From: Michael Byers, Who Owns the Arctic? (Vancouver / Toronto / Berkeley: Douglas & McIntyre, 2009) Appendix One
FINGERS CROSSED = SOVEREIGNTY LOST
“Shipping companies are going to think about this, and if they think it’s worth it, they are going to try it. The question is not if, but when.”
Alain Gariépy, Captain of the CCGS Amundsen, Interviewed in the Northwest passage by Doug Struck of the Washington Post, October 2006
To recap, as we saw in Chapter 3, Canada’s sovereignty in the Northwest Passage has not been seriously challenged since the U.S. Coastguard icebreaker Polar Sea sailed through without seeking permission in 1985. Three years later, Brian Mulroney persuaded Ronald Reagan to sign a bilateral treaty on such voyages. The United States undertook to notify Canada before sending any ice-breaker through, while Canada promised to provide its consent. This agreement-to-disagree removed U.S. icebreaker voyages from the legal dispute between the two countries.
At that point, with the ever-present ice preventing other kinds of vessels from using the Passage, Canada adopted a strategy of letting sleeping dogs lie. The hope was that, in the absence of further challenges to our sovereignty, the passage of time would gradually strengthen Canada’s claim. The strategy failed to foresee the dramatic impact of climate change, however. Since 2006, the Northwest Passage has been ice-free every summer, making it probable that Canada’s sovereignty will be challenged again, most likely by a commercial vessel.
The following scenario — developed in association with my students at UBC — demonstrates just how quickly sovereignty could be lost. Faced with this risk, it is imperative that Canada negotiate a new Northwest Passage treaty with the United States. In a rapidly changing, increasingly busy Arctic, the interests of both countries would best be protected by an acceptance of Canadian sovereignty, coupled with a renewed Canadian commitment to police and manage the waterway.
Log Entry, Maritime Forces Atlantic, Halifax, August 18
The Lucia III, a Panamanian-flagged container ship owned by Seascape, has provided the 96-hour notice required by the Marine Transportation Security Act for entry into Canadian waters.
Current location: 30 nautical miles SE of Cape Sable, Nova Scotia.
All cargo checked and cleared by port of origin: Newark, New Jersey.
Security risk: Low. No further action.
Blog Entry, Private Yacht Arctic Explorer, August 23, Lancaster Sound, Nunavut
Just had a close call! A massive container ship named the Lucia III almost ran us down. The ship is sailing west into the NW Passage with nobody on deck — and nobody answering the radio. Can’t help but wonder whether they’re supposed to be there. Will radio the Coast Guard at Iqaluit, just in case.
E-mail, Canadian Coast Guard to Transport Canada & Department of National Defence, August 23
Subject: Container ship in NW Passage
The private yacht Arctic Explorer (Home port: Victoria, B.C.) reports a large container ship sailing west through Lancaster Sound toward Barrow Strait.
Vessel name: Lucia III. Home port: Panama City.
The ship has failed to provide notice under NORDREG, Canada’s maritime registration system in the Arctic, as is recommended — but not yet required — under Canadian law.
The vessel has not responded to our efforts at radio contact.
Recommend satellite confirmation by Radarsat-2 and visual contact by any government personnel on aircraft or vessels in vicinity.
Nearest Coast Guard vessel is the icebreaker Terry Fox assisting with a resupply mission to the weather station at Eureka, three days north of Lancaster Sound.
Please advise as to Canadian Forces assets.
E-mail, Department of National Defence to Canadian Coast Guard & Transport Canada, August 23
Subject: Re: Container ship in NW Passage
The Lucia III provided the 96-hour notice required by the Marine Transportation Security Act while off Nova Scotia on August 18. In accordance with established procedures, voyages originating in U.S. ports are designated low security risks.
We will exercise our priority access and secure Radarsat-2 imagery today.
Nearest CF vessel: HMCS Charlottetown is in Frobisher Bay for a sovereignty operation. Two days south of Lancaster Sound. Like other CF ships, the Charlottetown is not ice-strengthened. We are reluctant to send her west of Lancaster Sound because of the risk from any remaining sea-ice.
Nearest CF aircraft: Cormorant search-and-rescue helicopter at Gander, Newfoundland (16 hours away); Hercules fixed-wing at Trenton, Ontario (6 hours away). Plans to base a Cormorant at Resolute Bay during the summer months were shelved for budgetary reasons.
E-mail, Transport Canada to Department of National Defence & Canadian Coast Guard, August 24
Subject: Re: Container ship in NW Passage
We have chartered a Twin Otter fixed-wing aircraft through the Polar Continental Shelf Project at Resolute Bay. An RCMP constable from the local detachment will accompany the pilots to provide official confirmation.
