Law of the Sea in the Canadian Arctic: The Pattern of Controversy (Part I), The

The Law of the Sea in the “Canadian” Arctic:

The Pattern of Controversy (Part I) t

William V. O’Brien* and Armando C. Chapelli ”

Introduction

The already overtaxed international law of the sea was confronted
with new problems in the spring of 1970. In April, the Canadian
Parliament was asked to approve the Arctic Waters Pollution Pre-
vention Act’, which claimed the right to regulate all shipping in zones

t Part two –
number four.

the conclusion to this article –

is to appear in volume 19,

* Professor of Government; Chairman, Institute of World Polity, School of

Foreign Service, Georgetown University, Washington, D.C.

** Graduate Fellow, Department of Government and Institute of World
Polity, Georgetown University. The authors gratefully acknowledge the advice,
assistance and encouragement of Professor Myres S. McDougal, Yale Law
School. They also thank the following students in the School of Foreign
Service for their assistance: Michael Reichert, Intern, Institute of World
Polity; David L. Ganz, Ronald W. Kleinman, and Barbara B. Price.

‘Arctic Waters Pollution Prevention Act, 18-19 Eliz. II, S.C. 1970, c. 47;

reprinted in 9 I.L.M. 543; hereinafter cited as Pollution Prevention Act.

The Act was introduced on 8 April 1970, approved unanimously by the
House of Commons on 9 June 1970, by the Senate on 9 June 1970, and received
Royal Assent on 26 June 1970.

The application of the Act is as follows:

3.
(1) Except where otherwise provided, this Act applies to the waters
(in this Act referred to as the “Arctic waters”) adjacent to the mainland
and islands of the Canadian arctic within the area enclosed by the sixtieth
parallel of north latitude, the one hundred and forty-first meridian of
longitude and a line measured seaward from the nearest Canadian land
a distance of one hundred nautical miles; except that in the area between
the islands of the Canadian arctic and Greenland, where the line of equi-
distance between the islands of the Canadian arctic and Greenland is less
than one hundred nautical miles from the nearest Canadian land, there
shall be substituted for the line measured seaward one hundred nautical
miles from the nearest Canadian land such line of equidistance.

(2) For greater certainty, the expression “arctic waters” in this Act in-
cludes all waters described in subsection (1) and, as this Act applies to
or in respect of any person described in paragraph (a) of subsection (1)
of section 6, all waters adjacent thereto lying north of the sixtieth parallel
of north latitude, the natural resources of whose subjacent submarine
areas Her Majesty in right of Canada has the right to dispose of or
exploit, whether the waters so described or such adjacent waters are in
a frozen or a liquid state, but does not include inland waters.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

for Canada –

stretching north of the Canadian mainland up to one-hundred miles.
This new and –
startling claim was justified as a
measure necessary to protect Canada’s coastal and maritime resour-
ces against pollution. The timing of this claim was seemingly clear.
In the summer of 1969, the U.S. tanker S.S. Manhattan, owned by
the Humble Oil and Refining Co., had made a successful voyage
through the Northwest Passage. It now appeared that ice-breaking
supertankers might have a feasible ‘route from the oil fields of
Alaska’s North Slope to the Eastern Seaboard of the United States.
It also appeared to Canadians that incidents such as the 1967 Torrey
Canyon wreck and the 1968 Santa Barbara oil spill might now pose
a clear and present threat to Canada’s Arctic environment. This
threat was underscored in February 1970, when the Liberian tanker
Arrow ran aground in Chadabucto Bay off Nova Scotia, polluting
the waters and coast.

The timing of the Canadian hundred-mile anti-pollution claim
also seemed to be related to mounting domestic pressures for asser-
tion of Canada’s national identity in the face of continuing trends
towards political, economic, and cultural dominance by the United
States. In the spring of 1970, the confluence of genuine environmen-
tal concern and nationalistic sentiments appeared to produce an
initiative quite in contrast to Canada’s traditional conservative and
internationalist approach to international law issues.

This initiative came at a time when the United States was pre-
paring its own initiatives with regard to the law of the sea. On May
23, 1970, President Nixon would make proposals for solution of ma-
ritime problems through international conferences leading to com-
prehensive international conventions and the strengthening and/or
establishment of international organizations. Canada was to view
its own initiative as enlightened unflateralism, leading to badly
needed new customary international law. The United States was to
react sharply against the substance and the form of the Canadian
initiative even before passage of the Arctic Waters Pollution Pre-
vention Act on June 17, 1970.

The sharp U.S. reaction against the Canadian initiative was
elicited not only by the claim to a hundred-mile pollution zone but

2See: U.S. Dept. of State Press Release No. 229, 3 August 1970, 9 I.L.M. 1046;

U.N. Doc. A/AC. 138/25, 3 August 1970.

See generally: Draft U.N. Convention on the International Seabed Area:
U.S. Working Paper Submitted to the U.N. Seabed Committee, (1970) 63 Dep’t.
State Bull. 209; Ratiner, United States Oceans Policy, (1971) 2 J. Maritime L.
& Com. 226; Krueger, An Evaluation of United States Oceans Policy, (1971)
17 McGiU LJ. 603.

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[Vol. 19, No. 3

as well by the announcement that Canada would extend its territorial
waters from three to twelve miles. The seriousness of the Canadian
break with the past was further underscored by Canada’s submis-
sion of a reservation to its adhesion to the International Court of
Justice, precluding adjudication of controversies arising out of the
Pollution Prevention Act.4

Canada did not put the new Pollution Prevention Act into effect
until August 2, 1972. But during the two years following its passage,
the issue of Canada’s claims became a cause cgl~bre of considerable
importance. It attracted the attention of eminent publicists who
have, in a short time, produced an impressive journal of literature
on the subject. The controversies evoked by Canada’s Arctic initiative
continue.0 They are important in two ways. First, the merits of the
claims to a twelve mile territorial sea, a hundred-mile contiguous

3 An Act to Amend the Territorial Sea and Fishing Zones Act, 18-19 Eliz. II,
S.C. 1970, c. 68; 9 I.L.M. 553; hereinafter cited as Territorial Sea Act. The Act
was introduced on 8 April 1970, approved by the House of Commons on
4 June 1970, by the Senate on 18 June 1970, and received Royal Assent the
same day.
4 Canadian Declaration Concerning the Compulsory Jurisdiction of the Inter-
national Court of Justice, 7 April 1970; U.N. Communication CN.53.1970; Trea-
ties No. 3 of 21 April 1970; 9 I.L.M. 598.

5 The Arctic Waters Pollution Prevention Regulations were made effective

2 August 1972; see Canada Gazette, Part II, vol. 106, No. 14, at p. 1033.

6 See: Lloyd, Canada’s Arctic in the Age of Ecology, (1970) 48 Foreign Affairs
726 (hereinafter cited as “Lloyd”); Johnston, Canada’s Arctic Marine Environ-
ment: Problems of Legal Protection, (1970) 29 Behind the Headlines 1 (here-
inafter cited as “Johnston”); Bilder, The Canadian Arctic Waters Pollution
Prevention Act: New Stresses on the Law of the Sea, (1970) 69 Mich. L. Rev. 1
(hereinafter cited as “Bilder”); Cohen, The Arctic and the National Interest,
(1970-71) 26 Int’l J. 52 (hereinafter cited as “Cohen”); Legault, The Freedom
of the Seas: A License to Pollute?, (1971) 21 U. of T.L.J. 211 (hereinafter cited
as “Legault”); Neuman, Oil on Troubled Waters: The International Control of
Marine Pollution, (1971) 2 J. Maritime L. & Com. 349 (hereinafter cited as
“Neuman”); Wilkes, International Administrative Due Process and Control of
Pollution – The Canadian Arctic Waters Example, (1971) 2 J. Maritime L. &
Com. 499 (hereinafter cited as “Wilkes”); Henkin, Arctic Anti-Pollution: Does
International Law?, (1971) 64 AJ.I.L. 131 (herein-
Canada Make – or Break –
after cited as “Henkin”); Green, International Law and Canada’s Anti-Pollution
Legislation, (1971) 50 Ore. L. Rev. 462 (hereinafter cited as “Green”); Beesley,
Rights and Responsibilities of Arctic Coastal States: The Canadian View, (1971)
3 J. Maritime L. & Com. 1 (hereinafter cited as “Beesley”); Sutton, Pollution
Prevention in the Arctic – National and Multinational Approaches Compared,
(1971) 5 Ottawa L. Rev. 32 (hereinafter cited as “Sutton”); Milsten, Arctic
Passage – Legal Heavy Weather, (1972) 15 Orbis 1173 (hereinafter cited as
“Milsten”); Wulf, Contiguous Zones for Pollution Control, (1972) 3 J. Maritime
L. & Com. 537 (hereinafter cited as “Wulf”).

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

zone, and exclusive jurisdiction over straits in the Northwest Pas-
sage are controverted and significant in their own right. Second, the
adoption by Canada of a unilateral approach to major problems of
the law of the sea, especially those of environmental protection, raises
major questions about the processes of international law. We have
a clear-cut clash between a unilateral Canadian strategy emphasizing
the building of customary international law opposed to a U.S. inter-
nationalist strategy emphasizing conventional
law
and the development of international organizations. Underlying the
debate are profound questions about the sources, definition and role
of general principles of law in this epoch of change in the law of
the sea7

international

All in all, the particular character and broader implications of
the Canadian-U.S. controversy over the “Canadian” Arctic seemed to
the authors to invite an analysis in the manner of Harold Lasswell
and Myres S. McDougal.” No jurisprudential system has dealt so
profoundly, comprehensively and provocatively with the dynamics
of the international law-making process. We believe that the Lass-

7 See: R.L. Friedheim, Understanding the Debate on Ocean Resources, (Law
of the Sea Institute, Univ. of Rhode Island, Occasional Paper No. 1, February
1969).

sM.S. McD6ugal et al., Studies in World Public Order, (1960); M.S. McDou-
gal & Florentino P. Feliciano, Law and Minimum World Public Order: The
Legal Regulation of International Coercion, (1961), (hereinafter cited as “M.
McDougal & F. Feliciano”); M.S. McDougal & William T. Burke, The Public
Order of the Oceans: A Contemporary International Law of the Sea, (1962),
(hereinafter cited as “M. McDougal and W. Burke”); M.S. McDougal, H.D.
Lasswell, & J.C. Miller, The Interpretation of Agreements and World Public
Order, (1967); D.M. Johnston, The International Law of Fisheries, (1965);
M.S. McDougal, “International Law and the Law of The Sea”, and W.I.
Burke, “Law and New Technologies”, in The Law of the Sea, (L. Alexander,
ed., 1967), at pp. 3 and 204; W.T. Burke, “Ocean Sciences, Technology and
the Future International Law of the Sea”, in The Future of the International
Law of the Sea, vol. 2, Wealth and Resources, (R. Falk & C. Black, eds.,
1970), at p. 183; M.S. McDougal, H.D. Lasswell, & W.M. Reisman, Theories
About International Law: Prologue to a Configurative Jurisprudence, (1968)
8 Va. J. Int’l L. 188; H.D. Lasswell & M.S. McDougal, Criteria for a Theory
About Law, (1971) 44 S. Cal. L. Rev. 362; W.M. Reisman, Nullity and Revision,
(1971); S.N. Moore, Law and the Indo-China War, (1972); note Moore’s
chapter 2, “Prolegomenon to the Jurisprudence of Myres McDougal and
Harold Lasswell”, at p. 47; D. Daniel, Clarification and Appraisal of the
Policy-Framework for International Legal Analysis; Inquiry into the Work
of Myres S. McDougal, (Ph. D. dissertation, Georgetown Univ.: 1971); H.
Lasswell, “Future Systems of Identity in the World Community”, in The
Future of the International Legal Order, vol. 4, The Structure of the In-
ternational Environment, (C. Black & R. Falk, ed., 1972), at p. 3.

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[Vol. 19, No. 3

well-McDougal analytical matrix is especially relevant to a contro-
versy such as this, wherein an orderly examination of events, claims,
normative issues and authoritative decisions about the law is equally
feasible and desirable. Unlike many law of the seas controversies, we
have in the Canadian case access to ample empirical and legal
sources.

To be sure, the demands of the Lasswell-McDougal jurispruden-
tial approach are great. It is not always possible to assemble and
adequately interpret the facts and the records of claims and counter-
claims requisite to the most fruitful application of this approach.
But, it is believed, the Canadian-U.S. dispute over the law of the sea
in the “Canadian” Arctic provides an important opportunity to em-
ploy the Lasswell-McDougal system, and thereby advance both the
debate on the international law of the Canadian Arctic and efforts
to build a more adequate philosophy and methodology of interna-
tional law.

In addition to the formidable problems of gathering and inter-
preting the factual basis for this analysis, we also face the problem
of doing justice to the concepts and methods of the Lasswell-McDou-
gal jurisprudence. Lasswell, McDougal and their associates have
developed their system through a process of unending review, cor-
rection, elaboration and expansion. A survey of their works shows
changes in terminology, form and substance, sometimes quite nuan-
ced. Those outside the mainstream of this most significant of con-
temporary international law theories and approaches will necessar-
ily fall short in large and small ways in their understanding and ap-
plication of the Lasswell-McDougal system. But this risk must be
taken.

