Canada's Arctic Waters: Sector Theory to Historic Waters
By the middle of the 20th century, the Canadian claim to the Arctic lands and islands of the archipelago had become generally recognized by other Arctic states.40 In addition, there was little protest to the Canadian claim that the waters of Hudson Bay and Hudson Strait were Canadian waters by “
inline historic title in accordance with universally accepted international law doctrine applying to historic bays.”41
However, Canada's claim to the Arctic waters between those islands and the right to control access to the straits – collectively known as the Northwest Passage – has never achieved the same level of international recognition. The original transfers of title from Great Britain to Canada made no mention of the Arctic waters in their descriptions, but instead focused upon the territory and islands.42 The sector theory – that Canada could claim sovereignty between two lines of meridian north to the Pole – would be proposed to buttress those Arctic claims of title from 190743 until its quiet displacement in the early 1980's. Since the sector theory achieved limited official government currency,44 and lacked support among the other Arctic States,45 the Canadian government hesitated to apply it to the waters and islands of the Arctic Archipelago,46 and as a result it was denied any measure of general international acceptance.
In the interim, the long international consensus enjoyed by the law of the sea was being challenged by the rapidly expanding and competing national claims of adjacent coastal jurisdictions and territorial sea limits. The 1945 Truman Proclamations47 had prompted “
a rash of claims to very extensive territorial sea or fisheries jurisdictions, followed by a steady increase in the number of states claiming jurisdiction over their territorial seas or for fishing purposes up to a limit of twelve miles.”48 For Canada, the post-war years had seen a rapid expansion of foreign fishing off her Atlantic and Pacific coasts and the extension of fishery regulations to twelve miles was considered a government priority. In addition, the 1951 International Court of Justice decision in the Anglo-Norwegian Fisheries Case49 had generated interest in the drawing of straight baselines around the Canadian coastlines.50
That the primary negotiating objective of the Government of Canada was to obtain further international authority over the regulation of its coastal fisheries was reflected in its negotiations during the first two Law of the Sea Conferences. At the First Conference on the Law of the Sea in February 1958, Canada had intended to seek agreement on the extension of national jurisdiction over coastal fisheries to twelve miles. Mindful of her own requirements to maintain global trade, Canada had little enthusiasm for the establishment of a twelve-mile territorial sea, as it wished to avoid the “
undesirable consequences for air and sea navigation” and sought to limit the twelve-mile jurisdiction to fisheries regulation and enforcement.51 However in the end, the results of the First Conference were the four 1958 Conventions and one Optional Protocol that did not set out any prescribed limit for a territorial sea or contiguous zone.52
The Second Conference on the Law of the Sea in 1960 was called “
for the purpose of considering further the questions of the breadth of the territorial sea and fishing limits”.53 The Canadian and American delegations jointly proposed a six-mile territorial sea and a further six-mile exclusive fishing zone subject to a ten-year phasing out period for the fishing operations of those countries which had fished regularly in the outer zone during the previous five years.
