Regulatory Frameworks for Maritime Transport in the Arctic: Will a Polar Code Contribute to Resolve Conflicting Interests?

By Ole Kristian Fauchald

Senior Researcher, Fridtjof Nansen Institute & Professor, Department of Public and International Law, University of Oslo.

Shorten version. Full article is available as the PDF attachment at the end of this page in Grue John and Roy H. Gabrielsen (eds): Marine Transport in the High North, Det Norske Vitenskapsakademi/Norges Teknbiske Vitenskapsakademi, Novus Forlag,  Oslo, Trondheim, 2011, pp. 73-93

 

1. Introduction

There is general agreement that maritime transport in the Arctic will increase, but there is significant uncertainty regarding the extent of increase of such transport and its future character (Global Business Network 2008 and Molenaar 2009:293-4). This contribution discusses the ability of Norway as a coastal state to regulate maritime transport in the Arctic in light of the major interests associated with such transportation. As a coastal state heavily dependent on marine resources, Norway has significant interests in protecting the environment against damages from maritime accidents and pollution from maritime transport activities. But Norway does also promote other interests. As an important flag state, Norway defends the freedom of navigation. As a country with an open economy depending on international trade, Norway has a strong interest in cost effective maritime transportation.

Identifying an appropriate balance between such interests is not easy. There is significant tension between Norway’s interests as a coastal state and Norway’s interests as a nation depending on shipping. We shall focus on the extent to which Norway remains free to define an appropriate and effective balance between such interests.

The countries bordering the Arctic can be divided into two groups; those that are coastal states in relation to the Northwest Passage (the USA, Canada and Denmark / Greenland), and those that are coastal states in relation to the Northern Sea Route (Russia and Norway). This contribution will focus on the latter. In addition to transport through the Northern Sea Route, Norway and Russia have common concerns regarding maritime transport to and from Norwegian and Russian areas in the Arctic. Norway and Russia have a long history of cooperation in marine affairs, ranging from joint management of fish stocks to negotiations about delimitation of sea areas and continental shelves. This contribution will consider how Norway can cooperate with Russia in order to secure an appropriate balance between relevant interests.

This contribution shall first discuss Norwegian jurisdiction under the current international regime in the Arctic. Thereafter follows an assessment of how Norway’s regulatory jurisdiction may be affected by negotiation and adoption of a binding Polar Code. The final part of the contribution considers how Norway can ensure an appropriate balance of the interests should the negotiations of a Polar Code fail to provide appropriate results within a reasonable time frame.

2. Jurisdiction under the current regime

There is a complex web of international and national rules governing maritime transport in the Arctic. The United Nations Convention on the Law of the Sea (1982, UNCLOS) provides the basic regulatory framework for maritime transportation. It contains special rules for environmental protection (Part XII) and it singles out ‘ice-covered areas’ for special treatment (art. 234). Essential features of UNCLOS are that it resolves a number of jurisdictional issues and that it contains a basic framework relevant to the rules adopted by the International Maritime Organization (IMO). Hence, the treaties and guidelines adopted by the IMO must be understood in the context of international law as reflected in UNCLOS.

In 2002, thirteen years after the Exxon Valdez accident, the IMO adopted Guidelines for Ships Operating in Arctic Ice-covered Waters (Jensen 2007). Seven years later, the IMO adopted revised Guidelines for Ships Operating in Polar Waters, inter alia extending the 2002 Guidelines to Antarctica. Currently, the IMO has engaged countries in negotiations to revise these Guidelines and make them mandatory through an International Code of Safety for Ships Operating in Polar Waters (Polar Code).2

The IMO is supported by a number of non-governmental institutions that provide more specific guidance on how to fulfill international standards and determine whether requirements are fulfilled in individual cases. Of particular interest is the work of the International Association of Classification Societies (IACS), which adopted Unified Requirements for Polar Ships in 2006.3 These Requirements, which are widely applied, distinguish seven Polar Classes based on structural and machinery requirements.

In the following, we shall discuss Norway’s jurisdiction under the current regime. Due to the fact that international and domestic rules vary significantly according to geographical areas, we will have to distinguish between geographical areas in order to identify the issues that are relevant for the geographical area in question.

