The official position of the United States government is that the Northwest Passage — a strait between the Atlantic and Pacific Oceans, running through the ice-packed Arctic — is one of the “straits which are used for international navigation” under Article 37 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS III).1 Canada, on the other hand, asserts that the Northwest Passage constitutes internal waters and does not fall under any definition of international strait.2
While the two nations have amicably agreed to disagree on this issue for the past several decades, the melting of Arctic ice and resultant increase in shipping through the Passage could bring the dispute to a head in the near future.3 Any attempt by Canada to limit or restrict navigation through the Passage in the coming years, for example, could plausibly prompt UNCLOS III member states with interests in the Arctic to bring an action against Canada in an international tribunal.4
If the United States’ position were to prevail in this dispute, then ships from any nation would be permitted to conduct “transit passage” through the Northwest Passage without interference.5 If Canada’s position were to prevail, Canada would be able to regulate at will the movement of each ship that traverses the Passage.6 In assessing whether the Passage is an Article 37 strait, a tribunal would likely conduct both a geographic test (evaluating whether the passageway is considered a strait) and a functional test (evaluating whether the passageway is used for international navigation). The Northwest Passage easily qualifies as a strait under the geographic test.7 The dispute is over whether Article 37 requires a functional test at all; and if it does, whether it demands an inquiry into the strait’s historic use or potential use in international navigation.8
This Note is the first attempt to provide support for the position that an inquiry into potential use is the appropriate test to determine whether the Northwest Passage is one of the “straits which are used for international navigation” under the functional test of Article 37. Although this is the official position of the U.S. government — and has been since even before UNCLOS III went into effect9 — there has been no scholarship to date that has attempted to comprehensively articulate this position.10
Part I provides context for the debate by laying out the background of the Northwest Passage, the Corfu Channel11 decision (the predecessor to Article 37), UNCLOS III, and the claims Canada has asserted to exert its influence on ships transiting the Passage. Part II challenges the Canadian position that the functional test of Article 37 calls for an inquiry into historic use. By applying the framework outlined in the Vienna Convention on the Law of Treaties, it lays out support for the position that the correct test is one of potential use. Part III applies Article 37’s geographic and functional tests to the Northwest Passage, finding that the Passage is a strait used for international navigation.
I. Background and Legal Framework
In the decades that followed the first crossing of the Northwest Passage in the early twentieth century, technological advances in transportation, refrigeration, and oil drilling led to an explosion of maritime travel and shipping.12 Coastal states, seeking to capitalize on the rich resources found just off their shores, reacted by staking their territory further out from land than ever before.13
This rush to “enclose the oceans” within territorial boundaries “led to the possibility that many straits of the world — previously open to free navigation — would slip in whole or in part under national jurisdiction.”14 The conflict between states that bordered straits and those that did not led to much of the development of the law of the sea throughout the latter portion of the twentieth century, and culminated in UNCLOS III in 1982.15
A. The Northwest Passage
For hundreds of years, the existence of the Northwest Passage was a mere hypothesis; many explorers died attempting to find a route from the Atlantic Ocean, around the northern reaches of North America, and through to the Pacific Ocean.16 Governments and international corporations all hoped that this new “Silk Road” would efficiently link Western Europe to East Asia,17 yet each attempt to find the passage was met with failure. Finally, in 1906, the Norwegian explorer Roald Amundsen discovered a navigable pathway18 — but the explorer’s ability to make the trip did not mean the Passage was a viable route for commerce.19 It was another sixty-three years before the SS Manhattan, a tanker specially fitted to withstand the Arctic ice, completed the first purely commercial voyage.20 Since then, only a handful of commercial vessels have traversed the Passage, albeit with increasing frequency.21
The international community has been split on the Passage’s legal status since the 1960s.22 The United States and the European Community have argued that the Passage is an international strait,23 while Canada has vehemently contended that the Passage is squarely within Canadian territory.24 To date, however, this question has largely been moot: although the United States asserts it is free to send its vessels through the Passage at will, it has done so without prior consent from Canada only once.25
As a result of the 1988 Agreement of Arctic Cooperation,26 the United States and Canada have avoided conflict over the Passage,27 but its legal status will become increasingly important as it becomes ice free during longer spans of time each year.28 A full evaluation of Article 37’s applicability to the Northwest Passage, however, first requires an understanding of the legal precedent on straits.
