The Race for Arctic Sovereignty: Part I
by COHA Research Fellow Shantel Beach
Only a few short weeks ago, a U.S. presidential panel appointed by President Barack Obama proposed that the U.S. ought
to play a leading role among Arctic nations to establish international standards regarding various Arctic-related
initiatives. Meanwhile, Canada’s National Energy Board is gearing up to undertake a comprehensive review of the existing
safety and environmental regulations relating to offshore drilling in the Arctic’s Beaufort Sea. As both countries
direct their attention north, it seems only inevitable that the debate over sovereignty in the iciest region of the
world is about to heat up. COHA’s forthcoming three part series will investigate the tenets of the Arctic sovereignty
issue, and suggest how Canada and the United States can work together to secure their shared strategic interests in a
region of rising importance.
Part 1: The Canadian Position
Part 2: The U.S. Position
Part 3: Negotiating a Bilateral Solution
PART I: Canada’s Position
Even though Canada and the United States share a long history of cordial bilateral cooperation in trade and foreign
affairs, a lasting compromise has never been negotiated regarding the status of the Northwest Passage (a sea route
through the Arctic Ocean connecting the Atlantic and Pacific). Despite key common interests in the Arctic, both
countries continue to disagree about whether the icy, meandering waters surrounding Canada’s northern archipelago should
be considered Canadian territorial waters, or an international strait. As a result of global warming and the discovery
of vast oil resources in the region, the Northwest Passage increasingly holds the potential to accommodate commercial
shipping year round—a valuable alternative to reliance on the Panama Canal. As the race to secure rights, resources, and
strategic positions in the Arctic intensifies, perhaps the most efficacious way for Canada and the U.S. to achieve their
respective strategic interests in the Arctic would be to find a bilateral compromise.
First, it is necessary to investigate the claims of both Canada and the United States in order to contextualize the need
for compromise on the status of the passage. By highlighting some key issues in the ongoing dispute, it becomes clear
that Canada and the United States could each gain more from the Arctic if they worked as partners to promote their
common interests. While challenged slightly by the rising power of the Arctic Council—an intergovernmental body
consisting of eight countries (Canada, Denmark/Greenland/Faroe Islands, Finland, Iceland, Norway, Sweden, The Russian
Federation, and the United States)—there is still enough time to forge a lasting bilateral partnership between Canada
and the United States on this issue. Perhaps, through their cooperation, both may stand to gain power and authority
within the Arctic Council in the future.
Treading on Thin Ice
The 1969 and 1985 voyages of the U.S. vessels the SS Manhattan and the Polar Sea mark the first diplomatic conflicts
between Canada and the United States regarding the use of the Northwest Passage.1 According to Arctic policy expert Rob
Huebert, the SS Manhattan’s voyage “created considerable tension between the two countries,” which resulted in Canada’s
dispatching one of its icebreakers in order to assert its authority over the area.2 When the U.S. Coast Guard vessel
Polar Sea transited the passage 16 years later without Canada’s permission, the issue became more sharply defined as a
vanguard for Canadian nationalism. Because Canada emphatically argues that the Northwest Passage completely falls under
its flag’s sovereignty, it is paramount to Ottawa that this body of ice and water be considered territorial water under
international law. Perhaps best advocated by Canada’s former Secretary of State for External Affairs Joe Clark in 1985,
“Canada’s sovereignty in the Arctic is indivisible. It embraces land, sea and ice.”3
Upon looking at a map of the Arctic, one might be tempted to assume that the Northwest Passage naturally falls within
Canada’s territorial domain; however, given Canada’s rather weak assertions of its claim to effective control over this
territory, the government has experienced difficulty convincing others that the Northwest Passage is under their
control.i Throughout the course of history, Canadian policymakers have called upon a growing number of arguments to
substantiate their country’s ongoing claim to sovereignty over the northern archipelago.4 From historical title claims
to determining straight baselines at low watermarks, the Canadian territorial stake has been substantiated in a number
of ways.ii Due to the complex, and at times, possibly dubious nature of these claims, it becomes rather difficult to
discern what Canada’s core claim to the Northwest Passage truly is.
Discernable Boundaries?