In the end result however, no agreement was reached on either the breadth of either the territorial sea or of the fishing zone. The Government of Canada, after a period of consultation with its allies and like-minded states, acted unilaterally in passing in July of 1964 the Territorial Sea and Fishing Zones Act54 establishing both a 3-mile territorial sea and a 12-mile exclusive fisheries zone. This legislation also authorized – for the first time in Canadian waters - a straight baseline regime: regulations were issued in 1967 establishing straight baselines on areas of the Atlantic coast and, in 1969, they were issued for the Pacific coast.55
The 1968 election of the Trudeau government augured a new direction in Canadian foreign policy – "unilateralism" was the watchword - with emphasis upon the protection of Canadian national self-interest, rather than broader continental or internationalist interests.56 At the same time, the wreck of the oil tanker Torrey Canyon off the Cornish coast in 196757 and the demonstration transits of the SS Manhattan in 1969 and 1970 through the Northwest Passage had galvanized Canadian public and parliamentary concern about the risks of oil pollution and, in particular, the risk of oil pollution in the waters of the Arctic.58
The Canadian Government's response to these events represented a critical departure from its long-standing oceans policies. On the diplomatic front, Canada withdrew from the compulsory jurisdiction of the International Court of Justice in relation to questions of Canada's Arctic claims.59 In Parliament, the Government amended the Territorial Sea and Fishing Zones Act60 – extending the territorial sea to 12 nautical miles – and enacted the Arctic Waters Pollution Prevention Act61 – extending a pollution enforcement zone into "arctic waters" 100 nautical miles from the low-water mark adjacent to the Arctic Islands to the east and the 141st meridian to the west. The United States government immediately protested the extension of the territorial sea and the new enforcement zone as illegal under international law62 and Canada replied “
that the unilateral act was taken in order to protect the environment until such time as the international community agreed to act cooperatively and set new and necessary standards of international conduct.”63
In taking these unilateral actions the Government of Canada served notice that it was merely pursuing the functional enforcement powers - or limited sovereignty – necessary to achieve “
a specific and vital purpose” such as pollution prevention.64 A popular interpretation for some in Canada was that it represented the Government's rejection of the "traditional" law of the sea in favour of a more modern approach. J.A. Beesley, the Legal Advisor/Director General of the Bureau of Legal and Consular Affairs for the Department of External Affairs expressed this view in a contemporary article:
"The traditional law of the sea in general is oriented towards the concept of unfettered freedom of navigation on the high seas and thus favours flag-state jurisdiction while seeking to limit the jurisdiction of coastal states. As a result this essentially laissez-faire system is inadequate in its provisions for the prevention and control of marine pollution. Those provisions, as they are found in various conventions, do not properly recognize the paramount need for environmental preservation and do not strike a proper balance between the interests of the flag states in unfettered rights of navigation and the fundamental interest of the coastal states in the integrity of their shores. Flag-state jurisdiction does not carry with it, for instance, the logical consequence of flag-state responsibility for damage to the environment. The whole system is particularly inadequate, as the principle on which it rests is particularly irrelevant, to the special situation pertaining to the Arctic."65
While this functional approach would continue to achieve a degree of international legal acceptance, it could neither serve as a legal nor political substitute for absolute sovereignty. As observed in a February 27, 1973 letter from the Legal Bureau of the Department of External Affairs:
"…the Arctic Waters Pollution legislation does not make and does not require an assertion of sovereignty. The legislation is related to pollution control in Arctic waters only. It represents a lawful extension of a limited form of jurisdiction which was required to ensure the preservation of the Arctic environment, having regard to the unique nature and particular vulnerability of this environment, the disastrous consequences which could flow from its pollution or degradation, and the especially severe risks involved in the navigation of Arctic waters."66
In addition to the new legislation and to the withdrawal from the compulsory jurisdiction of the I.C.J., the Government of Canada prepared to engage in the negotiations in preparation for the Third Conference of the Law of the Sea which was to commence in the summer of 1974. While there were a number of important issues on the Conference's agenda that interested many coastal and maritime states around the globe – including regulation of anadromous species (salmon) and the passage regime through international straits – “
observers concluded that acceptance of the Arctic waters regime was a dominant objective in Canada's UNCLOS policies.”67 This objective was sought by openly pursuing the "functional approach"68 in seeking international agreement on Canada's right to impose national pollution regulations in Arctic waters and to “
refrain from making a commitment on the straits issue until the question of special provisions for Arctic waters was resolved.”69 In hindsight one may observe that this diplomatic embrace of the functional approach precluded the championing of wider questions of absolute sovereignty, including that of Arctic sovereignty.
The agenda and course of negotiations ultimately obliged Canada in 1976 to find a compromise with the United States. While Canada was able to secure a provision authorizing non-prejudicial national standards to "icecovered areas," in return Canada acquiesced to American proposals on the transit passage regime for international straits.70 Hailed in Canada as a success, the "Arctic exception" survived the remaining 6 years of treaty negotiations and was included as Article 234 in the final draft of the Convention adopted in December of 1982. The provision stated:
- Article 234
- Ice-covered areas
Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climactic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.
