The Limits of International Law

Virtually every land region of the earth's territory is governed by one framework: that of the sovereign nation-state. In contrast, most regions of the earth's waters are apportioned into one of two opposed frameworks standardized by international law: “internal waters” or “high seas” (the latter of which are also known as “international waters,” or, in the case of narrow corridors like the Northwest Passage, “international straits”). Much like landed territory, waters designated “internal” permit a nation full sovereignty and control. For instance, the Nelson River is unavailable to Chinese ships to transit, unless Canada should grant an exception. By contrast, waters designated as an “international strait” are effectively portions of the high seas over which no adjacent nation has the authority to prevent passage of foreign vessels (United Nations, 1982: Part II, Sec. 3, Art. 19). For example, the Strait of Tiran is bordered by Egypt and Saudi Arabia, and Egypt's 1967 decision to close it off helped to precipitate a war that led to its reopening.Footnote ²

Naturally, states whose landed territory abuts sea lanes covet the ability to restrict those ships, much as they might control vehicle or air traffic entering their land borders. Thus, they prefer an expansive definition of “internal waters.” In contrast, states with the capacity to travel by sea prefer that their ships face as few restrictions as possible and thus prefer a wide application of the “international strait” regime. These two categories form the legal contours of the battle over the Northwest Passage. However, the Passage—for independent reasons—does not easily fit into either category. We begin with the Canadian claim of internal waters.

The category of internal waters includes all waters within a state's landed territory. When a state's coastline is rough and uneven and the boundaries jagged, international law permits the state to delineate a smoother and more easily mappable boundary by drawing straight baselines between two points, often the furthest edges of the coastlines or outlying islands. The state thus encloses a small portion of the sea within its boundaries. A Canadian example is the enclosure of the jagged fjords on the west side of Vancouver Island.

In 1985, Canada responded to an American provocation by drawing straight baselines around its Arctic archipelago. Its goal was to buttress its claim to the Northwest Passage as “internal waters.” Many experts believe that this geographical claim is sound (Coates et al., Reference Coates, Lackenbauer, Morrison and Poelzer2008: 135; Nolin, Reference Nolin2017: 345–48; Pharand, Reference Pharand2007: 36–37, 44). However, one cannot help but note that the baseline at the west end of the Northwest Passage is over 100 miles long, belying the presumed aim of baselines to connect a succession of closely linked peninsulas or islands. What is more, straight baselines typically close off an area of sea that hugs the coast, thus allowing ships to continue their journey rerouted only slightly further from—but still parallel to—the coast. By contrast, Canada's straight baselines internalize a channel that runs perpendicular to the coastline, thus rerouting ships to an entirely different region of the globe.

Beyond geography, another important requirement of internal waters is that of historical usage. Here Canada's claim is more tenuous, as no states have de jure recognized the area as internal waters. Canada might respond by pointing to its de facto exclusive historical control over the Northwest Passage (Zou, Reference Zou2005: 76). Yet this claim also began to weaken in the 1960s due to the increasing difficulty of excluding occasional American icebreakers, which fortunately still courteously requested Canadian permission. Canada's claim could be more seriously undermined with the thawing of the Northwest Passage, as frequent and varied foreign vessels might transit without requesting permission.

On the other hand, the American claim that the Northwest Passage is an “international strait” also features several incongruities. Geographically, this strait would be significantly longer than any other international strait (the most famous ones being Gibraltar, Malacca, and Bosporus), and even longer than many major rivers, which clearly qualify as internal waters. The historical grounds are similarly inconclusive. They arise largely from the precedential 1949 Corfu Channel case, in which Albania protested British naval transit near its shoreline. There, the International Court of Justice held that the channel's prior 2,400 transits by several major powers rendered it international in character, but the granting of standing to the plaintiff presumably indicates an ambiguity about whether even this high number would suffice to internationalize the passage (International Court of Justice, 1949). In contrast, the Northwest Passage has been transited barely a hundred times in recorded history, and those transits were often by small private vessels (Macfarlane, Reference MacFarlane2012: 1). Moreover, Canada's 1970 assertion of sovereignty went entirely unchallenged for 15 years (McKinnon, Reference McKinnon1987: 800). It is far from clear that an international tribunal would (at this time) deem the Northwest Passage an “international strait.” Hence, the situation seems to call for a third option. And partisans of the “international strait” position may be surprised to learn that the man who first conceived their own position actually offers one.

