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Volume 1


Number 3

Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, UBC
Vancouver, Canada

Not a Carve-up
Canada, Sovereignty, and the Arctic Ocean

In 1985, shortly after Canada established the points from which baselines could be drawn around the Arctic archipelago (and reaffirmed its sovereignty over the waters there, I wrote a paper for an interdisciplinary student-run journal at Dalhousie entitled in part "What is Canadian Arctic Sovereignty For?" I now think that last word should be "about", which would have made my meaning clearer. I wanted to investigate why, seemingly out of nowhere, senior members of the government of Canada were making portentous speeches about the north being "part of Canada's greatness", and the like. It seemed to me that the government, having been accused of not taking Canada's rights in the Arctic seriously (by not protesting against a U.S. Coast Guard icebreaker transiting the Northwest Passage), was sufficiently spooked to show the flag by any means available. Is it happening again now?

I ask this because there appears to be a certain lack of coherence on the part of senior ministers as regards what can be claimed in the Arctic, and where this country stands. Foreign Minister Peter MacKay is quoted as having said something to the effect that the Arctic is Canadian, a statement which at least some in the media found puzzling, and no wonder. All sorts of commentators have weighed into the debate, sometimes mangling their terminology with abandon - not the most helpful way to contribute, on the whole. There also seems to be a puzzling inclination on the part of the media to take the opinions of political scientists and security specialists on legal issues (and likewise on the part of these individuals to offer them), regardless of whether or not they can be expected to know what they are talking about. It is assumed they do: why is this?

...media-fuelled discussion of a "carve-up" of the Arctic is very far-fetched. The Convention does not allow a state to make a maritime claim beyond 350 nautical miles in any circumstances.

This suggests two items for examination: the coherence of Canada's Arctic policy, and the willingness of well-placed commentators in academia and elsewhere to weigh in on topics in which they lack basic education or training, and expect to be taken seriously. What I want to do here is to offer some comments on both, presenting my views on the latter in the context of the current Arctic jurisdictional debate.

The political map of Canada currently available on the government's web-site (August 2007) might puzzle some. The boundary between the Yukon Territory and the State of Alaska proceeds seawards along the 141st meridian to the North Pole, where it meets one which is the (longitudinally straight) northern continuation of the continental shelf boundary between Canada and Greenland. So what is this? Is the old "sector theory" still alive? Are we claiming a part of the Arctic polar region? The situation is further complicated by the fact that another line branches out from the western arm of the sector but appears to shadow the general direction of the archipelagic islands, and intersects with the eastern arm well to the south of the North Pole. This is Canada's 200 nautical mile claim, advanced in complete accordance with the international law of the sea.

A third line appears to be the boundary between the Yukon and Northwest Territories, but it proceeds northwards to the North Pole, intersecting with and going beyond the 200 nautical mile claim. The southern point of the continental shelf boundary proceeds southwards to denote Canada's claim to 200 nautical miles or continental margin around Newfoundland and Nova Scotia, and terminates with the Gulf of Maine maritime boundary fixed by the International Court of Justice in 1984.

There are subtle distinctions between the lines. The seaward continuation of Yukon-Alaska appears to be is exactly the same as the terrestrial boundary - which is of course international, being between two countries. The same type of line proceeds south to meet the continental shelf boundary, but the line around the Atlantic Provinces is in blue, as is the 200 nautical mile claim in the north. The inter-Territorial line is a broken one (the same as the lines used to show inter-provincial boundaries), as is its northerly continuation: not international in any sense. For the sake of completeness it should be said that the World Court's line is shown in a more solid black than any of the others.

The point is this: a map on the web-site of the Government of Canada seems to suggest that the country has not abandoned at least some jurisdictional position with respect to Polar Regions. This was only sensible in the years before the 1982 United Nations Convention on the Law of the Sea entered into force and consolidated the notion that there are firm limits to state jurisdiction in the oceans: 200 nautical miles for water and seabed, but going to a maximum of 350 if the continental shelf extends between that (as with the Grand Bank of Newfoundland, for example). The same caution might be advisable until all Arctic states ratify the Convention. All have done so except for the United States, but that appears likely to change before long.

