Protecting The Northwest Passage: Assessing The Threat Of Year-Round Shipping To The Marine Ecosystem And The Adequacy Of The Current Environmental Regulatory Regimes

The Canadian Arctic Archipelago (the Archipelago) extends for 3000 kilometers along the northern coast of mainland Canada. Made up of seventy-three large islands, each over 125 kilometers long, and more than 18,000 smaller islands, the Archipelago forms a twisting labyrinth of straits and narrow channels connecting the Arctic and Atlantic Oceans (Northwest Passage). Northern Canada’s archipelagic waters are some of the most biologically productive and ecologically sensitive in the Arctic, and provide food and cash income for twenty-seven Inuit communities. Until recently, the Passage’s geographic isolation and harsh climate—major obstacles to development and commercial shipping—have made legal protection of the Archipelago’s marine ecosystem a non-issue. However, modern developments in vessel technology and seasonal temperature changes attributed to global warming could make year-round transit of the Northwest Passage possible by the end of the century. As the primary protection for the Passage’s marine ecosystem has historically been the absence of commercial activity, the possibility of year-round commercial use raises several questions, namely who has authority to regulate use of the Passage, whether that authority provides for environmental protection of the area, and, if so, whether the protections are adequate. The answers to these questions—contingent, in part, upon the legal status of the Passage—are anything but clear. Like environmental protection, the classification of the Passage has been a non-issue since the turn of the century. However, the prospect of a more efficient shipping route from the Atlantic to the Pacific Ocean, as well as access to previously unattainable natural resources such as hydrocarbons, fish, and diamonds, has revived the long dormant jurisdictional dispute between Canada and the United States. At issue is the amount of regulatory control Canada may exercise over foreign vessel traffic through the Passage. However, classification of the Northwest Passage will also determine which environmental protections— Canadian law, customary international law, treaty, or a combination—apply to the area and the extent to which they are enforceable. Thus, the outcome of the dispute is likely to have a significant impact on the amount of protection that is afforded the areas’ marine ecosystem. Under Canadian control, shipping traffic would be subject to Canada’s stringent environmental laws and Canada would possess significant control over the amount of shipping traffic. In addition, State regulations may be amended with ease, when compared to modifying multilateral international agreements. If Canada retains full jurisdiction over the Northwest Passage, the protection of its marine environment would be significantly stronger than if the Passage is classified as an international strait. In support of this proposition, this Comment first establishes the importance of the continued protection of the Northwest Passage’s marine environment; examining the potential impacts of year-round shipping and hydrocarbon transport on living natural resources and the importance of these resources, particularly marine mammals, to the Canadian Inuit. This is followed by an exploration of the jurisdictional dispute, including a brief overview of the relevant provisions of the United Nations Third Convention of the Law of the Sea (UNCLOS) and international law; Canada’s claims of sovereignty; and the United States’ assertion that the Passage is an international strait. This Comment then discusses the impact of the outcome of the dispute on the effectiveness and enforceability of the current unilateral, bilateral, and multilateral regulatory regimes that may be applicable to the Northwest Passage. Finally, additional measures for mitigating the environmental impacts of increased vessel traffic on the area are considered