CANADIAN CLAIMS TO TERRITORIAL SOVEREIGNTY IN THE ARCTIC REGIONS

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CANADIAN CLAIMS TO TERRITORIAL SOVEREIGNTY-,.-.
IN THE 'ARCTIC . REGIONS :2_
_ . - . .
'Ivan L
VOLUME. 9
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NUMBER 3'
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CANADIAN CLAIMS TO TERRITORIAL SOVEREIGNTY
IN THE ARCTIC REGIONS
Ivan L. Head*
The polar areas are among the last on earth to be settled by man. These
remote lands ? for centuries unattractive to either colonizer or invader ?
present to the international lawyer a laboratory case. Virgin territory, terra
nullius, to which he can objectively apply the rules relating to territorial
sovereignty. The rules to be applied are sought here.
A feudal baron acquired title to terra nullius when his occupation was so
effective as to deter successfully all attackers.' Might, in that case, was right.
If the Pope recognized the' baron's claim, then the authority of the Christian
world stood behind the title.,2 New rules were devised for new circumstances
during the era of great discoveries, circa 1460 to 1550, and fo-r a century or more
thereafter. "Discovery with symbolic taking of possession was clearly suffi-
cient to constitute title to terra nullius before 1700.-3 More sophisticated
principles became necessary as claims overlapped, however. Even before 1700,
'possession' emerged as the key ingredient in a good title and Spain,4 France,'
and England rejected claims based solely on discovery. Queen Elizabeth told
the Spanish Ambassador that:6
... she would not persuade herself that the Indies are the rightful property of Spain . . . only
on the ground that the Spaniards have touched here and there, have erected shelters, have
*B.A., LL.B. (Alberta), LL.M. (Harvard); of the Department of External Affairs, Canada.
The views expressed in this article are those of the author and do not necessarily 'reflect thosc of the
Canadian Government.
'von der Heydte, "Discovery, Symbolic Annexation and Virtual Effectiveness in International
Law" (1936) 29 Am. J. Intl. L. 448, at 449.
'The power of the Pope to issue the Bulls was supposed to be based on the Donation of Constantine
which conveyed to Pope Sylvester and his successors title to many lands. St. Augustine elaborated
this into the doctrine that the whole world was the property of God and that mankind enjoyed
only a usufructuary interest. The power of disposition of unoccupied areas thus fell to rife Popes
as part of their claimed authority over all things temporal. This authority rested either in their
position as vice-regents of God on earth or as Vicars of Christ. A further ingredient in this Papal
power was the obligation of the Church to carry the teachings of Christ to all heathens and infidels;
it therefore appeared to the Church to be its normal function to authorize Christian monarchs to
acquire territory outside the civilized world.
3Simsarian, The Acquisition of Legal Title to Terra Nullius" (1938) 53 Pol. Sci. Q. 111, at 112.
"Goebel, The Struggle for the Falkland Islands (1927), 96, quoted from "Coleccion dc los Viajcs y
Descubrimientos" (1825) 4 Navarrete 312.
'Davenport, European Treaties Bearing on the History of the United States (1917), v. 1, p.120.
'Camden, The History of the Most Renowned and Victorious Princess Elizabeth, Late Queen of England
(3rd cd., London, 1675), p. 255.
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No. 3]
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No. 3] SOVEREIGNTY IN THE ARCTIC REGIONS 201
given names to a river or promontory, acts which cannot confer property. So that , . . this
imaginary proprietorship ought not to hinder other princes from carrying on commerce in ?
these regions and from establishing colonies.where Spaniards arc not residing, without the
least violation of the law of nations.
As the age of discovery gradually merged into the age of colonialism, emphasis
became more pronounced on the requirement of occupation or 'real', as opposed
to 'constructive', possession as a constituent of title.
In the 19th century, Russia justified its title to Alaska by listing those
standards against which, at that time, territorial claims were measured. In a
letter to the United States Secretary of State, John Quincy Adams, dated 28
February 1822, Pierre de Poletica, the Russian Minister in Washington, said:7
... it is easy, Sir, as appears to me, to draw the conclusion, that the rights of Russia to the
extent of the North-west Coast . .. rest upon the three bases required by the general Law of
Nations and immemorial usages among nations; ? that is, upon the title of first discovery;
upon the title of first occupation; and, in the last place, upon- that which results from a peaceful
and uncontested possession of more than half a century; an epoch, consequently, several years
anterior to that when the United States took their place among Independent Nations.
A further ingredient, notification of the claim to other nations ? an overt
expression of animus possidendi ? was adopted in the General Act of the Con-
ference of Berlin, 1884-1885.8
The Berlin Conference spawned as well the requirement for "establishment
of authority."' The foundation was thus laid for the modern requirement of
international law as later expressed by various international tribunals:
. . exercise exclusive authority," continued display of authority,"55
and ". . . occupation . . . must be effective."" These tribunals followed in the
path of the Institute of International Law at Lausanne which had declared
in 1888:"
Pro jet de Declaration Internationale relative aux Occupations de Territoires.
Art 1 ? L'occupation dun territoire a titre de souveraincte ne pourra etre reconnue comme
effective que si elle reunit les conditions suivantes.
10. La prise de possession d'un territoire enferme dans certaines limitcs, faite au nom
du gouvernement;
7(1821-22) 9 British and Foreign State Papers 483, at 485.
8(1884-85)76 British and Foreign State Papers 4. It may be argued that the United States practice
of 'reserving' its rights to certain territories discovered by its nationals is inconsistent with any
requirement for notice. See, e.g., note dated 24 February 1934 from United States Secretary of State
to British Ambassador in Washington, Hackworth, International Law (1940), v. 1, p. 457, and note
dated 16 January 1939 from United States Secretary of State to Norwegian Legation in Washington,
Hackworth, op. Cit., V. 1, at 460.
The signatories were Great Britain, Austria-Hungary, Belgium, Denmark, France, Germany,
Netherlands, Portugal, Russia, Spain, Sweden, Norway, and Turkey. The United States signed,
but did not ratify, the Act.
laArbitral Award of His Majesty the King of Italy on the Subject of the Difference Relative to
the 1Sovereignty over Clipperton Island (France-Mexico), 28 January 1931, "Judicial Decisions In-
volving Questions of International Law- (1932) 26 Am. J. Intl. L. 390, at 393.
"Legal Status of Eastern Greenland [1933] P.C.I.J. ser. A /B, No. 53, at p. 45.
"The Island of Palmas Case (United States-Netherlands) (1928) 2 R.I.A.A. 829, at 846.
1310 Annuaire de l'Insiitut de Droit International 201.
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202 McGILL LAW JOURNAL
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2?. La notification officielle de la prisc dc possession.
La prise de possession s'accomplit par l'etablissement dun pouvoir local rcsponsable,
pourvu de moyens suffisants pour maintenir l'ordre et pour assurer l'exercice regulicr dc son
autorite dans les limit-es du territoire occupe. Ces moyens pourront etre empruntes a des insti-
tutions existantes dans le pays occupe.
La notification dc la prise dc possession se fait soit par la publicatiOn dans la forme qui
dans chaque ?t est en usage pour la notification des actcs officielles, soit par la voie diplo-
matique. Elle contiendra la determination approximative des limites du tcrritoire occupe.
'Effective occupation" has been interpreted many times." The arbitral
award in the Clipperton Island case stated that the occupying state must take
steps to exercise exclusive authority and that ". . . that only takes place when
the state establishes in the territory itself an organization capable of making
its laws respected ."5
15
The development of the international law of territory has been the gradual
elimination of 'constructive possession' in favour of 'effective occupation.'
The planting of flags, the simple proclamation of claims, the magnification of
the claimed area through the device of the 'hinterland' and 'contiguity'
theories ? all these have passed from favour. Yet boldly evident, as if to
deny the ability of international jurisprudence to catalogue orderly its materials,
stands a theory seemingly inconsistent with this pattern. It is the polar sector
theory.
II
The practice of claiming sovereignty over a sector of the earth's surface, as
measured by meridians of longitude, is not new. The first example is found
in the Papal Bull Inter Caetera of Alexander VI, dated 4 May 1493," later
replaced by the Treaty of Tordesillas concluded 7 June 1494 between Spain
and Portugal." More recently, various States have circumscribed their claims
to portions of Antarctica by meridians of longitude." And several states have
subscribed at one time or another to the 'sector theory.'
The Arctic 'sector theory' is rightly associated with Canada for it was
first offered by a Canadian, and first debated in the Canadian Parliament. In
the half century since the first appearance of the theory, many Canadian
statesmen have taken great pains either to criticize it or praise it. Some have
offered a disarming display of their open-minded attitude and have spoken
on various occasions on both sides of the issue.
An Arctic sector is deceptively simple, and is compounded of only two
ingredients: a base line or arc described along the Arctic Circle through territory
"See, e.g., Home Frontier and Foreign Missionary Society of the United Brethren in Christ (United States)
v. Great Britain (1920) 6 R.I.A.A. 42; United States (Noyes) v. Panama American and Panamanian
General Claims Arbitration, [1933] Hunt's Report 155.
"The Clipperton Island Award, supra, note 10 at 393-4.
"Davenport, op. cit., supra, note 5, v. 1, at 71.
"ibid., 84, at 95. The treaty was confirmed by the Bull Ea Quae, dated 24 January 1506; Davenport,
op. cit., v. 1, at 107.
"Sec Oppenheim, International Law (8th ed., Lauterpacht, 1955), v. 1, 556-7.
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No. 31 SOVEREIGNTY IN THE ARCTIC REGIONS 203
unquestionably within the jurisdiction of a temperate zone state, and sides
defined by meridians of longitude extending from the North Pole south to the
most easterly and westerly points on the Arctic Circle pierced by the state.
Under the theory, nations possessing territory extending into the Arctic regions
have a rightful claim to all territory.? be it land, water or ice ? lying to
their north. This claim springs from the geographical relationship of the
claimant state to the claimed territory; the two areas must be contiguous
along the Arctic Circle.
The Arctic sector theory was first publicly propounded by Pascal Poirier,
a Canadian Senator, in 1907. Senator Poirier was at that time delivering a
speech in the Senate, the upper house of Canada's bi-cameral Parliament, in
support of his own motion:n
That it be resolved that the Senate is of the opinion that the time has come for Canada to
make a formal declaration of possession of the lands and islands situated in the north of the
Dominion, and extending to the north pole.
