13. Three Key Findings of China’s Arctic Cooperation
13.3 Canada’s northern sovereignty, China’s southern sovereignty
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this transformation intently, undoubtedly learning lessons on how governance of a contentious maritime region can evolve into one with a more robust legal foundation. The transformation of Arctic governance could be a model for China to follow in the South China Sea.
13.3 Canada’s northern sovereignty, China’s southern sovereignty
When China’s Assistant Foreign Minister Liu Zhenmin made his four points about China’s view on Arctic cooperation in 2010, his first point stressed that, “States should recognize and respect each others’ rights under international law” (Liu, 2010). It is important to understand what Liu meant by the rights that each state has under international law. An important issue, maybe the most important issue, for Canada in the Arctic has always been its sovereignty over its Arctic Archipelago and the strait of water that passes through it, the Northwest Passage. Does Liu’s speech, and the statements and actions of other Chinese Arctic actors, indicate China’s position on Canada’s northern sovereignty. Specifically, does China agree with the position of Canada that the Northwest Passage should be classified as Canada’s internal waters?
The Northwest Passage (“NWP”) is the body of Arctic water above Canada, between Baffin Bay on the east and the Bering Strait in the west, that connects the Pacific and Atlantic oceans. It has long considered by Canada to be its internal waters, thus governed by Canadian domestic law. The United States, however, considers the NWP to be an international strait, which allows the right of passage beyond innocent passage and thus should be governed by international law. Climate change has brought the disagreement over the status of the strait into the public.
As summer ice melts in increasing volumes each year, the NWP represents a potentially valuable commercial shipping route.29 There are varying estimates as to how soon the passage will be open to commercial vessels, but a 2001 U.S. Navy report estimated that
“within five to ten years, the Northwest Passage will be open to non-ice strengthened vessels for at least one month each summer” (Carnaghan & Goody, 2006). The strait has indeed been opened up to summer shipping, with a Chinese company using the NWT to
29 The shipping route between Asia and Europe is around 15% shorter when using the NWP (Lasserre, 2010).
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ship mineral resources from Northern Quebec to Liaoning. The opportunity for future shipping brings the disputed status of the NWP into the spotlight.
The Canadian government considers the NWP to be “historical internal waters” and thus fall under Canadian jurisdiction and control (Carnaghan & Goody, 2006). The Canadian historical claim is based on historical records that go back to 1880 when the British gave Canada sovereignty over the Arctic islands. The United States, however, considers the passage to be international waters. The 1969 and 1970 transits of the commercial tanker SS Manhattan, as well as the 1985 transit of the US Coast Guard icebreaker Polar Sea, through the NWP highlighted the disputed status of the strait. Immediately after the 1985 transit of the NWP by the US Coast Guard vessel, the Canadian government announced that effective January 1, 1986 it was implementing straight base lines around the Arctic archipelago, claiming full sovereignty over the NWP as “historical, internal waters”
(Lackenbauer, 2009).
Straight base lines are a legally accepted means for determining the extent of sovereignty over a fragmented coast or archipelago, which the Canadian government believes the Canadian Arctic Archipelago classifies as.30 When the announcement of straight baselines around the NWP was made, Canadian Minister for External Affairs Joe Clark stated, “these baselines define the outer limit of Canada’s historic international waters”
(Lalonde & Byers, 2009). Thus the Canadian government classified the NWP as internal waters based on both straight baselines around a fringe of islands along its coast, as well as a historical claim to the islands, and thus the surrounding waters. Under international law, a country may claim waters on historical grounds if it can show that it has effectively exercised exclusive authority over them with the acquiescence of other relevant states.31
30 The general principle of determining the extent of sovereignty using straight baselines has been codified in Article 7(1) of 1982 United Nations Law of the Sea Convention: “in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.” (UNCLOS, 1982).
31 Although UNCLOS does not mention claims based on historical title, two important UN Secretariat documents address the issue: the 1957 Memorandum on Historic Bays, and the 1962 study entitled
‘Judicial Regime of Historic Waters, including Historic Bays’. The results have been summarized as:
“Historic waters are waters over which the coastal State, contrary to the generally applicable rules of international law, clearly, effectively, continuously, and over a substantial period of time, exercises sovereign rights with the acquiescence of the community of States.” (Pharand, 2007).