B. The Corfu Channel Case
In 1949, the International Court of Justice (ICJ) ruled on a dispute between the United Kingdom and Albania over the legal status of the Corfu Channel following an incident in which two U.K. warships struck Albanian mines.29 One of the central issues was whether the Channel qualified as a “strait used for international navigation.”30 The ICJ held that the Corfu Channel was indeed an international strait, meaning that British ships had the right of “innocent passage” when in the Channel.31 In its holding, the court stated: “[T]he decisive criterion is . . . [the Channel’s] geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation.”32
In Corfu Channel, then, the ICJ concluded that both a geographic test and a functional test applied to the determination of whether the Corfu Channel was an international strait. While the geographic test (whether the strait “connect[s] two parts of the high seas”33) left little room for interpretation, the court’s application of the functional test (whether the strait is “used for international navigation”34) left tremendous uncertainty.35 The subjectivity surrounding the question of what qualifies as an international strait — and many other questions like it — led many of the United Nations member states to call a convention to discuss and codify the law of the sea.36
C. The United Nations Convention on the Law of the Sea
The first iteration of the United Nations Convention on the Law of the Sea (UNCLOS) took place in 1958, with the goal of codifying and clarifying the regime of the law of the sea that had developed up to that time.37 Over the decades following the 1958 Convention,38 member states held two additional conventions: one in 1960,39 and one in 1982.40 The third convention, UNCLOS III, led to the creation and implementation of the agreement that is currently in force.41
Nearly every area of the law of the sea was up for debate at UNCLOS III,42 but the impetus for the convention was the question of how states would define territorial waters.43 Bound up with this question was the question of how straits would be treated. The two issues are inextricably linked: as a nation’s territorial sea expands outward, more and more geographic straits risk coming within the jurisdiction of bordering states, thereby limiting the ability of other states to navigate what had previously been the high seas.44
UNCLOS III ended with several important contributions to the regime of straits. First, it established a new right of transit passage, which allowed international vessels to travel through “straits which are used for international navigation”45 without any interference by the strait-bordering state,46 provided they do so “without delay” and while “refrain[ing] from any activities other than those incident to their normal modes of continuous and expeditious transit.”47 Prior to UNCLOS III, travel through international straits was protected only by the regime of innocent passage; after UNCLOS III, the new transit passage applied to international straits, whereas innocent passage applied to entirely different classes of straits.48 There are significant differences between the two rights. Under innocent passage, for example, carriers may not launch aircraft,49 submarines must travel on the surface,50 and states may heavily regulate the movement and activities of foreign ships.51 With some exceptions, those restrictions do not apply under transit passage.52
Second, UNCLOS III succeeded in setting the limits of the territorial sea at twelve nautical miles53 — a significant achievement, as the previous conventions had failed to resolve this issue.54 Although the breadth of the territorial sea was a contentious topic, this article passed as a result of the bargain for transit passage, ensuring that robust freedom of navigation through straits would be preserved for all nations.55
Third, the Convention succeeded in creating a far more granular regime governing straits, allowing states to more clearly know where transit passage was permitted, and where foreign ships were subject to the requirements of innocent passage. However, although UNCLOS III provides for at least four types of international straits,56 only Article 37 protects the right of transit passage that was so ardently fought for at the Convention.57 This article reads as follows:
This section58 applies to straits which are 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.59
While the article seems straightforward on its face, the member states failed to define international straits more precisely than the ICJ had in Corfu Channel.60 Accordingly, the ambiguity of the phrase “used for international navigation” has continued to engender significant controversy following UNCLOS III, particularly regarding the article’s application to the Northwest Passage. This uncertainty, combined with Canada’s sweeping claims to the Passage, has resulted in a long-running dispute between Canada and the international community.
