The straight baseline system of delimiting territorial waters was developed by Norway, beginning with its first Royal Decree of 1812. The system was approved by the International Court in 1951, and incorporated in the Convention on the Territorial Sea of 1958 and in the Law of the Sea Convention of 1982. Under this system, where a coast is deeply indented or is bordered by an Archipelago, it is permissible to draw straight baselines, across the indentations and between the outermost points of the islands, from which the territorial sea is measured. This geographic situation is commonly referred to as that of a coastal Archipelago.

At the Third Law of the Sea Conference, the applicability of the straight baseline system was extended to mid-ocean or oceanic Archipelagos. These are situated at such a distance from any mainland as to be considered an independent whole and constitute the national territory of a State called an Archipelagic State. Off-lying and oceanic Archipelagos forming an integral part of the territory of a continental State are not specifically provided for in the 1982 Convention.

In 1974, a group of nine States introduced a Working Paper proposing the right for a coastal State, with an off-lying Archipelago forming an integral part of its territory, to apply the straight baseline system to such an Archipelago, subject to the right of innocent passage. Also in 1974, Ecuador proposed that straight baselines be applicable ‘to Archipelagos that form part of a State, without any change in the natural regime of the waters of such Archipelagos or of their territorial sea’.

In 1983 Professor Donat Pharand spent a six-month study leave with Dalhousie Ocean Studies Programme in Halifax, Nova Scotia. For many of us at D.O.S.P., and also at Dalhousie Law School, this was a period of reunion and reacquaintance with an old friend and fellow alumnus. For students it was an introduction to one of Canada's most dynamic law teachers. For me it is a special pleasure to be asked to supply the foreword to the product of these years of labour.

There must be few readers indeed who are unaware of Professor Pharand's work and reputation in the specialized area of Arctic Ocean law and policy. His earlier book The Law of the Sea of the Arctic (University of Ottawa Press, 1973) is, of course, still one of the standard reference works in the area, but the general law of the sea has undergone major surgery in recent years, and the policy issues associated with the Arctic Ocean have assumed a more critical significance as a result of more pressing resource and industrial demands on this remote and unique environment.

The Concept

Function

The Canadian Northern Waters Project of Dalhousie Ocean Studies Programme is based on a fundamental assumption: that all major industrial and governmental activities involving the use or transit of Canada's Arctic waters should be brought under a single, comprehensive system of regulation and management. The envisaged system would not only constitute an entire transportation system, but would also be designed to affect the regulation and management of related matters, such as Arctic science, resource development, environmental protection, community concerns, industrial strategy, and international affairs. Since the primary purpose of such a system would be to maintain safe, efficient, and harmless passage of cargoes or products through, over or under these waters, it is referred to as a “transit-management system”. The object of this preliminary collection of essays has been to review some of the problems associated with designing a Northern waters transit-management system and to consider some of the basic or strategic options for decision-makers in the 1980s.

The concept of a Northern waters transit-management system arises, of course, from the growing temptation to open up the Northwest Passage for the surface and-or subsurface transportation of a variety of cargoes. For over a decade, shipments of ores have been transported by surface craft out of the Eastern Arctic to overseas markets, and it seems certain that the extraction and transportation of hard minerals from the Arctic region will continue on a larger scale in the years ahead.

To describe the environment of the Northwest Passage fully in a single chapter is perhaps an impossible task. The Passage, broadly defined, cuts across five time zones and includes at least seven distinct ocean regions – the Beaufort Sea, Amundsen Gulf, Prince of Wales Strait, Viscount Melville Sound, Barrow Strait, Lancaster Sound, Baffin Bay and Davis Strait. Volumes would be required to describe in any detail the environmental characteristics of these diverse regions.

By necessity, then, this chapter is much like an impressionistic painting. Only the broadest strokes may be applied to the canvas. Section I provides an overall framework for viewing the marine environment of the Northwest Passage by looking at the Arctic Ocean as an international concern, by examining Canada's major environmental protection initiatives, and by raising the need for a Northern conservation viewpoint. Section II explores the physical environment of the Passage through three lenses, bathymetry and currents, ice distribution and characteristics, and the location of recurring polynyas (open water areas). Section III highlights the biological environment from five perspectives: Arctic marine productivity, marine and anadromous fish, seabirds, marine mammals, and biologically significant areas. Section IV reviews the human setting by describing the circumpolar Inuit and the importance of renewable resource harvesting from marine waters. Section V concludes by summarizing the environmental issues raised by Arctic resource development and marine cargo transportation.

Whenever appropriate, a summary has been made at the end of chapters, so that a general conclusion might not be absolutely necessary. However, for greater clarity and convenience, a few concluding remarks on the four parts of the book seem advisable. Even at the risk of redundancy, a conclusion is formulated on the main points developed in each of the four parts. The key words of the various chapter and section headings are retained so that the corresponding developments in the text may be easily located.

