Apr 1, 2025

Introduction
I. Background Information 
            A. Relevant International Maritime Law 
            B. The U.S.-Canada Dispute on the Legal Status of the Northwest Passage 
                 1. The Canadian Position
                 2. The U.S. Position
II. Shaping U.S. Policy
            A. Economic
            B. Environmental
            C. Security
            D. Diplomatic
III. Crafting a Legal Solution
            A. U.S. Recognition of the Northwest Passage as Archipelagic Waters
            B. A Canadian Montreux Convention
            C. U.S. Recognition of the Northwest Passage as Internal Canadian Waters
            D. An Arctic Amendment to the United Nations Convention on the Law of the Sea 
Conclusion

Introduction

    On May 19, 1845, two British warships sailed from the River Thames, bound for an unusual destination.¹ Led by Sir John Franklin,² the HMS Erebus and HMS Terror were under orders from the British Admiralty to make real a centuries-old myth: they were to find the legendary Northwest Passage.³ In light of their destination, the warships were well provisioned and heavily modified; the Royal Navy supplemented their sails with steam engines for emergency power, strengthened their hulls with sheet metal to withstand ice, and installed desalinators and boilers to provide drinking water.⁴ As a result of their careful preparations, the Franklin Expedition departed England with high morale.⁵ After a brief stop in Greenland, the two vessels set off to begin their search.⁶ On July 26, the HMS Erebus and HMS Terror were spotted by whaling ships in Baffin Bay, sailing northwest for the Canadian Arctic.⁷ Thereafter, the two ships—with 129 souls on board—were never seen again.⁸

    Sir John Franklin was far from the first to search for the Northwest Passage, and he would not be the last. Indeed, the idea of a western sea route from Europe to East Asia is older than European knowledge of America itself, as it was in search of such a sea route that Christopher Columbus sailed west in the first place; his discovery of America was an accident and, ironically, obstructive of his initial goal.⁹ The Portuguese found transitable (but lengthy) routes to India and the East Indies by rounding Africa and South America, respectively, while the Dutch unsuccessfully searched for a northeastern route around Russia.¹⁰ As explorers filled in the American map, British attention narrowed on the Canadian Arctic and a hypothetical Northwest Passage.¹¹ Many British adventurers, among them such famous names as Sir Francis Drake and Captain Cook, tried their hand at finding the Northwest Passage; though their prize eluded them, they helped to roll back terra incognita on maps of the Canadian Arctic.¹² The nascent American Republic shared in Britain’s dream of a Northwest Passage; Lewis and Clark, along with President Thomas Jefferson, vainly hoped that the Missouri River would lead them to the Northwest Passage.¹³

    Ultimately, it was Sir Robert McClure and his expedition that discovered the Northwest Passage, entering from the west by sea and completing the route over land in 1854 after their ship became trapped in the ice.¹⁴ Ironically, Sir McClure was searching not for the Northwest Passage but for the Franklin Expedition.¹⁵ In a testament to the dangerous conditions of the Northwest Passage, it was not transited entirely by sea until 1905, when Norwegian explorer Roald Amundsen and his crew completed the journey in a herring boat.¹⁶ In the century since, the same ice flows faced by Sir Franklin, Sir McClure, and Amundsen have largely kept the Passage closed. Though ships periodically transit the Passage when the ice permits, variable conditions have prevented consistent maritime traffic.¹⁷

    However, the impracticality of the Northwest Passage as a maritime route may soon become an outdated notion. Climate change is severely impacting the Arctic; the region is “warm[ing] three times faster than the world as a whole.”¹⁸ Arctic sea ice for the month of September has experienced a 43 percent decline between 1979 and 2019.¹⁹ The remaining sea ice tends to be thinner.²⁰ “Over the past five decades, sea ice extent in the Canadian Arctic has decreased by [5 and 20 percent] per decade (depending on [the] region) during the summer months.”²¹ While year-round navigability in the Northwest Passage remains a distant prospect,²² projected reductions in summer ice coverage create the possibility of seasonal navigability for commercial vessels.²³

    However, climate alone will not determine whether the Northwest Passage has a future as a maritime trade route. Whether international vessels can transit the Northwest Passage (and if so, what laws and regulations such vessels are subject to) depends upon the Northwest Passage’s legal status.²⁴ This status is disputed. Canada claims that the Northwest Passage constitutes its internal waters, which would give Canada near-total control over international shipping in the Passage (including the ability to prohibit it entirely).²⁵ The United States rejects Canada’s claim, arguing instead that the Northwest Passage is an international strait, which would severely curtail Canadian authority over international shipping in the Passage.²⁶

    This Note argues that the United States should work with Canada to pass an amendment to the United Nations Convention on the Law of the Sea (UNCLOS) that allows Canada to legally claim the Northwest Passage as internal waters. While the United States has long championed freedom of navigation,²⁷ important U.S. security, environmental, and diplomatic interests weigh in favor of a legal regime that allows Canada to exercise complete control over the Northwest Passage. However, UNCLOS does not currently support Canada’s claim. Thus, the best means of accomplishing this objective is for the United States to work with Canada to pass an Arctic amendment to UNCLOS that would allow Canada to draw straight baselines around the Canadian Arctic.