In other words, a polar claim would be incompatible with the Convention. The point of fixing firm limits to state jurisdiction was to prevent a "land-grab" on the part of coastal states, who might have proceeded to carve up the entire seabed of the world between them. Not only would this have been offensive and unacceptable to landlocked states, accidents of political geography would have resulted in bonanzas for some. For example, compare the size, population, requirements, etc., and ocean space entitlements of Ireland, Norway and Portugal with those of France, Germany, and Spain. While membership in the European Union smoothes out most difficulties for these countries (this does not apply to Norway, of course), the basic point remains: gross inequities would have resulted from ever-increasing claims, and larger disadvantaged states would possibly have cast about for ways to stop this.

It is therefore reasonable to suggest that, once the United States has ratified the 1982 Convention, that Canada consider the continued utility of a polar sector claim, no matter how ill-defined and opaque it may be. But what of the recent activities of the Russians? Much has been made of the placement of a capsule containing the Russian flag on the seabed of the North Pole, though it should be noted that a senior Russian diplomat told the Canadian Broadcasting Corporation that it was no more significant than Hillary and Tenzing placing British and New Zealand flags on the summit of Everest - a very good analogy. But some of the subtleties have been lost not only on those in the media, but others who should be more aware of the jurisdictional position.

The best way to approach the issues arising here is to go back to the basics. The rights (and duties) of all states in maritime areas are defined by the international law. Much of this law is contained in the United Nations Convention on the Law of the Sea of 1982. This treaty is in force, and all Arctic states except the Untied States are party to it (though this is expected to change within the next year or so). Not that this matters - the basic rules covering what any country can and cannot claim were settled years ago. The important point is that state sovereignty extends only to the edge of the 12-nautical mile territorial sea (ownership extends to the seabed and sub-soil, water column, and superjacent airspace). No country can claim "sovereignty" (or ownership) beyond this point, and Canada certainly does not.

In This Issue

How Did Aristotle Get it Wrong about Women and Slaves?
Professor Steve Wexler from the UBC Faculty of Law discusses both the poignancy and irony of Aristotle's thought.

Literary Contributions
Contributions from an International Selection of Writers

Beyond territorial waters, one set of rules, the doctrine of the continental shelf, allows states to exercise sovereign rights for the purpose of exploration for an exploiting the natural resources of the seabed and subsoil. This regime applies seaward of the territorial sea to within 200 nautical miles from the points on the coast from which the territorial sea is measured. These rights do not need to be claimed, they exist whether a state wants them or not. But note: these rules do not permit claims to sovereignty or ownership, and that was done deliberately to prevent states from claiming vast areas of territorial sea: a land-grab, in other words. However, if the continental shelf of the state goes beyond 200 nautical miles, the state can exercise rights over it to the edge of the continental margin, which is best described as the point on the sea floor where it starts to rise first to the continental shelf, then to the land territory of the state itself.

The Convention's rules for determining the edge of the margin are based on a Canadian proposal, and mean little or nothing to most of us who don't have the good fortune to be trained geologists. States can apply a range of options to determine the edge, then must submit the proposed claim to the Commission on the Limits of the Continental Shelf, a body established by the Convention. The Commission checks the claim based on data submitted by the applicant country. The U.N. also invites comments from other countries.

Russia submitted a claim to exercise jurisdiction beyond 200 nautical miles in 2001. The Commission requested further data. Interestingly, Canada's response was to decline to comment on the Russian submission on the basis of a lack of data (the position adopted by Denmark). The United States submitted a detailed critique of the Russian position which, it claimed, had not been made out. The point about the recent flurry of activity is that Moscow is trying again, and has every right to do so. However, it is clear that, as a creature of the 1982 Convention, the Commission must apply the rules laid down therein. The U.S. comment called for there to be no slackening of the criteria to be applied in these cases.

