the northwest passage in turbulent times heavenly …

Faculty of Law Ghent University

Academic year 2012-2013

THE NORTHWEST PASSAGE IN

TURBULENT TIMES: HEAVENLY GATE OR ROAD TO PERDITION?

An analysis of the legal framework of the Arctic and the

Northwest Passage from a vessel-source pollution

perspective and its potential to cope with the challenges of

commercial navigation

Thesis to obtain the degree of ‘Master of Laws’

Submitted by

Angelo De Groote

(student number 00805713)

Supervisor: Prof. Dr. E. Somers Commissioner: Dra. J. Coppens

PREFACE

i

PREFACE hile the process of realising this thesis started about a year and a half ago, the

underlying idea was already maturing well before that time. In fact, the law of the

sea has been fascinating me from the moment I was introduced to this unique

branch of law. The words of the famous philologist and author J.R.R. TOLKIEN on his discovery

of the Finnish language are perhaps the best way to put this fascination into words: "[i]t was

like discovering a complete wine-filled cellar filled with bottles of an amazing wine of a kind

and flavour never tasted before. It quite intoxicated me...".1 Likewise, the overview of the law

of the sea, however brief, presented during the lectures of international law in my first year

at college, has left a lasting impression on me.

During the same period (2008-2009), the Arctic figured quite frequently in media reports.

What is more, it even surfaced in the midst of the Flemish beau monde when FRANCESCA

VANTHIELEN obtained her master's degree in comparative and international politics with a

thesis on this topical subject in 2009. Reading about this on a sunny afternoon in 2009, the

idea of obtaining my own master's degree in law with a thesis on the Arctic immediately

fired my imagination.

A few years later, having arrived in my third year at college, I was presented with the

opportunity to explore this fascinating theme on the occasion of my bachelor's dissertation.

While I addressed the dispute on the legal qualification of the Northwest Passage in the

latter, it soon became clear that this subject had much more to offer than the scope of a

bachelor's dissertation would allow for. This inspired me to revisit this intriguing dispute in

my master's thesis. Throughout this adventure, I have been exploring new horizons, gaping

in admiration at the endless spectrum of aspects the Arctic reveals for those who are willing

to embark on a journey into the unknown, leaving the beaten tracks behind.

The author being a Dutch-speaking student attending a Flemish University, it might seem

surprising that this thesis was written in English. However, this choice was consciously

made, considering that the English language is undoubtedly the lingua franca in the

maritime sphere. Also, this choice has provided a unique opportunity for me to improve my

command of the English language. Finally, writing this thesis in English has the benefit of

making it accessible to a broader public - for what that is worth.

Finally, I would like to seize the opportunity to say a word of thanks. In first instance, I

would like to thank Prof. Dr. E. SOMERS, thanks to whom I have had the chance to further

explore the intriguing branch of law the law of the sea is. Also, I would like to express my

deepest appreciation and gratitude for the advice, support and help I have received from my

Commissioner, Dra. J. COPPENS. She has really guided the process of realising this work in the

best way one could possibly wish for. Further, I would like to say a special thanks to my

parents, without the constant support and tremendous efforts of whom, not only the

realisation of this work, but also the pursuit of a master's degree in laws would not have

1 For the Dutch version, see H. CARPENTER, Het leven van J.R.R. Tolkien, Amsterdam, Uitgeverij M, 2002, 74.

W

PREFACE

ii

been possible. Also, I would like to thank my brothers and grand-parents, who have never

failed to support me.

DUTCH SUMMARY

iii

DUTCH SUMMARY

n Deel I van deze masterproef wordt ingegaan op de vooruitzichten omtrent de

ontwikkeling van maritieme activiteiten in het noordpoolgebied in het algemeen en met

betrekking tot de Noordwestelijke Doorvaart (Northwest Passage) in het bijzonder. Meer

concreet wordt hierbij de vraag opgeworpen of deze vooruitzichten voldoende

perspectieven bieden om de onderzoeksvraag van onderhavig werkstuk in toereikende

mate als relevant in ogenschouw te nemen. De verwachte potenties voor de ontwikkeling

van commerciële scheepvaart in de Noordwestelijke Doorvaart blijken beduidend

bescheidener te zijn dan wat de literatuur hieromtrent vaak met enige zin voor overdrijving

en provocatie wil doen vermoeden. Niettemin betekent zulks niet dat actie zich op heden

niet opdringt. Het is immers een feit dat in de scheepvaart in de noordelijke wateren een

stijgende trend valt waar te nemen en dat deze ontegenzeglijk noopt tot een weloverwogen

respons. Dat laatste is namelijk onontbeerlijk om de huidige ontwikkelingen in de

Noordwestelijke Doorvaart en in het noordpoolgebied in het algemeen, in goede banen te

leiden. Dit laat toe de potenties van het gebied op een duurzame manier te ontsluiten en te

benutten in plaats van te belanden op een neerwaarts pad dat niet alleen leidt naar de

achteruitgang van het noordpoolgebied, doch naar consequenties die eveneens nefast zijn

op het globale niveau.

Deel II van deze scriptie betracht vervolgens het in kaart brengen van het juridisch regime

dat van toepassing is op in het bijzonder de Noordwestelijke Doorvaart. Daarbij wordt

evenzeer aandacht besteed aan de bestaande structuren die het ruimere noordpoolgebied

omgeven, nu het artificieel zou zijn om de Noordwestelijke Doorvaart als een geïsoleerd

gegeven te benaderen. Deze analyse vertrekt vanuit het oogpunt van scheepsverontreiniging

en de impact daarvan op het kwetsbare mariene milieu in het noordpoolgebied.

Een algemeen overzicht van dit regime wordt gepresenteerd in Hoofdstuk 1, dat aanvangt

met de rudimentaire doch fundamentele vaststelling dat het internationaal zeerecht

onverkort van toepassing is op het noordpoolgebied. Dit laatste kan dan ook in wezen

gedefinieerd worden als een zee, nl. de Noordelijke IJszee. Het aldus geschetste regime

bestaat uit een ingewikkeld, drieledig kader.

Vooreerst en voornamelijk is er de internationale component, opgebouwd rond de centrale

kern die gevormd wordt door het Zeerechtverdrag. Dit opmerkelijke instrument wordt

vervolgens verder aangevuld door een ruim scala van zowel bindende als niet-bindende

internationale instrumenten. Deze werden voornamelijk tot stand gebracht in de schoot van

de Internationale Maritieme Organisatie (IMO).

Ten tweede fungeert binnen de regionale component de Arctische Raad (Arctic Council) als

een spilfiguur, na zichzelf doorheen de jaren te hebben ontpopt tot een efficiënt en

invloedrijk netwerk. Niettemin plaatsen structurele gebreken alsook recente

ontwikkelingen vraagtekens bij de houdbaarheidsdatum van de huidige Raad.

Ten derde bestaat de nationale component uit nationale wetten en reguleringen tot stand

gebracht door de Arctische staten. Het verdient hier in het bijzonder vermelding dat het

nationale niveau reeds erkend werd als het aangewezen forum voor de implementatie van

het juridisch kader met betrekking tot het noordpoolgebied. Binnen het gezelschap van de

I

DUTCH SUMMARY

iv

Arctische staten bekleedt Canada als voornaamste kuststaat een bijzonder relevante positie

ten aanzien van de Noordwestelijke Doorvaart. Bovendien vormde deze natie de avant-

garde met betrekking tot het noordpoolgebied in het algemeen, door het pad te effenen voor

de komst van art. 234 Zeerechtverdrag, de enige bepaling die uitdrukkelijk handelt over met

ijs bedekte gebieden.

Vooruitlopend op het laatste deel van dit werk, worden in Hoofdstuk 1 tot slot bovendien

ook reeds een aantal tekortkomingen van het huidige regime blootgelegd.

Het tweede hoofdstuk van Deel II van deze scriptie behandelt vervolgens het betwiste

juridische statuut van de Noordwestelijke Doorvaart met het oog op het bekomen van een

vollediger en verfijnder beeld van de juridische regels die van toepassing zijn op deze

veelbesproken wateren.

Enerzijds wordt in eerste instantie Canada's historische argumentatie in dit debat nader

onder de loep genomen. Zo wordt uitgelegd dat de Canadese claim gebaseerd op de notie

'historische interne wateren' geen zoden aan de dijk zet. Ook in zoverre zij terugrijpt naar

de theorie van de historische consolidatie van titel, lijkt de Canadese positie bijzonder flou.

Wat meer is, de potentie van deze aanpak om Canada's zaak vooruit te helpen, is afhankelijk

van de geldigheid van de het Canadese postulaat inzake de rechte basislijnen die de

Canadese Archipel omgeven. Wat dat laatste betreft, verdedigt de auteur het standpunt dat

de geldigheid van deze basislijnen naar internationaal recht benaderd moet worden vanuit

het Zeerechtverdrag, zowel in de hoedanigheid van verdragsrecht als in de hoedanigheid

van internationaal gewoonterecht. Deze analyse leidt tot de conclusie dat de

internationaalrechtelijke legitimiteit van de Canadese rechte basislijnen niet kan worden

hard gemaakt. Sterker nog, het wordt met klem onderstreept dat zelfs mocht dit wel het

geval zijn, het Canadese dogma in elk geval onverenigbaar is met de geclaimde exclusieve

soevereiniteit over de wateren van de Canadese Archipel.

Anderzijds wordt het Amerikaanse discours dat stelt dat de wateren van de Noordwestelijke

Doorvaart een internationale zeestraat uitmaken, weerlegd. Dit leidt tot de aanvaarding van

een compromisoplossing die inhoudt dat de wateren van de Canadese Archipel een

samenspel vormen van territoriale wateren en EEZ, waarop de respectievelijke regimes van

toepassing zijn. Schepen onder vreemde vlag die doorheen de Noordwestelijke Doorvaart

navigeren, zijn hierbij onderworpen aan een recht op onschuldige doorvaart, dat evenwel

kan worden opgeschort.

Deze uitkomst wordt vervolgens in dubbel opzicht juridisch genuanceerd. Vooreerst wordt

erop gewezen dat Canada een uitgebreide legislatieve alsook executoire rechtsbevoegdheid

behoudt ten aanzien van de wateren van de Noordwestelijke Doorvaart. Ten tweede dient

de mogelijkheid van een toekomstige internationalisatie van de Doorvaart in rekening te

worden genomen. Bovendien nuanceert Hoofdstuk 2 tot slot het juridisch debat in zijn

geheel. Er wordt op gewezen dat de sterktes en zwaktes van Canada's juridische positie in

dit geschil slechts een beperkte draagwijdte hebben, gelet op het feit dat deze problematiek

totnogtoe in ruime mate als een politieke kwestie werd benaderd. Bovendien lijkt het erop

dat een politiek onderhandelde oplossing ook naar de toekomst toe een grote

aantrekkingskracht zal blijven uitoefenen. Deze overwegingen brengen de auteur tot het

verdedigen van een pragmatische aanpak, gericht op coöperatie.

DUTCH SUMMARY

v

Deel III van deze masterproef bouwt verder op de aanzet die reeds in Hoofdstuk 1 van Deel

II werd gegeven, door een aantal significante gebreken van de bestaande juridische

structuren in het voetlicht te plaatsen. Aldus wordt een onbetwiste nood aan hervorming

blootgelegd. In dat verband wordt vastgesteld dat nationaal recht alleen geen remedie biedt.

Ook de internationale en regionale componenten van het huidige regime lijken in bepaalde

gevallen slecht uitgerust te zijn om te dienen als de enige basis voor hervorming.

Aangaande de concrete hervormingsopties wordt een spectrum omschreven met aan het

ene uiteinde de pleidooien voor een flexibele hervormingsaanpak die vertrekt vanuit de

bestaande structuren, en aan het andere uiteinde de voorstellen tot de creatie van een zgn.

'Arctisch Verdrag'. De polarisatie in het huidige debat wordt genuanceerd, doch zonder

blind te zijn voor het antagonisme dat heerst tussen de onderliggende conceptuele kaders

die deze specifieke opties ondersteunen. Daarbij betreft het m.n. enerzijds het discours

inzake ecosysteemgebaseerd beheer en anderzijds het discours van het politiek realisme.

Wat dat laatste betreft, wordt in lijn met de nuances aangebracht in Hoofdstuk 2 van Deel II

het belang van het in aanmerking nemen van geopolitieke en praktische overwegingen voor

een doordachte analyse in de verf gezet.

Op basis van dit inzicht worden beide concepten vervolgens tegen elkaar afgewogen.

Enerzijds worden de juridisch-theoretische merites van een geïntegreerde,

ecosysteemgebaseerde aanpak die doorheen verschillende sectoren snijdt, erkend.

Dergelijke aanpak wordt meer bepaald belichaamd in de creatie van een omvattend,

juridisch bindend en regionaal dan wel internationaal Arctisch Verdrag. Anderzijds

onderstrepen overwegingen in termen van politieke en praktische haalbaarheid het verschil

tussen 'law in the books' en 'law in action'.

Tot slot sporen deze overwegingen aan tot het bewandelen van de gulden middenweg,

zowel in termen van de concrete opties voor hervorming als in termen van de onderliggende

concepten. Zonder opties rabiaat uit te sluiten, wordt dit standpunt verder vertolkt in een

voorstel tot een pragmatische benadering die kan bogen op daadwerkelijke operationele

impact. Deze benadering dient evenwel ook in de mate van het mogelijke te streven naar het

incorporeren van principes die binnen het plaatje van ecosysteemgebaseerd beheer passen.

Hierbij wordt in het bijzonder beklemtoond dat de filosofie van ecosysteemgebaseerd

beheer door middel van een geïntegreerde en intersectorale aanpak niet ten koste mag

komen van de operationele armslag van het juridisch regime. Nu afdwingbaarheid als de

grootste uitdaging van het internationaal recht zou kunnen worden gezien, is armslag per

slot van rekening precies wat het internationaal recht nodig heeft om niet te vervallen in

onmacht jegens de uitdagingen die in het verschiet liggen in het noordpoolgebied.

TABLE OF CONTENTS

vi

TABLE OF CONTENTS PREFACE....................................................................................................................................................................... i

DUTCH SUMMARY .................................................................................................................................................. iii

TABLE OF CONTENTS ........................................................................................................................................... vi

GENERAL INTRODUCTION .................................................................................................................................. 1

PART I ........................................................................................................................................................................... 7

THE NORTHWEST PASSAGE: .............................................................................................................................. 7

A WINDOW OF OPPORTUNITY AND A SOURCE OF LEGAL ISSUES .................................................... 7

Introduction ........................................................................................................................................................... 8

1. Arctic climate change: a facilitator for marine access? .................................................................... 9

1.1 Arctic ecosystems: complex and by no means fully understood .......................................... 9

1.2 The vulnerable Arctic in prey of particularly severe and accelerating climate change

................................................................................................................................................................................. 9

1.3 General implications: sea-ice retreat opening a window of opportunity ........................11

1.4 The Northwest Passage: a 'special case' due to regional & inter-annual variability

and complex geography ..............................................................................................................................12

§1. The complex geography of the Canadian Arctic Archipelago ...........................................12

§2. Regional (spatial) variability in the Arctic ...............................................................................13

§3. Inter-annual (year-to-year) variability in the NWP .............................................................13

2. Climate change in interplay with other relevant factors ..............................................................14

2.1 Key drivers of future Arctic marine activity, obstacles and uncertainties ......................14

2.2 Prospects for marine activity in the Arctic and the NWP ......................................................16

§1. Scenarios for marine activity in the Arctic in general .........................................................16

§2. Prospects for commercial shipping in the NWP in particular ..........................................16

Conclusion ............................................................................................................................................................18

PART II. ......................................................................................................................................................................19

DEFINING THE LEGAL FRAMEWORK APPLICABLE TO THE NORTHWEST PASSAGE ..............19

CHAPTER 1. ..........................................................................................................................................................20

The Arctic's legal regime: a multi-layered framework .......................................................................20

Introduction .....................................................................................................................................................20

1. The Arctic and the law of the sea ........................................................................................................22

1.1 Defining the Arctic region ...............................................................................................................22

TABLE OF CONTENTS

vii

1.2 The law of the sea and its applicability to the Arctic ...........................................................23

2. The law of the sea as reflected in the UNCLOS as the overarching legal framework ....24

2.1 The UNCLOS: a dynamic constitution of the oceans ............................................................24

2.2 The UNCLOS and vessel-source pollution throughout its maritime zones .................25

§ 1. The UNCLOS and vessel-source pollution: general .........................................................25

§ 2. The UNCLOS and its different maritime zones ..................................................................26

A. The general rule from a coastal state's perspective .......................................................26

B. The territorial sea ........................................................................................................................27

B.1 General ......................................................................................................................................27

B.2 Straits used for international navigation .....................................................................28

C. The contiguous zone ...................................................................................................................28

D. The exclusive economic zone ..................................................................................................29

E. The high seas ..................................................................................................................................30

F. Flag and port state jurisdiction and control ......................................................................31

2.3 Impact of the non-ratification of the UNCLOS by the US ....................................................31

§ 1. The non-ratification from an international, US and Canadian perspective ...........31

§ 2. The role of the UNCLOS in the US context through customary international law

......................................................................................................................................................................32

3. Other law of the sea instruments supplementing the UNCLOS ..............................................34

3.1 General ...................................................................................................................................................34

§ 1. A regime based on three levels ................................................................................................34

§ 2. The international level ................................................................................................................35

§ 3. The regional level ..........................................................................................................................36

§ 4. The conclusion reflected in the 2008 Ilulissat Declaration ..........................................37

3.2 The international regulation of (Arctic) maritime shipping through the IMO ..........38

§ 1. General ..............................................................................................................................................38

A. (Non-)mandatory instruments on the basis of a three-fold mandate ....................38

B. Instruments addressing the Arctic ........................................................................................38

§ 2. Discharge and emission standards ........................................................................................39

§ 3.CDEM standards .............................................................................................................................40

§ 4. Navigation standards...................................................................................................................41

§ 5. Contingency standards ...............................................................................................................42

§ 6. Liability and insurance requirements ..................................................................................42

TABLE OF CONTENTS

viii

4. Soft-law initiatives on the regional level through the Arctic Council ..................................43

4.1 Prehistory .............................................................................................................................................43

4.2 The Arctic Environmental Protection Strategy (AEPS) ......................................................43

4.3 The Arctic Council ..............................................................................................................................44

§ 1. A direct outgrowth of the AEPS ...............................................................................................44

§ 2. Goals and actors .............................................................................................................................45

§ 3. A promoter of soft law ................................................................................................................46

§ 4. Achievements .................................................................................................................................46

5. National legal frameworks (domestic law) ....................................................................................48

5.1 General observations ........................................................................................................................48

5.2 The Canadian domestic legal framework .................................................................................48

§ 1. Canada's Integrated Northern Strategy ...............................................................................48

§ 2. The 1996 Oceans Act and the establishment of straight baselines ...........................49

§ 3. The 1970 Arctic Waters Pollution Prevention Act (AWPPA) ......................................49

§ 4. The 2001 Canada Shipping Act (CSA) ...................................................................................51

§ 5. Voluntary application of guidelines and standards ........................................................51

5.3 Art. 234 UNCLOS - the 'Arctic Article' ........................................................................................52

§ 1. General ..............................................................................................................................................52

§ 2. Art. 234: a witch's brew ..............................................................................................................52

6. The Arctic's legal regime compared to the Antarctic Treaty System (ATS) ......................55

6.1 General observations ........................................................................................................................55

6.2 The UNCLOS .........................................................................................................................................56

6.3 The Antarctic Treaty System (ATS) ............................................................................................57

§ 1. General ..............................................................................................................................................57

§ 2. The 1959 Antarctic Treaty ........................................................................................................57

§ 3. The 1991 Madrid Protocol ........................................................................................................58

§ 4. The 1972 CCAS and the 1980 CCAMLR ................................................................................59

Conclusion ........................................................................................................................................................61

CHAPTER 2. ..........................................................................................................................................................63

Defining the status of the Northwest Passage ........................................................................................63

Introduction .........................................................................................................................................................63

1. The Canadian historic approach .........................................................................................................65

1.1 Historic internal waters ..................................................................................................................65

TABLE OF CONTENTS

ix

§ 1. Context ..............................................................................................................................................65

§ 2. Legal basis of the theory of historic internal waters ......................................................65

§ 3. The prerequisites and their application to the Canadian case ...................................66

A. General .............................................................................................................................................66

B. Exercise of effective control .....................................................................................................67

C. Over a substantial period of time ..........................................................................................68

D. With the acquiescence of foreign states .............................................................................69

E. Overall appreciation....................................................................................................................69

1.2 Historic consolidation of title resulting from straight baselines ....................................70

§ 1. General ..............................................................................................................................................70

§ 2. Exercise of administrative control over the region and the receipt of a title .......71

§ 3. Peaceful possession by the natural inhabitants of the region for a long period of

time .............................................................................................................................................................71

§ 4. General toleration .........................................................................................................................72

§ 5. Overall appreciation ....................................................................................................................72

2. Canada's Arctic straight baselines claim ........................................................................................73

2.1 Straight baselines in the Canadian Arctic context ................................................................73

2.2 Legal framework of reference .......................................................................................................74

§ 1. Origin of the legal concept of straight baselines ...............................................................74

§ 2. The question as to the relevant legal frame of reference ..............................................75

A. State of the relevant conventions ..........................................................................................75

B. Differences between conventional and customary international law ....................75

C. The legal reasoning......................................................................................................................76

§ 3. Applicability of the UNCLOS .....................................................................................................76

§ 4. Conventional provisions as customary international law ............................................78

A. Arts. 5(2) and 8(2) of the 1958 Geneva Convention, resp. UNCLOS .......................78

B. Arts. 4 and 7 of the 1958 Geneva Convention, resp. UNCLOS ....................................79

§ 5. Conclusion ........................................................................................................................................80

2.3 Straight baselines as tangential to navigation rights ...........................................................80

§ 1. General ..............................................................................................................................................80

§ 2. Straight baselines directly contradicting Canada's position .......................................80

§ 3. Foreign protest and Ottawa's own inconsistency before 1985 ..................................81

TABLE OF CONTENTS

x

2.4 Canada's position as to vessel-source pollution under its straight baselines claim:

what is at stake? .........................................................................................................................................82

§ 1. Canada's position under a valid straight baselines claim .............................................82

A. Environmental threats seen as non-innocent passage .................................................82

B. Rights of the coastal state respecting innocent passage ..............................................83

§ 2. Canada's position under an invalid straight baselines claim ......................................83

A. The NWP as a strait used for international navigation .................................................83

B. The 'middle ground' solution ..................................................................................................84

2.5 Geographic prerequisites................................................................................................................85

§ 1. General ..............................................................................................................................................85

§ 2. A coast which is deeply indented and cut into ..................................................................86

A. The seaward coasts of the islands of the Archipelago as deeply indented and cut

into ..........................................................................................................................................................86

B. Coastal islands as an extension of the mainland .............................................................86

§ 3. A fringe of islands in the immediate vicinity of the coast .............................................87

A. Two elements ................................................................................................................................87

B. Unity ..................................................................................................................................................87

C. Proximity .........................................................................................................................................87

§ 4. Appraisal...........................................................................................................................................88

2.6 Canada's application of the straight baselines system........................................................88

§ 1. General ..............................................................................................................................................88

§ 2. The general direction of the coast ..........................................................................................89

A. General observations ..................................................................................................................89

B. The general direction criterion applied to the Canadian case ...................................90

B.1 No general direction can be discerned .........................................................................90

B.2 The outer perimeter of the Archipelago as the 'coast' ...........................................90

C. Appraisal ..........................................................................................................................................92

§ 3. The close link between sea and land .....................................................................................92

§ 4. Economic interests evidenced by long usage ....................................................................92

2.7 Overall appraisal of Canada's straight baselines ...................................................................93

3. The NWP as a strait used for international navigation .............................................................94

3.1 General ...................................................................................................................................................94

3.2 The geographic criterion and the legal component: what is a 'strait' in legal terms?

..........................................................................................................................................................................95

TABLE OF CONTENTS

xi

3.3 The functional criterion: when is a strait used for international navigation? ...........96

§ 1. Legal value of the functional criterion ..................................................................................97

§ 2. Actual or potential use? ..............................................................................................................97

§ 3. Quantifying the actual use .........................................................................................................99

3.4 Appraisal ............................................................................................................................................ 101

4. Putting the debate into perspective while looking into the future .................................... 102

4.1 Politics of sovereignty versus a crusade in the name of freedom of navigation.... 102

§ 1. The Canadian politics of sovereignty ................................................................................. 102

§ 2. The US crusade for freedom of navigation ...................................................................... 103

4.2 Unwillingness to concede or compromise ............................................................................ 104

4.3 The need for a multilateral, functional approach focussing on the vessel ............... 105

4.4 Avenues for cooperation .............................................................................................................. 106

Conclusion ..................................................................................................................................................... 108

PART III. .................................................................................................................................................................. 110

CONSIDERATIONS ON THE NEED AND OPTIONS FOR REFORM .................................................... 110

Introduction ...................................................................................................................................................... 111

1. Deficiencies of the current regime ...................................................................................................... 112

1.1 Deficiencies on the international level ....................................................................................... 112

1.2 Deficiencies on the regional level ................................................................................................. 113

1.3 Domestic law as a remedy? ............................................................................................................. 114

2. Some considerations on the options for reform and their underlying conceptual

frameworks ....................................................................................................................................................... 114

2.1 The options for reform: a spectrum from mixed reform to an Arctic Treaty? ........... 114

2.2 Competing underlying conceptual frameworks: ecosystem-based management

versus (political) realism ........................................................................................................................ 116

§ 1. The importance of geopolitical considerations to a well-reasoned analysis ......... 116

§ 2. Towards a comprehensive approach? ................................................................................... 117

A. Pleadings for a comprehensive treaty aimed at an integrated, cross-sectoral and

ecosystem-based approach ............................................................................................................ 117

B. The political and practical feasibility of a comprehensive approach ....................... 118

§ 3. Towards a legally binding approach? .................................................................................... 119

A. The pleadings for a hard-law approach as a reaction to the current soft-law

regime ..................................................................................................................................................... 119

B. The political feasibility of a binding treaty ......................................................................... 120

TABLE OF CONTENTS

xii

C. Practical challenges posed by the creation of a binding treaty ................................... 121

§ 4. Towards a regionally- or internationally-scaled approach? ......................................... 122

§ 5. The way forward? .......................................................................................................................... 123

Conclusion ......................................................................................................................................................... 125

GENERAL CONCLUSION ................................................................................................................................... 127

REFERENCE LIST NOTES ................................................................................................................................. 130

BIBLIOGRAPHY .................................................................................................................................................... 136

GENERAL INTRODUCTION

1

GENERAL INTRODUCTION 1. MOTIVATION OF THE SUBJECT AND ITS RELEVANCE

t first sight, the title of this paper might seem somewhat 'exotic' and of little concern

to the average Belgian jurist. On second thoughts however, a paper concerning the

impact of climate change on the Arctic's legal regime as seen from a law of the sea

perspective is anything but far-fetched, and certainly not irrelevant.

Indeed, it has to be admitted that the law of the sea itself, as the legal frame of reference of

this thesis, may seem as a 'niche' to many; unknown and unloved. Yet, there are those who

are not deaf to the legal dimension of the call of the sea. Indeed, some jurists - among whom

the author - will be attracted to the two important functions the seas have historically

performed. More particularly, firstly the seas have always served as a medium of

communication. Secondly, the seas have revealed vast - though not inexhaustible - living and

non-living resources. These functions have been stimulating the development of legal rules

for centuries.2 What is more, in these times concerns of food supply and economic

development, hence the potential of the seas in these respects, are only gaining importance.

Therefore, the law of the sea seems at present more topical than ever.3 As to the Arctic

region, one could hardly overlook how "[t]he current wave of interest in Arctic affairs has

struck with startling speed and remarkable force".4 The numerous "provocative questions"

and "scary scenarios" that have seen the light of day in recent years in the writings of

scholars, are a direct exponent of this interest5. These scenarios go as far as forecasting "a

new scramble for territory and resources"6, up to the point of "armed brinkmanship"7 or even

"an armed mad dash for its [i.e. the Arctic's] resources".8 Also journalists and political

scientists have played a major role in this respect, eager "to see conflict, as it is their job to

report it, analyse it and comment on it".9 Within the broader Arctic context, the much-

discussed waters of the Northwest Passage in particular, envisaged as the fabled 'Maritime

Philosophers Stone', fire the imagination.

With the world having become a 'global village', Belgian jurists have no excuse for being

blind to these developments "[a]s developments in the Arctic region project themselves

* For the footnotes, the author has opted for a specific system of abbreviated references. The abbreviated reference is mentioned between brackets whenever a reference is mentioned for the first time. Please find the complete reference in the alphabetic reference list which precedes the bibliography, at the end of this paper. ** References to legal provisions refer to the UNCLOS, unless otherwise stated. 2 SHAW, M.N., International law, Cambridge, Cambridge University Press, 2008, 553 (hereinafter SHAW). 3 SOMERS, E., Inleiding tot het Internationaal Zeerecht, Mechelen, Kluwer, 2010, 16 (hereinafter SOMERS). 4 YOUNG, O.R., "The Arctic in Play: Governance in a Time of Rapid Change", Int'l J. Marine & Coastal L. 2009, (423) 423 (hereinafter YOUNG). 5 YOUNG, 423. 6 BORGERSON, S.G., "Arctic Meltdown, The Economic and Security Implications of Global Warming", Foreign Aff. 2008, (63) 63 (hereinafter BORGERSON). 7 BORGERSON, 71. 8 BORGERSON, 65. 9 DE LA FAYETTE, L.A., "Oceans Governance in the Arctic", Int'l J. Marine & Coastal L. 2008, (531) 565 (hereinafter DE LA FAYETTE).

A


2

globally, they will necessarily have certain repercussions for European countries and their

citizens".10 This applies all the more, considering Brussels is the beating heart of the EU and

the EU currently concentrates its diplomatic efforts on acceptance as a legitimate partner

with legitimate interests in this debate.11 True, the EU cannot act in the capacity of a coastal

state in the Arctic.12 However, this has not stopped the European Commission's Directorate-

General for Maritime Affairs and Fisheries from emphasising that: "nothing stops the EU

from acting in a capacity comparable to that of a flag [s]tate, a port [s]tate, a market [s]tate or

with regard to the natural and legal persons of its [m]ember [s]tates. In addition, the EU and

its [m]ember [s]tates may also have various user interests (such as regarding the exploration

and exploitation of offshore hydrocarbon resources) and non-user interests (such as the

protection and preservation of the marine environment and safeguarding biodiversity) in the

Arctic marine area".13 After all, it should not be forgotten that the EU member states

collectively own the world's largest merchant fleet.14 It is in this context that, among other

instruments, the 2011 Sustainable EU Policy for the High North, saw the light of day.15 As

such, the subject of this paper certainly provides a wonderful opportunity to explore new

horizons instead of walking the beaten tracks to Belgian lawyers as well.

2. SITUATING THE SUBJECT, AIMS AND TITLE OF THIS PAPER

2.1 EXPLANATION OF THE SCOPE AND AIMS OF THIS PAPER

The subject of this paper initially and essentially originates from the topical yet poorly-

understood interplay between climate change (as an object of study of natural science) on

the one hand, and law - more particularly the law of the sea as a branch of international law

- on the other hand. More specifically, this paper attempts to examine the main

characteristics and components of the current legal regime from a law of the sea point of

view applicable to the development of commercial navigation in the Arctic region in general,

and the Northwest Passage in particular. With respect to the latter, this implies an analysis

of its disputed legal qualification under the law of the sea and the concomitant rights and

duties. Considering the extremely vulnerable Arctic marine environment, this paper grants

special attention to the environmental aspect for the purposes of this analysis. More

particularly, it intends to make an examination from the perspective of vessel-source

pollution (whether operational or accidental). After all, the limited scope of this work makes

a certain restriction of this very broad and rich subject absolutely necessary. Vessel-source

10 WEBER, S. and ROMANYSHYN, I., "Breaking the Ice: The European Union and the Arctic", Int'l J. 2010-2011, (849) 849 (hereinafter WEBER and ROMANYSHYN). 11 OFFERDAL, K., "The EU in the Arctic: In Pursuit of Legitimacy and Influence", Int'l J. 2010-2011, (861) 876 (hereinafter OFFERDAL). 12 European Union, European Commission, Directorate-General for Maritime Affairs and Fisheries, Legal Aspects of Arctic Shipping, Summary Report, 23 February 2010, Project N° ZF0924-S03, 7, available at: http://ec.europa.eu/maritimeaffairs/documentation/studies/index_en.htm, last accessed April 22, 2013 (hereinafter EU Commission, Summary Report); KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 253. 13 Ibid. 14 EU Commission, Summary Report, 5. 15 European Union, European Parliament, European Parliament Resolution on a Sustainable EU Policy for the High North, 20 January 2011, P7_TA(2011)0024, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-0024+0+DOC+XML+V0//EN, last accessed April 22, 2013.


3

pollution being one of the principal sources of pollution of the marine environment16, the

choice for this focus seems logical to the author.

In first instance, the examination of the subject should allow to determine whether the

existing legal structures are in need of reform in order to cope with environmental and

other concerns. Such concerns may result from the current and projected development of

commercial navigation in the Arctic in general and the Northwest Passage in particular.

Secondly, in case of an affirmative answer, this analysis should allow the identification of the

main deficiencies affecting the current regime.

The purpose of this paper lies firstly in the creation of a better understanding of the current

debate on reform, by putting the present discourse and its different components into

perspective. Secondly, while not having the ambition to sell ready-made answers, this paper

intends to provide some general considerations serving as beacons illuminating the way

forward by weighing different proposals against each other. This purpose can only be

achieved in a meaningful way by considering the legal discipline as part of a broader

context, not operating in a vacuum.

Ultimately, the relevance of this paper should be seen in terms of providing an onset for

further research and discussion. Now that the waters of the Arctic Ocean in general, and

those of the Northwest Passage in particular, might transform into commercially navigable

waterways in the future, the debate to prevent these developments from resulting in an

(environmental) deficit, is ongoing. As such, the author cherishes a little hope to make a very

modest contribution to this debate.

2.2 SITUATING THE SPATIAL SCOPE OF THE SUBJECT

For the purposes of this analysis, the 'Arctic region' is defined in flexible and holistic terms,

encompassing the Arctic ecosystem and its interdependent parts.

By the 'Northwest Passage(s)' (sometimes referred to in the plural form and hereinafter

abbreviated NWP), is meant the body of Arctic waters17 north of the Canadian mainland.

These waters comprise a variety of (seven)18 interconnected sea routes, between Davis

Strait and Baffin Bay in the east and Bering Strait in the west.19 Among these routes several

alternatives exist, depending on ice conditions20 and depth, as well as breadth. In its fullest

sense, the NWP comprises the marine routes spanning the North American Arctic region

from the Atlantic Ocean to the Arctic Ocean (i.e. to Greenland)21, and later to the Pacific

Ocean.22 This collection of intersecting routes winds through the straits and sounds

16 CLARK, L., "Canada's Oversight of Arctic Shipping: The Need for Reform", Tul. Mar. L. J.2008-2009, (79) 83 (hereinafter CLARK). 17 CLARK, 83. 18 PHARAND, D., "The Arctic Waters and the Northwest Passage: A Final Revisit", Ocean Dev. & Int'l L. 2007, (3) 29 (hereinafter PHARAND (2007)). 19 CLARK, 83. 20 European Union, European Parliament, Directorate-General for External Policies of the Union, Directorate B, Policy Department, Standard Briefing, "Opening of New Arctic Shipping Routes", JENSEN, Ø. and MOE, A., August 31, 2010, 7, available at: http://www.europarl.europa.eu/activities/committees/studies.do?language=EN, last accessed April 15, 2013 (hereinafter JENSEN and MOE). Note however that the statements in this document do not represent the official position of the EU (see page 2). 21 Ibid. 22 PHARAND (2007), 29.


4

between23 various Arctic islands located north of the Canadian mainland24, known as the

(Canadian) Arctic Archipelago.25

Defined as such26, the Passage, as a shipping route, begins (as seen from the Atlantic Ocean's

perspective) in the North Atlantic Ocean's Baffin Bay. Then it progresses into the Davis Strait

between Canada and Greenland, through the islands of the Arctic Archipelago to the

Beaufort Sea. Next, it progresses to the Chukcki Sea and the Bering Strait, and lastly into the

North Pacific.27 The NWP (predominantly) includes the waters adjacent to the Canadian

coastline28, the Canadian part of the Passage encompassing the waters going from Baffin Bay

in the east to the Beaufort Sea in the west.29 In fact, the NWP can be considered to lie in the

centre of the Canadian Arctic Archipelago.30 Essentially there are three feasible paths in the

west (McClure Strait, Prince of Wales Strait and Peel Sound), while the passage in the east is

traditionally limited to Lancaster Sound.31 A visualisation of the Passage can be found in the

figure below.32

23 MOLENAAR, E.J., "Arctic Marine Shipping: Overview of the International Legal Framework, Gaps, and Options", J. Transnat'l L. & Pol'y 2008-2009, (289) 292 (hereinafter MOLENAAR (2008)). 24 DE LA FAYETTE, 543. 25 MOLENAAR (2008), 292; ROSTON, M., Note, “The Northwest Passage’s Emergence as an International Highway”, Sw. J. Int’l L. 2008-2009, (449) 451 (hereinafter ROSTON). 26 Cf. Arctic Council, Arctic Marine Shipping Assessment 2009 Report, Norwegian Chairmanship, Oslo, Norway, 20, available at: http://www.pame.is/amsa-2009-report, last accessed April 22, 2013 (hereinafter AMSA); For more information on the AMSA, see LAWSON, B.B., "The Arctic Council's Arctic Marine Shipping Assessment" in

NORDQUIST, M.H., HEIDAR, T.H. and MOORE, J.N. (eds.), Changes in the Arctic environment and the law of the sea, Boston, Martinus Nijhoff Publishers, 2010, 159-176. 27 ROSTON, 451. 28 CLARK, 83. 29 Ibid. 30 WILSON, K.J., FALKINGHAM, J., MELLING, H. and DE ABREU, R., "Shipping in the Canadian Arctic: Other Possible Climate Change Scenarios", International Geoscience and Remote Sensing Symposium Proceedings (IGARSS) 2004, (1853) 1853-1854 (hereinafter WILSON et al.). 31 WILSON et al., 1854. 32 Adopted from JENSEN and MOE, 7.


5

2.3 EXPLANATION OF THE TITLE OF THIS PAPER

The unique and fragile Arctic ecosystem in itself puzzles scientists as one of the best-kept

secrets of this planet and at the same time has great appeal due to its alleged abundance of

living and non-living resources. Meanwhile, the effects of climate change on this ecosystem

appear to be extremely complex, as well as unpredictable, and are therefore poorly

understood. In addition, there is the assessment that sea-ice retreat in the Arctic region

seems to have been fastening its pace in recent years and clearly goes ahead on the scientific

projections. In legal terms, the Arctic is currently the subject of a debate concerning its

reform. This leads to a combination of a poor understanding of the significant developments

currently characterising the extremely valuable and vulnerable Arctic ecosystem and the

difficulty of making projections due to their highly unpredictable nature. In addition, there

are the doubts about the potential of the current legal framework to cope with these

developments.

As such, the times ahead may indeed be 'turbulent' in a certain sense. This immediately

explains the need for an adequate legal framework allowing to steer the current

developments in the Arctic in the right direction. As such, the NWP in particular may serve

as a 'heavenly gate', allowing to open up the Arctic region and its great potential. This would

allow to make use of the promising opportunities created by the shifting climate conditions

in a sustainable way. However, for lack of a well-considered and proactive approach, the

transformation of the waters of the High North into commercially navigable routes may

reveal itself as a 'road to perdition' instead. This would lead to a deficit in several ways, most

notably bearing the risk of environmental destruction with regional and potentially global

effects as well.

3. METHODOLOGY AND LIMITATIONS OF THIS PAPER

The methodology underlying the creation of this paper is essentially embedded in the

sphere of legal dogmatics, departing from a study of the relevant legal instruments. These

are treaty law, case law and the relevant legal literature. However, the author has attempted

not to adopt a merely descriptive approach, as the added value of such a work would be

limited. While some parts of this paper are to a large extent descriptive (e.g. certain parts of

Part II, Chapter 1), they are combined with interpretative elements. Most notably, special

attention has been paid to the interpretation of the often vague criteria enshrined in the

Convention on the Law of the Sea, in the light of the debate on the legal qualification of the

NWP (cf. Part II, Chapter 2). Also, analytical and explanatory approaches were incorporated,

perhaps most clearly in the last part of this work (Part III).

Besides this 'classic' approach, the author has made efforts throughout this paper to

acknowledge and emphasise the interdisciplinary character of the subject. Indeed, the

multidimensional nature of this subject causes it to balance on the edge between numerous

disciplines. These involve legal, geopolitical, scientific, economic, cultural, social and other

aspects. Among these aspects, especially the fascinating interplay between legal and

geopolitical considerations will reveal itself as the thread running through this work. As

such, the author holds the point of view that the extremely complex interplay between the

various disciplines involved, continues to offer new perspectives for research and study.

This explains why this subject continues to provide a fertile basis for debate and


6

contemplation, although it may have surfaced in numerous writings in recent years. This

applies all the more considering the rapidly changing circumstances that shape the contours

of this fascinating theme.

Unfortunately however, the limited scope of this paper does not allow to elaborate on all

these correlations and even within the legal perspective choices had to be made as to which

issues are addressed. The same applies for the degree of detail with which the selected

issues are treated. Therefore, it should be understood that the author lays absolutely no

claim to exhaustivity with the following dissertation, and only intends to focus on the most

essential points. Also, it should be recalled that the frame of reference of this paper is in first

instance a legal one, which explains why technical aspects, e.g. technical specificities relating

to ship construction standards etc., are beyond the scope of this paper.

4. OVERVIEW

In the first part of this paper (Part I), a preliminary question is put forward. More

particularly, the question is asked what will be the effect of the current climate change in the

Arctic region in general and in the NWP in particular, on the perspectives for commercial

navigation in the High North. As such, the author analyses the relevance of the research

question formulated above, based on scientific data respecting the climatological

developments. This way, the interplay between climate change and law is granted a special

position in this work.

The second part of this paper (Part II) in first instance attempts to map the legal regime (as

seen from the perspective of the law of the sea) applicable to the Arctic in general and the

NWP in particular, by presenting a general overview (Chapter 1). In second instance, this

general overview is further sophisticated by paying special attention to the dispute of the

legal status of the waters of the NWP under the law of the sea (Chapter 2).

In the third and last part of this paper (Part III), a number of deficiencies of the existing legal

structures are identified, hence the need for reform of the current regime. The debate on the

options for reform is put into perspective and the underlying conceptual frameworks are

explained and weighed against each other. This leads to some general considerations,

providing the onset for further research and discussion.

PART I

THE NORTHWEST PASSAGE: A WINDOW OF OPPORTUNITY AND A

SOURCE OF LEGAL ISSUES

I think over again

My small adventures

My fears

Those small ones that seemed so big

For all the vital things

I had to get and to reach

And yet there is only one great thing

To live to see the great day that dawns

And the light that fills the world

Inuit Poem*

PART I - INTRODUCTION

8

INTRODUCTION

he scope of this paper is of course of a strictly legal nature. However, in a paper that

basically considers legal issues resulting from climate change, it remains

indispensable to raise a question of natural science as a first step towards a legal

conclusion. Indeed, in the first place the question arises whether it is plausible at all that

climate change33 will result in the possibility to develop commercial shipping activities in

the Northwest Passage (hereinafter called NWP). After all, if this were not the case, the legal

question formulated in the above, would obviously seem quite irrelevant. In order to answer

this question the so-called 'key drivers of future Arctic marine activity' on the one hand, and

the obstacles and uncertainties hampering this development34 on the other hand, have to be

taken into account. The interplay between these aspects, results in several possible

scenarios concerning future use of the Arctic. According to the projected scenario, certain

legal issues arise that need to be addressed by means of regulation on the (inter)national

level. The latter forms the basis for the legal part of this paper (see Parts II and III).

* X., cited in HASSOL, S.J. (ed.), ACIA, Impacts of a Warming Arctic: Arctic Climate Impact Assessment, Cambridge, Cambridge University Press, 2004, 97, available at: http://www.acia.uaf.edu, last accessed April 22, 2013 (hereinafter ACIA). 33 For a description of the notion climate change in IPCC terminology and a comparison with the notion used in the UN Framework Convention on climate change, see IPCC, 2007: Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Inter-governmental Panel on Climate Change [Core Writing Team, PACHAURI, R.K and REISINGER, A. (eds.)]. IPCC, Geneva, Switzerland, 30, available at: http://www.ipcc.ch/publications_and_data/ar4/syr/en/contents.html, last accessed April 22, 2013 (hereinafter IPCC AR4). 34 Cf. SCHOFIELD, C. and POTTS, T., "Across the Top of the World? Emerging Arctic Navigational Opportunities and Arctic Governance", Carbon & Climate L. Rev. 2009, (472) 475 (hereinafter SCHOFIELD and POTTS, "Across the Top").

T

PART I

9

1. ARCTIC CLIMATE CHANGE: A FACILITATOR FOR MARINE ACCESS?

1.1 ARCTIC ECOSYSTEMS : COMPLEX AND BY NO ME ANS FULLY UNDERSTOOD

When considering this question, probably the first thing coming to mind is the universal

image of the polar bear marooned on a lonely ice floe bound for open waters35 - the sad

symbol of a fragile ice-covered world, once teeming with life, now prey to the ever-warming

boreal climate and doomed to fall into oblivion. Does this image truly fit the facts?

In any case it is beyond doubt that Earth's climate is, globally speaking, actually changing:

the 2007 IPCC Fourth Impact Assessment doesn't beat about the bush.36 What is more,

according to several authoritative sources, this change is taking place at an unprecedented

rate in the experience of modern human society.37 Also, it is considered a fact that the Arctic

is in constant interplay with these global evolutions38, although this interaction is at present

too complex to be fully understood.

Despite previous thorough scientific research and the development of several climate

models, to date many uncertainties remain with respect to climate change and its impact in

the Arctic. Indeed, some authors were already led to the conclusion that "Arctic ecosystems

are complex and by no means fully understood in the context of changing climatic, ecological

and oceanographic conditions".39 More particularly, the sea-ice conditions in the Arctic

waters are of paramount importance to the possibilities of developing commercial shipping

activities. In this respect, the same view is reflected in the 2009 Arctic Marine Shipping

Assessment (hereinafter called AMSA40). This study concludes that "a review of recent

assessments, observations and studies indicate that there remains much to understand about

the present and future trends in Arctic sea ice".41

1.2 THE VULNERABLE ARCTIC IN PREY OF PARTICULARLY SEVERE AND

ACCELERATING CLIMATE CHANGE

On the other hand, there are some common outlines and a certain consensus about what we

do know. In first instance, there is no doubt about the fact that the Arctic is extremely

vulnerable to observed and projected climate change.42 After all, the fragile Arctic ecosystem

is characterised by a relatively short growing season, a smaller variety in biodiversity

compared to the planet's more temperate regions43 and a highly variable climate.44 It has

indeed been stated that this unique and fragile region is experiencing some of the most

rapid and severe climate change on Earth.45 Clearly, it is beyond doubt that the Arctic region

35 WILLIAMS, G., Arctic Labyrinth, The Quest for the Northwest Passage, London, Penguin Books, 2009, 380

(hereinafter WILLIAMS). 36 Cf. ACIA, 8; IPCC AR4, 2. 37ACIA, 8; Cf. National Aeronautics and Space Administration (NASA), referring to the IPCC AR4, see the website of the NASA, Global Climate Change (regarding Vital Signs of the Planet) http://climate.nasa.gov/evidence/, last accessed April 22, 2013. 38 See for example ACIA, 10. 39 SCHOFIELD, C., POTTS, T. and TOWNSEND-GAULT, I., "Boundaries, Biodiversity, Resources, and Increasing Maritime Activities: Emerging Oceans Governance Challenges for Canada in the Arctic Ocean", Vt. L. Rev. 2009-2010, (35) 38 (hereinafter SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries"). 40 Arctic Council, Arctic Marine Shipping Assessment 2009 Report, Norwegian Chairmanship, Oslo, Norway, 187 p., available at: http://www.pame.is/amsa-2009-report, last accessed April 22, 2013 (hereinafter AMSA). 41 AMSA, 34. 42ACIA, 10, cited in AMSA, 26. 43 ACIA, 4. 44 Ibid.; Cf. AMSA, 25 concerning the seasonality of the Arctic environment. 45 ACIA, 10.

PART I

10

is confronted with drastic climate changes.46 Furthermore, according to the ACIA these

climate changes are being experienced particularly intensively in the Arctic47, substantiating

its statement by pointing out that Arctic temperatures have risen at almost twice the rate as

the rest of the world in the past few decades48, something which was literally confirmed by

the 2007 IPCC Synthesis Report.49 At present, the increasingly rapid rate of climate change

adds even more challenges to the adaptive capacity of Arctic life, besides the already existing

stresses generated by human activities.50

These observations are evidenced by the fact that the evolutions in the Arctic sea-ice cover

unequivocally suggest a long-term downward trend51, regarding both sea-ice extent and

thickness. These are two main indicators of the Arctic sea-ice decline, which is in turn

considered a 'key climate change indicator' by the AMSA.52

On the one hand, the AMSA concluded that the Arctic sea ice extent has been declining for

the past five decades and that its thickness has been decreasing during the past four

decades53, though the latter has been far more difficult a factor to monitor.54 Moreover, this

decrease in sea-ice extent has been observed in each of the four seasons and in each of the

twelve months, though the decline is larger in summer than in winter.55 Moreover, it is

highly remarkable that the six lowest seasonal minimum ice extents in the satellite record

have all occurred in the period between 2007-2012. The year 2007 was characterised by

dramatic changes, considering the record low reached on September 18, 2007.56 Admittedly,

this may (in part) be explained by substantially contributing weather conditions and no new

records were set in 2008 to 2010. Yet, the 2008-2010 minimum ice extent did remain far

below the 1979-2000 average minimum and in 2011 nearly the same result as in 2007 was

reached, with weather conditions being more normal in this year.57 Still more significant are

the reports of the NSIDC (the US National Snow and Ice Data Center) that on September 16,

2012 the Arctic sea-ice extent had dropped to its lowest point ever since the beginning of

the recordings in 1979. More specifically, the sea-ice extent was situated a remarkable

760,000 km² or 18% below the previous minimum sea-ice extent record58. Also, the sea-ice

extent was a dazzling 3,290,000 km² or 49% below the 1979-2000 average minimum.

As the spatial distribution of the ice extent, it is interesting to note that the Northern Sea

Route (NSR) even opened in mid August 201259 (as well as in 2007).60 September 2007

46 ACIA, 10 and 12-13. 47 ACIA, 8. 48 Ibid. 49 IPCC AR4, 30. 50 ACIA, 5. 51 See the website of the National Snow and Ice Data Center (NSIDC), Arctic Sea Ice News and Analysis, Frequently Asked Questions on Arctic Sea Ice for the reason why this average is used as a standard: http://nsidc.org/arcticseaicenews/faq/#1979average, last accessed April 15, 2013. 52 AMSA, 25; Cf. AMSA, 26, referring to ACIA. 53AMSA, 25 and 35. This is confirmed by NASA, see http://climate.nasa.gov/evidence/, last accessed April 22, 2013. As to sea-ice thickness, see AMSA, 30 and 35; Cf. ACIA, 83. 54 AMSA, 32. 55 AMSA, 25. 56 See the website of the National Snow and Ice Data Center, State of the Cryosphere: http://nsidc.org/cryosphere/sotc/sea_ice.html, last accessed April 15, 2013. 57 Ibid. 58 Ibid. 59 Ibid.

PART I

11

witnessed the first opening in recorded history of a shipping lane between the Pacific and

Atlantic Oceans with the opening of the Northwest Passage.61

On the other hand, the observed decrease in sea-ice thickness prompted the AMSA to speak

of a rapid decline of thick, multi-year sea ice62 in the central Arctic Ocean. This decline is of

great importance, since multi-year sea ice is thicker and therefore less prone to be broken

up or melted by weather events than seasonal sea ice.63

Taking both the decline in sea-ice extent and thickness into account, this indicates an Arctic

Ocean with longer seasons of less sea-ice cover. Moreover, the ice thickness is reduced,

which implies an improvement in ship accessibility around the margins of the Arctic Basin.

Yet, these evolutions will not be uniformly distributed.64

Moreover, this considerable Arctic sea-ice retreat is not only projected to continue

throughout the twenty-first century65, but is even expected to accelerate.66 Indeed, the

Arctic is known to warm faster than lower altitudes, an assessment which the ACIA connects

to five contributing factors67, among which the so-called 'ice-albedo feedback loop'.68

However, it has been pointed out that it remains extremely difficult to make an accurate

prediction when it comes to estimate the impact of this 'loop effect'.69

1.3 GENERAL IMPLICATIONS : SEA-ICE RETREAT OPENING A WINDOW OF

OPPORTUNITY

The reason why the abovementioned developments have been highlighted so far, is most

aptly expressed by the ACIA's so-called 'key finding number 6' that "reduced sea ice is very

likely to increase marine transport and access to resources" [emphasis added].70 This

statement is obviously of great importance to the prospect of future commercial shipping in

the NWP. This view is echoed by the 2009 AMSA, stating that "the Arctic sea ice cover is

undergoing an extraordinary transformation that has significant implications for marine

access and shipping throughout the Arctic Basin" [emphasis added].71 Also, the AMSA

concludes that "climate change as indicated by Arctic sea ice retreat is a facilitator of marine

access. It is highly plausible there will be greater marine access and longer seasons of

navigation, except perhaps during winter (...)".72

60 FRANCKX, E., "Should the Law Governing Maritime Areas in the Arctic in the Arctic Adapt to Changing Climatic Circumstances?", Cal. W. Int'l L. J. 2010-2011, (397) 409 (hereinafter FRANCKX). 61 FRANCKX, 409-410. 62 This refers to sea ice which survives the summer melt season, as opposed to seasonal sea ice, which does not survive the summer melt season and grows through the autumn and winter months during the long polar night, see AMSA, 103. 63 AMSA, 32. 64 ACIA, 83. 65 AMSA, 34. 66 ACIA, 8; Cf. the statement of the Canadian Government that climate models predict that summer sea ice in the Arctic will decrease up to 80 % by 2100 as a result of climate change: http://www.tc.gc.ca/eng/marinesafety/debs-arctic-climate-302.htm, last accessed April 15, 2013. 67 ACIA, 20; This is further explained in MENDEZ, T., “Thin Ice, Shifting Geopolitics: The Legal Implications of Arctic Ice Melt”, Denv. Int’l J. L. & Pol’y 2010, (527) 529 (hereinafter MENDEZ); The term was used in BORGERSON, 65. 68 BORGERSON, 65. 69 MENDEZ, 529. 70 Cf. AMSA, 2. 71 AMSA, 25. 72 AMSA, 35.

