Navigation Control of Coastal States on Arctic Passages: A Legal Perspective

Liu Huirong & Li Haomei

Navigation Control of Coastal States on Arctic Passages: A Legal Perspective

Liu Huirong & Li Haomei

For a long time, not enough attention was paid to Arctic passages by the international shipping industry as there was significant disparity between the geography, climate and hydrology of the Arctic Ocean and that of other waters, and sailing the navigable routes was harsh. Therefore, the Arctic waters were mostly utilized for exploration and scientific investigation, besides being used by indigenous peoples. At present, the international community does not have a set of international navigation rules specifically tailored for the Arctic waters, except for the article (Article 234) with regard to ice-covered areas in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Canada and Russia, both signatories of the UNCLOS, are by this authorized to adopt and enforce domestic laws and regulations concerning navigation in the Arctic waters, which in effect means they control Arctic navigation activities.

Since the beginning of the 21st century, the Arctic has been increasingly affected by global climate change, with the seasonal melting of Arctic sea ice becoming more obvious, the navigable area and navigable period becoming longer, and the actual traffic continuously expanding.1Arctic Council, “Arctic Marine Shipping Assessment 2009 Report,” p.35.As the opening of Arctic passages significantly shortens the distance between ports in Asia and in Northern Europe and North America, the international shipping industry has begun to eye its greater utilization. In order to better regulate the navigation activities in the Arctic area, the International MaritimeOrganization (IMO) began drawing up legally binding navigation rules in the Arctic waters in 2009, and Canada and Russia have made major adjustments to their relevant regulations.

The jurisdiction of coastal states on the Arctic passages has profound influence on China’s interests. In 2013, the ice-strengthened merchant vessel Yong Sheng of China COSCO Shipping Co. Ltd. conducted a voyage through the Northeast Passage, starting China’s commercial utilization of Arctic passages. Since 2015, China has begun to utilize the Northeast Passage on a regular basis. It is therefore important to scrutinize the practice and legal basis of the regulations of Arctic coastal states and how the legal system for Arctic navigation is developing.

Canadian and Russian Practices of Arctic Navigation Control

The main segments of the Northwest and Northeast Passages go through the Arctic waters of Canada and Russia respectively, and the two countries, as coastal states, draw from Article 234 of UNCLOS on ice-covered areas to formulate a series of regulations on maritime transportation and control of pollution from vessels, which are applied to the Arctic waters they claim and actually bind the vessels that voyage through Arctic waters. Regulations by coastal states are thus an important component of the legal system of navigation control in the Arctic waters.

Canada’s Arctic Navigation Control

Canada’s control of the Arctic maritime area is based on its sovereignty claims of the Arctic archipelagic waters, which it publicly declared for the first time in 1973 as its internal waters drawing on historical title. Canada further stated that the regime of transit passage does not apply to the waters in 1975,2Donat Pharand, “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development and International Law, Vol.38 (2007), p.11.and drew the straight baselinesfor the Arctic archipelagic waters through an order in 1985.3“The Territorial Sea Geographical Co-ordinates (Area 7) Order of 10 September 1985,” http://www . un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/CAN.htm.Canada has insisted on its sovereignty over the waters, but the straight baselines it draws have encountered protests from the United States and some European countries. The United States claims that the Northwest Passage is a strait used for international navigation, so foreign vessels enjoy the right of transit passage and the legal status of the Passage remains unresolved. Canada’s Ocean Act of 1996 extended the breadth of its territorial sea to 12 nautical miles, and claimed a further 12 nautical miles for the contiguous zone, 200 nautical miles from the baselines for the Exclusive Economic Zone (EEZ) and corresponding rights over the continental shelf.

