Cablegate: Northwest Passage Conference in Ottawa Offers Bold

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TAGS: EWWT PREL PBTS MARR CA
SUBJECT: Northwest Passage Conference in Ottawa Offers Bold
Idea

1. Sensitive But Unclassified, not for distribution outside
USG channels.

2. (SBU) Summary: Panelists at an Ottawa conference on
Canada's arctic waters called for Canada and the U.S. to
open talks on the Arctic route because the increasing melt
rate of Arctic sea ice could allow significant summer
navigation through the Northwest Passage (NWP) as soon as 14
years from now. In their opinion a well-thought out
governance structure to manage shipping and other activities
and to address environmental concerns is imperative. The
thesis presented by the organizers of the event was that a
bilateral agreement, similar in intent to the 1988 Canada-
United States Agreement on Arctic Cooperation (regarding
government ice-breakers), could be crafted in which the
United States "agrees" to Canada's claim of sovereignty over
the waters of the Northwest Passage (essentially allowing
Canada to claim the passage as Internal waters) and Canada
would, in return, agree to unfettered access by the U.S. for
transit of the passage. The Russian Deputy Chief of Mission
in Ottawa, who participated in the conference, supported
this notion. According to this thesis, the U.S. by acceding
to Canada's desire for the NWP to be internal waters, could
collaborate with Canada to control and safeguard the passage
and secure the North American continent from security
threats in the far north. The conference prompted Canadian
Department of Foreign Affairs and International Trade
(DFAIT) officials in attendance to approach Embassy officers
to explore the idea of government-to-government arctic
discussions. End Summary.

Legal Scholars, Political Scientists and Real Scientists
Discuss NWP

3. (U) Michael Byers, Professor of Global Politics and Law
at the University of British Columbia in Vancouver and
Suzanne Lalonde, Professor of Law at the University of
Montreal organized a one-day program on June 14 in Ottawa to
discuss the subject of "Canada's Arctic Waters in Law and
Diplomacy". Byers and Lalonde argue that the end of the
Cold War and the rise of global terrorism have changed the
world situation such that the Canadian position regarding
the NWP (that it is Canadian internal waters subject to full
Canadian law) actually coincides with U.S. security
interests. As a result, they assert, the two countries have
a unique opportunity to resolve a long-standing dispute and
to concurrently improve the security of the continent's
citizens and environment. The day long event featured five
panel discussions, four of which included American
participants; three that represented universities while one
was from the United States Artic Research Commission.
Embassy ESTH Counselor and Specialist, as well as the Naval
Attach, attended the program.

4. (U) The first panel addressed the matter of "Law"; the
American participant was Professor Bernard Oxman of the
University of Miami's faculty of Law, a world renowned
expert on matters of maritime law and the UN Convention on
the Law of the Sea (UNCLOS). The other two panelists were a
Belgian (Erik Franckxx, Free University of Brussels) and an
Australian (Donald Rothwell of the University of Sydney).
The panelists each presented arguments for about 10 minutes,
concerning the validity and utility of Canada's maritime
claims in the arctic followed by a roughly 60 minute
Qclaims in the arctic followed by a roughly 60 minute
question and answer session. Franckxx provided a legal

history of the Canadian claim. Rothwell argued that Canada
cannot claim the NWP as historic waters since it has been so
little used; but he was the first speaker of the day to
suggest that the entire argument could be bypassed if Canada
and the United States were to negotiate a bilateral
cooperative agreement regarding use of the NWP. He
suggested also that the Antarctic experience may illuminate
solutions.

5. (U) The American legal scholar, Dr. Oxman, (who was one
of the senior U.S. negotiators for UNCLOS III) noted that
freedom of navigation in arctic waters is one principle that
supports the global freedom of navigation and of over flight
(innocent passage and /or transit passage). His statement

OTTAWA 00001904 002 OF 004

suggested that any acknowledgement by the United States, or
other governments, that the NWP is internal waters would
erode the global principle, and therefore is to be avoided.
Oxman did also note that UNCLOS Article 234 (the ice-covered
area clause) allows Canada, within its exclusive economic
zone, to exercise effective measures, specific to the harsh
arctic realm, to prevent, reduce and control marine
pollution from vessels. Incidentally, Oxman also related his
recollection of the Canadian position during the UNCLOS III
negotiations that "Canada has no international straits"; a
choice of phrase he attributed to a careful diplomatic
attempt to not be forced to argue the matter of
inviolability of International Straits.

