“ICE IN INTERNATIONAL LAW”
BY GERALD GRAHAM
Reprinted from Thesaurus
Acroasium, Volume VII: The Law of
the Sea. Thessaloniki: Institute of
Public International Law and
International Relations, 1977. Pp.
489-495.
This paper examines the status of ice in Public International Law.
.
Gerald Graham
.
ICE IN INTERNATIONAL LAW
By
Gerald F. Graham (Canada)
This study outlines the legal issues surrounding ice. The topic has
been largely ignored in the literature1, in spite of the fact that ice
covers a large part of the polar regions virtually yearround, and that
those regions account for roughly ten percent of the world’s surface. A
possible explanation for the oversight is that the subject is a technical
one and is largely on the frontiers of international law; but this can just
as easily be said for artificial islands and installations, which have
nonetheless received substantial treatment. There are similarities
between ice and artificial islands, but it is submitted that the
differences are great enough to warrant special consideration for ice.
The study proceeds from a description of ice and the uses to
which it may be put to an examination of the legal problems which
result. It concludes with an appraisal de lege lata and with some
proposals de lege ferenda.
A. Description and Use
For the sake of clarity, it is useful to divide the subject into two
areas – ice shelves and ice islands. The characteristics of ice shelves
which are of interest to the international lawyer are that they
1
An exception to this is its extensive treatment in Professor Donat Pharand’s book, The Law of the Sea of the
Arctic, with Special Reference to Canada, Ottawa, University of Ottawa Press, 1973. See especially Parts IV and V.
constitute glacial fringes, in such a way that they may be, at any given
time, partly afloat and partly attached to land and/or to glaciers on
land. The world’s largest, the Ross Ice Shelf, is roughly the size of Spain.
It, as well as others in the region, are mentioned in the 1959 Antarctic
Treaty2, but it is not clear whether they are to be regarded as land or
water3. As for the Arctic, on at least one occasion the existence of an
ice shelf has influenced the delimitation of a territorial sea4.
Ice islands, on the other hand, are strictly speaking, fragments
detached from the ice shelves. They float around in circular patterns in
the arctic, travelling up to two nautical miles per day. They are of
interest primarily because of their mobility; they tend to mock the
various traditional forms of hydrospace, i.e., high seas, territorial seas
and internal waters, as well as the more recent Exclusive Economic
Zone.
While at their largest they can be bigger than, for instance the
island of Thassos in the Aegean, ice islands may eventually either melt
or break up into bergs and floes. Seasonal ice may also break up into
floes. The various types may differ in origin, but for all practical
purposes they are similar, at least to the extent that they are capable of
some form of occupation and use. Nevertheless, the traits of mobility
and semi-permanence, which most types of ice share, make any
generally applicable ‘ice-is-land’ theory implausible.
2
Done at Washington, December 1, 1959. Reprinted in the American Journal of International Law, vol. 54, 1960,
pp.477-483.
3
Article V1 states: “The provisions of the present treaty shall apply to the area south of 60 degrees South Latitude,
including all ice shelves, but nothing in the present treaty shall prejudice or in any way affect the rights, or the
existence of the rights of any state under international law with regard to the high seas within the area”
4
The ‘coastal standing ice’ on the Russian Pacific Coast was used in 1911 as the base from which their twelve mile
limit for sea fishing was to be drawn. Cited in Bishop, WW. Jr., International Law, Cases and Materials, 3rd ed.,
(Boston: Little, Brown, 1971), p.601. As for the Canadian Arctic, the ice shelves off Ellesmere Island have never
served as baselines.
Be that as it may, a survey of the modes of usage of ice amply
demonstrates that an analogy with water is even less convincing. The
practical significance of is basically fourfold:
Scientific
This aspect constitutes the bulk of present activity on ice. Certain
teams of scientists have, for instance, been living on and studying ice
islands regularly for decades. In addition, several ships have been
deliberately imbedded in pack ice in order to have their drift charted
over long periods of time.
The Arctic is believed to have a profound effect on the world’s
climate, and much of scientific activity on ice islands is designed to
precisely measure this impact. It is commonly held, for instance, that
even a slight melting of the polar ice cap would cause massive flooding
down south as well as drastically alter agricultural growing seasons. In
the same vein, the ice shelves of the Antarctic are currently being
studied for clues as to the gradual rising of the world’s oceans5.