E-mail, Transport Canada to Foreign Affairs Canada, August 24
Subject: Panamanian container ship in NW Passage
Status: Very Urgent
The Panamanian-flagged container ship Lucia III is currently in Barrow Strait heading west toward Prince William Strait or McClure Strait. Confirmation received from Radarsat-2 satellite imagery and RCMP officer on chartered plane. No response to radio. No response to fly-by. No notice provided under NORDREG.
Weather conditions are good; all routes ice-free. The ship is likely to complete transit within next three days.
Please advise diplomatic status ASAP.
Briefing Note for Minister of Foreign Affairs, August 25
Subject: Panamanian ship in Northwest Passage
Security level: Canadian Eyes Only
The Lucia III is a 17,000-ton container ship owned by Seascape, a holding company incorporated in the Channel Islands. Actual ownership is unclear. The vessel itself is registered in Panama, a flag-of-convenience state.
The Lucia III set sail from Newark, New Jersey, on August 17 en route to Shanghai, China, with a load of mostly empty containers. The contents of the remaining containers were checked and cleared by the Port of Newark.
While still off Nova Scotia, the Lucia III provided the 96-hour notice required by the Marine Transportation Security Act before entering Canadian territorial waters. The voyage was deemed a low security risk because of the U.S. port of origin. No further action was taken.
However, the Lucia III failed to provide notice under NORDREG, Canada’s northern shipping registration system. Canada’s consent has not — repeat not — been sought for a NW Passage voyage.
According to the Financial Times, Seascape is on the brink of bankruptcy, as are many other shipping companies in the current economic crisis. The decision to use the NW Passage was likely motivated by economic considerations.
The NW Passage is currently ice-free, including the entire deep-water route from Lancaster Sound through Barrow Strait, Viscount Melville Sound and McClure Strait. This information is widely available in media reports and on the Canadian Ice Service website.
For a voyage between Newark and Shanghai, the NW Passage offers a 7,000-kilometre shortcut, saving millions of dollars in time and fuel.
Lloyds of London indicates that the ship carries standard insurance only. The special insurance needed for a NW Passage voyage would be much more expensive. The lack of special insurance may explain the failure to register under NORDREG, since Canada could be expected to require such coverage before granting permission for the vessel to proceed. But while requirements for higher insurance levels are explicitly foreseen in the Arctic Waters Pollution Prevention Act, they have not yet been implemented through regulations.
The Lucia III was built in South Korea in 1997 and may well meet the other, mostly safety equipment requirements of the Arctic Waters Pollution Prevention Act. Nevertheless, a voyage that took place without Canada’s consent would undermine our long-standing position that the NW Passage constitutes “Canadian internal waters.”
The Panamanian flag is a particular concern. Panama makes a great deal of money providing a flag of convenience to international shipping companies. In return, those companies expect not only a relaxed regulatory regime but also a staunch defence of the freedom of the seas.
Time is of the essence. The vessel will likely leave Canadian waters in just two days. We have limited assets in the region but could interdict the vessel using a long-range Canadian Forces search-and-rescue helicopter based in Newfoundland or southern B.C., or a Coast Guard icebreaker already in the Arctic.
In the circumstances, we request permission:
(1) To contact Seascape, confirm the voyage, and indicate that Canadian consent must be sought and would be granted — provided that the company can confirm compliance with the safety equipment requirements. We could, in this instance, ignore the lack of special insurance because: (a) We have not issued specific regulations; and (b) Container ships pose less of an environmental risk than oil tankers.
(2) In the event that Seascape is unavailable or non-compliant, to contact the Government of Panama and request that it: (a) order the vessel to comply; and, if necessary, (b) give us permission to interdict. Securing flag-state cooperation would prevent any damage being caused to Canada’s legal position, since only nation-states contribute to making or changing international law.
E-mail, Deputy Minister of Foreign Affairs to Clerk of the Privy Council, August 25
Subject: Foreign Ship in NW Passage
Status: Urgent / Top Secret
The Lucia III, a Panamanian-flagged container ship, has entered McClure Strait en route to a completed Northwest Passage transit within the next two days. Canada’s consent was not sought for the voyage, which could create a damaging precedent against our legal position.
Attempts to contact the registered owner of the vessel have failed. The Canadian Forces and/or Coast Guard are capable of reaching and interdicting the vessel before it leaves our waters.
The Government of Panama says it will protest any interference, on the grounds that the Northwest Passage is an international strait open to vessels from every country without constraint.
The Arctic Waters Pollution Prevention Act could be used as a basis to inspect the vessel. Since the adoption of the 1982 UN Convention on the Law of the Sea, the Act has been widely accepted as compatible with international law. But there is no reason to believe that the Lucia iii fails to meet Canada’s safety equipment standards or intends to dump waste in our waters.
Moreover, simply inspecting the vessel would not prevent a damaging precedent.
Arresting the vessel on the basis of inadequate insurance coverage just before it left Canadian waters would stretch legal and diplomatic credibility, especially since we have yet to issue regulations on Arctic-specific insurance requirements.
