^† This article was written originally in 1982 during the author’s LL.M. program at University College of the University of London. The author is indebted to the supervisor of the article, Professor William E. Butler, for his suggestions and encouragement throughout the writing and revising of it.

¹ See McRae, D. M. and Goundrey, D. J. , “Environmental Jurisdiction in Arctic Waters: The Extent of Article 234,” (1982) 16 U.B.C.L.R. 197 Google Scholar, at 199-200 for a description of proposals for marine transportation in the Arctic, which have become considerably more sophisticated since the voyage of the Man-hatten in 1969.

² For a discussion of techniques that promote use of the stable characteristics of sea ice, see Kingery, W. D. (ed.), Ice and Snow (Cambridge, 1963)Google ScholarPubMed, especially Parts III and IV. In particular, see Dykins, J. E., “Construction of Sea Ice Platforms,” at 289 Google Scholar; Kingery, W. D. and Coble, R. L., “Cracks in Sea Ice and Their Effect on Operations,” at 322 Google Scholar; and Assur, A., “Breakup of Pack-Ice Floes,” at 335 Google Scholar. Dykins indicates the change in focus: “In contrast to the early arctic expeditions that were principally for exploration, the modern engineer and scientist are diligently investigating the polar regions to find not only their effect on his total environment but also means for making this area more habitable” (at 289).

The potential of sea ice for purposes of habitation and industry is now being canvassed in the popular press: “Another possibility, admittedly far in the future, is that platforms on the Arctic ice may be built for industry or for accommodating the expanding world population": Immen, W., “Polar Cap Is Probed for Types of Sea Life and Minerals Below,” The Globe and Mail, Apr. 15, 1983, at 3.Google Scholar

Technology does not only enhance the possibility of megaprojects in the Arctic. It also enhances Inuit use of sea ice in various ways, for example, by introducing motorized oversnow and all-terrain vehicles which allow Inuit, who now tend to live in larger permanent communities rather than in seasonally occupied camps, to reoccupy distant hunting areas on sea ice if they so desire. See Freeman, M., “Contemporary Inuit Exploitation of the Sea-Ice Environment,” in Alan Cooke (ed.), Sikumiut: “the people who use the sea ice,” 89–90 (Ottawa: Canadian Arctic Resources Committee, 1984)Google Scholar (hereinafter described as Freeman, “Contemporary”). The various papers presented at the Sikumiut Workshop, which are collected in the Sikumiut publication, highlight Inuit use of sea ice, which is demonstrated not only by present-day evidence, but also by archaeological, anthropological, and historical evidence.

See Freeman, M. (ed.), Report: Inuit Land Use and Occupancy Project (Ottawa, 1976)Google Scholar (hereinafter described as Freeman, Inuit) for evidence of Inuit use of landfast sea ice in particular, which includes winter camps located on sea ice, and use for winter hunting, trapping, and fishing. Maps are provided in Volume 3, which indicate the extent of sea ice areas that are used by the Inuit. See also Stefansson, W., My Life with the Eskimo (London, 1913)Google Scholar and Nelson, R. K., Hunters of the Northern Ice (Chicago, 1969)Google Scholar. For a summary of Inuit use of sea ice, see Pharand, D. and Vanderzwaag, D. , “Inuit and the Ice: Implications for Canadian Arctic Waters,” (1983) 21 Canadian Yearbook of International Law 53, at 64-70.Google Scholar

³ Fitzmaurice, G., “The Problems of Non-Liquet: Prolegomena to a Restatement,” in Mélanges Offerts à Charles Rousseau: La Communauté Internationale 89 (Paris, 1974)Google Scholar; Stone, J., “Non Liquet and the Function of Law in the International Community,” (1950) 35 Brit. Y.B. Int’l L. 124.Google Scholar

⁴ M. J. Dunbar, “The Biological Significance of Arctic Ice,” in Cooke (ed.), op. cit. supra note 2 at 7, highlights the nature of sea ice as a “platform” or “substrate” apart from the water, as a medium of travel and of hunting for animals and humans, and as the base for specialized fauna. Similarly, Dykins, supra note 2, at 289, speaks of ice islands as “excellent platforms from which to conduct scientific studies.” Lundquist, T. R., “The Iceberg Cometh?: International Law Relating to Antarctic Iceberg Exploration,” (1977) 17 Nat. Res. J. 1 Google Scholar, at 23, points out that, at certain times, ice is capable of appropriation and possession in a way that water is not because some forms of it, such as icebergs, are “frozen and discrete.”

⁵ Even if it is valid to say that the very existence of general principles of international law precludes the argument that there are true gaps in the law, it is often difficult to discern the precise application of a general principle to a new set of circumstances. The general principles must be refined in content and detail in order for them to provide particular rules of international law which may rectify a so-called “gap” in the law. This point is made by Williams, S. and de Mestral, A. L. C., An Introduction to International Law 251 (Toronto, 1979).Google Scholar

⁶ See discussion in supra note 2.

