Legality of Canada's Claims to the Waters of Its Arctic Archipelago

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THE LEGALITY OF CANADA'S CLAIMS TO THE WATERS OF ITS ARCTIC ARCHIPELAGO

Mark Killas*

I. INTRODUCTION

Prompted by the voyage of the United States Coast Guard vessel Polar Sea, the Canadian government established a system of baselines around the Canadian Arctic archipelago effective as of January 1, 1986. The system contains both straight baselines (joining designated basepoints on the mainland) and segments of the normal baseline for measuring the breadth of the territorial sea from the low-water line along the coast.I The baselines, drawn around the outer perimeter of the Canadian Arctic archipelago, enclose the waters of the archipelago as internal and delimit the breadth of the territorial sea and other maritime zones. Al- though the delimitation by a state of its territorial waters is necessarily a unilateral act, its validity is governed by international law. International law sanctions the use of straight baselines only in specific, geographically defined circumstances. The Canadian Arctic is a unique locality which does not fit neatly into any established category; rather, it is a hybrid situation with elements of each category. The Cana- dian baseline system can be afforded international validity only if the legal justification is based on analogy and common sense.

IX. THE BACKGROUND

The 1969 Arctic voyage by the Manhattan, a tanker operated by Humble Oil and Refining Company (now Exxon), caught the young Liberal government of Prime Minister Trudeau embarrassingly unprepared. Canada had never formally established its sovereignty claim to the waters of its Arctic archipelago by drawing straight baselines to enclose the island group. No Canadian legislation defined the legal status of the waters of the Canadian Arctic archipelago in general or those of the

* LL.B. (Bristol). The author wishes to thank Dr. C.R. Symmons of the Faculty of Law, Bristol University. I Convention on the TerritorialSea and the Contiguous Zone, 29 April 1958, U.N. Doe. A/Conf. 13/L.52, 516 U.N.T.S. 205, art. 3 [hereinafter Territorial Sea Convention]. Article 3 provides: Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along "the coast as marked on large-scale charts officially recognized by the coastal States. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 19:1

Northwest Passage in particular. Neither the Manhattan's challenge to Canadian sovereignty nor the threat to the region's delicate environment posed by the prospect of oil-tanker traffic prompted the government to take any definitive legislative steps. Instead, Canada continued to pursue its functional strategy by advancing arguments that together are tanta- mount to a de facto, as distinguished from a de jure, sovereignty claim.2 These tactics had been derided by some foreign critics as amounting to a policy of "creeping jurisdiction".3 After 1969, however, the government chose to advance its functional strategy in three ways. First, Ottawa declared a 12-mile territorial limit along all of its coastlines. 4 On April 17, 1970, during the second reading of Bill C-203, 5 the then Secretary of State for External Affairs, Mr. Sharp, moved to amend the TerritorialSea and Fishing Zones Act6 so as to extend the territorial waters of Canada from three to twelve miles. Second, the Arctic Waters Pollution PreventionAct 7 (1970), created an "anti-pollution" zone which extended up to one hundred miles from Canada's Arctic coast. The Act forbade pollution and imposed penalties for failure to comply with strict pollution standards. At the same time, Canada modified its acceptance of the compulsory jurisdiction of the World Court under the "optional clause" contained in article 36 of the Statute of the InternationalCourt of Justice,' making it clear that Canada would not accept the Court's jurisdiction regarding issues arising out of Canada's anti-pollution measures. The United States reacted sharply by publicly criticizing Canada for acting unilaterally instead of pursuing change by international agreement, 9 even though such international agreement would likely not have been forthcoming. The Act of 1970 has never been accepted by Washington.lO Interestingly, the Soviet Union, one of the five Arctic nations, supports Canada's anti-pollution measures. '

2 D. Johnston, CANADA AND THENEW INTERNATIONAL LAW OF THE SEA(Toronto: University of Toronto Press, 1985) at 18 [hereinafter Johnston]. 3 Ibid. 4 The TerritorialSea Convention, supra, note 1, does not contain a basic rule on the width of the territorial sea. 5 Enacted as An Act to amend the TerritorialSea and Fishing Zones Act, R.S.C. 1970 (Ist Supp.), c. 45, s. 1. 6 R.S.C. 1970, c. T-7. 7 R.S.C. 1970 (1st Supp.), c. 2. 8 Statute of the InternationalCourt of Justice, I.C.J. Acts and Documents, No. 3 at 75. 9 See L. Henkin, Arctic Anti-Pollution:Does CanadaMake orBreakInternational Law? (1971) 65 AM. J. INT'L L. 131 at 131 [hereinafter Henkin]. 10 Although on August 1, 1985, Ottawa received assurances that the Americans had taken steps to ensure that the Polar Sea complied with Canada's anti-pollution standards and that it would be responsible for costs and damages in the event of pollution. 11 See J.A. Beesley, Rights and Responsibility of Arctic Coastal States: The CanadianView (1971-72) 3 J. OFMAR. L. & COM. I at 5. 1987] Canada's Claims to its Arctic Archipelago

In the 1950's, several Latin-American states made similar controversial claims to "jurisdictional or sovereign rights to vast expanses of adjacent seas". 1 2 Pursuant to the Santiago Declarationof 1952,13 Chile, Peru and Equador sought to establish a common policy on maritime claims and each proclaimed 200-mile maritime zones.14 As well, islands were declared to generate the same zones as the continental coastlines. Despite these early declarations, the creation of the 100-mile anti- pollution zone proclaimed by Canada in 1970, under which the Canadian Arctic islands were expressly stated to generate this jurisdictional area,15 was the centre of much controversy. "Canada has struck a blow against pollution, and for today's crusade for the environment", wrote Henkin, "but it is a blow also at international law and its law of lawmaking."'16 In a critique of Canada's functional strategy, political economist Franklyn Griffiths wrote:

The Arctic Waters Pollution Prevention Act was very largely a fig leaf for the maple leaf: it was primarily a means of defending sovereignty, and was not followed up by the sizeable increase in scientific research and other activity that would have demonstrated an enduring ecological interest in the Arctic as well as the pressing need to act politically. 17

In the House of Commons the fear was expressed that the lack of a specific claim to sovereignty amounted to a weakening or abandoning of the Canadian archipelagic claim. After the introduction of the Arctic Waters Pollution PreventionBill, Mr. Sharp, in response to a question by Mr. Stanfield,is stated: "We claim these to be Canadian 'internal' waters.

12 C.R. Symmons, THE MARITIME ZONES OF ISLANDS IN INTERNATIONAL LAW (The Hague: Martinus Nijhoff, 1979) at 112-3 [hereinafter Symmons]. 13 Santiago Declaration on the Maritime Zone, reproduced in U.N. Doc. ST/ LEG/SER. B/6 at 723-4, and in K. Hjertonsson, THE NEw LAW OF THE SEA: INFLUENCE OF THE LATIN AMERICAN STATES ON RECENT DEVELOPMENTS OF THE LAW OF THE SEA (Stockholm: P.A. Norstedt & S6ners F6rlag, 1973) at 24-5 [hereinafter Hjertonsson]. 14 Symmons, supra, note 12 at 113. The maritime zones were declared: Chile, by the Presidential Declaration Concerning the Continental Shelf of 23 June 1947; Peru, by Supreme Resolution No. 23 of 12 January 1955, El Peruano, 29 January 1955; Ecuador, by Executive Decree No. 275 of 7 February 1955, Registro Oficial, 24 January 1956. See Hjertonsson, ibid. at 47- 55. I5 Arctic Waters Pollution Prevention Act, R.S.C. 1970 (1st Supp.), c. 2, s. 3(1). See Symmons, supra, note 12 at 113; S. Lay, R. Churchill & M. Nordquist eds., NEw DIRECTIONS IN THE LAw OF THE SEA. Vol. I (New York: Oceana, 1973) at 200. 16 Henkin, supra, note 9 at 135. 17 F Griffiths, Canadian Sovereignty and Arctic InternationalRelations in E. Dosman, ed., THE ARCTIC INQUESTION (Toronto: Oxford University Press, 1976) 140 at 157 (emphasis added). IS Remarks by Mr. Stanfield, the then Leader of the Opposition: Canada, H.C. Debates at 5941-3 (16 April 1970). Ottawa Law ReviewlRevue de droit d'Ottawa [Vol. 19:1

We regard the waters between the islands as our waters, and we always have." 19 The third way in which the government chose to advance its functional strategy was that the Canadian delegation played its Arctic hand at the Third United Nation's Conference on the Law of the Sea (U.N.C.L.O.S. III) with "subtlety and sophistication". 20 The consensus reached at the Conference was beneficial to Canada's Arctic Sovereignty problem in several respects. There was consensus, to paraphrase Johnston, 21 on the following points: (a) There was agreement on a uniform 12-mile territorial sea [Law of the Sea Convention, article 322]. The "sovereignty" of a coastal state extends beyond its land territory and internal waters to the territorial sea [article 2(1)]. This sovereignty extends to the air space over the territorial sea as well as to its seabed and subsoil [article 2(2)]. This means that Canada exercises the full authority inherent in this sovereignty in all Arctic straits and entrances to the Northwest Passage that are less than twenty-four miles in width. (b) The Conference contributed to the clarification and broadening of the regime of internal waters on the landward side of the baseline of the territorial sea, through the acceptance of the criteria set out in the TerritorialSea Convention, 1958, for the delineation of the baseline of the territorial sea [articles 7-14] and through the creation of a new regime of mid-oceanic archipelagic states [articles 46-54]. The latter provisions make it easier for Canada to argue analogically that it is entitled under the new law of the sea to enclose large areas of internal or archipelagic waters in the Arctic. (c) At U.N.C.L.O.S. III there was not reformulation of the provisions on internationalstraits in a way which might be read as including the Northwest Passage in that Category. This is particularly important as it was agreed to guarantee the "right of transit passage" through "straits used for international navigation" [articles 34-44]. It is still open to Canada to maintain that, on the facts of history, the Passage is not "used for international navigation". (d) The legitimization of the exclusive economic zone at U.N.C.L.O.S. III secured Canada's sovereign rights to all resources, both living and non-living, within 200 miles of the baseline of Canada's territorial sea. At Caracas, Canada emphasized its view that islands generate this zone. (e) An expansive regime for the continental shelf was agreed upon. Again the question of islands featured prominently in the discus- sions.

19 Canada, H.C. Debates at 5953 (16 April 1970). 20 See Johnston, supra, note 2 at 18. 21 Ibid. at 18-20. 22 Convention on the Law of the Sea, 7 October 1982, U.N. Doc. A/Conf. 62/ 122, 21 I.L.M. 1261 [hereinafter Law of the Sea Convention]. 1987] Canada'sClaims to its Arctic Archipelago

(f) Canada successfully negotiated special fights for coastal states to control pollution in ice-covered areas: "The right to adopt and enforce nondiscriminatory 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." [article 234].

Sixteen years after the Manhattan's "incursion", Ottawa was again caught unprepared. The United States Coast Guard vessel PolarSea began its twelve-day voyage on August 2, 1985 at Thule, Greenland. Entering "Canadian waters" at Lancaster Sound, the PolarSea travelled through the narrow Barrow Strait and the Viscount Melville Sound before leaving the Arctic archipelago by way of the Prince of Wales Strait and Amundsen Gulf. Its destination was Point Barrow, Alaska. The short journey excited nationalist furor and increased awareness of the issue of Canadian sovereignty in the Arctic. In the House of Commons, Mr. Chretien attacked the government, saying: If it is true that there is a policy of friendship with the Government of the United States, it is a shame that President Reagan sent a quasi military ship in our water[s] this summer despite the requests and pleas of the Secretary of State for External Affairs. If we had a Prime Minister who did not always go to the President on his knees, we would have been in the position to challenge the President and say that we will not tolerate23 such action. We would not be put in the shameful position we are today.

