Territorial Sovereignty in the Arctic
TERRITORIAL SOVEREIGNTY IN THE ARCTIC
January 1, 1950
Elmer Plischke, Ph.D.
Associate Professor of
Government and Politics
University of Maryland
College Park, Maryland
TERRITORIAL SOVEREIGNTY IN THE ARCTIC
The struggle for sovereign rights in the Arctic has been under
way for several centuries, and reached its climax in the nineteenth
century. Today there is little if any territory in the Arctic that
is legally "unpossessed," inasmuch as the various known islands and
archipelagoes have been officially claimed and, with one or two ex–
ceptions, existing pretensions generally are uncontested. In part
this is due to reluctance on the part of the United States, Denmark,
and Norway to press competing claims to such territories as Elles–
mere Island and Axel Heiberg
^
Land
^
and
to the north of Canada and to Franz
Josef Land and Wrangel Island. The most critical jurisdictional
dispute in recent years was occasioned by Norway's claim to Eastern
Greenland, which was amicably resolved by arbitration. Except for
Greenland, Iceland, and Spitsbergen, major Arctic islands are claimed
by the Soviet Union and the Dominion of Canada.
INTERNATIONAL LAW AND SOVEREIGN JURISDICTION
In order to understand the legal principles and problems con–
cerned with the acquisition and exercise of sovereign rights over
Arctic territory it is essential to understand the principles of inter–
national law governing sovereign jurisdiction over landed territory
(
terra firma
) in general. International law is dynamic and changes
with the times. Individual pretensions therefore must be weighed in
the light of the contemporary validity of the legal principles on which
they are founded.
The acquisition of territorial rights involves the following two
elements: the
animus
, that is to say, the
intention
of the state to
acquire and retain the territory and subject it to its jurisdiction;
and secondly, the
corpus
, or the
physical act
by which that intention
is manifested in fact. The
animus
is the mental act of sovereign
authority, determined by that branch of government which is constitu–
tionally competent to assume jurisdiction over territory. The
corpus
,
on the other hand, is performed by any agent properly acting in the
name of the state
.
^
(29, p.284).
^
Except in cases of conquest of cession, described below, the terri–
tory to be acquired must at the time of its acquisition be either un–
inhabited, or, if peopled by native tribes which are not politically
organized under any government possessing the marks of responsibility
under international law, it must have remained unappropriated by any
other state. For a territory to be
terra nullius
--that is, unpossessed
by a recognized state, and therefore appropriable--it must not be in–
habited by a political society accepted as an equal in the Family of
Nations. Areas which may be considered to constitute
terra nullius
include uninhabited lands, territories inhabited by individuals not
permanently united for political action, and derelict areas that have
been abandoned by former possessory states. All of these have been con–
cerned in resolving issues of Arctic sovereignty.
Legal Methods of Territorial Acquisition
In the twentieth century there are five clearly recognized modes
by which a state may acquire valid title to territory:
-
1.
Conquest or subjugation,
which means the incorporation of
-
foreign territory after its subjection by force, evidenced by some
overt act, such as a decree of annexation, indicating the intention to
appropriate the territory, and a demonstrated ability to maintain per–
manent possession. In the Arctic little territory has been acquired in
this fashion, except where sovereign control has been wrested from a
native group by an imperial power.
-
2.
Cession
, which consists of the formal transfer by treaty of
territory from one state to another, whether it be voluntary or forcible.
It may be achieved by a peace treaty signed under duress, by simple
cession, or by sale. Thus, the American purchase from Russia of the sub–
Arctic territory of Alaska was consummated by treaty (1867) and it is
possible that Denmark may some day sell Greenland to the United States.
Of a somewhat similar nature, though strictly speaking not a matter of
cession, territory may be acknowledged as belonging to a state by general
multilateral convention. In this fashion Norway acquired a clear title
to Spitsbergen and Bear Island in 1920.
-
3.
Prescription,
which is defined as the acquisition of rights
over territory by virtue of a protracted and uncontested exercise of
jurisdiction--or adverse holding--engendering the general conviction
that such possession is entirely in keeping with proper international
order. It commonly is agreed that long-continued and uninterrupted
possession purges a title which may originally have been in question.
Prescription is likely to be of increasing significance in matters of
polar jurisdiction today, especially for the Canadian and Soviet is–
lands of the Arctic
.
^
(38).
^
-
4.
Accretion
, which is of comparatively minor importance, particu–
-
larly in the Arctic, since it involves the increase or enlargement of
landed territory through the alluvial action of rivers or the ocean.
New promontories or islands created by alluvial deposits accrue auto–
matically to the littoral state.
-
5.
Effective occupation,
by which a state intentionally appropriates
terra nullius
through the practical exercise of jurisdictional authority
over it, as described more fully below. It is of fundamental importance
in determining Arctic sovereignty.
Discovery
,
symbolic appropriation
,
contiguity
, and
continuity
sometimes also are mentioned as according
valid jurisdiction
^
al
^
titles, and, whereas they enjoyed some validity in
the past, today they are subject to serious question.
Broadly speaking, the history of international law governing the
acquisition of
terra nullius
may be divided into three periods: (a)
The era prior to the sixteenth century, when papal grants constituted
the chief source of territorial pretentions, (b) The sixteenth and
seventeenth centuries, during which the validity of papal grants was
attacked, chiefly by those states that were too late to benefit thereby
or were unable to do so for religious reasons, and when discovery and
symbolic appropriation were propounded as the basis of jurisdictional
claims. (c) The period commencing with the beginning of the eighteenth
century, when the principle of effective occupation was developed by
international law writers and incorporated into general practice.
Papal Line of Demarcation
Papal edicts conveyed title to territory until the end of the
fifteenth century, when they reached a climax with the expansive grants
of the 1490's
.
^
(7, 41, and 54).
^
Following the discoveries of Columbus and his return
to Spain, in May, 1493, Pope Alexander VI awarded to Ferdinand and
Isabella exclusive control over discovered and undiscovered islands and
continental areas to the west of a line drawn 100 leagues west of the
Azores and the Cape Verde Islands, simultaneously warning other coun–
tries, under threat of excommunication, from entering the regions ex–
cept with permission of the monarchs of Spain.
When Portugal objected that this line was drawn too far to the
east, Spain agreed to the Treaty of Tordesillas on June 3, 1494, shift–
ing the line of demarcation 270 leagues farther west to 370 leagues
west of the Cape Verde Islands, which was confirmed by Pope Julius II
in 1506, twelve years after its consummation. The papal line of demar–
cation ostensibly extended from pole to pole, thereby dividing the globe
into two gigantic sectors.
Spain and Portugal do not currently claim title to Arctic or
Antarctic territory on the basis of papal grants. But the practice of
prescribing geographical areas bounded by astronomical or artificial
boundaries, within which is claimed all
terra nullius
, recently has
been revived and applied to the polar regions by a number of publicists.
This procedure currently is known as the sector principle, or, if the
presumption may be made to use a new term, as polar "sectorism."
Discovery
Opposition to the papal grants soon developed on a widespread scale,
led particularly by the English, French, and Dutch — the new maritime and
commercial states. In part their argument was that if Spain and Portugal
could disregard papal bulls--as they did when they negotiated the Treaty
of Tordesillas--other states had even more reason to ignore them. The
states which did not benefit under the papal grants introduced the counter–
claim of discovery as giving a more substantial title to new territory. It
seems quite logical that discovery came to be regarded as a more tangible
jurisdictional right in an era when half a dozen of the more powerful Euro–
pean states were competing to the point of war for the lands of the New
World and the East.
Discovery therefore became the basis of title to
terra nullius
in the
sixteenth century
.
^
(6, 41, and 42).
^
With the discovery of the immense American continent, the
nations of Europe were eager to appropriate as much territory as they could,
and, in order to avoid conflicting settlements and consequent war with one
another, it was necessary to establish a recognized principle of law by which
the rights of acquisition should be regulated as between themselves. This
principle provided that discovery gave jurisdictional title to the government
under whose authority it was made, was effective against all other European
governments, and might be consummated by actual possession.
There are many illustrations evidencing reliance upon discovery as the
basis of sovereign rights. The British Government relied upon it to justify
its claims to Virgi
[:
]
a, New England, and Canada. France and the Netherlands
also claimed portions of North American territory on the basis of discovery,
while Spain and Portugal asserted pretensions to the southern part of North
America, Central America and
^
^
the Caribbean, and South America
.
^
(44, pp.113 ff.).
^
However, as
claims conflicted in interior areas, other legal tenets had to be found, lead–
ing to the development of the principle of effective occupation.
