Canada’s emerging freedom of navigation conundrum

Freedom of Navigation Operations (FONOPs) are regularly conducted by the United States Navy globally, challenging ‘excessive maritime claims’ of coastal states which they accuse of illegally constraining Freedom of Navigation (FON) for commercial and/or military vessels. Those conducted in the South China Sea have growing strategic salience, given concerns China is attempting to carve away this maritime area under its exclusive control, altering the regional geopolitical landscape and setting a precedence for others to do the same. The United Kingdom and France have also begun conducting FONOPs with other allied navies augmenting their presence operations in these waters as well. The possibility of an ask by Washington to participate and/or more assertive demands by Beijing for foreign navies to leave these waters—which Canadian warships are increasingly frequenting–warrants clarification by Ottawa on Canada’s position on FONOPs. Their silence on this matter, however, is not simply a function of regional considerations, but also most likely due to their implications in waters closer to home in the Arctic. Canada has a number of Arctic maritime disputes, most notably with the United States over the status of the Northwest Passage and whether they are internal waters conferring full sovereignty as Ottawa asserts or are an international strait sanctioning transit rights for foreign vessels as Washington argues. This dispute has been well-managed for decades, with the construction of a pragmatic agree-to-disagree arrangement not undermining Arctic cooperation or their larger relationship. Recent and repeated assertions, however, by the Trump Administration of the need to conduct FONOPs in the Arctic complicates any move towards a Canadian universal position on them. There are only two target states American FONOPs would be conducted against in the Arctic—Canada and Russia. In the former case, any American FONOP through the Northwest Passage would reignite popular yet wildly overblown concerns about sovereignty being at risk, which is already being positioned as a campaign issue. With deep ties throughout Canadian and American defence and security networks, and enduring common security interests, the risk of a major and permanent disruption to relations is small. There would, though, be domestic pressure to respond in some way, either legally and/or diplomatically. American FONOPs against Russian claims over the Northern Sea Route could be an entirely different story. American FONOPs in these waters have not been attempted since the 1960s, with any moves to do so now most likely being aggressively challenged by Russia who views control over them as vital to the integrity of their economic and military security. Such an encounter at sea risks not only a severe crisis between them but as well eroding the stability of the Arctic region, which despite tensions elsewhere has been a largely peaceful and cooperative area between Russia and the West. Increasing American pressure, also, on Arctic NATO allies to counterbalance both China and Russia in the region—as part of Washington’s new narrative of the Arctic becoming an emerging geopolitical competitive arena—may one day include FONOPs. This would place Canada in an awkward position between supporting Alliance activities and not wanting to condone FONOPs given their possible use against Canada’s Arctic claims as well as undermining regional stability writ large. Participating in FONOPs, either in the Arctic or elsewhere, would in effect signal acquiescence to them as a legitimate tool to challenge excessive claims even though the United States would under no circumstance participate in legal proceedings to resolve specific disputes. Further complicating the matter is that Canada’s Arctic waters claims, specifically the drawing of strait baselines around the Arctic Archipelago designating them as internal waters, rely on similar legal rationales to those used by Russia with respect to the Northern Sea Route and China regarding the Qiongzhou Strait (between Hainan Island and the Chinese mainland). With these factors in mind, it is unlikely Canada will develop a FON policy nor participate in FONOPs in the foreseeable future. This does not mean Canada should not be concerned about or involved in protecting FON. Great power competition is posing challenges to the maritime realm, in general, and the Arctic, in particular, but Ottawa should construct a tailored FON approach for each region which takes into consideration the strategic differences of each. Canada should be opposing excessive Chinese maritime claims over the South China Sea (which have been struck down by an international court in 2016) with presence operations which do not strictly fall under the FONOP structure while working with the United States and allies in highlighting the unique strategic situation of the Arctic which could be undermined by a blunt implementation of such operations there. Whether such a strategy, however, can be maintained in the long term is uncertain especially as the Arctic becomes a more open and internationalized maritime region. To Canada, therefore, it may be our major ally, the United States, which may pose an equal if not more intractable challenge than China or Russia in this respect. Adam P. MacDonald is a PhD student in the political science department and deputy-director of the Centre for the Study of Security and Development at Dalhousie University. He can be reached at adam.macdonald@dal.ca or on Twitter @adampmac. The Hill Times

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Canada’s emerging freedom of navigation conundrum

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