not provided for under UNCLOS. Given this legal vacuum, for ice islands that are
not fixed, which are the majority, an analogy with ships seems to be imposed,
96 i.e., a
solution in keeping with the treatment of the well-known Escamilla case
97 and the
majority approach in the literature.
98 Although the criterion is occupation, the
approach is not sovereignty-related (territorial claim of the ice islands) but rather
jurisdictional (in relation to the activities that take place on the ice islands). Based on
the notion of the jurisdiction of the flag state (ships),
99 one might talk of the
jurisdiction of the occupying state
100 in relation to unfixed ice islands on the high
seas. This solution is not perfect and does not address all the questions (degree of
occupation required, types of admissible uses, etc.); however, to the extent that the
usefulness of these ice islands arises from their status of floating unfixed
(i.e. moving) and non-permanent (i.e. progressively melting) platforms, for the
time being, the territorial struggle has been averted. New situations or circumstances
could reactivate the debate in the future. This is worth noting here because, from an
environmental perspective, in some marine areas the sea ice is one of the elements to
be granted protection. To this end, the failed proposal of an “OSPAR Arctic Ice High
Seas MPA” will be discussed below (Sect. 3.4).
96 As pointed out in the late 1970s by Pharand (1979, pp. 93–100), given the already important use
of the ice islands for scientific research—and to a lesser extent for the exploration of the CS—it was
advisable to define its legal regime. The author warned that this was a new legal issue for which
there was no conventional regulation (either in the 1958 Conventions or in the then negotiations of
what would ultimately become UNCLOS in 1982), and for which no customary law had yet been
formed through state practice. In light of this legal vacuum, and despite considering that the ideal
solution would be the adoption of a specific international treaty, the author raised the possibility of
the analogy with similar objects for which there was a legal regime (natural islands, artificial islands,
ships), concluding that the most appropriate analogy was that of ships. Since they were not
permanently fixed in one place, ice islands were not comparable to natural or artificial islands; in
that author’s view, they would only be comparable to artificial islands if they were used for the
exploitation of resources of the platform or superjacent waters and were fixed to ensure their
permanent nature.
97 The events took place in 1970 on Ice Island T-3, also known as Fletcher Island, when the
expedition leader (B. Lightsey) was killed by a shot accidentally fired by another member of the
investigation team (MJ Escamilla), both Americans. Although presumably the ice island had
emerged as such when detached from ice located in Canadian territory, T-3 had been occupied
since 1952 by research teams under the auspices of the US government. At the time of the events,
the ice island was in the high seas. The case was tried by the US justice system, and Canada did not
object. It was not tried from the perspective of sovereignty (over island T-3) but rather jurisdiction
(over the facts). See, e.g.: Baker (2015), pp. 436–440, and Aubry (1975).
98 The acceptance of this reasoning (i.e. the analogy with ships) to fill this legal vacuum does not
prevent some authors from pointing out the appropriateness of a specific legal regime for ice islands;
the differences between the two (ships and ice islands) are too significant for the analogy to be fully
satisfactory. See, e.g.: Pharand (1979) and Joyner (2001), pp. 41–45.
99 Arts 91 (Nationality of ships) and 92 (Status of ships) UNCLOS.
100 Rothwell and Kaye (1994), p. 57: “Beyond the EEZ then the principle of occupation creating
flag-State jurisdiction as applied in Escamilla probably represents the most acceptable solution”.
460
M. Sobrido-Prieto
not fixed, which are the majority, an analogy with ships seems to be imposed,
96 i.e., a
solution in keeping with the treatment of the well-known Escamilla case
97 and the
majority approach in the literature.
98 Although the criterion is occupation, the
approach is not sovereignty-related (territorial claim of the ice islands) but rather
jurisdictional (in relation to the activities that take place on the ice islands). Based on
the notion of the jurisdiction of the flag state (ships),
99 one might talk of the
jurisdiction of the occupying state
100 in relation to unfixed ice islands on the high
seas. This solution is not perfect and does not address all the questions (degree of
occupation required, types of admissible uses, etc.); however, to the extent that the
usefulness of these ice islands arises from their status of floating unfixed
(i.e. moving) and non-permanent (i.e. progressively melting) platforms, for the
time being, the territorial struggle has been averted. New situations or circumstances
could reactivate the debate in the future. This is worth noting here because, from an
environmental perspective, in some marine areas the sea ice is one of the elements to
be granted protection. To this end, the failed proposal of an “OSPAR Arctic Ice High
Seas MPA” will be discussed below (Sect. 3.4).
96 As pointed out in the late 1970s by Pharand (1979, pp. 93–100), given the already important use
of the ice islands for scientific research—and to a lesser extent for the exploration of the CS—it was
advisable to define its legal regime. The author warned that this was a new legal issue for which
there was no conventional regulation (either in the 1958 Conventions or in the then negotiations of
what would ultimately become UNCLOS in 1982), and for which no customary law had yet been
formed through state practice. In light of this legal vacuum, and despite considering that the ideal
solution would be the adoption of a specific international treaty, the author raised the possibility of
the analogy with similar objects for which there was a legal regime (natural islands, artificial islands,
ships), concluding that the most appropriate analogy was that of ships. Since they were not
permanently fixed in one place, ice islands were not comparable to natural or artificial islands; in
that author’s view, they would only be comparable to artificial islands if they were used for the
exploitation of resources of the platform or superjacent waters and were fixed to ensure their
permanent nature.
97 The events took place in 1970 on Ice Island T-3, also known as Fletcher Island, when the
expedition leader (B. Lightsey) was killed by a shot accidentally fired by another member of the
investigation team (MJ Escamilla), both Americans. Although presumably the ice island had
emerged as such when detached from ice located in Canadian territory, T-3 had been occupied
since 1952 by research teams under the auspices of the US government. At the time of the events,
the ice island was in the high seas. The case was tried by the US justice system, and Canada did not
object. It was not tried from the perspective of sovereignty (over island T-3) but rather jurisdiction
(over the facts). See, e.g.: Baker (2015), pp. 436–440, and Aubry (1975).
98 The acceptance of this reasoning (i.e. the analogy with ships) to fill this legal vacuum does not
prevent some authors from pointing out the appropriateness of a specific legal regime for ice islands;
the differences between the two (ships and ice islands) are too significant for the analogy to be fully
satisfactory. See, e.g.: Pharand (1979) and Joyner (2001), pp. 41–45.
99 Arts 91 (Nationality of ships) and 92 (Status of ships) UNCLOS.
100 Rothwell and Kaye (1994), p. 57: “Beyond the EEZ then the principle of occupation creating
flag-State jurisdiction as applied in Escamilla probably represents the most acceptable solution”.
460
M. Sobrido-Prieto