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Our Arctic sovereignty is on thin ice
by Michael Byers and Suzanne Lalonde
Our Arctic sovereignty is on thin ice
by Michael Byers and Suzanne Lalonde

August 1, 2005
Climate change has other countries warming to the prospect of encroaching on the Northwest Passage. Canada must act now to freeze them out, say MICHAEL BYERS and SUZANNE LALONDE Twenty years ago this week, the U.S. Coast Guard icebreaker Polar Sea sailed through the Northwest Passage. Washington, which considers the waterway an international strait open to foreign ships without restriction, made a point of not seeking Ottawa's consent. Today, climate change is making another such challenge to Canadian sovereignty a virtual certainty. The greatest barrier to using the Northwest Passage has always been ice. Even in summer, thick, hard ice has choked the western straits and approaches, rendering them impenetrable to all but the most powerful icebreakers and imposing risks no commercial shipping company could afford. But, in the past three decades, the average area covered by Arctic sea ice has shrunk 15 per cent. The ice is also 40-per-cent thinner, with the melt particularly advanced in Canada's Western Arctic. Four years ago, a report prepared for the U.S. Navy predicted that, "within five to 10 years, the Northwest Passage will be open to non-ice-strengthened vessels for at least one month each summer." The melting ice offers a shipping route between Asia and Europe that is 7,000 kilometres shorter than the route through the Panama Canal. Some international shipping companies are already building ice-strengthened vessels. The Kapitan Khlebnikovi, a Russian-flagged ice-breaking cruise ship, is sailing the Northwest Passage right now. Cruise ships might bring economic benefits to Arctic communities, but time is money for shipping companies. There is little reason their vessels would stop at Tuktoyaktuk or Resolute Bay. Any shipping involves the risk of accidents, particularly in remote, iceberg-infested waters. An oil spill would cause catastrophic damage to fragile Arctic ecosystems; a cruise ship in distress could require a dangerous rescue mission. In 1970, through the Arctic Waters Pollution Prevention Act, the Trudeau government imposed strict safety and environmental requirements on shipping. The act is consistent with the United Nations Convention on the Law of the Sea, which allows coastal states to impose stringent laws against maritime pollution when virtually year-round ice creates exceptional navigational hazards. But it is unclear whether this right held by coastal states extends to international straits, or what will happen to the right as the ice disappears. Moreover, any foreign ship that sails through the Passage without seeking permission undermines Canada's claim to sovereignty -- which holds that the straits and channels between the Arctic islands are internal Canadian waters. Canada's sovereignty over the islands themselves is uncontested, with the exception of a dispute with Denmark over Hans Island, where only a fragment of land and surrounding seabed are at stake. Located between Ellesmere Island and northern Greenland, Hans Island is far removed from the much more important dispute over the Northwest Passage. Canada's claim in the passage rests on the fact that very few non-consensual transits have occurred, and that the Inuit have travelled and lived on the ice for thousands of years. The Inuit, by entering into the Nunavut Land Claims Agreement in 1993, have affirmed that "Canada's sovereignty over the waters of the Arctic archipelago is supported by Inuit use and occupancy." Canada's claim is reinforced by several judgments of the International Court of Justice holding that the historical presence of nomadic peoples can help establish sovereignty, and that the degree of presence necessary is lower in inhospitable regions than in more temperate climes. The problem is that Canada has almost no enforcement capability in the Arctic. The Arctic Waters Pollution Prevention Act cannot in practice be applied. Worse yet, as Canada's sovereignty claim depends on the acquiescence of other countries, it is highly vulnerable to more foreign vessels using the Passage without seeking permission -- as they might wish to do to evade our environmental laws. In 1985, the Mulroney government announced plans for a powerful icebreaker, the Polar 8, which could have operated in the Arctic year-round. But, in 1989, fiscal restraint became a greater priority than sovereignty: The contract was cancelled. Despite having the world's longest coastline, much of it ice-covered most of the time, Canada still does not have an all-season Arctic icebreaker. Prime Minister Paul Martin understands the seriousness of the situation, declaring last November that sovereignty "is an issue which is becoming even more important, given climate change and the opening of the Northwest Passage to transportation, and the environmental problems that may flow from that." To his credit, some positive steps have been taken. Canada's aging fleet of Aurora patrol aircraft is being upgraded and equipped with new infrared sensors. Unmanned aerial vehicles are being purchased to provide long-range maritime surveillance at a lower cost. Radarsat-2, a federally funded, remote sensing-satellite, will soon provide the government with up-to-date, high-resolution imaging on demand. But more must be done. Canada offers a registration service to all ships entering its northern waters. But the service is voluntary, unlike the parallel service on the East Coast. Cruise ships register in order to facilitate rescues; other vessels intent on saving money by evading environmental laws might not. Making registration in the Arctic mandatory would bolster Canada's sovereignty. The Department of National Defence is deliberating whether to install high-frequency surface-wave radar at the entrances to the Northwest Passage. The time for deliberation is over. Not only would the mere presence of the installations strengthen Canada's legal position, but the information obtained would assist the Canadian Forces and Coast Guard. Two all-season Arctic icebreakers are needed -- one each for the Eastern and Western Arctic. With thinning ice, these do not need to be as powerful and expensive as the Polar 8 would have been. Several of the Coast Guard's new Cormorant helicopters should also be based near the Northwest Passage to ensure that any suspicious vessel is boarded and inspected. Most important, it's time to persuade Washington -- by far the most influential opponent of Canada's sovereignty claim -- to change its position. Our neighbour's policy on the Northwest Passage dates from the Cold War, when the U.S. Navy needed an assured right of transit and its submarines had to sail submerged. Today, Washington is more concerned about terrorists finding a back door to North America, or rogue states using the oceans to transport weapons of mass destruction to other states or terrorist groups. In the Arctic, these new threats could just as easily be handled by a strengthened Canadian Coast Guard and navy. Canada's ability to police the Arctic would be enhanced if its domestic laws could be applied to their full extent. It does not serve the interests of the United States to have foreign vessels shielded from those laws, and most of international law, by insisting that the Northwest Passage is an international strait. Nor is it likely that Canada would ever deny the U.S. Navy access to the Northwest Passage. Indeed, Ottawa and Washington are planning to expand maritime co-operation in conjunction with the renewal of the NORAD agreement next year. Last November, Paul Cellucci, the outgoing U.S. ambassador, suggested that U.S. national security might be enhanced if Washington recognized Canada's claim over the Passage. "We are looking at everything through the terrorism prism," he said. "Our top priority is to stop the terrorists. So perhaps when this is brought to the table again, we may have to take another look." Invitations to negotiate do not come any clearer . It's time to show that we're ready and able to police Arctic waters. The Prime Minister could then seize what might be our last best chance for a Canadian North both strong and free. Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia; Suzanne Lalonde is a law professor at l'Université de Montréal. Together, they direct a project on sovereignty and the Northwest Passage funded by the Social Science and Humanities Research Council of Canada.
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