⁷ This statement is particularly apt when applied to state practice. Some jurists, on the other hand, have directed attention to the legal ramifications of the use of sea ice in a manner comparable to land. See, for example, Hyde, C. H., International Law, Vol. 1, at 347-48 (Boston, 1947)Google Scholar. Furthermore, certain municipal courts have failed to assimilate ice to water: see R. v. Tootalik E4-321 (1969), 71 W.W.R. 435, revd. on other grounds (1970), 74 W.W.R. 740 (Terr. Court of the N.W.T.), and the opinion of King J. in The Lake Simcoe Ice and Cold Storage Company v. D. W. McDonald (1900), 31 S.C.R. 130, at 133-34, where he stated that ice cut from above water of a lake became the property of the one who owned the soil below the water, or if no one owned the soil, the one who “reduced it into possession as an article of personal property.” The legal character of the water below would remain unaffected.

⁸ When Canada and the Soviet Union legislated protective measures for ice-covered areas of the Arctic Ocean, which they justified in terms of the delicate marine environment which is easily threatened by polluting activities (see infra under “State Practice,” pp. 111-15, for legislation), they did not articulate the exact nature of their right to legislate for the area.

⁹ U.N. Doc. A/CONF. 62/122 (Oct. 7, 1982). Art. 234 deals with the right of coastal states to regulate certain activities in ice-covered areas within the limits of the exclusive economic zone.

¹⁰ This is not to say that the functional approach demonstrated by the Canadian and Soviet legislation is necessarily unsatisfactory; in some cases it may be the most practical approach. It has been suggested that the Trudeau government opted for the functional approach in 1970 because it “calculate[d] that a direct sovereignty claim over the water (i.e., as internal waters) stood little chance of winning international recognition. . . . The issue of pollution control emerged as a possibly more acceptable path to the establishment of Canadian authority in the region….” : Buzan, B. G., “Canada and the Law of the Sea,” (1982) 11 Ocean Dev. and Int’l Law 149, at 155.Google Scholar It has also been pointed out that the functional approach can provide a basis for a claim to sovereignty by historical title if more and more administrative measures are applied to an area over time: M. Denhez, “Inuit Rights and Canadian Arctic Waters,” in Cooke (ed.), op. cit. supra note 2, at 145.

¹¹ McRae and Goundrey, supra note 1, reach the conclusion that Art. 234 does not go so far as to allow a ban on shipping. Thus, navigation through the sea ice remains a primary consideration under the functional approach taken in Art. 234 and in the Canadian and Soviet legislation.

¹² See Platiel, R., “Natives Turn Their Gaze to Wealth Underground,” The Globe and Mail, Mar. 9, 1983, at 8:Google Scholar “A land claim by the Inuit of Labrador also involves coastal marine resources and the use of sea-ice that is anchored to the coast. They have opposed the Arctic Pilot Project (a $2.5-billion scheme to ship liquefied natural gas in tankers from the Arctic to Europe) and have lobbied to have tanker traffic along the Labrador coast south of the 60th Parallel subject to federal environmental review procedures and to get a say in agencies that regulate oil and gas tanker traffic in Labrador waters.”

¹³ Canada and the Soviet Union were chosen because they have legislated protective measures for Arctic waters. The United States is the third state, and represents a traditional approach to Arctic waters. Although worthwhile analysis could be made of other Arctic states, this task has been left to future studies because of confines of time and space. A brief summary of the basic positions of Norway and Denmark is to be found in Donat Pharand, The Law of the Sea of the Arctic 175-76 (Ottawa, 1973).

¹⁴ This study and proposal will concentrate on Arctic rather than Antarctic sea ice because of the differences between the two polar areas. Antarctica is governed by treaties which make it a special case, for the time being at least. It is a continent surrounded by ocean and ice, whereas the Arctic is an ice-covered ocean surrounded by land belonging to several states. Furthermore, there is no indigenous population in the Antarctic. Nevertheless, some of the comments and analysis made herein may prove relevant to Antarctic sea ice in the future, and references to the legal status of Antarctic sea ice will be made where they are pertinent. Since the primary objective of this comparative study is to document past and present attitudes of states and jurists towards sea ice, extensive quotations will be included, particularly when the sui generis characteristics of sea ice are mentioned. While this may be tedious at times, it is necessary in a preliminary article such as this one, the purpose of which is to provide a basis for further discussion of the issues involved in determining the legal status of sea ice.

¹⁵ According to the sector theory, all land, and possibly also all water and ice, north of the Arctic Circle within the meridians of longitude extending from the North Pole southward to the east and west points of the Arctic Circle that touch Canada, would be subject to Canadian sovereignty.

¹⁶ See Head, I. L., “Canadian Claims to Territorial Sovereignty in the Arctic Regions,” (1963) 9 McGill L.J. 300 Google Scholar and Pharand, op. cit. supra note 13, at 134-44. These authors present a more complete survey of statements related to the sector theory, whereas the present study will refer only to those statements that have a direct bearing on whether sea ice is included within Canadian sovereignty.

