The 1867 Boundary Treaty, United States and Russia Convention ceding Alaska between Russia and the United

States, signed at Washington, 30 March 1867.

The navigational regime applicable to a strait, which is not governed by treaty, depends on its use for international navigation.

Past use of the Northwest Passage

Navigation in the Northwest Passage has taken place mainly for the purpose of exploration and adventure, before 1945, but also for security and economic reasons, since 1945.

Use of the Northwest Passage before 1945

Efforts to find a sea route to Cathay across the top of North America began with John Cabot in 1497 and lasted for nearly 400 years. Between Martin Frobisher's first expedition in 1576 and that of Sir John Franklin in 1845–7, some 40 expeditions, most of them British, sailed to the Arctic. The expeditions which contributed the most to the actual discovery of the Northwest Passage were those led by Lieutenant William E. Parry (1819–20,1821–3,1824–5), Sir John Ross (1829–33) and Sir John Franklin (1845–7). The routes followed by those expeditions are shown on Figure 21. During the 12-year period after the tragic loss of Franklin's expedition, over 75 search expeditons were sent to the Canadian Arctic. They resulted in the discovery and exploration of virtually all of the bodies of water which now constitute the main routes of the Northwest Passage (see Figure 13).

As already indicated in Chapter 8, Canada began sending expeditions to the Canadian Arctic shortly after the transfer of the Arctic Islands by Great Britian in 1880, in order to consolidate its title to the islands and exercise a certain degree of control over the waters of the Archipelago. Today, all of the routes of the Passage have been fully explored.

The 1825 Treaty between Great Britain and Russia, and the 1867 Treaty between the United States and Russia, have sometimes been invoked as a legal basis for the sector theory. Numerous writers and commentators have disagreed with such an interpretation of those treaties, and the matter is still the subject of controversy. This chapter examines the view of the main proponents of the boundary treaty basis and attempts a thorough analysis of the relevant provisions of those treaties.

Main proponents of boundary treaties

The main proponent of the sector theory is the Soviet writer, W. L. Lakhtine. He is also the one who tried to find a treaty basis for a full systematization of the theory in the Arctic. Before him, an American, David Hunter Miller, had given partial support to the theory and to the use of the boundary treaties for this purpose.

David Hunter Miller

Miller wrote in 1925, shortly after the Canadian Minister of the Interior, Charles Stewart, had used the sector theory to claim sovereignty right up to the Pole. Miller quoted from Article III of the 1825 Treaty which provides for the 141st degree of longitude to form the limit between the respective possessions of Russia and Great Britain in the following terms:

Introduction

The future of Canadian marine transportation development in Arctic waters remains uncertain. Although proponents of the Arctic Pilot Project (APP) – a proposal to ship LNG through the Northwest Passage – have withdrawn their application from the National Energy Board, a smallerscale project involving production and transportation of oil from the Bent Horn field on Cameron Island by the marine mode is being promoted by Panarctic Oils Ltd. Beaufort Sea project proponents (Dome, Gulf and Esso) are still considering the feasibility of both tanker and overland pipelines and have not made final decisions on the preferred mode of hydrocarbon transport. The Beaufort Sea Environmental Assessment Panel, in policy recommendations to the federal government in July 1984, has cast further uncertainty over marine transportation of Arctic hydrocarbons by advising the government of Canada to withhold approval of the tanker option until the completion of two evaluation stages – general government research and preparation, and experimental testing of two Arctic Class 10 oil-carrying tankers.

If Canada chooses the marine option, will government and industry be prepared to meet the challenge? This paper examines the question of present Canadian shipping capacities and future shipping requirements from six perspectives: administration, icebreaking vessels, hydrographic knowledge, operational support services (including navigation and communications, vessel traffic management, search and rescue), crew training, and shipbuilding.

The doctrine of historic waters not having been spelled out in any convention, its precise legal context remains difficult to circumscribe in customary law and, consequently, State practice becomes even more significant than otherwise would be the case. This is particularly so with respect to States situated in the Arctic, since the claim of historic waters being appraised is to a maritime area of that region. This chapter will examine the State practice of Norway, Denmark, the United States, the Soviet Union and Canada.

State practice of Norway

In 1951, Norway relied on history, in addition to the straight baseline system, as a basis for its claim that the waters of the fjords and sunds enclosed by the baselines were internal waters. It was invoking history as a subsidiary ground only, not in support of a claim of historic waters but rather one of consolidation of title over some of the areas of the sea enclosed by straight baselines. This consolidation of title was shown to exist in particular with respect to the Lopphavet Basin where the local inhabitants had enjoyed historic fishing and whale hunting rights. Norway does not appear to rely now, any more than it did in the past, on historic waters properly so-called and there is no provision for such waters in its legislation.

State practice of Denmark

There is no evidence that Denmark has ever made any claim of historic waters. It has used the straight baseline system along the coasts of Greenland and the Faroes, but the waters enclosed are not claimed as historic waters. Denmark has no provision for historic waters in its legislation.

The paternity of the sector theory is generally attributed to Senator Pascal Poirier who invoked it in 1907 as a basis for claiming sovereignty over all of the islands north of Canada. This attribution is accurate only in so far as he was the first to actually systematize the use of meridians of longitude to claim territorial sovereignty in the Arctic. The use of such meridians had been advanced long before to mark the delimitation of territorial claims.

Papal Bull (1493) and early treaties (1494 and 1529)

On May 4,1493, Pope Alexander VI issued his Bull Inter Caetera whereby he purported to grant to Spain ‘all islands and mainlands … towards the west and south, by drawing and establishing a line from the Arctic pole … to the Antarctic pole …, the said line to be distant one hundred leagues towards the west and south from any of the islands commonly known as the Azores and Cape Verde’. The Bull safeguarded previous grants to Portugal with a proviso that no similar right already conferred to a Christian prince was to be withdrawn.

