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Regulating Arctic Shipping Unilateral, Regional and Global Approaches

Regulating Arctic Shipping Unilateral, Regional and Global Approaches. Adjunct prof. Erik J. Molenaar. Overview of presentation. Law of the Sea IMO’s regulation of Arctic shipping Bilateral & regional agreements Gaps in international regulation of Arctic shipping

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Regulating Arctic Shipping Unilateral, Regional and Global Approaches

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  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?

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