¹⁷ Senator Poirier’s well-known speech introducing the sector theory to the Canadian Senate in 1907 referred only to land and islands: (1906-7) Debates of the Senate 266-73. Similarly, in 1925 the Minister of the Interior indicated that any claim in the Arctic was with reference to land only: (1925) 4 Debates of the House of Commons 3772-73. Canada’s attempt in 1921 to establish British sovereignty over Wrangel Island, which lies in the Soviet “sector,” provides further evidence that at that time Canada was more concerned with land claims in the Arctic, whether within the Canadian sector or not, than with claims to ice or ice-covered water: Hack-worth, G. H., Digest of International Law, Vol. 1, at 464 (Washington, 1940).Google Scholar

¹⁸ Head, supra note 16, at 208-9.

¹⁹ Pearson, L. B., “Canada Looks Down North,” (1946) 24 Foreign Affairs 638 CrossRefGoogle Scholar, at 638-39. This article was written when Mr. Pearson, who was later Secretary of State for External Affairs, was Canadian Ambassador to the United States.

²⁰ McConnell, W. H., “The Dispute on Arctic Sovereignty: A Canadian Appraisal,” (1973) 25 U. Fla. L.Rev. 465 Google Scholar, at 479. Although it is not certain what Mr. Pearson meant by “permanent ice,” it would probably include shelf ice and landfast ice.

²¹ (1956) 7 Debates of the House of Commons 6955.

²² (1957-58) 2 Debates of the House of Commons 1559.

²³ (1958) 4 Debates of the House of Commons 3652.

²⁴ See Granatstein, J. L., “A Fit of Absence of Mind: Canada’s National Interest in the North to 1968,” in Dosman, E. J. (ed.), The Arctic in Question 13, at 28 (Toronto, 1976).Google Scholar

²⁵ R.S.C. 1970, c. 2 (1st Supp.).

²⁶ (1970) 9 I.L.M. 601.

²⁷ These discrepancies are pointed out in Reid, R. S., “The Canadian Claim to Sovereignty over the Waters of the Arctic,” (1974) 12 Canadian Yearbook of International Law 1ll Google Scholar, at 116 and 119. The first statement was in ( 1969) 6 Debates of the House of Commons 6396; the second was in a speech given at South Porcupine, northern Ontario.

²⁸ Reid, supra note 27, at 119.

²⁹ (1970) 8 Canadian Yearbook of International Law 344.

³⁰ The trend partly reflects an increasing awareness of the environmental problems involved in use of the Arctic for commercial shipping and exploitation of offshore resources.

³¹ (1970) 6 Debates of the House of Commons 6028.

³² Pharand, op. cit supra note 13, at 174.

³³ See Legal Adviser Beesley’s, J. A. statement in (1972) 10 Canadian Yearbook of International Law 289 Google Scholar, and letter from the Legal Bureau in (1974) 12 Canadian Yearbook of International Law 282-83.

³⁴ Pharand, D., “Canada’s Arctic Jurisdiction in International Law,” (1983) 7 Dalhousie L.J. 315 Google Scholar, at 329. See statement by the Secretary of State for External Affairs in Minutes of Proceedings and Evidence of Standing Committee on External Affairs and National Defence, No. 24, May 22, 1957, at 6.

³⁵ A 1976 letter from the Legal Bureau regarding discussion of the Arctic Ocean at UNCLOS III stated that the Canadian delegation was participating actively at the Conference with a view to seeking international agreement on a “regime for the oceans, including the Arctic Ocean, which will be acceptable to Canada and consistent with Canadian interests”: (1977) 15 Canadian Yearbook of International Law 324 and 325. The letter referred to Art. 43 of the 1957 ICNT (now Art. 234 of the 1982 Convention on the Law of the Sea, supra note 9), which effectively endorses the 1970 Canadian Arctic Waters Pollution Prevention Act, supra note 25.

³⁶ See further under discussion of U.S. v. Escamilla (1972), 467 F. 2d 341, infra, under “The United States: Case-Law.”

³⁷ See Auburn, F. M., “International Law and Sea-Ice Jurisdiction in the Arctic Ocean,” (1973) 22 Int’l & Comp. L.Q. 552, at 555.CrossRefGoogle Scholar

³⁸ (1977) 5 Debates of the House of Commons 4590.

³⁹ See note dated Apr. 16, 1970 sent by Canada to the United States, supra note 31 and accompanying text.

⁴⁰ Pharand, D. , “The Legal Status of the Arctic Regions,” (1979) 163 Recueil des Cours 49, at 85.Google Scholar

⁴¹ See supra note 25.

⁴² Subs. 3 (1) defines the area of application of the Act by reference to “waters,” with no mention of the sea ice covering these waters. Subs. 3(2) defines more specifically the waters which are within the scope of the Act, “whether the waters so described or such adjacent waters are in a frozen or a liquid state.” Note, however, that the preamble to the Act differentiates between “water, ice and land areas of the Canadian arctic” when talking of preservation of the ecological balance of the Arctic.