Part 1. The sector theory

The sector theory has no legal validity as a source of title or State jurisdiction in the Arctic. This applies to land and, a fortiori, to maritime areas. The conclusion follows from a study of three possible legal bases for the theory: the boundary treaties of 1825 and 1867, the doctrine of contiguity and custom.

Boundary treaties of 1825 and 1867 The meridians described in the 1825 Treaty between Great Britain and Russia, as well as the 1867 Treaty between the United States and Russia, were used only as a convenient geographical device to delimit territorial possessions. Although the meridians were described as extending as far as the Frozen Ocean, the Parties made it abundantly clear in both instances that the subject matter of the agreements was land only, and not land and sea.

Contiguity Subject to minor exceptions relating to certain islands in a territorial sea or forming an integral part of an Archipelago, the doctrine of contiguity does not constitute an adequate legal basis for the acquisition of sovereignty over land or maritime areas. Consequently, contiguity cannot serve as a valid basis for the sector theory.

The sector theory has been invoked by a number of politicians and officials in Canada as a legal basis for claiming jurisdiction not only over the islands of the Canadian Arctic Archipelago, but also over the waters within and north of the islands right up to the Pole. However, the government itself has never taken a very clear and consistent position on this theory. It would seem that present government policy is to hold the theory in reserve as possible support for its claim that the waters of the Archipelago are internal.

The purpose of this first Part is to assess the validity of the sector theory in international law as a basis for claiming jurisdiction to Arctic waters. This will be done in four chapters, presenting: 1) a brief inquiry into the origins of the theory; 2) a study of the relevant boundary treaties; 3) an analysis of the related concept of contiguity; and 4) a review of State practice and its possible acceptance as customary law.

It is presently an opportune time to re-examine the legal regime applicable to the waters of the Canadian Arctic Archipelago. Although it is probable that Arctic hydrocarbon production and transportation will not occur before the late 1990s, the current lull in exploration activity makes appropriate planning possible.

The Arctic Pilot Project - a proposal to ship liquefied natural gas by tanker from Melville Island through the Northwest Passage to a southern Canadian port - has been rejected because of insufficient information as to markets. American developers in the Beaufort Sea have not yet found sufficient commercial reserves to warrant tanker transportation through the Northwest Passage to the American eastboard. Canadian developers – Dome, Esso and Gulf – are still in the process of assessing hydrocarbon reserves in the Beaufort Sea and, despite satisfactory results of certain well tests in 1984, commercial production has yet to begin.

The possibility of enclosing the Canadian Arctic Archipelago with straight baselines has been discussed by a number of writers since the Fisheries Case of 1951, particularly after the Manhattan crossing of the Northwest Passage in 1969. Their writings have already been reviewed by the present writer and suffice it to recall here that, subject to a few nuances, they all arrived at the conclusion that those waters could be enclosed in a way similar to those of the Norwegian Archipelago. In spite of the virtual unanimity in the conclusion, the reasons varied somewhat from one writer to another, particularly as to the precise legal nature of the Canadian Archipelago, the use which could be made of history and the consequence which straight baselines would have on any right of passage that might now exist. In light of the applicable law and the practice of States already discussed, this chapter will examine: (1) the geography of the Canadian Arctic Archipelago; (2) straight baselines for the Archipelago; and (3) the consolidation of title to certain waters enclosed by straight baselines.

The geography of the Canadian Arctic Archipelago

In the Fisheries Case of 1951, the International Court concluded that ‘the method of straight baselines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast’. The question arises here whether the geography of the northern coast of Canada is of a similarly peculiar nature so as to warrant the method of straight baselines for the delimitation of its territorial waters.

The object of this chapter is twofold: first, to examine State activities of Great Britain and Canada in relation to the waters of the Canadian Arctic Archipelago and second, to appraise Canada's claim of historic waters in light of the legal requirements for the establishment of such a claim.

State activities of Great Britain before the transfer in 1880

The instructions to the official expeditions of the British explorers was to discover a passage between the Atlantic and Pacific Oceans. An examination of the journals and narratives of those expeditions also reveals that their takings of possession in what is now the Canadian Arctic Archipelago were confined to land. This conclusion simply confirms an earlier finding by Dr Gordon Smith in his historical study of those explorations that ‘they were concerned with land, not water; and it is conspicuous that whatever claims were made these claims were for the most part specifically to land’. Nevertheless, it becomes pertinent to review briefly the activities of Great Britain in the waters of the Archipelago, as Canada's predecessor in title, with a view to determining the extent of its presence in those waters before the transfer of the Arctic islands to Canada in 1880. If the review were to conclude that Great Britain's presence did not extend to much of the waters and that they were often frequented by foreign ships, it would become somewhat more difficult for Canada to meet the requirements of exclusive control for the necessary long period of time and the general acquiescence of foreign States.

