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Inuit and the Ice: Implications for Canadian Arctic Waters

Published online by Cambridge University Press:  09 March 2016

David Vanderzwaag  and
Donat Pharand
David Vanderzwaag
Affiliation:
Dalhousie Ocean Studies Programme; Dalhousie Faculty of Law
Donat Pharand
Affiliation:
University of Ottawa, Faculty of Law
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 21 , 1984 , pp. 53 - 84
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1984

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References

1 The United States District Court for the District of Alaska rejected the Inupiat claim for offshore rights and awarded the defendants (the United States, Alaska, and various oil companies) judgment on the pleadings. Inupiat Community of Arctic Slope v. United States, 548 F. Supp. 182 (D. Alaska 1982).

2 For a summary of the various land claims, see Proceedings of the Special Committee of the Senate on the Northern Pipeline, ist Sess., 32nd Parliament, Issue No. 37, Appendix “37-B” (Brief from the Department of Indian Affairs and Northern Development on Comprehensive Native Claims, Sept. 1982).

3 At the request of Inuit Tapirisat of Canada and supported by the Canadian Arctic Resources Committee (CARC), McGill University’s Centre for Northern Studies and Research held a workshop in Apr. 1982 to discuss the use of sea ice. Six papers — “Biological Aspects of Arctic Ice in Relation to Inuit Use” (Professor Max Dunbar), “Archaeological Evidence for Ancient Use of the Sea Ice” (Dr. George Wenzel), “Historical Evidence for Inuit Use of the Sea Ice (Dr. Alan Cooke), “Present-Day Evidence for Inuit Use of the Sea Ice” (Dr. Milton Freeman), “Legal Status of the Canadian Arctic Waters” (Professor Donat Pharand), and “Impact of Inuit Rights on Arctic Waters” (Marc Denhez) —have been co-published by McGill and CARC under the title, Sikumiat: The People Who Use the Sea Ice (1983).

4 The National Energy Board, which began public hearings into the Arctic Pilot Project on Feb. 2, 1982 and adjourned the hearings on Aug. 31, 1982, directed the project sponsors to submit their views concerning continuance or discontinuance of APP hearings by Dec. 1, 1983. National Energy Board, News Release (June 10, 1983).

5 The proponents, presently seeking approval from an Environmental Assessment Review Panel, have also included the options of overland oil and gas pipelines. See Dome Petroleum Ltd., Esso Resources Canada Ltd., and Gulf Canada Resources Inc., Beaufort Sea-Mackenzie Delta Environmental Impact Statement: Volume 2, Development Systems 6.1–6.16 (1982).

6 Mills, H., “Environment and Renewable Resources,” in Lamson, C. and VanderZwaag, D. (eds.), Transit Management in the Northwest Passage: Problems and Prospects (1984).Google Scholar

7 Inuit claims to offshore rights under national law would involve analogizing arguments as to aboriginal rights over land territory. For such an analogizing effort, see P. Jull and N. Bankes, “Inuit Interests in the Arctic Offshore” (paper presented at the Third National Workshop on People, Resources and the Environment North of 60° sponsored by Canadian Arctic Resources Committee, June 1983). For a comprehensive treatment of Inuit territorial rights, see Lester, G., The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (Doctor of Jurisprudence dissertation, York University, May 1981).Google Scholar

Inuit claims to offshore rights under international law would involve creative adaptation of human rights and state responsibility doctrines. For the seeds of international law arguments, see Bennett, G., Aboriginal Rights in International Law (1978),Google Scholar Bennett, , “The Developing Law of Aboriginal Rights,” 22 Int’l Comm. of Jurists Rev. 37 (June 1979)Google Scholar and Green, , “Aboriginal Peoples, International Law and the Canadian Charter of Rights and Freedoms,” 61 Can. Bar Rev. 339 (1984).Google Scholar

8 The sector theory would grant nations bordering the Arctic complete jurisdiction over all territory — land, water, and ice — lying to their north. Wedges of jurisdiction would be defined by meridians of longitude extending from the North Pole down to the most easterly and westerly points on the Arctic Circle pierced by each state. The validity of the sector theory is exceedingly doubtful both in state practice and in the opinion of jurists. For an extensive discussion of the theory, see Pharand, D., The Waters of the Canadian Arctic Archipelago in International Law (1984).Google Scholar

