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Donat Pharand: The Arctic Scholar

  • Suzanne Lalonde and Ronald St. J. MacDonald

Summary

The Arctic, long neglected, has been thrust into the limelight as climate change dramatically transforms its landscape. The ice, which for centuries has acted as a powerful barrier keeping the world at bay, is melting at an alarming rate. The promise of greater accessibility to the region inevitably raises a host of important issues. Donat Pharand, an internationally renowned scholar, has dedicated his long and illustrious career to researching and understanding the legal issues pertaining to Canada's claim over the waters of the Arctic archipelago. This article chronicles the key events in his life and examines Pharand's profound contribution to the law of the sea of the Arctic.

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1 Although trained in the Common Law, Donat Pharand is an emeritus professor of the Civil Law section of the Faculty of Law at the University of Ottawa.

2 Pharand, D., “The Arctic Waters and the Northwest Passage: A Final Revisit” (2007) 38:3 Ocean Dev. & Int’l L. 3 [“Arctic Waters”].

3 Pharand, D., “Soviet Union Warns United States against Use of Northeast Passage” (1968) 62 A.J. I.L. 927 [“Soviet Union Warns US”].

4 The narrative in the first part of this article is based on an autobiographical essay of fifty typewritten pages prepared by Donat Pharand in 2004 for distribution to members of his family as well as on countless conversations shared between Ronald St. J. Macdonald and Donat Pharand over a fifty-six-year period starting in the autumn of 1949 when they sat together as first-year law students at Dalhousie University. The narrative is also based on the recording of several interviews with Pharand conducted at Judge Macdonald’s request by Timothy Wilson and to whom he wished to express his deep appreciation. Pharand’s autobiographical memorandum [“Autobiography”] is accessible at the University of Ottawa Archives, IOO Marie Curie Street, Ottawa, KIN SN6.

5 A homemade bed with a straw mattress, a few dishes, orange crates for cupboards, a table, a bench, and two chairs. The only other buildings were an outhouse and a small stable for their one horse.

6 With the exception of Donat, all of the fourteen children were born at home and without any doctor in attendance. Three children having died in infancy in the previous six years, including two on the same day (from the Spanish influenza in 1918), Alphonse decided not to take any chances when it was Donat’s turn and sent his second oldest son, then nineteen years old, to get the nearest doctor by horse and buggy in the town of Capreol, some eight miles away.

7 LeBelle, W. F., ed., Valley East 1850–2002 (Burnstown: General Store Publishing House, 2002).

8 Ibid. at 31.

9 The college became the University of Sudbury in 1957 and Laurentian University in 1960. The latter became a federated university composed of three smaller universities: the University of Sudbury (Catholic), Huntington (United Church), and Thornloe (Anglican).

10 Enrolment into the first year of the eight-year classical course hinged on a candidate’s results in the admission test.

11 Even those few hours did not constitute complete freedom as a few of the priests were assigned to keep an eye on the college boys to insure that they did not attend any “immoral” films or speak with a girl for too long.

12 So completely did Rodolphe Dubé live up to his reputation of forever questioning the status quo that in 1943 he left the order and eventually the priesthood and went into exile in France.

13 Léo Landreville later became a judge of the Ontario Supreme Court.

14 To help veterans rehabilitate themselves in civilian life, the Canadian government gave them the choice between a cash amount (so much for every month of service) or a month of university for every month of service and a modest monthly allowance during the academic year.

15 For what Halifax was like at the time of Pharand’s arrival in 1949, see Fingard, J., Guilford, J., and Sutherland, D., Halifax: The First 250 Years (Halifax: Formac Publishing, 1999) at 16off; and Raddall, T. H., Halifax Warden of the North (Halifax: Nimbus Publishing, 1993). For the university, see Waite, P. B., The Lives of Dalhousie University, 2 volumes (Montreal: McGill-Queen’s University Press, 1998); and on the law school, see Willis, J., A History of Dalhousie Law School (Toronto: University of Toronto Press, 1980).

16 Willis, supra note 15 at 179.

17 Hendry wrote an early post-war treatise on the treaty power in federal states. A good scholar, he did not maintain his interest in international law but soon left Halifax and turned instead to administrative and labour law at the University of Ottawa and in the civil service.

18 Read had little choice but to start a graduate program since some of the Angus L. Macdonald money and all of the Sir James Dunn money would not otherwise have been forthcoming unless he did so. See Willis, supra note 15 at 175.

19 J.H. Aicheson (1908–94) was chairman of the Department of Political Science at Dalhousie. W.R. Lederman (1916–92) served as Sir James Dunn Professor of Law at Dalhousie, 1949–58, and Dean of Law at Queen’s University, 1958–68. For a series of fine tributes, see the symposium entitled “Remembering Bill Lederman” (1993) 19 Queen’s L.J. 1, and for an appraisal of his important work in constitutional law, see Risk, R. C. B., “On the Road to Oz: Common Law Scholarship about Federation after World War II” (1991) 41 U.T. L.J. 143 at 154–62.

20 See Tanca, A., “Georges Scelle (1878–1961) Biographical Note with Bibliography” (1990) 1 E.J.I.L. 240 ; Rousseau, Ch., “Georges Scelle (1878–1961)” (1961) 65 R.G.D.I. 5 (includes a detailed, though not complete, bibliography of Scelle’s works); and Dupuy, R.-J., “Images de Georges Scelle” (1990) 1 E.J.I.L. 235. For a short bio-note on Rousseau, see Mélanges offerts à Charles Rousseau: La Communanté internationale (Paris: Editions A. Pedone, 1975).

21 Even passing reference to the social and psychological “atmosphere” in Paris during the post-Second World War period would be deficient without mention of Simone Signoret’s remarkable memoir, La nostalgie n’est plus ce quelle était (Paris: Editions du Seuil, 1976); in English, Nostalgia Isn’t What It Used to Be (New York: Penguin Books, 1979).

