By Shantel Beach
Only a few short weeks ago, a U.S. presidential panel appointed by President Barack Obama proposed that the U.S. ought to play a leading role among Arctic nations to establish international standards regarding various Arctic-related initiatives. Meanwhile, Canada’s National Energy Board is gearing up to undertake a comprehensive review of the existing safety and environmental regulations relating to offshore drilling in the Arctic’s Beaufort Sea. As both countries direct their attention north, it seems only inevitable that the debate over sovereignty in the iciest region of the world is about to heat up. COHA’s forthcoming three part series will investigate the tenets of the Arctic sovereignty issue, and suggest how Canada and the United States can work together to secure their shared strategic interests in a region of rising importance.
PART I: Canada’s Position
Even though Canada and the United States share a long history of cordial bilateral cooperation in trade and foreign affairs, a lasting compromise has never been negotiated regarding the status of the Northwest Passage (a sea route through the Arctic Ocean connecting the Atlantic and Pacific). Despite key common interests in the Arctic, both countries continue to disagree about whether the icy, meandering waters surrounding Canada’s northern archipelago should be considered Canadian territorial waters, or an international strait. As a result of global warming and the discovery of vast oil resources in the region, the Northwest Passage increasingly holds the potential to accommodate commercial shipping year round—a valuable alternative to reliance on the Panama Canal. As the race to secure rights, resources, and strategic positions in the Arctic intensifies, perhaps the most efficacious way for Canada and the U.S. to achieve their respective strategic interests in the Arctic would be to find a bilateral compromise.
First, it is necessary to investigate the claims of both Canada and the United States in order to contextualize the need for compromise on the status of the passage. By highlighting some key issues in the ongoing dispute, it becomes clear that Canada and the United States could each gain more from the Arctic if they worked as partners to promote their common interests. While challenged slightly by the rising power of the Arctic Council—an intergovernmental body consisting of eight countries (Canada, Denmark/Greenland/Faroe Islands, Finland, Iceland, Norway, Sweden, The Russian Federation, and the United States)—there is still enough time to forge a lasting bilateral partnership between Canada and the United States on this issue. Perhaps, through their cooperation, both may stand to gain power and authority within the Arctic Council in the future.
Treading on Thin Ice
The 1969 and 1985 voyages of the U.S. vessels the SS Manhattan and the Polar Sea mark the first diplomatic conflicts between Canada and the United States regarding the use of the Northwest Passage.1 According to Arctic policy expert Rob Huebert, the SS Manhattan’s voyage “created considerable tension between the two countries,” which resulted in Canada’s dispatching one of its icebreakers in order to assert its authority over the area.2 When the U.S. Coast Guard vessel Polar Sea transited the passage 16 years later without Canada’s permission, the issue became more sharply defined as a vanguard for Canadian nationalism. Because Canada emphatically argues that the Northwest Passage completely falls under its flag’s sovereignty, it is paramount to Ottawa that this body of ice and water be considered territorial water under international law. Perhaps best advocated by Canada’s former Secretary of State for External Affairs Joe Clark in 1985, “Canada’s sovereignty in the Arctic is indivisible. It embraces land, sea and ice.”3
Upon looking at a map of the Arctic, one might be tempted to assume that the Northwest Passage naturally falls within Canada’s territorial domain; however, given Canada’s rather weak assertions of its claim to effective control over this territory, the government has experienced difficulty convincing others that the Northwest Passage is under their control.i Throughout the course of history, Canadian policymakers have called upon a growing number of arguments to substantiate their country’s ongoing claim to sovereignty over the northern archipelago.4 From historical title claims to determining straight baselines at low watermarks, the Canadian territorial stake has been substantiated in a number of ways.ii Due to the complex, and at times, possibly dubious nature of these claims, it becomes rather difficult to discern what Canada’s core claim to the Northwest Passage truly is.
