Tag Archives: United States

Donald R. Rothwell, Arctic Ocean Shipping: Navigation, Security and Sovereignty in the North American Arctic (Leiden: Brill, 2018)

The significance of Arctic shipping has long been underestimated because of difficulties associated with navigating through the hostile Arctic environment. This is bound to change for two reasons. Technological advances are giving ships greater capacity to operate in ice-covered waters. Moreover, the reduction of sea-ice is becoming less of a barrier because the hard multi-year ice gives way to thinner first-year ice as a result of climate change. These changes are creating new shipping routes through the Arctic via the Northeast or Northwest Passages and potentially through the central Arctic Ocean via the Bering Strait and the Denmark or Fram Straits. These emerging routes are up to 5,000 nautical miles shorter than alternative routes through the Panama Canal, which explains the growing interest in trans-Arctic shipping and relevant international law.

Arctic Ocean Shipping is a very well written book on important, contemporary, legal and geopolitical issues. It touches upon issues of security and sovereignty but it focuses primarily on rights and obligations relating to navigation in the North American Arctic, and on two state actors, Canada and the United States. Issues are analysed with reference to the United Nations Convention on the Law of the Sea and other relevant legal instruments.

Arctic Ocean Shipping is logically structured and divided into five sections, beginning with an introduction. Section II provides an overview of the “Arctic Ocean Legal Regime”, discussing the applicable international law, sovereignty, shipping, the “Regime of International Straits” and “Arctic Governance”. This includes a particularly interesting analysis of the special considerations concerning sovereignty in the polar regions and suggests that stricter standards of effective occupation might be applied to territorial claims in the Twenty-First Century, due to increased accessibility.

Section III, entitled “Arctic Navigation”, is very intriguing. It deals with “Arctic Navigation Routes”, the “Northwest Passage”, “Bering Strait”, “Arctic Straits and Trans-Arctic Shipping”, “Navigational Rights within the EEZ and High Seas” and “Canadian and US Arctic Rights and Interests”. This section provides an excellent account of navigational routes through the Arctic and their legal status. The rights, interests and policies of Canada and the US are thoroughly explained, with an emphasis on the Northwest Passage and the Bering Strait. Rothwell addresses a contentious issue in a particularly interesting chapter on “The Northwest Passage as an International Strait” where he explains the different positions of Canada and the US concerning the functional requirement of international straits. Reliance upon recorded number of transits would suggest that the Northwest Passage should not qualify as an international strait but a contemporaneous assessment of potential usage suggests the opposite. Recent transits of US vessels through the passage have been subject to an agreement with Canada, making them consensual rather than an exercise of the right of transit passage. This essentially allows the states to peacefully operate without resolving the disagreement. Rothwell does not definitively answer the question, whether emerging routes can qualify as international straits on the basis of potential use. It is an important question which should be relevant for the classification of other routes, such as the Nares strait. However, it will take further usage and involvement of other states to give an unequivocal answer.

Section IV is entitled “Arctic Maritime Security” and it deals with different aspects of “Post 9/11 Global Security Concerns”. This includes chapters on “Terrorism and Counter-Terrorism”, “Port Security”, “Safety of Navigation” and “Maritime Search and Rescue”. The point of this final section is to provide additional context for understanding Arctic policies of Canada and the US. There is not a lot of literature on maritime security in the Arctic so this is a timely contribution. The section gives an overview of the applicable legal instruments but does not consider particular issues in any detail. The monograph ends with “Concluding Remarks” in section V.

Arctic Ocean Shipping is well organised and well written by an exceptionally competent scholar. Yet, two points of criticism will be raised. First, it might have been relevant to include more information on the positions of other states and related issues in the Russian and Scandinavian Arctic for further context and deeper analysis. Second, issues of Arctic sovereignty arguably deserved further attention, given the title of the monograph. For example, it would have been interesting to learn more about the ongoing sovereignty dispute between Denmark and Canada in the Nares Strait.

In conclusion, Arctic Ocean Shipping is strongly recommended. It thoroughly explains the main issues concerning trans-Arctic shipping and does so in an accessible manner. The monograph provides an extensive and very useful overview of the field and is a welcome addition to the literature. The chapter on “Arctic Navigation” is particularly well written and it intriguingly sheds light on ongoing developments and contentious issues. The book is indispensable for lawyers involved with trans-Arctic shipping. Furthermore, it is relevant for all those interested in public international law and the Arctic, or navigational rights generally, and it is recommended for students, academics and practitioners alike.

Dogancan Özsel (ed.), Reflections on Conservatism (Newcastle: Cambridge Scholars Publishing, 2011)

Against that revolution Edmund Burke wrote his Reflections that are taken by several of the authors in this collection to the origin of conservative thought. Burke emotionally abhorred the practices of the revolutionaries but, more theoretically, he abhorred the very idea of the attempt “to obliterate their former selves.” Underlying the Reflections are the convictions: that one ought not break with the past in the way that the revolutionaries of 1789 intended; and, perhaps less clearly, that one could not break with the past in that way. Tocqueville continues: “I have always felt that they were far less successful in this curious attempt than is generally supposed in other countries and than they themselves at first believed”. In other writings, e.g. on taxation in America, on the East India Company, on slavery… Burke clearly did not suggest that traditional practices and ideas were necessarily good and to be retained. He opposed neither liberty nor change. What he opposed was the revolutionary idea that it was imperative to break utterly with the past before the radically new and perfect invented future could be imposed from above. “The conservative emphasis on the importance of tradition and established order, which entails mutual obligations and duties for all [is] … opposed to that illegitimate order which is simply established by violence and comes with no obligations on the part of its rulers ..”.(Andreasson, 100) supposes not merely tradition but good tradition. It is as purblind to suppose the past to have been entirely bad as to expect a newly invented order to be entirely good. A tradition is the ambiguous fruit of greed and power and of many good ideas and practices that have stood the test of time. To winnow the wheat from the chaff, to distinguish the good from the bad, to discover what ought now to be done or not done are the unavoidable and enduring elements of argument.