PART I

12

However, the last words of this quote illustrate that it remains of capital importance to

emphasize that there is no credible scientific source contesting that the development of sea

ice is still expected each year at the end of the summer season.73 In other words, the

scenarios for the Arctic do not involve the region becoming totally ice-free and navigable on

a year-round basis. Instead, they only project a seasonal (brief) ice-free period, a 'navigation

season'74 so to speak. As the AMSA clarifies, "it is uncertain how long the ice-free period will

be during the late summer or exactly when it will occur in any given year. It could be a window

of time as brief as a few days or several weeks, or nearly ice-free conditions could last longer in

the central Arctic Ocean".75 With respect to the NWP, the AMSA concludes on the basis of the

indications of global climate models, that sea ice will remain present, not only throughout

the winter, but for app. nine months each year. This is, still according to the AMSA, a

significant factor for Arctic transport regulation and protection of the marine

environment.76

Nevertheless, the relevance of the seasonal downward trends in sea-ice coverage described

above, is not to be underestimated. After all, even a brief ice-free period in summer would

have significant implications. These would relate especially to design, construction and

operational standards of all future Arctic marine activities.77 While this has brought

scientists to make predictions as to when ice-free periods allowing for Arctic shipping would

see the light of day, the AMSA stresses in its findings that future sea ice conditions remain

uncertain.78 Such predictions are indeed dependent on numerous factors (see in particular

point 1.4), so they may differ extremely between the various sub-regions of the Arctic.

Therefore, these predictions ultimately don't tell much about the future use of the NWP as a

viable commercial route. More interestingly, the AMSA has concluded that the summer sea-

ice coverage will be most persistent and hence the last to disappear in the northern

waterways of the Canadian Archipelago (and the northern coast of Greenland).79

1.4 THE NORTHWEST PASSAGE: A 'SPECIAL CASE ' DUE TO REGIONAL &

INTER-ANNUAL VARIABILITY AND COMPLEX GEOGRAPHY

§1. THE COMPLEX GEOGRAPHY OF THE CANADIAN ARCTIC ARCHIPELAGO

The foregoing would suggest that an ice-free, hence navigable, Arctic is only a matter of

time. However, when considering the NWP in particular, things are not as simple as that.80

That the Canadian Arctic Archipelago (and hence the NWP) is characterised by an extreme

geographic complexity, is not hard to imagine. After all, the Canadian maritime Arctic covers

an area of app. 2.1 million km², with the Archipelago comprising a dazzling 36,000 islands,

three of which are among the world's ten largest.81 Moreover, the Canadian Archipelago

displays unique geographic characteristics, in the sense that many of its channels are

73 AMSA, 27-28 and 103. 74 Meaning the number of days per year in which there are navigable conditions, generally meaning less than 50% sea-ice concentration, see ACIA, 83. 75 AMSA, 103. 76 AMSA, 113. 77 AMSA, 34 and 103. 78 AMSA, 35. 79 AMSA, 32; Cf. AMSA 112, referring to the five modes used in the ACIA. 80 AMSA, 26. 81 AMSA, 112.

PART I

13

oriented north-south (cf. infra)82 and shipping is hampered by natural chokepoints.83 This is

also reflected in the 2009 AMSA statements addressing the Canadian Arctic and the NWP:

"there are (...) unique geographic and climatic conditions that make the region challenging for

maritime navigation, including the presence of ice for most of the year, as well as the many

narrow and shallow, often uncharted, areas through the [A]rchipelago".84 This is also very

aptly illustrated by WILLIAMS, who puts the prospect of the NWP as a regular shipping route

into perspective. This author explains that on the one hand, the most southern routes

through the NWP are the likeliest to be ice-free indeed, but also the shallowest and

narrowest. Therefore, they remain unsuited to passage of large merchant ships after all. On

the other hand, the more northerly deep-water routes pose problems due to razor-sharp

multi-year sea ice.85 Moreover, this complicated geography explains why the traditional

climate models are not useful for determining the state of sea ice in the NWP region.86

§2. REGIONAL (SPATIAL) VARIABILITY IN THE ARCTIC

This complex geographic condition also illustrates the scale and diversity of the Arctic

region, which is by consequence characterised by significant sub-regional variations in

climate and sea-ice conditions.87 Taking all of this into account, it is clear that regional

differences may be very significant. Therefore, one has to be very careful before making a

great song and dance about statements such as the aforementioned fabled ACIA key finding

number 6. It is for example of paramount importance to differentiate between the Northern

Sea Route on the one hand, and the in terms of infrastructure far less developed88 Northwest

Passage on the other hand when it comes to future commercial navigation. Indeed, the

predictive models used in the ACIA can be applied more easily to the NSR than to the NWP.89

The Kremlin might be delighted to hear that a prolongation of the navigation season from

20-30 days in 2004 to 90-100 days by 2080 has been projected for Russia's Northern Sea

Route.90 However, the situation is quite more nuanced and less predictable when the NWP is

concerned.91 Most importantly, for the latter ice problems are expected to remain a major

limiting factor for many years.92

§3. INTER-ANNUAL (YEAR-TO-YEAR) VARIABILITY IN THE NWP

On the other hand, regional variability is not an important factor within the vast NWP region

itself, since an overall negative regional sea-ice trend has been observed throughout both

the eastern and western regions of the Canadian maritime Arctic and the NWP.93 However, it

has been stated that the sea-ice conditions in the Canadian Arctic Archipelago are of an

exceptionally complex nature. Also, they are expected to display a high degree of variability

for the decades ahead.94 The variability mentioned here, refers to the quite extreme year-to-

82 Ibid. 83 Cf. AMSA, 114. 84 AMSA, 112. 85 Cf. JENSEN and MOE, 4; WILLIAMS, 382. 86 AMSA, 27 and 35. 87 ACIA, 18. 88 JENSEN and MOE, 4. 89 AMSA, 27. 90 AMSA, 28. 91 FRANCKX, 407. 92 JENSEN and MOE, 15. 93 Cf. AMSA, 27. 94 Cited in FRANCKX, 407.

PART I

14

year variability in sea-ice coverage, since the NWP region exhibits large differences for a

given year95, which is also emphasized by the Canadian Ice Service data.96 Therefore, it

remains of the utmost importance to note that, while Arctic climate change has been

considered a facilitator for marine access by the AMSA (cf. supra), this does not necessarily

imply less difficult ice conditions for marine operations in the NWP.97 As the AMSA points

out, the highly variable inter-annual sea-ice conditions will create a challenge for seasonal

operations, as well as for planners judging the risk and the reliability of an Arctic maritime

transportation system for the long term.98

Going even one step further, it seems to be expected that the melting of Arctic sea ice may

initially (in the early part of the twenty-first century) result in still less predictable ice

conditions and still more challenging conditions for regular marine transportation.99 As

such, it is expected to create hazards even for ice-strengthened vessels and ice-breakers.100

Also, it makes viable marine operations expensive due to the high operational costs that are

the result of this.101 This is due to the fact that fast ice and the relatively stable conditions

that previously existed in many coastal regions, are replaced by thinner sea ice of a smaller

extent, which is likely to be more mobile and dynamic.102 Moreover, the further decrease of

the ice-cover is expected to weaken the so-called 'ice-bridges', currently controlling the

amount of multi-year sea ice that moves into the north-south oriented channels of the

NWP.103 This development causes these bridges to be maintained for shorter periods of

time. Thus, more multi-year sea ice and icebergs could be swept southward into and move

with greater ease through the marine routes of the NWP104, with the southern migration of

pack-ice in the Beaufort Sea potentially even hampering or blocking the western entry

to/exit of the NWP.105

2. CLIMATE CHANGE IN INTERPLAY WITH OTHER RELEVANT

FACTORS

2.1 KEY DRIVERS OF FUTURE ARCTIC MARINE ACTIVIT Y , OBSTACLES AND

UNCERTAINTIES

Besides the climatic changes in the Arctic, also crucial stimuli for marine activity and

relevant obstacles and uncertainties have to be taken into account. As to the former, one

could describe at length the numerous interests that have caused the prospect of a

seasonally ice-free Arctic and the long-awaited emergence of the NWP as a commercial

highway to fire the (capitalist) imagination. Perhaps most noteworthy among these is the

fact that, while less impressive than the savings by using the NSR compared to the Suez

canal, the distance- (and therefore time- and money-) savings by using the NWP instead of

95 AMSA, 32. 96 AMSA, 27. 97 Cf. AMSA, 35. 98 AMSA, 32. 99 ACIA, 84. 100 SCHOFIELD and POTTS, "Across the Top", 475-476. 101 AMSA, 114. 102 ACIA, 84, referring to data of the Canadian Ice Service. 103 ACIA, 84. 104 ACIA, 85; This is also very well explained in SCHOFIELD and POTTS, "Across the Top", 475-476. 105 SCHOFIELD and POTTS, "Across the Top", 476.

PART I

15

the Panama Canal remain substantial.106 For example, the voyage from Seattle to Rotterdam

would be reduced with about 2,000 nm or nearly 25% compared to the traditional route via

the Panama Canal.107

More importantly however, the AMSA has acknowledged some of these numerous interests

(while uncertain108) as 'key drivers for Arctic marine activity'.109 On the one hand it

envisages Arctic natural resource development (referring to hydrocarbons, hard minerals

and fisheries), and on the other hand regional trade. As the AMSA explains, the ever

increasing scarcity of the world's natural resources triggers the global commodities prices

(e.g. for oil, gas, hard minerals, etc.) to rise. This in turn has led to an increase in interest in

developing Arctic natural resources, with especially the high probability of new Arctic

resource discoveries driving this quest. As most of these new developments will require

marine transport and operational support, all of this stimulates the transformation of

marine activity in the Arctic.110

Despite the presence of these driving forces, it remains crucial to point at the equally

countless relevant obstacles and uncertainties hampering this development. In its

conclusions on the regional futures of the Arctic sub-regions, the AMSA lists several so-

called 'key uncertainties', which it considers as "critical factors illustrating the great

complexity and range of global connections surrounding future use of the Arctic Ocean".111 By

now, this formula indeed seems to have become the thread running through the story

brought in this first part. A few among the most important of these 'global connections',

besides the variability in climate change itself, are112: socio-economic responses to climate

change (e.g. emission controls), probably impacting all elements of future Arctic marine

activity113; the global trade dynamics, including the evolution of oil prices; governance

issues, i.e. legal stability of marine use in the Arctic Ocean, including the possible escalation

of Arctic maritime disputes. As to the latter, it is most noteworthy that there are several

legal and politically sensitive disputes concerning jurisdiction in the NWP (see Part II),

resulting in legal uncertainty, which has a negative impact on the plausibility of commercial

use.114 Other such aspects include: Arctic state cooperation and specifically, agreements on

Arctic ship construction rules and global operational standards (within the International

Maritime Organisation, hereinafter IMO); a major shipping disaster, especially taking into

account the lack of major ports and other infrastructure (particularly in the NWP), which

has indeed been deemed to be significantly connected to most environmental protection

(Part III) and marine safety measures and strategies115; multiple use conflicts taking into

account the potential overlap or conflict with indigenous use and the presence of many non-

Arctic stakeholders (e.g. non-Arctic states, marine shippers, insurers, shipbuilders and tour

ship operators); and the development of marine technologies (requiring substantial

financial investments). Also highly significant for the NWP would be the limited (seasonal)

106 JENSEN and MOE, 4. 107 BORGERSON, 69. 108 AMSA, 14. 109 AMSA, 5. 110 AMSA, 92 and 120. 111 AMSA, 93. 112 Cf. ibid. 113 AMSA, 121. 114 JENSEN and MOE, 12. 115 AMSA, 121.

PART I

16

window of operation for Arctic shipping and the role of the marine insurance industry. Most

unfortunately, the limited scope of this paper does not allow for further elaboration of these

captivating aspects.

2.2 PROSPECTS FOR MARINE ACTIVITY IN THE ARCTIC AND THE NWP

§1. SCENARIOS FOR MARINE ACTIVITY IN THE ARCTIC IN GENERAL

Thus we arrive at the point where all pieces of the puzzle fall together in four predictive

models (called 'scenarios') elaborated by the AMSA, casting projections on the future use of

the Arctic in general. While not specifically considering the particularities of the NWP

region, it remains relevant to briefly mention these, as they highlight the pivotal role oceans

governance, which is at the heart of Part III of this paper, will play. These scenarios are

based upon two primary drivers and key uncertainties, the first of which being 'Resource &

Trade'. These refer to the level of demand for Arctic natural resources and trade. The second

axis of the matrix is 'Governance', referring to the degree of relative stability of rules for

marine use both within the Arctic and internationally.

The first scenario to result from the interplay of these two variables, labelled 'Arctic Race',

implies a high demand and unstable governance setting the stage for an economic rush for

Arctic wealth and resources.116 In this scenario there is a lack of an integrated set of

maritime rules and regulations, as well as insufficient infrastructure.117 A second scenario is

the 'Arctic Saga', meaning a high demand and stable governance leading to a healthy rate of

development that includes concern for the preservation of the Arctic ecosystems and

cultures.118 Here, improved marine infrastructure will make transportation safer and more

efficient.119 A third possibility is the 'Polar Lows' scenario, including low demand and

unstable governance bringing a murky and underdeveloped future for the Arctic. This

implies minimal marine traffic and low attention to regulations and standards, that remain

weak and undeveloped.120 Finally, in the event of the 'Polar Preserve' scenario, the

development in the region would be slowed by low demand and stable governance,

meanwhile introducing an extensive eco-preserve with stringent no-shipping zones.121

§2. PROSPECTS FOR COMMERCIAL SHIPP ING IN THE NWP IN PARTICULAR

Particularly with respect to the Canadian Arctic and the NWP, the AMSA observed that the

current commercial use of the Passage is situated mainly in the field of community re-

supply, bulk shipments of raw materials (e.g. iron ore), supplies, exploration activity for

resource development operations and tourism.122

Despite this modest role of the NWP at present, it is clear - as WILLIAMS so elegantly put it -

"we wait on the threshold of a new age in northern navigation".123 While the past has

witnessed a heroic quest for the 'Holy Grail' of Victorian exploration124, the expectations

116 AMSA, 94. 117 AMSA, 96. 118 AMSA, 94. 119 AMSA, 97. 120 AMSA, 96. 121 AMSA, 95. 122 AMSA, 113. 123 WILLIAMS, xviii. 124 BORGERSON, 68.

PART I

17

towards the future are equally high set. Indeed, some have expressed the hope that the NWP

will reveal itself as nothing less than a 'Polar Express'.125 However, it seems that the NWP

will not live up to its fabled reputation of 'maritime Philosophers Stone'126, leastways not in

the near future. All of the factors described throughout this first part have indeed led the

AMSA to the conclusion that the NWP is not expected to become a viable trans-Arctic route

through 2020.127 In other words, the aforementioned obstacles and uncertainties are

expected to diminish the likelihood of regular scheduled services128, so large-scale, regular

and reliable inter-oceanic commercial shipping does not seem viable in the NWP in the near-

term.129 Moreover, the Canadian authorities are not actively promoting such development,

which is in part related to legal controversies130 relating to the status of the Passage (see

Part II, Chapter 2). Therefore, it can be agreed with that "breathless predictions of the

imminent transform of global shipping patterns as a consequence of the opening up of Arctic

navigational routes appear to be misplaced, at least for the present".131 Indeed, a common

feature of both the NSR and the NWP, is that neither has so far become important in

international shipping132, although the former has been considered 'clearly the most

developed option'.133

However, the NWP will play its part in the foreseeable future, albeit rather as a local route

for the transport of goods and services in and out of the Arctic regions, that is to say for

(rather limited) regional trade purposes.134 Indeed, "destinational [that is to say 'intra-

Arctic'135] shipping is anticipated to increase in the Canadian Arctic, driven by increasing

demand for seasonal re-supply activity, expanding resource development and tourism".136

More specifically, the prospects of the AMSA include a definitive and substantial stimulation

of dry bulk carriage by resource development. Liquid bulk carriage on the other hand, is

expected to remain minimal, since most of liquid bulk transport out of the Beaufort Sea will

be carried out by pipeline. In the context of (re-)supply, some important but manageable

expansion in shipping activity is projected, in order to move the supplies and equipment

needed for marine exploration, and servicing growing populations. Also in the field of

tourism, modest yet unpredictable perspectives for cruise shipping are mentioned, whereas

the chances that container ships will be spotted soon in the waters of the NWP, are very

slim.137 Beyond these projections, the NWP is not expected to become a safe or reliable

transportation route in the near future.138

125 Ibid. 126 Cf. WILLIAMS, xviii. 127 AMSA, 114. 128 Ibid. 129 JENSEN and MOE, 4; SCHOFIELD and POTTS, "Across the Top", 475; Cf. WILLIAMS, 381. 130 JENSEN and MOE, 15. 131 SCHOFIELD and POTTS, "Across the Top", 482. 132 JENSEN and MOE, 6. 133 Ibid. 134 AMSA, 120; Cf. WILLIAMS, 382 and 385. 135 EU Commission, Summary Report, 5. 136 AMSA, 114. 137 AMSA , 112. 138 BROSNAN, I.G., LESCHINE, T.M. and MILES, E.L., "Cooperation or Conflict in a Changing Arctic?", Ocean Dev. & Int'l L. 2011, (173) 188 (hereinafter BROSNAN et al.).

PART I - CONCLUSION

18

CONCLUSION

re these projections sufficient to consider the legal research question described

above as relevant? In the author's opinion, this is the case. After all, in any case

navigation in high latitude waters in on the rise139, and according to the present and

projected trends the Arctic navigational window can be expected to progressively widen.

This will allow Arctic routes to become more viable over time.140 Also, this will gradually

increase external interest in the region, raising significant challenges for the Arctic coastal

states141 and requiring changes in oceans governance.142 Specifically with respect to the

NWP, all of this can be summarised as follows: "Although it is doubtful that whether the

passage will ever become the 'maritime Philosophers Stone' of earlier visionaries, as its

summer waters clear of ice they are likely to carry a weight and number of vessels undreamed

of only a few decades ago; and to regulate this traffic will be a task of the utmost complexity

and urgency for the international community".143

As such it has been pointed out that, regardless of the unpredictability of the specific

timeframe, the effects of this on the legal regime of navigation in the Arctic seem

considerable.144 Jurists will therefore be delighted at this abundance of legal questions and

challenges coming to the surface of the silent but deep-running Arctic waters.145 This forms

the basis for Part II and III of this paper, in which some of these questions (e.g. whether the

NWP can be considered a strait used for international navigation (Part II), and whether/to

what extent the UNCLOS has the capacity to allow for an orderly development of the NWP

region (Part III)) will be discussed.

139 SCHOFIELD and POTTS, "Across the Top", 482. 140 Ibid. 141 Ibid. 142 SCHOFIELD and POTTS, "Across the Top", 472. 143 WILLIAMS, 386. 144 FRANCKX, 409. 145 FRANCKX, 409-410.

A

PART II.

DEFINING THE LEGAL FRAMEWORK

APPLICABLE TO THE NORTHWEST

PASSAGE

La mer a toujours été battue par deux

grands vents contraires: le vent du

large, qui souffle vers la terre, est celui

de la liberté; le vent de la terre vers le

large est porteur des souverainetés. Le

droit de la mer s'est toujours trouvé

au cœur de leurs affrontements.

René-Jean Dupuy*

PART II, CHAPTER 1 - INTRODUCTION

20

CHAPTER 1. THE ARCTIC'S LEGAL REGIME: A MULTI-LAYERED FRAMEWORK

INTRODUCTION

hile the prospects for future marine activity in the NWP are rather modest and

impel to be careful of a false sense of optimism146, they do generate an abundance

of legal questions and challenges. Indeed, "[c]limate change poses considerable

challenges as it introduces a variable into how the law is to be applied and interpreted".147 As

such, the flexibility with which the law of the sea is able to respond to these changes, is

deemed its greatest contemporary test.148 Also, marine environmental security is expected

to become an even more pressing issue as a result of the impact from climate change.149

Therefore, even if "a practical prospect for investment and utilisation is a long way off, (...) this

does not mean that action must not be taken now".150 Such action would allow to channel the

developments in the NWP towards a so-called 'heavenly gate' and avoid a 'road to

perdition'. As such, in first instance the question rises what are the main features of the

present legal regime de lege lata .

When defining the legal framework with respect to the NWP in particular, a first necessity is

to define the framework with respect to the Arctic in general. After all, it would be artificial

to consider the NWP as an isolated region, taking into account the interpenetration of the

Arctic waters.151 Indeed, it should be well understood that "the [NWP] is linked directly to the

waters of the Arctic Ocean through the many channels of the northern half of the Archipelago,

as well as indirectly through the Beaufort Sea on the west side".152 Therefore, "it is obvious

that the pollution of any part of those waters is bound to affect the rest".153 As such, in the

following, the applicability of the law of the sea with respect to 'the Arctic', as defined below,

will be assessed. Next, the general, multi-layered contours of the existing legal framework

for Arctic maritime shipping are explored.

As mentioned above, this analysis will be made from the perspective of vessel-source

pollution, focussing on the impacts of maritime shipping activities on the marine

environment. In this respect, it is most interesting to note that "[t]he actual and potential

impacts of shipping on the marine environment and marine biodiversity in the Arctic marine

area are not fundamentally different from elsewhere in the world".154 As will become clear

throughout the analysis this Part seeks to provide, these impacts include (inter alia)

* Adopted from OXMAN, B.H., "The Territorial Temptation: A Siren Song at Sea", Am. J. Int'l L. 2006, (830) 830

(hereinafter OXMAN). 146 SCHOFIELD and POTTS, "Across the Top", 474, referring to WILSON et al., (1853) 1853. 147 ROTHWELL, D.R. and STEPHENS, T., International Law of the Sea, Oxford, Hart Publishing, 2010, 1 (hereinafter

ROTHWELL and STEPHENS). 148 ROTHWELL and STEPHENS (2010), 2. 149 ROTHWELL and STEPHENS (2010), 26. 150 EBINGER, C.K. and ZAMBETAKIS, E., "The Geopolitics of Arctic Melt", International Affairs 2009, (1215) 1231

(hereinafter EBINGER and ZAMBETAKIS). 151 Cf. PHARAND (2007), 55. 152 PHARAND (2007), 54. 153 Ibid. 154 MOLENAAR, E.J. and CORELL, R., Background Paper: Arctic Shipping, 2009, 4-5, available at: http://arctic-transform.org/docs.html, last accessed April 15, 2013. For more information on the Arctic Transform Project, see http://arctic-transform.org/, last accessed April 22, 2013.

W


21

shipping incidents. These may lead to accidental discharges of polluting substances (namely

cargo or fuel) or to physical impact on components of the marine ecosystem, such as large

marine mammals.155 Also, one could think of operational discharges and emissions, e.g.

cargo and fuel residues or (incineration) of garbage and sewage. Further, navigation impacts

such as noise pollution and the introduction of alien organisms (through ballast water

exchanges or attachment to vessel hulls), as well as anchoring impacts may be mentioned

here.156

In fact, the particularity of Arctic maritime shipping lies in the fact that the risk of some of

these impacts may be higher in certain parts of the Arctic than elsewhere in the world.157

The obvious explanation is to be found in the presence of icebergs and the lack of sufficient

experience in navigating in ice-covered areas. Also, this effect is combined with a lack of

accurate charts and the cold temperatures that may be detrimental to machinery and may

cause problems of icing, e.g. on the hull of the vessel.158 Further, a specific problem in the

Arctic context is the fact that, if an incident happens, the response will at best take a

relatively long time; with less luck, it may even be completely inadequate.159

Viewed from this perspective, the legal framework which is the subject of this paper is

composed of three layers, that is to say the international, regional and national levels. The

global component of the legal framework will prove to be the predominant one, both for the

purposes of this paper and in reality, by the very nature of international maritime shipping.

On the international level, special interest is paid to the United Nations Convention on the

Law of the Sea (hereinafter UNCLOS).160 In addition to the UNCLOS, a closer look is also

taken to the additional law of the sea instruments supplementing the UNCLOS on the

international level. In this respect, a strong emphasis is put on the international instruments

elaborated by the International Maritime Organisation (IMO). Further, attention is paid to

cooperation and agreements specifically addressing the Arctic region, granting a special

position to the Arctic Council. Also, the domestic component of the Arctic 'patchwork quilt'

is examined, especially from a Canadian point of view. This discussion will also include the

many ambiguities flowing from art. 234 UNCLOS on ice-covered areas, the so-called 'Arctic

Article'. Furthermore, the resulting legal structure is compared in a nutshell to the Antarctic

regime, in order to enable the reader to situate the Arctic's framework in its proper context.

155 MOLENAAR (2008), 294. 156 MOLENAAR (2008), 295. 157 Ibid. 158 Ibid. 159 Ibid. 160 United Nations Convention on the Law of the Sea of 10 December 1982, Montego Bay, United Nations Treaty Series, vol. 1833, 3 (hereinafter UNCLOS).

PART II, CHAPTER 1

22

1. THE ARCTIC AND THE LAW OF THE SEA

1.1 DEFINING THE ARCTIC REGION

The term 'Arctic' seems subject to some confusion among scholars, which is in some

writings identified as an interesting aspect of the current debate on Arctic governance.161

This is true in the sense that currently no universally accepted definition for the spatial

scope of the marine Arctic exists.162 As such, various definitions of this region have been put

forward in the doctrine, as well as in the relevant instruments, with varying scopes.163 For

example, the area defined by the Arctic Council's Arctic Monitoring and Assessment

Programme, the so-called 'AMAP area', is broader than the scope of application of the Polar

Shipping Guidelines developed by the International Maritime Organisation (IMO).164

Needless to say, one of the implications of a wide definition is that 'the Arctic region'

becomes more interesting in terms of economics and governance needs vary with

geography.165

As such, the region may be defined in terms of a climatic boundary, e.g. limited to the areas

north of where the 10°C isotherm is found in July. Others are more generous when defining

the Arctic, applying the Arctic Circle instead.166 Still other boundaries used to define the

Arctic are the tree line, the permafrost extent on land and the sea-ice extent on the ocean.167

However, the ACIA shows a distinct preference for a more 'flexible' boundary, "also

encompassing sub-[A]rctic areas integral to the functioning of the [A]rctic system".168 For the

purposes of this paper, the definition of the Arctic region should indeed be aligned to one of

the major philosophies reflected in the international doctrine with respect to the Arctic legal

framework de lege ferenda, namely an ecosystem-based approach.169 This stance can be

found in the international doctrine, where it states that for the purposes of a so-called

'Arctic Treaty' (cf. infra) "the Arctic's ecosystem and all its interdependent parts must be

encompassed".170 As such, it is indicated that using the Arctic Circle as a criterion for

purposes of simplicity would exclude vital areas.171 Instead, the ecosystem-based approach

focuses on an entire ecosystem rather than on an individual species, taking into account the

interdependence between species and their physical environments.172 It acknowledges the

interconnectedness between species and ecological factors throughout the entire region.173

161 HOEL, A.H., "Do We Need a New Legal Regime for the Arctic Ocean?", Int'l J. Marine & Coastal L. 2009, (443) 444 (hereinafter HOEL). 162 WWF International Arctic Programme, International Governance and the Regulation of the Marine Arctic, KOIVUROVA, T. and MOLENAAR, E., Oslo, February 8, 2010, available at: assets.panda.org/downloads/3in1_final.pdf, last accessed April 22, 2013, 15 (hereinafter KOIVUROVA and MOLENAAR (2010)); MOLENAAR (2008), 291. 163 MOLENAAR (2008), 291. 164 MOLENAAR (2008), 291-292. 165 HOEL, 444. 166 Ibid. 167 ACIA, 4. 168 Ibid. 169 MALLOY, B.A., "On Thin Ice: How a Binding Treaty Regime Can Save the Arctic", Hastings W.-Nw. J. Envt'l L. & Pol'y 2010, (471) 504 (hereinafter MALLOY). 170 Ibid. 171 Ibid. 172 MALLOY, 502. 173 With respect to fisheries, cf. MALLOY, 496.

PART II, CHAPTER 1

23

Moreover, with respect to the Canadian Arctic, the ecosystem-based management approach

has been promoted by the Government of Canada as well.174

In terms of political geography 'the Arctic' comprises in any case the land territories and

consequent maritime zones of the so-called 'Arctic Eight', i.e. Finland, Iceland, Sweden and

the five Arctic littoral states (having coastal frontage in the Arctic). The latter refers to

Canada, Denmark (Greenland), Norway, the Russian Federation and the US.175 The notion

'Arctic Eight' refers to the Arctic states, i.e. the state members of the Arctic Council.176

While it is generally accepted there are only five coastal states to the Arctic Ocean, a

universally accepted definition of the 'Arctic Ocean' doesn't exist either.177 In any case, while

being the smallest of the world's five oceans covering an area of app. 14.056 million km² and

a coastline of app. 45,389 km, its circular basin contains several notable bodies of water.178

1.2 THE LAW OF THE SE A AND ITS APPLICABILITY TO THE ARCTIC

The law of the sea ('le droit de la mer'; in Dutch 'internationaal zeerecht') is referred to as an

"extensive international legal framework" in the 2008 Ilulissat Declaration.179 It can be

conceived as a branch of international law, i.e. "the body of law regulating the rights and

duties of [s]tates and other actors, such as international organisations, recognised by

international law".180 The law of the sea may be described as "the branch of international law

that is concerned with all uses and resources of the sea".181 In other words, it is the body of

rules of law applying between the subjects of international law with respect to the use of the

sea and its natural resources.182

A basic yet crucial assessment in this respect is that the Arctic consists mostly of an ocean,

that is to say snow and ice-covered seas, surrounded by sovereign lands with varying

terrain.183 By way of comparison, the Antarctic on the other hand (cf. infra) can be seen as

the geographical inverse of the Arctic. Indeed, the Antarctic is basically a large ice-covered

land mass, surrounded by the Southern Ocean's sea ice.184 This finding is of paramount

importance in the sense that it leads to the conclusion that the law of the sea, more

particularly as reflected in the UNCLOS, applies to the Arctic. This view is reflected very

clearly in the literature:"[t]he Arctic is, of course, an ocean. As such, the United Nations Law of

174 Government of Canada, Statement on Canada's Arctic Foreign Policy: The International Dimension of Canada's Northern Strategy, 2010, available at: http://www.geopoliticsnorth.org/index.php?option=com_content&view=category&layout=blog&id=37&Itemid=105, last accessed April 15, 2013 (hereinafter Government of Canada, Statement). 175 HOEL, 444. 176 KOIVUROVA and MOLENAAR (2010), 15. 177 Ibid.; MOLENAAR (2008), 291. 178 JOYNER, C.C., "The Legal Regime for the Arctic Ocean", J. Transnat'l L. & Pol'y 2009, (195) 201 (hereinafter

JOYNER). 179 Arctic Ocean Conference, Ilulissat Declaration of 28 May 2008, available at the website of the Canadian Ministry for Foreign Affairs and International Trade: http://www.international.gc.ca/polar-polaire/northstrat-ilulissat-stratnord.aspx?lang=eng&view=d, last accessed April 21, 2013; KOIVUROVA and MOLENAAR (2010), 9. 180 EU Commission, Summary Report, 6; For a more elaborated definition encompassing the main features of this branch of law, see KACZOROWSKA, A., Public international law, Abingdon, Oxon (UK), Routledge, 2010, 2

(hereinafter KACZOROWSKA). 181 EU Commission, Summary Report, 6; Cf. SOMERS, 1. 182 SOMERS, 1. 183 MALLOY, 475. 184 Cf. ACIA, 4; MALLOY, 478.

PART II, CHAPTER 1

24

the Sea Convention (UNCLOS) fully applies".185 After all, "the current international law of the

sea applies to the marine environment of the entire globe; including therefore the entire

marine environment of the Arctic, however defined".186

2. THE LAW OF THE SEA AS REFLECTED IN THE UNCLOS AS THE

OVERARCHING LEGAL FRAMEWORK

2.1 THE UNCLOS: A DYNAMIC CONSTITUTI ON OF THE OCEANS

Of the utmost importance for the law of the sea, hence also for the purposes of this paper, is

the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which entered into

force in 1994.187 This is illustrated by the fact that it has been awarded the title of

'Constitution of the Oceans' by numerous authors.188 More particularly, it has been

remarked that "[o]ne of the distinguishing features of the [UNCLOS] is the attention it devotes

to environmental protection. It remains the strongest comprehensive environmental treaty

now in existence or likely to emerge for quite some time".189 Contributing to this special aura

is the fact that the UNCLOS enjoys a special status in international law, in that it has priority

over other international agreements (art. 311(1)-(2)).190 The primacy of the UNCLOS has

been emphasised repeatedly by numerous instruments191, as well as by contemporary state

practice.192 Also, the comprehensive nature of the Convention is evidenced by the fact that

165 states have presently become party to it.193 These include all Arctic littoral states194,

except for the US. Noteworthy in this respect is that Canada ratified the UNCLOS on 7

November 2003. Moreover, STEPHEN HARPER, then-Prime Minister of Canada, has encouraged

other states to accede to the Convention in 2006.195 The EU too has become a party to the

UNCLOS since 1 April 1998. Further on, the impact of the non-ratification of the UNCLOS by

the US will be briefly looked upon.

185 MOORE, J.N., “The UNCLOS Negotiations on Ice-Covered Areas” in NORDQUIST, M.H., HEIDAR, T.H. and MOORE, J.N. (eds.), Changes in the Arctic environment and the law of the sea, Boston, Martinus Nijhoff Publishers, 2010, (17)

17 (hereinafter MOORE). 186 KOIVUROVA and MOLENAAR (2010), 9. 187 ROTHWELL and STEPHENS (2010), 17. At the time of writing there are 157 signatories and 165 parties. The Convention was signed by Belgium on December, 5th, 1984 and ratified on November 13th, 1998, with a reservation; Cf. SOMERS, 11 et seq. 188 Cf. FARRENS, T.C., "Shrinking Ice, Growing Problems: Why We Must Act Now to Solve Emerging Problems Posed by an Ice-Free Arctic", Transnat'l L. & Contemp. Probs. 2010-2011, (655) 669 (hereinafter FARRENS); TREVES, T., "The Development of the Law of the Sea since the Adoption of the Un Convention on the Law of the Sea: Achievements and Challenges for the Future" in VIDAS, D. (ed.), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf, Leiden, Martinus Nijhoff Publishers, 2010, (41) 42 and 49 (hereinafter TREVES). 189 OXMAN, 843. 190 HOEL, 445; SKOURTOS, N. ST., "Legal Effects for Parties and Nonparties: The Impact of the Law of the Sea Convention" in NORDQUIST, M.H. et. al. (eds.), Entry into Force of the Law of the Sea Convention, Den Haag, Nijhoff, 1995, (187) 190 et seq. (hereinafter SKOURTOS). 191 Cf. TREVES, 51 et seq. 192 TREVES, 53. 193 For more information on the status of the Convention, see the website of the United Nations, Division for Ocean Affairs and the Law of the Sea: http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm#The%20United%20Nations%20Convention%20on%20the%20Law%20of%20the%20Sea, last accessed April 22, 2013; See art. 1(2)(1)

UNCLOS for a definition of the term 'state party'. 194 Cf. HOEL, 444. 195 KRASKA, J., “The Law of the Sea Convention and the Northwest Passage”, Int’l J. Marine & Coastal L. 2007, (257)

268 (hereinafter KRASKA (2007)).

PART II, CHAPTER 1

25

For the purposes of the following, it is of particular interest to keep in mind that the global

oceans regime as reflected in the UNCLOS, notwithstanding its comprehensiveness, at the

same time shows a sense for dynamic.196 After all, dynamic elements can be found in the two

additional agreements implementing the UNCLOS, namely the Part XI Deep-Sea Mining

Agreement197 and the Fish Stocks Agreement (UNFSA).198 Also, a certain dynamic is

introduced through the annual consultations held in preparation of the resolutions on the

oceans and fisheries in the United Nations General Assembly (UNGA). These consultations

are known as the UN Informal Consultation Process on Oceans and the Law of the Sea

(UNICPOLOS or ICP).199 Finally, the UNGA has mandated a number of initiatives in global

oceans governance.200

2.2 THE UNCLOS AND VESSEL-SOURCE POLLUTION THR OUGHOUT ITS MARITIME

ZONES

§ 1. THE UNCLOS AN D V ESSEL-SO URCE POL LUTION : GENE RAL

The international legal and policy framework respecting vessel-source pollution (including

but not limited to the UNCLOS) "balances the different interests of the international

community as a whole with the interests of states that have rights, obligations or jurisdiction in

their capacities as flag, coastal or port states or with respect to their natural and legal

persons".201 This distinction between coastal, flag and port states has to be seen in the light

of another common distinction of the UNCLOS, namely that between 'prescriptive

jurisdiction' and 'enforcement jurisdiction'.202 While the former refers to the state's

authority to prescribe (enact) rules and standards, the latter is concerned with the authority

to enforce the rules and standards it has prescribed.203

Within the UNCLOS, the most relevant provisions in this respect can be found in its Part XII,

entitled 'Protection and Preservation of the Marine Environment', which is applicable to all

sources of pollution.204 These provisions are predominantly aimed at coastal and flag states,

while port states are only explicitly referred to in art. 218 and are further only implicitly

dealt with.205 The prescriptive jurisdiction of coastal and flag states is in this respect linked

by rules referring to the notion of 'generally accepted international rules and standards',

commonly (and hereinafter) abbreviated GAIRAS.206 The latter refer to the technical rules

and standards laid down in instruments adopted by regulatory organisations, in particular

the International Maritime Organisation (hereinafter IMO).207

196 HOEL, 445. 197 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 of 28 July 1994, New York, United Nations Treaty Series, vol. 1836, 3; HOEL, 445. 198 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 August 1995, New York, United Treaty Series, vol. 2167, 3; HOEL, 445. 199 HOEL, 445-446. 200 HOEL, 446. 201 MOLENAAR (2008), 298. 202 Cf. with respect to protection and preservation of the marine environment: Part XII, Section 5, resp. Section 6 UNCLOS; EU Commission, Summary Report, 7; MOLENAAR (2008), 299. 203 EU Commission, Summary Report, 7. 204 MOLENAAR (2008), 303. 205 Ibid. 206 MOLENAAR (2008), 303-304. 207 MOLENAAR (2008), 304.

PART II, CHAPTER 1

26

Importantly, the provisions of Part XII are restricted by art. 236, in the sense that they do

not apply to warships or other vessels owned or operated by a state and used only on

government non-commercial service.208 However, even in these cases the states involved

need to ensure that such vessels act in a manner consistent with the provisions of the

UNCLOS, insofar as this is reasonable and practicable (cf. art. 236).209 Another important

restriction flows from the definition of the notion 'pollution of the marine environment' in

art. 1(1)(4), implicitly excluding anchoring and discharges of ballast water.210

As to content, it should be kept in mind that Part XII provides in first instance that all states,

including the coastal state, have the general obligation to protect and preserve the marine

environment (including the EEZ, cf. infra; art. 192). Also, when exercising their sovereign

rights to exploit their natural resources, all states have the obligation to do so in conformity

with this duty to protect and preserve the marine environment (art. 193). Further, it is

provided that states are required to take all necessary measures to prevent, reduce or

control pollution of the marine environment (cf. art. 194). In this respect, the UNCLOS

identifies six main causes of pollution of the world's oceanic environment211: pollution from

land-based sources, from and through the atmosphere, by dumping (art. 194(3)(a)); vessel-

source pollution (art. 194(3)(b)) and pollution from installations and devices used in

exploration or exploitation of the natural resources of the seabed or subsoil, as well as from

other installations and devices used in the marine environment (art.194(3)(c-d); see further

art. 207 et seq.).

§ 2. THE UNCLOS AN D I TS DIFFEREN T M A RI TIME Z ONES

A. THE GEN ER AL R ULE FRO M A CO AST AL ST AT E 'S PER SP ECTIV E

In this respect, it should be understood that the extent to which the coastal state can

exercise its respective rights (legislative, resp. enforcement control), is dependent upon the

respective maritime zone involved, as measured from the baseline.212 In principle this is a

'normal' baseline, i.e. following the low-water line along the coast (cf. art. 5).213 By 'low-

water line' is meant "the intersection of the plane of low water with the shore, or the line along

a coast or beach to which the sea recedes at low tide".214 In some instances however, the

UNCLOS allows the use of 'straight' baselines215, joining the appropriate points instead of

following the actual low-water line (cf. art. 7).216 As will be discussed in Chapter 2, the latter

is of particular importance with respect to the Canadian claims to the waters of the NWP.

Throughout these maritime zones the general rule is that the coastal state's prescriptive

jurisdiction over vessel-source pollution is optional. If exercised, it cannot be more stringent

than GAIRAS (save a few exceptions; arts. 21(2), 39(2) and 211(5)).217 The limited scope of

208 AMSA, 53. 209 Cf. ibid. 210 MOLENAAR (2008), 305. 211 Cf. FARRENS, 670; SOMERS, 131. 212 AMSA, 51; Cf. EU Commission, Summary Report, 7. 213 Cf. SOMERS, 20. 214 WALKER, G.K. and NOYES, J.E., "Definitions for the 1982 Law of the Sea Convention - Part II", Cal. W. Int'l L. J. 2002-2003, (191) 275 (hereinafter WALKER and NOYES). 215 Cf. SOMERS, 21. 216 Cf. EU Commission, Summary Report, 7. 217 MOLENAAR (2008), 304.

PART II, CHAPTER 1

27

this thesis does not allow for a systematic description of each of the maritime zones and the

concomitant panoply of rights and duties attached to them. Therefore, the following will

focus on the exceptions to this general rule regarding the coastal state's jurisdiction with

respect to vessel-source pollution. The figure below provides an oversight of the different

maritime zones and the concomitant rights under the UNCLOS.218

B. THE T ERRIT ORI AL S EA

B.1 GEN ERAL

Throughout its territorial sea, the coastal state is granted a broad prescriptive and

enforcement jurisdiction.219 Specifically with respect to vessel-source pollution, this implies

a deviation from the general rule mentioned above. Indeed, for the territorial sea unilateral

coastal state prescription which is more stringent than GAIRAS is allowed, provided such

rules and standards "shall not apply to the design, construction, manning or equipment of

foreign ships unless they are giving effect to generally accepted international rules and

standards" (art. 21(2)).220 The raison d'être of this is obviously to safeguard uniformity in the

regulation of international shipping.221 For example, more stringent norms relating to

discharge, emissions or navigation (for the latter, cf. art. 22) are allowed.222

Moreover, there is also a large measure of at-sea enforcement jurisdiction within the

territorial sea, subject only to the condition that 'clear grounds' to believe a violation of the

coastal state's laws and regulations has taken place, are required (art. 220(2)).223

Another exception, allowing for more stringent unilateral coastal state prescriptions

(compared to GAIRAS), would be art. 234, the only express provision in the UNCLOS

specifically addressing ice-covered areas.224 However, whether art. 234 grants powers only

within the EEZ or in the territorial sea as well, remains the subject of legal dispute (cf. infra).

218 Adopted from AMSA, 52. 219 EU Commission, Summary Report, 8. 220 MOLENAAR (2008), 306. 221 Ibid. 222 EU Commission, Summary Report, 12. 223 Ibid. 224 MOLENAAR (2008), 307.

PART II, CHAPTER 1

28

B.2 ST RAIT S US ED FO R INTE RN ATION AL NAVIGATION

This broad prescriptive and enforcement jurisdiction is however significantly constrained

with respect to territorial waters which constitute straits used for international navigation,

to which special rules apply.225 With respect to international straits not excluded from its

scope226, Part III of the Convention (arts. 34-45) provides a special regime according to the

type of strait.227 On the one hand there is a regime based on a right of innocent passage. It

can be found in art. 45, although this provision differs from the right provided by art. 17 in

the sense that it cannot be suspended (art. 45(2). On the other hand, art. 38 provides for a

right of transit passage, as defined in art. 38(2), which is also non-suspendable (art. 44).

In essence, under the regime of transit passage the coastal state is only allowed to adopt

domestic laws and regulations with respect to (four) well-defined subject matters (art.

42(1)(a-d)).228 Specifically with respect to the prevention, reduction and control of vessel-

source pollution, it should be noted that domestic laws and regulations are only allowed

insofar as they give effect to applicable international regulations (art. 42(1)(b)) in case of

transit passage. Such a restriction is not present in the case of a right of innocent passage

(art. 21(1)(a) j° art. 45(1)). Under the regime of transit passage, this basically means nothing

less than a ban on unilateral action relating to vessel-source pollution by the coastal

states.229

On the other hand, the coastal state nevertheless has a rather broad enforcement

jurisdiction in case of a violation of the laws and regulations referred to in art. (45)(1)(a-b),

by virtue of art. 233. Moreover, it has to be recalled that the coastal state is granted

extensive authority in ice-covered areas by virtue of art. 234.230 However, in this respect two

questions rise: (1) whether art. 234 prevails over the regime of transit passage as set out in

Part III of the Convention or not, and (2) how this provision should be interpreted if this

were the case.231 These issues are addressed further, in the context of the legal framework

on the national (Canadian) level.

In sum, the abovementioned general rule with respect to the coastal state's jurisdiction over

vessel-source pollution applies in marine areas governed by the regime of transit passage as

well. In other words, the exceptions discussed with respect to the territorial sea do not

apply in such areas.232

C. THE CON TIGUO US ZO NE

Further, within the contiguous zone (art. 33) the coastal state is on the one hand authorised

to exercise control to prevent infringements of its customs, fiscal, immigration or sanitary

laws and regulations which are in force within its territory or territorial sea (art.

225 EU Commission, Summary Report, 8; See generally with respect to navigational regimes through international straits: LÓPEZ MARTIN, A.G., International Straits: Concept, Classification, and Rules of Passage, New York, Springer, 2010, xxiii + 218 p. (hereinafter LÓPEZ MARTIN). 226 Cf. LÓPEZ MARTIN, 68-89. 227 SOMERS, 339. 228 Cf. PHARAND (2007), 46. 229 SOMERS, 343. 230 PHARAND (2007), 45. 231 PHARAND (2007), 46. 232 MOLENAAR (2008), 304.

PART II, CHAPTER 1

29

33(1)(a)).233 On the other hand, the coastal state is empowered to punish an infringement of

these laws and regulations committed within its territory or territorial sea (art. 33(1)(b)).234

D. THE EX CLUSI VE ECO NOMI C ZON E

Within the EEZ (cf. Part V UNCLOS) the coastal state is granted certain exclusive235

sovereign economic rights236 (art. 55(1)(a)).237 Further, the coastal state is granted a (non-

exclusive)238 jurisdiction complementary to these sovereign rights, relating to i.a. the

protection and preservation of the marine environment (cf. Part XII) (art. 55(1)(b)). In first

instance this means the coastal state's domestic legislation should in any case be in

accordance with the GAIRAS.239 Further, in this respect reference can also be made to the

general obligations of arts. 192, 193 and 194; art. 194(3)(b) dealing with vessel-source

pollution (cf. supra).

The latter provision, combined with art. 211, confirms the general rule mentioned above

with respect to the coastal state's jurisdiction over vessel-source pollution. Indeed, while

coastal states may adopt laws and regulations for the prevention, reduction and control of

pollution from vessels with respect to their EEZ, a restriction to this authority is imposed as

to safeguard the freedom of navigation.240 After all, the coastal state, when exercising this

prescriptive jurisdiction, is required to conform and give effect to GAIRAS (art. 211(5)).241 In

other words, the coastal state's jurisdiction remains optional and if exercised, cannot go

beyond GAIRAS.242

However, an exception to this general rule is laid down in art. 211(6), in case said rules and

standards prove to be inadequate. In this event, the coastal state is in certain cases allowed

to define a particular area in its EEZ and adopt special mandatory rules with respect to it,

which may be more stringent than GAIRAS.243 Nevertheless, as such measures require IMO

approval, this provision does not grant the coastal state a unilateral prescriptive jurisdiction,

as is the case in the territorial sea (cf. supra).

Further, a major exception to the general rule relating to vessel-source pollution in the EEZ,

is art. 234.244 This provision grants the coastal state the authority to adopt special measures

- i.e. laws and regulations - for the prevention, reduction and control of marine pollution

from vessels in ice-covered areas within the limits of its EEZ (art. 234).

The article envisages the situation in which ice is present most of the year, creating

exceptional hazards to navigation, and in which major harm or irreversible damage may be

caused to the ecological balance due to pollution of the marine environment.245 Such special

233 Cf. SOMERS, 111. 234 Cf. ibid. 235 SOMERS, 124. 236 SOMERS, 110. 237 Cf. EU Commission, Summary Report, 8. 238 SOMERS, 130. 239 SOMERS, 130. 240 SOMERS, 131. 241 Cf. ibid. 242 EU Commission, Summary Report, 12. 243 MOLENAAR (2008), 306; Cf. CLARK, 88. 244 Cf. CLARK, 88. 245 Cf. CLARK, 90; PHARAND (2007), 47.

PART II, CHAPTER 1

30

measures can be enforced against foreign vessels246 and may even be preventive in

nature.247 In this respect differing from what was mentioned above concerning the

territorial sea (art. 21(2)), these measures may apply to the design, construction, managing,

and equipment (CDEM) of the vessel as well.248 Note however that whether this equally

holds true with respect to the territorial sea (instead of only with respect to the EEZ) is

subject to legal controversy.249 In any case it is generally accepted that said measures, within

the limits of the EEZ250, may be more stringent than international rules and standards, which

is the case for Canada (cf. infra). This holds true insofar as these rules and standards don't

hamper navigation unnecessarily and provided they are based on the highest scientific

achievements or best scientific evidence.251 Also, there is no doubt about the fact that this

provision is not applicable to vessels entitled to sovereign immunity, such as warships (art.

236).252 Art. 234 is also dealt with further on, in the context of the national component of the

Arctic's legal framework (cf. infra).

On top of these (exclusive) economic sovereign rights (art. 56(1)(a)) and (non-exclusive)

complementary jurisdiction (art. 56(1)(b)(iiii), the coastal state has also been given other

complementary rights and duties (art. 56(1)(c)) in order to safeguard its own rights, as well

as the rights of all other states in the EEZ.253 These relate e.g. to the enforcement jurisdiction

of the coastal state.254 With respect to the latter, it should be noted that, as seen from a

vessel-source pollution point of view, the Convention imposes significant constraints. This is

done through "very specific and complex directions dependent on the quality of the evidence

that a violation has taken place and the seriousness of the actual or potential damage of the

violation" (art. 220).255 However, also in terms of enforcement jurisdiction, art. 234 provides

a major exception.

E. THE HI GH S EAS

The fundamental philosophy behind the high seas (cf. Part IV UNCLOS, more particularly art.

87) is that this zone cannot be subject to national sovereignty and belongs to the

international commons.256 Obviously, this implies that the coastal state's authority to

regulate foreign shipping does not extend to the high seas257, as this zone is characterised by

the freedom of navigation (art. 87(1)(a)). Moreover, taking into account the extreme

remoteness of the central Arctic Ocean, the potential for effective port state jurisdiction (cf.

infra) could be questioned.258 With respect to trans-Arctic shipping across the high seas of

the Arctic (the central Arctic Ocean), all of this has led the AMSA to the conclusion that "the

246 CLARK, 89; PHARAND (2007), 47. 247 Ibid. 248 CLARK, 89. 249 Cf. EU Commission, Summary Report, 19. 250 PHARAND (2007), 47. 251 CLARK, 89-90; PHARAND (2007), 47. 252 CLARK, 90. 253 SOMERS, 133. 254 Ibid. 255 EU Commission, Summary Report, 12. 256 SOMERS, 233; EU Commission, Summary Report, 8. 257 AMSA, 54. 258 ROTHWELL, D.R., "Polar Oceans Governance in the 21st Century", Ocean Yearbook, vol. 26, 2012, (343) 358

(hereinafter ROTHWELL (2012)).

PART II, CHAPTER 1

31

adequacy of international shipping standards for Arctic conditions and the need to provide

special protective measures for the Arctic high seas must be considered".259

F. FLAG AN D PO RT S TATE J URIS DI CTION AN D CONT RO L

With respect to the protection and preservation of the marine environment, the flag state

has been granted specific powers under Part XII of the Convention (see in particular art.

217). Its prescriptive jurisdiction is mandatory and must at least be as stringent as GAIRAS

(while it may be more stringent; art. 211(2)).260

The port state is granted broad inspection and enforcement powers for pollution violations

(illegal discharges) under the UNCLOS261, which is only explicitly referred to in art. 218. In

any case, as is illustrated by the ICJ's Nicaragua Case262, customary international law

acknowledges a port state's wide discretion in exercising jurisdiction over its ports.263

Further, the port state has a residual jurisdiction. This allows it to prescribe more stringent

standards than GAIRAS, e.g. by incorporating the IMO Polar Shipping Guidelines (cf. infra) in

its legislation.264 Furthermore, apart from rights, the port state also has obligations with

respect to foreign vessels in its ports and internal waters265 (cf. art. 219).266 Interestingly,

the AMSA reached the conclusion that "[p]ort [s]tate [c]ontrol could play an important role in

promoting maritime safety and marine environmental protection in the Arctic".267

2.3 IMPACT OF THE NON-RATIFICATION OF THE UNCLOS BY THE US

§ 1. THE NON-RATI FICATION F ROM AN INTE RN ATION AL , US AND CAN ADI AN

PE RS PECTI VE

As was already mentioned above, the US is at present not a party to the UNCLOS, even

though former Presidents BILL CLINTON and GEORGE W. BUSH supported US ratification of the

Convention during their presidencies.268 President BARAK OBAMA likewise declared that US

ratification would be advantageous to both the American economic and security interests,

and the protection of the oceans and their resources.269 Therefore, the fact that the US still

hasn't ratified the UNCLOS seems mainly due to the Senate Republicans.270

In any case, the fact that the US is not a party has been deemed a major defect of the

Convention by some. From an international point of view, some have indeed considered that

it is unlikely that the Convention will ever reach its full potential without participation of the

US, which is still considered an incredibly powerful player on the international stage.271

Viewed from the US perspective, some have contended that ratification of the Convention is

the best way to adequately safeguard the American interests in the Arctic. This holds true all

259 AMSA,, 54; Cf. ROTHWELL (2012), 358. 260 MOLENAAR (2008) 304. 261 AMSA, 54. 262 International Court of Justice (ICJ), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgement of June 27th, 1986, ICJ Reports 1986, 14. 263 MOLENAAR (2008), 308. 264 MOLENAAR (2008), 309. 265 EU Commission, Summary Report, 11. 266 AMSA, 54. 267 AMSA, 62. 268 FARRENS, 671. 269 Ibid. 270 Ibid. 271 Ibid.

