Arctic Sovereignty: Loss by Dereliction?

by Donald M. McRae


"Sovereignty" in the Arctic

"Arctic sovereignty" is a symbol of Canadian identity. The "North" is integral to Canada and to how Canadians perceive themselves. Canadian sovereignty over the lands and waters of the Canadian Arctic Archipelago(1) is of the essence of Canada as a nation. The defence of Arctic sovereignty is therefore crucial to Canada' s defence policy.

The term "sovereignty" evokes many images and, while the claim to Arctic sovereignty partakes of many of those images, there is at the core a question of law and a question of fact. Is it possible for a state to claim sovereignty over such an area, and has Canada in fact established such a claim? In the context of this submission, there is a third question: If Canada has established its sovereignty over the land and waters of the Canadian Arctic Archipelago, is that sovereignty liable to be undermined by future events?

In law, the term "sovereignty" is more readily applied to the authority, or "jurisdiction," of a state over land territory. It signifies the full and complete authority of an independent "sovereign," or in more modern terms "state," over the lands within its territorial limits. The test in law for determining whether a state has obtained that authority, or sovereignty, over land is one of effective occupation and control manifested through continuing acts of authority. As essential is the acquiesence of other states to the claim of sovereignty or their formal recognition of the claimant state' s authority.

In respect of the lands of the Canadian Arctic Archipelago, Canada's title and "sovereignty" are not in doubt. No state disputes Canada's claim over this territory, and thus no legal issues arise. Sovereignty over the waters between the islands of the archipelago, by contrast, is more complex, since historically the principle of freedom of the seas has meant that the jurisdiction of a state ends at its coast. The seas have been free and open to all.

The doctrine of the freedom of the seas runs contrary to any claim to Canadian sovereignty over Arctic waters. It would deny Canada the right to control access to those waters, to preserve the unique and fragile Arctic environment, or to protect the way of life of the indigenous inhabitants. For these and other reasons, successive Canadian governments have framed Canada's claim to the waters as a claim to sovereignty—a claim to full and complete authority and jurisdiction over the waters.

An enquiry into Canadian sovereignty over Arctic waters involves the questions of what jurisdiction a state may claim over waters off its coasts and whether Canada has done what is necessary to "perfect" a claim to these waters.

This submission will first outline the law relating to the authority of a state over waters off its coasts and then consider the Canadian claim over the waters of the Canadian Arctic Archipelago. It will then outline the areas in which the Canadian claim might be vulnerable in the future and suggest what should be done to preserve Canadian sovereignty over Arctic waters.

Can Canada really claim that it has sovereignty over Arctic waters if there are sub-surface transits of the Northwest Passage undertaken without Canada's consent? Sovereignty implies authority and control, both of which are lacking if Canada is not in a position to determine whether such voyages are taking place. Failure to take steps to ensure that there is knowledge of what is happening both on and under the surface of the waters of the Arctic could lead to the loss by Canada of its claim to sovereignty over Arctic waters.

Donald McRae

Protecting Canada's Territorial Sovereignty

This is the first obligation of the military. At a minimum it means:

  • the capability to survey and control Canadian territory, waters and airspace;

  • the capability to deter attacks on Canadian territory, waters and airspace;

  • the capability to assist governments in Canada, where required, in maintaining domestic peace and secunty.

Canada's unique geography makes these fundamental tasks both difficult and expensive—because of our size and coastline and northern location—and yet comparatively easier and less costly than for some other countries—because of our relative geographic isolation and our unique relationship with our neighbour, the United States.

Report of the Special Joint Committee of the Senate and the House of Commons, Canada's Defence Policy Security in a Changing World, 1994.

The Jurisdiction of a State over Waters off its Coasts

Traditional legal doctrine granted states authority over areas of sea off their coasts known as the "territorial sea." After years of controversy, it is now generally accepted that the breadth of the territorial sea is 12 nautical miles. The authority of a state within that territorial sea is akin to sovereignty, with one important exception: A state must grant foreign vessels a right of "innocent passage" through the territorial sea(2). In other words, although some limitations may be placed upon them, foreign vessels have a right of access through the territorial sea of any state.

