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

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

The Pattern of Controversy (Part II)t

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

D. Canada’s Claim to an Arctic Contiguous Anti-Pollution Zone

Under the Arctic Waters Pollution Prevention Act of 1970,
Canada claimed competence to regulate all shipping in zones up
to one hundred nautical miles north of its Arctic coasts. 31 The
regulatory rights claimed are designed to prevent pollution of
the region’s coastal and marine resources.8 2 Canada moved concur-
rently to preclude international adjudication of disputes arising
out of this legislation by submitting to the United Nations a
declaration amending Canada’s acceptance of the compulsory juris-
diction of the International Court of Justice over such disputes.3 3

t Part Two is the concluding section of the present article. Part One
appears in Volume 19, number 3 of the McGill Law Journal, at pp. 322 et seq.
* 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.

131 See supra, n. 6.
132 Whereas Parliament recognizes that recent developments in relation to
the exploitation of the natural resources of arctic areas, including the natural
resources of the Canadian arctic, and the transportation of those resources
to the markets of the world are of potentially great significance to inter-
national trade and commerce and to the economy of Canada in particular;
And whereas Parliament at the same time recognizes and is determined
to fulfil its obligation to see that the natural resources of the Canadian arctic
are developed and exploited and the arctic waters adjacent to the mainland
and islands of the Canadian arctic are navigated only in a manner that takes
cognizance of Canada’s responsibility for the welfare of the Eskimo and other
inhabitants of the Canadian arctic and the preservation of the peculiar eco-
logical balance that now exists in the water, ice and land areas of the Canadian
arctic;

Now therefore, Her Majesty, by and with the advice and consent of the

‘

Senate and House of Commons of Canada, enacts as follows:

3 Canadian Declaration Concerning the Compulsory Jurisdiction of the
International Court of Justice, April 7, 1970, U.N. Communication C.N. 53,
1970, Treaties –

3 of April 21, 1970.

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Under the Pollution Prevention Act, Canada claims the right,

inter alia, to:

(1) prohibit and punish deposit of “waste” in the Arctic waters
or on the islands or mainland so as to enter Arctic waters; require
that any deposit of such waste or danger of pollution be reported; 13 4

134 (4) (h) “waste” means

(i) any substance that, if added to any waters, would degrade or alter
or form part of a process of degradation or alteration of the
quality of those waters to an extent that is detrimental to their
use by man or by any animal, fish or plant that is useful to man,
and

(ii) any water that contains a substance in such a quantity or con-
centration, or that has been so treated, processed or changed, by
heat or other means, from a natural state that it would, if added
to any waters, degrade or alter or form part of a process of
degradation or alteration of the quality of those waters to an
extent that is detrimental to their use by man or by any animal,
fish or plant that is useful to man,

and without limiting the generality of the foregoing, includes anything that,
for the purposes of the Canada Water Act, is deemed to be waste.

4. (1) Except as authorized by regulations made under this section, no
person or ship shall deposit or permit the deposit of waste of any type in
the arctic waters or in any place on the mainland or islands of the Canadian
arctic under any conditions where such waste or any other waste that results
from the deposit of such waste may enter the arctic waters.

(2) Subsection (1) does not apply to the deposit of waste in waters
that form part of a water quality management area designated pursuant to
the Canada Water Act if the waste so deposited is of a type and quantity
and is deposited under conditions authorized by regulations made by the
Governor in Council under paragraph (a) of subsection (2) of section 16 of
that Act with respect to that water quality management area.

5.

(1) Any person who
(a) has deposited waste in violation of subsection (1) of section 4, or
(b) carries on any undertaking on the mainland or islands of the Cana-
dian arctic waters that, by reason of any accident or other occur-
rence, is in danger of causing any deposit of waste described in
that subsection otherwise than of a type, in a quantity and under
conditions prescribed by regulations made under that section,

shall forthwith report the deposit of waste or the accident or other occurrence
to a pollution prevention officer at such location and in such manner as may
be prescribed by the Governor in Council.

(2) The master of any ship that has deposited waste in violation of
subsection (1) of section 4, or that is in distress and for that reason is in
danger of causing any deposit of waste described in that subsection other-
wise than of a type, in a quantity and under conditions prescribed by regula-
tions made under that section, shall forthwith report the deposit of waste
or the condition of distress to a pollution prevention officer at such location
and in such manner as may be prescribed by the Governor in Council.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

(2) destroy or remove ships in distress which are a source or

threat of waste deposits; 135

(3)

prescribe as a “shipping safety control zone” any area of
the Arctic waters; 13 6 within such zones regulate navigation,’13 7

135 13. (1) Where the Governor in Council has reasonable cause to believe
that a ship that is within the arctic waters and is in distress, stranded,
wrecked, sunk or abandoned, is depositing waste or is likely to deposit waste
in the arctic waters, he may cause the ship or any cargo or other material
on board the ship to be destroyed, if necessary, or to be removed if possible
to such place and sold in such manner as he may direct.

136 11. (1) Subject to subsection (2), the Governor in Council may, by order,
prescribe as a shipping safety control zone any area of the arctic waters
specified in the order, and may, as he deems necessary, amend any such
area.

137 12. (1) The Governor in Council may make regulations applicable to ships
of any class or classes specified therein, prohibiting any ship of that class
or of any of those classes from navigating within any shipping safety control
zone specified therein

(a) unless the ship complies with standards prescribed by the regula-

tions relating to

(i) hull and fuel tank construction, including the strength of
materials used therein, the use of double hulls and the sub-
division thereof into watertight compartments,

(ii) the construction of machinery and equipment and the elec-
tronic and other navigational aids and equipment and tele-
communications equipment to be carried and the manner
and frequency of maintenance thereof,

(iii) the nature and construction of propelling power and appli-

ances and fittings for steering and stabilizing,

(iv) the manning of the ship, including the number of navigating
and look-out personnel to be carried who are qualified in a
manner prescribed by the regulations,

(v) with respect to any type of cargo to be carried, the maximum
quantity thereof that may be carried, the method of stowage
thereof and the nature or type and quantity of supplies and
equipment to be carried for use in repairing or remedying any
condition that may result from the deposit of any such cargo
in the arctic waters,

(vi) the freeboard to be allowed and the marking of load lines,
(vii) quantities of fuel, water and other supplies to be carried, and
(viii) the maps, charts, tide tables and any other documents or
publications relating to navigation in the arctic waters to be
carried;

(b) without the aid of a pilot, or of an ice navigator who is qualified
in a manner prescribed by the regulations, at any time or during
any period or periods of the year, if any, specified in the regulations,

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prohibit access to ships not meeting prescribed regulations; 18
preclude access entirely at certain
times of year or when
certain ice conditions prevail;139

(4) exempt ships owned or operated by foreign sovereigns
if substantial compliance with shipping safety control zone
regulations is indicated; 140

(5)

implement the anti-pollution regime through the activ-
ities of pollution prevention officers with broad powers including
boarding and inspection of ships entering the zone; 141

(6)

sanction the regime through fines, seizure and forfeiture
of ships and cargos, civil
liability for costs and expenses of
the Canadian Government and for actual loss or damage resulting
in the deposit of waste.142

It

is important to take note of the characterization of this
anti-pollution contiguous zone by Canadian authoritative decision-
makers. In his press conference of April 8, 1970, following the

or without icebreaker assistance of a kind prescribed by the regula-
tions; and

(c) during any period or periods of the year, if any, specified in the
regulations or when ice conditions of a kind specified in the regula-
tions exist in that zone.

(2) The Governor in Council may by order exempt from the application
of any regulations made under subsection (1) any ship or class of ship that is
owned or operated by a sovereign power other than Canada where the
Governor in Council is satisfied that appropriate measures have been taken
by or under the authority of that sovereign power to ensure the compliance
of such ship with, or with standards substantially equivalent to, standards
prescribed by regulations made under paragraph (a) of subsection (1) that
would otherwise be applicable to it within any shipping safety control zone,
and that in all other respects all reasonable precautions have been or will be
taken to reduce the danger of any deposit of waste resulting from the naviga-
tion of such ship within that shipping safety control zone.

(3) The Governor in Council may make regulations providing for the
issue to the owner or master of any ship that proposes to navigate within
any shipping safety control zone specified therein, of a certificate evidencing,
in the absence of any evidence to the contrary, the compliance of such ship
with standards prescribed by regulations made under paragraph (a) of sub-
section (1) that are or would be applicable to it within that shipping safety
control zone, and governing the use that may be made of any such certificate
and the effect that may be given thereto for the purposes of any provision
of this Act.

138 Art. 15(3)(b).
’39Art. 15(3)(b)(iii) and (c).
140 Art. 12(2).
14′ Arts. 14, 15, 16, and 17.
142 Arts. 18, 19, 23-24.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

introduction of the Pollution Prevention Act in the House of
Commons, Prime Minister Trudeau said:

… it is not an assertion of sovereignty, it is an exercise of our desire to
keep the Arctic free of pollution and by defining one hundred miles as
the zone within which we are determined to act, we are indicating that
our assertion there is not one aimed towards sovereignty but aimed
towards one of the very important aspects of our action in the Arctic. 143

When asked, “Would not the prosecution of any violation of’ the
pollution regulations in the Arctic be an exercise of a sovereignty
claim?”, Trudeau replied:

this is the sovereignty aspect of it –

They would be an exercise of authority given by Parliament
to the
Executive Branch to apply a certain statute. Now, this doesn’t necessarily
mean that you’re asserting sovereignty over those seas any more than the
Continental Shelf Doctrine, for instance, entails sovereignty with it …
Therefore, the distinction between the absolute claim of sovereignty which
means that you own everything, the land, the water, the resources in the
water and so on, which is the case for the international waters of any
nation –
against the other aspect
which is not an assertion of sovereignty, but an assertion of determination
to control certain aspects of what is happening there. In the same way
as you have this happening in the airways. The United States and Canada
exercise some form of control over airships approaching Canada for
hundreds of miles out over the Atlantic Ocean. This doesn’t mean we are
asserting sovereignty over that.144
Later in the conference, Prime Minister Trudeau again disavowed
any claim to sovereignty in the contiguous zone, this time in the
context of a discussion of nationalist pressures that “have been
extremely critical in the past because we haven’t gone ahead and
sort of grabbed the whole Arctic…” 145

In Canada’s April 16, 1970 note in reply to U.S. objections to
the Arctic Waters Pollution Prevention Act, having stated that,
“Canada reserves to itself the same rights as the United States has
asserted to determine for itself how best to protect its vital interests,
including in particular its national security”, and that “a danger
to the environment of a state constitutes a threat to its security”, 46
the Secretary of State for External Affairs asserted:

Thus the proposed Canadian Arctic Waters Pollution Prevention Legislation
constitutes a lawful extension of a limited form of jurisdiction to meet

143 Trudeau Press Conference, supra, n. 110, at p. 2.
144Ibid., at pp. 2-3.
145 Ibid., at p. 3.
146 Summary of Canadian Note, April 16, 1970, Tabled by the Secretary of
State for External Affairs in the House of Commons, April 17, 1970, Canadian
Embassy, Washington, D.C., at p. 608 (Hereinafter cited as “Canadian Note,
April 16, 1970”).

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particular dangers, and is of a different order from unilateral interferences
with the freedom of the seas such as, for example, the atomic tests carried
out by the United States and other states which, however necessary they
may be, have appropriated to their own use vast areas of the high seas
and constitute grave perils to those who would wish to utilize such areas
during the period of the test blast… [e.g. the October 1969 Amchitka
Island test]. The proposed anti-pollution legislation, proposed fisheries
protection legislation, and the proposed twelve-mile territorial sea consti-
tute a threat to no state and a peril to no one.147
In its April 15, 1970 statement, the U.S. Department of State
made, inter alia, the following points in objecting to Canada’s
claims:

The enactment and implementation of these measures would affect the
exercise by the United States and other countries of the right to freedom
of the seas in large areas of the high seas and would adversely affect our
efforts to reach international agreement on the use of the seas.

International law provides no basis for these proposed unilateral exten-
sions of jurisdiction on the high seas, and the United States can neither
accept nor acquiesce in the assertion of such jurisdiction.
We are concerned that this action by Canada if not opposed by us, would
be taken as precedent in other parts of the world for other unilateral
infringements on the freedom of the seas. If Canada has the right to claim
and exercise exclusive pollution and resources jurisdiction on the high
seas, other countries could assert the right to exercise jurisdiction for
other purposes, some reasonable and some not, but all equally invalid
according to international law. Merchant shipping would be severely
restricted, and naval mobility would be seriously jeopardized. The potential
for serious international dispute and conflict is obvious.148
These claims and counterclaims may be analyzed in terms of

the following three issues:

(1)

Is a state justified in controlling access to a contiguous

pollution control zone such as that claimed by Canada?

(2)

Is a state justified in prescribing authority with respect

to mandatory anti-pollution control measures in such a zone?

(3) What, if any, measures may a state employ to apply its

authority in such a zone?

The Canadian claims also raise the issue of the effect of anti-
pollution regulation on appropriation of the resources in the region.
Despite the absence of Canadian claims to exclusive rights to
appropriate these mineral and living resources of the sea, it
is
clear that implementation of the anti-pollution measures might
have that effect. Further, Canada claims broad rights of self-

147 Ibid.
148 U.S. Statement, April 15, 1970, at pp. 610-11.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

defense against environmental threats to its most vital interests.
Finally, as previously observed, the issues dealt with in this section
relate integrally with the issue of access to alleged international
straits, to be discussed last.

(i) Basic Community Policies

Clearly, the basic community policy regarding contiguous zones
requires that maximum free access to and use of the high seas and
their resources be maintained. But the understanding of that broad
policy is changing and controverted. Traditionally it meant maxim-
ization of use of the high seas. There is an accelerating awareness
of threats to the ocean environment arising out of a man’s use of it.
This awareness has produced pressures to temper maximization
of use with adequate measures to protect this environment. This
new conservationist emphasis in basic community policy confronts
state practice which was already in disarray over the meaning
of the goal of “fullest production of values compatible with their
equitable distribution”.149

Thus, the broad preference for inclusive over exclusive control
and use of the oceans is tempered by the realization that exclusive
claims to regulatory control in the interests of conservation may
have to be accorded greater weight than in the past. In the light
of this emerging realization, the community must face the further
perennial
issue of unilateral, exclusive, legitimate claims of a
coastal state which may simply outweigh the broad inclusive claims
of other states and of the international community because of the
values at stake for the coastal state.

McDougal and Burke sum up the question as follows:
The historic function of the contiguous zone concept has thus been that
of authorizing coastal states unilaterally to secure a reasonable protection
of their limited exclusive interest, without permitting the more drastic
expansion of their continuing, comprehensive competence associated with
internal waters and the territorial sea. The major significance of this
function has been in its explicit recognition that an optimal shaping and
sharing of all values requires honoring this extension of exclusive authority
for special, limited purposes only, and, consequently, some modification
of inclusive use and authority on the high seas. Community policy has,
therefore, been expressed in complementary principles promoting, on the
one hand, inclusive use and authority and, on the other, important exclus-
ive interests.150

149 M. McDougal and W. Burke, supra, n. 8; See generally, Friedheim, Under-
standing the Debate on Ocean Resources, (Law of the Sea Institute, University
of Rhode Island, Occasional Paper No. 1, February, 1969).

150 M. McDougal and W. Burke, supra, n. 8, at pp. 578-79. Emphasis added.

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Given

the growing concern for conservation of the ocean
environment, we must emphasize
that McDougal and Burke’s
“special, limited purposes only” qualification refers to community
interests protected, as well as the interests of the coastal state. This,
of course, is a major point in Canada’s claim.

From

the standpoint of

the international community,

the
problem in judging claims to contiguous zones is that of evaluating
their reasonableness in terms of the balancing of exclusive coastal
and inclusive community interests. Put negatively, exclusive claims
must not be arbitrary in substance and form. This criterion of
reasonableness involves multifactoral analysis. McDougal and Burke
outline such an analysis which is readily applicable to the Canadian
Arctic claims. It involves an examination of interests to be protected,
the status of ocean areas affected, and the “modality and degree
of interference involved in the claim to authority”.15′

Applied to the Canadian claim, these factors include, first, the

following issues with respect to interests:
(1) The interests of the coastal state;
(2) The scope of the authority asserted;
(3) The relationship between claimed authority and the interest
at stake, and the nature and significance of the inclusive uses
affected.

Canada’s interests in protecting its coastal and maritime environ-
ment and resources seem relatively clear and vital.1 2 The scope of
the authority asserted is less clear. It is not exclusive in the sense
of sovereign authority, but it may be sufficiently exclusive so as to
amount to practical, exclusive control of the region. What is even
less clear is the relation between the claimed authority and the
interests at stake, on the one hand, and the nature and significance
of the inclusive uses affected on the other. Given the developing
character of activities such as shipping, fishing, and appropriation
of mineral resources in the Canadian Arctic, it is very difficult to
know what the stakes now are, or will be in the future, for Canada
and, in particular, for other states and for the international
community. 153

Finally, it is necessary to judge whether the authority claimed
“is reasonably calculated to secure the professed objective or
whether some other, perhaps concealed, goal is in view”.'” Certainly

’51 Ibid., at pp. 579-81.
152 Supra, at pp. 355-56.
153 Supra, at pp. 340-42.
154 M. McDougal and W. Burke, supra, n. 8, at p. 580.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

it appears that the authority claimed by Canada is appropriate to
the professed objectives. Whether Canada also has some other
objectives, such as claiming sovereignty over the entire region as
the last step in a series of claims, is a matter for speculation. Here
it may be useful to recall the requirement of “Right Intention” in
traditional “Just War Theory”. In addition to limiting means to
those appropriate to legitimate ends, a party must be faithful
to those ends and not use them as a cover for the accomplishment of
other less defensible objectives.

A second broad category of variables concerns inclusive uses
of the ocean areas affected by the Canadian claims. The physical
characteristics, history and legal status of the Arctic waters north
of Canada clearly differentiate them from most ocean areas. They
also link the Canadian Arctic waters with other Arctic and perhaps
Antarctic regions. It is important, then, to probe the issue of the
unique character of the Canadian Arctic waters. This is necessary
in the first place in order to judge the reasonableness of the Canadian
claims viewed as legitimate self-protection. But the alleged unique-
ness of these waters also enters into the evaluation of Canada’s claim
that her initiative is in the interest of the general law of the sea.
Viewed from this standpoint it is important to determine what
elements in this ocean area are common to all ocean areas.