The provision was not situated in the portion of the Convention that dealt with the international straits regime, and as a result it has been argued by commentators in Canada that, “
ergo the international straits regime is not applicable to the Northwest Passage.”71 However, it is more accurate to simply state that regardless of whether the adjacent waters are considered to be an international strait or not, if they are ice-covered for most of the year the coastal State can adopt and enforce the more restrictive laws and regulations for the prevention, reduction and control of marine pollution.72
In addition to the extension of pollution control in Arctic waters, in 1978 the Government of Canada prescribed a Fishing Zone in the area of the Arctic Ocean adjacent to the coastline and islands of the Canadian Arctic and extending “
200 nautical miles from the nearest point on the baseline from which the territorial sea of Canada is measured in the Beaufort Sea, the Arctic Ocean and the Lincoln Sea, but does not include any areas of the internal waters or territorial sea of Canada.”73
It should be recalled that the Third Convention negotiations were not the only ongoing matters related to maritime sovereign rights involving Canada and the United States. For example, in 1977 the Canadian Government had adopted a 200-mile exclusive fishing zone in the Atlantic Ocean which relied upon straight baselines.74 In addition, in 1981 the International Court of Justice (I.C.J.) began hearing the Gulf of Maine Case75 to resolve the outstanding maritime and continental shelf delimitation question between the two countries on the Atlantic coast. The I.C.J. considered substantial evidence and complex legal arguments in order to determine “
the criteria that it regards as the most equitable for the task to be performed” and “
the method or combination of practical methods whose application will best permit their concrete implementation.”76 The Court rejected the equitable criteria proposed by both parties and instead recognized the primacy of the actual physical geography.77 In relation to the most contentious segment of the delimitation in the vicinity of the Georges Bank, the Court accepted Canadian arguments to reject the American assertion of "historic rights" and instead adopted the essence of "equidistance – special circumstances" test from Article 6(2) of the 1958 Territorial Sea Convention.78 While Canada would not be bound by either its arguments before the I.C.J. or to accept the Court's diminishment of the legal force of "historic rights" as determinative in the Arctic context, there was a clear erosion of the general principle in international law to respect "historic rights" in maritime delimitation claims.
In the summer of 1985 the U.S. State Department informed representatives from Canada's Department of External Affairs that the U.S. Coast Guard icebreaker Polar Sea would be transiting the Northwest Passage in July and August.79 While the Canadian Government did not admit that the voyage of the Polar Sea threatened Canadian Arctic "sovereignty", on the 10th of September, 1985 the Minister of Foreign Affairs, Joe Clark, made what would become the last significant formal Government of Canada statement in relation to the nature of its claims over the waters of the Arctic Archipelago. Clark declared that the Government of Canada would “
exercise full sovereignty in and on the waters of the Arctic Archipelago and this applies to the airspace above as well.”80 He indicated that this sovereignty would be secured by a number of legislative, regulatory, and operational initiatives. The most significant of these was the immediate issuance of an Order-in-Council establishing straight baselines to come into effect on January 1, 1986 around the perimeter of the Arctic Archipelago to “
define the outer limit of Canada's historic internal waters” and the extension of Canada's territorial waters 12 nautical miles seaward of those baselines.81 The Government intended to seek the early adoption of the Canadian Laws Offshore Application Act to enable the application of Canadian civil and criminal laws in these offshore areas for the first time. Further, the Government expressed its intention to enter talks with the U.S. to secure an agreement on cooperation in Arctic waters and to immediately withdraw the reservation to the compulsory jurisdiction to the I.C.J. by a letter to the Secretary-General of the United Nations.82 Finally, the Government announced its intention to increase aircraft surveillance and naval activity in the eastern Arctic and to construct a Polar Class 8 icebreaker.