PART II, CHAPTER 1

32

the more taking into account that the US has an extensive coastline and a continental shelf

with abundant oil and gas reserves.272 In any case, ratification of (or accession to) the treaty

would at least provide the opportunity to become directly involved in the interpretation and

implementation of the UNCLOS.273 On the Canadian side of the border, the feelings on the

continued non-ratification by the US are a mixture of ambivalence, appreciation and - above

all - disappointment.274 Canada seems disappointed - rightly so according to the author -

that the US Senate "has not yet reached the conclusion that ratification of the [UNCLOS] is

important not only for the United States itself in reaffirming its participation as a responsible

international citizen but also for the global community as a whole".275

In any case the fact is that the US - via Alaska - acts in the capacity of a coastal state with

respect to the NWP (together with Canada). Hence, the question rises what is the impact of

this continued non-ratification on the analysis of the legal status of the NWP.

§ 2. THE ROLE OF THE UNCLOS IN TH E US CON TE X T TH RO UG H CUS TOM ARY

INTE RN ATION AL L AW

The UNCLOS led to a transformation of the law of the sea from a customary law-based

branch of international law into a treaty-based law.276 On the one hand, this did not have the

effect of exhausting the role of customary international law in the present-day law of the

sea.277 Obviously this holds true for non-parties, which can indeed question the

correspondence to customary law of specific rules of the UNCLOS, in particular the most

detailed ones, e.g. setting out time limits.278 Also, this stance clearly holds true for parties

with respect to subjects not covered by the UNCLOS.279

On the other hand, a rebuttable presumption that the rules contained in the UNCLOS itself

correspond to customary law, seems to be recognised in the literature.280 This point of view

has been described very clearly where it was stated that "[w]ith the obvious exception of

rules concerning the establishment and functioning of institutions, today we can say that the

rules set out in the [UNCLOS] correspond to customary international law, unless (as regards

specific provisions) the contrary is proven".281 Indeed, the author adheres to the view that a

corpus of rules binding more than three quarters of the existing states cannot be ignored as

a dominant element of today's international practice.282

272 KOLCZ-RYAN, M., "An Arctic Race: How the United States' Failure to Ratify the Law of the Sea Convention Could Adversely Affect its Interests in the Arctic", U. Dayton L. Rev. 2009-2010, (149) 173; Cf. READ, N., "Claiming the Strait: How U.S. Accession to the United Nations Law of the Sea Convention will Impact the Dispute between Canada and the United States over the Northwest Passage", Temp. Int'l & Comp. L. J. 2007, (413) 426 (hereinafter

READ). 273 VAN DYKE, J.M., "U.S. Accession to the Law of the Sea Convention", Ocean Yearbook, vol. 22, 2008, (47) 59. 274 MCDORMAN, T.L., "A Canadian Perspective on the Continued Non-Ratification of the Convention on the Law of the Sea by the United States", Can. Y.B. Int'l L. 2005, 393-417 (hereinafter MCDORMAN (2005)). 275 MCDORMAN (2005), 416. 276 ROTHWELL and STEPHENS (2010), 1. 277 TREVES, 42. 278 Ibid. 279 Ibid. 280 TREVES, 43. 281 TREVES, 42. 282 Ibid.

PART II, CHAPTER 1

33

Admittedly, according to art. 34 of the 1969 Vienna Convention on the Law of Treaties283, a

treaty does not create either obligations or rights for a third state without its consent.284

This general principle is also expressed by the Latin maxim 'pacta tertiis nec nocent nec

prosunt'285 and is undoubtedly thought of as reflective of customary international law.286

The latter holds true even with respect to a so-called 'law-making treaty'. The latter has

been defined as "an instrument through which a substantial number of states declare their

understanding of what a particular rule of law is; by which new general rules for the future

conduct of the ratifying or adhering [s]tates are laid down; by which some existing customary

or conventional rule of law is abolished, modified, or codified; or by which some new

international agency is created".287 Obviously, the UNCLOS can be considered to be such a

treaty.288

Nevertheless, generally speaking it is possible for non-parties, by their manifest conduct,

hence consent, to accept the provisions of a multilateral treaty as representing or codifying a

rule of international law.289 Such has been the case with respect to the UNCLOS, not only

generally speaking, but also considering the position the US has taken towards the

Convention. Indeed, it has been stated that even non-parties, the US in particular, often rely

on the UNCLOS.290 This is supported by state practice, giving evidence of a constant practice

of legal advisers of all states (whether parties or not) to rely on the UNCLOS whenever an

issue involving the law of the sea surfaces.291

Of course, this has to be nuanced in the sense that the US has from the beginning expressed

significant reservations about the deep-sea bed mining regime set forth in Part XI of the

Convention.292 For that matter, the US opposition to this regime, supported by other

industrialised countries293, has been the main cause for the fact that it took the UNCLOS not

less than twelve years to obtain the required sixty ratifications/accessions to enter into

force.294 However, the provisions which are relevant for the legal debate which is the subject

of Chapter 2 are the coastal and navigation regimes provided by the UNCLOS as briefly

described above. These have not only been recognised by the US, but are also reflected in US

Federal and State legislation.295 More particularly, the US has been considered to be bound

by these provisions through historical compliance, the fact that it did adopt the 1958

Convention on the Territorial Sea and the Contiguous Zone296, and several presidential

283 Vienna Convention on the Law of Treaties of 23 May 1969, Vienna, United Nations Treaty Series, vol. 1155, 331. 284 Cf. SKOURTOS, 194. 285 KACZOROWSKA, 117; SKOURTOS, 194. 286 Ibid. 287 SKOURTOS, 195. 288 Ibid. 289 KACZOROWSKA, 118; KILLAS, M., “The Legality of Canada's Claims to the Waters of its Arctic Archipelago”, Ottawa L. Rev. 1987, (95) 107 (hereinafter KILLAS). 290 TREVES, 42. 291 Ibid. 292 ROTHWELL and STEPHENS (2010), 14. 293 READ, 423. 294 SOMERS, 221. 295 EU Commission, Summary Report, 16. 296 Convention on the Territorial Sea and the Contiguous Zone of 29 April 1958, Geneva, United Nations Treaty Series, vol. 516, 205.

PART II, CHAPTER 1

34

proclamations issued under the REAGAN and CLINTON administrations.297 For example, the

Presidential Proclamation issued under the presidency of REAGAN considered it "a well-

known fact that the United States take[s] the view that, except for its Part XI, the [UNCLOS] is

already part of customary international law and in that way creates rights and obligations for

the United States".298 The case law of the US Courts has used provisions of the UNCLOS as

well when solving disputes with maritime or ocean aspects and considers the Convention as

codifying patterns of state practice accepted as law.299 As such, the US can be said to pursue

its oceans policy according to the UNCLOS.300

However, the dispute settlement mechanism set out in Part XV can in any case not be

considered as customary law, due to its procedural nature.301 For that matter, the non-

applicability of the dispute settlement mechanism has been considered a critical gap in the

Arctic's legal framework.302 Moreover, it should also be noted that some US regulations that

may apply to foreign vessels still have an inconsistent or unclear extension of jurisdiction at

sea.303

In the end it has been contended by scholars that whether or not the US ratifies the UNCLOS,

this would, practically speaking, change little in the dispute over the status of the NWP (see

Chapter 2). Substantiating this stance, the view has been expressed that "legal arguments

supporting each party's claim (...) are neither bolstered nor weakened by the Convention in a

way that allows for a definitive solution".304 As will become clear in the next chapter, this

conclusion seems correct, at least under the present-day circumstances.

3. OTHER LAW OF THE SEA INSTRUMENTS SUPPLEME NTING THE UNCLOS

3.1 GENERAL

§ 1. A RE GIME BASED ON THRE E LE VELS

As such, it is the framework defined by the UNCLOS that constitutes the overarching legal

framework with respect to the Arctic.305 Unfortunately however, the situation is far more

complex than that. The legal regime for Arctic marine shipping is of an intricate nature,

displaying a structure composed of multiple layers. As such, a number of sector-specific

regimes supplement the UNCLOS on the global and regional level.306 True, the UNCLOS only

contains one specific provision explicitly dealing with the Arctic (art. 234). However, it has

been stated in the literature that the Convention nevertheless offers a regime for the

regulation of myriad law of the sea issues that are presently confronting the Arctic. Yet, the

literature has also pointed out that what the UNCLOS does not adequately regulate may be

more important than what it does regulate.307 Needless to say this insight will prove to be of

297 HOLMES, S., “Breaking the Ice: Emerging Legal Issues in Arctic Sovereignty”, Chi. J. Int’l L. 2008-2009, (323)

333-334. 298 MOLENAAR (2008), 297-298. 299 READ, 426. 300 SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries", 44. 301 MOLENAAR (2008), 298. 302 Ibid. 303 EU Commission, Summary Report, 16. 304 READ, 443. 305 Cf. AMSA, 51. 306 EU Commission, Summary Report, 17; HOEL, 446. 307 ROTHWELL (2012), 359.

PART II, CHAPTER 1

35

paramount importance when analysing proposals for the strengthening or reform of the

current regime (Part III).

These 'layers' refer to the international ('global') component, which is supplemented by a

national component, i.e. the domestic laws and regulations of the Arctic states.308 This

domestic component is mentioned here for the sake of coherence, but will be briefly

discussed later on. In between, there is a regional component as well, composed of various

regional organisations and instruments. This has led some authors to describe the Arctic's

regime, in somewhat less flattering words, as a 'hodgepodge'.309

§ 2. THE IN TE RN ATIO NAL LEV EL

Within the international legal regime of (Arctic) maritime shipping, i.e. the 'global'

component, on the one hand the UNCLOS functions as the centrepiece. On the other hand it

is supplemented by a range of binding international agreements of global (and regional)

application, as well as non-legally binding instruments.310 A typical example of the latter are

codes of conduct, such as the FAO global Code of Conduct for Responsible Fisheries.311 This

is supported by the fact that the UNCLOS accords a key-role to the so-called 'competent

international organisations' as to its implementation and progressive development. Indeed,

the UNCLOS is in many ways deemed a framework convention.312 The same can be said for

its two implementation agreements, namely the Part XI Deep-Sea Mining Agreement and the

Fish Stocks Agreement (UNFSA). This holds true in the sense that the Convention relies on

implementation by means of concrete regulation at the global and regional levels. This is

realised through competent or appropriate international organisations.313 An example of

this would be the IMO with respect to the regulation of merchant shipping314, in the context

of e.g. art. 22(3)(a) UNCLOS.

Indeed, the regulation of international maritime shipping, as well as the regulation of vessel-

source pollution, have primarily been established by global bodies. In particular the London-

based International Maritime Organisation (IMO)315 has truly been and continues to be of

paramount importance (cf. infra). More specifically, it has played this role through

substantive standards and requirements incorporated in its binding and non-binding

instruments. Besides the IMO, also the International Association of Classification Societies

(IACS) can be mentioned as a relevant international body, especially because of its Unified

Requirements concerning Polar Class.316 Other international treaties with a high relevance

for the Arctic include the 1992 Convention on Biological Diversity (CBD).317 Another

308 Cf. EU Commission, Summary Report, 17. 309 MALLOY, 481. 310 EU Commission, Summary Report, 6. 311 HOEL, 446. 312 KOIVUROVA and MOLENAAR (2010), 9. 313 Ibid. 314 EU Commission, Summary Report, 6. 315 MOLENAAR (2008), 300-301. 316 International Association of Classification Societies (IACS), Requirements for Polar Class, 2007, available at: http://www.iacs.org.uk/publications/publications.aspx?pageid=4&sectionid=3, last accessed April 22, 2013; MOLENAAR (2008), 302; EU Commission, Summary Report, 13. 317 Convention on Biological Diversity of 5 June 1992, Rio de Janeiro, United Nations Treaty Series, vol. 1760, 79; ROTHWELL (2012), 354.

PART II, CHAPTER 1

36

example is the 1992 United Nations Framework Convention on Climate Change (UNFCCC)318

(cf. infra, with respect to the Antarctic).319 After all, it should be recalled that climate change

can be considered (among) the most important driver(s) for changes in the Arctic.320

Obviously, this global component of the Arctic's legal framework is the predominant one,

not only for the purposes of this paper (having the law of the sea as its legal frame of

reference), but ex sua natura. Indeed, one could hardly deny the global nature of

international shipping and the international community's interest in uniform regulation.321

This is easy to understand, taking into account that app. 90% of the world's trade is

transported by ships. As such, maritime shipping is probably the most international of all

global industries.322 This led to the logical conclusion that "[c]learly, there has to be a

common approach, so that ships can ply their trade around the world and countries receiving

foreign ships can be confident that, in so doing, they do not place their own safety, security and

environmental integrity at an unreasonable risk".323 For that matter, the international

community's interest in uniform regulation is safeguarded in turn by the UNCLOS, by only

allowing unilateral coastal state prescriptions in a few situations (cf. supra).324

§ 3. THE REGI ON AL LE VEL

In addition to this global component and domestic laws and regulations, the legal

framework for Arctic maritime shipping and vessel-source pollution is complemented by

various regional organisations and their instruments.325 As such, the regional level of

governance has been called an arena for more concrete and policy-oriented activity326,

regional regulation thus adding a certain value. On the other hand, such regional regulation

should not undermine the global primacy of the IMO in the regulation of shipping within the

confines of its mandate.327 Moreover, the merits of a regional Arctic regime have been

questioned, considering the main driver for the present developments in the Arctic is in fact

climate change, a phenomenon with a global impact.328

In any case of particular interest among these regional organisations are the OSPAR

Commission, and above all, the Arctic Council.329 While the Arctic Council will be discussed

more in detail further on, we will suffice with a brief word on the OSPAR Commission

here.330 The latter was established under the so-called 1992 OSPAR Convention.331 As an

318 United Nations Framework Convention on Climate Change of 9 May 1992, New York, United Nations Treaty Series, vol. 1771, 107; ROTHWELL (2012), 355. 319 HOEL, 446. 320 HOEL, 448. 321 EU Commission, Summary Report, 17; HARRISON, J., Making the Law of the Sea: A Study in the Development of International Law, New York, Cambridge University Press, 2011, 154 (hereinafter HARRISON). 322 HARRISON, 154. 323 MITROPOULOS, E.E., "IMO: 60 Years in the Service of Shipping" in Martinez Gutierrez, N.A. (ed.), Serving the Rule of International Maritime Law: Essays in Honour of Professor David Joseph Attard, New York, Routledge, 2010, 7-8. 324 MOLENAAR (2008), 300-301. 325 EU Commission, Summary Report, 10. 326 HOEL, 446. 327 EU Commission, Summary Report, 17. 328 HOEL, 449. 329 EU Commission, Summary Report, 10; HOEL, 447. 330 More information can be found on the website of the OSPAR Commission: http://www.ospar.org/, last accessed April 15, 2013.

PART II, CHAPTER 1

37

entity, it is relevant to the Arctic context as the 'OSPAR Maritime Area' roughly overlaps

with the Atlantic sector of the Arctic marine area (although it extends further south).332

Indeed, the fact that the competence for the regulation of shipping lies in first instance with

the IMO has not prevented the OSPAR Commission from taking supplementary action.333

More particularly, it has done so by adopting regional voluntary guidelines as an interim

measure while awaiting the entry into force of the 2004 BWM Convention.334

Other relevant regional organisations include the Port State Control Committees set up

under the Paris and Tokyo MOUs.335 While there are numerous other regional aspects,

including bilateral agreements between the Arctic states, the scope of this paper does not

allow for further elaboration on this. For example, one could think of the 1988 bilateral

agreement between Canada and the US (the famous 'Agreement to Disagree'336) and the

Canada-US Joint Marine Contingency Plan.337

§ 4. THE CON CL USION REFLECTE D I N THE 2008 IL ULISS AT DE CL ARATION

Most interestingly, these main features of the Arctic's regime as described above were also

reflected in the 2008 Ilulissat Declaration. This is a statement of cooperative policy that

resulted from the Arctic Ocean Conference initiated by Denmark in May 2008.338 The thread

running through this declaration is indeed the assumption that the UNCLOS, along with the

IMO (international component) and the Arctic Council (regional component), form the core

features of the regime that governs the Arctic. However, this only holds true upon the

understanding that the five Arctic coastal states retain primary responsibility for managing

activities in the Arctic (domestic component).339 With respect to the latter, the Declaration

asserts that the legal framework - of which the UNCLOS is recognised as a central element -

is best implemented through national action by these five coastal states.340 In the light of

Part III of this paper, it cannot be ignored that the Ilulissat Declaration denies the need for

the creation of a new comprehensive legal regime for the Arctic - a conclusion which has

met severe opposition in the international literature by several commentators (cf. infra).341

331 Convention for the Protection of the Marine Environment of the North-East Atlantic of 22 September 1992, Paris, United Nations Treaty Series, vol. 2354, 67; Cf. KOIVUROVA and MOLENAAR (2010), 19; SOMERS, 411. 332 KOIVUROVA and MOLENAAR (2010), 19. 333 MOLENAAR (2008), 316. 334 MOLENAAR (2008), 316. 335 MOLENAAR (2008), 302. 336 Agreement On Arctic Cooperation of 11 January 1988, U.S.-Can., International Legal Materials, vol. 28, 142; MCDORMAN, T.L., "The Northwest Passage: International Law, Politics and Cooperation" in NORDQUIST, M.H., MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in the Arctic Environment and the Law of the Sea, Boston, Martinus Nijhoff Publishers, 2010, (227) 229 (hereinafter MCDORMAN (2010)). 337 MOLENAAR (2008), 317. 338 JOYNER, 217. 339 JOYNER, 218. 340 Ibid. 341 Ibid.

PART II, CHAPTER 1

38

3.2 THE INTERNATIONAL REGULA TION OF (ARCTIC) MARITIME SHIPPING

THROUGH THE IMO

§ 1. GENE RAL

A. (NON-)MAN DATO RY INST RUMEN T S ON T HE BASI S O F A THR EE-FO LD MAN DAT E

The International Maritime Organisation (IMO) functions as one of the principal and in some

cases exclusive competent international organisations in the sense of the UNCLOS.342 It has a

three-fold mandate, namely the promotion of "safe [maritime safety], secure [maritime

security], environmentally sound, efficient and sustainable shipping through cooperation

[environmental protection]".343 Maritime safety and security are strictly speaking beyond

the scope of this paper. However, sometimes standards and requirements relating to in

particular maritime safety may have a significant subsidiary purpose of pollution

prevention, in which case they should also be taken into account.344

On the basis of its mandate with respect to environmental protection (and maritime safety),

the IMO has established a significant body of substantive standards and requirements.

Among these are a range of legally binding conventions (described below), i.e. so-called

'hard law', e.g. MARPOL 73/78. Also, it has established numerous non-legally binding

instruments, i.e. so-called 'soft law', e.g. the IMO General Provisions on Ships' Routeing.

B. IN STR UMENT S ADDR ES SIN G T HE ARCTI C

Remarkably, of all these mandatory and non-mandatory instruments, there are currently

only two IMO instruments that are specifically tailored to the Arctic. These are the 2002

Arctic Shipping Guidelines345 and the 2009 Polar Shipping Guidelines346, both being non-

mandatory.347 Moreover, the uncertainty of the extent to which the Arctic Shipping

Guidelines are complied with in practice (by states, vessel owners, carriers and their crew),

has been deemed problematic.348

However, many of the IMO safety conventions, while not specific to Arctic shipping, affect

ships in Arctic waters as well.349 Such conventions are potentially also relevant from an

environmental protection point of view, e.g. the requirement of a double hull for tankers.

Also, it should be noted that the IMO's Sub-Committee on Design and Equipment has been

tasked with the development of a mandatory International Code for Safety of Ships

Operating in Polar Waters (the fabled 'Polar Code') and that this development is currently

ongoing.350 Nevertheless, the lack of a regional approach specifically aimed at ensuring

compliance with the applicable international rules and standards and national laws and

342 HARRISON, 155. 343 For more information on the IMO's mandate, see its website: http://www.imo.org/ourwork/technicalcooperation/itcp/Pages/Default.aspx, last accessed April 21, 2013; MOLENAAR (2008), 291; EU Commission, Summary Report, 17. 344 MOLENAAR (2008), 291; EU Commission, Summary Report, 17. 345 IMO, Maritime Safety Committee and Marine Environmental Protection Committee, Guidelines for Ships Operating in Arctic Ice-Covered Waters, IMO MSC/Circ. 1056, MEPC/Circ. 399 (December 23, 2002). 346 IMO, Assembly, Guidelines for Ships Operating in Polar Waters, IMO A.1024(26) (December 2, 2009). 347 EU Commission, Summary Report, 13. 348 Ibid. 349 AMSA, 55. 350 MOLENAAR (2008), 301-302; ROTHWELL (2012), 357-358.

PART II, CHAPTER 1

39

regulations has been criticised. Indeed, no such approach exists within the context of the

Arctic states, nor by any other alternative group of states.351

Within this proliferation of instruments, with respect to vessel-source pollution certain

categories of standards and requirements can be distinguished according to the literature,

namely352: discharge and emission standards; construction, design, equipment and manning

(CDEM) standards; navigation standards (including ships' routeing measures, such as the

abovementioned traffic separation schemes353; Ship Reporting Systems (SRSs) and Vessel

Traffic Services (VTS)); contingency planning and preparedness standards; and liability and

insurance requirements.

Specifically with respect to Arctic maritime shipping, no special IMO discharge, emission or

ballast water exchange standards exist, nor are there any legally binding Arctic CDEM

standards. Further, there is no comprehensive mandatory or voluntary IMO Ships' Routeing

System (SRS) for the Arctic marine area or a large part of it. Moreover, a shortcoming of the

existing regional agreements on monitoring, contingency planning and preparedness for

pollution incidents is that these do not cover the entire Arctic marine area and that not all

Arctic coastal states are party to these agreements.354 While previously also the lack of an

agreement on Search and Rescue (SAR) with respect to the Arctic had been lamented, such

an agreement was created in 2011 under the auspices of the Arctic Council (cf. infra).

These categories mentioned above will provide the structure for the following brief

overview355, although it should be noted that the entire panoply of types of standards or

requirements developed within the IMO or applied by individual states is not captured by

this categorisation356 Indeed, numerous other relevant elements surface when taking a

closer look at the subject357, but the scope of this paper does not allow to further elaborate

on this.

§ 2. DIS CH ARGE AND E MISSION STAN D ARDS

No instruments specifically addressing the Arctic exist with respect to discharge and

emission standards. However, two (and only two) legally binding conventions, applicable in

some Arctic waters, have been established under the auspices of the IMO containing such

standards.358 These are MARPOL 73/78359 and the 2004 Ballast Water (or BWM)

Convention.360

Further, Annex I to MARPOL is important for the protection of the Arctic marine

environment, containing discharge standards for oil.361 Also, Annexes II, IV, V and VI contain

351 EU Commission, Summary Report, 13. 352 The following enumeration is adopted from: MOLENAAR (2008), 300; EU Commission, Summary Report, 10. 353 MOLENAAR (2008), 311. 354 EU Commission, Summary Report, 13. 355 This structure is adapted from: MOLENAAR (2008). 356 MOLENAAR (2008), 300. 357 MOLENAAR (2008), 313-314. 358 MOLENAAR (2008), 309; Cf. AMSA, 59. 359 Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, United Nations Treaty Series, vol. 1340, 61; SOMERS, 378 et seq. 360 International Convention for the Control and Management of Ships' Ballast Water and Sediments of 13 February 2004, London, IMO Doc. BWM/CONF/36; MOLENAAR (2008), 309. 361 AMSA, 59-60.

PART II, CHAPTER 1

40

discharge standards with respect to noxious liquid substances, resp. sewage, garbage, and

air emissions.362

Also noteworthy in this respect is the possibility for the IMO to designate 'special areas'

where the discharge standards of Annexes I, II and V are not sufficient for protecting

sensitive areas of the marine environment. This can be done according to the conditions as

set out in the 2002 IMO Guidelines for the Designation of Special Areas under MARPOL

73/78 and Guidelines for the Identification and Designation of Particularly Sensitive

Areas.363 While this has been the case for the Southern Ocean under all three Annexes

(making the analogy with the Antarctic), no part of the Arctic is listed as a 'special area'.364

The latter has raised questions about the adequacy of MARPOL and the regime for its

implementation with respect to the Arctic.365

For that matter, it is interesting to note that marine areas can also receive special protection

by the IMO through their designation as a 'Particularly Sensitive Sea Area' (PSSA). This

system is elaborated under the IMO Guidelines for the Identification and Designation of

Particularly Sensitive Areas.366 Moreover, protective measures can be obtained under the

SOLAS Convention (cf. infra) without necessarily involving the designation of a PSSA.367

The 2004 BWM Convention on the other hand, has not entered into force yet at present This

led the OSPAR Commission to take interim measures, as mentioned above. This Convention,

implementing art. 196(1) UNCLOS368, deals with an additional vessel-source environmental

concern, namely ballast water. This notion refers to the sea water ships take up in order to

maintain stability and structural integrity. This water may potentially introduce pathogens

and alien living organisms when discharged, thus disrupting the local marine species and

ecosystems.369 Looking ahead to the discussion respecting the regional component of the

Arctic regime, it seems noteworthy that the BWM Convention encourages regional

agreements and cooperation (art.13).370 With respect to the Antarctic, this led to the non-

mandatory 2007 IMO Guidelines for Ballast Water Exchange in the Antarctic Treaty Area.371

§ 3.CDEM S TAND ARD S

Standards on construction, design, equipment and manning (CDEM) can particularly be

found in the 1974 SOLAS, complementing the MARPOL.372 This is also the case for the 1978

STCW.373 Within the context of SOLAS 74, Chapter VII regulates the carriage and care of

362 AMSA, 60; MOLENAAR (2008), 309. 363 IMO, Assembly, Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Areas, IMO A.927(22) (November 29, 2001); AMSA, 60. 364 MOLENAAR (2008), 310; ROTHWELL (2012), 358. 365 ROTHWELL (2012), 358. 366 AMSA, 60; See further KRASKA, J., "Particularly Sensitive Areas and the Law of the Sea" in NORDQUIST, M.H., KOH, T.T.B. and MOORE, J.N. (eds.), Freedom of seas, passage rights, and the 1982 Law of the Sea Convention, Boston, Martinus Nijhoff Publishers, 2009, 511-571. 367 AMSA, 61. 368 SOMERS, 384-385. 369 AMSA, 62. 370 AMSA, 62; SOMERS, 384-385. 371 AMSA, 62; IMO, Marine Environmental Protection Committee, Guidelines for Ballast Water Exchange in the Antarctic Treaty Area, IMO Doc. MEPC.163(56) (July 13, 2007). 372 International Convention for the Safety of Life at Sea of 1 November 1974, London, United Nations Treaty Series, vol. 1184, 277; SOMERS, 384. 373International Convention on Standards of Training, Certification and Watchkeeping for Seafarers of 7 July 1978, London, United Nations Treaty Series, vol. 1361, 75; MOLENAAR (2008), 310.

PART II, CHAPTER 1

41

dangerous goods. For this purpose, the International Maritime Dangerous Goods (IMDG)

Code (the so-called 'Orange Book') was established.374 However, the AMSA concluded that

the IMDG Code may need to be reviewed for the purpose of identifying any dangerous goods

that may be affected by extremely low temperature during transportation in the Arctic.375

Likewise, Chapter VII regulates the carriage of liquefied natural gas (LNG) through the so-

called International Gas Carrier Code.376 The 1994 International Safety Management Code

(ISM Code) has been adopted under SOLAS as well (Chapter IX) and is applicable to ships

operating in Arctic waters, i.a. in the field of pollution prevention.377 However, this

instrument too does not specifically deal with the Arctic marine area.378

Further, Annex I to the MARPOL 73/78 contains the fabulous double-hull standard that saw

the light of day as a result of the 1989 Exxon Valdez disaster.379 Moreover, the 2002 IMO

Arctic Shipping Guidelines (only) contain CDEM standards380, some of which explicitly aim

at the prevention or control of vessel-source pollution. These Guidelines also refer to the

2007 IACS Unified Requirements concerning Polar Class.381 However, these Guidelines,

intended as a supplement to other instruments (instead of as a stand-alone instrument)382,

have been criticised for various deficiencies.383 On the other hand, the 2009 IMO Polar

Shipping Guidelines, again containing mostly CDEM standards, are in general more

elaborate and extensive384.

Finally, some have contended that certain requirements, while not directly relating to CDEM,

should be regarded as or treated analogous to CDEM standards.385 Such would be the case

for some requirements of Annex VI to MARPOL 73/78, the BWM Convention and the 2001

Anti-Fouling Convention (also known as the TBT Convention, named after 'tributyltin', a

toxic compound of certain types of paint used on ships).386

§ 4. NAVI GATI ON S TANDARDS

As mentioned above, navigation standards include Ships' Routeing Measures, Ship

Reporting Systems (SRSs) and Vessel Traffic Services (VTS; e.g. 'NORDREG' with respect to

the Canadian Arctic, cf. infra).387 In this respect COLREG 72 may be mentioned388. However,

while applicable to the Arctic, it doesn't contain rules specifically addressing ships

374 AMSA, 55. 375 Ibid. 376 Ibid. 377 AMSA, 56. 378 Ibid. 379 MOLENAAR (2008), 310. 380 MOLENAAR (2008), 311. 381 Ibid.; JENSEN, Ø., "Arctic Shipping Guidelines: towards a Legal Regime for Navigation Safety and Environmental Protection?", Polar Record 2008, (107) 110 (hereinafter JENSEN). 382 JENSEN, 109. 383 AMSA, 57. 384 MOLENAAR (2008), 311. 385 MOLENAAR (2008), 310. 386 International Convention on the Control of Harmful Anti-Fouling Systems on Ships of 5 October 2001, London, IMO Doc. AFS/CONF/26; MOLENAAR (2008), 310-311; SOMERS, 385. 387 AMSA, 66; Cf. MOLENAAR (2008), 311. 388 AMSA, 57; MOLENAAR (2008), 311; Convention on the International Regulations for Preventing Collisions at Sea of 20 October 1972, London, United Nations Treaty Series, vol. 1050, 17.

PART II, CHAPTER 1

42

navigating in ice-covered waters.389 Specifically with respect to Ships' Routeing Measures

(e.g. traffic separation schemes, cf. arts. 22, 41 and 53 UNCLOS), there are the IMO General

Provisions on Ships' Routeing, which were amended in 1998.390 This is relevant, as these

measures i.a. contribute to marine environmental protection (see Regulation SOLAS

V/10).391 However, the conclusion has been reached that there is no comprehensive

mandatory or voluntary IMO ships' routeing system for the Arctic marine area in its entirety

or a large part thereof.392

§ 5. CON TIN GEN CY S TAND ARDS

With respect to contingency planning in terms of vessel-source pollution, the 1990 OPRC393

can be mentioned. Also, there is the 2000 HNS Protocol.394 Besides these international

instruments, it can be mentioned here that regional and bilateral arrangements exist among

the Arctic states under the OPRC, such as the Arctic Council's working group on Emergency

Prevention, Preparedness and Response (EPPR; cf. infra).395 Moreover, several Arctic states

have developed joint contingency plans, e.g. the abovementioned Canada-US Joint

Contingency Plan.396

§ 6. LI ABILITY AN D IN SURANCE REQ UI R EME N TS

Finally, another crucial aspect relates to the international system for compensation for

pollution damage caused by vessel-source pollution - a system which is currently

fragmented and limited according to the AMSA.397 Indeed, separate conventions exist for oil

pollution liability and compensation from oil tankers, damages from the spill of bunker oil

from other ships than tankers, and damages caused by hazardous and noxious substances

spills from ships.398 Without further elaborating on this, reference could be made to i.a. the

1969 Civil Liability Convention (CLC, as amended in 1992)399, the 1971 Fund Convention (as

amended in 1992)400, the 2001 Bunker Oil Convention401 and the 1996 HNS Convention

(which has however not yet entered into force).402

389 AMSA, 57. 390 IMO, Assembly, General Provisions on Ships' Routeing, IMO A.572(14) (November 20, 1985); MOLENAAR

(2008), 311-312. 391 For more information see the IMO's website: http://www.imo.org/ourwork/safety/navigation/pages/shipsrouteing.aspx, last accessed April 22, 2013. 392 MOLENAAR (2008), 312. 393 International Convention on Oil Pollution Preparedness, Response and Cooperation of 30 November 1990, London, United Nations Treaty Series, vol. 1891, 77; SOMERS, 389. 394 Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances of 15 March 2000, London, IMO Doc. HNS-OPRC/CONF/11/Rev.1; MOLENAAR (2008), 312; SOMERS, 389. 395 AMSA, 61. 396 MOLENAAR (2008), 317. 397 AMSA, 65. 398 Ibid. 399 International Convention on Civil Liability for Oil Pollution Damage of 29 November 1969, Brussels, United Nations Treaty Series, vol. 973, 3; Cf. SOMERS, 390. 400 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of 18 December 1971, Brussels, United Nations Treaty Series, vol. 1110, 57; Cf. SOMERS, 394. 401 International Convention for Civil Liability for Bunker Oil Pollution Damage of 23 March 2001, London, IMO Doc. LEG/CONF.12/19; Cf. SOMERS, 398-399. 402 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea of 3 May 1996, London, International Legal Materials, vol. 35, 1406; AMSA, 66.

PART II, CHAPTER 1

43

4. SOFT-LAW INITIATIVES ON THE REGIONAL LEVEL T HROUGH THE ARCTIC

COUNCIL

As explained above, the legal regime governing the regulation of Arctic maritime shipping

consists of various regional organisations and instruments as well, on top of the

international instruments adopted within the IMO.403 In this respect, it is the Arctic Council,

specifically designed for the Arctic, which plays the leading part.404

4.1 PREHISTORY

While the Arctic Council has been promoting sustainable development and environmental

protection405 for some years now, this kind of region-wide, i.e. Arctic-wide, cooperation has

not always been self-evident. More particularly, the present-day situation would have been

unthinkable during the Cold War era, except for very limited policy areas. The one region-

specific and region-wide instrument serving as an example of the latter, would be the 1973

Polar Bear Treaty.406 After all, in those days the Arctic was the strategic stage where two

superpowers and their allies confronted each other.407 However, as time went by, it became

clear that the environmental problems and impacts in the fragile Arctic were not caused by

just one country, and - above all - would not be felt by just one country either.408 After

'glasnost' and 'perestroika' had paved the way409, this understanding led to an initial plan for

pan-Arctic cooperation i.a. in the field of the protection of the Arctic environment. It was

launched in 1987 in Murmansk by Michail Gorbachev, who stood at the wheel of the USSR in

those days.410 This signalled the beginning of an Arctic cooperation that would evolve in two

steps, namely the 1991 AEPS and the 1996 Arctic Council (hereinafter called AC).411 While at

present Arctic cooperation is achieved through the AC, a brief word on the AEPS seems

appropriate, since it is important for the understanding of the current functioning of the AC,

as well as of the proposals to renew it (e.g. to transform it into a formal inter-governmental

organisation, cf. infra).412

4.2 THE ARCTIC ENVIRONMENTAL PROTECTION STRATEGY (AEPS)

Previously, the Arctic Ocean had been relegated to oblivion all too often413, but the 1991

Arctic Environmental Protection Strategy (AEPS) introduced the first comprehensive effort

to implement a regime concerning the protection of the Arctic marine environment.414 As

such, it stood at the cradle of Arctic cooperation.415 Adopted by the 1991 Rovaniemi

403 EU Commission, Summary Report, 10. 404 Cf. ibid. 405 JOYNER, 216. 406 Agreement On Conservation of Polar Bears of 15 November 1973, Oslo, International Legal Materials, vol. 13, 13; HOEL, 446; KOIVUROVA, T., MOLENAAR, E. J. and VANDERZWAAG, D.L., "Canada, the EU and Arctic Ocean Governance: A Tangled and Shifting Seascape and Future Directions", J. Transnat'l L. & Pol'y 2009, (247) 259 (hereinafter KOIVUROVA, MOLENAAR and VANDERZWAAG (2009)). 407 KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 259. 408 LENNON, E., "A Tale of Two Poles", Sustainable Dev. L. & Pol'y 2007-2008, (32) 34 (hereinafter LENNON). 409 KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 259. 410 KOIVUROVA and VANDERZWAAG, "The Arctic Council at 10 Years: Retrospect and Prospects", U.B.C. L. Rev. 2007, (121) 123 (hereinafter KOIVUROVA and VANDERZWAAG (2007)). 411 Cf. KOIVUROVA and VANDERZWAAG (2007), 123. 412 KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 260. 413 Cf. JOYNER, 216. 414 JOYNER, 216; ROTHWELL, D.R., "The Arctic in International Affairs: Time for a New Regime?", Brown J. World Aff. 2008-2009, (241) 247 (hereinafter ROTHWELL (2008)); ROTHWELL (2012), 348. 415 Cf. KOIVUROVA and VANDERZWAAG (2007), 123.

PART II, CHAPTER 1

44

Declaration416, it sought to identify the Arctic's most pressing environmental problems (e.g.

oil, noise and radioactivity)417 and address them with a coordinated policy approach.418 In

doing so, it also recognised the need to engage the Arctic Indigenous Peoples.419 This

approach was given shape by six working groups420 and Action Plans aimed at the

management of these problems and discussed through biannual meetings.421 However, it

should be noted that the AEPS never intended to create legally binding obligations422, and

merely led to the development of a collective policy. The latter was ultimately intended to be

implemented by the domestic environmental laws and policies of the Arctic states.423 In this

sense, the cooperation which had seen the light of day in 1991 gave evidence of a fairly low

commitment, not to mention a weak institutional structure.424 All in all, the value of the

AEPS seems to lie in the fact that it enabled the public opinion to "start thinking of societal

and environmental problems for the first time from an Arctic perspective (rather than from the

perspective of individual country's northern or Arctic region) and tackle them with policy

measures".425

4.3 THE ARCTIC COUNCIL

§ 1. A DIRE CT O UTGROW TH OF THE AEPS

The establishment by the AEPS member states (the Arctic Eight)426 of the Arctic Council

(AC) through the 1996 Arctic Council Declaration (Ottawa Declaration)427 marked the

beginning of the second phase in Arctic cooperation.428 Interestingly for the purposes of this

paper, Canada took the lead in its creation and has continued to play an active role ever

since. Yet, according to some, the same cannot be said when it comes to envisioning its

future.429 Nevertheless, the Government of Canada has in any case proclaimed to pursue a

strengthened Arctic Council. More particularly, it does so by pursuing "a greater policy

dialogue, ensuring that research continues to focus on key emerging issues, and engaging with

other member states to address the structural needs of the organisation".430 The US on the

other hand, has been said to refuse to take its Arctic responsibilities seriously and act more

like a 'minor power' within the AC.431

The AC was in fact a 'direct outgrowth' of the AEPS, i.e. the result of the six AEPS working

groups.432 Indeed, the four environmental protection working groups that existed under the

AEPS were integrated in the AC, and two new entities were created in this sphere. These are

the Sustainable Development Working Group (SDWG) and the Arctic Contaminants Action 416 Ibid. 417 JOYNER, 216; ROTHWELL (2008), 247. 418 FARRENS, 672; JOYNER, 216. 419 ROTHWELL (2008), 247; ROTHWELL (2012), 349. 420 ROTHWELL (2008), 247; ROTHWELL (2012), 348-349. 421 FARRENS, 672; JOYNER, 216. 422 ROTHWELL (2008), 247; ROTHWELL (2012), 349. 423 Ibid. 424 KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 260. 425 Ibid. 426 KOIVUROVA and MOLENAAR (2010), 16. 427 KOIVUROVA and VANDERZWAAG (2007), 123. 428 Ibid. 429 KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 262-63. 430 Government of Canada, Statement; Cf. BROSNAN et al., 178. 431 ROTHWELL (2008), 247. 432 FARRENS, 672.

PART II, CHAPTER 1

45

Programme (ACAP).433 The pre-existing working groups are: the Conservation of Arctic

Flora and Fauna (CAFF), the Protection of the Arctic Marine Environment (PAME), the

Emergency Prevention, Preparedness, and Response (EPPR) and the Arctic Monitoring and

Assessment Programme (AMAP).434 For the purposes of this paper, the PAME and EPPR are

of particular interest.435

Thus, it is clear that the foundation of the cooperation has remained very similar in the AC,

compared to the situation existing under the AEPS. This is a crucial fact, as it illustrates that

the AC is fairly resistant to change.436 In turn - looking ahead to the last part of this paper -

this explains why the proposal of formalising the AC into an inter-governmental

organisation, is not at all self-evident. This is contrary to what the past evolutions might

suggest at first sight.437 Notwithstanding this similarity in structure, the AC has broadened

the cooperation previously existing under the AEPS, in particular with respect to sustainable

development and environmental protection in the Arctic.438

Further, it is important to note that each of these working groups acts as an individual

entity, each creating environmental protection programmes.439 However, it should not be

forgotten there is also a certain unity and stability, since recently a permanent Secretariat

has been established within the AC (situated in Tromsø, Norway).440 This is of special

relevance, for the pre-existing rotating Secretariat has often been criticised, as this caused

the AC's policy to be heavily influenced by the changing priorities of the chair-state, the

chairmanship rotating biannually.441

§ 2. GO ALS AND ACTO RS

The AC took the form of a high-level international ministerial forum442, providing a means

for promoting cooperation, coordination and interaction among the Arctic states. In this

respect, the AC also involves the Arctic Indigenous Communities and other Arctic

inhabitants.443 Ultimately, the purpose of this is to develop, recommend and implement

environmental policies that should protect the region's pristine but extremely fragile

environment. As such, the AC seeks to replace the patchwork quilt composed of the Arctic

Eight's domestic environmental laws and policies.444 This is done by means of programmes

that establish the status of knowledge in various issue-areas, thus building a common

understanding.445

It should be noted that the AC's regional scope of application is defined very broadly with

respect to this regional cooperation, geographically encompassing a region of more than 30

million km².446 The actors within the Council are threefold, including Members proper,

433 KOIVUROVA and MOLENAAR (2010), 16. 434 Ibid. 435 EU Commission, Summary Report, 10; MOLENAAR (2008), 302. 436 KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 261. 437 Ibid. 438 KOIVUROVA and MOLENAAR (2010), 16. 439 LENNON, 34. 440 ROTHWELL (2008), 247; ROTHWELL (2012), 349. 441 KOIVUROVA and MOLENAAR (2010), 16; Cf. LENNON, 34. 442 ROTHWELL (2008), 247. 443 FARRENS, 672. 444 Ibid. 445 HOEL, 447. 446 Ibid.

PART II, CHAPTER 1

46

Observers and Permanent Participants.447 The AC's Members are the Arctic Eight, while

several entities have been granted Observer status. Among these are e.g. a number of

European countries, UN programmes and non-profit organisations.448 The status of

Permanent Participants, distinguished from that of Members and Observers449, is granted to

the Arctic's Indigenous Peoples. This creates a position that allows much practical influence

on the decision-making, however without any formal decision-making power.450 This status

requires Indigenous Peoples to be consulted prior to any decisions by the Members and is

considered a unique aspect of the AC.451

§ 3. A PROMO TE R OF S OFT L AW

It is crucial to stress that the AC, while an international forum - moreover a forum that has

been gaining strength over the years of its existence452 - is certainly not an international

organisation under international law.453 The relevance of the distinction lies in the fact that

the AC has been established by means of a non-legally binding declaration. Hence, it lacks

the competence to impose legally binding obligations.454 As such, it is an advisory body455

capable of creating policies, without however having the authority to enforce special

programmes or regional agreements as binding law.456 In other words, the most the AC can

do in this respect, is to issue policy recommendations and adopt guidelines and

recommendations on how the Arctic states should conduct themselves in certain fields of

activity.457 Thus, the AC is not an operational body, but a consensus- and project-based

entity. This implies it has got no general role in coordinating Arctic policies, unless in

spheres specifically agreed upon in advance.458

Looking ahead to Part III of this paper, it should be noted that the AC's soft-law nature,

hence its lack of enforcement mechanisms, has been attributed to the Arctic nations'

inability to reach a consensus on sovereignty claims and other issues.459 This feature has

been deemed a crucial structural shortcoming of the current legal framework.460

§ 4. ACHIE VEMEN TS

As to the achievements of the AC, generally speaking the Council can be said to have evolved

over time into an effective network for the Arctic states to address common issues.461 As

such, it has undertaken significant initiatives with a marine dimension462. These include

important assessment work, as well as non-legally binding guidelines and manuals of good

practice. Importantly, these initiatives have often influenced international environmental

447 Cf. KOIVUROVA and MOLENAAR (2010), 17. 448 KOIVUROVA and VANDERZWAAG (2007), 132. 449 KOIVUROVA and MOLENAAR (2010), 16. 450 KOIVUROVA and VANDERZWAAG (2007), 130. 451 KOIVUROVA and MOLENAAR (2010), 16. 452 KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 261. 453 KOIVUROVA and MOLENAAR (2010), 16. 454 KOIVUROVA and MOLENAAR (2010), 17. 455 LENNON, 33. 456 JOYNER, 217; LENNON, 34. 457 KOIVUROVA and MOLENAAR (2010), 17. 458 KOIVUROVA and MOLENAAR (2010), 16. 459 MALLOY, 481. 460 Cf. inter alia FARRENS, 672; ROTHWELL (2008), 247. 461 ROTHWELL (2012), 349. 462 ROTHWELL (2012), 349.

PART II, CHAPTER 1

47

protection processes.463 Moreover, recently, for the first time a legally binding instrument

was agreed upon between the Arctic Eight under the auspices of the AC. This is the 2011

Agreement on the Aeronautical and Maritime Search and Rescue (SAR) in the Arctic.464

Needless to say, this instrument has been considered a major step forward in the adoption

of a hard-law response to Arctic issues.465

As mentioned above, in the light of vessel-source pollution and environmental protection,

the PAME and EPPR are the most relevant working groups for this thesis. With the former,

the Arctic Eight took the commitment of taking preventive and other measures (directly or

through the competent international organisations) to protect the Arctic's marine

environment from various sources of pollution.466 Among its most notable output is the

Arctic Marine Strategic Plan (AMSP)467. The latter has identified climate change and

increasing economic activity as the largest drivers of change in the Arctic.468 Further, the

Guidelines for Transfer of Refined Oil and Oil Products in Arctic Waters (TROOPS)469, and

the 2009 AMSA Report470 - which has been repeatedly mentioned throughout this paper -

deserve mentioning.

Within the context of the EPPR, the Arctic Guide for Emergency Prevention, Preparedness

and Response (updated annually), the 1998 Field Guide for Oil Spill Response in Arctic

Waters471, the 1998 Environmental Risk Analysis of Arctic Activities472, the 2002

Circumpolar Map of Resources at Risk from Oil Spills in the Arctic473, and the 2004 Shoreline

Clean-up Assessment Technique (SCAT) Manual474 are among its major contributions.475

Despite these positive achievements and developments, it should be noted that the AC's

position has been deemed uncertain ever since the 2008 Ilulissat Declaration. This is due to

the fact that in this Declaration, only five of the Arctic Eight agreed to discuss Arctic Ocean

issues. More particularly, this raised questions on the Council's capacity to represent the

views of all Arctic states with one voice.476

463 KOIVUROVA and MOLENAAR (2010), 17. 464 ROTHWELL (2012), 349. 465 ROTHWELL (2012), 359. 466 KOIVUROVA and VANDERZWAAG (2007), 141. 467 HOEL, 447; JOYNER, 217; MOLENAAR (2008), 315. 468 KOIVUROVA and MOLENAAR (2010), 17. 469 Arctic Council, Protection of the Arctic Marine Environment (PAME), Guidelines for Transfer of Refined Oil and Oil Products in Arctic Waters (TROOPS), 2004, available at: http://www.pame.is/images/stories/PDF_Files/Doc_lib/OilandGasReports/TROOP%20-%20English%202.pdf, last accessed April 14, 2013.; JOYNER, 217; MOLENAAR (2008), 315. 470 MOLENAAR (2008), 315. 471 Arctic Council, Emergency Prevention, Preparedness and Response (EPPR), Field Guide for Oil Spill Response in Arctic Waters, 1998, see http://www.arctic-council.org/eppr/completed-work/oil-and-gas-products/field-guide-for-oil-spill-response/, last accessed April 14, 2013. 472 Arctic Council, Emergency Prevention, Preparedness and Response (EPPR), Environmental Risk Analysis of Arctic Activities, 1998, see http://www.arctic-council.org/eppr/environmental-risk-analysis-of-arctic-activities/, last accessed April 14, 2013. 473 Arctic Council, Emergency Prevention, Preparedness and Response (EPPR), Circumpolar Map of Resources at Risk from Oil Spills in the Arctic, 2002, see http://eppr.akvaplan.com/intro/intro.htm, last accessed April 14, 2013. 474 Arctic Council, Emergency Prevention, Preparedness and Response (EPPR), Shoreline Clean-Up Assessment Technique (SCAT) Manual, 2004, see http://www.arctic-council.org/eppr/completed-work/oil-and-gas-products/arctic-shoreline-clean-up-assessment-technique-scat-manual/, last accessed April 14, 2013. 475 MOLENAAR (2008), 315. 476 ROTHWELL (2012), 350.

PART II, CHAPTER 1

48

5. NATIONAL LEGAL FRAMEWORKS (DOMESTIC LAW)

5.1 GENERAL OBSERVATIONS

The existence of a domestic law component, in addition to the global and regional levels,

adds to the multiplicity of laws affecting the region.477 Because of the latter, it is of great

relevance to pay attention to this national aspect (albeit briefly), even if the legal frame of

reference of this paper is the law of the sea, hence international (public) law.

In general terms, the role of domestic laws and regulations is explained by the fact that the

Arctic comprises territories belonging to different sovereign states. In this respect, it differs

from the Antarctic (cf. infra). These states can therefore exercise their state sovereignty,

albeit upon the understanding that the UNCLOS only allows for unilateral prescriptions in a

few cases. Among these art. 234 UNCLOS on ice-covered areas, the so-called 'Arctic

Exception'478, is the most noteworthy for the purposes of this paper. Indeed, Canada (as well

as the Russian Federation with respect to the Northern Sea Route (NSR)) has invoked this

provision (among others) to regulate shipping in its Arctic regions.479 In the light of the

latter, it should immediately be noticed that the application of this provision generates

certain questions.480

It can be recalled that this paper focuses, within the broader Arctic context, on the NWP and

that the latter lies in the centre of the Canadian Arctic Archipelago. As such, it is in essence a

collection of possible routes through the Canadian Arctic.481 Therefore, we will briefly focus

on Canadian legislation only. However, it should be noted that the US acts in the capacity of a

coastal state with respect to the NWP as well, meaning US domestic law too is relevant.482

The US derives this capacity from the state of Alaska, occupying the eastern side of the

Bering Strait, through which all trans-Arctic marine shipping has to pass.483 Indeed, the

Government of Canada considers the US "our premier partner in the Arctic".484

5.2 THE CANADIAN DOMESTIC LEG AL FRAMEWORK

§ 1. CAN AD A 'S IN TEG RATED NO RTHE RN STRATEGY

The Canadian domestic aspect of the legal framework is reflected in its so-called 'Integrated

Northern Strategy'.485 The latter supports the philosophy that "Canada's vision for the Arctic

is of a stable, rules-based region with clearly defined boundaries, dynamic economic growth

and trade, vibrant Northern communities, and healthy and productive ecosystems".486 This

motto, expressed by the Government of Canada is founded on four pillars: (1) exercising

Canadian sovereignty487, (2) promoting economic and social development488 (3), protecting

477 MALLOY, 487. 478 MALLOY, 485. 479 AMSA, 66. 480 See further AMSA, 53. 481 WILSON et al., 1853-1854. 482 With respect to the application of environmental law in the Arctic, see MALIK, J.M., "United States Environmental Law Applied in the Arctic Ocean: Frustrating the Balance of the Law of the Sea, National Sovereignty, and International Collaboration Efforts", Naval L. Rev. 2010, 41-92. 483 EU Commission, Summary Report, 14; MOLENAAR (2008), 293. 484 Government of Canada, Statement. 485 EU Commission, Summary Report, 14. 486 Government of Canada, Statement. 487 Cf. BROSNAN et al., 181. 488 Cf. BROSNAN et al., 185.

PART II, CHAPTER 1

49

the Arctic environment and (4) improving and devolving governance.489 Most interestingly,

Arctic marine transportation is deemed a key element of this strategy.490 Looking ahead to

Chapter 2 of this part, it seems of the utmost importance to note that exercising Canadian

sovereignty is marked the number one priority in Canada's Arctic foreign policy.491

Moreover, the Canadian Government thinks of Canada's Arctic sovereignty as "long-

standing, well-established and based on historic title".492 However, this point of view has met

severe resistance on the other side of the Canadian-US border, not to mention the EU's

perspective (cf. Chapter 2).493 Specifically with respect to the protection of the Arctic

environment, Canada pursues international action, in first instance by promoting an

ecosystem-based approach (cf. supra).494

Despite this ambitious language, it should be noted that Canada's current Arctic regulations

within the context of this policy, have been considered out of step with international

guidelines and standards. As such, they have been deemed in need of an update to conform

with scientific best practices.495 In this context reference can be made to the IMO Guidelines

for Ships Operating in Arctic Waters and the standards established by the International

Association of Classification Societies (IACS) with respect to the so-called Polar Class

ships.496

§ 2. THE 1996 OCEANS ACT AND THE ES TABLISH MEN T OF S TRAI G HT BAS ELINES

Within this general current philosophy, some specific aspects may be mentioned, such as

Canada's 1996 Oceans Act.497 The latter declares a territorial sea up to 12 nm, a contiguous

zone up to 24 nm, an EEZ up to 200 nm and a continental shelf of at least 200 nm, or further

in case of an extended continental margin (in all cases as measured from the baseline).498 All

of this is in accordance with the UNCLOS, which Canada would however not ratify until

November 2003. Also, Canada has established highly controversial straight baselines in an

attempt to include the waters of its Arctic Archipelago as internal waters.499 This is further

explained in Chapter 2.

§ 3. THE 1970 ARCTI C WATE RS POLL UTI ON PRE VEN TION ACT (AWPPA)

Further, shipping in Arctic waters is regulated by Canada through the 1970 Arctic Waters

Pollution Prevention Act (hereinafter AWPPA)500, including its associated regulations.501

Also, there is the 2001 Canada Shipping Act (hereinafter CSA), again including the

489 Government of Canada, Statement; Cf. EU Commission, Summary Report, 14. 490 EU Commission, Summary Report, 14. 491 Government of Canada, Statement. 492 Government of Canada, Statement. 493 Cf. CLARK, 91. 494 Government of Canada, Statement. 495 CLARK, 106. 496 Ibid. 497 Oceans Act, S.C. 1996, c. 31, available at: http://laws-lois.justice.gc.ca/eng/acts/O-2.4/index.html, last accessed April 22, 2013. 498 EU Commission, Summary Report, 14. 499 Cf. ibid. 500 Arctic Waters Pollution Prevention Act, R.S.C. 1970 (1st Supp.), c. 2, amended S.C. 1977-78, c. 41. For the current consolidated version, see Arctic Waters Pollution Prevention Act, R.S.C., 1985, c. A-12, available at: laws-lois.justice.gc.ca/eng/acts/A-12/, last accessed April 22, 2013. 501 An oversight as well as the full text of these Regulations is available at the website of the Government of Canada, Justice Laws: http://laws-lois.justice.gc.ca/eng/acts/A-12/index.html, last accessed April 22, 2013.

