The Trouble with Navigating the “Law of the Sea” in the Arctic

Jacob Styburski, Associate Editor, Michigan Journal of International Law

            The struggle to combat climate change has left our society well-attuned to the troubles of caribou, tundra, and polar bears—only a few of the resources we stand to lose as a result of global warming.[i] What have received relatively little attention, however, are the natural resources we stand to gain from climate change, as well as the international legal uncertainties that surround them. In the Arctic, the most contentious of these emerging resources is navigable water. Long considered unviable as commercial routes, the Northwest Passage and North See Route are likely to become increasingly profitable trade routes as climate change continues to erode the ice coverage that renders them impassible for the vast majority of the year.[ii] Along the North Sea Route, it is predicted that the number of navigable days[iii] will increase from 20-30 days in 2004 to 90-100 days in 2080.[iv] Moreover, current icebreaker technology, which can make passable waters with a sea to ice concentration of 75%, may actually open the route for up to 150 days per year by 2080.[v] The navigable days along the Canadian Artic Archipelago (“CAA”) are also expected to increase significantly over the next several decades as a result of climate change.[vi]  Current global warming trends pose two important international legal questions that will have to be addressed if the world is to make full use of these sea routes: (1) whether the portion of the Northwest Passage that winds through the CAA constitutes an international strait or Canadian internal waters and (2) the extent to which Article 234 of the United Nations Convention on the Law of the Sea (“UNCLOS”), which gives coastal states extended control over ice-covered areas,[vii] continue to apply to a decreasingly ice-covered Arctic.

With regard to the CAA, the dispute over the character of Archipelago’s waters is one that exists between Canada and the rest of the international community. Whereas Canada has proclaimed this portion of the route to fall within its own territorial waters,[viii] the United States and the rest of the Arctic nations (Canada, Denmark (Greenland), Finland, Iceland, Norway, Russia, and Sweden), have argued that these routes constitute international straits,[ix] which, under Article 37 of UNCLOS, entitles all nations to an “unfettered and non-suspendable right of transit passage.”[x]

Apart from political posturing, the primary long-term difficulties involved in assessing Canada’s legal claim are factual. According to the International Court of Justice (“ICJ”), whether a given waterway constitutes an international strait subject to the “innocent passage” regime depends in large part on the amount of international traffic passing through it.[xi] This standard makes determining whether the waters of the CAA constitute an international strait under the CLS a challenging task. While these waters may not now meet the ICJ’s traffic requirement, once decreases in ice concentration make the Northwest Passage a more profitable trade route, they very well might. However, this in turn raises the additional question of whether a waterway, having already been classified as internal waters, may be subsequently converted into an international strait under the CLS—a question the ICJ has never had to answer.

Of equal uncertainty is the bearing that Art. 234 of the UNCLOS—which grants coastal states extended control over ice-covered areas[xii]—will have on navigation rights to the Northwest Passage and North Sea Route. Whereas some view this portion of the UNCLOS as “a witch’s brew, a caldron of legal uncertainty which could be stirred in favour [sic] of either [a] coastal or shipping state,”[xiii] others insist the article is sufficiently flexible to deal with climate change. [xiv] Erik Franckx, for instance, argues that, because the article “only mentions ‘ice-covered areas,’ which has been defined in the article itself,…as ‘ice covering such areas for most of the year,’” the article is actually “well adapted to the different steps in the climatic process leading up to” the complete disappearance of ice in the Artic.[xv]

What this comment fails to consider, however, is the fact that Arctic ice coverage is subject not just to long-term trends but also to short-term variability.[xvi] What this means is that, were we to reach a tipping point when portions of the Northwest Passage and/or the North Sea Route became navigable for most of the year, there may very well be a period of one or more decades in which the status of these waters (under the UNCLOS) changes from year to year.[xvii] Given that commercial exploitation of these routes will likely have increased dramatically by the time this issue arises, such uncertainty will be decidedly unwelcome, and will render Art. 234 of the LCS largely impracticable for significant periods of time.

Considering these two areas of legal uncertainty surrounding the LCS’ application in the Arctic, the most likely and practical solution would be to create of a new multilateral treaty or to amend UNCLOS to address these two navigation rights issues in greater detail and specificity. A similar regime has already been successfully implemented in the Antarctic to settle international land and water disputes.[xviii] A more explicit division of territorial rights (based on definite boundaries) like this would greatly decrease the likelihood of future disputes over Arctic navigation rights.[xix] Moreover, because the sea routes at issue are decidedly common resources, whose increased commercialization stands to benefit all participants in international trade, the Arctic nations should make greater efforts to resolve their differing claims on the realm of Arctic navigation.

[i] Climate Impacts in Alaska, United States Environmental Protection Agency, (last updated Sept. 9, 2013).

[ii] Erik Franckx, Should the Law Governing Maritime Areas in the Arctic Adapt to Changing Climatic Circumstances?, 41 Cal. W. Int’l L.J. 397, 406-09 (2011).

[iii] Navigable days are days with a less than 50% sea to ice concentration.

[iv] Franckx, supra note 2, at 407.

[v] Id.

[vi] Id. at 407-08.

[vii] United Nations Convention on the Law of the Sea, opened for signature Dec.10, 1982, 1833 U.N.T.S. 397 (entered into force Nov.16, 1994) [hereinafter UNCLOS].

[viii] Donald R. Rothwell, The Canadian-U.S. Northwest Passage Dispute: A Reassessment, 26 Cornell Int’l L.J. 331, 331-32 (1993).

[ix] Id. at 409-10.

[x] Clive Schofield, Tavis Potts & Ian Townsend-Gault, Boundaries, Biodiversity, Resources, and Increasing Maritime Activities: Emerging Oceans Governance Challenges for Canada in the Arctic Ocean, 34 Vt. L. Rev. 35, 42 (2009) (citing UNCLOS).

[xi] Rothwell, supra note 8, at 348-49 (citing Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4).

[xii] UNCLOS, supra note 7.

[xiii] Cynthia Lamson & David VanderZwaag, Artic Waters: Needs and Options for Canadian-American Cooperation, 18 OCEAN DEV. INT’L L. 49, 81 (1987).

[xiv] See Franckx, supra note 2, at 425.

[xv] Id.

[xvi] See generally D.J. Cavalieri & C.L. Parkinson, Arctic sea ice variability and trends, 1979-2010, 6 The Cryosphere 881 (2012).

[xvii] Id.

[xviii] Schofield, supra note 10, at 52-53.

[xix] Id.