The United States and Canada have a long‑standing dispute over the legal status
of the waters of the Northwest Passage between Davis Strait/Baffin Bay and the
Beaufort Sea. (See Map 35.) The United States considers the passage a strait used
for international navigation subject to the high seas and transit passage regimes
under existing international law. Canada considers these waters to be Canadian
and that special coastal State controls can be applied to the passage, including requirements for prior authorization of the transit of all non.Canadian vessels and for compliance by such vessels with detailed Canadian regulations.
U.S. Coast Guard Cutters transited the Northwest Passage in 1952 and 1957.
In 1969, the SS Manhattan, accompanied by the U.S. Coast Guard icebreakers
North Wind and Staten Island, transited this Passage without having received
prior Canadian authorization. Following the SS Manhattan transit, in 1970,
Canada enacted its Arctic Waters Pollution Prevention Act to address the fragile
Arctic environment and to prevent potential damage by vessel.source pollution.
In the same year the United States protested the validity of the law, because of
the lawfs unlawful interference with navigational rights and freedoms.
Transit by USCG icebreaker Polar Sea, August 1985
In 1985, several diplomatic notes were exchanged regarding an upcoming transit
of the Northwest Passage by the U.S. Coast Guard icebreaker Polar Sea.
On May 21, 1985, the American Embassy Ottawa informed the Canadian
Department of External Affairs of the planned transit of the United States
Coast Guard Cutter Polar Sea in a demarche using guidance provided by the
Department. Extracts from this guidance follow:
The United States Coast Guard is preparing its summer schedule for icebreaker
operations in Arctic waters.
Operational requirements are such that a west coast based icebreaker, the Polar
Sea, will transit the Panama Canal in order to reach the US east coast and thereafter
perform icebreaking duties in the vicinity of Thule, Greenland.
Upon completion of its duties in the Thule area, the Polar Sea will need to
return to the US west coast, both to be able to participate in testing pursuant
to the Volpe-Jamieson Agreement and, subsequently, to conduct operations in
Antarctic waters.
The limited time available requires the movement from the Thule area to the US
west coast to be made by navigating through the Northwest Passage. That voyage
will occur in August of this year.
So that the Canadian government can share in the benefits of this transit, the
US Coast Guard will issue to the Canadian Coast Guard an invitation to provide
on‑board participants.
The United States considers that this transit by the icebreaker Polar Sea will be
an exercise of navigational rights and freedoms not requiring prior notification.
The United States appreciates that Canada may not share this position.
The United States believes that it is in the mutual interests of Canada and the
United States that this unique opportunity for cooperation not be lost because of
possible disagreements over the relevant juridical regime.
The United States believes that the two countries should agree to disagree on
the legal issues and concentrate on practical matters.
The United States desires to raise this matter with the Government of Canada
now, so that we can each begin to make arrangements for Canadian participation
in the transit.
The United States considers that this discussion with the Government of
Canada in the forthcoming invitation to participate in the transit is not inconsistent
with its juridical position regarding the Northwest Passage and believes that
the Government of Canada would consider its participation in the transit not to
be inconsistent with its juridical position.
. . . .
The United States looks forward to the opportunity to have the Canadian
Coast Guard participate in a voyage that will have significant benefits for both
our countries.
On June 11, 1985, Canada replied in a diplomatic note restating its position
that the waters of the Northwest Passage were Canadian internal waters, as
follows:
. . . refer to the notification of the proposed transit of the Northwest Passage by the
United States Coast Guard icebreaker Polar Sea in August of this year, as conveyed
to the Department of External Affairs by the United States Embassy in Ottawa
on May 21, 1985.
The Government of Canada welcomes the United States offer to proceed with
this project on a cooperative basis and to provide the opportunity for Canadian
participation in the voyage.
The waters of the Arctic Archipelago, including the Northwest Passage, are
internal waters of Canada and fall within Canadian sovereignty. Canada, of course,
is committed to facilitating navigation through these waters and is prepared to
work toward this objective in the spirit of cooperation that has long characterized
the relationship between the Canadian and United States Coast Guards. This is
the spirit that also underlies the Volpe‑Jamieson Agreement, and the Government
of Canada welcomes the United States reference to this accord as a factor to be
taken into account in considering the United States proposal.
