The Future of the Arctic Ocean: Competing Domains of International Public Policy

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  • 1. Many ethnologists have found archeological evidence of a common Stone Age culture in the circumpolar North. Some believe that the general climate and a rich maritime environment could have sustained Aleut coastal communities for 12,000 years, and certainly for over 8,000 years. W. S. Laughlin and J. S. Aiguer, "Aleut Adaptation and Evolution," in Prehistoric Maritime Adaptation of the Circumpolar Zone, ed. W. Fitzhugh (The Hague: Mouton Publishers, 1975), pp. 181-201. But the Arctic Small Tool Tradition cannot be traced back as far as 3,000 B.C. 2. It is difficult to substantiate early accounts of explorations to "Thule," such as those of the Greek navigator Pytheas in the 4th century B.C. The Vikings certainly discovered Greenland in the 10th century A.D., and Iceland in the previous century. Exploration of the Northeast and Northwest Passages began in the 16th century, mainly by English and Dutch navigators looking for possible trade routes. 3. These five states all possess Arctic coastlines: that is, within the Arctic Circle (66 degrees 30' N). The three other "Arctic states" (Finland, Iceland and Sweden) are essentially sub-Arctic territories. Iceland has a tiny part of its coastline virtually on the Arctic Circle, but it is normally characterized as a North Atlantic coastal state.

  • . 4. The only specifically Arctic provision in the 1982 United Nations Conven- tion on the Law of the Sea, the so-called "Arctic exception," is Article 234 on "ice- covered waters." The tacit understanding at UNCLOS III to leave the Arctic out of account has created uncertainties regarding the applicability of certain other provis- ions to these waters.

  • 5. 1982 United Nations Convention on the Law of the Sea, Articles 56-57. 6. It is a matter of controversy whether the renewable resources of the circum- polar North can be developed into a major sustainable industry. Most fish species are underexploited or unexploited, but their harvestable potentiality is limited. Most Arctic marine mammals, on the other hand, are exploited to the point of concern about their conservation, but scientists are divided on whether they are threatened or in danger of extinction. For a recent optimistic assessment, see L. A. Harwood and others, "The harvest of Beluga whales in Canada's Western Arctic: hunter-based monitoring of the size and composition of the catch," Arctic 55 (March 2002): 10. On current issues related to the harvesting of the living resources of the Arctic Ocean, see R. A. Caulfield, "Political Economy of Renewable Resources in the Arc- tic," in The Arctic: Environment, People, Policy, eds. M. Nuttall and T. V. Callaghan (Amsterdam: Harwood Academic Publishers, 2000), pp. 485-89. 7. Coastal state jurisdiction over offshore oil and gas reserves cannot be con- tested within undisputed EEZ areas, nor within undisputed areas of the seabed on the continental shelf beyond as defined in Article 76. The principal areas of current Arctic offshore oil and gas interest are in the Beaufort Sea and Mackenzie delta, off the coasts of Alaska, the Yukon, and the Northwest Territories. 8. Continental shelf doctrine prevailed in customary international law between the 1930s and 1970s, but was codified in the 1958 Geneva Convention on the Conti- nental Shelf. Various difficulties, such as those related to the "exploitability" crite- rion, led to a fundamental reformulation at UNCLOS III. For a summary account of this shift, see D. M. Johnston, The Theory and History of Ocean Boundary-Making (Kingston and Montreal: McGill-Queen's University Press, 1988), pp. 85-94. 9. Obviously it would have been particularly difficult to satisfy the criterion of exploitability in ice-covered waters, and even in relatively ice-free Arctic waters questions might have arisen about exploitability in the sense of the economic feasi- bility of offshore production, given the exceptionally high costs of operation in re- mote frigid zones.

