolved, however, is whether a diplomatic conference will be needed to adopt a new chapter for the SOLAS Convention on the Polar Code. Another is ensuring a uniform date of entry into force for the various amendments making up the Polar Code. Appendix 6.1. Amending the SOLAS Convention Article VIII. AMENDMENTS (a) The present Convention may be amended by either of the procedures specified in the following paragraphs. (b) Amendments after consideration within the Organization: (i) Any amendment proposed by a Contracting Government shall be submitted to the Secretary-General of the Organization, who shall then circulate it to all Members of the Organization and all Contracting Governments at least six months prior to its consideration. (ii) Any amendment proposed and circulated as above shall be referred to the Maritime Safety Committee of the Organization for consideration. (iii) Contracting Governments of States, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Maritime Safety Committee for the consideration and adoption of amendments. (iv) Amendments shall be adopted by a two-thirds majority of the Contracting Governments present and voting in the Maritime Safety Committee expanded as provided for in sub-paragraph (iii) of this 54

The IMO Secretary-General has restructured the sub-committees. The former SubCommittees on Design and Construction (DE), Fire Protection (FP), and Stability and Load Lines and Fishing Vessel Safety (SLF) have merged into two Sub-Committees. The work on the Polar Code has been assigned primarily to the Sub-Committee on Ship Systems and Equipment (SSE), with coordination by a new Sub-Committee on Ship Design and Construction (SDC). The target completion date of 2014 remains unchanged.

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paragraph (hereinafter referred to as “the expanded Maritime Safety Committee”) on condition that at least one-third of the Contracting Governments shall be present at the time of voting. (v) Amendments adopted in accordance with sub-paragraph (iv) of this paragraph shall be communicated by the Secretary-General of the Organization to all Contracting Governments for acceptance. (vi) (1) An amendment to an Article of the Convention or to Chapter 1 of the Annex shall be deemed to have been accepted on the date on which it is accepted by two-thirds of the Contracting Governments. (2) An amendment to the Annex other than Chapter 1 shall be deemed to have been accepted: (aa) At the end of two years from the date on which it is communicated to Contracting Governments for acceptance; or (bb) At the end of a different period, which shall not be less than one year, if so determined at the time of its adoption by a twothirds majority of the Contracting Governments present and voting in the expanded Maritime Safety Committee. However, if within the specified period either more than one-third of Contracting Governments, or Contracting Governments the combined merchant fleets of which constitute not less than fifty per cent of the gross tonnage of the world’s merchant fleet, notify the Secretary-General of the Organization that they object to the amendment, it shall be deemed not to have been accepted. (vii) (1) An amendment to an Article of the Convention or to Chapter 1 of the Annex shall enter into force with respect to those Contracting Governments which have accepted it, six months after the date on which it is deemed to have been accepted, and with respect to each Contracting Government which accepts it after that date, six months after the date of that Contracting Government’s acceptance. (2) An amendment to the Annex other than Chapter 1 shall enter into force with respect to all Contracting Governments, except those which have objected to the amendment under sub-paragraph (vi) (2) of this paragraph and which have not withdrawn such objections, six months after the date on which it is deemed to have been accepted. However, before the date set for entry into force, any Contracting Government may give notice to the Secretary-General of the Organization that it exempts itself from giving effect to that amendment for a period not longer than one year from the date of its entry into force, or for such longer period as may be determined by a

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two-thirds majority of the Contracting Governments present and voting in the expanded Maritime Safety Committee at the time of the adoption of the amendment. (c) Amendment by a Conference: (i) Upon the request of a Contracting Government concurred in by at least one-third of the Contracting Governments, the Organization shall convene a Conference of Contracting Governments to consider amendments to the present Convention. (ii) Every amendment adopted by such a Conference by a two-thirds majority of the Contracting Governments present and voting shall be communicated by the Secretary-General of the Organization to all Contracting Governments for acceptance. (iii) Unless the Conference decides otherwise, the amendment shall be deemed to have been accepted and shall enter into force in accordance with the procedures specified in sub-paragraphs (b)(vi) and (b)(vii) respectively of this Article, provided that references in these paragraphs to the expanded Maritime Safety Committee shall be taken to mean references to the Conference.

Appendix 6.2. Amending the MARPOL Convention Article 16. AMENDMENTS (1)

The present Convention may be amended by any of the procedures specified in the following paragraphs. (2) Amendments after consideration by the Organization: (a) Any amendment proposed by a Party to the Convention shall be sub­ mitted to the Organization and circulated by its Secretary-General to all Members of the Organization and all Parties at least six months prior to its consideration; (b) Any amendment proposed and circulated as above shall be submitted to an appropriate body by the Organization for consideration; (c) Parties to the Convention, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the appropriate body; (d) Amendments shall be adopted by a two-thirds majority of only the Parties to the Convention present and voting; (e) If adopted in accordance with sub-paragraph (d) above, amendments shall be communicated by the Secretary-General of the Organization to all the Parties to the Convention for acceptance;

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An amendment shall be deemed to have been accepted in the following circumstances: (i) An amendment to an Article of the Convention shall be deemed to have been accepted on the date on which it is accepted by two-thirds of the Parties, the combined merchant fleets of which constitute not less than fifty per cent of the gross tonnage of the word’s merchant fleet; (ii) An amendment to an Annex to the Convention shall be deemed to have been accepted in accordance with the procedure specified in sub-paragraph ( f )(iii) unless the appropriate body, at the time of its adoption, determines that the amendment shall be deemed to have been accepted on the date on which it is accepted by two-thirds of the Parties, the combined merchant fleets of which constitute not less than fifty per cent of the gross tonnage of the world’s merchant fleet. Nevertheless, at any time before the entry into force of an amendment to an Annex to the Convention, a Party may notify the Secretary- General of the Organization that its express approval will be necessary before the amendment enters into force for it. The latter shall bring such notification and the date of its receipt to the notice of Parties; (iii) An amendment to an Appendix to an Annex to the Convention shall be deemed to have been accepted at the end of a period to be determined by the appropriate body at the time of its adoption, which period shall be not less than ten months, unless within that period an objection is communicated to the Organization by not less than one-third of the Parties or by the Parties the combined merchant fleets of which constitute not less than fifty per cent of the gross tonnage of the world’s merchant fleet whichever condition is fulfilled; (iv) An amendment to Protocol I to the Convention shall be subject to the same procedures as for the amendments to the Annexes to the Convention, as provided for in sub-paragraphs ( f )(ii) or ( f )(iii) above; (v) An amendment to Protocol II to the Convention shall be subject to the same procedures as for the amendments to an Article of the Convention, as provided for in sub-paragraph ( f )(i) above; (g) The amendment shall enter into force under the following conditions: (i) In the case of an amendment to an Article of the Convention, to Protocol II, or to Protocol I or to an Annex to the Convention not under the procedure specified in sub-paragraph ( f )(iii), the amendment accepted in conformity with the foregoing provisions shall enter into force six months after the date of its acceptance with respect to the Parties which have declared that they have accepted it;

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(ii) In the case of an amendment to Protocol I, to an Appendix to an Annex or to an Annex to the Convention under the procedure specified in subparagraph ( f )(iii), the amendment deemed to have been accepted in accordance with the foregoing conditions shall enter into force six months after its acceptance for all the Parties with the exception of those which, before that date, have made a declaration that they do not accept it or a declaration under sub-paragraph ( f )(ii), that their express approval is necessary. (3) Amendment by a Conference: (a) Upon the request of a Party, concurred in by at least one-third of the Parties, the Organization shall convene a Conference of Parties to the Convention to consider amendments to the present Convention. (b) Every amendment adopted by such a Conference by a two-thirds majority of those present and voting of the Parties shall be communicated by the Secretary-General of the Organization to all Contracting Parties for their acceptance. (c) Unless the Conference decides otherwise, the amendment shall be deemed to have been accepted and to have entered into force in accordance with the procedures specified for that purpose in paragraph (2)( f ) and (g) above. (4) (a) In the case of an amendment to an Optional Annex, a reference in the present Article to a “Party to the Convention” shall be deemed to mean a reference to a Party bound by that Annex. (b) Any Party which has declined to accept an amendment to an Annex shall be treated as a non-Party only for the purpose of application of that Amendment. (5) The adoption and entry into force of a new Annex shall be subject to the same procedures as for the adoption and entry into force of an amendment to an Article of the Convention.

chapter 7

A Note on the Potential Conflicting Treaty Rights and Obligations between the IMO’s Polar Code and Article 234 of the Law of the Sea Convention Ted L. McDorman* Introduction Vessels in polar waters have increasingly attracted public attention in recent years as a consequence of global climate change and diminishing ice in both the Arctic and Antarctic. The International Maritime Organization (IMO) first turned its attention to guidelines for polar shipping in the 1990s with the adoption in 2002 of the Guidelines for Ships Operating in Arctic Ice-covered Waters1 and the 2009 Guidelines for Ships Operating in Polar Waters.2 Work within the IMO has since continued on the development of a mandatory International Code for Ships Operating in Polar Waters (the Polar Code).3 The goal is to produce a combination of internationally legally binding measures and nonbinding recommendations respecting, amongst other things, vessel standards, operating procedures and environmental standards applicable to vessels engaging in activities both in Arctic and Antarctic waters. In November 2012, it was decided within the Maritime Safety Committee (MSC) of the IMO that the Polar Code would not go forward as a single, * Faculty of Law, University of Victoria, British Columbia, Canada. This contribution was prepared while Professor McDorman was on secondment to the Bureau of Legal Affairs of the Canadian Department of Foreign Affairs and International Trade. The contents and views in this article are personal and do not reflect the views or opinions of the Bureau of Legal Affairs, the Department of Foreign Affairs and International Trade, or the Government of Canada. The author would like to thank Gary Luton for his helpful comments. 1 International Maritime Organization (IMO) Doc. MSC/Circ. 1956, MEPC/Circ. 399, 23 December 2002. 2 IMO, Res. A.1024(26), adopted 2 December 2009, IMO Doc. A 26/Res. 1024, 18 January 2010. 3 See: IMO, “Protecting the Polar regions from shipping, protecting ships in Polar waters,” at http://www.imo.org/mediacentre/hottopics/polar/Pages/default.aspx. For a Canadian perspective on the background to the Polar Code, see: Peter Kikkert, “Promoting National Interests and Fostering Cooperation: Canada and the Development of a Polar Code,” Journal of Maritime Law & Commerce 43 (2012): 319–334.

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comprehensive treaty but rather would be adopted through amendments being made to the annexes of the International Convention on the Safety of Life at Sea (SOLAS);4 the International Convention for the Prevention of Pollution from Ships (MARPOL);5 and other IMO conventions as necessary.6 In particular, the Code is to be structured with general provisions; safety measures, which will be a new chapter of the SOLAS Convention; and pollution prevention measures, which will be included in the relevant annexes of the MARPOL Convention.7 The benefit of this is that as amendments to the annexes of the SOLAS and MARPOL Conventions, the new provisions will be subject to the tacit amendment procedures of each Convention,8 which, in short form, means that the amendments will come into effect for all State parties to these Conventions unless a State indicates that the amendment will not be binding upon it. Pre-dating the above work by States within the IMO was the inclusion in the 1982 U.N. Convention on the Law of the Sea9 of article 234 that specifically deals with shipping in ‘ice-covered areas’.10 The history of article 234 is 4

5

6 7

8 9 10

International Convention for the Safety of Life at Sea (SOLAS), 1 November 1974, 1184 U.N.T.S. 2, 1978 Protocol of Amendment, 17 February 1978, 1226 U.N.T.S. 237 and subsequent amendments. International Convention for the Prevention of Pollution from Ships (MARPOL), 2 November 1973 and 1978 Protocol of Amendment, 17 February 1978, 1340 U.N.T.S. 61 and subsequent amendments. For more detail, see J. Ashley Roach, “A Note on Making the Polar Code Mandatory” in this collection. “Outcome of MSC 91,” Secretariat, IMO doc. DE/57/11/5, 17 December 2012, paragraph 1. See also: “Report of the Maritime Safety Committee on its Ninety-First Session,” IMO Doc. MSC/91/22, 17 December 2012, paras. 8.1–8.6 and Argentina, “Structure of the Polar Code and Amendments to the Related IMO Instruments,” IMO Doc. MSC/91/8/1, 12 September 2012. SOLAS Convention, supra note 4, article VIII and MARPOL Convention, supra note 5, article 16. U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397. Id., article 234: Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in icecovered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.

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well-known; it arose from negotiations between Canada, the United States and Soviet Russia and was aggressively pursued by Canada as a means of attaining international legal justification for its 1970 Arctic Waters Pollution Prevention Act11 that imposed strict environmental and construction standards for all vessels active within a 100 nm zone adjacent to Canada’s Arctic archipelago.12 The United States has explicitly accepted that article 234 is part of customary international law13 and has noted that: The purpose of article 234…is to provide the basis for implementing the provisions applicable to commercial and private vessels found in the 1970 Canadian Arctic Waters Pollution Prevention Act…, while protecting fundamental U.S. security interests in the exercise of navigational rights and freedom throughout the Arctic.14 Article 234 is a unique provision in that it allows a coastal State to adopt and enforce within its 200 nm zone laws and regulations for the protection of the marine environment from vessel-source pollution containing more stringent standards than the existing internationally accepted rules.15 This is a right of a coastal State and not subject to pre-approval or review by the 11 12

13

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15

Canada, Arctic Waters Pollution Prevention Act, R.S.C. 1985, c. A-12, as amended. See: Donald M. McRae, “The Negotiation of Article 234,” in Politics of the Northwest Passage, ed. Franklyn Griffiths (Montreal: McGill-Queen’s University Press, 1987), at 98–114 and Kristin Bartenstein, “The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?,” Ocean Development & International Law 42 (2011): 22, at 23–27. Brian Hoyle, Director of the Office of Law and Policy, U.S. Department of State, “The United States Government Perspective,” in The United States without the Law of the Sea Treaty: Opportunities and Costs, ed. Lawrence Juda (Wakefield: Times Press, 1983), at 135. R. Douglas Brubaker, “The Arctic – Navigational Issues under International Law of the Sea,” Yearbook of Polar Law 2 (2010): 7, at 25 concluded regarding article 234 that “[i]t is therefore probable a customary rule is materializing.” United States, “Commentary – The 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation of Part XI,” attached to Message from the President of the United States transmitting the United Nations Convention on the Law of the Sea, with Annexes, Montego Bay, 10 December 1982 and the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982,” U.S. Senate Treaty Document 39, 103rd Congress, 2nd Session IV (1994), at 40 and reprinted in (1995), 34 I.L.M. 1393. S. Rosenne and A. Yankov, United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. IV (Dordrecht: Martinus Nijhoff, 1991), at 393 and 396.

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IMO.16 Article 234 is not, however, open-ended. Sovereign immune vessels are exempt from any measures adopted pursuant to article 234. Moreover, the laws and regulations permitted to be adopted must be non-discriminatory, be tied to “the prevention, reduction and control of marine pollution from vessels,” have “due regard” to the best scientific evidence available, and have “due regard to navigation.” A final limitation stems from the wording that the regulations are only to apply to “ice-covered areas…, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation.” The question for examination in this contribution is the international legal relationship that may exist between the Polar Code and article 234. While still under discussion, it is apparent that the Polar Code will follow other IMO conventions and place the primary legal responsibility for implementing the obligations and their enforcement on flag States. The idea, as with other IMO conventions, is to minimize vessels facing different laws and standards in different States (avoiding a patchwork quilt of regulatory requirements) that is seen as not being conducive to commercial shipping.17 The coastal States, which under the Polar Code are expected to have a role in monitoring shipping activity within their 200 nm zones and supplying information, such as regarding ice conditions, are highly unlikely to see in the Code a right within their 200 nm zones to enforce the Polar Code standards against foreign vessels or to inspect foreign vessels for compliance. Article 234, however, unequivocally provides that a coastal State may both enact and enforce laws and regulations respecting vessels in its 200 nm zone. Hence, there is potential collision between the unilateral right under article 234 and the goal of consistent and uniform national laws for vessels engaged in polar water activities in the mandatory Polar Code. The question of the relationship between the Polar Code and article 234 has been raised by Canada and the Russian Federation, both of which have legislation enacted pursuant to article 234.18 Canada and Russia forwarded proposals within the Polar Code discussions that directed that “coastal States may retain 16

17

18

See: McRae, supra note 12, at 108–109 and Bartenstein, supra note 12, at 36–37. Bartenstein comments at 37: “The absence of an international review process is one of the few certitudes in Article 234.” In the context of the Polar Code, see: Kristin Bartenstein, “Navigating the Arctic: The Canadian NORDREG, the International Polar Code and Regional Cooperation,” German Yearbook of International Law 54 (2011): 77, at 112. See generally: Brubaker, supra note 13, at 51–63.

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local navigation rules and regulations for certain routes and waterways under their jurisdiction taking account local conditions, infrastructure and procedures.”19 As described in the Russian proposal, this provision “formulates the principle of priority of national regulations over the Code’s requirements.”20 The relationship of article 234 and the Polar Code was indirectly raised by the International Chamber of Shipping (ICS) in their “Position Paper on Arctic Shipping” released in December 2012.21 While the Paper is less than clear, it states that “[u]nilateral, national or regional regulations governing ship safety, environmental protection, and other shipping matters should be avoided…. This includes regulations and enforcement mechanisms that Arctic coastal States might seek to introduce within ice-covered waters.” Further, “Arctic nations should only apply requirements for flag vessels consistent with ‘generally accepted international rules and standards’.”22 As noted above, these are the usual goals of IMO conventions. On the relationship between the Polar Code and article 234, two authorities have suggested, based on the provisions of the 1969 Vienna Convention on the Law of Treaties, which directs that where provisions in two treaties with the same parties are incompatible that the later treaty has priority over the earlier treaty,23 that a legally binding Polar Code would have priority over article 234 of the LOS Convention.24 More pointedly, a Norwegian author concluded that: “If the Polar Code is set up as a treaty, it will be binding for the states that accept it. Such states can no longer invoke as a basis for regulatory jurisdiction beyond what would be permitted under the Polar Code.”25 In other words, rights under article 234 would be overtaken by the Polar Code. This conclusion 19

20 21

22 23 24 25

See: Canada, “Proposed Framework for the Code of Ships Operating in Polar Waters,” IMO Doc. DE 53/18/2, 20 November 2009, at 7, paragraph 2.11 and Russian Federation, “Procedure of Accounting for National Regulations,” IMO Doc. DE 55/12/23, 1 February 2011, paragraph 5. Russia, “Procedure of Accounting for National Regulations,” supra note 19, paragraph 5. International Chamber of Shipping, “Position Paper on Arctic Shipping,” December 2012, at http://www.ics-shipping.org/ICS%20Position%20Paper%20on%20Arctic%20Shipping .pdfCS. Id., at 5 and 6. Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 397, article 30(3). J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, 3rd ed. (Leiden: Martinus Nijhoff, 2012), at 494. Ole Kristian Fauchald, “Regulatory Frameworks for Maritime Transport in the Arctic: Will a Polar Code Contribute to Resolve Conflicting Interests?,” in Maritime Transport in the High North, eds. J. Grue and R. Gabrielsen (Oslo: Norwegian Academy of Science and Letters and Norwegian Academy of Technological Studies, 2011), at 83.

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was repeated in a document submitted to the IMO Sub-Committee on Ship Design and Equipment (DE), tasked with coordinating the development of the Polar Code, by a coalition of non-governmental organizations in December 2011, where it is stated: “An international law expert has asserted that a binding Polar Code would limit the regulatory authority of coastal States to adopt navigational safety and environmental rules…under Article 234…”26 The focus of this contribution is by necessity speculative. The discussions within the IMO on the Polar Code are currently mired in technical detail and still several years away from addressing, if it is addressed at all, the issue of the relationship of treaties. Nevertheless, the issue is not without interest given Canada’s attachment to article 234 and its Arctic waters legislation and Russia’s similar position. What will be set out is a review of the technical international treaty law aspects of the possible relationship between the Polar Code and article 234 of the LOS Convention, taking into account the relevant conventions (the SOLAS and MARPOL Conventions) and State actions that have already been taken.

Relationship between Treaties

Relationship clauses and the provisions of the Vienna Convention on the Law of Treaties on successive treaties are only relevant where there is a conflict or incompatibility between specific obligations/rights in the treaties. It is understood that treaties are to be read so as to be in harmony and, to the extent possible, to avoid conflicts. What constitutes a conflict between treaties is not precisely clear.27 At its narrowest, a conflict exists between treaty provisions when “one obligation cannot be fulfilled without necessarily violating the other.”28 This view has been challenged as being ‘too restrictive’, since “States are not only concerned when a State cannot abide by two treaties but also where one treaty frustrates the goals of another treaty.”29 There are other ways of understanding when treaties 26

“Developing a strong Polar Code,” submitted by Friends of the Earth and others, IMO Doc. DE/56/INF.14, 9 December 2011, Annex, at 27–28. 27 Christopher J. Borgen, “Treaty Conflicts and Normative Fragmentation,” in The Oxford Guide to Treaties, ed. Duncan B. Hollis (Oxford: Oxford University Press, 2012), at 455, notes that “there is no generally accepted definition of what constitutes a conflict.” 28 Rüdiger Wolfrum and Nele Matz, Conflicts in International Environmental Law (Berlin: Springer, 2003), at 6 and Seyed Ali Sadat-Akhavi, Methods of Resolving Conflicts between Treaties (Leiden: Martinus Nijhoff, 2003), at 5. 29 Borgen, supra note 27, at 455.

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are in conflict,30 but this need not be pursued here. The Polar Code-article 234 situation is one of a right in a treaty to enact and enforce unilateral legislation (the LOS Convention) being potentially in conflict with the intention, express or implied, in the Polar Code that States may only enact regulations consistent with the Code and that a coastal State has no enforcement rights within their 200 nm EEZ. No conflict can be said to exist provided the permissive right in article 234 is not exercised, but there is little question that the Polar Code may frustrate the application by a State of its rights under article 234. The complex law and practice respecting successive treaties that are in conflict or deal with similar or complementary subject matter will not be spelled out in detail, nevertheless some attention is required to the basic understandings put forward in Article 30 of the Vienna Convention on the Law of Treaties. First, where there is a conflict in two treaties and the parties to the treaties are the same, the more recent convention prevails.31 Given that the MARPOL and SOLAS Conventions predate the LOS Convention, this may appear to settle the conflict issue in favor of the LOS Convention. However, the amendments to the MARPOL and SOLAS Conventions that are expected to implement the Polar Code and contain the potentially conflicting provisions will be the more recent provisions.32 Second, where there is a conflict in two treaties and one State is a party to both and another State is a party only to one of the treaties, then it is the treaty that is common to both States that prevails.33 This is relevant in the LOS Convention – Polar Code context as the United States is not a party to the LOS Convention. The above provisions of the Vienna Convention are residual rules that only come into play where the treaties in collision are silent.34 Treaties often 30 31 32

33

34

See: Wolfrum and Matz, supra note 28, at 6–12. Vienna Convention, supra note 23, articles 30(3) and (4)(a). See: Roach and Smith, supra note 24, at 494 regarding amendments to annexes of the SOLAS Convention being considered as more recent that the LOS Convention. Anthony Aust, Modern Treaty Law and Practice, 2nd ed. (Cambridge: Cambridge University, 2007), at 229 states unequivocally that the relevant time is that of adoption of the treaties and not their entry into force. Vienna Convention, supra note 23, article 30(4). More generally on these two provisions in the Vienna Convention, see: Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Martinus Nijhoff, 2009), at 395–411 and Jan Klabbers, “Beyond the Vienna Convention: Conflicting Treaty Provisions,” in The Law of Treaties: Beyond the Vienna Convention, ed. Enzo Cannizzaro (Oxford: Oxford University Press, 2011), at 192–205. See Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed. (Manchester: Manchester University Press, 1984), at 97.

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contain relationship clauses, sometimes called conflict or savings clauses, which seek to provide how treaties and/or provisions with similar subject matter are to interrelate. Such clauses are meant to avoid that treaties covering similar or at least partially overlapping subject matters contradict each other. Therefore their primary objective is the safeguarding of a general coherence of international law.35 Obviously, such a clause is of limited effect where there is only one of the conflicting treaties common to both States. The Vienna Convention has a provision on relationship clauses, Article 30(2): When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provision of that treaty shall prevail. More generally, it has been observed that the “meaning or effect” of relationship clauses can “sometimes be obscure.”36 LOS Convention Article 311(2) of the LOS Convention states: This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.37 Unlike article 30(2) of the Vienna Convention, prima facie article 311(2) works the other way in that it preserves the priority of the LOS Convention as regards other agreements not compatible with it.38 It has been stated that article 311(2) 35 36

37 38

Wolfrum and Matz, supra note 28, at 121. International Law Commission (ILC), “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group, Finalized by Martti Koskenniemi,” UN Doc. A/CN.4/L/682, 13 April 2006, at paragraph 270, available on the website of the ILC at http://www.un.org/law/ilc/index.htm. See generally: Aust, supra note 32, at 225–226 and Villiger, supra note 33, at 404–405. See: Villiger, supra note 33, at 404–405 and Sadat-Akhavi, supra note 28, at 92.

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implies “a measure of priority for the 1982 Convention in the sense that it provides a yardstick against which the compatibility of those agreements is to be measured.”39 The compatibility criterion, however, has been described as having “been formulated rather loosely”40 in article 311(2), being directly linked to the enjoyment of rights by State parties. Moreover, it has been suggested that “[w]hat this means in case an agreement seems in outright conflict with it [the LOS Convention] remains unclear.”41 However, article 311(2) of the LOS Convention is qualified by paragraph 5: “This article does not affect international agreements expressly permitted or preserved by other articles of this Convention.” Thus, the relevant relationship clause for article 234, located in Part XII, is article 237(1): The provisions of this Part are without prejudice to the specific obligations assumed by States under special conventions and agreements concluded previously which relate to the protection and preservation of the marine environment and to agreements which may be concluded in furtherance of the general principles set forth in this Convention. The context of article 237 is that of leaving to other agreements the technical details of obligations to be met by States in furtherance of environmental protection with the goal of the provision being to integrate substantive provisions of marine environmental treaties into the law of the sea.42 Both articles 311(2) and 237(1) recognize that subsequent treaties are important to the development of the law of the sea and that the LOS Convention is essentially a framework document. The relationship clauses strive for reasonable accommodation between treaties. It has been described that what is sought is “a ‘mutually supporting’ role” for the LOS Convention and lex specialis agreements such as the MARPOL and SOLAS Conventions.43 In the context of the IMO, it has been noted that article 237 (with article 311) provides for “the adoption of special rules and regulations.”44 It has also been noted that article 237 is perhaps best understood as an exhortation that treaties should be read together as compatible such that it is unclear on priority.45 39 40 41 42 43 44 45

M.H. Nordquist, S. Rosenne and L. Sohn, United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. V (Dordrecht: Martinus Nijhoff, 1989), at 243. ILC Study Group Report, supra note 36, at paragraph 279. Id. Rosenne and Yankov, supra note 15, at 423. ILC Study Group Report, supra note 36, at paragraph 279. Rosenne and Yankov, supra note 15, at 426. ILC Study Group Report, supra note 36, at paragraph 271.

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The key wording for the purposes here is “[t]he provisions of this Part are without prejudice…to agreements which may be concluded in furtherance of the general principles set forth in this Convention.” This is relevant even though the MARPOL and SOLAS Conventions may fall within the first part of the provision having been concluded prior to the LOS Convention, because the Polar Code amendments, the source of the potential conflict, will come into effect subsequent to the entry into force of the LOS Convention.46 On its face, the wording gives priority to the subsequent agreements, as in article 30(2) of the Vienna Convention. However, the wording that the subsequent agreement in question is to be “in furtherance of the general principles” changes the operation of the provision providing priority to the LOS Convention where a subsequent agreement does not meet this condition.47 Thus, article 237(1) has the same effect for marine environmental agreements adopted subsequent to the LOS Convention, apparent priority for the LOS Convention, as does article 311(2). However, unlike article 311(2) which relies upon compatibility as the litmus test, article 237(1) simply refers to the furtherance of the “general principles…in the Convention.” Given the somewhat vague nature of these words, more latitude may be expected as to when article 237(1) would indeed result in such a priority. Is a State’s right under article 234 captured by the wording ‘general principles’ of the LOS Convention? The uniqueness of the article 234 right may be part of an argument against a positive conclusion that article 237(1) provides priority. In addition, attention may need to be given to the lex specialis rule of interpretation whereby the specific takes priority over the general.48 This does not apply easily here since article 234 is hardly a general rule within the LOS Convention, rather it is an exception to the general. There is no forthright conclusion on the application of article 237(1) to a collision between article 234 coastal State rights and the potential contents of the Polar Code amendments to the MARPOL and SOLAS Conventions, although the better view is to favor the priority of the LOS Convention. MARPOL Article 9(2) of the MARPOL Convention, adopted in 1973 soon after the beginning of the formal negotiations that would lead to the LOS Convention, provides: 46 See supra note 32. 47 See Sadat-Akhavi, supra note 28, at 131 and more generally at 131–132, who concludes at 132 “whenever the performance of special treaties on the protection of the marine environment conflicts with those principles, priority must be given to the [LOS] Convention.” 48 See briefly, Borgen, supra note 27, at 466–467.

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Nothing in the present Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea…, nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction. The first thing of note is that ‘present Convention’ is used throughout the text of MARPOL and does not imply that only the Convention text as it existed in 1973 is without prejudice. Further, although perhaps not as clear, the provision directs that the MARPOL Convention is not to prejudice what in 1973 was the future “nature and extent of coastal State…jurisdiction.” The wording of article 9(2) is further informed by article 9(3): “The term ‘jurisdiction’ in the present Convention shall be construed in the light of international law in force at the time of application or interpretation of the present Convention.” Article 9(2) has been described as ‘unprecedented’ in that it “attempts to establish compatibility of an existing treaty with an agreement that still is under consideration… and clearly demonstrates the priority attributed to the UN Convention on the Law of the Sea from the beginning.”49 Overall, article 9(2) fits the wording of article 30(2) of the Vienna Convention such that, in this case, prima facie the LOS Convention has priority. However, taking into account article 237(1) of the LOS Convention and the general recognition of the competence of the IMO in the field of enhancing protection of the marine environment from vessel-source pollution advanced by the MARPOL Convention, the ‘specific obligations’ on flag and coastal States within the MARPOL Convention may be said to have prima facie priority in a case where there is conflict with the LOS Convention. Arguably, however, this does not affect the jurisdiction exercised by a coastal State pursuant to article 234. It is an interesting question whether article 9(2) of the MARPOL Convention yields priority to a treaty to which the United States is not a party, although the provision can be read as meaning that the MARPOL Convention yields to customary international of the sea where there is a conflict and that article 234 is part of customary international law.50 SOLAS The treaty relationship clause in the 1974 SOLAS Convention deals only with treaties in force prior to completion of the SOLAS Convention and indicates 49

Wolfrum and Matz, supra note 28, at 41. See also: Sadat-Akhavi, supra note 28, at 115–117. 50 See supra note 13.

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that where conflict occurs, the 1974 SOLAS Convention prevails.51 It is the case that much of what is covered in the SOLAS Convention is far removed from the LOS Convention. Where intersection has been seen as possibly occurring is concerning safety of navigation. SOLAS, Chapter 5, Regulations 10 and 11, which concern ships’ routeing and ship reporting systems, contain relationship clauses. The wording is substantially the same in both: All adopted ships’ routeing systems and actions taken to enforce compliance with those systems shall be consistent with international law, including the relevant provisions of the 1982 United Nations Convention on the Law of the Sea.52 The above Regulations plus Regulation 12 concerning vessel traffic services and Regulation 19–1 concerning long-range identification and tracking of ships all have an additional clause which is also a treaty relationship clause: Nothing in this regulation or its associated guidelines and criteria shall prejudice the rights and duties of Governments under international law or the legal regimes of straits used for international navigation and archipelagic sea lanes.53 A leading treaty law authority, referring to this wording in a different treaty, indicates that this means that the treaty in question is subordinate to an earlier one.54 The provision here, however, gives a priority to any rights and duties existing under ‘international law’ whether or not they are in treaties. This wording in the SOLAS Convention, Regulations 10 and 11 was raised by Canada as a legal justification that its rights under article 234 of the LOS Convention takes precedence over the relevant provisions of the SOLAS Regulations and that nothing in the SOLAS Chapter 5, Regulations ‘prejudice’ its rights under article 234.55 The context was the enactment by Canada of a compulsory reporting regime for vessels within its 200-nm zone adjacent to the Arctic archipelago (NORDREG) and the reaction by several States, most 51 52 53

SOLAS Convention, supra note 4, Article VI(c). Id., Chapter 5, Regulation 10, paragraph 10 and Regulation 11, paragraph 8. Id., Chapter 5, Regulation 10, paragraph 10; Regulation 11, paragraph 9; Regulation 12, paragraph 5; and Regulation 19–1, paragraph 1. 54 Aust, supra note 32, at 220. 55 Canada, “Comments on Document MSC 88/11/2,” IMO Doc. MSC/88/11/3, 5 October 2010, paragraph 5.

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notably the United States, that the Canadian measures needed to be approved within IMO.56 No rebuttal was raised publicly respecting Canada’s assertion as attention focused on whether Canada’s legislation fell within the scope of article 234.57 A second example from the SOLAS Convention is in Chapter 11-2, “Special Measures to Enhance Maritime Security,” where the ‘Application’ provision, Regulation 2, paragraph 4, provides: “Nothing in this chapter shall prejudice the rights or obligations of States under international law.”58 While not a conflicting treaties clause per se, nevertheless the effect is that other treaties binding on the parties would take precedence over the contents of Chapter 11-2.

Canada’s Declarations Respecting the MARPOL Convention

When Canada became a party to the Protocol of 1978 relating to the 1973 MARPOL Convention, it made two declarations ‘based on’ article 234 of the LOS Convention. The first declared that Canada considers it has the right in accordance with international law to adopt and enforce special non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered waters where particularly severe climatic conditions…create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause harm to or irreversible disturbance of the ecological balance.59

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57

58 59

See generally: T.L. McDorman, “National Measures for the Safety of Navigation in Arctic Waters: NORDREG, Article 234 and Canada,” in The Law of the Sea Convention: US Accession and Globalization, eds. Myron H. Nordquist, John Norton Moore, A.H.A. Soons and Kak-so Kim (Leiden: Martinus Nijhoff, 2012), at 409–424 and Bartenstein, supra note 17, at 85–109. See T.L. McDorman, “Canada, the United States and International Law of the Sea in the Arctic Ocean,” in Polar Oceans Governance in an Era of Environmental Change, eds. Tim Stephens and David VanderZwaag (Cheltenham, UK: Edward Elgar, 2014). SOLAS Convention, supra note 4, Chapter 11-2, Regulation 2, paragraph 4. Canada, Declarations at the time of Accession, 16 November 1992, in IMO, Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or its Secretary-General Performs Depositary or Other Functions, as of September 2012 (London), at 121 and reproduced in Roach and Smith, supra note 24, at 491.

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Canada’s second declaration indicated that becoming a party to the MARPOL 1973/1978 “is without prejudice to such Canadian laws and regulations as are now or may in the future be established in respect of arctic waters within or adjacent to Canada.”60 The purpose of this declaration, when read together with the first declaration, is the assertion that Canada’s article 234 rights take precedence over the rights and obligations in the MARPOL Convention. It might have been the case that Canada felt the need to make such a declaration because of the uncertainty of application of the relationship clause in the MARPOL Convention and uncertainty over the application of the relationship clauses in the LOS Convention to which neither Canada nor the United States was a party in 1992. The Canadian declaration provides a clarity that cannot be said to be so easily derived from the relevant relationship clauses. It has been noted that [t]he intention as to the relationship between treaties may be expressed after the adoption of the treaty. States may declare their intention regarding the relationship between one treaty and other treaties by means of making reservations or declarations when signing or ratifying the treaty.61 The declarations of Canada are best understood as interpretative declarations defined by a leading authority “as a unilateral declaration,…, made by a state whereby it purports to clarify the meaning or scope attributed to the treaty or certain of its provisions.”62 It has been noted that if other parties do not object to an interpretative declaration, the declaration may be considered to have been tacitly accepted.63 While ten European countries (Belgium, Denmark, France, Germany, Greece, Italy, the Netherlands, Portugal, Spain and the United Kingdom) in a single communication and the United States commented on the Canadian declarations,64 they did not object to the purpose of the declarations. The European countries noted “that the laws and regulations contemplated in article 234 shall have due regard to navigation and the protection and 60 Id. 61 Sadat-Akhavi, supra note 28, at 208. 62 Aust, supra note 32, at127. 63 Id. 64 United States, “Communication to the Secretary-General of the IMO,” 18 November 1993, and “Communication from Belgium, Denmark, France, Germany, Greece, Italy, the Netherlands, Portugal, Spain and the United Kingdom,” in IMO, Status of Conventions, supra note 59, at 121 and reproduced in Roach and Smith, supra note 24, at 491–492.

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preservation of the marine environment based on the best available scientific evidence.”65 As explained by two authors “[b]ecause Canada’s declarations did not follow completely the wording of article 234,…the United States filed…its understanding of the permissible scope of Canada’s declarations.”66 The same wording as in the European statement also appears in the U.S. communication: “Canada may enact and enforce only those laws…in respect of foreign shipping in the arctic waters…that have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.”67 The reasonable conclusion is that the declarations ensure that, for Canada at least, laws and regulations that meet the conditions of article 234 are not prohibited or incompatible with the MARPOL Convention. Further, in reverse, what was in the MARPOL Convention in 1992 and what may be added through amendments to its annexes do not act as a legal bar to Canada enacting and enforcing legislation consistent with article 234. More generally, as described above, Canada’s declaration on treaty priority is consistent with a reading of the relationship clauses in the LOS Convention and the MARPOL such that, perhaps, States did not object to Canada’s declaration as it merely defined the relationship that existed. A peculiarity resulting from the Canadian declarations is that the United States accepts that the LOS Convention, to which it is not a party, or at least article 234, has priority over the MARPOL Convention. As noted above, this may be because of an acceptance by the United States that article 234 is part of customary international law68 and the assertion in the Canadian declaration that “Canada considers that it has the right in international law to adopt and enforce special non-discrimination laws…for…ice-covered waters” (emphasis added).

The Polar Code

While unlikely, it is necessary to consider the possibility of a relationship clause being adopted that expressly indicates that the Polar Code amendments to the MARPOL and SOLAS Conventions have priority over the LOS Conven­ tion or priority specifically regarding the rights of coastal States set out in 65 “Communication from Belgium, et al.,” supra note 59, at 121. 66 Roach and Smith, supra note 24, at 491. 67 United States, “Communication,” supra note 59, at 121. 68 See supra note 13.

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article 234 of the LOS Convention. If well drafted, such a provision would result in the truncation of rights under article 234 for those States that are a party to the LOS Convention and the Polar Code amendments to the MARPOL and SOLAS Conventions. The Current Relationship Provision The above-noted proposal by Canada and the Russian Federation to have in the Polar Code wording that “coastal States may retain local navigation rules and regulations”69 is not in the most recent correspondence group draft of the Polar Code. It has apparently encountered either opposition or insufficient support. What is in the 2013 correspondence group draft is paragraph 8 in the preamble: Nothing in this Code shall be taken as conflicting with the United Nations Convention on the Law of the Sea, 1982, the Antarctic Treaty System and other international instruments applicable to polar waters.70 While the paragraph is not in square brackets, there is a note that the entire preamble will be revisited once there is a draft text. In other words, the relationship clause may be one of the last things to be discussed. The fate of the earlier Canada-Russia proposed clause suggests this may be a difficult issue. It seems clear from the ICS “Position Paper on Arctic Shipping”71 that they can be expected to have strong views opposing the relationship clause to the extent that it privileges article 234 rights. A Norwegian writer has surmised that there are likely “significant differences in opinion among the participating states” on the article 234-Polar Code relationship issue.72 Paragraph 8 above is relatively clear that there is to be no conflict between the Polar Code and the LOS Convention with the LOS Convention prevailing. However, the clause can be read as an interpretative clause in that every effort is to be made to avoid conflict rather than the unambiguous situation that the LOS Convention has priority and trumps any provision to the contrary in the Polar Code. The better reading would be that unless the Polar Code directly indicates that rights under article 234 are removed or superceded, that the 69 See supra notes 19–20. 70 “Draft International Code [of Safety] For Ships Operating in Polar Waters,” Annex I, paragraph 8 to Report of the Correspondence Group (submitted by Norway), IMO Doc. DE57/11/6, 14 December 2012. 71 See: ICS, supra note 21. 72 Fauchald, supra note 25, at 82.

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Polar Code does not interfere with the rights of coastal States that exist pursuant to article 234 of the LOS Convention. The current clause may be problematic for the United States as it directly gives priority to a treaty to which the United States is not a party, although, as noted above, the United States has not had difficulty with this issue in the past where the focus was specifically article 234. While most treaty relationship clauses are in the body of treaties and not preambles, this does not in itself undermine the importance or relevance of the clause since relationship clauses provide direction in interpretation rather than a substantive obligation.73 The query respecting the above preambular provision is, if it is agreed upon, where is it to be placed in the currently envisioned structure of the Polar Code. The most likely location is in the so-called ‘general provisions’ which may not be amendments to the SOLAS or MARPOL Conventions and thus there may be uncertainty on the legal status of the general provisions. Without a Relationship Clause If the Polar Code goes ahead without a relationship provision like paragraph 8 or a clause that is buried in non-legally binding text, reference may be necessary to the above discussions respecting the MARPOL, SOLAS and the LOS Conventions. As already noted, the Canadian declarations to MARPOL both confirmed what the relationship clauses indicate and ensured that the priority of article 234 rights are protected from subsequent developments to the MARPOL Convention such as amendments to the annexes as envisioned as part of the implementation of the Polar Code. Other States with an interest in article 234 rights may be comfortable that the relationship clause wording in the MARPOL and LOS Conventions yields priority to article 234 and/or may wish to consider a declaration similar to that of Canada. While it is the case that declarations are usually made/formulated when a State becomes a party to a convention, the subsequent adoption of amendments is a recognized opportunity for declarations.74 73 Sadat-Akhavi, supra note 28, at 86 comments: “the term ‘conflict-resolving clause’ should…be understood as embracing not only articles in treaties but also statements in preamble and annexed texts.” 74 In 2008 when the United States ratified the 1997 Protocol to Amend the MARPOL Convention, it attached two understandings and a declaration regarding the operation of amendments made by the Protocol. See: United States, Instrument of Ratification, 8 October 2008, in IMO, Status of Conventions, supra note 59, at 165. As the amendments

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Respecting the amendments to the SOLAS Convention to implement the Polar Code, a view from the United States has already noted that without a relationship clause to the contrary, the SOLAS Convention has a priority over article 234 of the LOS Convention.75 This is presumably because the United States is not a party to the LOS Convention but could also be based on an understanding of article 237(1) of the LOS Convention that either certain aspects of the SOLAS Convention are not inconsistent with the ‘general principles’ of the LOS Convention or that IMO conventions have priority of application in the case of conflicts with the marine environmental sections of the LOS Convention. In the face of these views, a State wishing to preserve its article 234 rights may wish to make a declaration at the time of adoption of the SOLAS Convention amendments implementing the Polar Code similar to that made by Canada respecting the MARPOL Convention. As noted above, the legal effectiveness of such a declaration may depend on the reaction of other States. Conclusion The potential for conflict between a mandatory Polar Code adopted by States within the IMO that establishes measures for the safety of vessels and marine pollution from vessels in polar waters and the right of a coastal State to unilaterally adopt and enforce laws related to marine environmental protection set out in article 234 has been noted on several occasions. This contribution has looked at the relationship clauses that exist in the relevant conventions – the LOS, SOLAS and MARPOL Conventions – that may be referenced in resolving any conflict. In addition, reference has been made to Canada’s declaration to the MARPOL Convention, which clearly articulates its view of the priority of article 234 vis-à-vis obligations in the MARPOL Convention. It may be the case that the completed Polar Code will be welcomed by all States as sufficiently robust such that no State will be concerned about the possibility of either continuing with or adopting in the future laws and regulations that are more protective of the marine environment than those in the Polar

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in question were to the text of the MARPOL Convention and not the annexes, the tacit amendment procedure was not available. MARPOL Convention, supra note 5, article 16 (2)(f)(i). Vienna Convention, supra note 23, article 39 makes it clear that amendments to a treaty are subject to the rules regarding reservations and similar instruments. Roach and Smith, supra note 24, at 494.

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Code and thus article 234 will be rendered redundant. More realistically, some States will be interested in having the option to rely upon article 234 for the protection of its local marine environment in ice-covered waters in addition to supporting the Polar Code, in which case the relationship between article 234 and the Polar Code will be important. Postscript In May 2014, the Maritime Safety Committee (MSC) approved a draft new Chapter 14 for the SOLAS Convention “Safety Measures for Ships Operating in Polar Waters.” Regulation 2, paragraph 5 of draft Chapter 14 reads: “Nothing in this chapter shall prejudice the rights or obligations of States under international law.” As noted above at footnote 58, this wording tracks that in Chapter 11-2, Regulation 2, paragraph 4. While Canada had proposed different language (see: Canada, “Amendments to the International Convention for the Safety of Life at Sea,” IMO Doc. MSC 93/10/123, 25 March 2014), this document makes clear Canada’s view that the adopted wording operates as a savings or relationship clause.

chapter 8

The United States and Arctic Straits The Northwest Passage and the Bering Strait Donald R. Rothwell* Introduction The legal scholarship of Donat Pharand is not only closely connected with the Canadian Arctic, but also the diplomatic and political history of the relations between Canada and the United States over the Arctic, and especially Canada’s Arctic waters.1 As such, Pharand throughout much of his work not only traced the Canada/U.S. relationship with respect to the Arctic, but also assessed and considered the U.S. position with respect to the Arctic and in particular the legal position regarding the freedom of navigation through Arctic waters. Much of that scholarship was dominated by the Northwest Passage and the SS Manhattan voyage of 1969, and subsequently the USCGC Polar Sea voyage in 1985. While there were legal controversies in the Russian Arctic between the United States and Soviet Russia,2 they were not within the direct domain of Pharand’s analysis.3 While the Northwest Passage has since the 1970s been the focal point of analysis with respect to Arctic navigational rights and freedoms vis-à-vis Canada and the United States, the effects of climate change and changes in navigational movements have in recent years also drawn attention to the Bering Strait. The importance of the Bering Strait to Arctic navigation was * Professor and Deputy Dean, ANU College of Law, Australian National University, Canberra, Australia. 1 See especially: Donat Pharand, Canada’s Arctic Waters in International Law (Cambridge: Cambridge University Press, 1988). 2 As to these navigational issues, see: R.D. Brubaker, The Russian Arctic Straits (Leiden: Martinus Nijhoff, 2005); Leonid Timchenko, “The Northern Sea Route: Russian Management and Jurisdiction over Navigation in Arctic Seas,” in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, eds. Alex G. Oude Elferink and Donald R. Rothwell (The Hague: Martinus Nijhoff, 2001), 269–291; and Willy Østreng, “The Northern Sea Route: a New Era in Soviet Policy?,” Ocean Development and International Law 22 (1991): 259–287. 3 See, however, Erik Franckx, Maritime Claims in the Arctic: Canadian and Russian Perspectives (Dordrecht: Martinus Nijhoff, 1993), who through his analysis of Canadian and Russian claims in the Arctic was able to consider the U.S. response to the distinctive positions of Canada and Russia.

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highlighted by the Arctic Council in its Arctic Marine Shipping Assessment 2009 Report (AMSA Report).4 This Report, for the first time, sought to comprehensively assess the status of Arctic shipping and gave particular attention to Arctic navigational routes considering the Northwest Passage and Northeast Passage (Northern Sea Route), but also the Bering Strait, and in particular considered a number of regional future scenarios.5 Not only did the AMSA Report highlight the navigational and strategic importance of the Bering Strait, but also the role of the United States in its ongoing regulation and management. This contribution will compare and contrast the U.S. approach to the two ‘North American’ Arctic straits – the Northwest Passage and the Bering Strait. This will highlight the differences between the long-standing U.S. position in regards to Canadian regulation and management of the Northwest Passage and its position in the case of the Bering Strait. To begin, brief consideration will be given to the navigational framework for international straits under the law of the sea, followed by an overview of U.S. Arctic policy and the approaches that it brings to bear with respect to Arctic navigation. Separate consideration will then be given to the Northwest Passage and the Bering Strait, before providing some concluding remarks.

The Law of the Sea and Straits

First through the regime of innocent passage,6 and then the transit passage regime,7 the law of the sea has sought to accommodate the special circumstances of straits and their critical role as maritime highways that connect adjoining oceans and high seas areas. One of the greatest challenges at the Third United Nations Conference on the Law of the Sea was ensuring that the rights and interests of coastal States were counterbalanced with the equivalent rights and interests of maritime States. Part III of the 1982 United Nations Convention on the Law of the Sea (LOS Convention)8 with its regime of straits used for international navigation reflects a pivotal compromise that has proven to be central to the maintenance and development of international trade through straits around the world. 4 Arctic Council, Arctic Marine Shipping Assessment 2009 Report (Tromsø: Arctic Council, 2009). 5 Id., at 106–109. 6 Convention on the Territorial Sea and Contiguous Zone, 29 April 1958, 516 U.N.T.S. 206, articles 14–23. 7 U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397, articles 17–32. 8 Id.

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The LOS Convention’s regime of straits used for international navigation can be traced to the International Court of Justice’s 1949 decision in the Corfu Channel Case.9 In the absence of a multilateral convention on the law of the sea or a specific treaty dealing with the Corfu Channel, the Court was required to determine the status of the waters before assessing which legal regime applied. The Court sought to develop a legal test to identify those bodies of water that presented the characteristics of a strait and which were also used by international shipping. The Court noted: …in the opinion of the Court the decisive criteria is rather its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation.10 The wording suggests both a geographical and functional element. The geographical element relates to a strait being a body of water which lies between two areas of land, either continental land masses,11 a continent and an island,12 or two islands.13 In the terminology of article 37 of the LOS Convention, an international strait connects a part of the high seas/exclusive economic zone (EEZ) to another part of the high seas/EEZ.14 In the Corfu Channel Case, the International Court observed that it was not ‘decisive’ that the Corfu Channel was not a necessary route between two parts of the high seas, but only an alternative route of passage between the Aegean and Adriatic Seas. The title of Part III of the LOS Convention, “Straits Used for International Navigation,” raises the issue of the second element required before a body of water can be characterized as an international strait. This functional element is clearly drawn from the Corfu Channel Case, where the Court placed emphasis on the strait being one that was “used for international navigation.”15 While there was no analysis as to what volume of navigation through a strait would be required to meet the usage requirement, reference was made to the volume of navigation through the Corfu Channel between 1936–1937 which assisted the Court in determining that it had been “a useful route for international 9 10 11 12 13 14 15

Corfu Channel Case (United Kingdom v. Albania) [1949] I.C.J. Reports 4. Id., at 28. An example is the Bering Strait separating continental Asia and North America. The Dover Strait lies between the continent of Europe and the island of Great Britain. The Cook Strait separates the North and South Islands of New Zealand. LOS Convention, supra note 7, article 37. Corfu Channel Case, supra note 9, at 28.

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maritime traffic.”16 While this functional element is clearly a feature of the LOS Convention, it remains unclear what level of international navigation is required for a strait to be appropriately classified as an international strait. Nevertheless, it is doubtful whether infrequent or irregular use of a strait would suffice to meet the functional criterion. Likewise, the strait must have been used by foreign-flagged vessels and not only by through or cross-strait local vessel traffic. One matter upon which the LOS Convention is silent is whether any distinction should be made between surface navigation and sub-surface navigation of a strait. This has particular relevance in the Arctic due to the evidence of submarine navigation throughout the region, especially during the Cold War.17 However, as the LOS Convention does not seek to distinguish between various types of navigation, there is nothing in principle that would bar sub-surface submarine navigation from also being taken into account in determining whether the strait was used for that purpose.

The United States and Arctic Navigation

While it is indisputable that the United States is an Arctic nation, Arctic issues have historically had a low profile in the United States. While the Alaskan Arctic has been appreciated for its strategic significance, especially during the Cold War,18 the region has generally attracted disinterest in Washington, prompting one commentator to observe in 2008 that: “Arctic issues are largely ignored at senior levels in the U.S. State Department and the U.S. National Security Council.”19 Nevertheless, the Unites States has had a long-standing interest in navigation within the Arctic Ocean that is not only a legacy of the Cold War and the extensive activity of nuclear submarines in the region, but

16 17

18 19

Id. See: Katarzyna Zysk, “Military Aspects of Russia’s Arctic Policy: Hard Power and Natural Resources,” in Arctic Security in an Age of Climate Change, ed. James Kraska (Cambridge: Cambridge University Press, 2011), 85–106, at 91–94; David W. Titley and Courtney C. St. John, “Arctic Security Considerations and the U.S. Navy’s ‘Arctic Roadmap’,” in id., 267– 280 at 274–275; and more generally for incidents during the Cold War, see: W. Harriet Critchley, “Polar Deployment of Soviet Submarines,” International Journal 39 (1984): 828–865. Shelagh D. Grant, Polar Imperative: A History of Arctic Sovereignty in North America (Vancouver: Douglas & McIntyre, 2010), at 286–288. Scott G. Borgerson, “Arctic Meltdown: The Economic and Security Implications of Global Warming,” Foreign Affairs 87 (2008): 63, at 71.

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also because of the importance of ensuring maritime access to Alaska and its ports for both security and trade, which are central to Alaska’s economy. Consistent with the gradual awakening of global awareness of the Arctic, U.S. government agencies have in recent years identified the need for appropriate policy responses to be developed as a result of changing circumstances. Two recent initiatives of the Bush and Obama Administrations highlight the increased attention being given to Arctic affairs and reinforce the importance of Arctic navigational rights and freedoms to the United States. The joint National Security Presidential Directive (NSPD)/Homeland Security Presi­ dential Directive (HSPD) of 9 January 2009 titled “Arctic Region Policy”20 sought to update U.S. Arctic-wide policy for the first time since 1994. The Policy recognizes that the United States “has broad and fundamental national security interests in the Arctic region and is prepared to operate either independently or in conjunction with other states to safe-guard these interests,”21 consistent with U.S. obligations under treaties, customary international law, and the law of the sea.22 With respect to U.S. National Security and Homeland Security interests, the Directive asserts that: Freedom of the seas is a top national priority. The Northwest Passage is a strait used for international navigation, and the Northern Sea Route includes straits used for international navigation; the regime of transit passage applies to passage through those straits. Preserving the rights and duties relating to navigation and overflight in the Arctic region supports our ability to exercise these rights throughout the world, including through strategic straits.23 The Directive also underlines the importance of maritime transportation in the Arctic for the United States and the need to develop new measures to improve the safety and security of maritime transportation, including ships routeing and reporting, traffic separation schemes, and vessel management schemes in what are termed “Arctic chokepoints.”24 20

21 22 23 24

United States, “Arctic Region Policy,” National Security Presidential Directive/NSPD – 66; Homeland Security Presidential Directive/HSPD – 25, 9 January 2009, at http://www.fas .org/irp/offdocs/nspd/nspd-66.htm. Id., para. III.B.1. Id., para. I.B. Id., para. III.B.5. Id., para. III.F.3. These overarching policy considerations for the United States in the Arctic are also reflected in a 2011 Department of Defense publication: Depart­ment   of Defense, “Report to Congress on Arctic Operations and the Northwest Passage”

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More recently, the Obama Administration released the 2013 “National Strategy for the Arctic Region”25 which focuses on advancing U.S. security interests in the Arctic, developing “Responsible Arctic Region Stewardship” and strengthening international cooperation. The Strategy acknowledges the changing conditions in the Arctic, including that the Arctic Ocean is becoming more navigable, which in turn is increasing interest in the Northwest Passage.26 Under the general heading of advancing U.S. security interests, the Strategy provides that the United States will seek to: Preserve Arctic Region Freedom of the Seas – The United States has a national interest in preserving all of the rights, freedoms and uses of the sea and airspace recognized under international law. We will enable prosperity and safe transit by developing and maintaining sea, under-sea, and air assets and necessary infrastructure. …Existing international law provides a comprehensive set of rules governing the rights, freedoms, and uses of the world’s oceans and airspace, including the Arctic. The law recognizes these rights, freedoms, and other uses for commercial and military vessels and aircraft. …We will also encourage other nations to adhere to internationally accepted principles.27 The Strategy goes on to identify Guiding Principles which include “international legal principles of freedom of navigation…and other uses of the sea related to these freedoms, unimpeded lawful commerce, and the peaceful resolution of disputes.”28 While the 2013 National Strategy for the Arctic Region has been the subject of some criticism in the United States for its lack of specifics, including the absence of a budgetary plan,29 its main interest for the purposes of this analysis lies in its confirmation of the U.S. approach to freedom of navigation in the Arctic Ocean which has consistently been identified as a key U.S. strategic 25

26 27 28 29

(OUSD (Policy): May 2011), at http://www.defense.gov/pubs/pdfs/tab_a_arctic_report _public.pdf. President of the United States, “National Strategy for the Arctic Region” (Washington: White House, May 2013), at http://www.whitehouse.gov/sites/default/files/docs/nat _arctic_strategy.pdf. Id., at 5. Id., at 6–7. Id., at 10. Lara Jakes, “Critics call White House strategy short on specifics, funding as United States moves forward in Arctic,” Associated Press Newswires, 13 May 2013, at http://www .bigstory.ap.org/article/critics-lukewarm-us-plans-arctic.

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interest. The U.S. Coast Guard has been on the front line of recent U.S. engagement in the Arctic Ocean and in 2013 it released its “Arctic Strategy,” detailing a number of initiatives for the Bering Strait and calling for improved awareness of Arctic issues, better regional governance and partnership building.30 The 2013 National Strategy and the Coast Guard’s “Arctic Strategy” have promoted greater U.S. engagement in a range of Arctic issues extending from the Arctic Council to the challenges being faced by Alaska as it deals with a rapidly changing environment.31 A common theme has been the need for greater U.S. cooperation with the other Arctic states.

Northwest Passage32

The Northwest Passage is a series of connected straits that weave through the islands that make up the Canadian Arctic Archipelago. From the east, it follows the North Atlantic up through Davis Strait through the archipelago and into the Beaufort Sea which then provides access to the Chukchi Sea and the Bering Strait. While in theory there are many potential navigation routes within the Canadian Arctic Archipelago, the reality is that due to the presence of heavy ice and the shallow draught in some of the straits, there have only been a handful of viable combinations of straits that have enabled commercial shipping to pass through the Northwest Passage. Pharand has identified seven routes that have been used for vessel navigation of the Northwest Passage.33 Manhattan The status of the Northwest Passage as a shipping route had legally been uncontroversial for much of the twentieth century. This was primarily due to 30

31 32

33

United States Coast Guard, “Arctic Strategy,” (Washington: United States Coast Guard, May 2013), available at http://www.uscg.mil/seniorleadership/DOCS/CG_Arctic _Strategy.pdf. See, for example: Heather A. Conley, et al., The New Foreign Policy Frontier: U.S. Interests and Actors in the Arctic (Washington: Centre for Strategic & International Studies, 2013). The foundation of the analysis that follows is taken from Donald R. Rothwell, The Polar Regions and the Development of International Law (Cambridge: Cambridge University Press, 1996), 191–200. See also the discussion in Donald R. Rothwell, “The Canadian – U.S. Northwest Passage Dispute: A Reassessment,” Cornell International Law Journal 26 (1993): 331–372. Donat Pharand, “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development and International Law 38 (2007): 3, at 29. See also: R.K. Headland, “Ten Decades of Transits of the Northwest Passage,” Polar Geography 33 (1–2) (2010): 1, at 2, 11.

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the lack of interest that had been shown for commercial navigation and the challenges posed to such navigation by the ice conditions. While the United States had some interest in the Northwest Passage during the early part of the twentieth century, this was a lesser order issue compared to Arctic sovereignty and ultimately the threat posed by the Soviet Union across the Arctic Ocean during the Cold War.34 This changed in 1969 with the voyage of SS Manhattan. Manhattan was an ice-strengthened supertanker that was intentionally sent through the Northwest Passage by its U.S. owners to demonstrate that such a vessel was capable of year-round sailings between Alaska and the U.S. east coast. The voyage at that time was only the fifth recorded transit of the North­ west Passage and the first since the end of World War II by a non-government vessel.35 Despite the fact that there were Canadian government officials on board during the voyage and that Manhattan was accompanied by the Canadian Coast Guard vessel John A. Macdonald,36 the voyage raised multiple issues for the Canadian government.37 Ultimately, it was the second proposed voyage of Manhattan, scheduled to take place in 1970 and again accompanied by John A. Macdonald, that raised further public concerns about the status of the Northwest Passage and related fears about Canadian Arctic sovereignty. The United States was perceived, rightly or wrongly, as ignoring Canadian sovereignty by these voyages through ‘Canadian waters’ and public pressure grew for the Government to affirm Canada’s Arctic sovereignty and to ensure that any future voyages did not pose a threat to that sovereignty.38 In the wake of the Manhattan voyage, Canada adopted a number of measures including enactment of the Arctic Waters Pollution Prevention Act,39 extension of the Canadian territorial sea from three to 12 nautical miles (nm),40 and modification of Canada’s acceptance of the compulsory jurisdiction of the International 34 Grant, supra note 18, at 247–338. 35 See discussion of the voyage in T.C. Pullen, “What Price Canadian Sovereignty?,” Proceedings of the US Naval Institute 113(9) (1987): 66, at 69–71. Pharand observed that the USCG ships Storis, Spar and Bramble (all icebreakers) completed transits in 1957. Pharand, supra note 33, at 31. 36 Pullen, id., at 71. 37 For his initial review, see: Donat Pharand, The Law of the Sea of the Arctic with Special Reference to Canada (Ottawa: University of Ottawa Press, 1973), at 55–57. 38 See discussion in Maxwell Cohen, “The Arctic and the National Interest,” International Journal 26 (1970): 52, at 67–68. 39 Canada, Arctic Waters Pollution Prevention Act, Statutes of Canada 1969–1970, c. 47. 40 Act to Amend the Territorial Sea and Fishing Zones Act, Statutes of Canada 1969–1970, c. 43, Section 3.

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Court of Justice so as to place a bar on any attempt by the United States to challenge Canada’s response before the Court.41 Canada’s actions, which took place prior to the commencement of the Third United Nations Conference on the Law of the Sea, were not welcomed by the United States. The Department of State asserted that [i]nternational law provides no basis for these proposed unilateral extensions of jurisdiction on the high seas, and the United States can neither accept or acquiesce in the assertions of such jurisdiction.42 Particular concern was raised respecting the impact of these actions upon freedom of navigation.43 Polar Sea Further controversy arose over the status of the Northwest Passage between Canada and the United States in 1985 when it was announced that USCG Polar Sea would sail through the Passage from east to west as part of a repositioning of the vessel from Greenland to the U.S. west coast. On 21 May 1985, the U.S. Embassy in Ottawa informed the Canadian Department of External Affairs of the proposed voyage but did not seek permission for the voyage to take place. It was observed in a démarche that [t]he United States considers that this transit by the icebreaker Polar Sea will be an exercise of navigational rights and freedoms not requiring prior notification. The United States appreciates that Canada may not share this position.44 The U.S. démarche was careful to state that an invitation to Canada for its officials to be “on-board participants” during the transit of Polar Sea was not “inconsistent with its juridical position” and that Canadian 41

42

43 44

See: Canada, Declaration Recognizing as Compulsory the Jurisdiction of the Court, 7 April 1970, International Court of Justice, Yearbook 1969–1970 (The Hague: 1970), at 55–56 and 9 I.L.M. (1970): 598–599. United States, “Department of State Statement on Government of Canada’s Bills on the Limits of Territorial Sea, Fisheries and Pollution,” 15 April 1970, reprinted in 9 I.L.M. (1970): 605. Id. See also: Ashley Roach and Robert W. Smith, Excessive Maritime Claims, 3rd ed. (Leiden: Martinus Nijhoff, 2012), at 319. United States, Démarche, 21 May 1985, reprinted in id., at 320.

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participation in the transit would likewise not be inconsistent with its juridical position.45 Following a response in which Canada made clear that the “waters of the Arctic Archipelago, including the Northwest Passage, are internal waters of Canada and fall within Canadian sovereignty,”46 the United States responded on 24 June by observing that it “did not share this view” and made clear that while it was pleased to invite Canadian participation in the transit, “it has not sought the permission of the Government of Canada, nor has it given notification of the fact of the transit.”47 At the time, the Canadian Minister for External Affairs, Joe Clark, commented in the House of Commons that the voyage “does not compromise in any way the sovereignty of Canada over our northern waters, or affect the quite legitimate differences of views that exist between Canada or the United States on that question.”48 Polar Sea completed its transit of the Northwest Passage between 1–11 August 1985. In September, following a comprehensive review of Canadian Arctic Policy, Clark announced to the Canadian Parliament six new initiatives that were designed to clarify Canada’s legal position with respect to the region. These initiatives included the declaration of baselines around the islands that make up the Canadian Arctic Archipelago, new legislation to enforce Canadian civil and criminal law in the waters enclosed within the baselines, and talks with the United States on cooperation respecting Arctic waters.49 Agreement on Arctic Cooperation The 1988 Agreement on Arctic Cooperation50 between Canada and the United States is often interpreted as being closely linked to the events of 1985 associated with the Polar Sea voyage and Canada’s response. The Agreement focusses on the shared interest of both countries in research conducted during icebreaker navigation off their Arctic coasts and commits both governments to facilitating such navigation and to sharing research information arising from such voyages. The Agreement also deals with the legal status of the Northwest Passage in article 3 which provides: 45 Id., at 321. 46 Canada, Note, 11 June 1985, reprinted in id., at 321. 47 United States, Note, 24 June 1985, reprinted in id., at 322. 48 Canada, House of Commons, Debates, 20 June 1985, at 6043. 49 Canada, House of Commons, Debates, 10 September 1985, at 6463. 50 Agreement between Canada and the United States on Arctic Cooperation, 11 January 1988, 1852 U.N.T.S. 59.

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The Government of the United States pledges that all navigation by U.S. icebreakers within waters claimed by Canada to be internal will be undertaken with the consent of the Government of Canada. However, as both Pharand and McDorman have separately noted, the consent provision needs to be read in the context of how the Agreement was framed around cooperation for the purposes of research and that as there is no right under international law for foreign vessels to conduct research within the waters of another state, the consent provision became necessary so as to acknowledge this core entitlement of Canada under international law.51 Even if the United States had maintained that any transit of the Northwest Passage by its Coast Guard icebreakers was in fact an exercise of transit passage through an international strait, permission would still have been required to conduct research because marine scientific research is not a right that is enjoyed by foreign-flagged vessels in transit passage.52 The 1988 Agreement sought to maintain the essential position of both parties with respect to their prior interpretations of the law of the sea when in article 4 it was provided that [n]othing in this agreement of cooperative endeavour between Arctic neighbours and friends nor any practice thereunder affects the respective positions of the Governments of the United States and of Canada on the Law of the Sea in this or other maritime areas or their respective positions regarding third parties. At a press conference involving Canadian Minister for External Affairs, Joe Clark, and the U.S. Secretary of State, George Shultz, that followed the conclusion of the Agreement, it was apparent that both governments were of the view that their positions regarding sovereignty over the Northwest Passage, and particularly the U.S. position as to whether consent was required for transit by U.S. military vessels, had not changed as a result of the Agreement.53 51 Pharand, supra note 33, at 39–40 and Ted L. McDorman, Salt Water Neighbors: International Ocean Law Relations between the United States and Canada (Oxford: Oxford University Press, 2009), at 250. 52 LOS Convention, supra note 7, article 40 requires that foreign ships seek prior authorization to conduct marine scientific research during transit passage. 53 Joint Press Conference, 11 January 1988, reprinted in Roach and Smith, supra note 43, at 325. See also Pharand, supra note 33, at 39–40.

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The first request by the United States for an icebreaker transit conducted consistent with the 1988 Agreement occurred in October 1988 when consent was sought for transit of USCG Polar Star. In a note from the U.S. Embassy in Ottawa, the United States expressly sought the consent of Canada for the transit during which it was made clear that marine scientific research would be conducted.54 It was also made clear that Polar Star would operate consistent with Canadian law and a further offer was made that costs incurred from any discharge from the vessel would be the responsibility of the United States in accordance with international law. Canadian consent was given for this transit, which was the first of five transits from 1988–2003. Through the adoption and operation of the 1988 Agreement, Canada and the United States effectively removed some of the public controversy that had been associated with the 1985 Polar Sea transit. However, as can be seen from a review of the U.S. official statements on Arctic policy in 2009 and 2013, the U.S. position on the Northwest Passage remains unchanged. McDorman’s 2009 assessment of the situation therefore remains apt: The 1988 Agreement, however, was a political fix and not a legal fix to accommodate Canada while not undermining the U.S. legal position. It is an important and instructive example of the cooperative approach that Canada and the United States frequently are able to pursue to circumvent international ocean law disputes.55 The Northwest Passage as an International Strait One of the central legal issues that arises in any analysis of the status of the Northwest Passage is whether it is possible to equate it with a single strait or whether it is appropriate to characterize it as a series of interconnected straits. In this regard, the Northwest Passage could be considered unique as both customary international law and the LOS Convention have focused on the situation of a single strait, and not a series of straits that in sum comprise a navigational route from one area of the high seas/EEZ to another. Nevertheless, it is not contested that the Northwest Passage meets the geographic requirement of a strait or a series of straits as reflected in the Corfu Channel Case, in treaty law such as in the Convention on the Territorial Sea 54

U.S. Embassy Ottawa, Note 425, October 10, 1988 reproduced in Roach and Smith, supra note 43 at 325. 55 McDorman, supra note 51, at 251.

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and Contiguous Zone56 or the LOS Convention, or in customary international law.57 The most significant requirement, and one that has been the principal point of contention between Canada and the United States, is the functional requirement referred to in the Corfu Channel Case that the strait actually be used for international navigation. Pharand’s view has been that because of the low number of recorded transits of the strait, it is not possible to classify the Northwest Passage as a “strait used for international navigation.”58 This raises issues as to the actual recorded number of transits that have taken place, whether distinctions should be made between historical figures and more contemporary assessments, and the percentage of transits completed by nonCanadian flagged vessels.59 Pharand identified 15 transits of the Northwest Passage by U.S. flagged vessels in the period to 2005, of which only two were by non-government vessels – Manhattan (1969–1970) and an adventure yacht, Belvedere (1983–1988).60 More recent figures have indicated 18 transits of the Northwest Passage during the summer of 2010,61 while Headland has identified 135 full transits of the Northwest Passage in the period 1903–2009.62 Relying upon the actual use of the Northwest Passage since the first successful transit, Pharand has maintained that the Passage is not an international strait.63 He has argued that those who contend otherwise confuse potential use with actual use and that mere capacity is not what is required but rather what is necessary is actual use.64 However, as recently as May 2013, the United States reiterated its position that it enjoys freedom of navigation through the Northwest Passage.65 Two respected U.S. scholars with links to the U.S. 56 57

Territorial Sea and Contiguous Zone Convention, supra note 6. See: Pharand, supra note 1, at 223–224 and Donat Pharand, “Sovereignty in the Arctic: The International Legal Context” in Sovereignty and Security in the Arctic, ed. Edgar J. Dosman (London: Routledge, 1989), 145, at 153–154. 58 Pharand, supra note 1, at 202–214. 59 From the time of the very first transit of the Passage in 1903–1906 by Amundsen until 2005, Pharand identified 69 foreign transits. Pharand, supra note 33, at 32–33. 60 Id., at 31–32. 61 See discussion in Roach and Smith, supra note 43, at 478. 62 Headland, supra note 33, at 3–9. 63 Donat Pharand, “Canada’s Sovereignty over the Northwest Passage,” Michigan Journal of International Law 10 (1989): 653, at 669–670; Pharand, supra note 1, at 225; and Donat Pharand, “The Northwest Passage in International Law,” Canadian Yearbook of International Law 17 (1979): 99, at 112–113. 64 Pharand, supra note 1, at 225 and Pharand, “The Northwest Passage,” supra note 63, at 113. 65 U.S. “National Strategy,” supra note 25, at 9.

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Department of State observed in 2012 that on the basis of the statistics of usage of the strait that “to deny, as Canada continues to do, that the Northwest Passage is not a strait used for international navigation…is simply not credible.”66

Bering Strait67

The Bering Strait is a strategic ‘choke point’ given that it provides direct access between the Bering Sea and Chukchi Sea into the Arctic Ocean. With the increase in Arctic shipping, especially along the Northern Sea Route, the Bering Strait’s significance will only continue to increase especially due to its proximity to major trading powers such as China, Japan and South Korea.68 The Bering Strait will also be important if the Northwest Passage becomes a major Arctic navigation route because of the access that it provides to the Beaufort Sea for ships navigating west to east along the Northwest Passage en route to the Atlantic Ocean and the U.S. east coast. The presence of six commercial ports within the Bering Strait region – three American and three Russian – located to the south of the Strait further emphasize the current and future commercial viability of shipping through the region.69 The Bering Strait is considered by the U.S. Department of Defense as being of strategic importance, with a May 2011 departmental publication acknowledging that [a]n increase in maritime traffic between Asia and Europe, or Russia, could also raise the prominence of the Bering Strait as a strategic chokepoint and heighten the geostrategic importance of the Arctic region.70

66 67

68 69

70

Roach and Smith, supra note 43, at 478–479. Aspects of the discussion that follows are drawn from Donald R. Rothwell, “International Straits and Trans-Arctic Navigation,” Ocean Development and International Law 43 (2012): 267–282. U.S. Coast Guard, supra note 30, at 5 cites a 118 per cent increase in maritime transit through the Bering Strait from 2008–2012. AMSA Report, supra note 4, at 108. The U.S. ports are Nome, Kotzebue and the DeLong Mountain Transportation System port that serves Red Dog Mine. The Russian ports are Provideniya, Anadyr and Egvekinot. U.S. Department of Defense, “Report to Congress,” supra note 24, at 9. See also U.S. Coast Guard, supra note 30, at 13.

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Geographic Features The Bering Strait is bordered by Russia to the west and the United States (Alaska) to the east and is approximately 51 nm wide. The northern approach through the Chukchi Sea is relatively wide before it gradually narrows on approach to the Strait. While the southern approach is bounded to the east by the Aleutian Islands (United States), high seas navigation through the central Bering Sea presents no difficulties until St. Lawrence Island (United States) is reached immediately to the south of the Strait proper. St. Lawrence Island straddles the southern entrance to the Bering Strait forcing shipping to route to the east or to the west between the island and the Russian mainland. The distance between the southeast point of Cape Chukoski (Russia) and Northwest Cape on St. Lawrence Island is approximately 38 nm, while the Alaskan mainland is approximately 124 nm at its closest point, allowing for navigation via an EEZ corridor allowing for high seas navigational rights71 on either side of St. Lawrence Island before the Bering Strait is entered. At the mid-point of the Strait there are two islands – Big Diomede (Russia) and Little Diomede (United States) – effectively creating three navigational channels: • Bering Strait – West, which lies between the Russian mainland and Big Diomede Island approximately 22.5 nm wide; • Bering Strait – East, which lies between the U.S. mainland and Little Diomede Island approximately 22.5 nm wide; and • The Diomede channel,72 which is a 2.4 nm channel separating Big Diomede and Little Diomede Islands.73 Bering Strait – East and Bering Strait – West are recognized by the U.S. Navy as international straits for the purposes of the LOS Convention.74 Bering Strait Maritime Boundary There is a maritime boundary delimitation agreement between Russia and the United States which extends in the south from the Bering Sea, through the 71 72

73 74

LOS Convention, supra note 7, article 58(2). There does not appear to be an official name for the body of water that separates the two islands, other than that the waters fall within the Bering Strait. Accordingly, for this contribution, it is referred to as the Diomede channel. These measurements are taken from Roach and Smith, supra note 43, at 479–480. A.R. Thomas and James C. Duncan, eds., “Annotated Supplement to The Commanders Handbook on the Law of Naval Operations,” International Legal Studies 73 (1999): 205, Table A2–3.

