The International Push for Free Maritime Navigation: A Brief Summary of Canada’s Contested Sovereignty over the Northwest Passage

By: Richard Schell

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I. Introduction

The Northwest Passage has long been a dream of navigators and explorers, capturing their imagination for hundreds of years in their search for the new and undiscovered. Unfortunately, these intrepid pioneers found themselves up against vast sheets of ice, which stifled their dreams. Due to the recent effects of climate change, however, these Arctic sea lanes may finally be opening. The Passage allows for shorter travel time when compared with navigation through the Panama Canal or through the Strait of Magellan. Nonetheless, difficulties arise as to whether this sea lane is truly open to the world.

For starters, the Passage lies within Canada’s claimed maritime borders, passing through the archipelago divided between Nunavut and the Northwest Territories.[1] As a result of its geographic placement, the Passage falls within what Canada defines as its internal waters, allowing it to exert full sovereignty over these and to bar foreign vessels from transiting through them. Viewing the need for unrestricted access to shipping lanes as a furtherance of global trade and commerce, nations such as the United States have sought to open the Passage to international shipping. However, Canada fully asserts its claim to these waters, as they are not merely coastal shores shared between two nations, such as the Straits of Malacca, but lie firmly within Canada’s own internationally recognized borders, akin to the Sea of Marmara. Furthermore, the Corfu Channel Incident[2] demonstrates the illegality of foreign encroachment, notwithstanding the sovereign’s inaction before a pressing situation. Finally, the Fisheries Case[3] demonstrates the legality of Canada’s actions at expanding its baseline, while underlining the importance international law gives to history and custom.

As a prospectus for future dialogue on the Passage, we will be analyzing applicable law and historical events, with particular focus on the inherent friction of an international waterway and its placement within a country’s internal waters. The conclusions of this paper would hopefully lead to renewed cooperation between Canada and the international community in order to both open the passage to international traffic and to also respect Canadian sovereignty and prerogatives over the waters.

Figure 1

Figure 1 – Possible Routes through the Northwest Passage and Canadian EEZ.[4]

II. History

a. Early Efforts at Navigation

Ever since the Viking Age, European explorers have sought to navigate the waters of the Canadian Archipelago. Early evidence demonstrates Vikings reaching a so-called impassable glacier, which prevented their navigating past their Vinland, known by us as Northern Labrador. Furthermore, due to the end of the Medieval Warm Period, Viking exploratory ventures were hampered by the Little Ice Age and ceased to continue.

Following the European discovery of the Americas, explorers, such as Jacques Cartier and Henry Hudson, began to map out the North Atlantic coast, yet they were unable to find any connection to the Pacific.[5] On the West Coast, James Cook and George Vancouver were both unable to find a passage south of the Arctic Circle.[6] John Franklin made the first known attempt at exploring the Arctic Circle regions, yet his expedition ended in failure as he was never heard from again.[7] The first successful voyage was undertaken by Robert McClure, who was forced to travel by ship and sledge upon losing the former to the ice, confirming the inaccessibility of the passage with contemporary vessels.[8] This route was later followed by Roald Amundsen.[9]

With the advent of modern icebreakers, entirely ship-based voyages have been successfully undertaken since the latter half of the 20th century. The SS Manhattan was the first such vessel, which managed to traverse the region in 1969.[10] Curiously enough and even though the voyage was done with Canadian assistance, the Manhattan did not seek permission nor was it made evident that it required permission to navigate the waters.[11]

