By: Signe Veierud Busch
Matter commented on: The Boundary Delimitation Agreement on disputed areas between Canada and Denmark (Greenland)
For almost a Century, Hans Island has been the object of an ongoing sovereignty dispute between Canada and Denmark (Greenland), and since the 1980s the parties have fought a position war, armed with Whisky and Schnapps. On Tuesday 14 June Canada, Denmark and Greenland signed a delimitation agreement settling the long-lasting boundary dispute between Canada and Denmark (Greenland).
The agreement is a package deal, which encompasses a final delimitation between Canada and Denmark (Greenland), delimiting the maritime areas within 200 nautical miles from the baselines in the Lincoln Sea and the Labrador Sea. In addition, the agreement settles the sovereignty dispute over Hans Island in the Kennedy Channel.
An equitable solution
Articles 74 and 83 of the UN Convention on the Law of the Sea (UNCLOS) provide that all States are to seek an equitable solution in the delimitation of maritime areas subject to overlapping claims. The UNCLOS does not provide any further guidance on how the States should proceed in their negotiations towards reaching such solutions.
However, a relatively consistent practice has developed through a considerable body of case law, where a three-stage approach is applied. The first step is to draw a line at an equal distance from the closest points on the coasts of each of the parties. This provisionally drawn equidistance line is the result of an objective, geometric process, and serves as a practical starting point in many delimitation processes. The provisional equidistance line is then adjusted, taking into account relevant circumstances, that call for the adjustment of the provisional equidistance line in order to achieve an equitable result. Finally, the preliminary line is subject to a test of disproportionality, to verify that the adjusted equidistance line does not “lead to an inequitable result by reason of any marked disproportion [for example] between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line” (Maritime Delimitation in the Black Sea (Romania v. Ukraine) (Judgment)  ICJ Rep 61, 103 .
Although the three-stage approach is primarily developed for the settlement of maritime delimitation disputes by the judiciary, it is also frequently used in maritime delimitation negotiations.
The end of the Whisky War
Hans Island is an uninhabited lime-stone island covering 1.3 square kilometres, situated in the Kennedy Channel, within 12 nm from the coast of both Canada and Denmark (Greenland), and is accordingly part of both States’ claims of territorial waters. When Canada and Denmark (Greenland) negotiated their boundaries in 1973, they were unable to agree on the issue of sovereignty over Hans Island. The 1973 agreement accordingly leaves Hans Island out, and explicitly provides in Article 2 (2) that “the dividing line shall be of two series of geodesic lines joining from the following points”, where series A is measured from point No. 114-122, and Series B is measured from point No. 123-127. There is no boundary between point 122 and 123, where Hans Island is located.
The conflict over Hans Island has become known as the “Whisky War” since 1984, when Canadian troops planted a flag on the island, a sign saying “welcome to Canada” and left a bottle of Canadian whisky. When the Danish Minister of Greenland visited the island later the same year, he replaced the Canadian offerings with a Danish flag, a bottle of Danish schnapps and a letter saying “Welcome to the Danish island”. Since then, there have been numerous trips to the island from both parties to replace the other side’s offerings. The humorous undertone aside, the parties have until now not been able to agree who has sovereignty over the Island. The island itself has little economic value, and as the parties’ maritime sones in the Kennedy Channel were agreed upon in 1973, the delimitation of the island itself does not have large consequences for the parties. However, the Kennedy Channel and Hans Island may become more important if global warming makes it possible to establish a sea route from the North Atlantic Ocean to the Arctic Ocean west of Greenland.
The delimitation agreement solves the Hans Island Sovereignty dispute, dividing the island between Canada and Denmark (Greenland). The considerations discussed by the parties are not known to the public. The agreed border does provide some clues, as the limit appears to be drawn along the natural ridges on Hans Island. This delimitation method is familiar both from the law of the sea and from other land demarcation.
79 000 square kilometres of overlapping entitlements in the Labrador Sea
In addition to achieving a final solution for Hans Island, Canada and Denmark (Greenland) have also concluded the remaining of the unresolved maritime boundaries between the two States, including the geographical areas southwest and northwest of Greenland.
UNCLOS Article 57 provides a right for coastal states to establish an exclusive economic zone in an area up to 200 nautical miles measured from the coastal baseline. In addition, coastal states’ entitlement to the continental shelf may continue beyond 200 nm if the continental margin continues beyond such distance (Article 76). The Labrador Sea is an arm of the North Atlantic Ocean between the Labrador Peninsula and Greenland, where the entitlements provided by the UNCLOS resulted in an 79 000 square kilometres area of overlapping claims of Canada and Denmark (Greenland), which is now delimited between the parties.
The parties have not disclosed the rationale behind the negotiated delimitation line in the Labrador Sea, but a close study of the official map suggests that the delimitation is based on an equidistance line, with some minor adjustments taking into account relevant circumstances. The parties accordingly seem to have based their negotiation on the recognized three-stage approach, as a means to achieve an equitable solution as provided in UNCLOS articles 74 and 83.
Indicating a direction for the future delimitation of the Central Arctic Ocean
The parties have also succeeded in establishing a common delimitation line in the Lincoln Sea, a body of water in the Arctic Ocean. The limit is based on a preliminary boundary agreement from 2012, and has finally been provided a permanent status in the 2022 maritime delimitation agreement between Canada and Denmark (Greenland).
In the Lincoln Sea, the parties have apparently confined themselves to applying an objective approach to establish an equidistance line between themselves. This sends a very important political signal, indicating that both Canada and Denmark (Greenland) most likely will argue for the application of an equidistance approach also further north, in the Arctic Ocean, where the Danish and the Canadian continental shelf both allegedly overlap with areas subject to Russian claim of entitlement.
The geopolitical side-effects of the delimitation agreement
The agreement dividing Hans Island and the delimitation of the disputed maritime areas are not only of symbolic value, but also of great practical significance for the parties. The negotiated agreement is of particular importance for the Inuit settlement of Ausuittuq in Canada and the Greenlandic settlement of Qaanaaq, and contributes to laying the foundations for a closer and broader cooperation between Canada and Greenland. The ambition of future cooperation and mobility between the States is explicitly included in the agreement. The delimitation comes shortly after Canada, Denmark and five other Arctic states announced their intent to resume Arctic cooperation in projects that do not involve Russian participation. At a time when the international legal order is under severe pressure, and there is an increasing concern relating to the extent to which States will comply with their obligations under international law, the delimitation agreement between Canada and Denmark (Greenland) demonstrates that the Arctic states have a strong will and commitment to follow up their obligations under the Law of the Sea and the Ilulissat Declaration of 2008.