The Young Grotius and the Free Sea

The implicit frameworks that ground the current legal debate were forged as the Westphalian system of sovereign modern nation states was beginning to take shape. At the turn of the seventeenth century, Portugal and Spain were the world's two undisputed naval powers. Unsurprisingly, both advocated private ownership of the sea, and the only dispute—settled by the Vatican—concerned the demarcation of this maritime duopoly. However, in 1603, a Portuguese merchant ship was attacked and subdued in the Strait of Singapore by a challenger to the concept of Portuguese Pacific ownership: the Dutch East India Company (Vereenigde Oost-Indische Compagnie, or VOC). The VOC defended its action by turning to one of its directors’ sons: the twenty-year-old Hugo Grotius, a young prodigy already known across Europe. The VOC sought a brief pamphlet cataloguing Portuguese iniquity and justifying the punitive Dutch response; the precocious Grotius would instead produce the synthetic treatise De Jure Praedae (DJP), or The Law of Prize and Booty, grounding the Dutch action in a theory of global seafaring.

The VOC would publish only the twelfth chapter of DJP, titled Mare Liberum (ML), or The Free Sea; the rest remained hidden until 1864. Yet this short selection builds on the foundations that Grotius lays out in DJP: that “self-interest is the first principle of … nature” and that individual “expediency”—in the imperative of protecting person and property—is “the mother of justice” (Grotius, [Reference Grotius and van Ittersum1603] Reference Grotius and van Ittersum2006: 21–22, 27–28). The enlightened protection of our natural self-interest will produce two conclusions about maritime travel: that naval transit passage cannot be denied to any nation and that the sea cannot be owned.

Grotius bases his first conclusion—the imperative of transit passage—on a theory of trade. Just as Aristotle had pointed out that individuals are not economically self-sufficient and therefore must come together to specialize and trade in the polis, Grotius argues that the same is true at the national level. Because some nations are not naturally self-sufficient in their endowment of resources, they must rely on specialization and trade with other nations for a complete material existence. Hence, a nation's freedom to trade with a variety of counterparts is essential to its very existence. Thus, when the Portuguese close off the Pacific to foreign transit passage, they threaten the very principles of sovereign nationhood, including—indirectly—their own (Grotius, [Reference Grotius and van Ittersum1603] Reference Grotius and van Ittersum2006: 302–4).

Grotius bases his second conclusion—that the sea cannot be owned—on a theory of property. This conclusion anticipates a twenty-first-century understanding of public goods, as well as John Locke's more famous iteration. Private property is legitimate when a good is rivalrous, and it is possible when a good is excludable (Grotius, [Reference Grotius and van Ittersum1603] Reference Grotius and van Ittersum2006: 320–21, 337–38). A good is rivalrous when its first user either consumes it or causes wear and tear on it. When goods are common, first users cannot be prevented from using up goods and leaving less for others, resulting in the tragedy of the commons. In order to better preserve such a good, users must be made to pay to take it from the commons. For Grotius, one may “pay” by expending one's labour to occupy it. In doing so, one metaphorically fences off this rival good, making it excludable. Grotius here cites Seneca's classic example of open theatre seating for a free event. Such seats operate on the principle of “first come, first served,” and the “industrious” first arrival lays a claim to a particular seat through the duration of the show. Hence, there is a natural exclusion—a right of property—that arises from one's labour (Grotius, [Reference Grotius and van Ittersum1603] Reference Grotius and van Ittersum2006: 314–19).

According to Grotius, the sea cannot be owned because it is neither rival nor excludable. It is nonrival because it is “capable of serving the convenience of a given person without detriment to the interests of any other person”—a perpetual wellspring seemingly incapable of depreciation. It is nonexcludable because, like the air, one cannot occupy it as one occupies an unused theatre seat (Grotius, [Reference Grotius and van Ittersum1603] Reference Grotius and van Ittersum2006: 320–22). What is more, if it cannot be legitimately owned, then it cannot be subject to the sovereignty of a ruler. Hence, any claim to sovereignty over the sea is not a natural labour-claim to property, but an artificial speculator-claim to a monopoly. It turns a nonrival, nonexcluded public good into a nonrival but (illegitimately) excluded club good.

The Mature Grotius and the Conditionally Free Sea

When Grotius defended the VOC action by developing a doctrine of the free sea, he showed signs of the integrative ability that would later blossom into a vast oeuvre; one contemporary would even describe Grotius as “the greatest universal scholar since Aristotle” (quoted in Trevor-Roper, Reference Trevor-Roper1992: 79). While Grotius uncharacteristically held off on publishing his early DJP (save for the one chapter), he and his heirs would publish the 1625 De Jure Belli ac Pacis (DJB), or The Law of War and Peace, a hundred times in a dozen languages. The University of Heidelberg would install Samuel von Pufendorf in its newly established chair in the law of nature and nations—a subject that Grotius's DJB was thought to have originated.

