The conventions are completely silent as to the legal requirements for the existence of historic waters. However, a number of authoritative studies have been made and it is generally agreed that three requirements must be met before a claim to historic waters is duly established. These are: (1) the exclusive exercise of State authority; (2) long usage or the passage of time; and (3) the acquiescence of foreign States. In addition to these requirements, three related questions must also be considered: (1) the legal effect of protest; (2) the vital interests of the claimant State; and (3) the burden of proof. This chapter will address those six points in succession.

Exclusive exercise of State authority

Since a claim to historic waters is one over a maritime area which the coastal State considers as an integral part of its national territory, the type of jurisdiction exercised over that area should be essentially the same as that being exercised on the rest of the territory. More precisely, the coastal State must exercise an effective control over the maritime area being claimed to the exclusion of all other States. Naturally, the extent of control will vary depending on a number of factors such as the size of the maritime area, its remoteness and the degree of its usability. The actual control might be limited, but yet sufficient, in remote areas. In the words of Professor O'Connell, ‘just as in the case of remote and little used seas, very little in the way of effective exercise of sovereignty need be required’, to show that a State took whatever action was necessary to assert and maintain its authority and control over the area in question.

Geographical requirements for a coastal Archipelago

The geography required for the application of the straight baseline system was laid down by the International Court of Justice in the Fisheries Case of 1951. Having stated that the breadth of the territorial sea should be measured from the low-water mark, the Court examined three methods of implementing the low-water mark rule: the tracé parallèle, the arcs of circles, and the straight baseline system. It was in its discussion of the method of the tracé parallèle that the Court, in effect, described the kind of coast required for the application of the straight baseline system.

Two observations should be made about this passage. First, the straight baseline system is made applicable to two types of coast:' where it is deeply indented or where it is bordered by an Archipelago'. Of course, a coast could have both of those characteristics either in whole or in part. The other observation relates to the second type of coast, that is ‘where it is bordered by an archipelago such as the “skjaergaard”’.

It is generally recognized that the doctrine of contiguity forms the basis of the sector theory. Even those who invoke the boundary treaties of 1825 and 1867 look to that concept to reinforce their case. This section attempts to determine the extent to which States and international tribunals have relied on contiguity. This is followed by an appraisal of this concept as a principle of international law capable of generating title or sovereignty.

Contiguity in State practice

The notion of contiguity appeared in international law when principles for the acquisition of sovereignty over new territories were being developed. Acquisition through the act of discovery, accompanied by a formal taking of possession, having led to abuses, the Roman Law principle for the acquisition of property was introduced. It required the fulfilment of two conditions: the open intent to occupy (animus) and the actual occupation of a well-defined property (corpus). The second condition being difficult or perhaps impossible to fulfil in many instances, the doctrine of contiguity or geographic proximity was developed.

Under this doctrine, the effective occupation of part of a region or territory gave title to the whole of the unoccupied region or territory proximate enough to be considered as a single geographic unit with the occupied portion. The same doctrine, with the occasional nuance, has been presented under different names, in particular the following: proximity, propinquity, hinterland, adjacency, continuity, geographic unity and region of attraction.

The first use by a State of the doctrine of contiguity seems to have been made in 1844 during the Oregon controversy between the United States and Great Britain.

The straight baseline system of delimiting territorial waters was developed by Norway, beginning with its first Royal Decree of 1812. The system was approved by the International Court in 1951, and incorporated in the Convention on the Territorial Sea of 1958 and in the Law of the Sea Convention of 1982. Under this system, where a coast is deeply indented or is bordered by an Archipelago, it is permissible to draw straight baselines, across the indentations and between the outermost points of the islands, from which the territorial sea is measured. This geographic situation is commonly referred to as that of a coastal Archipelago.

At the Third Law of the Sea Conference, the applicability of the straight baseline system was extended to mid-ocean or oceanic Archipelagos. These are situated at such a distance from any mainland as to be considered an independent whole and constitute the national territory of a State called an Archipelagic State. Off-lying and oceanic Archipelagos forming an integral part of the territory of a continental State are not specifically provided for in the 1982 Convention.

In 1974, a group of nine States introduced a Working Paper proposing the right for a coastal State, with an off-lying Archipelago forming an integral part of its territory, to apply the straight baseline system to such an Archipelago, subject to the right of innocent passage. Also in 1974, Ecuador proposed that straight baselines be applicable ‘to Archipelagos that form part of a State, without any change in the natural regime of the waters of such Archipelagos or of their territorial sea’.