Since the eighteenth century when state practice and international law
treatises commenced to recognize effective occupation as the most
^
^
valid title
to
terra nullius
, discovery was relegated to the background. To what extent
discovery currently conveys sovereign rights is not definitively settled in
international law, but it generally is agreed that it does not in and of it–
self afford a genuine title. At most, it is
inchoate
, the discovering state
merely acquiring the right to occupy effectively the discovered territory,
provided this is done within a reasonable time, and that in the interim other
states are conversely barred from occupying such territory
.
^
(6, p.67; 29, p. 137; 45, p. 48).
^
Symbolic Appropriation
As a matter of fact, it appears that even in the days of its ascendency
discovery often was accompanied by an overt act of appropriation in order to
furnish proof of jurisdiction. At any rate, it is certain that in territorial
conflicts, states tended to fortify titles to discovered lands by asserting
that they had "taken possession" of them
.
^
(11).
^
A real or effective possession was not demanded at the outset; a ficti–
tious or formal act of appropriation was considered to be sufficient. Claims
thus were founded upon seemingly trivial and sometimes isolated acts, such as
reading a proclamation of appropriation, reciting the explorer's letters patent
or commission, setting up a pillar or erecting a cross, sometimes bearing the
royal coat of arms or a marker with an inscription attesting to the appropria–
tion, raising a national standard or marching ashore with flag unfurled,
celebrating a religious service, performing the truf and twig ceremony (the
presentation to a representative of the sovereign of a clod of earth and a
twig to indicate acceptance of jurisdiction), and recording in a signed docu–
ment the ceremony performed
.
^
(20).
^
States varied the procedure, but one or another of these ceremonies was
practiced in most cases. For example, James Poole erected a cross with an
inscription on Bear Island for Great Britain in 1610, and much the same procedure
was followed by Captain William Baffin in Spitsbergen in 1613. William
Barents set up a post bearing the Dutch arms
^
in the
^
^
same archipelago
^
in 1596, Captain John
Cunningham utilized the turf and twig ceremony on Greenland in 1605,
appropriating it for Denmark, Russian practice included such acts as the
levying of tribute in Siberia, the erection of a cross and the building
of huts by Ataloff on Kamchatka in 1697, the leaving of trinkets and
coins at Kayes Island by Vitus Bering in 1743, the exaction of tribute
in Alaska by Bering the same year, and the buriel of copper plates and
the erection of crosses by Ismaelof and Betsharoff at Kodiak Island in
1788. Additional illustrations are referred to below.
Effective Occupation to 1884
The principle of effective occupation began to assert itself with
considerable emphasis in the literature of the eighteenth century
.
^
(11, 40).
^
Concomitantly it was denied that discovery and symbolic appropriation
continued to prove rights of jurisdiction. It was necessary for a state
to take the territory into effective and real possession in order to estop
other states from laying claim to it. Virtually all authors came to require
an effective act of appropriation to render jurisdictional title complete
.
^
(45, pp. 16–17).
^
.
But states did not universally adopt this principle in actual prac–
tice until somewhat later, and even then their usage was marked by vacilla–
tion. By the early nineteenth century, however, they began enforcing the
principle as a matter of recognized jurisprudence in their mutual relations,
and it was more and more frequently applied as the century advanced.
North America.
The Nootka Sound controversy of the late eighteenth
century, involving jurisdictional pretensions over the Pacific coast of
North America, resulted in one of the first major capitulations to the
principle in this hemisphere. As a consequence, imperial Spain, still
struggling to maintain its monopolistic control over the Pacific, grounded
on papal bull, finally was obliged to admit other states to the area, pro–
vided that the principle of effectiveness was strictly observed.
Subsequently, it also was involved in the dispute of the United States
and Spain over the boundaries between Louisiana and Texas, in the conflict
with Russia concerning her wholesale pretensions to the northwest coast of
North America, and in the Oregon question. In the Louisiana issue both
Spain and the United States sought desperately to prove the prior establish–
ment of effective occupation. Rejecting the Russian decree of September,
1821, laying exclusive claim to the Bering Sea and the Pacific area of
North America down to 45° 50′ N. latitude, both the United States and
Great Britain insisted upon effective occupation. Ultimately Russia
acquiesced, as evidenced by the limitations she accepted by treaty with the
United States (1824). During the Oregon dispute, the United States and
Great Britain agreed that discovery was insufficient to convey full title
to the territory. Both approved the principle of effectiveness, and the
dispute consequently centered about the priority and degree of occupation
effected.
Latin America
. Effective occupation also was resorted to in Latin
America territorial questions. When the United States requested Peru to
define the status of the Lobos Islands in 1852, for example, the Peruvian
Government convincingly argued that its rights rested on substantial and
unequivocal acts of jurisdiction and possession exercised from time imme–
morial, which satisfied the United States Government completely. Navassa
Island, off the southeast coast of Haiti, was explored by an American in
1857, guano was taken, and thereafter, despite Haitian contestation, it
was claimed to come under United States jurisdiction on the grounds that
when possession was taken the island was entirely unoccupied and unused
by the Haitians.
One of the most protracted territorial disputes in Latin America
concerns the Falkland Islands. It commenced early in the nineteenth cen–
tury. Although Great Britain has been in actual possession of the archi–
pelago for over a century, Argentina still challenges the validity of
British sovereignty, and both countries base conflicting Antarctic sectoral
claims on the islands.
Africa
. In the case of Baluma Island, off the mouth of the Rio Grande
River on the west coast of Africa, Portugal and Britain submitted the ques–
tion of title to arbitration by the President of the United States. The
award prepared by Mr. J. C. Bancroft Davis, Assistant Secretary of State,
in 1870 accorded the island to Great Britain on the grounds of real pos–
session, settlement, and actual use. In the dispute between Britain and
Portugal concerning Delagoa Bay in 1875, the president of France, as arbiter,
supported the Portuguese claim for a variety of reasons, including the ex–
ercise of possessory rights for three centuries, and the temporary interrup–
tion of such occupation was held to be insufficient to negate a title in
existence for so long.
The Pacific
. Preliminary rules of occupation as understood in the
Roman law were laid down as the criteria for determining jurisdictional
rights in the dispute between Spain and Portugal over the Molucca Islands
in the early sixteenth century. Three centuries later, Britain and Germany
recognized Spain's jurisdiction over such parts of the Sulu archipelago as
were effectively occupied, but refused to do so for the remainder.
Berlin Conference
,
1884–1885
Such was the status of effective occupation when the Berlin
Conference convened to deal with African territorial affairs, to which
all of the states of Europe (except Switzerland) and the United States
were invited. In Article 35 of the General Act of Berlin, signatory
powers recognized the obligation to assure, in African coastal territories
occupied by them, the existence of an authority sufficient to cause acquired
rights to be respected. Excepting the United States, which had no imperialist
interests in Africa, all signatory states ratified the Act in 1886. Effec–
tive occupation therefore became binding international law for African ter–
ritory.
The principle was renewed in somewhat broader scope for a number of
states in 1919. Article 10 of the Convention Revising the General Act of
Berlin, agreed to at St. Germain-en-Laye, provided that the signatory powers
recognize the legal obligation to maintain authority and police forces suf–
ficient to ensure protection of persons and property and, if necessary, free–
dom of trade and transit. This agreement was ratified by Belgium, the British
Empire, France, Italy, Japan, Portugal, and the United States, reaffirming the
fundamental principle of effective occupation.
Effective Occupation Since 1885
Since the Berlin Conference the principle of effectiveness has
universally been relied upon. Many illustrations may be cited, such as
the bitter British Guiana-Venezuela boundary affair which lasted for some
years and even threatened to precipitate war. The arbitral award in this
dispute, although not emphasizing the reasons upon which it was based, drew
the compromise boundary line in such a way as to give each party the
territory in which it was able to prove the more effective control.
The award of 1911 resolving the Anglo-German conflict over Walfisch
Bay in southwest Africa was based on the principle of effective oc–
cupation, asserting that the exercise of police jurisdiction and the
granting of pardons evidences such occupation.
Palmas and Clipperton Islands
. The United States and the Nether–
lands contested jurisdiction over Palmas Island, lying between the
Philippines and the Dutch East Indies. The award of the Hague Tribunal
(1928) recognized Dutch hegemony founded on the continued occupation
and exercise of governmental jurisdiction for some time as being of
greater legal significance than the inherited rights of the United States
grounded on discovery and contiguity.
In the Clipperton Island arbitration between Mexico and France,
King Victor Emmanual of Italy (1931) awarded the island to France by
virtue of its appropriation and effective occupation, and rejected
Mexico's argument that the general conviction that the island belonged
to her constituted effective occupation.
