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.

Canada's position as to the legal status of the Northwest Passage was expressed in 1975 by the Secretary of State for External Affairs Allan MacEachen. Appearing before the Standing Committee for External Affairs and National Defence in May of that year, Mr MacEachen stated:

This official position of Canada on the Northwest Passage is clear enough as far as it goes, but it does leave at least three questions unanswered. These questions will now be examined and are the following: 1) When may a strait be considered as being used for international navigation; 2) What is the legal status of the Northwest Passage itself; and 3) What would be the legal status of the Northwest Passage if it were used for international navigation?

In spite of the conclusion in Chapter 11 that Canada had validly established straight baselines around the Arctic Archipelago, the questions just formulated must still be addressed.

Definition and classification of international straits

At the Third Law of the Sea Conference, the question of international straits was dealt with as a distinct subject, separate from that of the territorial sea. This represents a considerable improvement over the approach taken at the First Law of the Sea Conference and the consequent provisions found in the Territorial Sea Convention of 1958. After much difficulty, the Conference did reach a compromise as to the nature and scope of the right of passage which would be applicable to ‘straits used for international navigation’.

Institutional development in the framework of the Antarctic Treaty system

The institutional approach followed by the Antarctic Treaty has been of a rather elemental nature. In spite of the fact that the academic and diplomatic debate that preceded this instrument had a strong institutional emphasis, the negotiators of the Treaty opted for the machinery of Consultative Meetings, i.e. for the Consultative Parties to meet periodically on a rotational basis, without the support of permanent organs. This decision was certainly closely related to the question of the disputed claims of sovereignty since certain countries feared that any form of institutionalization might, as a concomitant, signify a process of internationalization that would affect their claims or rights.

Within this approach, the central role in the management of the Antarctic Treaty system devolves on the Consultative Parties, whether founder members or whether admitted subsequently. Even though the latter, in accordance with the Treaty, participate only during such time as they demontrate an interest in Antarctica by conducting substantial scientific research there, the exercise of rights is identical for all the Consultative Parties. Furthermore, there is little likelihood in practice that a State that has acceded as a Consultative Party would subsequently be deprived of that status.

Stages of development in the Antarctic

Man's presence in the Antarctic continent falls into a number of periods or stages which are well defined in terms both of the nature of the activities undertaken and of the corresponding legal and political requirements for the organization of human work in this territory.

The first of these stages was that of discovery and geographical exploration, a period which has with considerable justification been termed the ‘heroic’ age of the development of the Antarctic; then came the stage of scientific research and, more recently, the stage of the utilization and exploration of the natural resources of the continent. The first of these stages is now largely completed, at least as far as exploration of the traditional type is concerned. The second, however, is at present in process of development, taking a number of different forms. Indeed, it can be seen that the original emphasis on pure research has been gradually supplanted by a different emphasis, even more closely linked to resources-related applications.

In the course of this development, the third of the stages mentioned has begun to emerge more clearly and can today be said to be the main topic of discussions on the Antarctic both between countries directly concerned in activities in that continent and within the scope of other forums of the international community.

Basic interests and participation in the exercise of powers

Once there is no consensus as to who has jurisdiction over the mineral resources of Antarctica, the problem arises that it is not enough to identify the powers to be exercised in the context of the regime, it is also necessary to determine by whom they are to be exercised, and how. It is on this point that all the interests of basic importance involved in the issue must be satisfied, and these therefore are the key questions which the internal accommodation has to settle.

Writers are in agreement upon the main interest groups that must be taken into account in order to effect this accommodation, together with the inescapable realities linked to each interest and the corresponding legal positions, with particular reference to the problem of jurisdiction. A study by Keith Brennan calls attention to four basic interest groups in this regard. The first of these relates to those claiming sovereignty. In this connection Brennan observes: ‘That sovereignty is real. It remains real notwithstanding the fact that other states do not acknowledge that it is validly exercised; and it would be quite unrealistic to entertain the belief that sovereignty will be abandoned either in form or in substance’.

The Antarctic Treaty as a basic legal framework

The Antarctic Treaty deals primarily with those issues which at the time of its negotiation were a matter of concern for the countries active in the area. As was explained in the previous chapter, these concerns referred in particular to the freedom of scientific research, exchange of information, prevention of a military build-up and organization of elementary forms of co-operation among the countries involved. The aims of the Treaty, therefore, have been to ensure that the activities in Antarctica can be conducted without interference arising from political interests of the participating countries.

In this context, the issue of natural resources did not appear at the time to be of an important priority. The only specific reference to natural resources in the Antarctic Treaty is contained in Article IX, 1 (f), which provides that consultative Parties may formulate, consider and recommend measures in furtherance of the principles and objectives of the Treaty, including measures regarding ‘preservation and conservation of living resources in Antarctica’. On this basis, there was gradually to develop an extensive norm-creating function concerning such resources and specific aspects of the preservation of the environment.

In the case of mineral resources, however, the 1959 Treaty is silent.

First proposals for internationalization

The academic and diplomatic debate which has been going on throughout the present century about the legal status of Antarctica and the possible forms of international co-operation therein, has been generally dominated by proposals for various forms of internationalization of the continent or for the establishment of some sort of linkage with the international community in a broad sense. The ideas expressed by Fauchille in 1925 concerning the participation of all States in the exploitation of the wealth of Antarctica have been a recurrent theme in this debate.

The wide range of proposals put forward before the Antarctic Treaty was concluded may be classified into three main categories. The first refers to the establishment of international machinery for the organization of co-operation in Antarctica which would, in general, be restricted to the countries directly concerned. This type of proposal implies a limited degree of internationalization, but not to such a generalized extent as in other schemes. Proposals for the establishment of a Permanent International Commission for Antarctica and those aimed at ensuring the internationalization or demilitarization of the continent fall within this category.

A second category of proposals envisaged forms of internationalization based on functional criteria, implying co-operation in specific spheres of activity. Jenk's proposal for the establishment of common international services for Antarctica comes within this category.

Antarctic sovereignty and co-operation: the need for reconsideration

The discussion on sovereignty in the Antarctic continent has traditionally been dominated by the question of territorial claims and the procedures for making such claims, and by the way in which the requirements of effective occupation are fulfilled. This is adequate for the needs of a period in which territorial rivalries and the other positions that have been considered competed for control of the system of organization that was applied to the Antarctic continent.

However, the development that has taken place over the last twenty-five years has highlighted two cardinal elements. The first is that, in spite of the many existing difficulties, sovereignty has become an established fact in the Antarctic. But this is so only in a relative sense, since simultaneously there has also been the development of the second basic element, consisting in a powerful framework of international co-operation in Antarctica. The fundamental link between these two elements has been Article IV of the Antarctic Treaty, which by freezing formal claims to sovereignty and not prejudging on the issue has made possible the strengthening of the process of co-operation in the region. As was pointed out earlier, sovereignty has become inseparable from co-operation in the Antarctic since it would be difficult to maintain sovereignty unless it were closely linked with the factor of co-operation.