Analysis of Canadian LegislationConcerning Control of the Northwest Passage

WANG Zelin

Analysis of Canadian Legislation
Concerning Control of the Northwest Passage

WANG Zelin*

The U.S.government insists that the Northwest Passage is an international strait,namely a strait used for international navigation.But Canada considers the Northwest Passage its historic internal waters,and has enacted a series of acts and regulations to strengthen its control of the Passage.Based on the relevant legislation of navigation in Canada’s Arctic waters,this article analyzes the significance of such legislation for the control of the Northwest Passage.

Canada;Northwest Passage;Arctic Waters

Ⅰ.The USSS Manhattan and Legislation of AWPPA

The US-flagged SS Manhattan was the first commercial ship to break through the Northwest Passage(NWP).Even though the Manhattan carried no cargo on her initial the NWP voyage(the tanks were filled with water to simulate loading)starting from the US east coast in August 1969,the shippicked up a symbolic barrel of oil in Alaska,returning to New York a merchant hero in September.①D.M.Mccrae,The Negotiation of Article 123,in Franklyn Griffiths,ed.,Politics of the Northwest Passage,pp.99～100.Quoted from Guo Peiqing,Research on the International Problem of Arctic Passage,Beijing:Ocean Press,2009,p.69.This test of navigation was completed with the assistance of icebreakers John A.Macdonald and Northwind,belonging to the Canadian and American Coast Guards,respectively.However,the US did not seek Canadian prior consent for this journey.②Raymond W.Konan,The Manhattan’s Arctic Conquest and Canada’s Response in Legal Diplomacy,Cornell International Law Journal,Vol.3,1970,p.190.

The Manhattan voyage of 1969 evoked strong opposition among Canadians,who petitioned the Canadian government to assert its sovereignty in the Arctic.At the same time,the Canadian government also realized the far-reaching implications of the Manhattan incident,which officials feared would create a precedent of commercial navigation in the Northwest Passage and cause other states to follow its example,thus seriously undermining Canada’s claim of sovereignty over its Arctic territory.①The Manhattan incident also stimulated the Canadian government to“bolster Canada’s traditional claims and to win support for some untraditional Canadian proposals to protect Canadian interests in the Arctic.”②

In order to prevent pollution in the Arctic,the Canadian government put forward three solutions(namely a declaration of sovereignty,drawing straight baselines and expanding maritime jurisdiction)in October 1969.③The three solutions were all ultimately implemented by Canada.In the Throne Speech debate of October 24,1969,Prime Minister Trudeau,instead of making a definitive statement on sovereignty,referred to the need for legislation to protect the ecological balance of the Canadian Arctic,and indicated that this would be done by anti-pollution regulations.Pollution then became the key issue;Trudeau declared that these measures were not intended to proclaim Canadian sovereignty but were an expression of Canada’s regard for“herself as responsible to all mankind for the peculiar ecological balance that now exists so precariously in the water,ice and land areas of the Arctic archipelago…Canada will propose a policy of use of the Arctic waters which will be designed for environmental preservation.”The international community was invited to join with Canada in its promotion of a new concept:“an international legal regime designed to ensure to human beings the right to live in a wholesome natural en-vironment.”①Robert S.Reid,The Canadian Claim to Sovereignty over the Waters of the Arctic,The Canadian Yearbook of International Law,Vol.12,1974,pp.120～121.

On November 11,1969,Prime Minister Trudeau visited United Nations Secretary-General U Thant in New York for talks on pollution control in the Arctic and other issues.②“Trudeau plays down Arctic control issue”,The Globe and Mail,November 12,1969, p.1.They talked about the need for a co-ordinated and urgent effort to develop international control for the Arctic waters,temporarily shelving the sovereignty aspect.Canada was hoping to garner international support for its novel proposals for control of the Arctic waters via international anti-pollution measures.In February 1970 Canadians were made acutely aware of the immediacy of the potential problem of oil pollution when the Liberian tanker Arrow went aground in Chedabucto Bay,causing oil pollution of the waters and adjacent coasts of Nova Scotia.As a result of this incident the Canadian government in March 1970 imposed a number of safety regulations to be observed by the Manhattan during its second voyage in April 1970 through Parry Sound.③Robert S.Reid,The Canadian Claim to Sovereignty over the Waters of the Arctic,The Canadian Yearbook of International Law,Vol.12,1974,p.124.On April 8,1970,the Canadian government introduced the Arctic Waters Pollution Prevention Bill,which was approved unanimously by the House of Commons.④The unanimous vote was 198 to 0 and was purposely staged to“l(fā)et the whole world know that on this question Canadians are united and unanimous.”See The Globe and Mail,A-pril 22,1970,p.1.Quoted from Robert S.Reid,The Canadian Claim to Sovereignty over the Waters of the Arctic,The Canadian Yearbook of International Law,Vol.12,1974,p. 124.

