From Martin Frobisher in 1576 to John Franklin in 1845, generations of European explorers searched for a navigable route through the Arctic islands to Asia. Their greatest challenge was sea-ice, which has almost always filled the straits, even in summer. Climate change, however, is fundamentally altering the sea-ice conditions: In September 2007, the Northwest Passage was ice-free for the first time in recorded history. This Article reviews the consequences of this development, particularly in terms of the security and environmental risks that would result from international shipping along North America's longest coast. It analyzes the differing positions of Canada and the United States with respect to the legal status of the waterway and argues that the end of the Cold War and the rise of global terrorism have changed the situation in such a way that the Canadian position--that the Northwest Passage constitutes Canadian internal waters subject to the full force of Canadian domestic law--actually coincides with U.S. interests today, as well as the interests of other responsible countries and shipping companies.
TABLE OF CONTENTS I. INTRODUCTION II. CLIMATE CHANGE AND INTERNATIONAL SHIPPING A. Climate Change, Science and Sea-ice B. Why Ships Will Come III THE LEGAL DISPUTE: 1880-1985 A. The Sector Theory B. The SS Manhattan C. Arctic Waters Pollution Prevention Act D. Historic International Waters E. USCGC Polar Sea F. Arctic Cooperation Agreement IV. THE LEGAL DISPUTE: 1986 TO THE PRESENT V. WAS THE NORTHWEST PASSAGE AN INTERNATIONAL STRAIT BEFORE 1986? A. Submarines in the Northwest Passage VI. PROTECTING THE ARCTIC MARINE ENVIRONMENT A. The Need for National Jurisdiction B. Article 234 and International Straits VII. SECURITY CHALLENGES: FROM THE SOVIET UNION TO GLOBAL TERRORISM VIII. CANADA'S ENFORCEMENT CAPABILITY IN THE NORTHWEST PASSAGE IX. DIPLOMATIC OPTIONS X U.S. NAVIGATION INTERESTS A. The Effect of Recognizing Canada's Claim XI. MODEL NEGOTIATION ON NORTHERN WATERS I. INTRODUCTION
"Where has all the ice gone?" Joe Immaroitok asked. (1) It was October 24, 2006, and he was staring at Foxe Basin. A shallow expanse of ocean the size of Lake Superior, the basin usually freezes over by early October, enabling the Inuit to travel across to Baffin Island to hunt caribou. That winter, the town council in Igloolik was considering chartering an airplane to take the hunters across the unfrozen sea. (2)
A few hours before we spoke with Immaroitok, we had sailed through Fury and Hecla Strait on board the CCGS Amundsen, Canada's research icebreaker. All we saw were a few chunks of thick, aquamarine "multiyear" ice--formed when ice survives one or more summers and new ice accretes to it. The chunks, which had floated down from higher latitudes, were easily avoided. The previous day, we had passed through Bellot Strait--the first ship ever to do so in October. We were 350 miles north of the Arctic Circle, but there was no ice.
The two straits are part of the Northwest Passage, the so-called "Arctic Grail." (3) From Martin Frobisher in 1576 to John Franklin in 1845, generations of European explorers searched for a navigable route through the Arctic islands to Asia. (4) Many of them--including Franklin and his men--died in the attempt. (5) Their greatest challenge was sea-ice, which has almost always filled the straits, even in summer. William Parry spent the summers of 1822 and 1823 waiting for the ice to clear from Fury and Hecla Strait. (6) Although the strait is named after his ships, he never made it through. (7) Leopold M'Clintock, dispatched by Lady Franklin to search for her husband on King William Island, tried six times to penetrate Bellot Strait during the summer of 1858 before continuing his journey by dogsled. (8) It took Roald Amundsen three years--including two winters lodged in the ice at Gjoa Harbour--to complete the first full transit of the Northwest Passage in 1906. (9)
In 2004, the Arctic Climate Impact Assessment reported that the average extent of sea-ice cover in summer had declined by 15%-20% over the previous thirty years. (10) The remaining ice was 10%-15% thinner overall and 40% thinner in some areas. (11) These trends were expected to accelerate such that by the end of the twenty-first century, there might be no sea-ice at all in the summer. (12)
Satellite measurements analyzed by the U.S. National Snow and Ice Data Center are even more alarming. (13) In March 2006, the area covered during the winter by sea-ice was at an all-time low: 300,000 square kilometers less than the previous year. (14) At this rate, the Arctic could lose all of its multi-year ice by 2030. (15) In September 2007, the European Space Agency released satellite imagery showing that the ice-covered area in the Arctic had dropped to around 3 million square kilometers, roughly 1 million square kilometers less than the previous minimums recorded in 2005 and 2006. (16) The 2007 ice loss was approximately ten times greater that the average annual reduction over the previous ten years, (17) As Leif Toudal Pedersen of the Danish National Space Centre explained, "It]he strong reduction in just one year certainly raises flags that the ice (in summer) may disappear much sooner than expected and that we urgently need to understand better the processes involved." (18)