To control the Northwest Passage, Canada passed its Arctic Waters Pollution Prevention Act (AWPPA) as early as 1970 on the basis it was protecting the Arctic ecology. In fact, the promulgation of the AWPPA was mostly triggered by the US oil tanker SS Manhattan, which in 1969 became the first commercial vessel to transit the Northwest Passage.4In 1969, the United States government sent the oil tanker SS Manhattan, represented by Atlantic Richfield Company, to voyage along the Northwest Passage, for the purpose y to determine the feasibility of year-round operations by giant ships through the Northwest Passage bearing Alaskan crude to the United States’ East Coast. Though the tanker was accompanied all the way by two icebreakers from the US Coast Guard, it was still stopped by sea ice on many occasions. It was under the escort of the Canadian icebreaker CCGS John A. Macdonald that Manhattan finally got out of the difficult situation. The voyage, which Canada claimed violated its interests, generated great controversy.According to the AWPPA, Canada claimed it exercised jurisdiction over the waters north of 60°N and 100 nautical miles seaward from its territory, which far exceeded the limit of territorial waters by international law at that time. In 2009, Canada revised the Act, extending its jurisdiction to 200 nautical miles from the baselines and explicitly covering the internal waters, the territorial sea and the EEZ. According to the AWPPA, any person or vessel that has deposited waste or is in danger of causing any deposit of waste in the Arctic waters is subject to absolute civil liability.5Arctic Waters Pollution Prevention Act, Article 6.The AWPPA adopts a rather broad definition of“ships” and “waste,”6Arctic Waters Pollution Prevention Act, Article 2.and the Vessel Pollution and Dangerous Chemicals Regulations of 2012 further forbids the deposit from ships of oil and any oily mixture, garbage and organotin compounds that act as biocides, with the exceptions limited to saving lives and unavoidability.7Vessel Pollution and Dangerous Chemicals Regulations, SOR/2012-69, Articles 4-5.Canada’s waste discharge or emission standards are higher than that in the International Convention for the Prevention of Pollution from Ships (MARPOL), and its coverage of discharge-limited waste is also much more extensive. To ensure effective implementation of the pollution discharge standards, the Canadian law enforcement is given a wide range of power including boarding, examining and ordering to anchor in a designated place any ship suspected of violating the AWPPA.8Arctic Waters Pollution Prevention Act, Article 15.

In 2013, the ice-strengthened merchant vessel Yong Sheng of China COSCO Shipping Co. Ltd. conducted a voyage through the Northeast Passage to Rotterdam Port, starting China’s commercial utilization of Arctic passages.

Moreover, the AWPPA authorizes the Canadian government to prescribe shipping safety control zones in the Arctic waters it claims, and allows it to make special regulations applicable to ships navigating within any such zone. The standards prescribed by the regulations relate to hull and fuel tank construction, the construction of machinery and equipment,the manning of the ship, the quantities of cargo, fuel, water and other supplies to be carried, etc.9Arctic Waters Pollution Prevention Act, Articles 11-12.A prominent feature of Canada’s regulations is that it implements shipping safety control zone measures that are usually decided by the flag state.10Willy Østreng, Karl Magnus Eger , Brit Fløistad, Arnfinn Jør gensen-Dahl, Lars Lothe, Morten Mejlænder-Larsen, Tor Wergeland, Shipping in Arctic Waters: A Comparison of the Northeast, Northwest and Trans Polar Passages, Springer-Verlag Berlin Heidelberg, 2013, p.265.Canada has divided its Arctic waters into 16 Vessel Safety Control Zones, and set a timetable for ships of different classes to enter and exit the zones, forming a Zone-Date System of ship access into Canadian Arctic waters.11Arctic Shipping Pollution Prevention Regulations, Schedule VIII. According to the schedule, ships of Arctic Class 10, with the strongest icebreaking capacity, are allowed to navigate in all zones all the year round, while Type E vessels, suitable only for navigation in ice-free areas, are not allowed at any time of the year to navigate in Zones 1-6, where the ice condition is severe. In 1996, Canada introduced the Arctic Ice Regime Shipping System (AIRSS), and began to allow particular ships on a case-by-case basis to navigate at a time not prescribed in the timetable when the actual ice condition is appropriate.Ships that navigate within the zones must satisfy the construction standards prescribed by law,12Arctic Shipping Pollution Prevention Regulations, Annexes V, VI, VII.and be aided, if the ship is an oil tanker, by a qualified ice navigator, who shall have served on a ship in the capacity of master or person in charge of the deck watch for at least 30 days in Arctic waters.13Arctic Shipping Pollution Prevention Regulations, Article 26.

According to the Canada Shipping Act of 2001, the Canadian government introduced the Northern Canada Vessel Traffic Services Zone Regulations (NORDREG) in 2010,14The NORDREG came into ef fect on July 1, 2010, whose central objective is to establish the NORDREG Zone and require ships that navigate within the zones to submit different types of reports.and established a mandatory reporting system for ships navigating within its Arctic waters, in order to strengthen control. The NORDREG zones cover the area of the abovementioned shipping safety control zones, and apply to all vessels with a gross tonnage of 300 or more and vessels of any size that carry, tow or push cargos of pollutants or dangerous goods.15Northern Canada Vessel Traffic Services Zone Regulations, SOR/2010-127, Article 3.Under the NORDREG system, ships must have obtained clearance upon entering the traffic services zones, and the authorities have the power to require the vessels to submit reports on their navigational information and closely monitor theiractivities. The vessels are also required to maintain direct communication with a marine communication and traffic services officer in accordance with the regulations.16Canada Shipping Act, Article 126.

