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Canadian government cannot afford to dither on Arctic sovereignty
Canadian government cannot afford to dither on Arctic sovereignty
Michael Byers
October 16, 2006

 Pierre Berton called the Northwest Passage the ”Arctic Grail.“ From Martin Frobisher in 1576 to John Franklin in 1845, European explorers searched for a navigable route around the northern rim of North America to Asia. Their efforts were stymied by the thick ice which choked the straits and channels between the Arctic islands, even in summer. Roald Amundsen completed the first transit in 1906, but it took him three years—including two winters lodged in the ice.

Today, the ice is melting. In 2004, the Arctic Climate Impact Assessment reported that the average extent of sea-ice cover in summer had declined by 15 to 20 per cent over the previous 30 years. The remaining ice was 10 to 15 per cent thinner overall and 40 per cent thinner in the central Arctic Ocean. These trends were expected to accelerate so that by the end of the 21st century, there might be no sea-ice at all left in the summer. Recent satellite measurements analysed by the U.S. National Snow and Ice Data Centre indicate that the situation might, in fact, be changing even more quickly. The area covered during the winter by sea-ice was at an all-time low in March 2006, down some 300,000 km² from the previous year. In 2001, 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.“ In February 2006, Gordon O’Connor was told, in the briefing book provided when he became defence minister, that: ”If the current rate of ice thinning continues, the Northwest Passage could be open to more regular navigation by 2015.“ At the moment, the Arctic Oscillation, a circular pattern of atmospheric winds and ocean currents, is pressing the shrinking icepack against the north-west flank of Canada’s Arctic archipelago. This has led Canadian government scientists to conclude that ”multi-year ice,“ three or four metres thick and nearly as hard as concrete, is being pushed—and will continue to be pushed—into Northwest Passage, precluding international shipping for decades to come. However, recent research at the California Institute of Technology, using remote-sensing satellite data, shows that the overall movement of ice is actually in the opposite direction.

Still, in the short term, the uncertainties involving ice movements, bad weather and a remote location will—along with consequently higher insurance premiums—probably dissuade reputable shipping companies. But less reputable companies might take the risk, since the Northwest Passage offers a route between the East Coast of North America and Asia that is 7,000 km shorter than the current route through the Panama Canal—thus saving on time, fuel and transit fees. Single-hulled tankers and tramp steamers could soon be steaming through one of the most fragile ecosystems on Earth, raising the prospect of catastrophic oil spills as well as the introduction of invasive species through the emptying of ballast tanks. Just as problematically, ships carrying illicit cargoes could be attracted by the near absence of a military or police presence. Indeed, transnational criminal activity was the focus of an ”Arctic Capabilities Study“ conducted by the Canadian Directorate of Defence in 2000. Since then, concerns about terrorism and illicit trafficking in weapons of mass destruction have only increased. The greatest incentive for future shipping will probably be the increasing value of oil and gas.

The U.S. Geological Survey estimates that 25 per cent of the world’s undiscovered fossil fuels are located under the Arctic Ocean. Big Oil is already planning against the day when they are discovered: Shell has recently commissioned an analysis of the legal status of the Northwest Passage— which is the subject of a longstanding international dispute. Ownership of the islands is not at issue. They were assigned to Canada by Britain in 1880 and the resulting title has never been contested, with the sole exception of tiny, inconsequential Hans Island. As for the straits and channels between the islands, the nearly impenetrable ice meant that the issue of ownership was, for decades, never even discussed. In 1969, Humble Oil (now Exxon) sent an ice-strengthened supertanker— the SS Manhattan—on a voyage through the Northwest Passage. The U.S. Coastguard dispatched two icebreakers to accompany the vessel, and made a point of not seeking permission from Canada.