On June 7 the following year, Spain and Portugal concluded the Treaty of Tordesillas in which they used a meridian of longitude from Pole to Pole to establish a boundary which alloted Spain ‘all lands, both islands and mainlands’ on the west side of the line and those on the east side to Portugal. The dividing line was fixed at a distance of 370 leagues west of the Cape Verde Islands, or in other words 270 leagues farther west than established by the Pope in the Bull.

Regardless of the precise legal status of the waters of the Canadian Arctic Archipelago generally, a special study of the legal regime applicable specifically to the Northwest Passage is necessary. This is particularly so having regard to the eventual use of the Passage for the transportation of hydrocarbon resources from the Beaufort Sea and the Archipelago itself. This part will describe the Northwest Passage, review its past, present and potential use and, finally, analyse the legal status of the Passage.

Since the approval of straight baselines by the International Court of Justice in the Fisheries Case of 1951, their use has become increasingly common in the practice of States for the delimitation of their territorial sea. This increased practice applies to all types of archipelagos, whether or not they fit into the two categories provided for in the 1982 Convention. Consequently, this chapter will review State practice in general and that of Arctic States in particular.

State practice in general

In 1971, when Commander P. B. Beazley of the British Admiralty Hydrographic Service made his study on the use of baselines, he concluded that straight baselines were being used by 24 States. The baselines varied in maximum length from 23 to 222 nautical miles. By 1985, 60 States had used the straight baseline system and 12 more had adopted enabling legislation. This means that a substantial majority of coastal and Archipelagic States have either actually established straight baselines in the measurement of their territorial sea or are preparing themselves to do so. Table 1 lists the 66 countries and the longest straight baseline established by each. For four of the States listed (Ecuador, The Soviet Union, Denmark and Norway), several maximum lengths are shown.

State practice in the Arctic

Norway

It was Norway in 1812 which adopted the first enabling legislation to measure its territorial sea from straight baselines between the outermost islands from its mainland.

Statement in the House of Commons by the Secretary of State for External Affairs, the Right Honourable Joe Clark, on Canadian Sovereignty (10 September 1985).

Mr Speaker,

Sovereignty can arouse deep emotion in this country. That is to be expected, for sovereignty speaks to the very identity and character of a people. We Canadians want to be ourselves. We want to control our own affairs and take charge of our own destiny. At the same time, we want to look beyond ourselves and to play a constructive part in a world community that grows more interdependent every year. We have something to offer and something to gain in so doing.

The sovereignty question has concerned this government since we were first sworn in. We have built national unity, we have strengthened the national economy, because unity and strength are hallmarks of sovereignty, as they are hallmarks of this government's policy and achievements.

In unity and strength, we have taken action to increase Canadian ownership of the Canadian petroleum industry. We have declared a Canadian ownership policy in respect of foreign investment in the publishing industry. We have made our own Canadian decisions on controversial issues of foreign policy – such as Nicaragua and South Africa. We have passed the Foreign Extraterritorial Measures Act to block unacceptable claims of jurisdiction by foreign governments or courts seeking to extend their writ to Canada. We have arrested foreign trawlers poaching in our fishing zones.

The challenge of Arctic marine transportation

Introduction

The Beaufort Sea is expected to be one of the world's largest reservoirs of petroleum and gas, and large deposits of hard minerals may be found on surrounding islands. However, from the perspective of Arctic resource exploration, production, and transportation, the region poses a number of unique technical problems. In part because of the array of obstacles, and in part because of the novelty and scale of the task, many of the world's most competent technologists have been drawn to the challenge of designing and testing of Arctic drilling structures, artificial islands, terminal equipment, and transport systems. For example, artificial islands (constructed in up to 18 m of water) have become the most popular drilling platforms for use in the shallow waters of the Mackenzie River Delta. As exploration proceeds into deeper waters other types of rigs and platforms are planned, including the “Conical Rig” currently under construction for Gulf Canada and designed to operate in 55 m water depths (see Figure 4.1), and a type of movable or relocatable drilling platform, shown in Figure 4.2.

This paper reviews existing Arctic marine transportation technologies and identifies the most critical operational and interface problems which must be resolved before routine Arctic shipping is possible. For example, traffic routing, close-in manoeuvring, cargo transfer and crew replacement place special demands on Arctic operators as compared to transport operations conducted in more moderate climates.

According to the Sailing Directions of Arctic Canada, ‘the Northwest Passage spans the North American Arctic from Davis Strait and Baffin Bay in the east to Bering Strait in the west’. Although this represents the traditional definition of the Northwest Passage, the present discussion will limit the meaning of the Passage to the constricted waters within the Canadian Arctic Archipelago between Baffin Bay in the east and the Beaufort Sea in the west. Under the present definition, the latter bodies of water form part of the approaches to the Northwest Passage.

Approaches to the Northwest Passage

Eastern approaches

The Labrador Sea, Davis Strait and Baffin Bay constitute the eastern approaches to the Northwest Passage. The ice conditions in Davis Strait and Baffin Bay are mainly controlled by a warm current flowing north along the west coast of Greenland and a cold current flowing south along the coast of Baffin Island, as well as by a major polynya or open water area at the northern end of Baffin Bay.

A special feature affecting the navigation conditions of the eastern approaches is the presence of icebergs, calved mostly from the northwestern part of Greenland but partly also from smaller glaciers on Ellesmere and Devon Islands. Icebergs drift southward mainly with the cold Canadian current and, consequently, are found in greater numbers along the Canadian coast. Some of the glaciers rise to 300 feet above sea level and constitute a considerable hazard to navigation.