Eastern Greenland
. The dispute between Norway and Denmark over
Eastern Greenland involved some of the aspects of the problem that arise
to-be-faced
in the Arctic, and it serves as one of the landmarks in decid–
ing the legal principles governing the acquisition of polar territory
.
^
(28, 37).
^
The real issue was whether Denmark actually enjoyed
complete
possession
of the
^
entire
^
island, including the eastern part between Carlsberg Fiord on the
south and Bessel Fiord on the north, lying between the sea and the inland
ice cap.
Denmark asserted jurisdiction on the grounds that she enjoyed pos–
session for an extended period of time without contestation until Norway
propounded her claim, and, secondly, that Norway recognized Danish rights
by treaty. Norway replied that in fact the Danish Government did not ex–
ercise jurisdiction over the portion of the island annexed and occupied
by Norway in 1931. The Permanent Court of International Justice held that
display of authority — the basis of the Danish claim — involves two elements,
each of which must be shown to exist, namely, the intention to act as
sovereign, and some actual exercise or display of governmental authority.
The court took a very liberal view with respect to the latter, holding that
complete policing or settlement was unnecessary and that merely the establish–
ment of administration for the area and the enforcement of regulations was
adequate to validate the title. The court therefore decided in favor of
Denmark.
Conclusions
. As illustrated by state practice particularly since the
Berlin Act of 1885, international law requires the establishment of
effective occupation for a genuine acquisition of
terra nullius
. With very
few exceptions, state practice adheres to the principle, and a number of
important arbitral decisions have liberalized its interpretation considerably.
As a consequence, recent disputes have been less concerned with the determina–
tion of the legal principle to be applied than with an interpretation of the
degree of effectiveness required in each particular case.
Prescription
The validity of prescriptive title to territory has universally
been recognized by international publicists and in international practice.
Prescription on the part of one state presupposes the existence, at least
in theory, of an earlier title held by another. The new title is acquired
on the ground of a presumed abandonment of the territory by the original
owner.
One of the most uncertain features of the principle is the length of
time required to render title effective. But this is understandable, be–
cause it varies with circumstances. No general rule can be laid down, but
when the Anglo-Venezuelan boundary dispute in Guiana was submitted to arbi–
tration in 1897, it was agreed that adverse holding for fifty years should
consummate a good title. The same period was proposed by the Russian Govern–
ment in the controversy over northwest North America in the 1820's.
Contiguity and Continuity
On some occasions the geographic position of territory is alleged to
create rights of sovereignty
.
^
(56)
^
Such geographical relationship is variously
known as territorial proximity or propinquity, of which there are two types,
namely, contiguity and continuity. They are differentiated in that contiguity
refers to territories separated by water whereas continuity is concerned with
continuous territory not separated by water
.
^
(56, p. 520).
^
Contiguity
. The preponderant number of international law publicists
reject the principle of contiguity as according sovereign rights, except
for either the minor islands of archipelagoes in which the main islands are
effectively occupied or islands located within the confines of territorial
waters
.
^
(29, pp.228–229; 33, p. 244; 35, pp. 77–78).
^
Contiguity is said to create merely an inchoate or presumptive title,
and then only for comparatively small or moderate areas. State practice also
recognizes that islands lying within territorial waters are appropriable,
but the position of governments is more difficult to determine with respect
to islands located close to the mainland but beyond the marginal belt.
The United States Government has consistently denied the validity of
contiguity, as it did in the controversies concerning the Lobos Islands,
Aves and Navassa Islands, and the Falkland Islands, and the same opinion
was acknowledged in the Palmas Island award.
Continuity
. The principle of continuity — or the hinterland doctrine —
which has reference to the extension of possessions landward from a
tract effectively occupied, has had a somewhat different development. In
the days of the great explorations it was common for charters to grant
jurisdiction from "sea to sea." When American diplomats were discussing
the limits of the Louisiana Territory in 1805, they supported the principle
by arguing that the hinterland embraced interior count
^
r
^
y drained by all
rivers and their tributaries to their very sources. The principle also was
of importance in the Oregon controversy, in the scramble for African territory,
and in the Venezuelan boundary dispute.
Neither contiguity nor continuity, in and of itself, affords a perfect
right to adjacent territory. Contiguity is definitely rejected, and, at best,
continuity may create a presumptive title which, within a reasonable time,
must be followed by effective occupation. Whereas it was incorporated into a
number of African territorial treaties, it nevertheless was superseded by
effective occupation in arguing a case before an arbitral body and in the
awards of the arbiters. A contemporary version of these principles has made
its appearance in connection with the polar regions, as described in the fol–
lowing section.
POLAR SECTOR PRINCIPLE
In recent decades a new legal concept has been developed by a number
of writers for the solution, in advance, of problems of polar jurisdiction.
This generally is referred to as the sector principle. It has both geographic
and juridical implications. Geographically, a sector means a triangular
slice of polar territory, with its apex at the pole, bounded by two meridians
of longitude, and usually having a parallel of latitude or a territorial coast–
line as its base. Arctic sectors converge at the North Pole whereas Antarctic
sectors meet at the South Pole. However, in some cases a longitudinal line
must deviate to circumvent foreign territory; both Greenland and Spitsbergen
necessitate such deviations.
The sectors differ in the two polar regions for geographic reasons.
In the Arctic, where there are great sub-polar land masses, the base of the
sector supposedly is formed by the northern boundary of the subjacent con–
tinental territory abutting upon the Arctic. In the Antarctic, on the other
hand, where there are no prominent land masses (the southern coasts of Africa,
Australia, and South America being neither large nor subjacent to the polar
area), more or less arbitrary parallels of latitude are selected as the
northern bases of the sectors, while the sides are extended to the widest
^
expanse
^
possible under existing claims of discovery, exploration, and symbolical
annexation. The bases of Antarctic sectors therefore bear no relationship
to the width of the possessions of the claimant state outside the Antarctic
Circle.
Delineation of Arctic Sectors
In the past, six Arctic sectors have been demarcated, one assigned
respectively to each of the following: Norway (based on Spitsbergen and
Jan Mayen Island), Finland, the Soviet Union, the United States (based on
Alaska), Canada, and Denmark (based on Greenland and Iceland). Since the
poleward extension of the prewar Finnish longitudinal boundaries was in–
terrupted by the Spitsbergen Archipelago, some sectorists eliminated Finland
from the list. Today, in any case, she would be excluded by virtue of her
cession of the Arctic coastal Petsamo District to the Soviet Union in the
Peace Treaty of 1947. Since the establishment of the complete independence
of Iceland, it
appears
^
might be urged
^
that a logical representation of polar sectorism in
the Arctic would require a separate sector for her, so that six Arctic
sectoral states would remain.
As a juridical theory, the sector principle originally was propounded
on February 20, 1907, by Canadian Senator P. Poirier, who allocated sectors
to Norway, Russia, the United States, and Canada. Although the idea did not
originate with him, David Hunter Miller, an American statesman, apparently was
one of the first to actually slice the Arctic pie into definite sectors
.
^
(32, 33).
^
He
delineated three of them--the Russian, lying between an "undefined" line in
the neighborhood of 30° or 40° E. longitude and 169° W. longitude; an American,
between 169° and 141° W. longitude; and a Canadian, between 141° and 60° W.
longitude. The remainder of the Arctic, between 60° W. and 40° E. longitude
would, so far as the theory goes, be unassigned, but it seems to contain no
land north of Spitsbergen and Greenland.
Subsequently two publicists presented somewhat more detailed theories
concerning the principle and sought to justify them with legal, historical,
and pragmatic arguments. These are Leonid Breitfuss and Vladimir Leont'evich
Lakhtine.
Breitfuss divided the Arctic into five sectors
.
^
(2, 3):
^
-
1. Joint Norwegian-Finish: from 10° W. longitude to 32°
4′ 35″ E. (42° in extent).
-
2. Soviet: from 32° 4′ 35″ E. longitude to 168° 49′ 30″
W. (158° in extent).
-
3. Alaskan: from 168° 49′ 30″ W. longitude to 141° W.
(29° in extent).
-
4. Canadian: from 141° W. longitude to 60° W. (81° in
extent).
-
5. Greenland (Danish): from 60° W. longitude to 10° W.
(50° in extent).
Lakhtine, on the other hand, established six sectors, giving Nor–
way and Finland each a separate slice
.
^
(24, 25).
^
His divisions included:
-
1. Norwegian: between 10° E. longitude and a line fixed by
the Paris Convention of 1920.
-
2. Finnish: 31° E. longitude to 32° 4′ 35″ E. longitude
(which ceases at Spitsbergen).