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Strait, into the Chukchi Sea. The 1990 Agreement between the United States and Soviet Russia75 has as its principal focus the delimitation of the respective EEZ and continental shelf areas within the region and at approximately 1,600 nm in length is one of the longest maritime boundaries in the world.76 The 1990 Agreement mirrors some of the principal provisions embedded in the 1867 Convention ceding Alaska between Russia and the United States,77 with articles 1 and 2 of the 1990 Agreement recognizing the maritime boundary through the middle of the Bering Strait, and confirming the relative positions on either side of the boundary of Big Diomede and Little Diomede.78 While the 1990 Agreement makes no express reference to navigational rights and freedoms in the Bering Strait, there is a clear recognition that while the maritime boundary places limits upon the extent of coastal State jurisdiction,79 in all other respects the boundary does not affect or prejudice the rights of either State with respect to “the exercise of sovereignty, sovereign rights or jurisdiction with respect to the waters” of the area.80 It is clear, therefore, that other than the delimitation of the maritime boundary through the Bering Strait, the 1990 Agreement has no direct impact upon the navigational regime which applies within those waters. The 1990 Agreement has not been ratified by Russia, yet has been provisionally applied since 15 June 1990.81 The Bering Strait and the LOS Convention The Bering Strait meets all of the geographic requirements of a strait for the purposes of Part III of the LOS Convention in that it is a body of water that connects one part of the EEZ/high seas (Bering Sea) with another part of the EEZ/high seas (Chukchi Sea). The fact that technically there may be three geographic straits within the body of water known as the Bering Strait (Bering

75

Agreement between the United States and the U.S.S.R. on the Maritime Boundary, 1 June 1990, 29 I.L.M. (1990): 941. 76 Elizabeth G. Verville, “United States-Soviet Union,” in International Maritime Boundaries, Vol. I, eds. Jonathan I. Charney and Lewis M. Alexander (Dordrecht: Martinus Nijhoff, 1993), at 447. 77 Convention Ceding Alaska between Russia and the United States, 30 March 1867, 134 Consolidated Treaty Series 331. 78 This part of the 1867 Convention, id., also provided for the boundary between St. Lawrence Island and the Russian mainland which passes through a midway point between the island and Cape Chukotski (Russia). See: Verville, supra note 76, at 450–451. 79 1990 Agreement, supra note 75, article 1(2). 80 Id., article 4. 81 Verville, supra note 76, at 449.

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Strait – East; Bering Strait – West and the Diomede channel) is irrelevant for the purposes of the LOS Convention. There are many other international straits in the world which are formed by two opposite land masses within which a number of small islands are scattered.82 Whether the Bering Strait is one used for ‘international navigation’ in the Corfu Channel Case sense may have been contestable in the past, but it would appear clear on the basis of current usage that the Strait is considered useful for international navigation. For example, the 2009 AMSA Report noted that “150 large commercial vessels pass through the Bering Strait during the July–October open water period, with transits of these vessels most frequent at the beginning (spring) and end of the period (autumn).”83 While some caution needs to be exercised because of the usage of the Strait by previously Soviet and currently Russian flagged shipping, it is clear that on existing and future projections, the Strait will be used by many ships other than those which are Russian or U.S. flagged. On that basis, the Bering Strait meets the requirements for an international strait under Part III of LOS Convention to which the regime of transit passage applies.84 A unique feature of the Bering Strait is that there exists two viable shipping routes through the Strait: the Russian route to the west of the Diomede Islands and through the Russian territorial sea; and the U.S. route to the east of the Diomede Islands and through the U.S. territorial sea. The Diomede Channel, at only 2.4 nm does not appear to be wide enough when compared to the alternate routes to be attractive to commercial shipping. There is also the dimension that the waters between the islands fall within the Russia/U.S. maritime boundary with the effect that shipping would be subject to both Russian and U.S. law at different times as they completed their transit. The existence of alternate U.S. and Russian routes through the Bering Strait does not raise any significant international law issues given that the LOS Convention creates a set of standards which are equally applicable to each route and which are not dependent on the strait being a ‘one State’ or ‘two State’ strait. It does, however, highlight the fact that the United States has yet to become a party to the LOS Convention, and whilst U.S. practice has been to 82 83 84

For example: Torres Strait (Australia/Papua New Guinea) and Singapore Strait (Singapore/ Indonesia). AMSA Report, supra note 4, at 109. Id., endorses this view stating: “The Bering Strait region is an international strait for navigation and a natural chokepoint for marine traffic in and out of the Arctic Ocean from the Pacific Ocean.” For further discussion of maritime traffic in the Bering Strait, see: Andrew Hartsig, et al., “Arctic Bottleneck: Protecting the Bering Strait Region from Increased Vessel Traffic,” Ocean and Coastal Law Journal 18 (2012): 35, at 46–47, 49–52.

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consistently adhere to the transit passage regime and effectively accept its status as part of customary international law,85 it still raises the potential for slight variations in State practice in the interpretation of transit passage on either side of the Strait. It also raises the prospect of differing laws and regulations being applicable within either the Russian or U.S. side of the Strait, consistent with article 42 of the LOS Convention, though such laws are to be non-discriminatory and are not to deny, hamper or impair the right of passage.86 Given the environmental sensitivity associated with all aspects of Arctic shipping, some consideration may need to be given to the establishment of sea lanes and a traffic separation scheme through the Bering Strait so as to facilitate one way north–south and south–north traffic on either side of the Diomede Islands. Such measures would be consistent with article 41 of the LOS Convention, but would require cooperation between Russia and the United States in referring such a proposal to the International Maritime Orga­ nization (IMO) for adoption. The 2009 AMSA Report noted there were no vessel routing measures within the Bering Strait and few aids to navigation.87 Given the significant potential of the Bering Strait for increased maritime traffic and the difficult navigational conditions, it is anticipated that such arrangements will in due course be put in place. Recent Developments In a 2012 report assessing Alaska’s northern waters, the Alaska Legislature recommended that the United States should seek to work through the IMO for the establishment of a Bering Strait Vessel Traffic Separation Scheme warning: The remote, narrow, and hazardous international strait is located in an environmentally sensitive area with little or no search and rescue or maritime-disaster response capability within 800 miles. Increased vessel traffic in the future will make this area particularly vulnerable to maritime disasters. It is only prudent that basic routing measures and vessel 85

86 87

See: “Territorial Sea of the United States, United States,” Presidential Proclamation 5928, 27 December 1988, reprinted in 28 I.L.M. (1989): 284, in which President Regan stated: “In accordance with international law, as reflected in the applicable provisions of the 1982 United Nations Convention on the Law of the Sea,…the ships and aircraft of all countries enjoy the right of transit passage through international straits.” See generally: Roach and Smith, supra note 43, at 271–275. LOS Convention, supra note 7, article 42. AMSA Report, supra note 4, at 109.

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monitoring systems be put in place to reduce the risk of calamity in the Bering Strait.88 In response to the increase in maritime traffic through the Bering Strait, the U.S. Coast Guard in 2010 commenced a “Port Access Route Study” in order to assess whether there was a need to create vessel routing measures in the Bering Strait. While the area under review only encompasses the U.S. waters in the Strait, the Coast Guard study has the potential to facilitate the design of bilateral arrangements with Russia, if those are deemed necessary.89 In a further sign that the United States and Russia are giving increased attention to their shared interests in the Bering Strait region, it was announced in 2012 that the two neighbors would commence negotiations towards the finalization of a Transboundary Area of Shared Beringian Heritage that would link the national parks in Alaska and Russia.90

Concluding Remarks

Any analysis of U.S. policy and its legal response to navigational issues in the Arctic Ocean needs to be read against the backdrop of the U.S. Freedom of Navigation (FON) Program, which has been in place since 1979. As summed up by Roach and Smith, the FON Program aims to preserve and protect the global mobility of U.S. forces, and the navigation and overflight rights of all ocean users. Peaceful rather than provocative in intent, it impartially rejects excessive maritime claims of allied, friendly, neutral and unfriendly States alike.91 This objective explains the traditional U.S. position regarding freedom of navigation in the Northwest Passage and the continued assertions by the 88

89

90

91

Alaska State Legislature, “Findings and Recommendations of the Alaska Northern Waters Task Force,” (January 2012), 14–15, at http://housemajority.org/coms/anw/pdfs/27/ NWTF_Full_Report_Color.pdf>. U.S. Department of Homeland Security: United States Coast Guard, “Port Access Route Study: In the Bering Strait,” 33 CFR Part 167, Federal Register, 75 (No 215), November 8, 2010. See also discussion in Hartsig et al., supra note 84, at 61–62. U.S. Department of State, “U.S.-Russia Cooperation on Antarctica, Interregional Areas, and Beringia,” Fact Sheet, September 8, 2012, at http://www.state.gov/r/pa/prs/ pr/2012/09/197523.htm. Roach and Smith, supra note 43, at 637.

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United States that the right of transit passage applies in those waters. Never­ theless, irrespective of whether the customary international law recognized in the Corfu Channel Case, or the provisions of the 1958 Convention on the Territorial Sea and Contiguous Zone,92 or the LOS Convention apply, there is room for differing views as to whether the Northwest Passage is an international strait. It is arguable that different standards apply to the interpretation and application of international law in the polar regions when compared to more temperate lands and oceans.93 The consequence of such an approach would be that when the presence of ice in the waters of the Passage is taken into account plus the weather variables associated with Arctic navigation, a lower volume of international navigation than would normally be required may establish the Northwest Passage as an international strait. The United States in its management of the Bering Strait accepts the right of transit passage, is mindful of its international obligations as a littoral State while also balancing those against environmental concerns and those of indigenous Alaskans, and is mindful that as it shares the Bering Strait with Russia, and that there may eventually be a need to cooperate with its neighbor to achieve effective management of shipping through the Strait. Through this management experience in the Bering Strait, the United States may also begin to better appreciate some of the considerations that have influenced Canadian law and policy with respect to the Arctic and the Northwest Passage for many decades. 92 93

Territorial Sea and Contiguous Zone Convention, supra note 6. See, for example, Legal Status of Eastern Greenland, (Norway v Denmark) [1933] P.C.I.J. Reports, ser. A/B No. 53, at 46 and more generally, Rothwell, The Polar Regions, supra note 32.

chapter 9

Analysis of Maritime Transit Trends in the Arctic Passages Frédéric Lasserre and Olga Alexeeva* Introduction An increase in maritime activity will no doubt be one of the most important consequences of climate change in the Arctic region thanks to the unprecedented melting of sea ice. The development of commercial shipping through newly-accessible routes will, however, raise a number of difficult issues: establishing an effective response capability in the event of accidents, monitoring the exploitation of natural resources and curbing illegal trafficking in all of its forms. An increase in maritime traffic will also bring disagreements about the legal status of the new sea lanes and the right to exercise authority over them to the fore. While all of these questions warrant careful analysis and consideration, this contribution will focus on the present situation of commercial shipping through Arctic waters, specifically the Northwest Passage (NWP) and the Northeast Passage (NEP), and the potential for an increase in such activity. For several years, media stories have prophesied an Arctic maritime traffic boom. With no concrete economic analysis in support, such predictions have been little more than speculation.1 Some commentators have expressed the view that the Northwest Passage, toll free, will witness an expansion in traffic greater than the Northeast Passage.2 While maritime traffic patterns in the Arctic have been slow to change, since 2009 there has been a clear if modest * Frédéric Lasserre is Professor, Department of Geography and Director, Observatory of International Research on Water, Laval University, Quebec City, Canada. Olga Alexeeva is Assistant Professor, Department of History and Raoul-Dandurand Chair, University of Quebec in Montreal (UQAM), Canada. 1 F. Lasserre, “Changements climatiques dans l’Arctique: vers la disparition de la banquise?,” in Passages et mers arctiques: géopolitique d’une région en mutation, ed. F. Lasserre (Québec: Presses de l’Université du Québec, 2010). 2 See: M. Byers, “Defending the North: Who’s Responsibility?” Presentation at the conference “The United States, Climate Change, and the Arctic. Renewed American Interest in a Changing North,” UQÀM, Montreal, 19–20 April 2007; and R. Huebert, “Climate Change and Canadian Sovereignty in the Northwest Passage,” ISUMA Canadian Journal of Policy Research 2, no. 4 (2001): 86–94.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004284593_010

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increase in the commercial use of both Passages. Relying on data provided by databases in Canada and Norway/Russia, this contribution aims to draw a realistic picture of the future of commercial shipping in the Arctic sea lanes.

Methodological Considerations: Diversity of the Data

The analysis of transit traffic through the Northwest Passage and the Northeast Passage is based upon two specialized databases, one in Canada, the other in Norway/Russia. For the NWP, the database maintained by the Canadian Coast Guard, tasked with the responsibility of implementing the Northern Canada Vessel Traffic Services Zone Regulations (NORDREG), is an invaluable source of information. The database indicates the type of vessel, and provides various technical data including its size, ice class, power and cargo volume; the dates of its entry and exit from the NORDREG zone; the number of people on board; and the number of discrete movements completed by the ship within the zone. Details of ships’ movements within the Arctic Canada Traffic Zone are not provided. It is, therefore, not possible to know the specific routes ships take within the Canadian Arctic. This can be reconstructed using the detailed, but processintensive, INNAV (Information System on Marine Navigation) database set up by the Canadian Coast Guard. While partial and complete transits of the NWP are also indicated, the main focus of the database is on ship movements within the NORDREG zone. On the other side of the Arctic basin, for the NEP, the Centre for High North Logistics (CHNL) is the “international knowledge hub on Arctic transport and logistics for businesses, research institutions and public authorities.”3 It is based in Kirkenes, Norway, with a branch in Murmansk, Russia. With the help of the Russian Northern Sea Route Administration (NSRA), it compiles data on transits across the Northern Sea Route between the Kara Gates and the Bering Strait, which includes the Northeast Passage. In addition, the NSRA provides real-time information on ship movements along the Northern Sea Route (NSR).4 At present, no information regarding a ships’ origin or destination is recorded, nor is the data from previous years conserved. It remains to be seen whether such data will at some point in the future be consolidated as is currently being done in the NORDREG system. 3 Centre for High North Logistics, website at www.chnl.no/. 4 NSRA, “Daily Diagram of Vessel Movements in the Water Area of the Northern Sea Route,” http://www.nsra.ru/en/grafik_dvijeniya_po_smp/.

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The two databases are thus very different in their structure and goal (Table 1). NORDREG provides a snap shot of the ships plying Canadian Arctic waters but gives little information as to where the ships have come from or where they are going, the type of cargo they are carrying, or the shipping company to which they belong. The CHNL database, compiled with information provided by the NSRA, says nothing about the traffic within Russian waters and considers all ships coming from outside the NSR as in transit (even from Murmansk). It will at times report sailings from Dudinka to China as transits, whereas these are obviously destinational trips. The NSRA also does not provide data on icebreakers that may escort commercial ships. Thus, for the purposes here, corrections and interpretation are needed to make both databases comparable for assessing transits. According to NORDREG, a complete transit of the Northwest Passage is one that occurs between Baffin Bay and the Beaufort Sea. This definition thus includes voyages from origin points outside the Arctic to locations within the Arctic which utilize the NWP. For instance, Rotterdam to Tuktoyaktuk is considered to be a full transit, but in fact is a destinational Arctic trip. NORDREG Table 1

Main elements of the NORDREG and CHNL databases

Vessel name Vessel flag Ice class Type of ship Dimensions of ship Engines power Cargo volume (GRT) People on board Shipping company Cargo type Port of origin Port of destination Date of sail Entry into zone (NORDREG or NSR) Exit of zone Average speed

NORDREG – NWP

CHNL – NEP

       

  



 

       

Analysis of Maritime Transit Trends

183

also defines partial transits. A partial east to west transit of the Northwest Passage is considered to be a voyage from Baffin Bay to at least as far as Cambridge Bay, but not all the way to the Beaufort Sea. A partial west to east transit of the Northwest Passage is considered as being a voyage from the Beaufort Sea to at least as far as Resolute Bay, but not to Baffin Bay. In a similar fashion, the NSRA considers all ships that ply the NSR from the Kara Gates to the Bering Strait as being in transit. NORDREG focuses on ship movements within the traffic zone and information about transits must be derived from the data. The data confirms that shipping is increasing in the NORDREG area, with 322 ships entering the Canadian Arctic waters in 2012 compared with 121 in 2005. CHNL focuses on transits and gives no information about traffic within the NSR. However, while the two databases serve different purposes, the information enables a comparison of transit data for both Arctic passages.

The Northwest Passage

The transit figures compiled by NORDREG underline the relatively low level of transit activity in the NWP (Table 2). In 2012, only 30 ships completed a full transit of the passage. This was despite the drastic melting of the sea ice. Although the timing and the length of the navigation season remain difficult to predict and the risks associated with growlers, drifting ice and poor nautical charts continue to make navigation hazardous, sailing across the Northwest Passage is no longer a rare technological feat, provided a ship is of a sufficient ice class and has an experienced crew.5 If technology is no longer the main restrictive factor, it is economics that will be determinative of the growth in Arctic shipping. Several key findings respecting transits of the NWP can be drawn from an analysis of Table 2: • There is an undeniable trend of an increase in the number of transits. The figures for 2005 to 2012 contrast with those of the previous century, which reveal that while transits occurred, they were small in number with 135 transits from 1906 until 2009.6 5 F. Lasserre and S. Pelletier, “Polar Super Seaways? Maritime Transport in the Arctic: An Analysis of Shipowners’s Intentions,” Journal of Transport Geography 19, no. 6 (2011): 1465–1473. 6 R.K. Headland, “Ten Decades of Transits of the Northwest Passage,” Polar Geography 33, no. 1–2 (2010): 1–13.

184 Table 2

Lasserre and Alexeeva Transit traffic in the Northwest Passage, 2005–2012

Ship type

2005 2006 2007 2008 2009 2010 2011

Icebreaker Cruise ship or touristic icebreaker Cruise ship or touristic icebreaker, partial transit Pleasure boat Tug Commercial ship Commercial ship, partial transit (destinational) Research ship

2 2

3

1

Total complete transit Total partial transit

7

6

2 2

1

2 3

2

1 2

7 1 2

2 3

2 4

2 2

2 2

2

2

4

10 2

12 1

13

1

4

22 2 11 6

1 7

12 2

2012

17 1

19 6

1 6

1 1 (partial) 18 30 9 10

1 But with local service too, Gotland Carolina was loaded with oil products in Vancouver, stopped in Dutch Harbour, then in Tuktoyaktuk to unload part of its cargo, then again in Wise Bay. The ship then proceeded to Rotterdam, its final destination. This trip is thus formally a transit, but in fact a destinational trip too as the ship unloaded cargo twice to Arctic destinations and then was repositioned. Source: Compiled by F. Lasserre, data from NORDREG, Iqaluit, Nunavut.

• Transits by icebreakers have been a recurring feature in the history of the NWP. More recently, transits by cruise ships have also taken place. • Transits by pleasure craft took off in 2007 and have since become the main category of NWP transits, with 22 vessels in 2012. • Commercial ships are almost completely absent from the picture. All of the commercial activity is linked to destinational traffic, which on occasion has involved transiting the NWP. Clearly the NWP has not been considered so far by shipping companies as a practicable or profitable route. In August 2013, the coal carrier Nordic Orion crossed the NWP from Vancouver to Pori in Finland, triggering a lot of media attention. It could signal that transits by commercial traffic will begin to develop across the NWP as it already has along the NSR. However, one ship pales compared with traffic in the NSR. Besides, the shipping company that owns Nordic Orion underlined that the transit was made possible as the Canadian Coast Guard offered free

Analysis of Maritime Transit Trends

185

icebreaking escort. Had the company been billed, the transit would not have taken place.7

The Northern Sea Route

With the current trends in the melting of the sea ice in the Arctic Ocean, the possible opening of the NSR to regular commercial transit is widely discussed by a variety of interested stakeholders as well as international and local massmedia. The NSR stretches along Russia’s northern coast and, like the Northwest Passage, is not one single clearly defined route. It is a number of alternative deep water routes between Novaya Zemlya and the Bering Strait. According to some, the NSR is likely to experience increased commercial vessel traffic well before the Northwest Passage, in part because the ice is receding more quickly in the shipping zone off Siberia.8 In the summer–autumn period of 2010, for the first time in the history of Russian Arctic shipping, a tanker of over 100,000 deadweight tons (dwt) was piloted along the NSR. The tanker SCF-Baltica (ice class 1AS in the Baltic system) under the flag of Liberia, loaded with 70,000 tons of gas condensate, left the port of Murmansk and reached its final destination, the Chinese port of Ningbo, in 23 days.9 The trip covered 7,000 miles (Murmansk to China) instead of the 12,000 miles had it utilized the Suez Canal. Russian officials have characterized this transit as a milestone in the development of an Arctic route for transporting hydrocarbons to Asian markets.10 Since then, several other tankers have transited the NSR. For instance, in 2011, Vladimir Tikhonov (163,000 dwt) used the NSR, becoming the largest tanker to navigate the route.11 In 2012, SCF-Amur set another record by completing the voyage along the NSR in seven days. 7

“Cargo ship carves a path in Arctic Sea,” Wall Street Journal, 25 September 2013 and “Northwest Passage Crossed by First Cargo Ship,” National Post, 27 September 2013. 8 Arctic Council, Arctic Marine Shipping Assessment 2009 Report (2009), 32; Lasserre, supra note 1, at 28; and Margaret Blunden, “Geopolitics and the Northern Sea Route” International Affairs 88, no. 1 (2012): 115–129. 9 Rosatomflot, “Атомный ледокольный флот – ключевое звено обеспечения геополитических интересов России в Арктике” [Atomic icebreaking fleet is the key element of Russian geopolitical interests protection in the Arctic], http://www .rosatomflot.ru/index.php?menuid=20&artid=21&apage=1. 10 Ivan Pertov, “Уникальный рейс” [The extraordinary sailing], Морские новости – [Sea News], 2010, http://www.morvesti.ru/analytics/index.php?ELEMENT_ID=8846. 11 “Руководство “Газпрома”и “Совкомфлота” обсуждает развитие морской транспортировки СПГ” [The Board of directors of Gazprom and Sovkomflot discuss the

186

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The Russian government sees the development of the NSR as a national economic priority, considering it vital to the commercial interests of major corporations close to the Russian State.12 Navigation along the NSR appears to be developing quickly and the volume of traffic steadily growing. If in 2010 there were officially only four transits by ships transporting a total of 111,000 tons of cargo, media reports claim that in the following year this number had increased to 34 transits with 820,000 tons of cargo,13 a figure, however, that departs from the CHNL database number of 41 transits. The CHNL database shows that in 2012 there were 46 transits through the NSR escorted by Russian icebreakers (Table 3). The ships involved transported 1.26 million tons of various types of cargo: 894,000 tons of liquid cargo (oil and gas), 359,000 tons of bulk cargo (mineral resources mostly) and 8,000 tons of fish.14 In order to further encourage navigation in the Arctic, the board of directors of Rosatomflot, a federal state company that uses and maintains the Russian fleet of nuclear-powered icebreakers, plans to reduce the price for services performed by Russian icebreakers along the NSR.15 The CHNL data on vessel traffic (Table 3) shows that there were no transits before 2007, when two ships ‘officially’ transited the NSR for the first time.16 Traffic picked up quickly thereafter, with 13 transits in 2010, 41 transits in 2011 and 46 in 2012. A close look at the NSR statistics (Table 4) reveals that most of the transit traffic has been and continues to be destinational in nature. Ships either come from or go to a Russian Arctic or a Norwegian Arctic port – three in 2009, eight in 2010, 17 in 2011 and 33 in 2012. Complete transits of the NSR are also on the 12 13

14

15 16

development of transport navigation along the NSR], Pro-Arctic, 26 March 2013, http:// pro-arctic.ru/27/03/2013/news/2480#read. Kristian Atland, “Russia’s Armed Forces and the Arctic: All Quiet on the Northern Front?” Contemporary Security Policy 32, no. 2 (2011): 267–285. “Летняя навигация в Арктике: успеть нужно многое до первого льда” [Summer navigation in the Arctic: We have to do, a lot before the forming of the first ice], ARCTICuniverse, 18 June 2012, http://www.arcticuniverse.com/ru/pr/03277.html. “Транзитный грузопоток по Северному морскому пути в текущем году вырос в 1, 5 раза” [This year, the transit of cargos through the Northern Sea Route has increased 1.5 times], Металлоснабжение и сбыт – Metal Supply and Sales, 30 November 2012, http:// www.metalinfo.ru/ru/news/60341. “Summer Navigation in the Arctic,” supra note 13. This seems to be an error, since there were two commercial transits in 1997: the Finnish oil tanker Uikku and a Latvian oil tanker transited from Murmansk to the Bering Strait. See Lawson Brigham quoted in “Commercial Arctic Passage Nearing goal,” New York Times, 4 September 2009.

187

Analysis of Maritime Transit Trends Table 3

Transit traffic in the Northeast Passage, 2005–2012

Ship type Icebreaker Government ship Cruise or passenger ship Tug, supply vessel Commercial ship Research ship Total official transit

2005

0

2006

0

2007 2008 2009 2010 2011 2012

1 1

1 2

5

2

3

5

1 4 6 2 13

2 1 1 4 31 2 41

3 0 0 5 38 0 46

Source: Adapted from CHNL and NSRA.

rise – two in 2010, seven in 2011 and eleven in 2012. While complete transit traffic is mostly westbound, destinational traffic is largely eastbound, a reflection of the value and importance of exports of Arctic natural resources to Asian or the Russian Far East markets. Table  5 describes the type of cargo transported along the NSR and highlights the dominance of the carriage of natural resources (crude or refined hydrocarbons) extracted from the Arctic and the virtual absence of general cargo or containerized goods. The nature of the NSR, a seasonal seaway, does not favor the development of scheduled container routes.17 It is unquestionably the exploitation of the region’s natural resources that is the driver of maritime traffic in the NSR. Another feature of the NSR vessel traffic is the prominent involvement of Russian companies (Table 6). This is a consequence of the use of the seaway being connected with the exploitation of Arctic natural resources. However, as evidenced in Table 6, foreign companies, mainly Scandinavian, are increasingly becoming involved.

Towards Traffic Growth in the NSR

The Russian Ministry of Transport expects that traffic through the NSR will reach 64 million tons in 2020 and 85 million tons in 2030.18 These figures hinge on the successful realization of the government’s program for the 17 18

See Lasserre and Pelletier, supra note 5, at 1468. “Северный морской путь увеличит грузооборот в 50 раз” – [The NSR will increase the freight turnover 50 times], Известия – The News, 7 August 2011, http://izvestia.ru/ news/496692.

188 Table 4

Lasserre and Alexeeva Transit figures for the NSR: a finer geographic look at origin/destinations

2007 2008 2009 2010 2011 2012 Partial transit (thus within the NSR) NSR transit but to/from Russian Arctic port Of which: Westbound Eastbound Commercial with cargo Commercial or tug/supply, repositioning NSR transit but to/from Arctic port Of which: Westbound Eastbound Commercial with cargo Commercial or tug/supply, repositioning Complete transit but with loading/ offloading in an Arctic port Of which: Westbound Eastbound Commercial with cargo Commercial or tug/supply, repositioning Complete transit (to and from outside the Eurasian Arctic) Of which: Westbound Eastbound Commercial with cargo Commercial or tug/supply, repositioning

1

1 1

3 7

3 16

2 32

3 4 4 3

16 15 1

10 22 24 8

1

1

1

1 1

1 1

1 1

1

2

7

11

1

1 1 0 2

1

1

1

1 1

1

3

2 1 3

2

2 2

6 1 7 0

Note: In 2011, the database does not specify origin/destination for 14 ship movements. Source: Adapted from CHNL and NSRA.

11 0 7 4

189

Analysis of Maritime Transit Trends Table 5

Nature of commercial cargo on the NSR

2007 Tanker – oil & gas Tanker – refined products Bulk – ore or coal Bulk – scrap metal Reefer – fish General cargo Specialized heavy lift Containers

2008

2009

3 1

1 1

2010

2011

2012

1 1 2 1

9 6 4

10 16 6

4 2

1

2

1

Note: Excludes ships not carrying cargo, oil and gas logistics or repositioning. Source: Adapted from CHNL and NSRA.

Table 6

Origin of companies using the NSR for commercial shipping (cargo, cruise, oil and gas logistics)

Russia Denmark Sweden Finland Germany Belgium Japan Greece United Arab Emirates Monaco Cyprus

2007

2008

2009

2010

2011

2012

1

3

3

9

26

1

2 2

19 10 5 6

1 2

4 1 1 1 1

1 2 1 1

Source: Adapted from CHNL and NSRA.

development of the NSR.19 Moscow’s ambitious plans for the NSR include the building or upgrading of infrastructure along its Arctic coastline – ports, new 19

Id.

190

Lasserre and Alexeeva

icebreakers, customs facilities, rescue centers and marine checkpoints. Such an extensive program will require a substantial and sustained investment in Russia’s Arctic regions, which the Russian government is unlikely to be able to achieve on its own. According to Ivan Gratchev, the director of the Duma’s Committee on Energy, Russia will need to invest huge sums to realize its ambitious plans for the development of its Arctic territories.20 This investment may come from Russia’s large national energy companies, such as Gazprom, Novatek and Rosneft, but also from foreign investors (China, Norway and Japan) anxious to explore and exploit Russian Arctic oil and gas resources. Examining the nature of the current NSR traffic, rapid development of Arctic navigation in the near future predicted by Russian authorities seems less certain. First, the almost complete absence of container shipping is striking. The NSR is mainly used by vessels involved in the exploitation of natural resources, either for logistical support of extraction activities (seismic or supply vessels) or to transport the resources to their final markets (bulk shipping). Second, precisely because most of the traffic is composed of tankers carrying hydrocarbons from Novatek, Russia’s second-largest natural gas producer after Gazprom, heading for Asia or the Russian domestic market, the traffic is very much dependent on demand from Asian markets. Russian oil and gas companies have made huge investments to tap into and ship the energy resources found in Russia’s Arctic regions. Novatek supplies natural gas to 35 regions in the Russian Federation and its activities account for 16.3 per cent of the total natural gas deliveries to the domestic market. The company’s three core fields – Yurkharovskoye, East-Tarkosalinskoye and Khancheyskoye – are located in Western Siberia within the Polar Circle and future fields targeted for exploration are on the Gydan Peninsula and in the Gulf of Ob. Novatek is also one of the major investors in building the port of Sabetta on the eastern shore of the Yamal Peninsula, where gas condensate is to be loaded onto tankers for transportation to foreign markets.21 If all goes as planned, by 2016, the port of Sabetta should be able to load 16 million tons of natural gas and 1.35 million tons of gas condensate annually, thus becoming a major port in the Arctic region and a key contributing factor for the development of navigation through the NSR.22 20

21 22

“Иван Грачёв: 20 трлн долларов США потребуется России для освоения Арктики” – [Ivan Gratchev: Russia will need 20 trillion US dollars for the development of the Arctic], Pro-Arctic, 19 April 2013, http://pro-arctic.ru/19/04/2013/news/2887#read. Vitaly Chernov, “Севморпуть – больше не жуть?” – [The NSR, not a horror anymore?], Port News, 16 October 2012, http://portnews.ru/comments/1494/. Maxim Minin, “Ямал не потерпит простых решений. Новый морской порт Сабетта планируется построить в Арктике на полуострове Ямал” – [Yamal will not tolerate easy solutions. The new sea port Sabetta is going to be constructed in the Arctic, on the

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The second major user of the NSR is Norilsk Nickel, the world’s largest producer of nickel and palladium and one of the leading producers of platinum and copper. Its mining operations located above the Polar Circle on the Taimyr and Kola Peninsulas are connected to other regions of Russia via the Yenisei River and the NSR, as well as by air. Norilsk Nickel operates its own Arctic fleet and does not require the services of the State’s icebreakers.23 Thus far, the Novatek and Norilsk Nickel have been the most frequent users of the NSR. However, the NSR is only one of many options for these companies to transport resources, and it is far from being the principal one. Their use of the NSR to ship natural resources to the Russian Far East market and the fastgrowing Asian markets accounts for the eastbound transit traffic from Russian ports. The decision to use the NSR appears to be a long-term strategy, since it has yielded little immediate economic benefit for the companies. If China’s economy continues to cool as indicators suggest, Novatek and Norilsk Nickel’s use of the NSR will remain at moderate levels. In addition, China’s strategy to develop its shale oil and gas deposits24 may moderate its demand for Arctic hydrocarbons. In addition to these two regular users of the NSR, there is some episodic traffic of ships transporting other cargo – fish, wood, coal, iron ore from Norway, etc. For instance, in 2011, the successful arrival of a reefer ship with 27,500 tons of salmon in St. Petersburg was reported by all the major Russian newspapers as a promising beginning for the NSR as a transportation passage between the Far East and the European part of Russia.25 However, in 2012, there was no repeat as it was decided not to use the NSR because Rosatomflot had adopted new rules and tariffs for ships transiting the NSR. Under the new regime, given the tariff level, it appears the minimum transported deadweight to ensure profitability for the fishing industry is 100,000 tons. The problem is that local producers of fish, wood or coal cannot easily meet this condition.26 As things stand today, transit traffic is mainly in one direction: tankers and dry bulk carriers transporting natural resources from the Russian 23 24 25

26

Yamal Peninsula], Морские новости – Sea News, 2010, http://www.morvesti.ru/ analytics/index.php?ELEMENT_ID=13365. Chernov, “Севморпуть – больше не жуть?” supra note 21. Christophe Le Bec, “Le pétrole de schiste rebat les cartes jusqu’en Afrique,” Jeune Afrique 2733 (26 mai–1er juin 2013): 70–71. “Севморпуть в 2012 году не будет использован для доставки лосося с Дальнего Востока в центр России” [The NSR is not going to be used in 2012 for the transportation of salmon from the Far East to the center of Russia], Port News, 18 July 2012, http:// en.portnews.ru/news/141148/. Id.

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Arctic to consumers in China and Japan and returning empty. The NSR is little used for long-haul transit or by container traffic, although such a possibility was widely discussed and anticipated by the Russian media and government officials.27 The major driver of the current rapid development of NSR traffic is the export of resources from the Norwegian and Russian Arctic regions and not transit shipping. The NSR appears to be a market niche that provides an opportunity for a market share increase in the bulk and tanker business, but only for innovators and risk-takers such as shipping firms partnering with big energy companies with close connections to the Russian State.28 Conclusion There has been a striking divergence in the evolution of the transit traffic along the NWP and the NSR. While the NWP transit traffic is dominated by pleasure boats and cruise ships with little commercial traffic, on the Russian side no pleasure boats and very few cruise ships have transited the NSR with the majority of transits comprising commercial ships carrying cargo or repositioning (Table 7). The NSR and the NWP are often described as offering similar commercial opportunities. Some authors have warned that with its high tariffs, the NSR will not see much traffic and that this will hinder profitability. In light of the statistics compiled up to 2012, a number of conclusions arise. • Transit traffic is increasing along both the NSR and the NWP, with a recent and spectacular growth along the NSR. • NSR transits are mainly driven by commercial cargo and, to a lesser extent, by oil and gas logistics involving tugs and supply vessels. Transits along the NWP are dominated by pleasure boats and cruise ships. • Commercial cargo ships are largely from national companies: Canadian in the NWP and Russian in the NSR. However, along the NSR, foreign, especially Scandinavian firms, are increasing their involvement.

27

28

“В ближайшие 5 лет Севморпуть станет основным маршрутом в Арктике” [In the next 5 years, the NSR will become the main route in the Arctic], Port News, 18 October 2013, http://portnews.ru/comments/1689/. Halvor Schøyen and Svein Bråthen, “The Northern Sea Route Versus the Suez Canal: Cases from Bulk Shipping,” Journal of Transport Geography 19, no. 4 (2011): 977–983.

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Comparison of transit traffic along the two Arctic passages up to 2012

NWP

NSR

Transit traffic is increasing Shipping sectors of transiting traffic Complete commercial transits Origin of companies of commercial cargo

Gradually Largely cruise and pleasure Rarely takes place Mostly Canadian

Nature of commercial cargo

General cargo for local communities

Dominant structure of commercial transit

Destinational

Recently and fast Largely commercial and oil and gas logistics Expanding since 2010 Largely Russian, with an increasing share of Scandinavian firms Liquid or solid bulk, extraction of natural resources Destinational but complete transits increasing

• Commercial cargo along the NWP is mainly general cargo delivered to local communities; along the NSR cargo is mostly natural resources whether from the Russian or Scandinavian Arctic. • These facts underline the destinational nature of transit traffic along both routes: ships come to the Arctic, load or unload, then leave. Few ships use the NSR for complete transits, though this figure is increasing. • As natural resources exploitation is expanding in the Siberian and Scandinavian Arctic, one can expect this to lead to increases in NSR traffic. However, this growth is dependent on resource market prices and production levels. • It can be expected that a similar development of transit traffic could take place in the Canadian Arctic when (if) mines and oil and gas fields enter into production.

Part 4 Bilateral Relations

∵

chapter 10

Canada’s Arctic Waters

Circumnavigating the Legal Dispute Bernard H. Oxman*

In broad terms, Canada has sought for some time to extend its legal control over the sea north of its coasts. From an economic and environmental perspective, the provisions of the U.N. Convention on the Law of the Sea1 regarding the territorial sea, the exclusive economic zone (EEZ) and the continental shelf, as well as the provisions on protection and preservation of the marine environment in these areas, represent a significant accommodation of this Canadian objective. That accommodation is not contested in Washington or elsewhere. The legal and political view from Washington and other capitals nevertheless may be in somewhat greater measure informed by global strategic factors. The capacity to operate throughout Arctic waters, like the capacity to operate throughout all the other seas and oceans of the world, forms a significant part of the global defense posture of the United States and the North American Treaty Organization (NATO) alliance, especially in the face of terrorist threats that can be planned and prepared half-way around the world. The Arctic is important in this regard not only directly as an area of actual and potential activity, but also as one object of the overall platform of principle maintained with respect to the freedoms and rights of navigation and overflight of all states throughout all the seas and oceans of the world. From the perspective of global mobility, the U.N. Convention on the Law of the Sea represents a significant accommodation of that platform of principle. In part because of the differences in perspective or emphasis, the issue of the status, use and protection of Arctic waters has commanded intermittent attention at the highest levels in Ottawa and Washington for decades. It is however important to bear the history in mind. When Canada first began considering the question of regulating navigation in the Arctic—a process that ultimately led to adoption of the Arctic Waters Pollution Prevention Act in 19702—there were those in the United States and elsewhere who suggested that an essentially nonexistent environmental problem in the Canadian Arctic was being elevated into an international cause célèbre for political * Richard A. Hausler Professor of Law, School of Law, University of Miami, Florida, USA. 1 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397. 2 Canada, Arctic Waters Pollution Prevention Act, R.S.C. 1985, c. A-12, as amended.

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reasons. Whether or not that was the case, we know that the issue has the potential to deteriorate into something like the exchange of expletives that is said to have occurred between Prime Minister Trudeau and President Nixon. The trick is to avoid that. And in order to do so, we need to find means to avoid and sidestep differences over important questions of legal principle, and to do so in a manner that avoids prejudice in form and in fact to the important principles involved. The U.N. Convention on the Law of the Sea contains provisions that help the Arctic states to achieve this, that is, to sidestep and avoid the legal issues that divide them if they wish. Three elements are key in this regard. First, inspired by Canada’s Arctic Waters Pollution Prevention Act, article 234 gives the coastal state the right to adopt and enforce regulations for the prevention, reduction and control of marine pollution from vessels up to 200miles from the coastal baselines. Article 234 provides: Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence. Given the size of this vast area and the scope of this coastal state regulatory power, as a practical matter governments, if they are willing, are to a significant degree able to focus on article 234 and avoid addressing legal differences regarding either the precise location of the coastal baselines defining the limits of internal waters, the territorial sea and the EEZ in the area, or the precise nature of the navigational regimes applicable in different parts of that area. For the foreseeable future, the fact that Arctic ice is melting in the Canadian north will not change this significantly. Key questions concern construction, manning, equipment, and design of ships. These do not change during a voyage. So long as the presence of ice covering part of the route for most of the year creates obstructions or exceptional hazards to navigation justifying Canadian regulation in that area, the practical effect is to control these matters for the entire voyage. Moreover, entry to Canadian ports and the availability of Canadian assistance in the event of trouble can be made conditional on

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compliance with Canadian environmental regulations. Insurance companies can be expected to be sensitive to the potential for liability under Canadian law; the availability and cost of insurance are likely to promote compliance. There is also nothing to stop Canada from seeking approval of regulations from the International Maritime Organization (IMO) that become binding by virtue of that approval on all parties to the Law of the Sea Convention or some other treaty. So long as Canada and others believe this is desirable, the question of whether it is necessary can be put to one side, and if need be, addressed in unilateral statements designed to protect legal positions. Second, there is however an important exception. Article 236 says that the environmental provisions of the Convention do not apply to warships and other government non-commercial ships. This exclusion applies, and was intended to apply, to the ice-covered areas provisions of article 234. The third element of the package concerns the provisions of Part III of the Convention regarding straits used for international navigation. Those provisions were strongly supported by the maritime powers, including Moscow and Washing­ ton. It was understood that as part of the package, Ottawa would not oppose them. It should be evident that while article 234 permits governments to sidestep important differences of legal principle insofar as merchant shipping is concerned, the exclusion of warships and government non-commercial ships from the reach of article 234 can bring the legal differences back to the fore. Thus, with respect to warships and other government non-commercial ships, the question of their navigation rights does raise questions regarding the precise location of the coastal baselines defining the limits of internal waters, the territorial sea and the EEZ in the area, as well as questions regarding the precise nature of the navigational regimes applicable in different parts of that area, including transit passage of straits used for international navigation. As between Canada and the United States, this problem was avoided with respect to U.S. Coast Guard icebreakers by virtue of a special arrangement reached in 1988.3 But those icebreakers pose a limited problem of limited reach. It is by no means apparent that such an approach would be plausible 3 Agreement between Canada and the United States on Arctic Cooperation, 11 January 1988, 1852 U.N.T.S. 59. Under article 3 of the Agreement, and in recognition of the close relations between the two countries and the mutual benefit to be obtained from research conducted during icebreaker voyages, Washington pledged that all navigation by U.S. icebreakers within waters claimed by Canada to be internal will be undertaken with the consent of Canada. However, article 4 declares: “Nothing in this agreement of cooperative endeavour between Arctic neighbours and friends nor any practice thereunder affects the respective positions of the Government of the United States and of Canada on the Law of the Sea in this or other maritime areas or their respective position regarding third parties.”

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with respect to activities of broader scope in the oceans by U.S. warships and other government non-commercial vessels operating in the Arctic. From time to time the question of U.S. submarines in the Arctic has been raised by members of the Canadian public. That question is beyond the reach of article 234. But, needless to say, it is not beyond the reach of the extensive and profound multilateral and bilateral defense arrangements that link Canada and the United States. It is thus possible to rely on those arrangements to avoid this problem in a manner compatible with the legal positions of both countries, if the political will is there to do so. It may be tempting for Canada to seek further concessions of principle from the United States and Europe because the pre-occupation with terrorism that has influenced defense policy in the United States and elsewhere since 9/11 may suggest comparatively less interest in global mobility. We might recall however that the Canadian and U.S. governments and others have made it clear in word and deed that the threat of catastrophic attack from terrorists is best addressed long before that threat approaches our shores. This in turn requires careful attention to the platform of principle that forms the foundation for global mobility and the effectiveness of both collective security and collective self-defense, namely global navigation and overflight rights and freedoms. There are of course emerging multilateral regimes that could assist coastal states, including Canada, in dealing with terrorist threats. These could be taken into account in assessing the possibilities for avoiding a clash between the two countries over abstract legal positions in the Arctic. But let us be quite clear on the limits of this thought; the Arctic does not provide a particularly inviting platform for terrorist penetration of North America’s population centers. Thoughtful Americans and Canadians have long recognized that the issues for Canada and the United States are more complex than a simple snapshot of their formal legal positions might suggest. The defense of North America, including the Arctic, has long been the object of cooperative efforts by both Canada and the United States. Canada and the United States have important economic and strategic relationships with each other and third states. Canada and the United States each have interests in access to waters off the Atlantic, Arctic and Pacific coasts of the other on terms that are not arbitrarily dictated by the other. As but one example, we might recall that Canada was successful in persuading the Supreme Court of the United States to stop the State of Washington from imposing unilateral environmental restraints on access to and from Canadian waters.4 In short, both countries have complex, internally conflicting, and intertwined interests that are best addressed with subtlety and reflection. 4 See: United States v. Locke, 529 U.S. 89 (2000).

chapter 11

Understanding the Canada-United States Arctic Relationship Elizabeth B. Elliot-Meisel* The 2006 headline said it all, “Our sovereignty is melting,”1 but the warning was nothing new. For over forty years Canada has addressed the sovereignty issue of the Arctic waters in fits and starts, especially as regards the Northwest Passage. Canadian legal expert Donat Pharand patiently but emphatically not only warned of the consequences of delay, but explained the legal basis by which Canada can claim the Passage and offered constructive measures to both protect and use the Passage.2 The Passage is becoming more accessible to a myriad of foreign ships and interests, and while the Canadian government is committed to protecting Canada’s claims, more ice will melt before the Arctic Offshore Patrol Ships (A/OPS) are launched, much less the CAD720 million three-season Polar Class icebreaker Diefenbaker. Construction has not begun on either project.3 * Associate Professor, Department of History, Creighton University, Omaha, USA. 1 Donat Pharand, “Our sovereignty is melting,” The Ottawa Citizen, 23 August 2006, A13. 2 Donat Pharand, The Law of the Sea of the Arctic: with a Special Reference to Canada (Ottawa: University of Ottawa Press, 1973); Pharand, “Canada’s Jurisdiction in the Arctic,” in A Century of Canada’s Arctic Islands, 1880–1980 , ed. Morris Zaslow (Canada: Royal Society of Canada, 1981), 111–130; Pharand with Leonard Legault, The Northwest Passage: Arctic Straits (Dordrecht: Martinus Nijhoff Publishers, 1984); Pharand, Canada’s Arctic Waters in Inter­ national Law (Cambridge: Cambridge University Press, 1988); and Pharand, “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development and International Law 38 (2007): 3. 3 The CCG icebreaker St. Laurent is due to retire in 2017. Any delays could leave the Coast Guard without a Polar class icebreaker, a prospect that hinders Canada’s claim to commitment to the Arctic. Also, the Royal Canadian Navy’s supply ships are slated for construction at the same time as Diefenbaker, but the Vancouver shipyard that holds both contracts cannot complete the two projects simultaneously. “Feds face tough choice as naval resupply ships, icebreaker on collision course,” 7 May 2013, http://o.canada.com/2013/05/07/feds -face-tough-choice-as-naval-resupply-ships-icebreaker-on-collision-course/. Further, the RCN’s A/OPS, announced in 2007 for service in 2013, have only now been contracted with construction to begin in 2015 and delivery projected in 2018. In the interim years, the cost has increased CAD40 million over the 2007 estimates, and the number of ships that can now be built has not been confirmed. “Halifax shipyard nets Arctic offshore patrol ships project,”

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One may well ask why an American cares that Canada’s claim respecting the Northwest Passage is tenuous and that Canada may not be able to solidify its claim to the satisfaction of the international community—much less the United States. Why not let time and climate change continue to make the U.S. case that the Passage is an international strait, thus avoiding confrontation with Canada? If the Passage becomes a “useful route for international maritime traffic,”4 it will meet all the criteria of an international strait by eliminating the contested criteria of actual versus potential use. U.S. vessels could then transit the Passage without seeking or receiving the consent of Canada, which would undoubtedly annoy Canada, but Canada could not claim that the U.S. vessel was acting inconsistent with international law. Why attempt to find a solution to this dispute now? There are at least three reasons: it is in the national security interest of the United States; it is in the interest of continental security; and it is the way the United States should work with its most important ally. The bottom line is that the Northwest Passage is emblematic of the broader issues of Arctic and continental security and the narrower issue of national interests. In an era of melting ice, increased pressures to explore, extract, exploit and transport the Arctic’s natural resources necessitate proactive, not reactive policies, and cooperation is in the best interests of both Canada and the United States. Already non-Arctic States, most significantly China, have made their Arctic interests known and have invested tremendous amounts of money and resources into an Arctic presence—from shipping to resource development to buying energy companies.5 China and five other non-Arctic States have been granted permanent Observer status in 7 March 2013, http://www.nunatsiaqonline.ca/stories/article/65674halifax_shipyard_nets _arctic_offshore_patrol_ships_project/. Additionally, the staggering cost—much greater than similar ships built in other Arctic States—is causing great concern and many questions in Canada. “Is Canada’s Arctic patrol ship plan turning into a costly boondoggle?,” 5 May 2013,  http://www.alaskadispatch.com/article/20130505/canadas-proposed-arctic-patrol -ship-plan-turning-costly-boondoggle. 4 Corfu Channel Case, [1949] I.C.J. Reports 4, at 28, http://www.iilj.org/courses/documents/ corfuchannel.unitedkingdomv.albania.pdf. 5 Despite promises not to permit such acquisitions in the future, the Canadian government has permitted the sale of major Canadian energy companies to Chinese State-owned businesses. In December 2012, the Chinese took over Nexen; prior to that the government permitted the sale of part of Talisman Energy to China. Ian Austen, “Canada clears $15 billion Chinese takeover of an energy company,” 7 December 2012, http://dealbook .nytimes.com/2012/12/07/canada-clears-15-billion-chinese-takeover-of-an-energy -company/.

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the Arctic Council.6 As Canadian Arctic expert Rob Huebert wryly noted, when it comes to China’s Arctic ambitions, “Who is going to stop them?”7 At the same time, Canada has to grapple with the impact of climate change on its Northern communities, the rights and contributions of its indigenous peoples to Northern issues, substantive environmental protection pressures, and the reality of limited national budgets. It has long been argued—mostly, but not exclusively, from the Canadian side of the 49th parallel—that the United States and Canada should settle the issue of the Northwest Passage. But now, with growing foreign interests and activities in the Arctic, it is time to leave any ‘agree-to-disagree’ modus operandi behind and get on with protecting and securing the continent. It cannot be overstated: it is in the best interests of both the United States and Canada to settle the outstanding (and sometimes contentious) issue of the Northwest Passage before climate and/or a crisis settles it for them. To understand how a waterway near the top of the world can be important to continental security in the post-Cold War era, one needs to first understand the geography of the region, the history of the Northwest Passage, and then its contentious legal status. The Northwest Passage is actually a series of passages that connect the Atlantic and Pacific Oceans, between islands owned by Canada. Interest in finding a northerly route to East Asia and its riches has long motivated explorers. Elusive, dangerous and deadly, it was not successfully transited until the twentieth century. The British actively sought a route, though the greatest exploration and mapping of the region was in search of the lost (and tragic) Franklin Expedition in the mid-nineteenth century. When Britain transferred its northern lands to Canada in 1880, the land and water became Canadian. Or did they? By the 1930s nearly all land disputes were resolved, but due to its frozen nature the issue of the water was largely ignored. Even though the North has an important place in Canada’s national identity—‘True North Strong and Free’—the reality is that few Canadians are familiar with the region, and fewer still have ventured to the North. Little attention was paid or resources devoted to the indigenous peoples of the Arctic— the First Nations and the Inuit, Inuvialuit and Innu. As Prime Minister Louis St. Laurent noted as late as 1953, Canadian administration of that region was 6 The others are India, Italy, Japan, Singapore and South Korea. The European Union’s application was rejected. There are three permanent members on the Council of the Arctic Council from the European Union (Denmark, Finland, and Sweden) and seven observers (France, Germany, Italy, Netherlands, Poland, Spain and the United Kingdom). 7 Rob Huebert cited in “China signals hunger for Arctic’s mineral riches,” The Guardian, 4 June 2013, http://www.guardian.co.uk/environment/2013/jun/04/china-arctics-mineral-riches.

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effected “in an almost continuing state of absence of mind.”8 He pledged to rectify this, a promise repeatedly made since then, with mixed results. Ironically, it is this indigenous peoples’ presence to which Canada now attaches much of its ‘historic’ right argument to the waters of the Arctic. The U.S. interest in the region, the rise of Japan in the 1930s, and the issue of continental defense led to the modern era of continental security concerns and a myriad of joint U.S.-Canada defense projects. In World War II these included air routes (the Northwest Staging Route, the Mackenzie River air route, the Crimson Route), communication and weather stations, the Alaska Highway and the joint First Special Service Force. The discussion of continental defense was initiated by President Franklin Roosevelt and institutionalized in the U.S.-Canada Permanent Joint Board on Defense. A unique forum, established by a Presidential Executive Order and Canadian Order-in-Council, it still exists as a body where the two countries operate as equals and come to decisions based on consensus. It is a model that should not be ignored. After the war, Canada was determined to reclaim its North where the U.S. presence in 1943 was over 33,000 personnel. Canada paid for the wartime facilities, forgave the U.S. debt for Canadian contributions to the projects, and the Americans left. In a systematic way, absent the immediacy of a hot war, Canada entered into postwar negotiations with the United States for joint weather stations, early warning systems, communication stations and, eventually, the continental defense organization North American Aerospace Defence Command (NORAD). It was during the Cold War that the Arctic waters gained new importance. While in the late 1940s the United States and Canada separately sent their own ships into Arctic waters, it became clear that the Royal Canadian Navy (RCN) could not afford both an Arctic presence and fulfill its North Atlantic Treaty Organization (NATO) commitments. Recognizing Soviet Russia as the enemy that threatened security, as opposed to the United States which could be viewed as threatening sovereignty, the RCN abandoned its Arctic presence in the mid-1950s. That is not to say, however, that Canada left completely. The Canadian Coast Guard continued to be active in the waters of the North, limited only by the hull strength of its fleet, although even today no Canadian Coast Guard ships can operate in the High Arctic year round.9 8 Canada, House of Commons, Debates, 8 December 1953, at 698. 9 For a brief history of Canada’s only ship able to transit the High Arctic year round, HMCS (later CCGS) Labrador, see: J.M. Leeming, “HMCS Labrador and the Canadian Arctic,” in The RCN In Retrospect, 1910–1968, ed. James A. Boutilier (Vancouver: University of British Columbia Press, 1982), 286–307.

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The United States, for its part, developed nuclear-powered submarines capable of under ice navigation. The Soviets also developed nuclear-powered submarines and the two superpowers (and perhaps others, too) transited Canadian Arctic waters without detection or permission.10 This author has repeatedly argued that the shared concern for continental defense necessitates compromise by both the United States and Canada.11 There is a point at which Canadian sovereignty claims must include permission for the United States to freely transit the waters of the Arctic to help maintain not only U.S. security, but Canada’s as well. And the United States must realize that recognition of Canada’s sovereignty over the Northwest Passage does not set a precedent respecting other contested straits.12 Recognizing Canada’s sovereignty over the Passage enhances the primary interest of the United States in the Arctic—continental security.13 Why is the status of the Passage, so far to the north and surrounded by Canadian territory, up for debate? No one disputes that Canada ‘owns’ the Passage, but the United States argues that it is an international strait, and not, as Canada claims, internal Canadian waters. There are no sovereignty disputes over the lands of the Canadian Arctic, save for one uninhabited outcropping—Hans Island—in Nares Strait, which 10

11

12 13

It is believed by some that an agreement did in fact exist between the United States and Canada regarding such under ice transits, but this cannot be verified. See: David Larson, “United States Interests in the Arctic Region,” Ocean Development and Inter­ national Law 21 (1990): 182. See also: Michael Byers and Suzanne Lalonde, “Who Controls the Northwest Passage?,” background paper for a model negotiation between non-governmental teams from the United States and Canada, 18–19 February 2008, (Ottawa), unpublished, at p. 34, note 174. E. Elliot-Meisel, Arctic Diplomacy: Canada and the United States in the Northwest Passage (New York: Peter Lang Publishing, 1998); E. Elliot-Meisel, “Still Unresolved After Fifty years: The Northwest Passage in Canadian-American Relations, 1946–1998,” American Review of Canadian Studies 29 (1999): 407; and E. Elliot-Meisel, “Politics, Pride, and Precedent: The United States and Canada in the Northwest Passage,” Ocean Development and International Law 40 (2009): 204. Most often cited are the Strait of Malacca, the Strait of Hormuz, and parts of Russia’s Northern Sea Route. Continental security is not limited to military security, but rather includes social, economic, environmental and energy security. And there are those in Canada who believe the issue of sovereignty itself is not an issue. See the Franklyn Griffith and Rob Huebert debate: F. Griffiths, “The Shipping News: Canada’s Arctic Sovereignty Is Not on Thinning Ice,” International Journal 58 (2003): 257 and R. Huebert, “The Shipping News Part II: How Canada’s Arctic Sovereignty is on Thinning Ice,” International Journal 58 (2003): 295.

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Canada and Denmark are actively working to resolve. As noted above, until World War II, the issue of the Arctic waters was largely ignored because it could be ignored; the water was frozen so much of the year that navigation was largely only local. It was during World War II that the first Canadian, Henry Larsen, transited the Passage (in 1940–1942 and 1944) with the transits’ connection to sovereignty being for “maintaining sovereignty over the Arctic Islands” not Arctic waters.14 After this, the Passage was again neglected and only became an issue when Canadians felt their sovereignty over the Passage was being challenged. There were two transits involving the United States that raised Canadian ire over the Northwest Passage: the 1969 SS Manhattan and the 1985 USCGC Polar Sea. Much has been written about both events, and controversy still swirls over the issue of asking permission, what the requests—or lack of requests— implied about Canadian sovereignty, how the Canadian governments viewed the transits (Trudeau’s Liberal government in 1969, Mulroney’s Conservative government in 1985), how the Canadian public and press viewed the transits, what each administration pledged in the aftermath, and finally, what was actually done. The first incident involved a feasibility study on transporting oil from the Arctic to market by ship, as opposed to by pipeline. Humble Oil Company (later Exxon) asked Canada for assistance in sending the arcticized tanker SS Manhattan through the Northwest Passage. Assistance, as well as two Canadian representatives (Captain T.C. Pullen, former captain of HMCS Labrador, and Emil Stasyshyn, a Department of Transport Ice Observer), were provided.15 The CCGS John A. Macdonald escorted the Manhattan on its entire voyage. The U.S. Coast Guard cutter Northwind began the voyage but was 14 15

Clifford Wilson, “Arctic Odyssey,” The Beaver (March 1945): 3. See also: H.A. Larsen, “Our Return Voyage Through the North-West Passage,” RCMP Quarterly 10 (April 1945): 299. It is clear from Canadian documents that Canadian participation was “not only in response to a request from the sponsors of the test, but also to ensure a meaningful and obvious Canadian presence in our Arctic waters….” A.H.G. Storrs to Captain T.C. Pullen, Memorandum 11 July 1969, Hudson’s Bay Company Archives, E346/8/2, v. 4 (excerpts: [Pullen’s] Personal Record of S.S. Manhattan, 1969). It is also clear that despite the fact that the “oil companies concerned have sought cooperation of the Canadian Government,” participation by the U.S. Coast Guard and military aircraft was evidence that the voyage “no longer [had] the simple character of a private project.” But the Canadians similarly noted that the voyage “does not necessarily admit or deny Canada’s claim to the waters between the Arctic islands….[and not seeking permission] would be consistent with [U.S.] policy of not taking any action which might be interpreted as acceptance of Canada’s claim….” Draft Memorandum for the Cabinet, “Canadian Sovereignty in the Arctic,” 20 March 1969, p.11, 12, Hudson’s Bay Company Archives, E346/2/2B.

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unable to finish. The United States had informed Canada that it would be sending a ship to transit the Passage—the operative word here is ‘informed’ as opposed to ‘asked permission’. At this time Canada had not effected legislation to claim the waters of the Northwest Passage as internal Canadian waters. Prime Minister Trudeau did not introduce legislation to back his pre-transit claim “that the waters between the islands of the archipelago are internal waters over which Canada has full sovereignty.”16 In fact, when making that statement, he acknowledged Canada’s claim was in dispute, but nevertheless, that “the Canadian government has welcomed the Manhattan exercise, has concurred in it and will participate in it.”17 The Canadian government had not anticipated the backlash by the Canadian press and public. Viewing the transit as a challenge to Canadian sovereignty, the public demanded a strong response. What it received was an innovative measure that has stood the test of time: the Arctic Waters Pollution Prevention Act (AWPPA).18 While not ending debate on the status of the Northwest Passage, the AWPPA pointedly asserted functional jurisdiction (preventing pollution in the Arctic waters), as opposed to claiming outright sovereignty.19 Initially the legislation applied out to 100 nautical miles but was expanded to 200 nautical miles in 2009. The AWPPA was the public response to the Manhattan transit; more quietly in 1973, Canada publicly indicated for the first time its assertion that the waters of the Northwest Passage were claimed as being historic internal waters,20 although no legislation was submitted to formalize this. After the fervor of the Manhattan voyage subsided and the transport of Arctic oil ended up in pipelines, Canadian concerns over Arctic sovereignty waned. But all it took was another perceived threat to Canadian sovereignty by the United States to re-ignite attention. This time it was the transit of the USCGC Polar Sea in August 1985. There is no debate over the fact that the Reagan Administration gave “a formal and explicit assurance that the voyage…was without prejudice to Canada’s legal position”21 regarding the Passage. This assurance, however, was 16 17 18 19

20 21

Canada, House of Commons, Debates, 15 May 1969, at 8720. Id., at 8721. Arctic Waters Pollution Prevention Act, S.C. 1969–1970, c. 47. “Canadian Prime Minister’s Remarks on the Proposed Legislation” as quoted in supra note 10, at 178. See also: Harriet Critchley, “Canadian Naval Responsibilities in the Arctic,” in RCN in Transition: 1910–1985, ed. W.A.B. Douglas (Vancouver: University of British Columbia Press, 1988), at 283. Canada, Department of External Affairs, “Letter,” 17 December 1973, in Canadian Yearbook of International Law 12 (1974): 277. Canada, Minister Clark, House of Commons, Debates, 10 September 1985, at 6463.

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lost on the Canadian public, which fumed at the United States ‘informing’ the Canadians of the transit and not asking permission. Like the Trudeau government, the Mulroney government had made no attempt to block the transit and had cooperated with the United States, but perhaps most importantly, it had underestimated the public relations fallout. Forced to regroup, the Canadian government came out with a more muscular response than had occurred in 1970. The Mulroney government made it clear to the world that Canada claimed the Northwest Passage as Canada’s historic internal waters and implemented baselines in the Arctic, effective 1 January 1986, delineating the seaward extent of the historic waters.22 In the years between the two problematic transits, the United Nations Law of the Sea Convention (LOS Convention) had been adopted. It states that any strait that had been international prior to the drawing of straight baselines, remains an international strait and has to permit the new “right of transit passage,” which allows submarines to transit below the surface.23 While it is clear that the wording of the LOS Convention applies to straight baselines constructed based on the Convention, it is less clear that the wording applies to baselines delineating the outer limit of claimed historic waters.24 In addition to the baseline legislation, the Canadian government proposed projects intended to leave no doubt as to Canada’s sovereignty and presence in the Arctic. But the government ran into the same obstacles of the past (and future) administrations—backing up grand plans with concrete results. As governments have consistently discovered, an Arctic presence is expensive and limited resources—money and personnel—are obstacles that eventually reduce, if not terminate, such plans. The government’s plans had included building six Polar-8 icebreakers, buying ten to twelve nuclear-powered attack submarines, more maritime aircraft, new helicopters and ships of various types, laying underwater sonar to monitor activities in the Arctic, upgrading airfields, and negotiating an agreement with the United States over the issue of the Passage. The determination was to close the ‘commitment-capability gap’, counter ‘rust-out’,25 and leave no doubt as to Canadian sovereignty in the 22 23

24 25

Canada, Territorial Sea Geographical Coordinates (Area 7) Order, Canada Gazette Part II, Vol. 119, SOR 85–872, 10 September 1985, 3996–4002. U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397, Part III Section 2, art. 35(a) and 38. For a summary of Donat Pharand’s legal argument regarding innocent passage in the new internal waters created by the straight baselines, see: Ted L. McDorman, Salt Water Neighbors: International Ocean Law Relations between the United States and Canada (New York: Oxford University Press, 2009), at 238–239. See: McDorman, id., at 213–214. National Defence, Challenge and Commitment: A Defence Policy for Canada (Ottawa: Minister of Supply and Services Canada, June 1987), at 43 and 45.

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region, but just about nothing came of these promises. Except for increasing the number of Canadian Rangers,26 an agreement with the United States was the only tangible result. And yet, one could argue that this agreement was the most important outcome and the most instructive as a way to move forward. Hammered out by President Reagan and Prime Minister Mulroney, the Canada-United States Agreement on Arctic Cooperation is a pragmatic arrangement that has worked since it was signed in 1988.27 As noted by legal expert Ted McDorman, “its main purpose was not the prevention of future U.S. Coast Guard vessel voyages through the Northwest Passage, but the minimization of the public and political sideshow” that accompanied the Polar Sea transit, and “the creation of a process…to avoid confrontation” over the issue.28 Applicable only to U.S. Coast Guard vessels, the United States agreed to ask permission for its ships to transit the Northwest Passage before a voyage begins (although the request for permission is seen by the United States as tied to marine scientific research), and Canada agreed to grant that permission29 (which to Canada is seen as “‘implicit recognition’” of its sovereignty30). Obviously, this did not settle the sovereignty issue of the Passage and it does not apply to other ships or submarines. But its usefulness lies in the fact that it is pragmatic, it works, and if left alone (outside the heated rhetoric of shrill sovereignty claims and U.S. ideological intransigence), it reflects the pragmatism of World War II and Cold War cooperation and makes clear that the way forward is more of the same. A lesson in integrative bargaining, as opposed to the winner-takes-all distributive bargaining,31 both the United States and Canada compromised while concurrently realizing some of their goals and undeniably enhancing continental security. As noted above, international law is an integral factor in both the politics and legal definition of the Passage. Prior to 1985, when Canada drew baselines 26

The Canadian Rangers, established in 1947, is a volunteer force in the North made up of First Nations, Inuit and other Northern inhabitants that provide a military presence in sparsely settled northern, coastal and isolated areas of Canada. 27 Agreement between Canada and the United States on Arctic Cooperation, 11 January 1988, 1852 U.N.T.S. 59. 28 McDorman, supra note 23, at 246. 29 As McDorman notes, the Agreement is not free of divergent interpretations: the Cana­ dians read “necessary consent…for the transit” of the USCGC icebreakers, whereas the Americans see “consent for the [scientific] activity of the icebreakers while in transit.” Id., at 250. 30 Derek Burney quoted in Christopher Kirkey, “Smoothing Troubled Waters: The 1988 CanadaUnited States Arctic Co-operation Agreement,” International Journal 50 (1995): 419. 31 Id., at 401.

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to enclose the Arctic waters, Canada’s claims to the Arctic waters in general and the Northwest Passage in particular had been erratic and not backed by legislation to cement the sovereignty claim. In the early twentieth century, Canada was associated with a sector of the Arctic, from 141°W and 60°W, but the sector principle was not then, and is not now, recognized in international law as conferring entitlements or sovereignty over maritime areas. Canada certainly exercised control in the remote region and its inhabitants were Canadian citizens, but the focus was the land and not the water. Canada’s claim that the Arctic waters are ‘historic internal waters’ is seen as being weak and problematic.32 The status of the Northwest Passage—international or internal—is crucial to the security of the continent. If the Passage is an international strait, Canada has no right to deny transit. If it is internal historic waters, no ship may sail in or through the Passage without permission requested and granted by Canada. Therefore, the legal designation of the waters is important. There are two International Court of Justice cases that are relevant to the legal status of the Northwest Passage: the 1949 Corfu Channel Case, which defined an international strait,33 and the 1951 AngloNorwegian Fisheries Case, which recognized the right to draw straight baselines along convoluted coasts.34 Canada’s use and interpretation of both cases is not without controversy. The Corfu Channel Case settled a dispute between Great Britain and Albania over warships in the Corfu Strait. The Court ruled in favor of the British, defining an international strait as one that meets the functional criteria of “a useful route for international maritime traffic”35 and also the geographic criteria of connecting two parts of the high seas. It did not distinguish between the types of ships, military or civilian, in the strait, and though it noted the large number of transits and the diverse nations using the strait, it did not set a number for ‘useful’. The Court did not speak of ‘potential’ use and chose the word ‘useful’, not ‘necessary’, to describe the route. The choice of words has become important for both Canada and the United States. The Court confirmed that in an international strait any ship can transit without notifying the contiguous State, but reaffirmed that such transit had to be 32

33 34 35

Pharand, “Final Revisit,” supra note 2, at 13 concludes “that Canada is not in a position to discharge [the] heavy burden of proof that it has exercised exclusive jurisdiction over the Arctic waters for a sufficiently long period of time and with the acquiescence of foreign states, particularly those primarily affected by its claim.” Corfu Channel Case, supra note 4. Anglo-Norwegian Fisheries Case, [1951] I.C.J. Reports 116. Corfu Channel Case, supra note 4, at 28.

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“innocent passage.”36 For submarines, this means that they must surface during the transit—an important factor with regard to the Arctic that was not foreseen in 1949. Canada bases its claim to internal waters on ‘historic title’; added to by the low volume of traffic in the Northwest Passage prior to the twenty-first century (fewer than seventy). Canada’s position is that the Northwest Passage does not meet the legal definition of what constitutes an international strait. But if, as the United States argues, potential use is the functional criteria, the Canadian case on this issue—to use Donat Pharand’s term—starts to ‘melt’. In the last few years, transit numbers have climbed,37 and although they do not meet the level of other busy international straits, it seems certain that climate change will permit more such transits. Pharand has repeatedly warned that if the Passage becomes suitable and used for shipping, Canada’s argument that the Passage is not an international strait will be less sustainable. The 1951 Fisheries Case provides another line of argument for Canada. Briefly, in the Fisheries Case the International Court upheld Norway’s claim that its straight baselines measured from “headland to headland” enclosing seas beyond the previously accepted ten-mile width was legal. Additionally, the baselines could be drawn between the islands of an archipelago and from the mainland to the islands, making these waters internal. The Court did not rule on a maximum length of the baselines, although it did state that the baselines were to respect the general direction of the coast38—a statement some Americans have cited in their protest over Canada’s Arctic baselines drawn 34 years later.39 Why does the United States deny the Northwest Passage is internal Canadian waters? The answer lies in U.S. maritime history and politics far from the Arctic. The United States has traditionally sought maximum freedom of the seas. Thus, it prioritizes this freedom and expects unrestricted access to the North­ west Passage for its ships—civilian and military. But arguably even more important is its fear of setting a precedent that other States may use to restrict freedom of navigation in such potentially contentious straits as the Strait of 36

37 38 39

‘Innocent passage’ was defined in the subsequent LOS Convention, supra note 23, art. 19(1) as “innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.” There were 18 in 2010 and 22 in 2012. Anglo-Norwegian Fisheries Case, supra note 34, at 142. Ronald G. Purver, “Sovereignty and Secuity in the Arctic,” in Canadian Oceans Policy: National Strategies and the New Law of the Sea, eds. Donald McRae and Gordon Munro (Vancouver: University of British Columbia Press, 1989), at 175.

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Hormuz and the Strait of Malacca, and bolster Russian claims regarding the Northeast Passage part of the Northern Sea Route. In an era of melting ice, new technological innovations are opening the Arctic, increased human activity has arrived, overdue recognition of indigenous peoples’ rights and contributions need to be addressed, and limited national budgets are a reality; it is time to settle the issue of the Northwest Passage. Perhaps it would have been easier when the waters were frozen nine months a year, but that time has passed and the importance of the issue grows as the ice melts. Thus, the next best time is the present, as policies and laws regarding exploration, extraction, transportation and security are being written. As interest in the Arctic moves beyond mere words to actions and action plans, Canada and the United States must be vigilant. It is not just the increased presence of energy interests, mining entities, fishing vessels and tourist ships, it is the potential (and reality) of other types of intrusions in the region.40 Smugglers of all types (weapons, drugs, illegal immigrants) have an open door to the continent, unauthorized ships and probably submarines may transit the Passage, and while the idea of terrorists entering from the Arctic may sound far-fetched, it is believed that a plane with Al Qaeda connections landed in Iqaluit en route to the Middle East in 1993.41 Any such intrusion “constitutes some degree of sovereignty challenge,”42 but without a doubt, it also constitutes a potential security threat, and not just to Canada but to the United States as well. Prime Minister Harper began his Arctic focus with an arguably strident statement in 2007: “Canada has a choice when it comes to defending our sovereignty over the Arctic. We either use it or lose it. And make no mistake, this government intends to use it.”43 Yet few initiatives have come to fruition. Canadians, when forced to choose their national priorities, tend to place military projects behind health care, education and social services.44 Respecting 40

41 42 43 44

For a thorough discussion of such intrusions in the Canadian Arctic, see Nancy Teeple, “A Brief History of Intrusions into the Canadian Arctic,” Canadian Army Journal 12, no. 3 (winter 2010): 45. Id., at 51. Id., at 59. “Harper on the Arctic: ‘Use it or lost it’,” 10 July 2007, http://www.canada.com/topics/ news/story.html?id=7ca93d97-3b26-4dd1-8d92-8568f9b7cc2a. An indication of these priorities and the government’s budgetary realities is the scaling back of the proposed projects. The A/OPS will no longer be ‘double-acting’ ships that sail with a bow designed for open water and a stern designed for icebreaking. Further, their use will be restricted to late summer, as the ships will be only ice-strengthened, not built as ice breakers, and not able to break ice for other ships as previously planned. Michael

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‘use it or lose it’, many were quick to point out that the indigenous peoples had been ‘using it’ for millennia and had no intention of relinquishing their voice in how the region was to be ‘used’. The Government of Canada has subsequently proposed an “integrated Northern Strategy” that incorporates stewardship, social programs, environmental protection, economic development, and an overtly military approach to securing sovereignty.45 And Harper has conceded that “the United States is our premier partner in the Arctic,” that “Canada does not anticipate any military challenges in the Arctic,” and even that Canada’s focus will largely be to deal with the “increase in environmental threats, search and rescue incidents, civil emergencies and potential illegal activities.”46 Canadian diplomat John Holmes noted that Canadian “soil is protected not by American generosity but by American self-interest, which is more dependable.”47 While he spoke before climate change’s effect on the Arctic waters, his observation is especially prescient in the post-September 11 world and applicable to all of Canada’s land and water. This is the time that Arctic policy needs to be proactive, not reactive. Even a relatively small mishap can become magnified in the harsh Arctic climate and the results exponentially devastating. The attitude of both Canada and the United States (governments and publics alike) needs to move away from narrow national interests to embrace a working relationship that provides comprehensive Arctic, and thus continental, security. The United States and Canada should not have a zero sum game attitude toward the Passage: a ‘win’ for one is not a ‘loss’ for the other. Continental security can no longer be narrowly defined in the Cold War terms of only military security, which is short-sighted and, arguably, counter-productive. There is also

45 46 47

Byers and Stewart Webb, “Offshore patrol ships an expensive compromise,” (Victoria) Times Colonist, 9 May 2013, http://www.timescolonist.com/opinion/op-ed/comment -offshore-patrol-ships-an-expensive-compromise-1.173917. The port has been scaled back, and the latest budget cuts to the military means that “[t]he Army will have to limit/ reduce the scope of its activities in the North, thus directly impacting on Canada’s ability to exercise Arctic sovereignty.” Commander Lt.-Gen. Peter Devlin quoted in an Army planning document, in David Pugliese, “Army to scale back Arctic operations because of budget cuts,” Ottawa Citizen, 3 March 2013, http://www.ottawacitizen.com/news/Army +scale+back+Arctic+operations+because+budget+cuts/8042743/story.html. Canada, “Speech from the Throne,” 16 October 2007, http://pm.gc.ca/eng/media.asp? id=1859. Canada, “Statement on Canada’s Arctic Foreign Policy,” 2010, at 23/24, 25/26, 2/3. John Holmes, “Is There a Future for Middlepowermanship?,” in Canada’s Role as a Middle Power, ed. J. King Gordon (Canada: Canadian Institute of International Affairs, 1966), at 23.

