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McGill Professor Armand de Mestral Explores Issues of Arctic Navigation at Glendon’s Castel Lecture


Glendon’s 5th annual Jean-Gabriel Castel Lecture on International Law and International Organizations approached the topic of “Navigation in Canada’s Arctic Waters: Is There a Problem?” on March 11th in Glendon’s BMO Conference Centre.

Right: Armand de Mestral

The keynote speaker of this bilingual lecture was McGill University law professor Armand de Mestral, an expert on international law, international trade law, and the laws of the European Community. True to Glendon’s bilingual reality, the lecture was presented in both English and French. (For more about Armand de Mestral, please consult the biographical section at the end of this article.)

In his introduction, the lecture’s host, Glendon International Studies professor Stanislav Kirschbaum underlined de Mestral’s illustrious career as one of Canada’s eminent jurists and professors of constitutional and international law. The keynote speaker responded on a humourous note, expressing his pleasure at having Jean-Gabriel Castel in the audience, by twisting Shakespeare’s words about Julius Caesar, “I have come to praise him, not to bury him.”  

For de Mestral, the 1981 UN Convention on the Law of the Sea is still pertinent today. But he declared that, although this convention discusses only the North-West Passage, there are other passages to consider as well, such as the Victoria Passage in British Columbia.

“I am here tonight to discuss the Canadian Arctic because, as we know, the Arctic ice is in the process of melting“, explained 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.”

L-r: Prof. Stanislav Kirschbaum, Glendon Principal Kenneth McRoberts, Prof. Armand de Mestral and Prof. Jean-Gabriel Castel at the lecture

Professor de Mestral outlined recent Canadian laws making 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.

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, but governed by our own laws.” It was with those intentions that [then] Secretary of State for External Affairs 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.

De Mestral outlined Russian, Turkish and American policies with respect to Arctic navigation, which are similar to Canadian practices. 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 U.S. 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 U.S. disagree, it is this one“, commented de Mestral. “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 inspite of their differences on the principles concerned, both Canada and the United States know how to approach it. 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 U.S. 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. “

Professor de Mestral concluded by pointing out that “[…] it is true that the U.S. and possibly a few other states are challenging us on this. 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

McGill University law professor Armand de Mestral, C.M. teaches international law, international trade law, and the law of the European Community, and holds the Jean Monnet Chair in the Law of International Economic Integration. His current research interest is the law of international economic integration. He has prepared books, articles and studies in English and French on international trade law and on Canadian comparative and constitutional law and international law. He has served on WTO and NAFTA dispute settlement and arbitration tribunals. He served as president of the Canadian Red Cross Society from 1999 – 2001 and was made member of the Order of Canada in December 2007.

More about Jean-Gabriel Castel and the Annual Jean-Gabriel Castel Lecture:
Jean-Gabriel Castel, FRSC, O.C. is a distinguished senior scholar and research professor emeritus at York's Osgoode Hall Law School, as well as a lecturer of international law at Glendon. He is an author, international arbitrator, and Fellow of the Royal Society of Canada. Castel was the
recipient of the David W. Mundell Medal for Excellence in Legal Writing in 2004. One of the first foreign Fulbright scholars, he studied at Harvard Law School where he obtained a Doctorate in Law.

In his 55 years of teaching, 46 of which took place at Osgoode Hall Law School and, in part, at York's Glendon College, Castel has authored dozens of books and treatises in English and French, and over a hundred scholarly articles. He also served as editor-in-chief of the Canadian Bar Review for 27 years. Castel is a Member of the Royal Society, an Officer of the Order of Canada and a Chevalier of the French Légion d'honneur.

Located at Glendon, the Annual Jean-Gabriel Castel Lecture offers an opportunity to examine major legal issues of general concern. It was established in 2005 to honour this great legal mind, with Castel himself as the first lecturer on February 9th of the same year. The subject of his lecture was “
The Legality of Unilateral Armed Intervention”, in which he questioned whether international law was evolving in the right direction in the current age of terror, neo-imperialism, and gross violations of human rights.

Article submitted by 4th-year Glendon student of Political Science Alimatou Ka and Glendon communications officer Marika Kemeny

Published on March 16, 2010