MARITIME LAW: SOVEREIGNTY IN THE ARCTIC.
The Changing Arctic
The Arctic region is changing literally and figuratively. In the literal sense, natural temperature variability and rising temperatures linked to global warming continue to cause the Arctic ice pack and Arctic sea ice to decrease at a concerning rate. (1) Since 1979, NASA satellites have monitored and produced a constant record of the Arctic ice levels, substantiating this decrease. (2) The period between 2007 and 2016 heightened global concern as the record indicates that the average annual decrease has become much more dramatic than that of decreases from previous years. The Arctic ice pack and Arctic sea ice has decreased by 40% since the satellite monitoring began in 1979. This period has seen the lowest levels of the Arctic ice pack and Arctic sea ice levels, unmatched in recent human history. (3) A release by the National Snow & Ice Data Center has shown that the Arctic sea ice extent in 2017 has been the lowest since the satellite records began in 1979. (4) Credible projections indicate that this trend will continue, and that it is likely to become more drastic. It is becoming widely known and increasingly noticeable that the once ice-entombed Arctic is melting.
In the figurative sense, the Arctic will become a significant economic and geopolitical region of the world. The decrease of the Arctic ice pack and the Arctic sea ice will reveal untouched land and seabed, rich in oil and minerals, and expose previously unnavigable waters and shipping lanes during the summer months. The newly navigable waters will be vital to the ability of states to control and economically benefit from the Arctic region. The 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS) defines the rights and responsibilities of states with respect to their use of the world's oceans. (5) Yet, this convention is principally unable to resolve which states have territorial claims to some of the navigable waters in the Arctic region. Uncertainties surrounding territorial claims remain a preliminary question in the application of the 1982 UNCLOS in the Arctic region. However, the historical inaccessibility of the Arctic waters and the lack of activity in the region created disinterest in adjudicating territorial claims at the International Tribunal for the Law of the Sea (ITLOS) and International Court of Justice (ICJ). To date, differing opinions regarding claims to these waters have formed the basis of the conversation between the Arctic states. (6) However, the recent (7) turning of the capitalistic tide in the United States of America (U.S.) and the ambition of the Government of China will undoubtedly turn what has been a moderate disagreement into a more intense dispute, as states seek to exercise their rights to these waters.
Claim to the Northwest Passage: An Exercise of Sovereignty
As an Arctic state and founding member of the Arctic Council, (8) Canada will be involved in the global dispute regarding territorial claims and the rights and responsibilities of states in the Arctic region. (9) Canada is currently a principal party of a long-standing but dormant dispute regarding territorial claims; more specifically, a dispute regarding the international legal status of the Northwest Passage (NWP). The NWP is an ocean route comprised of a series of straits/sea lanes through the Canadian Arctic Archipelago. This Archipelago was assigned to Canada from Britain in 1880. (10) Indeed, it is not the route nor the archipelagic land that is the subject of the international dispute, but the NWP's international legal status under the 1982 UNCLOS. (11) Canada claims that the waters within the NWP have the international legal status of Canadian internal waters. The NWP dispute is critical to Canada's ability to assert their sovereignty in the Arctic. Recognition of this status would accord Canada the authority to deny all foreign vessels, both commercial and military, the use of the NWP. (12) Many states, predominantly the U.S., do not recognize Canada's assertion that the NWP is Canadian internal waters, as they seek to have access to, and use of, the NWP, with as much freedom or rights during vessel passage as legally attainable. Thus, other states, namely the U.S., consider the waters to be an International Strait. (13) Ultimately, the NWP will not have a definitive legal status unless this matter is either settled between the principal states, or is adjudicated by the ITLOS or the ICJ.