Figure2

Figure 2 – Notable Exploratory Voyages of the Northwest Passage.[12]

b. Climate Change and Recent Developments

In 2007, a report by the European Space Agency found that Arctic sea ice had receded far enough during the summer such that the Northwest Passage was finally navigable without the need for an icebreaker.[13] However, it had not yet been proven if this was a mere anomaly or a harbinger of things to come. The latter supposition was confirmed in 2010, when additional reports demonstrated a more consistent pattern in the melting of the ice, at the very least supporting claims of feasible summer voyages through the Passage.[14] Due to these more hospitable sailing conditions, civilian ships have now been able to traverse the Passage without the assistance of icebreakers, such as the cruise ship MS Bremen and the cargo ship MS Nordic Orion, the latter proving the Passage to be a much shorter route for a voyage from Vancouver to Finland.[15] Additional extrapolations have actually suggested that climate change might be strong enough to ensure that the Arctic Ocean will be ice free starting sometime between the middle of the 21st and the beginning of the 22nd century.[16]

Figure 3

Figure 3 – Arctic Sea Ice in September 2012 compared to the 2007 Record Low and Late 20th century median.[17]

III. Applicable Law

a. Sources of International Law Relating to Maritime Transit in the Northwest Passage

i. United Nations Convention on the Law of the Sea (“UNCLOS”)[18]

In order to ascertain which provisions of UNCLOS apply to the Northwest Passage, we must first define it under the treaty. Although it is a given that the Passage is a body of water through which ships may sail, the governance of the body of water falls under differing regulations. We may make two possible suppositions: considering the amount of islands the Passage envelops, it may be considered an archipelago or, taking it as one body of water framed by landmasses, it may be a strait instead.

If we consider that the Northwest Passage traverses an archipelago, those articles most applicable to the case at hand are Articles 49, 50, 52, 53, and 54 of UNCLOS. These govern passage through archipelagic regions. Alongside its guarantee of innocent passage through territorial waters,[19] UNCLOS also provides for sea lanes passing through internal archipelagic waters.[20] As part of the governance, the sea lanes must be suitable for continuous passage.[21] In the event that the governing nation wishes to change the terms of passage, such actions must be referred to the international community, who will be the final arbiter as to whether adopt or refuse such amendments.[22] Furthermore, in the event that the passage is closed, the archipelagic nation must provide the international community with a suitable substitute, and may only close the sea lane under justifiable conditions.[23] Unfortunately, these articles do not apply to the Canadian Archipelago, as they only take into consideration nations composed entirely of an archipelago, examples being Indonesia and Micronesia.[24] However, they are still of importance to the question at hand since they provide codified international law in geographical locales similar to the Passage, albeit limited in scope by an arbitrary requirement.

Lastly, the UNCLOS articles that deal with straits also reiterate those same ideas discussed in the previous paragraph.[25] Nations bordering an international strait must afford the international community with a sea lane that guarantees continuous traffic.[26] Of note is the treaty’s requirement that an international strait be considered to have functioned as such historically for it to be afforded protection.[27] This would point towards the possibility that the Northwest Passage be denied such a classification. However, we must emphasize the caveat that there exists no concrete definition under international law as to what constitutes an international strait.[28]

ii. U.S.-Canada Agreement on Arctic Cooperation[29]

After an icebreaker belonging to the U.S. Coast Guard made its way through the Northwest Passage in 1985, allegedly on a research mission, Canada voiced complaints against the United States for violating its maritime borders.[30] The U.S. answered back, stating that its ship was engaged in safe passage through unclaimed waters, not recognizing the newer Canadian baselines based on the Fisheries Case. Consequently, according to the American position, the Coast Guard vessel’s voyage was perfectly legal according to the Law of the Sea. In order to assuage tensions, both countries signed a memorandum, in which the U.S. recognized that future Coast Guard vessels conducting research would require Canadian consent to obtain passage. In this document, the U.S. did not renounce its claim that the Passage is in international waters: it merely conceded that Coast Guard vessels are research vessels, requiring Canadian governmental consent for continued operations in Canadian waters, without expressly delimiting the extent of the Canadian territorial claim.

