In early May 2019, the United States Secretary of State, Mike Pompeo, found himself at the receiving end of international backlash and criticism, at the 11th Arctic Council (The Rovaniemi Ministerial Meet) when he described the precarious situation in the Arctic as an ‘economic opportunity’, with enormous potential for the Shipping and Oil Exploration industry.
While the following discussion was largely related to environmental concerns and his capricious remarks, it also broached up the subject of territorial claims on the discussion table. The discussion brings to the forefront the long standing legal conflict between the United States of America and Canada regarding the claims over the North Western Passage. In this blog, the authors expand about the geography and the importance of the passage to understand international law provisions. It also follows the historical events that have taken place to put into perspective the facts of the conflict. Consequently, the article discusses the point of view of both the states to legally analyse their positions and reach a conclusion regarding the current status of the sovereignty and any future engagements between the states on the issue.
2. Who may claim the Arctic?
The Arctic is home to some of the most convoluted territorial disputes around the world, primarily due to overlapping of Special Economic Zones created by various archipelagos around the North Pole. One of them is the unresolved issue on the territorial and explorational claims for the Northwest Passage. The Northwest Passage is a sea route that connects the Pacific Ocean with the Arctic Ocean and Europe, running through the Canadian Archipelago.
With the continuous increase in global temperatures, it has been expected that the Arctic can be free of ice, all year long, as early as 2040. If proven navigable, the Northwest Passage is a lucrative shipping route, reducing the travel time and fuel costs between East Asia Markets and Western European markets by as much as 40% when compared to the best alternative, that so far exists in the form of the Panama Canal.
While this exploitative view can be problematic given the strain this will add on the already fragile Arctic Ecosystem, for Canada, the woes are much beyond the environmental damage. It is a question of sovereignty. For several years Canada has been battling with its Southern neighbour, the United States, over the issue of the Northwest Passage, which Canada has repeatedly claimed as its Inland Waterbody. The US, on the other hand, had been stern on its stance of treating it as international waters.
3. A Historical Overview:
Unlike other territorial disputes around the world, the Northwest Passage dispute is a peculiarity in its own right, where the question is not over the sovereignty of the archipelagos, but rather over the waterways. Canada had purchased the Hudson Bay Territories in the year 1870. Furthermore, Canada received the consent of the British crown in 1880 for the transfer of “all British territories and possessions in North America, not already included within the Dominion of Canada and all Islands adjacent to any such Territories or Possessions”.
3.1 Enter USS Manhattan
In the American history, 1969 shall be recorded as a year when they achieved new heights in the fields of Technology and Diplomacy, when the nation emerged as the ‘victor’ of the ‘space race’. However, to the North, things were anything but cold, and The age of diplomatic ties between US and Canada, had tanked to the rock bottom. SS Manhattan, dubbed as the strongest vessel of its time, and armed with an ice breaking bow, set sail for a voyage through the North-Western Passage for the very task of circumnavigating the Arctic, from the East Coast of the United States through the Prince of Wales Strait to the Prudhoe Bay and back, in hopes of searching an alternate route connecting the Atlantic to the Pacific.
The voyage, however, was only successful in stirring up a controversy, as the Canadian government, despite helping it plough through the ice, was infuriated upon not being asked for the permission to navigate, in what it called as its “Internal Waters”. Thus, birthed a new controversy in international law regarding sovereignty as the United States insisted that the Passage is open to exploration as part of international waters and Canada claimed its sovereignty over it as part of the Canadian Archipelago.
4. Agreeing to Disagree: A tale of two Nations
Even to the days pre-dating the USS Manhattan incident, the US and Canada had firmly agreed to disagree over the question of Northwest Passage. For Canada the question is about sovereignty, while for the USA, it’s about Freedom of exploration, thus putting the time tested allies at odds with one another. To have a lucid picture of the legal quagmire, we must understand the claim made by each of the parties and the position of international law.
