Pic: Ice-breakers traversing the Franklin Strait, an Arctic waterway in Northern Canada’s territory of Nunavut.

A long-running dispute between Canada and the United States over sovereignty of the Northwest Passage is one of numerous tensions being heightened by the climate crisis. Global Insight explains how international law can help mitigate the risks.

When United States Secretary of State Mike Pompeo used a speech at an Arctic Council ministerial meeting in May 2019 to describe Canada’s claim to the Northwest Passage as ‘illegitimate’, his comments reignited a long-running Canada–US dispute about the Northwest Passage, the sea route to the Pacific Ocean through the Arctic Ocean.

Canada argues that the waters around the Arctic Archipelago, through which the Northwest Passage runs, are an internal waterway and under Canada’s legal jurisdiction. The US believes them to be an international strait, open to all vessels with no need to seek Canada’s permission – a view shared by the European Union.

The two neighbours signed the Canada–US Arctic Cooperation Agreement in 1988, by which the US agreed to ask Canada’s permission to transit in the region, while both parties maintained their respective positions on sovereignty of the Northwest Passage.

The region’s changing climate has exacerbated tensions. With ice melting earlier each year and the water open for increasing periods of time, routes previously unnavigable have become traversable, enhancing the Northwest Passage’s viability as a commercial shipping route. Gavin Giles QC, a partner at Canadian law firm McInnes Cooper, explains that as a potential trade route from the Far East to Northwestern Europe, the Northwest Passage could offer substantially reduced voyage times compared to the Panama Canal and Cape Horn.

The physical transformation of the Northwest Passage means the prospect of increased traffic along it, including tourist vessels. For the indigenous Inuit, this brings potential benefits but also concerns. Inuit communities note, for example, the harmful effects that waste dumped by ships or an oil spill could have for them and the wider ecosystem.

Steven Cooper is a partner at Cooper Regel – a member of Masuch Law – and a past Chair of the IBA Indigenous Peoples Committee. He often visits the Northwest Passage through his work. Cooper says that these communities ‘are only just starting to recover from the first tentative colonial encroachment which started 150 years ago. They are now being subjected to an assault by nature created by humans. The next insult causing further injury would be the introduction of commercial shipping in the Northwest Passage.’

‘Placing the Northwest Passage outside national jurisdiction risks leading to a free-for-all, unless a proper regulatory framework is put in place,’ says Carl Söderbergh, Director of Policy & Communications at Minority Rights Group International. Considering the waters around the Arctic Archipelago as international also ‘risks weakening current indigenous governance structures, as these are generally operating within national legal frameworks and with national governments answerable to them,’ he adds.

Kevin O’Callaghan, a partner at Fasken and leader of the firm’s Indigenous Law practice, believes the Northwest Passage is unlikely to be considered an international strait, ‘given the relatively infrequent number of transits on the record, and the fact that most countries still seek consent from Canada prior to passage. The Northwest Passage also does not meet the functional test from the Corfu Channel case, which is used to determine international navigation.’

International agreements and regulations covering the Arctic may go some way to resolve the question of sovereignty and to protect indigenous communities. Here, multiple regimes of international law intersect, including human rights law, the Polar Code concerning shipping regulations and the work of the Arctic Council, an intergovernmental forum.

‘Ultimately, the efficacy [of international law] depends on the willingness of the international community to abide by it,’ says Giles. ‘And the US has signalled no such intention, at least insofar as UNCLOS is concerned.’

Enter China and Russia

For Sherri Goodman, Senior Fellow at the Wilson Center’s Environmental Change and Security Program and Polar Institute, the Canada–US debate over sovereignty in the Northwest Passage is ‘more a disagreement over the legal interpretation’.

Perhaps more pressing is a growing problem elsewhere in the Arctic. ‘What is changing is that the ice [is] at its lowest extent in recent history,’ says Goodman. ‘It’s particularly retreating along the shallow coast of Russia, which is a potential viable route from Asia to Europe.’ This is the Northern Sea Route (NSR) and while it’s not yet a fully commercial enterprise, Goodman believes its viability will increase in a similar fashion to that of the Northwest Passage.

Russian President Vladimir Putin has strongly signalled Russia’s intent in the Russian Arctic, particularly along the NSR. Putin has indicated that by 2024 the route could ship some 80 million tons of goods, a substantial increase on the approximate 29 million tons shipped through the Arctic in 2019.

There have also been suggestions that the NSR could become part of China’s 21st century Maritime Silk Road, part of the Belt and Road Initiative. ‘Russia derives a significant portion of GDP from Arctic activities,’ explains Goodman. ‘The Arctic is a growth area for Russia; Putin has given Arctic shipping a mandate. A lot of Western shippers don’t see this [plan] as too realistic. But Putin is moving forward with the shipping route.’