While the United States respects Canadian claims to sovereignty over the islands of the Arctic archipelago, it does not recognize Canada's sovereignty to the Northwest Passage. The basic American position, which has been asserted firmly and consistently, is that the narrow semi- charted strait that winds some seven hundred miles from Baffin Bay to the Beauford Sea is an international strait through which the ships of all nations have the right to pass unchallenged and unrestricted. The United States views as high seas those areas where there is no overlap of the territorial sea generated by the Arctic islands. By demanding advance notice of passage, Canada would appear to be claiming the waters of the Arctic archipelago as internal waters.24 As

23 Canada, H.C. Debates at 6465 (10 September 1985). 24 See Letters of the External Affairs Department, cited in E. Lee, Canadian Practicein InternationalLawduring 1973 as Reflected Mainly in Public Correspondence and Statements of the Department of External Affairs (1974) 12 CAN. Y.B. INT'L L. 272 at 279 [hereinafter Lee]. Ottawa Law ReviewlRevue de droit d'Ottawa [Vol. 19:1 such they would form part of the sovereign territory of Canada and would be subject to its exclusive control. Such a status for these waters would give Canada complete control over all shipping in the Northwest Passage and enable it to set whatever conditions are necessary to guarantee the security of the country, protect the environment, ensure the orderly development of the resources and respect the rights of the Inuit.25 There are other indications that Canada views these waters as internal waters. In a letter dated February 27, 1973, the Legal Bureau wrote: "It has been the Canadian position that the waters of the Arctic archipelago are part of the internal waters of Canada." 26 A statement issued on August 1, 1985, on behalf of the Ministers of External Affairs, Transport, and Indian and Northern Affairs, declared: "The Government of Canada has made clear that the waters of the Arctic Archipelago, including the North- west Passage, are internal waters of Canada and fall within Canadian sovereignty." 27 On August 22, 1985, in a vague statement devoid of legal precision, Prime Minister Mulroney had this to add: "There is no doubt that the Northwest Passage and that part of the world belong to Canada. It is ours. We assert our sovereignty over it and even though we were left with few instruments by the previous government, we shall assert our sovereignty over it."28 Canada's Arctic sovereignty was finally articulated with clarity by Mr. Clark, Secretary of State for External Affairs, in the House of Com- mons on September 10, 1985. It is possible to discern some attention to the legal nature of Canada's Arctic claim in Mr. Clark's largely political statement. In particular, care has been taken to emphasize the unity and the unique environmental conditions of the frozen north. Mr. Clark stated:

Canada is an Arctic nation. The international community has long recognized that the Arctic mainland and islands are a part of Canada, it is a part of Canadian greatness. The policy of the Government is to preserve that Canadian greatness undiminished. Canada's sovereignty in the Arctic is indivisible. It embraces land sea and ice. It extends without interruption to the seaward- facing coasts of the Arctic islands. These islands are joined, and not divided, by the waters between them. They are bridgedfor most of the year by ice. From time immemorial Canada's Innuit [sic] people have used and occupied the ice as they have used and occupied the land. The policy of the Government is to maintain the natural unity of the Canadian Arctic archipelago and to preserve Canada's sovereignty over land, sea and ice undiminished and un- divided.29

25 However, it seems unlikely that Canada could avoid the provisions of article 5(2) of the TerritorialSea Convention, supra, note I. 26 See Lee, supra, note 24 at 283 (emphasis added). 27 Statement issued for the Ministers of External Affairs, Transport and Indian and Northern Affairs (I August 1985). 28 "P.M.'s Stand on Arctic toughest yet", The [Toronto] Globe and Mail (23 August 1985) 4. 29 Canada, H.C. Debates at 6461 (10 September 1985) (emphasis added). 1987] Canada's Claims to its Arctic Archipelago

On September 10, 1985, the government signed an order-in-council establishing a system of baselines around the outer perimeter of the Canadian Arctic archipelago, effective as of January 1, 1986.30 This system contains both straight baselines and the normal baseline for measuring the breadth of the territorial sea from the low-water line along the coast. These baselines "define the outer limit of Canada's historic internal waters". 3' Mr. Clark emphasized that "Canada's territorial waters extend 12 miles seaward off the baselines." He added, "Canada's jurisdiction over its continental margin and 200-mile fishing zone is unchallenged in the Arctic as elsewhere. Canada also exercises jurisdiction over a 100- mile pollution prevention zone in Arctic waters, in order to protect the unique ecological balance in the area." 32 By taking these measures, the Canadian government did what some Canadians had been advocating since the Manhattan's expedition. Al- ready in 1973, one such Canadian, Pharand, asserted: "[t]he best solution might be for Canada to draw straight baselines and invoke history as an element of support in justifying the baselines".33 At the time the above statement was made, however, Pharand did point out that the delimitation by a state of its territorial waters must be made in accordance with international law. "The act of delimitation is governed by domestic law but its international validity is governed by international law." 34 This point was made clear in 1951 by the International Court of Justice in the Anglo-Norwegian Fisheries Case, wherein it was stated:

The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon interna- 35 tional law.

If the order-in-council establishing the baseline system is viewed as a tacit recognition of the counsel of Pharand, then his comments on the legal justification for such an arrangement are important. For Pharand, the validity in international law of the delimitation is to be found in the Anglo-Norvegian Fisheries Case. He stated:

If you take a close look at the Court's judgment in the Fisheries Case, you will notice that the Court emphasized throughout its reasoning the special

30 TerritorialSea GeographicalCo-ordinates (Area 7) Order, P.C. 1985-2739, S.O.R.185-872, 119 Can. Gazette, Pt. II, 3996 (10 September 1985). -1 Canada, H.C. Debates at 6463 (10 September 1985). 32 Canada, H.C. Debates at 6463 (10 September 1985). 33 D. Pharand, THE LAW OFTHE SEA OFTHE ARCTIC (Ottawa: University of Ottawa Press, 1973) at 66. 34 Ibid. 35 Anglo-Norwegian Fisheries Case (U.K. v. Nor.) (1951), [1951] I.C.J. 116 at 132 [hereinafter Anglo-Norvegian Fisheries Case]. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 19:1

physical reality of the situation, and that physical reality happened to be a fringe of islands along the coast. It seems to me that that decision could still be invoked in order to justify those baselines. What I am saying to you, in effect, is that if I had to advise the Canadian government to find a proper legal basis for the drawing of those straight baselines, I would say, don't rely on the TerritorialSea Convention, of which, in any event,36 you are not a party, and rely instead on the NorwegianFisheries Case.

The subject of dispute in the Anglo-Norwegian Fisheries Case of 1951 was the validity under international law of the lines of delimitation of the Norwegian "fishery zone" (by which was meant its territorial sea) laid down by the Royal Decree of July 12, 1935, and covering almost 37 one thousand miles of coastline situated northward of 60028'48" north. The International Court of Justice in that case held that the use of straight baselines by Norway for the delimitation of the fishery zone was not contrary to international law. The Court concluded that "the method of straight lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast." 38 The type of geography which warranted a departure from the normal rule of the low-water mark was described in the following terms:

Where the coast is deeply indented and cut into, as is that of Eastern Finnmark, 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 geometric construc- 39 tion.

Although the Norwegian solution was said to be "dictated by geo- graphicalrealities", 40 the Court attached some importance to other factors, saying:

In its view, these rules of international law take into account the diversity of facts and therefore, concede that the drawing of baselines must be adapted to the special conditions obtaining in different regions. In its view, the system of delimitation applied in 1935, a system characterized by the use of straight lines, does not therefore infringe the general law; it is an adaptationrendered necessary by local conditions.41

The special local conditions considered relevant by the Court included the economic realities of the Norwegian fisheries. The Court stated: "In these barren regions the inhabitants of the coastal zone derive

36 D. Pharand, quoted in response to a question by Lewis Alexander, at a question and answer session following a presentation on polar regions. 37 See Anglo-Norwegian Fisheries Case, supra, note 35 at 125 for a description of the Norwegian Royal Decree of 12 July 1935. 38 Supra, note 35 at 139. 39 Ibid. at 128-9. 40 Ibid. at 128 (emphasis added). 41 Ibid. at 133 (emphasis added). 1987] Canada'sClaims to its Arctic Archipelago their livelihood essentially from fishing." 42 There is, however, no specific mention of particular interests other than the economic. This emphasis on economics is reinforced by the inclusion of "economic interests peculiar to the region" as a factor that may be considered when drawing straight baselines under article 4(4) of the TerritorialSea Convention43 and under article 7(5) of the Law of the Sea Convention.44 In contrast to the economic impetus behind the Norwegian Royal Decree of July 12, 1935, 45 the Canadian order-in-council of 198546 was inspired by the issue of "Arctic sovereignty". The main function of the Canadian baseline system is to strengthen Canadian sovereignty and security. The fishing rights and economic interests of the Inuit are of secondary importance. No fishing industry exists in northern Canada that can be compared to the major Norwegian industry, the "reality and the importance of which are clearly evidenced by long usage". 4 7 Mr. Clark showed the emphasis placed on Canada's security when he stated emphatically in the House of Commons that:

The exercise of functional jurisdiction in Arctic waters is essential to Canadian interests. But it can never serve as a substitute for the exercise of Canada's full sovereignty over the waters of the Arctic archipelago. Only full sovereignty protects the full range of Canada's interests. Thisfull sovereignty is vital to Canadiansecurity. It is vital to Canada's Inuit people. And it is vital to Canada's nationhood. The policy of this government is to exercise Canada's full sovereignty in and over the Arctic archipelago. We will accept no substi- 4 tutes. 8 The Canadian baseline system begins in the West at the border with Alaska, continues around the outer perimeter of the Arctic archipelago, and finally joins existing straight baselines in northern Labrador. Straight baselines were drawn around fringing islands of the deeply indented coastline of Newfoundland on November 8, 1967. 49 In the case of New- foundland, however, an established fishing industry is of great importance to the economy of the province. It appears that in 1967 this limited use of straight baselines was deemed sufficient to protect the economic interests of the region. The Manhattan had not yet undertaken its voyage, which was to lead to new roles being envisaged for straight baselines. An important question that is raised is whether the purposes of securing sovereignty over a region and protecting national security, widely

42 Ibid. at 128. 43 Supra, note 1. 44 Supra, note 22. 45 See supra, note 37. 46 See supra, note 30. 47 TerritorialSea Convention, supra, note 1, art. 4(4). 43 Canada, H.C. Debates at 6463 (10 September 1985) (emphasis added). 49 V. Prescott, StraightBaselines:Theory andPractice(paper given at 19th Annual Conference of the Law of the Sea Institute at Cardiff, July 25, 1985) at table 2 [hereinafter Prescott]. Ottawa Law ReviewlRevue de droit d'Ottawa [Vol. 19:1

defined, are consistent with the emphasis on economic interests in the Anglo-Norwegian Fisheries Case.50 That judgment contains no direct reference to matters other than the economic needs of the population; however, this is not surprising as the Court was deciding a case between two parties. The validity of the Norwegian fishery zone was the matter in issue. By analogy, the principles of the Anglo-Norwegian Fisheries Case could be extended to include other social necessities such as security. The Court at one point spoke about the interests of a coastal state in general terms. It said, "a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practicalneeds and local requirements".5' This sentence is sufficiently wide to include a full range of social demands. Furthermore, in theAnglo-NorwegianFisheries Case, Judge Alvarez spoke of the double task of the Court; the resolution of cases submitted to it and the development of the law of nations. Rapid and profound changes in international life, which have greatly affected the law of nations, underline the importance of the Court's second function. He stressed the necessity of the adaptation of the law of nations to the new international conditions:

For it now happens with greater frequency than formerly that, on a given topic, no applicable precepts are to be found, or that those which do exist present lacunae or appear to be obsolete, that is to say, they no longer correspond to the new conditions of the life of peoples. In all such cases, the Court must develop the law of nations, that is to say, it must remedy its shortcomings, adapt existing principles to these new conditions and, even if 2 no principles exist, create principles in conformity with such conditions.5 Judge Alvarez continued:

In short, the case of maritime and river routes, it is not possible to contemplate the laying down of uniform rules; the rules must accord with the realities of international life. In place of uniformity of rules it is necessary to have variety; but the general interest must always be taken into account.5 3

Recent technological developments have meant that the commercial and military exploitation of the frozen Arctic has become a reality. The feasibility of using the Northwest Passage as a regular shipping route, and the advent of nuclear submarines that can remain hidden under the Arctic ice for extended periods of time, have profound implications for the international scene. Dicta of Judge Alvarez indicate that today the Court would consider the effect that such changes have had and should have on the law of nations. It appears that the Court would not be constricted by a narrow construction of the Anglo-Norwegian Fisheries Case.

