NIAGARA INTERNATIONAL MOOT COURT COMPETITION. A Dispute Arising Under the Statute of the International Court of Justice.

Transcription

1 NIAGARA INTERNATIONAL MOOT COURT COMPETITION A Dispute Arising Under the Statute of the International Court of Justice February, 2011 THE GOVERNMENT OF CANADA (Applicant) v. THE GOVERNMENT OF THE UNITED STATES (Respondent) MEMORIAL OF THE APPLICANT TEAM#: A

2 TABLE OF CONTENTS TABLE OF AUTHORITIES iii QUESTIONS PRESENTED...vii JURISDICTIONAL STATEMENT.....viii STATEMENT OF FACTS ix SUMMARY OF ARGUMENT ARGUMENT I. THE DISPUTED REGION OF THE BEAUFORT SEA IS CANADIAN TERRITORY AND CANADA CAN ENGAGE IN FISHING AND OIL EXPLORATION IN THE AREA A. The disputed region of the Beaufort Sea is Canadian territory. 2 B. Canada s fishing and drilling activities in the Beaufort Sea are consistent with its international obligations, and therefore the United States moratorium is unjustified Canada has not violated international law because its fishing activities in the Beaufort Sea are in line with its obligations under international law Canada has not violated international law because its oil exploratory efforts in the Beaufort Sea are in line with its obligations under international law..7 C. U.S. unilateral enforcement of the fishing and oil exploration moratoriums in the disputed portion of the Beaufort Sea violate its obligation to peacefully settle disputes...10 II. THE NORTHWEST PASSAGE CONSTITUTES INTERNAL CANADIAN WATERS UNDER INTERNATIONAL LAW AND THERE EXISTS NO RIGHT FOR U.S. MILITARY VESSELS TO TRANSIT IT WITHOUT THE CONSENT OF THE CANADIAN GOVERNMENT A. The Northwest Passage constitutes internal Canadian waters under UNCLOS and the Norwegian Fisheries case Northwest Passage meets the geographic requirements of Article 7 of UNCLOS for the drawing of straight baselines..12 i

3 2. The Northwest Passage meets all the requirements articulated in the Norwegian Fisheries case, and therefore the drawing of straight baselines is permitted.13 a. The baselines drawn by Canada do not depart an appreciable extent from the general direction of the Canadian coastline 13 b. There exists a close link between the Canadian archipelago and the Northwest Passage under the sea to land test.14 c. The waters of the Northwest Passage represent economic interests peculiar to the region evidenced by long usage The exception to the denial of passage through internal waters found in Article 8 of UNCLOS does not apply as there is no pre-existing navigational regime 16 B. The Northwest Passage is internal Canadian waters under Historic Consolidation of Title.. 17 C. The Northwest Passage is not an international strait as it does not meet the functional requirements of Corfu Channel test. 19 CONCLUSION 20 ii

4 TABLE OF AUTHORITIES TREATIES AND OTHER INTERNATIONAL AGREEMENTS Agreement Between the Government of Canada and the Government of the United States of America on Arctic Cooperation, U.S.-Can., Jan. 11, 1988, T.I.A.S Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, 34 I.LM (1995)...5, 6, 7 Agreement on the Conservation of Polar Bears, U.S.-Can., Nov. 15, 1973, 27 U.S.T. 3918, TIAS No Agreement on the Conservation of the Porcupine Caribou Herd, U.S.-Can., July 17, 1987, T.I.A.S. No Convention between Great Britain and Russia Concerning the Limits of its Respective Possessions on the North-West Coast of America and the Navigation of the Pacific Ocean, U.K.- Russ., Feb. 16, 1825, 75 Consol. T.S. 95.2, 3 Convention on Biological Diversity of the United Nations Conference on the Environment and Development, opened for signature June 5, 1992, 31 I.L.M Convention on the Rights and Duties of States (inter-u.s.), Dec. 26, 1933, 165 L.N.T.S The Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, and Fishing off the West Coast of Canada, U.S.-Can., Mar. 29, 1979, 50 Stat Treaty Between the Government of the United States of America and the Government of Canada Concerning Pacific Salmon, U.S.-Can., Mar. 18, 1985, T.I.A.S Treaty Concerning the Cession of the Russian Possessions in North America by his Majesty the Emperor of All the Russias to the United States of America, U.S.-Russ., Mar. 30, Stat Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S , 19 INTERNATIONAL CASES Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.) 2002 I.C.J. 303 (Oct. 10) Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4 (Apr. 9) , 20 iii

5 Grisbadarna (Nor. v. Swed.) Hague Ct. Rep. 122 (Perm. Ct. Arb. 1911).....3, 17 Island of Palmas (U.S. v. Neth.), 2 U.N. Rep. Intl. Arb. Awards 829 (Perm. Ct. Arb. 1928). 3 Norwegian Fisheries (U.K. v. Nor.), 1951 I.C.J. 116 (Dec. 18) 13, 14, 15 UNITED NATIONS DOCUMENTS Statute of the International Court of Justice, June 26, 1945.viii Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83 (Dec. 12, 2001)...11 U.N. Charter.....4, 10, 11 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S , 12, 13, 16 OTHER MATERIAL Compromis... 13, 18 Restatement (Third) of Foreign Affairs Law of the United States 206 (1987)...4 ARTICLES & MONOGRAPHS DONAT PHARAND, CANADA S ARCTIC WATERS IN INTERNATIONAL LAW (Cambridge University Press 1988)...14, 15 JOHN BASSET MOORE, A DIGEST OF INT L LAW VOL. I (1906)....4 Kimberly C. Gordy, Dire Straits: The Necessity for Canadian Sovereignty in the Arctic Waterways, 20 FORDHAM L. REV 551 (2010) Mark Jarashow, Michael B. Runnels, & Tait Svenson, UNCLOS and the Arctic: The Path of Least Resistance, 30 FORDHAM INT L L.J (2007)... 14, 15, 16, 20 N.C. Howson, Breaking the Ice: The Canadian-U.S. Dispute over the Arctic's Northwest Passage, 26 COLUM. J. TRANSNAT'L L. 337 (1988) 17 PHILIP C. JESSUP, THE LAW OF TERRITORIAL WATERS AND MARITIME JURISDICTION (1927).4 SARAH BONESTEEL, RELATIONSHIP WITH INUIT: A HISTORY OF POLICY AND PROGRAM DEVELOPMENT (Indian and Northern Affairs Canada, 2006) , 18 UNITED STATES CASES & OTHER MATERIALS iv

