Northwest Passage is situated along the north coast of United States which is sea route of Arctic Ocean. It also links Atlantic Ocean and Pacific Ocean through Canadian Arctic Archipelago. Different islands of Archipelago are separate from each other and from Canada by Arctic waterways in series, collectively called Northwest Passages. People have searched for the Northwest Passage for centuries for the sea route to connect Atlantic Ocean and Pacific Ocean. Roald Amundsen was the first one who navigated the Northwest Passage as a trade route in 1903
At present time, the scientists believe that the continuation of global warming will result in almost ice-free passage during the summer season within twenty-five years. Consequently, this would open up the sea that remains usually blocked for international shipping. Due to melting ice in Arctic, the Northwest Passage has become more accessible and thus the global conflict to attain control over arctic territory. With the change in environmental conditions of the Arctic, new political issues have emerged for Canada. The major political and legal dispute that arises pertains to the control and ownership of Northwest Passage. As numerous islands of Arctic are owned by Canada and many countries also believe as well, yet there is no agreement over the ownership of water that runs among those islands
The dispute of Northwest Passage is of regional as well as of international nature and the probability also exists that the conflict would soon turn into an alarming crisis. The key players of the dispute are the United States and Canada, yet it is a primary concern for any country that intends to trade through the route of Northwest Passage.
Canada and the United States have common cultures and pleasant diplomatic relationships and both the countries believe in sorting out conflicts through diplomatic channels while the military supervision of the territory is quite impractical and extremely expensive due to peculiar geography of the region. Explicit definition of international and Canadian borders and accessibility to the natural resources of the region are specifically triggering issues in the case
The Canadian government has embarked on the initiative to increase the military expenditure so as to broadly supervise Arctic islands (Archipelago). The joint committee of House of Commons and Senate has suggested altering the defense policy if required in order to control and supervise the Canadian territories, airspace and waters, to defend the land, waters and airspace of Canada and to assist the provincial governments for security and domestic peace
The issue has become intense as less ice has given more access to the potential resources of Northwest Passage like minerals, deep sea, sea routes, etc and shipping companies have also shown greater interest in opting for Northwest Passage as an alternate route
The Arctic ice-pack kept preventing regular marine shipping for almost the whole year until 2009 but climatic change has resulted in reducing pack ice and shrinking of Arctic has made the passage more accessible and navigable. However, the claims contesting for the sovereignty of waters has brought complications for shipping through the Northwest Passage
The United States and other European countries claim that it is an international strait and unencumbered and free passage for shipping and trade is allowed and moreover the natural resources buried under ocean floor are also international like oil, gas and other minerals. On the contrary, Canada claims that Northwest Passage is part of internal waters of Canada; therefore ships passing through the territory must seek permission and obey Canadian laws while United States, Russia and other nations disagree with the claim. Unites States mounted the tension by declaring enhanced selling of oil and gas by allotting leases of exploration and in the response, Canada criticized and renewed pledge to establish an agreement with the U.S. The two countries conducted joint survey and mapped the Beaufort Sea for further negotiations
What is major controversy over the issue? Basically, the conflict arises over whether the claim of Canada for ownership and control over Northwest Passage is acceptable to United States and other countries or not. The claim made by Canadian government is that waters of Northwest Passage, specifically waters of Archipelago and Canadian Arctic are internal to Canada and therefore Canadian government has got right to bar the transit through the waters
On the other hand, maritime nations including countries of European Union and the United States consider Northwest Passage as an international strait where foreign countries have due right to transit passage for shipping and trade. In such case, Canadian government would have the right for enacting laws for regulating environment, fishing, safety and fiscal as well as laws for countering smuggling but it will not have the right to seize the passage
A declaration issued by the Canadian government in 1986 reaffirmed the rights of Canada to the waters. However, the United States had refused that claim of Canada. Though an agreement signed in 1988 had resolved the problem and named agreement as Arctic Cooperation but the issue of sovereignty remained unresolved
According to law of the sea, research is not permissible for the ships that use transit passage and the agreement also states that vessels of US coast guards that are engaged in research would ask for permission from Government of Canada for passing through. Following is the detailed description of claims and arguments of Canada and the United States:
Canada claims its right to control the Northwest Passage due to following arguments:
Sovereignty of Arctic
Canada claims exclusive rights of sovereignty, privileges and authority over the region of Arctic Archipelago and it may enforce the law to regulate activities there. Undoubtedly there is no question about the land territory of Arctic Archipelago as all conflicts regarding land were settled in 1930s.