The magisterial DJB introduces a concept of nature that diverges from the earlier DJP. Notably, where DJP employed a self-interested “first nature” (Grotius, [1625] Reference Grotius and Tuck2005: 82–86), DJB adds what we might call a “second nature” that posits additional, more directly other-oriented norms (Grotius [1625] Reference Grotius and Tuck2005: 87–89; Geddert, Reference Geddert, McGuire and Snell2016: 76–81). Where one's first nature self-interestedly seeks to protect one's physical flourishing, one's second nature seeks to actualize the essence of one's best self. In DJB, Grotius now describes the latter, not the former, as the “mother of justice.” Societies can attain the aims of second nature only by pursuing the wider flowering of nature in both its human (that is, sociable) and physical (that is, environmental) dimensions (Grotius, [1625] Reference Grotius and Tuck2005: 87–89, 93, 142–50, 1159–62; Geddert, Reference Geddert2017: 53–56, 154–59).

When Grotius augments his concept of nature in DJB, he is also forced to revisit his earlier understanding of politics in three important ways. First, DJB now asserts that people would enter political society even in the absence of material scarcity, simply to see their naturally social and political character flourish (Grotius, [1625] Reference Grotius and Tuck2005: 80–81, 87–89, 241; Tuck, Reference Tuck1993: 197–98; Brett, Reference Brett2002: 40–41; Geddert, Reference Geddert2017: 77–82; see also Grotius, [1614] Reference Grotius and Van Dam2001: 208–11, 222–25). Second, DJB argues that justice may call for active sacrifices on behalf of the common good (Grotius, [1625] Reference Grotius and Tuck2005: 118–23). Third, DJB now sees justice as a political community's responsibility to foster overall human flourishing (Grotius, [1625] Reference Grotius and Tuck2005: 87–89). To sum up in reverse, nations now have more than the negative responsibility of DJP to not threaten other countries’ sovereignty; they have 1) positive responsibilities, 2) ones that may indeed call for sacrifice, 3) to an international society that exists by reference to a human good that transcends the basic survival of its individual member states. These changed theoretical foundations provide a context when we come to Grotius's surprising admission in DJB: that under certain conditions, the sea may be closed off, regulated and taxed.

In DJB, Grotius treats the sea by reference to his earlier “public goods” framework, but he reconsiders both the nonexcludable and nonrival character of the sea. He begins with excludability. From his industrious Dutch vantage point, Grotius now accounts for the fact that shallow and marshy sea territory may be used for agriculture or aquaculture. When one labours to install a permanent apparatus in the sea, such as dikes or fish-holding instruments, one occupies the sea as one occupies a theatre seat (Grotius, [1625] Reference Grotius and Tuck2005: 463–70). Thus, the sea might now be legitimately excludable by the nature of labour, not illegitimately excludable by Portuguese artifice. He then treats rivalrousness. This industrious transformation that makes the sea economically productive redounds to the benefit of all. However, it requires expensive up-front capital investment by the operator and laborious upkeep to prevent depreciation. No single actor will take on this expense and risk if free riders can appropriate the product. One must thus fence off this rival good through labour, but one still depends on state enforcement of that boundary. Hence, unlike naturally provided nonrival goods, which ought not to be excluded by state artifice, the creation of such rival goods in fact calls for excludability by state enforcement; common pool goods ought to become private goods. In Grotius's words, if coastally adjacent areas of the sea can be both improved and “compelled from the land,” then they can (and should) come under the sovereignty of a nation (Grotius, [1625] Reference Grotius and Tuck2005: 444–47, 463–70).

Yet while Grotius has altered his second premise of DJP to allow for ownership and thus sovereignty over the sea, he has not altered his first premise that demands the right of nonmilitary passage for all states. After all, the productive use of the sea need not prevent its use for maritime transport. What is more, if this ownership (and consequent sovereignty) legitimately arises from the public benefit of the increased bounty that it bestows on the earth, then that same public benefit requires a wide exchange market on which that bounty can be made available. The wide availability of goods requires maritime passage by vessels of other nations (Grotius, [1625] Reference Grotius and Tuck2005: 466–69). But if Grotius's prescription for this right of passage remains the same as in DJP, the framework has been substantially altered. In DJP, one must merely refrain from harming the existence of another state and thus not close off what belongs to all. Now Grotius points out that one must actively help others by sacrificially granting them right to use what legitimately belongs to oneself.