6 Ronald Reagan, 40 th President of the United States, Statement on United States Oceans Policy (Mar. 10, 1983)..12 FOREIGN CASES & MATERIAL Arctic Water Pollution Prevention Act, 1985 R.S.C., ch. A-12 (Can.) Canada National Marine Conservation Areas Act, 2002 S.C., ch. 18 (Can.)....6, 18 Canada Oil and Gas Land Regulation, 2010 C.R.C., ch (Can.)..9, 10 Canada Oil and Gas Operations Act, 2010 R.S.C., ch. O-7 (Can.)....8 Canada Petroleum Resources Act, 2010 R.S.C. ch. 36 (2nd Supp.)(Can.).9 Canada Shipping Act, 2001 S.C., ch. 26 (Can.). 18 Canada Wildlife Act, 1985 R.S.C., ch. W-9 (Can.)...6, 18 Eric LeGresley, The Law of the Sea Convention, Law and Government Division, BP-322E, 26 (1993)...2 Fisheries Act, 2009 R.S.C., ch. F-1.7 Gaétan Caron, Chair and Chief Executive Officer National Energy Board, Opening Statement at National Energy Board's Appearance before the Standing Committee on Natural Resources Emergency Response to Offshore Oil and Gas Drilling (May 13, 2010) Joe Clark, Former Canadian Secretary of State for External Affairs, Statement on Sovereignty, (Sep. 10, 1985).15, 16 Memorandum from Fisheries and Oceans Canada on Governance and Diplomacy (Feb. 3, 2009) Memorandum from the Canadian Department of Fisheries and Oceans on the Integrated Management Plan (Jun. 10, 2010)...6 Memorandum from the National Energy Board on Artic Offshore Drilling Review (Dec. 22, 2010) 9 Migratory Birds Convention Act, 1994, S.C., ch. 22 (Can.).6, 18 Northern Pacific Anadromous Stocks Fish Commission, 2010 NPASFC Documents, NPASFC/Doc (2010)...7 Oceans Act, 1996 S.C., ch. 30(c) (Can.) , 8, 18 v

7 Safety and Environmental Offshore Drilling Requirements (May 10, 2010)..9 Press Release, Fisheries and Oceans Canada, Sentences by Virtue of the Fisheries Act (Mar. 8, 2010)....7 Press Release, National Energy Board, National Energy Board Announces Review of Arctic Safety and Environmental Offshore Drilling Requirements (May 10, 2010).. 9 Press Release, Transport Canada, Arctic Marine Polluter Edgar Kotokak Fined $10,000 (July 7, 2008).. 18 The Constitution Act, 1982, Schedule B, Part II (2) (Can.)...18 Western and Central Pacific Fisheries Commission, Conservation and Management Measures, and Resolutions, WCPFC/Comm2/29 (Dec. 14, 2005)... 7 vi

8 QUESTIONS PRESENTED I. Whether, under international law, the U.S.-imposed moratoriums on fishing and oil exploration in the disputed 21,436 square kilometers of ocean and seabed of the Beaufort Sea are inconsistent with international law? II. Whether, under international law, U.S. military vessels have to obtain the consent from the Canadian government to transit the Canadian Northwest Passage? vii

9 JURISDICTIONAL STATEMENT Canada and the United States of America have agreed to submit this dispute to the International Court of Justice pursuant to Article 40(1) of the Statute of the International Court of Justice ( Statute ) 1 and in accordance with the Compromis notified to the Court on 28 August Pursuant to Article 36(1) of the Statute, the Court has jurisdiction to decide all matters referred to it for decision. The Parties have agreed to fully implement the decision of the Court. 1 Statute of the International Court of Justice, June 26, viii

10 STATEMENT OF THE FACTS History of the Boundary Dispute Between Canada and the United States of United States Canada and the United States of America ( United States ) have long disputed the delimitation of the international boundary present in the Beaufort Sea. Canada claims that the maritime boundary exists at the 141 st meridian west out to a distance of 200 nautical miles. Canada supports this claim by extending the territorial division agreed upon in the 1825 Treaty Boundary between the Alaskan territory and Canadian. On the other hand, the United States contends that the boundary line is perpendicular to the Alaskan coast out to a distance of 200 nautical miles, following a line of equidistance. This dispute over the international boundary of the Beaufort Sea creates a 6,250 nautical mile overlap of Canada s and the United States claims. Impact of Global Warming Global warming has thawed traditionally ice-covered areas of the Beaufort Sea. The thinning of the icepack has caused the Beaufort Sea to be more easily accessible to ships and has allowed for a greater influx of fish from the southern waters into the Beaufort Sea. The thinning ice pack and the new influx of fish into the Beaufort Sea have opened up the area to greater fishing and oil exploration opportunities. The United States decided to impose unilaterally a commercial fishing ban in the Beaufort Sea in response to the influx of new species of fish into the region, citing the precautionary principle. The United States did not consult with Canada before passing this law. In order to enforce their fishing ban in the disputed region of the Beaufort Sea, the United States used an armed coast guard vessel, Munro, to patrol the disputed expanse. In response to this fishing moratorium, Canada stated that the United States had illegally encroached on Canadian territory. Further, Canada stated that it would pursue a different ix