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Openly disputing Canadian sovereignty over the NWP would be problematic for China.
China has its own disputed claims of sovereignty over virtually the entire South China Sea and the islands therein, the Diaoyu Islands and Taiwan. Moreover, China’s stance on the Qiongzhou Strait, the body of water between Mainland China and Hainan, is almost identical to Canada’s position on the NWP (Lackenbauer & Manicom, 2013). Although the Chinese government has not taken a formal stance on the status of the NWP, the relatively small number of Chinese academics that have studied Canada’s historical claim to the NWP have generally been in support of, or a least sympathetic to, Canada’s claims over its Arctic archipelago.
Chinese scholarly view on the NWP
A small number of Chinese scholars have written about Canada’s sovereignty claims over its Arctic archipelago and the enclosed NWP. Cheng Baozhi of the SIIS has written a detailed historical account of Canada’s claim to the waterway as well as the opposing position of the US (Cheng, 2012). Cheng also recognizes that Canada’s interest in creating a rules based regime to govern the Arctic stems in part from its longstanding disagreement with the United States over the status of the NWP (Cheng, 2014).
Scholars from the Ocean University of China at Qingdao have written extensively on the legal status of the NWP. Writing in the Journal of Ocean University of China, Mei Hong and Wang Zengzhen analyzed Canada’s claim of sovereignty over the Arctic archipelago and NWP. Mei and Wang observe that historical possession is defined neither in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone or the 1982 UNCLOS. In absence of an international definition of historical possession, they use the definition used by Canadian jurist Donat Pharand.32 Although Mei and Wang note that the issue has not been resolved between Canada and the US, their analysis suggests a sympathetic view of Canada’s claims (Mei and Wang, 2010).
Liu Huirong and Liu Xiu, also at the Ocean University of China at Qingdao, have analyzed the historical and legal claims to the NWP that Canada makes. They assert that historical claims to territorial waters must be based, in minimum, on two factors: 1) long-term territorial claims and exercise of sovereignty, and 2) the open or tacit approval by
32 Pharand provides three basic requirements to determine historical ownership of waters: 1) exclusive exercise of state jurisdiction, 2) long-term usage; and 3) acquiescence by foreign states. See Pharand, 2007.
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other countries of the fact of territorial control. After examining the history of the dispute over the NWP between Canada and the US, and whether the two aforementioned factors to determine historical waters have been met, Liu and Liu come to a conclusion in Canada’s favour:
In sum, Canada has the right to determine what types of concrete measures it should take in its control and protection over the territorial waters of the Arctic Archipelago. Practices make it clear that the fact of Canada’s control over the territorial waters of the Arctic Archipelago has had, at a firm level, the recognition and tacit approval of the large majority of the principal actors in international law, and that includes the United States (Liu & Liu, 2010).
In general, the few Chinese scholars that have analyzed the issue agree with the Canadian position on the NWP, namely, that the NWP should be constituted as Canada’s ‘internal waters’. The opinion of Chinese scholars is likely also shared by Chinese officials, given the few mentions that the NWP has had in Chinese officials’ speeches. In their 2014 essay, officials from the MFA Department of Law and Treaty explicitly refer to the sea route as Canadian (Jia & Shi, 2014). However, the official position of Beijing cannot be confirmed as no Chinese official has expressed an official position on the NWP.
Scholarly support for the Canadian position could be seen as directly related to China’s own contentious maritime claims. In 1996, in accordance with its 1992 Law of the People’s Republic of China on Territorial Sea and its Contiguous Zone, China announced its baselines around the Chinese mainland. Also included were straight baselines around the Paracel Islands, a group of islands approximately 180 miles southeast of Hainan. In September 2012 China submitted with the United Nations its claim for straight baselines around the Diaoyu Islands. The baselines connect two groups of islands about 47 miles apart, 177 miles east of the Chinese mainland. China claims these baselines are in accordance with its 1992 Territorial Law (Roach, 2013).
