The Northwest Passage (NWP) 

(by Brit Fløistad and Lars Lothe)

When sailing along the various routes of the Northwest Passage ships are passing through national waters of the three Arctic states, Greenland/Denmark, Canada and Alaska/USA. The coastal zones established by these states and not least the national legislation introduced in these zones, will form the legal framework for sailing in these waters. Along this Passage there are jurisdictional controversies related to the internal waters of Canada. 

Denmark extended its territorial sea from 3 to 12 nm in 1999, while the territorial sea of Greenland remains 3 nm. A 200 nm EEZ was established outside mainland Denmark in Mai 1996¹  and outside the coast of Greenland in October 2004² , including maritime delimitations towards Canada’s EEZ, with later amendment indicating the delimitation line towards the fisheries protection zone outside Svalbard³ .

The Danish Act on Protection of the Marine Environment of 1993⁴   which as of 2004⁵ , also applies to the waters outside Greenland, aims at preventing and reducing pollution of the marine environment from ships, aircraft and floating and fixed platforms. The Act contains rules on owners, users, masters, and pilots of ships having to report immediately to the Minister for the Environment any discharge or dumping incidents in contra­vention of the Act. An authorized body has the right, without Court order, to examine a ship in order to prevent pollution if discharge has taken place or is likely to take place.

The Self-Government of Greenland is responsible for the marine environment in Greenland’s territorial sea, while the responsibility in the EEZ outside Greenland’s territorial waters is with the Danish Government or more precisely with a special unit⁶   under the Ministry of Defence targeted for and located in Greenland. The intention seems, however, to be that the Self-Government will take over responsibility also in the EEZ⁷ .

Denmark has recently passed a new Act on protection of the marine environment⁸ . At present, this Act does not apply to Greenland, but it is inherent in the Act that this may be proclaimed through a Royal Decree.

Canada passed legislation extending its territorial sea limit from 3 to 12 nm in 1970⁹ . Linking this to the Northwest Passage, it was stated that by this bill Canada had undisputed control over two of the gateways of the Northwest Passage¹⁰ . Control here did, however, not exclude innocent passage, as the waters were defined as territorial rather than internal. In 1973 Canada  claimed these waters to be internal, which to date can be seen in the Canadian Oceans Act of 1996¹¹ . The straight baseline method applied by the Canadian Government in defining its internal waters has caused controversy, and will be dealt with in more detail bellow. 

As for maritime zones, including the territorial sea, definitions are laid down in the Oceans Act of 1996. Apart from defining the above-mentioned baseline and the extension of territorial waters measured to 12 nm from this baseline, the Act also establishes a contiguous zone of 24 nm from this baseline in which Canadian authorities have jurisdiction to prevent the entry of a ship when there are reasonable grounds to believe that an offence under fiscal, immigration or sanitary federal law may be committed. Arresting a foreign ship for breaking these laws will, however, require the consent of the Attorney General of Canada.

Canada’s EEZ was introduced when the Oceans Act came into force in 1997 stating the rights and duties of a coastal state in such a zone laid down in UNCLOS III. The Ocean Act also refers to fishing zones¹²  established within Canada’s EEZ with the more specific regulations laid down in the Fisheries Act of 1985¹³ ,  with the purpose of protecting fish and fish habitat in Canadian waters. These regulations are not related particularly to shipping except by referring to another act that may be said to be of relevance when sailing in Canadian waters, namely the Canada Shipping Act of 2001¹⁴ . This Act, which is one of many Canadian acts related to shipping, applies not only in respect to Canadian vessels everywhere but also “in respect to foreign vessels in Canadian waters¹⁵ . The purpose of this Act is to protect individuals who participate in marine transportation and commerce, to promote safety in marine transportation, and to protect the marine environment from damage due to navigation and shipping activities. It thus contains regulatory measures on registration, listing and recording of vessels, safety, navigation services, incidents, accidents and casualties, pollution prevention and measures related to pleasure craft. Also the Marine Transportation Security Act of 1994 applies to foreign ships in Canadian waters, with regulations¹⁶   requiring foreign ships to report to the Canadian Coast Guard upon entering these waters.

Of relevance to shipping is, not least, the current Arctic Waters Pollution Prevention Act introduced in 1970¹⁷ , initiated as a respond to the U.S. Tanker Manhattan having sailed through the Northwest Passage without permission from the Canadian Government and causing a fear of what such tankers might imply in Canadian waters. The Act applies to what is defined as Arctic waters, “except where otherwise provided”, with Arctic waters being defined as Canada’s internal waters, territorial waters and   EEZ¹⁸ .