Nonetheless, if this possibility of sovereignty requires granting the right of passage, it does not require granting free passage. Much as economic installations in the sea require upkeep, Grotius now points out that safe sea lanes require public goods such as lighthouses that cost money. These allow ships from all countries to avoid wreck, but the coastal country that constructs such a pure public good incurs costs disproportional to the meagre fractional benefit it reaps from the installation. Accordingly, Grotius now says that it is licit to impose “a reasonable tax” upon those who pass through one's maritime territory. But one may not gain a profit from these fees; one may only recoup the costs associated with facilitating transportation for the benefit of every nation (Grotius, [1625] Reference Grotius and Tuck2005: 444–47, 470–74). Coastal nations and seafaring countries are responsible to co-operate for the common good.

In sum, Grotius's mature concept of sovereignty is not the DJP vision, which merely demands the noninjury of others’ sovereignty, a restraint that ultimately improves the protection of one's own sovereignty. Rather, Grotius's sovereignty is now a nonabsolute concept that implies responsibilities. In other words, Grotius envisions a maritime regime in which maximum use, co-operation, trade and economic growth are balanced against the imperative of conservation and the greater investment of the sovereign littoral state toward that end.

Each of Grotius's three emphases in DJB—excludability, promotion of trade and taxability—is, in fact, quite prescient. First, while land reclamation was in its infancy in Grotius's day, offshore oil platforms today make productive even portions of the sea not immediately adjacent to land. Second, international commerce is also far greater today than in Grotius's day, and sea transits—including those through areas of oil exploration—have mushroomed. Third, modern technology has multiplied the possibilities—and thus the expenses—of safe passage; the efforts involved in constructing and staffing a Coast Guard, icebreaker or search-and-rescue operation dwarf those of a lighthouse. Such costs are even higher in the Arctic, where native species are uniquely vulnerable and logistical challenges are magnified. The Northwest Passage is less a perpetual wellspring, which ought to be a public good rather than a club good, and more a free public swimming pool with no governing authority—a common-pool good that would be better kept as a private facility with modest fees. If Grotius recognized limits to free passage in 1625, he would even more surely recognize limits today. But before we explore the immediate implications for Northwest Passage transit, we turn to examine how Grotius's new presuppositions in DJB ground a wider and more comprehensive foreign policy framework, one that might guide Canada in the Arctic.

The Grotian Legacy and the English School of International Relations

If Grotius were merely the originator of a (qualified) defence of the free sea, this would be reason enough to explore his relevance for Arctic policy. After all, Grotius leaves Canada's opponents in an awkward position: how can they maintain a hard line when even he does not? But Grotius is worth studying further, because the overall vision that grounds his maritime policy is surprisingly amenable to Canada's historical foreign policy approach and international identity. When we explore Grotius's contemporary manifestation, we might find that a Grotian compromise also suits Canada.

Grotius's international vision was given its contemporary manifestation in the 1960s with the rise of the English School of IR. This school of thought arose informally around Martin Wight, who self-consciously placed himself within the Grotian legacy (Wight, Reference Wight, Wight and Porter1992: 268). Wight and his interdisciplinary circle sought an alternative approach to the ascendant American positivist schools of neorealism and neoliberalism. This group instead drew from—and mediated between—the classic normative and historical traditions of Machiavellian realism and Kantian idealism. In doing so, they captured the spirit of Grotius, who sought peace as a diplomat during the Thirty Years’ War and who drew on custom and history—both contemporary and ancient—as he developed the concept of international law.

The English School continues to advance today through a variety of methodological commitments—perhaps a sign of its success (Little, Reference Little2000: 396–99). Nonetheless, its inspiration remains Grotian, and its agenda is still deeply influenced by Wight and his better-known collaborator Hedley Bull (Buzan, Reference Buzan2014: 5). In The Anarchical Society, Bull portrays international relations not as total anarchy (as in Machiavellian realism) or as an embryonic world society (as in Kantian idealism) but rather—reflecting Grotius's presuppositions in DJB—as a “society of states,” or “international society.” States (and their leaders) are the basic unit of international relations, but they ought to (and ordinarily do) constrain their actions by a common set of practices and institutions that are mediated through moral-political discourse (Bull, Reference Bull1995: 13, 46).

One particular kind of state is especially well suited to promote and strengthen international society: the middle power. Middle powers are large and powerful enough to credibly take a measure of international responsibility. For this reason, they can be balanced in their criticisms of the great powers that carry even greater burdens of responsibility. However, middle powers are also small enough that they cannot act with impunity. Thus, they seek to check those larger states that can act with relative impunity and to remind them of Lord Acton's famous dictum about the corrupting influence of absolute power(s) (Wight, Reference Welsh1979: 63–66; Keating, Reference Keating2014: 171–75).

