By Richard Norman

On Monday, Canadian Prime Minister Stephen Harper announced that the Canadian military would be building between six and eight Arctic patrol vessels. "Canada has a choice when it comes to defending our sovereignty over the Arctic," Harper said. "Either we use it or we lose it. And make no mistake ? this government intends to use it." Harper’s commitment has been on the books since the last election (in slightly different form), but comes a week after Russian President Vladimir Putin laid out Russia’s claim to vast amounts of Arctic territory, including the North Pole. The American government responded to both announcements with dismay–they consider Arctic waterways and the region around the North Pole to be under the purview of no single country. Expectations that the Northwest Passage may soon be free of ice and possible to transit have led to renewed interest in the waterway. Also at stake are huge oil and mineral reserves that may become available as the ice continues to shrink. The vast majority of Canadians have never been above the Arctic circle and have never given it much thought (the combined size of Canada’s Arctic Archipelago is 1.4 million square kilometers–populated by twelve thousand hardy souls). But now national pride and a potential economic boon are at stake. If there are any Canadians out there looking to make a quick buck I suggest making and selling some "My Canada Includes the Arctic" T-shirts. The United States doesn’t recognize Canadian sovereignty over Arctic waterways, and the issue has been a source of tension.

The most direct challenge to Canada’s sovereignty in Arctic waters came in 1985, when the U.S. sent its icebreaker Polar Sea through the Northwest Passage without informing Canada or asking permission. The political skirmish that followed led to the 1988 Arctic Co-operation Agreement between the two countries. Boiled down to its essence, the agreement said the U.S. would not send any more icebreakers through the passage without Canada’s consent, and Canada would always give that consent. [CBC]

Sounds like a typical American-Canadian treaty! So by what right does Canada assert full sovereignty over Arctic waters (between and north of its Arctic islands)? The issue is explained very thoroughly in this article:

Under the UN’s Convention on the Law of the Sea, which Canada ratified in 2003, coastal countries have the right to control access to the belt of shoreline along their coasts. Barring some exceptions, that belt is 12 nautical miles (22.2 kilometres) wide. But the waterways dividing some of the islands in Canada’s north are often more than 96.6 kilometres wide. That would seem to leave plenty of room down the middle for foreign ships. Even if the world were to agree that Canada’s Arctic waters are internal, a country may still lose the right to exercise absolute sovereignty over those waters if they include a "strait used for international navigation." Donald McRae, a law professor at the University of Ottawa, says Canada must therefore prove two things to win a sovereignty claim over its Arctic waters. "It must be demonstrated that the waters are the internal waters of Canada and that the waters of the Northwest Passage do not constitute an international strait," he wrote in a 1995 paper published by the Canadian Arctic Resources Committee. Canada is on record as saying it can satisfy both of those requirements. Over the years, Canada has cited several reasons or precedents spelling out why its Arctic waters should be considered entirely "internal." An International Court of Justice ruling in 1951 established that the 12-mile limit could be extended in some instances. Countries could draw a straight baseline across areas of coastal areas dotted with many islands and basically declare that all the water between that line and the mainland is internal, even if it lies outside the 12-mile limit. The ruling was about a case involving Norway. But some observers say Canada’s geographic case is similar. For another thing, Canada points out that the waters separating most of the islands in Canada’s Arctic are frozen over most of the year. Inuit hunt and spend large amounts of time working and even living on the ice – in effect turning it into an extension of the land. As for whether the waters of the Northwest Passage can be considered an international strait under maritime law, one study reported that there were just 11 foreign transits between 1904 and 1984. Because it has not been an international navigation or shipping route, many observers say it fails the required "use" test. But other analysts say Canada’s sovereignty case is weak and it may lose if tested in international courts. Even worse, the critics say,is that Canada hasn’t been doing enough to declare and enforce its jurisdiction.

(The Canadian government should be wary of overstating its claim. I note that Canada Post has recently claimed sovereignty over Santa Claus’ workshop, issuing him a Canadian postal code HOH OHO.) At the moment, the issue is largely one of posturing. But there are other practical concerns to take into account. Harper’s plan to send more Canadian military vessels to the area is not just an I Am Canadian* moment. As the region opens up, the potential for smuggling, piracy, and stranded tourist vessels becomes a real possibility. These new boats will help increase Canada’s official presence in the Arctic. But more than that, they will provide security to the people who live there and ensure the rule of law (depending on how it eventually is interpreted). *For those wishing to understand Canadian nationalism, such as it is, I recommend this beer commercial (directed by an American). -Richard