Regulating Arctic Shipping Unilateral, Regional and Global Approaches

1. Regulating Arctic ShippingUnilateral, Regional and Global Approaches Adjunct prof. Erik J. Molenaar

2. Overview of presentation • Law of the Sea • IMO’s regulation of Arctic shipping • Bilateral & regional agreements • Gaps in international regulation of Arctic shipping • Options for addressing identified gaps • Regional governance and regulation of the marine Arctic

3. Law of the Sea • LOS Convention • Uniformity in international shipping • Exceptions • Coastal state jurisdiction • Flag state jurisdiction • General international law • Residual port state jurisdiction

4. Law of the Sea (cont.) • Article 234 • Entitlement • particularly severe climatic conditions • presence of ice covering such areas for most of the year • create obstructions or exceptional hazards to navigation • pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance • Restrictions • Non-discriminatory • Within limits of EEZ

5. Law of the Sea (cont.) • Article 234 (cont.) • Relied on by Canada and the Russian Federation • Impact of climate change

6. Law of the Sea (cont.) • Transit passage • Purpose • Article 37 of the LOS Convention “straits which are used for international navigation” • Suitability of usage or certain amount of usage • LOS Convention offers no guidance on relationship with Article 234 • Impact of climate change

7. IMO’s regulation of Arctic marine shipping • Arctic marine area • All IMO instruments will global scope of application apply in principle also to the Arctic marine area • Specific for the Arctic marine area • IMO Arctic Shipping Guidelines • Specific navigation standards • IMO Assembly Resolution A.999(25), ‘Guidelines on voyage planning for passenger ships operating in remote areas’ • Regulation V/6 of SOLAS 74 on the Ice Patrol Service

8. Bilateral & regional agreements • Contingency planning and preparedness • Canada-Denmark (1983) • Denmark, Finland, Iceland, Norway and Sweden (1993) • Norway-Russia (1994) • US-Russia Joint Contingency Plan (Bering and Chukchi Seas); • Canada-US Joint Marine Contingency Plan, • Other • Canada-US (1988) • Norway-Russia (1992) - Joint Norwegian-Russian Commission on Environmental Protection

9. Gaps in the regulation of Arctic shipping • Participation in relevant international instruments; • Lack of special global rules • no special IMO discharge, emission or ballast water exchange standards for the Arctic marine area; • no comprehensive mandatory or voluntary IMO ships’ routeing system for the Arctic marine area in its entirety or a large part thereof; • no legally binding special construction, design, equipment and manning (CDEM) (including fuel content and ballast water treatment) standards for the Arctic marine area. • Contingency planning and preparedness • Compliance and enforcement

10. Options for addressing gaps • Groupings • options for action within IMO; • options for Arctic states at the regional level, in their capacities as coastal states; • options for Arctic states and other states at the regional level, in their capacities as port states • other options for Arctic states in particular, individually or collectively • other options for all states, individually or collectively, in their capacities as flag states.

11. Options for addressing gaps (cont.) • Options for action within IMO; • make the IMO Arctic Shipping Guidelines mandatory; • pursue the adoption of special standards, for instance • special discharge or emission standards for all or part of the Arctic marine area under MARPOL 73/78; • special fuel content or ballast water treatment standards; • one or more mandatory ships’ routeing systems, whether or not in the form of an comprehensive ‘Arctic Sea Lanes’ proposal; • designate (part of) the Arctic as a PSSA,

12. Options for addressing gaps (cont.) • Options for Arctic states at the regional level, in their capacities as coastal states • agree on legally binding agreements on monitoring, contingency planning and preparedness for pollution incidents, as well as on search and rescue, including by designating places of refuge; • agree on a harmonized approach on enforcement and ensuring compliance, • implement the BWM Convention individually or in concert; • take other action under Article 234 of the LOS Convention

13. Options for addressing gaps (cont.) • Options for Arctic states and other states at the regional level, in their capacities as port states • develop a strategy for port state control in the Arctic (e.g. Arctic MOU?) • implement Article 218 of the LOS Convention in concert; • exercise port state residual jurisdiction in concert - relying in part on Article 234 of the LOS Convention.

14. Options for addressing gaps (cont.) • Other options for Arctic states in particular, individually or collectively • address the need for hydrographic surveying and charting; • encourage self-regulation by the shipping industry - for instance the cruise industry • urge IACS to restrict the margin of discretion of individual members • require the marine insurance industry to promote compliance with IACS Unified Requirements concerning Polar Class

15. Options for addressing gaps (cont.) • Other options for all states, individually or collectively, in their capacities as flag states • impose standards on their vessels that are more stringent than GAIRAS

16. Regional governance and regulationof the marine Arctic • Addressing governance and regulatory gaps, both sectoral and cross-sectoral • Arctic marine shipping in Annexes or Protocols • Respecting the primacy of IMO • Bodies established by the • Framework Instrument • Annexes or Protocols

17. Thanks! Questions?