PART II, CHAPTER 1

50

regulations issued under it.502 Moreover, Canada asks vessels intending to travel through

Arctic waters to abide by a number of voluntary guidelines and standards.503

The AWPPA was adopted in 1970 by the Canadian Parliament in response to the challenge

to Canada's sovereignty posed by the passage of the S.S. Manhattan, a US ice-strengthened

super-tanker, the year before, in 1969.504 The Manhattan was designed merely to test the

feasibility of a route through the NWP for the transport of Alaskan oil to the Atlantic

seaboard505. However, this voyage unleashed heavy weather in the diplomatic relations

between Washington and Ottawa. This diplomatic tsunami was triggered by the ostentatious

refusal of the US Government to ask prior authorisation for the Manhattan's voyage to the

Canadian authorities.506 With the introduction of the AWPPA, Canada led the international

community by setting strict environmental and safety standards in one of the world's most

sensitive regions. More particularly, the Act addressed all shipping within 100 nm of

Canada's Arctic coast.507 In practice, this scope of application encompasses the principal

routes of the NWP that pass along Canada's coastline.508 The core of the Act was more

particularly that it enabled Canada to set vessel construction and operation standards

within this area.509

The AWPPA was indeed revolutionary, even to the extent that it was in fact contrary to

international law at the time.510 After all, coastal states were - at that time - not allowed to

regulate marine environmental matters beyond their territorial seas.511 Canada was

obviously aware of this, as it revoked its acceptance of the compulsory jurisdiction of the

International Court of Justice (ICJ) with respect to the prevention or control of pollution in

marine environments. As such, it prevented any future litigation on this issue.512 At present,

the Act is still in force; moreover, Canada has extended the application of the AWPPA in

2009, in the sense that it now applies throughout the Canadian EEZ.513

The relevance of this story - history by now - and the reason why it is mentioned here, lies in

the fact that the AWPPA was a key factor in the inclusion of art. 234 UNCLOS. The latter is

the only provision specifically relating to ice-covered areas in this extensive Convention.514

Indeed, the adoption of art. 234 was a particularly symbolic development515 for Canadians.

After all, it provided some international recognition for the legitimacy of the Canadian

AWPPA.516 Moreover, this provision has been accepted as being part of international

customary law by the US.517 This explains why the Canadian reservation to the jurisdiction

502 CLARK, 80. 503 Ibid. 504 Ibid.; Cf. BYERS, M. and LALONDE, S. “Who Controls the Northwest Passage?”, Vand. J. Transnt’l L. 2009, (1133)

1149-1150 (hereinafter BYERS and LALONDE). 505 BYERS and LALONDE, 1148-1149. 506 Ibid. 507 BYERS and LALONDE, 1150; CLARK, 80. 508 CLARK, 93. 509 MOORE, 20. 510 BYERS and LALONDE, 1150. 511 CLARK, 85. 512 BYERS and LALONDE, 1150; READ, 418. 513 EU Commission, Summary Report, 14; BYERS and LALONDE, 1151; MCDORMAN (2010), 245. 514 EU Commission, Summary Report, 14; BYERS and LALONDE, 1151; MOLENAAR (2008), 307. 515 ROTHWELL (2012), 345. 516 Ibid. 517 MCDORMAN (2010), 245.

PART II, CHAPTER 1

51

of the ICJ regarding Arctic matters was removed in 1985, with the statement that Canada

was prepared to uphold its position in Court, if necessary.518

§ 4. THE 2001 CAN ADA SHI PPING ACT (CSA)

The 2001 Canada Shipping Act519 is the successor of the 1985 Canada Shipping Act520 and

came into effect in 2007. It has been described as "Canada's principal legislation governing

marine transportation, including vessel-source pollution".521 However, this piece of legislation

has also been criticised in the sense that its provisions (and those of its associated

regulations) potentially overlap with the AWPPA. In other words, two sets of regulations

simultaneously apply in Canada's Arctic waters, which is of course a source of uncertainty

and difficulties.522 Taking into account the limited scope of this paper, this issue will not be

further elaborated on.523

§ 5. VOL UN TARY AP PL ICATION OF GUI DELINE S AND S T AND ARDS

Finally, Canada also desires the voluntary application of certain guidelines and standards in

its Arctic waters.524 Such guidelines and standards include (but are not limited to)525 the

Guidelines for the Operation of Passenger Vessels in Canadian Arctic Waters526, the Arctic

Water Oil Transfer Guidelines and the Arctic Ice Regime Shipping Standards (AIRSS).527 The

former consists of a wide range of recommendations, such as the use of the Canadian Arctic

marine traffic system (i.e. the reporting system of the Canadian Coast Guard)528, called

NORDREG.529 The latter, while introduced in 1977 as a voluntary measure, has been

transformed into a mandatory system, effective as of July 1, 2010.530 The second group of

guidelines relates to the prevention of fuel and cargo spillage, hence environmental damage.

More specifically, it addresses spillage in the act of transferring oil between two vessels or

between a vessel and a terminal or storage depot.531 The last category was introduced to

give greater flexibility for ships to navigate in the Arctic when ice conditions allow.532

It is remarkable that these guidelines and standards, while not legally binding, hence not

subject to legal sanctions, sometimes use mandatory language.533 De lege ferenda, several

authors have expressed the view that it would be beneficial to grant regulatory force to

some of these guidelines and standards.534

518 MCDORMAN (2010), 235. 519 Canada Shipping Act, 2001, S.C. 2001, c. 26, available at: http://laws-lois.justice.gc.ca/eng/acts/C-10.15/index.html, last accessed April 22, 2013. 520 Canada Shipping Act, R.S.C., 1985, c. S-9, available at: http://laws-lois.justice.gc.ca/eng/acts/S-9/index.html, last accessed April 22, 2013. 521 CLARK, 95; Cf. AMSA, 56. 522 CLARK, 95 and 98. 523 For an analysis, see CLARK, 95 et seq. 524 CLARK, 104. 525 For a more complete overview of marine regulations, see PHARAND (2007), 41. 526 Cf. ibid. 527 CLARK, 104-105. 528 BROSNAN et al., 188. 529 CLARK, 105; PHARAND (2007), 48. 530 See the website of Transport Canada: http://www.tc.gc.ca/eng/mediaroom/releases-2010-h078e-6019.htm, last accessed April 21, 2013. 531 CLARK, 104-105. 532 CLARK, 105. 533 Ibid. 534 BYERS and LALONDE, 1185, referring to GRIFFITHS, F., “The Shipping News: Canada’s Arctic Sovereignty Not on Thinning Ice”, Int’l J. 2003, (257) 272 (hereinafter GRIFFITHS); Cf. CLARK, 104.

PART II, CHAPTER 1

52

5.3 ART . 234 UNCLOS - THE 'ARCTIC ARTICLE '

§ 1. GENE RAL

The UNCLOS provides only one provision expressly and specifically addressing ice-covered

areas.535 Indeed, this provision - sometimes referred to as 'the Arctic Article'536 or 'the Arctic

Exception'537, was meant to apply specifically to the Arctic.538 This is evidenced by its

genesis539, being negotiated directly between Canada, the US and the USSR, i.e. the states

most concerned at the time.540 Or, in other words, while the UNCLOS "applies as fully to the

Arctic as it does to every other ocean, (...) there is one respect in which ice-covered areas in the

Arctic are treated differently".541 Indeed, this provision has been described as a lex

specialis.542

This fact alone, taking into account the scope of this paper, justifies a brief word on this

provision. Admittedly, the importance of this provision is decreasing together with the

decreasing ice-coverage, meaning fewer states will be able to rely on Article 234 in fewer

areas.543 However, it was explained above with respect to the AWPPA that this provision is,

from a Canadian point of view, of particular importance, as it was basically triggered by the

Canadian national legislation. Also, Canada is the only Arctic state (besides the Russian

Federation) that has invoked this provision to adopt national legislation of a more strict

nature than GAIRAS544, arguably even going further than what is allowed by art. 234.545 For

example, the Canadian pollution standards for discharges are more strict than under

MARPOL.546 Finally, this provision has been considered to cause several problems with

respect to its application.547 For these reasons, art. 234 is briefly looked upon in the

following.

§ 2. ART . 234: A WI TCH 'S BRE W 548

The provision of art. 234 UNCLOS has its roots in the diplomatic stirrings after the passage

of the S.S. Manhattan, long before the negotiations of the Third Conference on the Law of the

Sea, which would ultimately result in the UNCLOS.549 It has been described as "the only

provision in part XII [of the UNCLOS] which confers rights on coastal states to adopt and

enforce - within the limits of its [EEZ] - its own non-discriminatory laws and regulations for the

prevention, reduction, and control of marine pollution".550 This provision is, at present,

considered part of customary international law551. This is obviously relevant for the US,

535 FRANCKX, 413. 536 CLARK, 89; FRANCKX, 411. 537 MALLOY, 485. 538 FRANCKX, 411. 539 Ibid. 540 Ibid.; CLARK, 89. 541 MOORE, 18. 542 CLARK, 89. 543 MOLENAAR (2008), 307. 544 Cf. MOLENAAR (2008), 307; EU Commission, Summary Report, 18. 545 EU Commission, Summary Report, 14. 546 AMSA, 66. 547 AMSA, 53. 548 FRANCKX, 415, referring to LAMSON, C., "Arctic Shipping, Marine Safety and Environmental Protection", Marine Pol'y 1987, (3) 4. 549 MOORE, 19. 550 CLARK, 89. 551 PHARAND (2007), 26.

PART II, CHAPTER 1

53

which is as of today not a party to the UNCLOS. Although some points have been considered

uncontroversial in the doctrine (cf. supra, with respect to the EEZ)552, this unique provision

raises several questions with respect to its application to specific cases. Also, it raises

questions of a more general, theoretical nature.

First of all, questions have been posed as to what exactly is needed to fulfil the criterion of

'ice covering such areas for most of the year'.553 More particularly, one could wonder

whether partial ice cover would suffice, provided there is an exceptional hazard to

navigation554. Moreover, the restriction provided by the words 'for most of the year' is

becoming more and more important, taking into account the decrease in Arctic ice coverage

(cf. Part I).555 Indeed, it has been concluded that "as the melting process continues to increase

over time, coastal states' reliance on Art. 234 (...) in order to restrict foreign navigation in the

area will become less and less effective".556

Also, scholars have been divided on the geographical area of application. Under a narrow

interpretation, some have contended that the special measures art. 234 allows for are only

possible within the limits of the EEZ itself. Others questioned whether these extensive

powers also apply in the territorial sea (cf. supra).557 Some, among whom PHARAND, 'the

Arctic Scholar'558, have contended that under a broad interpretation559 these powers should

apply in the territorial sea as well. As a justification these authors invoke the argument that

any other conclusion would lead to the completely illogical result of a coastal state enjoying

more extensive rights in its EEZ than in its territorial waters.560 However, to add to these

difficulties, some hold the view that the meaning of art. 234 should be that it doesn't grant

more extensive powers with respect to the EEZ than the powers applicable in the territorial

sea.561

The literature has pointed out that, as there are no 'travaux préparatoires' offering a clear

answer on this, the opinion of the negotiators of this article should be particularly taken into

account.562 Among these negotiators are the former Canadian and US delegates, L. LEGAULT

and B. OXMAN. Both share the opinion that art. 234 "was intended to embrace all waters

landward of 200 miles, including the territorial sea, internal waters and straits".563 In any case

the laws and regulations Canada has adopted so far (most notably the AWPPA) don't seem

to make a distinction between the territorial sea and the EEZ.564 Moreover, it has been

remarked that a narrow interpretation, when it proves to be insufficient for the adequate

protection of the Arctic coastal states' marine environments, would only trigger further

unilateral action.565 In this respect, looking ahead to Chapter 2, it should be noted that this is

552 See in particular: CLARK, 89-90, giving an enumeration of eight points. 553 Cf. AMSA, 53. 554 AMSA, 53. 555 MOLENAAR (2008), 308. 556 FRANCKX, 410. 557 See CLARK, 90, supporting a broad interpretation. 558 LALONDE, S. and RONALD, ST. J., "Donat Pharand: The Arctic Scholar", Can. Y.B. Int'l L., vol. 44, 2006, 3-94. 559 PHARAND (2007), 47. 560 EU Commission, Summary Report, 13; KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 258. 561 KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 258; PHARAND (2007), 47. 562 PHARAND (2007), 47. 563 Ibid. 564 Cf. AMSA, 53 and 68; EU Commission, Summary Report, 19. 565 PHARAND (2007), 47.

PART II, CHAPTER 1

54

exactly what Canada has done by establishing straight baselines around its Archipelago in

1985.566

Further, it was mentioned above that there are two important questions with respect to the

relationship between the regime of transit passage on the one hand and art. 234 on the

other hand. The first question is whether art. 234 has priority over the transit passage

regime applicable to (certain) international straits or not. The second question is, if so, how

it should be interpreted.567 As to the second question, it was just explained that there seem

to be several ambiguities, while the elements which are no longer subject to discussion have

been described higher, when discussing the EEZ.568

The first question could be particularly relevant in the light of Chapter 2. After all, the

answer could determine whether Canada remains within the boundaries of what is allowed

by art. 234 with its domestic laws and regulations, or not.569

In this respect, it has been concluded that "assuming that not the regime of transit passage

but Article 234 would be applicable, the laws and regulations of Canada (...) do not seem to

overstep the limits imposed by Article 234".570 While some authors have contended that the

UNCLOS doesn't provide a clear answer on this571, a reasoning on the basis of simple

common sense does seem to imply a clear answer. Indeed, other scholars noted that 'the

Arctic Article' stands in an independent position, unaffected by other provisions.572 After all,

art. 234 constitutes a special section (Section 8 of Part XII of the Convention).573 This implies

that, "[i]f it had been the intention to apply the legal regime of straits used for international

navigation to those within ice-covered areas, a Section 8 entitled “ice-covered areas” would

have been added to the excluded sections specifically mentioned in Article 233".574 Moreover,

art. 34 states that "the regime of passage through straits used for international navigation (...)

shall not in other respects affect the legal status of the waters forming such straits or the

exercise by the [s]tates bordering the straits of their sovereignty or jurisdiction over such

waters".575 This has led some authors to the conclusion that the applicability of the regime of

transit passage to the NWP would not limit Canada's special jurisdiction derived from art.

234.576 In any case, the fact is that this issue remains disputed and that the view of Canada is

likely to be the opposite of the views of the US and other relevant states such as the EU.577

In summary, the Arctic Exception has been beautifully and most aptly described as "a witch's

brew, a cauldron of legal uncertainty which could be stirred in favour of either the coastal or

shipping state".578 This is likely due to the fact that this provision saw the light of day as a

566 Ibid. 567 Cf. MOLENAAR (2008), 307-308; PHARAND (2007), 46. 568 Cf. PHARAND (2007), 47. 569 EU Commission, Summary Report, 18. 570 Ibid. 571 Cf. DE LA FAYETTE, 546; MOLENAAR (2008), 307 i.f. 572 CLARK, 89, referring to PHARAND (2007), 46-47. 573 PHARAND (2007), 46. 574 Ibid.; Cf. KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 258. 575 PHARAND (2007), 48. 576 Ibid. 577 MOLENAAR (2008), 308. 578 FRANCKX, 415, referring to LAMSON, C., "Arctic Shipping, Marine Safety and Environmental Protection", Marine Pol'y 1987, (3) 4.

PART II, CHAPTER 1

55

compromise between states with totally opposing interests.579 This led some authors to

pose a question of crucial relevance in the light of the research question as formulated

above: "[d]espite the legal framework available, are we still lost at sea if the only article

specifically applicable to the Arctic does not really provide clear and firm guidance?"580

Looking ahead to Part III of this paper, the author should believe so, especially taking into

account what was concluded above with respect to the continued non-ratification of the

UNCLOS by the US. Indeed, with respect to the legal nature of the NWP as of today, under the

present circumstances, it can be seriously questioned whether the UNCLOS holds a

waterproof answer that is beyond any dispute.581

6. THE ARCTIC 'S LEGAL REGIME COMPARED TO THE ANTARCTIC TREATY

SYSTEM (ATS)

6.1 GENERAL OBSERVATIONS

In order to enable the reader to better situate the legal framework and its structure and to

better understand the policy options that lie at the basis of it, in the following a brief

comparison is made with the regime governing the Antarctic, i.e. the Antarctic Treaty

System (the so-called ATS). Further, the following is of great relevance with respect to Part

III of this paper, in particular where it addresses the option of a so-called 'Arctic Treaty',

modelled after the ATS, to reform the current legal framework described above. Finally,

such a comparison simply fits in with the general habit of linking the polar regions together.

Indeed, both regions have a parallel physical location and have frigid temperatures and

limited accessibility in common.582

On the one hand, the general underlying principles and goals of the Arctic and the Antarctic

regime are similar, since both regions share the same dilemmas to a certain extent.583 In

particular, both poles seem to share four important characteristics. Both offer opportunities

for priceless scientific research, both hold fabulous resources, both poles contain unique

ecosystems and both the Arctic and Antarctic environments are exceptionally fragile (cf.

Part I).584 Nevertheless, the legal community seems prone to emphasise the differences.585

As such, there has only been an actual common legal analysis with respect to the

international law governing the assertion of territorial claims.586

On the other hand, the legal regimes of the Arctic and the Antarctic are indeed characterised

by a stark contrast in terms of operation and effect. This is obviously explained by the

significant geographical and political differences between the two regions, the one being the

geographical opposite of the other.587 In this respect, the Antarctic can be said to be more

isolated than the Arctic, both in geographical and in political terms. Indeed, the Arctic

579 FRANCKX, 415. 580 FRANCKX, 416. 581 FRANCKX, 416, referring to MCRAE; Cf. READ, 443. 582 LENNON, 32. 583 MALLOY, 481. 584 MALLOY, 480-481. 585 MALLOY, 475. 586 ROTHWELL (2012), 358. 587 LENNON, 32; MALLOY, 481.

PART II, CHAPTER 1

56

contains territories and pieces of land belonging to several sovereign countries588, while the

Antarctic is a global commons, i.e. non-sovereign land.589

Most remarkable in this respect, is the assessment that the Antarctic has been governed by a

binding legal regime (hard law) ever since the mid-twentieth century.590 The legal regime

applicable to the Arctic however, has been considered a 'hodgepodge' of a few international

treaties, various regional bilateral and multilateral agreements, and domestic laws591,

characterised by a "perpetuated reliance on soft law"592. As such, the feeling exists that "[t]he

Arctic's regime has lagged behind the Antarctic's in protecting its environment and [that] the

time has come for it to catch up".593 Indeed, the lack of comprehensive laws to determine a

uniform governance system and environmental protections, has been considered to

contribute to the vulnerability of the Arctic.594

6.2 THE UNCLOS

First of all, it is important to emphasise that the UNCLOS principally applies to the Antarctic

as well595, although many of its provisions are implemented by the ATS with more specific

guidelines and regulations.596 Indeed, the doctrine has at present reached the conclusion

that "the law of the sea as represented by the [UNCLOS] is at the front and centre of polar

oceans governance, notwithstanding some prior uncertainty that may have developed with

respect to its application".597

Generally speaking, the Southern Ocean circumscribing the Antarctic continent may be

classified for the most part as 'high seas' in terms of the UNCLOS598, with the exception of a

number of islands over which undisputed national sovereignty is exercised.599 The latter

implies sovereign rights and jurisdiction for the sovereign states involved (acting as coastal

states) in the adjacent territorial seas of these islands and in some cases also in the attached

EEZs.600 As such, e.g. New Zealand's South Island is a coastal state in its own rights, i.e.

independent from any linkages that may arise through island sovereignty601 (cf. Part VIII

UNCLOS, art. 121). Also, certain islands remain subject to ongoing sovereignty disputes, e.g.

between the UK and Argentina, with respect to the Falkland Islands (Malvinas).602

More specifically, the part of the Southern Ocean south of 60° south latitude, including all ice

shelves, falls within the area governed by the 1959 AT (art. VI).603 As the Antarctic is a

neutral area, beyond the sovereignty of any country604, in the area governed by the Antarctic

588 LENNON, 32. 589 MALLOY, 488; Cf. SHAW, 533-534. 590 LENNON, 32. 591 MALLOY, 481. 592 Ibid. 593 MALLOY, 481. 594 LENNON, 32. 595 MALLOY, 490; Cf. ROTHWELL (2012), 344. 596 MALLOY, 490. 597 ROTHWELL (2012), 346. 598 MILLER, D.G.M., "The Southern Ocean: A Global View", Ocean Yearbook, vol. 14, 2000, (469) 485 (hereinafter

MILLER). 599 MILLER, 485. 600 Ibid. 601 MILLER, 486. 602 Ibid. 603 Ibid. 604 LENNON, 33.

PART II, CHAPTER 1

57

Treaty (AT) there can be no such thing as a 'territorial sea'605. For that matter, the

Antarctic's neutrality also implies that the exercise of traditional coastal state jurisdiction

(cf. supra) with respect to marine pollution is not possible.606 Moreover, due to the

Antarctic's isolated position, port states may be a considerable distance from areas where a

pollution incident has occurred.607

Within the AT area, the rights and duties of the UNCLOS in the high seas apply (art. VI)608.

Yet, the application of the freedoms as established in art. 87 UNCLOS can be restricted or

modulated by other international treaties (cf. art. 87(1)).609

6.3 THE ANTARCTIC TREATY SYSTEM (ATS)

§ 1. GENE RAL

However, the Antarctic is of course mainly governed by its own binding regime, the

Antarctic Treaty System or ATS.610 At the core of this regime is the 1959 Antarctic Treaty

(AT, also called the Washington Convention).611 This Treaty laid the foundation for the

development of the Antarctic Treaty System, nowadays also including a framework of

additional conventions and instruments.612 These relate to the 1991 Protocol on

Environmental Protection to the AT, better known as the 'Madrid Protocol'613, as well as the

1972 Convention for the Conservation of Antarctic Seals (CCAS)614 and the 1980 Convention

of Antarctic Marine Living Resources (CCAMLR).615 Most interestingly, this comprehensive

hard-law regime, while mandatorily covering a broad range of topics, also displays a certain

flexibility. As such, it is able to adapt to change and new problems or to respond to research

improvements.616 This is possible through the incorporation of the decisions made at the

Consultative Meetings of the Parties of the Antarctic Treaty (ATCMs)617, including decisions

adopted by various groups within it.618

§ 2. THE 1959 AN TARCTI C TRE ATY

After the 1957-1958 International Geophysical Year (IGY) had provided for the required

catalyst619, the Antarctic Treaty was adopted in 1959 by twelve states. These are Argentina,

Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the USSR, the

605 MALLOY, 490. 606 ROTHWELL (2012), 358. 607 Ibid. 608 MALLOY, 490. 609 MALLOY, 491. 610 For an extensive overview, see MILLER, 468-513. 611 The Antarctic Treaty of 1 December 1959, Washington, United Nations Treaty Series, vol. 402, 71; For more information, see the website of the Secretariat of the Antarctic Treaty: http://www.ats.aq/e/ats.htm, last accessed April 22, 2013. 612 ROTHWELL (2012), 347. 613 Protocol of 1991 on Environmental Protection to the Antarctic Treaty, Madrid, International Legal Materials, vol. 30, 1455. 614 Convention for the Conservation of Antarctic Seals of 1 June 1972, London, United Nations Treaty Series, vol. 1080, 175. 615 Convention on the Conservation of Antarctic Marine Living Resources of 20 May 1980, Canberra, United Nations Treaty Series, vol. 1329, 47; ROTHWELL (2012), 347. 616 Cf. MALLOY, 495. 617 ROTHWELL (2012), 347. 618 LENNON, 32; MALLOY, 488. 619 ROTHWELL (2012), 346-347.

PART II, CHAPTER 1

58

UK and the US. Interestingly, Canada became a Non-Consultative Party in 1988620, hence

maintains a stake in both the Arctic's and the Antarctic's governance frameworks.621 The AT

saw the light of day as an instrument to promote peace and international cooperation in the

Antarctic622 and to peacefully continue scientific research.623 As such, it was a preventive

agreement to avoid conflicts and the spread of a nuclear arms race.624 However, this original

purpose of the AT has evolved, nowadays also and primarily encompassing environmental

protection and resource conservation.625

The Convention is based upon three main principles626: non-militarisation (art. I), nuclear-

weapon free (art. V) and unrestricted scientific research (arts. II and IX)627. With respect to

the latter, it encourages cooperation amongst nations engaging in scientific research628.

Especially relevant for the purposes of this paper, is the fact that the AT freezes all

sovereignty claims for the duration of its enforcement, while guaranteeing their renewal

upon dissolution of the Treaty (art. IV).629

Such claims have been made by Argentina, Australia, Chile, France, New Zealand, Norway

and the UK, based on a variety of legal grounds, albeit in most cases "of rather dubious

quality".630 The freezing of these claims prevented future conflict over the control of

potential resources and ensured peace in the Antarctic region.631 As such, this option has

been considered as a solution to solve the current 'Scramble for the Arctic'.632

§ 3. THE 1991 MAD RID PRO TO COL

As the AT has limited provisions with respect to environmental and resource management

from a contemporary point of view, it was supplemented by the Madrid Protocol, the CCAS

and CCAMLR.633 Most interestingly, all of these three instruments "sought to manage a

variety of environmental issues in the Southern Ocean, notwithstanding the absence in most

instances of recognised state sovereignty".634

The importance of the 1991 Madrid Protocol to the AT, lies in the fact that it basically

"transformed the [ATS] from a Cold War era anti-arms race agreement to an environmental

protection one".635 This was accomplished by using the goals set out in the 1959 AT to

designate Antarctica as a natural reserve, devoted to peace and science (art. 2).636 This way,

the unique position of the Antarctic continent and the Southern Ocean circumscribing it was

620 For more information, see the website of the Canadian Ministry of Environment: https://www.ec.gc.ca/international/default.asp?lang=En&n=B6954981-1, last accessed April 21, 2013. 621 ROTHWELL (2012), 359. 622 LENNON, 32. 623 MALLOY, 488. 624 LENNON, 33. 625 MALLOY, 488. 626 Cf. ROTHWELL (2012), 347. 627 MALLOY, 488. 628 LENNON, 33. 629 Cf. ROTHWELL (2012), 347-348; SHAW, 536. 630 SHAW, 535-536. 631 LENNON, 33. 632 MALLOY, 495. 633 ROTHWELL (2012), 347. 634 ROTHWELL (2012), 353. 635 LENNON, 33 636 MALLOY, 489; LENNON, 33.

PART II, CHAPTER 1

59

recognised.637 Moreover, in this respect the Protocol emphasised the importance of the

abovementioned ecosystem approach638 (art. 3). Indeed, the Protocol aims at a

comprehensive protection of the Antarctic environment and dependent and associated

ecosystems.639 More particularly, the protection of the Antarctic ecosystem was deemed to

serve all mankind's interests.640 This was supplemented by a ban on any activity relating to

the Antarctic mineral resources, other than scientific research (art. 7).641 For that matter, it

is important to note that safeguards against the modification of art. 7 are built in (art.

25(5)).

This provision is of the utmost relevance for the purposes of this paper. After all, it will be

clear to the reader that the Arctic cannot be treated exclusively as a nature preserve like

Antarctica642. Indeed, a ban on use or access to the Arctic's resources is not practical or

possible given the reliance indigenous peoples and Arctic states already have on these

resources.643 With respect to the Arctic, reference should be made in this context to the

provisions of Part XI of the UNCLOS relating to 'the Area'. These provisions declare that all

rights in the resources of the Area are vested in mankind as a whole. This implies that no

state can claim or exercise national sovereignty or sovereign rights over this zone (art.

137(1-2)). As 'the Area' is proclaimed the 'common heritage of mankind'644, this means that

activities performed in the Area have to be carried out for the benefit of mankind as a whole

(art. 140) and exclusively for peaceful purposes (art. 141).

The Protocol has been supplemented by at present six Annexes (Annex VI not having

entered into force yet).645 These relate to procedures for environmental impact assessments

(EIA; Annex I), measures for the conservation of flora and fauna (Annex II), procedures for

waste disposal and management (Annex III), the prevention of marine pollution (Annex IV,

working in tandem with MARPOL), the designation and management of specially protected

and managed areas (Annex V), and finally, liability arising from environmental emergencies

(Annex VI).646

§ 4. THE 1972 CCAS AND THE 1980 CCAMLR

The Convention for the Conservation of Antarctic Seals (CCAS) and the Convention of

Antarctic Marine Living Resources (CCAMLR) regard the protection of seals, resp. the

overfishing of krill, the basis of the Antarctic's food chain.647 Especially the CCAMLR has

been, at the time, a "groundbreaking international instrument", thanks to its ecosystem and

637 LENNON, 33. 638 Ibid. 639 MILLER, 511. 640 LENNON, 33. 641 MALLOY, 489; For more information, see the website of the Secretariat of the Antarctic Treaty: http://www.ats.aq/e/ep.htm, last accessed April 22, 2013; SHAW, 538. 642 MALLOY, 499. 643 MALLOY, 501. 644 SHAW, 533. 645 See the website of the Secretariat of the Antarctic Treaty for more information: http://www.ats.aq/e/ep.htm, last accessed April 22, 2013. 646 MALLOY, 489. 647 MALLOY, 490.

PART II, CHAPTER 1

60

precautionary approach.648 Moreover, it has continued to play a pivotal role and evolve ever

since.649

Besides these two conventions which help further protect the region650, other international

agreements applicable to or specifically applied in the Southern Ocean or to species found

therein exist as well.651 These instruments range from purely scientific and independent

organisations to multilateral inter-governmental forums652, many of which are concerned

with the Antarctic's environmental well-being.653 In particular one could think of the 1946

International Convention for the Regulation of Whaling (ICRW)654 and the 1992 Convention

on Biological Diversity (CBD).655 Also, there is the 1992 United Nations Framework

Convention on Climate Change (UNFCCC).656 Moreover, these instruments supplement the

UNCLOS framework with respect to the Arctic as well.657 However, the scope of this paper

does not allow to further elaborate on this.

648 ROTHWELL (2012), 354. 649 Ibid. 650 LENNON, 33. 651 For a list of such agreements, see MILLER, 513. 652 MILLER, 486. 653 Ibid. 654 International Convention for the Regulation of Whaling of 2 December 1946, Washington, United Nations Treaty Series, vol. 161, 72; MILLER, 486; ROTHWELL (2012), 354. 655 ROTHWELL (2012), 354. 656 ROTHWELL (2012), 355. 657 ROTHWELL (2012), 354.

PART II, CHAPTER 1 - CONCLUSION

61

CONCLUSION

he analysis made in this first chapter asserted that the law of the sea fully applies to

the Arctic, as the latter can essentially be defined as an ocean. On the basis of this

elementary yet crucial insight, it was illustrated that the legal regime for Arctic

maritime shipping comprises an intricate multi-layered framework.658 Viewed from the

perspective of vessel-source pollution as a threat to the Arctic marine environment and

biodiversity, this framework consists of complex global and national legal regimes.659 Also,

there is an important regional playing field.

The global (international) component of this architecture, characterised by efforts to

promote harmonisation and uniformity660, plays a predominant role. This is explained by

the very nature and function of maritime shipping. Indeed, the latter is "essentially an

international tool in the service of global trade".661 Within the international sphere, on the

one hand the UNCLOS can be considered a cornerstone, balancing the interests of coastal,

flag and port states throughout its maritime zones. Up to present, one of the coastal states to

the NWP, the US, has not ratified this extraordinary law-making treaty. However, the impact

of this fact seems limited given the customary nature of many of its provisions. On the other

hand, the general framework provided by the UNCLOS is supplemented by a range of

mandatory as well as non-mandatory international instruments (particularly established

through the IMO). As such, the analysed framework can be described as an "institutional

architecture (...) of a legal and political order dominated by sovereignty and jurisdiction, to a

large extent embedded in international agreements where the [UNCLOS] constitutes the

centrepiece".662 However, these agreements are rarely tailored to the Arctic and are often

not ratified by all Arctic states.

Besides the global component, there is also the patchwork quilt of the domestic laws and

regulations of the Arctic states. Among these, Canada seems particularly relevant with

respect to the NWP. This stance is reflected in the point of view expressed by the 2008

Ilulissat Declaration. Here, it is stated that national action by the five Arctic coastal states is

the best way to implement the Arctic's legal framework. Most interestingly, Canada seems to

have played a leading role in this field, paving the way towards an 'Arctic Article' (art. 234

UNCLOS) with its pioneering Arctic Waters Pollution Prevention Act. As the only provision

of the UNCLOS explicitly dealing with ice-covered areas, art. 234 offers opportunities for

Arctic coastal states through extensive powers. However, it has also been considered as 'a

witch's brew'.663 As such, looking ahead to the next part of this paper, we have wondered

whether we are still lost at sea if the only article specifically applicable to the Arctic does not

really provide clear and firm guidance.664

Finally, in between the international and domestic stage, the regional level allows for a more

concrete and policy-oriented approach and cooperation among the Arctic players. This is

658 EU Commission, Summary Report, 17. 659 Cf. AMSA, 67. 660 Ibid. 661 Ibid. 662 HOEL, 448. 663 FRANCKX, 415, referring to LAMSON, C., "Arctic Shipping, Marine Safety and Environmental Protection", Marine Pol'y 1987, (3) 4. 664 FRANCKX, 416.

T


62

possible trough various entities and instruments665 - without however undermining the

primacy of the international regime established by the IMO.666 In this respect, it can be

recalled that non-legally binding cooperation is important, particularly in the context of the

Arctic Council.667 As such, the Council has evolved to an effective and influential network for

significant initiatives with a marine dimension. These include both important assessment

work and non-mandatory instruments. However, its capacity as a promoter of soft law, the

minor role of the US within the Council and the limited consensus reached in the 2008

Ilulissat Declaration seem to cast doubts on its position.

All in all there seems to be a dearth of mandatory international standards specifically

designed for navigation in the Arctic. The same can be said for voluntary guidelines as

well.668 This becomes especially clear when comparing the soft-law based Arctic

'hodgepodge'669 to the binding Antarctic Treaty System. Indeed, such a comparison leaves

the impression that the Arctic's regime has lagged behind the Antarctic's in protecting its

environment.670 This has led the AMSA to the conclusion that in order for this amalgam of

international, regional and national regimes to be effective, "(...) a common understanding of

those regimes, along with enhanced regional cooperation in ocean management and greater

participation by Arctic states in the global international maritime conventions will be

needed".671 Furthermore, it has stated that in order to protect the Arctic marine

environment, the existing regimes will need to be strengthened by the Arctic states and the

international community.672 Indeed, it has been remarked that, while the UNCLOS "creates a

regime for the regulation of myriad law of the sea issues that are presently confronting the

Arctic (...), what the [UNCLOS] does not adequately regulate may be more important than what

it does regulate".673

Needless to say, this statement inevitably leads to the question whether the play that is

currently put to the Arctic scene, with a leading part for the UNCLOS, suffices to adequately

meet this unique region's needs. Before briefly elaborating on this question however (cf.

Part III), the regime that was sketched above in general terms, requires some sophistication

specifically with respect to the NWP. Indeed, some elaboration on the disputed legal

qualification of these waters is necessary in order to obtain a more complete and detailed

insight in the legal surroundings of the Canadian backyard. Moreover, such an analysis fits in

with the focus on vessel-source pollution. After all, one thing is certain when it comes to the

interplay between environmental concerns (e.g. oil spills such as the Exxon Valdez incident)

and the uncertainty over Arctic sovereignty: "[t]he possible legal battles will only lengthen

the clean-up process, thereby jeopardising the environment for a longer period of time".674 This

will therefore be addressed in Chapter 2.

665 HOEL, 446. 666 EU Commission, Summary Report, 17. 667 HOEL, 448. 668 AMSA, 67. 669 MALLOY, 481. 670 Ibid. 671 AMSA, 67. 672 Ibid. 673 ROTHWELL (2012), 359. 674 FARRENS, 665.


63

CHAPTER 2. DEFINING THE STATUS O F THE NORTHWEST PASSAGE

INTRODUCTION

n fact, the debate over the NWP is nothing more or less than a contemporary reflection

of the perpetual tension in the law of the sea between mare liberum and mare

clausum.675 Nevertheless, from a legal point of view, an impressive box of inventive and

sophisticated tricks has been opened between predominantly the US and Canada.

Unfortunately however, this turned out to be a box of Pandora: both parties in this story are

still on thin ice in legal terms.

On the one hand, Canada claims exclusive Canadian sovereignty over the NWP for all

purposes, hence including exclusive control over navigation and transit of vessels.676 More

particularly, on the Canadian side of the border the view is taken that foreign vessels in the

NWP are required to a priori request and receive Canada's permission to use the Passage.677

Legally speaking, there are numerous ways to justify such a claim to control over a territory,

and Canada has provided an excellent example of this with respect to the NWP.678 The

obvious problem here is that these different doctrines may result in different outcomes679,

which gave rise to the interesting conclusion that Canada's claim over the NWP affirms the

need to develop a strong and clear method to resolve such disputes.680

More particularly, this claim is explained with the argument that the waters of the Canadian

Arctic Archipelago are internal waters. This argument essentially relies on a twofold

foundation. In first instance, Canada took a historical approach in an attempt to solve this

territorial dispute, as nations often do.681 More particularly, Canada has continuously

reinforced its claim to sovereignty by characterising these waters as historic internal

waters.682 That this notion has been dubbed "an orphaned offshore international legal

regime"683 already gives a good idea of the difficulties Canada has experienced under this

approach. In second instance, Canada has established straight baselines in 1985 around the

outer perimeter of its Archipelago with the purpose of defining the outer limit of its alleged

historic internal waters.684 Moreover, Canada has also taken a historic approach to reinforce

its straight baselines claim by relying upon a historic consolidation of title.

On the other hand, it became clear that the Canadian perception was not shared on the other

side of the Canadian-US border, when commercially significant quantities of oil were

discovered in northern Alaska in 1968. While this provided the economic incentive, the

voyage of the Manhattan in 1969 demonstrated that the required technology was

675 Cf. OXMAN, 839. 676 HOWSON, N.C., Note, “Breaking the Ice: The Canadian-American Dispute over the Arctic’s Northwest Passage”, Colum. J. Transnat’l L. 1987-1988, (337) 354-355 (hereinafter HOWSON); MCDORMAN (2010), 227; PHARAND

(2007), 4; READ, 413. 677 MCDORMAN (2010), 230. 678 FARRENS, 667. 679 Ibid. 680 Ibid. 681 Ibid. 682 Cf. JENSEN and MOE, 12. 683 SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries", 45-46, referring to MCDORMAN. 684 PHARAND (2007), 11; MCDORMAN (2010), 231.

I


64

available.685 Admittedly, the US does recognise Canada's sovereignty over its Arctic

islands686 and it even recognises Canadian jurisdiction over the waters of the NWP.687

However, the US contends that this jurisdiction "(...) does not extend to enacting and

enforcing laws that would deny or significantly hinder the travel of vessels through the

Passage".688 More particularly, the US holds the opinion that the NWP is a strait used for

international navigation. This would imply a guaranteed and non-suspendable right of

transit passage (art. 38) for all countries.689

However, both for the purposes of this paper and in practice, this antagonism should

immediately be nuanced. For the purposes of this paper it should be understood that the

Canadian-US legal positions are not an either/or situation.690 This will be further explained

in the following as the 'middle ground solution'. In practice this should be nuanced in the

sense that both North-American neighbours have had significant success in managing their

differences.691 Indeed, Canada has always indicated that the NWP is open to vessel traffic,

provided that Canadian domestic law is respected.692 The US Government on the other hand,

has advised its merchant ships compliance with Canada's Arctic legislation on vessel

standards. Moreover, the US has at no time attempted to physically assert its perceived

rights in a public manner.693 The aforementioned 1988 bilateral agreement between Canada

and the US serves as the icing on the cake in operational and political terms, without

however actually resolving the underlying legal differences.694

In the this chapter, the sustainability of these different positions will be analysed. Firstly, the

question is asked whether the waters of the Canadian Archipelago can be considered

internal qua historic internal waters. Also, the question whether there is any legitimacy in

the argument of historic consolidation of title is posed. Secondly, a closer look is taken at

Canada's Arctic straight baselines. In this respect, special attention is paid to the

applicability of the provisions of the UNCLOS in the case of the NWP. Further, the Canadian

geographic situation and the actual construction of the baselines is considered. Thirdly, the

question is asked whether the waters of the NWP itself, independently from the surrounding

waters of the Canadian Archipelago, might have gained (or might gain in the future) the

status of a strait used for international navigation. In fourth and last instance, the debate

surrounding the NWP is put into perspective by considering the present-day political

realities of the North-American continent. After all, law and politics can be seen as two sides

of the same coin, so the ultimate value of the legal arguments has to be seen in a broader

context.

685 READ, 417. 686 ROACH, J.A., "International Law and the Arctic: A Guide to Understanding the Issues", Sw. J. Int'l L. 2008-2009, (301) 309 (hereinafter ROACH). 687 MCDORMAN (2010), 227. 688 KRASKA, J., "International Security and International Law in the Northwest Passage", Vand. J. Transnat'l L. 2009, (1109) 1127; MCDORMAN (2010), 228. 689 Cf. MCDORMAN (2010), 228; READ, 414. 690 MCDORMAN (2010), 231. 691 MCDORMAN (2010), 229. 692 MCDORMAN (2010), 227. 693 MCDORMAN (2010), 229. 694 Ibid.

PART II, CHAPTER 2

65

1. THE CANADIAN HISTORIC APPROACH

1.1 HISTORIC INTERNAL WAT ERS

§ 1. CON TE X T

Even before the Manhattan incident of 1969 gave birth to Government Statements on the

waters of the Canadian Archipelago695, assuring historic title had already become a fixation

of Canadian governments. In fact, this tendency has surfaced as early as 1953.696 However,

the first official, and in any case the clearest and most precise697, claim of internal waters on

a historical basis saw the light of day in 1973.698 This proclamation has been repeated over

the following years, most notably in 1987699. Before 1973 these troubled waters do not

appear to have been considered as internal by Canada. This is evidenced implicitly, for there

would have be no need for the abovementioned AWPPA if these waters had previously been

considered as such.700 The purpose of this claim is clear: a successful claim of historic

internal waters would result in complete sovereignty for the coastal state, without a right of

innocent passage for foreign vessels.701 Even if the NWP would meet the criteria of a 'strait

used for international navigation' (cf. infra), this regime would trump any transit rights.702 In

sum, historic internal waters are granted the same status as the coastal state's internal

waters and are considered an integral part of the national territory.703 However, by invoking

this doctrine Canada got lost in what has been called one of the more nebulous areas of

international law.704 As such, there is not only the question whether the waters of the

Canadian Archipelago meet the prerequisites, but even the validity of the theory itself has

been contested.705

§ 2. LEG AL BASIS OF THE TH EO RY OF HIS TORIC IN T ERN AL W ATERS

As a historical claim, the idea of historic internal waters is ultimately derived from the

principle 'first in time, first in right' (‘prior tempore potior iure’).706 More specifically, it

seems to have originated from "a combination of the notions "historical consolidation" of title

as derived from the Anglo-Norwegian Fisheries case, the established legal regime of historic

bays, and the established legal principle of acquisition of territorial sovereignty by means of

occupation".707 Others have particularly stressed that the genesis of this theory lies in the

19th-century enlargement of the doctrine of historic bays by states with large bays closely

linked to land, such as the Canadian Hudson Bay.708

695 Cf. BYERS and LALONDE, 1153 (see in particular at note 116); MCDORMAN (2010), 231. 696 HOWSON, 364. 697 MCDORMAN (2010), 231. 698 PHARAND (2007), 11; READ, 429. 699 PHARAND (2007), 12. 700 PHARAND (2007), 11. 701 PHARAND (2007), 6. 702 MCDORMAN (2010), 231. 703 LALONDE, S., "La Frontière Maritime dans l'Archipel Arctique: Un Garde-fou Essentiel pour le Canada", Annuaire Français de Droit International, vol. 53, 2007, (609) 623 (hereinafter LALONDE (2007)). 704 SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries", 45. 705 KETTUNEN, P.A., "The Status of the Northwest Passage under International Law", Det. C. L. Rev. 1990, (929) 967 (hereinafter KETTUNEN). 706 FARRENS, 669; JARASHOW, M., RUNNELS, M.B. and SVENSON, T., Note, “UNCLOS and the Arctic: The Path of Least Resistance”, Fordham Int'l L.J. 2006-2007, (1587) 1614 (hereinafter JARASHOW et al.). 707 KETTUNEN, 965. 708 PHARAND (2007), 5; ROTHWELL and STEPHENS (2010), 48.

PART II, CHAPTER 2

66

In any case, neither the 1958 Geneva Convention nor the UNCLOS establish a legal regime of

historic waters, except for the narrow provisions on historic bays (cf. art. 10(6) UNCLOS).709

Further, there is only a reference to 'historic title' respecting coasts with adjacent or

opposite coasts (art. 15 UNCLOS) and an optional exception with respect to 'historic bays or

titles' (art. 298(1)(a)(i)).710

Ultimately, this legal concept seems to be derived from the ICJ's 1951 Anglo-Norwegian

Fisheries case. In this case, the Court defined the notion of 'historic waters' as "waters which

are treated as internal waters but which would not have that character were it not for the

existence of an historic title".711 To some, this was sufficient to state that the Court has

actually legitimised the doctrine of historic title and its expansion to bodies of water other

than historic bays.712 This was confirmed by others, stating that this doctrine has been

expressly recognised in customary international law.713 However, still other scholars have

contested this opinion, contending that "(...) in defining historic waters, the [C]ourt was not

validating it as a theory, but simply enunciating the concept so as to better understand the

Norwegian claim".714 Interestingly enough, the ICJ later stated with respect to the

prerequisites of this theory that "the matter continues to be governed by general

international law" in the 1982 Tunisia/Libya Continental Shelf case.715 This seems to imply

that this doctrine does form part of international customary law.

§ 3. THE PRERE Q UISITE S AND THEI R APPLICAT ION TO THE CAN ADI AN CASE

A. GEN ER AL

This leaves the question as to what exactly the criteria for a valid historic waters claim are.

Indeed, some have contended that the question how and when the theory of historic waters

should be applied remains devoid of an authoritative answer.716 However, customary

international law seems to provide three generally accepted standards.717 These can be

found in two UN Secretariat documents, namely a Memorandum on Historic Bays dating

from 1957, as well as a Study on the "Juridical Regime of Historic Waters, including Historic

Bays" of 1962.718 Also, these prerequisites are alleged to have been implicitly accepted by

709 KETTUNEN, 967; SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries", 45. 710 PHARAND (2007), 5. This exception was invoked by Canada. 711 International Court of Justice (ICJ), Fisheries case (United Kingdom v. Norway), Merits, Judgement of December 18th, 1951, ICJ Reports 1951, (116) 130 (hereinafter Fisheries case, Judgement); KETTUNEN, 965; PHARAND (2007), 6. 712 READ, 429. 713 Cf. READ, 429; PHARAND (2007), 6. 714 KETTUNEN, 965. 715 International Court of Justice (ICJ), Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Merits, Judgement of February 24th, 1982, ICJ Reports 1982, (18) 74 (hereinafter Continental Shelf, Judgement); MCDORMAN (2010), 232-233; PHARAND (2007), 6. 716 SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries", 46. 717 PHARAND (2007), 7, referring to the definition of BOUCHEZ. 718 "Historic Bays", Memorandum by the Secretariat of the United Nations, U.N. Doc. A/CONF.13/1, 30 September 1957, United Nations Conference on the Law of the Sea: Official Records, vol. 1, 1958, 1-38, available at: http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1958/PreparatoryDocs_vol_I_e.html, last accessed April 15, 2013; “Juridical Regime of Historic Waters, Including Historic Bays”, Study prepared by the UN Secretariat, U.N. Doc. A/CN.4/143, 9 March 1962, reprinted in Yearbook of the International Law Commission, vol. 2, 1962, 1-26, available at: http://untreaty.un.org/ilc/sessions/14/14docs.htm, last accessed April 15, 2013; MCDORMAN (2010), 233; PHARAND (2007), 6.

PART II, CHAPTER 2

67

the ICJ in the 1992 Gulf of Fonseca case.719 Moreover, they have surfaced in numerous

internal US cases.720 As such, it is generally required that (1) the claimant state exercises its

authority over the area, (2) the authority is exercised continuously and effectively over a

substantial period of time and (3) the community of states acquiesces to this exercise of

authority.721

As to the procedural aspect, the burden of proof is on the state invoking the historic title722.

Moreover, this burden is particularly heavy in the sense that the use of a historic title as the

exclusive basis for a claim to maritime territory, is seen as being in derogation to the general

rules.723 For that matter, it is of great importance to realise that the burden of proof is less

stringent in case of an argument on the basis of historic consolidation of title (cf. infra). This

is explained by the fact that in the latter case, history is relied on only to solidify or

consolidate the title resulting from the primary or main basis.724 In case of historic internal

waters however, history serves the role of an exclusive basis for a claim.725 In the Canadian

case, historic consolidation of title is invoked as a subsidiary basis to support the title

allegedly resulting from its straight baseline system established in 1985.726 The role of

history is obviously less far-reaching in the latter case.727

B. EXER CIS E O F EFFECT IVE CONT RO L

The requirement of exercise of authority over the claimed area is in fact the effective control

doctrine, which is often viewed as the most convincing historical claim a nation can make.728

It requires uncontested administrative control of the land and its resident population729,

which is one of the practical elements of sovereignty.730 Nevertheless, this 'effective control'

(i.e. exclusive and effective sovereign rights) varies depending on e.g. the size of the

maritime area claimed, its remoteness, and the degree of use.731

Canada founds its sovereign rights in first instance on the fact that between 1576 and 1859

British explorers mapped the Canadian Archipelago, covering virtually all its waters732, and

that sovereignty was transferred subsequently by Great-Britain in 1880 to Canada.

However, this transfer of ownership is limited to the Arctic islands733, for "(...) neither the

British nor Canadian explorers ever took possession of any part of the Arctic waters, especially

719 International Court of Justice (ICJ), Land, Island and Maritime Frontier case (El Salvador v. Honduras: Nicaragua Intervening), Merits, Judgement of September 11th, 1992, ICJ Reports 1992, (351) 588; MCDORMAN

(2010), 233-234, referring to CHURCHILL and LOWE. 720 MCDORMAN (2010), 233-234, referring to several cases, the most recent one being Alaska v. United States, (2005), 545 U.S. 75. 721 JARASHOW et al., 1615; MCDORMAN (2010), 233; PHARAND (2007), 7, referring to BOUCHEZ. 722 MCDORMAN (2010), 234; PHARAND (2007), 8. 723 READ, 430. 724 PHARAND (2007), 23. 725 READ, 430. 726 FARRENS, 668; GORDY, K.C., "Dire Straits: The Necessity for Canadian Sovereignty in the Arctic Waterways", Fordham Envtl. L. Rev. 2009-2010, (551) 554 (hereinafter GORDY). 727 PHARAND (2007), 23. 728 FARRENS 667; JARASHOW et al., 1615-1616. 729 JARASHOW et al., 1616. 730 KENNAIR, J., “An Inconsistent Truth: Canadian Foreign Policy and the Northwest Passage”, Vt. L. Rev. 2009, (15) 28 (hereinafter KENNAIR). 731 JARASHOW et al., 1616; PHARAND (2007), 7. 732 LALONDE (2007), 623; PHARAND (2007), 9. 733 BYERS and LALONDE, 1146; LALONDE, (2007) 623; PHARAND (2007), 9.

PART II, CHAPTER 2

68

not those of the [NWP]" [emphasis added].734 Indeed, after research of nearly three months,

PHARAND had to admit that these takings of possession were unquestionably confined to

land.735

Further, while it has attempted to strengthen its claims of control (e.g. through the

AWPPA)736, Canada's control over its northern waters has been considered limited and

fairly erratic. An argument supporting this view is the 1985 Canadian Government

statement that no previous Canadian Government had ever defined the specific boundaries

of its internal waters or territorial sea.737 Admittedly, it has been remarked that such a

statement can easily be explained away as partisan rhetoric738, yet it remains a fact that the

US has entered the waters of the NWP numerous times without Canadian authority.739

Indeed, the transits of the Manhattan and the Polar Sea can be recalled, as well as the fact

that foreign submarines freely patrol beneath Arctic ice.740 As such, Captain ROACH (retired)

has confirmed that submerged transits are conducted by the US Navy throughout the NWP

and the Arctic region.741 Respecting the latter, some have defended that it is impossible for a

country to respond to any sovereignty challenge if it has no reason to be aware of it.742

However, this reasoning doesn't make sense: "[t]he choice to allow passage, as an exercise in

sovereignty, is pre-empted by the failure to identify when and how often these transits are

occurring".743 Indeed, it has been pointed out that "[a]lthough this type of action may seem

trivial, it is exactly the type of situation an international tribunal may consider when

determining exclusivity of a nation's control over a piece of land or water".744

C. OV ER A S UBST AN TIAL P E RIO D O F TI ME

Also, the ICJ stated that "historic titles must enjoy respect and be preserved as they have

always been by long usage" [emphasis added].745 The 1962 Study reached the same

conclusion. It states that the "exercise of sovereignty must have continued during a

considerable time so as to have developed into a usage".746 While 'long' and 'considerable'

allow for a certain flou artistique, it his highly doubtful whether a claim made for the first

time in 1973 would pass the test.747 By way of comparison, the usage claimed by Norway in

the Fisheries case extended to about 250 years. What is more, Norway was only relying on

this usage as a subsidiary argument.748

734 PHARAND (2007), 13. 735 PHARAND (2007), 9-10. 736 JARASHOW et al., 1617. 737 JARASHOW et al., 1618. 738 PERRY, M., “Rights of Passage: Canadian Sovereignty and International Law in the Arctic”, U. Det. Mercy L. Rev. 1996-1997, (657) 666 (hereinafter PERRY). 739 JARASHOW et al., 1620. 740 Ibid. 741 ROACH, 312. 742 PHARAND (2007), 37. 743 READ, 430. 744 FARRENS, 668-669. 745 Continental Shelf, Judgement, 73; PHARAND (2007), 7. 746 MCDORMAN (2010), 233. 747 Cf. PHARAND (2007), 93; READ 431. 748 PHARAND(2007), 7.