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stewardship and responsible development in crafting a truly effective northern policy,48 one which must include input from those living in the Arctic. Intransigence has no place in the United States-Canada Arctic relationship today, not between two States that are continental partners with a long history of bilateral cooperation and collaboration; two States that worked well together during World War II and the Cold War—as Allies, as partners in NORAD, as members of NATO; two States that are each other’s most important trade partner; two States for whom continental security is intimately tied to national security. The idea of a special arrangement respecting the Northwest Passage between Canada and the United States is not new, but it is pressing. Canadian domestic law would apply to a Passage that is internal waters: all vessels, their cargo, crews, and passengers would be subject to standards that are stricter than international standards. The Canadian standards are a better safeguard of the fragile Arctic ecosystem and environment, but equally important, Canada could deny entry to any vessel deemed a threat to Canadian security. This brings the discussion to the next obvious point: how to monitor, patrol, defend and secure this remote region. The answer lies in the traditional, pragmatic and successful cooperative relationship with the United States. Effective occupation of the Arctic necessitates equipment, personnel and financial resources. Canada has suffered a commitment-capability gap for decades. In the last 50 years, Canadian governments have pledged to back up the rhetoric of sovereignty with the hardware necessary to protect it, but the majority of projects have been abandoned or radically diminished. It is not that Canada does not care about the Arctic, but there are limited resources and broad values that compete for the same limited funds. Despite its larger economy and population, the United States is not without its own limited resources and worldwide commitments. Even in prosperous times, it would make sense to share costs and responsibilities. The precedent exists: from NORAD (with its maritime component) to the Permanent Joint Board on Defense to border crossing arrangements, the United States and Canada have both the history and expertise to tackle a comprehensive and cooperative arrangement for the Northwest Passage. A pragmatic solution of recognizing Canadian sovereignty in return for open access for the United States in the Passage is not because either country has an indisputable case to secure its position, it is because the old paradigm— Canadian sovereignty vs. American rigid adherence to freedom of the seas—is 48

Franklyn Griffiths has stressed that this approach is more important than the military approach. See: Griffiths, supra note 13, at 278–282.

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not the right framework for the twenty-first century. Donat Pharand’s recommendation points the way forward: “a Transit Agreement with the United States” whereby “[t]he United States would recognize Canada’s sovereignty over the passage and Canada would grant a right of transit for American ships under stipulated conditions to protect its vital interests.”49 A Transit Agreement presents a way past the ‘agree-to-disagree’ paradigm of the 1988 Arctic Cooperation Agreement and settles the issue—pragmatically and legally. It would specifically deny being a precedent elsewhere in the world, like the Canada-United States Arctic Cooperation Agreement. It would recognize Canada’s sovereignty over the Passage—the crux of Canada’s concerns, and it would address continental security issues—the crux of the United States’ concerns by permitting the United States the right of access to monitor, transit, patrol and defend the Passage in pursuit of continental security. And for those who worry about the longevity or resilience of such a unique agreement between two States, they need only look at the history of United States-Canada relations. The two States have a proven track record of effective cooperation that respects both nations’ sovereignty and security concerns. There is nothing to fear in a pragmatic compromise—the historical precedent of bilateral cooperation and collaboration affirm the sensibility of a new definition and framework for continental security, and gives the peoples of both states the continental security they expect and deserve. 49

Pharand, “Our sovereignty is melting,” supra note 1.

chapter 12

The Dog in the Manger—and Letting Sleeping Dogs Lie The United States, Canada and the Sector Principle, 1924–1955 P. Whitney Lackenbauer and Peter Kikkert* Introduction Donat Pharand has left a deep imprint on our historical and legal understanding of Canada’s sovereignty position in the Arctic. His masterful analysis of Canada’s evocation and uneven application of the so-called ‘sector principle’ through the twentieth century has shown its insufficiency as a basis for Canada to claim the waters of its Arctic archipelago as historic waters. Its instrumentality as a cartographic and political device to delineate lines of allocation of land, however, has proven remarkably successful in practice—even if its international legal basis remains dubious. While Pharand has noted the United States’ rejection of the principle in Canadian and Antarctic contexts,1 the logic behind the U.S. legal position—and their political approach to managing their relationship with Canada on Arctic sovereignty—warrants more careful academic scrutiny to reveal the complex interplay between legal principles and political practice in circumpolar relations. In the spring of 1924, U.S. Secretary of State Charles Hughes received two letters that forced the State Department to examine U.S. interests and international law in the polar regions. The first note came from the Norwegian government explaining that Norway would claim all land discovered during an upcoming trans-Arctic flight by the explorer Roald Amundsen. The second came from Anson W. Prescott, secretary of the Republican Publicity Association, who inquired whether the United States had a valid claim to Wilkes Land, an area in the Antarctic first spotted by the U.S. Exploring Expedition in 1840. In his replies to both notes, Hughes insisted that discovery alone, without * Whitney Lackenbaeur is Professor, Department of History, St. Jerome’s University, University of Waterloo, Ontario, Canada. Peter Kikkert is Instructor, School of Education, Aurora College, Northwest Territories, Canada. 1 See, for example, Donat Pharand, The Law of the Sea of the Arctic with Special Reference to Canada (Ottawa: University of Ottawa Press, 1973), 142–144 and Donat Pharand, Canada’s Arctic Waters in International Law (Cambridge: Cambridge University Press, 1988), 68–69.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004284593_013

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‘actual settlement’ of the discovered land, did not provide a country with a legitimate claim to sovereignty.2 Out of these statements was born the Hughes Doctrine, which formed the foundation of U.S. polar policy. At heart, it was a defensive legal position meant to ensure potential U.S. rights in the Arctic and Antarctic. Under the Hughes Doctrine, proclamations, repeated visits, temporary outposts and a semblance of control did not allow a country to acquire sovereignty over polar territory. Akin to more temperate zones, the U.S. position held that countries had to settle, colonize and exploit polar lands before they could successfully claim them. Accordingly, U.S. officials refused to recognize any polar claim that did not meet its very strict interpretation of the requirements of sovereignty. A year later, on 1 June 1925, Canada’s Minister of the Interior, Charles Stewart, stated in the House of Commons that the Canadian government claimed sovereignty over all land within the Canadian sector up to the North Pole.3 This proclamation, made in response to an American expedition which planned to operate around Ellesmere Island and Axel Heiberg in search of undiscovered land around the North Pole, tied Canada’s sovereignty in the Arctic to the sector principle. This theory allowed Canada to claim all land (even that which remained undiscovered) in a sector created by drawing borders from the eastern and western extremities of its northern coastline up to the North Pole. While previous Canadian officials had raised the sector principle, and Canadian maps had outlined a sector since 1904, this official articulation by a Cabinet minister was unprecedented.4 As Pharand has 2 S.W. Boggs, Department of State, Office of the Historical Adviser, The Polar Regions: Geographical and Historical Data in a Study of Claims to Sovereignty in the Arctic and Antarctic Regions, 21 September 1933, United States National Archives and Records Administration (NARA), College Park, Maryland, Record Group (RG) 59, CDF 1930–39, Box 4522. File 800.014, Arctic/31 and Charles Hughes to Norwegian minister, 2 April 1924, Foreign Relations of the United States 1924 (Washington: U.S. Government Printing Office, 1939), 519–520. 3 An amendment to the Northwest Territories Act insisted that all people entering the sector had to get a permit from Ottawa. Nine days later, Stewart further clarified that Canada claimed “all the territory lying between meridians 60 and 141.” House of Commons Debates, 1 June 1925, 3773; 10 June 1925, 4069, 4084; and Pharand, Canada’s Arctic Waters, supra note 1, 48–50. 4 White, “Memorandum Respecting Macmillan Expedition to the Canadian Arctic,” 2–3 and Gordon W. Smith, “Sovereignty in the North: The Canadian Aspect of an International Problem,” in The Arctic Frontier, ed. R. St. J. Macdonald (Toronto: University of Toronto Press, 1966), 215. Canada’s Department of the Interior had already published two maps that used the 141st and 60th meridians as Canadian boundaries, the first of which was published in 1904 and showed the boundary going up all the way to the North Pole. See Pharand, Canada’s Arctic Waters, supra note 1, 10.

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observed, “Canada was giving official support to the sector theory to assist in establishing her claim to territory of which she did not have quite full control or which she thought was perhaps yet undiscovered but contiguous to her northern coast and within the sector in question.”5 In sharp contrast to the Hughes Doctrine, the sector principle did not call for settlement, colonization, or effective occupation. The polar policies of the United States and Canada had become polar opposites. With the Hughes Doctrine, the United States adopted the most conservative approach to the acquisition of polar sovereignty of any country with interests in the Arctic or Antarctic. By publicly announcing its use of the sector principle, Canada articulated one of the most liberal approaches. Although most Canadian officials realized that the sector principle was indefensible on strictly legal grounds, and understood the need for effective occupation in the Arctic, the sector served a political purpose by setting constraints on potential U.S. claims to undiscovered islands. The Americans privately noted their disagreement with Canada’s Arctic claims and its use of the sector principle in the 1920s and 1930s,6 but they chose not to jeopardize their positive relationship with their northern neighbor on other fronts over polar sovereignty. Cold War exigencies, however, eventually forced both countries to confront their differing ideas on sovereignty and international law. In the months after the Second World War, strategists transformed the Arctic from a distant frontier to an undefended route into the North American heartland. Northern defenses were portrayed as inextricably linked to American security, and the United States pushed for access to Canada’s Arctic to build airfields, weather stations, and eventually the Distant Early Warning (DEW) Line. Canadian officials grew apprehensive and cautious in authorizing new projects and installations, largely due to concerns over sovereignty. In the negotiations that followed, the United States could have invoked the Hughes

5 Pharand, Law of the Sea of the Arctic, supra note 1, 136–137. 6 Suggested Draft Note to the British Embassy, Department of State, Division of Western European Affairs, 16 September 1925, NARA, RG 59, CDF 1910–1929, Box  7156, File 800.014/Arctic 10; Office of the Historical Adviser, Department of State, to Mr. Hickerson, 21 September 1933, NARA, RG 59, CDF 1930–39, Box  4520, File 800.014 Antarctic/37-1/4; Department of State, Division of Western European Affairs, Territorial Sovereignty in the Polar Regions, 6 August 1926, p. 49, NARA, RG 59, CDF 1910–1929, Box 7156, File 800.014/ Arctic; and S.W. Boggs, Department of State, Office of the Historical Adviser, The Polar Regions: Geographical and Historical Data in a Study of Claims to Sovereignty in the Arctic and Antarctic Regions, 21 September 1933, NARA, RG 59, CDF 1930–39, Box  4522. File 800.014, Arctic/31.

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Doctrine as grounds to challenge Canada’s sector principle and its claims to many of the unoccupied islands in the Arctic archipelago. Such a challenge, however, would have jeopardized its broader political and strategic relationship with a key ally. Had the United States issued a formal and public recognition of all Canada’s claims, however, it would have strengthened the sector principle and set dangerous legal precedents, jeopardizing the evolving U.S. legal position vis-à-vis the Antarctic and Arctic Russia. Thus, the United States chose a middle road, enhancing its relationship with Canada in the Arctic without setting formal precedents that could have undermined the Hughes Doctrine and American interests in the polar regions more generally. Careful appraisal of the archival record suggests that, between 1924 and 1955, the United States carefully maintained an effective defense of legal position strategy that avoided the Pyrrhic victory it would have won by formally acknowledging or undermining Canada’s sector principle and Canadian Arctic sovereignty. From the onset of the Cold War, the United States quietly and privately conceded to Canada what it was not prepared to acknowledge in international law more generally: a more relaxed interpretation of effective occupation and ownership of uninhabited territories in polar regions than the Hughes Doctrine allowed. This served its broader political ‘good neighbor’ strategy while simultaneously defending its legal position. Accordingly, the historical record confirms the enduring relationship between international law and politics, and serves as an overlooked antecedent to the bilateral ‘agreement to disagree’ about differing interpretations or applications of law in the North American Arctic.

The Dog in the Manger

In the ancient Greek fable ‘the dog in the manger’, a dog lays in a manger full of grain and prevents the other animals from eating it, even though he has no desire to eat the grain himself. In 1936, Charles Cheney Hyde (the former U.S. State Department solicitor) insisted that his country “reveals no dog in the manger policy, when uncertain of what the future may bring, such a state is alert to preserve its rights, whatever they may be, and not find itself caught napping.”7 Despite Hyde’s denial, the Hughes Doctrine did represent a ‘dog in 7 Hugh Cummings, Division of European Affairs, Department of State, American Policy Relating to the Polar Regions, 28 July 1938, NARA, RG 59, CDF 1930–39, Box 4520, File 800.014 Antarctic/126.

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the manger’ approach to the polar regions. For decades, the United States could not decide if it wanted to make claims to various parts of the Arctic and Antarctic, so it set a standard for acquiring sovereignty in the regions that no country could meet. Although the Doctrine appeared to the world as a strong, confident statement, in reality it was born out of U.S. indecision and confusion. Samuel Boggs, the State Department’s geographic adviser and one of the leading U.S. government experts on polar affairs, had confirmed in 1933 that the Department’s approach reflected an attempt to evade framing an affirmative position on the sovereignty issue.8 The Hughes Doctrine left many questions unanswered. What actual steps did a State need to take to acquire territory in polar regions? No one in Washington clarified what constituted effective occupation or ‘actual settlement’ in polar regions, and the State Department struggled to determine how much area could be ‘considered occupied by a single colony or military post’. Was the physical settlement called for in the Doctrine necessary or even possible, given the harsh climatic conditions of the polar regions? Some Americans even questioned whether the United States should formally reject the sector principle, including well-known New York lawyer David Hunter Miller when invited to contribute an article on Arctic sovereignty to Foreign Affairs.9 Even though it contradicted the Hughes Doctrine, some officials acknowledged that the sector principle would be a handy tool if expeditions discovered islands in the Arctic basin north of Alaska.10 Although these questions popped up periodically in the 1920s and 1930s, the State Department exerted little effort in answering them.11 The Hughes Doctrine remained the public face of U.S. polar policy, but in practical terms, the United States remained a rather lazy, confused and indecisive dog in the polar manger.

8 9 10

11

Office of the Historical Adviser, Department of State, to Mr. Hickerson, 21 September 1933, NARA, RG 59, CDF 1930–39, Box 4520, File 800.014 Antarctic/37-1/4. David Hunter Miller, “Political Rights in the Arctic,” Foreign Affairs 4 (1925): 47–60. Department of State, Division of Western European Affairs, Territorial Sovereignty in the Polar Regions, 6 August 1926, pg. 49, NARA, RG 59, CDF 1910–1929, Box  7156, File 800.014/Arctic; Boggs, supra note 6; and S.W. Boggs to the Acting Secretary, 11 August 1930, NARA, RG 59, Entry 5245, Box 2, Folder 15, File North Polar Regions: Sovereignty Claims by U.S. For an explanation of U.S. polar policy during these decades, see: H. Robert Hall, “The ‘Open Door’ into Antarctica: An Explanation of the Hughes Doctrine,” Polar Record 25 (1989): 137–140 and Jason Kendall Moore, “Tethered to an Iceberg: United States Policy Toward the Antarctic, 1939–1949,” Polar Record 35 (1999):125–134.

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Slicing Up the Polar Pie

In the meantime, States’ use of the sector principle proliferated, with Canada and the Soviet Union employing it in the Arctic, and Britain, New Zealand, Australia and France claiming sectors in the Antarctic. Pharand astutely notes that Ottawa never formally incorporated the sector principle in any statute after Stewart’s proclamation in 1925, but it proceeded through semi-official actions and pronouncements to stake out its terrestrial claim to the Arctic along those lines.12 Thus, while Ottawa acknowledged the need for some form of occupation of its Arctic islands (particularly police posts and annual ship and sled patrols) it continued to espouse the sector principle as sufficient demonstration of control over its domain. For example, a 1926 Order-in-Council established the Arctic Islands Game Preserve comprising all the land within the Canadian sector.13 Oswald Sterling Finnie, the director of the Northwest Territories and Yukon Branch of the Department of the Interior, emphasized that the Preserve “and its appearance on our maps also has a bearing on British sovereignty in the North and serves to notify the world at large that the area between the 60th and 141st Meridians of Longitude, right up to the Pole, is owned and occupied by Canada.”14 Because no country formally protested Canada’s use of the sector principle, some Ottawa officials optimistically surmised that it had gained international legal credibility. In 1930, the General Staff of the Department of National Defence pointed to a 1904 map showing Canadian sector lines and argued that “this official map was published twenty-six years ago, and obviously a tacit acquiescence during over a quarter century on the part of Norway, the United States and of other nations bars their right to protect [sic: protest] the Canadian claim.” A subsequent comment noted that “[s]o far as can be determined, the 12

13

14

See Pharand, Canada’s Arctic Waters, supra note 1, 5–8 and Smith, supra note 4, 215. The most thorough introductions to Canada’s Arctic sovereignty practice in the interwar era are Janice Cavell and Jeff Noakes, Acts of Occupation: Canada and Arctic Sovereignty, 1918–25 (Vancouver: UBC Press, 2010) and Gordon W. Smith, A Historical and Legal Study of Sovereignty in the Canadian North: Land, 1870–1949 (P. Whitney Lackenbauer, ed.) (Calgary: University of Calgary Press, forthcoming 2014). Referred to in Pharand, Canada’s Arctic Waters, supra note 1, 51, and 1929 map on 52. Pharand notes that the Arctic Islands preserve was extended southward on 20 September 1945, and the northward limits were still described in sector form. See also: LAC, RG 25, vol. 4252, file 9057–40 pts. 1–2. O.S. Finnie, Director, NWT and Yukon Branch, Department of the Interior, to Dr. O.D. Skelton, Under-Secretary of State for External Affairs, 31 August 1926, LAC, RG 25, vol. 4252, file 9057–40, pt. 2.

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countries mainly interested in the Canadian Arctic Archipelago have not officially accepted the boundaries prescribed by Canada in 1904, and re-affirmed in 1925. On the other hand, silence can reasonably be accepted as acquiescence.”15 A British Foreign Office report which claimed that the sector principle was on its way to general acceptance, even by the United States, bolstered this idea.16 Other countries also embraced the sector principle. In 1926, the Soviet Union’s Central Executive Committee issued a decree claiming “all lands and islands, both discovered and which may be discovered in the future, which do not comprise at the time of publication of the present decree the territory of any foreign state recognized by the Government of the USSR, located in the northern Arctic Ocean, north of the shores of the Union of Soviet Socialist Republics up to the North Pole.”17 In 1928, the Soviet interpretation of the principle seemed to become even more radical with the publication of W.L. Lakhtine’s “The Right to the Northern Polar Regions,” which asserted his country’s entitlement to extend its sovereignty over the ice, sea, air and land in its sector.18 Thus, while the United States espoused a strict requirement for effective occupation, the Soviet Union, like Canada, made no reference to this requirement. By the early 1930s, the United Kingdom, New Zealand, Australia and France had employed the sector principle to claim vast portions of the Antarctic. These sectors emanated from the coastlines discovered and explored by the claimant nations, with straight boundaries running southwards to the Pole. As in the Arctic, states framed these sectors as geographic extensions of coastal 15 16

17

18

General Staff, Department of National Defence, Canadian Political Rights in the Arctic, 8, 11, LAC, RG 25, file 9057–40 pt.2. L. Collier, Memorandum Respecting Territorial Claims in the Arctic to 1930, 10 February 1930, United Kingdom, National Archives (Kew), DO 35/167/7, Territorial Claims in the Arctic. Decree of the Presidium of the Central Executive Committee of the USSR, “Proclamation of Lands and Islands Located in the Northern Arctic Ocean as Territory of the USSR,” 16 April 1926, Sobranie Zakonov SSSR No. 32(203), reprinted in William Elliott Butler, Northeast Arctic Passage, Vol.1 (Alphen aan den Rijn, Netherlands: Sijthoff & Noordhoff, 1978), 174. The area between the meridian 32°04’35” E longitude from Greenwich and the meridian 168°49’ 30” W. longitude from Greenwich. For a general overview, see: Leonid Timtchenko, “The Russian Arctic Sectoral Concept: Past and Present,” Arctic 50 (1997): 29–35. W. Lakhtine, “Rights Over the Arctic,” American Journal of International Law 24 (1930): 710–711 and see: L. Collier, Memorandum Respecting Territorial Claims in the Arctic to 1930, 10 February 1930, National Archives of Australia (Canberra), CA 19, Department of Defence (II) (Central Administration), B197, 1972/2/593.

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strips they considered firmly under their sovereignty.19 All of these states had done little to effectively occupy the Antarctic sectors they claimed beyond legislative acts and the occasional expedition—none of which approached the standards of the Hughes Doctrine. Accordingly, and much to the chagrin of the U.S. State Department, the Soviet Union, Canada and the United Kingdom claimed seventy-five per cent of the two polar regions by 1933, much of it without physical acts of occupation.20

Guarding the Manger

In the face of all these sector claims, the United States came the closest to directly challenging Canada’s position in the 1920s. When Stewart announced his government’s reliance upon the sector principle in Parliament, a member of the State Department’s legal division told a Canadian official that Canada’s claims were not “worth a damn.”21 While American officials conceded that Canada was attempting something “approaching effective occupation,” it only had a “slender line of police posts extending along the eastern boundary of the territory claimed.”22 The United States remained skeptical that Canada had established effective occupation. A draft reply to Ottawa in 1925 emphasized that the recognized rules of international law require the establishment and maintenance of an effective occupation of news lands as a prerequisite to the acquisition of sovereignty and it is not understood that such occupation has been effected by Canada in some of the islands within the limits referred to above.23 19

20

21 22 23

The United Kingdom claimed their Antarctic sector in 1908 and again in 1917, New Zealand in 1923, France in 1924, and Australia claimed the largest Antarctic sector in 1933. Subsequent sector claims were made in the Antarctic by Norway in 1939, Chile in 1940 and Argentina in 1942. See generally: C.H.M. Waldock, “Disputed Sovereignty in the Falkland Islands Dependencies,” British Yearbook on International Law 25 (1948): 311, 340. Department of State, Division of Western European Affairs, Territorial Sovereignty in the Polar Regions, 6 August 1926, NARA, RG 59, CDF 1910–1929, Box 7156, File 800.014 and Anna O’Neill, The Arctic Sector Claimed by Russia and American Claims Therein, 30 October 1933, NARA, RG 59, Entry 5245, Box 1, Folder 2, File Polar Regions, Sovereignty. Sector Principle. Cavell and Noakes, supra note 12, 239. Department of State, supra note 20. D.H. Dinwoodie, “Arctic Controversy: The 1925 Byrd-MacMillan Expedition Example,” Canadian Historical Review 53 (1972): 60 and Suggested Draft Note to the British Embassy,

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The note, however, was never sent. Not wanting to create a conflict with its northern neighbor, the State Department dropped the matter for the time being.24 Although hesitant to provoke an open debate, U.S. officials avoided any actions that could be construed as acceptance of any country’s polar claim or of the sector principle in general—and they ignored the Soviet sector claim entirely. When the United Kingdom notified the State Department of their claims to the southern continent in the face of Richard Byrd’s first Antarctic expedition in 1928, the United States ensured that nothing in their response could be misconstrued as recognition of any “methods of acquiring sovereignty and dominion over newly discovered lands.” The State Department emphasized that its reply was “intended…further to safeguard ourselves against such claims to sovereignty as have been announced, primarily in the North Polar Regions, by laying down, on maps, sectors running to the North Pole from the extreme points of nearest territory owned south of the North Pole by the country concerned.”25 The following year, the U.S. Navy decried the application of the sector principle in the Arctic as an illegal attempt by a few of the world’s powers to unfairly divide up a large portion of the globe—although the State Department, with its dog in the manger mentality, did not official reject the principle.26 The State Department was clearly dissatisfied with the legal situation in the polar regions by the 1930s and contemplated action. It tinkered with a draft congressional resolution in 1933 that would have rejected any claims of sovereignty that did not meet the ‘accepted requirements of international law’ or lacked recognition in an international agreement to which the United States was a party. The draft resolution noted that many countries staked claims to polar areas without effective occupation or jurisdiction and suggested that Congress “authorize and request the President to take appropriate steps to lay

24

25

26

Department of State, Division of Western European Affairs, 16 September 1925, NARA, RG 59, CDF 1910–1929, Box 7156, File 800.014/Arctic 10. On this theme, see also Cavell and Noakes, supra note 12, 226–241, and Robert Bothwell and John Kirton, “A Sweet Little Country: American Attitudes Toward Canada, 1925–1963,” Queen’s Quarterly (1983): 1078–1102. Memorandum to Accompany Reply to British Embassy’s Note No. 526, 17 November 1928, 28 February 1929, NARA, RG 59, CDF 1910–1929, Box  7156, File 800.014, Antarctic/4. Letter from the Secretary of the Navy (Adams) to the Secretary of State (Stimson), 23 Sept. 1929, M.S. Department of State, file 840.014 Arctic/26, quoted in Pharand, Law of the Sea of the Arctic, supra note 1, 142.

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claim to all land and islands in the polar regions to which the United States is entitled to assert a claim because of discoveries, exploration and other acts of officers and men of official American expeditions and of American citizens.”27 Through this resolution, the United States would have rejected every polar claim in existence (apart from the Danish claim to Greenland which it had explicitly recognized)28 and opened up the Arctic and Antarctic to American claims. The United States still supported the Hughes Doctrine, so any ‘appropriate steps’ would have required ‘actual occupation’ of the areas claimed, but officials remained unconvinced that it was in the national interest to invest resources and efforts to take steps to acquire what were seen as ‘frozen wastes’ in the midst of the Great Depression—even though some advisors also suggested that the potential for U.S. exploration and activities in the Canadian Arctic to support U.S. sovereignty claims was fast disappearing. Boggs admitted that the United States had interests and possible claims in the Canadian Arctic sector, but predicted that these claims could “not be presented, however meritorious, if allowed to lapse much longer” because the Canadians were “rather effectively” establishing jurisdiction in their sector.29 By 1938 the State Department predicted that the time was drawing near when the United States would have to abandon its passive polar policy and give “serious consideration…to whether this Government should take steps to assert its territorial claims in the Arctic and Antarctic regions, or whether we in fact do not have and do not anticipate having a desire to acquire such territories.”30 Officials feared that the Hughes Doctrine was handicapping U.S. polar interests, pointing to the Permanent Court of International Justice’s landmark 1933 Eastern Greenland Case31 as proof that the doctrine did not sufficiently consider the climatic conditions of the polar regions and demanded too much in the way of occupation.32 When Washington contemplated making an 27

28 29

30 31 32

Third Draft, Resolution Relating to the Arctic and Antarctic Regions, 4 November 1933, NARA, RG 59, Entry 5245, Box 2, Folder 15, File North Polar Regions: Sovereignty Claims by U.S. Lawrence Preuss, “The Dispute Between Denmark and Norway Over the Sovereignty of East Greenland,” American Journal of International Law 26 (1932): 474. Nevertheless, Boggs hesitated to suggest that “such claims be capitalized on.” Office of the Historical Adviser, Department of State, to Mr. Hickerson, 21 September 1933, NARA, RG 59, CDF 1930–39, Box 4520, File 800.014 Antarctic/37-1/4. Hugh Cummings, Division of European Affairs, Department of State to Mr. Moffat, 28 July 1938, NARA, RG 59, CDF 1930–39, Box 4520, File 800.014 Antarctic/126. Legal Status of Eastern Greenland (Denmark v. Norway), [1933] P.C.I.J. (Ser. A/B) No. 53. Cummings, Division of European Affairs, Department of State, American Policy Relating to the Polar Regions, 28 July 1938, NARA, RG 59, CDF 1930–39, Box 4520, File 800.014

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Antarctic claim in 1939, however, it still ordered the U.S. Antarctic Service Expedition to establish several permanent stations in the Antarctic, which they planned to continuously occupy as evidence of colonization—an obvious indication that the United States was unprepared to give up the strict standards set by the Hughes Doctrine.33 While the United States seriously considered declaring sovereignty over certain polar areas and even laid the groundwork for claims in the Antarctic sectors of Australia, the United Kingdom and New Zealand, it did not prepare plans to do so in the Canadian Arctic sector. The State Department believed that the United States had some rights to several High Arctic islands and that Canadian attempts at effective occupation did not meet the high standards of the Hughes Doctrine, but it is noteworthy that the United States took no direct action to undermine Canada’s sector claim.34 This partly reflected the State Department’s respect for Canada’s attempts at effective occupation in the Arctic, which it considered stronger than those of any other country except the Soviet Union. Furthermore, U.S. explorers were also far more active in the Antarctic than the Arctic during the 1930s, making the southern continent the logical focus of U.S. interest. Finally, the United States did not see any pressing need to establish bases on Canada’s Arctic islands and considered the possibility of finding undiscovered land within Canada’s so-called ‘sector’ to be unlikely. In other words, the United States had little incentive to challenge the Arctic claims of its neighbor and ally.35 In reserving its rights, interests and position in the polar regions by refusing to recognize anyone else’s claims, however, the question lingered: What would happen if the United States had pressing interests in the Canadian Arctic?

33 34

35

Antarctic/126. For a recent analysis of the Eastern Greenland Case, see Janice Cavell, “Historical Evidence and the Eastern Greenland Case,” Arctic 61 (2008): 433–441. F.M. Auburn, Antarctic Law and Politics (London: C. Hurst & Company, 1982), 63–65. See: House of Commons, Debates, 20 May 1938, 3081 and Pharand, Law of the Sea of the Arctic, supra note 1, 138. In May 1938, T.A. Crerar, the Minister of Mines and Resources, again publicly tied Canada to the sector principle in the House of Commons stating: “What is known as the sector principle, in the determination of these areas is now very generally recognized, and on the basis of that principle as well as our sovereignty extends right to the pole within the limits of the sector. My own view is that our supremacy there is established to a point where it could not be successfully challenged by any other country.” House of Commons, Debates, 20 May 1938, 3081. S.W. Boggs, Note, 26 March 1938, NARA, RG 59, Entry 5245, Box 2, Folder 15, File North Polar Regions: Sovereignty Claims by United States; Cummings supra note 7.

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During the Second World War, U.S. defense projects in the Canadian Northwest resurrected official anxieties in Ottawa about potential U.S. threats to Canadian sovereignty. Although Prime Minister William Lyon Mackenzie King allowed the Americans onto Canadian soil with few constraints, he was suspicious of their intentions and worrisome reports in 194336 spurred King to assert control in the North. He appointed Brigadier W.W. Foster as a special commissioner to oversee the defense projects in the Northwest, blocked some American initiatives to build more roads and air-staging routes, and secured assurances that the United States would withdraw its troops from the region after the War. Furthermore, the Canadians bought back permanent facilities and installations that the United States had built in the North.37 As the War progressed, officials in Washington acknowledged that they had to respect their northern neighbor’s interests—and its chronic insecurities. Accordingly, Canada emerged from the War with its sovereignty intact and senior decisionmakers in Ottawa had learned valuable lessons. They would not grant blanket approval for defense projects, recognizing the value in negotiating specific agreements to protect Canada’s sovereign interests. During defense negotiations in the early Cold War, Canadian diplomats—informed by their wartime experience—were both attentive and responsive to perceived or potential sovereignty encroachments.38

Defending the Continent, Defending Sovereignty

As relations between the Soviet Union and the United States deteriorated at the end of the Second World War, North American defense analysts replaced 36

37

38

See: Vincent Massey, What’s Past is Prologue (Toronto: Macmillan, 1963), 371; Clyde Sanger, Malcolm MacDonald: Bringing an End to Empire (Montreal & Kingston: McGillQueen’s University Press, 1995), 237–239; William Lyon Mackenzie King Diary, 29 March 1943,  at  http://www.collectionscanada.gc.ca/databases/king/001059-119.02-e.php ?&page_id_nbr=24646&interval=20&&&&PHPSESSID=03pod8ei1qrfji3naoi9unb1m5; and Shelagh Grant, Sovereignty or Security? Government Policy in the Canadian North, 1936–1950 (Vancouver: UBC Press, 1988), 103–115. Stanley W. Dziuban, Military Relations Between the United States and Canada, 1939–1945 (Washington: Office of the Chief of Military History, Department of the Army, 1959), 217–228, 331–334. See: Elizabeth Elliot-Meisel, Arctic Diplomacy: Canada and the United States in the Northwest Passage (New York: Peter Lang, 1998), 43–56 and Whitney Lackenbauer, “Right and Honourable: Mackenzie King, Canadian-American Bilateral Relations, and Canadian Sovereignty in the Northwest, 1943–1948,” in Mackenzie King: Citizenship and Community,

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the Mercator projections with polar projection maps. Looking at the world from the perspective of the North Pole, the United States’ proximity to the Soviet Union became strikingly obvious.39 Strategists started to make nightmarish predictions of hostile bombers flooding over the northern approaches to wreak havoc on the continent’s urban, industrial heartland. On 5 December 1945, General Henry H. ‘Hap’ Arnold, the retiring Commander in Chief of the U.S. Army Air Force, declared publicly and unequivocally that the Arctic would become the frontline in a potential conflict.40 Accordingly, U.S. defense planners contemplated ambitious projects to serve the broader interests of continental defense. Samuel Boggs, the resident polar expert at the State Department, anticipated that Ottawa would deny the United States full access to the Arctic archipelago because of sovereignty concerns. This problem could be easily resolved if Washington simply acknowledged Canada’s sovereignty “over all of the land which is now known to lie north of Canada and west of Greenland.”41 Graham Parsons of the British Commonwealth Affairs division at the State Department rejected this proposal: I would not think it necessary to make any pronouncement by way of quid pro for the concession from Canada of permitting Americans to participate in these Arctic exercises. …Our joint defence cooperation is now so close that we could secure any participation desired by asking for it.42 Events proved that he was overly optimistic.

39 40 41

42

eds. John English, Ken McLaughlin, and Whitney Lackenbauer (Toronto: Robin Brass Studio, 2002), 154. Kenneth C. Eyre, “Custos Borealis: The Military in the Canadian North,” unpublished Ph.D. thesis, University of London—King’s College, 1981. Referred to in David Beatty, The Canadian-United States Permanent Joint Board on Defence (Ann Arbor: University Microfilms International, 1969), 117. Samuel Boggs to J.G. Parsons, 27 November 1945, NARA, RG 59, CDF 1945–49, Box 6037, File 842.9243 / 12–745. Emphasis in the original. Boggs also asserted that the United States should specify that it did not acknowledge the “sector principle as a principle.” One of Boggs’ Canadian friends, Commander Paul Smith, also insisted that the Department of External Affairs recognized the limitations of the sector principle and gave orders to its officers not to commit Canada to the theory. He was told this by Wing Commander P.A. Cumyn, formerly assistant secretary of the Privy Council of Canada. J.G. Parsons to Mr. Wailes, Division of British Commonwealth Affairs, 7 December 1945, NARA, RG 59, CDF 1945–49, Box 6037, File 842.9243/12-745.

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In the spring of 1946, U.S. defense officials peppered Ottawa with proposals to improve their capabilities in the Arctic, including the establishment of several permanent weather stations on uninhabited islands in the archipelago.43 The United States repeatedly assured Canadian officials that the weather stations program would not jeopardize Canadian sovereignty, but never offered to recognize Canada’s sector claim or title to the islands of the entire archipelago.44 When politicians and civil servants raised quiet concerns about whether Canada had established clear sovereignty over its remotest Arctic islands— particularly areas in which the Americans now proposed development projects, Ottawa delayed approval for the joint weather stations project. Although the International Court in the Eastern Greenland Case45 had set a modest threshold for ‘effective occupation’ in unpopulated Arctic regions, Americanbuilt installations in remote areas where few Canadians had ever visited could be seen as problematic.46 A U.S. Air Coordinating Committee report from December 1945 exacerbated Canadian worries with its recommendation that American reconnaissance flights should look for undiscovered Arctic islands in the ‘unexplored’ area north of Prince Patrick Island and west of Grant’s Land (Ellesmere)—areas that theoretically fell within Canada’s sector—which the United States could claim to serve as platforms for weather stations and polar communications.47 43

44

45 46 47

On these U.S. proposals, see: Shelagh Grant, Polar Imperative: A History of Arctic Sovereignty in North America (Vancouver: Douglas & McIntyre, 2011), 283–300; David Bercuson, “Continental Defense and Arctic Security, 1945–50: Solving the Canadian Dilemma,” in The Cold War and Defense, eds. K. Neilson and R.G. Haycock (New York: Praeger, 1990), 153–170; and P. Whitney Lackenbauer and Peter Kikkert, “Sovereignty and Security: The Department of External Affairs, the United States, and Arctic Sovereignty, 1945–68,” in In the National Interest: Canadian Foreign Policy and the Department of Foreign Affairs and International Trade, 1909–2009, eds. Greg Donaghy and Michael Carroll (Calgary: University of Calgary Press, 2011), 101–120. Though usually concerned by U.S. activities, even R.M. Macdonnell noted that “[i]n presenting this request, the United States Embassy made it clear that there was no question of interfering in any way with Canadian sovereignty. I think that their approach to the problem should reassure your minister if he is troubled by any thought of Canadian sovereignty in the Arctic being called into question by the United States.” R.M. Macdonnell, Associate Under Secretary of State for External Affairs, to Dr. Charles Camsell, 11 May 1946, Library and Archives Canada (LAC), RG 25, vol. 3347, file 9061-A-40. Eastern Greenland Case, supra note 31. See, for example, R.M. Macdonnell to A. Heeney, 3 November 1945, LAC, RG 25, vol. 3047, file 9061-A-40. For the December 1945 Air Coordinating Committee reports, see: LAC, RG 25, vol. 3047, PJBD file 113. See also: Arctic Aviation Development Program for the United States

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The report indicated that “the U.S. may not have recognized” Canada’s claims to everything within its sector and requested more research on Canada’s position.48 Although this caused alarm in Ottawa, Canada should perhaps have taken comfort in the general tenor of the report. By focusing on potential ‘undiscovered’ islands, the report implicitly acknowledged that all discovered islands already belonged to Canada—a significant outcome for Canadian sovereignty. The 1946 Canadian Cabinet Defence Committee’s study on Arctic sovereignty issues, largely written by Vice Chief of the General Staff D.C. Spry, highlighted the vulnerability of Canada’s sovereignty claims in the ‘Canadian sector’. Sovereignty itself may be roughly defined as power, right or authority over a clearly defined and delimited area. In the case of the Canadian Arctic definite sovereignty is asserted, in right of Canada, over all known land masses and islands within the “Canadian sector” of the Arctic. However these claims are largely based either on contiguity to continental Canada, or on original discovery and exploration (principally by British explorers). Due to the desolate nature, of the areas in question, these claims have little support on the grounds of effective occupation, settlement or development. Thus, while Canada’s claims to sovereignty to these regions have not heretofore been seriously challenged, they are at best somewhat tenuous and weak.49 Overlooking government activities which served to assert sovereignty in the interwar years, the study suggested that a lack of effective occupation, settlement or development weakened Canada’s position. The fact that these claims have not been seriously challenged in the past does not mean that this fortunate situation will continue indefinitely into

48 49

Recommended by the Standing Subcommittee on the Arctic, 6 November 1945, NARA, RG 330, Entry 341A, Box 451, Folder 1, File “Geophysics and Geography.” In the summer of 1945, the Air Coordinating Committee, composed of the Assistant Secretaries for Air of the Department of State, War, Navy, Commerce and the Chairman of the Civil Aeronautics Board, appointed a Sub-Committee on the Arctic. December 1945 Air Coordinating Committee reports, id. Department of National Defence to Cabinet Defence Committee, “Sovereignty in the Canadian Arctic in Relation to Joint Defence Undertakings,” [May 1946], and marginalia, D.M. Page, ed., Documents on Canadian External Relations, volume 12: 1946 (Ottawa: Queen’s Printer, 1977), 1556.

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the future. …In the past these regions represented little but empty space, and their very isolation preserved them from any significant intrusion.50 Given their newfound strategic importance, Spry worried that “hitherto unknown islands may be discovered within the Canadian sector by a foreign power, and claim laid to them by right of discovery and primary occupation.”51 The United States “tacitly acknowledges Canadian sovereignty over…discovered islands,” he noted, but it is of great importance that Canada should carefully safeguard her sovereignty in the Arctic at all points and at all times, lest the acceptance of an initial infringement of her sovereignty invalidate her entire claim, and open the way to the intrusion of foreign interests of a nature which might create an ultimate threat to national security. At the same time it should not be forgotten that the Canadian Arctic is an integral part of the North American continent and her exclusive claims to sovereignty must be fitted into the overall requirements of continental security and defence. This Arctic area is considered as vital to the United States as a defence frontier as to Canada, and its military security requires closely coordinated action.52 Spry did not advocate closing the Canadian frontier to the Americans, but recommended allowing access while balancing the twin imperatives of sovereignty and regional security. “The problem is thus seen to devolve into finding a suitable modus operandi,” he suggested. “This must permit the granting of essential facilities and rights to the United States without any consequent infringement of Canadian sovereignty of a nature which would give an opening to another power (not associated with Canada in the defence of the North American continent) to make similar demands.”53

Forcing the Dog Out of the Manger?

In Ottawa, the major debate over how to proceed was between those who wanted to force the United States into a public recognition of Canada’s 50 51 52 53

Id. Id., 1557. Id., 1558. Id. Hume Wrong noted that Canada’s claim was stronger than Spry’s memorandum suggested. See: Cabinet Defence Committee Minutes, 6 June 1946, LAC, RG 25, PJBD File 113.

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sovereignty along the lines of the sector principle and those who thought more informal guarantees were the best option. Lester Pearson, the Canadian Ambassador in Washington, argued that Ottawa should secure “public recognition of our sovereignty of the total area above our northern coasts, based on the sector principle.”54 Pearson optimistically suggested that we might persuade the United States authorities that it would be in their own interest at this time to reinforce our claim to the area under the sector principle. Their hesitations in the past have been inspired, no doubt, by a feeling that they might conceivably wish at some future time to occupy some of this area themselves, or at least to establish certain facilities thereon, which would be more difficult if our sovereignty had been formally recognized by them. Nevertheless, it might be pointed out to them that, as long as this question remains undetermined in international law, there is, always the possibility of some other country, notably Russia, establishing meteorological and other stations in that area on islands that have not been used or occupied by any other country. An open and formal statement on some suitable occasion by the United States that Canada’s sovereignty over this area is recognized might remove the possibility of such a contingency; or at least make it more difficult to bring it about. The deterrent effect that this would have on other states would, it could be argued, be of much greater value to the United States than keeping the position uncertain because of a possible desire on its own part to exploit that uncertainty in the future. Pearson recognized the dog in the manger policy of the United States and wanted to challenge it, trading public recognition of Canada’s sovereignty for access to Canada’s Arctic. Although Pearson and a few senior officials in Ottawa advocated a resolutely nationalistic and direct approach,55 Canadian officials did not follow Pearson’s 54

55

Ambassador in the United States to Acting Undersecretary of State for External Affairs, 5 June 1946, Documents on Canadian External Relations vol.12: 1946, supra note 49, 1565–1566. See also: L.B. Pearson, “Canada Looks ‘Down North’,” Foreign Affairs 24 (1946): 638–647, in which Pearson publicly connected Canada to the sector principle. Pearson explained that Canada used the principle to claim not only Canada’s northern mainland, but also the islands and the frozen sea up to the North Pole—the first public indication of maritime claims beyond the territorial sea. See: Shelagh Grant, “Northern Nationalists: Visions of a ‘New North’, 1940–1950,” in For Purposes of Dominion: Essays in Honour of Morris Zaslow, eds. K. Coates and W.R. Morrison

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proposed course—a trajectory that would have run aground on the shoals of U.S. espoused legal principle. Recognizing Canada’s sector claim in the Arctic would have implied U.S. recognition of the sector theory more broadly, thus strengthening the Soviet Union’s Arctic position as well as various states’ Antarctic claims. As long as the sector principle was not established in international law, the U.S. government could contemplate claiming Antarctic territory within other claimant states’ sectors and could operate freely throughout the southern continent.56 This freedom also had strategic implications, given that the U.S. military considered Antarctica valuable for training and experimentation.57 In short, the United States could not publicly recognize Canada’s sovereignty, which was tied to the sector principle, without prejudicing its legal interests more broadly. U.S. hesitation also stemmed from its continuing strict definition of effective occupation. Public recognition of Canada’s claims would have invalidated the Hughes Doctrine and broadcast to the world that the United States considered the Canadians’ liberal interpretation acceptable, thus setting a precedent for the required level of effective State activity. Despite the Eastern Greenland Case, the State Department struggled to find a coherent set of “clear legal principles” that dictated how polar territory could be properly acquired.58 The tendency of international lawyers to champion self-interested legal interpretations that brought maximum benefit to their own nation heightened this confusion.59 Throughout 1946, the United States tried to ascertain an acceptable pattern or level of State occupation but failed to arrive at a clear set of guidelines to evaluate State sovereignty in the southern polar region. In the Antarctic context, the State Department found it “doubtful whether continued activity on the part of individual countries will ever bring the situation to maturity (Toronto: Captus University Publications, 1989), 47–69. See also Lieutenant-General C. Foulkes, Chief of the General Staff, to Chief of the Air Staff, 31 May 1946, Canada, Department of National Defence, Ottawa, Directorate of History and Heritage (DHH) 2002–17, Box 113, File 2, pt. 1. 56 Boggs, supra note 6. The other idea prevalent in the State Department in the postwar years focused on making the Antarctic into an international zone administered by a commission of nations or the United Nations. This idea still required the sector principle not be recognized or enforced in the Antarctic. 57 Peter Beck, International Politics of Antarctica (London: Croom Helm, 1986), 37. 58 Department of State, Polar Regions: Policy and Information Statement, 1 July 1946, NARA, RG 59, CDF 1945–49, Box 4073, File 800.014 Antarctic 7–146. 59 See: James H. Brewster, “Report on the Arctic, Atlantic Division Air Transport Command,” Headquarters, Atlantic-Division Air Transport Command, Report on the Arctic, 1946, NARA, RG 319, Entry 82 (A1), Box 2975.

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for settlement on clear legal principles.”60 The United States was hesitant to acquiesce to any country’s sovereignty claims in either polar region before international law became clearer. Ultimately, Canada did not force the legal issue. Most External Affairs officials recommended avoiding (formally advocating) a position which might trigger an outright rejection by the United States of Canada’s application of the sector theory.61 Hume Wrong, acting Under-Secretary of State for External Affairs, understood the situation best. If Canada based its claims on exploration and occupation, the United States might accept them, but this did not address the question of sovereignty over any undiscovered islands north of the mainland.62 Accordingly, Wrong recommended that Canada should wait to see how international law on sovereignty in polar regions developed before taking a firm stand.63 He urged Canadian officials to cooperate with the Americans, on the basis of practical, mutual interest, rather than forcing them into a legal corner. While Canadian sovereignty over remote territory remained “unchallenged but not unchallengeable,” it was politically and legally astute to work with the United States and avoid provoking a challenge.64 A prudent, cautious solution encouraged joint projects where Canada retained full title and control over its territory and any permanent facilities, while the United States helped to build, equip and operate Arctic stations that served broader North American interests.65

To Challenge or Not to Challenge?

When the Canadians resisted the U.S. overtures to access the Arctic for weather stations and other northern defence projects in 1946, the United States contemplated applying the strict standards set by the Hughes Doctrine to challenge Canada’s sovereignty. The intelligence branch of the Atlantic Division, Air Transport Command, asked whether, and on what grounds, the United States could, “either by pleading military necessity, or by establishing a 60 61

Department of State, supra note 58. “United States Claims in the Antarctic,” Note for Mr. Wrong from R.A.J. Phillips, 12 June 1946, LAC, RG 25, vol. 3347, file 9061-A-40. 62 Hume Wrong to Mr. Abbot, 13 June 1946, LAC, RG 2, Vol. 56, File A-25, Arctic 1944–49. 63 Hume Wrong to Pearson, 30 December 1946, LAC, RG 25, Vol. 2145, File A-2/2-10, Vol. 1. 64 H. Wrong to Secretary to the Cabinet, 24 June 1946, Documents on Canada’s External Relations vol. 12: 1946, supra note 49, 1569. 65 “Sovereignty in the Canadian Arctic in Relation to Joint Defence Undertakings,” 1558–1561 and Bercuson, supra note 43, 157–158.

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legal claim to one or more Arctic areas…justify undertaking a program of polar defence without the consent of Canada.”66 Intelligence officer Lt.-Colonel James Brewster pointed out that the Canadian Arctic was “little-known, only incompletely explored, and inadequately administered and patrolled.” In his view, Canada had done little to actually ‘settle’ the Arctic, and its decision to close police posts in remote regions such as Ellesmere Island in the interwar years had eroded its claim to effective occupation. Under the vague U.S. conception of effective occupation, Canada arguably had not done enough to occupy its Arctic islands, especially its northernmost islands. Accordingly, “the United States could present a fairly well documented legal defense in support of any action its Government desired to take in Melville Island, Prince Patrick Island, and Grant Land [northern Ellesmere Island], particularly since the American Government has consistently maintained that sovereignty cannot be claimed without a degree of effective occupation, colonization and use that until the present has not been achieved in the Canadian Arctic.”67 In short, U.S. reports intimated that the Americans could use the Hughes Doctrine to challenge Canada’s claims if they needed immediate access to the Arctic. Despite these legal arguments, both the American 1946 reports68 recommended against this course of action. First, there was no guarantee that a legal challenge would succeed. While Canada’s claims did not meet U.S. standards for effective occupation, the United States concluded that an international judicial body would likely find in Canada’s favor in light of the Eastern Greenland Case outcome that polar sovereignty did not appear to require development or mass settlement comparable to benchmarks for occupation in temperate regions.69 The State Department arrived at the same conclusion in its July 1946 classified policy statement on the polar regions, which provided that, while the United States had not “formally recognized Canadian claims within any alleged ‘sector’ nor recognized Canadian title to any specific islands,” there was little incentive or “inclination to challenge Canadian claims.”70 By this point, they conceded the Canadians were “in a position to support their claims to superior title by concrete evidence of acts of possession and control exercised without challenge for a considerable period.”71 66 67 68 69 70 71

Air Transport Command, “Problems of Canadian-United States Cooperation in the Arctic,” 29 October 1946, NARA RG 319, Entry 82 (A1), Box 2785. “Report on the Arctic,” supra note 59, and “Problems of Canadian-United States Cooperation in the Arctic,” supra note 66. Id. Id. Department of State, “Polar Regions: Policy and Information Statement,” supra note 60. Id.

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Political considerations also militated against U.S. assertiveness. Although the Hughes Doctrine provided legal grounds for the United States to challenge Canada’s claims, the repercussions on bilateral relations would be “so severe that the violation, except in the case of emergency, would not be worth it.”72 Such a breach would deal a greater blow to “American security system than a failure to obtain Arctic bases.” Consequently, U.S. experts advocated cooperation and joint defense, recommending that the United States make it “unequivocally clear that this country entertains no possessive design upon the polar territories to which Canada lays claim.”73 Although the Americans could not explicitly recognize Canada’s sector, “the dictates of political expediency… forbid [U.S.] encroachment” on any territory lying within it.74 The United States would respect Canada’s claims—even to new lands discovered in the so-called Canadian sector—to avoid a Pyrrhic victory that might serve shortterm defense interests and reinforce international legal principles, but would irreparably harm bilateral relations. Accordingly, American officials avoided any discussion of the sector principle during the early postwar negotiations that laid the foundation for CanadianAmerican defence cooperation in the Arctic, given the incompatibility of the two countries’ positions on it.75 The United States never offered to publicly recognize Canada’s claims, given that this would have required articulating a legal basis for this acquiescence. Behind closed doors, however, the United States accepted Canadian guidelines which had been devised to confirm Canada’s sovereignty over the Arctic islands north of its mainland. In practical terms, the United States was willing to avoid legal confrontation and to reinforce the excellent relations it enjoyed with its neighbor and closest ally. Although the United States officially adhered to the Hughes Doctrine and avoided a declaratory stance that would undermine it, they applied it discriminately. While the State Department continued to criticize “token settlements” in Antarctica,76 it chose not to level similar criticisms against Canada when it came to the High Arctic islands. 72 73 74 75 76

“Problems of Canadian-United States Cooperation in the Arctic,” supra note 66. Id. “Report on the Arctic,” supra note 59. Joint Defence Discussions, 21 November 1946, NARA, RG 59, Entry 1177, PJBD Subject Files, 1940–59, Box 2, File: Basic Papers. The United States defined “constructive occupation” as “a combination of exploration, repeated visits, and maintenance of semi-permanent stations, but rejects as inapplicable to polar regions the standard concept of occupation.” While describing attempts at occupation in the Antarctic by various claimant States, the department argued, “there is doubt

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As the United States and Canada further entrenched their Arctic defense cooperation over the next decade, the United States never seriously considered challenging Canada’s sovereignty.77 Its aversion to the sector principle did not prove a significant constraint, as long as both sides assiduously avoided explicit discussions of the legal grounds upon which Canada claimed sovereignty. A 1951 State Department statement on the polar regions simply explained that “we have not been inclined to challenge Canadian claims to jurisdiction over those areas in which the Canadian government is exercising control.”78 This respectful approach, which avoided unnecessary legal entanglements, ensured that practical relationships between the two countries remained strong—even when continental defense projects generated jitters about Arctic sovereignty. During diplomatic negotiations leading up to the 1955 Distant Early Warning (DEW) Line Agreement,79 for example, the United States quietly acceded to Canadians demands without offering a public recognition of the legal basis for Canada’s claims. The list of conditions in the bilateral treaty “read like a litany of Canadian sovereignty sensitivities and desire for control,” historian Alexander Herd notes.80 By avoiding a pitched battle over legal principles, however, both sides got what they needed. The United States secured access to the Arctic to build a radar network that served their core strategic interests. Canadian strategist R.J. Sutherland explained that his country “secured what the United States had up to that time assiduously endeavoured to avoid, namely, an explicit recognition of Canadian [terrestrial]

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as to whether any of these stations could be regarded as fulfilling the conditions of occupation in the accepted sense. No occupant plans to spend his life there and no families have been established or are likely to be established in the Antarctic. Furthermore, it is questionable whether the operation of a station would give title to more than the limited area visited regularly by hunting parties from the station.” Map Intelligence Division, Office of Intelligence Collection and Dissemination, State Department, “Basis for Possible U.S. Claims in Antarctica,” 12 September 1947, NARA, RG 59, CDF 1945–1949, Box 4074, File 800.014, Antarctic. The key source on this period remains Joseph Jockel, No Boundaries Upstairs: Canada, the United States, and the Origins of North American Air Defence, 1945–1958 (Vancouver, UBC Press, 1987). Department of State, “Policy Statement: Polar Regions,” 1 July 1951, NARA, RG 59, CDF 1950–54, Box 3066, File 702.022 (2). Exchange of Notes between Canada and the United States Governing the Establishment of a Distant Early Warning System in Canadian Territory, 5 May 1955, Canada T.S. 1955, No. 8. Alexander W.G. Herd, “As Practicable: Canada-United States Continental Air Defense Cooperation 1953–1954” (M.A. thesis, Kansas State University, 2005), 86.

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claims to the exercise of sovereignty in the Far North.”81 The American dog was out of the manger when it came to Canada’s Arctic Archipelago—but without legal fanfare or prejudice to its interests in other parts of the world.

The Sector Principle and Canada-U.S. Arctic Relations

In their book Acts of Occupation, historians Janice Cavell and Jeff Noakes observe: Whatever the merits or demerits of the sector principle in terms of international law, it expressed an important truth about practical politics in the early twentieth century: that no northern nation would remain idle while its sector was invaded by another state intent on establishing a territorial claim. The corollary of this fact was that no power—not even one of the great powers—was willing to take the risk of conflict involved in claiming islands outside of its own sector.82 Thus, accounts emphasizing Canadian fears about a U.S. invasion and takeover of the islands within Canada’s self-declared Arctic sector fit within a strand of historical writing that pits the North American neighbors as erstwhile Arctic adversaries since the Alaska boundary dispute.83 But the United States’ willingness to find practical ways to collaborate with its northern/eastern neighbor, even when it disagrees about international legal principles as they pertain to Canada’s Arctic, suggests that a narrative of inherent bilateral friction is both distorting and limiting. This contribution hopefully helps to better understand how and why the United States held the views that they did, and why they selectively exercised the Hughes Doctrine, thus supplementing Donat Pharand’s analysis of Canada’s application of the sector theory. Taken together, the interwar and early postwar negotiations between Canada and the United States reveal a 81 82 83

R.J. Sutherland, “The Strategic Significance of the Canadian Arctic,” in Macdonald, supra note 4, 271. Cavell and Noakes, supra note 12, 259. See, for example, Grant, supra note 43; Adam Lajeunesse, “Lock, Stock, and Icebergs? Defining Canadian Sovereignty from Mackenzie King to Stephen Harper,” CMSS Occa­ sional Paper No. 1 (Calgary: Centre for Military and Strategic Studies, 2007), 6–7; and Adam Lajeunesse, “The True North As Long As It’s Free: The Canadian Policy Deficit 1945–1985” (M.A. thesis, University of Calgary, 2007), 42, 59–60.

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careful dance by both countries to avoid prejudicing their respective international legal positions. Although the United States remained committed to the Hughes Doctrine, archival sources reveal persistent uncertainty regarding its legal threshold for “effective occupation” and whether Canada’s activities satisfied international legal requirements, particularly after the 1933 Eastern Greenland Case. The majority of scholars tend to highlight the consistency in the U.S. legal position while pointing out the inconsistencies in Canada’s, and yet, such an assessment downplays the uncertainty in American officials’ own appraisals and the selective manner in which they asserted their perceived legal rights. In this case, the United States adopted a flexible approach that allowed it to defend its legal position (relevant to other circumpolar or upsetting global contexts) without undermining Canadian sovereignty or upsetting bilateral relations.84 84

This conclusion fits with more positive assessments of bilateral Arctic relations, such as Elliot-Meisel, supra note 38; Bercuson, supra note 43, 153–170; and Ken Coates, P. Whitney Lackenbauer, Bill Morrison and Greg Poelzer, Arctic Front: Defending Canada in the Far North (Toronto: Thomas Allen & Son Ltd., 2008).

chapter 13

Canada-Russia Relations in the Arctic Conflictual Rhetoric, Cooperative Realities*

Jonathan R. Edge and David L. VanderZwaag** Introduction [If] you take the position of [the] five major Arctic States, you will see that Russia and Canada have fewer problems between them than any other country.1 georgiy mamedov, Russian Ambassador to Canada, 2009

The media often present a grim portrait of cooperation in the Arctic. Major news outlets have been quick to capitalize on antagonistic political rhetoric in an attempt to fuel public perception of an ongoing conflict in the region. Headlines have characterized emerging events as being part of a race or battle for regional supremacy – one with high stakes, resulting in distinct winners and losers.2 This portrayal is inaccurate and misleading. While the Arctic has grown in importance over the past decade, both as a topic for political commentary and portfolio for policy development, with the exception of the early signs of climate change, little in the region itself has * This paper is based upon information provided by the Circumpolar Affairs Directorate, Aboriginal Affairs and Northern Development Canada, up to and including the “CanadaRussia Arctic Cooperation Annual Report April 1, 2011 – March 31, 2012,” (2012). ** Jonathan Edge is a litigator with Goodmans LLP, Toronto, Canada, and former Editorin-Chief of the Dalhousie Journal of Legal Studies. David VanderZwaag holds the Canada Research Chair in Ocean Law and Governance, Marine & Environmental Law Institute, Schulich School of Law, Dalhousie University, Halifax, Canada. The authors would like to acknowledge the research support of the Donner Canadian Foundation under the project, Comparing Canadian and Russian Approaches/Challenges in Arctic Ocean Governance, and of the Social Sciences and Humanities Research Council of Canada (SSHRC) pursuant to the project, Tracking and Envisioning the Future of Arctic Ocean Governance. 1 “Russia not bullying Canada over Arctic, its ambassador says,” CBC News, 30 March 2009, on the CBC website at http://www.cbc.ca. 2 For example: “Battle for the Arctic heats up,” CBC News, 20 August 2010, CBC website, supra note 1; Christian Lowe, “Russia says won’t stand still in race for Arctic [sic],” Reuters, 26 March 2009; and Guy Faulconbridge, “Russian navy boss warns of China’s race for Arctic,” Reuters, 4 October 2010, on the Reuters website at http://www.reuters.com.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004284593_014

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changed. The vast majority of the land terrain within the Arctic Circle remains remote and undeveloped. The Arctic Ocean, for the time being, is largely frozen over and inaccessible. Indigenous groups that have survived in the harsh Arctic environment for hundreds of years and have depended on its vulnerable ecosystem for sustenance remain the largest demographic residing in the region. Most of these groups continue to live under socio-economic conditions far inferior to those enjoyed by the larger populations to the south.3 Life in the region, for the most part, continues as it always has. However, a changing Arctic is becoming a defining image for the region.4 Decreasing and thinning sea ice is not only altering environmental and social conditions but is projected to lead to greater shipping5 and access to vast natural resources.6 Globalization is a growing regional reality with more and more States interested in the region, likely fueled by the potential resource wealth, and northern economies such as Greenland extending their welcome to foreign investments.7 Potential conflict between Canada and Russia over the outer limits of their continental shelves beyond 200 nautical miles (nm) and to which State the seabed of the North Pole may belong has received particular media attention. In August 2007, the Russian Arktika mission, led by Artur Chilingarov, successfully navigated the Arctic Ocean to the North Pole. Through the use of two MIR submersibles, the Russian Federation flag was planted in the seabed, which drew criticism from Arctic neighbors.8 Since this mission, the image of a Russian flag on the Arctic Ocean seabed has come to symbolize the complex 3 Niels Einarsson, et al., eds., Arctic Human Development Report 2004 (Akureyri: Stafansson Arctic Institute, 2004), Chapter 4. 4 See: Canada, House of Commons, Standing Committee on Foreign Affairs and International Development, “Canada and the Arctic Council: An Agenda for Regional Leadership,” May 2013, 68. Also see: P. Whitney Lackenbauer, “From Polar Race to Polar Saga: An Integrated Strategy for Canada and the Circumpolar World,” Foreign Policy for Canada’s Tomorrow No. 3 (Toronto: Canadian International Council, 2009). 5 The Northern Sea Route, adjacent to the Russian Federation, is already reporting increasing vessel traffic, expanding from four transits in 2010 to 46 in 2012. “Arctic Voyages Rise Tenfold in Two Years,” Ship & Bunker News, 29 November 2012, at http://shipandbunker.com/news/ world/438073-arctic-voyages-rise-tenfold-in-two-years. 6 See: J.P. Clement, J.L. Bengtson and B.P. Kelley, Managing for the Future in a Rapidly Changing Arctic: A Report to the President (Washington, DC: Interagency Working Group in Coordination of Domestic Energy Development and Permitting in Alaska, 2013). 7 See: “Premier: Greenland’s future lies underground,” Copenhagen Post, 18 April 2013, at http://cphpost.dk/print/29634. 8 “Russia plants flag under N Pole,” BBC News, 2 August 2007, on the BBC website at http:// www.bbc.co.uk.

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array of issues to be addressed in the region and has served as a lightning rod for political commentary and controversy,9 although the flag-placing act had no bearing in international law.10 When Canada in December 2013 made a partial submission to the Commission on the Limits of the Continental Shelf11 and gave notice of a possible claim to the North Pole,12 a media frenzy again erupted regarding strained Canada-Russia relations.13 However, an overall atmosphere of international cooperation surrounds the Arctic. Sovereignty over land territory in the Arctic is settled, with the exception of tiny Hans Island contested by Canada and Denmark/Greenland.14 Sovereign rights in the waters and seabed of the Arctic Ocean are assigned within the legal framework of the 1982 United Nations Convention on the Law of the Sea (LOS Convention).15 This framework confers a 12 nm territorial sea and a maximum 200 nm exclusive economic zone (EEZ), but also provides a mechanism for defining the outer limit of a State’s continental shelf beyond 200 nm through the submission of scientific data to the Commission on the Limits of the Continental Shelf (CLCS).16 This legal structure is supported by the Arctic States enjoying coastline along the Arctic Ocean.17 Canada, the Russian Federation, and Denmark are all in the process of defining the outer 9 10

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14 15 16 17

“Russia ahead in Arctic ‘gold rush’,” BBC News, 1 August 2007, on the BBC website, supra note 8; “Battle for the Arctic heats up,” supra note 2. Christopher C. Joyner, “The Legal Regime for the Arctic Ocean,” Journal of Transnational Law & Policy 18 (2009): 195–245 at 198–199; Deborah Zabarenko, “UN must decide Russia Arctic claim – Russian experts,” Reuters, 9 August 2007, on the Reuters website, supra note 2; “Russia says Arctic shelf dispute must be settled by UN,” RIA Novosti, 3 June 2009, on the RIA Novosti website at http://en.rian.ru; and Lackenbauer, supra note 4, at 19, 36. Canada, “Executive Summary – Partial Submission of Canada,” 9 December 2013, on the website of the Commission on the Limits of the Continental Shelf at http://www.un.org/ depts/los/clcs_new/clcs_home.htm. See: “Canada eyes bid for North Pole,” The Chronicle Herald, 10 December 2013, A10. See also: Canada, “Preliminary Information Concerning the Outer Limits of the Continental Shelf of Canada in the Arctic Ocean,” 6 December 2013, on the Commission website, supra note 11. Bruce Cheadle, “Putin rattles sabres over Arctic,” The Chronicle Herald, 11 December 2013, A12; Fred Weir, “Russia, Canada stake new claims in the Arctic, setting off tiff over jurisdiction,” Christian Science Monitor, 11 December 2013, at http://www.alaskadispatch .com/article/20131211/russia-canada-stake-new-claims-arctic-setting-tiff-over-jurisdiction. See Michael Byers, International Law and the Arctic (Cambridge: Cambridge University Press, 2013), 10–16. U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397. See the Commission website, supra note 11. Ilulissat Declaration, 28 May 2008, reprinted in 48 I.L.M. (2009): 362.

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limit of their extended continental shelves with submissions to the CLCS.18 Norway has already completed the process in the Arctic.19 While the United States has yet to accede to the LOS Convention, the United States is supportive of its process and is expected to accede to the Convention in the future.20 Even if Canada and the Russian Federation were to eventually have overlapping claims to their extended continental shelves, Article 83 of the LOS Convention calls for delimitations of the continental shelf to be effected by agreement on the basis of international law. Substantial cooperation at the regional level has occurred. The five Arctic Ocean littoral States, as well as Sweden, Iceland and Finland, are members of the Arctic Council, which includes six indigenous groups as Permanent Participants and twelve Observer States.21 The Arctic Council is a forum for political discussions and scientific assessments and has assisted, through task forces, in the negotiation of regional agreements on Arctic search and rescue22 and marine oil pollution preparedness and response.23 Despite commitments by Canada and the Russian Federation for strong bilateral and multilateral relations on issues of Arctic importance,24 casual observation of major news outlets leads to drastically different conclusions on the state of Arctic cooperation. Media-reported flare-ups in the wake of the 2007 Arktika mission and the 2009 announcement of Kremlin plans to create a special Arctic military force25 resulted in strong statements of defiance and 18

See generally: Kathryn Isted, “Sovereignty in the Arctic: An Analysis of Territorial Disputes & Environmental Policy Considerations,” Journal of Transnational Law & Policy 18 (2009): 343. 19 U.N. Division for Oceans Affairs and the Law of the Sea (DOALOS), “Submissions, through the Secretary-General of the United Nations, to the Commission on the Limits of the Continental Shelf, pursuant to article 76, paragraph 8, of the United Nations Convention on the Law of the Sea of 10 December 1982,” 20 November 2012, on the DOALOS website at http://www.un.org/depts/los/index.htm. 20 Michael Byers, Who Owns the Arctic?: Understanding Sovereignty Disputes in the North (Vancouver: Douglas & McIntyre, 2009), 90, 95. 21 Arctic Council, “About Us,” 18 December 2013, on the Arctic Council website at http:// www.arctic-council.org; see: Timo Koivurova and David VanderZwaag, “The Arctic Council at 10 Years: Retrospect and Prospects,” UBC Law Review 40 (2007): 121. 22 Agreement on Cooperation in Aeronautical and Marine Search and Rescue in the Arctic, 21 April 2011, reprinted in 50 I.L.M. (2011): 1119. 23 Agreement on Cooperation on Marine Pollution Preparedness and Response in the Arctic, 15 May 2013, available on the Arctic Council website, supra note 21. 24 Byers, supra note 20, at 129. 25 Tony Halpin, “Russia warns of war within a decade over Arctic oil and gas riches,” Times Online, 14 May 2009, on the Times website at http://www.timesonline.co.uk;

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claims of sovereignty from top Russian and Canadian officials that strike a decidedly hostile tone.26 While such rhetoric may have fuelled nationalist sentiment amongst the populations of the countries to the benefit of their respective governments, it has obscured the actual state of Arctic relations and has led to confusion within academic and policy-making circles.27 In the words of then-Prime Minister Putin, “…most of the scare stories about the Arctic are groundless.”28 The truth is that Canada and the Russian Federation, the successor State to the Union of Soviet Socialist Republics (USSR), have enjoyed a meaningful partnership in the Arctic for decades. This contribution will examine both the formal and informal mechanisms of cooperation between these two nations in an attempt to dispel inaccurate public perceptions of hostility in the Arctic region. It will first explore the formation and development of formal bilateral relations during the Soviet and post-Soviet eras and provide an in-depth overview of two treaties of particular importance to Arctic relations. The contribution will then examine the specific initiatives and programs that have arisen out of these formal agreements focusing on the historical development of circumpolar engagement between Canada and Russia, as well as the key government actors responsible for Arctic cooperation. Several Arctic-specific agreements and programs will then be described and differentiated. Also to be explored are other forms of bilateral engagement in the Arctic, including high-level policy statements from top Canadian and Russian leaders. Lastly, an analysis of the contemporary state of bilateral relations will be provided and insights offered into how cooperation might be further strengthened in the future.

Formal Treaties of Arctic Significance

Formal treaties are the foundation of any stable and successful relationship between States. The ongoing partnership between Canada and the Russian “Russia plans to create Arctic military force,” Associated Press, 27 March 2009, on the MSNBC website at http://www.msnbc.msn.com. 26 Byers, supra note 20, at 2; Lackenbauer, supra note 4, at 19. 27 Randy Boswell, “Canada, Russia play political game in Arctic: experts,” National Post, 16 August 2009, on the National Post website at http://www.nationalpost.com; Byers, supra note 20, at 4. 28 “There will be no ‘battle for the Arctic’- Putin,” Ria Novosti, 23 September 2010, on the Ria Novosti website, supra note 10.

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Federation in the Arctic and in other areas of mutual interest is based on several agreements signed during the late Soviet era and updated by the Russian leadership following the collapse of the Soviet State. Soviet Period and Transition to New Bilateral Cooperation Canada and the USSR established direct diplomatic relations in June 1942 in the midst of World War II.29 June 2012 marked the 70th anniversary of diplomatic relations between two countries, a milestone celebrated with the release of warm statements of congratulation by Canadian Foreign Affairs Minister John Baird and Russian Minister of Foreign Affairs Sergey Lavrov.30 However, with the exception of the renewal and modification of trade agreements, little was accomplished in terms of formal bilateral cooperation between the two States until the early 1970s when treaties were signed per­ taining to mutual cooperation in fisheries31 and the industrial application of science and technology.32 While treaties facilitating long-term economic, industrial, scientific and technological collaboration as well as agricultural cooperation were signed in 1976 and 1981 respectively,33 the modern framework of bilateral cooperation between Canada and the successor State of the USSR, the Russian Federation, has its origins in a series of treaties signed in the 29 30

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Agreement on the Establishment of Direct Diplomatic Relations between Canada and the Union of Soviet Socialist Republics, London, 12 June 1942, Canada T.S. 1942/12. “Baird Marks 70 Years of Relations with Russia,” 12 June 2012, on the website of the Department of Foreign Affairs and International Trade at http://www.international.gc.ca; “Congratulations by Mr. Sergey Lavrov, Minister of Foreign Affairs of Russia, to Mr. John Baird, Minister of Foreign Affairs of Canada on the 70th Anniversary of Canada-Russia Diplomatic Relations,” Embassy of the Russian Federation in Canada, 12 June 2012, on the website of the Embassy of the Russian Federation in Canada at http://www.rusembassy.ca. Agreement between Canada and the Union of Soviet Socialist Republics on Provisional Rules of Navigation and Fisheries Safety in the Northeastern Pacific Ocean off the Coast of Canada, Moscow, 22 January 1971, Canada T.S. 1971/8; Agreement between Canada and the Union of Soviet Socialist Republics on Co-operation in Fisheries in the Northeastern Pacific Ocean off the Coast of Canada, Moscow, 19 February 1971, Canada T.S. 1971/9. Agreement between Canada and the Union of Soviet Socialist Republics on Cooperation in the Industrial Application of Science and Technology, Moscow, 27 January 1971, Canada T.S. 1971/3. Long Term Agreement between Canada and the Union of Soviet Socialist Republics to Facilitate Economic, Industrial, Scientific and Technical Co-Operation, Ottawa, 14 July 1976, CTS 1976/9 and Agreement between Canada and the Union of Soviet Socialist Republics on Agricultural Cooperation, Moscow, 26 September 1981, Canada T.S. 1981/23.