Poirier's resolution was abortive. His motion was neither seconded nor
put to a vote. The draft resolution embodied in the motion was not accepted
by the Senate, and never reached the floor of the House of Commons. Officially,
Senator Poirier's Arctic sector theory was a one-man idea, but it rapidly
attracted attention disproportionate to the importance attached to it by
Poirier himself." Poirier said that Canada had four claims to sovereignty in
the Arctic regions. The first claim was through the Arctic discoveries of such
English explorers as Cabot, Frobisher, Davis, Perry, Baffin, and Fox. The
second claim arose out of the cession to the English Crown of all French claims
in what is now Canada by the Treaty of Paris in 1763.21 The third claim was
based on the occupying exploits of the Hudson's Bay Company.22 Only as a
fourth ground did Poirier mention sectors :23
We have a fourth claim, we can establish a fourth ground for ownership of all the lands
and islands that extend from the arctic circle up to the north pole. Last year, I think it was,
when our Captain Bernier [a noted Arctic explorer of that day] was in New York, a guest of
the Arctic Club, the question being mooted as to the ownership of Arctic lands, it was proposed
and agreed ? and this is not a novel affair ? that in future partition, of northern lands, a
country whose possession today goes up to the Arctic regions, will have a right, or should
have a right, or has a right to all the lands that are to be found in the waters between a line
extending from its eastern extremity north, and another line extending from the western
"1906-07 Debates, Senate, Canada, 266.
20Poirier addressed the Senate on the same subject a few years later, but made no mention of the
sector theory. Instead, he emphasized the importance of occupation and the exercise of jurisdiction
as evidence of sovereignty. See 1909-10 Debates, Senate, Canada, 179-184.
"The Definitive Treaty of Peace and Friendship between His most Brittanick Majesty, the Most
Christian King, and the King of Spain, A Collection of All the Treaties of Peace, Alliance, and Commerce
between Great Britain and other powas from the Revolution in 1688 to the Present Time (London, 1772),
v. II, p. 272.
"Thcsc exploits, sweeping though they were, did not match the claims of the Company, however.
Poirier quoted a Company claim to all lands lying from the north of Hudson Bay to the North Pole.
Supra, note 19, at 271.
23Supra, note 19, at 271.
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204 McGILL LAW JOURNAL
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extremity north. 'All the lands between the two lines up to the north pole should belong
and do belong to the country whose territory abuts up there. Now if we take our geography,
it is a simple matter.
The Senator then marked off the globe into five sectors, each commencing in
the territory of a nation lying immediately below the Arctic Circle: Norway
and Sweden, Russia, the United States (Alaska), Canada, and Denmark (Green-
land). In doing so he stated:24
From 141 to 60 degrees west we are on Canadian territory. That is the territory that has
been discovered by the seamen of England, that has been traversed by MacClurc and by Franklin.
It is the territory that has been taken possession of by the Hudson Bay Company, and it is
the territory that we claim, and I hold that no foreigner has a right to go and hoist a flag on
it up to the north pole, because it is not only within the sphere of possession of England, but
i
it is n the actual possession of England. This partition of the polar regions seems to me to be the
most natural, because it is simply a geographical one. By that means difficulties would be
avoided, and there would be no cause for trouble between interested countries. Every country
bordering on the Arctic regions would simply extend its possessions up to the north pole.
This passage leaves the impression that Poirier felt that Canada was rightly
entitled to the Arctic areas to the north by virtue of discovery and actual
possession; that the sector theory was more of a policy of containment to be
employed .by all Arctic nations, but one on which Canada need not rely in the
first instance.
Senator Poirier was not unfamiliar with the more conventional theories of
title to terra nullius. Indeed he forecast the later findings of the arbiter in the
Isle of Palmas case by his statement on effective occupation:"
... in the case of the Arctic wastes and recesses, what is deemed, in my view of it, sufficient
to establish possessions and give a good title, is occupancy as much as occupancy can take
place. No more would be demanded to make a perfect title for England in those regions than
is requisite in the case of France in the Sahara Desert. No one expects France to till the Sahara
Desert in order to come within the definition of what is needed to perfect occupancy. The
fact is, England did what could be done in the way of occupancy. ..
The sector theory gained little immediate sympathy from the Canadian
Government. The Right Honourable Sir Richard J. Cartwright, Minister of
Trade and Commerce and the Government, leader in the Senate, closed the
debate by speaking immediately following Poirier. He said, in part:"
. . . I may state to my hon. friend that the importance of having the boundary of Canada
defined to the northward has not at all escaped the attention of the government. They have,
as the hon. gentleman knows, sent out an expedition very recently to that region, and have
established certain posts, and they have likewise exercised various acts of dominion. They
have, besides establishing the posts I have referred to, levied customs duties and have exercised
our authority over the various whaling vessels they have come across, which, I think, will be
found sufficient to maintain our just rights in that quarter. . .
Pascal Poirier and his 'sector theory' have gained a permanent position in
the history of the Arctic. In the period between the wars, considerable atten-
"ibid. The German writer Breitfuss in "Territorial Division of the Arctic" (1928-9) 8 Dalhousie
Review 456. at 467-S, also suggests 5 sectors: Norwegian-Finnish, Soviet, Alaskan, Canadian, and
Greenland. The Soviet writer Likhtine, on the other hand. in "Rights Over the Arctic" (1930)
:14 L, 703 at 715-6, suggests 6 sectors: Norwegian, Finnish, Soviet, Alaskan, Canadian,
and Greenland.
"Supra, note 19, at 273.
26/6id., at 274.
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No. 3] SOVEREIGNTY IN THE ARCTIC REGIONS 205
tion was focused on the far north, and much learned comment about the theory
appeared in print. Opponents of the theory argued powerfully that national
claims under the theory were in exact reverse order to the normal process of
acquisition. The sector theory places territory in the legal possession of a
state even before it is discovered. How, it was argued, can a state claim
sovereignty over areas about which it knows absolutely nothing? As late as
1930, when some speculation still remained about the existence of an Arctic
land mass similar to the sub-continent of Antarctica, the sector principle
appeared to differ little from the Spanish and Portuguese claims of the early
16th century. Proponents of the theory, on the other hand, often rested their
cases on fragile supports. Poirier had said, for example ? but almost paren-
thetically ? that a geographical division of the Arctic would avoid -diffi-
ailties" between interested nations." The. Soviet writer Lakhtine argued
that sectors offered the only -practical- solution to the problem." Theorists,
however, often thought otherwise. Smedal, a prominent Norwegian publicist
of t4, period, was very outspoken:29
The parties on whom the greatest wrong would be inflicted by the sector principle are the
States that are not bounded by the Arctic Sea. Any State whatsoever may, from scientific or
economic reasons, be interested in having the sovereignty over an Arctic land, and it is qiiite
illegitimate to exclude such a State from obtaining this on the pretence that its territory is
not lying sufficiently far to the north. Lakhtine objects to this view on the ground that the
interests of these States in the Arctic can only be of an 'imperialist character', and that the
interests for this reason 'cannot be recognized as being reasonable'. However, it cannot in
any way be admitted that a sector State, in looking after its economic and political interests
in the Arctic, is performing an \ act of a more elevated or ideal character than any other State
does in looking after its interests.
Contiguity is the basic ingredient of a sector claim. The reasons advanced
in favour of sectors ? practicality, simplicity, even inevitability" ? flow
from the propinquity of the claimant state to the territories being claimed.
The bare principle of contiguity, however, no longer forms ? if indeed it ever
did ? any part of international law with respect to territory. In this sense,
the sector theory is related to the now discredited 'hinterland' theory. Smedal
regarded the sector theory as a perversion of the hinterland doctrine because
under it claims to territory proceed from the centre of a continent out towards
the sea rather than from the coast inward. McKitterick, however, found the
two theories to be part of the same whole:"
The sector theory is the last survivor of the old 'hinterland' principle as applied to continents,
and it appears to have no stronger basis in international law than that now discarded theory.
"Taracouzio, in Soviets in the Arctic (1938), 323, says this argument stems from the "pragmatic
school."
28Lakhtine, "Rights Over the Arctic" (1930) 24 Am. J. Intl. L. 703, at 711.
"Smedal, Acquisition of Sovereignty Over Polar Areas (Oslo, 1931, translation by Meyer), p. 62.
if these . . . Powers are satisfied with such a partition, the rest of the world will have to
be."?Hunter Miller, "Political Rights in the Arctic" (1925-26) 4 Foreign Affairs 47, at 60. "The
sector principle of territorial claims in the Arctic, if confined to lands and waters within the respective
sectors, is sufficiently in accord with the inevitable to make its tacit adoption highly probable."?
Svarlein, "The Legal Status of the Arctic" (1958) 52 Proceedings of the Am. Soc.y. of Intl. L. 136.
3'McKitterick, "The Validity of Territorial and Other Claims in Polar Regions" (1939) 2.1 J. of
Comparative Legislation and Inel. L. (3rd Series) 89, at 95.
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Under the present system, the occupation by one state of land falling within the sector of
another can at the most be regarded as unfriendly, but there seems to be no reason for assuming
that it would amount to a breach of the law.
III
Much has been written about the application of the sector theory to the
Arctic, but only one nation, the Soviet Union, has formally declared its claim
to Arctic lands on the basis of the theory. A Decree of the Presidium of the
Central Executive Committee of the Union of Soviet Socialist Republics, dated
15 April 1926, and entitled "Territorial Rights of the Soviet Union in the
Arctic" reads, in part:"
Are declared forming part of the territory of the Union of Soviet Socialist Republics all lands
and islands already discovered, as well as those which are to be discovered in the future, which
at the time of the publication of the present decree are not recognized by the Union of Soviet
Socialist Republics as the territory of any foreign state, and which lie in the Arctic north of
the coast of the Union of Soviet Socialist Republics up to the North Pole, within the limits
between the meridian longitude 32*-4'-35" east from Greenwich passing along the eastern
side of Vaida Bay through the triangular mark on the Cape Kekurski, and the meridian longi-
tude 168?-49'-36" west from Greenwich passing along the middle of the strait separating
Ratmanov and Kruzenshtern Islands of the Diomede Archipelago lying in Bering Strait.