The Canadian authorities are prepared to consider any form of cooperation
with the United States authorities regarding the proposed voyage, including
on‑board participation by Canadian representatives. The United States authorities
will understand, however, the Canadian Government’s concern to ensure that the
Arctic waters adjacent to the mainland and islands of the Canadian Arctic are navigated
in a manner that takes cognizance of Canada’s responsibility for the interests
of the Inuit and other inhabitants of the Canadian Arctic and the preservation of
the peculiar ecological balance that now exists in the water, ice and land areas of
the Canadian Arctic.
Given the unique geographical and ecological features of the area, the impact
of any voyage, particularly any adverse environmental consequences, will affect
the territory of Canada and of no other country. Such voyages are by their very
nature extraordinary occurrences and must be carefully planned and coordinated
to ensure protection of the environment and other related vital interests. Even a
voyage that is free from incidents causing environmental damage can have other
negative effects on the Arctic ecology and on the interest of the inhabitants of
the area.
. . . .
The Government of Canada looks forward to receiving from the United States
authorities more information with respect of the timing and routing of the proposed
voyage, as well as the specifications of the Polar Sea. Canada would welcome
an early opportunity to consult with the United States on all matters related to
the voyage.
The United States replied as follows:
The United States notes the Canadian statement that the waters of the Arctic
archipelago, including the Northwest Passage, are internal waters of Canada and
fall within Canadian sovereignty. As the Government of Canada is aware, the
United States does not share this view. For this reason, although the United States
is pleased to invite Canadian participation in the transit, it has not sought the
permission of the Government of Canada, nor has it given Canada notification of
the fact of the transit.
The United States shares the desire of the Government of Canada that the
transit be facilitated in the spirit of cooperation that has long characterized the
relationship between our two Coast Guards. The United States is therefore pleased
at the positive response of the Government of Canada to the Embassy’s advice of
May 21, 1985, that an invitation would be issued for Canadian participation in
the transit. As part of that invitation, the United States Coast Guard has already
informed the Canadian Coast Guard regarding the timing and routing of the
transit.
The Government of Canada can be assured that the transit will be conducted in
a manner that will pose no danger to the environment or ecology in the vicinity of
the Northwest Passage. The Canadian Coast Guard is fully aware of the capabilities,
including the specifications, of the icebreaker Polar Sea.
. . . .
The United States considers that this transit, and the preparations for it, in no
way prejudices the juridical position of either side regarding the Northwest Passage,
and it understands that the Government of Canada shares that view.
On July 31, 1985, Canada responded in a note, as follows:
The Government of Canada has noted with deep regret that the United States
remains unwilling, as it has been for many years, to accept that the waters of the
Arctic archipelago, including the Northwest Passage, are internal waters of Canada
and fall within Canadian sovereignty. The Government of Canada must accordingly
reaffirm its determination to maintain the status of these waters as an integral
part of Canadian territory, which has never been and never can be assimilated to
the regime of high seas or the regime of international straits. Canadian sovereignty
in respect to Canada’s Arctic waters has been and remains well established in fact
and law, and the voyage of the Polar Sea can in no way affect that situation. In this
regard, the Government of Canada indeed shares the view of the United States,
communicated in the State Department’s Note No. 222 of June 24, 1985 that
“the transit, and the preparations for it, in no way prejudice their juridical position
of either side regarding the Northwest Passage.”
The Government of Canada has also noted the cooperative approach proposed
by the United States regarding the voyage of the Polar Sea and is prepared to
follow such an approach on the basis of a clear understanding as to the nonprejudicial
nature of the voyage. In particular, the Government of Canada has
welcomed the consultations held both at the diplomatic level and between the
United States Coast Guard and the Canadian Coast Guard, and the information
and assurances provided in relation to the Polar Sea itself and the arrangements for
its voyage, always without prejudice to the legal position of either government.