    Part I discusses relevant international maritime law and delves into the legal positions of the United States and Canada on the status of the Northwest Passage.²⁸ Part II examines the competing U.S. interests at stake in the legal status of the Passage.²⁹ Part III explores potential legal solutions that would satisfy the United States’ most pressing interests.³⁰

I. Background Information

A. Relevant International Maritime Law

    International maritime law prescribes various concepts and rules to govern the power of states over the waters off their coasts and the vessels that enter those waters. Today, the vast majority of this law is provided by the United Nations Convention on the Law of the Sea, more commonly known as UNCLOS.³¹ UNCLOS came into effect in 1994, and there are 170 parties to the treaty, including Canada.³² The United States is not a party to UNCLOS but nonetheless considers the vast majority of the treaty to be customary international law.³³ Much of UNCLOS simply codified customary international maritime law, but some provisions created new legal concepts that confer new powers on states, including, for example, archipelagic waters and exclusive economic zones.³⁴ Taken together, the provisions of UNCLOS provide “a comprehensive regime of law and order in the world’s oceans and seas.”³⁵

    Some of the most important articles of UNCLOS are its provisions concerning maritime zones. Coastal states have territorial claims over both land and sea; the boundary between these claims is the baseline.³⁶ The baseline is drawn at the mean low-water line (where the water and land meet at low tide), running along the coast.³⁷ When a maritime zone is said to extend a certain number of nautical miles from a state’s coast, the baseline is the starting point for that measurement.³⁸ The location of a baseline is thus important for determining the extent of a state’s maritime zone.

    However, under some circumstances, states are permitted to draw a special type of baseline: the straight baseline.³⁹ Since the outer limit of a maritime zone is determined by the baseline, and normal baselines run strictly along the coast, the outer limits of maritime zones tend to take the shape of the coast.⁴⁰ This can make it difficult to draw the boundaries of maritime zones adjacent to coastlines with deep indentations. Thus, UNCLOS allows for coastal states to draw straight baselines “where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.”⁴¹ In such localities, the state may draw a straight baseline from the “appropriate points ... along the furthest seaward extent of the low-water line.”⁴² This comes with the caveat that “[t]he drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast.”⁴³ Whether a baseline is normal or straight does not affect the substantive rights of a coastal state in a maritime zone; it only determines the boundaries of those zones.⁴⁴

    Moving seaward from the baseline, a coastal state’s power decreases with the end of each zone.⁴⁵ The first maritime zone, and the one over which a state exercises the most authority, is its internal waters. A state’s internal waters consists of all “waters on the landward side of [a] baseline.”⁴⁶ A state has complete sovereignty over its internal waters;⁴⁷ the full force of a state’s domestic law applies, making that state’s authority over its internal waters no different than its authority over land.

    On the other side of the baseline is the next maritime zone: the territorial sea. A coastal state “has the right to establish the breadth of its territorial sea up to a limit not exceeding [twelve] nautical miles, measured from [its] baselines.”⁴⁸ Here, too, the coastal state is sovereign,⁴⁹ so its domestic laws apply. However, the territorial sea differs from internal waters through the right of innocent passage.⁵⁰ “[S]hips of all states ... enjoy the right of innocent passage through the territorial sea” so long as they do not intend to stop in one of the coastal state’s ports or enter its internal waters.⁵¹ Passage is innocent when it is “continuous and expeditious,” though ships can stop if “incidental to ordinary navigation or ... necessary by force majeure or distress.”⁵² Threats, use of weapons, military reconnaissance, propagandizing, violations of law, intentional pollution, and sabotage are prohibited for ships in innocent passage.⁵³ Coastal states’ interference with the right of innocent passage is limited, in relevant part, to upholding safe navigation, enforcing fisheries laws, preventing pollution, and preserving the environment.⁵⁴ Coastal states can temporarily suspend innocent passage in parts of its territorial sea to protect their security if they do so “without discrimination in form or in fact among foreign ships.”⁵⁵

    Subsequent maritime zones are not part of a coastal state’s sovereign territory.⁵⁶ In its contiguous zone, extending up to twenty-four nautical miles from its baselines, a state has special jurisdiction to prevent vessels (and those aboard them) from breaking laws within the state’s sovereign territory, and to punish those that already have.⁵⁷ In its exclusive economic zone, extending up to 200 nautical miles from its baselines, a state has sovereign rights to natural resources within both the water and the seabed.⁵⁸ A state can extend its sovereign rights to seabed resources up to the limits of its continental shelf but no further than 350 nautical miles from its baselines.⁵⁹

    Beyond the limits of coastal states’ exclusive economic zones are the high seas. On the high seas, vessels of all states enjoy freedom of navigation, of overflight, to lay cables, to construct installations, to fish, and to engage in scientific research.⁶⁰

    Outside of these more general concepts are a couple of special maritime zones, each with its own rights and limitations for coastal states. The first is an international strait, which are “straits ... used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone”; they do not include internal waters.⁶¹ In international straits, vessels (and aircraft) enjoy a right comparable to innocent passage: that of transit passage.⁶² Unlike innocent passage, a state cannot suspend transit passage.⁶³

    UNCLOS further provides special rules for archipelagic states. Archipelagic states are “constituted wholly by one or more archipelagos,” which are defined as “a group of islands, including parts of islands, interconnecting waters[,] and other natural features which are so closely interrelated that ... [they] form an intrinsic geographical, economic[,] and political entity.”⁶⁴ Archipelagic states are permitted to “draw straight archipelagic baselines joining the outermost points of the outermost islands.”⁶⁵ With limited exceptions, these baselines “shall not exceed 100 nautical miles.”⁶⁶ An archipelagic state has sovereignty over the waters within these baselines, which are known as archipelagic waters.⁶⁷ Like with territorial seas, the right of innocent passage applies to archipelagic waters and can be temporarily suspended for security reasons.⁶⁸

