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.

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:

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.