On April 15,1970,at the Annual Meeting of the Canadian Press,Trudeau emphasized,“Our pollution legislation is without question at the outer limits of international law.We are pressing against the frontier in an effort to assist in the development of principles for the protection of every human being on this planet.”But technically,the extension of jurisdiction was said to have derived from the contiguous zone concept.⑤Barnaby J.Feder,A Legal Regime for the Arctic,Ecology Law Quarterly,Vol.6,1978, p.806.On the same day,the US government issued a press release summarizing a long diplomatic note sent to Canada,in which it challenged the international validity of the Canadian legislation in light of the traditional principles of the law of the sea.The US was“concerned that this action by Canada if not opposed by us,would be taken as precedent in oth-er parts of the world for other unilateral infringements of the freedom of the seas…Merchant shipping would be severely restricted,and naval mobility would be seriously jeopardized.”①Dept.of State Press Release No.121(April 15,1970),reprinted in International Legal Materials,Vol.9,1970,p.605.Robert S.Reid,The Canadian Claim to Sovereignty over the Waters of the Arctic,The Canadian Yearbook of International Law,Vol.12,1974,p. 127.

On April 16,1970,the Canadian government officially replied to the United States government in a note in which it repeated its preference for an international regime and stated that it was“the earnest hope of the Canadian Government that it will be possible to achieve international accepted rules for Arctic navigation within the framework of Canada’s proposed legislation.”Canada stated that the Arctic Waters Pollution Prevention Act(AWPPA)was justified on the basis of“the overriding right of self-defence of coastal States to protect themselves against grave threats to their environment.”Moreover,Canada viewed its unilateral action as a positive contribution to the development of international rules since it is a well-established principle that customary international law is developed by state practice.And finally,Canada rejected the US proposal to submit the dispute of its legislation to the International Court.②Robert S.Reid,The Canadian Claim to Sovereignty over the Waters of the Arctic,The Canadian Yearbook of International Law,Vol.12,1974,p.128.

The AWPPA applies to the Arctic Waters which are defined as waters“adjacent to the mainland and islands of the Canadian arctic within the area enclosed by the sixtieth parallel of north latitude,the 141st meridian of west longitude and a line measured seaward from the nearest Canadian land a distance of one hundred nautical miles…”(now it is 200 nautical miles)③In the amended Arctic Waters Pollution Prevention Act 1985,“arctic waters”means“the internal waters of Canada and the waters of the territorial sea of Canada and the exclusive economic zone of Canada,within the area enclosed by the 60th parallel of north latitude, the 141st meridian of west longitude and the outer limit of the exclusive economic zone…the international boundary between Canada and Greenland...shall be substituted for that outer limit.”Thus,Canada expanded its Arctic Waters to the same limits of its exclusive economic zone,that is,200 nautical miles.Arctic Waters Pollution Prevention Act 1985, Article 2.,and the outer limit of Arctic Water between Canada and Greenland is the equidistant line.④Arctic Waters Pollution Prevention Act 1970,Article 3(1).Obviously,the main reason for the United States to protest was that the jurisdiction of Canada AWPPA had been extended to encompass what was then regarded as high seas.

The Arctic waters include waters both in a liquid and frozen state.①Arctic Waters Pollution Prevention Act 1970,Article 3(2).The Act prohibits and prescribes penalties for the deposit of“waste”in Arctic waters or on the islands or mainland under conditions which may cause said waste to enter the Arctic waters.②Arctic Waters Pollution Prevention Act 1970,Article 4.

The Act authorizes the Governor in Council to designate any area of the Arctic waters as a“shipping safety control zone”,to issue regulations relating to navigation in these zones and to prohibit foreign vessels from entering any such zone unless it meets the prescribed regulations.③Arctic Waters Pollution Prevention Act 1970,Article 12.The Act further grants“pollution prevention officers”broad powers,including the authority to board ships within a shipping safety control zone for inspection purposes,and evaluate whether the ships comply with the standards applicable within the zone.④Arctic Waters Pollution Prevention Act 1970,Article 15.

Chart 1 Canada Shipping Safety Control Zones⑤Canada Shipping Safety Control Zones Order.