22 Marcel Sibert was a professor at the faculté de droit in Paris, member of the Institut de droit international, and director of the Institut des Hautes Études Internationales at the Université de Paris.

23 Castañon, C., “Les problèmes coloniaux et les classiques espagnols du Droit des Gens” (1954) 86 Rec. des Cours 557 ; and Maridakis, G., “Les principaux traits de la récente codification hellénique touchant le droit international privé” (1954) 85 Rec. des Cours 107.

24 This time, however, the translation was consecutive.

25 On Schwarzenberger, see especially Gold, E., “Stéphanie Steinle, Volkencht und Machtpolitik: Georg Schwarzenberger (1908–1991)” (2003) 5 J. Hist. Int’l L. 423 ; and the obituary notice by Schwarzenberger’s closest colleague, Green, L. C., in (1992) 86 A.J.I.L. 341. On Roberto Ago, see the obituary notice in (1995) 89 A.J.I.L. 581 .

26 This delightful incident, which certainly says a lot about Ago, comes directly from Pharand’s “Autobiography,” supra note 4.

27 See D. Pharand, “La théorie des secteurs dans l’Arctique à l’égard du Droit international” (Doctorat d’Université, Université de droit, d’économie et de sciences sociales de Paris, 1955) at 148 [unpublished] [“La théorie des secteurs”].

28 Certificate dated 26 December 1955, which later supported his application to enter Canada’s foreign service. D. Pharand’s personal files [on file with the author].

29 Renouvin, P., ed., Histoire des relations internationales, 8 volumes (Paris: Hachette, 1953–58).

30 See Rousseau, Ch., Droit international public (Paris: Recueil Sirey, 1953). Typical of the praise accorded this outstanding volume was the review by Marcel Sibert in (1954) 58 R.G.D.I.P. 615. Rousseau’s celebrated five volumes appeared later; see Rousseau, Ch., Droit international public, 5 volumes (Paris: Sirey, 1970–83). These volumes are universally regarded as a triumph of legal scholarship.

31 On Scelle, see “Règles générales du Droit de la paix” (1933) 46 Rec. des Cours 331 . Ago’s lectures were given in 1955, but he only submitted his text for publi-cation in 1956. “Science juridique et Droit international” (1956) 90 Rec. des Cours 851 .

32 Unable to work as a foreigner on a temporary visa, his wife cared for their son while providing Pharand with this invaluable assistance.

33 This generosity was all the more remarkable when one considers the reason she had no specialized training. Florence had been obliged to quit school at the age of ten in order to care for Pharand when he was born and to do housework, since their mother had become ill after this fourteenth child. See “Autobiography,” supra note 4 at 30.

34 For a brief account of international law at the University of Ottawa, see Macdonald, R. St. J., “An Historical Introduction to the Teaching of International Law in Canada: Part II” (1975) 13 C.Y.I.L. 255 at 268–76.

35 He had accepted the teaching position on the understanding that he would teach constitutional law in the second year when the course became available. It did become available the next year, when Judge John E. Read, who had retired from the International Court of Justice (ICJ) and had been teaching as a part-time lecturer, decided to retire from teaching, but the course was assigned to a young newcomer. On Read, see Wershof, M., “Salute to John Erskine Readȍ [May-June 1974] Int’l Persp. 47 ; Hillmer, N., “Read, John Erskine,” in The Canadian Encyclopaedia, 2nd ed., vol. 3 (Edmonton: Hurtig Publishers, 1988) at 1830. Probably Canada’s leading international lawyer in the 1930s, 1940s, and 1950s, John Read did not teach international law at the University of Ottawa or at Dalhousie.

36 Pharand, D., “Analysis of the Opinion of the International Court on Certain Expenses of the United Nations” (1963) 1 C.Y.I.L. 272.

37 Pharand has mixed feelings about his six years in the Common Law section at the University of Ottawa. He enjoyed teaching and his contact with students but regretted that so many well-qualified young professors did not remain on the faculty more than a year or two.

38 Mon Ami Monsieur Pharand, 7 December 2002.

39 William W. Bishop, Jr., was an assistant legal adviser at the United States State Department 1939–47; member of the Michigan Law Faculty 1948–75; member of the Permanent Court of Arbitration; and editor of one of the few great casebooks on international law. See (1976) 74 Mich. L. Rev. 851 for tributes by Eric Stein, George Lehner, and Brunson MacChesney. See also Jr.Bishop, William W., “In Memoriam: Part 1” (1989) 10 Mich. J. of Int’l L. 1. This excellent collection contains a vita and a bibliography of W.W. Bishop and splendid tributes by Covey T. Oliver, Michael H. Cardozo, James N. Hyde, and John H. Jackson. Donat Pharand contributed an article on the Northwest Passage in honour of the memory of his old teacher.

40 Letter of Roger Cunningham, director of graduate studies, Michigan, 3 April 1967, at 2 [on file with the author].

41 The proceedings of Conard’s conference on legal research are still useful. See Conard, A. F., Conference on Aims and Methods of Legal Research (Ann Arbor: University of Michigan Law School, 1955).

42 “Autobiography,” supra note 4 at 48.

43 “Soviet Union Warns US,” supra note 3.

44 Although Bishop was considerate and fair in relations with his students, he was not direct or effervescent in his praise. However, in January 1973, he had his private secretary and assistant of many years, Mary Broadly Gomes, inform Pharand that his doctoral committee had formerly recommended him for the doctorate of juridical sciences (SJD), and through this letter Pharand discovered that Bishop held his writing skills in high esteem: “As I mentioned to you before, Professor Bishop has formed a very high opinion of your ability in the international law field, and he liked your work for the dissertation very much. He also said that you had an unusual ability to write very clearly and to marshal your material together with a good sense of organization. Coming from the Master himself, this is all very high praise and he is not always this generous by any means. You should feel very pleased with what you have done.” Mary Gomes to Donat Pharand, 18 January 1973 [on file with the author].

