Governance of ArcticMarine Shipping: A Short “Cruise”

Professor David L. VanderZwaagDirector, Marine & Environmental Law Institute, Dalhousie

University andCanada Research Chair in Ocean Law and Governance

Maritime Symposium 2008Halifax, Nova Scotia, Canada

November 2008

Introduction

• One Overall Image Helps Capture the Governance of Arctic Marine Shipping

• A “Complex Mosaic” with Four Main Parts to the Puzzling Governance Picture

1. The 1982 Law of the Sea Convention as the Overarching Framework

2. International Conventions/Documents Setting Governance Obligations for States To Control Shipping (International Public Maritime Law Framework)

3. International Conventions/Documents Aimed at the Shipping Industry and Relevant Practices of the Shipping Industry (International Private Maritime Law Framework)

4. Special National Legislative and Regulatory Requirements for Arctic Shipping (Canada and Russia)

• A Three Part Governance “Cruise” Follows with Victor Santos-Pedro Completing the Voyage by Highlighting Canadian and Russian Requirements for Arctic Shipping

1. The 1982 Law of the Sea Convention (LOSC) – The Overarching Framework

LOSC Establishes a “Delicate Balancing Act” Among the Powers of Coastal States, Flag States and Port States To Control Shipping

• Coastal State Jurisdiction and Coastal State Control Over Foreign Vessels

+ Varies According to Six Maritime Zones

+ Special Jurisdiction Bestowed by Article 234 for Ice-Covered Waters

+ Six Maritime Zones– Internal Waters

* Maximum Jurisdiction Over Foreign Ships, E.G.> Prohibition of “Risky Vessels” Such as Those Carrying

Radioactive Wastes, Oil Tankers> Zero Pollution Standards

* Various Ways To Establish, E.G.> Historic Waters> Straight Baselines Around a Deeply Indented Coastline or a

Fringe of Islands in the Immediate Vicinity of the Coast

* Exactly Which Arctic Water May Be Validly Claimed as Internal Has Been Contentious, E.G.

> Canada’s Enclosure of Its Arctic Archipelago with Straight Baselines Effective January 1, 1986

> USA and Other States Protested

– Territorial Sea

* 12 Nautical Mile Zone

* Coastal States Have Sovereignty But Subject to Right of Innocent Passage of Foreign Ships

> Coastal State Cannot Unilaterally Impose Design, Construction, Crewing or Equipment Standards

> Coastal State Can Designate Sea Lanes and Traffic Separation Schemes, Particularly for Ships Carrying Hazardous Cargoes

* Some “Tensions” Over How Far a Coastal State Can Control Transits of Foreign Ships, E.G.

> Imposing More Stringent Pollution Standards Than Those in the Global MARPOL 73/78 Convention

> Requiring Notice/Authorization for Ships Carrying Hazardous or Noxious Substances

– Contiguous Zone

* 12 N.M. Contiguous Zone to the Territorial Sea (up to a Seaward Limit of 24 N.M.)

* Coastal State Has Jurisdiction To Prevent Infringement of Its Customs, Immigration and Sanitary Laws

– Exclusive Economic Zone (EEZ)

* 200 N.M. Zone Measured from Territorial Sea Baselines

* Coastal State May Only Adopt Pollution Prevention/Control Laws Applicable to Foreign Ships If in Conformity with Global Rules/Standards Adopted through IMO

* Coastal State Has Very Limited Enforcement Powers, E.G.

> Actual Arrest and Detention of a Foreign Vessel Only Allowed If a Violation Causes Major Damage or a Threat of Major Damage to the Coastline or Marine Resources

> Only Monetary Penalties May Be Imposed

– Continental Shelf* All Five Arctic Coastal States Have Extended Continental Shelf

Claims Beyond 200 N.M. (Russian Federation and Norway Have Already Made Submission to Commission on the Limits of the Continental Shelf)

* If “Legitimated”, Extended Claims Would Give> Rights to Mineral Resources> Rights to Sedentary Species

* Very Limited Role for a Coastal State to Interfere with Navigational Rights (E.G. Establishing 500 Metre Safety Zones Around Drill Ships or Production Installations)

– International Straits* Coastal States Bordering a Strait Retain Very Limited Powers over

Foreign Ships Because of Their Right to Transit Passage, E.G.> Only Global Pollution Standards> Sealanes and Traffic Separation Schemes, Only with IMO

Approval

* Application of International Straits Regime in the Arctic Has Been Subject to Controversy

> What Degree of Use Is Necessary to Transform an Area into an International Strait?

> Example of USA-Canada Disagreement over the Status of the Northwest Passage

+ Special Coastal State Jurisdiction Bestowed by Article 234 of LOSC

* Coastal States Granted Special Powers To Adopt and Enforce Pollution Prevention and Control Laws in Ice-Covered Waters, E.G.