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mid to late 1980s by Prime Minister Brian Mulroney and the newly-elected Soviet leader, General Secretary Mikhail Gorbachev. Between 1988 and 1989, Canada and the USSR signed agreements pertaining to, amongst other things, the peaceful use of nuclear energy,34 direct cooperation between the provinces of Canada and the republics of the Soviet Union35 and, most importantly, cooperation both in general environmental matters36 and in matters related to the Arctic and northern regions of each country through the 1989 Agreement on Cooperation in the Arctic and the North.37 In addition to this 1989 Agreement, Canada and the USSR signed a Memorandum of Understanding on Cooperation Relating to the Prevention and Control of Arctic Marine Pollution.38 The collapse of the USSR in December 1991 led to a series of new bilateral agreements – this time between Canada and the Russian Federation under President Boris Yeltsin. On 1 February 1992, President Yeltsin and Prime Minister Mulroney signed the Declaration of Friendship and Cooperation,39 which would lead to numerous additional treaties being signed before the end of the year. These included the Treaty on Concord and Cooperation,40 the Agreement on Trade and Commerce41 and, most importantly, the Agreement on Cooperation in the Arctic and the North,42 all signed on 19 June 1992 in Ottawa. 34 35

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40 41 42

Agreement between Canada and the Union of Soviet Socialist Republics for Cooperation in the Peaceful Uses of Nuclear Energy, Moscow, 20 November 1989, Canada T.S. 1989/27. Agreement between Canada and the Union of Soviet Socialist Republics on Cooperation between Canadian Provinces and the Republics of the Union of Soviet Socialist Republics, Moscow, 20 November 1989, Canada T.S. 1989/28. Agreement between Canada and the Union of Soviet Socialist Republics concerning Environmental Cooperation, Moscow, 20 November 1989, Canada T.S. 1989/24. Agreement between Canada and the Union of Soviet Socialist Republics on Cooperation in the Arctic and the North, Moscow, 20 November 1989, Canada T.S. 1989/21. The MOU is referenced in John B. Hannigan, “Canada’s Northern Cooperation with the Soviet Union and Russia: A Natural Partnership?,” International Journal of Canadian Studies 9 (1994): 54. Declaration of Friendship and Cooperation between the Russian Federation and Canada, Ottawa, 1 February 1992, on the website of the Embassy of the Russian Federation in Canada at http://www.rusembassy.ca. The Declaration is referenced in id., at 64. Treaty on Concord and Cooperation between Canada and the Russian Federation, Ottawa, 19 June 1992, Canada T.S. 1993/23. Agreement between Canada and the Russian Federation on Trade and Commerce, Ottawa, 19 June 1992, Canada T.S. 1992/21. Agreement between Canada and the Russian Federation on Cooperation in the Arctic and the North, Ottawa, 19 June 1992, Canada T.S. 1992/18.

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While the last agreement remains the most influential on bilateral cooperation, numerous other agreements of relevance have since been signed. These include: the renewed and updated Agreement concerning Environmental Cooperation43 and the Agreement on Economic Cooperation, both signed in Moscow on 8 May 1993;44 the Agreement on the Principles and Basis for Cooperation between the Provinces and Territories of Canada and the Subjects of the Russian Federation, signed in December 2000;45 and the June 2004 Agreement concerning Cooperation on the Destruction of Chemical Weapons, the Dismantlement of Decommissioned Nuclear Submarines, and the Physical Protection, Control and Accountancy of Nuclear and Radioactive Material.46 The 1992 Agreement on Cooperation in the Arctic and the North The foundation of current joint Russian and Canadian engagement on issues of Arctic importance is the 1992 Agreement on Cooperation in the Arctic and the North.47 The preamble to the 1992 Agreement states its purpose and context. It lays out the countries’ objectives for increased cooperation in the Arctic, which include the protection of the interests of its population, the rational use of its resources and fostering prosperity in the region. In achieving these broad goals, articles 2 and 3 identify both the forms of cooperation and specific parties that the signatories envision being part of an enhanced bilateral relationship concerning Arctic matters. Forms of cooperation include delegation visits, exchanges of information, joint research, expert symposia and conferences, trade missions and joint publications. The parties identi­ fied  for increased participation within the new framework of cooperation and coordination the roles of non-governmental organizations, scientific and academic bodies, business associations and firms, native groups and 43 44 45

46

47

Agreement between Canada and the Russian Federation concerning Environmental Cooperation, Moscow, 8 May 1993, Canada T.S. 1993/7. Agreement between Canada and the Russian Federation on Economic Cooperation, Moscow, 8 May 1993, Canada T.S. 1994/38. Agreement between Canada and the Russian Federation on the Principles and Basis for Cooperation between the Provinces and Territories of Canada and the Subjects of the Russian Federation, Ottawa, 18 December 2000, Canada T.S. 2000/25. Agreement between Canada and the Russian Federation concerning Cooperation on the Destruction of Chemical Weapons, the Dismantlement of Decommissioned Nuclear Submarines, and the Physical Protection, Control and Accountancy of Nuclear and Other Radioactive Material, Sea Island, 9 June 2004, Canada T.S. E104999. 1992 Arctic Cooperation Agreement, supra note 42; and see: Canada, Department of Indian Affairs and Northern Development, Circumpolar Liaison Directorate (CLD), “Canada-Russia Arctic Cooperation Annual Report April 1, 2007 – March 31, 2008.”

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organizations, as well as governments at the national, provincial/republican, regional and local levels. Article 4 is the backbone of the Agreement and lays the foundation for the creation and implementation of initiatives by bestowing responsibility on departments within the governments of the two countries. First, it identifies the Canadian Department of Indian Affairs and Northern Development (DIAND)48 and the Russian Federation State Committee for Socio-Economic Development of the North as the organizations responsible for supervising the implementation of the Agreement. Second, it authorizes the establishment of a Canada-Russia Mixed Commission on Cooperation in the Arctic and the North. Meeting at least once every two years, and co-chaired by the Minister/ Chair of the aforementioned government departments, the Commission is tasked with promoting the development of programs of cooperation within numerous priority areas indicated in the Annex of the Agreement, reviewing and reporting on progress in implementation, and providing general policy direction and management for the Agreement. The Global Partnership The Global Partnership Against the Spread of Weapons and Materials of Mass Destruction was launched at the G8 Summit in Kananaskis, Alberta, Canada on 27 June 2002.49 The primary initiative of the Global Partnership has been the Multilateral Nuclear Environmental Programme in the Russian Federation Framework Agreement (MNEPR), signed 21 May 2003 after four years of negotiations.50 Parties to the Agreement include most of the major European members of the Organisation for Economic Cooperation and Development (OECD), such as the United Kingdom, France and Germany, as well as the United States and the Russian Federation.51 The focus of the Agreement is the provision of “legal solutions for addressing the major environmental problems stemming

48

49

50

51

This department is also referred to by its applied title under the Federal Identity Program as Aboriginal Affairs and Northern Development Canada. However, as DIAND remains the legal name of the department for the purposes of treaties, it will be the title used. Statement by G8 Leaders, “The G8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction,” 27 June 2002, on the website of the G8 Research Group at the University of Toronto at http://www.g8.utoronto.ca. Organisation for Economic Cooperation and Development, Nuclear Energy Agency, Framework Agreement and Protocol on a Multilateral Nuclear Environmental Programme in the Russian Federation (MNEPR), 21 May 2003, on the website of the Nuclear Energy Agency at http://www.oecd-nea.org. Id.

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from the Soviet nuclear submarine fleet legacy.”52 The Protocol annexed to the 2002 Agreement commits the Russian Federation to not bring claims against any of the parties or their agents for damages arising out of “activities undertaken pursuant” to the Agreement.53 In the event of a third party claim, the parties will be indemnified by the Russian Federation. Despite being an active member of the Global Partnership Program, Canada is not a party to the 2002 Agreement. Instead, Canada and Russia in 2004 signed a bilateral treaty that details the manner by which Canada will fund cooperative projects, how cross-border initiatives will be managed and the responsibilities both parties bear in the implementation and ultimate outcome of the partnership program.54 On 27 March 2012, Prime Minister Stephen Harper announced the renewal of Canada’s commitment to the Global Partnership program at the Nuclear Security Summit in Seoul, South Korea.55 A budget of CAN$367 million has been allocated to promote nuclear and radiological security, biological security, scientist engagement and support for the implementation of United Nations Security Council measures to curb the proliferation of nuclear, chemical and biological weapons.56

Historical and Contemporary Relations in the Arctic Region

Canada-Russia cooperation in the Arctic is not based solely on bilateral treaties. While such agreements form the foundation on which bilateral relations are conducted, the treaties signed between 1988 and 1989 by Canada and the USSR were preceded by years of meaningful cooperation on Arctic issues.57 Additionally, the Canada-Russia treaties of the early 1990s provide

52

Serge Gas, Organization for Economic Co-operation and Development, Nuclear Energy Agency, email message to authors, 25 August 2010. 53 MNEPR, supra note 50, at s. 7(1). 54 2004 Cooperation Agreement on Nuclear Materials, supra note 46. 55 “PM announces renewal of Canada’s Global Partnership Program,” 27 March 2012, on the Prime Minister of Canada website at http://www.pm.gc.ca. 56 Canada, Department of Foreign Affairs and International Trade, “Global Partnership Program,” 16 April 2013, on the Foreign Affairs website, supra note 30. 57 See: M.O. Filippenkova, “Bilateral Treaties of the Russian Federation on Arctic Environment Protection” in Working Paper: International Cooperation in Environmental Protection, Preservation, and Rational Management of Biological Resources in the Arctic Ocean, ed. I.S. Ivanov (Moscow: Russian International Affairs Council, 2013), 69.

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mechanisms whereby specific initiatives may be launched through subsequent agreements or memoranda of understanding. Canadian Circumpolar Engagement with the Russian Federation Amongst Canada’s Arctic neighbors, Canada has developed its “closest and most extensive relationship”58 with the Russian Federation due to their geographic proximity across the North Pole, their similar climates and large proportion of landmass within the Arctic region, as well as their shared concerns relating to “the well-being of Aboriginal peoples, protection of the environment and exploitation of resources.”59 Since the 1960s, DIAND has been the federal ministry in Canada with the responsibility to enhance circumpolar relations. Responsibilities of the department have included, “negotiating protocols, memoranda of understanding and formal agreements, coordinating and implementing those arrangements, as well as organizing and participating in visits throughout the circumpolar North.”60 Due to several internal reorganizations within DIAND, including the merging and division of certain groups as well as changes to their titles, these responsibilities have been accorded to a variety of different entities within the ministry: the Northern Coordination and Research Centre; the Northern Science Research Group; the Circumpolar Affairs Section; the Northern Social Research Division; and the Circumpolar and Scientific Affairs Directorate. Since 1993, these functions have been exercised by the Circumpolar Affairs Directorate, formerly the Circumpolar Liaison Directorate.61 The foundations of contemporary Canada-Russia engagement in the Arctic were laid in 1965 and 1971 as a direct result of the visits of DIAND Ministers Arthur Laing and Jean Chrétien. Minister Laing established direct contact between DIAND and the USSR State Committee on Construction in order to promote information exchange between permafrost scientists and construction specialists.62 Minister Chrétien met with a variety of Soviet officials to discuss social and economic development in the Russian Arctic and promote the establishment of “a joint programme of scientific, technical, economic and

58

59 60 61 62

Walter Slipchenko and John Hannigan, Canada’s Arctic Cooperation with the Soviet Union and Russia (1965–2000) (Ottawa: Department of Indian Affairs and Northern Development, 2010), 1. Id. Id. Id., Attachment 2, at 193. Id., at 5.

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environmental cooperation as well as exchanges of Aboriginal peoples.”63 His visit laid the framework for future association and cooperation between the two countries on matters of Arctic importance and served as an impetus to several activities and agreements, most notably the Arctic Science Exchange Programme.64 However, despite the success of these ministerial visits and the geographic, ecological and cultural similarities linking the Canadian and Soviet Arctic regions, “an active program of Arctic cooperation did not materialize until 1984.”65 Several factors have been blamed for the delay. First, a formal bilateral Arctic cooperation agreement was not prioritized and pushed by the two countries with Arctic cooperation limited by the “need to ‘stickhandle’… through several layers of bureaucracy.”66 Equally damaging, however, were Canada’s responses to the 1968 and 1979 Soviet invasions of Czechoslovakia and Afghanistan, and the reaction of officials with Canada’s National Research Council to the 1980 exile of human rights activist Andrei Sakharov.67 While these events stalled cooperation in the Arctic, some commentators believe that prior to 1984, “the shared interests necessary for cooperative efforts were not as common as many had assumed.”68 Whereas “the 1960s brought issues of human and civil rights and environmental protection to the fore”69 in the West, it was perceived that the USSR “remained largely unaffected by such social and political pressures.”70 Despite Canada-Soviet relations remaining strained in the early 1980s, progress on Arctic cooperation accelerated thereafter, which some scholars attribute to the appointment of key bureaucrats within the Soviet government sympathetic to Arctic issues, and to the Soviet Ministry of Foreign Affairs adopting more direct involvement in Arctic-based discussions.71 A shift in domestic policy concerning northern indigenous peoples is also identified as contributing to the increased impetus toward Canada-USSR cooperation.72 Regardless of the cause, this diplomatic momentum resulted in the reopening 63 Id., at 6. 64 Id., at Chapter 4, for details of the Arctic Science Exchange Programme. 65 Hannigan, supra note 38, at 54. 66 Id. 67 Id, at 55. 68 Id. 69 Id., at 58. 70 Id. 71 Id, at 60. 72 Id.

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of talks concerning Arctic cooperation and ultimately the launch of the abovenoted 1984 Arctic Science Exchange Programme. This program focused on “four major areas: geoscience and Arctic petroleum; northern and Arctic environment; northern construction; and ethnology and education.”73 As it combined “elements of pure science, technology, policy-related issues and culture,”74 it aligned with both the Canadian objective of promoting social issues within the region and the Soviet interest in northern technology. The success of this program led to an expansion of bilateral cooperation, through a broader thematic focus and the inclusion of new actors in collaborative activities. Activities aimed at promoting circumpolar cooperation were subsumed under the previously noted 1989 Canada-USSR Agreement on Cooperation in the Arctic and the North, which conferred upon DIAND the explicit authority and responsibility for managing Canada’s northern cooperation. With the subsequent dissolution of the USSR, the 1992 treaty with the Russian Federation designated DIAND and the State Committee for Socio-Economic Development of the North as the departments responsible for its implementation.75 Under this Agreement, three virtually identical memoranda of understanding concerning Cooperation on Aboriginal and Northern Development were signed in 1997, 2000 and 2007 due largely to the efforts of the Circumpolar Affairs Directorate.76 The Canadian Circumpolar Affairs Directorate The Circumpolar Affairs Directorate (CAD), housed within the Northern Affairs Organization (NAO), is the group tasked with managing Canada’s relationship with the Russian Federation on those matters of Arctic importance under the jurisdiction of DIAND. This includes cooperative activities arising from the 1992 Cooperation Agreement. The broad mission of the CAD is to 73 74 75 76

Id, at 61. Id. 1992 Arctic Cooperation Agreement, supra note 42, article 4(1). See: Slipchenko and Hannigan, supra note 58, at 129; “Memorandum of Understanding Between the Department of Indian Affairs and Northern Development (Canada) and the State Committee on Northern Affairs of the Russian Federation Concerning Cooperation on Aboriginal and Northern Development,” 29 February 2000 and “Memorandum of Understanding Between the Department of Indian Affairs and Northern Development (Canada) and the Ministry of Regional Development of the Russian Federation Concerning Cooperation on Aboriginal and Northern Development,” 29 November 2007, both on the website of the Department of Indian Affairs and Northern Development at http://www.aadnc-aandc.gc.ca.

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“maintain strong bilateral ties with Canada’s circumpolar neighbours, to build partnerships and enable northerners to benefit from socio-economic opportunities.”77 While it fosters cooperation between Canada and several other Arctic countries, its work with the Russian Federation is of fundamental importance to its overall program. The stated objective of the Russian dimension of the CAD program is [T]o positively influence developments in the Russian North, in particular vis-à-vis Russia’s northern Aboriginal peoples, by working with Russian federal and regional governments, Aboriginal associations and academic institutions to build capacity for managing northern development and issues pertaining to Aboriginal peoples by sharing Canadian experiences in these areas.78 Recently renamed from the Circumpolar Liaison Directorate, CAD assumed its current mandate in 1993,79 but has existed in one form or another within DIAND since the mid-1960s. Since the signing of the 1992 Cooperation Agreement, CAD has engaged in a variety of activities, however, the extent of Canada-Russia cooperation has varied in the intervening period as the Russian Federation has undergone large-scale changes to its governing structure, including both rapid decentralization and gradual recentralization. The 1992 Cooperation Agreement identified the State Committee for SocioEconomic Development of the North as the Russian government department responsible for the implementation of the Agreement, although President Yeltsin created a new State Committee on Northern Affairs (Goskomsever) later in 1992 that took on Russia’s responsibilities under the 1992 Agreement. In 1997 and 2000 DIAND, through the efforts of CAD, signed two memorandum of understanding with Goskomsever.80 The instability of Goskomsever, however, proved problematic as the committee was disbanded and re-established six times in the seven years of its existence 1992–2000.81 As such, the 1992 77 CLD Annual Report 2008, supra note 47. 78 Department of Indian Affairs and Northern Development, Circumpolar Liaison Directorate, “Summary Report of the Circumpolar Liaison Directorate Activities Under Canada-Russia Arctic Cooperation, April 1, 2005 – March 31, 2007,” 1. 79 See: Slipchenko and Hannigan, supra note 58, at Attachments 2 & 3, for a complete history of CAD and its predecessors. 80 See the next section. 81 Elana Wilson Rowe, “Policy Aims and Political Realities in the Russia North,” in Russia and the North, ed. Elana Wilson Rowe (Ottawa: University of Ottawa Press, 2009), 3.

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Agreements did not produce the full extent of the desired results. While “the amount of bilateral activity under [the 1992 Agreement] began to wane and virtually disappeared by the mid-1990s,”82 bilateral cooperation itself never disappeared completely, occurring instead in a fragmented fashion through northern governments and non-government actors in academia, the private sector and aboriginal groups. In 2000, newly elected President Putin assigned the Ministry of Economic Development and Trade a central role in coordinating northern policy, which was seen as indicating that it would be “handled via ‘regular’ channels not specific to the North.”83 The change occurred within the context of Putin’s recentralization of power and the creation of a strengthened federal executive, a bureaucratic reform that “disrupted established connections for cross-border cooperation”84 and “swallowed time and administrative resources that could have been usefully applied to other challenges.”85 The period 2005–2007, however, marked a point of renewal in CanadaRussia bilateral cooperation in the Arctic. While driven by several important factors, it could not have come about without the stabilization and growth of the Russian economy in the early years of the new century. The economic upturn permitted a fresh, heightened commitment to bilateral engagement on the Arctic and other pressing global issues.86 The following initiatives are largely the result of the renewal in bilateral relations. First, the Northern Partnership Development Program was launched in 2005 as a result of a strategic overhaul at the Canadian International Development Agency (CIDA), focusing on new priorities such as the Russian North. This, combined with the revival by the Canadian Department of Foreign Affairs and International Trade (DFAIT) of the Intergovernmental Economic Commission’s Arctic and North Working Group, spurred increased communication between Russian and Canadian officials and created an environment favourable to the creation of additional programs and bilateral linkages.87 Second, the Canadian federal government and a collaborative grouping of the three Canadian territorial governments highlighted the need for increased bilateral cooperation with Canada’s Arctic neighbors, specifically Russia, in 82 83 84 85 86 87

Slipchenko and Hannigan, supra note 58, at 176. Rowe, supra note 81, 3. Elana Wilson Rowe, “The Intersection of Northern and National Policies,” in Rowe, supra note 81, 206. Id. CLD Summary Report 2005–2007, supra note 78, at 1. Id.

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separate reports. “A Northern Vision: A Stronger North and a Better Canada,” released by the territorial governments in May 2007, stated that “the territories will continue to support increased efforts by Canada to strengthen bilateral relations with our Arctic neighbors to help ensure that our circumpolar interests remain a priority area for multilateral cooperation.”88 The Northern Dimension of Canada’s Foreign Policy, renewed in 2009, also made explicit reference to increased cooperation, pledging to “expand bilateral economic and business ties with northern Russia.”89 Lastly, CAD undertook consultations with the territorial governments and northern and aboriginal organizations during 2005–2007 and determined that there was an ongoing interest in cooperative efforts with Russia, but also a lack of capacity prohibiting northern governments and groups from doing so on their own.90 The Russian component of the CAD mandate of promoting collaboration between Canada and its Arctic neighbors is summarized in the various publications of the Canada-Russia Arctic Cooperation Annual Report.91 The 2007 Memorandum of Understanding In October 1997 and February 2000, DIAND and Goskomsever signed memoranda of understanding (MOU) concerning cooperation on aboriginal and northern development.92 These almost identical documents aimed to strengthen bilateral cooperation in a number of priority areas through the creation of a work plan and the identification of both the forms of cooperation envisioned and the parties to be involved. One of the areas highlighted for joint efforts was the northern environment and conservation. Despite plans for a joint committee to oversee such cooperation, several reorganizations of Goskomsever prevented the launch of any major initiatives with the result that achievements were limited.93 Canada-Russia bilateral cooperation was reinvigorated, however, with the signing of a new MOU on 29 November 2007.94 The parties to this new agreement were DIAND and the Ministry of Regional Development of the Russian 88 89 90 91 92 93 94

Government of the Northwest Territories, Office of the Premier, “A Northern Vision: A Stronger North and a Better Canada,” 26 May 2007, at http://www.anorthernvision.ca. “The Northern Dimension of Canada’s Foreign Policy,” 13 June 2008, on the Foreign Affairs website, supra note 30, at 16. CLD Summary Report 2005–2007, supra note 78, at 4. According to CAD, these publications were discontinued after the “Canada-Russia Arctic Cooperation Annual Report April 1, 2011 – March 31, 2012.” “Memorandum of Understanding,” 29 February 2000, supra note 76. CLD Summary Report 2005–2007, supra note 78, at 5. “Memorandum of Understanding,” 29 November 2007, supra note 76.

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Federation (MinRegion). The instrument is similar to the 1997 and 2000 MOUs but does contain subtle differences. One such distinction is the inclusion of several additional priority areas for bilateral cooperation in Section 1. The aim of the MOU is to improve cooperation in 1. 2. 3. 4. 5. 6. 7.

northern policy development; policy and legislation related to the situation of aboriginal peoples; socio-economic and ethnocultural development of aboriginal peoples; capacity building for aboriginal peoples; northern environment and conservation; capacity building through partnerships; promotion of northern business linkages and investment in the economy of the North; 8. preservation and development of traditional aboriginal economies, traditional way of life and unique cultures of aboriginal peoples; and, 9. scientific monitoring and research. Similar to the 1997 and 2000 MOUs, the 2007 version identifies visits of officials, discussion forums, cooperative projects and exchanges of information as the desired forms of cooperation and aims to include aboriginal groups, academic and scientific institutions, the private sector and government from all levels as participants. Overview and ongoing management of the MOU, is provided for through bi-annual meetings of delegations headed by the applicable minister of each signatory department. CAD considers the 2007 MOU as the primary guide in facilitating Canada-Russia Arctic cooperation and the principal mechanism through which to achieve concrete results.95 While DIAND is the signatory department, former Foreign Affairs Minister Lawrence Cannon touted the 2007 MOU in several speeches, highlighting it as an essential component of the international dimension of Canada’s Northern Strategy and a clear example of Canada’s desire to engage with its Arctic neighbors on socio-economic issues.96 The MOU is also explicitly mentioned in the Northern Dimension of Canada’s 95

96

Veronique Cotnoir, Circumpolar Liaison Directorate, Department of Indian Affairs and Northern Development, email message to authors, 25 November 2008; “Bilateral Relationships,” Circumpolar Affairs, on the Department of Indian Affairs and Northern Development website, supra note 76. “Notes for an Address by the Honourable Lawrence Cannon, Minister of Foreign Affairs, on Canada’s Arctic Foreign Policy,” 11 March 2009, on the Foreign Affairs website, supra note 30.

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Foreign Policy document.97 This reference demonstrates its importance to Canadian Arctic relations. The Siberian Federal District Program and Action Plan The Siberian Federal District (SFD) Program was launched in Ottawa in December 2001.98 It is co-funded in Canada by DIAND and DFAIT. One of seven federal districts within the Russian Federation, and comprising a population of approximately 19 million, the SFD boasts a land area of almost 5,000,000 square kilometers that are rich in mineral resources as well as oil and gas fields.99 Despite this economic potential, the region remains largely undeveloped. The aim of the SFD Program, managed by an Advisory Council that meets regularly to review and update its guiding Action Plan, is to “promote northern centred partnerships and to share Canadian best practices with Russia in areas of northern governance, economic development, and business and aboriginal issues.”100 The SFD Program accomplishments include a five-year exchange focused on federalism administered by the University of Toronto, several trade missions and exhibitions on northern construction that have resulted in numerous cooperative agreements, scientific dialogue regarding socioeconomic monitoring, research on northern labor markets conducted by Carleton University and training workshops on the marketing of aboriginal arts and crafts. In working on these and other initiatives, the SFD Program has successfully engaged the Russian Association of Indigenous Peoples of the North (RAIPON), an example being the inclusion of RAIPON at an international conference held to reinforce the significance of indigenous perspectives to the development of oil and gas fields in northern regions.101 Despite these successes, SFD Program progress has been limited in recent years. According to CAD, this is due to political developments within the 97 98

“The Northern Dimension of Canada’s Foreign Policy,” supra note 89, at 16. “Siberian Federal District Mission to Canada,” 10 January 2004, on Embassy of the Russian Federation in Canada website at http://www.rusembassy.ca. 99 Department of Indian Affairs and Northern Development, Circumpolar Liaison Directorate, “Canada-Russia Arctic Cooperation Annual Report April 1, 2010 – March 31, 2011,” at 13. 100 CLD Annual Report 2008, supra note 47, at 19. 101 Id., at 21; Department of Indian Affairs and Northern Development, Circumpolar Liaison Directorate, “Canada-Russia Arctic Cooperation Annual Report April 1, 2008 – March 31, 2009,” and Department of Indian Affairs and Northern Development, Circumpolar Liaison Directorate, “Canada-Russia Arctic Cooperation Annual Report April 1, 2009 – March 31, 2010.”

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Russian Federation such as the reorganization and restructuring of the federal department competencies within the SFD region. In November 2010, the newly appointed Presidential Plenipotentiary Envoy, Viktor Tolokonsky, “emphasized the accomplishments of the long-standing program” and “proposed a joint Canada/Russia conference to set new priorities” in late 2011.102 On 22 November 2011, parties to the SFD Program met in Krasnoyarsk. They celebrated the tenth anniversary of the signing of the SFD Protocol and “acknowledged the numerous positive accomplishments of the Program to date.”103 Prospects for future cooperation were discussed which included a proposal to conduct a bi-annual conference to promote “dialogue and dissemination of program results and outcomes.”104 The Canada-Russia Northern Partnership Development Program The Canadian International Development Agency (CIDA) launched the Canada-Russia Northern Partnership Development Program (NORDEP) in 2005. The purpose of the program was “to provide a training and exchange mechanism to assist Russian authorities and institutions at the federal, regional and local levels.”105 Its stated objectives included the promotion of effective governance and sustainable regional economic development in the Russian North and Far East as well as the strengthening of Canada-Russia partnerships. To achieve these ends, NORDEP sponsored capacity-building activities such as study tours and training in Canada, and technical assistance within the Russian Federation. The program ran until March 2010.106 The Arctic and North Working Group Article V of the 1994 Agreement between Canada and the Russian Federation on Economic Cooperation established the Canada-Russia Intergovernmental Economic Commission (IEC).107 In accordance with the Agreement, the parties have met approximately every two years. While the work of the IEC is central to Canada-Russia bilateral relations, the Arctic and North Working Group (ANWG) is of relevance. Acting as an advisory board to the IEC, the ANWG 102 CLD Annual Report 2011, supra note 99, at 13. 103 Department of Indian Affairs and Northern Development, “Meeting Report – International Conference on Siberian North and Arctic: Global Challenges of the 21st Century,” November 2011, on the Department of Indian Affairs and Northern Development website, supra note 76. 104 Id. 105 “Project profile for Northern Development Partnership Program,” 31 May 2011, on the Canadian International Development Agency website at http://www.acdi-cida.gc.ca. 106 CLD Annual Report 2008, supra note 47, at 21. 107 1994 Economic Cooperation Agreement, supra note 44.

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serves as a political forum “facilitating bilateral discussions on policy issues of common concern related to the Arctic and the North.”108 Activities of the ANWG consist of exchanges of information and delegations, trade missions, joint research and publications, symposia, and technology transfers.109 Despite increased Canadian foreign direct investment in the Russian Federation and favorable trade statistics between the two countries, CAD believes there to be numerous untapped opportunities for small and medium sized Canadian enterprises operating in the Arctic region.110 At the present time, ANWG initiatives are heavily focused on the Northern Chambers of Commerce partnership program, which aims to encourage networking between business organizations of northern regions.111 The establishment of a Circumpolar Chamber of Commerce is also a priority from the Canadian perspective. Over the past few years, numerous events have been organized to facilitate networking, including the Northern Lights Trade Show in Ottawa, the annual Canada-Russia Mining Conference, investment roundtables and numerous trade missions.112 The most recent ANWG meetings were held in 2009 and 2011. A summary prepared by the co-chairs of the 2009 ANWG meeting indicates that a priority of Canada and the Russian Federation was the promotion of dialogue between Arctic sub-regions interested in developing transpolar air and sea routes, specifically the establishment of “a year round marine transportation route between Churchill and Murmansk, as well as establishing a regular air cargo service between Winnipeg and Krasnoyarsk.”113 The latter project, known as the ‘Northern Air Bridge’, was approved in May 2011.114

Other Forms of Bilateral Arctic Cooperation

Falling outside the treaty-based relationships of Canada and the Russian Federation are several indicators of bilateral cooperation in the Arctic. 108 “Terms of Reference and Vision Statement of the Canada-Russia Intergovernmental Economic Commission Arctic and North Working Group,” 19 August 2010, on the Foreign Affairs website, supra note 30. 109 Id. 110 CLD Annual Report 2008, supra note 47, at 14. 111 CLD Annual Report 2010, supra note 101. 112 Id. 113 “Joint Statement on the Results of the Seventh Session of the Canada-Russia Intergovernmental Economic Commission,” 23 June 2009, on the Foreign Affairs website, supra note 30. 114 Filippenkova, supra note 57, at 74.

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The Northern Dimension of Canada’s Foreign Policy Canada has expressed its desire to work with the Russian Federation on issues of Arctic importance within its Northern Dimension of Canada’s Foreign Policy document, which contains a section specifically dedicated to “Cooperation in Northern Russia.” The document notes “[t]he Arctic identity that Canada shares with Russia provides a special basis for co-operation focusing on the North,”115 and it describes the bilateral agreements that focus on scientific and economic development, indigenous peoples and the environment. The Policy states that “[a] prosperous Russia is crucial to the stability of the international system, and a sustainable and prosperous North is crucial to the stability of Russia.”116 Issues related to environmental degradation and lack of economic development in the wake of the Soviet collapse are discussed, as is Canada’s unique relationship with the Russian Federation. Specific initiatives identified as potentially improving cooperation include increasing the funding for the implementation of the 1992 Cooperation Agreement as well as the 2007 MOU, working to expand bilateral cooperation into new areas, supporting the ANWG, and promoting youth exchange programs.117

The Russian Federation’s State Policy in the Arctic Until 2010 and Beyond The Russian Federation has also indicated a desire for enhanced Arctic cooperation in its official literature. In September 2008, the Kremlin released a statement entitled, “The Foundations of the Russian Federation’s State Policy in the Arctic Until 2020 and Beyond,” which outlines Russia’s national interests, major objectives and strategic priorities in the Arctic, as well as mechanisms for policy implementation.118 While not identifying Canada specifically, it identifies the Arctic as a critical arena for mutual relations with foreign partners and states the desire of the Russian Federation to establish a mutually beneficial regime of bilateral and multilateral cooperation on the basis of international treaties and agreements.119 The statement firmly communicates 115 116 117 118

“The Northern Dimension of Canada’s Foreign Policy,” supra note 89, at 15. Id., at 14. Id., at 16. “Основы государственной политики Российской Федерации в Арктике на период до 2020 года и дальнейшую перспективу,” Российская Газета, 30 March 2009, http:// www.rg.ru; “Foundations of the Russian Federation’s State Policy in the Arctic Until 2020 and Beyond,” 18 September 2008, American Foreign Policy Council, available on the Journal of International Security Affairs website at http://www.securityaffairs.org. 119 M. Rusnak and I. Berman, “Russia’s New Arctic Strategy,” The Journal of International Security Affairs 18 (2010): 97.

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the Russian Federation’s resolve in pursuing its interests in the Arctic and its commitment to maintaining a strong military presence in the region. However, it also makes clear that these interests will be realized in strict accordance with international law and treaties.120 Overall, the language of the statement is cooperative and conciliatory and should serve as reassurance that the Russian Federation aims to work with its Arctic neighbors, such as Canada, in pursuing its Arctic objectives. Areas of priority include socio-economic development, science and technology, and environmental security.121 Joint Policy Statement on Canada-Russia Relations Commitment to bilateral cooperation on Arctic issues has also been communicated by the highest levels of the Russian and Canadian governments. In July 2006, following the G8 Summit in St. Petersburg, the “Joint Policy Statement by Prime Minister Stephen Harper and President of the Russian Federation Vladimir Putin on Canada-Russia Relations” was released which reaffirmed their “commitment to reinforce key areas of joint endeavour.”122 The statement includes the following related to Arctic cooperation: We are neighbours in the vastness of the North and we share a deep commitment to the welfare of our Arctic communities. As partners in the Arctic Council and through our bilateral dialogue and cooperation, we shall continue to work together toward sound and sustainable Northern development, balancing environmental protection with economic prosperity.123 Though this Joint Statement was released prior to the tensions created by the 2007 Arktika mission, this remains an important indicator of the commitment of the top Canada-Russian Federation leadership to peaceful, cooperative relations in the promotion of each country’s interests in the Arctic region.

120 Id. 121 Id. 122 “Joint Policy Statement by Prime Minister Stephen Harper and President of the Russian Federation Vladimir Putin on Canada-Russia relations,” 15 July 2006, on the Prime Minister of Canada’s website, supra note 55. 123 Id.

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Assessment and Aspirations

The media often presents a grim portrait of cooperation in the Arctic. In reality, Canada and the USSR worked collaboratively on Arctic issues for decades before the emergence of the Russian Federation. This cooperation culminated in the creation of the Arctic Science Exchange Programme and the signing of a variety of formal bilateral treaties between 1988 and 1989, including the 1989 Agreement on Cooperation in the Arctic and the North. This Agreement, renewed in 1992 between Canada and the successor State to the USSR, the Russian Federation, was part of a blossoming of treaties and less formal instruments that have resulted in a variety of Arctic-focused initiatives. The 2007 Memorandum between DIAND and MinRegion, and its associated annual work plans, remain the focal point of Canada-Russia relations in the Arctic, with CAD having launched a variety of initiatives aimed at improving living standards and encouraging economic development. The SFD program and the ANWG have also provided real benefits to northern citizens in both countries. Canada and the Russian Federation share a strong northern bond, described by one scholar as the intangible quality of ‘nordicity’.124 Russia and Canada have worked collaboratively to address issues of economic development, indigenous populations and other northern issues. The Canada-Russia relationship is strong, and although cooperation has not always been easy or expeditious, as is evidenced by the shortcomings of the 1970s and early 2000s, it is grounded in decades of goodwill and gaining in momentum as Russia regains economic stability and the region continues to rise in its perceived importance. Despite its strength, Canada-Russia cooperation exhibits a variety of shortcomings that should be addressed if the relationship is to provide maximum benefit to countries and their respective northern populations. First, cooperation between these two large, federal States has often been hampered by the fragmented nature of responsibility for the Arctic portfolio. In Canada, DIAND and the Department of Foreign Affairs, Trade and Development must work collaboratively, which often leads to confusion and delay. Efforts to establish and maintain a Canadian Circumpolar Ambassador to coordinate efforts in the region ended with the 2006 decision to discontinue the role.125 124 Hannigan, supra note 38, at 54. 125 “Circumpolar ambassador job axed,” CBC News, 3 October 2006, on the CBC website, supra note 1.

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Within the Russian Federation, a variety of government departments have been charged with the Arctic portfolio since 1991. Goskomsever was ill equipped and financed to produce tangible results during the Yeltsin presidency and was dismantled under Putin. Putin in turn centralized policy-making within the presidential administration, allocated much of the portfolio to the Ministry of Economic Development and Trade, and preferred Arctic issues to be handled via regular channels not specific to the region. Without stability in its Russian counterpart agency, or consistency in the Russian government’s treatment of the portfolio generally, joint cooperation has not met the expectations for the 1992 Cooperation Agreement. Second, the focus of bilateral cooperation since the 1992 Cooperation Agreement has been economic development, including trade and the extraction of natural resources. Little collaboration has occurred in respect to environmental issues such as land-based marine pollution or social issues such as low living standards, health and crime in indigenous populations within each country. The 1992 Agreement specifically lists northern environment and conservation as a priority area, as well as capacity building for aboriginal peoples, issues that have yet to appear prominently in any of the work plans. The focus on development is indicative of Russian priorities to rebuild its economy, but this must shift if collaboration is to result in the benefits originally envisioned for the native populations of the Arctic region. Lastly, Canada must take lessons from Russian cooperation with other countries if it is to effectively institutionalize its program of Arctic cooperation. Norway recently settled a 40-year Arctic border dispute with the Russian Federation in the Barents Sea through the signing in September 2010 of a historic bilateral treaty.126 The Agreement received heavy news coverage and was touted by the Russian President as a “‘constructive’ model of how rival Arctic nations should settle their differences.”127 Canada should

126 Treaty between Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 September 2010, Law of the Sea Bulletin 77 (2012): 24. 127 Luke Harding, “Russia and Norway resolve Arctic border dispute,” The Guardian, 15 September 2010, on the Guardian website at http://www.guardian.co.uk. For reviews of the agreement, see: Helena Traner, “Resolving Arctic Sovereignty from a Scandinavian Perspective,” Case Western Reserve Journal of International Law 44 (2011): 497; Thilo Neumann, “Norway and Russia Agree on Maritime Boundary in the Barents Sea,” American Society of International Law Insights 14, no. 34 (2010); and Tore Henricksen and Geir Ulfstein, “Maritime Delimitation in the Arctic: The Barents Sea Treaty,” Ocean Development & International Law 42 (2011): 1.

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seek to institutionalize its cooperative activities with Russia through means more formal than an interdepartmental MOU in an effort to avoid the issues of informality and inconsistency that have plagued Canada-Russia Arctic relations over their 50-year history. More importantly, those efforts that do exist, be they formal or informal, wide-reaching or narrow in scope, should be better publicized. The Canada-Russia relationship, built on similarities such as climate and a culture of ‘nordicity’, is far stronger than what is communicated by domestic and international media. As noted by Canadian Arctic scholar Michael Byers, “Canadian politicians have to stop their bellicose rhetoric about Russia’s actions, and the ongoing behind-the-scenes cooperation between Ottawa and Moscow should be publicly recognized.”128 CanadaRussia cooperation in Arctic Ocean governance, while never frozen, has thawed dramatically in the past several years. It is high time that the ‘sabre-rattling rhetoric’ is dropped and that the warming relationship between these northern neighbors is accurately reported and publicly appreciated. Postscript A further issue in Canada-Russian Federation relations has arisen over Russian incursions into Crimea and escalating tensions in the eastern Ukraine. The impacts of this on long-term Arctic cooperation remain to be seen.129 A March 2014 meeting of Arctic Council Senior Arctic Officials in Yellowknife, Northwest Territories, Canada went ahead with Russian participation. However, Canada has subsequently halted bilateral activities on various fronts including between Canadian and Russian armed forces. In April 2014, Canada did not attend an Arctic Council task force meeting in Moscow on black carbon and methane in light of Russia’s provocative actions.130 These recent political developments 128 Byers, supra note 20, 129. 129 See: Rob Huebert, “How Russia’s move into Crimea upended Canada’s Arctic strategy,” The Globe and Mail, 2 April 2014, at http://www.theglobeandmail.com/globe-debate/ how-russias-move-into-crimea-upended-canadas-arctic-strategy/article17766065/. 130 See: Kim Mackrael, “Ottawa upbraids Russian envoy, skips Arctic Council meeting over Ukraine,” The Globe and Mail, 15 April 2014, at http://www.theglobeandmail.com/news/ politics/ottawa-upbraids-russian-envoy-will-skip-arctic-council-moscow-meeting-over -ukraine/; Government of Canada, “Canada Takes Principled Stand on Arctic Council Meetings,” News Release (15 April 2014).

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highlight the reality that the Arctic is not a region unto itself and is intimately connected to broader extra-regional and global socio-economic, environmental and political realities.131 131 See: David L. VanderZwaag, “The Arctic Council and the Future of Arctic Ocean Governance: Edging Forward in a Sea of Challenges,” in Polar Oceans Governance in an Era of Environmental Change, eds. Tim Stephens and David L. VanderZwaag (Cheltenham, UK: Edward Elgar, 2014), 308–338, at 326–328.

part 5 Specific Arctic Legal Issues

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chapter 14

Does Recent Practice of the Russian Federation Point to an Arctic Sunset for the Sector Principle? Alex G. Oude Elferink* Introduction When I was asked to prepare a contribution to the present volume, I at first considered the possibility of writing a piece on Canada’s implementation of its obligations under Article 76 of the U.N. Convention on the Law of the Sea (LOS Convention),1 which requires a coastal State to make a submission to the Commission on the Limits of the Continental Shelf (CLCS) in respect of the outer limits of its continental shelf where it extends beyond 200 nautical miles.2 However, when I considered the matter a little further, I decided to shift my focus and look at the use by Canada and the Russian Federation of meridians—also referred to as sector lines because these meridians meet at the North Pole and divide the Arctic Ocean in sectors—to define the extent of their maritime zones in the Arctic. In view of Professor Pharand’s contributions to this topic, this seemed an appropriate choice, but also a challenge.3 There would be little to add to what Professor Pharand and some other scholars have written on this topic.4 For that reason, I decided to focus on recent developments. After I had researched recent practice, it turned out that there * Netherlands Institute for the Law of the Sea, School of Law, Utrecht University, The Netherlands and K.G. Jebsen Centre for the Law of the Sea, University of Tromsø, Norway. I would like thank Erik Molenaar, Jan Solski and the editors of this volume for their comments on a draft of this paper. Any mistakes or omissions remain the sole responsibility of the author. 1 U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397. 2 Id., article 76(8). The term ‘beyond 200 nautical miles’ is used herein to refer to ‘beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured’, the language employed in art. 76. 3 See, e.g., D. Pharand, The Law of the Sea of the Arctic with Special Reference to Canada (Ottawa: University of Ottawa Press, 1973) and D. Pharand, Canada’s Arctic Waters in International Law (Cambridge: Cambridge University Press, 1988). 4 See, e.g., E. Franckx, Maritime Claims in the Arctic; Canadian and Russian Perspectives (Dordrecht: Martinus Nijhoff Publishers, 1993) and P.C.Y. Leung, “Arctic Continental Shelf Delineation and Delimitation: The Significance of Ratifying the United Nations Convention on the Law of the Sea and the Sector Theory,” Ocean Yearbook 24 (2010): 475–506.

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was not much to say about Canada. However, the recent practice of the Russian Federation in relation to the delimitation of maritime zones and the establishment of the outer limit of the continental shelf pointed to one intriguing question: what could explain the continued reliance on sector lines by the Russian Federation notwithstanding the fact that there hardly is a basis to maintain that they have legal relevance for determining the extent of coastal State jurisdiction or maritime boundaries between neighboring States? In considering this question, I will first put the discussion of the recent Russian practice in context. The following two sections will then deal with the recent practice of the Russian Federation in respect of the outer limits of its continental shelf and the delimitation of its maritime boundary with Norway. Both sections will also discuss criticisms of the Russian Federation’s approach by Russian scholars and will assess whether these criticisms are legally convincing. The contribution ends with a section which offers some final thoughts on the Russian Federation’s recent use of sector lines and their likely future in the determination of maritime limits and boundaries in the Arctic.

Setting the Stage

Lines of longitude and latitude have often been used by States to define the extent of territory. In the Arctic, lines of longitude have been used to define the boundary between then Russian Alaska and the British North American territories in a convention concluded in 1825.5 In the 1867 Convention on the Cession of Alaska between the Russian Empire and the United States,6 a meridian was used to define the extent of the ceded territory in the Arctic Ocean. A recent example of a treaty using meridians in the Arctic is the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic.7 The Agreement defines search and rescue regions in large part by reference to meridians that converge at the North Pole, dividing the Arctic Ocean into five sectors. The Agreement explicitly provides that “the delimitation of search and rescue regions is not related to and shall not prejudice the delimitation 5 Convention between Great Britain and Russia concerning the Limits of their Respective Possessions on the North-West Coast of America and Navigation in the Pacific Ocean, 16 February 1825, 75 Consolidated Treaty Series (ed. C. Parry) 95–110. 6 Convention ceding Alaska between Russia and the United States, 30 March 1867, 134 Consolidated Treaty Series (ed. C. Parry) 331. 7 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011, reprinted in 50 I.L.M. (2011): 1119.

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of any boundary between States or their sovereignty, sovereign rights or jurisdiction.”8 The Russian Federation’s Arctic sector has its origins in a 1926 Decree of the Central Executive Committee of the USSR.9 This Decree proclaimed all lands and islands located between the two meridians, which were not part of the territory of another State, as territory of the Soviet Union. The Decree did not make reference to claims to maritime zones or maritime boundaries. At the time, most States only claimed a territorial sea, which made the potential significance of the sector lines for determining the extent of the Soviet Union’s maritime zones in the 1920s of limited significance. However, this changed with the advent of the continental shelf after the Second World War and the general acceptance of the 200-nautical mile exclusive economic zone (EEZ) in the 1970s. The continental shelf and EEZ of the Soviet Union overlapped with the same zones of Norway in the Barents Sea and the Arctic Ocean and with the United States in the Chuckchi Sea. From the start of its bilateral negotiations with Norway in the first half of the 1970s, the Soviet Union adopted the position that the boundary had to follow the sector line. Norway rejected the Soviet position and instead submitted that the boundary had to follow an equidistance line. This latter line is mentioned as a delimitation method in article 6 of the 1958 Convention on the Continental Shelf to which both States are parties.10 However, article 6 also provides that that line does not apply in situations where special circumstances justify another boundary. In the case of the United States, the Soviet Union’s position was less clear. In a diplomatic note of January 1977, the United States indicated that in exercising fisheries jurisdiction in its 200-nautical mile zone, it intended

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Id., article 3. Decree on the Proclamation of Lands and Islands Located in the Northern Arctic Ocean as Territory of the USSR of 15 April 1926 (Sobranie Zakonov SSSR 1926, No. 32, Item 203); W.E. Butler, Northeast Arctic Passage (Alphen aan de Rijn: Sijthoff & Noordhoff, 1978), at 174. Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 311. While the Convention on the Continental Shelf refers to special circumstances, the International Court of Justice and arbitral tribunals in applying the LOS Convention and customary international law refer to relevant circumstances. Both terms generally cover the same kind of circumstances. Most relevant/special circumstances are related to geography. These may include, for example, coastal configuration, coastal length and the presence of small islands.

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to adhere to the 1867 Convention on the Cession of Alaska,11 thus implying that it considered that the Convention had defined a maritime boundary. In its reply, the Soviet Union merely noted that it also intended to adhere to the line defined in the 1867 Convention.12 The Soviet note left open the possibility that the legal basis for the Soviet Union’s acceptance of the United States proposal was not the 1867 Convention, but that this legal basis instead might be the Soviet Union’s past reliance on the sector line coinciding with the line of the 1867 Convention. The Soviet Union and the United States formally agreed to use this line for the delimitation of their EEZ and continental shelf in the Chukchi Sea through an agreement concluded on 1 June 1990.13 The acceptance of the 1867 line as a maritime boundary has been criticized by Russian legal scholars as damaging the interests of the Russian Federation in the Bering Sea.14 The Russian Federation’s Parliament thus far has not approved ratification of the Agreement for similar reasons.15 In fact, in the Bering Sea an equidistance line is more advantageous to the Russian Federation and it could even be argued that there are relevant circumstances that should lead to an even more advantageous boundary for the Russian Federation. However, rejection of the 1867 line in the Bering Sea by the Soviet Union in 1977 or at a later stage undoubtedly would also have led to questions concerning the appropriate basis for maritime delimitation in the Chukchi Sea. Soviet reliance on the sector line no doubt would have been rejected by the United States and this would consequently have weakened the Soviet Union’s position in the Barents Sea in relation to Norway. In view of the larger economic and strategic interest of the Barents Sea for the Soviet Union that would have been an 11

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Note of the Embassy of the United States in the USSR to the Ministry of Foreign Affairs of the USSR of 24 January 1977. Russian text reproduced in Sbornik Deistvuiushchikh Dogovorov, Sogalsheniii i Konventsii, zakliuchennykh SSSR s Inostrannymi Gosudarstvami Vol. 33, No. 2524. Note of the Ministry of Foreign Affairs of the USSR to the Embassy of the United States in the USSR of 24 February 1977 (Russian text reproduced in id.). Agreement between the United States and U.S.S.R. on the Maritime Boundary, 1 June 1990, reprinted in 29 I.L.M. (1990): 942, not yet in force. See, e.g., V.A. Konstantinov, “Kogda Soedinennye Shtaty prekratiat unizhat’ Rossiiu?,” (2000, issue 1) Moskovskii Zhurnal Mezhdunarodnogo Prava, pp. 149–155, at 150, 152 and 154 and A. Vylegzhanin, “Soglashenie mezhdu SSSR i SShA o linii razgranicheniia morskikh prostranstv 1990 goda: raznye otsenki ‘vremennogo primeneniia’,” http://www .mgimo.ru/news/experts/document124210.phtml. See, e.g., Resolution No. 2880-III GD of the State Duma of 14 June 2002, http://www .faolex.fao.org/docs/texts/rus33306.doc.

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undesirable outcome and seems likely to be part of the explanation for the Soviet Union’s acceptance of the 1867 line. After the Russian Federation became a party to the LOS Convention in April 1997 it had to further consider the relation between its sector lines and the definition of its maritime zones. Apart from the pending negotiations on the continental shelf and EEZ with Norway, the LOS Convention required that the Russian Federation submit information on the outer limits of its continental shelf beyond 200 nautical miles to the CLCS. To discharge this duty, the Russian Federation had to define these outer limits by reference to fixed points defined by geographical coordinates. In light of this obligation, the Russian Federation would be required to clarify how the outer limits of its continental shelf related to sector lines.

The Submission of the Russian Federation to the CLCS in 2001

In December 2001, the Russian Federation was the first state to make a submission to the CLCS. Two of four areas included in the submission are in the Arctic. One of those areas is located in the central Arctic Ocean and the other in the Barents Sea, to the north of the mainland coasts of Norway and the Russian Federation. In both these areas, the Russian Federation used the sector lines as set out in its national legislation to define the outer limits of its continental shelf beyond 200 nautical miles. However, in the case of the central Arctic Ocean, part of the submitted outer limit was landward of the sector line. Based on an unofficial translation of the Executive Summary of the Russian submission and the attached maps, it can be deduced that in this particular area the application of the substantive provisions of article 76 did not justify extending the outer limits of the continental shelf up to the sector line.16 As the Executive Summary17 and annexed map 2 indicate, the fixed points used in defining the outer limits were determined by combining the two criteria contained in article 76(4) of the LOS Convention: 60 nautical miles from the foot of the slope or the one percent sediment thickness criterion. As was mentioned above, a large part of the outer limits of the continental shelf beyond 200 nautical miles of the Russian Federation in the Arctic Ocean and the entire outer limit in the Barents Sea identified in the Russian 16

17

The unofficial translation of the Executive Summary and annexed charts of the Russian Submission are available on the website of the Commission on the Limits of the Continental Shelf at http://www.un.org/Depts/los/clcs_new/clcs_home.htm. Id., at 2.

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Federation’s Executive Summary coincide with the sector lines as set out in its national legislation. For these areas, the Executive Summary does not indicate the specific provisions of article 76 that have been applied to determine the fixed points defining the outer limits of the continental shelf. However, the statement made by the Deputy Minister for Natural Resources of the Russian Federation during the presentation of the Russian Federation’s submission to the Commission sets out the methodology applied to construct the outer limit of the continental shelf in the Arctic Ocean and confirms that the entire outer limit in the Arctic Ocean was constructed on the basis of the provisions of article 76 of the LOS Convention.18 The Executive Summary identifies the sector lines as a “provisional line of delimitation of the continental shelf of the Russian Federation with neighboring states; subject to more precise definition in the course of negotiations.”19 The Deputy Minister’s statement does not comment on the use of sector lines as provisional lines of delimitation. In two instances, the statement does make reference to the Russian sector in the Arctic. Those references do not indicate that the sector was considered to justify varying the application of the provisions of article 76 nor do they suggest any other possible legal significance of the sector lines for the definition of maritime zones.20 The CLCS did not endorse the outer limits submitted by the Russian Federation. In 2002, the Commission recommended that the Russian 18

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“Statement made by the Deputy Minister for Natural Resources of the Russian Federation during presentation of the submission made by the Russian Federation to the Commission, made on 28 March 2002,” U.N. Doc. CLCS/31, 5 April 2002, available on the CLCS website, supra note 16. This is the description in Russian in the legend and Map 2 annexed to the Executive Summary, supra note 16 (translation by the author). The unofficial English translation of the Executive Summary refers to these lines as “the boundary to be agreed upon with neighboring states” (Executive Summary, 1). Map 2 also identifies the boundary between the Russian Federation and the United States, as part of this provisional line, though this boundary has been agreed upon by the 1990 Agreement between both States, supra note 13. To the contrary, a map annexed to the Executive Summary illustrating the outer limit of the continental shelf of the Russian Federation in the Pacific Ocean identifies the boundary between the Russian Federation and the United States determined by the 1990 Agreement. The different ways of identifying the boundary of the 1990 Agreement may be explained by the fact that the Russian Federation in the Arctic Ocean otherwise would have had to determine a provisional trijunction point between its existing boundary with the United States and a provisional boundary with Canada. This concerns the following observations in the “Statement by the Deputy Minister,” supra note 18: The descriptive diagram of crust types confirms the validity of the plotting of the foot of the continental slope (FCS) for the main morphostructures in the Russian sector (at 1); and

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Federation make a revised submission for the Arctic Ocean based on the findings contained in the recommendations.21 It seems likely that the Commission took issue with the role of the Alpha-Mendeleyev Ridge and the Lomonosov Ridge in establishing the outer limits of the continental shelf of the Russian Federation. The submitted outer limits along the two ridges extended beyond 350 nautical miles. In other words, the Russian Federation considered that they were not submarine ridges caught by article 76(6) of the LOS Convention and thus subject to the limit of 350 nautical miles. The Commission may have concluded either that the submission confirmed that the Alpha-Mendeleyev Ridge and the Lomonosov Ridge are submarine ridges in the sense of article 76(6), or that the two ridges did not form a natural prolongation of the land territory of the Russian Federation, or that it had not been provided with sufficient information to reach any firm conclusions. If the ridges were not found to be a part of the natural prolongation of the Russian Federation, they cannot contribute to the definition of the outer limits of the continental shelf.22 If the outer limits of the Russian Federation’s continental shelf along the ridges were fixed at the 350-nautical mile constraint, they would fall well short of the outer limits contained in the Russian Federation’s submission, in which they coincide with the limits of its Arctic sector. The largest distance between the sector lines and the 350-nautical mile constraint is more than 200 nautical miles.23 Over recent decades, the Russian sector of the Arctic Ocean was mapped by aeromagnetic surveys on different scales whose accuracy varied from a few tenths of nTl to units of nTl (at 4). The Russian text of the latter statement makes reference to the ‘akvatoriia’ (defined area of water) of the Russian sector. 21 See: U.N. General Assembly Resolution, “Oceans and Law of the Sea—Report of the Secretary-General; Addendum,” U.N. Doc. A/57/57/Add.1 of 8 October 2002, paragraph 41. 22 Both these views have been expressed in commentaries on the Russian Federation’s submission and the subsequent recommendations of the CLCS. See: A.G. Oude Elferink “The Continental Shelf in the Polar Regions: Cold War or Black-letter Law?,” Netherlands Yearbook of International Law 40 (2009): 121–181, at 151–152. According to A.L. Kolodkin “Kontinental’nyi shel’f Rossii v Arktike: Perspektivy rasshireniia,” Morskoe Pravo 4 (2007), http://www.sea-law.ru/index.php?option=com_content&task=view&id=113 &Itemid=76, the Commission in its recommendations pointed to the uncertainties in relation to the geological nature of the ridges. Additional geological and geophysical data would be required to confirm the continental nature and structural connection of the ridges to the adjacent continental shelf. 23 For a depiction of the two lines, see the map “Maritime Jurisdiction and Boundaries in the Arctic Region,” available at http://www.dur.ac.uk/resources/ibru/arctic.pdf. A similar map is reproduced in Oude Elferink, supra note 22, at 180. Even if the outer limit of

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Since receiving the recommendations of the CLCS, the Russian Federation has been engaged in preparing a revised submission in relation to the Arctic Ocean and in this connection has gathered additional data in the area of the AlphaMendeleyev Ridge and the Lomonosov Ridge. According to several sources, the Russian Federation is expected to make a renewed submission to the Commission in relation to the Arctic Ocean by 2014.24 The reliance on sector lines as provisional limits of the continental shelf in relation to neighboring States in the Russian Federation’s submission to the CLCS is in accordance with its policy on its maritime boundaries in the Arctic. With the United States, it agreed on the use of the meridian identified in the 1867 Convention on the Cession of Alaska as the limit of the fisheries jurisdiction of both States in 197725 and as the boundary of the EEZ and the continental shelf in 1990.26 In its maritime boundary negotiations with Norway, initiated in 1970 and not finalized when the Russian Federation made its submission in 2001, the Russian Federation relied on the sector line, while also maintaining that there were special circumstances that justified a boundary following the sector line. There are no indications that the continental shelf boundaries with Canada and Denmark/Greenland had been the subject of bilateral negotiations before the Russian Federation started the preparation of its submission to the CLCS.27

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the continental shelf of the Russian Federation were limited by the 350-nautical mile constraint along the ridges, in other areas the Russian shelf would extend beyond that constraint as there are other features that do not fall within the scope of article 76(6) of the LOS Convention. This concerns the eastern part of the Russian Federation’s continental shelf in the Arctic Ocean. See: “Obnavlennaia zaiavka Rossii v Komissiiu OON po granitsam kontinental’nogo shel’fa v Arktike,” http://www.ocean.ru/content/view/1606/41/ and N.P. Laverov, et al., “‘Bazovaia model’ tektonicheskogo razvitiia Arktiki kak osnova dlia podgotovki obnovlennoi zaiavki Rossii v Komissiiu OON na ustanovlenie vneshnei granitsy kontinental’nogo shel’fa,” Arktika 2, no. 6 (2012): 4–19, at 4. In February 2013, the Russian Federation made a revised submission for the Sea of Okhotsk, one of the other areas included in its original submission, available on the CLCS website, supra note 16. Convention on the Cession of Alaska, supra note 6. 1990 Agreement, supra note 13. See also: Ministry of Foreign Affairs of the Russian Federation, Press and Information Department, “Commentary to questions of RIA Novosti on the Russian expedition in an area of the Arctic Ocean” (text in Russian) of 30 July 2007, http://www.mid.ru (no longer available online), in which it is indicated that this question will only be considered once there is a clear scientific and legal determination that the continental shelf of the Russian Federation overlaps with that of its neighboring States.

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There are several reasons to explain the choice of the sector line vis-à-vis Canada and Denmark/Greenland. To do otherwise might have seriously weakened the Russian Federation’s position in its negotiations with Norway. Secondly, one alternative for the sector line could have been an equidistance line, but that line would be less advantageous for the Russian Federation. One drawback of the equidistance method is that a number of Russian basepoints generating the western part of the equidistance line are separated from that line by an area that is beyond the outer limits of the continental shelf. Disregarding these basepoints shifts the equidistance line in the direction of the Russian Federation.28 Further, the equidistance line on the Russian Federation’s side is in part controlled by basepoints situated on two small offshore islands, Henrietta and Jeannette, which are located to the north of the New Siberian Islands. In a delimitation in accordance with the applicable law, these islands might be given no or at best limited weight in determining a bilateral continental shelf boundary.29 This is not to say that the view that the continental shelf boundary should follow a sector line is legally more convincing, but simply that equidistance did not provide a particularly attractive alternative.30 Rob Huebert, in testimony before the Standing Committee on Fisheries and Oceans of the Canadian Senate, emphasized the significance of the Russian Federation’s reliance on sector lines in its submission to the CLCS. He also pointed to the planting of the Russian Federation’s flag on the seabed at the North Pole in June 2007, an event which drew significant media coverage. He viewed this as an attempt “to convince the world that we should go back to the sector theory and divide from the North Pole,” which would short-change Canada.31 Another approach the Russian Federation might have entertained in preparing its submission would have been to include all the areas that it viewed as a part of its continental shelf pursuant to article 76. It is not known whether this option was considered. In light of the geography and geology of the Arctic basin and the relevant provisions of article 76, this approach would have implied that the Russian Federation would have had to submit data covering at least the area up to the 200-nautical mile limit of Canada and Denmark/Greenland. The need to acquire 28 29 30

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For a comparison of the sector line and an equidistance line taking into account these basepoints, see the map “Maritime Jurisdiction,” supra note 23. The distance of Henrietta and Jeannette to the main islands of the New Siberian Islands is approximately 160 nautical miles. One of the interesting consequences of the possible extension of the continental shelf to the area of the mid-Arctic ridges is that the Russian Federation and Canada, the two ‘sectorStates,’ would have overlapping maritime entitlements. See: Leung, supra note 4, at 505. Canada, “Proceedings of the Standing Senate Committee on Fisheries and Oceans,” Issue 5—Evidence—March 13, 2008, http://www.parl.gc.ca/Content/SEN/Committee/392/ fish/05ev-e.htm?comm_id=7&Language=E&Parl=39&Ses=2.

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and process additional data for so large an area probably did not make this an attractive alternative to start with. All the other Arctic coastal States reacted to the submission of the Russian Federation to the CLCS through diplomatic notes. The United States referred to the fact that the boundary of the continental shelf between itself and the Russian Federation had been determined by the 1990 Agreement.32 Norway referred to its ongoing negotiations with the Russian Federation and reiterated its position that the boundary should be an equidistance line.33 Canada and Denmark did not refer explicitly to the fact that in its submission the Russian Federation had applied the sector line as a provisional limit, but both noted that the Russian Federation’s submission and any recommendations by the CLCS would be without prejudice to the delimitation of the continental shelf between themselves and the Russian Federation.34 The approach of the Russian Federation to establishing the outer limits of its continental shelf in the Arctic, which was based on adherence to article 76 of the LOS Convention, has been criticized by a number of Russian academics. One such criticism has been that by making its submission to the CLCS, the Russian Federation for the first time had limited its rights in its Arctic sector, the boundaries of which had been established by national legislation that currently remained in force, namely the Decree of the Presidium of the Central Executive Committee of the USSR of 15 April 1926.35 It was further argued that by making the submission the Russian Federation had for the first time indicated that it was prepared to accept the jurisdiction of the International Seabed Authority 32 United States, Note Verbale, 28 February 2002, available on the CLCS website, supra note 16. 33 Norway, Note Verbale, 30 March 2002, available on the CLCS website, supra note 16. The Norwegian Note did not use the term equidistance line, but provided the coordinates of this line. 34 Canada, Note Verbale, 18 January 2002, and Denmark, Note Verbale, 4 February 2002, available on the CLCS website, supra note 16. See also: LOS Convention, supra note 1, article 76(10) and Annex II, article 9. 35 Statement of Professor S.A. Gureev at a round table sponsored by the Council of the Federation at the Federal Assembly of the Russian Federation in 2005, reported in I.V. Bunik, “Obosnovanie Prav Rossiiskoi Federatsii v Arktike: Obzor Iuridicheskoi Doktrinoi,” http://pravo.ru/themes/images/i/bunik.pdf (no longer available at this site); pdf-file on file with the author, at 7. See also: statement of Professor G.K. Voitolovskii, reported in id at 11; G.M. Melkov, “Kontinental’nyi shel’f i osnovy gosudarstvennoi politiki Rossii v Arktike,” http://ni-journal.ru/archive/14928136/n_3_2009/9d754911/0ce664df/. For another article that argues that article 76 of the LOS Convention does not serve the interests of the Russian Federation, see: V.M. Zhukovskii, “Rossiia. Kurs na Arktiky,” http:// www.km.ru/referats/333000-rossiya-kurs-na-arktiku.

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over a part of the seabed of the Arctic and that this did not reflect the long-term interests of the Russian Federation.36 It was also pointed out that the other coastal States had not taken a similar step to limit the extent of their continental shelf in the Arctic Ocean,37 and Canada was recommended for maintaining its sector claim.38 The Russian Federation’s submission was also criticized because it was untimely—the Russian Federation could have deferred its submission until 2009—and had allowed the recently formed Commission to pass judgment on the historically developed major national interests of the Russian Federation in the Arctic.39 A round table of Russian international lawyers in April 2008 expressed further concerns about the procedure involving the CLCS. No progress had been made on the Russian Federation’s revised submission since 2001, and it was argued that the more geological data the Russian Federation presented to the CLCS, the more questions would be raised. In sum, it was argued that the decision to make a submission to the CLCS was not in accordance with the Russian Federation’s national interest, did not take into account the negative consequences for the Russian Federation of the internationalization of a part of the Arctic Ocean, and exaggerated the role of the CLCS since it ignored the fact that not all Arctic coastal States were a party to the LOS Convention.40 The round table participants also submitted that the continental shelf between Canada and the Russian Federation could be delimited by a bilateral agreement without the involvement of the Commission. This delimitation could be effected by employing the sector lines of the Russian Federation and Canada, the equidistance method or another (combined) method.41 This would guarantee that “neither Russia nor Canada would transfer a part of its shelf in the Arctic to the international seabed area.”42 According 36

Statement of Gureev, id., at 7; statement of Voitolovskii, id., at 11 and 15 and see also: statement of Professor A. Vylegzhanin, reported in “Rossiia namerena vernut’ uchastok Arktiki, kotoryi v svoe vremia otdala chelovechestvy,” NEWSru.com, 8 December 2011, http://www.newsru.com/finance/08dec2011/arctic_print.html. 37 Statement of Gureev, supra note 35, at 7–8; statement of Voitolovskii, id., at 11 and 16; and statement of Vylegzhanin, supra note 36. 38 Statement of Gureev, supra note 35, at 8; statement of Voitolovskii, id., at 11; and Melkov, supra note 35. 39 Statement of Gureev, supra note 35, at 7. 40 Bunik, supra note 35, at 17. 41 Id. 42 Id., at 18. Translation by the author. The idea that the entire Arctic Ocean could be divided between the coastal States was suggested by Melkov, supra note 35 and P.L. Matveevich, “Mezhdunarodno-pravovye problemy razdela ekonomicheskikh prostranstv Arktiki,” http://www.norge.ru/artcitclov/. The international seabed area is also referred to as the Area.

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to Bunik, the 2008 Ilulissat Declaration43 confirmed that this was the right approach. The Declaration observed that there was no need to develop a new international legal regime for the Arctic; noted that States without a continental shelf in the Arctic Ocean had not been invited to the meeting; and confirmed that the view that there was no res nullius or res communis in the Arctic was correct.44 A similar view on the Ilulissat Declaration was expressed by Melkov, who criticized the Russian government for persisting with its preparation of a further submission to the CLCS after the Ilulissat Declaration had “buried the idea of the creation of an international seabed area in the center of the Arctic for good.”45 The above critique of the Russian Federation’s decision to implement its obligations in respect of article 76 of the LOS Convention is in essence based on the assumption that the rights of the Russian Federation in the Arctic are more extensive than those set out in the LOS Convention. For instance, Bunik argued that the international legal regime of the Arctic developed long before the adoption of the LOS Convention. He further submits that activities in the Arctic were for centuries mostly regulated by the national legislation of the coastal States and that the conception of Arctic sectors was in accordance with international law.46 Russian (and Soviet) legislation actually provides little support for the views of Bunik and the other Russian scholars critical of the Russian Federation’s decision to define the outer limits of its continental shelf in the Arctic Ocean in accordance with article 76 of the LOS Convention. The 1926 Decree was only concerned with sovereignty over the land territory contained in the sector defined by it.47 The only piece of legislation that could be said to envisage the possibility of application beyond what is permitted under international law is 43

The Ilulissat Declaration was adopted by the coastal States of the Arctic Ocean (Canada, Denmark, Norway, the Russian Federation and the United States) on 28 May 2008, reprinted in 48 I.L.M. (2009): 362. 44 Bunik, supra note 35, at 18–19. The division of the Arctic Ocean in national sectors between the coastal States was suggested by D.M. Johnston, “The Future of the Arctic Ocean: Competing Domains of International Public Policy,” Ocean Yearbook 17, eds E. Mann Borgese, A. Chircop and M. McConnell (Chicago: University of Chicago Press, 2003): 596–624, at 616, arguing that because the Arctic Ocean is very different from other ocean areas, it should be removed from the normal law of the sea framework. At the same time he qualified this option as extreme. 45 Melkov, supra note 35, translation by the author. 46 Bunik, supra note 35, at 18–19. 47 For recent Russian publications that consider that the limits contained in the 1926 Decree are not relevant for defining the extent of the maritime zones of the Russian Federation in the Arctic, see, e.g., Kolodkin, supra note 22; R.A. Kolodkin, “Dogovor s Norvegiei: Razgranichenie dlia sotrudnichestva,” Morskoe Pravo 1 (2011): 11–12,

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an Edict of 1984.48 This Edict applies to an area which includes the sea areas adjacent to the northern coast of the USSR. Subsequent legislation specified that the Edict generally applied to the area within the 200-nautical mile limit but that article 3 of the Edict also applied to the Northern Sea Route and adjacent areas,49 which might also include the high seas.50 However, this does not necessarily imply a claim to jurisdiction that goes beyond what is permitted under international law. Ships making use of the Northern Sea Route accept the regulatory powers of the Russian administration, including for those parts of the Route that are located in the high seas. The legislation, however, does not claim jurisdiction in respect of other foreign-flagged vessels operating beyond the outer limit of the 200-nautical mile zone. The criticism of the Russian Federation’s submission to the CLCS also ignores its long-standing practice on the definition of its continental shelf. The Soviet Union adopted legislation on its continental shelf in 1968.51 This legislation mirrored article 1 of the 1958 Convention on the Continental Shelf, to which the Soviet Union was a party. In 1995 the Russian Federation redefined its continental shelf. This legislation provides: If the continental margin extends for a distance of more than 200 nautical miles from the aforementioned baselines, the outer edge of the

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http://sea-law.ru/magazines/slm_1_2011/index.html; and V.N. Gutsuliak and G.G. Shinkaretskaia, “Problemy sovremennogo rezhima Arktiki i interesy Rossii,” Morskoe Pravo 1 (2010), http://www.sea-law.ru/index.php?option=com_content&task=view&id =278&Itemid=76>. Edict of the Presidium of the USSR Supreme Soviet, 26 November 1984, On Intensifying Nature Protection in Areas of the Extreme North and Marine Areas Adjacent to the Northern Coast of the USSR, http://russia.bestpravo.ru/ussr/data02/tex12738.htm (in Russian). The Edict was mainly concerned with the matters regulated by LOS Convention, supra note 1, article 234, which is applicable to ice-covered areas within the outer limits of the EEZ. Decree of the Council of Ministers of the USSR, 1 June 1990, On measures for Securing the Implementation of the Edict of the Presidium of the USSR Supreme Soviet of 26 November 1984 “On Intensifying Nature Protection in Areas of the Extreme North and Marine Areas Adjacent to the Northern Coast of the USSR,” article 12, http://lawsector.ru/ data/dos09/txc09566.htm (in Russian). See Franckx, supra note 4, at 188–189. Decree of the Presidium of the Supreme Soviet of the USSR, 6 February 1968, On the Continental Shelf of the Soviet Union, article 1. English translation on the website of the U.N. Division for Ocean Affairs and the Law of the Sea (DOALOS), http://www.un.org/ Depts/los.

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continental shelf coincides with the outer edge of the continental margin determined in accordance with the rules of international law.52 This reflects the general definition of the continental shelf contained in article 76(1) of the LOS Convention. The legislation contains no indication that it was not intended to apply to the Arctic Ocean. The Russian Federation’s submission to the CLCS is in conformity with the definition of the continental shelf contained in its national legislation.53 It has also been suggested that the depiction of sector lines on maps that accompanied agreements concluded by the Soviet Union has led to international recognition of those sector lines as defined in its national legislation.54 However, since the boundaries established by the agreements that are invoked in support of this argument do not coincide with the sector lines, these maps do not carry significant legal weight.55 The suggestion that the Russian Federation would be giving away a part of its continental shelf by determining the outer limits of its continental shelf in accordance with article 76 of the LOS Convention is incorrect. Seabed areas within the Russian Arctic sector that are beyond the substantive provisions of article 76 of the LOS Convention never formed part of the continental shelf of the Russian Federation. Article 76(2) of the LOS Convention specifies that the substantive provisions of article 76 apply prior to the making of a submission to the CLCS. A State that refrains from making a submission to the CLCS is thus bound by the same substantive rules as those States making a submission. The argument that the delimitation of the continental shelf concerns only the coastal States of the Arctic Ocean and does not involve the CLCS, on the 52 53 54 55

Federal Law on the Continental Shelf of the Russian Federation, 25 October 1995, article 1. English translation available on the DOALOS website, id. See also: Gutsuliak and Shinkaretskaia, supra note 47. See: “Barentsevomorskoe razgranichenie: vzaimovygodnyi dogovor ili ustupka?,” NordNews, 8 December 2010, http://nord-news.ru/topic/?mtopicid=159. The article refers explicitly to the 1947 Treaty of Peace with Finland and a treaty between Norway and the Soviet Union on the regime of their common boundary concluded on 29 December 1947. The Treaty of Peace with Finland, 10 February 1947, 48 U.N.T.S. 203. The Treaty as published in U.N.T.S. contains one map, but the map does not identify a sector line. The December 1947 treaty could not be located. An agreement between Norway and the Soviet Union on the maritime boundary in the Varanger Fjord of 1957, 312 U.N.T.S. 289, defines a boundary comprised of two line segments neither of which coincides with a sector line (see the map in 312 U.N.T.S. 289 at 293). For an authoritative statement on the probatory value of maps, see: Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) [1986] I.C.J. Reports, 554, paragraph 54.