The purpose of the Lasswell-McDougal school is eminently prac-
tical. It seeks to improve the capability of publicists and practitioners
to deal with the awesome problems confronting the world public
order. Ironically, while there is a substantial theoretical literature
criticizing the Lasswell-McDougal jurisprudence, there appears to be
a relatively more modest literature reflecting efforts to try out this
approach rather than to debate it in general terms. This study re-
presents an effort to learn more about the Lasswell-McDougal system
by using it. It does not purport to test or validate that system, or
demonstrate that it is more desirable to follow than some other. It
does attempt to demonstrate what results from an effort to channel

9 See: Young, International Law and Social Science: The Contributions of
Myres S. McDougal, (1972) 66 AJ.I.L. 60; McDougal, International Law and
Social Science: A Mild Plea in Avoidance, (1972) 66 AJ.I.L. 77.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

the material and legal components of an important contemporary
international law controversy through the Lasswell-McDougal world
public order matrix.

This study follows generally the organization in Myres S. McDougal
and William T. Burke, The Public Order of the Oceans. This is re-
flected particularly in the division between the process of interac-
tion and the process of claims. First, a brief summary is offered of
the historical record of interaction in the North American Arctic.
Next, the process of contemporary interaction in the North American
Arctic is outlined. The main body of the study then examines the
process of claims with respect to this region. A closing section of
appraisal and recommendations undertakes to indicate the impli-
cations of the preceding analysis for the process of authoritative
decision.

In our title and in this introductory section we have placed
quotation marks around “Canadian” Arctic. We thereby hope to
convey a fundamental uncertainty about the meaning of that cha-
racterization. As will be seen, Canadian official statements and the
discussions of publicists tend to refer to the Canadian Arctic and to
the Canadian Arctic Waters. The mix of considerations of geogra-
phy, politics and law resulting in this characterization is not clear
to us. Even if the characterization is political and legal as well as
geographic, it is not clear what is claimed. We will, henceforth, drop
the quotation marks around Canadian Arctic and Canadian Arctic
Waters, but the issues to which they refer remain to be considered.

I. Historical Interaction in the North American Arctic

A comprehensive account of interaction in the Arctic Ocean would
require a detailed description of relevant actors and a chronology of
their activities there from ca. 320 B.C. to the present. Such a survey,
the literature suggests, would be of considerable interest, for Arctic
history contains the records of many truly epic adventures. The
analytical focus of this section will, however, be confined to recent
and contemporary interaction. The four historical periods most easily
discerned in the Arctic process of interaction are: (1) the period of
discovery and exploration; (2) the period of early aviation; (3) the
period of aviation and the Cold War; and (4) the period of “exploita-
tion”. The latter three will receive the bulk of attention.

To be sure, any subcompartmentalization of history is arbitrary.
Arctic history is complex, riddled with overlapping activities and
impervious to attempts at isomorphic reconstruction. Hence, the
object in establishing historical boundaries is simply to facilitate

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[Vol. 19, No. 3

analysis and to provide signposts indicating the dominant trends
in Arctic interaction at various times. Before each period is ap-
proached individually, however, a broad characterization of the
process of interaction is in order.

One quality of the process that is essential to grasp at the outset
is that it is intimately tied to the broader interactive arena of the
North Polar Region –
including lands, ocean areas, air space and
ice areas. Thus, in the sections that follow, a broad spectrum of
Arctic enterprises will be examined or discussed. Heavier emphasis
will, of course, be accorded to those activities directly related to
ocean areas.

A more or less permanent feature of Arctic interaction pertains
to the number of actors that it has attracted through the centuries.
In comparison to other legal arenas, there have not been many. The
more important national participants have been Norway, Denmark,
Britain, Russia, the U.S.A., Sweden, Canada, Holland, Germany,
France and, briefly, Ireland –

a total of eleven actors. 0

Another trait peculiar to Arctic interaction is the abundance of
projects that have been organized jointly by any number of these
actors combined. Such projects have ranged in objective from explo-
ration to rescue, and have appeared throughout the region’s recent
history.” In 1882, for instance, the “International Polar Year” pro-
gram was inaugurated. A series of expeditions followed which were
later described as a “tremendous gesture of international co-opera-
tion for strictly scientific purposes”. 2 Through the program, some
700 men from different nations participated in setting up and/or
manning 49 research stations in the Arctic and Antarctic.8 This was
followed in 1932-1933, when the International Meteorological Orga-
nization proposed the “Second International Polar Year”. 4

Finally, the Arctic process of interaction is also unique in that
many of its component activities can be characterized as apolitical in
intent and effect. The great Arctic explorer, Sir John Franklin, once
stated that, “Arctic discovery has been fostered from motives as
disinterested as they are enlightened; not from any prospect of im-
mediate benefit, but from a steady view to the acquirement of useful

10 For relevant accotmts, see: P.-E. Victor, Man and the Conquest of the
Poles, (S. Sullivan, tr., 1963); L.P. Kirwan, A History of Polar Exploration,
(1960).

“1 Ibid.
12 J. Mirsky, To The Arctic!, (1949); hereinafter cited as “Mirsky”.
13 Ibid.
‘4 Fleming, The Proposed Second International Polar Year, 1932-1933, (1932)

22 Geog. Rev. 131.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

knowledge”. 15 While Sir John’s remarks overstate the case, for
different objectives have motivated Arctic discovery and interaction
at different times, 0 they do represent the thinking of many early
and contemporary Arctic participants.
a. Period of Discovery and Exploration

Discovery and exploration activities occupy approximately 2200
years of the process of interaction in the Arctic. This is the period
that bears least relevance to the present study. The process during
this long exploratory preamble lacked, with some notable excep-
tions,17 the sense of purpose, coherence and immediacy that contem-
porary legal analysis demands. Nevertheless, participation during
this period retains some interest as a vehicle for the more interested
scholar to acquire the broadest perspective on Arctic history. One
may see, generally, the works of Greely, Victor, Kirwan, Mirsky and
Taracouzio;18 in their summaries and descriptions, one will no doubt
find “an adequate idea of the true aspects of such voyaging”. 19
b. Period of Early Aviation

Twelve years prior to Peary’s ambitious declaration of “posses-
sion” on reaching the North Magnetic Pole (April 6, 1909),20 the
Swedish explorer, Andree, embarked on the first airborne expedition
to the Arctic, in a drift balloon. Though his attempt ended in tragedy,
it opened a new era in the Arctic process of interaction.2′ Public and
private flying expeditions followed, under sponsorship by a limited
number of nations and groups. Among them we find Swedish (1931),
German (1910 and 1932), Russian (1914), Norwegian (1923 and
1926), Swiss (1923), British (1924), American (1924,’25,’28,1929 and
other dates) and Ilalian (1928) participants. 22

15 Quoted in A.W. Greely, Handbook of Polar Discoveries, (1907), at p. 7;

hereinafter cited as “Greely”.

16 See infra, at pp. 334 et seq.
17E.g., the development of Russia’s Arctic regions after Peter the Great’s
18 All previously cited. See also the many individual chronicles by explorers

death. See: TA. Taracouzio, Soviets in the Arctic, (1938).

such as Peary, Ross and Greely.

19 Greely, supra, n. 15.
2
0 R.E. Peary, The North Pole, (1910), at p. 297.
21 His remains were found on White Island in 1930. See W.L.G. Joerg, Brief
History of Polar Exploration Since the Introduction of Flying, (1930); also
L. Ellsworth, Air Pioneering in the Arctic: The Two Polar Flights of Amundsen,
(1928); American Society of Mechanical Engineers, Symposium on Arctic and
Winter Flying, (1933) 8 Aviation Engineer 21; Wilson, Northwest Passage by
Air, (1943) 26 Can. Geog. J. 107.
22 Lloyd, Arctic Air Transport, (1946) 1 Air Affairs 218; hereinafter cited as

“Lloyd, Arctic Air Transport”.

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[Vol. 19, No. 3

Russia’s Arctic flying represented the most serious and concerted
of the early efforts. After 1924, Trevor Lloyd reports, Arctic flying
in the U.S.S.R. may be considered to have become almost common-
place.2 By the late 1930’s the Russians had made it clear that inter-
continental flying, via the Arctic, would be a welcome development.2 4
In contrast, the U.S., Great Britain and other nations gave little
official support to the concept 25

Land and sea exploration did not, of course, cease with the intro-
duction of the airplane, zeppelin, dirigible, and balloon. Paralleling
the activities of these airborne pioneers were some 21 major earth
and ocean-bound expeditions .2 They included, among others, those
of Peary (first to reach the North Pole), Stefansson (Victoria Island,
Beaufort Sea), and the “Second International Circumpolar Year”
(Arctic Siberia) 27

c. The Period of Aviation and the Cold War

If you shoot robot bombs (as Heaven preserve us from ever doing), they
will cross the Arctic Circle, on their way from London to Seattle, from
Peiping to New York, from San Francisco to Moscow. That is the way
the bombers will fly if we ever permit them to.28
Stefansson’s commentary in 1945 was accurate, but hardly earth-
shaking: the possibility of transarctic hostilities was brought to the
surface earlier in 1940 by the Nazi invasion of Denmark; 2
9 it was
followed by subsequent vying among the belligerents for control of
Greenland and Iceland.30 Thus, began phase 1 of the third period,
during which military aviation dominated Arctic interaction.

(i) Phase I

The first order of business after the invasion was to plan and
develop adequate air routes to Europe and the Orient. Since the time
of the Armistice in November of 1918, the construction of flying
facilities in Canada had progressed very slowlyY’l Four major net-
works of bases had to be established as a result: The Northwest

23 Ibid.
241bid.
25 Ibid.
26Mirsky, supra, n. 12: App. III, at p. 334.
27Ibid.
2 8V. Stefansson, Arctic in Fact and Fable, (1945), at p. 65.
29W.G. Carr, Checkmate in the North, (1944). Carr discusses the plans of

the Axis powers to invade America.

30 Lloyd, Arctic Air Transport, supra, n. 22, at p. 224; Pleischke, Trans-Polar

Aviation and Jurisdiction Over Arctic Airspace, (1943) 37 A.P.S.R. 999.

31 Wilson, The Expansion of Aviation into Arctic and Sub-Arctic Canada,

(1950) 41 Can. Geog. J. 130; hereinafter cited as “Wilson, 1950”.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

Staging Route, the Trans-Atlantic Ferry Route, the “Crimson” Route,
and the Canol or Mackenzie Route.3

The Northwest Staging Route (NWSR). Construction of such a
route became an imperative with the entry of the U.S. into the War
in December, 1941. Work on the project, however, had begun earlier,
in 1940, at the request of the Joint U.S. – Canadian Defense Board.3 3
The Route’s main fields were located at Edmonton, Grand Prairie,
Fort St. John, Fort Nelson, Watson Lake and Whitehorse,34 and they
were followed on the ground by the route of the Alaska Highway,
whose object was in part to service them 3

The Trans-Atlantic Ferry Route (TAFR). Both Canada and the
U.S. planned and built the TAFR’s bases. Canadian-built were those
at Montreal, Mont Joli, the Saguenay, Seven Islands, Moncton,
Sydney, Tor Bay, and Goose Bay. The U.S. built its facilities at
Mingan, Stephenville and Argentia.36 TAFR bases “added greatly to
the efficiency and safety of the … ferry system and the anti-sub-
marine patrols off the Atlantic and Gulf of St. Lawrence coasts.” 37
They also helped the U.S. solve many logistics problems that its new
bases in Greenland and Iceland presented.

The Crimson Route. This was the most politically and legally
controversial, yet militarily least useful, of the four routes. It was
built in its entirety by U.S. Government forces to provide the shortest
journey from Los Angeles to northern European points. It consisted
of bases at Churchill, Manitoba; Southampton Island and Frobisher
Bay on Baffin Island; and Fort Chimo, Quebec. When in the early
1940’s, new, more southerly routes were opened as a result of Ger-
man activities in North Africa, Canada demanded and obtained the
transfer of all “Crimson” bases3 8 The Prime Minister reasoned that
it was only proper for Canada to contribute to the war effort by,
“taking responsibility for the provision of facilities in Canada and

32 Ibid., at pp. 138-40; also, Lloyd, Arctic Air Transport, supra, n. 22, at p. 224.
33 Wilson, It Cost $58,000,000 (1944) 17 Can. Aviation 27; hereinafter cited

as “Wilson, 1944″.

at p. 228.

34 Wilson, 1950, supra, n. ’31, at p. 139.
-35 Ibid.; Wilson, 1944, supra, n. 33; Lloyd, Arctic Air Transport, supra, n. 22,
36 Wilson, 1950, supra, n. 31, at pp. 139-40.
37 Ibid.
38 Lloyd, Arctic Air Transport, supra, n. 22, at p. 226; Wilson, 1950, supra,
n. 31, at p. 140. These authors differ in the amount of money that they claim
Canada had to pay to the U.S. for the bases. Wilson indicates a $76,000,000
figure, while Lloyd offers a more conservative $30,000.000 total. It is likely
that they are referring to different bases or numbers thereof.