But media-fuelled discussion of a "carve-up" of the Arctic is very far-fetched. The Convention does not allow a state to make a maritime claim beyond 350 nautical miles in any circumstances. But 350 nautical miles from what? The only answer can be "land", and this is where the myriad of islands in the Arctic Ocean become important. However, the Convention also does not allow "rocks" that cannot sustain human habitation or which cannot have an economic life of their own to be used for claiming continental shelf (or Exclusive Economic Zone) rights. This has proved very contentious in many parts of the world: states do not like giving up claims. But Britain withdrew its claim to the shelf and EEZ around the Northeast Atlantic island of Rockall when it ratified the Convention.

So what is the jurisdictional position beyond either the 200 nautical mile limit or the edge of the margin or 350 nautical miles? The seabed beyond national jurisdiction is deemed to be part of the Common Heritage of Mankind, and mineral rights are allocated by the International Seabed Authority in Jamaica (yet another body established by the Convention). The ISA certainly thinks that a good part of the Arctic is common heritage.

Applying the law to the situation clarifies things to a great extent. States cannot claim the seabed beyond territorial waters, they can claim rights over it, which is a very different thing. And the extent to which such a claim can be made is set forth in the 1982 Convention and generally accepted rules of international law. One might also note that Russia's position is at least complicated by the fact that at least two maritime neighbours, Norway and the United States, have made it clear that they have serious delimitation issues with Moscow, while Japan continues to insist on the return of islands occupied by th e Red Army in 1945 (and which Russia has included as part of its submission to the Commission on Outer Limits). Canada, for its part, indicated that it reserved its position on the matter of delimitation between this country and the Russian Federation.

In conclusion, then, it can be argued that much of the comment and debate surrounding Arctic jurisdiction is the result of certain individuals being less than well informed concerning some rather basic rules of international law. Those who wish to claim the attention of others on these matters should at least know what is meant by "territory" and "ownership". While questions such as the meaning of "rocks that cannot sustain human life" raise genuinely problematic legal issues, others should be regarded as basic. Global warming is, as we know, causing astounding changes in the Polar Regions. One of the consequences may be that more and more shipping companies are eyeing the Northwest Passage as part of a route between the Pacific and Atlantic. The 1985 straight baselines mean that the waters of the Canadian Arctic archipelago are internal waters, subject to absolute sovereignty, within which no right of innocent passage exists. The United States has always resisted this claim.

The rules on straight baselines are simple. They are intended to facilitate the drawing of the limits to the zones of maritime jurisdiction where there the coast is "fringed" with islands, or deeply indented. The coastline of northern British Columbia features both. But the Arctic islands are not a "fringe". The rules on baselines are much abused worldwide, but that does not mean that Canada should connive at this. It may be time for this country to revive the idea of the coastal archipelago, a proposal that was rejected by the Conference that drafted the 1982 Convention while the concept of the archipelagic state itself was accepted (such states are allowed to draw archipelagic baselines around their outermost islands, and claim sovereignty over the waters thus enclosed). But this rejection does not in and of itself mean that the idea is unlawful. It might be possible to develop it as a rule of customary international law. Arguably, this is a more principled position than trying to stretch the rules on straight baselines.

The United States claims that the Northwest Passage should be open to all ships because it is a "strait used for international navigation". If this phrase is intended to apply to the waterways such as the Straits of Dover, Malacca, Gibraltar, and the like, then the Passage cannot be considered even remotely to be in this category. It would have been more widely used had it not been for the ice. This question presents several problems, and the first one might well be the lack of international precedent. But if the framers of the Convention intended to keep open straits that had been established as crucial to international navigation, then Canada could certainly argue that the rule was intended to apply to things as they are, not as they might be.

It would seem that the case for a clear, coordinated and principled approach to Canadian Arctic policy based on awareness of the issues arising is required. In the Arctic as a whole, though, Canadian officials and media are once again in danger of presenting a confused and confusing face to the world, one that those genuinely concerned for the peoples of the North and the problems confronting them find hard to countenance.

Ian's September 2007 article on Kosovo


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