Hello. I am very pleased to be with you here today.
As a specialist on the law of the sea, I'll confine my remarks to the issues identified in the committee's standing order, which raise legal considerations and concern the maritime domain: the Northwest Passage and, if time permits, the extended continental shelf.
In my field of expertise, the law of the sea, the Northwest Passage is by far the most sensitive issue in terms of Canada's sovereignty in the Arctic. I've prepared explanatory notes in regard to the debate surrounding the legal status and the implications for Canada. If they might be of assistance, I would be honoured to share them with members of the committee.
As Professor Byers has just explained, and as is well known, Canada claims all the waters of the Arctic archipelago as Canadian historic internal waters. Under international law, as the committee must know, a state exercises exclusive and absolute authority over its internal waters, including the right to control access. Thus, navigation through the Northwest Passage is subject to Canadian laws and regulations, and violations can be sanctioned through Canadian law enforcement agencies and mechanisms.
As was pointed out, however, Washington has long held the view—it has been depressingly consistent in this position—that the routes of the Northwest Passage constitute an international strait subject to the right of transit passage. As defined under part III of the law of the sea convention, transit passage means freedom of navigation for ships and aircraft, both civilian and military, of all nations.
It's important to emphasize this often-neglected aspect of the legal regime governing international straits. The regime guarantees a right of navigation for ships and submarines on and under the water, but also for aircraft in the international air corridor that exists above an international strait. Ships, submarines and aircraft, both civilian and military, enjoy a right of unimpeded navigation through international straits.
While this disagreement between Canada and the United States is long-standing—at least 40 years—it's been well managed, and Washington has never sought to undermine the Canadian legal position by, for instance, sending a warship unannounced through the passage.
The ice has always been an ally, isolating the Canadian far north and allowing the issue to be dealt with as a minor, occasional irritant in the special relationship between Canada and the United States. However, it is melting. This new access has transformed the Arctic and the Northwest Passage into a strategic affair at the heart of global interests.
The status of the Northwest Passage is no longer an esoteric, quirky little legal debate among Canadian and American academics. It's no longer a bilateral issue. In September 2003 the German federal foreign office released guidelines for Germany's Arctic policy, which announced that the German federal government was campaigning for freedom of navigation in the Arctic Ocean, which was defined to include the Northwest Passage. It is unclear what “campaigning for” means or entails in this context, but I was certainly very relieved to discover that the 2016 European Union policy for the Arctic had not been influenced by the German view.
In January 2018, China released a white paper that set out a perfectly ambiguous Arctic policy, at least in regard to the Northwest Passage. The most intriguing and nebulous passages can be found under part IV, subsection 3(1), entitled “China's participation in the development of Arctic shipping routes”. The key paragraph begins with a definition of what China means by Arctic shipping routes, and they are deemed to include the Northwest Passage.
The Chinese white paper goes on to state that as a result of global warming, the Arctic shipping routes—which of course include the Northwest Passage—are “likely to become important transport routes”, and then that “China respects the legislative, enforcement and adjudicatory powers of the Arctic States in the waters subject to their jurisdiction.”
That sounds great—an acknowledgement, it would seem, of Canada's sovereignty over the Northwest Passage. However, the remainder of the paragraph raises significant concerns, continuing as follows:
China maintains that the management of the Arctic shipping routes should be conducted in accordance with treaties...and that the freedom of navigation enjoyed by all countries...and their rights to use the Arctic shipping routes should be ensured. China maintains that disputes over the Arctic shipping routes should be properly settled in accordance with international law.
Of course, those last two sentences completely negate the support expressed in the earlier sentence. The reference to freedom of navigation in the Arctic shipping routes, which are defined to include the Northwest Passage, is of course in complete opposition to the official Canadian position.
The Chinese white paper also seems to give some legitimacy to the idea that a dispute exists as to the status of the Arctic shipping routes, which, again, include the Northwest Passage.
As Professor Byers mentioned, any hopes that the Chinese government might explicitly recognize the Canadian position as a means of strengthening its own claim to the Qiongzhou Strait were dashed when it chose to invoke the rules on marine scientific research to cover the transit of its research icebreaker, the Xue Long, which is a state vessel, through the passage in 2017.
Therefore, now more than ever, Canada must be present and exert effective authority over the passage. Over the last century, the Canadian Coast Guard has largely ensured that presence. The addition of the navy's Arctic and offshore patrol vessels will be a tremendous asset in showing Canada's resolve and determination in guarding its maritime boundaries and in defending its national interests. However, to be effective, the Canadian Armed Forces must be equipped with the best possible surveillance and detection technology, not only to track surface but also underwater transits.
To be clear, as territorial sovereign and in order to protect its legal position on the Northwest Passage, the Canadian government would have to react vis-à-vis any ship or submarine that had entered the archipelago unannounced and uninvited. The amount of time available for diplomatic negotiations between Canada and the flag state would be severely limited. The issuance of a formal letter of protest of flag state, while possible, would likely be seen as a fairly weak response and certainly would offer little protection from the potential harm that might be caused by such an offending vessel.
In my opinion, and in the absence of a political solution, Canada should be prepared and willing to intercept. The Canadian Armed Forces must therefore have the capability to interdict a foreign ship navigating through the passage without permission and, indeed, if it poses a threat. Given the distances and the conditions involved, this aspect of the forces' mission poses a significant challenge. I think it would therefore be appropriate for a specialized unit, at least one military aircraft—as Professor Byers has argued in other instances—to be stationed in the Arctic, at least during the shipping season.
However, claiming the Northwest Passage—and this is my last point on the Northwest Passage—as sovereign internal waters does not only bring power and prerogatives, rights and control. It also imposes responsibilities and duties upon Canada. Canada must act as a responsible sovereign over its waters. The oceans protection plan and the important sums allocated to the Arctic are strong and critical evidence of Canada's commitment to effectively governing its Arctic maritime territory, and I would say long overdue evidence.
If Canada's national interest lies in promoting safe and responsible navigation through its fragile waters, then it must make the necessary investments to provide adequate navigation needs and, most critically, modern and accurate nautical charts. It must designate places of refuge and provide at least a minimum of search and rescue capability. Given the immensity of the territory in question, I strongly support Transport Canada's initiative with the Coast Guard and local indigenous communities in the designation and establishment of Arctic marine corridors. I can only hope that after more than five years of analysis and consultations, a pilot corridor will soon be established.
My last few points are these. I am also a strong supporter of the creation of marine protected areas in the waters of the Canadian Arctic, particularly where management plans for such areas are devised in collaboration with local indigenous communities. They are a manifestation of Canada's vision and priorities for its sovereign maritime territory.
Such collaborative initiatives also reinforce the truth that the Canadian Arctic waters are a cultural homeland. Canada must continue to robustly assert control, authority and, yes, exercise its sovereignty over the Northwest Passage, but it must also work to convince other interested states, through concrete actions and necessary investments, that it can be trusted to be a responsible steward of the Northwest Passage.
I would be happy to entertain any questions on the continental shelf issue.