Russia’s Arctic Navigation Control

With its signing of UNCLOS in 1982, the former Soviet Union drew the baseline of its territorial sea for the Arctic Ocean, the Baltic Sea and the Black Sea, and enclosed the Vilkitsky Strait, the Shokalsky Strait, the Dmitry Laptev Strait and the Sannikov Strait as its internal waters. In the early 1990s, the Soviet Union began to open its Northern Sea Route for international navigation and set up a system of regulations, including the 1991 Regulations for Navigation on the Seaways of the Northern Sea Route and the supporting documents in 1996 regarding icebreaker and pilot guiding as well as standards of ship construction,17The three supporting documents in 1996 are the Guide to Navigating through the Northern Sea Route, the Regulations for Icebreaker and Pilot Guiding of Vessels through the Northern Sea Route, and the Requirement for the Design, Equipment and Supplies of Vessels Navigating the Northern Sea Route.which have been implemented for more than two decades. According to the 1991 regulations, the Northern Sea Route was considered a major transportation artery of the Soviet Union and located in its internal waters, territorial sea and the EEZ.18Regulations for Navigation on the Seaways of the Northern Sea Route, Articles 1-2. See http://www. arctic-lio.com for relevant regulations on the Northern Sea Route. Also see Erik Franckx, “The Legal Regime of Navigation in the Russian Arctic,” Journal of T ransnational Law and Policy, Vol.18 (2009), pp.331-333.This claim was reiterated in the 1998 Federal Act of the Internal Sea Waters, Territorial Sea and Contiguous Zone of the Russian Federation,19“Federal Act of the Internal Sea Waters, Territorial Sea and Contiguous Zone of the Russian Federation,”July 17, 1998, http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/RUS_1998_Act_ TS.pdf.but it remains ambiguous on its northern limit. According to the Act, vessels intending to navigate the Northern Sea Route shall submit to the Administration (Marine Operations Headquarters) a notification and a request for guidance through the Northern Sea Route, and have aboard a certificate of duefinancial security with respect to the payment of icebreaking assistance and the civil liability for any polluting of the marine environment.20Regulations for Navigation on the Seaways of the Northern Sea Route, Articles 3&5.In this period, Russia’s Arctic navigation control was centered on compulsory icebreaking and piloting. The navigating ships should satisfy the special requirements regarding ice-resistance level, machinery and sewage treatment equipment. Additionally, mandatory icebreaker guiding of vessels with an ice pilot on board each vessel was established in the above-mentioned four straits. In other regions, the Marine Operations Headquarters prescribes airplane or helicopter guiding, conventional pilotage or icebreaker guiding.21Regulations for Navigation on the Seaways of the Northern Sea Route, Article 7.Navigation of vessels accepted for guiding through the Northern Sea Route shall be organized and controlled by the Administration via the Marine Operations Headquarters, and the vessels shall follow the seaway prescribed by the Headquarters and pay a high price for the compulsory pilot guiding.22Regulations for Navigation on the Seaways of the Northern Sea Route, Article 8.The Administration may carry out an inspection of a vessel in any case where there is a suspected threat to security or polluting of the marine environment, and is authorized to order the removal of the vessel from the Route when provisions of the regulation are violated.23Regulations for Navigation on the Seaways of the Northern Sea Route, Articles 6&10.In fact, Russia manages the Northern Sea Route as if internal waters, intending to assert complete control and jurisdiction, a policy that has been criticized by some countries as lacking international legal basis, violating the UNCLOS with respect to the extent of levying charges, and going beyond the rights of protection in the territorial sea bestowed on coastal states by the UNCLOS, let alone the rights of jurisdiction in the EEZ.24Liu Huirong and Lin Hui, “Russia’s Legal Regulations on the Northern Sea Route and Their Conflicts with the UNCLOS,” Journal of Ocean University of China (Social Sciences), Issue 4, 2009, pp.7-8.

