McGill University law professor Armand de Mestral, an expert on international law and trade law as well as European Community law, was the keynote speaker at Glendon’s fifth annual Jean-Gabriel Castel Lecture on International Law & International Organizations March 11.
Presented in both English and French, “Navigation in Canada’s Arctic Waters: Is There a Problem?” was held in Glendon’s BMO Conference Centre.
Glendon international studies Professor Stanislav Kirschbaum introduced de Mestral as one of Canada’s eminent jurists and professors of constitutional and international law.
For de Mestral, the 1981 United Nations Convention on the Law of the Sea is still considered pertinent today. However, the convention explores only the Northwest Passage and there are other passages to consider, such as the Victoria Passage in British Columbia.
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Right: Professor Stanislav Kirschbaum (left), Glendon Principal Kenneth McRoberts, McGill University Professor Armand de Mestral and Osgoode Professor Emeritus Jean-Gabriel Castel
“I am here tonight to discuss the Canadian Arctic because, as we know, the Arctic ice is in the process of melting,” said de Mestral. “With Arctic navigation an ever-growing possibility, this topic becomes inevitably one of the great geopolitical questions for the global community. The points I would like to address tonight relate to the potential problems confronting Canada in the domain of international law, in the eventuality that [Arctic] navigation becomes a reality.”
Recent Canadian laws make it mandatory for ships passing through the Canadian Arctic to indicate their intention of doing so and to maintain communications with Canadian authorities during their passage, thereby recognizing Canada’s control over its Arctic waters, said de Mestral.
The adoption of laws by Canada in 1970 governing the prevention of pollution in the Arctic refers not only to water pollution, but also to the manufacturing of boats and the materials used in this process. These laws announce Canada’s intentions of facilitating Arctic navigation, governed by Canadian laws. It was with those intentions that then External Affairs Minister Joe Clark declared in 1985 that interior waters among the Arctic islands are national, not territorial. The reactions of other maritime countries to this declaration, and the need for an equitable vision over the issues of Canadian Arctic waters, became questions to consider at that stage.
Left: Armand de Mestral
Russian, Turkish and American policies with respect to Arctic navigation are similar to Canadian practices, said de Mestral. He declared that the United States is usually the country which resists most vehemently the notion of Canada’s sovereignty over its Arctic waters. The US considers this contradictory to international law and has invited the international community to define the status of the Arctic. The two main points of contention in this process are the legal status of the waters and the rules of passage, as defined in Article 37-44 of the 1981 UN Convention on the Law of the Sea. Since this convention deals exclusively with international waters, the question of whether the Arctic waters are national or international is raised once again.
"If there is one legal question over which Canada and the US disagree, it is this one. But as far as I am concerned, the problem is not as serious as reporters and the media make it out to be. It seems that any concerns about the disappearance of the [Arctic] ice and climate change elicit great exaggerations. I think that the problem is less serious, because in spite of their differences on the principles concerned, both Canada and the United States know how to approach it,” said de Mestral.
“If one day our country has to confront this as a legal problem, Canada has every chance of coming out the winner, because Canada knows how to deal with such challenges, especially when they come from the US. Although the ice is melting, this is a slow process and the Americans care about our concerns, as confirmed by the continuous dialogue which exists between our two countries about this issue."
It is true that the US and possibly a few other states are challenging Canada on this, concluded de Mestral. “But so far, Ottawa has done a good job with regard to this issue and I believe that we have a strong point for taking legal action.”
More about Armand de Mestral
De Mestral holds McGill University’s Jean Monnet Chair in the Law of International Economic Integration. He has served on World Trade Organization and North American Free Trade Agreement dispute settlement and arbitration tribunals, and as president of the Canadian Red Cross Society from 1999 to 2001. He was made a member of the Order of Canada in 2007.
More about Jean-Gabriel Castel and the annual Jean-Gabriel Castel Lecture
The annual Jean-Gabriel Castel Lecture on International Law & International Organizations was established in 2005 to examine major legal issues of general concern. Castel, who lectures on international law at Glendon, is a distinguished senior scholar and research professor emeritus at York’s Osgoode Hall Law School. He is an author, international arbitrator, Fellow of the Royal Society of Canada, officer of the Order of Canada and Knight of the French Légion d’honneur.
One of the first foreign Fulbright scholars, he studied at Harvard Law School, where he obtained a doctorate in law. In his 52 years of teaching, 46 at Osgoode and, in part, at Glendon, Castel has authored dozens of books and treatises in English and French and over 100 scholarly articles. He served as editor-in-chief of The Canadian Bar Review for 27 years and received the David W. Mundell Medal for Excellence in Legal Writing in 2004.
Submitted by fourth-year Glendon political science student Alimatou Ka and Glendon communications officer Marika Kemeny