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In August 1985. the U. S. Coast Guard icebreaker Polar Sea (WAGES-11), on her voyage from Thule, Greenland, to the Chukchi Sea, steamed through the Northwest Passage. Once notified of the impending transit, Canada informed the ynited States that it considered all waters of the Canadian Arctic archipelago as historic internal waters and that a request for authorization to transit the Northwest Passage would be necessary. The United States refused to make such a request, taking the position that the Northwest Passage was an international strait. As a result, the two governments agreed that the Polar Sea's transit would take place without prejudice to their respective legal positions.
The incident aroused deep emotion in Canada and, the very next month, the Secretary of State for External Affairs, Joe Clark, announced a number of measures to enable Canada to exercise effective control over the Arctic waters in general and those of the Northwest Passage in particular. Two of those measures were the construction of a “Polar 8” icebreaker and the establishment of straight baselines around the Arctic archipelago. The latter is of special legal consequence to Canada’s claim of sovereignty over the Northwest Passage.
In his announcement, Clark specified that the baselines defined “the outer limit of Canada’s historic internal waters.”1 To make it clear that Canada stood ready to have the International Court of Justice adjudicate the international validity of its sovereignty claim, Clark announced at the same time that the government was withdrawing the 1970 reservation to its acceptance of the court’s jurisdiction.
There can be only two legal bases for Canada’s claim of sovereignty: a historic title and the straight baselines themselves. (The sector theory, occasionally
Canada’s Arctic Waters
Straight Baselines lllllllllltfHifl 100-mile Pollution Prevention Zone 200-mile Fishing Zone Route of the Polar Sea
Canada's territorial waters extend 12 miles seaward of the straight baselines that define the outer limit of Canada's historic internal waters. Canada's concern is that if it does not take effective territorial control measures—such as acquiring nuclear-powered submarines would provide—the Northwest Passage could become an international strait through which vessels of all nations would have the right of transit.
ie geographic criterion is met when- territorial waters in the natural pas- 2 between adjacent landmasses overjoining two parts of the high seas (or
'nvoked in the past by Canada, cannot Serve as a legal basis for a claim to sover- e'gnty in general, nor one to maritime sovereignty in particular.) To some (in- j-'uding this author), the historic title as's has doubtful validity. Canada w°uld have to establish that over the •Vears it has exercised the same kind of delusive control that is required to ac- ‘luire sovereignty over land areas. Can- a^a would also have to show that its ■aim has been met by the acquiescence foreign states, particularly those directly affected. Clearly, these require- Irients can hardly be met.2
The straight baselines, however, do Constitute a legal basis in international aw- The geography of the archipelago ^akes it absolutely impossible to mea- territorial waters by following the *'nuosities of the coast or of the islands, nese must be drawn outside the archi- ^ago from straight baselines established acr°ss the indentations and between the ®uterrnost points of the islands. Norway eveloped this system in 1812 and the ,nternational Court of Justice approved it ln the Fisheries Case of 1951. It was then Incorporated, with a few changes, in the dritorial Sea Convention of 1958 and Ie Law of the Sea Convention of 1982.
.s application to the Arctic archipelago, ,n accordance with the legal require- "Jer«s, has resulted in making the en- °sed waters, including those of the 0rthwest Passage, internal waters.3 *n spite of this conclusion, the fact ernains that the validity of those lines is ’*1 Unrecognized by some. Since Sep- ■hber 1985, no one has persuaded the n*ted States to honor Canadian sover- 'gnty over those waters, because of differences in the applica- e 'egal regimes, it is important to deter- clne whether the Northwest Passage °uld have been characterized as an inter- °nal strait before it was enclosed by baselines. If it could, the freedom of , age was virtually the same as that on high seas. The 1982 Law of the Sea invention describes the type of passage (.PPlicable to “straits used for intema- cial navigation,” but does not say ncn a strait may so be considered. The t,n|y international decision on this point is at of the International Court in the °//m Channel Case of 1949. q "he court held in the Corfu Channel that an international strait must
l two criteria:
I hi «ver 
sea of a foreign state. If there is no overlap of territorial waters, and a strip of high seas (or economic zone) remains throughout the strait, the principle of freedom of the high seas continues to apply. International law now permits a 12-mile territorial sea. Therefore, the question of sovereignty arises only when a strait is 24 miles or less in width.
► The functional criterion requires that a strait has been a useful route for international maritime traffic, as evidenced mainly by the number of ships using the strait and the number of flags represented, before it can be classified as an international strait.
In holding that the North Corfu Channel was an international strait, the court found that the actual use of the channel by foreign ships had been quite extensive. The 2,884 crossings counted during a 21 -month period covered only the ships that had put into port and had been visited by customs. It did not include the large number of vessels that went through the strait without calling at the port.