The Government was clear that its claim would be complete: Canada would assert "full sovereignty" over the waters of the Arctic Archipelago. The Minister of Foreign Affairs, Joe Clark, was just as explicit in declaring that Canada's claim was far more extensive than mere functional sovereign rights:
"The exercise of functional jurisdiction in Arctic waters is essential to Canadian interests. But it can never serve as a substitute for the exercise of Canada's full sovereignty over the waters of the Arctic Archipelago. Only full sovereignty protects the full range of Canada's interests. This full sovereignty is vital to Canada's security. It is vital to Canada's Inuit people. And it is vital even to Canada's nationhood."83
While the American Government protested the Canadian claims in 1985 and 198684, the announcement of the initiatives was well-received by many in Canada85 and the straight baselines were proclaimed. However, despite these temporary displays of enthusiasm, the remaining initiatives were neither enacted nor introduced as described by Mr. Clark. The Polar Class 8 icebreaker was never built and the increased surveillance quickly reduced to one or two flights per year. The Canadian Government enforcement presence in the Arctic was allowed to dissipate once more.
40 V. Kenneth Johnson, "Canada's Title to the Arctic Islands" (1933) 14 Canadian Historical Review 24. Robert Reid, "The Canadian Claim to Sovereignty over the Waters of the Arctic" (1974) 12 Can. Y.B. Int'l L. 111 at 114. The arbitral decisions in the Island of Palmas Case (1928) 22 Am. J. Int'l L. 867 and the Clipperton Island Case (1932) 26 Am. J. Int'l L. 390, and decision of the Permanent Court of International Justice in the Eastern Greenland Case, (1933) Per. Ct. Int. Jus. Ser. A/B, No. 53, at 22 all confirmed that “
the requisites of effective occupation depended upon the circumstances of the territory, and that settlement or local administration was not necessarily required for uninhabited territory.”
41 Ivan Head, "Canadian Claims to Territorial Sovereignty in the Arctic Regions" (1963) 9 McGill L. J. 200 at 219.
42 The first Imperial Order in Council dated 23 June, 1870, reproduced in Statutes of Canada, First Parliament, 35th Vict., 1872, at lxiii, when the British transferred “
all lands and Territories within Rupert's Land” that had been originally granted in 1870 to the Hudson's Bay Company. As a result of the public concern that this original grant was insufficient, on the 3rd of May, 1878, the Parliament of Canada adopted a joint address of both the Canadian House and Senate to the British Parliament requesting an acceptably complete description. Despite this Canadian entreaty the British government only agreed to declare in Imperial Order in Council, 31 July, 1880, reproduced in Statutes of Canada, Fourth Parl., 44th Vict., Vols I-II, 1880-81, ix-x, that: “...
all British Territories and Possessions in North America, not already included within the Dominion of Canada, and all Islands adjacent to any of such Territories or Possessions, shall (with the exception of the Colony of Newfoundland and its dependencies) become and be annexed to and form part of the said Dominion of Canada….”
43 In 1907, Senator Pascal Poirier proposed a resolution before the Canadian Senate formally declaring that Canada would claim possession of the lands and islands “
that are to be found in the waters between a line extending from the eastern extremity north, and another line from the western extremity north.” (Canadian Senate Debates, 20 February, 1907, 271).
44 In 1926 the Government of Canada established by Order in Council (Canada Gazette, 31 July 1926, 382) the Arctic Islands Preserve, which described the northern portion of the Preserve using sector terminology. In addition, Lester Pearson, the Canadian Ambassador to Washington at the time, wrote in 1946 in an article published in Foreign Affairs: “
A large part of the world's total Arctic area is Canadian. One should know exactly what this part comprises. It includes not only Canada's northern mainland but the islands and frozen sea north of the mainland between the meridians of its east and west boundaries, extending to the North Pole.” Lester B. Pearson, "Canada Looks Down North" (July 1946) 24 Foreign Affairs 638.
45 Reid, supra note 40 at 116. Denmark, Norway, and the United States have consistently denied the application of the sector theory doctrine to the Arctic region. The Soviet Union issued a decree in 1926 claiming all the lands discovered and yet to be discovered in its sector, but had not applied the sector theory to the ice or waters beyond her territorial limits of 12 miles.