Baselines basically determine how areas of the sea are measured through delineating all marine areas seaward of the baseline to be “offshore” and all marine areas landward of the baseline as being “internal waters.” According to Fisheries and Oceans Canada, “the normal baseline is the low-water line along the coast, islands, rocks and even low-tide elevations as marked on large-scale charts officially recognized by the coastal state.” However, in Canada’s case, because the coast is jagged and irregular, “drawing straight baselines joining appropriate points on the coast is an accepted practice.”5 Straight baselines have largely shaped the way in which Ottawa has defined the limits of its territorial waters.
According to international law, as set out by the 1982 United Nations Convention on the Law of the Sea (UNCLOS), most nations recognize that territorial waters constitute a boundary of 12 nautical miles surrounding any country’s coastline. Accordingly, within territorial seas, as defined above, states maintain full control over the water and seabed, with the simple qualification being that other nations have an “innocent right of passage.” Included in these provisions is an important clause noting that all “waters lying inland of the territorial sea” come under the full control of the coastal state and are not subject to the aforementioned “innocent right of passage.”6 What this means essentially is that bays, inlets, harbours, etc., falling within the parameters of a territorial sea can be definitively controlled by the coastal state in question. Although these provisions appear to be relatively straightforward, they are complicated by Canada’s jagged coastline and the fluid relationship between land and ice in the North. As such, in order for Canada to effectively assert its sovereignty over the Northwest Passage, it needs a discernable boundary upon which to stake its claim.
When, in 1985, Canada affirmed that it would employ a method of delineating its sovereign waters using straight baselines (a technique authorized by the International Court of Justice), it caused an incident between Canada and the United States. Directly following this event, a luke-warm Arctic Cooperation Agreement was entered into by Canadian Prime Minister Mulroney and American President Reagan, pledging to deal with Arctic conflicts on a “case-by case” basis. Essentially this document was little more than an agreement to disagree, but it temporarily quelled political frustrations on both sides of the border and remains in effect to this day. Unfortunately this framework has not succeeded at mitigating each of the neighbors’ conflicting claims to control over the Northwest Passage.
As the Ice Melts
Because Canada does not necessarily qualify for increased authority over its island territory as an archipelagic state according to UNCLOS provisions (Article 46),7 its claims by default have relied heavily on other provisions within the document. Article 23, for instance, allows for regulation of marine pollution in ice-covered areas within a country’s exclusive economic zone.iii As such, Canada has framed much of its sovereignty protestations in terms of its self-perceived mandate to legislate environmental protection in ice-covered areas. Drawing on this interpretation, Canada initiated the Arctic Waters Pollution Prevention Act of 1985, which asserted that Canada had jurisdiction over waters 100 miles from the coast in order to prevent pollution.8 According to experts in the field of Arctic policy issues like Donald McRae, this approach has been as unclear as any other. He writes that “a potential difficulty…is a lack of consistency in the way the Canadian government has over the years promoted and advocated the claim.”9
Unfortunately, as the ice melts to expose greater expanses of water, so too does Canada’s claim to sovereignty based on “regulating marine-pollution in ice-covered areas.” Information from the Canadian Ice Service shows that between 1969 and 2004 the amount of ice has decreased by 15 percent in the Eastern part of Canada’s Arctic Archipelago and 36 percent in the Western Arctic.10 As can be seen in the ironic academic work titled, “Canada’s Arctic Sovereignty on Thinning Ice,”11 Canada’s environmental claims are slowly melting away. Ottawa needs a like-minded partner in its quest to protect the Arctic environment, and hopefully it will find it in the United States. In recent years there has been a shift in policy direction toward increasing Canada’s military presence in the northern territories in order to demonstrate effective control over the controversial Northwest Passage. Instead of working toward a comprehensive bilateral agreement with the United States based upon shared environmental concerns, Canada has squarely insisted on exercising unilateral sovereignty over the region instead.
