The Legal Status of the Northwest Passage: Canada’s Jurisdiction or International Law in Light of Recent Developments in Arctic Shipping Regulation?

Abstract

The recent adoption of the Polar Code relates to the Northwest Passage (the Passage) that connects the Atlantic and Pacific Oceans through the Canadian Arctic Archipelago. The Passage has not, however, been completely navigable due to the existence of Arctic sea ice. Arctic waters are however, increasingly becoming more accessible since sea ice, largely due to the effect of climate change, is thawing. This holds the potential of greater maritime activities in the Arctic waters including the Passage. It is consequently essential to ensure maritime safety and environmental protection. The question is, who has jurisdictional authority to govern such activities within the Passage? Canada claims that it is part of its historic internal waters and therefore, Canadian legislation is applicable. It also dismisses the notion that it is an international strait and/or may be used for innocent passage. There are two criteria for the qualification of a strait as international: Geographical situation connecting two parts of the high seas; and it is used for the purposes of international navigation. Moreover, littoral states do not have a right to prohibit innocent passage in time of peace. This is in conjunction with the 1982 United Nations Convention on the Law of the Sea and customary international law. Canada has the right to exercise jurisdiction over issues relating to marine pollution in the Passage waters. It simultaneously has the obligation to apply international rules such as the Polar Code.