¹ The S.S. Manhattan, a 115,000-ton oil tanker owned by the Humble Oil Co., a subsidiary of Standard Oil Co. of New Jersey, was specially modified for the voyage into an ice-breaking vessel of 43,000 h.p. The ship sailed on August 24, 1969, and completed navigation of the Passage on September 14, 1969. For an account of its voyage see Keating, B., “North for Oil. Manhattan Makes the Historic Northwest Passage,” (1970) 137 National Geographic 374–91.Google Scholar

² For a reference to the special place the North has in Canadian nationalistic sentiment see Lloyd, , “Canada’s Arctic in the Age of Ecology,” (1970) 48 Foreign Affairs 726,CrossRefGoogle Scholar and Prime Minister Trudeau’s address to the Canadian Press, Toronto, April 15, 1970, Statements and Speeches, No. 70/3. Cohen, Maxwell (“The Arctic and the National Interest,” (1971) 26 Int’l J. 52, 56–7), has written that:Google Scholar

To some extent, this mystique of the northwest passage has become the ironic centre of the story: the beginning as well as the existentialist movement of the Arctic saga. For it is the use of that passage … and its potential for tomorrow, old and frustrating as the search has been, that gives rise to most of the present efforts in Canada to define with greater precision the scope of its Arctic jurisdiction.

³ Can. H.C. Deb., Vol. VIII, May 15, 1969, at 8720.

⁴ The following sources deal with the history of Canada’s claims to the Arctic: Johnston, V.K., “Canada’s Title to the Arctic Islands,” (1933), 14 C.H.R. 24–31.Google Scholar

Head, Ivan L., “Canadian Claims to Territorial Sovereignty in the Arctic Regions,” (1962–63) 9 McGill L.J. 200–26.Google Scholar

Smith, Gordon W., “Territorial Sovereignty in the Canadian North, A Historical Outline of the Problem,” paper prepared for the Department of Northern Affairs (1963),Google Scholar and “Sovereignty in the North: The Canadian Aspect of an International Problem,” in Macdonald, R. St.J., ed., The Arctic Frontier (Toronto, 1966).Google Scholar

Pharand, Donat, The Law of the Sea of the Arctic with Special References to Canada (Ottawa, 1973).Google Scholar This book incorporates Pharand’s earlier articles on the Arctic, but he does come to different conclusions on some of the issues in light of recent developments. See “Freedom of the Seas in the Arctic Ocean,” (1969) 19 U. of To. L.J. 210–33; “The Legal Status of the Ice Shelves and the Ice Islands in the Arctic,” (1969) Les cahiers de droit 461; “The Waters of the Canadian Arctic Islands,” (1969) 3 Ottawa L.Rev. 414; “Historic Waters in International Law, with special reference to the Arctic,” (1971) 21 U. of To. L.J. 1–14; “The Continental Shelf Redefinition, with special reference to the Arctic,” (1972) 18 McGill L.J. 536–59.

⁵ Dominion Order In Council, P.C. No. 1839 (Sept. 23, 1882), cited in Smith, , “Historical Outlines,” supra, note 4, at 6.Google Scholar

⁶ Bernier, J.E., “Report on the Dominion of Canada Government Expedition to the Arctic Islands and Hudson Strait on board the C.G.S. ‘Arctic’” (Ottawa, 1910), 192.Google Scholar

⁷ See V. K. Johnston, supra, note 4, at 31.

⁸ Island of Palmas Case, (1928) 22 Am. J. Int’l L. 867; Clipperton Island Case, (1932) 26 Am. J. Int’l L. 390; Eastern Greenland Case, (1933) Per. Cf. Int. Jus., Ser. A/B, No. 53, at 22.

⁹ Smith, , “A Historical Summary of Maritime Exploration in the Canadian Arctic and Its Relevance in Connection with Subsequent and Recent Sovereignty Issues,” (1970), 26, cited in Pharand, , The Law of the Sea of the Arctic, supra, note 4, at 134.Google Scholar

¹⁰ Pharand, ibid., at 134, fn. 116. It should be noted, however, that the simple delineation of boundaries on maps does not serve as a legal basis for the acquisition of sovereignty, particularly with regard to water areas.

¹¹ Can. Sen. Deb., February 20, 1907, at 271.

¹² In 1925, the Minister of the Interior, the Hon. Charles Stewart, in replying to a question asked in the House stated that Canada’s sovereignty extended all the way to the North Pole: Can. H.C. Deb., Vol. IV, 1925, at 3773. And in 1938, the Minister of Mines and Resources, the Hon. T. C. Crerar, stated that on the basis of the sector principle Canadian sovereignty extended right to the Pole: Can. H.C. Deb., Vol. III, 1938, at 3081.