11 conservation strategy than the United States for fishing in the Beaufort Sea consisting of using catch limits and methods restrictions. When Canadian vessels attempted to fish in the disputed region, the armed Munro turned the vessels away following a tense encounter. The United States did not address Canadian protests during this period. The United States also imposed a unilateral moratorium on drilling in the disputed expanse in response to the Deepwater Horizon oil spill. The United States cited the precautionary principle in an effort to justify this ban. The United States failed to consult with Canada regarding this ban and further failed to address Canadian concerns regarding the impact of this oil exploration ban. The American government used the armed Munro to enforce this ban as well. Canada protested the unilateral imposition of the oil exploration moratorium citing national security concerns and sovereignty rights. Additionally, Canada protested the U.S. encroachment into the disputed portion of the Beaufort Sea as it is part of Canadian territory. Further, Canada informed the United States that they were going to send drillships belonging to the Shell Corporation into the disputed expanse in order to drill exploratory wells. Canada emphasized that they were convinced that the Shell Corporation could proceed safely. When Canada attempted to send three drilling vessels into the disputed section, the United States used the armed Munro, yet again, this time to turn these vessels away. Again, the United States did not respond to Canadian protests. Fortunately, up until this time, no shots have yet been fired. The Northwest Passage Dispute Canada has long maintained that the Northwest Passage is part of Canada s internal waterways. On July 1, 2010, Canada enacted the Northwest Passage Act. This federal legislation had two effects. First, it renamed the Northwest Passage, the Canadian Northwest x

12 Passage. Second, the act required that any ship of 300 tons or more passing through the Northwest Passage to first report to NORDREG a registration system maintained by the Canadian Coast Guard to state its identity, purpose, and intended route. Finally, the act provided for the detention of non-complying vessels and personnel at the next Canadian port of call and made them liable to pay up to CAN$100,000 or face one year in jail. xi

13 SUMMARY OF THE ARGUMENT The U.S. moratoriums on fishing and oil exploration violate international law. First, the disputed portion of the Beaufort Sea is part of Canadian territory. Second, Canada legally has the right to fish and explore for oil in its section of the Beaufort Sea provided that Canadian actions do not violate the country s international obligations. Third, as Canada adheres to its international obligations, U.S. enforcement of its domestic fishing and oil exploration moratoriums violates Canadian sovereignty and as a result violates international law. Alternatively, if this Court finds that the disputed expanse is not wholly Canadian territory, U.S. enforcement of its moratoriums still violates international law because the United States used threats of force to enforce the moratoriums, violating its obligation to settle disputes peacefully. U.S. military vessels need Canadian consent to transit the Northwest Passage. First, under international law, the Northwest Passage is Canadian internal waters due to the drawing of straight baselines around the Canadian Arctic Archipelago under the Third United Nations Conference on the Law of the Sea ( UNCLOS ). Second, this Court s opinion in the Norwegian Fisheries case supports the legality of drawing of straight baselines. Third, the doctrine of Historic Consolidation of Title serves to bolster the claim that the Northwest Passage is internal waters. Additionally, the Northwest Passage is precluded from being an international strait as it fails the functional prong set forth in the Corfu Channel case. ARGUMENT I. THE DISPUTED REGION OF THE BEAUFORT SEA IS CANADIAN TERRITORY AND CANADA CAN ENGAGE IN FISHING AND OIL EXPLORATION IN THE AREA. The disputed expanse of the Beaufort Sea is Canadian territory. Canada s actions in the Beaufort Sea concerning fishing and oil exploration are consistent with its international 1

14 obligations. Since Canada has not violated its international obligations, U.S. enforcement of its domestic legislation banning commercial fishing and oil exploration is in violation of Canada s sovereignty and therefore violates international law. In the event that this Court finds that the disputed portion of the Beaufort Sea is not wholly Canadian territory, the threat of the use of force to implement the U.S. moratoriums violates the U.S. international duty to peacefully resolve disputes between States. A. The disputed region of the Beaufort Sea is Canadian territory. Canada has consistently maintained that the disputed portion of the Beaufort Sea is Canadian territory. 2 The Treaty of St. Petersburg of 1825 ( The 1825 Treaty ) between Great Britain and Russia delimits the boundaries between Canada and the United States of America ( United States ) in the Beaufort Sea. 3 When the United States and Canada gained title to their respective territories, they acceded to this treaty. 4 Of particular importance to the instant case is the provision of the treaty that divides Alaska and Canada at the 141 western degree of longitude, 5 as this line has always served as Canada s boundary for the Beaufort Sea. 2 Eric LeGresley, The Law of the Sea Convention, Law and Government Division, BP-322E, 26 (1993) available at: The Beaufort Sea Dispute(txt). 3 Convention between Great Britain and Russia Concerning the Limits of its Respective Possessions on the North-West Coast of America and the Navigation of the Pacific Ocean, U.K.- Russ., art. 3(2), Feb. 16, 1825, 75 Consol. T.S. 95. [hereinafter The 1825 Treaty]. 4 See Vienna Convention on the Law of Treaties, art. 15, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT]. 5 The 1825 Treaty, supra note 3, art. 3(2). 2