Military
Ice islands, like artificial islands, are increasingly being used for
defence purposes. Several such ‘islands’ have, for example over the
years been occupied and used as bases within the so-called Canadian
‘sector’ of the Arctic by both the Soviet Union and the United States. In
addition, the United States Navy is believed to be presently studying
the possibility of using some ice islands as giant aircraft carriers. Ice of
course already serves as a form of runway and landing strip for military
(and civilian) planes. It has even on occasion supported temporary
railways built for troop movement during wartime.
5
See “Scientists Drilling Through Antarctic Ice” International Herald Tribune, December 14, 1976, p.5
Economic
The chief economic function of ice over the years has been to
serve as a base from which hunting, fishing and sealing activities are
carried out. In the past it has occasionally been employed rather
exotically, such as at the turn of the century, when it served as the site
for a gambling casino more than three miles off the coast of Alaska6. At
the present time it is being used extensively for seismic activity in the
Canadian Arctic Archipelago.
Looking to the future, there is immense potential for projects
which would tap icebergs as a source of drinking water, an increasingly
scarce global resource. A proposal which would have exploited
icebergs during the British drought of the summer of 1976 was
regarded with skepticism, and a Dutch proposal seems to have got little
further, but a million dollar study is now being undertaken by a French
firm to determine the feasibility of towing icebergs from Antarctica to
Saudi Arabia, a project which is estimated as costing ninety million
dollars.
Navigation
Meanwhile, ice is for the most part a negative economic good;
Icebergs, floes and seasonal ice are serious hazards to navigation. One
need only think of the fate of the Titanic to appreciate the destructive
power of ice. This end and lesser calamities have led to the
establishment of the United States-run North Atlantic Ice Patrol7,
funded by eight countries and stemming from the 1948 International
Convention for the Protection of Life at Sea8. The extreme southerly
6
See L. Rolland, “Maison de jeu etablie sur les glaces au dela de la limite des eaux territoriales” Revue Generale de
Droit International Public, 1904, pp.340-345
7
See Agreement Regarding Financial Support of North Atlantic Ice Patrol, done at Washington on January 4, 1956.
UNTS 256:171
8
Done at London, June 6, 1948. UNTS 164:113
limits of the patrol’s activities, to within roughly 500 miles of the
Azores, illustrate that ice is not a purely polar phenomenon.
Anyone who doubts the seriousness of the problem is reminded
of the intense interest in the Manhattan voyages of 1969 and 1970
through the ice-choked Northwest Passage. The danger inherent in the
crossings contributed to the adoption of the Canadian Arctic Waters
Pollution Prevention Act of 970. The recency of the problem and the
pioneering state of science are illustrated by the fact that it was in that
same year that scientists discovered ‘pingoes’- underwater stalagmites
of mud and ice which present a significant danger to shipping. Ice in
general, it should be noted, will increasingly inhibit seabed exploration
and exploitation, particularly that which is done from artificial islands
and installations, in areas such as the Beaufort Sea and in the
Northwest Atlantic.
B. The Legal Dimension
The question arises as to who may exercise jurisdiction over ice. The
answer would seem to depend upon two overriding factors: 1 – where
the ice is located; and 2 – the status granted to it. As to the first, there
is no problem in principle within internal waters, from a public
international law viewpoint; nor within the territorial sea, to the extent
that the ice may be said to ‘originate’ within either of these regimes of
hydrospace. On the high seas, however, the legal status would appear
to come into play. Do, for instance, icebergs ‘belong’ to any particular
state? If so, to which one? The one where the ice originates, perhaps?
From the foregoing discussion of application, it will be seen that it
could become an important question as to whether or not, for instance,
icebergs can simply be dragged off without compensation. Can one in
fact talk of ‘title’ to glaciers, ice islands and the like, in the sense of their
being a res nullius, or are they rather a res communis? If in fact ice is
for the most part a res nullius, the question might arise as to whether
the state claiming title could be held responsible for damage caused
from collision between a ship and an iceberg which originated in its
territory. In this vein, a norm already exists requiring the coastal state
to keep a channel ice-free within international straits9, and probably
also in bays and international rivers as well.