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other hand, is correct. Delimitation of the continental shelf between neighboring States is governed by article 83 of the LOS Convention and article 76(10) of the Convention confirms that the establishment of the outer limits of the continental shelf and its delimitation between neighboring States are two separate processes. However, the fact that more than one State has an entitlement to an area beyond 200 nautical miles does not discharge a State of its obligations under article 76 of the Convention. Moreover, coastal States cannot encroach on the Area by the bilateral delimitation of an area that is beyond the outer limits of the continental shelf.56 If a part of the Arctic Ocean is beyond the limits of national jurisdiction, a division of the entire Arctic Ocean basin between the coastal States would imply just such an encroachment on the Area. The argument that the other Arctic Ocean coastal States are not committed to the article 76 process might have had a certain appeal at the time the Russian Federation made its submission to the CLCS in 2001. At the time, not only was the United States not a party to the LOS Convention, but this was also the case for Canada and Denmark. However, the latter two States became parties shortly afterwards, in 2003 and 2004 respectively. The United States remains outside the Convention, but has indicated that it accepts that article 76(1)–(7) reflects customary international law.57 Reliance on the Ilulissat Declaration as an argument to circumvent the application of article 76 of the LOS Convention to the Arctic Ocean seems impossible to square with the actual text of the Declaration, which provides that: Notably, the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims.58 The Declaration recognizes that the law of the sea provides the legal framework for delineation of the outer limits of the continental shelf—the LOS 56 57

58

See LOS Convention, supra note 1, articles 134(3), 134(4) and 137. See United States, “Policy Governing the Continental Shelf of the United States of America,” attached to a Memorandum from Assistant Secretary John D. Negroponte to Deputy Legal Adviser Elizabeth Verville, 17 November 1987 (State Department File No. 0140–0428), reproduced in J.A. Roach and R.W. Smith, Excessive Maritime Claims (U.S. Naval War College International Law Studies, vol. 66, 1994), at 125. See also infra note 59. Ilulissat Declaration, supra note 43.

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Convention for its States parties and customary international law for other States—and distinguishes this process from that of settling the delimitation of overlapping claims.59 The wording in relation to the settlement of overlapping claims acknowledges that there may be areas in which the continental shelves of the coastal States do not overlap and that in such a situation, the outer limit of the continental shelf would constitute the inner limit of the Area. The suggestion that a new submission to the CLCS would only lead to further questioning of the Russian Federation’s approach is speculative. Participation of the coastal State in the consideration of a submission is guaranteed by the Convention.60 The practice of the CLCS indicates that in considering submissions, subcommissions frequently meet or are in contact with the submitting State and provide ample opportunity to that State to further explain its position or submit additional data and other information. Whether the early submission of the Russian Federation placed it at a disadvantage is difficult to ascertain without access to the relevant documentation. Still, a couple of points can be noted. By being the first State to make a submission, the Russian Federation had a greater opportunity to influence the working methods of the Commission and its views on the implementation of article 76. On the other hand, an early submission may also have involved a certain risk. The Commission may have been hesitant to deal with specific points without having a clearer view of the kind of issues that might be raised in subsequent submissions. In any case, the implications for the Russian Federation of a negative outcome were limited. Contrary to third party dispute settlement, which in principle allows no possibility of review, the LOS Convention entitles a coastal State to make a new or revised submission if it does not agree with the recommendations of the Commission.61

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Opponents of the Russian Federation’s adherence to article 76 of the LOS Convention might argue that the United States under customary law can extend its continental shelf jurisdiction beyond the limits provided for in that article. As was observed above, the United States has indicated that it considers that article 76(1) to (7) reflect customary international law. If the United States were to remain outside of the Convention, it would not be required to make a submission to the CLCS. This could be said to give it a greater margin of discretion in determining the outer limits of its continental shelf than States parties to the LOS Convention. At the same time, the absence of recommendations of the Commission endorsing the outer limits of the United States would imply that these limits might not garner the same level of recognition as outer limits established by States parties in accordance with article 76 of the LOS Convention. See LOS Convention, supra note 1, Annex II, article 5. Id., Annex II, article 8.

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The 2010 Agreement between the Russian Federation and Norway

The Russian Federation and Norway concluded a bilateral agreement to delimit their maritime zones in the Barents Sea and the Arctic Ocean in September 2010.62 The Agreement put an end to 40 years of negotiations and apart from determining a boundary, also sets up a regime for cooperation in relation to fisheries and hydrocarbons.63 In the negotiations, as noted above, the parties held widely diverging positions on what should be their maritime boundary. Norway maintained that an equidistance line constituted an appropriate boundary, but the Russian Federation, (and the Soviet Union before it) took the position that the sector line applied. This led to an area of overlapping claims of approximately 175,200 km2.64 Most of this area was located in the southern part of the Barents Sea. This is the most important area for fisheries and is expected to hold important hydrocarbon resources. A provisional arrangement on fisheries had been in place since 1978, and both States had agreed that pending the conclusion of a delimitation agreement they would not conduct exploration activities for hydrocarbons.65 The 2010 Agreement divides the area of overlapping claims in two equal parts of approximately 87,600 km2.66 Several academic articles have reported on the different factors and arguments relied upon by the Russian Federation as constituting special circumstances justifying a boundary differing from an equidistance line. The most extensive list of such circumstances which has been reported includes reference to coastal configuration and coastal length; geological conditions; population size; ice conditions; the Russian Federation’s fishing, shipping, other special economic interests and special strategic interests; the Gulf Stream, which creates particular environmental risks for the Russian Federation; and the existence of the Svalbard Treaty which, according to the Russian Federation,

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Treaty between Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 September 2010, 77 Law of the Sea Bulletin (2012): 24 [2010 Agreement]. A fisheries regime had already been in place since 1975. Agreement between Norway and the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry, Moscow, 11 April 1975, 983 U.N.T.S. 7. This figure is mentioned in R.E. Fife “Le Traité du 15 Septembre 2010 entre la Norvège et la Russie relatif à la délimitation et à la coopération maritime en Mer de Barents et dans l’Océan Arctique,” Annuaire Français de Droit International 56 (2010): 399–412, at 402. Id. Id., at 407.

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entails that the Svalbard archipelago should not be given the weight normally afforded to similar islands in maritime boundary delimitation.67 The Russian Federation took the position that these special circumstances should lead to a boundary which followed the sector line as defined in its national legislation. It seems that the Russian Federation also claimed the sector line in itself a special circumstance.68 The Russian Federation maintained that it had applied the sector line in its administrative practice in such a way that it had become of special political and psychological significance.69 A recent account by Kolodkin, the head of the Russian delegation during the negotiations with Norway, indicates that in working out a final compromise respecting the southern part of the Barents Sea, which concerned the largest area of overlap and was addressed in the last stage of the negotiations, both parties departed from their original positions. Norway maintained that the area had to be divided in two and the Russian Federation considered that a larger part should be attributed to it. Both parties relied on recent practice as expressing the applicable law and in particular relied on the 2009 judgment of the International Court of Justice in the Black Sea Case.70 In order to reach a compromise, the parties agreed that the total area in dispute should be divided in half, and after a compromise on the boundary had been reached for the southern part of the Barents Sea, the Russian Federation made a concession to Norway in the northern part of the disputed area and a part of the boundary that had been provisionally agreed upon was adjusted.71 While the sector line was not the legal basis for the eventual compromise solution, it did play a significant role in achieving a compromise, just like the Norwegian position that the boundary had to be an equidistance line, for the outcome is an equal 67

P. Tresselt, “Norsk-Sovjetiske Forhandlinger om Avgrensning av Kontinentalsokler og Økonomiske Soner,” Internasjonal Politikk 2–3 (1988): 75–93, at 79–80. For other sources referring to these and other Russian arguments, see: A.G. Oude Elferink, The Law of Maritime Boundary Delimitation: A Case Study of the Russian Federation (Dordrecht: Martinus Nijhoff Publishers, 1994), at 245. 68 K. Traavik and W. Østreng, “Security and Ocean Law: Norway and the Soviet Union in the Barents Sea,” Ocean Development and International Law 4 (1977): 343–367, at 355. 69 Tresselt, supra note 67, at 80–81. 70 Kolodkin, supra note 47, at 16. See also: Fife, supra note 64, at 407; “Joint Statement on maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean,” Foreign Ministers of Norway and the Russian Federation, 27 April 2010, http://www.mid.ru/ BDOMP/Brp_4.nsf/arh/6624C0E5E72800FAC325771300208E76?OpenDocument (in Russian). Case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), [2009] I.C.J. Reports 61. 71 Kolodkin, supra note 47, at 16–17.

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division of the area bounded by these two lines. This raises the interesting question of whether the Russian Federation could have obtained the same outcome without its initial reliance on the sector line. Needless to say, this is a complex question that would require a detailed assessment of the outcome in light of the applicable law and access to the records related to the negotiations.72 Moreover, political considerations also undoubtedly played a significant role in the negotiations. For the present purposes, it is sufficient to note that a deviation of the equidistance line in favor of the Russian Federation could be justified by reference to the law for the delimitation of maritime boundaries—in particular, the configurations of the mainland coasts and the difference in length of the relevant coasts. On the other hand, if these geographical realities had indicated that the equidistance line resulted in an equitable boundary, a claim based on a sector line would in all likelihood have been much more problematic. Kolodkin in his assessment of the 2010 Agreement also touches on the significance of the sector lines of the Russian Federation for maritime delimitation. He first of all notes that the 1926 Decree and earlier legislation were only concerned with land territory. Neither the Soviet Union nor the Russian Federation ever made a formal declaration about the waters and seabed within the sector. The opinion that these sea areas belonged to the Russian Federation did not have a legal basis. According to Kolodkin, neither the Soviet Union nor the Russian Federation ever exercised effective control over the waters of the entire sector or made a claim to these waters, and no State ever recognized that they belonged to the Russian Federation.73 Kolodkin’s analysis suggests that the Russian Federation’s sector lines have no relevance for the delimitation of maritime boundaries at all. However, Kolodkin concludes his analysis on this point by noting that the Russian Federation in the Arctic has a territorial sea, EEZ and continental shelf that have been established in accordance with international law and then observes: “But they do not cover the entire ‘sector’.”74 This indicates that sector lines remain relevant to define the extent of the Russian Federation’s maritime zones where they extend up to or beyond 72

In view of the significant changes in the case law of the International Court of Justice and arbitral awards over the last couple of decades, with a much greater reliance on equidistance evident in more recent cases, it is not unlikely that the resolution of the dispute between Norway and the Russian Federation by third party dispute settlement would have had a different outcome depending on when it had been decided. 73 Kolodkin, supra note 47, at 11–12. 74 Id., at 12. Translation by the author. The Russian text reads “No oni ne perekryvaiut ves’ ‘sector’.”

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these lines. That conclusion is difficult to reconcile with Kolodkin’s earlier assessment of the significance of sector lines for determining rights over marine areas. The 2010 Agreement has drawn criticism from a number of Russian scholars along much the same lines as did the Russian submission to the CLCS in 2001. It has been argued that the Agreement has led not only to serious economic and political injury to the Russian Federation, but that it also did not respect the existing legal regime for the maritime areas that were being delimited and called into question the sector line the Russian Federation had defined in its national legislation and which had received international recognition.75 These criticisms of the 2010 Agreement also played a role during the debate within the Russian Federation’s parliament on approval for ratification of the Agreement.76 Several committees of the State Duma and the Council of the Federation noted the concern that the 2010 Agreement might negatively impact the fishing industry of the Russian Federation’s northern regions and urged that this matter be given continued attention in future bilateral cooperation with Norway.77 The Committee on Security of the State Duma proposed that during the ratification procedure a declaration of the State Duma be transmitted stating that the 2010 Agreement did not affect the application of the 1926 Decree to the remainder of the Russian polar sector and that the 2010 Agreement concerned a transfer of jurisdiction to Norway.78 The conclusion of the Committee on International Relations of the State Duma, which was the committee responsible for considering the bill for approval of ratification, expressed a different view on the relation between the 2010 Agreement and the sector line. After noting that the 2010 Agreement was in full accordance with the norms and principles of international law, it observed that the 75

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Open letter to D.A. Medvedev, President of the Russian Federation, and V.V. Putin, Primeminister of the Russian Federation, published in “Duma gotova yzakonit’ nevygodnyi dlia Rossii dogovor. Otkrytoe pis’mo ychenykh,” Argumenty Nedeli-online, 25 March 2011, http://argumenti.ru/print/politics/2011/03/98914. Information on the parliamentary approval of the bill for ratification is available at the following webpage of the State Duma of the Russian Federation, http://asozd2.duma.gov .ru/main.nsf/%28SpravkaNew%29?OpenAgent&RN=500242-5. See the conclusion of the Committee on Natural Resources, the Use of Nature and Ecology of the State Duma, Annex to the decision of the Committee of 10 March 2011 No. 155.6 and the conclusion of the Committee on Affairs of the North and Small Peoples of the Council of the Federation, 29 March 2011, available on the State Duma webpage, id. Conclusion of the Committee on Security of the State Duma. This version of the conclusion is available on the webpage of the State Duma of the Russian Federation, id., but is undated.

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Agreement resolved a long-standing dispute with Norway “without any cession of Russian areas or territory”.79 The ratification of the 2010 Agreement was approved by the Federal Assembly, and the instruments of ratification were exchanged on 7 June 2011. There is no indication that any statement along the lines suggested by the Committee on Security of the State Duma was made in that connection. The proposal of the Norwegian government to obtain approval for ratification of the 2010 Agreement also discussed the sector line. The proposal gives quite detailed information on the background of the Soviet Union’s 1926 Decree and then notes that in the 1970s the Soviet Union invoked the sector line as a maritime boundary, although the 1926 Decree itself was only concerned with land and islands.80 The explicit inclusion of this point in the proposal may have been intended to reconfirm that the sector line does not have any role to play in the delimitation of maritime zones. The proposal also sets out that the delimitation effected by the 2010 Agreement is in complete conformity with the applicable rules of international law.81 Conclusion A revised submission to the CLCS by the Russian Federation of the outer limits of its continental shelf in the Arctic Ocean is likely to be the next occasion when it will rely on sector lines to define the extent of its maritime zones in this area. As the above discussion has made clear, if sector lines are again invoked, this will not be because the Russian Federation considers that they provide the legal basis for determining the extent of maritime entitlements. 79

Conclusion of the Committee on International Relations of the State Duma. This version is available on the webpage of the State Duma of the Russian Federation, id., but is undated. Translation by the author. The Russian text reads “bez ustupki kakikh-libo rossiiskikh prostranstv ili territorii.” 80 Prop. 43 S (2010–2011) Proposisjon til Stortinget (forslag til stortingsvedtak) (Proposal to the Storting (Proposal for a decision by the Storting)), 2, http://www.regjeringen.no/ pages/14629599/PDFS/PRP201020110043000DDDPDFS.pdf. 81 See id., 5–6. The Committee on Foreign Affairs and Defense of the Norwegian Parliament in its report on the approval of ratification of the 2010 Agreement also goes to some length to explain that the delimitation is in full conformity with the modern international law of the sea. See Innst. 182 S (2010–2011) and Innstilling til Stortinget fra utenriks- og forsvarskomiteen (Recommendation to the Storting by the Committee for Foreign Affairs and Defense); Prop. 43 S (2010–2011), at 3 and 6, http://www.stortinget.no/Global/pdf/ Innstillinger/Stortinget/2010-2011/inns-201011-182.pdf.

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The Russian Federation has always based itself on the existing international law of the sea as reflected in the 1958 Convention on the Continental Shelf and, more recently, the LOS Convention to define the extent of its continental shelf and EEZ. Where these zones extend up to sector lines, these lines have been claimed as the boundary in relation to neighboring States. The Russian Federation has concluded maritime delimitation agreements with two of its Arctic neighbors. In both instances the Russian Federation’s position, apart from relying on sector lines, was also based on other legal arguments. In the case of the United States, the sector line was not explicitly invoked because the United States proposed employing the line contained in the 1867 Convention on the Cession of Alaska as a maritime boundary and the then Soviet Union agreed to this proposal. In the negotiations with Norway, the Russian Federation framed its legal arguments using concepts of maritime delimitation law as developed by the International Court of Justice and other tribunals. Recent Russian scholarship advocating reliance on sector lines in defining the extent of the Russian Federation’s maritime zones in the Arctic vividly illustrates the shortcomings of such an approach. Without the support of maritime delimitation law, reliance on sector lines degenerates into pure apology that is completely divorced from legal realities. If the location of the outer limits of the continental shelf of the Russian Federation, Canada and Denmark/ Greenland results in overlapping entitlements, it will be interesting to see how the Russian Federation will approach the delimitation of the continental shelf with those two neighbors. The outcome may be boundaries that in part coincide with sector lines, but it seems likely that to attain such a result, the Russian Federation would once again also have to base its legal arguments on established concepts of maritime delimitation law. At this point let me briefly revert to the title of this contribution. There probably is little cost involved for the Russian Federation maintaining an argument based on sector lines alongside other arguments that do have a basis in international law in negotiating continental shelf boundaries with neighboring States. An outright rejection of the sector principle in this connection would only lead to further internal criticism, although Kolodkin’s review of the 2010 Agreement suggests there is only a weak adherence to the sector principle on the part of the Russian Federation. In sum, in view of the significant time needed to implement article 76 of the LOS Convention and to conduct bilateral negotiations on continental shelf boundaries, if they prove necessary, with Canada and Denmark/Greenland, sector lines are likely to continue to hover on the Arctic horizon for a long time.

chapter 15

Uncovered and Unstable Coasts

Climate Change and Territorial Sea Baselines in the Arctic Clive Schofield and Blanche Sas*

Introduction Evidence that the Arctic region is experiencing profound changes to its ecosystem is overwhelming.1 The on-going transformations of the Arctic environment have to an extent been symbolized by the dramatic reductions in the summer extent and thickness of Arctic sea ice in recent years (see below) – a development that has led to speculation over potential threats2 and opportunities associated with a dramatically changing Arctic ecosystem and enhanced access to Arctic lands and waters.3 Changes in the Arctic have by no means been confined to the loss of sea ice. This contribution focuses on the impacts of a warming Arctic on its coastlines and, by extension, on the maritime claims and boundaries of the Arctic coastal States. Where once Arctic shorelines were predominantly ice covered for much if not all of the year, this is no longer the case. The exposure of Arctic coasts, coupled with the impacts of the warming of air, land and sea, enhanced wave action and storm activity, and compounded by sea level rise, is leading to * Professor Clive Schofield is Director of Research and ARC Future Fellow at the Australian National Centre for Ocean Resources & Security (ANCORS), University of Wollongong (UOW), Australia. He is also the Leader of the Sustaining Coastal and Marine Zones research theme within the UOW Global Challenges Program. Blanche Sas is an Energy Consultant, UK. 1 See, for example: Arctic Climate Impact Assessment: Impacts of a Warming Arctic (Cambridge: Cambridge University Press, 2004) and the 2009 Arctic Monitoring and Assessment Program (AMAP), “Update on Selected Climate Issues of Concern,” (Oslo, 2009) 7, at http://www .amap.no. 2 The myriad of marine environmental threats are summarized in Arctic Climate Impact Assessment, id. On the issue of national security and geopolitical issues including the possible remilitarization of the Arctic, see: Rob Huebert, “Cooperation or Conflict in the Arctic,” in Changes in the Arctic Environment and the Law of the Sea, eds. Myron H. Nordquist, Tomas H. Heidar and John Norton Moore (Leiden/Boston: Martinus Nijhoff Publishing, 2010), 27–60. 3 On increased Arctic navigation, see: Arctic Council, Arctic Marine Shipping Assessment 2009 Report (2009), at http://www.pame.isz/amsa-2009-report. On the estimated potentially exploitable natural resources, see: United States Geological Survey, “The Circum-Arctic Resource Appraisal, 2008,” at http://pubs.usgs.gov/fs/2007/3049/FS2008-3049.pdf.

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significant coastal erosion. Additionally, hitherto stable ice features such as glaciers, ice tongues and ice shelves along the Arctic littoral have experienced substantial retreat, as discussed below. While these developments clearly have profound implications for Arctic communities and infrastructure which are overwhelmingly oriented towards the coast, there arise also significant legal and maritime jurisdictional issues. The primary focus of this contribution is the implications of these changes for Arctic territorial sea baselines. This is significant because such baselines are fundamental to the measurement of national claims to maritime jurisdiction on the part of all the Arctic coastal States. Shifts in the location of territorial sea baselines have the potential to impact on the spatial extent of national maritime claims and associated maritime jurisdictional rights and responsibilities, as well as potentially having implications with respect to the delimitation of maritime boundaries in the Arctic. The chapter will first outline the importance of baselines and the types of baselines used by the Arctic States. A brief overview of on-going environmental and geophysical changes in the Arctic is then provided with a view to highlighting the implications for Arctic coasts and baselines. This provides the backdrop for consideration of the baseline practice of the Arctic coastal States, the international legal issues respecting baselines arising from the changing environment, and possible mechanisms to address the identified challenges.

Baselines, Maritime Claims and Boundaries

The interface between the land and sea is provided by a coastal State’s baselines. In the first place baselines represent the outer edge or maximum extent of a State’s land territory4 or a State’s internal waters.5 Baselines are also of fundamental importance to coastal State claims to maritime jurisdiction as they provide the starting line from which claimed zones are measured.6 While such baselines are traditionally termed territorial sea baselines, they are fundamental to the determination of the extent of all zones of maritime 4 Where low-water line (normal) baselines are used. 5 Where straight baselines and closing lines are applied, internal waters exist landward of the defined baseline. Where a closing line is drawn to enclose a historic bay or other historic waters, historic internal waters exist landward of that baseline. 6 For a recent appraisal, see: Clive Schofield, “Departures from the Coast: Trends in the Application of Territorial Sea Baselines under the Law of the Sea Convention,” International Journal of Marine and Coastal Law 27 (2012): 723–732.

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jurisdiction. In accordance with the 1982 United Nations Convention on the Law of the Sea (LOS Convention),7 the limits of the territorial sea, contiguous zone and exclusive economic zone (EEZ) are all defined by reference to distances, of 12, 24 and 200 nautical miles respectively, measured from such baselines.8 Although the definition of the outer limits of the continental shelf where it extends seawards of the 200 nautical mile limit of the EEZ represents a significantly more complex proposition, nonetheless distance measurements from baselines, especially of 200 and 350 nautical miles breadth, remain important considerations.9 That said, it is important to acknowledge that not all of the baselines of a coastal State necessarily contribute towards the construction of the outer limits of its maritime claims. While in theory the entirety of a baseline may contribute to the construction of the outer limit of maritime claims, in practice this does not occur. This is a function of the definition of maritime limits through the envelope of arcs method.10 That is, arcs of a given breadth – 12 nautical miles for territorial sea limits or 200 nautical miles for EEZ limits for instance – are constructed from the most salient, seaward points (termed basepoints), often located on headlands or promontories, along the baseline and the outermost portions of these arcs are taken to be the outer limit of the given zone of maritime jurisdiction.11 Consequently, only certain basepoints along normal baselines will be relevant or will contribute to the determination of the outer limits of maritime zones. Similarly, while the entirety of defined straight baselines are potentially relevant to the definition of the seaward extent 7 8

U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397. Id., articles 3 and 4 with respect to the territorial sea, article 33 concerning the contiguous zone and article 57 regarding the EEZ. 9 Id., article 76 sets out a series of complex criteria whereby the outer limit of the continental shelf may be established by reference to geological factors, distance measurements from the foot of the continental slope as well as from the 2,500  m depth isobath. Definition of the 200 and 350 nautical mile limits measured from baselines are, however, still important. See generally: Peter J. Cook and Chris M. Carleton, eds., Continental Shelf Limits: The Scientific and Legal Interface (Oxford: Oxford University Press, 2000). 10 See generally: International Hydrographic Organization (with the International Oceanographic Commission and the International Association of Geodesy), A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982, Special Publication No. 51, 4th edition (Monaco: International Hydrographic Bureau, 2006), Chapter 5, at 5–6. 11 Id. See also: Chris Carleton and Clive Schofield, Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, Maritime Briefing 3, No.3, (Durham: International Boundaries Research Unit, 2001), at 62.

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of maritime zones, in practice only certain segments or points along the constructed straight baselines are likely to contribute to the outer limit in question. The implication is that from the perspective of generating the maximum area of maritime claims, certain points along the baseline, often termed critical basepoints, are more important than others. Baselines are also frequently crucial to the delimitation of bilateral maritime boundaries. This stems from the preference for maritime boundaries based on equidistance. This is evident from State practice where the vast majority of agreed boundaries have been based on this method of constructing a delimitation line.12 Moreover, in recent maritime delimitation cases before international courts and tribunals, a three-stage approach has been adopted.13 This has involved the construction of a provisional delimitation line on the basis of equidistance at the first stage then, at the second stage, consideration of whether any factors exist that should lead to an adjustment of the provisional line in the interests of achieving an equitable result, with a disproportionality test or checking procedure taking place at the third stage. An equidistance (or median) line can be defined as a line “every point of which is equidistant from the nearest points on the baselines.”14 The location of the baselines of the coastal States involved, or, more specifically, critical basepoints along those baselines, inevitably has a direct bearing on the construction of a geodetically robust and accurate equidistance line.15 12

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For example, with respect to delimitations between opposite coastal States it has been estimated that 89 per cent of agreements concluded were based on some form of equidistance. The figure drops to 38 per cent when adjacent State delimitations are considered. See: Blair Hankey and Leonard Legault, “Method, Oppositeness and Adjacency, and Proportionality in Maritime Boundary Delimitation,” in International Maritime Boundaries, eds. Jonathan I. Charney and Lewis M. Alexander (The Hague: Martinus Nijhoff, 1993): 203, at 214. See also: J.R. Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World (Leiden/Boston: Martinus Nijhoff Publishers, 2005), at 238–239. This approach was fully articulated by the International Court of Justice in the Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), [2009] I.C.J. Reports 61, at 101–103, paras. 115–122 and subsequently adopted by the International Tribunal on the Law of the Sea (ITLOS) in the Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/ Myanmar), 14 March 2012, on the ITLOS website at http://www.itlos.org. The approach was also followed in the International Court decision Territorial and Maritime Dispute (Nicaragua v. Colombia), 19 November 2012, on the International Court of Justice website at http://www.icj-cij.org. LOS Convention, supra note 7, article 15. See: Carleton and Schofield, supra note 11, at 62; Chris Carleton and Clive Schofield, Developments in the Technical Determination of Maritime Space: Delimitation, Dispute

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Baselines therefore have a direct influence on the definition of the scope of national claims to maritime jurisdiction and are consequently critical in the establishment of coastal State jurisdictional rights over maritime space. This is particularly significant from the point of view of establishing rights over and access to valuable marine and natural resources, as well as having potential implications in relation to the management of the marine environment within national jurisdiction and in relation to the activities of other States within the maritime zones of coastal States, such as navigation. This, in turn, has implications for maritime enforcement activities. Thus, given the projected level of interest in accessing the natural resources in the Arctic (seabed hydrocarbon reserves),16 the vulnerability of the marine environment of the Arctic,17 the security issues in the Arctic18 and the potential commercial opportunity of the opening up of Arctic straits,19 the importance of littoral State jurisdiction cannot be over-stated. The international legal rules concerning the construction of baselines were largely codified in the 1958 Convention on the Territorial Sea and Contiguous Zone20 and subsequently adopted and adapted in the LOS Convention. In the absence of other claims, a coastal State will have ‘normal’ baselines coincident with the low-water line along the coast. However, there are several types of straight line baselines that may be drawn as an alternative to normal baselines.

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Resolution, Geographical Information Systems and the Role of the Technical Expert, Maritime Briefing 3, No. 4, (Durham: International Boundaries Research Unit, 2002), at 7–20; and TALOS Manual, supra note 10, Chapter 6, at 3–6. A very useful summary with illustrations of how international bilateral offshore boundaries are drawn is also provided in Bruce Caldebank, Alec M. MacLeod, Ted L. McDorman and David H. Gray, Canada’s Offshore: Jurisdiction, Rights and Management (Association of Canada Lands Surveyors (ACLS)/Trafford Publishing, 2006), 97–100. According to the 2008 U.S. Geological Survey Report, supra note 3, an estimated 90 billion barrels of oil and 1,669 trillion cubic feet of gas is to be found in the Arctic region. This assessment is based on a ‘probabilistic’ methodology, nonetheless, it is indicative of the likely level of interest in Arctic oil and gas exploration in the future. See: the International Panel on Climate Change (IPCC) Assessments Reports available on the IPCC website at http://www.ipcc.ch/. For example, in May 2009, the Russia Federation published a security strategy identifying the Arctic as an area of potential conflict. See: David Fairhall, Cold Front, Conflict Ahead in Arctic Waters (New York: Counterpoint, 2010), at 55. On topics relating to this issue, see: Panels III and IV, in Nordquist, et al., supra note 2, 157–318. Convention on the Territorial Sea and Contiguous Zone, 29 April 1958, 516 U.N.T.S. 205, articles 3–4, 7–8 and 13.

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These include straight baselines,21 river closing lines,22 bay closing lines,23 the use of the outermost permanent harbor works of ports,24 and in respect of archipelagic States, archipelagic baselines.25 The two principal types of baselines in use in the Arctic context, highlighted below, are normal baselines consistent with low-water lines along the coast and straight baselines, use of which on the part of the Arctic coastal States will be analysed below. ‘Normal’ Baselines In accordance with article 5 of the LOS Convention, normal baselines consist of “the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.”26 Article 5 offers no further clarification as to which of the many low-water lines that intersect with the coast is preferable. This issue is to be decided by the coastal State and is essentially determined by the choice of vertical datum, which is the level of reference for vertical measurements such as depths and heights of tide as illustrated on nautical charting, including charting in the Arctic. In practice, charting authorities tend to opt for a conservative or low vertical datum as a result of safety of navigation considerations.27 A key issue in this context is the long-standing recognition that coasts are dynamic and susceptible to change over time. Coastlines often change in a cyclical manner alternately shifting seawards through deposition or accretion of material and then landwards as a consequence of erosion.28 As a result, lowwater line based normal baselines will also shift location or ambulate.29 Such changes in the location of the normal baseline dictates that the outer limits of the maritime zones dependent upon them will also shift, impacting on the 21 22 23 24 25 26 27 28

29

LOS Convention, supra note 7, article 7. Id., article 9. Id., article 10. Id., article 11. Id., article 47. This represents a near verbatim repetition of the Territorial Sea and Contiguous Zone Convention, supra note 20, article 3. TALOS Manual, supra note 10, at Chapter 2. See, for example, Bill Hirst and David Robertson, “Geographic Information Systems, Charts and UNCLOS – Can They Live Together?,” Maritime Studies, 136 (May-June 2004): 1–6. See also: Clive Schofield, “Shifting Limits? Sea Level Rise and Options to Secure Maritime Jurisdictional Claims,” Carbon and Climate Law Review 3 (2009): 405–416, at 408–409. Michael W. Reed, Shore and Sea Boundaries: The Development of International Maritime Boundary Principles Through United States Practice, Vol. 3 (Washington, U.S. Department of Commerce, 2000), at 185 and Prescott and Schofield, supra note 12, at 100–101.

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spatial scope of maritime claims. This is potentially very significant with respect to the maritime jurisdictional claims of Arctic States whose maritime claims are frequently dependent on the location of the low-water line along the coast – low-water lines that, moreover, are susceptible to rapid and radical on-going changes to an extent not witnessed elsewhere. Straight Baselines The other main type of baselines in use by the Arctic coastal States is straight baselines. In accordance with article 7 of the LOS Convention, straight baselines can be used where certain geographical circumstances exist along selected parts of their coastlines. Pursuant to article 7, paragraph 1, straight baselines may be applied in localities “where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.” This represents the key paragraph of the article – applying when straight baselines are permitted either as a result of the presence of a deeply indented or cut into coastline or a fringe of islands along the relevant coast. The remainder of article 7 can be viewed as being dependent on this first paragraph, providing guidance on how straight baselines are to be defined but not in itself offering justifications for their construction. For example, article 7, paragraph 2 allows the drawing of straight baselines “where because of the presence of a delta and other natural conditions, the coastline is highly unstable.” (See further below.) While this provision would appear to raise the possibility of providing an alternative to article 7, paragraph 1 and, therefore, a separate justification for the construction of straight baselines, the report of the U.N. Group of Technical Experts on Baselines noted unequivocally that “this paragraph is subordinate to paragraph 1, and is not an alternative to it” such that “for paragraph 2 to apply the coastline of the delta must satisfy the conditions set out in paragraph 1.”30 This issue will be analysed in greater detail below in the context of eroding coasts. Article 7, paragraph 3 provides that “[t]he drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently linked to the land domain to be subject to the regime of internal waters.”31 Article 7, paragraph 4 also stipulates that straight baselines 30

31

United Nations, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (New York, 1989), at 24. This view was reached on the basis that LOS Convention, supra note 7, article 7, paragraph 2 was originally “conceived as part of paragraph 1” of the same article, that it “appeared in that form in the Informal Single Negotiating Text” and that while it appeared as a separate paragraph in the Revised Informal Negotiating Text it did so “without severing its link with paragraph 1.” Id., endnote 9, at 41. See: Prescott and Schofield, supra note 12, at 154–156.

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“shall not be drawn to and from low-tide elevations unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition.” Furthermore, article 7, paragraph 5 allows for account to be taken of “economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.” However, as noted above, this provision in isolation does not justify the drawing of straight baselines in the absence of a deeply indented or cut into coastline or the existence of a fringe of islands along the coast. Finally, article 7, paragraph 6 states that a system of straight baselines may not be applied by a coastal State “in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone.”32 The provisions of article 7 of the LOS Convention gives rise to several queries, as definitions for the key terms are not provided.33 In particular, it is unclear: how many and how deep the indentations need to be to constitute a ‘deeply indented and cut into’ coastline; how many and how close the islands need to be to one another in order to form a ‘fringe’ of islands; and how far offshore such a fringe of islands may be and still fulfil the requirement that it be in the ‘immediate vicinity’ of the coast. Moreover, what is meant by the term ‘highly unstable’ and by what means is the ‘general direction’ of the coastline to be determined and what angle represents divergence to an ‘appreciable extent’ from that direction? Article 7 similarly fails to provide any specific rule for determining whether the sea area enclosed by a particular straight baseline system is “sufficiently closely linked to the land to be considered subject to the regime of internal waters” and is also silent with respect to how economic interests peculiar to a particular region are to be assessed or what period of time equates to ‘long-usage’ of such areas by the coastal State. Straight baselines under article 7 have been interpreted by the aforementioned U.N. Group of Technical Experts 34 and examined by the International Court of Justice in numerous judgements since the Anglo-Norwegian Fisheries Case in 1951.35 The United States in particular has been a keen advocate of a conservative or restrictive interpretation of article 7, even going so far as to 32 33

For a more detailed discussion of these issues, see: id., at 142–159. Case law does not provide assistance with these terms and concepts, nor does authoratative writings, such as George Walker, ed., Definitions for the Law of the Sea, Terms Not Defined by the 1982 Convention (Leiden: Martinus Nijhoff, 2012). 34 U.N., Baselines, supra note 30. 35 Fisheries Jurisdiction (United Kingdom v Norway), [1951], I.C.J. Reports 116.

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publish its own guidelines on the application of article 7 of the LOS Convention.36 As the terms of article 7 are ambiguous and open to interpretation, it is difficult to assert with absolute confidence that a particular system of straight baselines is necessarily excessive. As Prescott aptly observed, “the imprecise language [of article 7] would allow any coastal country, anywhere in the world, to draw straight baselines along its coast.”37 Nonetheless, support for the more conservative view can be found in the decision of the International Court in the Qatar/Bahrain Case, which stated unequivocally that the method of straight baselines in accordance with article 7 of the LOS Convention “must be applied restrictively.”38 Many straight baseline claims may be deemed excessive when assessed against such a conservative or restrictive interpretation of the relevant international law of the sea rules.39

Changing Arctic, Changing Coasts

As Pharand presciently observed in 1973, in order to properly analyse a legal regime it is helpful, in fact essential, that the physical reality to which that regime applies be studied.40 In keeping with this approach, this section 36

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U.S. Department of State, “Developing Standard Guidelines for Evaluating Straight Baselines,” Limits in the Seas, No.106 (Washington, D.C.: Bureau of Oceans and International Environmental and Scientific Affairs, 31 August 1987). The objective of the U.S. study was to suggest standard guidelines in order to allow a “reasoned evaluation” of straight baseline systems being claimed and making it possible to identify “with a certain degree of confidence” those straight baseline systems conforming to international law and those which do not. The study states that the guidelines “do not have international standing as benchmarks against which all such systems should be measured,” and were not offered as “unequivocal yardsticks of the legality of straight baseline systems.” See, id., at 2. Nonetheless, the U.S. guidelines are a useful, if arguably conservative, interpretation of the application of article 7 of the LOS Convention. See also: J. Ashley Roach and Robert W. Smith, “Straight Baselines: The Need for a Universally Applied Norm,” International Journal of Marine and Coastal Law 31 (2000): 47–80. J.R. Victor Prescott, The Maritime Political Boundaries of the World (London: Methuen, 1985): 64. See also: Prescott and Schofield, supra note 12, at 162–164 and Schofield, supra note 6, at 52–54. Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) (Merits) [2001] I.C.J. Reports 40, at 103, para. 212. See: J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, 3rd edition, (Leiden/ Boston: Martinus Nijhoff Publishers, 2012), at 57–133. Donat Pharand, The Law of the Sea of the Arctic: with Special Reference to Canada (Ottawa: University of Ottawa Press, 1973), at 180: “A brief investigation into the physical .

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provides an overview of the environmental and geophysical changes being experienced in the Arctic with particular reference to the factors and processes impacting on Arctic coasts. It does not attempt to provide an exhaustive treatment of these issues. It is now well established that the Arctic region is undergoing significant environmental changes, notably in terms of the warming of both the Arctic atmosphere and waters. The 2004 Arctic Climate Impact Assessment (ACIA)41 and the more recent 2009 Arctic Monitoring and Assessment Program (AMAP) Update42 conclude that the Arctic air, land and waters are all continuing to warm and, indeed, overall the Arctic climate is doing so at almost twice the global average rate in recent decades.43 The ACIA and AMAP Update also highlight the sensitivity of the Arctic to such changes. The ACIA suggested significant regional temperature rises over the period 1990 to 2090 with projected annual temperature rises estimated at up to 4 °C overall with greater warming experienced in winter on the order of 5 °C over land and between 7 and 10 °C over the Arctic Ocean and coasts.44 The AMAP Update suggests that observed Arctic air temperatures have outstripped these predictions and are continually higher than twentieth century averages.45 The changes underway in the Arctic are numerous and multifaceted. Arguably the most obviously dramatic changes that have occurred in recent years have been with respect to Arctic sea ice coverage. In the summer of 2012, sea ice extent in the Arctic Ocean fell to the lowest level in recent record: 3.41 million km2 (1.32 million mi2).46 This figure is fully 50% lower than the 1979– 2000 average of 6.74 million km2.47

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characteristics of the Arctic ice shelves must be carried out before attempting to determine the legal consequences” (emphasis added). Arctic Climate Impact Assessment, supra note 1. AMAP Update, supra note 1. Id., at 8. Arctic Climate Impact Assessment, supra note 1, at 993. AMAP Update, supra note 1, Selected Climate Issues, 2. National Snow and Ice Data Center (NSIDC), “Arctic sea ice extent settles at record seasonal minimum,” NSIDC Press Release, 19 September 2012, at http://nsidc.org/ arcticseaicenews/2012/09/arctic-sea-ice-extent-settles-at-record-seasonal-minimum/. It should be noted, however, that the satellite record is of relatively limited duration, stretching back a little over three decades (from 1979). There exists the possibility that long-term cyclical changes are also a factor in the changes observed. Id.

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This record low level of Arctic sea ice extent is consistent with observations over the previous five northern summers (as well as 2013).48 While the most spectacular declines in summer sea ice extent have been evident in the last five years, these changes appear to be symptomatic of what has been termed a “long-term downward trend” in Arctic sea ice cover.49 A key factor that has been identified has been the later initiation of the Arctic freeze-up as well as an earlier start and longer duration to the Arctic melt season – now almost a month longer than it was in the 1980s.50 Additionally, Arctic sea ice thickness is in severe decline, which significantly compounds the issue of decreasing summer sea ice extent. One study identified that the mean ice thickness within the central Arctic Ocean reduced by 40% between the periods of 1958–1976 and 1993–1997 based on measurements made from submarines.51 More recent research has highlighted how satellite measurements of ice age can be used as a proxy for thickness and results have indicated considerable declines.52 Moreover the ratio of new to multi-year Arctic sea ice has also changed dramatically over the last decade with multi-year ice in rapid decline, suggesting that the nature of the Arctic Ocean as a whole is undergoing a dramatic transformation.53 These significant changes in the Arctic environment have had major impacts on Arctic coasts. In particular, Arctic coasts are now susceptible to significant erosion for several reasons. First, they are predominantly ice-rich. Permafrost, that is, perennially frozen ground, is a significant geophysical component of lands and subsoil in high latitudes, including coastal and near-shore areas.54 48

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See, for example, NSIDC, “Arctic sea ice reaches lowest extent for 2013,” 20 September 2013, Figure 2, at http://nsidc.org/arcticseaicenews/2013/09/draft-arctic-sea-ice-reaches -lowest-extent-for-2013/. Id. Thorstan Markus, Julienne Stroeve and Jeffery Miller, “Recent Changes in Arctic Sea Ice Melt Onset, Freeze Up, and Melt Season Length,” Journal of Geophysical Research 114 (2009) C12024. D.A. Rothrock, Y. Yu and G.A. Maykut, “Thinning of the Arctic Sea Ice Cover,” Geophysical Research Letters, 26, No.23, (1999): 3469–3472. Katherine Giles, Seymour Laxon and Andy Ridout “Circumpolar Thinning of Arctic Sea Ice Following the 2007 Record Ice Extent Minimum,” Geophysical Research Letters 35 (2008), L22502. See: Josefino Comiso, “Large Decadal Decline of Arctic Mutiyear Ice,” Journal of Climate 25 (2012): 1176–1193. For example, it has been suggested that permafrost occurs in approximately 24% of the exposed land surface in the Northern Hemisphere. See: United Nations Environ­ ment  Programme (UNEP), “Policy Implications of Warming Permafrost,” (2012),

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Increasing temperatures inevitably soften ice-rich coastlines, compromising their structural integrity, therefore making them especially vulnerable to slumping, subsidence and erosion.55 This represents an especially significant issue in the Arctic were it has been estimated that up to 65% of the littoral is composed of unlithified, that is non-rocky, permafrost-dominated coastlines.56 Second, as a consequence of the climate change-related developments, Arctic coasts have become exposed to erosive forces at a speed and on a scale never before experienced. The major reduction in Arctic sea ice extent in recent summers is an important factor. The melting of fast-ice (ice fastened to the coast) has removed a protective barrier that in the past shielded the coast from erosive forces for much if not all of the year.57 Thus, whereas previously Arctic coastlines had been predominantly ice-locked for much of the year and, therefore, to a large extent protected from damaging storms for instance, this is no longer the case.58 While this provides opportunities for the newly exposed Arctic coasts to be better observed and charted, it also means that they are more vulnerable to erosion meaning that new charts of Arctic coastlines are liable to become very swiftly outmoded. Further, Arctic coastlines are now increasingly exposed to open water and for extended periods of the year. This is important because this provides a ‘fetch’, that is, open water over which the wind can blow, leading to the generation of potentially large waves. Further, there is evidence that storm activity in the Arctic has increased.59 Overall Arctic coasts have in recent years been exposed to unprecedented erosive forces from increasingly violent waves and storms and for longer and longer periods of the year.60

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(Kevin Schaefer lead author), at 2, at http://www.unep.org/pdf/permafrost.pdf. The warming and breakdown of permafrost carries with it significant potential for the release of methane gas from methane hydrates presently trapped in terrestrial as well as submarine permafrost settings. See: International Arctic Science Committee, Land-Ocean Interactions in the Coastal Zone (LOICZ), Arctic Monitoring and Assessment Programme, International Permafrost Association, State of the Arctic Coast 2010: Scientific Review and Outlook (Geesthacht, Germany: LOICZ International Project Office, 2011), at 37, at http:// www.arcticcoasts.org/. See also: Hugues Lantuit, Pier Paul Overduin, Nicole Coutoure, et al., “The Arctic Coastal Dynamics Database: A New Classification Scheme and Statistics on Arctic Permafrost Coastlines,” Estuaries and Coasts 35 (2012): 383–400, at 385. Id., at 11–12. See also: State of the Arctic Coast Report, supra note 54, at 15. State of the Arctic Coast Report, supra note 54, at 32. See also: Lantuit, supra note 54, at 391. Id., at 16–19. Id., at 15–16. See also: Lantuit, supra note 54, at 383–384 and 394–396. Id., at 16. See also: NASA, “2012 Arctic Cyclone,” Visible Earth, at http://visibleearth.nasa .gov/view.php?id=78812 and Lantuit, supra note 54, at 394–395. Id., at 12–13.

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Third, erosion of Arctic coasts may in some areas be further aggravated by sea level rise which provides an elevated base level, enhancing the impact of waves and storm surges.61 However, it should be remembered that while the sea level may be rising in the Arctic, it is relative sea level rise that is critical along the coast. This phenomenon of relative sea level rise is dependent on the vertical movement of the land, for instance through isostatic rebound or glacial isostatic adjustment (GIA), which is a well-recognized and on-going factor in the Arctic context as a legacy of past glaciations.62 For example, Canada’s Hudson’s Bay region is acknowledged to be experiencing uplift at a rate of approximately 60 centimeters per century.63 Despite this apparently slow rate of rebound, this process has served as a counterbalance, leading in some areas to a relative sealevel fall and thus the exposure of considerable new areas of land along the coast.64 The retreat of Arctic ice features has also reportedly led to new islands being identified off the coast of Greenland which had been attached to the mainland by ice now melted away.65 Furthermore, gravitational factors, often termed fingerprinting, may lead to sea level rise being moderated or even reversed in proximity to major bodies of ice such as the Greenland ice sheet.66 61

62 63

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While there is broad agreement that global sea levels are rising at an order of magnitude more swiftly than in previous millennia, the rate and scale of this change are unclear. Further, the reasons underlying this phenomenon are also unclear, although it has been suggested that this difference is indicative of “a relatively recent climate signal.” See: Vivien Gornitz, “Monitoring Sea Level Changes,” Climate Change 31 (1995): 515–544, at 516. See also: Clive Schofield, “Rising Waters, Shrinking States: The Potential Impacts of Sea Level Rise on Claims to Maritime Jurisdiction,” German Yearbook of International Law 53 (2010): 189–231, at 196–200. This uncertainty arises in large part from the number of contributing factors involved. In the Arctic, changes in sea level have been attributed to a variety of factors. A study analysing 40 years of data from the Russian Arctic suggests that changes in the patterns of wind driven and thermohaline circulation may account for most of the increase of sea level in the Arctic Ocean and that their cumulative action can explain more than 80% of the sea level variability during 1950–1990. Andrey Proshutinsky, Valdimir Pavlov and Robert H. Burke, “Sea Level Rise in the Arctic Ocean,” Geophysical Research Letters 28, No. 11, (June 2001): 2237–2240. State of the Arctic Coast Report, supra note 54, at 24–27. Indeed, since the last glacial maximum around 20,000 years ago, the Hudson’s Bay region has risen by approximately 400 feet (122  m). See: “Hudson Bay,” The Canadian Encyclopaedia, at http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE &Params=A1ARTA0003881. State of the Arctic Coast Report, supra note 54, at 24–27. NASA, “Melting Ice Reveals New Island Off Greenland,” Earth Observatory, 3 June 2007, at http://earthobservatory.nasa.gov/IOTD/view.php?id=7738. Stephen Battersby, “High and Dry,” New Scientist, 4 May 2013, at 37–39. See also: State of the Arctic Coast Report, supra note 54, at 27.

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It has been estimated that on average Arctic coasts may be retreating by about half a meter per annum, but with large spatial variability,67 such that, in some areas, where coasts are rocky, coastlines are stable (e.g., Svalbard), while in others such as along the Chukchi Sea, Beaufort Sea, East Siberian Sea and Laptev Sea, erosion can be substantially higher.68 Erosion of the order of 10–30 meters per year has been reported for coasts fronting the Beaufort Sea for example.69 Consequently, vast areas of the Arctic coastline are eroding as the fast ice melts away in summer and the permafrost thaws in the coastal areas leaving them highly vulnerable to massive storm waves and winds not previously experienced.70 Tens of thousands of miles of Arctic coastline, especially in Canada and Russia, are affected.71 Coastal erosion on this scale has major implications for infrastructure and coastal communities. For example, the U.S. Army Engineer Corps estimated in 2010 that at least 178 communities in Alaska are vulnerable to erosion and their partial or full relocation is being planned.72 With regard to claims to 67

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The Arctic Coastal Dynamics Database project involved the geomorphological classification of 101,447 km of Arctic coastline in reaching this conclusion. The coastline classified represents approximately 25% of the estimated 407,608  km total length of coastline affected by the presence of permafrost in the northern hemisphere. Lantuit, supra note 54, at 383 and 390. Id., at 396. Concerning the stability of bedrock coasts, see: State of the Arctic Coast Report, supra note 54, at 37–39. State of the Arctic Coast Report, supra note 54, at 12 and Lantuit, supra note 54, at 393– 394. Concerning the Beaufort Sea in particular, see: Benjamin Jones, Catherine Puckett and Maria-Jose Vinas, “Erosion Doubles Along Part of Alaska’s Arctic Coast: Cultural and Historical Sites Lost,” 18 February 2009, U.S. Department of the Interior, U.S. Geological Survey, at http://www.usgs.gov/newsroom/article.asp?ID=2141. The authors cautioned that the observed rates of erosion might represent ‘a short term episode’ but that they might also be indicative of a future pattern of erosion in the Arctic. Colin A. Whiteman, Cold Regions Hazards and Risks (Chichester: Wiley-Blackwell, 2011), Chapter 2.6.1: Coastal Erosion, at 29–34. State of the Arctic Coast Report, supra note 54, at 12–13. See also: Lantuit, supra note 54, at 390. U.S. Environment Protection Agency (EPA), “Alaska Impacts and Adaptation,” at http:// www.epa.gov./climatechange/impacts-adaptation/alaska.html. The prospect of coastal villages in Alaska being overwhelmed by the sea has also been highlighted recently in the media. See, for example: Suzanne Goldenberg, “America’s First Climate Change Refugees,” The Guardian, 15 May 2013, at http://www.guardian.co.uk/environment/interactive/ 2013/may/13/newtok-alaska-climate-change-refugees; Stephen Sakur, “The Alaskan village set to disappear under water in a decade,” BBC News, 30 July 2013, at http://www.bbc .co.uk/news/magazine-23346370; and, Suzanne Goldenberg, “Relocation of Alaska’s

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maritime jurisdiction, normal baselines consistent with low-water lines along the coast are similarly and inevitably in the process of shifting landwards. This process is significantly accentuated by the melting of the fast sea ice along the coasts and by other factors such as sea level rise. With respect to ice features in the Arctic, several types can be distinguished and broadly categorized into continental ice and sea ice.73 Of particular concern for present purposes is continental ice which, in turn, can be sub-divided into ice sheets, ice caps, glaciers and ice shelves.74 The Arctic hosts only one ice sheet, that of Greenland, which occupies around 82% of the island with an area of approximately 1,726,000  km2.75 Additionally numerous ice caps, ice shelves or tongues and glaciers exist in the Arctic.76 The unifying factor for all of these ice features is that they have undergone very significant retreat in recent years. The breakup and loss during the twentieth century of the majority (in excess of 90%) of the formerly significant Canadian ice shelves, which were located on Ellesmere, Axel Heiberg, Devon and Baffin Islands, provides a telling example in this context.77 Annex 1 to this contribution details the very substantial melting, calving and retreats of the major ice features relevant to baseline determination in the Arctic. The problems of dramatically eroding coastlines and melting ice features used as loci for basepoints in the Arctic create legal issues, and analogous legal arguments in respect of disappearing basepoints can be made in terms of the rapidly receding Arctic coastlines as well as melting ice features, as discussed below.

73

74 75

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Sinking Newtok village halted,” The Guardian, 5 August 2013, at http://www.theguardian .com/environment/2013/aug/05/alaska-newtok-climate-change. Referring to ice derived from terrestrial freshwater sources such as rivers (continental ice) as opposed to ice formed from sea water (sea ice). Peter Wadhams, Ice in the Ocean (London: Overseas Publishers Association, 2000), at 56–57 and 140–145. See: Ralf Greve and Heinz Blatter, Dynamics of Ice Sheets and Glaciers (Berlin/Heidelberg: Springer -Verlag, 2009), at 1–3. Regarding ice sheets, see: id., at 1. Concerning the Greenland ice sheet specifically, see: Julian Dowdeswell and Michael Hambrey, Islands of the Arctic (Cambridge: Cambridge University Press, 2002), at 85. These are essentially distinguished by virtue of their size – ice caps being less than 50,000 km2 in area, with glaciers being smaller masses of continental ice generally constrained by mountainous terrain. Ice tongues originate from glacial fjiords. See: Greve and Blatter, supra note 74, at 1–2. Alex S. Gardner, et al., “Sharply Increased Mass Loss from Glaciers and Ice Caps in the Canadian Arctic Archipelago,” Nature 473, No.7347 (2011): 357–360, at http://www .nature.com/nature/journal/v473/n7347/nature10089/metrics/citations?page=2. See also: Dowdeswell and Hambrey, supra note 75, at 89–90 and State of the Arctic Coast Report, supra note 54, at 22–24.

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Baselines Practice of the Arctic States

The Arctic States and the Law of the Sea Four of the five Arctic coastal States are parties to the LOS Convention. The exception is the United States. The United States does, however, generally regard almost all of the LOS Convention as reflecting customary international law and its maritime claims and policies are pursued with the LOS Convention in mind.78 Accordingly, the Arctic littoral States, including the United States, have advanced maritime claims consistent with the terms of the LOS Con­ vention, notably to 12 nautical mile breadth territorial seas (except in respect of Greenland) and EEZs out to 200 nautical miles.79 As outlined above, such claims to maritime jurisdiction are measured from the territorial sea baselines along the coast. This section reviews the practice of the Arctic coastal States regarding their claimed systems of straight baselines for which the selection of basepoints is a key consideration, especially along ice-covered coasts. Ice-covered coasts have posed significant difficulties with respect to the definition of baselines. This has been particularly the case with respect to normal baselines coincident with low-water lines but also, on occasion, in terms of the application of straight baselines in the high Arctic, where such straight baselines need to connect to, or tie-in, with the low-water line. The challenge has related to ascertaining exactly where the land ceases and the sea begins under covering layers of ice, whether from the sea, for instance using a hydrographic survey vessel, or from above, utilizing remote sensing in the form of aerial photography or satellite imagery.80 The significant diminution of ice coverage in the Arctic has served to expose Arctic coastlines to a far greater extent than previously. This change, coupled with developments in surveying technologies, has greatly improved the ability to more accurately locate lowwater lines along formerly predominantly ice-covered coastlines, allowing both normal baselines and the turning points of straight baselines to be better 78 79

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Roach and Smith, supra note 39, at 4–5. While Denmark claims a 12 nautical mile territorial sea, a territorial sea of three nautical miles is applicable to Greenland. Additionally, Canada, Russia and the United States claim contiguous zone rights out to 24 nautical miles. Norway’s claim of a contiguous zone does not apply to Jan Mayen Island or Svalbard. The above is derived from “Table of Claims to Maritime Jurisdiction,” United Nations, Division for Ocean Affairs and the Law of the Sea, (DOALOS) at http://www.un.org/Depts/los. For the difficulties this poses legally, see: Christopher Joyner, “The Status of Ice in International Law,” in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, eds. Alex G. Oude Elferink and Donald R. Rothwell (The Hague: Martinus Nijhoff Publishers, 2001): 23–48, at 31–34.

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determined.81 However, there are some important caveats as Arctic coastlines are particularly dynamic. This means that even if coasts are resurveyed, the baselines in question may continue to change location, potentially swiftly. Moreover, there are still significant technical limitations in terms of obtaining the required detailed information82 and resurveying is costly. As a result there has been only limited resurveying of Arctic coasts. Increasing vessel traffic in Arctic waters, coupled with generally sparse, if not non-existent, search and rescue and emergency response capabilities in many areas, has highlighted the importance of the inadequate state of Arctic nautical charting.83 For example, the 2009 AMSA Report indicated that the Canadian Hydrographic Service had reported that only “10 percent of the Canadian Arctic has been surveyed to modern standards.”84 These factors have, in turn, provided an impetus for enhanced hydrographic surveying efforts, for example, through the establishment of the Arctic Regional Hydrographic Commission from 2010.85 Future technological developments and increased hydrographic surveys will be significant both in ascertaining the current position of formerly icecovered coasts, with the primary objective of ensuring safety of navigation, and in facilitating future determination of baselines and related maritime jurisdictional issues. Some of the information acquired through new remote sensing techniques, have already proved very useful in the legal analysis of the Russian Arctic coasts as noted below. Canada Canada has defined a mixed system of baselines using both normal and straight baselines around the Arctic archipelago and the Arctic mainland of Canada 81

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For example, new satellite and acoustic positioning systems, sounding methodologies, remote sensing, 3D seismic, and electronic charting, have been added to the toolbox of the hydrographer and geophysicist. For instance, remote sensing cannot readily distinguish low-tide elevations, moraines, or drying rocks/sands from sea, and grounding lines for ice shelves or caps remain difficult to ascertain. See, for example: Clive Schofield, “Cold Rush: Arctic Myths and Misconceptions,” Current Intelligence 5, No.1 (Spring 2013): 7–12, at 11. AMSA Report, supra note 3, at 158. See: International Hydrographic Organization (IHO), Arctic Regional Hydrographic Commission, at http://www.iho.int/srv1/index.php?option=com_content&view=article &id=435&Itemid=690. See also: NOAA, “Arctic Nautical Charting Plan: A Plan to Support Sustainable Marine Transport in Alaska and the Arctic Office of Coast Survey,” Marine Chart Division, 15 February 2013, at http://www.nauticalcharts.noaa.gov/mcd/docs/ Arctic_Nautical_Charting_Plan.pdf.

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under the Territorial Sea Geographic Coordinates (Area 7) Order of 1985,86 now under the 1996 Oceans Act.87 The provisions of the Oceans Act are consistent with the provisions of articles 5 and 7 of the LOS Convention dealing with normal and straight baselines respectively. The straight baselines around the Canadian Arctic archipelago defined by the 1985 Order have, however, been challenged by other States. The United States has not only protested with respect to the actual construction of the straight baselines, but also that the waters landward of them are internal waters.88 Additionally, the European Union has also protested against the legal effect of the baselines.89 However, neither protest specifically challenged the baselines on any ground relating to either the choice of basepoints, or the use of baseline coordinates located on ice formations as appropriate points in the drawing of the territorial sea baselines. Commentators have been divided as to the possibility that Canada has employed ice features in the construction of its straight baseline system. For example in 2004, Kaye stated that the baselines “…do not appear to rely upon permanent ice to define them.”90 In contrast, analyses by Franckx91 and Killas92 suggest that there are eight basepoints (numbers 68 to 75 on Ellesmere Island) in the 1985 Regulation that were (at the time of enactment of the regulation) located on the outer edges of ice shelves.93 In addition to the debate as to whether some of Canada’s basepoints were located on ice features at the time of their identification in 1985, the significant retreat of the ice shelves and the melting of the fast ice in the Arctic raises the additional question of whether they are today located on such features. A notable source of information is the maps in the 1955 Hattersley-Smith article reporting on the expeditions in 1953 and 1954 along the coast between 86 87 88 89 90

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Territorial Sea Geographic Coordinates (Area 7) Order of 10 September 1985, Canadian Gazette, Part II, of 2 October 1985, SOR/85-872. Oceans Act, S. C. 1996, c. 31, in particular, sections 4, 5 and 25(a). Roach and Smith, supra note 39, at 111. British High Commission Note, 1 July 1986, reprinted in id, at 112. Stuart B. Kaye, “Territorial Sea Baselines along Ice Covered Coasts: International Practice and Limits of the Law of the Sea,” Ocean Development and International Law 35 (2004): 75–102, at 89. E. Franckx, Maritime Claims in the Arctic, Canadian and Russian Perspectives, (Dordrecht: Martinus Nijhoff, 1993), at 98. Mark Killas, “The Legality of Canada’s Claim to the Waters of the Arctic Archipelago,” Ottawa Law Review 19 (1987): 95–136, at 128. Id.,: basepoints: 68 – Cape Alert; 69 – Cape Bicknor; 70 – Cape Fanshawe Martin; 71 Cape Richards; 72 – Cape Discovery; 73 – Ward Hunt Ice Island; 74 – Cape Nares; and 75 – Cape Aldrich.

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Cape Aldrich and Alert Point.94 An examination of the basepoints mentioned above against the sketch maps prepared by Hattersley-Smith of the coastline of northern Ellesmere Island in 1953, in particular Hattersley-Smith Map 2,95 and from other information contained in the Hattersley-Smith article suggests that the named locations matching the basepoints appear to be prominent land sites.96 Although it would appear that all of the 1985 basepoints relate to land locations, it is not possible, with the scale and detail of the Hattersley-Smith maps, the 2011 MODIS satellite image of the Ellesmere Island ice shelves,97 charts 7052 (Ellesmere Island) and 7954 of the Canadian Hydrographic Service (CHS),98 and other information available to the authors, to discern with a high degree of certainty whether or not in 1985 these positions would have been located on the land formations, or, in some cases, on an abutting ice shelf, ice rise or fast ice, or another type of feature. Nonetheless, it does appear from the HattersleySmith Map 2 that at least some of the basepoints were, in 1985, highly likely to have been located on land, such as Point Alert, Ward Hunt Island, and Capes Fanshawe Martin, Richards and Aldrich. It is, however, much more difficult to determine the 1985 positions of the other basepoints and there is a good likelihood that they may have been located on ice. Of the basepoints that may have been close to, or on, an ice shelf, ice rise or fast ice in 1985, it appears that Capes Bicknor, Discovery and Nares are the most likely candidates. In respect to Cape Discovery, it would appear from a large-scale map of the area published in the 1972 article by Lyons, Ragle and Tamburi,99 that a point with the same coordinates as basepoint 72 was located 94 95

96 97

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G.F. Hattersley-Smith, A.P. Clary and R.L. Christie, “Northern Ellesmere Island, 1953 and 1954,” Arctic 8, No. 1 (1955): 1–36. Id., Map  1, at 4 (“Hattersley-Smith Map  1”) and, Map  2, at 32–33 (“Hattersley-Smith Map 2”) in G. Hattersley-Smith, “The Rolls on the Ellesmere Ice Shelf,” Arctic 10, No. 1 (1957): 32–44. The 1954 sub-report of R.L. Christie referred to in Hattersley-Smith, Clary and Christie, supra note 94, at 31–33. MODIS Image of Ellesmere Ice Shelves, 26 August 2011, image from the Rapid Response Project at NASA/GSFS, at http://server.carlton.ca/~dmueller/iceshelves/EllesmereIS2011 .html. Available digitally from any dealer listed by CHS. See: http://www.charts.gc.ca/dealer –depositaire/locator-localisateur-eng.asp. J.B. Lyons, Richard. H. Ragle and A.J. Tamburi, “Growth and Grounding of the Ellesmere Island Ice Rises,” Journal of Glaciology 11, No. 61 (1972): 43–52 at 44 and J.B. Lyons, S.M. Savin and A.J. Tamburi, “Basement Ice, Ward Hunt Ice Shelf, Ellesmere Island, Canada,” Journal of Glaciology 10, No. 58 (1971): 93–100.

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at that time on the ice rise of Cape Discovery rather than on the land mass of Cape Discovery. The 1985 Order fixing the coordinates at Cape Discovery (basepoint 72) identifies CHS chart 7954 dated 1974100 as its basis, and, since the 1974 chart was published shortly after the publication of the Lyons, Ragle and Tamburi article, it would seem that basepoint 72 may have been located on an ice rise. Whether one or two other basepoints might have been located on some form of abutting ice formation, either an ice shelf or fast ice, depends on the precision of the coordinates in relation to the named locations. If the coordinates were located at the bottom edge of the Capes, it may be that fast ice, or in a few cases an ice shelf, was involved, but it remains difficult to ascertain where ice and land begin and end. In order to determine such positions accurate charts for both 1985 and 2013 and further geophysical information would be required and this information is not currently available. If ice features were used as loci for basepoints, then with the massive calving of the ice shelves, the melting of the sea ice and erosion of coastline in the last 40 years, concerns arise as to where the 1985 coordinates would currently be sited, irrespective of where their original loci were located. Unfortunately, to date, there is insufficient information available to answer this question with certainty. In conclusion, all that can be said is that there may well be an issue of Canada having used ice features as basepoints for several locations in the far north. However, even if ice formations were used, the practical effects may not be significant, as it would seem that the maritime areas gained as a consequence of their use would not be large relative to the size of the maritime zones claimed and the points in question do not appear to be significant turning points along the coastline. Greenland/Denmark Danish legislation relating to baselines on behalf of Greenland was first promulgated in 1963 and then apparently revised in 1976 and 1980, though not without some uncertainties arising. Denmark’s baselines as a whole were, however, revised and harmonized in 2004. The Danish Royal Decree No. 191 of 27 May 1963 established the basepoints and baselines for a three nautical mile territorial sea for Greenland.101

100 Territorial Sea Order, supra note 86, Table C 1.T37, Schedule 1, subsection 4(1), Area 7. 101 Danish Royal Ordinance No. 191 of 27 May 1963, available on the DOALOS website, supra note 79.

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In 1976102 and 1980,103 Denmark proclaimed what might be termed rather liberal straight baselines, some segments were as long as 80 nautical miles, for the determination of the EEZ pertaining to Greenland. Neither of the two instruments makes any reference to the 1963 Decree, nor does Denmark’s primary legislation, the Fishing Territory of the Kingdom of Denmark Act of 1976.104 However, it seems that, by implication, the 1963 baselines were changed by the 1976 and 1980 Executive Orders. By Act No. 411 (On the Exclusive Economic Zone of the Kingdom of Denmark) of 22 May 1996,105 which came into force in 2004, Denmark defined its EEZ. The baselines/basepoints to be used for defining the EEZ of Greenland are in section  1 of the Executive Order on the Exclusive Economic Zone of Greenland No.1020 of the 20 October 2004,106 those used for the territorial sea are in the Royal Decree on Amendment of the 1963 Royal Decree on Delimitation of the Territorial Waters of Greenland, No. 1004 of 15 October 2004.107 The basepoints and baselines for the territorial sea of Greenland are defined in section 1 of the 2004 Royal Decree,108 which replaced the basepoints set out in section 2 of the 1963 Decree. The 20 October 2004 Executive Order109 expressly annulled the 1976 and 1980 Executive Orders. Thus, the basepoints and baselines used for the EEZ and territorial sea of Greenland are now the same. However, although Denmark extended its territorial sea breadth to 12 nautical miles in 1999,110 the breadth of Greenland’s territorial sea remains at three nautical miles.111 102 Denmark, Executive Order No. 629 (22 December 1976), id. 103 Denmark, Executive Order No. 176 (14 May 1980), id. 104 Fishing Territory of the Kingdom of Denmark Act of 1976, Act No. 597 of 17 December 1976, id. 105 Act No. 411 (On the Exclusive Economic Zone of the Kingdom of Denmark) of 22 May 1996, id. 106 Denmark Executive Order on the Exclusive Economic Zone of Greenland, 20 October 2004, Law of the Sea Bulletin, 56 (2004), 133. 107 Denmark Royal Decree on the Amendment of Royal Decree, No. 191, on the Delimitation of the Territorial Waters of Greenland, No. 1004, 15 October 2004, Law of the Sea Bulletin, 56 (2004), 126. 108 Id. 109 Executive Order on the Exclusive Economic Zone of Greenland, supra note 106. 110 Denmark, Act No. 200 of 7 April 1999 on the Delimitation of the Territorial Sea, available on the DOALOS website, supra note 79. 111 CIA, World Factbook, Maritime Claims, as of 11 June 2013, at http://www.cia.gov/library/ publications/the-world-factbook/fields/2016.html and Robin Churchill, “Claims to Maritime Zones in the Arctic,” in Elferink and Rothwell, supra note 80, 105–124, at 109.

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Notwithstanding the clarification of the basepoints and baselines for the marine zones of Greenland, Scovazzi commented in 2004 that no detailed academic analysis had been done of these baselines and the Greenland ice shelves and tongues to ascertain whether, and/or to what extent, they extended into the sea and to assess whether any ice features had been used as basepoints.112 This continues to be the case. The Greenland baselines have not given rise to any known protests from other countries. In a U.S. State Department’s report on what it considers to be excessive national maritime claims, no comment was made on Greenland’s straight baselines established pursuant to the 1976 or 1980 Executive Orders.113 Moreover, the International Court did not consider the validity of the baselines in the 1993 Jan Mayen Case respecting the maritime delimitation between Greenland and Jan Mayen.114 There appear to be one or two potentially controversial Greenland territorial sea basepoints. For example, the basepoint on Oodaaq, identified as basepoint number 103, is (or perhaps more accurately was) on a bank of gravel and silt off the northeast coast of Greenland. It is a potentially significant basepoint being the northernmost basepoint of Greenland, and thus a turning point of coastal direction. While discovered in 1978,115 Oodaaq was reported by an American expedition in 1996 to be ‘flooded’, with a single two foot rock three inches above the water,116 and by 2011 it seemed to have disappeared.117 Kaye noted that the 1973 Denmark (Greenland) – Canada delimitation agreement118 appeared to take into account the extension of the Petermann Glacier beyond the closing line of the fiord (basepoints 125–127).119 Satellite 112 Tullio Scovazzi, “The Baseline of the Territorial Sea: The Practice of Arctic States,” in Elferink and Rothwell, supra note 80, 69–84, at 76. 113 U.S. Department of State, “United States Responses to Excessive National Maritime Claims,” Limits in the Seas, No.112 (Washington, D.C.: Bureau of Oceans and International and Scientific Affairs, 1992), at 26. 114 Case concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark-Norway), [1993] I.C.J. Reports 38. 115 Gerald Johnson, Beyond the Edge: The Search for Ultima Thule, the Northernmost Land in Earth (Minneapolis: Bascom Hill, 2011). 116 The American Top of the World Expedition 1996, “Report,” at http://home.earthlink .net/~topofworld/island.htm. 117 Id. 118 Agreement between Denmark and Canada relating to the Delimitation of the Continental Shelf between Greenland and Canada (with annexes), 17 December 1973, 950 U.N.T.S. 147. 119 Kaye, supra note 90, at 80.

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images of the Petermann Glacier in 2012 show that the glacier has retreated behind the fiord closure line due to massive calvings in 2001 and 2008.120 Despite the fact that provision to allow for adjustments to be made to the delimitation line (relative to adjusted basepoints) was agreed to in an exchange of diplomatic notes between Canada and Denmark in April 2004,121 as allowed for under article 4 of the 1973 Agreement,122 no adjustment appears to have occurred regarding the basepoints along the Nares Strait where the Petermann Glacier is located. However, with the announced agreement-in-principle between Canada and Denmark extending the delimitation into the Lincoln Sea out to 200 nautical miles, the parties may have taken the opportunity to address the 1973 delimitation of basepoints north of 75o N.123 In respect of basepoints on eastern Greenland, Molde reported in 1982 that [o]n the coast of Greenland there is only one area where ice formations are at present of real significance for determining the breadth of the territorial sea, and this is the North-East corner (Nordostrundingen) where the part of the ice cap known as “Flade Isblink” at certain points continues into the sea hiding the outer edge of the landmass. The “coast line,” which according to Royal Ordinance No.191 of 27th May 1963 at these particular points forms the line from which the territorial sea is measured, must therefore be the edge of the ice cap…124 From an examination of NASA’s map of the 2011 flight plan over the northern glaciers of Greenland it can be seen, specifically in the white section between 120 “Iceberg twice the size of Manhattan breaks off Greenland Glacier,” CBC News, 18 July 2012, at http://www.cbc.ca/news/technology/story/2012/07/18/SCI_ap-greenland -iceberg.html. The ice island that broke off in 2010 still extends across the closure line but is no longer attached to the glacier tongue. 121 Exchange of Notes between Canada and Denmark in April 2004, Canada Treaty Series, 2009/27. 122 Canada-Denmark Agreement, supra note 118. 123 Foreign Affairs, Trade and Development Canada, “Canada and Kingdom of Denmark Reach Tentative Agreement on Lincoln Sea Boundary,” (2012), at http://www.international .gc.ca/aff/news-communiques/2012/11/28a.aspx. The announcement states: “The treaty text will also provide an opportunity to modernise the provisions set out in the 1973 treaty and to complete a process of technical adjustments to the coordinates of the existing boundary. Technical adjustments were made to the southern part of the boundary… and experts have now completed the work for the Nares Strait.” 124 Jorgen Molde, “The Status of Ice in International Law,” Nordisk Tidsskrift for International Ret 51 Fasc. 3–4, (1982): 164–178, at 166.

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80 and 82°N and east of 325°E under magnification, that the area of the Nordostrundigen headland and Flade Isblink Glacier still appear to protrude into the sea.125 It may well be that basepoint number 113, identified as Point of Nordostrundigen, involves the ice feature and is therefore not on land, but it is not possible with the data currently available to answer this question. What is known is that the Flade Isblink Glacier appears to be an exception to the general rule of the melting Arctic as it appears to be accreting significantly126 making the determination of basepoints and baselines along this area extremely difficult. However, in respect of the 1976 and 1980 baselines,127 Molde stated that these baselines had been …drawn in such a way that those ice formations which in principle could be used for determining the breadth of the fishing zones are situated within the straight baselines (all of these having been drawn without using the ice formations as basepoints)…128 As the 2004 baselines appear to follow the 1976 and 1980 baselines (rather than the 1963 ones), it follows that he would likely be of the same opinion respecting the 2004 basepoints/baselines. Reaffirming this viewpoint, a leading Danish law of the sea expert stated in 2012 that, in his opinion, “…it seems that glaciers of Greenland give little impact upon its straight baselines.”129 Kaye echoes the view that the 2004 Greenland baselines “…are rather generous in their proportions, with some segments as long as 80 miles, however they do not appear to rely upon ice as a territorial sea basepoint.”130 125 NASA, Ice Bridge Program 2011, “Northern Glaciers Flight Plan,” at http://www.nasa.gov/ mission_pages/icebridge/index.html. 126 T. Moon, I. Joughin, B.E. Smith and I.M. Howat, “21st Century Evolution of Greenland Outlet Glacier Velocities,” Science 336, No. 6081 (2012): 576–578 and I. Joughin, B.E. Smith, I.M. Howat, T. Scambos and T. Moon, “Greenland Flow Variability from Ice-sheetwide-velocity Mapping,” Journal of Glaciology 56, (2010): 415–430. Greenland has over 200 outlet glaciers but few (now possibly only one) protrude significantly beyond the fiord mouths. 127 See Executive Order No. 629, supra note 102 and Executive Order No. 176, supra note 103. See also: United States Department of Defense, Maritime Claims Reference Manual of 23 June 2005 (updated in August 2010), 2–127 and 2–132, at http://www.jag.navy.mil/ organization/documents/mcrm/MCRM.pdf. 128 Molde, supra note 124, at 165. 129 E-mail communication to the second author on 12 November 2012. 130 Kaye, supra note 90, at 84.

