Arctic Marine Shipping Assessment - Governance of Arctic Shipping
The governance of shipping activities in the Arctic might be described as a complicated mosaic. The Law of the Sea, as reflected in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), sets out the legal framework for the regulation of shipping according to maritime zones of jurisdiction. Other international agreements address specific elements of shipping such as marine pollution prevention standards, ship safety, seafarer rights and qualifications and liability and compensation for spills. In addition, Canada and the Russian Federation have adopted special national legislation for ships operating in icecovered waters within their EEZs. Descriptions of international law, including as reflected in the UNCLOS, are included for the benefit of the reader and are not intended to constitute interpretations.
A wide range of actors affect the law, policy and practice applicable to shipping in the Arctic. In addition to governments, shipowners, cargo owners, insurers, port authorities, trade and labor union associations, among others, may be involved in determining when and where shipping in the Arctic should occur and under what conditions.
Governance of shipping is characterized by efforts to promote safety, security, protection of the environment from damage by accident, as well as harmonization and uniformity in international maritime law and standards. The International Maritime Organization (IMO), a specialized agency in the United Nations system, addresses a broad range of issues pertaining to international shipping, including maritime safety, security and environmental protection. Other intergovernmental organizations work closely with the IMO in the governance of international shipping. For example, the International Labour Organization (ILO) has played a seminal role in the establishment of minimum basic standards for seafarers’ rights.
The IMO acts as secretariat for most international maritime conventions and facilitates their implementation through the adoption of numerous codes and guidelines aimed at operationalizing and
facilitating the implementation of international rules and standards. International conventions and related protocols become binding only on those states that choose to become parties. Upon ratification of a convention, states must formally implement it into their national maritime regulatory regime. States can, however, legislate the provisions of a convention or protocol without necessarily becoming a party.
An explanation of the governance of shipping would not be complete without noting the critical role played by standard form contracting and related “good practices” developed by industry. For example, in contracts for carriage by sea the carrier must prepare against foreseeable risks and provide a seaworthy ship for the voyage, which must be pursued without deviation or delay and with due care for the cargo or passengers. These standard forms have been recognized and applied by courts around the world.
1] Differing national viewpoints over what waters may legitimately be claimed as internal and what waters constitute straits used for international navigation have yet to be fully resolved and could give rise to future disputes concerning the exercise of jurisdiction over shipping activities.
2] Coastal state authority to regulate foreign shipping in the Arctic Ocean in order to prevent, reduce and control marine pollution was bolstered by Article 234 of UNCLOS. However, the precise geographic scope of coverage (waters covered by ice most of the year within the limits of the Exclusive Economic Zone) and the breadth of regulatory powers, in particular the extent to which a coastal state may unilaterally impose special construction, crewing and equipment standards, given the requirements that such standards must give due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence could give rise to differing interpretations.
3] The IMO international voluntary Guidelines for Ships Operating in Arctic Ice-covered Waters for the safety of ships and seafarers in the Arctic are currently under review. This review provides an opportunity to assess and strengthen guidance in the area of ship construction, equipment and operations and to consider the need for a legally-binding code in the future.
4] Safe navigation in ice-covered waters depends much on the experience, knowledge and skill of the ice navigator. Currently, most ice navigator training programs are ad hoc and there are no uniform international training standards. For example, this could be addressed by developing training standards for navigation in polar conditions and in Arctic safety and survival for seafarers that could be incorporated into IMO’s Standards of Training, Certification and Watchkeeping (STCW 78/95).
5] The International Association of Classification Societies (IACS) has developed Unified Requirements for member societies addressing essential aspects of construction for ships of Polar Class. The IACS Unified Requirements for member societies are incorporated by reference into the IMO Guidelines for Ships Operating in Arctic Ice-covered Waters. If the application of the harmonized Polar Class were to be made mandatory, then it could be an effective way to strengthen safety and environmental protection in Arctic waters.
6] Specific international construction requirements for cruise ships operating in polar waters have not been adopted. The cruise ship industry has formed a Cruise Ship Safety Forum to further develop specific design and construction criteria for new vessels, but it remains to be seen how navigation in polar waters will be addressed.
7] The International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978 (MARPOL) sets out minimum international standards for operational discharges and emissions from ships which are also applicable to Arctic waters. Pursuant to Article 234 of UNCLOS, coastal states may unilaterally impose additional, non-discriminatory requirements within the limits of their Exclusive Economic Zone (EEZ) when certain conditions are met. At this time, some national standards for regulating ship-source pollution in the Arctic are not consistent among Arctic states.
8] Stricter environmental standards have neither been proposed nor established by Member States through the IMO for the Arctic. For example, under MARPOL the Arctic Ocean could be designated as a “special area” where more stringent than normal discharge standards would apply under MARPOL Annexes I and V. Such an area could also be considered for designation as an Emission Control Area under Annex VI.
9] Expanded international shipping in the Arctic Ocean increases the possibility of introduction of alien species and pathogens through the discharge of ballast water and through hull fouling. The Ballast Water Convention imposes management (i.e., exchange and treatment) requirements on party ships to protect marine areas from the hazards posed by ballast water from ships and encourages establishment of regional approaches such as the Guidelines for Ballast Water Exchange in the Antarctic.
10] In the Arctic Ocean there is very little commercial or government salvage and ship repair response capacity. Salvage and ship repair are important to support commercial shipping and the lack of this capacity is of concern to the marine insurance industry.
11] The availability and cost of marine insurance is a major restraint on shipping in many parts of the Arctic. The underwriting of present shipping activities takes place only on a case-by-case basis.
12] The international liability and compensation regime is fragmented and limited, with separate conventions addressing pollution from oil tankers, bunker fuel from non-tankers, and hazardous and noxious substances from all ships. No convention or protocol addresses damage to the high seas beyond national jurisdiction.