45 On whether international law should be a compulsory course, see references in Macdonald, R. St. J., “International Law at the University of British Columbia, 1945–2000” (2003) 41 C.Y.I.L. 3 at 4649.

46 In addition to the 1976 “Excellence in Teaching Award,” Pharand received a number of other prestigious awards and honours. In 1964, the Association of Professors of the University of Ottawa took the initiative, with the cooperation of the Board of Governors, to establish an “Excellence in Research Award.” The honour was awarded annually to a professor who had made an important original contribution to the advancement of knowledge, and he or she was required to give a public lecture. In 1974, shortly after the publication of his book The Law of the Sea of the Arctic, with Special Reference to Canada, Pharand received the award. The topic of his lecture was “The Nortwest Passage: A Concern for Canadians,” and it was attended by numerous colleagues, students, family, and friends. In 1989, Pharand was awarded the “John E. Read Medal” by the Canadian Council on International Law for his “outstanding contribution to the cause of international law.” In 1994, Pharand was made an officer of the Order of Canada, in recognition of his contribution to the consolidation of Canada’s sovereignty over its Arctic waters and to the status of French in Ontario schools. Also in 1994, he was appointed a Queen’s Counsel by the government of Canada, recognizing “a person who has performed outstanding and extensive legal services for the federal government.” In 1999, Dalhousie University awarded Pharand an honorary doctor of law degree as “a most distinguished graduate” and “one of Canada’s foremost experts on the international law of the sea, specially with regard to the Arctic.”

47 As required by the yearly recipient of the award, Pharand gave a public lecture on 8 November 1988, at which numerous colleagues and former students attended. Not surprising, the subject of his lecture was “Canada’s Sovereignty in the Arctic” and, since the award was to recognize excellence in teaching, which included “the use of innovative methods,” Donat spoke from a specially prepared map. With the help of a technician from the Faculty of Engineering, he had devised a lighted wall map of the Canadian Arctic showing the various zones of Canada’s jurisdiction with miniature lights: internal waters, territorial sea, and exclusive economic zone. Special control lights that were red and green were installed at each end of the Northwest Passage, which could change from red to green to indicate when authorization was granted to a foreign ship.

48 “Donat Pharand” (1981) 16 Univ. of Ottawa Gazette 1.

49 Ibid. at 10.

50 Faculty of Graduate and Postdoctoral Studies, 2002–2004 Calendar for Law, at 5.

51 A lengthy and useful paper can and should be written about Pharand’s contribution to legal education. See Anand, S. S., “Canadian Graduate Legal Education: Past, Present and Future” (2004) 27 Dal. L.J. 55. This article is to be welcomed as a useful start on a much-neglected subject in Canadian legal literature, but it is only a start. The section on the University of Ottawa (pp. 132–36) unfortunately makes no mention of Pharand.

52 Interview between Cadieux and Pharand, Ottawa, 12 October 1977. The Canadian Council on International Law honoured Cadieux posthumously with the Read Medal in 1981 .

53 Pharand, D., “Third Party Settlement of Disputes (with Special Reference to Canada/USA Maritime Boundaries),” 12 January 1978, at 115–20.

54 See sources cited in “The Northwest Passage in International Law” ( 1979) 17 C.Y.I.L. 99 at 126, n 67 [“Northwest Passage”].

55 Gotlieb to Pharand, 1 June 1979 [on file with the author].

56 Pharand’s reflections on his year at the Department of External Affairs are more or less typical of those who served in this position before and after him. See, for example, the brief comments of Charles Bourne, the first academic-in-residence at the Department of External Affairs, in MacDonald, R. St. J., “Charles B. Bourne: Scholar, Teacher and Editor, Innovator in the Development of the International Law of Water Resources” (1996) 34 C.Y.I.L. 3 at 29.

57 Pharand, D., “The Legal Status of the Arctic Regions” (1979) 163 Rec. des Cours 49 [“Legal Status of Arctic Regions”].

58 After the lectures, the interpreter thanked Pharand and confided that, in over ten years of interpreting in his little cubicle, it was the first time he had received any public appreciation.

59 His (unpublished) conclusions were that: ( 1 ) assaults on the principle of freedom of the seas are not new; (2) the more advanced the uses of marine spaces become the more numerous and extensive state claims develop; (3) the evolution of the principle of freedom of the seas has always served and continues to serve the interests of states capable of having their claims accepted; and (4) the defence of the freedom of the seas by Grotius in his Mare Liberum was not a philosophical exercise but a legal brief written for the Dutch East India Company to justify its capture of a Portuguese galleon in the straits of Malacca in 1602.

60 “Autobiography,” supra note 4 at 68.

61 There now exists a flourishing Marine and Environmental Law Institute headed by Moira McConnell, which is part of the Dalhousie Law School.

62 Pharand, D., Northwest Passage: Arctic Straits (Dordrecht: Martinus Nijhoff Publishers, 1984) [ Arctic Straits].

63 Pharand, D., Canada’s Arctic Waters in International Law (Cambridge: University Press, 1988) [Canada’s Arctic Waters].

64 In addition to enjoying free access to all library resources, Pharand was permitted to examine the original hand-written journals of the explorers, stored and catalogued in a special room in the basement. Alone in the room with the documents, Pharand had the impression of being in communication with the explorers themselves. He examined all of the relevant materials he could find on the British expeditions before the transfer of the Arctic islands to Canada in 1880, beginning with the expedition of Martin Frobisher in 1576 and ending with those in search of Sir John Franklin in 1859. The documents examined included the instructions to the explorers, their personal journals, the narratives by the commandant of the expeditions, and the reports to Parliament compiled in what are called Arctic Blue Books.