⁴³ R.S.C. 1970, c. N-22.

⁴⁴ R. v. Tootalik, supra note 7.

⁴⁵ The relevant section is the following: “2. In this Act ’Territories’ means the Northwest Territories, which comprise (a) all that Part of Canada north of the Sixtieth Parallel of North Latitude, except the portions thereof that are within the Yukon Territory, the Province of Quebec or the Province of Newfoundland.…”

⁴⁶ Auburn, F. M., Antarctic Lam and Politics 37 (London, 1982)Google Scholar. Note that at that time, the breadth of Canada’s territorial sea was 3 miles rather than 12 miles.

⁴⁷ R. v. Tootalik, supra note 7, at 443.

⁴⁸ Auburn, op. cit. supra note 46, at 23.

⁴⁹ R. v. Tootalik, supra note 7, at 439-40.

⁵⁰ Green, L. C., “Canada and Arctic Sovereignty,” (1970) 48 Can. Bar Rev. 740 Google Scholar, at 751. Although Auburn regards the Tootalik case as an application of the sector theory, he goes on to say that “[a]s there was no discussion in Tootalik of the precise location of the offence, nor of baselines, internal waters or territorial waters, the assertion of jurisdiction and sovereignty must be taken as applicable to all fast sea-ice of a semipermanent nature”: Auburn, supra note 46, at 37.

⁵¹ See Parry, Clive (ed.), The Consolidated Treaty Series, Vol. 75, at 95 (1824-25) (Dobbs Ferry, N.Y., 1969).Google Scholar

⁵² See Clive Parry (ed.), ibid., Vol. 134, at 331 (1867).

⁵³ Butler, William E., Northeast Arctic Passage 72 (Alphen aan den Rijn, The Netherlands, 1978).Google Scholar

⁵⁴ Ibid., 72.

⁵⁵ See infra, 125-29.

⁵⁶ Butler, op. cit. supra note 53, at 73.

⁵⁷ Ibid., 77.

⁵⁸ W. 0streng, “The Continental Shelf-Issues in the ’Eastern’ Arctic Ocean, Implications of UNCLOS III, with Special Reference to the Informal Composite Negotiating Text (ICNT),” in Gamble, J. K. Jr., (ed.), Law of the Sea: Neglected Issues 165, Proceedings of the Law of the Sea Institute Twelfth Annual Conference (1979).Google Scholar

⁵⁹ Indeed, the presence of American icebreakers in her northern waters in 1965 was largely overlooked until they attempted to use the Vil’kitskii Strait, whereupon the Soviet Union objected on the basis that the strait was territorial waters, not on the basis that it was within the Soviet sector: Pharand, D., “Soviet Union Warns United States Against Use of Northeast Passage,” (1968) 62 Am. J. Int’l L. 927.CrossRefGoogle Scholar

⁶⁰ Pharand, supra note 13, at 170-71.

⁶¹ Treshnikov, A. F. , “Soviet Research in the Arctic” (1972)CrossRefGoogle Scholar, quoted in Pharand, supra note 40, at 90-92.

⁶² Interview with E. Armstrong, Dr. Terence, Scott Polar Research Institute, Cambridge, England (May 7, 1982).Google Scholar

⁶³ “Rules on Marine Commercial Fishing in the Priamurskii General-Guber-natorstvo,” (1969) 6 Soviet Statues and Decisions 24. The territorial waters were “computed from the line of lowest ebb tide or from the edge of stationary coastal ice. …”

⁶⁴ See Art. 3 of Statute on the State Boundary of the USSR, in Butler, W. E., Collected Legislation of the USSR and Constituent Union Republics, Vol. 4 Dobbs Ferry, 1979).Google Scholar

⁶⁵ Butler, ibid., Vol. 2.

⁶⁶ Butler, op. cit. supra note 53, at 76.

⁶⁷ Butler, op. cit. supra note 64, Vol. 1.

⁶⁸ Johnston, D. M. (ed.), Arctic Ocean Issues in the 1980’s 18 (Hawaii: The Law of the Sea Institute, 1982).Google Scholar

⁶⁹ Janis, M. W. and Daniel, D. C. F., The USSR: Ocean and Ocean Law (Law of the Sea Institute Occasional Paper Series, 1974), at 7–8 Google Scholar; Butler, op. cit supra note 53, at 130.

⁷⁰ See supra note 52 and accompanying text.

⁷¹ G. H. Hackworth, op. cit. supra note 17, at 450.

⁷² Ibid., 463-64, quoting a statement of the Secretary of the Navy sent to the Secretary of State in 1929.

⁷³ See Hyde, op. cit. supra note 7 at 348, n. 5, quoting the New York Times of May 23, 1937.

⁷⁴ Whiteman, M. M., Digest of International Law (United States, 1963), Vol. 2, at 1268.Google Scholar

⁷⁵ Pharand, op. cit. supra note 13, at 170.

⁷⁶ Quoted in Pharand, ibid.