The rapidly melting ice of Northwest Passage has raised questions about the claim of sovereignty by Canada. The boundary line of maritime between Greenland and Canada in the Davis Strait is relevant to the claim of Canada. Canada believes that conditions of reduced ice due to changing environment will not affect the influence of Canada’s sovereignty claim over the Northwest Passage. The Canadian claim about Arctic region is indivisible and it holds sea, land and ice and it stretches to seaward facing the coasts of islands of Arctic without interruption. The islands are not divided due water among them and they keep joined for most part of the year
The legal position of Canada has been challenged by the United States and the European Union as they do not accept the claim of sovereignty over waters of Arctic Archipelago. Until the conditions for international shipping and economic viability preclude, United States and European Union will not push the challenge further. However with the diminishing ice, Canada will face severe legal issues as the arguments in support of sovereignty are not related to the issue of ice
International Legal Status
A state is fully sovereign under international law to enforce its laws over goods, incidents and persons over its internal waters. Canada claims Northwest Passage to be the part of its internal waters and ships must acquire permission to go through those waters.
Under international law Canada has the right to practice its fiscal, sanitary and immigration laws through authority to seize, search or arrest in the region. The UNCLOS and law of Canada allow the Canadian government to enjoy sovereign rights in Exclusive Economic Zone (EEZ) for managing, conserving and exploring the natural resources like fishing, mining shipping route, etc
The position of European Union and the United States is contrary to the claim of Canada and they believe that Northwest Passage is an international strait. The U.S. does not agree with the argument of Canada that international definition of international strait is not affected due the presence of ice cover
The U.S. also maintains the opinion that ruling of International Court of Justice for Corfu Strait is similarly applicable to that of Northwest Passage. According to the case of Corfu Strait, the court ruled that a water body that links two international bodies of water and which is used for international shipping is to be considered as International Strait which is definitely applicable to Northwest Passage but the number of transit is too less for that matter.
Historical Internal Waters
Canada also claims that Northwest Passage is its historic internal water as it states that these waters were used by Inuit and now by Canada since immemorial times. International Court of Justice ruling on case of fisheries is important supportive argument on the stance as the ruling recognized the title of ‘historic’ to coastal lines and accepted the method that Canada used for measuring the internal waters.
The claim related to internal water as posed to be historical, creates many doubts. Donat Pharand, a leading legal jurist of Canada reveals that the argument of historical internal waters is weak. According to him, the legal status of historical waters has already been demolished in the current years and it is least likely to be supported in any international court
Secondly, it is historically difficult to prove any country’s absolute sovereignty waters since it requires prolonged exclusive control by the state claiming it along with the acquiescence by other countries.
The straight baseline method helps to determine the territorial seas for countries having offshore islands and coastlines by drawing straight lines from one point of a coastal island to another. Then the dots are connected and water inside dotted lines is internal water while the part outside the line is considered as territorial seas
UNCLOS is supportive of Canadian argument and its position to calculate the territorial area by using straight baseline method. Thus Canada gains its oceanic territory by practicing straight baseline method. Canada has persistently affirmed its ownership and control of waters of the Northwest Territories and in 1986 Canada had formally claimed the possession of aquatic region covering more than 16,000 North Canadian islands.