Wight further expands this concept of responsibility when he depicts leaders of states as trustees, responsible for the legitimate interests of the people they govern. They are not obliged to act with familial charity toward other nations any more than the executor of a will can distribute the money to his or her favourite charity. Nonetheless, as they must pursue their own interests, they must yet uphold the international society in which they participate, which requires them also to consider the legitimate interests of the other member states (Wight, Reference Wight, Wight and Porter1992: 241–42). Hence, these national leaders must seek a harmony of interests. Wight's use of the term “harmony” is fitting, as musical harmony features individually distinct pitches in dynamic relationship with other pitches, together moving back and forth between tension and (always imperfect) resolution (Wight, Reference Wight, Wight and Porter1992: 120–27). Hence, the English School places a premium neither on the international lawyer nor the warrior-statesperson, who respectively seek permanent solutions through law or conquest, but on the Grotian diplomat, who seeks to prudently manage these tensions.

How should the diplomat do so? First, by recognizing that not all elements of negotiation are essentials, and by making concessions on nonessentials. Leaders should avoid the strategy of “divide and conquer,” which not only undermines societal harmony but also functions less effectively than the “unite and influence” approach. This is because their nation's power depends not only on the ability to project diplomatic and military pressure but also on the ability to reduce its number of enemies. Second, the diplomat should seek agreements rather than triumphs. As Wight puts it, “the art of diplomacy is to conceal the victory … ‘to resist a score.’ Leave your antagonist a line of retreat but studiedly ignore whether he is taking it” (Wight, Reference Wight, Wight and Porter1992: 121, 153–54, 187). The diplomat best attracts allies and influences non-allies by using honey rather than vinegar.

The diplomat might foster this harmony by looking first to long-established partners. Much like individuals look first for co-operation among friends with a common background, diplomats work most effectively with other countries that share a history, culture and practices. This helps them to fulfil the obligations that have arisen toward these historical allies, while also looking ahead to a stronger friendship (Grotius, [1625] Reference Grotius and Tuck2005: 833–35, 1151–58).

By working with other nations to produce agreements, diplomats can gradually and organically develop international practices and institutions. Eventually, such customs may be fashioned into international law, which Wight describes as “the existing practices and treaties of states, constantly refined by references to certain fundamental standards and norms of which they are the imperfect expression” (Wight, Reference Wight, Wight and Porter1992: 233–37). This slow and steady approach to legal codification helps to ensure that laws on the international books are not merely aspirational but are supported by the major constituencies who are invested in helping to enforce them.

The English School and the Northwest Passage

Why might this Grotian-inspired “English” approach suit Canadian foreign policy—and by extension, Canadian Arctic policy? Tom Keating and others argue that it has implicitly characterized elements of Canadian foreign policy for generations. As a post-war middle power, Canada employed its position to help build international society in several ways. For example, Canada brought together actors in the Commonwealth and La Francophonie, working together with natural allies of shared history and culture. Canada also helped to keep hostile states such as the Soviet Union at the table, displaying a “unite and influence” outlook to manage the tensions of Cold War dissonance (Keating, Reference Keating2014: 171–75; Wolfraim, Reference Wolfraim2014: 72–73). Canadian diplomat-leader Lester Pearson also helped to develop the concept of peacekeeping, and for many years Canada participated heavily in such missions.

One might object that Canada's historical posture toward the Arctic belies this co-operative picture for at least two reasons. First, Canada's (in)famous 1904 “sector theory” claimed ownership to all seas between the 60th and 141st meridians up to the North Pole, a premise unsubstantiated in customary international law (Pharand, Reference Pharand1983: 324). Second, Canada's initial legal approach, the 1970 Arctic Waters Pollution Prevention Act (AWPPA), attempted to further stake Canada's claim to “internal waters” status in audacious fashion: it asserted control over waters within an expansive 100 miles of waters, far more than the 12 miles permitted in international law.

