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Use It Or Lose It”: an Appropriate and Wise Slogan?

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Use It Or Lose It”: an Appropriate and Wise Slogan? “USE IT OR LOSE IT”: AN APPROPRIATE AND WISE SLOGAN? Kristin Bartenstein Kristin Bartenstein analyzes, from a legal perspective, the political slogan “Use it or lose it” that the Harper government coined in 2007 for its sovereignty policy in the Arctic. She argues that fear of losing sovereignty is only relevant in the marine parts of the Canadian Arctic. For each marine zone she examines the correctness of the slogan in the light of international law. She concludes that the slogan is inaccurate with respect to jurisdiction over the resources of the water column, the sea bed and the subsoil; and it might even be risky in the context of Canadian claims of sovereignty over the Arctic Archipelago and the Northwest Passage. « Exercer notre souveraineté dans l’Arctique ou la perdre » : ce slogan créé en 2007 par le gouvernement Harper est analysé d’un point de vue juridique dans cet article de Kristin Bartenstein. Toute crainte de perdre cette souveraineté peut uniquement concerner les zones marines de l’Arctique canadien, soutient-elle, avant d’examiner pour chacune de ces zones la justesse du slogan à la lumière des règles applicables du droit international. Elle conclut à son inexactitude pour ce qui est de la relative juridiction aux ressources de la colonne d’eau tout autant qu’au plancher océanique et au sous-sol. Et elle le juge même hasardeux en ce qui a trait aux revendications du Canada dans l’archipel Arctique et le passage du Nord-Ouest. “ anada has a choice when it comes to defending our in 2008 — that the rules set forth by international law must be sovereignty over the Arctic. We either use it or lose observed. A two-step analysis addressing the issues of resources C it. And make no mistake, this government intends and navigation will provide an opportunity to determine if to use it. Because Canada’s Arctic is central to our national the “Use it or lose it” slogan is appropriate and wise in the con- identity as a northern nation. It is part of our history. And text of legal issues relating to sovereignty in the Arctic. it represents the tremendous potential of our future.” With this declaration in 2007, Canadian Prime t the outset, it is worth recalling several facts regarding Minister Stephen Harper launched his campaign to reinvest A Canada’s legal situation in the Arctic. Prior to 2003, cus- in the Far North, both politically and economically. This tomary law and the 1958 Geneva Convention on the statement implies that Canada must choose whether to use Continental Shelf were the only sources of law applicable to its sovereignty, at the risk of losing it. It is questionable the Canadian Arctic, as Canada did not become a party to whether Canada is actually forced to choose between using UNCLOS until then. Since 1970, Canada’s territorial sea has and losing its sovereignty. The declaration could be a mere- had a breadth of 12 nautical miles, and Canada claims the ly political slogan that conveys the interest of Canada’s waters of its Arctic archipelago as internal waters. As of 1986, politicians in the Arctic or, worse, it could even imply a this claim, previously justified by an uncertain historic title, legal interpretation that could negatively affect claims on is based on straight baselines drawn around the archipelago. Canadian Arctic waters. Canada also contests that the Northwest Passage is an inter- This article addresses these questions by examining the national strait, as the United States asserts. Like all other state of law, including customary law and the rules of the UN states bordering the Arctic Ocean, Canada is currently collect- Convention on the Law of the Sea (UNCLOS) and the relevant ing evidence that its continental shelf extends beyond 200 jurisprudence of the International Court of Justice (ICJ). nautical miles. Indeed, Canada, along with its circumpolar counterparts, This said, it is important to underline that Canada’s sov- recently recognized — through the Ilulissat Declaration made ereignty over the Arctic mainland and islands is unanimously POLICY OPTIONS 69 JULY-AUGUST 2010 Kristin Bartenstein recognized, with Hans Island being the zone (EEZ). The same reasoning LOS). This signifies that even if only exception. This is remarkable as, applies to the continental shelf that Canada decides not to exercise its sov- despite the word “island” in its name, completes the sea areas off the states’ ereign rights (exploration and Hans Island is nothing more than a coasts. Box 1 briefly describes each exploitation of its continental shelf), small, uninhabited and uninhabitable marine area, as defined by UNCLOS, this will not result in any loss of its rock situated between Canada and which must be distinguished in order rights. This also holds true for the Greenland. Its only significance is polit- to understand whether and, if so, to extended continental shelf that ical in nature, as neither