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[Vol. 19, No. 3

Labrador” 9 He added that “it was thought undesirable that any
other country should have financial investment in improvements of
permanent value such as civil aviation facilities for peace-time use
in this country.”40

The Canol Route. The need for oil products in Alaska during the
war and their availability in the Norman Wells field of the Macken-
zie called for the development of a fourth air route 41 Facilities were
again built by U.S. Forces with approval and assistance from
the Canadian Government.4 2 In its final form, the route consisted of
airstrips located at Fort Smith, Hay River, Yellowknife, Wrigley, Fort
Norman, and other northern outposts.

(ii) Phase II

The end of hostilities marked a new threshold for Arctic interac-
tion. The development of atomic weapons by the U.S. and their sub-
sequent acquisition by the Soviet Union ushered in the Cold War
phase of the third period. Overnight, Stefansson’s prophecy had
acquired unanticipated dimensions, for military technology had
caught up with Arctic geographic conditions. Strategic concern with
Arctic airspace thus continued to dominate international interaction.
In 1955, construction of the “Distant Early Warning” (DEW) and
“Mid-Canada” Lines was undertaken 43 Both were projects of un-
precedented proportions – particularly in the Arctic. Of the two, the
DEW Line bears special interest for three reasons: (1) it was built
on territory lying exclusively within the Arctic Circle;44 (2) it was
built by the U.S.A. in U.S., Icelandic, Canadian, and Danish territory,
under management by Western Electric Co., an American firm
under contract to the U.S. Air Force; 45 and, (3)
it introduced
twentieth century technology into the Arctic process of interaction

39 Canada, Parliament, House of Commons, 82 Hansard 5708 (1944); see

also Cost of 24 Northern Airfields, (1944) 82 Roads & Bridges.

40 Ibid.
41 Finnie, U.S. Army Taps Canadian Oil for Alaskan-Based Operations, (1943)
14 World Petroleum 32; U.S. Congress, Senate, Special Committee Investi-
gating the National Defense Program, “The Canol Project”, Hearings, 78th
Cong., 1st Sess., 9287 (1943).

42 Wilson, 1950, supra, n. 31, at p. 139.
43Bagnall, Building the Distant Early Warning Line, (1955) 47 Military
Engineer 429. For earlier debates on the strategic pros and cons of the Arctic
see: Jones, Light, Darkness and Polar War, (1949) 2 Air U.Q. Rev. 48; South,
Alaska and National Policy, (1949) 3 Air U.Q. Rev. 44; Arctic Flying in the
Next War, (1955) U.S. News & World Report.

44The path of the Mid-Canada Line is sub-arctic.
45 Bagnall, Operation DEW Line, (1955) 259 Franklin Inst. J. 481.

1973]

LAW OF THE SEA IN THE “CANADIAN” ARCTIC

(including the Arctic Ocean). In the words of the London Economist,
“They [the Americans] are making a mass assault on the Arctic the
like of which the northern wilderness has never seen before. 40
Designed as a 10,000 mile line of protective radar stations to guard
against attack by assault bombers over the pole, completion of the
DEW system required the work of 23,000 engineers for a period of
over two and one-half years. 7 Its total cost is impossible to ascer-
tain, but Sutherland reports a ten-year (1951-1961)
joint U.S.-Cana-
dian expenditure in continental air defense of over $50,000,000,000.48
During the early 1960’s, technological developments (e.g., ICBM’s
and Satellite surveillance) rendered the DEW Line obsolete from a
strategic standpoint.49 Its facilities, however, continued to be utilized
for surveillance and other purposes such as international communi-
cations and research. 0 But perhaps the project’s most enduring
effect was legal, rather than strategic. For through the DEW Line
construction agreements, Canada obtained explicit and official U.S.
recognition of its sovereign rights over territory in the Far North.51

II. The Process of Contemporary Interaction in the

North American Arctic

A. Oil Exploration and Exploitation and Its By-Products

For present purposes, the period of “exploitation” will emphasize
interaction that has occurred since the development of the Canol Oil
Field of the Mackenzie began in 1942. This time frame was selected
for three reasons: (1) Arctic oil exploration, production and trans-
portation is precisely what triggered the international legal contro-
versy under present consideration; (2) by 1942 Arctic participation
had become clearly defined with the U.S., Canada, and the U.S.S.R.
emerging as the principal actors; and (3)
time and space limitations
preclude a more comprehensive survey.

46Radar in the Far North, (1955) 174 London Economist 716; Roberts, The

Great Assault on the Arctic, (1955) 211 Harpers Mag. 37.

47 Chasen, Distant Early Warning Systems in the North American Arctic,
(1967) 13 Polar Record 595; Koby, DEW Line Airlift, (1955) 28 Can. Aviation
27; Smith, The Use of Polar Ice in Inter-hemispheric Air Operations, (Dis-
sertation No. 1472, Georgetown Univ., 1956).

48 RJ. Sutherland, “The Strategic Significance of the Arctic”, in The Arctic

Frontier (R. St. I. MacDonald, ed., 1970), at p. 265.

49Ibid.
50 Chasen, Distant Early Warning Systems in the North American Arctic,

(1967) 13 Polar Record 595.

Frontier, supra, n. 48, at p. 256.

51 Sutherland, “The Strategic Significance of the Arctic”, in The Arctic

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In addition, further analysis of the process of interaction will be
devoted solely to American and Canadian exploitation activities and
their “by-products”, their relationship to other objectives, the situa-
tions and conditions under which they have taken and take place,
and the various strategies employed by the participants, with the
various outcomes and long-term effects. “Exploitation”, then, is
merely a convenient rubric pointing to the more salient, and perhaps
central activities in the Arctic’s recent history. It of course embraces
many other types of projects (transport, shipping, research, etc.)
that either paralleled, or are ancillary to, specifically exploitation
enterprises.

It may appear objectionable to limit the participants to two
Arctic nations: the U.S. and Canada. But certain reasons make this
action operationally viable. First, though the Arctic process of inter-
action has always included significant numbers of international
actors,52 the paramountcy of national participation remains a fact.13
Second, Arctic national participation is currently, as always, quite
limited in number. And, third, in terms of value position, intensity,
frequency and quality of activities undertaken, and of political and
legal interests possessed in the region (with the Soviet Union as the
sole exception), these actors clearly predominate.

B. Objectives and Base Values

It will be assumed in this article that the central objective of the
aforementioned actors in carrying out Arctic projects is, and has
been, the enhancement or maintenance of their respective base value
positions. These include power, wealth, enlightenment, well-being,
respect, skill, solidarity and rectitude.

(i) Power

One of the more complex intellectual tasks that students of inter-
national law and relations must face is the conceptualization of the
term “power”. In the present context, however, the term will refer

52 Contemporary international actors include the International Commission
for the Northwest Atlantic Fisheries (ICNAF); the International Court of
Justice (ICJ), (Anglo-Norwegian Fisheries Case); the International Geogra-
phical Congress (IGC); the International North Pacific Fisheries Commission;
the International Pacific Halibut Commission; the International Whaling Com-
mission; and many others.

5 The most celebrated challenge to the concept of national pre~minence is
John Herz’s Rise and Demise of the Territorial State, (1957) 9 World Politics
473. His subsequent reaction, “The Territorial State Revisited”, appears in J.
Rosenau, ed., International Politics and Foreign Policy, (1969). See also: Inter-
national Politics in the Atomic Age, (1959).

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

to military activities and capabilities, carried out or established by
these actors, in the Arctic, for purposes of altering favourably their
respective, and joint, coercive or defensive potential vis-h-vis other
actors – or each other. Of special concern will be naval operations
in the Arctic Ocean by their respective armed forces.

In the mid-1800’s, the American Navy began operating in the
Arctic with some frequency.’ World War II, however, served as a
powerful stimulant for the U.S. to improve its seaborne military
capabilities in the region.55 These ships, it was then speculated, would
keep supply lines open to land forces stationed there to avert a Nazi
invasion via the Arctic. Later, in the mid-1950’s, the U.S. Navy was
assigned a large share of responsibility for the success or failure of
the prompt construction and subsequent maintenance of the DEW
Line.5″ The erection of this network of defense installations in the
Arctic demanded that multiple land, sea and air operations be carried
out by the various branches of the U.S. armed forces in a coordinated
fashion.

In the late fifties and early sixties, the U.S. Navy began to explore
the strategic utility of the submarine (including nuclear subs) in the
Arctic. 7 The successful journeys of the Nautilus, Skate, Sargo and
Seadragon provided conclusive evidence of the technological capa-
bility of the American fleet to navigate under the polar ice-cap.58

Conversely, the Arctic activities of the Canadian armed forces
during these same periods reflected the subordinate role of a middle
power caught in the midst of two emerging “superpowers”. Tech-
nologically, Canada remained dependent rather than innovative;

54A historical summary appears in Shelesnyak, The Navy Explores its

Northern Frontiers, (1947) 59 J. Am. Soc. Naval Engineers 471.

5 See American Forces in the Aleutians, (1943) 35 Military Engineer 347;

Navy Arctic Talkie Film, (1950) 42 Military Engineer 218.

50 Leslie Roberts reports that in one summer, “ships were to deliver 50,000

tons of freight into the Eastern Arctic and much more to the Western Area ….
See supra, n. 46, at p. 37; see also: Summer Sealift Races to Supply
DEW-Line Outposts Before Early Arctic Freeze-Up, (1968) 9 F.C.C. News 1;
Blasting a Seaway, (1955) 154 Engineering News Record 68. These operations,
known as “SUNEC” and “Mona Lisa”, continued with increasing magnitude
through the ‘fifties’. See, for example, U.S. Navy Sea Transportation Service,
It’s the Arctic, (1955) 5 Bulletin 4, at p. 20.

57Kittredge, Under the Polar Cap: A Voyage that Must be Made, (1958)
84 U.S. Naval Inst. Proc. 61; Anderson, The Arctic as the Sea Route of the
Future, (1959) 115 Nat’l Geog. Mag. 21.
58Lyon, The Submarine and the Arctic Ocean, (1963) 9 Sea Frontiers 276.
Lyon describes the Submarine Research Facility in San Diego where the geo-
graphic conditions of the Arctic Ocean were replicated for laboratory experi-
mentation purposes.

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[Vol. 19, No. 3

strategically, her thinking was oriented along a “polar” alignment
with the U.S., under whose protective “umbrella” she could find a
secure niche.” Even more significantly, Canada perceived her role
in Arctic, as well as hemispheric, defense, as one complementary
rather than self-assertive in nature. Only in recent years (particularly
since the conflict over Arctic rights of navigation began), has Cana-
da attempted to enhance her independent, coercive/defensive po-
tential in the region. Witness, for instance, the recent statement of
policy made in the report on 1970 Government Activities in the North
by the Advisory Committee on Northern Development:

Department of National Defense… Long-term Plans. The Department of
National Defense anticipates greatly increased military activity and in-
volvement in the North. The types of activity envisaged will cover the
full spectrum from military surveillance flights to national building
projects …60
The statement is followed by a “Review of 1970 Operations” that
covers the categories of “General”, “Maritime Forces”, “Land For-
ces”, “Air Forces” and “Communications”. It closes with a broad
statement of “Plans for 1971”.

In terms of power, then, both as an objective and a base value,
the U.S. has undoubtedly been, and remains, the leader. The strength
and technological capability of her armed forces is overwhelming
when compared to Canada’s. Canada, on the other hand, possesses
the advantage of owning vast expanses of territory in the Arctic,
into which her limited might can be extended. Although, as the afore-
mentioned report indicates, “Current planning does not envisage the
stationing of operational troops in the North,” said troops can
“effectively be stationed at southern bases and moved to the North
when required for a particular operation”.0 ‘ Canada’s forces seem to
present at least a psychological deterrent to unwanted foreign in-
trusions in the region.

These calculations, however, should always be tempered by the
historical context in which they must be examined. Canada and the
U.S. are two nations whose behavioural record in terms of mutual
conflict avoidance and resolution dates back, unbroken, to the
Treaty of Washington of 1871. It thus remains an open question

59 See generally: Melvin Conant, The Long Polar Watch; Canada and the
Defence of North America, (1962); for an example of earlier views, see: G.
Taylor, Canada’s Role in Geopolitics; A Study in Situation and Status, (1942);
see also the periodic literature of the Canadian Institute of International
Affairs, Canada in World Affairs, beginning vol. I, 1941.

60 At pp. 94-96. Hereinafter cited as “Committee on Northern Development”.
61 Ibid., at p. 94.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

whether or not this fine tradition is about to be broken by interna-
tional legal disputes over issues which seem to threaten neither
state’s immediate national security interests.