Though United States agrees with Canada that islands which surround Northwest Passage are undoubtedly Canadian territory, yet the U.S. keeps firm stance over the Northwest Passage that it is an international strait
(Donald Rothwell, 1994).
The issue arose while attempting to apply straight baseline method for encircling coastal archipelago is that it neither sea nor land. For waters, the legal jurisprudence is uncertain especially ice clogged remote and arctic waters
There are few legal models that provide support to the position taken by the United States in the case of Northwest Passage which is based upon geography and its use. The geographical condition is fulfilled if it is demonstrated that the Northwest Passage is representing a waterway because waterway is a body that must connect one part of high sea to another.
The argument of U.S. is fulfilled as all the seven channels of passage connect Beaufort Strait (high sea) and the Davis Strait (high sea) and even if 2 channels among all are taken as shallow for commercial usage of cargo. The U.S. has continuously shielded the right of transit passage via international waters, like the U.S. refused to recognize claim of Libya that Gulf of Sidra is completely internal water
Also in 1986 the country deliberately dispatched destroyer Caron and Cruiser Yorkton into deep Black Sea passing through Russian globally accepted 12 mile territorial waters so that it could be proved that states should not create limitations over access of ways to international strait. American stance to develop the right of passage remained dominant when nuclear disaster happened with brinkmanship at times of cold war.
According to Canadian Arctic Resource Committee, the global naval interests of the United States save the US government from surrendering the passage to Canada. America has primarily shied away from making agreements and entangling alliances however it will continue to assert its power to keep influence over channels and straits as a mean to trade around the whole world. Yet the matter is not very simple and Canadian claim cannot be oversight as it holds the land territory and ice territory is not yet defined by the law
Most legal scholars refer to the case of Corfu Strait pleaded in International Court of Justice as an argument to support the position of America in which a very small number of international traffic from maritime constituted sufficient usage for channel of Corfu to be considered as strait.
The traffic passing through Northwest Passage is very little and mostly they are unregulated foreign submarines due to conditions of ice. Yet Donat Pharand, an expert of law of the sea does not agree that the condition is fulfilled to date. He is of opinion that if the passage becomes free form ice then the condition of ‘use’ might be fulfilled which is not quite possible in view of scientists
Another legal argument is in relation to the commerce as a criterion for decision while viewing criterion of ‘usage’, commerce of maritime has got more weight in imputing the Northwest Passage a status of international strait. However the condition has not been met yet and no country has been paying focus on it. It weakens the stance of US because commercial traffic has been to low in the passage due to ice condition.
The international treaty for governing the rights of coastal nations and use of oceans is known as UNCLOS (United Nations Convention of the Law of the Sea) established in 1982. As such this has been the legal source to govern the dispute in the Arctic Region. UNCLOS not only generate customary law of the sea codification but it also provides the mechanism to resolve the dispute of international maritime issues.
UNCLOS was adopted in 1994 and was signed by 158 countries and most of the signatory nations ratified it, thus enabling it to have legitimacy in the global world. Few article of UNCLOS applied to the case are briefly described below:
Article 7: Straight Baselines
· The coastlines which are indented deeply and cut into or if there exists fringe of islands in the instant locality, then the method of straight baseline can be applied by joining the points appropriately to measure the width of sea territory.
· The coastline is too much unstable due natural conditions like presence of delta. The selected appropriate points should be seaward to the extent of low water line and despite regression of subsequent low water line, the straight baseline shall be considered effective unless the change brought by the coastal state under the convention.
· The general direction of the coastline must be kept as guide for drawing the straight baselines. The area of the sea lying within the line must adequately be connected to domain land of the regime of internal waters.
· Low tide elevations must not be considered for drawing the straight baselines to / from except the permanent installations above sea are built like lighthouses, etc or if drawing from or to such elevations have got international recognition generally.
· The concern related to economy of the particular region must also be considered along with the evident long usage, wherever the straight baseline method is applicable under para 1of the article.