¹³ Pearson, L.B., “Canada Looks Down North,” (1946) 24 Foreign Affairs 638, 639.CrossRefGoogle Scholar

¹⁴ Can. H.C. Deb., Vol. VII, August 3, 1956, at 6958.

¹⁵ Can. H.C. Deb., Vol. VI, 1969, at 6396.

¹⁶ Supra, note 3. Emphasis added.

¹⁷ “Claim Arctic to Curb Α-arms: Pearson,” The Globe and Mail, October 22, 1969, at 1–2.

¹⁸ See Butler, William E., “The Legal Regime of Russian Territorial Waters,” (1968) 62 Am. J. Int’ L. 51–77.CrossRefGoogle Scholar Professor Maxwell Cohen has taken the view that the Russians until recently possibly claimed jurisdiction on a sector basis over the waters including all or part of the high seas: “The Arctic and the National Interest,” supra, note 2, at 60–1. Soviet jurists have gone so far as to describe the Kara, Lapter, Chukchi, and East Siberian Seas as internal waters, although the Soviet government has never officially advanced such claims.

¹⁹ Pharand, , The Law of the Sea of the Arctic, supra, note 4, at 144.Google Scholar

²⁰ Morin, J.-Y., “Le progrès technique, la pollution et l’évolution récente du droit de la mer au Canada, particulièrement à l’égard de l’Arctique,” (1970) 8 Canadian Yearbook of International Law 158, 240.Google Scholar

²¹ Minutes and Proceedings, Standing Committee on External Affairs and National Defence, No. 26, February 12, 1969, at 942.

²² “Dief Fears Arctic Loss,” The Ottawa Journal, March 1, 1969, at 1.

²³ “Trudeau admits Arctic jurisdiction is in dispute,” The Globe and Mail, March 8, 1969, at 4.

²⁴ At a Canadian-American ministerial meeting in June 1969, Mr. Alexis Johnson, Under-Secretary of State for Political Affairs, emphatically disputed any Canadian claim extending beyond the three-mile territorial limit around the Arctic islands: The New York Times, September 19, 1969, at 3.

²⁵ Supra, note 3.

²⁶ Ibid.

²⁷ Can. H.C. Deb., Vol. Vili, May 20, 1969, at 8826.

²⁸ Report of the Standing Committee on Indian Affairs and Northern Development, No. 28, May 29, 1969. Both the chairman and the vice-chairman of this committee (Ian Watson and Paul St. Pierre) were members of the Liberal party and were very vocal in their demands that their government take a strong stance on sovereignty.

²⁹ “Arctic bid this fall, PM says,” The Globe and Mail, Sept. 12, 1969, at 1.

³⁰ Speech given at South Porcupine, Northern Ontario: “Northwest Passage area to be termed as land in Canada’s bid for sovereignty,” The Globe and Mail, Sept. 27, 1969, at 10.

³¹ Ibid.

³² “A ship and sovereignty in the North,” The Globe and Mail, Sept. 18, 1969, at 7. The same point was made in a brochure prepared for news correspondents by the Department of Energy, Mines and Resources on the topic of Canadian input to the Manhattan voyage.

³³ Ibid.

³⁴ Ibid.

³⁵ Ibid.

³⁶ Can. H.C. Deb., Vol. I, October 24, 1969, at 39.

³⁷ Ibid., at 40.

³⁸ Ibid.

³⁹ “Trudeau plays down Arctic control issue,” The Globe and Mail, Nov. 12, 1969, at 1.

⁴⁰ This view emerged in the writer’s interviews with Canadian government officials in Ottawa in November 1969.

⁴¹ “Soft-pedal on Arctic sovereignty challenged by Tory,” The Globe and Mail, January 20, 1970, at 2.

⁴² See Votes and Proceedings of the House of Commons of Canada, No. 38, December 16, 1969, at 207–10. The Government prevented a motion accepting the committee’s report from coming to a vote.

⁴³ One of the P.M.’s closest advisers at this time was his legislative assistant, Ivan Head, who had completed his master’s thesis at Harvard on Canadian claims to territorial sovereignty in the Arctic.

⁴⁴ “Sharp makes claim to Arctic waters,” The Globe and Mail, February 20, 1970 at 1. This response was triggered by President Nixon’s statement to Congress on international oceans where concern was expressed over claims of sovereignty over ocean waters. Although the statement did not expressly refer to Canada, a State Department spokesman said that it applied to the Northwest Passage.