Pushed to conflict

Across the continent of Africa, the effects of the climate emergency can be clearly seen. For example, the changing climate alters the physical and chemical properties of seawater, affecting fish stocks. ‘While the depletion of ocean fishery stocks is a multifaceted problem, the effect of climate change on these stocks cannot be overruled,’ explains Justin Truter, Head of Environmental Law at Werksmans Attorneys.

Off the coast of Somalia, the depletion of fish stocks has deprived the country’s fishermen of what was once one of the world’s richest fish stock regions. Increased fishing by boats from other countries is part of the problem too, but ‘one cannot ignore the impetus of climate change in this equation,’ believes Bronwyn Parker, a senior associate at Werksmans.

One consequence of the depletion of fish stocks was an upsurge in Somali piracy. While the situation has improved – the International Maritime Bureau, a specialised division of the International Chamber of Commerce, found Somalia had no reports of piracy-related incidents from January to September 2019 – the Bureau noted that the potential for piracy remains and ship owners were advised to be cautious in the area.

‘Users of this coastal water have responded by adapting [to the piracy], opting for heavy militarisation of shipping vessels,’ says Truter. ‘This, however, does not address the root of the problem of piracy. The geopolitical strategy thus being followed is one of militarisation and not investigation and response.’

In Nigeria, semi-nomadic herders – or pastoralists – have been migrating south in search of pasture. This has brought them into conflict with local farmers over claims of crop damage, encroachment on grazing areas and the blockage of watering points.

This conflict claimed over 2,500 lives between January and May 2018 alone, according to data from global non-profit Synergos. The migration of the herders is driven by an array of factors, including human and environmental issues. The UN predicts Nigeria’s fast-growing population will be larger than that of the US by 2050, and Nigeria is also suffering an insurgency by the extremist group Boko Haram in its northeast, which has encouraged migration from the region to other parts of Nigeria. The climate emergency has caused desertification and reduced – alongside urbanisation and industrialisation – the amount of arable land in the country, another key factor driving the movement of the pastoralists.

Responses to the farmer–herdsman conflict include Benue State’s Anti-Open Grazing Law and Nigeria’s National Livestock Transformation Plan, which is a multi-state initiative designed to develop the country’s livestock sector. Adewale Ajadi, Country Director for Nigeria at Synergos, says that although the Transformation Plan is being deployed, ‘there will be a need for greater alignment between Federal and State governments. Most importantly, local governments will have to take central stage as they are responsible for “rural lands”.’

Water crisis

The Indus river system – made up of the Indus river and five tributaries – flows through India and along the length of Pakistan. As India and Pakistan are agrarian economies – where agriculture forms a significant part of GDP – both countries naturally view any threat to the crucial resource of water as a huge concern.

Following the India–Pakistan partition in 1947, disputes arose relating to water sharing between the two nations. The Indus Water Treaty (IWT), signed in 1960 and arbitrated by the World Bank, did much to mitigate the tensions. But the IWT’s ability to mediate water sharing between the two countries has been jeopardised by the climate emergency.

The source of the Indus river system is in the Himalayan glaciers, which are melting at increased rates, leading to flooding along the flow of the rivers. The changing climate has also altered monsoon patterns, resulting in less overall rainfall in both India and Pakistan, with consequences for water supply.

Arjun Krishnamoorthy, a senior associate at J Sagar Associates in India, explains that the IWT does not contain definitive clauses to circumvent or resolve issues arising from the climate emergency. However, ‘climate change has politicised the question of the sharing of the waters’, which has added to the ‘already simmering distrust between the nations’.

‘Both countries have seen continuous disagreement in relation to the IWT, following the construction of various dams across the Indus River System, to provide for the storage of water for future uses, a consequence of climate change,’ adds Sana Afraz, an associate at J Sagar Associates.

The IWT may need updating to resolve conflicts over water sharing. International organisations could play the role of arbiters while the two nations consider a re-negotiation of the IWT, suggests Krishnamoorthy.

Dr Naho Mirumachi is a senior lecturer at King’s College London and author of Transboundary Water Politics in the Developing World. For her, the climate crisis is an ‘added factor’ contributing to tensions over shared rivers. ‘A lot of the tension… is driven by other factors like economic development and the expansion of irrigation schemes or the development of dams for hydropower or multipurpose dams,’ she says.

The latter is playing out in East Africa, where in 2011 Ethiopia announced its ambitions to build the Grand Ethiopian Renaissance Dam (GERD), a $4bn project with a planned completion date of 2023. With a projected capacity of over 6,000 megawatts, it’s an attempt to support Ethiopia’s developing economy.