  • 10. In 2001, Russia made a claim to Arctic continental shelf areas beyond its EEZ based on geological evidence of submarine ridges that appear to be "non- oceanic" and therefore may be included under the regime of the continental shelf as qualified under Article 76 (3). On the general problem associated with ridges, see P. A. Symonds and others, "Ridge Issues," in P. J. Cook and C. M. Carlton, eds., Continental Shelf Limits: The Scientific and Legal Interface (Oxford: Oxford University Press, 2000), pp. 285-307. . 11. Under Article 76(8), such claims must be submitted to a technical, non- judicial, international body, the Commission on the Limits of the Continental Shelf, which is authorized only to make "recommendations to the coastal States." The provision adds that the limits of the shelf "established by a coastal State on the basis of the recommendations shall be final and binding." For an interpretation of the Commission's mandate, see T. L. McDorman, "The role of the Commission on the limits of the continental shelf: A technical body in a political world," International Journal of Marine and Coastal Law (2002), in press. See also various contributions to Cook and Carleton (n. 10 above). 12. Two of these enclaves are in sub-Arctic seas: the Bering Sea and the Sea of Okhotsk. See D. A. Balton, "The Bering Sea doughnut hole convention: regional solution, global implications," in O. S. Stokke, ed., Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (Oxford: Oxford University Press, 2001), pp. 143-77; and A. G. Oude Elferink, "The Sea of Okhotsk peanut hole: de facto exten- sion of coastal state control," ibid., pp. 179-205. A third enclave, described as a "loophole," is located between the EEZs of Norway and Russia in the Barents Sea, which is in the High Arctic. See O. S. Stokke, "The loophole of the Barents Sea fisheries regime," ibid., pp. 273-301. 13. Part VII of the 1982 UN Convention on the Law of the Sea, dealing with High Seas," is applicable, under Article 86, to "all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal Waters of the State, or in the archipelagic waters of an archipelagic State." This seems clear enough, but it can be argued on functionalist grounds that, since Part VII does not refer explicitly to enclaves, such "zone-locked" areas need to be brought under a negotiated set of arrangements at the initiative of the surrounding states. When the enclave consists of ice-covered waters, this functionalist argument is strengthened by common sense considerations of a kind that could not be enter- tained at UNCLOS III, since the Arctic Ocean was not in contemplation. But the orthodox legal argument may be that ice shelves, considered geophysically, are "ex- traterritorial glacial extensions floating on ocean space," and therefore "in situ high seas in a frozen state." C. C. Joyner, "The Status of Ice in International Law," in A. G. Oude Elferink and D. R. Rothwell, eds., The Law of the Sea and Polar Maritime Delimitation and jurisdiction (The Hague: Martinus Nijhoff Publishers, 2001), pp. 23- 48 at p. 33.

  • 14. The high seas concept is linked historically to the traditional right of un- restricted navigation and other ocean-based freedoms that have never been exer- cised in the "core" waters of the Arctic Ocean. The same division between legal formalism and functionalism complicates efforts to designate parts of the Arctic Ocean as falling under Part XI on "The Area," where the common heritage doc- trine would be applicable under Article 136. 15. Whether the Arctic Ocean consists "primarily" of national waters, in the spatial sense, depends, of course, on how one defines "Arctic Ocean." At its centre is the "North Polar Sea" or "Arctic Sea," much of which lies beyond 200-M limits, but most definitions include also adjacent seas (e.g., Greenland Basin, Norwegian Sea, Barents Sea, Kara Sea, Laptev Sea, Chukchi Sea, Beaufort Sea, and Baffin Bay). It is possible to include even nonadjacent waters such as the Beri,ng Sea, Hudson Bay, and the Norwegian Basin, if the purpose is to encompass all waters that are ice-covered at certain times of the year. If broadly defined, the Arctic Ocean consists primarily of national waters. If narrowly defined (e.g., as the ocean area within the Arctic Circle), most of the Arctic Ocean extends outside EEZ limits, but is only minimally available for "international" purposes. 16. Article 123 provides that states bordering enclosed or semi-enclosed seas "should cooperate with one another in the exercise of their rights and in the perfor- mance of their duties" under the Convention. Explicit purposes of such cooperation include fishery use and management, which has limited applicability to the Arctic Ocean as narrowly defined, but also scientific research and environmental protec- tion, which are very important in the region. Few would deny that the Arctic Ocean is "semi-enclosed": its only "wide mouth" is between Greenland and Norway in the Svalbard area, which permits only limited navigation most of the year. 17. Since the introduction of the Arctic Environmental Protection Strategy (AEPS) and the subsequent creation of the Arctic Council, these five states, along with Finland, Iceland, and Sweden, have engaged in numerous environmental and scientific activities that include those which would seem to qualify as the kind of cooperation envisaged in Article 123. On the evolution of AEPS in critical perspec- tive, see D. VanderZwaag, R. Huebert and S. Ferrara, "The Arctic Environmental Protection Strategy, Arctic Council and Multilateral Environmental Initiatives: Tin-

