International security and international law in the Northwest Passage.

• Author: Kraska, James

ABSTRACT

Concern over the loss of sea ice has renewed discussions over the legal status of the Arctic and subarctic transcontinental maritime route connecting the Atlantic and Pacific Oceans, referred to as the "Northwest Passage." Over the past thirty years, Canada has maintained that the waters of the Passage are some combination of internal waters or territorial seas. Applying the rules of international law, as reflected in the 1982 United Nations Law of the Sea Convention, suggests that the Passage is a strait used for international navigation. Expressing concerns over maritime safety and security, recognition of northern sovereignty, and protection of the fragile Arctic environment, Ottawa has sought to exercise greater authority over the Passage. This Article suggests that Canada can best achieve widespread global support for managing its maritime Arctic by acknowledging that the Passage constitutes an international strait and working through the International Maritime Organization to develop a comprehensive package of internationally accepted regulations.

TABLE OF CONTENTS I. THE STRATEGIC VISTA OF THE ARCTIC A. War in the Arctic? II. ARCTIC COMPETITION A. Factors Driving Tension B. Russia: Responsible or Revanchist? C. Canada: Progressive or Paranoid? III. THE NORTHWEST PASSAGE A. Law of the Sea IV. CONCLUSION: OTTAWA SHOULD LEVERAGE THE INTERNATIONAL MARITIME ORGANIZATION I. THE STRATEGIC VISTA OF THE ARCTIC

Seventy percent of the globe is covered by the single, interconnected "world ocean." (1) Eighty percent of the world's population lives within 200 miles of a coastline. (2) Ninety percent of international trade travels by sea. (3) Much of the commerce, many of the people and resources, and much of the conflict on the planet occurs in the coastal zone. (4) Consequently, the diplomatic and legal framework for ocean governance is of direct concern to the maintenance of a stable world system. These figures are especially compelling for the states of North America, which are connected to the world primarily by the Atlantic and Pacific Oceans.

The harsh climate of the High North and the ice cap over the Arctic Ocean has deterred most transcontinental traffic from using the northern waters as an approach into the shores of Canada and the United States. (5)

While three vast oceans--the Pacific, Atlantic, and Arctic--have shielded North America in the past, in recent decades globalization has brought increasing numbers and diversity of shipping into Atlantic and Pacific ports. (6) Climate change may transform the Arctic Ocean into yet a third waterway for transcontinental traffic into North America. The result is that the northern tier will become open to the benefits and exposed to the potential costs of worldwide commerce. The greatest impact to date of the prospect of increased shipping in the North American Arctic has been the disruption of Canada's sense of security.

Over the past thirty years, the annual average sea-ice extent has decreased about eight percent, or nearly one million square kilometers--an area larger than all of Norway, Sweden, and Denmark combined. The extent of sea ice has declined more dramatically in summer than the annual average, with the loss amounting to 15-20 percent of late-summer ice coverage. Moreover, a consensus is building that the melting trend is accelerating, as Arctic temperatures have increased over the last few decades. Winter temperatures in Alaska and Western Canada, for example, are 3-4[degrees]C higher over the past fifty-years, and there is an expectation that larger increases will be projected. (7) The five Global Climate Models (GCMs) utilized in the Arctic Climate Impact Assessment (ACIA) project a decline in winter maximum extent ice over the next 100 years. (8) Scientists believe these changes are one major reason for dramatic environmental events, such as the recent detachment of a sixty-six-square-kilometer giant ice shelf from Ellesmere Island, which is located about 800 kilometers from the North Pole. (9)

1. War in the Arctic?

   Coupled with other environmental stress, such as illegal fishing, overfishing, and pollution, there is concern that the trends in Arctic climate change may "overwhelm the adaptive capacity" of some Arctic ecosystems and reduce or even eliminate populations of living resources. (10) The security implications of these changes could be enormous.

