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Between Strait and Sea

Ottawa’s Northwest Passage dilemma with implications for Alaska

The M/V Nordic Orion transported a load of coal from the west coast of Canada (Vancouver, BC) to Pori, Finland, through the Northwest Passage last fall. The M/V Nordic Orion is pictured above plying the waters of the Northern Sea Route, which it first traversed in 2010.

The M/V Nordic Orion transported a load of coal from the west coast of Canada (Vancouver, BC) to Pori, Finland, through the Northwest Passage last fall. The M/V Nordic Orion is pictured above plying the waters of the Northern Sea Route, which it first traversed in 2010.

© Nordic Bulk Carriers A/S

All are architects of Fate,
Working in these walls of Time;
Some with massive deeds and great,
Some with ornaments of rhyme.
                      —Henry Wadsworth Longfellow
                                 (1807-1882)

The opinions expressed herein are those of the authors alone and not of Samuels International Associates, Inc.,
the University System of Alaska, or the University of Alaska Fairbanks

During the second half of September last fall, a Danish-owned ice-class bulk carrier, the Nordic Orion, became the first large commercial vessel to traverse the Northwest Passage since the US tanker SS Manhattan in 1969. Embarking from Vancouver in Canada in early September, sailing in waters abutting Alaska and thereafter transiting these Canadian Arctic waters, the Nordic Orion deposited its cargo of 73,500 tons of coking coal at the port of Pori in Finland. For the Danish owner of the vessel, Nordic Bulk Carriers, the voyage proved to be another feather in its cap. In 2010, Nordic Bulk had become the first non-Russian company to sail the Northern Sea Route—spanning the Arctic coast of Russia—when it shipped iron ore from a port in Norway to China.

By traversing the Northwest Passage rather than steam along the traditional Panama Canal route, the Nordic Orion was able to shorten the distance of its voyage by one thousand nautical miles, enabling it to accrue significant fuel savings as well as haul an increased load of cargo. Transportation time was cut by four to five days. It is not without irony that the fuel and time savings—and, thereby, the lower carbon emissions—is the product of global warming which has opened up the viability of this route to commercial traffic in the first place. As such warming continues apace, the Passage—and Alaska’s Arctic shoreline—can expect to witness a gradual increase in frequency of such transits. The Northwest Passage has huge security and energy dimensions for Alaska.

Despite the historic nature of the Nordic Orion transit, the Northwest Passage is not expected to challenge the Northern Sea Route as the new gateway for Arctic-based transit anytime soon—if ever. Although the Arctic sea ice has lost half its area and three quarters of its volume over the past three decades, the Northwest Passage still remains a perilous route that is navigable only by a few specialist vessels for approximately two months a year. By contrast, the Northern Sea Route is generally open to traffic from late-July through mid-November and witnessed as many as forty-six vessel passages in 2012, at least fifty-eight in 2013. The Russian infrastructure build-up along the route is also markedly superior. Russia currently has sixteen deep water ports along its Arctic coastline, a host of search-and-rescue stations, and is constructing an airbase on Kotelnyi Island in the Siberian Arctic; by contrast, Canada lacks a single port along the Northwest Passage.

What the historic nature of the Nordic Orion transit is likely to challenge, however, is the Canadian government’s official contention that the water columns abutting Canada’s Arctic shoreline that constitute the navigable channel of the Northwest Passage is a part of the internal/inland waters of Canada. More to the point, that these waters and the Passage is not an international strait. The voyage of the Nordic Orion and future such transits in these gradually navigable waters is likely to belie this claim—in turn, placing limits on the exercise of Ottawa’s untrammeled sovereign jurisdiction in these waters and with connotations that extend all the way to the security of Canada’s maritime borders.

For Alaska too, as the Arctic ice sheet gradually recedes and important commercial and maritime law related developments assume greater importance, questions related to the broader ownership of the Arctic will loom ever larger. Northwest Passage-bound transit and maritime delimitation disputes will be at the forefront of this list, given the as yet unsettled Alaska-Canada maritime boundary delimitation dispute in the Beaufort Sea (at the entry/egress point of the Northwest Passage). Alaska would be well-served by keeping its ear to the ground—or rather sea—as the debate on Canada’s fidelity to the provisions of the Law of the Sea gradually unfolds.

The US Geological Survey has assessed that the Arctic accounts for 30 percent of the world’s undiscovered natural gas and 13 percent of its undiscovered oil. Because of this potential, China, as the world’s largest consumer and importer of energy resources, is arguing that under the United Nations Convention on the Law of the Sea (UNCLOS) the Arctic Ocean is a shipping commons in spite of its vast geographical distance from members of the Arctic Council (United States, Canada, Iceland, Russia, Denmark, Finland, Norway, and Sweden).
 

Law of the Sea and the Northwest Passage

A coastal state’s internal or inland waters cover all water and waterways on the landward side of the baselines of its territorial sea. As per UNCLOS, a coastal state is entirely free to set laws and regulate use, including resource use, in these waters. Further, it can assert every attribute of sovereignty in these waters, including the denial of passage to foreign flagged vessels. Such vessels possess no automatic “innocent passage” rights—let alone “transit passage” rights—within internal/inland waters. By contrast, UNCLOS devotes considerable attention to the regime of straits used for international navigation, including provisions devoted to the rights of foreign flagged vessels in these waters. Foremost among the rights afforded to foreign vessels (and aircraft) in international straits is the unimpeded right of transit passage, implying that the adjacent strait state cannot bar or suspend such passage or engage in activities that may have the practical effect of doing so, including demands such as prior consent/authorization for passage through these waters. This obligation extends to the right of passage of foreign military vessels too, including submarines which are not obligated to surface and display their national colors while in transit.

