E-mail A Friend Tell a friend about the information found on this page by sending them an e-mail.   Your Name: Your E-mail:   Type an e-mail address, then click add: Add a Personal Message: (Optional)

November/December 2000 issue	In this issue Table of Contents Editor’s Notebook The Inside Story Feature: Alert, Nunavut À la carte Curious by nature Reverberations

On Alert | Northern Shortcut | Alert facts | Alert in brief | Links

THE FASTEST SEA ROUTE from Europe to Asia or from one coast of North America to the other is still via the Panama Canal. But climate change may be opening an even quicker route from the Atlantic to the Pacific through the fabled Northwest Passage, in the Canadian Arctic. Thick ice has long made the Passage impenetrable until the midnight sun opens a brief window in August. By late October, it is closed once again. Anecdotal evidence and climate studies suggest that all this may be changing.

The extent of the sea ice in the Arctic shrank some 6 percent between 1978 and 1996. As well, probes have shown that the ice has thinned by about 40 percent in the past 30 years (from an average thickness of 3.1 metres to 1.87 metres). Some scientists have suggested that with these trends, the Northwest Passage could be open for navigable passage, possibly even year-round, within 10 to 15 years. (Other scientists, however, aren’t so sure that ice conditions at its eastern entrance will ever permit easy navigation.)

Norwegian explorer Roald Amundsen was the first to traverse the Northwest Passage, between 1903 and 1906. No crossing was made again until the 1940s, when the RCMP vessel St. Roch did so under the command of Sgt. Henry Larsen. Since then, there have been some 50 transits. This past summer, an expedition organized by the Vancouver Maritime Museum and the RCMP retraced Larsen’s crossing in the St. Roch II and the Coast Guard icebreaker Simon Fraser. They reported that they encountered almost no pack ice all along the route.

The United States realized the vast potential of the Northwest Passage early on and, over the years, has tested the Canadian government’s resolve and its claim to sovereignty by sending nuclear submarines and icebreakers through the Passage. The most recent transit was made last summer by the U.S. Coast Guard icebreaker Healy. Although the United States no longer disputes Canada’s sovereign claim to the Arctic islands, it believes foreign vessels have the right to navigate the Passage. International law may be on its side.

At issue is the legal definition of an international strait, which in law is considered any body of water "used for international navigation between one part of the high seas and another part of the high seas" and through which passage must be assured. The 110-odd international straits around the world provide vital avenues of transit and were enshrined in the first Law of the Sea Convention in 1958, and again under the current 1962 Convention, as untouchable maritime thoroughfares.

Foreign ships do need to exercise certain duties during their passage (proceed without delay, refrain from the threat or use of force, comply with international regulations preventing collisions, reduce and control pollution, etc.), but no coastal state can suspend or hamper a foreign vessel’s passage. The one exception may be the section which might allow Canada to intervene in the case of a ship that is "causing or threatening to cause major damage to the environment." However, the weight of centuries-old customary international law regarding unhindered passage through such straits, the law enshrining this right, international court precedents and actual state practice reaffirming it are all on the side of an eager international navigation community hoping for early use of the Northwest Passage.

A coastal state can prevent a vessel from sailing "if it ascertains that a vessel is in violation of applicable international rules and standards relating to seaworthiness … and thereby threatens damage to the marine environment." But at present, Canada does not even have the means to keep track of vessels nearing the Northwest Passage much less monitor their condition or inspect them. Moreover, the average number of shipping accidents annually in Canadian waters (more than 600) does not bode well, given the likelihood of such mishaps occurring in the far more accident-prone and environmentally vulnerable Arctic.

Morris Maduro is a professor of international law at the University of Regina who specializes in the law of international waterways.

top