    The final relevant provisions of UNCLOS concern ice-covered areas, relation to other international treaties, and amendments to the convention. Article 234 provides that coastal states can enforce domestic pollution laws “in ice-covered areas within the limits of the exclusive economic zone” where the ice creates hazards to navigation and the environment is especially susceptible to pollution damage.⁶⁹ Article 311 governs the convention’s relationship with other international treaties and provides that state parties can make agreements “modifying or suspending” provisions so long as they are not “incompatible with the effective execution of the object and purpose” of UNCLOS.⁷⁰ Finally, UNCLOS provides a mechanism for amendments to the convention. State parties can propose amendments, and UNCLOS shall convene to consider a proposed amendment if more than half of the state parties to the convention reply favorably.⁷¹ An amendment enters into force when the greater of sixty or two-thirds of state parties ratify it, and it only binds those ratifying states.⁷²

B. The U.S.-Canadian Dispute on the Legal Status of the Northwest Passage

1. The Canadian Position

    As the Northwest Passage is contained entirely in the Canadian Arctic, snaking through the islands of Canada’s Arctic Archipelago,⁷³ it should come as no surprise that Canada has a significant interest in the Passage. With increasing fallout from climate change and the return of great power competition, the Canadian Arctic presents an environmental and security vulnerability for Canada, and the establishment of a major maritime trade route through the region, subject to some level of protection from Canadian interference under international law, would only exacerbate this vulnerability.⁷⁴

    Accordingly, on September 10, 1985, just a few years after the adoption of UNCLOS,⁷⁵ Canada drew straight baselines between the outermost islands of the Canadian Arctic Archipelago and announced that the enclosed waters are part of Canada’s internal waters.⁷⁶ In support of the government’s decision, Canada’s Secretary of State for External Affairs cited Canada’s historical control over the claimed waters, security interests, environmental interests, native Inuit interests, and the importance of the decision to the country’s national identity.⁷⁷ The Secretary noted that “[t]he exercise of functional jurisdiction in Arctic waters is essential to Canadian interests. However, it is no substitute for Canada’s full sovereignty over the waters of the Arctic [A]rchipelago.”⁷⁸

    Likely in anticipation of U.S. opposition to the claims, the Secretary expressed his desire to open talks with the United States concerning Arctic cooperation, but stressed that the United States must respect Canadian sovereignty.⁷⁹

2. The U.S. Position

    In opposition to Canada’s claims over the Northwest Passage, the United States asserts that the Northwest Passage is an international strait.⁸⁰ While other states oppose Canada’s claims to the region, the United States has been the most vocal in its opposition.⁸¹

    The United States’ opposition to Canadian sovereignty in Arctic waters is but another bullet point on a lengthy list of U.S. positions in opposition to what it deems “excessive maritime claims.”⁸² The policy of opposition to such claims is based upon U.S. support for the freedom of navigation.⁸³ Freedom of navigation has its roots in the 17th century, beginning with Hugo Grotius, the Dutch jurist who created the concept of mare liberum: the idea that the seas should be free to ships of all states.⁸⁴ At the time, this idea was not so intuitive; Spain and Portugal championed the idea that a state could exercise sovereignty over the high seas in much the same way as over land.⁸⁵

    Centuries later, similarly competing notions would come to a head at UNCLOS. The United States, with its powerful navy, “insisted on free passage through straits, in effect giving straits the same legal status as the international waters of the high seas.”⁸⁶ Faced with opposition from coastal states with straits, who argued for innocent passage in international straits, the United States was forced to compromise, giving birth to transit passage.⁸⁷

    In the wake of UNCLOS, however, U.S. support for the freedom of navigation has been uncompromising and backed by force. Freedom of navigation is vital for U.S. commercial and martial interests.⁸⁸ In support of the freedom of navigation, the United States Navy consistently conducts freedom of navigation operations, whereby the Navy sends warships to transit through waters that other states claim in violation of international law (according to the United States).⁸⁹ As an indication of how seriously the United States takes the freedom of navigation, when challenged on these operations, the United States has not shied away from the use of force.⁹⁰

II. Shaping U.S. Policy

    Contrary to the current U.S. position vis-à-vis the Northwest Passage, it is within the United States’ best interests that Canada is able to close the Passage to maritime traffic at will. While an invitation to maritime traffic in the Passage might confer economic benefits on U.S. carriers, U.S. shippers, and Alaskans, that position also invites environmental degradation in an already fragile region, the presence of hostile militaries in the United States’ most vulnerable approach, and division with an important U.S. ally.

A. Economic

    The chief benefit of opening the Northwest Passage to international traffic is the economic boon provided by a shorter maritime route between the Atlantic and Pacific Oceans. Currently, ships can only transit around the Americas by sailing through the Panama Canal or rounding Cape Horn, the southernmost point of South America.⁹¹ For ships sailing to or from Europe, the opposite coasts of North America, or East Asia, these are expensive detours.⁹² By providing a shorter route, the Northwest Passage could substantially reduce the cost of carriers’ voyages between the Atlantic and Pacific—savings that carriers could then pass on to shippers in the form of lower rates.⁹³ These are the very commercial prospects that drove European explorers to search for the Passage in the first place.⁹⁴

