Who Controls the Northwest Passage?

By Byers, Michael; Lalonde, Suzanne | Vanderbilt Journal of Transnational Law, October 2009 | Go to article overview

Who Controls the Northwest Passage?


Byers, Michael, Lalonde, Suzanne, Vanderbilt Journal of Transnational Law


ABSTRACT

From Martin Frobisher in 1576 to John Franklin in 1845, generations of European explorers searched for a navigable route through the Arctic islands to Asia. Their greatest challenge was sea-ice, which has almost always filled the straits, even in summer. Climate change, however, is fundamentally altering the sea-ice conditions: In September 2007, the Northwest Passage was ice-free for the first time in recorded history. This Article reviews the consequences of this development, particularly in terms of the security and environmental risks that would result from international shipping along North America's longest coast. It analyzes the differing positions of Canada and the United States with respect to the legal status of the waterway and argues that the end of the Cold War and the rise of global terrorism have changed the situation in such a way that the Canadian position--that the Northwest Passage constitutes Canadian internal waters subject to the full force of Canadian domestic law--actually coincides with U.S. interests today, as well as the interests of other responsible countries and shipping companies.

TABLE OF CONTENTS

   I. INTRODUCTION

  II. CLIMATE CHANGE AND INTERNATIONAL SHIPPING
      A. Climate Change, Science and Sea-ice
      B. Why Ships Will Come

  III THE LEGAL DISPUTE: 1880-1985
      A. The Sector Theory
      B. The SS Manhattan
      C. Arctic Waters Pollution Prevention Act
      D. Historic International Waters
      E. USCGC Polar Sea
      F. Arctic Cooperation Agreement

  IV. THE LEGAL DISPUTE: 1986 TO THE PRESENT

   V. WAS THE NORTHWEST PASSAGE AN INTERNATIONAL
      STRAIT BEFORE 1986?
      A. Submarines in the Northwest Passage

  VI. PROTECTING THE ARCTIC MARINE ENVIRONMENT
      A. The Need for National Jurisdiction
      B. Article 234 and International Straits

 VII. SECURITY CHALLENGES: FROM THE SOVIET UNION
      TO GLOBAL TERRORISM

VIII. CANADA'S ENFORCEMENT CAPABILITY IN THE
      NORTHWEST PASSAGE

  IX. DIPLOMATIC OPTIONS

   X  U.S. NAVIGATION INTERESTS
      A. The Effect of Recognizing Canada's Claim

  XI. MODEL NEGOTIATION ON NORTHERN WATERS

I. INTRODUCTION

"Where has all the ice gone?" Joe Immaroitok asked. (1) It was October 24, 2006, and he was staring at Foxe Basin. A shallow expanse of ocean the size of Lake Superior, the basin usually freezes over by early October, enabling the Inuit to travel across to Baffin Island to hunt caribou. That winter, the town council in Igloolik was considering chartering an airplane to take the hunters across the unfrozen sea. (2)

A few hours before we spoke with Immaroitok, we had sailed through Fury and Hecla Strait on board the CCGS Amundsen, Canada's research icebreaker. All we saw were a few chunks of thick, aquamarine "multiyear" ice--formed when ice survives one or more summers and new ice accretes to it. The chunks, which had floated down from higher latitudes, were easily avoided. The previous day, we had passed through Bellot Strait--the first ship ever to do so in October. We were 350 miles north of the Arctic Circle, but there was no ice.

The two straits are part of the Northwest Passage, the so-called "Arctic Grail." (3) From Martin Frobisher in 1576 to John Franklin in 1845, generations of European explorers searched for a navigable route through the Arctic islands to Asia. (4) Many of them--including Franklin and his men--died in the attempt. (5) Their greatest challenge was sea-ice, which has almost always filled the straits, even in summer. William Parry spent the summers of 1822 and 1823 waiting for the ice to clear from Fury and Hecla Strait. (6) Although the strait is named after his ships, he never made it through. (7) Leopold M'Clintock, dispatched by Lady Franklin to search for her husband on King William Island, tried six times to penetrate Bellot Strait during the summer of 1858 before continuing his journey by dogsled. …

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