As part of promoting and implementing its new Arctic policy and long-term vision, Russia modified its federal laws with respect to the Northern Sea Route in 2012. The new laws insist that the NorthernSea Route is a historically established national transportation artery, but clarifies the northern limit of the Route to be consistent with its 200-nautical-mile EEZ limit.25Zhang Xia, Tu Jingfang, Qian Zongqi, Wang Zelin and Yang Huigen, “From Mandatory Icebreaker Guiding to a Permit Regime: Changes to the Northern Sea Route in New Russian Law,” Chinese Journal of Polar Research, Issue 2, 2014, pp.270-272.In terms of regulatory body, the new laws reestablished the federal-level Northern Sea Route Administration in full charge of navigation issues on the Route. According to the 2013 Rules of Navigation on the Water Area of the Northern Sea Route, ships that intend to enter the water area of the Northern Sea Route shall submit an application and relevant certificate documents in advance to the Administration, which will grant permission only after reviewing its compliance with international treaties and Russian domestic laws.26Rules of Navigation on the Water Area of the Northern Sea Route, Articles 3-4.The new rules sets up the criteria of admission to the Northern Sea Route only if ships are in compliance with regards their ice strengthening. Under some conditions, they permit ships with certain categories of ice strengthening to navigate independently without icebreaker assistance.27For the table of admission criteria, see Annex No.2 of the 2013 Rules of Navigation on the Water Area of the Northern Sea Route. Ships with category of ice strengthening Ice1-Ice 3 are permitted to navigate from July to November 15. Under light ice conditions, ships with all three categories are permitted to navigate through the area independently or with icebreaker assistance. Ships with category Ice 2 are permitted to navigate under medium ice conditions with icebreaker assistance. Ships with category Ice 3 are permitted to navigate even under heavy ice conditions.The criteria break the rigid old rules of mandatory icebreaker and pilot guidance and allow ships to utilize an icebreaking service according to practical needs. The new rules take out the requirement to designate a Russian pilot to board and guide through the ice area when the captain is experienced in such operations, but the captain’s experience is still taken into account in the decision of granting permission. Additionally, the charges for pilotage have been greatly reformed. The price of icebreaking services and pilot guidance in the ice area is no longer based on an unreasonable fixed rate but instead on the service actually provided, considering factors such as navigation time, vessel tonnage, ice condition and pilot distance. This is a transformation from the fixed rate todifferentiated prices, and from mandatory to coordinated charge.

Generally, the new Rules of Navigation on the Water Area of the Northern Sea Route have got rid of the shortcomings of the old rules, with the application procedure more convenient, the criteria for granting permission more transparent, the requirements for mandatory icebreaker and pilot guidance relaxed, and more reasonable charging standards. However, Russia does not adjust its position that the Northern Sea Route is controlled as internal waters, and vessels need to gain permission in advance from the Administration, which has much discretion in deciding whether it is necessary to provide icebreaker or pilot assistance. Ships must submit navigation reports all the way through the Route, and Russia remains its tight control over the Arctic waters it claims.

Ice-Covered Area Article and Its Proper Application

Both Canada and Russia base their exclusive jurisdiction over the Arctic passages on Article 234 of UNCLOS.28Article 234 of the UNCLOS (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.Given the particular navigational dangers and environmental risks in ice-covered areas, Article 234 bestows on coastal states the power of environmental legislation and law enforcement that is exceptional to the general rules of environmental jurisdiction by coastal states. Therefore, the applicable waters and the limit of jurisdiction need to be clarified when Article 234 is applied.

The geographical area for the application of Article 234 is the icecovered areas within the limits of an Exclusive Economic Zone, whose interpretation is disputed. Most scholars agree that the geographical limit of the jurisdiction should be confined to the EEZ. This opinion isconsistent with the approach to interpretation in good faith in accordance with the ordinary meaning, and matches the historical fact the Article 234 was negotiated under the EEZ part.29D. M. McRae and D. J. Goundrey, “Environmental Jurisdiction in Arctic Waters: The extent of article 234,” University of British Columbia Law Review, Vol.16 (1982), pp.215-222; R. D. Brubaker, The Russian Arctic Straits, Leiden: Martinus Nijhoff, 2005, pp.58–60.Correspondingly, the powers bestowed on coastal states in the ice-covered area are greater than that in their EEZ, but not exceeding that of their territorial sea. That is to say, the restrictions on the jurisdiction in the territorial sea also apply to the ice-covered area. However, the Canadian scholar Donat Pharand, drawing on the opinions expressed by the delegates to the negotiations, argues that the provision must have been intended to include the territorial sea.30“The Arctic Waters and the Northwest Passage: A Final Revisit,” pp.47-48.The reason for the interpretation, which is obviously in favor of Canada’s interests, is far-fetched. As with the criteria for an area to be considered ice-covered, there is also ambiguity in the provision, which leaves room for discretion. For example, UNCLOS does not give specific standards as to the threshold of “particularly severe climatic conditions,” the length of icecovering time, and the sea ice conditions, and needs to take into account meteorological, hydrological, navigation security and environmental risk factors. There are substantial disparities in hydrological and ice-covering conditions among different areas of the Arctic waters. As the effect of global warming on the melting and floating of Arctic sea ice differs among areas, sweeping generalizations cannot be made as to the identification of ice-covered areas. Updates and adjustments according to actual conditions are necessary.

The extent of jurisdiction stands at the core of Article 234 of UNCLOS, which sets out multiple conditions for the exercising of jurisdiction in order to balance the right to jurisdiction of the Arctic coastal states and the right of navigation of other states. Seen from Article 234 per se and its context, the convention’s requirements on coastal states with regard exercising jurisdiction over ice-covered areas should be for thepurpose for the prevention, reduction and control of marine pollution from vessels, be non-discriminatory, respect sovereign immunity, and show due regard to navigation based on the best available scientific evidence.