In the last category of variables suggested by McDougal and
Burke, attention is turned to the modality and degree of interference
involved in the claim to authority. What is the effect on specific
inclusive uses? Here again the developing character of the region
forces projections of what may occur as a substitute for analyses
of practice. It appears that there has been little activity for Canada
to interfere with. Moreover, the effective date of the Canadian
law was August 2, 1972. Unlike other controversies, such as those
involving claims in the CEP states in Latin America and Iceland,
we lack practice, precedents and causes cgl~bres.155

Once these factors have been analyzed and weighed, basic
community policy requires that they be evaluated in terms of a
presumption for inclusive uses, and against exclusive claims, to
the oceans. The importance of the factors favoring exclusive claims
by the coastal state must override the factors favoring maintenance
of the balance in favor of inclusive interests. 1 6 It bears repeating
that this calculation is complicated by the contention of Canada
that its claims have a two-fold character: protection of Canada’s

155 See supra, n. 120.
156 M. McDougal and W. Burke, supra, n. 8, at p. 581.

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interests and protection of the interests of other states and of the
international community. 157

Opinions as to these difficult questions will be offered in the
section of Appraisal and Recommendation. Meanwhile, they form
the background for examination of the component parts of the
Canadian claim to a contiguous zone in the Arctic:

(1) competence to control access;
(2)
(3)

competence to prescribe authority;
competence to apply authority.

E. Canada’s Claim to Control Access to Canadian Arctic Waters

(i) Clarification of Policy

It has been recalled that international law raises a presumption
against exclusive claims to competence in the oceans beyond the
territorial seas. This presumption has sometimes been overcome
when exclusive claims of coastal states were not comprehensive,
but rather occasional and limited to specific functions. Such
restrictions upon the principle of freedom of the seas have some-
times been accepted as reasonable where a high degree of recogni-
tion and protection was accorded by the coastal state to the
preservation of effective inclusive use.

This traditional way of viewing claims for contiguous zones
must be reviewed in the light of the growing challenge to freedom
of the seas as the overriding expression of international community
policy. Canada has been a leading exponent of a shift in emphasis
from freedom of the seas to protection and conservation of the
seas and of coastal states. The problem is further complicated by
the nature of the Arctic Seas. Are they, in principle, “free”? Are
they “free” in the same way that other seas are free? In view
of possible changes in basic community policies and the particular-
istic character of the Arctic waters, does Canada have as much
of a presumption to overcome in order to justify its claims as,
for example, Ecuador?

On the other hand, in the calculation of reasonableness, is it
accurate to characterize the measures whereby Canada will imple-
ment its claims as “limited”, “occasional”, or strictly “functional”?
A review of roughly comparable claims may furnish a better basis
for answering these questions. Certainly it is contended by Canada

157Supra, at p. 355.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

that her claims are reasonable by the criteria that have been
applied to other claims to competence to control access to the
ocean.

One point is particularly important in the review and appraisal
of past precedents. That is the changing character of the ocean
environment and the consequent changing requirements for the law
regulating that environment. As Canada has frequently complained,
anti-pollution law for the oceans is a very new and unsatisfactory
expression of state practice. There are few direct precedents.
Analogies from other parts of the law of the sea may be helpful,
but inquiry into the Canadian position profits from the perceptive
call by McDougal and Burke for flexibility:

The relatively recent efforts to devote more systematic and comprehensive
attention to investigation of oceanic phenomena are likely to lead to
developments that increase and intensify impact on unique coastal in-
terests. These impacts may well require extension of occasional exclusive
competence by the affected states in relation to events that we cannot
now anticipate in helpful detail. Until more effective general community
institutions of world public order are created, there appears no reasonable
alternative to a recommendation that the contiguous zone concept be
maintained as a highly flexible device, capable of adaptation to secure the
reasonable protection of any exclusive interest shared by states.158

(ii) Trends in Decision

The practice of states generally reflects a fair degree of tolerance
for claims to control access to the high seas for limited purposes
within contiguous zones. In surveying trends in this practice it
is important to bear in mind that the claims in question had two
basic characteristics:

(1) They extended beyond the territorial sea, were of a limited,
not sovereign nature, and were treated by all concerned as extra-
ordinary;

(2) These contiguous zones were judged in terms of their
reasonableness in relation to their purpose rather than on the
basis of their width or their assimilability
into preordained
categories such as those set forth in Article 24 of the 1958 Geneva
Convention on the Territorial Sea and Contiguous Zone.

Thus, as observed earlier, Article 24 of the Geneva Convention
on the Territorial Sea and Contiguous Zone does not reflect either
the full range of types, or of the widths, of the contiguous zones
that have been accepted by state practice. The following categories
of contiguous zones are to be found in state practice:

158 M. McDougal and W. Burke, supra, n. 8, at p. 583.

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(Vol. 19, No. 4

anti-pollution; and
continental shelf.

customs, fiscal, immigration, sanitation;
liquor;
fishing;

(1)
(2)
(3)
(4) continental and national defense;
(5) naval manoeuvers;
(6) nuclear tests;
(7)
(8)
While Article 24 now appears to have limited customs, fiscal,
imnigration, and sanitation regulatory zones to twelve miles, it
will be recalled that customs enforcement historically has been
tolerated beyond that distance in important precedents. The U.S.
attempts to enforce prohibition required broad claims for juris-
diction, some beyond twelve miles. These precedents are now
invoked by states such as Canada. 59

Regulation of fishing has been a perennial source of dispute
over the location and width of territorial waters and now appears
to be accepted within twelve miles. Control of fisheries is the
core issue in most contemporary cases of claims to sovereign or
near-sovereign exclusive jurisdiction beyond twelve miles. Claims
to control fisheries have reached the point where disavowal of
the intention to exercise full sovereign rights beyond twelve miles
is taken as a welcome sign of moderation.10

It

is significant that Canada invokes rights of self-defense
in the rationales of her Canadian Arctic claims. Canada apparently
believes that the United States and other great powers have
provided precedents for claims to control access to the high seas
that sustain her anti-pollution measures. Prominent in discussions
of contiguous security zones is that claimed by the American
Republics in the Declaration of Panama. This claim was based
on the contention that this measure of continental self-protection
reflected an “inherent right” to those waters adjacent to the
American continent, which they regard as of primary concern and
direct utility in their relations, “free from the commission of any
hostile act by any non-American belligerent nation…,.”

It is noted by commentators that the Declaration of Panama
has been widely accepted and applauded by governmental decision-

159 Ibid., at pp. 585-89.
160 See supra, n. 120. See also: M. McDougal and W. Burke, supra, n. 8, at
pp. 642-663; M. Whiteman, (1965) 4 Digest of International Law, at pp. 932-
1240; D. Johnston, The International Law of Fisheries, supra, n. 8.

161 “International Conferences of American States, 193340”, (1st Supp., 1940),

at p. 334; reprinted in (1940) 34 A.J.I.L. Supp. 17.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

makers and publicists.”” However, its relevance to contemporary
contiguous zones may be doubted. The Declaration was an invoca-
tion of neutral rights in time of overt war. Granted, a number of
situations engendering conflict over claims to access to the seas
are coloured by unresolved questions of past wars and the realities
of present, undeclared hostilities approximating major armed
coercion. But the pattern of claims with respect to contiguous zones
is concerned mainly with the law of peace, not war. It might be
added that the sweeping claims of the American Republics were
ignored by the belligerents when it became necessary, and rendered
ludicrous by Nazi submarines well before Pearl Harbor.6 3

More relevant are contemporary national claims to control
access to adjacent waters for reasons of national security. Among
these claims, the most noteworthy in all respects are those of
the United States. Since 1950, the U.S. has maintained Air Defense
Identification Zones (ADIZ) extending several hundred miles out
into the Atlantic and Pacific. Within these zones, all foreign aircraft
bound for the United States are required to make position reports
to a U.S. aeronautical facility when they are “not less than an hour
and not more than two hours average cruising distance via the
most direct route from the United States”. 6 4 Interestingly, Canada

162M. McDougal and W. Burke, supra, n. 8, at pp. 590-91.
163 S.E. Morrison, The Two-Ocean War, (1963), at pp. 21-31. D.P. O’Connell

observes:

It has been pointed out that the zone at one point extended 1,200 miles
from the coast of Florida. Great Britain disputed the pretension, and it
does not seem to have translated itself into decisive action: (1965) 2 Int’l.
Law 704.

164W. Bishop, Int’l. Law 631, states:

Pursuant to an Act of Congress, since 1950 the President through appro-
priate officials has issued regulations establishing domestic and coastal
air identification zones within which aircraft (with certain specified
exception) must identify themselves. These zones extend several hundred
miles into the Atlantic and Pacific. Canada provides for similar zones
(CADIZ). The United States regulations specify that “The pilot in com-
mand of a foreign aircraft shall not operate an aircraft into the United
States without: (1) Making position reports as prescribed for United
States aircraft…, or (2) Reporting to an appropriate aeronautical facility
when the aircraft is not less than one hour and not more than two hours
average cruising distance via the most direct route, from the United
States. Thereafter, reports shall be made as instructed by the facility
receiving the original report.” By a letter of December 31, 1954, the Depart-
ment of Commerce interpreted this as follows: “Foreign aircraft operating
in a coastal ADIZ are required to comply with the regulation only if they
are entering the United States, i.e., a foreign aircraft en route from
Havana to Halifax might conceivably fly through the Atlantic ADIZ with-
out being subject to any… [such] restriction. It should be noted that

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[Vol. 19, No. 4

maintains a similar system, CADIZ, which is more restrictive than
that of the U.S. because it applies to all aircraft traversing the zone,
whether bound for Canada or not.”0 5 It will be recalled that Prime
Minister Trudeau invoked the ADIZ and CADIZ precedents in his
press conference of April 8, 1970.116

The United States also has long controlled access to sea lanes
adjacent to its coast for limited periods of exclusive U.S. military
use. This falls into the broader pattern of claims to temporary
exclusive use of high seas areas for naval and military exercises
and other security purposes.0 7

Nuclear testing has required temporary interference with access
to ocean areas and produced precedents now invoked by Canada. 0 8
It is particularly relevant that U.S. tests were justified on the
two-fold basis that they were vital to the security of the United
States and to the maintenance of a world security balance.0 9 In

the departure point has no bearing on the applicability of the regulation.
Bishop cites: U.S. Naval War College, (1957) 51 International Law Situation
and Documents, 1956, at pp. 578-600; Note, Air Defense Identification Zones,
(1958) 4 N.Y.L.F. 365; Martial, State Control of the Air Space over the Terri-
torial Sea and the Contiguous Zone, (1952) 30 Can. Bar Rev. 245; Murchison,
The Contiguous Air Space Zone in International Law, (1956); Head, ADIZ,
International Law and Contiguous Airspace, (1960) 2 Harv. Int’l. L. Club Bull.
28, reprinted in (1964) 3 Alta. L. Rev. 182; Brock, Legality of Warning Areas
as Used by the United States, (1966-67) 21 JAG J. 69; M. McDougal and W.
Burke, supra, n. 8, at p. 593.

165 McDougal and Burke state:

In the United States law, the planes obliged to report must be destined
for the United States. Canadian regulations are more extensive in this
respect, requiring position reports whether or not the plane is bound
for Canada: Supra, n. 8, at p. 593.

McDougal and Burke cite: “Security Control of Air Traffic Order”, Air
Navigation Order, Series V, No. 14, in Air Laws and Treaties of the World,
87th Cong., 1st Sess., (1961), at pp. 323, 324.

166Trdeau Press Conference, supra, n. 110, at p. 23.
167 M. McDougal and W. Burke, supra, n. 8, at p. 592.
16′ McDougal and Schlei, “The Hydrogen Bomb Tests in Perspective: Lawful
Measures for Security”, in Studies in World Public Order, (M. McDougal and
Associates, eds., 1960), at p. 763.

169 “As expectations of imminent violence in the world arena have become
ever more realistic and intense, many of the nations of the free world have
organized themselves, under proper provisions of the U.N. Charter, into
regional groupings for their more effective self-defense. The United States
has undertaken its program of atomic and thermonuclear weapons develop-
ment to ensure that these coalitions of free nations are not lacking in the
retaliatory power which may deter aggression, or in the weapons of self-defense
if deterrence fails”: Ibid., at pp. 812-813. See: D.P. O’Connell, (1965) 2 Int’l.
Law 710.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

this respect, they parallel Canada’s Arctic claims. However, given
the grudging acquiescence of the international community to the
U.S. tests and the dangers they created for the environment, Canada
has an advantage in that its arguments paralleling those justifying
the U.S. nuclear tests are made in the cause of protecting rather
than endangering the environment.

Canada makes this point most explicitly in its Note of April 16,
1970, wherein special attention is called to the Amchitka Island
test of October 1969 during which the United States warned away
shipping within a fifty-mile radius. 7 To be sure, the actual period
of exclusion from test areas has been limited, although possible
danger may remain within such areas. But the rationales for nuclear
testing supply precedents which Canada can invoke.

Finally, there is the question of precedents for anti-pollution
measures such as those now established by Canada. It is instructive
to review the treatment of this subject by McDougal and Burke
in 1962.

… If it were practicable for the coastal state to enact and enforce
prohibitory regulations applicable in adjacent seas, there would seem to
be sufficient justification for considering this permissible under general
community policy. To the extent, therefore, that a coastal state could
exercise sufficient effective control it would be appropriate to permit
it to prohibit the discharge of oil that would, or could reasonably be
thought to, damage marine life and property in the vicinity. Reasonable
enforcement would include apprehension of vessels infringing the prohi-
bition and imposition of a penalty on such vessels.171
McDougal and Burke continue –

eight years before the Canadian

Arctic Waters Pollution Prevention Act:

If such unilateral prescription is not practicable, and it does appear to be
too formidable and costly an operation for general adoption as an effective
measure, methods of ensuring discharge in areas not likely to threaten
harm to coastal interests would appear to be in the common interest. It
would be acceptable also to seek to require that ships install any avail-
able and effective equipment for reducing or eliminating the deleterious
effects of the substance discharged.172
It remains to be seen whether Canada’s unilateral anti-pollution
measures will be “practicable”. Meanwhile, it appears that the focus
of states concerned with maritime pollution has been largely on
international regulation through voluntary compliance with inter-
national conventions. The 1954 London Convention for the Prevention

170 See supra, n. 146.
171 M. McDougal and W. Burke, supra, n. 8.
172 Ibid.

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[Vol. 19, No. 4

(IMCO).

IMCO became operative

of Pollution of the Sea by Oil, signed by forty-two states, provides
standards for acceptable levels of oil and oily-mixture discharge
and prohibits specific types of oil discharge. A fifty-mile control
zone for the prevention of oil pollution is authorized.17 Respon-
sibility for coordinating implementation by parties to the 1954
London Convention was given to the Intergovernmental Maritime
Consultative Organization
in
1957.174 IMCO assemblies have met a number of times since 1959
and have produced rules purporting to strengthen the regulation
of maritime oil pollution. The 1962 London Conference increased
restrictions of spillage and oil discharge. Relevant to Canada’s
present claims was an extension of the prohibited zone from fifty
to one hundred miles for nations adhering to the convention.1 ”
In 1969, two IMCO-sponsored conventions were proposed. The
International Convention Relating to Intervention on the High Seas
in Case of Oil Pollution Casualties begins to attack the problem
engendered by the fact that previous conventions left enforcement
with the flag state.1 ‘ The 1969 Convention on intervention permits
limited intervention at sea by a coastal state to “prevent, mitigate,
or eliminate grave and imminent danger… following upon a
maritime casualty”.17 But the right of intervention is hedged with
requirements for notifications and consultations. Primary respon-
sibility remains with the flag state.17 The second convention, the
International Convention on Civil Liability for Oil Pollution Damage,
extends the amount of financial liability for damage from oil spills,
without proof of fault. Mandatory insurance
is set for ships
carrying over 2,000 tons of oil, but liability for any one incident
is limited. 17’ The United States signed these 1969 IMCO conventions.
Canada, as well as such maritime states as Australia, Japan, the

173 12 U.S.T. 2989; T.IA.S. 4900; 327 U.N.T.S. 3.
174M. Whiteman, 4 Digest of International Law, at pp. 706-708; Legault,
supra, n. 6, at pp. 212-13; Bilder, supra, n. 6, at pp. 15-16; Milsten, supra, n. 6,
at pp. 1186-87; Sutton, supra, n. 6, at pp. 54-55.

175Legault, supra, n. 6, at pp. 212-13; Bilder, supra, n. 6, at pp. 15-16; Wilkes,
supra, n. 6, at pp. 504-505; Milsten, supra, n. 6, at pp. 1186-87; Green, supra,
n. 6, at p. 468; Sutton, supra, n. 6, at p. 55.

176 (1970) 9 I.L.M. 25; Legault, supra, n. 6, at pp. 213-14; Green, supra, n. 6,
at pp. 470-73; Neuman, supra, n. 6, at pp. 353-54; Milsten, supra, n. 6, at p. 1187;
Sutton, supra, n. 6, at p. 56.

177 (1970) 9 I.L.M. 25.
‘7 8 Legault, supra, n. 6, at p. 213; Neuman, supra, n. 6, at p. 353; Milsten,
supra, n. 6, at p. 1187; Green, supra, n. 6, at p. 471; Sutton, supra, n. 6, at p. 56.

’79 (1970) 9 I.L.M. 45.

1973]

LAW OF THE SEA IN THE “CANADIAN” ARCTIC

Netherlands, Liberia, Greece and the Scandinavian states, did not
sign them.180

The 1954 London Convention and the 1962 and 1969 IMCO
conventions do not authorize the anti-pollution program instituted
by Canada. At present, international practice would appear to
accept such anti-pollution measures only within the twelve miles
of the 1958 Geneva contiguous zone. The U.S. based its 1970
pollution control measures on the Article 24 zone, apparently
into “sanitary” regulations.,-8 Thus
assimilating such measures
Wulf asserts that, “Quite clearly, the exercise of pollution competence
over foreign vessels on the high seas at a distance in excess of
twelve miles is contrary to established norms of international
law.” ‘ 82 Moreover, Wulf contends, even within the twelve-mile limit
anti-pollution measures must meet the requirements of reasonable-
ness, i.e., there is no right of sovereign, exclusive anti-pollution
control 83
that
Canada’s lead has not been followed thus far by other states
claiming anti-pollution contiguous zones beyond twelve miles. 81
The foregoing impressions merely underscore Canada’s explicit
acknowledgement that its claim to an anti-pollution contiguous
zone was not in conformity with the “old” law of the shipping
interests, but rather was an attempt to establish new law to
protect the interests of coastal states. This attitude is reflected
in withdrawal of this issue from the jurisdiction of the Inter-
national Court of Justice. It is also reflected repeatedly in connection
with Canada’s refusal to sign the IMCO conventions.85

It further appears from Wulf’s recent article

18 0 Milsten, supra, n. 6, at p. 1187; Green, supra, n. 6, at pp. 473-76; Sutton,

n. 6, at pp. 56-61.

is’ Wulf, supra, n. 6, at pp. 537-38.
182 Ibid., at p. 538.
183 Ibid., at pp. 538-39.
184 Ibid., at pp. 538-39. Wulf says:

To establish a zone of fixed breadth would be unwise and probably
unnecessary… With all the variables which determine the impact of a
spill on a coastal state, an inflexible standard would not meet the interests
of a coastal state. Further, a right to intervene should not be dependent
upon a claim to a specified zone but rather upon the realistically perceived
dangers of pollution a maritime casualty presents to the coastal state no
matter when the casualty occurs: Ibid., at p. 545.
185 On Canada’s objections to the IMCO conventions, see: Department of
Transport, Statement by the Canadian Minister of Transport to the Brussels
Conference on Pollution of the Sea by Oil, November 10, 1969; Green, supra,
n. 6; Beesley, supra, n. 6, at p. 8.

