Could a Kiwi Sailor’s Northwest Passage Transit Break the Legal Ice Between Canada and the U.S.?

By Cornell Overfield
Friday, September 25, 2020, 8:01 AM

Off the coast of Canada’s northern archipelago, a 52-foot sloop flies the New Zealand flag as it plies the waters from Nome to Lisbon. The Kiwi Roa, a 26-year old sailboat and Peter Smith’s home since 1994, is no stranger to polar waters. Since launch, she has carried her 72-year-old owner some 80,000 nautical miles, from New Zealand fjords to Greenland ice faces.

And yet in late August, this seasoned tandem faced new headwinds. Short-term coronavirus regulations led the Kiwi Roa and Smith to inadvertently challenge Canada’s long-standing claim that the waters of the Arctic archipelago and the Northwest Passage are internal waters—a position contested by the United States and several other countries. The Kiwi Roa’s voyage could help redefine the Northwest Passage’s legal status and change the environmental, economic and political contexts of the passage’s use in a warming world. Specifically, the coronavirus and the Kiwi Roa incident create an opportunity for Canada and the U.S. to align their positions through a compromise in which the U.S. recognizes Canada’s straight baselines while Canada concedes the existence of innocent passage rights in the Northwest Passage.

The Canadian Arctic is home not just to a fragile environment but also to fragile communities with limited access to medical care. As the coronavirus swept the world, fears rose in Canada that ships from outside the region could bring the virus to isolated indigenous communities with devastating consequences. In May, as ice that had clogged the Northwest Passage melted, Transport Canada responded by implementing temporary regulations prohibiting pleasure craft from sailing in “Canadian waters north of the 60th parallel.” Foreign pleasure craft “exercising the right of innocent passage” in accordance with Article 19 of the U.N. Convention on the Law of the Sea (UNCLOS) are exempt from the prohibition but must give notice to the minister of transport and may be subject to “any conditions” deemed necessary by Transport Canada.

Smith initially coordinated with Transport Canada to obtain clearance for his voyage “as a mark of respect.” After the Kiwi Roa left Nome, however, the ministry informed Smith that his trip would not be allowed. Yet Smith sailed on. After being spotted near Cambridge Bay, in the western end of the Canadian Arctic, Transport Canada apparently ordered the Kiwi Roa to depart the country’s waters. Instead of turning around and expeditiously leaving Canada’s claimed internal waters, Smith announced his intention to complete his journey. Citing his right to innocent passage and the international dispute over Canada’s claim, he wrote to the Canadian Broadcasting Corporation that Canadian officials would “need a SWAT team to make me [turn around].” Indeed, the Kiwi Roa continued along its planned route and exited the Lancaster Sound into the North Atlantic in the first week of September.

Even though the yacht’s journey through Canadian waters is complete, Ottawa’s response may have lasting consequences for the status of Canada’s contested claims in the Arctic.

Canada’s Arctic Claims

According to the United States and several European countries, Canada claims extreme and excessive authority over the waters of the Canadian Arctic archipelago. Since 1973, the Canadian government has claimed that these waters are internal waters, while the United States and others have refused to recognize this contention. At issue is not Canada’s sovereignty over territory but, rather, whether peaceful foreign vessels enjoy automatic and nonsuspendable rights to transit the Northwest Passage or whether Canada can require prior authorization and impose any conditions deemed necessary.

The law of the sea distinguishes between multiple zones, and each designation accords different rights and prerogatives to the coastal state and third-party vessels. The two zones closest to shore are the territorial sea and internal waters. To measure the breadth of the territorial sea and other zones, a state selects basepoints on its coast and occasionally draws straight baselines that connect two points of land separated by water. Territorial sea stretches up to 12 nautical miles seaward from these basepoints and baselines, while all waters landward of these baselines are internal waters. The coastal state is sovereign over both classes but is more sovereign over internal waters. In territorial waters, third-party vessels enjoy automatic rights protected by UNCLOS’s regime of innocent passage. Rights to innocent passage do not generally exist in internal waters.

An important but narrow caveat to this rule exists in cases where a state has drawn straight baselines under the aegis of Article 7 of UNCLOS, which establishes when straight baselines are permissible. UNCLOS provides such exceptions where transit passage rights exist (Article 35(a)) or where the enclosed waters were not previously considered internal waters (Article 8(2)). In the former case, transit passage rights would exist; in the latter, innocent passage rights are accorded. These two types of passage are similar but distinct. Transit passage rights apply only in straits and do not require submerged vessels to surface and fly their flag. Submerged vessels exercising innocent passage must surface and fly their flag. In both cases, the vessel must behave peacefully toward the coastal state.