1. Purpose of pollution prevention and control. According to Article 234, the purpose of unilateral legislation and law enforcement by coastal states should be the prevention and control of marine pollution from vessels, which indicates that the jurisdiction is highly functional but not comprehensive. Even though the issue of navigation security in icecovered areas is usually related to pollution control, it should not by arbitrarily concluded that all regulations on navigation satisfy this legislative purpose and thus belong to appropriate application of Article 234. In practice, the interpretation of this purpose should not be overly expanded, and those measures whose main purpose is not to control pollution should be critically reviewed to ensure they are “necessary” to protect the marine environment, instead of just being “helpful”.31Myron H. Nordquist, John Norton Moore, Alfred H. A. Soons and Hak-So Kim eds., The Law of the Sea Convention: US Accession and Globalization, Martinus Nijhoff Publishers, 2012, pp.419-420.

2. Non-discriminatory. The environmental legislation adopted by coastal states should not discriminate between domestic and foreign vessels.

3. Sovereign immunity.32United Nations Convention on the Law of the Sea, Article 236.The regulations based on the ice-covered area article do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, for a governmental non-commercial service.

4. Based on the best available scientific evidence. In theinterpretation of Article 234, the extent of ice-covered areas and the relationship between ends and means should be defined by relying on scientific evidence. The navigation regulations by coastal states in icecovered areas should be built on a fair understanding of the Arctic marine environment, and justify its measures as necessary to protect the marine environment with internationally recognized scientific knowledge and reasoning.33Kristin Bartenstein, “The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage,” Ocean Development and International Law, Issue 1-2, 2011, p.41.

5. Due regard to navigation. This is the most ambiguous part of Article 234. Even regardless of the navigation regime in ice-covered areas, the provision here is lacking in rigid standards and requirements compared to the protection of the rights of innocent passage in territorial waters and transit passage through straits.

Consistency with the conditions in the UNCLOS is necessary for drawing on the special mandate in Article 234, and an overly expanded interpretation of its geographical and jurisdictional extent betrays the need to strike a balance between jurisdiction and the right of navigation that the Article 234 intends to maintain. Although the regulations of coastal states on navigation are not subject to the supervision of international organizations, they should be justified by the best available scientific evidence, and have due regard to navigation.

Legitimate Extent of Canadian and Russian Regulations

The special jurisdiction of Arctic coastal states is subject to restraints in various aspects of international law. While Article 234 of UNCLOS, as the legal basis for unilateral jurisdiction, has extents to its application, the navigation regulations outside the domain of Article 234’s mandate should comply with relevant rules of the IMO. What is noteworthy, the newly adopted International Code for Ships Operating in Polar Waters (Polar Code) may have an impact on the coastal states’ control of the Arctic waters.

Breakthrough in Maritime Law

There is a converging tendency in the Arctic navigation regulations of Canada and Russia. Both countries have obviously been going beyond the ice-covered area article of the Convention, in the following ways:

Impacts on right of navigation.Both the Canadian and Russian regulations are indiscriminately applied to the Arctic waters under their jurisdiction, far beyond their EEZs and extending into the territorial sea and international waters. This practice is in stark contradiction with the principle of sea area zoning in maritime law and impairs the navigation rights of other countries in relevant waters. Russia’s treatment of the Northern Sea Route as internal waters and application of the regulations to waters including internal waters, the territorial sea and the EEZ, where it requires all vessels navigating through the route to submit applications and be subject to its permission, directly violates the regimes of innocent passage in the territorial sea, transit in straits used for international navigation, and freedom of navigation in the EEZ. Canada, while not explicitly licensing navigation activities, requires vessels to obtain in-advance clearance from the authorities upon entering its Northern Canada Vessel Traffic Services Zones. The procedural requirement of clearance has a substantial bearing in that the Canadian authorities are empowered to primarily review the vessels’ compliance with Canada’s domestic legislation. At the same time, it constitutes a limit on the navigation in non-internal waters, and has no due regard to foreign vessels’navigation right.