This treaty is remarkable for being the first document to formally discuss the possibility of navigating through the Passage and illustrates the real world problems arising from clashes between foreigners eager to transit through these waters versus an active, patrolling Canadian naval presence. However, the agreement itself states that it is not binding on either party for matters regarding the Law of the Sea, and its bipartite nature would naturally exclude other powers from being bound by it. At the very least, it is an admission by both parties that joint efforts between Canada and the international community will be necessary in order to be able to develop the Passage, and it also underlines the Passage’s peculiar characteristic of lying entirely within Canada’s internal waters. Lastly, it is also demonstrative of the increasing focus on environmental issues in the Arctic, especially with the fragile state of the ecosystem due to climate change, and the need to minimize human involvement for the ecosystem’s preservation.

b. Relevant Case Law

i. The Corfu Channel Case and Foreign Intromission[31]

Considering the possibility that Canada chooses to bar the international community from making use of the Passage and undertakes hostile actions to prevent such use, this case perfectly enunciates and recites the applicable principles of international law. The incident itself was the result of a post-World War II British military operation within the Corfu Channel, a strip of water between the island of Corfu and the Balkans, between the Greek and Albanian border, the region historically known as Epirus. While traversing the channel, a British naval patrol struck a number of mines off of the coast of Albania. After attempts to have the Albanian government investigate the incident, the United Kingdom decided to undertake its own investigation and sent minesweepers into Albanian waters.

Upon entering Albanian waters, the British minesweeper was shot at by coastal artillery batteries. After two further incidents, during which the UK attempted to investigate the situation, it filed suit at the International Court of Justice, seeking damages from Albania. The court held that the UK was entitled to damages, as the initial vessels were engaged in innocent passage. Furthermore, the court restated the need for uninterrupted and free innocent passage, which was being violated by the presence of armed mines. However, the court did rule against the UK regarding its intromission in Albanian affairs. Although there was possible reason to intervene in minesweeping efforts due to Albanian inaction, the court was quick to remind the UK that their doing so was an act violating the sovereignty of Albania over its domestic affairs. Furthermore, the court warns that, were such behavior allowed, it could result in the “bullying” of smaller nations by the Great Powers.

Figure 4

Figure 4 – Map of Corfu and Greek-Albanian Boundary[32]

ii. The Sea of Marmara and Internal Waters as an International Waterway

The Canadian Archipelago has the distinction of encompassing all passages of water between its islands as internal waters. A similar geographical location would be the Sea of Marmara. This body of water is enclosed by the Bosphorus and the Dardanelles, and has been one of the most important trade routes between Europe and Asia for thousands of years. The peoples controlling this region, Greeks, Romans, and Turks, have long owed much of their riches to this geographical feature and the city of Constantinople has owed its continued existence to its prominence as the main trading center of the area. However, before the 20th century, and prior to the postulations of a free, unrestricted sea, the controlling regimes were able to restrict access at will.[33] As part of the discussion at hand, the Sea of Marmara’s status as Turkish internal waters would be similar to the Archipelago’s current status, yet would also demonstrate the true effectiveness of such a moniker in the face of international interest in the shipping region. Furthermore, although it is known as a “sea,” the international language behind the Sea of Marmara and the transportation regime frames the area as the Straits, e.g. the Bosphorus and Dardanelles.

As a result of the Ottoman Empire’s downfall, the Balkans and Asia Minor were plunged into chaos, as each regional nation sought to scramble for the remains of the former “Sick Man of Europe.” With the Treaty of Sèvres, Turkey lost a good deal of territory, and the Dardanelles was demilitarized.[34] However, dissatisfaction at home led Mustafa Kemal Ataturk to rally the people and launch a counter-offensive, whereby Turkey recovered most of its losses through the Treaty of Lausanne.[35] This latter treaty reaffirmed the freedom of transit through the straits both in times of peace and war.[36] However, this left Turkey worried because of renewed Italian aggression in the Mediterranean under Mussolini, which led to renegotiations culminating in the Montreux Convention.[37]

