Governance of Arctic Marine Shipping: A Short Cruise

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Governance of ArcticMarine Shipping A Short
Cruise

• Professor David L. VanderZwaag
• Director, Marine Environmental Law Institute,
  Dalhousie University and
• Canada Research Chair in Ocean Law and Governance
  
• Maritime Symposium 2008
• Halifax, Nova Scotia, Canada
• November 2008

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• Introduction
• One Overall Image Helps Capture the Governance of
  Arctic Marine Shipping
• A Complex Mosaic with Four Main Parts to the
  Puzzling Governance Picture
• The 1982 Law of the Sea Convention as the
  Overarching Framework
• International Conventions/Documents Setting
  Governance Obligations for States To Control
  Shipping (International Public Maritime Law
  Framework)
• International Conventions/Documents Aimed at the
  Shipping Industry and Relevant Practices of the
  Shipping Industry (International Private Maritime
  Law Framework)
• Special National Legislative and Regulatory
  Requirements for Arctic Shipping (Canada and
  Russia)

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• 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

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• 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.
• Canadas Enclosure of Its Arctic Archipelago with
  Straight Baselines Effective January 1, 1986
• USA and Other States Protested

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• 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

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• 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

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• 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

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• 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?

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• 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 States 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

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• 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)

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• 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

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• 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)

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• 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)

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• 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)

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• 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

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• 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)

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• 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)

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• 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

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• 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

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• 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
  Reports 28 Findings
• Salvage
• In 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 Insurance
• The 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)

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• 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

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End of Short Cruise!!
http//www.saskschools.ca/gregory/arctic/sea/walr
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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