The Canadian Arctic Waters and UNCLOS
On the 7th of November 2003, the Government of Canada ratified the United Nations Convention on the Law of the Sea. The delay in Canada's ratification was reported to be caused by the course of negotiations with the European Union over fisheries regulations.103 At ratification, Canada also filed a Statement notifying the United Nations that it would not accept the compulsory dispute resolution procedures for questions involving sea boundary delimitations or disputes involving historic bays, military activities, law enforcement activities in regard to the exercise of sovereign rights, or disputes involving the Security Council.104
Article 2 of the Convention speaks directly to the legal status of a coastal state's territorial sea, super-adjacent airspace, and the "sovereignty" to be exercised in those areas:
Article 2 – Legal status of the territorial sea, of the airspace over the territorial sea and of its bed and subsoil
- The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.
- This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
- The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.
Article 5 describes "normal baselines" as the low-water line along the coast, but Article 7 provides an extensive definition of "straight baselines" and prescribes their appropriate use. Three of the six sub-articles would be considered as directly applicable:
Article 7 – Straight baselines
1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.....
2. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.
4. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which is clearly evidenced by long usage.
The islands and waters of the Arctic Archipelago do not easily fall within legal description found in Article 7(1) of the Convention, and therefore may not support the straight baselines established by the Territorial Sea Geographical Coordinates (Area 7) Order.105 However, in the alternative, reliance has been placed upon the language of the treaty Preamble that “
matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” It has been argued by Canadian commentators that in relation to the Arctic Archipelago, reference can be made to the test proposed by the I.C.J. in the Fisheries Case where the Court approved the straight baselines along the northern Norwegian coastline.106 In that case the "skjaergaard" was very broken along its whole length, constantly opening out into indentations which penetrated great distances, and made up of mountainous small and large islands which have their large and small bays and shallow banks which constitute fishing grounds.107 In the majority decision, the Court agreed that the application of a "geometrical construction" – straight baselines - was justified “
[w]here a coast is deeply indented and cut into, as is that of Eastern Finnmark, or where it is bordered by an archipelago such as the "skjaergaard" along the western sector of the coast here in question, the baseline becomes independent of the low-water mark....”108
There is an additional provision that relates to the Canadian application of straight baselines in the Arctic. Article 8(1) confers the status of "internal waters" to the waters on the landward side of the baselines. Article 8(2), however, provides for an exception to that status:
"8(2) Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters".
The effect of this sub-article upon Canada's Arctic claim is that if prior to 1985 – the date of issue of the Privy Council Order in Council Territorial Sea Geographical Co-Ordinates (Area 7) Order – the waters of the Arctic Archipelago were "considered" to be Canadian internal waters, no right of innocent passage through them would exist. The question of the application of this provision of the Convention is significant because the exercise of the right of innocent passage through all or a portion of the waters of the Arctic Archipelago would be manifestly inconsistent with the Canadian government's claim that the same area was made up of "internal waters".
The effect of Canada's ratification of UNCLOS in 2003 was to bring Article 8(2) to bear on the issue. A fair reading of the provision appears to support the position that Canada's claim of historic internal waters rests upon an exception to UNCLOS.109 The question of whether Canada's claim of "historic internal waters" is "exceptional" under international law is not merely relevant to the unlikely event that Canada allows its claim to be drawn into litigation. For example, the conduct of naval operations would also be influenced if the Canadian claim was not accepted by other States or believed to be unfounded.
The Government of Canada's ratification also secured the national responsibility to respect the navigation rights enumerated in the Convention, including the "right of innocent passage" and the "right of transit passage". Any naval enforcement of the Canadian Arctic claim must therefore be conducted in a manner which respects important international legal rights.
103 Drew Fagan, "After two decades, Canada will ink Law of the Sea treaty" Globe and Mail (4 November 2003).
104 Canadian Statement filed at Ratification, 7 November 2003, available online at http://www.un.org/depts/los/convention_agreements/convention_declarations.htm.
105 J.B. McKinnon, "Arctic Baselines: A Litore Usque ad Litus" (1987) 66 Can. Bar Rev. 790 at 803: “
The northern mainland coast of Canada is deeply indented, but this fact would justify using straight baselines only along the coast . . . [I]t seems difficult to describe the islands of the Arctic archipelago as a "fringe of islands" in the "immediate vicinity" of the coast. The islands extend almost 1,000 miles north from the mainland. Moreover, the northern group of islands is separated by a wide body of water from the southern group. Thus, even if the southern group could be treated as a fringe of islands in the immediate vicinity of the mainland, it would be more difficult to include the northern group despite the existence of a few small islands in Barrow Strait linking the two groups of islands.” In addition, John Byrne, "Canada and the Legal Status of Ocean Space in the Canadian Arctic Archipelago", (1970) 28 U. Toronto Fac. L. R., 1 at 9-10 does not believe the Arctic archipelago constitutes a "fringe". On the other hand Donat Pharand, "The Role of International Law for Peace and Security" The Arctic: Choices for Security and Peace, 1989, 108 made reference to the physical survey conducted by the American Natural Geographic Society which concluded that the Arctic islands are an archipelago of the Canadian continental shelf.
106 Fisheries Case (United Kingdom v. Norway),  I.C.J Rep. 115. In 1935 the Norwegian government passed a royal decree using straight baselines to delimit fisheries zones and strictly enforced the regulations against British trawlers, arresting and condemning a considerable number. The U.K. government then instituted the case before the Court. Donat Pharand, "Canada's Arctic Waters in International Law", (Cambridge University Press, 1988) at 132, wrote that “
[c]onsequently, if the rules for Archipelagoes found in the Convention are too narrow to fit precisely a particular Archipelago, resort may be had to customary law. It might prove necessary to do this in appraising the applicability of the straight baseline system to the Canadian Arctic Archipelago.”
107 Fisheries Case, supra note 106 at 127: “
The coast of the mainland does not constitute, as it does in practically all other countries, a clear dividing line between land and sea.”
108 Ibid. at 128.
109 The question of whether Canada's straight baseline claims constituted an exceptional claim was discussed in academic commentary that was published before Canada's ratification of UNCLOS in 2003. For example, Donat Pharand, "Canada's Sovereignty Over the Northwest Passage", (1989) 10 Mich. J. Int'l L. 653 at 657, conceded that there “
appears to be a general consensus that the onus of establishing the existence of an historic title to maritime areas rests with the coastal State making such a claim” and described the claim asserted by the coastal State as an "exceptional claim." Further, Suzanne Lalonde, "Increased Traffic through Canadian Arctic Waters: Canada's State of Readiness" (2004) 38 R.J.T. 49 at 84, conceded that foreign vessels enjoy the right of innocent passage through the waters that Canada has enclosed with straight baselines.
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