Challenges of the Changing Arctic : Continental Shelf, Navigation, and Fisheries [1 ed.] 9789004314252, 9789004314245

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Challenges of the Changing Arctic

Center for Oceans Law and Policy Series Editor Myron H. Nordquist John Norton Moore

VOLUME 19

The titles published in this series are listed at brill.com/colp

Challenges of the Changing Arctic Continental Shelf, Navigation, and Fisheries Edited by

Myron H. Nordquist John Norton Moore Ronán Long

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: University of Virginia. Center for Oceans Law and Policy. Conference (38th : 2014 : Bergen, Norway) | Nordquist, Myron H., editor. | Moore, John Norton, 1937– editor. | Long, Ronán J., editor. Title: Challenges of the changing Arctic continental shelf, navigation, and fisheries / edited by Myron H. Nordquist, John Norton Moore, Ronán Long. Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: Center for Oceans Law and Policy ; volume 19 | “Part of series of publications on oceans law and policy produced by the Center for Oceans Law and Policy, University of Virginia School of Law. This volume is based largely on presentations made 25–27 June, 2014, at the Center’s 38th annual conference which was held in Bergen, Norway.”—ECIP galley. | Includes bibliographical references and index. | Description based on print version record and CIP data provided by publisher; resource not viewed. Identifiers: LCCN 2016001588 (print) | LCCN 2016000346 (ebook) | ISBN 9789004314252 (E-book) | ISBN 9789004314245 (hardback : alk. paper) Subjects: LCSH: Law of the sea—Arctic Ocean—Congresses. | Continental shelf—Law and legislation—Arctic regions—Congresses. | Arctic Regions—International status—Congresses. Classification: LCC KZA1667 (print) | LCC KZA1667 .U55 2016 (ebook) | DDC 341.4/5091632—dc23 LC record available at http://lccn.loc.gov/2016001588

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-31424-5 (hardback) isbn 978-90-04-31425-2 (e-book) Copyright 2016 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Bergen Papers Challenges of the Changing Arctic: Continental Shelf, Navigation and Fisheries is part of a series of publications on oceans law and policy produced by the Center for Oceans Law and Policy, University of Virginia School of Law. This volume is based largely on presentations made 25–27 June, 2014, at the Center’s 38th Annual Conference which was held in Bergen, Norway. The primary organizers and sponsors for this Conference were the Virginia Center, the University of Bergen and the Law of the Sea Institute of Iceland. Additional sponsorship was provided by the Center of the Polar and Deep Ocean Development, Shanghai Jiao Tong University; Centre for International Law, National University of Singapore; K.G. Jebsen Centre for the Law of the Sea, Tromsø; Korea Maritime Institute; National University of Ireland, Galway; and the Nordic Council of Ministers.

Contents Introduction 1

Setting the Context 1 Notes on Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries 7 Liv Holmefjord 2 The Arctic and the Present Geopolitical Situation 10 Hans Corell

Part 1 Arctic Continental Shelf 3 The Arctic Continental Shelf and Its Evolving Morphologic Context 19 Larry Mayer 4 The Law and Politics of the Lomonosov Ridge 42 Michael Byers 5 The Delimitation of the Continental Shelf Beyond 200 Nautical Miles in the Arctic Ocean: Recent Developments, Applicable Law and Possible Outcomes 53 Alex G. Oude Elferink 6 Probabilistic Risk Assessment: Concepts and Applications 81 Dennis C. Bley

Part 2 Arctic Continental Shelf Petroleum 7 Russia’s Energy Policy in the Arctic Region and China’s Opportunities 105 Kuen-chen FU

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A Sustainable Approach to the Arctic 125 Erik Haaland

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Environmental Aspects of Hydrocarbon Exploration in the Arctic 130 Stephen A. Macko

Part 3 Arctic Shipping 10

Arctic Shipping—Still Icy 145 Knut Einar Skodvin

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Necessary Conditions for the Commercialization of Arctic Shipping 160 Sung Woo LEE

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Arctic Navigation: Recent Developments 173 J. Ashley Roach

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Comparison of Arctic Navigation Administration between Russia and Canada 286 Leilei ZOU

Part 4 Other Arctic Related Topics 14

Finding Refuge in the Exceptional: Using Public Morality as a Basis for Managing Natural Resources in the Arctic 305 Elizabeth Whitsitt

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The Changing Arctic and an Adaptive Approach to the Protection of Arctic Marine Ecosystems 326 Guifang ( Julia) XUE and Yu LONG

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Arctic Governance: Reflections on the Evolving Tableau of EU Law and Policy Measures 363 Ronán Long

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A Note on Arctic Ocean Regional Governance 400 Ted L. McDorman

Part 5 Changing Fisheries: Northeast Atlantic and Arctic Ocean 18

Changes in Distribution and Migration of Fish Stocks in the Northeast Atlantic Ocean Due to Climate Variations 407 Jóhann Sigurjónsson

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International Regulation of Central Arctic Ocean Fisheries 429 Erik J. Molenaar

20 Assertion of Entitlement to Shared Fish Stocks 464 Bjørn Kunoy

Part 6 Regional Fisheries Management: Agreements on Allocation of Shared Fish Stocks 21

Freedom of Fishing on the High Seas, and the Relevance of Regional Fisheries Management Organisations (RFMOs) 511 Stefán Ásmundsson

22 Allocation of Fishing Rights: Principles and Alternative Procedures 522 Tore Henriksen 23 Managing Shared Migratory Stocks: The Case of the Atlantic Mackerel 559 Rögnvaldur Hannesson

Part 7 Related Law of the Sea Issues 24 UNCLOS Dispute Settlement Regime and Arctic Legal Issues 573 Robert Beckman

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25 Russian Maritime Security Law along the Northern Sea Route: Giving Shape to Article 234 in the Law of the Sea Convention 593 James Kraska 26 Comments on the Three-stage Approach of Maritime Delimitation 613 Chuanxiang SUN

Introduction The topic of Challenges of the Changing Arctic: Continental Shelf, Navigation and Fisheries was selected because of the numerous and unique newly emerging issues that have arisen largely due to the melting ice in the Arctic region. Each of the primary sponsors of the Conference is located in a nation which is a member of the Arctic Council: Iceland, Norway and the United States. The location of the conference in Bergen, Norway was fitting given that city’s and Norway’s long, intimate association with maritime affairs. This point is made convincingly by Liv Holmefjord, the Director of Fisheries, whose headquarters is located in Bergen. She cites in particular the on-going cooperation between Norway and Russia capped by an agreed maritime delimitation in the Barents Sea in 2010. A second keynote speaker was Hans Corell, former UnderSecretary-General for Legal Affairs and the UN Legal Counsel from 1994 to 2004. Dr. Corell notes the contributions in this book and warns that the present geopolitical situation is not favorable as good relations between Moscow and Washington are imperative for developments in the Arctic. In Part 1, Dr. Larry Mayer who directs the Center for Coastal and Ocean Mapping, University of New Hampshire, focuses on the Arctic continental shelf and how new sea floor mapping methods have revolutionized understanding of the morphology of the Arctic basins. He questions in particular whether the same broad margin can have two regions representing the “foot of the slope” for UNCLOS Article 76 purposes. Article 76 confers continental shelf jurisdiction for coastal States beyond 200 nm and Professor Michael Byers from the University of British Columbia explains how the Arctic Ocean delimitation is complicated by submarine ridges and submarine elevations. Alex G. Oude Elferink, Director of the Netherlands Institute for the Law of the Sea, Utrecht University, tackles delimitation of the continental shelf within and beyond the 200 nm EEZ. He believes that different delimitation methodology is appropriate and offers views on what outcomes might result in the Arctic Ocean. A fourth paper on the Arctic Continental Shelf in Part 1 was prepared by Dennis C. Bley with expertise on applying Probabilistic Risk Assessment to new industries and endeavors. In particular, he provides three examples related to policies affecting the sea and possible damage to the sea environment or vessels and platforms operating in the sea. The articles in Part 2 concentrate on Arctic continental shelf petroleum resources. The paper by Professor Kuen-chen FU of Shanghai Jiao Tong University discusses three opportunities for the Chinese to take part in the development of Russia’s Arctic continental shelf. The opportunities but also

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risks are China’s energy demand, Russian energy laws and policies and relevant international legal issues. Erik Haaland of Statoil’s Arctic Unit next presents an overview of Statoil’s Arctic strategies concluding that collaboration is the key tool for enabling development. Dr. Stephen A. Macko, Professor, Department of Environmental Sciences, University of Virginia, writes of his concern for only minimal preparation for impact and clean up for increasing levels of pollutants in the fragile Arctic environment. He urges greater planning and preparedness to meet the challenges of an oil spill in an ice-covered ocean. Part 3 deals with Arctic shipping and Knut Einar Skodvin of the University of Bergen faculty of law discusses increasing shipping and a vulnerable ecosystem. He sees progress in the establishment of a binding Polar Code enhancing safety and environmental protection and the development of the Arctic Search and Rescue Agreement. Sung Woo LEE of KMI’s International Logistics Department identifies the specific challenges for the commercialization of the Northern Sea Route in the Arctic. He cites a shortage of icebreakers, imbalance in cargo volume, high operational costs, poor infrastructure, difficulties achieving punctual navigation, insufficient disaster/safety systems, environmental issues and finally disruption of the life of indigenous people. J. Ashley Roach, formerly of the Office of Legal Adviser, US Department of State, then provides a comprehensive report on a mandatory code for ships operating in polar waters (known as the Polar Code). He reviews the deliberative documents of IMO meetings and outlines the entire process that led to the successful adoption of the Code. The last paper in Part 3 by Leilei ZOU, an associate professor at Shanghai Ocean University, compares the respective Arctic navigation administrative practices of Russia and Canada. She concludes there are important differences in the political and military significance of each and that these differences are reflected in their domestic legislation and policies. The articles in Part 4 are related to other Arctic topics. Elisabeth Whitsitt, University of Calgary Faculty of Law, extensively analyzes the ways in which international trade regulations attempt to balance concerns with the environment. In particular she questions the public morals exception as applied in the EC-Seal Products dispute. Professor Guifang (Julia) XUE, Shanghai Jiao Tong University, co-authors a paper with her graduate student Yu LONG concerning the serious threats to the Arctic marine ecosystems. They examine existing legal regimes which are found to be fragmented and they therefore advocate adaptive changes such as the application of precautionary principles and an ­ecosystem-based approach. Professor Ronán Long, National University of Ireland, Galway, reviews the genesis of the EU’s Arctic policy as well as recent decisions of the EU Court of Justice and WTO’s Appellate Body. He discusses additional emphasis on the EU’s common fisheries policy and

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the EU’s e­ nvironmental policies. Lastly, Professor Ted L. McDorman, Faculty of Law, University of Victoria, acknowledges that there is an ocean governance s­ tructure for the Arctic Ocean. Still, he sees no comprehensive regional legal structure or a binding organizational structure and believes the Arctic Ocean continues to need both. The next two Parts in this volume address fisheries issues. Part 5 is directed to the changing fisheries in the Northeast Atlantic and Arctic Ocean. The Director General of the Marine Research Institute, Reykjavik, Iceland, Jóhann Sigurjónsson, provides an overview of recent changes in the migration patterns of large pelagic stocks due to warm water conditions, especially in the Norwegian and Icelandic Seas. He notes how climate variability can also affect important demersal species and stocks in northern areas. Erik J. Molenaar, Deputy Director, Netherlands Institute for the Law of Sea, next presents a comprehensive and detailed analysis of International Regulation of Central Arctic Ocean Fisheries. He provides a concise overview of the global component of international fisheries law and Arctic fisheries instruments and bodies and examines the relationship between the “Arctic Five’s” commitments and regional fisheries management organizations. Bjørn Kunoy follows with a spirited but well documented Assertion of Entitlement to Shared Fish Stocks. Dr. Kunoy is Legal Adviser to the Foreign Affairs Department, Faroe Islands, and he examines the difficulties of several transboundary fish stocks that migrate in the Northeast Atlantic. In Part 6, Stefán Ásmundsson, Secretary of the North East Atlantic Fisheries Commission, advances the thesis that freedom of fishing on the high seas is clearly limited by international law. He cites such limits in the 1995 UN Fish Stocks Agreement and in the 1982 Convention on the Law of the Sea as he explains the key role played by regional fisheries management organizations in conservation and management. A detailed examination of the allocation of fishing rights principles and alternative procedures is then presented by Professor Tore Henriksen, who leads the K.G. Jebsen Centre for the Law of the Sea, University of Tromsø. The author identifies principles such as zonal attachment and how newcomers are accommodated into a high seas fishery. He also analyzes how measures to conserve a fish stock straddling between areas under national jurisdiction and the high seas are coordinated. The last paper in Part 6 is by Rögnvaldur Hannesson, Professor Emeritus, Norwegian School of Economics, Bergen. He concentrates on the case of Atlantic Mackerel and discusses the breakdown of cooperative management when the stock recently appeared in the Icelandic EEZ. Part 7, the final section, contains papers on related law of the sea issues. Professor Robert Beckman, Director of the Centre for International Law at

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the National University of Singapore, looks at the UNCLOS Dispute Settlement Regime and Arctic Legal Issues. He introduces Part XV of UNCLOS and outlines several legal issues in the Arctic that could give rise to the use of these dispute settlement provisions. In his paper, he argues that although State Parties will be reluctant to invoke compulsory procedures in UNCLOS, there will be cases where the dispute settlement regime could play a useful role. Professor James Kraska of the US Naval War College focuses on Russia’s maritime security law along its Northern Sea Route. He emphasizes that in recent years Russia has adopted new rules to enhance security and to promote safe and efficient shipping. He states that Russia seeks to build greater capacity along the Northern Sea Route to attract international shipping and directly compete with the Suez Canal. The last article in the volume is titled Comments on the Three-stage Approach of Maritime Delimitation and was authored by Chuanxiang SUN. This paper was not presented at the Bergen Conference but was included because of its relevance and thought-provoking legal reasoning. The author questions the trend in courts and arbitrations to follow a three-step approach to determine a maritime boundary. His belief is that the method they follow is to first draw a provisional equidistance line, then to cite legally inadequate reasons to adjust this line and lastly to misapply the disproportionality test. Dr. SUN is Associate Professor at Shaoyang University, China. Conference PowerPoints are available at http://www.virginia.edu/colp/annual -conference.html

Setting the Context

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CHAPTER 1

Notes on Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries Liv Holmefjord 1 Norway has a long history of using the resources of the oceans. The development of marine industry and modern fishing has forced nations to establish international cooperation and bilateral and multilateral agreements, like the fisheries agreements between Norway and Russia and between Norway and the EU. Bergen is based on fish trade and quickly established itself as a center for trading across the North Sea. For nearly a couple of hundred years it was the capital of Norway until a Bergen-born duke based in Oslo became king and established a new administration there in the beginning of the 14th century. However, Bergen maintained its position as Norway and Scandinavia’s biggest and most important city by the establishment of the Hanseatic traders in the 14th century. Throughout the dark period under Danish rule the trade monopoly on goods from Northern Norway—generally, fish—enabled the city to develop into a marine centre in the North of Europe. In the 1850s the priest and zoologist Michael Sars and later his son marine biologist Georg Ossian Sars and his son-in-law, zoologist, and explorer Fritjof Nansen helped develop a marine research environment in Bergen. The work and initiatives from the Sars family laid the foundation for Norwegian marine research. Today Bergen arguably has the broadest and best marine research and management cluster in the world, consisting of a variety of private and governmental knowledge institutions. Bergen was a natural choice when it was decided to establish a fisheries management body in Norway. The Directorate of Fisheries started to operate in the year 1900 and our main focus in the beginning was research. Later we expanded our operations to finding fishing grounds for the fishing fleet, to establishing industry capacity on the coast, and to constructing quota systems. We divide our areas of operations in three: Fisheries, Aquaculture, and Marine Area Management. Traditional fisheries management has been the basic work for us. Later the development of a fast growing aquaculture ­industry 1  Director General of Fisheries, Norway.

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has given us new challenges and opportunities. Today we see a growing part of our capacity being used in a relatively new field of marine area management, where our job in many cases is to weigh different interests and plans in the coastal zone and on the high seas against each other. The basis of all modern management is research—which I guess is not exactly a surprise to you. But in addition to scientific advice, the managers must include political decisions and stakeholders’ perceptions into their management schemes. We must have a system that enables us to ensure that industry actors comply with the regulations and finally have efficient sanctions for violations. As you probably are aware, seafood is extremely important for Norway. To give you an impression on the importance of the seafood sector I will illustrate the point by comparing the seafood production and the production of beef and poultry. The total production of seafood in Norway in 2012, including both the total catch of wild fish and the production from aquaculture, was more than 3.4 million tonnes. The production of beef and poultry the same year was less than 10 percent of that, namely 325,000 tonnes. And further, more than 90 per cent of the seafood production is exported, whilst the agriculture industry sells more than 90 percent on the domestic market and exports less than 10 percent. The seafood industry is the second most important export industry, after oil and gas, and Norway is the second largest seafood export nation in the world. To maintain a position as a prosperous seafood nation with fish stocks in good condition and a profitable industry we need sustainable management, access to research, and good international cooperation. Norway shares about 90 percent of the fish resources with our neighbouring countries and a well-established system of international sea law is absolutely necessary. Every year we negotiate with our neighbouring countries, mainly with Russia and the EU, in order to agree on annual quotas of fish stocks migrating between national zones and in and out of international waters. In 1609 the Dutch jurist Hugo Grotius published his book Mare Liberum and Grotius’ message was that the sea should be free and belong to no one. This principle has then been the foundation for later regulations of sea transportation. The principle was challenged by Norway in 1951 when Great Britain brought the dispute between our two countries to the international court in The Hague. The issue was about how far out from the coast Norway could regulate British fishing vessels. In other words, how far out from the coast did Norwegian jurisdiction reach? The judgment was in Norway’s favour and became the foundation of the baseline principle. In 1982, the United Nations

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Convention on the Law of the Sea was finalized, and the Convention was fully ratified in 1994. I would like to use the cooperation between Russia and Norway as an example of a good international partnership on how to share resources in the sea. The cooperation between Norway and Russia started long before the UN Convention and just a few years after The Hague judgment. Historically the cooperation on trade between Northern Norway and the Northwest Russia goes far back and is known under the term Pomor trade. Formal cooperation on management of fisheries can be traced back to 1958 when the Soviet Union and Norway signed an agreement about research in the Barents and the Arctic seas. The basis for the cooperation was of course The Hague judgment and the realization on both sides that we shared big important fish stocks like cod, haddock and capelin. In 1976 an agreement on fisheries management between our countries was signed, one year before Norway, the Soviet Union and a number of other nations established national economical zones reaching 200 nautical miles out from the baselines. The fish stocks didn’t comply with the new boundaries and made the need for international agreements between countries sharing fish stocks even more necessary. The agreements were on how to share stocks, to license fishing fleets to fish in each other’s zones in order to be able to follow the fish when it migrates. The agreement also included technical regulations on mesh sizes and minimum sizes on certain species. This led to the need for further cooperation and in 1993 Norway and Russia made a new agreement, this time including control. Then in 2010 after 34 years of negotiations and talks Russia and Norway finally agreed on the maritime delimitation in the Barents Sea. For 34 years the two countries had a dispute whether the sea area between the countries should be divided using a sector line or a median line. We agreed on something in between and more important, the delimitation establishes the boundary between Russia and Norway on the continental shelf outside the Finnmark region in Norway and the Kola Peninsula in Russia. With this agreement we can say that the last missing part of the successful partnership between two neighbours was put in place. Climate change and revealing and utilization of new natural resources will give us new challenges in the years to come in the Arctic region. The work you do through your participation in the Center for Ocean Law and Policy is important in order to discuss and exchange knowledge about international sea law and to assist in making the decisions by the politicians and the managers even better.

CHAPTER 2

The Arctic and the Present Geopolitical Situation Hans Corell * The theme of this conference is highly interesting and relevant.1 In addition, it gives me an opportunity of meeting with so many friends from my years as the Legal Counsel of the United Nations from 1994–2004. However, I am addressing you also with some concern, reflected in the title of my remarks: The Arctic and the Present Geopolitical Situation. One of the six units of the UN Office of Legal Affairs is the Division for Ocean Affairs and the Law of the Sea. You will recall that in July 1990, then UN Secretary-General Perez de Cuellar convened a series of informal consultations to address certain difficulties with the seabed mining provisions contained in Part XI of the United Nations Convention on the Law of the Sea (UNCLOS). The two last meetings in a series of 15 were convened in April and in May–June 1994 by then Secretary-General Boutros Boutros-Ghali. I had the privilege of conducting these last two consultations on his behalf. The consultations came to a successful end, and on 28 July 1994 the General Assembly adopted the resulting Agreement Relating to the Implementation of Part XI of UNCLOS. There were many who contributed to this successful process, notably the different informal groups that were active in the consultations. I would like to mention in particular the contribution of the “Boat Paper Group”, chaired by Ambassador Satya Nandan of Fiji, who in his earlier capacity as Under-Secretary-General for Ocean Affairs and the Law of the Sea and Special Representative of the Secretary-General for the Law of the Sea had * Dr. Hans Corell served as Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations from March 1994 to March 2004. In this capacity, he was head of the Office of Legal Affairs in the United Nations Secretariat. Before joining the United Nations, he was Ambassador and Under-Secretary for Legal and Consular Affairs in the Swedish Ministry of Foreign Affairs from 1984 to 1994. 1  Opening remarks. The June, 2014, conference was hosted by John Norton Moore and Myron Nordquist on behalf of the Center for Oceans Law and Policy, University of Virginia School of Law, by Ernst Nordtveit on behalf of the University of Bergen, and by Tomas Heidar on behalf of the Law of the Sea Institute of Iceland. See http://www.virginia.edu/colp/pdf/bergen -program.pdf.

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convinced the Secretary-General to initiate the informal consultations. It is a great pleasure to recognize Satya Nandan here in our audience.2 Why this focus on UNCLOS in a conference on the Arctic? Well, as we all know, UNCLOS is the overarching legal regime that applies in the Arctic Ocean as it does in all oceans of the world. Part 1 of the contributions in this volume addresses evolving geomorphology, the Lomonosov Ridge, outer limits and bilateral delimitations, and risk assessment. Part 2 discusses the petroleum resources, sustainable petroleum activities and environmental aspects of hydrocarbon exploration. The third part looks at “still icy” Arctic shipping but also recent developments and essential factors in commercializing this shipping. Part 4 discusses settlement of disputes, challenges for the European Union, using morality as a way to manage natural resources in the Arctic, protection of Arctic marine ecosystems, and Arctic Ocean regional governance. Parts 5 and 6 focus on different aspects of fisheries in the Northeast Atlantic and the Arctic Ocean and regional fisheries management. And, finally, Part 7 concentrates on related law of the sea issues, such as settlement of disputes, maritime security, and development of a three-stage approach in the juridical practice of maritime delimitation. It is not my intention to dwell upon these issues in my brief opening remarks. Instead, I will attempt to put the situation in the Arctic in a geopolitical perspective against the background of the latest developments. One characteristic that I have noted during my engagement in the Arctic, in particular within the Arctic Governance Project3 and Arctic Frontiers,4 is that descriptions of the Arctic in the media are not always well-founded. There are often references to the Arctic as if it is “up for grabs” or a new Wild West.5 The

2  During the conference, Satya Nandan was presented with Peaceful Order In The World’s Oceans: Essays In Honor Of Satya N. Nandan, co-edited by Michael Lodge and Myron Nordquist, Martinus Nijhoff, 2014. 3  Final documents of the Arctic Governance Project April 2010, available at http://www.arctic governance.org/agp-report-and-action-agenda.156784.en.html. 4  Arctic Frontiers is an international arena addressing development in the Arctic. The conference discusses how upcoming opportunities and challenges may be handled to ensure viable economic growth and societal and environmental sustainability. Annually the conference attracts more than 1000 participants from 25 Arctic and non-Arctic countries, representing science, business, politics, and civil society. The conference takes place in the Norwegian city of Tromsø, historically known as the Arctic Gateway. See http://www.arcticfrontiers.com/. 5  See, e.g., The Arctic Ocean up for Grabs by Laura Stackhouse in INSIDE VIEW, 5 March 2014 available at http://readmt.com/analysis/article/2014/03/05/final-frontier-the-arctic-ocean -up-for-grabs/ and Militaries Know That The Arctic Is Melting—Here’s How They’re Taking

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Russian flag planting, which of course has no legal significance whatsoever, has also given rise to much speculation and misunderstanding. It is therefore important to emphasize that there is a legal regime that applies in the Arctic, namely UNCLOS, to which all the Arctic states, except the United States of America, are parties. The missing US ratification is of course deplorable. At the same time the United States recognizes and respects the Convention. Reference should also be made to the Ilulissat Declaration, adopted on 28 May 2008 by the five coastal States bordering on the Arctic Ocean.6 The following part of the declaration is of particular interest here: Notably, the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims.7 It is against this background that I have maintained in the past, in particular in a 2009 article entitled, The Arctic: An Opportunity to Cooperate and Demonstrate Statesmanship that the Arctic actually offers an opportunity for states concerned and in particular the Arctic coastal States to demonstrate that they are able to cooperate actively in a constructive manner.8 I also noted with particular interest the address by then Prime Minister Vladimir Putin to the International Arctic Forum on 23 September 2010.9 Let me quote the two following passages from the address: And we think that preserving the Arctic as a zone of peace and cooperation is of the utmost importance. It is our conviction that the Arctic area should serve as a platform for uniting forces for genuine partnership in Advantage by Jeremy Bender & Michael Kelley in BUSINESS INSIDER, 3 June 2014, available at http://www.businessinsider.com/the-competition-for-arctic-resources-2014-6. 6  Arctic Ocean Conference, Ilulissat, Greenland, May 27–29, 2008, Ilulissat Declaration (May 28, 2008), in DANISH FOREIGN POLICY YEARBOOK 2009 154, 154 (Danish Inst. for Int’l Studies ed., 2009). 7  Id. 8  Hans Corell. The Arctic: An Opportunity to Cooperate and Demonstrate Statesmanship, VANDERBILT JOURNAL OF TRANSNATIONAL LAW, Vol. 42: 1065 (pp. 1065–1079), available at http://www.havc.se/res/SelectedMaterial/20090206corellarcticopportunity.pdf. 9  Vladimir Putin’s address to the International Arctic Forum, available at http://int.rgo.ru/ news/vladimir-putin%E2%80%99s-address-to-the-international-arctic-forum/.

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the economy, security, science, education and the preservation of the North’s cultural heritage. It is gratifying that our partners share this attitude. And a few moments later: Indeed, the Arctic is at the juncture of serious geopolitical and economic interests. However, I have got no doubts at all that the existing issues in the Arctic, including those related to the continental shelf, can be resolved in a spirit of partnership through negotiations and on the basis of existing international law. The question is, however, if the situation has changed in view of the latest development. I am thinking in particular of Russia’s violation of the sovereignty of Ukraine. The situation is exacerbated by the fact that the Russian Federation is one of the five permanent members of the Security Council of the United Nations. No doubt, this is a very serious development that will have negative effects on the relations within the international community in the future. I have also noted several articles in the media, referring directly to potentially negative effects of the Ukraine situation on cooperation in the Arctic.10 Russia’s annexation of the Crimean peninsula is an obvious and flagrant violation of international law. So was the attack on Georgia back in 2008. However, as I said in an address in New York on nuclear disarmament on 2 April, 2014, those who criticize the Russian Federation, and in particular the United States, should remember that the attack on Iraq in 2003 was likewise a flagrant violation of international law. And in the discussions over the last couple of years about the situation in Iran and in Syria, it would seem as if some members of the US Congress do not even understand that the UN Charter does not allow the use of force unless in self-defence (which is not the case here) or after a clear and unambiguous resolution by the UN Security Council. Here I will reiterate what I said in New York on 2 April because it is just as relevant to the Arctic as it is to nuclear disarmament. Personally, I am seriously concerned at the negative effects that the Russian annexation of the Crimean peninsula will have on the political climate in the future. We certainly do not know what President Putin may be up to next. 10  See, e.g., Alexander Pilyasov, The Arctic Council’s Ukraine Challenge, BARENTS OBSERVER, 12 May 2014, available at http://barentsobserver.com/en/opinion/2014/05/arctic -councils-ukraine-challenge-12-05.

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At the same time, I am very critical of the behaviour of the Western powers when the Berlin Wall came down in 1989 and the Cold War ended. They had obviously completely forgotten the lessons from the two World Wars in the last century. The Peace of Versailles was a disaster in many ways.11 In a sense it humiliated Germany in a manner that it paved the way for Adolf Hitler. During the Second World War the Allies, and in particular the United States, understood that it was necessary to create a partner of the former enemies and acted accordingly. The result is that, today, Germany is a leading actor in Europe and a member of both NATO and the European Union. So, what happened when the Berlin Wall came down? Did the Western powers engage with sufficient seriousness in their contacts with Moscow? Did they go to Moscow explaining that the West and the Russian Federation have one overarching major common interest: we must not get into an armed conflict with each other! Instead, the West started going it alone and the United States even made plans for establishing rocket ramps in Poland and the Czech Republic, as if they had never heard of the Cuban crisis in the early 1960s. At that time the United States and the Soviet Union could have become engaged in a war, had not President Kennedy dealt with the matter as sensibly as he did. The obvious lesson from the past century must be: after a war—also a Cold War—never ever humiliate your former enemy. I am not for a moment suggesting that this excuses President Putin’s behaviour towards Ukraine. But had the West engaged with sufficient interest and energy in the Russian Federation from the very outset, maybe today the country could have been on a steady course towards true democracy and the rule of law.12 Let me add that I fully understand the concern in Moscow in relation to Crimea with the Russian naval base in Sevastopol and its strategic importance. But I am sure that the status of Crimea, given its history and the geopolitical situation, could have been resolved through negotiations in full conformity with international law and the Helsinki Accords, provided that enough statesmanship had been demonstrated in Moscow, Kiev and, not least, in the West. 11  See, e.g., JOHN MAYNARD KEYNES, THE ECONOMIC CONSEQUENCES OF THE PEACE (1920), available at http://www.gutenberg.org/files/15776/15776-h/15776-h.htm. 12  Reference is made to a publication entitled Rule of Law—A Guide for Politicians. This is a guide elaborated under the auspices of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law at Lund University, Sweden, and The Hague Institute for the Internationalisation of Law (HiiL), the Netherlands. The guide is now translated into thirteen languages, among them Russian. It is available at http://rwi.lu.se/what-we-do/ academic-activities/pub/rule-of-law-a-guide-for-politicians/. The idea of this guide was born in a meeting of the InterAction Council of Former Heads of State and Government in 2008.

The Arctic And The Present Geopolitical Situation

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With respect to the Arctic, we see an increasing and fully legitimate interest in the Arctic also from countries outside the Arctic region, among others, the United Kingdom, France, Germany, China, Japan, South Korea, and Singapore. We should also not forget the interest demonstrated by the European Union. The reason is of course that if the Arctic Ocean becomes more open and accessible for navigation, basically, all states are entitled to have their vessels flying their flags there, provided that they observe existing rules. At the same time we must note with concern the manner in which some states behave in relation to maritime disputes, notably the present disputes relating to the South China Sea and the Senkaku/Diaoyu Islands. UNCLOS requires that disputes of this nature are settled peacefully by negotiations or through arbitration or proceedings before the International Court of Justice or the International Tribunal for the Law of the Sea. It is crucial that the main actors here are able to demonstrate the necessary statesmanship in order to find peaceful solutions. Notably, the situations referred to here and the situation in the Arctic concern more or less directly all of the five permanent members of the UN Security Council, as do the situations in Syria, Ukraine and Iraq. In analysing the existing geopolitical situation one always ends up in the Security Council and the role that the Council should play in establishing the rule of law at the international level. As I have said so many times, if permanent members of the Security Council violate the very law they are set to supervise, what signal does this send to the world?13 Rule of law at the national and international level is the only way ahead if we are to be able to deal with the formidable threats to humankind that we see emerging, generated by poverty, water shortage, diseases, the growing world population, climate change, rising sea levels, desertification, terrorism, transboundary crime, corruption, etc. Focusing on the Arctic, I reiterate my plea from 2009 that good relations between Moscow and Washington are imperative for a more positive development in the field of international peace and security.14 The unfortunate tensions that have developed between the two major powers bordering the Arctic simply must be removed, and this can be achieved only through a demonstration of statesmanship on both sides. 13  See, e.g., Reforming the United Nations Security Council. Keynote Address at Conference Henri Lafontaine, a joint initiative of Uppsala University and Wallonie Bruxelles International, held at Uppsala, Sweden on 11 December 2013, available at http://www .havc.se/res/SelectedMaterial/20131211corellonscreform.pdf. 14  Cf. note 8 supra.

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It is extremely important that the issues which concern the Arctic, including the questions we are to discuss in our conference, are addressed at the highest political level and solved in good cooperation. Decisions should be taken which are founded on well-structured information and based on solid research.15 Let us hope that the Arctic Council will continue to provide a forum for responsible interaction among the states in the High North. After all, we live in the 21st century!

15  Cf. Report of the Conference “Common Concern for the Arctic”, organized by the Nordic Council of Ministers on 9–10 September 2008 at Ilulissat, Greenland, available at http://www.norden.org/da/publikationer/publikationer/2008-750/at_download/ publicationfile.

part 1 Arctic Continental Shelf

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CHAPTER 3

The Arctic Continental Shelf and Its Evolving Morphologic Context Larry Mayer 1 Abstract The morphologic context of the Arctic Ocean has been established through seafloor mapping. This mapping has created a geospatial framework that sets the context for discovery, for resource exploration and exploitation and for understanding the circulation of ocean currents that distribute heat and control fisheries and climate. Of particular relevance to this meeting is the fact that this same mapping provides the context for establishing sovereign rights over resources of the seafloor and the subsurface under Article 76 of UNCLOS. While we don’t think about morphology as something that changes (except on plate tectonic scales or in response to catastrophic events like earthquakes and submarine landslides), for the Arctic Ocean, it is our knowledge and understanding of the morphology that has changed radically in the course of our lifetimes. This change in understanding has been made possible by equally remarkable changes in the environmental conditions (particularly sea ice cover) in the Arctic. The first deep sea soundings in the Arctic were made by Fridtjof Nansen during his vessel FRAM’s remarkable three year drift across the Arctic Ocean in the late 1800s. From that time until the beginning of this century, knowledge of the depths of the Arctic came in dribs and drabs, with individual measurements made from drifting ice islands or teams deployed by aircraft lowering instruments through the ice. As the 21st century began, prompted by the need to map in order to make submissions under Article 76, the five Arctic coastal States began concerted efforts to map the Arctic seafloor using modern multi-beam sonar technology deployed from large icebreakers. Despite the use of large icebreakers, these efforts would not have been possible without the concurrent significant decline in Arctic sea ice documented by satellite imagery over the past 30 years (at a rate of about a 13 percent decline per decade for the summer ice minimum). These new mapping efforts have revolutionized our 1  Director, Center for Coastal and Ocean Mapping, University of New Hampshire, Durham, NH, USA. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/bergen -mayer.pdf.

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004314252_005

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­ nderstanding of the morphology of the Arctic basins and their continental shelves u and will have important ramifications on the submissions made by the coastal States. Of particular significance with respect to these submissions is the fact that the five coastal States have opposing margins in the Arctic and thus there will inevitably be the potential for significant overlap in their respective continental shelves. While there has been some cooperation between coastal States in the collection of bathymetric and seismic data in the Arctic, there has not been similar cooperation in the morphologic analyses of the features mapped. Given the logistical difficulties associated with mapping in the Arctic, the piecemeal nature of the way that data are collected, and the long delays before data are submitted to the CLCS and eventually made public, there is the possibility that neighboring coastal States may choose different features to represent the “foot of the slope” on the same broad margin feature. This raises the question of whether the same margin can have two regions representing the foot of the slope or more broadly the question of whether the “foot of the slope” is a physical entity and if so, can a given margin only have one?

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Introduction: The Geospatial Framework

We began our conference on “Challenges of a Changing Arctic” with a discussion of the evolving morphological context of the Arctic continental shelf. By morphological context we mean the shape and characteristics of the continental shelf as established through seafloor mapping. Mapping is the first activity carried out in any unexplored region and, if done properly, it establishes a geospatial framework that sets the context for all future activities including further exploration and discovery as well as resource exploration and exploitation. Seafloor mapping also provides critical information for understanding the circulation of deep ocean currents that distribute heat and ultimately control climate and fisheries. Of particular relevance to this meeting is the fact that this same mapping provides the context for establishing sovereign rights over resources of the seafloor and the subsurface under Article 76 of the UN Convention on the Law of the Sea. Five coastal States border the Arctic Ocean (Canada, Denmark through Greenland, Norway, Russia and the United States) and given the fact that 52 percent of the Arctic Ocean’s seafloor consists of relatively shallow geologic continental shelf (far more than any other ocean basin—the Atlantic is next highest with less than 20 percent), it is quite likely that as much as 90 percent of the Arctic Ocean may become juridical or ‘extended’ continental shelf. Therefore, establishing this morphological context is an essential starting point for any discussion of resource exploration and exploitation, environmental conditions, and delineation of the juridical continental shelf.

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Our meeting was focused on the challenges of a changing Arctic yet we do not often think about morphology as something that changes (except on the millions-of-years scale of plate tectonics or in response to catastrophic events like earthquakes and submarine landslides). For the Arctic Ocean, however, it is our knowledge and understanding of the morphology that has changed radically over the past 10 to 15 years and this change in understanding has been made possible by equally remarkable changes in the environmental conditions (particularly sea ice cover) in the Arctic. This paper will explore the evolution of our understanding of the morphology of the Arctic Ocean and how our advances in understanding this morphology have been facilitated by significant environmental changes in the Arctic. We will then look at how these rapid changes in our understanding of the morphology of the Arctic, combined with the geometry of the Arctic Basin and the processes by which data in support of Article 76 submissions are being collected, may have interesting ramifications with respect to the application of Article 76. 2

The Evolution of Our Understanding of the Morphology of the Arctic Ocean Seafloor

2.1 Historical Context The Arctic has always been a source of mystery and adventure. Remarkably resilient native communities have inhabited the periphery of the Arctic Ocean for thousands of years, and early explorers were drawn north by commerce (whaling and seal hunting) or by a desire to explore the unknown and reach the “top of the world.” While legend spoke of warm and open waters in the region of the North Pole, exploration was limited by the ubiquitous ice at latitudes beyond 75 to 80 degrees north. Explorers ventured out on the ice by foot or with dog teams but what lay beneath the vast ice-covered regions of the Arctic remained absolutely unknown until the twentieth century. Gerhard Mercator produced one of the first maps of the Arctic in 1569 (originally a small inset on a larger world map and published as an individual map posthumously in 1595 as part of the Atlantis pars altera). This map depicted the North Pole to be a small island surrounded by a warm and open sea that was in turn surrounded by four large land masses separated by rivers connecting to the oceans to the south2 (Figure 3.1). As late as 1868, maps produced by Augustus Petermann, one 2  Image “Septentrionalium Terrarum descriptio” is from http://libweb5.princeton.edu/visual_ materials/maps/websites/northwest-passage/mercator.htm.  Mercator originally published a world map in 1569 with this depiction of the Arctic as an inset.

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FIGURE 3.1 Mercator’s depiction of the Arctic Polar region, 1595.

of the most famous cartographers of his time, showed Greenland ­extending as a landmass under the Arctic ice across the entire Arctic Basin connecting to Wrangell Island near the Bering Strait3 (Figure 3.2). A 1906 map by Tunison4 (Figure 3.3) offered perhaps a more honest description, leaving the Arctic Basin white and labeling it “Unknown Regions.”

3  Nordpolarkarte. A map of the North Pole showing a hypothetical Arctic landmass. In: “Die ArktischeFischerei der Deutschen Seestadte 1620–1868” by Moritz Lindeman Zwei Karten Von A Petermann. (Erganzungsheft No. 26 zu Petermann’s ‘Geographische Mittheilungen’) 1869. P. 118. From http://www.photolib.noaa.gov/htmls/libr0642.htm Image ID: libr0642, Treasures of NOAA Library Collection. 4  Image from map in author’s collection.

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FIGURE 3.2 August Petermann’s map of the Arctic 1868.

Depicted on Tunison’s map, however, is the track of the three year (1893–1896) drift of the Fridtjof Nansen’s vessel Fram, intentionally locked into the ice near the New Siberian Islands with the hope of drifting over the North Pole. While the drift of the Fram did not carry it directly over the North Pole (it missed by approximately 240 nm), the voyage was a remarkable success that proved Nansen’s theory about the circulation of ice in the Arctic and led to the collection of much valuable scientific data including the first deep soundings beneath the ice in the Arctic. During the three year voyage, the Fram collected seven deep “soundings” using a lead weight at the end of a wire rope to m ­ easure

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FIGURE 3.3 Tunison’s Map of Polar Regions and Arctic Discoveries, 1906.

the depth of the seafloor beneath the ice. From these seven soundings Nansen remarkably concluded that a vast deep ocean basin existed beneath the ice and published the first bathymetric chart of the Arctic in 1907 (Figure 3.4).5 Over the next 40 years a few thousand more lead line soundings were made as explorers and scientists ventured into the ice on vessels or with dog teams. Each measurement, either through the ice or in an open lead, was a difficult, time consuming, and relatively inaccurate exercise of lowering a lead weight thousands of meters until it touched the bottom. With the advent of the Second World War, single beam echo sounders (measuring the time it takes a sound pulse to travel from the surface to the seafloor) replaced lead lines and measurements of depth became much more rapid and accurate. At the same time, Cold War tensions led to much activity in the Arctic, particularly by the Soviets and Americans. Echo sounders were 5  Image from plate in Nansen, Fridtjof (1897), Farthest North, Volumes I and II, London: Archibald Constable & Co. in author’s collection.

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FIGURE 3.4 Nansen’s 1907 map of the Arctic Basin. Note the 7 depth soundings on the eastern side of the basin.

deployed on drifting ice islands, on submarines, and flown by plane or helicopter out onto the ice where holes were drilled and depth measurements made. As these measurements began to accumulate, a more detailed but still extremely coarse picture of the nature of the bathymetry of the Arctic began to emerge. The Canadian Hydrographic Service working with GEBCO6 (General Bathymetric Chart of the Oceans) produced a series of Arctic charts in the late 1960s and 1970s that clearly depicted the major physiographic features of the Arctic with two deep basins (Eurasian and Amerasian) and several major ridges (Lomonosov, Alpha-Mendeleev, and Gakel) and plateaus (Chukchi, 6  The General Bathymetric Chart of the Oceans (GEBCO) consists of an international group of experts who work on the development of a range of bathymetric data sets and data products, including gridded bathymetric data sets, the GEBCO Digital Atlas, the GEBCO world map and the GEBCO Gazetteer of Undersea Feature Names. GEBCO operates under the joint auspices of the Intergovernmental Oceanographic Commission (IOC) (of UNESCO) and the International Hydrographic Organization (IHO).

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FIGURE 3.5 Initial (1999) version of IBCAO compilation of Arctic Bathymetry; Jakobsson et al., 1999.

Yermak). In the 1990s the International Bathymetric Chart of the Arctic Ocean Project began to compile all existing bathymetric data from the Arctic, including declassified data from US nuclear submarines. Using modern digital compilation, gridding, and visualization techniques, the IBCAO project produced a remarkable depiction of Arctic bathymetry (Figure 3.5; Jakobsson et al., 20007) though one that was still based on inherently sparse data.

7  The first IBCAO compilation was presented at the 1999 American Geophysical Union Meeting in San Francisco—Jakobsson, M., N. Cherkis, J. Woodward, R. Macnab, and B. Coakley (2000), “New grid of Arctic bathymetry aids scientists and mapmakers,” EOS, Transactions American Geophysical Union, vol. 81, p. 89.

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2.2 Arctic Mapping in the 21st Century Entering into the 21st century, interest in mapping the bathymetry of the Arctic greatly increased, driven by two factors. First was, and is, the growing awareness and concern about global climate change. Many studies, including those by the Intergovernmental Panel on Climate Change,8 have demonstrated that climate change is occurring most rapidly in high latitudes, particularly the Arctic and that understanding Arctic climate change is critical to understanding global change. Scientists approach an understanding of climate change and its potential impact on humanity through the development of models of the response of the earth’s climate system to various population and carbon production scenarios. These models are complex constructions that include mathematical descriptions of the earth’s oceans and atmospheric systems and the coupling between them. A critical component of these models is an understanding of how heat is distributed by both surface and deep ocean currents. The flow of deep water masses is controlled by the bathymetry—ridges and sills can block or divert deep currents and deep passages can constrain or direct flow. Understanding the bathymetry and thus the routes that deep ocean currents will follow is critical in developing climate models. The second driver of increased Arctic mapping in the twenty-first century has been the Convention on the Law of the Sea. Article 76 of the Convention defines a juridical continental shelf and a process by which coastal States can establish the limits of the continental shelf beyond 200 nautical miles if ­certain morphologic and geologic criteria are met (we will refer to this area as the “extended continental shelf” for clarity). In the extended continental shelf, the state has sovereign rights over the resources of the seafloor and subsurface. The process of establishing the limits of the extended continental shelf involves, among other things, establishing the location of the “foot of the slope” (defined as the maximum change in gradient at its base), the 2500 m depth contour, and the thickness of the sediment accumulated in those regions seaward of the foot of the slope. To establish the limits of the juridical continental shelf beyond 200 nm detailed mapping of the seafloor and subsurface is

8  IPCC—http://www.ipcc.ch/organization/organization.shtml. The Intergovernmental Panel on Climate Change (IPCC) is the leading international body for the assessment of climate change. The IPCC is a scientific body under the auspices of the United Nations (UN). It reviews and assesses the most recent scientific, technical and socio-economic information produced worldwide relevant to the understanding of climate change. It does not conduct any research nor does it monitor climate related data or parameters.

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required. With growing recognition of the resource potential of the Arctic9 and the realization that changing climatic conditions may make these resources more accessible, each of the Arctic coastal States (Canada, Denmark (through Greenland), Norway, Russia and the United States) has aggressively pursued mapping programs to establish the limits of their extended continental shelves in the Arctic. As interest in mapping the Arctic has grown, the technology used to map the seafloor has undergone substantial advancement. Towards the end of the 20th century, the simple “single-beam” echo sounder that had been used for measuring depth since the end of the Second World War began to be replaced by “multi-beam echo sounders,” sophisticated instruments that use large arrays of sonar transducers and beam forming technology to make many, highly accurate measurements of depth simultaneously over a wide swath (typically 3 to 5 times the water depth) of the seafloor (Figure 3.6). This new technology revolutionized seafloor mapping and has been used by many coastal States to collect the data needed to establish the limits of their extended continental shelves. The collection of multi-beam echo sounder data in the Arctic, however, is problematic as these large systems (a typical deep water multi-beam echo sounder is on the order of eight meters long) cannot be deployed by plane or helicopter like single beam echo sounders. Rather, they must be deployed on large vessels and, given that much of the area of potential extended continental shelf in the Arctic is often ice-covered year-round, for Arctic mapping, the multi-beam echo sounders must be deployed on powerful icebreakers. Recognizing this need, deep water multi-beam sonars have been installed on several large Arctic icebreakers—Germany’s icebreaker Polarstern, Sweden’s icebreaker Oden, the US icebreaker Healy, the Russian icebreaker Akademik Fedorov, and most recently the Canadian icebreaker Louis S. St. Laurent. Despite this combination of powerful icebreakers and multi-beam echo sounders, it is still very difficult to map in ice-covered waters—the noise of breaking ice greatly impacts the quality of the data being collected. While this problem can be somewhat mitigated by sending two icebreakers and having the mapping icebreaker follow a path cut by a leading icebreaker, this becomes a very expensive and logistically complex endeavor. Recent dramatic changes in the extent and thickness of sea ice in the Arctic, however, have created a situation that has made this mapping possible (though still difficult) over the past few years. 9  Bird, Kenneth J., Charpentier, Ronald R., Gautier, Donald L., Houseknecht, David W., Klett, Timothy R., Pitman, Janet K., Moore, Thomas E., Schenk, Christopher J., Tennyson, Marilyn E. and Wandrey, Craig J., 2008, Circum-Arctic resource appraisal; estimates of undiscovered oil and gas north of the Arctic Circle: U.S. Geological Survey Fact Sheet 2008–3049, 4 p. [http:// pubs.usgs.gov/fs/2008/3049/].

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FIGURE 3.6 Geometry of multi-beam sonar.10

3

The Changing Sea Ice Conditions in the Arctic

Two issues impact the access of mapping or any other vessels to the Arctic: 1) the extent (area) of sea ice coverage; and 2) the thickness of the ice. The sea ice cover in the Arctic goes through an annual cycle with the maximum extent (defined as the area of the ocean with at least 15% sea ice) typically in mid-March and a minimum extent typically in mid-September. Satellites have provided accurate information on the extent of the sea ice cover since about 1979, and over this period the average mid-March maximum extent of sea ice coverage is about 15 million km2 and the average mid-September minimum has been about 6 million km2. The total area of the Arctic Ocean is on the order of 14 million km2 and thus in the winter the entire Arctic Ocean (and beyond) is covered with sea ice; at the summer minimum, on average, slightly less than half the Arctic Ocean is covered with sea ice.11 Since 1979, however, there has been a steady decline in both the maximum and particularly the minimum extent of sea ice in the Arctic. While 10  Image from http://oceanservice.noaa.gov/gallery/multibeam_b.jpg. 11  IPCC, 2013: “Summary for Policymakers.” In: Climate Change 2013: The Physical Science Basis: Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Stocker, T.F., D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA.

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FIGURE 3.7 Minimum (September) ice extent in the Arctic, 1979–2013.

the m ­ aximum sea ice extent has declined about 2.5 percent per decade, the minimum has declined at a rate of approximately 13 percent per decade. Superimposed on this general steady decline are annual variations with an extreme low in sea ice extent in 2007 (4.28 million km2) and a recordbreaking extreme low of approximately 3.29 million km2 in 2012 (Figure 3.7).12 To illustrate just how extreme the 2012 ice extent was we present images taken from a camera mounted high atop the US Coast Guard icebreaker Healy (Figure 3.8) while conducting extended continental shelf surveys in the Arctic in 2007 and 2012 (Mayer et al., 2007; Mayer et al., 2012).13 Each image is taken at approximately the same location (156.07W and 80.29N) on almost the same day of the year (September 6 in 2007 and September 12 in 2012). While the 2007 image shows many melt ponds and a clearly degrading ice pack, the 2012 image shows totally open water even at 80.29N. In previous years (including 2007), the Healy would encounter the sea ice margin at approximately 75 to 76 degrees north; in 2012, the ice margin was well beyond 80 degrees North— nearly 300 miles farther north than previous years. While those denying climate change are quick to comment that the minimum sea ice extent in 2013 12  National Snow and Ice Data Center. http://nsidc.org/arcticseaicenews/2012/09/arctic -sea-ice-extent-settles-at-record-seasonal-minimum/. 13  Ibid.

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FIGURE 3.8 Sea ice from Healy “aloft-con” camera on 6 Sept 2007 at 159.07W and 80.29N (left). Image from Healy aloft-con cameral on 12 Sept 2012 at approximately the same location (right). Note ice margin in far field of the 2012 image.

increased significantly relative to 2012 (∼5.1 million km2; Figure 3.7),14 they fail to point out that the 2013 value was still the sixth lowest in recorded history. It is this steady reduction in sea ice during the summer work season that has allowed the Arctic coastal States to collect an unprecedented amount of new mapping data in the Arctic, most of it in support of their respective extended continental shelf mapping projects. 4

Brief Review of Current Arctic Mapping Activities Related to Article 76

As mentioned earlier, each of the Arctic coastal States has undertaken extensive mapping activities to support the establishment of extended continental shelves in the Arctic. Here we will briefly review the status of their activities based on publicly available sources. 4.1 Norway Norway has three regions of potential extended continental shelf with one of those regions (the western Nansen Basin) in the formal Arctic Ocean (Figure 3.9). Norway has completed its mapping activities and made its submission to the Committee on the Limits of the Continental Shelf (CLCS) on 27 November 2006. After a period of review and negotiation, Norway received positive recommendations for its submission on 27 March 2009. 14  http://nsidc.org/arcticseaicenews/2013/09/.

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FIGURE 3.9 Regions where Norway has mapped for establishment of extended continental shelf, including the Western Nansen Basin (red oval) in the Arctic Ocean.

4.2 Kingdom of Denmark The Kingdom of Denmark has five areas surrounding Greenland that may qualify for extended continental shelf including a large area in the Arctic Ocean encompassing parts of the Lomonosov Ridge and the North Pole (Figure 3.10). This region of the Arctic is one of the most difficult to work in, even during times of minimum ice extent as it sits at the end of an Arctic circulation system that transports ice to the region and puts it under great pressure. To map in this region the Danes staged several expeditions, using the Swedish icebreaker Oden equipped with a multi-beam echo sounder and, in the most difficult regions of the Lincoln Sea, an escort by a Russian nuclear icebreaker. Spot ­single-beam echo sounder measurements from helicopters supplemented these surveys. Just north of Greenland, where the Lomonosov Ridge intersects with the continental margin of Greenland, the Danish and Canadian governments ­carried out a collaborative ice-based seismic refraction program to measure the thickness and nature of the deep crust. The Kingdom of Denmark s­ ubmitted the documentation on the limits of its continental shelf north of Greenland to the CLCS on 15 December 2014 and is now awaiting the recommendations of the Commission.

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FIGURE 3.10

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Areas of potential extended continental shelf for the Kingdom of Denmark (left) and details of Danish mapping programs in an area north of Greenland (right).

