Global warming heats up the American-Canadian relationship: resolving the status of the northwest passage under international law.

• Author: Kim, William Y.

ABSTRACT

Global warming is turning the hypothetical Northwest Passage into a reality. Shipping that utilizes the Northwest Passage can save over 4000 miles in travel, with the attendant economic benefits. However, the legal status of the Northwest Passage, in particular the portion of the Northwest Passage which cuts through the Canadian Arctic Archipelago, remains indeterminate and is a source of contention between the United States and Canada. Canada takes the position that the Northwest Passage is internal Canadian waters, while the United States takes the position that the Northwest Passage constitutes an international strait. While these two positions have strengths and weaknesses, it is likely that the two nations will continue to defer a final resolution of this issue and either continue with the status quo or seek a diplomatic solution.

Introduction

On September 14, 2007, the European Space Agency announced that analysis of satellite imagery showed that the accelerating shrinkage in ice cover had opened up the Northwest Passage, a "short cut between Europe and Asia that had been historically impassable." (2) Using the Northwest Passage had previously been considered commercially impractical due to multi-year pack ice that rendered navigation hazardous or impossible. (3) However, lured by the savings of almost 4000 miles compared to the Panama Canal route, international shipping is already attempting to use the Northwest Passage. (4) These developments inject new tension into the disagreement between the United States and Canada over the status of the Northwest Passage under international law.

Canada takes the position that the Northwest Passage constitutes internal Canadian waters, which gives them broad authority to regulate and restrict maritime traffic through the Northwest Passage. (5) In contrast, the United States takes the position that the Northwest Passage constitutes an international strait, with international shipping having the right of transit passage. (6) While it is currently unlikely that either the United States or Canada would be willing to submit this dispute to an international tribunal, the dispute in the Northwest Passage showcases the difficulty that even closely allied neighbors can face in protecting their own interests under international law.

Part I of this article provides a historical overview of the Northwest Passage and prior disputes between the United States and Canada regarding the Northwest Passage. Part II analyzes the development of international law relevant to the Northwest Passage dispute. Part III analyzes the strengths and weaknesses of the positions held by the United States and Canada. Part IV will conclude by examining the practical limitations on resolving this issue through an international tribunal.

1. The History of the Northwest Passage

   1. Geographical Background

      The Northwest Passage refers to the body of Arctic water that connects the Atlantic and Pacific oceans along the northern coast of North America. (7) It stretches from the Bering Strait in the west, runs along the northern coast of Alaska and Canada, and then weaves through the Canadian Arctic Archipelago until it exits through the Davis Strait and Baffin Bay in the east. (8) Since European colonization of North America began, explorers have sought a usable route around the northern coast of North America. (9) However, arctic weather conditions created insurmountable barriers for early explorers, particularly the multi-year pack ice common in the waterways that did not melt during the summers, but instead built up year after year. (10)

   2. Successful Navigations of the Northwest Passage

      The first successful transit of the Northwest Passage took three years of hard sailing and was completed by Roald Amundson in 1906. (11) In the wake of this accomplishment, the Canadian government made a formal claim to possession of the lands and islands within the Northwest Passage using a "sector" theory of sovereignty. (12) However, this sector claim has never been recognized internationally. (13) While the United States formally protested this sector claim, the practical difficulties of navigating the Northwest Passage meant that no real confrontation between Canada and the United States occurred. (14) It did, however, mark the first time that Canada made the claim that the waters of the Northwest Passage constituted "internal Canadian waters" as well as the first United States rejection of this claim.

