Introduction
‘It is highly unlikely that uninterrupted surface passage from the Labrador Sea to either the Arctic Ocean or the Beaufort Sea, or vice versa, will ever be a reality’ (Head Reference Head1963–1964).
Pierre Trudeau's special advisor for foreign policy matters, Ivan Head, could have hardly seen almost 50 years into the future when he declared in 1963, that the fabled Northwest Passage (NWP) would never open for commercial navigation. 45 years ago, the global threat facing Canada, and the rest of the world, was not climate change but potential annihilation by means of a nuclear exchange between the Soviet Union and the United States.
While the cold war has wound down and attention has shifted focus away from superpower confrontation, the dream of John Cabot, Jacques Cartier and Henry Hudson has become a reality due to forces they probably never imagined. Global climate change and the subsequent melting of the Arctic ice cap has allowed commercial vessels to transit once ice choked straits, bays and passages to open seas for at least a few months out of the year. The sudden access of this fabled trade route may pose dilemmas and raise tensions in ways not considered in years past when safely navigating the passage was still the stuff of legend. Indeed global warming may have opened a Pandora's box in the Arctic as Arctic powers scramble for resources, territory and navigation rights (Borgerson Reference Borgerson2008).
In late summer 1969, a converted oil tanker, Manhattan, made a transit through the passage following the discovery of oil at Prudhoe Bay, Alaska. The voyage of Manhattan, an American vessel, was a private venture sponsored by Humble Oil Company in an attempt to determine the feasibility of commercial oil shipments through the passage (Elliot-Meisel Reference Elliot-Meisel1999). Officials at Humble Oil requested Canadian assistance with the voyage. The Canadian coast guard ship John A. Macdonald escorted Manhattan with a Canadian liaison officer aboard serving as Arctic navigator. The request and subsequent assistance was viewed by Ottawa as an acknowledgement of Canada's sovereignty in the region.
Canadian Arctic claims were secure for years in large part because of the environment. The hostile conditions of winter in the Canadian north served as a sufficient deterrent for exploitation and settlement by outside interests. Exploration of the region has been continuing since the days of Hudson and Cartier with mixed results. As late as the mid-20th century explorers had difficulty in the region, yet fewer than a hundred years later the melting of ice and permafrost may provide greater encouragement to explorers (both for science and profit) to linger in the north for longer periods.
And as the lands and waterways of the Arctic have become more accessible the issue of Canadian sovereignty in the Arctic, once taken for granted, has moved to the forefront of international concern. At stake are rights and access to minerals and potential reserves of petroleum and natural gas and perhaps more importantly navigation rights of new waterways and sea routes.
This is not a new issue. During the early decades of North American exploration, California was thought to be an island and the Sea of Cortez merely a strait that could be navigated. Maps produced for almost two centuries depicted the island of California and many attempts were made to sail around the entire ‘island’ only to be thwarted when explorers reached the northern most point of the Sea of Cortez in present day Mexico. In the case of the north, as the ice retreats maps will be redrawn and new arguments will emerge over sovereignty and resource rights.
The present paper examines the implications of global climate change on this strategically important route, the nations concerned and involved in disputes with Canada over borders in this region, and the potential impacts in terms of commerce, economics, geopolitics and national security. While we recognise that others have examined this important area we feel this is a critically important topic worthy of continuing examination and review especially as governments in the involved nations are subject to change and the environmental concerns begin to carry more weight than ever with the citizenry of the affected nations.
The northwest passage
At the heart of the sovereignty matter is the clearance of the fabled NWP. When early 16th century explorers discovered that Columbus’ new world was not China or India, the search began for a way around the newly discovered land mass. Henry Hudson thought he had found the entrance to the passage in 1609 when he attempted to sail up the river that bears his name. Samuel de Champlain thought he had found the entrance to the passage in 1603 when he first sailed up the St. Lawrence River. Attempts to locate and successfully navigate the passage continued through the early 20th century. The completion of the Panama Canal rendered many 20th century expeditions useless given the costs involved and the hostile climate of the Arctic north.
Yet with the retreat of the Arctic ice pack due to global climate change in recent years, navigation of this route by surface vessels has become a reality. Given the controversy surrounding territorial claims in the Arctic itself, particularly the Canadian-Danish dispute over Hans Island, it is interesting to note the lack of argument over Canadian ownership of the passage. While part of the reasoning behind this lies in legal precedent and historical basis, there are ulterior motives at play regarding this issue; those motives are in large part geopolitical.
The passage will become an area of greater interest to policymakers and strategists in Ottawa, Washington, London, Moscow, Beijing, Tokyo and other world capitals. Borgerson (Reference Blanchfield and Boswell2008) points out that should warming trends continue, the sea ice melts and becomes thinner in composition ‘the Arctic will become like the Baltic Sea, covered by only a thin layer of seasonal ice in the winter and therefore fully navigable year-round.’ The primary reason for the passage to gain recognition as an important area is commercially based. As the ice pack retreats and the waters of the Canadian Arctic become increasingly navigable, an inherent advantage moves to the forefront of economic consideration: by transiting through the passage rather than going through the Panama or Suez Canals, European markets suddenly become 7000 km closer to Asian exporters. As cheaply manufactured Asian goods flood European markets, pushing out more costly domestic European and North American imports, world economies could be impacted as a result and there could indeed be a return to the protectionist economic policies that were prevalent in the interwar period between World War I and World War II.
Legal aspects
Since the explosion of exploration in the new world began at the end of the 15th century until the early 20th century, when national claims over territory had largely stabilised, legal claims over territorial sovereignty in north America have been the subject of debate, conjecture and, in extreme cases, armed conflict. For so long as territory has remained inaccessible the conflicts, legal or otherwise, have been relatively benign. But as climate change has allowed for increased access to territory, the issues relating to sovereignty have again emerged much like the land hidden beneath melting glaciers.
Several considerations should be addressed regarding Canada's sovereignty claims in the Arctic. The areas we wish to address relate to rights of navigation, claims on land masses and how the treaties governing Antarctica might be of use in resolving some of the issues currently or potentially facing the Arctic nations of the world and Canada specifically.
