Friday, April 20, 2018

Canada's Air Defence Identification Zone and the Battle for the Arctic (Herbert Aclan Loja)

Canada's Air Defence Identification Zone and the Battle for the Arctic
By Herbert Aclan Loja
When I mentioned to Professor Brian F. Havel that the Canadian Defence Department is expanding the Canada air defence identification zone (ADIZ) boundaries westward, northward, and eastward, he quipped that the battle for the Arctic has begun. The northeastward expansion in particular is critical to Canada’s long-term strategic position. The expanse of the expanded ADIZ covers a continuum of both territorial and extraterritorial airspaces. It blankets the airspaces superjacent Canada’s land territories, internal as well as interconnecting waters and territorial seas of the Arctic archipelago of the Provinces of Nunavut and Northwest Territories as well as the contested or disputed territorial and non-territorial domains.[1] 
     Canada defines ADIZ as the ‘airspace that extends upward from the surface in those areas of Canada and off the coasts of Canada, the boundaries of which are specified in the Designated Airspace Handbook.’[2] This innocuous phraseology, when associated with the pertinent circulars, regulations, and other issuances, really means that Canada, using ADIZ as a device, can control all aircraft flying through the defined airspace area by means of identification procedures. 
     The Canada ADIZ boundary expansion has at least four crucial implications. It envelops the airspaces above the Northwest Passage, the exclusive economic zone (EEZ) off the northern coast of Yukon and Canada’s Arctic archipelago, and portion of the Hans Island. The ADIZ’s northern breadth also somewhat generally follows the outlines of the sector of the Arctic which Canada has pushed rather ambivalently to be considered as Canadian territory. 
     The Northern Passage, the meandering sea route connecting the Atlantic and Pacific Oceans via the Canadian Arctic, was until recently non-navigable.[3] That changed when the warming sea temperatures began melting the ice sheets which once blocked the passage.[4] Canada, a state party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), considers the waters of the Northwest Passage as internal waters.[5] The United States (US), a state not party to the UNCLOS, treats the passage as international waters.[6] Other states, even those parties to the UNCLOS may follow or has even followed the US position and regard the passage as international strait.[7] If treated as international strait, ships can navigate through the passage and aircraft can fly through its superjacent airspace practically unhampered with at best minimal (or even non-existent) Canadian control over security and environmental matters.[8]
     While the EEZ off the northern coast of Canada’s Arctic archipelago does not seem to be very problematic, Canada’s maritime delimitation issues with neighboring states over the continental shelf and the extended continental shelf are far more challenging. In particular, the Russian Federation has continued the mapping, sampling, and marking of the sea floor to strengthen its claim to the continental shelf and the extended continental shelf.[9] 
     Canada and Denmark delimited their continental shelf between Ellesmere Island and Greenland in the 1970s by employing an adjusted median line.[10] However, territorial sovereignty over the Hans Island, which lies between points 122 and 123 of the continental shelf delimitation line along the Nares Strait, remains unresolved with both states taking turns performing flag raising ceremonies on the island.[11]
     Senator Poiriers first articulated the Arctic sector theory in 1907.[12] The theory posits that all ‘land, water, or ice’ within the longitudes which correspond to the projection of Canada’s landmass all the way to the common point at the North Pole shall be considered as Canadian territory.[13] The same rationale should likewise apply to the claims of all states contiguous to the Arctic.[14] Canada has not clearly indicated its avowal or disavowal of the theory in relation to the territorial status of the lands and waters in the Arctic.[15]
     Canada has gradually addressed these strategic concerns and objectives without unnecessarily unnerving its neighbors through an asymmetric way of extending its influence over the contested land, maritime, and aerial domains. The broadening of its ADIZ shores up its position in these areas as Canada can now exert control over the air volume of even the domains outside its territory. All aircraft, whether civil or state, irrespective of the intention to enter Canadian airspace have to comply with Canadian ADIZ regulations on the submission of flight plan, radio communications identification protocols, periodic altitude and position reporting and other requirements when flying through the Canada ADIZ area. [16] In addition, the enlarged ADIZ gives Canada the flexibility to use the coordinates as limits for sea defence applications. These ADIZ characteristics are not uniquely Canadian and can be found in other ADIZs as well especially in Northeast Asia.
     With the broadened ADIZ, Canada is now able to control not just the entry of foreign ships in the waters of the Northwest Passage but also the flight of foreign aircraft over the superjacent airspace, protect its EEZ in the north pending delimitations of the continental shelf and extended continental shelf, maintain its position in the territorial tussle over the Hans Island, and send a subdued message that it is not abandoning the sector theory and its future expressions or mutations.
    The revised Canadian ADIZ appears as a measured response to protect Canada’s territorial sovereignty and consolidate Canada’s claims on both aerial and maritime domains. The Russian Federation is not expected to overly react as the northward extension essentially embraces only the Canadian EEZ. Neither would Denmark as the geographic coordinates of the Canadian ADIZ northeast expansion pass roughly midway above the airspace of the Hans Island. But the US response in the form of freedom of navigation missions will present Canada with the usual neighbourly discomfort.
     Canada’s expanded ADIZ will take effect on 24 May 2018 at 9:01 UTC, just in time for the coming of the summer when the sea temperature heats up in earnest and the Northwest Passage becomes more navigable. With the world attention focused somewhere else on Syria, the battle for control of the Arctic has quietly begun.

