Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue 6 - Evidence - April 8, 2008
OTTAWA, Tuesday, April 8, 2008
The Standing Senate Committee on Fisheries and Oceans met this day at 5:54 p.m. to examine and report on issues relating to the federal government's current and evolving policy framework for managing Canada's fisheries and oceans. The topics were Arctic study and consideration of a draft budget.
Senator Bill Rompkey (Chair) in the chair.
[English]
The Chair: Honourable senators have the budget before them. It is straightforward with regard to future activities of the committee, including two trips to the Arctic, one being to join the Coast Guard on an icebreaker. Before adopting the budget, I would like senators to give the committee permission to sole source. Due to the remote nature of the communities we will be visiting, I would like to seek an exemption to the competitive sourcing policy of the Standing Committee on Internal Economy, Budgets and Administration.
Is it agreed?
Hon. Senators: Agreed.
The Chair: The exemption will be for the air charter and the rental of translation and interpretation services equipment. With that proviso, are there further questions on the budget?
Senator Adams: Will translation services be for English and French languages only?
The Chair: No. We will translate in Inuktitut as per the House order, which says that this committee will be the first to use Inuktitut as an official language in its work. This service is built into the budget as per the rules committee.
The total amount of the budget is $588,707, which is subject to the extension of our order of reference beyond June 27, 2008. With those provisos, I would ask for a motion to adopt the budget.
Senator Hubley: So moved.
The Chair: It is moved by Senator Hubley, seconded by Senator Watt. Are senators agreed?
Hon. Senators: Agreed.
The Chair: Thank you.
I now welcome Scott Borgerson to the Standing Senate Committee on Fisheries and Oceans. The current mandate of the committee includes a study of the Arctic. We have heard from a number of different witnesses, such as Professor Michael Byers from British Columbia, Professor Ron Huebert from Alberta and Duane Smith from the Arctic. As well, we have heard from departmental officials from Fisheries and Oceans Canada.
Most of the members of the committee are long-standing and knowledgeable: Senator Robichaud from New Brunswick; Senator Watt from Nunavut; Senator Hubley from Prince Edward Island; Senator Cowan from Nova Scotia; Senator Adams from Nunavut who is the dean of the Senate and brings not only his knowledge of fisheries but also his Aboriginal knowledge of the area we are studying; Senator Gustafson replacing Senator Comeau tonight; Senator Cochrane, deputy chair of the fisheries committee, from Newfoundland and Labrador; and Senator Baker from Alberta.
I met Mr. Borgerson previously at a one-day mock negotiation between Canada and the U.S. Mr. Borgerson was part of the U.S. team. I was impressed by his knowledge of not only matters in the Arctic but also of the Coast Guard. Among other things, he has a Coast Guard background. As well, he is a principal at the global maritime consulting firm of Rhumb Line LLC. He is an international affairs fellow at the Council on Foreign Relations and at the Fletcher School of Maritime Studies, and is an adjunct senior research scholar at the Center for Energy, Marine Transportation and Public Policy at Columbia University. He served as director of the Institute for Leadership at the United States Coast Guard Academy, USCGA, and taught maritime and port security courses there. During a decade of active duty, Mr. Borgerson contributed to Coast Guard strategic planning and served several tours at sea, holding positions as navigator aboard the cutter Dallas and as commanding officer of the patrol boat Point Sal.
He received a Bachelor of Science with high honours from the U.S. Coast Guard Academy and a MALD and PhD from the Fletcher School. He also holds a U.S. merchant marine officer's master's licence. He is eminently qualified to talk to us about the Coast Guard. Mr. Borgerson will make some remarks after which we will ask questions.
Scott G. Borgerson, PhD, International Affairs Fellow, Council on Foreign Relations: First, I will try to answer your first questions in the introduction to my bio. The MALD from the Fletcher School stands for a Masters of Arts in Law and Diplomacy. I have an academic background in international relations and the art of negotiation and politics.
The centre at Columbia University is called the Center for Energy, Marine Transportation and Public Policy. It is led by a man who was the head of strategic planning before at Shell and now is looking at doing scenario work on shipping. The Arctic figures prominently, as you might imagine, in the centre's work. They are looking at all issues of shipping internationally and Columbia thinks the Arctic will be important in the future in terms of affecting the overall shipping industry.
Rhumb Line is a company I helped found that is strategic and global in nature. We advise both foreign governments and Fortune 500 companies on macro-strategic maritime trends — more than just the Arctic. There are many issues involving traffic, containers and so forth, but also the Arctic because that will figure prominently in the future.
I have prepared some remarks, which I believe have been translated. I will attempt to briefly paraphrase them so we can get on to the best part, which is always the questions and answers.
Thank you for inviting me here today. It is a privilege to be in Ottawa and to provide an outside perspective on the geopolitics of the melting Arctic Ocean. This is a complex issue, as mentioned, so it is vitally important that the U.S. and Canada approach this issue with foresight, vigilance and in a spirit of cooperation.
Before proceeding with the substance of my remarks, it is important that I make three quick points. The first is a disclaimer. I am no longer an officer in the Coast Guard. I am, in no capacity, an employee of the U.S. government — I make them nervous with things I write and say. Nothing I say here today reflects any positions of the U.S. government, although I feel I am well informed of their existing positions and perhaps will speak on those later in the testimony.
Second, I am not sure why I felt compelled to add this to my written testimony, but I wanted to particularly note the sensitivity of Arctic issues — especially Arctic sovereignty — to Canadians. I think Americans can under-appreciate this issue. I am keenly aware that issues of Arctic sovereignty strike at the heart of Canadian politics — in fact, perhaps what it means to be Canadian itself.
Franklin Griffiths is a dear friend of mine. He is a professor at the University of Toronto. He is a long-time scholar of Canadian politics and international relations and has helped me understand a bit about the Canadian world view on this subject. I just wanted to make that clear. Interestingly, as a point of contrast, the melting Arctic — and, in particular, opening Arctic sea lanes — has not been mentioned by any candidate in the ongoing presidential election.
Last, I find it helpful when you are hearing from someone giving testimony to have an upfront disclaimer of their ideological world view. I think I am a moderate. At the heart of it, I see the world through a realist lens. I strongly advocate to the U.S. government that it needs to unilaterally shore up its Arctic interests — building new ships, ratifying the Law of the Sea, beefing up its Arctic infrastructure and so forth.
At the same time, I am also an internationalist. I believe it is very much in the U.S. interest to pursue a robust relationship and invest real political capital energy into Arctic diplomacy so we might collaboratively manage these issues. You know my ideological leanings right off the bat.
We are here because global warming is melting the Arctic. It is important to differentiate between adaptation and mitigation. Mitigation deals with things like cap-and-trade schemes, a carbon tax and so forth. I have some ideas about that but do not plan to talk about it this evening. Instead, adaptation is what I am here to talk about, and what is driving the politics in the Arctic with the retreat of sea ice.
The first main point in the substance of my remarks is that I think that particularly the United States but elsewhere abroad — although I note the European Union's high minister for foreign affairs recently published a statement about EU common foreign policy in which he listed responding to the geopolitics of the melting Arctic as one of the highest priorities for the EU — the international community is still under-appreciating the pace of sea ice melt.