9 The historic waters doctrine, the maritime analogue of the territorial doctrine of prescription, would bestow internal waters status (total jurisdictional control by the coastal state) over marine areas over which a country has exercised authority for a lengthy and continuous period of time with the acquiescence of other states. Since Canada shows a long history of state authority over Arctic waters — licensing of early whalers, carrying out RCMP patrols, and regulating non-native hunting (Arctic Islands Game Preserve [P.C. 1146, July 19, 1926]) — the doctrine holds potential merit. For a general discussion of the historic waters doctrine, see Pharand, D., “Historic Waters in International Law, with Special Reference to the Arctic,” 21 Univ. of Toronto L.J. 1 (1971).CrossRefGoogle Scholar For a description of early Canadian legislation applicable to the Arctic, see Hunt, C., “The Development and Decline of Northern Conservation Reserves,” Vol. 8, No. 4 Contact 30 (Nov. 1976)Google Scholar and Cumming, and Aalto, , “Inuit Hunting Rights in the Northwest Territories,” 38 Sask. L. Rev. 251 (1974).Google Scholar

10 Art. 234, which allows coastal states to impose stringent controls on vessels scientific evidence. (U.N. Doc. A/CONF. 62/122, Oct. 7, 1982) Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence. (U.N. Doc./A/CONF. 62/122, Oct. 7, 1982)

Since the language “due regard to navigation” may be interpreted as preventing a coastal state from altogether prohibiting tanker traffic or restricting the number of transits in Arctic waters, Canada might wish to claim greater jurisdictional control through other doctrines. For discussions of the scope of Art. 234, see McRae, and Goundrey, , “Environmental Jurisdiction in Arctic Waters: The Extent of Article 234,” 16 B.C.L. Rev. 197 (1982)Google Scholar and Pharand, , “The Northwest Passage in International Law” (1979), 17 Canadian Yearbook of International Law 99, 120–24.Google Scholar

11 For a comprehensive description of legislation governing the four zones, see VanderZwaag, D. and Lamson, C., “Northern Decision-Making: A Drifting Net in a Restless Sea” in Lamson, C. and VanderZwaag, D. (eds.), op. cit. supra note 6.CrossRefGoogle Scholar

12 R.S.C. 1970, c. T-7.

13 Fishing Zones of Canada (Zone 6) Order, C.R.C. 1978, Vol. XVII, c. 1549.

14 S.C. 1980-81-82-83, c. 81.

15 Ibid., sec. 2 (1).

16 R.S.C. 1970, c. S-9.

17 Oil Pollution Prevention Regulations, C.R.C. 1978, Vol. XVI, c. 1454.

18 Pollutant Substances Regulations, C.R.C. 1978, Vol. XVII, c. 1458, sec. 4, Schedule I, as amended by S.O.R. — 83–347.

19 R.S.C. 1970, c. 2 (1st Supp.).

20 Arctic waters are defined to include a 100-mile zone adjacent to the mainland and Arctic islands and to include natural resource exploration or exploitation activities beyond the 100-mile zone so far as allowed by international law; ibid., sec. 3.

21 Waste disposals on the mainland or islands are prohibited where the wastes may enter Arctic waters ; ibid., sec. 4(1).

22 Arctic Waters Pollution Prevention Regulations, C.R.C. 1978, Vol. Ill, c. 354, sec. 6.

23 R.S.C. 1970, c. 2 (1st Supp.), sec. 4(1).

24 Arctic Shipping Pollution Prevention Regulations, C.R.C. 1978, Vol. III, c. 353, sec. 28.

25 Ibid., sec. 29.

26 Shipping Safety Control Zones Order, C.R.C. 1978, Vol. III, c. 356.

27 Arctic Shipping Pollution Prevention Regulations, C.R.C. 1978, Vol. III, c. 353, Schedule VIII as amended by SOR/79-152, Schedule H.

28 R.S.C. 1970, c. 2 (1st Supp.), sec. 15(3) (a).

29 Ibid., sec. 15(3) (b) (i) (ii).

30 Ibid., sec. 15(3) (b) (iii).

31 Arctic Shipping Pollution Prevention Regulations, C.R.C. 1978, Vol. III, c. 353, sec. 7(1) (a) (b).

32 Ibid., sec. 7(1) (c) (d).

33 Ibid., sec. 7(i)(c)(f).

34 Ibid., sec. 9.

35 Ibid., sec. 21.

36 Ibid., sec. 26.

37 R.S.C. 1970, c. 45 (1st Supp.), sec. 1.

38 Proceedings of the Standing Committee on Indian Affairs and Northern Development, 2nd Sess., 28th Parliament, Issue No. 1 at 6 (Dec. 16, 1969).