Admiralty law
The single most important issue relating to Canadian sovereignty in the Arctic is ocean navigation. The 1982 United Nations Convention on the Law of the Sea (UNCLOS), serves as a ‘basic framework for the oceans’ (McRae Reference McRae2007). Most nations recognise that the waters within a 12 nautical mile (nm) boundary of a nation's coastline constitute territorial waters.
Over the waters of the territorial sea, a state has full sovereignty in respect of both the water column and the seabed. That is to say the territorial waters of a state are just like its land territory. But there is an important qualification. There is a right of innocent passage through the territorial sea. Any waters that lie inland of the territorial sea (bays, inlets, harbours etc) are known as internal waters and are subject to the full sovereignty of the coastal state with no associated right of innocent passage through them (McRae Reference McRae2007).
Special rules cover archipelagos in international law. The waters within the archipelago may be considered archipelagic waters and subject to more controls than would be true of territorial seas but fewer than for internal waters. For example, the right of innocent passage would be conferred to ships traversing the waters (Agoes Reference Agoes, Rothwell and Bateman2000: 148). However, to be covered by this rule, a state must be defined as an archipelagic state and Canada does not meet the definition as given by Article 46 of UNCLOS (LeGresley Reference LeGresley1993).
Further definitions expand the control a sovereign state has over the oceans.
Beyond the territorial sea is the 200 nautical mile exclusive economic zone (EEZ), where a state has exclusive rights of management and exploitation over the resources both of the water column and of the seabed or continental shelf. . . A state also has some rights to control marine pollution from other vessels with its EEZ although, again, only in accordance with international standard (McRae Reference McRae2007).
An important piece of admiralty law that bolsters Canada's Arctic sovereignty claims is Article 234 of UNCLOS. This provision is informally known as the ‘Arctic exception.’ Article 234 ‘permits coastal states to regulate to prevent, reduce or control marine pollution in ice-covered areas with its exclusive economic zone – that is within 200 nautical miles of its coast’ (McRae Reference McRae2007). As the ice continues to melt and the Arctic Ocean becomes increasingly navigable, international challenges on this matter may well arise. This will reduce the ability of Canada to enforce tougher environmental laws than are internationally promulgated. However there is one very important consideration regarding UNCLOS. It has yet to be signed by one very significant maritime nation, the USA.
New land masses
As the Arctic ice continues to melt, previously undiscovered islands are emerging that were hidden under the ice. The possibility exists that such discoveries will extend Canadian territory northward and planning for this contingency may be important to policymakers in Ottawa. If any disputes do arise over new land masses the interested parties will no doubt examine the way in which the dispute over Hans Island is being handled.
Hans Island, situated between Greenland and Ellesmere Island, has been the subject of a continuing debate with Denmark for decades. The international boundary between Ellesmere Island and Greenland was established in 1973 without settling the issue of Hans Island. Both countries have done an exceptional amount of military posturing over the disputed territory in recent years. ‘In 2002 and 2003, Danish navy ships visited the island and planted a Danish flag. Canadian forces did likewise in 2005, including a secretive and controversial visit by then-Defense Minister Bill Graham’ (Cushman Reference Cushman2007).
Although Hans Island is tiny, only 1.3 km2 in size, the issue regarding its possession is huge. Although Ottawa and Copenhagen agreed in September 2005 to continue exploring a diplomatic resolution to the situation the possession of this island has greater implications regarding exploration and resource exploitation. These issues have greater relevance in cases in which emerging land masses are concerned and in which nations decree their interests lie as the Russians have done with their claims to the Lomonosov Ridge. Although the Russian claim was initially rejected on the basis that the ridge was an extension of Russian continental territory, they have been allowed to resubmit the claim with stronger evidence (BBC News 2007).
It should also be considered that there are unconfirmed reports of an island that is located at 83°42′ N, which is approximately 35 m long and of unreported width (San Francisco Chronicle 17 June 2004). lying just north of Greenland. This suggests that still more islands may be found in the frozen wasteland as the ice retreats. Indeed, should new land masses be discovered as the ice caps retreat, more disputes similar to the Hans Island disagreement or claims such as the Russians for the Lomonosov Ridge are likely to occur.
And even though the EEZ can be drawn based on low water mark, the requirement is that the land mass must be a natural formation jutting out of the water during high tide to be considered an island in the first place (UNCLOS 1982: VIII, 121, paragraph 1). Furthermore, a rock that juts out of the ocean is not an island if it ‘cannot sustain human habitation or economic life of their own’ (UNCLOS 1982: VIII, 121, paragraph 3). Rising sea levels threaten to submerge these minor specks of land and the possibility that they are not true islands but rather are held up by the ice and move with it may make identification all the more problematic. Indeed, once the furthest archipelago retreats beneath the waves, the EEZ retreats with it. How important are these juts of land? Ask the Japanese government about Okinotorishima, the British government about Rockall, or the Icelandic government about Kolbeinsey (Jacobsen and Stone Reference Jacobsen and Stone2006).
In the case of Okinotorishima, a series of islets in the south China sea, the Japanese government has spent about $740 million to establish a presence and preserve from the ravages of the sea what China has claimed is nothing more than rocks (Yoshikawa Reference Yoshikawa2005). Considering that the highest point of the islet is less than 1 metre above sea level and none of them are any bigger than a ‘king-sized bed’ (Haberman Reference Haberman1988), one can certainly understand the Chinese position that seeks to dissipate the EEZ that surrounds the islets.
On the other hand, the British claim to Rockall appears to have more validity. The islet, which is approximately a seventh of an acre in size and, at its highest point, reaches some 22 m above sea level, was proposed by one author as the potential site of an aerodrome to allow for refueling (Macintosh Reference MacIntosh1946). That, coupled with the abundant fishing resources nearby, might have assisted Britain in maintaining that the island should be granted an EEZ surrounding it. Yet the British relinquished such claims when it acceded to UNCLOS in 1997 and the Fisheries Limits Order 1997 was used to redraw the limit using an inhabitable island instead (Newton and others Reference Newton, Peach, Coull, Gault and Needle2008).
Rights of navigation
As noted above provisions of UNCLOS help to denote state control of territorial waters particularly where inland territorial waters are concerned, but when straits are deemed to be international, disputes have the potential to arise.