      No ship would repeat Amundson's achievement for nearly four decades, until the St. Roch, with Henry Larsen of the Royal Canadian Mounted Police in command, successfully navigated the Northwest Passage. (15) The 1950s marked the first transit of the Northwest Passage by a ship flying the United States flag, when the U.S. Coast Guard cutter Storis successfully transited the Northwest Passage in 1957. (16) Four years later, in 1961 the U.S.S. Seadragon completed the first submarine transit of the Northwest Passage. (17) As the 1960s drew to a close, Exxon sent a specially modified super-tanker, the S.S. Manhattan, through the Northwest Passage in an experiment to test the viability of the Northwest Passage as a commercial shipping route. (18) Although neither Exxon nor the U.S. government sought Canadian permission for this voyage, the Canadian government preemptively granted permission anyways. (19)

      In the wake of the Manhattan's voyage, the Canadian government enacted the Arctic Waters Pollution Prevention Act (AWPPA) in 1970. (20) Although international law at that time did not recognize coastal state rights further than twelve nautical miles from shore, the AWPPA imposed requirements on all shipping within 100 miles of Canada's Arctic shore. (21) Shortly thereafter Canada attempted to propose legislation at the Intergovernmental Maritime Consultative Organization (IMCO) that would have validated the range of the AWPPA. (22) However, this proposal was rejected by the IMCO. (23) Canada's efforts met with greater success in the 1982 UN Convention on the Law of the Sea (UNCLOS) with the adoption of Article 234, which granted coastal states additional rights over ice-covered seas within their Exclusive Economic Zone (EEZ). (24) However, at least one scholar noted that while this gives coastal nations the right to enact environmental legislation protecting the waterways, it fails entirely to address the question of sovereignty over those waterways. (25)

   3. The Voyage of the Polar Sea: The Northwest Passage Dispute Comes to a Head

      The Northwest Passage dispute between Canada and the United States came to a head in 1984, when the U.S. informed Canada that the U.S. Coast Guard icebreaker Polar Sea would utilize the Northwest Passage to sail from Thule, Greenland to its home port of Seattle, Washington. (26) The United States clearly stated that its notification was a courtesy and did not constitute recognition of the Canadian position regarding the Northwest Passage. (27) While Canada was inclined to work with the United States to address logistical concerns regarding the Polar Sea, Canadian public opinion forced Canada to take a more confrontational posture. (28)

      Diplomatic negotiations between the United States and Canada eventually led to the 1988 Agreement on Arctic Cooperation. (29) While neither nation conceded the validity of the other's position regarding the status of the Northwest Passage, the Agreement did specify that the United States would only operate icebreakers within the Northwest Passage with Canadian consent. (30) The Agreement on Arctic Cooperation did not apply to any ships besides icebreakers, and explicitly preserved each nation's original position regarding the Northwest Passage. (31)

   4. Recent Developments in the Northwest Passage

      Since the implementation of the 1988 Agreement on Arctic Cooperation, neither the United States nor Canada has forced a confrontation over the status of the Northwest Passage. However, the European Space Agency's announcement that sea ice in the Northwest Passage had shrunk to the point that the Northwest Passage could be considered open raises the specter of increasing commercial use of the Northwest Passage. (32) An increasing number of commercial vessels, including cruise ships, have utilized the Northwest Passage in the past decade. (33)

      Currently, registration of ships using the Northwest Passage is voluntary under Canadian law, with approximately 98% of shipping complying. (34) In 2008, Canadian Prime Minister announced that Canada would be making registration mandatory. (35) However, Canada has of yet not done so, potentially due to United States' concerns about validating Canada's claims to sovereignty over the Northwest Passage. (36) The increased commercial traffic and Canada's attempt to regulate it makes it increasingly likely that the formal status of the Northwest Passage under international law will become an issue of concern for both the United States and Canada.

2. The Northwest Passage and International Law

   Article 38 of the Statute of the International Court of Justice ("I.C.J.") recognizes three primary sources of international law. (37) First, the I.C.J. recognizes "international conventions," which are usually formulated as treaties, but which could include conventions, protocols, and declarations. Second, the I.C.J. recognizes international customs where those customs are accepted as a general practice required by law. Third, the I.C.J. recognizes the general principles of law recognized by civilized nations. In addition, Article 38 also identifies as a "subsidiary means for the determination of rules of law" prior judicial decisions and the teachings of the publicists. (38)

   1. Treaties Alone Cannot Determine International Law in the Northwest Passage

      With the exception of the previously mentioned Agreement on Arctic Cooperation, there are no treaties concerning the Northwest Passage that bind both the United States and Canada...