⁷⁷ (1970) 64 Am. J. Int’l L. 928.

⁷⁸ Whiteman, op. cit. supra note 74, at 1232-37.

⁷⁹ Hayton, R. D., “The Antarctic Settlement of 1959,” (1960) 54 Am. J. Int’l L. 349 CrossRefGoogle Scholar, at 360; Bernhardt, J. P. A., “Sovereignty in Antarctica,” (1975) 5 Cal. W. Int’l L.J. 397 Google Scholar, at 308-9. For a contrary view, see Auburn, op. cit. supra note 46, at 136.

⁸⁰ See further infra 117-18 under “The United States: Case-Law.”

⁸¹ U.S. v. Escantilla, supra note 36.

⁸² For thorough discussions of the case, see Auburn, supra note 37 and Pharand, op. cit supra note 13, at 199-804.

⁸³ See supra note 71 and accompanying text.

⁸⁴ See supra note 37 and accompanying text.

⁸⁵ Auburn, supra note 37, at 553-54. Auburn has pointed out elsewhere (op. cit. supra note 46, at 189) that the wording of s. 7 of 18 U.S.C., upon which jurisdiction was based, precluded the contention that T-3 was in the nature of a normal island.

⁸⁶ Pharand, op. cit. supra note 13, at 202-4.

⁸⁷ See preamble to the Antarctic Treaty, supra note 78.

⁸⁸ В. P. Smith points out that Art. 43 (now Art. 234) of the 1976 SNT represented a compromise between those states that stressed the general application of all law of the sea provisions and those that preferred a regime which took into account the uniqueness of the Arctic Ocean: “Canadian and Soviet Arctic Policy: An Icy Reception for the Law of the Sea?,” (1976) 16 Va. J. Int’l L. 609, at 628.

⁸⁹ Clute, A. R., “The Ownership of the North Pole,” (1927) 5 Can. Bar Rev. 19, at 21.Google Scholar

⁹⁰ Pharand, op. cit. supra note 13, at 153-57 and Pharand, supra note 40, at 84.

⁹¹ See further infra 121-23 under Canada: “The Sovereignty Approach” and infra 123-25 under “Ice Islands as Vessels and Other New Theories.” Note that other writers who argue certain kinds of sea ice should be given a status other than high seas would, by implication, leave the remaining kinds as high seas. These writers will be discussed under the following sections.

⁹² A good illustration of the kind of questioning involved in these arguments is Sharon Williams’ query: “Where the ice is thin and broken by ships it must surely be treated as water but where, as in certain points off Baffin Island the ice is so thick and long-lasting as to extend some 40 miles from land, should it not enjoy the same status?”: op. cit. supra note 5, at 131.

⁹³ Cohen, Maxwell, “Polar Ice and Arctic Sovereignty,” Saturday Night, Vol. 73, No. 18 (Aug. 30, 1958), 12 at 36.Google Scholar

⁹⁴ L. C. Green, supra note 50, at 760.

⁹⁵ It is not clear whether he means to designate fast ice by the term “landlocked ice” : Inch, D. R., “An Examination of Canada’s Claim to Sovereignty in the Arctic,” (1962) 1 Man. L. Sch. J. 32, at 53.Google Scholar

⁹⁶ Ibid.

⁹⁷ McConnell, W. H., “The Dispute on Arctic Sovereignty: A Canadian Appraisal,” (1973) 25 U. Fla. L. Rev. 465, at 483.Google Scholar

⁹⁸ Ibid., 484.

⁹⁹ Ibid., 491.

¹⁰⁰ Pharand, op. cit. supra note 13, at 323.

¹⁰¹ Ibid., 184.

¹⁰² Ibid., 187-88.

¹⁰³ Pharand and Vanderzwaag, supra note 2, at 64-70.

¹⁰⁴ Cruickshank, D. A., “Arctic Ice and International Law: The Escamilla Case,” (1971) 10 W. Ont. L. Rev. 178, at 189.Google Scholar

¹⁰⁵ Ibid., 193-94.

¹⁰⁶ Inch, supra note 95, at 53.

¹⁰⁷ Pharand, supra note 40, at 100-5. See also Pharand, supra note 34, at 328. Whereas Cruickshank (supra note 104, at 187) regards occupied ice floes as too unstable to be subsumed under the same regime as occupied ice islands, Pharand would treat the two forms of sea ice together (Pharand, supra note 40, at 88).

¹⁰⁸ Pharand, supra note 40, at 95.

¹⁰⁹ Graham, G. F., “Ice in International Law,” (1977)Google Scholar 7 Thesaurus Acroasium 489, at 49a and 494.

¹¹⁰ Ibid., 493.

¹¹¹ W. E. Butler, op. cit. supra note 53, at 75, where he cites Martens, F. F., Sovremennoe mezhdunarodnoe pravo tsivilizovannykh narodov, I, at 384 (St. Petersburg, 5th ed., 1905).Google Scholar

¹¹² W. E. Butler, ibid., 71-86.