D. Canadian Claims to Jurisdiction over the Northwest Passage
The Canadian government has, over the past century, inconsistently used a variety of justifications to provide support for the claim that the Arctic Archipelago north of Canada — including the Northwest Passage — should be considered Canadian internal waters. Its justifications have ranged from application of the sector principle,61 claims of historic title,62 and its current position, the usage of straight baselines.63
If a strait meets the requirements of Article 37, however, a claim to sovereignty under a straight baselines theory has no bearing on the rights of vessels transiting the strait: the vessels’ movements are subject to transit passage.64 Thus, even if Canada’s claim to straight baselines encompassing the entire Arctic Archipelago were to succeed in an international tribunal, a finding that the Passage is an Article 37 strait would mean that international-flagged vessels would be able to freely transit the Passage without interference from the Canadian government.
E. Dispute over the Appropriate Test for Article 37 Straits
The key question, then, is whether the Northwest Passage qualifies as a strait used for international navigation under Article 37. The dispute can generally be reduced to two positions. Both sides agree that there is a geographic requirement as to whether a strait falls under Article 37 — whether the strait connects “one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.”65 The disagreement rests on whether there is a functional test as well, and if so, how that test should be applied.
Those who believe that the Northwest Passage is Canadian (the “straits-states” view66) assert that there is a functional test and that the specific question is whether the strait has “a history of use for international maritime traffic.”67 In applying this test to the Northwest Passage, straits-states scholars argue that the Passage fails to meet the threshold for historic use, as nearly all transits of the Northwest Passage were completed with Canada’s “prior authorization . . . either expressly or by implication.”68
The opposing view is that the Northwest Passage is an international strait under Article 37 (the “non-straits-states” view). Within this position are two distinct viewpoints. One holds that there is no functional test whatsoever.69 The other contends that, although there is a functional test, the appropriate question is that of potential use — whether a strait could plausibly be used for international navigation, not whether the strait has historically been used for it.70 Although the two non-straits-states positions seem identical, under the second viewpoint, a strait may still fail the test of potential use if it lacks features that make it appropriate for international navigation (such as requisite depth and width). This Note seeks to lend weight to this second viewpoint and argues that the correct functional test under Article 37 is whether a strait has the potential for use in international navigation.
II. Analysis of Article 37 of UNCLOS III
Evaluating whether the Northwest Passage is an Article 37 strait is an exercise in treaty interpretation. If the disagreement between Canada and other states claiming a right to transit passage were to come to a head, either Canada or another signatory to UNCLOS III could settle the dispute in an international tribunal.71 The decision of the tribunal would be binding on the two states as well as on all other signatories to UNCLOS III.72 In the event the case were decided in favor of Canada’s claim, the decision would almost certainly prevent most signatories to UNCLOS III from transiting the Passage without first obtaining Canada’s consent — and perhaps paying a fee — thereby diminishing or eliminating the positive economic effects associated with the continued opening of the Northwest Passage.73
Given the weight that a decision from an adjudicative body would have, it is important to understand the context within which the tribunal would evaluate Article 37. As UNCLOS III is a United Nations treaty, any tribunal evaluating its contents would refer to the Vienna Convention on the Law of Treaties (VCLT) for interpretive guidance.74 Commonly referred to as the “treaty of treaties,” the VCLT brought together parties who set out to codify customary international law as it pertains to treaty interpretation.75
The VCLT provides clear instructions as to how we should interpret Article 37. Under Article 31 of the VCLT, we should first look at “the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,” along with relevant international law and the subsequent actions of signatories following the conclusion of the treaty.76 In the event that the text after interpretation under Article 31 remains ambiguous, we may turn to Article 32 of the VCLT, which provides recourse to “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning.”77
A. Analysis Under Article 31 of the Vienna Convention: Ordinary Meaning
In accordance with Article 31 of the VCLT, the first step in evaluating UNCLOS III’s Article 37 is to assess its ordinary meaning.78 Although an inquiry into plain meaning79 is a necessary part of this analysis, in cases where the words being scrutinized are ambiguous or unclear — as this Note argues is the case for Article 37 — a tribunal must base its holding on other, contextual forms of analysis.80
1. Plain Meaning. — The functional test of Article 37 can be broken down to two components: “are used” and “international navigation.”81 There are at least three possible readings of “international navigation.”82 First, “international” could refer to any navigation that begins at the port of one nation and ends at the port of another. Second, it might “simply mean that the interest attached to the use of these straits is world wide.”83 Or third, it could mean navigation by vessels from foreign states without the consent or control of bordering states.84 Either of the first two readings supports the conclusion that the Passage is an Article 37 strait.85 But if “international navigation” refers only to navigation by foreign ships exercising their right of transit,86 the question becomes whether Article 37 includes straits that could be used for such travel, or only those used historically.87
The critical phrase, then, is “are used”: these two words form the core of the controversy between Canada and those states that have opposed its claim to the Northwest Passage over the past several decades. The phrase “are used,” when combined with “for international navigation,” comprises the functional test of whether a strait falls under the jurisdiction of Article 37.