    Carriers and shippers are not the only ones who stand to benefit from a trade route through the Northwest Passage, however. Maritime trade routes support (and practically require) ports along the route, leading to economic development in otherwise remote regions.⁹⁵ The United States stands to benefit from such development in Alaska; the state’s position between the Northwest Passage and Pacific Ocean ensures that most ships traveling along the route will hug Alaska’s northern and western coasts, and thus, likely stop at Alaskan ports.⁹⁶ Beyond bolstering Alaska’s construction and tourism industries, and creating jobs at the ports themselves, increased traffic at Alaskan ports would also give local Alaskans (including indigenous people) better access to global markets.⁹⁷ And yet, such development has its costs, which stand to fall disproportionately on indigenous Alaskans.⁹⁸

    However, the prospect of these economic benefits is severely limited by questions of feasibility. Currently, the Northwest Passage is ice-free (that is, navigable) for only “four to six weeks” out of the year, and scientists do not “expect the Northwest Passage to be free of ice for an extended period of the summer until much later in the century.”⁹⁹ Some years, the Passage may not even open.¹⁰⁰ Even when the “seasonal ice” clears to open the Passage, “multiyear ice” remains, and this ice is hard enough to be “the equivalent of floating steel.”¹⁰¹ These conditions are dangerous even for icebreakers, and much more so for container ships.¹⁰² Such hazards, paired with the Passage’s limited aids to navigation, make accidents all too likely.¹⁰³ Should a ship run into trouble, there is “no infrastructure there to assist them.”¹⁰⁴ The narrow window of navigability, that window’s unpredictability, the hazardous conditions even when the Passage is open, and limited search and rescue capacity severely hamper the economic viability of the Northwest Passage as a shipping route.

B. Environmental

    The establishment of a maritime shipping route through the North American Arctic would negatively impact the region’s environment which, due to climate change, is already fragile.¹⁰⁵ As the Arctic warms, the future of the region’s endemic flora and fauna is increasingly jeopardized. Marine and terrestrial life alike are exposed to increasing temperatures, changing precipitation patterns, and increasing oceanic acidity.¹⁰⁶ While some plants and animals can adapt, for many others, these changes are happening too quickly.¹⁰⁷ Accordingly, the Endangered Species Act and U.S. agencies list over one hundred species of marine mammals, fish, invertebrates, terrestrial mammals, birds, reptiles, and plants as endangered, threatened, or sensitive in Alaska alone (not to speak of the Canadian Arctic); this count includes nine species of whales, two species of seals, one species of sea lions, and four species of turtles as endangered or threatened.¹⁰⁸ Once a species is gone, it is gone forever, and the loss of even one can inflict far-reaching damage in an ecosystem.¹⁰⁹ Humans are not outside the reach of this damage—and the indigenous people of the Arctic, who particularly depend upon the ecosystem to survive, may be especially vulnerable.¹¹⁰

    By opening the Northwest Passage up to shipping, one invites many externalities that negatively impact the local environment. Vessels might dump their ballast water, garbage, or human waste overboard, thereby polluting the water or introducing invasive species.¹¹¹ Oil spills, whether by intentional or accidental discharge, are “among the highest publicized and environmentally damaging disasters worldwide.”¹¹² Their devastating effects on both marine and terrestrial life alike are well known. Beyond spillage and pollution, increased vessel traffic in the Northwest Passage can provide cover for illegal fishing, which deprives local fishermen of their catch and severely depletes fish and their habitat.¹¹³ While Canada could enforce environmental regulations in the Northwest Passage as part of its territorial sea, deterring and punishing these acts as violations of Canadian law,¹¹⁴ no amount of damage control can completely undo such violations and their impacts.¹¹⁵

    Further, there are some environmental threats from shipping that Canada cannot regulate away; no matter how strict the laws or careful the crew, where ships go, such consequences follow. Air pollution is an inevitable consequence of burning fuel, and can “cause respiratory issues, form smog, [and] increase ocean acidity.”¹¹⁶ Vessels’ engines also cause underwater sound pollution, disrupting searches for food and the “breeding, nursing, and migration” of marine mammals and fish even at great distances.¹¹⁷ Such underwater noise can even lead to physical injury and death.¹¹⁸ The most direct cause of marine animal death, however, is from ship-strikes.¹¹⁹ So long as Canada cannot control whether or not vessels can sail through the Northwest Passage, the North American Arctic will be subject to those vessels’ environmental degradations. Both the United States and Canada would, at best, only be able to limit those impacts—and even then, only some.

C. Security

    If the United States opens the Northwest Passage to maritime traffic, it effectively invites its great power adversaries into its vulnerable backyard. The Arctic is home to large deposits of oil, natural gas, and liquid natural gas—the fossil fuels upon which the world relies for energy.¹²⁰ Perhaps more importantly, however, the Arctic contains vast quantities of minerals that are critical to the technologies behind renewable energy, from electric cars to wind turbines.¹²¹ And yet, many Arctic borders are uncertain; Arctic states lay competing claims to exclusive economic zones and continental shelf limits,¹²² which govern resource rights to the sea floor.¹²³ Some of the aforementioned resources exist in contested areas.¹²⁴ As a result, the region is vulnerable to interstate conflict.

