Saltwater Neighbors: The Law and Politics of the Canada-U.S. Ocean Relationship

Despite unresolved maritime boundaries and ongoing navigational issues on all three coasts (Atlantic, Pacific, and Arctic), Canada and the United States have maintained a cooperative and peaceful ocean relationship, argued Ted McDorman, professor of law at the University of Victoria, and current Fulbright-Woodrow Wilson Center Visiting Research Chair in Canada-United States Relations. McDorman's presentation, hosted by the Canada Institute on April 10, provided an opportunity for him to discuss his research examining maritime legal disputes between Canada and the United States with U.S. and Canadian government officials, as well as members of the academic community and the private sector.

According to McDorman, maritime disputes have arisen between Canada and the United States as a result of varying interpretations of multilateral and bilateral agreements, including the 1982 United Nations Convention on the Law of the Sea. The Convention, which entered into force on November 16, 1994, serves as the foundational document of modern international ocean law, and established the widely accepted legal regimes for the 12 nautical mile territorial sea, the 200 nautical mile exclusive economic zones, international straits, freedom of navigation, and national authority over the continental shelves that extend beyond 200 nautical miles.

Despite efforts to clarify and define international ocean law, maritime disputes have occurred between Canada and the United States in three areas:

• Overlapping claims to offshore ocean areas (maritime boundaries) and the management of boundary areas (the Gulf of Maine is the only boundary dispute settled between Canada and the United States since the 1920s);
• Differences regarding the existence of rights of navigation through specific ocean areas (Head Harbor Passage, Northwest Passage); and
• Disputes over fisheries that surfaced primarily as a result of extended national fisheries zones (including various disagreements over salmon).

Of these areas, navigational rights remain a particularly contentious issue between Canada and the United States, a fact highlighted by the ongoing legal dispute involving the Northwest Passage. While the United States claims the Northwest Passage is an international strait that can be crossed freely by all vessels, Canada contends that it has sole jurisdiction over the waterway and therefore has the right to deny access to foreign flag vessels. The debate has intensified in recent years because warming Arctic temperatures have begun to melt the ice that has impeded ocean vessels from crossing the Northwest Passage in the past, which could result in the waterway emerging as a lucrative shipping route.

Agreeing to Disagree

Although the Northwest Passage represents one of the high profile ocean disputes between Canada and the United States, it is far from the only one, said McDorman. The Pacific salmon negotiations in the 1980s and 1990s, disputes over maritime boundaries and fisheries in the Gulf of Maine in the 1970s and 1980s, and ongoing questions over Arctic sovereignty are all issues that have attracted considerable media attention and reached the highest levels of government in both Canada and the United States. In most disagreements, the United States argues that its maritime interests are larger than just the Canada-U.S. relationship, whereas the bilateral disputes become issues of nationalism in Canada.

On many occasions, Canada and the United States have simply "agreed to disagree" on altercations arising from international ocean law, opting to take a pragmatic approach to the relationship. McDorman maintained that most disputes over maritime boundaries or navigational rights are often portrayed as "sovereignty" matters in Canada. As a result, the issues tend to have "symbolic significance" and leave little room for negotiating a compromise, since it is considered politically unacceptable to negotiate on issues of "sovereignty."

Consequently, Canadian and U.S. officials are prone to a "fear of resolution"—since resolution involves compromise—when charged with the task of settling ocean disputes arising from international law. This "fear of resolution" is the primary reason that only one ocean dispute between Canada and the United States—the maritime boundary in the Gulf of Maine—has ever been fully resolved in recent years. By leaving international ocean legal matters in dispute, however, disagreements are more likely to occur or resurface in the future. There is a political cost to addressing the issues in both countries and each would rather avoid the costs of compromise, argued McDorman. Additionally, both countries remain hesitant to use third party dispute resolution to settle disagreements.

An Evolving Relationship

Despite occasional disputes, however, the ocean relationship between Canada and the United States remains strong and continues to evolve, particularly in the realm of maritime security issues, said McDorman. Although the United States has historically shown more concern than Canada regarding ocean security, the Canadian government has taken more of a role and interest in maritime security since the events of 9/11. Canada has recently taken steps to increase cross-border naval cooperation by agreeing to expand the North American Aerospace Defense Command Agreement to include sharing intelligence on matters related to maritime surveillance and control. In addition, the Canadian government announced its intention to allocate additional resources to the country's navy and pledged to redesign its internal command structure to respond more effectively to maritime security issues.

Canada's recent collaboration with the United States on ocean security matters is indicative of an ocean relationship between the two countries that can be best described as an "ethos of cooperation," maintained McDorman. Though a "fear of resolution" will likely result in continuing international law disputes between Canada and the United States, the two countries have always managed their ocean relationships without significant confrontation or crisis as a result of continued bilateral cooperation, coordination, and a willingness to simply overlook international law disputes that do arise.

Drafted by Ken Crist.