Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia.
In 1969, the SS Manhattan sailed through the Northwest Passage to test whether oil could be shipped from the north coast of Alaska to Texas. The voyage of the U.S.-owned supertanker tested then-prime minister Pierre Trudeau because it raised the spectre of many more such voyages and, at some point, a major oil spill.
On Aug. 16, the Crystal Serenity begins a month-long voyage through the passage. The Chinese-owned cruise ship is the first large passenger vessel to take advantage of melting sea ice in Canada’s Arctic. Its voyage will test Prime Minister Justin Trudeau, because it raises the spectre of many more such voyages and, with them, serious safety, environmental and security concerns.
In 1969, Pierre Trudeau’s options for responding to the SS Manhattan were constrained by an ongoing dispute about the status of the Northwest Passage. Canada insists that it is “internal waters” subject to full coastal state control; the United States insists it is an “international strait” open to foreign vessels.
When the SS Manhattan chose not to seek Canadian permission for its voyage, Mr. Trudeau cleverly granted permission anyway, thus preventing the precedent of a non-consensual voyage. He also sent a Canadian icebreaker to assist; it freed the tanker from sea ice 12 times, making the need for Canadian support for the voyage unambiguous.
After the voyage, the Trudeau government enacted the 1970 Arctic Waters Pollution Prevention Act, which asserted jurisdiction, for environmental purposes only, over all ships approaching within 100 nautical miles of Canada’s Arctic coast.
When the United States opposed the legislation, Mr. Trudeau sought and received legitimation from other countries. The 1982 UN Convention on the Law of the Sea includes a so-called Canadian exception, which accords coastal states heightened pollution-prevention powers in ice-covered waters.
Mr. Trudeau did all this even though the SS Manhattan carried just one symbolic barrel of crude oil. His concern was about future voyages by fully loaded tankers; the SS Manhattan provided an opportunity for preventive action.
Today, Justin Trudeau faces a similar challenge. Although the Crystal Serenity is well-managed and should have an uneventful trip, it will be followed by many other large ships, some from companies with dubious safety records. Not all of the risks associated with these ships can be addressed under the 46-year-old Arctic waters law.
Designated shipping lanes are needed to prevent collisions and to route ships around environmentally sensitive areas. Speed limits are needed to reduce the effects of wakes on shore habitats and noise on marine mammals.
A ban on the use of heavy fuel oil is needed to reduce the “black carbon” that lands on snow and ice and accelerates its melting, along with a ban on the emptying of ballast tanks to reduce the risk of introducing invasive species.
Canada has these protections in the St. Lawrence Seaway; now, it needs them in the Arctic.
If Canada were to take any of these steps unilaterally, its right to do so might be contested by the United States, on the basis that the Northwest Passage is an “international strait.” That is why Mr. Trudeau should use the voyage of the Crystal Serenity to spur Canadian-U.S. negotiations on the passage dispute.
The goal must be acceptance of Canada’s “internal waters” position. This would enable Canada to address both countries’ greatest concerns about an open passage: for Canada, environmental risks; for the United States, security risks, including smuggling, illegal immigration and potentially terrorism.
Negotiations would not be easy: All of Mr. Trudeau’s persuasive abilities would be required to convince the United States that an agreement would not create a precedent for other contested waterways. The length of the Northwest Passage, the historic presence of sea ice and the relative absence of shipping so far make it legally distinguishable from disputed straits elsewhere.
When the SS Manhattan set sail, Pierre Trudeau seized the opportunity to pioneer Arctic environmental protection. Now his son has an even greater opportunity – to resolve the Northwest Passage dispute once and for all.Report Typo/Error
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