50 Supra, note 35. 51 Ibid. at 133 (emphasis added). 52 Ibid. at 146 (emphasis added). 53 Ibid. at 151. 19871 Canada's Claims to its Arctic Archipelago

III. STRAIGHT BASELINES FOR THE ARCTIC ARCHIPELAGO

In only two geographically defined circumstances does international law sanction the employment of the method of straight baselines in drawing the baseline from which the breadth of the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf shall be measured5 4 First, "straight baselines" may be used in "localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast". The criteria for such a delineation are contained in article 4 of the TerritorialSea Convention and in article 7 of the Law of the Sea Convention. Second, as a result of U.N.C.L.O.S. III, a new regime was created by which an archipelagic state, as defined in article 46 of the 1982 Convention, may draw straight "archipelagic baselines" joining the outermost points of the outermost islands and drying reefs of the archipelago (article 47). U.N.C.L.O.S. III did not deal with the claims which many states might make to a special status as a coastal archipelagicstate. 55 This does not, however, preclude Canada from re- sorting by analogy to the argument that as such a state, it is entitled to enclose large areas of the Arctic as either internal or archipelagic waters. The technique of delimiting territorial waters from straight baselines has been developed by Norway since 1812. The Norwegian straight baseline system was approved, and the method articulated as a rule of law, by the International Court of Justice in the Anglo-Norwegian Fish- eries Case.56 The legal principle was somewhat reworded by the Inter- national Law Commission in 195657 and was again refined for codification in the TerritorialSea Convention.58 It was retained with almost identical wording by consensus at U.N.C.L.O.S. I1159 for the Law of the Sea Convention in 1982. The decision of the International Court of Justice in 1951 is of great importance because the judges looked at the dispute with an eye to the double task of the Court: the "resolution of cases submitted to it and the development of the law of nations".60 However, international law knows no rule of stare decisis. "The decision of the Court has no binding force

54 This is in addition to provisions for bay closing lines: TerritorialSea Conven- tion, supra, note 1, art. 7; Law of the Sea Convention, supra, note 22, art. 10; and lines for river mouths (Convention on the Law of the Sea, ibid., art. 9). 55 D. Johnston uses this term which is not a term of art, in CANADA AND THE NEW INTERNATIONAL LAw OF THE SEA, supra, note 2 at 19. 56 Supra, note 35. 57 Report of the InternationalLaw Commission to the GeneralAssembly, 11 U.N. GAOR Supp. (No. 9) at 4, 13-4, U.N. Doc. A/3159 (1956). 58 Supra, note I, art. 4. 59 See B. Buzan, Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea (1981) 75 AM. J. INT'L L. 324. 60 Anglo-Norwegian FisheriesCase, supra, note 35 at 134, Alvarez J. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 19:1 except between the parties and in respect of that particular case." 61 Never- theless, judicial decisions of the International Court of Justice do remain significant. First, they may be applied to new cases before the Court, subject to the provisions of article 59.62 Second, the Court may look to international custom as evidence of a general practice accepted in international law. The origin of a customary rule may be a previous decision of the Court. The law of the sea was the subject of the first completed attempt by the International Law Commission to place a large segment of international law on a multi-lateral treaty basis. Four Conventions resulting from their work were produced at the Geneva Conference on the Law of the Sea of 1958. All four have entered into force and have been ratified by a large number of states. The Territorial Sea Convention63 entered into force on September 10, 1964: there are forty-six contracting parties. Canada signed but has not ratified this Convention. It is not clear whether this failure to ratify the TerritorialSea Convention was a result of lethargy or of a conscious disapproval of some of the Convention's provisions. In any case, Canada would like to base the defence of its Arctic baseline system solely on the Anglo-Norwegian Fisheries Case64 so as not to be bound by article 5(2) of the 1958 Convention (Territorial Sea Convention) which provides that: "Where the establishment of a straight baseline in accordance with Article 4 has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas, a right of innocent passage, as provided in Articles 14 to 23, shall exist in those waters." Canada and 129 States have signed the Law of the Sea Convention, which requires sixty ratifications or accessions to enter into force. 65 Only twenty-six countries had ratified as of April 30, 1986. Canada has not done so, although the government has commenced an interdepartmental examination of the legislative requirements in the event that Canada does decide to ratify the Convention. The signing of the 1982 Convention (Law of the Sea Convention) denotes a certain degree of approval of its articles, including article 8(2) which repeats almost verbatim the qualification contained in article 5(2) of the TerritorialSea Convention. Canada was an active participant at U.N.C.L.O.S. III, therefore, its signing of the resulting Convention would seem to suggest that its failure to ratify the TerritorialSea Con- vention was more a result of languor than of its disapproval of article 5(2).

61 Statute of the InternationalCourt of Justice, supra, note 8, art. 59. 62 Statute of the InternationalCourt of Justice, supra, note 8, art. 38(1)(d). 63 Supra, note 1. The other three conventions produced at the 1958 Geneva Conference are: Convention on the High Seas, 29 April 1958, U.N. Doe. A/Conf. 13/ L. 53,450 U.N.T.S. 82; Convention on Fishingand Conservationofthe Living Resources of the High Seas, 29 April 1958, U.N. Doc. A/Conf. 13/L.54, 559 U.N.T.S. 285; Convention on the ContinentalShelf, 29 April 1958, U.N. Doc. A/Conf. 13/L. 55, 499 U.N.T.S. 311. 64 Supra, note 35. 65 Supra, note 22, art. 308. 1987] Canada's Claims to its Arctic Archipelago

Even allowing for those maritime states which voted against the Convention or abstained, as well as allowing for the North Sea Continental Shelf Cases,66 which have shown that it must not be assumed too readily that a treaty provision, even in a "law-making" treaty, states a rule of customary international law, "it seems likely that state practice will confirm or come to accept many of the particular Convention rules (whether those duplicating or building upon the 1958 Convention or those adding to them) as being binding as custom". 67 An international treaty is a source of obligation rather than a source of law. The principle of pacta sunt servanda asserts that only parties to a treaty are bound. However, by their manifest conduct (and therefore consent) non-parties may accept the provisions of a multilateral treaty as representing or codifying a rule of international law, so that a treaty can become an important source of evidence of existing international law. 68 A treaty may in certain circumstances eventually be regarded as evidence of generally accepted new rules of international law.69 Even an unratified treaty may be evidence of international customary law.70 At times, even the failure of a diplomatic conference to adopt a particular rule may, nevertheless, result in that rule subsequently evolving into an international customary rule. An example of this is the Fisheries Jurisdiction Case (Merits).71 The actual strength of individual customary rules is often an issue of contention. Oxman, in an article entitled Customary InternationalLaw in the Absence of Widespread Ratification of the U.N. Convention on the Law of the Sea, said, "[i]n the post-Convention world, whether or not a purported rule of customary law is the same as the rule in the Convention, its restraining impact will often be weaker than, or weakened by, the Convention rule. Only rarely will it ever be stronger."72

A. Article 7 The main changes brought about by the 1982 Convention were as follows: provision for transit passage through international straits; increased rights for archipelagic and land-locked states; stricter control of marine pollution; further provisions for fisheries conservation; acceptance of a 200-mile exclusive economic zone for coastal states; changes in the

66 (W.Ger. v. Den.; W. Ger. v. Neth.) (1969), [1969] I.C.J. 3 [hereinafter North Sea ContinentalShelf Cases]. 67 See D.J. Harris, CASES AND MATERIALS ON INTERNATIONAL LAW, 3rd ed. (London: Sweet and Maxwell, 1983) at 286 [hereinafter Harris]. 63 See, e.g., North Sea ContinentalShelf Cases, supra, note 66 at 25-6. 69 See, e.g., ibid. at 41. 70 See, e.g., Tunisia/Libya ContinentalShelf Case (1982), [1982] I.C.J. 18 at 47- 8. 71 (U.K. v. Ice.) (1974), [1974] I.C.J. 3 at 24-6. 72 B. Oxman, Customary InternationalLaw in the Absence of Widespread Rati- fication of the U.N. Convention on the Law of the Sea in A. Koers & B. Oxman, eds., THE 1982 CONVENTION ON THE LAW OF THE SEA (Honolulu: The Law of the Sea Institute, 1983) at 673. Ottawa Law ReviewlRevue de droit d'Ottawa [Vol. 19:1 continental shelf regime; and provision for deep sea-bed mineral resources.73 Article 7 of the Law of the Sea Convention is the most recent statement of the law by which straight baselines may be drawn along sections of coast which possess specified features or characteristics that render inappropriate the usual method of employing, in combination, the low-water line, which forms the normal baseline (article 5) and individual closing lines for bays and river mouths (articles 9 and 10). The article is almost identical to article 4 of the TerritorialSea Convention.74 Paragraph 1 of article 7 was incorporated without change from article 4 of the 1958 Convention. Paragraphs 3, 5 and 6 were transferred from article 4 with only slight changes in expression, which do not alter their meaning or operation. Paragraph 4 was slightly modified for the 1982 Convention making it easier for low-tide elevations to be used as basepoints. 75 Paragraph 2 of the 1982 Convention dealing with basepoints on unstable coastlines is entirely new. The use of straight baselines by a state other than an archipelagic state will be valid in international law only if the dual geographical test, contained in paragraphs 1 and 3 of article 7, is satisfied. Article 7(1) describes the geography suitable for the method of straight baselines. It reads:

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, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.

Article 7(1) is restricted by article 7(3) which provides that:

The 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 closely linked to the land domain to be subject to the regime of internal waters.

Once it has been determined that the geography of the region comes within the ambit of article 7(1), then economic interests peculiar to the locality may be considered when drawing individual lines. Certain devia- tions from a strict application of article 7(3) may be permitted under article 7(5) which reads:

73 See Harris, supra, note 67 at 285. 74 Supra, note 1. 75 A second situation where low-tide elevations may be used as basepoints has been added in the 1982 Convention. The article reads: Straight baselines 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 circumstances where the drawing of baselines to and from such elevations has received general international recognition. Law of the Sea Convention, supra, note 22, art. 7(4) (emphasis added). 19871 Canada's Claims to its Arctic Archipelago

Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.

It is important to stress that article 7(5) becomes relevant only when the geographical criteria have been satisfied. Article 14 of the 1982 Convention states that a combination of methods may be used for determining baselines:

The coastal State may determine baselines in turn by any of the methods provided for in the foregoing articles to suit different conditions.

This article authorizes the use in combination of the following: the low- water line, which forms the normal baseline; 76 straight baselines; 77 and straight closing lines for mouths of rivers78 and bays. 79 Whichever method is employed by a state for the delimitation of its territorial sea, sea areas lying within the baselines are subject to the regime of internal waters. Article 8 of the 1982 Convention says that: Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. 1. Article 7(1)

This fundamental geographical criterion contains two parts.

(a) Localities Where the Coastline is Deeply Indented and Cut Into

The method of straight baselines may be employed in localities where the coastline is "deeply indented and cut into". This phrase, which has survived intact from the 1951 judgment of the International Court of Justice,80 presents some difficulty because of the imprecision of the wording. There is no reliable objective test, agreeable to all, to determine whether a coast is deeply indented and cut into or simply indented and cut into.81 Much of the island coastline of the Arctic archipelago is deeply indented and cut into. The coastlines of Banks Island and Ellesmere Island are excellent examples of deeply indented coastlines for which straight baselines have become internationally accepted. The eastern coasts of the mountainous Ellesmere and Baffin Islands, with their deep inlets and fjords, are geographically very similar to the east coast of Finnmark.