  • kering while the Arctic Marine Environment Totters," in Elferink and Rothwell (n. 13 above), pp. 225-48. 18. 1982 United Nations Convention on the Law of the Sea, Article 234. 19. Ibid., See D. M. McRae, "The Negotiation of Article 234," in F. Griffiths, ed. Politics of the Northwest Passage (Kingston, Ont: McGill-Queen's University Press, 1987), pp. 25-45. For recent re-evaluations, see R. Huebert, "Article 234 and Marine Pollution Jurisdiction in the Arctic," in Elferink and Rothwell (n. 13 above), pp. 249-67; and R. D. Brubaker, "Regulation of Navigation and Vessel-Source Pollution in the Northern Sea Route and State Practice," in D. Vidas, ed., Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention (Cambridge: Cambridge University Press, 2000), pp. 221-43. 20. Due to its rather vague formulation, Article 234 might be considered appli- cable to EEZ waters beyond those of the five Arctic littoral states. D. M. McRae and D. Goundrey, "Environmental Jurisdiction in Arctic Waters: The Extent of Article 234," University of British Columbia Law Review 16 (1982): 197. 21. 1982 United Nations Convention on the Law of the Sea, Article 7. See T. Scovazzi, "The Baseline of the Territorial Sea: The Practice of Arctic States," in Elferink and Rothwell (n. 13 above), pp. 69-84. For historical background and anal- ysis see D. Pharand, Canada's Arctic Waters in International Law (Cambridge: Cam- bridge University Press, 1988), pp. 131-84. 22. 1982 United Nations Convention on the Law of the Sea, Articles 34-35. For a Russian view on the legal status of the Northeast Passage, see L. Tymshenko, "The Northern Sea Route: Russian Management and Jurisdiction over Navigation In Arctic Seas," in Elferink and Rothwell (n. 13 above), pp. 269-91. On the status of the Northwest Passage, see Pharand, op cit., pp. 185-248; and D. Pharand (in association with L. H. Legault), The Northwest Passage: Arctic Straits (Dordrecht: Kluwer Academic Publishers, 1984).

  • 23. It has been strongly argued that the Arctic Ocean presents too many unique difficulties to be brought within the global law of the sea framework, which was designed almost entirely without consideration of these difficulties. By this argu- ment a sui generis approach is necessary. D. R. Rothwell and S. Kaye, "The Law of the Sea and the Polar Regions: reconsidering the traditional norms," Marine Policy 18 (1) (Jan. 1994): 41. The uniqueness of the Arctic Ocean is often invoked as the rationale for exceptional precautionary measures to protect the Arctic marine environment, and thus for an Arctic-specific environmental regime. Some argue that this should be the prerogative of the Arctic states-either the "Arctic Five" or the "Arctic Eight"-whereas others argue that it should be the responsibility of the larger international community. The latter view can rest on the fact that the most serious threats to the Arctic marine environment, contamination and climate change, originate largely outside the Arctic region. With the establishment of the Arctic Council as an informal forum, there seems to be no immediate prospect of a treaty-based approach to regime-building in the Arctic. Compare: D. L. Vander- Zwaag and others, "Towards regional ocean management in the Arctic: from coexis- tence to cooperation," Uniaersity of New Brunswick Law Journal 38 (1988): 1; D. D. Caron, "Towards an Arctic environmental regime," Ocean Deuelopnzent and Interna- tional Law 24 (1993): 377; R. Huebert, "The Canadian Arctic and the International Environmental Regime," in J. Oakes and R. Riewe, eds., Issues in the North, Vol. 2 (1997), pp. 45-53; and D. Vidas, "The Polar Marine Environment in Regional Cooperation," in Vidas (n. 19 above), pp. 78-103. 24. The UN Conference on the Human Environment, held at Stockholm in June 1972, marked the beginning of a series of UN mega-conferences devoted to highly complex problems. Arguably, it also represented a new approach to confer- ence diplomacy, and the birth of the international environmental movement.