UNCLOS dictates that if ‘the waters of the territorial sea form an “international strait” then there is a right of passage for international shipping through that strait’ (McRae Reference McRae2007). Notable international straits include the Malacca Strait joining the Indian Ocean with the South China Sea, the Straits of Hormuz joining the Persian Gulf and the Arabian Sea and the Strait of Gibraltar joining the Atlantic Ocean with the Mediterranean Sea.
The question of what are inland territorial waters in the Arctic archipelago is currently at the forefront. While very few nations would argue the Hudson Bay or Bay of Fundy are not rightfully Canadian inland waters, such consideration is lacking where the archipelago is concerned. Yet apart from Baffin Bay, there is no discernable international strait present in the north American Arctic. So why would there be questions regarding international navigation in this region? This question is addressed below.
At the same time, there is a further complication regarding whether the NWP constitutes an archipelagic water of a non-archipelagic state (Rice Reference Rice2009). The archipelagic waters distinction comes into being because during the negotiations phase of the third UN Conference on the Law of the Sea, Canada made an international claim to be an archipelagic state (Symmons Reference Symmons1979: 237). However, even though the baselines method is the one that is used by archipelagos to determine their waters (Roach and Smith Reference Roach and Smith1996: 23), Canada's use of baselines predates its accession to UNCLOS (Dufrense 2008: 5) and Canada itself rejects the notion that its waters are archipelagic waters (LeGresley Reference LeGresley1993), pointing instead to a different article in UNCLOS to support its baseline method (UNCLOS 1982: article 8) as well as the fisheries case of 1951 between Norway and the United Kingdom (Pharand Reference Pharand1989: 154–155). Still, article 8(2) of UNCLOS provides another problem to full Canadian sovereignty over the Arctic archipelago because reliance on the baseline method to establish as internal waters areas that were not previously considered to be internal accords a right of innocent passage. Yet, as we shall see later, it is not the right of innocent passage but rather the more problematic transit passage that is at the heart of the debate.
US/Canadian disputes
It might come as a surprise to many readers to learn that the United States and Canada have not entirely settled the issue regarding the Alaska-Yukon border. In the 1970s the United States and Canada were busy staking out their 200 mile EEZ boundaries but somehow the Alaska-Yukon maritime boundary was never settled (The Economist 2004). There was not much concern over what the exact boundary details were until the scramble for more oil on the Arctic came to the forefront. According to one source ‘there's 6,250 square miles under dispute. . .’ (Binkley Reference Binkley2008b). As the United States began selling leases for drilling and exploration in the Beaufort Sea, Canadian officials began to protest bringing the issue of border delineation again into focus.
The United States tested Canadian resolve over its sovereignty claims to the NWP in 1985 when it informed Canada that the USCGS Polar Sea would transit the passage. However, the United States failed to request permission, which Canada nevertheless granted. Canadian officers were aboard Polar Sea and the Untied States noted that it was not intended to challenge the Canadian position that the strait was Canadian internal waters. These statements were accepted by Canadian officials, but not the Canadian public (Elliot-Meisel Reference Elliot-Meisel1999: 415–416).
Bowing perhaps to domestic pressure and with a memory to the Manhattan transit, which had so offended the Trudeau government, the Mulroney government convened discussions with United States, which led to the 1988 agreement on Arctic cooperation. ‘The main purpose of the agreement is to regulate icebreaker navigation in the Canadian Arctic. It ensured that “all navigation by US icebreakers in waters claimed by Canada to be internal will be undertaken with the consent of the Government of Canada”’ (Gaillard Reference Gaillard2001: 188). Essentially the agreement assures Canada that US icebreakers will obtain transit consent and obey Canadian laws while in Canadian waters and assures the Americans that consent will be given for purposes of transit. However, clause 4 of the agreement also specified that this US allowance was not seen to be detrimental to its stated position that, while the NWP may be territorial waters of Canada, they are not internal waters, contrary to Canadian claims (Lalonde Reference Lalonde2004: 68). Indeed, US case law with regard to Alaska's archipelago demonstrates its stated position. The US Supreme Court held that for internal waters to be given validity, there must be an exercise of sovereignty that includes ‘an assertion of power to exclude all foreign vessels and navigation’ and that this would also require the denial of ‘innocent passage’ (United States 1975).
One severe problem for Canada is that if the waters are not internal waters but are merely territorial waters, not all of the waters that it claims will be covered by its jurisdiction. Territorial waters do not extend more than 12 nm off land (or off straight base lines) and so where the waterways is more than 24 nm across, a portion of it will be considered international waters within its EEZ, which further reduces its regulatory and enforcement activities at least with respect to those areas (Roth Reference Roth1990).
Furthermore, even if the Canadian claim to internal waters is accepted, this is not really the end of the story. First, the Canadian claim is also based on the ice formation that makes the sea more like land than water but this position is rapidly being undermined by global warming (Lalonde Reference Lalonde2004: 73). Second, and potentially worse for the Canadian case, would be if the NWP were a passage for international navigation. In that case, a different standard, that of transit passage applies, which allows submarines to operate submerged, even though they are required to proceed on the surface and fly their flags under innocent passage rules (Dutton Reference Dutton, Erickson, Goldstein, Murray and Wilson2007: 165). It also allows the passage of aircraft, while innocent passage does not. Under a transit passage regime, Canada may only enforce international environmental regulations, prohibit fishing, interdict smuggling operations, and regulate shipping traffic for the purpose of ensuring the passage remains open to sea traffic. Canada may not deny the passage of ships under these circumstances. The one saving grace may be the requirement that transit passage requires that the strait actually be used for international navigation (Dutton Reference Dutton, Erickson, Goldstein, Murray and Wilson2007: 166). The traversing by icebreakers and nuclear submarines may not confer upon it such a status but with global warming the prospect of a potentially ice-free passage that will end up cutting 7000 km out of a journey from Europe to Asia certainly would be a valid reason for considering a rethinking of the international status of the NWP.
The navigation issue is quickly coming to a head. In November 2008, the Canadian coast guard reported the first transit of a commercial vessel through the NWP during a time period when vessels have been historically unable to navigate the passage due to icing. Camilla Desgagnes delivered supplies from Montreal to Cambridge Bay, Kugluktuk, Gjoa Haven and Taloyoak in western Nunavut. Although the report came two months after the sailing of the vessel from Montreal, it marked the first time commercial vessels had been able to transit the passage at that time of year (CBC News 2008). It also raised the question of the viability of future voyages and the lengthening of the shipping season through the passage. As more vessels are able to navigate through the Arctic it is likely that more claims over the region will begin to be asserted. This may result in increases in legal claims and demands for resolution of boundary, resource and navigation claims. If enough vessels are able to transit the passage on a fairly regular basis, a new set of challenges, political, economic and environmental may present themselves to potentially unprepared policymakers.