-
3. Soviet: 32° 4′ 35″ E. longitude (which curves to about
35° E. longitude in the vicinity of Spitsbergen) to
168° 49′ 32″ W. longitude.
-
4. American: 168° 49′ 32″ W. longitude to 141° W.
-
5. Canadian: 141° W. longitude to 60° W. (which curves
along the western coast of Greenland).
-
6. Danish: 60° W. longitude to 10° E. longitude.
Lakhtine briefly listed the known territories that lie within each
of these sectors
.
^
(25, pp. 705–707).
^
Thus, the Norwegian portion includes Spitsbergen, Bear
Island, and Jan Mayen Island, whereas that of Finland contains no discovered
territory. The Soviet sector embraces the entire group of islands and
archipelagoes north of the Soviet mainland. No islands of importance
are to be found in the Alaskan sector. The Canadian segment includes
vast territories comprised of the archipelago lying to the north of the
Dominion, and that of Denmark is comprised of Iceland and the entire
island of Greenland.
Since 1928 a number of additional writers have supported the prin–
ciple. Ernst Sorge, a German geographer, accepts the five-fold division
of Breitfuss
.
^
(48).
^
He distinguishes a Norwegian sector (embracing Spitsbergen),
a Soviet sector (including all islands within the entire area between 32°
4′ 35″ E. longitude and 168° 49′ 30″ W. longitude), an American sector
(Alaska, for which he specifies no Arctic lands), a Canadian sector (the
Franklin Archipelago), and a Danish sector (Greenland). Like Breitfuss,
he omits Finland from the roster.
Professor Bruce Hopper, who has written extensively on the work of
the Soviets in the Arctic, cuts the Arctic into six slices
.
^
(12).
^
He refrains
from defining exact longitudinal delineations but gives the sizes of these
sectors: Norwegian--21° Finnish--2° Soviet--159° United States--28°
Canadian--81° Danish--69°. Comparing this division with that of Breitfuss,
it is noted that there is agreement on the size of only one sector — the
Canadian.
Arctic sectors also are identified by latitudinal sizes in the
publications of the Canadian writer, D. M. Le Bourdais
.
^
(26, p.9).
^
He omits Finland,
but acknowledges a Norwegian sector of 20° in width; a Soviet sector of
160° an[: d] American of 30° a Canadian of 80° and a Danish of 45°.
The prominent Norwegian jurist Gustav Smedal, in his excellent
study of polar jurisdiction, says that if the Arctic were to be divided
into sectors--the juridical validity of which he strongly denies--then
Norway, Finland, the Soviet Union, the United States, Canada, and Denmark
would be entitled to segments. But he does not attempt any specific
delimitation
.
^
(45).
^
A number of these publicists appear to accept the principle without
attempting to justify its validity. It is interesting to note that, while
all of these exponents pretend to explain the same principle, each employs
his own subjective interpretation, and consequently they fail to agree on
the allocation of the sectoral lines and the number and size of the sectors.
As a matter of fact, there is very little agreement even among Soviet
authorities, except as far as the Canadian sector is concerned, which is
held to comprise the polar area between 60° and 141° W. longitude.
Legal Validity of Sector Principle
In and of themselves, the opinions of publicists do not create law,
however. Its existence must be validated by international usage and
treaties. No general conventions have been agreed to by the interested
powers acknowledging polar sectorism. Nor is it commonly accepted in inter–
national practice in the Arctic (although it is more widely adhered to in
the Antarctic). The Soviet Union is the only subjacent state that actually
incorporated it into its municipal or national law. Others either have
clearly rejected it, or, as in the case of Canada, where a number of public
officials openly approved the principle, the government has neither manifestly
denied nor condoned it. Individual state action is described in greater
detail below.
SOVEREIGNTY OVER ARCTIC TERRITORY
Having summarized the basic legal principles governing the exercise
of sovereign jurisdiction in general, it is necessary to apply them specifi–
cally to Arctic territory and to analyse state practice in this area. Norway,
the Soviet Union, the United States, the Dominion of Canada, and Denmark cur–
rently are the states of chief concern. Although the peculiarities of Arctic
island territory may suggest a new legal principle, such as the sector theory,
it will be noted that in an actual conflict of claims, effective occupation
is resorted to whenever possible and that, in reality, it is the final test
of sovereign authority.
Norway
The Norwegian Government has not accepted the sector principle for
the Arctic. As a matter of fact, it rather has categorically denied its
validity. As noted above, those writers who delineate a Norwegian sector
differ widely in their specific interpretations. Gustav Smedal, a Norwegian
upholding the interests of his homeland, flatly repudiates the principle and
denies that Norway ever claimed a sector in the Arctic
.
^
(45, p. 73).
^
The present Arctic possessions of Norway include Spitsbergen, together
with Bear Island, and Jan Mayen Island. From the legal point of view these
islands play an important role in two respects. In the first place, it is
argued that Norway claimed and obtained jurisdiction over them by virtue of
the sector principle. Secondly, it is contended that the Norwegian sector
is founded on the i
^
s
^
la
^
n
^
ds. Though publicist
^
s
^
may debate these premises, the
facts disp
or
^
ro
^
ve their validity beyond a doubt
Spitsbergen
. The history of Spitsbergen may readily be divided into
three periods. In the first, lasting until 1871, Denmark-Norway established
preponderant interests in the archipelago; in the second, continuing until
1920, the islands were declared to be
terra nullius
by the interested powers;
and, in the third, Norway actually acquired complete sovereignty under the
multilateral Spitsbergen Treaty of 1920.
There has been some dispute over the discovery of the archipelago,
involving a Norwegian claim that Vikings discovered "Svalbard" in 1194, a
Russian visit to the islands prior to 1435, "rediscovery" of the islands by
William Barents, chief pilot of a Dutch expedition in 1596 accompanied by
symbolic annexation, and annexation by symbolic act a few years later by a
British expedition sailing under a charter granted the Muscovy Company. Early
interest in the islands was due to their location in choice whaling grounds.
By the mid-seventeenth century the question of jurisdiction declined
in importance owing to the departure of the whales. Despite the competing
claims of Britain, the Netherlands, and Russia, it appears that Denmark–
Norway possessed the strongest pretension. This was confirmed by a letter
King Christian addressed to various powers in 1616 in which he affirmed his
sovereignty over the archipelago, and a number of agreements conceding this
were signed with the interested states, except Russia. Throug
^
h
^
out this period
the latter asserted no claim to the islands, and, despite an increasing interest
in them during the eighteenth century, it was not until 1871 that the Russian
Government alleged historical grounds for possession.
For almost three-fourths of the nineteenth century Spitsbergen played
a minor part in international affairs, when about 1870 attention of the world
was directed to the mineral wealth of the islands. There was no satisfactory
governmental administration providing for the granting of land titles and
mining rights and the judicial settlement of disputes. But it also became
evident that no interested power would permit any other to take undisputed
possession.
In 1872 Norway-Sweden and Russia agreed that they would regard Spits–
bergen as
terra nullius
, allowing free right to establish scientific and
industrial enterprise. Other states did not contest this arrangement. Since
Denmark voiced no objection at the time, presumably she surrendered her
original claims through dereliction.
Norway then began to sponsor a series of international conferences
concerning the matter of jurisdiction in the archipelago. After several
abortive attempts, she met with Sweden and Russia in a secret conference at
Christiania in 1910, where a
proc
^
è
^
s verbal
was negotiated, outlining the inter–
national status of the islands and providing for a tripartite scheme of govern–
ment. A more detailed protocol was agreed to by the three states two years
later. Finally, in 1914 Norway convoked a general conference, which rapidly
adjourned, however, to permit participating states to examine the plan for–
mulated at the preliminary tripartite conferences. World War I intervened,
accentuating interest in the archipelago for both its strategic position and
its mineral resources.
When the Paris Peace Conference met, therefore, the Norwegian Govern–
ment requested it to consider the Spitsbergen question. The Supreme Council
appointed a special Spitsbergen Commission, which decided to place the archi–
pelago under Norwegian jurisdiction. This was embodied in the Spitsbergen
Treaty signed early in 1920. It received almost universal acceptance, with
the exception of the Soviet Union which was not represented at the conference,
but Moscow acceded in 1924. Upon the acquisition of Spitsbergen, the Norwegian
Government immediately rendered its title effective by a series of public
proclamations and the establishment of administrative services.
Bear Island
. Bear Island — located between North Cape (Norway) and
South Cape (Spitsbergen) — also was acquired by Norway under the 1920 Spits–
bergen Treaty. Despite differences in matters of detail, the history of this
island tends to parallel that of Spitsbergen. Without a doubt it constituted
terra nullius
at the time of its acquisition.