Use It or Lose It
Prime Minister Stephen Harper’s “use it or lose it” approach to the Arctic, first announced in 2007, has redefined the nature of Canada’s sovereignty claim. By increasing its military presence in the region, and emphasizing the Arctic’s high priority on Canada’s foreign affairs docket, Harper has sought to project an increased level of effective control over the area in question. In 2004, and again in 2009, Canada held its largest-ever Arctic military exercises to flex its military muscle.12 In Harper’s own words, “The Government of Canada [must be] able to be anywhere, to respond to anything, if necessary—anything, from foreign incursion to emergency—and that is why we [the Canadian government] have been boosting military defence assets, to ensure we take responsibility for our territory.”13 One argument serving to further bolster the “use it or lose it” claim is that Canada’s northern territories have been effectively occupied for years by the country’s Inuit peoples. According to a senior official with Canada’s Department of Foreign Affairs and International Trade, Canadian indigenous peoples inhabiting the North “in the winter have always treated the ice exactly the same as the land,” and thus have relied on the Northwest Passage as part of their sovereign territory.14 If accepted by the international community, this apparent reality would in effect strengthen Ottawa’s ability to claim effective control over the area.
Canada Stands Alone
Even in light of many strong bids that should substantiate its Arctic sovereignty claim, Canada has been unable to secure significant international support for its strong convictions. According to Rob Huebert, Russia has been the only historical supporter of the Canadian claim, but has rescinded its stance, and now affirms that the Northwest Passage is an international strait.15 If Canada seeks to truly control and protect the Northwest Passage, it needs a partner who can support its claims on the Arctic Council.
While the Arctic issue in Canada has a historical tendency to fade out of focus and then flare up in the eyes of the public, Canada’s primary motivation in asserting sovereignty over the region has remained relatively unchanged. Canada seeks to preserve the fragile Arctic environment for high-minded purposes. Despite expert Franklyn Griffiths’ argument that Canadians have a propensity to “oscillate between alarm and passivity, neither of which lends itself to sustained action,”16 Canada has at least retained a discernable stance in favour of strong environmental regulations to protect its unique northern ecosystem. The memories of past environmental disasters remain vivid in the minds of most Canadians. In 1989, for instance, the single-hulled oil-tanker Exxon Valdez spilled more than 11 million gallons of oil into the Prince William Sound.17 Considered to be one of the largest environmental disasters in the Arctic region, it served to remind both Canadians and Americans alike that accidents happen, and that the consequences are momentous. In light of the more recent environmental disaster in the Gulf of Mexico, it is no wonder that environmental protection of oceanic waters remains a top priority for both countries.
According to Rob Huebert, the Canadian sovereignty question primarily revolves around the issue of “power and control to set rules about how the Arctic will operate.”18 After exploring the U.S. claim, it becomes clear that there is little evidence to show how Canada’s planned approach to assert sovereignty and control the Northwest Passage would be contrary to U.S. interests. According to acclaimed journalist Levon Sevunts, the melting of the Northwest Passage could cut 5,000 nautical miles off the shipping route between European markets and Asia, prompting a large number of ships to seek passage.19 In the context of the Canada-U.S. relationship, high environmental standards ought to be considered a common goal, as an environmental disaster would profoundly affect both countries. If the Northwest Passage were not to be deemed Canadian territory, it would then most likely fall under the jurisdiction of international environmental regulations. According to legal experts Richard D. Parker and Zagros Madjd-Sadjadi, this presents challenges: “the problem arises when regulation differs from enforcement.”20 One may be right to speculate that because of the relative weakness of international enforcement mechanisms, the Canadian government might be better equipped to enforce rules governing the use of the Northwest Passage.
Given the complexity of Canada’s claim to sovereignty over the Northwest Passage, the relative simplicity and nature of the American claim stands in stark contrast. In short, the United States argues that the Northwest Passage is an international strait connecting the Pacific and Atlantic oceans and therefore falls under no one country’s jurisdiction. While simpler, this stance proves to be equally as problematic as the Canadian claim. Part two of this monograph will explore the U.S. position, and delve deeper into the question of Arctic sovereignty.
i. Effective control refers to the principle whereby a country must have a substantial physical presence to claim sovereignty over a physical territory.
ii. Known as “straight baselines”, Canada employed this approach to determine its territorial waters from the outer edge of its coastline to include islands and enclosed waters.
iii. Exclusive economic zones, under UNCLOS provisions, extend to an area of 200 nautical miles from a country’s coastline as referenced by Parker, in “Emerging legal concerns,” 338.
References for this article can be found here.
This analysis was prepared by COHA Research Fellow Shantel Beach