Scientific evidence.Canada has set up a fixed Zone-Date System for ships with different icebreaking capacities, and further introduced the Arctic Ice Regime Shipping System (AIRSS) to allow particular ships on a caseby-case basis to navigate at the time not prescribed in the timetable when the actual ice condition is appropriate. However, as revealed by a research report prepared for the Canadian Ministry of Transportation, the Zone-Date System, which was once consistent with the ice conditions in the Arctic waters, no longer fits the reality. Even the AIRSS, which is comparativelymore flexible and accurate, needs continuous updating.34Garry Timco and Ivana Kubat, “Regulatory Update for Shipping in Canada’s Arctic Waters: Options for an Ice Regime System,” Discussion Paper TP 14732 (Canadian National Research Council, March 2007), pp.8 & 12.There is also inadequate transparency on whether Russia’s new Northern Sea Route entry and navigation regulations are based on the best available scientific evidence. According to Article 234 covering the ice-covered area, the formulation of regulations shall be grounded on the best available scientific evidence to avoid excessive arbitrary control by coastal states. Therefore, it has been suggested by some studies that the governments of Canada and the United States develop cooperation in Arctic meteorological and hydrological sciences and exchange their latest data, on which basis a new navigation regime would be built to give other shareholder countries an open opportunity to participate, a move that would gain broader international recognition and resolve disputes regarding scientific foundation.35Peter Luttmann, “Ice-Covered Areas under the Law of the Sea Convention: How Extensive are Canada’s Coastal State Powers in the Arctic?” Ocean Yearbook, Vol.29, No.1 (January 2015), p.122.Similarly, Russia is suggested to strengthen joint research with Norway, Canada and the United States on studying Arctic conditions, in order to build its regulatory policy on reliable scientific basis.

Purpose of regulatory measures.The Canadian and Russian regulatory measures are comprehensive in that they not only set strict standards for pollution discharges, vessel design and construction, manning, equipment and sea area entry, but also require mandatory submission of navigation reports as well as traffic control. Some measures, such as requirements on life-saving equipment and the NORDREG system, are mostly and directly intended to protect the lives of the crew on board vessels and guarantee navigation safety, instead of preventing pollution from vessels. Therefore, it remains disputable whether they fall within appropriate application of the environmental jurisdiction prescribed in the ice-covered area article. In practice, Canada’s unilateral establishment of the Northern Canada Vessel Traffic Services Zones has been challenged by other countries.

Sovereign immunity.Canada does not give immunity to governmentships operated for non-commercial purposes in its regulation of waste discharge standards in the AWPPA, only specifically speculating in the rules of shipping safety control zone that the Governor in Council might waive the provision’s application when the flag state could be confirmed to have taken relevant precautionary measures.36Arctic Waters Pollution Prevention Act, Article 4.The conditional jurisdictional immunity is inconsistent with the UNCLOS-prescribed sovereign immunity from environmental jurisdiction enjoyed by government ships in ice-covered areas. Russia either does not live up to the requirement of sovereign immunity in its permission procedures and charging for guide services for foreign government ships such as scientific research vessels navigating through the Northern Sea Route.

Restraints from IMO rules

In the absence of necessary IMO procedures, Canada unilaterally established its mandatory Traffic Services Zone system in the Arctic waters in 2010, which immediately encountered opposition from the United States and other countries and triggered a discussion on the relationship between IMO rules and Article 234 of UNCLOS on the ice-covered area. The United States and the International Association of Independent Tanker Owners (INTERTANKO) quested the legitimacy of Canada’s new regulation in the IMO, accusing its mandatory Traffic Services Zone of violating the International Convention for the Safety of Life at Sea (SOLAS) and the procedural requirements in relevant resolutions.37“Safety of Navigation: Northern Canada Vessel Traffic Services Zone Regulations,” IMO Maritime Safety Committee 88th session, agenda item 11, September 22, 2010.Singapore further pointed out that it remains to be discussed whether the establishment of the Traffic Services Zone is consistent with the fundamental purpose of Article 234 of UNCLOS, and whether it is appropriate application of the ice-coveredarea article.38“Report to the Maritime Safety Committee,” IMO Doc. NA V 56/2, August 31, 2010; “Report to the Maritime Safety Committee on its Eighty-Eighth Session,” IMO Doc. MSC 88/26/Add.1, Annex 28, January 19, 2011.Canada, on the other hand, claimed that its newly-adopted NORDREG39NORDREG initially referred to the Arctic Canada Traffic Zone. In 2010, the Northern Canada Vessel Traffic Services Zone Regulations introduced the mandatory reporting system, changing the long-time voluntary feature of the NORDREG system. Since then both the authority and the academic circle has been using the term NORDREG to directly refer to the Regulations.was justified by international law through the special jurisdiction prescribed in Article 234, and that the Regulations 11 and 12 of SOLAS passed by the IMO do not impede the rights and obligations enjoyed by respective governments in international law, namely not affecting Canada’s right to take relevant measures to protect marine environment under the ice-covered area article.40“Comments on document MSC 88/11/2, MSC 88/11/3,” October 5, 2010, para. 5.1.

Whether Canada’s regulation falls within appropriate application of the ice-covered area article depends on whether the purpose of Article 234 is expansively or strictly interpreted, a more in-depth issue to be discussed is the relationship between Article 234 and IMO rules. Drawing on the reservation clause in the IMO Convention, Canada prioritizes Article 234 over the IMO rules, emphasizing the lex specialis feature of the Article, which is in essence equal to placing the Article in a special restraint-free status. This opinion is in violation of the balance of interests between coastal states’ navigation control and global freedom of navigation, which is carefully maintained by international maritime law and the legal system of international shipping, and thus cannot be endorsed by the international community, particularly those shipping powers.

