The third and final chapter of Laura Borzi's analysis of Arctic sovereignty tells us about the concept of traditional sovereignty, analyzing the territorial issues disputed between the Arctic states.

 

Read also the first part of the article on perceived sovereignty and new models of sovereignty and the second part dedicated to relations with the indigenous peoples of the Arctic.

Laura Borzi*
In collaboration with Osservatorio Artico

 

In this article>>>

• What does sovereignty mean in the traditional sense?
• The “political” dispute over Hans's Island between Canada and Denmark
• Beauford Sea: the disputed sea border between Canada and the United States
• Arctic continental shelf delimitation (Canada - United States - Russia)
• The debate over the legal status of the Northwest Passage between Canada and the United States

 

What does sovereignty mean in the traditional sense?

 

In a strictly legal sense, when we speak of sovereignty in the Arctic, we refer to Canadian jurisdiction over the waters of the North. Experts have repeatedly stressed that, with the sole exception of Hans Island, there are no disputes concerning the Arctic territory, including the 36,000 islands of the archipelago.

 

The border issues relating to some territories that we will see in this article assume more of a great political significance in the Arctic in the sign of international cooperation between neighboring states.

 

The “political” dispute over Hans's Island between Canada and Denmark

 

Hans's island is a 1.3 km2 portion of uninhabited land between the island of Ellesmere and northwestern Greenland on the maritime border between the Lincon Sea and the Labrador Sea.

 

Hans Island seen from above - Photo by Toubletap, CC BY-SA 3.0

 

 

This is the only circumstance of terrestrial claim, the waters that surround it are not in dispute.

 

The case is an example of how a minor dispute can become highly symbolic in the Arctic, if a hyperbolic political discourse appropriates it.

 

The controversy, which at some point seemed to have become the prologue to the loss of a sovereignty to the North founded on fragile foundations, had moments of crisis and media fever in 2003-2005 with the dispatch of military assets, Danish ships and a group of Canadian Rangers.

 

These events have overshadowed the important aspect of the good relationship between the two States involved, Canada and Denmark, which actively collaborate in the collection of data for the delimitation of the continental shelf north of the island of Ellesmere and Greenland, as well as in the Labrador Sea.

 

A trial of agreement was reached in 2012 on the maritime delimitation issue in the Lincon Sea[1] and in 2018 the formation of a joint task force was announced to resolve the dispute in light of international law.

 

The consequences of the loss of the uninhabited island are essentially of a political nature: for Copenhagen the relationship with Greenland, which shows interest in independence, is at stake, while for Ottawa it would mean a weakening of the negotiating position regarding the dispute over the Beauford Sea with the United States.

 

 

Beauford Sea: the disputed sea border between Canada and the United States

 

The Beauford Sea is a region with untapped potential in terms of hydrocarbons that sees the persistence of a dispute between Ottawa and Washington over a modest area of 22,600 km². The land border between Alaska and Yukon is fixed at the 141st meridian west while the sea border is contested.

 

Canada claims the extension of the land border by relying on the interpretation of the 1825 Convention between Great Britain and Russia, which sold Alaska to the United States in 1867. Washington, on the other hand, bases the claim on the principle of equidistance. Since the Yukon coast is concave and the Alaskan coast is convex, if this method were applied, the United States would have greater benefits.

 

 

Beaufort Sea and the disputed waters. The wedge-shaped area on this map is the approximate area of disputed waters between the Yukon and Alaska. – Source: Public Domain -Via Wikimedia

 

 

In fact, the potential for resources will be difficult to exploit in the medium to long term: there are significant technological challenges, a lack of infrastructure, and restricted regulations, in addition to the implications of the Paris agreement to which the US has recently referred.

 

This mitigates the costs of a political agreement which, if materialized, would only support the constant collaboration that the two allies carry out on the mapping of the continental shelf.

 

 

Arctic continental shelf delimitation (Canada - United States - Russia)

 

The process of defining the limits of the delimitation of the continental shelf in the Arctic is very indicative of how the rhetoric of crisis and political tension does not extend to territorial disputes.