The Canadian government responded by granting permission anyway, and sent one of its own icebreakers to help. The following year, Parliament adopted the Arctic Waters Pollution Prevention Act. The legislation imposed safety and environmental requirements on all shipping coming within 100 miles of Canada’s Arctic coast. But international law did not, at the time, recognize coastal state rights beyond the territorial sea. When testifying about the Canadian initiative before a House of Commons committee in 1978, a lawyer from the Department of External Affairs reported that a ”drawer full of protests“ had been received from other countries. Canada’s unilateral actions did, however, contribute to changing international law. In 1982, the UN Convention on the Law of the Sea permitted coastal states to enact laws against maritime pollution out to 200 miles in areas where almost year-round ice creates exceptional navigation hazards. This was a significant diplomatic accomplishment. Unfortunately, its value may soon be lost—as the ice disappears. Also in 1970, Parliament extended Canada’s territorial sea from three to 12 miles. This move was less controversial, since 60 other countries had already done likewise. Its immediate relevance lay in the fact that the Northwest Passage is less than 24 miles across at its narrowest point. It thus became impossible to travel through without entering Canada’s territorial sea at certain ”geographical choke-points.“ Under international law, ships passing through another country’s territorial waters are normally prohibited from engaging in any military or intelligence-gathering activity. They are subject to the coastal state’s domestic maritime safety, fisheries and environmental laws as well as reasonable measures aimed at preventing customs, tax or immigration violations. In addition, the Canadian government began arguing that the straits and channels were ”historic internal waters“ in which foreign vessels had no right of passage at all.

Under international law, a country may legitimately claim title on historic grounds if it has exercised exclusive authority over a maritime area for a considerable period and other countries—especially those directly affected—have acquiesced. Canada pointed out that the archipelago had been mapped by British explorers prior to 1880, that it had been explored and patrolled by Canada after that date, and that very few non-consensual transits of the Passage had occurred. Canada also pointed out that the Inuit—who are Canadian citizens—had traveled and lived on the ice for millennia. In contrast to Canada’s multiple legal arguments, the position of the United States has always been simple and clear: the Northwest Passage is an ”international strait.“ International straits are narrower than the overlapping territorial seas. But, because they join two expanses of ”high seas“ and are used for international navigation, international law places relatively few restrictions on ships passing through them. The coastal state retains title to the waters, but foreign vessels have a right of ”transit passage“, much like walkers on a footpath through a British country estate.

During the Cold War, the United States was intent on maintaining open access for its navy, and especially its submarines, to as many straits and channels as possible worldwide. Under international law, submarines may pass through an international strait without surfacing or otherwise alerting the adjacent coastal state or states, something not permitted in internal waters or, normally, in territorial waters either. From Washington’s perspective, the Canadian claim threatened to create an inconvenient precedent for straits and channels elsewhere. In 1985, Canada modified its legal position, connecting up the outer headlands of the archipelago with ”straight baselines“ and claiming that title to the waters within the baselines—which by definition are internal waters—was consolidated by historic usage. But while international law allows straight baselines to be drawn along fragmented coastlines, these cannot be used to close off an existing international strait. As a result, the crux of the dispute between Canada and the United States is the requirement that international straits be used for international navigation. Ottawa argues that a few non-consensual transits are an insufficient basis on which to treat the Northwest Passage as an international strait. In response, Washington points to a judgment of the International Court of Justice, in a case concerning the Corfu Channel, which suggests that the actual volume of traffic is irrelevant.

In any event, any further unauthorized transits would undermine Canada’s claim, making it imperative that no such transits occur. Yet Canada is poorly equipped to prevent this from happening. The Canadian Coast Guard’s small fleet of icebreakers, used to re-supply northern communities in summer, is incapable of operating through the Arctic winter and is redeployed to the Gulf of St. Lawrence each autumn. Canada’s Air Force had not made its presence felt in the Arctic since the threat of Russia bombers disappeared; in recent years, only a handful of token ”sovereignty assertion“ flights have been conducted. Canada’s Navy sends the occasional vessel into Baffin or Hudson Bay but—because its vessels are not ice-strengthened—stays well away from the straits and channels within the archipelago. The bulk of Canada’s military presence is provided by the Canadian Rangers, 1,400 part-time volunteers. The Rangers know the land and ice and are useful for some search and rescue operations, but they are neither trained nor equipped for forcibly boarding oceangoing vessels. Transits by nuclear-powered submarines pose a particular problem.

It is widely known, though infrequently acknowledged, that submarines from several countries regularly go through the Northwest Passage under the ice. Canada has never had a submarine that could do so. In 1987, the Canadian government decided to buy 12 nuclear-powered submarines, but pressure from Washington led to the plan being abandoned. In 1998, Canada purchased four second-hand diesel-electric submarines, but these cannot submerge for long enough to be of use under the ice. Arguably, it works in Canada’s favour that the foreign submarines do not announce their presence. In international law, a country is generally required to manifest some sense of obligation or entitlement before its actions can contribute to a change in the rules. At the same time, it seems likely that Canada has been told about some of the submarine voyages and simply kept quiet. Canada’s last serious Arctic policy died in the late 1980s, when the plan to acquire the nuclear-powered submarines was cancelled. Then, Jean Chrétien made the situation worse by disbanding the Canadian Airborne Regiment—which, while it existed, had the ability to deploy 500 paratroopers within 24 hours anywhere on Canadian territory. The Chrétien government also imposed massive cuts on the Canadian military and coastguard, leaving almost no money for Arctic concerns.