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On 15 June 2012, Denmark made a partial submission for Southern Greenland to the U.N. Commission on the Limits of the Continental Shelf under article 76, paragraph 8 of the LOS Convention, regarding its continental shelf outer limits beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.131 The baselines used in the submission appear to match the 2004 baselines with the result that the baselines used for identifying the 200 and 350 nautical mile limits may have been constructed using or relying on one or two basepoints once located on ice features that may, with the Arctic melting or rising waters (as in the case of Oodnaaq), now be located in the sea. Norway (Svalbard and Jan Mayen) Svalbard In 1970, Norway established a straight baseline system around the various islands of the Svalbard archipelago.132 In 1972, the U.S. State Department commented that “several of the straight baselines intersect glaciers which project seaward of the baselines” for Svalbard.133 Pharand commented in 1973 that both the Edgeoya and Nordanslandet Glacier tongues extended beyond land, and that in the case of the Nordaustlandet Glacier, the extension was significant, being 3–4 nautical miles, that is, both extended significantly beyond the then applicable baselines.134 From available data and maps, it appears that these tongues may still extend well beyond the land.135

131 Denmark, “Executive Summary – Partial Submission for Southern Greenland,” 15 June 2012, on the Commission on the Limits of the Continental Shelf website at http://www .un.org/depts/los/clcs. 132 Royal Decree of 30 June 1970 and Royal Decree of 25 September 1970. For the texts of these Decrees, see: U.S. Department of State, “Straight Baselines – Svalbard,” Limits in the Seas, No. 39 (Washington, D.C.: Bureau of Oceans and International and Scientific Affairs, 1972). 133 “Straight Baselines – Svalbard,” supra note 132, at 5. The analysis noted: “The chart’s accuracy may be of low degree which would cast doubt on the conclusion” and continued: “However, if more accurate charts show this condition to prevail, the example of Svalbard may affect future treatment of coastal, glacial tongues as ‘special circumstances’ for the measurement of the territorial sea.” 134 Pharand, supra note 40, at 188. 135 For a relatively recent map of both islands and their glaciers, see: N. Blasczczyk, J.A. Jania and J.O. Hagen, “Tidewater Glaciers of Svalbard: Recent Changes,” Polish Polar Research. 30, No. 2 (2009): 85–142, Figure  2, at 89, at http://www.polish.polar.pan.pl/ppr30/ PPR30-085.pdf.

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On 1 June 2001, a Norwegian royal decree redefined the basepoints and straight baselines for the Svalbard archipelago.136 In relation to these baselines, a leading Norwegian academic commented that …ice has not been used as basepoints for drawing the Norwegian baselines, around Svalbard, Jan Mayen or elsewhere…ice is not relevant for the purpose of establishing such basepoints.137 Nevertheless, according to the descriptions of the locations of the basepoints set out in the 2001 Norwegian royal decree,138 nine basepoints are stated as being located on ice caps or glaciers: five are on Kvitoya139 at basepoints 78 to 83 (the Kvitoya Ice Cap/Glacier); three are on Nordaustlandet140 at basepoints 159 to 161 (on the Brasvellbreen, an outlet glacier of the Vestfonna Ice Cap); and one on Edgeoya141 at basepoint 169. With currently available data, it is not possible to categorically determine whether the points used, though referring to the ice feature, are the projected land/water interface. However, based on an up-to-date topological map, it seems that due to the surge and retreat activities of the Svalbard glaciers, some of these basepoints (for example, basepoint 83), may no longer be on the glaciers, but in the sea, and also that some of the glacier tongues may have extended beyond the 2001 baselines.142 Jan Mayen In 1955, Norway established a seventeen segment straight baseline system around the island of Jan Mayen.143 On 30 August 2002, a royal decree redefined 136 The text, a list of the basepoints, and a very useful map can be found in the notification of baselines by Norway on 8 June 2001, Law of the Sea Bulletin 46 (2001), 72, at 75–79. 137 E-mail communication to the second author on 14 November 2012. 138 The Royal Decree of 1 June 2001 pursuant to the constitution of the Kingdom of Norway and Royal Decrees of 22 February 1812, available on the DOALOS website, supra note 79. 139 Kvitoya is a small north east island (only 682 km2) dominated by the Kvitoyokulen domed ice cap that covers most of the island, except for a few barren areas of snow and ice, mainly in the southwest. 140 Nordaustlandet is the second largest island of the Svalbard archipelago mostly covered by two large ice caps, Austfonna and Vestfonna. 141 Edgeoya is an uninhabited island in the southeast of the archipelago. The eastern side of the island is occupied by the large ice cap Edgeoyjokulen. Stonebreen is an outlet glacier for the ice cap, which extends into the sea and is the easternmost point of the island. 142 See the interactive topological map of the Svalbard archipelago of the Norwegian Polar Institute, at http://toposvalbard.npolar.no/?lang=en. 143 Royal Decree of 30 June 1955, Maritime Claims, supra note 127, 2–319.

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the basepoint coordinates to draw the straight baselines for the territorial sea of Jan Mayen.144 Unlike in the case of Svalbard, no basepoint is explicitly identified as being on a glacier or ice cap. In Arctic climate terms, Jan Mayen experiences relatively mild winters and cold summers. As a result, the coast becomes ice free during certain periods of the year except at the tidewater glacier faces and where the ice cap meets the sea. From the available maps, it appears that the outlet glaciers of the Beerenberg Ice Cap terminate at the coast, protruding only marginally into the sea.145 Eruptions of the Beerenberg volcano in 1970 and 1985 led to the physical enlargement of the land surface of Jan Mayen due to lava flows into the sea,146 but this accretion appears to have been reflected in the 2002 baselines. According to a leading expert, none of the 2002 baselines appears to use ice features as basepoints, and no ice shelf/tongue apparently extends beyond the baseline.147 However, it may be that the Beerenberg Ice Cap is an exception, but a definitive assessment of the relevant basepoints cannot be undertaken on the basis of the data available to the authors. Thus, just like the northern Arctic basepoints of Canada and Denmark/ Greenland, a question mark exists regarding the location of one or two basepoints used in the delimitation of the territorial sea of Svalbard and Jan Mayen. Russia Russia declared a comprehensive baseline system for its Arctic coast and islands in 1985,148 employing a mixture of normal and straight baselines, with straight baselines around much of Novaya Zemlaya, Severnaya Zemlaya, and the Novosibirsk Islands. In 1998, the Act on the Internal Maritime Waters, Territorial Sea and Contiguous Zone of the Russian Federation defined the breadth of the territorial sea as being 12 nautical miles and determined how the baselines, from which that breadth was to be measured, were to be drawn.149 The Act follows the approach set out in the LOS Convention, which Russia had ratified in March 1997. Article 4.2 of the 1998 Act states that the government is to approve a list of the coordinates for the various basepoints and these are to be published in the Notices to Mariners. However, no new 144 Regulations relating to the Limit of the Norwegian Territorial Sea around Jan Mayen, Royal Decree 30 August 2002, Law of the Sea Bulletin 50 (2002), 22–23. 145 See the interactive topological map of the Norwegian Polar Institute, at http://www .topojanmayen.npolar.no/?land=en. 146 See map at: http://www.jan-mayen.no/geology/beerenb.gif. 147 See, Scovazzi, supra note 112, at 75. 148 Russian Federation Decree 4450, 15 January 1985, on the DOALOS website, supra note 79. 149 Act on the Internal Maritime Waters, Territorial Sea and Contiguous Zone of the Russian Federation, 17 July 1998, on the DOALOS website, supra note 79.

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coordinates have been publicized, with the result that the baselines in the 1985 Decree are still applicable.150 Brubaker has argued that some basepoints in the 1985 Decree may be at sea, but, other than basepoint 349 on Zemlya Bunge (Novosibirsk Islands), does not identify which ones.151 His assertion in respect of Zemlya Bunge, however, is open to question. It is dubious that the formation (whether it is the locus of basepoint 349 or any location on Zemlya Bunge) is on a glacier. Zemlya Bunge covers an area of 6,200 km2 of flat low-lying barren intermediate plain connecting Kotelny Island to the Faddeyevsky Peninsula (or Island) that rises an average of only eight meters above sea level, and is therefore frequently submerged for over 80% of its total surface.152 The highest point is 22 m above sea level. It has a very harsh Arctic climate. Its surface is mainly covered in snow and ice in the winter and sand and typical tundra plants when the temperature briefly rises above freezing between June and October.153 Thus, it is highly unlikely that basepoint 349 is, or ever was, on an ice formation. According to Kaye,154 there are two further Russian territorial sea basepoints on ice features both located on Severnaya Zemlya (basepoints 218 and 219).155 The 1985 Decree identifies them as the western and eastern extremities of the Polyarny Glacier.156 Kaye commented that, although the basepoints appear to be located near the Arctic Cape, “a search for information on the current state of this formation failed to locate a feature by this name.” He speculated that an 150 Maritime Claims, supra note 127, which references only the 1985 basepoints. The U.K. Annual Survey of Admiralty Notices to Mariners up to the end of 2012 does not indicate that new coordinates have been notified. See: at http://www.ukho.gov.uk/Product sandServices/Pages/Home;aspx. The 2001 Russian Federation submission to the Commission on the Limits of the Continental Shelf and preliminary recommendations from the Commission made no mention of baselines. See: Russian Federation, “Executive Summary,” 2001 and Secretary General’s Report to the U.N. General Assembly 57th Session, (2002), A/57/57/Add.1, 8 October 2002, para. 41, available on the Commission website, supra note 131. 151 R. Douglas Brubaker, “The Legal Status of the Russian Baselines in the Arctic,” Ocean Development and International Law 30 (1999): 191–233, at 207–217 and 226. 152 M.A. Tumskoy and V.E. Tumskoy, “Environment History of the Novosibirskie Islands for the Last 12 ka,” 32nd International Arctic Workshop, Program and Abstracts 2002, Institute of Arctic and Alpine Research, University of Colorado at Bounder, at 22–25. 153 M.K. Kosko, B.G. Lopatin and V.G. Ganelin, “Major Geological Features of the Islands of the East Siberian and Chukchi Seas and the Northern Coast of Chukotka,” Marine Geology 3 (1990): 349–369. 154 Kaye, supra note 90, at 82. 155 With coordinates 81.13.2o N, 95.064o E and 81.13.8o N, 95.067o E respectively. 156 Kaye, supra note 90, at 82, appeared to have had difficulty locating the glacier.

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outlet glacier called the Arktichevsky Institut Glacier, which is in close proximity to the basepoints’ coordinates, may be the Polyarny Glacier in question,157 which has proved not to be the case. The basepoint coordinates are located on the Molotov or Arctic Ice Cap, which is often called the Polyarny Glacier.158 A map of the northernmost part of Komsomolets Island and the Molotov/ Arctic Ice Cap (or so-called Polyarny Glacier) produced by remote sensing provides a clear representation of the ice formation.159 Based upon this evidence, there appears to be a very strong likelihood that the basepoints related to the Polyarny Glacier are now located in the sea though this cannot be confirmed definitively, given the limitations of remote sensing in detecting minor geographical features, such as drying rocks or other low-tide elevations. One thing is certain, they are no longer located on the glacier proper. Two possibilities respecting the status of basepoints 218 and 219 can be formulated, namely that they are now at sea, or alternatively, that they are now located on drying lands or other low-tide elevations, surrounded by water, icebergs and pack ice. Straight baselines have been constructed for this section of Komsomolets Island. Pursuant to article 7, paragraph four of the LOS Convention, low-tide elevations or drying areas can be used as basepoints for straight baselines, but only if a “lighthouse or similar installations which are permanently above sea level have been built on them” or if “…the drawing of baselines to and from such elevations has received general international recognition.” As there is no lighthouse or similar installation in the vicinity of the basepoints, one can only speculate as to their validity. The question arises whether there has been ‘general’ international recognition for the use of these features as basepoints. There does not appear to have been any specific objections to the baselines around the northern part of the Komsomolets Island. However, in addition to the legal issues arising from the possible use of an ice feature to define basepoints and given that the Polyarny Glacier has retreated and one or the other of the scenarios described above may now apply to basepoints 218 and 219 of the 1985 Decree, the validity of these basepoints is highly questionable. Invalidity of these basepoints could have serious 157 Id., at 69. 158 V.M. Kolyakov, et al., “Glaciers of Asia – Glaciers of the Former Soviet Union,” USGS Professional Paper 1386 F, F 1 Russia, in Richard S.W. Williams Jr. and Jane G. Ferrigno, eds., Satellite Image Atlas of Glaciers of the World, at http://pubs.usgs.gov/pp/p1386f/pdf/ F1_Russia.pdf. 159 Dimitry Nikoskiy, Aleksy I. Sharov, Vasiliy A. Mallinnikov and Marina N. Ukulova, Joanneum Research Digital, (2012), Map  8 at http://presentation.copernicus.org/ EGU2012-2S1_presentation.

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consequences for the delimitation of the territorial sea baselines in the area, as they represent turning points around the northernmost tip of the island. United States The U.S. Department of State has repeatedly expressed its view that there should be a very restricted use of straight baselines.160 The low-water mark rather than straight baselines have been used in drawing Alaskan baselines.161 There are no significant ice shelves or tongues along the Alaskan coast that could either be used as basepoints or which extend beyond the declared lowwater line baselines.162 Conclusion As described above, the ice features in the Arctic Ocean are rapidly melting and receding. There is little evidence that these ice features have played a significant role in the drawing of the baselines of the Arctic States or that they protrude into the sea far enough to extend beyond the declared baselines. Nonetheless, there are several potential and notable exceptions and the legal implications of these exceptions will be examined in the following section.

Legal Issues Arising

Changing Coasts, Changing Baselines, Shifting Limits Arctic coastlines are particularly susceptible to erosion and there is substantial evidence of the coastal retreat of Arctic coastlines. This process is compounded by the melting of the fast sea ice along the coasts and by other factors such sea 160 The U.S. government has repeatedly frustrated Alaska and other coastal States that have sought to use the straight baseline method. See, for example: United States v. Alaska, 521 U.S.1 (1997); United States v. California, 381 U.S.139 (1965), and United States v. Louisiana, 394 U.S. 11 (1969). In these cases, the U.S. Supreme Court declined to develop a test for the drawing of straight baselines as an alternative to normal baselines stating that “…this should be left to the branches of Government responsible for the formulation and implementation of foreign policy” (Louisiana Case, at 73). 161 Submerged Lands Act 1953, 33 U.S.C.§1301, unambiguously states: “…the Territorial Sea baseline is the mean low water line along the coast of the United States,” 33 C.F.R. §2.20. 162 See: B.F. Molina, “Glaciers of North America – Glaciers of Alaska,” (2008, updated in 2010), U.S. Geological Survey Professional Paper 1386 – K, in Williams and Ferrigno, supra note 158, at http://pubs.usgs.gov/pp/p1386K/.

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level rise. These changes to the locations of Arctic coastlines and thus low-water lines is important since normal baselines constitute a key type of baseline in use in the Arctic and the changes are also critical to the application of straight baselines. While on a global scale this issue should not be over-played, particularly with respect to the delineation of the outer limits of EEZs for instance, the problem is more acute in the Arctic, where the outer limits of zones such as the EEZ are dependent on relatively few critical basepoints163 and these controlling basepoints often coincide with headlands that are vulnerable to erosion. In large part driven by the concerns of small island developing coastal States threatened by the potential impacts of sea level rise, it has been suggested that the international legal regime relating to baselines be altered such that normal baselines be fixed in their present location.164 Alternatively, the outer limits of maritime zones derived from ambulatory normal baselines might be fixed in a manner analogous to the way in which, following the recommendations from the U.N. Commission on the Limits of the Continental Shelf (CLCS), coastal States may establish outer limits of the continental shelf that are “final and binding.”165 Such proposals thus far have not garnered significant support. This is prompting some States, such as Australia, to try to declare and fix their maritime claims.166 However, it waits to be seen whether this practice will be successful and more widely adopted. The Application of Straight Baselines to Ambulatory Arctic Coasts Problems arising from unstable coasts and thus uncertainties associated with ambulatory normal baselines may be partially overcome by the use of straight baselines. Straight baselines were not originally conceived with the aim of fixing baselines in response to global changes such as climate change and 163 This inevitably arises as broader zones of maritime jurisdiction require fewer basepoints in order to construct their outer limits in accordance with the envelope of arcs approach outlined in Section 2. See: Schofield, supra note 28, at 410. 164 See: Schofield, supra note 28, at 412–414; Moritaka Hayashi, “Sea Level Rise and the Law of the Sea: Legal and Policy Options,” in Proceedings of The International Symposium of Islands and Oceans, ed. Hiroshi Terashima (Tokyo: Ocean Policy Research Foundation, 2009), 78–90; and Jenny Grote Stoutenburg, “Implementing a New Regime of Stable Maritime Zones to Ensure the (Economic) Survival of Small Island States Threatened by Sea-level Rise,” International Journal of Marine and Coastal Law 26 (2011): 263–311. 165 Id., at 414. LOS Convention, supra note 7, article 76(8). 166 See: Australia, Seas and Submerged Lands (Limits of the Continental Shelf) Proclamation 2012, 24 May 2012, at http://www.comlaw.gov.au/Details/F2012L01081. See also: Sam Bateman and Clive Schofield, “Australia’s Outer Continental Shelf Regime,” Australian Journal of Marine and Ocean Affairs, 4, No. 4 (2012): 131–140.

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sea level rise as these developments were not well recognized at the time the LOS Convention was drafted. Nonetheless, article 7, paragraph 2 of the LOS Convention does allow for the application of straight baselines in the context of highly unstable coasts caused by deltas and other natural causes: Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal state in accordance with this Convention. While large portions of the Arctic coastline may be considered highly unstable, the above provision requires that such instability be caused by “the presence of a delta and other natural conditions,” which based on a strict interpretation would not apply to the majority of the Arctic littoral, although it is clearly valid at the deltas of the major Arctic rivers, such as the Mackenzie, Ob, Yenisey and Lena.167 In the Qatar-Bahrain Case the International Court observed unequivocally that the straight baseline method must be “applied restrictively.”168 Thus, it is questionable whether article 7, paragraph 2 could be used as a justification for the application of straight baselines along an entire coastline in response to the kind of climate change-induced erosion and sea level rise presently being experienced in the Arctic. There is perhaps some potential for a regional customary international legal rule for Arctic baselines to emerge. This would require a unified approach and, critically, an absence of objections to a broader teleological interpretation and application of article 7, paragraph 2 of the LOS Convention on the part of all of the Arctic States. The longstanding stance of the United States against what it interprets as ‘excessive’ maritime claims would appear to militate against such a regional rule crystallizing.169 On the other hand, the United States may not 167 On the drafting and interpretation of article 7, paragraph 2 of the LOS Convention see, in particular: Sally McDonald and J.R. Victor Prescott, “Baselines along Unstable Coasts: An Interpretation of Article 7(2),” Ocean Yearbook 8 (1990): 70–89. See also: Schofield, supra note 28, at 413. Concerning the impacts of heightened erosion rates on Arctic deltas, see: State of the Arctic Coast Report, supra note 54, at 29–32. 168 Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), [2001] I.C.J. Reports 40, at 67, para. 212. 169 See, generally: Roach and Smith, supra note 39, at 57–133. It is also the case that extraregional States might raise objections to such practice on the part of the Arctic States, replicating the U.S. protests against the maritime claims of other States on a global basis.

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consider such an approach ‘excessive’ and that, pragmatically, the drawing of Arctic baselines by the five littoral States in support of peaceful and stable maritime boundaries may override any other consideration. Straight baselines may provide only a partial fix as there still remains a need to anchor straight baselines to appropriate points located on the normal baseline in keeping with article 7, paragraph 1.170 As the 1989 study on baselines issued by the U.N. Office for Ocean Affairs and the Law of the Sea stated unambiguously: Appropriate points must be located on the territory of the State drawing the baselines and should be on or above the charted low-water line used in other parts of the coast as the normal baseline….171 (emphasis added) Consequently, an application of straight baselines may not resolve the problem of ambulatory normal baselines where Arctic coasts are subject to significant erosion. The Use of Ice Formations as Basepoints As discussed in the preceding section, four of the five Arctic Ocean States appear to have used ice features (such as fast ice, ice shelves, ice caps extending into the sea or glacier tongues) as loci for some of the basepoints for defining their territorial sea baselines. Such features have been observed to have experienced dramatic changes in recent times (see “Changing Arctic, Changing Coasts” above and Annex 1 to this contribution). This practice and the physical changes which the Arctic region is experiencing have given rise to several legal issues: • Was the original use of such basepoints legally valid? • Even if legally valid originally, what is the current legal status of such basepoints if they are now located in the sea due to the melting of the ice feature on which they were located? • What are the implications for the territorial sea and other maritime boundaries? • What are the implications for existing delimitation agreements? The Original Legal Status Can baseline anchor points located on ice be considered to be situated on an equivalent to land for the purpose of defining straight baselines? If an ice feature used as the locus of a basepoint can be assimilated to land, then no legal 170 Schofield, supra note 28, at 413. 171 U.N., Baselines, supra note 30, at 24.

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issue arises in using it as the locus for an ‘appropriate point’ for a baseline, or in using the outer edge of the ice formation (such as fast ice) as the low-water mark for a normally defined baseline. The LOS Convention and previous law of the sea conferences and treaties, as well as the work of the International Law Commission and other legal institutions, studiously avoided addressing the legal status of ice and/or its use in drawing baselines.172 Further, it can be observed that article 234 of the LOS Convention, the only provision in the Convention that refers to ice, is limited in its scope and application.173 It relates to the coastal State’s rights to adopt and enforce rules and regulations for the protection of the marine environment from vessel-source pollution within its EEZ in very specific circumstances: where particularly severe climatic conditions and the presence of ice covering such areas for most of the year render navigation particularly hazardous. Vague in its phraseology and not specifically addressing issues of ice itself, article 234 is not helpful in determining the legal status of ice, or the use of ice features as basepoint loci. Looking further afield to the other Pole for guidance, it would seem that although ice shelves were deemed to be within the area of application of the Antarctic Treaty (article VI – Geographical Coverage),174 the Treaty did not go so far as to term them either territory or land. Based on an extensive review of the literature discussing the legal status of ice formations since 1903, as summarized in Annex 2 to this contribution,175 a number of trends can be identified. • In the period 1903–2013, about one third of the writers took the view that permanent, stable ice formations that were attached to land could be assimilated to land territory. The remaining authors either viewed ice as sea (about a quarter), adopted a sector or alternative approach and thus did not 172 For a detailed review of the equivocation of these international bodies, see: Susan B. Boyd, “The Legal Status of Arctic Sea Ice: A Comparative Study and Proposal,” Canadian Yearbook of International Law 22 (1984): 98–152. 173 Rob Huebert, “Article 234 and Marine Pollution Jurisdiction in the Arctic,” in Elferink and Rothwell, supra note 80, 249–267, at 249. 174 Antarctic Treaty, 1 December 1959, 402 U.N.T.S. 71. On article VI of the Antarctic Treaty, see: Gillian Triggs, International Law and Australian Sovereignty in Antarctica (Legal Books PTY Ltd, 1986), at 85–96; Donald R. Rothwell, The Polar Regions and the Development of International Law (Cambridge: Cambridge University Press, 1995), at 268–298; and Christopher Joyner, “Ice-Covered Regions in International Law,” Natural Resources Journal 31 (1991): 213–242. 175 Undertaken by the second author and encompassing 95 publications since 1903. See Annex 2 and Bibliography, Annex 4 to this contribution.

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deal with the matter directly (about a fifth), or were undecided (about a fifth). Early writers (1903–1959) were two to one in favor of ice-as-land, with later writers (2000–present) more or less evenly distributed across the land, sea and undecided categories. It is worthy of note that all those writers who argued that ice attached to land should be considered as an extension of the land premised their arguments on its permanence and stability. • Of all the writers favoring the land view, over 50% made specific reference to Antarctica and its massive ice shelves. This is relevant as the characteristics of Antarctic ice shelves are different in scale and nature to those in the Arctic. The current dramatic calving and melting of the ice formations in the Arctic are not mirrored in Antarctica. Thus, drawing general conclusions on the legal nature of ice formations based on the characteristics of ice formations or State practice in Antarctica would be flawed. • Most of the recent detailed studies, having examined the sources of customary international law, concluded that the issue of the legal status of ice remains unresolved. They found that no international case had examined the question, international legal bodies have avoided the issue, jurists have taken widely varying approaches and State practice in the Arctic has not been consistent. • In many of the recent analyses, the various forms of ice in the Arctic Ocean were distinguished, and differing legal status were suggested by the authors, depending on their origin, location and characteristics (summarized in Annex 3 to this contribution). The following general conclusions on the legal status of ice can be drawn from the review: first, nearly all of the premises on which the jurists based their legal analyses are no longer valid in the Arctic; second, over time the forms of ice that were considered to be potentially assimilable to land were reduced to either one (ice shelves/glacier tongues) or none depending on the author; and, third and most importantly, there is no consensus either historically or among contemporary legal writers, although recently there appears to have been a significant trend towards not viewing ice as land in the Arctic. Turning to other sources of customary law, in the only international case to date, the 1993 Jan Mayen Case,176 where the International Court had an opportunity to address the issues of the legal status of ice and its use in the delimitation of the territorial sea, the Court declined to do so. In accepting the “baselines and coordinates which the Parties have themselves been content to employ,”177 176 Jan Mayen Case, supra note 114. 177 Id., at 44, para. 89.

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the Court avoided the need to examine the potentially problematic baseline issues including the legal status of ice along the coastlines. State practice in the Arctic has also not been consistent, as indicated in the more recent analyses by several legal writers.178 For example, as discussed in the preceding section, ice formations may have been used as loci for basepoints by four out of the five Arctic States. At one stage, Russia expressly included ice formations in its delimitation law,179 while the United States has been clear that ice is not to be considered land and that the use of the straight baseline method should be very restricted.180 The United States protested the 1985 Canadian use of straight baselines around the Arctic archipelago181 and in the Dinkum Sands Case, the U.S. federal government argued strongly that land did not include ice.182 There does not appear to be convincing evidence that a customary international law rule regarding the status of ice had emerged either at the time of the Canadian baselines in 1985, which is the earliest date for currently constructed baselines in the Arctic, were drawn or subsequently, or that such ice formations were, at the time of use, considered under international law to be land. Therefore, it cannot be said with any certainty that basepoints located on ice formations were ‘appropriate points’ under article 7, paragraph 1 of the LOS Convention. If such ice features are not land, then, under the international law of the sea, the question arises whether they could (whether considered frozen sea or a form of sui generis territory) be used to define basepoints for territorial sea baselines, whether drawn by the normal or the straight baseline method. The geophysical characteristics of ice features in the Arctic are changing so rapidly that it appears as if the ‘ice as land’ approach is melting away. None of the premises on which the jurists based their arguments, that certain ice features should be treated as land (in particular ice shelves and glacier tongues, but also often permanently attached fast ice), remain valid. It can be postulated that either these formations are part of the sea, or, as some jurists such as Auburn argued, they are a special form of territory, sui 178 Boyd, supra note 172; Kaye, supra note 90; and Rothwell, supra note 174. 179 Russian Law of 29 May 1911, article 1 reprinted in P.C. Jessup, The Law of Territorial Waters and Marine Jurisdiction (New York: G.A. Jennings and Co., 1927), at 27–28. 180 Roach and Smith, supra note 39, at 67. 181 Id., at 111–112. 182 Clive Symmons, “When is an ‘Island’ not an ‘Island’ in International Law? The Riddle of Dinkum Sands in the Case of US v. Alaska,” Maritime Briefings 2, No.6 (Durham: International Boundaries Research Unit, 1999), at 25–26.

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generis, and thus subject to physical appropriation.183 Auburn, however, considered ice shelves unsuitable for establishing baselines.184 This view was also mirrored by O’Connell, who took the position that using an ice shelf to draw a baseline would raise a number of legal issues, including the legal status of waters under the ice shelf and, therefore, the right of passage of submarines.185 It appears, therefore, that at the time when ice formations were used as basepoints there was no agreed view in international law that they were a sui generis form of territory capable of being used as loci for basepoints for the territorial sea. This view was defended only by a small minority of jurists,186 although several modern writers, in calling for the international legal community and Arctic States to address the issue, have advocated this approach as a possible solution.187 In conclusion, there has been no general international recognition of such ice formations as sui generis territory that might meet the article 7, paragraph 1 ‘appropriate points’ test. It is clear that basepoints in or on frozen sea would fail ab initio to be ‘appropriate points’ under article 7, paragraph 1, as they are not lying on the coasts nor do they fall within the delta situation described in paragraph 2. Thus, it is highly contentious whether the original basepoints on ice features were legally valid in respect of article 7 the LOS Convention. A further question then arises on whether the apparently unchallenged use by Denmark, Norway and Russia188 of territorial sea baselines that make use of basepoints situated on ice formations could be considered as Arctic regional customary international law. The general U.S. position on baselines and the lack of consensus among law of the sea experts suggests that it would be difficult to make the case that a regional rule of customary international law existed supporting baselines established using basepoints located on ice formations. In conclusion, although the legal status of ice features has long been unsettled and debated, and in the absence of a clear opinio juris on the part of Arctic 183 Francis M. Auburn, “International Law and Sea – Ice Jurisdiction in the Arctic Ocean,” International and Comparative Law Quarterly 22, (1973): 552 and Francis M. Auburn, Antarctic Law and Politics (Bloomington, Indiana: Indiana University Press, 1982), at 657. 184 Id. 185 Daniel P. O’Connell, The International Law of the Sea, Vol. 1, ed. Ivan A. Shearer (Oxford: Clarendon Press, 1982), at 197–199. 186 For example, Auburn, supra note 183, at 657. 187 See, for example, Donald R. Rothwell, “Antarctic Baselines: Flexing the Law for Icecovered Coastlines,” in Elferink and Rothwell, supra note 80, 49–68, at 56–58. 188 One could include Canada whose straight baselines were challenged by the United States but in respect to their enclosing the Northwest Passage and not with respect to the choice of ice features as loci for basepoints. See: Roach and Smith, supra note 39, at 111–112.

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States, there is a strongly arguable case that the basepoints on such Arctic ice features fail the ‘appropriate point’ test of article 7, paragraph 1 of the LOS Convention, thus calling their legal validity into question. Validity of Ice Basepoints that have Melted into the Sea To fully canvass the issue of basepoints on ice features, assume, notwithstanding the conclusion above, that the original basepoints had legal validity at the time they were defined. A second issue then arises as to the legal validity of basepoints that were located on ice features (ice shelves, extended ice caps, fast ice and glacier tongues), which have subsequently melted away leaving the coordinates of these basepoints located in the sea. Caron has asserted: “if a baseline point…disappears, the boundary generated by that point also disappears. Although this is obviously an important principle, it often goes unstated.”189 Although the LOS Convention does not expressly require that baselines and the maritime limits derived from them be redrawn when a basepoint submerges and a baseline shifts, Caron and other jurists190 argue that this obligation can be inferred, with two notable exceptions. The first is in the case of the delimitation of unstable coasts under article 7, paragraph 2, which remains effective despite changes to the baselines. The second is in the case of the delineation of the outer continental shelf limits which, in accordance with article 76, paragraph 8 of the LOS Convention, are to be final and binding.191 Thus, it can be argued that, unless the exceptions apply (the possibility of which will be explored below), four of the Arctic coastal States may have an obligation to update their territorial sea baselines where basepoints are now located in the sea. In the event the issue of a submerged basepoint previously located on an ice feature were raised before an international court or tribunal, what arguments might be raised? It has been argued that, since it was very difficult to tell where ice started and land began and since the ice features were quasi-permanent, stable and attached to the land, an ice formation was an appropriate site for a basepoint 189 David D. Caron, “When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level,” Ecology Law Review 17 (1990): 621–653, at 634– 635. This view is supported by Alfred Soons, “The Effects of Sea Level Rise on Maritime Limits and Boundaries,” Netherlands International Law Review 37 (1990): 207–232, at 207. 190 Id., and see, for example: Soons, supra note 189, at 216 and Eric Bird and J.R. Victor Prescott, “Rising Global Sea Levels and National Maritime Claims,” Marine Policy Reports 1 (1989): 177, at 192–195. 191 There is some debate whether the permanent and binding relates only to the claimant State or whether it includes all other parties. Soons, supra note 189, at 216–217.

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in polar regions.192 This argument is no longer valid in the Arctic – many of its ice features have melted or are melting away. Deprived of the characteristics that for many jurists justified assimilating ice to land, it would seem unlikely that such ice features would now be considered by an international judicial body as land and, therefore, as appropriate sites for basepoints on Arctic coasts. The fact that the coordinates of these basepoints are now located in the sea would reinforce this view, since the submergence of the basepoints raises a number of problematic legal issues. First and foremost, international courts and tribunals, including the International Court, have repeatedly asserted the international legal principle that “land dominates the sea,”193 raising significant problems with regard to territories and basepoints now submerged. Secondly, a key objective in boundary-making is to deliver finality and certainty. As indicated by the International Court in the Tunisia v. Libya Case, maritime boundaries are about long-term solutions.194 Further, in article 1 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone195 and article 2 of the LOS Convention, the extension of the sovereignty of a coastal State refers to “…an adjacent belt of sea, described as the territorial sea.” There is no reference to an intervening ice belt or to an ice belt that is melting away. Moreover, as emphasized above, the International Court has indicated that the straight baseline method of joining ‘appropriate points’ by straight lines is the exception to the normal baseline method indicated and that article 7 should be interpreted restrictively.196 It is difficult to imagine that the use of turning points no longer located on land would meet this requirement. On the other hand, the International Court and tribunals have, in taking into account the equity principle in delimitation disputes, repeatedly considered geographic factors.197 To what extent it would choose to do so in relation to ice formations is not clear, but the fact that ice formations in the Arctic are melting rapidly, making them highly unreliable as basepoint loci would surely be 192 Rothwell, supra note 187, at 50 and Stuart B. Kaye, “Antarctic Maritime Delimitations,” in Elferink and Rothwell, supra note 80, 157–178, at 167–169. 193 See, for example, the Anglo-Norwegian Fisheries Case, supra note 35, at 133. 194 Tunisia/Libya Continental Shelf Case (Tunisia v. Libya), [1982], I.C.J. Reports 18, at 30–31, paras. 40–41. 195 Territorial Sea and Contiguous Zone Convention, supra note 20. 196 Qatar v. Bahrain, supra note 38, at 103, para. 212. 197 This has been reconfirmed in recent cases. For example, in the Black Sea Case, supra note 15, at paras. 137 and 149, the importance of selecting basepoints for construction of a provisional equidistance line by reference to ‘the physical geography of the coast’ was emphasized, as was the need not to engage in the ‘judicial refashioning of geography’. This approach was echoed in the Bay of Bengal Case, supra note 15, at paras. 317, 322 and 325

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a geophysical factor to be taken into account. Such melting would also indicate the need for possible redrawing of maritime limits. However, this applies more generally to coastlines subject to erosion and/or sea level rise and retreat. Indeed, this ‘ambulatory’ baseline and limits approach198 has been followed by some of the Arctic States, notably the United States.199 Thus placing a basepoint on an ice formation or using the edge of an ice formation as a baseline in a rapidly melting Arctic would probably not be considered practical or legally acceptable. It should, nonetheless, be noted that the International Court appears willing to take into account the unstable nature of coasts under certain circumstances.200 However, this must be seen in the context of the article 7, paragraph 2 of the LOS Convention exception with respect to deltas. Only this paragraph provides an express exception to the rule that basepoints should be on land, in order to be ‘appropriate’. The issue is whether article 7, paragraph 2 applies only to delta situations, or whether it could also be interpreted broadly enough to apply to ‘other natural conditions’ not connected to delta locations, such as the Arctic Ocean coastline. During the negotiations leading to the adoption of the LOS Convention, the text of the 1975 Informal Single Negotiating Text stated: “Where because of the presence of a delta or other natural conditions…. [emphasis added]”201 However, this phrase had changed by 1976 to “[w]here because of the presence of a delta and other natural conditions… [emphasis added],” with this wording retained in the final text. It can be argued that this indicates that the negotiating States at that time wished to restrict the article only to deltas.202 It would, therefore, require a very liberal interpretation for the scope of article 7, paragraph 2 to be widened.203 Currently the weight of legal writing

198 199 200

201

202 203

and in the Nicaragua-Colombia Case, supra note 15, at paras. 191, 200 and 202. See also, for example, Prescott and Schofield, supra note 12, at 221–222. Prescott and Schofield, supra note 12, at 100–101. Such as the consideration by authorities of redrawing the closure line of the Kotzebue Sound, Alaska. See, Bird and Prescott, supra note 190, at 189. In the Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), [2007] I.C.J. Reports, at 78, para. 287, the Court decided that, since the basepoints that would be determined in using the normal method would be ‘inherently unstable’, it would use the bisector method to resolve the dispute between Nicaragua and Honduras. Third United Nations Conference on the Law of the Sea, Revised Single Negotiating Text, Document A/CONF.62/WP.8/Rev.l, 6 May 1976, Official Records, Vol. V (New York), at 111. It is worth noting in this context that the Russian version uses the ‘or’ rather than the ‘and’. Bird and Prescott, supra note 190, at 193. See also: McDonald and Prescott, supra note 167. J.R. Victor Prescott, “Straight and Archipelagic Baselines,” in Maritime Boundaries and Ocean Resources, ed. Gerald Blake (New Jersey: Barnes and Noble/International Geographical Union, Study Group on the World Political Map, 1987): 38–51.

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appears to favor a restrictive interpretation.204 Thus, given the above analysis and the geophysical state of the Arctic, it would seem likely that the International Court would apply the LOS Convention provisions restrictively, view ice features in the Arctic Ocean as ‘frozen sea’ (or rather melting ‘frozen sea’) and set the basepoints along the grounding line of any remaining ice feature with land or on the low-water line of the coast.205 In conclusion, it is debatable whether the basepoints located on ice formations were ever legally valid. In any case, it is clear that where the ice features originally used as basepoint locations have now melted into the sea, these basepoints would now be considered invalid. Most of the suspect basepoints in the Arctic fall into this category. Moreover, it is improbable that the four Arctic States who may have used a few of such basepoints will redefine them, especially prior to the submission to the CLCS of their proposed outer limits of the continental shelf beyond 200 nautical miles. It is equally doubtful that they would challenge another State’s use of such basepoints for fear of having their own basepoints counter-challenged. Given the high degree of difficulty that any amendment of the LOS Convention would entail, it is unlikely that icecovered coasts, the legal status of ice, and related territorial sea baselines issues will be addressed under the Convention. Further, the prospect that the issue would be submitted to an international court or tribunal is equally remote. However, it may be that the unchallenged State practice of the four Arctic States may, over time, create a regional customary international legal norm. Implications for Maritime Limits and Boundaries Whatever distortions from the ice features arise in defining territorial sea baselines and the maritime limits derived from them, these are likely to be considered generally by the Arctic States as de minimus in effect, particularly with respect to territorial sea and EEZ limits. Concerning continental shelf rights in the Arctic, all four Arctic States that are parties to the LOS Convention, have, or will have made their submissions on the definition of the outer limits of their continental shelves to the CLCS by 2014.206 It is not within the remit 204 See: David Freestone, “International Law and Sea Level Rise,” in International Law and Global Climate Change, eds. Robin Churchill and David Freestone (London/Dordrecht: Graham and Trotman/Martinus Nijhoff, 1991): 109–125 and Bird and Prescott, supra note 190, at 189–190. 205 On the declaration of maritime limits with respect to highly dynamic, unstable coastlines see: Schofield, supra note 28, at 413. See also: David Freestone and John Pethwick, “Sea-level Rise and Maritime Boundaries,” in Blake, supra note 203, 73–90, at 78. 206 Russia and Norway already have done so, Denmark has indicated that they will do so by the end of 2014. Canada made a partial submission to the Commission in 2013, however, submission of its outer continental shelf limits in the Arctic Ocean was expressly deferred,

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of the CLCS to assess the merits of, let alone challenge, the baselines from which a submitting State’s 200 and 350 nautical mile limits are measured.207 Accordingly, the existing claimed baselines were used in the Norwegian and Russian submissions to the CLCS without a problem arising, either from the CLCS or another State208 and the Danish submission, which is due in 2014, will likely follow the example set by the Norwegian and original Russian submissions in terms of using existing claimed baselines. This raises the relevance of the provision under article 76, paragraph 8 of the LOS Convention that the limits of the continental shelf established by a coastal State on the basis of the recommendations of the Commission are to be ‘final and binding’. This wording has inspired much academic debate as to whether this is final and binding only on the coastal State or also on all other States.209 Either way it would appear to be a difficult task to challenge a continental shelf limit so defined. Ice formations appear to have been used only sparingly and for restricted portions of the coast. Consequently, they could be regarded as of limited concern, especially when set against the erosion being experienced by large portions of the long Arctic terrestrial coastline. However, some of the basepoints that used ice features as loci (such as the Polyarny Glacier on Komsomolets Island discussed above) are at crucial turning points on the coasts. This coupled with the fact that some Arctic tidewater glacier fronts can be relatively large (for example Stonebreen on Svalbard is nearly 50  km wide), means a retreat of just ten kilometers could have a surprising impact, both in terms of the area affected and on occasion the direction of the coast.210

207 208

209

210

pending acquisition of additional data. See generally the Commission website, supra note 131. The mandate of the CLCS is set out in LOS Convention, supra note 7, article 76, paragraph 8 and Annex II. Russia, “Executive Summary,” and Commission recommendations, supra note 150 and Norway, “Executive Summary,” 27 November 2006, and CLCS Recommendations 27 March 2009, on the Commission website, supra note 131. See: Alexander Oude Elferink, “Causes, Consequences and Solutions relating to the Absence of Finding and Binding Outer Limits of the Continental Shelf,” in Selected Contemporary Issues in the Law of the Sea, ed. Clive R. Symmonds (Leiden: Martinus Nijhoff, 2011): 253–272 and Ted L. McDorman, “The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World,” International Journal of Marine and Coastal Law 17 (2002): 301–324, at 315–316. In 1961/1962 the Ward Hunt Glacier (Ellesmere Island, Canada) calved an ice island approximately 600 km2 and when the Petermann Glacier (Greenland) calved in 2010, it had an area of over 250 km2. Michon Scott, “Break Up of the Ward Hunt Ice Shelf,” Earth

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It is unlikely that the locations in question will be the basis of future disputes. They would not significantly affect any boundaries with the United States, the one Arctic Ocean State that has not used ice formations, or for that matter straight baselines, in defining its territorial sea. It would seem unlikely that any of the other four Arctic Ocean littoral States would raise objection to another State using ice features in delimitation as it would open its own use of similar features to question. As discussed above, the substantial changes to coastlines and their associated normal baselines also gives rise to concerns over the location of baselines and basepoints that may be used in the construction of equidistance linebased maritime boundaries. Further, with respect to existing bilateral maritime boundary agreements, these are in all probability likely to remain in place with baseline changes generally having little or no impact. The 1973 Canada and Denmark (Greenland) Agreement is interesting in this regard as it explicitly allows for revision based on new information and data.211 Conclusion The Arctic environment as a whole is undergoing major transformations and, more specifically, coastlines and baseline areas are experiencing significant and on-going change as a consequence of Arctic warming. In general, Arctic coasts are substantially more susceptible to the effects of warming than elsewhere and are experiencing rapid and significant retreat in the face of erosion resulting from warmer air, land and sea temperatures combined with the loss of ice as a protective buffer shielding the coast, increasing waves and storms impacting on the land/sea interface and potentially compounded by sea level rise. Changes to the location of the coast have and will lead to corresponding changes in normal baselines coincident with low-water lines along the coast with implications for the location of the outer limits of maritime zones. The straight baseline systems used by the Arctic littoral States seemingly offer a partial means to side-step this challenge, but such baselines need to be linked or anchored to the coast and thus are also vulnerable to change and may need to be relocated landwards with analogous implications for the maritime zones measured from them.

Obserbatory, 20 January 2004, at http://earthobservatory.nasa.gov/Features/wardhunt/ and Dowdeswell and Hambrey, supra note 75, at 331 and 404. 211 Canada-Denmark Continental Shelf Agreement, supra note 118, article IV(2).

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There is evidence that a number of the Arctic States may have incorporated the use of ice features in their baselines. There is compelling evidence that such features have been experiencing enormous changes in recent years, literally melting away. The legal status of ice in the Arctic and thus the legal validity of its use in the definition of the outer limits of maritime zones, as well as, in the delimitation of maritime boundaries is highly dubious. The question of the legal status of ice also raises significant specific issues concerning the legal validity of basepoints that were located upon them as such basepoints may well now be located at sea. These challenges are moderated to an extent through the likely stability of existing bilateral boundaries as well as the way in which the outer limits of the continental shelf can be fixed on an apparently permanent basis. It also appears that at least some of the Arctic States may have adopted a policy of some reticence over baseline changes. Several policy options can be suggested for Arctic coastal States wishing to stabilize or secure their baselines along uncovered and unstable coasts as well as their associated maritime spaces. • First, Arctic coastal States could, and arguably should, seek to delimit their maritime boundaries with neighboring States in a timely manner. • Second, Arctic States, who are parties to the LOS Convention, should make submissions concerning their extended continental shelves to the CLCS as quickly as possible, in order to try to render them ‘final and binding’, leaving it to opposite or adjacent States to settle any overlapping claims between themselves. • Third, the Arctic States should employ the provisions of article 7, paragraph 2 of the LOS Convention with respect to the definition of baselines around the large and unstable deltas at the mouths of the major Arctic rivers such as the Mackenzie, Ob, Lena and Yensey. • Fourth, the Arctic States might actively pursue a change in the international law relating to unstable coasts, especially in the context of sea level rise and climate change. Any rule providing that normal baselines and presently ambulatory maritime limits dependent upon them might be fixed would be compatible with their interests. Alternatively, a regional approach might be fostered, potentially leading to the formation of a customary rule of international law. • Finally, simultaneous with the above actions, the Arctic States might seek agreement between themselves on Arctic Ocean governance issues of mutual concern such as navigation, management and protection of the marine environment, and cooperation and sharing of Arctic marine resources. From observations of recent Arctic regional politics, treaties, and diplomatic interactions, it would seem that many of these steps are already well under way.

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Annex 1. Recent Status of Arctic Ice Formations Relevant to Baseline Determination

Arctic State

Formation Type

Current Status

Canada 1. Serson (formerly Alfred Ernst)

Ice shelf on northwest coast of Ellesmere Island

It has effectively melted away, leaving two tiny segments (a combined area less than 90 km2 in 2009). Neither segment is near a 1985 basepoint location.212 Between 2005 and 2011 it lost approximately 65% of its area and indications have been that it continues to lose mass significantly and will soon have disappeared.213 The second largest remaining Ellesmere ice shelf has so significantly melted that by 2009 it had a remaining area of only 205 km2, which did not extend beyond the fjord mouth.214 It had completely calved away by 1996.215

2. Peterson

Ice shelf on northwest coast of Ellesmere Island

3. Milne

Ice shelf on northwest coast of Ellesmere Island

4. McClintock

Ice shelf on northwest coast of Ellesmere Island

212 M.O. Jeffries, “The growth, structure and disintegration of Arctic ice shelves,” Polar Record 23, No.147, (1987): 631–649; M.O. Jefferies, “Glaciers of North America, Glaciers of Canada, Glaciers of the Arctic, Glaciers of Ellesmere Island Ice Shelves and Ice Islands,” US Geological Survey Professional Paper 1386-J-1 (2000): J147–J164, at J151–J153. 213 Adienne White, Luke Copland and Derek Mueller, “Physical Characteristics of the Peterson Ice Shelf, Ellesmere Island, Past and Present,” presentation at 2012 OttawaCarleton Student Northern Research Symposium, 8 February 2012, at http://www.carleton .ca/northernresearch/abstract/white.html. 214 Colleen A. Mortimer, Luke Copeland and Derek R. Mueller, “Volume and Area Changes of the Milne Ice Shelf, Ellesmere Island, Nunavut, Canada, since 1950,” Journal of Geophysical Research 117 (2012): F04011. 215 Andrew Hamilton and Shari Gagnon, “Climate Change: Ellesmere Island Ice Shelves,” Canadian Geographic (October 2008).

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Schofield and Sas (cont.)

Arctic State

Formation Type

Current Status

5. Ayles

Ice shelf on northwest coast of Ellesmere Island Ice shelf on northwest coast of Ellesmere Island

It had virtually disappeared by 2005.216 Although it is the largest remaining ice shelf, massive calvings in 1961, 1962, 2002/2003, 2008 and 2010 and other forms of melting had reduced it to an area of only 304 km2 by 2011.217 It had totally disintegrated by 2008.218 They all have been reported to be dramatically melting, thinning, and/or calving thereby retreating from the coast.220

6. Ward Hunt

7. Markham

Ice Shelf on north west coast of Ellesmere Island Denmark/Greenland There is one ice sheet and over 30 major tide water outlet glaciers along the coast of Greenland, of which two protruded significantly beyond the fiord mouth.219

216 Luke Copeland, Derek R. Mueller, and Laurie Weir, “Rapid Loss of the Ayles Ice Shelf, Ellesmere Island, Canada,” Geophysical Research Letters 34 (2007): L21501. 217 Michon Scott, “Break Up of the Ward Hunt Ice Shelf,” Earth Observatory, 20 January 2004, at http://earthobservatory.nasa.gov/Features/wardhunt/; Derek R. Mueller, Warwick F. Vincent, and Martin O. Jeffries, “Break-up of the Largest Arctic Ice Shelf and Associated Loss of an Epishelf Lake,” Geophysical Research, Research Letters 30, No. 20 (2003): 2031; Mark C. Serreze, “Meltdown in the north,” Scientific American 29, No. 4 (2002), 6. 218 Environment Canada, “The Calving of the Markham Ice Shelf,” (2013), at http://www .ec.gc.ca/glaces–ice-/default.asp?lang=En&n=02433413-1; and Adam Satariano, “Canadian Arctic Ice Sheet Nearly Size of Manhattan Breaks Off,” Bloomberg, 3 September 2008, at http://www.Bloomberg.com/apps/news?pid=newsarchive&sid=aAouw4NZSHH4&refer =Canada. 219 Eric Rignot and Pannir Kanagaratnam, “Changes in the Velocity Structure of the Greenland Ice Sheet,” Science 311, No. 5765, (2006): 986–990. 220 Julian Dowdeswell and Michael Hambrey, Islands of the Arctic (Cambridge: Cambridge University Press, 2002), at 331.

337

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Formation Type

Current Status

1. Greenland Ice Sheet

This ice sheet occupies 82% of Greenland’s land mass, with an area of 1,726,000 km2.

2. Petermann Glacier

Major outlet glacier

Its estimated rate of ice melt of 239 km2 per annum is having dramatic effect on its outlet glaciers which are rapidly calving and retreating within their fjord mouths.221 Although it significantly extended beyond the fjord mouth in 1973 due to massive calvings in between 2001 and 2011, satellite images show that it had by 2012 retreated within the fjord mouth.222 It has been retreating significantly – in 2010 alone its retreat was recorded at over 1.5 km.223

3. Jacobsthavn Isbrae A major outlet glacier

Norway 1. Jan Mayen Island

Although it has over 100 outlet glaciers its relatively mild Arctic climate means that its coast become virtually ice free in summer except in the vicinity of the tidewater outlet glaciers from the Beerenberg ice cap (e.g., Sorbreen).224

The Beerenberg ice cap’s glaciers protrude marginally into the sea, but reportedly they are melting and retreating rapidly.225

221 Paul Christofferson, “The Greenland Ice Sheet: How fast is it changing and why?,” (2011), Scott Polar Institute, at http://www.spri.com.ac.uk/research/projects/greenlandice sheet/. 222 Julian Dowdeswell and Michael Hambrey, Islands of the Arctic (Cambridge: Cambridge University Press, 2002), at 404. 223 Id., at 392. 224 Oystein Hov, “Meteorological Observations on Jan Mayan,” in Jan Mayen in Scientific Focus, Proceedings of the NATO ARW, Joint International Scientific Observation Facility on Jan Mayen Island, Oslo, Norway, ed. Stig Skreslet, NATO Science Series IV (NATO, 11–15 November 2003): 37–40, at 37. 225 See the interactive topological map of the Norwegian Polar Institute, at http:// topojanmayen.npolar.no/?land=en.

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Schofield and Sas (cont.)

Arctic State

Formation Type

Current Status

2. Svalbard

This archipelago has four main islands with large ice caps on all of them and glaciers covering 59% of the islands.226 Many of the glaciers are surge type.227

The main tidewater glaciers include ones on Kvitoya Island (Kvitoyjokulen ice cap, Nordaustlandet Island (Leighbreen and Brasvellbreen – major outlet glaciers of Austfonna ice cap), and Edgeoya (Stonebreen and Kong Johans Breen).228 The icecaps on Nordaustlandet terminate in long ice cliff coasts but recently with calving and melting, new areas of dry land on a few headlands have emerged (such as Isispynten on Austfonna Ice Cap).229

An archipelago of over 191 islands, over 85% of which are covered by ice sheets,230 giving rise to

These glaciers are now considered to be retreating rapidly with an significant thinning and increased

Russia 1. Franz Josef Land

226 Olav Liestol, “Glaciers of Europe – Glaciers of Svalbard, Norway,” in Satellite Image Atlas of Glaciers of the World, eds. Richard S. Williams Jr. and Jane G. Ferrigno, USGS Professional Paper 1386-E-5, at E127–151, at http://pubs.usgs.gov/pp/p1386e/Svalbard.pdf. 227 Id., at E133–135 and 138–139. This makes drawing any conclusions regarding implications of such glaciers for coastline delimitation difficult. 228 Id., at E128–130 gives details of largest outlet glaciers. 229 See: Norwegian Polar Institute, “Research on Glaciers, Svalbard’s glaciers are melting,” at http://www.npolar.no/en/research /topics/glaciers.htm. 230 A. I Sharov, H. Raggam and M. Schadt, “Satellite Hydrographic Monitoring along the Russian Arctic Coast,” in International Archives of Photogrammetry and Remote Sensing, (2000), Vol. XXXIII, Part BA, 947, at http://www.isprs.org/proceedings/XXXIII/congress/ part’/947_XXXIII-part4.pdf.

339

Uncovered And Unstable Coasts Arctic State

2. Novaya Zemlaya

Formation Type

Current Status

large numbers of outlet glaciers.

rate of calving231 As the northernmost land mass of Eurasia at 80°N to 81°52’N, it remains comprised mainly of ice and snow and, despite the melting sea ice, is still reported to surround the main islands in summer, making the determination of the location of basepoints/baselines extremely difficult.232 Studies since 1962 have shown that these outlet glaciers have been melting, retreating and thinning.233

An archipelago with two main islands, 45% of the northern island is covered by ice sheet and glaciers giving rise to numerous outlet tidewater glaciers 3. Severnaya Zemlaya An archipelago of 4 main and 70 smaller islands, it has a very severe Arctic climate, and is approximately 50% glacier

The archipelago is noted by scientists for the level of ongoing multiyear shrinkage of its caps,235 and by 2012 the extent of so-called permanent

231 A.I. Sharov, “Franz Josef Land region: Glacier Changes 1950s–2000s,” (Graz: Joanneum Research Institute, 2008). 232 See: Chillymanjaro, “The Glaciers of on the Islands of Franz Josef are Currently in a State of Retreat,” The Watchers (blog), 20 August 2011, at http://the.watchers.adorraeli.com/ category/earth-changes/arctic_antarctic. 233 Leonid Polyak, Valery Gataullin, Olga Okuneva and Vilnis Stelle, “New Constraints on the Limits of the Barent-Kara Ice Sheet: The Last Glacial Maximum based on Borehole Stratigraphy from the Perchora Sea,” Geology 28, no. 7 (2000): 611–614. 234 Michael Williams and Julian A. Dowdeswell, “Historical Fluctuation of the Matusevich Ice Shelf, Severnaya Zemlaya, Russian High Arctic,” Arctic, Antarctic and Alpine Research 133, no.2, (May 2001): 211–222. 235 R.P. Bassford, M.J. Siegert, and J.A. Dowdeswell, “Quantifying the Mass Balance of Ice Caps on Severnaya Zemlaya, Russian High Arctic III: Sensitivity of Ice Caps in Severnaya Zemlaya to Climate Change,” Arctic, Antarctic, and Alpine Research 38, no. 1 (2006): 21–33.

340 Annex 1

Schofield and Sas (cont.)

Arctic State

Formation Type

Current Status ice had reached a new recorded low.236

United States

covered; The world’s largest floating ice shelf, the Matusevich, is located on October Revolution Island. Each of the main islands has ice caps and glaciers. All their tidewater glaciers calve frequently and these calving faces extend for about 190 km (14.3% of the archipelago’s coastline).234 None



The northernmost ice cap extending into the sea is the Polyarny Glacier on Kosomolets Island, which has melted and retreated substantially, in all probability leaving the loci of basepoints in the sea.237

Annex 2. Notes on Jurists’ Approaches and Premises to the Legal Status of Ice and Its Use in Baseline Delimitation238

Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1904

Rolland

French

Now in the Arctic fast ice generally is neither permanent nor immobile: therefore it would

Maintained that the permanent surface of ice extending from the coast outwards is a prolongation of land,

236 A.I. Sharov, Severnaya Zemlaya: Glacier Changes in the 1980s–2000s (Graz: Joanneum Research Institute, 2009). 237 As shown in Map  8 in a study at Joanneum Research Institute by A.I. Sharov, V.A. Malinnokov, and M.N. Ukulova, “Joanneum Research Digital,” (2012), at http://presenta tion.copernicus.org/EGU2012-2015_presentation. 238 This table was prepared by B. Sas in 2013 . See Annex 3 for the Bibliography of the Authors.

341

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

1905

Martens

Russian (Tsarist)

1909

Brown Scott

American

i.e., ‘ice is land’ if it is immobile and permanent, [otherwise it should be subject to the law of the sea]. @340–345. Used the term to describe such ice as “territoire glaciaire.” @345. Rejected suggestion that semi- permanent ice (9 months+) could be land: “…ice has yet to be equated with dry land.” @384. All floating ice is not land. Argued that ice-covered waters are res communis and not res nullius.@928. His opinion, like Balch’s, was that the Arctic, being incapable of (or de minimis extremely difficult for) permanent settlement by humans, cannot be brought under sovereignty by effective occupation, in general. His other argument was that mere discovery vests no title. @941. His opinion is cited by Waldock

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century appear that his two fundamental premises are currently no longer valid.

In present day his view would probably be considered correct.

Modern jurists would view as correct his approach to floating ice. Very progressive to view North Pole as res communis.

342

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

1909

French Wautrin (a pen name for Rene Dollot, so see 1949 Dollot also)

1910

Balch

American

(@314), who in turn is quoted verbatim by Whiteman (@1263). Concluded that the whole of the Arctic Ocean can be assimilated to land. @649. “When ice is totally immobile…there is no doubt that acquisition of it is feasible: the ice formed in such climates shares in a certain sense, the longevity of land and may well cease to be res communis.” @655. Took the view that complete freedom of the high seas applies to polar regions. Pack ice which is not affixed to land and floating is not land. @266. Made a major distinction between Arctic and Antarctic ice. He accepted that in the Antarctic there may be an argument that permanent ice shelves could be considered

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

His approach was based on premises (permanence and immobility) that are no longer generally valid in the Arctic. It appears to be very much rooted in the Arctic perceptions of the period.

His implication that fast ice might be considered land needs be viewed in relation to his premises of being affixed, permanent and possibly (depending on interpretation of ‘not floating’), grounded. Physical circumstances in the Arctic have dramatically

343

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

glacies firma. @265–266.

1910

Meili

Swiss

Travers

French

1920

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

he formulated his approach, and it may be that today in the Arctic he would not consider fast ice and shelf ice to be glacies firma. An early distinction Took the view that if of forms of ice permanent and based on attached ice could be used in the delimitation characteristics. of the territorial sea and that if it was neither permanent nor attached it was part of He justified this the sea. Did not approach not by distinguish between analogy to land, but permanent or other with respect to the types of ice and necessity of coastal declared that the states to maintain baseline for the good order in coastal territorial sea should be measured from the waters. @260. This approach is objecedge of the ice when tionable according to frozen. @260. Gidel (@530) because it allows states to extend into the high seas and is also practically inconvenient in having a variable baseline depending on the position of the frozen ice at any time.

344

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

1925

Fauchille

French

1925

Hatschek and German Strupp

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

His premise of permanent ice in the Arctic is generally no longer valid. His arguments, however, re sector theory considered that permanent ice might be have proved correct. Now that Arctic fast susceptible to appropriation by occupation ice and ice caps and (by exploitation rather ice shelves/tongues are melting away his than habitation) and with respect to such ice approach of not using ice in he adopted Rolland’s territoire glaciaire. On measuring baselines appears sound both the other hand he de facto and de lege seemed to reject the in the Arctic of using of the edge of such ice for measuring today. territorial sea baselines. @16–17 and @652– 653. He also was anti-sector theory because he argued this meant that only countries on the polar circle could have sectors in the Arctic. @651–653. Concluded that coastal They appear to have states have the right to in mind when Concluded that, as floating ice is not amenable to occupation such ice is not land. But also

345

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

extend sovereignty over permanent adjacent fast ice for the purposes of exercising criminal jurisdiction and in their national interest if circumstances warrant it. @35–36. Contrary to Rolland they made no distinction between temporary or permanently frozen ice for the purposes of exercising such jurisdiction.

1925/26 Hunter and 1928 Miller

American

Advocated radical sectoral approach with the Arctic to be divided between the United States, Canada and Russia on the basis of ‘reasonable’ exploration. Saw this as highly convenient with the rest of the world able to do little but accept this division.@60. (1925).

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century analysing the issue the 1904 U.S. case of the gambling casino on the ice when formulating their view. It appears they were concerned with ensuring criminal jurisdiction over such ice formations, and not really addressing the legal status of such ice and its implications for drawing maritime boundaries. One could suggest it was a view rooted in the specifics of a recent case of its period. A rather imperialistic approach, again rooted in the politics of the day. The sector approach is no longer advocated by any of the Arctic states. But the ‘divide it up and rule’ approach Miller advocated is very much what has

346

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

1926

Korovin

Soviet/ Russian

1926

Lindley

British

He argued the analogy between land and permanent ice areas and formulated the attractive concept of ‘hinter-ice’ as a homologue of ‘hinterland’. @248 (1928). Argued that the 1926 USSR claiming sovereignty over lands and island north of its territory should be interpreted to include ice floating or fast. Mainly descriptive (but appeared uncritical of) of ‘Ice is land’ approach. @45–46. Disagreed with all the following theories: ‘exploration as occupation’ leading to sovereign claim theory, the contiguity/ hinterland theory, and the sectoral approach. Wanted an international conference to define division of Arctic and the basis for doing so. @235.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century happened and continues today.

Rooted in the politics of the day, and, even in its day, not widely accepted. Since the Russian Federation has repealed the 1926 Decree and in 1985 passed a new law, no longer relevant. A good idea but politically unrealistic even in 1926.

347

Uncovered And Unstable Coasts Date

Author

1927 and Clute 1940

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Canadian

In the contemporary Arctic Ocean this approach can be seen to be correct in respect of pack ice.

1927

Jessup

American

1928

Oppenheim

German/ British

A strong proponent of the ‘ice is not land’ theory, he considered pack ice, whether permanent or not, is not land. Very strong that all Arctic Ice is water. @20–21 (1927). “Even if large areas of the Arctic sea are frozen up, it is still open sea, not subject to claims of sovereignty.” @452 (1940). Came to no conclusions…but cited Fauchille uncritically, that territorial sea should not be measured from the edge of the ice belt. @27–28. Defined the sea as “…a coherent body of sea water.” @593–594. He considered that the North Pole is definitely not land as it is floating. @593–594.

Same comment as Fauchille.

Interesting what he meant by ‘coherent’. In the Arctic much of the sea ice and the floating ice islands and icebergs have little, if no, salinity. In 1928 it might be assumed that the process of desalinization in the formation of sea ice,

348

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

1928

Sigrist

Soviet/ Russian

1929

Breitfuss

Soviet/ Russian

Considered that immobile ice is land: “We refuse to admit any legal difference between frozen lands and immobile ice.” @982–987. Argued for Sector theory…the ice should be included in sovereign claim to an extent that should be set by international law. He indicated that ice formations should be taken into consideration when determining baselines.@467–469.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century and the fresh water (glacier) origins of ice islands and icebergs may not have been understood. Clearly his view of pack ice at the North Pole agrees with the views of most other jurists since the 1970s. One suspects an approach politically motivated and in line with the 1926 Soviet decree.

A slightly more measured approach, but clearly constrained like Sigrist in Stalinist USSR.

349

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1929

Schoenborn

French

Conservative and cautious approach and rather perspicacious re climate change.

1930

Lakhtine

Soviet/ Russian

1930

Whittemore Boggs

American

Favoured ice being assimilated to land but only if truly permanent and he expressed reservations, with concerns of the validity of attributed change in status in the event of a change in climate. @161 seq.. Systematized Russian sector theory and saw it as the only ‘practical’ solution to the problem of delimitation. @711. Maintained that “… floating ice should be assimilated legally to open polar seas, whilst ice formations that are more or less immovable should enjoy the legal status equivalent to polar territory.” @712.

The father of the Russian sector theory, which has been abandoned at least since the mid-1980s. His premise of total immobility of arctic ice formations is no longer valid in the Arctic. Again a Soviet jurist writing in a particular period with an ‘impassable mass’ view of the Arctic? Probably more A senior geographer interesting for what with the U.S Department of State, in he did not address his paper to the 1930 than what he did address, i.e., the Conference for the status of ice. Codification of

350

Schofield and Sas

Annex 2

(cont.)

Date

Author

1930

Francois

1932

Smedal

Nationality Opinion/Approach

International Law, Commission II on Territorial Waters, he set out proposals for drawing baselines – all relating to points on the coast: “…the limit of the territorial sea… must be a line which is derived directly from the coast-line.” @541. The paper was silent with respect to any mention of ice covered coasts. Reported the Committee’s view that “…the provisions of the present convention do not prejudge the questions which arise in regard to coasts which are ordinary applicable to shores ordinarily or permanently ice bound.” @123–124.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

An example of the international legal community avoiding addressing the issue…arguably a repeating theme to the present. Note also the words ‘ordinarily’ and ‘permanently’, which raise issues in the context of Arctic ice present circumstances. His view regarding Norwegian Considered that fast sector theory has and shelf ice due to their characteristics of proven correct – it is no Dutch. The Special Rapporteur to the 1930 Hague Conference

351

Uncovered And Unstable Coasts Date

1934

Author

Gidel

Nationality Opinion/Approach

French

immobility and permanence and that physically they ‘resemble’ it, are land territory more than sea territory. @30–31. In the case of shelf ice (which he terms ‘ice barrier’), he argued that it should be treated as land and an object of sovereignty because, in addition to its permanence there is no natural boundary between the continental ice and the shelf ice. He also took the view that the Arctic, by occupation of a ‘no-man’s land’, could be claimed. @30–31 and 46. He was anti-sector theory and viewed the theory as ‘imperialist’. @62–64. Came to no real conclusions but set out clearly the theories. Took the view that legal status depends on origin and whether the ice is fast (fixed). @530. Considered the issue of

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century longer considered applicable by governments or most jurists. However, his views that ice is land were based on premises that are no longer generally applicable to fast and shelf ice in the Arctic.

Since irrespective of its origin, in the Arctic, fast ice is currently melting away in summers and it would seem that he would now classify it as sea.

352

Schofield and Sas

Annex 2

(cont.)

Date

Author

Hyde 1934, 1945, and 1947

Nationality Opinion/Approach

American

ice covered coasts should be looked at internationally. @526. Considered sovereignty might be claimed over permanent immobile ice (ice is land) but not pack ice, which is mobile. @347–355 (1945). Later he was concerned with the legal consequences of assimilating ice to land. @347–348 (1947). He argued that pack ice is subject to deterioration and dissolution and that therefore it is “unreasonable for states to deal with it as though it were land.” @288 (1934). Appeared to favor the sector approach because it “…Marks indifference as to the nature of the surface of the area concerned – whether it be land, or ice, or water.” @206 (1945).

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Again views based on the premises that ice in the Arctic is permanent and immobile, which are no longer valid. His later concerns however appear to continue to be valid.

353

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1935

Pashukanis

Russian

Argued that ‘effective occupation’ of ‘polar areas’ might give rise to sovereign claims. It is unclear what polar areas include. @127.

1938

Taracouzio

Estonian (USSR)/ American

Reviewed Imperial decree of 1911 and the 1926 USSR Decree. Drew clear distinctions between fast ice, pack and drift ice. Accepted possibility of drawing baselines from the outer limit of permanent ice covered areas. @348 seq. and 356 seq. He argued strongly for an international conference “…as not only a logical way conclusively to determine the legal status of the Arctic, but an urgent necessity.” He suggested a modified sector theory could apply but only to land and not to ice, water or air. @366

Hard to envisage effective occupation on pack ice, fast ice or protruding ice shelves and glacier tongues in the Arctic today, due to the melt. His approach to make distinctions between forms of ice, with their different characteristics giving rise to different status, is a modern one. However, since the ice shelves and fast ice in the Arctic are melting, his premises for the drawing of baselines have disappeared. His land sector approach is not considered valid by modern (especially western) jurists.

354

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1939

McKitterick

Canadian

His view on the sector approach has proved correct. His international common benefit approach no longer realistic. The islands have been claimed and the polar cap is now under LOS Convention.

1939

Wilson

American

1948

Waldock

British

Described the sector approach as a ‘­discarded theory’. @95. Also stated that all areas not already under sovereign control should be governed by an international commission for the ‘common benefit’ and that remote islands in the North Polar area, together with the ice cap, should be regarded as the “common possession of all states that have an interest in them.” @95. Argued that “if the seaward limits do not change it would seem that a measure of jurisdiction over permanent ice should be in the adjacent land sovereignty.” @26.

An interesting variation, which viewed permanent immobile ice as capable of sovereign claim. Again his premises no longer true for ice shelves or fast ice in the Arctic. Considered that it was Many subsequent doubtful whether “…the jurists have followed claims of states under the Waldock sector declarations are approach (see Jessup

355

Uncovered And Unstable Coasts Date

1949

Author

Dollot

Nationality Opinion/Approach

French

either sufficiently clear in their application to ice or sufficiently well founded in law to conclude the question of frozen seas”@317. He also argued that the view that Arctic areas are not susceptible to occupation is erroneous and that therefore the premise of any ‘condominium theory’ is would be invalid. @314. He hypothesized that a court ‘might well recognize’ that ice shelves, no matter that they may be a product of land and sea, are prolongations of the land.@318. Cautioned that one should not identify ice territory with a land territory. @138. But he also took the view that ice areas are not sea either, but a special territory capable of claim. In favor of substituting occupation by exploitation for occupation by

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century and Oppenheim for example). Proved correct on the sector approach. His ice shelf argument was premised on permanence, immobility, and attachment and thus may now be seriously questioned.

Interesting to compare these views with his earlier writing under his nom de plume Waultrin – a quasi-volte face.

356

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

1950

Durdenevesjiy Soviet/ Russian

1954

Nikolaev

Soviet

habitation with respect to permanent ice areas. @138. Pro-sector jurist. He considered that all Arctic states had accepted the sector theory and the necessity of creating entire sectors (of at least all land and islands) under the full sovereignty of the coastal states. @111. He also pointed out that there are significant differences between northern and southern polar regions and that the southern region should be divided by joint international agreement. @111–113. In favor of measuring the territorial sea from the edge of the stationary permanent ice attached to the shore. @207.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

A lawyer of his time and circumstances.

No longer practically sound as Arctic fast ice is now melting.

Uncovered And Unstable Coasts

357

Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1957

Fitzmaurice

British

A bit non-committal. Perhaps the issue was one of the gaps in international law, the existence of which he debated (1974).

1958

Svarlien

Considered that the matter was unsettled, but leant towards viewing ice-covered sea as res communis, but that possibly (semi) permanent ice shelves could be assimilated to the land mass. @155. Norwegian Anti-general sector approach, but accepted it might be appropriate in the Arctic for land, but not water, ice or air. @142–143. He in fact felt the “the sector principle of territorial claims in the Arctic…is sufficiently in accord with the inevitable to make its tacit adoption highly probable.” He took the view that all floating ice formations are part of the sea.@143.

Proved wrong on sector approach, but according to most modern jurists he was right on mobile sea ice.

358

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

1958

Cohen

Canadian

1958

Uustal

Estonian (Soviet period)

1958

Hayton

American

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Considered polar ice At the time of writing cap as ‘quasi land’. @56. was a Canadian representative at the UN (UNCLOS II). His writings might be arguably construed as political testing of the (icy) waters on the part of the Canadian government. Argued that permanent Premised on two ice that encloses islands characteristics: that fast ice and shelves and the mainland in were attached and polar regions is an inseparable part of the permanent, and mainland and islands such premises are and that it can be used not valid today in in drawing baselines for the Arctic. the territorial sea. @184. Was concerned that the Interesting issues Antarctic ‘Ice Cap’ was and his arguments on the Ice Cap, problematic in origin (fresh or sea water) and which are arguably that the below sea level equally applicable areas if melted prove to to Greenland. His be sea and Antarctica view that there is permanently some form of archigrounded ice is no pelago.@761 (1958). Described the Arctic as longer pertinent to “an economic, legal and today’s Arctic. military wilderness”… “and a

359

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

1961

Partridge

American

1962

Mouton

Dutch

controversial one at that…” @752. Expressed the view that pack ice, since it is a)subject to occupation and usage by the Inuit, and, b) not really navigable due to its density and permanence, is very similar to land and its status should so reflect this.@55.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

As a senior Commander in the U.S. Navy, acting as the law specialist in the Executive Office of the Secretary of State of the U.S. Navy, Ben Partridge’s views can be seen to reflect the views of the United States at the time they were written. They no longer do so. Anti-sector theory as Correct regarding sector approach. His “…going against all previously recognised approach of methods of acquisition assimilating permanent of territorial sovergrounded ice eignty.” @243. shelves to land (and He distinguished between ice formations all others to sea), has more relevance that rested on the continental shelf and to the Antarctic than the Arctic in those that floated, stating that in the latter the twenty-first century. case “in view of the objections against considering the floating part of the ice shelves as land territory an indisputable answer

360

Schofield and Sas

Annex 2

(cont.)

Date

Author

1963

Head

Nationality Opinion/Approach

Canadian

is not self-evident.” @197. Argued that permanently grounded and affixed ice formations should be considered as land. @192 and 195. Viewed pack ice as high seas. @189–190. Amusingly dismissed any concern of melting ice shelves as ‘jocular’ and irrelevant as they have been around for millennia and that anyway they would take hundreds of generations to melt. @195–196. Traced the history of the Canadian sector approach and its apparent abandonment as the main rationale for the Canadian sovereignty claims, although he finished stating: “Whatever its role, the sector principle must be view in the perspective of

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

It is no surprise that he worked for the Department of External Affairs, Canada.

361

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

1963

Whiteman

American

1964– 1982

Kozhevnikov Soviet (1964), Zhudro (1964), Barabolya (1966), Ignatenko and Ostpenko (1978), Maodzhoryan and Blatova (1979), and Tunkin (1982).

the total Canadian claim…consistent with the principles of international law.” @210. He observed certain advantage of simplicity of the approach: “Sector claims are not selective; the quality of the surface is immaterial. It may be land, ice, or water.” @220. Appeared to support the view pack ice is not land. @222–224. His chapter on sovereignty over polar regions consisted of a verbatim reproduction of Waldock’s 1948 paper with no critical analysis thereof. A host of moderate Soviet writers of the 60s, 70s, and 80s, they opined that only islands are territory of a coastal Arctic state. Expressed little, if any (then only re land) support of the sector approach.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

See comments on Waldock.

Practically they have been proved correct. Note that the acquisition of these islands was not on the basis of sector theory.

362

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1966

G. Smith

Canadian

Posed the problems but not the solutions.