Since the starting point for the territorial sea (the "baseline") was the low-water line on the coast, full "sovereignty" over waters—that is, sovereignty not subject to any right of passage—was limited to areas of the sea essentially enclosed by the land, bays having a narrow entrance-way into the sea. In such circumstances, states drew a straight "baseline" for the territorial sea across the mouth of the bay(3). The waters seaward of the line were the territorial seas (through which there would be a right of innocent passage), and the waters landward of the line were the "internal waters" of the state. "Internal waters" are treated in law as land territory. They are subject to the full sovereignty of the state, and no right of innocent passage exists through them.

In some instances, states have claimed that waters that would otherwise not be enclosed as internal waters be treated as internal by virtue of an "historic title." Such a title is established through a longstanding claim to the waters acquiesced to or recognized by other states. Canada's sovereignty over the waters of Hudson Bay is generally recognized as falling into the category of "historic title."

In 1951, the International Court of Justice accepted that states could draw "straight baselines" for the measurement of the territorial sea across areas of coast heavily indented with many off-lying islands. The example before the Court was the west coast of Norway, where the coastline is cut into by fjords and there are many small islands off the coast (known as the "skjaergaard")(4). Instead of following the low-water line, these "straight baselines" would be drawn from the most seaward points on the mainland and island coasts, linking mainland and islands and enclosing significant areas of water. The effect of these "straight baselines" was that the waters behind them would be "internal waters"; in other wordsq waters over which the state would have full sovereignty.

A potential qualification to the sovereignty of a state over its "internal waters" lies in those cases where the waters include a "strait used for international navigation." Such a "strait" is generally defined as a body of water joining two areas of high seas or joining the high seas and a territorial sea that is used for international navigation(5). In such straits, vessels have a right of passage equivalent to the right of innocent passage in the territorial sea or, where the regime of "transit passage" applies, a right even greater than that of innocent passage(6). Although the extent of use necessary to constitute a strait as "international" is a matter of some controversy, there must be some evidence that foreign shipping does in fact use the route for navigation.

The implications of the foregoing are that for Canada's claim to sovereignty over the waters of the Canadian Arctic Archipelago to be justified in law, it must be demonstrated that the waters are the internal waters of Canada and that the waters of the Northwest Passage do not constitute an international strait.

There's the whole area of the Arctic that we have to consider: how we continue to ensure that our interests are safeguarded in that area, because if you don't defend and you ignore certain parts of your landmass, then you are in effect saying that it's not that important to you, and you are inviting others to establish a presence.

David Collenette, Minister of National Defence, May 2,1994, transcription of remarks at Canadian Defence Preparedness Association Defence 2000 seminar, Ottawa.

The Legal Basis of Canada's Claim to Sovereignty over the Waters of the Canadian Arctic Archipelago

Canada's claim to sovereignty over the waters of the Arctic Archipelago has been expressed in a variety of ways, not always consistently but always with the objective of ensuring Canadian control over the waters and over passage through them. An early expression of this claim is the "sector theory" associated with the famous resolution asserting Canadian sovereignty up to the North Pole introduced into the Senate in 1907 by Senator Poirier. According to the sector theory, polar states are entitled to exercise sovereignty between their mainland territory and the North Pole in an area bounded by the lines of longitude running from their east and west coasts to the Pole.

The rationale for the sector theory has never been clear. To the extent that it is based on contiguity—that is, the claimant state happens to be next to the territory claimed—it does not provide a sound basis for founding a territorial claim. Nor can a solid foundation for the theory be found in the practice of states. Canadian of ficials have made statements from time to time indicating that Canada' s claim to sovereignty over Arctic islands and waters is based on the sector theory, but such statements have been neither uniform nor consistent. Certainly Canada has never disavowed the sector theory as a basis for its claim to sovereignty over the waters of the Arctic Archipelago, but neither has it made the theory a principal plank of its position(7).

Similarly, Canada has not claimed that its sovereignty over Arctic waters is based upon an historic title(8). Such a claim in respect of the waters has not been made consistently; official statements refer to historic title over the land only. Moreover, it would be difficult to argue that other states have recognized or acquiesced in any claim to historic title by Canada to all of the waters of the Canadian Arctic Archipelago.