76 Law of the Sea Convention, supra, note 22, art. 5. 77 Law of the Sea Convention, supra, note 22, art. 7. 71 Law of the Sea Convention, supra, note 22, art. 9. 79 Law of the Sea Convention, supra, note 22, art. 10. 8o See Anglo-Nonvegian Fisheries Case, supra, note 35 at 128-9. 81 See Prescott, supra, note 49 at 4-8, where he discusses the word "localities" and the meaning of the phrase "deeply indented and cut into". Ottawa Law Review/Revue de droit d'Ottawa [Vol. 19:1

Indeed, in his dissenting opinion in the Anglo-Norwegian FisheriesCase, 82 Judge Read specifically mentioned Canada as having coastlines that are comparable to the northern coast of Norway. He said:

It is unrealistic to suggest that the northern coast of Norway is unique or exceptional in that it has a broken coast line in East Finnmark, or because West Finnmark, Troms, and Nordland are bordered by a coastal archipelago, deeply indented by fjords and sunds. . . .There are coastal archipelagos, deeply indented bays and broken coast lines on the north, south, east and west coasts of Canada, in the panhandle of Alaska, in South America, and doubt- less, in other parts of the world. 83

Straight baselines may be employed in localities of the Canadian Arctic where the coastline is deeply indented and cut into, whether those characteristics are to be found on island or continental coastline. Canada may use straight baselines along the coastlines of many of its northern islands. The fulfilling of this first part of article 7(1), however, cannot be used as the sole legal basis for drawing lines that connect the islands and for encircling the entire Arctic archipelago and attaching it to Canada's northern coastline. Nonetheless, the notched coast could arguably be used to support a claim under article 7 of the 1982 Convention. In addition, it is an auxiliary factor that could be proffered in an argument by analogy, drawing on both article 7 and 47, to support a special status for Canada as a result of its large coastal archipelago. Canada could exploit the inherent ambiguity of the word "coastline" in article 7 which can be taken to mean the coastline of the islands themselves. With the sea to land ratio of the archipelago being 0.822 to 1, and with much of the sea area being frozen for most of the year, it does not stretch the imagination too far to consider the sea-ward coastline of the archipelago as being the relevant coastline for this test. This ambiguity is brought out in the Anglo-Norwegian Fisheries Case. In its description of the skjaergaard, the International Court of Justice specifically referred to the serrulated nature of the islands: "Within the 'skjaergaard', almost every island has its large and its small bays; countless arms of the sea, straits, channels and mere waterways serve as a means of communication for the local population which inhabits the islands as it does the mainland." 84 The coasts of the Arctic islands are very similar. There are many examples where Canadian straight baselines enclose what are really insular bays. 85

82 Supra, note 35 at 193. 83 Ibid.

94 Ibid. at 127. 85 See the examples discussed in section IV.A.1 of the text, infra. 19871 Canada'sClaims to its Arctic Archipelago

(b) A Fringe of Islands Along the Coast For the straight-baseline method to be applicable under the rule in article 7, the Canadian Arctic archipelago must be held to constitute "a fringe of islands along the coast in its immediate vicinity". In the Anglo-Norwegian Fisheries Case, the International Court of Justice expressed this compulsory criterion in looser terms, as an archipelago along the coast, exemplified by the Norwegian skjaergaard:

Where a coast is deeply indented and cut into, as is that of Eastern Finnmark, or where it is bordered by an archipelagosuch 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 a geometric construction.86

To the International Law Commission this simply meant islands near the coast:

Where circumstances necessitate a special regime because the coast is deeply indented or cut into or because there are islands in its immediate vicinity, the baseline may be independent of the low-water mark.8 7

The introduction of the word "fringe" in the TerritorialSea Convention8s made the test somewhat more stringent than that articulated in either the decision of the International Court of Justice or the Report of the InternationalLawCommission. Alternatively, it underlined the fact that the Court's geographical criteria used the Norwegian skjaergaard as a yardstick against which all other localities were to be measured. The baselines claimed by Norway and the configuration of the Norwegian coast are models from which may be derived an interpretation of the legal basis of straight baselines. Prescott commented on the word "fringe", saying:

The concept of fringing islands which justifies straight baselines is not difficult to apply if the standard against which claims are measured in Norway's skjaergaard,which so impressed the International Court of Justice in 1951. Unfortunately that standard has not been applied with any consistency and there is evidently a strong temptation, to which many countries have yielded, to use any offshore islands to justify straight baselines. 89

The concept of a "fringe" of islands presents some difficulty as the central part of a legal test. Beazley pointed out, with reference to article 4 of the 1958 Convention, that it is a subjective criterion that can only lead to uncertainty.90

86 Supra, note 35 at 128-9 (emphasis added). 87 Supra, note 57 at 4 and 13-4. 88 Supra, note 1, art. 4. 89 Prescott, supra, note 49 at 13. 90 See RB. Beazley, TerritorialSea Baselines (1971) 48 INTERNATIONAL HYDRO- GRAPHiC REv. 140 at 142. Ottawa Law ReviewlRevue de droit d'Ottawa [Vol. 19:1

Nevertheless, certain assumptions can be made about what constitutes a fringe of islands. Defined in the Oxford Dictionary as a "border or edging", the word fringe implies both proximity and density (or number) of islands. Prescott said, "there must be more than one island in the fringe. It could reasonably be argued that since the purpose of straight baselines is to avoid complex patterns of maritime jurisdiction that the minimum number of islands which constitutes a fringe must be greatly in excess of two." 91 Beazley highlighted the requirement of both proximity and density in the following passage: " 'Fringe of islands' must mean a number of islands although the exact number will depend partially on size; three large islands might constitute a fringe where three islets over the same area would not." 92 In addition to the cohesiveness of the archipelago itself, the proximity of the archipelago to the coast is an additional prerequisite. Beazley has attempted to inject some certainty into the concept of a fringe of islands by reference to the possible overlap of the 12-mile territorial sea. He has suggested that, "where the territorial waters measured from the low-water line around individual islands spaced along the coast do not overlap, those islands are unlikely to constitute a fringe. But the converse is not necessarily true. . . . [M]uch must depend on the nature of the islands." 93 He has gone so far as to posit an alternative test, based on territorial-sea overlap, which he said would reflect the notion of "sea areas . . . subject to the regime of internal waters" which is included in article 4(2) of the 1958 Convention. He recommended that "a straight baseline could not be drawn from the mainland to an island, or from one island to another, unless they were enclosed within the same continuous overlapping belt of territorial sea". 94 This approach is appealing for two reasons. First, it would make the geographical test objective and more certain. Second, it shows the desir- ability of considering the rights of passage at an early stage. The formalistic geographical test of article 4 of the TerritorialSea Convention ignores the important issue of transit until it has declared the baseline system to be either valid or invalid. Beazley's proposed criterion is, however, arbitrary and unnecessarily constrictive. There is no requirement in the article to perform an analysis of the territorial sea of this type. Furthermore, article 5(2) specifically provides for the right of innocent passage in water areas where that right existed previously. It thus incorporates the issue of the rights of passage, albeit at a later stage. The group of islands making up the Norwegian skjaergaard is per- fectly described by the word "fringe" in both its connotative and its

91 Prescott, supra, note 49 at 9. 92 P.B. Beazley, Maritime Limits and Baselines: A Guide to their Delineation, Special Publication No. 2 (London: Hydrographic Society, 1978) at 8 [hereinafter Bea- zley]. 93 Ibid. at 9.

94 See supra, note 90 at 148. 1987] Canada'sClaims to its Arctic Archipelago denotative (border or edging) meanings. Any clear dividing line between the mainland and the sea is obliterated.

The coast of the mainland, which, without taking any account of fjords, bays and minor indentations is over 1,500 kilometers in length, is of a very distinctive configuration. Very broken along its whole length, it constantly opens out into indentations often penetrating for great distance inland: The Porsangerfjord, for instance, penetrates 75 miles inland. To the west, the land configuration stretches out into the sea: the large and small islands, mountainous in character, the islets, rocks and reefs, some always above water, others emerging only at low tide, are in truth but an extension of the Norwegian mainland. The number of insular formations, large and small, which make up the "skjaergaard", is estimated by the Norwegian Government to be one hundred and twenty thousand. 95

The Canadian Arctic archipelago has seventy-three major islands of more than fifty square miles in area and 18,114 smaller ones. The large islands are dispersed along the northern coast of Canada with smaller islands, islets, rocks and reefs. Like the Norwegian skjaergaard, some are always above waters, others emerge only at low tide. Virtually all of the land formations are mountainous. The islands are in many places very close to the northern shore, and can reasonably be viewed as being "but an extension" of the Canadian mainland. Indeed, the coastline in many places extends right into the mass of islands with peninsulas which appear more as islands connected by way of isthmus to the mainland.96 A particularly striking example is the Boothia Peninsula which almost touches Somerset Island. In contrast, some islands of the Norwegian skjaergaard are more than sixty miles from the nearest peninsula on the mainland.97 Because of its sheer size, and due to its division into a northern and southern group, it is disputable whether or not the Canadian Arctic archipelago is a fringe of islands along the coast in its immediate vicinity. The base of the triangular-shaped island group stretches some 3,000 kilometres along the mainland coast. Its apex, the icy tip of Ellesmere Island, is less than 900 kilometres from the geographical North Pole. All of the archipelago lies north of the Arctic circle, except for the southern tip of Baffin Island.98 The archipelago is divided into two major sections by the Parry Channel (constituted by McClure Strait, Viscount Melville Sound, Bar- row Strait and Lancaster Sound). To the north of this waterway is the large group of islands known as the Queen Elizabeth Islands, covering an area of over 167,769 square miles. 99 To the south, excluding the islands

95 Anglo-Norvegian Fisheries Case, supra, note 35 at 127 (emphasis added). 96 For example: Kent Peninsula, Adelaide Peninsula, Simpson Peninsula and Melville Peninsula. 97 See D. Pharand, The Legal Regime of the Arctic: Some Outstanding Issues (1984) 39 INT'L JOURNAL 742 at 771. 98 Ibid. at 778-9. 99 CANADA YEARBOOK (Ottawa: Statistics Canada, 1985) at 26. Ottawa Law ReviewlRevue de droit d'Ottawa [Vol. 19:1 of Hudson Bay and the Hudson Strait, the island group covers an area of 331,786 square miles.100 The Parry Channel, which clearly does divide the archipelago into two distinct island groups (one of which Her Majesty has lent her name to), is a major impediment to labelling the island group "fringe". This is because the Parry Channel disrupts the cohesiveness or coherence of the Canadian north. If it were decided that this division between north and south were sufficient to exclude the archipelago from the article 7 provisions for island fringes, it would still be open to Canada to enclose the bottom half only. However, there is a convincing argument for rejecting this as an unnatural and unwarranted solution to a controversial issue. Despite the existence of the Parry Channel, the Arctic archipelago, when viewed on a large-scale chart, does appear to form a coherent, triangular, frozen unity. Although there is a clear division into two sections, there is a coherence or harmony between the two parts which does create a certain oneness or unity. As has been stated: "These islands are joined, and not divided by the waters between them."' '10 The whole is greater than the sum of the parts. A fringe is created by islands fringing other islands which in turn fringe the coast. Pharand writes: "In spite of the considerable width of the Parry Channel, however, a global view shows that it does not unduly disrupt the general unity of the archipelago." 102 Pharand has also convincingly undermined the importance of the Parry Channel by pointing to the islands of the narrow Barrow Strait. Furthermore, nearly all the bodies of water in the archipelago are studded with countless islands, rocks and reefs. The general cohesiveness of the archipelago is enforced by the presence of ice for most of the year. As well, the sea to land ratio in the Canadian Arctic is 0.822 to 1, much better than the ratio in the Anglo-Nonvegian Fisheries Case of 3.5 to 1. Finally, geographically and geologically, the unity between the two island groups is clearly apparent: for example, note the mountain range that extends from the northern tip of Ellesmere Island to the southern tip of Baffin Island. The coastlines of these mountainous islands exhibit the same scores of bays and fjords. "The archipelago might not constitute a 'fringe of islands along the coast' if the conventions are interpreted literally", wrote Pharand.10 3 However, a legalistic and formalistic application of the subjective rule of article 7(1) would be unnecessary and inappropriate. The Arctic archipelago could be construed as a fringe, liberally defined, thus allowing for a further application of the Anglo-Norwegian Fisheries Case'04 and the consideration of special facts.

1oo Ibid. 10,Canada, H.C. Debatesat 6461 (10 September 1985) (comments by Mr. Clark). 102 Supra, note 97 at 779. 103 Ibid. at 780. 104 Supra, note 35. 1987] Canada's Claims to its Arctic Archipelago

State practice has indicated that such a liberal interpretation has been given to the provision. Pharand points out: "This practice indicates that states have been either ignoring the precise wording of the provisions of the conventions or interpreting them as a mere codification of the criteria laid down in the Fisheries Case." 10 5 Subsequent state practice is relevant to the interpretation of Treaties. Article 31(1) of the Vienna Convention on the Law of Treaties0 6 states that: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Article 31(3)(b) augments this, providing that: "There shall be taken into account, together with the context any subsequent practice in the application of the treaty which establishes the agreement of the parties regardingits interpretation."107 One must be extremely careful in considering subsequent state practice in this area because the delimitation of the territorial sea is a unilateral act which affects the international community: the general interest must always be taken into account. It is extremely difficult to know when baselines have received general international acceptance. "If baselines such as those drawn by Ecuador, Iran and Vietnam receive general acceptance by the international community the wordfringe in Article 7 will become redundant." 108 The practice of these states is in no way indicative of agreement in the international community on the interpretation of article 7. Baseline systems that are in flagrant violation of article 7 do exist; however, this should not be taken to be a widening of the rule. If one looks at the new provisions for archipelago states of Part IV of the Law of the Sea Convention,109 for example, one sees strict mathematical formulae for the employment of archipelagic baselines. By analogy there must be a corresponding emphasis on the certainty of the law in the provisions of article 7. The delegates at U.N.C.L.O.S. III clearly felt that a mathematical formula was not necessary in the case of this established rule. Read as a whole, the 1982 Law of the Sea Convention does not suggest more freedom for states to delineate their coastal zones. On the contrary, the Convention shows a marked concern for the freedom of the seas. In INTERNATIONAL LAW OF THE SEA O'Connell lists some eighteen coastal archipelagos where straight baselines were used and which constitute very doubtful fringes of islands. 110 This does not, however, serve to validate the Canadian baseline system. The United States in particular has been

105 Supra, note 97 at 780. 106 Vienna Convention on the Law of Treaties, 23 May 1969, U.N. Doc. A/Conf. 39/27, 8 I.L.M. 679. 107 Ibid. (emphasis added). 103 Prescott, supra, note 49 at 13. 109 Supra, note 22. 110 D.P. O'Connell, INTERNATIONALLAw OFTHE SEA, Vol. 1, ed. by I.A. Shearer (Oxford: Clarendon Press, 1982) at 212. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 19:1 diligent in drawing attention to these infractions and, where necessary, has asserted its rights of navigation.II' Prescott writes:

In its present form Article 7 contains some imprecise terms which have permitted some countries to interpret the rules in a liberal manner which is a blatant breach of the spirit of the article. Straight baselines have been drawn along coasts which are neither deeply indented nor fringed with islands ...