> Special Construction and Crewing Standards

> Pollution Prohibitions

* Various Questions of Interpretation, E.G.

> Exactly What Waters (Ice-Covered for Most of the Year) Are Subject to the Special Controls?

> What Is the Significance of Granting Special Coastal State Powers Only in the EEZ?

• Flag State Control

+ The Mainstay of Shipping Control– Obligation of Flag States to Apply and Enforce International Shipping

Standards to Their Flagged Vessels– Exclusive Flag State Jurisdiction on the High Seas Beyond National

Jurisdiction with Limited Exceptions

+ A State’s Warships and Other Ships Used Only on Government Non-Commercial Service Enjoy Sovereign Immunity– Cannot Be Inspected and Prosecuted by Other States– Flag State Required To Ensure That Such Ships Comply as Far as

Practicable with International Standards

• Port State Control

+ Port States Have Broad Inspection and Enforcement Powers over Ships Voluntarily in Their Ports for Alleged Pollution Violations

+ Port States Allowed To Prevent a Ship from Leaving Port of a Ship Is Unseaworthy and Threatens Marine Environmental Damage

2. International Conventions/Documents Setting Governance Obligations for States To Control Shipping Fall into Three Major Categories

• Conventions/Codes Covering Ship Safety and Seafarer Rights and Standards in General

• Conventions/Codes Covering Vessel-Source Pollution in General

• Specific Guidelines for Arctic Shipping (To Be Covered by Victor)

• Conventions/Codes Covering Ship Safety and Seafarer Rights and Standards in General

+ Maritime Safety

Four Key Agreements (A Main Sail and Jibs)

– The Main Sail is the Safety of Life at Sea (SOLAS) Convention, 1974

Has 12 Chapters Addressing Key Components of Ship Safety, E.G.

* Chapter II-1 Covers Construction and Subdivision of Ship (For Example, Passenger Ships Have Subdivision Requirements into Watertight Compartments so Ships Will Remain Afloat in Case of Hull Damage

* Chapter II-2 Sets Out Fire Detection and Fire Extinction Requirements

* Chapter III Establishes Life-Saving Equipment Requirements, Such as Life Boats and Life Jackets

* Chapter IV Covers Radiocommunications (For Example, All Passenger Ships and All Cargo Ships of 300 Gross Tonnage or More on International Voyages Are Required To Carry Communication Equipment for Improving the Chances of Rescue after an Accident, Such as Satellite Emergency Position Indicating Radio Beacons (EPIRBS)

* Chapter V Deals With Safety of Navigation (For Example, Provides for Establishment of Mandatory Vessel-Routing under IMO Auspices)

* Chapter VII Addresses Carrying of Dangerous Goods, E.G.

> Part A Makes Mandatory the International Maritime Dangerous Goods (IMDG) Code

> Part C Covers Construction and Equipment of LNG Carriers and Requires Compliance with the International Gas Carrier (IGC) Code

* Chapter XI-2, Adopted in December 2002, Seeks To Enhance Maritime Security, E.G.

> Establishing the International Ship and Port Facilities Security (ISPS) Code

> Requires Ships To Have Ship Security Alert Systems (Not Raising an Alarm Onboard But Signaling a Security Emergency To a Shore-based Authority)

– Three “Jib Sails” on Maritime Safety* International Convention on Load Lines (1966)* Convention on the International Regulations for Preventing Collisions at

Sea (1972)* International Convention on Maritime Search and Rescue (1979)

+ Seafarer Rules and Standards

– General Rules and Standards for Seafarers Have Been Established Through a Fragmented Array of Instruments

* Standards for Decent Working and Living Conditions for Seafarers, Such as Hours of Rest and Work, Wages, Food, Medical Care and Accommodation, Have Been Set Out in Scores of International Instruments Adopted Since 1920

* A Majority of These Instruments Have Been Consolidated into a Maritime Labour Convention, 2006 (Expected To Come into Force by 2011)

* Basic Training and Certification Requirements for Seafarers Are Set Out in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (1978/1995)

– No Specific Legally Binding Standards for Seafarers Working in the Arctic or Antarctic Have Been Forged

* No Standardized Crew Training Courses Have Been Developed

* No Uniform Requirements for Training and Experience of Ice Navigators Have Been Agreed Upon

* No Special Requirements for Minimum Hours of Rest or Maximum Hours of Work

• Conventions/Codes Covering Vessel-Source Pollution in General

Also a Case of Main Sail and Jib Sails

+ MARPOL 73/78 the Main Sail

– Sets Vessel-Source Pollution Standards through Six Annexes* Annex I (Oil)

* Annex II (Noxious Liquid Substances)

* Annex III (Harmful Substances in Packaged Form)

* Annex IV (Sewage

* Annex V (Garbage)* Annex VI (Air Pollution)

– Considerable Pollution Still Allowed Especially for Oil, Sewage and Garbage, E.G.