Legault concludes:

Even as amended, however, the London Convention for the Prevention

McGILL LAW JOURNAL

[Vol. 19, No. 4

Examination of the relevance of claims, trends in decision, and
modes of authoritative decision relative to the Continental Shelf
have a special place in analyses of Canada’s anti-pollution regime.
Despite Canada’s invocation of the 1945 Truman Declaration on
the Continental Shelf ‘s6 as a precedent for its claim, the extent
to which this precedent is relevant and supporting is far from clear.
Two issues arise. First, how relevant is the subject matter of control
of the resources of the continental shelf to claims to control of
access, and competence to prescribe and apply authority primarily
on the surface of contiguous zone waters? Second, what does the
history of the
law-making process for the continental shelf
demonstrate that would support Canada’s approach to the process
of developing international anti-pollution law?

As regards the first issue, the claims are of quite a different
nature. As application of the McDougal-Burke categories has
revealed in the preceding analysis, the thrust of the Canadian
claims to a contiguous zone does not appear to reach directly
the claim to exclusive appropriation of resources in adjacent
submarine areas. This latter category would be appropriate to
continental shelf claims. Canada already has complete jurisdiction
and control over its continental shelf as a matter of application of

of Pollution of the Sea by Oil has serious defects (quite apart from the
fact that it applies, of course, only to contracting parties). The central
defect relates to enforcement and involves problems of both detection
and jurisdiction. Detection of the source of a particular discharge of oil
presents great difficulties which can be only partially overcome by visual
surveillance in view of the vast areas to be policed and the rapidity with
which oil slicks break up into similar particles. Various suggestions have
been made for ‘labelling’ or ‘tagging’ tanker cargoes but such solutions
to the identification problem have not yet been adopted. A further problem
would in any event remain with regard to establishing whether or not
a particular discharge exceeded the limits permitted under the 1954 con-
vention. These difficulties are compounded by the fact that prosecution
for offences beyond the territorial sea is at the exclusive discretion of
the flag state, which may or may not deem sufficient such evidence as
can be supplied by the coastal state. Finally, another major weakness of
the convention is that it does not make compulsory the adoption of
techniques (such as the ‘load-on-top’ system) and the use of equipment
(such as shipboard separators and oil reception facilities at ports) which
could help considerably to eliminate the deliberate discharge of oil and
oily mixtures into the sea: Legault, supra, n. 6, at p. 213.

See also: Morin, Le progrgs technique, la pollution et l’dvolution rdcente du
droit de la mer au Canada, particuli~reinent b l’dgard de l’Arctique, (1970)
8 Can. Yb. Int’l. L. 158 (hereinafter cited as “Morin”).

186 M. Whiteman, (1965) 4 Digest of International Law, at pp. 752-64.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

the 1958 Convention on that subject and of customary international
law.18 7

To be sure, the Canadian anti-pollution regime reinforces Canada’s
control over appropriation of resources on the continental shelf.
Control of traffic within the zone obviously could affect appropria-
tion operations on the shelf, if permitted by Canada. But this aspect
of the anti-pollution controls appears somewhat superfluous. The
true relevance of continental shelf law appears to be in the nature
of the competences claimed and in lessons it has recorded with
respect to unilateral claims to contiguous zones.

As to the nature of the competences claimed by the United
States with regard to the continental shelf, President Truman’s
Proclamation asserted that, “The United States regards the natural
resources of the subsoil and sea bed of the continental shelf
beneath the high seas, but contiguous to the coasts of the United
States as appertaining to the United States, subject to its jurisdiction
and control”. 88 A White House press release of September 28, 1945
commented:

While asserting jurisdiction and control of the United States over the
mineral resources of the continental shelf, the proclamation in no wise
abridges the right of free and unimpeded navigation of waters of the
character of high seas above the shelf, nor does it extend the present
limits of the territorial waters of the United States. 8 9
The Truman claim was exclusive, comprehensive, and continuous
with respect to everything necessary for jurisdiction and control
over the continental shelf. The U.S. specifically disavowed any
claim to control access to, or prescribe with respect to, any portions
of the high seas. 90

The comparability of the Truman and Canadian claims as, in
effect, enlightened unilateral initiatives to develop customary inter-
national law, is a complex matter. The U.S. initiative profits by
comparison, in that it was made in a legal vacuum. The empirical
problems were novel and the legal situation was very close to
that of a tabula rasa.9′ The Canadian claims, on the other hand,

187 Ibid., at pp. 920-31. The Convention on the Continental Shelf entered into

force June 10, 1964: U.S.T.IA.S. 5578; 15 U.S.T. 471.

188 Proclamation No. 2667, “Policy of the United States with respect to the
Natural Resources of the Subsoil and Sea Bed of the Continental Shelf”, Sept.
28, 1945, 10 Fed. Reg. 12303; 3 C.F.R. 1943-1948 Comp., at p. 67; (1954) 13 Dep’t.
State Bull. 485, quoted from M. Whiteman, (1965) 4 Digest of International
Law, at p. 757.

189 Ibid.
190M. McDougal and W. Burke, supra, n. 8, at pp. 638, 652.
191 M. Whiteman, (1965) 4 Digest of International Law, at pp. 740-52.

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(Vol. 19, No. 4

do confront existing international law. The 1954 London and 1962
and 1969 Brussels Conventions do provide a body of anti-pollution
law, no matter how inadequate Canada may consider it. In his
April 8, 1970, press conference, Prime Minister Trudeau stated
that, “where no law exists, or where law is clearly insufficient,
there is no international common law applying to the Arctic
seas; we’re saying somebody has to preserve this area for mankind
until the international law develops”. 192 While one may agree as to
the insufficiency of the international law of pollution, it cannot
be said that “no law exists”.

There remains the question of unilateral versus international
initiatives to develop law for the oceans. The treatment of this
subject in the literature on the Canadian claims shows a tendency
to regret the Truman Continental Shelf initiative. Contemporary
publicists seem to feel that the U.S. claims were not productive
of good precedents or of a healthy climate in which to develop
an adequate law of the oceans. 193

In retrospect, it is abundantly clear that many, if not most,
of the problems triggered by the Truman Proclamation derived
from over-enthusiastic acceptance of the U.S. claims. Increasingly,
states responded to the Truman initiative by claiming sovereignty
over continental shelves, superadjacent waters and fisheries –
drastic extensions of the Truman claims both with respect to
exclusivity and subject matter embraced.0 4 Serious and compar-

192 Supra, at p. 355.
193See “Oral Proceedings” section of (1971)

50 Ore. L.R. 4, at pp. 4-62,
following L.C. Green’s article, supra, n. 6: at pp. 492 (J.L. Jacobson), 495 (L.C.
Green), 497 (J. Carter), 498 (L.C. Green).

194 Bishop provides the following summary:

Mexico, the first to follow, with a Presidential Declaration of October 29,
1945, referred to the need to protect mineral and fisheries resources of
the continental shelf and waters off Mexico, and stated: “the Government
of the Republic recovers all the continental shelf or platform adjacent to
its coastline and each and every natural resource, known or unknown,
found therein, and is moving towards that vigilance, use and control in
the zones of fisheries protection necessary for the conservation of such
a source of well-being.” It added that this action, “does not imply that
the Government of Mexico intends to fail to recognize legitimate rights
of third parties on a basis of reciprocity or that the Government of
Mexico intends to affect legitimate rights of free navigation on the high
seas, since the only thing it seeks is the conservation of these resources
for the national, the continental, and the world well-being.” Implementing
Mexican decrees and legislation appear to be confined to the resources
of the subsoil.

Continental shelf claims limited to sea bed and subsoil were soon made
by Australia, Bahrein, Brazil, Dominican Republic, Guatemala, Iran, Israel,

19731

LAW OF THE SEA IN THE “CANADIAN” ARCTIC

atively successful codification efforts at Geneva in 1958 proved
inadequate in the face of the variety and persistence of claims
related, to varying degrees, with the original Truman continental
shelf initiative. In
the light of this record, some contemporary
publicists apparently believe that the Truman Continental Shelf
precedent was unfortunate.

In mitigation of this judgment it should be pointed out that
the United States has consistently opposed claims to exclusive
sovereign powers beyond territorial seas, denied their justification
in the Truman precedent, and worked for resolution of outstanding
issues through international conventions.’ 95
Indeed, it may be
argued that the more recent difficulties encountered by the U.S.
in championing the convention approach to the law of the oceans
may provide reason to reconsider the advantages of the unilateral
Truman approach, which at least obtained the U.S. objectives
without interfering with -freedom of the seas. This, of course, is
what Canada claims to be doing.’90

(iii) Appraisal and Recommendation

In summary, trends in decision with respect to claims

to
control access to the high seas reveal strengths and weaknesses
in Canada’s rationale for her 1970 claims. Favouring Canada is
the fact that such claims have received historic and contemporary
acceptance to a point that far exceeds the limited definition of con-
tiguous zones in Article 24 of the 1958 Geneva Territorial Sea and
Contiguous Zone Convention. Of further importance for Canada’s
position is the fact that such claims have been judged to be
reasonable in terms of vital interests of the claimant state and,
to varying degrees, of all or part of the international community.

Kuwait, Nicaragua, Pakistan, Philippines, Saudi Arabia, Trucial Sheik-.
doms, Venezuela, and the United Kingdom (for Bahamas, British Hon-
duras, Falkland Islands, and Jamaica but not for the homeland), and other
states. Continental shelf claims including claims to sovereignty over waters
above the continental shelf, or fisheries therein, have been made by
Argentina, Chile, Costa Rica, Honduras, and Peru. Ecuador, Panama,
and Salvador claim 200 miles of waters off their shores for fisheries
purposes, while Chile and Peru also adopt this figure. Iceland claims
fisheries rights over specified areas extending out to about 12 miles from
shore. Korea and U.S.S.R. have closed large areas of adjacent sea to
foreign fishing (except under special permissions): Bishop, supra, n. 124,
at p. 640.

195 M. Whiteman, (1965) 4 Digest of International Law, at pp. 763-64, 842-71,

920-31.

196 See: Trudeau Press Conference, supra, n. 110; Canadian Note, April 16,

1970, supra, n. 146.

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[Vol. 19, No. 4

However,

tend

two aspects of the relevant precedents

to
distinguish them from Canada’s claim and thereby weaken their
supportive character. First, the general trend has been towards
tolerance of contiguous zones of limited duration, e.g., naval ma-
neuvers, nuclear tests; or of permanent zones wherein limited
functions were carried out, e.g., liquor control. A permanent conti-
guous zone, wherein fairly comprehensive measures are undertaken
affecting virtually all traffic and activity, goes beyond the pre-
cedents except for ADIZ and CADIZ. 1″T If this is a fair reading
of contemporary trends in international law, it may be necessary
to go to the lengths that Canada has indeed gone in equating
anti-pollution measures with self-defense measures under the law
of war. This extreme formulation will be considered after comple-
tion of the analysis in terms of the norms more usually applied
to claims to territorial waters and contiguous zones.

Second, most claims to contiguous zones have not been made
with respect to subjects that were under, as it were, competitive,
regulatory efforts by international conventions. Claims to control
access to the high seas encountered generalized opposition and
scrutiny as challenges to the presumptive rights of freedom of
the seas. But, in the case of Canada’s claims, the opposition is not
only generalized, it focuses on the specific objection that what
Canada seeks to achieve is already being sought by an international
regime that will be progressively more effective if, inter alia,
unilateral initiatives such as Canada’s do not undermine it.

These two points of difference between precedents

invoked
by Canada and Canada’s actual claim result in Canada being
depicted as a state that seeks to establish a permanent, contiguous
zone dealing quite comprehensively with activities therein, contrary
to international law and inclusive international efforts to improve
that law. This characterization will be hard for Canada to overcome.
But, given the rapidly changing situation, both of the problems
and the law of the sea, a negative verdict on Canada’s claims may
not stand up for long. On the one hand, Canada’s implementation
of her claims may strike other interested states as reasonable and
worthy of acceptance. On the other hand, hopes for resolution of
the problems of pollution control on the seas by international
conference may prove unfounded. Enlightened unilateralism may
turn out to be the only sensible strategy for coastal states. A
further look at the implications of Canada’s implementation of its
Arctic regime is in order.

19 7 Supra, at pp. 488-90.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

F. Canada’s Claims to Prescribe and Apply Authority

for Canadian Arctic Waters

(i) Clarification of Policy

It

is important to observe the distinction between claims to
competence to prescribe authority for contiguous zones and the
closely related claim to competence to apply authority therein.
Increased transnational interdependence requires states to prescribe
with respect to activities occurring completely outside of their
territorial jurisdiction but having significant and sometimes dele-
terious effect within their jurisdiction. In such cases, competence
to prescribe is not accompanied by competence to apply authority
in enforcement of such prescriptions at the place where they are
violated. Moreover, the history of the law of the sea is marked
by the problem of ships or persons which allegedly violated a
coastal state’s prescriptions within its jurisdiction, but profited
by the modest dimensions of territorial seas and limited contigu-
ous zones to escape enforcement measures.

Additionally, it must be observed that the accelerating trend
towards far-reaching claims to contiguous or even exclusive sovereign
zones in the high seas by states possessed of insufficient powers
to enforce them underscores the distinction between competence to
prescribe and competence to apply authority.19 Finally, the forms
of enforcement actually employed by a state claiming competence
to apply authority in a contiguous zone will obviously be evaluated
in the process of determining the overall reasonableness of this
intervention into the interactions of the maritime environment.
The distinction between competence to prescribe and competence
to apply authority is made by McDougal and Burke. Their discussion
reveals that the distinction is either rejected, misunderstood, or
not perceived by many practitioners and publicists. 199 With respect
to competence to prescribe, they state that, “the honoring and
protecting of claims by states to control access to [contiguous]
waters, for all the various purposes discussed.., does in fact confer
upon particular states a competence to prescribe certain particular
policies with which vessels must comply while in such waters”. 20 0
They add that “the prescription by coastal states relates to the

198 For example, the claims of Costa Rica, El Salvador, Panama, Ghana,
and Guinea as described in M. Whiteman, (1965) 4 Digest of International Law,
at pp. 20-35.

199 M. McDougal and W. Burke, supra, n. 8, at pp. 576-77, 608-12, 621-23.
200 Ibid. Emphasis added.

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[Vol. 19, No. 4

events occurring in the contiguous areas and not merely to those
within the waters, or upon the land, subject to its more compre-
hensive authority”.

The McDougal and Burke position is at odds with the view
that an area of the globe is either subject to the sovereign competence
of a state or not. Therefore, claims to jurisdiction in areas not
purportedly within a state’s sovereign domain, as in contiguous
zones, “are in fact not so much rights, as powers – which the
coastal state may lawfully exercise if it can, but which foreign
vessels are not fundamentally obliged to submit to, except in so far
as they must”.20 1 This formulation by Sir Gerald Fitzmaurice
concludes:

International practice allows, or – more probably –
tolerates that the
coastal State should exercise certain limited powers of control in the
contiguous zone in order to enable it to prevent eventual infringement
within its territory or territorial waters of certain of its laws. 202
Two aspects of this debate emerge as important issues in the
developing law of the sea. First, must jurisdiction be either terri-
torial, or at least, assimilable into territorial jurisdiction on some
theory of “eventual” effect of extra-territorial acts? Or, may juris-
diction range over a spectrum from exclusive comprehensive
competence (territory, including territorial waters), through partial
exclusive competence (contiguous zones), to the inclusive regime
of the high seas? Applied to Canada’s claims, are they tolerable
only to the extent that they are related to “eventual” violation
of Canada’s laws in territory that is clearly Canadian? Or, as Canada
obviously intends, does Canada have the competence to prescribe for
contiguous zones beyond her territorial waters, with the result
that prohibited acts are illegal where they are committed, irrespective
of their eventual effect on Canada?

Second –

and this leads to the second category of competences
distinguished –
is respect for jurisdiction in contiguous zones
simply a function of the capability to enforce prescriptions? The
issue is presented starkly by Fitzmaurice:

But the foreign vessels are not obliged, fundamentally and as a matter
of law, to submit to this control if it can avoid or evade it – whereas in
the territorial sea, and subject to the right of innocent passage and certain
other limitations, the foreign vessels must, and are legally obliged, to
submit to the legitimate and reasonable controls of the coastal State. In

201 Fitzmaurice, The Law and Procedure of the International Court of Justice,
I, 31 Brit. Yb. Int’l. L. 371, at p. 378;
2 02 Fitzmaurice, supra, n. 201, at p. 379; quoted in M. McDougal and W.

1951-54: Points of Substantive Law –
quoted in M. McDougal and W. Burke, supra, n. 8, at p. 608.

Burke, supra, n. 8, at p. 609. Original emphasis.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

short, in the territorial sea, the foreign is found voluntarily to submit,
whereas in the contiguous zone he is found to do so only if compelled 2 03
Applied to Canada’s claims

in Arctic waters, this raises the
question whether Canada must contemplate enforcement against
resisting parties who assume that “as a matter of law” Canada’s
prescriptions are nullities, of importance only
in circumstances
where involuntary compliance can be “compelled”.

(ii) Trends in Decision

The evidence of state practice in support of claims to control
access to contiguous zones tends to support claims to prescribe
and to apply authority. This practice is most clear with respect to
customs and revenue zones wherein certain acts are made unlawful
under coastal state law, as recognized by Article 24 of the 1958
Geneva Territorial Sea and Contiguous Zone Convention.24 Further
support is found in
the precedents for security zones previously
mentioned.20 5 However, it must be admitted that prescriptions which
are largely confined to occasional and limited exclusion from
access to security or manoeuver areas do not appear to furnish
much support for the claim to prescribe authority in contiguous
zones. Thus, claims to prescribe fishing regulations beyond twelve
miles have met with much resistance and would not appear to be
accepted in state practice. 0

20 3 Fitzmaurice, supra, n. 201, at p. 379; quoted in M. McDougal and W.

