The Northwest Passage in Transit

Abstract

A CONSTRUCTION OF SOUTHERN MINDS, the Northwest Passage has long been the site of exploration in reality and in imagination. This article is an exercise in the imagination. For gritty detail on navigation in polar waters you will have to look elsewhere. What I am about to consider is not the Northwest Passage and what is being done there, but rather its changing context and the elements of an alternative construction that might now be put on it. For some decades the waters of the Canadian Arctic archipelago have been construed largely in terms of conflict between a coastal state, Canada, which would like to exercise exclusive jurisdiction, and major maritime powers, principally the United States, whose chief aim is to maintain freedom of navigation. This frame of reference is proving to be not that well suited to the requirements of emergent collective action in the circumpolar north. The received thinking is also being overtaken by far broader developments, the combined effect of which is very difficult to discern. In an era of global change the Northwest Passage is not exempt: it and most everything connected with it is in transit from a familiar past to an indeterminate future. In hopes of contributing to the search for better ways of doing things together in the Arctic, I will briefly explore the Northwest Passage for an alternative construction more in keeping with the times. But first, the received thinking.STATE-CENTRISMIn the standard view, the Northwest Passage is an arena for interstate conflict and accommodation in the exercise of rights and obligations under international law. Nation-states are the be-all and end-all in this perspective. They ultimately make the law and have a near monopoly of representation before it. Civil society, those most immediately affected by the evolution and application of the law in specific circumstances, and individuals all lack presence and personality.Where the Passage is concerned, states are divided over the interpretation of the law. Canada's assertion is one of exclusive jurisdiction or sovereignty over the waters of the Canadian archipelago, a claim largely founded on the right to draw straight baselines around the outer perimeter of the archipelago to delimit the territorial sea, behind which internal waters lie and no right of innocent passage exists. In announcing its intention to establish straight baselines in September 1985, Canada, it should be noted, lifted its prior bar on the jurisdiction of the International Court of Justice (ICJ) over its sovereignty claim. The United States, for its part, claims that the varied waterways of the Canadian archipelago, which together make up the Northwest Passage, constitute an international strait in which rights of transit apply, as do certain flag-state obligations under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) for state surface vessels, submarines, and aircraft, together with commercial vessels.The Canadian state believes that drawing straight baselines around the archipelago changes nothing: the waterways in question have always been internal to Canada; they have been used by Inuit, now of Canada, since time immemorial; and they have been sailed only infrequently by the surface vessels of foreign states - most notably in 1969 and 1985 by the United States icebreakers Northwind and Polar Sea - without a prior request for Canadian permission. The United States, on the other hand, is convinced that Canada's action signals a change: a unilateral act to close an international strait would provide a precedent for archipelagic and coastal states to follow suit, thereby constraining worldwide freedom of navigation and the mobility of United States naval forces in particular.Eleven years ago, in January 1988, Canada and the United States reached an agreement on icebreaker navigation, the provisions of which applied to the waters of the Canadian Arctic archipelago.(f.1) The Arctic Cooperation Agreement ensured that 'all navigation by U. …