This last treaty sought a middle ground between the right of free passage and Turkey’s national security considerations. It once again allowed Turkey to remilitarize the straits.[38] More importantly, this convention continued to guarantee civilian vessels unrestricted passage in times of peace and war.[39] However, it did place some regulatory measures to assuage Turkish fears of suspicious vessels. Each civilian vessel must notify the Turkish government of its intended passage, while also consenting to an examination to make sure no diseases are on board which could contaminate Istanbul.[40] As a means to ensure Turkish national safety, military vessels were further restricted passage based on whether they belonged to Black Sea nations, and on their tonnage, such that the straits should not become a battlefield.[41]

Figure 5

Figure 5 – Sea of Marmara and Surrounding Regions of Thrace and Northeastern Anatolia.[42]

iii. The Anglo-Norwegian Fisheries Case[43]

This last case deals with the ability to draw baselines around a country’s coastlines. Considering the structure of the Canadian Archipelago, and its Arctic climate, these islands are similar to the Scandinavian coastline in that they both contain physical features denoting a glacial history, the most notable being a jagged, uneven shore. In an effort to delineate its internal waters, Canada has acted in much the same way Norway had done in this case.

The original case was brought by the United Kingdom against Norway in the International Court of Justice. The UK alleged that Norway had drawn its baseline, the segment of coastline from which territorial waters are demarcated, in an aggressive manner contrary to international law.[44] Such an action resulted in Norway supposedly taking control of fisheries that, according to the UK, were situated in the high seas and not subject to Norway’s exclusive jurisdiction.[45] The continued presence of British ships was met with hostility in Norway, who then proceeded to seize the ships and arrest their crew members, which is what finally brought the UK to file suit before the ICJ.[46]

The UK alleged that Norway ought to have drawn its baseline faithfully following its coast.[47] Norway, however, argued that such action was inequitable and unreasonable, as Norway suffers from a jagged, irregular coastline, whereby it should be considered an exception to the rule, and be allowed to stretch its baseline, including the indentations as part of the Norwegian interior.[48] The court supported the latter claim. In its judgment, the court focused particularly on the historic usage and features of the realm in question.[49] Quite simply, a region’s economic and developmental interest might justify a divergence from the more common practice so long they are grounded upon reason and on repeated historical claims.[50]

Figure 6

Figure 6 – Norwegian Maritime Boundaries and Coastline.[51]

IV. Canadian and International Postures

a. Canadian Sovereignty and Restricted Navigation

Utilizing the Fisheries Case, later codified in Section II of UNCLOS, Canada has managed to “close off” its Archipelago claiming the region lies entirely within its internal waters.[52] Along with this, Canada has further extended its maritime boundaries to twelve nautical miles, so as to close off access into the Hudson Strait and Baffin Bay from the Atlantic.[53] Canada’s sovereignty over the Archipelago’s waters was only fully expressed in 1985, and later accepted half-heartedly by the United States.[54]

After Canada had been granted Dominion status, Ottawa began to exert greater political control of the region than London had previously done. For example, Canada approved legislation in 1906 whereby whalers had to seek permission in order to hunt in the Canadian Archipelago.[55] Annual patrols of the region were started in 1922.[56] After World War II, the Canadian Coast Guard was established and tasked with the protection of the region, along with icebreaking services.[57] In fact, after 1977, all vessels entering the Archipelago must report to the Coast Guard, in order to be granted access to the islands.[58]

b. International Push

The international push for the Northwest Passage is spearheaded by the United States in its desire for unimpeded navigation. Taking into account the geographical considerations, the unimpeded right to use a route that dramatically shortens trips from East Asia to Europe is a prize well worth fighting for. Furthermore, the Passage’s location in a region filled with oil is also attractive for other considerations. Were the Passage active for economic exploitation and trade, it would effectively turn into a metaphorical gold mine.