   The New York Times suggests that Arctic waters are an emerging arena of international competition in a High North version of the "Great Game." (11) New Arctic maritime claims, maritime boundary disputes, and international competition over the resources of the Arctic Ocean exacerbate the unease precipitated by the prospect of increased international shipping. (12) These trends led Scott Borgerson to warn in Foreign Affairs last year of an impending "Arctic meltdown" generating conflict in the region. (13) Meanwhile, the European Commission suggests that changes in the Arctic physical environment are altering the geostrategic dynamics of the region and will affect global security. (14)

   Climate change is transforming the security dynamic in the Arctic, but does the future hold a stable and cooperative Arctic order or a competitive and volatile Arctic anarchy? The United States has been the voice of reason, and Washington has the power to shape the future. Yet those concerned about the potential for Arctic conflict suggest that climate change threatens to upend international stability or even drag nations into war. We have, after all, been here before.

   The seventeenth century faced upheaval and adversity on a monumental scale: in China, the Ming dynasty suffered a violent collapse; the Ottoman Empire was engaged in a bitter struggle with the Holy League; and the Dutch Revolt pried the Low Countries from the Spanish Empire. (15) The Thirty Years War dismembered Central Europe, ending in the Peace of Westphalia in 1648 and ushering into existence the modern nation-state. (16) More warfare afflicted the globe during the seventeenth century "Great Crisis" than during any time until the 1940s. (17) New climate data archives have begun to confirm what Voltaire explained to his mistress Madame du Chatelet in the 1740s: "The 'period of usurpations almost from one end of the world to the other' ... were the result of government, religion and 'le climat." (18) The planet had cooled in the Little Ice Age, which froze Chesapeake Bay; chilled Alexandria, Egypt; and killed rice crops in Japan and wheat in Portugal. (19) These climate changes caused widespread famine that descended into anarchy, triggering riots and chaos throughout the world. (20)

   The United States is more circumspect about the prospects of impending Arctic warfare. The Cooperative Strategy for 21st Century Sea Power, which was signed by the service chiefs of the Navy, Marine Corps, and Coast Guard in 2007, suggests,

   Climate change is gradually opening up the waters of the Arctic, not only to new resource development, but also to new shipping routes that may reshape the global transport system. While these developments offer opportunities for growth, they are potential sources of competition and conflict for access and natural resources. (21) II. ARCTIC COMPETITION

   In 2008, the U.S. Geological Survey estimated that the Arctic region holds 13% of the undiscovered oil and 30% of the undiscovered natural gas in the world--figures that do not include potentially vast reserves of methane gas hydrates. (22) Areas of the Beaufort Sea and north of Siberia as well as the waters and seabed of the Sverdrup Basin were identified as probable areas of interest. (23) However, most of the Arctic energy resources are located within coastal states' recognized 200-mile exclusive economic zones, which are not subject to any controversy or likely to incite conflict. (24) The talk of a war over resources is inaccurate--though it is red meat for Canadian and Russian nationalists; it is the prospect for new resources that is driving the competition. (25)

1. Factors Driving Tension

   There are at least five broad factors contributing to rising tension in the Arctic, and all are related to the rich natural resources in the region. The foremost Arctic resource is water--the immense spatial resource of the Arctic Ocean--as a domain of movement for international shipping. Ninety percent of international trade travels by sea, and if the Arctic ice melts, intercontinental tanker and cargo traffic between Europe and Asia will become much more economical. (26)

   Second, high commodity prices and scarce supplies of oil, gas, and minerals mean demand for commodities is tight--even in a depressed global economy. (27) If prosperity returns, commodity prices could skyrocket to feed the global economy.

   Third, we are experiencing a renaissance in technology for operating in the extreme Arctic environment. New technologies make drilling in the extreme conditions of the Arctic Ocean feasible, and new ice-breaker designs make it easier to travel through the ice pack. (28)

   Fourth, climate change is melting the ice, and the Arctic could be ice-free during the summer within a few years. (29) While this trend increases access to the seas, the melting permafrost threatens to disrupt road and rail infrastructure on land.

   Finally, with increased activity and greater numbers of ships come potential new threats to homeland security. The attacks of 9/11 altered the perception of port, vessel, and waterway security, galvanizing public attention toward potential maritime vulnerabilities in Alaska. (30)

   Norway, with an economy based on oil and fishing, wants to fence off as much of the water in the Barents Sea and surrounding Svalbard as possible in order to ensure a steady flow of new oil and other resources in the coming years. (31) Oslo seeks international recognition for Norwegian control of the resource-rich waters off Svalbard; responsibility for governing the frozen island...