Our lawyers advise that Panama, in addition to protesting, could take Canada to the International Court of Justice in The Hague. Both countries have long accepted the court’s “compulsory jurisdiction,” meaning that either country can sue or be sued by any country that has also accepted compulsory jurisdiction. If the judges decided that the Northwest Passage is an international strait, we would have to accept the ruling.
In the circumstances, our best ally might be the United States. According to former U.S. ambassador Paul Cellucci, the State Department has been reassessing whether the traditional U.S. position — that the Northwest Passage is an international strait — remains in the U.S. national interest. The worry is that terrorists and other non-state actors might use an increasingly ice-free waterway to access North America and, potentially, traffic in WMD.
Panama is highly dependent on the United States and would likely accede to a request from it.
We recommend that the Deputy Minister of Foreign Affairs contact the U.S. Under-Secretary of State to request immediate diplomatic pressure on Panama.
We also recommend that every effort is made to keep the situation secret. This will reduce the impact of the precedent, should the voyage proceed without Canada’s consent.
E-mail, Clerk of the Privy Council to Deputy Minister of Foreign Affairs, August 26
Subject: NW Passage
Status: Urgent / Top Secret
Prime Minister disturbed by news reports concerning Panamanian ship in nw Passage. Why wasn’t the yacht Arctic Explorer asked to remove its blog entry? Do we have feedback from Washington?
E-mail, Deputy Minister of Foreign Affairs to Clerk of the Privy Council, August 26
Subject: Re: NW Passage
Status: Urgent / Top Secret
The State Department cannot assist. The U.S. Navy is wedded to their traditional position that the NW Passage is an international strait. Although the State Department understands that an ice-free, legally unrestricted NW Passage could have negative consequences for U.S. national security, an inter-departmental agreement is impossible on short notice. Among other things, they would need concrete commitments from Canada and a credible strategy for distinguishing the NW Passage from the other waterways they consider to be international straits.
Panama’s foreign minister has just stated publicly that he will take us to the International Court of Justice if we interdict.
Although the vessel will leave Canadian waters in approximately 18 hours, interdiction is still an option. A Canadian Forces Cormorant helicopter from Comox, B.C., could get there in time, after several refuelling stops, but would be at the full extent of its range and far from any support.
The Canadian Coast Guard icebreaker Louis S. St. Laurent is a better choice. It is approximately 12 hours away, mapping the continental shelf in the northern Beaufort Sea. With two helicopters and light weapons on board, the crew is capable of interdicting — assuming there is no or only moderate resistance.
A peaceful outcome would be facilitated by sending one or more CF-18 fighter aircraft up from Cold Lake, Alberta, to do a fly-by during the interdiction. The Canadian Forces are keen to be involved in some way.
We thus face a dilemma:
(1) Arrest the ship, provoking diplomatic protests and probable litigation in the International Court of Justice; or
(2) Do nothing and wear the negative legal precedent that would result from our very public acquiescence.
Our lawyers advise that we have (at best) a 50-50 chance of prevailing before the International Court. They also advise that inaction would, given the now-widespread reporting of the situation, cause irreparable damage to our legal position.
The Prime Minister’s Office may also wish to consider the domestic political consequences of being seen to “surrender” Canadian sovereignty. The “use it or lose it” rhetoric of the last few years makes inaction a difficult sell.
It may also be relevant that the International Court usually takes five to ten years before it issues a final judgement. Being taken to court might offer the benefit of postponing any ultimate loss of sovereignty until after the next election.
(1) Order the Louis S. St. Laurent to proceed to the western entrance of McClure Strait and prepare for an interdiction.
(2) Obtain the Prime Minister’s approval for an interdiction ASAP.
(3) In the future, avoid taking a “let sleeping dogs lie” approach with respect to issues of importance and risk. The State Department was coming around to our position and wanted to help. But we never gave them a chance. We should have engaged them proactively on possible concessions and strategies before the crisis arose.
Prime Minister’s Address to the Nation, August 27
My fellow Canadians, just one hour ago the men and women of the Canadian Forces and the Coast Guard engaged in bold and decisive action in defence of our Arctic sovereignty. A rogue cargo ship flying a flag of convenience was attempting to sail through the Northwest Passage without Canada’s consent. This reckless act posed a security risk for Canada, the United States and all civilized nations. It also put the fragile Arctic environment at risk.
The ship is now in the capable hands of the Canadian Coast Guard. It will be released as soon as it has been sailed out of Canada’s Arctic waters and 200-mile pollution prevention zone. The crew members are being held upon the Canadian icebreaker Louis S. St. Laurent. They are unharmed and will be treated respectfully in accordance with Canadian law.
I understand that some foreign governments may be concerned about our actions today. I say to them: Canada has acted reasonably and in full compliance with international law. We will never hesitate to defend our sovereign rights in the Northwest Passage, in the halls of international diplomacy and — if necessary — in court.