¹¹³ See supra note 54 and accompanying text.

¹¹⁴ Taracouzio, T. A., Soviets in the Arctic 348–49 (New York, 1938)Google Scholar, quoting Korovin, E. A., “Problema Vozdushnoi Okkupatsii,” Voprosy Vozd. Prava, Vol. I, at 109–10.Google Scholar

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¹¹⁸ Taracouzio, op. cit. supra note 114, at 352.

¹¹⁹ Lapenna, Ivo, Conceptions soviétiques de droit international public (Paris, 1954)Google Scholar at 260, quoting Vychnepolski, S. A., “K Probleme Pravovoga Rezima Arkticeskoy Oblasti,” Sovetskoye Gosudarstvo i Pravo, No. 7 (1952), 36 at 45.Google Scholar

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¹²⁴ The main ice shelves in the Arctic lie off the coast of Ellesmere Island and so would be of more concern to Canadians: Pharand, op. cit. supra note 13, at 183-86.

¹²⁵ The lack of American interest in the Arctic Ocean has been noted in Johnston (ed.), op. cit. supra note 68, at 5 and 7.

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¹³¹ N. M. Meyers, “Operational Considerations: New Legal Issues,” in Schatz (ed.), op. cit. supra note 129, at 25, at 26 and 34.

¹³² Moore, Joan E., “The Polar Regions and the Law of the Sea,” (1976) 8 Case W. Res. J. Int’l L. 204, at 205.Google Scholar

¹³³ Whiteman, op. cit. supra note 74, at 1266-70.

¹³⁴ See Pharand, op. cit. supra note 13, at 148-49, where he quotes Ben Partridge, “The White Shelf: A Study of Arctic Ice Jurisdiction,” (1961) 87 U.S. Naval Institute Proceedings, No. 9, 51, at 55 and 57.

¹³⁵ C. H. Hyde, supra note 7, at 348.

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¹³⁸ Bernhardt, supra note 136, also makes the analogy at 305.

¹³⁹ Zuccaro, supra note 137, at 418-19.

¹⁴⁰ Fisheries case, [1951] I.C.J. Rep. 116.

¹⁴¹ Zuccaro, supra note 137, at 419, n. 77.

¹⁴² Lundquist, supra note 4, at a8.

¹⁴³ Bassiouni, M. Cherif, “Theories of Jurisdiction and Their Application in Extradition Law and Practice,” (1974) 5 Cal. W. Int’l L.J. 1, at 35.Google Scholar

¹⁴⁴ Lundquist, supra note 4, at 23.

¹⁴⁵ Ibid., 29.

¹⁴⁶ Ibid., 34-40.

¹⁴⁷ Zuccaro, supra note 137, at 419-20.

¹⁴⁸ Other English terms which are used when translating the words used by Soviet jurists are “stationary ice attached to the shore” (see Buder, op. cit. supra note 121, at 32, quoting A. N. Nikolaev) and “permanent ice fields affixed to the coast” (see Butler, op. cit. supra note 53, at 76).

¹⁴⁹ I attempt to combine aspects of both the Inuit approach and the scientific approach to the physical characteristics, the latter being best evidenced by the definitions which are given of the various kinds of sea ice (infra). The Inuit approach is described by Freeman, “Contemporary,” supra note 2, at 76, as “synthetic” rather than “analytic.” A number of “dynamic processes and functional attributes” form the basis of the Inuit classification, whereas the scientific “analytic” approach is based more purely on the physical properties of ice.

¹⁵⁰ This freedom of the seas would of course be eroded by Canadian and Soviet regulatory legislation directed at polluting activities, sanctioned by Art. 234 of the 1982 Convention on the Law of the Sea. Canada’s state practice appears to wafHe between the desire to claim and protect the waters and ice of the Arctic north of her, and a wish to allow maritime nations freedom of navigation through, reflecting the pressure of maritime nations such as the United States.

¹⁵¹ See, for example, Richardson, I. L. M., “New Zealand’s Claim in the Antarctic,” (1957) 33 N.Z.L.J. 38 Google Scholar, at 40 and Smedal, Gustav, Acquisition of Sovereignty over Polar Areas 30 (Oslo, 1931).Google Scholar

¹⁵² Sir Fitzmaurice, G. G., “The General Principles of International Law Considered from the Standpoint of the Rule of Law,” (1957) 92 Recueil des Cours 5, at 155.Google Scholar

¹⁵³ Auburn, op. cit. supra note 46, at 34-35.

¹⁵⁴ Ibid., 35.

¹⁵⁵ Armstrong, T., Roberts, B., and Swithinbank, C., Illustrated Glossary of Snow and Ice 26 (Cambridge, 1973) (hereinafter described as Armstrong and Roberts).Google Scholar

¹⁵⁶ Ibid., 25.

¹⁵⁷ Armstrong, supra note 62.

¹⁵⁸ Zuccaro, supra note 137, at 419.

¹⁵⁹ Pharand, op. cit. supra note 13, at 187.