Burke, supra, n. 8, at p. 622.

204 Supra, at pp. 363-64.
2 0 5 Supra, at pp. 488-90.
2 06M. Whiteman, (1965) 4 Digest of International Law, at pp. 1184-88 (re
controversies over claims by the Republic of Korea); 1198-1209 (Chile, Ecuador
and Peru).

Iceland and the United Kingdom clashed over Iceland’s claims to a 12-mile
limit, 1958-61. See: M. Whiteman, (1965) 4 Digest of International Law, at pp.
1154-74. A 1961 settlement was terminated by Iceland in 1972 and a fifty-mile
fisheries limit was put into effect on September 7, 1972. On April 14, 1972, the
United Kingdom took her objections to Iceland’s fifty-mile claims to the
International Court of Justice. The Federal Republic of Germany joined in
the suit. On August 18, 1972 the I.C.J. ruled that the British and West German
trawlers can continue fishing within the area of Iceland’s fifty-mile limit on
a provisional basis. In its ruling, the court called on Iceland to refrain from
taking any measures against British and West German vessels fishing outside
the present 12-mile limits. At the same time, the court said Britain should
limit its annual catch in Icelandic waters to 170,000 tons, and West Germany
to 119,000 tons. The international tribunal said its ruling could be reviewed
at any time before August 15, 1973. Iceland rejects the jurisdiction and ruling
of the I.CJ. in this matter, claiming its obligation to adjudicate it ceased

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It is possible to demonstrate that there is wide acceptance
by publicists of coastal state competence to prescribe in contiguous
zones. 20 However, if one eliminates from the consensus of the
experts statements relating to a limited, twelve-mile contiguous
zone, statements relating to narrow functions such as customs
control, and statements relating to somewhat vague security zones,
there appears only modest support for the right of coastal states
to prescribe authority for the contiguous zone on a continuing
basis and with the degree of comprehensiveness envisaged in the
Canadian initiatives.

As to enforcement of prescriptions made for contiguous zones,
McDougal and Burke contend that “state practice exhibits a high
consensus that states do have a competence to apply authority
their
in contiguous zones which is fully adequate
established competence to prescribe”. 20 They find that:

to secure

With some exceptions, the same legislative or administrative enactments,
honored in reciprocal claim and mutual tolerance, which prescribe the
policies for interactions in contiguous areas also contain provision both
for enforcement, as by seizure and arrest, and for punishment of violation,
as by fine or by the more severe penalty of confiscation. 209

The McDougal and Burke view is, once again, supported by the
record of state practice recalled in considering claims to control
access to contiguous zones. As they recognize, this view is not
supported by the modest provisions of the 1958 Geneva Convention
on the Territorial Sea and Contiguous Zone, which “limits coastal
competence principally to such minor measures as surveillance,
inquiry and search”.210

The record of state practice seems to reveal two attitudes
towards jurisdiction over contiguous zones, much as it shows
two positions over the maximum extent of the contiguous zone.

when it gave notice that it considered the 1961 agreement had been terminated.
See: “Court Voids New Iceland Fishing Ban”, Washington Post, August 18, 1972,
A, at p. 18, col. 1; and “Iceland Extends Limits, ‘Cod War’ Threatened”,
Washington Star News, September 1, 1972, A, at p. 5, cols. 1-2.

See generally: Iceland, Ministry for Foreign Affairs, Fisheries Jurisdiction
in Iceland, (Reykjavik, February 1972); Permanent Mission of Iceland to the
United Nations, Statement by His Excellency Einar Agustsson, Minister for
Foreign Affairs of Iceland, in the General Debate of the Twenty-Seventh
Session of the General Assembly of the United Nations, Friday, 29 September
1972.

207 M. McDougal and W. Burke, supra, n. 8, at pp. 613-14, and authorities

cited therein.

208 Ibid.
209 Ibid.
210 Ibid.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

The narrow view, that of the 1958 Geneva Convention, would
restrict contiguous zones to twelve miles, would restrict the func-
tions therein controlled, and would limit competence to apply
authority in enforcement. The liberal view, emphasizing state
practice rather than the results of the 1958 Geneva Conference,
would accept any limits reasonably related to the purposes of a
contiguous zone, would accept security and perhaps other functions
not included in Article 24 as proper subjects for prescription,
and would expect that enforcement would take such familiar forms
as seizure, arrest, fine and confiscation.

There remains another category of enforcement which has
apparently not been widely discussed in the literature. In remote
and hazardous regions, a coastal state may support its prescriptions
in a contiguous zone by denying vital assistance to violators. In
the case of the Canadian Arctic, denial of assistance from ice
breakers may prove a decisive deterrent against and punishment
for violations of Canadian law. This possibility will be discussed
in connection with the analysis of the Northwest Passage. Another
sanction has been suggested by recent Icelandic practice. This is
to warn possible violators of a contiguous zone regime that they
will be prosecuted if they are obliged by force majeure to put into
ports of the coastal state.2 1′

All in all, trends in decision are not conclusive regarding coastal
state competence to prescribe and apply authority in contiguous
zones. The limited 1958 Geneva Convention view is clearly inade-
quate. It is highly pertinent to the Canadian claims to recall Mc-
Dougal and Burke’s prediction eleven years ago:

211 An Icelandic source states:

If no interim agreement is reached between the U.K. and Iceland, and
Iceland is denied what she claims as her inalienable right to administer
and manage her 50 miles limit, how can she enforce it? Iceland is a
peaceful nation. She has no army or navy and therefore has no means
of “enforcing” the management of the 50 mile limit other than with 5
small coastguard patrol vessels and a few aircraft. With these limited
resources she would merely keep a record of any foreign fishing vessels
poaching in her waters and should any vessel, having contravened her
fishing regulations, have to put into port because of mechanical break-
down, or lack of supplies, the captain of the vessel may be prosecuted
and fined according to Icelandic law. But Iceland will not deny aid to the
sick or supplies to any such vessel. The waters around Iceland are treach-
erous and no foreign fishing vessel can operate in these waters for any
length of time without seeking aid or shelter.

Iceland’s New Fishing Limits, (Whittaker Hunt Public Relations Ltd., 2 Old
Burlington Street, London WIX 2LH, on behalf of the Icelandic Foreign
Ministry, 1972), at p. 6.

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The most likely outcome in future practice would appear to be that states
will continue active enforcement of their coastal laws in contiguous
zones for securing reasonable protection of important, particular interests.
It does not seem probable that states will suddenly convince themselves
that a suspected vessel’s crossing of an imaginary line in the ocean
delimiting the territorial sea is necessary before an exercise of protective
authority can be considered reasonable. From the perspectives of general
community policy, there would appear to be nothing inimical in states
continuing to act, as in the past, to secure their legitimate interests by
exercise of a reasonable authority to apply policy in contiguous areas.212

(iii) Appraisal and Recommendation

As previously noted, Canada’s claims to a contiguous zone are
advanced as a self-defense measure. This justification complicates
the case, raising novel issues of transference of the concepts of the
law of war to the law of peace. Accordingly, it seems best to evaluate
Canada’s claims for a contiguous anti-pollution zone on the basis
of trends in decision in the law of peace. The validity and implica-
tions of the invocation of the right of self-defense will be dealt
with separately.

In terms of the present law of peace, it seems clear that character-
ization of Canada’s claim to an anti-pollution contiguous zone as
either “legal” or “illegal” is unwarranted and premature. This is
the case because both the state of the law and the character and
implications of Canada’s claims are uncertain and in flux. Advocates’
cases have been made for and against the Canadian claims. But
clarification of issues in a controversy which may have major
implications for the emerging law of the sea is presently more
important than scoring legal points.

Moreover, as is the case with respect to the claim to a twelve-
mile territorial sea, the ultimate issues are two: (1) the substantive
merit of the claims; (2) the effects of the claims on the process
of authoritative decision.

On the merits, it

is possible to come to many evaluations,
depending on the content and combination of the variables dis-
cussed. Several models of possible analysis may demonstrate the
complexity of the issues.

Model A might be a conservative analysis. This ultimate guiding
principle remains the freedom of the seas. Conservation and anti-
pollution continue to be important but subordinate values. But the
presumption in favor of maximization of inclusive use of the high
seas remains at the heart of the analysis. Canada’s claim is not au-

21 2 M. McDougal and W. Burke, supra, n. 8, at p. 630.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

thorized by the conventional law of the sea. However inadequate that
law may be thought to be, it stands until there is clear evidence
that it has been overridden by custom – not demonstrable regard-
ing contiguous zones –
or convention, which must await develop-
ments at the coming Law of the Sea Conference.

As to the reasonableness of the claims, analysis of Model A
would hold that the very substantial interests of Canada justify
protection, but not through unilateral control of access, prescription,
and application of authority. The presumption in favor of inclusive
access to and enjoyment of the high seas is not overcome by
Canada’s interests unilaterally defended by a permanent, highly
comprehensive regulation of virtually all significant activities in the
Canadian Arctic.

In conservative analysis, Model A, it will be maintained that
despite the descriptive adjective “Canadian” attached to the waters
of the region in question, they have been and remain high seas,
not “Canadian” in the sense of territorial waters, or in any other
legal sense distinguishable from other portions of the high seas
adjacent to Canada’s shores.

Finally, conservative analysis, Model A, will object to the modality
and degree of interference contemplated in the Canadian claims.
The modality may be likened to wartime inspections and seizures
of neutral vessels: resisted in war, intolerable in peace. The degree
of interference may likewise be compared to wartime naval re-
straints. The area covered by the Canadian legislation is like a
war zone. Every ship of consequence, every activity occurring in
the ocean environment therein, is subject to comprehensive regula-
tion, including exclusion, seizure and punishment by Canada. Such
a regime is unreasonable and arbitrary.

To these arguments on the merits, conservative analysis, Model
A, will add that the effects of the Canadian claims to a contiguous
zone will be destructive to the law-making process. Particularly
in view of Canada’s reputation as a responsible, internationalist
state, this initiative will undercut efforts to resolve maritime environ-
mental problems by international conventions and more effective
international organization. It will encourage less responsible states
to make reckless claims, also based on environmental arguments,
to exclude and regulate shipping and other activities in the previously
free high seas.

However, a liberal analysis, more favorable to Canada, is possible.
In such an analysis, Model B, the presumption against infringement
on the basic principle of freedom of the seas will be relaxed

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(Vol. 19, No. 4

significantly and balanced with a new principle requiring reasonable
protection of the ocean environment. So viewed, the problem
is not one of justifying an exception to an overriding principle,
but of balancing one important principle, freedom of the seas, with
another, environmental protection. Although Canada’s claims are
not authorized by existing conventional law, that law is notoriously
biased towards freedom of the seas. Indeed, the new, equal
principle of environmental protection is not seriously reflected
in the conventional law. The practice of states is seeking to rectify
this state of affairs but lags behind the ever-more-threatening
situation. This is particularly true in the Arctic.

Model B, the liberal analysis, would hold that Canada does face
a clear and present danger to her environment and her vital social
and economic interests. In these circumstances, it might be more
proper to place the presumption against continued claims to
unregulated enjoyment of waters adjacent to Canada, rather than
against claims to protect those waters from irremedial damage –
to the detriment of inclusive world interests as well as exclusive
Canadian interests. If Canadian claims to control access, prescribe
and apply authority are appropriate and proportionate to the
legitimate ends sought, they should be viewed as precursors of
a new, more balanced, law of the sea –
the beginning of customary
international law.

At this point in the construction of a liberal analysis, Model B,
one hesitates. The next item in the calculation of reasonableness
concerns the status and character of the ocean areas affected.
Should the liberal analysis argue on the basis of the unique character
of the Canadian Arctic Waters? Exclusively or in part? If the main
concern is protection of this particular ocean area by building
the strongest case for the Canadian protective regime, it would seem
best to emphasize the unique character. The threat is perceived as
particularly great because of unique features of the area. Perhaps
the legal claim should follow closely the empirical facts and stick
to uniqueness as a central justification for the measures undertaken.
Let us, then, assume that liberal analysis, Model B, claims that
the measures are appropriate for and proportionate to the threat
to the unique Canadian Arctic Waters. At this point, a further
choice has to be made. Must we attribute a legal significance to
the adjective “Canadian” when we speak of these waters? If so,
what significance? If Canada claims a near-exclusive, near-compre-
hensive, competence in dealing with the Arctic waters adjacent to
her shores, acceptance of such a claim will grant a very special
status to the area of the anti-pollution regime. It will not be part

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

of the sovereign territory and territorial waters of Canada, but
it will not be like any ordinary contiguous zone. Thus, both the
physical character and legal status of these waters may be unique.
Whether this uniqueness will be recognized and accepted by other
states is the question?’ 3

213 The following statements may both inform and confuse those desirous

of understanding the legal status of the Canadian Archipelago:

To speak of Arctic sovereignty in a generic sense, with reference to every-
thing north of the Arctic Circle, is to suggest, contrary to all geographic,
climatic, legal and political realities, that there exists a single Arctic
region and that the sovereignty of that region remains somehow unsettled.
In fact, of course, the Arctic comprises many distinct and widely varying
continental, insular and marine regions. So far as the land regions are
concerned, there are few if any questions of Arctic sovereignty which
remain unsettled. While I cannot speak for other Arctic states, I must
say that Canada is aware of no challenge to its sovereignty over the
mainland and islands of the Canadian Arctic. Canada’s sovereignty over
these territories has been established beyond dispute under every test
of law and fact since Canada fell heir to the rights of Great Britain in
the 1860’s and progressively extended its administration to comprise the
vast and complex system which today covers every sphere of activity
throughout the whole of the Canadian Arctic. Similarly there is no ques-
tion as to Canada’s exclusive sovereign rights to explore and exploit the
resources of its Arctic continental shelf. These rights, in the Arctic as
elsewhere, are firmly established under both customary and conventional
international law and flow from Canada’s sovereignty over the lands
adjacent to the shelf areas concerned.

If all these special characteristics are such that the Arctic waters and
ice do not constitute high seas to which the traditional freedoms apply,
what then is the status of these areas and what regime should govern
their use? So far as Canada is concerned, the special characteristics of
the Arctic waters and ice combine to give them a special status – how-
ever defined – which implies special rights and responsibilities for the
Arctic coastal states. Accordingly, for many years Canada has exercised
effective control over the uses of the waters of the Canadian Arctic archi-
pelago and over a wide range of activities carried out on their ice-cover.
Indeed, as was most recently reaffirmed by the Secretary of State for
External Affairs in April, 1970, “Canada has always regarded the waters…
of the Arctic archipelago as being Canadian waters… The present Govern-
ment maintains that position”.

Debates of the Canadian House of Commons, Hansard, April 16, 1970, at

p. 5948; Beesley, supra, n. 6, at pp. 1-2, 5.

Although Canada has always regarded the waters of the Arctic archipelago
as Canadian waters, it should be emphasized that the Arctic waters pollu-
tion legislation is in no way based on and in no way represents an assertion
of sovereignty over the waters concerned. It represents rather a functional
exercise of jurisdiction in response to an objective concrete need, and
it is based on scientific and ecological considerations rather than terri-

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Assuming, then, that from the standpoint of a liberal analysis,
Model B, unilateral action by Canada is broadly justified by the
unique threat to environmental values and the unique physical
and legal character of the ocean areas in question, what of the
mode and degree of interference with inclusive interests in the
area? It may be assumed that the answer will be that the regulatory
measures are all objectively related to the practical requirements
for dealing with the environmental threat. If they prove successful,
they will be justified and beneficial to all concerned. If they
shock those who have become habituated to the freedom and
irresponsibility of the freedom of the seas era, this is not surprising.
One eminently useful purpose of the new Canadian regime is to
cut through indifference and half-measures and produce an effica-
cious regime to protect the ocean environment.

Accordingly, the effect of Canada’s initiative can only be good,
according to liberal analysis, Model B. It will be justified on the
merits for the Canadian Arctic situation, will serve as a good
example for other states with similar problems, and will put the
international community on notice that further delays and half-
measures at conferences on the subject will increasingly result in
conventional law being ignored while customary law does the job.
It is possible for a reasonable observer to find either of these
models of analysis as plausible. Moreover, by shuffling some of
the judgments with respect to the variables other models may be

torial imperatives. Thus the issues raised by this legislation concern not
sovereignty but the right of the coastal state action to protect itself
against a grave threat to its environment.

Legault, supra, n. 6, at p. 219.

It now seems safe to say that the nations of the world have acquiesced
in Canadian claims to sovereignty over these islands and over an un-
determined number of other Arctic islands that have not witnessed the
performance of symbolic administrative acts by Canadian governments.
In consequence, it is now common for international lawyers outside as
well as inside Canada to refer to the “Canadian Arctic archipelago”, and
what is now in question is the precise extent of Canadian sovereignty
in the waters of the archipelago.

Other countries possessing an archipelago, such as Indonesia, the
Philippines, and some Caribbean states, have claimed the right to close
off all archipelagic waters as internal waters and to deny foreign vessels
the right of innocent passage. This kind of sovereignty claim has never
been made by Canada, and, when made elsewhere, it has been rejected
by many states as a violation of the freedom of the high seas.

Johnson, supra, n. 6, at p. 3.
On the ambiguity of Canada’s claims to “archipelago waters”, see: Bilder,

supra, n. 6, at pp. 6-7, 19-20.

1973]

LAW OF THE SEA IN THE “CANADIAN” ARCTIC

produced. But it appears that the persuasiveness of any analysis
of the Canadian claim for an anti-pollution contiguous zone will
rest primarily on their reasonableness in the specific context of
the Canadian Arctic and on the estimate of their impact on the
law-making process. It appears that existing international
law
prescriptions will play only a secondary role in shaping analyses
of these claims.

If this evaluation is correct, the verdict on Canada’s establish-
ment of an anti-pollution contiguous zone must await answers
to at least the following questions:

(1) As activity in the Canadian Arctic increases significantly,
how does the balance sheet read between Canadian interests, U.S.
and other foreign interests, and broad community interests? It is
submitted that an adequate answer to that question at this time
is probably not possible.

(2) How will Canada treat the area of the new anti-pollution
regime? Will it be treated as a virtual extension of Canada or
will it be treated as a contiguous zone subject to limited, functional
regulations?

(3) How will Canada implement her Arctic waters regulations?
What modes and degrees of interference will actually occur –
and
with what effects – with respect to international shipping, fishing,
exploration, and exploitation of mineral
resources, scientific
investigations, military and naval deployment and other important
functions and activities?