The proper interpretation of this phrase, however, is unclear due to the way that it is structured. Because the phrase “straits which are used for international navigation” is in the present tense,88 there is not a strong indication, on the text’s face, as to whether the drafters intended that the test be one of historic or potential use. Since both readings are common in everyday language, we must refer to the context of statements that use the phrase “are used” to determine whether the statement refers to historic or potential use.
To illustrate the necessity for context in interpreting the phrase “are used,” consider the following example: while walking through a forest, one might gesture to a grove of trees and say, “those trees are used for making syrup.” If the listener then looks at the trees and sees taps coming out of them, the listener will assume the speaker was referring to historic (or actual) use. Otherwise, the listener would reasonably believe that the speaker is asserting that type of tree is used for making syrup; in other words, the trees have the potential for use. As both meanings are reasonable, context — here, the presence or absence of taps — is required for the listener to understand what the speaker intended.
When conducting a plain meaning analysis of Article 37, however, we necessarily lack this context. Evaluating Article 37 on its own, one could reasonably argue that the drafters intended that a particular strait must have been historically used for international navigation. One could also argue that the strait must have the potential to be used for international navigation.89 A third and equally plausible interpretation would be that the test should run forward in perpetuity: rather than the test being “frozen in time” when UNCLOS III entered into force, the use of present tense could indicate that the test should always be conducted at the time of a dispute.
Ultimately, the meaning of Article 37 is ambiguous. The use of present tense does not strongly favor the historic-use test, the potential-use test, or even the third “current-use test.” All interpretations are reasonable if the language of Article 37 is read in a vacuum. It was for situations like this that the drafters of the VCLT included context, object and purpose, and subsequent practice as interpretive tools available to the tribunal. Given the lack of clarity in Article 37 following this plain meaning analysis, the interpretation must turn on other methods.
2. Context of Article 37. — Evaluation of the context of a treaty provision in accordance with Article 31 of the Vienna Convention is a variant on the textualist inquiry.90 Specifically, the purpose of a contextual analysis under Article 31 is to “ensure that the meaning ascribed to the treaty clause does not contradict the meaning that other clauses of the same treaty may possess, so that the treaty does not prescribe mutually contradictory outcomes” or “undermine[] the meaning of another clause in the same treaty.”91
A reading of Article 37 where the functional test is one of historic use would directly undermine Article 22 of UNCLOS III. This clause, which establishes how states should “designat[e] sea lanes” and prescribe “traffic separation schemes” within the territorial sea, instructs states to take into account “any channels customarily used for international navigation.”92 Under the straits-states position, “customarily” should be implicitly read into the phrase “straits used for international navigation” (effectively reading as “straits customarily used for international navigation”). However, if this term were to be implied in the language of Article 37, it would render the word “customarily” in Article 22 completely meaningless. In light of the canon against surplusage,93 a contextual reading of Article 37 suggests that the drafters did not intend the functional test of Article 37 to be one of historic use.94
3. Object and Purpose of UNCLOS III. — The object and purpose of a treaty “refers to the rationale of the treaty, its general design; it refers to reasons for which States-parties have adopted the relevant treaty and the aim they desire to achieve through it.”95 In the face of ambiguity as to an article’s meaning, a tribunal would seek to arrive at an outcome in line with the “aims of the treaty.”96 The tribunal’s inquiry would include an evaluation of the text of the treaty, “including its preamble, and the general design of the treaty.”97
The preamble to UNCLOS III lays bare the tensions that brought about the Convention:
The State Parties to this Convention, . . . [r]ecognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources . . . [h]ave agreed as follows . . . .98
There is an inherent tension between the dual aims of protection of national sovereignty and promotion of efficient utilization of the seas99 — both explicit in the Convention’s preamble.100 UNCLOS III was thus carefully constructed so as to protect both interests.