4.3 Canada Canada has potential extended continental shelf in the North Atlantic off its eastern margin and in the Arctic Ocean in the region north of the Canadian Archipelago stretching from the McKenzie Delta in the west to the Lomonosov Ridge in the east. As mentioned above, in the eastern Arctic, the Canadians collaborated with the Danes to collect data in the area of the Lomonosov Ridge. In the western Arctic, despite the fact that there are still unresolved maritime boundaries between the Canada and the United States, the two countries collaborated on four expeditions to map the seafloor and measure sediment thickness in the area of the Canadian Basin. For this collaboration, the Canadian icebreaker Louis S. St. Laurent with a specially designed (for work in the ice) seismic profiling system (to measure sediment thickness), and the US icebreaker Healy equipped with a multi-beam echo sounder worked in tandem with one breaking ice ahead of the other depending on the priority of the data needed (seismic or bathymetry; Figure 3.11). In December 2013, Canada planned to submit documentation to the CLCS for the establishment of ECS in both the Arctic and the North Atlantic. At the last minute, the Arctic component of this submission was withdrawn by order of

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FIGURE 3.11

USCG icebreaker Healy ( foreground) and Canadian CG icebreaker Louis S. St. Laurent (background) working collaboratively in the Canada Basin (left); Seismic and bathymetric lines collected through collaborative Canadian-US operations in the Canada Basin between 2006 and 2010 (white lines) (right).

the Canadian Prime Minister, and those working on the submission were told to collect new data and re-evaluate Canada’s entitlement to establish an extended continental shelf that included the North Pole (the original draft submission did not). In response to this, in the spring of 2014, Canada installed a multi-beam echo sounder on the icebreaker Louis S. St. Laurent and began, in the summer of 2014, the first of several seasons of mapping in the North Pole region.15 4.4 Russia In 2001, Russia was the first coastal State to make a submission to the CLCS. Its initial submission for extended continental shelf over a large portion of the Arctic (Figure 3.12) did not receive positive recommendations from the Commission, with questions raised about the paucity of data upon which the submission was based. Since this time Russia has equipped the icebreaker Akademik Fedorov with a modern multi-beam system and undertaken a number of new mapping and sampling expeditions in the regions of the Mendeleev and Lomonosov Ridges, and the Podvonikov, Makarov and Amundsen Basins (Figure 3.13). These surveys have been conducted on the western side of the 15 

http://www.theguardian.com/world/2013/dec/10/canada-north-pole-claim.

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FIGURE 3.12

Russian submission to the CLCS for an extended continental shelf in 2001.

FIGURE 3.13

Recent Russian mapping activity in the Arctic to support their revised submission to the CLCS. Yellow dots indicate preliminary locations of foot of slope points based on Russian data collection.

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negotiated maritime boundary between Russia and the United States.16 Russia will be re-introducing a revised submission for the Arctic to CLCS in the near future. 4.5 United States Since 2003, the United States has undertaken eight mapping cruises on the US Coast Guard icebreaker Healy dedicated to collecting data in support of the establishment of an extended continental shelf in the Arctic in the vicinity of the Chukchi Plateau. To date more than 420,000 km2 of new high-resolution multi-beam echo sounder data has been collected (Figure 3.14). As mentioned above, four of these cruises (those focused on the Canadian Basin) were done in collaboration with the Canadian icebreaker Louis S. St. Laurent. As with the Russian surveys which were conducted on the Russian side of the negotiated Russian/US maritime boundary along the 168° 58′ 37″ meridian, the US survey efforts were focused almost entirely on the US side of the negotiated maritime boundary line. The new high resolution echo sounder data presented a substantially different picture of the seafloor morphology than that derived from the earlier sparse sounding data sets that were used for pre-survey planning and a desktop study conducted in 2002 (Mayer et al., 2002).17 The most significant difference revealed by the new data was that an area north of the Chukchi Cap that had, on early maps been labelled “Mendeleev Abyssal Plain,” was not an abyssal plain but rather an elevated platform 500 to 700 m above the depth of the Canada Basin (Figure 3.15). This morphological relationship as well as supporting high-resolution seismic data led to the conclusion that the foot of the slope in this region was located at the boundary with the Canada Basin (Figure 3.15). 16  In 1990 the United States negotiated a maritime boundary agreement with the Soviet Union but it has yet to be approved by the Russian parliament. The US Senate gave its advice and consent to ratification on September 16, 1991. Both the United States and Russia appear to be respecting this boundary. The boundary line extends from the position 65° 30′ N, 168° 58′ 37″ W and extends north along the 168° 58′ 37″ W meridian into the Arctic Ocean “as far as permitted under international law.” This statement should extend the boundary through any established extended continental shelf. 17  In 2002 a desktop study was conducted to determine where the United States might have extended continental shelf as well as to examine the state of current data holdings for those areas. L.A. Mayer, Jakobsson, M., and Armstrong, A.A., “The Compilation and Analysis of Data Relevant to a U.S. Claim Under United Nations Law of the Sea Article 76: A Preliminary Report”, University of New Hampshire (UNH), Center for Coastal and Ocean Mapping (CCOM)/Joint Hydrographic Center (JHC), 2002. http://ccom.unh.edu/ theme/law-sea/reports.

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FIGURE 3.14

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US ECS Arctic Mapping 2003, 2004, 2007, 2008, 2009, 2010, 2011, 2012.18

Multiple Feet of the Slope?

The combination of the limited data available in the Arctic, often independent data collection by coastal States in very difficult conditions, shared margins, and a negotiated maritime boundary leads to a potentially interesting situation in the region of the Chukchi Cap and its northern extension. As discussed above, the Russians have recently undertaken substantive surveys using modern multi-beam mapping systems in the region west of the negotiated maritime 18  http://ccom.unh.edu/theme/law-sea/arctic-ocean.

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Mayer 

Comparison of earlier chart of northern Chukchi region (left) with new data (right). In earlier versions (before new multi-beam sonar data was collected), the region north of Chukchi was labelled “Mendeleev Abyssal Plain.” New data revealed that this area is an elevated platform, 500 to 700 meters above the abyssal plain depths as seen in cross section (yellow line in original) across new data (lower image).

boundary at the 168° 58′ 37″ meridian (Figure 3.13). If we take a close look at the preliminary foot of the slope points presented by the Russians (Alekseyev et al., 2013)19 we see that within the context of their survey they appear quite reasonable (Figure 3.16a). The point selected clearly represents the maximum change in gradient within the area surveyed which runs just beyond the negotiated maritime boundary with the United States. Given the great expense and difficulty in collecting data in the Arctic, it is not at all unreasonable that the Russians would end their surveys near the negotiated maritime boundary. Likewise, the United States has concentrated its survey work on its side of the negotiated boundary line. Within the context of the US survey work, there is also a clear point of maximum change in gradient (Figures 3.15 and 3.16b). If, however, we construct a line that connects to two surveys (based on IBCAO data on the Russian side of the negotiated maritime boundary line and newly collected Healy data on the US side of the negotiated maritime boundary line) 19  S. Alekseyev, I. Glumov, S. Kursin, A. Kostenich, K. Stavrov, A. Zen’kov, Arctic Bathymetric Surveys for the Purpose of Seafloor Mapping to Determine the Outer Limits of the Russian Federation Continental Shelf, VSEGEI, St. Petersburg, May 2013.

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a.

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b.

c. FIGURE 3.16

a. Potential Russian foot of slope points. b. Potential US foot of slope points based on Healy multi-beam sonar surveys. c. Line connecting Russian potential foot of slope points with potential US foot of slope points.

we see that the foot of the slope points actually lie on a continuous morphologic feature that is clearly distinct from the abyssal depths of the Canada Basin (Figure 3.16c). Thus the Russians have offered a reasonable location for the foot of the slope within the context of their survey work and the Americans offer the same within the context of their survey work—yet this implies that there is more than one “foot of the slope” along a continuous line going seaward on what appears morphologically to be a continuous margin. Is this feasible? Paragraph 4(b) of Article 76 defines the foot of the slope as follows: (b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base.

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The “point of maximum change in gradient” implies a single point and, considered from a morphological perspective, it makes sense that there should be only one “foot of the slope” on any continuous line segment that runs seaward along the natural prolongation of the land territory. Additionally if we look at the CLCS’s guidelines they offer the following description for the location of the “base” of the slope, the region in which the foot of the slope is located: CLCS Guidelines 5.4.4: For the purposes of identifying the region defined as the base, the Commission defines the continental slope as the outer portion of the continental margin that extends from the shelf edge to the upper part of the rise or to the deep ocean floor where a rise is not developed. The rise, in turn is the wedge-shaped sedimentary body, having a smaller gradient than the continental slope. This same description of the slope as the outer portion of the continental margin that extends from the shelf edge to the upper part of the rise or to the deep ocean floor where a rise is not developed is repeated again in the CLCS guidelines paragraphs 5.4.5 and 6.2.2. The CLCS thus defines the base of the slope as the point where a line moving seaward from the shelf edge first encounters the continental rise where a rise is developed or the deep sea where no continental rise is developed (as is the case for the Chukchi region). In the latter case, the base of the slope is the dividing line between the continental margin and the deep sea. If a foot of the slope point represents the boundary between the continental margin and the deep sea, how then can there be more than one point representing this division on a single line running seaward from the shelf to the deep sea? An answer may lie in accepting the fundamental definition of the juridical continental shelf as a geopolitical construct rather than a physical entity. Paragraph 1 of article 76 of UNCLOS defines the continental shelf of a coastal State: (1) The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

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The key word here is “its” referring to the extension beyond the territorial sea and land territory of the coastal State. The implication is that the continental shelf starts at the land territory of the coastal State and moves seaward from there. If we can, by association, assume that the features that define the limits of the continental shelf (i.e., the foot of the slope and other points and lines described in paragraphs 4 and 5 of Article 76) are also derived from the extension of the land territory of the coastal state, then the foot of the slope may be looked at strictly within the context of extension from the coastal State with no need to consider the broader morphological context beyond the boundaries of the State. This could allow inconsistencies in the location of the base of the slope when moving across the maritime boundaries of neighboring coastal States as long as each coastal State presented an internally supportable argument. However, it still leaves concerns about consistency in the definition of the base of the slope and the location of foot of the slope points within this base. These are questions the CLCS and the broader international community may have to come to terms with in the future.

CHAPTER 4

The Law and Politics of the Lomonosov Ridge Michael Byers* Abstract Much of the Arctic Ocean lies beyond the 200 nautical mile Exclusive Economic Zones of its five coastal States: Canada, Norway, Russia, the United States, and Denmark via Greenland. According to Article 76 of the UN Convention on the Law of the Sea (UNCLOS), coastal States may assert rights over seabed resources located beyond 200 nautical miles if and where they are able to scientifically demonstrate the existence of an ‘extended continental shelf’ using geological and geomorphological data. This article explains how the delimitation of extended continental shelves is complicated in the Arctic Ocean by ‘submarine ridges’ and ‘submarine elevations’. It focuses on the Lomonosov Ridge, a prominent structure that runs northwards from Greenland and Canada’s Ellesmere Island, passes near the North Pole, and continues towards Russia. In 2001, Russia filed an initial submission with the Commission on the Limits of the Continental Shelf (CLCS), a body of scientists established under the 1982 UN Convention on the Law of the Sea (UNCLOS) that evaluates submissions and issues recommendations. Although Russia asserted that the Lomonosov Ridge is part of its extended continental shelf, it limited itself to the portion of the ridge on the Russian side of the 168°58′37″W meridian. In 2013, Canada filed a submission with the CLCS, but decided to withhold the Arctic Ocean portion until more data could be collected— with a view to asserting rights over the seabed at the North Pole. Denmark’s submission is anticipated in 2014. Neither Norway nor the United States appears to have any possible rights on the Lomonosov Ridge. CLCS recommendations are without prejudice to the future delimitation of maritime boundaries. At the same time, the Commission’s rules of procedure prevent it from considering parts of submissions that overlap unless all the disputants have consented. Russia, Denmark and Canada would therefore be wise to coordinate and perhaps limit their submissions, at least temporarily. Alternatively, the three countries could consent to the CLCS considering data from areas where submissions overlap. * Professor & Canada Research Chair, University of British Columbia. This article draws on Michael Byers, International Law and the Arctic (Cambridge: Cambridge University Press, 2013).

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The resulting r­ecommendations could then provide useful information about the outer limits of national jurisdiction for when boundaries are negotiated. Boundary negotiations between Russia, Denmark and/or Canada will be necessary if (1) the submissions overlap and (2) the CLCS determines the Lomonosov Ridge is part of both the Russian and Greenland/Ellesmere Island continental margins. At some point, Denmark and Canada will also have to negotiate a boundary separating their adjoining rights along the Lomonosov Ridge, outwards from the coasts of Greenland and Ellesmere Island. Within 200 nautical miles of shore, the two countries have already used an ‘equidistance line’, every point of which is an equal distance from the nearest points on their respective, adjacent coastlines. By sheer coincidence of political and physical geography, extending that line beyond 200 nautical miles would take it almost exactly down the middle of the Lomonosov Ridge, providing a neat solution for both countries.

1 Introduction “The Arctic is Russian,” announced Artur Chilingarov after planting a titanium flag on the seabed at the North Pole in 2007. Although the words were widely reported as a statement of expansionist intent, observers of Russian politics knew better: Chilingarov was a member of the Russian Duma seeking re-election, and the flag planting lacked any legal relevance. In 2008, the Arctic Ocean coastal States (Canada, Norway, Russia, the United States, and Denmark, via Greenland), committed themselves to existing international law and the resolution of disputes through negotiation. They stated in the Ilulissat Declaration: “We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims.”1 2

The Ocean Legal Regime

Unlike the Antarctic, the Arctic is an ocean surrounded by continents. The applicable legal framework was established in UNCLOS,2 which has been ratified by four of the five Arctic Ocean coastal States and, although not yet ratified 1  Representatives of Canada, Denmark, Finland, Norway, the Russian Federation, the United States of America, “Ilulissat Declaration,” Arctic Ocean Conference, Ilulissat, Greenland (2008), . 2  United Nations Convention on the Law of the Sea, 1833 UNTS 397 (1982), .

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by the United States, has been accepted by it as binding customary international law in most respects. Coastal State rights over resources normally extend 200 nautical miles from shore. If and where a state can scientifically demonstrate the existence of an ‘extended continental shelf’, it may assert control farther, but for seabed resources only.3 As Article 76 of UNCLOS provides, the continental shelf of a coastal State extends “beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin. . . .” The margin includes the continental shelf, the slope and the rise. While the scientific and legal definitions of the continental shelf are not identical,4 a state’s extended juridical limits depend solely on the seabed’s geological and geomorphological characteristics. Any party to UNCLOS wishing to delineate its extended continental shelf is expected to submit data to the Commission on the Limits of the Continental Shelf (CLCS),5 a body of scientists established under the Convention. Once the CLCS issues recommendations, outer limits established on the basis of those recommendations become final and binding. Article 76 enables states to delineate the limits of their legal continental shelf: either at 60 nautical miles from the foot of the slope, defined as the point of maximum change in gradient at its base, or where the thickness of sediments is no more than one per cent of the distance back to the foot of the slope.6 The limits must be marked by lines no longer than 60 nautical miles, connecting fixed points, and a state may use either approach—generally the most advantageous to it—at any given point. However, these limits may not reach beyond the farthest of two ‘constraint lines’: either 100 nautical miles from the 2,500 metre ‘isobath’ (i.e. underwater depth contour line), or 350 nautical miles from the territorial sea ‘baselines’ (i.e. low water mark). Some continental margins—such as those under the Arctic Ocean—involve further complexities known as seafloor ‘highs’.

3  Ibid. 4  P.A. Symonds, H. Brekke, “The Ridge Provisions of Article 76 of the UN Convention on the Law of the Sea”, in Nordquist, Moore, Heidar (eds.), Legal and Scientific Aspects of Continental Shelf Limits, (Dordrecht: Martinus Nijhoff, 2004), p. 170. 5  UNCLOS, supra, note 2. 6  Ibid.

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Seafloor Highs

Seafloor highs, such as ridges and plateaux, have varying geological and geomorphological relationships with the continental margin, and varying origins depending on whether they formed in areas where tectonic plates converge or diverge. The geological and geomorphological characteristics and the geographical names of these features vary, too, and the question of their legal categorization is complicated. Article 76 includes three legal categories of seafloor highs. Oceanic ridges may not be reduced to national jurisdiction.7 On submarine ridges, national jurisdiction is limited to 350 nautical miles from shore. On submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs, either the 350 nautical mile or the ‘2,500 metre plus 100 nautical mile’ constraint line may be used.8 UNCLOS does not define any of these features further, or key terms such as ‘natural components of the continental margin’. The characteristics of oceanic ridges are seldom controversial: they are usually composed consistently of oceanic crust and lie beyond the geomorphological continental margin. The rules on submarine ridges and submarine elevations are the product of a compromise between states with the broadest continental margins, which wished to gain control over as much potentially resource-bearing seabed as possible, and the rest of the international community, which preferred to limit national jurisdiction and maximize the ‘Area’—also referred to as the ‘Common Heritage of Mankind’—located beyond. Both submarine ridges and submarine elevations are geomorphologically contiguous to the continental margin.9 It might be thought that all such features that are ridge-like are necessarily submarine ridges. But the definition of a ‘spur’, which UNCLOS explicitly includes within the category of submarine elevations, is essentially identical to that of a ridge.10 Moreover, in 2008, the

7  Ibid. 8  Ibid. 9  H. Brekke, P.A. Symonds, “Submarine Ridges and Elevations of Article 76 in Light of Published Summaries of Recommendations of the Commission on the Limits of the Continental Shelf”, 42 Ocean Development & International Law, No. 4 (2011), p. 290. 10  UNCLOS, supra, note 2.

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CLCS recognized several long ridge-like features as natural components of the continental margin and therefore as submarine elevations.11 This raises the relevance of crustal type and geological history. In 1999 the CLCS stated that in convergent settings “any crustal fragment or sedimentary wedge that is accreted to the continental margin should be regarded as a natural component of that continental margin” and therefore a submarine elevation. It also concluded that seafloor highs created in divergent settings through the “thinning, extension and rifting of the continental shelf” have the same status.12 In addition, these features, in order to be considered submarine elevations, must be composed of the same crustal-type as the landmass. Submarine ridges, in contrast, are partly or fully discontinuous with the continental margin in terms of crustal type. 4

Lomonosov Ridge

The Arctic Ocean has four ridge-like structures: the Gakkel, Lomonosov, Alpha, and Mendeleev Ridges. This chapter focuses on the most prominent of these features, the Lomonosov Ridge, which extends northwards from an area near Greenland and Canada’s Ellesmere Island, passes near the North Pole, and then continues towards Russia. It is roughly 900 nautical miles long, 24–108 nautical miles wide, and 400–4000 metres above the seafloor.13 Canada, Denmark and Russia are all positioned to assert rights over portions of the Lomonosov Ridge and the seabed surrounding it. In 2001, Russia filed an initial submission with the CLCS.14 When presenting the submission, its Deputy Minister for Natural Resources said the geology 11  Commission on the Limits of the Continental Shelf, Recommendations of the Commission on the Limits of the Continental Shelf in regard to the Submission made by New Zealand 19 April 2006 (2008), . 12  Commission on the Limits of the Continental Shelf, Scientific and Technical Guidelines of The Commission on the Limits of the Continental Shelf, 13 May 1999, . 13  H.R. Jackson, T. Dahl-Jensen, the LORITA working group, “Sedimentary and crustal structure from the Ellesmere Island and Greenland continental shelves onto the Lomonosov Ridge, Arctic Ocean”, 182 Geophysical Journal International, No. 1 (2010), p. 11. 14  T.L. McDorman, “The Continental Shelf Beyond 200 nm: Law and Politics in the Arctic Ocean”, 18 Journal of Transnational Law & Policy, No. 2 (2009), p. 160. For a summary of the Russian position, see: Vladimir Golitsyn, “Climate Change, Marine Science and Delineation of the Continental Shelf”, in S. Wasum-Rainer, I. Winkelmann & K. Tiroch

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FIGURE 4.1 Bathometric Chart of the Arctic Ocean. SOURCE: http://www.ngdc.noaa.gov/mgg/bathymetry/arctic/maps/ version3_0/Ver3_Map_LetterSize_round.pdf

of the Lomonosov Ridge was “characteristic of a continental-type crust.”15 But while Russia considers the Ridge to be a natural component of its continental margin, and therefore a submarine elevation potentially subject to Russian jurisdiction along the full extent, it has limited its assertion of sovereign rights to the east along the 168°58′37″W meridian which stretches from the Bering (eds.), Arctic Science, International Law and Climate Change (Heidelberg: Springer, 2012) 244–260. 15  Commission on the Limits of the Continental Shelf, Statement made by the Deputy Minister for Natural Resources of the Russian Federation during presentation of the s­ ubmission made by the Russian Federation to the Commission, 28 March 2002, .

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FIGURE 4.2 Map of the Russia Submission: Area of the continental shelf of the Russian Federation in the Arctic Ocean beyond 200-nautical-mile zone. SOURCE: http://www.un.org/depts/los/clcs_new/submissions_files/rus01/ RUS_CLCS_01_2001_LOS_2.jpg

Strait across the Lomonosov Ridge to the North Pole.16 On the other side of the pole, jurisdiction is limited to the west by the Gakkel Ridge—an oceanic ridge. The CLCS has requested more data from Russia,17 and a more detailed submission is expected shortly. Denmark plans to file its submission in 2014 and to include a portion of the Lomonsov Ridge that is on the Russian side of the North Pole but still on the Greenland side of the ‘median’ line which marks the halfway point between the Greenland/Ellesmere Island and Russian coasts.18 Denmark has not ­bothered to map the seabed beyond that median line.

16  T.L. McDorman, “The Continental Shelf Beyond 200nm”, p. 176. 17  Ibid., p. 179. 18  “Danish Continental Shelf Project” (2012), . For a summary of the Danish position and some useful maps, see: Christian Marcussen, “Extended Continental Shelf Issues in the Arctic Ocean: A Modern ‘Land Grab’ Or an Example of Cooperation between the Arctic Coastal States?” in S. Wasum-Rainer,

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Canada was planning on filing its submission in December 2013.19 Early maps produced by the Canadian government suggested that the submission would neither overlap with Russia’s 2001 submission nor reach the North Pole.20 However, the Arctic is an important component of domestic politics in Canada, and for many Canadians the North Pole is an idyllic location. Consequently, at the last moment, Canadian Prime Minister Stephen Harper insisted that government officials withhold the Arctic portion of Canada’s submission to the CLCS. He then ordered the collection of more data, followed by an eventual submission that would include the North Pole.21 However, there is just one problem: international law cannot secure this symbolic location for Canada. This is because a maritime boundary will also be required to separate Canada and Denmark’s seabed rights in the central Arctic Ocean, and the principle of equidistance is the standard method used to delimit maritime boundaries outwards from adjacent countries.22 Indeed, in 2012, Canada and Denmark agreed on an equidistance line for the first 200 nautical miles north of Ellesmere Island and Greenland, to the limits of their Exclusive Economic Zones.23 When it comes time to delimit their boundary beyond 200 nautical miles, on the extended continental shelf, an equidistance line will almost certainly be used again. And the North Pole is located on the Danish side of where the equidistance line would fall. I. Winkelmann & K. Tiroch (eds.), Arctic Science, International Law and Climate Change (Heidelberg: Springer, 2012) 110–118. 19  For a summary of the Canadian situation as it stood shortly before December 2012, see: Ted L. McDorman, “Setting the Stage: The Continental Shelf and Marine Science in the Arctic Ocean”, in S. Wasum-Rainer et al., ibid., 119–139. 20  See, e.g., Canadian Hydrographic Service, “Canada’s Continental Shelf,” reproduced at . 21  Steven Chase, “Harper orders new draft of Arctic seabed claim to include North Pole”, The Globe and Mail, 4 December 2013, . 22  Case Concerning Maritime Delimitation in the Black Sea (2009) ICJ Reports 44 at 108, para 118–122, ; Territorial and Maritime Dispute (Nicaragua v. Colombia), 19 Nov. 2012, para. 190–193, . 23  “Canada and Kingdom of Denmark Reach Tentative Agreement on Lincoln Sea Boundary”, 28 November 2012, with “Backgrounder”, .

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As for any possible overlaps between the Canadian and Russian submissions to the CLCS, or indeed between the Danish and Russian submissions, there is no reason to believe that any country will claim the entire Lomonosov Ridge. If there are overlaps between the submissions, they will likely be confined to the area between the 168°58′37″W meridian and the median line (i.e., halfway between the Greenland/Ellesmere Island and Russian coasts). More important, any such overlaps would have to be resolved through negotiation or adjudication, since the CLCS is a scientific body and not a legal tribunal. Once again, the principle of equidistance would likely be used, this time to draw a median line across the ridge, an equal distance from the coasts of Ellesmere Island and Greenland on one side, and the coast of Russia on the other. Should the Commission determine that the Lomonosov Ridge is a natural prolongation of North America only, Canada and Denmark could at that point collect more data—towards the Russian side of the Arctic Ocean— and update their submissions accordingly. In other words, the seabed mapping conducted by Canada to date is sufficient for present purposes. These scientific and legal realities would have been explained to Stephen Harper before he requested a revised Canadian submission. But myth rather than fact dominates the Canadian public consciousness when it comes to the North Pole. In the circumstances, and with an election looming in October 2015, the prime minister was just postponing the need to explain why an official map—produced and published on his watch—showed Canada not claiming the North Pole. Once the election is over, the Arctic portion of Canada’s submission will almost certainly be filed, without any alterations or extensions. 5

Resolving Overlaps

CLCS recommendations are without prejudice to the future delimitation of maritime boundaries.24 At the same time, the Commission’s rules of procedure prevent it from considering parts of submissions that concern a disputed area, unless all the disputants have consented.25 Russia, Denmark and Canada would therefore be wise to coordinate and perhaps limit their submissions. In this context, one can see Russia’s 2001 submission as an implicit offer for Canada and Denmark to avoid making overlapping submissions by limiting 24  UNCLOS, supra, note 2. 25  Division for Ocean Affairs and the Law of the Sea, Rules of Procedure of the Commission (2008), .

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themselves to the boundaries of the Russian submission. It is likely that the Arctic portion of Canada’s submission accepted that offer, at least before it was withheld in December 2013. A second option would be for the three countries to make only partial submissions, excluding any potentially disputed area for the time being. This would enable them to continue with submissions on the rest of their continental shelf limits, while deferring CLCS consideration of the limits in the area of possible overlap. This, essentially, is what Canada did by withholding the Arctic portion of its submission in December 2013. A third option would be for the three countries to consent—either explicitly, or implicitly by not objecting—to the CLCS considering data from any area where submissions overlap. The resulting CLCS recommendations could then provide useful information about the outer limits of national jurisdiction for when they decide to negotiate boundaries. Negotiations will be necessary if the submissions overlap and the CLCS determines the Lomonosov Ridge is a natural component of both the Greenland/ Ellesmere Island and Russian continental margins. This outcome is certainly possible, with Russian government scientists claiming the ridge is a fragment of an ancient continent named Arctida that formed a tectonic bridge between Eurasia and North America,26 and Canadian and Danish government scientists suggesting it is a ‘double-sided continental margin’ that rifted at a time when the North American and Eurasian landmasses were indistinct.27 At some point, Denmark and Canada will also have to negotiate a boundary between their adjoining rights along the Lomonosov Ridge, outwards from the coasts of Greenland and Ellesmere Island. Within 200 nautical miles of shore, the two countries have already used an ‘equidistance line’ where every point is an equal distance from the nearest points on the respective, adjoining coastlines of the two states. By sheer coincidence of political and physical geography, extending that line beyond 200 nautical miles would take it almost exactly down the middle of the Lomonsov Ridge, providing a neat solution for both countries.

26  E.V. Verzhbitskii, L.I. Lobkovskii, M.V. Kononov, A.F. Byakov, “Age of the Alpha-Mendeleev and Lomonosov ridges (Amerasian Basin)”, 441 Doklady Earth Sciences 441, No. 1 (2011), p. 1587. 27  H.R. Jackson, et al., paper presented at the 2010 Fall Meeting of the American Geophysical Union (Abstract no. T31A-2122) .

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Non-Arctic States

To avoid friction with non-Arctic States, Arctic Ocean coastal States must not claim rights in excess of what is allowed under international law. Thanks to the science-based criteria set out in Article 76, those legal limits are determined by the geology and geomorphology of the seabed rather than military or economic power. On either side of the Lomonosov Ridge, there is likely to be an area of seabed that falls beyond the extended continental shelves of the Arctic Ocean coastal States and is therefore part of the ‘Common Heritage of Mankind’. This area will be regulated by the International Seabed Authority, which like the CLCS was established by UNCLOS. China has indicated a specific concern for the integrity of this area,28 and is already making use of the same legal regime to pursue deep seabed mining in the central Indian Ocean. China will not exploit resources within the national jurisdictions of the Arctic coastal States absent their permission, because it uses Article 76 to support its own far-reaching claims in the East China Sea. The reciprocal nature of the rules ensures that China and other non-Arctic countries will accept their application to the Arctic Ocean if the Arctic Ocean coastal States remain true to the remarkable marriage of science and international law set out in UNCLOS.

28  L. Jakobson, China prepares for an ice-free Arctic, (SIPRI Insights on Peace and Security, 2010), p. 7, .

CHAPTER 5

The Delimitation of the Continental Shelf Beyond 200 Nautical Miles in the Arctic Ocean: Recent Developments, Applicable Law and Possible Outcomes Alex G. Oude Elferink1 Abstract A large part of the Arctic Ocean is located beyond the 200-nautical-mile limit of the five coastal States: Canada, Denmark/Greenland, Norway, the Russian Federation and the United States. All of these States have a continental shelf beyond 200 nautical miles and are in the process of determining the outer limits of this continental shelf in accordance with the substantive provisions of Article 76 of the United Nations Convention on the Law of the Sea (LOSC). Available information indicates that there is an extensive overlap between these continental shelves, requiring the delimitation between neighboring States. These delimitations are governed by Article 83 of the LOSC and, in cases involving the United States, Article 6 of the Convention on the Continental Shelf. The main question in respect to this applicable law is whether it is the same for the continental shelf beyond 200 nautical miles and the continental shelf within that distance. This matter was considered by the International Tribunal for the Law of the Sea in Bangladesh/Myanmar. In its Judgment of 14 March 2012, the Tribunal concluded that there was no difference between the delimitation of the continental shelf within and beyond 200 nautical miles in this respect. It is submitted that this finding is based on a questionable legal basis. After a brief discussion of the judgment, the article turns to an analysis of the delimitation of the continental shelf beyond 200 nautical miles in the Arctic Ocean, assessing what delimitation methodology might be appropriate and what outcomes might result from this.

1  Director, Netherlands Institute for the Law of the Sea, School of Law, Utrecht University, The Netherlands and adjunct professor, K.G. Jebsen Centre for the Law of the Sea, University of Tromsø, Norway. I would like to thank Erik Molenaar for his comments on an earlier version of this article. Any errors or omissions remain the sole responsibility of the author.

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1 Introduction A large part of the Arctic Ocean is located beyond the 200-nautical-mile limit of the five coastal States: Canada, Denmark/Greenland, Norway, the Russian Federation and the United States. However, all of the Arctic Ocean coastal States have a continental shelf beyond 200 nautical miles and are engaged in determining the outer limits of this continental shelf in accordance with the substantive provisions of Article 76 of the United Nations Convention on the Law of the Sea (LOSC).2 Available information indicates that there is an ­extensive overlap between these continental shelves, requiring their delimitation between neighboring States. These delimitations are governed by Article 83 of the LOSC and, in cases involving the United States, Article 6 of the Convention on the Continental Shelf.3 The main question in respect of this applicable law is whether it is the same for the continental shelf beyond 200 nautical miles and the continental shelf within that distance. In the latter instance the case law has held that the starting point for the delimitation in principle has to be an equidistance line. The justification for this approach is the linkage between this method and the basis of entitlement to the 200-­nautical-mile zone: both are based on distance from the coast. On the other hand, entitlement to the continental shelf beyond 200 nautical miles is not based on distance from the coast. This raises the question whether the equidistance method should have the same role in the delimitation of this part of the continental shelf. This paper will first consider the extent of the continental shelf beyond 200 nautical miles in the Arctic Ocean, focusing on the process of defining the shelf’s outer limits. Determination of these outer limits allows assessing to what extent the continental shelves of neighboring States overlap and what questions might exist in relation to the delimitation of those overlapping entitlements. The next section briefly considers the judgment of the International Tribunal for the Law of the Sea (ITLOS) in Bangladesh/Myanmar.4 In its judgment of 14 March 2012, the Tribunal concluded that there was no difference between the methodology for the delimitation of the continental shelf within and beyond 200 nautical miles. It is submitted that this finding is based on

2  Adopted on 10 December 1982; 1833 UNTS p. 396. 3  Adopted on 29 April 1958; 499 UNTS 311. Until the time the United States becomes a party to the LOSC, Article 6 of the Convention on the Continental Shelf is the applicable law for the delimitation of the continental shelf between the United States and Canada. 4  Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar).

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a questionable legal basis.5 After setting out the reasons for that submission, this paper offers an alternative approach to the delimitation of the continental shelf beyond 200 nautical miles. A final section of this paper turns to an analysis of the delimitation of the continental shelf beyond 200 nautical miles in the Arctic Ocean, focusing on three pending delimitations: between Canada and Denmark/Greenland, between those two States on the one hand and the Russian Federation on the other, and between Denmark/Greenland and Norway. This part of the paper assesses what delimitation methodology might be appropriate in light of the preceding analysis and what outcomes might result. The paper ends with some brief conclusions. 2

Current Situation of the Process of Defining the Outer Limits of the Continental Shelf 6

A prerequisite for the delimitation of maritime zones between neighboring States is the determination of the extent of overlapping entitlements.7 In the case of the continental shelf beyond 200 nautical miles, for States parties to the LOSC—in the Arctic Ocean this concerns Canada, Denmark/ Greenland, Norway and the Russian Federation—this will be known after they have complied with the Convention’s Article 76. Article 76 sets out the 5  In a number of articles on the continental shelf in the Arctic Ocean that I published previously, I had actually adopted ITLOS’s approach to assess the delimitations between neighboring States (A.G. Oude Elferink “The Continental Shelf in the Polar Regions: Cold War or Black-Letter Law?” 40 Netherlands Yearbook of International Law 2009, pp. 121–181; A.G. Oude Elferink “The Outer Limits of the Continental Shelf in the Polar Regions” in E.J. Molenaar, A.G. Oude Elferink, D.R. Rothwell (eds.) The Law of the Sea and Polar Regions: Interactions between Global and Regional Regimes (Leiden: Martinus Nijhoff Publishers, 2013), pp. 61–84). 6  This section in part is based on Oude Elferink, “The Continental Shelf,” note 5. 7  However, in practice boundaries may be determined without full knowledge of the extent of the overlapping maritime zones. For instance, the arbitral award in Guinea/Guinea-Bissau provides that the maritime boundary extends to the outer limits of the maritime areas of the parties recognized by international law (Affaire de la délimitation de la frontière maritime entre la Guinée et la Guinée-Bissau, decision of 14 February 1985 (UNRIAA Vol. XIX), pp. 149–196, para. 130(3)(c)). As far as can be ascertained, the parties did not submit any information on their continental shelf beyond 200 nautical miles to the arbitral tribunal. In September 2014 both States together with Cape Verde, Gambia, Mauritania, Senegal and Sierra Leone made a joint submission to the Commission on the Limits of the Continental Shelf (CLCS) (available at ).

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s­ ubstantive ­provisions for determining the outer limits of the continental shelf and requires that for outer limits beyond 200 nautical miles the coastal State makes a submission to the CLCS. Outer limits established by the coastal State on the basis of the recommendations of the Commission shall be final and binding. Article 76 is without prejudice to the delimitation of the continental shelf between neighboring States.8 In other words, outer limits established by the coastal State on the basis of the recommendations of the CLCS determine the extent of overlapping entitlements in relation to neighboring States, but the bilateral boundaries will have to be established by agreement between those States. The United States is not a party to the LOSC, but has taken the position that it “has exercised and shall continue to exercise jurisdiction over its continental shelf in accordance with and to the full extent permitted by international law as reflected in Article 76, paragraphs (1), (2) and (3)” of the LOSC.9 The CLCS in its Rules of Procedure has made specific provision for submissions involving a dispute concerning the delimitation of the continental shelf between States with opposite or adjacent coasts or in other cases of unresolved land or maritime disputes.10 Paragraph 5 of Annex I to the Rules of Procedure provides that in the case of such disputes the Commission will only consider a submission with the prior consent of all the States that are parties to the dispute. In the case of pending bilateral delimitations, other States in general have given their consent to the consideration of the submission of a neighboring State. The coastal States of the Arctic Ocean conform to this trend. No Arctic Ocean coastal State has thus far invoked paragraph 5 of Annex I to the Rules of Procedure to block the consideration of the submission of a neighboring State.11 8  LOSC, Article 76(10). 9   See policy statement attached to Memorandum from Assistant Secretary John D. Negroponte to Deputy Legal Adviser Elizabeth Verville of 17 November 1987 (State Department File No. 0140–0428); reproduced in J.A. Roach and R.W. Smith Excessive Maritime Claims (66 U.S. Naval War College International Law Studies, 1994) p. 125. The reference to Article 76(2), which refers to paragraphs 4 to 6 of Article 76, implies that the United States accepts all the substantive provisions of Article 76 as customary international law. 10  Rules of Procedure of the Commission on the Limits of the Continental Shelf (Doc. CLCS/40/ Rev.1 of 17 April 2008), Rule 46 and Annex I. 11   The most recent example is provided by the Executive Summary of Denmark/ Greenland’s submission of December 2014 (Partial Submission of the Government of the Kingdom of Denmark together with the Government of Greenland to the Commission on the Limits of the Continental Shelf; The Northern Continental Shelf of Greenland; Executive

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The process of determining the outer limits of the continental shelf is also relevant for the delimitation of the continental shelf between neighboring States because the coastal State may express its views on what should be the boundary with neighboring States in the context of this process. For instance, in making a submission to the CLCS a State may indicate a provisional boundary with a neighboring State or terminate the outer limits of its continental shelf at a point that has a bearing on the delimitation with neighboring States.12 At present, of the five Arctic Ocean coastal States only Norway has received recommendations from the CLCS that allow determining final and binding limits. Following the issuance of the recommendations in 2009, the Norwegian Minister of Foreign Affairs declared that they “provide a basis on which Norway can establish the limits of its continental shelf in the High North”.13 The Summary (­ available at ). As Chapter 7 of the Executive Summary indicates, Denmark/Greenland has held consultations with its four Arctic neighbors concerning potential delimitations. All those States have given their prior consent. This cooperative approach to the determination of the extent of the continental shelf was also reflected in the 2008 Ilulissat Declaration adopted by the five Arctic Ocean coastal States (see further Oude Elferink, Outer Limits, note 5 at p. 67). For a statement to a similar effect by Russian foreign minister Lavrov after the Russian annexation of the Crimea and the international tensions over the eastern regions of Ukraine see Interv’iu Ministra Inostrannykh del Rossii S.V. Lavrova MIA “Rossiia Segodnia”, Moskva, 9 Dekabria 2014 Goda (available at ). 12  For an example of the former approach see the discussion of the Russian Federation’s submission to the CLCS below. An example of the latter approach is provided by the Executive Summary of Viet Nam’s submission for the North Area, which indicates that the terminus of the outer limit of the continental shelf beyond 200 nautical miles sub­ mitted to the CLCS is located on an equidistance line (Socialist Republic of Viet Nam, Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, para­ graph 8, of the United Nations Convention on the Law of the Sea; Partial submission in respect of Viet Nam’s Extended Continental Shelf; North Area (NMV-N); Executive Summary), p. 6. This concerns a point that seems to be equidistant between China’s island of Hainan and Viet Nam’s straight baselines along its mainland coast but ignores the Paracel Islands, which are in dispute between the two States. 13  Extent of Norway’s Continental Shelf in the High North Clarified (Press release 15.04.2009 No. 025/09 of the Ministry of Foreign Affairs of Norway) (available at ). The website of the Division for Oceans Affairs and the Law of the Sea does not indicate that Norway has already filed information on its outer limits in accordance with Article 76(9) of the LOSC (see Norway ).

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c­ ontinental shelf beyond 200 nautical miles of Norway in the Arctic Ocean is of limited dimensions, extending between some 10 and 40 nautical miles beyond the 200-nautical-mile limit of the Svalbard archipelago. At the time Norway’s submission was made, it was still engaged in delimitation talks with the Russian Federation. In its submission Norway identified a final outer limit point to the west of the boundary claims of both States and indicated that this outer limit point would subsequently be linked to a fixed point on the Russian side of the boundary.14 In 2010 Norway and the Russian Federation concluded a delimitation agreement.15 The boundary is a ­compromise between the positions of the two States. The approach of Norway’s submission in relation to Denmark/Greenland was different. In this case, the outer limit extended up to the 200-nautical-mile limit of Greenland.16 The December 2014 submission of Denmark/Greenland indicates that the continental shelf of both States in this area does overlap.17 In 2001, the Russian Federation was the first State to make a submission to the CLCS. In the Arctic Ocean, the submission in part used the sector lines as set out in the Russian Federation’s national legislation to define the outer limits of its continental shelf beyond 200 nautical miles.18 The executive summary of the Russian Federation’s submission identifies the sector lines as a “provisional line of delimitation of the continental shelf of the Russian Federation with neighboring States; subject to more precise definition in the course of negotiations”.19 14  Continental Shelf Submission of Norway in respect of areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea; Executive Summary (available at ), section 7.2.1. 15  Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean of 15 September 2010 (English translation available at ). 16  This difference may be explained by the fact that in 2006 it may not have been clear that the Greenlandic shelf extended beyond 200 nautical miles in this area (see further below). 17  For a further discussion of that submission see below. 18  Sector lines are meridians running from the land/territorial sea boundaries of the Russian Federation to the North Pole resulting in a wedge-shaped area that is also referred to as a sector. 19  This is the description in Russian in the legend and Map 2 annexed to the executive summary of the submission (translation by the author). The unofficial English translation of the executive summary refers to these lines as “the boundary to be agreed upon with neighboring states” (Executive Summary, p. 1). The executive summary and the map are available at .

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The CLCS did not endorse the outer limits submitted by the Russian Federation. In 2002, the Commission recommended that the Russian Federation make a revised submission for the Arctic Ocean based on the findings contained in the recommendations.20 It seems likely that the Commission took issue with the role of the Mendeleyev and Lomonosov Ridges in establishing the outer limits of the continental shelf of the Russian Federation. The submitted outer limits along the two ridges extended beyond 350 nautical miles. In other words, the Russian Federation considered that they were not submarine ridges in the sense of Article 76(6) of the LOSC, to which the constraint of 350 nautical miles applies. The Commission may have concluded either that the submission confirmed that the Mendeleyev and Lomonosov Ridges are submarine ridges in the sense of Article 76(6), that the two ridges did not form a natural prolongation of the land territory of the Russian Federation, or that it had not been provided with sufficient information to reach any firm conclusions.21 If the outer limits of the Russian Federation’s continental shelf along the Mendeleyev and Lomonosov Ridges would be subject to the 350-nautical-mile constraint, they would fall well short of the outer limits contained in the Russian Federation’s 2001 submission, which coincided with the limits of its Arctic sector. The largest distance between the sector lines and the 350-­nautical-mile constraint is more than 200 nautical miles.22 Since receiving recommendations of the CLCS, the Russian Federation has been engaged in preparing a revised submission in relation to the Arctic Ocean and in this connection has gathered additional data in the area of the Mendeleyev and Lomonosov Ridges. The reported date of a renewed submission of the Russian Federation did not materialize a number of times.23 Recently, the Russian m ­ inister of 20  See Oceans and Law of the Sea—Report of the Secretary-General; Addendum (Doc. A/57/57/Add.1 of 8 October 2002), para. 41. 21  These views have been expressed in commentaries on the Russian Federation’s submission and the subsequent recommendations of the CLCS (see Oude Elferink, The Continental Shelf, note 5 at pp. 151–152). According to Kolodkin, the Commission in its recommendations pointed to the uncertainties in relation to the geological nature of the ridges. A.L. Kolodkin “Kontinental’nyi Shel’f Rossii v Arktike: Perspektivy Rasshireniia”, Morskoe Pravo 2007, issue 4 (available at www.sea-law.ru/index.php?option=com_ content&task=view&id=113&Itemid=76). 22  For a depiction of the two lines, see the map Maritime Jurisdiction and Boundaries in the Arctic Region (available at ). 23  For instance, in 2012 it was reported that a submission would be made by 2014 (Obnavlennaia Zaiavka Rossii v Komissiiu OON po Granitsam Kontinental’nogo Shel’fa v Arktike”; available at ; and N.P. Laverov

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­ atural resources and ecology indicated that a submission would be made by n the spring of 2015.24 Reports on the preparation of the Russian Federation’s revised submission for the Arctic Ocean indicate that the additional work that has been done substantiates that the Mendeleyev and Lomonosov Ridges are not caught by the submarine ridges provision of Article 76(6) of the LOSC and that the outer limits of the continental shelf consequently can extend beyond the 350-nauticalmile constraint.25 Although those involved in the Russian Federation’s Arctic submission in general express their confidence in the Russian case, there recently have been some indications suggesting that the Commission in the end may not endorse the Russian views. In an interview with Valerii Kaminskii and Viktor Poselov of the Gramberg Institute, which has been involved in the preparation of the Russian submission, the latter hinted at the possibility that the Commission might conclude that the Lomonosov and Mendeleyev Ridges are not a part of the natural prolongation of the land territory of the Russian Federation.26 As was noted above, the Russian Federation in its 2001 submission used sector lines to define the extent of its continental shelf. The Russian government has been criticized in academic circles for failing to claim the entire seabed et al. “Bazovaia Model’ Tektonicheskogo Razvitiia Arktiki kak Osnova dlia Podgotovki Obnovlennoi Zaiavki Rossii v Komissiiu OON na Ustanovlenie Vneshnei Granitsy Kontinental’nogo Shel’fa”, Arktika 2012 No. 2 (6), pp. 4–19, at p. 4). 24  TASS Minprirody: RF Podast Zaiavku v OON na Rasshirenie Granits Arkticheskogo Shel’fa Vesnoi 2015 (available at ); see also Interv’iu, note 11. 25  See e.g. RIA Novosti MID: Dorabotannaia Zaiavka po Granitsam Shel’fa RF v Arktike Pochti Gotova (available at ); Interv’iu, note 11. 26  M. Golubkova “Zaiavku RF na Arkticheskii Shel’f Podgotoviat k Kontsu Goda” Rossiiskaia Gazeta (dated 30.6.2014; available at ). The 2013 Strategy for the Development of the Arctic Zone of the Russian Federation and the Guaranteeing of National Security for the Period until 2020 establishes that one of its goals for the period up to 2015 is guaranteeing “the international legal realization of the outer limits of the continental shelf of the Russian Federation in the Arctic Ocean, the inadmissibility of spatial loss and worse legal conditions for activities of the Russian Federation in comparison to other Arctic Ocean coastal States” (Strategiia Razvitiia Arkticheskoi Zony Rossiiskoi Federatsii i Obespecheniia Natsional’noi Bezopasnosti na Period do 2020 Goda, point V.29.g (translation by the author; available at http:// government.ru/news/432/)). The rather opaque reference to no worse legal conditions than other Arctic Ocean coastal States in connection with the determination of the outer limits of the continental shelf might mean that the Russian Federation cannot accept that Canada and Denmark/Greenland would be able to extend their continental shelf along the Lomonosov and Mendeleyev Ridges while the Russian Federation itself could not.

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within the Russian Arctic sector, and instead applied the criteria of Article 76 of the LOSC while relying on the procedure involving the CLCS.27 That the Russian Federation’s commitment to the LOSC is unwavering was recently confirmed by a statement of President Putin to the Security Council of the Russian Federation. While noting that the Russian Federation should fight for every part of its continental shelf in the Arctic, Putin recalled that it had successfully finalized its revised submission for the Sea of Okhotsk, receiving recommendations from the CLCS which were in agreement with the arguments of the Russian Federation.28 President Putin was quoted as saying that the Russian experts should act in exactly the same way in the Arctic.29 It seems likely that the Russian Federation will adhere to sector lines in preparing a revised submission to the Commission in view of its long-time commitment to this approach.30 However, the recent submission of Denmark/ Greenland, which defines outer limits along the Lomonosov Ridge up to the 200-nautical-mile limit of the Russian Federation, raises the question whether the Russian Federation could take a similar approach.31 In the latter case the Russian Federation may still advance sector lines in case there will be overlapping continental shelf entitlements between itself and Canada and Denmark/ Greenland. Interestingly, in the interview with Kaminskii and Poselov in the Rossiiskaia Gazeta referred to above, the former, in answering a question to whom the geographical North Pole would belong if the whole area would be delimited, indicated that Denmark had a certain basis—the geographical North Pole is well within the equidistance area of Greenland—but that if the sector principle 27  See A.G. Oude Elferink “Does Recent Practice of the Russian Federation Point to an Arctic Sunset for the Sector Principle?” in S. Lalonde and T.L. McDorman (eds.) International Law and Politics of the Arctic Ocean; Essays in Honor of Donat Pharand (Leiden: Brill Nijhoff, 2015) pp. 269–290 at pp. 278–280. 28  The submission in relation to the Sea of Okhotsk originally had been made together with the submission for the Arctic in 2001. The revised submission for the Sea of Okhotsk was made in February 2013 and the Commission issued its recommendations in March 2014. 29  Ria Novosti Putin Potreboval Otstaivat’ Kazhdyi Uchastok Shel’fa v Artike (dated 22.04.2014; available at ); ITAR-TASS News Agency Putin Expects Experts to Actively Defend Russia’s Right to Arctic Shelf (dated 22.04.2014; available at ). 30  See further Oude Elferink, note 27. 31  See also Kommentarii Departamenta Informatsii i Pechati MID Rossii v sviazi s Podachei Daniei Zaiavki na Kontinental’nyi Shel’f v Arktike (available at ).

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would apply it would belong to the Russian Federation.32 However, Kaminskii then downplayed the significance of the geographical North Pole by noting that it has no economic interest whatsoever as there are neither fish nor minerals.33 Canada submitted preliminary information on the outer limits of its continental shelf in the Arctic Ocean on 6 December 2013.34 The preliminary information among others notes that the continental margin of Canada in the Arctic Ocean comprises the Lomonosov and Alpha Ridges and extends beyond the 350-nautical-mile constraint. The latter point signals that Canada considers that the two ridges are not submarine ridges in the sense of Article 76(6) of the LOSC, to which this constraint is applicable. The Canadian view implies that its continental shelf not only overlaps with that of Denmark/Greenland, but also with that of the Russian Federation. According to an article in the Canadian daily Globe and Mail, it was originally envisaged that Canada would make a submission to the CLCS on its Arctic shelf at the end of 2013. Because of a last moment intervention by Prime Minister Harper, preliminary information was submitted instead.35 A couple of days after the lodging of the preliminary information, the Canadian Minister of Foreign Affairs explained: 32  Golubkova, note 26. 33  Ibid. Kaminskii also made reference to a Canadian proposal to the Russian Federation to delimit their boundary in part by a median line and in part by a sector line—“obviously to its advantage” (ibid.; translation by the author). The equidistance line between Canada and the Russian Federation as a matter of fact straddles the Russian Federation’s sector line, which indicates that such a proposal in principle would be possible. This author has not come across any other information corroborating the existence of this Canadian proposal. 34  Preliminary Information concerning the Outer Limits of the Continental Shelf of Canada in the Arctic Ocean (available at ). The possibility to submit preliminary information is not envisaged under the LOSC, but has been created by a decision of the Convention’s Meeting of the States Parties (Decision regarding the Workload of the Commission on the Limits of the Continental Shelf and the Ability of States, particularly Developing States, to Fulfil the Requirements of Article 4 of Annex II to the United Nations Convention on the Law of the Sea, as well as the Decision Contained in SPLOS/72, Paragraph (a) (Doc. SPLOS/183 of 20 June 2008). Preliminary information is not considered by the CLCS before a full submission is made, but results in complying with the 10-year time limit for making a submission contained in Article 4 of Annex II to the LOSC. 35  S. Chase “Harper Orders New Draft of Arctic Seabed Claim to Include North Pole” The Globe and Mail (dated 4 December 2013; available at ).

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We have asked our officials and scientists to do additional and necessary work to ensure that a submission for the full extent of the continental shelf in the Arctic includes Canada’s claim to the North Pole[.] [. . .] What we want to do is claim the biggest geographic area possible for Canada.36 Comments on Canada’s bid to the North Pole have focused on why Canada would be seeking to enlarge its claim—domestic politics being identified as the main explanatory factor.37 What seems to have gone largely unnoticed is the fact that the project team working on Canada’s Arctic submission in fact had not sought to include the geographical North Pole in the submission. This implies that the outer limit lines in this area were not formed by sector lines. Reports on the reconsideration of Canada’s submission do not specify what lines had been proposed. One possibility would have been the use of equidistance lines. Those lines would give Canada a substantially larger area than covered by Canada’s Arctic sector, but as opposed to the latter, equidistance lines place the geographical North Pole beyond Canada’s continental shelf.38 A Canadian position that its continental shelf has to extend to the geographical North Pole could lead to conflict with Denmark/Greenland. If the equidistance method were to be applied to determine their bilateral ­boundary—Denmark/Greenland has used the equidistance line in the past in connection with the preparation of its submission to the CLCS for the Arctic Ocean—the geographical North Pole would be located on Greenland’s side of

36  S. Chase “Arctic Claim Will Include North Pole, Baird Pledges as Canada Delays Full Seabed Bid” The Globe and Mail (dated 9 December 2013; available at ). 37  See, e.g., “Canada to Claim North Pole as its Own” The Guardian (dated 10 December 2013; available at ); “Russia to Boost Military Presence in Arctic as Canada Plots North Pole Claim” The Guardian (dated 10 December 2013; available at ); H. Exner-Pirot, “Stephen Harper and the North Pole: Still Embarrassing Canadians in Arctic Policy” Alaska Dispatch News (dated 13 December 2013; available at ). 38  A preliminary study of Canada’s continental shelf indicates that at least at that time equidistance lines were being used to limit Canada’s continental shelf beyond 200 nautical miles in relation to Denmark/Greenland and the Russian Federation (see R. Macnab (ed.) Canada and Article 76 of the Law of the Sea; Defining the Limits of Canadian Resource Jurisdiction beyond 200 Nautical Miles in the Atlantic and Arctic Oceans (Dartmouth: Geological Survey of Canada; Open File 3209; 15 May 1994), p. 13).

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the boundary.39 A Canadian submission applying sector lines up to the North Pole would be in agreement with a revised Russian submission that is likely to employ sector lines to define the outer limits of the continental shelf and would imply that Canada might be pitched against Denmark/Greenland and siding with the Russian Federation on the issue of bilateral delimitation of the continental shelf. Denmark/Greenland made a submission in relation the continental shelf in the Arctic Ocean in December 2014.40 The Danish continental shelf project has had to face the same issue in relation to the Arctic Ocean as Canada and the Russian Federation. As information from the project pages indicates, the challenge for Denmark/Greenland was twofold: Provided that it can be proven [. . .] that the Lomonosov Ridge is a natural prolongation of the Greenland landmass, and that it constitutes a submarine elevation it will be possible to extend the Greenland continental shelf beyond the North Pole since the 2500 meter depth contour runs along the Lomonosov Ridge.41 Denmark/Greenland’s 2014 submission indicates that both challenges have been met. The outer limits contained in the submission are located on both sides of the Lomonosov Ridge and extend up to the 200-nautical-mile limit of the Russian Federation across the Arctic Ocean. That approach is markedly different from the one that was previously mentioned in information on the Danish continental shelf project, which indicated that equidistance lines had been used to define the extent of the area to be covered by Denmark/ Greenland’s submission in the Arctic Ocean.42 To the contrary, the submission does not implicitly endorse any view on the potential boundaries with

39  See further below. 40  Partial Submission, note 11. 41  The Continental Shelf Project; The Area North of Greenland (on the file with the author; previously available at ). The information on this page has been updated after the submission of Denmark/Greenland in December 2014 and no longer contains this information. 42  See ibid.; C. Marcussen Mapping of the Arctic (available at ), slide 29. The latter presentation was made in March 2014 (see e.g. Conference Report: Sustainable Arctic Shipping and Marine Operations (available at ). Marcussen’s presentation might seem to suggest that the change in approach was very recent.

