• The Northwest Passage makes up a big part of Canada's claim to the Arctic. Here are some of the most possible routes through. (Photo: NASA)

The turf war over the Arctic isn’t a war at all, according to Michael Byers, international lawyer focusing on issues of Arctic sovereignty, climate change, and Canadian foreign and defence policy.

The Arctic, which is believed to contain up to one-quarter of the world’s undiscovered energy resources, has been in the spotlight of late following the find of HMS Erebus from the missing 1845 Franklin Expedition. The find, by a Canadian-complete team has prompted speculations and cheers that it may have furthered Canada’s arctic claim and standings. But Byers, who holds a Canada Research Chair in Global Politics and International Law says that isn’t the case at all.

Here’s what he had to say.

There is no "Arctic claim" as such. 

Sir John Franklin contributed to Arctic sovereignty mainly by the failure of his expedition, which prompted the largest search operation of its time. Dozens of ships sailed into the Arctic Archipelago, discovering and claiming thousands of islands for Britain. In 1880, Britain transferred the islands to Canada. Their status as Canadian territory is uncontested.

The legal status of the waters between the islands only became an issue in 1969, when the United States sent an ice-strengthened oil tanker through without seeking Canada’s permission. Canada granted permission anyway, knowing that consensual voyages cannot undermine a coastal state’s claims.

In 1985, the United States sent an icebreaker through the Northwest Passage without seeking permission. Canada once again granted permission anyway, and then drew so-called “straight baselines” around the outer headlands of the archipelago. Waters within straight baselines are considered “internal waters” that can only be entered with the permission of the coastal country.

However, straight baselines cannot be used to close off an existing “international strait” – a route used for international navigation that vessels from any country have the right to sail through. 

The United States takes the position that the Northwest Passage was an international strait in 1985, and therefore remains so. As a result, the Northwest Passage dispute turns on the status of the waters as of that year. 

Actions taken by the US and Canada after 1985 can have no effect on the strength of their legal claims – which is why the discovery of the HMS Erebus did not strengthen Canada’s position concerning the legal status of the Northwest Passage.

The Franklin discovery was of enormous historical importance and I wouldn’t want to downplay that at all, but it doesn’t contribute to Canada’s Northwest Passage claim.