Filling an Arctic Gap: Legal and Regulatory Possibilities for Canadian-U.S. Cooperation in the Beaufort Sea

Abstract

Canada and the United States disagree as to the location of their maritime boundary in the Beaufort Sea of the Arctic Ocean, yet are working together in the region to map the extended continental shelf. This article proposes that the model used for joint seabed mapping - Canadian - U.S. scientific cooperation in accord with international law and institutions including the law of the sea - can also apply to the use of areas such as the Beaufort Sea. It suggests that cooperation to gather and expand upon relevant baseline data about the region is the proper foundation for any activity in the disputed area. On this basis, multiple, non-exclusive uses are possible and can provide for a range of sustainable and compatible activities if introduced gradually. Uses could be broader than typically associated with hydrocarbon cross-border unitization agreements and joint development zones or, for that matter, subsistence uses or marine protected areas. Continuing to expand the storehouse of data about the region can also serve as the foundation for joint ecosystem-based, integrated management or oversight of the area - a principle that is already central to each country’s approach to oceans management.

Canada and the United States have recently begun planning for a bilateral Large Marine Ecosystem (LME) management pilot project in the Beaufort Sea under the auspices of the PAME/Arctic Council. This paper introduces and complements that process by exploring the regulatory foundations for a model of science-based, phased, multiple, and non-exclusive uses of the Beaufort Sea triangle under joint oversight. Such a model allows for a comparison and possible future harmonization of the best regulatory practices in each system, improving the overall quality of the practices in each state.

This article provides concrete examples of how national legal systems can interrelate to fill gaps in arctic governance and regulation. The article and its title build on the Koivurova and Molenaar 2009 WWF gap analysis of arctic governance (i.e. international institutions) and regulation (i.e., international laws and regulations) by applying it to the domestic and bilateral arrangements of Canada and the United States. This article assumes that certain key concepts Koivurova and Molenaar identify—environmental assessment, marine protected areas, and “integrated cross-sectoral ecosystem-based ocean management” - are already woven into the legislative and regulatory fabric of Canada and the United States. However, it explores the extent to which this is true, as well as ways in which these elements can be expanded upon. It also suggests where these national systems might work together to improve legal and policy decisions affecting multiple uses of the disputed Beaufort Sea area. It concludes with a brief overview of how Canada and the United States do and may further incorporate selected multilateral, regional, and bilateral arrangements into their ocean infrastructures. This Part pays special attention to arrangements relating to the Arctic Council, touching also on the international law of the sea, and the International Maritime Organization. Throughout, the article draws eclectically on examples from fisheries, shipping, and offshore oil and gas activity.

Keywords: Law of the Sea, Arctic, Beaufort Sea, ecosystem, integrated ecosystem-based management, Oceans, mapping, science, cooperation, Arctic Council, Arctic Governance, International Maritime Organization, oil and gas, Koivurova, Molenaar, WWF