The Northwest Passage meets the geographic criterion for an international waterway without difficulty, insofar as it links two parts of the high seas. Indeed, the eastern end of the Passage leads to Baffin Bay, Davis Strait, the Labrador Sea, and the Atlantic Ocean, whereas the western end leads to the Beaufort Sea, the Chukchi Sea, the Bering Strait, and the Pacific Ocean. The criterion for an overlap of territorial waters was also met in 1970 when Canada extended its territorial sea from three to 12 miles, resulting in an overlap in the Barrow Strait.
The Northwest Passage fails to meet the functional criterion, however. In its 80-year history, the passage has seen only 45 complete transits and, of these, 29 were by Canadian ships. The 16 foreign crossings comprised 11 U. S. ships, one Norwegian, one Dutch, one Japanese, one Bahamian, and one Liberian. The historic Norwegian crossing by Roald Amundsen was one of discovery, the Dutch and Japanese were adventure crossings, and the Bahamian and Liberian were pleasure cruises. Aside from the first discovery crossing, these non- U. S. transits were preceded by a request and grant of authorization.
Three of the 11 U. S. transits were accomplished in 1957 by a three-ship squadron of icebreakers, performing hydrographic surveys during the joint Cana- dian-U. S. establishment of the Distant Early Warning System. HMCS Labrador led all three ships through the narrow Bellot Strait. Two U. S. submarine crossings tested the feasibility of submerged transits of the Northwest Passage. In 1960, the USS Seadragon (SSN-584) had a Canadian representative on board, and the USS Skate (SSN-578) made her crossing in 1962 within the context of U. S.-Canadian defense arrangements. The United States made five of its other six transits in 1969, when the icebreaking Manhattan tanker, loaded with water, made her feasibility voyage and was accompanied for part of the voyage by the U. S. Coast Guard icebreakers Staten Island (WAGB-278) and Northwind (WAGB-282). The Manhattan carried a Canadian representative on board and was escorted by the Canadian icebreaker John A. MacDonald. The last U. S. crossing was that of the Polar Sea in 1985. This resulted in the establishment of straight baselines.
It is clear, therefore, that by no stretch of the imagination could the Northwest Passage be considered an international strait. Those who maintain that the Passage may be so classified obviously confuse actual use with potential use. The latter test is the one U. S. courts use to determine whether or not a waterway is navigable. But it is not the criterion of actual use required in international law and applied by the International Court. In addition, with the possible exception of the cruise ships Lindblad Explorer and World Discoverer (both of which asked Canada’s permission), not one of the few foreign transits could be characterized as constituting commercial navigation.
The conclusion that the Northwest Passage was not an international strait, however, does not mean that no right of passage existed before the straight baselines were drawn. Indeed, because the Passage was territorial, the traditional right of innocent passage had to apply. It was applicable at least as much as in any territorial waters, since these were part of a strait. Of course, because the strait was not used for international navigation, Canada could suspend the right of innocent passage for security reasons.
Three questions must be addressed:
Is there a right of passage since the straight baselines were established?: Under customary international law, as applied by the International Court in the Fisheries Case, there is no right of international passage whatsoever through waters enclosed by straight baselines. This is the result regardless of the previous status of the newly enclosed waters. However, the straight baseline system was modified when it was incorporated in the 1958 Territorial Sea Convention. This made the enclosed waters subject to the right of innocent passage if they had previously been territorial waters or high seas. Since Canada is not a party to the
tional Atomic Energy Agency
Of 11 U. S. crossings of the Passage in 80 years, most, like that of the tanker Manhattan, have been with Canadian cooperation. Above, HMCS John A. MacDonald escorts the Manhattan.
Convention, naturally it would rely on customary law to determine the validity of jts straight baselines and the resulting legal status of internal waters (if that status cannot rest on a historic title). But such reliance might not be completely secure, because the 1958 Convention provision could have become part of customary law.
The 1958 Convention came into force in 1964, with 22 ratifications. Since then, the number of ratifications, accessions, and successions has raised the membership to 45. These 45 states, however; include only 21 of the 60 states that have actually used the straight baseline system and only two of the additional 12 that have adopted enabling legislation. But 49 nations that have actually used straight baselines or have adopted enabling legislation have not become parties to the Convention.
One cannot, therefore, conclude that the acceptance of the 1958 provision for innocent passage in newly enclosed internal waters has been so general as to become legally binding on all states. The International Court made it clear, in the Gulf of Maine Case of 1984, that much more was required before it would find that such a customary law exists. It held, in that case, that the equidistance method of continental-shelf delimitation had neither become a rule of customary law nor would be given preference over other methods. The court so held despite the fact that the 1958 Continental Shelf Convention, which provided for such rule, had been in force since 1964 and 54 states were parties to it. In addition, the great majority of at least 80 delimitation agreements, concluded since 1958, had been based on the equidistance method, either strict or modified. Consequently, it is highly unlikely that the court would hold that Article 5 of the Territorial Sea Convention has become binding on all states on the basis of a newly created customary rule. It is even more unlikely that the provision for innocent passage represented an important departure from existing customary law. Accordingly, no right of innocent passage exists in the new internal waters of the Northwest Passage.