  • 25. E. L. Miles, "Preface," in E. L. Miles et al., Environmental Regime Effectiveness: Confronting Theory zuith Evidence (Cambridge, Mass.: MIT Press, 2002), pp. xi-xix. 26. On this general trend, see D. M. Johnston, Consent and Commitment in the World Community: The Classification and Analysis of International Instruments (Irvington- on-Hudson, N.Y.: Transnational Publishers, Inc., 1997). 27. For a comprehensive review of this pattern see D. Shelton, ed., Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford and New York: Oxford University Press, 2000).

  • 28. On the impact of "soft" environmental law upon the law of the sea, see D. R. Rothwell, "The Influence of Non-Binding Norms upon the 1982 Convention," in D. M. Johnston and A. Sirivivatnanon, eds., Ocean Governance and Sustainable De- velopment in the Pacific Region: Selected Papers, Commentaries and Comments (Bangkok: SEAPOL, 2002), pp. 157-87; and D. L. VanderZwaag, "The Precautionary Principle and Marine Environmental Protection: Slippery Shores, Rough Seas and Rising Nor- mative Tides," D. M. Johnston and A. Sirivivatnanon, pp. 188-209.

  • 29. D. M. Johnston, "RUNCLOS: the case for and against revision of the UNCLOS III Convention," Chuo Law Review 2002 (in press). 30. One of the basic objectives of the United Nations, as stated in the Preamble to the UN Charter, is to promote "the economic and social advancement of all Peoples." " 31. Proposals for reform of the UN Charter have included the call for a 'World Development Authority." G. Clark and L. B. Sohn, World Peace Through World Law: Trao Alternative Plans, 3rd ed. enl. (Cambridge, Mass.: Harvard University Press, 1958, 1966), pp. 345-48. However, this proposal has been no more successful than other calls for Charter reform. 32. The concept of a "right to development" is derived from the language of responsibilities in the UN Charter and from the subsequent language of rights in the 1966 International Covenant on Economic, Social, and Global Rights. Since it focuses on states or peoples, not individuals, the right to development seems to live In the twilight between legal and moral rights. 33. "Sustainable development," articulated by the Brundtland Commission in the 1980s, has been challenged by many critics as an oxymoron, assuming that "de- velopment" carries the idea of growth. See, for example, W. Beckerman, "Sustain- able Development: Is it a Useful Concept?" Environmental Values 3 (94): 191. How- ever, the Brundtland terminology is established, not least in government documents,

  • and it now seems difficult to replace it with terms that are free of objections, such as "sustainable use" or "sustainable activities." It might be protested that the term "sustainable development" was of diplomatic origin, intended to create a bridge between developmental ethic and environmental ethic. But imprecision inherent in basic concepts tends to weaken the intellectual foundation of the field which they purport to serve. 34. The most recent reorientation of thinking about development assistance is a return to the problem of poverty. Those inclined to be skeptical about the poten- tial effectiveness of this approach might wish to read or re-read a distinguished econ- omist's work on this problem. G. Myrdal, The Challenge of World Poverty: A World Anti- Poverty Program in Outline (New York: Pantheon Books, 1970). 35. See Inuit Circumpolar Conference, CircumpolarSustainableDevelopment (Ot- tawa: I.C.C., 1994); Nuttall and Callaghan (n. 6 above); and M. M. R. Freeman, ed., Endangered Peoples of theArctic (Westport, Conn.: Greenwood Press, 2000). In recent years the concept of "indigenous peoples" has become a powerful mobilizer at the global level. B. Kingsbury, " 'Indigenous peoples' in international law: a constructiv- ist approach to the Asian controversy," American Journal of International Law 92 (1998): 414. Particularly since the early 1990s northern indigenous peoples have been represented in most global arenas where issues of relevance to the Arctic have been discussed and negotiated.