Canada nor what extent the coastal state must stretches beyond 200 nautical miles. Denmark wishes to abandon its claim exercise its sovereign powers over Certainly, Canada must prove, in over it. Apart from Hans Island, there is resources, navigation and maritime accordance with the geological and no disputing that the vast land area in areas to preserve them. geomorphological criteria set by UNC- the Canadian Arctic is subject to The powers of the coastal state LOS, that the extended continental Canadian sovereignty. over these areas vary as a result of the shelf is part of its territory. In order to Yet a sovereign state does not lose different ways states’ conflicting inter- benefit from the legal certainty provid- its sovereignty over a territory simply ests in the oceans have been recon- ed by UNCLOS, Canada has to base the because its administration is limited or ciled. Evidently, coastal states claim outer limits of its continental shelf on nonexistent in some areas. This is power over the waters bordering their the recommendations of a United especially true in the Canadian Arctic, coasts principally for reasons of Nations committee. Canada must sub- which is an inhospitable environment, national security and to benefit from mit the justifying data to the commit- and one where human presence is the resources to be found in them. tee by 2013 and has been gathering it often limited in time (for the duration However, other states may have a legit- for several years now. Nevertheless, of an employment contract) or imate interest in these resources to, for should Canada abstain from benefit- requires extraordinary adaptation to example, ensure food security and ing from an extended continental cope with harsh climatic and meteoro- contribute to their economic develop- shelf, another state is not entitled to logical conditions (Inuit people). ment. In addition, these other states make a claim over it in its place. The Usucaption, the complete and pro- claim the right to use the seaways with rules are intended to ensure that each longed abandonment by one state proximity to the coasts, given their state has jurisdiction only over “its combined with its takeover by another strategic and economic value. own” extended continental shelf. Yet, state, is the only situation in which once the extent of its shelf has been one state may eventually lose its sover- o does Canada risk losing its sover- determined according to the applica- eignty over a given territory to anoth- S eignty over resources in the Arctic ble rules, Canada is granted sovereign er state. At this point, there is no if it does not exercise its powers? powers with regard to the exploration threat of usucaption of Canadian Relating to resources, the situation and exploitation of the resources, Arctic territory. is clear with regard to the continental including the decision, for reasons of shelf. The sovereign rights of a coastal economic efficiency, not to take he concern of losing sovereignty state over this marine area “do not advantage of them. T in the Arctic is thus related rather depend on occupation, effective or In contrast to the continental to marine territory. This includes the notional, or on any express proclama- shelf up to 200 nautical miles, the EEZ waters off the Canadian Arctic coasts — tion” (article 77 of UNCLOS). In other must be established by the coastal especially the Northwest It is important to underline that Canada’s sovereignty over Passage, a set of seaways through the Canadian the Arctic mainland and islands is unanimously recognized, Arctic Archipelago — as well with Hans Island being the only exception. Apart from Hans as the submerged parts that Island, there is no disputing that the vast land area in the form the continental shelf Canadian Arctic is subject to Canadian sovereignty. and particularly the conti- nental shelf beyond 200 nautical miles. words, the entitlement of the coastal state prior to the enjoyment of its sov- As the ICJ said in the Anglo- state over its continental shelf is auto- ereign powers over its resources. Norwegian Fisheries case, “It is the land matic. Moreover, a state’s sovereign Canada established its EEZ through its which confers upon the coastal State a rights are “exclusive in the sense that if Oceans Act. Given the importance of right to the waters off its coasts.” The the coastal state does not explore the its living resources, UNCLOS requires waters referred to are the internal continental shelf or exploit its natural optimum utilization of the EEZ, while waters; the territorial sea, which can resources, no one may undertake these respecting the conservation of the sometimes form an international activities without the express consent stocks. If a state does not have the strait; and the exclusive economic of the coastal State” (article 77 of UNC- capacity to yield the entire volume by 70 OPTIONS POLITIQUES JUILLET-AOÛT 2010 “Use it or lose it”: An appropriate and wise slogan? itself, it shall give other states access sovereign right to do so.
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