The Legal Regime of the Arctic Ocean Prof. Dr. Alexander Proelss (aproelss@internat-recht.uni-kiel.de)

1. The Legal Regime of the Arctic Ocean • Prof. Dr. Alexander Proelss • (aproelss@internat-recht.uni-kiel.de)

2. The “Safety in the North” Seminar 25-27 August 2010 I. Introduction: Is there at all a “legal regime of the Arctic Ocean”? • the Arctic Ocean is not subject to a comprehensive treaty regime; an “Arctic Treaty” modeled on the 1959 Antarctic Treaty of 1959 does not exist • but: this does not mean that a legal regime is not in place • “legal regime”: body of international norms, rules and/or principles applicable to an individual issue of international relations

3. The “Safety in the North” Seminar 25-27 August 2010 • Arctic Ocean is subject to a multitude of conventions which address, inter alia: • delineation and delimitation of the continental shelves (UNCLOS) • protection of the marine environment (UNCLOS; London Convention and Protocol; MARPOL) • protection of Arctic flora and fauna (ICRW; NAMMCO agreement; Polar bear agreement) • navigation (UNCLOS; SOLAS; MARPOL) • fisheries (UNCLOS; UNFSA; regional and bilateral agreements)

4. The “Safety in the North” Seminar 25-27 August 2010 • issues covered by these agreements differ significantly as to their nature and character: • e.g., delineation of the continental shelf (different to contractual delimitation) constitutes an unilateral act of the coastal State • it is generally accepted today that every coastal State has a continental shelf ipso facto and ab initio (see Art. 77 [3] UNCLOS) • ICJ: “inherent right” of the coastal State • Art. 76 (8) UNCLOS only awards the CLCS the mandate to give “recommendations” as to the outer limit of the continental shelf

5. The “Safety in the North” Seminar 25-27 August 2010 • therefore, coastal State does not “claim” a continental shelf; proclamations only refer to the expansion and limits of the maritime zone in question • consequence: any “claim” in contradiction to a recommendation made by the CLCS constitutes a violation of UNCLOS, namely of Art. 76 (8); however, due to the unilateral character of maritime delineation as well as the limited mandate of the CLCS, the illegality of such a claim is of a purely procedural nature • delineation of continental shelf in contradiction to CLCS recommendation does not render the establishment of the outer limit of the continental shelf invalid • due to different character of issues involved, negotiation of a comprehensive treaty regime is not a suitable option

6. The “Safety in the North” Seminar 25-27 August 2010 • legal regime of the Arctic Ocean is influenced by a multitude of different actors: • Arctic States • Arctic Council • IMO, ICAO • IWC, NAMMCO • indigenous people • indirectly: EU, other interested States, ISBA, CLCS,

7. The “Safety in the North” Seminar 25-27 August 2010 • position of the U.S.: • 2009 Directive on Arctic Policy, para. D 1.: “The most effective way to achieve international recognition and legal certainty for our extended continental shelf is through the procedure available to States Parties to the U.N. Convention on the Law of the Sea” • Annex II UNCLOS indirectly clarifies that the UNCLOS does not confer any right to submit information on their continental shelves to the CLCS to non-States parties, as Art. 4 of that Annex requires States to submit particulars of such limits to the Commission within ten years of the entry into force of this Convention for that State

8. The “Safety in the North” Seminar 25-27 August 2010 II. Continental Shelf Delineation in the Arctic: the Ridge Issue • Art. 76 (6) UNCLOS contains a lex specialis on the maximum seaward limit with respect to “submarine ridges”: in case a continental shelf covers parts of such a ridge, its outer limits shall under no alternative exceed 350 nautical miles • ridge issue is of overwhelming importance in the Arctic Ocean as the Russian, Canadian and Danish “claims” comprise parts of the Lomonosov and Alpha-Mendeleev ridges • Macnab 2004

9. The “Safety in the North” Seminar 25-27 August 2010 Macnab 2001

10. The “Safety in the North” Seminar 25-27 August 2010 Macnab 2004

11. The “Safety in the North” Seminar 25-27 August 2010 • Macnab relied on the 2,500 meters isobaths line located along the edges of the Alpha and Lomonosov ridges, as the 350 nautical miles cut off-line is located much closer to the coasts

12. The “Safety in the North” Seminar 25-27 August 2010 • Art. 76 (6) UNCLOS states that “[...] on submarine ridges, the outer limit shall not exceed 350 nautical miles [...] • while the ridge itself has to be cut out, the areas surrounding it can be claimed even beyond the 350 nautical miles line, if the 2,500 meters isobaths plus 100 nautical miles requirement (taking the coastline as point of origin!) is met • it does, however, not follow from this conclusion that the edge of the ridge itself can be used as the basis for establishing the 2,500 meters isobaths; this would result in every submarine ridge which clearly extends beyond the “regular” 2,500 meters isobaths line of the continental margin generating a “shadow” of continental margin of 100 nautical miles on each side