The principal foundation in law for Canada's sovereignty claim over the waters of the Arctic Archipelago is that the waters lie behind the proper baselines for the measurement of the territorial sea (and hence are internal waters of Canada) and that the Northwest Passage does not constitute an international strait (and hence there is no right of passage through it for foreign vessels). Canada's approach to asserting its claim to sovereignty over these waters has been largely a reactive one; that is, rather than seeking the express approval of other states for its position, Canada has reacted to events that might be interpreted as challenges to its sovereignty. In the face of such events, the Canadian government has taken actions designed to reinforce Canada's authority and to make clear where sovereign authority lies. In other words, it has exercised authority where that has appeared necessary.

In the early 1970s such an approach was known as the "functional" approach to the assertion of Canadian sovereignty. Following the voyage of the American oil tanker Manhattan through the Northwest Passage, the Canadian government adopted the Arctic Waters Pollution Prevention Act (AWPPA)(9), under which Canada asserted the jurisdiction necessary to control future tanker traffic through the Northwest Passage.

The Manhattan was the first to test Canada's Arctic sovereignty.

Canadian officials followed this assertion of jurisdiction with a strategy to secure its international acceptance. Not prepared to have its authority challenged directly, Canada made a reservation to its acceptance of the jurisdiction of the International Court of Justice to prevent other states from challenging the Arctic Waters legislation before the Court. Ultimately, the Canadian strategy was successful, and Article 234 of the 1982 Law of the Sea Convention contains what is known as the "Arctic exception," a provision that recognizes the jurisdiction of states in ice-covered areas to take measures affecting shipping—for the purpose of preventing, reducing, and controlling marine pollution—that go far beyond those they could take in other ocean areas off their coasts(10).

The Arctic Waters Pollution Prevention Act was not an assertion of full sovereignty; indeed, critics argued that by asserting a jurisdiction less than sovereignty, Canada had diminished its sovereignty claim. But the AWPPA was a manifestation of sovereignty, and its ultimate international acceptance helped to consolidate Canada' s authority over the waters of the Canadian Arctic Archipelago.

In 1985, the voyage of the U.S. icebreaker Polar Sea through the Northwest Passage raised again the question of whether Canada really had sovereignty over the Passage. This clear indication that the United States did not accept Canada' s claim to sovereignty over the waters of the archipelago reinforced some of the concerns about the Manhattan voyage some fifteen years earlier. An important factor in ensuring the international validity of Canada' s claim is acceptance by other states, particularly by the only state having an overt interest in using the Northwest Passage for transit purposes(11).

The question for Canada at that time was whether everything possible had been done both to assert its claim to sovereignty over Arctic waters and to ensure that it was in a position to demonstrate a de facto capability to exercise the sovereign authority it claimed. Two types of action were taken by the Canadian government. First, "straight baselines" were drawn around the outermost islands of the Arctic Archipelago to indicate that these were internal waters of Canada. Second, measures were announced to reinforce Canada's presence in the area and to enhance its ability to detect the actions of others: building a Class 8 icebreaker and increasing surveillance overflights(12).

At the same time, Canada began exploring with the United States mechanisms to ensure that Canada could consent to the U.S. interest in the transit of the Northwest Passage. The result was the 1988 Arctic Cooperation Agreement, under which the United States pledged that all navigation by U.S. icebreakers in waters claimed by Canada to be internal would "be undertaken with the consent of the Government of Canada." However, the agreement also provides that nothing in it or any practice under it affects the position of either government in respect of "the Law of the Sea in this or other maritime areas"—in other words, both sides are preserving intact their respective positions on the status of the waters of the Northwest Passage. Thus, while the agreement does not advance Canada's claim, it does negate the impact of U.S. actions that would otherwise be detrimental to the claim.

