By K. Joseph Spears
What is old is new again. United States Secretary of State Mike Pompeo at the recent ministers meeting at the Arctic Council in Helsinki, Finland, talked about Canada’s claim to the Northwest Passage, and stated: “We recognize that Russia is not the only nation making illegitimate claims. The U.S. has a long-contested feud with Canada over sovereign claims through the Northwest Passage.”
Freedom of navigation is a cornerstone of the global economy. The 90,000 commercial vessels engaged in international commercial shipping are the conveyor belt of globalization. Our modern global economy rests on stable ocean commons which allow for the free movement of goods. In Canada’s Arctic, the status of the waters in the Arctic Archipelago have been the subject of a great deal of debate in years past. In 1985, Canada enacted territorial sea baselines around the Arctic Archipelago enclosing these waters as internal waters. If recognized internationally, they would be treated like land territory under international law, which would allow Canada to have complete regulatory control over these waters. As it is, no other country has recognized Canada’s claim, permitting Canada to exercise de facto sovereignty over these waters.
The waters subject to Canada’s baselines, if recognized internationally, would not be subject to the right of either innocent passage or transit passage, as those terms are defined under the United Nations Law of the Sea Convention. If Canada’s claims were recognized, there would be no right for international vessels to enter these waters without Canada’s consent. Under the Law of the Sea convention, the ice-covered water provision of article 234 allows a coastal state take special measures to protect the marine environment because of the risk posed by sea-ice.
Transit passage is a concept of the Law of the Sea, which allows a vessel or aircraft the freedom of navigation or overflight solely for the purpose of continuous and expeditious transit of a strait between one part of the high seas or exclusive economic zone, and another. The legal status of a section of the Northwest Passage is disputed: Canada considers it to be part of its internal waters, fully under Canadian jurisdiction according to the United Nations Law of the Sea Convention. The United States and other nations consider them to be an international strait, which means that foreign vessels have a right of “transit passage”. In such a régime, Canada would have the right to enact fishing and environmental regulation, and fiscal and smuggling laws, and laws intended for the safety of shipping, but not the right to close the passage.
Recently in Norway, senior USN Naval Officer, Admiral James G. Foggo III had this to say about freedom of navigation in a global context and with specific reference to the Arctic and the actions of Russia along the Northern Sea Route: “The U.S. Navy is committed to freedom of navigation in the Arctic and oceans around the world.”
When China’s research icebreaker the Xue Long (“Snow Dragon”) transited Canadian waters in 2017 with a Canadian ice navigator on board, the voyage was touted as a scientific research cruise. China has recently developed a handbook for navigation in the Northwest Passage. At the time, official Chinese media stated: “Beijing used a scientific icebreaker voyage through Canada’s Northwest Passage to test the viability of sailing Chinese cargo ships through the environmentally fragile route that links the Atlantic and Pacific oceans.”
Xinhua News Agency, often used to deliver messages on behalf of the Chinese state, lauded the completion of the first-ever Chinese voyage through the Arctic waterway, saying the Snow Dragon icebreaker “accumulated a wealth of experience for Chinese ships going through the Northwest Passage in the future. It opened up a new sea lane for China,” the news agency said. “From Shanghai to New York, the traditional route that passes through the Panama Canal is 10,500 nautical miles, while the route that passes through the Northwest Passage is 8,600 nautical miles, which saves 7 days of time.”
Because Canada claims the Northwest Passage as internal waters, Canada demands that foreign vessels ask permission before sailing through the Northwest Passage. Foreign Affairs Minister Chrystia Freeland stated to the Globe and Mail at the time “Canada granted its approval on the basis that China was conducting scientific research”. A team of Canadian scientists was also on board, as well as a Canadian ice navigator.
In the context of the South China Sea, China has taken small uninhabited rocks and sand bars to construct much larger artificial islands, followed by claiming a territorial sea around those that islands to preclude vessels from other nations from transiting these waters which have historically been international waters with no restriction under the United Nations Law of the Sea convention. Many have called the navigation restrictions a wall of sand.
Canada needs the capability to undertake ocean governance and shipping management, which includes search and rescue operations, and salvage capabilities. For example, in the case of the grounded vessel Akademik loffe in the late summer of 2018, a lack of Canadian capability with respect to rescue and salvage left the vessel dealing with the situation reliant on its own resources, with no accompanying salvage and/or search and rescue response vessel standing by. A small amount of fuel spilled when the ship grounded, according to the Transportation Safety Board, and the vessel sustained “major hull damage”, TSB said.
As the Premier of the Northwest Territories mentioned, Canada’s needs to consider the international implications of what it is doing in the Arctic, especially as it relates to international shipping. Presently Canada focuses on destination shipping resupplying local communities, and supporting natural resource developments in the regions. However, Canada has international obligations in the Arctic, which are not being met. These obligations consist of the ability as a coastal state to provide critical marine infrastructure, proper marine charts, aids to navigation, marine communications, search and rescue, marine pollution response to name a few. In the Arctic, a robust marine response requires icebreakers and air assets on a sustained basis.
As we start seeing greater volumes of sea ice melt, we get closer and closer to increased commercial shipping activity, with increased marine risk. Coupled with increasing marine tourism and resource exploitation such as fisheries in the region, both domestic and international in transit shipping will increase in the coming decades. Any Canadian Arctic policy and/or strategy must reflect the increasing roles that Canada will be asked to play to keep shipping lanes open for international commerce, with all of the required support functions that must protect commerce, property, lives and the environment.
Joe Spears has examined the South China Sea with the late Prof. Ian Townsend Gault of Dalhousie Law School and UBC’s Asian Legal Studies Centre and assisted in Canada with respect to international legal work with the team of international legal scholars with respect to the Arctic Archipelago. Joe can be reached at firstname.lastname@example.org.