Pursuant to the principle of territorial sovereignty, Norway has full regulatory jurisdiction within its internal waters. Within the territorial sea, Norway has to respect the right of other states to ‘innocent passage’ (articles 17-21 of UNCLOS). According to article 21.2 of UNCLOS, Norwegian legislation concerning navigation ‘shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards’. This means that as long as a ship fulfills such standards, Norway cannot deny it passage through its territorial sea. The first issue here is whether Norway is allowed to enforce stricter standards than those following from the 2009 Guidelines. Due to the limited geographical scope of the Guidelines, this question is only4 relevant for the territorial sea around Jan Mayen and Svalbard (including Bear Island).

The first sub-question is whether the 2009 Guidelines shall be regarded as ‘generally accepted international rules or standards’. One Committee of the International Law Association has concluded that this phrase should be understood as making ‘compulsory for all states certain rules which had not taken the form of an international convention in force for the states concerned, but which were nevertheless respected by most states’, and that such rules and standards ‘are primarily based on state practice, attaching only secondary importance to the nature and status of the instrument containing the respective rule or standard’ (ILA 2000:33). The 2009 Guidelines state that they ‘are recommendatory and their wording should be interpreted as providing recommendations rather than mandatory direction’ (para. P-1.4). Due to their short existence, there is little state practice relating to these Guidelines. The above phrase was copied from the 2002 Guidelines, and coastal state practice, in particular that of Canada and Russia (see below and Vanderzwaag et al. 2008:50-68 and 73), indicate that coastal states have regarded the Guidelines as non-binding. Moreover, the current discussion on making the Guidelines mandatory through a ‘Polar Code’ supports the general impression that states do not currently regard the Guidelines as binding according to relevant provisions of UNCLOS. We may thus conclude that the 2009 Guidelines, at least so far, do not qualify as ‘generally accepted international rules or standards’ according to article 21.2 of UNCLOS.

Against this background, the next sub-question is whether Norway is free to adopt rules concerning design, construction, manning or equipment of ships in the territorial sea. For areas along the coast of the Norwegian mainland the answer is that Norway is bound to comply with ‘generally accepted international rules or standards’ adopted by the IMO. The answer is more uncertain for the territorial sea around Svalbard and Jan Mayen, since it can be argued that these areas are ‘ice-covered’ in the sense of article 234 of UNCLOS and thus that Norway has ‘the right to adopt and enforce non-discriminatory laws and regulations for the prevention … of marine pollution’. This provision applies ‘within the limits of the exclusive economic zone’ (EEz). It can thus be discussed whether the provision extends to the territorial sea (Chircop 2009:371 and 372). It is of significance that neither the 2002 Guidelines nor the 2009 Guidelines contain any provisions limiting their geographical scope to EEzs. In cases where both the territorial sea and the EEz qualify as ‘ice-covered areas’, it is the opinion of this author that the coastal state has at least as extensive regulatory jurisdiction within its territorial sea as it has within its EEz.5 We may thus conclude that Norway has the right to regulate maritime transport in accordance with article 234 in the territorial sea around Jan Mayen and Svalbard.

For other measures than those relating to design, construction, manning or equipment of ships, in particular discharge and navigational standards,6 Norway is in general free to adopt its own standards within the territorial sea, as long as such standards do not hamper the right of innocent passage (art. 17-21 of UNCLOS), are duly publicized (art. 21.3 of UNCLOS) and are non-discriminatory (art. 24.1 of UNCLOS, see also Tan 2010:295). In this context, it is of relevance that traffic separation schemes and recommended routes adopted by the IMO in 2006 have been located outside the territorial sea of the northern Norwegian mainland. These routes apply to ships in international traffic with a gross tonnage of more than 5,000, and they ‘have altered the sailing patterns of a considerable number of ships’ (Report 2008-9:47).