¹⁶⁰ Auburn, op. cit. supra note 46, at 36-37, suggests an arbitrary figure of 50 miles.

¹⁶¹ Bernhardt, supra note 136, at 310.

¹⁶² (1933) P.C.I.J. Ser. A/B No. 53.

¹⁶³ Inuit do not differentiate between fast ice and land in terms of use and occupancy: Mills, Hal, “Ocean Policy Making in the Canadian Arctic,” in Ocean Policy and Management in the Arctic 28 (Ottawa: Canadian Arctic Resources Committee, 1984).Google Scholar

¹⁶⁴ Armstrong and Roberts, op. cit. supra note 155, at 14.

¹⁶⁵ Jacobs, J, D., Barry, R. G., and Weaver, R. L., “Fast Ice Characteristics, with Special Reference to the Eastern Canadian Arctic,” Polar Record, Vol. 17, No. no (May 1975), 521, at 523 (hereinafter described as Jacobs and Barry).CrossRefGoogle Scholar

¹⁶⁶ See, for example, Peter J. Usher, “Inuit Land Use in the Western Canadian Arctic,” in Vol. ι of Freeman, Inuit, op. cit. supra note 2, at 22. See also Dunbar, supra note 4, who stresses the “ice-edge ecosystem,” and Denhez, supra note 10, who stresses that the edge of fast ice is often the boundary for “land-based” transportation. See also Berger, T. R. , Northern Frontier, Northern Homeland, The Report of the MacKenzie Valley Pipeline Inquiry, Vol. I, at 54.Google Scholar

¹⁶⁷ Jacobs and Barry, supra note 165, at 522, observe that “[i]n contrast to the rugged terrain of much of the land in the eastern Canadian Arctic, the smooth snow-covered ice is easily travelled by dog team or, nowadays, by snowmobile, pulling the traditional kumatik.”

¹⁶⁸ Nelson, op. cit. supra note 2, at 16-24.

¹⁶⁹ Ibid., 87. A “hummock” is defined as “[a] mound or hillock of broken floating ice forced up by pressure” in Armstrong and Roberts, op. cit. supra note 155, at 19.

¹⁷⁰ Nelson, op. cit. supra note 2, at 33.

¹⁷¹ Kingery and Coble, supra note 2, at 322. For example, a ten per cent greater ice thickness is required to carry a given weight when cracks one to two inches wide are present. Further, it is known that cracks tend to form in positions parallel to the shore related to an “action radius,” which is related to ice thickness. Other simple guidelines may be followed such as not parking heavy loads on cracks or allowing them to pass over areas where several wide cracks intersect. Parking should only be permitted at distances equal to the load influence radius from a crack or free edge.

¹⁷² Jacobs and Barry, supra note 165, at 524, point out that the continuous accumulation of snow on fast ice throughout the winter and early spring may depress the ice surface below water level, leading to flooding and development of a slush area. Consequently, an apparently dry area may conceal a layer of slush-covered ice.

¹⁷³ Auburn, op. cit. supra note 46, at 35, points out that the Rann of Kutch, a seasonally flooded marsh which was the subject of a boundary dispute between India and Pakistan, was implicitly assimilated by the tribunal to land. See Munkman, A. L. W., “Adjudication and Adjustment: International Judicial Decision and the Settlement of Territorial and Boundary Disputes,” (1972-73), 46 Brit. Y.B. Int’l L. I, at 69.Google Scholar

¹⁷⁴ Indeed, it has been observed that navigation through areas covered by sea ice is costly and that “in spite of rapid advances in transport technology, not yet sufficiently safe to be considered routine”: Polar Regions Atlas (C.I.A., 1978), at 13. The use which Inuit make of the fast ice area would be severely affected by navigation through it: Peter Jull and Nigel Bankes, “Inuit Interests in the Arctic Offshore,” in Ocean Policy and Management in the Arctic, op. cit. supra note 163, at 105.

¹⁷⁵ Armstrong and Roberts, op. cit. supra note 155, at 24.

¹⁷⁶ Louis Rolland suggested something like this as far back as 1904; see (1904) 11 Revue Générale de Droit International Public 340, at 344. Pharand shows that Inuit use of fast ice would provide evidence for drawing straight baselines around the Canadian Arctic Archipelago: Pharand and Vanderzwaag, supra note 103, at 64–70.

¹⁷⁷ Jacobs and Barry, supra note 165, at 523.

¹⁷⁸ Nelson, op. cit. supra note 2, at 33.

¹⁷⁹ “The Arctic rule is that in winter the ice frozen fast to the beach runs out to sea one to several miles. That nearest the land is usually grounded solidly upon a shallow bottom. But as you proceed from the land you come to the flaw, or floe, the place where the edge of the shelf frozen fast to the land meets the moving pack”: Stefansson, V., Arctic Manual 358 (New York, 1945).Google Scholar

¹⁸⁰ Armstrong, supra note 62.