1967 and Butler 1972

American

1967

British

Colombos

Examined the issue of the status of ice islands, when discussing Canadian claims in the Arctic. He expressed preference for an analogy to ships rather than land, but then argued that this analogy also soon breaks down as they cannot be controlled and break up. @249. In both he reviewed Russian jurists and concluded that sector theory is not recognized, as is confirmed by official USSR and other state practice. @77 (1978).

Did not consider a different limit of the territorial sea should be established for fast ice covered coasts. @129.

Useful as he compared the opinions of Soviet jurists with actual governmental statements and acts during this period. Some jurists were at variance and still argued the sector approach, but many others had moved on. In the context of Arctic his approach to fast ice is clearly practical given the melting of fast ice along such coasts.

363

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1967

Jennings

British

Gave an excellent argument for non-grounded ice shelves not to be assimilated to the land. Now there are almost no grounded ice shelves in the Arctic that extend into the Arctic Ocean (with possible but variable exceptions such as in Svalbard). One of the most thorough and thoughtful analysts of the status of Arctic ice, his views reflected the circumstances of the time – see his shifting views regarding ice shelves between 1969 and 1973. At various times he shaped rather than reflected the official Canadian approach to the issues.

1969 and Pharand 1973

Canadian

Concluded since that submarine could by 1967 navigate beneath the ice in the Arctic (both under pack floes and most ice shelves) the notion of sovereignty extending from the surface of the ice to the seabed below it is conceptually unacceptable in international law. @432–436. Looked at status of ice shelves and ice islands in 1969 and stated that although “…the legal status of ice shelves in international law has never been determined but there appears to be a consensus among interested states that they ought to be considered as land…” – but his arguments made primarily in the context of Antarctica. In 1969 he concluded that such approach would not be problematic for the Canadian ice shelves or

364

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

baseline drawing as they have effectively melted away.@466 (1969). In respect of ice islands he then argued that the jurisdiction and status should be settled by international consensus. @475 (1969). However, he revisited the issues in 1973 and: -Argued against both the sector and contiguity theories. @180 (1973); -Distinguished forms of ice and argued this resulted in different status for the various forms: o Concluding that pack ice is high seas because it “…is not compact, uniform, permanent, or immobile. @153–157 (1973); but, o Remaining equivocal with respect to ice shelves.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

365

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

1969

Lisovskiy

Soviet

1970

Graham

Canadian

He stated that Svalbard ice shelves might be assimilated to land due to their relative permanence, but elsewhere including Canada he thought that, due to the massive Arctic melt, their status was probably irrelevant. @187–188 (1973); and, o Concluding that ice islands are capable of being under state jurisdiction for the period they exist and are used. Considered they are not land and possibly could be treated like ships. @188–204 (1973). Argued a modified sector approach but only re land. (as related in Timtchenko, op. cit., at 31).

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

A restricted approach to sector theory, like Durdeneyskiy in 1950 and other Soviet jurists, 1964–1982. It is useful to note his Appeared anti-‘Ice is view that ice shelves land’ arguing “…the traits of mobility and were not used by Canada as basesemi-permanence, which most types of ice points loci in 1970.

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(cont.)

Date

Author

1970

Johnston

Nationality Opinion/Approach

Canadian

share, make any generally applicable ‘ice is land’ theory in implausible.” @450. However, in his conclusion, he suggested de lege ferenda that “…there is reason to consider ice shelves as ‘glacies firma’, while floating ice islands are ‘different from land’.” @494. He also stated categorically: “As for the Canadian Arctic, the ice shelves off Ellesmere Island have never served as baselines.” @490. He concluded that ice “…has no status of its own in international law.”@494. A prominent LOS jurist, the following passage from his analysis was often quoted during the early 70s: The Arctic Ocean “…is an ocean because

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century If correct it would seem highly unlikely that the 1985 basepoints would change this.

His views were very similar to that of the Canadian government of the time, which echoed his ‘uniqueness of the Arctic’ argument

367

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

people have long thought of it as such for a long time. More exactly it is a unique geographical area with some important oceanic properties… The Arctic Ocean is largely hypothetical, a peculiar mix of hypothetical waters and hypothetical islands, the distinction mostly covered by large masses of ice.” @1–7. However, having said that, he then avoided in his writings discussing in any detail or coming to any conclusions on the legal status of ice or delimitation along ice-covered coasts.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century frequently and especially in relation to coastal states’ rights and responsibilities for environmental protection. [for example, see: Parliament, House of Commons, Debates, April 12 1970, 6028: the Arctic Ocean is defined as “an area having unique characteristics, where there is an intimate relationship between sea, ice and land…”]. The Canadian push manifested firstly in the domestic Arctic Waters Pollution Prevention Act 1970 [R.SC. 1985c.A-12] and finally internationally in article 234 of the LOS Convention. His avoidance of any detailed analysis of the legal status of ice and delimitation along ice covered coasts is somewhat surprising.

368

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(cont.)

Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1970, 1973, and 1982

Auburn

New Zealand

A very interesting read and one that poses the problems and issues clearly, although his ‘suggestions’ do appear to be geared to promoting New Zealand’s claim to the Ross Ice Shelf. His basic arguments for a sui generis classification assume that LOS does not address the issue…probably in present times an assumption too far.

Very Antarctic/New Zealand oriented. Reviews the literature from an Arctic perspective and although he came to no firm conclusions he did ‘suggest’ that: 1. Ice is a sui generis feature, quoting with approval Fauchille (“ni mer, ni terre ferme”), which he accepted does not really solve the problems. @657, 2. It was important to “…prevent a solution by slot machine jurisprudence on a character as either land or sea.” @657, and, 3. Ice shelves in the Antarctic should be subject to acquisition for no other reason

369

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

1971

Beesley

Canadian

1972

Vasilenko Soviet and Lukashuk

than “…in the absence of any customary rule of international law, or international agreement, restrictions upon the independence of states cannot be presumed.” @643. He basically avoided discussing generally sector theory. @245. Placed great emphasis on the solidity and permanence of pack ice. Argued that Arctic Ocean is “sui generis” area. @5. Quoted with approval the views of Johnston and Partridge. Less concerned with sovereignty per se and more about environmental protection and called for international legal action. @7–12.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

As the legal advisor/ Director General of the Bureau of Legal and Consular Affairs, in the Department of External Affairs his views mirrored the those of the government of the time, especially in justifying the Arctic Waters Pollution Prevention Act 1970 [op.cit, Johnston]. Among the last serious Their view was by Russian jurists to argue then diverging from that all permanent ice the official governformations affixed to ment view. the coast are subject to sovereign claim by the coastal state. @262–263.

370

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(cont.)

Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1973

McConnell

Canadian

The main bulk of his article examines the issue of prevention of pollution in the Arctic and states’ rights and responsibilities. The ice sections are premised on the characteristics of permanence, immobility and solidity of ice shelves, which are no longer valid in the Arctic. He reflects the views, geography, and politics of the times.

Reviewed the history of Canadian and Russian sector approaches (but no critical analysis) @477–482. Reviews various writers regarding glacies firma. @482–484. Saw no difference if permanent solid immobile glacies firma is over land or water. @483. He argued against Colombos (ice is sea otherwise coastal states have excessive maritime belts), and considered there to be a persuasive argument that ice shelves and fast ice should be used in delimitation, since they are permanent, ‘dense’, and immobile, as otherwise there would be ‘problems’ regarding navigation and delimitation of the territorial sea.@484.

371

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1974

Aubrey

American

Echoed Pharand, see comments above.

1974

Schatz

American

Examined the issue of the criminal jurisdiction over a floating ice island, but in doing so concluded: The Arctic Ocean, pack ice and ice islands are all part of the high seas. @436. He quotes as persuasive Pharand’s view that ice islands can be viewed as vessels but thinks that might be a step too far.@438. Considered that “…the law of the sea is the dominant fact of the international legal regime of the Arctic” although he recognizes that the question of status is unsettled and concludes that “the more likely situation… is one in which there is neither effective sovereignty nor terra nullius -neither recognition nor open contest of expressed or implied sovereign claim.” @5–7.

A realistic view, given the 2008 Ilulissat Declaration.

372

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(cont.)

Date

Author

Nationality Opinion/Approach

1975

Bernhardt

American

1976

B. Smith

Canadian

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Advisor to the U.S. delegation to UNCLOS meeting in Geneva in 1975, he made a very strong argument against looking to the Arctic for guidance regarding Antarctic approaches to ice. @303. However, the argument vice versa can also be very strongly made. His arguments were premised on the permanence, solidity and immobility, of the ice, however this is different factually now in the Arctic of today. Arguing for the Argued that the international commu- uniqueness of the Arctic, he restricted nity by including article 234 in the LOS his attentions to Convention endorsed article 234 and did not attempt any the ‘uniqueness approach’ to the Arctic. other analysis of ice status issues. @628. A glacies firma proponent in respect of the Antarctic, he propounded that “… there is no logical or compelling legal reason…why the shelf and sheet ice of Antarctica should not be assimilated to a land regime governing that continent.” @310. Argued for a distinction to be drawn between floating and immobile ice. @304.

373

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

1977

Lundquist

American

1978

Feder

American

He also recognized “… the incompleteness and ambiguity” of article 234 and that “critical issues (such as the status of ice) remain” unresolved. @629. He agreed with Hayton that pack ice, fast ice and floating ice islands cannot be assimilated to land. @27. He stated, quoting Waldock as authority, that the “…weight of authority suggests that the ice shelves (of Antarctica) should be so assimilated” (i.e. to land). @28. Took the view that law the sea, although it has been paid lip service, has been “something less than a success in promoting uniformity, or even clarity, in the definition of national and international rights in the Arctic.” @801. Also concluded that law of the sea as the legal regime of the Arctic can

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

His analysis was rooted in Antarctic circumstances.

A probably realistic conclusion viewed both historically and today looking to the future.

374

Schofield and Sas

Annex 2

(cont.)

Date

Author

1979

Zuccaro

Nationality Opinion/Approach

American

be seen as “…more a matter of expediency as a tool of territorial appropriation than as evidence of agreement between Arctic states that the regime is well suited to the Arctic’s physical characteristics.” @811. Mainly focused on the Antarctic. Cited Bernhardt with approval. @412. Concluded that: (1) ice sheet and caps should be assimilated to land, @412; (2) floating pack ice should be assimilated to sea, @412; (3) floating ice islands should not be assimilated to land, @413; (4) ice shelves in Antarctica should be assimilated to land, @413–414; and (5) baselines should be measured from edge of fast ice, @414.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

On all but ice shelves and delimitation he is not contentious in respect of modern thinking. However, he appeared to have taken into account only the characteristics of Antarctic ice shelves in formulating his view. He placed emphasis on characteristics of floating, mobility and permanence… and may well have, at least for the Arctic, reached very different conclusions today.

375

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1981

Bloomfield

American

Both interesting views that are probably still true today.

1982

Molde

Danish

A political scientist who argued: 1. The Antarctic political cooperation cannot be replicated in the Arctic. @103. 2. That international Arctic policy (up to the time of writing) can be characterized as one “… of benign neglect and laissez faire,” with Arctic States sharing the Arctic and pursuing their national purposes. @105. He simply asserted with no supporting analysis: “Since it is generally accepted that ice shelves consisting of sea ice as well as glacier ice can be used for the determination of maritime zones, actual glaciers extending into the sea and hiding the outer edge of the underlying land mass can a fortiori be said to form a legitimate basis for such determination, provided the glacier is

His main concern was clearly regarding the glaciers of Greenland and how baselines could be drawn. He offered no argumentation for his assertion regarding ice shelves and their status. He did however qualify his view with the requirement of ‘reasonable stability’, which is now no longer pertinent to Greenland’s glaciers.

376

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

reasonably stable.” @165. He stated that all straight baselines for Greenland have been “… drawn without using the ice formations as base points”, such ice formations in practice have “… no influence on the determination of the territorial sea.” @ 165. He later conceded that there is one area in northeast Greenland, where the part of the ice cap known as the “Flade Isblink” protruded at certain points well into the sea and that the ordinances have used the outer edges of the ice cap there. He justified this as stating that the Flade Isblink is grounded, the actual edge of the land mass is indistinguishable from the ice cap and that it “fully satisfies the

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century His premises regarding Flade Isblink are also no longer valid. Otherwise, his views on pack ice, ice islands and icebergs accord with the approaches of most modern jurists.

377

Uncovered And Unstable Coasts Date

1983

Author

Nationality Opinion/Approach

Churchill and British Lowe

demands for permanence and stability.” @166. Mobile and non-permanent ice floes ice islands and icebergs are not, he argued, subjects of territorial claim and their legal status depends in what maritime jurisdiction they find themselves in. @ 168–169. They noted: “One special geographical condition for which the Law of the Sea and the Territorial Sea Conventions make no provision is permanent ice shelves, found in parts of the Arctic and Antarctic. Such shelves may be many miles in width. It is uncertain whether the baseline should be the outer edge of the ice shelf or the edge of land. The issue was deliberately not discussed at UNCLOS III for fear of re-opening the

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Very illuminative with respect to the silence of UNCLOS III.

378

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

Van der Essen Belgium 1983, 1985, and 1992

1984

Kindt and Parriott

American

question of the legal status of Antarctica.” @33. Writing in the context of the Antarctic he took the view that baselines should be measured from the outer face of ice shelves and fast ice stating that: baselines “…cannot be located anywhere but on the outward faces of the ice shelves, which are the seaward prolongation of the Antarctic continent.” @231 (1983). In 1992 he reiterated his conclusion that with respect to the drawing of baselines that land territory ends where the permanent ice ends. @528(1992). Their article was mainly concerned with the protection of environment and exploitation of natural resources, and was primarily

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Very Antarctic focused. No legal arguments given. Belgian representative to 1958 and 1960 LOS conferences, and 1982 LOS Convention. With a particular interest in Antarctica, which may explain his approach, especially in his later writing, which was in the light of the 1990 report of Arctic melting by the IPCC.

Offer little legal justification for the semi-enclosed sea conclusion.

379

Uncovered And Unstable Coasts Date

Author

1984

O’Connell and Shearer

1984

Boyd

Nationality Opinion/Approach

Antarctic focused. They concluded that: 1. The Arctic should be governed by the general principles of the Convention on the Law of the Sea relating to closed and semienclosed areas and supplemented by regional agreements among the Arctic coastal states, and, 2. The sector theory is “discredited and should be abandoned permanently.” @941 New ZealandConsidered use of ice and formations in the Australian measurement of the territorial sea as “not as simple as has been supposed.” @197. Pointed out the difficulties but comes to no conclusions or proposals.@198–199. Canadian Author of a comprehensive and authoritative article on the legal status of ice she drew clear distinctions between different

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Inconclusive.

Her premises of permanence, stability, and attachment were rooted in the period. Today she would

380

Schofield and Sas

Annex 2

(cont.)

Date

Author

1986

Triggs

Nationality Opinion/Approach

Australian

forms of ice which she saw as resulting in different status. Concluded that shelf ice should be treated as land extension and that “…[t]he physical properties of fast ice provide a basis for the assimilation of fast ice to land territory in much the same way as do the physical properties of shelf ice.” @140. Saw all mobile, non-permanent and affixed ice as sea. Reviewed the issues, but primarily from an Antarctic perspective. She expressly stated that a distinction should be made between the Arctic and the Antarctic and that analogies cannot necessarily be drawn. @87. She concluded that there is a strong possibly that a

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century most likely modify her conclusions (at least for the Arctic) in the light of Arctic melt.

Notable for her emphasis on drawing a distinction between Arctic and Antarctic. On the legal status of ice she comes to no conclusion but makes the useful point that all things being equal a court may look at issues such as contiguity and effective

381

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

c­ ustomary norm has arisen in the Antarctic that it was terra nullius and subject to sovereign claims. @87–88. However, she seems to be hedging her bets when she adds: “… for the moment, the notion of res communis … does not apply in Antarctica”. @95. With respect to ice caps and shelves in the Antarctic she found state practice treating them as assimilated to the land territory, backed up by many but not all academic writers. She, however, came to no conclusion after her review. @ 86–87. With respect to using ice formations for delimitation she left it open: “…the question... has remained open.” @88–89. Challenged the validity of the sector principle

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century occupation. But her analysis is focused on the Antarctic context.

382

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

Boczek

as a means of delimitation, but did consider that an international tribunal may place weight upon the considerations underlying the theory when evaluating claims to territorial sovereignty. @89. On the Arctic Ocean she took the view that, even if frozen up, it cannot be the subject of sovereignty. @95. Czech origin, Refuted sector theory American regarding Arctic Ocean, pointing out that three of the five Arctic states have never accepted any form of sector approach, @162–163; “…any claims under the sector theory to the waters and ice covered areas of the Arctic Ocean beyond the territorial aw have no basis under international law”@163. Raised but did not

1986

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Clearly pertinent argument in respect of the sector theory but made no contribution to status of ice debate.

Uncovered And Unstable Coasts Date

Author

Prescott and 1986 (2005 2nd Schofield edition)

Nationality Opinion/Approach

analyse baseline drawing along coasts with fast ice or ice shelves. @168. In a passing comment stated: “…it is not very easy to distinguish between land fast ice and the ocean itself…” Australian They stated: “The and British literature has not produced a preferred recommendation for delimiting normal or straight baselines along permanently ice bound coasts. The range of solutions identified in early contributions has not been refined.” @102. They raised the two options for delimitation along ice covered coasts: either the edge of the ice or the grounding line of the ice formation. @102. They did point out that with technological advancements it is now possible to identify the line of the continental

383 Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

They raise many salient points, in particular that it is now scientifically possible to identify where land mass ends and ice begins.

384

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

1987

Klimenko

Russian

1987

Killas

Canadian

1988

Mangone

American

mass from the attached ice. But they came to no conclusions. @102–103. Took the view that all Arctic ice not on terra firma is sea. Quoted Molde and Boyd with approval and concluded that common sense leads to using ice shelves for delimitation where the ice shelf is comparatively permanent and stable. @129–130 Believed you can draw analogy with Article 7(2) and that “…the use of ice – shelves for basepoints is a solution – consistent with international law – to a problem posed by environmental conditions.” @130. Considered that ice shelves and fast ice can be used to measure baselines, and that ice

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Becoming a reality in the Arctic summers. His arguments were pragmatic, given his premises – the outer edge of the land mass is virtually impossible to know, or chart, with any accuracy, and the ice shelf when relatively permanent resembles land and acts as a barrier to navigation. However, his key premises of permanence and stability do not, however, appertain to Canadian ice shelves today. Conclusions regarding status premised on the permanence and non-mobility of the

385

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

shelves are glacies firma. @382–384.

1988

Andreyev and Bischenko

1988

Kulebyakin

1990

Vartansov and Roginko

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

ice formations… Rooted in geophysical information generally available at the time. Arguably Russia Soviet/ Argued that western may now see that it Russian “bourgeois” scholars promote “internationali- can get sufficient sation” of polar regions control by ‘using’ UNCLOS. ignoring, inter alia, important factors such as the “great economic, environmental and defence importance to the Soviet Union of Soviet peripheral seas and their being integrated into the mainland.” @127–128. Written just before Soviet/ Another strong Russian advocate of the ‘ice is perestroika his land’ and of the sector opinions now appear to be rooted approach including in past politics. land, islands, sea and ice, he made a rear guard ‘Soviet’ argument, often using strong political clichés. @143 They marked, Re-evaluated the Russian (in the Gorbachev/ (just prior issues without the perestroika era) a to collapse constraints of the clear change in Soviet political of the formulae, concluding Russian approach to USSR)

386

Schofield and Sas

Annex 2

(cont.)

Date

Author

1990

Kolodin and Volosov

1991 and Joyner 2001

Nationality Opinion/Approach

Russian

American

that: “…there is an apparent need to reconsider radically the approach to the whole international legal regime of the Arctic”@70. Chose to avoid any discussion of the sector approach, ice formations or ice covered coasts altogether. @159–163. Argued that international norms for regulating the legal status and regime of use of land and sea expanses in the Arctic existed, but that it was in a process of evolution and optimistically saw a progressive trend. @168. Made the distinction between ice forms and analysed their different characteristics resulting in different status. He saw pack ice, due to its non-permanent, mobile

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century the Arctic and related ice issues.

Avoided a solid analysis, but clearly saw international law as playing a major role in the establishment of an Arctic legal regime. Like the authors above…perhaps they were jurists in a phase of great political change in their country.

He appeared to be primarily concerned with Antarctic situations. Many of his arguments were

387

Uncovered And Unstable Coasts Date

1992

Author

Machowski

Nationality Opinion/Approach

Polish

nature as high seas. @224 (1991). Fast ice frozen to the shores even if “extending several miles seaward…cannot convey natural opportunities for lawfully extending sovereign jurisdiction further offshore.” @224 (1991). He stated that: “An ice shelf is not open space: it is glacies firma. Hence, the conclusion that ice shelves ought not to be designated high seas. Instead ice shelves should be viewed as the natural projection of land seaward, over which the natural boundary between a shelf and its land-based glacier is indistinguishable.” @226. Provided an analysis of most of the key issues. Concluded: 1. That there are no generally agreed rules

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century based on premises that are no longer valid in today’s Arctic or that do not reflect current technology, e.g., it is now possible to accurately determine the grounding line of ice shelves.

If his second conclusion is followed, it would seem that most of his conclusions,

388

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

for drawing maritime boundaries around ice-bound coasts. @156. 2. That those trying to establish rules should rely on the results of interdisciplinary scientific investigations of polar ice. @157. 3. That ice has a special, sui generis, character and that its legal status and legal regime should be defined urgently and adequately by the international community…realistically he thought it “…might take some time…” but felt that perhaps the “first effective steps in the direction have already been…” taken. @159 and 174. 4. On the legal status of permanent ice (mainly addressing the legal status of the Antarctic ice shelf) that “… It is widely accepted that

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century especially regarding pack ice and ice shelves would need to be revised.

389

Uncovered And Unstable Coasts Date

1992

Author

Sahurie

Nationality Opinion/Approach

Chilean

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

such shelf is … a special form of territory sui generis and subject to physical appropriation.” @160. Although he accepted that such was “not yet regulated.” @165 5. That “… the contemporary international law excludes sea areas covered permanently with ice from the application of the generally binding rules of the law of the sea.” @165 7. That ‘floating’ ice (i.e., pack ice) is also subject to acquisition. @168. 8. That the legal status of Icebergs and Ice stations remains unresolved. @ 171–172. Mounted a very strong Would appear today to be sound argument to distinarguments. guish ice in the Antarctic from ice in the Arctic. He argues they have different circumstances and characteristics and therefore should have difference legal and did

390

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

1993

Franckx

Belgian

1994

Vinogradov

Russian

not support ice being used for delimitation. @378. Mostly descriptive and comparative. Pointed out that since UNCLOS, most of the Soviet and then Russian writings generally acknowledged that the Arctic Ocean, whether frozen or not, is governed by the law of the sea and that coastal states cannot make fullyfledged claims to sovereignty over ice-covered areas off their coasts. @170. Described the Canadian and Russian use of sector theory arguments and reasoned that the theory was no longer pertinent to either government at the time of writing. @81 and 170. Argued that “…The controversial practice

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Both descriptions correct.

Evidence of Russian jurists slowly

391

Uncovered And Unstable Coasts Date

1994

Author

Bedjaoui

1994 and Timtchenko 1997

Nationality Opinion/Approach

Algerian

Russian

of states does not permit [s] to speak of a norm of the customary law form on the basis of the sectoral theory. In this connection the ‘narrow’ interpretation is preferable, according to which the sovereignty of a coastal state may be spread over lands and island, but not over the whole Arctic space adjacent to the shore of the respective state.” @380. Argued that the glacies firma theory for fast ice is weak as the ice melts annually and creates what he terms “a variable zone of geometry.” @713. Inter alia he reviewed most of the Soviet writers of the 1960s–1980s and found that almost all (with one or two notable exceptions) adhered to the view that “all Arctic states has a sector” but that

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century moving away from Soviet approach, even in narrow interpretation sector theory no longer considered correct, even if just in respect of land.

A surprisingly firm approach, which fits with 2014 circumstances.

Provided an excellent review of Soviet jurists @31–32, but came to no concluding legal opinion. Instead he argued for international cooperation and the need for Russia to

392

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

they divided into two camps. The first were of the opinion that only islands were the territory of the coastal States – Kozhevnikov, 1964; Zhudro, 1964; Barabolya, 1966; Ignanatenko and Ostapenko, 1978; Mozzhoryan and Blatova, 1979; and Tunkin, 1982. The other much smaller group considered that both land, seas, and ice were under the sovereignty of the Arctic state. Post-LOS Convention 1982 he found that only Kulebyakin (1988) continued to argue the second camp approach, which he thought reflected “…the inertia of the old style of thinking rather than the real trends in the development of Soviet legal science.” @31.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century formally clarify its approach to Arctic sector theory, with a view to sustainable development. @34.

393

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

1994

Kolosov and Kuznetsov

Russian

Early in the Russian Federation’s life these jurists were being cautious as to their approaches.

1996

Green J.

Australian

1996

Rothwell

Australian

In their authoritative text book on international law has no mention of the Arctic or sectoral theory. This is mirrored, as Timchenko pointed out (@31), by similar silence in the publications of Molodtsov (1987), Bekyashev (1990), and Vereshchetin (1992). Oriented very much to the circumstances of the Antarctic she argued that ice shelves are too prominent features in Antarctica to disregard when delimiting the ‘coastline’. @345. She argued that they were capable of generating valid baselines and that the grounding line should be used. @348–349. He reviewed the issues and concluded: 1. That there is a distinctive Arctic

Her premises are that the ice shelves are permanent, and relatively stable. She does not justify legally her arguments or her definition of ‘coastline’. Soley oriented to Antarctic situation.

His analysis is more oriented to the Antarctic and written prior to the major studies on

394

Schofield and Sas

Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

International law emerging and that the different bilateral and multilateral agreement may constitute an Arctic Regime. @155. 2. That sheet ice is equivalent to terra firma.@263. 2. That ice shelves (attached and having similar physical and utilitarian qualities with land) should be appropriately approximated to land (sui generis). @263. They are also subject to sovereign claim. @265. In respect of ice he mooted the application of article 7. That fast ice should be assimilated to land (quoting Boyd with approval) and most probably subject to some form of sovereign claim provided it has a high degree of permanence and a record of

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century Arctic melt. So many of his premises no longer pertain to the Arctic of today.

395

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

1999 and Brubaker 2001

American

1999 and Bartsits 2000

Russian

2000

Russian

Kolosov and Krivchikova

some historic usage to support such claim. @263. 4. Pack ice (mobile and floating) should be equated to sea. @264. Did not examine in any depth the general issue of delimitation along ice-covered coasts, but did raise the interesting question whether article 234 includes ice- covered straits. @87. Concluded that the sector approach for the legal regime of the Arctic has no legal grounds. @34 (1999). Similar arguments in 2000. Took the view that there was a trend to the ‘internationalization’ of the Arctic. Looked at various cooperative moves by Arctic states

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Quoted by Kovalev and Butler (see below) as an authoritative view.

Perhaps a little optimistic about the soft law approach of the Arctic Council, and perhaps better to be redefined as

396

Schofield and Sas

Annex 2

(cont.)

Date

Author

2003

Harsson, Carleton, McNab, and Orheim

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

including through the Arctic Council and by bilateral agreements. @128 Norwegian, The authors were in favor of drawing British, Canadian, baseline at edge of ‘permanent’ ice and Norwegian formations.@2. Rejected choice of the grounding line because they argued that it would be expensive and inaccurate to ascertain and that the land edge may change isostaticly on the melting of the ice formation.@3. Made a large distinction between circumstances in Arctic where they argue only a few glaciers/shelves extend into the see, they float and “…stay generally within the baselines determined by rock extending further seawards.” @3. Their arguments were more geared for Antarctic situation for

‘regional’ rather than international?

Their argument are somewhat skewed; Canada and Denmark happily jointly charted costs between Canada and Greenland at great expense. Their argument that the technology is inaccurate is not correct in 2014, in fact to the contrary. Moreover, their choice of the edge did not factor into account the significant retreat of the edges of ice formations, now acknowledged even in Antarctica. Of the 244 Antarctic glaciers 87% have retreated over the past 50 years. The collapse of both the

397

Uncovered And Unstable Coasts Date

2003

Author

Kaye

Nationality Opinion/Approach

Australian

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

which they want an international agreement. In the Arctic, they concluded, “the presence of glaciers does not cause significant problems with regard to the construction of baselines in the context of the Law of the Sea.” @4.

Larsen A and Larsen B Ice Shelves in 1995 and 2002 respectively, and that of the Wilkins Ice Shelf in 2008– 2009 are indicative that even large fringing ice shelves are melting in the Antarctic.239

Very Antarctic oriented, he presented an interesting and informative review of the opinio juris, case law and state practice with respect to the legal status of ice. His table is very illuminative on academic writers views (and support) on using permanent and attached ice shelves delimit baselines and where re the ice shelf should be the basepoints (average outer edge or grounding line) @30

His table on first sight is very convincing. However, five of the 15 authors are Australian and focused on the Antarctic situation. Of the others: Three Canadians (Boyd, Pharand, and McConnell) all premise their arguments on characteristics which no longer appertain generally in the Arctic; the four Americans (Bernhardt, Joyner,

239 A.J. Cook, A.J. Fox, D. Vaughan, and J.G. Ferrigno, “Retreating Glacier Fronts on the Antarctic Peninsula Over the Past Half-Century,” Science 308, no. 5721 (2005): 541.

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Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

He concluded: 1. That ice sheets (covering terra firma) are to be treated as land. @27. 2. That the majority of international support the view that ice can be used for delimitation provided it is a) not sea ice origin, b) permanent and c) attached to the land mass. @27. 3. That using ice shelves in delimitating baselines is consistent with article 5, LOS Convention. @27–28.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century Mangone, Zuccarro) and one British (Watts), all focused on the Antarctic and have the usual premises of permanence, attachment and stability; the remaining (Sahurie and Theutenberg) disagreed. In today’s Arctic, eight of the writers’ premises have literally now melted away. Since Kaye depends heavily on these premises it would be interesting whether he would now modify his analysis and exclude the Arctic situation in his approach to the legal status of ice and use of ice formations for delimitation of the territorial sea.

399

Uncovered And Unstable Coasts Date

Author

Nationality Opinion/Approach

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

2004

Kovalev (Butler)

Russian

Butler viewed this author as authoritative. His views could be considered valid in present circumstances.

2006

QuillereMajzoub

Lebanese

2008

Proells and Mueller

German

Agreed with Bartsits that the sector approach has no solid legal basis and that any arguments that it has de facto been established are “hardly convincing.” @186-r7. Argued the Arctic Ocean should be generally (with the exception of article 234 of the LOS Convention) treated, despite its icy circumstances, the same as all other parts of the World Ocean. @183. He posed as a major issue delimitation along ice covered coasts but did not analyse the legal issues connected with it. @184–185. Analysed views from 1904 onwards, pointing out the pros and cons of various opinions but came to no conclusion. @433–438. Managed to avoid discussion of the landward limit of the territorial sea, i.e., no

Useful review, but added nothing to debate.

Concentrated only on the issues of the Northwest Passage and article 76

400

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Annex 2

(cont.)

Date

Author

Nationality Opinion/Approach

2008

Brownlie

British

2009

Matz-Lueck

German

2010

Norton Moore American

baselines and ice issues in a 34-page article on the legal regime of the Arctic Ocean. @653–687. Reviewed Waldock, Hunter Miller, Lakhtine and Smedal on the extension and character of sovereignty over permanent and semi-permanent covered areas, apparently adopting a Waldockian approach. @143–144. Reviewed theories and appears to lean towards the ice is land school. @241. Suggested that the sector approach may reemerge as part of an argument to determine sea-zones according to coastal proportionality (in particular by Russia). @242. He was primarily concerned with article 234 and also the Northwest Passage.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century continental shelf claims.

A conservative review of the issues. Like several other eminent British jurists he favored Waldock’s approach.

Interesting view, but to date to judge by Russian writings and practice, it has not proved correct.

But he did not address baseline delimitation along ice-covered coasts.

401

Uncovered And Unstable Coasts Date

2011

Author

Cinelli

Nationality Opinion/Approach

Italian

Stated that: “…the starting and ending point of my presentation is the very unremarkable proposition that the Arctic is an ocean, and UNCLOS fully applies to it and offers solutions to our problems.” @26. She examined the legal status of only pack ice and ice islands/ icebergs in the Arctic Ocean (missing out the tricky issues of fast ice and ice shelves). She concluded that pack ice is high seas (@9) and that there is a legal gap with respect to ice islands. @9–10. She noted that the Arctic states exercise a selective application of LOS and argued for the need for a teleological interpretation of the LOS Convention, in light of the new conditions or specifics of the Arctic Ocean. @10. She also found after a thorough review that

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

Although very recent her review added little concrete or new to the actual legal debate.

402

Schofield and Sas

Annex 2

(cont.)

Date

Author

2012

Bangert

Nationality Opinion/Approach

Danish

precautionary measures are viewed as a mere legal approach and not a principle in the Arctic context. @22. He stated: “Generally, the extension of coastal state sovereignty over the land territory unto adjacent ice covered area still is seen as unsettled”@5. He went on to review various authors and concluded: “No solu­­­ tions…can be found in the UNCLOS.… The legal framework will have to be found in general procedural frameworks as duty to negotiate, and devel­opment of local solutions to local circumstances.” @5–7. With respect to drawing baselines on ice, he again reviewed authors and the Conventions on the law of the sea and concluded that nothing is settled. @10–11.

Comments on how the approach sits with the reality of the Arctic and international law in the twenty-first century

In his conclusion he quoted Jessup who in 1929 stated: “For these various minutiae it is useless to advance general rules. Their adjustment in individual cases must be left to the moderation and good sense of the states concerned. One can only predict that an unreasonable claim will meet with vigorous opposition.” [Jessup, op. cit., at 71.] Conclusion: Perhaps nothing much has changed in international legal thinking on ice in over 100 years.

403

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Annex 3. Types of Arctic Ice and Their Legal Status Type of ice Premised characteristics

Status

1. Sea ice – pack ice

Origin sea water Almost and floating. universally seen as part of the sea.

2. Sea ice – fast ice

Some viewed it as solid only seasonally.

Many jurists based on premises of permanence, stability and attachment to coast differed. Universally seen 3. Ice caps as permanent and ice sheets – on and land based. land

In such case viewed as sea.

Assimilated to land.

Assimilated to land.

Authors’ Current characteristics suggestions relative to 2013 2013 Arctic conditions Sea ice significantly melting. Multiyear ice extent dramatically reduced. In 2012 NASA images showed the sea-ice summer extent at its historical minimum. Now in summer rapidly melting or already melted away. Premises no longer valid generally.

Status as sea clearly valid.

Now also rapidly melting.

Land status should remain unchanged.

Suggest status to be sea even if the fast ice is attached to the coast during the summer.

404 Annex 3

Schofield and Sas (cont.)

Type of ice Premised characteristics

Status

Authors’ Current characteristics suggestions relative to 2013 2013 Arctic conditions

Suggest status Now ice cap extensions are should be revised to sea. melting and retreating rapidly [for example the Polynarny Glacier on Komsomlets Island (Russia)]. Many of these These features Suggest status 5. Ice shelves Many modern jurists argued have melted, should be and glacier jurists, in calved dramati- revised to sea. particular those these tongues ice features as cally and analysing the best assimilated generally issue in an retreated. The Antarctic context, to land. premises no premise their longer apperview on the tain to such characteristics of Arctic ice permanence, features. stability and attachment to the coast. 4. Ice caps – extending into sea.

Some jurists premised that these were permanent, stable and as attached as the natural prolongation of land.

Assimilated to land.

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405

Annex 4. Bibliography on Legal Aspects of Ice and Maritime Delimitation240

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J.N. Moore, “The UNCLOS Negotiations on Ice-Covered Areas,” (2010), Changes in the Arctic Environment and the Law of the Sea, (M.H. Nordquist, T.H. Heidar, and J.N. Moore, eds.), Martinus Nijhoff; M.W. Mouton, “The International Regime of the Polar Regions,” (1962), Recueil des Cours de l’Académie de Droit International., Vol. 107 – III, 169; A.N. Nikolaev, “Poblema teritorialnykh vod v mezhdunarodnomprave,” (1954), Moscow, in particular at 199–200 and 207; D.P. O’Connell, The International Law of the Sea, (1984), (I.A. Shearer, ed.), Clarendon Press, Vol. 2, at 197–198; L. Oppenheim, International Law, (1928), 14th Edition, (H. Lauterpacht, ed.), Volume 1, Part 2, Longmans at 450; Oppenheim’s International Law, (R. Jennings and A. Watts, eds.), (1992), Volume 1, Part 2, Longmans, 692–693; B. Partridge, “The White Shelf: A Study of Ice Jurisdiction,” (1961), US Naval Institute Proceedings, Vol. 87, 51; D. Pharand, “The Legal Status of Ice Shelves and Ice Islands in the Arctic,” (1969), Cahiers de Droit, Vol. 10, 461; D. Pharand, The Law of the Sea of the Arctic, with Special Reference to Canada, (1973), 181, University of Ottawa Press; D. Pharand, “The Legal Status of the Arctic Regions,” (1979), Recueil des Cours, Vol. 163, 62; D. Pharand, “The Legal Regime of the Arctic: Some Outstanding Issues,” (1984), International Journal, Vol. 39, 742; D. Pharand, Canada’s Arctic Waters in International Law, (2008), Cambridge University Press; J.R.V. Prescott and C. Schofield, “Chapter 5, The Problem of Ice-Bound Coasts,” (2005), The Maritime Political Boundaries of the World, 2nd Edition, Martinus Nijhoff, at 102–103; A. Proelss and T. Müller, “The Legal Regime of the Arctic Ocean,” (2008), Heidelberg Journal of International Law, Vol. 68, 651; F. Quilleré-Majzoub, “Glaces Polaires et Icebergs: Quid Juris Gentium,” (2006), Annuaire Français de Droit International, Vol. LII, 432; R.S. Reid, “Canadian Claims to Sovereignty over the Waters of the Arctic,” (1974), Canadian Yearbook of International Law, Vol. 12, 111; L.M. Richardson, “New Zealand’s Claims in the Antarctic,” (1957), New Zealand Law Journal, Vol. 33, 38; J. Ashley Roach and R.W. Smith, United States Responses to Excessive Maritime Claims, (1996), 2nd Edition, Martinus Nijhoff, at 340 and 456–458; L. Rolland, “Maison de jeu établie sur les glaces au-delà de la limite des eaux territoriales,” (1904), Revue Générale de Droit International Public, 340;

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R.R. Roth, “Sovereignty and Jurisdiction over Arctic Waters,” (1990), Alberta Law Review, Vol. 28, No. 4, 845; D.R. Rothwell, The Polar Regions and the Development of International Law, (1996), Cambridge University Press, Chapters 5 and 7, at 155–220 and 261–300 respectively; D.R. Rothwell, “Chapter 3: Antarctic Baseline: Flexing the Law for Ice-covered Coastlines,” (2001), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, (A.G. Oude Elferink and D.R. Rothwell, eds.), Martinus Nijhoff, 49; E.J. Sahurie, The International Law of Antarctica, (1992), Martinus Nijhoff, 380; G.S. Schatz, “Chapter 1: Transnational Science and Technology in the Absence of Defined Sovereignty: Development in the Polar Regions and in Legally Similar Situations,” (1974), in Science, Technology, and Sovereignty in the Polar Regions, Vol. 1, Lexington Books, 1; W. Schoenborn, “Nature juridique du territoire,” (1929), Recueil des Cours de la Académie de droit international de La Haye, Vol. 30, No. 5, 81; J. Brown Scott, “Arctic Exploration and International Law,” (1909), American Journal of International Law, 938; T. Scovazzi, “Chapter 4: The Baseline of the Territorial Sea: The Practice of Arctic States,” (2001), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, (A.G. Oude Elferink and D.R. Rothwell, eds.), Kluwer; W. Scuecking (Rapporteur), Report to the Council of the League of Nations on the Questions which Appear Ripe for International Regulation, the Sub-Committee of the Committee of Experts for the Progressive Codification of International Law dealing with ‘Territorial Waters’, (1927), League of Nations, Doc. 196, M70, 29; Kurt M. Shusterich, “International Jurisdictional Issues in the Arctic Ocean,” (1984), Ocean Development and International Law, Vol. 14, No. 3, 235; S.V. Sigrist, “Sovetskoe pravo v polyarnykh prostransvakh,” (1928), Rabochiy Sud, Vol. 13, 982; G. Smedal, “De l’acquisition de souveraineté sur les territoires polaires,” (1932), Rousseau, Paris (translation into English by C. Meyer under the title “Acquisition of Sovereignty over Polar Regions,” Oslo, 1931); G.W. Smith, “Sovereignty in the North: The Canadian Aspect of an International Problem,” (1966), The Arctic Frontier, (R. St. J. Macdonald, ed.), 194; B.D. Smith, “Canadian and Soviet Arctic Policy: An Icy Reception for the Law of the Sea?,” (1975–1976), Virginia Journal of International Law, Vol. 16, 609; F. Sollie, “The Polar Seas: Issues Not Dealt With in the Law of the Sea Convention. Reason and Problems,” (1984), in The 1982 Convention on the Law of the Sea. Law of the Sea Institute Proceedings, Vol.17, (A.W. Koers and B.H. Oxman, eds.), Honolulu, 654; A.H.A. Soons, “The Effects of a Rising Sea Level on Maritime Limits and Boundaries,” (1990), Netherlands International Law Review, Vol. 37, 208;

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O.S. Stokke, “A Legal Regime for the Arctic? Interplay with the Law of the Sea Convention,” (2007), Marine Policy, Vol. 31, 402; O. Svarlein, “The Legal Status of the Arctic,” (1958), Proceedings of the American Society of International Law, Vol. 52, 136; O. Svarlein, “The Sector Principle in Law and Practice,” (1960), Polar Record, Vol. 10, 248; T.A. Taracouzio, Soviets in the Arctic, (1938), Macmillan, New York; B.J. Theutenberg, “The Arctic Law of the Sea,” (1983), Nordisk Tidsskrift for International Ret, Vol. 52, 3; L. Timtchenko, Quo Vadis Arcticum? The International Law Regime of the Arctic and Trends in its Development, (1996), Osnova State University Press, Ukraine; L. Timtchenko, “The Russian Arctic Sector Concept: Past and Present,” (1997), Arctic, Vol. 50, No.1, March 1997, 29; K. Traavik and W. Østreng, “The Arctic Ocean and the Law of the Sea,” (1974), Cooperation and Conflict, Vol. 9, 53; M. Travers, Droit pénal international et sa mise en oeuvre en temps de paix et temps de guerre, (1920), Vol. 1, L. Tenin, Paris, para. 194, at 260; G. Triggs, International Law and Australian Sovereignty in Antarctica, (1986), International Legal Books Pty Ltd, Sydney, at 86–96; A.T. Uustal, Mezhdunarodno-pravovoi rezhim territorial’nykh vod, (1958), Tartu, at 184–185; A. Van der Essen, “The Application of the Law of the Sea to the Antarctic Continent,” (1983), Antarctic Resources Policy, (F. Orrego Vicuña, ed.), Cambridge University Press, at 231; A. Van der Essen, “Les régions arctiques et antarctiques,” (1985), Traité du Nouveau Droit de la Mer, (R.J. Dupuy and D. Vignes, eds.), 463; A. Van der Essen, “The Arctic and the Antarctic Regions,” (1990–1992), Handbook of the New Law of the Sea, (R.J. Dupuy and D. Vignes, eds.), Vol. 1, Chapter 10; R.V. Vartanov and A. Roginko, “New Dimensions of Soviet Arctic Policy: Views from the Soviet Union,” (1990), Annals of the American Academy of Political and Social Sciences, Vol. 512, 69; V.A. Vasilenko and I.I. Lukashuk, (1974), Mezhdunarodnoe pravo, (G.I. Tunkin, ed.), Moscow, at 262–264; C. Védrine, “Ressources en Arctique et revendications étatiques de souveraineté,” (2009), Revue Générale de Droit International Public, No. 1, 147; V.S. Vereshchetin (ed.), Kurs mezhdunarodnogo prava, (1992), Vol. 5, Nauka, Moscow; S.V. Vinogradov, “Pravovoy rezhim Arkiki,” (1994), Mezhdunarodnoe pravo, (G.I. Tunkin, ed.), Yuidicheskaya literature, 378; S.A. Vyshnepolski, “K probleme pravovogo rezhima arkticheskoy oblasti,” (1953), Sovetskoe Gosudarstvo Pravo, No. 7, 40;

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H.M. Waldock, “Disputed Sovereignty in the Falkland Islands Dependencies,” (1948), British Yearbook of International Law, Vol. 25, 311; E.H. Wall, “Polar Regions and International Law,” (1947), International Law Quarterly, Vol. 1, 54; A. Watts, International Law and the Antarctic Treaty System, (1992), Grotius, Cambridge; R. Waultrin, “La question de la souveraineté des terres arctiques,” (1908), Revue Générale de Droit International Public, Vol. 15, 78; R. Waultrin, “Le problème de la souveraineté des pôles,” (1909), Revue Générale de Droit International Public, Vol. 16, 655; M.M. Whiteman, Digest of International Law, (1963), Vol. 2, Government Printing Office, Washington, 1051–1061, and 1266–1268; G.G. Wilson, Jurisdiction and Polar Areas, International Law Situations 1937, (1939), Naval War College, 83; A.K. Zhudro (ed.), Morskoe pravo, (1964), Transport, Moscow; E.A. Zuccaro, “Iceberg Appropriation and the Antarctic’s Gordian Knot,” (1979), California Western International Law Journal, Vol. 9, 405;

chapter 16

Delineation of the Outer Limits of Canada’s Arctic Ocean Continental Shelf and Its Delimitation with Neighboring States: Does It Matter Which Comes First? Andrew Serdy*

Introduction

On 6 December 2013, the eve of the tenth anniversary for Canada of the entry into force for it of the United Nations Convention on the Law of the Sea (LOS Convention),1 Canada made its submission on the outer limit of its continental shelf where it extends more than 200 nautical miles (nm) from the territorial sea baseline to the Commission on the Limits of the Continental Shelf (CLCS or Commission) under article 76, paragraph 8 of the Convention.2 The submission was only a partial one covering Canada’s Atlantic coast, with preliminary information submitted regarding the continental shelf in the Arctic Ocean, thus postponing a submission respecting the Arctic Ocean to an indefinite * Reader in Public International Law, University of Southampton, United Kingdom. 1 U.N. Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3. Canada ratified the Convention on 7 November 2003 and through the operation of article 308(2), its entry into force for Canada followed 30 days later. 2 Id., article 76, paragraph 8: 8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II…. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding. Respecting the establishment of the Commission on the Limits of the Continental Shelf (CLCS), see Annex II to the LOS Convention and the website for the CLCS at http://www.un. org/depts/los/clcs_new/clcs_home.htm. LOS Convention, article 4 of Annex II provides that: Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond 200 miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004284593_017

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date in conformity with the 2008 decision at the 18th Meeting of the States Parties to the Convention.3 The making of the Arctic part of the submission, when it occurs, will not be the end of the article 76 process, only of its first stage. The full process will not be complete for Canada until quite some time after that, and it is possible that, before such completion, resource exploitation considerations or other factors may make Canada keen to settle the boundaries between its continental shelf and those of its neighbors. Must Canada know precisely its continental shelf entitlements beyond 200 nautical miles before overlapping entitlements with its neighbors can be delimited? Two maritime delimitation cases decided in 2012, one by the International Court of Justice and the other by the International Tribunal for the Law of the Sea (ITLOS) offer contradictory answers. Before evaluating these, however, it is necessary to set out how delimitation affects the seaward and lateral extent of the continental shelf.

Background—The Substantive and Procedural Rules of LOS Convention Article 76

Canada and all its actual or potential maritime neighbors, with the exception of the United States—that is, Denmark (in respect of Greenland), France (in respect of Saint-Pierre-et-Miquelon) and the Russian Federation—are party to the LOS Convention and all but France have Arctic Ocean frontages.4 3 “Decision regarding the workload of the Commission on the Limits of the Continental Shelf and the ability of States, particularly developing States, to fulfil the requirements of article 4 of annex II to the United Nations Convention on the Law of the Sea, as well as the decision contained in SPLOS/72, paragraph (a),” U.N. Doc SPLOS/183, 20 June 2008, subparagraph 1(a), available on the website of the U.N. Division for Ocean Affairs and the Law of the Sea (DOALOS) at http://www.un.org/Depts/los/index.htm. This in effect postpones the ten-year deadline in the previous footnote by accepting that it can be met by depositing within that timeframe not an actual submission, but merely “preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles and a description of the ­status of preparation and intended date of making a submission.” Id. The Executive Summary of Canada’s submission is at http://www.un.org/depts/los/clcs _new/submissions_files/can70_13/es_can_en.pdf and the notification of postponement of the Arctic Ocean portion, pursuant to the 2008 decision of the States parties to the Convention is at http://www.un.org/depts/los/clcs_new/submissions_files/preliminary/ can_pi_en.pdf, both available on the CLCS website, supra note 2. 4 The remaining Arctic Ocean State, Norway, has received recommendations from the CLCS. See: “Summary of the Recommendations of the Commission on the Limits of the Continental

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Article 76 of the LOS Convention opens with a definition of the continental shelf: 1. The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. The term ‘continental margin’ is subsequently defined in paragraph 3 of article 76: 3. The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof. Contrary to the implication of paragraph 1, the outer limit of the continental shelf does not coincide with the edge of the continental margin when it lies beyond 200 nm from the baseline. This is made clear in paragraph 2 of article 76, which points to the more precise formula later in the same article: 2. The continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6. Paragraphs 4 to 6 (as well as 7) provide the formula, however, only the process for the determination of the outer limit is of concern herein. No special procedure is required where the application of the rules in paragraphs 4 to 7 produce a continental shelf whose outer limit is nowhere more than 200 nm from the baseline from which the breadth of the territorial sea is measured, thanks to the automatic entitlement in paragraph 1 to a continental shelf of 200 nm. By contrast, where the coastal State takes the view that the application of the rules in paragraphs 4 to 7 leads to a continental shelf extending more than Shelf in regard to the Submission made by Norway in respect of Areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea on 27 November 2006,” available on the CLCS website, supra note 2. None of the commonly cited prognoses of Canada’s continental shelf entitlements suggests that they extend as far as the outer limit thus established for Norway.

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200 nm from its baselines, paragraph 8 of article 76 contemplates the making of a submission to a specially created body, the CLCS. While the original intention of some of the drafters may have been that the making of a submission and the receipt of recommendations from the CLCS was a condition precedent to the coastal State’s entitlement to a shelf area beyond 200 nm, this is now not the dominant view. This casts doubt on the correctness of the approach of the Court of Arbitration that decided the Canada/France delimitation in 1992, declining to pronounce on the boundary beyond 200 nm because “[u]n tribunal ne peut pas parvenir à une décision en supposant, par pure hypothèse, que de tels droits existeront en fait.”5 ITLOS held in the 2012 Bay of Bengal Case that it had jurisdiction to delimit the boundary beyond 200 nm,6 despite both States concerned having not yet received recommendations on their respective submissions. It should also be noted that ITLOS expressly rejected the argument that it had no jurisdiction to delimit a boundary beyond 200 nm until the CLCS had provided recommendations regarding the entitlements of the disputant parties.7 Only Judge Ndiaye would have preferred the boundary to stop at the 200-nm line, or, optimally, for ITLOS to adjourn its proceedings and itself ask the CLCS to examine and make recommendations on Myanmar’s submission before completing the remainder of the delimitation.8 ITLOS gave as one of the reasons for its decision on its jurisdiction that “Article 77, paragraph 3, of the Convention confirms that the existence of entitlement does not depend on the establishment of the outer limits of the continental shelf by the coastal State.”9 Earlier, in 2006, an arbitral tribunal constituted under LOS Convention, Annex VII to settle the maritime boundary dispute between Barbados and Trinidad and Tobago had reached the same conclusion in principle,10 but the boundary it drew for the parties did not in the end go beyond 200 nm from either of their baselines. 5 6

7 8 9 10

Affaire de la délimitation des espaces maritimes entre le Canada et la République française, U.N.R.I.A.A., vol. XXI, 265, at 293, paragraph 81. Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, [2012] ITLOS Reports 4, at 108, paragraphs 360–363 and at 120, paragraph 410. Id., at 109–115, paragraphs 369–394. Bay of Bengal Case, Separate Opinion of Judge Ndiaye, [2012] ITLOS Reports 151, at 33–37, paragraphs 98–112. Bay of Bengal Case, supra note 6, at 120, paragraph 409. Arbitration between Barbados and Trinidad and Tobago, relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between them, (Barbados v. Trinidad and Tobago), U.N.R.I.A.A., vol. XXVII, 147, at 209, paragraph 217.

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By contrast, in the subsequent International Court decision in Nicaragua v. Colombia,11 the Court recalled its own statement in the earlier 2007 case of Nicaragua v. Honduras, where it had stated that any claim of continental shelf rights beyond 200 miles [by a State party to the LOS Convention] must be in accordance with Article 76 of UNCLOS and reviewed by the Commission on the Limits of the Continental Shelf…12 Referring to the object and purpose of the LOS Convention, which the Court deduced from its preamble as being the intention to establish “a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources,” the Court went on to hold that “the fact that Colombia is not a party thereto does not relieve Nicaragua of its obligations under Article 76 of that Convention.”13 The Court appears to suggest that, even in a dispute with a non-party concerning delimitation of the continental shelf beyond 200 nm, a party to the LOS Convention must have gone through the article 76 process before the Court will be prepared to delimit that portion of the shelf. The Nicaragua v. Colombia Case, however, is readily distinguishable from the Bay of Bengal Case, as in its next paragraph the Court noted that Nicaragua had not (unlike both Bangladesh and Myanmar) made a submission to the CLCS, but had only submitted ‘preliminary information’ in conformity with the 2008 decision at the 18th Meeting of the States Parties,14 that was sketchy in terms of the location of the foot of slope upon which it would rely in its eventual submission. Significantly, Judge Donoghue15 and the two judges ad hoc, both of whom are serving or former ITLOS judges,16 though agreeing with the majority judgment that there was too little factual evidence to support 11 12 13 14 15 16

Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, [2012] I.C.J. Reports 624. Territorial and Maritime Dispute in the Caribbean Sea (Nicaragua v. Honduras) [2007] I.C.J. Reports 659, at 759, paragraph 319. Nicaragua v. Colombia, supra note 11, at 668–669, paragraph 126. “Decision regarding the workload of the Commission,” supra note 3. Nicaragua v. Colombia, Separate Opinion of Judge Donoghue, [2012] I.C.J. Reports 751, at 756–759, paragraphs 17–30. Nicaragua v. Colombia, Declaration of Judge ad hoc Mensah, [2012] I.C.J. Reports 762, at  762–766, paragraphs 2–12 and Declaration of Judge ad hoc Cot, id., 768 at 771, paragraphs 18–20.

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findings about a continental shelf, dissented from the apparent closure of the door to any possibility of the Court delimiting a continental shelf boundary beyond 200 nm before the article 76 CLCS process was completed. The International Court’s approach is unconvincing for two reasons. One is that it flies in the face of the reasonably extensive State practice in the form of ten17 treaties delimiting shelf areas beyond 200 nm which have been entered into before the article 76, paragraph 8 process had been completed, or in most cases even embarked upon: • • • • •

Australia/France18 Australia/New Zealand19 Australia/Papua New Guinea20 Australia/Solomon Islands21 Barbados/France22

17

18 19 20

21 22

Four more treaties are identified by B.M. Magnússon, “Outer Continental Shelf Boundary Agreements,” International and Comparative Law Quarterly 62 (2013): 345, at 350–351: Treaty fixing the maritime boundaries between the Republic of the Gambia and the Republic of Senegal, 4 June 1975, available on the DOALOS website, supra note 3, articles 1 and 2; 361–363: Agreement between the United Republic of Tanzania and the Republic of Kenya on the delimitation of the maritime boundary of the exclusive economic zone and the continental shelf, 23 June 2009, soon to be published in U.N.T.S. vol. 2603, meanwhile in Law of the Sea Bulletin 70 (2009): 54, article 2; 365–367: Treaty [between Argentina and Uruguay] concerning the Río de la Plata and the corresponding maritime boundary, 19 November 1973, 1295 U.N.T.S. 293, Article 70 (though Argentina takes the view that the boundary stops at 200 nm); 367–368: Maritime Delimitation Treaty [between Brazil and France], 30 January 1981, 1340 U.N.T.S. 3, Article 1(1). These all simply provide for parallels of latitude or a defined line of express or implied azimuth to delimit the entire continental shelf, only implicitly including the part of it beyond 200 nm from the baseline. Agreement on Maritime Delimitation between Australia and the French Republic, 4 January 1982, 1329 U.N.T.S. 107. Treaty between Australia and New Zealand Establishing Certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries, 25 July 2004, 2441 U.N.T.S. 235. Treaty between Australia and Papua New Guinea Concerning the Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, 18 December 1978, 1429 U.N.T.S. 207. Agreement between Australia and the Solomon Islands Establishing Certain Sea and Seabed Boundaries, 13 September 1988, 1536 U.N.T.S. 285. Agreement between the French Republic and Barbados on the Delimitation of the Maritime Space between France and Barbados, 15 October 2009, soon to be published in U.N.T.S. vol. 2663, meanwhile by France as an annex to Décret n° 2010–68 du 15 janvier 2010 portant publication de l’accord entre le Gouvernement de la République française et le Gouvernement de La Barbade relatif à la délimitation des espaces maritimes entre la France

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Ireland/United Kingdom23 Mexico/United States24 Norway/Russia25 Russia/United States26 Trinidad and Tobago/Venezuela27

This State practice lends weight to the conclusion of ITLOS that it had jurisdiction to delimit that part of the boundary beyond 200 nm from the baselines of either Bangladesh or Myanmar, as a court is merely doing for the disputant parties what they could have agreed to do for themselves. Conversely, the approach of the International Court implicitly assumes either that it would have been impermissible for the parties before it (and indeed all States not having seen the CLCS process through to completion) to delimit boundaries beyond 200 nm by agreement, despite the State practice set out above, or, if they could, that there is something special about proceedings before the Court that disables it from acting on the parties’ behalf in such circumstances. If the latter, the Court makes no attempt to identify what those special qualities might be. The other reason the International Court’s approach is unconvincing is one of practicality, as it takes no account of the obstacle to the consideration of submissions posed by the CLCS’s Rules of Procedure and the failure of most States to react against this.28 Indeed, now that Nicaragua has made a full submission to the CLCS in support of an outer limit to its continental shelf along the lines of the one put before the Court—running inside Colombia’s 200-nm line—Colombia, though a non-party to the LOS Convention, fearing prejudice

23 24

25

26

27 28

et La Barbade, signé à Bridgetown le 15 octobre 2009, at http://www.legifrance.gouv.fr/ affichTexte.do?cidTexte=JORFTEXT000021712346. Agreement concerning the Delimitation of Areas of the Continental Shelf between the Two Countries (Ireland/United Kingdom), 7 November 1988, 1564 U.N.T.S. 217. Treaty between the United States and the United Mexican States on the Delimitation of the Continental Shelf in the Western Gulf of Mexico beyond 200 Nautical Miles, 9 June 2000, 2143 U.N.T.S. 417. Treaty between Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 September 2010, to be published in U.N.T.S. vol. 2791, meanwhile in Law of the Sea Bulletin 77 (2012): 24. Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, 1 June 1990, not in force but applied provisionally, (1990), 29 I.L.M. 941. Treaty on the Delimitation of Marine and Submarine Areas (Trinidad and Tobago/ Venezuela), 18 April 1990, 1654 U.N.T.S. 293. Rules of Procedure of the Commission on the Limits of the Continental Shelf, U.N. Doc. CLCS/40/Rev.1, 17 April 2008, available on the CLCS website, supra note 2.

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to the delimitation of its continental shelf, has objected to the submission.29 The Commission is likely to give effect to that objection, despite its inherent implausibility, and thus decline to act any further until the dispute is resolved. This would produce a stalemate, with the submission unable to proceed because of the outstanding delimitation, and vice versa. Perhaps the International Court will make allowances for this situation, as ITLOS did in the Bay of Bengal Case where each party had objected to the other’s submission,30 but this cannot be known with certainty. There is some prospect, however, that since the Nicaragua v. Colombia Case was not only the first one before the International Court in which one party was arguing for a continental shelf extending beyond 200  nm at the expense of the other, but also involved a proposed boundary running within 200 nm of the other party’s coast, any future expression of the Court’s reluctance to entertain assertions of entitlement to a continental shelf beyond 200 nm not included in a submission to the CLCS may be less stark than the one on display in that case. Support for this observation arises from several States parties having made a point of noting that the LOS Convention does not specify the consequences of not making a submission,31 and from a Committee of the International Law Association having concluded that the coastal State’s entitlement to the part of its continental shelf beyond 200 nm is unaffected by not making a submission.32 In effect, the words “or on the 29

30 31 32

Nicaragua made its submission on 24 June 2013 and followed it up with an application to the International Court on 16 September 2013 to delimit the continental shelf between itself and Colombia, but Colombia’s counter-memorial is not due until late 2015, so a judgment should not be expected before 2016 at the earliest. For Nicaragua’s submission and Colombia’s objection to it, see the CLCS website, supra note 2, and for the renewed litigation with Colombia, see the website of the International Court of Justice at http:// www.icj-cij.org. Bay of Bengal Case, supra note 6, at 114–115, paragraphs 387–394. See also: the argument of Bangladesh on this point, summarized at 107, paragraphs 357 and 358. “Report of the Eleventh Meeting of States Parties,” U.N. Doc. SPLOS/73, 14 June 2001 at 12, paragraph 75, available on the DOALOS website, supra note 3. International Law Association, “Report of the Committee on the Legal Issues of the Outer Continental Shelf,” in International Law Association, Report of the Seventy-Second Conference (Toronto 2006), 215, at 238–239, Conclusion 15 and supporting Explanatory Note. See also: T.L. McDorman, “The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World,” International Journal of Marine and Coastal Law 17 (2002): 301, at 320; S.V. Suarez, The Outer Limits of the Continental Shelf: Legal Aspects of their Establishment (Berlin: Springer, 2008), at 183; and F.M. ArmasPfirter, “Submissions on the Outer Limit of the Continental Shelf: Practice to Date and

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making of a submission under article 76, paragraph 8” must now be read into article 77, paragraph 3.33 All of this has the effect of making the submission procedure one of establishing the precise location of the outer limit, which exists irrespective of when or even whether a submission is made. Hence, the only consequence of not making a submission would be that the coastal State does not obtain the benefit of certainty of its outer limit becoming “final and binding” vis-à-vis other States as per the last sentence of article 76, paragraph 8.34 If, accordingly, there is no obligation for a coastal State to make a submission at all, it follows that, should it decide to make one, as Canada has, there can equally be no duty to do so before delimiting its continental shelf with opposite and adjacent States. This is not to say, however, that there is no risk in going down the path of delimiting first and making a submission to the CLCS later. Nor are these the only courses of action open to Canada in the Arctic. Under paragraph 3 of Annex I to the CLCS Rules of Procedure, another option would be to make a submission for a portion of its continental shelf in order not to prejudice…the delimitation of boundaries between States in any other portion or portions of the continental shelf for which a submission may be made later, notwithstanding the provisions regarding the ten-year period established by article 4 of Annex II to the Convention.35 Some form of partial submission excluding areas which might be subject to an overlapping entitlement of one of Canada’s neighbors until a boundary agreement is achieved has potential. To the extent that it sets aside the ten-year rule,

33

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35

Some Issues of Debate,” in Law, Technology and Science for Oceans in Globalisation, ed. D. Vidas (Leiden/Boston: Martinus Nijhoff Publishers, 2010), 477, at 492. Stress is laid on the LOS Convention, supra note 1, article 77 having this effect in, for example, the Notes accompanying the submissions or preliminary information of the seven claimant States in Antarctica. The submissions and preliminary information of Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom are available on the CLCS website, supra note 2. The Arabic, Chinese, English, French and Spanish texts of LOS Convention, supra note 2, article 76(8) are ambiguous on the question of whether the outer limit thus established is binding only on the submitting State or erga omnes partes, but the Russian text comes down clearly on the side of the latter: “для всех обязательны” (binding for all). Thanks are due to Aref Fakhry and Chen Ying-Ting who confirmed this for the Arabic and Chinese texts respectively. CLCS Rules of Procedure, supra note 28, Annex I, paragraph 3.

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however, paragraph 3 of Annex I to the Rules of Procedure lacks support in article 76. This could leave Canada vulnerable if, for example, the United States were later to accede to the LOS Convention and insist on a rigorous application of that rule.36 The same applies to the 2008 States parties’ decision, which, though in effect an amendment of the relevant provision of the LOS Convention, was not adopted in conformity with the procedural requirements of either article 312 or 313. Had these procedures been followed, attention would need to turn to article 316. This provision makes a distinction between two categories of amendments. One is subject to the default consequences of the law of treaties, which provides that the amended treaty is in force only between pairs of parties that have both accepted the amendment, while the original text continues to bind all other pairs (paragraph 4). The other, more limited category of amendments (into which changes to the continental shelf provisions do not fall), once accepted by a sufficient proportion of parties, impose the amended text also on parties that have yet to accept them and leave any State acceding thereafter no choice but to be likewise bound by the amendment (paragraph 6). As there is no indication in the 2008 decision that the States parties turned their minds to this matter, it must be presumed that, to the extent that their decision functions as a quasi-amendment, there was no intention on their part to displace the default consequences of article 316, paragraph 4. Should Canada opt to make a partial submission, it would need to decide how much of the Arctic Ocean frontage to exclude so as to avoid “prejudic[ing] the delimitation.” A substantial part of the shelf area which Canada would include in an Arctic Ocean submission is subject to delimitation with the United States, Denmark and possibly Russia. Thus, there may be little of Canada’s continental shelf beyond 200 nm left upon which to build a partial submission. A similar issue would have arisen in the Atlantic Ocean part of Canada’s submission, as no continental shelf boundaries beyond 200 nm are in place with either the United States in the outer Gulf of Maine, or, if applicable, with France in respect of the area off Newfoundland and Saint-Pierre-­etMiquelon included in France’s preliminary information of 8 May 2009,37 36

37

Australia was motivated by these considerations in 2004 in making a full rather than a partial submission. See: A. Serdy, “Towards Certainty of Seabed Jurisdiction beyond 200 Nautical Miles from the Territorial Sea Baseline: Australia’s Submission to the Commission on the Limits of the Continental Shelf,” Ocean Development & International Law 36 (2005): 201, at 204. France, Preliminary Information—Saint-Pierre-et-Miquelon, 8 May 2009, available on the CLCS website, supra note 2, estimating a now passed date of 2013 for the submission proper. The coordinates of an indicative outer limit line are annexed at 5–10.

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but  this did not deter Canada from including the entirety of these areas in its submission.

Clues in the LOS Convention

The relationship between the delineation of the outer limit of the continental shelf under article 76 and its delimitation with neighboring States is the subject of two provisions within the LOS Convention. Paragraph 10 of article 76 declares: “The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.”38 This is a consequence of the fact that the rules in paragraphs 1 to 7 of article 76 on the extent of the continental shelf frequently have the effect of placing the same area within the outer limits of the continental shelf entitlements of two or more States. The article 76 process is expressly to be of no assistance in determining where the boundary delimiting the continental shelf of one such State from that of an opposite or adjacent State should run. That is left to article 83: 1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. The combination of article 76, paragraph 10 and article 83, paragraph 1 does not mean that two or more States can, by delimiting inter se their continental shelves, escape the consequences of the CLCS submission process or of electing not to go through that process. States cannot act in concert to include within their continental shelves areas to which none of them acting individually is entitled under article 76, so that they fall within the seabed area beyond national jurisdiction governed by Part XI of the LOS Convention. This has been expressly acknowledged by the Commission through the report of its Chair to the States parties to the LOS Convention in 2007, in which, albeit in the context of a joint submission by four States, the CLCS took care to underline that a jointly submitted outer limit line is not valid if landward of it there exists any

38

In a similar vein, LOS Convention, supra note 1, Annex II, article 9 lays down that “[t]he actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts.”

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area to which none of the submitting States would have been individually entitled under article 76.39 Article 76, paragraph 10 serves as a reminder that delimitation of an area of continental shelf beyond 200 nm presupposes an overlap of entitlements of the concerned States to that area. In strict logic, therefore, only once the CLCS process (or a decision not to engage in that process at all) is complete for each of the interested States should there follow the negotiation or adjudication of the boundary to resolve the overlap. As was seen above, however, State practice departs from this where the steps occur in reverse order—delimitation preceding the article 76, paragraph 8 submissions. Given the announced delay to the portion of Canada’s submission relating to the Arctic Ocean continental shelf, it is still possible for a bilateral delimitation of that shelf between Canada and any of its neighbors to occur before Canada’s submission reaches the CLCS. One factor Canada will want to bear in mind is the uncertain length of time it will have to wait before the CLCS issues its recommendations. Although there are 44 submissions in the queue ahead of Canada’s Atlantic one,40 the report of a recent session of the CLCS avowed an intention to have up to six subcommissions operating at once instead of the three or four hitherto considered to be the feasible maximum,41 which may significantly reduce the time until both parts of Canada’s submission are considered. That effect may be accelerated by the fact that a large number of the submissions in the queue ahead of Canada’s are ones which the CLCS has ­disabled itself from proceeding with because of declared disputes under 39

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“Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission,” U.N. Doc. CLCS/56, 4 October 2007, at 6, paragraph 28, available on the CLCS website, supra note 2, states that “the total area of continental shelf resulting from the outer limits of the continental shelf proposed in a joint submission cannot be larger than the sum of the individual areas of continental shelf resulting from the outer limits of the continental shelf that each of the States would have proposed if they had made separate submissions.” Counting both original and revised submissions, Canada’s submission on the Atlantic Ocean was the 72nd to have been made to the CLCS, with recommendations having concluded the process (subject to any further revised submissions under article 8 of Annex II to the LOS Convention) for 18 of these, and a further nine under examination at the time by subcommissions pursuant to article 5 of that Annex. Canada was thus 45th in the queue it thereby joined. The actual position for the outstanding Arctic Ocean portion of the submission will depend on the balance between any further submissions and recommendations in the interim. “Progress of Work in the Commission on the Limits of the Continental Shelf: Statement by the Chair,” U.N. Doc. CLCS/76, 5 September 2012, at 4, paragraph 13, available on the CLCS website, supra note 2.

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subparagraph 5(a) of Annex I to its Rules of Procedure.42 It cannot be ruled out that Canada and one or more of its neighbors may wish to delimit their Arctic Ocean or other continental shelf boundary before either or both of them have received recommendations from the Commission.

The Risk

Though there is nothing unlawful about treaties delimiting the continental shelf beyond 200 nm in advance of the article 76, paragraph 8 process, the parties to such treaties do expose themselves to the risk that their subsequent submissions to the CLCS may result in recommendations to the effect that seabed on one or both sides of the boundary is outside the greatest possible extent of the continental shelf of the party concerned. This could lead to a difficult renegotiation of the treaty or a unilateral demand for such renegotiation resting upon a claim under article 48, paragraph 1 of the Vienna Convention on the Law of Treaties43 that the treaty has ceased to be, or never was, binding, as it was based on a shared factual error as to what were the primary overlapping entitlements needing to be delimited. Such a demand might well be resistible under paragraph 2 of the same article: Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error. To avoid trouble, though, Canada or its neighbors may take the view that it is better not to open the way to plausible grounds for invalidating a treaty, even if they are not ultimately sustainable. Even if an error of this kind occurs, as long as each part of the area delimited is within the CLCS-recommended outer limit of at least one of the parties, they may agree expressly or tacitly that the treaty can be left unamended on the footing that the party whose continental shelf pursuant to  the recommendation 42 43

CLCS Rules of Procedure, supra note 28; see further below, “The CLCS Rules of Procedures on Disputes.” Vienna Convention of the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, article 48, paragraph 1: 1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty.

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would have not reached the negotiated boundary can nonetheless continue to exercise continental shelf rights there, derived from those of the other party which the CLCS has endorsed. This is what seems to have occurred in relation to a small area on Australia’s side of its boundary with New Zealand, which was submitted to the CLCS as part of the Macquarie Ridge region but which fell within an area that the CLCS did not recommend should form part of Australia’s continental shelf.44 Because of the bilateral boundary treaty between Australia and New Zealand, the area in question was not included in New Zealand’s submission, but the information submitted by New Zealand in support of its entitlement as far as the boundary would have been sufficient to justify an outer limit including the area in question within New Zealand’s continental shelf.45 This brings about a situation parallel to that in the “special areas” created by the 1990 United States-Russia maritime boundary agreement46 and the 2010 Russian-Norwegian maritime boundary treaty,47 in which one party permits the other to exercise the first party’s rights as against third States in the area to which the other party has no entitlement under the LOS Convention, but the first party does. No third State is known to have protested against either of these dispensations. 44

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The Commission did not accept the construction of the bridging line to the 200-nm line on which point MAC-ECS-431a of Australia’s submitted outer limit lies. “Summary of the Recommendations of the Commission on the Limits of the Continental Shelf (CLCS) in regard to the Submission made by Australia on 15 November 2004,” at 22, paragraph 77, available on the CLCS website, supra note 2. For criticism of this, see: A. Serdy, “The Commission on the Limits of the Continental Shelf and its Disturbing Propensity to Legislate,” International Journal of Marine and Coastal Law 26 (2011): 355, at 373–375. See: “Summary of the Recommendations of the Commission on the Limits of the Continental Shelf (CLCS) in regard to the Submission made by New Zealand 19 April 2006,” at 53, paragraph 172 and at 54, paragraphs 177 and 178, available on the CLCS website, supra note 2. That is, the roughly triangular area bounded by (a) the treaty boundary from point ANZ53 on the 200-nm line from Macquarie Island to point S001 of the outer limit of New Zealand’s continental shelf, where it intersects the arc of radius 60 nm from the relevant foot-of-slope point on New Zealand’s continental margin, (b) the westward continuation of that arc on Australia’s side of the boundary until its intersection with the 200-nm line from Macquarie Island, depicted id., at 62 (Figure 3) and (c) the last-mentioned line from that intersection back to the starting point ANZ53. Point S001 by definition should coincide with Australia’s point MAC-ECS-431a mentioned in the previous footnote, but their coordinates are very slightly different; the discrepancy appears to be caused by the New Zealand coordinates being rounded up to the next hundredth of a second, so that the two are, by the author’s calculations, only around 35 centimeters apart. U.S.-U.S.S.R. Agreement, supra note 26, article 3. Norway-Russia Agreement, supra note 25, article 3.