Some of the best science I have seen on this comes out of the Naval Postgraduate School in Monterey. They predict that, because of the ice albedo feedback loop and the role that the Arctic basin might be playing in trying to modulate the warming oceans elsewhere on the planet, we have passed a tipping point whereby the sea ice will all of a sudden exponentially melt away.
A few years ago, the forecast for when the Arctic might be ice free in summer was 2100. The Intergovernmental Panel on Climate Change grew that up by a factor of decades. Now we are talking ``perhaps'' because we do not know for sure and it is variable. Just because it is ice free in summer does not mean Maersk will be sending container ships through. However, I think this is happening sooner rather than later, and I have included some of the science in the testimony that I have submitted for the record.
In my view, if it is not a matter of if, but rather when, the Arctic is more open to shipping than it is now, we need to get on with further exploring and defining the cooperative management regimes by which to manage the coming ships.
Allow me for a moment, because this is what fellows do — it is a privilege of not being in the government anymore — to play devil's advocate and perhaps poke a hole in our respective positions in the Arctic. I will start with the United States because I am an American.
While we field the largest navy in the history of the world, larger than the next 13 navies in the world combined, I believe we are unprepared to present sovereignty or exert any presence in the Arctic. We have three icebreakers. Two of them — the Polar Sea and Polar Star — have been deemed operationally challenged, which means they are tied up to a pier in Seattle and there is no money to fix them.
The Healey is what is left and it is essentially designed to do science in the Arctic. It is about a decade old. We have one ship and, in the present budget for fiscal 2009, there are no plans to build new ships. In the Coast Guard's recapitalization program called Deepwater, there is not a nickel to build new icebreakers. That is a problem.
Even if we decided to build those ships, it will not happen overnight; it will take a long time. I will not get into the nuances of the Jones Act, which is another law that drives me crazy because I believe it has caused our shipbuilding industry to wither away to nothing. The costs of the ships we are building for the navy and the Coast Guard now are coming at a great expense and are taking a long time to build. Even if tomorrow President Bush or the Congress decided that building new icebreakers was a priority for the country, as Prime Minister Harper has done here, I believe it will take eight to ten years before the first ship is in the water.
Then there is the issue of the Law of the Sea, which we have not signed. Later in the discussion, I could give you an update on the politics of that and where it sits in the Senate, if you would like one. By not being party to the treaty, we do not have a seat at the table. We cannot formally invoke article 234 and we have not, regardless.
The current commander of the Coast Guard 17th District, which is Alaska, Rear Admiral Brooks, in the last two years has demonstrated leadership in trying to help the Coast Guard become more responsive there. Later, I can list what the Coast Guard is doing, if you would like to know that. In general, we are unprepared. Although this is not true in Alaska, I think there is a general under-appreciation of Arctic issues in the lower 48 states. I think I have painted a picture where the U.S. is not ready for the ships coming there.
On the Canadian side — and I will attempt to choose my words diplomatically because I am in sitting in Ottawa as your guest here — while I know that Professors Huebert and Byers have been here, and I consider them brilliant minds and friends, they make, as others have, strong arguments for why the Northwest Passage falls within Canada's internals waters. Frankly, I think the opposite view is also strong and has merit. That is perhaps why Canada might be seeking some sort of unilateral abdication by the United States and maybe is not 100 per cent confident that, if it sought legal judgment, it would win. I think there are problems with the historic claims. I think there are technical problems with how the baselines are drawn. I think there are problems with the fact that international transits have happened before. I am not a lawyer so will keep those comments brief but, in short, the position held by the U.S. navy and the official position of U.S. government also have merit, and Canada needs to appreciate that.
Then, of course, there is the issue of ships in Canada. Promises have been made before to build new ships. They have not been built. Canada's icebreaking fleet is not new. You know more than I do about the difference between the Canadian Coast Guard and the U.S. Coast Guard as it relates to a police force and whether or not the Canadian Coast Guard, if it found itself in the Arctic needing to do something that required a law enforcement authority and capability, would be able to assert that sovereignty.
In my flight here, I was reading the current issue of The Economist and there was a great article about RADARSAT- 2 and its sale to an American company. Reading the previous testimony before the committee, it seems that RADARSAT-2 has been covered in great depth and detail. I am not an expert in that and do not pretend to be, but I think there might be issues of overall maritime surveillance and maritime domain awareness of Canada's ability to exert sovereignty in the Arctic.
In my role as devil's advocate, if our respective positions are relatively weak in the Arctic but we have shared national interests, I think that creates the perfect circumstances and context for two close allies to cooperate and negotiate on how we might manage the opening Arctic Ocean and increase marine transportation there. It was in that spirit, at least from my perspective, that we gathered in Ottawa in February for this model negotiation on the Northwest Passage called ``Model Negotiations on Northern Waters,'' because we covered more than the passage. We had our discussion here and produced a document that I believe the committee has seen.
In thinking about our relative positions and the need for compromise, I will quickly outline three hypothetical scenarios and then will draw my statements to an end. The first scenario is a cruise ship like the Explorer which recently sank off Antarctica but also made voyages in the Arctic. In the next few summers, it is there carrying hundreds of Canadian and American citizens and runs into a piece of ice in a disputed area of the Beaufort Sea. What would we do? The second is an Exxon Valdez situation where a tanker, flying a flag of convenience that masks its true origin and ownership, falls in trouble on our northern shores and we have a massive ecological disaster. Third, an unfriendly fishing vessel poaches on the Arctic or otherwise a vessel engaged in suspicious activities. Such situations and the speed of sea ice melt require that our two countries work together.
In a lighthearted manner, since you are getting ready for the Stanley Cup here, while in Canada you might prefer hockey, in America, the baseball season just got started last week and we might prefer the far superior game of baseball, but in the end we actually still have a heck of a lot in common. Indeed, many scholars such as my friend Stephen Blank, who is co-chair of the North American Transportation Competitiveness Research Council, argues that in fact we have a deeply integrated economy and actually build things together. Socially, we essentially share the same values. Politically, we both have a commitment to the rule of law and democracy. In many ways, we are cousins. Like cousins that get together at the family dinner, we might not agree on everything, but in the end we are family and have a clear area in which we might cooperate here as well. We can do this on top of other areas where we are cooperating now. For example, we work closely together in NATO and NORAD and the Arctic Council, and we previously worked together to promote shipping in the St. Lawrence Seaway, the Great Lakes and the Juan de Fuca regions. Our coast guards share agreements for search and rescue. It is my understanding that in the last few weeks we have both signed a joint contingency plan for oil spill response on our Arctic shores.
In light of this history and our close friendship, I will end with three specific recommendations.
First, after reaffirming the 1988 Arctic cooperation agreement, which I think works well and is just fine, Canada should formally approach the United States to develop shared Arctic shipping standards, surveillance capabilities and enforcement mechanisms. We should also work together in establishing shipping lanes and infrastructure and marshal collaboratively our limited resources to jointly police the Arctic's vast expanse. The AMVER program actually has 121 Canadian vessels that participated in 2007, so I think it might also be considered in this context.
Second, the end goal of possible negotiations should be to create a joint U.S.-Canada Arctic navigation commission within the already existing Arctic Institute of North America. This commission should be modelled on the International Joint Commission as a recommendable body. I think the U.S. and Canada might look to the Montreux Convention that governs the Turkish Straits as an interesting example of how to balance safety, economic and environmental concerns.