This information and these assurances have satisfied the Government of Canada
that appropriate measures have been taken by or under the authority of the Government
of the United States to ensure that the Polar Sea substantially complies
with required standards for navigation in the waters of the Arctic archipelago and
that in all other respects reasonable precautions have been taken to reduce the
danger of pollution arising from this voyage. Accordingly, the Embassy is now in
a position to notify the United States that, in the exercise of Canadian sovereignty
over the Northwest Passage, the Government of Canada is pleased to consent of
the proposed transit, and that, on the basis of the information and assurances
provided, and in conformity with subsection 12(2) of the Arctic Waters Pollution
Prevention Act, it is also pleased to issue an order exempting the Polar Sea from
the application of Canadian regulations under subsection 12(1) of the said Act.
The relevant Order‑in‑Council will be issued on Thursday, August 1, 1985.
The Government of Canada is also pleased to accept the United States invitation
to participate in the voyage of the Polar Sea. Arrangements for such participation
will be made between the Canadian Coast Guard and the United States Coast
Guard. In addition, the Government of Canada wishes to inform the United
States that Canadian agencies will be monitoring the progress of the voyage and
will be prepared to render appropriate assistance as required.
The Polar Sea departed Thule, Greenland on August 1 en route Lancaster Sound.
Canadian guests embarked at Resolute, Northwest Territories, near the eastern
end of the Northwest Passage and debarked at Tuktoyaktuk, near the western end.
The ship transited through Lancaster Sound, Barrow Strait, Viscount Melville
Sound and exited the Passage through Prince of Wales Strait and Amundson
Gulf. The transit of the Northwest Passage was completed on August 11, 1985.
No operational difficulties were encountered during the transit.
Agreement on Arctic Cooperation
On January 11, 1988, an Agreement on Arctic Cooperation was signed in
Ottawa by Secretary of State George P. Shultz and Canadian Secretary of State
for External Affairs Joe Clark. This agreement sets forth the terms for cooperation
by the United States and Canadian Governments in coordinating research
in the Arctic marine environment during icebreaker voyages and in facilitating
safe, effective icebreaker navigation off their Arctic coasts. The agreement,
which does not affect the rights of passage by other warships or by commercial
vessels, reads as follows:
- The Government of the United States of America and the Government of
Canada recognize the particular interests and responsibilities of their two countries
as neighbouring states in the Arctic. - The Government of Canada and the Government of the United States also recognize
that it is desirable to cooperate in order to advance their shared interests
in Arctic development and security. They affirm that navigation and resource
development in the Arctic must not adversely affect the unique environment
of the region and the well.being of its inhabitants. - In recognition of the close and friendly relations between their two countries,
the uniqueness of ice.covered maritime areas, the opportunity to increase their
knowledge of the marine environment of the Arctic through research conducted
during icebreaker voyages, and their shared interest in safe, effective
icebreaker navigation off their Arctic coasts:
. The Government of the United States and the Government of Canada
undertake to facilitate navigation by their icebreakers in their respective
Arctic waters and to develop cooperative procedures for this purpose;
. The Government of Canada and the Government of the United States
agree to take advantage of their icebreaker navigation to develop and share
research information, in accordance with generally accepted principles of
international law, in order to advance their understanding of the marine
environment of the area;
. The Government of the United States pledges that all navigation by U.S.
icebreakers within waters claimed by Canada to be internal will be undertaken
with the consent of the Government of Canada. - Nothing in this agreement of cooperative endeavour between Arctic neighbors
and friends nor any practice thereunder affects the respective positions of the Governments of the United States and of Canada on the Law of the Sea in this or other maritime areas or their respective positions regarding third parties.
- This Agreement shall enter into force upon signature. It may be terminated
at any time by three months’ written notice given by one Government to
the other.
During a joint press conference following the signing of this agreement,
Secretary Shultz said that he agreed with Secretary Clark’s answer to a reporter’s
question whether the agreement puts the sovereignty question “in limbo for all
time.” Secretary Clark had said:
This agreement is a particular, practical step that leaves the differing views of
Canada and the United States on the question of sovereignty intact. The United
States has its view, we have a different view. They have not accepted ours. We
have not accepted theirs. But we have come to a pragmatic agreement by which
the United States will undertake to seek Canadian permission before any voyage
of an icebreaker goes through these waters.