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Canada could, therefore, conclude treaties with any or all of the adjacent and opposite States delimiting their Arctic Ocean continental shelf boundaries before one or both States have made submissions to, or obtained recommendations from, the Commission. The States concerned, though, may resist this until their own submissions are made—in the Arctic, Denmark’s ten years in respect of Greenland run until late 201448—but the timing of Russia’s new or revised submission in response to the interim recommendations arising out of its 2001 submission49 remains uncertain. This may be less of an issue for the United States, given that it is unclear when, if ever, it will be able to make its submission as a party to the LOS Convention. Instead of waiting, a different option, utilized by Denmark, Iceland and Norway in 2006, and again in 2013 by Denmark and Iceland, is to negotiate a provisional boundary subject to the article 76, paragraph 8 process for each State, on completion of which treaties definitively settling their boundaries will be concluded.50

The United States as a Non-Party to the LOS Convention

How much of the above detail is applicable to the United States as a non-party to the LOS Convention? Initially, it was not clear whether President Reagan’s statement of 1983 indicating that the United States would respect the provisions of the Convention regarding “traditional uses of the ocean, such as navigation and overflight”51 included the continental shelf and more particularly 48 49

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Denmark ratified the LOS Convention on 16 November 2004, with the consequences set out at supra note 2. For a brief summary, see: “Oceans and the law of the sea: Report of the Secretary-General, Addendum,” U.N. Doc. A/57/57/Add.1, 8 October 2002, at 9–10, paragraphs 38–41, available on the DOALOS website, supra note 3. See: Agreed Minutes on the Delimitation of the Continental Shelf beyond 200 Nautical Miles between the Faroe Islands, Iceland and Norway in the Southern Part of the Banana Hole of the Northeast Atlantic, 20 September 2006, available on the Norwegian Government website at http://www.regjeringen.no/nb/dep/ud/dok/lover_regler/ retningslinjer/2006/Agreed-Minutes.html?id=446839; Agreed Minutes on the Delim­ itation of the Continental Shelf beyond 200 Nautical Miles between Greenland and Iceland in the Irminger Sea, 16 January 2013, available on the Icelandic foreign ministry website at http://www.utanrikisraduneyti.is/media/thjodrettarmal/Agreed-Minutes -og-vidaukar.pdf. United States Ocean Policy: Statement by the President, March 10, 1983, reproduced at (1983), 22 I.L.M. 464.

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the process of establishing its outer limit through the CLCS. In 1987, however, the United States published a statement of policy indicating that it intended to use paragraphs 1 to 7 of article 76 to delineate its outer limit, which it said reflected the applicable customary international law, and that it would deposit charts with the U.N. Secretary-General to put other States on notice of the spatial extent of its rights.52 The United States is now undertaking this work, which will put it in a position to make its own submission to the CLCS when (or if) it accedes to the LOS Convention.53 Although the hopes of an early United States accession raised by the re-election of President Obama and the retention by his party of a majority in the Senate at least until the end of 2014 appear to be fading, the 1987 policy statement makes it safe to proceed on the basis that the article 76 formula applies in full to the United States, which will eventually make a submission to the CLCS. In the Arctic Ocean, such a submission is likely to include the Chukchi Plateau, identified in 1980 by the United States as an area of interest.54

The CLCS Rules of Procedure on Disputes

By delimiting maritime boundaries with its neighbors in advance of their submissions to the CLCS, Canada could avoid a different risk—the possibility that one or more of those neighbors may invoke the CLCS Rules of Procedure to prevent the CLCS considering Canada’s submission. Subparagraph 5(a) of Annex I to those Rules provides: 52

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“United States Policy Governing the Continental Shelf of the United States of America,” reproduced in J.A. Roach and R.W. Smith, Excessive Maritime Claims, 3rd ed. (Leiden/ Boston: Martinus Nijhoff Publishers, 2012), at 189. The International Court has since confirmed in the Nicaragua v. Colombia Case, supra note 11, at 666, paragraph 118, that LOS Convention, supra note 1, article 76, paragraph 1 represents customary international law, allowing the shelf to extend to the outer edge of the continental margin, but found it unnecessary to decide whether article 76, paragraphs 2 to 7 had the same status. It is submitted, however, that it would be relatively easy to deduce customary status for paragraph 3, given its close connection to paragraph 1 through its function of defining the term ‘continental margin’ in that paragraph. See: U.S. Department of State, “Defining the Limits of the U.S. Continental Shelf,” available at http://www.state.gov/e/oes/continentalshelf, though the text carefully avoids any ­reference to making such a submission. Statement of Elliot Richardson, U.S. Delegate, U.N. Doc. A/CONF.62/SR.128, 128th Plenary Meeting, 3 April 1980, reproduced in Official Records of the Third United Nations Conference on the Law of the Sea, Vol XIII, 32, at 43, paragraph 156.

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5. (a) In cases where a land or maritime dispute exists, the Commission shall not consider and qualify a submission made by any of the States concerned in the dispute. However, the Commission may consider one or more submissions in the areas under dispute with prior consent given by all States that are parties to such a dispute. The International Law Association has argued that there is no need for States to invoke subparagraph 5(a). This is because paragraph 10 of article 76 guarantees that submissions are without prejudice to bilateral maritime boundaries, that is, States are not in a race to make a submission over a given area, and the CLCS will entertain not just the first but also all subsequent ones. The CLCS will not decide which of the States has the better right to the area but will look only at whether each State’s submission meets the threshold test of falling within its own primary entitlement. In other words, as the two submissions are considered independently of each other, the outcome of one does not influence the outcome of the other.55 While the present author has argued that subparagraph 5(a) of Annex I is contrary to article 76, paragraph 10 and that nothing in the LOS Convention supports the veto it gives to States over the progress through the CLCS of other States’ submissions,56 it must be conceded that only two States, Japan and Guyana— whose submissions are stalled as the result of the invocation of subparagraph 5(a) by China and Korea in the case of Japan, and by Venezuela in the case of Guyana—have thus far made this argument.57 The CLCS has not yet had to react to Guyana’s argument, but dismissed Japan’s cursorily without meaningfully engaging with it.58 This makes it doubtful whether, if any of Canada’s Arctic neighbors were to invoke subparagraph 5(a) in relation to Canada’s submission and Canada were to reply with a challenge to the legal foundation of that provision, the CLCS, which to date has not been known for the legal rigor of its approach, could be convinced by such an argument to override that veto. Whether the fact that the United States is not party to the LOS Convention makes a difference will in due course be ascertained once the CLCS deals with the veto of Guyana’s antagonist, Venezuela, also a non-party. Current indications are that there is nothing to suggest that the CLCS will disregard Venezuela’s objection. 55 ILA Committee Report, supra note 32, at 238, Explanatory Note to Conclusion 14. 56 Serdy, supra note 44, at 362–367. 57 Japan’s Note Verbale is referred to in “Summary of Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission made by Japan on 12 November 2008,” at 4, paragraph 19, available on the CLCS website, supra note 2, where Guyana’s communication too is to be found. 58 Id., at 5, paragraph 20.

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As matters stand, therefore, each of Canada’s neighbors may consider that it has a veto over the CLCS’s consideration of Canada’s submission. Invocation by any of them of subparagraph 5(a) of the CLCS Rules of Procedure would block the establishment of a final and binding outer limit for Canada’s continental shelf in the Arctic Ocean. While reasonably hoping that its neighbors will recognize that, in line with the dictum of the International Court in the Jan Mayen Case, it is merely submitting, subject to delimitation, “the areas which [it] would have been able to claim had it not been for the presence of the other State,”59 it would be in Canada’s interest to attempt to reach a prior agreement with each of its neighbors to ensure that one party does not object to the other’s submission under subparagraph 5(a). It is common that States believing their entitlements to a continental shelf beyond 200 nm from their baselines to overlap agree in advance to the CLCS’s consideration of each other’s submissions.60 Denmark, Russia and France are each party to one or more such pacts, whose effect is to restore the prima facie position that would prevail under article 76, paragraph 10 in the absence of Annex I, subparagraph 5(a) of the Rules of Procedure. In other cases, without explicit reference to any bilateral pact, States have made a point of advising the CLCS that they do not object to a submission covering an area in which they consider themselves to have overlapping entitlements of their own.61 The notes of non-objection lodged by the United States in respect of two submissions, those of Japan62 and Cuba,63 fall into this second category. Since the United States has good political relations with Japan but is on strained terms with Cuba, yet treated them identically, it may well do the same for Canada, with or without prompting.

59 60

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Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), [1993] I.C.J. Reports 38, at 59, paragraph 64. An incomplete list includes: Norway in relation to the Submission of Russia, Note of 20 March 2002; Somalia in relation to the Submission of Kenya, Letter of 19 August 2009; Seychelles in relation to the Submission of Tanzania, Note of 10 September 2012; Trinidad and Tobago in relation to the Submission of Suriname, Note of 29 April 2009; and Ghana in relation to the Submission of Côte d’Ivoire, Note of 28 July 2009, all available on the CLCS website, supra note 2. Examples are Canada and Denmark (both by implication) in relation to the submission of Russia, Notes of 18 January 2002 and 4 February 2002 respectively, available on the CLCS website, supra note 2. United States, Note of 22 December 2008, available on the CLCS website, supra note 2. United States, Note of 30 June 2009, available on the CLCS website, supra note 2.

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Conclusion It is evident that Canada’s submission to the CLCS pursuant to article 76, paragraph 8 does not complete the process, but merely marks the transition from one phase of it to the next, with no clear indication when the spatial extent of Canada’s rights over its continental shelf beyond 200 nm in the Arctic Ocean and elsewhere will be definitively determined. It remains open to Canada to delimit its continental shelf boundaries beyond 200  nm from its baselines with one or more of its neighbors before receiving the recommendations from the CLCS, should it see advantage in this and find the risks outlined above acceptable, and if the neighbors are willing. The risks that exist can be minimized by making the delimitation provisional pending the finalizing of the article 76, paragraph 8 process, along the lines of the precedent provided by Denmark, Norway and Iceland in 2006 and 2013.64 64 See supra note 50.

chapter 17

A Note on Arctic Information Platforms and International Law Betsy Baker* This contribution is offered in grateful homage to Donat Pharand for his central role in establishing the Arctic as a serious topic of inquiry for legal academics, law students and international law practitioners, and for having inspired many of today’s leading thinkers in the field. When directing my own students, as they turn eagerly to the Arctic as an area rich with legal questions in need of answers, I invariably refer them to Donat Pharand’s writings as starting points and guideposts along the way. When interacting with scientists who study geophysical phenomena in the Arctic, I often refer them to Professor Pharand’s 1971 commentary State Jurisdiction over Ice Island T-3: The Escamilla Case.1 The case is infamous among Arctic scientists of a certain generation less for the fine points of jurisdiction than for the sad drama, reprised below, that played out on the desolation of a remote research platform—an ice island floating in the Arctic Ocean.2 This contribution will move from research platforms to information platforms, by way of assessment mechanisms in international law. The Escamilla Case and Professor Pharand’s T-3 commentary serve as the starting point for how scientific research and law have changed in the last three decades in their approaches to the acquisition, assessment and sharing of information about the Arctic. While ice islands are still in use as research platforms,3 much of the * Associate Professor, Senior Fellow for Oceans and Energy, Institute for Energy and the Environment, Vermont Law School, South Royalton, Vermont, USA. 1 Donat Pharand, “State Jurisdiction over Ice Island T-3: The Escamilla Case, Commentary,” Arctic 24 (2) (1971): 82–89. See also Donat Pharand, “The Legal Status of Ice Shelves and Ice Islands in the Arctic,” Cahiers de Droit 10 (1969): 461–475. 2 The author thanks John Hall for sharing tales of life on T-3 as part of the science talks on the USCGC Healy law of the sea mapping cruises in the Arctic Ocean 08–05 and 09–05. See: University of New Hampshire, Center for Coastal and Ocean Mapping, “US UNCLOS Bathymetry Project,” http://ccom.unh.edu/theme/law-sea and http://icefloe.net/hly0805/HEALY0805Final Crewlist.xls. See also Kenneth Hunkins and John K. Hall, “The Navigation of Fletcher’s Ice Island (T-3),” AIDJEX Bulletin 7, Arctic Data Buoy and Positioning Systems, April 1971, 47–58. 3 Russia planned a June 2013 evacuation of the sixteen scientists working at its North Pole 40 (SP-40) drifting polar research station, “due to the break-up of the ice floe on which it was

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work once done from these floating scientific stations has been replaced or supplemented by a broad range of new technologies, including ice-tethered instruments, remote satellite sensing vessel- and aircraft-based mapping, other sensing and imaging technologies, hovercraft and autonomous underwater and airborne vehicles or drones.4 Some of these technological advances occurred independently of the dramatic decline in the thickness and extent of Arctic sea ice; some are rendered possible or more effective by the longer open water seasons and diminished ice conditions that are becoming the ‘new normal’ for the Arctic Ocean.5 The bulk of this contribution is devoted not to these new technologies, however, but to the increasing volumes of data they produce and to how the scientific and regulatory communities are providing and managing access to that data and to the burgeoning number of studies, analyses and information generated from it. The essay begins by connecting the Escamilla decision with changing approaches to characterizing Arctic sea ice in the international, Canadian and U.S. legal systems. It then introduces the institution of information platforms, which are neither research technologies nor research platforms, but rather multilateral, multi-party initiatives such as the Millennium Ecosystem Assessment,6 usually resolution-based, to cumulate and assess existing scientific information and make it more readily available to policy located.” “Russia’s New Arctic Platform to Cost $223 Mln– Minister,” 27 May 2013, RIA Novosti, at http://en.ria.ru/russia/20130527/181374804/Russias-New-Arctic-Platform-to-Cost-223 -Mln---Minister.html. On the rescue see: Neven, “Arctic Sea Ice Blog for June 13, 2013, Yamal to the Rescue,” at http://neven1.typepad.com/blog/2013/06/yamal-to-the-rescue.html. 4 Respecting remote sensing/drones, see, for example, presentations from “Remote SensingDerived Monitoring Products for the Arctic North Slope Science Initiative Workshop,” 28 October 2013, University of Alaska Fairbanks, International Arctic Research Center, at http://www.northslope.org/meetings/documents/, under ‘Other’. Respecting ice-tethered instruments, see, for example, Richard A. Krishfield, John M. Toole, Andrey Proshutinsky and M.L. Timmermans, “Automated Ice-Tethered Profilers for Seawater Observations under Pack Ice in All Seasons,” Journal of Atmospheric and Oceanic Technology 25 (2008): 2091–2105. Respecting vessels, see, for example, the range of research projects of the Pacific Arctic Group at http://pag.arcticportal.org/index.php?option=com_content&view=section&layout=blog &id=6&Itemid=6. Respecting aircraft, see: Maria Belmonte Rivas, James Maslanik, John G. Sonntag and Penina Axelrad, “Sea Ice Roughness From Airborne LIDAR Profiles,” IEEE Transactions on Geoscience and Remote Sensing 44 (2006): 3032–3037. 5 Martin O. Jeffries, James E. Overland and Donald K. Perovich, “The Arctic Shifts to a New Normal,” Physics Today 66(10) (October 2013): 35, at http://dx.doi.org/10.1063/PT.3.2147. 6 The Millennium Ecosystem Assessment was an initiative called for by the U.N. SecretaryGeneral. See the Millennium Ecosystem Assessment website at http://millenniumassess ment.org and see further below.

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makers. The essay concludes with observations on the nature of these information and assessment platforms and their role in the service of domestic and international policy and law in a rapidly changing Arctic.

Changing Legal Characterizations of Sea Ice

In the 1972 judicial decision bearing his name, Mario Jaime Escamilla, a U.S. citizen, appealed successfully to the U.S. Court of Appeals for the Fourth Circuit from his conviction of involuntary manslaughter of Bennie Lightsy, also a U.S. citizen and co-worker on the research ice island T-3.7 The appeals court characterized T-3 as consisting primarily of glacial ice. Presumed to have broken off of Canada’s Ellesmere Island years earlier, T-3 was drifting in the high seas, adjacent to Canada, when the fatal shooting took place.8 Because the issue of freedom of the seas in the Arctic Ocean had recently been the source of diplomatic friction between the United States and Canada,9 both countries were at pains to assert neither jurisdiction nor sovereignty over T-3 in this instance. The U.S. Attorney’s brief on appeal noted that the ice island was “not only high seas itself, it floats around on the high seas.”10 The lower (district) court did not issue a written opinion so the exact basis for its territorial and special maritime jurisdiction, which were upheld on appeal, remains unclear.11 For its part, Canada refrained from engaging in the Escamilla Case but took the opportunity to state its non-objection to treating a drifting ice-island as a vessel for purposes of jurisdiction.12 7

United States v. Escamilla, 467  F.2d 341 (1972), U.S. Court of Appeals for the Fourth Circuit. See also Frank M. Auburn, “International Law and Sea Ice Jurisdiction in the Arctic Ocean,” International and Comparative Law Quarterly 22 (1973): 552–557. The two were alleged to have argued over a jug of home-brewed raisin wine. 8 The United States first established a research station on T-3 in 1952. “At the time of the Escamilla incident, T-3 was reported as measuring approximately 7 miles long and 4 miles wide.” Pharand, “State Jurisdiction,” supra note 1, at 86. 9 In 1970, the United States had objected to Canada’s Arctic Waters Pollution Prevention Act. See: U.S. Statement on Government of Canada’s Bills on Limits of its Territorial Sea, Fisheries and Pollution, 15 April 1970 and Canada’s response 16 April 1970, reprinted in 9 I.L.M. (1970): 605 and 613. 10 Referenced in id. 11 Auburn, supra note 7, at 553. Were the U.S. court to assert jurisdiction over the island by analogizing it to a vessel, or over the individual as a U.S. citizen, this would not raise the same sovereignty concerns. 12 Pharand, “State Jurisdiction,” supra note 1, at 84, explains:

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Although neither the Escamilla court nor the U.S. Attorney arguing the case assimilated ice-islands to land, when Pharand considered the case he saw “an element of logic” in such an analogy.13 In the international law arena, Canadian scholars have used the ‘ice as land’ simile, and Inuit use and occupancy of sea ice, to support national jurisdiction over the Canadian north in various contexts, including Canada’s enclosure of its Arctic archipelago within straight baselines indicating Canada’s historic internal waters.14 In the latter context, Pharand and Vanderzwaag did not consider ice as land per se but observed, “the presence of ice in Canadian Arctic waters bolsters the physical landsea link.”15 The U.S. legal system has consistently treated sea ice as water, most notably in the international law context of preserving freedom of navigation in the Arctic Ocean, where the United States has objected to other national steps to regulate ice-covered areas under article 234 of the United Nations Convention on the Law of the Sea.16 The United States has never accepted the sector theory, often associated with Canada and Russia, as a basis for jurisdiction over the Arctic Ocean or argued that sea ice has land-like characteristics supporting jurisdiction.17 Scholars analysing the consistency of the U.S. treatment of sea

13 14 15 16 17

The fact that Canada did not choose to exercise jurisdiction over the incident, even if it was convinced that it had the right to do so, is quite understandable, since both the accused person and the victim were American nationals, and the floating research station was under the exclusive control of American authorities. If Canada, however, were serious about claiming sovereignty over the “ice pack” within its sector, it was important to make it clear to the United States that it had refrained from exercising its jurisdiction without prejudice to its claim. See also Auburn, supra note 6, at 553 and Susan B. Boyd, “The Legal Status of the Arctic Sea Ice: A Comparative Study and a Proposal,” Canadian Yearbook of International Law 22 (1984): 98–152. Id., at 86. Id., passim, and Suzanne Lalonde, “Increased Traffic through Canadian Arctic Waters: Canada’s State of Readiness,” Revue juridique Thémis 38 (2004): 49, at 103. Donat Pharand and David VanderZwaag, “Inuit and the Ice: Implications for Canadian Arctic Waters,” Canadian Yearbook of International Law 21 (1983): 53–84, at 64. See Boyd, supra note 12 at 115 ff. See: Elizabeth R. Wilcox, Digest of United States Practice in International Law 2010 (Oxford University Press, 2012), at 515–518, for U.S. comments objecting to the then proposed Northern Canada Vessel Traffic Services Zone Regulations (NORDREG) as not having “due regard to navigation” and asking, without distinguishing between water and ice, what scientific information Canada had used to determine record low ice levels in the NORDREG zone.

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ice as water focus on U.S. state practice as relevant to discussions of sovereignty and jurisdiction in international law.18 The foregoing approaches to characterizing sea ice relate largely to international law and the narrative each country presents to the outside world. The binary approach of analogizing sea ice either to land and/or as water ignores the unique characteristics of sea ice in its own right and the services it provides to many different users.19 Categorization is not much in evidence as courts and agencies in both Canada and the United States have acknowledged that sea ice plays a role in a larger system.20 Cataloging some of these instances allows us to draw some preliminary conclusions regarding how legal and regulatory systems adapt to new scientific information about the object of regulation.21 Agency action and related litigation in the United States demonstrate sea ice user conflicts and highlight the tendency of U.S. law to protect only one type of user at a time.22 But these decisions also show an increasing if unsystematic practice of referencing scientific studies on the role sea ice plays not as frozen water but as species habitat, as critical to coastal erosion control, and as a platform for subsistence hunting, among other uses.23 Scientific data and literature have long played a role in U.S. agency decisions about resource management,24 and do so in the discussion of sea ice as well. A recent example is 18

See: Boyd, supra note 12, at 115  ff.; Christopher Joyner, “Ice-covered Regions in International Law,” Natural Resources Journal 31 (1991): 213–242; and Donat Pharand, “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development & International Law 38 (2007): 3–69. 19 On sea ice system services, see Hajo Eicken, Amy Lauren Lovecraft and Matthew Druckenmiller, “Sea-Ice System Services: A Framework to Help Identify and Meet Information Needs Relevant for Arctic Observing Networks,” Arctic 62(2) (2009): 119–136. 20 Betsy Baker and Sarah Mooney, “The Legal Status of Arctic Sea Ice in the United States and Canada,” Polar Geography 35 (2012): 1–19. 21 See id., for a more detailed discussion of most of the instances identified in the following discussion. 22 See, for example, U.S. Department of the Interior, “Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Polar Bear (Ursus maritimus) in the United States,” Final Rule, Federal Register, 75 (234), 7 December 2010, 76086, and U.S. Department of Commerce, “Endangered and Threatened Species; Initiation of Status Review for Ribbon Seal,” Federal Register, 76 (239), 13 December 2011, 77467, as discussed in id., at 7–8 (polar bears) and 6 (seals). 23 See id., on sea ice as habitat, for example, at 5 and 7; as storm protection at 8; and as a platform for subsistence hunting at 7. 24 See, for example: Holly Doremus, “Data Gaps in Natural Resource Management: Sniffing for Leaks Along the Information Pipeline,” Indiana Law Journal 83 (2008): 407 and Julie

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the Supplemental Final Environmental Impact Statement (SFEIS) for Lease Sale 193 in the Chukchi Sea, issued by the Bureau of Ocean Energy Management Regulation and Enforcement after a successful court challenge to some aspects of the original lease sale.25 Relying on scientific literature, the SFEIS attributes many roles to sea ice, including controlling phytoplankton bloom in the Chukchi Sea, serving as habitat for polar bear and walrus, and affecting seasonal movements of bearded seals.26 The SFEIS also points to certain effects of diminishing sea ice, such as potentially contributing to ocean acidification through sea ice melt27 and to increasing the duration and area of open water and to elevated wave height.28 This approach does much more than consider whether sea ice is water or land; it acknowledges the role of sea ice as an “an essential driver of the ecosystems in the Chukchi Sea.”29 In Canada, discourse has also moved away from the sea ice as water analogy and generated a decidedly less binary approach to thinking about sea ice. For example, the 1992 Nunavut Land Claims Agreement (LCA) creates a land fast ice zone in which Inuit enjoy special subsistence, usage and other rights.30 Under the Nunatsiavut LCA, recommendations can be made regarding the potential impact on the integrity of landfast sea ice of a Development or Petroleum Exploration in the Labrador Inuit Settlement Area.31 These are just a few examples of nascent and not always explicit acknowledgements that sea ice is a component of a larger system and a resource with multiple uses and users. These instances do, however, indicate that both the United States and Canada have the seeds of mechanisms in place to allow multiple users of

25

26 27 28 29 30

31

Joly, Martin Robards and Joel Reynolds, “Recognizing When the ‘Best Scientific Data Available’ Isn’t,” Stanford Environmental Law Journal 9 (2010): 247. U.S. Department of the Interior, Bureau of Ocean Energy Management, Regulation and Enforcement, OCS EIS/EA BOEMRE 2011–041, Alaska Outer Continental Shelf, Chukchi Sea Planning Area, Oil and Gas Lease Sale 193 in the Chukchi Sea, Alaska, Final Supplemental Environmental Impact Statement, August 2011 (hereafter Chukchi Lease Sale 193 SFEIS). Id., at 83 (phytoplankton); 38 (habitat); and 60 (seals). Id., at 47: “melting sea ice forced changes in pH and the inorganic carbon equilibrium, resulting in decreased saturation of calcium carbonate in the seawater.” Id., at 48. Id., at 55. Nunavut Land Claims Agreement Act, S.C. 1993, c. 29, implementing the Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada, 1992. Nunatsiavut Government, 2009, Labrador Inuit Land Claims Agreement webpage, at: http://www.nunatsiavut.com/index.php/en/lilac at 6.6.2, as discussed in Baker and Mooney, supra note 20, at 14 ff.

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sea ice to provide input on planning decisions affecting sea ice.32 They also reflect an ability, even if unconsciously, to adjust earlier legal approaches so as to reflect what contemporary science is learning about the natural phenomenon in question, in this case Arctic sea ice, as part of a larger ecosystem.

Science Information Assessment Platforms and Their Effect on Decision-Making

Is science or policy moving regulators from a strict categorization of sea ice as land or water to a more eco-systemic understanding of sea ice? With apologies to Professor Pharand, this contribution does not attempt a methodical approach to answering the question. Anecdotally and intuitively, however, the answer emerges first as science. Without geophysical and other scientific studies cited in agency documents and court decisions, decision-makers would have no facts upon which to base their evolving treatment of sea ice, even if the shift from thinking about it as analogous to land or water to acknowledging the various roles it plays is not conscious. Or, on further reflection is policy the driver of this change in terms of how decision-makers characterize sea ice? Another question raised here but not addressed is how the increase in sciencebased decision-making and ecosystem approaches to management in both national regulatory systems has influenced such changes.33 Yet another such question is the role of the Arctic Council, traditionally the source of scientific studies relevant to the Arctic, in influencing policy choices by its member States in their respective domestic legal systems.34 All of these questions, while 32 Baker and Mooney, supra note 20, passim. 33 Doremus, supra note 24, at 407–409, discusses recent trends and literature on information-based and ecosystem-based natural resource management, primarily in the United States. Deborah M. Hussey Freeland, “Maieusis through a Gated Membrane: Getting the Science Right in Public Decisionmaking,” Stanford Environmental Law Journal 26 (2008): 373, notes 1–4, surveys the sectoral and mechanism-specific approaches to incorporating science into public decisions. On Canadian approaches generally, see: G. Bruce Doern and Tem Reed, eds., Risky Business: Canada’s Changing Science-Based Policy and Regulatory Regime (Toronto: University of Toronto Press, 2000), at 220–221 and on legislation relevant to ecosystem-based and integrated management of Canada’s marine areas see, Ted L. McDorman and Aldo Chircop, “Canada’s Oceans Policy Framework: An Overview,” Coastal Management 40 (2) (2012): 133–144. 34 On related developments in the Arctic Council, see: Paula Kankaanpää, “The Arctic Council: From Knowledge Production to Influencing Arctic Policy Making,” Yearbook of Polar Law 4 (2012): 59.

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here unanswered, may point in the direction of future research needs, if not lead to preliminary conclusions. The multilateral Millennium Ecosystem Assessment (or MA) is an early example of what was essentially a series of scientific reports that grew out of the need for information to ground public decision-making. The MA had its origins in 2000 when, to mark the arrival of the new millennium, U.N. SecretaryGeneral Kofi Annan called for an assessment of the state of the world’s ecosystems.35 The United Nations Environment Programme (UNEP) coordinated the project, which involved over 1,300 scientists and produced five volumes of scientific reports from 2001 to 2005.36 These reports synthesized existing knowledge, scientific reports, literature, and data from a range of sources, including the private sector, indigenous peoples and local communities.37 The MA was partly driven by the multilateral environmental agreements that contained reporting and other information-related obligations for their members, for example, the Convention on Biological Diversity (CBD),38 the Convention on Wetlands of International Importance39 and the Convention on the Conservation of Migratory Species of Wild Animals.40 As early as 2000, the governing bodies of various environmental conventions had adopted resolutions supporting the work of the Millennium Ecosystem Assessment.41 A ‘fundamental basis’ of the MA was the emerging science of ecosystem services.42 The MA contained one of the first acknowledgments of sea ice as part of a larger system.43 One critique of how the MA treated sea ice, however, was its 35

U.N. Secretary-General Kofi A. Annan, We the Peoples: The Role of the United Nations in the 21st Century, “Chapter 4: Sustaining Our Future” (New York: United Nations, 2000), 64. 36 See MA website, supra note 6. 37 Ezequiel Lugo, “Ecosystem Services, the Millennium Ecosystem Assessment and the Conceptual Difference Between Benefits Provided by Ecosystems and Benefits Provided by People,” Journal of Land Use & Environmental Law 23 (2007/2008): 243, at 247. For further background see: Betsy Baker, “Marine Biodiversity, Ecosystem Services and Better Use of Science Information,” in Securing the Ocean for the Next Generation, eds. Harry N. Scheiber, Moon Sang Kwon and Emily A. Gardner, papers from the Law of the Sea Institute, UC Berkeley-Korea Institute of Ocean Science and Technology Conference, held in Seoul, Korea, May 2012, at http://www.law.berkeley.edu/15589.htm. 38 Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 79. 39 Convention on Wetlands of International Importance, 2 February 1971, 996 U.N.T.S. 245. 40 Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1990 U.K.T.S. No. 87. 41 See the relevant resolutions at http://www.maweb.org/en/Conventions/aspx. 42 Lugo, supra note 37, at 247. 43 Eicken et al., supra note 19, at 121.

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focus on the benefits of sea ice to human well-being and consideration of “geophysical features such as sea ice only in their role as one of a broad range of supporting functions of large ecosystems, e.g. as a habitat for key species.”44 Those critics argued for extending the MA approach to encompass other services sea ice provides in the Arctic, observing that sea ice “reaches far beyond that [supporting] function,” and noting that the “disproportionate importance” of sea ice as a geophysical feature in the Arctic “(relative to other systems considered in the MA) derives largely from the fact that it is heavily used in the Arctic by the indigenous populations as well as by industry.”45 The MA was an early ‘information platform’, issuing reports at roughly the same time that another information platform, the groundbreaking 2005 Arctic Climate Impact Assessment (ACIA) was being finalized.46 Both efforts were massive undertakings involving hundreds of scientists from dozens of disciplines and countries, interested not in producing new science but in taking stock of the studies and, indirectly, the data that are available and relevant to their inquiry. Three other recent examples of such assessment/information platforms47 include the U.N. World Ocean Assessment (WOA),48 the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES)49 and the Arctic Biodiversity Assessment (ABA).50 The WOA grew out of the 2002 Johannesburg World Summit on Sustainable Development, whose Plan of Implementation called for establishing a “regular process for global reporting and assessment of the state of the marine environment, including socioeconomic aspects.”51 The ‘Regular Process’, now formally established as a mechanism reporting to the U.N. General Assembly, held its 44 45

46 47 48 49 50 51

Id. Id. Their proposed four additional sea ice service categories are regulating (e.g., regulator of climate, shipping, sediment transport); provisioning (e.g., providing food, ice as water, ice as hunting platform); cultural (e.g., mentoring young subsistence hunters, tourism); and supporting services (e.g., habitat, coastal erosion control, reservoir, and biodiversity driver). Arctic Climate Impact Assessment (Cambridge: Cambridge University Press, 2005). No clear terminology has emerged in the literature to identify these assessment undertakings, hence the phrase information/assessment platforms. U.N. World Ocean Assessment at http://www.worldoceanassessment.org. Intergovernmental Platform on Biodiversity and Ecosystem Services at http://www.ipbes .net. Arctic Biodiversity Assessment at http://www.arcticbiodiversity.is. U.N. Department of Economic and Social Affairs, Division for Sustainable Development, “Johannesburg Plan of Implementation,” 2002, para. 36(b), at http://www.un.org/esa/ sustdev/documents/WSSD_POI_PD/English/POIToc.htm.

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first meeting in 2011 and initiated the first cycle of the WOA.52 The WOA, scheduled for completion in 2014, will be “the first global integrated assessment of the state of the marine environment, including socio-economic aspects.”53 Ice cover is one characteristic of marine areas slated for study.54 Like the MA, the WOA intends to complement rather than duplicate existing assessments. The objective of the IPBES “is to strengthen the science-policy interface for biodiversity and ecosystem services for the conservation and sustainable use of biodiversity, long-term human well-being and sustainable development.” 55 The IPBES will do so by undertaking activities that include responding to requests from governments and others and performing “regular and timely assessments of knowledge on biodiversity and ecosystem services and their interlinkages.”56 The IPBES will identify and prioritize “key scientific information needed for policymakers at appropriate scales and catalyse efforts to generate new knowledge by engaging in dialogue with key scientific organizations, policymakers and funding organizations, but should not directly undertake new research.”57 In this way, the IPBES moves beyond providing a mere assessment of existing knowledge to mediating what new knowledge will be generated even though IPBES does not itself produce that science. The ABA, whose recommendations the Arctic Council Ministers adopted in their 2013 Kiruna Declaration,58 was produced as part of the Circumpolar Biodiversity Monitoring Program (CBMP),59 an ongoing program central to the Arctic Council’s Conservation of Arctic Flora and Fauna (CAFF) working 52 53 54

55

56 57 58 59

“Background Paper on the Regular Process,” 2011, at http://www.un.org/Depts/los/ global_reporting/regular_process_background.pdf. Id., para. 22. “Outline for the First Global Integrated Marine Assessment of the Regular Process for Global Reporting and Assessment of the State of the Marine Environment, including Socio-economic Aspects,” at http://www.un.org/Depts/los/global_reporting/Final%20 ­ Outline%20First%20Global%20Integrated%20Marine%20Assessment.pdf, at 2, 6 and 13. United Nations Environment Programme (UNEP), “Report of the second session of the plenary meeting to determine modalities and institutional arrangements for an intergovernmental science-policy platform on biodiversity and ecosystem services,” UNEP/IPBES. MI/2/9, Appendix I, para. 1 (a) and (c) (18 May 2012). For more on the origins of IPBES, see: Baker, supra note 37, at 7–8. Id. Id., para. 1(b). Kiruna Declaration, 15 May 2013, on the Arctic Council website at http://www.arctic -council.org. Information on the Circumpolar Biodiversity Monitoring Program (CBMP) framework is available at http://library.arcticportal.org/309/.

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group.60 The CBMP is “an international network of scientists, government agencies, Indigenous organizations and conservation groups working together to harmonize and integrate efforts to monitor the Arctic’s living resources” that focuses on “data management, capacity building, reporting, coordination and integration of Arctic monitoring, and communication, education and outreach.”61 The CBMP is working with the bodies under the Convention on Biological Diversity (CBD) to monitor implementation of the CBD Strategic Plan for Biodiversity in the Arctic,62 as well as tracking Arctic priorities for the Convention on Migratory Species,63 and serving as the official Arctic Biodiversity Observation Network for the Group on Earth Observations Biodiversity.64 On the data standardization front, the CBMP collaborates with the Global Biodiversity Information Facility65 to support data exchange and works with the Biodiversity Indicators Partnership to develop global biodiversity indicators.66 The relationship between assessment/information platforms like the ABA, conventions such as the CBD, and the programs of the Arctic Council working groups like the CBMP has not been clearly defined in international law.67 60 61

62

63 64 65 66 67

See Conservation of Arctic Flora and Fauna website at http://www.caff.is. Monitoring The Circumpolar Biodiversity Programme (CBMP), on the CAFF website, id. See also: Aevar Petersen, Christoph Zockler and Maria Victoria Gunnarsdottir, “Circumpolar Biodiversity Monitoring Program Framework Document - CBMP Report No. 1,” Project Report (Akureyri: CAFF International Secretariat, 2004). See Convention on Biological Diversity, Conference of the Parties (COP), Decision XI/6 (2012) and Decision X/2 (2011), in the latter of which the COP adopted a revised and updated Strategic Plan for Biodiversity, including the Aichi Biodiversity Targets for the 2011–2020 period. Convention on Migratory Species, supra note 40. e-CBMP Newsletter, Volume 7, Issue 2, Fall 2013, at http://archive.constantcontact.com/ fs150/1102157694644/archive/1114947664915.html. Global Biodiversity Information Facility at http://www.gbfi.org. e-CBMP Newsletter, supra note 64. For an attempt to distinguish assessment platforms and information platforms from conferences of the parties, subsidiary bodies, secretariats of multilateral environmental agreements and other ‘autonomous institutions’, an issue first identified by Robin Churchill and Geir Ulfstein, “Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law,” American Journal of International Law 94 (2000): 623 and explored further by Annecoos Wiersema, “The New International Law Makers? Conferences of the Parties to Multilateral Environmental Agreements,” Michigan Journal of International Law 31 (2009): 1, see Baker, supra note 37, at 17, who concludes that “information platforms such as IPBES and the Regular Process cannot affect parties’ obligations because the platforms are independent of any single (MEA).”

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The ABA is a study produced under the auspices of the CAFF working group of the  Arctic Council. The Arctic Council, established by the 1996 Ottawa Declaration,68 is not a multilateral treaty.69 CAFF and the CBD Secretariat have signed a non-binding memorandum of understanding.70 When it comes to such arrangements, we might do as Wiersema suggests regarding consensusbased activities of Conferences of the Parties (COPs) generally and ask not “is it law?” but rather “what the relationship is between [the] activity and the original international legal obligations of the parties to the underlying treaty.”71 However, until a more direct link can be shown between the monitoring and assessment activity and individual treaty obligations, even this question of relationship is difficult to answer. Ultimately, it may be more important to evaluate the practical effect of the information being produced. While no multilateral environmental agreement or domestic law requires generation of the information produced by the information/assessment platforms, the fact that these platforms are making information and data more accessible can help actors under the international and domestic regimes to meet existing obligations for transparency, environmental monitoring and information exchange. The information can also help governments and individuals respond more effectively to a rapidly changing Arctic.

68

Declaration on the Establishment of the Arctic Council, 16 September 1996, reprinted in I.L.M. 35 (1996): 1387. 69 See: Evan T. Bloom, “Establishment of the Arctic Council,” American Journal of International Law 93 (1999): 712–725. 70 Memorandum of Cooperation between CBD Secretariat and CAFF to Contribute to Building and Sharing Knowledge, Creating Awareness and Enhancing Capacity for Implementation of the Convention in the Arctic Region of 14 April 2009, at http://www .cbd.int/agreements. 71 Wiersema, supra note 67.

Index Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic see Arctic Council Search and Rescue Agreement Aleut International Association  83n29 Amundsen Gulf  33, 35 Antarctic and climate change  89 demilitarization  89, 93–94, 100 environmental protection  89–90, 93, 116 extended continental shelf  91 fisheries  88, 100–101 glaciers  396 governance  66–67, 88, 101–107, 324, 356, 375, 380–381 ice sheets  372 ice shelves  324–325, 342–343, 358, 368–369, 372–374, 377–378, 381, 388–389, 393–394, 396–397, 404 international legal regime  7, 20, 66, 73–74, 81, 88–107, 116, 126, 141–146, 324, 377–378 mining moratorium  88, 90, 99, 101 nuclear-free zone  93, 100 scientific research  89, 92–93, 100–102 sector principle  17, 20–21, 217–218, 220–226, 233, 236 shipping  88, 125 tourism  88, 100–101, 126 see also Southern Ocean Antarctic Treaty  8, 20, 66, 81, 88–95, 101–107, 324 Committee for Environmental Protection  73–74, 100 consensus process  92–93, 102 Consultative Parties  92–93 dispute resolution procedures  93–94, 100, 102 Environmental (Madrid) Protocol  93, 94–95, 99–101, 105–106, 116 observation and inspection  93, 102 review conference  81n22 Secretariat  89 territorial claimants  89–92, 102

Antarctic Treaty System see Antarctic Treaty; Convention for the Conservation of Antarctic Seals; Convention on the Conservation of Antarctic Marine Living Resources arbitration Canada/France delimitation  418 see also International Tribunal for the Law of the Sea archipelagos  338–340 baselines  10, 16, 25–35, 120, 123, 169, 211, 296, 315–316, 338–340 Arctic and climate change  8, 10, 45, 50–51, 74–75, 89, 107, 125, 183, 203, 211, 300–305, 435 cruise shipping  184, 192, 187t3 economic development  57, 61–62, 74–75, 107, 180, 186, 191, 213, 245–248, 254–257, 262–263, 285 environmental protection  47, 77, 82, 89, 102–104, 111–113, 115–126, 261, 263, 295 extended continental shelf  10–14, 16–17, 241–243, 270, 273–284, 289–290, 315, 331–332, 334, 415–433 governance  14–17, 46–47, 50–51, 55–57, 59–89, 102–107, 111–127, 141, 163–171, 174–179, 181–183, 197–219, 221–223, 230–232, 234–238, 241–265, 269–290, 304, 306–320, 327, 334, 366–367, 369, 372–373, 375, 379–380, 385–386, 395–396, 424, 438–440 indigenous peoples  33, 47, 50, 61, 63, 67, 69, 72, 77n6, 80, 83–86, 102n67, 203–204, 241, 243, 251, 262, 263 international legal regime  4–17, 45, 57–62, 74, 77, 120–126, 128–136, 141–146, 155–159, 161, 171–179, 211, 279–280, 371, 377, 393–394 intra-region traffic  259 maritime safety  24, 46, 62, 84–85, 104, 112, 122–123, 125–126, 133, 141–146, 152–153, 181–183, 198–199

448 Arctic (cont.) maritime traffic  25, 40–42, 56, 111–112, 160, 166–172, 178–193, 206–208, 211, 259, 295 mineral resources  184–187, 189t5, 190–193, 257, 263, 291n3, 285, 295 nuclear-free zone  79, 84 scientific research  56, 169–171, 251, 435, 440, 443–445 security issues  77–79, 84–85, 87, 200, 202–205, 208–209, 247–249, 261, 291n2 shipping  45, 50, 88, 114, 118, 122–123, 125, 164–171, 173, 177–178, 181–183, 186, 241, 281 Arctic Athabaskan Council  83n29 Arctic Council  47, 61, 69–75, 82–86, 243, 264–265, 395–396, 440 Arctic Biodiversity Assessment  442–445 Arctic Climate Impact Assessment  85, 291n2, 300, 442 Arctic Environmental Protection Strategy  56, 77, 82, 83 Arctic Marine Shipping Assessment  85, 176, 177, 291n3, 307 Arctic Monitoring and Assessment Program  300 Circumpolar Biodiversity Monitoring Program  443–444 Conservation of Arctic Flora and Fauna Working Group  443–445 Marine Oil Pollution Response Agreement  62, 103, 243 membership  56–58, 63–69, 71–74, 77, 84, 102–107 ministerial meetings  69–72, 102–104 Observer States  64–65, 67–69, 72, 83–86, 103–106, 202–203, 243 Ottawa Declaration  47, 56, 61–64, 69, 72, 82, 84, 445 Permanent Participants  61, 63–64, 67, 69, 72, 83–86, 102n67, 243 Search and Rescue Agreement  62, 84–85, 104, 243, 270–271 Secretariat  69, 70, 83 Senior Arctic Officials  69, 71–72, 74, 264

Index Vision for the Arctic  86, 103 working groups  69–70, 72–74, 83 Arctic Ocean  57–60, 273, 283, 285, 300–301, 331, 367, 371, 382 Alpha Ridge  12–13, 275–276 Central Basin  60 Lomonosov Ridge  12–13, 275–276 Mendeleev Ridge  275 Arctic Regional Hydrographic Commission  307 Argentina  89, 92, 130, 223n19 assessment see ecosystems, assessment; environmental impact assessment Australia  115, 118, 321, 424n36, 428 Antarctic Territory  66n69, 89, 91, 99, 221–222, 226 extended continental shelf  91, 321 Axel Heilberg Island  305 Baffin Island  305 Barents Sea  60, 263, 270–273, 276–280, 285–290 Barrow Strait  35, 43 baselines  34, 199, 292–299, 310–323, 417–418 ambulating  296, 304–305, 321–323, 330–331, 333–334 and deltas  322, 330, 334 and fringing islands  297–298, 317, 358 and ice formations  305–414 archipelagic  16, 25–35, 296, 315–316, 338–340 arcs method  293 basepoints  293–294, 305–314, 316–321, 323–334, 376, 397 international legal regime  26–29, 34, 44n212, 208, 211, 292–293, 295–299, 306, 308, 321–334, 417–418, 421 normal  292n4, 293, 296–297, 304–308, 323–324, 329, 33–334, 383 straight  5, 10, 24–35, 42–45, 122, 208, 210–211, 222, 293–294, 296–299, 306–308, 311, 314–323, 326, 329, 333, 376, 383, 437 see also maritime boundaries Beaufort Sea  14, 16–17, 47, 166, 173, 304 Belgium  89, 154, 189t6 Bering Sea  173–175, 272

Index Bering Strait  160–161, 166, 173–179, 181 biodiversity  443–444 international legal regime  444 Biodiversity Indicators Partnership  444 biological production  439 boundary delimitation see maritime boundaries Brazil  105t2 Canada  58, 77–79, 105t2, 143–145, 152–155, 159, 304–305 Agreement on Arctic Cooperation (with United States)  25, 47, 122, 169–171, 199–200, 209, 215 Agreement on Cooperation in the Arctic and the North (with Russia)  246– 248, 252–253, 260, 262–263 Agreement on Economic Cooperation (with Russia)  258–259 and sector theory  6, 17–21, 221–222, 269–270, 276–280, 283, 290, 360–361, 437 Arctic archipelago  4f-6, 10–11, 60, 112, 120, 123, 166, 169, 208–210, 216–219, 221–223, 225–226, 228–239, 307–308, 326, 327n188, 437 Arctic governance  5–6, 24–25, 45–47, 50–51, 113–120, 167–171, 197–219, 221–223, 230–232, 234–238, 241–265, 366–367, 369, 372–373, 396, 438–440 Arctic Marine Pollution MOU (with Russia) 246 Arctic Science Exchange Programme (with Russia)  251–252, 262 Arctic Waters Pollution Prevention Act  24–25, 112–113, 115–117, 120, 122–124, 143, 167, 197–198, 207, 367 baselines  5, 8, 10, 13, 16, 40, 43–44, 209–210, 24–35, 43–44, 120, 122, 124, 169, 208, 306n27, 307–310, 326, 335–336, 437 Canada’s Northern Strategy  256 Canadian Circumpolar Ambassador  262 Canadian Coast Guard  181, 204 Canadian Hydrographic Service  307, 309–310 Canadian International Development Agency  254, 258

449 Canadian Rangers  46, 209 Circumpolar Affairs Directorate  252– 255, 256, 262 Department of Foreign Affairs and International Trade  254, 257, 262 Escamilla Case  436 extended continental shelf  11–14, 241–243, 331n206, 415–416, 418, 423–427, 429–433 historic waters  5–6, 21–26, 35–36, 60, 207–208, 210, 211, 216, 437 Indian and Northern Affairs Canada  248, 250–257, 262 indigenous peoples  124, 203–204, 213, 255–256 internal waters  17, 21, 24, 26, 35–36, 43–44, 60, 169, 205, 207–208, 210, 211, 437 Joint Policy Statement on Canada-Russia Relations  261 marine scientific research  169–171, 436 maritime boundary agreements  16, 312–313, 333 MARPOL declarations  153–155, 157–158 Mixed Commission on Cooperation in the Arctic and the North (with Russia)  248 NORDREG  24–25, 46, 122, 123n41, 152–153, 181–183, 437n17 Northern Dimension of Canada’s Foreign Policy  255, 256–257, 260 Northern Partnership Development Program (with Russia)  254, 258 Nunavut Land Claims Agreement  439 Oceans Act  308 Permanent Joint Board on Defense (with United States)  204, 214 security issues  46, 197–200, 204, 208–215, 218 Siberian Federal District Program  257–258, 262 see also Northwest Passage Canada-Russia Intergovernmental Economic Commission: Arctic and North Working Group  258–259, 260, 262

450 Canadian Arctic Resources Committee  78–79 Canadian Institute of International Affairs  78–79 capacity-building  253, 256, 258 CCAMLR see Commission for the Conservation of Antarctic Marine Living Resources Chile  89, 92, 133, 223n19 China, People’s Republic  64n50–52, 85, 105t2, 173, 190–192, 202–203, 431 Chukchi Sea  166, 173–175, 271–272, 304, 438–439 climate change and continental ice  305, 321–323, 335–340 and polar ecosystems  8, 10, 50–51, 66, 74–75, 89, 107, 125, 180, 183, 203, 211, 240, 291–292, 300–305, 321–323, 435 and sea ice  45, 141, 160, 180, 211, 291, 300–301, 349 international legal regime  334 permafrost  301–302, 304 storm activity  302, 304, 333 see also sea level change coastal communities  304 coastal erosion  291–292, 296, 301–305, 320–323, 330, 333–334, 438–439 coastal State rights see sovereign rights Colombia  329n197, 419–422 Commission for the Conservation of Antarctic Marine Living Resources marine protected areas  97–98 Scientific Committee  97–98 see also Convention on the Conservation of Antarctic Marine Living Resources Commission on the Limits of the Continental Shelf  13–14, 91, 242–243, 273–284, 289, 315, 318n150, 321, 331–332, 415, 418–433 declared disputes  426–427 partial submissions  423–424 preliminary information  419–420 Rules of Procedure  14, 421, 423–424, 426–427, 430–432 see also continental shelf, extended common heritage doctrine  354 containerization (shipping)  187, 190, 192 contiguous zone  114, 293, 306n27

Index continental ice  305 glaciers  292, 305, 312–316, 318–319, 323, 325, 332, 336–340, 375–376, 396, 404 ice caps  305, 316, 319, 323, 337–338, 340, 358, 374, 376, 403–404 ice sheets  292, 303, 305, 332n210, 336–340, 372, 374, 394, 398 ice shelves  7–8, 10, 292, 305, 308–310, 312, 320, 323–328, 335–336, 340, 350–351, 355, 357, 363–365, 368–370, 372–375, 377–378, 380–381, 383–384, 387–389, 393–394, 397–398, 403–404 legal status  305, 323–334, 340–414 see also sea ice continental shelf  271 extended  12–14, 241–243, 270, 273–284, 289–290, 293, 315, 318n150, 331–332, 334, 415–433 international legal regime  11–17, 242–243, 271, 273–275, 293, 282–284, 290, 293, 315, 328, 332, 415–433 natural prolongation  275, 417 see also Commission on the Limits of the Continental Shelf; maritime boundaries Convention for the Conservation of Antarctic Seals  95–96, 105–106 Convention on Biological Diversity  441, 444–445 Strategic Plan for Biodiversity in the Arctic  444 Convention on the Conservation of Antarctic Marine Living Resources  96–99, 101, 105–106 and ecosystem approach  97, 102 and precautionary approach  102 see also Commission for the Conservation of Antarctic Marine Living Resources Convention on the Conservation of Migratory Species of Wild Animals  441, 444 Convention on the Continental Shelf  9, 271, 281, 290 Convention on the International Regulations for Preventing Collisions at Sea  127 Convention on the Territorial Sea and the Contiguous Zone  9, 26–30, 34, 36, 43–44, 171–172, 179, 295, 329

Index Convention on Wetlands of International Importance  441 cruise shipping  184, 192, 187t3 see also tourism Cuba  432 Cyprus  189t6 Davis Strait  166 demilitarization  79, 84–85, 89, 93–94, 100, 247–249, 261 Denmark  6, 14, 47, 77–78, 105t2, 126, 132, 154, 189t6, 205–206, 276–280, 283, 290, 306n27, 310–315, 327, 333, 396, 429, 432, 433 extended continental shelf  14, 242–243, 315, 331n206, 332 Hans Island  242 see also Greenland Devon Island  305 East Siberian Sea  304 ecosystem approach  96–97, 99, 102, 438–440 ecosystem services  441–443 ecosystems Arctic  45, 77, 107, 241, 291, 438–442 assessment , 435–436, 442–445 EEZ see exclusive economic zone Ellesmere Island  6, 8, 16, 235, 305, 308–310, 332n210, 335–336, 366, 436 enclosed and semi-enclosed seas  57–60, 63, 80, 379 environmental impact assessment  99, 101, 102 environmental protection see marine environmental protection equity  15–17, 81, 287, 294, 329, 425 European Community  25, 26 European Union  64, 103–104, 105t2, 308 exclusive economic zone  58–60, 91, 114–122, 199, 242, 271, 293, 298, 311 freedom of navigation  115, 117–119, 162, 174–176 see also maritime boundaries Faroe Islands  78 Finland  58, 77–78, 105t2, 132, 189t6 fisheries  88, 100–101, 285 see also marine resource management

451 fishing industry  191 flag State  88, 94, 144–145, 151, 172, 176, 281 France  64n50, 89, 105t2, 154, 221–222, 432 Saint Pierre-et-Miquelon  416, 418, 424 freedom of the seas doctrine  342, 436 navigation  115, 117–119, 123, 160, 164–166, 168, 172, 174–176, 178–179, 197, 200, 211–212, 437 geographically disadvantaged states see landlocked states and geographically disadvantaged states Germany  64n50, 105t2, 154, 189t6 glaciers see continental ice Global Biodiversity Information Facility  444 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction  248–249 governance and indigenous peoples  61, 63n43, 67, 80, 83n29, 86, 203–204, 251, 255–257 collaboration  47, 55–69, 71–87, 166, 203–205, 209, 213–215, 240, 242–265, 379 consultation  63–64, 73–74, 84, 92, 95, 255 polar  46–47, 50–51, 55–107, 111–127, 141, 163–171, 174–179, 181–183, 197–219, 221–223, 230–232, 234–238, 241–265, 269–290, 304, 324, 327, 334, 356, 366–367, 369, 372–373, 375, 379–381, 385–386, 395–396, 424, 438–445 role of science  440–445 see also transparency Greece  154, 189t6 Greenland  16, 58, 78, 225, 241, 306, 310–315, 336–337, 375–376, 416, 424, 429 ice sheet  303, 305, 332n210, 337 see also Denmark Greenland Sea  59 Group on Earth Observations Biodiversity  444 Gulf Stream  285 Guyana  431 Gwich’in Council International  83n29

452 habitat (marine)  438–439, 442 Hans Island  6n14, 205–206, 242 high seas  60, 115, 162, 281, 298, 371, 387, 436 historic waters  5, 21–26, 31, 34–36, 60, 120, 207–208, 210, 211, 216, 292n5, 437 see also maritime boundaries; title, historic Hudson Bay  59, 303 hydrocarbons see offshore oil and gas hydrographic surveys  306–307 ice caps see continental ice ice islands see islands, ice ice sheets see continental ice ice shelves see continental ice ice tongues see continental ice icebreakers  24–25, 41, 46, 167n35, 168–171, 184, 186–187, 190–191, 199, 201, 208, 209n29, 212n44 see also ships Iceland  58, 77–78, 104, 105t2, 118, 132, 429, 433 Ilulissat Declaration  279–280, 283, 371 IMO see International Maritime Organization India  64n50, 85, 105t2 indicators (biodiversity)  444 indigenous peoples  47, 50, 61, 63, 67, 69, 72, 77n6, 80, 83–86, 102n67, 124, 179, 203–204, 212–213, 241, 243, 251, 255–257, 260, 262, 263, 441 and sea ice  33, 359, 437–439, 442 land claims agreements  439 see also Inuit information exchange  61, 434–436, 440–445 information platforms  434–436, 442–445 innocent passage  43–44, 117, 124, 161, 210–211 intergovernmental organizations  56–57, 69, 73–74, 80, 444–445 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services  442–443 internal waters  17, 21, 24, 26, 30, 35–36, 44, 60, 169, 199, 205, 207–208, 210, 211, 292, 308, 437 see also maritime boundaries

Index International Association of Antarctic Tour Operators  88 International Chamber of Shipping  145, 156 International Convention for the Prevention of Pollution from Ships  125, 127–130, 132–133, 138–140, 142, 147, 149–151, 155–158 declarations  153–155, 157–158 International Convention for the Safety of Life at Sea  125, 127–130, 133, 136–138, 142, 147, 149–153, 155–159 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers  131, 133–135 STCW Code  134–135 International Court of Justice  113, 167, 287n72, 290, 329–331, 420–421 Bay of Bengal Case  329n197, 421–422 Black Sea Case  16, 286, 294n13, 329n197 Corfu Channel Case  36–39, 162, 171–172, 179, 210 Grisbadarna Case  31 Gulf of Maine Case  15, 25, 44 Jan Mayen Case  312, 325–326, 432 Nicaragua/Colombia Case  329n197, 419–420, 422 Nicaragua/Honduras Case  16, 330n200, 419 Norwegian Fisheries Case  23, 26–34, 38, 43–44, 210–211, 298 Qatar/Bahrain Case  299, 322 Tunisia/Libya Case  329 International Hydrographic Organization  58–59 international law criminal jurisdiction  169, 345, 371 customary  7, 9, 20–21, 27–28, 34, 36, 39, 43–44, 117, 123, 143, 151, 155, 171–172, 176–177, 179, 283–284, 306, 322, 325–327, 331, 334, 380–381, 391, 430 enforcement jurisdiction  144, 295, 436–438 relationship (treaty) clauses  145–159 tacit acceptance procedure  125–128, 133, 142 treaties  56, 79–83, 87, 107, 126–128, 145–146, 244, 424, 445

453

Index International Law Association  431 International Maritime Organization  73, 88, 117, 125, 149, 199 Guidelines for Ships Operating in Arctic Ice-Covered Waters  125–126, 141 Guidelines for Ships Operating in Polar Waters  126, 141 Marine Environmental Protection Committee  126–129, 131–133, 136 Maritime Safety Committee  126–131, 133–134, 136–138, 141–142, 159 Polar Code  65, 122–123, 126, 128–136, 141–142, 144–146, 155–159 Sub-Committee on Ship Design and Equipment  126, 129–132, 135–136, 146 Sub-Committee on Ship Systems and Equipment  136n54 Sub-Committee on Standards of Training and Watchkeeping  133–135 international regimes baselines  26–29, 34, 44n212, 208, 211, 292–293, 295–299, 306, 308, 321–334, 417–418, 421 biodiversity  444 climate change  334 contiguous zone  114, 293 continental shelf  9, 11–17, 242–243, 271, 273–275, 281–284, 290, 293, 315, 328, 332, 415–433 enclosed/semi-enclosed seas  57–61, 63, 80 environmental  57, 61–62, 88, 90, 93–94, 99–101, 104, 107, 111–126, 129–133, 141–145, 149–151, 153–155, 198, 246–248 exclusive economic zone  242, 293, 306 high seas  115 ice-covered areas  9, 111, 118–124, 142–147, 150–159, 198–200, 324, 367, 372–373, 395, 437 international seabed area  101, 279–280, 283–284 international straits  35–40, 111–113, 117–119, 121, 161–163, 171–173, 174–177, 179, 199, 208, 395 islands  7–10, 297–298, 436–437

law of the sea  149–150, 161–163, 283–284 low-tide elevations  319 marine scientific research  92, 444–445 maritime boundaries  14–17, 273, 283, 293, 295–299, 306 maritime safety  125–126, 128–136, 141–145, 152–153 navigation  115, 117–119, 121–124, 128–129, 133–134 polar  4–17, 20, 45, 57–62, 66, 73–74, 77, 81, 88–107, 116, 120–126, 128–136, 141–146, 155–159, 161, 171–179, 211, 279–280, 285–286, 324, 371, 377–378, 393–394 provisional arrangements  285, 294 search and rescue  62, 84–85, 104, 243, 270–271 territorial sea  36, 43, 114–115, 242, 293, 306, 317, 329 International Seabed Authority  101, 278–279, 283–284 international straits see straits International Tribunal for the Law of the Sea Bay of Bengal Case  418–419 see also arbitration Inuit  33, 50, 124, 437, 439 see also indigenous peoples Inuit Circumpolar Council  77n4, 78–79, 83n29 islands  5–6 artificial  9 ice  8–10, 332n210, 347–348, 362–365, 371, 373–374, 376–377, 401, 434–437 international legal regime  7–10, 297–298, 436–437 Italy  64n50–51, 85, 105t2, 154 Jan Mayen  306n27, 312, 316–317, 337 see also Norway Japan  64n50–51, 78, 85, 89, 105t2, 173, 189t6, 190, 431, 432 Kara Gates  181 Korea, Republic of  64n50–51, 78, 85, 105t2, 173, 431

454 Lancaster Sound  33, 35 landlocked states and geographically disadvantaged states  115n15, 118 Laptev Sea  304 law of the sea see international regimes Lincoln Sea  313 LOS Convention see United Nations Convention on the Law of the Sea low-tide elevations  297–298, 307n82, 319 Macquarie Island  428 marine environmental protection: compliance and enforcement  94, 295 international legal regime  57, 88, 90, 93–94, 99–101, 104, 107, 111–126, 129–133, 141–145, 149–151, 153–155, 246–248 national legal regimes  24–25, 45, 47, 50, 94, 112–113, 115–117, 122–124, 197–198, 214 regional cooperation  47, 56–63, 74–75, 77, 79, 82–83, 87 marine insurance  123–124, 199 marine protected areas  97–98 marine resource management: and marine protected areas  97–98 ecosystem-based  96–97, 438–440 governance  65–66, 276, 285, 288 see also fisheries marine scientific research  9–10, 13–14, 63, 66, 171, 209 and policy making  73–74, 85, 434–436, 440–445 international legal regime  60n23, 89, 92–93, 96–98, 100–107, 114, 121, 144, 155, 170, 283, 444–445 regional cooperation  56, 62, 69, 72–74, 79, 80, 83, 87, 169–171, 243, 245, 250–252, 256–257, 262 research platforms  434–436 maritime boundaries and climate change  291–292 contiguity  17, 19–20, 230, 346, 364, 380 delineation treaties  19, 174–175, 263, 270–273, 276, 274n19, 278–279, 283, 285–290, 294n12, 312–313, 333, 420–421, 425–429, 431

Index equidistance  16, 271–272, 277–279, 285–287, 294, 329n197, 333 equitable solution  15–17, 329, 425 historic title  21–24, 26, 31, 124 international legal regime  14–17, 273, 283, 293, 295–299, 306 provisional arrangements  16, 175, 274, 278, 285–286, 294, 329n197, 421, 429, 433 special areas  428 special circumstances  271, 286 submarine elevations  12–13 submarine ridges  275–276 see also baselines; continental shelf; exclusive economic zone; historic waters; internal waters; sector principle; territorial sea maritime safety national regulatory regimes  24–25, 46, 112, 122, 123n41, 152–153, 181–183, 198–199, 437n17 international regulatory regime   125–126, 128–136, 141–145, 152–153 see also navigation; search and rescue; ships MARPOL see International Convention for the Prevention of Pollution from Ships Millennium Ecosystem Assessment   435–436, 441–442 Monaco, 189t6 monitoring (environmental)  256, 442–445 multilateral environmental agreements  441–445 Nares Strait  313 navies see security issues navigation and marine environmental protection  117 and sea ice  45, 124–125, 134–135, 141, 180, 183 charts  296, 307 international legal regime  115, 117–119, 121–124, 128–129, 133–134 national legal regimes  24–25, 40–42, 45, 111–113, 115, 117, 121–124, 143, 163–167, 197–199, 207

Index routeing measures  112, 152, 164, 177–178 safety issues  177–178, 296, 307 ship reporting systems  24–25, 40–42, 46, 122, 123n41, 152–153, 164, 181–183, 437n17 traffic separation schemes  164, 177–178 see also maritime safety; straits Netherlands  64n50, 105t2, 154 New Zealand  89, 92, 221–222, 226, 368, 428 Nicaragua  16, 329n197, 330n200, 419–422 non-governmental organizations  63–69, 71, 80, 98, 146, 247, 254 Nordic Council  78 North American Aerospace Defence Command (NORAD)  204, 214 North Atlantic Treaty Organization  204 Northeast Passage  112, 180–181, 212 see also Northern Sea Route Northern Forum  78, 82 Northern Sea Route  118, 164, 173, 181–183, 185–193, 281 Administration  181–183 see also Northeast Passage; Russian Federation Northwest Passage  24–25, 35–47, 50, 160–161, 164–173 international strait legal status  35–36, 40–43, 111–112, 171–173, 178–179, 201–203, 205–215 sovereignty  5, 42, 167, 201, 205–210, 212–215 transits  25, 40–42, 111–112, 160, 166–172, 180–185, 192–193, 206–208, 211 see also Canada Norway  6, 58, 64n52, 77–78, 89, 105t2, 118, 126, 132, 133, 181, 186, 190, 192–193, 221, 223n19, 306n27, 327, 429, 433 Barents Sea Treaty (with Russia)   263, 270–273, 276–280, 285–290, 421, 428 extended continental shelf  243, 331n206, 332 straight baselines  26–30, 315–316 see also Jan Mayen; Svalbard

455 ocean acidification  439 ocean areas beyond national jurisdiction see continental shelf, extended; high seas ocean governance see governance offshore oil and gas  190, 285, 295, 439 Organisation for Economic Cooperation and Development: Multilateral Nuclear Environmental Programme  248–249 People’s Republic of China see China, People’s Republic Permanent Court of Arbitration Barbados/Trinidad and Tobago delimitation  418 Permanent Court of International Justice East Greenland Case  225, 229, 233, 235, 239 Pharand, Donat  ix-xi, 3–5, 7, 10–11, 17, 21, 48–51, 166, 201, 211, 215, 299, 363–365, 434 Arctic Basin Council  47 Arctic islands  5–6, 365 Arctic Region Council  55–57, 66–67, 70–71, 72, 76, 78–82, 84, 86–87 Canada’s Arctic Waters in International Law  4, 6, 17–24, 27, 30–31, 48 continental shelf and seabed  10–17 Escamilla Case  434, 437 historic waters  21–25, 204 international straits  35–45, 160, 172 Law of the Sea of the Arctic  4, 7–8, 10–11, 48 Northwest Passage: Arctic Straits  4, 35–36, 48, 51 sector theory  17–21, 216, 217–218, 221, 238, 269–270, 364 straight baselines  27–35, 315 pleasure craft  40, 172, 184, 192–193 Poland  64n50, 105t2 polar bears  439 port State control  115–116, 124 ports  46, 189–190 Portugal  154 Prince of Wales Strait  43 Protocol on Environmental Protection to the Antarctic Treaty see Antarctic Treaty Environmental Protocol

456 regimes see international regimes regional cooperation see governance collaboration regional fisheries management organizations  65, 73 Regional Seas Programme (UNEP)  62 remote sensing  306–307, 319, 435 Russian Arctic Indigenous Peoples of the North  63n43, 83n29, 257 Russian Federation  105t2, 118–119, 124, 133, 144–145, 205, 221–224, 226, 227–228, 303n61, 348–349, 416, 432 1926 Decree  271, 278, 280, 287–289, 353 Agreement on Cooperation in the Arctic and the North (with Canada)  246–248, 252–253, 260, 262–263 Agreement on Economic Cooperation (with Canada)  258–259 and Antarctic  20–21, 89, 92 Arctic governance  16, 19–20, 47, 58, 77–78, 84, 112, 241–265, 269–290, 304, 327, 385–386, 424 Arctic Marine Pollution MOU (with Canada)  246 Arctic Science Exchange Programme (with Canada)  251–252, 262 Arctic Until 2020 and Beyond  260–261 Barents Sea Treaty (with Norway)  263, 270–273, 276–280, 285–290, 421, 428 baselines  317–320, 326, 338–340 Bering Strait  160–161, 173–179 Edict of 1984,  281 extended continental shelf  12–14, 241–243, 270, 273–284, 289–290, 318n150, 331n206, 332, 429 Joint Policy Statement on Canada-Russia Relations  261 Maritime Boundary Agreement (with United States)  174–175, 272, 274n19, 278, 421, 428 Ministry of Economic Development and Trade  254, 263 Ministry of Regional Development (MinRegion)  255–256, 262

Index Mixed Commission on Cooperation in the Arctic and the North (with Canada)  248 Multilateral Nuclear Environmental Programme  248–249 State Committee for Socio-Economic Development of the North  248, 252 State Committee on Northern Affairs (Goskomsever)  253, 263 see also Northern Sea Route Saami Council  63n43, 83n29 sea ice  125, 141, 160, 180, 183, 291–292, 300–302, 324, 339, 347, 435, 438–442 fast ice  302, 304–305, 309, 320, 323, 326, 342–343, 350–351, 353, 362, 370, 373–374, 378, 380, 383–384, 387, 391, 394, 403, 439 ice rise  308–309 legal status  45, 211, 305, 340–414, 436–440 pack ice  45, 319, 342, 347–348, 352–353, 359–361, 364, 369, 371, 373–374, 376, 386–389, 395, 401, 403 see also continental ice sea lanes  177 sea level change  303, 305, 320–322, 330, 333–334 see also climate change seafarer training  133–135 seal fisheries  95–96, 102 search and rescue  46, 177, 213, 307 international legal regime  62, 84–85, 104, 243, 270–271 see also maritime safety; security issues sector principle  6–7, 17–21, 210, 216–226, 229–239, 269–274, 276–279, 282, 285–290, 324, 344–345–346, 348–349, 351–357, 357, 359–362, 364–365, 370, 379, 380–832, 390–393, 395, 399–400, 437 see also maritime boundaries security issues  84–85, 163–166, 212, 295 coast guards  46, 166, 168–169, 178, 181, 204 cooperation and coordination  46–47, 197–200, 202–205, 208–215, 218–219, 227–231, 233–239

Index navies  201, 204, 208, 224 terrorism  200, 212 see also search and rescue shipping  25, 40–42, 45, 50, 56, 85, 88, 111–112, 114, 118, 122–123, 125, 160, 164–173, 177–193, 206–208, 211, 241, 281, 291n3, 295 ships: definition  10 design and construction standards  112, 115n16, 117, 119, 124, 126, 143, 198 see also icebreakers; maritime safety; tankers Singapore  64n50, 85, 105t2 SOLAS see International Convention for the Safety of Life at Sea South Africa  89 South Korea see Korea, Republic of South Orkney Islands  98 Southern Ocean  98 see also Antarctic sovereign immune vessels  144, 187t3, 199–200 see also warships sovereign rights  68, 73, 91, 94, 114–115, 143–145, 147, 150–151, 153–157, 175, 198, 242, 270–271, 281, 292, 295, 324, 344–345 sovereignty  5–6, 11, 18, 19–21, 31, 42, 50, 56, 68, 73, 91–92, 120, 167, 201, 216–239, 242, 270–271, 280, 329, 354, 363, 369, 371, 382, 390–392, 394, 436–438 see also title Soviet Union see Russian Federation Spain  64n50, 106t2, 154 Stockholm Declaration see United Nations Conference on the Human Environment straits  36–45, 295 international legal status  35–40, 111–113, 117–119, 121, 161–163, 171–173, 174–177, 179, 395 national legal regimes  24–25, 111–113, 115–117, 121–124, 143, 167, 197–198, 207, 367 sovereign immune vessels  199–200 submarine transit  41–42, 163, 208, 211, 212 warships  25, 41–42, 119, 123, 199–200, 210–211 see also navigation; transit passage

457 submarines  41–42, 46, 163, 200, 205, 208–209, 211, 212, 247, 248–249, 327, 363 Suez Canal  185 sustainable development  61–62, 82–83, 442–443 Svalbard  16, 304, 306n27, 315–316, 332, 338, 365 Treaty  285–286 see also Norway Sverdrup Islands  6 Sweden  58, 77–78, 106t2, 189t6 tankers  40, 111, 167, 185–186, 189t5, 190, 192–193, 206 see also ships temperature (ocean)  300, 333 territorial sea  8, 43, 58–60, 114–115, 117–118, 121, 124, 167, 199, 242, 271, 292–293, 298, 306, 310–311, 317, 329 see also maritime boundaries title  24 consolidation of  31, 34–35 historic  21–24, 26, 31, 124 see also historic waters; sovereignty tourism  88, 100–101, 126 see also cruise shipping transit passage  43, 117, 119, 121, 164, 170, 176–179, 199, 208 see also straits transparency  102, 445 see also governance Treaty between Great Britain and Russia  19 Treaty between the United States and Russia  19 UNCLOS see United Nations Conferences on the Law of the Sea; United Nations Convention on the Law of the Sea United Arab Emirates  189t6 United Kingdom  19, 38, 64n50, 89, 92, 106t2, 154, 221–224, 226 United Nations Conference on the Human Environment  111 United Nations Conferences on the Law of the Sea  12, 36, 113n11, 114–120, 161, 377–378

458 United Nations Convention on the Law of the Sea  149–150, accession  13, 14, 28, 147, 151, 154, 155, 158, 176–177, 242, 273, 279, 283–284, 306, 317, 416, 419, 421, 429–430, 431 amendments  424 baselines  26–30, 34, 44n212, 208, 292–293, 295–299, 306, 308, 315, 322–324, 326–330, 334, 417–418 contiguous zone  293 continental shelf  14–15 deep seabed (Area)  283–284 duty to cooperate  57–63, 80, 177 duty to fulfil obligations  28 enclosed/semi-enclosed seas  57–61, 63, 80 environmental protection  61–62, 121, 149, 198 exclusive economic zone  242, 293, 306 extended continental shelf  12, 14, 242, 273–275, 282–284, 290, 293, 315, 328, 332, 415–433 ice-covered areas  9, 111, 118–124, 142–147, 150–159, 198–200, 324, 367, 372–373, 395, 437 low-tide elevations  319 maritime boundaries  14–15 relationship (treaty) clauses  145–159 seabed mining  101 straits  36, 43, 161–163, 171–172, 174–177, 179, 199, 208 territorial sea  242, 293, 306, 317 transit passage  121, 161, 176, 208 warships  199 United Nations Group of Technical Experts  297–298 United Nations, Regular Process  442–443 United Nations World Ocean Assessment  442–443 United States  58, 77, 106t2, 118–119, 125–126, 132, 143, 248, 340, 432, 437–439 Agreement on Arctic Cooperation (with Canada)  25, 47, 122, 169–171, 199–200, 209, 215 Alaska  163–164, 177, 270–272, 304, 320

Index and LOS Convention  14, 151, 154, 155, 157, 158, 176–177, 243, 283–284, 306, 416, 429–430, 431 and the Antarctic  20–21, 89–92, 106t2, 225–226, 233 and the Northwest Passage  25, 36, 39, 40–42, 47, 111–113, 122, 163–173, 178–179, 199–200, 202–215 Arctic Region Policy  164 Bering Strait  160–161, 173–179 Coast Guard  166, 168–169,178 Escamilla Case  434–437 extended continental shelf  14, 243, 283, 284n59, 416, 429–430, 431 Freedom of Navigation Program  178 Hughes Doctrine  217–220, 223–227, 233–236, 238–239 marine scientific research  60n23, 169–171, 436 maritime boundaries  16, 19–21, 26, 32, 34, 174–175, 270–272, 276, 278, 290, 298–299, 308, 312, 320, 322–323, 326, 327, 330, 421, 424, 428 Maritime Boundary Agreement (with Russia)  174–175, 272, 274n19, 278, 290, 421, 428 National Strategy for the Arctic Region  165–166 Permanent Joint Board on Defense (with Canada)  204, 214 security issues  84, 119, 197–200, 202–205, 209–215, 218–219, 222, 227–231, 233–239 Venezuela  431 Vienna Convention on the Law of Treaties  145–148, 150–151, 157n74, 427 warships  25, 41–42, 119, 123, 199–200, 210–211 see also sovereign immune vessels World Summit on Sustainable Development  442 yachts see pleasure craft zone of peace  86