Canada's claim to sovereignty over the waters of the Arctic Archipelago stands or falls on whether the drawing of straight baselines enclosing the waters as internal waters can be justified in law and on whether the waters of the Northwest Passage constitute an international strait. The argument supporting the use of "straight baselines" in the context of the Arctic Archipelago derives from the decision of the International Court of Justice in the Fisheries Case. The geographic relationship between the Canadian mainland and the islands of the archipelago and among the islands themselves; the unique nature of waters frozen and used as land for much of the year: the particular economic dependency of the indigenous peoples of the area on the waters; and the highly irregular and indented nature of the coastline and islands lead to the conclusion that this is almost a classic case for departure from the low-water line rule. As this writer said in an article some 11 years ago, "The Canadian Arctic is nothing more than the Norwegian skjaergaard writ large."(13)

Canada's drawing of straight baselines was protested by some states, although none took the opportunity to take the matter to the International Court of Justice, an option that Canada had expressly invited by removing its 1970 reservation to the Court's jurisdiction. Thus, the matter has not been resolved definitively. However, after an exhaustive analysis of the law on this matter, Canada's leading legal scholar on the waters of the Arctic, Professor Donat Pharand, has concluded that the "straight baselines" promulgated in 1986 are justified in law. Moreover, Professor Pharand has pointed out that most writers who have considered the matter of "straight baselines" for the Arctic have reached a similar conclusion(14). In short, the preponderant view of legal authorities is that the waters of the Canadian Arctic Archipelago are properly enclosed by straight baselines and are the internal waters of Canada.

Nevertheless, could the waters of the Northwest Passage still be regarded as constituting an international strait, through which a right of innocent or "transit" passage exists? The test for determining whether a body of water amounts in law to an international strait consists of two elements: a geographic test and a functional, or "use," test. There is no doubt that the Northwest Passage meets the geographic test; it is a body of water joining two oceans or two areas of high seas(15). The application of the functional test, however, suggests that these waters do not constitute an international strait.

The functional, or "use," test requires that the waters be "used for international navigation." The key question is whether a certain volume of shipping is necessary. Clearly, the fact that a body of water could be used for navigation does not constitute it an international strait. And, it is generally accepted that the use must be more than token or isolated; there must be evidence of actual use and some kind of widespread interest in continuing use. In the Corfu Channel Case(16), where the test was laid down, there were something in the order of 3000 transits of the North Corfu Channel over a 21-month period. In 1984, Professor Pharand pointed out that in an 80-year period there had been only 11 foreign transits of the Northwest Passage, all "with Canada's consent or acquiesence, either expressed or implied."(17) On that basis he was prepared to conclude that, "The Northwest Passage is not an international strait, because it has never been used for international navigation."(18)

Since that time, the voyage of the Polar Sea is the only known transit of the Passage undertaken without Canadian consent. This single isolated incident could hardly alter the validity of Professor Pharand' s conclusion, particularly in light of the United States having made it clear at the time that it did not regard the voyage as establishing a precedent that would challenge the Canadian position on the waters of the Northwest Passage. Moreover, the subsequent Arctic Cooperation Agreement suggests that there will be no more Polar Sea voyages—that is, no more American icebreakers transiting the Northwest Passage without Canadian consent. So, even if the Polar Sea was a precedent, it is no more than an isolated, single instance. Thus, the conclusion remains: The Northwest Passage is not a strait that is "used for international navigation" and hence cannot constitute in law an international strait.

The Future Vulnerability of Canadian Sovereignty over Arctic Waters

Can Canada rest satisfied that its claim to sovereignty over the waters of the Arctic Archipelago is secure and not subject to future challenge? The answer is no, for three reasons. First, the arguments to support the Canadian position haye not been tested in international litigation—and may never be—but until such a test occurs some uncertainty will remain. Second, it is not possible to say that the Canadian position on sovereignty over Arctic waters has received universal acceptance by other states. In particular, the position of the United States continues to be troubling for Canada. Third, the discussion of transit has always been about surface transit. What implications does subsurface transit have for Canadian sovereignty over Arctic waters?

There is no Canadian interest in having the question of Arctic sovereignty litigated before an international tribunal. No state is currently challenging Canada on this matter, and thus there is no question to be placed before such a tribunal. Moreover, the longer states refrain from active challenge to Canada's position, the stronger that position grows. In this respect, the words of Ivan Head written some 30 years ago remain valid today: "the passage of time enures to the benefit of the Canadian claim."(19)

Equally, it does not appear that any action by the Canadian government designed to change the position of the United States would be fruitful. Clearly, the United States has neither endorsed the view that the Northwest Passage is part of the internal waters of Canada nor accepted that the Passage does not constitute an international strait. At the same time, the United States does not appear interested in actively challenging the Canadian position. Moreover, the 1988 Arctic Cooperation Agreement assures that future voyages by U.S. icebreakers will be conducted only with Canada' s consent. In effect, the major threat to Canadian sovereignty posed by the voyage of the Polar Sea has now been eliminated(20). However, it is incumbent on Canada to ensure that any future voyages, whether by vessels of the United States or of other states, take place only with Canadian consent.