    Because of competing claims in the Arctic and the mineral rights those claims confer, the Arctic is a likely arena for the emerging cold war between the West and its Russo-Chinese rivals. Even before Russia’s re-invasion of Ukraine in 2022, the United States began preparing for the reemergence of great power competition in the wake of Russia’s 2014 invasion of Ukraine, the Sino-American trade war, and China’s threats toward Taiwan.¹²⁵ As this rivalry develops, both Russia and China have demonstrated interest in the Arctic. Russia, itself an Arctic state with unrecognized claims in the region, has spent the last two decades militarizing its Arctic territory and undermining U.S. allies’ security in the Arctic.¹²⁶ Russia sees the Arctic as “a new front” in its war on the West, and on this front, Russia’s military presence dwarfs that of the United States and its allies.¹²⁷ Despite China’s distance from the Arctic, “China has declared itself a ‘near-Arctic state’” and joined the Arctic Council as an observer, underlining its interests in the region.¹²⁸ China is increasingly playing an important role in the development of the Russian Arctic,¹²⁹ and the Chinese and Russian militaries have begun to cooperate in the Arctic.¹³⁰ This should be a matter of critical concern for the United States and Canada: the Arctic is North America’s “most vulnerable avenue of approach,” considering the proximity of Russia and the vast disparity between Russian and U.S. or Canadian military assets and infrastructure in the region.¹³¹ The Arctic is, in effect, the back door to the United States—and it is currently wide open.

    Though Russia has displayed its willingness to enter into a conventional interstate war, the primary concern for the United States and Canada in the Arctic should be grey zone threats. Grey zone threats include any of a number of coercive tactics that fall short of warfare, including espionage, sabotage, border incursions, and paramilitary forces.¹³² Russia has already used such tactics in the Arctic against the United States and its allies, from “embedding spies in research institutes” and jamming military GPS systems to using ostensibly civilian vessels to cut undersea cables.¹³³ Perhaps the greatest threat, though, is that of paramilitary forces, the use of which allows a state to launch direct attacks (sometimes even with military units) while maintaining plausible deniability. Russia debuted this tactic when it invaded Ukraine in 2014 and seized Crimea with its “little green men”—conventional military units that had removed any insignias identifying them as Russian soldiers.¹³⁴ China has applied a similar tactic to a maritime context, attacking U.S., Filipino, Malaysian, and Vietnamese ships in the South China Sea with its “little blue men”—a maritime militia of ships ostensibly engaged in commercial fishing but which in fact operate alongside Chinese law enforcement and the Chinese military to achieve Chinese political objectives in disputed waters.¹³⁵

    If the right of transit passage applies to the Northwest Passage, as the United States argues it should, then Canada legally cannot close the Passage to maritime traffic.¹³⁶ The aforementioned grey zone threats, from paramilitaries to saboteurs, would blend in with civilian traffic, as they are designed to maintain plausible deniability or the veneer of civilian activities.¹³⁷ The United States and Canada do not have the Arctic resources or infrastructure to adequately police that threat;¹³⁸ even if they did, threats can and do slip through.¹³⁹ The safer and less resource-intensive route is to deny passage to foreign vessels. As North American defense is a joint operation between the United States and Canada,¹⁴⁰ the United States would have a say in policing actions in the Northwest Passage and determinations of what vessels may transit the Passage. Thus, keeping the Northwest Passage closed to maritime traffic is vital to U.S. security, even if to do so, Canada must be the country with legal authority over the Passage.

D. Diplomatic

    The U.S. position vis-à-vis the Northwest Passage is unnecessarily antagonist to one of the United States’ most important allies. Canada regards its Arctic territories as “fundamental to [its] national identity.”¹⁴¹ U.S. freedom of navigation operations in the Northwest Passage, absent requests to Canada and despite Canada’s claims, have been a source of uproar in Canada’s Parliament and among the Canadian public.¹⁴² And yet, the United States keeps performing such operations—sometimes without even notifying Canada.¹⁴³ With the return of great power competition, the United States cannot afford to alienate one of its most important allies. Further, Russia or China could exploit such division by sailing through the Northwest Passage,¹⁴⁴ in which case Canada’s legal position would prompt a Canadian intervention, while the U.S. legal position would compel U.S. inaction. A united diplomatic front, particularly in the contested Arctic, is critical for U.S. interests.

* * *

    Despite the age-old economic allure of a maritime trade route through the Northwest Passage, the viability of such a route is questionable,¹⁴⁵ and it would only degrade a fragile environment and undermine U.S. security. Further, the U.S. position is antagonistic to one of its most important allies. Accordingly, the United States should reverse its position that the Northwest Passage is an international strait and instead look towards a legal solution that gives Canada the ability to control (and severely limit, if not prohibit) maritime traffic in the Passage. The United States’ important role in North American security would guarantee that, though Canada controls the Passage, the United States would have a say in its management, allowing the United States to protect its own interests in the Arctic.

III. Crafting a Legal Solution

    The United States has several potential ways to achieve the aforementioned policy goals. The United States could recognize the Northwest Passage as archipelagic waters, convene a multilateral treaty, recognize Canada’s claim under existing law, or work with Canada to pass an amendment to UNCLOS that allows for states to draw straight baselines around archipelagos in the Arctic Circle.

A. U.S. Recognition of the Northwest Passage as Archipelagic Waters

    One way the United States could support Canadian sovereignty over the Northwest Passage would be to recognize the Passage as archipelagic waters, justifying Canada’s use of straight baselines. However, this possibility suffers from two fatal flaws: it is legally indefensible and thus depends upon not being challenged, and even if unchallenged, it does not sufficiently grant Canada the ability to control traffic.

