14 - Legal status of the Northwest Passage

Summary

Canada's position as to the legal status of the Northwest Passage was expressed in 1975 by the Secretary of State for External Affairs Allan MacEachen. Appearing before the Standing Committee for External Affairs and National Defence in May of that year, Mr MacEachen stated:

As Canada's Northwest Passage is not used for international navigation and since Arctic Waters are considered by Canada as being internal waters, the régime of transit passage does not apply to the Arctic.

This official position of Canada on the Northwest Passage is clear enough as far as it goes, but it does leave at least three questions unanswered. These questions will now be examined and are the following: 1) When may a strait be considered as being used for international navigation; 2) What is the legal status of the Northwest Passage itself; and 3) What would be the legal status of the Northwest Passage if it were used for international navigation?

In spite of the conclusion in Chapter 11 that Canada had validly established straight baselines around the Arctic Archipelago, the questions just formulated must still be addressed.

Definition and classification of international straits

At the Third Law of the Sea Conference, the question of international straits was dealt with as a distinct subject, separate from that of the territorial sea. This represents a considerable improvement over the approach taken at the First Law of the Sea Conference and the consequent provisions found in the Territorial Sea Convention of 1958. After much difficulty, the Conference did reach a compromise as to the nature and scope of the right of passage which would be applicable to ‘straits used for international navigation’.