The principal issue that remains, therefore, is that of subsurface transit of the Northwest Passage. That such transits occur appears to be widely accepted, although their extent is a matter of speculation(21). The position taken by the Government of Canada has been that any submarine transit of Arctic water is undertaken pursuant to bilateral and multilateral defence arrangements and hence is, at least implicitly, with Canadian consent(22). However, this not only leaves unanswered the question of transit by states with whom no such defence arrangements exist, but also assumes that the United States would not in the future invoke these transits to the detriment of the Canadian claim. Furthermore, and perhaps most importantly, Canada' s argument that these voyages have been consented to assumes that Canada knows of each transit.

What would the consequences be for Canada of submarine transit of the Northwest Passage without Canada's knowledge or consent? Real doubt would be cast on the credibility of Canada's claim that it is exercising sovereign functions over Arctic waters. Incursions into the land territory of a state without that state's consent are regarded as serious encroachments on sovereignty, and the Arctic sovereignty claim treats the waters of the Northwest Passage as if they were land territory. At the very least, therefore, subsurface transits undertaken without Canada's consent are a serious encroachment on Canada's sovereignty over Arctic waters.

Would such transits weaken Canada's sovereignty claim? To a certain extent, the matter is complicated by the fact that these submarines would undoubtedly be military vessels. The ability of warships to partake of passage rights through the territorial sea and international straits has been a matter of controversy in international law(23). For its part, the United States is a strong advocate of warships having such rights, and the tenor of the 1982 Convention on the Law of the Sea is to treat warships as having access to international straits and to recognize that submarines may transit such straits submerged(24). As a result, any submarine transit of the Northwest Passage without Canadian consent could have an important impact on Canada's claim to sovereignty over those waters.

Such an impact would be twofold. First, if Canada does not know of these transits, or knows about them but does nothing, then the Canadian government is not exercising the functions of a state in that area(25). Those functions imply having authority and control over the area, both of which would be lacking if such transits continued unimpeded. Second, a pattern of submarine transit of the Northwest Passage over a period of time could give credence to the argument that the Northwest Passage was being "used for international navigation," and hence was subject to the regime of international straits. Again, this would defeat the Canadian sovereignty claim.

Commitments to Canadian Arctic Sovereignty

1970, Mitchell Sharp in the House (17 April)

    "I have made clear, as has the Prime Minister, that we will not back down one inch from our basic position on sovereignty."

1985, Jean Chretien in the House (10 September)

    "If we had a Prime Minister (Mr. Mulroney) who did not always go to the President (of the United States) on his knees, we would have been in a position to challenge the President and say that we would not tolerate such action" (infringement of Canada' s sovereignty in the Polar Sea incident).

1986, Lloyd Axworthy in the House (8 December)

    "Has this country the capacity to detect when its waters are being used, or do we simply rely on information from other countries? we expect answers from the government, not the cheap rhetoric of the Minister" (asking Joe Clark why u.s. suhmarines were able to traverse Arctic waters without Canadian knowledge or permission).

1990, Herb Gray in the House (6 March)

    "Again the government made ringing commitment s ahout not puthng a price on the defence of our Arctic sovereignty. What happened? It did put a price on it. Suddenly, Arctic sovereignty was too expensive" (criticizing the Conservative record on Arctic sovereignty).

What Must be Done to Preserve Canada's Sovereignty Claim?

The question arises, what must Canada do to ensure that its rights over Arctic waters remain secure? In respect of surface transit, Canada has acted to ensure that in practical terms its rights will not be challenged by the United States, although the question of enforcement has not been addressed clearly. Has Canada done the same in respect of subsurface transit? As a starting point, does Canada have an adequate surveillance capacity to ensure that it has knowledge of any subsurface transit of the Northwest Passage?