In response to a question under what circumstances Canada would deny permission
to an American icebreaker to go through Arctic waters, Secretary Clark
said in part:
I can’t answer a hypothetical question of that kind, . . . but the point is we have
the power, if we decide, not to agree to a request to transit. . . . We have the Arctic
Waters Pollution Prevention Act, which covers a lot of the problems that might
arise. There are agreements within NATO that cover a lot of other problems that
could arise. There was a hole in the arrangements and we think we have found a
pragmatic way to respond to that particular problem. . . .
In response to a question whether the United States would be prepared to
recognize Canada’s claim to the Arctic waters, “if U.S. military vessels and
submarines were given free access to these waters in times of crises,” Secretary
Shultz said “the answer to your question is no.”
Transit of the USCG Icebreaker Polar Star, October 1988
The first request by the United States under the 1988 Agreement was made in
October 1988 in a note which read as follows:
As provided by the terms of that Agreement, the Government of the United States
hereby requests the consent of the Government of Canada for the United States
Coast Guard Cutter gPolar Starh, a polar class icebreaker, to navigate within waters
covered by the Agreement, and to conduct marine scientific research during such
navigation. Any information developed would be shared with the Government of
Canada, as envisioned by the Agreement on Arctic Cooperation.
On September 28, while immediately north of Point Barrow, the gPolar Starh
responded to a call from the master of the Canadian Coast Guard icebreaker
gMartha L. Black,h to assist the Canadian icebreaker gPierre Radissonh and gMartha
L. Black,h in accord with the spirit of cooperation embodied in the Agreement
on Arctic Cooperation. The gPolar Star,h which was then en route from Point
Barrow, Alaska, to Seattle, Washington, rendezvoused with the nearby Canadian
icebreakers to assist them in their transit to Victoria, British Columbia. Unusually
heavy ice caused the gPierre Radissonh and the gMartha L. Blackh to abandon
their operational plan and to proceed east toward Saint Johnfs, Newfoundland,
via the Northwest Passage.
After having rendered assistance to the Canadian icebreakers through October
1, which required it to change its own operational plans, the gPolar Starh now
finds itself compelled by heavy ice conditions, adverse winds and engineering casualties
to proceed east through the waters of the Northwest Passage in order to exit
the Arctic, as did the Canadian icebreakers.
The Government of the United States would welcome the presence of a Canadian
scientist and an officer of the Canadian Coast Guard on board the gPolar
Starh and would also be pleased if a Canadian Coast Guard vessel were to choose
to accompany the gPolar Starh during its navigation and conduct of marine scientific
research in the Northwest Passage.
gPolar Starh will operate in a manner consistent with the pollution control standards
and other standards of the Arctic Waters Pollution Prevention Act and other
relevant Canadian laws and regulations. Costs incurred as a result of a discharge
from the vessel, including containment, clean.up and disposal costs incurred by
the United States or Canada and any damage that is an actual result, will be the
responsibility of the United States Government, in accordance with international
law.
In view of the necessity for prompt action by the “Polar Star” due to deteriorating
weather conditions, the Government of the United States requests a prompt
reply to its request for the consent of the Government to the “Polar Star” navigation
of waters covered by the Agreement on Arctic Cooperation.
The Canadian reply, received the same day, read in part:
The Department [of External Affairs] notes the assurance provided by the Embassy
that the “Polar Star” will operate in a manner consistent with the pollution control
standards and other provisions of the Arctic Waters Pollution Prevention Act and
other relevant Canadian laws and regulations and that costs incurred as a result
of a discharge from the vessel, including containment, clean.up and disposal costs incurred by the United States or Canada and any damage that is an actual result will be the responsibility of the United States Government in accordance with international law.
The Department has the honour to inform the Embassy that the Government
of Canada consents to the “Polar Star’s” navigation within waters covered by the
Agreement.
The Department has the further honour to inform the Embassy that the Government
of Canada also consents to the conduct of marine scientific research during
such navigation. The Department notes that the information obtained in such
research will be shared as envisioned in the Arctic Cooperation Agreement.
The Department is pleased to inform the Embassy that the Canadian Government
has scheduled the Canadian Coast Guard icebreaker “John A. MacDonald”
to accompany the “Polar Star” during its navigation in the Northwest Passage.
Canadian authorities will also be pleased to make available an officer of the Canadian
Coast Guard to be on board the “Polar Star” during this journey.