The failure of the civilised nations of the international community to prevent this cheating when it first became apparent has contributed to some of the recent blatant breaches of the rules in Article 7. 112 By looking at the purpose of article 7, it is possible to determine whether the Canadian baseline system is in breach of the spirit of the article. The objective of the method of straight baselines is to create a viable alternative to the normal low-water line where special local conditions render the latter inappropriate. "This solution is dictated by geo- graphial realities."1 3 However, as the judgment of the International Court of Justice and the subsequent Conventions make clear, the interests of the coastal state must be weighed against those of the international community. Article 7(1) attempts to achieve a balance by providing that straight baselines may only be drawn around islands that form a fringe along the coast in its immediate vicinity. In any other circumstances, straight baselines that tie an island group to the mainland would enclose an inordinately large area of water (when looking at the ratio of sea to land) as internal waters. Article 7(3) also aims to preclude exorbitant claims to sea areas by describing the manner in which straight baselines must be drawn. B. Article 7(3)

This article contains two criteria; (1) straight baselines must not depart from the general direction of the coast and (2) sea areas must be sufficiently closely linked to the land domain.

1. StraightBaselines Must Not Departfrom the GeneralDirection of the Coast Article 7(3) provides that: "The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast."114 This rule was first articulated in the Anglo-Norwegian Fisheries Case. In its 1951 judgment, the International Court of Justice said:

I This is dramatically highlighted by its protest against Libya's "line of death". See C. Thomas, "Why Fleet Crossed the 'Line of Death' ", The [London] Times (26 March 1986) 5. 112 Prescott, supra, note 49 at 38. 113 Anglo-Norwegian Fisheries Case, supra, note 35 at 128. 114 Law of the Sea Convention, supra, note 22. 1987] Canada's Claims to its Arctic Archipelago

It is the land which confers upon the coastal State a right to the waters off its coasts. It follows that while such a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements, the drawing of base-lines must not depart to any appreciable 5 extent from the generaldirection of the coast. 1

This is a difficult criterion to apply in practice. What is clear, however, is that it is unsatisfactory to examine one sector of the coast alone, except in a case of manifest abuse, or to rely on the impression gained from large scale charts alone.11 6 In discussing the matter, the International Court of Justice observed that the concept was devoid of any mathematical precision and went on to state: "In order properly to apply the rule, regard must be had for the relation between the deviation complained of and what, according to the terms of the rule, must be regarded as the general direction of the coast."17 Judge Hsu Mo, in his separate opinion, said this:

The expression "to conform to the general direction of the coast", being one of Norway's own adoption and constituting one of the elements of a system established by herself, should not be given a too liberal interpretation, so liberal that the coast line is almost completely ignored. It cannot be interpreted to mean that Norway is at liberty to draw straight lines in any way she pleases provided they do not amount to a deliberate distortion of the general outline of the coast when viewed as a whole. It must be interpretedin the light of the local conditions in each sector with the aid of a relatively large scale chart. If the words "to conform to the general direction of the coast" have any meaning in law at all, they must mean that the base-lines, straight as they are, should follow the configuration of the coast as far as possible and should not unnecessarily and unreasonably traverse great expanses of water, taking no account of land or islands situated within them.)1 8

The Norwegian straight-baseline system is again the standard against which others should be measured. Hodgson and Alexander have carefully analyzed Norway's 1935 baselines. They found that only two or three lines varied more than 150 from a general direction as judged from small- scale charts. The maximum deviation was about 450 off Vestfjorden. 19 The straight baselines which encircle the Arctic archipelago do not follow literally the general direction of the northern coast of continental Canada. As the archipelago is triangularly-shaped, the baselines necessarily depart from the more straightforward west to east direction of the mainland coast. However, the following factors must be considered:

II Supra, note 35 at 133 (emphasis added). 116 See ibid. at 142; Beazley, supra, note 92 at 7. 117 Anglo-Norwegian FisheriesCase, supra, note 35 at 142 (emphasis added). 118 Ibid. at 154-5 (emphasis added). 119 R. Hodgson & L. Alexander, Towards an Objective Analysis of Special Cir- cuistances, (Law of the Sea Institute, University of Rhode Island, 1972) (Occasional Paper No. 13), cited in Beazley, supra, note 92 at 8. Ottawa Law ReviewlRevue de droit d'Ottawa [Vol. 19:1

(a) What is the general direction of the coast? The configuration of the coast, with its indentations and peninsulas, is such that a general direction cannot be discerned in any accurate or objective manner. (b) Which is the relevant coast? Again the inherent ambiguity of the word "coast" may entitle a coastal state to consider the sea-ward coast of the islands as the relevant coastline. This interpretation would be to Canada's advantage. There are dicta in the International Court's judgment that would indicate that it is possible to construe the word in this way. For example, the Court said: "The coast of the mainland does not constitute, as it does in practically all other countries, a clear dividing line between land and sea. What matters, what really constitutes the Norwe- gian coast line, is the outer line of the 'skjaergaard'."1 20 The uncertainty surrounding the importance of the island coastline was highlighted by the North Sea Continental Shelf Cases. 121 In these cases, brought by Denmark and the Netherlands against West Germany, the International Court of Justice was asked to consider the principles on which the North Sea continental shelf area in the vicinity of the three states should be delimited. The Court avoided any discussion of the possible effects that certain coastal islands could have on the delimitation of the continental shelf,122 although it did say that the presence of islets, rocks and minor coastal projections was to be ignored. 123

The import of this dictum appears to be that only small and insignificant insular formations which grossly distort a reasonable and notional mainland- based equidistance delimitation are to be considered "special circumstances" and so left out of account, especially as the Court failed to mention "islands" or insular formations specifically in formulating24 the factors to be taken into account in the particular demarcation. 1

The Franco-BritishArbitration Case on Western Approaches 25 and the Aegean Sea Continental Shelf Case126 demonstrate that the vague comments by the Court on islets, rocks and minor coastal projections are open to subjective interpretation. Furthermore, the difficulty in determining the relevant coastline and its general direction can be compared to an analogous problem in the North Sea Continental Shelf Cases. In the latter case, the problem was one of taking into account the following:

120 Anglo-Norwegian FisheriesCase, supra, note 35 at 127. 121 See supra, note 66. 122 See Symmons, supra, note 12 at 170.

123 North Sea ContinentalShelf Cases, supra, note 66 at 36. 124 Symmons, supra, note 12 at 171 (emphasis added). 125 Delimitation of the Continental Shelf (U.K. v. Fr.) (1977), 54 International Law Reports 6, C.M.N.D. 7438 (1979), reprinted in 18 I.L.M. 397 (1979) [hereinafter Franco-BritishArbitration Case]. 126 (Greece v. Turk.) (1976), [1976] I.C.J. 4 (Interim Protection Order of Septem- ber 11) [hereinafter Aegean Sea ContinentalShelf Case]. 1987] Canada'sClaims to its Arctic Archipelago

the element of a reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines, - these being measured according to their general direction in order to establish the necessary balance between States with straight, and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions. 27

The appropriate technical method for achieving this proportionality,other than being a "matter for the parties",12s is not made clear in the Court's judgment.

2. Sea Areas Must be Sufficiently Closely Linked to the Land Domain

The second criterion of article 7(3) is that the "sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of the internal waters". This provision echoes the words used by the International Court of Justice in describing "the real question raised in the choice of base-lines". 129 It also shows the emphasis placed by the Court on the close relationship that must exist between the sea areas and the land formations which divide or surround them. This criterion, like other terms that connote a notion of proximity, is rather vague and uncertain. In the North Sea ContinentalShelf Cases, the Court listed several other similar expressions and concluded that they were all "terms of a somewhat imprecise character which, although they convey a reasonably clear general idea, are capable of a considerable fluidity of meaning".130 Read as a whole, article 7(3), like article 7(1), is best interpreted as having been designed to preclude unjustified claims to excessively large sea areas. It follows that the legality of Canada's baseline system should depend neither on an arbitrary test such as the general direction of the mainland coast, which in any event is almost impossible to determine, nor on a test of the existence of a close link with land, which is too vague to measure. The purpose of the article, however, is clear: to make illegal the drawing of lines of the large angles off the coast to islands a great distance away, thus making extravagant ocean claims. It is submitted that the most appropriate test for article 7(3) is the ratio of sea to land. This is a test explicitly chosen by consensus at U.N.C.L.O.S. III for the provisions of the Law of the Sea Convention concerning archipelagic states. Article 47 states that an archipelagic state may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided, inter alia, that the ratio of the area of water to the area of land, including atolls, is between 1 to 1 and 9 to 1.

127 Supra, note 66 at 52 (emphasis added). 128 Ibid. 129 See Anglo-Norwegian Fisheries Case, supra, note 35 at 133. 130 Supra, note 66 at 30. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 19:1

Despite the fact that the Canadian straight baselines do not techni- cally follow the general direction of the mainland coast, the Arctic islands are sufficiently closely linked to the land domain (as shown by the sea to land ratio of 0.822 to 1) to be subject to the regime of internal waters. The Arctic baseline system therefore satisfies the requirements of article 7(3). It is useful to consider academic opinion directed toward methods of delimiting the Canadian Arctic. In 1958, Professor Maxwell Cohen, then of McGill University, stated that the waters of the archipelago ought to be considered as "Ca- nadian waters". He said:

With respect to the various straits and bodies of water between the many islands of the Archipelago where American naval vessels traverse today, these must be treated as "Canadian waters" in the same sense that the International Court of Justice viewed the waters of the great Norwegian Archipelago as 3 Norwegian "inland waters".' 1

In 1970, Professor Cohen doubted that it would be acceptable on the international plane for Canada to draw straight baselines around its Arctic archipelago and thus close off the Northwest Passage.

It is clear that Canada might have opted for the high-risk total archipelago theory of jurisdiction as outlined in the NorwegianFisheries case. This might have solved the problem of internal waters of the archipelago but it is not certain that Canada could have closed the Northwest Passage by the simple assertion of it as "internal waters". And because of the size of the archipelago and its division into a main northern group, north of the Passage, and a southern group, there might have been great difficulty in getting international acceptance of a pure archipelago claim as the basis of jurisdiction. 32

Pharand, who has long been an advocate of straight baselines for the Arctic archipelago, said:

Although the archipelago is not a simple "fringe of islands" in a strict sense, it constitutes a single unit bordering the northern coast of Canada and forming an integral part of the coast. The physical characteristics of the coast and of the archipelago are such as to make it absolutely impossible to follow the sinuosities of the coast or of the islands in the measurement of the territorial sea, and render it necessary to use straight baselines.' 33

Although Pharand's conclusions are tenable, perhaps they appear slightly overstated if the Arctic archipelago is compared to the estimated 120,000 islands of skjaergaard fringing the northern Norwegian coast serrated with countless fjords. But the Canadian north is itself a complex

131 M. Cohen, "Polar Ice and Arctic Sovereignty" (1958) 73 SaturdayNight (No. 18) 12 at 34. 132 M. Cohen, The Arctic and the National Interest (1970) 26 INT'L JouRNAL 52 at 80. 133 D. Pharand, Sovereignty and the CanadianNorth in M. Whittington, ed., THE NORTH (Toronto: University of Toronto Press, 1985) at 152. 1987] Canada's Claims to its Arctic Archipelago

arrangement of over 18,000 islands, several of which have fjords. Al- though the issue is subjective and uncertain, it would be extremely difficult to follow the sinuosities of the coast or of the islands in the measurement of the territorial sea. Another academic, Reinhard, placed more emphasis on the economic interests of the region than is warranted by the judgment of the International Court of Justice. In doing so, he concluded that Canada could not encircle the archipelago with straight baselines under the criteria laid down in the Anglo-Norwegian Fisheries Case because it could not meet the test of economic interest evidenced by long usage. He did believe, however, that the geographic considerations were satisfied and therefore such baselines would be valid under the TerritorialSea Convention. He said:

It is apparent that the Geneva Convention has attached more importance to the geographic configuration of the coastal state in question than to evidence of long economic usage. Therefore, since Canada qualifies on the other factors . . . straight baselines may be drawn around the North American Archipelago and the waters of the Northwest Passage may be called the internal waters of Canada. 134 C. A Claim by Analogy to Archipelagic Baselines As suggested above, the principle of the Anglo-Norwegian Fisheries Case 35 is applicable only to coastal archipelagos of a rather narrowly- defined type. By requiring the island group to fringe or border the coast, the rule is conceptually too rigid to take account of the diversity of situations and the complexity of interests that exist internationally. For example, in 1971 O'Connell warned that the problem of mid-ocean archipelagos would require more than the cursory attention that it had hitherto received. Archipelagic claims, he stated, were "likely to be made by almost all the newly independent nations which consist[ed] of island groups".136 Such archipelagos did receive attention at U.N.C.L.O.S. III. The approach taken there was to seek to integrate the archipelagic principle in existing international law in such a way as to accommodate the interests of the archipelagicstate without disproportionately affecting the global interests of the international community. This aim was achieved in Part IV (articles 46-54) of the resulting 1982 Convention.137 Article 46 defines the term "archipelagic state", for the purpose of the 1982 Convention, as

134 W.G. Reinhard, InternationalLaw: Implicationsof the Opening of the North- west Passage (1970) 74 DICKINSoN L. REv. 678 at 688-9, cited in Pharand, supra, note 33 at 91. 135 Supra, note 35. 136 D.P. O'Connell, Mid-Ocean Archipelagos in InternationalLaw (1971) 45 BRr. Y.B. INT'L L. 1 at 1. 137 Law of the Sea Convention, supra, note 22. Ottawa Law ReviewlRevue de droit d'Ottawa [Vol. 19:1

a State constituted wholly by one or more archipelagos and may include other islands; "Archipelago" means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely inter- related that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.

The Canadian Arctic archipelago does fit into this definition. The problem of its division into a northern and southern group, which creates some difficulty with the article 7 test of a "fringe" of islands along the coast, is overcome by this definition which seeks to encompass a wider range of elements. In particular, the article 46 concept looks not only at the land formations but also at the interconnecting waters as an intrinsic part of the groups of islands. Although the Arctic islands appear to satisfy the criteria of the meaning of the term archipelago, Canada does not fit within the definition of "Archipelagic State" as it is not a country constituted wholly by one or more groups of islands. However, article 47 on archipelagic baselines is important should Canada wish to argue by analogy for special status as a coastal archipelagic state, 138 despite not being wholly constituted by groups of islands. Article 47 authorizes archipelagic states to "draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago". Objective mathematical criteria as regards the ratio of water to land and the maximum length of baselines are included. The Canadian archipelago satisfies these requirements. 139 Whereas waters on the landward side of straight baselines of the territorial sea drawn in accordance with article 7 are subject to the regime of internal waters, those enclosed by archipelagic baselines drawn in accordance with article 47 are described as "archipelagic waters". The sovereignty of an archipelagic state extends to these archipelagic waters regardless of their depth or distance from the coast. 140 This sovereignty extends to the air space over the archipelagic waters, as well as to their seabed and subsoil and the resources contained therein.14' These archipelagic waters are similar in character to the internal waters created by a delimitation of the territorial-sea baseline in accordance with article 4 of the TerritorialSea Convention of 1958, but the right of innocent passage, pursuant to article 5(2), applies. As subject to article 53, Right of archipelagic sea lanes passage, and without prejudice to article 50, Delimi- tation of internal waters, ships of all states enjoy the right of innocent passage through archipelagic waters. Within its archipelagic waters, the archipelagic state may draw closing lines for the delimitation of internal waters in accordance with

138 Archipelagic state, as used here, is not intended as a term of art. 139 See section IV of text, infra. 140 Law of the Sea Convention, supra, note 22, art. 49(1). 141 Ibid., art. 49(2). 1987] Canada's Claims to its Arctic Archipelago articles 9, 10 and 11.142 Archipelagic states are nowhere authorized to use article 7. It would appear that a country drawing archipelagic baselines cannot also use the method of straight baselines. Article 14, in specifically allowing for the use of a combination of methods for determining baselines, further emphasizes the mutually- exclusive nature of articles 7 and 47. A coastal state "may determine baselines in turn by any of the methods provided for in the foregoing articles to suit different conditions". The word "foregoing" excludes the use of article 47. A state cannot opt for a legal half-way house. Some states such as Fiji, Papua New Guinea, Seychelles, Solomon Islands and Tonga can only draw archipelagic lines around some of their islands because of the geographic rules of article 47. This is true even where all the component islands and other natural features form an intrinsic economic and political entity, and historically may have been regarded as such. Although this may seem somewhat harsh, the clear policy of Part IV, Archipelagic States, is to give these states more ability to create a coherent sovereign entity while maintaining, as far as possible, the freedom of the seas for navigation by all nations. The creation of internal waters (even those subject to article 5(2) of the TerritorialSea Convention, 1958) is kept to a minimum by not sanctioning, for archipelagic states, the use of internal-water-creating straight baselines. By analogy, archipelago theory could be relevant to the Canadian situation. In an area in which precedent may be of great importance, a number of states have enclosed independent archipelagos within straight baselines. The Faeroes were enclosed by the Danish Royal Decree of 24 April 1963 and, similarly, the Galapagos Islands were enclosed by the Ecuador Supreme Decree 958 of 28 June 1971. But in neither of these cases were the island groups tied to the mainland by straight lines. As articles 7 and 47 appear to be mutually-exclusive, it may be very difficult for Canada to tie the Arctic archipelago to the land domain. Supporting the Canadian claim is the fact that the deeply-indented coastlines, to which the archipelago is tied, themselves permit the method of straight baselines. 143 An analogous problem exists in the dispute between Greece and Turkey in the eastern Aegean Sea, where a satisfactory solution has yet to be reached. 144 Disputes of this kind about the delimitation of maritime boundaries occur with frequency; nevertheless, the development of a clear body of law to assist with such problems remains difficult. Many issues have arisen in the Greek-Turkish case concerning the maritime zones generated by the Greek Islands. In particular, Turkey has expressed its fears about the effects of an extension by Greece of the existing territorial sea around its Aegean islands from six to twelve miles.

142 Ibid., art. 50. 143 Indeed, the system in place in Newfoundland was drawn in 1967. W44On the Greek-Turkish dispute, see Symmons, supra, note 12 at 90-1, 137-8, 145-8, 155, 172-3; D.W. Bowett, THE LEGAL REGIME OF ISLANDS IN INTERNATIONAL LAW (Dobbs Ferry, N.Y: Oceana, 1979) at 249- 82. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 19:1

Such an extension could result in the "blocking [of] the port of Izmir and passage to the Mediterranean . . . [and] would effectively deny Turkey any continental shelf along its Anatolian coast". 145 It is clear that Greece could not contemplate drawing straight baselines connecting to the continental land mass islands that are at such a great distance from the mainland. The dispute shows the complexity of the issues that arise in a maritime boundary dispute. The situation in the Aegean is fundamentally different from that in the Arctic because in the latter case there is no state such as Turkey, with a wide range of interests to consider. However, both cases show the difficulty of resolving extremely complex situations with the legalistic, formalistic criteria of the Law of the Sea Convention. It would be desirable to consider the problem as a whole, 146 taking into account the full range of issues such as: (a) geographical features of the area; (b) economic interests peculiar to the region; (c) the social requirements of the people; (d) navigation; (e) the continental shelf; (f) the delimitation of maritime boundaries; and (g) sovereignty. Although there is no method in international law to consider all these issues simultaneously, the Canadian Arctic is clearly a region that requires such a treatment.

IV. THE CANADIAN BASELINE SYSTEM A. The Baselines Article 7 of the Law of the Sea Convention147 is the most recent articulation of the rule by which straight baselines may be substituted for the normal low-water line. In his analysis of this article, Prescott said that a liberal interpretation of the letter of the law was "a blatant breach of the 4 spirit of the article".' 8 Suggesting that there was a need for the international community to be more diligent and circumspect in its appraisal of baseline systems, he said:

Proper straight baselines have a number of segments each of which contains several legs, and the segments are interspersed with sections of the low-water mark of the coasts of the mainlands or islands. The length of individual [baselines] is short and thus the entire system conforms closely to the general direction of the coast. The baselines are rarely more than 24 nautical miles from the coast, they do not enclose a high proportion of water to land, and they do not extend the outer edge of the territorial sea far beyond the limit which would be established by measurements entirely from the low-water mark. 149

145 Symmons, ibid. at 91. 146 See, e.g., H. Burmester, The Torres Strait Treaty: Ocean Boundary Delimi- tation by Agreement (1982) 76 A.J.I.L. 321, on the signing in December 1978 by Australia and Papua New Guinea of the Treaty Between the Independent State of Papua New Guinea andAustraliaConcerning Sovereignty and MaritimeBoundaries in the Area Between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, 18 December 1978, reproduced in 18 I.L.M. 291 (1979). 147 Supra, note 22. 148 See supra, note 49 at 38. 149 Ibid. at 37-8. 19871 Canada's Claims to its Arctic Archipelago

The baseline system drawn around the Canadian Arctic archipelago, with few exceptions, conforms with Prescott's view of the straight-baseline rule. The Canadian baselines are in most places textbook examples of segments of straight baselines interspersed with sections of the normal baseline for measuring the breadth of the territorial sea. The twenty-seven segments, having an average length of forty-three sea miles, are rarely more than twenty-four nautical miles from the coast.1 50 They do not enclose a high proportion of water to land. The sea to land ratio is 0.822 to 1 (0.8 to 1 if the historic waters of Hudson Bay are excluded) and the majority of the sea surface is frozen for ten months per year. The baselines do not extend the outer edge of the territorial sea far beyond the limit which would be established by measurements entirely from the low-water mark. The issue of whether the drawing of the straight baselines in the Canadian Arctic departs to any appreciable extent from the general direction of the coast was discussed in Part 3. The only remaining potential problem could be the lengths of several of the lines. 1. The Length of IndividualStraight Baselines

In the Anglo-Norwegian FisheriesCase15' the International Court of Justice did not set a maximum length for straight baselines. In fact, the Court expressly rejected a 10-mile maximum length and upheld the Nor- wegian system of forty-seven baselines which varied from a few hundred yards to forty-four miles.152 The Court stated:

In this connection, the practice of States does not justify the formulation of any general rule of law. The attempts that have been made to subject groups of islands or coastal archipelagos to conditions analogous to the limitations concerning bays (distance between the islands not exceeding twice the breadth of the territorial waters, or ten or twelve sea miles), have not got beyond the stage of proposals.153

The International Court of Justice said that it is the coastal state that is "in the best position to appraise the local conditions dictating the selection" of appropriate baselines. 154 The validity of the delimitation is then governed by international law. 155 It would appear that the setting of a maximum length as a criterion for determining the legality of straight baselines was seen as either unnecessary or redundant by the Court. Pharand understands this to mean, "if. . .straight baseline[s] could be

150Prescott appears to take the view that the relevant coast is the coast along which the baselines are drawn whether it be of the mainland or of the islands. This approach, it is suggested, is the most useful interpretation of a term that can be very ambiguous. See section III of the text, supra. 151 Supra, note 35. 152 Pharand, supra, note 33. 153 Anglo-Norvegian Fisheries Case, supra, note 35 at 131. 154 Ibid. 155 Ibid. at 132. Ottawa Law ReviewlRevue de droit d'Ottawa [Vol. 19:1 justified under the compulsory geographical criteria, and also perhaps under the optional criterion of an economic nature, such a line would be valid regardless of its length". 156 Pharand adds that "the straight baseline across the Lopphavet Basin . . .. as pointed out by Waldock, was in effect a 62-mile line".157 Neither article 4 of the TerritorialSea Convention nor article 7 of the Law of the Sea Convention sets a maximum length permissible for straight baselines. Both Conventions do, however, set a maximum length for bay-closing lines;158 and the Law of the Sea Convention sets a maximum length for archipelagic baselines. 159 Article 47(2) of the Law of the Sea Convention reads as follows: "The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles." This maximum length could be relevant were Canada to argue analogically that the Arctic archipelago constituted an archipelago within the article 46 definition which, as stated above, is a wider definition than a "fringe of islands", as it embraces islands, interconnecting waters and other natural features which form an intrinsic geographical, economic and political entity. Even though there is no maximum length for the article 7 straight baselines, length is nevertheless relevant for two reasons. First, some support the adoption of a maximum length. The mathematical formulae of the provisions for archipelagic states in the Law of the Sea Convention could be an indicator of a trend towards a more restrictive and certain approach. Second, the length of line may be relevant when applying the geographical criteria of article 7. For example, it is more difficult to argue that a very long line follows the general direction of the coast. In the Canadian context, four baselines lend themselves to a discussion of maximum length. First, the baseline across Amundsen Gulf is 91.9 sea miles in length. This basepoint connects basepoint 18, Obser- vation Point on Baillie Island, with basepoint 19, Cape Kellet on Banks Island. It is possible to reduce the length of this line to 68.8 sea miles by drawing a line from basepoint 18 along to Canoe Island and then to Cape Lambton on Banks Island; however, these lines would not conform as closely to the general direction of the coast. The baseline across Amundsen Gulf is extremely important as it purports to enclose as internal waters the western exit for all surface shipping in the Northwest Passage. This was the exit chosen by the Polar Sea.