Employing the general principle of a free and unrestricted sea, the U.S. has argued that Canada must recognize that the Passage is open to international trade and travel, a declaration which draws upon traditional American naval policy.[59] Canada’s unilateral extension of its baselines is argued to be a seizure of territories whose historical waters were not always so extensive.[60] The US specifically challenged Canada’s baseline expansions, claiming that Canada had absolutely no historical basis upon which to base such an act.[61] Because of the nullity of Canada’s claim, the waters of the Northwest Passage would be considered international and not internal. That argument would have the effect of activating Article 35 of UNCLOS, effectively ruling the Northwest Passage an international strait, and stripping Canada of complete sovereignty over these seas, limiting its governance to that prearranged by Section III of UNCLOS.

c. Environmental and Inuit Issues

The Arctic currently finds itself in a very fragile state, as the effects of climate change reshape the land itself, causing unprovoked hardships to its native wildlife. It is feared that, with increased human activity along the Canadian Archipelago, the native wildlife would be further threatened.[62] Historically speaking, these fears are not entirely unfounded: the establishment of trade routes normally leads to the development of towns and settlements alongside them.

Possibly the biggest particular environmental preoccupation would deal with oil shipping. The Panama Canal lacks the capacity to accommodate many large oil barges; many of these are thus resigned to go around through the Strait of Magellan.[63] Oil barges would be saving themselves immeasurable time by taking the Northwest Passage instead, which would virtually guarantee an increased presence in Arctic waters. Increased oil trafficking, alongside developing interest in exploiting Arctic oil reserves, would lead to greater risk of oil spills in the area.

Furthermore, issues arise regarding the native Inuit, many of whom remain attached to a less modern way of life. The opening of the Passage, alongside the previously mentioned oil exploitation, could irrevocably mar the landscape and the sea. Considering that the Inuit still live as subsistence hunters, the slightest effect on the wildlife could lead to the unfortunate end of this treasured way of life.[64] Furthermore, additional political issues and controversies arise when one takes into account that the Canadian Archipelago is mostly located in Nunavut. This Canadian territory was specifically organized to be the homeland of the Inuit people and to provide them with a modicum of self-rule.[65] The Canadian government simply cannot take this decision without input from the natives.

d. The Academic Debate within Canada Surrounding the Northwest Passage

The Northwest Passage is a hotly debated issue within Canada itself and is dominated by two different ideological schools. On the one side, you have the “sovereignty on thinning ice” school, and on the other, the “sovereignty to one side school.”[66] The first of these believes that Canada’s sovereignty over the Arctic must be maintained at all costs. It is an issue of national pride and identity that is not up for grabs, and Canada’s position must be protected especially in the face of melting sea ice.[67] The latter of these schools takes a more pragmatic approach. They believe that the issue of sovereignty is not the most pressing question in the Arctic. Efforts should instead be directed towards the implementation of policy to ensure the safety of the Arctic environment and its development as a place to do business.[68] This would also entail Canadian requests of international aid and cooperation with international bodies, such that Canada would not exert complete power over the Arctic, but would have access to additional resources provided by the international community.

V. Findings and Recommendations

a. The Right of Passage Must Be Respected by Canada

Although Canada may claim that the waters of its Archipelago are internal waters, it may not impose a lockdown to traffic by foreign vessels. Considering the geographic structure of the Northwest Passage, particularly its archipelagic composition and its possible classification as a strait, the Canadian regime must in fact consider that it will soon become a maritime highway whose importance to international trade would supplant Canadian efforts for full sovereignty.