65 Pharand’s conclusion confirmed the earlier finding by the historian Gordon W. Smith, “A Historical Survey of Maritime Exploration in the Canadian Arctic and Its Relevance with Subsequent and Present Sovereignty Issues” (1970) [unpublished] at 26 [on file with the author].

66 Pharand’s analysis and conclusions on the issue of historic waters will be examined in the second part of this article.

67 “Northwest Passage,” supra note 54 at 108–9.

68 Typescript entitled “7,000 Mile Trip to the Arctic, 9–16June 1982” at 26–27 [on file with the author].

69 Pharand’ s diary entry of 13 October 1989 reads as follows: “16:05 hrs: We’re in the last stretches ofVictoria Strait, approaching Larsen Sound, and going through second and multi-year ice as much as 10 feet thick.” And at 18:00 hrs: “I have just been on deck for a few minutes and this is certainly the worst we’ve hit so far. There are practically no open spaces and the icefield is covered with snow, and blowing, which means you can’t even guess as to the thickness of the ice.” The entrance to Larsen Sound turned out to be worse than Victoria Strait itself, and the captain told Pharand that “some of the floes we are now dealing with are about 15 feet thick.”

70 As the journey neared the end, Pharand wrote in his diary on the morning of Sunday, 8 October 1989: “A sign that we are on the way home was given to me when I went for a coffee: the program ‘Sunday Morning’ was on. So I rushed back to my cabin to listen to the news. It’s heartlifting and it isn’t. It is in the sense that it makes you feel part of ‘civilization’ again, but it isn’t, in that the so-called civilization is part of a divided violent world. When one thinks that the Inuit, whose lands we have just left, were completely unfamiliar with the word ‘war’ until we brought it to them during World War II, one begins to wonder who brought civilization to whom. The great explorer Roald Amundsen, who spent two years with the Esquimos (as they were called then) when wintering at Gjoa Haven at the southeast corner of King William Island during his historic crossing of the Northwest Passage in 1903–06, was quite convinced that we did not bring them civilization. And this was essentially the opinion of the French oblate missionary, André Steinman, when I met him in 1955 after he had spent nearly twenty years with them on a continuous basis.”

71 Agreement between Canada and France on Their Mutual Fishing Relations, 27 March 1972, Can. T.S. 1979 No. 37 (entered into force 27 March 1972).

72 Dispute Concerning Filleting within the Gulf of St. Lawrence, between France and Canada (1986), Award, 82 I.L.R. 591 at 638.

73 Ibid. at 611–12.

74 Ibid. at 615.

75 Ibid. at 641

76 Ibid. at 628. Convention on the Law of the Sea, 10 December 1982, 21 I.L.M. 1261 (1982) [UNCLOS].

77 Ibid. at 630.

78 Ibid. at 641–44 and 644–48.

79 See, in particular, Arbour, J. M., “L’affaire du chalutier-usine ‘La Bretagne’” (1986) 24 C.Y.I.L. 61 ; Burke, W. T., “Coastal Fishery Regulation under International Law: A Comment on the La Bretagne Award” (1988) 25 San Diego L. Rev. 495 ; McDorman, T., “French Fishing Rights in Canadian Waters: The 1986 La Bretagne Arbitration” (1989) 4 Int. L.J. Estuarine and Coastal Law 52 ; and McRae, D. M., “Approaches to the Resolution of Atlantic Pacific Ocean Problems” (1989) 16 Ecology L.Q. 227 at 237–41.

80 Burke, supra note 79 at 531.

81 Ibid. at 533.

82 Ibid. at 503. Burke added a comment about the nationality of the majority members of the tribunal, implying that it might have coloured somewhat their general approach to the interpretation of the applicable law.

83 In a 1978 interview with Montreal freelance journalist Louise Abbott, Pharand explained that he “became interested first in the Arctic rather than in the law of the sea.” Abbott, L., “Donat Pharand: Studying the Law of the Sea of the Arctic” (1978) 3(2) Hearsay 10.

84 Pharand’s first article on the law of the sea of the Arctic was published in 1968 in the American Journal of International Law. “Soviet Union Warns US,” supra note 3. His most recent article, an exhaustive summary of the issues and principles involved in the debate over the Northwest Passage was published in March of 2007. “Arctic Waters,” supra note 2.

85 Pharand, D., The Law ofthe Sea ofthe Arctic with Special Reference to Canada (Ottawa: University of Ottawa Press, 1973) [Law of the Sea].

86 Arctic Straits, supra note 62.

87 Canada’s Arctic Waters, supra note 63.

88 The plan for the second part of this article is to a large extent borrowed from Pharand’s own 1988 work, ibid.

89 Pharand, D., “Historic Waters in International Law with Special Reference to the Arctic” (1971) 21 U.T. L.J. 1 at 1 [“Historic Waters”]. He concedes, however, that “the extent and basis of Canada’s jurisdiction over the waters of the archipelago in question is not as certain” (ibid.).

90 “Legal Status of Arctic Regions,” supra note 57 at 65. See also “Sovereignty and the Canadian North,” in Whittington, M. S., ed., The North (Toronto: University of Toronto Press, 1985), 141 [“Sovereignty”].

91 “Legal Status of Arctic Regions,” supra note 57 at 65.

92 Ibid. at 65–66.

93 Three islands lying immediately west of the Arctic archipelago. The recent dispute over tiny Hans Island, which is located in the centre of the Kennedy Channel of Nares Strait, the strait that separates Ellesmere Island from northern Greenland on the outer edge of the archipelago, has been described as inconsequential by most Canadian commentators.

94 See Pharand’s recent article in the Financial Post in which he dismisses arguments that Canada’s inability to find a map made by the Norwegian explorer Otto Sverdrup could affect Canada’s territorial sovereignty over the Arctic islands. “Arctic Title,” Financial Post (23 March 2007) at A13.

95 “Legal Status of Arctic Regions,” supra note 57 at 66.

