National Défense A-LG-007-SLA/AF-003 Defence nationale NAVAL OPERATIONS IN ARCTIC WATERS THE OPERATIONAL LEGAL CHALLENGES OF NAVAL OPERATIONS IN CANADA’S ARCTIC WATERS OFFICE OF THE JUDGE ADVOCATE GENERAL STRATEGIC LEGAL PAPER SERIES ISSUE 3 (BILINGUAL) Issued on Authority of the Chief of the Defence Staff OPI: JAG-DSLA 2008-06-18 Canada A-LG-007-SLA/AF-003 LIST OF EFFECTIVE PAGES Insert latest changed pages and dispose of superseded pages in accordance with applicable orders. NOTE The portion of the text affected by the latest change is indicated by a black vertical line in the margin of the page. Changes to illustrations are indicated by miniature pointing hands or black vertical lines. Dates of issue for original and changed pages are: Original ............................ 0 ................. 2008-06-18 Ch .................................... 3 ................................... Ch.................................... 1 .................................... Ch .................................... 4 ................................... Ch.................................... 2 .................................... Ch .................................... 5 ................................... Zero in Change No. column indicates an original page. Total number of pages in this publication is 47 consisting of the following: Page No. Change No. Page No. Change No. Cover......................................................................... 0 i/ii ...............................................................................0 Title ........................................................................... 0 1 to 41/42...................................................................0 A................................................................................ 0 Contact Officer: JAG-DSLA © 2008 DND/MDN Canada A A-LG-007-SLA/AF-003 TABLE OF CONTENTS PAGE I – INTRODUCTION...................................................................................................................................................1 II – THE CANADIAN ARCTIC ...................................................................................................................................4 III – CANADA’S ARCTIC WATERS: SECTOR THEORY TO HISTORIC INTERNAL WATERS ............................9 IV – CANADA’S ARCTIC WATERS: DEVELOPMENTS IN CANADA’S OCEANS LAW SINCE 1985................17 V – THE CANADIAN ARCTIC WATERS AND UNCLOS.......................................................................................22 VI – MARITIME NAVIGATION RIGHTS AND CANADA’S ARCTIC WATERS .....................................................24 VII – ENFORCEMENT OF SOVEREIGNTY AND ASSISTANCE TO LAW ENFORCEMENT: EXTENDING THE REACH BEYOND THE GRASP.............................................................................................32 VIII – CONCLUSION................................................................................................................................................40 i/ii A-LG-007-SLA/AF-003 The author, LCdr Guy Killaby, CD, LLB, LLM, is a member of the Office of the Judge Advocate General. He has served as a legal advisor on missions to Croatia and Bosnia in 1995, the Persian Gulf in 1998, Kosovo in 1999, and the Arabian Sea and Gulf of Aden in 2008. Opinions expressed or implied in this article are those of the author, and do not necessarily represent the views of the Department of National Defence, the Canadian Forces, or any agency of the Government of Canada. I – INTRODUCTION On the 28th of May, 2008 at Ilulissat, Greenland, the five Arctic Ocean coastal states – Canada, Denmark, Norway, the Russian Federation, and the United States – adopted and released a declaration concerning the diplomatic roadmap for the “orderly settlement of any possible overlapping claims” in the Arctic.1 The Conference participants announced that they would remain committed to the “extensive international framework” known as the law of the sea.2 That framework would provide “for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea.”3 A consequence of this commitment to the existing treaty is that the five Arctic Ocean coastal states see “no need to develop a new comprehensive international legal regime to govern the Arctic,” and they propose to further their cooperation through “bilateral and multilateral agreements between or among relevant states.” The Ilulissat Declaration was hailed by some of the participants as signifying that the “race to the North Pole is cancelled,” as the coastal states’ valuable continental shelf claims would be determined in accordance with Article 76 of the Convention, rather than distributed as part of an