Reading UNCLOS and once again mentioning Article 35, it is likely that, unless Canada negotiates a separate treaty on the use of the Northwest Passage, it might lose its sovereign claim altogether. Although UNCLOS makes no mention of any future or probable international waterway, the historical requirement for the Strait classification could be interpreted in another manner. As the clause merely mentions historical use, without specifically mentioning chronology or date, a court could easily determine that a handful of ships could be an example of historic use. Additionally, such creativity may be found through another argument: a court may also decide to interpret the historical use of a strait as being prospective. This means that, although there has been no historical use up to this point, there exists a possibility through which use may be initiated, which in a matter of years, would already be of a historic nature. Indeed, the “common occurrence” of navigating the Passage could very well lead to its classification as an international strait.[69] Through a separate treaty that would guarantee commercial passage at the very least, Canada would be able to skirt around the impositions of UNCLOS, and negotiate an agreement on its own terms.

b. Canada Must Be Allowed to Maintain a Governing Regime in its Internal Waters

While the above section demonstrates that Canada has no option when it comes to permitting commercial traffic along its sea lanes, there exists some leeway as to how it should allow it. The pressing need of minimizing damage to the Arctic’s ecosystem would signal that Canada ought to establish a governance regime taking into account the needs of the Arctic. In fact, it has been argued that international instrumentalities are not as effective as a national government is in protecting the environment, because they lack the enforcement powers inherent in the latter.[70] The above mention of the status of the Sea of Marmara and of the Fisheries Case serves to illustrate the possibility that Canada would be able to effectuate such a decision under international law.

The Treaty of Montreux, although written before UNCLOS had even been conceived, provides us a means to account for the needs and preoccupations of nations and the effect of innocent passage through their territories. Considering that Turkey was allowed to regulate some aspects of the Dardanelles and Hellespont, while also permitting unrestricted civilian access through the straits, it could provide the international community with a precedent to respect Canadian interests.

Furthermore, the Fisheries Case also provides us with another justification for concessions respecting Canadian aims and sovereignty. The I.C.J.’s recognition of the flexibility of international law to guarantee a region’s specific interests as defined by the history and present status of the region would also support Canadian propositions regarding the Passage. Canada, however, must be the one to prove that their desire to maintain sovereignty is tied to a deep-seated historical and economic relationship with the region at hand.

VI. Conclusion

As the possibility of navigating the Northwest Passage becomes ever more concrete, we are faced with the opportunity to make a decision that would impact global commerce for decades to come. As the Corfu Channel Case very well illustrated, inaction by the part of Canada would merely pass the initiative to other nations, who would well seize the chance of establishing a customary use of the Passage. Such an event would do nothing but further harm international relations, destabilize Canadian politics, and possibly ensure recalcitrance and apprehensiveness in the latter’s attitude towards opening up the passage. Therefore, the international community must entreat Canada to open the Passage, while at the same time being ready to offer concessions such that they would not consider said action a grievous waiver of their sovereignty in the region. Lastly, in negotiating these deals, all parties must make themselves aware of the existing complications in the Passage, particularly environmental and indigenous issues. The opening of the Passage would lead to changing conditions, which would gravely affect the region, its wildlife, and its native inhabitants. Essentially, action must be taken sooner rather than later to prevent the possible outbreak of conflict later on.


* This article was written under the supervision and guidance of Professor Luis E. Rodríguez Rivera.

[1] In this paper, the word “archipelago” is used purely as a geographical description of the parts of Northern Canada not physically connected to the North American mainland and does not seek to invoke the UNCLOS definition of an archipelago unless otherwise stated or implied.

[2] The Corfu Channel Case (U.K. v. Albania), Merits, 1948 I.C.J. 4 (Apr. 9).

[3] The Anglo-Norwegian Fisheries Case (U.K. v. Norway), 1951 I.C.J. 117 (Jan. 18)(hereinafter, “Fisheries Case”).

[4] The Northwest Passage Dispute – Canada (Map with Exclusive Economic Zones), ArticEcon (Jan. 13, 2012), http://arcticecon.wordpress.com/2012/01/13/the-northwest-passage-dispute-canada-map-with-exclusive-economic-zones/.

[5] Henry Hudson, History.com, http://www.history.com/topics/henry-hudson (last visited Apr. 1, 2014); Jacques Cartier, History.com, http://www.history.com/topics/exploration/jacques-cartier (last visited Apr. 1, 2014).