Paul Martin declared in November 2004 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.“ But Martin’s government chose to focus almost entirely on surveillance: adding infra-red sensors to ageing patrol aircraft, experimenting with unmanned aerial vehicles, and investing in satellites that will eventually be able to track surface vessels from space. During the last election campaign, it seemed the Conservative Party understood the need for decisive action. Stephen Harper announced a ”Canada First“ northern strategy that included ”three new armed naval heavy ice breakers.“ But now that Mr. Harper is Prime Minister, he appears to be having second thoughts. His government’s first budget made no mention of the icebreakers, and they were nowhere to be found in the $17.1-billion of defence purchases announced in June 2006.

When it comes to the Northwest Passage, all the Harper Government can point to is an agreement with Washington to expand the functions of NORAD to include the sharing of surveillance information from maritime approaches and ”internal waterways.“ But while the United States was given something that it wanted—access to Canadian maritime surveillance within the Passage—Canada, apparently, did not demand recognition of its sovereignty claim in return. If Canada is to maintain sovereignty and security in the Northwest Passage, it must assert a year-round presence, and for this the promised icebreakers are needed. Ideally, the vessels would be supplied to the Coast Guard rather than the Navy, since Coast Guard icebreakers carry out a wide variety of missions. In addition to re-supplying Northern communities, they clear paths for other ships, provide search and rescue, support research scientists, and help enforce fisheries, environmental, immigration and criminal laws. With the addition of light armament, they can also fulfill the sovereignty and security role.

Unfortunately, by promising the icebreakers for the Navy, Mr. Harper placed the ships in competition with the Canadian Forces’ other procurement plans. Canada’s military has never wanted icebreakers. In 1951, the Navy was provided with a heavy icebreaker— the Labrador. But, from the Navy’s perspective, the ship diverted money from the primary mission of the day—protecting North Atlantic sea-lanes for NATO. In 1958, the Labrador was transferred to the Coast Guard, and later decommissioned. Today, Canada’s generals and admirals are suggesting that hovercraft and small patrol boats could be used to monitor the approaches to the Northwest Passage. These alternatives have been dreamed up only because they would divert less money from today’s primary mission—fighting counterinsurgency wars in places like Afghanistan. With neither the range nor the capability of icebreakers, the proposed alternatives do not constitute a serious response to the challenges of our rapidly changing North.

The lack of commitment is all the more unfortunate because U.S. interests in the Northwest Passage have changed. Washington is less concerned today about Russian submarines than about terrorists finding a backdoor to North America, or rogue states using the oceans to transport WMD. In the Arctic, these threats would best be dealt with by a strengthened Canadian coastguard and military applying domestic Canadian laws. It simply does not benefit the United States to have foreign vessels shielded from scrutiny and reasonable regulations by maintaining that the Northwest Passage is an international strait. Access to the waterway is not at issue, since Canada would never deny entry to one of its allies, or indeed to a reputable shipping company.

As Pierre Trudeau declared in 1969, ”to close off those waters and to deny passage to all foreign vessels in the name of Canadian sovereignty Ħ would be as senseless as placing barriers across the entrances of Halifax and Vancouver harbours.“ Washington’s concern about a precedent is misplaced. It can plausibly be argued that the thick, hard ice, along with the resulting near-absence of international navigation, has created a situation where the Passage can be distinguished from the other waterways the United States argues are ”international straits.“ The uniqueness of the situation helps explain why, in November 2004, then U.S. ambassador Paul Cellucci admitted that it might actually enhance U.S. security if Washington recognized Ottawa’s claim. ”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.“ Four months later, during an online dialogue posted on the U.S. Embassy website, Cellucci wrote that he had recommended the U.S. State Department take a ”serious look at our longstanding policy“. Cellucci’s comments have created an opportunity for bilateral negotiations aimed at resolving the dispute. In return for Washington recognizing Canada’s claim, Ottawa should offer firm commitments of open access for all U.S. vessels, active support for international shipping, and immediate investments in the necessary equipment and personnel to monitor and police the Northwest Passage year-round. The government cannot afford to dither. Negotiations must occur while the Canadian claim is still defensible—before it, along with the ice, melts away.

Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia.

 
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