The satellite images showed that the Northwest Passage was fully navigable. (19) This remarkable--and remarkably sudden--development is something that policy makers simply cannot ignore. This Article reviews the consequences of the rapidly changing sea-ice conditions in the Northwest Passage, especially in terms of the security and environmental risks that would result from international shipping there. It analyzes the differing positions of Canada and the United States with respect to the legal status of the waterway and considers how those positions might facilitate or hinder efforts to deal with the new security and environmental concerns. The Article argues that the end of the Cold War and the rise of global terrorism have changed the situation in such a way that the Canadian position--that the Northwest Passage constitutes Canadian internal waters subject to the full force of Canadian domestic law--actually coincides with U.S. interests today and the interests of other responsible countries and shipping companies. As a result, the two countries have a unique opportunity--not just to resolve a longstanding dispute but also to cooperate in protecting the security and environment of the continent and planet on which they exist.
We recognize that the United States will not easily be persuaded that Canadian control over the Northwest Passage serves its interests. Consequently, Part XI of this Article sets out a number of intermediate steps--identified through a model negotiation involving teams of U.S. and Canadian non-governmental experts--that the two countries could take to address their common concerns with respect to Northern shipping. These steps, which make sense in-and-of themselves, would build confidence in Canada's commitment to developing the Northwest Passage as a safe and efficient waterway for everyone's benefit.
CLIMATE CHANGE AND INTERNATIONAL SHIPPING
Canada's High Arctic is a vast archipelago made up of about 19,000 islands and countless rocks and reefs. (20) Baffin Island is larger than Britain, (21) while Ellesmere and Victoria Islands are nearly as large. (22) Between the islands lie a number of possible shipping routes connecting the Atlantic and Arctic Oceans (and later the Pacific Ocean), with the widest and deepest route running from Lancaster Sound through Barrow Strait into Viscount Melville Sound and onwards through M'Clure Strait into the Beaufort Sea. (23) A modification of this route diverts southwest from Viscount Melville Sound through the relatively narrow but deep Prince of Wales Strait. (24) Historically, severe ice conditions in M'Clure Strait and Viscount Melville Sound have forced explorers, adventurers, and Coast Guard icebreakers to take a combination of more southerly routes, all of which exit into the Beaufort Sea through Coronation Gulf and Amundsen Gulf, to the south of Victoria and Banks Islands. (25) But history is little guide for what is now happening in the North.
It has long been assumed that these more southerly straits and channels are too narrow, shallow, and subject to strong currents to provide a viable route for larger commercial vessels. (26) However, underwater mapping conducted from the CCGS Amundsen suggests the contrary: With the ice gone, even chokepoints such as Bellot Strait or Fury and Hecla Strait should pose no more of an impediment to navigation that the Bosporus or Dardanelles. (27) From our own anecdotal observations, an experienced navigator could already take a large container ship or tanker through the straits in late summer or early fall. It seems inevitable that the deeper, wider routes further north will eventually open as well, as even M'Clure Strait briefly did in September 2007 and again in September 2008. Once free of ice, these routes could accommodate the largest of oceangoing vessels, including massive supertankers.
At the same time, there are many complicating factors, including the Arctic Oscillation. This circular pattern of atmospheric winds and ocean currents has already pushed the Arctic Ocean's shrinking icepack away from the Russian coast, leaving it seasonally ice-free. (28) On the other side of the Arctic Ocean, the pack remains flush against the northwest flank of the Canadian archipelago, with most of the ice being "multi-year ice," which can be more than twenty feet thick and nearly as hard as concrete due to seasonal accretion of new ice and the gradual leaching out of sea salt. (29)
Climate Change, Science, and Sea-ice
For some time, scientists have differed in their assessments of the likely effects of rising temperatures on ice conditions...