Third, when approaching the United States, Canada should be prepared to lay all Arctic issues on the table in hopes of a possible grand compromise. This should include all of our maritime boundary disputes, especially the one in the Beaufort Sea. Ultimately, based on U.S.-Canadian leadership, we will be able to see even further Arctic cooperation based on the model of the Arctic Council, built upon the solid foundation of the UN Convention on the Law of the Sea, that pursues creative and nimble solutions able to address emerging Arctic issues. Foremost amongst these should be a joint U.S.-Canadian leadership in the IMO, International Maritime Organization, for a mandatory polar code.
In the end, our two nations are close allies with national interests that are far more in common than opposed. I am hoping that the spirit of that cooperation will carry the day in how we are managing our relative national approaches to increased Arctic shipping. The alarming pace of the great melt makes cooperating paramount and, in my opinion, prudent policy making by our two countries requires it. With that, I am grateful to be here today and look forward to responding to any questions you might have.
The Chair: It is interesting to note that you mentioned areas where we share responsibility and control already, such as the St. Lawrence Seaway, the Great Lakes, the Juan de Fuca Strait, and of course you mentioned NORAD. We also share NATO. I bet at this moment that Canadian and American ships are part of a joint task force on the East Coast, and perhaps on the West Coast, working together. That has been going on for years. There are a number of instances or precedents where Canada and the U.S. have worked together jointly.
Mr. Borgerson: If I can offer an addendum to that, I was recently in Brussels and had personal conversations with the deputy chairman of NATO who is keenly interested in having NATO be more active and more a part of the solution, whatever that might be, in the Arctic. I know NATO is looking in that direction.
Senator Cochrane: You say you know Professor Byers.
Mr. Borgerson: Yes.
Senator Cochrane: With melting sea ice and the potential for greater commercial shipping, how problematic are these disputes, and how would you like to see the Canadian and the U.S. governments proceed together?
Mr. Borgerson: I think they have the danger politically of being made larger than they otherwise should be.
I would add that I think it is not helpful that the U.S. has not signed the Law of the Sea because that would also help in cooperating on these issues.
I believe, in reading Michael Byers' testimony on my way here, he commented — perhaps it was Mr. Huebert — that these are really no-risk opportunities for the United States and Canada to come together and talk about how else we might cooperate. At the end, if Canada approaches the U.S. or vice versa, and we sit down and, after honest and careful reflection, realize that the status quo is fine or there are not areas to cooperate, nothing is lost.
On the other hand, we can sit together and deepen areas where we cooperate now — like the suggestion of the commission — and formally institutionalize that which, in my opinion, is key. To take things like your Arctic Waters Pollution Prevention Regulations with an American review and twist and make that a common standard across North America, there is nothing but our two countries to benefit from that.
I think really that spirit of cooperation should govern the day. As I attempted to highlight in my opening remarks, that requires both sides rethinking their relative positions.
On the Canadian side, we might exhale on issues of Arctic sovereignty and some language that I think is used for political ends perhaps — maybe it is not the most useful from a diplomatic point of view. Likewise, from an American perspective — and this is a position I advocate when I have the opportunity — we should look closely at the Canadian position and be willing to compromise, perhaps, on that. Ideally, it involves some other grand arrangement as well.
Senator Cochrane: I would like to talk for a moment about the gesture of the Russians planting their national flag. You know all about that, of course, on the ocean floor near the North Pole.
Mr. Borgerson: Yes.
Senator Cochrane: We have heard from Canadian government officials that this is merely a photo opportunity and a political stunt. When officials appeared before us they were rather unperturbed by it. However, Ron Huebert, who appeared before us a few weeks ago said that we can say it is ours all we want, but it is what you do with it. We have said the Northwest Passage is territorial water, but we refuse to do anything about it.
These were his words. I would like to hear your thoughts.
Mr. Borgerson: After that, I wanted to write the Russians a thank-you note because they got this on the front page of the papers. The irony is, in the end it might be in part that Russian flag-planting that helps the Law of the Sea get through the U.S. Senate. In a lighthearted manner, I guess I am thankful for that.
In terms of the international relations and diplomacy of it all, it is a photo opportunity, nothing more than pure symbology. Planting flags went out of vogue in the 15th century as a way of claiming territory. It has absolutely no standing in international law or diplomacy.
That said, the Russians have the ability to operate in the Arctic. The northern sea route or Northeast Passage is melting far faster than our side. The Russians are, I know, investing in the Port of Murmansk and other Arctic ports, looking to develop their considerable oil and gas resources in the Arctic. At the end of the day, while planting a flag is purely symbolic, and international law and the rule of law should govern such issues, there is also an old expression in history of ``might makes right.'' Having the ability to operate there and present a presence is worth something.
I would say from a legal perspective that planting a flag is not germane to the issues of carving up the continental shelf. Ostensibly, after they planted the flag, those submarines also collected sediment from the sea floor to analyze from a scientific point of view, and to bolster and support their article 76 claim that the Lomonosov Ridge is an extension of the Eurasian land mass. They would say it was a scientific mission that included a flag planting.
It is purely symbolic but you must also view it from the point of view of actual capacity to operate in the Arctic, and that reflects a Russian capability that is quite robust. My interpretation of the direction where Russia is heading is a commitment on the Russians' part to be further active in the Arctic.
Senator Cochrane: What should Canada do to strengthen its position there?
Mr. Borgerson: Canada should put its resources where its verbal commitments are. That is a diplomatic way of saying, ``put your money where your mouth is.''
Senator Cochrane: Yes, we know.
Mr. Borgerson: It is the same advice I would give the United States. You have to build ships. It is one thing to give a speech and it is another to actually physically operate there. Canada needs that ability.
It is a bit controversial to be said in the United States because they would think article 234 has been over-applied. In negotiations of the Law of the Sea, my understanding is that was a trade between the U.S. and Canada — we would get the right of naval mobility and free transit through international straits if Canada could get the right to protect its environment that article 234 allows. However, I think the Arctic Waters Pollution Prevention Regulations should be made mandatory.
There is a danger if you have a Canadian set of rules and an American set of rules and then perhaps a Russian set of rules, et cetera. Ideally, you have one seamless set of rules applied pan-Arctic wide. Ideally, you have the U.S. and Canada taking their limited resources and jointly applying them to the ships already here and which will only increase in number.
Building ships is foremost amongst that.
Senator Cochrane: The Canadian government announced last year they would have eight new armed icebreaker patrol vessels. However, from what you said earlier, I am not sure if you think that will go through because you said wait and see until it happens.
Mr. Borgerson: I am skeptical. I know there are some problems with their applicability. In fact, I think they have been called slush-breakers by skeptics as well. They will be operated by the navy instead of the Coast Guard and that presents some real problems.
First, the benefit the U.S. Coast Guard has is that we wear numerous mission hats that are complementary to us in the end. We regulate the private industry; we are a law enforcement service; we are a military service; and we do search and rescue and break ice, of course. We have all these mission sets which are the product of, over history, various services coming together under one roof that allows the Coast Guard to, on the one hand, be sort of a humanitarian regulatory body, and on the other hand, be a law enforcement and sovereignty presence. I am not sure that, from my perspective, Canada has quite worked that out between its Coast Guard and navy.
I would have to give more thought to putting those ships in the navy. I would be curious to hear what honourable senators think about that, but I am not sure that is the most prudent decision.