Aside from Viking-Norwegian discovery in the late tenth century, "re–
discovery" by William Barents (Dutch) in 1596, a formal claim by the English
Muscovy Company in 1609, hoisting of the Russian flag in the late nineteenth
century, and active German interest at the end of the nineteenth century,
Norway and Russia were the chief contenders for the island by the time of the
Paris Peace Conference. But neither possessed claims sufficient to justify
possession. Although the matter was not especially pressing in 1920, the
island also was placed under Norwegian sovereignty.
Jan Mayen Island
. Norway's acquisition of Jan Mayen Island provides
a somewhat different and far less complicated story
.
^
(36).
^
The island probably was
known to the Norwegians at an early date, since there is evidence that Norse
hunters frequented its waters. When Norway declined as a seafaring nation
in the fourteenth and fifteenth centuries, the island was forgotten, and she
lost the claims she then may have possessed.
Jan Mayen was "rediscovered" in the seventeenth century. It is dif–
ficult to assign credit because a number of independent discoveries probably
were made at about the same time, each guarded as a secret to prevent rival
whalers from using the island's waters. Henry Hudson formerly was regarded
as having first "rediscovered" the island in 1607, but today it is believed
that the true discovery was that of the Dutch voyager Jan Jacobsz
May in July, 1614. The first authenticated English visit was made
in 1615. Other claims lack substantiating evidence. With the de–
cline of whaling the island once more was abandoned, so that only
an occasional traveler visited the island after 1642. Although
early in the seventeenth century the island presumably was the un–
disputed possession of the Dutch, whose occupation lasted into the
following century, nevertheless rights created during this early
period were forfeited by dereliction.
A new phase of the jurisdictional development of the island
began with its occupation by a Norwegian subject in 1920 and the
erection of an official Norwegian wireless and meteorological sta–
tion the following year. On the basis of these and additional acts
of effective occupation for eight years without opposition, the
Norwegian Government formally annexed the island on May 8, 1929.
Appropriation apparently was made without objection. Valid title
therefore was created by effective occupation substantiated by uni–
versal acquiescence. Upon annexation the Norwegian Government imme–
diately proceeded to render its jurisdiction certain by applying its
civil and criminal law and judicial procedure to the island, and by
placing its administration under the Governor of Spitsbergen.
The Soviet Union
The Soviet Union has taken a stronger official position in support
of the sector theory for the Arctic than any other state, and its
action is the only instance of incorporating the principle into nation–
al legislation for the Arctic
.
^
(53).
^
Russian Pretentions, 1916
. The first step was taken on October 3,
1916, when the Russian Foreign Minister notified the allied and friendly
powers that the Russian Empire embraced the following Arctic territory
^
(25, p. 708; 32, p.53):
^
Vilkitski Island; Tsar Nicholas II Land (now Severnaia Zemlya);
Tsesarevicha Alekseya Island (now called Small Taimyr); Starokadomski
and Novopashennyi Islands; Henrietta, Jeanette, Bennett, Herald, and
Viedinenia Islands; the New Siberian Islands; Wrangel Island; and
others situated near the Asiatic coast of the Empire. The Russian
Government did not judge it necessary to include in this notifica–
tion Novaya Zemlya, Kolguev, Vaigatch and other smaller islands locat–
ed near the European coast of the Empire, because they were universally
recognized as Russian territory.
This decree embraced the known islands lying to the north of
continental Russia, with the glaring omission of Franz Josef Land.
There is no evidence to indicate that either Britain (or Canada),
the United States, or Norway made formal objection to the decree
when it was announced. The Soviet Government renewed this claim in
1923, and on November 4, 1924, a special memorandum was addressed to
the governments of several states, repeating the notification of 1916
and affirming that the Arctic islands mentioned were part of the
territory of the Soviet Union.
Soviet Sectoral Decree
. The definitive delineation of a Russian
Arctic sector, however, was made in 1926, when on April 15th, the
Presidium of the Central Executive Committee decreed
^
(53, p.320):
^
All discovered lands and islands, as well as
all those that may in the future be discovered,
which are not at the date of the publication of this
decree recognized by the Government of the U.S.S.R.
as the territory of a foreign Power, are declared to
be territories belonging to the U.S.S.R., within the
following limits:
In the Northern Arctic Ocean, from the northern
coast of the U.S.S.R. up to the North Pole, between
the meridian 32° 4′ 35″ east longitude from Greenwich,
passing along the eastern side of Vaida Bay through
the triangulation mark on Kekursk Cape, and meridian
168° 49′ 30″ west longitude from Greenwich, passing
through the middle of the strait which separates
Ratmanov and Kruzenstern Islands of the Diomede
group of islands in the Bering Straits.
The text of this decree was communicated to the interested
governments. No express official declarations of acquiescence were
made, but aside from the question of the validity of the sector
principle as legal dogma, there seems to be little opposition to the
Soviet pretension. The two territories which have occasioned the most
poignant discussion are Wrangel Island and Franz Josef Land.
Wrangel Island
. The development of the jurisdictional wrangel
over Wrangel Island is an interesting episode in Arctic history.
A Russian heard of the island in 1824, and several unsuccessful attempts
were made to find it, including the four-year explorations of Lieu–
tenant (later Baron) Wrangel. An Englishman, Captain Henry Kellett
of the
Herald
, first saw the island in 1849. In 1867 it was given
its name by Captain Thomas Long of the American whaling bark
Nile,
and in this same year much of the American whaling fleet operated
in the region and saw the island.
Another American, Captain Calvin L. Hooper of the
Corwin
, was
first to land on the island, in August, 1881, raising the American
flag, depositing a record of the visit in a cairn, and claiming the
island for the United States. A few weeks later Lieutenant Robert M.
Berry of the United States Navy made the second land
^
ing
^
, remained 19 days,
and explored much of the coastline. Britain and the United States
thus acquired the strongest, though still imperfect, claims to the
island. The first Russian visit was that of Captain Konstantin V.
Loman, of the
Vaigatch
, in 1911, which is poorly reported and fails
to prove Russian intention to acquire jurisdiction.
The initial attempt to establish claims founded on effective
occupation was made in 1914, when seventeen survivors of the wrecked
Karluk
, icebound flagship of the Canadian Arctic Expedition, succeeded
in landing on the island early in March and remained throughout the
summer. On July 1, three members of the party raised the Canadian
flag and claimed the island as a British possession. In attempting
further to perfect the Canadian title, the Arctic explorer Vilhjalmur
Stefansson organized the Arctic Exploration and Development Company
and sent a small expedition to the island, 1921–1923. Upon landing,
the party issued a proclamation declaring the island to belong to
Canada.
These occupational pretensions were not substantiated by the
Canadian Government, however, inducing Stefansson to sell his company
to an American, Carl Lomen, in 1924. A United States expedition
proceeded to the island to take possession, but because of unfavorable
ice conditions it failed to get through. Meanwhile the American
Government announced that temporarily no effort would be made to assert
United States jurisdiction in the Arctic.
Canadian and American defection paved the way for the assertion
of Soviet pretentions. In 1924 the
Krasny Octiabr
, a gunboat carry–
ing a company of infantry, managed to get through to the island,
raised the Soviet flag, and took formal possession without contesta–
tion by Britain, Canada, or the United States. Two years later Soviet
authorities adopted a policy of settlement and continuous occupation
for the island. Parties have been left on the island, wrieless sta–
tions erected, and the island is included in Soviet administrative and
aerial defense establishments. Despite the 1926 sectoral decree,
perhaps particularly for strategic reasons, the Soviet Government is
not relying upon sectorism for its title.
Franz Josef Land
. Franz Josef Land was discovered in 1873 by
an Austro-Hungarian expedition, in quest of the Northeast Passage by
sailing around the northern tip of Novaya Zemlya. But the Austro–
Hungarian Government pressed no claim to legal rights. Throughout
the next decades the islands were regarded as one of the preferred
jumping off points in the race to reach the North Pole. The most
significant pole-bound expeditions that used the archipelago were
the Jackson-Harmsworth Expedition, 1894–1897 (British), the Wellman
Expedition, 1898–1899 (American), the Duke of Abruzzi Expedition,
1899–1900 (Italian), and the two Ziegler Expeditions, 1901–1902 and
1903–1905 (American). None, as far as is known, however, gave rise
to jurisdictional pretensions to these islands.