international trust or the common heritage of mankind, as apparently had been hoped by some European States and other Arctic observers. The importance of the Declaration to Canadians lay in this rejection by the Arctic Ocean coastal states of any dramatic new legal regime to govern the Arctic, as had been put in place for the Antarctic.4 Our rights to the waters and the seabed in the Arctic Ocean and the Arctic Archipelago will be determined in accordance with the provisions of the Convention. These international legal rights will be increasingly important as the Government of Canada struggles with new political and legal conflicts provoked by climactic, economic and geopolitical change. For Canada, the accelerated rate of reduction of ice-cover on Arctic waters presents a serious security challenge to be met. The probability of significant Arctic Ocean commercial shipping and of renewed interest in the exploitation of Arctic energy resources has raised public concern about the consequential problems of the enforcement of Canadian pollution controls and fisheries regulations. Further, this increased commercial activity will take place in waters that have 1 The Ilulissat Declaration, Arctic Ocean Conference, Ilulissat, Greenland 27-29 May, 2008, http://arctic- council.org/filearchive/Ilulissat-declaration.pdf. 2 There is no express reference in the Declaration to the 1982 United Nations Convention on the Law of the Sea [the Convention or UNCLOS]. This may be attributed to the fact that the United States has yet to ratify the Convention. 3 Supra note 1. 4 The Declaration was greeted with mixed reviews in Canada. Besides complaints that the Minister of Foreign Affairs rather than the Minister of Natural Resources Gary Lunn would have been a more appropriate national representative, most of the Canadian commentary was focused upon the advisability of the continued accommodation of the Arctic Council . The Arctic Council is an eight-nation coalition of northern states – Canada, Denmark (Greenland, Faroe Islands), Finland, Iceland, Norway, Sweden, the Russian Federation, the United States – and includes non-Arctic states, native organizations, and non-governmental organizations as observers. As observed by Randy Boswell in “Conference could mark start of Arctic power struggle” Canwest News Service (28 May 2008), online at www.dose.ca/news/story.html?id=d0135cd8-c15a-48a3-9579-0df5f8e185c1, comment was divided on the impact of the Declaration upon Canada: “University of Calgary political scientist Rob Huebert said the five-country plan to manage the ocean’s affairs means ‘Arctic issues will be dealt with on an ad hoc, piecemeal, bilateral basis. The Arctic is much too complicated to deal with in this manner today.” He said the coming problems require ‘an Arctic Council with teeth, or each issue will deteriorate on its own.’ “But University of British Columbia political scientist Michael Byers praised the direction of the grouping he dubbed ‘the Arctic Ocean 5.’ The five-nation summit was a ‘perfectly appropriate venue to discuss Law of the Sea issues as they relate to the Arctic Ocean seabed. Countries that do not border on the Arctic Ocean simply don’t have the same interests or potential disputes with respect to those areas and potential resources.” 1 A-LG-007-SLA/AF-003 for decades served as a covert and central theatre of strategic submarine operations. Perhaps paradoxically, the reduction of solid ice-cover will arguably make the Arctic Ocean and the waters of the Arctic Archipelago even more attractive to strategic nuclear submarine operations: vast and harsh, the Arctic Ocean is alternatively deep in the ocean basins and shallow above the continental shelf, with constantly moving ice that may be packed solid or rapidly melting. While these physical and hydrographic characteristics obviously affect the movement of submarines, it is the changing depths, salinity, and acoustic characteristics of the moving, grinding, and melting ice that provides natural cover for the maintenance of a submarine strategic deterrent. Further, Canada’s territorial interests in the Arctic islands and waters are already the subject of maritime and territorial boundary disputes, including disagreements with Denmark over title to Hans Island in the Nares Strait,5 the maritime and continental shelf delimitation of the Lincoln Sea, and a similar dispute with the United States in the Beaufort Sea.6 However, the most significant and well-known disputes have been provoked by the 1985 establishment by the Government of Canada of the straight baselines enclosing the waters of the Arctic Archipelago and their description as Canadian “historic internal