There has been much learned and scholarly discussion of the arguments that have been put forward by the States involved in the dispute over the Northwest Passage. My aim in this short paper is not to delve into these technical legal arguments, but rather to tackle two larger questions that I believe are critical to the debate over the status of the Arctic waters. However, I would like to preface this discussion by clarifying two key points.
Firstly, the UN Convention on the Law of the Sea (UNCLOS) provides two separate legal regimes, one for the water column and one for the marine seabed. The Northwest Passage is an issue that concerns the Arctic waters. It is therefore a completely separate issue from that of the continental shell which is attracting so much media attention at the moment. Furthermore, the Northwest Passage is well within Canada's exclusive economic zone--a zone in which Canada exercises absolute control over the resources, including fish stocks. Article 56(1) of UNCLOS provides that in its exclusive economic zone (which does not extend beyond 200 miles from the baselines), the coastal State has 'sovereign rights for the purpose of exploring, conserving and managing the natural resources'. The Northwest Passage debate or dispute is, therefore, strictly about the right to navigate through those waters.
Secondly, barring the adoption of a specific multilateral Arctic treaty, international law provides a choice between only two possible navigational regimes for the Northwest Passage and these two regimes are poles apart. The Passage is either subject to the Canadian legal regime or it is governed by the international legal system. It is Canada's position that the waters lying within the Archipelago are Canadian historic internal waters over which Canada has full and exclusive control, including the right to control access. Indeed, under the Law of the Sea, internal waters are assimilated to land territory. Canada has as much legal authority over its internal waters as it does over downtown Toronto.
Washington's position, which is probably shared by the European Union and perhaps other States, is that an international strait--an international highway--cuts through the Canadian Arctic Archipelago. The international legal regime governing straits, under Part III of UNCLOS, is one of guaranteed freedoms: freedom of navigation, as of right, for the ships of all nations (privately and State owned); a right for submarines to transit submerged; and a right of overflight for every aircraft in the air corridor above the strait.
With these two critical points in mind, let me now turn to the first issue which I feel clouds the debate over the Northwest Passage--the nature of the dispute. Is the Northwest Passage a bilateral issue? Should it be resolved bilaterally? Is Canada's only hope to get Washington 'on board'?
I firmly believe that Canada and the United States are allies in the quest for a practical and responsible navigational regime in the Arctic. Unfortunately, Washington is often cast as Canada's principal adversary and there are some elements that, if not fully explained and properly understood in their context, can lend support to that characterization. For instance, when in 1969 the US government sent the Manhattan, an ice-strengthened oil tanker, and in 1985 sent the Polar Sea, an American Coast Guard icebreaker, through the Northwest Passage these transits were widely perceived as a direct challenge to Canadian sovereignty and caused a public outcry. But in fact the two continental partners have a long history of collaboration in the Arctic and have found ways to set aside their legal differences to make things happen, to move forward.
One of the key aspects of this long-standing commitment to cooperation is the 1988 Arctic Co-operation Agreement in which the two parties agreed to disagree and then proceeded to set out a regime governing transits by American icebreakers engaged in research. …