  • 36. Mineral resource development in the circumpolar North has been most rapid in Russia, pre-dating the Soviet period, reaching its peak during the Stalinist years, but scarcely diminishing in the post-Soviet era despite mounting concern over the environmental damage it causes. In the Canadian High Arctic, a lead-zinc mine began production in Strathcona Sound in the early 1970s, and in the following decade a second lead-zinc operation started up on Little Cornwallis Island. C. L. Mitchell, "The Development of Northern Ocean Industries," in Transit Management in the Northruest Passage: Problems and Prospects, eds. C. L. Lamson and D. L. Vander- Zwaag (Cambridge: Cambridge University Press, 1988), pp. 65-99, at 89-91. 37. There is still considerable disagreement on the future of Arctic shipping technology. Vessel designs and operational methods are under continuous re-evalua- tion. E. G. Frankel, "Arctic Marine Transport and Ancillary Technologies," in Lam- son and VanderZwaag (n. 36 above), pp. 100-29. Obviously technical choices would have to be made before the design of a regulatory system for the Northern Sea Route and the Northwest Passage.

  • 38. For a recent overview of these issues, see D. M. Johnston, "The Northwest Passage revisited," Ocean Development and International Law 33 (2002): 145. For de- . tailed studies of related problems, see D. L. VanderZwaag and C. L. Lamson, eds., The Challenge of Arctic Shipping. Science, Environmental Assessment and Human Values (Montreal and Kingston: McGill-Queen's University Press, 1990). For a challenge to the traditional statist framework, see F. Griffiths, "The Northwest Passage in transit," International journal 54 (Spring 1999), pp. 189-202. 39. C. L. Ragner, ed., The 21 st Century-Turning Point for the Northern Sea Route? (Dordrecht: Kluwer Academic Publishers, 2000); and W. Ostreng, ed., The Natural and Sorietal Challenges of the Northern Sea Route (Dordrecht: Kluwer Academic Publish- ers, 2000). See also Brubaker (n. 19 above). 40. Canada's North is particularly rich in oil and gas resources. The most im- mediate prospects lie in the Mackenzie Delta and the Beaufort Sea, but vast opportu- nities for petroleum development exist in Canada's High Arctic Islands, Lancaster Sound, and the Baffin Bay-Davis Strait region, if the recovery problems can be over- come. Mitchell (n. 36 above), pp. 83-89. In the meantime, Arctic oil and gas activi- ties are concentrated in Alaska, both onshore and offshore. 41. On the other hand, the oil and gas industry, like the mining industry, is heavily capital-intensive. The shipping and related services industry is clearly the most labour-intensive of these three sectors, so that the opening up of waterways in the Arctic Ocean would have a much greater significance in terms of long-term social and economic development for the residents of the North. 42. At the time of writing (May 2002), the U.S. Congress was not willing to support the George W. Bush Administration's proposal for making drilling permits available in Alaska's Arctic National Wildlife Refuge, but this could change along with the political arithmetic in the House and Senate.

  • 43. Regional cooperation in Arctic science dates from 1879 with the founding of the International Polar Commission, but inter-governmental cooperation has been erratic over the years since then. 44. The tendency has been for national scientific activity to peak at a time of strategic excitement. It has been observed that Canadian Arctic science has received governmental priority only at a time of challenge to Canadian Arctic sovereignty. C- Pyc, "An Arctic science policy? All we need is a sovereignty crisis," Arctic 53 (March 2000): iii. On current Canadian Arctic sovereignty issues, see Johnston (n. 38 above), pp. 146-49.