(4) What changed conditions will alter everyone’s perspectives
on these issues? Will political, economic, military, technological
and other developments so “overtake” the present issues in the
Canadian Arctic that emerging issues become settled and new
issues take priority?

(5) How successful will initiatives be of the United States
and others to resolve law of the sea issues through global, regional
and functional conventions and, perhaps, new attempts to develop
effective international organizations?

(6) What reception will the Canadian claims to an Arctic

contiguous zone receive:

from the principal Arctic powers;
from the principal maritime powers; and
from coastal powers?

(a)
(b)
(c)
Canada refers frequently to the precedent of the Truman Conti-
nental Shelf initiative of 1945. Will reception of Canada’s claim, in
like manner, bring an embarrassment of acceptance couched in

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[Vol. 19, No. 4

terms and applied in circumstances not intended or welcomed
by Canada?

Implicit in these questions is a recommendation to maintain
an open mind on the Canadian initiative and to observe and evaluate
carefully the unfolding answers to these questions. Equally implicit
is the recommendation to forego last-ditch defense of existing
international law prescriptions which are manifestly inadequate
to the exigencies of the law of the sea in the age of environmental
crisis. Rather than continue such rearguard tactics, the responsible
commentator and decision-maker should be improving his analyses
of the complex factors involved in these issues so as to be able
to play whatever role falls to him in the process of authoritative
decision.

Finally, we recommend that official spokesmen and decision-
makers eschew exaggerated use of legal claims in political-diplomatic
exchanges and that publicists strive to separate the real legal claims
from the legal trappings of political-diplomatic arguments. It strikes
us that the Canadian position would be strengthened by more
restraint in the use of analogies and the invocation of precedents.214
The U.S. position would be strengthened by avoiding apodictic
characterizations of actions as illegal, and by a somewhat more
modest tone regarding the prospects for resolving complex problems
by international conferences and international organizations. 215 In
any event, it is with this problem in view that we turn to considera-
tion of the Canadian claim that its overall policy with respect to
pollution control in the Arctic is an exercise of the right of self-
defense.

IV Canada’s Claim to Self-Defense Measures

In the Summary of the Canadian Note of April 16, 1970, answer-
ing the U.S. objections to Canada’s Arctic claims, it is asserted that:
Canada reserves to itself the same rights as the United States has asserted
to determine for itself how best to protect its vital interests, including in
particular its national security.21 6

214 See supra, n. 146. Invocation of U.S. precedents such as nuclear tests
are of questionable relevance and, inter alia, hardly persuasive vis-&-vis the
many third parties who may have opposed or regretted the U.S. tests.

215 See: U.S. Statement, April 15, 1970, supra, n. 111. As this study shows,
the issues comprising the Canadian – U.S. Arctic controversy involve rapidly
changing material and legal developments. It would be a brave publicist who
would lay down “the law” in these conditions.

216 Canadian Note, April 16, 1970, supra, n. 146, at pp. 1-2.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

The Canadian Note goes on to state at a later point:

The Canadian Government has long been concerned about the inadequacies
of international law in failing to give the necessary protection to the
maritime environment and to ensure
the conservation of fisheries
resources. The proposed anti-pollution legislation is based on the overrid-
ing right of self-defense of coastal states to protect themselves against
grave threats to their environment. 217

(i) Basic Community Policy

Basic community policy on the right of self-defense is directed
mainly to the threat or use of military coercion. A general pre-
sumption against major military coercion is laid down by Article
2(4) of the United Nations Charter. But Article 51 of the Charter
reiterates the “inherent” right of self-defense. Theoretically, self-
defense was to be superseded in most cases by the operation of
collective security measures under the Charter. Since such collective
security measures have proved to be impracticable because of
political and ideological rifts in the international community, there
have been many occasions for states to assert their right of self-
defense against the threat or use of major armed coercion against
their “territorial integrity or political independence” 1 8

Restrictive interpretations of Article 51 have sought to limit its
legitimate application to cases wherein “an armed attack occurs”.219
Such interpretations are so restrictive as to make the right of self-
defense virtually meaningless in the face of threats ranging from
nuclear attack to indirect aggression. Accordingly, major publicists
with whom we concur concede the legitimacy of anticipatory self-
defense where the threat is clear and present and the response
proportionate.

22

217 Ibid.
218M. McDougal and F. Feliciano, supra, n. 8, (1961), Ch. 3, at pp. 120-260;
D. Bowett, Self-Defense in International Law, (1958); J. Stone, Aggression and
World Order, (1958); J. Brownlie, International Law and the Use of Force by
States, (1963); H. Kelsen, Principles of International Law, (Rev. ed., R.W.
Tucker, ed.), at pp. 16-173; J. Moore, Law and the Indo-China War, (1972), at
pp. 8-46; W. O’Brien, War and/or Survival, (1969), at pp. 71-91; O’Brien, Inter-
national Law and the Outbreak of War in the Middle East, 1967, (1967) 11
Orbis 692.

219 For example: Wright, Intervention, 1956, (1957) 51 Am. J1. Int’l. L. 257;
and Wright, “The Cuban Quarantine”, Proceedings, 57th Annual Meeting, (1963)
Am. Soc. Int’l. L., at pp. 9-10.

2 20M. McDougal and F. Feliciano, supra, n. 8, (1961), at pp. 229-241; J. Moore,
Law and the Indo-China War, (1972), at pp. 367-68, 373; J. Stone, Aggression
and World Order, (1958), Ch. 5; A. Goodheart, “Some Legal Aspects of the
Suez Situation”, in Tensions in the Middle East, (P. Thayer ed., 1958), at

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Throughout the period wherein the jus ad bellum regulating the
legal status of recourse to major armed coercion has been developing,
authoritative decision-makers and publicists have been keenly aware
that the military instrument is neither the sole source of, nor
response to, threats to the vital interests of states. Indeed, it is
questionable whether the usual characterization of a threat, based
on Article 2(4) of the Charter, in terms of “territorial integrity or
political independence” is an adequate indication of the extent of the
right of self-defense. It is clear that threats may be carried out by
non-military or by covert means, including psychological, political
and economic.2 ‘ Economic sanctions, in particular, have been at-
tempted by international organizations as well as by individual
states and their allies. It is equally clear that assaults on economic,
social or other base values –
not clearly embraced in “territorial
integrity or political independence” –
can threaten a state’s exist-
ence.2 22 Finally, environmental threats to “territorial integrity” may
be likened to the consequences of armed coercion. 223

From the standpoint of basic community policy, the inherent
right of self-defense may be anticipatory, it may be addressed to
non-military threats to territorial integrity, political independence
and it may be exercised
–
by means other than recourse to military defensive measures.

and, perhaps, to other vital interests –

A. The Anti-Pollution Regime As Self-Defense

By invoking the right of self-defense, Canada deliberately ele-
vates its anti-pollution measures to the highest, most controversial
level of self-help measures. Canada thereby emphasizes its convic-
tion that ordinary institutions, norms, and processes of internation-
al law have failed, and that she is obliged to fall back upon the
most fundamental and extreme basis for protection of her interests.
This is not to say that invocation of self-defense in this case is a
short-term, emergency measure. On the contrary, the character of

pp. 243, 244, 246-47, 249-51; Green, supra, n. 6, at pp. 476-82; O’Brien, Inter-
national Law and the Outbreak of War in the Middle East, 1967, (1967) 11
Orbis 692, at pp. 716-723.

221 M. McDougal and F. Feliciano, supra, n. 8 (1961), at pp. 227-28, 238, 240-241.
222 See: D. Bowett, Self-Defense in International Law, (1958), at p. 111; Green,
supra, n. 6, at pp. 482-84 (surveys some contemporary practice on economic
coercion and reactions thereto). The Arab oil boycott is by now the cause of
serious examination of this subject.

223 See: Canadian Note, April 16, 1970, supra, n. 146. The argument is devel-

oped by Green, supra, n. 6, at pp. 484-90.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

the Canadian claims is long-term –
pending adequate development
and enforcement of international law. At least such an interpretation
is in order if Canada’s invocation of self-defense is to be taken at
face value.

There remains an element of doubt about the significance of
the self-defense claim. It clearly serves the function of throwing up
to the United States its own extensive invocations of self-defense
and of inviting comparison with what are held out to be more
modest Canadian claims. This is fair and normal in international
diplomacy. But the observer concerned with assessing the validity
of the claim of self-defense as a basis for establishing a new type of
contiguous zone is left with a numer of questions. Not the least of
these is whether it is necessary to invoke the right of self-defense
in order to sustain the kind of claims to establish a contiguous zone
that Canada has made. What would be the force of identical claims
based on major vital interests but not on the right of self-defense?

(i) Clarification of Policy

In order to justify an anti-pollution contiguous zone by a claim
of self-defense, a state will have to submit the same kind of argument
of reasonableness in the specific context of the case as in any claim
for a contiguous zone. But, additionally, it would seem that to
qualify as a self-defense measure, the demonstration of reason-
ableness should prove that a highly vital interest, comparable to the
interests that are defended with respect to territorial integrity and
political independence, is at stake. Naturally, the criteria for legiti-
mate recourse to self-defense measures involving armed coercion,
and the kinds of threats to territorial integrity and political inde-
pendence usually associated with armed, self-defense measures has,
it would seem, obligated Canada to make a very persuasive case of
reasonableness in terms of proportionality of ends and means and
responsibility for placing exclusive above inclusive interests.224

It should be emphasized that these strictures ought not be
interpreted as denial of the possibility that the defense of a state’s
environment may be comparable to defense of its territorial integrity
and political independence against armed coercion. But it is im-
portant to recognize that this is a new form of self-defense claim.
Environmental protection is important but so is the special character
of the concept of self-defense. It would be doubly unfortunate if

224 See: M. McDougal and F. Feliciano, supra, n. 8, at pp. 241-44, 521-30; W.
O’Brien, “The Meaning of ‘Military Necessity’ in International Law”, (1957)
World-Polity, at pp. 138-50.

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Canada’s invocation of self-defense in an anti-pollution initiative were
to lead to a dilution of the concept of self-defense and a proliferation
of invocations of self-defense as justification for anti-pollution
measures which might not warrant the respectful consideration to
which Canada’s claims are entitled.

(ii) Trends in Decision

Reference has been made to security measures, naval manoeuvers,
and nuclear testing. Precedents and objections registered with
respect to these functions clearly are relevant to the right of self-
defense. As previously pointed out, they have usually involved serious
but temporary interference with freedom of the seas. The most
relevant precedent appears to be the U.S. ADIZ and the Canadian
CADIZ. 2 ‘ Whereas naval manoeuvers and nuclear tests generally
have the character of measures necessary to build and maintain
deterrent and defense capabilities, ADIZ and CADIZ are permanent
systems of anticipatory self-defense. Aerial incidents over the years
since 1945 would indicate that many states, notably the Communist
states, maintain their own version of ADIZ . 2 6 The question is, does
tolerance of air defense systems designed to protect a state from
surprise aerial attack in the nuclear age, produce a precedent for
maintaining permanent anti-pollution zones in a form of anticipatory
self-defense?

In the Canadian debates on the Pollution Prevention Act, reference
was made to the maritime quarantine imposed by the United States
during the 1962 Cuban Missile Crisis2 27 It should be recalled that
the U.S. justified the Cuban Quarantine as an enforcement action
on behalf of the Organization of American States, a most dubious
rationale.2 The true character of the Cuban Quarantine was an
act of individual and collective self-defense against a nuclear threat
that was perceived to be of the highest magnitude. The implementa-

225 Supra, at pp. 488-90.
226 See: Lissitzyn, The Treatment of Aerial Intruders in Recent Practice and
International Law, (1953) 47 A.TI.L. 559; De La Pradelle, Les Frontigres de
l’air, (Academy of International Law, Hague), (1954-11) 86 Recueil des Cours
117.227 See the remarks made by Mr. Eric Nielsen, Debates of the Canadian
House of Commons, Hansard, 114 H.C. Deb. 6003 (April 17, 1970); and the
comments of Mr. Baldwin, Ibid., at p. 7897 (June 9, 1970), cited in Bilder,
supra, n. 6, at p. 27.

228Meeker, Defensive Quarantine and the Law, (1963) 57 Am. J1. Int’l. L. 525;
Chayes, The Legal Case for U.S. Action on Cuba, (1962) 47 Dep’t. State Bull.
763; Chayes, Law and the Quarantine of Cuba, (1963) 41 Foreign Affairs 522.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

tion of the quarantine, on the other hand, was widely accepted as
reasonable. Aside from Cuba, the states most concerned appear to
have considered the measures limited and appropriate in view of
the magnitude and credibility of the threat to the U.S., and the
nations of the Western Hemisphere. 29

It might be possible to make an interesting, detailed comparison
of the U.S. measures in the Cuban Quarantine and the Canadian
measures provided for in the new Arctic anti-pollution regime. But
the comparison would suffer severely from the basically different
context. The Cuban Quarantine was a temporary act of war directed
against the most extreme kind of nuclear threat. The Canadian
anti-pollution program is a long-range regulatory system established
in time of peace to meet an environmental threat. Once again, the
comparison makes a plausible debating point but it is difficult to
apply in substantiation of Canada’s claim.

The most relevant case of anticipatory self-defense would appear
to be Israel’s launching of the Six-Day War in 1967. Its relevance
derives from the nature of the threat perceived by Israel. Egypt had
closed the Straits of Tiran, cutting off the vital Israeli port of Elath
in the Gulf of Aqaba. Additionally, military force was massed on
Israel’s borders, the United Nations peace-keeping personnel were
peremptorily expelled from the Straits of Tiran and Sinai, and a
general escalation of psychological warfare unleashed, seemingly
heralding a final solution to the problem Israel presents to the Arab
world. Particularly in view of the vulnerability of Israel both to
blockade and direct attack, conditions justifying measures of an-
ticipatory self-defense existed.20 Again it may be asked whether
Canada is seriously contending that the environmental threat to the
Arctic regions is comparable to the threat to Israel’s national exist-
ence at the time of the outbreak of the 1967 war in the Middle East.
The most serious attempt to pursue the issue of Canada’s right
of self-defense appears to be that of L.C. Green. In a section of his
article headed “National Preventative Self-Defense Against the Threat
of Pollution”, Professor Green recalls the Trail Smelter Arbitration,
stating:

229 M. McDougal, Soviet – Cuban Quarantine and Self-Defense, (1963) 57 Am.
Ji. Int’l. L. 597; MacChesney, Some Comments on the “Quarantine” of Cuba,
(1963) 57 Am. Ji. Int’l. L. 592; Christol and Davis, Maritime Quarantine: The
Naval Interdiction of Offensive Weapons and Associated Material, 1962, (1963)
57 Am. J1. Int’l. L. 525, 533-36, 543. See generally: R. Kennedy, Thirteen Days,
(1969); E. Abel, The Missile Crisis, (1966).

‘Brien, International Law and the Outbreak of War in the Middle East,

230

1967, (1967) 11 Orbis 692.

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In so far as preventive measures are concerned, the Tribunal found no
difficulty in instructing the smelter to refrain from actions which might
cause further damage and it laid down regulations for the future operation
of the smelter. In this way it clearly recognized that under customary
international law an arbitral tribunal was able to call for the adoption
of true preventive measures –
in the same way as the World Court is
authorized to order interim measures of protection, although in this case
some clear injury must have been caused, sufficient to ground a claim… 2 3 1
Green then argues that this reasoning may properly be applied
to oil pollution from ships on the high seas, justifying the right of a
coastal state “to enact preventive or protective measures against
ships using the high seas sufficiently adjacent to its shores as to
threaten damage to those shores in the event of an oil spillage”.

After an examination of instances in which an “economic applica-
tion” to the right of self-defense has been suggested, Green concludes:
Accepting these views as to the nature of economic independence and its
significance as regards independence as such, leading to the conclusion
that a threat to the one is a threat to the other, it becomes easy to argue
that if a state is permitted to take preventive, anticipatory measures of
self-defense to preserve its political or territorial independence, it is
equally able to take similar measures with regard to potential threats to
its economic independence, and, since economic survival depends upon
economic well-being against any action which constitutes a threat of a
substantial character of its economic welfare.. 232
Green contends that this “right under customary law” still exists
despite the limitations of the Brussels treaties which have received
either opposition or abstention from Canada. Thus, Professor Green
finds that there is “inescapable logic” in the remark of the Secretary
of State for External Affairs:

I find it anomalous that certain countries can accept the right of a coastal
state to sink a foreign ship on the high seas when a marine accident
threatens pollution but at the same time assert that coastal states do
not have the right to prevent such an accident by turning away such a
ship from areas off their coasts, or by imposing safety standards or
preconditions for entry into these areas.233
However, it may be asked again whether Canada really strength-
ens her claims to the right to take preventative action against
pollution by justifying them as an exercise of the right of self-
defense.

231 Green, supra, n. 6, at p. 477, citing the Trail Smelter Arbitration, (United

States v. Canada), (1941) 3 U.N.R.I.A.A. 1905.

232 Green, supra, n. 6, at pp. 483-84.
233 Ibid., at p. 484, citing Hansard, 114 H.C. Deb. No. 103, at p. 5951 (April

16, 1970).

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

(iii) Appraisal and Recommendation

Reaction to the Canadian claims as self-defense depends on
one’s answer to the question: Is it necessary and right to add another
chapter to the law of self-defense measures in order to deal justly
and wisely with claims to protect states and areas from serious
environmental threats? The precedents for transferring the concept
of self-defense against- armed threats to territorial integrity and
political independence are so few and inconclusive that a decision
to press in this direction is a major one for authoritative decision-
makers. If the necessary actions for environmental protection can be
justified and taken without recourse to the right of self-defense, it
would seem preferable not to add a non-military dimension to the
exceptions presently related to self-defense.

V. Canada’s Claims With Respect to the Northwest Passage

The Northwest Passage, sought vainly for centuries, is a reality
of the highest importance in the Canadian Arctic today. There are
several possible routes. The best and most promising for interna-
tional navigation is the following from east to west: Davis Strait,
west through Lancaster Sound, through Barrow Strait and Viscount
Melville Sound, southwest through Prince of Wales Strait between
Banks and Victoria Islands, then west along the north coast of the
mainland into Prudhoe Bay in the Beaufort Sea, toward Bering
Strait. An alternate route continues from Melville Sound west
through McClure Strait. But ice obstructs McClure Strait to the
point that it is presently much less feasible than the Prince of Wales
Strait southerly route.3 4

As long as Canada’s territorial seas were limited to three miles, it
was possible to traverse the Northwest Passage without entering
them. However, the extension of territorial waters to twelve miles
means that Canada claims exclusive jurisdiction at narrow points in
Barrow Strait and Prince of Wales Strait 35 Accordingly, the new
Canadian territorial sea claim, otherwise tolerable to the United
States, confronts a U.S. claim to treat the Northwest Passage as an
international strait. In this respect it also brings Canada into the
whole debate about the effect of extensions of territorial seas on

234 See: Pharand, Innocent Passage in the Arctic, 6 Can. Yb. Int’l. L. 3, at
pp. 48-51 (Hereinafter cited as “Pharand”); Cohen, supra, n. 6, at p. 41 (fn. 45).
235 Barrow Strait is less than twenty miles wide; Prince of Wales Strait

less than six miles wide. Pharand, supra, n. 234, at pp. 49-50.