39 Proceedings and Evidence of the Standing Committee on External Affairs and National Defence, 1st Sess., 30th Parliament, Issue No. 24 at 6 (May 22, 1975) (emphasis added).

40 U.N. Doc. A/CONF. 62/122 (Oct. 7, 1982).

41 Straight baselines may also be drawn across the mouths of rivers and bays. Idem at Art. 9 (Mouths of Rivers) and Art. 10 (Bays). This article limits consideration to the larger issue of enclosing all the waters of the Canadian Archipelago with straight baselines.

42 No right to innocent passage of foreign vessels would apply to such internal waters if the Anglo-Norwegian Fisheries case, wherein the International Court of Justice ruled on the validity of Norway’s straight baselines, is held to be indicative of customary international law. See the Fisheries case judgment of Dec. 18 [1951] I.C.J. Rep. 116, 142. According to the Territorial Sea and Contiguous Zone Convention of 1958 and the Convention on the Law of the Sea, innocent passage would apply unless the newly enclosed waters were considered historic waters. Art. 8 of the Convention on the Law of the Sea provides: “Where the establishment of a straight baseline … has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in these waters.” U.N. Doc. A/CONF. 62/122 (Oct. 7, 1982).

43 Straight baselines may also have to meet a third requirement, namely, they may not follow low tide elevations devoid of lighthouses or other manmade installations. Although not a criterion formulated by the Court in the Fisheries case, the criterion was inserted into the Territorial Sea and the Contiguous Zone Convention of 1958 (Art. 4, para. 3) and also included in the Convention on the Law of the Sea: “Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition.” U.N. Doc. A/CONF. 62/123 (Oct. 7, 1982) (Art. 7, para. 4).

44 The two criteria are also required by the Territorial Sea and the Contiguous Zone Convention (Art. 4, para. 2) which codified the language used by the International Court of Justice in the Fisheries case, [1951] I.J.C. Rep. 116, 133.

45 The exact language is : “Where the method of straight baselines is applicable … account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.” U.N. Doc. A/CONF. 62/122 (Oct. 7, 1982) (Art. 7, para. 5).

46 U.N. Doc. A/CONF. 62/122 (Oct. 7, 1982). The Convention retains the definitions used in the Anglo-Norwegian Fisheries case and the Territorial Sea and Contiguous Zone Conventions (Art. 5).

47 In the Anglo-Norwegian Fisheries case the Court noted the need to take an impressionistic, holistic view rather than focusing on a particular coastal sector, when examining the criterion of “general direction of the coast.” Since the Court did not explain the parameters of “coastal fringe of islands,” one may venture that the holistic viewpoint would also be required in distinguishing coastal and oceanic/off-lying archipelagoes. See the Fisheries case, [1951] I.C.J, Rep. 116, 142.

48 Fisheries case, [1951] I.C.J. Rep. 116.

49 Ibid., 193.

50 Ibid., 129.

51 Ibid., 142.

52 Professor Reinhard has expressed the same view in these words: “Straight baselines as applied in the Canadian situation would follow the direction of the archipelagic unit and meet the requirements of the Court’s liberal application.” Reinhard, , “International Law: Implications of the Opening of the Northwest Passage,” 74 Dickinson L. Rev. 678, 688 (1970).Google Scholar

53 For such an interpretation, see Dallepenna, , “Canadian Claims in Arctic Waters,” 7 Land and Water L. Rev. 383, 414 (1972).Google Scholar

54 For a complete listing of countries using the straight baseline system and their maximum baseline lengths, see Pharand, D., The Waters of the Canadian Arctic Archipelago in International Law (1984).Google Scholar

55 Fisheries case, [1951] I.C.J. Rep. 116, 127.

56 Convention on the Law of the Sea, U.N. Doc. A/CONF. 62/122 (Oct. 7, 1982) (Art. 7, para. 6).

57 Fisheries case, [1951] I.C.J. Rep. 116, 133.

58 Idem at 142 (emphasis added).

59 The summary of Inuit pre-history is drawn from two sources: Arnold, C., “Archaeology in the Northwest Territories,” Northern Perspectives, Vol. 10, No. 6 (Nov.-Dec. 1982)Google Scholar and Mahoney’s, Judge opinion in the Baker Lake case, 107 D.L.R. 3d 513, 518–19 (1979).Google Scholar