15 In order to understand the intentions of the drafting parties, this Court must apply intertemporal law in interpreting The 1825 Treaty. 6 In Island of Palmas, this Court applied intertemporal law to the territorial dispute, stating that a juridical fact must be appreciated in the light of the law contemporary with it. 7 As in Island of Palmas, the application of contemporary treaties and state practices during that period will clarify the intentions of the drafting parties of The 1825 Treaty. 8 A similar treaty to The 1825 Treaty is the Russian-U.S. Treaty of 1867 ( The 1867 Treaty ), 9 which outlines the purchase of the Alaskan territory and the boundaries of that territory. The 1867 Treaty helps to clarify the intentions of Russia and Great Britain when they entered into The 1825 Treaty as Russia used similar territorial delimitation procedures when it carved out the Alaskan territory. Both The 1825 and The 1867 Treaties use the Frozen Ocean (Arctic Ocean) as the limit of the territorial claims. 10 In The 1867 Treaty, both the United States and Russia intended for the 168 degree, 49 minute, 30 second of western longitude to demark the maritime and land boundaries between the two States and expanded the maritime boundary into the Arctic Ocean. 11 This practice mirrors Canada s suggested boundary delimitation in the Beaufort Sea region at the 141 western degree of longitude. 6 Island of Palmas (U.S. v. Neth.), 2 U.N. Rep. Intl. Arb. Awards 829, 845 (Perm. Ct. Arb. 1928); see Grisbadarna (Nor. v. Swed.) Hague Ct. Rep. 122, (Perm. Ct. Arb. 1911). 7 Island of Palmas, 2 U.N. Rep. Intl. Arb. Awards at See id. 9 Treaty Concerning the Cession of the Russian Possessions in North America by his Majesty the Emperor of All the Russias to the United States of America, U.S.-Russ., art. 1(5), Mar. 30, Stat. 539 [hereinafter The 1867 Treaty]. 10 The 1825 Treaty, supra note 3, art. 3(2); The 1867 Treaty, supra note 9, art. 1(5); see LeGresley, supra note 2, at The 1867 Treaty, supra note 7, art. 1(5). 3

16 Additionally, state practice during the nineteenth century surrounding maritime boundary delimitations helps to clarify the intentions of the parties to The 1825 Treaty. By 1825, states agreed to a three-nautical-mile limit on the territorial sea. 12 From that period until the expansion of the territorial sea in the twentieth century, this three-nautical-mile limit was the international standard. 13 Hence, Canadian territorial claims as of 1825 encompassed three-nautical-miles of territorial waters in the Beaufort Sea, which international law subsequently expanded. 14 The 1825 Treaty supports Canada s position concerning the boundary dispute present in the Beaufort Sea. Canada has always held that the 141 western degree of longitude demarks its boundary in the Beaufort Sea. Furthermore, contemporaneous treaties and State practice lend support to Canada s interpretation of the boundary delimitation. Since the disputed portion of the Beaufort Sea is Canadian territory, the United States cannot enforce its domestic law on Canadian territory because this practice runs counter to international law. 15 According to the Restatement (Third) of International Law 206, a State has sovereignty over its territory and general authority over its nationals. 16 Therefore, the U.S. imposition of the fishing and oil exploration moratoriums in Canadian territory violate Canadian sovereignty and are inconsistent with international law See JOHN BASSET MOORE, A DIGEST OF INT L LAW VOL. I (1906). 13 See PHILIP C. JESSUP, THE LAW OF TERRITORIAL WATERS AND MARITIME Jurisdiction (1927). 14 See United Nations Convention on the Law of the Sea, arts. 3, 57, 77, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter referred to as UNCLOS]. 15 See U.N. Charter, art. 2, para Restatement (Third) of Foreign Affairs Law of the United States 206 (1987). 17 See generally U.N. Charter, supra note 15. 4

17 B. Canada s fishing and drilling activities in the Beaufort Sea are consistent with its international obligations, and therefore the United States moratorium is unjustified. One potential limitation on the sovereignty of a State is its international obligations. 18 Under international law, Canadian fishing and drilling operations in the Beaufort Sea must be consistent with its international obligations in order to be permissible. In the instant case, Canada s actions regarding fishing and oil exploration in the Beaufort Sea adhere to its international obligations. Therefore, no limitation on the sovereignty of Canada applies and U.S. enforcement of its fishing and oil exploration moratoriums directly infringe on Canada s sovereign territory and are inconsistent with international law. 1. Canada has not violated international law because its fishing activities in the Beaufort Sea are in line with its obligations under international law. Since the disputed region is Canadian territory, Canada can engage in fishing provided that its actions do not run counter to previous treaty obligations concerning fishing in the Beaufort Sea. Canada s current actions are consistent with Canada s international obligations regarding fishing in the disputed region. Considering Canada adheres to its international obligations regarding fisheries management, Canada can continue to fish in the disputed expanse. International legal instruments 19 impose upon States an obligation to act consistent with the precautionary principle in matters relating to commercial fishing. The precautionary principle 18 Convention on the Rights and Duties of States (inter-u.s.) art. 8, Dec. 26, 1933, 165 L.N.T.S. 19; See U.N. Charter, supra note 15, art. 2, para Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, art. 6, Aug. 4, 1995, 34 I.L.M (1995) [hereinafter Straddling Stocks]; The Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, and Fishing off the West Coast of Canada, U.S.-Can., art. 2, Mar. 29, 1979, 50 Stat. 1351; Treaty Between the Government of the United States of America and 5