Could the Northwest Passage become an international strait?: The possible internationalization of the Northwest Passage will depend on the degree of international navigation and the measures that Canada will take to exercise control over such navigation.
► International Navigation: International navigation has already begun in the eastern part of the Passage to transport minerals from Nanisivik Mine, south of Lancaster Sound, and Polaris Mine, north of Barrow Strait. And it seems to be only a question of time before regular shipping takes place from Melville Island, north of Viscount Melville Sound, and from the Beaufort Sea along the full length of the Northwest Passage. Oil will probably come from both the Canadian and the Alaskan sides of the Beaufort Sea.
Although the threshold of international use in the Corfu Channel Case of 1951 was fairly high, a considerably lower threshold would probably suffice in the Northwest Passage. Because of special factors, such as the region’s remoteness, the difficulties of navigation, and the absence of alternative routes, comparatively little use might be required. A pattern of international shipping across the Passage, developed over relatively few years, might be held sufficient to make it international. In the Eastern Greenland Case of 1933, the Permanent Court of International Justice recognized that the application of general principles of law to the Arctic regions must take into account the special local conditions.
► Possible Control Measures: An internationalization of the Passage presumes, of course, that Canada would allow the passage of foreign ships, without taking appropriate measures to ensure effective control over such ships and the waters W question.
Although the enclosure of those waters has resulted in a sovereignty for Canada that is as complete as over the islands, such sovereignty must be maintaine - and this can only be done by the exercise of effective control. A first measure should be the immediate construction o the “Polar 8” icebreaker. That ice breaker will greatly assist Canada in Pr° viding the full range of sea- and lan based services required for safe naviga tion in those ice-covered waters. Sue services should be ready when the Non west Passage is used for commercial nav igation and will play a key role in ailin' ing Canada’s presence and control-
A second measure should be to con elude bilateral agreements with foreig shippers. Those agreements would recog nize the Passage as Canada’s and set o the conditions for foreign use of the wa^ terway—conditions including the use Canadian icebreaking and, possibly, P^ lotage services. A bilateral agreement ^ this nature has already been discuss with the United States, but has not y materialized. Part of such an agreeme could even be complementary to exts Canada-U. S. defense arrangements a
could provide conditional use of the r sage by U. S. submarines.
A third step should be for Canada ^ develop an effective capability to de and control submarines. Whether ^ necessarily means the acquisition ot ^ clear-powered submarines, as announc in the government’s recent White ”aP^ on National Defence, remains a 4U ' tion.5 The use of enriched or weap0^ grade uranium to fuel these submart ^ would not constitute a breach of Cana obligation under the Nuclear Non-Prt’ eration Treaty of 1968 (“not to manu a ture or otherwise acquire nuclear ons or other nuclear explosive devices ^ nor would it be contrary to the Safegua Agreement concluded with the Inte ^
United Nations. However, such mi ^ use (albeit defensive) would be a dep ture from Canada’s long-standing P° ^ in favor of the strictly peaceful useS^j nuclear energy and, perhaps, a rather^ precedent for some of the other _ nuclear-weapon states that have traded the same obligations. . f
What right of passage would aPP , the Northwest Passage is internal'1'^ ized?: At the insistence of the major . itime powers and as part of an m , package, the Third Law of the Sea
reached a consensus as to the type
Passage applicable in straits used for lntemational navigation. This new right, "korporated in the 1982 Convention and galled “transit passage,” is one of free- ’)tT1 of navigation and overflight. It may ^ exercised by all ships, including war- n‘Ps and submarines in their normal 'J'ode of passage. More specifically, if e Northwest Passage were intemation- IZed, submarines of all states (Soviet as as U. S.) would be completely
. 'thin their navigational rights under the ice.
Of course, the 60 ratifications neces- 5ary to bring the 1982 Convention into rce are far from attained, and transit Passage is not yet part of customary interzonal law. However, state practice |n,Sht well develop in that direction and entually materialize into a rule of cus- jfmary law. This would be particularly so Z'ajor maritime powers follow such a ^actice and the other states directly af- ljC|ed do not protest. In this regard, the nUed States has given certain indica- l®ns that it intends to follow that course. 11 a is proclamation of an exclusive eco- 0|aic zone in March 1983, President
Ronald Reagan stated that “unimpeded commercial and military navigation and overflight are critical to the national interest of the United States” and added that it would “continue to act to insure the retention of the necessary rights and freedoms.”7 The President also warned at the same time that the United States will not “acquiesce in unilateral acts of other States designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.”8 The United States certainly implemented this policy at the time of the Polar Sea crossing in August 1985.