60 For a review of archaeological evidence for pre-historic ice use, see Wenzel, G., “The Archaeological Evidence for Prehistoric Inuit Use of the Sea Ice Environment” (paper presented at the Sikumiat Workshop held at the McGill Centre for Northern Studies and Research, Apr. 15, 1982).Google Scholar

61 Quoted in Cooke, A., “Historical Evidence for Inuit Use of the Sea Ice” (paper presented at the Sikumiat Workshop held at the McGill Centre for Northern Studies and Research, Apr. 15, 1982).Google Scholar

62 Freeman, M. (ed.), Report: Inuit Land Use and Occupancy Project, Volume 3, Land Use Atlas 153 (1976).Google Scholar

63 In 1969 one writer estimated that of the nearly 15,000 Eskimo people inhabiting Canada’s Arctic, approximately 1,000 to 1,500 families continued to live by a hunting and trapping economy. See Stevenson, , “Sealskins and the Eskimo Economy,” Vol. 14, Nos. 91–93 Polar Record 845 (1969).CrossRefGoogle Scholar The Government of the Northwest Territories, through an official Outport Camp Policy, has actively supported native people wishing to return to a traditional life-style. For the text of the Policy, see Vol. 18, Pt. 1 Polar Record 185–86 (1976).

64 Brackel, W. D., “Socio-Economie Importance of Marine Wildlife Utilization,” Beaufort Sea Technical Report No. 32, 36 (1977).Google Scholar

65 Usher, P., “Renewable Resource Development in Northern Canada,” Northern Transitions, Vol. 2 (Second National Workshop on People Resources and the Environment North of 60) 154 (1978).Google Scholar

66 Myers, , “Traditional and Modern Sources of Income in the Lancaster Sound Region,” Vol. 21, No. 130, Polar Record 11, 13 (1982).CrossRefGoogle Scholar

67 Ibid.

68 Devine, M. (ed.), N.W.T. Data Book 1983–83, 62–63 (1982).Google Scholar The figures should be treated as approximate since they are based on reports from hunters and would not include wounded animals which escape capture. The Baffin Region Inuit Association (BRIA) is presently undertaking an extensive study to better document marine mammal harvests. Baffin Region Inuit Association, Study on Inuit Harvesting: Progress Report No. 2 (Apr. 1983).

69 The meat of marine mammals is much higher in protein than domesticated meats. For example, seal meat (uncooked) would have 32 grams of protein per 100-gram portion while beef steak (uncooked) would only have 16 grams of protein per 100-gram portion. Schaefer, O. and Steckle, J., Dietary Habits and Nutritional Base of Native Populations of the Northwest Territories 15 (Aug. 1980).Google Scholar

70 Plaintiffs’ Memorandum in Opposition to Defendants’ Motions for Judgment on the Pleadings, Inupiat Community of the Arctic Slope et al. v. The United States et al., Civil Action No. A81-019, U.S. District Court of Alaska (affidavit of Rosita F. Worl).

71 Schaefer, and Steckle, , Dietary Habits and Nutritional Base of Native Populations of the Northwest Territories 24–35 (Aug. 1980).Google Scholar

72 Freeman, M., “Contemporary Inuit Exploitation of the Sea Ice Environment” (paper presented at the Sikumiat Workshop held at the McGill Centre for Northern Studies and Research, Apr. 15, 1982).Google Scholar

73 For example, oil companies are proposing to ship hydrocarbons from the Beaufort Sea through the more southerly Amundsen Gulf and Prince of Wales Strait. See Dome Petroleum Ltd., Esso Resources Canada Ltd., and Gulf Canada Resources Inc., Beaufort Sea-MacKenzie Delta Environmental Impact Statement: Volume 2, Development Systems 6.30–6.31 (1982).

74 [1951] I-G.J. Rep. 116, 161.

75 Ibid., 149–50.

76 Other concepts such as “reasonableness” and “balancing of interests” might be viewed as variants of the equity doctrine and therefore are not analysed separately in this article. For a general discussion of the various interpretations of the equity doctrine, see Munkman, , “Adjudication and Adjustment: International Judicial Decision and the Settlement of Territorial and Boundary Disputes,” 46 B.Y.I.L. 1, 13–26 (1972–73).Google Scholar For a discussion of the “reasonableness test” in relation to the United States’ declaration of a 400,000-square mile warning area to facilitate nuclear testing, see McDougal, , “The Hydrogen Bomb Tests and the International Law of the Sea,” 49 Am. J. Int’l L. 356 (1955).CrossRefGoogle Scholar For a discussion of the “balancing of interests” approach, see McDougal, M. and Burke, W., The Public Order of the Oceans 305–445 (1962).Google Scholar

77 [1951] I.C.J. Rep. 116, 142.