    While the islands surrounding the Northwest Passage constitute the Canadian Arctic Archipelago,¹⁴⁶ this is insufficient to designate the Passage as archipelagic waters under UNCLOS. UNCLOS provides that only archipelagic states can designate archipelagic waters and that archipelagic states consist “wholly [of] one or more archipelagos.”¹⁴⁷ Because Canada mostly consists of territory on the North American continent, Canada is not an archipelagic state, and thus cannot justify its straight baselines as archipelagic baselines.¹⁴⁸ Any legal challenge to treatment of the Northwest Passage as archipelagic waters would prevail due to the plain language of Article 46.

    Even if somehow unchallenged, archipelagic waters would not give Canada sufficient authority over the Northwest Passage. Ships maintain the right of innocent passage in archipelagic waters, and Canada would only be able to temporarily suspend that right for security purposes.¹⁴⁹ Canada thus could not prevent ship traffic or, therefore, its immitigable ecological damage. Further, Canada could only deprive grey zone forces of their concealment (civilian traffic) if it had intelligence of a potential attack.¹⁵⁰ Absent that, Canada would be limited to temporarily preventing further attacks by closing the Passage afterwards. Thus, archipelagic waters do not provide Canada with sufficient control to stave off threats to its environment and security.

    In sum, U.S. recognition of the Northwest Passage as archipelagic waters is an illegal and inadequate solution.

B. A Canadian Montreux Convention

    Though maritime sovereignty is predominantly governed by UNCLOS, the United States and Canada can probably seek solutions outside its framework. The United States could broker a multinational treaty analogous to the Montreux Convention that provides Canada with the legal authority to restrict traffic through the Northwest Passage.¹⁵¹

    The Montreux Convention, signed in 1936, allows Turkey certain powers over the straits between the Black and Mediterranean Seas.¹⁵² The ten states party to the convention agreed to limitations on warships’ passage (including tonnage, hours of passage, and notice), a ban on the passage of belligerent vessels, Turkish authority to close the strait to warships when threatened or at war, and Turkish authority to close the strait to hostile commercial vessels when at war.¹⁵³ The treaty remains in force to this day.¹⁵⁴

    While the United States could probably convene a Canadian Montreux Convention for the Northwest Passage, it is not certain that such a convention would be compliant with UNCLOS. UNCLOS does permit parties to sign other treaties concerning maritime sovereignty, but those treaties must not be “incompatible with the effective execution of the object and purpose” of UNCLOS and cannot affect other UNCLOS parties’ rights or obligations under UNCLOS.¹⁵⁵ UNCLOS does not define its object or purpose,¹⁵⁶ and turning to the Montreux Convention’s history is equally unhelpful. The Montreux Convention predates UNCLOS;¹⁵⁷ thus, it was not drafted with compatibility in mind. Further, Turkey is not a party to UNCLOS,¹⁵⁸ so the Montreux Convention’s continued validity does not necessarily imply compatibility. Most importantly, however, UNCLOS provides that it does not affect “the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits.”¹⁵⁹ Thus, while the Montreux Convention itself is compliant with UNCLOS, it is not clear that a future convention would be, as it would not be “long-standing.” At the very least, to avoid interfering with other parties’ rights and obligations under UNCLOS, the provisions of any treaty should be limited to that treaty’s signatories and not purport to bind non-parties. Thus, to make a Canadian Montreux Convention effective, the United States and Canada would need to convince every maritime state to sign on.

    Even if a Canadian Montreux Convention is not preempted by UNCLOS, its terms would not provide Canada with sufficient authority to protect its environment and security. Because Canada would only be able to restrict commercial ships’ passage if at war with their flag state,¹⁶⁰ Canada could do nothing to avoid certain ecological effects and would struggle to prevent grey zone threats for the same reasons as if the Passage constituted archipelagic waters.¹⁶¹ In fact, the Montreux terms would be worse. Canada’s restriction to banning passage of commercial vessels from states at war with Canada will not stop grey zone threats;¹⁶² their unconventional nature falls short of open war, their operations can be shielded by maritime traffic from other states, and they can fly non-belligerent flags.¹⁶³ Thus, any Canadian Montreux Convention would need to give Canada the ability to close the Passage to all traffic at will, whether for environmental or security reasons. This is precisely the power a state enjoys over its internal waters.¹⁶⁴

    While the United States and Canada could pursue a Canadian Montreux Convention to secure Canadian authority over the Northwest Passage, for such a convention to be effective, it would need to grant Canada authority equivalent to that which states have over their internal waters. It is thus simpler to find a way to make the Northwest Passage part of Canada’s internal waters, thereby avoiding questions of incompatibility with UNCLOS and a herculean diplomatic effort to elicit maritime states’ involvement.

C. U.S. Recognition of the Northwest Passage as Internal Canadian Waters

    The United States could recognize the Northwest Passage as part of Canada’s internal waters and deny its status as an international strait.¹⁶⁵ However, while that legal status would give Canada the requisite authority to protect the environment and North American security, the Northwest Passage cannot constitute internal waters under current law;¹⁶⁶ if challenged, Canada’s legal argument would probably fail. Further, the arguments justifying Canada’s claim to the Passage would create precedent contrary to U.S. freedom of navigation interests elsewhere in the world.

    U.S. recognition of the Northwest Passage as Canada’s internal waters would remove the main opposition to Canada’s position, allowing Canada to protect its fragile Arctic environment and North American Arctic security. Because Canada could treat the Passage as internal waters and not as an international strait, it could deny that vessels have a right of innocent or transit passage,¹⁶⁷ giving Canada the ability to limit traffic as it sees fit or ban it altogether. Accordingly, Canada could prevent even the immitigable effects of maritime traffic and could ward off grey zone threats by depriving them of their civilian traffic shield.

