Environmental concerns

For many Canadians, the legal status of the Northwest Passage is not just a matter of national pride, one that merges with a wider suspicion and mistrust of American motives. Another big consideration is the fate of the Arctic environment, which could so easily be damaged by an oil spill from just one passing tanker. At times the Canadian government has doubtlessly used this as a convenient fig leaf with which to disguise other motives, but it is nonetheless still an important consideration in its own right.

Canada's concern about the environment became clear in the wake of the Manhattan's voyage in 1969. Although it was not carrying oil at any stage of its journey, the ship was slightly damaged by ice and this prompted Ottawa to introduce the Arctic Waters Pollution Prevention Act as a piece of domestic legislation. Under this law, Canada claimed a right to impose certain safety standards on any vessels passing through waters that reached up to 100 miles off its shores. Unless it was built, navigated and operated according to certain standards, the law decreed, then a ship could be barred from moving through the Passage.

Strictly speaking, the enforcement of this legislation would have been contrary to international law, which at this time did not give rights to a coastal state over any stretch of water beyond the 'territorial sea' that lay immediately adjacent to its shorelines. But Ottawa was in no mood for compromise and warned that it would not necessarily respect any contrary ruling by the International Court of Justice (ICJ).15 Prime Minister Trudeau claimed that 'we're saying somebody has to preserve this area for mankind until the international law develops. And we are prepared to help it develop by taking steps on our own'.16 Meanwhile the Minister for External Affairs, Mitchell Sharp, referred to the 'gap' that existed in international environmental law and expressed his ambition to 'deal with a pollution threat of such a magnitude that even the vast seas and oceans of the world may not be able to absorb, dissolve or wash away the discharges deliberately or accidentally poured into them'.17

Canada's position on both the environmental protection and the wider legal status of the Northwest Passage was put forward soon after the voyage of the Polar Sea, when the minister for external affairs asserted that there are 'straight baselines around the Canadian Arctic archipelago'. This had far-reaching implications because it meant that any seas that fell within those baselines were 'internal waters', and that the surrounding 'territorial sea' covered a proportionately wider area because it could be measured not from the existing baseline, along the mainland, but further out to sea, from the archipelago, instead.

Crucially, this new definition gave the Canadian government much greater powers over all maritime traffic. Since these were 'internal waters', Ottawa could lay down environmental regulations, just as the ministerial statement emphasized that Parliament would bring in 'new legislation to enforce Canadian and criminal laws in the offshore areas enclosed by the straight baselines'.18 And if any ship refused to toe the line, it could be barred from crossing the Passage altogether, since it generally has no 'right of innocent passage' through internal waters. If, on the other hand, there is an 'international strait' running through these internal waters, then ships from the world over have a right to make 'transit passage' that coastal states have much less

power to interrupt.

Some of the initiatives that Canada first introduced in 1970 have subsequently been formally incorporated into international law. So in those places where perennial ice creates exceptional navigational hazards, Article 234 of the 1982 Convention allows coastal states to enforce rules and regulations against maritime pollution throughout the surrounding 200-mile economic zone. But other claims made by Canada have been hotly disputed. For example, the baseline it draws through the Arctic archipelago is highly controversial because the 1982 Convention, or earlier treaties that preceded it, does not give much guidance about how such a line should be drawn.20 In particular, the United States strongly argues that the Northwest Passage, far from being Canada's 'internal waters', is really a 'strait' that has previously been 'used for international navigation' and through which it therefore has a right of 'transit passage'. It is in this regard that the trips made by the Charlotte, Polar Sea and Manhattan become important: every time any vessel passes along the Northwest Passage, it becomes easier for Washington to make a convincing case that the waters have been 'used' in this way.21

Since ratifying the 1982 Convention in 2003, the Canadian government has had the option of enforcing environmental standards on maritime traffic not by declaring the Passage as its 'internal waters' but by appealing to Article 234 instead. So far it has downplayed this option because the legal status of this clause is far from clear: Washington denies that it gives Canada or any other coastal state a right to prevent the transit of a ship that is deemed to pose an environmental danger.

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