I therefore conclude that:
► Canada’s claim of a historic title to the waters of the Canadian Arctic archipelago is of doubtful validity.
► Canada’s straight baselines, established around the perimeter of the Canadian Arctic archipelago in September 1985, are valid in international law and the enclosed waters have the status of internal waters.
► The Northwest Passage is a Canadian national waterway since its enclosure by straight baselines, without any right of innocent passage; however, if adequate control measures are not taken, it could become an international strait and the new right of transit passage would eventually apply in favor of all ships, including submarines.
'Statement in the House of Commons, 10 September 1985, Communique No. 85149, Department of External Affairs, p. 3.
2For a full treatment of this question, see Pharand, Canada’s Arctic Waters in International Law (Cambridge University Press, 1987).
3Ibid., for a legal appraisal of the Canadian Arctic straight baselines.
4See T. C. Pullen, “What Price Canadian Sovereignty?” Proceedings, September 1987, pp. 66-72. ^Ministry of National Defence, Ottawa, Challenge and Commitment, a Defence Policy for Canada, 1987, pp. 52-53.
6Article III of Nuclear Non-Proliferation Treaty, which entered into force on 5 March 1970 and which 135 parties signed; see 729 U. N. Treaty Series 161. Proclamation reproduced in 22 International Legal Materials, (1983), p. 162.
8See M. N. Leich, “Contemporary Practice of the United States Relating to International Law,” 77 American Journal of International Law, 1983, p. 620.
Professor Pharand is a professor of international law at the University of Ottawa.
e Soviet Northern Sea
y R°ben B. Houston
e become a source of bitter dispute ng nations. Both Canada and the
•heir Serts, are j
territory. But the United States as- in both instances, that the waters
lhe Northern Sea Route. In fact, how S|^f’ h continued to permit only Soviet 'Ps to transit its Arctic waters.1 No SonIC vessei °i any country has ever
K "'e (except for the German raider
,°r centuries the domain of Eskimos explorers, the icy waters of the Arctic
')viet Union claim sovereignty over the •°Us straits, passages, and seas near ‘nternational. he United States has no desire to pro- ^ e ammunition to anti-American ele- 51ents in Canada, but it cannot adopt an llude toward Canadian claims over the i^hwest Passage that might jeopardize (k P°sition vis-a-vis the straits north of s: Soviet Union, which that country, c | e 1932, has developed into its so- ycet* great Northern Sea Route. Twenty ars ago, the Soviet Union hinted that it allow foreign vessels, for a fee, to
E0hf» .. J '
j^0 length of the Northern Sea
v te (except for the German raider [>' during the brief Hitler-Stalin pact ber8Ust 1939-June 1941]2). On 1 Octo- viel987, at a speech in Murmansk, So- General Secretary Mikhail Gorbachev again raised the possibility of the Soviet Union’s opening the Northern Sea Route to foreign shipping, subject to the “normalization of international relations,” and possibly a “radical reduction in the level of military confrontation” in the Arctic.3
All this brings to mind the oceanographic voyages of U. S. Coast Guard and Navy icebreakers in Soviet Arctic waters in the 1960s. The Coast Guard’s Northwind (WAGB-282) was the first to conduct such measurements in the summer of 1963.4 During her mission, she crossed the Sannikov Strait into the Laptev Sea without having first notified Soviet authorities.
Building on this, the United States instructed its embassy in Moscow in mid- 1964 to inform the Soviet Main Administration for Hydrometeorological Services that the Navy icebreaker Burton Island (AGB-1) planned to travel from Kodiak Island to Spitsbergen and back in that summer, conducting oceanographic surveys en route. The United States requested that the Soviets transmit hydrometeorological information to the Burton Island, which was scheduled to begin her voyage on 8 July.5 Ice conditions along the Northern Sea Route were good in 1964; the navigation season opened at the end of June and was not officially closed until mid-November.6
The Soviet Foreign Ministry replied to the embassy on 21 July that Soviet authorities could release the requested information to the ship if her exact schedule and route were made known. The Foreign Ministry added, however, that the Northern Sea Route had been used only by “ships belonging to the Soviet Union or chartered in the name of the Northern Sea Route.” The Soviet Union has “for a period of decades spent significant funds on the Northern Sea Route, which is considered an important national line of communication of the USSR.” The Foreign Ministry noted that Soviet territorial waters overlapped all East-West straits in the Kara Sea. Furthermore, it asserted that the Dmitry Laptev and Sannikov straits belong historically to the Soviet Union, and that neither serves international navigation. Therefore, the ministry asserted, “the Law for the Protection of the State Borders of the USSR fully applies” to all these straits. In accordance with that statute, foreign military ships seeking to use these or other internal or
 tusive economic zones, since 1982) or Part of the high seas with the territorial