In the EEZ, Norway must respect the ‘freedom of navigation’ (articles 58, 87 and 90 of UNCLOS) with the reservation that Norway as a coastal state has certain rights to regulate transportation for environmental purposes (part XII of UNCLOS). Such regulation for the prevention, reduction and control of pollution from maritime transport must conform to and give effect to ‘generally accepted international rules and standards’ (art. 211.5 of UNCLOS). Norway has extended jurisdiction in areas of the EEZ that are ‘ice-covered’ (art. 234 of UNCLOS). One question is whether this rule only applies to areas around Svalbard and Jan Mayen (see above). There is some overlap between the geographical area covered by the 2009 Guidelines and the EEz of the Norwegian mainland. It can be argued that the overlapping area qualifies as ‘ice-covered’. While the Guidelines cannot be regarded as any authoritative delimitation of the geographical scope of application of article 234, they can arguably constitute evidence of states’ practice and opinio juris concerning the minimum extension of ice-covered areas (see art. 31(3)(c) of the Vienna Convention on the Law of Treaties). Norway could thus declare this area as icecovered for the purpose of article 234 and adopt relevant standards through legislation, as has been done by Russia and Canada (AMSA 2009:66-7). If other countries object to such a declaration, Norway would have a strong argument that such countries have the initial burden of proving that the area is not to be regarded as icecovered for the purpose of article 234. It can also be argued that Norway may extend such a regime to areas south of the overlapping area to the extent that Norway can demonstrate that there exist ‘severe climatic conditions and the presence of icecovering for most of the year’. In this case, Norway would have the initial burden of proof. Norway has significant regulatory jurisdiction in ice-covered areas, and, as has been indicated above, we may assume that its regulatory jurisdiction in these areas would not be limited by the 2009 Guidelines.

The areas beyond the territorial sea of Svalbard and Jan Mayen are in a different position. Norway has not established full EEzs in these areas. Norway established a Fisheries Protection zone around Svalbard in 1977 and a Fishery zone around Jan Mayen in 1980. These zones were established to regulate fisheries. Norway has not established any legal basis for regulating maritime transport in these areas. However, if Norway decides to extend its regulatory power, for example by establishing full EEzs around Svalbard and Jan Mayen, Norway would gain such regulatory jurisdiction in relevant areas as is set out in article 234. The extent to which the areas in question would qualify as ‘ice-covered’ would have to be subject to separate consideration. Most of these areas, but not all, would fall within the geographical scope of the 2009 Guidelines. Norway is free to establish an EEz around Jan Mayen, and it is not seriously contested that Norway may at least extend it jurisdiction to maritime transportation in the zone around Svalbard (Ulfstein 1995:421). Hence, it is mainly a political and not a legal issue whether Norway will extend its jurisdiction around these islands.

In sum, Norway’s regulatory jurisdiction extends as follows:

1. In the territorial sea along the Norwegian coast, its regulatory jurisdiction is in general limited to some discharge and navigational standards.

2. In the territorial sea around the islands of Svalbard and Jan Mayen, its regulatory jurisdiction extends to design, construction, manning and equipment of ships.

3. In the EEz along the Norwegian coast, its regulatory jurisdiction is in general limited to standards that give effect to ‘generally accepted international rules or standards’, but can arguably be extended to stricter standards for those areas that could be covered by article 234 of UNCLOS.

4. Norway could extend its jurisdiction in the zones around Jan Mayen and Svalbard, and could impose discharge and navigational standards, as well as standards for design, construction, manning and equipment of ships for those areas that would be covered by article 234.

Norway has not made use of its regulatory jurisdiction in accordance with article 234 or the possibilities it has to regulate maritime transportation in the zones around Jan Mayen and Svalbard. The analysis above indicates that the reasons why Norway has abstained from making use of its regulatory jurisdiction are political and not legal. Such political reasons may include potential consequences for negotiation and design of future international legal regimes.

3. Impacts on Norwegian regulatory jurisdiction of a Polar Code

Initially, it can be asked whether it is likely that a Polar Code will contain standards that would prevent Norway from applying requirements that would reflect an appropriate balance between relevant interests (see the introduction). Generally, it can be assumed that countries will more easily accept strict standards when they are non-binding than when they are binding. While there may be exceptions to such an assumption, it is not unlikely that the standards of a Polar Code will be weaker than the current Guidelines. In addition, it can be argued that the broader the geographical scope of application of such binding rules, i.e. their application to both the Arctic and the Antarctic, the more likely is it that their standards will be weaker. The fact that it took seven years to negotiate an extension of the 2002 Guidelines to Antarctic waters supports this point.7 Against this background, it is likely that a binding Polar Code will contain weaker standards than those that Norway could be interested in applying without a Polar Code.