Yet such moves have demonstrated only a superficial or passing hostility to international society, and a deeper consonance with it. First, Canada never made the “sector theory” into official policy, and formally abandoned it in 2006 (Coates et al., Reference Coates, Lackenbauer, Morrison and Poelzer2008: 85). Second and more substantively, AWPPA based its ostensibly unilateralist claims not on the usual historical or geographical bases of Canada's sovereign right but instead on Canada's responsibility to protect the environment. In particular, AWPPA strikingly declined to assert the standard (and essential) sovereign provision of internal waters: the right to prevent innocent passage of foreign vessels. Rather, Canada claimed only the functional jurisdiction to delineate shipping lanes and to regulate and enforce standards for the construction, operation and navigation of foreign vessels that would traverse those lanes. Such powers were otherwise unavailable to Canada under the regime of “international strait” or even “territorial waters” (Byers, Reference Byers2010: 15; Canada, 1970: Secs. 4–9, 12, 23–25; Coates et al., Reference Coates, Lackenbauer, Morrison and Poelzer2008: 97–99). Indeed, the nations that shaped UNCLOS specifically inserted Article 234, which effectively endorsed and incorporated AWPPA's approach to the Arctic (Young, Reference Young and Griffiths1987: 127–28). Canadian regulation of the Northwest Passage under AWPPA thus provided better stewardship and responsibility than does an international straits regime, to the benefit of all seafaring nations—and the planet itself.

Canada deepened this middle power “international society” approach in 1988, when it persuaded the US to make “the rarest of exceptions to its rigid navigational freedoms mantra” and to accept the Arctic Cooperation Agreement (ACA) (Gupta and Roy, Reference Gupta and Roy2014: 70–72). This mutual understanding committed the US to ask permission for government-sponsored icebreaker transits of the Northwest Passage, thus helping to preserve Canada's claim of sovereignty. Reciprocally, the agreement committed Canada to guarantee innocent passage for such American ships (Grant, Reference Grant2010: 450). This approach built on the historical friendship between Canada and the US and on the personal friendship between Brian Mulroney and Ronald Reagan (Coates et al., Reference Coates, Lackenbauer, Morrison and Poelzer2008: 121–22). Here, Mulroney followed the “trusteeship” model of leadership, preserving Canada's interest in Arctic sovereignty but also recognizing the legitimate interest of the United States to access a maritime channel whose defence against the Soviet Union it had much helped to secure (Coates et al., Reference Coates, Lackenbauer, Morrison and Poelzer2008: 85).

In the twenty-first century, Canada's reputation as a middle power began to decline, as reduced Canadian military spending and political will led to a diminished role in international organizations (Paltiel, Reference Paltiel2018: 351; Wolfraim, Reference Wolfraim2014: 73–75). Yet as Canada faced consequent calls to be more targeted with its reduced diplomatic clout (Welsh, Reference Welsh2004: 584–85; Cooper, Reference Cooper2015: 196–98), it nonetheless maintained the Arctic as one important arena in which to advance its national interest through transnational channels. For instance, Canada continued to drive forward the Arctic Council, whose American participation Canada had much helped to secure, thus building allies through shared Arctic interests. In 2010, it established a mandatory registration (NORDREG) for large ships in the Northwest Passage under its Article 234 powers, thus providing greater information to Canada while better enabling potential search-and-rescue efforts for these foreign vessels (Lajeunesse, Reference Lajeunesse2017: 186, 293; Lasserre and Alexeeva, Reference Lasserre, Alexeeva, Lalonde and McDorman2015: 182–83). Recently, Canada has also worked with the International Maritime Organization to develop a Polar Code (mandatory as of 2017) that grants Canada some powers not dependent on holding legal sovereignty (Kikkert, Reference Kikkert2012: 326–32).

Canada's approach in each of these cases fits the aim of its 2009 Northern Strategy (Canada, 2009: 34): to “deepen cooperation” with its “exceptionally valuable [American] partner in the Arctic” on “common interests.” In English School fashion, Canada has pushed far enough on these aforementioned issues to earn US protest but not backlash, thus managing the tensions within an overall general harmony (Grant, Reference Grant2010: 452). Moreover, Canada's outcomes in these cases have given life to its 2010 “Statement on Canada's Arctic Foreign Policy” (Canada, 2010: 3–4, 16–18), which aims to institute an ecosystem-based management approach and to promote a rules-based international system. Canada has accomplished these outcomes by pushing not for the status of exclusionary sovereignty but instead for the exercise of functional jurisdiction that empowers it to protect the global environmental common good. This has vindicated Canada's assertion (Canada, 2010: 6) that it “exercises its sovereignty daily through good governance and responsible stewardship.” Through these outcomes, Canada has effectively upheld (in Grotian fashion) not only the formal freedom of the seas but also the need to govern the exercise of that freedom.

A Grotian Foreign Policy?

What, then, might a Grotian policy of sovereignty as responsibility look like in a context where Canadian Arctic sovereignty is newly threatened by the advent of commercial shipping? In one possible option, Canada might pursue an agreement with the United States that extends the existing 1988 ACA to all vessels (including commercial and naval vessels). This option would commit Canada to significant investment in Arctic infrastructure; it would also commit the US to assist Canada in its Article 234 enforcement against third-party states; and it would avoid mention of the terms “internal waters” or “international strait” and thereby not set a precedent for other waters.