  • 45. A Canadian scientist has estimated the annual U.S. Arctic scientific re- search budget as high as $257 million (Can), creating a "brain-drain" of Canadian specialists southward to affluent U.S. research institutions. Pyc (n. 44 above). 46. In December 1987, a Soviet-U.S. Joint Statement was adopted at a summit meeting, encouraging cooperation in "marine navigation, fishing, search and res- cue at sea, interaction of radio-navigation systems, and delimiting the sea expanses of the Northern Arctic Ocean or the Chukchi and Bering Seas adjacent thereto." A. L. Kolodkin and M. E. Volosov, "The legal regime of the Soviet Arctic: Major issues," Marine Policy 14 (2) (March 1990): 158 at pp. 167-68. This political break- through, inaugurating a new age in international Arctic relations, was made possible by President Gorbachev's famous Murmansk speech of October 1, 1987, in which he promised to open up the Northern Sea route for international shipping. W. Ostreng, "The Northern Sea Route: A new era in Soviet policy?" Ocean Development and International Law 22 (3) (1991): 259. However, major differences between Rus- sian and American (and Canadian and American) positions on Arctic Ocean legal issues remain unresolved. 47. See, for example, Agreement between the United States and Canada on Arctic Cooperation, 11 January 1988, Canada T.S. 29, International Legal Materials 28 (1989): 142. In the same year a similar instrument between Canada and the Soviet Union was concluded and was succeeded in 1992 by an agreement between Canada and the Russian Federation. 48. Agreement on Conservation of Polar Bears, 27 U.S.T. 3918, T.I.A.S. 8409. On the effectiveness of this international regime, see A. Fikkan et al., "Polar Bears: The Importance of Simplicity," in O. D. Young and G. Osherenko, eds., PolarPolitics: Creating International Environmental Regimes (Ithaca, N.Y.: Cornell University Press, 1993), pp. 96-115. 49. For an overview, see R. W. MacDonald et al., "Contaminants in the Cana- dian Arctic: 5 years of progress in understanding sources, occurrence and path- ways," Science of the Total Environment 254 (2-3), (2000), pp. 93-234. 50. Not surprisingly, climate change concerns have generated new fundamen- tal research in the Arctic. As far back as the 1970s, the glaciologist, John Mercer, observed a striking geographical similarity between the Western Antarctic and the

  • Eurasian Arctic: both possess a large continental shelf (in the geological sense) that is no more than a few hundred meters deep, but the Western Antarctic has a 2.5 km-thick ice-sheet resting on it, whereas the Eurasian Arctic is completely free of . grounded ice." Recent research under the PONAM and QUEEN projects, involv- 'rig 50 scientists from seven European countries, shows that the Barents Sea used to have grounded ice, which gradually disintegrated after the height of the last ice age 14,000 years ago. It is believed probable that a similar meltdown of the Western Antarctic ice-sheet might occur causing sea-level rise and mass inundations in many regions. M. J. Siegert et al., "The Eurasian Arctic during the last Ice Age," American Scientist 90 (1) (Jan.-Feb. 2002): 32-39. Indeed, the ice-sheet of Western Antarctica is already disintegrating and causing some concern. For the most authoritative re- port on global climate change, see Intergovernmental Panel on Climate Change, Working Group I. J. T. Houghton et al., ed., Climate Change 2001: The Scientific Basis: Contribution of Working Crroup I to the third assessment report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2001). Whether global climate change is the cause of current variations in Arctic ice cover patterns is still in debate among Arctic scientists, but the majority view is that there is an annual trend to more prolonged melting in the Northwest Passage over part of the year, sufficiently to raise the prospect of sustained summer transit through these waters. K- Huebert, "Climate change and Canadian sovereignty in the Northwest Passage," Isuma: Canadian journal of Policy Research, vol. 2, no. 4 (Winter 2001): no pages. ISSN 1492-0611, accessed 30 August 2002 on the World Wide Web: http:// /; and Johnston (n. 38 above). . 51. Antarctic research is organized, or at least coordinated, among the coun- tries that participate in the Antarctic treaty system. For a recent study of this regime, see C. C.Joyner, Governing theFrozen Commons: The Antarctic Regime and Environmental protection (Columbia, S.C.: University of South Carolina Press, 1998).