We may distinguish between two ways in which a Polar Code may lead to ‘weaker’ standards. On the one hand, standards may be ‘less strict’ in the sense that the requirements imposed on maritime transport are less likely to ensure safety of navigation and protection of the environment. This would be the result that could most significantly prevent Norway from applying requirements that would reflect an appropriate balance between relevant interests. On the other hand, standards may leave a broader margin of appreciation to relevant actors, including states. The decision to base the negotiations of a Polar Code on a ‘risk-based/goal-based approach’ (Sub-Committee 2010:5) will ensure a broad margin of appreciation.8 Such approaches will open for subsequent specification of the standards by various actors, and the initial broad margin of appreciation of states may thus be limited. The longer term result of this approach may thus be ‘less strict’ standards, but it could also be stricter standards.

Assuming that a Polar Code would be ‘binding’ in the sense that it would contain ‘generally accepted international rules or standards’ according to UNCLOS (in particular articles 21.2 and 211.5), it can significantly affect Norwegian regulatory jurisdiction. As has been shown above, Norwegian regulatory jurisdiction is, at least for some geographical areas, closely linked to article 234 of UNCLOS. Hence, one essential question is how a Polar Code would affect the interpretation and application of article 234.

The 2002 and 2009 Guidelines contain no rules concerning their relationship to article 234. The relationship between the Polar Code and article 234 has not been discussed in the documents that have been published so far during the negotiations. Hence, states seem to avoid taking steps to clarify this relationship. Such an approach is most likely the result of significant differences in opinion among the participating states. Bringing the issue into the negotiations could significantly complicate the negotiation process and possibly prevent its successful conclusion.

Article 234 does not contain any reference to ‘generally accepted international rules or standards’. It can thus on the one hand be argued that the adoption of a Polar Code would not affect the freedom of states to adopt measures in accordance with article 234. On the other hand, it can be argued that such an argument would be contrary to the general approach of UNCLOS. For all  areas beyond the internal waters of states, the general approach of UNCLOS is to limit coastal state jurisdiction so that navigation in accordance with generally accepted international rules or standards can take place without interference. This argument finds additional support in the reference to the freedom of navigation in article 234: ‘laws and regulations shall have due regard to navigation’ (Brubaker 2002:70-1). Moreover, it can be argued that article 234 must be read in light of the subsequent development of and reliance on standards adopted by the IMO. Against this background, it is the opinion of this author that a Polar Code which does not explicitly state that it is ‘non-binding’ would limit the regulatory jurisdiction of coastal states in areas covered by article 234.

If we conclude to the contrary, i.e. that coastal states would not be prevented from adopting stricter standards than those following from a Polar Code for areas covered by article 234, we must also ask which consequences the Polar Code would have for the exercise of coastal state jurisdiction in such areas. Where coastal states exercise such jurisdiction, article 234 should be read as placing on the coastal state the burden of proving that such requirements pay sufficient attention to other states’ freedom of navigation and that maintaining such stricter standards are needed for specific purposes.

If the Polar Code is set up as a treaty, it will be binding for the states that accept it. Such states can no longer invoke article 234 as a basis for regulatory jurisdiction beyond what would be permitted under the Polar Code. Such a result would be in accordance with article 311 of UNCLOS. Norway has been appointed to head the Sub-Committee responsible for negotiating a Polar Code (IMO 2010:38). It would thus be politically difficult for Norway not to accept a binding Polar Code should the result of the negotiations be treaty obligations.

Against this background, it is not unlikely that the successful negotiation of a Polar Code could significantly limit Norwegian freedom under article 234 to adopt stricter standards than those set out in a Polar Code for maritime transport in areas under Norwegian jurisdiction. This may not be a problem in the current situation, since Norway has not made use of its opportunity to adopt such standards in areas that would be covered by a Polar Code. However, given that Norway may have interests in cooperating with Russia in matters regarding maritime transportation (see below) and that a Polar Code may not contain sufficiently strict standards, Norway may lose opportunities to ensure that shipping within its jurisdiction follow stricter standards than those set out in a Polar Code.