Canada and its defenders claim that the waters of the Canadian archipelago are internal waters, that the Northwest Passage is not a juridical international strait and thus foreign vessels do not enjoy transit passage rights, and that innocent passage rights do not apply to the waters either. If all three claims were recognized by the international community, Canada would enjoy absolute control over the use of the relevant waters, including the prerogative to discriminate with impunity in granting or denying third-party vessels permission to use the waters to transit between the Pacific and Atlantic oceans.

In 1985, the Canadian government promulgated a schedule of straight baselines that enclosed much of its Arctic archipelago and came into force in 1986 (see map). Under international law, these lines would render all enclosed waters, including those of the Northwest Passage, internal waters. The U.S. and the U.K., on behalf of other European Community states, immediately protested this move. Ever since then, the United States has maintained that these baselines constitute an excessive maritime claim.

Canada’s Arctic Baselines. Dark blue waters landward of the thick black lines are Canada’s claimed internal waters. The Northwest Passage routes are marked by the orange dashed lines. (Source: NGA and U.S. Navy, modified by the author.)

Canadian scholars and the federal government trace the legal basis of Canada’s 1985 straight baselines to historic title and customary international law, while downplaying the relevance of treaty law. (This claim is sometimes dated to 1986, which is when the relevant order came into force.) Canada explicitly bases its general claim and specific straight baselines on historic title. Canada’s 1985 baseline order begins by stating that “Canada has long maintained and exercised sovereignty over the waters of the Canadian Arctic archipelago,” and Canada’s foreign minister framed the 1985 baselines as reinforcing Canada’s historic title.

In his exhaustive research, however, the late Canadian legal scholar Donat Pharand found no historical evidence of such a title to the enclosed waters. Pharand instead concluded that the baselines are legal under customary international law. Canada drew its baselines in 1985, before UNCLOS came into force for the country in 2003. Canada was also not party to the 1958 Territorial Sea convention—the other potentially relevant international agreement. Pharand cited the International Court of Justice’s (ICJ’s) 1951 Fisheries case between the United Kingdom and Norway as articulating the applicable customary international law. By Pharand’s logic, the Arctic archipelago is analogous to the skjaergaard at issue in that case, which was a collection of islands and outcroppings whose collective outer limits Norway claimed as its coastline. As the ICJ upheld that claim as consistent with customary international law, so could Canada lawfully claim that the Northwest Passage is enclosed by straight baselines.

Canada and its legal defenders have consistently denied that the Northwest Passage constitutes an international strait. Although the Northwest Passage connects two different bodies of high seas or exclusive economic zones, they contend that it fails to fulfill the nongeographic criteria of strait-hood. Citing the ICJ’s 1949 Corfu case between the United Kingdom and Albania, Pharand and Michael Byers argued that the Northwest Passage is not an international strait, since it lacks a history of high-volume, multinational traffic—a deciding factor in the ICJ’s Corfu decision.

Both Canada and Pharand also denied the existence of a right to innocent passage. Citing historic title, Canada implied that no right to innocent passage existed prior to 1985 and that Canadian sovereignty over the relevant waters extends back to some distant, unspecified past. Pharand found no evidence for the official Canadian line but reasoned himself to the same conclusion. He argued that UNCLOS’s Article 8 (2) exception (which grants innocent passage rights to vessels in internal waters enclosed by straight baselines) could first apply to the Northwest Passage only in 2003, 18 years after Canada announced its straight baselines. In the meantime, practice solidified around Canada’s claim that the Northwest Passage and other enclosed waters were strictly internal waters. If one accepts Pharand’s logic, the Article 8 exception would not apply either, since Canada’s straight baselines would be based on customary international law rather than Article 7 of UNCLOS. (If, however, Canada redrafted its straight baselines under Article 7, Article 8 could be relevant, since the waters would have “not previously been considered” internal waters prior to 1985.)

History of Transits

Pharand and Byers’s arguments rest heavily on the precedent of practice in Arctic transits. To both scholars, the history of transits supported Canada’s maximalist claims since Canada has always provided consent or assistance to vessels transiting or entering Canada’s claimed internal waters. Two of the most contentious transits are illustrative.

In 1969, a U.S.-flagged oil tanker with an ice-breaking bow, the SS Manhattan, planned the first commercial transit of the Northwest Passage. It planned to chart a course through the high seas channel in the M’Clure Strait that existed in the Northwest Passage prior to Canada’s 1985 straight baseline claim. The M’Clure strait, however, was clogged with heavy ice, so the Manhattan instead relied on Canadian Coast Guard icebreakers and used an alternative route that ran in part through Canadian territorial waters. Defenders of the Canadian position assert that this first commercial transit implicitly recognized Canadian control over the Northwest Passage, since it depended on Canadian icebreaker assistance and pilots. By such logic, continued dependence on Canadian assistance reinforces Ottawa’s claims, even though the nature of those claims has changed since 1969. (Notably, Canada began to develop its more extreme claims only in response to popular outcry over the Manhattan’s voyage).