PART II, CHAPTER 2

69

D. W IT H THE ACQUI ESCEN CE OF FO R EIGN ST AT ES

Finally, the deathblow for Canada's claim based on historic internal waters, is the

requirement of acquiescence by foreign states. Especially important is the acquiescence by

those states that are primarily affected by the claim.749 It can hardly be overlooked that the

US has seized every opportunity to thwart the Canadian Government's actions attempting to

exert control over the NWP.750 Indeed, when Canada took the step to draw straight baselines

around its historic internal waters, the US immediately proclaimed that there is no basis in

international law to support the Canadian claim.751 As no legal basis is mentioned in this

statement, the impression is such that the US objected to the claim, regardless of its precise

legal basis (being historic internal waters or straight baselines).752 When an agreement was

reached on Arctic Cooperation in 1988, it was only upon the condition that "nothing in this

agreement (...) nor any practice thereunder affects the respective positions" of both

neighbours.753 Moreover, it should not be forgotten that the EU (at the time EC) objected to

both the straight baseline system in general, and the historic internal waters claim in

particular.754 These resolute protests alone seem sufficient to defeat the Canadian claim

based on historic internal waters755. After all, a historic title cannot materialise in the

presence of an effective protest on the part of the interested states.756

E. OV ERALL APPR ECI AT ION

In sum, there can be no doubt about the conclusion that "Canada is not in a position to

discharge the heavy burden of proof that it has exercised exclusive jurisdiction over the Arctic

waters for a sufficiently long period of time and with the acquiescence of foreign states,

particularly those primarily affected by its claim".757 The same conclusion has been reached

by many others.758 Moreover, this view is supported by the general trend to restrict claims

to historic waters to relatively confined marine areas that are dominated and often largely

surrounded by a particular state. Taking this into account, it seems most unlikely that the

waters enclosed by Canada's straight baselines, comprising the entire Canadian Archipelago,

can be considered 'confined marine areas'.759

Moreover, it is interesting to note that, in any case, "the strengths and weaknesses of Canada's

litigational position have little bearing on the political realities of Canada's historic internal

waters claim"760. In any case, the significant weaknesses of the historic internal waters claim

makes a negotiated solution more attractive (cf. infra).761 Furthermore, the doctrine of

historic internal waters has lost part of its significance due to the development of straight

baselines to designate internal waters.762

749 Cf. BYERS and LALONDE, 1155; PHARAND (2007), 7. 750 JARASHOW et al., 1619. 751 Cf. PHARAND (2007), 12. 752 MCDORMAN (2010), 232; PHARAND (2007), 12. 753 PHARAND (2007), 12. 754 Ibid. 755 READ, 431. 756 HOWSON, 363. 757 PHARAND (2007), 13; Cf. READ, 431. 758 HOWSON, 365; ROTHWELL, D.R., “The Canadian-U.S. Northwest Passage Dispute: A Reassessment”, Cornell Int’l L. J. 1993, (331) 359 (hereinafter ROTHWELL (1993)). 759 SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries", 46. 760 MCDORMAN (2010), 234. 761 READ, 431. 762 READ, 429.

PART II, CHAPTER 2

70

1.2 HISTORIC CONSOLIDATIO N OF TITLE RESULTING FROM STRAIGHT BASELI NES

§ 1. GENE RAL

Further, Canada usually invokes its straight baselines in conjunction with the doctrine of

consolidation of historic title. The purpose of this is to reinforce or consolidate the title

allegedly arising from the establishment of Canada's straight baseline system.763 As such, the

historic approach and the straight baselines claim meet each other, which is why before

briefly discussing Canada's straight baselines, attention is paid to the notion of historic

consolidation of title.

The first concrete and clear application of the theory of historic consolidation of title can be

found in the 1909 Grisbådarna case of the Permanent Court of Arbitration.764 In this dispute

between Norway and Sweden, the arbitrators considered that awarding the fishing banks

forming the subject of the dispute to only one country, would not have been consistent with

the history of the area. Hence, the special circumstances of the case were taken into

account.765 As mentioned earlier, contrary to the case of historic internal waters, there is no

special burden of proof on the claimant state in this respect766. This means the requirements

are less stringent here.767 Yet, it should be noted that the requirements in the context of

consolidation of title are still further-reaching than the similar criterion of regional

economic interests in the context of straight baselines (cf. infra).768

Generally speaking, this doctrine has been deemed Canada's most effective argument by

some, since it is based on the law of equity.769 In this respect, it can be mentioned that the

law of the sea gives evidence of a commitment to "weigh all relevant circumstances, including

coastal states needs and international community needs, in order to reach an equitable

resolution of [m]aritime claims". Besides this commitment, there is the rule of ‘quieta non

movere'770. This rule reflects the ICJ's view that a state of things which exists and has existed

for a long time should be changed as little as possible. The combination of these two

elements has been considered to solidify Canada's claim.771

However, once again this doctrine seems to be among the more nebulous areas of

international law. Indeed, many scholars don't seem to make a clear distinction between the

criteria for a valid claim of historic consolidation of title and those of the historic internal

waters doctrine. What is more, the commentators that do make a distinction, seem to

emphasise different elements. In any case, it seems clear that for both doctrines virtually the

same elements exist.772 In general, these include firstly the exercise of administrative control

(state authority)773 over the region774. This includes the requirement that the claimant state

763 GORDY, 580; READ, 429-430. 764 Permanent Court of Arbitration (PCA), The Grisbådarna Case (Norway v. Sweden), Hague C. Rep. 1916, 121; JARASHOW et al., 1620; PHARAND (2007), 23. 765 ROTHWELL and STEPHENS (2010), 384-385. 766 PHARAND (2007), 23. 767 PHARAND (2007), 24. 768 PHARAND (2007), 23. 769 GORDY, 580. 770 PHARAND (2007), 24-25. 771 PERRY, 678-679. 772 PHARAND (2007), 24. 773 FARRENS, 668; PHARAND (2007), 24-25. 774 GORDY, 581; JARASHOW et al., 1621; PERRY, 667.

PART II, CHAPTER 2

71

has discovered the land or received transfer of title from the previous sovereign775, i.e. the

most recent nation.776 Secondly, a peaceful possession by the natural inhabitants of the

region for a long period of time is required777. In this context, the vital interests of the

coastal state are taken into account as well.778 Thirdly, the requirement of acquiescence

seems to be reduced to a requirement of 'general toleration'.779

§ 2. EXERCISE OF AD MINISTRATI VE CO N TROL OV ER THE REG ION AND THE RE CEI PT

OF A TI TLE

Once again, Canada's exercise of state sovereignty (hence effective control)780 may be

questioned, particularly taking into account that American influence pervades the North.781

On the other hand, it has been contended that this element was given an extensive

application in the Grisbådarna case782 and that the term 'control' deserves a modernised

understanding in this respect.783 After all - some have contended - "modern methods,

including legislation, necessary military enforcement, and community action, will protect the

Arctic waterways from environmental devastation and terrorism, and therefore, must

comprise the new definition of control".784

Still, the question remains whether Canada meets the criterion of having received transfer of

title from the previous sovereign. On the one hand, it could be argued that the use of the ice

cover of the NWP by the Inuit has bestowed sovereignty on them and that this sovereignty

was subsequently assigned to Canada.785 Indeed, the Inuit strongly believe to be the owners

of the Arctic land786. Moreover, the 1993 Nunavut Land Claims Agreement affirms the intent

of the Inuit to transfer to Canada any rights they might have had over the sea-ice under

international law.787 However, it remains unclear whether indigenous peoples have the

ability to possess or transfer titles to land under international law.788 On the other hand, it

was already explained in the context of historic internal waters that the historic British

takings of possession only related to land territory.

§ 3. PE ACEF UL POSSE SSION B Y THE NATURAL IN H ABI TAN TS OF THE RE GION FO R A

LONG PERI OD OF TIME

It has been observed that the doctrine of consolidation of title has a very flexible nature that

easily encompasses the vital interests of the coastal state and its inhabitants.789 Among these

vital interests are the protection of the biologically productive and ecologically sensitive

region of Lancaster Sound and its vicinity, as well as national security interests.790 Above all,

the requirement of peaceful possession by the natural inhabitants of the region for a long 775 GORDY, 581; JARASHOW et al., 1621. 776 FARRENS, 668. 777 GORDY, 581; JARASHOW et al., 1621; PERRY, 667. 778 PHARAND (2007), 24 and 27-28. 779 PHARAND (2007), 24 and 26-27. 780 Cf. PERRY, 668. 781 PERRY, 668. 782 PHARAND (2007), 25. 783 GORDY, 582. 784 GORDY, 583. 785 BYERS and LALONDE, 1156; GORDY, 582; JARASHOW et al., 1622. 786 GORDY, 581. 787 BYERS and LALONDE, 1156. 788 JARASHOW et al., 1622. 789 PHARAND (2007), 27. 790 PHARAND (2007), 27-28.

PART II, CHAPTER 2

72

period of time, has been considered Canada's strongest argument in this respect.

Admittedly, it cannot be denied that the Inuit have hunted for centuries - if not millennia791 -

in a semi-permanent manner on the ice pack of the NWP and the Archipelago in general.792

As the indigenous inhabitants of the Canadian Arctic, they perceive the Arctic not as a

hinterland, but as their homeland.793 Indeed, the harvesting of marine-related resources

constitute a vital need for the survival and welfare of the Inuit, as well as for the

continuation of their way of life.794 However, the question may be asked whether the

peaceful possession required for the historic consolidation of title can be derived from a

socially impoverished group that has been politically marginalised.795 It cannot be denied

that Canadian policy has seriously challenged the Inuit's traditional way of life in the past.796

As such, the Inuit Relocation, poor economic conditions in the Arctic communities and the

lack of parliamentary representation in prior years cause serious harm to the Canadian

position based on consolidation of title.797 What is more, it appears that serious issues

remain at present (cf. infra).

§ 4. GENE RAL TOLE RATION

With respect to this requirement, it has been pointed out that acquiescence is not required

here in the same way as it is for a claim of historic title. In this context, acquiescence has

been said to mean a sufficiently prolonged absence of opposition on the part of the

generality of states.798 Still, it can be questioned whether this criterion is met, taking into

account the inconsistency in Canada's actions and rhetoric, making its position insecure.799

After all, "Canada could hardly assert continued authority and international acquiescence [or

for that matter general toleration] when the rest of the world, and arguably Canada itself, did

not realise it controlled the waters".800

§ 5. OVERALL APPRECIATION

While the historic internal waters claim may be disposed of beyond any doubt, the

conclusion with respect to the historic consolidation of title seems somewhat less clear. In

this respect it seems interesting to note that the ICJ has refused to ascribe any decisive

weight to historic rights claimed by the parties in the 1984 Gulf of Maine case.801 In any case,

it should be recalled that at most, this argument reinforces the validity under international

law of Canada's straight baselines.802 In other words, even if consolidation of title could be

defended at law, the validity of Canada's application of the straight baseline system would

still have to be demonstrated. As such, Canada in fact attempts to follow in the footsteps of

Norway. Indeed, in the 1951 Fisheries case, the ICJ concluded that Norway's straight

791 See PERRY, 673. 792 JARASHOW et al., 1621. 793 PERRY, 673. 794 PHARAND (2007), 27. 795 PERRY, 673. 796 PERRY, 674. 797 GORDY, 593. 798 PHARAND, 26. 799 KENNAIR, 15. 800 PERRY, 666. 801 International Court of Justice (ICJ), Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Merits, Judgement of October 12th, 1984, ICJ Reports 1984, (246) 341; PHARAND

(2007), 13. 802 Cf. PHARAND (2007), 28.

PART II, CHAPTER 2

73

baselines were the result of the particular geography of its coastline and that its approach

had been consolidated through long, uncontested practice.803

2. CANADA'S ARCTIC STRAIGHT BASELINES CLAIM

2.1 STRAIGHT BASELINES IN THE CANADIAN ARCTIC CONTEXT

After the heavily publicised Polar Sea incident and the accompanying sudden upsurge of

nationalistic sentiment in 1985804, the Canadian Government took drastic legislative

measures to further its claim. By that time, awareness of the mortal weaknesses of the

historic approach taken in 1973 had trickled through in the Canadian Government, under

impulse of the writings of PHARAND.805 Therefore, this time the Government opted for a

different legal approach. On September 10, 1985 (effective as of January 1, 1986), a series of

straight baselines was established around the outer perimeter of the Arctic Archipelago.806

The Secretary of State for External Affairs specified that "[t]hese baselines define the outer

limit of Canada's historic internal waters".807

According to some, the latter, combined with the subsequent Minister's policy statement of

May 21, 1987, implies that the only purpose of the straight baselines was to delineate the

outer limits of the internal waters. In other words, these baselines - according to these

authors - did not serve as a supporting or second legal basis.808 The claim that the waters of

the Arctic Archipelago are internal waters, would therefore be exclusively based on a

historic title.809 However, the status of internal waters (besides the case of waters on the

landward side of the normal baseline, art. 5 UNCLOS) may result from either the acquisition

of historic title or the establishment of straight baselines.810 Further, the historic internal

waters claim has proven to be as solid as fog in Canada's case. Therefore, the establishment

of straight baselines has actually been considered as the current basis for Canada's legal

claim of sovereignty in the North.811 Indeed, it has been pointed out that "Canadian internal

waters and thus sovereignty over the [NWP] might nevertheless be the consequence of an

internationally permissible application of the concept of straight baselines surrounding the

entire [A]rchipelago".812 In brief, historic internal waters and straight baselines are certainly

two distinct theories, invoked with the purpose of supporting the claim that the waters of

the Arctic Archipelago are internal waters.813 Indeed, under the system of straight baselines,

all potential routes through the NWP would be incorporated as internal Canadian waters.814

803 ROTHWELL and STEPHENS (2010), 34. 804 Cf. LALONDE (2007), 627; Cf. MCDORMAN (1986), 623. 805 BYERS and LALONDE, 1156. 806 Cf. JARASHOW et al., 1597; PHARAND (2007), 11. 807 PHARAND (2007), 11. 808 PHARAND (2007), 12. 809 Ibid. 810 PHARAND (2007), 5. 811 PERRY, 663. 812 JENSEN and MOE, 13. 813 Cf. HOWSON, 355; READ, 439. 814 READ, 431-432.

PART II, CHAPTER 2

74

Admittedly, the delimitation of maritime areas through straight baselines remains a

unilateral act.815 However, this does not mean this act may be undertaken without any

reference to international law.816 Indeed, there are important limitations to the application

of this legal tool. These limitations take the form of geographic features that must be

present, as well as certain criteria which must be taken into account when actually drawing

straight baselines.817 In this respect, the same fate seems to have befallen both doctrines in

the case of the NWP. Many (especially American) commentators share the view that

Canada's use of straight baselines might appear controversial from a legal point of view.818

Other (particularly Canadian) scholars, siding with PHARAND, feel in honour bound to defend

the legal validity of Canada's claim at international law.819 What is more, it has generally

been argued that, even admitting the legitimacy of Canada's straight baselines, the right of

innocent passage would still continue to exist (cf. art. 8(2) UNCLOS).820 Indeed, even if the

validity of Canada's baselines is upheld, foreign vessels are still not precluded from using the

Passage.821

Most remarkably however, the author is under the impression that the great majority of

authors, whether American or Canadian, seem to pass over the legal framework of reference

that should govern the analysis of the validity of Canada's straight baselines. While the

UNCLOS seems the obvious answer at first sight, the question isn't at all that simple. Yet,

many authors content themselves with the somewhat imprecise assessment that the

"UNCLOS is a codification of customary international law and therefore binds all states".822 In

doing so, they seem to skip some crucial steps in the legal logic.

2.2 LEGAL FRAMEWORK OF RE FERENCE

§ 1. ORIGIN OF THE LE GAL CON CE PT OF S TRAIGH T BASELINE S

The use of artificial lines to differentiate between the different types of coastal waters had

already clearly emerged by the dawn of the twentieth century.823 However, the practice of

straight baselines was not recognised as a valid principle of international law by the ICJ until

the 1951 Anglo-Norwegian Fisheries case (the Fisheries case).824 In this case the use of so-

called straight baselines to delimitate the territorial sea was recognised by the ICJ for the

first time.825 In other words, just as the doctrine of historic internal waters, this concept is

essentially derived from the Fisheries case.826 Indeed, the Court explicitly recognised that in

some geographic instances, the base-line becomes independent of the low-water mark, and

815 PHARAND, D., “Canada's Sovereignty over the Northwest Passage”, Mich. J. Int'l L. 1989, (653) 661 (hereinafter PHARAND (1989)); PHARAND (2007), 17; SOHN, L.B. and NOYES, J.E., Cases and materials on the law of the sea, Ardsley, New York, Transnational Publishers, 2004, 242. 816 ROTHWELL and STEPHENS (2010), 34. 817 PHARAND, 2007, 17; READ, 432; ROTHWELL and STEPHENS (2010), 43; Cf. SOMERS, 21. 818 JENSEN and MOE, 13; See also KRASKA (2007), 274; ROSTON, 459-462. 819 See BYERS & LALONDE, 1170; PERRY, 664-665; PHARAND, 28. 820 PHARAND (2007), 13. 821 JENSEN and MOE, 13. 822 MALLOY, 482. However, in ROTHWELL and STEPHENS (2010), 51, doubts are expressed in this respect regarding straight baselines. 823 ROTHWELL and STEPHENS (2010), 31. 824 SHAW, 560. 825 ROTHWELL and STEPHENS (2010), 31. 826 Cf. READ, 432.

PART II, CHAPTER 2

75

can only be determined by means of a geometrical construction.827 Within a relatively short

period, the international community has accepted these principles as part of international

law.828 Later on, the use of straight baselines was further legitimised by the codification of

the system in subsequent treaties. Most notably among these were the 1958 Geneva

Convention and the UNCLOS (cf. arts. 4 and 5, resp. 7 and 8).829

Some have contended that the straight baseline method is but a specific instance of a single

principle, rather than something special.830 However, it should be observed that the ICJ

considered this system as an exception, which should be applied restrictively in the 2001

Qatar v. Bahrain case.831 Needless to say, the latter is especially relevant for the analysis of

the Canadian claim.

§ 2. THE Q UES TIO N AS TO THE R ELEV ANT LE GAL F RAME OF REFE RE NCE

A. ST AT E O F T HE R ELEVANT CONV EN TION S

As to conventional international law, the UNCLOS predominantly duplicates all of the core

provisions regarding straight baselines of the 1958 Convention.832 However, it should in

first instance not be forgotten that Canada was not a party to either the 1958 Geneva

Convention, nor the 1982 UNCLOS when it established its Arctic straight baselines in 1985

(effective as of 1986). On the one hand, while the 1958 Convention entered into force on

September 10, 1964 and while Canada signed the Convention on April 29, 1958, Canada

never ratified it. On the other hand, Canada only acceded to the UNCLOS on November 7,

2003. In any case, the UNCLOS didn't enter into force until November 16, 1994.

B. D IFFEREN CES BETW EEN C ONV ENTIO NAL AN D CUST O MARY IN T ERN ATIONAL LAW

Secondly, it should be observed that, despite the alleged equation, some have contended that

there seems to be some subtle yet relevant differences of substance between conventional

international law (as laid down in the arts. 4 and 5, resp. 7 and 8 of the 1958 and 1982

Conventions) on the one hand, and customary international law as it was reflected in the

ICJ's ruling in the 1951 Fisheries case on the other hand.833 True, the ICJ's judgement in the

Fisheries case has been influential in the final text of the 1958 Convention. However, the

later not only sought to codify the existing customary international law, but it also

incorporated some aspects of progressive development of the law.834

More particularly, according to PHARAND, the geographic criteria allowing for an application

of the system of straight baselines seem less strict as they are reflected in the Court's

judgement.835 Indeed, the 1958 and 1982 Conventions (art. 5(1), resp. art. 7(1)) require "a

fringe of islands along the coast in its immediate vicinity" (cf. infra). The ICJ however, seemed

827 Fisheries case, Judgement, 128-129; PHARAND (2007), 14; Cf. SOMERS, 21. 828 Cf. READ, 439; SHAW, 561. 829 LALONDE, S., “Increased Traffic through Canadian Arctic Waters: Canada’s State of Readiness”, R.J.T. 2004, (49) 69-70 (hereinafter LALONDE (2004)); PHARAND (1989), 660-661; READ, 432. 830 PHARAND (2007), 14, quoting O'CONNELL. 831 International Court of Justice (ICJ), Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgement of March 16th, 2001, ICJ Reports 2001, (40) 103 (hereinafter Qatar v. Bahrain, Judgement); Cf. ROTHWELL and STEPHENS (2010), 51. 832 ROTHWELL and STEPHENS (2010), 41 and 50. 833 Cf. PHARAND (2007), 15-17, also referring to BURKE and MCKINNON. 834 ROTHWELL and STEPHENS (2010), 38. 835 Cf. PHARAND (2007), 15 and 28.

PART II, CHAPTER 2

76

satisfied with a coast "bordered by an archipelago, such as the "Skjærgaard"".836 The

difference seems to be that an 'archipelago' simply refers to "a group of islands, regardless of

the precise configuration of their perimeter", while 'a fringe' seems to refer to a "border or

edging, especially one that is broken or serrated".837 However, it is questionable whether this

geographic aspect is among the differences. Indeed, PHARAND himself had to admit that

"[t]rue, the "Skjærgaard" might be described as a "fringe" (...)".838 Further, this author adheres

to the view that there is a difference in the degree of proximity which is required (cf. infra).

More specifically, he is under the impression that while art. 7 UNCLOS requires this fringe to

be in the immediate vicinity of the coast, this might, within reasonable limits, not be

required under the principles as set out in the Fisheries case.839 Again, this view seems

debateable.

Also, both the 1958 Convention and the UNCLOS contain the provision that if straight

baselines enclose as internal waters areas that had not previously been considered as such,

a right of innocent passage continues to exist (art. 5(2), resp. art. 8(2)). Such a rule was

clearly not upheld by the Court in the 1951 case840: "[i]nherent in the Court's decision was

that the waters landward of the straight baselines would not allow for a right of foreign vessel

navigation".841

All in all, this leads to the conclusion that an assessment of Canada's Arctic straight baselines

according to the principles of customary law as reflected in the Fisheries case would lead to

the best possible result for Canada.842

C. THE LEGAL R EAS ONI NG

Therefore, the question rises whether the treaty provisions of conventional law (more

particularly of the UNCLOS) can be applied to the case of the NWP. If this were not to be the

case, the question rises which were the applicable principles of customary law at the time of

the establishment of Canada's Arctic straight baselines in 1985. On the one hand, it is

possible that the relevant provisions of the UNCLOS reflected the state of customary

international law at that time, when the Convention saw the light of day in 1982. As the

Convention predates Canada's straight baselines claim, it is clear that in this event, the

analysis should depart from the UNCLOS (qua customary law). On the other hand, it is

possible that the relevant principles of customary law as set out in the 1951 Fisheries case

had not yet been superseded by the 1958 and 1982 Conventions in 1985.843 In this case, one

could argue that the analysis should be made exclusively on the basis of the criteria of the

Fisheries case, which seems more favourable to the Canadian position.

§ 3. APPLICABILI TY O F THE UNCLOS

As to the applicability of the UNCLOS, art. 28 of the 1969 Vienna Convention on the Law of

Treaties should be recalled, proclaiming the general rule of non-retroactivity of treaties.

836 Fisheries case, Judgement, 129. 837 Cf. KILLAS, 111; PHARAND (2007), 15. 838 PHARAND (2007), 15; Cf. SHAW, 559. 839 Cf. LALONDE (2004), 80; PHARAND (2007), 15. 840 KETTUNEN, 968; PHARAND (2007), 43. 841 MCDORMAN, T.L., "In the Wake of the "Polar Sea": Canadian Jurisdiction and the Northwest Passage", Les Cahiers de Droit 1986, (623) 630 (hereinafter MCDORMAN (1986)). 842 LALONDE (2004), 79-80. 843 Cf. LALONDE (2004), 79.

PART II, CHAPTER 2

77

This principle is well-established both in domestic and international law844 and is generally

recognised as being reflective of customary international law.845 In any case, Canada

acceded to the Convention on October 14, 1970 and is therefore bound by its provisions by

virtue of the law.

However, art. 28 states that "its provisions do not bind a party in relation to any act or fact

which took place or any situation which ceased to exist before the date of the entry into force of

the treaty with respect to that party". In other words, "(...) even acts or facts the effects of

which extended over a longer period of time, i.e. any continuing situation, do not fall under the

treaty if they ceased to exist before the date of the entry into force of the treaty" [emphasis

added]. This is especially relevant because of what it implies a contrario: "(...) if the situation,

commencing in the past, continues to exist after the treaty's entry into force, it is "caught" by

the treaty".846

It is clear that the Canadian Government, by drawing straight baselines around the Arctic

Archipelago, has attempted to obtain or reinforce the result that the waters enclosed by

them, be internal waters. The author is under the impression that such qualifies as a

continuing situation, characterised by a continued manifestation of Canada's rights up to

present.847 This exercise of rights by Canada appears to qualify as an "active prolongation" of

an earlier situation, and not as a "merely passive continuation" of such a situation.848

Therefore, this situation requires the application of the UNCLOS.

For that matter, it is interesting to note that the same idea surfaces in the context of the

inter-temporal law doctrine, flowing from the Island of Palmas Arbitration case.849 The

general rule in this respect is that "the situation in question must be appraised, and the treaty

interpreted, in the light of the rules of international law as they existed at the time, and not as

they exist today".850 However, in the 1928 Island of Palmas Arbitration case, Judge Huber

made a distinction between the creation of rights on the one hand, and the continued

existence of these rights on the other hand. More particularly it was stated that "(...) the

existence of the right, in other words its continued manifestation, shall follow the conditions

required by the evolution of the law".851 In other words, the continued existence of rights is to

be determined in accordance with the rules of international law as they exist at the time of

the dispute.852 Although this extension of the original doctrine has been criticised853, it has

been deemed logically inevitable, albeit upon the understanding that care should be taken in

applying this rule.854

844 VILLIGER, E.M., Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden, Martinus Nijhoff Publishers, 2009, 381 (hereinafter VILLIGER). 845 VILLIGER, 386. 846 Cf. CORTEN, O. and KLEIN, P. (eds.), The Vienna Conventions on the Law of Treaties, I, Oxford, Oxford University Press, 2010, 724 (hereinafter CORTEN and KLEIN); VILLIGER, 383. 847 Cf. BROWNLIE, I., Principles of Public International Law, Oxford, Oxford University Press, 2008, 125 (hereinafter BROWNLIE), regarding the Island of Palmas case, in the context of the doctrine of inter-temporal law. 848 CORTEN and KLEIN, 724. 849 Cf. BROWNLIE, 124-125. 850 BROWNLIE, 125. 851 Permanent Court of Arbitration (PCA), The Island of Palmas Case (or Miangas) (United States of America v. The Netherlands), Arbitral Award of April 4th, 1928, Reports of International Arbitral Awards (R.I.A.A.), vol. XI, (831) 845; BROWNLIE, 125; KACZOROWSKA, 262; SHAW, 508-509. 852 KACZOROWSKA, 262. 853 Cf. ibid. 854 BROWNLIE, 125.

PART II, CHAPTER 2

78

Note however, that this case relates to the acquisition of land territory and that as such, it

cannot be equated just like that with the acquisition of maritime territory. After all, while

the former relates to the appropriation of res nullius, water is considered the paradigm res

communis.855 Yet, international law has recognised that some bodies of water can be

subjected to the sovereignty of a state through historical use.856

In any case, it would seem that the provisions of the UNCLOS should be the starting point for

the following analysis. What is more, strictly speaking this seems not even a case of

retroactivity. After all, the treaty's binding force only commences as from the date of the

entry into force of the treaty. As such, it does not concern earlier parts of the continuing

situation.857 In fact, this could be seen as a manifestation of the principle of immediate effect,

which seems to be implicitly embodied in art. 28.858

§ 4. CON VEN TIO N AL PRO VISIO NS AS CUS TO M ARY IN TE RN ATI ON AL L AW

A. AR TS . 5(2) AN D 8(2) O F T HE 1958 GEN EVA CON VENTION , R ESP . UNCLOS

Even if this reasoning were not to be upheld, it should be noted that, as was elaborated

above, there is no doubt about the growing consensus that the UNCLOS reflects, for the most

part, current customary law.859 However, the question remains whether its provisions

superseded the customary law as reflected in the 1951 Fisheries case already in 1985. The

fact that the UNCLOS didn't enter into force until 1994 is in se no objection in this respect.

Indeed, declaratory treaty rules apply qua customary law regardless of the entry into force

of the treaty.860 That the relevant treaty rules were actually 'declaratory' is supported by the

fact that the difficulties with respect to the entry into force of the UNCLOS were mainly due

to its controversial Part XI on deep-seabed mining, as mentioned above.

As to the rule of art. 8(2) UNCLOS (cf. art. 5(2) 1958 Convention), PHARAND pointed out that

"(...) a mere 23 states, out of 78 subscribing to the straight baseline system, had accepted to be

bound by the 1958 Convention when Canada established its straight baselines in 1985".861

Invoking the ICJ's Gulf of Maine case of 1984, he concludes that in order to reach an

affirmative conclusion as to the existence of customary law, much more is required.862

However, he seems careful not to mention that art. 8(2) UNCLOS was adopted with little if

any dispute at the Third United Nations Conference on the Law of the Sea.863 Therefore, as

early as 1983 the conclusion had been reached that this provision could be taken to

represent a position generally accepted in customary international law, since there was no

dispute over its inclusion in the UNCLOS.864 Therefore, combined with the above, this

provision would certainly seem to apply to the Canadian case.

855 HOWSON, 362. 856 Ibid. 857 CORTEN and KLEIN, 724; VILLIGER, 383. 858 CORTEN and KLEIN, 724. 859 LALONDE (2004), 80. 860 VILLIGER, 385. 861 PHARAND (2007), 43. 862 Ibid. 863 LALONDE (2004), 79. 864 MCRAE, D.M., "Arctic Waters and Canadian Sovereignty", Int'l J. 1983, (476) 486.

PART II, CHAPTER 2

79

B. AR TS . 4 AN D 7 O F T HE 1958 GEN EV A CON VENTI ON , R ES P . UNCLOS

With respect to the geographic criteria laid down by the Conventions (art. 4 1958

Convention, resp. art. 7 UNCLOS), it has been stated in 1986 that in the prevailing view these

provisions respecting the criteria for the drawing of straight baselines are part of customary

law.865 This view seems to be supported by the fact that "(...) there was a reluctance to modify

the provisions of the [1958 Convention], other than were state practice highlighted gaps.

Accordingly, during the conference and in the resulting convention [i.e. the UNCLOS], minimal

attention was given to the provisions dealing with the delimitation of the territorial sea and

related coastal features"866. As such, the system of art. 7 UNCLOS is considered to be heavily

founded in state practice, the ICJ's decision of the ICJ in the Fisheries case, and in the

continuity given to this regime by the core provisions of the 1958 Convention and the

UNCLOS.867

Also, it should not be forgotten that the Draft Convention of the UNCLOS was approved by

130 states out of the 160 Participants to the Conference868 and that on December 10, 1982,

app. 120 states signed the Convention. Among the latter were e.g. Ireland, China, Egypt and

Ethiopia, all of which had sought to take advantage of the ICJ's decision in the Fisheries case

by declaring straight baselines around portions of their coast.869 On the basis of a US

study870, not separately counting dependent territories, the results are quite impressive in

this respect. Deviating somewhat from the assessments made by PHARAND, this study

mentions app. 55 states that had either made straight baselines claims or adopted enabling

legislation before December 10, 1982. Of these 55 states, app. 45 (including Canada) had

signed the UNCLOS before Canada established its Arctic straight baselines on September 10,

1985.871

While the actual ratification of the Convention was not a fact until 1994, it should be recalled

that according to SOMERS this is mainly due to the often prohibitive objections which had

arisen in a number of industrialised countries against the new deep-seabed mining regime

contained in Part XI.872 Indeed, while the provisions on straight baselines had not been

altered, the UNCLOS already garnered a sufficient number of ratifications on November 16,

1994. This was barely three months after the Implementation Agreement regarding Part XI

had been approved by the UN General Assembly, which happened on August 17, 1994. That

the objections to the UNCLOS were mainly aimed against its Part XI is further supported by

the Declarations that were made by some states upon signature of the UNCLOS. In this

respect, the Declaration made by Belgium can be mentioned. It states that: "(...)

notwithstanding its decision to sign the Convention today, the Kingdom of Belgium is not here

865 MCDORMAN (1986), 630. 866 ROTHWELL and STEPHENS (2010), 40. 867 ROTHWELL and STEPHENS (2010), 43. 868 SOMERS, 10. 869 ROTHWELL and STEPHENS (2010), 40. 870 Limits in the Seas, No. 112, United States Responses to Excessive National Maritime Claims, United States Department of State, Office of Ocean Affairs, Bureau of Oceans and International Environmental and Scientific Affairs, 9 March 1992, 88 p., available at: http://www.state.gov/e/oes/ocns/opa/c16065.htm, last accessed April 15, 2013. 871 Ibid.; Contra ROTHWELL and STEPHENS (2010), 51, doubting the customary-law character regarding straight baselines. 872 SOMERS, 221.

PART II, CHAPTER 2

80

and now determined to ratify it. It will take a separate decision on this point at a later date,

which will take into account of what the Preparatory Commission has accomplished to make

the international régime of the sea-bed acceptable to all".873 All in all, the foregoing seems to

support the idea that even among states subscribing to the system of straight baselines, the

provisions of the UNCLOS, particularly those of art. 7 (and art. 8(2) for that matter), gained

wide acceptance.

§ 5. CON CL USION

In sum, the principles reflected in the 1951 Fisheries case might be somewhat more liberal,

hence more favourable to the Canadian position than the so-called narrow dictates874 of the

UNCLOS with respect to straight baselines.875 However, the provisions of customary law as

reflected in the UNCLOS should serve as the basis for the analysis of the legitimacy of

Canada's claim. Others have further supported this conclusion by stating that the UNCLOS

represents the most efficient mechanism through which to balance the interests of the Arctic

states.876 Also, the reconciliation of these interests has been considered likely to occur

within the context of the UNCLOS.877

2.3 STRAIGHT BASELINES AS TANGENTIAL TO NAVIGA TION RIGHTS

§ 1. GENE RAL

At this point, before briefly elaborating on Canada's baselines, it is of paramount importance

to stress the crucial implication of the applicability of art. 8(2) UNCLOS (cf. art. 5(2) 1958

Convention). After all, "[w]hether or not Canada's straight baselines delimitation would

survive a challenge before the ICJ, it remains somewhat tangential to the actual determination

of rights of passage in the Arctic waters".878 In other words, even if Canada's Arctic straight

baselines would be accepted as valid, there is, in terms of navigation rights, a right of

innocent passage for foreign vessels. Indeed, taking into account art. 8(2), gaining the

qualification of internal waters and the concomitant exclusive sovereignty requires proof of

the fact that the waters of the Canadian Archipelago have not previously been considered as

anything but internal waters.879

§ 2. STRAIG HT BASELI NES DI RE CTL Y CO N TRADICTING CAN AD A 'S PO SITION

In the best case scenario (from a Canadian point of view), Canada's notorious Arctic

baselines may provide a legal basis for the statement that the waters of the Canadian

Archipelago are internal. Yet, this still doesn't mean they have always been internal, before

1985.880 On the contrary, the drawing of straight baselines in fact directly contradicts this

view. After all, there is no point in enclosing waters as internal, if these waters were already

considered as internal waters.881 Indeed, in a House of Commons debate in 1970, the

Minister for External Affairs answered to a question with respect to the drawing of straight

873 The declaration is available at the website of the United Nations Treaty Series (UNTS), see http://treaties.un.org/pages/UNTSOnline.aspx?id=2, last accessed April, 15, 2013. 874 PERRY, 665. 875 Cf. PHARAND (2007), 16, referring to MCKINNON. 876 JARASHOW et al., 1652. 877 READ, 416. 878 HOWSON, 359. 879 HOWSON, 360. 880 HOWSON, 361. 881 Cf. HOWSON, 361.

PART II, CHAPTER 2

81

baselines that "[s]ince obviously we claim these waters to be Canadian internal waters, we

would not draw such lines".882

§ 3. FO REIG N P RO TES T AND OTTAW A 'S O WN IN CONSIS TEN CY BEFO RE 1985

However, in 1985 Canada actually drew such lines. Some have defended that this was not

detrimental to Canada's position, as the purpose of these straight baselines was not to serve

as a separate or subsidiary legal basis to claim these waters as internal. Instead, they were -

allegedly - intended merely as a means to delineate waters that were previously considered

as internal on the basis of a historic title (cf. supra). Still, the inevitable conclusion is that

there is simply no legal basis whatsoever to support the view that the waters in question

were previously considered as internal.

First of all, persistent objections by the US, as well as protests by other foreign governments

concerning Canada's Arctic policy raise serious doubts in this respect.883 In other words,

although from 1973 onwards the claim was quite consistently defended that the waters in

question were historic internal waters, the prerequisites for this assertion are simply not

met (cf. supra). As such, Canada's historic internal waters claim cannot be taken seriously

from a legal point of view, while its argument based on historic consolidation of title could at

most reinforce the validity of its straight baselines.

What is more, not only were the waters of the NWP not previously considered as internal by

foreign nations (in particular the US and the EC), but even Canada itself cannot seriously

pretend to have considered these waters as internal. That is to say, not before 1973, and

when it finally did proclaim statements in this sense in 1973, these lacked a legal basis, as

was illustrated above. Indeed, it is in this respect that Ottawa faces the detrimental effect of

its own 'inconsistent truth'884, i.e. the inconsistent rhetoric of the successive Canadian

Governments ever since the 1950s.885

Despite the assertions that the waters of the NWP are (historic) internal waters in 1973,

1975 and 1980886, in 1957, the then-Prime Minister stated that the Government considered

the waters as Canadian territorial waters.887 PHARAND stated that "[i]t would seem from the

context that the term "territorial waters" was synonymous with what are now called "internal

waters"".888 However, the quality of this argument is debateable.

In any case, after the 1969 Manhattan incident, Canada responded with the 1970 AWPPA,

unilaterally claiming competence to regulate shipping within certain zones.889 As such, the

AWPPA represented a partial jurisdiction claim, instead of the present claim of exclusive

jurisdiction (read: sovereignty).890 This is again a text-book example of Canada's

inconsistency. True, in May 1969 Prime Minister TRUDEAU declared the waters between the

islands in the Canadian Arctic to be 'our own'. However, the Canadian Government stopped

short of asserting Canadian sovereignty over the Arctic waters, TRUDEAU being at pains to

882 HOWSON, 361; LALONDE (2004), 75. 883 LALONDE (2004), 74. 884 The term is adopted from KENNAIR, (15) 15. 885 Cf. HOWSON, 360; LALONDE (2004), 74; For an overview, see KETTUNEN, 972-976. 886 LALONDE (2004), 76. 887 ROSTON, 452. 888 PHARAND (2007), 9. 889 HOWSON, 350. 890 HOWSON, 351 and 354.

PART II, CHAPTER 2

82

distinguish Canada's claim to partial jurisdiction under the AWPPA from a claim to exclusive

sovereignty.891

Further, the second aspect of Canada's response to the crossing of the Manhattan892 was the

so-called 'gate of territorial waters' theory, which gives a mortal blow to Canada's denial of a

right of innocent passage.893 This notion refers to legislation dating from 1970, through

which Canada extended its territorial sea from 3 to 12 nm.894 This was done in order to

create an overlap of territorial waters in certain chokepoints at either end of the NWP

(namely Prince of Wales Strait and Barrow Strait).895 More particularly, the aim of this was

to provide Canada with a legal basis to control access to the Passage.896 The implication of

this was accurately explained in the following: "[b]y implying that the territorial waters at

either end of the [NWP] gave Canada the basis for "undisputed control ... over two of the

gateways to the [NWP]", the Canadian [G]overnment created the negative inference that

whatever ocean space in the [A]rchipelago lay between the two limits of territorial waters

should be considered "high seas"".897 PHARAND further clarifies that since the right of innocent

passage applies to territorial waters in general, it applies a fortiori to territorial waters lying

in straits connecting two parts of the high seas.898 As such, by way of conclusion, it could be

stated that sovereignty is incompatible with a straight baselines regime in the case of the

NWP.899

2.4 CANADA 'S POSITION AS TO VESSEL-SOURCE POLLUTION UNDER ITS

STRAIGHT BASELINES C LAIM : WHAT IS AT STAKE?

§ 1. CAN AD A 'S POSI TI ON UNDE R A V ALID S TRAIG H T BASELI NES CL AIM

A. ENVI RON MEN TAL T HREAT S S EEN AS NO N- IN NOCEN T PASS AGE

Assuming the validity of Canada's straight baselines claim, a right of innocent passage would

still continue to exist. However, this would essentially be the only right foreign vessels are

entitled to, while all the waters within the Archipelago would fall under the exclusive

sovereignty of Canada.900

Interestingly, some have contended that Canada could still defend its position in terms of

vessel-source pollution, invoking the argument that passage that is potentially

environmentally catastrophic is not 'innocent'.901 Admittedly, art. 21(1)(f) UNCLOS

authorises the coastal state to adopt laws and regulations respecting prevention, reduction

and control of pollution to the environment. Art. 21(4) provides that foreign vessels

exercising their right of innocent passage shall comply with all such laws and regulations.

Also, art. 25(2) allows the coastal state to take the necessary steps to prevent non-innocent

passage.

891 LALONDE (2004), 74-75. 892 HOWSON, 350. 893 Cf. HOWSON 361-362. 894 Act to Amend the Territorial Sea and Fishing Zones Act, S.C. 1969-1970, c. 68, s. 1243. The original act may be referred to as the Territorial Sea and Fishing Zones Act, S.C. 1964-65, c. 22. 895 Cf. BYERS and LALONDE, 1152; PHARAND (2007), 42. 896 HOWSON, 355. 897 HOWSON, 361, quoting PHARAND. 898 Cf. PERRY, 665; PHARAND (2007), 42. 899 PERRY, 665. 900 LALONDE (2004), 84. 901 HOWSON, 360.

PART II, CHAPTER 2

83

However, while rendering the offender liable to prosecution, the breach of these laws and

regulations will not make the passage non-innocent as such.902 Also, art. 19(2)(h) only aims

at wilful and serious pollution as an example of prejudicial passage. However, perhaps it

would be possible to categorise such a potential threat under the more general proviso of

art. 19(1), relating to the peace, good order or security of the coastal state. Also, art. 19(2)(a)

may offer a way out, envisaging "any threat or use of force against the sovereignty, territorial

integrity or political independence of the coastal [s]tate". Indeed, Canada has expressed the

view that "any passage threatening the environment of a coastal state cannot be considered

innocent since it represents a threat to the coastal state's security".903.

B. R IGHT S OF T HE COAST AL ST AT E R ESP ECTIN G I NN O CENT P ASS AGE

In any case Canada would undoubtedly retain a very wide measure of control, even if a right

of innocent passage would exist through the waters of the Canadian Archipelago.904 With

respect to vessel-source pollution, in addition to the aforementioned aspects, Canada retains

its prescriptive jurisdiction under art. art. 211(4). Further, reference can be made to art. 22

with respect to sea lanes and traffic separation schemes and art. 23 with respect to

documentation and precautionary measures. Also art. 25(2) and (3) may be mentioned. The

latter provision provides Canada with a broad discretionary power to temporarily suspend

the right of innocent passage.905 More generally, also the provisions of arts. 20, 26(2), 27-28

and 30 offer certain perspectives to Canada.

§ 2. CAN AD A 'S POSI TI ON UNDE R AN INV ALID STRAIG H T BAS ELINES CL AIM

A. THE NWP AS A ST R AIT US ED FO R I NT ER NATIONAL N AVI GA TIO N

Assuming Canada cannot uphold the validity of its Arctic baselines at international law, the

waters of the Canadian Archipelago, traversed by the NWP, are simply a mixture of

territorial sea and EEZ (including contiguous zone). This follows from the principles set out

in Chapter 1.906 However, on the one hand it is possible that the NWP itself (as a strait,

traversing the surrounding waters of the Archipelago) might not exactly have the same

status. More particularly, this possibility would materialise if the US claim were to be

upheld. This would be the case if the NWP itself would be considered to qualify as a strait

used for international navigation and not merely as a legal strait.907 While such a

qualification might not currently apply, there is always the possibility of a future

internationalisation of the NWP.908 This assertion results from what was explained in Part I

and will become clear later on. Indeed, it is possible that a strait is not used for international

navigation or is not navigable. If such as strait comprises the required geographical and legal

components and becomes navigable later on, it may start to be used for international

navigation.909 In case the NWP qualifies as an international strait, the effect would be to

make the right of transit passage (cf. art. 38 UNCLOS) applicable. This would leave Canada

with much less control over foreign ships.910 This also holds true in the assumption that the

902 SHAW, 572. 903 LALONDE (2004), 84. 904 LALONDE (2004), 85. 905 LALONDE (2004), 84. 906 Cf. LALONDE (2004), 96. 907 Cf. PHARAND (2007), 28. 908 PHARAND (2007), 44 et seq. 909 LÓPEZ MARTIN, 57. 910 PHARAND (2007), 44.

PART II, CHAPTER 2

84

waters of the NWP were previously, i.e. before the establishment of straight baselines,

considered as an international strait (art. 35(a) UNCLOS).911

In terms of exercising control over the Arctic waters, the regime of transit passage has been

considered the least favourable to Canada. However, even under this regime, international

law confers on Canada important rights and privileges.912 While the regime of transit

passage was explained above (Chapter 1), the plausibility of a qualification of the NWP as an

international strait will briefly be discussed in the following.

B. THE 'MI DDLE GRO UN D ' SO LUTION

On the other hand, there is also the hypothesis which assumes that neither the Canadian

straight baselines claim, nor the US claim in terms of an international strait are valid. This

position is sometimes called 'the middle ground' in the literature.913 In this case the regimes

applicable to both the territorial sea and the EEZ would apply to each individual island in

the Canadian Archipelago.914 Indeed, on the one hand, the delimitation of a 12-mile

territorial sea around each island would not be sufficient to completely cover all the waters

lying within the Canadian Archipelago.915 On the other hand, there is no doubt that the

entire Archipelago would fall within Canada's EEZ.916

In practice, this would result in the impossibility for foreign vessels to pass through the

NWP without at some strategic points going through Canada's territorial sea.917 This is

linked directly to the so-called 'gate of territorial waters' theory, mentioned above. As such,

Canada would still control access to the NWP, upon the understanding that the Canadian

sovereignty throughout its territorial waters would be limited by (and only by) the right of

innocent passage (art. 17).918 In other words, throughout those waters within the

Archipelago that are territorial waters, the regime of innocent passage would apply. This

would provide Canada in its capacity of coastal state with the concomitant rights. These

relate to both prescriptive (cf. in particular art. 21(1)(f)) and enforcement jurisdiction (cf.

arts. 27-28). However, it would also impose certain duties (cf. art. 24; cf. Chapter 1).

With respect to those waters within the Archipelago that are part of the EEZ, in particular

art. 56(1)(b)(iii) can be recalled with respect to vessel-source pollution.919 In addition,

Canada would be allowed to retain and enforce its jurisdiction on the basis of the AWPPA, as

it was legitimised by the inclusion of art. 234 in the UNCLOS (cf. supra).920 Also it can be

reminded that in these waters freedom of navigation applies (art. 58 j° art. 87). Yet it should

be noted that the freedoms enjoyed by foreign states in the coastal state's EEZ are subject to

greater limitations than on the high seas.921

911 KETTUNEN, 969-970. 912 LALONDE (2004), 103. 913 Cf. LALONDE (2004), 96. 914 Ibid. 915 Ibid., quoting ROTH. 916 LALONDE (2004), 99. 917 LALONDE (2004), 96-97. 918 LALONDE (2004), 97. 919 Cf. LALONDE (2004), 99-100. 920 LALONDE (2004), 96 and 100. 921 LALONDE (2004), 99.

PART II, CHAPTER 2

85

In sum, it is clear that even if Canada's claim to internal waters is dismissed by the

international community, it still retains a wide jurisdiction over the Arctic waters. This

jurisdiction flows from the territorial sea, contiguous zone and EEZ regimes of the

UNCLOS.922

2.5 GEOGRAPHIC PREREQUISITES

§ 1. GENE RAL

Following the Fisheries case, straight baselines can only be used in geographic

circumstances similar (not necessarily identical)923 to those of the Norwegian

'Skjærgaard'.924 The latter is a coastal archipelago along Norway's west coast, consisting of a

whole of islands, islets, rocks and reefs, totalling a number of app. 120,000 formations.925

This complex situation brought the Court to the conclusion that the Norwegian coastline is

of a distinctive nature, lacking a clear dividing line between land and sea.926 Codifying the

principles of the Fisheries case, art. 7 UNCLOS now provides several geographic

circumstances in which straight baselines may be drawn927, two of which are particularly

important. In first instance, art. 7 envisages circumstances where the coastline is "deeply

indented and cut into" (cf. the Norwegian region of Eastern Finnmark). The second

circumstance refers to "a fringe of islands in the immediate vicinity of the coast" (cf. the

'Skjærgaard').928 Further, the 2001 Qatar v. Bahrain case offers a guideline for the following

analysis, suggesting that straight baselines should be applied restrictively, as an

exception.929 Also, the comments of the UN deserve mentioning at this point:"[t]he spirit of

art. 7, in respect of indented coasts and fringing islands, will be preserved if straight baselines

are drawn when the normal baseline and closing lines of bays and rivers would produce a

complex pattern of territorial seas and when those complexities can be eliminated by the use of

straight baselines. It is not the purpose of straight baselines to increase the territorial sea

unduly".930

Despite these general principles, the question whether the Canadian Archipelago with its

total number of app. 73 major islands and 18,114 smaller ones931 can be compared to the

peculiar geography found in Norway, remains the subject of endless debate. Some have

expressed the view that "[n]otwithstanding the overall appearance of the Arctic islands, the

Islands do not resemble the intricate matrix of reefs, inlets, and fjords which necessitated that

Norway draw straight coastal baselines". By consequence, those authors have contended that

Canada could establish traditional baselines with much less effort than Norway.932 Others

however, were under the impression that "[t]he physical characteristics of the coast and of

the [A]rchipelago are such as to make it absolutely impossible to follow the sinuosities of the

922 LALONDE (2004), 103. 923 PHARAND (2007), 14. 924 Cf. ibid.; READ, 432. 925 Fisheries case, Judgement, 127. 926 ROTHWELL and STEPHENS (2010), 33. 927 Ibid.; PHARAND, 14. 928 ROTHWELL and STEPHENS (2010), 43; SHAW, 561. 929 Qatar v. Bahrain, 103; ROTHWELL and STEPHENS (2010), 44 and 51. 930 ROTHWELL and STEPHENS (2010), 44. 931 PHARAND (2007), 15. 932 PERRY, 664; Cf. READ, 433, referring to ROTH.

PART II, CHAPTER 2

86

coast or of the islands (...) and render its necessary to use straight baselines".933 These

differences will surface throughout the following analysis.

§ 2. A CO AST WHI CH I S DEE PL Y INDEN TED AND CUT I N TO

A. THE S EAW AR D CO AS TS O F T HE IS LA N DS O F THE AR CHIP ELAGO AS DEEP LY IN DENT ED

AN D CUT INTO

With respect to the first criterion of art. 7, Judge READ noted that "[t]here are coastal

archipelagoes, deeply indented bays and broken coast lines on the north, east, south and west

coasts of Canada (...)".934 Indeed, it seems a fact that "[m]uch of the island coastline of the

Arctic [A]rchipelago is deeply indented and cut into" [emphasis added]935. However, this does

not suffice to establish straight baselines enclosing the entire Archipelago. That is to say, it

would suffice, but only upon the condition that the word 'coastline' is taken to mean the

seaward coasts of the outer islands of the Archipelago, instead of the northern continental

coast.936 Such has actually been defended by some937. However, others have stated that the

criterion of a deeply indented coast is not applicable in the case of the Canadian Arctic

Archipelago. They contend that this criterion refers to the drawing of baselines from

headland to headland.938

B. COAST AL IS LAN DS AS AN EX T ENSI ON OF T HE MAI N LAN D

In fact, this reasoning seems a manifestation of a concept which is quite apart from coasts to

which a system of straight baselines may properly apply.939 Indeed, this concept does not

necessarily require the use of straight baselines. In the context of this distinctive principle,

the idea is that under certain conditions coastal islands may be treated as part of the

mainland, invoking considerations of geographical association and appurtenance.940

As such, it has indeed been defended that the islands of the Canadian Archipelago can be

seen as "but an extension of the Canadian mainland", just as the ICJ considered the

'Skjærgaard' an extension of the Norwegian mainland.941 PHARAND for example, pointed out

that "[t]he islands and peninsulas of the whole Archipelago are fused together by ice

formations most of the year, to the point where ice and land areas often become

indistinguishable. The Archipelago then transforms itself into an immense rampart, (...)

constituting in effect the outer coast of the country".942

Taking into account the significant reduction of the ice cover (cf. Part I), this argument has

obviously lost part of its vigour. Another aspect that might throw a spanner in the works in

this respect, is the east-west waterway of considerable width called Parry Channel, dividing

the Archipelago in two distinct island groups.943 As such, it seems at least questionable

933 KILLAS, 120, quoting PHARAND. 934 International Court of Justice (ICJ), Fisheries case (United Kingdom v. Norway), Merits, Dissenting Opinion of Judge J.E. READ, ICJ Reports 1951, 193; KILLAS, 110. 935 KILLAS, 109. 936 KILLAS, 110. 937 Cf. ibid.; PHARAND (2007), 16. 938 KETTUNEN, 982. 939 BROWNLIE, 184. 940 Ibid. 941 LALONDE (2004), 71, quoting KILLAS, 113. 942 PHARAND (2007), 16. 943 Cf. LALONDE (2007), 71.

PART II, CHAPTER 2

87

whether the northern half of the Archipelago could be considered an extension of the

mainland.

§ 3. A FRIN GE OF ISL ANDS IN THE IM MEDI ATE VI CINI TY OF THE CO AS T

A. TWO ELEMENTS

With respect to the notion 'fringe of islands', generally two factors are mentioned in the

doctrine. These are the element of proximity and the element of unity (i.e. density or

cohesiveness).944 This is e.g. reflected in the following conclusion that a straight baselines

approach would be supported wherever there is "(...) a tight cluster [unity] of islands which

are closely connected with the mainland [proximity] (...) or where there are a large number of

islands which effectively 'screen' the coast such as in the case of an adjacent archipelago

offshore the mainland" [emphasis added].945 With respect to the last part of this assertion, it

is interesting to note that when PRESCOTT identified the drawing of straight baselines around

offshore archipelagoes as one of the five common breaches of art. 7, he gave the example of

the Islas Galapagos (Ecuador) and the Nicobar and Andaman Islands (India), hence mid-

oceanic archipelagoes.946

B. UNI TY

With respect to the elements of proximity and unity, the former seems the most

problematic. Indeed, on the one hand, the unity of the Archipelago could be defended, i.a.

invoking the interpenetration of land formations and sea areas. Moreover, this

interpenetration may combined with the presence of ice for most of the year, although this

argument is presently losing part of its vigour. Also, there is the argument that from a global

view, Parry Channel does not unduly disrupt the general unity of the Archipelago.947 Yet, the

latter is debateable taking into account the requirement of a large-scale map as the basis for

the analysis and the impression that is gained from such a map (cf. art. 5 UNCLOS).