The decree refers only to "lands and islands." (Poirier also talked about
"lands and islands.") Notwithstanding, Professor Korovin has stated that
lands and islands are only part of the Soviet sector, and to conclude that ice
and water are not also included ". . . would be in conflict with the whole idea
of the Decree."" If ice formations and the seas surrounding the Arctic lands
were not included, then ". . . the polar sector adjacent to the U.S.S.R. would
have to be considered as an open sea with all the consequences resulting from
such an interpretation."" Lakhtine asserts that "Polar States acquire sover-
eignty over them [seas, floating ice and permanent ice] within the limits of
their sectors of attraction."" Lakhtine was, in 1930, the Secretary-Member
of the Committee of Direction of the Section of Aerial Law of the Union of
Societies' ossoaviachim of the U.S.S.R.
Such opinions are not limited to Soviet publicists. Professor Hyde has
stated that the sector theory ". . . marks indifference as to the nature of the
surface of the area concerned ? whether it be land, or ice, or water.""
IV
Canada has often been referred to as the haven of the sector theory. There
is much evidence that this is not so. Canadian Government reception to
Senator Poirier's original sector proposition, as stated above, was less than
enthusiastic. Nor did it soon change. Poirier had credited Captain Bernier,
a sea-faring explorer who had been commissioned by the Canadian Government
32(1926) 124 State Papers, Part II, 1064-5.
33As translated by Taracouzio, op. cit., supra, note 27,, at 348-9.
34/bid.
34Supra, note 28, at 712.
e, International Law (2nd ed., 1945), v. I, p. 349.
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has
the ?
here
to
:han
iier,
tient
No. 3] SOVEREIGNTY IN THE ARCTIC REGIONS
207
to lead several geographical missions into the Arctic, as a proponent of the sector
theory." Two years later, Captain Bernier was reported by a New York
newspaper as proposing that the several nations adjacent to the Arctic Circle
sHould meet for the purpose of dividing up the polar sea. Such a meeting
would be, in effect, an implementation of the sector theory. The then Prime
Minister of Canada, Sir Wilfred Laurier, was asked to comment on this report
in the House of Commons. He replied: ". . . if Captain Bernier spoke as he is
reported to have spoken, all lean say is that I think he had better keep to his
own deck."38
, On 10 June 1925, the Minister of the Interior, the Honourable Charles
Stewart, told the House of Commons that Canada claimed the territory to the
pole". . . outlined between the degrees of longitude 60 and 141. . Smeda1,4?
David Hunter Miller," and Professor Svarlein42 all regard this as evidence of
Canadian support of the sector theory. Miller wrote that the Canadian claims
were . . definitely and officially stated by Mr. Stewart, and are outlined on
a map laid on the table of the Canadian House of Commons."43 With respect,
theationourable Minister was less definite than Miller contends. The map was
not laid on the table of the House (a procedure of some legislative significance)
but was instead made available after the conclusion of the day's sitting 'for
examination by Members." The sector "claim" was made in the following,
V less than precise, manner:"
ait ?
?
. . . international law; in a vague sort of way, creates ownership of unclaimed lands within
one hundred miles of any co'ast, even if possession has not been taken. At least there is a sort
of unwritten law in that respect. Of course possession is a very large part of international
law as well as any other law.
Mr. Stewart had spoken in much the same terms earlier in the same session.
This vague outline of Canadian policy was a continuation of some hazy
Government statements in the period 1922 to 1924. In 1922, during a debate in
"Poirier had stated that Bernier's sector proposal to the Arctic Club was "not a novel affair,"
but did not enlarge on the statement. (See p. 203 above.) He may have considered the Papal Bulls as
precedents. The Canadian Government had itself employed sector overtones when in 1878 it sought
sovereignty over the Arctic islands by urging the definition of the Canadian boundaries as: "On
the East by the Atlantic Ocean, which boundary shall extend towards the North by Davis Straits,
Baffin's Bay, Smith's Straits and Kennedy Channel, including all the islands in and adjacent thereto
? . . on the North the Boundary shall be so extended as to include the entire continent to the Arctic
Ocean, and all the islands in the same westward to the one hundred and forty-first meridian west
of Greenwich; and on the North West by the United States Territory of Alaska."-1878 Debates,
Senate, Canada, vol. 1, p. 903. The occasion was a joint address to Her Majesty the Queen from
the Senate and the House of Commons of Canada. (See pp. 211-212 below.)
38190940 Debates, House of Commons, Canada, vol. 2, p. 2711-2.
1925 Debates, House of Commons, Canada, vol. 4, p. 4084.
"Op. cit., supra, note 29, at 65.
"Hunter Miller, "Political Rights in the Arctic" (1925-26) 4 Foreign Affairs 47, at 60.
42Svarlein, "The Legal Status of the Arctic" (1958) 52 Proceedings of the Am. Soc'y. of Int'l. L. 139.
"Supra, note 41, at 50.
"1925 Debates, House of Commons, Canada, vol. 4, p. 4083.
"Ibid., vol. 1, p. 1111.
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208 McGILL LAW JOURNAL
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Committee of Supply, the Leader of the Opposition and the Minister of Financc
(second only in rank at that time to the Prime Minister) contributed to the
following exchange after the Minister had been asked what the Government's
policy was with respect to the northern islands:"
Minister of Finance ? It is a delicate matter to state the policy of the Government on that
question.
Leader of Opposition ? Has the Government any policy?
Minister of Finance ? What we have we hold.
That question to the Minister appears to have been justified by later events.
If, at this time, Canada was adhering to the sector principle, it Might be ex-
pected that Canada would not lay claim to islands lying within the sector of
another country. Yet Canada did claim Wrangel Island, which is within the
Soviet sector. Prime Minister Mackenzie King told the House of Commons
in 1922 that the "Government certainly maintains the position that Wrangel
Island is part of the property of this country."" This certainty was short
lived. In 1923, the Honourable Ernest Lapointe, Minister of Fisheries in the
King government, when asked who owned Wrangel Island, replied: "I should
like to know myself."'" And the following year, the Honourable Charles
Stewart, Minister of the Interior in the same government, said ". . . as far as
Canada is concerned, we do not intend to set up any claim to the island.""
The Soviet authorities disposed of the problem by moving in and forceably
evicting the residents of the island. By that time the original Canadian
occupants had sold their interests to United States citizens, however, and it
became unnecessary for Canada to take any official stand.
These Government statements do not appear to endorse the sector theory
which, as enunciated by Senator Poirier, was designed to avoid territorial
disputes by dividing up the polar areas. The theory did not contemplate
unilateral claims in a foreign sector.
In 1938, Canada was evidently endorsing the sector theory. The Minister
of Mines and Resources of the Liberal Government told the House of Commons
that no foreign challenge to Canada's sovereignty in the Arctic could be success-
ful. He referred to his understanding that international usage had established
clearly certain principle ? upon which sovereignty could be claimed in remote
areas of the Arctic which have never been visited by man, and that these
principles were favourable to Canada." He did not enunciate the principles,
but they were other than the sector theory because:5'
What is known as the sector principle, in the determination of these areas is now very generally
recognized, and on the basis of that principle as well our sovereignty extends right to the
pole within the limits of the sector.
4G1922 Debates, House of Commons, Canada, vol. 2, p. 1750.
471bid. at 1751.
"1923 Debates, House of Commons, Canada, vol. 4, p. 3360.
"1924 Debates, House of Commons, Canada, vol. 2, p. 1110.
"1938 Debates, House of Commons, Canada, vol. 3, p. 3080.
"Ibid., at 3081. Italics added.
No. 3
The F
cignt
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441956
"1957'
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'col. 9
an cc
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No. 3] SOVEREIGNTY IN THE ARCTIC REGIONS ? 209
The Honourable Minister did not explicitly state that CanaJa claimed sover-
eignty to ice and water, but this may be inferred inasmuch as no land exists
within 450 miles of the pole.
Primc Minister St. Laurent repeated in 1953 the Government's view that
the Canadian boundary terminated at the pole. He told the House of Commons:"
We must leave no doubt about our active occupation and exercise of our sovereignty in these
lands right up to the pole.
The meaning of his words is not clear. Occupation precludes a claim under
the sector theory, but how does a nation occupy the ice and water lying between
the Arctic archipelago and the pole? Once again, the observer is invited to
assume that Canada lays claim to ice and water as well as to land. That, at
any rate, is what Lester B. Pearson wrote in 1946 when he was Canadian
Ambassador to the United States. His words were unequivocal:"
A large part of the world's total Arctic area is Canadian. One should know exactly what
this part comprises. It includes not only Canada's northern mainland, but the islands and the
frozen sea north_of the mainland between,the meridians of its east and wdst boundaries, ex-
tended to the North Pole.
The Minister of Northern Affairs and National Resources of the St. Laurent
Government expressed contradictory views to the House of Commons in 1956:"
We have never subscribed to the sector theory in application to the ice. We are content that
our sovereignty exists over all the Arctic Islands. There is no doubt about it and there arc no diffi-
culties concerning it ... We have never upheld a general sector theory. ,..10 our mind the sea,
,bc.aiLtr,;(4s.n..2,LkLi2.4firaul!ini.4...ws,F., is the sea? and our sovereignty exists over_teirc4
an over our territoria waters:
The most recent ministerial pronouncement, of special significance because
it was voiced by a member of the Conservative Government and was the first
policy statement on this subject made by an administration out of office from
1935 until 1957, was read to the House of Commons in 1958 by the Honourable
Alvin Hamilton, Minister of Northern Affairs and National Resources. Mr.
Hamilton was answering a question asked by Mr. Lesage, his Liberal pre-
decessor in the portfolio."
Mr. Lesage ? Are the waters of the Arctic ocean north of the Arctic archipelago up to the
north pole, in the so-called Canadian sector, Canadian waters?
Hon. Alvin Hamilton ? Mr. Speaker, the answer is that all the islands north of the mainland
of Canada which comprise the Canadian Arctic archipelago are of course part of Canada.
North of the limits of the archipelago, however, the position is complicated by unusual
physical features. The Arctic ocean is covered for the most part of the year with polar
pack ice having an average thickness of aboth eight feet. Leads of water do open up as
a result of the pack ice being in continuous motion, but for practical purposes it might
be said for the most part to be a permanently frozen sea. It will be seen, then, that the
Arctic ocean north of the archipelago is not open water nor has it the stable qualities
621953-54 Debates, House of Commons, Canada, vol. 1, p. 700; reprinted in (1954) 6 External Affairs
16 (Ottawa).
