Final frontier: The Arctic Ocean up for grabs
Canada and the U.S. head up a list of nations struggling to take control of the Northwest Passage. But are they ready for the challenge?
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For hundreds of years the Northwest Passage (NWP) has been considered one the most elusive routes in the shipping industry. Promising faster shipping times and grandiose cost reductions, the waters are ultimately treacherous, with thick ice dampening the hope and dreams of many a ship owner.
That all changed in 2007 when a summer thaw and the onslaught of climate change finally opened up the area. Since then a number of vessels have managed to navigate the difficult passage. The most famous so far is the Nordic Orion, a Danish-owned bulk carrier that sailed the route in September 2013 and saved themselves an impressive $80,000 in fuel costs in the process. But its transit was not without controversy. Because despite 52 transits of the NWP being made in 2012 and 2013, the Orion was the first commercial line to pass through under the watchful and likely suspicious gaze of the Canadian government.
The five nations that encircle the Arctic Ocean (U.S., Denmark, Norway, Canada and Russia) have boundaries that currently extend 200 nautical miles from their respective coastlines. The resource rich sea in the centre remains tantalisingly unclaimed. As the ice continues to melt away, the commercialisation of the area is predicted to grow at a considerable rate. Pressure is mounting in each country for leaders to claim their territory, particularly in the U.S. and Canada. But is either nation likely to be able to rule the Arctic waves?
Internal or International?
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On the surface, Canada has the largest claim to the area. The country’s shoreline dominates the NWP. Canada says it has historic rights to the route, citing laws that suggest a large section of the NWP could be construed as “internal waters”. As such, no ship should pass through the area without the express consent of Canada. Nations with a vested interest in the area refute these claims, particularly the U.S., and China which has stated that under the United Nations Convention on the Law of the Sea (UNCLOS) the Arctic Ocean is a shipping commons and therefore free for all. Jackie Dawson, Assistant Professor at the University of Ottawa and Canada Research Chair in Environment, Society and Policy sees things differently. “I don’t think there is any question regarding the NWP. It is not and should not be considered an international straight.”
To keep what it believes is its birth right, the federal government filed cases with the UN Commission on the Limits of the Continental Shelf in December last year, applying to add 1.2 million square kilometres to the east coast offshore boundaries and including preliminary claims to the Arctic Ocean that are expected to step on U.S., Danish and Russian toes. At the submission, Environment Minister Leona Aglukkaq said that the North is “an essential part of Canada’s collective heritage and its future. Our government is committed to helping the North realise its true potential as a healthy, prosperous and secure region within a strong and sovereign Canada."
Whether or not Canada has the right to the NWP, Dr Ashok Roy, Vice President for Finance & Administration and Chief Financial Officer for the University System of Alaska, and Sourabh Gupta, Senior Research Associate at Samuels International Associates, believe that the country should be careful to claim control in the right way. “When the race to the Arctic Ocean materializes, Canada will have the greatest chance of success simply due to geographical proximity. Laying out port and related maritime infrastructure at points along the NWP will solidify its legal and physical claim to the waters. Nevertheless, if Canada is determined to designate legally the waters that constitute the passage as ‘internal’ it will find a rough reception internationally.”
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On February 6th this year Halifax federal government announced it had authorised the engineering design phase and a proposal that allows Irving Shipyard to build up to eight Arctic offshore patrol ships.
Author of International Law and the Arctic and Professor and Canada Research Chair, Michael Byers believes that in its quest to govern the passage, Canada is moving at a glacial pace. “Prime Minister, Stephen Harper promised ice-strengthened patrol ships in 2007. Seven years later the ships are still in design phase. In 2008, he promised a heavy icebreaker, and delivery of that ship is now scheduled for 2021. The PM sees the Arctic as primarily a domestic political issue, with lots of grand promises just before elections and no delivery.”
Centre for International Governance Innovation (CIGI) Senior Fellow, John Higginbotham agrees that the country must work faster if it wants to secure its position as Arctic leader. He asserts that the country should be investing a lot more. “Despite the lack of budget, this isn’t a time for fiscal prudence,” he says.
“If climate change keeps going the way it’s going we will be seeing a whole new maritime economy opening up in the next ten to 30 years. We need to be building an infrastructure, which should include icebreakers, ports, search and rescue, aids to navigation, and communication. The government are lagging behind.”
Bordering on hostile
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As the ice continues to recede, so border disputes are set to loom ever larger. All five countries with territory in the Arctic have clearly marked boundaries off their shores. But not all are universally accepted. A longstanding Canada/U.S. feud over the boundary in the Beaufort Sea is likely to cause problems as commercial and maritime law issues develop.
With heavy-duty polar icebreakers in development, a deep drafts port study currently being conducted by the Department of Transportation and Public Facilities, and Secretary of State John Kerry recently appointing an Arctic Representative to the area, it seems the U.S. is now gearing up to take its slice of the Arctic pie.
The country’s navy also recently released an updated Roadmap to the Arctic, which lists in detail how the country will be developing its capabilities in the area over the next 15 years.
Yet while there are signs of progress, experts say that the U.S., just like Canada, isn’t doing enough. Roy and Gupta explain: “The U.S. needs to provide an altogether higher level of funding to make up for its infrastructural deficiencies – both at sea and on shore.”
The country’s successful business in the Arctic also relies on them being able to persuade other nations of their rights to the area. “They need an infrastructure that is capable of enforcing sovereignty and criminal laws in its zone of the Arctic as well as respond expeditiously to seaborne disasters,” say Roy and Gupta.
“The country needs to ratify the Law of the Sea Treaty so that it can assume the authority to jointly lead international rule-making and regulation efforts. And they’ll need to settle the outstanding maritime jurisdictional dispute in the Beaufort Sea on the basis of best principles of international maritime law.” With the U.S. taking over from Canada as Arctic Council chair in 2015, will the country use its position to further its own interests?
Peace and progress?
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With the dispute over the Beaufort Sea still on going, America is traversing the NWP on shaky ground, working with Canada on a “don’t ask, don’t tell” policy and agreeing to disagree about who owns which part of the route.
But as the commercialisation of the passage grows and the lines start to blur, can we expect the countries to go head-to-head? Jackie Dawson isn’t sure. “There is an unspoken agreement between the countries for political reasons,” she says. “I think this is likely to continue and I don’t anticipate any major conflicts between them. I also don’t see a public agreement in the near future.”
Whether or not the two countries come to political blows remains to be seen, but Michael Byers doesn’t believe that there will be any problems clearly delineating borders when the time comes. “In the end, the matter will be resolved peacefully on the basis of science and international law.”
Roy and Gupta agree. “The Law of the Sea treaty has rule-based provisions to mark out national maritime jurisdictions in the Arctic region, as well as dispute settlement basis by way of which overlapping claims can be fairly arbitrated.”
Is the U.S. and Canada’s bickering just the tip of the iceberg though? With Russia declaring ownership of the Lomonosov Ridge, and Denmark expected to argue with this when it submits its claim later this year, boundary debates are unlikely to be resolved. Not least because the UN Commission has stated it expects to take up to 20 years to resolve the competing claims.
Yet with so many opportunities ready and waiting for the taking, is there a solution that will speed up the legal process and allow the Arctic to be divided fairly? Roy and Gupta think so. “If the Arctic littorals are wise, they will consensually band together and use the Arctic Council to lay down rules to conserve or regulate usage in these waters.”
Posted: March 6, 2014