96 Canada’s Arctic Waters, supra note 63 at 11 and 79.

97 Pharand, D., “The Legal Status of Ice Shelves and Ice Islands in the Arctic,” in Law ofthe Sea, supra note 85, Part V, at 181204.

98 Pharand, D., “The Legal Status of Ice Shelves and Ice Islands in the Arctic” (1969) 10 C. de D. 461 [“Legal Status of Ice Shelves”].

99 Pharand, D., “State Jurisdiction over Ice Island T-3: The Escamilla Case” (1971) Arctic 83 [“Escamilla Case”].

100 For a description of ice shelves, see “Legal Status of Ice Shelves,” supra note 98 at 462–66; and Law ofthe Sea, supra note 85 at 182–87. For a description of ice islands, see “Legal Status of Ice Shelves,” supra note 98 at 467; “Escamilla Case,” supra note 101 at 85–86; and Law of the Sea, supra note 85 at 188–89.

101 “Legal Status of Ice Shelves,” supra note 98 at 468–73; and Law ofthe Sea, supra note 85 at 189–94.

102 “Legal Status of Ice Shelves,” supra note 98 at 461; and Law ofthe Sea, supra note 85 at 181 .

103 Antarctic Treaty, 1 December 1959, <http://sedac.ciesin.org/pidb/texts-menu.html>. See his arguments in “Legal Status of Ice Shelves,” supra note 98 at 462; and in Law ofthe Sea, supra note 85 at 181.

104 “Legal Status of Ice Shelves,” supra note 98 at 462; and Law ofthe Sea, supra note 85 at 181 .

105 Law of the Sea, supra note 85 at 187.

106 Ibid.

107 “Legal Status of Ice Shelves,” supra note 98 at 467.

108 Ibid.

109 “Legal Status of Arctic Regions,” supra note 57 at 93.

110 Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 U.N.T.S. 205 (entered into force 10 September 1964) [Territorial Sea Convention]; and Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 312 (entered into force 10 June 1964).

111 Informal Composite Negotiating Text (ICNT), U.N. Doc. A/CONF.62/WP.10 [6th Session, 1977]. Nor was any specific provision relating to ice islands later included in the 1982 UNCLOS, supra note 76.

112 “Legal Status of Arctic Regions,” supra note 57 at 93.

113 Ibid. at 94.

114 Law of the Sea, supra note 85 at 196.

115 “Legal Status of Arctic Regions,” supra note 57 at 95.

116 Ibid. This conclusion assimilating ice islands to artificial islands in certain circumstances is a refinement of Pharand’s earlier analysis. In both his 1969 article and 1973 book, Pharand only considers two possible options: ice islands as land, which he rejects, and ice islands as ships.

117 Ibid. at 100.

118 Ibid.

119 “Escamilla Case,” supra note 99 at 87.

120 See, for example, Pharand, D., “Canada’s Arctic Jurisdiction in International Law” (1983) 7 Dal. L.J. 315 at 326–28 [“Canada’s Arctic Jurisdiction”].

121 Part VII, in Law ofthe Sea, supra note 85 at 253–324.

122 Pharand, D., “The Continental Shelf Redefinition, with Special Reference to the Arctic” (1972) 18 McGill L.J. 536 ; “Legal Status of Arctic Regions,” supra note 57; Pharand, D., “Le droit de la mer: où en sommes-nous?” (1980) 5 Ann. Dr. m. a. 132 ; Pharand, D., “Canada’s Jurisdiction in the Arctic,” in Zaslow, M., ed., A Century of Canada’s Arctic Islands (Ottawa: Royal Society of Canada, 1981) at 111–30 [“Canada’s Jurisdiction”]; “Canada’s Arctic Jurisdiction,” supra note 120; Pharand, D., “The Legal Régime of the Arctic: Some Outstanding Issues” (1984) 39 Int’l J. 742 [“Legal Régime”]; “Sovereignty,” supra note 90 at 141; Pharand, D., “Delimitation of Maritime Boundaries: Continental Shelf and Exclusive Economic Zone, in Light of the Gulf of Maine Case” (1985) 16 R.G.D. 363 [“Delimitation of Maritime Boundaries”]; Pharand, D., “La souveraineté du Canada dans l’Arctique” (1986) 3 R.Q.D.I. 289 ; Pharand, D., “Les problèmes de droit international dans l’Arctique” (1989) 20(1) R. Études Int’l 131 [“Problèmes dans l’Arctique”]; Pharand, D., “Delimitation Problems of Canada (Second Part),” in Pharand, D. and Leanza, U., eds., The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal Regime (The Hague: Kluwer Academic Publishers, 1993) at 171–79.

123 Pharand and Leanza, supra note 122.

124 “Canada’s Arctic Jurisdiction,” supra note 120 at 316.

125 Ibid.

126 “Canada’s Jurisdiction,” supra note 122 at 113.

127 “Canada’s Arctic Jurisdiction,” supra note 120 at 317. See Article 76 of the 1982 UNCLOS, supra note 76. Pharand refers to Article 76 of the 1982 UNCLOS in support of his conclusion in the last sentence of the paragraph.

128 “Problèmes dans l’Arctique,” supra note 122 at 136.

129 “Canada’s Arctic Jurisdiction,” supra note 120 at 317.

130 “Problèmes dans l’Arctique,” supra note 122 at 136.

131 Ibid.

132 Annex II, Commission on the Limits of the Continental Shelf.

133 See Article 9 of Annex II to the 1982 UNCLOS, supra note 76.

134 “Sovereignty,” supra note 90 at 162.

135 “Canada’s Arctic Jurisdiction,” supra note 120 at 318–19.

136 “Delimitation of Maritime Boundaries,” supra note 122 at 365.

137 Ibid. at 383.

138 Ibid.

139 Gulf ofMaine Case (Canada and the United States), [1984] I.C.J. Rep. 246 [Gulf of Maine case].

140 “Problèmes dans l’Arctique,” supra note 122 at 136–37.

