Settling Sovereignty Claims over the Hans Island

Context

Since the 1960s onward, in the circumpolar Arctic, a tiny barren islet of just 1.3 km² has been triggering non-negligible tensions between two NATO allies. Indeed, Denmark and Canada are both claiming sovereignty over the Hans Island, situated midway between the continental shelves of the Ellesmere Island and Greenland (officially an autonomous Danish dependent territory). Global warming is progressively unclosing access to new shipping routes across the Arctic, while revealing novel natural resources reserves (such as oil and natural gas) entrenched in the seabed, and notably in the waters surrounding the island. Thus, ownership would allow a clear vantage to exploit the prospective hidden resources and fisheries that are intrinsically linked to this uninhabited rock.

Media and domestic politicians relayed the ongoing dispute. It had been commonly displayed as a “flag war” between Canadians and Danes, where extensive expenses were mainly justified for posturing purposes. For example, in 2004 :

“Canada conducted a US$ 4 million dollar military exercise in the Arctic to reinforce its claims to Arctic sovereignty, part of which was a patrol by Canadian troopers, who hammered metal plaques into the rocks of Hans Island, claiming it as Canadian” ¹.

Such a case can be defined as a microcosm of a broader and urgent issue related to the melting Arctic sea ice. Indeed, we will need a collaborative international mechanism that would pave the way towards other sovereignty claims that will certainly emerge in the coming years, especially if no real efforts to mitigate climate change are witnessed following the recent Paris Agreement. Consequently, the Hans Island might experience some proactive diplomacy based on multi-state collaboration, benefiting from a model of shared alternate sovereignty while consolidating the historic traditions and opinions of the pre-established local population (i.e. the Inuits). Otherwise, calling on the International Court of Justice (ICJ) as a third party could lead to a suboptimal outcome for one or both of the claimants.

“The Danish-Canadian Delimitation Agreement”

In 1973, the two nations mutually agreed on a continental shelf boundary that listed 127 turning points between the Davis Strait and the limit of Robeson Channel², by merely using an equidistance line, as mentioned by the Article 1 :

The dividing line in the area between Greenland and the Canadian Arctic Islands, established for the purpose of each Party’s exploration and exploitation of the natural resources of that part of the continental shelf which in accordance with international law appertains to Denmark and to Canada respectively, is a median line which has been determined and adjusted by mutual agreement.”

Notwithstanding, such a method entailed a geographic loophole of 875 meters, where no official delimitation line connects the points 122 and 123 that illustrate the south and north shores of the Hans Island , as displayed in the figures³ herein below.

(Left) Canada-Greenland Continental Shelf Boundary — (Right) Micheal Byers, “Who owns the Arctic” (p.23).

Following the treaty release, diplomatic protests flared up as the two nations quickly recognized that the equidistance line was exclusively dividing relative maritime areas (waters and seabed), regulating fishing and shipping zones for example.

The absence of legally-binding details on territorial land dispute midway between the two continental shelves led to a diplomatic stalemate. Collaboration and further mutual agreements between Denmark and Canada will be able to adequately settle the dispute; Michael Byers⁴ argued that :

When an international legal dispute crystallizes, subsequent efforts by both countries to strengthen their respective positions are of no legal effect. Under international law, a diplomatic protest by one country is usually sufficient to prevent the creation of sovereign rights by another country through the protested act.”

Using International Law to govern the Hans Island ?

Provided that such an international dispute cannot be settled diplomatically between the two countries, it would seem adequate to call on the International Court of Justice as a third party that would bring a neutral and impartial judgement. Notwithstanding, the fact that Canada withdrew from the ICJ’s compulsory jurisdiction in 1985 will certainly constrain this intervention even though Denmark would like to lodge an appeal.

Then, if Canada explicitly agrees to settle the dispute via the international court, how could we predict the decisional outcome of the ICJ ?

In this peculiar case, we might try to balance the claims according to three distinct factors :

(i) Historic Consolidation constitutes the most controversial dimension of this international dispute. In order to steer the decision of the ICJ, several parameters or criteria need to be demonstrated.

As an example, discovery of the island could actually give a clear sovereignty vantage to Denmark; going back as far as the 1880s, it appeared that the US Arctic explorer Charles Francis Hall discovered the uninhabited rock and named it after his Greenland colleague Hans Hendrik Fiskenæsset. Moreover, Denmark would also be able to justify that there has been a peaceful possession by the indigenous populations for a long-term period, as the inhabitants of northwestern Greenland have historically hunted the region surrounding the Hans Island, although they did not settle on the land per se.

In terms of administrative control, actual facts are more ambiguous and subject to debate; indeed there has been no robust cases for granting sovereignty, as iterative military exercises and costly posturing actions have not shown sufficient and durable control over the island. The past experiment of Great Britain with the Falkland Islands⁵ constitutes a great example of the unreliability of physical tools such as the usage of plaques and flags to denote land control and further sovereignty.

(ii) Geography would be an opportunity to resolve the dispute by the intermediary of non-legal arguments supported by the concept of natural borders. Nonetheless, the relevance of that concept can be seriously questioned, as the future outcome would highly seem arbitrary regarding the continental equidistance parameter of the Hand Island. In order to express an impartial decision, the Court would need a reliable and meticulous geographical mapping of the island and its surrounding area. Such a procedure would require a costly and multi-state scientific collaboration that would hardly reach consensus.

(iii) The United Nations Convention on the Law of the Sea is providing a more legal framework to these sovereignty claims. In order to properly define the Hans Island, we might mention article 121, section 3 :

“ Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zones or continental shelf”

Would it then be possible to claim sovereignty over such an island via the Exclusive Economic Zones of the two countries ?
The article 57 states that :

The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured”.