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neighboring States.43 The four termini of the two outer limit lines included in it are located on the 200-nautical-mile limits of the Russian Federation (two termini), Canada (one) and Norway (one). Another interesting feature of the Danish/Greenlandic submission is that it indicates that the Gakkel Ridge is considered to be a part of the natural prolongation of Greenland. Prior to the lodging of the submission, there was no indication in the public domain that this was considered to be the case. The information on the webpages of the Danish continental shelf project ­discussed above indicated that the Gakkel Ridge was not considered to constitute a part of the natural prolongation of Greenland. The submission refers to the Gakkel Ridge as an active seafloor spreading ridge.44 On the Gakkel Ridge the 350-nautical-mile constraint has been applied to determine the outer limit of the continental shelf, although the constraint of 100 nautical miles beyond the 2500 meter depth line is seaward of it. In other words, the submission classifies the Gakkel Ridge as a submarine ridge in accordance with Article 76(6) of the LOSC.45 The change in the Danish/Greenlandic approach may have been caused either by new information on the nature of the Gakkel Ridge and/or its relation to the Greenlandic shelf or because Denmark/Greenland considers that practice in the implementation of Article 76 allowed such a change. Neither the Russian Federation nor Norway had treated the Gakkel Ridge as a part of the natural prolongation of their land territory in their ­submissions.46 It will be interesting to see whether Denmark/Greenland’s approach to the Gakkel Ridge will be followed by either Norway or the Russian Federation.47 43  However, the submission’s approach to the Alpha Ridge could be said to implicitly endorse a view on the delimitation of the continental shelf between Canada and Greenland (see further below). 44  Partial Submission, note 11 at p. 14. 45  Scientifically, the Gakkel Ridge is classified as a mid-oceanic ridge (see e.g. Alfred Wegener Institute AMORE—Arctic Mid Ocean Ridge Expedition to Gakkel Ridge (available at ). 46  The information on the Russian Federation’s submission did not include any reference to the Gakkel Ridge. The executive summary of Norway’s submission refers to the Gakkel Ridge as an “active oceanic spreading ridge” (Continental Shelf Submission, note 14 at p. 14, para. 7.2). This explicit reference to the Gakkel Ridge as an oceanic ridge might suggest that Norway considered that the ridge fell under the second sentence of Article 76(3) of the LOSC, which provides that the continental shelf “does not include the deep ocean floor with its oceanic ridges”. 47  Norway has received recommendations of the CLCS that would allow it to establish final and binding limits. However, Norway thus far does not seem to have done so and could still make a new or revised submission to the CLCS (see further text at note 13).

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In this connection it may be noted that the Gakkel Ridge may be linked similarly to Greenland and the Norwegian territory of Svalbard, while the morphology in the case of the Russian Federation seems to be very different.48 The Danish/Greenlandic submission does not use the Alpha Ridge to determine the outer limits of the continental shelf to the north of Greenland. However the submission indicates: The Alpha-Mendeleev ridge complex and the Chukchi Borderland are morphologically continuous with the land mass of Greenland. However, the submitted data and other material in this Partial Submission do not provide for their classification as submarine elevations that are natural components of the Northern Continental Margin of Greenland.49 The wording “submarine elevations that are natural components” is also contained in Article 76(6) of the LOSC, which provides that, notwithstanding the provision on submarine ridges, on such submarine elevations the constraint of 100 nautical miles beyond the 2500 meter depth line may be used. The Danish/Greenlandic submission does not explain why the AlphaMendeleev ridge complex and the Chukchi Borderland have not been used in connection with the definition of the outer limits of the continental shelf to the north of Greenland. For one thing, this would have required the gathering of data for a very extensive additional area. In addition, it would seem to be unlikely that any part of this area would be located on the Danish side of continental shelf boundaries with its Arctic neighbors, making this effort to a large extent superfluous.50 The language contained in the submission indicates that Denmark/Greenland considers that its natural prolongation extends beyond 48  Recent reporting on the Russian Federation’s pending submission does not contain any reference to the Gakkel Ridge (for references see above). 49  Partial Submission, note 11 at p. 14. For the executive summary’s description of the Alpha-Mendeleev ridge complex see also the paragraph preceding the quoted paragraph (ibid., p. 14; cf. Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf (CLCS/11 of 13 May 1999), para. 7.3.1.b, which is concerned with submarine elevations). 50  It could be said that a similar reasoning might apply in the case of the Lomonosov Ridge, as a large part of this ridge in a delimitation between Canada, Denmark/Greenland and the Russian Federation—assuming that the ridge is the natural prolongation of all three States—will be attributed to the other two States. However, in this latter case the area concerned is more limited and the approach of Denmark/Greenland accomplishes that for the time being it does not have to commit itself to any specific line to limit the extent of its entitlement in relation to the other two States.

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the outer limits it has currently submitted. This leaves open the possibility of making a further partial submission in the future or, alternatively, of arguing in bilateral negotiations that this entitlement is relevant for the determination of continental shelf boundaries. The United States is not a party to the LOSC, but has taken the position that Articles 76(1) to (7) reflect customary international law.51 The United States has been carrying out research that should allow it to determine the outer limits of its continental shelf in accordance with these provisions.52 The continental shelf of the United States beyond 200 nautical miles in the Arctic Ocean comprises the Chukchi Cap and the Northwind Ridge. According to a preliminary study concerning the extent of the continental shelf of the United States, the outer limit in this area would mostly be determined by the constraint line of 100 nautical miles beyond the isobath of 2500 meters. This would imply that the continental shelf in this area might extend to approximately 600 nautical miles from the coast.53 That continental shelf overlaps with that of the Russian Federation and of Canada.54 The United States and the then Soviet Union concluded an agreement on the delimitation of their maritime boundary in 1990.55 The agreement, which is provisionally applied, has not yet entered into force because the Parliament of the Russian Federation has not yet approved its ratification. The agreement delimits the entire continental shelf.56 In the Arctic Ocean, the boundary is a meridian that was first employed in the 1867 Convention concerning the 51  See above text at note 9. 52  See, e.g., Extended Continental Shelf Project (available at ). 53  See L. Mayer, M. Jakobsson and A. Armstrong The Compilation and Analysis of Data Relevant to a U.S. Claim Under United Nations Law of the Sea Article 76: A Preliminary Report (Center for Coastal and Ocean Mapping/Joint Hydrographic Center University of New Hampshire Durham, N.H. May, 2002), pp. 55–57. More recent data indicate that the continental shelf in this area is probably more extensive than was estimated in this study (see Extended Continental Shelf; Fact Sheet (State Department; Bureau of Oceans and International Environmental and Scientific Affairs; March 9, 2009)). This is probably explained by the fact that better seafloor mapping has provided more data on the 2,500 meter isobath, resulting in the identification of more seaward points of the 2,500 meter isobath. 54  The December 2014 submission of Denmark/Greenland indicates that there also could be an overlap between the continental shelf of Greenland and that of the United States (Partial Submission, note 11 at p. 18). 55  Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary of 1 June 1990 ((1990) 29 ILM 941). 56  See ibid., Article 1.

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c­ ession of Alaska between the United States and the Russian Empire to define the extent of the ceded territory.57 This meridian coincides with the sector line the Russian Federation has employed in its national legislation. The United States has not yet concluded a boundary treaty with Canada in the Arctic Ocean. Canada has taken the position that the bilateral boundary within 200 nautical miles is the meridian which constitutes the land boundary between Canada and Alaska. The United States has rejected the relevance of this line and maintains that the equidistance method is an appropriate method of delimitation. Interestingly, a large part of the area beyond 200 nautical miles is seaward of both lines. 3

Delimitation of the Continental Shelf: The Applicable Law in Light of Myanmar/Bangladesh

Article 83 of the LOSC provides the applicable law for the delimitation of the continental shelf beyond 200 nautical miles between four of the five Arctic Ocean coastal States. In view of the fact that Article 83 has been equated with customary law and Article 6 of the Convention on the Continental Shelf, an assessment of the implications of Article 83 is relevant for all Arctic Ocean coastal States. To date, the implications of Article 83 of the LOSC for the delimitation of the continental shelf have been assessed in two international cases and an arbitration involving two of Canada’s provinces.58 Basically, the judges and arbitrators reached the same conclusion in all three cases, holding that there is no difference between the methodology to be applied to the delimitation within and beyond 200 nautical miles. In an article that was prepared in 2013, I discuss the reasoning the ITLOS employed to arrive at this conclusion in Bangladesh/ Myanmar.59 The findings of that article may be summarized as follows. First, 57  Adopted on 30 March 1867 (United States Statutes at Large Vol. 15, p. 539). 58  Bangladesh/Myanmar, judgment of 14 March 2012; In the Matter of the Bay of Bengal ­Maritime Boundary Arbitration, Award of 7 July 2014 (hereinafter Bangladesh v. India; available at ); Arbitration between Newfoundland and Labrador and Nova Scotia concerning portions of the limits of their offshore areas as defined in the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada-Newfoundland Atlantic Accord Implementation Act (hereinafter Newfoundland and Labrador and Nova Scotia arbitration); Award of the tribunal in the second phase of 26 March 2002 (available at ). 59  A.G. Oude Elferink “ITLOS’s Approach to the Delimitation of the Continental Shelf beyond 200 Nautical Miles in the Bangladesh/Myanmar Case: Theoretical and ­Practical

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although the Tribunal is right in finding that Article 83 does not make a distinction between the continental shelf within and beyond 200 nautical miles, that article is silent on the substantive rules and only requires that the outcome of the delimitation has to be equitable. The attainment of this result may require applying different principles and rules within and beyond 200 nautical miles. Secondly, the article argued that the ITLOS linked the basis of entitlement to the continental shelf and its preferred method of delimitation (equidistance/relevant circumstances) in a way that was completely divorced from the view expounded in the case law in relation to areas within 200 nautical miles. Moreover, it was submitted that the Tribunal failed to explain what distinguished the relationship of the equidistance/relevant circumstances method to the Tribunal’s very general definition of the basis for entitlement from the relationship of other possible methods of delimitation to that basis for entitlement. Finally, apart from these doctrinary problems attaching to the ITLOS’s reasoning, the article demonstrated that the approach may be completely unworkable in practice. An equidistance line may be located outside the area of overlapping continental shelf entitlements beyond 200 nautical miles of the States concerned. The article also considered what might be a possible alternative to the equidistance/relevant circumstances methodology adopted by the ITLOS in Bangladesh/Myanmar and concluded that a starting point in that quest might be the approach of the International Court of Justice to the delimitation of the continental shelf in the North Sea Continental Shelf Cases, which was decided in 1969.60 What makes these cases of particular interest is that two of the parties vehemently argued that there was an intimate connection between the basis for entitlement to the continental shelf and the equidistance method. In its judgment the Court refuted this contention and instead held that ­entitlement was based on natural prolongation.61 In the light of that conclusion, the Court had to determine the applicable rules of delimitation. According to the Court in the cases before it: Difficulties” R. Wolfrum, M. Seršić, T.M. Šošić (eds.), Contemporary Developments in International Law; Essays in Honour of Budislav Vukas (Leiden: Martinus Nijhoff Publishers, 2015), pp. 230–249. The reasoning in the Newfoundland and Labrador and Nova Scotia arbitration is also briefly discussed in this same article. The decision of the arbitral tribunal in Bangladesh v. India does not add any new arguments to those of the ITLOS in Bangladesh/Myanmar. 60  The present contribution further expands on the ideas that were set out in this earlier article. 61  North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), judgment of 20 February 1969 [1969] ICJ Reports, paras. 43–46.

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. . . delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other[.]62 The Court’s reference to natural prolongation might suggest that it intended that primacy should be given to geomorphology or geology to ascertain possible continental shelf boundaries. However, as a matter of fact no such primacy was given to these factors by the Court, which instead understood natural prolongation to be primarily a spatial concept defined by reference to the coastal fronts of the States concerned and their seaward projection.63 The idea that it might be possible to discern continental shelf boundaries within overlapping natural prolongations on the basis of geology or geomorphology was reflected in Bangladesh’s argument in Bangladesh/Myanmar that it had the “most ­natural prolongation”. This argument was rejected by the ITLOS. The Tribunal held that the extent of natural prolongation had to be determined on the basis of the provisions of Article 76, in particular its paragraph 4. Once it is determined that entitlements overlap on the basis of these provisions there is no basis for concluding that one of the States concerned should be given a larger share of the overlapping entitlements because it has “the most natural prolongation”.64 This finding of the Tribunal is in line with earlier jurisprudence, which has consistently rejected the relevance of geological or geomorphological arguments for the determination of continental shelf boundaries.”65 62  Ibid., para. 101(C)(1). 63  For a discussion of this point see A.G. Oude Elferink The Delimitation of the Continental Shelf between Denmark, Germany and the Netherlands; Arguing Law, Practicing Politics? (Cambridge: Cambridge University Press, 2013), pp. 330–331. The Court did indicate that it could be useful to look at the geology of the shelf “to find out whether the direction taken by certain configurational features should influence delimitation because, in certain localities, they point-up the whole notion of the appurtenance of the continental shelf to the State whose territory it does in fact prolong” (North Sea Continental Shelf Cases, judgment of 20 February 1969 [1969] ICJ Reports, para. 95). The French text of this paragraph reads in part “en précisant en certains points la notion même d’appartenance du plateau continental à 1’Etat dont il prolonge en fait le territoire”, indicating even more clearly than the English text that geology is accessory to geography. 64  Bangladesh/Myanmar, judgment of 14 March 2012, para. 460. 65  See, e.g. Continental Shelf (Tunisia/Libyan Arab Jamahiriya) judgment of 24 February 1982 [1982] ICJ Reports, para. 66; Delimitation of the Maritime Boundary in the Gulf of Maine Area, judgment of 12 October 1984 [1984] ICJ Reports, paras 45–47.

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The Court’s general delimitation rule as expressed in the North Sea Continental Shelf Cases can be translated into a number of specific steps. The first step in a delimitation should be to determine the extent of overlap of the natural prolongations of the States concerned. A second step would be determining how the overlapping natural prolongation of each of the States concerned relates to its coast. Not all of the coast of a State necessarily is relevant to the delimitation of the continental shelf beyond 200 nautical miles. This may be illustrated by two examples derived from practice. In Bangladesh v. India the arbitral tribunal held that not only the northwestern part of the Indian mainland coast was part of the relevant coast, but that this relevant coast also included the northern part of the Andaman Islands, which are located in the eastern part of the Bay of Bengal.66 The tribunal was able to reach this conclusion because India’s natural prolongation extends beyond 200 nautical miles not only from its mainland coast, but also from the Andaman Islands. These natural prolongations meet and overlap in the center of the Bay of Bengal. Had there been no separate natural prolongation extending from the Andaman Islands, the conclusion would have been different; to wit they would not have qualified as part of the relevant Indian coast for the delimitation with Bangladesh. An example of a different nature is provided by the delimitation of the continental shelf beyond 200 nautical miles between Iceland and Denmark/ Greenland in the Irminger Sea.67 Iceland’s continental shelf in the Irminger Sea extends from its southwest facing coast along the Reykjanes Ridge.68 There would seem to be little doubt that all of this coast of Iceland is part of the relevant coast in relation to this entitlement. However, if the area of overlapping entitlements is taken into account, a different picture emerges. Greenland’s continental shelf beyond 200 nautical miles extends along more than 200 nautical miles of its 200-nautical-mile limit, but only extends some tens

66  Bangladesh v. India, award of 7 July 2014, para. 304. For a depiction of India’s relevant coasts see ibid., Map 4. 67  Denmark/Greenland and Iceland have reached a provisional agreement on the delimitation of this area (Agreed Minutes on the delimitation of the continental shelf beyond 200 nautical miles between Greenland and Iceland in the Irminger Sea of 16 January 2013 (on file with the author)). 68  See The Icelandic Continental Shelf; Partial Submission to the Commission on the Limits of the Continental Shelf pursuant to article 76, paragraph 8 of the United Nations Convention on the Law of the Sea in respect of the Ægir Basin area and Reykjanes Ridge; Executive Summary of Iceland’s (available at ).

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of nautical miles beyond that limit.69 This implies that the area of overlapping entitlement is limited to this area adjacent to the 200-nautical-mile limit of Greenland. It would be difficult to maintain that for this area the entire southwest facing coast of Iceland would be relevant. At most, the relevant coast that frontally projects into the area of overlapping entitlements is located between the p ­ eninsulas of Sudurnes and Snæfellsnes. While the entire southwest-­facing coast of Iceland measured along a straight line is around 290 kilometers, the coast between the two peninsulas measured along a straight line is about 125 kilometers. The relevant coast of Greenland that is directly facing the area of overlapping entitlements measures around 545 kilometers. The ratio between that coast and Iceland’s relevant coast between the two peninsulas is 1:4.4. In the light of the case law such a difference in coastal lengths could well constitute a relevant circumstance for determining the continental shelf boundary. On the other hand, if the whole southwest-facing coast of Iceland would be taken into account the ratio of the relevant coasts would only be 1:1.9, a difference in coastal lengths that probably would not constitute a relevant circumstance.70 After the area of overlapping natural prolongations and the relevant coasts have been determined two approaches could be taken. Adherence to the rule expressed in the North Sea Continental Shelf Cases might seem to imply that as a first step all relevant circumstances should be determined. However, the ­dictum of the Court in its judgment on the appropriateness of using the median line as the starting point for dividing the natural prolongations between States

69  See Partial Submission of the Government of the Kingdom of Denmark together with the ­Government of Greenland to the Commission on the Limits of the Continental Shelf; The Southern Continental Shelf of Greenland; Executive summary (available at ). 70  The recent decisions in Bangladesh/Myanmar and Bangladesh v. India determined coastal length ratios of respectively 1:1.42 and 1:1.92, but did not find that such disparities constituted a relevant circumstance. In Black Sea the ICJ even concluded that a ratio of coastal lengths of Romania and Ukraine of approximately 1:2.8 did not constitute a relevant circumstance. However, the Court also concluded that “it cannot disregard the fact that a good portion of the Ukrainian coast which it considers as relevant projects into the same area as other segments of the Ukrainian coast, thus strengthening but not spatially expanding the Ukrainian entitlement” (Case concerning maritime delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009 [2009] ICJ Reports, para. 168). If such double counting would not be taken into account in determining the ratio of the relevant coasts, it would rather seem to be somewhere in the range of 1:1.5 to the advantage of Ukraine.

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with opposite coasts suggests that a different approach could also be entertained. As the Court observed: The continental shelf area off, and dividing, opposite States, can be claimed by each of them to be a natural prolongation of its territory. These prolongations meet and overlap, and can therefore only be delimited by means of a median line; and, ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved.71 This observation indicates that under the rule expressed in the North Sea Continental Shelf Cases it would still be possible to first assess the outcome of the application of an equidistance line. If the equidistance line were to result in a broadly equal division of the area of overlap it could be adopted as a starting point. However, if that is not the case, a different method should be chosen that achieves a similar result. Alternatively, in this latter case it could be considered to refrain from determining a provisional delimitation line, but instead to move directly to the stage of balancing all relevant circumstances. The delimitation of the continental shelf beyond 200 nautical miles between Iceland and Greenland in the Irminger Sea can be used to illustrate the approach set out above. As a first step it could be tested how an equidistance line would divide the overlapping natural prolongations. That equidistance line is located well beyond the area of overlapping natural prolongations and thus does not provide an appropriate starting point for this delimitation. An alternative delimitation method would be the drawing of a line that is equidistant between the 200-nautical-mile limit of Greenland and the outer limit of Greenland’s continental shelf beyond 200 nautical miles in the Irminger Sea. These two limits define the outer envelope of the overlapping claims and an equidistance line between these two limits would divide this area of overlapping claims in equal halves between the parties. In the light of the Court’s dictum on the median line cited above, this line could be said to form an appropriate starting point for effecting a delimitation in this specific case.72 71  North Sea Continental Shelf Cases, judgment of 20 February 1969 [1969] ICJ Reports, para. 57. 72  It should be noted that the outer limit of the continental shelf of Iceland as defined in its submission to the CLCS in the area concerned in large part coincides with the 200-nautical-mile limit of Greenland (see The Icelandic Continental Shelf, note 68 at p. 11). It would have been possible for Iceland to extend its outer limit to within 200 nautical miles

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The next stage of a delimitation would consist of an assessment of the relevant circumstances that might require a shift of the provisional equidistance line between the overlapping claims of Denmark/Greenland and Iceland in the Irminger Sea. As was mentioned above, one such relevant circumstance could be the difference in the lengths of the relevant coasts, that of Greenland being 4.4 times longer than that of Iceland. Another relevant circumstance could be the location and configuration of the area of overlapping entitlements. The area of overlapping entitlements beyond 200 nautical miles is adjacent to the Greenlandic 200-nautical-mile limit and extends for a large distance along that limit. A delimitation of this area by the provisional delimitation line results in Greenland’s continental shelf not extending to the outer limit of Greenland’s continental shelf. On the other hand, the area of overlapping entitlements could be said to be a peripheral area of the continental shelf beyond 200 nautical miles of Iceland. Even if the whole area of overlapping entitlements were to be attributed to Denmark/Greenland, Iceland’s continental shelf would still extend along a broad front to the outer limits of that shelf, which is located a couple hundred nautical miles to the south of the area of overlapping entitlements. It could be argued that this difference constitutes a relevant circumstance in the sense that a delimitation dividing the area of overlapping entitlements equally would, to paraphrase the Court’s judgment in the North Sea Continental Shelf Cases, not leave as much as possible to each party all those parts of the continental shelf that constitute a natural prolongation of its land territory, but would lead to an encroachment on the natural prolongation of Denmark/Greenland. Finally, if the provisional equidistance line would have been calculated on the basis of the baselines along the coasts, the peninsula of Sudurnes could have been argued to be a relevant circumstance. However, since the provisional delimitation line is not based on distance from the coast—and the same applies to the extent of Iceland’s continental shelf entitlement—there would not seem to be a justification for treating Sudurnes as a relevant circumstance. of Greenland (see the argument of Myanmar to the contrary as reported in Bangladesh/ Myanmar, judgment of 14 March 2012, paras 468–469. This argument was not accepted by the ITLOS, which effected a delimitation resulting in a continental shelf boundary that in part was within 200 nautical miles of Myanmar but beyond 200 nautical miles of Bangladesh (ibid., paras 471–476)). In this case, a provisional delimitation line could be an equidistance line between the outer limits of Iceland extending inside Greenland’s 200-nautical-mile zone and the outer limit of Greenland’s continental shelf beyond 200 nautical miles. Such a line could be justified on similar grounds as the provisional line that is proposed in the text.

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Pending Arctic Ocean Delimitations in Light of the Applicable Law73

At the moment there is uncertainty about the extent of the continental shelf of four of the five Arctic Ocean coastal States. That uncertainty complicates the assessment of pending delimitations. For that reason, the current analysis will focus on three delimitations, namely between the Russian Federation on the one hand and Canada and Denmark/Greenland on the other hand, between Canada and Denmark/Greenland, and between the latter and Norway. The former two delimitations will be assessed on the assumption that the Alpha, Lomonosov and Mendeleyev Ridges are part of the natural prolongation of these three States and that they are not limited by the constraint of 350 nautical miles.74 The uncertainty about the extent of the continental shelf in the Arctic Ocean likely has contributed to the absence of delimitation agreements between the Russian Federation and Canada and Denmark/Greenland.75 In the case of the delimitation of the continental shelf beyond 200 nautical miles between the Russian Federation on the one hand and Canada and Denmark/Greenland on the other, a provisional equidistance line would at first sight seem to provide an appropriate starting point.76 This delimitation 73  Apart from the currently pending delimitations, the case of the Russian Federation and the United States in the Arctic Ocean would seem to be of interest from the perspective of exploring the differences between the delimitation of the continental shelf within and beyond 200 nautical miles. The overlapping continental shelf entitlements of the two States are located in the area of the Chukchi Cap and the Northwind Ridge. An equidistance line on the side of the United States in part is determined from basepoints that could be argued to have a less direct connection to that shelf area because the line of shortest distance between these basepoints and the equidistance line first seems to cross the foot of the slope of the Barrow margin and then crosses the foot of the slope along the Chukchi Cap and the Northwind Ridge from seaward. That is, the frontal projection from these basepoints does run across the natural prolongation of the United States along the Chukchi Cap and the Northwind Ridge in its entirety. 74  As a matter of fact, if the 350-nautical-mile constraint would be applicable to these ridges, the Russian Federation would not share a continental shelf boundary with the other two States. 75  See, e.g., Kommentarii, at note 31. 76  In view of the Russian Federation’s use of sector lines as provisional limits of its continental shelf beyond 200 nautical miles in relation neighboring to States in Arctic Ocean, it seems likely that the Russian Federation would invoke the relevance of these sector lines for a delimitation in relation to Canada and Denmark/Greenland (see further Oude Elferink, note 27 at p. 290). That article concludes that sector lines as such have no relevance in a legal determination of the maritime boundaries in the Arctic (ibid.,

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is between opposite coasts implying that the natural “prolongations meet and overlap, and can therefore only be delimited by means of a median line [. . .]. [S]uch a line must effect an equal division of the particular area involved”.77 Using the equidistance method between the Russian Federation and Canada and Denmark/Greenland raises a question about the selection of the relevant basepoints.78 The equidistance line that is commonly depicted in this case is constructed using basepoints on Franz Josef Land and Severnaia Zemlia.79 As the Russian Federation’s 2001 submission to the CLCS indicates, the natural prolongation of Franz Josef Land and Severnaia Zemlia extends a limited ­distance beyond 200 nautical miles, but is separated from the Lomonosov Ridge by an area beyond the outer limits the Russian Federation submitted to the CLCS. It is submitted that this circumstance disqualifies basepoints on these territories as relevant basepoints for constructing an equidistance line in the area of the Lomonosov Ridge.80 It would imply using basepoints on the coast of the Russian Federation that are separated from the equidistance line by an area to which the Russian Federation has no entitlement.81 There obviously is no justification for using basepoints on coasts that do not contribute to generating the area of overlapping entitlements in constructing a provisional equidistance line to divide that area of overlap. It might be submitted that Franz Josef Land and Severnaia Zemlia, although separated from the Lomonosov Ridge by pp. 280–282) and submits that recent Russian scholarship defending the use of the sector lines while rejecting the relevance of the law of the sea “degenerates into pure apology that is completely divorced from legal realities” (ibid., p. 290; see also ibid., pp. 278–284). 77  North Sea Continental Shelf Cases, judgment of 20 February 1969 [1969] ICJ Reports, para. 57. 78  I would like to thank Erik Molenaar for drawing my attention to this point as far as the basepoints of the Russian Federation are concerned. 79  See, e.g., the figure Maritime jurisdiction, note 22. 80  A similar situation may exist in relation to a part of the equidistance line between Canada and the Russian Federation. The equidistance line shown on ibid. in part is determined by basepoints on Canada’s Prince Patrick’s Island. In this instance, the line of shortest distance between the relevant basepoint(s) on the island may also pass through an area that may be beyond the outer limits of Canada’s continental shelf. 81  The December 2014 submission of Denmark/Greenland includes the Gakkel Ridge as part of its natural prolongation. As was pointed out above, this raises the question whether the Russian Federation would be able to do the same. If that were to be the case, the Russian Federation would have an entitlement to this area–subject to the review of its outer limits by the CLCS. However, it is submitted that this would not alter the situation. In this case there still would not be a uninterrupted natural prolongation extending from these basepoints to the equidistance line on the Lomonosov Ridge along a straight line (see also note 73 above).

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an area that is not part of the natural prolongation of the Russian Federation, are linked to the Lomonosov Ridge because there is no discontinuity between their natural prolongation and that of the New Siberian Islands, whose frontal projection extends along the Lomonosov Ridge. However, rather than refuting the argument that basepoints on Franz Josef Land and Severnaia Zemlia should not be used for constructing a provisional equidistance line, this reasoning instead reinforces it. The distance of Franz Josef Land and Severnaia Zemlia to the Lomonosov Ridge measured by a line passing along the natural prolongation of the Russian Federation is at a greater distance from the Lomonosov Ridge than the New Siberian Islands. An equidistance line not taking into account basepoints on Franz Josef Land and Severnaia Zemlia would diverge significantly from an equidistance line giving full weight to these basepoints. Viewed from the Russian coastline the two lines start to diverge at a point that is to the north of the New Siberian Islands.82 The divergence between the two lines increases gradually, moving west, and on the basis of a rough estimate is around 150 nautical miles at the point at which these two equidistance lines intersect the outer limits of the continental shelf along the Lomonosov Ridge contained in the 2001 ­submission of the Russian Federation. The Russian Federation’s small islands of Henrietta and Jeannetta, which are a considerable distance north of the main islands of the New Siberian Islands, in a delimitation on the basis of maritime delimitation law, likely would be treated as a relevant circumstance or might be disregarded in determining a provisional equidistance line. In this regard there would not be any difference in respect to these islands in comparison to a delimitation involving 200-­nautical-mile zones. At first glance, the delimitation of the continental shelf beyond 200 nautical miles between Canada and Denmark/Greenland might seem to be straightforward. A provisional equidistance line extends north up to the median line between both countries and the Russian Federation. Consequently, it could be argued that the equidistance line leaves both countries the areas that “­constitute a natural prolongation of [their] land territory into and under the sea, without encroachment on the natural prolongation of the land territory 82  This concerns an equidistance line that gives full effect to the small islands of Henrietta and Jeannetta that are well north of the main islands of the New Siberian Islands. If these islands were to be given limited or no weight in a delimitation, the point at which an equidistance line giving no weight to Franz Josef Land and Severnaia Zemlia would start to diverge from an equidistance line giving full weight to these islands would be located further to the east.

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of the other”.83 However, if it is accepted that the Lomonosov Ridge is part of the natural prolongation of both countries, the same would apply to the Alpha Ridge.84 In that case an equidistance line could be said to cut off Denmark/ Greenland from a large part of its natural prolongation in the Arctic Ocean, while it does not have a similar effect on the natural prolongation of Canada. A full elaboration of this argument is beyond the scope of this article, but the following points may be noted. The general direction of Greenland’s coast is between northwest and north northwest and a perpendicular to this relevant coast is well to the west of the equidistance line. In the case of Canada it could be argued that a somewhat similar situation exists if only the northeastern part of Ellesmere Island is taken into consideration. However, the remainder of the northern coast of Ellesmere Island and the Sverdrup Islands also can be considered to be part of coast that is relevant for determining the general direction of Canada’s coast in relation to its natural prolongation along the Lomonosov and Alpha Ridges. A perpendicular to that general direction would be much closer to the equidistance line than the perpendicular to Denmark/ Greenland’s relevant coast, suggesting that the equidistance line would not provide an appropriate starting point for the delimitation of the continental shelf beyond 200 nautical miles. The continental shelves of Denmark/Greenland and Norway as defined in the former’s submission to the CLCS and the latter’s recommendations by the Commission overlap along a large part of the 200-nautical-mile limit of Svalbard in the Arctic Ocean. A provisional equidistance line would be located at the western edge of this area of overlap and would attribute almost all of that area to Norway. This indicates that the equidistance line is not an appropriate starting point for this delimitation. As an alternative, the method that was suggested in the discussion of the delimitation between Denmark/ Greenland and Iceland in the Irminger Sea could be considered, i.e., an equidistance line related to the outer contours of the area of overlapping entitlements beyond 200 nautical miles. That line would divide this area equally between the parties. In view of the broad equality of the relevant coasts of the parties—Svalbard’s north facing coast and Greenland northeast facing coast– there would not seem to be any circumstances that would require an adjustment of this provisional line to arrive at a final boundary.

83  North Sea Continental Shelf Cases, judgment of 20 February 1969 [1969] ICJ Reports, para. 101(C)(1). 84  See also above text at note 49.

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5 Conclusions All five of the Arctic Ocean coastal States are still in the process of defining the outer limits of their continental shelf beyond 200 nautical miles. Only Norway has currently received recommendations from the CLCS that allow it to determine final and binding outer limits, but Norway is yet to take that step. The Russian Federation can be expected to make a revised submission to the CLCS, which will not end up in the current queue of submissions, but will be immediately considered. For the other Arctic Ocean coastal States getting to the stage of receiving recommendations from the CLCS is still a long way off. Some 40 submissions are waiting in line to be taken up by a subcommission before it will be the turn for the submission of Denmark/Greenland in relation to the Arctic Ocean. Canada is yet to complete its preliminary information by making a submission to the CLCS and the United States will only be able to make a submission if it will become a party to the LOSC. There currently remains considerable uncertainty about the extent of the continental shelf beyond 200 nautical miles in the Arctic Ocean, in particular because of the complexity of the area involving the Alpha, Lomonosov and Mendeleyev Ridges. Although the three States with an interest in this area— Canada, Denmark/Greenland and the Russian Federation—are working on the assumption that these ridges are part of their natural prolongations and are not limited by the 350-nautical-mile constraint of Article 76(6) of the LOSC applicable to submarine ridges, there is bound to remain uncertainty in this respect until the CLCS has considered this matter. The review of the implementation of Article 76 by the Arctic Ocean coastal States allows drawing a couple of conclusions as regards the delimitation of the continental shelf. The Arctic five fit in with the global pattern that States in general do not object to the consideration of submissions by the CLCS in the case of pending delimitations of the continental shelf between neighboring States. Secondly, although Article 76(10) provides that the implementation of Article 76 is without prejudice to the delimitation of boundaries between neighboring States, the practice of the Arctic Ocean coastal States illustrates that the future delimitation of the shelf is factored in in preparing submissions to the CLCS. The present essay builds on an earlier article that argued that the conclusion of the ITLOS in Bangladesh/Myanmar, that the equidistance/relevant circumstances rule is equally applicable within and beyond 200 nautical miles, is theoretically unsound and may be impossible to apply in practice. An alternative to the approach of the ITLOS could be the ICJ’s rule of delimitation formulated in the North Sea Continental Shelf Cases. That approach is further

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explored in the context of the delimitation between Denmark/Greenland and Iceland in the Irminger Sea and subsequently in three pending delimitations in the Arctic Ocean between, respectively, Canada and Denmark/Greenland, these two States and the Russian Federation and Denmark/Greenland and Norway. Although it is only possible to provide an impressionistic image of these delimitations, it should be clear from these examples that the delimitation beyond 200 nautical miles is more complex than that within 200 nautical miles and that it can be concluded that one should avoid considering such delimitations exclusively through the prism of the equidistance/relevant circumstances rule developed in the context of the distance-based entitlement of the 200-nautical-mile zone.

CHAPTER 6

Probabilistic Risk Assessment: Concepts and Applications Dennis C. Bley1 Abstract Probabilistic risk assessment provides a framework for evaluating, understanding, and managing risks associated with the kinds of political and legal issues related to the environment, geomorphology of the continental shelf, the petroleum industry, fisheries, and navigation that will be discussed at this conference. This paper continues the discussion of risk analysis initiated at the Halifax conference in 2013. The current paper addresses the concepts of Probabilistic Risk Assessment (PRA), putting them in the perspective of quantified, integrated common sense, tying PRA to real-world events. Three examples of PRAs related to policies affecting the sea and possible damage to the sea environment or vessels and platforms operating in the sea are provided.

Probabilistic Risk Assessment (PRA) provides a framework for evaluating, understanding, and managing risks associated with the kinds of political and legal issues related to the environment, geomorphology of the continental shelf, petroleum industry, fisheries, and navigation that were discussed at the Bergen conference. In 2012, at the Halifax Conference “The Regulation of Continental Shelf Development: Rethinking International Standards,” Martin G. Malsch, Esq., gave a talk “Environmental Regulation and Probabilistic Risk Assessment” [Malsch 2013]. He introduced the concepts of probabilistic risk assessment and discussed some of the problems encountered when performing and using such analyses. That paper addressed four questions: what is a PRA; what p ­ roblems 1  Dennis C. Bley is President of Buttonwood Consulting, Inc., a consulting firm focused on applying Probabilistic Risk Assessment (PRA) to new industries and endeavors, and a Principal of The WreathWood Group, a joint venture supporting multidisciplinary research in human reliability. His PowerPoint is available at http://www.virginia.edu/colp/pdf/ bergen-bley.pdf

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004314252_008

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are encountered in performing PRA; how can we use a PRA; and what problems are associated when using PRA in environmental regulatory programs. He closed with: Ignorance about the risk in complex engineering or natural systems is not bliss and a properly conducted PRA will tell you things about risk you really should know. However, careful PRA planning and execution are essential. Moreover, using a PRA in a regulatory setting required good judgment based on knowledge of how a PRA is conducted and its limitations. The current paper returns to the concepts of PRA, albeit from a technical point of view. PRA is placed within the context for which it was developed— the analysis and understanding of low probability, high consequence events. Therefore, we consider how PRA structure addresses a number of real-world events and activities. 1

Why is PRA Important?

This paper presents the characteristics of a modern PRA and example applications related to the sea. We sometimes describe PRA as a language for addressing uncertainty—hence, its relevance to supporting policy and legal decisions, especially those involving technological systems. A key to the value of PRA is that it allows development of an integrated model. This can change our perspective. No longer must every safety issue be given the highest priority. We can see gradations in safety significance and assign the highest priority—the most protection—to those systems and activities presenting the greatest risk. This is important, for the old saw is true: if everything has the highest priority, nothing does. The origins of PRA begin with The Reactor Safety Study, also known as the “Rasmussen Report.” [Rasmussen 1975] That multi-year study laid new ground. The original idea was to borrow the logic modeling technique know as fault tree analysis, from the aerospace industry. In fact, a number of the analysts were fault tree practitioners from that industry. Because of the complexity of a nuclear power plant and the range of accidents that needed to be considered, the fault tree model for “Reactor Core Damage” became extraordinarily difficult to understand and explain. For example, in reviewing the model, a nuclear power plant safety expert might say, “I am particularly interested in an

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FIGURE 6.1 Illustration of fault trees for safety functions.

accident that begins with a small LOCA (e.g., a loss of coolant accident caused by the rupture of a three inch pipe) followed by failure of the high pressure injection system (designed to protect the plant against such failures).” It was difficult for the analysts to find the small LOCA event, in the enormous fault tree that covered the ceiling and walls of the meeting room, and to convince the reviewer that the accident was modeled correctly. A major breakthrough for The Reactor Safety Study and PRA in general, occurred when Norman Rasmussen and Saul Levine, principal investigators of the study, visited pioneers in the field of decision analysis. After studying the decision tree methodology, they proposed a twist that greatly clarified PRA. From nuclear power plant safety specialists and from the large fault tree already developed for the project, they gathered a set of “initiating events”, i.e., events that could challenge the plant by initiating a sequence of events, which could evolve into core damage. We start with an initiating event (e.g., LOCAs and transients) and develop an “event tree model” on critical safety functions (such as coolant injection, long term cooling, fission product removal, and containment). Failure of each of those functions is modeled by a much smaller and more easily verified fault tree (see Figure 6.1).

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FIGURE 6.2 PRA as the language of uncertainty.

The fault trees along a path through the event tree can be combined to build a model equivalent to the original, single too-large-to-verify fault tree. Not only did this recasting of the PRA improve our modeling process and make verification tractable, the process of using a scenario-oriented approach was found to yield additional benefits. A primary one is that it becomes obvious that specific equipment, barriers, policies, and actions do not have intrinsic value for every accident, hazard, or style of attack. Rather, their value is scenario-specific and, therefore, their overall importance is a function of their value in each scenario weighted by the likelihood of that scenario occurring. 2

PRA as the Language for Addressing Uncertainty in Technological Safety and Policy-Related Decision Making

PRA is more than a set of tools for analyzing large systems and calculating a risk parameter. It is a process for understanding the safety status of a facility, identifying contributions of people, specific equipment, management proc­ esses, and policy to safety problems, and evaluating potential improvements. PRA is really a language for addressing uncertainty. Our structure for all of PRA [Kaplan 1981 and Bley 1982] is shown schematically in Figure 6.2 as the set of triplets, , where Si describes a particular scenario, li is the likelihood or frequency of that scenario, and Xi is the consequence.

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PRA, then, amounts to building the complete list of triplets; i.e. the set of all Si, li, and Xi, . Identifying the full set of triplets requires the analyst to structure the scenarios in a way that is complete and is organized to facilitate the analysis. Structuring the scenarios is both an engineering art requiring experience and a nice sense of analysis, and a process drawing on the techniques of logic modeling and traditional engineering and scientific mechanistic calculations. Figure 6.3 [Magee 1997] provides a capsule view of the high-level results of a PRA, i.e., the complete list of scenarios. Here the triplet is represented as , an often used alternative nomenclature: scenario, probability, and consequence. After all the scenarios are identified, modeled, and quantified, they are arranged in a table and sorted in order of increasing consequences. If the cumulative probability is plotted against consequences, the “risk curve” shown in the figure is produced. This is a familiar form for displaying PRA results, where, for a given consequence, the plotted probability is the probability of observing that consequence or greater. At a deeper level, the PRA results can show the specific events contributing to the risk and the importance of each failure or policy to the risk. Finally, no matter how finely we partition the space of scenarios, it is important to recognize that each scenario really represents a group of similar subscenarios. All members of each group must lead to the same consequence. If not, the group should be broken into smaller subgroups until that is the case. The calculation of the frequency of each scenario must be based on considering all possible members of the group; i.e., all possible conditions that might exist under each scenario. The calculation of the consequences, the Ci, relies on traditional, mechanistic calculations from the engineering disciplines but is distinguished in that consequences from many more cases are calculated than in other approaches. For a nuclear power plant PRA, the mechanistic calculations include thermal-hydraulic calculations, electric circuit analysis, neutronic calculations, chemical process analysis, and so on. The logic modeling required to structure the scenarios traditionally draws on fault trees and event trees, but other approaches, such as digraphs and Markov models, are also used. In some cases, other tools that bridge the gap between logic and mechan­ istic calculations, such as simulation models, are especially appropriate. Under the formulation already described, we incorporate the ideas of uncertainty into our calculation of the frequency for each individual scenario group. In addressing the uncertainty of frequency, it is important to adopt a coherent and consistent approach. The Bayesian model [Winkler 2003] provides just such an approach, and under its umbrella, we address the issues of frequency and probability, elicitation of probability, collection and understanding of evidence, and calculations.

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Scenario

Probability

Consequences

Cumulative Probability

S1 S2 • • • Si • • • Sn-1 SN

p1 p2 • • • pi • • • pn-1 pN

C1 C2 • • • Ci • • • Cn-1 pN

P1=P2+p1 P2=P3+p2 • • • Pi=Pi+1+pi • • • PN-1=PN+pN-1 PN=pN

The “Risk Triplet”

• Si—a scenario • pi—the likelihood that the sequence occurs C • i—The consequences of the scenario

FIGURE 6.3 Overall PRA results.

Clarity of thought regarding the difference between what we call frequency and probability provides a philosophical framework for understanding a consistent treatment of uncertainty. The two concepts are often confused in the literature of probability, both being called probability. Let us say here that frequency is simply the result of an experiment, be it a real experiment or a gedanken experiment in which we simply count the number of times the event in question occurs out of the total number of possible trials or expired

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time. Probability, then, represents our state of knowledge about the real world frequency. In the literature, what we are calling probability has gone under various names, including subjective probability, state of knowledge probability, epistemic uncertainty, and prevision. Probability, as a measure of what is in our heads rather than a property of the physical world, is a measure of what we know and what we do not know—our complete state of knowledge. If probability is a personal state of knowledge, how then do we determine probabilities to use in PRAs? Let us consider two cases. In the first case, our state of knowledge comes directly from information that has been collected for other applications; for example, we have collected a wide range of equipment failure data from a variety of power plants around the world. From these collected data, we have existing curves showing the plant-to-plant variability of, say, the failure rate from motor-operated valves. This plant-to-plant variability curve shows the variation in frequency of failure as we move from plant to plant in a large population. When we now ask, “what is the probability of failure of motor-operated valves at a new plant?” our probability distribution for the failure rate is numerically identical to the plant-to-plant variability curve or the frequency variability curve. In other cases, no such plant-to-plant variability curve is available. Therefore, we must elicit the probability from the best experts available to our work. How one obtains the information from the experts and builds a probability distribution is the subject of a broad literature, which addresses the key issue of expert opinion [for example Budnitz 1997]. Elicitation of probability is something that is often not done or not done well. The reasons it is not done well have been documented by Hogarth [Hogarth 1975] and others, and include biases built into the human thinking process such as anchoring, overconfidence, and selective interpretation of new data. Careful techniques must be used to avoid these problems. [Bley 1992] The last two elements in determining the probability of frequency of each scenario—collecting and understanding the evidence, and calculations using Bayes’ theorem for updating probability distributions and propagating uncertainty—are now fairly well established and have been covered in other papers and reports. [Kaplan 1979 and Atwood 2003] The structured language of PRA provides a powerful model for addressing safety and uncertainty. It provides a framework for organizing a wide variety of standard mathematical and engineering models to address safety issues directly. We note that the approach is quite general and can accommodate human-induced events, those caused by severe environmental conditions

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(e.g., earthquakes, floods, tsunamis), and attack. It is fair to note that, while all of the topics raised here have been addressed in specific PRAs, they have not all become part of the general practice. Three examples of PRAs related to policy affecting the sea and possible ­damage to the sea environment or vessels and platforms operating in the sea follow. 2.1 PRA for a Nuclear/Chemical Site near the Sea The UK’s Sellafield nuclear site is, at its closest point, about 180 km from Ireland’s coastline. Because of the site’s location, its history, and the amount and type of radioactive materials there, Ireland has long been concerned about how an incident at the site might impact Ireland and the Irish Sea. Therefore, the Irish Government commissioned an assessment by a team of independent experts to determine the potential risks to Ireland associated with the Sellafield Site and the Low-Level Waste Repository, located near the site. The PRA team was provided access to all the processing facilities at the two sites and met with facility experts and operators to discuss the designs, as well as current and planned operations. High-level results of the study are presented below, along with information about how the study fostered co-operation between the ­governments and allowed diverse parties and governments to deal with thorny issues. The details of the study have not been released by the two governments, principally because of security concerns. However, a summary report is available and the results provided here are taken from that report. [Bley 2012] The analysis was organized according to the structure illustrated in Figure 6.4. A consistent PRA methodology underpinned all the analyses. Two supporting analyses informed all the system-specific analyses. As shown in Figure 6.4, three classes of systems at the site were analyzed: process systems (reprocessing systems that breakdown spent nuclear fuel into plutonium and uranium products and high level waste), stores (of product, waste and spent fuel), and support systems. Process systems contain limited amounts of hazardous materials, but introduce some risk because of the chemical processes involved). Stores contain large amounts of solid and liquid wastes, as well as product plutonium and uranium; some require constant cooling to avoid overheating and some are primarily vulnerable to outside hazards. Support systems contain no hazardous materials, but are needed to support processing equipment and provide cooling. All systems were analyzed

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Probabilistic Risk Assessment PRA Results é Site-wide Risk Calculation é External Events Analysis Aircraft Crashes Meteors and Meteorites

High Winds Nearby Facility Accidents

Terrorism, Attack, Sabotage

Fires Flooding

Pipeline Accidents and Explosions

Highway and Rail Accidents

Earthquakes é

é

é

Process Systems Analyses

Stores Analyses

Support Systems Analyses

Reprocessing Systems

Legacy Ponds and Silos

Compressed Air

Waste Concentration and Vitrification Liquid Effluent Management

Low-Level Waste Repository Plutonium and Uranium Storage Windscale Piles Intermediate-Level Waste Stores

Electric Power Service Steam Cooling Water

Supporting Analyses

Environmental Release Pathways

Human and Organizational Performance

Study Methodology

FIGURE 6.4 Structure of the Sellafield PRA study.

for ­scenarios initiated by failed equipment or operator actions. All were analyzed for damage due to the external events listed in Figure 6.4. Finally, the results were integrated to allow comparison and ranking of the most important scenarios. The PRA team in cooperation with Irish government agencies developed a catalog of impacts to the interests of Ireland that would be examined as possible consequences. They also translated the scale information from the International Nuclear Event Scale (INES) [IAEA 2009] to possible events at Sellafield. These are correlated in Table 6.1. Events that lead to Ireland Impact Scale categories 1–3 have no significant impact on Ireland or its interests and are not tracked in the PRA results. For categories 4–6, high-level details of the results of the PRA are shown in Tables 6.2–6.4.

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TABLE 6.1

Severity of Sellafield events with impacts on Ireland

Ireland Impact Scale

Type of Incident

Impact on Ireland

1

Problems such as minor equipment malfunctions or human error leading to releases of radioactive materials that remain inside a facility More serious equipment ­malfunctions or compounded human errors leading to significant releases contained inside a facility, with potential injuries to site personnel Explosions, fires, and other incidents that result in significant releases within the Sellafield Site and possible injuries or death to site personnel Incidents such as earthquakes that affect only one facility and release limited quantities of highly concentrated radioactive liquids or concentrated radioactive materials; effects limited to areas near the Sellafield Site; possibly injuries or deaths among site personnel and adjacent populations in the UK; possible runoff to the Irish Sea Severe incidents such as ­earthquakes that damage multiple facilities and that release highly concentrated radioactive liquids or moderate quantities of ­intermediate-activity materials;

No observable health effects in Ireland; continued vigilance by the Irish Government to understand the implications of problems at the site No observable health effects in Ireland; continued vigilance by the Irish Government to understand the implications of problems at the site

2

3

4

5

No observable health effects in Ireland; possibly perception by the public that risks to Ireland have increased No observable health effects in Ireland; possibly significant socioeconomic impact for Ireland in terms of tourism and perception of contamination of food supplies and fisheries; possibly significant increased radiation level monitoring by Irish authorities No observable health effects in Ireland; possibly significant socioeconomic impact for Ireland in terms of tourism and perception of contamination of food supplies and fisheries;

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Ireland Impact Scale

6

Type of Incident

Impact on Ireland

protective measures required near the site to prevent health effects there; contamination of the Irish Sea Very rare severe incidents such as impacts by meteorites that disperse highly concentrated radioactive materials or release large quantities of intermediate-activity materials; health effects in the UK adjacent to the site, including fatalities; releases into the atmosphere with subsequent dispersion and dilution

possibly decreased real estate values; possibly major increased radiation level monitoring by Irish authorities No observable health effects in Ireland; possibly major socioeconomic impact for Ireland in terms of tourism and perception of contamination of food supplies and fisheries; possibly prolonged major increased radiation level monitoring by Irish authorities

TABLE 6.2 Incidents that contribute to Sellafield impact category 4 Incident

Earthquake damage to a facility that contains concentrated radioactive materials Large unconfined leak from a historic storage pond for radioactive materials Very strong winds (greater than 165 mph) that damage a facility containing concentrated radioactive materials

Best Estimate Frequency, event per year

Probability that the incident will occur at some time in the next 100 years Best Estimate

Range of Uncertainty

1×10–3

12%

4% to 26%

2×10–4

2%

0.02% to 6%

8×10–5

0.8%

0.004% to 3%

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TABLE 6.2 Incidents that contribute to Sellafield impact category 4 (cont.) Incident

Unconfined leak from a processing pipe holding concentrated radioactive liquids Aircraft crash, test missile crash, or meteorite impact into a facility that contains concentrated radioactive materials Unconfined leak through a cooling coil in a tank storing highly concentrated radioactive materials Any of the above incidents

Best Estimate Frequency, event per year

Probability that the incident will occur at some time in the next 100 years Best Estimate

Range of Uncertainty

7×10–5

0.7%

0.2% to 2%

2×10–5

0.2%

0.01% to 0.6%

1×10–5

0.1%

0.01% to 0.5%

1.6×10–3

16%

6% to 32%

A 16% probability that one of these incidents may occur at some time during the next 100 years equivalently means that there is an 84% probability that none of these incidents will occur during the next 100 years.

TABLE 6.3 Severe incidents that contribute to Sellafield impact category 5 Incident

Severe earthquake damage to multiple facilities that contain intermediate activity materials

Best Estimate Frequency, event per year

4×10–5

Probability that the incident will occur at some time in the next 100 years Best Estimate

Range of Uncertainty

0.4%

0.1% to 0.8%

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Incident

Very strong wind damage to multiple facilities that contain intermediate activity materials Severe earthquake damage to a facility that contains highly radioactive liquids Very strong wind damage to a facility that contains highly radioactive liquids Meteorite impact into a facility that contains highly radioactive liquids Aircraft or test missile crash into a facility that contains highly radioactive liquids Any of the above severe incidents

Best Estimate Frequency, event per year

Probability that the incident will occur at some time in the next 100 years Best Estimate

Range of Uncertainty

3×10–6

0.03%

0.002% to 0.1%

2×10–6

0.02%

0.006% to 0.06%

1×10–6

0.01%

0.00002% to 0.03%

4×10–7

0.004%

0.00005% to 0.02%

3×10–7

0.003%

0.0005% to 0.008%

5×10–5

0.5%

0.2% to 0.9%

A 0.5% probability is a one-half of one percent probability that one of these incidents may occur at some time during the next 100 years. This equivalently means that there is 99.5% probability that none of these incidents will occur during the next 100 years.

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TABLE 6.4 Very rare severe incidents that contribute to Sellafield impact category 6 Incident

Best Estimate Frequency, event per year

Probability that the incident will occur at some time in the next 100 years Best Estimate Range of Uncertainty

Meteorite impact into a facility that contains highly radioactive materials Severe earthquake damage to a facility that contains used nuclear fuel Test missile crash into a facility that contains highly radioactive materials Aircraft crash into a facility that contains highly ­radioactive materials Severe site-wide earthquake damage Any of the above very rare severe incidents

7×10–7

0.007%

0.00009% to 0.03%

6×10–7

0.006%

0.002% to 0.01%

2×10–7

0.002%

0.0002% to 0.006%

2×10–7

0.002%

0.00003% to 0.007%

5×10–8

0.0005%

0.00002% to 0.002%

2×10–6

0.02%

0.003% to 0.05%

A 0.02% probability is two one-hundredths of one percent probability that one of these severe incidents may occur at some time during the next 100 years. This equivalently means that there is 99.98% probability that none of these incidents will occur during the next 100 years.