The dual creation of a twelve-mile territorial sea and a regime of transit passage through international straits represents the parties’ clearest attempt to resolve this tension: a wide territorial sea protects national sovereignty, while the regime of transit passage promotes the efficient utilization of the seas. Recall that, prior to UNCLOS III, the limit to a country’s territorial sea, according to customary international law, was a mere three nautical miles.101 There was also only partial protection for travel through international straits following UNCLOS I, as the treaty’s guarantee of innocent passage to international-flagged vessels allowed for strict limitations on both military and commercial travel.102
At UNCLOS III, there was a strong push to expand the territorial sea — but states were also concerned about the effect that this expansion would have on transit through straits. After all, if the territorial sea were measured at twelve miles, then straits of fewer than twenty-four nautical miles in width103 could potentially be closed off to unrestricted international travel. This approach would be favorable to national sovereignty, but at the cost of severely limiting utilization of the seas. In order to find an agreeable compromise, the states struck the central bargain of UNCLOS III: a twelve-mile territorial sea would be approved only if unimpeded passage through international straits were also guaranteed.104
Because the terms of the UNCLOS III bargain were unprecedented, understanding that bargain’s significance requires close attention to its historical context. Previous attempts at establishing so large a territorial sea had failed in a matter of weeks at UNCLOS II;105 even more striking, the regime of transit passage did not even exist as a theoretical concept before UNCLOS III.106 That the Convention invented an entirely new regime of passage through straits to preserve freedom of navigation points to the member states’ desire to hold this right paramount. Given the unambiguous twelve-mile territorial sea afforded to coastal states, it is implausible that the member states would intend for any ambiguity in wording on the other side of that bargain — in a right intended to preserve freedom of navigation — to be resolved in a manner that would severely restrict freedom of navigation.
The consequences of this reading are stark when considering the specific case of Canada and the Northwest Passage. Canada’s territorial sea is one of the largest in the world, with thousands of miles of coastline. At the same time, the Northwest Passage has the potential to become one of the most economically significant straits in the world as Arctic ice continues to recede.107 Considering the object and purpose of the Convention, it would be counterintuitive to construe the ambiguity in Article 37 in a manner that potentially closes off the Northwest Passage to all international travel, while simultaneously granting Canada exclusive rights to regulate all commercial activity in the Passage (on top of its already immense territorial sea). Such a reading of Article 37 clearly flies in the face of the central bargain of the Convention, struck to strengthen national sovereignty while preserving freedom of navigation — not at the expense of freedom of navigation.
An additional concern associated with the historic-use test is the gamesmanship that would undoubtedly result if states were able to influence the outcome of the test by their actions.108 Since a central purpose of UNCLOS III was to ensure the “maintenance of peace,”109 a tribunal considering the Convention’s object and purpose should read the functional test in such a way as to minimize the risk of acrimony and instability among states. As a test whose application is not impacted by states’ actions, the potential-use test far outperforms the historic-use test in this regard.
