The Northwest Passage and Canadian Arctic Sovereignty

ABSTRACT

This paper discusses the right of passage through the disputed Northwest Passage within the Canadian Archipelago. Varying claims made by the international community are analysed with a heavy focus on Canada and the United States. Furthermore, differing resolutions to the issues involved are compared in an attempt to come to a solution beneficial to all parties. The intention of this paper is to draw a conclusion as to which claims are valid in accordance with international law, establish an accurate definition of national sovereignty, and apply these findings to the various claims put forth. Continued Canadian strategies to solidify claims and the natural environment of the Arctic are also discussed.

THE NORTHWEST PASSAGE

AND CANADIAN ARCTIC SOVEREIGNTY

INTRODUCTION

The nations of Canada, Denmark, Norway, Sweden, the Russian Federation, the United States, and the governmental body of the European Union have a common territorial dispute as they each have varying claims with regard to ownership and right of passage throughout the Arctic Ocean and its neighbouring coasts (See Appendix A). As they are all Arctic nations, with exception to the European Union, they share coastlines with the Arctic Ocean. All political bodies have vested interest in securing their land and coastal waters which surround them.

The Arctic Ocean is largely unnavigable by sea due to the polar ice cap, the satellite of ice covering a large portion of the Arctic Ocean on a continuous basis. That region has extreme cold temperatures and a relatively low and sparsely populated coastline. Meanwhile, twenty-five percent of the world’s extractable oil and natural gas supply are estimated to exist there. In 2008, the U.S. Geological Survey released a report which claimed that there is a potential “90 billion barrels of undiscovered, technically recoverable oil, 1,670 trillion cubic feet [47 trillion cubic metres] of technically recoverable natural gas, and 44 billion barrels of technically recoverable natural gas liquids in 25 geologically defined areas thought to have potential for petroleum” (U.S. Department of the Interior, 2008). To put that in perspective, it is a greater supply than the current leading nation, holding the most extractable oil and gas, Saudi Arabia. Certainly, developers and many nations worldwide are interested in capitalizing on natural resources to be found in the Arctic Circle. However, the current environment and available technology in the Arctic Circle does not allow for the easy extraction of resources.

The polar ice cap is one of the major impediments for nations when attempting sea travel through this region. Sea vessels in the Arctic Ocean, as of 2011, are commonly used for scientific, search and rescue, and military operations. Transportation in this ocean for the purpose of travel, tourism, and trade are not common, however, many believe that with the continued melting of the polar ice cap, Earth could see the opening of a new navigable ocean. The National Snow and Ice Data Center (NSIDC, 2007) reported that the polar ice cap decreased in size by approximately 72,000 square kilometres per year between 1979 and 2007. This trend is expected to continue in the foreseeable future. With this estimate, nations surely need to define their northern boundaries within the rule of international law and come to a compromise that benefits all parties with valid claims.

The Northwest Passage is of particular importance as it is a series of waterways within the Canadian Archipelago and is currently the largest geographically disputed area. Found within the Arctic Circle, the Passage connects the Atlantic Ocean with the Pacific Ocean [See Appendix B]. Although it is almost entirely covered with ice year round, with the decrease of the polar ice cap, it is said to gradually become the most direct route possible for sea travel between Europe and Asia. This also holds true for eastern and western North America. To illustrate this further, by using the Passage, a shipment from New Jersey to Shanghai would be decreased in distance by approximately 7000 kilometres when compared with alternative routes (Byers, 2010). Another scenario shows the same saved transit distance between European and East Asian cities; whether this includes Southeast Asia, Australia and India is debateable and in some instances unlikely. Among other benefits, such as more efficient trade and decreased costs in transportation, a more temperate climate would also allow for easier exploration and extraction of valuable commodities predicted below sea level. However, territorial claims are largely complicated by Canada and the United States. Their positions differ on varying arguments as to whether or not free usage of the Northwest Passage should be allowed by all nations.

