Internal waters

In the Arctic Ocean, and elsewhere in the world, the status of some stretches of water is difficult to define partly because of the complex formation of the islands in their midst. The Northwest Passage, for example, stretches between the Davis Strait and Baffin Bay in the east and the Bering Strait in the west (Map 2). But the cluster of numerous islands, rocks, barriers and reefs in this area makes its true nature very hard to determine in both geographic and legal terms. At what point, geographers and lawyers both ask, does a cluster of islands, lying adjacent to the coast, become an extension of the mainland, thereby making its waters 'internal' and essentially no different from a river or canal?

In the case of Canada and Russia, this question is difficult enough to answer. But the controversies have been more heated because the 1982 Convention on the rights of any country to move through internal, or any other, waters is not fit for purpose.

Canada's 'internal waters'

Canada's own Arctic regions have long been an integral part of its sovereign territory. These huge expanses of land, which cover millions of square miles, were first brought under the control of the central government in the course of the nineteenth century. In 1870, a private commercial organization, the Hudson's Bay Company, transferred ownership of its territories in the far north to the newly formed dominion of Canada. A decade later Great Britain formally ceded its claim to the myriad of Arctic islands where a succession of English seafarers, notably Martin Frobisher and William Baffin, had planted the national flag. Today the Canadian Arctic is made up of three separate provinces: Nunavut, which alone covers 750,000 square miles (nearly one-fifth of Canada's land mass), Yukon and Northwest Territories. The national anthem even includes a reference to 'the True North, strong and free'. As a government minister claimed emphatically in September 1985, 'the Arctic is not only a part of Canada, it is part of Canadian greatness'.14

But although no one disputes Canada's ownership of its Arctic lands and the thousands of offshore islands, the status of the surrounding waters is very much harder to determine. The issues are twofold: can the Canadians draw their borders around the outer fringes of these islands, claiming that the waters within are 'internal'? And, if so, can any other country claim that they have a right to move through those internal waters?

The Canadians themselves are adamant about the status of these waters. In 1969, Prime Minister Pierre Trudeau stated that 'the area to the north of Canada, including the islands and the waters between the islands and the areas beyond, are looked upon as our own and there is no doubt . . . that this is national terrain'.15 Sometimes these claims have led to diplomatic incidents, a few of which have been minor, quickly forgotten and even humorous: in 1977, when a Soviet ice station, SP22, drifted a couple of hundred miles off course in the Northwest Passage, a Canadian plane flew overhead and dropped a message that read 'Welcome to Canada'. But there have also been moments of serious tension between Canada and the United States over the issue of where 'internal waters' lie.16

Some of the rules of international law that cover these points are clear: under the Convention on the Law of the Sea, which Canada ratified in 2003, every coastal country can claim two different stretches of water as part of its sovereign territory.17 The first are the 'internal waters', such as rivers and canals that lie on its 'landward side'.18 The other is the belt of adjacent water, known as the 'territorial sea', that is located 'up to a limit not exceeding twelve nautical miles' from its coast (Map 1).19 Although, under the same agreement, international shipping has a 'right of innocent passage' through the territorial sea, the coastal state has a right to close these waters 'if such suspension is essential for the protection of its security'.20 Beyond this 12-mile area and the coastal state's 'contiguous zone' and 'exclusive economic zone' that lie even further out to sea, are the 'high seas' that are 'open to all states'.21

What is not so clear is whether the Convention gives Canada the right to draw its borders around its fragmented northern coasts. This can sometimes be done by 'a state constituted wholly by one or more archipelagos', although 'other islands' may also have the same right.22 However, long before the 1982 treaty came into effect, the ICJ had decreed that a state with a fragmented coastline can sometimes draw its baselines around the outer points of any offshore islands, even though they 'must not depart to any appreciable extent from the general direction of the coast'.23

Foreign ships still have a right to use 'internal waters' if a strait that is 'used for international navigation' runs through them. In this situation 'all ships and aircraft enjoy the right of transit passage' through these internal waters.24 A ship that makes 'transit passage' through a strait enjoys much more freedom of navigation than it would have if making an 'innocent passage'.25