· No state has the right to use straight baseline method to cut off the exclusive economic zone or high sea of other state.
Article 8: Internal Waters
· With the exception provided in the Part IV, water of the territorial sea which is landward to the baseline forms internal water of a state.
· The method of setting straight baseline as provided in the Article 7 affects the enclosure areas of internal waters that are not as such considered previously, the Conventions grants right of innocent passage in those waters.
Article 35: Strait Used for International Navigation
Nothing in the part has effect:
· As provided in the Article 7 affects the enclosure areas of internal waters that are not as such considered previously.
· Legal holding of those waters beyond the territory of sea of a state that border the straits as high seas or exclusive economic zone.
· Legal regimes acting in the straits from where the passage is regulated wholly or partially by ‘long standing international conventions’ particularly in relevance to such straits.
Article 37: Transit Passage
The section is specifically relevant to the straits that are functional for global navigation between one exclusive economic zone to another or from one high sea to another high sea.
Article 234: Ice Covered Areas
States along the coastlines have got the due right to assume and implement unbiased regulations and laws in order to reduce, prevent and control the pollution of marine vessels in the areas covered by ice within the scope of exclusive economic zones where obstructions are created due o sever conditions of climate and existence of ice cover throughout the year or if there is exceptional risk to navigation and pollution in the environment of the regions could possible give irreversible disturbance or harm to the eco system.
Such regulations and the laws may have the due observance to protection and navigation and conservation of environment of the region on the basis of finest accessible scientific evidences.
The above mentioned articles of UNCLOS can help to legally sort out the claims made by each nation like Canada’s claim of sovereignty, historic claim and claim of internal waters as well as America’s claim of international strait. Applying these articles will also help to reach any legal conclusion like arbitration or forming a bilateral treaty
The Canadian claim of sovereignty over Northwest Passage has got two legal issues. First is the issue of legitimacy of title consolidation from Inuit; however the issue does not bother the position of Canada as the Article 7.5 of UNCLOS meets the requirement of geographic consolidation.
This article is a conditional rule that demands Article 7.1 of UNCLOS to be fulfilled first. Fringe of islands in immediate vicinity of Canada along the coast is unsubstantiated and hence the Article 7.5 does not apply in the case. Therefore provided the disputed justification of law for straight baseline around Canadian Archipelago, the country needs to find any other provision of global maritime law in order to justify the claim of sovereignty over waters of Archipelago
During 1570s, around 300 years passed until the title had been transferred to Canada in 1880, British explorers had discovered and claimed a greater part of Archipelago of Arctic. Canada had accomplished complete exploration and laid claim to whole Arctic Archipelago since 1880.
Hence, Canada contests the long standing title of Archipelago waters dating over 4 centuries. Though discrete limits of time are not recognized to be dispositive to historic claims of waters, however the International Court of Justice had recognized the historic claim of Norway over the waters of Skajegaard extending over 250 years passed.
The claim of Canada dating over four centuries is found to be consistent with the holding of ICJ in case of Fisheries. But there are few defects in the case of Canada as the claim of British was limited to the masses of land and not the surrounding waters. Thus title of consolidations applies to the land masses only. Canadian claim also finds a physical challenge in the matter of acquiescence to historic claim of waters. While the U.S. claims that approval of outward manifestation as a standard of acquiescence is sufficient.
However, the historic claim would be rendered unnecessary after acceptance of outward manifestation since such claim would not need assertion anymore if affirmative and universal recognition is granted. It is also suggested by legal scholars that analysis of tripartite as articulated in “The Regime of Bays in International” could be used to determine historic claim. Three fundamental requirements need to be fulfilled under the framework:
· Exercising exclusive jurisdiction of state
· Lapse of long time
· Foreign countries acquiescence
The United States showed great protests against the straight baseline method and claimed Northwest Passage to be an international strait as it is the channel that links the 2 high seas used for international navigation, therefore countries should have the right use it as transit passage. Canada will not be able to restrict any shipping by using straight baselines if Northwest Passage is considered as an international strait
Under customary international law, the U.S. cannot demonstrate Northwest Passage as international strait. The decision of Corfu Strait Case by ICJ in 1994 provides the concept of international strait in most formally articulated way. ICJ had rejected the amount of traffic as test and held the decision over geographical criterion as providing linkage between two high seas and the fact relating to its usage for navigation of international ships.