Senator Cowan: Thank you for your interesting presentation. I would like to take you up on your offer to tell us a little about the current state of play with respect to the UN Convention on the Law of the Sea. We have heard a good deal about it and know there are difficulties. There are politics in the U.S. as in Canada, and I assume that plays some part. I would be interested in two aspects: where we stand and what the prospects are.
Second, we are coming into an election in the U.S. What should happen if it does not get done? What are the consequences of the continued refusal of the — I was going to say ``failure'' — U.S. to ratify?
The next point is — because they may be connected to your comments about re-examining our respective positions with respect to Arctic sovereignty in the interests of working together as cousins to provide a regulatory regime for the protection of us all — I suppose you could extend that to include Russia.
I am interested in knowing how far you could go down that road without hitting the point beyond which you could not continue without settling who owns it. For example, is it a question in the end of who gets the benefit of a natural resource — whether the fishery or mineral, oil or gas rights? Is that the ultimate problem? If it is simply a question of coming up with a set of rules on protection of the environment, traffic lanes and navigational systems, it would seem at least possible to go pretty far down the road and simply leave aside the question of who owns it. We have a common interest in providing a regime to deal with the natural resources and the protection of the environment.
Mr. Borgerson: I will begin with the second question because it was most recently offered. I will paraphrase and ask: Do we really have to go there on a final legal termination of the status of the Northwest Passage? First, this is not just a U.S. versus Canada dispute. Others, in particular Europeans, share the U.S. view that it is a strait and not Canadian internal waters. It can be unhelpful to paraphrase this as an ``us versus you'' or vice versa.
That leads to the answer to the question — do we have to go there? No, we do not have to go there. To the earlier point about what happens in the Arctic at the end of the day, I hate to use the expression ``de facto sovereignty'' because that would cause the U.S. navy to cringe and be a non-starter. However, both countries must ask what they want out of the situation in the Arctic. Both countries want the long list of things that I mentioned earlier, which you reiterated in terms of safe and environmentally responsible shipping, and so forth. We can have that without going there, which is why the first thing both countries should do is reaffirm the 1988 agreement. Using that, they could then build on some other institution whereby we might manage collaboratively the ships coming to the Arctic. In the end, the gentleman's agreement, or quid pro quo, on any formal arrangement made, the U.S. would have to protect legally and state very clearly its legal position. Canada would have to do that as well. It actually replicates our model negotiations. We spent about one-and-a-half days bickering over the legal definition of ``Northwest Passage'' and time was running out because the Arctic was melting and we had to get a flight home. We realized that, if we wanted to get anything done, we had to figure out how to manage this from a diplomatic point of view and get on with what we came to talk about. That is what the two countries should do.
As to a brief update on the Law of the Sea and where it stands and the prospects and consequences, it is a three-part question. Once again, it has emerged from the Senate foreign relations committee with an overwhelming majority of the votes. It was brought to the floor of the Senate for debate and a vote. Article 1 of the U.S. Constitution requires a two-thirds vote for the Senate to provide its advice and consent to treaties, which is 67 votes. The problem is that the Senate Majority Leader is now a Democrat, Harry Reid, from Nevada. He likely has enough votes but one never knows for sure, and, in an election year, that can be tricky. At the moment, it is out of committee and is now in the hands of the Senate Majority Leader to schedule it on the Senate calendar for debate. Based on procedural rules, the minority Republicans in the Senate, although not by many seats, will discuss how long the debate continues. Those who would like the treaty to pass would like a brief one-day debate, hold the vote and have the treaty in place. However, the danger of a filibuster exists. The few dissenters in the Senate who tend to be very isolationist in their view of American foreign policy, think that the treaty will limit U.S. freedom of action in U.S. sovereignty. While cloture requires fewer votes, you still might be able to stop debate and have a vote, and there still might not be sufficient votes to pass the treaty.
Without going into much detail, this is at the highest level of the executive branch in the U.S. government to try to make the case to the Senate that they need to get on with it. Last week, there were hearings before the Senate where U.S. Deputy Secretary of State John Negroponte and others asked the President to reiterate his interest, as have various branches of the executive government. In Washington, that is how politics works.
As to the prospects for going forward, if it is not on the calendar, the chances that it will happen during the general election are quite slim because things tend to wait until the President is determined, after which, with some certainty, things will press forward.
We are collecting our science and data with our icebreaker for a possible article 76 claim, but we cannot formally submit that claim. We do not have scientists formally on the commission to participate in the review of other claims, such as those of Russia. While some say customary international law is good enough because we have declared, although we have not signed the treaty, that we abide by its rules and so forth. An argument can be made that the treaty serves as a kind of contract and you have to sign it not only to be bound by the responsibilities but also to get the rewards it brings, not only in the Arctic but in the world and, in particular, for the rights of our naval mobility. That position would be lessened by not signing this treaty. Ultimately, the treaty will pass. If it does not happen in the next six weeks or so, you will see little action on it until long into 2009. It also depends on how seats change in the Senate with the upcoming election.
Senator Adams: I believe that I understand what you are saying about another country, but we are Canadian and we have people living in the Arctic. Look at the map and you will see the yellow area is Nunavut and the pink area is the Northwest Territories in the Western Arctic. The majority are Inuvialuit along the Beaufort Sea. I live up there.
Are the people of Canada and other countries concerned about the people who live up there or are they concerned only about Arctic sovereignty? With the land claims, Nunavut has over 40 per cent of the land close to the water and Canada has only 60 per cent. People have been operating up North for so many years — the rangers, the military with their exercises. Every time they travel, they have to have an Inuit with them. The Inuvialuit know the waters in the Arctic and the ice movements. People live there between Grise Fjord and Resolute Bay. They went up there in 1953 for Arctic sovereignty. Why are we still talking about Arctic sovereignty when we settled Arctic sovereignty in 1953. People from Northern Quebec were relocated. I met the man who was five years old when he went up there and today he is 53. He lives in the northern communities and is a good leader. He is genuinely concerned about this. I went up two years ago to drive by snowmobile to Deborah Island from Grise Fjord. He asked me what is going on here. The Americans do not recognize Arctic sovereignty. Now, we had a commissioner here from foreign affairs about a month ago. They work with the Americans, Russians and Danish. He told us the same thing about the flag there, that it was only for the photo.
It is due to the mapping of the bottom of the Arctic Ocean. According to the commissioner, there is another eight years before that mapping is finished in the Arctic sea. They are talking about going up to 200 hundred miles. They are talking about building the navy. Previously, Mr. Turner was here, captain of the Coast Guard, and he was not very concerned about having the navy up there. He thought they should have the RCMP and rangers. There should be a change of policy in the future. They call the navy down in the east. They need the navy to go through icebreakers.
In the future, who will protect our sovereignty? The people out there are familiar with the land, water and the sea. We should work with them instead of people from the south going up and trying to protect Arctic sovereignty. We have 80-per-cent unemployment in Nunavut. People up in Nunavut are familiar with living up there and the weather. I do not know what the answer is. We are not talking about how the Americans do it.
Mr. Borgerson: Could you help me with the question?
Senator Adams: Why should they have to be concerned about the Americans or a border going from Alaska up to the Arctic sea? Two or three weeks ago, Americans found oil up there, over 400 billion barrels, and now we will give it to the Americans. When will we start? The Prime Minister was supposed to work on Arctic sovereignty two years ago, but nothing has happened in the government.