From 1905 to the end of World War I, Franz Josef Land lost
much of its appeal, primarily because it was no longer considered
a suitable route to the Pole, which, in any case, had been reached
a few years before the outbreak of hostilities. During the war years,
no state appears to have sought possession on the basis of discovery,
exploration, or symbolic annexation. Even Russia, despite several
expeditions, seemed unconcerned over the status of the archipelago,
as evidenced by its omission from the 1916 decree.
By 1923 interest in the islands was reawakened, with the Soviet
Union and Norway assuming the leading roles, the latter ultimately
gaining the ascendency. Five Norwegian expeditions set out for the
islands between 1923 and 1931, three of which reached their goal.
During the 1920's the Soviet Union also inaugurated a new series of
expeditions and in 1929 that led by Professor Otto Y. Schmidt raised
the Soviet flag and erected a scientific station. Thereafter the
Soviet Union maintained continuous and effective occupation and con–
structed a number of weather and air stations, bases, and other faci–
lities. Furthermore, since 1931, it appears, no non-Soviet expedi–
tion has visited the islands. Whereas the pretensions of Soviet
Russia to Franz Josef Land were virtually non-existent prior to 1929,
in view of her actual occupation, she has since established a stronger
claim to the archipelago than any other state.
Effective Occupation
. Clearly evidencing Soviet reluctance to
rely upon polar sectorism to substantiate its title to Arctic terri–
tory is the variety of administrative measures undertaken in the
past quarter century
^
(13, 46, 47).
^
Briefly these include:
-
1.
Central Administrative Supervision
. Integrated direction
dates back several decades to the establishment of the All-Union
Arctic Institute (a scientific enterprise) and the Northern Sea
Route Administration (
Glavsevamorput
), to exploit the resources of
the northern sea route
.
^
(53, pp. 74 ff.)
^
-
2.
Colonization
. The principle of colonization is practiced
wherever it is feasible and desirable for the extraction of resources,
the erection and maintenance of meteorological and air stations, or
the pursuance of scientific investigation
^
(46)
^
-
3.
Discovery
,
Exploration
,
and Annexation
. The Soviet Government
is carrying out a wholesale, centrally controlled program of explora–
tion and annexation
.
^
(2, 3).
^
When new land is explored the Soviet flag is
raised and possession is formally taken. Meanwhile the Soviet
Government has sought to arouse popular enthusiasm for the Arctic,
-
emphasizing the concept of mastery over polar elements.
-
4.
Arctic Stations
. While information is incomplete, it goes
without saying that the Soviet Government is establishing whatever
scientific, weather, and air stations are feasible and necessary.
At the same time an Arctic air service is in operation, connecting
posts and providing communications and transport facilities
.
^
(2, 46).
^
-
5.
Administration
. Soviet polar islands have been brought
within the jurisdiction of various agencies of the Soviet Government
in an attempt to completely Sovietize the economy and political affairs
of the islands, and bring them under Soviet law and judicial procedure
[:
.
]
^
(53).
^
Thus, although asserting claims to territorial jurisdiction
founded on sectorism, in actual practice the Soviet Union is proceed–
ing to substantiate her claims with effective occupation wherever pos–
sible. Tacit acquiescence in her actions by other states at least
creates the presumption of the validity of her title, which is in the
process of being perfected by effective state administration.
United States
In 1867 the United States purchased Alaska from Russia for
$7,200,000. Article 1 of the treaty of sale defines the territory
ceded, prescribing a dividing line through Bering Strait which
"proceeds due north, without limitation, into the same Frozen Ocean...."
(original French provides: "
en ligne directe
,
sans limitation
,
vers
le Nord
,
jusque'a ce qu'elle se perde dans la mer Glaciale
....").
The question whether this treaty delineates an Arctic sector and
therefore proves United States support of the principle has been dis–
puted at length. A number of writers cite the treaty words as indicat–
ing beyond a doubt that the United States and Russia thereby fixed
indisputably their territorial rights in this area
^
(25, pp. 307–708; 53, pp. 331, 333).
^
Others, on the
other hand, favor interpreting the treaty as meaning that the demarca–
tion line extends only
up to
the Arctic; that, if extended to the pole,
at most it merely fixed the territory acquired from Russia in 1867
which could not have conveyed title to territory then unpossessed;
and that, in any event, the treaty could in no way obligate the United
States to admit its approval of the then unknown sector system
.
^
(15).
^
United States Interests in the Arctic
. Officially the United
States Government has not condoned the sector theory either in theory
or in practice, nor has it recognized any hypothetical Arctic sectoral
divisions claimed by another state. Occasionally, in direct viola–
tion of polar sectorism, American pretensions have controverted the
claims of other powers.
Although premature, late in the 1870's Congress considered a
proposal submitted by Senator Henry W. Howgate to support officially
an expedition to reach the North Pole, and to go about it by establish–
ing a base of operations at Lady Franklin Bay, on the northeastern tip
of Ellesmere Island, connecting with Robeson Channel. The recommenda–
tion was to establish there a "colony" to be supplied by the United
States Navy
.
^
(14).
^
Somewhat later an American polar expedition led by Lieutenant–
Commander George W. De Long of the United States Navy, on its return
southward after its vessel, the
Jeanette
, floundered, discovered
Jeanette, Henrietta, and Bennett Islands, landed on the last two,
and formally took possession of Bennett Island in July, 1881. These
islands lie to the north of Siberia, northeast of the New Siberian
Islands. The same year Captain C. L. Hooper, sailing in the cutter
Corwin
, took possession of Wrangel Island in the name of the United
States, as indicated above, to which Russia raised no objection.
In 1909, the Committee on Foreign Relations recommended that the
Guano Act of 1856 be amended so that whenever an American citizen
discovers a deposit not only of guano, but also of phosphates, coal,
or other minerals, on any island or portion of an island not within
the lawful jurisdiction of any other government, and takes possession
and occupies the island, the United States Government could, at the
discretion of the President, consider it as appertaining to the United
States. The movement was engendered by growing interest in Spitsber–
gen coal. The proposal was passed by the Senate in 1910, but was
again referred to committee where it ultimately died. Had it become
law, perhaps many claims to Arctic lands would have been filed in the
name of the United States.
In the 1920's, Soviet fears were aroused by a number of American
activities beyond the Soviet sectoral line. For example, in 1920
a United States Coast and Geodetic Survey magnetic observation station
was erected in the Bay of Emma, on the Chukot (or Chukotski) Penin–
sula, west of St. Lawrence Island in Bering Strait, and on several
occasions was visited by the American cruiser
Bear
. The Soviet Govern–
ment objected strenuously to this action in 1924, to which no reply
appears to have been made. On another occasion, the crew of the
American gasoline schooner
Herman
under Captain Louis Lane hoisted
the American flag on Herald Island, claiming it for the United States.
But, significantly, the United States Government failed either to
comment upon or to substantiate the act.
As preparations were being made for the MacMillan Expedition
to visit the Arctic "White Spot" north of Alaska in 1925, in con–
ferring with President Calvin Coolidge, MacMillan urged the American
Government to appropriate territory near the North Pole. According to
the press, the Canadian Government consequently informed Washington
that any territory which might be discovered to the north of the
Dominion would be claimed by Canada. MacMillan also asked the De–
partment of State whether Canada possessed a valid title to Axel
Heiberg Land and if a permit therefore should be obtained from the
Dominion for the landings expected to be made, and, secondly, whether
the hypothetical land expected to be discovered should be claimed as
American territory. It appears that no communication was forwarded
to the Canadian Government requesting permission for our Navy planes
to fly over territory claimed by the Dominion. With respect to the
second question, the State Department replied that our government was
not then disposed to pass upon the matter of jurisdiction of newly
discovered territory.
In practice, the United States apparently recognizes the juris–
diction of Canada over known territory to the north of her mainland.
Our main consideration in this area in the post-war period is strate–
gic, and that is being resolved by bilateral agreements establishing
the Canadian-American Joint Board of Defense and providing for the
mutual use of polar territory for
^
the establishment of
^
bases
purposes
.
For some time the United States also has manifested an active
interest in the disposition of Greenland. After the purchase of
Alaska, Secretary William H. Seward was concerned over the matter
because at the time the United States was believed to possess inchoate
rights. In 1910 the American Minister to Denmark, on the inducement
of Danish friends, recommended to the Department of State that in
return for Greenland and the Danish West Indies, the United States
cede the Island of Mindanao (Philippines) to Denmark, which the latter
could then cede to Germany in return for Northern Schleswig. Other
complicated proposals for the acquisition of Greenland were made from
time to time. The explorer Robert E. Peary, however, simply urged
the outright purchase of the island by the United States. But in
that very year the American Government recognized the Danish exten–
sion of its political and economic interests to the whole of the island.