 

A peaceful approach, based on international and cooperative law, is the goal of the Arctic states.

 

Under the  UNCLOS Convention on the Law of the Sea (1984), to which Canada acceded in 2003, the coastal state has the right to explore and exploit the natural resources of its continental shelf, seabed and subsoil.

These rights exist ipso facto and ab initio (Article 77) regardless of whether the State decides to act in this regard, or they are not dependent on an actual occupation or an express proclamation. However, no state can exploit these resources without the authorization of the coastal state.

 

Arctic map, showing recognized borders, equidistant limits and Russian claims.
© Sémhur / CC-BY-SA-3.0 Via  Wikimedia Commons

 

 

On 23 May 2019, Canada submitted documentation on defining the outer limits of its Arctic Ocean Continental Shelf to the Commission established by the Treaty itself, a 2,100-page document covering 1.2 million km² of seabed and subsoil in the Arctic ocean, including the North Pole. The data was submitted to the competent body, in collaboration with Denmark and the United States.

 

In fact, even with Russia there have been regular consultations and exchanges of letters, in the knowledge that the documents will have to go before the Commission itself.

 

The exchange of information highlighted the overlaps with regard to claims on the Lomonosov ridge between Canada, Denmark and Russia.

 

There is a very pragmatic attitude on the part of the Arctic states since the recommendations of the Commission will offer an additional level of critical information which the negotiation process will benefit from, which will remain with the contending states in a subsequent phase. This procedure, in fact, does not prejudice the question of the delimitation of the continental shelf between states with opposite or adjacent coasts. Therefore, the recommendations will have no impact on the determination of the Beauford Sea boundaries nor will they be able to resolve the issues related to claims on the Lomonosov Ridge.

 

It is important that the dialogue remains open with all Arctic actors who have shown adhesion and respect for the UNCLOS process.

 

At the end of the process, there will be international recognition of the area in which Canada will exercise its sovereign rights in the seabed and subsoil in order to establish the border on the Canadian map in compliance with the rights of all Arctic states.

 

The debate over the legal status of the Northwest Passage between Canada and the United States

 

Canada's biggest disagreement with the US is that of the legal status of the Northwest Passage[2]. It is a significant dossier to understand not only the Canadian emphasis on sovereignty, but the very particular relationship between the parties.

 

According to Ottawa, all the waters of the Arctic Archipelago, including the waterways that make up the Northwest Passage (NWP), constitute inland waters over which Canada exercises total control, including the power to determine the access of foreign ships.

 

For the United States, on the other hand, Canadian waterways have always been considered as an international strait with the right of passage for civilian and military ships, therefore not subject to restrictions by any part.

 

Washington's position on freedom of navigation is a cornerstone of American foreign policy that allows for the mobility of naval assets on a global scale.

Any opening in this direction towards Ottawa would risk hindering navigation on strategic routes such as the Strait of Hormuz in the Persian Gulf, the Strait of Malacca in Southeast Asia or the Strait of Gibraltar in the Mediterranean Sea.

In the past decades, the transit of two American ships (Manhattan in 1969 and Polar Sea in 1985) in the Passage was considered by Canadians as serious events in terms of violation of sovereignty, although in both cases the Canadian government had cooperated with the Americans in the preparation of the trip.

 

After the crossing of the Manhattan oil tanker, the federal government has mobilized, since the 1970s, with functional approaches to sovereignty, qualifying the Arctic as an ecologically sensitive region and enacting legislation that extended the competence northwards to prevent the pollution from foreign ships.

 

 

The Northwest Passage routes - Public Domain, Via Wikimedia

 

 

In 1985 the Arctic Waters Pollution Prevention Act allowed Ottawa to control and regulate future oil traffic in the area, creating a pollution prevention zone 100 nautical miles off the archipelago and around the islands.

Territorial Sea and Fishing Zones Act defined the 12-mile rule by subjecting the waters leading to the passage under Canadian control.