4. Subsequent Practice. — An inquiry into the subsequent practice of a treaty is not an evaluation of “practice per se but practice establishing agreement, whether explicit or implicit.”110 This test is not particularly useful for the assessment of whether the historic-use test or the potential-use test is the correct interpretation of Article 37, as the narrow nature of this question only applies to a handful of straits in the world. The 1988 Agreement of Arctic Cooperation has successfully defused the issue thus far as it pertains to the Northwest Passage, in that it requires the United States to obtain Canada’s consent prior to sending icebreakers through the Passage.111 By agreement, however, this requirement affects neither Canada’s claim that the Northwest Passage is its internal waters, nor the United States’ position that the Northwest Passage is a strait used for international navigation.112
Ultimately, while the text of Article 37 is ambiguous and the subsequent practice uninformative, the context of Article 37 and the object and purpose of UNCLOS III make clear that “straits which are used for international navigation” refers to all straits that have the potential for use in international navigation — including the Northwest Passage.
B. Analysis Under Article 32 of the Vienna Convention: Supplementary Means of Interpretation
Under Article 32 of the VCLT, if the meaning of the treaty remains “ambiguous or obscure”113 after the Article 31 inquiry into ordinary meaning, then we may begin an inquiry into “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion.”114 Although an analysis under Article 31 indicates that the potential-use test is the correct interpretation of UNCLOS III’s Article 37, an inquiry into preparatory work can further confirm the Article 31 analysis of ordinary meaning.115
The minutes of UNCLOS III, spanning the eleven sessions from 1973 to 1982, clearly show the differing factions that emerged over the course of the Convention. The aforementioned tensions between sovereignty and freedom of navigation were clear throughout: on one hand, the “straits states” sought to maximize their rights and ability to regulate nearby straits; on the other, the “non-straits states” sought to preserve freedom of navigation through straits.116
As representatives of a straits state, the Canadian delegation made a concerted push to include the historic-use test within Article 37 in the first two sessions of the Convention. First, during a discussion on straits, the Canadian delegate emphasized Canada’s position, stating that, “in defining an international strait one must consider . . . that it must be a strait that had traditionally been used for international navigation.”117 Then, during the Convention’s second session, multiple delegations submitted drafts of the articles pertaining to international straits.118 Part of Canada’s submission included a proposal that the definition for an international strait include the requirement that the strait “[h]as traditionally been used for international navigation.”119
At the conclusion of the second session, the member states drafted a working paper to “reflect in generally acceptable formulations the main trends which have emerged from the proposals submitted.”120 At this point, it appears Canada had been successful in its efforts, as this working paper included Canada’s definition of an international strait: that an international strait “is a natural passage between land formations which . . . [h]as traditionally been used for international navigation.”121 Although it is important to note that the working paper was meant to be neither binding on nor reflective of the majority viewpoint of the parties in 1974,122 the working paper was the baseline from which the member states began discussions at the third session in 1975.123
Despite the inclusion of the historic-use test in this working paper, the member states opted to not include this language in future versions of what would eventually become Article 37.124 This shift from inclusion to exclusion is evidence that member states evaluated the merits of this position and affirmatively chose to remove it. Had the historic-use test never been included in a draft of the articles at all, then perhaps one could argue that this position represented the will of the member states despite it not being explicitly spelled out. After all, as the ICJ has stated, “[t]he fact that a particular proposal is not adopted by an international organ does not necessarily carry with it the inference that a collective pronouncement is made in a sense opposite to that proposed.”125
However, here we have a case of the historic-use test being adopted in a draft, then removed — which is meaningfully different from the scenario contemplated by the ICJ. This distinct step of removing the historic-use test clearly indicates that the parties did not intend to be bound by it when evaluating whether a strait should be classified as used for international navigation, lending further support to the contention that the member states intended instead for a potential-use test to apply to Article 37.
C. Responses to Arguments from Outside the Vienna Convention’s Interpretive Framework
1. Flaws in Argument that Corfu Channel Should Be the Default Interpretation. — Some scholars contend that, because the meaning of Article 37 is contested, the construing tribunal should defer to the holding in Corfu Channel.126 There are two major flaws with this position.
