1. Climate Change and the Prospects of Increased Navigation in the Canadian Arctic: Some issues to consider for ICCMI 2008 Aldo Chircop Marine & Environmental Law Institute, Dalhousie University, Halifax, NS, Canada

2. The argument  IPCC:  “The Arctic is very likely to warm during this century in most areas, and the annual mean warming is very likely to exceed the global mean warming. Warming is projected to be largest in winter and smallest in summer. … Arctic sea ice is very likely to decrease in extent and thickness. It is uncertain how the Arctic Ocean circulation will change. “ (IPCC, 2007).  Summer ice disappearing at the rate of 3% per decade (USONR, 2001).  Significance:  “Reduced sea ice is very likely to increase marine transport and access to resources” (ACIA, 2004)  Ecological disruptions and northward movements of some marine resources will be likely (USARC, undated).  Dramatic decrease of Arctic ice by 2050 is conceivable.  Would a decrease in the ice cover necessarily result in reliable ice- free summer season commercial navigation?  If increased Arctic commercial navigation becomes likely, what additional measures in the interests of safety of navigation and environment protection would become necessary and by when?

3. Arctic fragility  The Arctic coastal and marine environment is arguably one of the most sensitive to human disturbance: hence the adoption of the law of the sea rule on ice-covered areas to justify higher standards of protection than the normal international norm (UNCLOS, 1982, Art. 234).  The Arctic has not been fully charted and some navigation charts are notoriously out of date (CMMC, 2006, per Potts, CCG).

4. UNCLOS, 1982 SECTION 8: ICE-COVERED AREAS Article 234 Ice-covered areas  Coastal States have the right to adopt and enforce non- discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.

5. Potential commercial navigation in the Arctic  The Arctic ocean proper.  Northeast passage (now known as the Northern Sea Route) through the Russian Arctic.  Northwest passage through the Canadian Arctic (consisting of a package of routes through the Canadian Arctic archipelago) between Europe and Asia (Wilson et al., 2004):  9,000 km shorter than the Panama Canal route  17,000 km shorter than the Cape Horn route

6. Potential Navigation Routes in the Arctic Source: Arctic Council, 2006

7. Potential maritime industry interests in the Arctic  Hydrocarbons and minerals.  Commercial shipping:  Asia/Europe/North America trades  Shipbuilding & shiprepairing  Insurance  Ports  Services (e.g., pilotage, salvage, etc.)  Fishing.  Tourism.

8. Decreasing ice cover is a fact, but how realistic is a concomitant increase in international commercial navigation through the Northwest Passage?

9. The optimists  Huebert, 2001:  Commercial navigation will become more feasible as the Northwest Passage becomes ice-free.  US Office for Naval Research, 2001; USARC, undated:  Summertime disappearance of ice in the Arctic Ocean likely by 2050: Canadian archipelago and Alaskan coast will be ice-free and navigable every summer by non-ice-breaking ships.  Northwest Passage will be open to non-ice strengthened vessels for at least one month each summer.  “Ice free” understood as a navigable Arctic with ice- infested waters.

10. The skeptics  CMMC, 2006 comments:  Falkingham (EC): although the Arctic summer shipping season may be extended by the end of the century (from 3 to 6 months), the NWP is not likely to become an east-west corridor because of extreme inter-annual variability.  Potts (CCG): virtually no infrastructure to support ships in the Arctic (no ship repair facilities, no fuel supplies; only one dock in the region, Nanisivik).  Barry: reinforced ships are more expensive to navigate in open water due to increased fuel consumption.

11. More skepticism  Griffiths, 2005:  “Unpredictability, not conditions clearly favourable to navigation, is the net effect of climate change on the Northwest passage thus far.”  Predictions of heavy use of Arctic North American waters by major shipping firms in 2020s & 2030s cannot be sustained, although increase of ships traffic to transport hydrocarbons, minerals and fishing vessels conceivable.

12. More from Griffiths  Although the Atlantic-Pacific navigation through the NWP is shorter through the Arctic than Suez or Panama canals, passage is not likely commercially feasible because:  Short navigation season (arctic summer).  Likely continued lack of predictability of ice movement.  Insufficient navigation charts/data for the region.  Higher expense of polar class vessels (additional equipment & training required under the IMO Polar Code).  Risks of delay.  Insurance costs.  Etc.

13. A sobering possible scenario (Wilson et al., 2004, based on Canadian Ice Service work)  Melting first year ice around the Queen Elisabeth Islands areas may permit old ice to drift into the Northwest passage, and a southern shift of the Beaufort Sea ice pack, thereby increasing the rate and supply of ice in the Passage.  Possible effects include blockage of the western Passage routes and drifting of old ice creating choke points in narrow channels.  Multi-year ice is extremely strong and dangerous, thereby increasing hazards to navigation and the marine environment.  Navigation in the North West Passage will continue to face a wide range of possible ice conditions.  A false sense of optimism?