This chapter considers four aspects of the doctrine of historic waters: (1) the origin and recognition of historic waters; (2) the legal status of historic waters; (3) the present role of historic waters; and (4) historic waters and related doctrines.

Origin and recognition of historic waters

The doctrine of historic waters developed from that of historic bays which had emerged during the 19th century for the protection of certain large bays closely linked to the surrounding land area and traditionally considered by claiming States as part of their national territory. Those bays were often expressed to be of vital importance from the economic and national security standpoints. As rules relating to the delimitation of maritime areas developed, the idea of claiming bays on the basis of an historic title was extended to other areas of the sea adjacent to the coast.

The nature of historic waters in international law was never spelled out in any convention. In 1958, it was the view of the International Law Commission's Special Rapporteur on the Law of the Sea, Mr Francois, that the Commission did not have sufficient material at its disposal to formulate principles on the matter. Safeguard provisions, however, were inserted in the Convention on the Territorial Sea, thus recognizing the legitimacy of both historic bays and historic waters. Provisions for both cases, however, were formulated as exceptions to the general rules for drawing territorial waters. It was specified that the rules relating to the maximum 24-mile closing line for bays ‘… do no apply to so-called “historic bays”’.

In spite of the conclusion that the sector theory cannot find a valid legal basis in the concept of contiguity, the practice of States might be such that the theory has resulted in a principle of customary law. This would appear to be the view held by a small number of authoritative commentators. For instance, Professor J. S. Reeves wrote, in a brief comment on Antarctic sectors in 1939, that ‘[o]ne may assert that the sector principle as applied at least to Antarctica is now part of the accepted international legal order’. Numerous references to State practice are also found in the writings of proponents of the sector theory, such as David Hunter Miller and W. L. Lakhtine.

The above statement by Professor Reeves did not go unchallenged and, in 1948, Professor Waldock expressed his disagreement with the notion that State practice had resulted in a new rule of international law. Having referred to Professor Reeves' statement, he wrote:

Some 35 years having passed since Professor Waldock's examination of State practice, it is now advisable to re-examine the question.

“Time waits for no man.” In the field of academic research the saying should be modified to “Time waits for no book”, for human events often march quickly beyond the facts captured by any manuscript.

In the fast-changing world of Arctic affairs with the rapid evolutions in technologies, legal regimes and political arrangements, the saying is particularly true and certainly applies to the present volume. When the manuscript was in preparation during the years 1982–1984, two of Canada's Arctic policies were particularly unclear – the extent of national jurisdiction over Arctic waters and a national commitment to expand icebreaking capabilities. However, on September 10, 1985, External Affairs Minister, Joe Clark, reacting to public sentiment aroused by the transit of the U.S. Coast Guard icebreaker Polar Sea through the Northwest Passage in August 1985, clarified the political waters by announcing in the House of Commons the drawing of straight baselines around Canada's Arctic Archipelago, in order to formalize Canadian sovereignty over the enclosed waters, and the intention to construct a Polar Class 8 icebreaker.

Because the statement demonstrated a new national commitment to develop and control Northern waters, the statement is reproduced in its entirety as an Appendix. The statement challenges Canadians to address questions about transit management including the designation and protection of environmentally significant areas, formulation of a sound Northern economic strategy, development of appropriate marine technologies, implementation of mandatory vessel management services traffic, and creation of an explicit and fair decision-making process for reviewing industrial proposals having a shipping component.

The problem outlined

Northern economic development, whether based on land or sea resources, has been problematic because serious developmental conflicts have not been resolved to the satisfaction of the North's principal interest groups. While corporate pressures promote non-renewable resource development, utilizing high technology and skilled or semi-skilled labour from the South, other groups advocate an entirely different development scenario, preferring development based on the exploitation of renewable resources by the indigenous population utilizing low technology. Government, having the responsibility for developing the North for the benefit of all Canadians, often finds itself in the role of an unwilling arbitrator between industry (large corporations), native peoples, and environmental protection groups. Northern development will, therefore, require making various choices both in terms of alternatives for development, and in resolving and reconciling conflicts between numerous interest groups.

The problems of Northern development are particularly acute in the ocean areas. Canada's Northern marine areas are especially rich in oil and gas resources. Exploration activities are taking place, or are proposed, for the Mackenzie Delta–Beaufort Sea, the High Arctic Islands, Lancaster Sound, and Baffin Bay–Davis Strait; that is, virtually all across the North. The Arctic as a marine region has the largest potential for recoverable oil and gas resources in Canada, but their commercial exploitation requires favourable demand and price conditions, and accelerated development of support technologies such as drill ships and artificial islands. Mineral development is also taking place in the Arctic Archipelago; in the early 1970s a lead-zinc mine began production in Strathcona Sound and, in 1982 Cominco's Polaris Mine began exploitation of the lead-zinc deposits on Little Cornwallis Island.