46 In 1956 the Minister of Northern Affairs and Natural Resources, Jean Lesage, stated to the House of Commons (1956 Debates, House of Commons, Canada, vol. 7, 6955):
"We have never subscribed to the sector theory in application to the ice. We are content that our sovereignty exists over all the Arctic Islands. There is no doubt about it and there are no difficulties concerning it . . . We have never upheld a general sector theory. To our mind the sea, be it frozen or in its natural liquid state, is the sea, and our sovereignty exists over the lands and over our territorial waters".
On the 10th of March 1969, Prime Minister Trudeau responded to a question from John Diefenbaker in the House of Commons (House of Commons Debates, Vol. VI, 1969, 6396), that:
"I believe the sector theory applies to the seabed and the shelf. It does not apply to the waters. The continental shelf is of course under Canadian sovereignty – this is the seabed, but not the waters over the shelf".
However, later in the same Parliament on the 15th of May, 1969, the Prime Minister made the following statement concerning Canadian sovereignty in the Arctic, referring to an earlier statement in 1958 by the then minister of northern affairs:
"The area to the north of Canada, including the islands and the waters between the islands and areas beyond, are looked upon as our own, and there is no doubt in the minds of this government, nor do I think was there in the minds of former governments of Canada, that this is national terrain".
The Prime Minister continued, observing that it was known that not all countries would accept the view that the waters between the islands of the archipelago are internal waters over which Canada has full sovereignty, and concluded that “
the law of the sea is a complex subject which, as can be understood, may give rise to differences of opinion.”
47 Official Documents, 40 Am. J. Int'l L. Sup 45 (1946). On 28 September, 1945 American President Truman issued Presidential Proclamation 2667 on the Continental Shelf and Presidential Proclamation 2668 on the Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas.
48 A.E. Gotlieb, "The Canadian Contribution to the Concept of a Fishing Zone in International Law" (1964) 2 Can. Y.B. Int'l L. 55 at 59.
49 Anglo-Norwegian Fisheries Case (Fisheries Case),  I.C.J. Rep. 116.
50 Gotlieb, supra note 48 at 62: “
The Court's decision and its application to Canada were often discussed in parliament, and demands made that the government declare its position with regard to the status of specific bodies of water off her coasts.”
51 For a review of the Canadian position during the negotiations, see Gotlieb, supra note 48 at 64. For the American perspective, see Arthur H. Dean, "Freedom of the Seas" (1958-1959) 37 Foreign Affairs 83 and Arthur H. Dean, "The Second Geneva Conference on the Law of the Sea: The Fight For Freedom of the Seas" (1960) 54 Am. J. Int'l L. 751.
52 Convention on the Continental Shelf, entered into force on 10 June 1964, U.N. Treaty Series, vol. 499, p.311; Convention on Fishing and Conservation of the Living Resources of the High Seas, entered into force on 20 March 1966, U.N. Treaty Series, vol. 559, p.285; Convention on the High Seas, entered into force on 30 September 1962, U.N. Treaty Series, vol. 450, p.11, p.82; Convention on the Territorial Sea and the Contiguous Zone, entered into force on 10 September 1964, U.N. Treaty Series, vol. 516, p.205; Optional Protocol of Signature concerning the Compulsory Settlement of Disputes, entered into force on 30 September 1962, U.N. Treaty Series, vol. 450, p.169.
53 Off. Rec. of 6th Committee, 13th session, at 161. As noted by Gotlieb, supra note 48 at 64, the 1960 Conference was convened by General Assembly resolution 1307 (XIII).
54 S.C. 1964, c. 22. Section 3 provided for the 3-nm territorial sea and section 4 provided for the fishing zones.
55 Order-in-Council PC 1967-2025, 26 October 1967 established the straight baselines on the Atlantic coast, and Order-in-Council PC 1969-1109, 29 May 1969 established them on the Pacific coast. J. Bruce McKinnon, "Arctic Baselines: A Litore Usque Ad Litus" (1987) 66 Canadian Bar Review 790 at 797. According to Mr. McKinnon, because the only references to baselines before 1964 were to "normal" baselines following the low water mark on the coast, application of s. 5(3) of the Territorial Sea and Fishing Zone Act left a high seas corridor through the Northwest Passage until Canada increased the width of her territorial sea to twelve miles in 1970.