In 1971, the Defence White Paper indicated that Canada had "only very limited capability to detect submarine activity in the Arctic."(26) By 1983 the situation did not appear to have improved significantly; in that year the Sub-Committee on National Defence suggested that a bottom-based sonar system might be considered(27). Finally, the provision of a fixed sensor system in Arctic sea routes was announced in the 1987 Defence White Paper along with plans for the acquisition of nuclear-powered submarines(28). Such a system still remains to be established,(29) and plans for the submarines have been abandoned.

Are there any limits to what Canada must do to preserve its sovereignty claim over Arctic waters? In other words, does Canada have to take all measures possible to assert and continue to assert its sovereignty over these waters? Does this imply that it must be able to detect all transits of the Northwest Passage by whatever means they occur and have the capacity to enforce its laws against all who contravene them? In 1985 the government announced that it would construct a Polar Class 8 icebreaker to "provide more extensive support services, to strengthen regulatory structures, and to reinforce the necessary means of control."(30) Such a vessel was designed to signify that Canada had the means to exercise control over the waters of the Northwest Passage. In 1990 the project was cancelled. This raises questions about how Canada plans to exercise the sovereignty functions for which the icebreaker was intended.

Failure by a state to exercise its sovereign authority can lead to an abandonment of its sovereignty claim. Failure to object or to take action in the case of prejudicial activities of another state can constitute acquiescence to the activities of that state. In the context of sovereignty over land territory, it has been said that, "absence of a reasonable level of state activity can lead to a loss of title.''(31) This suggests that the standard is one of reasonableness. Thus, the question becomes, what is a reasonable level of activity in the context of the waters of the Canadian Arctic Archipelago?

Certainly, failure to take any steps at all to become aware of subsurface transit of the Northwest Passage would cast doubts on the seriousness of Canada's sovereignty claim and could, in the long term, contribute to a perception that it had been abandoned. By contrast, having the full capacity to become aware of any transit of the Northwest Passage and to prevent unauthorized entry into waters claimed by Canada to be internal would be a clear and unequivocal manifestation of sovereign authority. Obviously, this capability is unrealistic in the Arctic environment, in the light of the technological, economic, and political considerations that have to be taken into account. Nevertheless, some capacity for enforcement of Canada's sovereignty claim is essential.

The starting point for any enforcement function is knowledge. Thus, adequate provisions for surveillance become an essential element in maintaining Canada's sovereignty claim over Arctic waters(32). Knowledge of any subsurface transit gives Canada a variety of options, diplomatic and other, for dealing with potential challenges to its sovereignty. The objective is not necessarily to prevent such transits—indeed, past Canadian governments have indicated that they wish to ensure that properly controlled traffic does have access through the Northwest Passage. The objective is to ensure that such transits occur with Canadian consent and in accordance with regulations established by Canada— precisely what a sovereign state would expect of anyone entering its territory.

Conclusions

Canada' s claim to sovereignty over the waters of the Canadian Arctic Archipelago is well-founded in law. Its rests on the fact that the unique geography and environment of the Arctic Archipelago justifies the drawing of straight baselines and enclosing the waters as the internal waters of Canada. The relatively small number of transits of the Northwest Passage over history prevents it from being regarded as a strait "used for international navigation" to which the legal regime of international straits would apply.

Canada' s sovereignty over Arctic waters cannot, however, be taken for granted. Sovereignty can be lost; it can be abandoned. And it can be abandoned by dereliction. Failure by Canada to exercise its sovereign authority over the waters will diminish the credibility of its claim of sovereignty, and continued and frequent transit of the Northwest Passage, whether by surface or subsurface vessels, could lead to the Passage becoming a strait "used for international navigation." In such circumstances, Canada could no longer claim sovereignty over the waters.

Canada has taken measures to assure that surface transits are with its consent. In this regard the Arctic Cooperation Agreement diminishes the threat of unilateral transit by U.S. government icebreakers. And Canada has the capacity through overflight and surface vessels to monitor foreign surface passage or overflight. Subsurface passage, by contrast, remains a matter over which Canada is not in a position to assert its sovereign authority.

A precondition for exercising enforcement jurisdiction— for taking measures against unauthorized subsurface traffic— is knowledge of occurrence. To exercise the sovereign authority it claims and to preserve its claim to sovereignty over Arctic waters, Canada must at least be in a position to monitor subsurface use of the waters of the Arctic Archipelago.