According to the Act no person or ship shall deposit or permit the deposit of waste in the Arctic waters or in any place where the waste may make its way into the Arctic waters. Undertakings that are in danger of causing deposit of waste, or waste having been deposited by way of accident shall immediately be reported to Canadian authorities. The responsibility of masters of ships in this respect is particularly mentioned. So is also the joint liability of the owner of cargo and of ships navigating within Arctic waters, for costs, expenses and loss or damage caused by deposit of waste in these waters. Liability is absolute and does not depend on proof of fault or negligence, and claims may be sued for in any court of competent jurisdiction in Canada.

Specifically in regard to shipping, the Act gives Canadian authorities the right to prescribe as a shipping safety control zone any area of what is defined as Arctic waters¹⁹ , and to implement specific regulatory measures in such zones. The actual control zones are laid down in a Shipping Safety Control Zone Order²⁰   describing the latitudes and the longitudes of 16 zones. The extension of a shipping safety control zone has to be within the seaward boundary, which means within “an imaginary line that is measured seaward from the nearest Canadian land a distance of 100 nautical miles²¹ . The actual regulations that the Canadian authorities may implement within these zones apply to ships of any class entering the zone relating to such aspects as hull and fuel-tank construction, including the strength of material used, quantities of fuel, water and other supplies, navigational aids and equipment, manning including the number of qualified navigating and look-out personnel, and type of cargo such as maximum quantity and method of storing. The Canadian authorities may exempt ships of foreign powers from such regulations when it is evident that appropriate measures and reasonable precautions have been taken, but the authorities may also make regulations whereby the owner or master of the ship entering a shipping safety control zone will have to provide a certificate evidencing the compliance with the standards prescribed in the zone as well as evidence of financial responsibility in the form of insurance or any other satisfactory form. A specific feature when it comes to Canadian authorities’ jurisdiction within the shipping safety control zones is thus that it encompass regulatory measures normally to be decided by the Flag state only.

This implies in other words that Canada has an Arctic Waters Pollution Prevention Act which on the one hand gives Canadian authorities pollution control jurisdiction out to 200 nautical miles, while on the other hand jurisdiction out to 100 nautical miles within shipping safety control zones in regard to regulatory measures which normally falls under the Flag state jurisdiction only (see chapter 5).

Worth mentioning is also that Canada has adopted very strict liability and compensation regulations laid down in the Marine Liability Act²² , establishing liability for ship owners when it comes to damages caused by oil spills.

Proposed Regulation

A recent development is that Canada plans to pass new regulations authorised by the 2001 Canada Shipping Act for certain vessels passing through arctic waters extending the jurisdiction already asserted over Shipping Safety Control Zones as described above²³ . The proposed Northern Canada Vessel Traffic Services Zone Regulations are motivated by the need to exercise effective control in the Arctic, especially since shipping activities may increase. The regulations would i.a. require vessels to report information on i.a. identity and route before entering²⁴ . These regulations will replace the existing voluntary reporting described in chapter 5. More controversial, it may be that:

”The proposed Regulations would formally establish a NORDREG Zone that would consist of those waters covered by the shipping safety control zones prescribed by the Shipping Safety Control Zones Order made under the Arctic Waters Pollution Prevention Act. Although the shipping safety control zones currently extend up to 100 nautical miles offshore, work is underway to extend their limits to that of Canada’s exclusive economic zone, up to 200 nautical miles offshore. Since the NORDREG Zone and reporting requirements are directly linked to the area covered by the shipping safety control zones, extending the shipping safety control zones will coincidentally result in extending the NORDREG Zone from 100 nautical miles (under the current voluntary system) to up to 200 nautical miles²⁵ .

It is, in other words, proposed to pass mandatory instead of voluntary reporting up to 200 nautical miles instead as of today, voluntary reporting up to 100 nautical miles.

Pursuant to the proposed regulations, clearance must be obtained before entering the zone and the Canadian authorities may require extensive reporting and conduct close monitoring of the activities.

The enforcement of the new regulations is more vaguely described by the Canadian government. It is said that:

 “In a case of non-compliance, the vessel would be contacted to require that it comply with the Regulations. Where necessary, enforcement action may include follow-up communications with the flag state of a foreign vessel, notification through Port State Control procedures, and possible prosecution in accordance with the CSA 2001 and consistent with international law²⁶ .

United States’ jurisdictional claims in the Arctic Ocean are essentially no different than those applied elsewhere off its coasts²⁷ . In 1988 the country extended its 3 nm territorial sea, claimed in 1793, to 12 nm²⁸ . While a 200 nm EEZ had been established off the coast of the United States on 10 March 1983. Even though not having ratified UNCLOS III, the proclamation of an EEZ refers to international law and defines the rights of the United States within its economic zone the same as those laid down in the U.N. Convention.

Brit Fløistad and Lars Lothe, 2010, The Northwest Passage 1, CHNL.©