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North of 60: Negotiate the Northwest Passage, Before It’s Too Late

Canada and the U.S. should update the 1988 agreement they reached on the Northwest Passage to recognize both countries’ interests in security and transit.

Written by Michael Byers Published on Read time Approx. 9 minutes
Canada and the U.S. have agreed to disagree over the status of the Northwest Passage, but they should update their 1988 agreement before either country has to make a difficult decision over a third-party's actions.Flickr, CC BY-SA 2.0/Joe Haupt

If Vladimir Putin wanted to cause Justin Trudeau and Barack Obama some grief, he would order a Tupolev Tu-95 “Bear” bomber to fly through the Northwest Passage (NWP). In one fell stroke, the Russian president would drive a wedge between Canada and the United States.

The reason being is that the United States considers the NWP to be an “international strait” through which ships from all countries have a right of uninterrupted “transit passage.” While this right does not affect ownership of the waterway, it would prevent Ottawa from controlling who enters it.

Conversely, Canada claims the NWP constitutes “internal waters.” This designation would bar ships from entering the waterway without express consent and require vessels to comply with Canadian customs, immigration, criminal and environmental laws.

Although the dispute has always focused on ships, it also concerns aircraft. Military planes from any country may fly through an international strait unless they linger or show hostile intent.

If Putin sent a Bear bomber into the NWP, he would force Obama to make a choice: support Russia’s right to do so, consistent with the United States’ international strait claim, or oppose the flight and undermine the U.S. position on the matter. Trudeau would be forced to make an equally difficult choice between allowing the Russian plane through, or using force to stop it.

An internal waters claim is undermined by usage that lacks consent, which is why Canada granted permission to U.S. ships that sailed through the NWP in 1969 and 1985 – even though the ships had not requested permission. But while Canada has always been careful to avoid any escalation of its dispute with the United States, one can hardly imagine it providing unsolicited permission to a Russian bomber.

If necessary, Canada could issue a diplomatic protest. In international law, a protest is usually sufficient to prevent another country’s action from undermining sovereign rights. But since a Russian bomber flying through the NWP would constitute a highly visible challenge to Canada’s legal position, a protest might not suffice where it really matters – in the harsh world of global politics. Seen through the flinty eyes of China, India and the European Union, it could take more than a protest to defend Canada’s claim.

Forcing a plane to turn round or land is not a realistic option in these circumstances. Russia would regard any use of force as an armed attack, and because of the Canada-U.S. dispute over the passage, it would actually have a legal leg to stand on. Any forceful action by Canada would also displease the United States, and not just because of the international strait claim. Washington is engaged in high-level diplomacy with Russia on a number of sensitive non-Arctic issues, including Ukraine, Iran and the so-called Islamic State.

Putin, of course, would weigh the risk of invoking a forceful Canadian response. He is playing chess in his standoff with the North Atlantic Treaty Organization (NATO) states, not Russian roulette. This explains why Bear bombers have only approached, but not yet entered, Canadian air space.

The Russian president will also consider the fact that his country has its own internal waters claim – in the straits along its northern coastline – that could be affected by such an act. The United States also contends that these channels constitute international straits. However, the Russian legal position is more secure than the Canadian one. No foreign ships or aircraft have ever entered Russia’s Arctic straits without seeking and receiving permission. When a U.S. icebreaker sailed toward the Vil’kitskii Strait in 1965, Moscow threatened to “go all the way” in response – and the icebreaker turned around.

Of course, Putin might never send a Bear bomber through the NWP. But NATO tensions with Russia provide a new reason to resolve the legal dispute between Canada and the United States.

In the past, the two countries have engaged in diplomacy on the NWP when it has been necessary to do so. In 1988, Brian Mulroney, then prime minister of Canada, resolved the sovereignty challenge posed by a U.S. Coast Guard icebreaker entering the waterway without requesting Canada’s permission. He persuaded Ronald Reagan that all U.S. Coast Guard icebreakers should seek Canada’s consent before using the NWP, by pledging that consent would always be granted. The resulting Arctic Cooperation Agreement would have resolved the matter, for all practical purposes, if not for the dramatic melting of sea ice now occurring.

Climate change is causing the NWP to become seasonally ice-free, attracting private, non-icebreaking vessels – including small yachts, cruise ships and large bulk carriers – from Canada and other countries. This increased shipping necessitates improvements in policing, search and rescue, oil spill response and other basic services that only Canada, as the coastal state on both sides of the waterway, is operationally positioned to provide. However, Canada’s incentive to make these investments is reduced, so long as its jurisdiction to regulate shipping is contested by the world’s most powerful country.

At the same time, U.S. security concerns have changed in recent decades. In 2005, then U.S. ambassador Paul Cellucci revealed that he had asked the State Department to re-examine the U.S. position on the NWP in light of the threat from global terrorism. Cellucci’s concern was that terrorists might take advantage of ice-free conditions to transport weapons of mass destruction or enter North America. He went so far as to suggest publicly that Canada’s legal position might now benefit the United States.

The United States has also realized that it is a so-called “strait state” both in the Bering Strait, between Alaska and the Russian Far East, and in Unimak Pass, a narrow gap in the Aleutian Islands through which more than 5,000 cargo ships pass each year on the Great Circle Route between North America and Asia. This realization should make the United States more sympathetic to Canada’s security, environmental and jurisdictional concerns in the NWP.