Baselines basically determine how areas of the sea are measured through delineating all marine areas seaward of the
baseline to be “offshore” and all marine areas landward of the baseline as being “internal waters.” According to
Fisheries and Oceans Canada, “the normal baseline is the low-water line along the coast, islands, rocks and even
low-tide elevations as marked on large-scale charts officially recognized by the coastal state.” However, in Canada’s
case, because the coast is jagged and irregular, “drawing straight baselines joining appropriate points on the coast is
an accepted practice.”5 Straight baselines have largely shaped the way in which Ottawa has defined the limits of its
territorial waters.
According to international law, as set out by the 1982 United Nations Convention on the Law of the Sea (UNCLOS), most
nations recognize that territorial waters constitute a boundary of 12 nautical miles surrounding any country’s
coastline. Accordingly, within territorial seas, as defined above, states maintain full control over the water and
seabed, with the simple qualification being that other nations have an “innocent right of passage.” Included in these
provisions is an important clause noting that all “waters lying inland of the territorial sea” come under the full
control of the coastal state and are not subject to the aforementioned “innocent right of passage.”6 What this means
essentially is that bays, inlets, harbours, etc., falling within the parameters of a territorial sea can be definitively
controlled by the coastal state in question. Although these provisions appear to be relatively straightforward, they are
complicated by Canada’s jagged coastline and the fluid relationship between land and ice in the North. As such, in order
for Canada to effectively assert its sovereignty over the Northwest Passage, it needs a discernable boundary upon which
to stake its claim.
When, in 1985, Canada affirmed that it would employ a method of delineating its sovereign waters using straight
baselines (a technique authorized by the International Court of Justice), it caused an incident between Canada and the
United States. Directly following this event, a luke-warm Arctic Cooperation Agreement was entered into by Canadian
Prime Minister Mulroney and American President Reagan, pledging to deal with Arctic conflicts on a “case-by case” basis.
Essentially this document was little more than an agreement to disagree, but it temporarily quelled political
frustrations on both sides of the border and remains in effect to this day. Unfortunately this framework has not
succeeded at mitigating each of the neighbors’ conflicting claims to control over the Northwest Passage.
As the Ice Melts
Because Canada does not necessarily qualify for increased authority over its island territory as an archipelagic state
according to UNCLOS provisions (Article 46),7 its claims by default have relied heavily on other provisions within the
document. Article 23, for instance, allows for regulation of marine pollution in ice-covered areas within a country’s
exclusive economic zone.iii As such, Canada has framed much of its sovereignty protestations in terms of its
self-perceived mandate to legislate environmental protection in ice-covered areas. Drawing on this interpretation,
Canada initiated the Arctic Waters Pollution Prevention Act of 1985, which asserted that Canada had jurisdiction over
waters 100 miles from the coast in order to prevent pollution.8 According to experts in the field of Arctic policy
issues like Donald McRae, this approach has been as unclear as any other. He writes that “a potential difficulty…is a
lack of consistency in the way the Canadian government has over the years promoted and advocated the claim.”9
Unfortunately, as the ice melts to expose greater expanses of water, so too does Canada’s claim to sovereignty based on
“regulating marine-pollution in ice-covered areas.” Information from the Canadian Ice Service shows that between 1969
and 2004 the amount of ice has decreased by 15 percent in the Eastern part of Canada’s Arctic Archipelago and 36 percent
in the Western Arctic.10 As can be seen in the ironic academic work titled, “Canada’s Arctic Sovereignty on Thinning
Ice,”11 Canada’s environmental claims are slowly melting away. Ottawa needs a like-minded partner in its quest to
protect the Arctic environment, and hopefully it will find it in the United States. In recent years there has been a
shift in policy direction toward increasing Canada’s military presence in the northern territories in order to
demonstrate effective control over the controversial Northwest Passage. Instead of working toward a comprehensive
bilateral agreement with the United States based upon shared environmental concerns, Canada has squarely insisted on
exercising unilateral sovereignty over the region instead.