C. PROXI MI TY

On the other hand however, it could seriously be questioned whether the islands can be said

to be situated in the immediate vicinity of the mainland coast.948 After all, it should not be

forgotten that the Canadian Archipelago is the largest island group of the world, covering 1.3

million km².949 More particularly, the Archipelago appears to be a massive triangular

configuration composed of islands lying off the mainland, stretching far north. As such, these

islands do not appear to follow the general east-west direction of the Canadian coast.950 The

latter is especially relevant in the light of the general direction criterion (cf. infra). PHARAND

was at pains to defend that this impression is in fact merely due to what he calls the

'considerable distortions' conic projections of the Earth are fraught with when it comes to

higher latitudes.951 However, in the author's opinion there is no projection that could ever

possibly support PHARAND'S conclusion that in fact the Archipelago "is fully integrated to the

944 KILLAS, 12; Cf. PHARAND (2007), 16; Cf. READ, 433. 945 ROTHWELL and STEPHENS (2010), 44. 946 ROTHWELL and STEPHENS (2010), 50, referring to PRESCOTT. 947 PHARAND (2007), 16. 948 KILLAS, 113; READ, 433; Cf. WALKER and NOYES, 258, regarding the definition proposed for a 'fringing reef'. 949 LALONDE (2004), 53. 950 KETTUNEN, 983. 951 PHARAND (2007), 18-19.

PART II, CHAPTER 2

88

mainland, and (...) is orientated east and west in the same general direction".952 True, the

islands at the basis of this triangle abut the continental coast, which in turn even advances

into the heart of the Archipelago through Boothia Peninsula.953 However, the apex of the

triangle, i.e. the northern point of Ellesmere Island, is located less than 900 km from the

geographical North Pole954. This has led to the conclusion that the Canadian Archipelago

surely is not a fringe of islands along the coast in its immediate vicinity.955

Yet, it should be noted that some have attempted to counter this argument by defending that

"[t]he whole is greater than the sum of the parts. A fringe is created by islands fringing other

islands which in turn fringe the coast".956 However, one could wonder what then is left of the

meaning of the criterion 'in the immediate vicinity of the coast'...

§ 4. APPRAIS AL

Taking into account the imprecise terminology of art. 7, it will be clear to the reader that the

straight baseline system is full of subjective aspects. These allow the coastal state a

considerable margin of appreciation when it comes to the interpretation of the provisions of

the UNCLOS.957 In support of the Canadian position, some have defended that it would be

both unnecessary and inappropriate to apply the subjective rule of a art. 7(1) in a legalistic

and formalistic way.958 Yet, this seems somewhat debateable in the light of the ICJ's findings

in the Qatar v. Bahrain case. Also, some have contended that while perhaps not under

conventional law, the geography required for the use of straight baselines is most certainly

present under customary law.959 However, the precise differentiation between the 1958 and

1982 Conventions on the one hand, and the principles flowing from the Fisheries case on the

other hand, seems quite nebulous in this respect.

All in all, it remains a factual question whether or not the Canadian case meets the

prerequisites and different positions can be defended. Ultimately, Canada should perhaps be

given the benefit of the doubt in this respect, taking into account the rather broad margin of

appreciation that seems to flow from the UN statement mentioned above.

2.6 CANADA 'S APPLICATION OF THE STRAIGHT BASELINES SYSTEM

§ 1. GENE RAL

However, even assuming that the required geographic features are present in the Canadian

Archipelago, such still does not give the coastal state a unilateral right to draw straight

baselines. This is explained by the existence of additional criteria which must be taken into

account.960 Indeed, in general terms, the ICJ stated in the Fisheries case that "[t]he

delimitation of sea areas has always an international aspect; it cannot be dependent merely

upon the will of the coastal [s]tate as expressed in its municipal law".961 In this respect, some

952 PHARAND (2007), 19. 953 PHARAND, 16; READ, 433. 954 KILLAS, 113; PHARAND (2007), 15. 955 KETTUNEN, 983. 956 LALONDE (2004), 71, quoting KILLAS, 113. 957 ROTHWELL and STEPHENS (2010), 44; Cf. SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries", 45. 958 LALONDE (2004), 71, quoting PHARAND, D., "The Legal Regime of the Arctic: Some Outstanding Issues", Int'l J. 1984, (742) 780. 959 PHARAND (2007), 17, also referring to BURKE and MCKINNON. 960 ROTHWELL and STEPHENS (2010), 43. 961 Fisheries case, Judgement, 20.

PART II, CHAPTER 2

89

authors most interestingly highlighted the history of jurisdictional disputes in the Arctic,

suggesting that the boundaries may be characterised as political reactions to threats on

Canadian sovereignty.962 This has led some to the conclusion that Canada's Arctic straight

baselines can be considered unilateral delimitations expanding its territorial sea. As such,

they seem to have been implemented for the exact use the Court was attempting to deter.963

Others however, have countered this argument invoking Canada's alleged "desire and

genuine ability to preserve the Arctic". This desire is allegedly translated into a commitment

that "is unlike anything the international community has seen from Canada previously".964 Yet,

as mentioned above, the 'genuine' nature of Canada's intentions seems open to debate (see

also infra).

In any case, the ICJ formulated three criteria in the Fisheries case. These regard (1) the

general direction of the coast, (2) the close link between land and sea (the so-called sea to

land ratio) and (3) certain economic interests evidenced by long usage.965 Interestingly,

some have argued that these criteria are more in the nature of guidelines, since they may be

adapted to diverse situations, invoking the words of the Court.966 However, it should not be

forgotten that these factors were subsequently codified in the UNCLOS (see art. 7(3), resp.

7(5))967, preserving almost the exact language of the Fisheries case.968 While indeed

allowing for a significant measure of appreciation969, these criteria are as such beyond any

doubt legally binding prerequisites. More particularly, the criteria respecting the general

direction of the coast and the sea to land ratio are mandatory and have to be met

cumulatively, while the third criterion is optional (cf. art. 7(3) and (5)).970

§ 2. THE GEN ERAL DI RECTION OF THE CO AS T

A. GEN ER AL O BS ERV AT IONS

Codifying the words of the Court in the Fisheries case, art. 7(3) states that "the drawing of

straight baselines must not depart to any appreciable extent from the general direction of the

coast".971 Again this appears to be a flexible and subjective concept, "devoid of any

mathematical precision"972. As such, it allows for a certain margin of appreciation.973 In any

case the Court has specified that "the method of base-lines (...) within reasonable limits, may

depart from the physical direction of the coast". This caused PHARAND to be under the

impression that these principles authorise a divergence as long as it is not equivalent to a

'distortion'974. However, attention should be paid to the Separate Opinion of Judge HSU MO in

the Fisheries case. In the latter it was clarified that "[t]he expression "to conform to the

general direction of the coast" (...) should not be given a too liberal interpretation (...). It

cannot be interpreted to mean that Norway is at liberty to draw straight lines in any way she

962 PERRY, 664. 963 PERRY, 665. 964 GORDY, 595. 965 Fisheries case, Judgement, 133; PHARAND (2007), 17. 966 PHARAND (2007), 17. 967 Cf. ROTHWELL and STEPHENS (2010), 43. 968 HOWSON, 357. 969 ROTHWELL and STEPHENS (2010), 44. 970 PHARAND (2007), 17. 971 Cf. PHARAND (2007), 17; READ, 434. 972 Fisheries case, Judgement, 141-142; PHARAND (2007), 17. 973 PHARAND (2007), 17, also referring to O'CONNELL. 974 Fisheries case, Judgement, 142; PHARAND (2007), 17.

PART II, CHAPTER 2

90

pleases provided they do not amount to a deliberate distortion of the general outline of the

coast when viewed as a whole".975 When analysing the situation it should further be kept in

mind that, according to the ICJ, "(...) one cannot confine oneself to examining one sector of the

coast alone (...); nor can one rely on the impression that may be gathered from a large scale

chart [cf. art. 5 UNCLOS] of this sector alone".976 It was further specified in the doctrine that

rather, the determination should be made by looking at the two together.977

B. THE GEN ER AL DI R E CTION CRIT ERIO N AP PL I ED TO THE CANADI AN CAS E

B.1 NO GEN ER AL DI R ECTION CAN BE DIS CERN ED

As to the question whether Canada's use of the straight baselines method is within

'reasonable limits', scholars remain divided. Indeed, the only certainty in this respect seems

to be that satisfying this criterion will be Canada's greatest hurdle.978

Some have attempted to defend the Canadian position by arguing that it is impossible to

discern a general direction in any accurate or objective manner, due to the complex

configuration of the coast, with its indentations and peninsulas.979 On the one hand, it has

been emphasised that the eastern section of the mainland coast is deeply penetrated by a

huge inland sea (Hudson Bay) and smaller bays and basins. On the other hand it has been

pointed out that the continental coast reaches northward as far as Parry Channel, crossing

the middle of the Archipelago.980

However, as the Court specified in the Fisheries case, “(...) one cannot confine oneself to

examining one sector of the coast alone (...); nor can one rely on the impression that may be

gathered from a large scale chart [cf. art. 5 UNCLOS] of this sector alone".981 Considering the

entirety of the continental coastline, the author adheres to the view that the northern coast

of Canada runs in a general east-west direction, while the Archipelago appears to project

itself in a general northerly direction.982 As such, the latter does not seem to follow the

general direction of the continental coastline .

B.2 THE OUT ER P ERIMET ER O F T HE AR CHI PELAGO AS T HE 'COAST '

Others have exploited the argument that was already explained above, invoking the words

of the ICJ regarding the Norwegian 'Skjærgaard' to defend that what really constitutes the

northern coast of Canada is the outer line of the Archipelago.983 Taking that position,

Canada's straight baselines might follow the general direction of the 'coast'.984 However, as

mentioned above, there are several hindrances which may counter this - according to some -

rather circular reasoning.985 Also, while ancient concessions and historic title constituted a

mitigating factor in favour of the Norwegian claim986, the same cannot be said for Canada (cf.

975 International Court of Justice (ICJ), Fisheries case (United Kingdom v. Norway), Merits, Separate Opinion of Judge HSU MO, ICJ Reports 1951, 154-155; KILLAS, 117. 976 Fisheries case, Judgement, 142. 977 READ, 434. 978 LALONDE (2004), 72. 979 KILLAS, 118. 980 PHARAND (2007), 15-16. 981 Fisheries case, Judgement, 142. 982 PHARAND (2007), 18. 983 PHARAND (2007), 18. 984 JARASHOW et al., 1601; KILLAS, 115; LALONDE (2004), 72; PHARAND (1989), 666; PHARAND (2007), 18. 985 HOWSON, 358. 986 Fisheries case, Judgement, 142; HOWSON, 357.

PART II, CHAPTER 2

91

supra). Moreover, this approach has been considered as defying common sense and practice,

in the sense that official statements by the Canadian Government never speak of an

'archipelagic coast'.987

More importantly, this view has been criticised by some, cautioning for the application of

principles that only apply to mid-oceanic archipelagoes (cf. art. 47(1)) to coastal

archipelagoes.988 Indeed, it should be noted that Canada cannot derive any support for its

claim from an analogy between its straight baselines in the Arctic and the concept of

archipelagic baselines (art. 47). Admittedly, the Canadian Archipelago is a legal archipelago

in the sense of art. 46(b).989 After all, the fact that Parry Channel seems to divide the

Archipelago in a northern and southern island group, is no objection to the Archipelago's

qualification as an "intrinsic geographic, economic and political unit". This is explained by the

fact that besides land formations, art. 46 also takes into account the interconnecting waters

as an intrinsic part of the groups of islands.990 However, Canada obviously doesn't qualify as

an 'archipelagic state' in the sense of art. 46(a), as it is not a state which is "constituted

wholly by one or more archipelagoes" (like e.g. the Philippines).991

As such, the doctrine also represents the view that Canada's baselines depart a great

distance from the general direction of the coast.992 Assuming that 'coast' should be

interpreted as the mainland coastline, this view is further supported by other assessments.

Among these are e.g. the fact that the western baseline drawn by Canada around the Arctic

Archipelago departs at an angle almost perpendicular to Canada's northern coastline.993

Obviously, it should be noted that - taking into account the words of the Court - this portion

of the baseline alone will not determine the legitimacy of the entire system. Nonetheless, it

certainly seems an apt illustration of the weaknesses of Canada's position. Moreover, in any

case it remains a fact that "[a]s the [A]rchipelago is triangularly-shaped, the baselines

necessarily depart from the more straightforward west to east direction of the mainland coast"

(cf. supra).994

In this respect, it has even been stated that Canada's claim is particularly contentious

because of the length of its baselines. Indeed, these depart a great distance from the general

direction of the coast, in such a manner as to make them considerably longer than their

Norwegian counterparts.995 However, it should be noted that the ICJ explicitly repudiated

the British suggestion that there be a limit to the length of straight baselines in the Fisheries

case.996 Further, no provisions on length have expressly been included in the 1958

Convention, nor in the UNCLOS.997 Referring to what was mentioned above, it seems

987 KETTUNEN, 985. 988 Ibid. 989 KILLAS, 122. 990 Ibid. 991 JENSEN and MOE, 13; KETTUNEN, 970. 992 PERRY, 664. 993 READ, 434. 994 KILLAS, 117. 995 Cf. PERRY, 664; Cf. ROTHWELL and STEPHENS (2010), 51. 996 HOWSON, 357. 997 HOWSON, 358; PERRY, 664.

PART II, CHAPTER 2

92

probable that this criticism is in fact based on an erroneous analogy with the archipelagic

straight baselines regime (cf. art. 47(2)).998

C. APP R AIS AL

In the author's opinion, regarding the outer perimeter of the Archipelago as the 'coast'

would deprive the 'general direction' criterion of any meaning. This applies all the more,

considering that case law has expressly specified that this notion should not be interpreted

too liberally. As such, it would seem that one of the two mandatory prerequisites respecting

the actual construction of straight baselines is not met. For the sake of argument however,

the other two criteria (one of which is optional) will be briefly discussed as well.

§ 3. THE CLOSE LINK BE TWEE N SE A AND L AND

The second mandatory geographic criterion is the requirement of a close link between land

and sea. This is a logical prerequisite, since it is the landmass and islands which confer upon

the coastal state a right to the waters of its coasts.999 As the Court explained, this 'link' refers

to the question "(...) whether certain sea areas lying within these lines are sufficiently closely

linked to the land domain to be subject to the regime of internal waters".1000 In any case this

aspect does not seem to provide a problem in the case of the NWP. First of all, this position

has been supported by the presence of sea ice and its use for communication, habitation,

hunting and scientific research throughout the Passage. Indeed, all of these activities

contribute to the physical unity between land and sea.1001 Thus, the Archipelago may be

seen as a single cohesive unit.1002 Admittedly, one could argue that the presence of sea ice is

no longer a very persuasive argument, since this ice is shrinking at an alarming rate

throughout the Archipelago.1003 However, it should be recalled that it was illustrated in Part

I that, besides a seasonal window of navigation, ice coverage will remain a crucial

characteristic of these waters for many years to come in the NWP.

Moreover, the so-called 'sea to land ratio' which was explicitly adopted by consensus during

the Third Conference on the Law of the Sea, has been proposed as the most appropriate way

to interpret this requirement, by quantifying it.1004 Under this ratio, it becomes apparent

that the link between sea and land in the Canadian Archipelago is considerably stronger

than the one existing within the Norwegian straight baseline system (a Canadian ratio of

0.822 to 1, resp. 3.5 to 1 for Norway).1005

§ 4. ECO NOMI C IN TE RESTS EV ID ENCE D BY LO NG US AG E

Most unfortunately for those defending the Canadian position, Canada's strongest argument

flows from the third criterion, which is only optional (art. 7(5)).1006 The latter refers to the

"economic interests peculiar to the region concerned, the reality and the importance of which

are clearly evidenced by long usage". The reader will notice that this constitutes a factor

which surfaced already in the above, with respect to Canada's historic approach. Yet, it 998 Cf. PHARAND (2007), 23. 999 PHARAND (2007), 19. 1000 Fisheries case, Judgement, 133. 1001 KILLAS, 987; Cf. PERRY 664; PHARAND (2007), 19. 1002 READ, 435. 1003 LALONDE (2004), 73. 1004 LALONDE (2004), 73, referring to PHARAND. 1005 PHARAND (2007), 19. 1006 Cf. KETTUNEN, 987.

PART II, CHAPTER 2

93

should be recalled that nuances in the respective burden of proof exist, although there are

no differences between customary law and conventional law with respect to this

criterion.1007 In any case it is important to note that within this context regional economic

factors are relied upon not to justify the actual drawing of the baseline, but to lend support

to its validity.1008 However, no validity can be derived from this criterion alone, which means

that the 'general direction' requirement remains painfully problematic to the Canadian case.

Obviously, non-native commercial usage of the NWP has been relatively minimal in the

past.1009 However, the Canadian Inuit have unquestionably been fishing, hunting, and

trapping in the waters and on the sea ice of most of the Archipelago since time

immemorial.1010 This usage has been deemed a "centrifugal cultural vector"1011. It is vital to

the Inuit in terms of their economic and physical welfare, as well as the preservation of their

identity.1012 Also, these activities are analogous to the economic activity recognised by the

ICJ in the Fisheries Case.1013 Most interestingly, these rights can be accounted for especially

in the regions of Lancaster Sound and the Amundsen Gulf, being the two 'gateways' to the

NWP.1014 In a more holistic view, Inuit use of these areas ultimately reinforces the concept of

the Arctic Archipelago as a single cohesive unit.1015

2.7 OVERALL APPRAISAL OF CANADA 'S STRAIGHT BASELINES

In sum, it seems reasonable to conclude that "[i]n analysing the strength of Canada's claim to

the [NWP] under a straight baseline theory, there is legitimate support for both the Canadian

interpretation legitimising its use of straight baselines around the entire Arctic Archipelago

and for the contrary interpretation that straight baselines are not appropriate for the

Archipelago".1016 This is mainly due to the subjective and vague nature of the relevant

principles, as developed by the ICJ and codified in the 1958 Convention and the UNCLOS.

On the one hand it should be recalled that, according to some, this conclusion could be

reinforced in favour of the Canadian position. Indeed, one could invoke the subsidiary

argument of historic consolidation of title, its legal requirements being less stringent than

those of a historic title.1017 Yet, this notion and the relevant criteria are in turn quite

nebulous and debateable (cf. supra).

On the other hand, the author is inclined to adhere to the conclusion that Canada's straight

baselines seem controversial under international law. Indeed, even the geographic context

appears dubious in this case. More particularly, in first instance the criterion of a deeply

indented coast doesn't seem to apply to island coasts as such. Admittedly, it has been

defended that the Archipelago is but an extension of the mainland to remedy this

shortcoming. Nonetheless, the presence of the wide Parry Channel seems to cause this

reasoning to be of little avail. In second instance, it seems doubtful whether the Archipelago

1007 PHARAND (2007), 21. 1008 Ibid. 1009 KETTUNEN, 987. 1010 PHARAND (2007), 21; LALONDE (2004), 73. 1011 KETTUNEN, 987. 1012 PHARAND (2007), 21. 1013 READ, 436. 1014 PHARAND (2007), 21. 1015 READ, 435. 1016 READ, 433. 1017 PHARAND (2007), 58.

PART II, CHAPTER 2

94

could be considered a fringe of islands in the immediate vicinity of the coast, especially

because of reasons of proximity.

As to the criteria for the actual construction of straight baselines, the favourable sea to land

ratio and the vital interests of the Inuit since time immemorial is right up Ottawa's alley.

However, the mandatory 'general direction' criterion seems detrimental to Canada's

position, taking into account the triangular configuration of the massive Archipelago.

As explained above, Canada's position now depends on the possible qualification of the NWP

as a strait used for international navigation. This will be briefly evaluated in the following,

before concluding on Canada's rights with respect to the waters of the Archipelago in

general, and those of the NWP in particular.

3. THE NWP AS A STRAIT USED FOR INTERNATIONAL NAVIGA TION

3.1 GENERAL

As mentioned at the beginning of this Chapter, the US has consistently contended that the

waters of the NWP constitute a strait used for international navigation (cf. Part III of the

UNCLOS). This gives rise to the question whether or not the waters of the NWP can be

considered territorial waters which are used for international navigation. If this were the

case, these waters would constitute an international strait under the regime of non-

suspendable transit passage in favour of foreign vessels (art. 38). If this were not the case,

the waters of the NWP would merely constitute a 'legal' strait through the territorial seas,

subject to a right of innocent passage which may be suspended (art. 25(3)).1018 This issue is

obviously of paramount importance to Canada's position, i.a. with respect to vessel-source

pollution. Indeed, a ruling that the Arctic waters are international would be fatal to Canada's

claim of exclusive sovereignty.1019 In any case, the name, i.e. the terminology (in this case

referring to 'Passage(s)' in English and French) is not a decisive factor.1020 Also, it is clear

that the NWP has never been declared an international strait by any treaty or convention.

Therefore, it could only have become an international strait by customary usage.1021 The

following will attempt to formulate an answer as to whether such has actually been the case.

Unfortunately, in doing so the first assessment is that despite its comprehensive nature, the

UNCLOS doesn't provide a definition or criteria in this respect1022, except for the required

geographic features (art. 37; cf. art. 16(4) 1958 Convention). Therefore, the principles set

forth by the ICJ in the 1949 Corfu Channel case1023, the only international ruling on this

issue1024, will be primarily relied upon. It is true that the views of the Court have been

criticised. However, they entailed the confirmation of a specific singularity for these

channels of communication1025 and found their way to the existing customary international

1018 KETTUNEN, 977. 1019 PERRY, 677. 1020 LÓPEZ MARTIN, 42. 1021 HOWSON, 370. 1022 MCDORMAN (2010), 237. 1023 International Court of Justice (ICJ), Corfu Channel (United Kingdom v. Albania), Merits, Judgement of April 9th, 1949, ICJ Reports 1949, 4 (hereinafter Corfu Channel, Judgement). 1024 BYERS and LALONDE, 1170. 1025 LÓPEZ MARTIN, 10.

PART II, CHAPTER 2

95

law.1026 As such, the Corfu Channel case is in any case the most cited authority with respect

to the definition of an 'international strait'.1027

Confronted with the question whether the Corfu Channel qualifies as a strait used for

international navigation, according to the authoritative French text, the Court more

particularly held that "[l]e critère décisif paraît plutôt être tiré de la situation géographique

du Détroit, en tant que ce dernier met en communication deux parties de haute mer, ainsi que

du fait que le Détroit est utilisé aux fins de la navigation internationale" [emphasis added].1028

Hence, the criteria appear to be twofold, referring to a geographical criterion on the one

hand, and a functional criterion on the other hand.1029

At this point it should immediately be recalled that what has been called the 'Northwest

Passage' (NWP) so far, could be called the 'Northwest Passages', in the plural, as well, being

in fact a group of straits. For the following analysis however, the NWP will be considered as

a whole, if only for the practical reason that the modest scope of this paper doesn't allow for

a detailed analysis of all the separate straits constituting the Passage. Nevertheless, it should

be understood that this given has led to serious discrepancies as regards the classification of

the NWP in general, and the series of straits which make it up in particular, as 'international

strait'.1030 In any case, under either of these approaches the NWP meets the geographic

requirement of an international strait as described in the following. 1031

3.2 THE GEOGRAPHIC CRITERION AND THE LEGAL COMPONENT1032: WHAT IS A

'STRAIT ' IN LEGAL TERMS?

The traditional customary law definition of a legal strait as expressed in the Corfu Channel

case has evolved through time1033. Ultimately this led to the broadened description in art. 37

UNCLOS.1034 On the one hand, the geographic criterion implies that the strait forms a narrow

natural passage or arm of water between two landmasses, connecting two larger bodies of

water.1035 In other words, this excludes artificially created inter-oceanic channels, which

indeed are subject to a separate regime.1036 Also, this description requires a contraction of

the sea, as well as the separation of two land areas, i.e. two continental territories, two

islands, or a continental territory and an island. The type of the separated territories is

irrelevant as regards the definition of straits. However, it does have legal consequences as

concerns the navigation regime applicable to the straits. Finally, two maritime areas should

be naturally united by the strait. These areas can be two oceans, two parts of the same

ocean, two seas, two parts of the same sea, or an ocean and a sea.1037

1026 PHARAND (2007), 30; SOMERS, 301. 1027 ROSTON, 466. 1028 Corfu Channel, Judgement, 28. 1029 BYERS and LALONDE , 1171; Cf. KETTUNEN, 977-978; LÓPEZ MARTIN, 11-12; PHARAND (2007), 30; READ, 438; SOMERS, 312-313. 1030 LÓPEZ MARTIN, 59. 1031 ROTHWELL (1993), 354. 1032 For the terminology, see LÓPEZ MARTIN, 49. 1033 PHARAND (2007), 30. 1034 Cf. READ, 437. 1035 LALONDE (2004), 85; Cf. LÓPEZ MARTIN, 45-47; Cf. SOMERS, 312; WALKER and NOYES, 297. 1036 LÓPEZ MARTIN, 45; SOMERS, 312. 1037 LÓPEZ MARTIN, 46-47.

PART II, CHAPTER 2

96

On the other hand, it should be understood that of the several hundred geographical straits

on the planet, only a certain number of these are considered legal straits. Only the latter are

included in the category of straits used for international navigation of the Law of the Sea.1038

More particularly, in order for this geographic strait to be a legal strait in the sense of the

UNCLOS, it has to join two parts of the high seas, or two parts of the EEZ, or a part of the

high sea and the territorial sea of one or more foreign states, or a part of the EEZ and the

territorial sea of one or more foreign states (art. 37).1039 Also the width of the narrow

passage is important: a legal strait is one which is 24 nm or less in width, hence requiring an

overlap of territorial seas1040. Further, if there exists a high seas corridor in the middle of the

strait which is not suitable or convenient for navigation, the strait remains a legal strait.1041

Also, it is possible that there are 'enclaves' or 'pockets' of high seas left in a strait where the

territorial waters on either side don't reach. If this is the case, these should be assimilated to

territorial waters.1042 In other words, the totality of the waters of the strait must not

necessarily be included in the territorial sea. Instead, it is sufficient that there is an overlap

in some parts of the strait.1043

The NWP undoubtedly meets these criteria.1044 As explained above, the eastern end of the

Passage leads to Baffin Bay, Davis Strait, the Labrador Sea and the Atlantic Ocean. The

western end leads to the Beaufort Sea, the Chukchi Sea, the Bering Strait and the Pacific

Ocean.1045 Moreover, an overlap of territorial waters throughout the NWP is present ever

since the extension of the territorial sea from 3 to 12 nm in 1970.1046 It is noteworthy that if

the validity of Canada's baselines is upheld, the effect would be the enclosure of all the

waters of the Archipelago as internal waters. In other words, this would remove the overlap

of territorial waters. However, this would still not constitute an objection, taking into

account art. 34(1) UNCLOS.1047

3.3 THE FUNCTIONAL CRITER ION: WHEN IS A STRAIT USE D FOR INTERNATIONAL

NAVIGATION?

As such there is a broad consensus, that the NWP meets the geographic criterion.1048

However, the question whether the functional criterion is met, remains subject to thorough

dispute1049. Indeed it appears unclear what factors are relevant and what their relative

importance should be.1050 As such, there is no agreement in the doctrine regarding what the

expression 'used for international navigation' means. Neither is there any unanimity as

regards the degree of use of a strait required for it to be international.1051

1038 LÓPEZ MARTIN, 49; WALKER and NOYES, 297. 1039 LALONDE (2004), 86; PHARAND (2007), 30; SOMERS, 312. 1040 PHARAND (2007), 30. 1041 LÓPEZ MARTIN, 50; PHARAND (2007), 30. 1042 PHARAND (2007), 30; Cf. SOMERS, 312. 1043 LÓPEZ MARTIN, 49. 1044 BYERS and LALONDE, 1171; Cf. JARASHOW et al., 1605; JENSEN, 13; KETTUNEN, 978; Cf. READ, 437. 1045 LALONDE (2004), 86, quoting PHARAND. 1046 PHARAND (1989), 669; Cf. PHARAND (2007), 36. 1047 PHARAND (2007), 36-37. 1048 Cf. ROSTON, 463. 1049 Cf. JARASHOW et al., 1605; LALONDE (2007), 634. 1050 PHARAND (2007), 34. 1051 LÓPEZ MARTIN, 55.

PART II, CHAPTER 2

97

§ 1. LEG AL V AL UE OF THE F U N CTION AL CRI TERION

In first instance, some are under the impression that the functional criterion is only of

subsidiary importance, whereas the geographic criterion is alleged to be the decisive

factor.1052 PHARAND has got down to the bottom of this matter. He reported that "[t]his

impression was removed after consultation with a linguistic expert specialising in the French

and English languages. The coordinative conjunction "ainsi que" (as well as) [in the passage of

the ICJ's judgement quoted above] leaves no doubt that the two criteria are of equal

importance".1053 This was confirmed by LALONDE, stating that "(...) la locution conjonctive

"ainsi que" donne un poids égal aux deux critères".1054 What is more, the development of this

principle after the 1949 Corfu Channel case has been such that by the time of the Third

Conference, more and more states tended to wield the functional criterion as the

predominant one.1055 At present, the functional criterion can undoubtedly be considered as

the main constitutive element in the analysis.1056

§ 2. ACTUAL O R PO TE NTI AL USE ?

Yet, still the question remains as to how the 'usage' of the strait should be interpreted. In

this respect, American and Canadian scholars have taken opposite views. While Canadian

commentators have contended actual use is required, their American colleagues have

contented themselves with a mere potential use to qualify a legal strait as an international

strait.1057 Needless to say, this is the component which generates the greatest discrepancy

between states. After all, the users of the straits are prone to hold that the seaways in

question are used for international navigation. The coastal states however, tend to challenge

their international nature and reject such use.1058 Thus, with respect to the NWP it was

observed that "[c]ette différence d'interprétation est au cœur de la querelle qui a bouleversé

périodiquement - et qui continue à perturber - les relations diplomatiques entre le Canada et

les États-Unis sur la question des eaux de l'Arctique".1059

Some American commentators (particularly from within US military circles) have strongly

defended that the test is geographic, not functional1060. This is translated into the US

position that ""a strait used for international navigation" covers all straits that are capable of

being used for international navigation" [emphasis added].1061 In support of this view, the

manner in which the ICJ's decision was codified in the 1958 and 1982 Conventions has been

invoked. More particularly, American authors have relied upon the absence of words such as

'normally', 'customarily' or 'traditionally' when speaking of 'a strait used for international

navigation'.1062 This argument seems to be reinforced by the International Law

Commission's Draft Convention for the 1958 Convention (esp. art. 16(4)). Indeed, this text

1052 MCDORMAN (2010), 238; Cf. PHARAND (2007), 35. 1053 BYERS and LALONDE, 1171; PHARAND (2007), 35. 1054 LALONDE (2007), 634. 1055 SOMERS, 309. 1056 SOMERS, 313. 1057 Cf. HOWSON, 368. 1058 LÓPEZ MARTIN, 53. 1059 LALONDE (2007), 634. 1060 KRASKA (2007), 274; PHARAND (2007), 35, quoting GRUNAWALT, R.J., "United States Policy on International Straits", Ocean Dev. & Int'l L. 1987, (445) 456; Cf. ROSTON, 467. 1061 MCDORMAN (2010), 237. 1062 HOWSON, 369; Cf. ROTHWELL (1993), 355.

PART II, CHAPTER 2

98

originally spoke of 'normally used for international navigation', while the word 'normally'

was later on omitted.1063

However, the American position seems isolated and cannot be supported at law1064, in the

sense that the use concerned here appears to be an actual, real use and not a merely

potential use.1065 Indeed, taking into account the principles as set forth by the ICJ in the

Corfu Channel Case, it seems clear that the test certainly encompasses a functional aspect.

More particularly, neither customary international law, nor the ICJ's decision (upon which

the customary law definition is based)1066 seem to support the 'potential use'

interpretation.1067 Rather, the terminology used by the Court seems to point in the direction

of an 'actual use' standard. This is for example illustrated where the Court states that "[n]or

can it be decisive that the Strait is not a necessary route between two parts of the high seas,

but only an alternative passage (...). It has nevertheless been a useful route for international

maritime traffic" [emphasis added].1068 Further, the Court spoke of "the class of international

highways" [emphasis added].1069 In this respect, reference can also be made to the pleadings

of the UK in the subsequent 1951 Fisheries case, defining the notion as "any legal strait to

which a special régime as regards navigation applies under international law because the

strait is substantially used by shipping (...)" [emphasis added].1070 As pointed out in the

doctrine, this view appears to accord with the interpretation of the Corfu criteria generally

given by experts.1071 The latter include authoritative names such as BAXTER, CAMINOS,

CHURCHILL, DE VISSCHER, LOWE and O'CONNELL.1072 The latter for example, has expressly

contended that "mere potential utility is insufficient".1073 Also, the language used by the Court

seems in accordance with the qualifying expressions already used before 1949, as identified

by BRUËL. Among these expressions are 'routes maritimes indispensables', 'routes maritimes

nécessaires à la navigation', 'grandes routes maritimes', 'passage habituel', 'international

highways', 'highways for international traffic' and 'natural traffic routes'.1074

Moreover, it has been remarked that at the time of the omission of the word 'normally'

which originally figured in the ILC's draft convention, this omission was considered highly

controversial and was criticised by several states.1075 Also, some are under the impression

that there exists strong evidence that the drafters had actual use in mind.1076 In that respect,

the deletion of the word 'normally' seems to be an unfortunate coincidence flowing from a

series of amendments.1077

1063 BYERS and LALONDE, 1171; HOWSON, 369; Cf. SOMERS, 304-307. 1064 Cf. BYERS and LALONDE, 1174; PHARAND (2007), 36. 1065 Cf. LÓPEZ MARTIN, 55. 1066 HOWSON, 368. 1067 BYERS and LALONDE, 1174. 1068 Corfu Channel, Judgement, 28. 1069 Corfu Channel, Judgement, 29. 1070 BYERS and LALONDE, 1171; LALONDE (2007), 634. 1071 BYERS and LALONDE, 1172. 1072 Cf. BYERS and LALONDE, 1172-1173; LÓPEZ MARTIN, 54; PHARAND (2007), 35. 1073 Cf. BYERS and LALONDE, 1172, quoting BAXTER and O'CONNELL; Cf. PHARAND (2007), 35. 1074 PHARAND (2007), 34, referring to BRUËL. 1075 SOMERS, 305. 1076 HOWSON, 369. 1077 HOWSON, 369-370.

PART II, CHAPTER 2

99

Specifically with respect to the UNCLOS, it has been stated that the Convention undoubtedly

and expressly includes the functional component when it refers to "straits used for

international navigation".1078 To reach this conclusion, the issue has been qualified as a

problem of interpretation which should be resolved through application of the arts. 31-33 of

the 1969 Vienna Convention.1079 As such, it has been pointed out that the verbal tense of the

words 'used' ('Straits used for international navigation'), 'servant' ('Détroits servant à la

navigation internationale') and 'utilizados' ('Estrechos utilizados para la navegación

internacional') in the heading of Part III of the UNCLOS in its authentic English, resp. French

and Spanish text seems to refer to an actual use.1080 Likewise, the words 'which are' in art.

37, stating that "this section applies to straits which are used for international navigation (...)"

[emphasis added], have been invoked to support this view.1081

In sum, the author adheres to the conclusion reached by numerous scholars that mere

potential utility is insufficient in order to speak of a strait used for international

navigation.1082

§ 3. QUAN TIFYIN G TH E ACTUAL USE

While actual use appears to be the standard to be taken into account, it remains doubtful

whether this actual use should amount to a certain quantitative threshold, or whether any

real use is sufficient. On the one hand, some scholars, among whom KOH, President of the

Third Conference from 1981 to 1982, have defended the view that the use does not have to

be regular nor reach a predetermined level.1083 On the other hand, others require proof of

the strait's "history as a useful route for international maritime traffic".1084

In the Corfu Channel case, the Court obviously did not enunciate a clear test of utility and

remained rather ambiguous1085. Yet, it did consider the volume of traffic and the number of

flag states represented in the Corfu Channel.1086 More particularly, in a period of one year

and nine months, 2,884 ships corresponding to seven different flag states had put in at the

port of Corfu after passing or just before passing through the Corfu Channel. Not included in

this number is the large number of vessels that passed through the Channel without calling

at the port of Corfu.1087 Interestingly, the Court took into account that the Channel had been

used for a considerable period of time by the British Navy as well as by other navies.1088 As

such, the Court considered that this is quite a large figure. Ultimately, it arrived at the

conclusion that "[h]aving regard to these various considerations, (...) the North Corfu Channel

should be considered as belonging to the class of international highways".1089

1078 LÓPEZ MARTIN, 53. 1079 LÓPEZ MARTIN, 55. 1080 HOWSON, 370; LÓPEZ MARTIN, 55. 1081 LÓPEZ MARTIN, 55. 1082 HOWSON, 369-370; Cf. PHARAND (2007), 36; PERRY, 678; MCDORMAN (1986), 251. 1083 LALONDE (2004), 87, referring to ANDERSON, NANDAN, and KOH; LÓPEZ MARTIN, 57. 1084 PHARAND(2007), 35; Cf. LALONDE (2004), 88-89, referring to MCDORMAN, MCKINNON and MCRAE. 1085 Cf. JARASHOW et al., 1611. 1086 KETTUNEN, 978. 1087 Corfu Channel, Judgement, 29; PHARAND (2007), 34-35. 1088 Corfu Channel, Judgement, 29. 1089 Corfu Channel, Judgement, 29; Cf. PHARAND (2007), 35.

PART II, CHAPTER 2

100

This certainly creates the impression that the actual use of the strait should reach a certain

quantity, i.e. the strait should be used to a substantial extent.1090 In fact, this seems a logical

conclusion, considering that the function of the strait as a nexus for international maritime

navigation is the basis for the unique and exceptional legal regime of straits used for

international navigation.1091 This idea was defended by BRUËL even before the 1949 Corfu

Channel case1092 and seems a rational conclusion in the sense that e.g. a strait monopolised

by a single flag state has no need for an exceptional legal regime.1093

Further, while a clear quantitative standard lacks altogether, it has been stated in the

doctrine that such a standard is in fact not necessary. After all, sufficient other standards are

available to give guidance (without one of them being decisive)1094 when analysing the

status of the strait in question.1095 Besides the number of ships, these standards include

most notably the number of flags represented, the aggregate value of the transported

cargoes, the total tonnage of the vessels, the strategic value of the transported goods for the

country of arrival or departure, the frequent use of the strait and the fact that the strait is

not merely used for local purposes.1096 Usually merchant navigation is emphasised in this

respect. However, it has been defended that actual use which is substantial in the light of

these standards may be either civil or military, or both, so any type of maritime navigation

use can be relevant.1097

Applying these principles to the NWP, the number of vessels transiting the Passage seems

relatively low, compared to the figures in the Corfu Channel case. In his swan song dating

from 2007, PHARAND mentions 69 foreign (i.e. non-Canadian) transits in the period between

1903 and 2005. These 69 transits include 20 transits by yachts and small boats, 2 by ice-

strengthened tankers, 18 by icebreakers and 29 by passenger ships. They represented a

total number of 16 different flag states, the US accounting for 15 and the Russian Federation

for 22 of these 69 foreign transits. Other writings including Canadian transits in the

calculations, dating from the same period, mention a total number of 110 transits. Further,

the Canadian Government mentions on its website that during 2010 a record number of

vessels transited through the NWP and that the number of transits increased from 4 per

year in the 1980s to 20 per year in 2009-2011.1098

While unquestionably on the rise, these figures still seem quite modest. Indeed, it has been

remarked that"[f]or all the attention the [NWP] receives in Canada and beyond, there has been

remarkably little vessel traffic that has navigated the Passage from one end to the other".1099

Yet, it should be noted that in the 1933 Eastern Greenland case1100, the Permanent Court of

International Justice recognised that the application of general principles of law to the polar

1090 PHARAND (2007), 35, referring to BAXTER. 1091 SOMERS, 313. 1092 Cf. PHARAND (2007), 34, referring to BRUËL. 1093 SOMERS, 313. 1094 Cf. PHARAND (2007), 34, referring to BRUËL. 1095 SOMERS, 313. 1096 PHARAND (2007), 34, referring to BRUËL; PHARAND (2007), 36, referring to DE VISSCHER; SOMERS, 313-314. 1097 LÓPEZ MARTIN, 57. 1098 See the website of the Government of the Northwest Territories, Department of Environment and Natural Resources: http://www.enr.gov.nt.ca/_live/pages/wpPages/soe_human_activities.aspx, last accessed April 22, 2013. 1099 MCDORMAN (2010), 227. 1100 Permanent Court of International Justice (PCIJ), Legal Status of Eastern Greenland (Norway v. Denmark), PCIJ Series A/B, n°53, 1933, 22.

PART II, CHAPTER 2

101

regions must take into account special local conditions. These include in particular the

difficult accessibility of this remote region, the difficulties of navigation and the absence of

alternative routes.1101 This has led to the conclusion that despite the fairly high threshold in

the Corfu Channel case of 1949, a considerably lower standard would probably suffice in the

NWP.1102 Moreover, the fact that navigation is made possible because of navigation aids or

technical works carried out by the strait state, does not affect the fulfilment of the functional

criterion. This holds true insofar as these aids or works don't have to be provided by the

strait state. The crossing of the Arctic straits by icebreakers would be an example of a

circumstance that doesn't affect the functional criterion.1103

Whether the NWP can be said to have developed a history as a useful route for maritime

traffic, is difficult to establish without further guidance.1104 However, in the light of the other

standards mentioned above, the NWP cannot be considered a strait used for international

navigation under the present circumstances. After all, while 16 different flag states were

represented in the findings of PHARAND, more than half of the transits were in fact

attributable to only two states, namely the US and the Russian Federation. Also, the

aggregated value of the transported cargo, i.e. its part in the international trade1105, seems

fairly modest. Furthermore, it seems quite dubious whether the Passage can be said to be

subject to frequent use, i.e. being a part of a traffic pattern.1106 What is more, as explained in

Part I, the NWP's projected marine future, while of strategic use, predominantly emphasises

intra-Arctic shipping, i.e. local use.

3.4 APPRAISAL

Under the present-day circumstances, the author tends to adhere to the conclusion reached

by the majority of the current doctrine, excluding the whole of the NWP from the

classification as an international strait.1107 Also, it has been illustrated that the NWP is not

expected to become the fabled commercial nexus in the near future. Yet, navigation is

undoubtedly on the rise, especially in recent years. Therefore, a possible

internationalisation of the Passage, making the right of transit passage applicable, cannot be

excluded. This is especially the case taking into account the more supple standards which

could be justified on the basis of the Eastern Greenland decision.1108

1101 Cf. JARASHOW et al., 1611; PHARAND (2007), 44; ROTHWELL (1993), 125. 1102 PHARAND (2007), 44. 1103 LÓPEZ MARTIN, 60. 1104 ROTHWELL (1993), 357. 1105 SOMERS, 313. 1106 Ibid. 1107 LÓPEZ MARTIN, 59. 1108 Cf. PHARAND (2007), 44.

PART II, CHAPTER 2

102

4. PUTTING THE DEBATE INTO PERSPECTIVE WHILE LOOKING INTO THE

FUTURE

4.1 POLITICS OF SOVEREIGN TY VERSUS A CRUSADE IN THE NAME OF FREEDOM

OF NAVIGATION

§ 1. THE CANADI AN POLITI CS OF SO VE REIGN TY

Taking into account the projections on the future described in Part I, some authors have

stated that the legal status of the NWP should be well-established as soon as possible.1109

Nevertheless, as this chapter has illustrated, one could hardly neglect the thin ice on which

the respective legal claims seem to be founded. Moreover, the outspoken domestic political

context in the US and Canada should not be neglected.

On the one hand, in Canada the NWP is captured by the so-called "politics of sovereignty"

ever since the 1969 Manhattan incident (cf. supra).1110 This is reflected in the endless stream

of 'sovereignty-on thinning-ice' literature.1111 As such, it has been observed that "[w]hen it

comes to the Arctic, Canadians worry first about questions having to do with jurisdiction and

boundaries, and when challenged by what they interpret as violations of their northern

territory, they respond nationalistically, sentimentally and protectively".1112 In fact, the

situation has evolved up to the point that the Government of Canada has to consider the

politics of sovereignty as a factor separate from the national interest in decision-making.1113

The underlying explanation for what has been called most atypical Canadian 'jingoism'

seems to be the widespread feeling that Arctic sovereignty represents more than maritime

control. This notion has become synonymous with the preservation of Canada's national

heritage in the north and is considered to represent the acknowledgement of the ownership

rights of Canada's indigenous people.1114 Also, Canada likes to think of itself as being the

only nation prepared to protect the population of its northern region from exploitation and

environmental devastation.1115 Likewise, some went as far as to proclaim that "[b]ecause

welfare of both northern Canadians and the Arctic ecosystem is best promoted through

Canadian management, Canadian sovereignty is the only equitable solution for the modern

Arctic" [emphasis added].1116 Could we wish for a more striking example of the Canadian

politics of sovereignty?

In the author's opinion, it seems appropriate to put this kind of boasting language into

perspective. As mentioned above, Canada was making efforts to formulate its clearest and

most precise official statement of its claim that the waters of its Archipelago are historic

internal waters in 1973.1117 At the same time, relief for the detrimental effects of profound

social dysfunctions due to policies imposed by a central, non-Inuit authority, was not in sight

until 1999. All those years, the indigenous population had to wait for the creation of the

1109 PHARAND (2007), 4. 1110 MCDORMAN (2010), 242. 1111 Cf. GRIFFITHS, 259. 1112 Cf. MCDORMAN (2010), 242; PERRY, 663. 1113 MCDORMAN (2010), 242. 1114 GORDY, 556. 1115 GORDY, 558. 1116 GORDY, 554; PHARAND (2007) 48. 1117 MCDORMAN (2010), 231.

PART II, CHAPTER 2

103

autonomous political unit of 'Nunavut'.1118 Before 1999, three-quarters of the country were

virtually unorganised politically speaking, with "thousands of Inuit people liv[ing] scattered

about the Arctic in relative social and political disorganisation".1119 More than a decade later,

these communities may have gained limited measures of political power, but they have yet

to exploit their economic potential.1120 Moreover, it should not be forgotten that in the past

the Inuit were encouraged to move in order to ensure that Canadian citizens lived as far

north as possible to maintain sovereignty. It has been stated that those who answered this

call have been abandoned to a region lacking access to infrastructure, education, medical

care and job opportunities. Adding to this sad image are the high alcoholism and suicide

rates, combined with the high numbers of young people that end up dropping out of

school.1121 Needless to say, this is absolutely problematic for a nation claiming sovereignty

in the North.1122

Clearly, the Canadian Government realised the Inuit were going to be its most important

support for a claim that could count on a certain credibility in the international legal forum.

Indeed, it would seem that this, rather than a sheer feeling of responsibility, was the impetus

behind the sudden interest in the indigenous inhabitants of the Canadian North. However, it

should be clear that "these communities must be treated as more than 'flag holders' at their

countries' respective northernmost borders".1123

Moreover, it should be remarked that the Canadian rhetoric has not translated into

significant resources being expended by Canada. In fact, the Canadian efforts respecting

sovereignty remain largely symbolic and are ultimately little more than paper tigers.1124

Indeed, for example the installation of sonar systems at the main entrances of the NWP to

detect and control passage of (US) submarines has been considered too expensive in the

past.1125 Also, Canada's icebreaker fleet is aging, while the long-awaited project to build a

powerful new Arctic icebreaker has been slow. Plans for a small fleet of Arctic patrol ships

have likewise been placed on hold.1126 Admittedly, the short- and medium-term feasibility of

such aspirations suffers from the global economic crisis. Nevertheless, these assessments

bring to light the concurrent issues affecting the Inuit.1127 This explains a lack of

enforcement capability, Canada being poorly equipped to police the NWP.1128

§ 2. THE US CRUSADE FOR F REE DO M OF NAVI GATI ON

The US on the other hand has been clinging on to the freedom of navigation like grim death

and seems particularly alarmed at the idea of a precedent of unilateral coastal state action

restricting it.1129 Indeed, the US doctrine reflects a fear - according to some misplaced1130 -

of the external impact of a precedent, undermining what has long been a dominant US ocean

1118 PERRY, 674-675. 1119 PERRY, 674. 1120 EBINGER and ZAMBETAKIS, 1219. 1121 EBINGER and ZAMBETAKIS, 1219-1220. 1122 PERRY, 674. 1123 EBINGER and ZAMBETAKIS, 1120. 1124 MCDORMAN (2010), 243. 1125 PHARAND (2007), 52. 1126 BROSNAN et al., 190. 1127 EBINGER and ZAMBETAKIS, 1219. 1128 BYERS and LALONDE, 1191. 1129 MCDORMAN (2010), 246-247. 1130 BYERS and LALONDE, 1204.

PART II, CHAPTER 2

104

interest.1131 This, rather than an interest in the NWP per se, is the main reason why the US

has consistently maintained its legal position.1132 Beyond its crusade in defence of the

freedom of navigation, the US has not perceived the NWP (or the Arctic in general) as a

significant item on the political agenda.1133 Indeed, the economic reality is such that after the

discovery of oil in northern Alaska in 1968, it was decided that this oil would not be

transported via tankers through the NWP. Instead, the US has opted for a pipeline across

Alaska and transportation via tankers along the west coast.1134

Most interestingly, the point of view of the US, compared to the Canadian perspective,

emphasises that the two protagonists in the Arctic play have adopted completely different

approaches. In this respect it has been observed that while the US sees the NWP in terms of

its global aspirations, Canada sees the NWP as a local issue.1135 In any case, it seems

remarkable that the issue is usually portrayed as a bilateral Canadian-US matter1136 and that

the difference in views has primarily involved Canada and the US.1137 After all, in reality this

issue has a multilateral character, also involving e.g. the EU. For that matter, the latter

supports a multilateral approach.1138

4.2 UNWILLINGNESS TO CONCEDE OR COMPRO MISE

This political tension undeniably illustrates both states' unwillingness to concede or

compromise1139 and obviously causes a more pragmatic approach to be defended.1140

Admittedly, the legal positions on these troubled waters seem highly relevant for the

purposes of this paper. However, the reader should realise that these positions have to be

put into the right perspective. After all, the author believes that legal arguments alone are

not firm enough to provide a fertile basis for a solution in this case. This view is reflected in

the international literature as well, stating that there is no finality to the status of the NWP

because the legal positions of both sides are not strong enough to result in a definitive

resolution.1141 This also explains the uncertain outcome in the event of a procedure before

an international court or tribunal. Since the down-side of such a loss would be significant, it

is not hard to imagine why the navigation rights in the NWP are highly unlikely to be

willingly brought before an international court or tribunal by either Canada or the US.1142

Moreover, due to the dim political climate, "[t]he strengths and/or weaknesses of the

international legal argument of the two [s]tates are largely irrelevant as factors that may lead

to compromise or capitulation of their positions".1143 After all, this makes a negotiated

solution more attractive, as it allows to hold the sovereignty question constant, while

addressing more important issues.1144 Such an approach could indeed, within certain limits,

1131 MCDORMAN (2010), 239. 1132 MCDORMAN (2010), 241. 1133 MCDORMAN (2010), 241. 1134 MCDORMAN (2010), 243 1135 Ibid. 1136 MCDORMAN (2010), 227 and 229. 1137 MCDORMAN (2010), 229. 1138 EBINGER and ZAMBETAKIS, 1231. 1139 MCDORMAN (2010), 229. 1140 See in particular ibid. 1141 READ, 442. 1142 MCDORMAN (2010), 248-249. 1143 MCDORMAN (2010), 248. 1144 READ, 439 and 441.

PART II, CHAPTER 2

105

be embedded within the framework provided by the UNCLOS, taking into account its art.

311.1145

4.3 THE NEED FOR A MULTILATERAL , FUNCTIONAL APPROACH FOCUSSING ON

THE VESSEL

As such, the author is under the impression that some scholars seem to get stuck in an

academic dead end. Instead it should be realised that the real issue is to ensure that the

vessels that use the Passage do so in a manner that creates the least risk of damage to the

marine and local environments.1146 Some scholars fail to understand this and dispose of this

functional approach as a way to quiet, rather than solve this problem. According to those

authors, this implies "leav[ing] Canada's Arctic citizens and Arctic ecosystems without a voice

and without a defence".1147 However, the question could be asked what defences the Arctic

has got while the focus is on a one-sided rhetoric based on dubious and inconsistent legal

arguments, completely ignoring the political reality...

Moreover, a functional approach is not tantamount to "just muddle through"1148, e.g. by

satisfying oneself with an expansion or modification of the current 1988 'Agreement to

Disagree'. Indeed, this would be legally problematic.1149 Rather, now that the potential for

growth in Arctic shipping has raised concerns that the existing regimes are inadequate to

address the potential threat1150, an approach that focuses on the vessel is required. This

would be much more interesting than the current debate, focussing on the coastal state's

rights to control access to the Passage.1151 Indeed it has been remarked that this would be

more operationally-meaningful for the US, Canada and the rest of the international

community than pursuing or advocating politically and legally unworkable 'solutions'.1152

Others confirmed this, stating that "rather than debating legal differences, it is much more

useful to focus on the extensive, long-term interests in security, environmental protection, and

safety of navigation commonly shared between the United States and Canada in the Arctic"

[emphasis added].1153

At the same time, the multilateral nature of the dispute should be taken into account (cf.

supra). After all, this feature has been deemed the reason why multilateral solutions,

particularly through the IMO, would seem preferable rather than unilateral action by one or

more of the Arctic states.1154 This is confirmed by others, stating that "(...) the best way to

solve circumpolar problems is to develop circumpolar regimes. This applies particularly to the

protection of the marine environment and the safety of navigation" [emphasis added].1155

Specifically with respect to vessel-source pollution, it should be brought under the attention

that ships smoothly move across multiple jurisdictions. This obviously implies that the

1145 READ, 441. 1146 MCDORMAN (2010), 229-230. 1147 GORDY, 552. 1148 BYERS and LALONDE, 1199. 1149 MCDORMAN (2010), 248. 1150 BROSNAN et al., 200. 1151 MCDORMAN (2010), 249. 1152 MCDORMAN (2010), 250. 1153 ROACH, 313. 1154 ROACH, 311. 1155 PHARAND (2007), 58.