* Oily Ballast Water from Tankers

(30 Liters Per Nautical Mile If Discharged While En Route and Over 50 N.M. Offshore)

* Untreated Sewage If Beyond the 12 N.M. Territorial Sea (Ship Must Be Proceeding at Not Less Than 4 Knots and the Discharge Must Not Be Instantaneous but at a Moderate Rate)

* Garbage (Allowable Deposits Based on Concept of Distance from Land, E.G. Cans, Bottles, Can Be Disposed of If Beyond 12 N.M.)

– Special Areas Can Be Established Through IMO Where Stricter Pollution Standards Can Be Made Applicable for Oil, Noxious Liquid Substances and Garbage

* Antarctic Declared a Special Area under Annexes I (Oil), II (Noxious Liquid Substances) and V (Garbage)

* Arctic Has Not Been Proposed for Special Area Designation* Annex VI Allows Special Sulphur Oxide Emission Control

Areas To Be Declared Where Sulphur Content of Ship Fuels Would Be Lowered for Designated Regions (1.5% m/m) from the Global Standard of (4.5% m/m) but Neither Polar Region Has Been Proposed for Special Treatment

– Global Standards for Garbage and Air Pollution from Ships in the Process of Being Reviewed and Strengthened By IMO

+ Four Other “Jib Sail” Conventions Round Out the Vessel-Source Pollution Regime

– London Convention 1972 and Its 1996 Protocol Governing Ocean Dumping

– International Convention on Oil Pollution Preparedness, Response and Cooperation (1990) and the Protocol on Hazardous and Noxious Substances (2000)

– International Convention on the Control of Harmful Anti-fouling Systems on Ships (2001)

– International Convention for the Control and Management of Ships’ Ballast Water and Sediment (2004)

* The Ballast Water Convention Encourages Regional Agreements on Ballast Water Control Especially for Enclosed or Semi-Enclosed Seas

* The Antarctic Regional Has Undertaken Studies of Ballast Water Practices from Ships Entering Antarctic Waters and Has Received IMO Endorsement of Guidelines for Ballast Water Exchange in the Antarctic Treaty Area (2007)

* Ballast Water Practices and Threats Have Ye to Be Placed on the Arctic Agenda

3. International Private Maritime Law Framework• Various Contractual Arrangements Between Private Parties May Also Govern

Shipping in the Arctic, E.G.+ Carriage of Goods Contracts+ Carriage of Passenger Contracts+ Marine Insurance Contracts+ Salvage Contracts

• Limitations Relating to Arctic Salvage and Marine Insurance Are Emphasized Among the Technical Report’s 28 Findings

+ SalvageIn the Arctic, there is little or no governmental or commercial salvage response to support commercial shipping. This is possibly less the case on the Northern Sea Route, where the Russian Federation maintains a substantial fleet in support of shipping. Generally, there is limited infrastructure for ship repair and/or salvage and pollution countermeasures capability based in the Arctic basin. (Finding # 21)

+ Marine InsuranceThe availability and cost of marine insurance is a major restraint on Arctic marine shipping. A major constraint continues to be the lack of an actuarial record to enable insurers to assess and cost the risk. However, the insurance industry appears to be willing to underwrite Arctic shipping on a case-by-case basis. The London market has published seasonal additional premiums for ships sailing to the Arctic. (Finding # 23)

• Various Conventions Channel Liability and Compensation To Private Parties for Pollution Damages

+ Oil Pollution from Tankers– 1992 Civil Liability Convention– 1992 Fund Convention– All Arctic States Parties Except USA

+ Bunker Oil Spills from Non-Tankers– International Convention on Civil Liability for Bunker Oil Pollution Damage

(2001)– Will Enter into Force 21 November 2008– Among Arctic States, Only Norway Is a Party

+ Hazardous and Noxious Substance (HNS) Spills from Ships– International Convention on Liability and Compensation for Damage in

Connection with the Carriage of Hazardous and Noxious Substances by Sea (1996)

– Not Yet in Force– Only Russian Federation a Party

End of Short Cruise!!

http://www.saskschools.ca/~gregory/arctic/sea/walrus2.jpg

The contributions of the following co-authors to the Arctic Marine Shipping Governance chapter are gratefully acknowledged:

Aldo Chircop, Erik Franckx, Hugh Kindred, Kenneth MacInnis, Moira McConnell, Angus McDonald, Ted McDorman, Sonja Mills,

Tony Puthucherril, Susan Rolston, Phillip Saunders, K. Joseph Spears