6. (U) The second panel addressed "Science". The American
panelist was George Newton, Chair of the U.S. Arctic
Research Commission. Professor David Barber of the
University of Manitoba in Winnipeg, and John Falkingham of
Environment Canada's Marine and Ice Services Division
rounded out the panel. The panelists concerned themselves
with describing ice conditions, i.e., the physical geography
and climatology of the Arctic Ocean region with Barber
articulating the position that ice cover is rapidly
diminishing, that this process is irreversible and that
possibly as early as 2020-2050 the NWP will be a true
navigable waterway. On the other hand, Falkingham stressed
the uncertainty of our knowledge noting that for as long as
we have had records, the ice cover has been highly variable
from year to year. Falkingham also said that in recent
years the sea ice throughout the NWP and Canada's Arctic
Archipelago has actually increased in thickness. In fact,
he thinks that the NWP will be the last passage (after the
Russian Northern Route and the Murmansk to Churchill route)
to become navigable; his time frame is 2070 to 2100. He
also reminded the audience that in the arctic winter there
will always still be ice in the NWP, rendering it un-
navigable during that part of the year.

7. (U) George Newton of the U.S. Arctic Research Commission,
like Falkingham, explained to the audience that our
scientific knowledge of the arctic is very, very modest. He
characterized forthcoming exploration and research during
the 2007-2008 International Polar Year (IPY) as a voyage of
discovery comparable to that of Christopher Columbus.

8. (U) The third panel addressed "Security and Policing";
the American participant was Professor Elizabeth Elliot-
Meisel of Creighton University in Omaha, Nebraska.
Professor Rob Huebert of the Center for Military and
Strategic Studies at the University of Calgary in Alberta,
and the former Commander of the Canadian Forces Northern
Area, Colonel Pierre Leblanc (CF ret.), were the Canadian
panelists. Elliott-Meisel described the current situation
as similar to the period leading to the 1988 Canada-U.S.
Arctic Cooperation Agreement, characterized by acknowledged
interdependence and close POTUS-Canadian PM links. She
asserted that "cooperation may not compromise sovereignty,
but lack of cooperation will mean less security." She
proposed that the United States, within a bilateral
agreement, should recognize Canadian sovereignty over the
NWP, and Canada and the U.S. would then work collaboratively
to ensure appropriate capabilities are brought to bear to
Qto ensure appropriate capabilities are brought to bear to
ensure security of Canada's arctic maritime domain.

9. (U) Both Colonel Leblanc and Professor Huebert decried
the lack of Canadian military capability in Canada's arctic
regions. Leblanc emphasized that one test of sovereignty is
to "know what is going on in your territory," and Canada, in
his opinion, cannot meet this test in the arctic. Leblanc
also mentioned that the unchallenged transit of submarines
through the NWP bolsters the claim that it is an
international strait. Finally, Leblanc agreed with previous
panelists that U.S. recognition of Canadian sovereignty
would serve to strengthen overall North American security.
Professsor Huebert did not explicitly support a Canada-U.S.
agreement on the NWP, suggesting instead that the
sovereignty debate is a red herring. In his opinion, the
critical issue is security, and a shared Canada-U.S.
approach to security would achieve the greatest benefit for
North America. In contrast to the Cold War, however, when

OTTAWA 00001904 003 OF 004

the threat was a military one posed by the Soviet Union (and
which the United States addressed throughout Canada's arctic
via the DEW Line, subs under arctic ice, etc.) the new
threats are somewhat ill-defined and may include
environmental threats (oil spills), threats to cultures
(traditional Inuit mode of life) and economic threats
(illegal fishing) as well as traditional military and
criminal threats. The challenge is for government leaders
to identify and prioritize the threats, and that effort
will, in turn, precipitate policy solutions. He noted that
so far the political authorities are "all talk and no
action" on taking arctic security seriously.