56 Ivan L. Head, "Foreign Policy of the New Canada" (1971-1972) 50 Foreign Affairs 237. The Foreign Policy for Canadians, Canada Department of External Affairs was released in 1969 and hailed as a departure from the traditional "helpful fixer" role. The policies were to “
accord with our national needs and resources, with our ability to discharge Canada's legitimate responsibilities in world affairs”.
57 In March of 1967 the Torrey Canyon – a tanker sailing under Liberian flag and carrying approximately 120,000 tons of crude oil from Kuwait – grounded on the Seven Stones Reef between Lands End and the Scilly Isles. The RAF and RN bombed the "supertanker" in an abortive effort to burn off the oil. The oil slick contaminated 70 miles of Cornish coast and thousands of seabirds were killed as a result of both the oil and the detergent used to disperse the slick.
58 In the summers of 1969 and 1970, the SS Manhattan conducted demonstration transits between the new Alaskan Prudhoe Bay oil fields and the east coast of the United States. During the 1969 transit there was a Canadian government official on board the Manhattan – RCN Capt(N) T.C. Pullen – and the Canadian Coast Guard Icebreaker J.A. Macdonald accompanied the transit. During the 1970 transit, the Manhattan took a route different from the first and was again accompanied by the J.A. Macdonald. Kenneth C. Eyre, "Forty Years of Military Activity in the Canadian North, 1947-87" 40:4 Arctic 292 at 296, described the Canadian public response to the transits as near-hysteria.
59 Canadian Declaration Concerning the Compulsory Jurisdiction of the International Court of Justice, reprinted in 9 I.L.M. 598 (1970). Mitchell Sharp, then Canadian Minister for External Affairs, admitted that Canada was “
not prepared to litigate with other states on vital issues concerning which the law is either inadequate, non-existent or irrelevant to the kind of situation Canada faces, as in the case of the Arctic.” Canada, House of Commons, Debates, Vol. 6, at 5952 (April 16, 1970). See also Allan Gotlieb and Charles Dalfen, "National Jurisdiction and International Responsibility"  67 Amer. J. Int'l L. 229 at 235: The authors stated that this withdrawal from the compulsory jurisdiction of the I.C.J. was, from the standpoint of Canada's approach to international law, “
the most decisive act in the whole Canadian story over the past two decades...” They further suggested the reason for the withdrawal was that this “
action made it possible for the Canadian Government to avoid the necessity of seeking compromise resolutions or agreements. It was now free to act in the absence of agreement; it became free resolutely to pursue stringent and more absolute concepts of international responsibility when its national self-interest was affected and to implement these concepts unilaterally in the absence of agreement.”
60 Act to Amend the Territorial Sea and Fishing Zones Act, c. 68, 1969-70 S.C. 1243 (1970) (Can.).
61 Act to Prevent Pollution of Areas of the Arctic Waters Adjacent to the Mainland and Islands of the Canadian Arctic (Arctic Waters Pollution Prevention Act (AWPPA)), c. 47, 1969-70 S.C. 653 (1970)(Can.). The Act received Royal Assent on June 26, 1970 and was proclaimed in force on August 12, 1972. The AWPPA prohibited the deposit of "waste" in Arctic waters; allowed the Governor in Council to prescribe "shipping safety control zones" in any area of the Arctic waters, make regulations relating to navigation in the zones and prohibit entry into the zone if it didn't meet the prescribed regulations. Regulation SOR/72-253 was issued in July 1972 and required all ships traveling through the shipping control zone to submit evidence of financial responsibility. Regulation SOR 72-303 designated 16 shipping control zones, which were established according to seasonal ice conditions throughout the Archipelago within 100 nm of the coastlines (normal baselines). The AWPPA is not only still in force, but proposals are presently in train to extend its application. In August 2007 Prime Minister Stephen Harper announced the introduction of new legislation extending the pollution prevention zone in arctic waters from 100 to 200 nm, extending the NORDREG reporting zone to 200 nm, and introducing a mandatory ship reporting system . Bill C-3, An Act to amend the Arctic Waters Pollution Prevention Act (S.C. 2009, ch. 11) received Royal Assent on the 11th of June 2009 but has not yet been brought into force.
