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Not a Carve-up
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? ...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. |
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