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international straits. In its April 15, 1970 statement, the U.S. Depart-
ment of State asserted that its willingness to accept a twelve-mile
territorial sea was conditional: “. . . only as part of an agreed inter-
national treaty also providing for freedom of passage through and
over international straits. ‘ 236 The Northwest Passage was not men-
tioned explicitly.

The Canadian note of April 17, 1970 replied:
It is idle, moreover, to talk of freedom of the high seas with respect to
an area, large parts of which are covered with ice throughout the year,
other parts of which are covered with ice most of each year, and where
the local inhabitants use the frozen sea as an extension of the land to
travel over it by dogsled and snowmobile far more than they can use it as
water. While the Canadian Government is determined to open up the
Northwest Passage to safe navigation, it cannot accept the suggestion that
the Northwest Passage constitutes high seas. 237
This part of the Canadian note apparently applied to the waters
of the anti-pollution contiguous zone generally, but includes the
waters through which the Northwest Passage routes pass. Turning
specifically to the territorial seas, the Canadian note stated:

The Canadian Government is aware of United States interest in ensuring
freedom of transit through international straits, but rejects any sugges-
tion that the Northwest Passage is such an international strait. The
widespread interest in opening up the Northwest Passage to commercial
shipping and the well-known commitment of the Canadian Government
to this end are themselves ample proof that it has not heretofore been
possible to utilize the Northwest Passage as a route for shipping. The
Northwest Passage has not attained the status of an international strait
by customary usage nor has it been defined as such by conventional inter-
national law. The Canadian Government reiterates its determination to
open up the Northwest Passage to safe navigation for the shipping of all
nations, subject, however, to necessary conditions required to protect
the delicate ecological balance of the Canadian Arctic.238
As may be seen in the two quotations above from the Canadian
April 17, 1970 note, Canada appears to be saying that the whole
route of the Northwest Passage does not qualify as an international
strait. The Canadian claims barring status as an international strait
apparently include both the new, twelve-mile territorial sea claim
and the contiguous zone claim. Underlying these claims is a some-
what vague but potent assertion that all of the waters of the area
are “Canadian” and unique. For example, in strongly rejecting the
U.S. suggestion that a special international regime be established

2 3
6 Supra, n. 111.
237 Supra, n. 146.
238 Ibid. See: Morin, supra, n. 185, at pp. 218-20.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

for the region, the Note states that, “the Canadian Government
cannot accept any suggestion that Canadian waters should be inter-
nationalized”, and that “the Canadian Government obviously cannot
participate in any international conference called for the purpose
of discussing questions falling wholly within Canadian domestic
jurisdiction”.239

(i) Basic Community Policies

The law of the sea seeks to reconcile the rights of coastal states
with those of states whose ships pass through territorial waters as
part of international navigation necessary to the interest of the
international community generally and to each state individually.
The concept of “innocent passage” as a solution is, of course, a call
for a three-way judgment of reasonableness in which the rights of
the coastal state, the flag-state and the community are balanced.
Presumptions and expectations probably tend to accord greater
weight to the interpretation of “innocent passage” by the coastal
state with respect to most of its territorial seas, although this is a
controversial assumption. But it appears that international law has
gradually evolved to the point where the presumption is for inclusive
use over exclusive coastal claims where shipping passes through
straits whose geographical position and actual use make them vital
connecting lanes for ocean shipping.240

Several basic questions emerge, then, with respect to straits:
How is a strait defined? What constitutes reasonable coastal state
control of a strait and what constitutes innocent passage through a
strait? In the assessment of “reasonableness” and “innocence”, the
following points are important:

(1) What is the extensiveness of the authority asserted? It
may range from complete to occasional denial- of passage, claims to
competence to prescribe and apply authority with respect to naviga-
tion, pollution, security, and other threats to coastal well-being, or
even to internal matters on passing ships not clearly of concern to
the coastal state.

(2) What is the character of the area subjected to authority?

Is it highly important to international navigation?

(3) What is the relationship between the authority claimed and
the significance of the interests sought to be protected? What alter-
natives are available to protect these issues?

23 Canadian Note, April 16, 1970, supra, n. 146, at pp. 613-14.
2 40 M. McDougal and W. Burke, supra, n. 8, at pp. 196-97

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(4) What are the modalities and degrees of interference exer-
cised by the coastal state? Are the modalities limited to functions
such as navigation, health, pollution regulations or are they more
general and potentially arbitrary for example, requiring prior clear-
ances and authorizations for passage as a matter of principle, irres-
pective of concrete functional requirements? Do the coastal regula-
tions in fact seriously interfere with international navigation?”4

In weighing the reasonableness of coastal restrictions on straits
and the innocence of passage through straits, reference to the values
of the parties is imperative. Power is a major issue touching the
strategic interests of the parties and of broader groupings of states,
as well as the international community. A strait is a source of power
and a source of vulnerability which invites power considerations to
play a paramount role in determining reasonableness. Power also
affects the acceptability of claims to innocent passage. Some states
will claim that no passage by warships can be innocent. 2

Wealth is as important as power in the primarily military sense,
insofar as control of straits is concerned. Many “lifelines”, notably
of fuel, run through straits. If they are interrupted, wealth and power
are drastically affected.2 3 In the case of straits in comparatively
unknown parts of the world such as the Arctic, enlightenment is a
major value to be protected.2 44 Well-being of the coastal state, and
perhaps of adjoining states, is affected by use of straits. High among
the issues relating to well-being are pollution and the continuing
fear of radiation from nuclear-powered vessels and warships carry-
ing nuclear weapons.145 Skill becomes a critical value in that the
ability to sail through many straits requires navigational and sup-
portive, scientific and technological resources ranging from highly
useful to indispensable. In this connection, development of such
resources by a state for its own utilization of waterways adds another
dimension to the issue of “sharing” the sea lanes with foreign
ships.240

Respect and prestige play a major role for coastal states control-
ling important straits and maritime states pledged to keep vital
for themselves and/or the international community.247
straits open –
Solidarity is a major stake in efforts to keep straits free. The issue

241 Ibid., at pp. 188-96.
242 Ibid., at pp. 192-93.
243 See supra, at pp. 337-338.
24 Ibid.
245 See infra, at pp. 526 et seq., for the Soviet case of the North East passage.
246 See supra, at p. 338.
247 See supra, at pp. 34446.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

is usually one in which there is a genuine community interest.
Rectitude is also strongly at stake, since the effectiveness of the law
can be judged with great
–
clarity.

if it can be authoritatively expressed –

48

A. Canada’s Claims for the Northwest Passage Summarized

Canada’s claims in the Northwest Passage may be summarized as

follows:

Territorial Waters: Exclusive, comprehensive, continuing control
over “straits” in Barrow Strait and Prince of Wales Strait, as well
as in all waters twelve miles from Canadian coasts that might be
used for international navigation.

Contiguous Zone Waters: Partial, continuing control over the

waters of the route beyond twelve miles from Canadian territory.

(i) Clarification of Policy

The issues presented by the claims and counterclaims of the U.S.
with respect to the Northwest Passage and key straits thereof are
essentially:

(1) Are there international straits in the parts of the Northwest

Passage falling under Canada’s twelve-mile limit claim?

(2)

If Canada’s new twelve-mile limit includes international
straits, are the anti-pollution measures now in effect violative of
international law standards for the protection of innocent passage
in straits?

The answers to these questions are difficult for a number of
reasons. The definition of international straits is a controversial
matter. The implications of the factual characteristics and record of
use of the Northwest Passage are subject to disagreement. Finally,
the reasonableness of the Canadian anti-pollution and other measures
both in its new contiguous zone and territorial seas must be judged
in terms of changing presumptions and expectations with regard to
the balance of interests in international straits. Thus, even if it be
held that Canada is obliged to treat the Barrow and Prince of Wales
Straits as international straits, her claims may still be found reason-
able. As remarked with respect to contiguous zones, the presumption
in favour of freedom of the seas is increasingly challenged by the
presumption for effective pollution control. The law regulating

248 See supra, at pp. 344 et seq.

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international straits may change accordingly to justify greater exer-
cise of competence to control access and to prescribe and to apply
authority within international straits.

(ii) Trends in Decision

Article 16(4) of the 1958 Geneva Convention on the Territorial Sea

and the Contiguous Zone provides:

There shall be no suspension of the innocent passage of foreign ships
through straits which are used for international navigation between one
part of the high seas and another part of the high seas or the territorial
sea of a foreign State.249

It is worth noting that the final provision of the Convention differ-
ed from the proposed provision of the International Law Commission
in that the adverb “normally” was not retained to qualify the verb
“used”. On this point McDougal and Burke observe:

The objective in deleting the word was, according to proponents of that
course, to assure passage through straits which were actually used and to
avoid friction over the concept of normal use. The opposition expressed
the view that the right of innocent passage applied only to “recognized
international seaways” (expression of delegate of Saudi Arabia) and that
deletion of the word “normally” would restrict coastal competence even
over straits which were not used for “regular international navigation.”
The Conference decision to delete “normally” apparently was intended
to mean, therefore, that the right of access of both warships and
merchant vessels applies to a very wide category of straits, including
those seldom or irregularly used for navigation.2 5o
It appears that the Geneva provision was heavily influenced by
the decision of the International Court of Justice in the Corfu
Channel case.25 ‘ That decision is generally cited as a highly authori-
tative basis for a broad definition of international straits. The
I.C.J.’s broad definition is of particular relevance to the Northwest
Passage question because frequency of use was not judged in terms
of such qualifications as “substantial”, “customary”, or “normal”.
The I.C.S. found it sufficient that the Corfu Channel has been “a
useful route for international maritime traffic”.25 2

Of course, many international straits are regulated by particular
conventional regimes.25 But, in the absence of a special regime,
claims with respect to international straits should be dealt with

249 U.S.T.IA.S. 5639; 15 U.S.T. 1906, at p. 1911. See: M. Whiteman, (1965) 4

Digest of International Law, at pp. 463-65.

250M. McDougal and W. Burke, supra, n. 8, at p. 212. Emphasis added.
251 The Corfu Channel case (Albania v. The United Kingdom), International

Court of Justice, Judgment of April 9, 1949: (1949) 4 I.CJ. Reports 4, 257.

252 Ibid., at p. 28.
253 M. Whiteman, (1965) Digest of International Law, at pp. 417-80.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

in the light of the 1958 Geneva Convention and the Corfu Channel
case. Most controversies over straits since 1958 have not turned
on the issue of the sufficiency of international traffic. In perhaps
the most controversial case, the Egyptian closing of the Straits of
Tiran in 1967, the issue was the right of the coastal states to interfere
with international traffic that was substantial by any criterion.-

Interpretation of the right of innocent passage through interna-
tional straits has presented continuing problems. Some states, no-
tably Communist, insist on the right to control innocent passage by
warships through requirements for previous “authorization”. Al-
though such restrictions reflect reservations to the 1958 Geneva
Convention, it is questionable whether they are not contrary to
customary law as reflected in the Corfu Channel case. 55 Nevertheless,
it appears that interpretations, even by states not making reserva-
tions to the Geneva Convention, render uncertain the enjoyment of
the rights of passage in many straits. Accordingly, the accelerating
trend to claims of a twelve-mile territorial sea is viewed with deep
concern by maritime states.

Indeed, it appears increasingly that the whole question of free-
dom of passage through straits is subject to thoroughgoing review
and in need of community action. It is estimated that approximately
120 straits are affected by twelve-mile limit claims. These include
such vital straits as the Bering, Malacca, and Gibraltar. 256

254 Ibid., at pp. 465-80; O’Brien, International Law and the Outbreak of War

in the Middle East, 1967, (1967) 11 Orbis 692, at pp. 707-10.

255 M. McDougal and W. Burke, supra, n. 8.
250 F. Kruger-Sprengel, supra, n. 122, at p. 24, citing Office of the Geographer,
U.S. Department of State, World Straits Affected by 12-Mile Territorial Sea,
(1971). It should be noted that the United States rejects the usage “innocent
passage” through straits (e.g., Article 16(4) of the 1958 Geneva Convention on
the Territorial Sea). Mr. Charles N. Bower, Acting Legal Adviser Department
of State, has stated:

The U.S. straits position is based on the fact that global communications
require movement through and over straits and that an extension of the
territorial sea from 3 to 12 miles would cause a large number of important
international straits to become overlapped by territorial waters. Without
a new lega concept ensuring unimpeded transit through and over such
straits, states could assert that the doctrine of innocent passage would
be applicable. The doctrine of innocent passage is inadequate for it has
been interpreted subjectively by some coastal states as to what is pre-
judicial to their “peace, good order, and security”. The U.S. free transit
proposal provides for a limited right –
the right for a ship or an aircraft
to pass from one end of an international strait to the other end….

Hearing on S. Res. 82, Before the Subcomm. on Oceans and International
Environment of the Senate Committee on Foreign Relations, 93d Cong., 1st
Sess., June 19, 1973, at p. 4.

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In the face of these developments, the United States and Soviet
Union submitted a draft convention as early as 1968 in which the
twelve-mile limit would be accepted subject to an Article on straits.
The Draft Article would ensure that “all ships and aircraft in transit
shall enjoy the same freedom of navigation and overflight, for the
purpose of transit through and over such straits, as they have on
the high seas”.257 Designation of corridors for transit by coastal
states was provided for. This Draft Article was submitted on August
3, 1971, by the United States in Geneva to Subcommittee II of the
U.N. Committee on the Peaceful Uses of the Seabed and the Ocean
Floor Beyond the Limits of National Jurisdiction.258

Most recently, the United States has made a number of proposals
designed to meet the concerns of coastal states regarding navigation
hazards and pollution in straits resulting from international traffic,
as well as regulation of overflights. The essence of the U.S. approach
is regulation by international conventions under the auspices and
direction of IMCO and ICAO (International Civil Aviation Organiza-
tion). Ships passing through international straits would be obliged
to observe international traffic separation schemes. Such schemes
exist now but are not binding. The U.S. hopes to make them binding
at the Law of the Sea Conference. The U.S. also proposed free over-
flight over straits to be arranged in accordance with ICAO stand-
ards.25 9

Meanwhile, IMCO has sought to improve the regime of anti-
pollution measures. 1971 Amendments to the 1954 London Con-
vention have established new regulations on ship design and con-
struction affecting large tankers, applied since January 1972. Further,
IMCO is considering proposals to extend the 1969 Conventions to
substances other than oil. Finally, IMCO undertook in a 1973
Conference on Marine Pollution to:

(1) prohibit all intentional discharge of oil wastes that pollute

the seas;

(2) minimize further accidental oil spills through, inter alia,
new regulations for vessels design and equipment, revisions in navi-

2 57 Kruger-Sprengel, supra, n. 122, at p. 22 (fn. 41).
258 U.S. Draft Articles on Territorial Sea, Straits, and Fisheries Submitted
to U.N. Seabeds Committee, (1971) 55 Dep’t. State Bull. 261, 263, 266. See:
U.N. Doe. A/AC. 138/S.C. II/L.4.

259 U.S. Information Service: Statement by the Honorable John R. Stevenson,
United States Representative to the Committee on the Peaceful Uses of the
Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction,
Subcommittee II, (July 28, 1972).

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

gation rules, new traffic separation schemes, and new oil transfer
procedures;

(3)

extend controls to hazardous cargoes other than oil. The
U.S. supports this initiative, urges adhesion to, and compliance with,
past IMCO conventions, and proposes to improve and tie together
the network of conventional regulations at the Law of the Sea
Conference.

26 0

In explaining the continuing U.S. position, U.S. Department of
State Legal Advisor, John R. Stevenson, specifically singles out the
Canadian approach as one to be sympathized with but resisted.2 61

Thus the basic issue remains: enlightened unilateralism versus an
international approach combining a network of international agree-
ments developed and overseen by functional organizations (IMCO,
ICAO) and comprehensive codification and progressive development

260 Stated by John R. Stevenson, August 2, 1972. A conference in London in

November 1973 produced the International Marine Pollution Convention.

On November 13, 1972, representatives of 57 states, among 91 participants,
signed the London Convention on the Dumping of Wastes at Sea. The
convention requires adherents “to take all practical steps to prevent the
pollution of the sea by the dumping of waste and other matter that is
liable to create hazards to human health, to harm living resources and
marine life, to damage amenities or to interfere with other legitimate
uses of the sea.

Quoted in New York Times, November 14, 1972, at p. 1, cols. 4-5; at p. 14,
col. 1. The New York Times reports that in the London Convention on the
Dumping of Wastes at Sea, “The enforcement of the anti-dumping measures
and sanctions is left to individual countries. There is no attempt to coordinate
penalties”: Ibid., at p. 14, col. 1.

201 On the continuing U.S. efforts to develop the IMCO regime, see the
following statements and documents in U.S. Presents Proposals at Preparatory
Session for Law of the Sea Conference, (1973) 69 Dep’t. State Bull. 397-415.
“Statement by Ambassador Stevenson, Subcommittee II, July 18, discussing,
inter alia, coastal seabed economic jurisdiction and reiterating U.S. position
that “our willingness to move to a twelve-mile territorial sea is conditioned
on international guarantees of free transit through and over straits used for
international navigation”: Ibid., at p. 399.

Statement by Mr. Moore, Subcommittee III, July 18, discusses draft articles
for the protection of the marine environment (U.N. Doc. A/Ac. 138/SC.III/L.
40): Ibid., at pp. 402-406.

John Norton Moore’s July 18, 1973 statement may also be found in Hearings
on S. Res. 82, Before the Subcomm. on Oceans and International Environ-
ment of the Senate Committee on Foreign Relations, 93rd Cong., 1st Sess.,
June 19, 1973, at pp. 68-72, followed by the U.S. Draft Articles on the Protection
of the Marine Environment and the Prevention of Marine Pollution: Ibid.,
at pp. 72-75.

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at the Law of the Sea Conference. Insofar as Canada aspires to the
role of a leader in creating customary international law, this is how
the situation rests at the moment with respect to straits. But it is
necessary to bear in mind the unique aspects of the Canadian situa-
tion and claims. How does Canada’s position compare with that of
other Arctic powers?