62 Department of State Statement on Government of Canada's Bills on Limits of the Territorial Sea, Fisheries and Pollution, U.S. Department of State Press Release No. 121, April 15, 1970, reprinted in (1970) 9 I.L.M. 605. On April 17, 1970 the Canadian Secretary of State for External Affairs tabled in the House of Commons a Response to the American Statement, also reprinted in (1970) 9 I.L.M. 607.
63 Head, supra note 56 at 242. See also Michael M'Gonigle, "Unilateralism and International Law: The Arctic Waters Pollution Prevention Act" (1976) 34 U. Toronto Fac. L. Rev. 180, for a contemporaneous Canadian view of the purported benefits of the approach.
64 House of Commons, Debates, April 16, 1970, 5951. The AWPPA was introduced April 16, 1970 by the Secretary of State for External Affairs, the Hon. Mitchell Sharp, who described for the House what was meant by the "functional approach": “
The Arctic waters bill represents a constructive and functional approach to environmental preservation. It asserts only the limited jurisdiction required to achieve a specific and vital purpose. It separates a limited pollution control jurisdiction from the total bundle of jurisdictions which together constitutes sovereignty. In this it resembles in some degree the approach which Canada was among the first to adopt with respect to jurisdiction over the exploitation and conservation of fishery resources.” J.A. Beesley later distinguished between the "functional approach" and "sovereignty" in "The Law of the Sea conference: factors behind Canada's stance" (July/August 1972) International Perspectives 28 at 33: “
...whereby states assert over various kinds of "contiguous zones" only that amount and that kind of jurisdiction necessary to meet the particular problem in question. When Canada has acted unilaterally, it has refrained as much as possible from asserting total sovereignty and instead has asserted just the sovereignty necessary to fulfill the particular functions required. Sovereignty comprises a whole bundle of jurisdictions – that is to say, everything from criminal law, customs law, fishing regulations and anti-pollution control to security measures.”
65 J.A. Beesley, "Rights and Responsibilities of Arctic Coastal States: The Canadian View" 3 J. Mar. L. & Com. 1 at 7. On the other hand, the Canadian initiative drew almost immediate critical comment from interested American legal academics. See Richard Bilder, "The Canadian Arctic Waters Pollution Prevention Act: New Stresses on the Law of the Sea" (1970- 1971) 69 Mich. L. Rev. 1, and Louis Henkin, "Arctic Anti-Pollution: Does Canada Make – or Break – International Law" (1971) 65 Am. J. Int.l L. 131.
66 "Canadian Practice in International Law during 1973 as Reflected Mainly in Public Correspondence and Statements of the Department of External Affairs" (1974) 12 Can. Y.B. Int'l L. 272 at 283. Mr. L.H.J. Legault, Head, Law of the Sea Section, Legal Operations Division, Department of External Affairs also wrote a similar caveat in "The Freedom of the Seas: A License to Pollute?" (1971) 21 U.T.L.J. 211 at 219:
"Although Canada has always regarded the waters of the Arctic archipelago as Canadian waters, it should be emphasized that the Arctic waters pollution 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 territorial imperatives. Thus the issues raised by this legislation concern not sovereignty but the right of the coastal state to take action to protect itself against a grave threat to its environment".
67 D.M. McRae, "Negotiation of Article 234" in Franklyn Griffiths, ed., Politics of the Northwest Passage (McGill-Queen's University Press, 1987) 104; D.M. McRae and D.J. Goundrey, "Environmental Jurisdiction in Arctic Waters: The Extent of Article 234" (1982) 16 U. Brit. Colum. L. Rev. 197 at 210-215.