China has also claimed all of the islands in the South China Sea, which includes the Paracel Islands and the Spratly Islands, and surrounding waters as Chinese territory. This claim is based on historical claims of ownership to the islands (Shen, 2002). Similar to Canada’s case, China can trace its discovery and usage of the islands back through historical records. Similar to Canada’s case, China’s claims of sovereignty are disputed by nearby states.
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Sino-Canadian cooperation?
In the Arctic and the South China Sea, Canada and China are both the parties with the most controversial unsettled claims maritime claims. Given the similarity of Canadian and Chinese claims we should expect to see some level of cooperation between the two countries. Some evidence of shared views on each other’s respective disputes comes from their actions in their respective territories. Canada’s actions in the South China Sea suggest acquiescence to China’s claims, while China’s actions in Canada’s Arctic Archipelago suggests that China does not dispute the Canadian claim. Canada has been silent on recent tensions in the South China Sea, despite being very active in the regional institution building and governance right through the late 1990s.33 Despite rising tensions in the region, there has been no official Canadian statement stating Canada’s position on the maritime disputes. How do we explain this silence? The reason for Canada’s silence on the South Chia Sea dispute can likely be attributed to a quid pro quo with China;
Canada does not get involved with China’s territorial disputes in exchange for China’s acquiescence on the status of the NWP.34
Moreover, during this period of Canadian non-intervention in the South China Sea dispute there has been increasing Chinese investment in the Canadian Arctic. Chinese firms are cooperating with Canada on investment on the sea route and investment in the Canadian Arctic more generally. There has been Sino-Canadian cooperation on the NWP, most notably in the mining sector with a Chinese firm, using a Canadian ship, transporting resources to China through the NWP. Jilin Jien Nickel Industry Co. has begun using the Arctic sea route to transport nickel mined in Quebec through the Arctic on its way to Liaoning (Bennett, 2015). Other Chinese companies have invested in mining operations in the Canadian Arctic, including major operations in Northern Quebec, Yukon Territory and Nunavut (Lackenbauer & Lajeunesse, 2015). Cooperation
33 The Canadian government, through the Canadian International Development Agency (CIDA), financially supported the South China Sea dialogues that were hosted in Indonesia. CIDA contributed $4 million over ten years to support the forum that brought academics and officials together to discuss South China Sea issues. CIDA abruptly cancelled funding for the ongoing workshop in 2001.
34 Conversation with a Taiwanese academic on China’s Arctic policies. This reasoning has also been speculated by Canadian academics. Regarding Canada’s recent silence on South China Sea issues, James Manicom writes “Canada may be reluctant to raise navigational issues on the grounds that this may draw attention to Canada’s unique perspective on navigation through the Northwest Passage.” See: Manicom, 2012.
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has also begun build an observatory in a small town in Canada’s most northern province (Wang, 2015).
Another an indication of China’s position on the NWP has been the protocol followed before Chinese ships have entered the NWP. Prior to the Chinese icebreaker Xuelong entering the NWP, it notified the Canadian government that it would be entering the waters, suggesting that China acquiesces to the Canadian position of sovereignty over the NWP (Huebert, 2011). Canada insists that when foreign ships enter its territorial waters they have the right of innocent passage but it maintains the right to govern shipping in its internal waters according to domestic regulations, including environmental provisions.
The passage through Canadian internal waters of the Chinese icebreaker indicates that China shares this view and has therefore been consistent with Canadian regulations.
It should be stressed that China’s official position on the status of the NWP has not yet been made clear, though the writings of Chinese Arctic scholars and the actions of China in the NWP suggest that China will not dispute Canada’s claim in the future.
Nevertheless, given China’s ambiguity, it will be an important area of focus for Canada’s relations with the PRC in the coming years.
China’s activities in in the Arctic from the early 1990s until the present have had three notable characteristics: China’s response in relation to its status as an “outsider” to Arctic governance, China’s general support for the Council’s transition from soft law to hard law, and China’s view of Canada’s maritime sovereignty claims in relation to its claims in the South China Sea.