These are the issues that lie at the heart of one long-running dispute between Canada and other foreign governments, notably the United States. Canada claims that the Northwest Passage is comprised of its 'historic internal waters' and thus falls under its jurisdiction and con-trol.26 Its lawyers point to the 1951 'Anglo-Norwegian Fisheries case', a Norwegian claim but which some experts say has similarities to Canada's geographic claim. Ottawa's title to the fragmented coastline, or 'coastal archipelagos', is particularly strong, they argue, because centuries of traditional practice by the indigenous Inuit people make their waters 'historic'.27

By contrast, the United States has disputed Canada's claims, denying that it has any 'internal waters' in the Northwest Passage and pointing out that, in any event, there is an 'international strait' there.28 This is an opaque legal area. According to the 1982 Convention, a 'strait', under maritime law, is a body of water 'used for international navigation'. This phrase clearly implies 'usage' over a period of time, even though before the treaty came into force the ICJ had occasionally argued that this is of no necessary relevance.29 The trouble for the Americans is that their claim is far from convincing - only 11 foreign transits were made through the whole length of these waters between 1904 and 1984 - and because they have not been previously used as an international navigation or shipping route on any significant scale, many observers say that they fail to qualify as a strait.

The Canadians have also pointed out that the Passage, at its narrowest points, is less than 24 miles across and any shipping therefore moves through its overlapping territorial seas, which under the 1982 Convention fall within a 12-mile radius of both coasts.30 But this claim would still not prevent the United States or any other country from arguing the existence of a 'strait', which can run through internal waters, territorial sea or an exclusive economic zone. This was one reason why, in 1993, Ottawa tried to buttress its claim by passing a piece of domestic legislation, the Nunavut Land Claims Agreement, that stated 'Canada's sovereignty over the waters of the Arctic archipelago is supported by Inuit use and occupancy'.31

Such arguments have failed to convince Washington, and the dispute between the two countries seems set to continue. In January 2009, just days before leaving office, President George W. Bush issued a directive bluntly proclaiming that 'freedom of the seas is a top national priority'. It continued by stating that:

The Northwest Passage is a strait used for international navigation, and the Northern Sea Route includes straits used for international navigation. Preserving the rights and duties relating to navigation and overflight in the Arctic region supports our ability to exercise these rights throughout the world, including through strategic straits.32

Russia's 'internal waters'

Moscow has also long argued that the Northern Sea Route that crosses its Arctic shores is a Russian, rather than an international, sea lane (Map 2). In a document that was published in 1990, the route was described as 'the essential national transportation line of the USSR that is situated within its inland seas, territorial sea (territorial waters), or exclusive economic zone adjacent to the USSR Northern Coast'.33 But while Moscow's claim goes back at least to the 1940s, the most important single declaration of recent years was issued only in 1984, when a Soviet proclamation drew a clear baseline around parts of the northern coasts and islands and decreed that any waters that fell within that border were 'internal'.34 To win a right to sail through these waters, foreign governments would have to demonstrate that there was already an international strait running through them.

There could be a serious dispute in the years ahead if, for example, American vessels try to cross the Northern Sea Route but find their journey blocked by Russian warships. This is what happened in the 1960s, when the United States government sent a number of icebreakers and marine research vessels into these waters, which it claimed were either 'high seas' or 'territorial seas' through which they had a right of innocent passage. Between 1962 and 1964 several such voyages went unchallenged by the Soviet authorities, but in 1965 the journey of the United States coast guard cutter Northwind through the Vilkitsky Strait provoked strong diplomatic protests by Moscow. Washington abandoned this attempt and 2 years later cancelled other missions along the same route by USCGC Edisto and Eastwind.

At the time Moscow had decreed that the Vilkitsky and other straits, if not the seas around them, were its 'territorial sea' and that it needed prior notice to arrange icebreaker escort.35 An alternative line of argument, based on the decree of 1984, was that the strait fell within its baselines and its waters were therefore 'internal'.36

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