68 Beesley, supra note 63 at 33: “
What is the particular policy being pursued by Canada on the many unresolved Law of the Sea issues? The idea basic to a Canadian approach – unilateral, bilateral and multilateral – to all of the issues mentioned is "functionalism".”
69 McRae, supra note 67 at 106.
70 Ibid., at 109.
71 Ibid., at 110.
72 McRae and Goundrey, supra note 67 at 221, notes that the requirement that the laws and regulations “
have due regard to navigation” in the exclusive economic zone should not be interpreted as allowing the coastal States greater power to regulate and control marine pollution in its EEZ than in its territorial sea: “
Accordingly, it must be assumed that in enacting laws and regulations for the prevention, reduction, and control of marine pollution in ice-covered areas the coastal state would be unable to exceed the power it has to enact such laws and regulations in respect of the territorial sea. Thus, the coastal state would not be able to impose requirements on foreign ships having the effect of impairing or denying the right of innocent passage, or to discriminate against ships carrying cargo to and from any state.”
73 Fishing Zones of Canada (Zone 6) Order, (1978) C.R.C. Vol XVIII, c. 1549, 13747.
74 SOR/77-173, Canada Gazette Part II, Vol. 111, No. 5, at 652 (9 March, 1977).
75 Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Gulf of Maine Case)  ICJ Rep. 246. This decision established the legal criteria for drawing a single ocean boundary delimiting both the water column and the continental shelf sea bed. Ted McDorman, Phillip Saunder and David VanderZwaag, "The Gulf of Maine boundary: Dropping anchor or setting a course?" (April 1985) Marine Policy 90.
76 Ibid., Gulf of Maine case at 312, para 156.
77 Majority judgment, para 194, as cited in McDorman, supra note 75 at 96.
78 According to McDorman, supra note 75 at 98, that:
"[H]aving determined the line utilizing equitable criteria the chamber was left to test whether the result was equitable. In making this determination the chamber referred to the evidence presented regarding economic and human geography, indicating the importance of the area, particularly Georges Bank, to the parties. These political and economic considerations, which encompassed fishing activities, hydrocarbon exploration, scientific research and defence were not seen as 'legal' considerations and hence were not considered as equitable criteria".
79 Adam Singer, "Testing the Northwest Passage" Alberta Report (12 August, 1985) 26; Christoper Kirkey, "Smoothing Troubled Waters: the 1988 Canada-United States Arctic Co-Operation Agreement" (1994-1995) 50 Int'l J. 401 at 403; Ted McDorman, "In the Wake of the Polar Sea" (October 1986) Marine Policy 243 at 243. While two Canadian Coast Guard officers served on board during the transit, the U.S. was seen to have deliberately avoided seeking Canadian permission for the transit.
80 Canada, House of Commons, Debates, Vol. 5, at 6463 (September 10, 1985).
81 Territorial Sea Geographical Co-Ordinates (Area 7) Order (P.C. 1985-2739, 10 September 1985).
82 Acceptance of I.C.J. Compulsory Jurisdiction With Regard to Disputes Arising Out Of Jurisdictional Claims, September 10, 1985, 24 I.L.M. (1985) 1729.
83 Supra note 80.
84 National Claims to Maritime Jurisdictions, 8th Rev., Limits in the Seas No. 36, United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, May 25, 2000.
85 Donald R. Rothwell, "The Canadian-U.S. Northwest Passage Dispute: A Reassessment" (1993) 26 Cornell Int'l L. J. 331 at 337: “
By the proclamation of straight baselines around the Arctic archipelago, Canada had in one swift action made all of the waters that fell within the baselines "internal waters" of Canada over which it had complete sovereignty and jurisdiction. The measures which accompanied the proclamation of the baselines were also designed to ensure that the Canadian action was not hollow and that it would be supported by positive evidence of Canadian sovereignty and jurisdiction over the waters.” See also D.M. Johnson, "The Northwest Passage Revisited" (2002) 33 Ocean Development & Int'l L. 145 at 158.
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