“Except as authorized by regulations made under this section,no person orship shall deposit or permit the deposit of waste of any type in the arctic water or in any place on the mainland or islands of the Canadian arctic under any conditions where such waste or any other waste that results from the deposit of such waste may enter the arctic waters.”①Arctic Waters Pollution Prevention Act 1970,Article 4(1).The master of any ship that deposits waste in violation of AWPPA provisions or is in distress and for that reason is in danger of causing any deposit should immediately report the deposit of waste or the condition of distress to a pollution officer.②Arctic Waters Pollution Prevention Act 1970,Article 5(2).

Ⅱ.The Mandatory Reporting Regime of Canada’s Arctic Waters

Canada enacted a series of acts to strengthen controls on the Northwest Passage after the legislation of the AWPPA.In addition to the AWPPA,the other relevant acts and regulations adopted so far are the Arctic Waters Pollution Prevention Regulations(AWPPR),Arctic Shipping Pollution Prevention Regulations(ASPPR),Canada Shipping Act(CSA)2001,Marine Liability Act (MLA),Marine Transportation Security Act(MTSA),and Navigable Waters Protection Act(NWPA).③At http://www.tc.gc.ca/eng/marinesafety/debs-arctic-acts-regulations-menu-2272.htm,1 September 2011.

The Arctic Waters Pollution Prevention Act(AWPPA)and the Arctic Waters Pollution Prevention Regulations(AWPPR)provide measures to prevent vessel-source pollution,and in particular the deposit of waste into Arctic waters.The Arctic Shipping Pollution Prevention Regulations(ASPPR)deal with construction and operational aspects of navigating in the Arctic,including the need for Ice Navigators.The ASPPR contains the Zone/Date System(Z/ DS),which divides the Arctic into 16 safety control zones,each with fixed opening and closing dates for ships of various ice capabilities.④At http://www.tc.gc.ca/eng/marinesafety/debs-arctic-acts-regulations-zdschart-2014.htm,1 September 2011.

The Canada Shipping Act(CSA)2001 is Canada’s principal piece of legislation governing shipping.It applies in all Canadian waters,including the Arctic.The Marine Liability Act(MLA)makes the owners and/or operators of vessels responsible and liable for their vessels and the consequences of their operations.The Marine Transportation Security Act(MTSA)addresses marinetransportation security.It applies to ships and marine facilities in Canada,as well as to Canadian ships outside of Canada.The Navigable Waters Protection Act(NWPA)prevents navigation from being impeded or made more dangerous,and it also regulates ferry cables and draw bridges.

In 1977,Canada established the“Northern Canada Traffic Regulation System”(NORDREG),which requires all ships entering Canada’s Arctic waters to report to the Canadian Coast Guard,however it is a voluntary reporting regime,instead of a mandatory obligation.

In complement to the Canada Shipping Act(CSA)2001,Canada enacted the Northern Canada Vessel Traffic Services Zone Regulations,which came into force on July 1,2010.According to the Regulations,any ship domestic or foreign entering Canada’s Arctic waters should mandatorily report to Canada under given conditions.A brief description of the extent of this new reporting zone’s application as well as conditions that require reporting is as follows:

Chart 2 NORDREG Zone①NORDREG Zone,at http://www.tc.gc.ca/eng/marinesafety/debs-arctic-shippingoperations-nordreg-357.htm,1 March 2011.

A.The reporting zone is coterminous with the original NORDREG zone. For the scope of the zone,see the following chart;for more detailed provisions, see article 2 of the Regulations.

B.The department of receiving ships’reports:NORDREG CANADA and one of the Marine Communications and Traffic Services Centers that is designated by the Canadian Coast Guard to receive the report.①Northern Canada Vessel Traffic Services Zone Regulations,Article 10.

C.The classes of ships that must report:②Northern Canada Vessel Traffic Services Zone Regulations,Article 3.

1.Vessels of 300 gross tonnage or more;

2.Vessels that are engaged in towing or pushing another vessel,if the combined gross tonnage of the vessel and the vessel being towed or pushed is 500 gross tons or more;and

3.Vessels that are carrying as cargo a pollutant or dangerous goods,or that are engaged in towing or pushing a vessel that is carrying as cargo a pollutant or dangerous goods.

The Regulations identify general information to be included in all ships’reports,such as vessel’s name,flag state,vessel speed,vessel coordinate position,vessel’s cargo,and also stipulate other informational requirements that apply to vessels when they are in different positions.There are four different report types:firstly,sailing plan reports are submitted when a vessel is about to enter the NORDREG Zone;secondly,position reports,for immediately after a vessel enters the NORDREG Zone;thirdly,final reports,on the arrival of a vessel at a berth within the NORDREG Zone and immediately before a vessel exits the NORDREG Zone,and finally,deviation reports are required either when a vessel’s actual position varies significantly from that presented in the initial sailing plan report or else a vessel changes its intended course so that it no longer matches the original sailing plan report.