141 Ibid. at 137.

142 Ibid.

143 Canada’s Arctic Waters, supra note 63.

144 Ibid. at 1 .

145 Ibid.

146 Ibid. at 11. See Pharand’s discussion of the Papal Bull Inter Caetera (1493) and the treaties of Tordesillas (1494) and Saragossa (1529) between Spain and Portugal (at 4).

147 Ibid. The 1878 joint address by the House of Commons and Senate of Canada to the British Parliament requested a formal transfer of all Arctic lands and islands lying between the 141 st meridian of longitude and the series of straits between Ellesmere Island and Greenland. The reason for the address, reports Pharand, “was the uncertainty of the extent of the land and territories transferred to Canada by Great Britain in 1870” (at 4). He adds that the British transfer of 1880 “does not mention the sector lines and confines itself to territories, possessions and islands” (at 11 ).

148 Ibid. at 5 and 11 .

149 This map as well as the 1897 map showing the provisional northern districts of Canada, including Franklin District, are reproduced in Pharand’s book. Ibid. at 6 and 7.

150 Canada’s Arctic Waters, supra note 63 at 1. On 20 February 1907, Senator Poirier proposed his now famous resolution: “That it be resolved that the Senate is of opinion that the time has come for Canada to make a formal declaration of possession of the lands and islands situation in the north of the Dominion, and extending to the North Pole.” In his speech in support of his motion, Senator Poirier declared that Canada owned all of the land within a pie-shaped sector extending from its continental coastlines up to the geographic North Pole. It was in fact a reference to Poirier’s resolution by one of his law school professors that first awakened Pharand’s interest in the Arctic.

151 Pharand considers the arguments of the main proponents of the boundary treaty theory, the American scholar David Hunter Miller and the Soviet writer W.L. Lakhtine. Ibid. at 12–17.

152 Ibid. at 26 [emphasis in the original].

153 As Pharand states, “[e]ven those who invoke the boundary treaties of 1825 and 1867 look to that concept to reinforce their case.” Ibid. at 28.

154 Pharand considers the United States’ reliance on the doctrine in the nineteenth century, that of various European powers with respect to colonial Africa, as well as that of Canada and Russia with respect to the Arctic.

155 Pharand reviews a number of international decisions. With respect to the doctrine of contiguity as it applies to lands and islands, Pharand discusses the Aves Island case (1865), the Island of Bulama case (1870), the Monks Islands case (1885), the British Guyana case (1904), the Island of Palmas case (1928), the Eastern Greenland case (1933), the Minquiers and Ecrehos case (1953), and the Western Sahara case (1975). Canada’s Arctic Waters, supra note 63 at 30–36, with references at 90. With respect to the role of contiguity for the delimitation of the continental shelf, Pharand examines the North Sea Continental Shelf Cases ( 1969), the Anglo-French Channel Continental Shelf Case ( 1977), the Tunisia /Libya Continental Shelf Case ( 1982 ), and the Gulf of Maine Case ( 1984). Ibid. at 36–37, with references at 82–83.

156 Among the doctrinal opinions scrutinized by Pharand, are those belonging to the French jurist Fauchille, the American jurist D.H. Miller, the English writer M.F. Lindley, the Soviet writer W.L. Lakhtine, and the British professors C.H.M. Waldock and H. Lauterpacht.

157 Canada’s Arctic Waters, supra note 63 at 42.

158 Ibid. at 43.

159 Ibid. [emphasis in the original].

160 Ibid. at 46–63.

161 Ibid. at 79.

162 Ibid.

163 Ibid.

164 Ibid.

165 Lee, E. G., “Canadian Practice in International Law during 1973 as Reflected Mainly in Public Correspondence and Statements of the Department of External Affairs – Note” (1974) 12 C.Y.I.L. 279.

166 “Historic Waters,” supra note 89.

167 See for example “The Northwest Passage,” supra note 54; “Canada’s Jurisdiction,” supra note 122; “Canada’s Arctic Jurisdiction,” supra note 120; and “Legal Régime,” supra note 122, among others.

168 Canada’s Arctic Waters, supra note 63 at 105.

169 Ibid. at 97.

170 Ibid. at 98.

171 Ibid. at 101.

172 Ibid. at 105.

173 Ibid. at 102.

174 Fisheries Case (United Kingdom v. Norway) [1951] I.C.J. Rep. 116 [Norwegian Fisheries case].

175 Canada’s Arctic Waters, supra note 63 at 102. Pharand also relies on Dr. L.M. Drago’s dissenting opinion in the North Atlantic Coast Fisheries Arbitration of 1910: L.M. Drago, North Atlantic Coast Fisheries Case, [1961] Scott’s Hague Court Reports 195 at 20O. He also refers to the 1977 arbitral award in the English Channel Continental Shelf Case between France and the United Kingdom, (1979) 54 I.L.R. 98.

176 Canada’s Arctic Waters, supra note 63 at 103 [footnote omitted].

177 Ibid. [footnote omitted].

178 Ibid. at 105.

179 “Arctic Waters,” supra note 2 at 9.

180 Canada’s Arctic Waters, supra note 63 at 113.

181 Ibid. at 122.

182 For a discussion of various expeditions, see ibid. at 114–20.

183 According to Pharand, “[m]ost of those annual patrols were carried out with a Royal Canadian Mounted Police component and continued until the late 1950s. “Arctic Waters,” supra note 2 at 9.

184 Ibid.

185 The pollution prevention and shipping safety regulations were adopted under the 1970 Arctic Waters Pollution Prevention Act, R.S.C. 1970 (1st Supp.), c.2, amended S.C. 1977–78, c. 41 .

186 In 1977, Canada instituted the NORDREG reporting system, which provides for all ships to report to the Canadian Coast Guard before entering the waters of the Arctic archipelago.

187 “Arctic Waters,” supra note 2 at 13.

