Comments on: Strange Things Done in the Midnight Sun http://www.legalfrontiers.ca/2010/03/strange-things-done-in-the-midnight-sun/ McGill's Blog on International Law Mon, 06 Feb 2012 18:16:56 +0000 hourly 1 http://wordpress.org/?v=3.0.1 By: Daniel Hacikyaner http://www.legalfrontiers.ca/2010/03/strange-things-done-in-the-midnight-sun/comment-page-1/#comment-230 Daniel Hacikyaner Wed, 31 Mar 2010 22:17:50 +0000 http://www.legalfrontiers.ca/?p=886#comment-230 Flag-planting may seem fascinating and exciting in a swashbuckling sort of way, however it remains a symbolic and insignificant endeavour and would not be accorded a great deal of importance in an international tribunal. The UNCLOS allows countries to select their preferred forum to settle legal disputes (art. 287). Their choices are as follows: the International Tribunal for the Law of the Sea (ITLOS), the ICJ, an arbitral tribunal (Annex VII) or a special arbitral tribunal (Annex VIII). Incidentally, Canada, Russia and Denmark have all ratified the UNCLOS; Canada opting for the ITLOS, Denmark for the ICJ and Russia not specifying as the USSR has already mentioned a preference for an arbitral tribunal. For a judge presiding over any of these tribunals, what would be the implication of flag-planting presented as evidence? There certainly is a historical basis for the act of flag-planting to mark the discovery of a territory. According to J.-Maurice Arbour and Geneviève Parent, symbolic acts such as flag-planting would be sufficient to create a preliminary claim on a particular territory for a limited period of time. The Island of Palmas case, heard by the Permanent Court of Arbitration at the Hague, can provide us with some insight. According to the Court, once a country has accomplished a symbolic act related to the discovery of a territory, it must establish an effective control over that territory within a reasonable amount of time or risk forfeiting any privilege bestowed by the symbolic act. The proof of effective control over a territory, according to the Court, is more significant than symbolic acts of discovery. Thus, if Russia were to plant any number of flags in the Arctic seabed, it would still have to prove effective control over that region. If Canada, having refrained from planting any flags, were to exert an effective control over the Arctic region, then that would trump the Russian flag-planting. This having been said, they are applying the historical act of flag-planting in a fairly unconventional way, since the flags are being planted under water. Canada would serve itself well to focus on the provisions of the UNCLOS dealing with continental shelves and, at the most, on proving an effective control over the Arctic. However, it should not waste time on flag-planting. Flag-planting may seem fascinating and exciting in a swashbuckling sort of way, however it remains a symbolic and insignificant endeavour and would not be accorded a great deal of importance in an international tribunal.

The UNCLOS allows countries to select their preferred forum to settle legal disputes (art. 287). Their choices are as follows: the International Tribunal for the Law of the Sea (ITLOS), the ICJ, an arbitral tribunal (Annex VII) or a special arbitral tribunal (Annex VIII). Incidentally, Canada, Russia and Denmark have all ratified the UNCLOS; Canada opting for the ITLOS, Denmark for the ICJ and Russia not specifying as the USSR has already mentioned a preference for an arbitral tribunal.

For a judge presiding over any of these tribunals, what would be the implication of flag-planting presented as evidence?

There certainly is a historical basis for the act of flag-planting to mark the discovery of a territory. According to J.-Maurice Arbour and Geneviève Parent, symbolic acts such as flag-planting would be sufficient to create a preliminary claim on a particular territory for a limited period of time.

The Island of Palmas case, heard by the Permanent Court of Arbitration at the Hague, can provide us with some insight. According to the Court, once a country has accomplished a symbolic act related to the discovery of a territory, it must establish an effective control over that territory within a reasonable amount of time or risk forfeiting any privilege bestowed by the symbolic act.

The proof of effective control over a territory, according to the Court, is more significant than symbolic acts of discovery. Thus, if Russia were to plant any number of flags in the Arctic seabed, it would still have to prove effective control over that region. If Canada, having refrained from planting any flags, were to exert an effective control over the Arctic region, then that would trump the Russian flag-planting.

This having been said, they are applying the historical act of flag-planting in a fairly unconventional way, since the flags are being planted under water.

Canada would serve itself well to focus on the provisions of the UNCLOS dealing with continental shelves and, at the most, on proving an effective control over the Arctic. However, it should not waste time on flag-planting.

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