  • 52. See section on "The Regime-Builders," below. 53. Many scientists retain the vision of the Arctic as a global laboratory, a vision that has had to compete with more utilitarian visions for over 100 years. "Global laboratory" advocates tend to be scornful of national boundaries as an irrational interference with the civilizing mission of the scientific community. C. Lamson, "In Pursuit of Knowledge: Arctic Shipping and Marine Science," in VanderZwaag and Lamson (n. 38 above), pp. 16-19. 54. See, for example, J. Cruikshank, "Glaciers and climate change: perspec- tives from oral tradition," Arctic 54 (4), (Dec. 2001): 389; P. Usher, "Traditional ecological knowledge in environmental assessment and management," Arctic 53 (2) (June 2000): 183; and G. W. Wenzel, "Traditional ecological knowledge and Inuit: reflections on TEK research and ethics," Arctic 52 (2) (June 1999): 113. 55. A problem in public policy arises when indigenous belief is diametrically opposed to orthodox scientific opinion. For example, the Inuit believe that "the more a species is hunted, the more abundant it will become," rationalized on the ground that "animal populations which are hunted regularly have less disease, re- produce faster, and have more to eat than animals which are not hunted." Wenzell (n. 54 above), p. 119.

  • . 56. The relative privacy of Arctic waters allowed the two superpowers "breath- itig room" for developing and testing nuclear vessels and related technologies in a cat-and-mouse sport that proved to be bloodless, though certainly costly in other ways. Arguably, no other region offered so many advantages for this exercise in mutual deterrence. Because of its shortage of year-long, ice-free ports, the Soviet Union was forced to develop the northern port of Murmansk as the main base for its nuclear attack submarines (SSNs) and nuclear ballistic missile submarines (SSBNs). This in turn forced the United States to give a high priority to the Arctic in developing its own program of submarine operations. But the advent of shorter- range submarine-launched cruise missiles (SLCMs) armed with nuclear weapons forced both superpowers to deploy their submarines closer to the shores of their enemies, further increasing the strategic importance of Arctic waters. R. Huebert, "Canadian Arctic security issues: transformation in the post Cold War Era," Interna- tionaljournal 54 (2) (Spring 1999): 203 at 205-06. 57. The U.S. policy of vigilance is considered by some critics to be the product of an obsession with the illusory goal of total security: the "national security para- digm," One critic confronts "the historical assumptions that complete security is a natural state of affairs and somehow an American right." M. MccGwire, "The para- digm that lost its way," International Affairs 77 (4) (October 2001): 777 at p. 796. These words were written before 11 September 2001. The depth of emotions stirred among the American people by that shocking assault on their centers of power and wealth would be understandable in any culture, but may be especially significant if seen also as an assault on the central myth of American foreign policy since 1945. Since that assault, U.S. policy, vis-a-vis Russia, has undergone further transformation because of the latter's central role in the U.S. strategy of coalition-building in the war against terrorism, moving from containment through constructive engagement to a policy of alliance favoring Russian membership of NATO. Meanwhile the newly Pervasive sense of insecurity in the United States strengthens the hand of strategic planners who advocate a policy of "comprehensive security." The package of con- cerns that might be addressed together includes terrorism, illegal immigration, re- source conflict, environmental degradation, and transnational crime (e.g., people Smuggling, drug traffic, and arms trade). Huebert (n. 56 above), p. 204.

  • 58. For a brief editorial essay on the legal implications of the "single super- power" hypothesis, see D. F. Vagts, "Hegemonic international law," AmericanJournal of International Law 95 (4) (October 2001): 843. 59. At the time of writing (May 2002) , it appeared that the events of September 2001 had forced Canada into an even closer relationship with the United States, especially in areas perceived by the U.S. government to be security-related. Even before these events, many Canadian observers of strategic realities felt that Canada's s room for manoeuvre was greatly reduced if the national security of the United States was at stake. In one article, written in 2000, it was argued that "[i]n the realm of security and defence cooperation Canada's options are really limited to Hobson's choice, not necessarily because of huge advantages to be gained from being onside, but because of the incalculable disadvantages of refusing to take U.S. security con- cerns seriously." A. Macleod, S. Roussel and A. Van Mens, "Hobson's choice," Inter- nationalJournal55 (3) (Summer 2000): 341 at p. 354. 60. On American concerns with "homeland defence" before the assaults of September 2001, see R. J. Larsen and R. A. David, "Homeland defense: assumptions first, strategy second," Strategic Review 28 (Fall 2000): 4; and J. Train, "Who will attack America?," ibid., 11.