In effect,beginning on July 1,2010,Canada has required mandatory reporting under certain given conditions for those ships which navigate through the Northwest Passage,while in the past it was voluntary for ships to report to the coast guard provided they did not call at port.From the Canadian perspective, the mandatory reporting regime is necessary to address environmental security concerns,providing a mechanism for the Canadian Coast Guard to promote the safe navigation of vessels,monitor vessels carrying pollutants,fuel oil and dan-gerous goods,and respond quickly in the event of an accident,①Arctic vessels must register in Canada,at http://www.cbc.ca/news/canada/north/story/2010/06/22/arctic-nordreg-marine-regulations.html,22 June 2010.and it also serves as a platform to provide information or icebreaker services for vessels.

Ⅲ.Analysis on the Legislation of Canada for Northwest Passage Control

Canada’s position concerning the Northwest Passage was not very clear in the past,but the fog was lifted in 1975,when the Secretary of State for External Affairs Allan Mac Eachen stated,“As Canada’s Northwest Passage is not used for international navigation and since Arctic Waters are considered by Canada as being internal waters,the regime of transit passage does not apply to the Arctic.”②Canada,Proceedings of Standing Committee on External Affairs and National Defence, No.24,p.6(22 May 1975);emphasis added.Donat Pharand,Canada’s Arctic Waters in International Law,1st ed.,New York:Cambridge University Press,1988,p.215.

Canada maintains that the Passage comprises part of its historic internal waters,over which it enjoys full sovereignty.This includes the right to unilaterally pass laws or regulations that apply therein to protect Canadian interests. Canada does not oppose international navigation in the Northwest Passage,nor is it in Canada’s interest to prevent it.But if the Passage were considered an international strait,Canada would not have the right to pass and enforce its own laws or regulations governing international shipping.Instead,international safety and marine standards would apply.③William P.C.Rompkey and Ethel M.Cochrane,Rising to the Arctic Challenge:Report on the Canadian Coast Guard:Report of the Standing Senate Committee on Fisheries and O-ceans,Journals of the Senate,Thursday,March 12,pp.21～25.Although there are no clear provisions dictating that foreign ships must request permission or consent from Canada before entering the Northwest Passage,judging from Canada’s practice and legislation,we can safely surmise that,as far as the Canadian government is concerned,seeking its prior consent is obligatory,not voluntary.

In recent years,cases that involved icebreakers belonging to Russia,the Bahamas and Sweden have proved that navigation through the Northwest Passage requires Canada’s prior consent.④Guo Peiqing,Research on the International Problem of Arctic Passage,Beijing:Ocean Press,2009,p.148.According to the Canadian Coast Guard,86 ships entered Canada’s Arctic waters in 2007,including research ves-sels from Denmark,Germany and Russia.There were 11 transits of the Northwest Passage,5 of them by cruise ships.①Northwest Passage opening or not?,at http://www41.statcan.gc.ca/2008/4017_3119/ ceb4017_3119_001-eng.htm,6 February 2010.

The Manhattan’s transit of the Northwest Passage in 1969 evoked a strong reaction from the Canadian people,as it failed to obtain prior consent from Canada.In 1985,the crossing of the US Polar Sea icebreaker without Canada’s prior consent aroused yet another diplomatic dispute.On January 11, 1988,the two countries signed the Agreement between the Government of Canada and the Government of the United States of America on Arctic Cooperation,which stipulates,“The Government of the United States pledges that all navigation by U.S.icebreakers within waters claimed by Canada to be internal will be undertaken with the consent of the Government of Canada.”②Agreement between the Government of Canada and the Government of the United States of America on Arctic Cooperation(11 January 1988).

But the Agreement’s contents are still vague to some extent.Although Paragraph 4 of Article 3 requires that US icebreakers need prior consent from the government of Canada,Paragraph 3 stipulates that“the Government of Canada and the Government of the United States agree to take advantage of their icebreaker navigation to develop and share research information,in accordance with generally accepted principles of international law,in order to advance their understanding of the marine environment of the area.”③Agreement Between the Government of Canada and the Government of the United States of America on Arctic Cooperation,Article 3,Paragraph 3.Such a provision paves the way for tacit cooperation between the two countries,that is, every time when a USicebreaker files a navigation application for marine scientific research in this area,the Canadian government should,in keeping with this provision,automatically approve the application.However this Article,interpreted in the strict sense of the terms as defined in the Agreement,does not require USicebreakers to obtain Canada’s prior consent if the purpose of navigation is not marine scientific research in this region.In addition,the above A-greement only applies to icebreakers owned or used by the United States government,without involving other types of ships.Thus the issue of other ships’right to transit the Northwest Passage remains to be settled.