The first benefit of updating this agreement would be to improve Canada's functional jurisdiction by preventing noncompliant American commercial freighters from seeking to defy Canada's regulations. In English School fashion, this would protect essential Canadian provisions such as proactively regulating and enforcing Arctic shipping mandates, while conceding the nonessential “internal waters” right to arbitrarily stop American ships. Indeed, if Canada were able to exercise effective jurisdiction without actually holding the absolute power traditionally associated with sovereignty, it would function less as an owner than a trustee—the very image of the diplomat in the English School.

Second, such an agreement would recognize and formalize common interests. Several observers on both sides of the border have pointed out that the American insistence on “international strait” would confer a right of overflight on foreign nations—including Russia, which has reinstated Arctic patrols (Huebert, Reference Huebert2009: 27). For these reasons, US Ambassador Paul Cellucci recommended in 2005 that the US recognize the Northwest Passage as internal waters, and in 2010 Secretary of State Hillary Clinton stated that the US was beginning to discuss seriously the idea of such a recognition (Byers and Baker, Reference Byers and Baker2013: 140; Lajeunesse, Reference Lajeunesse2017: 291; O'Leary, Reference O'Leary2014: 131–32). From the American perspective, such a bilateral agreement with a co-operative neighbour might also persuade the US Senate to accede to UNCLOS, a policy long desired by US presidents from both parties. Hence, in such an agreement both nations would consider the legitimate interests of the other, helping to promote the “harmony of interests” suggested by Wight. They would also bolster the existing Canada-US “special relationship” that has produced successful joint maritime ventures, such as the St. Lawrence Seaway (Huebert, Reference Huebert2009: 25–28; Macfarlane, Reference Macfarlane2014).

Third, placing the agreement within the framework of Article 234—and agreeing to avoid the language of sovereign status altogether—would provide both legal and diplomatic grounds to ensure that this policy would set no precedent for non-Arctic areas. Such a statement would help to preserve what America has consistently considered an essential interest: not setting a precedent for straits such as Hormuz or Malacca (Coates et al., Reference Coates, Lackenbauer, Morrison and Poelzer2008: 100; Huebert, Reference Huebert2009: 26; Lajeunesse, Reference Lajeunesse2017: 291, 304). This would prevent an outcome in which one side has scores to settle or views the agreement as temporary (Wight, Reference Wight, Wight and Porter1992: 187, 193–94, 198). Such an agreement (rather than a ‘victory’) would allow American diplomats to save face by returning home with tangible symbolic gains: Canadian assent to access for all American ships (Wight, Reference Wight, Wight and Porter1992: 121).

The Canadian commitment to increase its enforcement capacities might bring a fourth (and related) benefit: helping to win over international society, at a time when none of its members have recognized Canada's claim. The proposed focus on functional jurisdiction would avoid the language of absolute sovereign status, in which the issue becomes one of zero-sum distributive bargaining. In such negotiations, one's prospective gain is another's loss, which invites the other to respond with a defensive show of strength. In contrast, by merely emphasizing existing Article 234 powers, Canada would emphasize a proactive commitment to the environment and would invite the world (beginning with the US) to help in this quest. This approach would refocus the issue toward mutually beneficial integrative bargaining (Young, Reference Young and Griffiths1987: 115, 124–25). Thus, rather than maximizing and galvanizing Canada's adversaries, it would recognize (in English School fashion) the importance of minimizing enemies.

Yet for all the focus on integrative bargaining, the diplomatic and military support of the world's superpower would also bring a fifth benefit: providing weight to Canada's ability to exercise its jurisdiction against potentially hostile third parties, such as Xi's China (Paltiel, Reference Paltiel2018: 344, 357–61). Although China has pre-emptively inveighed against any bilateral Canada-US agreement, its recent denunciation of the Permanent Court of Arbitration currently places it in a weak position to accuse Canada of violating international law with such a deal (Nolin, Reference Nolin2017: 356; Lajeunesse, Reference Lajeunesse2017: 294). American support would boost the credibility of Canada's international advocacy and strengthen Canadian environmental jurisdiction, thus—in English School fashion—uniting enforcement power with the moral ideals of international convention (Wight, Reference Wight, Wight and Porter1992: 153–54).