About the author:
The author is a PhD Candidate under the supervision of Professor Simon N.M. Young at the University of Hong Kong, Faculty of Law. He is currently a graduate research trainee under the supervision of Professor Brian F. Havel at the Institute of Air & Space Law, McGill University, Faculty of Law.

Notes:
[1] See Aeronautical Information Circular (AIC) 2/18, 1 February 2018 (NAV CANADA) <www.navcanada.ca/EN/products-and-services/Service%20Project%20Announcements/SPA-2018-ADIZ-EN.pdf> accessed 10 April 2018.
[2] Canadian Aviation Regulations SOR-96-433 (current to 26 March 2018) Part VI – General Operating and Flight Rules, para 600.01.
[3] J. Lewis Robinson, ‘Northwest Passage’ The Canadian Encyclopedia <www.thecanadianencyclopedia.ca/en/article/northwest-passage/#h3_jump_3> accessed 16 April 2018.
[4] ibid.
[5] ibid.
[6] Carolyn Beeler, ‘Who controls the Northwest Passage? It’s up for debate’, quoting Michael Byers, PRI’s The World (4 September 2017) <www.pri.org/stories/2017-09-04/who-controls-northwest-passage-its-debate> accessed 14 April 2018.
[7] ibid.
[8] See United Nations Convention on the Law of the Sea (concluded at Montego Bay 10 December 1982, came into force 16 November 1994) 1833 UNTS 397, Part III – Straits Used for International Navigation; See also, François Côté and Robert Dufresne, ‘The Arctic: Canada’s Legal Claims’, Parliamentary Information and Research Service, Library of Parliament, Canada, Publication PRB 08-05E (24 October 2008) 3.
[9] See for instance, Côté and Dufresne (n 8) 5.
[10] Agreement relating to the delimitation of the continental shelf between Greenland and Canada (with annexes) (signed at Ottawa 17 December 1973, came into force 13 March 1974) 950 UNTS 147, Art I. 
[11] David H. Gray, ‘Canada’s Unresolved Maritime Boundaries’ (Autumn 1997) IBRU Boundary and Security Bulletin 61, 68-69; See also Ryan Kristiansen, ‘Desolate Dispute: A Study of a Hypothetical International Court of Justice (ICJ) Decision’ (Summer 2013) 13(3) Canadian Military Journal 34, 39-38.
[12] Cf: Donat Pharand, The Law of the Sea of the Arctic: with Special Reference to Canada (University of Ottawa Press 1973) 134 fn 116.
[13] Ivan L. Head, ‘Canadian Claims to Territorial Sovereignty in the Arctic Regions’ (1963) 9(3) McGill Law Journal 200, 202-203.
[14] ibid.
[15] Donald M. McRae, ‘Arctic Sovereignty: Loss by Derelection? in William C. Wonders (ed), Canada’s Changing North (Revised edn, McGill-Queen’s University Press 2003) 427, 430; See also Gray (n11) 65. 
[16] See Canadian Aviation Regulations SOR-96-433 (n 2) paras 602.145 – 602.46 and in relation see Designated Airspace Handbook 95 (M6) <www.navcanada.ca/EN/products-and-services/Documents/DAH_Current_EN.pdf> accessed on 10 April 2018 and AIC 2/18 (n 1).

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