Moreover, even if the objective is to adopt a Polar Code within the near future, it is not unlikely that the negotiations may turn out to be a long-term undertaking. Currently, the objective is to make the Polar Code binding by the end of 2014, but in light of the time it took to negotiate the 2002 and 2009 Guidelines, this might seem overly optimistic. As long as Norway has a central role in the negotiations, Norway would probably refrain from adopting policies that would alienate other states participating in the negotiations, such as unilaterally adopting requirements that are stricter than those currently in place. It is thus likely that the negotiations as such will have a ‘chilling effect’ on Norwegian initiatives to secure an appropriate balance between relevant interests.

4. Norwegian and Russian cooperation regarding maritime transport

Before addressing questions concerning bilateral cooperation between Norway and Russia, we shall examine alternative approaches to develop rules concerning maritime transportation in the Arctic. The Arctic Council could arguably be used as a forum for setting standards for shipping. While the Arctic Council traditionally has not been regarded as a forum for standard-setting (Offerdal 2007:141-5), recent developments have changed this perception. At its ministerial meeting in Tromsш in 2009, the Arctic Council decided to establish a task force to ‘develop and complete negotiation by the next Ministerial Meeting in 2011 of an international instrument on cooperation on search and rescue operations in the Arctic’. This is to be a ‘legal instrument’ and the Task Force is headed by representatives from the USA and Russia. Thus, the argument that the Arctic Council is a ‘political’ and not a ‘regulatory’ body is no longer any major argument against its adoption of standards for maritime transport in the Arctic. However, in light of Guidelines adopted by the IMO and its current initiative to negotiate a Polar Code it can be safely assumed that the Arctic Council will not take initiatives to adopt standards for maritime transport in the Arctic, at least not legally binding standards (Molenaar 2009:319, Young 2009:81 and Chircop 2009:365-7). Moreover, the Arctic Council is composed of a limited number of states, mainly coastal states, and standards adopted by such an institution would not qualify as ‘generally accepted international rules or standards’ within the meaning of UNCLOS. It can also be mentioned that the Arctic Council does not have observer status at the IMO and vice versa (Chircop 2009:363-4).

Another forum for cooperation is the Barents Euro-Arctic Council. The members of the Council are Denmark, Finland, Iceland, Norway, Russia, Sweden and the European Commission. The Council has established a Steering Committee for the Barents Euro-Arctic Pan-European Transport Area (MoU 1998) which has as its objective to create ‘an efficient and integrated multimodal transport system of international significance in the Area’ (article 1 of the MoU). Among its priorities is the sea route along the Norwegian and Northwest Russian coast with connections to and from all the major Barents Sea ports. The Committee has had a focus on development of coastal shipping and on sea safety. According to the current action programme, the Committee will address the regulatory and legal framework in the sphere of transport, and coordinate its activities with those of other international institutions (BEATA 2009). Even if the Barents Euro-Arctic Council might thus be a relevant forum for setting standards for maritime transport, it is unlikely to take such initiatives in light of the role of the IMO and the fact that it has so far not been used as a forum for regulatory activities.

In relation to compliance and enforcement, it has been observed that ‘there is no regional approach by Arctic states or another group of states specifically aimed at ensuring compliance with applicable international rules and standards and national laws and regulations’ (Molenaar 2009:319).

Against this background, it is the conclusion of this author that the main option available to Norway beyond the ongoing negotiations within the IMO is to seek bilateral cooperation with Russia. While Russia and Norway have extensive bilateral cooperation on a broad range of marine issues, this author is not aware of any current initiatives to negotiate standards for maritime transport between Norway and Russia.9 Bilateral cooperation on standards for maritime transport between Norway and Russia could include consultations with the Arctic Council and/or the Barents Euro-Arctic Council. This could increase the legitimacy of such standards since countries depending on maritime transport in the region would have possibilities of ensuring that their concerns are taken into account.