[6] James Cook’s Expedition, 1776-78, Royal Museums Greenwich, http://www.rmg.co.uk/explore/sea-and-ships/in-depth/north-west-passage/exploration-adventure-and-tragedy/james-cooks-expedition-1776-78 (last visited Mar. 30, 2014).

[7] Jim Heddleston, The Doomed Franklin Expedition, Historic Mysteries (Jan. 12, 2010),

http://www.historicmysteries.com/the-doomed-franklin-expedition/.

[8] Robert McClure, The Discovery of a Northwest Passage (2nd ed. 1857).

[9] Roald Amundsen’s Expedition, 1903-06, Royal Museums Greenwich, http://www.rmg.co.uk/explore/sea-and-ships/in-depth/north-west-passage/exploration-adventure-and-tragedy/roald-amundsens-expedition-1903-06 (last visited Mar. 30, 2014).

[10] J. Lewis Robinson, The Northwest Passage, Historica Canada (Aug.12, 2013),

http://www.thecanadianencyclopedia.ca/en/article/northwest-passage/.

[11] Id.

[12] The Quest for a Northwest Passage, The Robinson Library,

http://www.robinsonlibrary.com/geography/geography/arctic/nwpassage.htm (last updated Oct. 28, 2013 30 2014).

[13] Michael Sternheim, Regulating the Northwest Passage, 10 Loy. Mar. L. J. 173, 175 (2012).

[14] Id.                               

[15] Mark Behrend, Logbook of the Northwest Passage, Hapag-Lloyd Cruises, (Aug. 31, 2006) http://www.hl-cruises.com/expedition/expedition-reports/31082006/; John McGarrity & Henning Gloystein, Big Freighter Traverses Northwest Passage for 1st Time, Reuters, Sept. 27, 2013, available at http://www.reuters.com/article/2013/09/27/us-shipping-coal-arctic-idUSBRE98Q0K720130927.

[16] Sternheim, supra note 13, at 175.

[17] Caitlyn Kennedy, 2012 State of the Climate: Arctic Sea Ice, Climate.gov (July 30, 2013), http://www.climate.gov/news-features/understanding-climate/2012-state-climate-arctic-sea-ice.

[18] United Nations Convention on the Law of the Sea (UNCLOS), Dec. 10, 1982, 1833 U.N.T.S. 3.

[19] Id., arts. 17-26.

[20] Id., arts. 52-53.

[21] Id., art. 53.

[22] Id., art. 53.9.

[23] Id., art. 53.7.

[24] UNCLOS, supra note 18, art. 46(a).

[25] Id., arts. 34-45.

[26] Id., art. 38.1.

[27] Id., art. 37.

[28] Ted L. McDorman, In the Wake of the Polar Sea: Canadian Jurisdiction and the Northwest Passage, 27 C. De D. 623, 635 (1986).

[29] Agreement between the Government of Canada and the Government of the United States of America on Arctic Cooperation, U.S.-Canada, Jan. 11, 1988, T.I.A.S. No. 11565.

[30] Nicholas C. Howson, Breaking the Ice: The Canadian-American Dispute over the Arctic’s Northwest Passage, 26 Colum. J. Transnat’l. L. 337, 338-41 (1988).

[31] The Corfu Channel Case (U.K. v. Albania), Merits, 1948 I.C.J. 4 (Apr. 9).

[32] Eric Gaba, Topographic Map in English of the Corfu Island Area in Greece, Wikimedia Commons (Mar. 2007), http://commons.wikimedia.org/wiki/File:Corfu_topographic_map-en.svg.

[33] For an example of such behavior, see Editorial Comment, The Closing and Reopening of the Dardanelles, 6 Am. J. Int’l L. 706, 707-08 (1912).