Canada has also been assiduous about providing permission to vessels transiting the Northwest Passage, even when permission is not sought. Where innocent and transit passage rights do not exist, such as under Canada’s maximalist claims, any foreign vessel entering internal waters must request and receive permission to sail from the sovereign state. This policy of providing permission allows Canada to maintain its narrative that it enforces its rightful claims with international acquiescence.

In 1985, the U.S. Coast Guard vessel Polar Sea planned a transit through the Northwest Passage to demonstrate the route’s potential for future use and to reinforce the U.S. position that the Northwest Passage is an international strait. In accordance with its position, the U.S. government refused to ask permission but, instead, merely notified Ottawa of the planned journey. Here, again, Canada offered assistance in the form of an icebreaker, a pretransit inspection and two ice pilots. Furthermore, Canada’s external affairs minister, Joe Clark, explicitly gave permission to the voyage—an action required by Canada’s claim that the waters are internal. The U.S. Embassy in Ottawa responded by reiterating that permission was neither sought nor accepted and that the Canadian pilots were “invited observers” rather than guides.

The Polar Sea, however, is a poor precedent. First, both sides ultimately agreed to cooperate on this and subsequent U.S. Coast Guard icebreaker voyages without prejudice to their respective positions, formalized in the 1988 Arctic Cooperation Agreement. Second, Canada’s claim to internal waters at the time rested only on the dubious claim of historic title. Only in response to public outcry over the transit did the Canadian government draw straight baselines enclosing the archipelago and formalize its claim to historic internal waters first articulated in 1973. These baselines came into force Jan. 1, 1986, after the Polar Sea completed its voyage.

Nevertheless, in the years since 1985, Canada appears to have exercised control over its claimed internal waters. According to records compiled by Pharand, all subsequent transits in the 20 years from 1986 to 2005 involved both Canadian oversight and prior authorization. His survey encompassed tankers, icebreakers, yachts and other small boats, as well as passenger vessels. Except for the two exceptions described above, all of these vessels acted in ways aligning with Canada’s maximalist claim.

We can conclude that the strongest—albeit still debatable—case for Canada’s maximalist internal waters claims is as follows. In 1985, Canada drew straight baselines in accordance with customary law, since Canada was not bound by either the 1958 Convention on the Territorial Sea or UNCLOS. Transit passage does not apply since the Northwest Passage has not sustained sufficient multinational commercial traffic. Likewise, innocent passage does not apply because innocent passage could have been grandfathered into the Northwest Passage’s regime only in 2003. Though a substantial number of foreign transits took place between 1986 and 2005, all of them recognized and accepted Canadian control over the internal waters and refrained from invoking innocent passage.

The Coronavirus and Canada’s Claims

Ottawa’s response to the coronavirus crisis has undermined the strongest case for its long-standing maximalist claim from two directions. The case of the Kiwi Roa brings both to light. From one side, the Canadian government has adopted regulations that mention a right of innocent passage with respect to its claimed Arctic internal waters. From the other, the Kiwi Roa has completed a transit passage in the face of the Canadian government’s express disapproval. These dynamics undermine Canada’s insistence that neither innocent nor transit passage rights apply to the Northwest Passage. However, it is worth noting that Canada’s claim to internal waters based on straight baselines is not materially affected one way or the other by these developments.

Canada has previously buttressed the claim that no right to innocent passage exists in the Northwest Passage in two ways. Its claim to historic rights, as discussed above, is unsupported by the case’s facts. Far stronger has been Canada’s long-term nonrecognition of innocent passage rights, particularly by never conceding such rights as applicable to the enclosed waters. On this point, however, the pressure of the pandemic caused Canada to crack.

In May 2020, Transport Canada published coronavirus-related regulations on pleasure craft that implicitly concede the right of innocent passage in Canada’s Arctic waters. The regulation defines “arctic waters” as “the Canadian waters located north of the 60th parallel of north latitude” and adjacent territorial waters. Section 3(1) of the regulations prohibits the operation of “pleasure craft in arctic waters, other than rivers and lakes.” Canada does not maintain that the enclosed waters of the Arctic are rivers or lakes. Thus, this regulation is both written and intended for Canada’s contentious baseline-enclosed internal waters, where communities are particularly vulnerable to coronavirus outbreaks. This regulation clearly covers the Northwest Passage, and indeed the Northwest Passage is its principal focus. Section 3(3)(c), however, reads “Subsection (1) does not apply to a person that is operating a foreign pleasure craft that is exercising the right of innocent passage in accordance with international law.” Based on a search of the Canada Gazette, the Canadian government’s official newspaper, this appears to be the first regulation to concede the right of innocent passage for the entire Arctic area, including Canada’s claimed internal waters.

