(by Brit Fløistad and Lars Lothe)

The jurisdictional controversy relating to the Northwest Passage is, as indicated earlier, the Canadian straight baseline and thus what constitutes Canadian internal waters. This has been challenged by United States expressing the opinion that these waters fall under the regime of international strait.

Canada’s Internal Waters

As has been indicated above what has caused controversy in Canada’s coastal waters is the baseline indicating the outer limit of Canada’s internal waters and thus the point of departure for measuring the territorial sea and maritime zones. While Canada’s sovereignty¹  over the Archipelago has been recognized by the international community, the controversy is linked to the straight baseline method used by Canada, implying a baseline to the outer perimeter of the Archipelago thus making the Northwest Passage Canadian internal waters.

The first official claim of these internal waters was, as indicated earlier, made in 1973, more precisely by stating that the waters of the Canadian Arctic Archipelago are internal waters of Canada on historical title² . A similar statement was made in 1975, where it was further stated that the regime of transit passage did not apply in these waters² , which in itself may be seen as an indication of these waters having earlier been defined as territorial. Straight baselines around the Archipelago were made official in a statement of 10 September 1985, effective as of 1 January 1986, indicating that “these baselines define the outer limit of Canada’s historical internal waters² . As indicated earlier these baselines are today laid down in the Oceans Act where reference is made to the definition found in UNCLOS III as well as to historic title³ .

Protests to the straight baseline method used by Canada came from the United States in February 1986 stating as its position that “there is no basis in international law for the Canadian claim⁴ . Protest also came from the European Community in July 1986 stating that “the Member states cannot recognize the validity of a historic title as justification for the baseline⁵ .

Canadian authorities have, as indicated, referred to two legal bases in support of its internal waters. One is by virtue of historic title, which enables a state to supersede purely geographical conditions in claiming sovereignty and thus preventing the application of rules and regulations that would otherwise be binding. The other legal base is by virtue of the fact that their internal waters are on the landward side of the baseline drawn in 1985.

It has been argued that the historic title argument does not fulfil the requirements neither of Canada having exercised exclusive jurisdiction over the actual waters for a sufficiently long period nor of the need of acquiescence from foreign states² . As for the other argument namely the actual drawing of straight baselines in 1985, it is argued that these lines are in consistence with international maritime law laid down in UNCLOS III as the archipelago meets the criteria of being sufficiently closely linked to the land and also that it does not depart to any appreciable extent from the general direction of the coastline. The Canadian argument is that the baseline also met the criteria of customary international law in 1985. 

The United States position is that the Northwest Passage qualifies as an international strait, thus giving foreign ships the right of transit passage⁶ . In order for a strait to meet the qualification of being international, there are geographical as well as functional criteria. The geographical criterion is that of a waterway between adjacent land masses that links two bodies of the High Seas or EEZs⁷ . Its functional definition, not laid down in UNCLOS III but based on customary international law⁸ , defines the criterion to be a strait used for international navigation² .

Relating these criteria to the Northwest Passage the crucial factor is the functional criterion. Based on analyzing the ship traffic in this Passage it has been concluded that “it is evident that the Northwest Passage has not had a history as a useful route for international maritime traffic.” 13 It is, however, pointed to the fact that the navigation of foreign commercial ships may increase through the Northwest Passage thus being sufficient for making it an international strait in the future² . It has thus been maintained that it is  hard to argue that the ship traffic in the Northwest Passage so far meets the functional criterion of an international strait., but that this may be the case in the future⁹ .

It goes without saying that for ship traffic it makes a difference whether the actual waters are defined as internal waters or international straits. It seems, however, that Canadian authorities have a rather pragmatic attitude when it comes to the actual sailing through these waters. Their main concern seems to be national jurisdiction in order to pass appropriate legislation to protect and control the marine environment as well as to introduce other safeguarding measures. 

As for their position regarding the legal status of these waters, protests from other countries have not changed the Canadian position on its straight baseline, rather Canadian authorities has reasserted their baseline claim, lately also by stressing the historic usage of ice and waters in the Archipelago by the Canadian aboriginal peoples. It has been indicated that implementing the Nunavut Land Claims Agreement¹⁰  could help bolster the Canadian claim as the Agreement clearly states that “Canadian sovereignty over the waters of the Archipelago is supported by the Inuit use and occupancy¹¹ . This occupancy can thus be said to represent “an important component of the strategy to assert, affirm and express Canada’s Arctic sovereignty,” of which Inuit leaders are fully supportive¹¹ .

Even though not yielding to protests from other countries, Canadian authorities have been open for “talks on the matter”, and have welcomed cooperation with United States or other Arctic States on the condition that the Canadian claim is fully respected. It has been stated that “any cooperation with the United States or with other Arctic nations, shall only be on the basis of full respect for Canada’s sovereignty² . Talks with United States resulted in an agreement in 1988¹² . Referring to the uniqueness of ice-covered maritime areas and to the search for increased knowledge of such areas through the use of ice-breakers, Canada and the United States agreed to facilitate navigation by their icebreakers in their respective Arctic waters and to develop cooperative procedures for this purpose. The agreement states that all navigation by U.S. icebreakers within waters claimed by Canada to be internal will be undertaken with the consent of the Government of Canada.

The agreement does not interfere with the two countries diverging positions on the legal matter, as it is clearly stated that neither their cooperative endeavour laid down in the agreement, nor any practice there under, affect the position neither of the Government of the United States nor the Government of Canada on international maritime law in this or other maritime areas or their respective positions regarding third parties. The two countries have in other words since 1988 maintained their respective legal positions, but at the same time had in place a practical solution.

Even though there has been no formal change in the position of the United States, and the dispute between the two countries on this matter goes on, it has also been suggested that the U.S. may come to regard the Canadian claim as more palatable politically and legally⁹ . This is related to concerns regarding the necessity of policing the Northwest Passage, and that this is better taken care of through the Canadian legal claim over the Passage than by it being defined as an international strait. This may relate to what has been indicated above, namely that the Canadian government seems to support international shipping through the Northwest Passage as long as Canadian regulations are followed. It goes without saying that it is the pollution and other possible negative implications of shipping in most of the Northwest Passage.

An alternative between the two positions has also come forward namely to define the Northwest Passage as neither internal waters nor international strait, but rather as territorial waters, implying that the Passage would open for innocent passage⁹ .

Brit Fløistad and Lars Lothe, 2010, Northwest Passage and Jurisdictional Controversy, CHNL.©