The quantitative risk information is just one result of the study. Understanding the kinds of events—entire scenarios—that can lead to these results, understanding the limited impacts on Ireland even when the impacts on and near Sellafield can be severe, and understanding the countermeasures that are in place to limit the likelihood and severity of accident scenarios were even more important. The process encouraged a move away from emotional confrontation to one of open discussion. Finally, due to the multi-year nature of the project and the extensive interactions between the PRA team and the site experts, with the participation of personnel from both Irish and UK agencies, the parties gradually were able to improve relations.

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Macondo Well, Deepwater Horizon Blowout: Would PRA Have Helped? The blowout of the Macondo well in 2010 led to wide-ranging consequences: the environment was damaged, workers on the Deepwater Horizon drilling rig were killed and injured, the companies involved in the drilling operations were damaged in reputation and finances, and the regional economy suffered extensively. Early reports in the New York Times pointed out that PRA had flagged important issues involved in the disaster. [Barstow 2010 and NYT 2010] The PRA was neither published in the open literature nor acknowledged, apparently for legal reasons. But, from the reports in the New York Times, we can infer that it could have been performed before the event and, if its results were heeded, could have helped avert the disaster. The blind shear ram in the blowout preventer can completely seal off the well, when a rig worker presses an emergency button, sending an electrical signal to one of the control pods. The control pod then sends hydraulic fluid through a shuttle valve into the blind shear ram, which cuts through the drill pipe and seals the well. Records show that at least one rig worker hit an emergency button in the first minutes, but the shear ram failed to seal off the well. Risk analysis commissioned by the manufacturer identified multiple single failures, including the shuttle valve. Later reports [US CSHIB 2014, Winter 2012, and Kenny 2011] have identified additional contributing factors, but single failure points remain a strong possibility. 2.2

2.3 Application of PRA to Seaborne Shipping Recent years have found increased commercial shipping through the Aleutian Islands (see Figure 6.5) and into the sometimes-treacherous waters of the Bering Sea. The primary driving force is cost of shipping, because a North Pacific great circle route from Asia to North America passes through the Aleutians. One unfortunate result has been an increase in shipping accidents and associated oil spills. There were 26 known spills of more than 1,000 gallons near the Aleutians, during the 25 years preceding the National Academy report described below. Seven of these were very significant exceeding 35,000 gallons. Details of five of the larger spill are provided in the appendix to this section. The Aleutian Islands are home to natural resources found nowhere else in the world, and the regional economy is dominated by commercial fishing. Protection of the region’s natural resources is therefore a paramount public concern. A commercial vessel accident and large oil spill in 2004 focused public attention on the risks inherent in commercial shipping in the region. The court settlement resulting from this accident established ­funding for a

FIGURE 6.5 The Aleutian Islands.

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FIGURE 6.6 Scenario model for the Aleutians shipping risk assessment.

c­omprehensive risk assessment and directed the US Coast Guard to take actions necessary to conduct this assessment. The Coast Guard and the State of Alaska, recognizing the complexity of such an undertaking, asked the National Academies to develop a framework and the most appropriate and scientifically rigorous approach possible for the mandated comprehensive risk assessment. The resulting report reviewed the history of accidents and spills in the Aleutians, provided a primer on risk assessment, and laid out a detailed plan for a step-wise approach for carrying out the risk assessment and making decisions about risk improvements, including emergency services. [Michel 2008] The National Academies report recommended a phased approach, to better control resources, focus efforts on the most risk-import areas, foster community involvement, and garner early practical risk management results:

•

Phase A: focused scoping analysis Traffic study, spill baseline study, identification of high-risk accidents, limited consequence analysis, accident scenario and causality study Result: qualitative assessment of risk reduction options Phase B: extend analysis based on Phase A Support robust decisions on the selection, design, and implementation of risk control measures Quantitative analysis to the extent possible, including more detailed causal modeling; consideration of human factors; evaluation of rare, high-­ consequence events; formal use of expert opinion; and rigorous uncertainty and sensitivity analyses

•

The report recognized the International Maritime Organization’s (IMO) formal safety assessment process, and adapted it to the needs of the Aleutian Islands shipping problem. This process led to the scenario model illustrated in Figure 6.6. The scenario model would be developed for each ship type and

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location within the waters near the Aleutian chain. Under specific conditions of weather and sea state, it would evaluate the likelihood of the various causes of accidents and the associated opportunities for control (prevention of accidents). The accidents would be grouped into categories involving similar immediate damage. Following damage, the opportunities for control (mitigation of potential evolving damage) are considered. Under each mitigation case, fate and transport models calculate the environmental consequence and the risk management program can examine opportunities for remediation. Since publication of the National Academies’ risk assessment plan, the Coast Guard has implemented the plan and reports on the status of the actual risk assessment and risk management are available on the project website: http://www.aleutianriskassessment.com.

Appendix to the Seaborne Shipping PRA: Summaries of Five Accidents in the Aleutians M/V Selendang Ayu November–December 2004

Vessel: Malaysian-registered bulk carrier, 738 feet, 40,000 gross tons Carrying: 60,000 tons of soybeans and 1,000 tons of fuel oil Casualty: lost power; vessel ran aground and broke up after drifting 100 miles Location: north shore of Unalaska Island Consequences: six fatalities, one serious injury; $12 million vessel loss; rescue helicopter crashed; 336,000 gallons of heavy fuel oil spilled Causal Factors: Main engine failure, crew unable to repair and restart Severe weather, high winds and seas contributing to problems with repair work and with rescue operations Failure to notify authorities and seek assistance in a timely manner Lack of adequate emergency towing/anchoring gear Inadequate prior engine maintenance Lack of adequate rescue/towing equipment in the region Lack of proper survival equipment for crew

• • • • • • •

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M/V Kuroshima November 1997

Vessel: Japanese registered freighter, 367 feet Carrying: fisheries cargo and bunker fuel oil Casualty: Vessel dragged anchor in harbor and ran aground Location: Dutch Harbor Consequences: one fatality; vessel damage; 40,000 gallons of heavy fuel oil spilled onto beach and freshwater lake Causal Factors: Severe storm, high winds and seas Inadequate emergency anchoring system Lack of adequate tow/rescue tug in region

• • •

M/V Cougar ACE July 2006

Vessel: Singapore registered car carrier, 654 feet Carrying: 4,800 vehicles, 180,000 gallons of fuel Casualty: vessel heeled over 80 degrees, was adrift without power for a few days Location: south of Aleutians Consequences: one fatality; vessel damage; vessel able to be towed to Dutch Harbor for repairs; near-miss polluting event Causal Factors: Under investigation at time of report

•

T/B Foss 256 January 1989

T/B Foss 256 January 1989 Vessel: U.S. registered tug-barge unit Carrying: fuel oil cargo for Navy facility in western Aleutians Casualty: high winds pushed barge over rocks while oil was being transferred to shore; vessel ran aground and several cargo tanks were penetrated Location: Amchitka Island, western Aleutians Consequences: 84,000 gallons of diesel oil spilled; no cleanup Causal Factors: Severe weather No emergency response equipment in the area Other factors unknown

• • •

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Vessel: U.S. registered fishing vessel out of Dutch Harbor Carrying: 7,000 gallons of diesel fuel Casualty: vessel lost power and control when fishing gear became entangled in rudder; vessel drifted to Unimak Island shore, grounded, and was penetrated Location: Unimak Island just west of Unalaska Consequences: all 7,000 gallons of diesel fuel spilled; no cleanup Causal Factors: Inadequate care paid to handling of fishing gear Heavy weather Lack of available emergency response

• • •

References [Atwood 2003] C.L. Atwood, J.L. LaChance, H.F. Martz, D.J. Anderson, M. Englehardt, D. Whitehead, and T. Wheeler, “Handbook of Parameter Estimation for Probabilistic Risk Assessment,” NUREG/CR-6823, U.S. Nuclear Regulatory Commission, Washington, DC, 2013. [Barstow 2010] Barstow, D., L. Dodd, J. Glanz, S. Saul, and I. Urbina, “Regulators Failed to Address Risks in Oil Rig Fail-Safe Device,” New York Times, June 20, 2010. [Bley 1992] Bley, D.C., S. Kaplan, and D.H. Johnson, “The Strengths and Limitations of PSA: Where We Stand,” Reliability Engineering and Systems Safety, Vol. 38, pp. 3–26, 1992. [Bley 2012] Bley, D.C., J. Bell, M.T. Ryan, J.W. Stetkar, and J. Wreathall, “Risks to Ireland from Incidents at the Sellafield Site,” available by download from the Department of Environment, Community and Local Government of Ireland: http://www.environ .ie/en/Environment/EnvironmentalRadiation/PublicationsDocuments/ FileDownLoad,31607,en.pdf. [Budnitz 1997] Budnitz, R.J., G. Apostolakis, D.M. Boore, L.S. Cluff, K.J. Coppersmith, C.A. Cornell, and P.A. Morris, “Recommendations for Probabilistic Seismic Hazard Analysis: Guidance on Uncertainty and Use of Experts,” NUREG/CR-6372, U.S. Nuclear Regulatory Commission, Washington, D.C., 1997. [Hogarth 1975] Hogarth, R.M., “Cognitive Process and the Assessment of Subjective Probability Distributions,” Journal of the American Statistical Association, Vol. 70, No. 350, pp 271–294, June 1975. [IMO 2002] “Guidelines for Formal Safety Assessment,” IMO MSC/Circ. 1023, MEPC/ Circ. 393, International Maritime Organization, 2002.

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[IAEA 2009] “INES: The International Nuclear and Radiological Event Scale User’s Manual, 2008 Edition” IAEA, Vienna, 2009. [Kaplan 1979] S. Kaplan and B.J. Garrick, “On the Use Of a Bayesian Reasoning in Safety And Reliability Decisions—Three Examples,” Nuclear Technology, Vol. 44, pp. 231–245, July 1979. [Kaplan 1981] S. Kaplan and B.J. Garrick, “On the Quantitative Definition of Risk,” Risk Analysis, Vol. 1, No. 1, pp. 11–27, 1981. [Kenny 2011] Kenny, G.D., B.A. Levett, N.G. Thompson, “Forensic Examination Of Deepwater Horizon Blowout Preventer,” Report No. EP030842, Det Norske Veritas, 20 March 2011. [Magee 1997] Magee, R.S., E.M. Drake, D.C. Bley, G.H. Dyer, V.E. Falter, J.R. Gibson, M.R. Greenberg, C.E. Kolb, D.S. Kossen, W.G. May, A.H. Mushkatel, P.J. Niemiec, G.W. Parshall, W. Tumas, and J-S. Wu, “Risk Assessment and Management at Deseret Chemical Depot and the Tooele Chemical Agent Disposal Facility,” Committee on Review and Evaluation of the Army Chemical Stockpile Disposal Program, National Research Council, National Academy Press, Washington, D.C., 1997. [Malsch 2013] Malsch, M.G., “Environmental Regulation and Probabilistic Risk Assessment,” in Nordquist, M.H., J.N. Moore, A. Chircop, and Ronán Long, eds., The Regulation of Continental Shelf Development Rethinking International Standards, Martinus Nijhoff, 2013. [Michel 2008] Michel, R. Keith, Dennis C. Bley, Thomas M. Leschine, Henry S. Marcus, Denise McCafferty, Ali Mosleh, Robert C. North, Margaret Williams, “Risk of Vessel Accidents and Spills in the Aleutian Islands: Designing a Comprehensive Risk Assessment,” Special Report 293, Transportation Research Board, Washington, D.C. 2008. [NYT 2010] “Investigating the Cause of the Deepwater Horizon Blowout,” New York Times, June 21, 2010. [Rassmussen 1975] Rasmussen, N.C., et al., The Reactor Safety Study, WASH-1400 (NUREG-75–014), U.S. Nuclear Regulatory Commission, Washington, D.C., 1975. [US CSHIB 2014] US Chemical Safety and Hazard Investigation Board Investigation Report, “Explosion and Fire at the Macondo Well,” Report No. 2010-10-I-OS, June 5, 2014. [Winkler 2003] R.L. Winkler, An Introduction to Bayesian Inference and Decision, Second Edition, Probabilistic Publishing, 2003. [Winter 2012] Winter, D.C., P.M. Bommer, C. Chryssostomidis, D.E. Daniel, T.J. Eccles, E.P. Giambastiani, Jr., D.A. Hofmann, R.L. Mccarthy, N. Meshkati, M.E. Paté-Cornell, R.F. Sawyer, J.E. Scott, A.F. Stancell, and M.D. Zoback, “Macondo Well-Deepwater Horizon Blowout: Lessons for Offshore Drilling Safety,” The National Academies Press, Washington, 2012.

Part 2 Arctic Continental Shelf Petroleum

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CHAPTER 7

Russia’s Energy Policy in the Arctic Region and China’s Opportunities Kuen-chen FU* Abstract From three perspectives this paper discusses opportunities for the Chinese to take part in the development of energy resources in Russia’s Arctic continental shelf: First, Chinese energy demand; second, relevant Russian energy laws and policies in the Arctic region; and third, some international legal issues related to the exploitation of oil and gas in the Arctic region. The author points out that there are real opportunities, but also risks. The paper gives some comments and suggestions on China’s position in the development of energy resources in the Arctic region.

Keywords Continental Shelf – the Arctic Ocean – Russia – China – Oil and Gas

For decades, Russia has been regarded as an “energy superpower”, a phrase implying its huge reserves of energy resources and its influence on the energy market and geopolitics. In recent years, there are more and more discussions about the promising prospects of the offshore oil and gas reserves in the Russian continental shelf in the Arctic region. For roughly the same time, China has been regarded as a “world factory.” This means China has become a major energy consumer in the world, the second largest actually. As neighbors, China and Russia have already launched some cooperative projects in the field of energy, including the Sino-Russian Eastern Petrochemical Company (Tianjin) and the newly signed East Route Gas Project.

* Kuen-chen FU, ‘One Thousand Elites Program’ State Expert, Editor-in-Chief of China Oceans Law Review, ZhiYuan Chair Professor of Shanghai Jiao Tong University, Director of the Centre for Polar and Deep Ocean Development.

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004314252_009

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Are there any opportunities for Chinese companies to take part in the exploration and exploitation of the Arctic energy resources, particularly in the Russian continental shelf? In order to answer this question, three angles need to be considered: (1) Chinese energy demands; (2) relevant Russian policies and legislations; and (3) international legal issues related to the exploitation of oil and gas in the Arctic region. 1

China’s Energy Demands

China’s rapid economic growth since the 1990s has been accompanied by a growth in energy consumption. From Figure 7.1 we can see the rise in energy consumption in China, and the growing role of oil and gas. There is a consensus about the importance of oil and gas to China’s economy. With the advancement of exploration technologies, the quantity of China’s proven oil and gas reserves is growing. The prospect of shale gas is a hot topic today. But, at present, China’s energy situation is not optimistic. The major problem is that dependence on imported oil is still rather high. “Oil and gas are strategic resources which would affect the sustainable development of our nation’s economy and society. Governments around the world all pay keen attention to these resources. At present the oil import dependency of our nation is already over 50%” said XU Dachun, Vice Director-General of the Mineral Reserve Department of the Ministry of Land and Resources, in the 2013 press conference “Growth of the Major Mineral Reserves and the Situation of Resource Conservation and Comprehensive Utilization.”1 According to statistical data published by the General Administration of Customs of China, crude oil importation in 2013 reached 282 million tons, 4.03% more than 2012. In December 2013 alone it reached 26.78 million tons, a historic high for a single month. The exports were only 1.62 million tons, 33.3% less than 2012.2 The 2013 Domestic and International Oil and Gas Industries Development Report, published by the CNPC Economic & Technology Institute, estimates that the net import of oil will keep increasing in 2014: for petroleum the importation will reach 304 million tons, 5.3% higher than for 2013; for crude oil the importation will reach 298 million tons, 7.1% higher than in 1  The title of the report and the speech quoted have been translated by the author. For the full text in Chinese see: http://www.mlr.gov.cn/wszb/2014/2013kczysj/jiabin/index_2840.htm, last accessed on 23 September 2014. 2  “Analysis of Reasons for China’s Increasing Importation of Crude Oil in 2013,” available at http://www.chinairn.com/print/3414132.html, last accessed on 23 September 2014.

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FIGURE 7.1 Chinese energy consumption (unit: 10,000 tons of standard coal). THE DATA IS DERIVED FROM THE WEBSITE OF THE NATIONAL BUREAU OF STATISTICS OF CHINA.3

2013.4 Moreover, some institutes anticipated that China might become the largest oil importing country in 2017.5 The concept of “energy security” is of great importance to the Chinese Government. In the Chinese government’s 12th Five-Year Plan for Energy Development, published on 1 January, 2013, the aims included: (1) the improvement of energy efficiency; (2) the optimization of energy structure; (3) increasing the share of gas in the primary energy consumption; and (4) maintaining the oil import dependency under 61%.6 3  Available at http://www.stats.gov.cn/tjsj/ndsj/2013/indexce.htm, last accessed on 23 September 2014. 4  The title of the report has been translated by the author. For the Chinese abstract, see: http:// www.cssn.cn/jjx/jjx_dt/201401/t20140117_946173.shtml, last accessed on 23 September, 2014. 5  “China to Leapfrog US in Oil Imports by 2017,” China Daily USA, available at http://usa .­chinadaily.com.cn/business/2013-08/22/content_16912074.htm, last accessed on 23 September 2014. 6   For a brief introduction of the Plan, see: http://iepd.iipnetwork.org/policy/energy-­ development-plan-12th-five-year-plan. For the Chinese text, see: http://www.nea.gov.cn/ 2013-01/28/c_132132808.htm, last accessed on 24 September 2014.

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In respect to energy efficiency, progress has already been quite fruitful. According to the 2014 International Energy Efficiency Scorecard, published by American Council for an Energy-Efficient Economy (ACEEE) on 17 July 2014, China is tied for fourth place with the European Union, among 16 of the world’s largest economies, in energy efficiency ranking.7 With respect to the high import dependency, since 70% of China’s imported oil is shipped through the Hormuz Strait or Malacca Strait, and considering the risks in this, there is a consensus that China needs to diversify its sources of energy importation. For this purpose, China has been constructing oil and gas pipelines with neighboring countries, e.g., the China-Russia, ChinaKazakhstan, and China-Burma pipelines. The top 10 crude oil suppliers for China from 2012 to 2013 are illustrated in Figure 7.2 where Russia is ranked fourth. And the top 10 natural gas suppliers for China in 2013 are listed in Table 7.1. After the Sino-Russian east line natural gas cooperation project is completed in 2018, the list will change accordingly. TABLE 7.1

Top 10 natural gas suppliers for China in 2013. Source: based on the report of China Daily.8

Country

2013 Imports(billion cubic meters)

Percentage

Turkmenistan Qatar Australia Malaysia Indonesia Uzbekistan Yemen Egypt Equatorial Guinea Nigeria

24.7 9.5 5 3.6 3.5 2.9 1.6 0.6 0.56 0.51

46.48 17.76 9.33 6.77 6.59 5.5 2.94 1.14 1.05 0.96

7  “Germany, Italy, EU, China, and France Top Global Energy Efficiency Rankings,” available at http://www.aceee.org/press/2014/07/germany-italy-eu-china-and-france-to, last accessed on 28 September 2014. 8   Available at http://www.chinadaily.com.cn/business/2014-05/29/content_17544363.htm, last accessed on 24 September 2014.

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FIGURE 7.2 Top 10 crude oil suppliers to China, 2012–2013. CHINA’S 2013 OIL AND GAS IMPORTS/EXPORTS.9

In light of China’s energy situation and the national plan, there will be reasonable motivation for Chinese companies to ‘look up’ at the Arctic—a region rich in the future for oil and gas. In a notable 2008 report, the US Geological Survey (USGS) estimated that 13% of the world’s yet-to-be-discovered oil reserves and 30% of the undiscovered gas reserves are in the Arctic “of which approximately 84% is expected to occur in offshore areas”. The report says that “the extensive Arctic continental shelves may constitute the geographically largest unexplored prospective area for petroleum remaining on Earth.”10 According to other studies, more than half of Arctic oil and gas resources are deposited in areas which belong to or are claimed by the Russian Federation.11 There are more than 200 prospective

9   TIAN Chunrong (China Petrochemical Corporation, Sinopec Group), International Petroleum Economics, 2014/03, p. 32. 10   The report is available at http://pubs.usgs.gov/fs/2008/3049/fs2008-3049.pdf, last accessed on 28 September, 2014. 11  Arctic Oil and Gas, published by EY, available at http://www.ey.com/Publication/­ vwLUAssets/Arctic_oil_and_gas/$File/Arctic_oil_and_gas.pdf, last accessed on 28 September 2014.

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and more than 20 proved or expected oil and gas fields located in the Arctic Ocean, primarily in the Barents and Kara Seas.12 Because the reserves are largely distributed on the continental self, there is another factor to take into consideration when thinking about ‘looking up at the Arctic’—China’s advantage of technical capacity in the field of offshore oil and gas exploitation. For example, the HaiYang ShiYou Platform 981 has a maximum operating water depth of 3,000m and its maximum drilling depth is 10,000 m.13 With respect to comprehensive abilities, it is rated in the top 3 of the 17 or 18 similar platforms in the world.14 To conclude, based on China’s increasing energy consumption, Chinese oil and gas companies will be interested in the Arctic region which is rich in energy resources especially when they possess the technical capacity. Whether there are veritable opportunities for Chinese companies or not, there are two other aspects that need to be examined. 2

Russia’s Policy towards Arctic Development

Historically, Russia is a nation quite sensitive about its security. During the Cold War, the Arctic region played an important role in the national defense and military strategy of the USSR. Since its economic recovery around 2000, the role of energy resources in the national economy and national security has been highly valued by the Russian government. With the prospect of energy development and commercial shipping in the Arctic coming into sight, Russia formulated some Arctic strategies. The analysis below will focus on Russian policies and legislation on Arctic energy resources. The pertinent question here is: Will Russia welcome any foreign companies to take part in the development of its energy reserves? 2.1 Arctic Strategy Basics of State Policy of the Russian Federation in the Arctic to 2020 and Beyond (hereinafter referred to as the 2008 Basics), signed by President 12  “Russia’s Energy Strategies in the Arctic,” available at http://valdaiclub.com/­economy/ 59747.html, last accessed on 28 September 2014. 13  “Deepwater Drilling Rig ‘Hai Yang Shi You 981’ Commences Operation in the South China Sea,” available at http://en.cnooc.com.cn/data/html/news/2012-05-09/english/316363 .html, last accessed on 28 September 2014. 14   News Release on the ‘HYSY 981’ Incident, available at http://www.infzm.com/­ content/75070, last accessed on 1 December 2014.

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Dmitry Medvedev in September 2008, was the first main official Russian policy ­document on the Arctic. In paragraph 4 of this document, the natural resources are viewed as the first of Russia’s “national interests” in the Arctic: 4. The basic national interests of the Russian Federation in the Arctic are: a) use of the Arctic zone of the Russian Federation as a strategic resource base of the Russian Federation providing the solution of problems of social and economic development of the country; b) maintenance of the Arctic as a zone of peace and cooperation; c) preservation of unique ecological systems of the Arctic; d) use of the Northern Sea Route as a national single transport communication of the Russian Federation in the Arctic.15 The 2008 Basics emphasized international cooperation and other aspects related to the development of Russian Arctic resources such as “investigation and exploitation of the continental shelf” (paragraph 8.a), the concept of “environmental security” (paragraph 8.c), “development of the scientific research fleet” (paragraph 8.e), and so on. Principally, this document is similar in content to the Canadian and Norwegian strategies for the development of their Arctic territories.16 On 20 February 2013, President Vladimir Putin approved The Strategy for the Development of the Arctic Zone of the Russian Federation and National Security up to 2020 (hereinafter referred to as the 2013 Strategy), which is both a follow-up and an updated version of the earlier 2008 Basics.17 With respect to the energy resources, some important points in the 2013 Strategy should be highlighted. Firstly, paragraph 29.d shows Russia’s intention legally to define Russia’s continental shelf in the Arctic Ocean and to file its new application with the UN Commission on the Limits of the Continental Shelf (CLCS). Secondly, paragraph 5.b states that Russia lacks “equipment and technologies for exploration and development of offshore hydrocarbon fields in the Arctic”. 15  For this unofficial translation, see: http://www.arctis-search.com/Russian+Federation+Po licy+for+the+Arctic+to+2020, last accessed on 28 September, 2014. 16  See Indra Øverland, “Russia’s Arctic Energy Policy,” International Journal, Autumn 2010, pp. 867–868. 17  For the unofficial translation, see: http://www.iecca.ru/en/legislation/strategies/item/99the-development-strategy-of-the-arctic-zone-of-the-russian-federation, last accessed on 28 September 2014.

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Thirdly, “international cooperation” is listed in the “Priority Areas”. Paragraph 7 reads: 7. Priority areas of the Arctic zone of the Russian Federation and national security are: a) integrated socio-economic development of the Arctic zone of the Russian Federation; b) the development of science and technology; c) the establishment of a modern information and telecommunications infrastructure; g) environmental security; d) international cooperation in the Arctic; e) provision of military security, protection, and protection of the state border of the Russian Federation in the Arctic. Fourthly, compared to the 2008 Basics, much greater attention is paid to the environmental problems in the Arctic. It establishes a set of priorities for Russian environmental policies in the Arctic Zone and pledges significant financial contribution to potential environmental projects in the region.18 The 2013 Strategy is an “umbrella” document, rather than a legally binding and comprehensive doctrine, a good starting point for further discussions of Russia’s Arctic policies. Through the above analysis, we can see that Russia (1) attaches great importance to the role of Arctic resources in the national economy; (2) recognizes the disadvantages of its lack of technical ability for the development of the Arctic resources; and (3) welcomes international cooperation on Arctic affairs. 2.2 Subsoil Law and the Shtokman Project The Russian Federal Law “On Subsoil”, issued on 21 February 1992, and the Regulations on the Licensing of Subsoil Use comprise the main body of the licensing regime that regulates the exploration and production of subsoil resources in the internal seawater, territorial sea and continental shelf of the Russian Federation. On the other hand, the federal law on the Procedure for Making Foreign Investments in Business Entities of Strategic Importance for the National Defense and Security of the Russian Federation, dated 7 May, 2008 (the “Strategic Investment Law”), and the related amendments to the Subsoil Law limit the development of offshore fields to only state-owned oil 18  “New Russian Arctic Doctrine: From Idealism to Realism?” available at http://valdaiclub .com/russia_and_the_world/60220.html, last accessed on 24 September 2014.

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and gas companies (where more than 50% of the shares are owned by the state).19 Thus, the main players are Gazprom, Rosneft and Zarubezhneft. In the Arctic, Gazprom is mainly responsible for gas fields, and Rosneft for oil fields.20 The Russian petroleum industry specializes in land-based extraction and transportation of oil and gas. Developing the offshore fields in the Arctic will bring about a series of challenges with which the Russian Companies have little experience. Moreover, due to the special natural conditions in the Arctic region, the cost of such development projects, including the expenses for environmental protection, will be considerable. In dealing with these challenges, Russian oil and gas companies will benefit from the involvement of foreign companies.21 To better understand the joint project for the Arctic gas and oil exploitation, a case study will be helpful. In February, 2008, Gazprom (Russia), Total (France) and Statoil (Norway) established the Shtokman Development AG (SDAG)—Gazprom owned 51% of the shares while Total had 25% and Statoil 24% of shares—in order to implement the first of the three phases of exploration of the Shtokman field. The Shtokman field is located in the middle of the Russian Barents Sea offshore area. The field was discovered in 1988 with total estimated reserves of 3.8 trillion cubic meters of gas and 53.4 million tons of gas condensate. The gas recovery process is expected to start in 2016, and the production of liquefied natural gas is expected to begin in 2017.22 However, the project did not progress well. On 10 August 2012, Statoil announced that it had withdrawn from the Shtokman Project and handed its shares back to Gazprom.23 On 30 August 2012, an announcement was made by Vsevolod Cherepanov, member of the board of Gazprom, that the “investment decision on Shtokman is being put on hold”, postponed until at least 2014,

19  “Russian Oil and Gas Sector Regulatory Regime,” available at http://www.kslaw.com/­ imageserver/kspublic/library/publication/russianoilgas.pdf, last accessed on 24 September 2014. 20   “Russia’s Energy Strategies in the Arctic,” available at http://valdaiclub.com/­ economy/59747.html, last accessed on 24 September 2014. 21  See Indra Øverland, “Russia’s Arctic Energy Policy,” International Journal, Autumn 2010, pp. 870–871. 22  For the outline of Shtokman project, see http://www.gazprom.com/about/production/ projects/deposits/shp/, last accessed on 24 September, 2014. 23  “Statoil Writes Off $336 Million Shtokman Gas Investment,” available at http://uk.reuters. com/article/2012/08/07/statoil-shtokman-idUSL6E8J76LB20120807, last accessed on 24 September 2014.

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c­ iting high costs and low gas prices as its concerns. It indicated the difficulty of joint oil and gas development in Russia. In October 2012, Putin announced that “the investment decision (on Shtokman) will be taken in the near future, and work will begin in 2017”. In contrast with Vladimir Putin’s optimism on the Shtokman project, Gazprom has no plans to extract gas from the Shtokman field until 2020.24 As pointed out by Lassi Heininen et al., there are three conditions for the success of the Shtokman project: First, emergence of more cost-efficient and environment-friendly technologies for offshore drilling; second, positive trends and a favorable outlook on the world gas market; and third, improving the tax legislation in Russia for offshore projects.25 The three conditions for the success of the Shtokman project are basically economic concerns. On the tax issue, Russia has already made some improvements. And public opinion generally has confidence in the development of technology. However, the price of oil and gas in the international market is influenced by complex factors. Will there be more joint projects in the Russian Arctic region? The answer largely depends on Russia’s political will. 2.3 More joint projects in the Arctic Region? Last summer (4 June 2013), Russian Prime Minister Dmitry Medvedev said at a meeting of prime ministers at the Barents Euro-Arctic Council in Norway that Russia proposed establishing a mechanism to fund joint projects in the Barents Euro-Arctic region.26 It shows that Russia is looking to expand international projects in the Arctic. On the other hand, Russia has some worries, such as the likelihood of the active development of the Arctic continental shelf causing conflict and sabotage. Deputy Prime Minister Dmitry Rogozin said on 28 June 2013: “Active development of the Arctic shelf will unavoidably lead to a conflict of interest between states aspiring for [shelf] resources. It is possible that conflict will exceed the diplomatic limits . . . It is also quite possible that Russian oil and

24  “Russia’s Energy Strategies in the Arctic,” available at http://valdaiclub.com/­economy/ 59747.html, last accessed on 24 September 2014. 25  Ibid. 26  “Medvedev Supports Joint Funding of International Projects in Arctic,” available at http://rbth.com/news/2013/06/04/medvedev_supports_joint_funding_of_international_­ projects_in_arctic_26686.html, last accessed on 24 September 2014.

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gas production facilities may become targets of secret acts of sabotage by rival countries.”27 It is worth noting that the co-operation between Russia and China is developing quickly. After Italian Eni, Norwegian Statoil, and American Exxon-Mobil, in March 2013, Rosneft signed an agreement to explore the Zapadno-Prinovozemelsky structure in the Barents Sea and the YuzhnoRussky and Medynsko-Varandeysky structures in the Pechora Sea with the China National Petroleum Corporation.28 On 21 May 2014, Chinese State Chairman Xi Jinping and Russian President Putin signed the “Sino-Russian East Line Natural Gas Cooperation Memorandum” in Shanghai, and a sale contract was signed between China National Petroleum Corporation and Gazprom. According to this big deal, Russia will start sending gas to China for 30 years beginning in 2018. The annual supply will be escalating up to 38 billion cubic meters annually. According to the China-Russia Joint Statement on a New Stage of Comprehensive Strategic Partnership of Coordination, signed 20 May 2014, these two nations will “establish a comprehensive energy cooperation partnership”.29 Such energy cooperation, on the national strategy level, clearly shows the political will of both Russia and China. 3

Some International Law Issues

As mentioned above, the oil and gas reserves discussed in this paper are mainly distributed on the Russian continental shelf under the Arctic Ocean; therefore some international legal issues require our attention, such as respecting the Arctic States’ sovereignty, sovereign rights and jurisdiction in the Arctic, delimitation of maritime zones and outer continental shelves, and the application of some other provisions in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), as well as the role of the Arctic Council in Arctic governance. 27  “Deputy Prime Minister: Active Development of Arctic Shelf to Cause Conflict of Interest, Sabotage,” available at http://rbth.com/news/2013/06/28/deputy_prime_­ minister_active_development_of_arctic_shelf_to_cause_confli_27576.html, last accessed on 24 Septem­ber 2014. 28   “China to Drill in Barents Sea,” available at http://barentsobserver.com/en/energy/ 2013/03/china-drill-barents-sea-25-03, last accessed on 24 September 2014. 29  “China, Russia Ink Long-Awaited Gas Deal,” available at http://news.xinhuanet.com/­ english/china/2014-05/21/c_133351205.htm, last accessed on 25 September 2014.

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3.1 To respect Arctic States’ sovereignty, sovereign rights and jurisdiction There used to be some discussion as to what kind of legal system should govern the Arctic region, or in what way the Arctic Five (e.g., the five coastal States of the Arctic Ocean) should claim sovereignty, sovereign rights and jurisdiction in the Arctic. Today the discussion has basically been settled—the coastal States of the Arctic Ocean can legally claim different maritime zones according to UNCLOS. In the Ilulissat Declaration, announced on 28 May 2008, the five coastal States of the Arctic Ocean stated: Notably, the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea. We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims. This framework provides a solid foundation for responsible management by the five coastal States and other users of this Ocean through national implementation and application of relevant provisions. We therefore see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean. With the prospect of commercialization of the Arctic Passage getting brighter, China will become a major user of the Arctic Ocean. On 15 May 2013, China, India, Italy, Japan, the Republic of Korea and Singapore were granted the status of Observer States at the Eighth Ministerial Meeting of the Arctic Council convened in Kiruna, the northernmost city of Sweden. This event means China will participate in the Arctic issues more actively and formally. At the same time, it shows China’s position in the legal regime governing the Arctic. Article 6 of ANNEX 2 to the Arctic Council Rules of Procedure sets up the “Criteria for admitting observers”, for which the second requirement is that the applicant “recognizes Arctic States’ sovereignty, sovereign rights and jurisdiction in the Arctic”. China has repeatedly and clearly manifested, on other occasions, its position to respect the sovereignty and sovereign rights of the Arctic States. 3.2 Delimitation of Maritime Zones and Outer Continental Shelves Delimitation of maritime zones in the Arctic Ocean is one of the preconditions for the coastal States to develop offshore natural resources. First of all, delimitation clarifies the ownership of natural resources and reduces the possibility of disputes. Next, the boundaries clarify matters of law enforcement and juris-

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diction. Due to the extreme natural conditions in the Arctic region, coastal States are inclined to adopt strict regulations regarding the offshore exploitation activities, especially on environmental matters. According to Article 193 of UNCLOS, “States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment”. The demarcation of the Russian outer continental shelf in the Arctic, and the continental shelf boundary agreements between Russia and other Arctic States will be briefly discussed below. Different from the Exclusive Economic Zone, a coastal State’s rights on its continental shelf are inherent, automatically derived from the adjacency of the continental shelf to the coastal State. All five Arctic States, which are bordering the Arctic Ocean, have extended continental shelf in that Ocean. For the outer continental shelf beyond 200nm, according to Article 76(8) of UNCLOS, the Commission on the Limits of the Continental Shelf (CLCS) will play an indispensable role. Norway has already received the recommendation of the CLCS.30 Canada and Denmark (Greenland) are also to make their submissions. The United States has yet to ratify the Convention, and there are discussions about its impact. As the United States is not a party to UNCLOS, it is not obliged to make a submission to the CLCS. Some Russian academics worry that the United States may define its outer continental shelf solely guided by the provisions of the 1958 Geneva Convention on the Continental Shelf and this will undoubtedly be controversial.31 On 20 November 2001, Russia applied to the CLCS for the limits of its outer continental shelf (Map 1). That was the first case for the CLCS to review, and the CLCS gave its recommendations to Russia on its Pacific continental shelf limit only and rejected its application for the Arctic part of the continental shelf.32 The main reasons for the rejection include: (1) CLCS refused the attached map of the seabed; (2) The location of the foot of slope was not precisely marked; 30  For Norwegian submission and CLCS’ recommendations, see http://www.un.org/depts/ los/clcs_new/submissions_files/submission_nor.htm, last accessed on 25 September 2014. 31  Valdimir Golitsyn, “Continental Shelf Claims in the Arctic Ocean: A Commentary”, The International Journal of Marine and Coastal Law, 24 (2009), p. 405. 32  For Russian submission and CLCS’ recommendations, see http://www.un.org/depts/los/ clcs_new/submissions_files/submission_rus.htm, last accessed on 25 September 2014.

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(3) Several ridges were treated as submarine elevations with insufficient scientific evidence; and (4) There were maritime boundary disputes in the Barents Sea with Norway. As the Russian 2013 Strategy suggested that Russia will make a new application, on 27 and 28 May, 2014, the Russian Ministry of Mineral Resources and Environment convened an international meeting in Saint Petersburg regarding its new application to the CLCS. This time the boundary disputes had been virtually resolved. Russia—Norway Boundary: After almost 30 years of fruitless negotiation for the expected exploitation of the huge oil field in the Barents Sea, Russia and Norway reached the necessary boundary agreement, and the agreement was ratified by both nations’ congresses in 2012. Russia—United States Boundary: The 1990 Arctic Maritime Boundary Agreement reached between the former USSR and the United States adopted the fan-shaped principle and utilized the longitude line to demarcate the boundary line between these two countries.33 Russia now insists on using the agreed line in its newly revised Arctic outer continental shelf limits application. Russia—Denmark—Canada Boundaries: For their overlapping outer continental shelf areas in the Arctic region, Denmark (Greenland) and Canada insist on the median line principle and disagree with Russia’s claimed longitude lines leading to the North Pole. Thus two overlapping areas are created. However, since these two areas are not as large as the Russia-Norway overlapping area in the Barents Sea, and oil reserves are limited in them, it is expected that these three parties could agree not to submit objections to the CLCS.34 If this were to be the case, the CLCS will review Russia’s revised application and give its recommendations according to the Rules of Procedure of the Commission on the Limits of the Continental Shelf. The final boundary delimitation will be subject to the three parties’ agreements. In short, the comprehensive Arctic continental shelf boundaries are expected to be reached and delimited in the near future. Once this is accomplished, the exploration and exploitation of the Arctic continental shelf energy resources will be in sight. 33  Cf. Mel Weber, “Defining the Outer Limits of the Continental Shelf across the Arctic Basin: The Russian Submission, States’ Rights, Boundary Delimitation and Arctic Regional Cooperation,” The International Journal of Marine and Coastal Law, 24 (2009), pp. 670–671. 34  Ibid., pp. 673–674.

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The Russian submission to the CLCS for an extended continental shelf in 2001.35

3.3 The Ice-Covered Area Nominally, there is no provision in UNCLOS that specifically regulates the Arctic Ocean. However, when we trace back to the negotiations at the Third United Nations Conference of the Law of the Sea, we will note that Article 234 entitled “Ice-Covered Areas”, directly refers to the Arctic Ocean. Article 234 reads: 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 35   Compare color figures 1 and 7 in the Partial Revised Submission of the Russian Federation to the Commission on the Limits of the Continental Shelf in Respect of the Continental Shelf of the Russian Federation in the Arctic Ocean: Executive Summary, 2015–08–03, available at http://www.un.org/Depts/los/clcs_new/submissions_files/ rus01_rev15/2015_08_03_Exec_Summary_English.pdf.

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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. (emphasis added) This article originally attempts to balance the interests of the coastal State in ice-covered areas within the limits of its Exclusive Economic Zone with the general interests of international navigation.36 Though it didn’t pay attention to the exploration and exploitation activities in the ice-covered area, for at that time the prospect of such activities in the Arctic had not come into sight, the laws and regulations of coastal States regulating the navigation would affect the exploration and exploitation activities. Some terms (such as the underlined ones) in Article 234 are a little vague. Therefore, treaty interpretation is crucial for the application of this article. According to Article 31 of the 1969 Vienna Convention on the Law of Treaties, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. In other words, the ordinary meaning of the terms, its context and the purpose of this article are important when we try to clarify the ambiguity in the “ice-covered areas” article: (1) Does “non-discriminatory” mean national treatment? Yes, non-discrimination is commonplace in UNCLOS. In light of Article 227, the environmental protection measures, including the “ice-covered areas” article, “shall not discriminate in form or in fact against vessels of any other State”. (2) As discussed above, the Arctic Five all have outer continental shelves, which extend 200 nm, i.e., the limit of the EEZ. So, can those national laws and regulations be applied to the area outside of the EEZ limits? No, in this case, Article 234 is not applicable, since the clearly defined scope of application is the EEZ. The control of vessel-source pollution in the area beyond 200 nm should be subject to global laws and regulations, including the relevant conventions of the IMO. (3) Due to global warming, the sea ice in the Arctic Ocean is diminishing. Does this situation change the status of such areas? Yes, because the purpose of Article 234 is conditional. Once the ice is thin enough to cause no 36  Shabtai Rosenne and Alexander Yankov eds., United Nations Convention on the Law of the Sea 1982: A Commentary, Volume IV, Martinus Nijhoff Publishers, 2002, p. 393.

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i­rreversible, major harm, no such status should sustain. Coastal States’ laws and regulations should be conditional as well. (4) How thin is thin enough for the EEZ ice to be neglected? For this question, as suggested by the article, the “best available scientific evidence” is important, scientific classification of the polar ice is needed. And the classification should be purpose-oriented, taking the difficulties of the polar areas’ environmental protection into consideration. 3.4 The Historic Waters Although “historic waters” as a term does not appear in UNCLOS, it has long existed as a topic in the law of the sea. The relevant terms in UNCLOS include “historic bays” (Article 10), “historic title” (Article 15), “traditional fishing rights” (Article 51), and so on. In the study titled Juridical Regime of Historic Waters including Historic Bays (a study prepared by the UN Secretariat of 1962), it was noted that “historic rights were claimed not only in respect of bays but also in respect of other maritime areas”, and the regime of historic waters is viewed as “the exception to the general rules of international law governing the delimitation of the maritime domain of a State”.37 Among the Arctic Five, Canada and Russia claimed historic waters. The Canadian historic waters claim is closely related to the status of its Arctic Archipelago; the water area enclosed by the straight baselines around the Arctic Archipelago was claimed by the Canadian government as “historic internal waters” in 1985.38 The Russian historic waters have been claimed since the Soviet era. In the final part of the 1985 Decree “On the Confirmation of a List of Geographic Co-ordinates Determining the Position of the Baseline in the Arctic Ocean, the Baltic Sea and Black Sea From Which the Width of the Territorial Waters, Economic Zone and Continental Shelf is Measured”, the White Sea, Cheshskaia Bay in the Barents Sea, and Baidaratskaia Bay in the Kara Sea are claimed as historic waters. The Russian Federation adopted its own law On the State Boundary of the Russian Federation in 1993, in which Article 5(4)(g) 37  “Juridical Regime of Historic Waters Including Historic Bays (Document: A/CN.4/143),” Yearbook of the International Law Commission, 1962, Vol. II, p. 2, 7. 38  Statement in the House of Commons by Secretary of State for External Affairs, Jeo Clark, Canada, House of Commons, Debates, 6462–6464, 10 Sept. 1985, Reproduced in Dep’t of External Affairs, Statement Series 85/49 and in 24 Canadian Yearbook of International Law 416–420 (1986).

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­ entioned the “historic waters”, but it has not yet clarified the boundary line m and legal status of its claimed historic waters.39 As an exception to the general rules, the regime of historic waters should be flexible, as there are different kinds of historic waters: (1) The Canadian historic waters are claimed as internal waters. One of the strong reasons is that the ice-covered areas can be view as “quasi-land”. Other arguments include historic title, exclusive use and so on. The situation of Russia’s historic waters is quite similar to that of Canada but Russia should clarify the boundary and legal status of its claimed historic waters. The rights and duties of coastal and other States need further definition, which is important for the energy resource issues discussed in this article. (2) Tonga’s historic waters in the Pacific Ocean are claimed as territorial waters. In 1887, Tonga issued a territorial claim to all the islands, rocks, reefs, foreshores and waters lying between 15° and 23° 30′ south latitude, and between 177° and 173° west longitude. In 1973, Tonga claimed this rectangle as its territorial water.40 Moreover, in the partial submission on its outer continental shelf, submitted in May 2009, Tonga tried to assert “consistency between its claim of historic title made by means of the Royal Proclamation of 24 August, 1887 and its maritime jurisdiction as established in the United Nations Convention on the Law of the Sea”.41 (3) The Chinese historic waters in the U-Shape Line in the South China Sea are neither internal waters nor territorial sea. The privileges enjoyed by China in the U-Shape Line are based on historic rights and titles which are supported by UNCLOS, and also based on historical evidence.42

39  Leonid Tymchenko,” The Northern Sea Route: Russian Management and Jurisdiction over Navigation in Arctic Seas”, in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, Alex G. Oude Elferink (eds.), Donald R. Rothwll, Kluwer Law International, 2001, p. 281. 40  Shery Broder and Jon Van Dyke, “Ocean Boundaries in the South Pacific,” University of Hawaii Law Review, 1982, vol. 4, pp. 9–11. 41  For this submission, see http://www.un.org/depts/los/clcs_new/submissions_files/ton46_ 09/ton2009executive_summary.pdf, last accessed on 25 September 2014. 42  Cf. FU Kuen-chen, Legal Status of the South (China) Sea (in Chinese), 123 Information Ltd, 1995.

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3.5 A Semi-Enclosed “Ocean”? With the sea ice melting, the Arctic region, which used to be covered by the “quasi-land” ice, now appears as a semi-enclosed ocean with only two narrow outlets. UNCLOS Part IX sets up a regime for “enclosed or semi-enclosed seas” in order to promote regional co-operation. The two articles read as follows: Article 122 Definition For the purposes of this Convention, “enclosed or semi-enclosed sea” means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States. Article 123 Cooperation of States bordering enclosed or semi-enclosed seas States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article. Is the Arctic Ocean a legal “semi-enclosed sea”? According to the definition in Article 122, which focuses on “gulf, basin or sea”, it is not. The Arctic Ocean is five times larger than the Mediterranean, which is considered a typical and important semi-enclosed sea. With respect to the special circumstances of the Arctic Ocean, regional cooperation, such as provided in Article 123, is important for Arctic governance. And there already is an international organization, i.e. the Arctic Council, working on issues such as sustainable development and environmental protection. Besides, the Arctic Economic Council which

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endeavors to promote business development and cooperation in the Arctic was established on 3 September 2014. It is natural that, like all semi-enclosed seas, States in the Arctic region will become concerned with the states outside the region, and the outside states will assert their interests in the region.43 For the purpose of this article, we suggest that Chinese decision makers and companies should pay attention to the development of Arctic regionalization. 4 Conclusion To conclude, there are opportunities for Chinese companies to take part in the development of the oil and gas reserves in the Arctic region. It is good for China to diversify its sources of oil and gas to safely sustain its economic growth. Also, it will help Russia to realize the goals pointed out in its Arctic strategies. With due regard to the sovereignty and sovereign rights of the Arctic States, China (together with Korea and Japan) have real reasons to improve their relationships with the Arctic States, particularly with neighboring Russia. General development of the hydrocarbon-driven economy in the Arctic is an ‘Arctic paradox’, whereby an increased utilization of offshore hydrocarbons and better access to resources will contribute to climate change, and has to be handled with care. While Arctic continental shelf exploitation is approaching, in the regional organizations such as the Arctic Council, more attention should be given to the voices from the non-Arctic States.

43  Cf. David D. Caron, “Climate Change and Arctic Governance: Three Images of a Changing Arctic,” in The World Ocean in Globalisation, Davor Vidas and Peter Johan Schei (eds.), Martinus Nijhoff Publishers, 2011, pp. 159–161.

CHAPTER 8

A Sustainable Approach to the Arctic Erik Haaland1 Abstract Presents an overview of Statoil’s strategies and approaches to developing gas and oil resources in the Arctic. The Arctic environment involves complex and difficult challenges. Collaboration is a key tool for enabling development. Examples of successful collaboration are the Arctic Response Technology Joint Industry Programme, the Snøhvit project in Norway, and a collaborative programme in the Barents Sea.

It’s been an interesting few years for the oil and gas industry. Many deals have been done, new areas have been opened and discoveries have been made. The whole industry is positioning itself for the future. We are dealing with complex regulatory and stakeholder concerns. A technology push is happening to enable us to develop Arctic resources, safely and economically. There is pressure from shareholders to increase returns and the geopolitical landscape is changing. We see that development in the Arctic is going slower than most of us would have thought only a short time ago. And this might be a good thing. Despite this slowdown in activity in parts of the Arctic we’re far from being at a standstill: New nations were given observer status in the Arctic Council—truly showing the global interest in the Arctic. Climate change and reports of melting polar ice continue to fill the media and the political debate. This has, and will have, an impact on our industry as governments provide the framework under which we operate.

1  Erik Haaland is the Leader of Non-Technical Risk Management in Statoil’s Arctic Unit, covering stakeholder engagement, policy, communication and issue management across Statoil’s Arctic portfolio. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/ bergen-haaland.pdf

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There Is Not Just One Arctic

Before going into more detail about what Statoil is doing some common misunderstandings need clearing up. It is important to note that there is more than one Arctic environment. Statoil divides the Arctic into three different operational areas or categories: First we have the workable Arctic: the workable Arctic is typically areas with little or no sea ice and/or limited icebergs, or alternatively very shallow areas where ice resistant platforms are feasible. This means we have solutions that can be carried out based on today’s energy. There are remaining challenges and technology needs, but these can likely be solved within the short to medium term and without radical innovation. Statoil assets in the workable Arctic include the opened part of the Norwegian Barents Sea. Next we have the stretch Arctic: the stretch Arctic is typically areas with significant ice that inhibits operations from floating structures, or very cold and remote areas that are ice bound for much of the year. This means that we can visualize how exploration and development is likely to take place, but we are some way from finalizing key technologies or capabilities needed for commercial feasibility. Solutions will need significant focus and investment to be available in the medium to long term. Northwest Greenland is a good example of this category. Finally, we have the extreme Arctic: the extreme Arctic is typically areas with near continuous heavy ice coverage from the Arctic Ocean, likely containing old or glacial ice. This is where solutions are hard to visualize and need long term focus and investment in technology. In Statoil’s portfolio East Greenland would fit into this category. Dividing the Arctic in three categories helps us explain to stakeholders the diversity of the Arctic and also supports us in risk identification and management. With this in mind and the challenges we face in the Arctic you might ask why an industry like ours is still willing to take on this large task. The answer is twofold. Statoil is working across the Arctic because we believe its resources will be a critical source of energy for a growing world. Economic growth and rising standards of living will result in a more than 30 per cent increase in global energy demand over the next 30 years. Bringing millions of people out of poverty is a massive task and energy is one of the elements needed. In order to replace existing production and meet increases in future demand, the world will need an “all of the above” energy strategy—one that includes the Arctic offshore resources.

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The Demand for Energy

It’s not only a question of filling an increasing demand. Most of the fields that will produce in 2030 and 2040 have not yet been discovered. In fact, we have been producing more oil than we have discovered every year since the early 1980s, and this year looks to be the worst one since the 1950s. It is a huge task for our industry to fill the gap that is certain to appear. And the reason why we look to the Arctic to fill this gap is because we see great resource potential in the region. Preliminary studies suggest that the Arctic offshore contains 22% of conventional yet-to-find oil and gas resources. And yet, the Arctic continental shelf contains some of the least explored basins on earth. Why then are we willing to take on this challenge and develop Arctic resources? It is quite simple: The world needs more energy. The industry struggles to replace existing production and makes fewer and smaller discoveries. Halfway through 2014 the industry discovered 6.2 billion barrels of oil equivalents according to IHS, which is roughly a third of what has been produced the same year. This is a trend and it is not sustainable. That is why Statoil is looking towards the Arctic. The large resource potential is the driver for our positioning in the Arctic. Having a portfolio of assets in different stages of maturity enables us to leverage experiences from our current operations and implement them in future projects. Building step by step gives us a robust foundation and increases the probability of success. We can talk all day about the prospectivity and potential of the Arctic, but let us not forget that there are challenges, too. Even after having worked for 40 years in harsh environments we see that we have to be especially vigilant when moving into new Arctic areas. Climatic conditions are probably the most visible challenge. Ice, snow, cold and darkness all contribute to an environment that can be both hostile and beautiful at the same time. Understanding this and implementing appropriate mitigating actions is key to our work. The next challenge, health and safety, is mainly about protecting our people. To have the right rigs, equipment and clothing is essential to allow our people to perform. Also, we need to factor in the challenges of working in darkness half the year. As with everywhere else we aim for zero harm to the environment. In the Arctic this is really put to the test. Therefore, we must use f­ itfor-purpose solutions to protect the environment. Finally, we need to address the issue of remoteness. This is a key challenge and a major cost driver. Being far—and sometimes very far—from ­infrastructure, means that we have to bring all the equipment we need with us. Many times, we have to start from scratch. Therefore, we need an overall

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strategy on how to explore and develop our Arctic basins in a safe, sustainable and cost-effective manner. The core element in this strategy is the so called stepwise approach. We will always take the experiences and lessons from previous operations and implement them in future activity. And we will not move faster than technology will allow us to do. On average Arctic projects take over 20 years from discovery to production. This means our planning has to be very long-term, and that we are depending on predictable markets. When we say this is a marathon, we truly mean it. The discoveries we make today can take a very long time to get into production, and will last for decades beyond that. Our time horizon is therefore many decades into the future. Policy and strategic choices made by regulators and governments also has to reflect this. 3

Collaboration Is Key

One way of enabling development is collaboration. Collaboration is a nice word to use, but it isn’t worth much unless you put it into practice. Let me now share with you three concrete examples. First is the Arctic Response Technology Joint Industry Programme (JIP). Here nine major oil companies have joined forces to further build on existing research and improve the technologies and methodologies for Arctic oil spill response. The goal of the JIP is to advance Arctic oil spill response strategies and equipment as well as to increase understanding of the potential impacts of oil on the Arctic marine environment. We get more out of our money by joining up in a programme like this, and we are also able to tap into the most skilled people that each company has available. Second is our own experience from the Snøhvit project in northern Norway. Snøhvit is Statoil’s first LNG facility, and the northernmost such production plant in Europe. Snøhvit annually stores a volume of carbon dioxide equivalent to the emissions of 280,000 vehicles. It is also a project that shows how our industry can provide jobs and activity to revitalize a community. In fact, Statoil contributes over 19 million euros to Hammerfest County every year in taxes. This is money that benefits the people of Hammerfest. My third example illustrates new ways of working. In 2011 Norway and Russia agreed on the border in the Barents Sea. This opened up new areas for exploration and in 2013 the Norwegian government officially opened the Southeastern Barents Sea for petroleum activity. To acquire high-quality

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data in an efficient and low impact way Statoil was asked to be the operator for the seismic acquisition in the area. Thirty three companies have so far joined the programme and we finished the acquisition without incidents and with high-quality data collected. A key benefit of this joint acquisition is the reduced impact on fisheries in the area. An added benefit is significantly reduced costs to all participants. These are three examples of how Statoil concretely works on collaborative measures in the Arctic, with partners, suppliers and communities. To sum up: There is not just one Arctic. The Arctic is very diverse in terms of challenges and opportunities and we have to plan accordingly. Collaboration will be essential to succeed in unlocking its potential, managing the risks and creating good value propositions. We need to get and maintain our license to operate. Our license to operate is built on trust and above ground risks are more relevant than ever before.