Canada’s defenders might suggest that this exception applies to a null set, since no innocent passage right exists in these internal waters, but a comparison of this regulation with other Transport Canada coronavirus regulations undermines this retort. In other, concurrent temporary regulations, Transport Canada explicitly narrowed the innocent passage exception to the territorial sea. However, in the pleasure craft regulation, the exception in Section 3(3)(c) applies without caveat to Section 3(1), which speaks of all Arctic waters, a fortiori the Northwest Passage and other waters enclosed by Canada’s straight baselines. If Transport Canada intended this exception to apply only to Canada’s Arctic territorial sea on the logic that innocent passage rights did not exist in the enclosed waters, they would have included the language used in their regulations on passenger vessels.

Canadian commentators have recognized this as a grievous error. Speaking to Arctic Today, Michael Byers admitted, “It is astonishing that Transport Canada would make such a basic mistake, especially one that would result in the introduction of COVID-19 into northern communities.” He claims that the Canadian government caught its mistake after an initial announcement granted an exception for “foreign vessels exercising their right of innocent passage through Canada’s Arctic territorial waters [a Canadian term for internal waters,]” since this precise language is absent from the final text. Nevertheless, the initial announcement conceded this language and the final, enforced text contains an implicit innocent passage exception for all Arctic waters.

Furthermore, the Kiwi Roa’s voyage clearly breaks precedent, even if it does not make new precedent. As discussed above, all voyages in the Northwest Passage since 1969 are linked by an unbroken chain of Canadian consent and control. In the Kiwi Roa’s case, however, Canadian government authorities explicitly and publicly ordered Smith to leave Canadian waters. Instead of returning to the closest noninternal waters, he sailed onward and, a week and a half later, exited the Lancaster Sound into the North Atlantic between Canada and Greenland. His successful transit marks the first time that a vessel invoked innocent passage and navigated through the Northwest Passage in defiance of explicit Canadian disapproval. Canada’s claim of effective control will now always have the Kiwi Roa asterisk hanging over it.

The Future of the Northwest Passage

Rising sea levels and melting ice have buoyed the Arctic’s status, unfortunately rendering it a new locus of geopolitical contestation. The economic potential of resource extraction and intercontinental shipping has fueled investment and interest. In recent years, departments and services within the U.S. government have published new strategies for the region, while some observers worry that China will seek to dominate the Arctic to secure hydrocarbons and shorter (albeit not necessarily cheaper) sea routes. With a history of cooperation, the U.S. and Canada must put the long-standing dispute over Canada’s Arctic waters claims to rest. The Kiwi Roa’s transit offers a chance for the pair to stand united and confront the Arctic’s looming geopolitical, economic and environmental challenges.

Transport Canada’s errors open the door to a convenient solution. The U.S. should recognize Canada’s straight baselines while Canada should concede the rights of innocent passage in the enclosed waters. This agreement would be both lawfully correct and politically expedient.

Both sides’ interests would be well served under the proposed compromise. Canada would be able to redraw its straight baselines and claim them under Article 7 of UNCLOS, rather than a nonexistent historic title. Then, the Article 8 exception would come into force, applying innocent passage rights to the enclosed waters. Canada would lose the ability to demand and withhold prior authorization, but it would still be able to enforce environmental laws for vessels in innocent passage (under Article 21(f) UNCLOS), establish sea lanes (under Article 22 UNCLOS), and charge some icebreaker fees. Despite hype, commercial traffic would not likely increase drastically, since the Northwest Passage is more challenging than the Northern Sea route along Russia’s coast. Moreover, the transpolar route may, unfortunately, be available as soon as midcentury.

The U.S. would advance its cause of championing navigational freedoms without losing operational room for maneuver. U.S. vessels, including warships, would be free to exercise their innocent passage rights through the enclosed waters. Furthermore, this would set a potentially useful precedent for the South China Sea, where China’s expansive claims are also based on dubious claims to historic title. Under the proposed solution, the U.S. would still need to obtain permission to operate submerged submarines. Some Canadian sources, including a Canadian defense minister, have intimated that the U.S. and Canada have an agreement regulating U.S. submarine movements in the relevant waters. In fact, a continued obligation to request permission to operate submerged submarines would serve U.S. interests by treating Canada as a true partner in North American defense and denying lawful use of the Arctic archipelago’s waters to Chinese and Russian submarines.

The coronavirus crisis has disrupted political and economic order worldwide. In the Northwest Passage, however, it has created an opportunity for the U.S. and Canada to resolve their greatest outstanding disagreement over the international rules-based order.