Mr. Borgerson: I think you are speaking broadly about the tensions between Inuit communities that have been there since time memorial and the changes that are happening, both climate and the increased activity that that spurs. In some ways, in a macro adaptation point of view, people have called the Arctic the canary in the planetary coal mine. Those living there are the canaries, and we have a responsibility to the canaries. I say that with utmost respect. The statistic I have heard is that one million people actually live in the Arctic, which is a significant number.
I can tell you that the Coast Guard has recently begun trying to incorporate those Americans who live on the Alaskan side into what the U.S. evolving policy might be. I think Canada is perhaps a model for how we may do that. Last week, Rear Admiral Brooks, the District 17 commander, made a town hall tour from village to village on the Alaskan north shore to ask what is going on, what changes have been seen and what input they would like to have in the process. We are new to that, and a lot of that is internal to Alaskan politics as well. You make an excellent point, and the U.S. should perhaps follow Canada's example.
I do not know if you follow the Shell leases in the Beaufort Sea and the status of that. The U.S. mineral management service put those up for bid a few years ago and expected a relatively small bid, in the millions. The winning bid was in the billions. I raise that because Shell was actually sued by an interesting consortium of a powerful environmental NGO in the United States who is worried about the environmental impact but does not necessarily support whale hunting, and the Inuit who were afraid that the increased activity would interfere with the traditional whale hunt and the migration patterns of the whale. At the moment, that is in the Ninth Circuit Court, which is in San Francisco. Shell has said it is too late on a decision so it will not do any activity this coming summer. According to legal scholars I have talked to and those familiar with the tale of the case, they do expect that they will be given a green light, and the activity will begin in 2009.
I was with the CEO of Shell in New York about a week and a half ago, and I asked him about Shell's intentions in the Arctic. His answer to me was that there is a massive supply problem for resources in this world. If you project ahead as a major oil company, even looking at new energy supplies like biofuels, wind, solar and so forth, there is a major shortfall. Coal has to form part of that, as well as oil and gas. He said that as a responsible energy company, if exploration is allowed in the Arctic, given this demand and the growth of India and so forth, they will do it in an environmentally friendly way with all the regulatory procedures required, but they will go there.
Perhaps in this joint commission established between Canada and the United States, there would have to be a strong native voice to act both as counsellor and to help shape better policy. At the end of my foreign affairs piece, I raised a historical example of the Franklin expedition. They ran aground and were stuck on the ice and on foot and were too proud to ask the Inuit for help and died in the cold. We might learn lessons from that.
Senator Robichaud: In your presentation you said that Canada needs to exhale a bit on these sovereignty issues. Are you thereby saying that we are overdoing it and that somehow it is not important for Canada to assert our sovereignty over that territory? We have Canadians, Inuit, who have been living there forever, as far as we know. What exactly do you mean by that?
Mr. Borgerson: I was waiting to be called on the carpet for that comment. In my opening remarks, I wanted to highlight my sensitivity to sovereignty issues to Canadians. I am sensitive to that. I think that in any successful negotiation, both parties have to be willing to compromise. If neither party is willing, if you come to the table firmly entrenched with your positions as strong as they are, you can see what you agree on and disagree on, but to compromise you need agreement of both and it is not a compromise if only one person agrees. It requires two, and a negotiation requires both parties to be willing to re-evaluate their position on an issue.
The comment in terms of exhaling was directed more towards what I read in Canadian papers about the political rhetoric of Arctic sovereignty. The United States has made some decisions in its foreign policy in the last few years that have been less than popular. In terms of sheer statistics, our poll numbers have dropped in terms of what others abroad think of us, and I think that is true for many Canadians. It can be very easy in a Canadian campaign to try to get points by saying things about Arctic sovereignty that are veiled guises of keeping the Americans out and we will catch their navy trespassing and those kinds of things.
The tone I was trying to strike was that there was a lot of merit on both sides. I do not know if you read Professor Byers' 60-page, single-spaced paper tracking the historical claim of Canada that goes back to 19th century treaties. It is a compelling document. There are a lot of arguments in there that I find persuasive. On the other hand, the U.S. government's position, as well as those of other governments, also holds a lot of water.
The main theme I would like to leave today is that, if we are to strike a compromise on how we might manage shipping coming into the Arctic in the future, it will require both sides to be willing to come to the table and talk. To do that, you have to have a certain dynamic and environment to have a successful negotiation. That was the spirit in which that comment was made.
Senator Robichaud: How do we compromise on sovereignty?
Mr. Borgerson: It goes back to Senator Cowan's question: Do we have to go there? To me, the 1988 agreement, while not perfect, works. The alternative is that the Canadian position is saying sovereignty is something not to compromise on. The U.S. position is saying it is an international strait and we are not going to compromise on that. It is to essentially maintain the status quo.
The ice will melt regardless of whether we maintain the status quo or not. At some point in the future, as a reality, there will be increased shipping in the Arctic. We can discuss and debate what the balance of that would be.
I think trans-Arctic shipping will take much longer to develop than regional shipping. I personally would like to see a North American Arctic in which the U.S. and Canada have worked out some of these issues and not maintained the status quo. We are not in our best positions to manage the ships that are coming without redressing the issues we need to look at.
Senator Robichaud: How would the United States lose if they were to agree or see the Canadian side of sovereignty issues over there and then want to negotiate, recognizing the sovereignty, a treaty for the international passage?
Mr. Borgerson: The biggest problem is legal precedent. It is not so much the Northwest Passage. It is the Strait of Malacca, the Strait of Gibraltar and other strategic straits. The fear is, even if the U.S. went to great lengths to formally and diplomatically say that is not the case, Iran could try and control shipping going through the Straits of Hormuz and point to Canada and say, sorry United States, these are our internal waters.
The United States navy, which since its founding has had naval mobility and presence as a cornerstone, will not go there. I did not think I would be quoting Admiral Alfred Thayer Mahan today, but he wrote the seminal text on naval strategy, called The Influence of Sea Power upon History, that the Naval War College in Newport, Rhode Island, considers one of its seminal texts.
In that, the idea of the United States projecting naval force is one of the cornerstones of our defence strategy and policy. It covers how we invested billions of dollars into what is the most formidable naval force in the history of the world.
From a Pentagon perspective, that is a large issue and one that, like I say, they might want to rethink in Washington. You asked the question of why they say that. That is why. They say, frankly, that they are right, based on their interpretation of the Law of the Sea.
Senator Robichaud: What would be the equivalent of the Canadians exhaling on sovereignty on the American side?
Mr. Borgerson: I wish we were as intense about Arctic issues as the Canadians, but the reality is we are not. If you wanted me to try to draw a parallel elsewhere in our foreign policy, I can try to do that.
I should also note there is an internal policy review within the U.S. government now. There is a good chance you will see a new formal U.S. policy coming from the White House, possibly within the next few months, which will address these issues. If so, I suspect it will re-emphasize the U.S. commitment to naval mobility.
The point of exhaling is just not applicable to the United States because in the presidential election, you do not have Barack Obama, Hillary Clinton and John McCain squaring off over their interpretations of the Northwest Passage. It has not been mentioned once in the campaign. I would like them to inhale first, and then maybe we could exhale later. We need to take it more seriously and focus on it. That was one of the comments I tried to make in my opening remarks.
Senator Robichaud: You understand how serious we are about sovereignty. The point that you make, the lower 48 states are unaware —
Mr. Borgerson: Relatively unaware.