With regard to the legal regulation, the Convention on the Law of the Sea adopted, with American support, the Canadian proposal for Article 234 which gave coastal states the right to adopt and enforce non-discriminatory laws and regulations to prevent, reduce and manage marine pollution caused by ships in areas covered by ice and included within the limits of the exclusive economic zone.

 

With the crossing of the Polar Sea icebreaker of the American Coast Guard which, for operational reasons, used the route without asking Ottawa's permission, a new crisis has opened.

 

The Martin B. Mulroney government (1984-1993) responded by declaring sovereignty over the archipelago’s waters considered historic waters and exposing a plan to increase military assets in the Arctic.

The settlement of the dispute took place with the signing of the cooperation agreement in the Arctic signed in 1988 and facilitated by the relationship between Mulroney and President Reagan, a pragmatic solution that did not compromise the legal position of either country, urging the United States to request Canadian consent for the passage of American icebreakers, a permit that would be granted.

 

The acknowledgment of the divergence demonstrated the good political relations between the two sides without compromising their respective legal views.

 

In the current international scene, however, the question of the status of the Northwest Passage is no longer just an academic debate between Canadian and American lawyers.

 

The increase in transit on the polar routes risks revealing conflicts with states with which the political relationship is much more complex and which, it should be remembered, like the Americans, who consider the Canadian position to be inconsistent with international law.

 

However, the Trump presidency reminded Canadians how illegitimate their position remains from Washington's point of view.

 

In May 2019 in Rovaniemi, in the Arctic Council, the statements by Secretary of State Mike Pompeo on the illegality of the Canadian position (as well as that of Russia on the Northeast Route) caused a certain surprise and frustration among the Arctic Council delegates and were promptly rejected by Foreign Minister Chrysta Freeland.

Pompeo’s intervention defined a global framework in which it is highlighted that now also in the Arctic, as well as globally, the policies of Russia and China constitute a threat to American interests. Against this background, the concept of free navigation in the seas was reaffirmed, the Secretary of the Navy, Richard Spencer argued that Washington could have carried out Freedom of Navigations Operation (FONOPs) in the North.

 

In this regard, as often happens in the Arctic, even the US has been forced to deal with the gap between intentions and the available means. Therefore, some declarations remained formal positions, lacking the necessary assets to realize the purposes.

 

The possibility of carrying on FONOPs has not materialized. The US icebreakers are not available as the Polar Star is engaged in refueling in Antarctica for about seven months a year, while the Healy is engaged in Alaska for S&R operations and in support of scientific missions in the Arctic.

 

The Biden presidency is a turning point with respect to unilateralism and the less predictability of the last occupant of the White House. However, not even the previous administration could have benefited from the weakening of relations with Ottawa. Especially for the help that the Canadian Coast Guard provides in refueling American ships at the Thule base in Greenland.

 

There is an urgent need for pure realpolitik with the aim of mitigating and countering Chinese and Russian influence in the region, which requires a united front of the West in the North American Arctic as well as in Europe.

 

In conclusion, from the perspective of international law that continues to dominate relations between states in the Arctic, there are no threats to sovereignty for Canada, on the contrary, it is precisely the UNCLOS framework that guarantees the collaboration and interests of all the Arctic Five.

 

Regarding the relationship with Washington, it is not endangered by legal differences of light (Beauford Sea) or great impact (Northwest Passage) and indeed remains the cornerstone of Arctic and continental defense. Beyond the changes in government and related political positions on both sides of the long and defenseless border, it does not seem conceivable that Ottawa could jeopardize the partnership with its major ally.

 

As often happens in the context of international relations in general and also for those in the Arctic region, it is not the political differences between friendly and allied countries that can endanger the security of states.

 

*Analyst at the Centro Studi Italia-Canada,
Arctic and canadian foreign policy expert

 

Cover Image Source: Canadian Armed Forces Image Gallery

 

Did you miss the previous chapters of the article? >>> 

• Sovereignty in the Arctic (Part I): why It is important and the must-tackle challenges for Canada
• Sovereignty in the Arctic (Part II): the indigenous peoples of Canada

---

On the same topic>>>