The Northwest Passage dispute invites Russian mischief
A Russian bomber in the Arctic waterway would drive a wedge between Canada and the United States
Russian Deputy Prime Minister Dmitry Rogozin poked the Norwegian government in the eye last week, when he stopped on the Arctic archipelago of Svalbard during a flight to the North Pole. Svalbard is Norwegian territory, and Rogozin is prohibited from travelling to Norway under sanctions adopted by that country.
However, Norwegian sovereignty over Svalbard is limited by a 1920 treaty that guarantees access to the nationals of 42 countries, including Russia. The Norwegian government has acknowledged Rogozin’s right to land there, while protesting the provocative nature of his action.
Stephen Harper take note: The Russians are up to mischief, and Svalbard is not the only place in the Arctic where international law creates an opportunity for them.
If Russian President Vladimir Putin wanted to cause the Canadian government some grief, he would order a Tupolev Tu-95 “Bear” bomber to fly through the Northwest Passage. In one fell stroke, the Russian president would drive a wedge between Canada and her closest ally.
The United States considers the Northwest Passage an “international strait,” through which foreign ships have a right of “transit passage.” While this right does not affect ownership of the waterway, it would prevent Ottawa from controlling who enters it.
Conversely, Canada claims the Northwest Passage constitutes “internal waters.” This designation would bar ships from entering the waterway without express consent and require vessels to comply with Canadian customs, immigration, criminal and environmental laws.
Although the dispute has always focused on ships, it also concerns aircraft. Foreign military planes may fly through an international strait unless they linger or show hostile intent.
If Putin sent a Bear bomber into the Northwest Passage, he would force U.S. President Barack Obama to make a choice: support Putin’s right to do so, consistent with the United States’ international strait claim; or oppose the flight and undermine the U.S. position.
Stephen Harper would be forced to make an equally difficult choice between allowing the Russian plane through, or using force to stop it.
An internal waters claim is undermined by usage that lacks consent, which is why Canada granted permission to U.S. ships that sailed through the Northwest Passage in 1969 and 1985 — even though the ships had not requested permission. But while Canada has always been careful to avoid any escalation of its dispute with the United States, it is difficult to imagine Harper — who has taken a harsh rhetorical stance against Russia over Ukraine — providing unsolicited permission to a Bear bomber.
Canada could always issue a diplomatic protest. Under international law, a protest is usually sufficient to prevent another country’s action from undermining sovereign rights. But since the flight would constitute a highly visible challenge to Canada’s legal position, a protest might not suffice where it really matters — in the harsh world of global politics. Seen through the flinty eyes of China, India and the European Union, it could take more than a protest to defend Canada’s claim.
Yet shooting down a plane in these circumstances is not a realistic option. Russia would regard such an act as an armed attack, and because of the Canada-U.S. dispute, it would actually have a legal leg to stand on.
Any forceful action by Canada would also incur the wrath of the United States, and not just because of the international strait claim. Washington is engaged in high-level diplomacy with Russia on a number of sensitive non-Arctic issues, including Ukraine, Iran and the Islamic State.
Putin, of course, will weigh the risk of invoking a forceful Canadian response. He is playing chess, not Russian roulette. This explains why Bear bombers have only approached but not yet entered Canadian airspace.
The Russian president will also consider the fact that his country has its own internal waters claim — in the straits along its northern coastline — that could be affected by such an act. The United States contends that these channels constitute international straits.
However, the Russian legal position is more secure than the Canadian one. No foreign ships or aircraft have ever entered Russia’s Arctic straits without seeking and receiving permission. When a U.S. icebreaker sailed toward the Vil’kitskii Strait in 1965, Moscow threatened to “go all the way” in response — and the icebreaker turned round.
Of course, Putin might not send a Bear bomber through the Northwest Passage after all. But Rogozin’s recent stop in Svalbard should have alarm bells ringing in Ottawa and Washington. It’s time to resolve the Northwest Passage dispute, before it is used to divide Canada and the U.S.