The functional requirement for declaring Northwest Passage as an international strait is still a debatable source, however it meets the geographic requirement as it connects Arctic Ocean and Atlantic Ocean through Barrents Sea and Davis Strait
The argument made by United States is also not made under provisions of UNCLOS but the customary law related to international straits is primarily integrated in the UNCLOS, thus it is important to analyze the claim of America in context of both legal sources. It cannot show Northwest Passage as international strait within the definition of UNCLOS even if the U.S. appeals to the UNCLOS terms
Third part of UNCLOS is completely related to the “Straits Used for International Navigation” and according to Article 37 the concept of international strait is applied to those channels that are functionally used for international steering among exclusive economic zones or high seas. Dual requirements are reflected in the Article 37 for international straits as articulated in the Corfu Strait Case, thus the U.S. needs to keenly depend upon several provisions of UNCLOS in order to establish the navigation freedom over Northwest Passage
Article 35 gives possibility of an appeal that conditionally prevents from drawing straight baselines from changing the rights of navigation of other nations through global straits. If the U.S. demonstrates that it had the due right of navigation before 1985 when Canada drew the straight baselines and at that time United States could the straight baselines to be improper. Thus the U.S. has to significantly depend upon the laws of international straits as of 1985 in order to prove the existence of navigation right over Northwest Passage. Corfu Strait had been the legal standard in 1985 and the voyages of Polar Sea and S.S. Manhattan that took place without prior permission from Canada, to consider Northwest Passage as an international strait like Corfu Channel before 1985 is a weak argument as much as the current international status of Corfu Channel
Profoundly viewing the facts, it seems too ambiguous to clearly fit Canadian Archipelago into internal waters or international strait and it also seems that none of the two countries would be able to succeed in the case. However, ACA had provided a temporary solution to the dispute between Canada and the U.S. in 1988, yet the Northwest Passage is not prepared for probable enhancement in volume of navigation. Hence the need is to define the rights of interested nations in order to create a real and acceptable solution so that the region is environmentally protected when the volume of navigation increases
Many possible solutions exist and it depends upon the willingness of the nations to develop effective and legally articulated regime in the Northwest Passage. One possible way is to opt for a channel established for resolution of disputes like ICJ or ITLOS (International Tribunal for the Law of the Seas). The legal status of the Northwest Passage could be ruled by either adjudication or arbitration so that the governing framework could be established by delineating the rights of contesting nations
An appropriate solution to the resolution of conflict is to form a treaty that would be able to create a comprehensive regime to govern the Northwest Passage and also endeavors to cope with the environmental and economic risks associated with the increased navigation in the channel. The potentially viable option in the case is to develop bilateral treaty between Canada and the United States to improve international cooperation between the partnering states
Bilateral Treaty of US-Canada
Since the two nations are in best position to monitor and regulate the access of Northwest Passage, United States and Canada are the innate choices for leading the treaty. Both Canada and America have been maintaining the marine fleets and have capacity to navigate over the Arctic Water and bear spending of reasonable resources for the purpose. Due to strong diplomatic and economic relationship between the nations, high cooperation would make the policy of Arctic transit more effective
The major hurdle in the way of negotiations of US-Canada bilateral treaty will be the legal regime that both nations will have to combine for enforcing. None of the two countries have conceded its position since the apprehension of foreclosing upon the claim persists, however both the countries agree to protect Arctic environment. One viable option could be to grant Canada the right as of stewardship of the waters of Canadian Archipelago so that it could set the guidelines of navigation compliance through the Northwest Passage under Article 234 provided by UNCLOS and enforce the guidelines with cooperation of the U.S. As the relevant part of Article 234 states: “Coastal states have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climactic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm or irreversible disturbance”.