156 Supra, note 33 at 78. 157Ibid.; C.H.M. Waldock, The Anglo-Norwegian FisheriesCase (1951) 28 BRIT. YB. INT'L L. 114 at 146. The point made by Waldock is that the 44-mile line runs to an isolated submerging rock, and then runs a further eighteen miles to another rock 3 1/2 miles away from the next base point. Ibid. at 78, n. 37. 158 TerritorialSea Convention, supra, note 1, art. 7; Law of the Sea Convention, supra, note 22, art. 10. 159Ibid., art. 47(2). 1987] Canada'sClaims to its Arctic Archipelago

Second, there is a 98.7-mile line across M'Clure Strait. This is the longest baseline in the system. Joining basepoint 30, Cape Prince Albert, with basepoint 31, Perseverance Point, this baseline may be objectionable because of its length and because of regime of passage concerns. This is the western exit of the Northwest Passage that is most appropriate for submarine transit. With the advent of submarine tankers appearing likely and with the mounting evidence that the superpower struggle for suprem- acy has spread to waters beneath the Arctic ice, the status of M'Clure Strait, like that of Amundsen Gulf, has taken on important economic and military implications. This second baseline is also significant because it joins the "two halves" of the archipelago. There are two possible alternatives to the 98.7-mile line. A 70.3-mile line could be drawn from Cape Wrottesley to Cape Mecham, or an 80.8-mile line could be drawn from Cape Wrot- tesley to Cape Manning. The third baseline lending itself to a discussion of maximum length is the baseline connecting basepoints 56 and 57. This baseline is 76.2 sea miles long. Peary Channel and Sverdrup Channel are enclosed by this line. Fourth, a 52.1-mile baseline lies across Lancaster Sound connecting basepoint 110, Cape Sherard, to basepoint 111, Cape Hay. The real issue with this baseline is not its length, but the regime of passage concern regarding the eastern entrance to the Northwest Passage. 160 Although a general rule for the maximum length of straight baselines does not exist, there is a clear 24-mile maximum for bay-closing lines. Article 10(2) of the Law of the Sea Convention describes what is meant by a bay. Article 10(4) contains the 24-mile rule. Article 10(6), however, explicitly rules out any length analogy with the "bay" provisions for the rules regarding straight baselines. It reads: "The foregoing provisions do not apply to so-called 'historic' bays, or in any case where the system of straight baselines provided for in Article 7 is applied." Article 10(6) serves to validate three straight baselines across bays that would otherwise fall foul of the 24-mile rule. They are: (a) Jones Sound (closed by two lines of 25.2 miles and 19.6 miles respectively), (b) Cumberland Sound (46.1 miles), and (c) Frobisher Bay (29.2 miles).

B. The Basepoints 1. Low-tide Elevations as Basepoints

A low-tide elevation is defined in article 13(1) of the Law of the Sea Convention as "a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide". 16' This section

160 In this context, it is also important to keep in mind that economic considerations are relevant to the drawing of particular baselines. The Inuit have made their homes and harvested the bounty of their economic well-being in both Lancaster Sound and Amund- sen Gulf for over 4,000 years. 161 Supra, note 22. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 19:1 repeats verbatim the words of article 11 of the TerritorialSea Conven- tion. 162 The Canadian baseline system uses low-tide elevations as basepoints in several places. For example, basepoint 16 is located on the submerging Crescent Bank located off the Tuktoyatuk Peninsula. The use of such basepoints has become a moot point for academic dispute. Article 7(4) of the Law of the Sea Convention states: "Straight baselines 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." Considering the origins of the rule 163 and taking into account the North Sea ContinentalShelf Cases 64 it is unlikely that the paragraph now reflects a rule of general customary international law. Article 47(4) is more generous than article 7(4). It provides that archipelagicbaselines may be drawn not only to low-tide elevations upon which lighthouses or similar installations which are permanently above sea level have been built, but also to a low-tide elevation situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island. As article 7(4) does not reflect customary international law, Canada is entitled to use low-tide elevations as basepoints. The reasonableness of the basepoints is enforced by the fact that they are not at a distance exceeding the breadth of the territorial sea and, hence, are within the provisions of article 47(4) for archipelagic baselines.

2. Ice as Basepoints

In the Canadian baseline system ice formations are used for determining the breadth of the territorial sea. Eight basepoints165 are located on the ice-shelves 66 of the northern coast of Ellesmere Island. Very little has been written about the validity of the use of ice for the determination of maritime zones. As Molde has recently stated:

162 See supra, note 1. 163 See generally G. Marston, Low-Tide Elevations and StraightBaselines (1972) 46 BRrr. Y.B. Irrr'L L. 405 at 405-19. 164 Supra, note 66 at 45. The International Court of Justice concluded "that if the Geneva 11982] Convention was not in its origins or inception declaratory of a mandatory rule of customary international law . . . neither has its subsequent effect been consti- tutive of such a rule; and that State practice up-to-date has equally been insufficient for the purpose". 165 Basepoints: 68, Alert Point; 69, Cape Bicknor; 70; 71, Cape Richards; 72; 73, the Ward Hunt Ice Shelf; 74, Cape Nares; 75, Cape Aldrich. 166 J. Molde, The Status ofIce inInternationalLaw(1982) 51 NORDISKTIDSSKRIFT FOR INTERNATIONAL PET. 164 [hereinafter Molde]. On page 165, Molde quotes from the W.M.O. Sea Ice Nomenclature, 1970, which defines an ice shelf as: A floating ice sheet of considerable thickness showing 2-50 m. or more above sea level, attached to the coast. Usually of great horizontal extent and with a level or gently undulating surface. Nourished by annual snow accumulation and often also by the seaward extension of land glaciers. Limited areas may be aground. The seaward edge is termed an ice front. 19S71 Canada's Claims to its Arctic Archipelago

[T]he status of ice in international law is fraught with considerable uncertain- ties. Primary source material offers practically no guidance on the subject. The Geneva conventions of 1958 do not mention the question of ice formations nor do other agreements offer any treatment of the question of ice formations in the arctic region. The new Convention on the Law of the Sea. . . contains no particular regulations for ice formations. Since also no case exists which pronounces on the question of the legal status of ice formations, writers on the subject have had to base their ideas on the - often sporadic - practice in this field and on analogiesand common sense.167 Similarly, Boyd has said: "In spite of the fact that modem technology has introduced new possibilities for the use of Arctic sea ice, states and jurists have devoted very little attention to its legal status." 168 The main question is whether or not international law is to regard ice as a distinct physical phenomenon, a sui generis form of territory subject to physical appropriation. Molde has observed that the literature of international law shows general acceptance of the view that ice formations contiguous with the land domain and ice-shelves consisting of sea ice as well as glacier ice can be used for the determination of maritime zones - as long as the ice is comparatively permanent and stable.169 "[A]ctual 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 reasonably stable." 170 The same commentator points out that the only area where ice formations are at present of real significance in the delimitation of the territorial sea is on the coast of Greenland, where part of the ice cap known as the "Flade Isblink" at certain points continues 7 into the sea, hiding the outer edge of the landmass.1 , He writes: "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. 'Flade Isblink' fully satisfies the demands for permanence and stability." 172 Where there is a relative degree of permanence and stability, common sense would suggest that ice-shelves should be used for determining the breadth of the territorial sea. In the first place, in many cases the outer edge of the landmass is practically unknown and impossible to chart with any degree of accuracy. Second, where ice is relatively permanent it has a strong physical resemblance to land and similarly acts as a barrier to navigation.173 Fitzmaurice uses the test of "susceptibility to use and

167 Ibid. at 164 (emphasis added). The sole exception is article 234 of the 1982 Convention, which gives the coastal state rights to control pollution in ice-covered areas within its Exclusive Economic Zone (E.E.Z.). 16s S.B. Boyd, The Legal Status of the Arctic Sea Ice: A Comparative Study and a Proposal(1984) 22 CAN. Y.B. INT'L L. 98 at 98 [hereinafter Boyd]. 169 Molde, supra, note 166 at 165. 170 Ibid. 171Ibid. at 166. 172 Ibid. (emphasis added). 173 Boyd, supra, note 168 at 137, n. 151. Ottawa Law Review/Revue de droit d'Ottawa [Vol. 19:1 occupation" to argue that ice-shelves should be subject to appropriation in a sovereignty claim. 174 Auburn also favours this approach and suggests that shelf-ice be regarded as a sui generis form of territory since it shares "most of the physical and utilitarian qualities of land and should be equated with it". 175 The main argument against using ice for basepoints is the practical problem of measuring the territorial waters from the edge of an ice-shelf that can exhibit extreme variations over time. This point emphasizes the necessity that the ice-shelf be relatively permanent and stable, but it does not create insurmountable problems. For example, Boyd has suggested one possible solution, namely, that "the seaward limit of an ice shelf at a given date could be used as a baseline, with amendments being made at periodic intervals based on a review of the calving trend of the particular 76 area of shelf ice over a period of years". 1 This solution is in keeping with the analogous situation of coastlines which are highly unstable because of the presence of a delta or other natural conditions. International law has developed to deal with these localities specifically, as it has developed to deal with highly irregular coasts generally. Article 7(2) of the Law of the Sea Convention reads:

Where because of the presence of a delta or 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.

It is submitted that the use of ice-shelves for basepoints is a solution - consistent with international law - to a problem posed by environmental conditions.

V. THE RIGHT OF PASSAGE

Before Canada formally established its Arctic claim on January 1, 1986 by encircling the Arctic archipelago with a system of both straight and normal baselines, the right of innocent passage, as provided in articles 14 to 23 of the TerritorialSea Convention 1958, must be presumed to have existed in areas of territorial sea (in addition to the freedom of navigation in areas of High Seas). As of January 1, 1986, Canada's action might be interpreted as having suspended temporarily this right of innocent passage, which would be internationally valid if such suspension were "essential for the protection of its security". 177

174 Sir G.G. Fitzmaurice, The GeneralPrinciples oflnternationalLaw Considered from the Standpoint of the Rule of Law (1957) 92 RECUEIL DES COURS 5 at 155, cited in Boyd, ibid. 175EM. Auburn, ANTARCTIC LAW AND POLITICS (London: C. Hurst, 1982) at 34- 5. 176 Boyd, supra, note 168 at 139. 177 See Territorial Sea Convention, supra, note 1, art. 16(3); Law of the Sea Convention, supra, note 22, art. 25(3). 19871 Canada'sClaims to its Arctic Archipelago

In addition, Canada has the right to enforce the provisions of its Arctic Waters Pollution Prevention Act, 178 which, if contrary to international law at the time of its enactment, has been validated by article 234 of the Law of the Sea Convention. Furthermore, Canada has powers for the general protection and preservation of the marine environment under Part XII of the 1982 Convention and for the specific protection of ice- covered areas under article 234. Finally, under article 73, any coastal state may take measures to enforce its laws and regulations as regards its sovereign rights over its Exclusive Economic Zone. The Canadian government has been reticent on the exact legal nature of its new Arctic claims and has exhibited a corresponding disinclination to speak freely about the right of passage in the waters of the archipelago. Canada has, however, referred to the waters as internal and has demanded advance notice of passage. 179 This would represent the most restrictive classification of the waters. If the baseline system proposed by Canada can be afforded justification in international law under the priniciples of the Anglo-Norwegian Fisheries Case,18o which were espoused by the later conventions as "a fringe of islands along the coast in its immediate vicinity",181 the waters enclosed would indeed be internal waters. Article 5(1) of the Territorial Sea Convention of 1958 provides that, "[w]aters on the landward side of the baseline of the territorial sea form part of the internal waters of the State". This provision is repeated in article 8(1) of the 1982 Convention with the proviso that it applies except as provided in Part IV, Archipelagic States. It should be noted that classification as internal waters would prob- ably not mean that the waters would be excluded from the "global highway for trade and commerce" as an "indispensable part of the highly inter- dependent global economy". 182 The waters would be open to international shipping with Canada acting as manager or caretaker. The Prime Minister stated in 1969 that "[t]o close off those waters and to deny passage to all foreign vessels in the name of Canadian sovereignty, as some commen- tators have suggested, would be as senseless as placing barriers across the entrances to Halifax and Vancouver harbours". 183 As well, in its note of 1970 to the United States, "[t]he Canadian Government reiterate[d] its determination to open up the Northwest Passage to safe navigation for the shipping of all nations subject, however, to the necessary conditions

