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Sparks fly over the Northwest Passage Canadian, U.S. perspectives clash during Commonwealth North forum; is the passage an international waterway with access for all? Alan Bailey Petroleum News
The Northwest Passage is an international strait used for international navigation, John Norton Moore, director of the Center of Oceans Law and Policy at the University of Virginia School of Law, told a Commonwealth North forum in Anchorage May 20, at the end of a lively debate on the disagreement between the United States and Canada over Canada’s sovereignty over the passage, a sea route that seems set to take on new international significance in the face of a shrinking Arctic summer sea ice extent.
“The United States is never going to agree that another nation has the right to stop its warships and its aircraft from going through a strait used for international navigation,” Moore said.
Extreme views Moore said that although the United States is fortunate to have a neighbor like Canada, there are some extreme views in both countries.
People with an extreme position in the United States want to block ratification of the international Convention on the Law of the Sea treaty; people with an extreme position in Canada are “yelling sovereignty,” a sovereignty that would prevent U.S. warships having the right of passage through the Northwest Passage, and remove the right of overflight along a major navigational route, Moore said.
Earlier in the forum Stephen de Boer, director of the Oceans and Environmental Law Division for the Canadian Department of Foreign Affairs, had explained the Canadian position, a position that revolves around the question of whether the Northwest Passage falls within the legal definition of an international strait, versus lying within internal Canadian waters.
Since there are several different sea routes around northern Canada, with the question of which route might be used at any particular time depending on the prevailing ice conditions, there is no unique waterway that could be considered as a strait, de Boer said.
“No one is particularly clear where the Northwest Passage is,” he said.
And difficulties in defining what is meant by ice-free waters compound the problems, he said.
Needs significant use Moreover, under international agreements a waterway can only be considered to be an international straight, with complete freedom of access, if the waterway experiences “significant use,” a situation that has not yet arisen in the case of the Northwest Passage, de Boer said.
“According to the Canadian Coast Guard there were 11 transits in 2008. Three were Canadian Coast Guard and one was a Canadian pleasure craft,” he said. “In 2007 there were 12 transits.”
On the other hand, Canada does permit international transit through its waters and has formed an agreement with the United States on the use of icebreakers in Arctic waters. And one of Canada’s prime concerns, in maintaining sovereignty over what it views as its internal waters, is the country’s ability to impose Canadian environmental laws on people using the waters, de Boer said.
And since the waters in question are entirely within Canadian jurisdiction, an international commission of the type used for the Saint Lawrence Seaway would not be an appropriate means of waterway management, nor can the waters be considered as analogous to the Panama or Suez Canals, de Boer said.
Beyond 12-mile limit Commander James Kraska of the U.S. Naval War College told the Commonwealth North forum that the Northwest Passage involves waters that extend a long way beyond Canada’s 12-mile limit, the offshore limit that determines waters over which the country maintains complete sovereignty.
“The five or seven routes that comprise the Northwest Passage are not the Suez Canal. … The McClure Strait is 100 miles wide,” Kraska said. “Beyond 12 nautical miles on each side of the McClure Strait, that’s essentially exclusive economic zone water, in which high-seas freedoms apply.”
The Northwest Passage dispute should be resolved using international standards, through the U.N. International Maritime Organization, Kraska said, likening Canada’s claim over the Northwest Passage to a disputed claim by Libya over the Gulf of Sidra in the southern Mediterranean Sea, an area that Libya considers to be its historic waters.
“The problem with this, of course, is that if you depart from the Law of the Sea Convention, then there really are no rules,” Kraska said.
Bad analogy “I don’t think that drawing analogies between what Canada is doing with respect to the archipelago and what Libya is doing with respect to historic waters is necessarily a very apt comparison,” was de Boer’s restrained response. “My point with respect to the Northwest Passage is … that we don’t know exactly what it is and … it does not meet the definition of a strait.”
De Boer also referenced a long-standing disagreement between the United States and Canada regarding the boundary between the two countries in the Beaufort Sea. The dispute involves a 6,250-square-nautical-mile zone in which both countries have banned offshore work, even although the zone is thought to contain significant oil and gas resources.
These disputes are legal issues that will ultimately be resolved between two countries that enjoy friendly relations, de Boer said.
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