First, this argument misses the central point that the Convention served to expand upon and supplant customary international law, rather than to merely codify what was already in existence. The delegates to UNCLOS III were fully aware of the holding of Corfu Channel127 and intended this Convention to take the place of previous ICJ decisions, rather than be bound by them.128 In the event that non-straits states believed that the ambiguous wording of Article 37 meant that it would be read in the manner most favorable to straits states, then it seems highly unlikely they would have ever agreed to this wording of the article without some form of dialogue (which would have been reflected in the Convention’s minutes). The position that the presence of ambiguity in Article 37 means that “existing customary international law must be relied on, mainly as interpreted and applied in the Corfu Channel case of 1949”129 fails to account for the central purpose of UNCLOS III in updating the law of the sea: to reconcile the tension between expansions in territorial waters and maintenance of freedom of navigation.
A second problem with copy-pasting Corfu Channel onto any application of Article 37 is the narrow nature of the Corfu Channel holding: the ICJ held that the Corfu Channel was an international strait, but the court did not hold that all international straits must look precisely like the Corfu Channel.130 The unsuitability of the Corfu Channel analysis to the Northwest Passage becomes starker when comparing the differences between the two straits. Geographically and functionally, the two straits are inverses of each other: whereas the Corfu Channel is a strait of convenience with long historic use, the Northwest Passage is a strait of necessity with limited historic use.131
The holding of Corfu Channel was written in order to emphasize that the Corfu Channel, specifically, was a strait used for international navigation, even though there was another route available. The ICJ never ruled on the logically opposite situation — where a strait is one of necessity but has had limited historic use — such as the Northwest Passage. It would thus be illogical to attempt to apply Corfu Channel’s reasoning to the Northwest Passage.
2. Flaws in the Argument that Volume of Scholarship Lends Weight to Historic-Use Test. — Some straits-states scholars contend that the number of articles published in support of the historic-use test gives the position strength.132 It is wise to view this claim with a degree of skepticism, as a relatively high volume of supporting literature does not necessarily correlate with an argument’s strength. This is particularly the case here since, as Canada has the most to lose when it comes to control of the Passage, those who hold the straits-states view have the strongest incentive to write in support of their position.133 In any case, any tribunal reading into the meaning of Article 37 must do so based off the bargain struck at the Convention, not on what academics supporting the straits-states position have advocated for in the intervening decades.
III. Application of Article 37 to the Northwest Passage
Now that we have established the appropriate functional test to determine whether a strait falls under Article 37, we may conduct our specific inquiry into the status of the Northwest Passage. As previously noted, in order to be considered an Article 37 strait, a given strait must pass both geographic and functional tests.
The Northwest Passage passes the geographic test: it is certainly a strait that comports with the geographic description in Article 37. Recall that Article 37 states that an international strait connects “one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.”134 As the Passage connects the Atlantic and Pacific Oceans — both squarely within the definition of “high seas” — the Passage satisfies the geographic test.135
As established in Part II, the appropriate inquiry to determine whether a strait passes the functional test is one of potential use: Does the strait have the potential to be used in international navigation? Considering that international shipping through the Passage is currently taking place, has increased exponentially in the past decade,136 and is expected to continue to do so, there is no question that the Passage would pass the potential-use test. There is hardly better evidence for the potential of something to occur than the fact that it is currently occurring.
Conclusion
It is evident that potential use is the correct standard for Article 37’s functional test. Evaluation of the ordinary meaning of Article 37, context of the article within the treaty, object and purpose of UNCLOS III, and preparatory work of the Convention all point to the potential-use test as being the appropriate test of whether a given strait should fall under Article 37. The Northwest Passage passes both the geographic and functional tests of Article 37, given that it joins the Atlantic and the Pacific and is currently being used for international navigation. Accordingly, if an international tribunal were to evaluate the Northwest Passage’s legal status, it should find the Passage to be a strait used for international navigation under Article 37 of UNCLOS III.