CHAPTER 9

Environmental Aspects of Hydrocarbon Exploration in the Arctic Stephen A. Macko1 Abstract Together with increasing global population comes a heightened demand for increased energy resources. New technologies for energy acquisition and sustainable energy production are rapidly growing and fulfilling part of this need. However, despite increased capacity from those renewable energy resources as well as increased efficiency in utilization, fossil fuels, notably coal, natural gas and oil, remain a reasonably inexpensive resource for providing most present needs and are expected to remain so for the foreseeable future. Oil demand alone is expected to grow by one to two percent per year for decades. As a result, continued exploration for petroleum in new regions of the planet is increasingly occurring. While advanced technologies are being vigorously pursued to allow for drilling offshore in deeper ocean waters, an alternate novel location for exploration and production is the Arctic. The Arctic includes 25 geologically defined regions that may contain up to 100 billion barrels of oil and trillions of cubic feet of natural gas, some in the form of gas hydrates. These resources may represent the largest of the world’s remaining untapped gas reserves and much of the undeveloped oil reserves. A significant portion of these reserves lie offshore on the shallow continental shelves of the Arctic, while a portion is suspected to exist in deeper waters. With global warming and diminishing sea ice in the Arctic, new avenues will open for exploration beyond the developing sea lanes which are more economical and more energetically efficient for transport. These reserves, when accessed, will have implications for the global climate, and for the environmental health of the Arctic environment. Oil spills, whether from leakage, accidental blowouts, or shipping will pose a tremendous risk to Arctic ecosystems. The Arctic is characterized by a short productive season, low temperatures, high energy storms and limited sunlight. As a result, it could take many decades for Arctic regions 1  Professor, Department of Environmental Sciences, University of Virginia, Charlottesville, VA. Email: [email protected]. The author’s PowerPoint is available at http://www

.virginia.edu/colp/pdf/bergen-macko.pdf

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to recover from habitat disruption, tundra disturbance and oil spills. Marine ecosystems are particularly vulnerable. There is a need for critical advance planning and preparation before further exploration of the Arctic occurs. There is no proven effective method for containing and cleaning up an oil spill in ice-covered/icy waters. Prevention at all costs, beyond that which is in place in present operations, is a prerequisite. The impact of an oil spill on fisheries and threatened mammal populations is presently incalculable. Development and use of Arctic-class ice-resistant oil rigs will be required. Drilling secondary pressure relief wells may be deemed necessary given the remote location and potential inability to address the urgency of an accident. The difficult conditions of the Arctic, and its distance from where response capacity is stationed mean it could take days or weeks to respond to a spill, even during ice-free periods, if at all possible. Standard clean-up technologies, including booms and surfactants, will likely not be usable for at least a portion of the time the well would be drilled or operating, or in the event of an accident. The behavior of materials like Corexit on ice or in water with pack ice is essentially unknown. Lack of cautious application of new technologies and oversight has led to increasing levels of pollutants, sometimes catastrophically, as was evidenced in the recent 2010 Deepwater Horizon oil spill in the Gulf of Mexico. As a consequence of increased fossil fuel exploration, extraction and transport, the risk of contamination has heightened. At present, only minimal preparation for impact and cleanup exists for this eventuality in fragile Arctic environments. Only through an appreciation for the past, in more forgiving locations, and a comprehensive understanding of the present fragility of the Arctic, can we anticipate the future. The potential for that vision of the ocean lies with cooperation among all nations.

1 Introduction Climatic conditions in the Arctic are changing faster than at any time in the past 10,000 years. With increases in global temperatures and loss of sea ice, certain modifications in the Arctic can be predicted along with their expected influences. Clearly, a potential exists for benefits in certain economic sectors. For example, less ice cover will certainly increase access to regions that have yet to be explored for hydrocarbons and other minerals. The lessening of sea ice will also allow increased avenues for maritime transport between the Atlantic and Pacific through the Northwest Passage saving time and expense for international trade, although many issues involved with such passage presently remain to be resolved (Figure 9.1). Additionally, with increases in open

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FIGURE 9.1 Exclusive Economic Zones of the Arctic overlain on the minimum ice coverage (summer, 2012). [For color version, please see Internet Resource 9.] FIGURE COURTESY PEW FOUNDATION.

water, the prospects for economic gain through enhanced tourism in the Arctic are clear. Furthermore, with increases in transport and tourism come greater potential risks for introduction of environmental contaminants through shipping accidents or leakage from vessels. The first person to lead an expedition through the Northwest Passage, Norwegian explorer Roald Amundsen (1903– 1906), suggested that expeditions were “adventures” as a result of bad planning. Without proper preparation for accidents, and the resulting spillage of hydrocarbons during transit across the ice free Arctic Ocean, it should be expected that we will experience unwanted adventures in the Arctic environ-

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TABLE 9.1  Arctic Hydrocarbon Resources (data from USGS)

Perhaps 100 billion barrels of oil and oil equivalent 13% of world’s undiscovered oil 30% of world’s undiscovered gas 84% is offshore, shallow deposits In the US EEZ: 30 billion barrels of oil Over 100 trillion cubic feet gas

• • • • •

ment. The Arctic is remote, extreme, and vulnerable. However, to achieve the balance between responsible development and protection of the Arctic ecosystem, it is of utmost importance that necessary protections be established before exploratory drilling is allowed and that they are adhered to once post exploration activities begin. The world’s population, presently at about seven billion, will continue to grow with some predictions reaching 10 billion around the mid-21st century. There will continue to be a growing demand for energy, and despite the fact that novel and renewable energy resources are being developed, those resources are not expected to surpass fossil fuel alternatives for quite some time. With the continued quest for petroleum and its transport, major accidents from exploration and production of reserves, like the Ixtoc and Deepwater Horizon well failures, or the Exxon Valdez accident, will continue to occur. 2

Hydrocarbon Exploration in the Arctic

With the delineation of territorial limits in the Arctic, exploration for petroleum reserves and the eventual exploitation of the hydrocarbon resources it contains will occur. The Arctic may contain 30% of the undiscovered oil reserves on Earth (Table 9.1), with estimates of more than 100 billion barrels of oil in the region and 100s of trillions of cubic feet of natural gas (Figure 9.2). A large portion of this reserve lies within the Exclusive Economic Zone of the United States, in offshore shallow water coastal deposits. Impacts of the accidental release of oil during exploration, production or transport in the region, and necessary subsequent cleanup would have a serious impact on the ecosystem of the Arctic itself and are presently not established. The scope of feedback from the Arctic to the global environment needs to be

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FIGURE 9.2 Potential hydrocarbon resources of the Arctic. The map shows the different gas, oil and mining resources in the Arctic. The map also displays the retreat of ice cover of the Polar Sea during the last decade without indicators of a halt which will influence accessibility to mineral and energy resources both on land and on the Continental Shelf in the future. The map also shows potential and existing sites of mineral and energy resources in the Arctic region. [For color version see Internet Resource 5.] (FIGURE COURTESY NORDREGIO, DATA COMPILATION OF VARIOUS SOURCES LISTED.)

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delineated. The Arctic is especially vulnerable and understudied, owing to the great effort, expense and difficulty of obtaining a sufficient data set on any proc­ess or problems in this location. There is a clear need for additional research in a region where resource management is already complex. With expansion of exploration and production of petroleum in the Arctic, the potential for accidental releases of hydrocarbons from ships, drill rigs, and pipelines will increase. Compounded by ice cover, there are no simple solutions to cleanup and management of such releases, with the possibility that the spilled residue will remain in the environment for many decades. Oil from the shipping accident involving the Exxon Valdez in March 1989, 25 years ago at this writing, in Alaskan coastal waters, can still be observed in sediments of the region, and numerous populations of affected organisms still have not recovered from that relatively small release of 11 million gallons of crude oil. Accidental releases will happen. More recently, in August, 2006, operations by BP in Prudhoe Bay, Alaska, were halted owing to corrosion in pipelines leading up to the Alaska Pipeline. Up to 267,000 gallons of oil were released onto the North Slope of Alaska. Failure of the transport conduit caused leakage in the pipeline and resulted in a multiple day spillage. Sediment had collected in the bottom of the pipeline, thus protecting the corrosive bacteria from the bactericides added to the transported fluid in the pipeline. Along with the oil that was released there was also substantial snow and gravel that required containment and cleanup. Only about 30% of the spilled oil was actually recovered along with 4,000 m3 of contaminated snow and 250 m3 of gravel. What became clear was the difficulty in containing and eventually remediating even such a small spill in an area that can have unforgiving weather, along with substantial impediments to the cleanup in snow and ice. While this 2006 spill should have suggested a need for greater caution, a subsequent spill of a similar nature by BP occurred in 2009 with approximately 14,000 gallons leaking from a pipeline, covering not only tundra but also entering wetlands along Prudhoe Bay. The 2009 spill vividly demonstrates that BP has not adequately addressed the management and environmental compliance problems that have plagued it for many years. (The) rupture was the result of a predictable and preventable freezing of produced water within the pipeline that caused the pipe to over-pressurize and burst. Eerily similar to the 2006 spill, BP ignored alarms that warned of the pipe’s eventual rupture and leak. (Quoted from U.S. Government court filing on the 2009 event.)

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A larger catastrophic release of petroleum over Arctic waters, from drilling operations, production or transport, in a zone at least seasonally covered by ice, influenced by harsh, unpredictable weather patterns, is unthinkable. We are at present unprepared for this eventuality. Furthermore, it may not be possible to adequately prepare for it. Presently, seasonal exploration is proposed for Arctic offshore drilling operations, accessing potential hydrocarbon reservoirs. With anticipation for the end of the drilling season, there needs to be inclusion into the drilling timetable periods during which a response to a spill can be put in place for cleanup under harsh Arctic weather conditions. This period should include the time required for the transit of materials, ships and personnel to the site in order to control the leakage and potentially to even drill a relief well, as was required in the Deepwater Horizon disaster, intercepting the well and controlling or stopping the flow before approaching winter conditions return, making remediating the accident impossible. Vessels operating in the Arctic (tankers, container ships, and tour boats), drilling rigs, and support facilities need to be built so that they can withstand crushing forces of ice and extremely harsh ocean conditions. These operations need to be certified that they are 100 percent complete before being allowed to operate in the region. Equipment and materials that would be required to control a well during a spill, including relief rigs, booms and other containment systems, should be identified and sufficiently robust for Arctic conditions. Presently much of this type of equipment is designed for use under temperate weather conditions. Ice is a real problem. The behavior and successful application of most of the presently utilized methods for spill isolation and cleanup remain untested under ice conditions. These methods and equipment may need to be employed in areas that include nesting grounds for millions of migratory birds and habitats of threatened marine mammals along sensitive shorelines. This specially developed equipment has to be placed in locations across the Arctic region, and personnel need to be identified who could deploy and operate it. While there is growing discussion among Arctic nations for cooperation in responding to the eventuality of an accidental oil release, presently there exists inadequate local infrastructure in the Arctic for implementing a response, if any at all. The nearest American Coast Guard base that could respond with aircraft to an event off of northern Alaska is in Kodiak, AK, nearly 1,000 air miles away from the US EEZ on the North Slope. The nearest port for support from ships or a rescue drill rig is in Dutch Harbor, AK, over 1,000 miles from possible drilling locations in US waters of the Arctic Ocean. Sailing transit time

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from this location to the site of the accident would be appreciable. There is a need for an international action plan on mitigation measures. Of course, the best plan is prevention in the first place, at all costs. An important and yet perhaps obviously apparent and simple approach for preparation for an accident is building redundancy into any operation. The best solution to a potential oil spill is to avoid one at all costs; there needs to be equipment on location should a failure or blowout happen as occurred in the Deepwater Horizon and Ixtoc disasters. Functional backup blowout preventers, capable of being operated remotely, have to be included in any planned response. Rapidly changing weather could create difficult air or sea conditions making access to the site of a drilling rig accident impossible. Any leases awarded must have an environmental impact statement for drilling that ensures the marine ecosystem is protected. Procedures must be developed and adhered to in such a leasing program. Environmental impact statements and assessments on proposed projects should also be included. Oversight and approval of exploration, development, and production plans by domestic organizations, and ideally an international agency, need to be established. There is a clear need for international cooperation to establish standards for operations, approvals of plans and EIS, and paths for response (Berkman and Young, 2009) with clear lines of responsibility among the different companies involved in any operation. The search for oil is reaching into ever more remote corners of the world. Diminishing sea ice has opened Arctic waters to increased industrial activities. There are new challenges and risks in the Arctic. This environment is one of the most remote and harshest on the planet. The Arctic Ocean is in near complete darkness for one quarter of the year and is ice-covered for three quarters of the year. In the summer, while the sea ice (Figure 9.1) has receded, the Arctic still can have dangerously high seas, gale force winds, below freezing temperatures and dense fogs while floating ice and icebergs remain. Oil spilled in Arctic waters would be particularly difficult to remove. Current technology has not been proved to effectively clean up oil when mixed with ice or when trapped under ice. An oil spill would have a profoundly adverse impact on the rich and complex ecosystem found nowhere else in the United States. As there is increased desire to explore this particularly fragile and unique environment for oil, recognition must be made that the contingencies for an accident that have been established in more temperate and perhaps forgiving locations like the Gulf of Mexico would underestimate the needed resources and complexities of similar catastrophes occurring in the Arctic (Table 9.2). Should a catastrophe occur in the Arctic US EEZ that was similar in scope to

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TABLE 9.2  Comparison of resources utilized and impacts of the Exxon Valdez and the BP Deepwater Horizon spills; potential with Shell Kulluk grounding.

Exxon Valdez tanker, March 24, 1989 Prince William Sound, Alaska 11 million gallons of oil on the surface 11,000 square miles size of impact 10,000 cleanup workers utilized 1,000 vessels involved in cleanup 1,300 miles of coast affected 250,000 seabird mortalities 900 eagle mortalities 2800 otter mortalities 300 harbor seal mortalities 22 Orca whale mortalities No Corexit used; steam cleaning of coastal zones BP Deepwater Horizon drill rig, April 20, 2010 Macondo Wellsite Northern Gulf of Mexico 205 million gallons of oil released at 1500m water depth 90,000 square miles size of impact 47,000 cleanup workers utilized 10,000 vessels involved in cleanup 16,000 miles of coast affected Number of affected animals still unknown 600 sea turtle mortalities More than 7000 bird mortalities  Estimated 2 million gallons of Corexit used (20% of the volume of the Valdez spill) Shell Kulluk drill rig, December 27, 2012 Dutch Harbor, Sitkalidak Isl. AK On board 139,000 gallons of fuel oil plus 12,000 gallons of hydraulic fluid Perhaps 316 gallons released

• • • • • • • • • • • • • • • • •

•

• •

• •

the Deepwater Horizon rig blowout, the surface coverage of the oil would likely be immense. A perspective of the enormity of such a spill can be approximated. If one takes an area similar to the size of the zone closed to fisheries in the Gulf of Mexico during the height of the BP event (data taken from NOAA coordinates of the surface coverage), and placed that region of surface contamination on the coast of the north slope of Alaska, it would occupy essentially the entire US EEZ in the Arctic Ocean (Figure 9.3). The Arctic has neither

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FIGURE 9.3

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The size of the closed fishery area (light purple), from the BP Deepwater Horizon Oil Spill, Gulf of Mexico, superimposed on the US EEZ (red line north of Alaska). The extent of surface oil from the BP Deepwater Horizon oil spill (gray center on light purple area) is depicted in the closed fishery area. (GIS OVERLAY COURTESY OF MATTHEW O’CONNELL, UNIVERSITY OF VIRGINIA, OF DATA FROM NOAA).

the resources nor the window of time available for addressing a spill the size of the Deepwater Horizon. Should an accident occur late in the summer drilling season, an environmental rescue similar in scope to that accomplished in the Gulf of Mexico (the five month time period from blowout, April 20, 2010, to being declared “effectively dead” on September 19, 2010, the requisite additional relief wells and logistical support, Table 9.2) while battling approaching winter storms and advancing ice would be difficult at best.

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Incident of the Shell Rig Kulluk Grounded Off of Kodiak Archipelago with 150,000 Gallons of Diesel, March 2013 The Kulluk drilling rig was owned by Shell and had been ice strengthened and retrofitted for drilling in the Arctic at a cost of nearly $300 million dollars. It was designed to operate in the harsh conditions of the Arctic weather and seas. Curiously, it does not have its own propulsion system and because of that it must rely on being towed to a location for drilling. An extremely powerful new tow ship, the Aiviq, was assigned to take the Kulluk to the explorative drilling locations. A crisis aboard the Kulluk began during an effort to tow the rig from Alaska to a shipyard in Seattle for maintenance. In heavy seas the towing vessel lost power to its main propulsion engines about 50 miles off the coast of Kodiak Island. The crew managed to avoid significant drift and restored partial engine power to the Aiviq, and requested assistance from nearby vessels. However, the Kulluk, broke free and ran aground. The Kulluk crew members abandoned the rig, and were rescued by US Coast Guard helicopters, requiring an operation in seas that were over 18 feet in height and with winds over 50 mph. The Kulluk grounded and was seriously damaged. Later in March, 2013, the rig was reboarded and eventually loaded onto a transport ship and sent to Asia for repairs. Fortunately, there was no evidence of significant leakage into Alaskan waters of the 150,000 gallons of diesel contained on the rig (Table 9.2). The Coast Guard concluded that Shell inadequately assessed and managed the risks of towing the Kulluk. This incident, however, makes clear both the harsh and rapidly changing conditions of the Arctic, and the difficulty of operations there. It also demonstrated how problematic containment of any spill would be, even a small one. 2.1

3

The Challenges of an Oil Spill in an Ice Covered Ocean

• It is clear that one of the biggest challenges in the area is the ice that covers the Arctic; • The ice gets into the booms and fills them so oil cannot be captured; • The oil gets in under the ice and makes it difficult to find; • There is a lack of knowledge and technology for cleanup when ice is covered in oil; • The weather conditions may make it difficult for staff to be on site; • Other standard cleanup methods will not work under Arctic Ocean conditions of subfreezing temperatures and ice cover; • The effective use of dispersants like Corexit is essentially unknown. If the oil lies under the ice, application will be impossible; and

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• The standard method of burning floating oil will perhaps be impossible

under ice conditions, and cold temperatures. Required minimums for surface thickness of about two mm to have successful combustion may not be attainable.

4

Suggested Standards for Operation in the Arctic and What Preventative Measures Need to be in Place

Verification of drilling readiness is necessary. When the drill rig Prirazlomnaya was placed in the Barents Sea in 2011, subcontractors were quoted in the press as stating that it was “94.2 percent ready.” However, other sources involved in the construction suggested that the platform was no more than 50 percent ready. Gazprom did not release the safety documentation, its environmental impact assessment or the oil spill response plan for the project. Arctic offshore drilling should not be approved until a number of outstanding issues are addressed. Arctic standards for safety, oil spill prevention, and response must be in place. There is a need for industry and government agencies to enact better management practices to avoid the drilling problems and accidents of the past. There is also a need for completed environmental impact statements to ensure the protection of the Arctic marine ecosystem. Arcticspecific safety standards and a plan for dealing with a spill are critical. 5 Conclusion Sufficient planning and preparedness is needed to minimize the adverse effects of an (eventual) oil spill resulting from offshore oil exploration, production and transport in the Arctic Ocean. We cannot depend on luck and we certainly do not need an adventure. Only through an appreciation of the past, with information acquired in more forgiving locations and conditions, and a comprehensive understanding of the present, fragile Arctic can we anticipate and protect the future. References ACIA (2004). Impacts of a Warming Climate: Arctic Climate Impact Assessment. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. Berkman, P.A. and Young, O.R. (2009). “Governance and Environmental Change in the Arctic Ocean.” Science 324: 339–340.

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Bird, Kenneth J., Charpentier, Ronald R., Gautier, Donald L., Houseknecht, David W., Klett, Timothy R., Pitman, Janet K., Moore, Thomas E., Schenk, Christopher J., Tennyson, Marilyn E. and Wandrey, Craig J. (2008). Circum-Arctic Resource Appraisal; Estimates of Undiscovered Oil and Gas North of the Arctic Circle, U.S. Geological Survey Fact Sheet 2008–3049, 4 p. Buffett, B. and Archer, D. (2004). “Global Inventory of Methane Clathrate: Sensitivity to Changes in the Deep Ocean.” Earth and Planetary Sci. Lett. 227: 185–199. Intergovernmental Panel on Climate Change (2012). Fifth Assessment Report: Climate Change, 2012. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. National Academy of Sciences (2008). The Ecological Impacts of Climate Change. NAS, Washington, DC, 28p. National Academy of Sciences (2008). Understanding Climate Change. Washington, DC, 26p. Stroeve, J.C., Serreze, M.C., Holland, M.M., Kay, J.E., Malanik, J., & Barrett, A.P. (2012). “The Arctic’s Rapidly Shrinking Sea Ice Cover: a Research Synthesis.” Climatic Change, 110(3–4), 1005–1027.

Internet Resources http://www.amap.no/acia/index.html http://www.crrc.unh.edu/workshops/arctic_spill_summit/index.htm www.afsc.noaa.gov http://www.globec.org/ http://pubs.usgs.gov/fs/2008/3049/ http://www.nordregio.se/en/Maps—Graphs/05-Environment-and-energy/ Resources-in-the-Arctic1/ http://www.nordregio.se/en/System/News/New-perspectives-on-development-inthe-Arctic/ http://dels.nas.edu/Report/Responding-Spills/18625 http:/esa.un.org/unpd/wpp/index.htm http://www.pewtrusts.org/en/research-and-analysis/reports/2013/09/23/ arctic-standards-recommendations-on-oil-spill-prevention-response-and-safety http://www.pewtrusts.org/en/research-and-analysis/reports/2013/09/23/ arctic-standards-recommendations-on-oil-spill-prevention-response-and-safety

Part 3 Arctic Shipping

∵

CHAPTER 10

Arctic Shipping—Still Icy Knut Einar Skodvin* Abstract Arctic waters have always been inhospitable for surface navigation. In recent years, a marked decline in sea ice has however meant that they have become, if not hospitable, at least more accessible. Increasingly larger areas are ice-free longer and thick multiyear ice is retreating, being replaced by thinner first-year ice that can be broken by icebreaking vessels. The prospect of increased shipping in Arctic waters has been met with equal amounts of excitement and trepidation. On the one hand, there is the offer of wholly new shipping routes, which may offer significant savings. Reduction in sea ice also means that new carbon-based resources become accessible, and can be brought to market efficiently. On the other hand, the ecosystems of the Arctic are particularly vulnerable to operational and accidental pollution resulting from shipping. Arctic conditions also entail increased risk of accidents, and pose increased risks to health and safety when accidents do occur. The effect of retracting sea ice on actual shipping numbers has thus far been limited, but within the legal community the possibilities and challenges posed by Arctic navigation have been discussed for some time. Significant work has also been undertaken, both in regards to establishing a binding polar code enhancing safety and environmental protection, and to the development of the Arctic Search and Rescue Agreement. The present paper aims to comment on some developments in the natural and legal environment for shipping in and through Arctic waters.

* Knut Einar Skodvin defended his PhD thesis on the freedom of navigation in the EEZ in 2013 at the faculty of law, University of Bergen. After an interim appointment with the Court of first instance in Bergen he returned to the faculty in Bergen as an associate professor. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/bergenskodvin.pdf.

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1 Introduction For a number of years the possibility of shipping through Arctic waters has been a concern for scholars and practitioners alike. Indeed the subject has been on the agenda of the Center for Oceans Law and Policy for quite some time, with the 2009 conference held specifically on the “Changes in the Arctic Environment and the Law of the Sea”.1 Interest in the challenges posed by a changing, and more accessible, Arctic has not waned over the years, and has continued to be a much discussed issue. Rather than revisiting these prior discussions this paper aims to comment on some developments. The focus will be primarily on developments in ice coverage and usage of the Arctic, before some brief comments are offered on some legal questions. 2

Access and Use

In 2014, the maximum sea ice extent was, as usual, reached in March, with an average sea ice extent of 14.8 million square kilometers—an ice coverage certainly not inviting for navigation. While the ice coverage seems extensive, February through early March saw the remaining ice about two standard deviations below the long term average, with a rapid expansion in mid-March that brought the ice extent to within one standard deviation of the long term average. And although the area covered by ice is extensive, it was the fifth lowest on record, with the period of recording going back to 1978.2 The picture is very different is if we move to September, the month which traditionally has the least ice coverage. In 2014, the minimum ice coverage was reached on 17 September, when the ice covered some 5.02 million square kilometers. The area covered by the ice was some 1.6 million square kilometers larger than the minimum extent measured on 12 September 2012, but remained

1  See Myron H. Nordquist, John Norton Moore, and Thomas H. Heidar, eds., Changes in the Arctic Environment and the Law of the Sea (Leiden: Martinus Nijhoff Publishers, 2010). The focus has since been retained, see inter alia several pieces in Myron Nordquist et al., The Law of the Sea Convention US Accession and Globalization (Martinus Nijhoff Publishers, 2012). 2  Ice coverage as published on http://nsidc.org/arcticseaicenews/2014/04/arctic-sea-ice-atfifth-lowest-annual-maximum/ by National Snow and Ice Data Center, Boulder, Colorado, USA (last accessed 7 October 2014).

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Sea ice extent, March 2014. SOURCE: NATIONAL SNOW AND ICE DATA CENTER.

1.2 million square kilometers below the 1981 to 2010 average minimum.3 So while we are not seeing yearly record lows, ice coverage remains below average both winter and summer. Such below average conditions may facilitate even 3  Map and figures from http://nsidc.org/arcticseaicenews/2014/09/arctic-minimum-reached/ by National Snow and Ice Data Center, Boulder, Colorado, USA (last accessed 7 October 2014).

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Sea ice extent, September 2014. SOURCE: NATIONAL SNOW AND ICE DATA CENTER.

more ice melting, as low ice coverage during the summer means that more of the winter ice will be thinner first year ice, which in turn is more likely to melt come the next summer season. It is this decrease in ice coverage that has drawn the interest of the shipping industry, and the figures behind this interest are well known. The journey from Rotterdam in the Netherlands to Yokohama in Japan through the straits of Gibraltar, the Suez Canal and onwards is one of 11,300 nautical miles, and

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typically completed in around 36 days. Should the same vessel instead be able to make use of the Northern Sea Route, passing along the Norwegian coast and then onwards along the coast of Russia before exiting the route through the Bering Strait, the journey is shortened to some 7,600 nautical miles and may be completed in 26 days. These numbers seem to potentially offer great savings for the shipping companies, as well as offering merchants significantly reduced delays in getting products to buyers. And while shipping is the issue at hand, it should be recalled that the retreat of the ice also sparks interest from other perceptivities, with possibilities extending from fishing to potentially even deep seabed mining. For 2014 the above referred figures suggest good conditions, with the withdrawal of the main ice sheet leaving the Northern Sea Route largely clear, while the Northwest Passage remained closed.4 So far the picture would suggest that there should be heavy usage of the Northern Sea Route in particular. Yet, that has thus far not really been the case. Under Russian law, vessels intending to utilize the Northern Sea Route are required to obtain permission to do so from the Northern Sea Route Admin­ istration (NSR Administration).5 For 2013 the NSR Administration lists no less than 718 applications for navigation in the Northern Sea Route, and 635 permissions. For 2014 the number of applications listed is somewhat lower at 661, but the number of permissions is nearly the same at 631. However, a great number of these are not transit passages through the route, but rather vessels bringing cargo in and out of the Arctic area. In many respects this bit of shipping is highly important. The longer the shipping season the more goods can be transported in and out of the area, thus making the Arctic area more accessible both as a place of habitation and for business purposes. And with the Arctic becoming more accessible both at sea and land, more resource exploitation may take place, and this form of shipping may increase further. It is worth noting that for those primarily concerned with shipping in the Arctic from an environmental viewpoint, this form of shipping is as important as any. The Rotterdam to Yokohama numbers so often cited when explaining 4   According to http://nsidc.org/arcticseaicenews/2014/09/melt-season-ending/, National Snow and Ice Data Center, Boulder, Colorado, USA (last accessed 7 October 2014). 5  Translation of the federal law governing merchant shipping in the water area of the Northern Sea Route can be found on the homepage of the Northern Sea Route Information Office, see http://www.arctic-lio.com/docs/nsr/legislation/federal_law_nsr.pdf (last accessed 5 January 2015). See also the homepage of the Northern Sea Route Administration, www.nsra.ru. The current applicable federal law is the 2012 amendments to previous legislation, but Franckx’s assessment is however still highly relevant. See Erik Franckx, “The Legal Regime of Navigation in the Russian Arctic,” Journal of Transational Law and Policy 18, no. 2 (2009) pp. 327 et seq.

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the i­mportance of the Arctic Sea Routes does not, however, refer to this kind of shipping within or to and from the Arctic. In regard to moving large quantities of goods between the continents it is primarily the option of full transits that has awoken interest. Statistics of these full transits are kept by the Northern Sea Route Information Office. By their count, 71 vessels transited the Northern Sea Route in 2013, up from 46 in 2012.6 For 2014 they list only 22 full transits.7 There are a number of reasons why transit numbers are not greater. First and foremost, the figures given above regarding the ice relate only to the main ice sheet. That this has withdrawn does not mean that the conditions of the Northern Sea Route are ice-free. For instance, in 2013 a local ice variation in mid-September reduced activity.8 Other hazards facing seafarers include fog, relatively poor charting, a lack of the meteorological and oceanographic data services that one is accustomed to from other parts of the world, and relatively poor satellite coverage.9 The latter is important in many respects. For one it makes navigation by aid of satellites more difficult. It also makes communication more difficult. Thus vessels may have problems with both receiving and sending ice reports, and sending emergency reports should the vessel find itself in trouble. This touches on yet another issue shipping companies will face when assessing whether to utilize routes through the Arctic rather than traveling south. Should an accident occur, search and rescue capacity in the Arctic waters are limited. Important in this regard is the Arctic Council Agreement on Cooperation on Aeronautical and Maritime Search and Rescue.10 And there should be no doubt that the agreement represents an important step 6  For a different view on the numbers seeing far lower 2013 transits see Malte Humpert, Arctic Shipping: An Analysis of the 2013 Northern Sea Route Season (The Arctic Institute, 2014) p. 4. 7  The list of transiting vessels for the years 2011–2014 are available at http://www.arcticlio.com/nsr_transits (last accessed 5 January 2014). For some suggestions regarding the lower number of transits see http://barentsobserver.com/en/arctic/2014/12/northernsea-route-traffic-plummeted-16-12. 8  Humpert, Arctic Shipping: An Analysis of the 2013 Northern Sea Route Season, p. 9. 9   Issues identified in the Arctic Council’s Arctic Marine Shipping Assessment 2009 Report. See also the SINTEF report at http://www.sintef.no/home/MARINTEK/Projects/ Maritime/What-is-the-problem-with-communication-in-the-Arctic/ and the new SOLAS chapter XIV introduction 3.1., as reported in MSC 94/21/Add.1. 10   The agreement is available at the Arctic Council’s homepage, http://www.arcticcouncil.org/index.php/en/document-archive/category/20-main-documents-from-nuuk (last accessed 5 January 2015).

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forward in better securing the health and safety of seafarers in the Arctic region. However, the agreement in itself contains little in terms of hard law obligations on the parties. There is no obligation to maintain a certain capacity or state of readiness, although Article 3 paragraph 3 through very soft language obliges the parties to “promote” the establishment of “adequate and effective” search and rescue capabilities. What the agreement does do is make sure that there are readily available points of contact between states, are established areas of responsibility, and are procedures for conducting search and rescue operations within each other’s territories. Notable progress is also made as far as capacity building is concerned, with Russia establishing special search and rescue centers specifically with the Northern Sea Route in mind.11 Still, the rescue capacity is limited, and especially for an accident like that of the cruise vessel MS Explorer which in 2007 had its hull breached by ice off Antarctica. Another important limitation on the use of the Arctic sea routes that has been highlighted more recently stems from the structure of the shipping industry. Shipping is typically done either in bulk or by vessels in liner traffic, the latter often carrying their cargo in containers. For vessels carrying their cargo in bulk, routes like the Northern Sea Route may work when open. The cargo they carry is typically being transported from A to B, without the bulk carrier calling on ports besides its port of departure and destination. A typical example, and a form of vessel that utilizes the Northern Sea Route, are vessels carrying liquefied natural gas. Vessels carrying containers most often conduct their business differently. These vessels make several stops along a set route, taking on and offloading cargo along the way.12 Thus, for these vessels changing their route to use either the Northwest Passage or the Northern Sea Route is not always practical since the Arctic routes are not open year round. Additionally, while the number of days it takes to utilize the regular routes varies little, the time needed for passing through the Arctic heavily depends on the local ice conditions. Vessels are also restricted in size, both because of the depth of the passable waters, and because when icebreaker escort is required, the vessel cannot be wider than the icebreaker supporting it. The container vessels of today are often far wider than any icebreaker in service. 11  See inter alia on the opening of the third center http://baren Journal of Transnational Law and Policy tsobserver.com/en/arctic/2014/10/third-arctic-search-and-rescue-centeropened-15-10 (last accessed 5 January 2015). 12  For one description of this and its consequences for use of the Arctic sea routes see Stephen M. Carmel, “The Cold, Hard Realities of Arctic Shipping,” U.S. Naval Institute Proceedings Magazine 139/71/1 (2013), http://www.usni.org.

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These, and perhaps especially the shipping numbers for 2014, offer some important caveats to some of the previous optimism surrounding use of the Arctic shipping routes. But all is not grim. Looking at transit passages through the Northern Sea Route and the Suez Canal demonstrates a large discrepancy in the number of vessels using the two routes.13 Vessel transits

2011

2012

2013

2014

Northern Sea Route Suez Canal

41 17.799

46 17.224

71 16.596

22

At the same time, these numbers show the enormous potential of the Arctic sea routes. While a good number of the vessels transiting the Suez Canal will be in liner service, a good number will also be carrying cargo in bulk. For these cargo carriers, the Arctic sea routes may be a viable option, saving time and costs in comparison to the Suez Canal. Currently, this may not mean much as the vessel would often be required to obtain the expensive support of an icebreaker.14 But again the expected continued warming of the Arctic and the retreat of the ice may change this, as well as increasing dependability of the routes. That this potential is not lost on the big players may be illustrated by the reports of China developing Arctic shipping guidelines to serve Chinese merchant vessels traveling in Arctic waters.15 2014 did not become the year that broke all records for Arctic shipping. Rather, it demonstrated that there is still a way to go before the Arctic becomes a highway for international shipping and trade. However, the projections have not changed: there will be less ice in the Arctic over the years to come, both as regards the main ice sheet and as regards the troublesome local varieties existing today. So while the Arctic is certainly still icy, there is every reason to 13  Numbers from http://www.arctic-lio.com/nsr_transits and http://www.suezcanal.gov.eg/ TRstat.aspx?reportId=4 (last accessed 5 January 2015). At the time of this writing in 2014, numbers for the Suez Canal were not available. 14  Referencing how fees for a transit through the Northern Sea Route may run up to $100,000, James Kraska, “Arctic Strategy & Military Security,” in Changes in the Arctic Environment and the Law of the Sea, eds. Myron Nordquist, John Norton Moore, and Thomas H. Heidar (Leiden: Martinus Nijhoff Publishers, 2010) p. 277. 15  As reported, inter alia, at http://sinoshipnews.com/News/China-to-complete-Arcticshipping-guidelines-in-June/3w3c2491.html (last accessed 5 January 2015).

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expect increased shipping there in the years to come. For the international lawyer this means that we are facing one of those rare occasions where we are ahead of the curve, and may continue to prepare the ground for the development set to come. 3

Legal Issues—Article 234 and the Polar Code

In legal terms the Arctic Ocean is an ocean, and as such the law of the sea applies there in the same way it does for any other ocean. However, some special considerations have been given to these previously inaccessible and distant waters. Part XII of the LOS Convention contains a single provision, Article 234, which provides 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. Naturally the provision has received considerable attention in regard to the Arctic. The provision was negotiated specifically with this area in mind by the parties with a special interest: Canada, the USSR and the United States, and was incorporated without opposition into the negotiation texts.16 But though the provision did not face too many obstacles during the negotiations, or perhaps precisely for that reason, it leaves substantial room for interpretation. Discussions have been held regarding when it is applicable (is there a time requirement in the “where”), the areas to which it applies (inter alia, what is 16   See Myron Nordquist, United Nations Convention on the Law of the Sea 1982—a Commentary, Vol. IV, eds. Shabati Rosenne and Alexander Yankov (Dordrecht: Martinus Nijhoff Publishers, 1991), p. 393. Setting out a very narrow purpose for the provision on this background, Rob Huebert, “Article 234 and Marine Pollution Jurisdiction in the Arctic,” in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, eds. Alex G. Oude Elferink and Donald R. Rothwell (The Hague: Martinus Nijhoff Publishers, 2001) p. 249.

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required for an area to be ice-covered for most of the year and what is the relationship between Article 234 and the territorial sea), and what measures may be adopted under the provision.17 All these questions cannot be commented on in a meaningful manner in this essay. Instead, some remarks will be made regarding the very last sentence of Article 234, requiring that any laws and regulations put in place by the coastal State shall “have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence”. As regards the reference here to the marine environment, it is worth noting that it is referenced also at the start of the provision, and then not only as something to which due regard is to be had, but measures adopted must be “for” the prevention, reduction and control of marine pollution. The wording thus restricts the coastal State from implementing measures under Article 234 that pursues other goals than those listed.18 Discerning those precise goals may, however, be difficult. A coastal State will, however, need to be able to demonstrate that a measure adopted functions for the benefit of the “prevention, reduction and control” of “marine pollution from vessels”. The “and” in the listing should probably be read as “or”—not requiring a measure to fill all three criteria as far as there are measures affecting only one or two. How much assistance a measure must provide in the prevention, reduction or control of marine pollution may be difficult to assess. On the one hand, the wording does not set forth any threshold, suggesting that any contribution in this regard is sufficient. Such an interpretation may also find support in the precautionary principle. On the other hand, the powers invested in the coastal State are far reaching, not even retaining the notification requirement present in Article 211 paragraph 6.19 17  See, inter alia, Kristin 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 42, no. 1–2 (2011), Ted L. McDorman, “National Measures for the Safety of Navigation in Arctic Waters: NORDREG, Article 234 and Canada,” in The Law of the Sea Convention: US Accession and Globalization, eds. Myron Nordquist, et al. (Leiden: Martinus Njihoff Publishers, 2012) and D.M. McRae and D.J. Goundrey, “Environmental Jurisdiction in Arctic Waters: the Extent of Article 234,” University of British Columbia Law Review 16 (1982). 18  In this direction see also Aldo Chircop, “International Arctic Shipping: Towards Strategic Scaling-up of Marine Environment Protection,” in Changes in the Arctic and Environment and the Law of the Sea, eds. Myron Nordquist, John Norton Moore, and Thomas H. Heidar (Leiden: Martinus Njihoff Publishers, 2010) p. 182. 19  See on this also McDorman, “National Measures for the Safety of Navigation in Arctic Waters: NORDREG, Article 234 and Canada,” supra note 17, at 419.

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In this interpretation the last sentence may add a layer. In its regulation, the coastal State is to have “due regard” to the protection and preservation of the marine environment, “based on the best available scientific evidence”. This is not a hard obligation—the coastal State is not restricted to measures that are purely based on scientific evidence, it only needs to take due regard of this evidence. Nonetheless, an evidence-based approach is required. A coastal State introducing measures for which it is not able to refer to any scientific basis will arguably be acting without the required regard to scientific evidence. Taking a very strict positivistic view, something may also be derived from the requirement that due regard of the protection of the marine environment must be had “based on the best available scientific evidence”. The wording here differs from the reference to scientific evidence in Article 61 paragraph two, which requires the coastal State in its management of the living resources in the EEZ to take “into account the best scientific evidence available to it”. One difference lies in whether the scientific evidence is to be taken into account, or whether it is something to which due regard must be had. The difference between these two may not be great, but the words “due regard” may require somewhat more than merely taking something into account. Perhaps more likely to matter is the second difference. While Article 61 paragraph two requires the coastal State to take into account the “best scientific evidence available to it”, Article 234 omits the “to it”, and simply requires the coastal State to have due regard to the protection and preservation of the marine environment, “based on the best available scientific evidence”. Interpreting the treaty strictly, the phrasing in Article 61 paragraph two may be said to put emphasis on that which is available to this specific coastal State, while Article 234 may require more in terms of obtaining scientific evidence. Again this interpretation would reinforce the obligation of the coastal State to be able to demonstrate what scientific evidence it has considered in introducing measures under Article 234, and the lengths it has gone to in order to obtain the scientific basis.20 However, too much emphasis should probably not be placed on the difference of wording in Article 234 and Article 61 paragraph two. As mentioned above, the article came into negotiations between a limited group of states, and was primarily seen as relevant to the Arctic.21

20  See on this also McDorman, “National Measures for the Safety of Navigation in Arctic Waters: NORDREG, Article 234 and Canada,” supra note 17, pp. 420 et seq. 21  For the negotiating history of Article 234 see also John Norton Moore, “The UNCLOS Negotiations on Ice-Covered Areas,” in Changes in the Arctic Environment and the Law

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The second factor to which a state acting under Article 234 must have due regard is “navigation”. Unlike the marine environment, which should be protected and preserved, there is no such explicit reference to the ends for which due regard is to be had for navigation. There is, however, little doubt that its focus is retention.22 Precisely what having “due regard” for navigation entails is not easily ascertained. The due regard obligation is well known under the Convention. Article 56 paragraph two and Article 58 paragraph three formulate an overreaching obligation of reciprocal consideration between the coastal State and other states within the EEZ. Under Article 234 a coastal State must be able to demonstrate that it has considered the effect upon navigation of any measure to be implemented. Otherwise no regard has been given, and certainly not due regard. Beyond this it may be difficult to find a hard limitation in Article 234. Even measures that have the effect of totally eliminating navigation in an area may be said to have had due regard, provided that the environmental hazards associated with navigation are sufficiently serious.23 And while it has been called into question whether certain measures, like ship routing, may be established under Article 234, as they concern ship safety more than environmental protection,24 the two are tightly interwoven and cannot be easily separated. Under current legal developments the new question is what the relationship should be between the Polar Code and the “due regard” obligation of article 234.25 The article itself of course has no direct reference to the Polar Code.26 Thus there is no direct link establishing the Polar Code as a m ­ aximum of the Sea, eds. Myron Nordquist, John Norton Moore, and Thomas H. Heidar (Leiden: Martinus Nijhoff Publishers, 2010) p. 19 et seq. 22  Id. at 21. 23  Though it has been suggested that a hard limit may be read into the wording, confer Bartenstein, “The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?,” pp. 20 et seq. and McDorman, “National Measures for the Safety of Navigation in Arctic Waters: NORDREG, Article 234 and Canada,” supra note 17, pp. 421 et seq. 24  See Chircop, “International Arctic Shipping: Towards Strategic Scaling-up of Marine Environment Protection,” supra, note 18, at 194. 25  The Polar Code has now been partly adopted, with the amendments to SOLAS expected to enter into force 1 January 2017, and the amendments to MARPOL expected to be adopted in May 2015. See http://www.imo.org/MediaCentre/HotTopics/polar/Pages/default.aspx (last accessed 5 January 2015). 26  Other instruments, like SOLAS, also contain special provisions for navigation in icecovered areas. See for an overview David L. VanderZwaag et al., Governance of Arctic Marine Shipping, (Marine & Environmental Law Institute, Dalhousie University, 2008),

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standard to which coastal States may regulate, and to which flag States must regulate, akin to the regime for generally accepted international rules and standards based on Article 211 paragraphs two and five. Such an approach would also seem barred by MARPOL Article 9 paragraph two, and even more explicitly by the newly adopted SOLAS Chapter XIV Regulation 2 paragraph five.27 Notwithstanding this, the Polar Code has been developed precisely with the Polar Regions in mind, thus at its core having waters also covered by Article 234. The “due regard” assessment cannot then be unaffected by the existence of the Polar Code. At the very least the Polar Code must be expected to exert a gravitational pull. For measures that are subject to regulation in the Polar Code, like requirements of design and construction, it would seem reasonable to require very good reasons for differentiating from the Polar Code. And importantly, this must cover not only measures that are stricter than those of the code, but also measures that differentiate from those of the code. For an international business like the shipping industry it is important that the regulations faced are, as far as possible, the same; otherwise they will severely restrict the area in which a vessel can operate.28 In this regard it seems that the “due regard” requirement in Article 234 may impose both a procedural requirement and substantial limitation on the competence of the coastal State. Procedurally it must be expected that a coastal State wishing to deviate from that which ensues from the Polar Code will have to show a more careful and thorough assessment of effects on both the environment and navigation than that which is ordinarily the case under Article 234. After all, it is in the interplay between these that was incorporated into the Polar Code. This would naturally seem to also affect the substantial assessment of whether a measure can be said to have sufficient regard for navigation. The Code must here cut both ways. A measure implemented through the Polar Code will not come up as a question under Article 234, but given its place in the Code it is difficult to see that it could be held to not have sufficient regard for navigation. On the other hand, it stands to be expected that anyone reviewing measures adopted under Article 234, which is either not found in or differentiates from the Code, will be reluctant to accept these as having the required regard for navigation. There is no imbalance in this. On the one hand we have gained a better regulation of the shipping industry’s operations in Arctic http://law.dal.ca/Files/MEL_Institute/Reports/AMSA_Governance_of_Arctic_Marine_ Shipping_Final_Report__AUG1.pdf. 27  Cf. MSC 94/3 annex 2 p. 3. 28  To some extent this will, of course, be different between different measures. A difference in crew requirements is less intrusive than different construction requirements.

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waters by a mandatory Polar Code; on the other hand it must be accepted that the Polar Code changes the legal landscape, and affects the assessment of what may be done in addition. The above comes with one important caveat. As a better understanding of the ecosystems of the polar areas and new technology emerge, new measures will present themselves as needed, required or possible. Such measures that one did not see the need for, or thought possible, at the time the Polar Code was adopted, should not meet the same resistance as measures that arguably should have made their way into the Code if they were to be applied in the Polar Regions. However, such new measures will need to answer the question of whether they should be implemented through the procedures for amending SOLAS and MARPOL if they strike the proper balance between navigation and the environment. References Bartenstein, Kristin. “The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?” Ocean Development and International Law 42, no. 1–2 (2011): 22–52. Carmel, Stephen M. “The Cold, Hard Realities of Arctic Shipping.” U.S. Naval Institute Proceedings Magazine (2013), http://www.usni.org. Chircop, Aldo. “International Arctic Shipping: Towards Strategic Scaling-up of Marine Environment Protection” in Changes in the Arctic and Environment and the Law of the Sea, edited by Myron Nordquist, John Norton Moore and Thomas H. Heidar, 177–203. Leiden: Martinus Njihoff Publishers, 2010. Franckx, Erik. “The Legal Regime of Navigation in the Russian Arctic.” Journal of Transational Law and Policy 18, no. 2 (2009): 327–342. Huebert, Rob. “Article 234 and Marine Pollution Jurisdiction in the Arctic” in The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, edited by Alex G. Oude Elferink and Donald R. Rothwell, 249–267. The Hague: Marinus Nijhoff Publishers, 2001. Humpert, Malte. Arctic Shipping: An Analysis of the 2013 Northern Sea Route Season: The Arctic Institute, 2014. Kraska, James. “Arctic Strategy & Military Security” in Changes in the Arctic Environment and the Law of the Sea, edited by Myron Nordquist, John Norton Moore and Thomas H. Heidar, 251–281. Leiden: Martinus Nijhoff Publishers, 2010. McDorman, Ted L. “National Measures for the Safety of Navigation in Arctic Waters: NORDREG, Article 234 and Canada” in The Law of the Sea Convention: US Accession

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and Globalization, edited by Myron Nordquist, John Norton Moore, Alfred H.A. Soons and Hak-So Kim, 409–424. Leiden: Martinus Njihoff Publishers, 2012. McRae, D.M., and D.J. Goundrey. “Environmental Jurisdiction in Arctic Waters: The Extent of Article 234.” University of British Columbia Law Review 16 (1982): 197–228. Moore, John Norton. “The UNCLOS Negotiations on Ice-Covered Areas” in Changes in the Arctic Environment and the Law of the Sea, edited by Myron Nordquist, John Norton Moore and Thomas H. Heidar, 17–26. Leiden: Martinus Nijhoff Publishers, 2010. Nordquist, Myron. United Nations Convention on the Law of the Sea 1982—a Commentary, Vol. IV. Edited by Shabati Rosenne and Alexander Yankov. Dordrecht: Martinus Nijhoff Publishers, 1991. Nordquist, Myron, John Norton Moore, and Thomas H. Heidar, eds., Changes in the Arctic Environment and the Law of the Sea. Leiden: Martinus Nijhoff Publishers, 2010. Nordquist, Myron, 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. VanderZwaag, David L., Aldo Chircop, Erik Franckx, Hugh Kindred, Kenneth MacInnis, Moira McConnell, Agnus McDonald, Ted L McDorman, Sonja Mills, Tony Puthucherril, Susan Rolston, Phillip Saunders, and K. Joseph Spears. Governance of Arctic Marine Shipping, Marine & Environmental Law Institute, Dalhousie University, 2008.

CHAPTER 11

Necessary Conditions for the Commercialization of Arctic Shipping Sung Woo LEE* Abstract The Northern Sea Route (NSR), located between the North Atlantic and the North Pacific along the Arctic Sea, is gradually becoming one of the more beneficial international shipping routes. Every year there is a keen rise in the number of ships passing through the NSR. The number of vessels passing through the NSR is increasing rapidly, reaching 158 transits in 2013. The NSR has reduced the distance by 40 percent and time by ten days, which saves time and cost compared to that of the Suez Canal Route (SCR). It is expected that bulk and container cargo throughputs in the NSR will increase quickly. The commercialization of the Northern Sea Route is likely to have a stronger impact on natural resources transportation in Siberia and the Russian Arctic region rather than the container logistics connecting northern Europe with Asia. In this aspect, East Asian countries such as Korea, China and Japan are taking profound interest in the NSR and the Arctic issue, thus improving their efforts to cooperate with the Arctic states. However, to realize this feasible forecast, we have to overcome realistic challenges for the commercialization of Arctic shipping: The first challenge is a shortage of icebreakers operating in the NSR. The second is an imbalance of cargo volume when transporting from Europe to Asia and Asia to Europe. The third is a high operational cost and that the system in itself is highly non-transparent. The fourth is the poor infrastructure of the NSR. The fifth is the issue of securing the punctuality of navigation. The sixth is an insufficient disaster and safety system. The seventh is environmental issues and finally, the life of indigenous peoples also should be considered. The highly variable and difficult ice conditions and aforementioned challenges seem to be an insurmountable obstacle to commercial transit traffic. However this study will offer a reasonable solution to overcome the issues at hand. As one of the

* International Logistics Department, Korea Maritime Institute. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/bergen-lee.pdf.

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004314252_013

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solutions, the Russian government could seek foreign capital to build icebreakers, infrastructure and construct logistics systems. Moreover, it would be highly beneficial to codify safety systems and environmental protection systems in the Arctic into law. In addition, it is necessary to understand the distinct characteristics of the Arctic area and find connections between the area and the state and local enterprises. In conclusion, the most important thing is cooperation between the Arctic States and Non-Arctic States so that utilization of the NSR becomes more frequent, safe, and inexpensive in the foreseeable future.

1 Introduction Following World War II, then the Cold War between the United States and USSR, globalization spread throughout the world. By promoting the movements of goods, globalization has brought a huge change in the logistics field such as containerization and intermodalism, which are the basis for the movements of goods. This revolution in international trade has achieved a rapid growth from 1.5 times global GDP to 3 times resulting from containerization. Going through the process of adaptation and proliferation for many decades since the first emergence of containerization, the world maritime container transport network has become a reality by spreading this logistical innovation from Europe and the United States to Asia and third world countries.1 The remarkable aspect is that the field of maritime transport has grown very fast, handling more than 80% of international trade. Due to the sustainable growth of international trade by utilizing maritime transport, the function of port and backup logistics facilities have developed with incredible speed and as the size expands, the spatial structure of the port hinterland of main countries are changing.2 However, although the port hinterland network connected to maritime transportation has changed dramatically, maritime transportation connected to the ocean has remained the same in terms of its geographic spatial aspect since the 20th century. Since the Atlantic Ocean and the Pacific Ocean have become connected by the commercial revolution through the discovery of sea routes from Europe to Asia using the route for the Cape of Good Hope, which was discovered in the 16th century, and by the opening of the

1  Rodrigue, J.P., Notteboom, T., “Foreland-Based Regionalization: Integrating Intermediate Hubs with Port Hinterlands”, Research in Transportation Economics, Volume 27(1), 2010, p. 20. 2  Lee, S.W., Ducruet, C., “A Tale of Asia’s World Ports: the Spatial Evolution in Global Hub Port Cities”, Geoforum Volume 39(1), 2008, p. 163.