The IMO, at the core of the legal regime of international shipping, is a global organization for countries to deliberate on international shipping rules. The IMO-led International Convention for the Safety of Life at Sea(SOLAS) and the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) as well as relevant protocols are broadly binding as multilateral shipping rules. As with the navigation activities in Arctic waters, the leading position of the IMO in formulating international shipping regulations should be respected. The IMO has adopted general principles and guidance regarding the newly emerging regulatory measures,41Regulations 11 and 12 of Chapter V of SOLAS deal with the ship reporting systems and vessel traf fic services respectively.such as the navigation report system and Canada’s NORDREG. Coastal states in ice-covered areas, when implementing such kind of control, should no longer rely on unilateral actions, but are obliged to follow the principles and requirements set up by the IMO and ask for its consent. As is indicated by a commentary, “Article 234 should be read together with other UNCLOS provisions according to which coastal States should abide by international rules and standards adopted by IMO in matters of safety of navigation and prevention of marine pollution from ships. Accordingly, special laws to be adopted by coastal States in accordance with Article 234 should neither contradict nor overlap with shipping rules and standards contained in SOLAS and MARPOL and other relevant IMO instruments.”42A. Blanco-Bazán, “Specific Regulations for Shipping and Environmental Protection in the Arctic: The Work of the International Maritime Or ganization,” The International Journal of Marine and Coastal Law, Vol.24 (2009), p.384.

Therefore, the special mandate of Article 234 of UNCLOS cannot be used by Arctic coastal states as excuse to disobey relevant international maritime rules. The navigation regulations and rules, coordinated and formulated by the international community through the IMO, should be respected and maintained. Arctic coastal states, when implementing those regulations that have a bearing on the right of navigation, should follow the established rules of the IMO in a multilateral approach.

Polar Code and its impact on special jurisdiction in ice-covered areas

The IMO adopted the Guidelines for Ships Operating in Arctic Ice-Covered Waters43“Guidelines for Ships Operating in Arctic Ice-Covered Waters,” IMO Doc. MSC/Circ.1056-MEPC/ Circ.399, December 23, 2002.and the Guideline for Ships Operating in Polar Waters44“Guidelines for Ships Operating in Polar Waters,” IMO Assembly Resolution A. 1024(26) adopted on December 2, 2009, IMO Doc. A26/Res.1024, January 18, 2010.in 2002 and 2009 respectively. Moreover, after many years of efforts, the International Code for Ships Operating in Polar Waters (the Polar Code) came into effect on January 1, 2017.45MEPC 68/21/Add. Annex 10, International Code for Ships Operating in Polar Waters.As the first legally-binding navigation code in polar waters, the Polar Code comprehensively regulates the issues related to polar navigation, including ship structure, machinery installations, fire safety/protection, life-saving appliances and arrangements, and safety of navigation. Regarding environmental protection, the Polar Code, on the basis of the MARPOL annex, elevates the discharge standards of four kinds of pollutants such as oily mixtures and noxious liquid substances.

Ensuing, since the Polar Code took effect is the relationship between it and Article 234 of UNCLOS, as well as the effects on coastal states’unilateral jurisdiction. There are potential conflicts between international multilateral rules and coastal states’ unilateral jurisdiction. Some Canadian scholars, drawing on clauses from SOLAS, MARPOL and the Polar Code,46In the amendments to SOLAS incorporating the safety provisions of the Polar Code, Paragraph 5 of Regulation 2, Chapter XIV reads that “Nothing in this chapter shall prejudice the rights or obligations of States under international law.” See Annex 7 Amendments to the International Convention for the Safety of Life at Sea, 1974, as amended, MSC94/21/Add.1.as well as Canada’s statement regarding the ice-covered area article when it ratified MARPOL, claim that the maritime rules do not constitute a hindrance to Canada’s power to enact regulations according to Article 234 of UNCLOS.47Ted L. McDorman, “A Note on the Potential Conflicting Treaty Rights and Obligations between the IMO’s Polar Code and Article 234 of the Law of the Sea Convention,” in Suzanne Lalonde and Ted L. McDorman, International Law and Politics of the Arctic Ocean, Brill Nijhoff, 2014, p.155Similar opinions claim that since Article 234 does not contain any reference to “generally accepted international rules and standards,” the adoption of the Polar Code does not eliminate Article 234 as an alternative basis for adopting stricter environmental (or safety) standards.48Øystein Jensen, “The International Code for Ships Operating in Polar Waters: Finalization, Adoption and Law of the Sea Implications,” Arctic Review on Law and Politics, Vol.7 (2016), p.76.In light ofthe wording of Article 234, and the principle of freedom of navigation in the EEZ, however, it may be necessary for states to justify why an even higher level of protection than the Polar Code is necessary.49Ibid., p.77.The Polar Code was adopted on reliable scientific basis and after many years of international negotiations, and it provides relatively comprehensive guarantees for the safety of navigation through the Arctic waters and prevention of pollution from vessels. The Polar Code elevates the requirements and standards for coastal states to apply Article 234, making it more difficult to defend for special jurisdiction.