18 requires states to err on the side of caution 20 when engaging in fishing activities in vulnerable ecosystems. 21 International fisheries management organizations and other international fishery management treaties impose catch limits and methods restrictions to ensure adherence to the precautionary principle. 22 For example, Article 6(3) of the United Nations Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks references the use of catch limits and methods restrictions as a way to give effect to the precautionary principle. 23 Canada s Department of Fisheries and Oceans has implemented catch limits and methods restrictions mandated in these international fishery agreements. 24 Canada has many safeguards to ensure that Canadian commercial fishers adhere to the precautionary principle. First, Canada has memorialized the precautionary principle in its domestic legislation through the Oceans Act of This act requires that Canadian authorities use the precautionary principle about issues surrounding ocean management. 26 In the Government of Canada Concerning Pacific Salmon, U.S.-Can., arts. 3, 4, Mar. 18, 1985, T.I.A.S Oceans Act, 1996 S.C., ch. 30(c) (Can.). 21 See, e.g., Oceans Act, supra note 19, ch. 31; See, e.g., Canada Wildlife Act, 1985 R.S.C., ch. W-9 (Can.); Canada National Marine Conservation Areas Act, 2002 S.C., ch. 18 (Can.); Migratory Birds Convention Act, 1994, S.C., ch. 22 (Can.). 22 See supra note Straddling Stocks, supra note 19, art. 6(3). 24 Memorandum from the Canadian Department of Fisheries and Oceans on the Integrated Management Plan (Jun. 10, 2010) available at: 25 Oceans Act, supra note Id, ch. 30(c). 6

19 addition to the Oceans Act, Canada passed the Fisheries Act 27 that provides punishments for commercial fishers who fail to adhere to Canadian catch limits or fishing moratoriums. Furthermore, the Canadian Department of Fisheries and Oceans employs the precautionary principle in its conservation policy of using catch limits and methods restrictions. 28 Canada s current strategy for fishing in the Beaufort Sea is consistent with the precautionary principle. Canada enforces domestic laws, which state that Canadian commercial fisheries must adhere to the catch limits and method restrictions proposed by the Canadian Department of Fisheries and Oceans. 29 As per Canadian law, domestic catch limits and methods restrictions adhere to international law. 30 In accordance with Canada s international fishery obligations, Canada can continue to fish existing species in the Beaufort Sea in its allotted amounts. 31 Canada continues to fish these new stocks in adherence to its international obligations as Canada has done many times in the past Canada has not violated international law because its oil exploratory efforts in the Beaufort Sea are in line with its obligations under international law. 27 Fisheries Act, 2009 R.S.C., ch. F-1, art Memorandum from Fisheries and Oceans Canada on Governance and Diplomacy (Feb. 3, 2009) available at: supra note See Press Release, Fisheries and Oceans Canada, Sentences by Virtue of the Fisheries Act (Mar. 8, 2010). 30 Straddling Stocks, supra note 19, art. 6(3). 31 See Western and Central Pacific Fisheries Commission, Conservation and Management Measures, and Resolutions, WCPFC/Comm2/29 (Dec. 14, 2005); Northern Pacific Anadromous Stocks Fish Commission, 2010 NPASFC Documents, NPASFC/Doc (2010). 32 See supra note 28. 7

20 The disputed expanse is Canadian territory and Canada is legally entitled to engage in exploratory oil drilling under international law provided that Canada s actions do not violate its international obligations regarding oil exploration. Canada s current actions are consistent with its international treaty obligations regarding oil exploration. Environmental treaties that Canada is a party to, such as the Convention on Biological Diversity 33 and Agreement on Arctic Cooperation, 34 emphasize the importance of protecting environmental integrity in the Arctic region. 35 Canadian domestic laws include the precautions set forth in these international agreements, which allows Canada to drill in the Beaufort Sea without violating international law. Canada has taken many affirmative legal steps to make sure that they protect the Arctic environment before engaging in oil exploration in the Arctic region. First, the Oceans Act of 1996 applies to oil exploration that occurs in the oceans and seas surrounding Canadian territory, which creates an affirmative domestic legal obligation to ensure that interested parties follow the precautionary principle. 36 Second, the Canada Oil and Gas Operations Act relates directly to protecting the environment before the Canadian government allows companies to engage in offshore drilling. 37 Third, both the Canada Oil and Gas Land Regulation and the Canada 33 Convention on Biological Diversity of the United Nations Conference on the Environment and Development, opened for signature June 5, 1992, 31 I.L.M Agreement Between the Government of Canada and the Government of the United States of America on Arctic Cooperation, U.S.-Can., art. 2, Jan. 11, 1988, T.I.A.S See also Agreement on the Conservation of the Porcupine Caribou Herd, U.S.-Can., July 17, 1987, T.I.A.S. No ; Agreement on the Conservation of Polar Bears, U.S.-Can., Nov. 15, 1973, 27 U.S.T. 3918, TIAS No Oceans Act, supra note 19, preamble, ch. 30(c). 37 Canada Oil and Gas Operations Act, 2010 R.S.C., ch. O-7 (Can.). 8