Until now, ships wishing to sail between Western Europe and East Asia need to pass through the Panama or Suez Canals (See Appendix C). Large ships, such as super tankers, need to travel around the southern tips of South America or Africa to reach the same ports. Upon a receded polar ice cap, a navigable route through the Northwest Passage would be considerably more direct. Consequently, this would cut transportation time, cost, and fuel significantly. As a by-product, this route would certainly bring economic and social development to the coastal regions in which it passes. However, it also poses a great threat to the local environment, its people, and wildlife. Furthermore, the conflicting views of right of passage between Canada, Russia and the United States continue to produce a stalemate in terms of coming to a resolution.

Canada has long claimed that the waters within the Canadian Archipelago are internal waters; therefore any nation wishing to pass through the Northwest Passage must ask consent from the Government of Canada. However some countries, particularly the United States, reject this claim as its government argues the Northwest Passage is an international strait and therefore should be allowed free travel by all nations. In the United States’ view, it is a strait that provides convenience to the world and therefore should be allowed free usage by any party in which wants to traverse it. The issue then arises as to which nation or organization would take responsibility for any damage caused to the local population, wildlife, and environment in the event of such things as an oil spill, aviation disaster or attack. Canada disputes arguments made by the United States, saying that usage without consent by foreign vessels within the Canadian Archipelago is a violation of its federal law. The United Nations shows supporting and defeating arguments toward both nations; as a result, a constructive and cooperative agreement between all parties has not come to fruition.

As Canada and the United States presently share the largest trade agreement and longest undefended border in the world, the two nations demonstrate a unique alliance. Both nations have a lot in common culturally, philosophically, environmentally, socially, and economically. As they also share information on a generous and continuous basis, a future resolution over the state of the Northwest Passage is likely to be a form of compromise. Military intervention between the two nations is highly unlikely due to the two nations’ history and memberships in such organizations as NATO and NORAD, which further solidify their alliance.

Similarly to the relationship between Canada and the United States, Canada and Russia also show little reason for this dispute to escalate to military intervention. In fact, when it comes to the Northwest Passage, Russia seems to agree with Canada’s claim that the Northwest Passage is within internal Canadian waters. Since Canada and Russia share the longest northern coasts with the Arctic Ocean, both countries share similar dilemmas.

Upon a receded polar ice cap, Russia too could see a more navigable waterway along its northern coast - allowing vessels easier transportation through the Northeast Passage. However, other regions of the Arctic may become a dispute between these two nations, and if these conflicts were to escalate, Russia could become more unwilling to support Canada’s claims. One case in point is that of the Russian submarine, which planted its country’s flag on the seabed at the North Pole in 2007. Canada’s government was highly critical of Russia’s actions and subsequently rejected Russia’s territorial claim there. Former Canadian Minister of Foreign Affairs Peter MacKay, interviewed by the Canadian Broadcasting Corporation (CBC), stated that “there is no question over Canadian sovereignty in the Arctic. We've made that very clear. We established a long time ago that these are Canadian waters and this is Canadian property. You can't go around the world these days dropping a flag somewhere, this isn't the 14th or 15th century” (CBC News, 2007).

This research report will examine the Northwest Passage’s contemporary history and the varying claims put forth by Canada and opposing members of the international community. Its intention is to determine whether Canada’s claims to the Passage are valid and to draw a conclusion as to how cooperation between the differing parties would result in a peaceful resolution. Furthermore, it will discuss the grounds of Canada’s claims according to international law and how these claims can be supported by the United Nations.

Limitations

This paper is limited to analysis of previous works completed and no further quantitative evaluations are possible. Furthermore, much of the international law discussed is open to interpretation and in some cases contradictory. Many arguments and claims analyzed are also subjective and differ between viewpoints of varying parties greatly. There are also conflicting viewpoints in regard to the urgency of the Northwest Passage dispute’s resolution, which in some instances creates an unnecessary call to action or leaves the reader under the impression that this issue is not pressing and should be given less immediate action.

Definitions

AWPPA - The Arctic Waters Pollution Prevention Act

Exclusive economic zone - The area of coastal marine waters of a nation which fall within that nation’s continental shelf.

