Law of the Sea

Law of the Sea

Law of the Sea, for about 300 years, was to a large extent determined by principles of customary law. Coastal states claimed sovereignty over a narrow belt of territorial sea; on the rest of the seas (the "high seas"), the basic principle of freedom of the seas reigned. This freedom was interpreted as freedom to navigate, fish, trade, travel, make war or conduct research. In 1967, in response to a perceived need for change in the law of the seas, the United Nations began complex and painstaking multilateral negotiations. This ambitious venture consisted of a conference (with several sessions) which spanned 15 years and produced a comprehensive set of laws dealing with the seas known as the United Nations Convention of the Law of the Sea (UNCLOS). Even prior to its entry into force on November 16, 1994, UNCLOS produced significant developments in the Law of the Sea. Canada signed the Convention in December 1982 and ratified it in November 2003. With the longest coastline in the world, Canada has a wide range of interests in the sea and a substantial stake in the new law of the sea. It therefore played a leading role in shaping the convention.

In recent years, Canada has focused its attention on issues concerning territorial sea, fisheries, mineral resources, marine environment, passage through international straits and control over the arctic waters. Between 1956 and 1977, Canada moved from claiming the traditional 3-mile territorial seas to claim a 12-mile territorial sea and exclusive jurisdiction over fisheries within 200 miles of its coast and over mineral resources of its continental shelf. Canada accepted the concept of a 200-mile exclusive economic zone (EEZ) that emerged from UNCLOS negotiations. The convention provides that coastal states will have sovereign rights over the exploitation of the resources of the 200-mile EEZ and certain rights in respect of the preservation of the marine environment and the conduct of marine scientific research. Canada was unsuccessful in its attempt to obtain preferential rights to harvest fish stocks beyond 200 miles but was successful in obtaining recognition of its primary interest in the conservation and management of anadromous species (eg, salmon) throughout the limits of their migratory range.

Protection of Fish Stocks

Difficulties with protecting straddling fish stocks outside Canada's 200-mile economic zone became evident in recent years when it appeared that the turbot, because of extensive fishing, was in danger of becoming extinct. In March 1995, Canadian Fisheries Department officers, acting pursuant to the Coastal Fisheries Protection Act, seized a Spanish fishing vessel that was fishing turbot in international waters off the coast of Newfoundland.

Spain brought a claim against Canada before the International Court of Justice alleging, among other things, a breach of the customary right to fish on the high seas, a right codified in UNCLOS. One significant consequence of the turbot controversy is the recently established United Nations Treaty on Straddling and High Migratory Fish Stocks. The treaty gives coastal states such as Canada direct enforcement powers to control excessive fishing for migratory stocks such as cod or turbot.

Reservation of the Seabed

Canada lent its support to the innovative UNCLOS idea that the international seabed be reserved for peaceful purposes and that the area be designated the "common heritage of mankind." The convention provides for international machinery both to control and to undertake exploitation of the international seabed. Throughout the UNCLOS negotiations, Canada had been particularly concerned about the possible adverse effects of deep-sea mining on Canadian land-based nickel production. Canadian mining interests are somewhat protected by a formula in the convention that sets limits to seabed production in relation to land production.

Responding to states which were in the position to conduct deep sea-bed mining and which up until the early nineties had failed to ratify UNCLOS, the United Nations General Assembly on 28 July 1994 adopted the agreement on the implementation of Part XI (deep sea-bed mining) of the convention. The new agreement is intended to facilitate widespread participation, especially by those states that are potential sponsors of deep sea-bed mining. However, it now limits full implementation of the deep sea-bed regime to the time when deep sea-bed mining becomes economically viable under free market principles

The Arctic Islands

Canada has asserted that the waters of the arctic archipelago, including the Northwest Passage, constitute internal waters. As a manifestation of this claim, in 1970 Canada passed the Arctic Waters' Pollution Prevention Act. The act gave the Canadian government rights over a 100-mile pollution control zone around the arctic islands. Despite protests by the US, Canada has persevered in its claim over the arctic waters; during UNCLOS negotiations Canada was actively involved in a campaign to obtain coastal-state rights to prescribe and enforce pollution control standards. Although the convention recognizes only limited coastal-state environmental powers, it does include the so-called arctic exception, which permits Canada to take antipollution measures in ice-covered areas.

Issue of Marine Pollution

UNCLOS gave prominence to the issue of marine pollution by establishing a general framework for global and regional cooperation in the protection and preservation of the marine environment. The United Nations Conference on Environment and Development held in Rio de Janeiro in 1992 built upon principles emerging from the Stockholm Conference and UNCLOS. The Rio Conference formally established sustainable development as a principle of international law and endorsed the principles contained in UNCLOS. The absence of effective enforcement mechanisms in these agreements are a significant drawback to progress in this area.

Canada attempted to project further its claim in the Arctic by ensuring that the Northwest Passage does not become subject to the rules that pertain to passages through international straits. Canada has consistently asserted that the passage is not a strait and therefore that the right of "transit passage" (ie, a right to navigate through the passage freely) cannot be claimed. In 1985, responding directly to the voyage of the US icebreaker Polar Sea, which traversed the Northwest Passage, Canada announced its decision to exercise full sovereignty in and over the waters of the Arctic Archipelago.

Canada's offshore claims have overlapped with those of 3 different countries at 6 points: with Denmark over the area between Greenland and the Canadian Arctic; with France over the area between Newfoundland and the islands of Saint-Pierre and Miquelon; with the US over the Strait of Juan de Fuca, the Dixon Entrance, the Beaufort Sea and the Gulf of Maine. The Gulf of Maine boundary dispute, which centered on competing claims to the resources-rich area known as Georges Bank, was submitted to a special Chamber of the International Court of Justice. In 1984 the chamber arrived at an "equitable solution" and determined a single maritime boundary between Canada and the US in a large portion of the Gulf of Maine area.

Maritime Boundaries

Both Canada and France's differing approaches to the issue of maritime boundaries for the islands of Saint-Pierre and Miquelon were resolved by a 1992 Arbitral Award. The Canadian arbitrator dissented on the basis that the judgement was not in accordance with the international law requirement that a court carrying out a maritime determination employ equitable principles to reach an equitable result. The boundary dispute over Greenland has been resolved by an agreement with Denmark that draws an adjusted median line through the Continental shelf between the 2 countries. Outstanding maritime boundaries with the bound states remain unresolved.

Although the terms of the Law of the Sea have the force of treaty law only for state parties to the Convention, some state parties are observing these terms in practice. Many are awaiting ratification by some significant states, notably Russia and the US. On 22 November 1994, a formal meeting of the states parties to the convention decided to defer the first election of the judges of the International Tribunal on the Law of the Sea until 1 August 1996.