The practice most relevant to the Northwest Passage would seem
to be that of the Soviet Union with respect to the Northeast Passage.
Pharand describes it as follows:

Starting from Murmansk, the main lane runs through the Barents Sea,
passing north of Novaya Zemlya, and proceeds across the Kara Sea into
the Vilkitsky Straits of Severnaya Zemlya; having crossed the straits, the
route traverses the Laptev Sea and doubles into a southern lane through
the Dimitri Laptev Strait, and into a northern one through the Sannikov
Strait, both of which lead into the East Siberian Sea. There the route
divides again to pass on either side of the small Medvezhy Islands; it then
resumes as a single lane along the coast south of Wrangel Island, into the
Chikchi Sea and through Bering Strait…262
This route is used by some 300 vessels, carrying over 1,000,000
tons of cargo to Vladivostok. Use of this route cuts to roughly half
the distance covered otherwise by way of the Panama or Suez
Canals. Apparently, the Northeast Passage has a significant potential
as an international waterway. But its use is limited by two physical
problems: the depth of the water and the obstruction of ice. Use of
the Northeast Passage is also restricted by the fact that the Soviet
twelve-mile limit renders the Vilkitsky Straits and the strait south
of the Medvezhy Islands territorial waters. 26 3

In 1965 and 1967, U.S. Coast Guard icebreakers seeking to traverse
the Arctic Ocean were prevented from entering Vilkitsky Straits by
extremely strong Soviet protests and warnings. The U.S. protested
after the 1967 incident that:

There is a right of innocent passage for all ships through straits used for
international navigation between two parts of the high seas, whether or
not, as in the case of the Vilkitsky Straits, they are described by the
Soviet Union as being overlapped by territorial waters, and there is an
unlimited right of navigation on the high seas of straits comprising both
high seas and territorial waters.264
There is some evidence that the Soviet Union has thought of all
of the waters adjacent to its coasts beyond the twelve-mile territorial
sea as within its exclusive jurisdiction under a sector theory. How-

262 Pharand, supra, n. 234, at p. 22.
263 Ibid., at p. 22-27.
264 (1967) 57 Dep’t. State Bull. 362, quoted in Pharand, supra, n. 234, at p. 17.

1973]

LAW OF THE SEA IN THE “CANADIAN” ARCTIC

ever, it appears that this is not the true Soviet view.25 In any event,
the obstacle to use by foreign vessels of the Northeast Passage
appears to be two-fold. First, transit through the Vilkitsky Straits
and the straits south of the Medvezhy Islands seems mandatory
because of ice conditions. Since these straits pass through Soviet
territorial waters they are subject to Soviet restrictions on the
passage of warships. Thus far the foreign ships that have been
turned back from these straits have been U.S. Coast Guard ice-
breakers which could fairly be considered “warships”.2 66 However,
the Soviet restrictions on warships appear to be in violation of
customary international law as clarified by the Corfu Channel case.
A Soviet Reservation to the 1958 Geneva Territorial Sea and Con-
tiguous Zone Convention with respect. to warships is, in the judg-
ment of Pharand, “incompatible with the object and purpose of the
Convention and is of quite doubtful validity in international law 67
The record of passage of foreign vessels through the Northeast
Passage is very minimal. It appears that the development of this
waterway has been accomplished exclusively by the Soviets for the
benefit of their own shipping 68 In this respect the Soviet Union
has a stronger claim to exclusive control than Canada does with
respect to the Northwest Passage where U.S. contributions have

265 Ibid., at pp. 28-38. See generally: W. Butler, The Soviet Union and the

Law of the Sea, (1971).

266 Pharand, supra, n. 234.
267 Ibid., at p. 41; see his discussion at pp. 38-9.
26S Ibid., at pp. 17-22. Pharand states:

…it appears that only three foreign ships have ever traversed the
Northern Sea Route; the Swedish ship Vega, under the command of
Nordenskibld, became the first to sail the whole length of the Northeast
Passage in 1878-79; the second was the Norwegian ship Maud, led by
Amundsen in 1918-19. The third was the Komet, of the Third Reich, which
traversed the entire passage from August 9 to September 5, 1940. The
first two ships made voyages of scientific exploration, before the develop-
ment of the Northeast Passage by the Soviets; the third voyage was made
with the approval of the Soviet Union, and with the assistance of its
icebreakers. Subject to the few exceptions just mentioned, it is doubtful
if any foreign ship has ever crossed the Vilkitsky Straits without being
escorted by a Soviet icebreaker pilot or receiving special permission from
the Soviet Union. Thus the legal regime of ordinary territorial waters
would apply to those straits of the Northern Sea Route which are too
narrow to leave a strip of high seas in the middle; allowing for a breadth
of 12 nautical miles from the coast and around the islands, there are two
such passages: the Vilkitsky Straits, and the strait formed by the Med-
vezhy Islands and the coast.

Ibid., at p. 40.

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(Vol. 19, No. 4

played a major part in improving prospects for use. If the U.S.S.R.
is consistent it should view favorably the Canadian claims with
respect to the Northwest Passage.26 9

(iii) Appraisal and Recommendation

In balancing claims to access to straits supported by the principle
of freedom of the seas with claims to control access supported by
the principle of environmental protection (or of self-defense), it is
difficult and unnecessary to produce a generally applicable formula
or hierarchy of values. It is increasingly apparent that this balance
will have to be determined contextually. With respect to the North-
west Passage, the following points may be made:

269 This point is examined on the basis of sparse evidence in Dehner,
Creeping Jurisdiction in the Arctic: Has the Soviet Union Joined Canada?,
(1972) 13 Harv. Int’l. L.J. 271. Dehner states:

The Soviet Union, with the world’s longest Arctic coastline, apparently
reacted affirmatively to the Canadian claim. This Comment will examine
the Soviet response to determine the nature and extent of Soviet support
for the Canadian assertion. Because there is no definitive Soviet pro-
nouncement on the subject, an understanding of the U.S.S.R.’s position
must be based on the following factors: Soviet participation in inter-
national environmental agencies, Soviet attitudes towards the law of the
sea, Soviet doctrine and practice in the Arctic, and 1971 Soviet-Canadian
agreements and statements.

Ibid., at pp. 271-72. Dehner quotes Beesley, supra, n. 6, at p. 5: “The Soviet
Government has … clearly indicated its support for Canada’s Arctic Waters
Pollution legislation.” Dehner notes the 1971 Trudeau-Kosygin talks, observing:
Against this background of Arctic practice and doctrine, in 1971
the
Soviet Union agreed with Canada as to the special status of Arctic waters
and the responsibilities and rights of Arctic coastal states. Statements
issued after the May, 1971 visit of Prime Minister Trudeau to the Soviet
Union and after the October, 1971 visit of Premier Kosygin to Canada
confirmed Soviet-Canadian cooperation on principles governing Arctic
navigation.

The Protocol on Consultations between the Soviet Union and Canada
of May, 1971, recognized “the responsibility of both sides for preserving
and protecting the environment in Arctic and sub-Arctic regions”. The
communique on Trudeau’s visit stated that “the two sides share the
opinion that they bear a special responsibility and possess corresponding
rights with respect to ensuring the safety of navigation and protecting
the balance of nature in the Arctic regions”. While it is doubtful that
the Soviets meant by “corresponding rights” the precise 100-mile claims
made by Canada, they have nonetheless stated a basis for asserting special
rights over Arctic waters beyond twelve miles from shore.

(1972) 13 Harv. Int’l. L.J. 271, at p. 285.

1973]

LAW OF THE SEA IN THE “CANADIAN” ARCTIC

(1) The status, as international waterways, of the several
possible Northwest Passages is unsettled and controverted. Clearly
neither the Northwest Passage routes generally nor the straits within
these routes and within Canada’s new 12-mile territorial seas in
particular qualify as international waterways on the basis of use in
the past. These waterways probably will not qualify as international
straits on the basis of ocean traffic in the near future, although this
could change.

(2)

If, as Pharand concluded in 1969, the Northwest Passage
has a geographic character that qualifies it for status of an inter-
national strait,2 70 the lack of traffic through it is not conclusive and
Canada would be violating present international law if it were to
control access through these waters in an arbitrary manner.

(3)

Since the status of international straits numbering in the
neighborhood of 120, is being placed in question by the trend to
twelve-mile territorial sea claims, and, since this question is the
subject of draft conventions to be considered at the Law of the Sea
Conference, it seems pointless to take an “either/or” position on the
Northwest Passage solely on the basis of the debate over the require-
ment for actual use to qualify as an international strait. Once again,
the issue is not whether Canada’s claims to control the Northwest
Passage are “legal” or “illegal” but, rather, whether they are
reasonable and generally conducive to the support of legitimate
exclusive and inclusive values within the public order of the oceans.
(4) Accordingly, it is premature to pass final judgment on
the effect of Canada’s claims on inclusive rights in the Northwest
Passage. We have little basis on which to judge the reasonableness
of a Canadian regime in these waters. It is fair to say that if Canada
were to adopt a position as arbitrary and hostile to inclusive rights
in the Northwest Passage as the Soviet Union has maintained in
the Northeast Passage there would be a violation of legitimate rights
of innocent passage through waters that are potentially, if not
actually, “international”.

(5) Moreover, if Canada attempts to follow the Soviet model

in the Northeast Passage to the extent of treating the whole area –
land, sea and ice –
as “Canadian”, to be further developed as a
solely “Canadian” enterprise to be shared only on the basis of
Canadian policy rather than legal obligation, the inclusive rights of
other states and of the world community will have been violated.

We recommended that Canada, the United States, and the Soviet
develop the Northwest

Union – with perhaps other Arctic powers –

2 70 Pharand, supra, n. 234.

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Passage cooperatively, in such a way that innocent passage and
protection of the environment are both guaranteed. The nature of
this cooperation should be dictated by these two objectives rather
than by doctrinaire claims either to exclusive control by Canada or
inclusive free access subject only to the still unproven and self-
enforced international law of pollution.

It appears that the actual effects of the disposition of the North-
west Passage controversy on the regime of international straits will
not be great in the short run. It is interesting to note that recent
surveys of the impact of the twelve-mile territorial sea on interna-
tional straits do not mention the Northwest Passage.2 7
1 Accordingly,
the effects of the processes of interaction and of claims relative to
this matter will probably not make a very significant mark on the
evolving law of the oceans. However, as both Canada and the United
States agree, the degree of success that results from the respectively
unilateral and international initiatives of these nations will be
influential in determining future conditions in all of the relevant
processes: interaction, claims, and authoritative decision.

Conclusion: The Process Of Authoritative Decision

For the Lasswell-McDougal jurisprudence, international law is a
process, the “comprehensive process of authoritative decision, trans-
cending all territorial boundaries, by which the peoples of the world
clarify and implement their common interests”. In this article we
have been examining the Canadian Anti-Pollution initiatives in the
Arctic in terms of the two processes that precede and form the
societal bases for the process of authoritative decision, i.e., the
processes of interaction and of claims. We will conclude this article
with some indications of the relevance of the Lasswell-McDougal
system to the continuing issues raised by the Canadian initiatives.

Following the Lasswell-McDougal format we will comment upon:
(1) constitutive and public order decisions in the law of the

sea;

(2)

the components in the process of authoritative decision:
decision-makers, objectives, arenas, bases of power, strategies, out-
comes, effects, and conditions;

(3)

the decision phases: intelligence, promotion, prescription,

invocation, application, termination and appraisal.

271 See, e.g.: Sovereignty of the Sea, Geographic Bulletin No. 3, published
by the Office of the Geographer, U.S. Department of State; Table III, “Widths
of Selected Straits and Channels”, (October, 1969), at pp. 22-27.

1973]

LAW OF THE SEA IN THE “CANADIAN” ARCTIC

(i) Constitutive and Public Order Decisions

Within the flow of authoritative decision in the global community,
we discern two kinds of decision: Constitutive and Public Order.
McDougal says:

We may call these the “constitutional” or, preferably, the constitutive
decisions. There are the decisions which determine who the authorized
decision-makers are; what policies they are to follow; in what structures
of authority they are to act; what their bases of power for sanctioning
purposes are to be; and what procedures they are to follow in making
all the different kinds of decisions necessary to clarifying and imple-
menting general community policy.272

McDougal continues:

The second kind of decisions, embraced within any comprehensive process
of authoritative decision, are those that emerge from constitutive process
for the regulation of all the community’s various value processes. These
are the decisions by which resources are allocated, planned, developed,
and exploited; by which an environment is protected or devastated; by
which populations are protected, regulated, and controlled; by which an
economy is maintained or destroyed; by which health is fostered or
neglected; by which human rights are protected or deprived; by which
enlightenment is encouraged or retarded; and so on. One might describe
this second kind or category of decisions in many different ways. For
convenience we refer to them as “public order” decisions. 273
These decisions, constitutive and public order, are made through
the operation of the two basic sources of international law, treaties
and custom. McDougal observes:

Historically, international law has been made largely in two different
ways. One way is by an explicit agreement process, in which varying
numbers of states get together and project a common policy in relatively
deliberate, explicit form. The other, and by far the most important, way
has been by unarticulated, habitual cooperative behavior in different
kinds of activities from which expectations about authority and control
are derived. In this latter modality of law-making, it is not, as some recent
clamant voices have asserted, the unilateral claim by one state that makes
law, but rather the parallel claims by many states, made in a context of
expectations of reciprocity and mutual tolerance. Fortunately, the practices
of the United Nations have given a great assist to both these traditional

272 M. McDougal, The Law of the High Seas in Time of Peace, (1973) 30
Naval War College Review 35, at p. 37. M. McDougal and W. Burke, supra,
n. 8; M. McDougal, H. Lasswell and I. Vlasic, supra, n. 8, at pp. 94-96; M.
McDougal, “International Law and the Law of the Sea”, in The Law of the
Sea, (L. Alexander, ed.).

273 M. McDougal, The Law of the High Seas in Time of Peace, ibid., at p. 37.
See: M. McDougal and W. Burke, supra, n. 8, at p. 36; M. McDougal, “Inter-
national Law and the Law of the Sea”, in The Law of the Sea, (L. Alexander,
ed.), at pp. 5-7.

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modes of law-making and are beginning to add an institutional dimension
more closely approximating genuine parliamentary enactment. 274
Applied to the Canadian Arctic initiatives, these distinctions raise
the issue of the level of decisions in question. It is clear that the
importance of this subject is due in great measure to the fact that
Canada has challenged the allegedly existing constitutive process.
With respect to the law of the sea, Canada is contending,

inter alia, that:

(1)

the “authorized decision-makers” are no longer only the
maritime states but include coastal and other states with vital
interests in the oceans;

(2)

the “freedom of the seas” policies informing the old
constitutive process are obsolete and must be revised to protect other
values, notably conservation and prevention of pollution;

(3)

the “structures of authority” provided by law of the sea
conferences and resultant conventions, as well as by public order
decisions of maritime states and resultant custom, are inadequate
and unacceptable to Canada and other states;

(4)

the “bases of power” of the old constituent structure of
authority are inadequate to enforce measures designed to remedy
unacceptable deficiencies in the law of the sea (e.g.,
the IMCO
conventions) and are insufficient to deter Canada and like-minded
states from challenging the old law of the sea.

Accordingly, Canada conceives of its claims and actions in the
Arctic as “public order decisions” contributing to a revised and
improved international constitutive process. While not entirely
discounting the possible utility of at least regional and/or functional
conferences and resultant conventions, Canada places its decisions in
the category of customary international law in the making. However,
since the Canadian initiatives are consciously cast in the form of
claims to be weighed and accepted by other states and entities in
the process of authoritative decision, it
is important to repeat
McDougal’s caution that, “it is not, as some recent clamant voices
have asserted, the unilateral claim by one state that makes law, but
rather the parallel claims of many states, made in a context of
expectations of reciprocity and mutual tolerance”.2 75

274 M. McDougal, The Law of the High Seas in Time of Peace, supra, n. 272,
at p. 38. Original emphasis. Morin, supra, n. 185, does not appear to emphasize
the need for acceptance of Canada’s unilateral initiatives through adoption of
similar claims: at pp. 159, 244.

275 Ibid.

1973]

LAW OF THE SEA IN THE “CANADIAN” ARCTIC

Just how many “parallel claims” and how much evidence of
“expectations of reciprocity” would be needed to vindicate Canada’s
initiatives are complex, difficult but necessary questions ahead. These
questions are rendered more difficult by the ambiguities noted in
this article about the real nature of the Canadian claims. Whether,
for instance, Canada ultimately claims exclusive “sovereign” rights
in the “Canadian” Arctic and whether her rationale is mainly the
“uniqueness” of the Arctic environment will affect the extent to
which clear claims of other states to exclusive “sovereign” rights
based on other “unique” considerations may be judged “parallel”
and conducive to “expectations of reciprocity and mutual tolerance”.
These difficulties of relating Canada’s claims to a possible emerg-
ing pattern of claims, however, appear to be of no greater magnitude
than the difficulties awaiting international conferences on the law
of the sea. It should be recalled that even when it was thought that
state policies and practices on the law of the sea were “ripe” for
codification, the effort was abortive in 1930.276 In 1958 and 1960 it
was hoped that notorious disagreements could be overcome at
Geneva but they were not. The extent, quality and pace of radical
challenge and abandonment of the claims and expectations of the
traditional, 1958, law of the sea provides little encouragement for
hopes for a successful comprehensive conference on the law of the
sea in the near future. Indeed, McDougal may well be right in his
long-standing skepticism about such conferences.

r

Given these difficulties, Canada and those most concerned states
might do well to seek modes of public order decision other than the
polar extremes of unilateral claims and ambitious international
conferences. If, for example, Canada would really limit its claims,
clearly renounce exclusive sovereignty, confine their scope to the
“unique” Arctic environment and seek regional/functional regimes
on the basis of the reasonableness of measures such as the 1970
Anti-Pollution Act, adequate practical relief from environmental
threats might be obtained. If the United States and other states with
vital interests in the Arctic acceded to Canada’s “unique” claims –
as unique – public order decisions might emerge that protected the

276 League of Nations, Acts of the Conference for the Codification of Inter-
national Law, (The Hague, 1930); on the failure to obtain agreement on the
width of the territorial sea, see: M. McDougal and W. Burke, supra, n. 8, at
pp. 522-26.

277 M. McDougal, “Internati6nal Law and the Law of the Sea”, in The Law
of the Sea, (L. Alexander, ed.), at pp. 3, 14; M. McDougal and W. Burke, supra,
n. 8, at pp. 4041.