178 R.S.C. 1970 (Ist Supp.), c. 2. 179 See supra, note 24 and accompanying text. On January 10, 1985 the Secretary of State for External Affairs stated: "These baselines define the outer limit of Canada's historic internal waters." Statement Series 85/49 at 3. 18oSupra, note 35. 181 TerritorialSea Convention, supra, note I, art. 4(1). 182 See J.N. Moore, The Regime of Straits and The Third United Nations Confer- ence on the Law of the Sea (1980) 74 A.J.I.L. 77 at 119 [hereinafter Moore]. 183 Canada, H.C. Debates at 39 (24 October 1969). Ottawa Law ReviewlRevue de droit d' Ottawa [Vol. 19:1 required to protect the delicate ecological balance of the Canadian Arc- tic". 184 Furthermore, article 5(2) of the TerritorialSea Convention, contains an important proviso to article 5(1), and is in keeping with the policy of balancing the interests of maritime states with the shared interest of the international community of freedom of the seas. Article 5(2) says:

Where the establishment of a straight baseline in accordance with Article 4 has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas, a right of innocent passage,as provided in Articles 14 to 23, shall exist in those waters. (emphasis added)

Article 5(2) does work in practice. As has been stated:

[a]pplying Article 4, the United Kingdom now uses straight baselines from Cape Wrath to the Mull of Kintyre on the west coast of Scotland. The result is to enclose as internal waters areas of water between the Outer Hebrides and the mainland which, when a low-water mark baseline was used, were high seas. Because of this result, the right of innocent passage in Article 5(2) applies. 185

Pharand has said that his advice to the Canadian government would be to rely solely on the Anglo-Norwegian FisheriesCase 186 so as to avoid the effect of article 5(2).187 This would involve a precarious, judicial juggling act. Although the provision for the maintenance of the right of innocent passage to counteract the expanding jurisdiction of coastal states does not form part of the judgment of the Anglo-Norwegian Fisheries Case, its inclusion in the TerritorialSea Convention, and in the Law of the Sea Convention, strongly indicates the establishment of a rule of customary international law. It would be difficult for Canada to ignore this rule in the light of its active participation at U.N.C.L.O.S. III and the signing (but not yet ratifying) of the 1982 Convention. Since the limit of the territorial sea is 12 nautical miles, there are many passages that do not exceed 24 nautical miles, and hence are comprised entirely of what could be territorial sea, if not internal waters. There are also many wider passages that would contain areas of territorial sea and of high seas. There is a strong case for subjecting these "areas which previously had been considered as part of the territorial sea or of the high seas" to the provisions of article 5(2); therefore, a right of innocent passage applies. "Such right", writes Pharand, "would exist in spite of the fact that those waters had not been used for international navigation." 188

184 Canada, H.C. Debates at 6028 (16 April 1970). 185 Harris, supra, note 67 at 298. 186 Supra, note 35. 187 See generally section II of text, supra. 188D. Pharand, The Northwest Passage in InternationalLaw (1979) 17 CAN. Y.B. INT 'LL. 99 at 125. 19871 Canada'sClaims to its Arctic Archipelago

The provisions on innocent passage are to be found in articles 14 to 23 of the Territorial Sea Convention, and in articles 17 to 32 of the Convention on the Law of the Sea. The formulation of the right has changed for the 1982 Convention. 189 The basic idea, however, is to allow for "navigation through the territorial sea for the purpose either of trav- ersing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters",190 as long as that navigation is "not prejudicial to the peace, good order or security of the coastal State". 191 If Canada seeks legal justification for its baseline system by analogy to the rights granted to archipelagicstates by the Law of the Sea Con- vention, then the right of passage in archipelagic waters is also relevant. "The sovereignty of an archipelagic state extends to the waters enclosed by the archipelagic baselines." 192 "This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein." 193 Article 52(1) of the Law of the Sea Convention says that the right of innocent passage exists through archipelagic waters. By reference to section 3, Innocent Passage in the TerritorialSea, this section makes it clear that this notion of innocent passage is the same as that used for the territorial sea. "Subject to Article 53 [the right of archipelagic sea lanes passage] and without prejudice to Article 50 [the delimitation of internal waters] ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3 [innocent passage in the territorial sea]." By article 52(2) an archipelagic state, in specified areas of the archipelagic waters, may temporarily suspend the innocent passage of foreign ships if such suspension is essential for the protection of its security. Transposed onto the waters of the archipelago, howsoever described, is a "straits regime" contained in Part III of the Law of the Sea Convention. Article 34 of this part makes it clear that the legal status of waters forming straits used for international navigation is not altered by the straits regime:

The regime of passage through straits used for international navigation established in this Part shall not in other respects affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil.

One of the aims at U.N.C.L.O.S. III was to devise a straits regime that "recognizes the community interest in transit through straits, and provides freedom of navigation through, over, and under straits used for international navigation while meeting legitimate safety and environmen-

189 See W.M. Reisman, The Regime of Straitsand NationalSecurity:An Appraisal of InternationalLawmaking (1980) 74 A.J.I.L. 48 at 60 [hereinafter Reisman]. 190 TerritorialSea Convention, supra, note 1, art. 14(2). 191Ibid., art. 14(4). 192 Law of the Sea Convention, supra, note 22, art. 49(1). 193Ibid., art. 49(2). Ottawa Law ReviewlRevue de droit d'Ottawa [Vol. 19:1 tal concerns of States". 194 The resulting provision has been both accepted and criticized. While reaffirming the importance of straits transit, Reis- man, for example, has challenged the adequacy of the negotiated straits regime for national security needs. 195 The Law of the Sea Convention establishes two categories of straits. The first, set out in article 37 and "illuminated and qualified" 196 in article 38, includes straits "used for international navigation between one area of the high seas or an exclusive economic zone and another area of the high seas or' 19an exclusive economic zone". For these straits the "neologistic" 7 right of transit passage avails. The second category, set out in article 45, includes two types of straits: a) those straits excluded from the application of the regime of transit passage under article 38(1); or b) those straits between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State. Although the right of transit passage applies to "article 37" straits, only the more restricted right of innocent passage prevails for "article 45" straits. In contrast to the rule in article 25(3) whereby the coastal state may suspend temporarily the right of innocent passage of foreign ships in specified areas of the territorial sea, article 45(2) provides: "There shall be no suspension of innocent passage through such straits." The crux of the issue is whether or not the Northwest Passage' 98 may be characterized as a strait used for international navigation. "If it may, the applicable freedom of passage under the new right of transitpassage would be virtually the same as that on the high seas. If it could not be classified as an international strait, the most that could apply would be the traditional right of innocent passage." 199 It is submitted that the Northwest Passage does not qualify as an international strait. It does not meet the test formulated by the International Court of Justice in the Corfu Channel Case, namely, that although the use of a strait for international navigation need not be extensive, it must have been a useful route for international maritime traffic before it could be considered an international strait.200 Pharand writes, "[a]pplying this test to the Northwest Passage it is evident that the criterion fails to be met, since in its 80-year history of exploratory navigation the Passage has

194 See Moore, supra, note 182 at 78. 19 See Reisman, supra, note 189 at 65. 196 Ibid. 197 Ibid. Reisman says: 'Transit passage' is a neologism; it lies somewhere between 'freedom of navigation' on the one hand, and 'innocent passage' on the other." Ibid. at 68. 198 See Pharand,supra, note 188 at 100 for a description of the Northwest Passage. 199D. Pharand, Sovereignty and the Canadian North in Royal Commission on the Economic Union and Development Prospects for Canada, Collected Research Studies, vol. 72, THE NORTH (Ottawa: Supply and Services Canada, 1985) at 153 (M.S. Whit- tington, Co-ordinator). 200 (U.K. v. Albania) (1949), [19491 I.C.J. 4. In the case of the Corfu Channel, the strait had been a useful route for the flags of seven States which had effected nearly 3,000 crossings over a 21-month period. 19871 Canada's Claims to its Arctic Archipelago seen only 40 complete transits and, of these, 27 were Canadian ships". 201 It is important to note that potential or future use is not within the criterion formulated by the International Court of Justice in the Corfu Channel case. VI. CONCLUSION

Article 7 of the Law of the Sea Convention is the most recent statement of the law by which straight baselines may be drawn along irregular sections of coast which possess specified features or characteristics that render inappropriate the use of the normal baseline of the low- water mark. Canada is authorized by article 7(1) of the 1982 Convention to employ the method of straight baselines along much of its Arctic-island coast in localities where that coastline is deeply indented and cut into. Because of the size and the division into two parts by the Parry Channel, it is controversial whether or not Canada is entitled to encircle the entire island group attaching it to the northern coast of Canada and claiming the waters of the archipelago as internal. This is because of the restrictive nature of the term "fringe" in article 7(1). However, if the Canadian north is compared to the Norwegian coastline, which was the subject of the Anglo-Nonvegian Fisheries Case20 2 and the standard against which the straight baseline method should be measured, one sees striking similarities that lead to the conclusion that the Canadian Arctic is an appropriate areafor the application of straightbaselines. Furthermore, if one looks by analogy to the definition of the word "archipelago" (which was the term chosen by the International Court of Justice to describe the Norwe- gian skjaergaard in 1951) in the provisions for archipelagic states in the 1982 Convention, one finds a definition that encompasses not only islands but also interconnecting waters and other natural features. The land, sea and ice of the Canadian island group do form a geographical, political and economic entity within the article 46 definition. This leads to the conclusion that the Canadian Arctic is a hybrid situation that cannot go unrecognized in international law. The reasonableness of an application of the straight baseline system to the area is strengthened by the fact that it satisfies the mathematical criteria of article 47. If the mainland coast is the relevant coastline, then the straight baselines do not follow the general direction of the coast as required by article 7(3). It would, however, make more sense to consider the coastline along which the straight baselines are being drawn as the relevant coast, whether it be island or mainland. Moreover, looking at the purpose of article 7(3), the sea to land ratio is an appropriate objective test. The Canadian archipelago, with a ratio of 0.822 to 1, does appear to satisfy

201 Pharand, supra, note 199 at 155. For a list of the recorded crossings of the Northwest Passage, see Pharand, supra, note 188 at 110-2. 202 Supra, note 35. Ottawa Law Review/Revue de droit d'Ottawa (Vol. 19:1 article 7(3) and is therefore an appropriate locality for the application of straight baselines. Twenty-seven segments of straight baseline have an average length of forty-three sea miles. The longest line is 98.7 sea miles. There is no legal objection to the lengths of the baselines either under article 7 or under article 47. However, in crossing the most important sea routes, these lines must surely raise regime of passage concerns. Both low-tide elevations and the edges of ice shelves are used as basepoints. The use of the former is forbidden by article 7(4) of the 1982 Convention unless lighthouses or similar installations which are permanently above sea level have been built upon them; their use is authorized by article 47(4) if the low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island, whether it has a lighthouse or not. With respect to the use of the edges of ice shelves as basepoints, international law, though reticent on the question of the legal status of ice, shows a general acceptance of the view that comparatively permanent and stable ice formations may be used for the determination of maritime zones. The waters of the archipelago are properly classified as internal waters203 if legal justification is found in article 7. Following from this, the right of innocent passage as provided by article 5(2)204 must almost certainly apply. In "archipelagic waters" the same right of innocent pas- Passage is not an international strait as it has sage applies. The Northwest 5 not been a useful route for international marine traffic. 20 The Canadian Arctic shows the difficulty of applying formal legalistic rules to a complex situation. The real issues are Canadian sovereignty, Canadian security (broadly defined) and freedom of the seas. Sadly, these issues are not involved in determining the validity of Canada's claims to the waters of its Arctic archipelago.

203 Law of the Sea Convention, supra, note 22, art. 8(1). 204 TerritorialSea Convention, supra, note 1. 205 See Corfu Channel Case, supra, note 200.