While the above functional element remains a core feature of UNCLOS’s straits passage regime, the Convention leaves it unclear as to what level of international navigation is required for a strait to be appropriately classified as an “international strait.” Intuitively, it would be usage of the strait, like the Nordic Orion transit and subsequent such usage, which will—or should— determine this classification.

It is not hard to see the logical culmination point of Nordic Orion-type transits through the Northwest Passage, insofar as it relates to the Law of the Sea rulebook. As a pattern of ice-class bulk shipping across the Passage gradually builds, it will increasingly be deemed to have assumed the characteristics of an international strait as per interpretation of UNCLOS’s classification—in turn, leading to an even greater flow of international maritime traffic that might or might not seek Canadian consent to traverse these waters. Furthermore, military warships too would follow, including submarines which would not have to surface or alert Ottawa of their presence during transit. Canada’s maritime security would be appreciably worse off. As mentioned previously, such right of innocent passage, passage that is non-prejudicial to the peace, good order, or security of the coastal state, as well as right of transit passage, is not available to foreign warships in the coastal state’s internal/inland waters, although they do retain innocent passage rights in the twelve nautical mile territorial sea that extends seawards from Canada’s archipelagic baseline.

The Canadian government will almost certainly beg to differ. Ever since 1973, barely a few years removed from the SS Manhattan’s transit through the Northwest Passage, Canada has held that these waters constitute internal waters under historic title and thus fall under full Canadian sovereignty. In 1986, following a controversial transit of the US Coast Guard icebreaker CGS Polar Sea, Ottawa, further, drew straight baselines around the Arctic Archipelago—in effect, breathing legal life into its internal waters claim. Bending ever so slightly to Ottawa’s insistence, the United States in 1988 made the rarest of exceptions to its rigid navigational freedoms mantra and acknowledged that future such voyages by US government, or government­chartered, vessels in these claimed internal waters would be undertaken with the consent of the Canadian government (without prejudice though to the US legal position vis-à-vis these Arctic waters). Further, by asserting visible acts of sovereignty on a recurring basis, Canada could stymie and resist any move to internationalize and classify the Passage as a strait in the years and decades ahead.

The Canadian argument is not without merit. There are, however, serious deficiencies with both its internal waters claim and the accompanying historical title claim. The latter, particularly, is especially weak given that demonstrating the burden of proof to display Ottawa’s exclusive jurisdiction—and the acquiescence of foreign states—over these waters for a sufficiently continuous period of time is a tall order. The historic title claim itself dates back to only 1973.

The internal waters claim appears at first glance to be more robust. Given the geographic contiguity and peculiarity of the archipelago, the general direction of the coast, and the proximate economic and livelihood interests involved, a straight baseline drawn by Ottawa that encompasses the archipelago would appear on the surface to be more tenable. Without discounting the fact that Canada enjoys a significant measure of jurisdictional control over the Northwest Passage, it does however bear noting that as per Article 8 of UNCLOS, when straight baselines are drawn around waters which were not previously deemed to be internal/inland, the foreign navigational right of innocent passage remains. Canada drew straight baselines only in 1985. By signing and ratifying the Law of the Sea convention thereafter, which was opened for signature in 1982, Ottawa became duty bound to afford innocent passage rights, free of prior consent/authorization requirements, to foreign flag holders transiting the Northwest Passage.

On the other hand, there is much to recommend in the Canadian government’s argument that the extremely shallow precedent of transit through the Northwest Passage ought not to raise the classification of the Passage to that of an international strait. All transits conducted so far have been either under strong Canadian protest or, as in the case of the Nordic Orion, under the regulatory oversight of Transport Canada and the Canadian Coast Guard. If usage of these waters is the yardstick to determine its classification, use of the Passage as a thoroughfare does not rise to the threshold of designating it as an international strait.
 

So Where Does Ottawa Go From Here

It is plainly obvious that the Northwest Passage has had a shallow history of usage as a functionally important route for international maritime traffic. It is equally obvious that as climate change increasingly renders the navigation of the Northwest Passage more feasible, more vessels—commercial and, perhaps, military—will traverse these waters. Insurance, once hard to obtain for Arctic voyages, is already becoming more readily available, although mostly in case of traffic navigating the Northern Sea Route. The increase in traffic through the route is expected to call into question Ottawa’s legal position in regards to the Passage and, by extension, to its larger fidelity to the law of the sea.

As a signatory to UNCLOS and a practitioner of maritime law in good standing, Canada retains an interest in safely navigating its way along the horns of this internal waters/international straits dilemma. That Ottawa might perhaps have a more persuasive international maritime law based case to make against its powerful neighbor to its south with regard to the delimitation of the as yet disputed boundary in the Beaufort Sea should make its continuing adherence to the provisions of the law of the sea even more compelling. Building up its port and shipping related infrastructure as well as providing essential services to commercial shipping along the Northwest Passage might be a useful first step to promote and vindicate the exercise of Canada’s sovereignty over these gradually melting waters. Alaska has vital interests in this issue ranging from resource depletion, global warming, habitat loss, and international conflict to other strategic interests.
 

Sourabh Gupta is a Senior Research Associate at Samuels International Associates, Inc., a Washington, DC-based strategic, international trade, and political advisory firm.

Dr. Ashok K. Roy is Vice President for Finance & Administration/Chief Financial Officer for the University System of Alaska and Associate Professor of Business Administration at the University of Alaska at Fairbanks.

This first appeared in the February 2014 print edition of Alaska Business Monthly magazine.

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