(ii) Enlightenment

The primacy of enlightenment (here defined as the acquisition
and furtherance of scientifically gathered knowledge) as an objective
in Arctic interaction has seldom been challenged. One must note,
however, that the search has not always reflected a “pure” scientific
spirit. In fact, more often than not, Arctic research projects have
been, and are, pre-requisite to the attainment of other objectives;
they serve, to coin a new version of an old term, as “goal-instrument-
al” objectives. Perfect examples of this kind of “enlightenment” are
the many voluminous geological (stratigraphic, seismological, etc.)
surveys undertaken in the search for the region’s rich oil fields0 2
In the area of knowledge, the cooperative spirit that prevails
between the U.S. and Canada again stands out.6 3 This is perhaps best
reflected in the institutional character that much of the recent
research in the Arctic has acquired under the auspices of The Arctic
Institute of North America (AINA). 64 Founded in Ottawa and New
York in 1945 to sponsor research and to acquire and make available
information about the North, the Institute has since expanded sub-
stantially and continues to supply a channel through which research
projects can be orchestrated to maximize their return/cost ratio.
In addition, AINA, with support from the governments of Canada
and the U.S., has since 1953 published fifteen volumes of The Arctic
tremendously helpful tool includes virtually
Bibliography. This
everything that has ever been printed in connection with the Arctic
irrespective of topic or authorship. Notably, the over-
region –
whelming majority of the Bibliography’s entries deal in some way
with enlightenment –
they report on new or ongoing scientific
findings and studies.

Enlightenment, viewed as a base value, on the other hand, reflects
a disparity between the two neighbors. Without question, the tech-

62See, for example, G. D. Hobson, A Reconnaissance Seismic Refraction
Survey in Hudson Bay, Canada, (1966) 2 Proceedings, 7th World Petroleum
Congress 813; D. H. Oswald, ed., International Symposium on the Devonian
System, 2 vols., (1967).

3Purely national enterprises have also multiplied. A recent example is the
establishment by the U.S. of an Interagency Arctic Research Co-Ordinating
Committee in 1968: (1969) 1 AINA Newsletter 7.

64Information about AINA is readily available through its offices in

Montreal and Washington, D.C.

McGILL LAW JOURNAL

[Vol. 19, No. 3

nological and scientific resources that the U.S. brings into Arctic
interaction have been and are quantitatively and qualitatively supe-
rior to Canada’s. Yet the relative merits of this fact, in terms of legal
analysis, remain somewhat vague unless specifically linked to other
base values, such as power and skill.

(iii) Skill

Above everything else, Arctic activities demand consummate de-
grees of skill by the actors, whether it be for navigation, exploration,
construction, transportation or exploitation purposes. Conversely,
continued exposure to the Arctic environment forces the partici-
pant –
if he at all expects to improve on his performance, to what-
ever it may be related –

to develop new, more refined skills.

(iv) Navigation

The skill to navigate Arctic waters is central to the arguments
over jurisdictional rights.65 Specifically, it refers to the relative
ability and capability of American and Canadian naval personnel and
vessels to successfully traverse these “waters”. Without a serious
potential to do so, claims to control and use of the Northwest Pass-
age will be of little consequence. This crucial question, however, can
be subdivided and expressed in even more specific terms: Can cargo
vessels of the oil-tanker type cross the Northwest Passage? On a
regular basis? If so, is it an economically desirable method for trans-
porting oil? If it is not, what is the probability that the method will
be economically sound? It may be a truism, but it needs restatement:
the possession of skills by an actor does not necessarily translate into
his intent to use them. Nor does it imply, ipso facto, that they are
desirable from an economic standpoint.

The answer to the first question is, obviously, affirmative: the
SS Manhattan crossed the Northwest Passage during the summer of
1969.66 The ship, a modified 150,000-ton displacement, 43,000 s.h.p.
oil tanker, made the voyage in approximately one month, between
August 24 and September 21. The following spring it returned to the
area for further testing under more severe weather conditions.1

6 5 Three main methods of navigating Arctic waters have been developed:
drift surface navigation, sub-surface navigation, and conventional surface
navigation. See Pharand’s informative synthesis in Freedom of the Seas in
the Arctic Ocean, (1969) 19 U. of T.LJ. 210. Because Canada’s claims are issue-
specific, however, we shall focus on oil tanker traffic, one form of conven-
tional surface navigation.

66Arctic Reconnaissance Voyage of S.S. Manhattan, 1969, (1970) 15 Polar

Record 60.

67 Second Arctic Voyage of S.S. Manhattan, 1970, (1970) 15 Polar Record 355.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

Consider, however, the problems of skill encountered during these
two voyages and the cost of structural modifications that had to be
made to the Manhattan:6 8

(1)
(2)

the estimated cost of modifications was $40,000,000;
the ship necessitated two icebreaker escorts during the first
voyage: the Canadian ship, Sir John A. MacDonald, and the American
vessel, Northwind;

(3)

it necessitated one escort for the second voyage: the Cana-

dian vessel Louis St. Laurent;

(4) during the first voyage, the Manhattan unsuccessfully at-
tempted to cross a heavy ice floe blocking the McClure Strait, there-
after requiring the repeated assistance of the Sir John A. MacDonald
for extraction. Eventually, the crossing was made along a more
southerly route, via the Prince of Wales Strait into Prudhoe Bay,
and onward;

(5)

during the second journey, Polar Record reports, “the
tanker became stuck on several occasions. Louis St. Laurent also got
stuck in an ice ridge. Altogether it took two weeks to cover a distance
of only 550 kilometers.” The report goes on to relate how “after
completing tests in fast ice off Bylot Island on May 25, Manhattan
was brought to a standstill by very heavy pack ice. In an attempt to
free the ship, Louis St. Laurent got stuck alongside and was forced
against Manhattan’s side by ice pressure,” both ships suffering
structural damage.

It is perhaps useful to keep in mind that these experimental
voyages were undertaken during the warmer summer and spring
seasons, and yet were far from trouble-free enterprises. In fact, “the
period during which transportation is possible generally does not
exceed three or four months, due to the limits imposed by the
opening and closing of the pack ice”.6 9 Given the present “state-of-
the-art”, then, the second question may be answered negatively.70

68 All facts summarized below are derived from the accounts quoted in the
two preceding footnotes. These are, in turn, summaries of news releases of
the Humble Oil and Refining Co., lessors of the S.S. Manhattan. and from
stories that appeared in the New York Times of 26 October and 9 and 12
November, 1969.

69Sherman, The Economics of Shipping. in Polar Seas, (1969)

14 Polar
Record 481; cf. Lassiter and Devanney, The Economics of Arctic Oil Trans-
portation, M.I.T. Sea Grant Report, No. MITSG 71-4, (1970).

7o Pharand, Freedom of the Seas in the Arctic Ocean, (1969) 19 U. of T.LJ.
210, at p. 225, discusses some farfetched schemes to make the Arctic Basin
navigable by raising the temperature of its waters. Others have suggested the
submarine tanker as a more economical means of transport: Robertson,

McGILL LAW JOURNAL

[Vol. 19, No. 3

Turning to economic issues, one must consider a variety of fac-
tors, including the need to construct new fleets of reinforced tanker
vessels, or the adaptation of existing tankers, & la Manhattan, at
considerable cost; the ratio between cargo, carrying capacity and
icebreaking capability; 71 the comparative estimates of shipping costs
by sea as opposed to pipelines; insurance costs; the cost of support-
ing vessels (such as the Northwind, et al.); the cost of maintaining
the tankers and the supporting icebreaker, etc.

We cannot pretend to establish the outcome of such a complex
calculus in this article. It should be noted, however, that, generally,
an optimistic consensus about the prospects for general shipping
(as opposed to cargo-specific, i.e., oil-shipping) in the Arctic, exists.72
Finding out whether or not these prognostications are correct will
ultimately require the acid test of experience. In the interim, all that
the legal analyst can do is suggest that many questions about trans-
Arctic navigational “skills” remain unanswered.Y3

(v) Wealth

The category of wealth as a base value translates into the ques-
the U.S. or Canada – has brought, brings and
tion of which actor –
can bring a greater reservoir of wealth to bear on Arctic interaction.
The answer, again, must favour the economic might of the United
States.

More relevant to the present discussion, however, is to view
wealth as an objective sought by these two actors in the Arctic.

Record 481.

Transport by Submarine in Arctic Waters, (1966) 13 North 5; cf. Johansson, Oy
Wartsila Ab, Polar Shipbuilders, (1972) 16 Polar Record 29.

71Sherman, The Economics of Shipping in Polar Seas, (1969) 14 Polar
72 Sherman concludes by stating that, “It is reasonably certain that the
polar regions will witness even greater activities as nations … develop their
natural resources…,” and, moreover, that, “…
transportation will be by
surface cargo vessels, … “: ibid., at p. 486. Similarly, Johannson predicts that,
“Ice navigation will increase rapidly… and that it is likely that the traffic
will be carried by ice-strengthened surface ships assisted occasionally by ice
breakers…”: Johannson, Oy Wartsila, Polar Shipbuilders, (1972) 16 Polar
Record 29.

7317or further information about ships and shipping, see: U.S. Navy, Bureau
of Ships, Operation and Care of Ships in the Arctic, (1958) 6 J. U.S. Bureau of
Ships 15; Vance, Model Testing in Ice, (1968) J. Soc. Naval Engineers 259;
De-Icing Apparatus for Ships, (1970) 15 Polar Record 343; Milne, A Small
Research Submarine in the Arctic, (1969) 22 Arctic 69; E. A. MacDonald, Polar
Operations, (1969); Peschansky, Breaking the Russian Ice, (1969)
13 New
Scientist 574; B. F. Slater, ed., Arctic and Middle North Transportation,
(1969).

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

Specifically, the concern is with the potential of the Arctic region
(particularly the North American sector) for petroleum production.
Such a discussion, however, should not be circumscribed to merely
determining the physical presence of oil and gas in Arctic substrata.
The question of availability and exploitability is becoming an increas-
ingly settled fact, both in Alaska and Canada, and in their respective
continental shelves and adjacent ocean floors. 74 The potential for
production is not, therefore, a function of incidence alone; rather,
it is primarily dependent on the resolution of questions of politics
and economics.

Because of their complex interrelationships, a clear demarcation
separating these two kinds of factors is a practical impossibility. Yet,
for purposes of analysis, it is useful to classify and enumerate them
briefly. As regards political factors, consider, for instance, the plight
of the oil industry executive. The following statement, quoted in a
recent editorial, illustrates the point:

It’s the uncertainties that are killing us. We put variables into calculations
for every project. We try to anticipate the political and economic changes
that might occur. But nowadays, we really never know for sure whether
a project will be a winner. Conditions can change so drastically within a
few months – by the time money is invested and the work done, a venture
that looked good on paper can suddenly become a loser.75
It is indeed a “crazy, mixed-up game, when the rules keep chang-
ing”. When, how and by whom these rules shall be made or changed
are the issues making up the political context in which calculations
of potential must be made.

Moreover, it is a context of conflict, in whose vortex numerous
opposed interests are pitted against each other in different ways:
environmentalists are cast against (presumably indifferent) indus-
trialists; two democratic regimes are faced with conflicting claims
from both public and private sectors; these two regimes also contend
with each other as international political actors, and they must
separately contend with other powerful participants (e.g., U.S.S.R.,
Japan) and their inputs into the Arctic process of interaction. In
short, it is a climate fraught with “uncertainties”.

Some of the prominent areas of economic uncertainty have al-
ready been mentioned. To these, however, must be added more
esoteric issues concerning world and regional price fluctuations,

74 The “latest word on the oil industry’s activities north of the Arctic Circle”
appears in a series of articles under the general heading of Arctic Report,
(1972) 70 Oil and Gas 1. 67, 69, 78, 92.

75Its a Crazy, Mixed-Up Game, When the Rules Keep Changing, editorial.

(1972) 70 Oil and Gas 1. 15.

McGILL LAW JOURNAL

[Vol. 19, No. 3

supply of, and demand for, oil, the moods of potential investors and
the public, tariff barriers, export control regulations, and many
others. Just how intimately these economic factors are tied to ques-
tions of policy can be illustrated by a recent statement concerning
the American-Canadian standoff:

American diplomats also complain that Canadian authorities show little
response to proposals for negotiations, and both seem content to let the
problem fester. In the meantime, resentment among Canadians grows
against American financial dominance of their industry, and Americans
fret at the prospect of energy shortageYO
In conclusion, the wealth objective, as far as Arctic oil goes,
depends for its successful attainment on the propitious coincidence
of factors of physical availability and accessibility; international
(world and regional) and domestic, political, and economic climates;
plus a host of other unpredictable variables (a disastrous oil spill,
for instance) that may discourage the consuming public and their
governments from continuing their respective pursuits of this goal.

(vi) Well-being

The category of national well-being can be defined broadly to
include the social, political and physical welfare of a people. As a
base value it is more instructive to focus on the first two, for these
are the factors that condition, a priori, a government’s range of
policies in international interactions. Conversely, physical welfare is
an objective of considerable importance whenever issues of ecology
are raised. To what extent socio-political “well-being” may be consi-
dered an asset or a detriment in Canadian-American Arctic interac-
tion is, to some degree, a question of judgment. Taken in this sense,
the concept of national well-being is broad enough to accommodate
a number of interrelated variables affecting intangibles, such as a
people’s sense of cohesiveness, its sense of public efficacy in the
domestic political processes, and its actual degree of satisfaction
against demands placed on decision-making bodies.

From this perspective, one might posit that America has suffered
a great deal during the decade of the sixties. It has been a trying
time, one during which, as R. Scammon and B. Wattenberg persuas-
ively demonstrate, the average citizen has acquired a feeling of un-
specific “malaise”. 77 It has not been, in other words, an era of
“good feeling” for the nation.