Therefore,from a practical point of view,except for the 1969 Manhattan oil tanker and 1985 Polar Sea icebreaker of the United States,no other ships have crossed the Northwest Passage without Canada’s prior consent.Evenconfronting such a powerful neighbor as the United States,the Canadian government still refuses to compromise,insisting that the waters of the Northwest Passage in the Arctic Archipelago comprise Canada’s internal waters,over which it enjoys full sovereignty,thus requiring all foreign-flagged ships to seek prior consent before transiting the Northwest Passage.

In addition,Canada’s existing legislation shows a gradual progression of constantly strengthening its control of and governance capacity within its Arctic waters.From the AWPPA to the recent NORDREG reporting regime,Canada has been steadily enhancing its actual control of the Arctic waters.For example,in the Arctic Shipping Pollution Prevention Regulations,Canada has stipulated the construction and operational standards for ships navigating in its Arctic waters and divided the Arctic into 16 safety control zones,each with fixed opening and closing dates for ships of various ice capabilities.Ships navigating in these safety control zones must abide by those standards and dates, otherwise they are not allowed to navigate in the Arctic waters.Further,the ASPPR stipulates that no non-Canadian ship that is not a ship under the 1960 or 1974 International Convention for Safety of Life on Sea shall navigate in the Arctic waters unless it complies with certain regulations of Canada.①Canada,Arctic Shipping Pollution Prevention Regulations,Article 4.

Although the AWPPA of 1970 and other acts or regulations enacted by Canada afterwards do set forth some requirements that ships navigating in the Arctic waters must abide by,none of them has gone so far as to oblige these ships to report to the Canadian government.Therefore,if a ship neglected to report when navigating in Canada’s Arctic waters and the Canadian government did not discover it,then the navigation would be beyond Canada’s control.As stated above,the Northern Canada Vessel Traffic Services Zone Regulations require any ship entering Canada’s Arctic waters to report mandatorily under given conditions—it is particularly relevant to take note of the fact that the report zone is equivalent to the NORDREG Zone,far larger in scope than Canada’s previous shipping safety control zones.

The outer limits of Canada’s shipping safety control zones overlap the outer limits of its exclusive economic zone,which means foreign ships entering certain areas of Canada’s EEZ must report to Canada.Of course,the report regime is convenient for Canada to monitor foreign ships,and to check whether the construction of these ships meets the standards for navigation in the Arcticwaters and whether they discharge any waste illegally or other matters.

It may be that Canada’s AWPPA and other relevant acts and regulations comply with the provision relating to ice-covered areas codified in Article 234 of the United Nations Convention on the Law of the Sea,however the UNCLOS does not require foreign ships to report to the coastal State when merely passing through the coastal State’s EEZ,so it is an issue to be studied as to whether Canada’s mandatory reporting regime violates international law.At the core of the discussion is the obligation that foreign ships crossing the Northwest Passage in Canada’s Arctic waters must report to Canada,and such reports will allow Canada more ample time to decide whether to allow foreign ships to cross the Northwest Passage.

In summary,Canada has exercised substantive control over the Northwest Passage through legislation and practice,and through this action its claim that the Northwest Passage in the Arctic Archipelago constitutes Canada’s internal waters and not a strait used for international navigation has gained considerable legitimacy.In the future,if any dispute on the legal status of the Northwest Passage arises,this solid legal backing would undoubtedly serve as persuasive evidence for Canada in the final judgment.

(Editor:DENG Yuncheng; English Editors:CHEN Xiaoshuang;Joshua Owens)

*WANG Zelin,Lecturer,School of International Law of Northwest University of Politics& Law,China,Ph.D.Postdoctoral researcher of the Shanghai Jiao Tong University and adjunct assistant researcher of the Center for Oceans Law and Policy of Shanghai Jiao Tong University.This paper is funded by a joint project of Department of International Cooperation(Office for Hong Kong,Macao and Taiwan)of the State Oceanic Administration, People’s Republic of China and the Polar Research Institute of China,entitled“Analysis on the Legislations&Policies on Canada’s Northwest Passage”(Project Number:QY201001 -04).E-mail:wangzelin@gmail.com.