UNCLOS could help U.S. and Canada resolve long standing dispute over Northwest Passage

The U.S. currently treats UNCLOS as customary international law, which means that where the U.S. can abide by the language of the treaty, it does. In practice, the U.S. recognizes the majority of the treaty as binding due to many years of custom, which renders most of the treaty as international law and therefore binding on all nations. Unfortunately, this does not allow the U.S. to participate in the dispute resolution guidelines laid out in the treaty because these are not recognized as customary international law. The dispute resolution guidelines are relatively new in the course of history, so the only way to benefit from these provisions is to accede to the treaty. As a result, current maritime boundary line disputes in the Arctic with Canada must be dealt with on a bi-lateral level only and not under the dispute resolution mechanisms established under UNCLOS. This is duplicative, wasteful, and lacks predictability of eventual resolution. The tools and mechanisms of UNCLOS appear to be a better way to deal with dispute resolution as it is seen as the standard method of resolution by all signatories.

The U.S. and Canada have long been in dispute over the waters of the Northwest Passage, which Canada claims are internal waters not subject to the conventions of “innocent passage” as established under customary international law and UNCLOS, while the U.S. regards these waters as an international strait for navigational purposes, through which ships can pass without interference by the coastal state (Canada).⁶⁷ The Northwest Passage that crosses over North America would cut shipping routes between ports in Asia and U.S. east coast by nearly 5,000 miles.⁶⁸ Since the U.S. lacks standing under the treaty, it is arguing from a position of weakness with respect to the Northwest Passage and threat to Freedom of Navigation.