  • b 61. See, for example, Ragner (n. 39 above); Griffiths (n. 38 above); and Hue- bert (n. 50 and n. 56 above). See also Johnston (n. 38 above). � 62. Much of the literature on Arctic regime-building has been written by Oran *>• Young and his colleagues. See, for example, Young and Osherenko (n. 48 above). �n the merits and prospects of the regime-building approach to Arctic regional Issues see D. Rothwell, ThePolarRegions and theDevelopment of International Law (Cam- bridge: Cambridge University Press, 1996), pp. 406-23.

  • 63. See Rothwell and Kaye (n. 23 above). 64. 1982 United Nations Convention on the Law of the Sea, Article 123.

  • 65. Enclave management arrangements elsewhere have been motivated by the need to resolve issues over fishing and fishery management rights and responsibilit- ies. See, for example, Balton (n. 12 above), Elferink (n. 12 above), and Stokke (n. 12 above). 66. Efforts have been made to persuade the Canadian government to fund a Project on the Northwest Passage similar in purpose, if not scale, to the International Northern Sea Route Project, in conjunction with the Inuit Circumpolar Conference and other proponents, but they have been frustrated by the domestic politics of federal-Nunavut relations. 67. Transit through the Panama Canal produces huge revenues: allegedly $100,000 or more for the largest vessels. Presumably economists find it very difficult to meaningfully compare the potential costs of operating a waterway through Cana- dian or Russian Arctic waters with the actual costs of operating the Panama Canal. Also the political, diplomatic and legal problems associated with opening up "inter- national navigable waterways" of natural character such as the Northwest or North- east Passage may be quite different from those experienced historically with man- made canals. See R. R. Baxter, The Laws of International Watenways with Particular Regard to Interoceanic Canals (Cambridge, Mass.:, Harvard University Press, 1964). But tile proclivity to international controversy may be common to both categories. It might be noted that the history of canal-building is not over: in Southeast Asia much attention has been given in recent years to proposals for building the Kra Canal through Thai or Malaysian territory. In North America, several existing canals (e.g., Welland Canal in Canada) are in serious disrepair, requiring large-scale reinvest- ment, and the international waterway (the St. Lawrence Seaway) is said to have seri- ous financial problems.

  • 68. Under Article 38 (1) of the 1982 UN Convention on the Law of the Sea, the right of transit passage "shall not be impeded." Under Article 38 (2), "transit passage means the exercise ... of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive zone." 69. Miles et al. (n. 25 above), pp. 435-36. 70. Recently various maritime regimes have been evaluated, more impression- istically, from a Northeast Pacific perspective. M. J. Valencia, ed., Maritime Regime Building: Lessons Learned and Their I�elevance for Northeast Asia (The Hague: Martinus Nijhoff Publishers, 2001). See also Vidas (n. 19 above).

  • 71. See MacDonald et al. (n. 49 above).

  • 72. See n. 67 above. 73. Antarctic Treaty (1959) 402 U.N.T.S. 71, 12 U.S.T. 794, T.I.A.S. No. 4780.

  • 74. Convention for the Conservation of Antarctic Seals (1972), 1080 U.N.T.S. 175, 29 U.S.T. 441, T.I.A.S. No. 8826. 75. Convention on the Conservation of Antarctic Living Resources (1980), 1829 U.N.T.S. 47. 76. This arrangement was first entered into in 1964. 77. Yet Article IX provides that the measures which might be considered by the Contracting Parties include those relating to "... f) preservation and conserva- tion of living resources in Antarctica". 78. The Convention on the Regulation of Antarctic Mineral Resource Activities was concluded in 1988, but has not come into force due to a change of policy on the part of several Contracting Parties. See C. C. Joyner and S. K. Chopra, eds., TheAntarctic Legal Regime (Dordrecht: Martinus Nijhoff Publishers, 1988), pp. 131-59. The text of this instrument was reproduced at 27 International Legal Materials 868 (1988).

  • 79. The International Council for the Exploration of the Sea, established in 1901, has been the principal intergovernmental organizer, coordinator, and dissemi- nator in the field of oceanography for the North Atlantic Ocean; and PICES was established almost 100 years later as the counterpart organization for the North Pacific.

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