14. Northwest Passages in the Canadian Arctic Source: Wilson et al., 2004

15. Canada’s sovereignty concern  Canada claims sovereignty over the waters of the Arctic archipelago and considers their status as internal waters. US protest.  If there is increased international shipping activity in the Northwest Passage, could its status change to that of an international strait? UNCLOS concerns.  Would protection under the Arctic Waters Pollution Prevention Act and UNCLOS Art. 234 on ice-covered areas be sufficient?  Or should Canada (and neighbours) consider MARPOL 73/78 special areas and PSSAs as potential tools?  Would the above be consistent with its sovereignty claim?

16. Work of the Arctic Council  Arctic Environmental Protection Strategy, 1991.  Arctic Council established in 1996.  Arctic Climate Impact Assessment, 2004.  Protection of the Arctic Marine Environment (PAME):  Arctic Marine Strategic Plan (employing an ecosystem approach).  Arctic Marine Shipping Assessment, 2005-2008 (led by Canada, Finland, US) – final report to be presented in fall 2008.

17. IMO Polar Code & IACS  IMO has started to anticipate the prospect of increased navigation in Arctic ice-covered waters by persuading IACS to move away from traditional hull classifications and towards polarworthiness (i.e., winterization of the hull and crew):  Guidelines for Ships Operating in Arctic Ice-Covered Waters, IMO Doc. MSC/Circ.1056, MEPC/Circ. 399, 23 December 2002 (IMO Polar Code, 2002).  Construction  Equipment  Operations  Environment protection and damage control  IACS responded with a unified approach.

18. Source: IMO Polar Code, 2002 Arctic Ice- Covered Waters for the purposes of the IMO Polar Code

19. Conclusion: Some issues for ICCMI 2008?  Compare the NWP to the Northern Sea Route in terms of likely development of new international polar navigation routes.  Does anything else need to be done from an international maritime regulatory perspective at this time? Is the Polar Code sufficient?  Colreg: how would these rules (e.g., action to avoid collision) apply in ice-covered waters?  Should MARPOL 73/78 special areas and possibly PSSAs be designated in the Arctic Ocean as a precautionary measure? Could this be done before there is an actual, imminent or reasonably foreseeable threat from international shipping activity? What would port reception facility requirements be in Arctic ports?  Salvage: what issues can be expected to arise? Places of refuge too?

20. More issues  With increased international navigation, what search and rescue regime is conceivable in the Arctic Ocean?  Should there be conditions/restrictions on the types of cargoes that can be moved through the Arctic?  Are the current compensation regimes sufficient to mitigate losses/damage in an Arctic environment?  Should commercial international cross-polar navigation become a reality, who should pay for the expensive infrastructure needed to support international shipping?  Using UNCLOS Art. 234, may a coastal state adopt standards for navigation in ice-covered areas higher than the international norm, and possibly without going through the IMO?

21. References  Arctic Council, 2006. Arctic Marine Shipping Assessment: The Arctic Council’s Response to Changing Marine Access. PAME, Progress Report, October 2006.  CMMC, 2006. Review of the Seminar “Canadian Arctic Issues in a Changing Climate,” organized by the Company of Master Mariners of Canada in conjunction with the Marine Affairs Program of Dalhousie University and Lloyd’s register, North America, December 2006 (revised January 2007).  Griffiths, 2005. F. Griffiths, “New Illusions for a Northwest Passage.” In M. Nordquist et al., International Energy Policy, The Arctic and the Law of the Sea (Leiden: Nijhoff, 2005), 303-319.  IMO Polar Code, 2002. Guidelines for Ships Operating in Arctic Ice-Covered Waters, IMO Doc. MSC/Circ.1056, MEPC/Circ. 399, 23 December 2002.  Huebert, 2001. R. Huebert, “Climate Change and Canadian Sovereignty in the Northwest Passage.” 2 ISUMA (Winter 2001).  IPPC, 2007. Intergovernmental Panel on Climate Change, Draft 4 th Assessment Report. WG1 report: The Physical Science Basis, Chap. 11 Regional Climate Projections, online: http://ipcc- wg1.ucar.edu/wg1/Report/AR4WG1_Pub_Ch11.pdf  Newton, 2005. G. B. Newton, “Coming to the Arctic: Oil, Ships and UNCLOS Plus.” In M. Nordquist et al., International Energy Policy, The Arctic and the Law of the Sea (Leiden: Nijhoff, 2005), 321-335.  USARC, undated. United States Arctic Research Commission, “The Arctic Ocean and Climate Change: A Sceario for the US Navy.” Arlington, VA.: USARC, undated).  USONR, 2001. US Office for Naval Research et al., Naval Operations in an Ice-Free Arctic. Symposium 17-18 April 2001 (Arlington, VA: US Office for Naval Research, 2001).  Wilson et al., 2004. K.J. Wilson, J. Falkingham, H. Melling and R. De Abreu, “Shipping in the Canadian Arctic: Other Possible Climate Change Scenarios”. Congrès IGARSS 2004 (Science for society: exploring and managing a changing planet) (2004 IEEE International Geoscience and Remote Sensing Symposium) (proceedings) (20-24 September, 2004, Anchorage, Alaska).