Foreign Affairs Committee on Oct. 17th, 2018

[The Chair, Mr. Michael Levitt (York Centre, Lib.)]

Good afternoon, everyone. I would like to call this meeting to order. It's the continuation of our Arctic sovereignty study.

We are fresh back from our recent trip to the Arctic. It's good to see a number of members who were on that trip here with us today.

I would also like to welcome our first panel of witnesses. We have two sets of witnesses today.

In our first panel, we have Michael Byers, the Canada research chair in global politics and international law in the department of political science at the University of British Columbia. We also have Suzanne Lalonde, professor in the faculty of law, Université de Montréal.

Welcome. We're going to get started with your testimony. Then we will immediately open it up to questions from the members. I'm sure there will be many.

With that, Professor Byers, I think you are starting.

[Dr. Michael Byers, Professor, Department of Political Science, University of British Columbia, As an Individual]

Thank you very much.

I am very pleased to be here today. I do speak French, of course, but my English is better, so my remarks will be in English today.

You have benefited from testimony from the legal adviser at Global Affairs Canada, Alan Kessel, who is one of the finest international lawyers I know. I'm going to try to build a little on his work and perhaps explain a couple of the key issues in slightly different terms so that everyone understands the landscape here.

The first thing I want to say is that Arctic sovereignty is sometimes understood to be different things. For a lawyer like Mr. Kessel, Arctic sovereignty concerns our relations with other nation states, so it concerns maritime boundaries, it concerns our single land dispute over Hans Island, and it concerns the status of the Northwest Passage. For an international lawyer like Mr. Kessel, that is what sovereignty means.

For people who live in the north, sovereignty includes a broader range of issues. It includes search and rescue. It includes policing of things like smuggling, the drug trade or illegal immigration. It also concerns social and economic issues, the housing crisis and the health crisis. Sovereignty is a large concept, but for lawyers, it's a fairly narrow one.

I'm going to speak to the narrower form of sovereignty, but I am willing in questions to talk about issues like search and rescue or icebreaking.

To start, let's go from the least concern to what I think may be the largest concern. Let's start with Denmark. Denmark owns the largest island in the world that is not a continent, i.e., Greenland. Greenland has a degree of self-government, but for the purposes of foreign relations, Denmark is in charge.

We have two insignificant boundary or territorial disputes with Denmark. One is over Hans Island, 1.3 square kilometres of rock. The dispute does not concern the water around the island. We have an agreed maritime boundary right up to the low water mark on each side. We've had that boundary since 1973, so it's only the rock, 1.3 square kilometres in a region that is measured in thousands and thousands of kilometres.

The other insignificant dispute with Denmark concerns a couple of tiny, really small, areas in the Lincoln Sea north of Greenland and Ellesmere Island. This dispute has, for all practical purposes, been resolved by a working group between the two countries. It simply concerned whether you could count a small island as a base point for calculating the boundary. As I understand it, the two governments could announce an agreed solution at any time that it was politically opportune to do so, so it's not significant. Denmark is not a problem. They are, of course, a NATO country, and we have a very vibrant trading relationship with them, including in the new European-Canada trade agreement.

Then there's Russia. Some of you are aware that Russia has been behaving very badly lately, including in Ukraine and in Syria, and, it would seem, in the United States and the United Kingdom. I have no illusions about Russia, but in analyzing Russia's posture in the Arctic, I have some optimism, not because Vladimir Putin is friends with Canada, but because he is a rational actor. Russia is the largest country in the world, and it has a very large uncontested Arctic territory. Russia has very large uncontested exclusive economic zones in the Arctic.

Russia has roughly one-half of the Arctic uncontested within its jurisdiction. It doesn't want any more Arctic. It doesn't need any more Arctic. It also knows that the Arctic is an extremely expensive place in which to operate. In the Arctic, for rational reasons, Russia is therefore behaving itself.

This is really important to realize. The Russians cannot afford to militarize another front. They've already got problems along the borders with NATO countries in eastern Europe. They already have a very big commitment in the Middle East. They're worried about their land border with China and issues in the Russian far east. In an optimal world for them, they might have an interest in the Arctic, but this is not an optimal world for Russia. Russia is actually in economic and demographic crisis, so it co-operates.

The Arctic Council is functioning normally. It's remarkable, but it is functioning normally. To their credit, former foreign ministers Lawrence Cannon and Stéphane Dion made a real effort in working on Arctic co-operation with Russia, realizing that this was an opportunity to keep one part of that relationship calm.