188 Ibid.

189 Canada’s Arctic Waters, supra note 63 at 125.

190 Statement in the House of Commons by Secretary for External Affairs Joe Clark, 10 September 1985, reproduced in Statements, Series 85/49, at 3.

191 Quoted in “Arctic Waters,” supra note 2 at 12.

192 Ibid.

193 Ibid.

194 Ibid.

195 Territorial Sea Convention, supra note 110.

196 Ibid. at 13–28.

197 Norwegian Fisheries case, supra note 174 at 128–29.

198 “Arctic Waters,” supra note 2 at 14.

199 Ibid.

200 Article 4 of the Territorial Sea Convention, supra note 110; and Article 7 of the UNCLOS, supra note 76.

201 “Arctic Waters,” supra note 2 at 15.

202 Ibid.

203 Ibid. at 16.

204 Ibid.

205 This conclusion is shared by other law of the sea experts, including William Burke and Bruce McKinnon. See Burke, W., “Remarks” to the 81st annual meeting (1987) Am. Soc. Int’l L. Proc. 82 ; and McKinnon, B., “Arctic Baselines: A Littore Usque Ad Litus” (1987) 66 Can. Bar Rev. 790 at 805.

206 “Arctic Waters,” supra note 2 at 17.

207 See Article 4 of the Territorial Sea Convention, supra note 110; and Article 7 of the UNCLOS, supra note 76.

208 Canada’s Arctic Waters, supra note 63 at 145.

209 Ibid. at 139.

210 Ibid. at 139–40 [emphasis in the original].

211 Ibid. at 146.

212 “Arctic Waters,” supra note 2 at 18.

213 Ibid.

214 US Department of State, Limits ofthe Seas, no. 106 (31 August 1987) at 1.

215 “Arctic Waters,” supra note 2 at 19.

216 Norwegian Fisheries case, supra note 174 at 133.

217 “Arctic Waters,” supra note 2 at 19.

218 Ibid.

219 Ibid. According to Pharand, “the calculation on land areas is restricted to islands and does not include the northern coastal strip above the Arctic Circle.”

220 Ibid.

221 Ibid. at 21. Pharand discusses the question of Inuit occupancy and use of the Arctic sea ice and its implication for Canada’s legal claim in an excellent article co-written with David VanderZwaag. Pharand, D. and VanderZwaag, D., “Inuit and the Ice: Implications for Canadian Arctic Waters” (1983) 21 C.Y.I.L. 53.

222 Canada’s Arctic Waters, supra note 63 at 164.

223 However, Pharand explains that the 1982 UNCLOS, supra note 76, Article 47, does provide a maximum length for oceanic archipelagos constituting the national territory of a state.

224 “Arctic Waters,” supra note 2 at 23.

225 Ibid.

226 Ibid.

227 Canada’s Arctic Waters, supra note 63 at 167.

228 Ibid. at 179. Pharand reminds us that “[w]hat is required here is not an acquiescence, as would be the case for historic waters, but simply an absence of opposition on the part of the generality of States or, in the words of the Court in the Fisheries Case, a ‘general toleration.’” Pharand then goes on to explain in some detail why the 1970 American protest cannot be considered an effective protest to prevent a consolidation of title from arising with respect to the areas in question (at 174). As for Canada’s vital interests, Pharand identifies three: the marine environment, the Inuit, and national security (at 175).

229 “Arctic Waters,” supra note 2 at 28.

230 The third Law of the Sea Conference was convened in New York in December 1973 with the aim of drafting a new comprehensive treaty. The conference, which involved over 160 nations, concluded in 1982 with the adoption of the UNCLOS, supra note 76.

231 Canada’s Arctic Waters, supra note 63 at 215.

232 Corfu Channel Case (UnitedKingdom v. Albania), 9 April 1949, [1949] I.C.J. Rep. 4 [Corfu Channel case].

233 “Arctic Waters,” supra note 2 at 30.

234 Ibid. at 34.

235 Ibid.

236 Ibid.

237 Bruël, E., International Straits, vol. 1 (London: Sweet and Maxwell, 1947) at 4243. However, Pharand adds that in more recent times, the most complete study has been by Caminos, Hugo, “The Legal Regime of Straits in the 1982 UN Convention on the Law of the Sea” (1987) 205 Rec. des Cours 13.

238 Reproduced in “Arctic Waters,” supra note 2 at 34.

239 Corfu Channel case, supra note 232 at 29.

240 Ibid. at 28.

241 Ibid.

242 The opinion of Pierre Calvé, emeritus professor and former dean of the Faculty of Education, University of Ottawa, interpreting the French text, reads: “It would seem at first that the judgment gives priority to the purely geographical factor, that is the geographical situation of the strait between two parts of the high seas, rather than the functional criterion (its use for international navigation), since the judgment states that the decisive criterion is its geographical situation. However, the fact that the authors took care to specify what they meant by this geographical criterion in explaining it by two sub-criteria linked by the coordinative conjunction ‘as well’ leaves no doubt as to their intention to consider those two sub-criteria as complementary and equivalent in importance.” Personal communication between Calvé and Pharand, 16 September 2005, reproduced in “Arctic Waters,” supra note 2 at 65–66, n 198.

243 Ibid. at 35.

244 Ibid. [emphasis in the original].

245 Norwegian Fisheries case, supra note 174, Pleadings, vol. II, at 555.

246 O’Connell, D. P., The International Law ofthe Sea, vol. 1 (Oxford: Clarendon Press, 1982) at 314. Pharand also quotes Baxter who has written that “international waterways must be considered to be those rivers, canals and straits which are used to a substantial extent by the commercial shipping or warships belonging to states other than the riparian nation or nations.” Baxter, R. R., The Law of International Waterways (Cambridge: Harvard University Press, 1964) at 45, reproduced in “Arctic Waters,” supra note 2 at 35 [emphasis added by Pharand].