NSIDC - National Snow and Ice Data Center

Super tanker - A large sea vessel used for transportation of goods currently unable to transit through the Panama and Suez Canals due to their size.

The Passage - An abbreviated reference to the Northwest Passage; a series of waterways within the Canadian Archipelago that connects the Atlantic Ocean with the Pacific Ocean.

The Territories - Canada’s three Arctic territories: Yukon, the Northwest Territories and Nunavut.

UNCLOS - The United Nations Convention on the Law of the Sea

LITERATURE REVIEW

Canadians have long had a deep-rooted psychological bond with the Arctic as Canada is a northern nation that shows pride in its land and climate. Forty percent of that nation’s total geographical area is above the Arctic Circle; however, until recently the region within the Arctic has been largely ignored. Michael Byers, author and expert in international law and Arctic geo-politics, holds the opinion that an international agreement on the Northwest Passage and other Arctic disputes is the only method in coming to a resolution. Canada’s claims over the Arctic must be solidified through international cooperation and compromise, as well as a strong commitment to social and economic development in Canada’s three Arctic territories. He argues that Canada’s current military development in the Territories is not enough to validate its claims in the international community and therefore must focus on giving more responsibility to peoples who live there. Byers also speaks of the potential security and environmental threats to North America as a consequence of the Northwest Passage being ruled as an international strait. The need for Canada to settle its Arctic claims is pressing and the government must demonstrate its willingness to cooperate with opposing governments. According to Byers, Canada is lagging behind both Russia and the United States in terms of asserting its claims, insisting that more awareness and action is needed by the federal government (Byers, 2010). Although this paper recognizes the importance in developing the Territories socially and economically to strengthen Canada’s claim, it does believe that Canada’s continued military development is also needed.

Franklyn Griffiths (2009) is also an expert on Canadian Arctic sovereignty. He somewhat contradicts Byers although he does fully agree that a peaceful and compromised scenario is both needed and likely to occur. He appears more supportive of the current government as he suggests their Arctic mandate has brought more rigorous claim to those lands. He uses the current government’s establishment of underwater sensors, icebreakers and military training as examples of this.

Griffiths believes that there is a relatively small market for transit through the Northwest Passage as the climate is unpredictable and super tankers are likely to continue their current routes, despite a receding polar ice cap. He admits, however, that a greater influx of other types of vessels is predicted but the pressing nature that Byers describes appears to be an overreaction. Griffiths also believes that a compromise with the United States is of highest importance. Meanwhile, Michael Byers puts a heavier importance on compromise with other Arctic nations such as Russia and Denmark. Furthermore Griffiths suggests the Northwest Passage, an important region to Canada, may not be necessary once the polar ice cap is fully receded. Upon a completely receded polar ice cap, the most direct route from Europe to Asia could be over the North Pole, avoiding the Northwest Passage altogether (Griffiths, 2009). However, Griffiths does not show a great deal of evidence that a completely receded polar ice cap would produce such an event. He also fails to recognize that a fully receded polar ice cap could present other challenges that, in turn, hamper the use of the North Pole as a transit route. However, Byers does not touch on this subject as well.

The Government of Canada and the Department of Foreign Affairs and International Trade are firm with their claim that the waters within the Canadian Archipelago are federal internal waters. According to their position, any foreign vessel which enters Canadian internal waters without consent is subject to trespassing. The Canadian government’s principle Arctic policy is to exercise its sovereignty in the Territories and its waters. Although the government encourages the future use of the Northwest Passage by foreign vessels, it is also concerned with the possible “increase in environmental threats, search and rescue incidents, civil emergencies and potential illegal activities” (Statement on Canada’s Arctic Foreign Policy, 2010).

The Government of Canada’s Northern Strategy was developed to meet the opportunities and challenges created by an opening Arctic. The Northern Strategy includes four pillars of focus: exercising sovereignty; promoting economic and social development; protecting environmental heritage; and improving and devolving Northern governance.

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