76 It’s Time to Try Opening Diplomatic Doors in Ottawa, editorial, (1972)

72 Oil and Gas J. 27.

77 R. Scammon and B. Wattenberg, The Real Majority, (1970).

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

Similar problems have also plagued Canada, though not perhaps
to the same extent. These include the separatist movement of certain
groups in Canadian society, the role of government in Canadian
society, the realization by most Canadians that their economy is
singularly controlled by U.S. firms, and the frustrating effect of
seeing Canada’s identity become blurred by the adoption of en-
croaching American cultural values.78 One is nevertheless tempted
to suggest that, all other things being equal, Canada’s exemption
from fighting a Vietnam-type war during this same period has left
her in a better base-value position than the U.S. is today, where
national well-being is involved.

Well-being as an objective can be most effectively related to the
satisfactory maintenance of the Arctic region’s delicate ecological
balance. Both nations share interests and responsibility in this
respect since both own large, populated territories that lie within
the Arctic Circle. Canada’s stake, however, is much more direct and
of a greater magnitude. First, its claimed sovereign possessions in-
clude the islands of the Arctic Archipelago and a vast crescent of
contiguous Arctic lands. In contradistinction, Alaska’s territory in
the Arctic is almost exclusively contiguous, with no island system
adjacent to its shores. Second, Canada’s northern river systems drain
into the Arctic Ocean, exposing a substantial portion of mainland
Canada, and its inhabitants, to the consequences of man’s activities
in the Arctic.

This sense of immediacy cannot be perceived by the American
public, for the entire state of Alaska is substantially removed from
the U.S. mainland. If oil should spill into the Arctic Ocean off Alaska,
only Alaskans feel the effects; if the same event occurs, say, in the
McClure Strait, the well-being of a broader spectrum of Canadian
society is likely to be sacrificed.

Developing the Arctic oil fields, however, does not just mean in-
creasing the probability that an oil spill will blacken some part of
the Arctic Ocean and its shores. It also represents an inflow of peo-
ple and equipment, and the development of new roads, housing facil-
ities, airports and other conveniences of modern life. It could mean,
in other words, the systematic and permanent alteration of much of
the region’s natural environment7

78For a comprehensive empirical analysis, see: M. A. Schwartz, Public

Opinion and Identity, (1967).

70 See: Lammers, A Letter from the Yukon, (1970) 84 Can. Naturalist 67;
13 Animals 64;

Sage, The Black Gold Rush and Alaska’s Wildlife, (1970)
Johnson, Arctic Plants, Ecosystems and Strategies, (1969) 22 Arctic 241.

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[Vol. 19, No. 3

Evidently, both nations must confront equally serious decisions
concerning the future of their respective Arctic sectors; on that they
seem to agree so far. “Who gets what” is a settled matter; it is
“when and how” that remains to be decided, and it is in the making
of these decisions that the objective of physical well-being becomes
an issue of prominence. 0

(vii) Respect and Rectitude

Combining these value/objective categories enables one to exa-
mine two closely-related analytical concepts. Broadly speaking, res-
pect has to do with the “prestige” or “status” that a nation com-
mands in the international system. Rectitude refers to a nation’s
perception of its own behavior in moral terms, and to a similar
evaluation of its behavior by other nations in the system.

As a base value, Canada and the U.S. bring into Arctic interaction
qualitatively different respect assets by virtue of their disparity in
power and other base value positions.

As previously noted, the U.S. has enjoyed unquestionable suprem-
acy in terms of coercive/defensive capabilities, reservoir of wealth
available, etc., since the conclusion of World War II. This supremacy
has placed the U.S. at the top of the international ranking order in
terms of status or prestige. So much so that, together with the
U.S.S.R., it has acquired the sobriquet of “superpower”. In contrast,
Canada’s projected international image is “… of a nation which,
while it is able to enjoy the economic and social development achiev-

8o The dangers of oil pollution in Arctic waters must be evaluated against
the technological feasibility of controlling, preventing or cleaning up spills.
Though no final solutions to these problems have been, or are likely to be,
discovered, some progress is being made. See generally: Battelle Memorial
Institute, Oil Spillage Literature Search and Critical Evaluation for Selection
of Promising Techniques to Control and Prevent Damage, U.S. Coast Guard AD
666289, (1967); 1. Glaeser and G. Vance, A Study of the Behavior of Oil Spills
in the Arctic, U.S. Coast Guard, Office of Research and Development, (1971);
G. A. Gilmore, et al., Systems Study of Oil Spill Cleanup Procedures, (1970);
Estes and Golomb, Oil Spills: Method for Measuring Their Extent on the Sea
Surface, (1970) 169 Science 676; T. Olson and F. Burgess, ed., Conference on
the Status of Knowledge, (Galveston, 1966), “Critical Research Needs and
Potential Research Facilities to Ecology and Pollution Problems in the Marine
Environment”, Pollution and Marine Ecology: Proceedings, (1967); T.E. Yee,
comp., Oil Pollution of Marine Waters, (U.S. Dep’t Interior Library, Biblio-
graphy no. 5, 1967; The Battle Against Oil Pollution: New Method of Cleaning
Up Ocean Spills, (1970) 50 Dock and Harbour Authority 494; U.S. Congress,
Senate, Committee on Commerce, International Conference on Ocean Pollution,
(1972); Miller, Ecological Balance in Semi-enclosed Seas, (1972) 2 Environ-
mental Affairs 191.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

ed by the U.S., is at the same time free from both the guilt Ameri-
cans experience as a consequence of their international power and
the arrogance they can assume as the bearers of an idealized way of
life.””‘

Both of these nations thus appear to enjoy a relatively high
respect value-position. Nevertheless, the quality of the respect they
command, and the methods by which they have sought it, differ.

Canada’s recent assertions concerning the legal status of the
Northwest Passage, however, have signalled a significant change of
policy. That is, her Government has made it patently clear that they
expect their claims to jurisdiction over Arctic waters to be fully res-
pected.82 To underline the seriousness of these expectations, the
Government has withdrawn its acceptance of compulsory jurisdic-
tion of the International Court of Justice at the same time that it
announced the new claims.8 This action amounts to an assumption
of broad responsibility by Canada for the resolution, management
and/or avoidance of conflict in the region in question. In this con-
nection, it is useful also to recall the remarks quoted above concern-
ing the Government’s forecast of military activities in the Arctic.”

To be sure, America’s reaction to Canada’s metamorphosis has
been one of sharp criticism. 5 But, from a respect standpoint, it has
been comparatively mild. No rockets have been “rattled”; no oil
tankers have been sent under military escort as a show of force; no
ultimatum has been issued; in short, the U.S. and Canada appear to
have, paradoxically, exchanged roles in terms of traditional methods
of obtaining and maintaining international respect.

This exchange is troublesome because it appears to be inconsis-
tent with Canada’s rectitude base value position in relation to that
of the U.S. As we noted in the preceding remarks, Canada has tra-
ditionally projected an image of righteousness through the means it
has employed in approaching international problems. The U.S., of
course, has also sought to project an image of moral correctness, but

81 P. Russell, ed., Nationalism in Canada, (1966), at p. 374; see also: G.

Clark, Canada: The Uneasy Neighbor, (1965), particularly at p. 6.

82 E.g., the remarks of Prime Minister Trudeau after addressing the House
of Commons, 8 April 1970, concerning the claims in question. Text provided
by the Canadian Embassy, Washington, D.C. Hereinafter cited as “Trudeau
Press Conference”.

8 3 Canadian Declaration Concerning the Compulsory Jurisdiction of the Inter-
national Court of Justice, U.N. Communication Cn. 53, 1970; treaty No. 3 of
21 April 1970.

84 See: Committee on Northern Development, supra, n. 60.
85 See: U.S. Statement on Canada’s Proposed Legislation (U.S. Dep’t of

State, Press Release 121, 1970). (Hereinafter cited as “U.S. Statement”.)

McGILL LAW JOURNAL

[Vol. 19, No. 3

has been notably less successful in doing so than Canada – particu-
larly during the past decade. Still, the present dispute reveals a con-
tinuing interest by Canada in moral self-assertion.

Both nations have justified their positions along lines of argument
that combine moral (rectitude) objectives with more practical issues
of their respective concern. For example, Canada in part argues it
is right and proper to obey international law; but she also argues
that if no existing body of law can cope with dangers of oil pollution
in the Arctic, it is only right that Canada, herself, act.86 Similarly, the
U.S. argument is couched in moral terms, i.e., adherence to and use
of international legal channels for the resolution of this kind of
problem;8 7 and in practical considerations, such as the likelihood
that “merchant shipping would be severely restricted.. .-.88 In effect,
Canada and the U.S., if not seeking to increase, are at least endea-
vouring to maintain, their individual rectitude value-positions in the
international arena through their behaviour in the Arctic process of
interaction.

C. Basic Designs

(i) Solidarity

The objective of solidarity is present in both the Canadian and
U.S. policy pronouncements about the process of interaction in the
Arctic. Both states seem to seek the development of group attach-
ments which emphasize “the oceans as a means of promoting
broader identifications of peoples by providing a focus for organi-
zation of transnational loyalties and common sentiments”., 9 Canada
repeatedly invokes the common purpose of all nations, but most
particularly of all coastal nations, in protecting the ocean environ-
ment and their own territories from pollution. Critics of Canada’s
Arctic policies are obliged to admit that this is a most potent appeal.
The United States, for its part, asserts the need for the solidarity
of all mankind in dealing with the oceans in a comprehensive, system-
atic, collective fashion. Unfortunately for the U.S. position, it tends
to take an abstract form reminiscent of the “International Common
Good of the Social Thought” of the Catholic Church. Intellectually
and morally it is admirable and, as a high level of abstraction, self-

86See: Trudeau Press Conference, infra, n. 110; also, see his remarks

before the House of Commons, 24 October 1969.

87 U.S. Statement, infra, n. 111.
88 Ibid.
89 M. McDougal and W. Burke, supra, n. 8.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

evidentf 0 Still, this principled call for community action on com-
munity problems may not carry the weight of the more immediately
practical call of Canada for a halt to ocean pollution.

(ii) Situations

Geographically, the most notable general physical characteristic
of the Arctic Ocean is its small size: it is “the smallest of the world’s
1 Secondly, “The ocean has a very wide and almost contin-
oceans” .
uous continental shelf which protrudes above the surface of the
water to form… the … islands of the … Canadian Arctic.”’92
Third, about two-thirds of the Arctic Ocean is covered by drifting
pack ice, all-year-round. 93 Lastly, many parts of its waters are high-
yield fishing and hunting grounds for whales, cod, walrus and seals. 4
What, then, are the more salient implications deriving from these
situational facts? One which we have already noted is that of the
ocean’s inaccessibility to movement and navigation on a large-scale
basis. Great barriers do indeed obstruct communication and trans-
portation here, rendering the generalization that “… where one
ship has just been, another can soon come…” false.95

A second implication affects the distal relationships of interaction
in the Arctic Ocean to land masses . 6 The short navigational season
in the Northwest Passage, the necessity of using southern sea-lanes
(as evidenced by The Manhattan’s first crossing), and the tight geo-
graphic configuration of the Arctic Archipelago, together point to a
clear fact: whatever happens in those waters as a result of oil-tanker

90 E.g.: J. Epstein, Code of International Ethics, (1953), at pp. 48-54; H.
Rommen, The State in Catholic Thought, (1945), at pp. 615-27; Pope John
XXIII, Pacem in Terris, especially “Order in Human Beings”, (1963), ss. 5-7;
Vatican II, Pastoral Constitution of the Church in the Modern World, (1966),
ch. 5.

91 “Arctic Ocean”, 1 Encyclopedia Canadiana, (1957), at p. 203.
92 Ibid.
93 Ibid.
04 Ibid. For a thorough description of the Arctic Ocean see: Pharand,
Freedom of the Seas in the Arctic, (1969) 19 U. of T.LJ. 214; also, 1 Encyclo-
pedia of Oceanography, (1966) at pp. 49-53; Hunkins et al., The Floor of the
Arctic Ocean in Photographs, (1970) 23 Arctic 175; and Kinney et al., Chemical
Characteristics of Water Masses in the American Basin of the Arctic Ocean,
(1970) 75 J. Geophysical Research, Oceans, and Atmosphere 4097.

95 M. McDougal and W. Burke, supra, n. 8, at p. 20.
96 These and other relationships are discussed in detail in G. H. T. Kimble
and D. Good, eds., Geography of the Northlands (1955). For a purely geogra-
phical/geological study of the land masses see J. J. Arens et al., Canadian
North, (prepared for the Technical Assistant to CNO for Polar Projects),
OP-3A3/OPNAV P034, (1956).

McGILL LAW JOURNAL

[Vol. 19, No. 3

traffic is likely to affect adjacent land masses. Arctic coastal states
thus face a concentration of direct interests in controlling and shap-
ing further relevant interaction. This concentration of interests is
probably the most significant situational factor in the Arctic Ocean’s
process of interaction.

Geographic constraints also increase the need for developing
patterns of cooperation in carrying out frequent crossings of the
Passage. Ships in this region normally require icebreaker escorts:
Can U.S. vessels cross without Canadian assistance? The answer,
though probably affirmative, is outweighed by other considerations.
Sailing under Arctic conditions is a dangerous business and accidents
can be expected to eventually happen. Need Canada render assist-
ance to stricken U.S. vessels? To a tanker that has (hypothetically)
spewed oil into her territorial waters? Many other pertinent queries
come to mind. It is sufficient to indicate, however, that the systematic
development of Northwest Passage sea-lanes will, at best, be difficult
without increased cooperation among participants; at worst, disas-
trous.