This is not a minor possibility. A simulation study conducted by Somanathan and others (Reference Somanathan, Flynn and Szymanski2009), using historic ice patterns from 1999 to 2003, shows that even when commercial ships require icebreaking capabilities, the cost of shipping between Newfoundland and Japan is cut by about 10%. This is despite higher capital construction costs, insurance costs, and repair costs for ships capable of traversing ice-laden waters. Since distances are reduced by even more on the Europe to Japan route, it is likely that simulation of that route would lead similar results. Even the New York to Japan route could become commercially viable with thinning ice and the probability of increased tolls through the Panana Canal due to the need for capital cost recovery on its expansion from 2014.
Antarctica treaties and claims
Although Antarctica is a continent and the Arctic is an ocean, the Antarctic Treaty holds some lessons with regard to the Arctic. A half a century ago, a race was on to register claims on Antarctica. Just as with the Arctic, where seven countries (the US, Denmark [through Greenland], Norway, Russia, Finland, Iceland, and Canada) are locked in disputes over rights in the territory, the scene in Antarctica also had seven countries (Argentina, Chile, France, Britain, Australia, New Zealand, and Norway) arguing over sovereignty of the frozen continent. By 1958, the vast majority of Antarctica had been claimed by various countries and some of these claims were overlapping. Indeed, the totality of the Argentine claim lay within the boundaries of claims by Chile and Britain, while the British and Chilean claims somewhat overlapped.
The first of these claims was registered by the British using letters patent in 1908. This claim was later redefined in 1917 providing its current boundaries and incorporating the area into the Falklands Island Dependencies. It is this claim (although now separated from the Falklands as the British Antarctic Territory) that continues to exist to this day. The holding of the Falkland Islands, along with the South Georgia and South Sandwich Islands, form the basis for the claim on Antarctica by Britain. At the same time, all of these possessions have been likewise considered by Argentina to be an integral part of its province of Tierra del Fuego. Subsequent claims by Britain in 1923 and 1933 have been inherited by New Zealand and Australia, although the claim of New Zealand may be undermined by the fact that it has never formally been relinquished by Britain (Quigg Reference Quigg1983: 126).
The French claim is based on the landing on an island just off the Antarctic coast by Dumont D'Urville in 1840 (Charteris Reference Charteris1929: 226). This island was proximate to the coastline of the continent, which was sighted and described by D'Urville who named the region beyond the island Adélie Land, after his wife. It is clear, however, that D'Urville never knew that he had sighted a continent (Hobbs Reference Hobbs1932: 635).
The claims of Chile and Argentina are based on several factors, not the least of which is the proximity of both countries’ southern boundaries to the Antarctic Peninsula. Their claims are also based on the notion that the peninsula is a natural extension of the Andean mountains, a principle known as geological affinity (Quigg Reference Quigg1983: 115). In addition, both countries have attempted to strengthen their claims by announcing the births of children on the continent: Emilio Marcos Palma born to parents stationed at Argentina's Esperenza base (Auburn Reference Auburn1982: 42) and Juan Pablo Camacho born to parents stationed at Chile's Eduardo Frei Montalva base (Ruy-Pérez Benitez Reference Ruy-Pérez Benitez1991: 117).
The claim of Norway is based on the explorations of Roald Amundsen and Lars Christensen and is based on discovery and charting of the area. The predominant reason for this claim was to secure whaling rights (Reeves Reference Reeves1939: 519–520). Interestingly, it is the only claim that does not define a southern boundary with all other sectors taking on the shape of ‘pie slices’ that terminate at the South Pole. According to Quigg (Reference Quigg1983: 112), ‘[b]ecause the practice of making pieshaped claims is disadvantageous to Norway in the Arctic, where it was originally applied, Norway has taken care to avoid it in the Antarctic.’ In addition, Norway's claim is the only one that does not rely at least in part on the sector principle, first proposed by Pascal Poirier, a Canadian senator in 1907 in attempting to assert sovereignty over the Arctic.
Application of sector claims method to Arctic territory
In the Canadian senate in 1907, Pascal Poirier made the case that ‘a country whose possession to-day goes up to the Arctic regions . . . has a right to all the lands that are found in the waters between a line extending from its eastern extremity north, and another line extending from its western extremity north . . . up to the north pole’ (Canada 1907: 271). Still, the sector approach has some objections. Chief among these is the inability to negotiate. Indeed, Auburn (Reference Auburn1982: 31) argues that ‘[a] claimant is bound to the area defined, and concessions to new claimants would impugn the validity of the entire claim. Yet because of the defects of the principle it will be relied on in future. A sector is itself an admission of the failure to comply with the general standards of [international law].’ In addition, the method is not found elsewhere in international law, as it was articulated as a political, rather than legal, point in the first instance. Finally, the method itself has fallen into disfavour among Canadian scholars (Head Reference Head1963–1964; Pharand Reference Pharand1988) and is not even referenced in the most recent Canadian government documents assessing sovereignty in the Arctic region (Carnaghan and Goody Reference Carnaghan and Goody2006). Indeed, as noted by Kindred and others (Reference Kindred, Saunders, Brunnée, Currie, McDorman, de Mestral, Mickelson, Provost, Reif, Toope and Williams2006: 460), ‘[t]he unquestioned application of the international law of the sea to the Arctic Ocean by all Arctic states, including Canada, renders the Sector Theory legally defunct.’
The Antarctic Treaty
As far back as the 1930s there was pressure on the United States to make a claim to the whole of the Antarctic territory that lay unclaimed by any nation (Reeves Reference Reeves1939). However, the United States has always demurred on this point, refusing both to make a claim or formally to recognise the claims of others but reserving the right to make a claim in the future (Beck Reference Beck1986: 124). The US refusal to make a claim or to recognise the claims of others was traced back to its traditional legal position that discovery does not automatically confer sovereignty. Instead, such claims must be ‘perfected’ by occupation or effective control (Hyde Reference Hyde1945).