¹⁸¹ The baseline would be similar to a straight baseline, the waters landward being internal waters: Pharand, supra note 34, at 331, points out that Canada has the choice of relying either on the Fisheries case, [1951] I.C.J. Rep. 116, or the Territorial Sea Convention of 1958 and the 1982 Law of the Sea Convention. The two conventions would permit innocent passage through the landward waters.

¹⁸² Such a balancing will itself be a delicate procedure, and must take place in consultation with Inuit in each area: See summary of Inuit Circumpolar Conference Statement in The Globe and Mail, Aug. 1, 1983, at 9, and Nunavut Constitutional Forum, Building Nunavut: A Discussion Paper Containing Proposals for an Arctic Constitution 41 (Ottawa, 1983).

¹⁸³ “Pack Ice” is defined as “[a]ny area of sea … ice other than fast ice, no matter what form it takes or how it is disguised” : Armstrong and Roberts, op. cit supra note 155, at 31.

¹⁸⁴ See infra 146-51 under “Ice Islands, Ice Floes and Icebergs: Limited Claims of Sovereignty” for treatment of these forms of sea ice.

¹⁸⁵ Polar Regions Atlas, op. cit. supra note 174, at 13. See also Pharand, op. cit. supra note 13, at 153-57.

¹⁸⁶ Dyson, J. L., The World of Ice 114 (London, 1963).Google Scholar

¹⁸⁷ “The Northern Sea Route, 1978,” Polar Record, Vol. 19, No. laa (May 1979), 496 at 501.

¹⁸⁸ Butler, op. cit. supra note 53, at 147.

¹⁸⁹ “The bottom [of the Beaufort Sea] was found to be dotted with massive cones of antediluvian ice (’pingoes’) reaching up to forty feet beneath the surface, and gouged by shifting ice ’keels.’ The hazard to navigation constituted by the pingoes is obvious. The significance of the ice keels is that they make the laying of underwater/under-the-ice pipelines impossible”: J. Gellner, “The Military Task: Sovereignty and Security, Surveillance and Control in the Far North,” in Dosman (ed.), op. cit. supra note 24, at 85, 96. Even minimal navigation of oil tankers may, however, pose serious environmental hazards to the Arctic.

¹⁹⁰ See supra note 174.

¹⁹¹ Armstrong, supra note 62.

¹⁹² The fears of states that temporary sovereign claims over occupied ice islands, floes, and appropriated icebergs will threaten the more general freedom of the seas in the pack ice area will be eliminated since freedoms of overflight and subsurface navigation, and so on, would be permitted by the designation of pack ice in general as high seas.

¹⁹³ Butler, op. cit. supra note 53, at 76, raises this issue.

¹⁹⁴ Armstrong, supra note 62.

¹⁹⁵ Whiteman, op. cit. supra note 74, Vol. 9, at 201-2.

¹⁹⁶ Graham, supra note 109, at 493.

¹⁹⁷ “Ice Island” is defined as “[a] form of tabular berg found in the Arctic Ocean, with a thickness of 30 to 50 m and from a few thousand square m to 500 square km in area.” Tabular bergs are flat-topped and tend to break away from ice shelves, whereas icebergs tend to break away from glaciers: Armstrong and Roberts, op. cit. supra note 155, at 20, 23, and 38. The definition of “floe” is “[a] piece of floating ice other than fast ice or glacier ice”: Armstrong and Roberts, op. cit. supra note 155, at 12.

¹⁹⁸ Armstrong, supra note 62.

¹⁹⁹ Polar Regions Atlas, op. cit. supra note 174, at 13.

²⁰⁰ Contrary to Antarctic ice islands, Arctic islands are flat and have fewer cracks due to the relative lack of swell in the Arctic Ocean: Armstrong, supra note 62.

²⁰¹ Polar Regions Atlas, op. cit. supra note 174, at 13.

²⁰² Armstrong, T. E. , “Soviet Drifting Stations, 1979-80,” Polar Record, Vol. 20, No. 127 (Jan. 1981), 373.Google Scholar

²⁰³ Assur, supra note 2, at 335.

²⁰⁴ Ibid., 336.

²⁰⁵ In a case where no state had a clear title, the uncertain precedent set in the Escamilla case could be resorted to, whereby the nationality of the accused would determine jurisdiction.

²⁰⁶ Pharand, supra note 40, at 88 and 100.

²⁰⁷ See the 1983 Convention on the Law of the Sea, Art. 56(1) and Part XII. See also Part XIII regarding marine scientific research. Pharand, supra note 40, at 100-5, discusses possible jurisdiction in various areas of the Arctic Ocean.

²⁰⁸ Pharand, supra note 40, at 95.

²⁰⁹ Pharand, op. cit. supra note 13, at 157.

²¹⁰ Lundquist, supra note 4.

²¹¹ See articles by Bishop, W. W. Jr., Chamoux, Jean-Pierre, and Burton, S. J. in Husseiny, A. A. (ed.), Iceberg Utilization (New York, 1978), especially the Chamoux article, at 601.Google Scholar