21 Petroleum Resources Act govern offshore oil production and require oil companies to obtain different types of permits depending upon the activity they seek to perform. 38 Canada has taken several affirmative steps regarding oil exploration to follow the precautionary principle. Most notably, Canada has not yet engaged in offshore production well drilling in the Beaufort Sea. 39 On May 11, 2010, The Canadian National Energy Board ( NEB ) announced a review of Arctic Safety and Off-Shore Drilling Requirements. 40 The NEB has declared that they will not accept applications for drilling in the Arctic waters, including the Beaufort Sea, until they are satisfied that the oil companies engaged in this offshore drilling will meet Canada s rigid environmental and safety guidelines for drilling in the Arctic region. 41 Canada can drill exploratory wells in the Beaufort Sea because its actions are consistent with its international environmental obligations. Canada has not issued any oil production permits to any oil companies, electing instead to issue to Shell an exploratory permit to determine if the site is viable for oil production. 42 As per Canadian law, oil companies seeking to drill exploratory wells in the Beaufort Sea must follow stringent domestic regulations that ensure 38 Canada Oil and Gas Land Regulation, 2010 C.R.C., ch. 1518; Canada Petroleum Resources Act, 2010 R.S.C. ch. 36 (2nd Supp.)(Can.). 39 Gaétan Caron, Chair and Chief Executive Officer National Energy Board, Opening Statement at National Energy Board's Appearance before the Standing Committee on Natural Resources Emergency Response to Offshore Oil and Gas Drilling (May 13, 2010). 40 Press Release, National Energy Board, National Energy Board Announces Review of Arctic Safety and Environmental Offshore Drilling Requirements (May 10, 2010). 41 Memorandum from the National Energy Board on Artic Offshore Drilling Review (Dec. 22, 2010) available at: 42 See generally Canada Oil and Gas Land Regulation, supra note 38. 9

22 that the risk of environmental harm is significantly reduced. 43 At the moment, Canada is proceeding cautiously with potential oil production in the Beaufort Sea, and its current actions are consistent with its international obligations. Since Canada controls the territory in question and has not violated any of its treaty obligations, international law does not permit the U.S. enforcement of the fishing and oil exploration moratoriums. These moratoriums are illegal because they infringe on Canadian sovereignty. 44 C. U.S. unilateral enforcement of the fishing and oil exploration moratoriums in the disputed portion of the Beaufort Sea violate its obligation to peacefully settle disputes. Alternatively, if this Court finds that the disputed expanse is not wholly Canadian territory, the U.S. threat of force when implementing the fishing and oil exploration moratoriums run counter to international law. International law requires that parties attempt to resolve disputes peacefully before using force to accomplish its goals. 45 Article 2(3) of the United Nations Charter ( UN Charter ) highlights this viewpoint, stating that all Members shall settle its international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 46 Additionally, countermeasures must refrain from the threat of the use of force outlined in the UN Charter as indicated by Article 50(1)(a) of the International 43 See generally id. 44 See U.N. Charter, supra note 15, arts. 2, para Id. 46 Id. art. 2(3). See also id. arts. 1, 12,

23 Law Commission Articles on State Responsibility ( ILC ). 47 The exception to this principle is in cases of self-defense in the event of an armed attack. 48 The actions of the United States in the instant case violate its obligations to settle disputes peacefully. The United States enforced its ban through the threat of military force rather than by peaceful negotiations in violation of the UN Charter. This violation was evident by the U.S. government sending an armed coast guard vessel, the Munro, to impose the moratoriums. The U.S. government persisted with these threats of violent enforcement despite peaceful protests by the Canadian government. Furthermore, even if Canada was in violation of international law, the U.S. actions in the disputed region were not a legal countermeasure. The U.S. use of the Munro does not constitute a lawful countermeasure to the alleged breach of international law because the United States was not acting in self-defense and decided to enforce its position through threat of force rather than through peaceful means, which is explicitly forbidden by Article 50(1)(a) of the ILC. 49 Since America attempted to enforce its unilateral ban of fishing and oil exploration in the disputed area through the threat of violence, the United States has violated international law. II. THE NORTHWEST PASSAGE CONSTITUTES INTERNAL CANADIAN WATERS UNDER INTERNATIONAL LAW AND THERE EXISTS NO RIGHT FOR U.S. MILITARY VESSELS TO TRANSIT IT WITHOUT THE CONSENT OF THE CANADIAN GOVERNMENT. The Northwest Passage constitutes internal Canadian waters. First, the Northwest Passage is Canadian internal waters under the straight baselines test articulated in Article 7 of UNCLOS. Second, the application of the doctrine Historic Consolidation of Title buttresses this claim. 47 See Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83 Art. 50(1)(a) (Dec. 12, 2001) [hereinafter ILC]. 48 See U.N. Charter, supra note 15, art ILC, supra note 47, art. 50(1)(a). 11

24 Third, the Northwest Passage cannot be an international strait as it fails to meet the requirements set by this Court in the Corfu Channel case. As the Northwest Passage is internal Canadian waters, no right of transit exists and U.S. military vessels cannot transit it without the consent of the Canadian government. A. The Northwest Passage constitutes internal Canadian waters under UNCLOS and the Norwegian Fisheries case. Under UNCLOS, the Northwest Passage constitutes internal Canadian waters. Although the United States is not a signatory to UNCLOS, the United States has agreed to be bound by all of the provisions contained in UNCLOS, except for those related to deep-sea mining. 50 This fact makes application of the UNCLOS articles relevant in this case. This Court s ruling in the Norwegian Fisheries case supports the drawing of straight baselines in the instant case. Furthermore, the exception to the prohibition of passage through internal waters found in Article 8 of UNCLOS is inapplicable here. 1. Northwest Passage meets the geographic requirements of Article 7 of UNCLOS for the drawing of straight baselines. International law permits Canada to draw straight baselines around the Arctic Archipelago. Article 7 of UNCLOS declares that [i]n localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. 51 The Canadian Arctic coastline consists of 50 Ronald Reagan, 40 th President of the United States, Statement on United States Oceans Policy (Mar. 10, 1983). 51 UNCLOS, supra note 14, art. 7(1). 12

