Academic journal article Canada-United States Law Journal

Global Warming Heats Up the American-Canadian Relationship: Resolving the Status of the Northwest Passage under International Law

Academic journal article Canada-United States Law Journal

Global Warming Heats Up the American-Canadian Relationship: Resolving the Status of the Northwest Passage under International Law

Article excerpt

ABSTRACT

Global warming is turning the hypothetical Northwest Passage into a reality. Shipping that utilizes the Northwest Passage can save over 4000 miles in travel, with the attendant economic benefits. However, the legal status of the Northwest Passage, in particular the portion of the Northwest Passage which cuts through the Canadian Arctic Archipelago, remains indeterminate and is a source of contention between the United States and Canada. Canada takes the position that the Northwest Passage is internal Canadian waters, while the United States takes the position that the Northwest Passage constitutes an international strait. While these two positions have strengths and weaknesses, it is likely that the two nations will continue to defer a final resolution of this issue and either continue with the status quo or seek a diplomatic solution.

Introduction

On September 14, 2007, the European Space Agency announced that analysis of satellite imagery showed that the accelerating shrinkage in ice cover had opened up the Northwest Passage, a "short cut between Europe and Asia that had been historically impassable." (2) Using the Northwest Passage had previously been considered commercially impractical due to multi-year pack ice that rendered navigation hazardous or impossible. (3) However, lured by the savings of almost 4000 miles compared to the Panama Canal route, international shipping is already attempting to use the Northwest Passage. (4) These developments inject new tension into the disagreement between the United States and Canada over the status of the Northwest Passage under international law.

Canada takes the position that the Northwest Passage constitutes internal Canadian waters, which gives them broad authority to regulate and restrict maritime traffic through the Northwest Passage. (5) In contrast, the United States takes the position that the Northwest Passage constitutes an international strait, with international shipping having the right of transit passage. (6) While it is currently unlikely that either the United States or Canada would be willing to submit this dispute to an international tribunal, the dispute in the Northwest Passage showcases the difficulty that even closely allied neighbors can face in protecting their own interests under international law.

Part I of this article provides a historical overview of the Northwest Passage and prior disputes between the United States and Canada regarding the Northwest Passage. Part II analyzes the development of international law relevant to the Northwest Passage dispute. Part III analyzes the strengths and weaknesses of the positions held by the United States and Canada. Part IV will conclude by examining the practical limitations on resolving this issue through an international tribunal.

I. The History of the Northwest Passage

A. Geographical Background

The Northwest Passage refers to the body of Arctic water that connects the Atlantic and Pacific oceans along the northern coast of North America. (7) It stretches from the Bering Strait in the west, runs along the northern coast of Alaska and Canada, and then weaves through the Canadian Arctic Archipelago until it exits through the Davis Strait and Baffin Bay in the east. (8) Since European colonization of North America began, explorers have sought a usable route around the northern coast of North America. (9) However, arctic weather conditions created insurmountable barriers for early explorers, particularly the multi-year pack ice common in the waterways that did not melt during the summers, but instead built up year after year. (10)

B. Successful Navigations of the Northwest Passage

The first successful transit of the Northwest Passage took three years of hard sailing and was completed by Roald Amundson in 1906. (11) In the wake of this accomplishment, the Canadian government made a formal claim to possession of the lands and islands within the Northwest Passage using a "sector" theory of sovereignty. …

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