The Northwest Passage: A Fear of Precedent?
August 04, 2019
Since the early 1900s, Canada has claimed the Northwest Passage (NWP), a sea route passing through Canada’s Arctic Archipelago, as its own. Despite these historic assertions, Canada’s closest neighbour and ally, the United States, has consistently rejected its claim to the NWP. Instead, the United States asserts that this sea route is an international strait, allowing for free and unencumbered passage. It is clear that Canada’s legal justification for their claim is growing weaker as climate change wreaks havoc on the Arctic, and melting sea ice has attracted strong global actors to the region, further threatening the United States.
A History of the Northwest Passage
The NWP is a waterway in the Arctic that flows through various islands of Nunavut, a territory of Canada. Since the early 1900s, Canadian leaders have asserted that the passage is strictly Canadian internal waters, meaning they would have jurisdiction over what vessels can pass through it. Since Canada’s initial claim over the passage, there have been a couple of controversial uses of the NWP by American vessels. In both 1969 and 1985, US vessels crossed the NWP, which was perceived by Canadians and their media to infringe upon their territorial sovereignty. Despite the Canadian coast guard being aware of both of these vessels crossing the passage, to average Canadians, it was a threatening challenge to Canada’s claim. As such, the Canadian government responded by tightening safety and environmental requirements on shipping in the passage, creating straight baselines around the Canadian Arctic Archipelago, expanding Canada’s territorial sea from 3 to 12 nautical miles, and beginning talks with the United States concerning an Arctic agreement. Eventually in 1988, Canada and the United States agreed to the Arctic Cooperation Agreement, which said that US icebreakers would always seek permission from Canada to navigate the NWP and, in return, Canada would always grant passage. This effectively preserved Canada’s claim to the NWP while the United States remained staunch that it was international waters. In other words, this was an agree-to-disagree agreement.
Canada’s Weakening Legal Claim
Canada’s legal claim to the NWP primarily hinges on the UN Convention for the Law of the Sea (UNCLOS). Article 234 stipulates that coastal states are within their rights to adopt non-discriminatory laws and regulations “for the prevention, reduction, and control of marine pollution from vessels in ice-covered areas” within their exclusive economic zone when such areas are covered by ice for most of the year. Canada has thus been able to impose safety and environmental regulations on vessels using the passage, seen as controversial by countries like the United States, who maintain that Canada holds no unilateral jurisdiction over the area.
However, climate change has both reinvigorated this century-long debate and placed Canada’s justification of sovereignty in jeopardy. Arctic ice has shrunk by an average of 12.8% a decade since 1979, according to NASA. Ice coverage in September 2018 was 42% lower than in 1980. Each of these facts is putting Canada’s dependence on Article 234 in question, as it will not be long before the NWP is no longer covered in ice for most of the year. Given the weakening of Canada’s claim, it seems as if the friendly agreement between them and the United States over the passage is no longer be enough.
Incentives for Control of the Region
Climate change has not only resurfaced a century-long disagreement between Canada and the United States, but it has also turned the relatively secure northern frontier into a hotbed of potential exploitation and conflict. There are both economic and geopolitical incentives to categorize the NWP as an international strait. As mentioned, the NWP being unambiguously an international strait would allow for free passage by international vessels, which would bring two strong positive economic incentives. Firstly, free passage would increase access to the resource-rich Arctic. A Circum-Arctic Resource Appraisal estimated that nearly ¼ of the earth’s undiscovered petroleum (80% of which is offshore) and 15 oil fields are situated on the Canadian Arctic Archipelago. Secondly, consistent and reliable access to the NWP could shorten shipping routes between Asia and the US east coast by 5,000 miles. This could reduce costs in transit fees, time, and, most importantly, fuel consumption. In fact, in 2013, a Danish bulk carrier saved roughly $200,000 and four days by using the NWP. Given these incentives, between 1990 and 2015, traffic through the NWP tripled.
These strong economic incentives have been attracting large global actors to the region, notably China and Russia, and these geostrategic incentives have threatened the United States even further as an Arctic state. In 2013, China became an observer state at the Atlantic Council in 2013 and announced its Polar Silk Road initiative in 2018 to develop shipping routes and infrastructure for international trade. While China has not yet begun militarizing in the region, Russia, an Arctic state, has. Russia largely controls the Northern Sea Route (NSR), across from Canada, and since 2013, Russia has built or updated seven military based on land along the route, organizing advanced radar and missile defense systems. The United States also contests Russia’s claim to the NSR. Notably, the Commandment of the US Coast Guard Admiral P. Zukunft has asserted that the NSR is an international strait and it is open for transit passage. Evidently, the United States is unwilling to allow Russia to expand its territorial sovereignty in an increasingly strategic region. Russia’s increasing economic and military activity in the Arctic, so near to the Arctic state of Alaska, can only be seen as threatening, and thus the United States can allow neither Canada nor Russia to claim these key passages.
The Future of the NWP & Other Contested Straits
Given the United States’ hesitation to accept Russian and Canadian claims to the waterways near their shores, it is unmistakable that the United States fears setting a precedent around the world. In an official note from 1970, the United States claims that “If Canada had the right to claim and exercise exclusive pollution and resources jurisdiction on the high seas, other countries could assert the right to exercise jurisdiction for other purposes, some reasonable and some frivolous, but all equally invalid according to international law.” If the United States, one of the most powerful countries in the world, acquiesces to Canada’s claims, it may create a domino effect by legitimizing sovereignty over other contested passages, such as the Strait of Hormuz, the South China Sea, and the Strait of Malacca. Further, archipelagic states other than Canada, such as Indonesia and the Philippines, could use the Canada’s unilateral control over the NWP as justification to also unilaterally restrict international passage through their waters.
Only time will tell whether the United States takes a more active approach to defend the Northwest Passage against unilateral Canadian sovereignty, but given the current strain on the Canada-US relationship, it is entirely possible. If anything’s for certain, it is that the revival of this historic dispute signals that the once strongest bilateral relationship is losing its stamina.
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