A final note on situational factors concerns the relative levels of
expectations of violence in the North American Arctic’s process of
interaction. Historically, these have been low at the intra level. That
is, in the past Canada and the U.S. have twice allied to jointly oppose
external security threats (presented, first by the Nazis, then by
Russia). Canada’s and America’s Arctic sectors have, of course, been
valuable strategic assets on both occasions. A complete reversal of
this tradition of local harmony is, therefore, difficult, though not im-
possible, to visualize. As evidenced by the Peruvian/Ecuadorian-U.S.
scrimmages, the potential for conflict among competing internation-
al actors is always a possibility.

(iii) Strategies

These situational characteristics of the North American Arctic
have also limited the range of choice with respect to the strategies
employed by the participants in pursuit of their objectives. McDougal
and Burke have pointed out the possibilities for “non-competitive”,
rather than competitive, strategies in the ocean environments in the
sense that “the activity of one participant does not preclude that of
another”.9T However, the spatial arrangement of land and water
masses in this region precludes the application of many “non-
competitive” strategies. As previously indicated, tanker traffic in the
Northwest Passage has so far been limited to southern crossings close

97 M. McDougal and W. Burke, supra, n. 8, at p. 25.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

to the Canadian and U.S. mainlands. Even if technological break-
throughs in ship design and engineering should “open up” the more
northerly McClure Strait, the relationship of navigation to land
masses will remain close. All of the waters in question are either
territorial waters or contiguous zone waters surrounded by Cana-
dian territory. They are, moreover, notoriously hazardous to naviga-
tion. Thus, the freedom of participants to go their own way which
has often characterized use of the oceans in other times and places
and which appears to have made possible non-competitive strate-
–
gies of ocean use –
is not to be found in the North American Arctic.
Since Canada and the United States pursue objectives in this area
that place them in competition, the spectrum of means of persuasion
and/or coercion (the diplomatic, ideological, economic and military
instruments of foreign policy) may become relevant.9
It may be
assumed with confidence that neither the ideological (broadly, psy-
chological) nor military instruments of coercion would be employed
by either Canada or the United States against the other. But the
diplomatic instrument has already been used forcibly by both parties,
and it is conceivable that some forms of economic coercion may be
put into effect.

The diplomatic instrument includes appeals to legal arguments
and efforts to involve international organizations. It also involves
traditional behind-the-scenes political manoeuvers as well as more
overt negotiations. Since both Canada and the United States have
sought to enhance their record and reputation as supporters of inter-
national law and organization, these diplomatic methods of persua-
sion and coercion take on a considerable force and cutting edge.
Unlike other controversies involving heterogeneous participants from
diverse ideological-political segments of the international system, the
Canadian-U.S. controversies over the Arctic join adversaries from the
same background, who speak the same political as well as normative
language, employ similar methods in international politics, and are
more vulnerable to the skilful use of the diplomatic instrument than
would be the case if they were proponents of quite different view-
points, such as those of the Communist or Third-World states.

To be sure, Canada has sought in its diplomatic counter-offensive
to the United States’ protests of April 1970 to distinguish herself as
a middle power (very peaceful, concerned with environmental pro-
tection), thus in contrast to the U.S. as a great power, embroiled in
wars, nuclear tests, and wide-ranging security measures, and con-
cerned far more with maritime and “big business” interests than

98 Ibid.; see M. McDougal and F. Feliciano, supra, n. 8, at pp. 27-33.

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[Vol. 19, No. 3

with environmental protection. 9 However, regardless of the elements
of truth in this characterization, it is not the case that the U.S. and
Canada stand in the relationship of a developed as against a develop-
ing, Third-World nation.

If the diplomatic instrument is already in use and of seemingly
paramount importance as regards the interaction of Canada and the
U.S. in the Arctic, the latent possibilities of the economic instrument
of foreign policy are great for both parties. Private interests are
merged with public interests on both sides. Private interests are also
eminently dependent upon the exercise of public functions. Legal
permission to extract and ship oil, gas and other minerals by land
and sea depends upon the public policies of the two nations. Prac-
tically speaking, it is unlikely that private concerns can operate in
this area without the cooperation and support of the two govern-
ments. Discriminatory treatment with profound economic conse-
quences is within the power of each government. 100 More broadly,
the close interrelation of the economies of the two countries is well
known. A great variety of economic inducements and sanctions may
be employed by Canada and the United States in support of their
objectives in the Arctic.’ 01

Finally, as will be noted with respect to claims to enforce Cana-
da’s prescriptions for the Arctic waters, the simple withholding of
innumerable aids to navigation and survival in the area is an avail-
able form of coercion that appears too novel to include in the tradi-
tional category of the military instrument. 10 2

99 Supra, at pp. 345-46.
‘o Supra, at p. 342.
10- On U.S. – Canadian economic interdependence generally, see: “U.S. –

Canadian Economic Committee Meets at Ottawa; Statement by Secretary
Rogers and Text of Joint Communique”, (1970) 63 Dep’t. of State Bull. 730-732;
“United States and Canada; Good Neighbors, But –
Interview with Pierre
Elliott Trudeau, Prime Minister of Canada”, 73 U.S. News and World Report
32-35 (July 3, 1972); “The International Implications of the Energy Situation:
Statement by Under Secretary John N. Irwin II”, (1972) 66 Dep’t. of State
Bull. 626-631; A.W. Cockerill, “Canada: A U.S. Economic Colony?”. (1972) 136
Current 47-52.

With respect to dependence on fuel resources, see: L. Waverman, National
Policy and Natural Gas: The Costs of a Border, (1972) 5 Can. J. Econ. 331.
Waverman “… attempts to measure the increase in marginal transportation
costs paid by final consumers because of the inefficient flow pattern created
by restrictions of trade in natural gas”: Ibid., at pp. 331-332. He also reminds
us that between one-fifth and one-third of gas reserves are found associated
with oil: Ibid., at p. 331.

102 1nfra, Part two, Volume 19, number 4 of the Journal.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

(iv) Outcomes

The success of the two main participants, Canada and the United
States, in pursuing their objectives in the Arctic will be judged par-
ticularly with respect to the enhancement and sharing of the func-
tions of communication, fishing, appropriation of oil and gas, and
military security. Successes in these matters will be balanced against
the short-term effects of these functions on the Arctic ecology.

In analyzing the claims and counterclaims of the Arctic partici-
pants, much will turn on these outcomes. As will be seen, the key
concept of reasonableness depends in part on the actual mutual
impact that pursuit of these competing objectives produces. 10 3 Since
we are, at this writing, at the threshold of a period when Arctic
interaction may be increasing markedly and wherein the influence
of Canada’s environmental policies are just beginning to be felt, it is
too early to do more than speculate on the form these outcomes
will take.

(v) Effects

It is likewise premature to do more than indicate that the long-
term effects of the Canadian-U.S. interaction in the Arctic must
ultimately be judged in terms of their consequences for partici-
pants and values beyond these two states and their values. All of
the objectives of Canada and the United States mentioned above are
likewise objectives of other states, groups of states, and of the total
world community. Enhancement or diminution of the capability of
traversing the region, of conserving/appropriating and distributing
its wealth, of using it for the well-being, enlightenment, skill, and
security of other participants in the world power process, are all ef-
fects that figure into the calculation whereby mature judgments will
be made about the policies pursued in the Arctic. The expectations
of all states will result from these judgments. More lasting judgments
affecting respect, solidarity and rectitude will likewise derive from
the effects perceived to have resulted from the contemporary process
of interaction in the North American Arctic.

(vi) Conditions

All of the foregoing calculations must be made in the light of
present and existing conditions in the world power process. Three
principal aspects of this process warrant emphasis:

(1)

the structure and dynamics of the world power arena;

lo3 Infra, Part two, Volume 19, number 4 of the Journal.

McGILL LAW JOURNAL

[Vol. 19, No. 3

the state of relevant science and technology;
patterns and degrees of interdependence.

(2)
(3)
Obviously, these three aspects of world politics may be viewed
primarily in terms of the most immediately relevant developments,
i.e., power relations involving the U.S., Canada, and U.S.S.R. as
Arctic powers; science and technology pertinent to the oceans and
to Arctic environments; and perceptions of interdependence with
respect to the North American Arctic and neighboring areas. But the
concentric circles of relevant conditions spread out endlessly. Power
changes in Southeast Asia may alter power relationships in the
Arctic. Scientific and technological successes or failures in entirely
different parts of the world may affect priorities for exploitation of
the resources of the Arctic. Patterns and degrees of interdependence
in other places with respect to other important subjects may add or
subtract from the propensity to recognize and act in accordance
with shared interests in Arctic waters.

The structure of the world power process is manifestly chang-
ing. The number and identity of “Great Powers” is in flux. 04 Alliances
and rivalries are so much in disarray that the greatest fear of a major
war is caused by the former partners of the “Sino-Soviet Bloc”. After
a decade of at least pro forma concern for smaller nations and the
Third World, there is a discernible trend toward cooperation among
the strong nations on practical questions of mutual interest and a
lessening of efforts to erase the Rich Nations/Poor Nations dicho-
tomy by directoand often competitive action. 10 5 These changes will
affect the process of interaction in all aspects of the use and protec-
tion of the oceans. It will probably reinforce what is already a rather
narrow participation in the process of interaction in the Arctic.

Developments in science and technology will continue to change
the state of navigation and communication, appropriation of the
living resources of the sea, exploitation of oil, gas and other fuel
resources, and such security questions as the role of submarine
launched missiles in deterrent systems.1 6

104See generally: Brzezinski, The Balance of Power Delusion, Foreign Policy,
summer 1972, at p. 54; Hoffman, Will the Balance Balance at Home?, Foreign
Policy, summer 1972, at p. 60; Hoffman, Weighing the Balance of Power, (1972)
50 Foreign Affairs 618; Buchan, A World Restored?, (1972) 50 Foreign Affairs
644.

105 See Friedheim, The “Satisfied” and “Dissatisfied” States Negotiate Inter-

national Law: A Case Study, (1965) 18 World Politics 32.

106 E.g., Burke, “Law and the New Technologies” in The Law of the Sea,
(Alexander, ed., 1967) at pp. 204-27; Burke, “Ocean Sciences, Technology and
the Future International Law of the Sea”, in The Future of International Law

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

Crises in the supplies of fish and fuel will produce awareness of
interdependence and the need for cooperative measures to assure
continued production and distribution. But many of the same nations
whose awareness is heightened with respect to these needs will at
the same time become increasingly fearful of the ravages of pollu-
tion caused by uncontrolled use of the oceans. It will be in the dyna-
mic interplay of such changing conditions that short-term outcomes
and long-term effects of the process of interaction in the North
American Arctic will be evaluated.

III. The Process Of Claims
A. Preliminary Comments

In the three years following passage of the Canadian Pollution
Prevention Act of 1970, a substantial literature has dealt with the
controversies to which it has given rise. These controversies con-
cern the United States and Canada. There appears to be little
available literature on the reactions of other states. What is
interesting about these controversies has been their primarily
theoretical and speculative nature. Little has actually happened
in the North American Arctic to give substance to the claims,
counterclaims, apprehensions and predictions of the public offi-
cials and publicists concernedl 7

Notwithstanding the real interests at stake, the focus of con-
cern has been on the broad implications of the Canadian initiatives
and the U.S. response rather than on any immediate practical
jand
consequences of the interaction and exchanges of claims
counterclaims by the two parties. No major threat to the Arctic
environment has been forthcoming over these two years and no
U.S. or other foreign activity has been interfered with by Canada,
full implementation of Canada’s regime having only become le-
gally possible in August, 1972.108 For the moment the debate is
over principles and process.

Canada and the United States both claim that the issues at
stake transcend the merits of Canadian conservation and anti-pol-
lution measures. Understandably, the emphasis on the transcendent
dimensions of the dispute is greater in the views of the U.S.
Government and American publicists than it is in those of the

of the Sea?, vol. 2, Wealth and Resources, (R. Falk and C. Black, ed., 1970), at
pp. 183-264.

107See bibliography, supra, n. 6.
108 See supra, n. 5.

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[Vol. 19, No. 3

Canadian Government and its scholarly defenders. Nevertheless,
Canada and the United States agree that the issues are universal,
not particularistic. Over and above its justifications for instituting
the new anti-pollution regime in the Arctic, Canada claims that it
is setting a good and badly needed precedent as a contribution to
the development of the international law of the sea. The United
States professes broad sympathy with Canada’s objectives but
insists that Canada must not be permitted to set bad precedents
which, the U.S. claims, violate present international law and divert
development of the law into undesirable directions.