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Panama Canal in the 20th century, no particular changes have been made in the shipping routes. While not much change has been made in terms of transportation geography, a new commercial revolution has broken out recently in the field of sea transport. Thawing of the ice in the Arctic region due to global warming has provided a shortcut between Europe and Asia. The emergence of the Northern Sea Route (NSR), bringing a new form of trade between Asia and Europe, makes it possible to bring the center of the world’s economy to Asia.3 In this respect, East Asian countries such as Korea, China, and Japan are taking profound interest in the NSR. Based on this environmental change, it is necessary to examine the requirements for using the NSR from the perspectives of East Asian countries. Therefore, the aim of this study is to find the elements that are required and actions which are to be taken in order for the East Asian countries to make economical use of the NSR. 2

Possibility of the NSR

As mentioned above, the NSR has contributed to changing the face of international logistics in the 21st century, and that change continues to occur. This is a revolutionary era in logistics since the NSR could reduce travel by approximately 10 days and 7,000 km in distance when going to Europe from Asia compared to the previously existing route passing through the Suez Canal. Although it varies from case to case, it is reported that approximately 25% of ocean freight expenses could be reduced.4 However, many negative opinions persist in using the NSR. Concerns about harsh climate conditions, unconfirmed maritime information, the poor condition of logistics infrastructure, and environmental destruction in the Arctic Region are some of the elements that are perceived as obstacles in utilizing the NSR. Despite these concerns, the use of the NSR is already in progress as seen in Table 11.1. The number of vessels passing through the NSR is increasing rapidly; for example there were 34 transits in 2011, 46 transits in 2012, and 72 transits in 2013 in the NSR. However, the fact that the Russian government controls the examination of the management system of the NSR and that that country is currently u ­ ndergoing 3  Lee, S.W., “The Change in the Port Logistics System in East Asia and the Commercialization of the Northern Sea Routes”, Korea Maritime Institute, 2014, p. 77. 4  Lee, S.W., Song, J.M and Oh, Y.S., “Shipping & Port Condition Changes and Throughput Prospects with Opening of the Northern Sea Route”, Korea Maritime Institute Press: Seoul, 2011.4, p. 100.

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Necessary Conditions TABLE 11.1 Increasing Cargo and Transit Numbers via the NSR.5 Unit: thousand ton Category

2010

2011

2012

2013

Cargo Volume Transit Number

111 10

820 34

1,260 46

1,316 72

political sanctions due to the Ukrainian crisis makes it difficult for ships of other countries to pass through the Russian part of the NSR. Therefore, the number of ships navigating in the NSR seems to be declining, yet the use of NSR will certainly continue to increase.5 As shown in Table 11.2, the main objects of cargo being shipped via the NSR are mostly liquid cargo such as crude oil, refined oil, and gas. Moreover, three times more cargo is shipped from Europe to Asia than from Asia to Europe. The traffic is heaviest in Russia. However, it is known that the frequency of utilization among East Asian countries is also very high, showing nine transits from both Korea and China.6 TABLE 11.2 Increasing Shipping Cargo via the NSR7 Cargo Type

No. of Vessels

Liquid Bulk Frozen Fish Ballast Repositioning Total

26 6 1 6 7 46

Cargo Volume(t)

894,079 359,201 8,265

1,261,545

Full displacement

472,075 78,351 550,426

Eastbound Cargo

Westbound Cargo

661,326 262,263

232,753 96,938 8,265

923,589

337,956

5  Northern sea route information office in Centre for High North Logistics, each year. 6  Rosatomflot, 2014. 7  Lee, S.W., Shipping and Offshore conference in Houston, presentation material, 2013, 11.

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In this context, the Russian government and Korean Maritime Institute have provided an estimate of the amount of cargo passing through NSR located along the Russian coast as shown in Table 11.3 and Table 11.4. The Russian government estimated all the cargo passing through the NSR until 2030 and projected the approximate volume of cargo transported to be 1.2 billion tons. The Korea Maritime Institute analyzed the expense condition of cargo limited to containers by comparing it with that of the Suez Canal route and estimated the approximate volume of cargo transported to be 12 million TEU by 2030 on the assumption that the expense of using the NSR were the same as the previously existing route. TABLE 11.3 Traffic Forecast via the NSR in Bulk.8 Unit: ’000 ton Category

2015

2020

2030

Port throughput in NSR Liquid Dry

6,570 4,140 2,430

9,470 6,300 3,100

12,080 6,530 5,550

* Including coastal, transit, imp(ex)port.

TABLE 11.4 Traffic Forecast via the NSR in Cost’ 9 Unit: ’000 ton NSR Cost

2015

2020

2025

2030

120% 110% 100% 80% 70%

54 128 305 1,311 2,185

425 1,017 2,168 6,357 8,746

1,402 3,138 6,081 15,193 19,420

3,015 6,452 12,047 27,975 34,731

8  Russian Government, “Strategy of Development of Sea Port Infrastructure of Russia Up to 2030,” 2012. Available at (in Russian) http://www.rosmorport.com/seastrategy.html. 9  S.W. Lee, “Benefit of NSR to North Pacific,” in The Arctic in World Affairs, eds. Robert W. Corell, James Seong-Cheol Kang, Yoon Hyung Kim”, 2011 North Pacific Arctic Conference Proceedings, Korea Maritime Institute, EWC, KOTI, 2012, 8, p. 109.

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The NSR and Korea, China and Japan

The prospect for the cargo volume using the NSR can be found from the great amount of resource consumption of East Asian countries such as Korea, China, and Japan, as well as the trade volume between Europe and specific countries. As shown in Table 11.3, considering the amount of oil consumed in Korea, China and Japan, East Asian countries are leading the resources market in the world to such an extent as to consume 18% of the global resources, including 45% of the world’s iron ore resources10 and 42% of the world’s coal resources.11 In this regard, East Asian countries are putting effort into the commercialization of the NSR by providing various policies and businesses related to the Arctic (Table 11.5). 3.1 The Republic of Korea and the NSR The Republic of Korea has been very active in the NSR. The Dasan Station was established in the Arctic in 2012 and the nation’s first icebreaker, Araon, was built in 2009 by the Republic of Korea. Also, active participation by the Republic of Korea in the Arctic Council has led to its status as a permanent observer. The Korean Ministry of Oceans and Fisheries also announced the comprehensive Arctic Policy Framework Plan in Northeast Asian countries as part of an effort to engage in Arctic policy. Moreover, the Republic of Korea concluded an MOU for port development in Asia with Russia and an MOU for shipping and Arctic utilization with Norway. 3.2 China and the NSR China casts attention on various issues such as environmental studies, resource exploitation, and security in the Arctic region. China asserts its right to develop resources in international waters and its right of passage in the NSR since the economic value is increasing in the region due to the thawing of the ice. Currently, China is actively strengthening its diplomatic relationships with Arctic States. For instance, Premier Hu Jintao visited Greenland, to promote development of mineral resources and agreed to invest USD 219 million in infrastructure such as an airport, port facilities, etc. Moreover, China is trying to develop its cooperation with Arctic States which has resulted in expanded diplomatic cooperation with Iceland, which is one of the eight Arctic States. China is also in the process of developing diplomatic relations with Norway.

10  http://www.worldsteel.org/ 11  http://www.eia.gov/

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3.3 Japan and the NSR Japan was the first country in Northeast Asia to launch institutionalized research specializing in Arctic matters. Japan began its research in 1980 and established research institutes for Arctic studies in Svalbard, Norway. Japan is highly interested in Arctic issues since the Arctic Ocean has the potential for both new shipping routes and abundant natural resources. In May 2013, Japan obtained Permanent Observer status at the Arctic Council with Korea and China. Japan is conscious of competition in Arctic studies because of Korea and China’s belated interest in the region. Therefore, Japan launched the Arctic Task Force and is pursuing scientific research cooperation with Russia. TABLE 11.5 Comparative Approaches among the Republic of Korea, China, and Japan Comparative Approach

Establishment of research institute

Republic of Korea

China

– Dasan Science Research Station – Joint research centers with Arctic States – Shipbuilding technology R&D Status in the AC Permanent Observer Permanent Observer Parties to MOUs Russia, Norway & Korea & Finland China Domestic policy – Guideline for regarding the region Polar Policy Advancement – Arctic Policy master Plan Others – Embassy in Iceland – FTA with Iceland

Japan

– Arctic Science Station – JAMSTEC – JCAR

Permanent Observer Norway

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4

Challenges of Commercializing Arctic Shipping

The three East Asian countries, which are the user states and the Arctic coastal States including Russia, are currently pushing for the commercialization of the NSR. However, many obstacles need to be overcome for the commercialization of the NSR to occur. The first obstacle is the limitation on the operations of icebreakers in the NSR. At present, only seven icebreakers can be operated out of ten existing icebreakers in the NSR and among the seven operable icebreakers, only three of them could support the Russian coastline which is the main NSR section.12 As the amount of shipping increases, the demand for icebreakers will become greater and shipping will be limited due to the lack of the icebreakers. This shortage will impact the ability to shorten shipping times. For instance, the Korean shipping company Glovis has encountered at least three-day delays in order to be escorted by icebreakers in 2014 when shipping in the NSR. Despite the shortening effect in distance, the shortening effect in the time is relatively small, which eventually causes a decrease in profit. Table 11.6 indicates the current status of icebreakers operating in the north Pacific of the NSR. TABLE 11.6 Present Numbers of Icebreakers13

Russia Sweden Finland Canada USA Denmark Others Total

In the World

In Arctic available (Total)

37 7 7 6 5 4 2 78

3(5) 1(1) 1 1 1(2) – – 7(10)

12  Korea Maritime Institute, The Study on the Strategic Cooperation Plan with Arctic States, 2013, 12, p. 181. 13  http://news.usni.org/2013/07/23/u-s-coast-guards-2013-review-of-major-ice-breakers-ofthe-world

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The second obstacle is the imbalance of the cargo. As mentioned in section 2, the amount of cargo transported from Europe to Asia is three times larger than the cargo transported from Asia to Europe. The fundamental ­optimization of cost in terms of logistics is when the size of cargo transported is the same in both directions. In other words, the best way to optimize the logistics cost is to fill up the container box of trains or vessels with the same weight when transporting back and forth. If there is cargo for transportation in only one direction, the shipper should pay twice for the logistics cost, which would be uneconomical. Therefore, for increased efficiency in using the NSR, the volume of the cargo transported should be roughly consistent both directions. The third obstacle is the fact that the toll for escort by icebreakers while passing through the NSR and the toll according to the volume of cargo is paid to Russia. Currently, Russia collects 1,048 rubles per ton,14 which aggravates the burdens of ship owners when passing through the NSR with large amounts of cargo. The current toll is not too much of a burden at present, but increases in tariffs are possible due to the Russian authorities’ commercialization of the NSR, which will be applied when cargo with more than optimal capacity passes through the area. The fourth obstacle is the poor infrastructure in the NSR. The most urgent matter is to secure the port infrastructure as well as the logistics complex connecting the relevant ports and the traffic network at the same time. It is essential to secure the port infrastructure that provides shelter in order to furnish supplies, rescue, and places to avoid other vessels since various problems can occur while navigating the long distance routes. Currently, there are several ports near the NSR coastline. However, most of the ports are in poor condition as they were made in the former Soviet era. Moreover, these ports do not provide a supply base for the export of resources from the port hinterland or for supply support due to the lacking of a transportation and logistics network connecting the port hinterland. Meanwhile, the shortage of communications infrastructure is becoming a serious problem. Also, access to information on navigation and waterways is insufficient. The fifth obstacle is the issue of securing the punctuality of navigation. The punctuality matter is a potential issue related to all of the problems mentioned above. The transport of containers through the NSR is not feasible if one cannot predict the port of call, and when or where the vessel will pass through a particular region due to the lack of information, infrastructure and cargo. After all, only bulk cargo using an irregular liner will be using the NSR and due to the irregularity, the commercialization of the NSR will reach its limit. 14  Lee, S.W., Song, J.M. and Oh, Y.S., “Shipping & Port Condition Changes and Throughput Prospects with Opening of the Northern Sea Route”, Korea Maritime Institute Press: Seoul, 2011, 4, p. 97.

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The sixth obstacle is an insufficiency in the disaster and safety system. The Search and Rescue (SAR) situation in the Arctic is limited due to the remoteness and long distances that are involved in responding to emergencies, as well as cold temperatures and sea ice conditions. Also, there is a lack of adequate shore side infrastructure and communication to support a SAR response. These include shortages of food, lodging and medical facilities. Therefore, the Arctic Council adopted an agreement on developing a joint SAR framework in 2011. The eight Arctic States have committed to give assistance to those in distress and to cooperate with each other in times of crisis. The Arctic States have agreed to establish, operate and maintain adequate and effective SAR capabilities within their areas of responsibility.15

FIGURE 11.1

Illustrative Map of Arctic SAR Areas in the Arctic SAR Agreement.15

15  Arctic Search and Rescue Agreement, accessed April 28, 2015, at http://www/arcticcouncil.org./.

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The seventh obstacle is an environmental issue. The NSR is a very environmentally sensitive region. If any disaster occurs in the region, it will not only seriously affect the Earth but also be almost impossible to remedy once it happens. Environmentalists often express their concerns regarding the commercialization of the NSR. The best way to alleviate these concerns is to prevent the occurrence of the crisis which will cause the environmental problems, but few such provisions have been made. Lastly, the life of indigenous people should be considered.16 It was reasonable to preserve the well-being of these people prior to the commercialization of the NSR. Financial support is required to guarantee their subsistence. It is necessary to compensate indigenous people for the toll of using the NSR and developing its resources. This will eventually lead to conflicting interests regarding the economic efficiency of using the NSR. Many problems persist in commercializing the NSR aside from the abovementioned problems. The commercialization of the NSR requires a substantial investment of cost and time until the problems are solved and therefore, the user States and the Arctic coastal States need to cooperate in order to obtain solutions. 5 Implications A staged approach is urgently needed in order for the East Asian countries and the Arctic States to make proper use of the NSR. This study has reviewed the expected obstacles which should be examined before successful commercialization of the NSR. These obstacles must be overcome before the commercialization of the NSR takes effect. Therefore, the following measures should be taken in order to reduce the obstacles. First, a closer examination of ports and their infrastructure around the Arctic Ocean needs to occur. The support of various services and the security of cargo passing through the ports are required for the shipping in the NSR regardless of whether liners or steamers are being used. In this regard, the analysis should be based on current information regarding ports surrounding the NSR. Also, it is necessary to develop jointly main ports and select hub ports by cooperating with Russia.

16  Arbor L., Parkinson A., Kulim J.C., “Human Health at the Ends of the Earth,” 2010. Available at http://www.researchgate.net/publication/44693346_Human_health_at_the_ ends_of_the_earth (note color map of indigenous peoples at page 3).

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Second, targets and demand for the infrastructure required for mass shipping in the NSR should be identified. The ports surrounding the NSR are functionally different from those of general ports. Many special facilities must be equipped for ports to operate in an extreme situation. For instance, securing necessary facilities which cannot be found in the general ports is required, such as those for nuclear-powered vessels and winterized port cranes and buildings. Currently, Russia has a plan to construct an ice city on the coastline of the Arctic Ocean. Many atypical structures need to be built, thus planning for facilities to be introduced in the port and logistics area is very critical as is securing the relevant technologies.17 Third, significant investment will be required in constructing port and logistics infrastructure in the NSR. Procurement of financial aid will be necessary to promote relevant businesses smoothly and to encourage active corporate participation from the coastal countries and user countries. The government and public institutions of the countries affected should participate in the procurement of the relevant funds. It is expected that the IBRD, the Arctic Council and the government banks of user nations will participate. The government-run banks of Korea, China and Japan and the participation of the recently mentioned AIIB18 and multilateral cooperative banks could provide that support. Also, the involvement of private banks is required and various preparations should take precedence to participate in the relevant ventures. Fourth, although there is an urgent need to secure the ports and logistics infrastructure to commercialize the NSR, logistics can only be competitive when they are cohesive. Therefore, only under the connection of ports around the Arctic Ocean and the logistics network coming from nearby East Russia, Northern Mongolia, and Harbin China, will logistics be effective. To make commercialization of the NSR a reality as soon as possible, important steps need to be taken, such as the establishment of an information support center, the preparation of legal policy on the preservation of the environment, the implementation of a disaster prevention system, and the inclusion of a program to protect and financially assist native peoples affected by the NSR’s commercialization. Lastly, the NSR traverses the Arctic, a precious “common heritage of mankind” region. Therefore, the Arctic coastal States, user States, and other states should all be concerned with the NSR and ­establish 17  Ibid. 3, pp. 137–138. 18  The Asian Infrastructure Investment Bank (AIIB) is an international financial institution proposed by the government of China. The purpose of the multilateral development bank is to provide finance to infrastructure projects in the Asia region. http://en.wikipedia.org/ wiki/Asian_Infrastructure_Investment_Bank (visited 24.04.2015).

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a reasonable governance regime for both the protection and commercialization of the NSR. References

Journal Articles and Conferences



Additional References

Arbor L., Parkinson A., Kulim J.C., Human Health at the Ends of the Earth, 2010. Available at http://www.researchgate.net/publication/44693346_Human_health_at_the_ends_ of_the_earth. Lee, S.W., “Benefit of NSR to North Pacific,” The Arctic in World Affairs, eds. Robert W. Corell, James Seong-Cheol Kang, Yoon Hyung Kim”, 2011 North Pacific Arctic Conference Proceedings, press by Korea Maritime Institute, EWC, KOTI, 2012, 8. ———, Shipping and Offshore conference in Huston, presentation material, 2013, 11. ———, “The Change in the Port Logistics System in East Asia and the Commercialization of the Northern Sea Routes”, Korea Maritime Institute, 2014. Lee, S.W., Ducruet, C., “A Tale of Asia’s World Ports: the Spatial Evolution in Global Hub Port Cities”, Geoforum Volume 39(1), 2008. Lee, S.W., Song, J.M. and Oh, Y.S. “Shipping & Port Condition Changes and Throughput Prospects with Opening of the Northern Sea Route”, Korea Maritime Institute Press: Seoul, 2011.4. Rodrigue, J.P., Notteboom, T., “Foreland-based regionalization: Integrating intermediate hubs with port hinterlands”, Research in Transportation Economics, Volume 27(1), 2010. Study on the Strategic Cooperation Plan with Arctic States, Korea Maritime Institute, 2013, 12.

Northern sea route information office in Centre for High North Logistics. Rosatomflot, 2014. Russian Government, “Strategy of Development of Sea Port Infrastructure of Russia Up to 2030,” 2012. Available at http://www.rosmorport.com/seastrategy.html (in Russian). Arctic Search and Rescue Agreement, available at http://www/arctic-council.org./ http://www.eia.gov/ http://en.wikipedia.org/wiki/Asian_Infrastructure_Investment_Bank http://news.usni.org/2013/07/23/u-s-coast-guards-2013-review-of-major-ice-breakersof-the-world http://www.worldsteel.org/

CHAPTER 12

Arctic Navigation: Recent Developments J. Ashley Roach1 Abstract Following adoption in 2009 of the Guidelines for Ships Operating in Polar Waters, the International Maritime Organization (IMO) agreed to develop a mandatory code for ships operating in polar waters (known as the Polar Code). This paper describes a number of the recent developments in Arctic navigation, with a particular emphasis on the legal issues associated with the development and adoption of the mandatory Polar Code. As the deliberative documents of IMO meetings are not generally publicly available, the paper illustrates how governments and observers at IMO sought to influence the development of the Polar Code at the various meetings of the ­sub-committees and committees in 2013 and 2014. The following outlines the sections of the paper: Introduction Trends in Arctic Shipping Geographic Scope of Arctic Waters in the Polar Code Nautical Charting of the Arctic Arctic International Agreements Developing the Polar Code Unilateral National Regulation of Shipping in the Arctic Legal Effect of Polar Code on National Regulations Summary and Conclusions Appendices

1   Captain, JAGC, USN (retired), Office of the Legal Adviser, US Department of State (retired), Global Associate and Senior Visiting Scholar (2014), Centre for International Law, National University of Singapore. This paper updates portions of section 17.2 of J.A. Roach and R.W. Smith, Excessive Maritime Claims (Nijhoff, 3rd ed., 2012). The views expressed in this paper are not intended to reflect the position of any government or any of their departments or agencies. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/ bergen-roach.pdf.

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004314252_014

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1 Introduction In a map of the world the usual view is a Mercator projection where the Arctic is both peripheral and truncated. Such a projection makes it almost impossible to envision the Arctic Basin as the focal point of an internationally important region. In contrast, a polar projection not only highlights the central position of the Arctic, but also makes it clear that the United States, Canada, Greenland and Russia (among others) are close neighbors in geopolitical terms.2 See, for example, the polar projection depicted in Figure 12.1 of Erik Molenaar’s paper in this volume, “International Regulation of Central Arctic Ocean Fisheries.”

FIGURE 12.1

World map (Mercator projection). SOURCE: https://commons.wikimedia.org/wiki/File:Mercatorprojection.jpg.

2  Oran R. Young, “Becoming an Arctic Nation: The United States in the Age of the Arctic,” in Center for Oceans Law and Policy, Eleventh Annual Seminar: The Polar Regions 2, 12 (1987).

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The extensive legal framework already applicable to the Arctic Ocean includes:

•

the law of the sea, as reflected in the Law of the Sea Convention, which allows the coastal States to claim territorial seas, Exclusive Economic Zones (EEZs), shelf out to 200 miles,3 shelf beyond 200 miles where it meets the Article 76 criteria,4 passage rights for foreign flag vessels,5 high seas freedoms,6 and the regime for marine scientific research;7 various IMO agreements on safety of navigation and prevention of marine pollution clearly apply to the Arctic Ocean (e.g., SOLAS, MARPOL and its annexes on vessel source pollution), the London Convention/Protocol on ocean dumping; and various air-related agreements that indirectly protect the Arctic, such as the 1979 Convention on Long-Range Transboundary Air Pollution, the 1987 Montreal Protocol on the Ozone Layer, the 1992 Framework Convention on Climate Change, the 1998 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, and the 2001 Convention on Persistent Organic Pollutants.

• •

In contrast to Antarctica (a continent surrounded by ocean with no indigenous population), the Arctic is a relatively small ocean surrounded by the five coastal States with a number of indigenous peoples. The amount of ice covering the Arctic Ocean has been declining over the recent past8 with a resulting interest in trans-Arctic shipping because of the much shorter distances between the Pacific and Atlantic Oceans than through the Panama or Suez Canals or around Cape Horn (see the illustration below). However, navigation in the Arctic is much more challenging and difficult than sailing in more moderate or tropical waters. Indeed, it is presently possible in some places only during the northern summer months. Consequently, efforts have been underway since 2010 to prescribe standards for safe and environmentally sound shipping through the development of a mandatory International

3  LOS Convention, art. 57. 4  LOS Convention, art. 76. 5  LOS Convention, arts. 17–26 (territorial sea), Part III Straits Used for International Navigation. 6  LOS Convention, arts. 58 & 87. 7  LOS Convention, arts. 245–257. 8  For details over time see U.S. National Snow and Sea Ice Data Center, “Arctic Sea Ice News & Analysis,” http://www.nsidc.org/arcticseaicenews/ and U.S. National Ice Center/Naval Ice Center, www.natice.noaa.gov/Main_Products.htm.

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FIGURE 12.2

Possible new routes through Arctic Ocean: Shorter distance is around 3,900 to 4,500 miles in both the Northwest Passage and the Northern Sea Route. SOURCE: http://www.grida.no/graphicslib/detail/northern-sea-route-andthe-northwest-passage-compared-with-currently-used-shipping-routes_1336. AUTHOR: HUGO AHLENIUS, UNEP/GRID-ARENDAL.

Code for Ships Operating in Polar Waters (Polar Code). This paper brings the authors’ previous discussions up to date.9 The paper begins with a summary of recent trends in Arctic shipping, the state of nautical charting of Arctic waters, and recent Arctic agreements. The remainder of the paper examines various legal issues that have arisen during 2013 and 2014 in the development of the Polar Code as a mandatory IMO instrument. The paper ends with some concluding thoughts. The texts of the new amendments to SOLAS and MARPOL and of the mandatory provisions of the Polar Code are appended to the paper. 2

Trends in Arctic Shipping10

There are basically three routes for ships to transit between the Bering Strait and the Atlantic Ocean: the Northern Sea Route (NSR), the Northwest Passage (NWP) and through the high seas of the Arctic Ocean over the North Pole (“over the top”). The United States believes the NSR and NWP are straits used for international navigation as that term is used in Part III of the LOS Convention 9   The earlier efforts are described in J.A. Roach and R.W. Smith, Excessive Maritime Claims, supra note 1, pp. 486–489. 10  This section updates the material in Roach and Smith, Excessive Maritime Claims, supra note 1, pp. 477–480.

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with all the accompanying rights and duties of user States and straits States.11 Recent trends in the use of each route are reviewed in that order. We turn first to the NSR. 2.1 Northern Sea Route (NSR)12 The Arctic Council’s 2013 final report of the Arctic Ocean Review Project des­ cribed in some detail Russia’s recent efforts to develop the Northern Sea Route: Russia is interested in further developing its Northern Sea Route (NSR), a route which has experienced renewed activity, to carry a greater volume of natural resources to global markets. Linking the Russian Arctic during a summer navigation season of three to four months (roughly July to October) to markets in China and Southeast Asia has been the focus of recent experimental voyages. In late August 2011, a super tanker, the Vladimir Tikhonov, crossed the NSR with icebreaker support to deliver 120,000 tons of gas concentrate from Murmansk to Bangkok, Thailand. A bulk carrier under Liberian flag with 66,000 tons of iron ore, Sanco Odyssey, sailed from Murmansk to Beilun, China, on the NSR during 3–10 September 2011.13 These two voyages represent the largest tanker and bulk carrier to sail the NSR. This not only indicates an increase in the size of ships that can sail on more northerly routes along the Russian Arctic, but a significant change in the NSR shipping season. During summer 2012, 46 ships sailed the NSR carrying more than one million tons of cargo, a 53 per cent increase in cargo volume over 2011.14 More traffic on trans-Arctic voyages will also mean increased traffic in the Bering Strait Region and along the northern Norwegian coast. Thus far, shippers along the NSR focus on the transport of natural resources from west to east, in a summer navigation season of three to four months. However, in November 2012, the River Ob sailed the NSR to deliver liquefied

11  Roach and Smith, Excessive Maritime Claims, supra note 1, pp. 312–328. On Canada’s claim that the NWP is Canadian internal waters, see id., at pp. 318–328, esp. notes 118–119. On Russia’s claim that the NSR is internal waters, see Roach and Smith, pp. 312–318. 12  See Roach and Smith, Excessive Maritime Claims, supra note 1, pp. 312–318, 478 and 495–496, for an earlier discussion of issues associated with the Northern Sea Route. 13  “Record long Arctic navigation season,” Barents Observer, Nov. 18, 2011 (reference in original), available at http://barentsobserver.com/en/business/record-long-arctic-navigationseason. 14  “46 vessels through Northern Sea Route,” Barents Observer, Nov. 23, 2012 (reference in original), available at http://barentsobserver.com/en/arctic/2012/11/46-vessels-throughnorthern-sea-route-23-11.

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natural gas (LNG) from Norway to Japan. Although escorted by icebreaker, the vessel encountered young sea ice of only 30 centimeters.15 While Russia and several Asian nations pay significant attention to the NSR for all cargoes, regular container ship operations during such a short navigation season have not yet proven viable. The higher risks for delayed cargoes, the uncertainty of marine insurance for this remote region, and the variability of the regional sea ice cover all present unique challenges to international container shippers along the NSR. In 2014 the UK P&I Club issued a fact sheet on P&I insurance for ships transiting the Northern Sea Route.16 The Russian Northern Sea Route Information Office reported the final statistics for transit navigation on the NSR in 2013 as follows:1718 TABLE 12.1 NSR transit navigation in 2013. Cargo Type

Number of Vessels

Liquid Bulk LNG General Ballast Repositioning Total:

31 4 1 13 15 7 71

Volume, tons

911,867 276,939 66,868 100,223

1,355,897

Displacement, tons

469,703 38,027 507,730

Cargo Volume Eastbound, tons

Cargo Volume Westbound, tons

588,659 203,439 66,868 36,846

323,208 73,500

895,812

460,085

63,377

Amount of calls: Eastbound—41; Westbound—30 Total vessels under foreign flag: 25 from 11 states: All flags: Russia—46, Liberia—5, Marshall Islands—2, Greece—2, Cyprus—2, Norway—2, Finland—2, Malta—1, Hong Kong—1, Bermuda—1, Antigua and Barbuda—1.18

15   “LNG Arctic odyssey in times of climate change,” Barents Observer, Dec. 6, 2012 (reference in original), available at http://barentsobserver.com/en/energy/2012/12/lngarctic-odyssey-times-climate-change-06-12. 16  “Arctic Shipping: P&I Insurance FAQs,” 9 Sept. 2014, available at http://www.ukpandi .com/fileadmin/uploads/uk-pi/Documents/Polar___ice_navigation/Arctic_Shipping__ The_Northern_Sea_Route_FAQS.pdf. 17  “Final Statistics for Transit Navigation on the NSR in 2013,” Nov. 22, 2013, available at http://www.arctic-lio.com/node/209. More detailed statistical information for 2011, 2012 and 2013 transits is available at http://www.arctic-lio.com/nsr_transits. 18  Data from 2013 detailed transit statistics, supra note 10.

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An analysis of these statistics by The Arctic Institute found that only 41 vessels traveled the entire length of the NSR and qualify as full transits. Twenty three other vessels either departed from or arrived at ports inside the NSR and did not fully transit it. Seven more vessels traveled exclusively within the NSR. Of the 41 vessels only 30 carried cargo, mostly oil products, transporting 1.19 million tons.19 2.2 Northwest Passage20 Official Canadian data on recent transits of the Northwest Passage does not appear to be available on the web at the time of writing. As stated in a 2013 Arctic Council report: In summer 2010, two cruise ships sailed the length of the Northwest Passage (NWP), as did one each in 2011 and 2012. During summer 2012, The World, a 196.3 meter condominium ship, became the largest tourist ship to transit the NWP. The NWP has also experienced a notable increase in adventurers and small yacht voyages in 2010 . . ., 2011 . . ., and 2012. . . . These small vessel voyages along the NWP present a new set of challenges for the maritime authorities in the remote Canadian Arctic. To put these numbers in perspective, as of the 2012 navigation season, there have been only 183 full voyages of the NWP since Roald Amundsen’s voyages aboard Gjøa from 1903–1906.21 However, development of a trans-Arctic route through the NWP does not appear likely in the near future.22 2.3 Over the Top Year-round ice covering the high seas areas of the Arctic Ocean, including the North Pole, suggests that to date there have been few transits “Over the Top”. One recent study found that, based on AIS data, present ship traffic is “very low 19  Malte Humpert, Arctic Shipping: An Analysis of the 2013 Northern Sea Route Season, The Arctic Institute Center for Circumpolar Security Studies, Washington D.C., October 2014, available at www.thearcticinstitute.org. 20  For a discussion of the Northwest Passage, see Roach and Smith, Excessive Maritime Claims, supra note 1, pp. 312–328, 478–479. 21  Transits of the Northwest Passage to the End of the 2012 Navigation Season. Cambridge: Scott Polar Research Institute (reference in original). A list of 126 full transits (i.e. crossing both the Bering and Davis straits) of the Northwest Passage between 1903 and 2006 appears in J.M. McFarlane, “Full Transits of the Canadian Northwest Passage,” Nauticapedia.ca, 2012, available at http://www.nauticapedia.ca/Articles/NWP_Fulltransits.php. 22  PAME, The Arctic Ocean Review Project, Final Report (Phase II 2011–2013), Kiruna May 15, 2013, p. 26, available at http://pame.is/images/PAME_Ministerial_2013/AOR_ final_report_15_May_2013.pdf (some footnotes omitted).

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by any standard” and predicted future ship traffic is expected to increase but the amount of increase is uncertain.23 2.4 Bering Strait According to the US Coast Guard’s May 2014 Draft Environmental Assessment of Arctic Operations and Training Exercises (Draft EA), the total number of vessels in the Arctic rose from some 120 in 2008 to 250 in 2012, and the number of transits of the Bering Strait rose from 220 in 2008 to 480 in 2012. The growth rate was particularly high for tank vessels; tugs and other cargo vessels were second.24 The Draft EA provides additional detail: Vessel traffic through the Bering Strait has risen steadily over recent years, according to Coast Guard estimates, and Russian efforts to promote a Northern Seas Route for shipping may lead to continued increases in vessel traffic adjacent to the western portion of the EA action area. An analysis done by Shell Oil as part of a Revised Outer Continental Shelf Lease Exploration Plan for the Chukchi Sea25 indicated that barge traffic passing through the Chukchi Sea during the month of July through October has increased from roughly 2,000 miles of vessel traffic in 2006 to roughly 11,500 miles of vessel traffic in 2010. In 2012, over one million tons of cargo transited an Arctic route that reduces thousands of miles off of traditional voyages between the Atlantic and Pacific Oceans.26 Vessel traffic within the EA action area can currently be characterized as traffic to support oil and gas 23  Det Norske Veritas, Report “Specially Designated Marine Areas in the Arctic High Seas,” Report No./DNV Reg No.: 2013–1442/17JTM1D-26 Rev 2, 11 March 2014, p. 45, para. 3.5, available at http://www.pame.is/images/03_Projects/AMSA/Specially_DesignatedMarine_ Areas_in_the_Arctic/AMSA_Specially_Designated_Marine_Areas_in_the_Arctic_final_ report_by_DNV_signed.pdf. 24  US Coast Guard, Draft Programmatic Environmental Assessment: Arctic Operations and Training Exercises Alaska, May 2014 (USCG EA), available at www.uscg.mil/d17/docs/ DRAFT_PROGRAMMATIC_ENVIRONMENTAL_ASSESSMENT.pdf. 25  Revised Outer Continental Shelf Lease Exploration Plan, Chukchi Sea, Alaska, Burger Prospect: Posey Area Block 6714, 6762, 6764, 6812, 6912, 6915, Revision 2, November 2013, 423 p, available from: http://www.boem.gov/uploadedFiles/BOEM/About_BOEM/ BOEM_Regions/Alaska_Region/Leasing_and_Plans/Plans/2013-11-06%20Shell%20 Chukchi%20Sea%20EP%20Revision%202.pdf (reference in the original). 26  United States Coast Guard Arctic Strategy, US Coast Guard, Washington, DC [accessed 26 March 2014], available from: http://www.uscg.mil/seniorleadership/DOCS/CG_Arctic_ Strategy.pdf (reference in the original).

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i­ndustries, barges or cargo vessels used to supply coastal villages, smaller vessels used for hunting and local transportation during the open water period, military vessel traffic, and recreational vessels such as cruise ships and a limited number of ocean-going sailboats. Barges and small cargo vessels are used to transport machinery, fuel, building materials and other commodities to coastal villages and industrial sites during the open water period. The Coast Guard anticipates a continued increase in vessel traffic in the Arctic. Changes in the distribution of sea ice, longer open-water periods, and increasing interest in studying and viewing Arctic wildlife and habitats may support an increase in research and recreational vessel traffic in the proposed action area regardless of oil and gas activity.27 In 2010, the 17th US Coast Guard District in Alaska commenced a “Port Access Route Study” in portions of US waters in the Bering Sea north to the Chukchi Sea. The study area was expanded in December 2014 and proposed within it a voluntary two way route, as follows: (1) A four nautical mile wide, two-way route extending from Unimak Pass in the Aleutian Islands that proceeds Northward through the Bering Sea and Bering Strait before terminating in the Chukchi Sea. (2) A four nautical mile wide, two-way route extending from a location North of the Western side of St. Lawrence Island and near the U.S.-Russian Federation maritime border, then proceeding Northeast to a junction with the first two way route located to the West of King Island. (3) A total of four precautionary areas, each circular and eight nautical miles wide in diameter. Three of these precautionary areas will be located at the starting/ending points of the two-way routes, and the fourth will be located at the junction of the recommended two-way routes. The public comment period ended June 3, 2015.28 3

Geographic Scope of Arctic Waters in the Polar Code

The geographic scope of the draft Polar Code included the northern Bering Sea. Russia proposed for consideration at the International Maritime Organization 27  USCG EA, supra note 24, pp. 4–16. 28  79 Federal Register 72517, 5 December 2014, http://www.gpo.gov/fdsys/pkg/FR-2014-1205/pdf/2014-28672.pdf.

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(IMO)29 Maritime Safety Committee (MSC) meeting in May 2014 (MSC 93) to delete that area from the geographic scope of the Polar Code for the following reasons: . . . . 3 The Russian Federation is of the view that the establishment of geographical boundaries of the scope of application of the Polar Code should be based on the available experience of shipping in polar areas, as well as on the analyses of specific additional hazards defined in section 3 of the Introduction to the Code. 4 The Russian Federation considers that the attribution of the northern part of the Bering Sea to Arctic seas would be erroneous, as its environmental characteristics resemble rather those of non-Arctic freezing seas, such as the Baltic Sea or northern part of the Caspian Sea, which do not have multiyear ice; furthermore, its water area does not belong to high latitude zone, and it cannot be characterised as located remotely from search and rescue services. 5 In addition, ships operating in that area may be generally described as divided in two main groups—ships transiting the Bering Strait and fishing vessels. The latter group includes also vessels supporting fishing vessels operating in the area. Ships transiting the Bering Strait should comply with the requirements of the Polar Code anyway, as they proceed to (or from) polar areas, whereas the typical conditions of operation of ships belonging to the second group (i.e. fishing vessels and vessels effecting their support) imply navigation near the ice edge, thus rendering the application of the Polar Code’s requirements in their entirety impractical, and reducing fishing areas to a significant extent.

29  For information on the IMO see “About IMO,” available at http://www.imo.org/About/ Pages/Default.aspx; T. Mensa, “International Maritime Organization,” in Max Planck Encyclopedia of Public International Law, vol. V, pp. 1001–1009 (2011); and Myron H. Nordquist and John Norton Moore (eds.), Twenty-Third Annual Seminar: Current Maritime Issues and the International Maritime Organization, The Hague: Martinus Nijhoff Publishers, 1999.

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6 The Russian Federation’s many-year experience of shipping along the Northern Sea Route (NSR) effectively confirms appropriateness of the approach described above. The Russian Federation’s national regulations of navigation in the NSR water area always treated the Bering Strait as its boundary, which never affected the safety of navigation in that area in a negative way.30 However, after discussion in plenary, MSC 93 did not agree with this Russian proposal “as the proposal would be a significant change and the boundaries have been agreed previously, which took into account all the hazards in the Arctic area.”31 Thereafter the Russian delegation stated that the environmental characteristics of the northern part of the Bering Sea resembled non-Arctic freezing seas.32 The Intersessional Polar Code Working Group that met in the week prior to MEPC 67 (October 2014) proposed further revisions to the definition of “Arctic Waters”33 with which MEPC 67 agreed and invited MSC 94 to consider them.34 At MSC 94 (November 2014) Norway pointed out that reference in the definition to “the Island of Bjørnøya” lacks coordinates and thus could be interpreted as north of, or south of, or anywhere in the island. Norway proposed inserting coordinates.35 The Polar Code Working Group at MSC 94 introduced coordinates related to Sørkapp, Jan Mayen; the Island of Bjørnøya; and Cap Kanin Nos, for clarification purposes while keeping the names of the places in brackets for reference only.36 The Committee agreed with the changes and requested MEPC 68 (May 2015) be informed of the modifications for harmonization purposes.37 The geographic scope of the Polar Code in the Arctic as approved by MSC 94 is set out in Appendix 1 and illustrated in the introduction to the Polar Code from which the following is reproduced.38 This geographic scope of application includes both national waters and the high seas. 30  IMO document MSC 93/10/9, March 25, 2014, paras. 3–6 (Russia). 31  IMO document MSC 93/22, p. 41, para. 10.25. 32  IMO document MSC 93/22, p. 42, para. 10.26. 33  IMO document MEPC 67/WP.8 Annex 2, p. 2, para. 13. 34  IMO document MEPC 67/20, p. 46, para. 9.26. 35  IMO document MSC 94/3/5, September 12, 2014. 36  IMO document MSC 94/WP.7, p. 3, para. 6. 37  IMO document MSC 94/21, paras. 3.61 and 21.3.1. 38  For the verbal description of the geographic scope of the Polar Code, see SOLAS regulation XIV/1.3 (Appendix 1).

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FIGURE 12.3

4

Scope of the Polar Code in the Arctic as approved by MSC 94. SOURCE: MSC 94/21/ADD.1 ANNEX 6 P. 9, COURTESY OF THE IMO.

Nautical Charting of the Arctic39

The International Convention for the Safety of Life at Sea40 sets out specific charting requirements for Contracting Governments, which today means almost every nation,41 as follows: 39  This section updates the material in Roach and Smith, Excessive Maritime Claims, supra note 1, pp. 485–486. For a brief overview of charting of Arctic waters, see Evert Flier, Director, Norwegian Hydrographic Service IMO workshop presentation “Charting of the Arctic Ocean,” Feb. 28, 2014, available at http://www.imo.org/MediaCentre/HotTopics/ polar/Documents/Arctic2014/13.%20Mr.%20E.%20Flier.pdf. 40  International Convention for the Safety of Life at Sea, 1974, London November 1, 1974, entered into force May 25, 1980, 1184 UNTS 278. 41  As of October 17, 2014, there are 162 States party to SOLAS representing over 98% of the world’s merchant shipping. IMO, Status of Conventions, available at http://www.imo.org/

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Regulation 9—Hydrographic services42 1 Contracting Governments undertake to arrange for the collection and compilation of hydrographic data and the publication, dissemination and keeping up to date of all nautical information necessary for safe navigation. 2 In particular, Contracting Governments undertake to co-operate in carrying out, as far as possible, the following nautical and hydrographic services, in the manner most suitable for the purpose of aiding navigation: .1 to ensure that hydrographic surveying is carried out, as far as possible, adequate to the requirements of safe navigation; .2 to prepare and issue nautical charts, sailing directions, lists of lights, tide tables and other nautical publications, where applicable, satisfying the needs of safe navigation; .3 to promulgate notices to mariners in order that nautical charts and publications are kept, as far as possible, up to date; and .4 to provide data management arrangements to support these services. 3 Contracting Governments undertake to ensure the greatest possible uniformity in charts and nautical publications and to take into account, whenever possible, relevant international resolutions and recommendations.* 4 Contracting Governments undertake to co-ordinate their activities to the greatest possible degree in order to ensure that hydrographic and nautical information is made available on a world-wide scale as timely, reliably, and unambiguously as possible. * Refer to the appropriate resolutions and recommendations adopted by the International Hydrographic Organization. The 2014 US Coast Guard Draft Environmental Assessment43 painted a stark picture of nautical charting in the Arctic: “Large areas of white space on U.S. About/Conventions/StatusOfConventions/Documents/Summary%20of%20Status%20 of%20Conventions.xls. 42  SOLAS Chapter V, July 1, 2002, available at http://r.search.yahoo.com/_ylt=A0SO80po7od Tvg4AKphXNyoA;_ylu=X3oDMTEzdWhoZGVmBHNlYwNzcgRwb3MDMQRjb2xvA2dx MQR2dGlkA1NNRTM4OV8x/RV=2/RE=1401446121/RO=10/RU=http%3a%2f%2fwww .imo.org%2fOurWork%2fFacilitation%2fDocuments%2fSOLAS%2520V%2520on%252 0Safety%2520of%2520Navigation.pdf/RK=0/RS=_vOf12uyutOC58Fy6kb7aeqyTSs-. 43  USGC Draft EA, supra note 24, at 3–28.

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Arctic nautical charts highlight a disturbing fact: less than 1 percent of Arctic waters have been surveyed with modern technology to determine depths and depict hazards to navigation.”44 In 2013 the IHO provided a more comprehensive overview to DE 57 on the status of nautical charts for the Arctic: Status of nautical charting in polar waters . . . . 2 Systematic and complete hydrographic surveys have not been carried out in many polar areas due to their extensive, remote and inhospitable nature. The presence of ice throughout much of the year limits the ability to conduct hydrographic surveys. Increasingly large unsurveyed areas may be becoming available for navigation due to the melting of glaciers and sea ice. . . . 3 The geographical positions of features are often unreliable, and even those correctly placed relative to adjacent features may contain considerable errors if separated by large distances. Some modern charts are based on satellite imagery; however the lack of proper ground control means they are unlikely to have the same accuracy as those covering lower latitudes. Soundings, topographic detail and all other navigational information are generally incomplete. The limited depth information available may be derived from passage soundings or from old and incomplete surveys and may be of poor quality. The seabed in many areas is very irregular, which means that interpolation between charted depths is generally unreliable. 4 Inadequately surveyed areas can be identified on paper charts (and Raster Navigational Charts) using chart source or zone of confidence (ZOC) diagrams. 5 The use of Electronic Chart Display and Information Systems (ECDIS) in polar waters requires the availability of Electronic Navigational Charts (ENCs).45 These must use the WGS 84 [World Geodetic System 1984] 44  Statement compiled from Committee on the Marine Transportation System, “U.S. Arctic Marine Transportation System: Overview and Priorities for Action 2013,” Washington D.C., p. 53 (reference in the original), available at http://www.cmts.gov/downloads/CMTS%20 U%20S%20%20Arctic%20MTS%20Report%20%2007-30-13.pdf. 45  On ECDIS and nautical charts, see http://www.imo.org/OurWork/Safety/Navigation/ Pages/Charts.aspx.

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p­ositioning datum and therefore require the accurate positioning of ­topography, including the coastline, and hydrography based on this datum. At present, few ENCs are available for polar waters in Navigation Purpose bands 3 to 6 (coastal, approach, harbour, and berthing). Although the IHO has been leading an effort to prioritize, encourage and monitor the conduct of hydrographic surveys in the polar regions through its Hydrographic Commission on Antarctica (HCA) and through the Arctic Regional Hydrographic Commission (ARHC), it will take many years for the situation to improve as national priorities generally focus on charting deficiencies at lower latitudes (see MSC/Circ.1179). Impact on navigation 6 Except in limited areas, the chart coverage of polar waters is inadequate for coastal navigation. Therefore, mariners should keep to the charted areas, except in case of absolute necessity. Even in charted areas extra vigilance should be exercised as unsurveyed and uncharted shoals may exist unless the chart is based on modern surveys that include a full search of the sea floor.46 In light of these comments, the IHO proposed the following amendments to the text of the December 2012 draft Polar Code:47 Preamble Add the following new paragraph after 2: The Code acknowledges that the Polar Regions impose additional navigational demands beyond those normally encountered. Except in limited areas, the chart coverage is inadequate for coastal navigation. Therefore mariners should keep to the charted areas, except in case of absolute necessity. Even in charted areas extra vigilance should be exercised as unsurveyed and uncharted shoals may exist unless the chart is based on modern surveys that include a full search of the sea floor. 46  IMO document DE 57/11/24, Jan. 25, 2013, paras. 2–6 (IHO). 47  IMO document DE 57/11/6, Dec. 14, 2012, Report of the Correspondence Group (Norway), Annex 1, Draft International Code [of Safety] for Ships Operating in Polar Waters.

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Sources of hazards In the initial wording of this section, merge and complement items .6 and .7 as follows: .6 remoteness and possible lack of accurate and complete hydrographic data and information, reduced availability of navigational aids and seamarks with increased potential for groundings compounded by remoteness and limited readily deployable SAR facilities; and renumber accordingly item .8. In the alternative wording of this section, replace item .5 with the following text: .5 possible lack of accurate and complete hydrographic data and information, reduced availability of navigational aids with increased potential for groundings compounded by remoteness and limited readily deployable SAR facilities; PART B Insert a new section as follows: Additional guidance to Chapter 9 As the chart coverage of polar waters is generally inadequate for coastal navigation, mariners should exercise extra care to plan and monitor their voyage accordingly, taking due account of the information and guidance in the appropriate nautical publications. They should be familiar with the status of hydrographic surveys and the availability and quality of chart information for the areas in which they intend to operate. They should also be aware of potential chart datum discrepancies with GNSS positioning. They should plan their route through charted areas and well clear of known shoal depths. Deviation from the planned route should be avoided and when operating on the continental shelf the echo-sounder should be working and monitored constantly to detect any sign of unexpected depth variation, especially when the chart is not based on a full search of the sea floor. Independent cross-checking of positioning information (i.e.

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radar and GNSS) should be undertaken at every ­opportunity. Mariners should ensure to report to the relevant charting authority (Hydrographic Office) any information that might contribute to improving the nautical charts and publications.48 The report of the IMO Sub-Committee on Ship Design and Equipment (DE 57), which met March 18–22, 2013, included the following paragraphs in referring the charting issue to the next meeting of the Maritime Safety Committee (MSC 92, June 2013): 11.34 The Sub-Committee considered document DE 57/11/24 (IHO), reporting on the unsatisfactory status of nautical charting in polar waters and the impact this has on navigation and proposing modifications to the draft Polar Code, highlighting the lack of hydrographic data and providing guidance to mariners. 11.35 Many delegations shared the concerns regarding the lack of adequate and reliable cartography expressed in the submission, which posed a significant risk to navigation and had the potential to affect the safety of shipping and search and rescue services in both polar regions. 11.36 Consequently, the Sub-Committee agreed that the document should be considered by the working group, in particular with regard to the responsibility of shipowners. Having noted that the NAV Sub-Committee had already considered chapter 9 (Navigation) of the draft Polar Code and had reported back to the Sub-Committee (see paragraph 11.3.2), the SubCommittee also requested the group to identify in its report relevant matters that should be referred to the NAV Sub-Committee for further consideration. At the same time, the Sub-Committee agreed to bring the matter to the attention of the Committee for consideration and action as appropriate.49 Thereafter the International Hydrographic Organization provided to MSC 92 a similar status report on nautical charting in polar waters: 2 Systematic and complete hydrographic surveys have not been carried out in many polar areas due to their extensive, remote and inhospitable nature. The presence of ice throughout much of the year limits the ability to conduct 48  Id., Annex. 49  IMO document DE 57/25, April 5, 2013, p. 27, paras. 11.34–11.37.

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hydrographic surveys. Increasingly large unsurveyed areas may be becoming available for navigation due to the melting of glaciers and sea ice. . . . 3 The geographical positions of features are often unreliable, and even those correctly placed relative to adjacent features may contain considerable errors if separated by large distances. Some modern charts are based on satellite imagery; however the lack of proper ground control means they are unlikely to have the same accuracy as those covering lower latitudes. Soundings, topographic detail and all other navigational information are generally incomplete. The limited depth information available may be derived from passage soundings or from old and incomplete surveys and may be of poor quality. The seabed in many areas is very irregular, which means that interpolation between charted depths is generally unreliable. 4 Inadequately surveyed areas can be identified on paper charts (and Raster Navigational Charts) using chart source or zone of confidence (ZOC) diagrams. 5 The use of Electronic Chart Display and Information Systems (ECDIS) in polar waters requires the availability of Electronic Navigational Charts (ENCs). These must use the WGS 84 positioning datum and therefore require the accurate positioning of topography, including the coastline, and hydrography based on this datum. At present, few ENCs are available for polar waters in Navigation Purpose bands 3 to 6 (coastal, approach, harbour, and berthing). Although the IHO has been leading an effort to prioritize, encourage and monitor the conduct of hydrographic surveys in the polar regions through its Hydrographic Commission on Antarctica (HCA) and through the Arctic Regional Hydrographic Commission (ARHC), it will take many years for the situation to improve as national priorities generally focus on charting deficiencies at lower latitudes (see MSC/Circ.1179).50 Impact on navigation 6 Except in limited areas, the chart coverage of polar waters is inadequate for coastal navigation. Therefore, mariners should keep to the charted areas, except in case of absolute necessity. Even in charted areas extra vigilance 50  IMO document MSC.1/Circ. 1179, May 24, 2005, Deficiencies in Hydrographic Surveying and Nautical Charting Worldwide and their Impact on Safety of Navigation and Protection of the Marine Environment, does not specifically address the Arctic.

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should be exercised as unsurveyed and uncharted shoals may exists unless the chart is based on modern surveys that include a full search of the sea floor.51 In light of these comments, the IHO proposed the following (slightly revised) amendments to the draft Polar Code as it then stood in 2013: Preamble Add the following new paragraph after 2: The Code acknowledges that the Polar Regions impose additional navigational demands beyond those normally encountered. Except in limited areas, the chart coverage is inadequate for coastal navigation. Therefore mariners should keep to the charted areas, except in case of absolute necessity. Even in charted areas extra vigilance should be exercised as unsurveyed and uncharted shoals may exist unless the chart is based on modern surveys that include a full search of the sea floor. Sources of hazards In the initial wording of this section, merge and complement items .6 and .7 as follows: .6 remoteness and possible lack of accurate and complete hydrographic data and information, reduced availability of navigational aids and seamarks with increased potential for groundings compounded by remoteness and limited readily deployable SAR facilities; and renumber accordingly item .8. In the alternative wording of this section, replace item .5 with the following text: .5 possible lack of accurate and complete hydrographic data and information, reduced availability of navigational aids with increased potential for groundings compounded by remoteness and limited readily deployable SAR facilities; 51  IMO document DE 55/12/24, Jan. 25, 2013 (IHO), paras. 2–6.

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PART B Insert a new section as follows: Additional guidance to Chapter 9 As the chart coverage of polar waters is generally inadequate for coastal navigation, mariners should exercise extra care to plan and monitor their voyage accordingly, taking due account of the information and guidance in the appropriate nautical publications. They should be familiar with the status of hydrographic surveys and the availability and quality of chart information for the areas in which they intend to operate. They should also be aware of potential chart datum discrepancies with GNSS positioning. They should plan their route through charted areas and well clear of known shoal depths. Deviation from the planned route should be avoided and when operating on the continental shelf the echo-sounder should be working and monitored constantly to detect any sign of unexpected depth variation, especially when the chart is not based on a full search of the sea floor. Independent cross-checking of positioning information (i.e. radar and GNSS) should be undertaken at every opportunity. Mariners should ensure to report to the relevant charting authority (Hydro­ graphic Office) any information that might contribute to improving the nautical charts and publications.52 The report of MSC 92 stated: 13.24 Having considered the information provided by IHO, the Committee stressed the utmost importance of adequate charting, not only for the polar regions, but also for all other areas and, recognizing that a collective effort was necessary to improve the situation, encouraged Member States to collect relevant information, especially for remote areas, in support of IHO activities in this regard. Having recalled that DE 57 had already requested the NAV Sub-Committee to consider the matter for polar regions (see paragraph 13.22), the Committee instructed the NAV Sub-Committee to also take the comments made at this session into account in their considerations.53

52  Id., Annex. 53  IMO document MSC 92/26, June 30, 2013, p. 56, para. 13.24.

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Subsequently the Sub-Committee on Safety of Navigation (NAV 59), which met in September 2013, reported on its consideration of the inadequacy of nautical charts in polar areas: 19.11 The Sub-Committee noted that with respect to nautical charts for polar areas, DE 57 having noted that the NAV 58 had already considered chapter 9 (Navigation) of the draft Polar Code, had agreed to bring the matter to the attention of the Sub-Committee and the Committee for consideration and action, as appropriate. 19.12 The Sub-Committee also noted that MSC 92, having noted a statement by IHO (MSC 92/26, paragraphs 13.23 to 13.24), had stressed the utmost importance of adequate charting, not only for the polar regions, but also for all other areas and, recognizing that a collective effort was necessary to improve the situation, had encouraged Member States to collect relevant information, especially on remote areas, and had instructed the NAV Sub-Committee to take those comments into account at the current session. 19.13 The IHO observer stated that the polar regions impose additional navigational demands beyond those normally encountered. Furthermore, noting that some 95 per cent of the polar regions were unsurveyed and that appropriate-scale chart coverage was inadequate for coastal navigation, he said that mariners should navigate with extreme caution and keep, wherever possible, to recognised shipping corridors. Even in these shipping corridors extra vigilance should be exercised, as unsurveyed and uncharted shoals may exist in these areas or in close proximity. Reliance should not be placed on the charted depths. The IHO did not view these shortcomings as charting issues, either paper or ENC/ECDIS, but as much more fundamental, given the lack of primary hydrographic data and information available to support safe navigation. It was the IHO’s position that the objective should be long-term preventive measures in the form of comprehensive high quality hydrographic surveys. The IHO urged the coastal and Antarctic Treaty States to fulfil their SOLAS obligations54 and prioritize the undertaking of primary systematic 54  SOLAS regulation V/9, Hydrographic services (2002) is quoted in the text accompanying note 41 supra.