Use It or Lose It
Prime Minister Stephen Harper’s “use it or lose it” approach to the Arctic, first announced in 2007, has redefined the
nature of Canada’s sovereignty claim. By increasing its military presence in the region, and emphasizing the Arctic’s
high priority on Canada’s foreign affairs docket, Harper has sought to project an increased level of effective control
over the area in question. In 2004, and again in 2009, Canada held its largest-ever Arctic military exercises to flex
its military muscle.12 In Harper’s own words, “The Government of Canada [must be] able to be anywhere, to respond to
anything, if necessary—anything, from foreign incursion to emergency—and that is why we [the Canadian government] have
been boosting military defence assets, to ensure we take responsibility for our territory.”13 One argument serving to
further bolster the “use it or lose it” claim is that Canada’s northern territories have been effectively occupied for
years by the country’s Inuit peoples. According to a senior official with Canada’s Department of Foreign Affairs and
International Trade, Canadian indigenous peoples inhabiting the North “in the winter have always treated the ice exactly
the same as the land,” and thus have relied on the Northwest Passage as part of their sovereign territory.14 If accepted
by the international community, this apparent reality would in effect strengthen Ottawa’s ability to claim effective
control over the area.
Canada Stands Alone
Even in light of many strong bids that should substantiate its Arctic sovereignty claim, Canada has been unable to
secure significant international support for its strong convictions. According to Rob Huebert, Russia has been the only
historical supporter of the Canadian claim, but has rescinded its stance, and now affirms that the Northwest Passage is
an international strait.15 If Canada seeks to truly control and protect the Northwest Passage, it needs a partner who
can support its claims on the Arctic Council.
While the Arctic issue in Canada has a historical tendency to fade out of focus and then flare up in the eyes of the
public, Canada’s primary motivation in asserting sovereignty over the region has remained relatively unchanged. Canada
seeks to preserve the fragile Arctic environment for high-minded purposes. Despite expert Franklyn Griffiths’ argument
that Canadians have a propensity to “oscillate between alarm and passivity, neither of which lends itself to sustained
action,”16 Canada has at least retained a discernable stance in favour of strong environmental regulations to protect
its unique northern ecosystem. The memories of past environmental disasters remain vivid in the minds of most Canadians.
In 1989, for instance, the single-hulled oil-tanker Exxon Valdez spilled more than 11 million gallons of oil into the
Prince William Sound.17 Considered to be one of the largest environmental disasters in the Arctic region, it served to
remind both Canadians and Americans alike that accidents happen, and that the consequences are momentous. In light of
the more recent environmental disaster in the Gulf of Mexico, it is no wonder that environmental protection of oceanic
waters remains a top priority for both countries.
Shared Concerns
According to Rob Huebert, the Canadian sovereignty question primarily revolves around the issue of “power and control to
set rules about how the Arctic will operate.”18 After exploring the U.S. claim, it becomes clear that there is little
evidence to show how Canada’s planned approach to assert sovereignty and control the Northwest Passage would be contrary
to U.S. interests. According to acclaimed journalist Levon Sevunts, the melting of the Northwest Passage could cut 5,000
nautical miles off the shipping route between European markets and Asia, prompting a large number of ships to seek
passage.19 In the context of the Canada-U.S. relationship, high environmental standards ought to be considered a common
goal, as an environmental disaster would profoundly affect both countries. If the Northwest Passage were not to be
deemed Canadian territory, it would then most likely fall under the jurisdiction of international environmental
regulations. According to legal experts Richard D. Parker and Zagros Madjd-Sadjadi, this presents challenges: “the
problem arises when regulation differs from enforcement.”20 One may be right to speculate that because of the relative
weakness of international enforcement mechanisms, the Canadian government might be better equipped to enforce rules
governing the use of the Northwest Passage.
Looking South
Given the complexity of Canada’s claim to sovereignty over the Northwest Passage, the relative simplicity and nature of
the American claim stands in stark contrast. In short, the United States argues that the Northwest Passage is an
international strait connecting the Pacific and Atlantic oceans and therefore falls under no one country’s jurisdiction.
While simpler, this stance proves to be equally as problematic as the Canadian claim. Part two of this monograph will
explore the U.S. position, and delve deeper into the question of Arctic sovereignty.
ENDS