However, by the 1940s, the US could no longer stand by idly. Geopolitical considerations doubtless played a role in its decision in 1948 to advance the discussion of the internationalisation of Antarctica without consulting with Russia, which was engaged in a battle of wills with the United States over the Soviet blockade of Berlin (Hanessian Reference Hanessian1960: 439). Still, Soviet objections, along with intransigence among other nations in renouncing claims of sovereignty effectively scuttled the initiative. It was not until a decade later that traction for a formal international settlement of the ‘Antarctic question’ could take place through a policy of suspension and freezing of international claims to the territory for an indefinite period. However, the first test of these claims occurred on 13 May 2009, which was the deadline for countries to file claims to the United Nations based on their ‘extended continental shelf’ that will allow for natural resource extraction under UNCLOS. This provision would allow a claim of up to 350 nm (a little over 400 miles) from the baseline archipelago at low tide. The importance of this is not to be taken lightly. After all, the claims of Britain, Chile, and Argentina all have land masses within 350 nautical miles of the outer limits of the Antarctic Treaty. As such, while they would not be allowed to search for and extract natural resources such as oil and gas within the boundaries of Antarctica given the protocol on environmental protection that prohibits such development for 50 years from its initial entry into force in 1991 unless all signatories agree to reopen the protocol, they certainly could claim the ability to secure such rights outside those boundaries. Indeed, such a policy could strengthen the eventual disposition of their claim. Joyner (Reference Joyner1992: 206) anticipated such action and Argentina has already announced plans to move forward with just such a claim (Mercopress 2008) while Britain (BBC News 2008) has ‘reserve[d] the right to do so’ and the clash of these claims could bring age-old hostilities back to the forefront.
The 1982 Falkland Islands war
Unfortunately, the conflicting claims in the region have already provoked military action. The Falkland Islands war of 1982 between Argentina and Britain was principally a move by Argentina to try to bring Britain to the negotiating table over its claims (as well as to head off popular unrest that was brewing over rampant inflation in Argentina by energising nationalistic feelings in the populace) more than an attempt to start a war over a half a million sheep and less than 1/200 that number of people (McClure Reference McClure2004). Indeed, the Argentine government never anticipated a military response by Britain, especially since none was forthcoming after Argentine forces took the South Georgia and South Sandwich Islands earlier that year (Barnett Reference Barnett2000).
One often overlooked aspect of the Falklands war is that ‘in Argentina the disputes with Great Britain over the Antarctic and over the Falkland Islands are frequently viewed in principle as one and the same’ (Hayton Reference Hayton1956: 588). This is not a merely theoretical problem overcome by the Antarctic Treaty's demilitarisation of the continent. After all, the treaty does not extinguish those claims; it merely suspends them. In fact, the treaty was due for renewal just nine years after the Falklands war so those claims could very well have come up had the Argentines prevailed. In addition, at the time of the war, there were no provisions prohibiting the extraction of natural resources or minerals from the continent and surrounding ocean. Holding an undisputed claim would have potentially allowed Argentina to take steps to go after those resources should they exist, especially in the area just north of the 60°S, which is not covered by the Antarctic Treaty. Thus, Britain really had little option than to exert its sovereignty by asserting its own claims in the region.
An important point of consideration in the outcome of the Falkland Islands war deals directly with one military incident. On 2 May 1982, a British submarine HMS Conqueror sunk the Argentinian heavy cruiser General Belgrano. That successful engagement on the part of the Royal Navy made Argentina think twice about deploying its only aircraft carrier, Veinticinco de Mayo, against the Royal Navy's Falkland Islands taskforce (Hastings and Jenkins Reference Hastings and Jenkins1983). Had Argentina been able to conduct carrier operations in support of land based air attacks against British assets in the South Atlantic during the spring of 1982, the outcome of the conflict may have been dramatically different. Because Veinticinco de Mayo spent critical days of the war docked in port, Britain was able to defend its claims over the Falklands, expel the occupying forces, reclaim the territorial capital of Stanley and protect its regional interests against further Argentine aggression. In the future, however, such luck, as experienced by HMS Conqueror, coupled with the uncertainty (or unlikelihood) of a competitive state unwilling to risk expensive military assets, may not be enough in defending territorial claims during a conflict. In other words, the repeat of a victory like that which was enjoyed by the British in 1982 is by no means guaranteed in the future, where Arctic or Antarctic claims are concerned.
The example of the Falkland Islands war is not to be taken lightly. Had Britain lost, not only would its claims to the south Atlantic islands been in doubt but its Antarctic claims would have also been in question. Should nations with interests in the Arctic have a similar issue over small and sparsely populated islands in the north arise, the geopolitical consequences could be earthshaking.
Who cares? Economic and political ramifications
The claims that are coming due in the Antarctic also affect the Arctic region. As UNCLOS applies worldwide with regard to claims of extension of the continental shelf, Canada, the US, Russia, Denmark, and Norway have engaged in explorations to confirm whether they may be able to extend their 200 nm exclusive economic zones outward to 350 nm. The planting of a Russian flag at the North Pole in 2007 was a probative attempt to establish jurisdiction. This symbolic action was rather problematic considering that the nearest land point in Russia is Rudolf Island in Franz Joseph Land, which lies nearly 500 nm away from the pole (BBC News 2007). Both Canada and Greenland have land masses closer to the pole. The Russian action was loudly criticised by Canada's foreign minister Peter MacKay who said ‘[t]his isn't the 15th Century. You can't go around the world and just plant flags and say “We're claiming this territory”’ (BBC News 2007).