For strategic reasons, American interest in Greenland is today
as acute as ever. During the war years the United States occupied
both Greenland and Iceland in order to forestall German control of
the North Atlantic, in each case with specific consent based on an
understanding that American authority would be withdrawn at the close
of the war. Early in 1947, it was rumored that Denmark contemplated
selling the island to the United States, but these rumors were offi–
cially denied. Because of the heavy administrative expenses for Den–
mark and the island's important strategic location for the United
States, the potential sale of the island to the United States remains
a distinct possibility.
Canada
Canada claims title to the entire archipelago lying to the north
of her mainland. This includes Axel Heiberg, Baffin, Banks, Bathurst,
Borden, Byam Martin, Cornwallis, Devon, Ellesmere, King William,
Lougheed, Melville, Prince Patrick, Prince of Wales, Somerset,
Sverdrup, Victoria, and other islands. Such wholesale claims, pre–
cluding sovereign rights of other states, though never officially
founded on the sector principle, nevertheless convey the appearance
of polar sectorism.
Sector Principle
. As early as 1895 the Canadian Government
notified other states that all territory between 141° W. longitude
and a line running west of Greenland appertains to the Dominion.
Twelve years later, in 1907, Senator P. Poirier proposed a resolution
in the Canadian Senate to the effect that the time had arrived for
Canada to make a formal declaration of possession of the islands
located to the north of the Dominion, extending to the North Pole.
He gave four arguments for such an assertion, including discovery,
purchase (by the Hudson
^
's
^
Bay Company), effective occupation--and
the sector principle.
The tacit acceptance of jurisdiction between the limits sug–
gested by Poirier seems to be implicit in the implementation of
Canadian policy on a number of occasions--sometimes even by high–
ranking public officials. To mention but a few, Captain Joseph
Elzear Bernier, commander of a Canadian expedition, erected a copper
plate on Melville Island in 1909, commemorating the taking of pos–
session for Canada of the entire "Arctic Archipelago" to the North
Pole between 60° and 141° W. longitude. It was preceded and suc–
ceeded by a number of expeditions which annexed more specific por–
tions of the archipelago
.
^
(19).
^
Thus, in 1904 possession was taken of
Ellesmere Island at Cape Herschell; in 1906 Cornwallis, Griffith,
Bathurst, Byam Martin, Melville, Prince Patrick, and the Parry
Islands were annexed; in 1908–1909 possession was taken of Corn–
wallis, Bathurst, Byam Martin, Banks, and Victoria Islands; and in
1913–1918 the Stefansson Canadian Arctic Expedition took possession
of Borden, Lougheed, and other islands. All of these acts were con–
doned by the Canadian Government.
Among the Canadian statesmen referring on occasion to the sec–
tor principle are the Dominion Secretary of the Interior Charles
Stewart who asserted claim to all territory between 60° and 141° W.
longitude in an address to the Canadian Parliament in 1925; Minister
of the Interior Thomas G. Murphy, who in his 1931 annual report refer–
red to the "Arctic sector" north of the Canadian mainland; and Minister
of Mines and Resources T. A. Crerar, who went so far as to tell the
House of Commons in 1938 that polar sectorism, and the Canadian sec–
tor in particular, were universally acknowledged.
In view of the attitude taken by the United States and Norway,
the latter statement is subject to serious doubt. But it cannot
be denied that Canada has claimed in the past and claims today all
known territory lying north of its mainland as far as the pole, be–
tween the meridional lines drawn northward from its longitudinal
extremities, and publicists generally acknowledge this claim
.
^
(4, p.170; 31, p.50; 32, p.50).
^
But Canadian territorial interests outside the island territory
to th
^
e
^
north of her mainland would appear to belie any official reli–
ance on the sector principle. Thus, Wrangel Island was claimed as a
Canadian possession in 1914 and an occupation was undertaken by the
Stefansson party in 1921 with the support of the Dominion Ministry.
The establishment of Canadian jurisdiction over the island was taken
for granted by both Prime Minister Arthur Meighen and his successor,
Mackenzie King. In 1922 and again in 1938, however, members of the
Cabinet had to admit lack of Canadian sovereignty.
Canada also has evidenced interest in expanding eastward into
Greenland. This possibility was broached on a number of occasions and
reached its climax during World War I, when shortly after the American
purchase of the Virgin Islands it was rumored that Denmark also con–
templated selling the polar island to the United States. The British
Government, speaking for both Canada and itself, declared that it would
be extremely undesirable for Greenland to pass out of the hands of
Denmark into those of any other power, and that in the event of the
disposition of the island, Britain would have a prior claim. Soon
thereafter the British Government recognized Danish sovereignty over
the entire island with the reservation that Britain must be consulted
in the event that Denmark contemplated disposing of the island
.
^
(19, p. 37).
^
Thus
the governments of Canada and Britain were opposed to the disposal
of Greenland to any other state.
In the meantime other states have refused to recognize a Cana–
dian polar sector by asserting pretensions to portions of the North
American archipelago. The United States refrained from recognizing
Canadian jurisdiction by not applying for flying permits to traverse
Ellesmere Island and Axel Heiberg Land at the time of the MacMillan
expedition. At an earlier period, American explorers actually took
possession of the central portion of Ellesmere Island in the name of
the United States, a claim that was reasserted in 1914 but has subse–
quently been abandoned.
Nor has Norway acknowledged a Canadian sector. In 1899 the
Norwegian Government claimed jurisdiction over Axel Heiberg and the
Ringnes Islands, discovered by Otto Sverdrup, and to the northern
and western sections of Ellesmere Island. But these claims were
abandoned in 1930 with the specific provision that this action was
not founded on any sector principle. In 1918 Denmark also claimed
part of Ellesmere Island, regarding it as
terra nullius
and therefore
subject to acquisition by any state through effective occupation.
Canada protested against this attitude in 1920, to which the Danish
did not reply.
Effective Occupation
. As in the case of the Soviet Union, the
Dominion of Canada is careful to fortify its juridical position by
means of the various techniques of state control applicable to the
polar regions, thereby establishing valid claims on the basis of effec–
tive occupation
.
^
(8, 15, 19, 34, 49, 52).
^
Illustrative of its practice are the propounding of
hunting and trapping controls and the issuing of appropriate licenses,
the granting of flying and landing licenses, and particularly the es–
tablishment of law and order by the Eastern Arctic Patrol and the
Royal Canadian Mounted Police. The latter is engaged in carrying out
a plan of occupation and police control, enforcing both criminal and
civil law throughout the Northwest Territory which embraces the island
empire. It also administors justice, carries mail, and aids the sick.
In order to fulfill its responsibilities, it maintains a network of
posts, out of which Mounted Police patrols operate.
There scarcely is any doubt today that Canada possesses a valid
claim to the known Arctic islands to the north of her mainland terri–
tory. This claim is not founded on the sector principle, however, but
rather on effective occupation, aside from such original rights as
may have been based on discovery and symbolical annexation. Canadian
pretensions are the more certain because other states, such as the
United States, Norway, and Denmark, have permitted their tenuous
claims to lapse by dereliction. Though some states, relying upon
effective occupation, occasionally have refused to recognize the vali–
dity of Canadian pretensions, this was due rather to the belief that
Dominion occupation was inadequate than to a failure to recognize
the validity of the principle. In other words it simply is a matter
of time for the Canadian title to become absolute.
Denmark
Danish polar territory has been comprised of the sub-polar islands
of Greenland and Iceland, over which jurisdiction was acquired many
centuries before sectorism was first conceived. Iceland was occupied
as early as the ninth century, and Greenland was discovered and colon–
ized from Iceland about the end of the tenth century. The Icelandic
Althing
(Parliament) took an oath of allegiance to King Haakon of
Norway in 1262. Norwegian rights to these islands followed it into
the joint Scandinavian state when the three kingdoms of Norway, Den–
mark, and Sweden formally united under one king by the Kalmar Act of
Union in 1397. From the fifteenth to the early eighteenth century
Greenland was left largely to itself and the European population dis–
appeared, but in 1721 the island was recolonized by a party of Norwe–
gians. Sweden left the tripartite union in the sixteenth century
while Norway, with Greenland and Iceland, remained united with Den–
mark. When the latter ceded Norway to Sweden by the Treaty of Kiel
in 1914, the islands continued under Danish jurisdiction.
Greenland
. It is obvious from history that jurisdiction over
Greenland and Iceland can scarcely be attributed to the sector prin–
ciple. As a matter of fact, even the most ardent sectorists, with
the exception of Lakhtine, hesitate to ascribe a polar sector to Den–
mark based on Greenland. On occasion the Danish Government has laid
claim to territory lying to the north of Canada, as indicated above.