10. (U) The fourth panel addressed "Diplomacy." The
American participant was Christopher Joyner, Professor and
Director of International Law and Politics at Georgetown
University. The other two panelists were Sergey Petrov,
Deputy Chief of Mission at the Russian Embassy in Ottawa and
conference organizer Professor Byers. Petrov told the
conference that his government would support a negotiated
deal between Canada and the United States that would see
those countries decide on how to regulate the Arctic waters
of the Northwest Passage. He noted that development of the
NWP, and the reinvigoration of the Russian northern route as
well, will only be possible with a huge influx of financial
resources and that that will require multinational
cooperation on governance and regulation. "I'm quite
comfortable having Canada and the U.S. decide how to ensure
this future seaway is available for international sailing"
he said to the press after speaking at the conference.

11. (U) Joyner discussed modes of governance for ensuring
safe passage through the NWP and he asked, "Is resolution of
sovereignty a prerequisite for establishing a regime for NWP
navigation?" His answer was maybe, but not necessarily.
Professor Joyner described how the IMO'S Polar Code could
eventually become customary international law, but that
process will be long and slow. Alternatively the Turkish
approach in 1998 of unilaterally implementing regulations on
all vessels transiting the Turkish straits (Bosporus and
Dardanelles) is another, more controversial, approach.
Byers, reiterating the notion put forth in his conference
discussion paper, proposed negotiations aimed at achieving
U.S. recognition of Canada's claim, i.e., that the full
force of Canada's domestic law applies in the passage,
balanced off by a firm commitment to open access for all
U.S. vessels, active promotion and support for international
shipping, and immediate investments in equipment and
personnel necessary to monitor and police the passage on a
rigorous, year-round, basis.

12. (U) The final panel provided the "Inuit Perspective."
There was no American participant on this panel. Ms. Aaju
Peter, a young Inuit lawyer, provided several thoughtful
observations. She noted that travel by dog sled over frozen
passages in the arctic should be as valid as passage by
ships on open water, or subs under the ice to establish
historic use and sovereignty. She also noted that Article
15 of the Canada-Nunavut Land Claim authorizes a "Marine
Council" to establish Inuit involvement in the development
of the arctic maritime regime and that its efforts should
feed into the Arctic Council's 2008 report on "Arctic Marine
Qfeed into the Arctic Council's 2008 report on "Arctic Marine
Shipping Assessment". That Arctic Council report will, in
turn, feed the broader policy debate on sovereignty,
security, and environmental and cultural protection. Ms.
Peter also made the bold suggestion that local human
capital, rather than imported southerners, should be trained
and employed as the aircraft and ship pilots, the Search and
Rescue technicians, the police and military staff required
to manage increased ship and aircraft traffic in the arctic
region.

13. (SBU) Comment: The discussion paper put forward by the
symposium's organizers, Michael Byers and Suzanne Lalonde,
which was prepared to encourage debate at the conference,
was entitled "Who Controls the Northwest Passage." Their
choice of the word "control" rather than ownership is
significant. The majority of opinion offered by panelists
suggested that some form bilateral agreement between Canada

OTTAWA 00001904 004 OF 004

and the United States would allow effective shared control
by the two countries of the NWP, balancing Canada's
"sovereignty" need with America's security and transit
imperatives. The conference discussion was notable for the
relative balance of the presentations and the general lack
of anti-U.S. rhetoric that has often characterized media
reporting on this issue. There were a number of GOC
officials with responsibility for arctic issues in
attendance at the conference. Our private conservations
with them tended to reflect an interest in discussion with
the U.S. on the NWP, the bilateral dispute over border
claims in the Beaufort Sea and other arctic issues. End
Comment.

WILKINS

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