1. Regulating Arctic Shipping Unilateral, 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 General international law
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 Restrictions
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 regulation of 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?