"Pearson, "Canada Looks Down North" (1945-46) 24 Foreign Affairs 638. Mr. Pearson later
served as Secretary of State for External Affairs in the St. Laurent Government.
"1956 Debater, House of Commons, Canada, vol. 7, p. 6955.
0,61957-58 Debater, House of Commons, Canada, vol. 2, p. 1559.
c3.4 co
?k
q,(6.
^
?,!
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210 McGILL LAW JOURNAL [Vol. 9
of land. Consequently theordinacy_rtAcLoLliz.r4liztal J.= j2z..2.1-L?i!y not have
2..p.platj.2LL.
Before making any decision regarding thc status which Canada might wish to contend
for this arca, thc government will consider every aspcct of the question with due regard
to thc best interests of Canada and to international law.
Mr. Hamilton's subsequent statements appear to be consistent with estab-
lished principles of international law. He has said in the House of Commons:
-Sovereignty is the effective occupation of an area by a country which has
command or control over it."" On another occasion: -This great northland
of ours is not ours because it is coloured red on a map. It will only be ours by
effective occupation." 67
Few Canadian policies have been so inconsistently or unhappily inter-
preted over the years as that pertaining to the Arctic frontiers. The most
recent statements indicate that Canada now relies in the last instance upon
effective occupation. What then of the sector theory? Is it, as regards Canada,
only a myth? Or was it once a part of Canadian policy which has now fulfilled
its purpose and has disappeared in the wake of increased civilization in the
Arctic? Whatever its role, the sector principle must be viewed in the perspective
of the total Canadian claim ? a claim with broad foundations, a claim,
according to the Canadian Government, which is consistent with the principles
of international law.
V
Canada's claim to territorial sovereignty in the Arctic has many roots.
Discovery, exploration, acquisition by treaty, effective occupation ? all
ingredients are present.
Discovery and Acquisition
A Canadian historian has written: -A careful examination of histories of
exploring expeditions to and amongst the Arctic islands will clearly show that
all except Axel Heiberg Island and the Ringnes Islands . . . were discovered
and named by British explorers."" Commencing with the voyage in 1497 of
John Cabot's son Sebastian to the northern coast of Labrador under commission
of King Henry VII, any historical account of Arctic North America contains
little else but English names: Frobisher in 1576, Davis in 1585-7, Hudson in
1610, Baffin in 1615 and 1616. After a pause of almost two centuries, the assault
on the North-west passage was renewed. In 1819-20 Perry reached Melville
Island; in 1831 Ross discovered the north magnetic pole; in 1845 Franklin
"1958 Debate', House of Commons, Canada, vol. 2, P. 1979.
67/bid., at 1989. Prime Minister Diefenbaker ha S since said, in a peripheral fashion, that: ". . .
everything that could possibly be done should be done to assure that our sovereignty to the North
Pole be asserted, and continually asserted, by Canada."-1958 Debates, House of Commons, Canada,
vol. 4, p. 3652.
"Johnston, "Canada's Title to the Arctic Islands" (1933) 14 Canadian Historical Rev. 24, at 25.
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No. 3]
navigated
M'Clintocl
by land ar
in 1867, th
tions. By
and 1886.
scribed:"
This mc
Canada
to 141?
Steffanson
Mounted I
single seas(
What
treaty. Th
possessions
The bound
by treaty i
even folio
Canada pas
from the U
was follow
"See 19094
"See: "The
Polar Record :
of thc St. Roci
615upra, noti
62Conventio
(1824-25) 12 I
ligne meridien1
entre les Poss
"jusqu'i" ma
eluding" the
wording of th(
same Frozen
of America and
the 1926 Sovit
David Hunter'
The P.C.I.J. cc
of Saint-Naoun,
exclusive or in
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ol. No. 3] SOVEREIGNTY IN THE ARCTIC REGIONS ? 211
have
ntend
egard
stab-
ions:
has
land
7S by
nter-
most
apon
Lada,
illed
, the
aim,
iples
30tS.
? all
of
that
rered
)7 of
;sion
tains
m in
sault
villc
iklin
. .
North
tnada,
at 25.
navigated Lancaster Sound before perishing in Franklin Straits in 1846.
M'Clintock sledged 1,408 miles overland in 105 days. Finally, in 1858, McLure,
by land and water, made the North-west passage. Following Confederation
in 1867, the Canadian Government itself commissioned several Arctic explora-
tions. By 1910 there had been eight such missions, the first three in 1884, 1885
and 1886. In 1909 Captain Bernier mounted a tablet on Melville Island in-
scribed:"
Winter Harbour, Melville Island
C.G.S. 'Arctic', July 1, 1909.
This memorial is erected today to commemorate the taking possession for the Dominion of
Canada of the whole Arctic archipelago lying to thc north of America from longitude 60? W.
to 141? W. up to the latitude of 90? N.
J. E. Bernier,
Commander.
Steffanson was in the north from 1913 to 1918. In 1944 the Royal Canadian
Mounted Police schooner 'St. Roch' navigated the North-west pas_sage_in_a,
single season for the fit:st sime,.6?
What it did not discover, the Canadian nation acquired by purchase and
treaty. The Treaty of Paris, 1763," ceded to Great Britain all of France's
possessions in North America except the islands of St. Pierre and Miquelon.
The boundary between British North America and Russian Alaska was fixed
by treaty in 1825." The northern boundary remained undeclared, however,
even following Confederation. The Government of the new Dominion of
Canada passed an Order-in-Council dated 30 April 1875 requesting the transfer
from the United Kingdom of all the lands to the north of the Dominion. This
was followed by a joint address to Her Majesty the Queen from the Senate
69See 1909-10 Debates, Hou'e of Commons, Canada, vol. 1, p. 1730.
60See: "The Voyage of the St. Roch through the Northwest Passage-1941-42," at (1944) 4 The
Polar Record 115 (The Scott Polar Research Institute, Cambridge University); Wordic, "The Voyage
of the St. Roch through the Northwest Passage-1944," at (1945) 4 The Polar Record 259.
mSupra, note 21.
62Convention between Great Britain and Russia, signed at St. Petersburgh, 16 February 1825,
(1824-25) 12 British and Foreign State Papers 38. The treaty employed the language ". . . la meme
ligne meridienne du 14lieme degre formera, dans son prolongement jusqu'a la Mer Glaciale, la limite
entre les Possessions Russes et Britanniques sur le Continent de l'Amerique Nord-Ouest." The word
"jusqu'i." may be translated so that the line will extend "up to" the frozen sea or "up to and in-
cluding" the frozen sea. Lakhtine argues in favour of the more liberal translation and relies on the
wording of the 1867 treaty of sale of Alaska: ". . . proceeds due north, without limitation, into the
same Frozen Ocean."?Malloy, Treaties, Conventions, International Acts, etc. between the United States
of America and Other Powers (1910), v. 2, 1521, at 1522. Lakhtinc contends that this treaty justifies
the 1926 Soviet Decree annexing an Arctic sector. See note 32, supra: "Jusqu'i" is equivocal. Both
David Hunter Miller?note 41, supra, at 61?and Smedal?note 29, supra, at 67?concede this.
The P.C.I.J. considered the meaning of the word in its advisory opinion with respect to The Monastery
of Saint-Naoum [1924] P.C.I.J. ser. B, No. 9, at p. 20 and found it impossible to affirm either the
exclusive or inclusive interpretation.
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and House of Commons of Canada on 3 May 1878. After expressing the doubtful
status of the northern boundary, the address continued:"
That, to avoid all doubt in the matter, it is desirable that an Act of the Parliament of the
United Kingdom of Great Britain and Ireland should be -passed defining the North-Easterly,
Northerly, and North-Westerly Boundaries of Canada, as follows, that is to say: On the East
by the Atlantic Ocean, which boundary shall extend towards the North by Davis Straits,
Baffin's Bay, Smith's Straits and Kennedy Channel, including all the islands in and adjacent
thereto, which belong to Great Britain by right of discovery or otherwise; on the North the
Boundary shall be so extended as to include the entire continent to the Arctic Ocean, and all
the islands in the same westward to the one hundrcd and forty-first meridian west of Green-
wich; and on the North West by the United States Territory of Alaska.
The Imperial Government did not comply precisely with the request. By
an Order-in-Council dated 31 July 1880, ". . . all the British possessions on the
North American continent, not hitherto annexed to any colony. . ." were
transferred to Canada." Boundaries were not defined. A half-century later,
this omission prompted the following comment in a Canadian Government
publication: ". . . the reason advanced by those who have studied the attitude
of the British authorities is that it was finally considered inadvisable to define
that which according to available knowledge was indefinite. . 65 The
LLorthern boundary was fixed by a.proclamation for the first (and only) time
in 1895.66 The most northerly point, was stated to be 81R? North latitude at
the intersection of that parallel with 633/! West longitude ...then sloping, on
the east, southwards through Robeson-Channel, Kennedy Strait, Smith Sound,
Baffin Bay, and Davis Strait to the Atlantic Ocean and, on the west, south-
wards off the west side of the archipelago to the mainland.
Earlier, in 1869, the Dominion had purchased from the Hudson's Bay
Company the vast tracts known as Rupert's Land." Section 146 of the British
North America Act, 1867,68 enabled this to be done. Rupert's Land had been
described in the Company's charter, dated 2 May 1670, by which Charles II
granted to "The Governor and Company of Adventurers of England trading
into Hudson's Bay" :"
... the sole trade and commerce of all these seas, straits, bays, rivers, lakes, creeks, and sounds,
in whatsoever latitude they shall be, that lie within the entrance of the straits, commonly
? called Hudson's Straits, together with all the lands and territories upon the countries, coasts,
631878 Debates, Senate, Canada, vol. 1, p. 903.
"Canada Gazette, 9 October 1880.
\ 6Canada, Department of the Interior, Southern Baffin Island (1930), 12.
I 6659-60 Vict., S.C. 1896, at p. xlvii-xlviii.
fs "For an account of these negotiations, see the Report of the Delegates Appointed to Negotiate for the
'Acquisition of Rupert's Land and the North-West Territory, laid before the Parliament of Canada by
command of His Excellency the Governor General, 17 May 1869 (Queen's Printer, Ottawa).
68The British North America Act, 1867; 30-31 Via., c. 3.
??Charters, Statutes, Orders-in-Council, etc. relating to the Hudson's Bay Company, (London, 1931), p.