78 See North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), [1969] I.C.J. Rep. 3) 49–53; the Anglo-French arbitration (United Kingdom v. France), 18 Int’l Legal Materials 397–420; and Case Concerning the Continental Shelf (Tunisian/Libyan Arab Jamahiriya), 21 Int’l Legal Materials 225 (1982). For a discussion of the equity doctrine in relation to Continental Shelf delimitation, see Blecher, , “Equitable Delimitation of the Continental Shelf,” 73 Am. J. Int’l L. 610 (1979).CrossRefGoogle Scholar

79 See Fisheries Jurisdiction cases (United Kingdom v. Iceland; Federal Republic of Germany v. Iceland), [1974] I.C.J. Rep. 3, 175, reprinted in 13 Int’l Legal Materials 1049, 1090.

80 U.N. Doc. A CONF. 62/122 (Oct. 7, 1982) (Art. 74, Economic Zone) (Art. 83, Continental Shelf).

81 U.N. Doc. A/34/186 (Dec. 18, 1979).

82 The need to protect Inuit life-styles was indeed a key reason behind the passage of the Arctic Waters Pollution Prevention Act, as explicitly stated in the Act’s preamble:

AND WHEREAS Parliament at the same time recognizes and is determined to fulfil its obligation to see that the natural resources of the Canadian arctic are developed and exploited and the arctic waters adjacent to the mainland and islands of the Canadian arctic are navigated only in a manner that takes cognizance of Canada’s responsibility for the welfare of the Eskimo and other inhabitants of the Canadian arctic and the preservation of the peculiar ecological balance that now exists in the water, ice and land areas of the Canadian arctic. . .. (R.S.C. 1970, c. 2 [ist Supp.]) (emphasis added)

83 1976, Res. 2200 (XXI), reprinted in Sohn, L. and Buergenthal, T., Basic Documents on International Protection of Human Rights 44–62 (1973).Google Scholar

84 The full text of Art. 1(2) is: “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.” Canada became a party to the Convention in 1976. For a listing of 23 human rights instruments which have been ratified by Canada, see Cohen, and Bayefsky, , “The Canadian Charter of Rights and Freedoms and Public International Law,” 61 Can. Bar Rev. 265, 285, No. 80 (1984).Google Scholar

85 The Committee represented Canada in the 1964-74 International Biological Programme, a co-operative program between the International Council of Scientific Unions and 58 nations to relate biological productivity of the earth’s ecosystems to human welfare. In 1968 the Conservation of Terrestrial Biological Communities Subcommittee, supported by the National Research Council of Canada, recommended individual panels to study 10 geographical regions of Canada. Panel 9 investigated the Arctic tundra area while Panel 10 studied forested regions north of 60° latitude. For a description of the 71 ecological sites recommended by Panel 9, see Nettleship, D. and Smith, P. (eds.), Ecological Sites in Northern Canada (1975).Google Scholar For the 69 sites proposed by Panel 10, see Beckel, D. (ed.), IBP Ecological Sites in Subarctic Canada (1975).Google Scholar

86 For a map of the 23 sites, see Dome Petroleum Ltd., Esso Resources Canada Ltd., and Gulf Canada Resources Ltd., Beaufort Sea-MacKenzie Delta Environmental Impact Statement, Vol. 3B, at 2.95 (1982).

87 C.T.S., 1976 No. 45.

88 Ibid., Art. 5(d).

89 Ibid., Art. 2.

90 International Union for the Conservation of Nature, World Conservation Strategy: Living Resource Conservation for Sustainable Development (1980).