Danish jurisdiction over Greenland, despite an absence of complete
effective occupation, was recognized by other power
^
s
^
.
^
(50).
^
During World War
I when the United States purchased the Virgin Islands, the Secretary
of State thus assured Denmark that the American Government had no ob–
jection to an extension of her political and economic interests through–
out the island. In 1919 the Danish Government asked a number of the
leading states to do the same. On the recommendation of Canada, the
British Government did so in 1920, subject to the reservation noted
earlier, and the French, Japanese, Italian, and Swedish governments
rapidly followed suit, without reservation. Only Norway contested the
Danish claim to sovereignty over the entire island, which was resolved
by the Eastern Greenland arbitration in 1933 on the basis of effective
occupation, as indicated above
.
^
(28, 37).
^
Iceland
. When considered from an international point of view,
the question of sovereignty over Iceland raises even fewer complica–
tions than does that of Greenland
.
^
(51).
^
Though Iceland has enjoyed sover–
eign status during various periods of history, for a long time it
possessed a definite constitutional relationship with Denmark and,
as such, its early history parallels that of Greenland. The nineteenth
century was marked by a gradual political and economic emancipation,
however. The island received its first recorded constitution in 1874,
which was followed by a grant of home rule 30 years later. In 1915
it achieved virtual autonomy and in 1918 Denmark recognized it as a
sovereign state with allegiance to a common monarch. Following World
War II, it separated completely from Denmark, was admitted to member–
ship in the United Nations, and became a signatory of the North
Atlantic Treaty.
Polar Sectorism
. Neither the government nor the publicists of
Denmark subscribe to Arctic sectorism. There is no evidence to sup–
port Danish adherence to the principle either in pertinent diplomatic
correspondence or in the arguments of Denmark concerning Eastern Green–
land before the Permanent Court of International Justice. Denmark
clearly supports the principle of effective occupation, as was the case
in the Ellesmere Island affair with Canada. In the Eastern Greenland
dispute with Norway, effective occupation again was relied upon as
Denmark's chief bulwark for possession.
JURISDICTION OVER THE POLAR SEA AND ICE FORMATIONS
Inasmuch as the Arctic is an oceanic basin, the problem of
sovereign jurisdiction is concerned not only with landed territory.
Most of the area is water- or ice-covered, and consequently the legal
principles governing jurisdiction over the seas and ice formations
are equally important. While international law concerned itself with
the former for some centuries, the latter has been given serious con–
sideration only in the last few decades.
Arctic Seas
It is universally agreed today that international law recognizes
the high seas to be free (
mare liberum
), for the common use of all
nations. It also is commonly held that states exercise sovereign
jurisdiction over adjacent territorial waters or marginal seas. Per–
haps the most serious problem associated with territorial waters is
one of defining their extent. There is no definite international agree–
ment fixing their width, although the majority of states accept the
three-mile rule. Nevertheless, it is rather common practice to extend
marginal jurisdiction for specialized purposes such as the enforce–
ment of customs restrictions.
Whereas prior to its appropriation, landed territory constitutes
terra
(or
res
)
nullius
(belonging to nobody, and therefore appropri–
able), the status of water-covered areas has not been as clearly es–
tablished. By and large, however, it is contended that it constitutes
res communis
(belonging to all) or
res publica
(the public property
of the international community), and therefore, coming under the juris–
diction of all, cannot be appropriated by any state without the con–
sent of the others.
The complexity of the problem of maritime jurisdiction is due
mainly to the distinction in international law between territorial
waters and the high seas. Were the sector principle accepted juridi–
cally, there would be little difficulty, since the elements within a
given sector, including marginal waters and the high seas, would then
fall under the jurisdiction of subjacent polar states. But the prin–
ciple has not been incorporated into international law, and even Soviet
authorities disagree on the applicability of sectorism to water-covered
areas
.
^
(25, pp. 712 ff.; 53, pp. 346).
^
The Soviet Government itself distinguishes between territorial
waters and the high seas in the Arctic. The 1926 decree refers only
to landed territory, and additional Soviet decrees specify the extent
of Soviet marginal jurisdiction for fishing and other purposes.
Inasmuch as no special juridical rules have been universally
adopted for the polar seas, the ordinary principles of law applicable
elsewhere must be applied to the Arctic. Riparian states consequently
enjoy sovereign rights in territorial waters adjacent to their landed
territory, but the high seas are free. If the sector principle were
applied to Arctic waters, there would be the difficult problem of de–
fining southern latitudinal boundaries in the channels between landed
territory, as in Bering Strait, between Greenland and the islands to
the west, and particularly in the Greenland Sea between Greenland and
Spitsbergen as well as the Barents Sea between Spitsbergen and Norway.
Arctic Ice Formations
Polar sovereignty is further complicated by the question of juris–
diction over ice-covered areas. There frequently is no visible dis–
tinction between land and sea in the Arctic. The transition from flat,
snow-covered land to the ice-covered sea often is imperceptible and
the coastline hardly distinguishable. Because the polar basin is not
entirely covered by
[:
o
]
pen water or by ice, the juridical principles
governing jurisdictional rights over both landed territory and water–
covered areas sometimes are considered to be inapplicable to ice
formations.
Soviet writers contend that some jurisdiction should be exercised
over Arctic ice by subpolar states
^
(3, p. 28).
^
S. V. Sigrist
^
(43)
^
and E. A. Korovin
^
(21, 22, 23)
^
further agree that the limits of this jurisdiction should be coter–
minous with sectoral boundaries, while Lakhtine believes in complete
control over only immobile ice of considerable dimensions
.
^
(25, p. 712).
^
Needless
to say, the meaning of the latter would be difficult to define. The
majority of non-Soviet writers refuse to acknowledge sovereign rights
over ice-covered areas of the Arctic Basin, though several are prepared
to admit some hegemony over coastal permanent ice.
Aside from Lakhtine's complicated and indefinite suggestion,
three alternatives are possible. In the first place, were polar
sectorism completely and universally approved, the matter of juris–
diction over ice would be resolved very simply. But this is not the
case and even the Soviet sectoral decree of 1926 fails to apply the
principle to ice-covered areas. Secondly, if no distinction is made
between ice and water, states exercise jurisdiction over the ice for–
mations within territorial waters but ice located in the bulk of the
Arctic Basin is considered as
res communis
, as are the high seas.
Thirdly, a compromise
^
^
might be devised, recognizing jurisdiction–
al rights over permanent ice attached to the coasts of littoral Arctic
states and extending to an arbitrarily prescribed maximum distance.
Such jurisdiction would be limited to 12 or 15 miles, or whatever
might be commonly agreed upon for the effective administration of re–
venue, fishing, and other national regulations. This, plus the mar–
ginal belt should prove sufficient for the enforcement of national
laws, except in the case of shelf ice (such as the Antarctic Ross
Barrier), over which jurisdiction would extend to its seaward limits.
Of course, if the edge of the permanent, coastal fast-ice is less
than the designated distance from the shoreline, the territorial
waters would be measured from the edge of the ice.
If this theory were accepted as law, it would provide for some
control over a marginal strip of ice, plus the customary extent of
territorial waters, even though the latter area were likewise ice–
covered. Sovereign rights over both would be assimilable to juris–
diction over territorial waters. The remainder of the ice-covered
area of the Polar Basin would constitute the high seas, subject to
the laws governing
mare liberum
.
Admittedly, this suggestion is merely an hypothetical solution
and is not actual law. Until the community of nations accepts a
proposal such as this by means of an international convention or some
other form of "international legislation," the present law remains as
outlined, namely, that states possess no jurisdiction over ice forma–
tions beyond the limits of their territorial waters, the degree of
congelation in no way determining the legitimacy of exercising juris–
dictional control.
* * * * *
The sovereign status of known Arctic territory thus is fairly
well defined. The juridical disputes of the nineteenth century appear
to be satisfactorily resolved. With the improvement of trans–
continental aviation, the atom bomb, rocket propulsion, the guided
missile, and the possibility of trans-polar warfare, however, it is
not unlikely that interest in the question of polar sovereignty will
continue.
The Soviet Union will jealously guard her possessions against en–
croachment, as will the Dominion of Canada. The United States, enjoy–
ing a poleward bastion to the northwest in Alaska, will seek to but–
trees her defenses to the north and northeast. Mutual defense agree–
ments with Canada render the Dominion's islands available for common
defense arrangements to the north. Interest therefore is likely to
be concentrated particularly on Greenland and Spitsbergen, and Denmark
and Norway may be confronted with specific inducements or demands to
cede sovereignty, or at least base rights, in these polar territories.
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