[34] Treaty of Peace between the British Empire and Allied Powers and Turkey (Treaty of Sèvres), Aug. 10, 1920, Gr. Brit. T.S. No. 11 (1920) (Cmd. 964).

[35] Treaty of Peace with Turkey and Other Instruments (Treaty of Lausanne), Jul. 24, 1923, 28 L.N.T.S. 11, Gr. Brit. T.S. No. 16 (1923) (Cmd. 1929).

[36] Id., Gr. Brit. T.S. No. 16 at p. 108 (1929).

[37] Convention Regarding the Regime of the Straits (Montreux Convention), Jul. 20, 1936, 173 L.N.T.S. 213 (1936).

[38] Id., Protocol.

[39] Id., arts. 2-7.

[40] Id., arts. 2-3.

[41] See Id., arts. 8-22.

[42] Marmara Region Map, ALL ABOUT TURKEY, http://www.adiyamanli.org/marmara_region.htm (last visited March 28, 2013).

[43] The Anglo-Norwegian Fisheries Case (U.K. v. Norway), 1951 I.C.J. 117 (Jan. 18).

[44] Id., Application at 8-9, ¶¶ 3-4.

[45] Id., at 11 ¶ 10(a).

[46] Id., Judgment, at 124-25.

[47] Id., at 121.

[48] Id. at 125-26.

[49] Fisheries Case, supra note 43 at 130-31.

[50] Id. at 133.

[51] Measuring Stations for the Marine Pollution Monitoring Programme in Norwegian Waters in 2010, Ministry of Climate and Environment, http://www.regjeringen.no/en/dep/kld/documents-and-publications/government-propositions-and-reports-/reports-to-the-storting-white-papers-2/2010-2011/meld-st-10-20102011/3.html?id=682057 (last visited March 28, 2014).

[52] Donat Pharand, Canada’s Sovereignty over the Northwest Passage, 10 MICH. J. INTL. L. 653, 660-61 (1989).

[53] Id. at 655.

[54] Id. at 653.

[55] Id. at 657.

[56] Id.

[57] Id.

[58] Pharand, supra note 52.

[59] See E.L. Richardson, Law of the Sea: Navigation and Other Traditional National Security Considerations, 19 San Diego L. Rev. 553-76 (1982).

[60] James Kraska, The Law of the Sea Convention and the Northwest Passage, 22 INTL. J. MARINE COASTAL L. 257, 263-65 (2007).

[61] Bureau of Oceans and Int’l Envtl. and Scientific Affairs, U.S. Dep’t of State, Limits in the Seas No. 112, United States Responses to Excessive National Maritime Claims, 29 (1992), available at http://www.state.gov/documents/organization/58381.pdf.

[62] Michael Sternheim, supra note 13, at 177.

[63] Where Oil Squeezes Through Straits and Canals, U.S. Global Investors,

http://www.usfunds.com/interactive/where-oil-squeezes-through-straits-and-canals/ (last visited April 2, 2014).

[64] Paul Brown, Global Warming Is Killing Us Too, Say Inuit, The Guardian (Dec. 11, 2003, 2:12 AM), http://www.theguardian.com/environment/2003/dec/11/weather.climatechange.

[65] See Nunavut Land Claims Agreement Act, S.C. 1993, c. 29 (Can.).

[66] Andrea Charron, The Northwest Passage: Is Canada’s Sovereignty Floating Away?, 60 Intl. J. 831, 833 (2005). See also Franklyn Griffiths, The Shipping News: Canada’s Arctic Sovereignty Not on Thinning Ice, 58 Intl. J. 257 (2003).

[67] Id. at 833-39.

[68] Id. at 839-46.

[69] Ted L. McDorman, supra note 28, at 636 (citing Donat Pharand, The Northwest Passage: Arctic Straits 88-121 (1984)).

[70] Michael Byers and Suzanne Lalonde, Who Controls the Northwest Passage?, 42 VAND. J. TRANSNATL. L. 1133, 1178 (2009)

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