91 Ibid., chap. 19 (Regional Strategies for International River Basins and Seas), para. 12.

92 Schwarzenberger suggested that a title, based on “historical consolidation,” should be grounded on 7 principles — sovereignty, recognition, consent, good faith, self-defence, international responsibility, and freedom of the seas. Schwarzenberger, , “Title to Territory: A Response to a Challenge,” 51 Am. J. Int’l L. 308, 312 (1957).CrossRefGoogle Scholar Professor Charles De Visscher hinted that the doctrine might consider all relevant interests:

Proven long usage, which is its foundation, merely represents a complex of interests and relations which in themselves have the effect of attaching a territory or an expanse of sea to a given State. It is these interests and relations, varying from one case to another, and not the passage of a fixed term … that are taken into direct account by the judge to decide in concreto on the existence or nonexistence of a consolidation by historic titles.

De Visscher, C., Theory and Reality in Public International Law 209 (1968).Google Scholar Such a broad factual base distinguishes historical consolidation from the historic waters doctrine, which has traditionally relied on a three-part analysis — manifestations of authority, continuity of authority, and acquiescence by other states.

93 For general discussions of the doctrine, see Johnson, , “Consolidation as a Root of Title in International Law,” 13 Cambridge L.J. 215 (1955)CrossRefGoogle Scholar; Head, , “Canadian Claims to Territorial Sovereignty in the Arctic Regions,” 9 McGill L.J. 200, 224–26 (1963)Google Scholar; and Blum, Y., Historic Titles in International Law 335–40 (1965).CrossRefGoogle Scholar

94 Scott, J. (ed.), The Hague Court Reports 121 (1916).Google Scholar

95 Ibid., 130.

96 [1951] I.C.J. Rep. 116, 139.

97 De Visscher, C., Theory and Reality in Public International Law 321 (1968) (emphasis added).Google Scholar

98 For a discussion of early Inuit use of the sea ice, see supra note 59 and accompanying text, and Schiedermann, P., “Inuit Prehistory and Archaeology” in Zaslow, M. (ed.), A Century of Canada’s Arctic Islands 245 (1981).Google Scholar

99 For a discussion of early exploration, legislative and administrative controls, see D. Pharand, supra note 8.

100 [1951] I.C.J. Rep. 116, 142.

101 Ibid., 133.

102 See infra notes 105 and 106 and accompanying text.

103 Canada’s claim, through the Arctic Waters Pollution Prevention Act, to a 100-mile pollution prevention zone was apparently based in part on the doctrine of vital interests. Strands of the doctrine appeared in the Canadian reply to the U.S. government’s protest:

Canada reserves to itself the same right as the United States has asserted to determine for itself how best to protect its vital interests, including in particular its national security. . . . In discussions between Canada and the United States from time to time over the last ten years, Canada has made clear its serious concern over the unresolved questions of the breadth of the territorial sea and the rights of coastal states to assert limited forms of jurisdictions beyond the territorial sea for the purpose of protecting vital interests. . . . The proposed anti-pollution legislation is based on the overriding right of self-defence of coastal states to protect themselves against grave threats to their environment (9 Int’l Legal Materials 607, 608–10).

104 Quoted in a Memorandum by the Secretariat of the United Nations on Historic Bays (Preparatory Document No. 1), U.N. Doc. A/Conf. 13/1 at p. 29 (Sept. 30, 1957).

105 L. M. Drago, Dissenting Opinion in the North Atlantic Coast Fisheries case, Scott, J. (ed.), Hague Court Reports 195, 200 (1916).Google Scholar The majority opinion also admitted the importance of the vital interest factor: “[T]hus conditions of national and territorial integrity, of defense, of commerce and of industry are all vitally concerned with the control of the bays penetrating the national coastline. This interest varies, speaking generally in proportion to the penetration inland of the Bay.” Idem at 183.

106 I I Am. J. Int’l L. 674, 705 (1917).

107 Quoted in a Memorandum by the Secretariat of the United Nations on Historic Bays (Preparatory Document No. 1), U.N. Doc. A/Conf. 13/1, at 30 (Sept. 30, 1957).

108 [1951] I.G.J. Rep. 116, 132.