Given this emphasis in the current debate on the principles and
process of the public order of the oceans, it is important to under-
stand the nature of the claims and counterclaims. Unfortunately,
this is not easy. Official and other authoritative Canadian exposi-
tions of Canada’s claims are unclear as to the exclusive rights
claimed. Apparently this lack of clarity is in part calculated and,
indeed, necessitated by nationalistic domestic pressures. Moreover,
the nature of the situations and functions covered by the Canadian
claims is such that claims falling short of sovereign exclusivity
may amount to assertions of exclusive competence with respect
to all practical issues in the North American Arctic. Thus, a claim
to exclusive competence to prescribe for and to apply authority
relative to all known important functions and activities in the
Arctic Archipelago amounts to a claim to exclusive jurisdiction,
even if the words of the claim do not. As will be seen, the inter-
nationalist influences on the Canadian claims have produced as-
surances that sovereign exclusivity is not sought except in the
expanded territorial sea. But nationalist influences have elicited
suggestions that assertion of clear, total, exclusive competence is
the logical culmination of the process of claims initiated by Canada.

(i) The Claimants

Reactions to Canada’s claims may be expected from parties
with immediate interests in the North American Arctic and in-
terests in Arctic areas generally. Beyond that, almost any nation
may find occasion to support or oppose Canada’s Arctic initiative
because of its serious implications for the public order of the
oceans. Presently, however, the process of claims –
as reflected
in materials available to the authors –
is confined entirely to
Canada and the United States. Because of their obvious interests
and their leading roles in community efforts to develop the public
law of the oceans, Canadian-U.S. claims and counterclaims may be

1973]

LAW OF THE SEA IN THE “CANADIAN” ARCTIC

expected to dominate if not monopolize the total process of claims
relative to this subject.

It would obviously be desirable to interject the reactions of
the Soviet Union, United Kingdom, Denmark, and other states with
very important interests in the area. At this stage of research, the
authors do not have sufficient evidence of the views of these na-
inter-
tions to broaden the analysis beyond the Canadian-U.S.
actions.

(ii) Objectives

Canada’s objectives appear to be three-fold:
(1) development of the natural resources of the Arctic area
in the interests of “international trade and commerce”, and “the
economy of Canada in particular”.

(2) protection of the “Canadian Arctic”, in fulfillment of Cana-
da’s obligations for “the welfare of the Eskimo and other inhabit-
ants of the Canadian Arctic and the preservation of the peculiar
ecological balance that now exists in the water, ice, and land areas
of the Canadian Arctic”. 10 9

(3) development through enlightened, unilateral measures of
adequate international law, “where no law exists, or where law
is clearly insufficient… to preserve this area until the interna-
tional law develops”.”

The objectives of the United States coincide substantially with
those of Canada on the first two objectives. Thus, the United States
agrees on:

(1) development of the Arctic as a “region important to all
nations in its unique environment, its increasing significance as
a world trade route, and as a source of natural resources”.

(2) protection of the “Arctic region”, in view of its “peculiar
ecological nature” and “the potential dangers of oil pollution in
that area”.”

10 Pollution Prevention Act, Preamble.
110 Canadian Embassy, Washington, D.C., Transcript of Prime Minister Tru-
deau’s remarks to the press following the introduction of legislation on Arctic
pollution, the territorial sea and fishing zones, in the Canadian House of
Commons on April 8, 1970, at p. 2 (Hereinafter cited as “Trudeau Press
Conference”).
11′ U.S. Department of State, Statement of April 15, 1970, “Arctic Sovereignty”,
reproduced as U.S. Opposes Unilateral Extension by Canada of High Seas
lurisdiction, 62 Dep’t. of State Bull. 610, at p. 611 (May 11, 1970), hereinafter
cited as “U.S. Statement, April 15, 1970”, page citations to Dep’t. of State Bull.

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[Vol. 19, No. 3

But the United States disagrees fundamentally with the third
Canadian objective relative to the process of public order of the
oceans. The U.S. objectives in this regard are:

(3) rejection of the Canadian claims as adversely affecting
“the exercise by the United States and other countries of the
right of freedom of the seas in large areas of the high seas, with-
out basis in international law”;

(4) rejection of the Canadian claims as adversely affecting “our
[U.S.] efforts to reach international agreement on the use of the
seas”;

(5) rejection of the Canadian claims so that they will not “be
taken as precedent in other parts of the world for other unilateral
infringements of the freedom of the seas”;

(6) resolution of the broader problems of the public order of
the oceans through “international solutions”, in “a new interna-
tional treaty dealing with the limit of the territorial sea, freedom
of transit through and over international straits and defining pre-
ferential fishing rights for coastal states on the high seas”.

(7) resolution of the specific problems of “the Arctic beyond
national jurisdiction” by international agreements arising out of
multilateral efforts guided by the United States and Canada.’

(iii) Canada’s Claims

Expressed in terms of the studies of McDougal and Burke, 113

Canada makes the following claims:

(1) to determine the width of the territorial sea and to delimit

the boundary between internal waters and the territorial sea;

(2) exclusive, comprehensive, and continuing competence to

control access to a Canadian Arctic contiguous zone;

(3) exclusive, comprehensive, and continuing competence to
prescribe and apply authority in a Canadian Arctic contiguous zone;
(4) to take all measures necessary for self-defense against

environmental threats in the Canadian Arctic;

(5) to deny treatment of the Northwest Passage as an inter-

national strait.

As yet, there is no clear indication whether Canada will claim
exclusive rights of appropriation of resources in the waters of its
Arctic contiguous zone. Such rights are claimed in Canada’s expanded
territorial waters and on the continental shelf.

112 Ibid.
113 M. McDougal and M. Burke, supra, n. 8, at pp. 179-184.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

B. Canada’s Claims to Determine the Width of the Territorial Sea

Under Canada’s 1970 Act to Amend the Territorial Sea and Fishing
Zones, Canada extended its territorial sea from three to twelve
miles.” 4 The Act authorized establishment of a system of straight
baselines on “fisheries closing lines” across the entrances of bodies
of water in special need of fishery conservation protection and
where Canada has special historic fishing claims. Thus, Canada
would establish exclusive fisheries zones in such areas.

Two claims, then, have been advanced: to determine the width
of the territorial sea and to delimit the boundary between internal
waters and the territorial sea. (The use of straight baselines, in
consonance with the 1958 Geneva Convention on the Territorial Sea
and Contiguous Zone, will not be discussed in this article.)115

With respect to the first claim, Canada contends that, in Prime
Minister Trudeau’s words, “international law is moving from the
three- to the twelve-mile limit, therefore we are asserting that
Canada’s territorial seas henceforth will be coming under the
twelve-mile limit rule.” 11″6

The United States reaction to Canada’s claims for the territorial
sea, in the State Department Statement of April 15, 1970, was
generally negative but conciliatory. The issue of the width of the
territorial sea was treated as part of the broader complex of issues
raised by the Canadian claims to a contiguous zone in the Arctic.
The State Department Statement condemns all of the Canadian
claims as adversely affecting U.S. “efforts to reach international
agreement on the use of the seas”. The Canadian claims on the
territorial seas are rejected in the blanket statement that, “Inter-
national law provides no basis for these proposed unilateral
extensions of jurisdiction on the high seas, and the United States
can neither accept nor acquiesce
in the assertion of such
jurisdiction”.”7

In the penultimate paragraph of the U.S. Statement, the heart

of the matter is bared:

With respect to the 12-mile limit on the territorial sea, we have publicly
indicated our willingness to accept such limit, but only as part of an
agreed international treaty also providing for freedom of passage through
and over international straits.”18

114 Territorial Sea Act, supra, n. 3.
115 See Lloyd, supra, n. 8; Johnston, supra, n. 8.
116 Trudeau Press Conference, supra, n. 110, at p. 2.
117 U.S. Statement, April 15, 1970, at p. 610.
118 Ibid.

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The United States, then, claims that the Canadian extension
of the territorial sea to twelve miles is contrary to existing inter-
national law, disruptive of proper procedures for changing the law,
and a threat to “freedom of passage through and over international
straits”. No explicit reaction to the Canadian straight baseline
method is registered.

Three issues emerge from these claims and counterclaims:
(1) Is a state justified in claiming a twelve-mile territorial sea?
(2) Is unilateral action justified in asserting a claim to a twelve-

mile territorial sea?

(3) Do the Canadian claims with respect to territorial waters
infringe upon the rights of freedom of passage through and over
international straits?

Since the last issue is also directly involved in Canada’s claims
for a contiguous zone, it will be dealt with separately after those
claims are discussed. The analysis which follows focuses on the
present state of international law with respect to the width of the
territorial sea and the permissibility of unilateral assumption of
jurisdiction over a twelve-mile territorial sea given this state
of affairs.

(i) Basic Community Policies

Basic policies historically held by the members of the world
public order sought a compromise between the inclusive rights
of freedom of the seas and the legitimate exclusive rights of states
to territorial waters. Two expressions of this compromise have
been the efforts to hold to a minimum the width of territorial
waters and to protect the rights of innocent passage within such
waters. Attempts to hold the line on expanding claims to wider
territorial seas have had both practical and symbolic aspects.

In an age when even claims to less-than-sovereign jurisdiction
in contiguous zones and continental shelves may produce substan-
tially exclusive rights, extension of sovereignty in a wider territorial
sea means outright diminution of the area of freedom of the seas.
The more states succeed in extending their territorial seas, the less
remains of seas free to all. With respect to all outstanding issues
of sharing the resources of the seas, effective incorporation of
enlarged territorial seas simply removes such waters from considera-
tion. This has symbolic, psychological effects on the participants in
processes relative to the public order of the oceans. Extension
of territorial waters signals a lack of confidence in the prospects
for successful resolution of current issues in ways that are both

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

satisfactory to the coastal states and responsive to the inclusive
interest of the other states and the community.

When claims to sovereign, exclusive jurisdiction over the seas
are very extensive, for example, as broad as two hundred miles,
both their practical and symbolic effects on the public order of the
oceans are evident. But claims need not be so exaggerated in order
to have a significant, and perhaps harmful, effect on the balance
within the world public order between exclusive coastal and
inclusive maritime (and other) rights. The impact of a more modest
extension of territorial waters may be great, dependent upon
geography and the interests involved.

The broad symbolic, psychological effect of claims to extend
territorial waters is underscored by the fact that most of the
historic reasons for claiming exclusive, sovereign jurisdiction over
adjacent waters are now recognized as irrelevant to most states’
territorial waters. The three-mile limit was based on considerations
of security. Today, the technology of war renders immaterial dif-
ferences between territorial waters of three, six or twelve miles
for most states in most conditions. Fishing rights, conservational
and environmental protection, and other considerations relative
to exploitation of the resources of the seas are not generally
affected decisively by the extension of territorial waters a few miles.
They are, of course, affected by claims up to two hundred miles.
To be sure, in particular cases, security, fishing, environmental,
and other vital interests may be greatly affected by extension of
territorial seas just a few miles. But, more often, such interests
are protected through various forms of contiguous zones wherein
exclusive, sovereign ownership and jurisdiction need not be and
are not claimed.

In view of these considerations, it is understandable that the
policies of most of the leading maritime states and the opinions of
the leading publicists have sought to limit extension of territorial
waters. Basic community policy has tended to follow two working
guidelines:

(1) The width of the territorial sea should be kept as narrow

as possible.

(2) The presumption is always against claims to wider terri-

torial seas.

This latter presumption must be overcome by a showing of
the reasonableness of the extension in terms of the demonstrable
needs of the coastal state and the acceptability of its infringement
on the existing rights of other states and of the community.

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[Vol. 19, No. 3

Obviously, the presumption against extension of territorial waters
would be further overcome by a showing that the extension served
to protect important rights of other states and of the community.'”

C. Claims For A Twelve-Mile Territorial Sea
(i) Clarification of Policy

The normal way to analyse Canada’s claim to a twelve-mile
territorial sea would be to start with the general presumption
against unilateral claims on this subject, and then to examine the
substance of the claim in question. However, the normal sequence
is not appropriate in this case since there is little to suggest that
Canada questions the general position that states are not free
to claim any territorial sea they wish. Canada contends that it is
only joining, not initiating, a trend toward claims to twelve-mile
territorial seas. The U.S. counterclaim is that the form and timing
of the Canadian claim is unjustified in law and unhelpful at this
point in the development of the law. Accordingly, it appears
appropriate to start with the legal status of the question of the
width of territorial seas, and then to examine the reasonableness
of Canada’s unilateral claim to a twelve-mile limit.

A further clarification should precede analysis of trends in a
decision regarding the width of the territorial sea. Thus far it
appears that Canada remains among the states that retain the
traditional view that the territorial sea should be relatively narrow,
no more than twelve miles. Canada has not made claims for exclusive,
sovereign control over hundreds of miles of high seas as have such
states as Ecuador and Peru. 2 It will be argued in the assessment

11M. McDougal and W. Burke, supra, n. 8, at pp. 452453, 488-489; M.
McDougal, “International Law and the Law of the Seas”, in The Law of the
Sea, (L.M. Alexander, ed., 1967), at p. 20.
120 See: Chile’s Presidential Declaration Concerning the Continental Shelf
and Coastal Fisheries in the Adjacent Seas, June 29, 1947, and Peru’s Presi-
dential Decree No. 781, Concerning the Continental Shelf and Coastal Fisheries
in the Adjacent Seas, August 1, 1947: United Nations, Laws and Regulations
on the Regime of the High Seas, at pp. 15-16, 16-18; The Declaration of Santiago,
signed by representatives of Chile, Ecuador and Peru in 1952, United Nations
Legislative Series. Laws and Regulations on the Regime of the Territorial
Sea, (1957), at pp. 723-29; The Declaration of Montivideo on the Law of the
Sea of 1970, (1971) 10 I.L.M. 1081.