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h­ ydrographic surveys to provide safe navigable water for all ships operating in the polar regions. Accordingly, as a short-term measure, the IMO recommended that the current status of surveys should be reflected in the Polar Code, as proposed in document DE 57/11/24, and urged the Sub-Committee to endorse its proposal and to invite the Intersessional Working Group on the Polar Code to incorporate that proposal when reviewing the draft at the upcoming meeting. 19.14 The delegation of the Russian Federation stated that it was paying great attention to the Northern Sea Route, particularly with respect to Aids to Navigation, hydrographic surveys and cartography. It was planned that the hydrographic survey area would be increased twofold, and currently eight survey vessels were engaged in survey work in the area of the Northern Sea Route. 19.15 The delegation of Norway agreed with the views expressed by the IHO and suggested that the proposals contained in document DE 57/11/24 could be included in the Polar Code. 19.16 The delegation of Denmark informed the Sub-Committee about the status of charting in Greenland and outlined that efforts were underway for the production of relevant ENCs and paper charts. 19.17 The observer from ICS welcomed the response of all concerned and stated that the matter was one with serious safety implications. 19.18 The Chairman, in his summing up, recognized the enormity of the situation and the scope of the solution. He further stated that there was a need to prioritize areas most in need of surveys. 19.19 The Sub-Committee agreed that the outcome of this consideration should be passed on to the DE Intersessional Working Group scheduled for the first week of October 2013 and that the proposals in document DE 57/11/24 should be included in the Polar Code.55

55  IMO document NAV 59/20, Oct. 1, 2013, pp. 35–36, paras. 19.11–19.19.

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As reported by the IHO to MSC 93, which met in May 2014, “At the Intersessional Working Group on the Polar Code, held from 30 September to 4 October 2013, the Chairman requested the IHO to submit to SDC 1 a slightly amended wording to those contained in document DE 57/11/24. This was agreed by the IHO. Accordingly, the Sub-Committee is invited to consider and approve the amended version set out in the annex.”56 In that annex the IHO proposed the following revised amendments: Preamble 1 Add the following new paragraph after paragraph 2: The Code acknowledges that the Polar Regions impose additional navigational demands beyond those normally encountered. Except in limited areas, the chart coverage is inadequate for coastal navigation. Therefore, mariners should keep to the charted areas, except in case of absolute necessity. Even in charted areas extra vigilance should be exercised as unsurveyed and uncharted shoals may exist unless the chart is based on modern surveys that include a full search of the sea floor. Sources of hazards 2 In the initial wording of the section on Sources of hazards, merge and complement sub-paragraphs .6 and .7 as follows: .6 remoteness and possible lack of accurate and complete hydrographic data and information, reduced availability of navigational aids and seamarks with increased potential for groundings compounded by remoteness and limited readily deployable SAR facilities; Sub-paragraph .8 is renumbered accordingly. 3 In the alternative wording of the section, replace sub-paragraph .5 with the following text: .5 possible lack of accurate and complete hydrographic data and information, reduced availability of navigational aids with increased 56  IMO document SDC 1/3/13, Nov. 20, 2013, para. 6 (IHO).

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p­ otential for groundings compounded by remoteness and limited readily deployable SAR facilities; Additional guidance to chapter 10 As the chart coverage of polar waters is generally inadequate for coastal navigation, mariners should exercise extra care to plan and monitor their voyage accordingly, taking due account of the information and guidance in the appropriate nautical publications. They should be familiar with the status of hydrographic surveys and the availability and quality of chart information for the areas in which they intend to operate. They should also be aware of potential chart datum discrepancies with GNSS positioning. They should aim to plan their route through charted areas and well clear of known shoal depths, following established routes whenever possible. Deviation from the planned route should be avoided undertaken with particular caution and when operating on the continental shelf the echosounder should be working and monitored constantly to detect any sign of unexpected depth variation, especially when the chart is not based on a full search of the sea floor. Independent cross-checking of positioning information (i.e. radar and GNSS) should be undertaken at every opportunity. Mariners should ensure to report to the relevant charting authority (Hydrographic Office) any information that might contribute to improving the nautical charts and publications.57 In a paper submitted to MSC 93, Australia, New Zealand and the IHO noted the outcome of SDC 158 and supported the full suite of amendments, as follows: 7 At the first session of the Sub-Committee on Ship Design and Construction (SDC), the IHO presented document SDC 1/3/13, which contained the requested slightly amended wording. Although time did not allow for the full discussion of the preamble or chapter 10, the co-sponsors of this submission consider that the outcome of MSC 92 and NAV 59 were sufficient for the text to be inserted without further amendment. However, the draft agreed in principle by SDC 1 (SDC 1/26, paragraph 3.69) includes only the paragraph of the text proposed by the IHO related to the section on “Sources of hazards”.

57  Id., Annex. 58  IMO document SDC 1/26, Feb. 11, 2014.

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The paper proposed that the remainder of the text originally proposed by the IHO be included in the draft Polar Code.59 The Working Group at MSC 93 considered these proposals and the comments made in plenary and agreed to add a new paragraph to the preamble acknowledging that polar waters impose additional navigational demands and that in many areas the chart coverage “may not currently be adequate for coastal navigation.”60 Consequently, the Polar Code as approved, in principle, by MSC 93, included the following texts on charting of polar waters. New paragraph 2bis (renumbered as 3) of the Preamble provides: The Code acknowledges that the Polar Waters impose additional navigational demands beyond those normally encountered. In many areas, the chart coverage may not currently be adequate for coastal navigation. It is recognized even existing charts may be subject to unsurveyed and uncharted shoals.61 In addition, the draft Introduction to the Polar Code identifies poor charting as one of the sources of hazards to navigation in polar waters due to the “remoteness and possible lack of accurate and complete hydrographic data and information. . . .”62 Additional guidance in Part I-B on this issue provides: 10.2 As the chart coverage of polar waters in many areas may not currently be adequate for coastal navigation, navigational officers should: .1 exercise care to plan and monitor their voyage accordingly, taking due account of the information and guidance in the appropriate nautical publications; .2 be familiar with the status of hydrographic surveys and the availability and quality of chart information for the areas in which they intend to operate; .3 be aware of potential chart datum discrepancies with GNSS positioning; and

59  IMO document MSC 93/10/11, March 25, 2014 (Australia, New Zealand, IHO). 60  IMO document MSC 93/WP.7/Add.1, para. 4. 61  IMO document MSC 93/22/Add.3, p. 4, para. 2bis (Preamble). Renumbered as para. 3 by MEPC 67/WP.14, Annex 1, p. 1. 62  IMO document MSC 93/22/Add.3, Annex 24, p. 6, para. 3.6 (Introduction).

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.4 aim to plan their route through charted areas and well clear of known shoal depths, following established routes whenever possible.63 As adopted at MSC 94 (November 2014), paragraph 3 of the Preamble to the Polar Code now provides: 3 The Code acknowledges that the Polar Waters impose additional navigational demands beyond those normally encountered. In many areas, the chart coverage may not currently be adequate for coastal navigation. It is recognized even existing charts may be subject to unsurveyed and uncharted shoals. The adopted Introduction includes the same hazards warning (in paragraph 3.1.6) about the “remoteness and lack of accurate and complete hydrographic data and information.” However, the guidance in Part I-B no longer includes mention of charting deficiencies. 4.1 US National Charting Efforts The US National Oceanic and Atmospheric Administration (NOAA) is responsible for the charting of US waters. In its Arctic Action Plan 2014, NOAA set out its plans for charting Arctic waters: NOAA plans to survey annually at least 500 square nautical miles (1,700 square kilometers) of the navigationally significant 240,000 square nautical miles (823,000 square kilometers) in the U.S. Arctic and map 390 linear miles (630 kilometers) of shoreline each year for nautical chart updates and navigation safety. . . . Partners with survey-capable vessels such as the U.S. Coast Guard, U.S. Navy, the academic fleet, and private industry may be able to collect survey data en route between Dutch Harbor and the Arctic Ocean for analysis and charting by NOAA. These efforts will aim to accelerate and enhance the acquisition and processing of U.S. Arctic bathymetric data. The highest priority focus of this effort will be 40,000 square nautical miles (137,000 square kilometers) in need of surveys to delineate a safety corridor from the Aleutian Islands to the Beaufort Sea, which would otherwise take 50–80 years to accomplish at the current level of effort. Employing this integrated mapping concept will result in more accurate data and charts along the most-utilized Arctic open water routes, allowing NOAA to focus its resources 63  IMO document MSC 93/22/Add.3, Annex 24, pp. 34–35, para. 10.2.

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on the more challenging coastal areas for harbors of refuge, port access, and coastal community resilience.64 In light of these developments the eight members of the Arctic Council have negotiated two international agreements on search and rescue (SAR) and oil pollution, and the circumpolar Arctic 5 States are dealing with fisheries in the Arctic Ocean. We turn to those next in that order. 5

Arctic International Agreements

5.1 Search and Rescue In 2011 the Arctic 8 signed the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic.65 The objective of the agreement is to strengthen cooperation and coordination in air and maritime SAR operations in Arctic. The parties to the agreement are the eight members of the Arctic Council: Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States. The agreement is based on the 1979 IMO SAR Convention,66 Annex 12 to ICAO (Chicago) Convention,67 and Article 98(2) of the LOS Convention.68 The agreement entered into force in 2013. The Arctic Search and Rescue Regions of the parties is illustrated below: 64  NOAA, “NOAA’s Arctic Action Plan: Supporting the National Strategy for the Arctic Region,” April 2014, pp. 17 & 18, available at www.arctic.noaa.gov/NOAAarcticactionplan2014.pdf. 65  Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, Nuuk Greenland May 12, 2011, entered into force Jan. 19, 2013, TIAS 13–119, 50 ILM 1119 (2011), available at http://www.arctic-council.org/index.php/en/document-archive/ category/20-main-documents-from-nuuk?download=73:arctic-search-and-rescue-agreement-english and www.state.gov/documents/organization/205770.pdf. For background on the negotiations of this agreement see Roach and Smith, Excessive Maritime Claims, supra note 1, pp. 481–483. 66  International Convention on Maritime Search and Rescue, 1979, with annex, Hamburg April 27, 1979, entered into force June 22, 1985, TIAS 11093, 1405 UNTS 195, available at http://treaties.un.org/doc/Publication/UNTSVolume%201405/volume-1405-I-23489English.pdf; as amended available at http://www.admiraltylawguide.com/conven/search rescue1979.htm and http://www.admiraltylawguide.com/conven/amendsearch1998.html. 67  Convention on International Civil Aviation, Chicago Dec. 7, 1944, entered into force April 4, 1947, 61 Stat. 1180, TIAS 1591, 3 Bevans 944, 15 UNTS 295, available at http:// www.icao.int/icaonet/arch/doc/7300/7300_9ed.pdf. 68  Article 98 of the LOS Convention provides: Duty to render assistance 1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:

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Arctic search and rescue agreement areas of application. SOURCE: https://en.wikipedia.org/wiki/Arctic_Search_and_Rescue_ Agreement#/media/File:Arctic_search_and_rescue_agreement_-_ areas_of_application_-_illustrative_map.gif.

5.2 Arctic Oil Pollution Agreement In 2013 the Arctic 8 signed the Agreement on Cooperation on Marine Oil (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. 2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.

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Pollution Preparedness and Response in the Arctic.69 The agreement is based on the LOS Convention and 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation.70 The objective of the agreement is to strengthen cooperation, coordination and mutual assistance among the Parties on oil pollution preparedness and response in the Arctic in order to protect the marine environment from pollution by oil. The appendices include a listing of the competent national authorities, national points of contact, and the authorities empowered to request/decide on assistance, as well as detailed operational guidelines. The agreement will enter into force after all Arctic 8 countries consent to be bound by it. 5.3 Arctic Fisheries Officials from the Arctic 5—Canada, the Kingdom of Denmark, the Kingdom of Norway, the Russian Federation and the United States—met in Nuuk, Greenland from February 24–26, 2014 to continue discussions toward the development of interim measures to prevent unregulated fishing in the central Arctic Ocean and to continue discussion of related scientific matters. At that meeting, the five Arctic littoral States temporarily banned fishing in the high seas of the Arctic Ocean until a regulatory system is established.71 The Chairman’s statement provided the following details of their meeting:

69  Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, with appendices, Kiruna Sweden May 15, 2013, enters into force 30 days after Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the USA all have consented to be bound. The text is available at http://www.arctic-council.org/index .php/en/document-archive/category/425-main-documents-from-kiruna-ministerialmeeting?download=1942:agreement-on-cooperation-on-marine-oil-pollution-preparedness-and-response-in-the-arctic-final-formatted-version. 70  International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990, London Nov. 30, 1990, entered into force May 13, 1995, 1891 UNTS 77, available at http://treaties.un.org/doc/Publication/UNTS/Volume%201891/volume-1891-I-32194English.pdf; http://fletcher.tufts.edu/multi/texts/BH981.txt; and http://www.admiralty lawguide.com/conven/polpolresponse1990.html. All of the Arctic 8 States are party to the 1990 OPPRC. 71  http://www.oceansnorth.org/resources/chairmans-statement-meeting-arctic-fisheriesnuuk-greenland-february-2014.

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Scientific Matters At the meeting in Nuuk, officials reviewed the outcomes of the 2nd Scientific Meeting on Arctic Fish Stocks held in Tromsø, Norway 28–31 October 2013 and decided on next steps to continue to advance scientific understanding of living marine resources and their ecosystems in the Arctic Ocean. They agreed: to continue to promote scientific research, and to integrate scientific knowledge with traditional and local knowledge, with the aim of improving understanding of the living marine resources of the Arctic Ocean and the ecosystems in which they occur; to promote cooperation with relevant scientific bodies, including but not limited to the International Council for the Exploration of the Sea (ICES) and the North Pacific Marine Science Organization (PICES); and to hold a 3rd Scientific Meeting no later than the end of 2015 and to finalize in the coming weeks terms of reference for that meeting.

• • •

Interim Measures The meeting reaffirmed that, based on available scientific information, commercial fishing in the high seas area of the central Arctic Ocean is unlikely to occur in the near future. The meeting therefore also reaffirmed that there is no need at present to develop any additional regional fisheries management organization (RFMO) or arrangement for this area. The meeting agreed on the desirability of developing appropriate interim measures to deter unregulated fishing in the future in the high seas area of the central Arctic Ocean. Such interim measures will recognize that at least one existing RFMO [regional fisheries management organization]—the North-East Atlantic Fisheries Commission (NEAFC)—has the competence to adopt fisheries conservation and management measures in a portion of this high seas area, should such fisheries take place there. The interim measures will neither undermine nor conflict with the role and mandate of any existing international mechanism relating to fisheries, including NEAFC.

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Based on a proposal from the United States, which was developed further during the meeting, officials of the five States agreed that the necessary interim measures will: Apply to the single high seas portion of the central Arctic Ocean that is entirely surrounded by waters under the fisheries jurisdiction of Canada, the Kingdom of Denmark in respect of Greenland, the Kingdom of Norway, the Russian Federation and the United States of America. Commit States participating in the interim measures to: authorize their vessels to conduct commercial fishing in this high seas area only pursuant to one or more regional or subregional fisheries management organizations or arrangements that are or may be established to manage such fishing in accordance with modern international standards; establish a joint program of scientific research with the aim of improving understanding of the ecosystems of this area; coordinate their monitoring, control and surveillance activities in this area; and ensure that any non-commercial fishing in this area does not undermine the purpose of the interim measures, is based on scientific advice and is monitored, and that data obtained through any such fishing is shared; encourage other States to take measures in respect of vessels entitled to fly their flags that are consistent with the interim measures; and not prejudice the rights, jurisdiction and duties of States under relevant provisions of international law as reflected in the 1982 United Nations Convention on the Law of the Sea, or the 1995 UN Fish Stocks Agreement, nor alter the rights and obligations of States that arise from relevant international agreements.

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• • • • •

•

The Way Forward The meeting agreed that it is appropriate for the States whose exclusive economic zones border the high seas area in question to take the initiative on this matter. They also continued to recognize the interests of Arctic residents, particularly the Arctic indigenous peoples, in these matters and to engage with them as appropriate.

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The meeting agreed to develop a Ministerial Declaration for signature or adoption by the five States based on the provisions described above. The meeting expressed the desire to finalize the Ministerial Declaration for signature or adoption in June 2014. The meeting also reaffirmed that other States may have an interest in this topic and looked forward to a broader process involving additional States beginning before the end of 2014. The purpose would be to develop a set of interim measures, compatible with the Ministerial Declaration, that would include commitments by additional States. The final outcome could be a binding international agreement.72 Previously, in 2009, the United States had prohibited commercial fishing in the US Arctic EEZ.73 6

Developing the Polar Code

We now turn to consider several issues that arose in developing the Polar Code as a mandatory instrument. We turn first to the issue of to which ships will the Polar Code apply. 6.1 Applicability to Ships Regulation 2 of SOLAS Chapter XIV, Safety measures for ships operating in polar waters (Polar Code), as adopted at MSC 94, addresses to which ships the Polar Code applies, and to which it does not apply. Regulation XIV/2.1 provides that “[u]nless expressly provided otherwise, this chapter applies to ships operating in polar waters, certified in accordance with chapter I [of SOLAS].” The regulation goes on to provide that the Code applies to ships constructed before January 1, 2017, the date of entry into force of the Code, by the first intermediate or renewal survey, whichever occurs first, after one year after January 1, 2018.74 During earlier discussion in plenary, MSC 93 agreed with the Chairman’s understanding 72  Arctic 5 Chairman’s Statement, Feb. 20, 2014, available at http://www.oceansnorth.org/ sites/default/files/attachments/Chairman%27s%20Statement%20from%20Nuuk%20 Meeting%20February%202014.pdf. 73  See https://alaskafisheries.noaa.gov/sustainablefisheries/arctic/. 74  IMO document MSC 94/21/Add.1, Annex 7, p. 4.

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that the intention of the Organization was to apply the provisions of the Polar Code to new and existing ships certificated under the SOLAS Convention, whether or not such ships are engaged on international voyages. With this understanding, non-SOLAS ships that operate in polar waters would not be required to meet the Code requirements, but may do so.75 At DE 55, March 2011, the Sub-Committee had agreed, in principle, that a two-step approach should be taken, i.e., the Code should initially apply to SOLAS passenger and cargo ships, taking into account the urgent need for relevant mandatory requirements, and later requirements for non-SOLAS ships, such as fishing vessels, may be developed, after consideration by the Organization.76 This agreement was confirmed by DE 56 and repeated by New Zealand at DE 57 and MSC 91.77 In this regard it should be noted that the applicability limitations in SOLAS Chapter I are each caveated “unless expressly provided otherwise.” Query if that requirement is met in agreeing for the record without including it in the text of the regulation that the Polar Code applies to ships not on international voyages as specified in SOLAS regulation I/(a). On the other hand, when work turns to Phase 2, it would be prudent for any amendment to SOLAS Chapter XIV to apply the Polar Code to fishing vessels or vessels below 500 GT explicitly to meet this requirement of SOLAS Chapter I. The failure to provide “expressly” that the Polar Code applies to SOLAScertified ships on purely domestic voyages (or later to non-SOLAS vessels and fishing vessels) suggests that Canada and Russia may not be legally obligated to apply Part I of the Polar Code to those ships not operating on international voyages in the NWP or NSR respectively, and that they would be free to apply their domestic safety regulations to those vessels. The applicability regulations of the draft amendments to MARPOL Annexes I, II, IV and V are variously worded, but do contain most of the elements of SOLAS regulation XIV/2.1:78 75  IMO document MSC 93/22, p. 40, para. 10.20. 76  IMO document DE 55/22, April 15, 2011, p. 23, para. 12.7.1. 77  IMO documents DE 56/25, Feb. 28, 2012, p. 22, para. 10.7; DE 57/25, April 5, 2013, p. 23, para. 11.7 (New Zealand); MSC 91/22, Dec. 17, 2012, p. 35, para. 8.5 (New Zealand). 78  IMO document MEPC 67/WP.14 Annex 2.

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Annex I, regulation 47: “This chapter [11] applies to all ships operating in polar waters.” Annex II, regulation 22: “This chapter [10] applies to all ships certified to carry noxious liquid substances in bulk, operating in polar waters.” Annex IV, regulation 18: “This chapter [7] applies to all ships operating in polar waters certified in accordance with this Annex.” Annex V, regulation 14: “This chapter [3] applies to all ships to which this annex applies, operating in polar waters.” The Polar Code Working Group had “agreed to use the same approach as approved by the MSC with regard to the application provisions for part I-A.”79 6.2 Application to Government Ships SOLAS Regulation XIV/2.4, as adopted at MSC 94, provides that Chapter XIV shall not apply to ships owned or operated by a Contracting Government and used, for the time being, only in Government non-commercial service. However, ships owned or operated by a Contracting Government and used, for the time being, only in Government non-commercial service are encouraged to act in a manner consistent, so far as reasonable and practicable, with this chapter.80 The issue of whether the Code should apply to government ships was first raised at SDC 1 at the beginning of 2014. That history is recounted next. A number of chapters in SOLAS already provide that they do not apply to government ships. SOLAS 1974 Regulation I/3(a)(i), Exceptions, provides that “[t]he present Regulations, unless expressly provided otherwise, do not apply to [s]hips of war and troopships.” The original regulation V/1 on safety of navigation provided that Chapter V does not apply to “ships of war”. The 2007 revision of SOLAS Chapter V provides in Regulation V/1.1.1: “Unless expressly provided otherwise, this chapter shall apply to all ships on all voyages except . . . warships, naval auxiliaries and other ships owned or operated 79  IMO document MEPC 67/WP.14, p. 5, para. 27. 80  IMO document MSC 94/21/Add.1, Annex 7, p. 4. The text of regulation XIV/2.4 is obviously adapted from LOS Convention article 236 and widely appears/copied in various IMO conventions. See further text following note 84 infra.

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by a Contracting Government and used only on government non-commercial service”. SOLAS Regulation IX/2.2 provides that the ISM Code does not apply to “government-operated ships used for commercial purposes.” SOLAS Regulation X/1.3.5.1 provides that the High Speed Craft Code, “unless expressly provided otherwise, does not apply to . . . craft of war and troop craft.” SOLAS Regulation XI-2/3.3 provides that the ISPS Code “does not apply to warships, naval auxiliaries or other ships owned or operated by a Contracting government and used only on Government non-commercial service.” During the debate at SDC 1, In considering whether to apply the [Polar] Code to ships owned and/or operated by a State, the Sub-Committee, having considered the following two options: .1 not to apply the Code to warships, naval auxiliary or other ships owned or operated by a State and used only on government non-commercial service; or .2 not to apply the Code to warships, naval auxiliary or other ships owned or operated by a State and used only on government n­ on-commercial service, but to encourage such ships to act in a manner consistent with the Code, so far as reasonable and practicable, decided not to include relevant text within the Code since there was no clear majority for either of the above two options.81 In its submission to MSC 93 on this issue, Argentina stated: The operation of ships belonging to a State differs significantly from that of commercial ships. The latter [sic] are not normally certificated under the SOLAS Convention and are exempted from part II-A of the Code under article 3.3 of the MARPOL Convention. In order to be consistent, it is necessary to exclude these ships also from part I-A and to reinsert paragraph 5, regulation 2 of document SDC 1/WP.3 extracted from paragraph 1.2.1, chapter 1, prepared by the working group (SDC1/INF.10).82

81  IMO document SDC 1/26, supra note 57, para. 3.29. 82  IMO document MSC 93/10/3, March 14, 2014, para. 14 (Argentina).

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Argentina proposed that regulation 2 include the following text: This chapter shall not apply to ships owned or operated by a State and used, for the time being, only on governmental non-commercial service. However, each State shall ensure, through appropriate measures that do not jeopardize the operations or operational capacity of such ships, whether owned or operated by it, that they act in a manner compatible with the Code, provided this is reasonable and practicable.83 The Working Group at MSC 93 agreed in principle with the Argentinean proposal, and included it with editorial changes in Chapter XIV, as Regulation 2/4, taking into account SOLAS regulation V/1.1 (Application), as follows: This chapter shall not apply to ships owned or operated by a Contracting Government and used, for the time being, only in Government noncommercial service. However, ships owned or operated by a Contracting Government and used, for the time being, only in Government noncommercial service are encouraged to act in a manner consistent, so far as reasonable and practicable, with this chapter.84 The Working Group decided to omit the words “warships, naval auxiliaries and other” as they were already covered in SOLAS regulation I/3 (Exceptions). In this context, “the group noted it was a legal matter to ensure that this intent was captured.”85 As quoted above, the Committee agreed, and that text was adopted by MSC 94. As noted above, this text is based on SOLAS regulation V/1.1; but it should be noted that it is weaker than LOS Convention article 236 which requires States “to ensure, by the adoption of appropriate measures not impairing operations or operational capabilities” of its ships that they “act in a manner consistent, so far as is reasonable and practicable, with the LOS Convention.” Also as noted above by Argentina, article 3(3) of MARPOL 1973 provides: (3) The present Convention shall not apply to any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government non-commercial service. However, each Party shall ensure by the adoption of appropriate measures not impairing the 83  Id., para. 16. 84  IMO document MSC 93/WP.7, May 16, 2014, para. 7 and Annex, p. 2. 85  Id., para. 7.

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operations or operational capabilities of such ships owned or operated by it, that such ships act in a manner consistent, so far as is reasonable and practicable, with the present Convention. Consequently, and in contrast to SOLAS provisions, the amendments to MARPOL Annexes I, II, IV and V did not need to address this issue. 6.3 Seafarer Training At present there are no specific requirements for training and certification standards and crew qualifications for ships operating in the Arctic or Southern Oceans, particularly for the ice navigator.86 The first meeting of the new Sub-Committee on Human Element, Training and Watchkeeping (HTW) (formerly STW) (17–24 February 2014) formally endorsed the draft chapter [13 (now 12)] of the Polar Code on manning and training familiarity for ships operating in polar waters. HTW 1 also progressed work in developing amendments to update certification and training requirements for officers and crew serving on board ships operating in polar waters in chapter V of the annex to the STCW Convention, to reflect the training requirements in the draft chapter. As the sub-committee meets only once a year, work on the amendments will resume on February 5, 2015 (Agenda Item 9).87 These amendments can be expected to enter into force through the tacit usual IMO acceptance procedure. At HTW 1, Russia explained its views on the training requirements for ice navigators: For ice navigators, main focus should be put not only on the theoretical training and preparation, but first of all on the practical experience of independent navigation in polar waters, that could serve as a basis for certification. Clear criteria shall be defined of the number of hours in the stated period of time that will be recognized as such practical experience. On board a ship operating in polar waters there should be an adequate number of certified ice navigators so that, where necessary, a 24-hour watch in polar waters could be performed; the minimum number of people shall be

86  Initial efforts to include training provisions in the Polar Code are recounted in Roach, “A Note on Making the Polar Code Mandatory,” in Suzanne Lalonde and Ted L. McDorman, International Law and Politics of the Arctic Ocean: Essays in Honor of Donant Pharand (Martinus Nijhoff, 2015) 125, at 133–135. 87  IMO document HTW 1/21, March 7, 2014, para. 11.6 and Annex 3.

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defined by the work and rest requirements in the Maritime Labour Convention and STCW Convention, 1978, as amended.88 At MSC 93 (May 2014) this issue was revisited. Canada proposed that the chapter on manning and training familiarity be amended to include authorization for an ice navigator, not a regular member of the crew, to be on the bridge to provide advice.89 The Committee did not agree to refer this proposal to the working group, “as there was extensive discussion at HTW 1 and it would not be appropriate to reopen the discussion at the current stage.”90 In response to this decision Canada replied in part: Safety may be enhanced by providing such vessels with the flexibility to use certificated personnel to provide the Master and officers of the watch with supplementary expert assistance in ice navigation. This can be in lieu of having the vessel’s bridge officers certificated for polar waters. Ice navigators have been and are being used successfully throughout the Arctic and in the Antarctic. Several major and long-standing operations in both Canada and in other areas now use this approach. In current practice, the ice navigator enhances safe navigation by assisting the Master and Navigating Officers with the evaluation of the ice conditions against the vessel’s capability in ice, and provides expert input on route selection, safe speed and other operational decisions. The ice navigator provides the flexibility, choice and the ability for owners to make decisions appropriate for their vessel and their operations. Most of the voyages involved are carried out only in times when the ice cover is at its seasonal minimum. However, ice of land origin is often present and ice concentrations can be greater than open waters, particularly in the shoulder seasons. These conditions trigger the Code requirements for officer qualifications. The proposed ice navigator would have provided an option for these types of circumstances. The decision of MSC not to reconsider this option will have several unintended outcome[s], which will be accentuated by the ongoing increase in polar activities in the resource development sector. 88  IMO document HTW 1/21 Annex 12, p. 1. 89  IMO document MSC 93/11/2, March 25, 2014 (Canada). 90  IMO document MSC 93/22, p. 45, para. 10.38.

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Owners of ships making only occasional voyages in polar waters may be reluctant to commit to specialized training for their officers. Preventing the use of supplementary crew may tend to reduce the general pool of officers available to undertake polar voyages. On the other hand, if personnel are trained but have little opportunity to exercise their training, they may lose capability before an actual voyage. An ice navigator is more likely to offer current expertise and local knowledge.91 We next examine the effect of the IMO’s new goal-based approach in developing new regulations. 6.4 Goals vs. Prescriptive Requirements In keeping with other efforts at IMO, the draft Polar Code employs a risk-based and goal-based standards (GBS) approach. Its purpose is to give sufficient flexibility for alternative designs and approaches. However, the functional requirements in the GBS approach need to be linked to existing (or include) prescriptive requirements in SOLAS and MARPOL. Otherwise, the functional requirements will not be legally enforceable. The United States, in two papers to MSC 93 and the Marine Environment Protection Committee (MEPC 66, April 2014), proposed different solutions to this problem due to the inherent differences in Parts I-A (safety) and II-A (pollution prevention) of the draft Polar Code.92 As Part II-A was dealt with first at the Committee level (MEPC in April and October 2014 and Part I-A at MSC later in May and November 2014), we turn first to Part II-A. The report of MEPC 66 described the decisions to delete the goals and functional requirements from Part II-A and that each chapter in Part II-A should consist only of prescriptive requirements: Goal-based approach 11.23 The Committee recalled that SDC 1, having noted concerns that the goal of MARPOL is wider than that of the Polar Code, had agreed to refer the matter to the Committee for further consideration. 11.24 In this connection, the Committee considered document MEPC 66/11/13 (United States), proposing to delete or clarify functional requirements 91  IMO document MSC 93/22/Add.3 Annex 32, pp. 4–5 (statement of Canada). 92  IMO documents MSC 93/10/16, March 25, 2014, and MEPC 66/11/13, Feb. 21, 2014 (USA).

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in part II-A because of the perceived ambiguity as to the legal obligations of Member Governments. 11.25 In the ensuing discussion, the majority of the delegations that spoke supported the proposal by the United States, stressing that the goal-based approach is not suitable for the environmental part of the Code and that the Committee should focus on approving appropriate prescriptive provisions. 11.26 Several other delegations suggested that the goal-based approach should be retained in the environmental part of the Code, as it had been agreed since the beginning of its development. Those delegations were of the view that goal-based standards are clear, verifiable, long-standing and implementable, providing sufficient flexibility for alternative designs and arrangements and encouraging technology development in the long term. 11.27 Following consideration, the Committee agreed to delete the goals and functional requirements from part II-A of the Code and that each chapter in that part should consist only of prescriptive requirements. The Committee further agreed that any interested parties wishing to explore the future use of the draft goals and functional requirements, as set out in annex 3 to document SDC 1/26, should submit a proposal for a new output, in accordance with the Committees’ Guidelines, to the Committee for consideration.93 No effort was made at the Intersessional Polar Code Working Group that met just before MEPC 67 in early October 2014 to reverse that decision, and instead focused on improving the wording of the prescriptive requirements of Part II-A.94 MEPC 67 decided that the application provisions in each chapter of Part II-A should be deleted “since the associated amendments to relevant MARPOL Annexes already set out the application for each corresponding chapter in part II-A of the draft Polar Code.95 As instructed, the Polar Code Working Group at MEPC 67 then deleted the application provisions of each chapter of Part II-A.96

93  IMO document MEPC 66/21, April 25, 2014, p. 51, paras. 11.24–11.27. 94  IMO document MEPC 67/WP.8, Oct. 9, 2014. 95  IMO document MEPC 67/20, p. 45, para. 9.18. 96  IMO document MEPC 67/WP.14, para. 8.

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The United States saw the solution to the problem in Part I-A was more complicated. In its paper on this subject to MSC 9397 the United States pointed out that: 8 . . . . Terms indicating a legally binding intent (like “shall” and “in order comply with the functional requirements” ) are often used, but if the functional requirements give rise to legal obligations, there is no agreed provision like the ones in SOLAS chapter II-2 clarifying the general relationship between functional and prescriptive requirements, and what, if anything, a ship must do to comply the functional requirements beyond what is specified in prescriptive requirements. Some language in the draft part I-A supports the understanding that compliance with prescriptive requirements necessarily constitutes compliance with certain functional requirements— such as the chapeau introducing “functional requirements” in several chapters (“in order to achieve the goal set out in paragraph X.X.X. above, the following functional requirements are embodied in the regulations of this chapter as appropriate,” though the phrase “as appropriate” should be deleted for clarity) and the chapeau language for associated prescriptive requirements (“In order to comply with the functional requirements of paragraph X.X.X. above, the following apply”). But other provisions lack such chapeau language, as though the functional requirements could create the need to take measures beyond those specified in prescriptive requirements, and in any event it is not specified expressly that compliance with all the prescriptive requirements constitutes compliance with the associated functional requirements. Paragraph 5.4 of the Introduction contains an alternative that offers one approach, but remains in brackets. 9 In sum, this lack of consistency in labelling and framing the functional requirements and prescriptive requirements of each chapter, and the ambiguity concerning the precise legal relationship between the functional requirements and the prescriptive requirements, creates significant confusion about the intended legal nature of the functional requirements. Such confusion could give rise to differing interpretations by various flag and port States, undermining the effectiveness and efficiency of the Polar Code. 10 In addition to the concerns raised above, the United States notes that the draft Polar Code contains functional requirements for which no prescriptive requirements have been developed. Specific reference is made to the 97  IMO document MSC 93/10/16, supra note 91.

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f­unctional requirements listed below [omitted]. As outlined in MSC.1/ Circ.1394, the goals and functional requirements are presented as “Rules for Rules”, where compliance is demonstrated separately through regulations developed based on these “Rules for Rules.” There exists no clarity as to the method for demonstrating compliance with these specific functional requirements. This presents the undesirable situation for Administrations to certify compliance with these functional requirements without prescriptive regulations and the lack of guidance and clarity surrounding the use of GBS in the draft Code. In addition, there exists the opportunity for varying interpretations of the functional requirements by different port States beyond what was considered adequate for compliance by the Administration. The United States then proposed a number of changes to meet these difficulties: A solution to provide legal clarity 11 For the reasons discussed above, the United States is of the view that greater clarity needs to be brought to the use of functional requirements in part I-A of the draft Code. Specifically, instead of paragraph 5.4 of the Introduction, the United States proposes that chapter 1 of part I-A include the following language, similar to the approach in SOLAS chapter II-2, regulation 3: Each chapter in this part consists of the overall goal of the chapter, functional requirements to fulfill the goal, and prescriptive requirements. A ship shall be considered to meet a functional requirement set out in this part when either: .1 the ship’s design and arrangements comply with all the prescriptive requirements associated with that functional requirement; or .2 part(s) or all of the ship’s relevant design and arrangements have been reviewed and approved in accordance with regulation 4 of SOLAS chapter XIV, and any remaining parts of the ship comply with the relevant prescriptive requirements. 12 In addition, functional requirements without any associated prescriptive requirement should be carefully considered, with specific prescriptive requirement(s) developed for these functional requirements. If no specific

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regulations can be developed the functional requirement should be reframed as a prescriptive requirement. 13 The United States also notes that consistent language should be used regarding functional and prescriptive requirements in each chapter of part I-A. Functional requirements should consistently be introduced with: In order to achieve the goal set out in paragraph X.X.X. above, the following functional requirements are embodied in the regulations of this chapter: 14 The prescriptive requirements should be referred to by a consistent term, instead of the current variation in terms such as “regulations,” “requirements,” and “regulations/requirements.” Each prescriptive requirement should be expressly linked to a functional requirement, and can begin with “In order to comply with the functional requirement of paragraph X.X.X. above. . . .”98 After debate in plenary, MSC 93 instructed the working group to consider further these proposals.99 The working group “punted,” inviting MSC 93 to refer this matter to NSCR 1 “for consideration in conjunction with the finalization of chapters 10 and 11 [now 9 and 10] of the draft Polar Code.”100 MSC 93 agreed.101 The first meeting of the new Sub-Committee on Navigation, Communications and Search and Rescue (NCSR 1) met June 30–July 4, 2014. The Sub-Committee considered two United States proposals, MSC 93/10/16 and NCSR 1/23/1, April 25, 2014, the latter proposing amendments to the chapter on communications. NCSR 1 endorsed the draft revised chapters by the SAR Working Group (NCSR 1/WP.5/Add.1—communications chapter 10) and by the Ship’s Routeing Working Group (NCSR 1/WP.6/Add.1—safety of navigation chapter 9), inviting MSC 94 to approve them.102 MSC 94 in November 2014 approved those revisions.103 98  Id., paras. 11–14. 99  IMO document MSC 93/22, p. 45, para. 10.34. 100  IMO document MSC 93/WP.7/Add.1, p. 5, para. 20. 101  IMO document MSC 93/22, p. 47, para. 10.49.2. 102  IMO document NCSR 1/28, July 16, 2014, pp. 49–50, paras. 23.10–23.21. The revised chapter 9 on safety of navigation and chapter 10 on communications appear in NCSR 1/28, Annex 18. Annexes 19–20 contain additional revisions to the provisions on certification and guidance. 103  IMO document MSC 94/22, p. 14 para. 3.41.1.

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Having reviewed the difficult issue of “tying” the goal-based regulations of the Polar Code to the prescriptive measures in SOLAS and MARPOL, we now turn to the treaty law issue of how to amend SOLAS and MARPOL to make the Polar Code mandatory, the effect of those amendments on earlier national regulations, and Canadian and Russian attempts to avoid any adverse effects to their unilaterally imposed regulations. We consider first the proposed amendments to SOLAS and MARPOL annexes. 6.5 Making the Polar Code Mandatory104 As structured, the Polar Code is divided into two separate parts, Part I relating to safety, and Part II relating to environmental protection. The idea is to make Part I mandatory through incorporation by reference into the SOLAS Regulations as a new chapter and make Part II mandatory through incorporation by reference into the four relevant MARPOL Annexes (I, II, IV and V), through the tacit acceptance procedure. There developed general agreement to follow earlier examples of making IMO Codes mandatory through amendments to the appropriate annex. However, the devil is in the details. We turn first to an explanation of the tacit acceptance procedure, then to the proposals to add a new chapter to the SOLAS regulations and new chapters to the four MARPOL Annexes. 6.6 Tacit Acceptance Procedure Articles of SOLAS and its Chapter I cannot be amended by the tacit acceptance procedure, only through the explicit acceptance process.105 Only the annexes in SOLAS Chapters II et seq. can be amended by the tacit acceptance procedure, including the addition of additional chapters.106 Part II of the draft Polar Code, Pollution Prevention Measures, is structured into four chapters, corresponding to Annexes I, II, IV and V of MARPOL. Like SOLAS, amendments to Articles of the 1973/1978 MARPOL Convention, and the addition of new Annexes (e.g. Annex VI on air pollution from ships) can be done only through the explicit acceptance process,107 while amendments to the Annexes may be amended by the tacit acceptance procedure.108

104  Initial discussions at the IMO on how to make the Polar Code mandatory are recounted in Roach, “A Note on Making the Polar Code Mandatory,” supra n. 85, at 125–140. 105  SOLAS Article VIII, para. (b)(vi)(1); MARPOL 73/78, Article 16(2)(f)(i). 106  Id., para. (b)(vi)(2). 107  MARPOL 1973, Articles 16(2)(f)(i) and 16(5). 108  Id., Article 16(2)(f)(ii).

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The following table illustrates the tacit acceptance procedure for making the Polar Code mandatory: TABLE 12.2 Tacit Acceptance Procedure Committee Meeting

SOLAS Article VIII Amendments to Regulations except Chapter I MSC 93 Approved for circulation new Chapter XIV May 2014

MARPOL Article 16 Amendments to Annexes I, II, IV, V MEPC 67 Approved for circulation October 2014

Interval

Committee Meeting

Interval

Entry into force

Date set at MSC 94

Minimum 6 months

MSC 94 Adopted Nov. 2014

Minimum one year

Deemed accepted 1 July 2016 Entry into force 1 January 2017 Date to be set at MEPC 68

Minimum 6 months

MEPC 68 Adoption May 2015

Minimum 10 months

Deemed accepted 6 months later EIF 1 January 2017 (T)

6.7 Amendments to SOLAS Regulations It will be recalled that articles of SOLAS and its Chapter I cannot be amended by the tacit acceptance procedure, only through the explicit acceptance process.109 Only the annexes in Chapters II et seq. can be amended by the 109  SOLAS Article VIII, para. (b)(vi)(1).

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tacit acceptance procedure, including the addition of additional chapters.110 In the last 18 years six new chapters have been added to SOLAS by the tacit acceptance procedure: chapters IX (Management for the safe operation of ships—ISM Code), X (1994 High Speed Craft Code), XI-1 (Casualty Investigation Code), XI-2 (ISPS Code), XII (Bulk carrier safety), XIII (Verification of compliance). Following these examples, the Maritime Safety Committee considered a new Chapter XIV, Safety Measures for Ships Operating in Polar Waters. The draft text of this amendment to SOLAS for consideration by MSC 93 in May 2014 reads as follows: CHAPTER [XIV] SAFETY MEASURES FOR SHIPS OPERATING IN POLAR WATERS For the purpose of this chapter: 1 Polar Code means the International Code for Ships Operating in Polar Waters, consisting of an introduction, part I-A [(the provisions of which shall be treated as mandatory)] and part II-A [(the provisions of which should be treated as mandatory under the relevant annexes of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973)] and parts I-B and II-B [(the provisions of which should be treated as recommendatory)], as adopted by resolutions [MSC. . . . (. . .) and MEPC. . . . (. . .)], as may be amended by the Organization, provided that: .1 amendments to [the safety-related provisions of ] the introduction and part I-A of the Polar Code are adopted, brought into force and take effect in accordance with the provisions of article VIII of the present Convention concerning the amendment procedures applicable to the annex other than chapter I; and .2 amendments to part I-B of the Polar Code are adopted by the Maritime Safety Committee in accordance with its Rules of Procedure. 2 Polar waters means both Arctic waters and the Antarctic area, as defined in the Polar Code. [3 For the purpose of this chapter, all ships means: [.1 any ship to which chapter I, regulation 3, applies; and] [.2 ships constructed before, on or after [date of entry in force].] 110  Id., para. (b)(vi)(2).

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[4 Ship constructed means a ship the keel of which is laid or which is at a similar stage of construction.] [5 At a similar stage of construction means the stage at which: .1 construction identifiable with a specific ship begins; and .2 assembly of that ship has commenced comprising at least 50 tonnes or 1% of the estimated mass of all structural material, whichever is less.] Regulation 2—Application 1 Unless expressly provided otherwise in the Polar Code, this chapter applies to all ships [engaged on international voyages,] operating in polar waters, in addition to any other applicable requirements of the present regulations. 2 For ships constructed before [date of entry into force] part I-A of the Polar Code applies no later than [date to be determined]. 3 In applying part I-A of the Polar Code, consideration should be given to the additional guidance in part I-B of the Polar Code. [4 Operational limitations may form the basis for deviations from any or all prescriptive safety measures with the exception of the operational requirements in chapters 2, 12, 13 and 14 of the Polar Code. When utilizing operational limitations as means for compliance with a prescriptive safety measure, the evaluation and approval of the design and arrangements shall be carried out in accordance with regulation 4 (Alternative design and arrangement).] [5 Nothing in this chapter shall prejudice the rights or obligations of States under international law, as reflected in the 1982 United Nations Convention on the Law of the Sea.]111 Regulation 3—Requirements for ships operating in polar waters 1 A ship operating in polar waters shall comply with the requirements of the safety-related provision of the introduction, part I-A of the Polar Code and shall, in addition to the requirements of regulation I/7, I/8, I/9, and I/10, as applicable, be [surveyed and] certified, as provided for in that Code. 111  This provision is discussed separately infra at text accompanying notes 159–171.

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2 A ship operating in polar waters holding a certificate issued pursuant to the provisions of paragraph 1 shall be subject to the control established in regulations I/19 [and XI-1/4]. For this purpose, such certificates shall be treated as a certificate issued under regulation I/12 or I/13. Regulation 4—Alternative design and arrangement 1 The goal of this regulation is to provide a methodology for alternative design and arrangements for structure, machinery, and electrical installations, fire safety and life-saving appliances and arrangements. 2 Structural arrangements, machinery and electrical installation, fire safety design and arrangement measures and as well as life-saving appliances and arrangements may deviate from the prescriptive requirements set out in chapters 3, 6, 8 and 9 of the Polar Code, provided that the alternative design and arrangements meet the intent of the goal and functional requirements concerned and provide an equivalent level of safety to those chapters. 3 When alternative design or arrangements deviate from the prescriptive requirements of chapters 3, 6, 8 and 9 of the Polar Code, an engineering analysis, evaluation and approval of the design and arrangements shall be carried out based on the Guidelines approved by the Organization2. 4 Any alternative design or arrangement deviating from the prescriptive requirements shall be recorded in the Polar Ship Certificate and the ship’s Polar Water Operational Manual, as required by the Polar Code, also defining the technical and operational measures and conditions for the allowed deviation.112 -----------------------2 Refer to the Guidelines for the approval of alternatives and equivalents as provided for in various IMO instruments (MSC.1/Circ.1455), the Guidelines on alternative design for SOLAS chapters II-1 and III (MSC.1/Circ.1212) and the Guidelines on alternative design and arrangements for fire safety (MSC/ Circ.1002), as applicable.

112  IMO document SDC 1/26, Annex 2, supra note 57.

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At MSC 93 the Working Group prepared a clean text of Chapter XIV,113 which the Committee approved for circulation in accordance with SOLAS Article VIII with a view to subsequent adoption at MSC 94.114 At MSC 94 several editorial changes were made to this text.115 The text of SOLAS Chapter XIV as approved by MSC 94 is set out in Appendix 1. The IMO Secretariat proposed that Chapter XIV enter into force on 1 July 2016.116 However MSC 94 decided that it would enter into force 1 January 2017.117 6.8 Amendments to MARPOL Annexes Part II of the draft Polar Code, Pollution Prevention Measures, is structured into four chapters, corresponding to Annexes I, II, IV and V of MARPOL. Like SOLAS, amendments to Articles of the 1973/1978 MARPOL Convention can be done only through the explicit acceptance process,118 while amendments to the annexes may be amended by the tacit acceptance procedure.119 The idea is to make these four chapters of the Polar Code mandatory through additions to these four MARPOL annexes (I, II, IV and V). However, at MEPC 66 it became clear that the texts of the proposed amendments before the Committee from SDC 1 lacked legal clarity and certainty. The Committee had before it proposals from four Members, Netherlands and Panama (MEPC 66/11/5), Germany (MEPC 66/11/9) and the United States (MEPC 66/11/14, /15, /16, /17 and /18), on how best to make the amendments to the Annexes mandatory with legal clarity and certainty. No approach received consensus; rather the Committee instructed the correspondence group to prepare draft amendments to the four annexes taking into account portions of each submission.120 The correspondence group prepared draft amendments that included sets of two options for the major amendments to MARPOL Annexes I, II, IV and V to make the Polar Code mandatory.121 To finalize these amendments, an intersessional meeting of the Polar Code Working Group met for three days in the 113  IMO document MSC 93/WP.7, para. 10. 114  IMO document MSC 93/22, p. 46, para. 10.44. The amendment was circulated by IMO Circular Letter No. 3451, 20 May 2014, as Annex 2. 115  See IMO document MSC 94/WP.7 page 3. 116  IMO document MSC 94/3/1 Annex 2, 30 July 2014. 117  IMO document MSC 94/21, para. 3.24. 118  MARPOL 1973, Article 16(2)(f)(i). 119  Id., Article 16(2)(f)(ii). New annexes are adopted by IMO diplomatic conferences not MEPC. 120  IMO document MEPC 66/21, p. 54, para. 11.46. 121  IMO document MEPC 67/9 Annex 2, 10 July 2014 (UK).

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week before MEPC 67.122 The Intersessional Working Group agreed on the text of the amendments to the MARPOL Annexes.123 The Polar Code Working Group at MEPC 67 revised those amendments.124 MEPC 67 approved these revised draft amendments and requested the Secretary-General to circulate them in accordance with MARPOL Article 16 with a view to their adoption at MEPC 68 (May 11–15, 2015).125 The amendments are annexed to this paper in Appendix 2 (Appendices omitted). Their structure can be summarized in the following table: TABLE 12.3 Amendments to MARPOL Annexes I, II, IV and V MARPOL ANNEX

New Chapter

Amended Regulations

I II IV V

11, Regulations 46–47 10, Regulations 21–22 7, Regulations 17–18 3, Regulations 13–14

3, 4, 14, 15, 34, 38 3, 16 3 3, 7, 10

7

Unilateral National Regulation of Shipping in the Arctic

Having reviewed the treaty law issues in amending the SOLAS chapters and MARPOL Annexes, we next turn to the relationship of existing Canadian and Russian laws to the LOS Convention, SOLAS and MARPOL. We first set out the Canadian and Russian regulations. Thereafter they are analyzed for consistency with international law. 7.1 Canada On August 27, 2008, Canadian Prime Minister Harper announced plans to make the regulations purporting to govern vessels transiting the NWP and NSR respectively to the existing voluntary Arctic Ship Reporting System

122  IMO circular letter No. 3465, 23 June 2014; IMO document MEPC 67/WP.8, 9 Oct. 2014, Report of the Intersessional Polar Code Working Group. 123  MEPC 67/WP.8, paras 42–48 and Annex 2. 124  MEPC 67/WP.14, 15 Oct. 2014, paras. 24–29 and Annex 2. 125  MEPC 67/20, Oct. 31, 2014, para. 9.45.

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(NORDREG)126 mandatory, and to extend the geographic scope of its application to Canada’s full Arctic 200 mile EEZ.127 The amendments contained in Bill C-3 received royal assent on June 11, 2009, and came into force on August 1, 2009.128 The implementing regulations, and thus the mandatory requirements, came into force July 1, 2010.129 The geographic area of the NORDREG Zone, in which mandatory ship reporting is now required, includes not only the Canadian EEZ in the Arctic, but also the waters of Canada’s Arctic archipelago, including the seven routes of the Northwest Passage.130 See the illustration below. The Canadian Coast Guard has described the objectives of NORDREG as follows: The Northern Canada Vessel Traffic Services Zone Regulations formally establish the Northern Canada Vessel Traffic Services (NORDREG) Zone and, consistent with international law regarding ice-covered areas, implement the requirements for vessels to report information prior to entering, while operating within and upon exiting Canada’s northern waters. The Regulations replace the informal NORDREG Zone (i.e. Arctic Canada VTS zone) and the voluntary reporting system that has existed in Canada’s 126  Canada Annual Notice to Mariners 2008, section 6.1, available at http://www.notmar.gc.ca/ eng/services/2008-annual/section-a/notice-6.pdf; Canadian Coast Guard, Radio Aids to Marine Navigation (Atlantic, St. Lawrence, Great Lakes, Lake Winnipeg and Eastern Arctic), ‘Annual Edition 2006,’ Part 3, available at http://dsp-psd.pwgsc.gc.ca/Collection/ T51–4-2006E-3.pdf; Arctic Ice Regime Shipping System Standards, Transport Canada publication TP 12259E (1988), available at http://www.tc.gc.ca/MarineSafety/TP/tp12259 .htm. The 2010 version, Arctic Ice Regime Shipping System (AIRSS) Standards—TP 12259, is available at http://www.tc.gc.ca/eng/marinesafety/tp-tp12259-menu-605.htm. 127  Prime Minister of Canada, PM Announces Government of Canada Will Extend Jurisdiction over Arctic Waters, Press Release, Aug. 27, 2008, available at http://www.conservative.ca/ EN/1091/101728 and http://www.pm.gc.ca. 128  Transport Canada, The Government of Canada takes action to protect Canada’s Arctic waters and enhance northern sovereignty, News Release No. H 088/09, June 17, 2009, available at http://www.tc.gc.ca/mediaroom/releases/nat/2009/09-h088e.htm, and Legislation to protect Canada’s Arctic waters comes into force, News Release No. H 110/09, Aug. 6, 2009, available at http://www.tc.gc.ca/mediaroom/releases/nat/2009/09-h110e.htm. 129  Northern Canada Vessel Traffic Services Zone Regulations, SOR/2010–127, available at http://laws-lois.justice.gc.ca/PDF/SOR-2010-127.pdf. These revised regulations came into force July 1, 2010. 130  Transport Canada, Government of Canada Takes Action to Protect Canadian Arctic Waters, Press Release No. H 078/10, June 22, 2010, available at http://news.gc.ca/web/article-en .do?nid=548709.