PART II, CHAPTER 2

106

potential environmental impacts are transboundary in nature. This in turn provides an

incentive to the parties involved to forgo unilateral action to address environmental

concerns.1156

4.4 AVENUES FOR COOPERATION

As such, it seems that the time has come to shift the focal point of the debate on the NWP

towards coordination and cooperation. After all, the author adheres to the view that

exploring and illuminating the avenues for cooperation is more useful than attempting to

predict conflict. This is especially the case in a dynamic and uncertain environment such as

the Arctic.1157 Among these avenues, coordination in the form of standards for preventing

environmental damage resulting from human activity has been mentioned. Also

collaboration to address biodiversity loss has been considered as a possibility in this

respect.1158

Admittedly, the support of a realistic approach impels the recognition of the fact that states

will be self-interested. That is to say, they can be expected to act cooperatively only when

and for as long as it suits their interests.1159 Indeed, there is no need for cooperation in

circumstances where states can realise their desired outcomes by acting unilaterally.1160

However, it should equally be noted that "[a]lthough actors may prefer unilateral action, they

may find that they need to cooperate to attain outcomes protecting or advancing their

interests as well as to avoid outcomes to which they are averse. These positions may be

characterised as dilemmas of common interest or dilemmas of common aversion. While

regimes based on collaboration between actors may result from 'dilemmas of common

interest', 'dilemmas of common aversion' can be addressed through coordination.1161

There can be no doubt about the fact that such dilemmas are and have been present in the

Arctic, creating an impetus for cooperation. This is illustrated by the past, giving evidence of

cooperative behaviour between the various state agencies operating in the Arctic.1162 Most

interestingly for the purposes of this paper, the relationship between the US and Canada in

the field has been observed to be particularly strong.1163

This is not at all surprising. After all, coordinated environmental standards prevent each

state's efforts to address the environmental concerns from being undone by transboundary

leakage from other states.1164 The merit of such consistent standards also lies in the

simplification and reduction of costs of compliance on the part of international

operators.1165 As such, internationally-set rigorous standards and requirements, as well as

harmonised regulatory regimes for Arctic shipping seem to deserve a leading part on the

Arctic stage.1166 This explains the conclusion reached by others that it is to Canada's

1156 BROSNAN et al., 200. 1157 BROSNAN et al., 203. 1158 BROSNAN et al., 200. 1159 HUEBERT, R., "Cooperation or Conflict in the Arctic?" in NORDQUIST, M.H., MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in the Arctic Environment and the Law of the Sea, Boston, Martinus Nijhoff Publishers, 2010, (27) 31 (hereinafter HUEBERT (2010)). 1160 BROSNAN et al., 174. 1161 BROSNAN et al., 174-175. 1162 HUEBERT (2010), 33. 1163 Ibid. 1164 BROSNAN et al., 201. 1165 Ibid. 1166 MCDORMAN (2010), 249.

PART II, CHAPTER 2

107

advantage to cooperate with other Arctic states. Such cooperation should be perceived both

bilaterally and multilaterally.1167 Moreover, there even seems to exist a legal obligation to

that end, taking into account art. 123 UNCLOS.1168

In this respect, the IMO Guidelines for Ships Operating in Arctic Ice-Covered Waters and the

IACS Unified Requirements concerning Polar Class, can be recalled.1169 These instruments

ensure safer and cleaner navigation.1170 Likewise, the Arctic Council's instruments1171 and

the Canadian NORDREG system can be brought under the attention here. The latter has

rather recently been made mandatory (cf. supra) and serves the objective of enhancing safe

and expeditious movement of maritime transportation in Arctic waters. Also, it safeguards

the Arctic environment.1172

By way of conclusion, the message is clear: the question should be less about who owns the

NWP, and more about how it is used.1173 The added value of merely focussing on an endless

theoretical debate situated on thin ice, is limited. Instead, it would be more helpful to focus

on the strengthening of the coordination to address environmental concerns. This can be

realised either by adapting existing institutions or by implementing Arctic-specific

agreements.1174 This is exactly what the last part of this paper will briefly attempt, taking

into account the broader Arctic context.

1167 PHARAND (2007), 53. 1168 Ibid. 1169 MCDORMAN (2010), 249-250. 1170 Cf. BROSNAN et al., 201; MCDORMAN (2010), 249. 1171 BROSNAN et al., 201. 1172 PHARAND (2007), 49. 1173 READ, 441. 1174 BROSNAN et al., 201.


108

CONCLUSION

ith respect to the historic approach, it was explained that the vast array of

existing historical doctrines1175 within the context of the NWP has above all

illustrated how difficult it may be to prove a historical claim, and how easy it may

be to defeat such a claim.1176 Indeed, on the one hand the historic internal waters claim

doesn't further Canada's case. Rather, it draws attention to the fact that Canadian

sovereignty combined with a lack of enforcement capacity might be worse than having the

NWP wide-open to all as an international strait.1177 Thus, if anything, the historic approach

seems to have the detrimental effect of revealing Canada's inability to monitor and control

the Arctic to which it lays claim.1178 Also, the foregoing illustrates "the greatest shortcoming

of any claim based on historical title: the claims do not seem capable of aiding a fact-finder in

determining which nations should have sovereignty over what territory".1179 On the other

hand, Canada's position based on the argument of historic consolidation of title seems more

ambivalent. Still, the precise contours of this approach remain nebulous. In any case this

reasoning can only further Canada's case in conjunction with its straight baselines claim,

and there lies the problem.

While the establishment of straight baselines is a unilateral act, its validity at international

law remains subject to certain criteria. These were originally formulated by the ICJ, but the

Conventions gave birth to some new elements. Most notable among these are the provisions

of art. 5(2) 1958 Convention, resp. art. 8(2) UNCLOS. In the author's opinion, the legitimacy

of the Canadian straight baselines should be analysed on the basis of the UNCLOS, in first

instance qua conventional law. Even if this view would not be upheld, the principles of the

UNCLOS seem to apply to the Canadian case qua customary law.

Under the UNCLOS, legitimate support for both the Canadian and the US interpretations

seems plausible due to the ambiguous nature of the relevant provisions. Yet, it remains

doubtful whether the geographic prerequisites justifying the use of the straight baselines

method are present in the Canadian case. Rather than the Canadian coastline, it is foremost

Ottawa's rhetoric that seems unstable. As to the criteria respecting the actual construction

of straight baselines, Canada's baselines do seem to deviate considerably from the 'general

direction' of the coast. This makes its position problematic. Therefore, this paper subscribes

to the view that the validity of Canada's use of straight baselines respecting its Archipelago

cannot be upheld at international law.

What is more, regardless of the validity of these baselines, this approach does not support

Canada's claim of exclusive sovereignty over the waters of its Archipelago. These waters

were not previously considered internal waters, which is why a right of innocent passage

continues to exist either way (art. 8(2) UNCLOS). After all, the mere drawing of straight

baselines contradicts Canada's position that before 1985 these waters were considered

internal. Also, this conclusion is inevitable taking into account the clear foreign protests

respecting Canada's establishment of straight baselines. In addition, there is Ottawa's own

'inconsistent truth'.

1175 FARRENS, 669. The doctrine of uti possidetis (iuris) will not be elaborated on in this paper; Cf. FARRENS 668. 1176 FARRENS, 668. 1177 BYERS and LALONDE, 1199. 1178 PERRY, 671. 1179 FARRENS, 669.

W


109

Further, the US position that the waters of the NWP constitute a strait used for international

navigation cannot be supported under the present circumstances. True, the strait(s) of the

NWP undoubtedly meet the geographic criterion and qualify as legal straits. However, the

NWP cannot be said to have developed a history as a useful route for maritime traffic in the

sense of the functional criterion. This view is supported by several other standards,

indicating that the significance of the Passage as part of global trade patterns, even under

more supple standards tailored to polar circumstances, remains too limited at present.

This leads to the final conclusion that neither the Canadian claim, nor the US position seem

to adequately address the current reality of the Canadian Archipelago in general and the

NWP in particular. As such, the 'middle ground' solution seems to have the more merit,

meaning that the waters of the Canadian Archipelago constitute a combination of territorial

seas and EEZ, to which the respective regimes apply. More particularly, the waters of the

NWP - within the Archipelago - merely constitute a legal strait through territorial waters,

without entailing the regime of transit passage. From a practical point of view, the result is

such that vessels cannot pass through the NWP without entering Canada's territorial sea.

Therefore, they are subject to a suspendable right of innocent passage. However, it should

be understood that Canada retains a rather broad prescriptive and enforcement jurisdiction,

i.a. with respect to vessel-source pollution. In this respect, in particular art. 234 UNCLOS

deserves mentioning. However, looking into the future, it seems plausible that this analysis

might make way for a right of transit passage throughout the waters of the NWP. Indeed,

Canada should consider the possibility of an internationalisation of the Passage in the

future, as Arctic shipping is unquestionably on the rise.

Finally, putting the legal aspect of the debate in a broader context, it became clear that in

fact, the strengths and weaknesses of Canada's litigational position have little bearing. Up to

present, the issue has been treated largely as a political problem.1180 More particularly, the

numerous ambiguities that surfaced throughout this analysis illustrated that the issue is

highly unlikely to be willingly brought before an international court. Indeed, the outcome

would be unpredictable to a considerable extent, while there is much at stake for the parties

involved. This explains the attractiveness of a negotiated solution. Bearing this in mind, it

was considered that the question with respect to the NWP should be less about who owns it,

and more about how it is used. This insight invites to adopt a practical approach focussed on

the vessel to ensure actual protection of the fragile Arctic environment. In turn, this

approach implies strengthening coordination and cooperation.

1180 Cf. READ, 415.

PART III.

CONSIDERATIONS ON THE NEED

AND OPTIONS FOR REFORM

Experience without theory is blind,

but theory without experience is mere

intellectual play.

Attributed to Immanuel Kant (1724-1804)

PART III - INTRODUCTION

111

INTRODUCTION

s explained above, the question now rises whether the legal framework as defined

throughout this paper suffices to confront the Arctic's pressing needs. In the

following, some of the more notable deficiencies affecting the regime de lege lata,

some of which were already mentioned above, are identified. However, insofar as this part

attempts to look beyond the existing problems and to consider some of the proposed

solutions instead, the limited scope of this paper does not allow for a detailed analysis on

these deficiencies. Therefore, we will suffice with a brief reference to the main shortcomings

in the Arctic's regime de lege lata.

The identification of these shortcomings will further lead to the conclusion that the need for

reform is clear. However, the same cannot be said for the solution to these deficiencies. In

this respect, the author does not cherish the ambition to sell cut-and-dried answers. After

all, in first instance, it is highly doubtful whether such answers exist. In second instance, the

scope of this paper does not allow to develop pleadings for a specific model. Making a

meaningful contribution to this debate of the utmost complexity would require extensive

research. As such, it should be nothing less than the subject of a separate paper. Therefore, it

is not the author's intention to hurriedly take an outspoken position in a handful of pages, as

this would be nothing but joining the "many simplistic proposals on offer in this realm".1181

Instead, it seems much more meaningful to put some crucial considerations into perspective

in a debate that seems to suffer from exaggerations taking the form of scary scenarios and

provocative questions.1182 This is done by weighing competing conceptual frameworks

underlying the proposed options for reform against each other.

1181 YOUNG, 423. 1182 Ibid.

A

PART III

112

1. DEFICIENCIES OF THE CURRENT REGIME

1.1 DEFICIENCIES ON THE I NTERNATIONAL LEVEL

Admittedly, the UNCLOS is a remarkable instrument characterised by a comprehensive

nature, as well as a certain built-in flexibility. The latter enables it to adapt to new needs, at

least to some extent.1183 However, as the central cornerstone of the Arctic's regime, the

UNCLOS is burdened with the continued non-ratification by the US (cf. supra).1184 Indeed,

the non-applicability of the dispute settlement mechanism between the US and the other

Arctic coastal states, is deemed a significant gap.1185 This especially holds true considering

that the dispute settlement mechanism is not able to become part of customary

international law as a consequence of its procedural nature1186, so it requires ratification or

accession (cf. supra).1187 What is more, the Convention offers possibilities to nations that

have ratified it to opt-out of the dispute settlement mechanisms provided in its Part X. This

is a path all Arctic nations except Norway have chosen.1188 This fact has led to the

consideration that "[t]he treaty's substance hardly matters if there is no way to enforce its

provisions".1189

Also, despite its comprehensive nature which was emphasised above, its substantial scope

of application drops short from an integrated, cross-sectoral and ecosystem-based point of

view (cf. infra).1190 Indeed, states have come to recognise that the UNCLOS does not have

answers for all the new questions emerging in the law of the sea.1191 As such, some problems

that have recently risen are not dealt with at all in the Convention. An example would be the

legal regime of genetic resources in the seabed beyond the limits of national jurisdiction.1192

While other recent problems are dealt with in the Convention, they are in some cases

treated too summarily.1193 As such, the generality of the Convention's environmental

provisions, which are not tailored to the Arctic's specific needs, creates a significant

hurdle.1194 In this respect, reference could e.g. be made to the lack of pollution discharge

standards specific to the Arctic's unique and fragile ecosystem.1195 This especially holds true

considering the need for regional implementation resulting from this generality1196,

combined with the problems connected to the obligations of cooperation. Such obligations

flow from arts. 122-123 (respecting enclosed or semi-enclosed seas) and Section 2 of Part

XII of the Convention (arts. 197-201). An example of these problems would be the fact that

1183 TREVES, 49-51. 1184 FARRENS, 671; KOIVUROVA and MOLENAAR (2010), 48. 1185 KOIVUROVA and MOLENAAR (2010), 48. 1186 Ibid. 1187 WOLFRUM, R., "The Legal order for the Seas and Oceans" in NORDQUIST, M.H. et al. (eds.), Entry into Force of the Law of the Sea Convention, Den Haag, Nijhoff, 1995, (161) 178. 1188 FARRENS, 670-671. 1189 FARRENS, 671. 1190 MALLOY, 492-493. 1191 TREVES, 53. 1192 Ibid. 1193 Ibid. 1194 Cf. DIAMOND, H.J., "The Need for Ecosystem-Based Management of the Arctic" in NORDQUIST, M.H., MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in the Arctic Environment and the Law of the Sea, Boston, Martinus Nijhoff Publishers, 2010, (389) 390 (hereinafter DIAMOND); FARRENS 673; MALLOY 492. 1195 MALLOY, 492. 1196 DE LA FAYETTE, 561; KOIVUROVA and MOLENAAR (2010), 44 and 46.

PART III

113

the Convention's obligations on cooperation are often subject to qualifiers such as "shall

endeavour" (cf. art. 200).1197

Moreover, it has been pointed out that the UNCLOS, by allowing coastal states sovereign

rights or jurisdiction on certain maritime areas, causes current discussions to focus on the

governance of the relevant activities on the high seas. However, the reasons for discussing

and developing ocean governance do not stop at the 200-mile line.1198 Theoretically

speaking, this seems a very interesting consideration to keep in mind in function of reforms.

Yet, entering into discussions that question recently obtained and hard-fought rights is

unacceptable to most coastal states.1199 Indeed, this understanding is among the aspects that

cast doubts on the political feasibility of the creation of a new comprehensive, legally

binding treaty regime. After all, it has been remarked that a treaty which forces the Arctic

states to relinquish control over the region, can be expected to meet serious hindrances.1200

Considering the eventuality of such a treaty being modelled after the Antarctic Treaty

System, these considerations become even more relevant (cf. infra).1201

Not only the UNCLOS bears the mark of several crucial deficiencies. The same fate has

befallen the sectoral instruments established by the IMO, addressing shipping and vessel-

source pollution. As was mentioned above, a first problem in this respect is the fact that not

all Arctic coastal states are parties to the relevant international instruments.1202 Further, it

should be recalled that there is a lack of (binding) rules tailored to the Arctic.1203 Also, there

are gaps in the coverage of the Arctic area in terms of monitoring, contingency planning and

preparedness for pollution incidents.1204 To crown everything, ensuring compliance with

and enforcement of the applicable international rules and standards, as well as national laws

and regulations, remains problematic.1205

1.2 DEF I CI EN CI ES ON T HE R EGI ONA L L EV EL

On the regional level, the Arctic Council too faces significant deficiencies. As was mentioned

above, especially its role as a promoter of soft law has been criticised. The Council lacks the

force to impose legally binding obligations1206, as well as follow-up or compliance

mechanisms.1207 This undermines a proactive attitude of its member states1208 and the

effectiveness of its own structure.1209 Also, it should be recalled that this institution is

project-driven, hence not an operational body.1210 In addition to these flaws, the Council is

deprived of structural funding1211 and suffers from the increasingly complex structure of its 1197 KOIVUROVA and MOLENAAR (2010), 46-47; Cf. PHARAND, 53. 1198 Cf. LARKIN, J.E.D., "UNCLOS and the Balance of Environmental and Economic Resources in the Arctic", Geo. Int'l Envtl. L. Rev. 2009-2010, (307) 335-336; TREVES, 58. 1199 TREVES, 58. 1200 FARRENS, 677. 1201 DE LA FAYETTE, 553-554. Cf. SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries", 54-55. 1202 KOIVUROVA And MOLENAAR (2010), 52; MOLENAAR (2008), 318. 1203 Ibid. 1204 KOIVUROVA and MOLENAAR (2010), 52; MOLENAAR (2008), 319. 1205 Ibid. 1206 FARRENS, 673; KOIVUROVA and MOLENAAR (2010), 8; MALLOY 491-492. 1207 DE LA FAYETTE, 561. 1208 FARRENS, 673. 1209 DE LA FAYETTE, 561. 1210 KOIVUROVA and MOLENAAR (2010), 8. 1211 DE LA FAYETTE, 561; KOIVUROVA and MOLENAAR (2010), 9.

PART III

114

constitutive instrument.1212 More fundamentally, its scope of application doesn't come up to

the mark from a cross-sectoral point of view.1213

Likewise, the OSPAR Convention only applies to certain parts of the Arctic marine area1214.

What is more, its material scope of application displays crucial gaps in terms of an

integrated ecosystem-based approach.1215

1.3 DOMESTIC LAW AS A REMEDY?

As explained above, in the current regime also the domestic level plays a significant and

valuable role. However, domestic law alone cannot be expected to hold fundamental

solutions to overcome the shortcomings on the international and regional levels. After all, in

a certain sense it leads to an 'uncoordinated mishmash' of regulations offering a protection

of a variable level. Also, it can by definition only offer a 'piecemeal solution' to the

transboundary problems the Arctic is presently confronted with, as these often have their

cause outside the Arctic region. Moreover, some have pointed out that a domestic approach

could cause a so-called 'race-to-the-bottom'. This means purposely relaxing environmental

standards to attract business or deflect costs, that is to say to gain economic advantage. In

addition, reliance on domestic law has been said to bear the potential to induce what is

called the 'free-rider syndrome'. This implies states to take advantage of the benefits of

measures enacted by other states at no cost to them, instead of spending their own

resources on pollution prevention and enforcement. Finally, domestic laws may serve

hidden agendas, like strengthening sovereignty claims (with the notable example of the

AWPPA).1216

2. SOME CONSIDERATIONS ON THE OPTIONS FOR REFORM AND

THEIR UNDERLYING CON CEPTUAL FRAMEWORKS

2.1 THE OPTIONS FOR REFORM: A SPECTRUM FROM MIXED REFORM TO AN

ARCTIC TREATY?

The identification of these shortcomings supports the basic premise for the final section of

this paper, namely that the need for reform is not disputed as such, not even in the 2008

Ilulissat Declaration.1217 This view was very aptly reflected in the statement that "[t]he

governance and regulatory regime that currently exists in the Arctic may have been adequate

for a hostile environment that allows very little human activity for most of the year. But when

the Arctic Ocean becomes increasingly similar to regional seas in other parts of the world for

longer and longer parts of the year, adequacy cannot be assumed and reform of the regime is

indispensable".1218 However, while the need for reform is clear, the question remains in

which direction the current regime should move de lege ferenda. Indeed, a wide array of

solutions with endless variations on reform has found its way into the international

literature.1219

1212 FARRENS, 673. 1213 DE LA FAYETTE, 561. 1214 KOIVUROVA and MOLENAAR (2010), 52-53. 1215 DE LA FAYETTE, 558. 1216 MALLOY, 487 and 494. 1217 KOIVUROVA and MOLENAAR (2010), 55. 1218 KOIVUROVA and MOLENAAR (2010), 96. 1219 FARRENS, 673.

PART III

115

The debate on options for reform seems to be characterised by a spectrum of options1220. On

the one end, there is a so-called 'mixed reform regime' which has been presented as a

flexible approach to norm-building within existing frameworks.1221 This option would mean

to strengthen and reform the current framework defined above, addressing the

inefficiencies and gaps. This would be realised mainly by focussing on the UNCLOS and the

Arctic Council.1222 Indeed, it was mentioned above that strengthening the Arctic Council is

among the goals pursued by i.a. the Canadian policy. Also, this is the view expressed by the

Arctic states in the 2008 Ilulissat Declaration, stating that they see no need to develop a new

comprehensive international legal regime to govern the Arctic Ocean (cf. supra).1223 On the

other end of the spectrum, the creation of a comprehensive, legally-binding 'Arctic Treaty'

(or 'Arctic Charter') has been defended by several scholars.1224 Such a treaty could be either

open to participation on the part of non-Arctic legitimate stakeholders1225. Also, it could be

characterised by a regionally-scaled party structure. For example, the establishment of an

international treaty for the protection of the Arctic is advocated by the EU. The initial

impetus behind the European interest in the Arctic was motivated by concerns of European

security.1226 By now the focus has shifted towards the 'softer' issues that are linked to

increased economic activity in the region. Examples of this are the environment and search

and rescue (SAR) capacity.1227

However, in the author's opinion, it should be emphasised that this 'dichotomy' between

fiddling with the existing regime and creating something new has to be nuanced. After all,

what is really needed are "regulatory arrangements with teeth".1228 It seems probable to the

author that such measures may in part be put in place through existing mechanisms, while

they may in part also be introduced through what has been called 'other appropriate

agreements or arrangements'.1229 After all, while on the one hand valuable and clearly

holding potential, the current regime on the other hand suffers from certain structural

shortcomings. These make it likely that the current structures are in certain cases ill-

equipped to serve as the sole basis for reform.1230 For example, with respect to the

introduction of rather sensitive measures, it should be kept in mind that amending or

revising the UNCLOS is difficult. Indeed, to its framers, the stability of its rules was a greater

concern than its adaptability.1231

Moreover, even if one were to focus on the creation of a new regime, this would by no means

imply "[r]adically throwing out everything that has been gradually and painstakingly created

1220 For the representation as a spectrum, see HERTELL, H.H., "Arctic Melt: The Tipping Point for an Arctic Treaty", Geo. Int'l Envtl. L. Rev. 2008-2009, (565) 580 (hereinafter HERTELL). 1221 SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries", 54. 1222 Ibid.; FARRENS, 673. 1223 HERTELL, 581; KOIVUROVA and MOLENAAR (2010), 44. 1224 See inter alia BORGERSON, 75; HERTELL, 582-583; HUEBERT, R., "The Need for an Arctic Treaty: Growing from the United Nations Convention on the Law of the Sea", Ocean Yearbook, vol. 23, 2009, (27) 27 (hereinafter HUEBERT (2009)); MALLOY, 499; WATSON, M., "An Arctic Treaty: A Solution to the International Dispute over the Polar Region", Ocean & Coastal L. J. 2008-2009, (307) 332 (hereinafter WATSON); YOUNG, 438. 1225 YOUNG, 438. 1226 EBINGER and ZAMBETAKIS, 1231; OFFERDAL, 875; YOUNG, 438. 1227 OFFERDAL, 876. 1228 Cf. KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 286; YOUNG, 441. 1229 WEST, M.B., "Arctic Warming: Environmental, Human, and Security Implications", Vand. J. Transnat'l L. 2009, (1081) 1107 (hereinafter WEST). 1230 Cf. respecting the Arctic Council FARRENS, 674. 1231 FARRENS, 674; TREVES, 49.

PART III

116

and maintained". This would make no sense.1232 Instead, the author adheres to the view that

even in this case, the achievements of the past should be cherished and built on.1233 E.g., on

the one hand, pleadings for a new treaty regime do not as such preclude the possibility for

such a treaty to be negotiated within the context of the Arctic Council. In this process, its

responsibilities, working groups and members could be assumed.1234 On the other hand,

existing frameworks can be strengthened in addition to the creation of what has been called

a more united and cooperative model for regional governance.1235

After all, despite deficiencies and gaps, environmental issues and technical problems to a

large extent already have legal solutions. In that sense, the author subscribes to the view

that there is a firm legal structure providing a solution for many Arctic issues with a

potential for much more.1236 As such, pleadings for a new regime do not per se deny the

value of the existing structure. Rather, they attempt to provide a means to breathe new life

into the potential the existing structure holds. Seen from that perspective, even the creation

of a new treaty is in a certain way but strengthening the current regime. After all, this

essentially means enriching the general framework it offers with tailor-made instruments

that fit in with the general principles as set out in the UNCLOS.

As such, the author adheres to the view that when analysing options for reform, the first

question should at all times be what can be achieved on the basis of the current Arctic Ocean

governance system.1237 Resorting to a proliferation of new regulations supplementing it,

shouldn't be the first step. This insight has led some commentators, as well as the Arctic

Council and the Arctic Five involved in the Ilulissat Declaration1238, to the conclusion that

"[t]he real need at this stage therefore seems to be the implementation of existing treaties and

the further development of existing governance frameworks".1239

2.2 COMPETING UNDERLYING CONCEPTUAL FRAMEWORKS : ECOSYSTEM-BASED MANAGEMENT VERSUS (POLITICAL) REALISM

§ 1. THE IMPORTANCE OF GEOPOL ITICAL CONSIDERATION S TO A WELL-REASONED ANALYSIS

While the polarisation of the debate on options for reform should be nuanced in a certain

sense in the author's opinion, there is certainly some form of antagonism involved. Indeed,

the perception of the reform debate in terms of a spectrum with opposing ends appears to

be generated by two competing underlying conceptual frameworks. These concepts are

used to organise the thoughts about specific policy issues. The two discourses involved have

been described as on the one hand the 'discourse of geopolitics/political realism' and on the

other hand the 'discourse of ecosystem-based management'.1240 On the one hand,

ecosystem-based management is the conceptual basis underlying the notion of an 'Arctic

1232 KOIVUROVA and MOLENAAR (2010), 97. 1233 Cf. ibid.; Cf. HERTELL, 589. 1234 DE LA FAYETTE, 563. 1235 JEFFERS, J., "Ensuring the Protection of Arctic Marine Biodiversity in the Face of Climate Change" in NORDQUIST, M.H., MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in the Arctic Environment and the Law of the Sea, Boston, Martinus Nijhoff Publishers, 2010, (323) 360. 1236 DE LA FAYETTE, 565; Cf. HOEL, 455. 1237 HOEL, 448. 1238 EBINGER and ZAMBETAKIS, 1231. 1239 Cf. HERTELL, 580, referring to CORELL, H.; HOEL, 444; Cf. STOKKE, O.S., "A Legal Regime for the Arctic? Interplay with the Law of the Sea Convention", Marine Policy 2007, (402) 408 (hereinafter STOKKE (2007)). 1240 YOUNG, 431-432.

PART III

117

Treaty' as a specific option for reform. This option is characterised by a comprehensive and

legally binding nature. Its scale of participation is either focussed on the Arctic states1241, or

open to the broader community of legitimate stakeholders.1242 On the other hand, the

political realism discourse questions the political and practical feasibility of such an

approach.

In the author's opinion, it should at all times be kept in mind that "(...) there is no sense in

formulating an agreement that has no chance of passing in the legislatures or parliaments of

the relevant Arctic nations. Likewise, enacting politically convenient but ineffective measures

would be nothing more than a waste of time".1243 True, this paper operates within a legal

frame of reference. Nonetheless, the importance of geopolitical and practical considerations

to a well-reasoned analysis of realistically possible solutions cannot seriously be denied.1244

Therefore, in the following the highly appealing conceptual framework of ecosystem-based

management, integrated in the comprehensive approach of an 'Arctic Treaty', is put into

perspective. This is done by taking a closer look at the main features of the notion of an

'Arctic Treaty' from a political realism/pragmatic point of view. The author's intention here

is not so much to preclude the option of an 'Arctic Treaty'. Rather, the goal is to make a

modest attempt to put the basic premises of the debate into a nuanced perspective. As such,

the final section of this paper intends to be the starting point for further research and

discussion, rather than a finishing point.

§ 2. TOWARDS A COMPREHENSIVE APPROACH?

A. PLE ADIN GS FO R A COM PR E HENSIVE TRE ATY AI ME D AT AN IN TE GRATED , CROSS-SECTO RAL AN D E COSYS T EM-BASED APPRO ACH

The concept of ecosystem-based ocean management (cf. supra) has been considered

perhaps the most significant issue in international oceans management over the last decade.

This concept saw the light of day through the combined pressures from economic activities

and environmental stressors.1245 In general terms, ecosystem-based management adopts a

holistic, i.e. comprehensive, and adaptive approach. As such, it recognises the inextricable

link between ecological, social (including community concerns and traditional knowledge),

economic and institutional considerations1246. Applied to the Arctic, it implies a holistic

approach thinking of the Arctic as a complex and dynamic socio-ecological system in

itself.1247 Also, it implies the recognition as a matter of particular importance of the

connections between the Arctic and the Earth System as a whole (cf. Part I).1248 This means

addressing interrelated Arctic issues in an integrated manner by devising cooperative

regimes, rather than letting battles over jurisdictional claims result in fragmentation.1249 As

such, the objective is not merely aimed at environmental preservation. Rather, the priority is

to ensure that the ecosystem can continue to provide human services. This is established

1241 Cf. HERTELL, 586. 1242 YOUNG, 438. 1243 FARRENS, 656. 1244 HERTELL, 582. 1245 HOEL, 453. 1246 DIAMOND, 389. 1247 YOUNG, 432. 1248 YOUNG, 432-433. 1249 YOUNG, 432.

PART III

118

through the acknowledgement of the fact that there are confines to the quantity and types of

uses and activities the ocean can sustainably support.1250

This ecosystem-based approach fits in with the broader pleadings for 'integrated, cross-

sectoral and ecosystem-based ocean management'.1251 Obviously, these pleadings are

attractive from a legal-theoretical point of view. Indeed, they have been invoked as an

appealing model to remedy the inability of the single-sector management approach to

adequately address the extensive and rapid changes. This way, long-term ecosystem-health

can be ensured.1252 The idea is in fact that the current laws and regulations, based on single-

sector services and near-term goals, are the fragmented result of a piecemeal evolution

during past decades. They are perceived as a patchwork of obligations. Yet, according to this

discourse the goal should be "a carefully premeditated, internationally-coordinated effort

aimed at constructing a coherent legal regime".1253 As such, the current regime is said to at

best create inefficiencies and at worst lead to conflicts. Thus, it fails to sustain ecosystems in

the long-term1254, regardless of the amount of implementation.1255 In support of this stance,

there is the view that a species-by-species, sector-by-sector management approach cannot

be expected to succeed. After all, too many aspects of the Arctic marine environment are

being affected at too rapid a pace.1256

This conceptual framework of integrated, cross-sectoral and ecosystem-based management

has been used to highlight the intertwined nature of the challenges the Arctic currently

faces.1257 In turn, this has generated numerous proposals to create a comprehensive, binding

'Arctic Treaty', that guarantees an orderly and collective approach.1258 Addressing the

current challenges in the Arctic on the basis of an integrated, coherent, overarching, all-

inclusive approach, plays a pivotal role in these proposals.1259 While this discourse leaves

some scope for the development of sectoral arrangements, it considers the key to

sustainability to lie in paying attention to numerous complex linkages. These arise from

interactions between human activities and biophysical forces.1260

B. THE POLI TICAL AN D PRA CTI CAL FE ASIBIL ITY OF A COM PREHE NS IVE A PPRO ACH

The principles of the ecosystem-based management discourse have been embraced and

advocated by many. Moreover, an integrated approach is recognised in the Preamble to the

UNCLOS, in which the framers of the Convention showed to be "conscious that the problems

of ocean space are closely interrelated and need to be considered as a whole".1261 However, in

practice it remains a large step between recognising the need for a more comprehensive

1250 DIAMOND, 393. 1251 For the term, see KOIVUROVA and MOLENAAR (2010), 79. 1252 DIAMOND, 389. 1253 DIAMOND 393; JOYNER, 244. 1254 DIAMOND, 393. 1255 HERTELL, 582. 1256 DIAMOND, 390; Cf. WATSON, 332. 1257 Cf. HERTELL, 582. 1258 Cf. HERTELL, 582, quoting BORGERSON, 75; Cf. HUEBERT (2009), 27. 1259 FRENCH, D. and SCOTT, K., "International Legal Implications of Climate Change for the Polar Regions: Too Much, Too Little, Too Late?", Melb. J. Int'l L. 2009, 631-654; KAILIS, A., "Towards the Adoption of an Integrated Approach to the Governance of the Arctic Ocean: The European Perspective", Ocean Yearbook, vol. 24, 2010, (445) 445 and 451-452; Cf. WEST, 1107. 1260 YOUNG, 432-433. 1261 Cf. HOEL, 453; Cf. KAILIS, 451.

PART III

119

management approach and implementing one.1262 As such, detailed governance systems for

specific regions have still to be established.1263

More particularly, in first instance there seems to be a problem from the point of view of

political realism. The path of an integrated approach certainly has great appeal from a legal-

theoretical point of view. However, it should not be neglected that Arctic states do not

demonstrate the political will to move in this direction. Instead, cooperative approaches are

preferred.1264 Indeed, despite its modest size, at least this much became clear in the 2008

Ilulissat Declaration (cf. supra).

Secondly, challenges of a practical nature might cast a shadow on the attractive and saleable

proposals for a new comprehensive 'Arctic Treaty'. Admittedly, it has been considered that

the implementation of ecosystem-based ocean management may be in a more advanced

stage than is commonly assumed. Yet, at the same time, major challenges are associated

with it.1265 These substantial obstacles1266 relate to the production of an appropriate

knowledge base for it, the choice of effective policy instruments, and inter-agency

cooperation across multiple sectors of governance.1267 Some have contended that these

practical hurdles are outweighed by the compelling circumstances afflicting the Arctic

environment today.1268 The idea here is essentially that while the Arctic poses new

challenges, it also faces a greater need for comprehensive resource management than

almost anywhere else in the world.1269 This may be perfectly true considering what was

described in Part I of this paper. However, even with a widespread perception of the

accelerating pace of climate change and the dramatic increase in Arctic environmental

degradation, the question remains whether political leaders and publics will be prompted to

take significant steps.1270 In particular, it remains doubtful whether this would suffice to

generate a movement towards a cross-sectoral and ecosystem-based approach for the Arctic

region as a whole.

§ 3. TOWARDS A LEGALLY BINDING AP PROACH?

A. THE PLE ADIN GS FO R A H ARD-L AW APPRO ACH AS A RE ACTION TO THE CURREN T

SOFT-L AW RE GIME

On the one hand soft law is acknowledged to offer some advantages1271 that should be

further cultivated.1272 Also, soft-law arrangements may have the potential to serve as

stepping stones, at least in the right circumstances.1273 On the other hand however, an often-

heard criticism with respect to the current framework is the overall lack of legally binding

rules (cf. supra). This is especially the case when the Arctic Council is concerned. More

particularly, the severe deficiencies that accompany a soft-law approach are perceived as

1262 DIAMOND, 392. 1263 DIAMOND, 393. 1264 SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries", 55. 1265 HOEL, 454; Cf. WEST, 1107. 1266 HERTELL, 581. 1267 HOEL, 454. 1268 HERTELL, 582. 1269 DIAMOND, 396. 1270 HAFTENDORN, H., "Soft Solutions for Hard Problems", International Journal 2010, (809) 824 (hereinafter HAFTENDORN). 1271 KOIVUROVA and MOLENAAR (2010), 79. 1272 HOEL, 455. 1273 HAFTENDORN, 823-824.

PART III

120

problematic.1274 The idea was most expressively reflected by one commentator, stating that

"[g]iven the consistent over-exploitation of resources and frequent short-sightedness of states,

the lack of binding regional regulations on resource management practically places an all-you-

can-eat buffet sign on the Arctic".1275 As such, the current voluntary approach has been

considered a first step, though insufficient to adequately protect the Arctic and in need of

reinforcement.1276

Therefore, an integrated, cross-sectoral and ecosystem-based approach is generally

considered in terms of a legally binding treaty.1277 Such a hard-law approach is more

particularly expected to provide considerable advantages, such as: "(...) encouraging greater

political and bureaucratic commitments; establishing firmer institutional and financial

foundations; transcending the vagaries of changing governmental viewpoints and shifting

personnel; giving 'legal teeth' to environmental principles and standards; raising the public

profile of regional challenges and cooperation needs; and providing for dispute resolution

mechanisms".1278 Unfortunately, the scope of this paper does not allow for further

elaboration on these alleged advantages.

B. THE POLI TICAL FE ASIBI LI TY OF A BINDING TR E ATY

However, if the path of a legally binding treaty were to be chosen, the significant drawbacks

that have been emphasised by opponents should be considered in the calculations. Speaking

in terms of political realism and considering the Ilulissat Declaration, it doesn't seem very

likely that an agreement would be reached on the terms of such an 'Arctic Treaty' any time

soon (cf. supra)1279.

This especially holds true insofar as an 'Arctic Treaty' would be modelled after the ATS (cf.

supra), which is one of the models a binding treaty could follow. Indeed, recalling what was

mentioned above, it is highly unlikely that the Arctic states would be willing to give up or

'freeze' their sovereignty. Likewise, it would be utopian to expect that the Arctic states will

refrain from resource exploitation, and 'internationalise' the area. It would be highly

unrealistic to envisage a future in which the Arctic is turned into a marine park or marine

protected area, similar to Antarctic continental regime.1280 In brief, the political reality

seems to be such that the common good will not suffice as an incentive for the involved

nations to join a treaty that forces them to relinquish control over this valuable region.1281

For that matter, the view has been expressed that there are some significant differences that

make it impractical to assume that drafting a treaty similar to the ATS for the Arctic will

have the desired outcome.1282 In the author's opinion, certain elements of the ATS model

will certainly prove to be valuable. One could think of the notion that certain areas need

special protection for various purposes, as laid down in Annex V to the Madrid Protocol1283.

1274 Cf. KOIVUROVA and MOLENAAR (2010), 79. 1275 MALLOY, 491. 1276 EU Commission, Summary Report, 17; FARRENS, 656 and 673; MALLOY 510. 1277 See inter alia HERTELL, 582-583; YOUNG, 438. 1278 KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 286-287. 1279 Cf. YOUNG, 438. 1280 DE LA FAYETTE, 553-554. 1281 FARRENS, 677. 1282 FARRENS, 675; Contra MALLOY, 499. 1283 KOIVUROVA and MOLENAAR (2010), 85.

PART III

121

However, the author is also under the impression that an 'Arctic Treaty' modelled entirely

after the ATS, would in all probability not work.1284

Even if not modelled after the ATS, in order to be 'politically palatable', a binding 'Arctic

Treaty' would in any case make it necessary to understand and respond to each individual

nation's reasons for refusing to sign such a treaty. This is particularly true for the more

influential nations, namely the US, Canada and the Russian Federation.1285 Also, it has been

contended that an agenda change, as well as a broadening of the agendas, would be needed.

More specifically, the emphasis should be put on a regime based on common security,

instead of on national sovereignty.1286

C. PRACTI CAL CH ALLENGES POSED BY THE CRE ATION OF A BINDIN G TRE ATY

Besides the 'politically charged'1287 dimension of this scenario, numerous commentators,

taking a pragmatic position, have highlighted the practical hindrances. In first instance they

have warned for the fact that reaching consensus on the need for a new agreement is

difficult. Indeed, negotiations and preparatory processes can expected to be long and costly.

Moreover, political, constitutional and legislative obstacles serve as barriers to

ratification.1288 Indeed, drafting a comprehensive and legally binding treaty would be a

tremendous task. This applies all the more, considering the differing interests of Arctic

states on such key issues as shipping and oil and gas activities. Moreover, many of these

issues are already regulated in global or regional treaties.1289

Admittedly, it would be incorrect to say that negotiating a treaty always and by definition

takes a long time1290 and it should be understood that the UNCLOS is not a representative

example. On the contrary, it may represent the most difficult process ever tackled by the

international community.1291 Also, there is a 'common manoeuvre' designed to speed up the

process of treaty-making, namely avoiding contentious issues, hence restricting the content

of the agreement.1292 However, it should be recalled that the purpose of an 'Arctic Treaty'

would be to provide a comprehensive, integrated approach. Moreover, in any case it remains

a fact that the negotiation of treaties typically takes longer than negotiating soft-law

instruments1293. More particularly, periods of four years or longer are not uncommon.1294

Some are willing to accept this as the price that must be paid for having ambitious

regulation in place.1295 Others however, take a pragmatic stance. They consider that "(...) a

messy process that yields effective governance with respect to some important issues seems

preferable to a more comprehensive and orderly [ambitious, if you like] process that fails to

achieve success across the board".1296 There is certainly something to be said for the latter

view. Indeed, there is the risk of a 'serious mismatch' between the pace of change in the

1284 Cf. HERTELL, 585. 1285 FARRENS, 677-678. 1286 HAFTENDORN, 824. 1287 YOUNG, 438. 1288 HERTELL, 581; Cf. KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 287. 1289 STOKKE (2007), 408. 1290 KOIVUROVA and MOLENAAR (2010), 80. 1291 Ibid. 1292 YOUNG, 439. 1293 KOIVUROVA and MOLENAAR (2010), 80. 1294 YOUNG, 439. 1295 KOIVUROVA and MOLENAAR (2010), 80. 1296 YOUNG, 441.

PART III

122

Arctic's dynamic processes on the one hand, and the ability of the legal regime to evolve and

adjust to keep up with these processes on the other hand.1297

The latter leads us to another major drawback of legally binding agreements: they are

usually difficult to adapt to changing circumstances in a timely manner, especially after they

have entered into force.1298 Although examples to the contrary exist1299, it is perhaps not

very likely that an 'Arctic Treaty' would be among them.1300

Also, a soft-law approach has been considered advantageous in the sense that treaty

negotiations risk crystallising so-called 'lowest common denominator standards'.1301

Instead, a soft-law approach allows for more substantive and innovative commitments

according to some.1302

Another hurdle relates to the position accorded to indigenous peoples. As mentioned above,

Indigenous People's Organisations can be said to have acquired a 'high profile' in the Arctic

Council.1303 Admittedly, the customary law of treaties does not per se pose obstacles in this

respect.1304 Nonetheless, some have contended that in practice, binding treaties do not

accord roles to non-state actors that are commensurate with their importance in the

relevant system.1305

Finally, some suspect that the creation of a new regime would add another layer of

complexity to an already fragmented legal regime. Meanwhile, it is uncertain whether Arctic

nations will ultimately comply with their new obligations.1306 In addition to this argument,

the lack of implementation of existing agreements relevant to the Arctic has been

emphasised.1307 However, a comprehensive and legally binding approach could equally be

viewed as an opportunity to "(...) build upon, tie together, and make enforceable the "building

blocks" of the existing legal regime".1308 These reconciling words are also reflected in the

statement that "[b]ringing all the issues together within a structured legally binding

framework would facilitate the elaboration of an overall plan for sustainable development and

would help to ensure its implementation."1309.

§ 4. TOWARDS A REGIONALLY- OR INTERNATIONALLY-SCALED APPROACH?

Also, politics will certainly interfere with respect to the scale of a new legally binding

comprehensive treaty. Some envisage an 'Arctic Treaty' as open to the international

community1310, or more commonly, to non-Arctic states with substantial ties to the

region1311, i.e. the so-called 'legitimate stakeholders'.1312 These commentators essentially

emphasise that more than five states need to be bound by the new measures, if we are to

1297 YOUNG, 440. 1298 YOUNG, 439. 1299 Cf. KOIVUROVA and MOLENAAR (2010), 80. 1300 YOUNG, 440. 1301 See also KOIVUROVA, MOLENAAR and VANDERZWAAG (2009), 287. 1302 HERTELL, 581. 1303 YOUNG, 430. 1304 KOIVUROVA and MOLENAAR (2010), 80. 1305 YOUNG, 439. 1306 HERTELL, 581; KOIVUROVA, MOLENAAR and VANDERZWAAG, 287. 1307 KOIVUROVA, MOLENAAR and VANDERZWAAG, 287. 1308 HERTELL, 581. 1309 DE LA FAYETTE, 564. 1310 MALLOY, 502-503. 1311 FARRENS, 676. 1312 YOUNG, 438.

PART III

123

ensure the Arctic's survival.1313 Others however, concluded that a regional rather than a

global approach should be the aim1314. Therefore, they consider a 'unified regional

ecosystem management agreement'.1315 These authors contend that an exclusive gathering

of the Arctic nations with common purposes will yield better results.1316

As to the latter, there is logic behind the reasoning that success in integrated, cross-sectoral

ecosystem-based oceans management depends to a significant extent on its spatial

delimitation, i.e. its scale. Indeed, an approach with a global scale would not allow for much

operational impact.1317 In this context, some feared for the important dynamism regarding

substantive regulation of economic activities in case of a globally applicable governance

framework.1318 However, it has been observed that increasingly sharp differences regarding

the identity of Arctic stakeholders have seen the light of day through the current wave of

interest in the Arctic affairs.1319 More particularly, the growing difficulty to exclude actors

like China, Japan and the EU when it comes to negotiating deals regarding Arctic issues has

been highlighted. This evolution is explained by the waning position of the US, which is no

longer able to get its way as the world's sole superpower.1320 Indeed, these actors are likely

to consider the Arctic as too important to be left to the Arctic states, if the forecasts

regarding the region's potential in terms of natural resources prove to be correct.1321 Yet, it

has been noted that for the time being, the EU still has a long way to go to get a stronger

foothold in the region. This is particularly the case with respect to the Russian

Federation.1322 In any case, the political reality will prove to be an important factor to take

into consideration in the debate on the identity of the relevant stakeholders in a new

comprehensive regime for the Arctic.

§ 5. THE WAY FORWARD?

Looking towards the future, it can be noted that in practice the antagonism between political

realism and ecosystem-based management too could be nuanced. Admittedly, it is probably

correct to say that both discourses are in theory to a certain extent incompatible with one

another. However "(...) there is nothing new about the occurrence of cognitive dissonance in

the world of public policy. It is perfectly possible, under the circumstances, that neither of these

discourses will triumph over the other in the near future and that many debates about policy

issues in the Arctic will take the form of arguments between those who see the issues through

the lenses of these disparate discourses".1323

Indeed, the author has expressed the nuanced view above that facing the challenges the

Arctic is currently confronted with, will in all likelihood require to build on existing

practices and institutional structures.1324 In other words, an interplay between the existing

1313 MALLOY, 503. 1314 HERTELL, 586. 1315 WEST, 1107. 1316 HERTELL, 586. 1317 KOIVUROVA and MOLENAAR (2010), 58. 1318 STOKKE, O.S., "Environmental Security in the Arctic: The Case for Multilevel Governance", Int'l J. 2010-2011, (835) 843. 1319 YOUNG, 428. 1320 Cf. OFFERDAL, 876; Cf. WEBER and ROMANYSHYN, 860; YOUNG, 432. 1321 YOUNG, 430. 1322 OFFERDAL, 877. 1323 YOUNG, 434. 1324 HOEL, 454.

PART III

124

framework1325 and a new comprehensive arrangement, or several individual new

arrangements, will be required. In that sense, both an approach taking account of what is

feasible in political terms and an ecosystem-based approach may illuminate the way

forward. This could be seen in the sense that at a minimum, each individual regime should

incorporate ecosystem-based management principles.1326 As such, the philosophy of

ecosystem-based management may be propagated on a smaller scale, while not necessarily

immediately achieving an integrated, cross-sectoral approach. This way, the need for a

number of pragmatic steps may be recognised.1327 Such individual steps may in the short

term at least ensure protection of the environment from further degradation. This could be

realised by addressing specific problems of governance from an ecosystem-based point of

view, to the extent possible.1328 This is perhaps a realistic goal in anticipation of a more

integrated approach that cuts across different sectors of governance. In the longer term,

attempts can be made to integrate management across and among all these uses on an

ecosystem basis. Some have considered this as a more forward-looking and ambitious

goal.1329

1325 STOKKE (2007), 408. 1326 WEST, 1107. 1327 YOUNG, 423. 1328 Cf. FARRENS, 678. 1329 WEST, 1107.

PART III - CONCLUSION

125

CONCLUSION

he last part of this paper opened with the assessment that the current legal regime

applicable to the Arctic is in need of reform, as it suffers from some significant

deficiencies both on the international and regional level. As to the former, this holds

true for both the UNCLOS and the sectoral instruments established primarily by the IMO. On

the regional level, structural problems respecting both the Arctic Council and the framework

that was called into being by the OSPAR Convention were unearthed. Also, on the one hand

it is clear that domestic law alone cannot serve as a remedy for these problems. On the other

hand, these structural deficiencies explain why the existing international and regional

elements in the Arctic's regime can at least in some instances be expected to be ill-equipped

to serve as the sole basis for reform.

The debate respecting the options for reform seems to be conceived in terms of a spectrum.

On the one end there are those advocating a mixed reform regime, stressing the need for

implementation and development of the existing framework. On the other hand, there is the

proposal of giving birth to a new, comprehensive and legally binding 'Arctic Treaty', with

either a regional or international party structure. While the author expressed the view that

this dichotomy should in practice be nuanced, the polarisation of the current debate on

options for reform seems due to two competing underlying conceptual frameworks. On the

one hand, there is the more theoretical discourse of ecosystem-based management,

preferably through an integrated and cross-sectoral approach. This concept serves as the

legal scaffold for the numerous proposals of an 'Arctic Treaty'. On the other hand, there is

the (political) realism discourse, stressing the importance of taking into account geopolitical

and practical considerations to a well-reasoned analysis.

As to the latter, the author expressed the view that indeed, there is no sense in building

castles in Spain. In other words, there is no use in envisaging ambitious legal instruments

that, while theoretically appealing, are not politically and/or practically viable. Admittedly, a

comprehensive 'Arctic Treaty' might have the more merit from a legal-theoretical point of

view. However, we should realise we are not the happy inhabitants of VOLTAIRE's 'meilleur

des mondes possibles', where 'tout est pour le mieux'. Therefore, it should at all times be kept

in mind that the merits of a legal solution are i.a. dependent on its political and practical

feasibility.

On the basis of this insight, both discourses were weighed against each other in an attempt

to put the current debate into perspective. More particularly, the main features of the

proposals for an 'Arctic Treaty', based upon the concept of ecosystem-based management

and an integrated and cross-sectoral approach, were analysed from a pragmatic and realistic

point of view. Firstly, a comprehensive approach is theoretically certainly attractive,

considering the complex and intertwined nature of the challenges in the Arctic, as well as

their significant scale and rapid pace (cf. Part I). However, the political feasibility of a

comprehensive treaty seems doubtful in the short term. Moreover, obstacles of a more

practical nature are legion. Also, it seems far from certain that an understanding of the

Arctic's mere need for an integrated approach will suffice to overcome them. Secondly, a

legally binding approach is expected to offer considerable benefits compared to the current

soft-law approach. However, again the political likelihood seems minimal. This applies all

the more if an 'Arctic Treaty' were to be modelled entirely after the Antarctic Treaty System.

T

PART III - CONCLUSION

126

The obvious explanation for this is to be found in the significant differences between both

polar regions. Moreover, creating a legally binding agreement generates significant practical

hurdles which should be considered. Thirdly, as to the scale of participation of an 'Arctic

Treaty', politics will certainly influence the debate on the legitimate Arctic stakeholders.

Concerns of operational impact and dynamism might cast doubts on the feasibility of a

broad-scaled approach. Yet, by now it seems almost certainly impossible to put the genie

back in the bottle1330 and to exclude non-Arctic actors such as the EU.

Finally, these considerations, without precluding any options, led to the defence of the

golden mean. As to the 'choice' between mixed reform and an 'Arctic Treaty', walking the

middle course on the one hand implies the recognition of the value of and the need for

implementation and development of the existing structures. This seems preferable to a

random proliferation of new regulations. On the other hand, it recognises the added value of

and need for additional, new tailor-made and legally binding arrangements. Indeed, new

arrangements in addition to the existing regime will in all probability be needed, in function

of the pace of change in the Arctic. After all, hoping for a single ready-made solution to face

the challenges ahead, is perhaps somewhat too simplistic.

In terms of the ecosystem-based and political realism discourses, the golden mean implies

the understanding that in practice both concepts - while theoretically to a certain extent

incompatible with one another - will probably exert influence and shape the future of Arctic

ocean governance. As such, the importance of a pragmatic approach with an actual

operational impact, rather than an orderly but platonic process, has been stressed. After all,

it should not be forgotten that what is really needed, is an approach that, regardless of legal

discourses and the pleadings for an 'orderly' process, actually works in practice. Meanwhile,

the incorporation of principles pertaining to an ecosystem-based approach has been

considered as a valuable philosophy. This philosophy should be aimed for, to the extent that

both discourses can theoretically be reconciled. More particularly, if not (immediately)

through an integrated, cross-sectoral approach, these principles should be borne in mind

when introducing individual arrangements. Indeed, the former seems a more ambitious

approach. Also, this philosophy should only be pursued insofar as this doesn't come at the

expense of the regime's 'legal teeth'.

1330 YOUNG, 430.

GENERAL CONCLUSION

127

GENERAL CONCLUSION n Part I of this paper, the question was asked whether the prospects for future marine

activity in the Arctic region in general and in the NWP in particular, are sufficient to

consider the legal research question as formulated in the Introduction as relevant. The

prospects for commercial navigation in the NWP are far more modest than the often

exaggerated and provocative writings on this subject would make likely. However, this

conclusion does not mean that action must not be taken now. The rising trend respecting

navigation in high latitude waters will have considerable effects on the Arctic's legal regime.

In any case it irrefutably generates a need for a well-considered response in order to

channel the developments in the NWP and the Arctic in general towards a 'heavenly gate'

rather than a 'road to perdition'.

In Part II of this paper, an attempt was made to map the legal regime applicable to the NWP

in particular, as well as the Arctic in general. After all, it would be artificial to consider the

NWP as an isolated region. This analysis especially took the point of view of vessel-source

pollution and its impacts on the fragile Arctic marine environment.

A general overview was presented in Chapter 1, which opened with the basic yet crucial

assessment that the law of the sea fully applies to the Arctic. Indeed, the latter can

essentially be defined as an ocean. Arctic ocean governance is characterised by a complex,

three-layered framework. Firstly, the predominant international (global) component

revolves around the UNCLOS. The latter is supplemented by a wide array of mandatory and

non-mandatory international instruments, mainly established through the IMO. Secondly,

the regional level grants a pivotal role to the Arctic Council, which over the years has

revealed itself as an effective and influential network. However, structural flaws as well as

recent developments cast doubts on its 'best-before date'. Thirdly, the national level consists

of domestic laws and regulations pertaining to the Arctic states. It has been recognised as

the best way to implement the Arctic's legal framework. Among the Arctic states, Canada is

particularly relevant with respect to the NWP as the main coastal state. Moreover, this

nation has taken the lead with respect to the Arctic in general, by paving the way towards an

'Arctic Article' (art. 234 UNCLOS). Looking ahead to the last part of this paper, some

deficiencies were already brought to light.