Senator Robichaud: — relatively unaware of what is going on and what the Arctic is, which is not only islands and stretches of water. There are people living there who claim that as their home. I would think we have a right to say that this is Canada; we have rights to govern. Sovereignty is important for those people.
Mr. Borgerson: No one disputes Canada's sovereignty over the land or the islands. To my knowledge, perhaps I may be proven wrong, there is full agreement between the United States and Canada that Canada exerts sovereignty over its people, over its land and territory and over all the islands in the Canadian Arctic Archipelago. That is not up for debate. The issue is the legal interpretation of the Law of the Sea as it applies to the seaway and the water between and amongst those islands.
With respect to your point of who exerts sovereignty, perhaps that speaks to Senator Adams' comments as well; the United States is not looking to exert sovereignty over Canadians living in Canada. While some cartoonists might try to draw that in a newspaper, it is not the reality.
What is at issue here is a far narrower issue, but a very important one, and that is managing the vessels that will ply those waters. That is totally separate from sovereignty over territory.
Senator Hubley: There is another issue we feel is important to our sovereignty, and that is the scientific evidence we are acquiring through the mapping of the seabed — the continuation of the continental shelf, where that ends and was that originally part of the land mass, and is it still part of the land mass.
For us, it is not as simple as opening up the waterways and having people come through. I think, as you have heard here this evening, our sovereignty in the North involves the people who live there and their resources.
I would like you to perhaps comment on that because their resources extend into the waterways. Their livelihood and ability to survive depends on that. Is that something that you would hear discussed in different forums?
Mr. Borgerson: Absolutely. Again, I think it is important to make a distinction between sovereignty over lands or islands and that over water. When talking about water, you have to further make a distinction between ships that have a right of passage to sail the world, which carry 90 per cent of the world's cargo and which globalization requires, and a country's right of sovereignty to control the resources of those waters. They are very different things.
On one hand, you can have a country controlling the rights to fishing and deep seabed mining and the sorts of things that you are talking about.
That is separate from a vessel built in Korea, flagged by Panama, crewed by a Russian, insured in London, financed in Singapore, and I could go down the list. You have an industry that is international and complex, with maritime law and the Law of the Sea as well as others. I do not know if you have read article 234, but it is only two sentences long. The Arctic Waters Pollution Prevention Regulations are far longer than two sentences.
From a security perspective, the United States has a ton of initiatives, such as the SAFE Port Act, the Container Security Initiative and so forth, in which we are attempting to exert sovereignty over that international shipping so we can protect our ports.
There are two issues that need to be separated. I believe Canada's regulations are voluntary and not mandatory. Is that right? People want science and ice-mapping information that Canada provides and, if they get into trouble, for the Canadian Coast Guard to come help them. I am not an expert on Canadian law, but to my knowledge Canada has not made it compulsory for vessels to comply with those rules, which includes vessel construction standards and so forth, which are also recommendations.
At the end of the day, you cannot get insurance if you are operating a jalopy up there, and people will not take a multi-million-dollar investment and sail it to a hazardous environment unless they have dotted their Is and crossed their Ts. No responsible businessman would do that. That is a separate issue from fishing and oil and gas.
That brings into question what I think is an embarrassment between our countries: We have not worked out an arrangement on the disputed area in the Beaufort Sea. That goes to the heart of your question relating to the exclusive economic zone in which countries have a right to control their resources up to 200 nautical miles from their baseline. That is separate from the Law of the Sea which relates to the safety of shipping. That also speaks to the International Maritime Organization to which, in my opening remarks, I suggested that the U.S. and Canada jointly provide leadership so we might have a mandatory polar code.
Senator Hubley: My next question deals with security versus sovereignty. Does the United States look at this area as vulnerable from a security standpoint? How much does that influence their decision? Obviously, if they are not putting their Coast Guard in place, it is not doing a lot.
Could you comment on that? You might comment on RADARSAT as well.
Mr. Borgerson: I will address those questions separately because I think they are separate issues. The first is security and the second is RADARSAT, which I am not an expert on, but will weigh in on delicately.
First, I will differ with others you have heard from previously, particularly Canadians. As I said, this in my own negotiation, it is inaccurate to say that the United States is worried about security from the point of view of a weapon of mass destruction being smuggled through the Northwest Passage. In every conversation I have had on this issue with those in the United States who work this, that is inaccurate.
The United States' concern is one of environmental stewardship, one of safety, one of fisheries and regulations and so forth, but not one of al Qaeda smuggling a weapon of mass destruction through the Northwest Passage.
The reality is we are having a hard enough time locking up the Port of Los Angeles and Long Beach, which has a lot nicer weather than the Arctic. If I am a terrorist and I want to get my one nuclear weapon that I have been working on for 10 years at great expense and risk, and I am intent on wreaking as much havoc as possible, I will not send it on potentially the most dangerous route, through the most dangerous ocean, on a ship that will have the least likelihood of getting to where it is going and putting all those eggs in a risky basket.
We are starting to get off the issue of the Arctic here, but it is in answer to your question. The way the United States governs its security protocols is it has a program called C-TPAT, which is a Customs trade arrangement in which we cooperate with other ports. We have U.S. personnel on foreign ports where we have trusted shippers. Customs has an algorithm where they input data in a ``Ten Plus Two'' program to come up with a score on risky containers versus less risky ones. We inspect the ones we think are most risky and hope we discover the weapon of mass destruction.
I have a colleague at the council, Stephen Flynn, who is really the world expert on this. I think that approach needs work. We have hardly defeated the drug war, and there is still quite a bit of cocaine in the United States. I would hate to apply that to the terrorist context.
My point is that is an issue perhaps in the future. It is not at the top of the American agenda when approaching the Arctic and Arctic shipping.
To your point about RADARSAT-2, I read previous testimony, and that is where I learned most of what I know. I might contrast that with a process in the United States called the SIFIUS process. I do not know if you have heard about it. This is a process in which the executive branch brings the stakeholders from across government and looks at transactions where foreign governments would be buying U.S. divisions of companies that might have a national security application. Through the SIFIUS process, the government can say, ``There is no problem here, everything checks out; there is no risk to American national security.'' Once it has a green light, the deal goes through. What has happened a couple of times in the entire history of the SIFIUS process is they may find that in fact this may not be in the interests of U.S. national security, so the government will take its responsibilities to block that sale for it to not happen.
To my knowledge, there is no equivalent of a SIFIUS process in Canada. It seems to me that RADARSAT-2, in the United States, would classically fall into the SIFIUS regime. As a committee, one might look at the U.S. process as a model. In the end, the Canadian government must determine whether or not it is within its national security interests. The U.S. has a procedure for that and uses it frequently.
Senator Watt: I enjoyed your presentation and your openness to finding a solution. The problem does not exist yet, but it could become a problem.
Many of my concerns have been addressed by Senator Robichaud as well as Senator Hubley. Nevertheless, I would like to echo Senator Adams who stated that this question of asserting sovereignty is a big concern to the Inuit as well as to Canadians as a whole. I will go as far as saying I understand your reason why that may not be a good area to visit because it has international influence over other countries and nations. The fact that a certain precedent has been set throughout the world in terms of access to various canals and seaways — I understand your point.