It is the value of the transit of the NWP for commercial and military vessels that propels the dispute. It is estimated that the Arctic contains 13% ([approximately equal to] 90 billion barrels) of the world's undiscovered conventional oil resources and 30% of the undiscovered natural gas resources. (14) One-third of the undiscovered oil lies within the Arctic territory of the U.S. Through the implementation of the recent executive order titled "America-First Offshore Energy Strategy," it is foreseeable that these resources will be realized in the near future. (15) Extraction and transport of these resources will increase the need and value of transit through the NWP. The NWP offers a route through the Arctic Sea, between the Pacific and Atlantic Oceans. There exist five major routes that can be used depending on a number of factors: the size of the vessel, the vessels ice-breaking capability, the ice conditions, and the adequacy of current navigational information. (16) Three of the five routes have been identified as having the greatest commercial viability and are predicted to be ice-free from July until September by the end of this century--at the latest. (17) If the predictions about the usability of the NWP are correct, ships will be attracted to the beneficial usage of Canadian Arctic waters. Use of the NWP for transit from Eastern Asia and Europe is approximately 7,000 km shorter than the current route through the Panama Canal this will save time and reduce the cost of transit. The Danish-operated Nordic Orion became the first bulk carrier to traverse the NWP in September 2013, saving approximately $80,000 in fuel. (18) This transit was registered with, and received permission from the Canadian Coast Guard. Thereby, it did not undermine Canada's legal position regarding the NWP. (19) It is uncertain whether other states and their vessels will respect Canadian authority in this manner or seek to transit the NWP without permission. However, following the successful transit of the Nordic Orion, it is certain that other states and their vessels are planning to use the NWP. In 2016, the Government of China publicly announced their ambition and encouragement of the use of the NWP for commercial transit. This announcement was accompanied by the publication of the Arctic Navigation Guide (Northwest Passage). This Guide was published without consultation with Canada and offers extensive information regarding the transit of the NWP. (20) Further, the NWP can also accommodate super-tankers and container ships that are too large for the Panama Canal. Naval aircraft carriers are also too large for the Panama Canal and may be attracted to an ice-free NWP. (21) Indeed, the importance of the NWP is evident from the many beneficial usages of the passage. The international strait status, asserted by the U.S., provides the highest degree of freedom for vessel passage, allowing states to take advantage of the economic and geographic/transportation benefits listed above. (22)
Canada reserves the potential to gain substantial economic benefits from the use of the NWP. However, Canada must comprehensively consider a balance of the benefits and the risks associated with the use of the NWP before transit activity increases. As the NWP is a route through the Canadian Arctic Archipelago, it is Canada's duty to first consider the detrimental effects of the use of the NWP on the Canadian Arctic environment and the Arctic peoples. There are many Inuit communities along the NWP that should not be discounted by the size of their population. Communities such as Qausuittuq (Resolute), Uqsuqtuuq (Gjoa Haven), Iqaluktuuttiaq (Cambridge Bay), Qurluktuk (Kugluktuk), and Ulukhaqtuuq (Ulukhaktok) are located on the three routes identified as having the greatest commercial viability. It is important to note that these communities may benefit from a reduction in the cost of supplies and unemployment if activity in the region increases. However, these communities are likely to experience the most severe negative impacts.
In particular, oil extraction can significantly benefit the Canadian economy. However, oil spills, caused by drilling, extraction and transportation, have more severe effects in the Arctic region when compared to spills in more temperate climates. In high-latitude, cold ocean environments, oil persists for longer periods. (23) Low temperatures and insufficient sunlight result in low rates of natural oil evaporation and decomposition. This is substantiated by the effects of the 1989 Valdez oil spill that occurred in the sub-Arctic region. The Exxon Valdez spilled approximately 42 million litres of crude oil, resulting in contamination of 1,990 kilometers of shoreline. It has been estimated that approximately 302 harbor seals, 2,000 sea otters, and 250,000 seabirds died in the days following the spill. (24) Fish populations and larger marine mammals will suffer long-term ill effects from this spill and it will take up to 30 years for shoreline habitats such as mussel beds to fully recover. (25) More than a decade after this event, researchers report that a significant amount of oil persists in this region. (26) If the oil becomes trapped in ice, the long-term impacts of Arctic oil spills can be more devastating than previously thought. (27) The National Academy of Sciences have concluded that "no current cleanup methods remove more than a small fraction of oil spilled in marine waters, especially in the presence of broken ice."...
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