Still, the issue is not a merely academic. The prospects of natural gas and oil are quite likely given the current abundance found on the North Slope of Alaska. An estimate by the US Geological Survey suggests that the available natural gas and oil that can be extracted by technologically feasible methods using current technology equals the entire proved reserves of Russia (Bird and others Reference Bird, Charpentier, Gautier, Houseknecht, Klett, Pitman, Moore, Schenk, Tennyson and Wandrey2008). This may be a critical point given that Russia is the largest holder of proved natural gas reserves and the eighth largest holder of proved oil reserves in the world. Indeed, at world prices prevailing in May 2009 of $4.19 per thousand cubic feet of natural gas (United States 2009c) and $58.81 per barrel of West Texas Intermediate oil (United States 2009a), the USGS estimates of 1,669 trillion cubic feet of natural gas and 90 billion barrels of oil (Bird and others Reference Bird, Charpentier, Gautier, Houseknecht, Klett, Pitman, Moore, Schenk, Tennyson and Wandrey2008) would fetch nearly $12.3 trillion on the open market. Alternatively, if we examine the barrels of oil equivalent, we arrive at 412 billion barrels of oil and oil-equivalent natural gas (Bird and others Reference Bird, Charpentier, Gautier, Houseknecht, Klett, Pitman, Moore, Schenk, Tennyson and Wandrey2008), which is valued at $24.2 trillion. To put these estimates in perspective, the entire US, including Alaska, has 211 trillion cubit feet of natural gas reserves and between 20 and 30 billion barrels of proven oil reserves (United States 2008). Furthermore, despite protests by Malthusians that we are rapidly running out of oil, proven oil reserves have actually increased by about 30% in the past decade (Oil and Gas Journal 2002; United States 2008) and we now have more than twice the proved reserves that the Club of Rome's infamous ‘The limits to growth’ report gave when it forecast that the world would exhaust its oil supply by 1992 (Meadows and others Reference Meadows, Meadows, Randers and Behrens III1972). Thus, these estimates are, if anything, probably understating the amount of extractable reserves.
These potentially bountiful riches are, however, only the tip of the proverbial iceberg. There are also untold deposits of core minerals and the possibility for expansion of fishing. At the same time, the possibility of a shutdown of the Atlantic current owing to the deposit of vast amounts of fresh water stored in the Arctic ice should be a chilling one for all concerned. If the Atlantic current stops, the world could be in for another ice age. This could allow for an expansion of land due to a drop in the sea level such as had occurred during the last such prehistoric event. The Bering Strait could once again become a land bridge and many of the world's islands could grow dramatically in size. On the other hand, if global warming continues apace without disturbing the current, the result could be equally disastrous for many states as they could be inundated with flooding that would dramatically shrink their coastlines and thus cause a retreat of their EEZs. The importance of this is predicated on a fundamental question being answered in the affirmative: would civilization as we know it adequately adapt to such a cataclysmic event in either direction?
In any case, the massive relocation of populations would require a restatement of immigration law as peoples are ejected from their native homes due to climactic changes. None of these possibilities are currently up for discussion but they should be just as certainly as any other. Imagine, for example, the impact of a dramatic increase in glacier activity such as was seen at the last ice age. Such an onslaught on the Canadian landscape would serve to cover almost all of the country in ice and would doubtless mean the end of Canada as we know it. Thus, the desire for resources by any and all countries must be tempered by the realisation that if a tipping point exists and the point of no return is passed, the cost to all of the Arctic nations of their exploitation of the region may be catastrophic. The problem is what economists refer to as a negative externality. Since each country does not pay the full cost of its resource extraction but instead passes it on to the rest of the world, it overexploits the resources and causes us to move more quickly to the tipping point. We are in a prisoner's dilemma in which everyone would be made better off by cooperating to ensure resource exploitation is moderated but each country benefits from defecting from any such agreement provided everyone else adheres to it.
Equally important is that the so-called ‘Arctic exception’ that allows for increased environmental protection will no longer apply when ice no longer covers the area for most of the year. It is for this reason that the Antarctic protocols regarding environmental protection may be especially important to examine. A similar territory could be drawn in the Arctic Ocean to forestall future economic development of the region until such time as it can be determined whether such activity will be hazardous to the region's long-term interests. This should not prevent the scientific exploration of the region and testing for the presence of such resources but it should forestall the extraction of these resources outside of currently active production facilities.
Why sovereignty matters now
‘Canada has a choice when it comes to defending our sovereignty over the Arctic. We can use it or lose it. And make no mistake, this government intends to use it’ (Prime Minister Stephen Harper Reference Harper2007).
Historically Canada has relied on one of three methods to shore up its claims on the Arctic: sector theory, straight baselines and historic rights. The sector theory, as noted earlier, was first expounded a little more than 100 years ago. Although now generally discredited, Canada used the sector theory to delineate the land and sea territory inclusive within the longitudinal confines of the east and west coasts of the country, between 60° and 141° W. Since 1986 Canada has used straight baselines, which are drawn ‘from a point on the coast to the islands, or from island to island. One then “connects the dots” literally, and the water behind the lines is designated internal waters, while waters away from the line and toward open waters are considered territorial seas’ (Charron Reference Charron2005–2006: 44). The ‘historic rights’ argument centres on Canada's insistence that it received the title to the land from the British and that native peoples ‘continue to occupy and make use of the region’ (Cushman Reference Cushman2007).
The cold war brought about much cooperation between the Canada and the United States regarding activities in the Arctic. Advanced radar systems such as the Distant Early Warning or DEW line were established in the 1950s to detect an attack from the Soviets from across the North Pole by missile or bombers. Joint exercises held by US and Canadian armed forces were staged regularly in the region following the end of World War II and the establishment of NATO in 1949 and NORAD (North American Aerospace Defence Command) in 1957. Yet it was economic reasons rather than military that bought the issue of Canadian sovereignty of the Arctic into clearer focus.
In 1970 the Trudeau government, largely in response to the voyage of Manhattan, enacted the Arctic Waters Pollution Prevention Act. The purpose of the act sought to extend Canadian ‘jurisdiction out to 100 miles from the coast for pollution prevention purposes. . . Essentially Canada was claiming the authority to control shipping in the Northwest Passage. . .according to its own standards. This. . .unilateral assertion of jurisdiction was protested by the United States and some European countries. . .’ (McRae Reference McRae2007). But passage of the act illustrated Canadian concerns regarding foreign powers not seriously considering sovereignty claims over the archipelago. Events in the 1980s and 1990s continued to challenge this notion and as global warming became an increasing reality, the governments of the 21st century have had to consider other pragmatic options to maintain Canada's legal claims on the region.
‘Arctic sovereignty is becoming more coveted as global warming melts the ice and opens new areas for oil and mineral exploration’ (Space Daily 2005). According to one government source ‘Canada has 36,000 islands in the Arctic’ (Binkley Reference Binkley2008b). With new land emerging from beneath the ice coupled with new demands for natural resources, an urge to explore and exploit the region will develop particularly as costs for goods such as energy and food continue to rise.