Let's talk about the United States. The United States is, of course, our most important ally, including in NATO and NORAD. The United States has massive naval interests around the world. It has a very strong interest in freedom of navigation, and we have a long-standing friendly dispute with the United States over the status of the Northwest Passage. They regard it as an international strait that passes through Canada's waters—Canadian, but subject to a right of passage—and we consider it to be internal waters.

Since 1988, when Brian Mulroney negotiated the arctic co-operation agreement with the United States, we have agreed to disagree. They always ask us for permission to conduct scientific research while transiting the Northwest Passage, and we always give it.

This brings me to China. The good news here is that last year, when China sent its research icebreaker, the Xue Long or “snow dragon” through the Northwest Passage, it decided it had no interest in challenging Canada's claim. Some exceptional diplomacy took place between Canadian and Chinese representatives, with the Chinese asking for permission to conduct scientific research and Canada agreeing.

Why is this important? Regardless of whether it's an international strait or internal waters, you need permission to conduct scientific research. The United States and China have both sidestepped the dispute. They haven't acquiesced to Canada's position. They've simply chosen not to engage with the dispute, and to sidestep it.

That brings me to my final point. The United States will continue to behave as it has. It has certain interests in Canadian co-operation in the Arctic. I'm not worried about the United States in the Northwest Passage.

China has not taken a position with regard to the legal status of the Northwest Passage yet, but it's unclear how China will move in the future. Its main interest is in safe, efficient commercial shipping. It therefore ideally needs extensive Canadian co-operation. It needs search and rescue. It needs aids to navigation. It needs ports of refuge. Rationally, therefore, it will want to work with Canada.

It also has a somewhat similar dispute regarding Hainan Island and mainland China—the Qiongzhow Strait or the Hainan Strait—where it has one legal opponent, the United States, and where the Chinese position is identical to Canada's position in the Northwest Passage.

My final message from my introductory comments is that the one thing I see as diplomatically important right now in the Arctic is to actually engage with China. We may not come up with an agreement to resolve all of our differences, but we need to make it clear that we want to work with China with regard to Arctic shipping, so that we can prevent them from coming down on the opposite side from us regarding the legal status of the Northwest Passage.

Thank you very much.

[The Chair]

Thank you very much.

Please go ahead, Professor Lalonde.

[Prof. Suzanne Lalonde, Professor, Faculty of Law, Université de Montréal, As an Individual]

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.

[The Chair]

Thank you very much to both of our witnesses for their testimony.

We'll get right into questions. We're going to begin with MP Alleslev, please.

[Leona Alleslev, Aurora—Oak Ridges—Richmond Hill, CPC]

Thank you very much for an incredibly informative presentation, both of you.

I think the first question I would like to ask is for those of us who don't know the answer. Is there one Northwest Passage or are there multiple northwest passages? Are they all within what could be defined as internal waters for Canada, or are there some that would be more difficult to justify as being internal than others?

[Prof. Suzanne Lalonde]

Professor Pharand, emeritus of the University of Ottawa, in a classic map that circulates around the world, defined seven different routes that a ship can take that are globally considered to constitute the Northwest Passage, and all of them are within our Arctic baselines within Canada's internal waters. They are all covered by Canadian sovereignty.

[Leona Alleslev]

Most recently, a Russian icebreaker helped, I believe, a Danish vessel to make that sort of first Asia-Eurasia transit route. Did they ask permission, to the best of your knowledge, or is that the beginning of when they didn't ask permission and could that be viewed as setting a precedent?

[Dr. Michael Byers]

Thank you for that question, because it enables me to clarify that, in addition to the Northwest Passage, which passes through Canada's Arctic archipelago, there is, on the other side of the Arctic Ocean, a traffic route called the northern sea route that passes along the coast of Russia. There are several choke points along that route between Russian offshore islands and the Russian mainland that are less than 24 nautical miles across, which Russia claims as Russian internal waters.

The Russian legal position is identical to the Canadian legal position, and the one disputant of their position is the United States. There are other parallels between Russia's situation in the northern sea route and Canada's situation in the Northwest Passage. In fact, the only country ever to support Canada's position publicly was the Soviet Union in 1985.

What's happening is that the northern sea route is opening up sooner than the Northwest Passage for climatic reasons I don't fully understand, and Russia is seeking to attract foreign shipping. They're trying to get commercial ships to come, including Chinese vessels. They're charging them icebreaking fees, so they're making some revenue, and of course they are requiring consent. No one has ever challenged Russia on this. No one has ever physically tried to go through because the Russian Navy is a rather formidable force.

[Leona Alleslev]

That's primarily what I'm asking. Did the U.S. challenge Russia's making those internal waters, and could that be a precedent for us in our case of protecting the Northwest Passage as internal waters?