There are several reasons why Norway should be interested in exploring the opportunities for cooperation with Russia with regard to standard setting for maritime transport. First, to the extent that maritime transport along the Norwegian coast is not destined for Norwegian ports, such transport would essentially be to and from Russian ports or aim for or come from the Northern Sea Route. If Norway should want to impose stricter standards on shipping along its coast, it has been pointed out that such standards could be made effective by giving ships incentives to sail through Norway’s internal waters or to use Norwegian port facilities (A.T. Falkanger 2007:343-4). While Norway could pass legislation that would only allow ships fulfilling certain standards into its ports or internal waters, such rules would not prevent ships that do not fulfill such requirements from sailing in the territorial sea or the EEz. It is hard to imagine incentives that would be sufficient to ensure that ships that otherwise would not comply with such stricter standards would make use of Norwegian port facilities or internal waters. Hence, to the extent that such ships are destined for Russian ports or the Northern Sea Route, such Norwegian rules and control mechanisms would be ineffective. Norway would thus depend on cooperation with Russia if it wants to pursue such strategies.

Secondly, Russia has adopted strict requirements applicable to the Northern Sea Route. Russia has thus demonstrated its willingness to make use of its regulatory jurisdiction under article 234 (Brubaker 2002:30, AMSA 2009:67and 71-3 and Franckx 2009:338-9).10 Arguably, Russia’s practice is stricter than what is allowed under the provision (Brubaker 2002:123-6). Norway, on the other hand, has chosen not to use its regulatory jurisdiction under article 234 and its jurisdiction to regulate marine transportation around Jan Mayen and Svalbard. The Norwegian and Russian policies in this regard thus differ considerably. Norway may benefit from trying to find a middle ground between the two extremes, i.e. accepting to introduce a stricter regulatory regime within Norwegian waters, while moving Russia in the direction of reforming its restrictive regime. In addition, it is essential for Norway to ensure that the regulatory regimes of Norway and Russia combined give appropriate incentives to vessels in the areas. Norway would thus have interest in ensuring that the Russian regulatory regime has an effective and efficient approach to preventing accidents and environmental harm. Coordination of the Norwegian and Russian regimes may also facilitate cooperation between Norway and Russia regarding enforcement of safety and environmental standards, and thus contribute to the effectiveness of such standards.

As shown above, a Polar Code may limit Norway’s right to adopt stricter requirements concerning shipping in areas covered by article 234. Moreover, Norway is subject to a strong political incentive against adopting restrictive regimes for maritime transport in areas to be covered by the Polar Code as long as the negotiations are under way. This is particularly so due to the leading role of Norway in the negotiations. The opportunity of Norway to approach Russia in order to coordinate their regulatory regimes in areas covered by article 234 is thus considerably affected by the negotiation of a Polar Code.

Finally, it could be of considerable benefit to the shipping industry if Norway and Russia would establish a coordinated regulatory regime for transport in the relevant areas. Such coordination would facilitate transport in the area, including the use of port facilities. It can be argued that a binding Polar Code will constitute such a coordinated regulatory regime. However, its successfulness in this respect would depend on whether Russia will accept a Polar Code and adjust its regulatory regime accordingly. Russia is a member of the Correspondence Group in which the Polar Code is currently discussed. But its membership in this Group is not necessarily any guarantee that the final outcome will be acceptable to Russia. Moreover, as pointed out above, the negotiations are based on a ‘risk-based/goal-based approach’ (Sub- Committee 2010:5) which means that coastal states may still enjoy a broad margin of appreciation after joining a Polar Code. The consequence may be that even if a Polar Code is accepted and implemented by Russia, significant regulatory differences between Russia and Norway may persist. There would thus be a need for coordination of Norwegian and Russian regulation regardless of a future Polar Code.

5. Concluding remarks

This contribution has shown that Norway has not yet taken measures to ensure an appropriate balance between interests associated with maritime transportation in large areas under its jurisdiction. While Norway has supported relevant processes within the IMO, the results of these processes have so far not been reflected in Norwegian regulatory reform.

This contribution has also indicated that major benefits may be achieved through bilateral cooperation with Russia in order to specify standards for maritime transportation that would ensure an appropriate balance between relevant interests. The current Norwegian priority of and approach to negotiations of a Polar Code may significantly delay and even prevent such bilateral cooperation. It is the opinion of this author that Norwegian authorities should explore how Norway can cooperate with Russia in order to define an appropriate balance between the interests associated with marine transportation in the Arctic. Such an initiative could possibly enhance the prospect of a successful conclusion of a Polar Code.

 

 

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