⁴⁵ Ibid.

⁴⁶ See Can. H.C. Deb., March 16, 1970, Appendix, S. 156.

⁴⁷ C-202, 28th Pari. 2nd. Session, reprinted in (1970) 9 Int’l Legal Materials 543.

⁴⁸ C-203, ibid., at 553. The Bill became the Act to Amend the Territorial Sea and Fishing Zones Act 1970, 18–19 Eliz. 2, c. 68 (Can.), and was also given Royal Assent on June 26. It extended Canada’s territorial sea from three miles to twelve miles; it also authorized the government to establish exclusive Canadian fishing zones in marine areas adjacent to the coasts of Canada but beyond the new twelve-mile territorial sea.

⁴⁹ 1970, 18–19 Eliz. 2, c. 48 (Can.). It received Royal Assent on June 26, 1970, but was not proclaimed until August 2, 1972.

⁵⁰ The unanimous vote was 198 to o and was purposely staged to “let the whole world know that on this question Canadians are united and unanimous,” see The Globe and Mail, April 22, 1970, at 1; see also the editorial “Bold and Necessary,” The Globe and Mail, April 10, 1970.

⁵¹ The full text of the Canadian declaration is reprinted in (1970) 9 Int’l Legal Materials 598. Note that this reservation does not apply to the extension of the breadth of the territorial sea.

⁵² Ibid., at 600.

⁵³ Ibid.

⁵⁴ Can. H.C. Deb., Vol. I, October 24, 1969, at 38–9.

⁵⁵ Supra, note 52, at 600–04.

⁵⁶ “Canada Leads Fight Against Pollution,” Statements and Speeches, No. 70/3, at 2 (15 April 1970). Emphasis added.

⁵⁷ Ibid., at 3.

⁵⁸ Dept. of State Press Release No. 121 (April 15, 1970), reprinted in (1970) 9 Int’l Legal Materials 605.

⁵⁹ Sharp, Mitchell, “Preserving Canada’s Arctic Environment,” Statements and Speeches, No. 70/5, April 16, 1970.Google Scholar

⁶⁰ President Nixon felt compelled to intervene, in a telephone conversation with Prime Minister Trudeau, to express his concern about Canadian policies. This conversation was reported to be short — five minutes — and courteous; see “Ottawa firm on Arctic bill, Sharp says,” The Globe and Mail, April 16, 1970 at 1. However, unofficial sources have indicated that the conversation was acrimonious, see The Globe and Mail, August 25, 1973, at 7. Indeed, Canadian-American relationships were at a very low ebb, and there was fear by many M.P.’s that the American note contained threats of retaliation. This was categorically denied by Mr. Sharp. His request, however, to the U.S. Secretary of State, William Rogers, to make the full text of the note public was refused.

⁶¹ A summary of the Canadian note is reproduced in Can. H.C. Deb., April 17, 1970, Appendix, at 6027; also reprinted in (1970) 9 Int’l Legal Materials 607. The Canadian reply was cautious in responding to the U.S. suggestion for an international conference. More information was asked about the scope and application of the rules to be established, “since the Canadian Government obviously cannot participate in any international conference called for the purpose of discussing questions falling wholly within Canadian domestic jurisdiction.” See “State aim of Arctic talks, U.S. is asked,” The Globe and Mail, May 13, 1970, at 8.

⁶² This latter remark no doubt was referring to the Truman Proclamation on the continental shelf, the neutrality and air defence zones, the Cuban “quaran-tine,” and the atomic tests carried out by the U.S.A. and other states.

⁶³ Supra, note 61.

⁶⁴ It is on this issue that the Canadian position has been most severely criticized. It was called “hypocrisy” by Mr. Lewis, the New Democratic Party leader; Can. H.C. Deb., April 8, 1970, at 5625.

⁶⁵ See the remarks of Mr. Stanfield, the Leader of the Opposition: Can. H.C. Deb., April 16, 1970, at 5941–43.

⁶⁶ Ibid., 5953. This was in response to a question whether the territorial seas between Arctic islands would include distances of more than twenty-four miles.

⁶⁷ Ibid., April 17, 1970, at 6015.

⁶⁸ Ibid. A move to amend the Bill to provide for an express statement of sovereignty “in and over the water, ice and land areas of the Arctic regions between the degrees of long. 60 and long. 141” met with procedural difficulties and was withdrawn, ibid., June 3, 1970, at 7704–9 and June 4, 1970, at 7723–83.