Chapter 2 of Part II of this paper addressed the disputed legal qualification of the NWP in

order to obtain a more complete and detailed understanding of the rules applicable to the

NWP.

On the one hand, in first instance a closer look was taken to Canada's historic approach in

this debate. It was explained that Canada's historic internal waters claim is of no help. Also,

Canada's position based on the argument of historic consolidation of title seems nebulous.

Moreover, the potential of this approach to further Canada's case is dependent on the

legitimacy of its straight baselines claim. As to the latter, the author has taken the position

that the validity at international law of the Canadian straight baselines should be analysed

on the basis of the UNCLOS, both qua conventional law as qua customary law. This analysis

led to the conclusion that the validity of Canada's straight baselines cannot be upheld at

I

GENERAL CONCLUSION

128

international law. More importantly, it was stressed that even a valid straight baselines

claim would be incompatible with the Canadian claim of exclusive sovereignty over the

waters of the Canadian Archipelago.

On the other hand, the US position that the waters of the NWP constitute a strait used for

international navigation was refuted. This led to the acceptance of the 'middle ground

solution', meaning that the waters of the Canadian Archipelago constitute a combination of

territorial seas and EEZ, to which the respective regimes apply. Foreign vessels passing

through the NWP are therefore subject to a of suspendable right of innocent passage.

This result was nuanced in a double way in legal terms. Firstly, Canada still retains a broad

prescriptive and enforcement jurisdiction. Secondly, the possibility of a future

internationalisation of the Passage should certainly be considered. Moreover, Chapter 2

concluded with putting the legal debate itself into perspective. It was emphasised that the

strengths and weaknesses of Canada's litigational position have little bearing. After all, this

issue has been largely treated as a political problem in the past, and a negotiated solution

will continue to be attractive in the future. This led to the defence of a pragmatic,

cooperative approach.

Part III of this paper further built on the onset given in Part II, Chapter 1 by identifying a

number of significant deficiencies within the existing legal structures. In doing so, an

undisputed need for reform was revealed. It was assessed that domestic law alone cannot

serve as a remedy in this respect. Meanwhile, the international and regional components of

the current legal regime are in some instances ill-equipped to serve as the sole basis for

reform as well.

Considering the specific options for reform, a spectrum with on the one end a mixed reform

regime and on the other end the creation of an 'Arctic Treaty' was described. While this

polarised debate was nuanced, the antagonism between the underlying conceptual

frameworks of these options was recognised. These frameworks refer to the ecosystem-

based discourse, resp. the political realism discourse. With respect to the latter - and in

accordance with the nuances provided in Part II, Chapter 2 - the importance of taking

geopolitical and practical considerations to a well-reasoned analysis was stressed.

On the basis of this insight, both discourses were weighed against each other. On the one

hand, the legal-theoretical merits of an integrated, cross-sectoral and ecosystem-based

approach through the creation of a comprehensive, legally binding and either regionally- or

internally-scaled 'Arctic Treaty' were recognised. On the other hand however,

considerations of political and practical feasibility have highlighted the difference between

law in the books and law in action.

Finally, these considerations led to the defence of the golden mean, both in terms of the

options for reform and the underlying conceptual frameworks. Without precluding any

options, this insight was translated into the proposal of a pragmatic approach with an actual

operational impact. At the same time, such an approach also aims for the incorporation of

principles pertaining to an ecosystem-based approach, to the extent possible. It was

emphasised that the philosophy of ecosystem-based management through an integrated and

cross-sectoral approach should not come at the expense of the regime's 'legal teeth'. After

all, with compliance arguably being the single greatest challenge facing international law1331,

1331 YOUNG, 438.

GENERAL CONCLUSION

129

legal teeth are exactly what international law needs in order not be considered as powerless

in facing the challenges ahead.

REFERENCE LIST NOTES

130

REFERENCE LIST NOTES ACIA

HASSOL, S.J. (ed.), ACIA, Impacts of a Warming Arctic: Arctic Climate Impact Assessment,

Cambridge, Cambridge University Press, 2004, 140 p., available at:

http://www.acia.uaf.edu, last accessed April 22, 2013.

AMSA

Arctic Council, Arctic Marine Shipping Assessment 2009 Report, Norwegian

Chairmanship, Oslo, Norway, 187 p., available at: http://www.pame.is/amsa-2009-

report, last accessed April 15, 2013.

BORGERSON

BORGERSON, S.G., "Arctic Meltdown, The Economic and Security Implications of Global

Warming", Foreign Aff. 2008, 63-77.

BROSNAN et al.

BROSNAN, I.G., LESCHINE, T.M. and MILES, E.L., "Cooperation or Conflict in a Changing

Arctic?", Ocean Dev. & Int'l L. 2011, 173-210.

BROWNLIE

BROWNLIE, I., Principles of Public International Law, Oxford, Oxford University Press, 2008,

784 p.

BYERS and LALONDE

BYERS, M. and LALONDE, S. “Who Controls the Northwest Passage?”, Vand. J. Transnt’l L.

2009, 1133-1210.

CLARK

CLARK, L., "Canada's Oversight of Arctic Shipping: The Need for Reform", Tul. Mar. L. J.

2008-2009, 79-110.

Continental Shelf, Judgement

International Court of Justice (ICJ), Continental Shelf (Tunisia v. Libyan Arab Jamahiriya),

Merits, Judgement of February 24th, 1982, ICJ Reports 1982, 18.

Corfu Channel, Judgement

International Court of Justice (ICJ), Corfu Channel (United Kingdom v. Albania), Merits,

Judgement of April 9th, 1949, ICJ Reports 1949, 4.

CORTEN and KLEIN

CORTEN, O. and KLEIN, P. (eds.), The Vienna Conventions on the Law of Treaties, I, Oxford,

Oxford University Press, 2010, lxxxiv + 2071 p.

DE LA FAYETTE

DE LA FAYETTE, L.A., "Oceans Governance in the Arctic", Int'l J. Marine & Coastal L. 2008,

531-566.

DIAMOND

DIAMOND, H.J., "The Need for Ecosystem-Based Management of the Arctic" in NORDQUIST,

M.H., MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in the Arctic Environment and the Law of

the Sea, Boston, Martinus Nijhoff Publishers, 2010, 389-396.

EBINGER and ZAMBETAKIS

EBINGER, C.K. and ZAMBETAKIS, E., "The Geopolitics of Arctic Melt", International Affairs

2009, 1215-1232.


131

EU Commission, Summary Report

European Union, European Commission, Directorate-General for Maritime Affairs and

Fisheries, Legal Aspects of Arctic Shipping, Summary Report, 23 February 2010, Project

N° ZF0924-S03, 20 p., available at:

http://ec.europa.eu/maritimeaffairs/documentation/studies/index_en.htm,

last accessed April 22, 2013.

FARRENS

FARRENS, T.C., "Shrinking Ice, Growing Problems: Why We Must Act Now to Solve

Emerging Problems Posed by an Ice-Free Arctic", Transnat'l L. & Contemp. Probs. 2010-

2011, 655-679.

Fisheries case, Judgement

International Court of Justice (ICJ), Fisheries case (United Kingdom v. Norway), Merits,

Judgement of December 18th, 1951, ICJ Reports 1951, 116.

FRANCKX

FRANCKX, E., "Should the Law Governing Maritime Areas in the Arctic in the Arctic Adapt

to Changing Climatic Circumstances?", Cal. W. Int'l L. J. 2010-2011, 397-432.

GORDY

GORDY, K.C., "Dire Straits: The Necessity for Canadian Sovereignty in the Arctic

Waterways", Fordham Envtl. L. Rev. 2009-2010, 551-596.

Government of Canada, Statement

Government of Canada, Statement on Canada's Arctic Foreign Policy: The International

Dimension of Canada's Northern Strategy, 2010, available at:

http://www.geopoliticsnorth.org/index.php?option=com_content&view=category&layo

ut=blog&id=37&Itemid=105, last accessed April 15, 2013.

GRIFFITHS

GRIFFITHS, F., “The Shipping News: Canada’s Arctic Sovereignty Not on Thinning Ice”, Int’l

J. 2003, 257-282.

HAFTENDORN

HAFTENDORN, H., "Soft Solutions for Hard Problems", International Journal 2010, 809-824.

HARRISON

HARRISON, J., Making the Law of the Sea: A Study in the Development of International Law,

New York, Cambridge University Press, 2011, xvii + 316 p.

HERTELL

HERTELL, H.H., "Arctic Melt: The Tipping Point for an Arctic Treaty", Geo. Int'l Envtl. L. Rev.

2008-2009, 565-589.

HOEL

HOEL, A.H., "Do We Need a New Legal Regime for the Arctic Ocean?", Int'l J. Marine &

Coastal L. 2009, 443-456.

HOWSON

HOWSON, N.C., Note, “Breaking the Ice: The Canadian-American Dispute over the Arctic’s

Northwest Passage”, Colum. J. Transnat’l L. 1987-1988, 337-376.

HUEBERT (2009)

HUEBERT, R., "The Need for an Arctic Treaty: Growing from the United Nations

Convention on the Law of the Sea", Ocean Yearbook, vol. 23, 2009, 27-37.

HUEBERT (2010)


132

HUEBERT, R., "Cooperation or Conflict in the Arctic?" in NORDQUIST, M.H., MOORE, J.N. and

HEIDAR, T.H. (eds.), Changes in the Arctic Environment and the Law of the Sea, Boston,

Martinus Nijhoff Publishers, 2010, 27-59.

IPCC AR4

IPCC, 2007: Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II

and III to the Fourth Assessment Report of the Inter-governmental Panel on Climate

Change [Core Writing Team, PACHAURI, R.K and REISINGER, A. (eds.)]. IPCC, Geneva,

Switzerland, 30, available at:

http://www.ipcc.ch/publications_and_data/ar4/syr/en/contents.html, last accessed

April 22, 2013.

JARASHOW et al.

JARASHOW, M., RUNNELS, M.B. and SVENSON, T., Note, “UNCLOS and the Arctic: The Path of

Least Resistance”, Fordham Int'l L.J. 2006-2007, 1587-1652.

JENSEN

JENSEN, Ø., "Arctic Shipping Guidelines: towards a Legal Regime for Navigation Safety and

Environmental Protection?", Polar Record 2008, 107-114.

JENSEN and MOE

European Union, European Parliament, Directorate-General for External Policies of the

Union, Directorate B, Policy Department, Standard Briefing, Opening of New Arctic

Shipping Routes, JENSEN, Ø. and MOE, A., 31 August 2010, 16 p., available at:

http://www.europarl.europa.eu/activities/committees/studies.do?language=EN, last

accessed April 22, 2013.

JOYNER

JOYNER, C.C., "The Legal Regime for the Arctic Ocean", J. Transnat'l L. & Pol'y 2009, 195-

246.

KACZOROWSKA

KACZOROWSKA, A., Public International Law, Abingdon, Oxon (UK), Routledge, 2010, 877 p.

KENNAIR

KENNAIR, J., “An Inconsistent Truth: Canadian Foreign Policy and the Northwest Passage”,

Vt. L. Rev. 2009, 15-34.

KETTUNEN

KETTUNEN, P.A., "The Status of the Northwest Passage under International Law", Det. C. L.

Rev. 1990, 929-995.

KILLAS

KILLAS, M., “The Legality of Canada's Claims to the Waters of its Arctic Archipelago”,

Ottawa L. Rev. 1987, 95-136.

KOIVUROVA and MOLENAAR (2010)

WWF International Arctic Programme, International Governance and the Regulation of

the Marine Arctic, KOIVUROVA, T. and MOLENAAR, E., Oslo, 8 February, 2010, 112 p.,

available at: assets.panda.org/downloads/3in1_final.pdf, last accessed April 22, 2013.

KOIVUROVA and VANDERZWAAG (2007)

KOIVUROVA, T. and VANDERZWAAG, D.L., "The Arctic Council at 10 Years: Retrospect and

Prospects", U.B.C. L. Rev. 2007, 121-194.

KOIVUROVA, MOLENAAR and VANDERZWAAG (2009)


133

KOIVUROVA, T., MOLENAAR, E. J. and VANDERZWAAG, D.L., "Canada, the EU and Arctic Ocean

Governance: A Tangled and Shifting Seascape and Future Directions", J. Transnat'l L. &

Pol'y 2009, 247-288.

KRASKA (2007)

KRASKA, J., “The Law of the Sea Convention and the Northwest Passage”, Int’l J. Marine &

Coastal L. 2007, 257-281.

LALONDE (2004)

LALONDE, S., “Increased Traffic through Canadian Arctic Waters: Canada’s State of

Readiness”, R.J.T. 2004, 49-124.

LALONDE (2007)

LALONDE, S., "La Frontière Maritime dans l'Archipel Arctique: Un Garde-fou Essentiel pour

le Canada", Annuaire Français de Droit International, vol. 53, 2007, 609-639.

LENNON

LENNON, E., "A Tale of Two Poles", Sustainable Dev. L. & Pol'y 2007-2008, 32-37.

LÓPEZ MARTIN

Martin, A.G.L., International Straits. Concept, Classification and Rules of Passage, New

York, Springer, 2010, xxiii + 218 p.

MALLOY

MALLOY, B.A., "On Thin Ice: How a Binding Treaty Regime Can Save the Arctic", Hastings

W.-Nw. J. Envt'l L. & Pol'y 2010, 471-514.

McDorman (1986)

MCDORMAN, T.L., "In the Wake of the "Polar Sea": Canadian Jurisdiction and the Northwest

Passage", Les Cahiers de Droit 1986, 623-646.

MCDORMAN (2005)

MCDORMAN, T.L., "A Canadian Perspective on the Continued Non-Ratification of the

Convention on the Law of the Sea by the United States", Can. Y.B. Int'l L. 2005, 393-417.

MCDORMAN (2010)

MCDORMAN, T.L., "The Northwest Passage: International Law, Politics and Cooperation" in

NORDQUIST, M.H., MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in the Arctic Environment

and the Law of the Sea, Boston, Martinus Nijhoff Publishers, 2010, 227-250.

MENDEZ

MENDEZ, T., “Thin Ice, Shifting Geopolitics: The Legal Implications of Arctic Ice Melt”,

Denv. Int’l J. L. & Pol’y 2010, 527-547.

MILLER

MILLER, D.G.M., "The Southern Ocean: A Global View", Ocean Yearbook, vol. 14, 2000, 469-

513.

MOLENAAR (2008)

MOLENAAR, E.J., "Arctic Marine Shipping: Overview of the International Legal Framework,

Gaps, and Options", J. Transnat'l L. & Pol'y 2008-2009, 289-326.

MOORE

MOORE, J.N., "The UNCLOS Negotiations on Ice-Covered Areas", in NORDQUIST, M.H., MOORE,

J.N. and HEIDAR, T.H. (eds.), Changes in the Arctic Environment and the Law of the Sea,

Boston, Martinus Nijhoff Publishers, 2010, 17-26.

OFFERDAL

OFFERDAL, K., "The EU in the Arctic: In Pursuit of Legitimacy and Influence", Int'l J. 2010-

2011, 861-878.


134

OXMAN

OXMAN, B.H., "The Territorial Temptation: A Siren Song at Sea", Am. J. Int'l L. 2006, 830-

851.

PERRY

PERRY, M., “Rights of Passage: Canadian Sovereignty and International Law in the Arctic”,

U. Det. Mercy L. Rev. 1996-1997, 657-684.

PHARAND (1989)

PHARAND, D., “Canada's Sovereignty over the Northwest Passage”, Mich. J. Int'l L. 1989,

653-678.

PHARAND (2007)

PHARAND, D., "The Arctic Waters and the Northwest Passage: A Final Revisit", Ocean Dev.

& Int'l L. 2007, 3-69.

Qatar v. Bahrain, Judgement

International Court of Justice (ICJ), Maritime Delimitation and Territorial Questions

between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgement of March 16th, 2001,

ICJ Reports 2001, 40.

READ

READ, N., "Claiming the Strait: How U.S. Accession to the United Nations Law of the Sea

Convention will Impact the Dispute between Canada and the United States over the

Northwest Passage", Temp. Int'l & Comp. L. J. 2007, 413-444.

ROACH

ROACH, J.A., "International Law and the Arctic: A Guide to Understanding the Issues", Sw. J.

Int'l L. 2008-2009, 301-326.

ROSTON

ROSTON, M., Note, “The Northwest Passage’s Emergence as an International Highway”, Sw.

J. Int’l L. 2008-2009, 449-470.

ROTHWELL (1993)

ROTHWELL, D.R., “The Canadian-U.S. Northwest Passage Dispute: A Reassessment”, Cornell

Int’l L. J. 1993, 331-372.

ROTHWELL (2008)

ROTHWELL, D., "The Arctic in International Affairs: Time for a New Regime?", Brown J.

World Aff. 2008-2009, 241-253.

ROTHWELL (2012)

ROTHWELL, D.R., "Polar Oceans Governance in the 21st Century", Ocean Yearbook, vol. 26,

2012, 343-360.

ROTHWELL and STEPHENS

ROTHWELL, D.R. and STEPHENS, T., International Law of the Sea, Oxford, Hart Publishing,

2010, xlv + 499 p.

SCHOFIELD and POTTS, "Across the Top"

SCHOFIELD, C. and POTTS, T., "Across the Top of the World? Emerging Arctic Navigational

Opportunities and Arctic Governance", Carbon & Climate L. Rev. 2009, 472-482.

SCHOFIELD, POTTS and TOWNSEND-GAULT, "Boundaries"

SCHOFIELD, C., POTTS, T. and TOWNSEND-GAULT, I., "Boundaries, Biodiversity, Resources, and

Increasing Maritime Activities: Emerging Oceans Governance Challenges for Canada in

the Arctic Ocean", Vt. L. Rev. 2009-2010, 35-56.

SHAW


135

SHAW, M.N., International law, Cambridge, Cambridge University Press, 2008, clxvi +

1542 p.

SKOURTOS

SKOURTOS, N. ST., "Legal Effects for Parties and Nonparties: The Impact of the Law of the

Sea Convention" in NORDQUIST, M.H. et. al. (eds.), Entry into Force of the Law of the Sea

Convention, Den Haag, Nijhoff, 1995, 187-212.

SOMERS

SOMERS, E., Inleiding tot het Internationaal Zeerecht, Mechelen, Kluwer, 2010, xx + 491 p.

STOKKE (2007)

STOKKE, O.S., "A Legal Regime for the Arctic? Interplay with the Law of the Sea

Convention", Marine Policy 2007, 402-408.

TREVES

TREVES, T., "The Development of the Law of the Sea since the Adoption of the Un

Convention on the Law of the Sea: Achievements and Challenges for the Future" in VIDAS,

D. (ed.), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil

Pollution, Bioprospecting, Outer Continental Shelf, Leiden, Martinus Nijhoff, 2010, 41-58.

UNCLOS

United Nations Convention on the Law of the Sea of 10 December 1982, Montego Bay,

United Nations Treaty Series, vol. 1833, 3.

VILLIGER

VILLIGER, E.M., Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden,

Martinus Nijhoff Publishers, 2009, xviii + 1057 p.

WALKER and NOYES

WALKER, G.K. and NOYES, J.E., "Definitions for the 1982 Law of the Sea Convention - Part

II", Cal. W. Int'l L. J. 2002-2003, 191-324.

WATSON

WATSON, M., "An Arctic Treaty: A Solution to the International Dispute over the Polar

Region", Ocean & Coastal L. J. 2008-2009, 307-334.

WEBER and ROMANYSHYN

WEBER, S. and ROMANYSHYN, I., "Breaking the Ice: The European Union and the Arctic", Int'l

J. 2010-2011, 849-860

WEST

WEST, M.B., "Arctic Warming: Environmental, Human, and Security Implications", Vand. J.

Transnat'l L. 2009, 1081-1108.

WILLIAMS

WILLIAMS, G., Arctic Labyrinth, The Quest for the Northwest Passage, London, Penguin

Books, 2009, xix + 440 p.

WILSON et al.

WILSON, K.J., FALKINGHAM, J., MELLING, H. and DE ABREU, R., "Shipping in the Canadian Arctic:

Other Possible Climate Change Scenarios", International Geoscience and Remote Sensing

Symposium Proceedings (IGARSS) 2004, 1853-1856.

YOUNG

YOUNG, O.R., "The Arctic in Play: Governance in a Time of Rapid Change", Int'l J. Marine &

Coastal L. 2009, 423-442.

BIBLIOGRAPHY

136

BIBLIOGRAPHY 1. LEGISLATION SENSU LATO

1.1 INTERNATIONAL AND REGIONAL INSTRUMENTS

§ 1. AGREEMENTS, CONVENTIONS AND PROTOCOLS

International Convention for the Regulation of Whaling of 2 December 1946,

Washington, United Nations Treaty Series, vol. 161, 72.

Convention on the Territorial Sea and the Contiguous Zone of 29 April 1958, Geneva,


The Antarctic Treaty of 1 December 1959, Washington, United Nations Treaty Series, vol.

402, 71.

Vienna Convention on the Law of Treaties of 23 May 1969, Vienna, United Nations

Treaty Series, vol. 1155, 331.

International Convention on Civil Liability for Oil Pollution Damage of 29 November

1969, Brussels, United Nations Treaty Series, vol. 973, 3.

International Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage of 18 December 1971, Brussels, United Nations


Convention for the Conservation of Antarctic Seals of 1 June 1972, London, United

Nations Treaty Series, vol. 1080, 175.

Convention on the International Regulations for Preventing Collisions at Sea of 20

October 1972, London, United Nations Treaty Series, vol. 1050, 17.

Agreement On Conservation of Polar Bears of 15 November 1973, Oslo, International

Legal Materials, vol. 13, 13.

International Convention for the Safety of Life at Sea of 1 November 1974, London,


Protocol of 1978 relating to the International Convention for the Prevention of Pollution

from Ships, United Nations Treaty Series, vol. 1340, 61.

International Convention on Standards of Training, Certification and Watchkeeping for

Seafarers of 7 July 1978, London, United Nations Treaty Series, vol. 1361, 75.

Convention on the Conservation of Antarctic Marine Living Resources of 20 May 1980,

Canberra, United Nations Treaty Series, vol. 1329, 47.

United Nations Convention on the Law of the Sea of 10 December 1982, Montego Bay,


Agreement On Arctic Cooperation of 11 January 1988, U.S.-Can., International Legal

Materials, vol. 28, 142.

International Convention on Oil Pollution Preparedness, Response and Cooperation of

30 November 1990, London, United Nations Treaty Series, vol. 1891, 77.

Protocol of 1991 on Environmental Protection to the Antarctic Treaty, Madrid,

International Legal Materials, vol. 30, 1455.

United Nations Framework Convention on Climate Change of 9 May 1992, New York,


BIBLIOGRAPHY

137

Convention on Biological Diversity of 5 June 1992, Rio de Janeiro, United Nations Treaty

Series, vol. 1760, 79.

Convention for the Protection of the Marine Environment of the North-East Atlantic of

22 September 1992, Paris, United Nations Treaty Series, vol. 2354, 67.

Agreement relating to the Implementation of Part XI of the United Nations Convention

on the Law of the Sea of 10 December 1982 of 28 July 1994, New York, United Nations


Agreement for the Implementation of the Provisions of the United Nations Convention

on the Law of the Sea of 10 December 1982 relating to the Conservation and

Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 August

1995, New York, United Treaty Series, vol. 2167, 3.

International Convention on Liability and Compensation for Damage in Connection with

the Carriage of Hazardous and Noxious Substances by Sea of 3 May 1996, London,

International Legal Materials, vol. 35, 1406.

Protocol on Preparedness, Response and Cooperation to Pollution Incidents by

Hazardous and Noxious Substances of 15 March 2000, London, IMO Doc. HNS-

OPRC/CONF/11/Rev.1.

International Convention for Civil Liability for Bunker Oil Pollution Damage of 23 March

2001, London, IMO Doc. LEG/CONF.12/19.

International Convention on the Control of Harmful Anti-Fouling Systems on Ships of 5

October 2001, London, IMO Doc. AFS/CONF/26.

International Convention for the Control and Management of Ships' Ballast Water and

Sediments of 13 February 2004, London, IMO Doc. BWM/CONF/36.

§ 2. IMO GUIDELINES AND OTHER INSTRUMENTS

IMO, Assembly, General Provisions on Ships' Routeing, IMO A.572(14) (November 20,

1985.

IMO, Assembly, Guidelines for the Designation of Special Areas under MARPOL 73/78 and

Guidelines for the Identification and Designation of Particularly Sensitive Areas, IMO

A.927(22) (November 29, 2001).

IMO, Maritime Safety Committee and Marine Environmental Protection Committee,

Guidelines for Ships Operating in Arctic Ice-Covered Waters, IMO MSC/Circ. 1056,

MEPC/Circ. 399 (December 23, 2002).

IMO, Marine Environmental Protection Committee, Guidelines for Ballast Water

Exchange in the Antarctic Treaty Area, IMO Doc. MEPC.163(56) (July 13, 2007).

International Association of Classification Societies (IACS), Requirements for Polar Class,

2007, available at:

http://www.iacs.org.uk/publications/publications.aspx?pageid=4&sectionid=3, last


IMO, Assembly, Guidelines for Ships Operating in Polar Waters, IMO A.1024(26)

(December 2, 2009).

1.2 DOMESTIC (CANADIAN) LEGISLATION

Territorial Sea and Fishing Zones Act, S.C. 1964-65, c. 22.

Act to Amend the Territorial Sea and Fishing Zones Act, S.C.1969-1970, c. 68, s. 1243.

BIBLIOGRAPHY

138

Arctic Waters Pollution Prevention Act, R.S.C. 1970 (1st Supp.), c. 2, amended S.C. 1977-

78, c. 41. For the current consolidated version, see Arctic Waters Pollution Prevention

Act, R.S.C., 1985, c. A-12, available at: laws-lois.justice.gc.ca/eng/acts/A-12/, last


Canada Shipping Act, R.S.C., 1985, c. S-9, available at: http://laws-

lois.justice.gc.ca/eng/acts/S-9/index.html, last accessed April 22, 2013.

Oceans Act, S.C. 1996, c. 31, available at: http://laws-lois.justice.gc.ca/eng/acts/O-

2.4/index.html, last accessed April 22, 2013.

Canada Shipping Act, S.C. 2001, c. 26, available at: http://laws-

lois.justice.gc.ca/eng/acts/C-10.15/index.html, last accessed April 22, 2013.

2. CASE LAW

2.1 PERMANENT COURT OF ARBITRATION (PCA)

Permanent Court of Arbitration (PCA), The Grisbådarna Case (Norway v. Sweden),

Arbitral Award of October 23d, 1909, Hague C. Rep. 1916, 121.

Permanent Court of Arbitration (PCA), The Island of Palmas Case (or Miangas) (United

States of America v. The Netherlands), Arbitral Award of April 4th, 1928, Reports of

International Arbitral Awards (R.I.A.A.), vol. XI, 831-871.

2.2 PERMANENT COURT OF INTERNATIONAL JUSTICE (PCIJ)

Permanent Court of International Justice (PCIJ), Legal Status of Eastern Greenland

(Norway v. Denmark), PCIJ Series A/B, n°53, 1933, 22.

2.3 INTERNATIONAL COURT OF JUSTICE (ICJ)

International Court of Justice (ICJ), Corfu Channel (United Kingdom v. Albania), Merits,

Judgement of April 9th, 1949, ICJ Reports 1949, 4.

International Court of Justice (ICJ), Fisheries case (United Kingdom v. Norway), Merits,

Judgement of December 18th, 1951, ICJ Reports 1951, 116.

International Court of Justice (ICJ), Continental Shelf (Tunisia v. Libyan Arab Jamahiriya),

Merits, Judgement of February 24th, 1982, ICJ Reports 1982, 18.

International Court of Justice (ICJ), Delimitation of the Maritime Boundary in the Gulf of

Maine Area (Canada v. United States of America), Merits, Judgement of October 12th,

1984, ICJ Reports 1984, 246.

International Court of Justice (ICJ), Military and Paramilitary Activities in and against

Nicaragua (Nicaragua v. United States of America), Merits, Judgement of June 27th, 1986,


International Court of Justice (ICJ), Land, Island and Maritime Frontier case (El Salvador

v. Honduras: Nicaragua Intervening), Merits, Judgement of September 11th, 1992, ICJ

Reports 1992, 351.

International Court of Justice (ICJ), Maritime Delimitation and Territorial Questions

between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgement of March 16th, 2001,


BIBLIOGRAPHY

139

3. DOCTRINE

3.1 BOOKS

§ 1. WORKS ON INTERNATIONAL LAW

BROWNLIE, I., Principles of Public International Law, Oxford, Oxford University Press, 2008,

784 p.

CORTEN, O. and KLEIN, P. (eds.), The Vienna Conventions on the Law of Treaties, I, Oxford,

Oxford University Press, 2010, lxxxiv + 2071 p.

KACZOROWSKA, A., Public International Law, Abingdon, Oxon (UK), Routledge, 2010, 877 p.

SHAW, M.N., International law, Cambridge, Cambridge University Press, 2008, clxvi +

1542 p.

VILLIGER, E.M., Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden,

Martinus Nijhoff Publishers, 2009, xviii + 1057 p.

§ 2. WORKS ON THE LAW OF THE SEA

HARRISON, J., Making the Law of the Sea: A Study in the Development of International Law,

New York, Cambridge University Press, 2011, xvii + 316 p.

Martin, A.G.L., International Straits. Concept, Classification and Rules of Passage, New

York, Springer, 2010, xxiii + 218 p.

ROTHWELL, D.R. and STEPHENS, T., International Law of the Sea, Oxford, Hart Publishing,

2010, xlv + 499 p.

SOHN, L.B. and NOYES, J.E., Cases and materials on the law of the sea, Ardsley, New York,

Transnational Publishers, 2004, xxi + 874 p.

SOMERS, E., Inleiding tot het Internationaal Zeerecht, Mechelen, Kluwer, 2010, xx + 491 p.

§ 3. NON-LEGAL WORKS

WILLIAMS, G., Arctic Labyrinth, The Quest for the Northwest Passage, London, Penguin

Books, 2009, xix + 440 p.

3.2 COMPILATIONS

In MARTINEZ GUTIERREZ, N.A. (ed.), Serving the Rule of International Maritime Law: Essays in

Honour of Professor David Joseph Attard, New York, Routledge, 2010, lxiv + 404 p.:

MITROPOULOS, E.E., "IMO: 60 Years in the Service of Shipping" in MARTINEZ GUTIERREZ, N.A.

(ed.), Serving the Rule of International Maritime Law: Essays in Honour of Professor David

Joseph Attard, New York, Routledge, 2010, lxiv + 404 p.

In NORDQUIST, M.H. et. al. (eds.), Entry into Force of the Law of the Sea Convention, Den

Haag, Nijhoff, 1995, xxi + 398 p.:

WOLFRUM, R., "The Legal order for the Seas and Oceans" in NORDQUIST, M.H. et. al.

(eds.), Entry into Force of the Law of the Sea Convention, Den Haag, Nijhoff, 1995,

161-185.

SKOURTOS, N. ST., "Legal Effects for Parties and Nonparties: The Impact of the Law

of the Sea Convention" in NORDQUIST, M.H. et. al. (eds.), Entry into Force of the Law

of the Sea Convention, Den Haag, Nijhoff, 1995, 187-212.

BIBLIOGRAPHY

140

In NORDQUIST, M.H., KOH, T.T.B. and MOORE, J.N. (eds.), Freedom of seas, passage rights, and

the 1982 Law of the Sea Convention, Boston, Martinus Nijhoff Publishers, 2009, xxii + 623

p.:

KRASKA, J., "Particularly Sensitive Areas and the Law of the Sea" in NORDQUIST, M.H.,

KOH, T.T.B. and MOORE, J.N. (eds.), Freedom of seas, passage rights, and the 1982

Law of the Sea Convention, Boston, Martinus Nijhoff Publishers, 2009, 511-571.

In NORDQUIST, M.H., MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in the Arctic Environment

and the Law of the Sea, Boston, Martinus Nijhoff Publishers, 2010, xxx + 594 p.:

BRIGHAM, L.W., "The Arctic Council's Arctic Marine Shipping Assessment" in

NORDQUIST, M.H., MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in the Arctic

Environment and the Law of the Sea, Boston, Martinus Nijhoff Publishers, 2010,

159-175.

DIAMOND, H.J., "The Need for Ecosystem-Based Management of the Arctic" in

NORDQUIST, M.H., MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in the Arctic

Environment and the Law of the Sea, Boston, Martinus Nijhoff Publishers, 2010,

389-396.

HUEBERT, R., "Cooperation or Conflict in the Arctic?" in NORDQUIST, M.H., MOORE, J.N.

and HEIDAR, T.H. (eds.), Changes in the Arctic Environment and the Law of the Sea,

Boston, Martinus Nijhoff Publishers, 2010, 27-59.

JEFFERS, J., "Ensuring the Protection of Arctic Marine Biodiversity in the Face of

Climate Change" in NORDQUIST, M.H., MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in

the Arctic Environment and the Law of the Sea, Boston, Martinus Nijhoff

Publishers, 2010, 323-363.

MCDORMAN, T.L., "The Northwest Passage: International Law, Politics and

Cooperation" in NORDQUIST, M.H., MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in the

Arctic Environment and the Law of the Sea, Boston, Martinus Nijhoff Publishers,

2010, 227-250.

MOORE, J.N., "The UNCLOS Negotiations on Ice-Covered Areas", in NORDQUIST, M.H.,

MOORE, J.N. and HEIDAR, T.H. (eds.), Changes in the Arctic Environment and the Law

of the Sea, Boston, Martinus Nijhoff Publishers, 2010, 17-26.

In VIDAS, D. (ed.), Law, Technology and Science for Oceans in Globalisation: IUU Fishing,

Oil Pollution, Bioprospecting, Outer Continental Shelf, Leiden, Martinus Nijhoff, 2010,

xxxiii + 608 p.:

TREVES, T., "The Development of the Law of the Sea since the Adoption of the Un

Convention on the Law of the Sea: Achievements and Challenges for the Future" in

VIDAS, D. (ed.), Law, Technology and Science for Oceans in Globalisation: IUU Fishing,

Oil Pollution, Bioprospecting, Outer Continental Shelf, Leiden, Martinus Nijhoff, 2010,

41-58.

3.3 JOURNALS

BORGERSON, S.G., "Arctic Meltdown, The Economic and Security Implications of Global

Warming", Foreign Aff. 2008, 63-77.

BROSNAN, I.G., LESCHINE, T.M. and MILES, E.L., "Cooperation or Conflict in a Changing

Arctic?", Ocean Dev. & Int'l L. 2011, 173-210.

BYERS, M. and LALONDE, S. “Who Controls the Northwest Passage?”, Vand. J. Transnt’l L.

2009, 1133-1210.

BIBLIOGRAPHY

141

CLARK, L., "Canada's Oversight of Arctic Shipping: The Need for Reform", Tul. Mar. L. J.

2008-2009, 79-110.

DE LA FAYETTE, L.A., "Oceans Governance in the Arctic", Int'l J. Marine & Coastal L.

2008, 531-566.

EBINGER, C.K. and ZAMBETAKIS, E., "The Geopolitics of Arctic Melt", International Affairs

2009, 1215-1232.

FARRENS, T.C., "Shrinking Ice, Growing Problems: Why We Must Act Now to Solve

Emerging Problems Posed by an Ice-Free Arctic", Transnat'l L. & Contemp. Probs.

2010-2011, 655-679.

FRANCKX, E., "Should the Law Governing Maritime Areas in the Arctic in the Arctic

Adapt to Changing Climatic Circumstances?", Cal. W. Int'l L. J. 2010-2011, 397-432.

FRENCH, D. and SCOTT, K., "International Legal Implications of Climate Change for the

Polar Regions: Too Much, Too Little, Too Late?", Melb. J. Int'l L. 2009, 631-654.

GORDY, K.C., "Dire Straits: The Necessity for Canadian Sovereignty in the Arctic

Waterways", Fordham Envtl. L. Rev. 2009-2010, 551-596.

GRIFFITHS, F., “The Shipping News: Canada’s Arctic Sovereignty Not on Thinning Ice”,

Int’l J. 2003, 257-282.

HAFTENDORN, H., "Soft Solutions for Hard Problems", International Journal 2010, 809-

824.

HERTELL, H.H., "Arctic Melt: The Tipping Point for an Arctic Treaty", Geo. Int'l Envtl. L.

Rev. 2008-2009, 565-589.

HOEL, A.H., "Do We Need a New Legal Regime for the Arctic Ocean?", Int'l J. Marine &

Coastal L. 2009, 443-456.

HOLMES, S., “Breaking the Ice: Emerging Legal Issues in Arctic Sovereignty”, Chi. J. Int’l

L. 2008-2009, 323-352.

HOWSON, N.C., Note, “Breaking the Ice: The Canadian-American Dispute over the

Arctic’s Northwest Passage”, Colum. J. Transnat’l L. 1987-1988, 337-376.

HUEBERT, R., "The Need for an Arctic Treaty: Growing from the United Nations

Convention on the Law of the Sea", Ocean Yearbook, vol. 23, 2009, 27-37.

JARASHOW, M., RUNNELS, M.B. and SVENSON, T., Note, “UNCLOS and the Arctic: The Path

of Least Resistance”, Fordham Int'l L.J. 2006-2007, 1587-1652.

JENSEN, Ø., "Arctic Shipping Guidelines: towards a Legal Regime for Navigation Safety

and Environmental Protection?", Polar Record 2008, 107-114.

JOYNER, C.C., "The Legal Regime for the Arctic Ocean", J. Transnat'l L. & Pol'y 2009,

195-246.

KAILIS, A., "Towards the Adoption of an Integrated Approach to the Governance of the

Arctic Ocean: The European Perspective", Ocean Yearbook, vol. 24, 2010, 445-473.

KENNAIR, J., “An Inconsistent Truth: Canadian Foreign Policy and the Northwest

Passage”, Vt. L. Rev. 2009, 15-34.

KETTUNEN, P.A., "The Status of the Northwest Passage under International Law", Det.

C. L. Rev. 1990, 929-995.

KILLAS, M., “The Legality of Canada's Claims to the Waters of its Arctic Archipelago”,

Ottawa L. Rev. 1987, 95-136.

KOIVUROVA, T. and VANDERZWAAG, D.L., "The Arctic Council at 10 Years: Retrospect and

Prospects", U.B.C. L. Rev. 2007, 121-194.

BIBLIOGRAPHY

142

KOIVUROVA, T., MOLENAAR, E. J. and VANDERZWAAG, D.L., "Canada, the EU and Arctic Ocean

Governance: A Tangled and Shifting Seascape and Future Directions", J. Transnat'l L.

& Pol'y 2009, 247-288.

KOLCZ-RYAN, M., "An Arctic Race: How the United States' Failure to Ratify the Law of

the Sea Convention Could Adversely Affect its Interests in the Arctic", U. Dayton L.

Rev. 2009-2010, 149-174.

KRASKA, J., "International Security and International Law in the Northwest Passage",

Vand. J. Transnat'l L. 2009, 1109-1132.

KRASKA, J., “The Law of the Sea Convention and the Northwest Passage”, Int’l J. Marine

& Coastal L. 2007, 257-281.

LALONDE, S. and RONALD, ST. J., "Donat Pharand: The Arctic Scholar", Can. Y.B. Int'l L., vol.

44, 2006, 3-94.

LALONDE, S., "La Frontière Maritime dans l'Archipel Arctique: Un Garde-fou Essentiel

pour le Canada", Annuaire Français de Droit International, vol. 53, 2007, 609-639.

LALONDE, S., “Increased Traffic through Canadian Arctic Waters: Canada’s State of

Readiness”, R.J.T. 2004, 49-124.

LARKIN, J.E.D., "UNCLOS and the Balance of Environmental and Economic Resources

in the Arctic", Geo. Int'l Envtl. L. Rev. 2009-2010, 307-336.

LENNON, E., "A Tale of Two Poles", Sustainable Dev. L. & Pol'y 2007-2008, 32-37.

MALIK, J.M., "United States Environmental Law Applied in the Arctic Ocean:

Frustrating the Balance of the Law of the Sea, National Sovereignty, and International

Collaboration Efforts", Naval L. Rev. 2010, 41-92.

MALLOY, B.A., "On Thin Ice: How a Binding Treaty Regime Can Save the Arctic",

Hastings W.-Nw. J. Envt'l L. & Pol'y 2010, 471-514.

MCDORMAN, T.L., "A Canadian Perspective on the Continued Non-Ratification of the

Convention on the Law of the Sea by the United States", Can. Y.B. Int'l L. 2005, 393-417.

MCDORMAN, T.L., "In the Wake of the "Polar Sea": Canadian Jurisdiction and the

Northwest Passage", Les Cahiers de Droit 1986, 623-646.

MCRAE, D.M., "Arctic Waters and Canadian Sovereignty", Int'l J. 1983, 476-492.

MENDEZ, T., “Thin Ice, Shifting Geopolitics: The Legal Implications of Arctic Ice Melt”,

Denv. Int’l J. L. & Pol’y 2010, 527-547.

MILLER, D.G.M., "The Southern Ocean: A Global View", Ocean Yearbook, vol. 14, 2000, 469-

513.

MOLENAAR, E.J., "Arctic Marine Shipping: Overview of the International Legal

Framework, Gaps, and Options", J. Transnat'l L. & Pol'y 2008-2009, 289-326.

OFFERDAL, K., "The EU in the Arctic: In Pursuit of Legitimacy and Influence", Int'l J.

2010-2011, 861-878.

OXMAN, B.H., "The Territorial Temptation: A Siren Song at Sea", Am. J. Int'l L. 2006,

830-851.

PERRY, M., “Rights of Passage: Canadian Sovereignty and International Law in the

Arctic”, U. Det. Mercy L. Rev. 1996-1997, 657-684.

PHARAND, D., "The Arctic Waters and the Northwest Passage: A Final Revisit", Ocean

Dev. & Int'l L. 2007, 3-69.

PHARAND, D., “Canada's Sovereignty over the Northwest Passage”, Mich. J. Int'l L. 1989,

653-678.

BIBLIOGRAPHY

143

READ, N., "Claiming the Strait: How U.S. Accession to the United Nations Law of the

Sea Convention will Impact the Dispute between Canada and the United States over

the Northwest Passage", Temp. Int'l & Comp. L. J. 2007, 413-444.

ROACH, J.A., "International Law and the Arctic: A Guide to Understanding the Issues",

Sw. J. Int'l L. 2008-2009, 301-326.

ROSTON, M., Note, “The Northwest Passage’s Emergence as an International Highway”,

Sw. J. Int’l L. 2008-2009, 449-470.

ROTHWELL, D., "The Arctic in International Affairs: Time for a New Regime?", Brown J.

World Aff. 2008-2009, 241-253.

ROTHWELL, D.R., "Polar Oceans Governance in the 21st Century", Ocean Yearbook, vol.

26, 2012, 343-360.

ROTHWELL, D.R., “The Canadian-U.S. Northwest Passage Dispute: A Reassessment”,

Cornell Int’l L. J. 1993, 331-372.

SCHOFIELD, C. and POTTS, T., "Across the Top of the World? Emerging Arctic

Navigational Opportunities and Arctic Governance", Carbon & Climate L. Rev. 2009,

472-482.

SCHOFIELD, C., POTTS, T. and TOWNSEND-GAULT, I., "Boundaries, Biodiversity, Resources,

and Increasing Maritime Activities: Emerging Oceans Governance Challenges for

Canada in the Arctic Ocean", Vt. L. Rev. 2009-2010, 35-56.

STOKKE, O.S., "A Legal Regime for the Arctic? Interplay with the Law of the Sea

Convention", Marine Policy 2007, 402-408.

STOKKE, O.S., "Environmental Security in the Arctic: The Case for Multilevel

Governance", Int'l J. 2010-2011, 835-848.

VAN DYKE, J.M., "U.S. Accession to the Law of the Sea Convention", Ocean Yearbook, vol.

22, 2008, 47-59.

WALKER, G.K. and NOYES, J.E., "Definitions for the 1982 Law of the Sea Convention -

Part II", Cal. W. Int'l L. J. 2002-2003, 191-324.

WATSON, M., "An Arctic Treaty: A Solution to the International Dispute over the Polar

Region", Ocean & Coastal L. J. 2008-2009, 307-334.

WEBER, S. and ROMANYSHYN, I., "Breaking the Ice: The European Union and the Arctic",

Int'l J. 2010-2011, 849-860.

WEST, M.B., "Arctic Warming: Environmental, Human, and Security Implications",

Vand. J. Transnat'l L. 2009, 1081-1108.

WILSON, K.J., FALKINGHAM, J., MELLING, H. and DE ABREU, R., "Shipping in the Canadian

Arctic: Other Possible Climate Change Scenarios", International Geoscience and

Remote Sensing Symposium Proceedings (IGARSS) 2004, 1853-1856.

YOUNG, O.R., "The Arctic in Play: Governance in a Time of Rapid Change", Int'l J. Marine

& Coastal L. 2009, 423-442.

4. VARIOUS REPORTS, STUDIES, STATEMENTS, RESOLUTIONS AND

DECLARATIONS

Arctic Council, Arctic Marine Shipping Assessment 2009 Report, Norwegian

Chairmanship, Oslo, Norway, 187 p., available at: http://www.pame.is/amsa-2009-

report, last accessed April 15, 2013.

BIBLIOGRAPHY

144

Arctic Ocean Conference, Ilulissat Declaration of 28 May 2008, Ilulissat, Greenland,

available at the website of the Canadian Ministry for Foreign Affairs and

International Trade: http://www.international.gc.ca/polar-polaire/northstrat-

ilulissat-stratnord.aspx?lang=eng&view=d, last accessed April 21, 2013.

European Union, European Commission, Directorate-General for Maritime Affairs

and Fisheries, Legal Aspects of Arctic Shipping, Summary Report, 23 February 2010,

Project N° ZF0924-S03, 20 p., available at:

http://ec.europa.eu/maritimeaffairs/documentation/studies/index_en.htm,


European Union, European Parliament, Directorate-General for External Policies of

the Union, Directorate B, Policy Department, Standard Briefing, Opening of New Arctic

Shipping Routes, JENSEN, Ø. and MOE, A., 31 August 2010, 16 p., available at:

http://www.europarl.europa.eu/activities/committees/studies.do?language=EN,


European Union, European Parliament, European Parliament Resolution on a

Sustainable EU Policy for the High North, 20 January 2011, P7_TA(2011)0024,

available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-

//EP//TEXT+TA+P7-TA-2011-0024+0+DOC+XML+V0//EN, last accessed April 22,

2013.

Government of Canada, Statement on Canada's Arctic Foreign Policy: The

International Dimension of Canada's Northern Strategy, 2010, available at:

http://www.geopoliticsnorth.org/index.php?option=com_content&view=category&l

ayout=blog&id=37&Itemid=105, last accessed April 15, 2013.

HASSOL, S.J. (ed.), ACIA, Impacts of a Warming Arctic: Arctic Climate Impact Assessment,

Cambridge, Cambridge University Press, 2004, 140 p., available at:

http://www.acia.uaf.edu, last accessed April 22, 2013.

"Historic Bays", Memorandum by the Secretariat of the United Nations, U.N. Doc.

A/CONF.13/1, United Nations Conference on the Law of the Sea: Official Records, vol.

1, 1958, 1-38, available at:

http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-

1958/PreparatoryDocs_vol_I_e.html, last accessed April 15, 2013.

IPCC, 2007: Climate Change 2007: Synthesis Report. Contribution of Working Groups

I, II and III to the Fourth Assessment Report of the Inter-governmental Panel on

Climate Change [Core Writing Team, PACHAURI, R.K and REISINGER, A. (eds.)]. IPCC,

Geneva, Switzerland, 30, available at:

http://www.ipcc.ch/publications_and_data/ar4/syr/en/contents.html, last accessed

April 22, 2013.

“Juridical Regime of Historic Waters, Including Historic Bays”, Study prepared by the

UN Secretariat, U.N. Doc. Doc. A/CN.4/143, 9 March 1962, reprinted in Yearbook of

the International Law Commission, Vol. II, 1962, 1-26, available at:

http://untreaty.un.org/ilc/sessions/14/14docs.htm, last accessed April 15, 2013.

Limits in the Seas, No. 112, United States Responses to Excessive National Maritime

Claims, United States Department of State, Office of Ocean Affairs, Bureau of Oceans

and International Environmental and Scientific Affairs, 9 March 1992, 88 p., available

at: http://www.state.gov/e/oes/ocns/opa/c16065.htm, last accessed April 15, 2013.

BIBLIOGRAPHY

145

UN General Assembly, Oceans and the Law of the Sea: Report of the Secretary-General,

10 March, 2008, A/63/63, 102 p., available at:

http://www.unhcr.org/refworld/docid/48da24e72.html, last accessed April 22,

2013.

WWF International Arctic Programme, International Governance and the Regulation

of the Marine Arctic, KOIVUROVA, T. and MOLENAAR, E., Oslo, 8 February, 2010, 112 p.,

available at: assets.panda.org/downloads/3in1_final.pdf, last accessed April 22,

2013.

5. ONLINE REFERENCES

5.1 ARCTIC COUNCIL

In general:

http://www.arctic-council.org/index.php/en/, last accessed April 22, 2013.

Concerning the PAME (Protection of the Arctic Environment) working group:

In general:

http://www.pame.is/, last accessed April 22, 2013.

Concerning the AMSA:

http://www.pame.is/index.php/amsa-home/amsa-2009-report, last accessed

April 22, 2013.

Concerning TROOPS:

http://www.pame.is/images/stories/PDF_Files/Doc_lib/OilandGasReports/TRO

OP%20-%20English%202.pdf, last accessed April 14, 2013.

Concerning the EPPR (Emergency Prevention, Preparedness and Response) working

group:

In general:

http://www.arctic-council.org/eppr/, last accessed April 22, 2013.

Concerning the Circumpolar Map of Resources at Risk from Oil Spills in the

Arctic:

http://eppr.akvaplan.com/intro/intro.htm, last accessed April 14, 2013.

Concerning the Field Guide for Oil Spill Response in Arctic Waters:

http://www.arctic-council.org/eppr/completed-work/oil-and-gas-

products/field-guide-for-oil-spill-response/, last accessed April 14, 2013.

Concerning the Environmental Risk Analysis of Arctic Activities:

http://www.arctic-council.org/eppr/environmental-risk-analysis-of-arctic-

activities/, last accessed April 14, 2013.

Concerning the Shoreline Clean-Up Assessment Technique (SCAT) Manual:

http://www.arctic-council.org/eppr/completed-work/oil-and-gas-

products/arctic-shoreline-clean-up-assessment-technique-scat-manual/, last


5.2 CANADIAN GOVERNMENT

Website of Justice Laws:

http://laws-lois.justice.gc.ca/eng/acts/A-12/index.html, last accessed April 22,

2013.

Website of the Ministry of Environment:

BIBLIOGRAPHY

146

In general:

https://www.ec.gc.ca/default.asp?lang=En&n=FD9B0E51-1, last accessed April

21, 2013.

Concerning polar issues:

https://www.ec.gc.ca/international/default.asp?lang=En&n=B6954981-1, last


Website of the Ministry of Foreign Affairs and International Trade:

In general:

http://www.international.gc.ca/international/index.aspx?lang=eng, last


Concerning the Ilulissat Declaration:

http://www.international.gc.ca/polar-polaire/northstrat-ilulissat-

stratnord.aspx?lang=eng&view=d, last accessed April 21, 2013.

Website of the Ministry of Transport:

In general:

http://www.tc.gc.ca/eng/menu.htm, last accessed April 21, 2013.

Concerning NORDREG as a mandatory instrument:

http://www.tc.gc.ca/eng/mediaroom/releases-2010-h078e-6019.htm, last


Website of the Government of the Northwest Territories, Department of

Environmental and Natural Resources:

http://www.enr.gov.nt.ca/_live/pages/wpPages/soe_human_activities.aspx, last


5.3 IMO (INTERNATIONAL MARITIME ORGANISATION)

In general:

http://www.imo.org/Pages/home.aspx, last accessed April 22, 2013.

Concerning the mandate of the IMO:

http://www.imo.org/ourwork/technicalcooperation/itcp/Pages/Default.aspx, last


Concerning Ships' Routeing:

http://www.imo.org/ourwork/safety/navigation/pages/shipsrouteing.aspx, last


5.4 INTERNATIONAL COURTS

Website of the International Court of Arbitration:

www.pca-cpa.org/, last accessed April 22, 2013.

Website of the International Court of Justice:

www.icj-cij.org/, last accessed April 22, 2013.

5.5 OTHER

Website of the Antarctic Treaty:

In general:

http://www.ats.aq/e/ats.htm, last accessed April 22, 2013.

Concerning the Secretariat of the Antarctic Treaty:

BIBLIOGRAPHY

147

http://www.ats.aq/e/ep.htm, last accessed April 22, 2013.

Website of the Arctic Climate Impact Assessment (ACIA):

http://www.acia.uaf.edu/, last accessed April 22, 2013.

Website of the Arctic Transform Project:

http://arctic-transform.org/, last accessed April 22, 2013.

Website of the European Union, European Commission, Directorate-General for

Maritime Affairs and Fisheries:

In general:

http://ec.europa.eu/maritimeaffairs/index_en.htm, last accessed April 22, 2013.

Concerning the executive summary on Legal Aspects of Arctic Shipping:

http://bookshop.europa.eu/en/legal-aspects-of-arctic-shipping-pbKL1030367/,


Website of the Inter-governmental Panel on Climate Change (IPCC):

In general:

http://www.ipcc.ch/, last accessed April 22, 2013.

Concerning IPCC AR4:

http://www.ipcc.ch/publications_and_data/ar4/syr/en/contents.html, last


Website of the International Association of Classification Societies:

In general:

http://www.iacs.org.uk/.

Concerning the Unified Requirements:

http://www.iacs.org.uk/publications/publications.aspx?pageid=4&sectionid=3,


Website of the NASA (National Aeronautics and Space Administration):

In general:

http://www.nasa.gov/, last accessed April 22, 2013.

Concerning global climate change (vital signs of the Planet):

http://climate.nasa.gov/evidence/, last accessed April 22, 2013.

Website of the NSIDC (National Snow and Ice Data Center):

In general:

http://nsidc.org/, last accessed April 15, 2013.

Concerning the cryosphere:

http://nsidc.org/cryosphere/sotc/sea_ice.html, April 15, 2013.

Concerning frequently asked questions:

http://nsidc.org/arcticseaicenews/faq/#1979average, April 15, 2013.

Website of the OSPAR Convention:

http://www.ospar.org/, last accessed April 15, 2013.

Website of the United Nations, Division for Ocean Affairs and the Law of the Sea:

In general:

http://www.un.org/Depts/los/index.htm, last accessed April 22, 2013.

Concerning the status of the UNCLOS:

http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratification

s.htm#The%20United%20Nations%20Convention%20on%20the%20Law%20of

%20the%20Sea, last accessed April 22, 2013.

the northwest passage in turbulent times heavenly …

Documents