The effect of the Polar Code on Article 234 is also reflected in the change in the international legal environment covering Arctic navigation. The wave of environmental protection, emerging globally in the 1970-1980s, fundamentally influenced the formulation of maritime law, as the international community began to admit the ecological vulnerability of ice-covered areas, and recognized, under the background of inadequate protection of Arctic maritime environment in international law, the right of implementing unilateral high-standard regulations by the relevant coastal states, in order to prevent, reduce and control the severe damage done by vessels to Arctic maritime ecology. Over the past 10 years or so, the IMO has been gradually stepping up the formulation of regulations regarding navigation in Arctic waters, from suggestive guidance to mandatory and comprehensive international rules. The adoption of the Polar Code is significant in guaranteeing Arctic navigation and controlling pollution from vessels, as the special historical background that existed when Article 234 was drawn up has greatly changed, and the legitimacy of coastal states’ unilateral jurisdiction has thus faded.

Conclusion

Article 234 of UNCLOS endows coastal states with the power of legislationand law enforcement to prevent and control pollution from vessels in icecovered areas. The coastal states’ application of Article 234 should be limited to the ice-covered areas in their Exclusive Economic Zones, and satisfy the purpose of pollution prevention and control, and the requirements of having the best available scientific evidence, having due regard to navigation, nondiscriminatory and sovereign immunity. The navigation control of Canada and Russia in Arctic waters, based on an expanded interpretation of Article 234, implements undifferentiated regulations in internal waters, territorial seas and EEZs, going beyond the principle of sea area zoning and impairing the right of navigation. Moreover, both countries’regulations are short of scientific foundations.

The Arctic coastal states should not apply Article 234 in a way that willfully shuns the regulations formulated by the IMO, whose established procedures and rules are to be followed when relevant countries implement their own regulations. The legally binding Polar Code, based on internationally recognized scientific foundations, is an important milestone in guaranteeing Arctic navigation safety and protecting the polar ecological environment, and the adoption of the Polar Code will inevitably squeeze the space available for applying Article 234. As the international regulatory regime of Arctic navigation is strengthening, more sufficient justification needs to be provided by coastal states to implement regulations higher than international standards based on Article 234. Since Canada and Russia are sparing no efforts to maintain the special mandate prescribed by Article 234, the jurisdiction may not be invalidated in the near future. However, the enactment of the Polar Code will profoundly change the legal ecology of navigation in Arctic waters, further weaken the legitimate foundation of coastal states’ unilateral actions, make it less necessary toimplement special protection based on Article 234, and finally devalue the actual effect of Article 234. Moreover, the environmental change that is taking place in the Arctic is also increasing the uncertainty of applying Article 234. Due to effects of climate change, there is an obvious trend of sea ice melting and navigational conditions improving in the Arctic, which will necessitate a reevaluation of the extent of ice-covered areas. Coastal states, when applying Article 234, must provide and base their judgments on more timely and reliable scientific evidence.

From the geopolitical and international relations perspective, only Canada and Russia, out of the five Arctic coastal states, have clearly relied on Article 234 to implement unilateral regulations on Arctic navigation beyond international standards. Norway and Denmark (Greenland) take a more moderate stance, and the United States’ has a position significantly different from Canada’s and Russia’s. While the United States, as one of the coastal states, supports in principle the strengthening of environmental protection and navigation safety in Arctic waters, it seeks greater say in the international shipping industry as the world’s top economic and military power. The United States has long considered global freedom of navigation as vital to its national interests, and it has serious disputes with Canada and Russia with regard to the legal status of the Arctic passages. Its position of limiting the unilateral jurisdiction of coastal states is reflected in its challenge against Canada’s mandatory reporting system. With the gradual opening of more Arctic passages, the major shipping countries will also be dissatisfied with the two countries’ unilateral measures, putting more pressures on their regulations. The special jurisdiction of Arctic coastal states is not only encountering legal obstacles, but also political difficulties in finding support from other countries. It would be in the interests of the countries to develop cooperation in Arctic navigation through international platforms and seek for benefits under the framework of internationally recognized rules.

Liu Huirong is Dean and Professor of the Law and Politics School, Ocean University of China; Li Haomei is a Ph.D. candidate at the Law and Politics School, Ocean University of China.