    However, any assertion that the Northwest Passage constitutes Canada’s internal waters, and treatment of the Passage as such, is subject to legal challenge;¹⁶⁸ it therefore must be able to prevail. This argument probably cannot.

    While UNCLOS provides that a state may draw straight baselines when “there is a fringe of islands along the coast in its immediate vicinity,” UNCLOS is clear that when drawing straight baselines, they “must not depart to any appreciable extent from the general direction of the coast.”¹⁶⁹ Drawing straight baselines to encompass the Canadian Arctic Archipelago would stretch Canada’s baselines to enclose an additional 550,000 square miles.¹⁷⁰ This is a significant departure from the ordinary shape of Canada’s coast. Further, “waters within archipelagos have historically been treated as territorial waters.”¹⁷¹ UNCLOS’s provision of special powers for archipelagic states in the form of archipelagic waters, in lieu of internal waters,¹⁷² supports the conclusion that UNCLOS does not allow states to draw straight baselines between the islands of an archipelago and designate the waters within as internal waters.

    Canada’s reliance upon Article 234, providing for enforcement of domestic pollution laws in ice-covered areas,¹⁷³ cannot save its argument. Nothing in the article provides for an ability of states in ice-covered areas to draw straight baselines where they otherwise cannot, or designate internal waters in areas that otherwise would not qualify.¹⁷⁴ Instead, Article 234 appears only to extend coastal states’ authority to enforce pollution laws to their exclusive economic zones in ice-covered areas. Article 21 already provides coastal states with the ability to adopt and enforce laws aimed at the “prevention, reduction[,] and control of pollution” in their territorial seas.¹⁷⁵ However, UNCLOS does not provide coastal states with this authority in their contiguous zones or exclusive economic zones.¹⁷⁶ Article 21’s pollution enforcement provision does not grant an ability for states to prevent pollution by banning passage entirely (lest innocent or transit passage be rendered meaningless),¹⁷⁷ and Article 234’s language is similar to that of Article 21,¹⁷⁸ with nothing suggesting it envisions further powers.¹⁷⁹ Thus, Article 234 is best read as an extension of coastal states’ pollution authority from their territorial seas to ice-covered areas within their exclusive economic zones. Accordingly, Article 234 cannot save Canada’s position.

    Further, Canada probably cannot effectively argue that the Northwest Passage is not an international strait. UNCLOS defines an international strait as a “strait[] used for international navigation.”¹⁸⁰ While the strait is not currently used for international navigation due to the ice,¹⁸¹ once that ice melts enough to allow for passage (even if seasonal), it can and will be used for international navigation,¹⁸² absent a successful Canadian claim that the Passage constitutes internal waters. UNCLOS’s carveout for straits with similarly convenient alternates is inapplicable to the Northwest Passage.¹⁸³ Thus, Canada probably cannot successfully argue that the Northwest Passage is not an international strait.

    By recognizing the Northwest Passage as Canadian internal waters under existing law, the United States would be endorsing a broad interpretation of states’ abilities to draw straight baselines contrary to U.S. freedom of navigation interests elsewhere in the world. Other states could follow Canada’s example and claim that the waters within their archipelagos or straits constitute internal waters, thereby empowering those states to restrict or ban U.S. commercial vessels and warships.¹⁸⁴ Even absent judicial resolution in Canada’s favor, by backing the Canadian position, the United States would be precluded from opposing similar straight baselines drawn by other coastal states, lest such inconsistency undermine U.S. credibility.¹⁸⁵ Thus, the United States should pursue a solution more carefully tailored to the Northwest Passage, thereby avoiding infringement of U.S. interests elsewhere.

    In sum, while U.S. recognition of the Northwest Passage as Canadian internal waters under existing law would allow Canada to protect its environment and enhance North American security, a legal defense of that position would likely fail. Further, staking such a position (whether successfully or not) opens the door for other states to draw straight baselines in similar circumstances, impeding U.S. interest in freedom of navigation. However, while the United States cannot change the facts to fit the law, it can change the law to fit the facts.

D. An Arctic Amendment to the United Nations Convention on the Law of the Sea

    The best solution for the United States is to pursue an amendment to UNCLOS that allows for Canada to draw straight baselines around its Arctic Archipelago, thereby enclosing the Northwest Passage in Canada’s internal waters. This solution allows for Canada to protect its Arctic environment and enhances North American security. Unlike mere recognition of Canada’s claims under existing law, a properly drafted amendment would make Canada’s claims legally unassailable. While securing the requisite support for the amendment would be challenging, an environmental pretext could bring maritime states on board.

    As a preliminary matter, the United States cannot propose or vote on an amendment to UNCLOS, as it is not a party to the treaty.¹⁸⁶ Because the United States considers the vast majority of UNCLOS to be customary international law,¹⁸⁷ the United States could ratify the treaty and propose an amendment. The United States could even use its ratification of UNCLOS to secure support for the amendment. Alternatively, Canada could propose the amendment, while the United States uses its vast diplomatic capital to secure support.