Yet events of the last 25 years have compelled Canada to take its sovereignty of the region more seriously than in ages past. As mentioned earlier, there was the 1985 incident involving the USCGS Polar Sea transiting the NWP. The United States government deployed Polar Sea on its voyage without obtaining permission from the Canadian government to do so, but instead ‘notified’ Ottawa regarding the ship's transit (Gaillard Reference Gaillard2001; McRae Reference McRae2007). While Joe Clark enunciated a position on Canadian sovereignty in the House of Commons that seemed to follow the basis of historical rights, he actually went a step further in assuring members that ‘the government was confirming Canada's sovereignty over the waters of the Arctic archipelago by enclosing [it] with straight baselines’ (McRae Reference McRae2007). Yet despite the repeated pronouncements of the government of Canada, in 1999 a Chinese research vessel ‘arrived unannounced at Tuktoyaktuk, east of the Mackenzie Delta’ (The Economist 2004: 32). Part of the issue that faced Canadian authorities was the lack of human presence and available resources to enforce Ottawa's sovereignty claims in the region.
After coming to office in 2006 Prime Minister Stephen Harper announced dramatic increases to the Canadian forces operating and procurement budgets. One of Harper's important announcements centred on the acquisition of armed patrol boats to be stationed in the Arctic. The conservative government has undertaken a great deal of posturing in the region as a measure of ‘proof of their commitment to Arctic sovereignty’ (Esprit de Corps 2007). Yet the widely accepted view is that there little military threat to the Arctic. The greater concerns relate to maritime traffic, commercial shipping and potential environmental damage. Many feel that a better use of resources would be to control the access points to the NWP rather than wasting time on internal patrols. (Binkley Reference Binkley2008a).
Yet for the past few years Canadian forces have held regular exercises in the north in large part to assert sovereignty over the region. The most recent exercise was Operation NUNALIVUT 08 described as ‘a joint sovereignty operation in Canada's High Arctic. . .[including] air surveillance and Canadian Rangers patrols along the west cost of Ellesmere Island between Eureka and Canadian Forces Station Alert. . .’ (Canadian Corporate News 2008).
Although the Arctic is not identified as a major military theatre of operations for the US military, Canada continues to take its presence in the region seriously even though Canadian forces are deployed in Afghanistan to fulfil the NATO commitment, meaning that in theory there are fewer troops available for military activities in the Canadian north. The Canadian military presence in the Arctic serves a particularly important sovereignty purpose that is more attuned to the navy rather than the air force or rangers. Submarines of the United States, United Kingdom and Russia have been known to make regular, albeit unofficial, transits of the NWP without prior consultation with Ottawa. A major concern exists that these submarine transits could be used as legal argument that the passage constitutes an international strait. Howson (Reference Howson1988: 365) notes that ‘Canada's inability even to monitor adequately Russian and American submarine traffic through the Passage [serves] to deal a serious. . . blow to the perfection of Canada's “historic title” over the waters of the Arctic archipelago.’ In response the Canadian government has tasked satellite assets to monitor the Arctic and is considering the installation of underwater detection networks similar to the US SOSUS (sound surveillance system) networks established during the cold war and deployed in the north Atlantic to detect threats from Soviet submarines.
One of the major tenets of 21st century United States maritime strategy is strategic cooperation. With fewer than 300 ships in the US Navy, the US is relying on cooperation with other nations to secure US national interests. Cooperation with coast guard units (both domestic and foreign) will be critical to the success of the new maritime strategy (Till Reference Till2008). Security of the NWP currently falls under the jurisdiction of US and Canadian coast guard forces. As the United States only has three icebreakers in its current inventory, the bulk of security in this important region will default to Canada.
However it has been noted that the lack of deference to Canadian sovereignty is not just a North American issue. ‘The main reason the US insists the Northwest Passage is Canadian territorial waters is because it doesn't want to create a precedent that Asian countries could use to control the Strait of Malacca’ (Binkley Reference Binkley2008b). The US needs free access to operate particularly in the Strait of Malacca given the increase in piracy in this region in the recent past (Carmel Reference Carmel2008). While the US navy is busy implementing policy and strategy elsewhere in the world, the current US maritime strategy does not yet consider the Arctic to be of critical interest to US national security based upon a review of recent articles and proceedings on this topic. However, this may be poised to change. The recent National Security Presidential Directive/NSPD-66/Homeland Security Presidential Direction/HSPD-25 asserts that much more must be done to secure the northern perimeter given the possibility of terrorist attack and the need to develop energy resources and maritime shipping in the region (United States 2009b). This may have the effect of further exacerbating tensions between Canada and the United States, especially with the US navy contemplating increased activity in the region (Blanchfield and Boswell Reference Blanchfield and Boswell2009). On the other hand, increased US attention to the area may actually work to Canada's benefit. From a US security perspective, the principal benefit for having the NWP regarded as an international strait is to allow unhindered submerged passage by submarines. However, this benefit pales in comparison to the damage potentially caused by allowing ‘foreign vessels [to be] shielded from reasonable regulations and scrutiny’ (Byers Reference Byers2007: 158), which would be required if the NWP is considered to be an international strait. Yet, despite a similar tone taken by Paul Cellucci, former U.S. Ambassador to Canada in 2006, American intransigence on this issue appears certain (Kraska Reference Kraska2007: 257).
The problem arises because regulation differs from enforcement and the only area where Canada would be able to enforce its own laws would be in the case of navigation safety violations or pollution that would ‘. . . cause or threaten to cause major damage to the marine environment. Otherwise . . . the traditional jurisdiction of the flag State would apply’ (Lalonde Reference Lalonde2004: 95). Canada would have to fall back on article 234 of UNCLOS to be able to protect the Arctic environment in any meaningful way (UNCLOS 1982: article 234). Yet, as we have already pointed out, the melting of ice in the Arctic reduces the possibility of continuing to invoke the ‘Arctic exception’. In order to safeguard Canadian interests, it might have to go back to the international community to try to craft new environmental regulations that can be enforced through the International Maritime Organization but this task could be hampered by the need for consensus building. Indeed, contra Kraska (Reference Kraska2007), we think that such a move would be a major step backwards in terms of safeguarding the Arctic environment as multilateral efforts will almost necessarily result in lower standards than would apply if Canada could impose environmental safeguards unilaterally, especially given the weak enforcement mechanisms mentioned earlier with regard to international straits.