Canada and the United States could, potentially, partner in a global diplomatic campaign to strengthen the rights of coastal states in international straits under the Law of the Sea. Such a campaign would seek to rebalance the interests of coastal and shipping states in light of newly heightened, widely shared concerns about oil spills, terrorism and illegal immigration.

A simpler, more easily achievable solution would be an updated Arctic Cooperation Agreement that both recognizes Canada’s internal waters claim and ensures freedom of navigation for U.S. government ships and reputable shipping companies. But to achieve such an agreement, Canada would have to address two fundamental U.S. concerns.

The first concern is that any compromise on the NWP might create a precedent for other waterways, for example, the Strait of Hormuz, where oil tankers exit the Persian Gulf and freedom of navigation is contested by Iran. However, it would be easy for lawyers to distinguish the NWP from these other waterways, on the basis of its considerable length, the frequent presence of sea ice and the resulting near-absence of shipping – indeed, between 1906 and 2005, only 69 full voyages took place. The concern about a precedent could be alleviated further by Canada and the United States making clear that their new agreement – which would be a bilateral treaty, as in 1988 – takes the issue out of the realm of customary international law as between these two countries. This could be accomplished by language stating that the new agreement is “without prejudice” to the rights of third states or the legal status of other waterways.

The new agreement could then be multilateralized through the conclusion of similar agreements between Canada and other countries. This approach has already proven successful with the many nearly identical bilateral treaties concluded between the United States and Caribbean countries for drug interdictions at sea, and the similar bilateral treaties concluded with “flag of convenience” states under the U.S.-led Proliferation Security Initiative. Such countries could usefully include Canada’s other NATO partners as well as other allies of both Canada and the United States, such as South Korea, Japan and the two major shipping registries of Liberia and Panama. Obviously, U.S. support for such an approach would be essential in bringing many countries on board.

Committing to freedom of navigation through the NWP for Canada’s allies and responsible shipping companies would be consistent with longstanding Canadian policy. In 1969, then Prime Minister Pierre Trudeau declared that “to close those waters and to deny passage to all foreign vessels in the name of Canadian sovereignty … would be as senseless as placing barriers across the entrances of Halifax and Vancouver harbors.” Securing U.S. recognition for Canada’s internal waters claim serves a very different purpose, namely providing regulatory and enforcement powers over irresponsible shipping companies and other potentially dangerous non-state actors.

The second fundamental U.S. concern is that Canada, after having the internal waters claim recognized, might then fail to invest in the infrastructure, services and other capabilities needed to protect U.S. security and economic interests there. These necessary investments include improved charts, navigation aids, ports of refuge, weather and ice forecasting, search and rescue, surveillance and a credible security presence for deterring and dealing with pirates, terrorists, smugglers and illegal immigrants. Writing these kinds of investments into a new agreement will not be easy, but might be a necessary price for U.S. support. At least some of the commitments could usefully be announced in advance of negotiations.

At the same time, achieving agreement on some cooperative measures might be relatively easy. In February 2008, Paul Cellucci (by this point no longer ambassador) and I led a model negotiation on northern shipping. The goal of the two-day exercise – conducted by two teams of non-government experts – was to identify possible solutions and make joint recommendations aimed at both the Canadian and U.S. governments.

The teams agreed that the long history of Canada-U.S. cooperation in the Arctic indicates the potential for a new bilateral agreement, as does the history of cooperation on shipping through other waters under national jurisdiction such as the St. Lawrence Seaway. We made nine concrete recommendations, including that the two countries collaborate on developing parallel rules and cooperative enforcement mechanisms for notification and interdiction in the waters north of Alaska and Canada, as well as on the establishment of shipping lanes, traffic management schemes and oil spill response plans. We recommended that the two countries cooperate with respect to immigration and search and rescue concerns related to cruise ships, and accelerate the acquisition of new icebreakers and other capabilities in support of increased shipping. We also recommended that they make maximum use of their already considerable legal powers over vessels sailing to or from Canadian or American ports, or registered in either country, and that they establish a Canada-U.S. Arctic navigation commission, following the model of the International Joint Commission, which has dealt with transboundary freshwater issues since 1909.

The point was not to solve the legal dispute during our model negotiation. We did not. But we did demonstrate that a great deal of progress can be made quickly and easily when Canada and the United States resume official negotiations on the NWP.

The current U.S. government is willing to talk, as Ambassador David Jacobson made clear in a January 2010 cable released by WikiLeaks:

At this juncture, for Canada to advance its “sovereignty” interests there is a need to focus on bilateral and multilateral partnerships with its Arctic neighbors. … Among the Arctic coastal states (and perhaps among all countries) Canada and the United States typically have the most closely aligned policy interests and generally share a common viewpoint on international law and common objectives in multilateral fora (such as the Arctic Council). From Canada’s point of view, if the two countries can find bilateral common ground on Arctic issues, the chance for Canadian success is much greater than going it alone against the interests of other countries or groups of countries. (Embassy of Ottawa 2010)

Opportunities for diplomatic agreement are rarely as evident as this. With the sea ice melting, foreign ships coming and Russia up to mischief, it is time to resolve the NWP dispute.

The views expressed in this article are those of the author and may not reflect those of Arctic Deeply.

This piece originally appeared in “North of 60: Toward a Renewed Canadian Arctic Agenda,” and is reprinted here with permission. Read the full report here.

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