Finally, such an agreement would commit Canada to take up a long-neglected role as active trustee (Griffiths, Reference Griffiths1987: 81–83). As Donat Pharand has argued, “The United States will never agree to recognize our full control over those waters unless they know that we have the capability to exercise that control, which we do not have at the moment” (Byers, Reference Byers2010: 62–70, 80). Indeed, at present, the US might even better attain its own security by discreetly policing the Northwest Passage itself under an international straits regime than by granting Canada a robust authority that Canada cannot effectively exercise. A new agreement with the United States would provide a Canadian prime minister additional political capital by which to justify immediately increased spending on search-and-rescue capacity, oil spill prevention and polar mapping. Looking ahead, Canada might further consider speeding the construction of an icebreaker to replace the Plymouth Barracuda-vintage Louis St. Laurent and adding another heavy icebreaker to supplement its fleet of lighter Harry DeWolf–class vessels. These would help to facilitate Arctic shipping and international trade, as well as help to repair Canada's Arctic credibility. By committing to the expense of such resources, Canada would make Grotian sacrifices for the good of international society, thus in turn better vindicating its own claim.

Of course, some US presidents might be less amenable than others to such a proposed agreement; the Trump-Trudeau relationship is not the Reagan-Mulroney one. But while heads of government come and go, the issues remain. Future American administrations may seek to mend fences with traditional allies. Even at present, President Trump's insistence that US allies should increase their military spending might well dispose him to such an agreement. Indeed, the current American insistence on greater allied responsibility is only a louder variant of President Obama's earlier and more diplomatic calls for the same.

Sovereign Responsibility and International Society

In conclusion, a Grotian foreign policy offers surprising possibilities for Canada. The classic defender of the free seas is not so much a threat to Canada as an ally. Canada might better preserve its political capital not by resolutely opposing the legitimate interests of the seafaring states that constitute much of international society but by directing those states—particularly the US—to examine the foundations of their own supposedly Grotian position on the free seas. Much like a sea captain confident of navigating around a visible iceberg while neglecting its much greater hidden depths, those advocates of a simplistic “international strait” stance might find their own position beginning to take on water. Indeed, if Canada were to take up the mantle of the free-sea progenitor, and thus appeal to the basic premises of its opposition, it might be able to symbolically affirm the desirability of the open sea, while still achieving its substantive aims.

Canada might, of course, be wise to continue its appearance of opposition, as a necessary bargaining chip to trade for these concessions. Indeed, Wight argues that while diplomatic agreements should be made public, it is not necessary (or even wise) to conduct negotiations in public (Reference Wight, Wight and Porter1992: 199–202). However, behind closed doors, Canada might consider holding off on advancing status-based claims of sovereignty in order to gain better exercise of functional sovereignty (see Beesley, Reference Beesley1971: 7).

A recent standard-bearer in Arctic scholarship suggests that the centuries-old Western quest for the Northwest Passage will be unfinished until “either the international community can be brought to accept the Canadian position or Ottawa is forced to accept the existence of the right of transit passage through its waters” (Lajeunesse, Reference Lajeunesse2017: 13). But perhaps a Grotian “middle way” might transcend this binary opposition, at least for now. Indeed, if sovereignty is about responsibility and the capacity to exercise it, then Canada needs acquiescence only to the acts it wishes to carry out. As Young points out, “many social institutions operate effectively in the absence of formalization” (Reference Young and Griffiths1987: 130)—perhaps even the current Canadian Constitution.

Indeed, this distinction between the status and the exercise of sovereignty reflects an important and underexplored theme in Grotius's conception of rights (including the right of sovereignty): that of an embedded notion of responsibilities (Geddert, Reference Geddert2017: 1–3, 15–16, 142–62, 198–208). Rights are the political discourse of today, and Grotius is increasingly cited as the true pre-Hobbesian/Lockean progenitor of subjective natural rights. Likewise, Grotius is even more commonly cited as a progenitor of the modern nation-state system characterized by sovereignty. But when we examine the Grotian roots of rights, we might find a rights discourse less fixated on enlightened self-interest and more attentive to the enlargement of responsibility. Likewise, we might find a conception of sovereignty not simply defined by power but oriented toward the general good—a good not reducible to the sum total of national self-interests in maintaining the idea of sovereignty, but a good that transcends such interests by seeking to preserve nature in all its forms. Hence, rather than clinging to an absolute concept of Arctic sovereignty as a status symbol, Canada might advocate its own fitness to maintain such elements of leadership over the Northwest Passage as conduce to the benefit of all. This approach might allow Canada to recapture, in this specialized sphere, its historical attitude of multilateralism, to assume greater international responsibilities and to strengthen its voice in the society of states. As Canada grapples with the fading “middle power” self-understanding of its youth, it might find that agreeing to a right of (Northwest) passage in the Arctic heralds a coming stage of mature and invigorated international citizenship.