To now ice appears to have been treated, on the high seas at
least, as a res communis, as evidenced in the North Atlantic Ice Patrol
and other agreements10. In the future, however, as ice takes on more
positive value, the tendency is likely to switch towards ice as a res
nullius. Although there may be reason to regard floating islands as a
third type of space (alongside land and water) to which state
sovereignty might address itself11, it would seem more and more
plausible to consider ice as a natural resource over which a state may
presumably exercise sovereign rights. Such a concept might be quite
useful within, for instance, the Exclusive Economic Zone.
The whole matter of jurisdiction and status is not merely one of
academic interest. The question of the status of ice islands took on
practical legal significance in the Escamilla Case12 which took place in a
U.S. District Court in Virginia in 1970. The relevant facts are that an
American citizen was tried on suspicion of murdering another American
on an ice island being worked within the so-called Canadian ‘sector’ of
the Arctic. The two men were part of a scientific survey team, and the
ice island upon which they were working in the Arctic Ocean, named
9
See Erik Bruel, International Straits; A Treatise on International Law, vol.1 (Copenhagen: NYT Nordisk
Forlag/Arnold Busck, 1947, pp. 221-222.
10
For an example of a conventional agreement, see the Agreement Concerning Co-operation in Ice-breaking, with
Protocol. Done at Helsinki, December 20, 1961. UNTS, 419:79
11
See his Individual Opinion in the Corfu Channel Case, ICJ Reports, 1949, p.43.
12
U.S.A. vs. Escamilla, No.71-1575, U.S. District Court, Eastern District of Virginia.
Fletcher or T-3, had floated to within 185 nautical miles of the Canadian
archipelagic islands.
Much of the pleading revolved around the status of the ice island
in question. The defence claimed that United States courts had no right
to exercise criminal jurisdiction since the United States Code applied
only to ships, which the ice most certainly was not. The prosecution
argued, on the other hand, that as the ice island was in fact high seas,
and as it mattered little in any case whether an offence took place on
board a vessel or in the sea itself, jurisdiction was justified. The
Canadian Government, which chose to wave jurisdiction, appears to
have favored the tactic of assimilating the ice to a ship13, thereby
avoiding a controversy over either the sector theory (which Canada has
never officially claimed and which the United States has consistently
rejected), or Canadian Arctic claims generally.
The accused was eventually found guilty, jurisdiction apparently
being exercised on the basis of nationality. Thus, the question of the
status of the ice was circumvented. Nonetheless, the question could
easily arise in the near future as the multiple usages of ice increases.
The whole question of jurisdiction and sovereignty over ice might
become complicated in the future if it can somehow be shown that a
particular ice island ‘belongs’ to some state or other. What will lead to
most of the interesting problems is likely to be the mobility factor, i.e.,
the fact that although ice may in some way or another be harnessed, it
moves around more or less independent of human interference. Ice
may, for instance, form on the high seas and float into territorial and
internal waters, or vice versa. It may even form in the internal waters
of one state and end up in the internal waters of another.
13
See Pharand, op.cit., pp. 202-203.
Conclusion
There is only very rare mention of ice in conventional
international law. It is difficult to speak of a custom regarding its
status, owing especially to its random and disparate usage. Thus, while
ice seems to have a character all its own, being neither stationary as
land, nor artificial as a ship, nor navigable like water, yet increasingly an
object of interest, it has no status of its own in international law. On
first glance it would appear to have a status mixtus, for on the high seas
it has been regarded as something akin to a res communis, whereas
elsewhere it has been the subject of state jurisdiction. But the fact that
one and the same piece of ice may move around from one area to
another makes any such dual classification impracticable. In short, ice
has in fact a distinctive physical character, though this is not reflected in
positive international law. Thus, there would appear to be a lacuna in
the law.
De lege ferenda
There is reason to consider ice shelves as glacies firma, akin to
terra firma. As Lakhtine pointed out in 1930, “…ice formations that are
more or less immovable should enjoy a legal status equivalent to polar
territory”14. Floating islands, however, pose greater problems because
of their mobility. They are, as has been pointed out, different from
land. Moreover, they are of increasing national and community
interest. As such, they should be the subject of a multilateral
convention which would give them a special legal status commensurate
with their physical characteristics, as well as set out the ground rules
for their application and usage, in order to avoid the problems over
responsibility, jurisdiction and ownership which are otherwise bound to
arise.
14
W.L. Lakhtine, “Rights Over the Arctic”, American Journal of International Law, vol. 24, 1930, p.712.
