The Northwest Passage

Abstract

A series of seven channels that link the Atlantic and Pacific oceans at the top of North America, referred to as the Northwest Passage, has been declared by the government of Canada to be internal waters. The passage has long been considered potentially lucrative and commercially promising because it represents a route that is shorter by yoookm for vessels transporting cargo between Europe and Asia and could represent a new source of undiscovered natural resources. The difficulty is that the Northwest Passage is frozen and impassable for surface vessels most of the year. Even in the summer months, the passage is only open for a few weeks to ice-strengthened vessels, whose captain and crew must have nerves of steel.However, scientific evidence stemming from global warming is suggesting the possibility that the passage will be ice-free for many more weeks and possibly months during the year, thus leading many to envisage a new, international, commercial shipping channel. With this possibility come a number of issues, not the least of which are environmental concerns for Canada. In addition, ice-breaking, navigational support, extraction of resources, and monitoring and enforcement of national and international laws are all issues that stem from an ice-free (or freer) passage.Above and beyond these practical issues is the very emotional and complicated tie Canadians have with their Arctic and the Northwest Passage. The passage has long been the subject of sagas and epic journeys and is part of the Canadian identity. An ice-free passage could alter the degree of Canadian control of the passage as there are pressures to designate it an international strait. Many believe that if the passage becomes an international, commercial thoroughfare, Canada must necessarily lose its over the passage as well as a piece of its collective identity.The current legal conundrum posed by the passage is that while Canada maintains it falls within historic internal waters, which gives it the exclusive right to decide which ships may and may not enter, the US maintains it is not waters and that the passage is an international strait and therefore free access must be automatically and necessarily granted to all vessels entering it. It is universally recognized that the arctic waters are Canadian; the issue is the degree of control Canada may exercise.The October 2004 speech from the throne1 calls for the first-ever comprehensive Northern Strategy that could, among other things, tackle this issue of the passage once and for all.2 The question is what Canada should do if the passage becomes ice-free, given the practical concerns regarding commercial shipping and the deeply held Canadian conviction that the true North [remain] strong and free. The purpose of this paper is to provide some answers to this question. Both the US and Canada have legal arguments that find support in cases from the International Court of Justice (ICJ). All evidence suggests that a strictly legal solution to the passage is unlikely, hence the importance of finding an alternative way forward.To date, there have been many suggestions that can be grouped into two schools of thought. However, neither framework solves both the practical issues as well as the more emotive issue: the best advice from both must be considered.The first conceptual framework, which I call the sovereignty first and foremost school, assumes that Canada's is tied directly to the ice. Franklyn Griffiths refers to this as the sovereignty on thinning ice theory.' According to this way of thinking, any solutions or suggestions regarding the passage must have as their end objective the solidification of Canada's total legal control. The second framework, the sovereignty to one side framework, holds the issue constant, as it were, in order to concentrate on the more practical issues associated with an ice-free passage such as protecting the environment, ensuring the security of Canada and the North American continent, facilitating navigation, breaking ice, harvesting and protecting raw materials and resources, and monitoring and enforcing national and international laws. …