109 O’Connell, D. P., The International Law of the Sea, Vol. 1, at 438 (1982).Google Scholar

110 For a general discussion of the cession doctrine, see Whiteman, M., Digest of International Law, Vol. 2, at 1088–1111 (1963).Google Scholar

111 On Nov. 11, 1975 the Inuit of northern Quebec and the James Bay Cree signed the James Bay and Northern Quebec Agreement with the governments of Canada and Quebec, Hydro-Quebec, the James Bay Development Corporation, and the James Bay Energy Corporation. The agreement, implemented through the James Bay and Northern Quebec Native Claims Settlement Act, S.C. 1976–77, c. 32, granted the Cree and Inuit cash compensation of approximately $232.5 million, provision for local and regional government authority, surface rights to about 1.3 per cent of traditional lands, and hunting, fishing, and trapping rights. For a critique of the agreement’s implementation see Minister of Indian Affairs and Northern Development, James Bay and Northern Quebec Agreement Implementation Review (Feb. 1982). For a general discussion of land claims negotiations, see Cumming, P., Canada, Native Land Rights and Northern Development (1977).Google Scholar

112 (1926) 6 R.I.A.A. 173, 176 and Mackenzie, N. and Laing, L., Canada and the Law of Nations 180, 182 (1938).Google Scholar

113 (1928) 2 R.I.A.A. 829.

114 Ibid., 858.

115 (1933) P.C.I.J. Rep. Series A/B, No. 53, at 22.

116 Ibid., 47.

117 Western Sahara, Order of Jan. 3, [1975] I.C3.J. Rep. 3.

118 Ibid., 39.

119 Ibid., 85–86.

120 Application of the Law of the Sea regime to Arctic ice and waters seems justified for two reasons. First, the Arctic is analogous to other ocean areas, capable of supporting such maritime activities as shipping and fishing. Second, Art. 234 of the Law of the Sea Treaty, by specifically mentioning ice-covered waters, strongly suggests an international consensus that the Arctic offshore should be treated as a maritime region.

121 That rights in marine areas may be ceded was recognized by the arbitral tribunal which decided the Norwegian-Swedish maritime boundary in the Grisbadarna case:

[T]his opinion is in conformity with the fundamental principles of the law of nations, both ancient and modern, in accordance with which the maritime territory is an essential appurtenance of land territory, whence it follows that, at the time when, in 1658, the land territory called the Bohuslan was ceded to Sweden, the radius of maritime territory constituting an inseparable appurtenance of this land territory must have automatically formed a part of this cession. ( Scott, J. (ed.), The Hague Court Reports 121, 127 (1916).)Google Scholar

122 Internal waters are waters to the landward side of the territorial sea baseline. Art. 8, Third United Nations Conference on the Law of the Sea, A/CONF. 62/122 (Oct. 7, 1982).

123 Historic waters, a doctrine of customary international law, has been used by states to claim historic rights to bays, waters of archipelagos, straits, estuaries, and other similar bodies of water. For a comprehensive study of the doctrine by the U.N. Secretariat, see Juridical Regime of Historic Waters, Including Historic Bays, U.N. Doc. A/CN. 4/143 (Mar. 1962).

124 The territorial sea regime, while granting a state extensive rights, would deny the coastal state the right to deny innocent passage of foreign vessels. Art. 17, Third United Nations Conference on the Law of the Sea, A/CONF. 62/122 (Oct. 7, 1982).

125 One might also argue that the less onerous doctrine of effective occupation would apply where the claimant State need only show effective territorial possession. No showing of acceptance (acquiescence) by other States would theoretically be necessary because the claimant’s title was not originally illegal or controverted by other States. However, effective occupation has in fact assumed a measure of acquiescence since courts have required not just original occupation but continued maintenance of title, which implies the need to assess the attitude of other states. As Judge Huber stated in the Island of Palmas case: “[P]ractice, as well as doctrine, recognizes that the continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) is as good as title.” (1928) 2 R.I.A.A. 829, 839. For the coalescent tendency of the doctrines of occupation, historic waters, and prescription, see MacGibbon, , “Customary International Law and Acquiescence,” 33 B.Y.I.L. 114, at 119–21 (1957).Google Scholar

126 Legal Status of Eastern Greenland, P.C.I.J., Ser. A/B, No. 53 (1933) and Clipperton Island case, 2 R.I.A.A. 1105 (1931), 26 Am. J. Int’l L. 390 (1932). For a further discussion of the evidentiary requirements, see O’Connell, D. P., The International Law of the Sea, Vol. 1, at 427–32 (1982).Google Scholar

127 Federal Environmental Assessment Review Office, Arctic Pilot Project (Northern Component) : Report of the Environmental Assessment Panel 66–70 (1980).

128 A Draft Plan suggests dividing Arctic lands and waters into 6 regions where 6 individual Northern Land Use Planning Commissions would develop and recommend plans to the Minister of Indian and Northern Affairs. Dept. of Indian and Northern Affairs, Land Use Planning in Northern Canada: Preliminary Draft (Oct. 14, 1982).