Such a concept was mainly used to efficiently and legitimately delimit the territorial waters of the circumpolar Arctic Nations (i.e. Denmark (via Greenland), Russia, the United States, Canada and Norway), providing them with clear sovereignty status as stipulated by the article 56, section 1, subsection (a)⁶.

Despite the potential vantage of demonstrating that the Hans Island is embodied in the exclusive economic zone of a particular country; knowing that the narrow distance separating the two continental shelves of the Ellesmere Island and Greenland is reasonably less than 200 nautical miles, there will certainly be overlapping between those exclusive economic zones. Such a situation will only be settled following negotiations and mutual agreements, leading to a new diplomatic stalemate.

Recommendations

Calling on the International Court of Justice for litigation over the Hans Island might be risky regarding the domestic politics of both countries. Although the systematic approach based on historic, geographic and legal factors will certainly help to grant sovereignty over the island, the arbitrary outcome might discouraged Denmark and especially Canada to make an appeal to a panel of judges. For this reason, and in order to break out of the current diplomatic stalemate, we would recommend a policy initiative focusing on mutual agreements via the incorporation of clearly defined trade-offs that would benefit every parties at stake in this peculiar Arctic issue.

In that sense, building on the model of the Pheasant island⁷ between France and Spain, it will be relevant and adequate to declare the Hans Island as an official condominium where Canada and Denmark would share sovereignty and thus administrative control over a 6-months cycle basis; such a responsibility being delegated to the governments of Canada (at the federal level, and notably through the intermediary of the province of Nunavut) and Greenland. As a proactive diplomatic measure, such an agreement will be conditional on the respect of indigenous population and their natural habitat, while fostering environmental preservation in the prospect of rising temperatures due to climate change.

Consequently, it will induce the two countries to allow free and non-rival access to Inuits on the Hans Island and the waters surrounding it. Knowing about the clear incentives to further exploit the non-renewable resources available below such a “rock”, we would also institute the land as a transboundary protected area (based on the example of the Waterton-Glacier International Peace Park⁸) that would naturally delimit the Canada/Greenland border, while providing them with an alternate shared sovereignty status.

Endnotes

¹ Mark Jarashow, Michael B. Runnels and Tait Svenson (2006). “UNCLOS and the Arctic: The Path of Least Resistance”, Fordham International Law Journal — Vol. 30, Issue 5, Article 9 (p. 1627).

² See the herein below map (page 6) illustrating the “Canada-Greenland Continental Shelf Boundary”
Source of data : Office of the Geographer, Department of State

³ (i) See previous map for the “Canada-Greenland Continental Shelf Boundary”, a better display is available at the following link : http://www.state.gov/documents/organization/61370.pdf

(ii) Illustration of the Hans Island and the geographic loophole between points 122 and 123, cf. Michael Byers (2009). “Who Owns the Arctic ? — Understanding Sovereignty Disputes in the North”, Douglas & McIntyre (p.23).

⁴ Michael Byers (2009). “Who Owns the Arctic ? — Understanding Sovereignty Disputes in the North”, Douglas & McIntyre (p.26).

⁵ In 1774, the British withdrew their settlement from the Falkland islands as part of a broader global realignment of British forces. The departing commanding officer ordered to erect a flag and plaque that would reaffirm British sovereignty over the Islands.
According to M. Cawkell, D. Maling, and E. Cawkell, “The Falkland Islands” (London : Macmillan & Co., 1960 — p. 35), the plaque stated :

“Be it known to all nations that the Falkland Islands, with this fort, the storehouses, wharfs, harbors, bays, and creeks thereunto belonging are the sole right and property of His Most Sacred Majesty George the Third, King of Great Britain, France and Ireland, Defender of the Faith, etc. In witness whereof this plate is set up, and his Britannic Majesty’s colors left flying as a mark of possession by S. W. Clayton, commanding officer at Falkland islands, A.D. 1774.”

Until nowadays, British sovereignty has still been criticized and questioned several times, notably by Argentina and their saber-rattling relations that emerged in 1982.

⁶ Article 56, section 1, subsection (a) of the United Nations Convention on the Law of the Sea (UNCLOS) :

“In the exclusive economic zone, the coastal State has :
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.”

⁷ As described by Frank Jacobs on its New York Times blog :“The World’s most exclusive Condominium” , even if condominiums do no survive very long, this case made the exception with regard to its alternate shared sovereignty :

“Pheasant island is not only the oldest surviving condominium, it is also the only one where sovereignty isn’t shared simultaneously, but alternately. For six months a year, pheasant Island is French, for the other six, it is Spanish.”

⁸ According to Parks Canada :

“Today, Waterton Lakes National park and Glacier National Park use peace and goodwill to work towards shared management: protecting the water, plants and animals that are found in the WGIPP. You will find the Waterton-Glacier International Peace Park an oasis of solitude and tranquility, a powerful setting for personal reflection on peace.”

Written By: Raphaël Roman

Raphaël’s interest in environmental awareness and global affairs sprung from his fascination with the biodiversity of the Swiss Alps. His Bachelor in Economics strengthened his belief that nature is closely interlocked with economics, and could notably help to discern quantitative approaches to fossil fuels and deforestation while emphasizing the idea of a “green economy”. By convincing governments, NGOs, and international institutions to foster their actions and strategies in a sustainable manner, we might ensure future generations have equal access to natural wealth. He believes today’s young leaders could be the new catalysts of a substantial shift in the near future.

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