25 islands along the coast in the immediate vicinity of the mainland, 52 which makes application of Article 7 of UNCLOS appropriate. 2. The Northwest Passage meets all the requirements articulated in the Norwegian Fisheries case, and therefore the drawing of straight baselines is permitted. The Norwegian Fisheries case shaped the Article 7 method ( straight baselines test ) found in UNCLOS. In the Norwegian Fisheries 53 case, this Court articulated two compulsory requirements to permit the drawing of legal baselines around coastal regions by using the straight baseline test found in Article 7 of UNCLOS. The first requirement is that the baselines cannot depart an appreciable extent from the general direction of the coast. 54 The second requirement is that the waters lying within the baselines must be sufficiently closely linked to the mainland of the coastal State as to be considered internal waters. 55 The Court also considered whether the waters in question represented economic interests to the region evidenced by long usage as a third, non-compulsory, factor. 56 The drawing of straight baselines in the instant case is permitted under international law as Canada satisfies all three requirements put forth by this Court in the Norwegian Fisheries case. a. The baselines drawn by Canada do not depart an appreciable extent from the general direction of the Canadian coastline. Canada satisfies the first factor articulated by this Court in the Norwegian Fisheries case. The first factor requires that baselines not depart to any appreciable extent from the general 52 Compromis, Annex Norwegian Fisheries (U.K. v. Nor.), 1951 I.C.J. 116 (Dec. 18). 54 Id. at UNCLOS, supra note 13, art. 7(3). See also Norwegian Fisheries, 1951 I.C.J. at Norwegian Fisheries, 1951 I.C.J. at

26 direction of the coast. 57 In the Norwegian Fisheries case, this Court held that the skjaergaard (Norwegian Archipelago) determined the actual Norwegian coastline as the skjaergaard represented an extension of the coastline. 58 Just like the Norwegian skjaergaard determined the actual Norwegian coastline, the Canadian coastline should be determined by the location of the components of the Canadian Arctic Archipelago. 59 Since the components of the Canadian Arctic Archipelago are an extension of the coastline, they should determine the actual Canadian. As such, the baselines drawn around the Arctic Archipelago do not depart an appreciable extent from the general direction of the coast. 60 b. There exists a close link between the Canadian archipelago and the Northwest Passage under the sea to land test. Canada satisfies the second factor discussed by this Court in the Norwegian Fisheries case, as it has a close land to sea link. 61 In the Norwegian Fisheries, case this Court found a close land to sea link. 62 Experts state that a ratio of sea to land test, where there is a comparison of the ratio of the land present within an archipelago and the total land area in that same region, is the best 57 Id. 58 Id. at See DONAT PHARAND, CANADA S ARCTIC WATERS IN INTERNATIONAL LAW 162 (Cambridge University Press 1988). 60 See Mark Jarashow, Michael B. Runnels, & Tait Svenson, UNCLOS and the Arctic: The Path of Least Resistance, 30 FORDHAM INT L L.J. 1587, (2007). 61 Norwegian Fisheries, 1951 I.C.J. at Id. at

27 way to determine the existence of a close link of land to sea. 63 Additionally, the presence of ice supports the notion that there is a close land to sea link as the ice bolsters the physical unity between the land and the sea. 64 Canada has a closer land to sea link than Norway did in the Norwegian Fisheries case. A comparison of the ratios of land to sea for the Arctic Archipelago and the Norwegian skjaergaard proves the closer link. Whereas the Canadian Arctic Archipelago has a land to sea ratio of 0.82 to 1, the land to sea ratio of the Norwegian skjaergaard had a much lower ratio of 3.5 to Furthermore, Canada maintains that its sovereignty in the Arctic embraces land, sea, and ice and extends without interruption to the Arctic islands that are joined by the waters between them. 66 c. The waters of the Northwest Passage represent economic interests peculiar to the region evidenced by long usage. The present case also satisfies the third, non-compulsory, factor from the Norwegian Fisheries case as the Northwest Passage represents economic interests peculiar to the region. In the Norwegian Fisheries case, this Court took note of the use of the disputed area by Norwegian fisherman from time immemorial 67 and the fact that livelihood of the inhabitants was derived from fishing in the disputed area See Jarashow, supra note 60, at See Pharand, supra note 59, at See id. 66 See Joe Clark, Former Canadian Secretary of State for External Affairs, Statement on Sovereignty, (Sep. 10, 1985). 67 Norwegian Fisheries, 1951 I.C.J. at Id. at

28 Just as the Court found in the Norwegian Fisheries case, Canada has peculiar economic interests in the Northwest Passage as the Canadian indigenous populations has relied for centuries on the disputed area to survive. 69 Canada has long asserted that the Inuit people have used and occupied the ice since time immemorial. 70 Furthermore, Canada maintains that the lifestyle of the Canadian Inuit living in the Arctic Archipelago is economically significant to Canada. 71 As such, Canada has a significant economic interest in the Northwest Passage stemming from long usage as demonstrated by the importance of the region to the Inuit. 3. The exception to the denial of passage through internal waters found in Article 8 of UNCLOS does not apply as there is no pre-existing navigational regime. The exception outlined Article 8 of UNCLOS provides an inapplicable exception to the right of a State to deny passage through internal waters to foreign vessels. Article 8 of UNCLOS provides that [w]here the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters. 72 This rule was intended to apply when there had been a pre-existing navigational regime. 73 In the instant case, a pre-existing navigational regime does not exist. 74 Therefore, the 69 SARAH BONESTEEL, RELATIONSHIP WITH INUIT: A HISTORY OF POLICY AND PROGRAM DEVELOPMENT 111 (Indian and Northern Affairs Canada, 2006). 70 See Clark, supra note See id. See generally Bonesteel, supra note UNCLOS, supra note 14, art. 8(2). 73 Kimberly C. Gordy, Dire Straits: The Necessity for Canadian Sovereignty in the Arctic Waterways, 20 FORDHAM L. REV 551, (2010). 74 See infra note 93 and accompanying text. 16