    Once passed, an amendment to UNCLOS would accomplish policy objectives while giving Canada’s claims a solid legal foundation. Enclosing the Northwest Passage as internal waters would allow Canada to protect its Arctic environment from even immitigable environmental impacts of vessel traffic and to enhance North American security by depriving grey zone threats of the ability to conceal themselves in civilian maritime traffic.¹⁸⁸ By carefully drafting the amendment, the United States and Canada can ensure its legal applicability to the Northwest Passage, and narrowly tailor the amendment to avoid infringing upon U.S. freedom of navigation interests elsewhere. The amendment should read that, above the Arctic Circle, coastal states can draw straight baselines between the outermost islands in an archipelago, and to the continental mainland if not further from the outermost islands than those islands are from each other, and designate the waters within as internal waters. By limiting the straight baselines to archipelagos within the Arctic Circle and providing the distance restriction, the amendment would apply only to the Canadian Arctic Archipelago, Norwegian Svalbard, Russian Franz Josef Land, Russian Severnaya Zemlya, and the Russian New Siberian Islands.¹⁸⁹ By writing the amendment this way, the United States and Canada can ensure that the Northwest Passage constitutes Canadian internal waters while minimizing the ability for other states to draw similar straight baselines.

    While it may be challenging to secure the requisite support from other UNCLOS parties to pass the amendment, an environmental pretext for the amendment could garner the necessary support. To pass the amendment, the United States and Canada will need up to 111 other states that are party to UNCLOS to ratify it.¹⁹⁰ The amendment will bind only those parties that ratify it,¹⁹¹ so the United States and Canada must seek the agreement of as many maritime states as possible. By presenting the amendment as an environmental measure aimed at allowing Arctic states to protect fragile Arctic ecosystems through limiting or banning maritime traffic, the United States and Canada could secure significant support. In the past, far more drastic measures in the name of environmentalism have garnered widespread support and ratification.¹⁹² Environmental protection is already an important part of UNCLOS’s provisions,¹⁹³ so such a justification would not be out of place. So long as the United States and Canada meet the minimum number of parties necessary for ratification, even if not every maritime state signs, it could reduce future maritime traffic enough to minimize environmental impacts and provide grey zone threats with less concealment. Further, if the United States and Canada introduce such an amendment now, when traversing the Northwest Passage is largely impractical,¹⁹⁴ maritime states might more readily agree to support the amendment since it would not negatively impact their present commerce.

    The two most difficult states to secure will be Russia and China, and gaining their agreement may come at the cost of concessions elsewhere. Russia, for instance, might demand U.S. and Canadian recognition of its claim to sections of the Northeast Passage.¹⁹⁵ However, the amendment in its aforementioned form actually supports Russia’s claims; its application to Severnaya Zemlya and the New Siberian Islands would secure for Russia two of the three sections of the Northeast Passage that it claims as internal waters.¹⁹⁶ Thus, Russia may be inclined to ratify the amendment. Further, the damage of legalizing these Russian claims to U.S. freedom of navigation interests may be negligible. Not only do they constitute miniscule areas,¹⁹⁷ but as the ice retreats north of Russia, ships traversing the Northeast Passage may be able to avoid Russian claims entirely.¹⁹⁸ Securing China would be much more difficult and may involve concessions elsewhere—some of which may be unacceptable for the United States and Canada.

    The passage of an amendment to UNCLOS that secures the Northwest Passage as Canadian internal waters would allow the United States and Canada to protect their arctic environments and enhance North American security. Such an amendment would make Canada’s claims legally unassailable while avoiding substantial precedent for other states to draw similar straight baselines, thus maintaining U.S. freedom of navigation interests. The United States and Canada can secure the requisite support for an amendment through an environmental pretext and, where necessary and palatable, concessions elsewhere.

Conclusion

    Sir John Franklin’s crew, and many explorers before them, gave their lives to fill in the map of the Canadian Arctic and discover the legendary Northwest Passage.¹⁹⁹ Ultimately, they found not a potential route for commerce, but a sea of deadly ice covering a watery grave.²⁰⁰ As climate change increasingly melts the Passage’s ice, their dream of a maritime trade route through the Northwest Passage seems ever closer to a feasible reality, causing the United States and Canada to dispute the Passage’s legal status—and hence, its future as a trade route.²⁰¹

    Not all stakeholders in the Canadian Arctic share those explorers’ dream, however; maritime traffic through the Northwest Passage has implications and consequences beyond commercial profit. While the Passage could reduce shipping costs,²⁰² the same forces clearing the Passage of ice are devastating its environment.²⁰³ Further, the United States and Canada once more face military competition from great power rivals, particularly in the Arctic—North America’s vulnerable back door.²⁰⁴ These rivals have demonstrated an intent and ability to use unconventional tactics that maritime traffic in the Passage would obscure.²⁰⁵ Accordingly, the United States should end its dispute with Canada over the legal status of the Northwest Passage and work with Canada to secure Canadian sovereignty over the region. The best way of securing that sovereignty is through an amendment to UNCLOS that allows Canada to draw straight baselines enclosing the Northwest Passage as Canada’s internal waters.²⁰⁶

    In the end, the trade route envisioned by Sir John Franklin should not come to fruition. Instead, the United States should ensure that it remains confined to its origins in legend, such that to the commercial world, the Canadian Arctic is once more terra incognita.

* J.D. Candidate, 2025, William & Mary Law School; B.A., International Relations, 2021, College of William & Mary. I am incredibly grateful to the William & Mary Law Review staff for their diligence in citechecking and editing this Note. I would also like to thank my Notes Editor, Katy Malloy, for her guidance throughout the research and writing process. My additional thanks go to Professors David Sump and Christopher Abel, who sparked my interest in maritime law and helped me choose this Note’s topic. Finally, I would like to thank my family, without whom none of this would have been possible. Thank you for supporting me in my education and in every other facet of my life.