⁶⁹ Bilder, Richard B., “The Canadian Arctic Waters Pollution Prevention Act: New Stresses on the Law of the Sea,” (1971) 69 Mich. L. Rev. 1, 6–7.CrossRefGoogle Scholar

⁷⁰ Green, L.C., “Canada and Arctic Sovereignty,” (1970) 48 Can. Bar Rev. 740,Google Scholar 775, (author’s emphasis omitted). This view is supported by Bilder, supra, note 69, at 7.

⁷¹ Beesley, J.A., “Rights and Responsibilities of Arctic Coastal States: The Canadian View,” (1971–72) 3 J. of Mar. L. & Com. 1, 2.Google Scholar

⁷² Ibid., at 3.

⁷³ It would have been a strong claim according to Henkin, Louis, “Arctic antipollution: does Canada make or break — international law?” (1971) 65 Am. J. Int’ L. 131, 134.CrossRefGoogle Scholar

⁷⁴ Supra, note 19.

⁷⁵ Supra, note 20, at 240.

⁷⁶ Cohen, Maxwell, “Polar Ice and Arctic Sovereignty,” (1958) 73 Saturday Night 35, 36.Google Scholar

⁷⁷ Cohen, Maxwell, “The Arctic and the National Interest,” supra, note 2, at 80.Google Scholar

⁷⁸ Reinhard, W.G., “International Law: Implications of the Opening of the Northwest Passage,” (1970) 74 Dick. L. Rev. 678, 688–9.Google Scholar A similar conclusion was reached by Dellapenna, J.W., “Canadian Claims in Arctic Waters,” (1972) 7 Land and Water L. Rev. 383, 420.Google Scholar

⁷⁹ [1951] I.C.J. Rep. 116.

⁸⁰ Supra, note 20, at 240.

⁸¹ D. Pharand, “The Waters of the Canadian Arctic Islands,” supra, note 4. An advance copy of Pharand’s paper was sent to the Department of External Affairs and may have been instrumental in the Canadian government not adopting the archipelagic theory.

⁸² Pharand, , The Law of the Sea of the Arctic, supra, note 4, at 93–8.Google Scholar

⁸³ Supra, note 79.

⁸⁴ Ibid., at 133. For a discussion of the “close link” criterion see Pharand, , The Law of the Sea of the Arctic, supra, note 4, at 95–6.Google Scholar

⁸⁵ There was a written assurance in the Canadian note sent to the United States in April 1970, supra, note 61, at 6028.

⁸⁶ Can. H.C. Deb., April 17, 1970, at 6015.

⁸⁷ Supra, note 79, at 130.

⁸⁸ Pharand, D., “Historic Waters in International Law, with Special Reference to the Arctic,” supra, note 4, at 14.Google Scholar

⁸⁹ Pharand, , The Law of the Sea of the Arctic, supra, note 4, at 134.Google Scholar

⁹⁰ Morin, supra, note 20, at 240–42.

⁹¹ Green, supra, note 70, at 760, (author’s emphasis omitted).

⁹² Supra, note 61, at 6028.

⁹³ [1949] I.C.J. Rep. 4, 28. The English translation of the authoritative French text of the judgment gives the impression that “use” is also an important consideration.

⁹⁴ See Pharand, D., “Innocent Passage in the Arctic,” supra, note 4, at 12–13,Google Scholar and The Law of the Sea of the Arctic, supra, note 4, at 14–15.

⁹⁵ Article 16(4) reads: “There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign state.”

⁹⁶ Both ProfessorPharand, , The Law of the Sea of the Arctic, supra, note 4, at 61,Google Scholar and Professor Morin, supra, note 20, at 219, come to the conclusion that the Northwest Passage is not an international strait, but state that this does not mean that a foreign ship does not have the right of innocent passage in the Northwest Passage nor that Canada does not recognize such right.

⁹⁷ Statement by Mr. Beesley, legal advisor, Department of External Affairs to the Standing Committee on External Affairs and National Defence, see Minutes of Proceedings and Evidence, No. 25, April 29, 1970.

⁹⁸ Head, Ivan, “Canadian Claims to Territorial Sovereignty in the Arctic Regions,” supra, note 4, at 202–03.Google Scholar

⁹⁹ Bilder, supra, note 69, at 22–3. This was also the proposal suggested to the government by the civil servants in the Department of Transport which was involved in the shipping aspects of the proposed legislation.

¹⁰⁰ Bilder, ibid.

¹⁰¹ Beesley, J.A., “Law of the Sea Conference — factors behind Canada’s stance,” (1972) 1 International Perspectives 28, 33.Google Scholar