Nevertheless, Senator Adams and I both come from the same community. Senator Adams relocated himself on the basis of securing Arctic sovereignty back in 1953. In other words, he left my home town. I remember him leaving when I was not even a teenager yet. I believe he was a teenager when he left. He was 19. I guess I was not much more than seven years old at the time.
This is an issue because it is our livelihood, our economy, our social life and our culture. We know well when the new set of elements coming from the outskirts, wherever that may be, will have a tremendous amount of influence on our future, which is, as you know, pretty shaky. We tried to keep the Arctic frozen as long as we could but Mother Nature decided to take its own course and there is little we can do about it when that happens.
One of the issues that continues to concern me is knowing there will be increased traffic and activity in the area. I am not sure whether the Americans will be any better off than Canadians in terms of the ships. It seems that the two countries have a lack of not only the infrastructure but also the tools needed to operate and to safeguard the environment of the area.
If there is a crisis in the Arctic where Senator Adams and I live, we will be right in the middle of it, whether it is a major oil spill or other disaster. Where will we go? That keeps coming back to me again and again over the years. Would we be better off to try to work out some arrangements with Russia if they are more capable of looking after the Inuit interests. That has been talked about among the Inuit at the circumpolar conferences for a number of years. We know for a fact that the way it is today will not stay that way. Just like Americans and Canadians, we dream too. It is our life.
I will ask you a question following along the questions of Senator Hubley. I would like to extend your answer with regard to the sea bottom, the continental shelf and the slope from the continental shelf. If I understood you correctly, you stated that this is not the issue.
Mr. Borgerson: It is an issue but you have to separate it from the issue of regulating shipping for safety. That is a different issue than delineating the limits of the continental shelf. My point was simply that they are separate issues.
Senator Watt: I understood you to say that. Nevertheless, when you are dealing with access above the water, you are going over the tops of the entrance to Canada, which is important to Canadians. We are Canadians and, as Inuit, we know there are resources under the seabed, the continental shelf and its extension. This is important to the Canadian economy.
If we move in the direction of working out a joint management regime, a kind of co-management, then the next step to be taken concerns what lies underneath. You would prefer to leave that out at the moment. Do I understand that correctly?
Mr. Borgerson: I think not. There is an established procedure under the Law of the Sea in article 76 such that, if a country wants to claim continental shelf beyond the 200 nautical miles, it must do the science, which all Arctic nations are doing, submit its scientific case before a UN commission on the limits of the continental shelf, which is made up of technical experts and scientists who review the science and submission in a closed-door session and then give, as the treaty technically says, their advice on the submission. Russia initially submitted in 2001 exactly what we are talking about for its territorial shelf whereby it claimed that the North Pole flag planting is somehow tied to a right. That is the process by which Canada would claim additional continental shelf.
If Canada wanted to unilaterally exert its sovereign power and decide to turn its Arctic into a park to protect native lifestyles and try to limit economic development in the area, then, as a sovereign nation, Canada can do what it wants to do. Of course, that would not affect decisions made on the Alaskan side of the border such as the Shell leases with the United States. The largest issue, in my view in looking at a map we have here, is Russia and the development of Russian oil and gas. The estimates are that the Russian Arctic controls 586 billion barrels of oil equivalent, which is both oil and gas combined at 75 per cent gas and 25 per cent oil. The best-guess estimate is that it amounts to 25 per cent of the world's unproven reserves. Projecting ahead, this might not be within the next two years but certainly will be within the next two decades. You might not have the issue because it is up to Canadian internal politics in Canadian democracy, of deciding how Canada's resources are managed. However, you will have increased shipping of not only oil and gas but also tourism, fishing and, at some time, transocean shipping that could potentially be coming into Canada's waters. That raises the issue of all the other things I addressed earlier in my testimony.
As to the U.S.-Canadian border possibly extending that line and the economic zone, each country's submission would be done unilaterally and would be a sovereign submission before the UN commission on the limits of the continental shelf per the technical details outlined in article 76 of the treaty. The commission reviews it and says whether it meets the criteria.
It does not mean that the U.S. and Canada might not collaborate in addressing this long list of issues. In the process of that negotiation, as they do now with ice mapping and scientific and technical work, they might work together in mapping the sea floor. In that way, when the submissions were sent to the UN commission, they would fit nicely together. The U.S. and Canada potentially claim similar areas of the extended continental shelf as per the article 76 process. I see that as another area for two countries that currently have great scientific cooperation. However, I am not qualified to talk about the role of the Inuit and their voice in Canadian government and how Canada manages the resources. That is a separate issue from a foreign-flagged vessel sailing through the Arctic.
Senator Watt: Perhaps if we could work out a harmonized effort with the United States and Canada in two particular areas — access to the corridor and the seabed — then both countries would be in a much better position with their submissions to the UN commission, knowing that other countries have similar interests in the same area under the sea.
Mr. Borgerson: ``Harmonize'' is exactly the word I would use. There is much to gain for two countries who share so many things, such as NATO, security matters and economics. We are our respective largest trading partners. Hopefully, we might approach all these issues in a cooperative manner to achieve harmony, which is the goal. So yes, senator, I would endorse that approach.
Senator Baker: You have been very vocal in the United States about the Law of the Sea. Certainly, a lot of people listen to you when you talk about it, and they quote you and so on. If I were a newsperson covering this meeting tonight, or someone listening or watching on television as they undoubtedly will over the next few days, I would say that the main story is that you are recommending a joint commission, I presume, with precedent in the South Pole.
You are recommending the same thing be done up north, that the United States and Canada get together. The United States is the slowest of all nations to recognize the Law of the Sea; Canada is the second slowest nation to recognize the Law of the Sea; and Denmark is the third slowest nation to recognize the Law of the Sea.
I would like to ask you a twofold question. By the way, I just read Indonesia's application to the commission to the outer limits. They propose here, in their interpretation of extending their jurisdiction, that they would be able to control and stop people from dragging sponges and molluscs off the sea bottom — in other words, to stop the foreign draggers that populate our coast. That is what is in the Indonesian submission, and in a good many of the other submissions.
Are you suggesting that we get together and form some sort of a pact because you are hoping that the U.S. will ratify the Law of the Sea? The President of the United States took your advice and said he wanted it done, but it may never be done by the U.S. We are going to form this joint commission and a pact to make joint efforts while Russia did everything legally, and in the year 2001 followed the law and made a legal submission. Here we were, we did not follow the law, and are you suggesting then the joint effort to make up for the fact that we just have not recognized the Law of the Sea in North America?
Mr. Borgerson: I guess I might start with, ``If only President Bush did listen to me!''
Senator Baker: Well, he took your advice on his advocacy.
Mr. Borgerson: You raise a lot of excellent points. I will attempt to do justice in addressing them. If I miss some, remind me and I will come back to them.
I cannot claim full credit for this notion of an Arctic navigation commission. In previous things I have written, I have had several op eds in the New York Times that suggested something like that, although I did not call it exactly that. There were journal articles and the media stuff that you have discussed, but that exact title was a product of the totally unofficial, unsanctioned, private negotiation that we had here in Ottawa two months ago, which produced a list of recommendations that you saw.
They have absolutely no bearing whatsoever between our two governments other than you had in a room, in my opinion — including the former U.S. ambassador to Canada who served in a Republican administration after September 11 — some of the wisest people as it relates to this issue, sticking to their guns but still trying to figure out where we might work together.