4. 1 The American objections:
The primary argument put forth by the US is that the North Western Passage meets the requirement of an international straight, as per Article 3 of the United Nations Convention on the Laws of the Seas (UNCLOS), a treaty which it accepts as international law but has never been ratified by Congress. Further, this claim has only been strengthened with time, as with better navigation technology and melting of the Arctic, the international cargo passing through the passage has seen a steep rise. This claim is also backed by the landmark ruling of the International Court of Justice in the Corfu Case, concerning the Corfu strait in Albania, which in turn classified the straight as an ‘Innocent Passage’. It was further stated that as long as the use of the route in the territorial waters of another state is not ‘prejudicial to the peace, good order or security of the coastal state’ there exists a right of innocent passage, i.e. a foreign ship can’t be restricted by another nation over the usage of an ‘Innocent Passage’; as stated under Article 19 of the UNCLOS.
The second argument presented by the US is related to the issue of ‘Baseline’ around the outer limits of the islands. The baseline concept helps nations in asserting sovereignty over the coastline and surrounding water, as in the case of Norway. However, this only applies to the ‘state constituted archipelagos’ located in the vicinity of the ‘mainland’. However, in the absence of measurable limits, this concept in itself remains extremely peculiar for any possible application.
4. 2 The Canada’s contentions:
Canada’s case primarily rests on the ground that the “disputed area” has had a historic presence in the Inuit and other Native Indian communities. This claim has been bolstered by the wide-spread Inuit settlements around the Northwest passage including communes like Nunatsiavut in Newfoundland and Labrador, Inuvialuit Settlement Region in the North-Western Territories and Yukon, and Nunavik in Quebec. The native Inuit presence along with the fact that until now, the passage had not been used for navigation, placing Canada in an extremely comfortable position, concerning its claim of projecting the “Disputed Waters” as “Internal Waters”.
Further, Canada has used the landmark Fisheries case to back its claim. The case between the United Kingdom and Norway was a dispute regarding the Royal Decree of 1935 which imposed the delimitations established by Norway for fisheries zones. The UK contested the drawing of baselines for exclusive Norwegian fishing zones and further asked for damages. The International Court of Justice here stated that “the coast does not constitute a clear dividing line between land and sea and that it is the outer line of the land formations which constitutes the coast” ruling it in favour of Norway, and demarking the extent of local sea area a country can have exclusive rights over.
5. The stance of Law and a possible solution:
With the drafting and ratifying of UNCLOS, the laws of the seas have been defined in a way so as to move to a more clear answer regarding the sovereignty of states over bodies of water. However, there are more than often disputes regarding the interpretation of the said charter. While the UNCLOS can tilt the dispute to Canada’s favour, there is a substantial question regarding the commercial status of the region which goes unanswered. The legal status and the question over the future of the straits can be brought down to a simple question, regarding whether the straits form an “Innocent Passage or not” ? An “innocent passage”, as defined under Article 19 of the UNCLOS, is a waterway that allows for a vessel to pass through the territorial waters of another state. This, however, is subjected to certain restrictions. The foremost amongst them is the lack of international marine traffic that passes through the passage. As stated by the ICJ, in the Corfu Case, for a passage to be designated under the category of an “Innocent Passage” it is imperative that a large volume of maritime trade passes through it. With less than 50 full cargo transits throughout the entire 2019, establishing the Northwest Passage can be a monumental task for any country, ‘how so high or how so humble’. Thus, by a strict interpretation of the UNCLOS, it can be concluded that the case shall pivot in favour of Canada, provided the situation does not alter drastically in terms of the volume passing through the NorthWest Passage annually. Although, a best in case suggestion for future engagements to solve the dispute amicably would be an agreement or specific treaty amongst all party states who have a vested interest in the territory in question. Nonetheless, the developments in the region must be watched closely as it has major implications both environmentally and economically. Possibly, even enhance and provide newer interpretations of international law provisions.
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 supra Note 6
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 supra Note 6
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