Political variables on both sides of the Canadian border
Despite the notoriety of issues such as border security, energy imports, Alberta cattle with or without BSE and softwood lumber disputes, the NWP sovereignty issue may turn out to be most important, yet most overlooked element of north American cooperation for the next 50 to 100 years. During the cold war, the security and stability of the Arctic was taken for granted as US and Canadian forces sought to deter Soviet aggression in the region. Yet with the Soviet threat gone and old sources of natural resources dwindling across the globe, tensions between the two countries could easily rise in the coming decades; especially where the contentious, yet often ignored issue of fresh water is concerned.
Also one cannot rule out unilateral moves in defiance of the national government by state governors or provincial premiers with their counterparts across the border to address issues ignored or discounted by the Canadian or United States federal governments. Take for example the agreement signed in 2007 between California governor Arnold Schwarzenegger and Ontario premier Dalton McGuinty to cooperate on reducing greenhouse gas emissions and stem cell research. While this agreement has no legal weight at the federal level of either the United States or Canada, the sheer act of signing an agreement in principle between the elected leaders of California and Ontario (the most populous state and province respectively) suggests that elected officials in both countries may circumvent the current administrations in favour of actions that may be more acceptable to regional voters on issues they deem salient but perceived as neglected at federal levels. The Bush administration largely ignored environmental issues until the Schwarzenegger-McGuinty initiative. What would be the implication if a future governor of Alaska and a future premier of Yukon signed an agreement on the delineation of state and territorial boundary in the Beaufort Sea? Note the suggested agreement would not be a US-Canada but an Alaska-Yukon agreement. Will the efforts of lower level politicians drive national agendas regarding the Arctic in the future?
Who wins and who loses?
The issue of Arctic sovereignty is not going to go away. There will be those who benefit from the resolution of this issue and those who will be harmed. Canada stands to lose a great deal in the forthcoming struggle over this geopolitically important area if Ottawa does not take decisive and firm action. Canada must be prepared to defend its interests in the Arctic while maintaining the balance it enjoys in its relations with the United States, the European Union and other major world powers. As noted by Green party of Canada leader Elizabeth May in 2008 Canada must make a major investment in the Arctic in order to solidify its claims and ensure the environmental integrity of the region (May Reference May2008).
With Russia resurgent and aggressively staking out claims in the Arctic and making bold moves in the Caucasus and eastern Europe the old powers of the 20th century may be hamstrung when it comes to a belligerent Russian state. As was witnessed in the summer of 2008 during the Russian invasion of the Republic of Georgia, western powers are limited in their potential responses to aggressive Russian moves. NATO forces are committed to action in Afghanistan, the United States will continue to station forces in Iraq and seek to expand missions in Africa in the coming decades and western Europe is reliant on Russian energy exports to meet its own needs. Without a counterbalance to the aggressiveness Russia has shown during the past two years a territory or resource grab in the Arctic by Moscow is all but certain.
There are national security implications for both the United States and Canada should the Russians make an aggressive territorial move northward. Also if more traffic continues to transit the NWP there will be increased risks for environmental accidents and acts of piracy, although the latter is highly unlikely in the immediate future given the current conditions in the Arctic. But if significant attention has to be redirected to the Arctic, it will leave US interests elsewhere in the world vulnerable.
If the NWP stays clear of significant ice, Asian exporters such as the People's Republic of China, Japan and Vietnam will enjoy greater access to European markets. As US consumers are caught in economic turmoil, Europe will become a logical destination for Asian goods which are increasing in quality and decreasing in cost. The reduction of 7000 km on a voyage from Shanghai to Liverpool, Cork, Rotterdam or Cherbourg would result in greater market advantage for China and other Asian nations gaining economic dominance in the 21st century.
As world demand for energy continues to rise, those best able to extract, process, transport and distribute those resources will be clear winners. It should be noted however, that those winners will not necessarily be the traditional energy giants such as Exxon-Mobile or Royal Dutch Shell who dominated the petroleum markets of the 20th century. It is possible that energy production centres in the Arctic may become a focus of national security for Canada and/or the United States.
If action is not taken to determine sovereign rights in the Arctic the clear loser may be the environment. Antarctica has been spared much development and exploitation in large part because of the Antarctic Treaty. With polar bear populations on the decline (Obbard and others Reference Obbard, McDonald, Howe, Regehr and Richardson2007) and the fragile Arctic ecosystem in doubt, an international treaty may be necessary to stem any further environmental damage in the Arctic north. Any such treaty that is proposed, however, must have unanimous consent on the international stage. With world economic and energy markets in turmoil, that prospect is unlikely.
Conclusions and implications
American politicians attempting to make new policies regarding the Arctic would be wise to consider the Canadian point of view regarding sovereignty in the region. In a 1999 article in the American Review of Canadian Studies Elizabeth Elliot-Meisel stated outright that ‘it is in the best interests of both nations to find a practical, bilateral, narrowly defined solution that recognizes Canada's sovereignty claims, while at the same time addressing the United States’ continental security concerns’ (Elliot-Meisel Reference Elliot-Meisel1999). Written more than two years before the 11 September 2001 terrorist attacks, her foresight into the issue is remarkable. She rightly bases her conclusion on four points: 1) Canada's place as a key US ally, 2) more than 50 years history of bilateral cooperation, 3) the unique geographical nature of the NWP and 4) the fact the US military does not consider the NWP to be a vital choke point.
In the summer of 2000 ‘under terms of the 1988 agreement, the US Coast Guard ice-breaker Healy traversed the Passage . . . without incident after meeting all appropriate Canadian legal requirements. This voyage proved that Arctic navigation can take place without threatening Canadian sovereignty’ (Galliard Reference Gaillard2001). In discussing this point Gaillard concludes that Canada's sovereignty over the Arctic is not in danger because of increased commercial shipping in the region. He states plainly: ‘Canada's sovereignty over the lands and waters of the Arctic stands on a secure foundation of law. . . . Sovereignty over the marine areas is based on law, not the fact that the waters in question are frequently covered by ice’ (Gaillard Reference Gaillard2001: 189). Gaillard's conclusion rests mainly on the historic rights argument but is that enough to ensure Canada's continued sovereignty in the region?