Conservatism is not as clear as revolution. Hence Levante Nagy, in the first essay in Reflections, thinks of it as an “essentially contested concept”. Different people use the same term differently, such that if someone claims to be a conservative the listener does not yet know what precisely is claimed. That this is so is borne out in several valuable essays that examine the conservative tradition in different countries. Gergely Egedy writes of “The [Patrician] Conservatism of Jósef Antall” in Hungary, Kasper Støvring of “Cultural Conservative Traditions in Postwar Denmark”, Dogancan Özsel, Hilal Onur ?nce and Aysun Yarali of “New Trends in the Political Discourse of the Turkish Military: Marching towards Radical Conservatism?”, Agnès Alexandre-Collier of Sarkozy’s

UMP, Peter Dorey of “A Conservative ‘Third Way’ …” in the United Kingdom after Thatcher and William Miller of “Current Trends in Conservatism in the United States”.

In Turkey, the radical conservatism of the military that would preserve what Ataturk established in a fairly recent revolution (239 but passim) is far removed from the conservative traditions in Denmark, where some “conservative intellectuals are preoccupied with the necessity of a cultural community of common mores and customs, which are interpreted from a national perspective” (282). The Danish traditions are not wholly identical and are unlike the conservatism of Jósef Antall, the first Prime Minister of Hungary after the collapse of communism, who “In keeping with the Burkean traditions of organic change … made it clear that his government would try to implement the necessary and painful changes by ‘relying on our historical heritage’ instead of copying mechanically a foreign model.” (257) (It is worth noticing that to speak of social change as “organic” is to speak metaphorically; see, Rose on Hegel 111-115) In many of the post-communist central European states, initial euphoria at the removal of a crippling lack of freedom was soon tempered by the discovery that the new freedom brought with it new, not entirely welcome, responsibilities, uncertainties, and risks. In the older democracies, when the trauma of the second war had abated, and a welfare state established, the difference between “conservative” and “socialist” parties became far greater in rhetoric than in practice; and, in those democracies where violent (revolutionary) civil strife erupted what drove it was often based more on an image of traditional cultural identity than on a difference between conservatism and socialism although the (conservative) recovery of the past was often expressed in socialist rhetoric.

A great advantage of the collection is that beside studies of the particular countries and states stand theoretical studies and interpretations – Peter Dorey on “The Importance of Inequality in Conservative Thought” concentrating largely, but not exclusively, on contemporary writings in English and on the United Kingdom; David Rose on the influence of Hegel; Stefan Andreasson’s “On the Nature of Anglophone Conservatism and its Applicability to the Analysis of Postcolonial Politics” and John Varty on Adam Fergusson.

Giorgio Baruchello’s “What is to be Considered? An Appraisal of the Value of Conservatism in the light of the Life Ground.” discusses the contemporary Canadian environmentalist John McMurtry and Gerard Casey’s “Conservatism and Libertarianism: Friends or Foes?” Both are concerned with values, that is, with what is to be conserved or brought about. The values they discuss are neither the same nor necessarily wholly incompatible. “McMurtry’s life ground entails that a good economic system: (1) must secure the provision of vital goods for as many citizens – ideally all of them – for as long a time as possible – sustainability being no short-term goal; and (2) it must generate the conditions for a fuller enjoyment of life along the same spatio-temporal coordinates.” (Baruchello, 309) Someone who thinks of himself as a conservative might very well agree with that ideal – or might not – but to think of it as a specifically conservative ideal is to give yet one further twist to the meaning of that essentially contested concept. A particular libertarian might well accept the ideal, but qua libertarian will ask how it is to be achieved, for the libertarian qua libertarian concentrates on the value of freedom over against coercion, particulary state coercion.

The freedom valued by the libertarian is not unfettered; it is freedom from coercion, particularly state coercion, to do or not do what does not damage another. The libertarian rule: “do not agress against another” is, in fact, the second of Ulpian’s precepts of justice: “hurt no-one” (Justinian Institutes I.I.3 Digest It does not follow from the injunction to love of one’s neighbour – which is to an extent the positive expression of “hurt no-one” – that people ought to be coerced into doing so. The basic libertarian value is the repudiation of coercion when the intended action does not harm another. The repudiation of coercion is the fundamental libertarian value but libertarians must have others also and two libertarians may well have different values: “One more or less certain way for to prevent its [libertarianism’s] collapse into libertinism is for it to adopt the cultural core values of conservatism [once one has determined what those values are and found them to be good] and this libertarians are free to do. Conservatism, on the other hand, is always at the mercy of the questions – whose tradition? Which customs? What habits?” (Casey p.53) Every human is born and educated into a tradition, which it is wise to examine and to keep what one finds good, unwise unthinkingly to try wholly to abandon, and unwise blindly to accept in all it details. That having been said, the basic moral question remains: what am I to do in the world in which I find myself?