247 Ibid.

248 Grunawalt, R. J., “United States Policy on International Straits” (1987) 18 Ocean Dev. & Int’l L. 445 at 456. Pharand comments: “Considering the title of the article and the statement quoted, it is difficult to attach weight to the disclaimer of the author, at 445, that his views ’do not reflect the official position of the U.S. Department of Defense or the government.’” Ibid. at 36, n. 214.

249 Ibid.

250 Ibid.

251 Ibid. at 37.

252 Ibid. at 42.

253 Ibid. at 41 .

254 As Pharand explains in more detail, “[i]n spite of the fact that the Manhattan accepted Canadian Navy Captain T C Pullen aboard as representative of Canada, and later had to be assisted by the CCGS Sir John A. Macdonald in both directions, the United States refused to ask prior authorization. The reason was that the Manhattan had intended to remain on the high seas throughout and exit through M’Clure Strait (Route 1 ) at the western end of the Passage. But, as it turned out, the Manhattan was forced to turn back about halfway through and use the narrow Prince of Wales Strait (Route 2), where it had to go through the territorial waters of Canada because of the presence of the small Princess Royal Islands.” Ibid. at 38.

255 “The Northwest Passage,” supra note 54 at 109.

256 “Arctic Waters,” supra note 2 at 39.

257 Ibid. at 42.

258 Ibid. at 37.

259 Ibid.

260 Ibid.

261 Ibid. at 37.

262 Ibid.

263 Ibid at 42.

264 Ibid.

265 Ibid.

266 Ibid. at 42–43.

267 Ibid. at 43.

268 Ibid. Pharand also insists that no right of innocent passage can be deemed to exist as a consequence of Canada’s ratification of the 1982 UNCLOS on 7 November 2003. Article 8(2) of the UNCLOS, supra note 76, provides that “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… shall exist in those waters.” However, nearly twenty years elapsed between the drawing of the baselines and Canada’s consent to be bound by Article 8(2). “By that time, the waters enclosed by the 1985 straight baselines had already acquired the firm status of internal waters, not subject to the right of innocent passage, and this status has not changed.” Ibid. at 44.

269 Ibid.

270 Ibid. at 48.

271 Ibid.

272 Ibid.

273 Ibid.

274 Ibid. at 52.

275 Canada’s Arctic Waters, supra note 63 at 235.

276 Agreement between the Government of Canada and the Government of the United States of America on Arctic Cooperation, 11 January 1988, Can. T.S. 1988 No. 29 (entered into force 11 January 1988).

277 “Arctic Waters,” supra note 2 at 55

278 “Problèmes dans l’Arctique,” supra note 122 at 163.

279 Working Group of the National Capital Branch of the C.I.I.A., The Arctic Environment and Canada’s International Relations,” Ottawa, March 1991, Appendix A, at 1–10.

280 McRae, D. M., Book Review of Canada’s Arctic Waters in International Law by D. Pharand (1987) 25 C.Y.I.L. 535. Ted McDorman has also referred to Donat Pharand as “[t]he foremost world authority on the international law of the sea in the Arctic. McDorman, T. L., Book Review of The Northwest Passage: Arctic Straits by Pharand, D. (1985) 9 Dal. L.J. 827 at 833.

281 McRae, supra note 280 at 537.

282 Lowe, V., Book Review of Canada’s Arctic Waters in International Law by Pharand, D. (1989) 39 I.C.L.Q. 703.

283 Rousseau, Ch., Book Review of Canada’s Arctic Waters in International Law by Pharand, D. (1989) 93 R.G.D.I.P. 464.

284 Flemming, B., Book Review of The Law ofthe Sea ofthe Arctic by Pharand, D. (1974) 12 C.Y.I.L. 369 at 370.

285 Prescott, V., Book Review of Canada’s Arctic Waters in International Law by Pharand, D. (1989) National Geographic Research 271.

286 Rutter, M. F., Book Review of The Law ofthe Sea ofthe Arctic by Pharand, D. (1975) 13 Alberta L. Rev. 371.

287 Hutchinson, D. N., Book Review of The Northwest Passage: Arctic Straits by Pharand, D. (1987) 36 I.C.L.Q. 172.

288 Jacquemart, C., Book Review of The Law of the Sea of the Arctic by Pharand, D. (1974) 20 A.F.D.I. 1125 at 1126.

289 Pharand is most proud, and rightly so, of a map of the Canadian Arctic archipelago, which he devised with engineering students at the University of Ottawa. Using small lights, Pharand can highlight the main route through the Northwest Passage (including red and green lights at the entrance to the passage). Pharand can also light up on his map the Canadian Arctic baselines and the outer limit of Canada’s exclusive economic zone.

290 Pharand has written at length on the legal aspects of Canada’s pollution control jurisdiction over the Arctic waters. Readers should refer, in particular, to Pharand, D., “Oil Pollution Control in the Canadian Arctic” (1971) 7 Tex. Int’l L.J. 45 ; Pharand, D., “Contiguous Zones of Pollution Prevention” (1973) 1 Syr. J. Int’l L. & Com. 257 ; Pharand, D., “Protection of the Marine Environment” (1977) 9 Ottawa L. Rev. 505 ; Pharand, D., “La contribution du Canada au développement du droit international pour la protection du milieu marin: le cas spécial de l’Arctique” (1980) 11 Études int’les 411 ; and Pharand, D., “Commercial Development and Environmental Policy,” in Pharand, D., Northwest Passage: Arctic Straits (Dordrecht: Martinus Nijhoff Publishers, 1988) at 122–33.

291 Arctic Straits, supra note 62 at 143.

292 “La théorie des secteurs,” supra note 27 at 145.

293 Farand, A., “Book Review of Northwest Passage: Arctic Straits by D. Pharand” (1984) 17(1) Études Int’les 218 at 219.

Donat Pharand: The Arctic Scholar

  • Suzanne Lalonde and Ronald St. J. MacDonald

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