If the US Navy intends to send warships through Canadian waters, we could find ourselves in a messy public dispute with the Trump administration.

In late 2018, American Secretary of the Navy Richard Spencer made an extraordinary comment with potentially serious ramifications for Canada. During a talk on naval security at the Center for Strategic and International Studies in Washington, DC, the Secretary offered a brief comment on the US Navy’s role in the rapidly changing Arctic, as the ice recedes and new sea routes form across the circumpolar North. The United States, Spencer said, will have to be more engaged in the region. And one of the ways it intends to do that is with freedom-of-navigation voyages through the Northwest Passage.

Freedom-of-navigation voyages have been an American foreign policy tool since the Cold War. They have made headlines in recent years as the US Navy conducts these operations in the South China Sea — sending warships through the area as a demonstration of its right and ability to transit those international waters that are now claimed by China. These voyages are aggressive, highly visible political statements normally reserved for the highest-priority maritime disputes.

Spencer’s call for such a voyage through Canadian waters is worrying. But it is also ambiguous. “We need to be doing FONOPS [freedom-of-navigation operations] in the northwest — in the northern passage,” he told his audience. “We need to be monitoring it.”

Switching to the term “northern passage” might have been a correction to mean Russia’s Northern Sea Route. There was no clarification to be had when he made a similar statement in January. He reiterated the need for such a voyage during a discussion at the Center for a New American Security, telling his audience that “the CNO [chief of naval operations] and I have talked about having some ships make the transit in the Arctic…We’re just fleshing it out right now.”

The US assumes the existence of an international strait through which it, like all states, enjoys the right of transit passage for commercial and military vessels. These positions haven’t shifted much in 80 years.

If the US Navy is thinking of sending surface vessels through the Russian or Canadian straits, the results could be explosive. A voyage through waters claimed by Russia would certainly meet a military response. Indeed, the last time the US made that voyage was in 1967, and the Soviet government threatened to board and detain the icebreakers Edisto and Eastwind, prompting the American Coast Guard to reroute the vessels. A voyage through Canadian waters would present no military threat, but would likely spark a political crisis akin to those arising from the voyages of SS Manhattan in 1969 and the Polar Sea in 1985.

Canada and the US have long disagreed over the legal status of the Northwest Passage. Canada asserts that these waters are internal — essentially as Canadian as the Rideau Canal. The US assumes the existence of an international strait through which it, like all states, enjoys the right of transit passage for commercial and military vessels. These positions haven’t shifted much in 80 years, but over that long history the issue has been well managed and dormant mostly because neither side has ever wanted to pick a fight.

This comfortable agree-to-disagree arrangement would be shattered by the aggressive display of a freedom-of-navigation voyage, and Canada would soon find itself in a very public fight with the Trump administration. In an age of American foreign policy when diplomacy means “winning” and when friend and foe alike are viewed as competitors scrambling for resources and respect in a zero-sum game, the kind of nuanced diplomacy that has managed the Northwest Passage dispute since the 1950s would be hard to maintain. Simply put, agreeing to disagree would no longer be possible.

Stopping an American warship isn’t an option; the remedy would therefore be diplomatic and legal. Canada would have to refer the case to the International Court of Justice, a judicial organ of the United Nations that adjudicates legal disputes between members. Submitting the case to the ICJ would indicate Canada’s confidence in its position and its willingness to resolve the matter within the framework of international law. This option of adjudication has come up before. It was threatened by the US in the early 1960s during a tense round of negotiation surrounding the Arctic waters, and by Canada in the 1980s after the voyage of the Polar Sea. Yet each time it was considered too risky since, as Joe Clark put it in 1985, “You lose, and that’s it.”

It’s a necessary risk. Canada’s legal position is strong and the Trump administration’s disdain for international institutions would put it in an awkward position. Washington could either accept adjudication from a court that US Secretary of State Mike Pompeo has said is little more than a “form [sic] for attacking the United States” or reject ICJ jurisdiction and create the impression that US actions are less about upholding the law of the sea and more a simple case of bullying.

In any dispute, it’s highly likely that Canada would also attract new allies from within the US. American environmentalists, NGOs and politicians supportive of strong environmental protection for the Arctic would back Canada and its right to impose environmental controls, which would not be possible were the Northwest Passage to become an international strait. Even many in the American security community would hesitate to open the Northwest Passage as an international strait lest the Russian and Chinese navies gain free access to the heart of Arctic North America.

Public support and popular perception are important. The FONOPs being conducted in the South China Sea risk conflict with every voyage. But the American public, and most of the world, are supportive of them. They are seen as the right thing to do. If Washington chooses a messy fight with Canada, it risks delegitimizing the concept of FONOPs and shattering the consensus about them by changing the narrative. Suddenly they wouldn’t be simply a means to reject Chinese state overreach; they could be seen as an attack on Canadian jurisdiction and a threat to environmental protection.

Canada has long welcomed America’s involvement in the Arctic, even going so far as to label the US our “premier partner” in the North. However, the public musing about freedom-of-navigation voyages coupled with the Trump administration’s aggressive winner-take-all approach to diplomacy means that Canada must be ready for the collapse of business as usual in the Arctic. A fight with the US over the Northwest Passage would be good for no one, but it’s one that Canada could win.

Photo: shutterstock / by Exclusive Aerials


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