Donald McRae is a Professor of Law at the University of Ottawa.

Endnotes

1. The term "waters of the Canadian Arctic Archipelago" refers to the water between the islands of the archipelago and not to the waters in the open seas of the Beaufort Sea and the Arctic Ocean to the west or to the waters of Davis Strait and Baffin Bay to the east.

2. This nght of "imnocent passage" also includes a nght of overflight.

3. According to Article 7 of the 1958 Convention on the Territonal Sea and Contiguous Zone, such a baseline could be no more than 24 miles in length. Article 10 of the 1982 Convention on the Law of the Sea contains the same provision.

4. Fisheries Case ( United Kingdom v. Norway) [1951] I.C.J. Rep. 116.

5. Article 37 of the 1982 Convention on the Law of the Sea applies the international straits regime also to straits between the high seas and the exclusive economic zone of a state.

6. The concept of "transit" passage embodied in Part 111, Section 2 of the 1982 Law of the Sea Convention prevents the coastal state from impeding "continuous and expeditious" transit by foreign vessels.

7. Foradetailed discussion of the sectortheory, see Donat Pharand, Canada 's Arctic Waters in International Law 3-87 (1988).

8. Ibid.,89- 130.

9. Statutes of Canada, 1969-70, c. 47.

10. The Law of the Sea Convention will enter into force later this year, although it is unlikely that either Canada or the United States will be parties to it at that time. This does raise some questions for Canada about the exact status of the provisions of Article 234.

11. The United States did attempt to downplay the significance of the voyage for the sovereignty issue. See Griffiths, "Beyond the Arctic Sublime" in Franklyn Gnffiths, ed., Politics of the Northwest Passage, 248 (1987). Nevertheless, the voyage was undertaken without seeking the consent of Canadian authorities.

12. Statement of the Secretary of State for External Affairs to the House of Commons, 10 September 1985. House of Commons Debates, 6462-4.

13. McRae, "Arctic Waters and Canadian Sovereignty" International Journal 38 (1983): 483-4.

14. Pharand, Canada'sArctic Waters, pp. 159-179. See note 7.

15. Law of the Sea Convention, 1982. Articles 37 and 45.

16. [1949] I.C.J. Rep. l.

17. Northwest Passage: Arctic Straits, 102 (1984).

18. Ibid., 120.

19. Head, "Canadian Claims to Territonal Sovereignty in Arctic Regions," McGill L.J. 9:219 (1962-63).

20. It should be noted that some have questioned the effectiveness of the Arctic Cooperation Agreement as a means for protecting Canadian sovereignty. In particular, it has been argued that the reference to the consent of Canada does not guarantee that consent will be requested before a voyage takes place. See Purver, "Aspects of Sovereignty and Security in the Arctic," in Canadian Oceans Policy: National Strategies and the New Law of the Sea, ed. Donald McRae and Gordon Munro, 172-173 (1989).

21. Ibid., pages 712 and 177. See also Critchley, "Defence and Policing in Arctic Canada" in Politics of the Northwest Passage, p. 209. See above, note 11.

22. Purver, pp. 172 and 176. See above, note 20.

23. See Brownlie, Principles of Public International Law, 3rd ed., 206-207 (1979).

24. The reference in Article 39 (I)(c) of the 1982 Law of the Sea Convention to transit by vessels in their "normal modes" is understood to mean submerged transit by submarines.

25. As Purver has wrinen, "the occurrence of activities that Canada has little ability to detect, let alone prevent, cannot but derogate from its claim to full sovereignty." See above, note 20, p. 178.

26. Defence in the 70's 18 (1971).

27. Canada's Maritime Defence: Report of the Sub-Committee on National Defence 51 (1983).

28. Challenge and Commitment: A Defence Policy for Canada, 51 -52 (1987).

29. The development of an Arctic subsurface surveillance system was announced by the Minister of National Defence on 3 January 1991, but the matter has yet to be proceeded with.

30. See above, note 12.

31. Brownlie, p. 148. See above, note 23.

32. As Professor Pharand has said: "Surely [Canada] has a right to know what goes on in its own waters; indeed, it has a duty to find out." See above, note 7, p. 243.


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