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

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Legality of Canada's Claims to the Waters of Its Arctic Archipelago 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 unpre- pared. 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 agree- ment 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 contro- versial 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 func- tional 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 sov- ereignty 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].
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