13. The “Safety in the North” Seminar 25-27 August 2010 Illustration of shadow cast around submarine ridge

14. The “Safety in the North” Seminar 25-27 August 2010

15. The “Safety in the North” Seminar 25-27 August 2010 III. Navigation • status of NWP and NSR is disputed • U.S.: NSR as such is a strait used for international navigation • if that would be true, right of coastal State to adopt laws and regulations relevant to transit passage would be more limited in comparison with innocent passage • see Art. 21 UNCLOS: coastal State may adopt laws and regulation relating to innocent passage through the territorial sea on, inter alia, “the safety of navigation and the regulation of maritime traffic, [and] on the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof (Art. 21 UNCLOS)

16. The “Safety in the North” Seminar 25-27 August 2010 • but note that “[s]uch laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.” (Art. 21 [2] UNCLOS) • see Art. 41 (4) UNCLOS: “Before designating or substituting sea lanes or prescribing or substituting traffic separation schemes, States bordering straits shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the States bordering the straits, after which the States may designate, prescribe or substitute them.”  no unilateral action possible in straits • however: as number of flags is decisive, position of the U.S. does not seem to conform with public international law

17. The “Safety in the North” Seminar 25-27 August 2010 • current Russian practice with regard to the NSR • Statement by the Chief of the Administration of the NSR: “In legal respect, the NSR, as defined by the Russian legislation, is a national transportational line. Russia being interested in development of international shipping through the NSR takes care of high standards of maritime safety and environmental protection.” • three sets of regulations: • Regulations for Navigation on the Seaways of the Northern Sea Route • Regulations for Icebreaker-Assisted Pilotage of Vessels on the NSR

18. The “Safety in the North” Seminar 25-27 August 2010 • Requirements for Design, Equipment and Supply of Vessels Navigating the NSR • Regulations for Navigation on the Seaways of the Northern Sea Route (based on Art. 234 UNCLOS) • Owner or Master of a vessel intending to navigate through the NSR shall submit to the Administration (Marine Operations Headquarters) a notification and request for leading through the NSR as well as the information on guarantee of payment of the icebreaking dues • inspection of vessel with regard to certain construction and equipment requirements

19. The “Safety in the North” Seminar 25-27 August 2010 • compulsory icebreaker-assisted pilotage established for the Vil’kitskogo Strait, Shokal’skogo Strait, Dmitriya Lapteva Strait and Sannikova Straits • new draft Regulations under way (reference to developments in international law) • Requirements for Design, Equipment and Supply of Vessels Navigating the NSR • particular requirements apply to the hull, machinery installations, systems and arrangements, stability and watertight integrity, navigational and communication facilities, supplies and emergency outfit, manning • lawful under Art. 234 UNCLOS???

20. The “Safety in the North” Seminar 25-27 August 2010 • if not, do these requirements correspond with the “generally accepted international rules or standards”??? • these standards could only derive from the “Guidelines for Ships Navigating in Arctic Ice-Covered Waters” of 2002 (adopted by IMO) • (P): Guidelines are non-binding (“soft law”); unclear whether UNCLOS also incorporates these rules (no ratification needed!)

21. The “Safety in the North” Seminar 25-27 August 2010 IV. Protection of the Arctic Environment • specialized instrument modeled on the Protocol on Environmental Protection to the Antarctic Treaty of 4 October 1991 does not exist • however, different to Antarctica, the Arctic Ocean is not a nature reserve but, as any other ocean area, open to sustainable use and development subject to the relevant rules of the law of the sea • authors who lament the lack of a comprehensive Arctic environmental protection regime seem to ignore that fragmentation is a well-known and regular phenomenon in the field of international environmental law

22. The “Safety in the North” Seminar 25-27 August 2010 • while any future exploitation of the continental shelf resources will certainly have an impact on the state of the Arctic environment, one must not ignore that the worse part of the diverse threats to the Arctic ecosystem results from global phenomena such as climate change • similarly, the Arctic region serves as a sink for many hazardous substances which have been introduced into the marine environment elsewhere and transported by ocean currents and airflows to the high north, where their further transport is prevented by low temperatures • against this background, it seems justified to conclude that protection and preservation of the Arctic environment should essentially (even though not primarily) be addressed on the universal plane

23. The “Safety in the North” Seminar 25-27 August 2010 • on the regional plane, cooperation of the Arctic States becomes manifest in several species protection treaties such as the 1973 Polar Bears Agreement, the 1971 Agreement on Sealing and the Conservation of the Seal Stocks in the North West Atlantic, and the OSPAR Convention • specific cooperation of the Arctic States has so far mainly taken place in the form of non-binding tools within the (non-binding) context of the Arctic Council • 1991 Arctic Environmental Protection Strategy (AEPS): establishment of a permanent working group scheme, the most important of the original four being the Arctic Monitoring and Assessment Programme (AMAP)

24. The “Safety in the North” Seminar 25-27 August 2010 • Stokke (2007): “The AEPS has strengthened environmental governance in the region in several ways. A legally binding Arctic environmental regime would not serve to enhance any of [its] functions significantly.”