See: M. McDougal and W. Burke, supra, n. 8, at pp. 3-4, 44, 492-498, 502-503,
956; Kunz, Continental Shelf and International Law: Confusion and Abuse,
(1956) 50 AJ.I.L. 828; Loring, The United States-Peruvian “Fisheries” Dispute,
(1971) 23 Stan. L. Rev. 391; and Loring, “The Fisheries Dispute”, in U.S. Foreign
Policy and Peru, (D. Sharp, ed., 1972), at pp. 57-177.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

of Canada’s contiguous zone claims that its functional control of
seas therein may well amount in practice to exclusive control.
Nevertheless, it is important to emphasize that Canada’s claims
to a twelve-mile territorial sea should be judged primarily in the
context of the claims and counterclaims of other states adhering
to the twelve-mile outer limit on exclusive, sovereign control to
coastal sea areas.

Three main issues dominate the question of extending territorial
(2) fishing rights within such

seas: (1) access through straits;
areas; and (3) pollution.

With respect to straits, a basic issue is the extent to which
international practice supports a right to innocent passage through
straits connecting the high seas, or national waters and the high
seas. The debate over the character of the right of access
is
complicated by the question whether straits acquire an international
character simply because of their geographic location, or whether
actual use by international maritime traffic is required. Further,
there is disagreement over the rights of public warships in inter-
national straits.

The issue of fishing within territorial waters is but a part
of the broader issues of conservation and allocation of fishing
rights. A major reason for expanded claims to territorial seas is
protection of fisheries. Yet twelve-mile territorial seas are not
adequate to protect many fisheries; hence claims to fifty, one-
hundred and two-hundred mile “sovereign” territorial waters. In
calculating the positive and negative implications of extending
territorial seas to twelve miles, the gains for coastal fishing rights
may come to be viewed as modest compared with the difficulties
engendered for innocent passage generally and access to straits
in particular. Accordingly, the reasonableness of a claim to a
twelve-mile territorial sea may be judged in considerable measure
in the light of the claimant state’s policies with respect to free
access and innocent passage.

However, and against the traditional emphasis on the importance
of access and innocent passage in territorial waters including
straits, there is increasing awareness of the threat of pollution
to the coastal state resulting from deleterious practices and from
accidents that may result from the exercise of the rights of
passage by international shipping. Here again, as in the case of
protecting coastal shipping rights, the question may be raised
as to whether a twelve-mile territorial sea permits markedly more
effective anti-pollution measures than a narrower sea. Again, as in
the case of balancing fishing rights against rights of access and

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[Vol. 19, No. 3

innocent passage, it may be asked whether the more preferable
answer to pollution threats may not be contiguous zones of consider-
able distance but limited exclusive claims rather than slightly
enlarged (e.g. three to twelve miles) territorial seas.

(ii) Trends in Decision

The failure of the 1958 and 1960 Geneva Conferences to fix
a width for territorial seas is well known.’ 2′ It will also be recalled
that at the 1958 Conference the United States appeared to acknow-
ledge the hopelessness of the effort to retain the three-mile limit
when it proposed a six-mile limit plus a six-mile contiguous zone,
in which the coastal state would have exclusive fishing rights
subject to historic rights of others. The fact that this compromise
proposal obtained the highest vote of any, even though it failed
to obtain the necessary two-thirds vote, suggests at least these
points of possible consensus:

(1) against exclusive territorial seas in excess of twelve miles;
(2) in favor of
territorial seas

twelve-mile, near-exclusive

combined with fishing zones;

(3)

in favor of no more than six miles with respect to exclusive

jurisdiction over shipping (innocent passage).

The practice of states appears to have coincided broadly with
these points of consensus for a decade or more after 1958. But
more states are claiming a twelve-mile territorial sea, to the point
where such a width appears to be the only one likely to find
broad acceptance.122 Meanwhile, conservative states such as the
United States have followed the precedents of other states, in-

121 See: M. McDougal and W. Burke, supra, n. 8, at pp. 526-48 (for descrip-
tion), 548-61 (for appraisal and recommendation); United Nations, Second
United Nations Conference on the Law of the Sea, “Synoptical table concerning
the breadth and juridical status of the territorial sea and adjacent zones”,
(CA/Conf. 19/4, February 8, 1960, and A/Conf. 19/8, Annexes), at pp. 157-63,
in M. Whiteman, 4 Digest of International Law, (1965), at pp. 21-33.
122 “Among 138 states, whose national claims were compiled by the U.S.
Department of State in early 1972, only 30 states will uphold the 3-mile limit,
and of these 30 only 7 can be regarded as important industrial states. More
than ninety other states in eastern Europe, Africa, and South America have
claimed a 12-mile or broader territorial sea”: F. Kruger-Sprengel, The Role
of NATO in the Use of the Sea and the Seabed, (Woodrow Wilson International
Center for Scholars, Ocean Series 304, Washington, D.C., October 1972, G.J.
Mangone, ed.), citing Limits in the Seas, National Claims to Maritime Juris-
dictions, International Boundary Study, Series A., no. 36, January 3, 1972,
Department of State, Bureau of Intelligence and Research, Washington, D.C.
For U.S. and Soviet recognition of this trend, see infra, Part two, Volume

19, number 4 of the Journal.

1973]

LAW OF THE SEA IN THE “CANADIAN” ARCTIC

in claiming exclusive
cluding previously conservative Canada,
fishing zones up to twelve miles, including the three-mile territorial
sea. 123 Indeed, the U.S. Department of State has termed exclusive
twelve-mile fishing zones acceptable in view of the overwhelming
practice of states.124 Thus, if one breaks down the question of
territorial seas and/or contiguous zones into the two most relevant
inclusive interests, the following may be observed:

(1) Twelve-mile zones are acceptable with respect to fishing

rights.

(2) Twelve-mile territorial seas are increasingly claimed but
they are questioned and resisted because maritime states will not
concede the greater control of coastal states over passage of ships
in waters formerly considered high seas. Accordingly, states such
as the United States still characterize as contiguous zones fishing
and other zones beyond three miles, which states such as Canada
are now claiming as part of territorial waters.

McDougal and Burke have criticized the concept of contiguous
zones as it has been defined in the 1958 Geneva Territorial Sea and
Contiguous Zone Convention. They find this definition unacceptable
because of its inflexible twelve-mile limit and its limited, specifically
authorized functions, that is, enforcement of customs, fiscal, im-
migration and sanitary regulations. They point out that historically
there have been contiguous zones: zones adjacent to territorial seas,
extending farther out to sea than twelve miles. Contiguous zones

12 3 The Act, approved October 14, 1966, 80 Stat. 908, provides:
Sec. 1. There is hereby established a fisheries zone contiguous to the
territorial sea of the United States. The United States will exercise the same
exclusive rights in respect of fisheries in the zone as it has in its territorial
sea, subject to the continuation of traditional fishing by foreign states within
this zone as may be recognized by the United States.

Sec. 2. The fisheries zone has as its inner boundary the outer limits of the
the territorial sea and as its seaward boundary a line drawn so that each
point on the line is nine nautical miles from the nearest point in the inner
boundary.

124 Bishop says:
The European Fisheries Convention of 1964 provides for exclusive fishing
by the coastal state within six miles outward from the baseline of its territorial
sea, and then for an outer belt between six and twelve miles outward from
the baseline of its territorial sea, in which fishing is limited to the coastal state
and to other parties whose vessels have habitually fished in that belt between
1953 and 1962.

(W. Bishop, International Law: Cases and Materials, (3rd ed., 1971), at
p. 630). Bishop cites in support of the U.S. act evidence of state practice
reported in S. Rep. No. 1280, Committee on Commerce, 89th Cong., 2nd Sess.
(1966): Ibid.

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[Vol. 19, No. 3

for security and fishing are notable types not included in the 1958
Geneva definition. Moreover, it is questionable whether anti-pollu-
tion zones such as that claimed by Canada can be satisfactorily
dealt with as a “sanitary” zone in the sense of Article 24 of the
1958 Geneva Convention on the Territorial Sea and Contiguous
Zone.

125

or will soon be

These questions underscore the interrelation of the concepts of
territorial seas and contiguous zones, as well as the difficulties
of restricting both concepts within an inflexible twelve-mile limit.
If Canada is correct in its belief that a twelve-mile territorial
sea is –
the norm, variants of the 1958,
Article 24 “contiguous zone” are now – or soon will be –
irrelevant.
A new, expanded, more flexible definition of contiguous zone will
have to be forthcoming. If Canada is not correct, we shall need two
or more terms for “contiguous zones”, depending upon whether
they extend more or less than twelve miles and whether they deal
only with the 1958, Article 24 subjects of fishing and anti-pollution,
or with other subjects, notably security.

–

The relevant literature appears

increasingly to concede the
inevitability of extension of the territorial sea to a width of
twelve miles. But the same writers remain unsatisfied with the
status of innocent passage generally and of passage through straits
in particular. 126 In the literature on the Canadian-U.S. controversy,
the treatment of Canada’s claim to a twelve-mile limit is relatively
perfunctory, except for the issue of the effect of this extension
of territorial seas on passage through straits, a subject to be
treated separately below.’ 2 7

In view of the apparent trend towards claims to a twelve-mile
territorial sea, or a combined, near-exclusive, territorial sea and
contiguous zone of twelve miles, a trend recognized by the United
States even as it has protested Canada’s twelve-mile claim, the
heart of the U.S.-Canadian controversy would appear to lie not
in the fact that a wider territorial sea is claimed. Rather, it is
the unilateral assertion of the claim and the continuing debate
over the effect of such claims on straits that draws objections.

125M. McDougal and W. Burke, supra, n. 8, at pp. 604-607; M. McDougal,
“International Law and the Law of the Seas”, in The Law of the Sea, (L.M.
Alexander, ed., 1967), at. p. 20.
120 See: Ratiner, supra, n. 2, at pp. 245-246; Kreuger, supra, n. 2, at pp. 645-46,
665-78; Bilder, supra, n. 6, at pp. 1180-82; Kruger-Sprengel, supra, n. 122, at pp.
22-25.

27 Bilder, supra, n. 6; Milstein, supra, n. 6, at pp. 1179-82.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

As observed earlier, the Canadian claim to a twelve-mile terri-
torial sea does not appear to question the basic community policy
against unilateral claims. This point becomes clear if we consider
the “Principles of Mexico on the Juridical Regime of the Sea”,
adopted by the Inter-American Council of Jurists, Mexico City,
1956, which concludes:

Each state is competent to establish its territorial waters within reason-
able limits, taking into account geographical, geological, and biological
factors, as well as the economic needs of its population, and its security
and defense.128
The Canadian claim does not go to the extreme of the “Principles
of Mexico”. It is not based on a broad claim of reasonableness, but
rather on a trend in state interaction and claims with which Canada
wishes to identify itself. For this reason, Canada is willing to
submit its claim to a twelve-mile territorial sea to adjudication. 129
It would appear that this Canadian claim, then, is not contrary
to contemporary trends in decision. If this is the case, the U.S.
is reduced to the objection that Canada’s initiative is inopportune
at this point in the process of authoritative decision-making. The
United States, concerned about other issues which are far less
close to resolution than extension of territorial seas to the twelve-
mile limit, and anxious to resolve them in packages including the
issue of the width of the territorial sea, objects to Canada’s adding
her weight to the consensus that would settle the territorial sea
question without resolving other more difficult issues.

(iii) Appraisal and Recommendation

Overall appraisal and recommendations

regarding Canada’s
twelve-mile limit must be deferred until analysis has been completed
with respect to the integrally related issues of the contiguous zone
and the status of the Northwest Passage as a strait. However, a
preliminary reaction to the Canadian twelve-mile claim is in order.
On balance, this claim is reasonable both from the standpoint of
Canada’s legitimate, exclusive interests and the inclusive interests
of other states and of the international community. In light of the
trend to a twelve-mile limit, it is not an early, pioneering, or
provocative claim. Rather, Canada is claiming equality with a
substantial number of states that have already claimed twelve
miles.1 0

128 Resolution XIII, “Principles of Mexico on the Juridical Regime of the
Sea”, Final Act of the Third Meeting of the Inter-American Council of Jurists,
Mexico City, January 17 – February 4, 1956 (Pan American Univ. 1956).

129 Trudeau Press Conference, supra, n. 110, at pp. 2, 5.
130 See infra, Part two, volume 19, number 4 of the Journal.

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[Vol. 19, Nc. 3

Moreover, the unilateral character of the Canadian claim and
its expression of Canada’s unwillingness to wait any longer for
achievement of a binding consensus on the width of the territorial
sea through the conventional approach comes in the context of
Canada’s long record as a moderate – or even conservative nation
on this and other law of the sea issues. Further evaluation of
–
Canada’s territorial sea claim on its merits and as a contribution
to the process of authoritative decision will follow as part of a
comprehensive reaction to the total Canadian position on the
waters of the North American Arctic.

I

[End of Part I]