3-21. The Charter granted to the Company wide political and administrative powers but recognized
tliultimate sovereignty of the British Crown. All territorial acquisitions of the Company benefited
the Crown, therefore. Individuals, in law, cannot claim territorial sovereignty. Seci , The
Acquisition and Government of Backward Territory in International Laws (1926), 108.
1'
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and
act
oth
rcp
Can
Th is NS
Goverr
about
Norwa
ingly,
the sol
on any
Effect
Car
of Noi
1958:7
bu
tel
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th
m,
a
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in 1957
71195
721bik
for Mr.
73Dic
76vor
Law" (
[Vol. 9
oubtful
'nt of the
'Easterly,
the East
s Straits,
adjacent
4orth the
and all
of Green-
1
By
on the
were
Ylater,
rriment
ittitude
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" The
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ommonly
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iate fir the
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a). 1,
1931),p.
recognized
benefited
idlcy, The
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No. 3] SOVEREIGNTY IN THE ARCTIC REGIONS
213
and confines of the seas, bays, lakes, rivers, creeks, and sounds aforesaid, that are not already
actually possessed by or granted to any of our subjects, or possessed by the subjects of any
other Christian Prince or State, . . . and that the said land be from henceforth reckoned and
reputed as one of our plantations or colonies in America, called 'Rupert's Land.'
Canada now needed but a single further piece to complete its land map.
This was provided in 1930 in the form of an exchange of notes between the
Governments of Norway and Canada which removed any lingering doubts
about the Sverdrup Islands, discovered by a Norwegian. The Government of
Norway recognized Canadian sovereignty over the islands but added, interest-
ingly, that they were ". . . anxious to emphasize that their recognizance of
the sovereignty of His Britannic Majesty over these islands is in no way based
on any sanction whatever of what is named 'the sector principle.-70
Effective Occupation
Canada is cognizant of the doctrine of effective occupation. The Minister
of Northern Affairs and National Resources told the House of Commons in
1958:"
. .. you can hold a territory by right of discovery or by claiming it under some sector theory
but where you have great powers holding different points of view the only way to hold that
territory, with all its great potential wealth, is by effective occupation.
The Leader of the Opposition said much the same thing:"
The sector theory itself is not enough; it must be followed by rights based on discovery and
effective occupation.
At what point does occupation become 'effective?' The standard is subjective.
Professor Dickinson has interpreted the Clipperton Island Award of 1932 as
applying to all uninhabited and uninhabitable regions, and as meaning that
the occupation which is required of stich regions is only such occupation as is
appropriate and possible under the circumstances." He considers this to be
\ in each case a question of fact and regards the principle as being ". . . a realistic
\ and altogether satisfactory solution from the legal point of view."74 Von der
r,\ Heydte assimilates effectiveness to the presence of human beings:75
Effectiveness . . . means the guarantee of a minimum of protection to one's own subjects as
well as to foreigners coming to the region. Effectiveness then seems to be best illustrated by
the actual display of sovereign rights, the maintenance of order, and protection. But as a
matter of fact sovereign rights can be exercised only over human beings, in inhabited lands;
a certain order can be maintained only amongst human beings, i.e., again in inhabited coun-
, "Canada Treaty Series (1930), v. 1, No. 17. A statue of Sverdrup was erected in Steinkjer, Norway
in 1957; Canada contributed to the cost.
711958 Debates, House of Commons, Canada, vol. 4, p. 3540.
"Thici., at 3512. The Leader of the Opposition was the Hon. Lester B. Pearson. See p. 299 above
for Mr. Pearson's views 13 years earlier when Canadian Ambassador to the United States. r,
"Dickenson, Editorial Comment on: "The Clipperton Island Case" (1933) 27 Am. J. Intl. L. 130.
"Ibid., at 133.
\
"von der Heydte, "Discovery, Symbolic Annexation and Virtual Effectiveness in International
Law" (1935) 29 Am. J. Intl L. 448, at 463.
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214 McGILL LAW JOURNAL
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tries; and protection too can bc granted only to human beings. It would be a misconstruction
of the doctrine of effectiveness to say that sovereignty over completely uninhabited lands
presupposes in every case actual occupation.
Schwarzenberger, too, believes that the standard varies from place to place."
Few commentators would disregard effective occupation as a factor in the
determination of sovereignty in polar areas. The judgment of the Permanent
Court of International justice in the case concerning the Legal Status of Eastern
Greenland" has been criticized as detracting from the importance of the principle.
Reeves observed that the attitude of the Court in that case may ". . . be of
support to a state which is seeking to strengthen its claim to territory upon
bases other than effective occupation."'"
Lakhtine is one of the few who argue against effective occupation, on the
ground that it is an unreasonable obligation in the Arctic." It is suggested
that the better, opinion is that of Hyde:8?
If, on account of the rigor of the climate in the polar regions, the minimum requirements of
the law of nations for the acquisition of a right of sovereignty over newly found lands are to
be deemed to be relaxed when the area concerned is within those regions, the scope and character
of the relaxation need careful analysis and observation as practices are in course of develop-
ment. At the present time, means of communication and transportation as well as control are
such as to justify a demand for more than an assertion of dominion by a mere symbolic act,
and to cause the perfecting of a right of sovereignty to be dependent upon the exercise of some
measure of control...
One yardstick of occupation may be the amount of money expended in the
area by the sovereign power; the trappings of civilization and bureaucracy
are expensive. The Government of Canada spent $4,000 in the Arctic in 1920,
$300,000 in 1924, and $33.2 million in 1959. The far north is administered
from Ottawa with the advice of a Council on which sit elected and appointed
members. The Yukon Territory and the Northwest Territories each elect a
representative to the House of Commons.
The many activities of an advanced society have existed in the north for
decades. The Canadian Government had occasion to catalogue some of these
in 1925. The United States, without preliminary notification to the Canadian
Government, had announced that the MacMillan Expedition (organized by
the National Geographical Society, but with the active assistance of the United
States Navy) planned to fly over and explore Baffin, Ellesmere, Axel Heiberg
uschwarzenbcrger, International Law (3rd ed., 1957), v. 1, p. 298.
77Legal Status of Eastern Greenland [1933] P.C.I.J. ser. A/B, No. 53.
"Reeves, Editorial Comment on: "George V Land" (1934) 28 Am, J. Intl. L. 117, at 119. See
also Hyde, Editorial Comment on "The Case Concerning the Legal Status of Eastern Greenland"
1933) 27 Am. J. Intl. L. 732, at 736-7.
"Lakhtine, "Rights Over the Arctic" (1930) 24 Am. J. Intl. L. 703, at 710.
8 p. cit., supra, note 36, at 348. A 'local condition' factor was recognized in the Convention
between the British Empire, Belgium, France, Italy, Japan, Portugal, and the United States of
America, revising the General Act of Berlin, 26 February 1885, and the General Act and Declaration
of Brussels, 2 July 1890, at Saint-Germain-en-Laye, 10 September 1919. The preamble read in part:
"Considerant que les territoires interesses sont actuellement places sous des autorites reconnues,
qu'ils sont dotes d'institutions administrativcs conformcs aux conditions locales.' ..---(1919) 112
British and Foreign State Papers 901.
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?
No.
and
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-(1919) 112
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No. 33 SOVEREIGNTY IN T HE ARCTIC REGIONS 215
and certain other Arctic islands. Parliament passed an amendment to the
Northwest Territories Act requiring licenses of Arctic scientists and explorers."
Secretary of State Kellog recognized the implication of applying for a license
and asked for further information on the Canadian agencies -temporarily"
in the north. The Canadian reply outlined the location, personnel and per-
manent character of It.C.M.P. posts, and continued:82
In regard to tic duties of members of the Royal Canadian Mounted Police stationed in the
Eastern Arctic, it may he added that all thc Mounted Police Detachments in the Eastern Arctic
arc Post Offices and Customs Ports, and the Non-Commissioned Officers in charge have been
appointed Postmasters and Collectors of Customs. Furthermore, the duties of members of
the Force stationed in the Eastern Arctic include the supervision of the welfare of the Eskimo
for the Department of Indian Affairs, educating them as far as possible in the White Man's
Laws and issuing destitute relief where necessary, enforcement of all the Ordinances and
Regulations of the Northwest Territories, including Game Laws and the protection of Musk
Oxen, and the issue of Game, Animal and Bird Licenses to the various Trading Companies,
the supervision of liquor permits, the enforcement of the Migratory Birds Convention Act
for the Department of the Interior, the enforcement of the Criminal Code and Assistance to
the Post Office and Customs Department as set forth in the last paragraph above, as well as
to the Department of Mines and Agriculture in the collection of Eskimo material and ethno-
logical and biological specimens.
Members of the Force arc also called upon to assist in the taking of the Census and assisting
the Director of Meteorological Service in the taking of readings at the different Posts from
time to time, and to supply topographical information to the Federal Service. In addition,
Police patrols to surrounding settlements and Eskimo villages and also extended patrols to re-
mote points are made by each detachment for the purpose of obtaining the information required.
Hackworth reports that the United States requested licenses."
Military activities and defence installations such as the Distant Early
Warning line have introduced permanent habitation into the Arctic to a degree
thought impossible ten years ago. A Canadian flag now flies over a permanent
establishment at Alert on the northern tip of Ellesmere Island, north of 82?
North latitude." Social security, too, has reached the Arctic. A monthly
task performed wherever Canadians live ? be they Eskimos or newcomers ?
is the distribution of Family Allowance cheques.85
Many publicists have asserted that Canadian activities in the north consti-
tute effective occupation. David Hunter Miller said as early as 1925 that
di
? ? ? while it cannot be asserted that Canada's title to all these islands is legally
perfect under international law, we may say that as to almost all of them it is
not now questioned and that it seems in a? fair way to become complete and
admitted." 86 In 1931, Gustav Smedal said: "A good precedent of how to take
8'16 Geo. V, S.C. 1925, c. 48, sec. 1.
"Foreign Relations of the United .States (1925), v. 2, p. 571-3.
"Hackworth, International Law (1940), v. 1, p. 463.
"Some concern has been expressed in Canada that these manifestations of sovereignty have perhaps
accrued to the benefit of the United States and not to Canada. See, e.g., 1958 Debates, House of Com-
mons, Canada, vol. 4, p. 3652. These fears were allayed by the Minister of National Defence who
told the House of Commons that: "Everywhere you go at all these stations on the D.E.W. line you
now sec the scarlet coat of the Royal Canadian Mounted Police."-1959 Debates, House of Commons,
Canada, vol. 2, p. 1518.
