A long time ago on a continent far, far away, dinosaurs roamed the lush green fields. But all things come and pass, and both prehistoric animals and plants were soon sinking into the seafloor as the surrounding continents drifted away and sediment accumulated above—today, they have long since metamorphosed into coal and oil deposits either embedded in the subsea continental shelf or just under the permafrost. [8] Rife with fossil fuels, fishing grounds, and mineral resources, the Arctic is perhaps the last frontier of undiscovered and unextracted riches left on Earth. [7]
It is, then, no surprise that it plays host to eight duelling territorial claims and counter-claims: Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States. [6] Those countries claim airspace, they claim land, they claim sea, and some even claim the seafloor. Of particular note is Canada’s long-standing claim to the Northwest Passage, a series of Arctic waterways running through Northern Canada that connect the Atlantic and Pacific oceans. While Canada asserts our claim and right to regulate the passage by extension, other countries—most notably the United States—vehemently disagree. [2] This article explores why the Canadian claim is justified not only from international law but also a practical utilitarian standpoint.
Even though the Inuit have been living in the Arctic since time immemorial, its first major appearance in recorded history was when the British government sent several expeditions to seek out the fabled Northwest Passage. Among those was the ill-fated Franklin expedition. Undeterred, other explorers set out and eventually discovered viable routes—for some definition of viable. Unlike ignorant predictions of calm and ice-free seas, what they discovered was a maritime hell that only heavy icebreakers could traverse with a healthy dose of luck. [5] Thus, there was originally no dispute. Instead, the issue has only heated up in recent years with climate change reducing the amount of ice in the passage. [2]
As for territorial claims, Canada was the first country to lay claim to a slice of the Arctic through the sector principle in 1925. It allowed Arctic countries to extend their borders all the way to the North Pole, cutting the Arctic circle like a pie. The Canadian government put much stock in this claim over the years, forcibly relocating Inuit families—almost like human flagpoles—and inviting the late Queen Elizabeth II to visit the Arctic. [6] When the United Nations Convention on the Law of the Sea (UNCLOS) was signed in 1982, Canada swapped the sector principle for Article 47. It essentially says that countries with archipelagoes—like Canada with our Arctic islands—can draw a boundary joining “the outermost points of the outermost islands” and designate the contained sea as “internal waters”. It would then receive the same legal status as a lake or river of that country. [4]
That seems reasonable, but there’s another factor at play. The International Court of Justice’s (ICJ) first case in 1947 had led to a decision that countries had a legal obligation to allow passage through straits, even if they were otherwise defined as internal waters. [1]
So what’s a strait? In their ruling, the ICJ concluded that a two-part test with both geographic and functional components was required to determine whether an area of water qualified as a strait. Specifically, they held that a strait had to “connect two parts of the high seas” and be “used for international navigation”. [1] Though the geography is unambiguous, the vagueness of the definition was a major driving force that motivated countries to draft the UNCLOS. Unfortunately, the United Nations (UN) was unable to reach consensus and the final revision of the UNCLOS used the same wording as the original decision. [4]
This uncertainty undoubtedly justifies the Canadian claim. Despite the fact that the passage connects “two parts of the high seas”, few ships have transited it so it is not regularly “used for international navigation”. [2] Even fewer ships, less than can be counted on one hand, have undertaken the journey without approval from the Canadian government. [3] A pragmatic acknowledgement that the Canadian government would need to coordinate search and rescue efforts if needed was no doubt part of this, but one also sees that this was because the international community recognised Canada’s claim. Indeed, why should anyone expect Canada to sail to their rescue if they recognised the Northwest Passage as a strait, and therefore international waters?
The Agreement of Arctic Cooperation in 1988 has calmed tensions thus far between Canada and the United States, which argues that “used for international navigation” also covers potential future use. [1] In other words, they would have the passage declared international waters of its potential use in the future. This appears inconsistent when set against the warm Canada-United States relationship, but more logical with context: Russia similarly justifies their claim to the Northern Sea Route, and a strait would enable cheaper trade with Asia. [3]
Even though Canada’s Northwest Passage claims are on solid legal footing—backed by both the UNCLOS and ICJ, not to mention other countries—there are other reasons for Canada’s control of the passage. That doesn’t stop the United States from threatening Freedom of Navigation Operations (FONOPs), though. Well known because of their use in the South China Sea, it would mean American warships sailing through the passage without prior approval in defiance of Canadian claims. Unfortunately, Canada’s legal options to deal with the situation are limited—the United States Congress has not ratified the UNCLOS, and insists on the illegitimacy of the ICJ. [3]
Nevertheless, Canada’s claim still stands without international law. A major reason for that is the status quo of the passage. As previously hinted at, Canada is, for all intents and purposes, the owner of the passage. We approve or reject vessels that want to transit the passage, sending escorts and breaking ice when necessary. If something goes awry, we coordinate the search and rescue response in and around the passage. If there’s a massive oil spill, we’re the ones who have to foot the bill. [2] Thus, Canada controls the passage now and should retain that control well into the future.
Make no mistake; even though Canada is effectively in control, it’s still important that other countries recognise our legal justification and claim to the passage. This is because the government has been hesitant to further develop or encourage navigation through the passage, fearful that their efforts will be for nought if they lose their claim. [1] A well-placed transoceanic shortcut, the passage has immense potential to increase trade and reduce emissions—and that potential should be developed. Beyond that, a resolution of the issue in accordance with treaties and precedents will also increase global trust in our fragile system of international law. [3]
Climate change may have brought us here by melting ice and opening the passage, but the aforementioned waterway can also serve as a route out of the crisis—from reducing transportation emissions to lightening the strain on marine ecosystems along other shipping routes, the Northwest Passage is a powerful weapon against climate change and the other consequences of human activity [1]. Locally, the development of the passage would also benefit Northern Canadian communities. Despite its legal status currently mired in ambiguity between international treaty articles and court rulings, Canada has the best claim to the passage and should therefore take responsibility for it.
There is no doubt that the Canadian government will encourage navigation through the passage once the regulatory uncertainty is settled, benefiting not only Canada but the entire international community. This goes hand-in-hand with the UN’s much lauded sustainable development goals and should therefore be supported and encouraged by all. [9]
[1] https://harvardlawreview.org/2020/06/the-potential-use-test-and-the-northwest-passage/
[4] https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
[5] https://en.wikipedia.org/wiki/Northwest_Passage
[6] https://en.wikipedia.org/wiki/Territorial_claims_in_the_Arctic
[7] https://www.arcticwwf.org/threats/oil-and-gas/
[8] https://www.un.org/depts/los/clcs_new/submissions_files/can1_84_2019/CDA_ARC_ES_EN_secured.pdf