The GERD will be situated on the Blue Nile River, responsible for a significant portion of the Nile River water relied upon by Ethiopia’s neighbours, Egypt and Sudan. Both countries have concerns about how the GERD project will affect them.

Egypt is concerned that as the dam is filled, it will temporarily reduce the water available to Egypt through the Nile River. This will have negative consequences for Egypt’s own hydropower capacity and agricultural production, for example.

‘Egypt, through its economic and technological capacity to build dams and to expand irrigation, has been able to control the major share of the water flow,’ explains Mirumachi. ‘What the GERD does is change that dynamic in a very distinct way: for the first time an upstream government has decided to build a dam that will change the flows of water.’

Egypt and Ethiopia have specifically disputed the speed at which the GERD is filled. Ethiopia argues for complete filling within four years of completion, while Egypt says seven, with adjustments made for rainfall. Egypt hopes that if the GERD is filled more gradually, the impact on them as a downstream state will be reduced.

Climate breakdown could add to the challenges in resolving the crisis. For example, some estimate that changes in the climate could result in a 50 per cent increase in flow variation for the Nile River Basin, leading to droughts some years and river flooding in others. This is worrying for all countries involved.

However, the climate models are not in agreement in East Africa, notes Mirumachi. ‘They don’t know whether it’s going to get drier or wetter. There are some predictions that say it’ll get wetter, so it’s not the fact that water is scarce that people are competing over it; rather, it’s because there are these national ambitions to develop the economy, there are national ambitions to maintain agricultural production for a regional market, or for an export market.’

Still, the dispute around the GERD ‘showcases the importance of water to geopolitics,’ says Wendy Wang, Of Counsel at Best Best & Krieger.

Talks aiming to resolve the tensions between the three countries resumed in late 2019 following mediation by the US, which invited the three sides to Washington, DC, with representation from the World Bank present. The talks ‘provide further opportunity for the countries to utilise all tools to formulate a solution that will work for all parties,’ says Wang.

Mirumachi says there’s a track record of international organisations becoming involved in mediation where two or more states share river basins. ‘It’s hard to find a river basin in the developing world, for example, that has not had donor agency or UN or World Bank funding or even regional bank funding to support these initiatives,’ she says. ‘Whether that has proven useful in that it’s provided better, more effective water basin management is a different question.’

Defusing geopolitics

International legal frameworks carry legitimacy and often reflect decades of cooperation and consultation. They can play a key role in resolving such disputes and may be called upon – and are likely to be revaluated and updated – as the climate emergency deepens.

For example, the UN Economic Commission for Europe’s Water Convention entered into force in 1996 and requires states to ‘prevent, control and reduce transboundary impact, use transboundary waters in a reasonable and equitable way, and ensure their sustainable management,’ says Mirumachi. ‘There are plenty of tools, soft law and international water law principles that can be applied [to disputes over water] but the question is about the political will to actually use and to implement them.’

While UNCLOS is specifically concerned with governing the law of the sea and may not be perfect, for Federica D’Alessandra, Executive Director at the Oxford Programme on International Peace and Security, it’s an example of how the ‘international community can create frameworks for cooperative action, or at least limit the damage of non-cooperative action’.

‘By including dispute-resolution mechanisms in framework agreements, intergovernmental organisations like the UN can productively expand into new or emerging areas of global governance,’ says D’Alessandra, who is also Co-Chair of the IBA Human Rights Law Committee.

She warns, however, that flashpoints like the issues of sovereignty in the Arctic region can’t be seen in isolation. ‘They have to be seen as part and parcel of a broader sea change in the way previously established rules of global order are being challenged,’ says D’Alessandra. ‘The current international climate is, in this sense, exacerbating disputes, including around the Arctic.’

Alvaro Rodrigo Castellanos Howell, Vice-Chair of the IBA Poverty and Social Development Committee and a partner at Rodriguez Aguilar Castellanos Solares y Alvarado, believes we must not only comprehend how the causes of the climate crisis can be tackled, but view the situation as a ‘global challenge’ and promote international regulations – both hard and soft law. ‘In our day-to-day practice, we should support clients in conducting due diligence and in complying with self-imposed standards in order to verify that not only is their own conduct compliant with the highest standards we can find in other jurisdictions, but also to require companies in their “chain of production” to do the same,’ he says.

Ultimately, ‘only broad partnerships that bring together the sovereign and non-sovereign, as well as private and public entities, around rights-centred approaches, and in fulfilment of international human rights standards, can offer true solutions to these crises,’ says D’Alessandra.

Simon Fuller is Managing Editor at the IBA and can be contacted at simon.fuller@int-bar.org