"Robinson, "Family Allowances in the Canadian Arctic" 6 The Polar Record 345 (The Scott
Polar Research Institute, Cambridge University, 1952).
86Supra, note 41, at 53.
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effective possession of polar areas is Canada's handling of the Arctic islands
lying north of its coasts.?" T. E. M. McKitterick said in 1939:88
... the question is not one of jurisdiction over persons and property situate in the territory at
a given moment, but the ability to exercise jurisdiction over persons and property which may
be found there at any time/in the future. For example, at any given moment there are large
tracts of Northern Canada where no persons or property are to be found, yet thc courts of
Canada, possessing as they do the ability to control persons who may resort there, may fairly.
be said to exercise jurisdiction over those areas. If Canada were for any reason incapable of
exercising such jurisdiction, the only conclusion which could be reached would be that she
did not possess a good title to the ownership of these areas.
VI
Canada's claims to territorial sovereignty over the Arctic mainland and the
islands of the archipelago within the Canadian 'sector' have never been chal-
lenged by another state. The two nations most intimately concerned with this
area are, coincidentally, the two most powerful and influential in the world
?the United States and the Soviet Union. Between these two states lies Canada.
The U.S.S.R., having incorporated the sector theory as part of its national
policy, would display inconsistency if it denied the Canadian claim. The
Secretary of State for External Affairs of Canada reported to the House of
Commons in 1959:89
A search of departmental records has failed to disclose any dispute since 1900 between Canada
and either the Union of Soviet Socialist Republics or the United States of America concerning
the ownership of any portion of the Canadian Arctic.
The United States has neither disputed the claim nor made any of its own,
its policy being one of reservation in both the Arctic and the Antarctic." It
has not claimed on the basis of Peary's overland trip to the Pole in 1909 or
Byrd's polar flight in 1926.91 Nor has it advanced a sector claim on the basis
of the Alaskan penetration of the Arctic Circle.
Suggestions have been cast out intermittently that territorial claims in the
Arctic be settled by treaty; the Spitzbergen92 and Antarctic" Treaties have
87Smedal, Acquisition of Sovereignty Over Polar Areas (Oslo, 1931, translation by Meyer), p. 35.
88McKitterick, "The Validity of Territorial and Other Claims in Polar Regions" (1939) 21 J. of
Comparative Legislation and Intl. L. (3rd Series), 89, at 93.
891959 Debates, House of Commons, Canada, vol. 2, p. 1822.
"See, e.g., Hackworth, International Law (1940), v. 1, p. 399-459.
"With respect to claims made as a result of flights over an area, Smcdal writes: "When Admiral
Byrd had at the beginning of 1929 made his first flights in Antarctica and had discovered new land,
the title of the United States to the new discovered territories was under discussion. A Scotch
newspaper then stated with much justification that the merits of Admiral Byrd were limited to the
fact that he had seen the new lands. 'He has seen them,' it was stated, as we have all seen the
moon. "?Smedal, Acquisition of Sovereignty Over Polar Areas (Oslo, 1931, translation by Meyer), p. 52.
92Treaty Regulating the Status of Spitzbergen, 2 L.N.T.S. 7; United States T.S. 686; Canada Treaty
Series (1947), No. 20.
?Treaty on the Antarctica, signed 1 December 1959, between Argentina, Australia, Belgium,
Chile, the French Republic, Japan, New Zealand, Norway, the Union of South Africa, the Union
of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the
United States of America; British Treaty Series (1961), No. 97; United States Treaties and Other Inter-
national Agreements Series, No. 4780.
4
A
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been uri
requirini
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been urged as precedents. These proposals usually fail to define the claims
requiring settlement, or to acknowledge that the treaties cited expressly reserve
the question of sovereignty ? in the first case in favour of Norway, and in
the second case by declaring a moratorium. Philip C. Jessup wrote in 1947:94
Should it bccomc apparent that the resources of Antarctica or its air-strategical potentialities
are of great importance, it will no doubt become necessary to settle the conflicting claims to
sovereignty. Any decision in regard to that area would obviously be a powerful precedent for
the settlement of comparable claims in the Arctic despite the physical differences between
the two areas. It is possible that the matter could be adjusted by a conference such as that
which produced the Berlin Act of 1885 concerning Africa.
In 1938 Taracouzio urged that ". . . the convocation of an international
conference appears not only a logical way conclusively to determine the legal
status of the Arctic, but also an urgent necessity, if good will among the states
is to be preserved."" He suggested a modified sector theory, with application
to land but not to ice, water or airspace.
Professor Svarlein resurrected Taracouzio's proposition in 1958 before the
American Society of International Law." A suggestion that the United States,
the Soviet Union and Canada waive their claim to the airspace above their
Arctic territories may have been worthy of consideration in 1939 ? but surely
not in the D.E.W. line era of 1958. Svarlein argued that a recognition of the
sector principle for territorial apportionment of land areas, but-inot for water,
ice or airspace (even over land), would be an acceptable compromise between the
sector principle and the principle of effective occupation. He did not reveal
what compromise was involved in surrendering airspace above the land areas ?
territory which he later admitted to be part of the ". . . status quo . . . within
the region."?7 Control of the airspace rests in the sovereign of the subjacent
land; it is unrealistic to suggest that any Arctic state will surrender such
rights in the absence of a substantial quid pro quo.
Any national challenge to Canada's claim would take the form of a declara-
tion of non-recognition, or of a competitive claim. The latter is difficult to
envisage. Even in the unlikely event that the Canadian title could be shown
not to satisfy objective standards, no other state could make a better claim.
In those circumstances, Canada's title ? even if not 'good', would certainly
be 'better'. The Permanent Court of International Justice dealt with this issue
in the case of the Legal Status of Eastern Greenland. The Court said :98
Another circumstance which must be taken into account by any tribunal which has to ad-
judicate upon a claim to sovereignty over a particular territory, is the extent to which the
sovereignty is also claimed by some other Power. In most of the cases involving claims to
"Jessup, "Sovereignty in Antarctica? (1947) 41 Am. J. Intl. L. 117, at 119.
"Taracouzio, Soviets in the Arctic (1938), p. 366.
96Svarlein, "The Legal Status of the Arctic" (1958) 52 Proceedings of the Am. Soc.y. of Intl. L.
136, at 143. Professor Svarlein does not say that his proposal for a 'compromise' convention is basically
the same as that of Taracouzio; the two appear to be identical, however.
"Mid., at 142.
98SUpra, note 77, at 46.
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218 McGILL LAW JOURNAL
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territorial sovereignty which have come before an international tribunal, there have been
two competing claims to the sovereignty, and the tribunal has had to decide which of the
two is the stronger . . . It is impossible to read the rccords of the decisions in cases as to terri-
torial sovereignty without observing that in many cases the tribunal has been satisfied with
very little in the way of the actual exercise of sovereign rights, provided that the other State
could not make out a superior claim. This is particularly true in the case of claims to sovereignty
over areas in thinly populated or unsettled countries.
In the same vein, Schwarzenberger says:"
(courts) . . . are not primarily concerned with the elaboration of the general rules governing
title to territory, and their operative scope in relation to third States, but with the relative
superiority of the evidence produced by the parties.
The International Court of Justice heard conflicting claims to territorial
sovereignty in the Minguiers and Ecrehos case (France/United Kingdom).loo
The judgment read, in part:"'
Of the manifold acts invoked by the United Kingdom Government, the Court attaches, in
particular, probative value to the acts which relate to the exercise of jurisdiction and local
administration and to legislation.
Among the "acts" to which the Court referred were: criminal judicial
proceedings, inquests, tax assessments, fishing licenses, public registry of deeds,
customs, census, and construction of such public works as shipways and buoys.
Canadian activities in the Arctic are easily as extensive.
VII
The archipelago lying to the north of the Canadian mainland is well--
defined geographically; it is orderly in the sense that its outer limits are un-
broken by vagrant islands lying far-distant from the regular and symmetrical
shape of the whole. The archipelago forms a natural extension of the continent
and shares with it a common continental shelf. It does not lie astride any
shipping routes. Canada regards the water between the islands as Canadian
territorial waters, and this claim has been recogtzsstly the United States.
Prime Minister St. Laurent reported to the House of Commons in 1957 that
United States vessels servicing D.E.W. line stations are required to apply to
Canada for waivers of the provisions of the Canada Shipping Act'?2 before
proceeding."3
The unitary appearance of the formation and, to a lesser extent, its location
suggest support to a claim to these waters as internal waters. Surrounded on
all sides by Canadian territory, they possess the character of Canadian waters.
It is 1L..ighy.L......mlil_ssly_LhE_Erlil_iterrtapted surface plIa.ge from the Labrador Sea
to either the ArcticQcean or the Beaufort Sea, or vice versa, will ever be a reality.
_
Future demands for the right of innocent passage through the archipelago are
speculative to a degree.
"Op. cit., supra, note 76, at 290.
100The Minquiers and Ecrebos case (France/United Kingdom) [19531 I.C.J. Reports 47.
"'Ibid., at 63.
102R.S.C. 1952, c. 29.
1031937 Debates, House of Commons, Canada, vol. 3, p. 3186.
L
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avel been
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ago are
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No. 3] SOVEREIGNTY IN THE ARCTIC REGIONS 219
The widths of some of the straits and entrances in the archipelago are wider
'than those limits ordinarily accepted by .law for territorial waters, hut their
iemoteness reduces the interest of the international community. Even the
academic controversy over the status of Hudson Bay ? lively at one time'" ?
is, now stilled. The passage of time enures to the benefit of the Canadian \claim.
Only two other groups of islands bear even a superficial resemblai\ce to
the Arctic archipelago. These are Indonesia and the Philippines. Two material
distinctions exist, however. Neither of these archipelagos forms a natural
extension of a continent, nor does either form a cohesive unit of relatively
land-enclosed dimensionS.\ The islands are distributed across a vast expanse of
water in the form of an Indonesian chain, and in a formless Philippine scattering.
Again, both groups are located on world shipping routes. Emphasis is given
to these distinctions by the overlapping of present Indonesian and Philippine
territorial water claims. Far from displaying a distinctive national character;
some waters in this area are subject to conflicting claims.