29 Article 8 exception is inapplicable in regards to the Northwest Passage. B. The Northwest Passage is internal Canadian waters under Historic Consolidation of Title. The Northwest Passage is internal Canadian waters under the doctrine of Historic Consolidation of Title. The doctrine of Historic Consolidation of Title serves as a subsidiary basis, confirming a State s title to a maritime area that is considered internal waters due to the establishment of straight baselines. 75 The foundation for the theory of Historic Consolidation of Title comes from the Grisbadarna case. 76 To prove this theory, a State must prove three elements. First, the State in question must have either discovered the land or received title to the land from the previous sovereign. 77 Second, the State in question must maintain administrative control over the land. 78 Third, the natural inhabitants must have peacefully possessed the land for a long period of time. 79 Canada received title by virtue of discovery by English and French explorers, satisfying the first requirement in the Grisbadarna case. The international community has accepted Canada s claim that is has received title from a previous sovereign over the Arctic Archipelago as no nation, including the United States, challenges Canada's sovereignty over the region Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.) 2002 I.C.J. 303, 581 (Oct. 10). 76 See generally Grisbadarna, supra note Id. at Id. at Id. at 132, N.C. Howson, Breaking the Ice: The Canadian-U.S. Dispute over the Arctic's Northwest Passage, 26 COLUM. J. TRANSNAT'L L. 337, 346 (1988). 17

30 Canada has promulgated numerous laws affecting this region, demonstrating its maintenance of administrative control. On July 1, 2010 Canada enacted the Northwest Passage Act 81, which joined a host of other Canadian legislation affecting the region. 82 In addition to enacting regulations over the region, Canada has also enforced these regulations. 83 The Canadian position satisfies the third requirement of peaceful possession of the region by the natural inhabitants for a long time. Canada considers the Indian, Inuit and Métis peoples native Canadians 84 and archeological evidence indicates that the Inuit have been using the disputed waters since pre-historic time. 85 As Canada satisfies the aforementioned three requirements, the Northwest Passage is Canadian internal waters. C. The Northwest Passage is not an international strait as it does not meet the functional requirements of Corfu Channel test. The Northwest Passage is not an international strait as it is not currently utilized for international navigation. The Corfu Channel case lays out the necessary requirements for a body of water to be considered an international strait. In that case, this Court held that in determining whether a body of water is a strait the decisive criterion is its geographical situation as connecting two parts of the high seas and the fact of its being used for international 81 Compromis, See Arctic Water Pollution Prevention Act, 1985 R.S.C., ch. A-12 (Can.); Canada Shipping Act, 2001 S.C., ch. 26 (Can.); Oceans Act, supra note 20, ch. 31; Canada Wildlife Act, supra note 21, ch. W-9; Canada National Marine Conservation Areas Act, supra note 21, ch. 18; Migratory Birds Convention Act, supra note 21, ch See Press Release, Transport Canada, Arctic Marine Polluter Edgar Kotokak Fined $10,000 (July 7, 2008). 84 The Constitution Act, 1982, Schedule B, Part II (2) (Can.). 85 See Bonesteel, supra note 69, at v. 18

31 navigation. 86 The Vienna Convention on the Law of Treaties ( VCLT ) requires that the parties interpret a treaty with the ordinary meaning of words unless otherwise specified. 87 The word and in its normal usage requires both the condition preceding it and the condition following it to be satisfied in order for the conjunctive requirement to be met. As such in the instant case, both the geographical and functional requirements must be met. In order to satisfy the geographical component of the test, the body of water has to join two high seas. 88 Canada concedes that the Northwest Passage joins two high seas. The Northwest Passage does not meet the functional prong of the test. To satisfy the functional prong, the body of water in question must be used for international navigation. 89 In interpreting the text of the functional requirement, only those bodies of water that are currently in use for international navigation meet the functional requirement because it is not enough that a body of water merely has potential for use in international navigation. Furthermore if a body of water is used for navigation, it is considered to have met the functional component only when there have been a sufficient number of transits to qualify it as a useful route for international maritime traffic. 90 The Corfu Channel case indicates that the number of ships, the number of different countries using the alleged strait, and the totality of the ships that travel through the strait are the most important concerns when considering the element of functionality. 91 The Court 86 Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 28 (Apr. 9). 87 VCLT, supra note 4, art Corfu Channel, 1949 I.C.J. at Id. 90 Id. at Id. 19

32 put weight on the fact that at least 2,884 ships had crossed the Corfu Channel in a twenty-one month period in finding that the Corfu Channel was used for international navigation. 92 The Northwest Passage does not meet the Corfu Channel functional requirement for an international strait as it is not currently in use for international navigation. For example, less than fifty transits of the Northwest Passage have been completed since 1903; Canadian vessels accounted for all but sixteen of the crossings; few of these transits were for commercial use; and the first commercial transit occurred in September of As such, there is no established history of international shipping through the Canadian Northwest Passage and therefore the Northwest Passage is not an international strait under international law. CONCLUSION The disputed expanse of the Beaufort Sea is Canadian territory and the enforcement of the U.S. moratorium violates international law. Furthermore, the Northwest Passage constitutes Canadian internal waters. For these reasons, Canada requests this Court to find the U.S.-imposed bans on fishing and oil exploration in the Beaufort Sea contrary to international law and to require U.S. military vessels to obtain Canadian consent before transiting the Northwest Passage. 92 Id. 93 Jarashow, supra note 60, at