I guess what the news story might be would be recommendation 9 that came out of that document, which listed that. Then in my traveling to Ottawa here today, it would be my further endorsement of that recommendation — that it was not an American proposal, it was a joint proposal between a team of Americans and a team of Canadians after several intense days of discussion by respective national interests on that issue.
Your point of our laggardly, inexcusable negligence in signing the Law of the Sea is noted. It is an embarrassment for our country and I desperately hope, as I know many do, that the U.S. joins this treaty as soon as possible. We helped negotiate it, we stand to benefit from it, and it is in our interest that the Senate signs up for it. If we do not, shame on us for all the rights and responsibilities that we miss out on because of that treaty.
That said, I am not advocating that a commission and some sort of deal with Canada would then make up for our lack of signing the treaty, or somehow that some arrangement with Canada would make up for the fact we have been late into the game. Rather, I see that as a win-win for both sides whether we sign the treaty or not.
It goes back to some of my earlier comments suggesting a two-pronged strategy in which we shore up U.S. sovereignty in the Arctic. I think the top of that list includes signing a treaty; it can be done a lot faster than building new icebreakers.
Then we do the other things that I know Canada is looking at doing as well — building ships, having increased Arctic infrastructure, raising our level of expertise and knowledge from the government working those issues, increasing our regulatory authority as it comes to statutes and laws by which to govern ships, and better thinking on how we apply article 234 as it relates to the Alaskan side of those waters. We do not have an equivalent to Canada's Arctic pollution prevention regulations. We lack anything like that.
Whether we cooperate with Canada or not, the United States needs to get on with those things which I view as unilaterally shoring up our interests in the Arctic. That said, I think it is a win-win to establish this commission and then cooperate on the areas that have been discussed before.
I would end with an important point of clarification between the 1954 Antarctic treaty and Arctic proposals. I am not an Antarctic expert, but there are some major differences between the Antarctic treaty and the Arctic. One is a continent and the other is the ocean. The geopolitical contexts were totally different during the Cold War in which the U.S. and the Soviet Union had enough proxy wars going on elsewhere. It was in their respective interests to ``freeze'' the territorial claims in the Antarctic, and the various states that had made those claims, and essentially set it off for scientific interests only.
I think it is entirely unrealistic for the Arctic. I am skewered on both sides of this issue. On the one hand, some Americans feel that even being willing to negotiate with Canadians on this is giving up U.S. sovereignty and freedom of action and so forth. That has been very much the spirit of the day for the last few years in the American foreign policy. In many ways, in my opinion, it is not in my country's interest.
On the other hand, many environmentalists do not like what I have to say either. They lament the fact that the Arctic is melting in the first place. They think that getting more hydrocarbons out of its resources further exacerbates the problem and we might turn it into a giant park or preserve. I think that also is unrealistic.
My thesis is you could come somewhere in the middle. You can have development, but do so in a responsible stewardship way in which the countries can both look out for their national interests and also protect the environment and their citizens. There could be a mistake between comparing the Arctic and the Antarctic because they are very different.
Senator Baker: Yes, but you suggested the commission to head off problems on the horizon, as they did in the South Pole with the conflicts that were on the horizon.
You do recognize, and I appreciate this, that the Law of the Sea is the Law of the Sea, and a procedure as you outlined in article 76, allows the United States and Canada — Canada especially — together with the United Nations, to take over an area equal in size to the three Prairie provinces of Canada. Yet successive governments have refused to do so because of their coziness with the U.S. government who convinced them not to do it. I think most observers would conclude that.
Your submission is that, if you are on the outside of the Law of the Sea and have not ratified it, you cannot play the game inside. When you make your application to the commission, the commission is made up of representatives from all those foreign nations who are perhaps at odds with you, like Russia would be.
My concluding question to you is this: Why do you really and honestly believe that Canada and the United States are, as you called them, malingerers? I think 155 nations have ratified the Law of the Sea, and yet the United States and Canada for some unknown reason have not. You suggested a reason a moment ago, which does not make any sense. Although I have heard it quoted many times in opposition to your argument, I do not think they are afraid that they would have to negotiate with someone in order to take something off the ocean floor beyond their 200-mile zone. Why do you really believe that we have so flouted international law in Canada and the United States since the Law of the Sea was enacted in 1984?
Mr. Borgerson: That was well done. Wow. I did not think I would come to Ottawa to take my lumps for my country failing to ratify the Law of the Sea, but I suppose I have to, as an American. It is deeply frustrating for me. I do not know what else to say other than I have been advocating as strongly as I can and will continue to do so as long as I can. I will be in Washington, D.C., tomorrow furthering the cause and the just mission that the United States signs this treaty. It is incredible that we have not. If I get lumps here as an American because we have been behind the ball on that, then I will take them.
It is not just the Law of the Sea. This speaks to a much broader debate and force that is taking place within U.S. politics now. It is not a new debate either. Our founding fathers had similar ideological debates as well. I will spare you a long history lesson. I have taught enough courses on that. In essence, you have one school of thought that believes the United States is overly limited and restricted by signing off on international treaties, not just the Law of the Sea. I could list a long list of treaties that sometimes we even negotiated but the politics have not worked to get them through the Senate.
In my opinion, I think that is a shame and sometimes our darkest chapter in American history, but also there have been treaties proposed that have not been in our interests that the United States and any responsible American government has been right to object. An example is the Kyoto Protocol. We get a lot of bad press for not signing up for that, but that was a very flawed treaty. Should we have signed up for a flawed treaty to get something? Let us not open that can of worms.
On the other hand, though, the League of Nations was an American idea. It was Woodrow Wilson's fourteenth point at the end of World War I that the League of Nations would prevent another world war. After the United States secretary of state and the French foreign minister signed the Kellogg-Briand Pact, we outlawed war. There have been moments in our country where we have had just pure and deep commitments to international law and treaties and the ideas behind them. Of course, famously, and this is the tragic Shakespearian end of the story, the U.S. Senate sank the League of the Nations and we did not sign up for that treaty.
This is not a new debate, and the Law of the Sea needs to be thought of in that context of the several centuries of tension in the United States between the two schools of thought. That said, in my opinion and that of other sober analysts, many of whom served in Republic administrations, including this president — whose reputation is not one of — I need to be careful here. In this ideological tension, let us say he is not known as a Woodrow Wilson when it comes to that historical example of American foreign policy, yet he strongly advocates that the United States should sign this treaty.
Every living chief naval officer in the navy has endorsed this treaty. The Coast Guard has endorsed it. Leading energy multinational corporations in the United States have endorsed it. Environmental NGOs endorse it. It is not often that you find environmental NGOs, big oil and the military and the president all in agreement on a treaty, yet they are in this case, and it is just the procedural rules of the Senate that have prevented it from happening.
I hope to leave you with a sense of optimism that the U.S. will sign this treaty at the end of the day. I have no idea, of course, what actually will take place, but I can assure you that not only myself but others far more important than me are working with every ounce of energy they have to try to help our Senate do the right thing and pass this treaty.
The Chair: Speaking of the procedural rules of the Senate, we have now come to the end of the evening. The questions have been penetrating. I think you will be our only witness from the United States, but you have added a dimension to this discussion that we have not had before. We appreciate that. This is a work-in-progress for us, and we are trying to sift through the pros and cons. Thank you very much for coming.
Mr. Borgerson: Thank you for the honour to be here.
The committee adjourned.