Les problèmes de droit international de l’Arctique

The territorial sovereignty over Alaska, the Arctic islands of the Soviet Union, Svalbard, Greenland and the Canadian Arctic Archipelago poses no problem, but the continental shelf off those territories and islands has yet to be delimited between the five Arctic States: Alaska, the Soviet Union, Norway, Denmark and Canada. Beyond the continental shelf, the mineral resources of the deep sea-bed should normally form part of the common heritage of mankind, but their presence has not yet been determined. The Arctic Ocean, in spite of the permanent presence of ice, is subject to the freedoms of the seas. The straits of the Northeast Passage are internal waters of the Soviet Union, at least since the establishment of straight baselines in 1985 (presumably, under the Territorial Sea Convention to which the USSR is a Party) and, possibly before, by way of historic title. Under the Convention, a right of innocent passage would exist but not if they are historic waters. The waters of the Northwest Passage are internal waters of Canada since their enclosure by straight baselines in 1985, under customary international law, and no right of passage exists. The sovereignty of Arctic States extends to the air space above their territory, internal waters and territorial sea. There is no right of over flight above those areas, outside of the I.C.A.O. Conventions. The Arctic Ocean being a semi-enclosed sea, bordering States should cooperate under the new Law of the Sea Convention in the exploitation of the living resources, the protection of the marine environment and the conduct of scientific research. This cooperation could best be attained by the creation of an Arctic Basin Council composed of all Arctic States and, possibly, the Nordic countries

La contribution du Canada au développement du droit international pour la protection du milieu marin : Le cas spécial de l’Arctique

Immediately after the adoption of its Arctic Pollution Prevention Act in 1970, Canada embarked on intense diplomatic efforts in a number of international for a to obtain recognition of international law principles which would serve as a basis for its legislation. These efforts were pursued mainly in three international conferences : the Stockholm Conference on the Human Environment of 1972, the London Conference of the International Maritime Consultative Organization on the prevention of pollution by ships in 1973 and the United Nations Third Law of the Sea Conference which began in 1974 at Caracas. At the 1975 session of that Conference, held in Geneva, a form of Artic clause was inserted in the first Negotiating Text and it provided that coastal States could adopt special protective measures in special areas within their exclusive economic zone, where exceptional hazards to navigation prevailed and marine pollution could cause irreversible disturbance of the ecological balance. In 1976, the provision was enlarged to enable coastal States themselves to enforce such protectives measures, instead of leaving the enforcement to the flag State, and the provision has been kept without change in all the subsequent negotiating texts of 1977, 1979 and 1980. Considering the wide consensus which this provision has received, particularly on the part of other Arctic States, it may now be regarded as part of customary international law and completely validates Canada's arctic legislation

Canada\u27s Arctic Jurisdiction in International Law

The purpose of this study is to make a brief overview of Canada\u27s jurisdiction in the arctic regions, jurisdiction which has developed since the transfer of the Arctic Islands to Canada by Great Britain in 1880. The study will concentrate on Canada\u27s jurisdiction over the water areas of the Arctic, but will also cover the status of the other areas involved. More specifically, the areas to be covered are: 1) the islands; 2) the continental shelf; 3) the waters in general; 4) the Northwest Passage; and 5) the airspace

Canada\u27s Sovereignty Over the Northwest Passage

In 1968, when this writer published Innocent Passage in the Arctic, Canada had yet to assert its sovereignty over the Northwest Passage. It has since done so by establishing, in 1985, straight baselines around the whole of its Arctic Archipelago. In August of that year, the U. S. Coast Guard vessel Polar Sea made a transit of the Northwest Passage on its voyage from Thule, Greenland, to the Chukchi Sea. Having been notified of the impending transit, Canada informed the United States that it considered all the waters of the Canadian Arctic Archipelago as historic internal waters and that a request for authorization to transit the Northwest Passage would be necessary. The United States refused to make such a request, taking the position that the Northwest Passage was an international strait. As a result, the two governments agreed that the crossing of the Polar Sea would take place without prejudice to their respective legal positions

State Jurisdiction over Ice Island T-3 : The Escamilla Case

The matter of State jurisdiction over ice islands in the Arctic Ocean is no longer only an academic question raised by professors of international law. A recent incident involving the killing of a member of an American research team on Ice Island T-3 raises that question in a very realistic way. The purpose of this short paper is to review the relevant facts and to offer a few comments on the issue of jurisdiction in the light of the legal nature of the Arctic Ocean and of Ice Island T-3. On 16 July 1970, the shooting of the leader of a 20-man joint government-industry research team, one Bennie Lightsy of Louisville, Kentucky, took place in a hut on Ice Island T-3 (the third ice island sighted as a radar target, hence its name T-3), floating in the Arctic Ocean at 84° 47' North latitude and 106° 28' West longitude, within the so-called Canadian sector. Lightsy had gone to the hut to attempt to settle an argument over a jug of wine when he was shot with a rifle by one Mario Escamilla, a Mexican-born American citizen from California. Following a radio report about the incident, an American investigation team, composed of Naval and Coast Guard Intelligence officers and an Assistant U.S. Attorney, flew to Thule, an American Air Force Base in Greenland, and then to the ice island in question. Upon completion of the investigation, Escamilla was brought to the United States, after a change of plane at Thule, and landed at Dulles airport in Virginia. He was initially charged with murder in the first degree before a magistrate in the District Court for the Eastern District of Virginia, within which Dulles airport is located, and was subsequently indicted by a grand jury for the lesser offence of second degree murder. The issue raised is whether the United States or Canada, or both, had jurisdiction over the alleged crime committed on Ice Island T-3. The complaint stated that the ice island was floating on the high seas within the special maritime and territorial jurisdiction of the United States of America and out of the jurisdiction of a particular State. The only other State which could have claimed jurisdiction, since the incident took place well within its arctic sector, was Canada. Having examined the possible bases for state jurisdiction in international law, the conclusion is that the United States has properly exercised its personal jurisdiction over the T-3 incident. It is submitted that the legal status of the Arctic Ocean is essentially the same as for any other ocean and that Ice Island T-3 may, for the present purposes at least, be assimilated to a ship. Consequently, the incident may be deemed to have taken place on an American ship on the high seas. It might be added, however, that a further question may arise under American domestic law, as distinguished from international law, whether the term "vessel" in the United States Code is capable of a sufficiently liberal construction as to include an ice island. If it is not, the United States should be able to assume its personal jurisdiction on the basis of the nationality of the accused person and the national character of the research station

Canada and the OAS: the Vacant Chair Revisited

Two basic questions are examined: first, why has the CANADA chair in the Council's room of the OAS remained unoccupied since 1910, and, second, should Canada occupy that chair. The answer to the first question lies in Canada's perception of itself as a north Atlantic country, belonging more to Europe than to the Americas. On the second question, the author's opinion is that Canada should take its seat in the OAS, in order to better promote stability in the hemisphere through peaceful solutions of the economic and social problems, which are at the basis of the unrest in the region.L’auteur étudie deux questions principales : premièrement, pourquoi le fauteuil du CANADA demeure inoccupé dans la salle du Conseil de l’OEA depuis 1910 et, deuxièmement, le Canada devrait-il occuper ce fauteuil. La réponse à la première question est liée au fait que le Canada se perçoit comme un pays de l’Atlantique nord, faisant davantage partie de l’Europe que des Amériques. Sur la deuxième question, l’auteur est d’avis que le Canada devrait prendre son siège à l’OEA, afin de mieux promouvoir la stabilité de l’hémisphère par des solutions pacifiques aux problèmes économiques et sociaux qui sont à la source du malaise dans cette région