Breaking the Ice: The Canadian-American Dispute over the Arctic's Northwest Passage
Abstract
On January 11, 1988, fast upon the heels of an historic Free Trade Agreement, Canada and the United States signed a four-clause Agreement on Arctic Cooperation (the Agreement). Initialed by the Canadian Minister of External Affairs and the U.S. Secretary of State, the Agreement purported to calm a turbulent aspect of the two North American neighbors' generally harmonious relationship: the long-running dispute over the legal status of the Northwest Passage (the Passage) and the waters of the Arctic archipelago. The Agreement formally requires the United States to seek the consent of the Canadian government when sending U.S. icebreakers through the Passage. However, the Agreement does not attempt to resolve the long-standing difference in legal positions on the question of sovereignty over the waterways of the Arctic archipelago. Thus, as has been the case for several decades, the United States continues to maintain that the Passage is an international strait, while Canada declares it and all the waters of the Arctic archipelago to be "internal waters." Furthermore, under the Agreement, both nations reserve the right to take the dispute to international arbitration or the International Court of Justice (ICJ). Sections II and III of this note examine in some detail the background of the Northwest Passage controversy, particularly the Canadian and American positions as they have evolved over time. Sections IV and V undertake a critical analysis of Canadian and American legal claims and the theories underlying them. Given crucial flaws in those divergent legal positions, Section VI argues for a bolder agreement on the Northwest Passage and Arctic waters that takes full account of the law of the sea, Canadian sovereignty concerns, and U.S. security interests.