Baselines surrounding the archipelago, as provided for by Canadian law,'"
do not necessarily offend against the provisions of the Convention on the Terri-
torial Sea and the Contiguous Zone" or against the principles laid down by
the International Court of Justice in the Norwegian Fisheries case.'" The three
? considerations of relevance to a court were enumerated in the Fisheries case:'"
... some reference must be made to the close dependence of the territorial sea upon the land
domain. It is the land which confers upon the coastal State a right to the waters off its coasts.
It follows that while such a State must be allowed the latitude necessary in order to be able
to adapt its delimitation to practical needs and local requirements, the drawing of baselines
must not depart to any appreciable extent from the general direction of the coast.
Another fundamental consideration . . . is the more or less close relationship existing between
certain sea areas and the land formations which divide or surround them. The real question
raised in the choice of baselines is in effect whether certain sea areas lying within these lines
are sufficiently closely linked to the land domain to be subject to the regime of inland waters...
Finally, there is one consideration not to be overlooked, the scope of which extends beyond
purely geographical factors: that of certain economic interests peculiar to a region, the reality
and importance of which are clearly evidenced by a long usage.
An application of these three considerations to the waters of the Arctic
archipelago may well lead to a conclusion in favour of Canadian base lines
'?45ee e.g., Hackworth, International Law (1940), v. 1, p. 700-701; Balch, "Is Hudson Bay a Closed
or an Open Sea?" (1912) 6 Am. J. Intl. L. 409; 'The Hudsonian Sea is a Great Open Sea" (1913)
7 Am. J. Int'l, L. 546; Johnston, "Canada's Claim to Hudson Bay and Hudson Strait" (1934) 15
British Y.B. Intl. L. 1.
'?5The Coastal Fisheries Protection Act, 1-2 Eliz. II, S.C. 1952-53, c. 15, sec. 2(b): ". ..designated
by any Act of the Parliament of Canada or by the Governor in Council as the territorial waters of
Canada, or any waters not so designated being within three marine miles of any of the coasts, bays,
creeks, or harbours of Canada, and includes the inland waters of Canada." The Canada Customs
Act, R.S.C. 1952, c. 58, sec. 2(1) (b): ". . . all territorial waters of Canada and all waters forming
part of the territory of Canada, including the marginal sea within three marine miles of the base
lines on the coast of Canada, determined in accordance with international law and practice. . ."
"6U.N. Doc. A/CONF. 13/L.52, 28 April 1938.
"7Fisberiet case (United Kingdom v. Norway) [1951] I.C.J. Reports 115.
108Ibid., at 133.
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circumscribing the entire archipelago. Unquestionably, cor siderations one
and two are opposed to each other. Weighing these two geographical factors,
it may be argued reasonably that the second is of the greater importance in the
Canadian Arctic. The map certainly suggests that the channels are more
closely linked with the land than are bodies of water that do no more than
form a coast line, no matter how rugged and indented that coast might be.
These archipelago waters give the appearance of forming part of the territory.
The third consideration, if not of great assistance to a Canadian claim, is not
destructive. No economic tie in the form of fishing grounds ties these waters
to the islands, but the channels do form the only sea routes through the islands
and in that respect form lines of communication among them. As observed
earlier, these channels do not form part of any sea routes followed by any
maritime states, and it is not likely that they ever will. The hazards of naviga-
tion and the remoteness of the archipelago therefore appear to prevent any
other state from acquiring any sort of economic interest in these waters. Usage
has not existed for nearly as long as was the case off Norway, but such sovereign
demands as Canada evidently makes upon foreign vessels plying these waters
does indicate that a usage exists.
Prime Minister St. Laurent told the House of Commons in 1956 that the
Fisheries case ". . . has set a principle which we think should be applicable to
our own shores. We think the conditions are such that the decision that was
there rendered would apply to many parts of the Canadian shores. . . "109
VIII
The fascination which attracts international lawyers again and again to
Arctic territorial discussions is in large part accounted for by ice. Only in the
polar areas does ice exist in sufficient quantities and with sufficient stability
to support permanent structures. This permits ice to be employed as land, and
contrasted with water. Is ice able to support a national territorial claim in
areas which would, under less severe climatic conditions, be open sea? Sector
claims are not selective; the quality of the surface is immaterial. It may be
land, ice or water.
A vast area of the Arctic Ocean is covered with a permanent, but migratory,
polar ice pack. The dimensions of the pack vary little from year to year, and
its edges are often defined on maps. On this ice are buildings and airstrips.
But not all Arctic ice is stable. Taracouzio writes:"?
... ice in the Arctic may be divided into three types: fast, or coastal ice which freezes during
the winter in fjords and bays and along the coast, and melts in the summer; the Arctic Pack,
1091956 Debates, House of Commons, Canada, vol. 7, p. 6702. For a discussion of the political
aspects of the archipelago and the application of the Fisheries case, see Cohen, "Polar Ice and Arctic
Sovereignty," Saturday Night, 30 August 1958, p. 12 (Toronto).
1500p. cit., supra, note 95, at 352. The extract quoted from Transche is found in "The Ice Cover of
the Arctic Sea with a Genetic Classification of Sea Ice," at Problems of Polar Research, 92 (American
Geographic Society).
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and the p
is given b
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[Vol. 9
:ions one
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he political
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Ice Cover of
(American
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No. 3] SOVEREIGNTY IN THE ARCTIC REGIONS
22.1
and the pack or drift ice formed between the other two. The volume of each of these varieties
is given by the Russian oceanographer Transehe: 'The main mass that fills the central and largest
part of the Arctic Sea constitutes the Arctic Pack. It occupies about 70 per cent, of the whole
conventional area of the Arctic Sea. The two other classes occupy concentric belts around
the Arctic Pack ? the fast ice, the outer belt, and the pack ice, the belt between the fast ice
and the Arctic Pack. The pack ice in winter occupies about 25 per cent, of the conventional
area of the Arctic Sea, and the fast ice about 5 per cent.'
It is the Arctic pack which invites an analogy to land, and which is often
distinguished from other sea areas which cannot be reduced into. possession.
Balch sketches this distinction:'
... if the North Polar Sea were open there would be no question of its being as free as any
part of the broad Atlantic and Pacific Oceans. The North Polar Sea, however, is covered with
ice. Ice, unlike the water of the high seas, is a solid substance upon which mankind can build
habitations and live for an indefinite period of time. Thus during the Russo-Japanese War,
the Russians built during the winter seasons a railroad on the ice over Lake Baikal and estab-
lished a station midway across the frozen lake. And over that piece of railroad they forwarded
many thousands of men and great quantities of stores and implements of war. In that sense
it might be urged that men might permanently occupy the ice cover of the Polar Sea.
It is the solid property of ice, permitting occupation, which is emphasized
by the Soviet writers Lakhtinel" and Sigrist."3 Sigrist has written:114
We refuse to admit any legal difference between frozen land and immobile ice; indeed, trans-
portation is just as possible over such ice as it is over land which is frozen and covered with
snow. If on the ice one may encounter open water, polyn'ias, and other obstacles, one may
also encounter ditches, ravines, and rivers on land. . . .
The 'ice-is-water' school recognizes that ice may be occupied but contends
that such occupation is temporary, and somewhat mobile. Balch has pointed
out the general easterly drift of the ice pack and claims that occupation ". . .
would be too precarious and shifting to and fro to give anyone a good title.'I"
A Canadian writer, Clute, took the same position. He found ". . . it is sur-
prising that it should have been so much as suggested. ."116 that the ice
surface could be reduced into possession, because the ice forms part of a navigable
body of water. To prove that the Arctic Ocean is navigable, Clute pointed to
the passage across the north polar basin of the Fram with the Norwegian
explorer Nansen."7 Nansen required three years ? 1893 to 1896 ? to "navi-
gate" this distance. Taracouzio questions the fate of a settlement, such as a
Soviet meteorological station, built on the ice pack should it break off and
drift away. He asks whether this floe should be regarded as a piece of Soviet
soil, a merchant vessel flying the Soviet flag, a Soviet warship, or as a vessel
in distress."" Working in the opposite direction, Taracouzio asks if legally
'Balch, "The Arctic and Antarctic Regions and the Law of Nations" (1910) 4 Am. J. Intl. L.
265, at 265-6.
"Supra, note 79, at 712.
? 1"Sigrist, "Soviet Law in the Arctic" (1928) 4 Robochii Sud 986.
'"Taracouzio, op. cit., supra, note 95, at 349.
115Supra, note 111, at 266.
litClute, "The Ownership of the North Pole" (1927) 5 Canadian Bar Rev. 19, at 20.
117/bid., at 21.
"Taracouzio, op. cit., supra, note 95, at 358-9.
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222 McGILL LAW JOURNAL
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moving vessels arc transformed by nature into violators of Soviet territory if
they become frozen into the Soviet sector of the permanent ice pack."9
Hyde was cognizant of the mobility of ice:'2"
It is not apparent why the substance of which an area is composed, however subject to dctcrio- ?
ration or ultimate dissolution, or the absence of proof that it remains an immovable mass,
renders it unreasonable for states to deal with it as though it were land, to the extent at least
of asserting and gaining respect for exclusive rights of control or dominion therein.
? Those, like Clute, who insist
law of occupation, often distort
\ There are three basic arguments
that ic is water and therefore incapable in
the lOgic of the freedom of the open sea.
in favOur of the freedom of the high seas:
(a) The sea is incapable of being possessed because it is elusive and evades
possession.
The open sea is in its own nature not to be possessed, nobody being able to settle there so as to
hinder others from passing.
? Vattelifi
The Ocean or open Sea is by Nature not capable of being reduced into the Possession of a
Nation, since no permanent settlement can be formed upon its ever changing surface; neither
is it capable of being brought under the Empire of a Nation, as no armed fleet can effectively
occupy it in its full extent, so as to preclude other Nations altogether from the uSe of it.
Nature herself has in these respects set limits to human enterprise and human ambitio?1\.
? Twiss'n \,
(b) It is inconsistent that the inexhaustible resources of the sea be possessed
by a single nation.
\
It is manifest that the use of the open sea, which consists in navigation and fishing, is innocent
and inexhaustible; that is, he who navigates or fishes in it, does no injury to anyone, and
that the sea, in these two respects, is sufficient for all mankind.