[Dr. Michael Byers]

I believe it was in 1965 the U.S. sent a Coast Guard to sail through the Vil'kitskii Straits, which is one of these choke points, and the Soviet embassy in Washington warned that the Soviet Union would “go all the way” to stop the voyage. The United States very wisely ordered the icebreaker to turn around and come home.

No, there's been no challenge, but Russia on the legal issue is, again, a supporter of Canada. We have never made anything of that. I know that Mr. Kessel, who testified in front of you, did have some discussions with his counterpart in Moscow prior to 2014, but I don't think anything is happening there right now.

[Leona Alleslev]

I understand that we have anecdotal evidence that there have been Russian submarines in our waters in the Arctic. Does the fact that we haven't challenged them, per se, undermine our case? What are the consequences of not being able to maintain our sovereignty over our Northwest Passage?

[Dr. Michael Byers]

Very simply, yes, Soviet submarines use Canada's Arctic waters. The Soviet charts are much better than the Canadian charts, which is pretty conclusive proof—

[Leona Alleslev]

That's frightening.

[Dr. Michael Byers]

—of this. However, a submarine is designed to be covert, and something that is covert, that is hidden, cannot change a legal situation.

[Leona Alleslev]

Okay.

[Dr. Michael Byers]

The only problem would be if we knew and did nothing. It's better to not know from a legal perspective.

[Leona Alleslev]

Okay, and on the consequences of not maintaining our sovereignty, is our case weakened by the fact that we haven't established our responsibilities in the Arctic? Would our negligence in maintaining our responsibilities in the Arctic undermine our ability to claim it as internal waters?

[The Chair]

I'm going to ask you to keep the answer to about 18 seconds, if you can, plus or minus.

[Prof. Suzanne Lalonde]

I was harsh there, but I think Canada has been present and has taken measures to ensure safety of navigation. It was perhaps less active than Russia in promoting and being present in the Arctic, but there was also very low shipping. There were also very few ships, so as we see more interest, more activity in the Canadian Arctic, Canada is stepping up. I think we're keeping pace, luckily. I'm glad we are.

[The Chair]

Thank you very much.

We'll now move to MP Saini, please.

[Raj Saini, Liberal, Kitchener Centre, ON]

Good afternoon, and thank you very much to both of you for being here today.

Ms. Lalonde, I'm going to start by quoting something you wrote:

The U.S. government has clearly expressed its fear on several occasions spanning more than four decades that recognizing Canada's sovereignty over the Northwest Passage “would be taken as precedent in other parts of the world.”

How broad would this precedent be? Would it be more or less impactful because the United States has not signed UNCLOS?

[Prof. Suzanne Lalonde]

Actually, I was getting tired of having this argument thrown in our face. Whenever we'd go to international conferences to defend the Canadian position, there was bound to be an American colleague who would raise this issue. James Kraska of the Naval War College comes to mind. I wanted to know the answer, and with a colleague at the Université Laval, we got to work.

Often, the argument was if we say yes to the Canadian position on the Northwest Passage, what will happen in Gibraltar and Malacca, and what will happen to our global mobility capacity and ability?

The article was a success and not a success in the sense that those straits are well established. They are international straits subject to transit passage. However, I must confess that we discovered that if America was seen to yield or to acquiesce or to agree with the Canadian position, Russia might take that as a signal and might be encouraged in terms of its own claim, given its similarity. As Professor Byers was mentioning, we found that China also has a strait that is under debate. Is it a strait? Is it an internal passage? Even Japan has a sensitive strait where it is questionable whether it is a passage or within Japanese waters.

I suppose I was disappointed that I had to agree that if the United States moved on the Northwest Passage issue, perhaps Russia, China and Japan might be encouraged in terms of their own claims. It's much less of an issue than is made of it, though. Unfortunately, I don't think the lack of participation of the United States in the law of the sea convention changes that dynamic.

[Dr. Michael Byers]

Just to add one thing, it is possible to exempt a particular situation from international law more generally by entering into a bilateral treaty with a disputing state. If Canada and the United States were to reach a bilateral agreement on the Northwest Passage, that would take it out of general international law and therefore eliminate the precedent.

That's something Canadian governments should be thinking about, given the common interest in the defence of North America, particularly at a time when the Arctic waters are opening. This doesn't need to be a precedent for anyone. There just has to be diplomacy followed not even by a treaty that requires the advice of the U.S. Senate, but an executive agreement between the two governments.

[Raj Saini, Liberal, Kitchener Centre, ON]

Isn't the problem more compounded by the fact that there are, from my readings, between 134 and 265 international straits around the world, and there's no clear definition of what a strait is? Isn't it still being debated?