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respective interests of the parties to this process of authoritative
8
decisionM

To be sure, qualification of such understandings as “unique”
would not prevent their invocation by other claimants whose
“unique” rationales might not be so persuasive. Moreover, there is
no question that a particularistic regime accepting Canada’s new
claims would contribute significantly, perhaps critically, to the broad
pattern of claims with respect to the oceans. The result might well
be serious losses for the inclusive rights of global, regional and
functional communities as well as for many states. However, unless
dramatic changes occur with respect to the prospects for reform
of the international constitutive process, the best hope would appear
to lie with limited, responsible changes in the status quo, however
imperfect rather than in the poles of a futile attempt to “hold the
line” on the traditional law of the sea or an all-or-nothing gamble
on one or even several global conferences.

It may be, of course, that Canada would not foreclose its possible
claims of exclusive sovereignty in the “Canadian” Arctic. It may also
develop that Canada is not content to rest on the rationale for its
“unique” Arctic environment but will branch out in other areas
where there is no “uniqueness” or there is a different uniqueness.
If, as pending legislation suggests, Canada extends its claims of
near exclusive jurisdiction one-hundred miles beyond its territorial
seas on its Atlantic and Pacific coasts, the strength of the argument
of uniqueness is drastically diminished. 79 We then enter the realm

278A possibly relevant recent model might be found in the U.S.-Brazilian
agreement of May 9, 1972, whereby Brazil’s claim to a two-hundred mile
limit as well as U.S. opposition thereto are “noted” and pragmatic arrange-
ments are made to protect the shrimp fisheries in the area: Agreement Be-
tween the Government of the United States of America and the Government
of the Federative Republic of Brazil Concerning Shrimp, and the Agreed
Minute Relating to the Agreement, (photostat of English Original, Department
of State, U.S.A.), Brasilia, DF, Brazil, (May 9, 1972).

279 The House of Commons of Canada, Bill C-186, 21 Eliz. II, 1972, 28th Parl.,

4th Sess., First Reading, March 28, 1972.

The Explanatory Note to the proposed legislation states:

The purpose of the Bill is to extend the concept and jurisdiction of the
Arctic Waters Pollution Prevention Act to the waters of the Pacific and
Atlantic Oceans to an extent of 100 nautical miles off the Pacific and
Atlantic Coasts.

The Bill seeks to change the title of the Arctic Waters Pollution Preven-
tion Act to the Arctic, Atlantic and Pacific Waters Pollution Prevention
Act.

I acknowledge the assistance of my student, Mr. David F. Ferreira, B.S.F.S.
1973, Georgetown, in investigating this possibility with the Canadian Embassy
in Washington. We were given the impression that it was unlikely.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

of claims such as those of the CEP states of Latin America, Brazil
and Iceland. The kind of conciliatory practical accommodations
which might meet the practical problems of the Arctic and not
unduly encourage a run-away series of exclusive claims to the oceans
would probably not be possible if Canada claimed great new areas
of the Atlantic and Pacific.

(ii) The Process of Authoritative Decision

In the unfolding process of authoritative decision with respect
to Canada’s Arctic claims, some aspects of the Lasswell-McDougal
value and phase analyses appear to be particularly significant. The
decision-makers will be mainly national decision-makers, playing
their dual role of meeting national and international responsibilities
in accordance with the concept of dddoublement fonctionnel. 2 0
Tmportant contributions will be made to the process of authoritative
decision by the executive, legislative and judicial branches of Canada,
the United States and other interested states. It is, moveover, quite
conceivable that decisions taken for private corporations, e.g.,
Humble Oil, will contribute markedly to the pattern of acceptance
or rejection of Canada’s claims.

This estimate, of course, reflects our conviction that the future
of Canada’s Arctic claims and of the law of the sea generally will
be determined by the processes of interaction, claim and authori-
tative decision yielding custom, not conventional law. We also judge
that there is little likelihood that the basic issues raised by Canada
will be subjected to international arbitration and none that it will be
brought to international adjudication.

The objectives of the authoritative decision-makers ought to be
consonant with the overriding objective of promoting “the fullest,
conserving, peaceful use of the sea by all participants for achieving
all their individual values in the greatest measure possible” 2 8’1 These
involve: (1) securing reasonable inclusive uses of the oceans; (2)
“rejection of all assertions of special interests –
that is, of claims
made irrespective of or against common interest”; (3) maintenance
of an “evolving” balance “between different common interests –
whether inclusive or exclusive” when these interests conflict.2m

280 M. McDougal and W. Burke, supra, n. 8, at pp. 36-37, 40-41; M. McDougal,

H. Lasswell, and I. Vlasic, supra, n. 8, at pp. 96-101.

281 M. McDougal and W. Burke, supra, n. 8, at p. 37.
2s2 Ibid.

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Applied to Canada’s case, the objectives of authoritative decision-

makers should include the following:

(1) determination of the limits of “reasonable inclusive uses
of the oceans”, i.e., what should be the width and character of terri-
torial waters, contiguous zones and international straits in the light
of emerging trends in the processes of interaction, claims and autho-
ritative decision;

(2)

identification and rejection of “special interests” incom-
patible with the “common interests”, if there are indeed any such
“special interests” in the Canadian case;

(3)

formulate the “evolving balance” between freedom of navi-
gation, scientific activity, participation in the appropriation of the
living and mineral resources of the oceans, on the one hand, and
protection of the environment of the Canadian Arctic, the Canadian
hinterland, and all areas and activities affected by them, on the other.
If we are correct in our estimates regarding the form in which
constituent and public order decision about Canada’s Arctic claims
will be taken, the arenas in which the dynamics of claims and
counterclaims produce new expectations will be disorganized and
bilateral 23s As in the case of controversies involving claims such as
those of the Latin American CEP states and Iceland, the arenas for
decision may be ships, aircraft, icy waters, remote control stations.
Or the arenas may be in foreign offices, domestic legislatures and
national courts.

Organized arenas such as UN Committees, General Assembly
proceedings, and international conferences serve as points of claim,
counter-claim and decision. But it appears likely that these arenas
will be relevant to the determination of disputes over Canada’s
claims more in terms of the total pattern of acceptance or rejection
of them in all arenas than on the basis of their supposed superior
weight or authority.

The bases of power available to authoritative decision-makers,
if our previous estimate is valid, will tend to be national bases of
power.2 4 The elements of national power surveyed in outlining the
process of interaction will furnish the foundations for determining
whether authoritative decisions become controlling decisions.

Thus, the power configurations in U.S.-Canadian relations may
determine in part the extent to which the parties continue or alleviate
their present confrontation. If somehow the process of authoritative

283 Ibid., at pp. 38-39.
284 Ibid., at p. 39.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

decision produces perspectives rejecting or limiting Canada’s claims,
the power position of the U.S. might provide bases for pressures to
secure Canada’s compliance with the emerging law. At the moment
this possibility seems remote.

If, as seems more likely, the process of authoritative decision
does not produce clear answers to the issues raised by Canada, or
shows trends supportive of Canada’s claims, a difficult problem will
have to be faced. This is the problem of enforcing customary inter-
national law against the will of a powerful state which has vital
interests at stake and can legitimately claim that it has opposed the
alleged new legal perspectives to which it is urged to conform.

This problem looms as a major possibility. In this article we
have emphasized the extent to which U.S.-Canadian differences
over Arctic policies have been questions of principle. But they are
also questions of vital interest, notably with respect to future appro-
priation of the oil and gas resources of the area. The United States,
confronted by a growing consensus supporting Canada’s position
and faced with grave questions of protection of fuel sources, may be
too powerful to handle. Or, a vulnerable U.S. may be amenable to
compromises. In any event, the bases of power of the states concern-
ed –
and we have not discussed here the possible combinations of
national power of other states, such as the Soviet Union – will play
a central role in determining the future perspectives of the law of
the sea in the Arctic.2 8

If it develops that there is resistance by Canada or the United
States to an emerging consensus within the process of authoritative
decision,
traditional
strategies: political-diplomatic-legal, ideological, economic, military,
in support of their positions.””6 It is to be expected that the use of
the political-diplomatic-legal instrument will dominate the interac-

the nations concerned may employ

the

2s A potent influence will surely be the U.S. “energy crisis”. The U.S. has
reserves of oil and natural gas for only ten and eleven years respectively. See:
U.S. Geological Survey estimates published in “America’s Energy Crisis”,
Newsweek,

(January 22, 1973), at pp. 52-54, 59.

See generally: U.S. Department of Interior, U.S. Energy Outlook, vol. 2;
American Gas Association, Arlington Virginia, 26 Reserves of Crude Oil, Natu-
ral Gas Liquids and Natural Gas in the United States and Canada, (May,
1972), at pp. 1-2.

The upshot of current estimates of U.S. needs and of U.S. and Canadian
oil and gas reserves is that Canada has untapped and unexplored fuel resources
which will be greatly desired by the United States. Whether these needs will
serve to strenghten or weaken the total power positions of the two parties
remains to be seen.

281 M. McDougal and W. Burke, supra, n. 8, at p. 40.

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tion. Each side will seek to identify its position with the “true”
interests of the international community. Supporting such efforts,
major campaigns may be waged to influence national and inter-
national public opinion. Given growing concerns for environmental
protection on the one hand and for assurance of adequate fuel on
the other, the psychological (ideological in the Lasswell-McDougal
system) instrument may play an extremely important role.

We have already pointed out the elements of economic inter-
dependence in U.S.-Canadian relations and the potential effectiveness
of economic coercion by the U.S. It would be tragic if this potential
were to be mobilized for coercive purposes. But tragic or not, if the
stakes grow increasingly, economic coercion seems quite likely. At
this point it can only be emphasized that any use of economic
pressures by either party to the dispute over Arctic policies should
be made with the “right intention” of supporting legitimate exclusive
as well as inclusive claims.

It is barely conceivable that the military instrument might be
used by the parties to the Arctic controversy. It is possible that
threat or use of military force in some local situation might provoke
a military response. Surely such an eventuality should be avoided
and if confronted, contained. Unfortunately the “self-defense” ra-
tionale and spirit of Canada’s initiative tends to make such an
eventuality credible. Moreover, unlike the U.S. relation with the
CEP Latin American States in the “Tuna War”, use of force in U.S.-
Canadian Arctic relationships would probably be seen as involving
vital interests. It would be imprudent to assume that these problems,
if left unresolved, could not lead to military confrontations.

The outcomes of the process of authoritative decision will reveal
whether or not the dialectical process of claim and counterclaim has
produced law to resolve disputes over the Canadian Arctic. This law,
in the Lasswell-McDougal jurisprudence, must contain two basic
elements: patterns of authority and patterns of control. Decisions
relative to the Arctic claims will be “authoritative” if they meet
”community expectations about how decisions should be made and
about which established community decision-makers should make
them”. They will be “controlling” if they are effectively sanctioned .1 7
The forms taken by the products of the process of authoritative
decision may be characterized in terms of prescriptions emanating
from the sources of international law. They may also be charac-
terized in terms of the Lasswellian tasks or “authority functions”

287 1. Moore, “Prolagomenon to the Jurisprudence of Myres McDougal and

Harold Lasswell”, in (1972) 51 Law and the Indo-China War, supra, n. 8.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

of the decision phase, to be treated at the end of this article. The
basic choice with respect to possible prescriptions remains that
between conventions and custom. We have repeatedly indicated
our preference for custom as the best hope for an adequate law
of the sea.

Among the reasons for this preference, in an age much given
to efforts to solve problems through conventions drafted by near-
global conferences, are the following:

(1) Custom reflects state expectations better than conven-
tions; conventions are useful to the extent they relate to the state
expectations about patterns of authority and control.

(2) Given the large number and heterogeneity of the inter-
national persons called upon to make conventional international
law, custom is a more effective way of obtaining maximum consensus
among the parties most vitally concerned with an issue.

(3) Customary law has the flexibility to deal with the changing
character of international interaction and claims relative to the
law of the sea.

Applied to the Canadian Arctic we expect the outcome of the on-

going process of authoritative decision to be:

(1)
(2)

recognition of the twelve-mile limit for territorial waters;
recognition of some kind of anti-pollution contiguous zone
beyond the twelve-mile territorial sea. The principal unresolved issue
is not the general acceptability of such a zone or its width, whether
one-hundred miles or some other distance, but its restriction of
exclusive coastal rights to reasonable measures necessary to the
limited function of preventing pollution and its protection of other
inclusive rights such as freedom of access;

(3)

resolution of the impasse between exclusive claims to con-
trol straits affected by 12-mile limits and inclusive rights of transit
through international straits.

The effects of these processes will be seen in the extent to which
reasonable exclusive rights are balanced with inclusive rights. This
balance is a two-fold matter. It involves the substantive content of
exclusive and inclusive rights as well as the procedural precedents
and expectations created.

We have emphasized in this article that the Canadian Arctic claims
are important both for their content and for their possible impact on
expectations about the way in which the law of the sea will be made.
Given power bases of the main participants and the historic primacy
of the law of the sea in the development of international law

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generally, the effects of the process relative to the Canadian Arctic
may have vital impact on the future of international law.

The conditions in which the world process of authoritative
decision produces and elaborates new law promise to test the
durability and flexibility of that law. We have mentioned earlier
some conditions already to be found in the process of interaction,
viz., changing structure and dynamics of the international political
system, the changing state of science and technology, and new
patterns of interdependence with respect to problems such as fish
and fuel resources and threats of pollution.288

Additionally, the state of the world process of authoritative
decision is itself a critical element in future conditions. Successes,
failures and prolonged impasses within the process of authoritative
decision will contribute to trends in the processes of interaction and
claim. The very increase in attention currently being drawn to the
law of the sea may make its fate more significant to the broad thrust
of international politics than has been the case with any attempt of
modern history to strengthen international law.

(iii) The Decision Phases of the Process of Authoritative Decision
Finally, it is useful to note the functions that must be performed
by authoritative decision-makers in fulfillment of their functions on
behalf both of their national and of the international community.
All have said that these decision-makers are primarily responsible
members of the relevant executive agencies, of the legislature, and
of the courts in Canada and the United States.

The intelligence phase involves the “transmission or withholding
of information relevant to policy action”.2 This phase is already
well advanced in Canada and the United States. One reason for the
substantial literature on this subject is the open and generous
public information policies of Canada which makes necessary docu-
mentation readily available. Pertinent information about the issues
in the Arctic generally is easily obtained. Since responsible judg-
ments as to the reasonableness of the claims turns in great measure
on informed estimates of practical questions such as appropriation
of resources and estimates of pollution, it is obviously most beneficial

288 Supra, at pp. 352-53.
289 H. Lasswell, “Future Systems of Identity in the World Community”, in
4 The Future of the International Legal Order, (C. Black and R. Falk, eds.),
at p. 30; on the decision phase see: M. McDougal, “International Law and the
Law of the Sea”, in The Law of the Sea, (L. Alexander, ed.), at pp. 11-13; M.
McDougal, H. Lasswell and I. Vlasic, supra, n. 8, at pp. 113-127.

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LAW OF THE SEA IN THE “CANADIAN” ARCTIC

to the overall process of authoritative decision to begin with excellent
intelligence.

The promotion phase involves “the active mobilization of support
for major policies”. 2 0 At this point in the evolution of problems in
the Arctic, the promotion task is one of competitive public advocacy.
The nature of the subject matter is such that this competitive public
advocacy will not address strictly national audiences. Concern for
the practical stakes such as energy sources and pollution is trans-
national. Sympathy for would-be enlightened unilateralism or for
collective approaches exists both in Canada and the United States.
The competition in promoting national policies may result in altering
those policies as well as in contributing to international consensus.
Prescription is an ultimate object in this process, the “crystalli-
zation of general policies”. 91 We have suggested that prescription
take the form of contributions to customary law and that its
formulations be flexible and capable of adaptation to rapidly chang-
ing conditions.

The invoking phase “is the provisional application of prescrip-
tions to concrete situations”. 29 2 Here is the point at which Canadian
pollution prevention officers, judges and diplomats will be making
Canada’s policies operational. In reaction, commanders of U.S.
private vessels, courts and diplomats will resist, accept or compro-
mise.

The application phase brings the final application of the pres-
cription.2 93 If consensus is reached between Canada and the U.S.,
as well as other interested parties, application will be authorized
by some kind of explicit or implicit international understanding.
If there is no consensus, application will mean the highest form of
a controverted policy.

Termination is the phase for “the ending of a prescription and
the disposition of claims generated when the prescription was in
force”.2″ Quite possibly this stage might involve withdrawal of U.S.
claims against Canada based on traditional legal prescriptions. Or,
it could become necessary if Canada retreats from some of its
positions. Given the changing, patently unsatisfactory state of most

290 H. Lasswell, “Future Systems of Identity in the World Community”, in
4 The Future of the International Legal Order, (C. Black and R. Falk, eds.),
at p. 30.

291 Ibid.
292 Ibid.
293 Ibid.
294 Ibid.

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of the international law prescriptions relating to the Canadian
Arctic, considerable terminating is inevitable. For example, the
limited contiguous zone permitted by Article 24 of the 1958 Geneva
Convention is clearly outmoded and should be terminated.

Finally, “the appraisal phase is the assessment of success or
failure in achieving public policy and the provisional assignment
of responsibility”.2
1 Will the state of and prospects for the law of
the sea and the exclusive and inclusive interests it seeks to protect
and promote be better off when Canada’s Arctic claims reach the
point of resolution within the world process of authoritative deci-
sion? Despite the early reactions, generally along national lines, of
Canadian and U.S. publicists, it is fair to say that we cannot possibly
make more than a provisional appraisal at this point. In the broadest
terms we may conclude as follows: If Canada restricts her claims
to her unique Arctic environment and administers her pollution
regime so as to respect the inclusive rights of others, her claims
for territorial seas and a contiguous zone will be reasonable and
worthy of acceptance by other states. Her position will be strength-
ened by adopting an attitude towards the Northwest Passage that
is consonant with the U.S.-Soviet position on straits. Such an atti-
tude will remove a problem that is probably one more of principle
than of practical import.

If, on the other hand, Canada extends its claims to its East and
West coasts, if its regime is effectively exclusive, if it becomes ’em-
broiled in an unnecessary controversy over international straits,
Canada will not have contributed to the success of a world public
policy for the oceans. Canada has asserted at every point in this
important chapter in the history of the law of the sea that it seeks
a better law for all. It is to be hoped that Canada will indeed fol-
low a course that will enable those who appraise this chapter to
judge that the law of the sea profited by Canada’s Arctic initiative.

295Ibid., at p. 31. The inquiries of Mr. David E. Ferreira, supra, n. 279, at
the Canadian Embassy in Washington produced the impression that Canada’s
enforcement of the Arctic anti-pollution regime has been minimal, with primary
reliance on voluntary observance.