? Vaud'23
The real reason for the freedom of the open sea is . . the freedom of communication, and
especially commerce, between the States which arc severed by the sea.
? Oppenheim124
(c) The sea is not susceptible of possession because it has no definite
boundaries.
There is a natural reason which forbids that the sea . . . should become a private possession.
The reason is that occupation takes place only in the case of a thing which has definite limits
. . . Liquids . . . cannot be taken possession of unless they are contained in something else;
119/bid., at 356-7. Taracouzio's 1938 hypothetical Soviet `island' case actually
when a Soviet scientific station, "North Pole 7", floated 1,200 miles from the
point off the cast coast of Baffin Island. See the N.Y. Times (Paris cd.), 6 Nov.
States plans to freeze a ship in the Arctic ice to serve as a floating research labora
1893 voyage of the Frain and Taracouzio's second case. See the N.Y. Times (Paris
125Hyde, "Acquisition of Sovereignty Over Polar Areas" (1933-34) 19 Iowa L
InVattcl, Law of Nations (1760), v. 1, p. 8, para. 280.
127wiss, The Law of Nations (2nd. ed., 1884), p. 284.
1230p. cit., supra, note 121 at 8, para. 281.
moppenheim, International Law (8th ed., Lauterpacht, 1955), v. 1, p. 593-4.
occurred in 1960-1
Soviet sector to a
1961. The United
tory, recalling the
ed.), 20 Oct. 1961.
. Rev. 286, at 288.
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No. 3]
as be
becat;
Ice is
a liquid
the liqui
settled u
is little
prompte,
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Civil Avia
126Sce C
(1952-55)
[Vol. 9
:erritory if
.119
ct to deterio-
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. The United
recalling the
20 Oct. 1961.
286, at 288.
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No. 3] SOVEREIGNTY IN THE ARCTIC REGIONS 223
as being thus contained, lakes and ponds have been taken possession of, and likewise rivers,
.because they arc restrained by banks. But the sea is not contained by the land...
? Grotius'25
Ice is not merely a form of water; it is a solid substance. Laws evolved for
a liquid (and. the above arguments in favour of freedom of the seas all rest on
the liquid quality of the sea) do not necessarily apply to a solid. Ice can be
settled upon; ice is a barrier to navigation; ice possesses defined limits. There
is little about ice to invite a comparison with watery These distinctions
prompted Hyde to say;u6
It is not apparent why the character of the substance which constitutes the habitual surface
above that level (i.e. of the sea) or its lack of permanent connection with what is immovable,
should necessarily be decisive of the susceptibility to a claim of sovereignty of the area con-
cerned. This should be obvious in situations where the particular area is possessed of a surface
sufficiently solid to enable man to pursue his occupations thereon and which also in conse-
quence of its solidity and permanence constitutes in itself a barrier to navigation as it is nor-
mally enjoyed in the open sea.
Canadian claims to the waters of the archipelago are supported by the
oft-frozen state of those waters. In that remote, unusual part of the world,
the community of nations may well choose to note not only the peculiar forma-
tion of the archipelago which lends such a Canadian character to the waters,
but to take heed as well of the solid state which those waters usually assume.
This combination leaves little basis for objections from other states to a
Canadian claim to the waters as internal waters.
The Soviet Union is the only state which appears to claim sovereignty over
the polar ice pack. A vital flaw in any claim to ice is the inability of the
claimant state to control the airspace above and the water below. The terri-
torial integrity cannot be maintained. This is significant in the mid-twentieth
century when the sector theory becomes three dimensional in concept. Arctic
skies and Arctic waters are the medium for air and submarine traffic. Should
the polar ice pack attract the character of one state, then presumably the
superjacent airspace acquires the same national character.'27 So does the
subjacent, unfrozen water. (Quaere, can one say cujus est solum ejus est usque ad
coelum et ad inferos'28 in circumstances where there is no solum, but instead
mare concretum?) Many states may well claim an interest in the skies above or
the waters below the pack ? an interest in innocent passage which does not
exist over or within the waters Of the archipelago for one cannot fly over the
archipelago waters without penetrating the national airspace over Canadian
soil, nor will submarines wish often to penetrate the archipelago on an unin-
terrupted passage.
"5Grotius, "De Jure Belli ac Pacis" (1646 ed.) in The Classics of International Law Edition (Oxford),
at p. 190. ,
126Hyde, International Law (2nd. ed., 1945), v. 1, p. 348.
127Convention on International Civil Aviation; Appendix II to the Final Act of the International
Civil Aviation Conference; T.I.A.S. No. 1591, Canada Treaty Series (1944), No. 36.
128SCC Cooper, "Roman Law and the Maxim "Cujus est Solum" in International Air Law"
(1952-55) 1 McGill L.J. 23.
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t
I
1
.; r.
?
,
I 15
,
1
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224 McGILL LAW JOURNAL
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Claimants of the polar pack face a further difficulty. If the surface is pos-
sessed, then it follows that the air is also possessed. But the chief means of
exercising jurisdiction over the surface of the Arctic is by means of aerial
travel. It may be said that in the far north the surface assumes its national
character from the air upon which it relies for support and control.'29 In these
circumstances, do aerial incursions into a foreign sector amount merely to
violations of the territorial integrity, or are they more serious derogations of
sovereignty ? challenges to the title of the claimant state?
Professor John Cobb Cooper asserts flatly that the polar pack of the Arctic
Ocean is not subject to occupation, nor is the sky above it:"?
While it may be contended that.under modern aviation conditions such ice-covered seas can
be controlled from the air and thus occupied, the same thing can be said of the open seas.
But without question an attempt by a single State in time of peace to seize any part of the
high seas or the airspace above and to maintain exclusive control in such areas would be an
act of aggression against all other States. No more reason or excuse exists to admit that ice-
covered seas and the airspace above them may bc seized by a single State and all othcr States
thereby excluded, than to admit that the open seas and the airspace above them may legally
be similarly seized and held.
An innocent motive may be attributed to the occasional incursion into the
airspace by civilian aircraft, but none whatsoever by foreign submarines, for
naval vessels require previous permission to navigate territorial waters.'31
There is no evidence that United States or British submarines seek permission
or give notice when navigating below the Arctic ice pack.
Modern scientific achievement compounds the difficulties facing those
states who seek title to the polar pack.
IX
Territorial sovereignty is a compound of several factors, involving both
rights and responsibilities. The sovereign has the authority to rule over the
territory and the persons and objects within it. Within the territory the
sovereign exercises legislative powers, dispenses justice, and administers the
manifold activities of the modern state. The sovereign has the right to control
access to the territory and to oppose the exercise therein of the authority of
foreign states, both rights being subject to the principles of international law.
The sovereign bears the obligation of protecting within the territory the
rights of foreign states and the interests of their citizens. The exercise of
these state activ. ities not only accrues lawfully to the territorial sovereign, but
the manifestation of them is indicative of who is the sovereign. A claim to terri-
torial sovereignty, if not accompanied by such a manifestation, falls below
i"Taracouzio quotes the Soviet jurist Korovin as saying: ". . . regular visits by Coast guard air
forces should be considered sufficient to establish this 'permanency' of occupation." At op. cit.,
supra, note 95, at 340.
"?Cooper, "Airspace Rights Over the Arctic" (1950) 3 Air Affairs 517, at 537 (Washington).
"In these respects see: Anderson and Blair, Nautilus 90 North (1959), pp. 9-10.
No. 3]
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[Vol,./9
.ce /loos-
mela n s of
of aerial
; national
' In these
nerely to
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No. 3] SOVEREIGNTY IN THE ARCTIC REGIONS 225
the present international standard and will fail if challenged by a state which
can point to a superior claim.
All states, in the course of their history, found their territorial claims on
various grounds: on discovery, on intended possession, on constructive pos-
session, on actual possession. The list is not necessarily progressive; the grounds
may be regarded as accumulative and even complementary. States seek to
found their claims to title on as broad a basis as possible, and to include as
many of these factors as they are able. This collection of diversified claims to
title is recognized in international law and is called "historical consolidation."
The term represents the gradual perfection of title which, at the outset, lacked
certain necessary fundamentals. Schwarzenberger speaks of this consolidation
process in the following terms :132
Seen in . . . historical perspective, the consolidation of territorial titles appears in its proper
context of the evolution and expansion of international society. Then, three essential features
of this phenomenon become apparent. First, consolidation of title is normally a gradual process.
Secondly, in the beginning, every title is necessarily a relative title, and its holder aspires to
transform it into an absolute title. Thirdly, the more absolute a title becomes, the more it
rests on multiple foundations. Its constituent elements may be as varied as the devices which,
at any time, international law makes available for the purpose of making such a title valid
against third States.
It was a historical consolidation upon which Norway relied in the Fisheries
case. It is upon a similar consolidation, but extending over a shorter period of
time, that Canada relies with respect to her territorial claims in the Arctic.
Discovery, exercise of jurisdiction, settlement, exclusion of foreign states ?
these arc the various acts to which Canada points. As the years pass and as
the occupation becomes more effective, always in the absence of any foreign
claim, the title assumes those characteristics of continuity and peaceful lack of
disturbance which international law requires to be present in a valid territorial
claim. Just as is the case with the law of prescription, no definite rule can be
established with respect to the length of time which must pass in order to
validate a title. As Oppenheim has said (speaking of prescriptive title):'"
"The question at what time and in what circumstances such a condition of
things arises, is not one of law, but of fact."
It is suggested that time and circumstances both favour Canada in the
Arctic. No challenge of any merit has been made against Canadian claims
since at least 1900. The circumstances of geography, terrain and climate which
exist in the Arctic are losing their deterrent power as Canadian occupation
becomes ever more effective. Nations recognize that inflexibility is not a
desirable attribute in international law any more than it is in municipal law;
therefore "effective occupation" does not bear the same absolute interpretation
in polar areas as it does in temperate zones. The standard is constant but its
luSchwarzenberger, International Law (3rd ed., 1957), v. 1, p. 292. See also on the same point,
Johnson, "Consolidation as a Root of Title in International Law" [1955] Cambridge L.J. 215.
1330p cit., supra, note 124, at 577.
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application is relative according to the circumstances. Canada. appears to
meet the standards.
From the first voyages of discovery in the fifteenth century, to the distribu-
tion of Family Allowance cheques in the twentieth century, Arctic North
America has, for 450 years, progressively become The Canadian Arctic.
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