In 1983 Professor Donat Pharand spent a six-month study leave with Dalhousie Ocean Studies Programme in Halifax, Nova Scotia. For many of us at D.O.S.P., and also at Dalhousie Law School, this was a period of reunion and reacquaintance with an old friend and fellow alumnus. For students it was an introduction to one of Canada's most dynamic law teachers. For me it is a special pleasure to be asked to supply the foreword to the product of these years of labour.

There must be few readers indeed who are unaware of Professor Pharand's work and reputation in the specialized area of Arctic Ocean law and policy. His earlier book The Law of the Sea of the Arctic (University of Ottawa Press, 1973) is, of course, still one of the standard reference works in the area, but the general law of the sea has undergone major surgery in recent years, and the policy issues associated with the Arctic Ocean have assumed a more critical significance as a result of more pressing resource and industrial demands on this remote and unique environment.

Whenever appropriate, a summary has been made at the end of chapters, so that a general conclusion might not be absolutely necessary. However, for greater clarity and convenience, a few concluding remarks on the four parts of the book seem advisable. Even at the risk of redundancy, a conclusion is formulated on the main points developed in each of the four parts. The key words of the various chapter and section headings are retained so that the corresponding developments in the text may be easily located.

Part 1. The sector theory

The sector theory has no legal validity as a source of title or State jurisdiction in the Arctic. This applies to land and, a fortiori, to maritime areas. The conclusion follows from a study of three possible legal bases for the theory: the boundary treaties of 1825 and 1867, the doctrine of contiguity and custom.

Boundary treaties of 1825 and 1867 The meridians described in the 1825 Treaty between Great Britain and Russia, as well as the 1867 Treaty between the United States and Russia, were used only as a convenient geographical device to delimit territorial possessions. Although the meridians were described as extending as far as the Frozen Ocean, the Parties made it abundantly clear in both instances that the subject matter of the agreements was land only, and not land and sea.

Contiguity Subject to minor exceptions relating to certain islands in a territorial sea or forming an integral part of an Archipelago, the doctrine of contiguity does not constitute an adequate legal basis for the acquisition of sovereignty over land or maritime areas. Consequently, contiguity cannot serve as a valid basis for the sector theory.

The sector theory has been invoked by a number of politicians and officials in Canada as a legal basis for claiming jurisdiction not only over the islands of the Canadian Arctic Archipelago, but also over the waters within and north of the islands right up to the Pole. However, the government itself has never taken a very clear and consistent position on this theory. It would seem that present government policy is to hold the theory in reserve as possible support for its claim that the waters of the Archipelago are internal.

The purpose of this first Part is to assess the validity of the sector theory in international law as a basis for claiming jurisdiction to Arctic waters. This will be done in four chapters, presenting: 1) a brief inquiry into the origins of the theory; 2) a study of the relevant boundary treaties; 3) an analysis of the related concept of contiguity; and 4) a review of State practice and its possible acceptance as customary law.

It is presently an opportune time to re-examine the legal regime applicable to the waters of the Canadian Arctic Archipelago. Although it is probable that Arctic hydrocarbon production and transportation will not occur before the late 1990s, the current lull in exploration activity makes appropriate planning possible.

The Arctic Pilot Project - a proposal to ship liquefied natural gas by tanker from Melville Island through the Northwest Passage to a southern Canadian port - has been rejected because of insufficient information as to markets. American developers in the Beaufort Sea have not yet found sufficient commercial reserves to warrant tanker transportation through the Northwest Passage to the American eastboard. Canadian developers – Dome, Esso and Gulf – are still in the process of assessing hydrocarbon reserves in the Beaufort Sea and, despite satisfactory results of certain well tests in 1984, commercial production has yet to begin.

The possibility of enclosing the Canadian Arctic Archipelago with straight baselines has been discussed by a number of writers since the Fisheries Case of 1951, particularly after the Manhattan crossing of the Northwest Passage in 1969. Their writings have already been reviewed by the present writer and suffice it to recall here that, subject to a few nuances, they all arrived at the conclusion that those waters could be enclosed in a way similar to those of the Norwegian Archipelago. In spite of the virtual unanimity in the conclusion, the reasons varied somewhat from one writer to another, particularly as to the precise legal nature of the Canadian Archipelago, the use which could be made of history and the consequence which straight baselines would have on any right of passage that might now exist. In light of the applicable law and the practice of States already discussed, this chapter will examine: (1) the geography of the Canadian Arctic Archipelago; (2) straight baselines for the Archipelago; and (3) the consolidation of title to certain waters enclosed by straight baselines.

The geography of the Canadian Arctic Archipelago

In the Fisheries Case of 1951, the International Court concluded that ‘the method of straight baselines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast’. The question arises here whether the geography of the northern coast of Canada is of a similarly peculiar nature so as to warrant the method of straight baselines for the delimitation of its territorial waters.