Necessarily this would not disturb the current status quo and at the same time it would maximize the enforcement and cooperation of such policies. The stewardship program would also restrict Canada from abandoning the passage the same way as of internal waters, thus the regime would resultantly bring enhancement in the enforcing capabilities. In the case of United States, the treaty would allow it managerial role over the waters of Arctic Archipelago along with enhanced rights of navigation as an enforcement of the role
As the possible navigation through the channel of Northwest is nearing, the significance of establishing framework of governance before amount of traffic gets intense is enhancing. While both the nations stand firm by their stance, it is also apprehended that neither regime would be able to sufficiently protect the Arctic from hazard of clogging of increased shipping. In the current scenario, it would be quite imperative if any of the two nations begins to search for probable frameworks of governance beyond its claim. Actually such planning is requirement of Canada as it stands for facing the risk due to its incapability to regulate the traffic by its own when the passage will ultimately open165. While adjudicating the case in any international dispute resolving tribunal, might provide sufficient preliminary place yet it neither would neither provide any regime in the Northwest Passage nor would it be able to gain widespread respect for assuring the safety of environment and the region. Rather both the nations should make consultation with any international organization to form a treaty that would be modeled after Cooperative Mechanism. The economic interests of the United States and Canada should be effectively balanced with the concerns of safety and environment of the Arctic region. Probably a well formulated combination of hard and soft laws under UNCLOS provisions and IMO guidelines can be enforced with the help of cooperative efforts of Canada and the U.S. Though the final provisions hold importance, yet it would be imperative if the nations identify sudden risk of allowing traffic in the passage and decide to begin dialogue in order to establish cooperative framework of governance in the region.
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 E. Franckx, Maritime Claims in the Arctic (Dordrecht: Martinus Nijhoff Publishers, 1993), pp. 71-74
 1951 ICJ rep 116.
 John Honderich, Arctic Imperative: Is Canada Losing the North? (Toronto: Toronto University Press, 1987), p. 47
 Ibid., p. 41
 Donat Pharand, The Northwest Passage Arctic Straits: Volume VII, (Dordrecht: Martinus Nijhoff Publishers, 1984), pp. 120-121.
 Roach and Smith, p. 340
 UNCLOS, supra note 24, at Preamble
 id. at Part XV (″Settlement of Disputes″).
 Perry, supra note 88, at 668
 Fisheries (U.K. v. Nor.), 1951 I.C.J. 116, 128 (Dec. 18) (″The Norwegian government has relied upon a historic title clearly referable to the waters of Lopphavet, namely, the exclusive privilege to fish and hunt whales granted at the end of the 17th Century.″)
 Pharand, supra note 49, at 10 (noting that he, the author, was disappointed to discover that the British ″takings of possession were unquestionably confined to land″)
 Byers, supra note 26, at 1155-6
 Leo J. Bouchez, The Regime of Bays in International Law, 218 (Leyden & Sijthoff eds, 1976)
 Id. (″Historic waters are waters over which the coastal State, contrary to the generally applicable rules of international law,
clearly, effectively, continuously, and over a substantial period of time, exercises sovereign rights with the acquiescence of the community of states.″)
 Part III.B for a definition of ″transit passage.″
 Corfu Channel (U.K. v. Alb.), 149 I.C.J. 4, 28 (April 9)
 Id. at 28
 UNCLOS, supra note 24, art. 37
 Id. at art. 35, para. a.
 http://www.state.gov/secretary/ rm/2010/03/139207.htm
 Article 234 closely resembles APWAA.
 Mike Perry, Rights of Passage: Canadian Sovereignty and International Law in the Arctic, 74 U. Det. Mercy L. Rev. 657, 671-3 (1996-7)