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FIGURE 12.5

Geographic area of the NORDREG zone. Transport Canada graphic reformatted (c) James Kraska, reprinted with permission.

northern waters, enhancing the effectiveness of the official NORDREG Zone and Canada’s ability to facilitate the safe and efficient movement of marine traffic. The Regulations will enhance the safety of vessels, crew and passengers, and will safeguard the unique and fragile Arctic marine environment. The Regulations are designed to ensure that the most effective services are available to accommodate current and future levels of marine traffic.131 The regulations require the filing of a sailing plan when a vessel is about to enter the NORDREG Zone; more than one hour but not more than two hours before a vessel departs from a berth within the NORDREG Zone, unless the vessel is moving to another berth in the same port; and immediately before a vessel gets underway within the NORDREG Zone, if the vessel has been stranded, has stopped as a result of a breakdown in the main propulsion or steering system, or has been involved in a collision. The regulations further require filing a position report immediately after a vessel enters the NORDREG 131  http://www.ccg-gcc.gc.ca/eng/MCTS/Vtr_Arctic_Canada.

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Zone; and daily at 1600 Coordinated Universal Time (UTC), if a vessel is underway within the NORDREG Zone, unless the information required by regulation 19–1, Long-range identification and tracking of ships, of Chapter V of SOLAS, is being transmitted in accordance with that regulation. The regulations require further filing of a report on departure from the zone and a deviation report.132 7.2 Russia In 2008 then-President Medvedev adopted the “Basics of the State Policy of the Russian Federation in the Arctic for the period till 2020 and for a further perspective.”133 Of greatest relevance to this paper is the following provision: Strategic priorities of the state policy of the Russian Federation in the Arctic are . . . in the use of the Northern Sea Route for international navigation under the jurisdiction of the Russian Federation and according to international treaties of the Russian Federation.134 In 2012 the Russian Duma enacted, and the Council of the Federation approved, the “Federal Law on Amendments to Specific Legislative Acts of the Russian Federation related to Governmental Regulation of Merchant Shipping in the water area of the Northern Sea Route”.135 In pertinent part, the legislation provided that: Navigation in the water area of the Northern Sea Route, the historically emerged national transportation route of the Russian Federation, shall be performed according to the commonly accepted principles and norms of the international law, international agreements of the Russian Federation,

132  Ibid. For the text of SOLAS regulation V/19–1 see http://www.bsh.de/en/Maritime_shipping/Commercial_shipping/LRIT/Anlage_3.pdf (text of MSC resolution MSC.202(81), May 19, 2006). For additional information on Long-range information and racking (LRIT) of ships, see www.imo.org/OurWork/Safety/Navigation/Pages/LRIT.aspx and www.imo .org/blast/mainframe.asp?topic_id=905. 133  The policy was adopted on September 18, 2008 and promulgated March 30, 2009. The text is available at http://www.arctic-lio.com/docs/nsr/legislation/Policy_of_the_RF_in_ the_Arctic.pdf. 134  Id., para. 7(d) (emphasis added). 135  Federal Law No. 132–03, July 28, 2012, available at http://www.arctic-lio.com/docs/nsr/ legislation/federal_law_nsr.pdf.

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this Federal Law, other Federal Laws and other regulatory legal documents issued in relation with the above.136 The relevant international agreements to which Russia is a party are, of course, the LOS Convention, and the various IMO Conventions and Codes,137 and when SOLAS Chapter XIV enters into force, the mandatory Polar Code. The legislation also mandated what the rules on safe navigation of the NSR should contain. It also required that ships desiring to navigate the NSR must receive permits to do so, which are to be issued if the vessel complies with the rules, has adequate insurance and pays for icebreaker support “based on the amount of services actually delivered.”138 In 2013 the Ministry of Transport of Russia approved the “Rules of navigation in the water area of the Northern Sea Route.”139 For the purposes of this paper the most notable provisions are the requirements for:

•

prior permission to navigate the NSR applied for between 15 working days and 120 calendar days, which if granted is valid for no more than 365 calendar days; civil liability insurance for pollution or other damage pursuant to international treaties of the Russian Federation; need for icebreaker assistance and pilot ice assistance; 72 hours and 24 hours prior notices of planned time of arrival at the boundary of the NSR and at actual time of entrance at and departure from the boundary; and daily position reporting.

• • • •

The basic question thus raised is to what extent are these regulations consistent with the applicable international law?

136  Clause 2 of Act No. 132–03, supra note 134, amending clause 14 of Federal Law No. 155–03, July 31, 1998, On Internal Waters, Territorial Sea and Adjacent Zone of the Russian Federation (emphasis added). 137  See IMO, Status of Conventions, available at http://www.imo.org/About/Conventions/ StatusOfConventions/Documents/status-x.xls. 138  Act No. 132–03, supra note 134, Clause 3 (emphasis added). Note that this last provision in quotes, which seems consistent with Article 26 of the LOS Convention, differs from earlier legislation criticized by Kraska, infra note 152. 139  Ministry of Transport of Russia Order No. 7, Jan. 17, 2013, unofficial translation available at http://www.arctic-lio.com/docs/nsr/legislation/20130425185806en-Rules_unof.pdf.

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7.3 Compatibility with International Law140 As an initial matter, it is clear that domestic legislation which contravenes international law does not justify the deviation.141 7.4 NORDREG The action by the Government of Canada to impose unilaterally mandatory NORDREG ship reporting has been criticized by the United States, other Member States and industry, and was the subject of discussion at the 2010 meetings of the IMO Subcommittee on the Safety of Navigation142 and the Maritime Safety Committee.143 The criticism is grounded in Canada’s failure to follow the requirements of SOLAS, particularly regulation V/11, Ship-reporting systems, and regulation V/12, Vessel traffic services, as well as the IMO and IALA implementing guidance.144 Canada has justified its unilateral action on the basis of Article 234, Icecovered areas, of the LOS Convention, which provides:145 140  The treaty law analysis immediately below is taken from Roach and Smith, Excessive Maritime Claims, supra note 1, pp. 493–496. 141  Vienna Convention on the Law of Treaties, Vienna May 23, 1969, entered into force Jan. 27, 1980, 1155 UNTS 331, article 27, available at http://treaties.un.org/doc/Publication/ UNTS/Volume%201155/v1155.pdf (“[a] party may not invoke the provisions of its internal law as a justification for its failure to perform a treaty”). 142  IMO document NAV 56/20, Report of the 56th Meeting, Aug. 31, 2010, paras. 19.21–19.24. 143  IMO documents MSC 88/11/2, Sep. 22, 2010 (INTERTANKO and U.S.), and MSC 88/26, Report of the 88th session, Dec. 15, 2010, paras. 11.28–11.39 and Annexes 27 (statement of Canada) and 29 (statement of Singapore). At MSC 88 Canada sought but did not receive the Committee’s recognition of the mandatory system. MSC 88/26, para. 11.39. See Digest of U.S. Practice in International Law 2010, pp. 514–520 and http://www.state.gov/s/l/2010/ ch12/index.htm, documents 54a-d for details. 144  IMO resolution A.851(20), Nov. 27, 1997, General Principles for Ship Reporting Systems and Ship Reporting Requirements, including Guidelines for Reporting Incidents involving Dangerous Goods, Harmful Substances and/or Marine Pollutants; MSC/Circ.1060, Jan. 6, 2003, Guidance Note on the Preparation of Proposals on Ships’ Routeing Systems and Ship Reporting Systems for Submission to the Sub-Committee on Safety of Navigation; MSC.1/Circ.1060/Add.1, May 26, 2006, Amendment to the Guidance Note on the Preparation of Proposals on Ships’ Routeing Systems and Ship Reporting Systems for Submission to the Sub-Committee on Safety of Navigation; IALA Guideline No. 1071, Dec. 9, 2009, Establishment of a Vessel Traffic Service beyond territorial seas; and IALA, Vessel Traffic Services Manual (5th ed., 2012), available at http://www.pmo.ir/pso_ content/media/files/2013/1/22176.pdf. 145  IMO documents NAV 56/20, supra note 136, para. 19.22; MSC 88/11/3, Oct. 5, 2010 (Canada); SN.1/Circ.291, Oct. 5, 2010, Information on the Mandatory Canadian Ship Reporting System in Canada’s Northern Waters (NORDREG).

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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. Whether Article 234 provides sufficient justification is the subject of scholarly analysis.146 As a textual matter, Article 234 applies only in the EEZ because Article 55 defines the geographic scope of the EEZ as “an area beyond and adjacent to the territorial sea”.147 Canada claims the area of application of Article 146  See, e.g., Bartenstein, “The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?,” 42 ODIL, 2011, 22 and Brubaker, The Russian Arctic Straits 43–109 & 133–139 (Leiden: Martinus Nijhoff, 2005). See also the 2011 summary of the various positions by Andreas Raspotnik, available at http://www.thearcticinstitute.org/2011/12/92743-positive-unilateralism-effective.html. The negotiation process, from the U.S. perspective, of Article 234 is recounted, based on declassified U.S. diplomatic correspondence, in Kraska, “Governance of Ice-Covered Areas: Rule Construction in the Arctic Ocean,” 45 ODIL 260–271 (2014). Unfortunately, the article does not parse the phrases in Article 234. 147  Contra, IV Center for Oceans Law and Policy, United Nations Convention on the Law of the Sea 1982: A Commentary, (Rosenne and Yankov, eds., 1991), p. 397 para. 234.5(d); International Law Association, Final Report of the Committee on Coastal State Jurisdiction relating to Marine Pollution 1, 27 and nn. 117–121 (London 2000), available at http://www .ila-hq.org/download.cfm/docid/C52ADCAF-E925-4BD4-8159B588EFD02597. The rationales for the views that Article 234 applies from the baseline from which the territorial sea is drawn are not convincing. The Virginia Commentary relies on the wording of Articles 219(6), 64, 66 and 67. Article 219(6) does not exist. On the assumption that the reference is to Article 211(6), subparagraph 6(a) refers to “clearly defined areas of their exclusive economic zone”. Article 64(1) mentions “both within and beyond the exclusive economic zone”. Article 66 refers three times and Article 67(2) once to “waters landward of the outer limits of the exclusive economic zone”. Article 234 refers to “areas within the limits of the exclusive economic zone”. These usages demonstrate that the drafters of the Convention knew precisely how to describe these waters. Nothing in the wording of Article 234 suggests that the territorial sea was included in the scope of Article 234. The ILA explanation is that a reading of Article 234 to exclude the territorial sea “would seem quite illogical” to have “attributed broader powers to the coastal state in its EEZ than in its

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234 is seaward of its straight baselines enclosing its arctic archipelago, and only 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 . . .”. One unanswered question is whether, given the retreat of the polar ice cap, those climatic requirements for ice-covered areas are now met in the NORDREG Zone. Regardless of the geographic and climatic scope of application of Article 234 of the LOS Convention, the relationship between that article and SOLAS regulations V/8–1 (now V/11) and V/12 needs to be examined under the law of treaties, reflected in the 1969 Vienna Convention on the Law of Treaties. Canada is a party to both the LOS Convention and SOLAS. Under Article 30(3) of the Vienna Convention, “the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.” What constitutes “incompatibility” is not clear. A former deputy legal adviser of the UK Foreign and Commonwealth Office, and author of a book on modern treaty law and practice, has written: “in determining which treaty is the earlier and which is the later, the relevant date is the date of adoption, not entry into force. . . . The obligations under Article 30 apply to a state only as from the date it becomes a party to the treaty.”148 In this context, the LOS Convention is the earlier treaty, as it was adopted on December 10, 1982, while SOLAS regulation V/8–1 was adopted on May 23, 1994149 and regulations V/11 and V/12 were adopted on December 5, 2000.150 Canada became a party to the LOS Convention on November 17, 2003.151 When the Polar Code is adopted in a mandatory form, it too will be the later treaty. Since SOLAS regulations V/8–1, V/11 and V/12, and the Polar Code are setting international rules and standards, and as they are lex specialis, “a special rule

territorial sea,” an assertion that itself is quite illogical given the coastal state’s sovereignty in its territorial sea and lesser authority in its EEZ. The ILA report makes no reference to the Virginia Commentary discussion on Article 234. 148  Aust, Modern Treaty Law and Practice 229 (Cambridge University Press, 2nd ed., 2007). Accord, Sinclair, The Vienna Convention on the Law of Treaties 98 (2nd ed., 1984). 149  IMO documents Resolution MSC.31(63), MSC 63/23/Add.1 Annex 2, at 2–3, available at http://www5.imo.org/SharePoint/blastDataHelper.asp/data_id%3D15391/31%2863%29 .pdf. 150  IMO documents Resolution MSC.99(73), MSC 73/21/Add.2 Annex 7, at 128–130, available at http://www.navcen.uscg.gov/pdf/marcomms/imo/msc_resolutions/MSC73-21a2-7.pdf. 151  http://www.un.org/Depts/los/reference_files/status2010.pdf.

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prevails over a general rule;”152 thus Article 234 would not permit Canada to enact exceptions to them. However, SOLAS regulations V/8-1(j) (now V/11(9)) and V/12(5) also provide that “[n]othing in this regulation . . . shall prejudice the rights and duties of Governments under international law”. Aust states that this provision means that “[t]he treaty is subordinate to an earlier one”.153 If his analysis is correct, then Article 234 still lives! But then, the geographic and climatic scope of the application of Article 234 becomes important to resolve. 7.5 Northern Sea Route Regulations The compatibility of the earlier Russian unilateral actions with international law has similarly been the subject of international attention154 and need not be repeated here. However, the new regulations have not received much attention. In that regard, it may be noted that while payment for icebreaker services is now contingent on the amount of services provided, the requirement to obtain prior permission to transit the NSR is not compatible with the legal regime of straits used for international navigation where the regime of transit passage applies and a notice or permissive requirement is not permitted. In addition, Russia has not obtained IMO approval for its mandatory reporting scheme, as other States have done.155 152  Aust, supra note 147, at p. 249. 153  Id. at 220, quoting article 4 of the 1995 Fish Stocks Agreement. 154  See Roach and Smith, Excessive Maritime Claims, supra note 1, pp. 312–318; J. Kraska, “The New Arctic Geography and U.S. Strategy,” in Kraska (ed.), Arctic Security in an Age of Climate Change (Cambridge, 2011), p. 250 (pilotage fees not related to services rendered); and passim Brubaker, The Russian Arctic Straits (The Hague: Nijhoff, 2005); and E. Franckx, “The Legal Regime of Navigation in the Russian Arctic,” 18 J. Transnat’l L. & Pol’y, 2009, 327, available at http://www.law.fsu.edu/journals/transnational/vol 18_2/ franckx.pdf; and summarized in Ship and Ocean Foundation, The Northern Sea Route: The Shortest sea route linking East Asia and Europe, (Tokyo 2001), at 85–86, available at http:// www.sof.or.jp/en/report/pdf/200103_rp_ar0103e.pdf. 155  Mandatory ship reporting schemes for international straits have been approved by the IMO for the Torres Strait (resolution MSC.161(78)), Great Belt (resolution MSC.230(82)), Strait of Gibraltar (resolution MSC.300(87)), and The Sound (resolution MSC.314(88)), available at http://www.navcen.uscg.gov/?pageName=mscResolutions. In addition, pursuant to a Russian and Norwegian proposal, in 2012 the IMO Maritime Safety Committee adopted a new mandatory ship reporting system “In the Barents Area (BARENTS SRS)” by Resolution MSC.348(91), Nov. 28, 2012, effective June 1, 2013, IMO document MSC 91/22/ Add.1 Annex 27. Reports are to be made to either Vardø VTS center or Murmansk VTS center. The reporting area is between 66°N and 72°N along the northern coast of Norway.

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The actions of Canada and Russia next described suggest they are concerned that the regulations may not be consistent with international law.156 8

Legal Effect of Polar Code on National Regulations

In the context of the development of a mandatory Polar Code, Canada and the Russian Federation sought to protect their national regulations regarding foreign shipping in their national Arctic waters from the effects of the Polar Code. In 2009 Canada made a written submission to the 53rd session of the IMO Sub-Committee on Ship Design and Equipment (DE 53) that had been tasked with the lead in developing the Polar Code. The Canadian submission read: 5 There is a variety of operational control systems in polar waters, namely in Canada, the Russian Federation and the Antarctic Treaty. . . . 2.11 The Code is not intended to infringe on national systems of shipping control until a harmonized system is in place; in addition to applicable sections of the Code, port, Treaty and coastal States may retain local navigation rules and regulations for certain routes and waterways under their jurisdiction taking account local conditions, infrastructure and procedures.157 In 2011 Canada made another written submission to the 55th session of the IMO Sub-Committee on Ship Design and Equipment (DE 55). This Canadian submission read: 156  Michael Byers has reported that on February 20, 2009 the Russian and Canadian Legal Advisers consulted in Moscow on common Arctic concerns:  “Both sides stated a high degree of similarity in their position on the issue of international shipping in the Northwest Passage (Canada) and the Northern Sea Route (Russia)— the existing limitations that are being applied to those areas are necessary to preserve the fragile maritime environment and are in sync with the rights that UNCLOS concedes to coastal states in ice-covered areas. Both sides agreed to have more detailed consultations on this topic, including the issue of rights to historical waters in the context of the existing disputes over their status with the US.” M. Byers, “Who Owns the Arctic? Arctic Sovereignty and International Relations,” http:// byers.typepad.com/arctic/russiacanada-consultations-on-the-legal-status-of-the-arctic .html (emphasis in the original). 157  IMO document DE 53/18/2, Nov. 20, 2009, proposed framework for the Code for ships operating in polar waters (Canada), para. 5 & Annex para. 2.11 (emphasis added).

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7 It is proposed that all ships operating in polar waters are required to carry a Polar Ship Permit to Operate issued by or on behalf of the flag State. This permit would establish the areas of international waters and the environmental conditions in which the ship is authorized to operate, based on the level to which the ship incorporates the requirements of the Polar Code. The permit would also assist coastal States in regulating operations in accordance with their own systems of navigational control. . . . 15 All ships should be required to make regular reports to the flag State and, where applicable, to coastal States regarding their operations and the prevailing conditions.158 The Russian Federation also made a submission to DE 55 which read in part: 4 In accordance with Article 234 of the 1982 UN Convention on the Law of the Sea, “. . . Coastal States have the right to adopt and enforce nondiscriminatory 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.” In accordance with that article, Russia adopted its national “Regulations for navigation along the Northern Sea Route (NSR)” and “Requirements for ships navigating along the NSR” which apply to all ships navigating along the NSR within the limits of the exclusive economic zone of the Russian Federation. . . . 5 Russia believes that the Code currently under development should clearly define principles of applying the requirements within the EEZs of polar States. Paragraph 2.11 of the draft Code proposed by Canada in their document DE 53/18/2 formulates the principle of priority of national regulations over the Code’s requirements, which was later omitted in further documents submitted (DE 55/INF.4, DE 55/12/6 and DE 55/12/4). The Russian Federation supports the initial wording proposed by Canada and suggests to keep it in the Preamble of the Code under development by supplementing the Preamble with the following: 158  IMO document DE 55/12/7, Jan. 14, 2011, Application of requirements in the mandatory Polar Code (Canada), paras. 7 & 15 (emphasis added).

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The Code is not intended to infringe on national systems of shipping control until a harmonized system is in place; in addition to applicable sections of the Code, port, Treaty and coastal States may retain local navigation rules and regulations for certain routes and waterways under their jurisdiction taking account local conditions, infrastructure and procedures.159 DE’s Report to the Maritime Safety Committee states that during consideration of these documents at DE 55, [w]ith regard to documents DE 55/12/7 (paragraphs 7 and 15) and DE 55/12/23 (paragraphs 4 and 5), the delegation of the United States expressed concern regarding the scope and meaning of the provisions included in these documents, reminding the Sub-Committee of ongoing concerns over the legal basis and practical safety aspects of Canada’s mandatory ship reporting and vessel traffic service system and the Russian Federation’s regulations and requirements for ships navigating along the Northern Sea Route in their claimed Arctic waters, and urged submission of such national regulatory systems for adoption in order to address those defects. The United States, supported by several delegations, also expressed doubts regarding the application of UNCLOS article 234 by Canada and the Russian Federation, or that the Polar Code in itself would provide the international legal basis for these systems.160 In 2014 Canada tried a different approach. 8.1 Relationship of Polar Code to LOS Convention Since it was intended that the Polar Code will be made mandatory through amendments to SOLAS and MARPOL annexes, it is important to recall what SOLAS and MARPOL already provide in savings clauses before considering the proposed amendments to SOLAS and MARPOL in the context of making the Polar Code mandatory. 8.2 Savings Clauses in SOLAS Regulation V/10.10, Ships Routeing, provides “Nothing in this regulation or its associated guidelines and criteria shall prejudice the rights and duties of 159  IMO document DE 55/23, Feb. 1, 2011, Procedure of accounting for national regulations (Russian Federation), paras. 4 & 5 (emphasis added). 160  IMO document DE 55/22, April 15, 2011, p. 24, para. 12.7 (2nd para.) (emphasis added).

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Governments under international law or the legal regimes of straits used for international navigation or archipelagic sea lanes.” Regulation V/11.9, Ship reporting systems, provides “Nothing in this regulation or its associated guidelines and criteria shall prejudice the rights and duties of Governments under international law, including the relevant provisions of the United Nations Convention on the Law of the Sea.” SOLAS Regulation XI-2/3.6 states that “Nothing in this [ISPS] Code shall prejudice the rights or obligations of States under international law.” As noted above, the 2014 working draft of the amendments to SOLAS to make the Polar Code mandatory included in brackets the following text in Regulation 2, Application, of the draft chapter XIV, Safety measures for ships operating in Polar Waters: 5 Nothing in this chapter shall prejudice the rights or obligations of States under international law, as reflected in the 1982 United Nations Convention on the Law of the Sea.161 Canada tried at MSC 93 to protect is national regulations (NORDREG). In its submission to MSC, Canada argued: Placement of a savings clause in the draft new chapter XIV of the SOLAS Convention 4 The inclusion of a savings clause in the SOLAS amendments would help to guide Administrations on how the mandatory safety aspects of the Polar Code interrelate with the rights and obligations of States under other existing international agreements and international law more generally. Such a clause would better inform Administrations on the application of these provisions within the broader international legal framework applicable in polar waters. 5 The proposed savings clause currently bracketed in the draft SOLAS amendments is very similar to language found in other more recent international agreements such as the Hong Kong Convention on Ship Recycling and the 2007 Nairobi Convention on the Removal of Wrecks. Article 15 of the 2009 Hong Kong Convention on Ship Recycling states:

161  IMO document SDC 1/26, supra note 57, Annex 2, p. 2.

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.1 Nothing in this Convention shall prejudice the rights and obligations of any State under the United Nations Convention on the Law of the Sea, 1982, and under the customary international law of the sea. .2 Nothing in this Convention shall prejudice the rights and obligations of Parties under other relevant and applicable international agreements. Similarly, the 2007 Nairobi Convention on the Removal of Wrecks contains a savings clause in article 16, as follows: Nothing in this Convention shall prejudice the rights and obligations of any State under the United Nations Convention on the Law of the Sea, 1982, and under the customary international law of the sea. 6 Unlike these more recent Conventions, SOLAS does not contain an overall savings clause applicable to the entire Convention. However, there is legal precedent for a savings clause to be included in the draft new chapter XIV of SOLAS. SOLAS chapter XI, regulation 2, which incorporates the ISPS Code by reference, contains a savings clause in paragraph 4 which states: Nothing in this chapter shall prejudice the rights or obligations of States under international law. Further, several regulations in SOLAS chapter V contain savings clauses in relation to ships routeing (regulation 10), ship reporting systems (regulation 11), vessel traffic services (regulation 12), and long range identification and tracking of ships (regulation 19). Adding a savings clause to the draft new chapter XIV is therefore not a departure from past IMO practice. 7 The preamble of the Polar Code currently contains the following language in paragraph 8: [Nothing in this Code shall be taken as conflicting with the United Nations Convention on the Law of the Sea, 1982, the Antarctic Treaty System and other international agreements]. A preamble to a treaty or a code is legally important because it provides context and reflects the common understanding of States at the time that a treaty or code is adopted. Such an important interpretive tool is valuable in understanding the binding obligations set out in the operative portions of

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the treaty or code in question. However, Canada is of the view that irrespective of the language currently in the preamble of the Polar Code, a legally binding savings clause in the draft new chapter XIV of SOLAS would further enhance legal clarity and coherence between the relationship between States’ rights and obligations under the Polar Code and international law as applicable in polar waters. Conclusion 8 Canada therefore proposes that: .1 the following editorial change be made to the savings clause to clarify the portions of the Polar Code to which it relates: Nothing in part I-A of the Polar Code shall prejudice the rights or obligations of States under international law, as reflected in the 1982 United Nations Convention on the Law of the Sea; and .2 the text set out in paragraph 8.1 above, subject to any additional editorial modifications by this Committee, be included in the SOLAS amendments adopted by this Committee.162 Germany submitted a paper in which it stated its belief that this provision is unnecessary: 11 Regulation 2, paragraph 5, contains, in square brackets, a provision clause in favour of the 1982 United Nations Convention on the Law of the Sea. It is Germany’s understanding that IMO instruments can develop the maritime law only so far, as rights or obligations of States under the 1982 United Nations Convention on the Law of the Sea are not impaired. For the Polar Code this understanding is confirmed by paragraph 8 of the preamble. A specific paragraph in the application provision, restating this general principle is unnecessary. 12 Germany, therefore, proposes to delete regulation 2, paragraph 5, of the proposed new SOLAS chapter XIV.163

162  IMO document MSC 93/10/12, March 25, 2014, paras. 4–8 (Canada). 163  IMO document MSC 93/10/2, Feb. 21, 2014, paras. 11–12 (Germany).

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MSC 93 instructed the Working Group to “further consider” the Canadian proposal.164 The Group decided “that it was more appropriate to include in the new draft regulation XIV/2.5 the text from SOLAS regulation XI-2/2.4, instead of introducing yet another new text into the Convention.”165 The Committee approved.166 The unchanged text as adopted by MSC 94 is set out in Appendix 1. 8.3 Savings Clauses in MARPOL MARPOL 1973 provides in Article 9(2): Nothing in the present Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea convened pursuant to Resolution 2750C(XXV) of the General Assembly of the United Nations nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction. During the discussion at SDC 1 of the draft amendments to MARPOL Annexes to make the Code mandatory the Sub-Committee reported that the text for a new paragraph 8 of regulation 2 of MARPOL Annex I was proposed, to be repeated in the application sections of Annexes II, IV, and V, in order to clarify the relationship between the Polar Code, other international agreements and international law. In this regard, the delegation of Canada made a statement regarding the rights or obligations of States under international law as reflected in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the full text of which is set out in annex 10.167 The Canadian statement reads as follows: It is Canada’s view that it is important that the relationship between the Polar Code, other international agreements and international law is made clear in the amendments to MARPOL. Canada proposed language be included in the application sections of Annexes I, II, IV and V.

164  IMO document MSC 93/22, p. 41, para. 10.22.3. 165  IMO document MSC 93/WP.7, para. 8. 166  IMO document MSC 93/22, p. 46, para. 10.41. 167  IMO document SDC 1/26, supra note 57, para. 3.19.4.

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Canada is aware of article 9(2) of MARPOL. Nevertheless, Canada proposed this text for purposes of transparency and clarity, in light of the fact that the Polar Code will come into effect through two different Conventions. In light of the discussion in plenary regarding this proposal, Canada is willing to review and revise the language as follows: Nothing in the Polar Code shall prejudice the rights or obligations of states under international law as reflected in the 1982 UN Convention on the Law of the Sea.168 In considering these proposals, the SDC Sub-Committee’s report stated: The Sub-Committee also considered the following two options regarding the rights or obligations of States under international law: .1 nothing in this chapter 1 of the Code shall prejudice the rights or obligations of States under international law, as reflected in the 1982 United Nations Convention on the Law of the Sea; or .2 nothing in this chapter 1 of the Code is intended to imply a change in the rights and obligations under other applicable international agreements or under customary international law as reflected in the 1982 United Nations Convention on the Law of the Sea, and decided to include the text in option one above in square brackets, bearing in mind that the aforementioned text needs further refinement (e.g. replace States with Contracting Governments). Notwithstanding the above decision, the Sub-Committee recognized that a large number of those who spoke on the matter preferred to not include either option since a relevant provision on this subject has already been included in the draft Code.169 Canada tried again at MEPC 66. Canada’s substantive arguments in favor of adding savings clauses to the amendments to MARPOL Annexes I, II, IV and V read as follows:

168  Id., Annex 10, p. 3. The text proposed by Canada is substantively identical to that contained in brackets in draft regulation 2.5 of SOLAS chapter XIV quoted above. 169  Id., para. 3.30.

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Placement of a Savings Clause in the MARPOL Amendments 5 MEPC 63 decided not to make the Polar Code mandatory through the development and adoption of a new convention. A new convention would likely have contained a clause that would have clarified the relationship between the new convention and other international agreements. 6 It is important that the relationship between the Polar Code and international law is made clear in the amendments to the MARPOL Annexes given that the Polar Code will be made mandatory by amending more than one treaty. It would be preferable to have the clarity, transparency and certainty of a savings clause in each of the Annexes of MARPOL being amended as a result of the implementation of the Polar Code. 7 The inclusion of a savings clause in the MARPOL amendments would help to guide Administrations on how the mandatory environmental aspects of the Polar Code interrelate with the rights and obligations of States under other existing international agreements and international law more generally. Such a clause would better inform Administrations on the application and enforcement of these provisions in the context of other existing international obligations. 8 Article 9(2) of MARPOL was drafted before the United Nations Convention on the Law of the Sea entered into force and directs that MARPOL not prejudice the ongoing negotiations nor the future “nature and extent of coastal and flag state jurisdiction”. 9 Notwithstanding the existence of Article 9(2), a clause tailored to bring precision as to the nature of the relationship between the environmental aspects of international law contained in the Polar Code and other relevant international agreements would be of value. 10 The preamble of the Polar Code currently contains the following language in paragraph 8: [Nothing in this Code shall be taken as conflicting with the United Nations Convention on the Law of the Sea, 1982, the Antarctic Treaty System and other international agreements]. 11 While a preamble to a treaty or a Code is legally important because it provides context and a certain understanding of the States at the time that

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a treaty or Code is adopted, an understanding is not the same as a provision that is clearly legally binding. It is for this reason that Canada is of the view that irrespective of the language currently in the preamble of the Polar Code, a savings clause in the MARPOL amendments would further enhance transparency. 12 Canada therefore proposes that that following language be included as a new paragraph in regulation 2 of MARPOL Annexes I, II, IV and V: Nothing in the Polar Code shall prejudice the rights or obligations of States under international law as reflected in the 1982 United Nations Convention on the Law of Sea.170 The report of MEPC 66 indicates why the Committee did not agree with Canada’s proposal: Proposed savings clause 11.47 The Committee, having considered document MEPC 66/11/7 (Canada), which proposed the inclusion of a clause in the draft MARPOL amendments to clarify the relationship between the Polar Code, other international agreements and international law, did not agree to the proposal. The Committee noted that the majority of the delegations that spoke were of the view that article 9(2) of MARPOL already brings sufficient precision as to the nature of the relationship between the provisions contained in the Polar Code and other relevant international law; that the inclusion of a saving clause in part II-A of the Code could cause confusion and potential legal uncertainty; and that the provisions of part II-A of the Code are not expected to conflict with other relevant international law.171 Following the Committee’s decision, Canada made the following statement: Canada has listened carefully to the discussion that took place on document MEPC 66/11/7 and notes the decision of the Committee in this regard. It is our understanding that the decision of this Committee not to include a savings clause in the MARPOL amendments was based both on the presence of 170  IMO document MEPC 66/11/7, Feb. 21, 2014 (Canada), paras. 5–12. 171  IMO document MEPC 66/21, April 25, 2014, p. 54, para. 11.47.

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Article 9(2) of MARPOL, and the view of this Committee that all IMO ­instruments are to be interpreted in a manner that would not prejudice or impair States’ rights and obligations under international law as reflected in UNCLOS. As the purpose of Canada’s proposal was to enhance clarity and transparency in this regard, Canada can go along with the decision of this Committee on this issue. Canada would like the basis upon which this decision was made to be clearly reflected in the final report of this meeting, and we ask that this statement be appended to the meeting report as an annex.172 Canada thus appeared satisfied that the mandatory Polar Code will not require any changes to NORDREG. We shall see if that expectation is satisfied. As noted above,173 the Working Group at MSC 93 decided, and MSC agreed, that Regulation XIV/2.5 read: 5. Nothing in this chapter [XIV] shall prejudice the rights or obligations of States under international law. This issue was not addressed at MEPC 67. 9 Summary For the convenience of the reader, the texts of the amendments adding Chapter XIV to SOLAS are set out in Appendix 1; portions of the amendments to Annexes I, II, IV and V of MARPOL that have been circulated for adoption at MEPC 68 are set out in Appendix 2; the Preface, Introduction and portions of Parts I-A and I-B of the Polar Code as adopted by MSC 94 are set out in Appendix 3; and portions of Parts II-A and II-B of the Polar Code expected to be adopted at MEPC 68 in May 2015 are set out in Appendix 4. Many of the technical provisions have been omitted as they are beyond the scope of this paper, and for space considerations.

172  Id., Annex 20, p. 12. 173  Text supra accompanying note 160.

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10 Conclusions The adoption of the Polar Code and amendments to make the Code mandatory, which are expected to become effective January 1, 2017, while a major accomplishment in themselves, are but the first step in the process of creating an effective Polar Code. A number of issues were not addressed in this initial effort, some of which are already supposed to be addressed in the future, e.g., those covering nonSOLAS ships. Others have been highlighted in the debates recorded in this paper and await proposals to future IMO meetings, e.g., adding the ice navigator, special navigational measures, and enhancing the environmental protection provisions. Certain legal lacuna should also be addressed, such as compliance with the requirement of SOLAS regulations I/1(a) and I/3(b) to include expressly nonSOLAS ships and ships not on international voyages, and ensuring Russian and Canadian ships on purely domestic voyages in the NSR and NWP (which now are the large majority of ships navigating within the Arctic) are required to comply with the Polar Code. Much has been accomplished over the past several years. Much remains to be done.

Appendix 1 Amending SOLAS to Make Mandatory Part I-A of the Polar Code

Chapter XIV Safety Measures for Ships Operating in Polar Waters Regulation 1—Definitions

For the purpose of this chapter: 1

Polar Code means the International Code for Ships Operating in Polar Waters, consisting of an introduction, parts I-A and II-A and parts I-B and II-B, as adopted by resolutions MSC.385(94) and of the Marine Envi­ ronment Protection Committee,174 as may be amended, provided that:

174  Refer to the resolution of adoption of the International Code for Ships Operating in Polar Waters, by the Marine Environment Protection Committee.

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4 5 6



1 2

3 4

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amendments to the safety-related provisions of the introduction and part I-A of the Polar Code are adopted, brought into force and take effect in accordance with the provisions of article VIII of the present Convention concerning the amendment procedures applicable to the annex other than chapter I; and amendments to part I-B of the Polar Code are adopted by the Maritime Safety Committee in accordance with its Rules of Procedure.

Antarctic area means the sea area south of latitude 60° S. Arctic waters means those waters which are located north of a line from the latitude 58°00΄.0 N and longitude 042°00΄.0 W to latitude 64°37΄.0 N, longitude 035°27΄.0 W and thence by a rhumb line to latitude 67°03΄.9 N, longitude 026°33΄.4 W and thence by a rhumb line to the latitude 70°49΄.56 N and longitude 008°59΄.61 W (Sørkapp, Jan Mayen) and by the southern shore of Jan Mayen to 73°31΄.6 N and 019°01΄.0 E by the Island of Bjørnøya, and thence by a great circle line to the latitude 68°38΄.29 N and longitude 043°23΄.08 E (Cap Kanin Nos) and hence by the northern shore of the Asian Continent eastward to the Bering Strait and thence from the Bering Strait westward to latitude 60° N as far as Il’pyrskiy and following the 60th North parallel eastward as far as and including Etolin Strait and thence by the northern shore of the North American continent as far south as latitude 60° N and thence eastward along parallel of latitude 60° N, to longitude 056°37΄.1 W and thence to the latitude 58°00΄.0 N, longitude 042°00΄.0 W. Polar waters means both Arctic waters and/or the Antarctic area. Ship constructed means a ship the keel of which is laid or which is at a similar stage of construction. At a similar stage of construction means the stage at which: .1 construction identifiable with a specific ship begins; and .2 assembly of that ship has commenced comprising at least 50 tonnes or 1% of the estimated mass of all structural material, whichever is less.

Regulation 2—Application

Unless expressly provided otherwise, this chapter applies to ships operating in polar waters, certified in accordance with chapter I. Ships constructed before 1 January 2017 shall meet the relevant requirements of the Polar Code by the first intermediate or renewal survey, whichever occurs first, after 1 January 2018. In applying part I-A of the Polar Code, consideration should be given to the additional guidance in part I-B of the Polar Code. This chapter shall not apply to ships owned or operated by a Contracting Government and used, for the time being, only in Government non-commercial

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1

2

3

4

Roach service. However, ships owned or operated by a Contracting Government and used, for the time being, only in Government non-commercial service are encouraged to act in a manner consistent, so far as reasonable and practicable, with this chapter. Nothing in this chapter shall prejudice the rights or obligations of States under international law.

Regulation 3—Requirements for Ships to Which This Chapter Applies

Ships to which this chapter applies shall comply with the requirements of the safety-related provision of the introduction, part I-A of the Polar Code and shall, in addition to the requirements of regulations I/7, I/8, I/9, and I/10, as applicable, be surveyed and certified, as provided for in that Code. Ships to which this chapter applies holding a certificate issued pursuant to the provisions of paragraph 1 shall be subject to the control established in regulations I/19 and XI-1/4. For this purpose, such certificates shall be treated as a certificate issued under regulation I/12 or I/13.

Regulation 4—Alternative Design and Arrangement

The goal of this regulation is to provide a methodology for alternative design and arrangements for structure, machinery, and electrical installations, fire safety and life-saving appliances and arrangements. Structural arrangements, machinery and electrical installation, fire safety design and arrangement measures and as well as life-saving appliances and arrangements may deviate from the prescriptive requirements set out in chapters 3, 6, 7 and 8 of the Polar Code, provided that the alternative design and arrangements meet the intent of the goal and functional requirements concerned and provide an equivalent level of safety to the requirements in those chapters. When alternative designs or arrangements deviate from the prescriptive requirements of chapters 3, 6, 7 and 8 of the Polar Code, an engineering analysis, evaluation and approval of the design and arrangements shall be carried out based on the Guidelines approved by the Organization.175 Any alternative designs or arrangement deviating from the prescriptive requirements shall be recorded in the Polar Ship Certificate and the ship’s Polar Water

175  Refer to the Guidelines for the approval of alternatives and equivalents as provided for in various IMO instruments (MSC.1/Circ.1455), the Guidelines on alternative design and arrangements for SOLAS chapters II-1 and III (MSC.1/Circ.1212) and the Guidelines on alternative design and arrangements for fire safety (MSC/Circ.1002), as applicable.

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Operational Manual, as required by the Polar Code, also defining the technical and operational measures and conditions for the allowed deviation.



Appendix 2 Amending MARPOL Annexes I, II, IV, V to Make Mandatory Part II-A

Draft Amendments to MARPOL Annexes I, II, IV and V To Make the Polar Code Mandatory

Annex I Regulations for the Prevention of Pollution by Oil Chapter 1 General Regulation 3—Exemptions and Waivers 1

2 3 4



5

In paragraph 1, the words “or section 1.2 of part II-A of the Polar Code” are inserted between “chapters 3 and 4 of this annex” and “relating to construction”. A new paragraph 5.2.2 is added as follows: .2 voyages within Arctic waters; or The existing paragraphs 5.2.2 to 5.2.6 are renumbered as paragraphs 5.2.3 to 5.2.7 and the subparagraphs are renumbered accordingly. The chapeau of the new paragraph 5.2.3 is replaced with the following: .3 voyages within 50 nautical miles from the nearest land outside special areas or Arctic waters where the tanker is engaged in:

Regulation 4—Exceptions

The chapeau is replaced with the following: Regulations 15 and 34 of this Annex and paragraph 1.1.1 of part II-A of the Polar Code shall not apply to:

Chapter 3 Requirements of Machinery of All Ships Part B Equipment 6

Regulation 14—Oil Filtering Equipment Paragraph 5.1 is replaced with the following:

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7



8 9



10

any ship engaged exclusively on voyages within special areas or Arctic waters, or In paragraph 5.3.4, between the words “with special areas” and “or has been accepted”, the words “or Arctic waters” are inserted.

Part C Control of Discharge of Oil

Regulation 15—Control of Discharge of Oil At the end of the title for section A, the words “except in Arctic waters” are added. At the end of the title for section C, the words “and Arctic waters” are added.

Chapter 4 Requirements for the Cargo Area of Oil Tankers Part C Control of Operational Discharges of Oil

Regulation 34—Control of Discharge of Oil At the end of the title for section A, the words “except in Arctic waters” are added.

Chapter 6 Reception Facilities Regulation 38—Reception Facilities 11

12



13

In paragraph 2.5, the words “and paragraph 1.1.1 of part II-A of Polar Code” are added after the words “regulations 15 and 34 of this annex”. In paragraph 3.5, the words “and paragraph 1.1.1 of part II-A of Polar Code” are added after the words “regulation 15 of this annex”.

Chapter 11 International Code for Ships Operating in Polar Waters

A new chapter 11 is added after existing chapter 10 as follows:

Chapter 11—International Code for ships operating in polar waters Regulation 46—Definitions For the purpose of this Annex, 1

Polar Code means the International Code for ships operating in polar waters, consisting of an introduction, parts I-A and II-A and parts I-B and II-B, as adopted by resolutions [MEPC. . . . (. . .)] and MSC.385(94), as may be amended, provided that:

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.1

2

3

amendments to the environment-related provisions of the introduction and chapter 1 of part II-A of the Polar Code are adopted, brought into force and take effect, in accordance with the provisions of article 16 of the present Convention concerning the amendment procedures applicable to an appendix to an annex; and .2 amendments to part II-B of the Polar Code are adopted by the Marine Environment Protection Committee in accordance with its Rules of Procedure. Arctic waters means those waters which are located north of a line from the latitude 58°00΄.0 N and longitude 042°00΄0 W to latitude 64°37΄0 N, longitude 035°27΄0 W and thence by a rhumb line to latitude 67°03΄9 N, longitude 026°33΄4 W and thence by a rhumb line to Sørkapp, Jan Mayen and by the southern shore of Jan Mayen to the Island of Bjørnøya, and thence by a great circle line from the Island of Bjørnøya to Cap Kanin Nos and hence by the northern shore of the Asian Continent eastward to the Bering Strait and thence from the Bering Strait westward to latitude 60°N as far as Il’pyrskiy and following the 60th North parallel eastward as far as and including Etolin Strait and thence by the northern shore of the North American continent as far south as latitude 60°N and thence eastward along parallel of latitude 60°N, to longitude 56°37΄1 W and thence to the latitude 58°00΄0 N, longitude 042°00΄0 W. [NOTE: amended in resolution MSC.386(94)] Polar waters means Arctic waters and/or the Antarctic area.

Regulation 47—Application and requirements 1 2

3

This chapter applies to all ships operating in polar waters. Unless expressly provided otherwise, any ship covered by paragraph 1 of this regulation shall comply with the environment-related ­provisions of the introduction and with chapter 1 of part II-A of the Polar Code, in addition to any other applicable requirements of this Annex. In applying chapter 1 of part II-A of the Polar Code, consideration should be given to the additional guidance in part II-B of the Polar Code.

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Appendix II Form of IOPP Certificate and Supplements Appendix Supplement to the International Oil Pollution Prevention Certificate (IOPP Certificate) (Forms A and B omitted) Annex II Regulations for the Control of Pollution of Noxious Liquid Subtances in Bulk Chapter 1 General Regulation 3—Exceptions

1



2



3

In the chapeau of paragraph 1, between the words “this Annex” and “shall not apply”, the words “and chapter 2 of part II-A of the Polar Code” are inserted.

Chapter 6 Measures of Control by Port States Regulation 16—Measures of Control

In paragraph 3, the reference to “regulation 13 and of this regulation” is replaced with “regulation 13 and of this regulation, and chapter 2 of part II-A of the Polar Code when the ship is operating in Arctic waters,”

Chapter 10 International Code for Ships Operating in Polar Waters

A new chapter 10 is added after existing chapter 9 as follows:

Chapter 10—International Code for ships operating in polar waters Regulation 21—Definitions For the purpose of this annex, 1 Polar Code means the International Code for ships operating in polar waters, consisting of an introduction, part I-A and part II-A and parts I-B and II-B, as adopted by resolutions [MEPC. . . . (. . .)] and MSC.385(94) as may be amended, provided that: .1 amendments to the environment-related provisions of the introduction and chapter 2 of part II-A of the Polar Code are adopted, brought into force and take effect in accordance with the provisions of article 16 of the present Convention concerning the amendment procedures applicable to an appendix to an annex; and

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.2

2

3

amendments to part II-B of the Polar Code are adopted by the Marine Environment Protection Committee in accordance with its Rules of Procedure. Arctic waters means those waters which are located north of a line from the latitude 58°00΄.0 N and longitude 042°00΄0 W to latitude 64°37΄0 N, longitude 035°27΄0 W and thence by a rhumb line to latitude 67°03΄9 N, longitude 026°33΄4 W and thence by a rhumb line to Sørkapp, Jan Mayen and by the southern shore of Jan Mayen to the Island of Bjørnøya, and thence by a great circle line from the Island of Bjørnøya to Cap Kanin Nos and hence by the northern shore of the Asian Continent eastward to the Bering Strait and thence from the Bering Strait westward to latitude 60°N as far as Il’pyrskiy and following the 60th North parallel eastward as far as and including Etolin Strait and thence by the northern shore of the North American continent as far south as latitude 60°N and thence eastward along parallel of latitude 60°N, to longitude 56°37΄1 W and thence to the latitude 58°00΄0 N, longitude 042°00΄0 W. [NOTE: amended in resolution MSC.386(94)] Polar waters means Arctic waters and/or the Antarctic area.

Regulation 22—Application and requirements 1 2

3

This chapter applies to all ships certified to carry noxious liquid substances in bulk, operating in polar waters. Unless expressly provided otherwise, any ship covered by paragraph 1 of this regulation shall comply with the environment-related provisions of the introduction and with chapter 2 of part II-A of the Polar Code, in addition to any other applicable requirements of this Annex. In applying chapter 2 of part II-A of the Polar Code, consideration should be given to the additional guidance in part II-B of the Polar Code.

Appendix IV Standard Format for the Procedures and Arrangements Manual (Omitted) Annex IV Regulations for the Prevention of Pollution by Sewage from Ships Chapter 1 General Regulation 3—Exceptions

1

The chapeau of paragraph 1 is replaced with the following:

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2

Regulation 11 of this Annex and section 4.2 of chapter 4 of part II-A of the Polar Code, shall not apply to:

Chapter 7 International Code for Ships Operating in Polar Waters

A new chapter 7 is added after existing chapter 6 as follows:

Chapter 7—International Code for ships operating in polar waters Regulation 17—Definitions For the purpose of this annex, 1 Polar Code means the International Code for ships operating in polar waters, consisting of an introduction, part I-A and part II-A and parts I-B and II-B, as adopted by resolutions [MEPC. . . . (. . .)] and MSC.385(94) as may be amended, provided that: .1 amendments to the environment-related provisions of the introduction and chapter 4 of part II-A of the Polar Code are adopted, brought into force and take effect in accordance with the provisions of article 16 of the present Convention concerning the amendment procedures applicable to an appendix to an annex; and .2 amendments to part II-B of the Polar Code are adopted by the Marine Environment Protection Committee in accordance with its Rules of Procedure. 2 Antarctic area means the sea area south of latitude 60° S. 3 Arctic waters means those waters which are located north of a line from the latitude 58°00.΄0 N and longitude 042°00΄0 W to latitude 64°37΄0 N, longitude 035°27΄0 W and thence by a rhumb line to latitude 67°03΄9 N, longitude 026°33΄4 W and thence by a rhumb line to Sørkapp, Jan Mayen and by the southern shore of Jan Mayen to the Island of Bjørnøya, and thence by a great circle line from the Island of Bjørnøya to Cap Kanin Nos and hence by the northern shore of the Asian Continent eastward to the Bering Strait and thence from the Bering Strait westward to latitude 60°N as far as Il’pyrskiy and following the 60th North parallel eastward as far as and including Etolin Strait and thence by the northern shore of the North American continent as far south as latitude 60°N and thence eastward along parallel of latitude 60°N, to longitude 56°37΄1 W and thence to the latitude 58°00΄0 N, longitude 042°00΄0 W. [NOTE: amended in resolution MSC.386(94)] 4 Polar waters means Arctic waters and/or the Antarctic area.

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Regulation 18—Application and requirements 3 4

This chapter applies to all ships operating in polar waters certified in accordance with this Annex. Unless expressly provided otherwise, any ship covered by paragraph 1 of this regulation shall comply with the environment-related provisions of the introduction and with chapter 4 of part II-A of the Polar Code, in addition to any other applicable requirements of this Annex.

Annex V Regulations for the Prevention of Pollution by Garbage from Ships Chapter 1 General Regulation 3—General Prohibition on Discharge of Garbage into the Sea 1



2

3

4



5

In paragraph 1, the reference to “regulation 4, 5, 6 and 7 of this Annex” are replaced with “regulation 4, 5, 6 and 7 of this Annex and section 5.2 of part II-A of the Polar Code, as defined in regulation 13.1 of this Annex.”

Regulation 7—Exceptions

The chapeau of paragraph 1 is replaced with the following: 1 Regulations 3, 4, 5 and 6 of this Annex and section 5.2 of chapter 5 of part II-A of the Polar Code shall not apply to: Paragraph 2.1 is replaced with the following: .1 The en route requirements of regulations 4 and 6 of this Annex and chapter 5 of part II-A of the Polar Code shall not apply to the discharge of food wastes where it is clear the retention on board of these food wastes presents an imminent health risk to the people on board.

Regulation 10—Placards, Garbage Management Plans and Garbage Record Keeping

In paragraph 1.1, the words “and section 5.2 of part II-A of the Polar Code” are added after the references to “regulations 3, 4, 5 and 6 of this Annex”.

Chapter 3 International Code for Ships Operating in Polar Waters

A new chapter 3 is added as follows:

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Roach Chapter 3—International Code for ships operating in polar waters Regulation 13—Definitions For the purpose of this Annex, 1 Polar Code means the International Code for Ships Operating in Polar Waters, consisting of an introduction, part I-A and part II-A and parts I-B and II-B, as adopted by resolutions [MEPC. . . . (. . .)] and MSC.385(94) as may be amended, provided that: .1 amendments to the environment-related provisions of the introduction and chapter 5 of part II-A of the Polar Code are adopted, brought into force and take effect in accordance with the provisions of article 16 of the present Convention concerning the amendment procedures applicable to an appendix to an annex; and .2 amendments to part II-B of the Polar Code are adopted by the Marine Environment Protection Committee in accordance with its Rules of Procedure. 2 Arctic waters means those waters which are located north of a line from the latitude 58°00.΄0 N and longitude 042°00΄0 W to latitude 64°37΄0 N, longitude 035°27΄0 W and thence by a rhumb line to latitude 67°03΄9 N, longitude 026°33΄4 W and thence by a rhumb line to Sørkapp, Jan Mayen and by the southern shore of Jan Mayen to the Island of Bjørnøya, and thence by a great circle line from the Island of Bjørnøya to Cap Kanin Nos and hence by the northern shore of the Asian Continent eastward to the Bering Strait and thence from the Bering Strait westward to latitude 60°N as far as Il’pyrskiy and following the 60th North parallel eastward as far as and including Etolin Strait and thence by the northern shore of the North American continent as far south as latitude 60°N and thence eastward along parallel of latitude 60°N, to longitude 56°37΄1 W and thence to the latitude 58°00΄0 N, longitude 042°00΄0 W. [NOTE: amended in resolution MSC.396(94)] 3 Polar waters means Arctic waters and/or the Antarctic area. Regulation 14—Application and requirements 1 2

This chapter applies to all ships to which this Annex applies, operating in polar waters. Unless expressly provided otherwise, any ship covered by paragraph 1 of this regulation shall comply with the environment-related provisions of the introduction and with chapter 5 of part II-A of the Polar Code, in addition to any other applicable requirements of this Annex.

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In applying chapter 5 of part II-A of the Polar Code, consideration should be given to the additional guidance in part II-B of the Polar Code.

Appendix Form of Garbage Record Book (omitted) Appendix 3 International Code for Ships Operating in Polar Waters Preamble, Introduction and Part I-A





1

2

3

4 5

6

7

Preamble

The international Code for Ships Operating in Polar Waters has been developed to supplement existing IMO instruments in order to increase the safety of ships’ operation and mitigate the impact on the people and environment in the remote, vulnerable and potentially harsh polar waters. The Code acknowledges that polar water operation may impose additional demands on ships, their systems and operation beyond the existing requirements of the International Convention for the Safety of Life at Sea (SOLAS), 1974, the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the 1978 Protocol relating thereto (MARPOL), as amended, and other relevant binding IMO instruments. The Code acknowledges that the Polar Waters impose additional navigational demands beyond those normally encountered. In many areas, the chart coverage may not currently be adequate for coastal navigation. It is recognized even existing charts may be subject to unsurveyed and uncharted shoals. The Code also acknowledges that coastal communities in the Arctic could be, and that polar ecosystems are, vulnerable to human activities, such as ship operation. The relationship between the additional safety measures and the protection of the environment is acknowledged as any safety measure taken to reduce the probability of an accident, will largely benefit the environment. While Arctic and Antarctic waters have similarities, there are also significant differences. Hence, although the Code is intended to apply as a whole to both Arctic and Antarctic, the legal and geographical differences between the two areas have been taken into account. The key principles for developing the Polar Code have been to use a risk-based approach in determining scope and to adopt a holistic approach in reducing identified risks.

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Introduction 1 Goal

The goal of this Code is to provide for safe ship operation and the protection of the polar environment by addressing risks present in polar waters and not adequately mitigated by other instruments of the Organization.

2 Definitions

For the purpose of this Code, the terms used have the meanings defined in the following paragraphs. Terms used in part I-A, but not defined in this section shall have the same meaning as defined in SOLAS. Terms used in part II-A, but not defined in this section shall have the same meaning as defined in article 2 of MARPOL and the relevant MARPOL Annexes. 2.1 2.2

2.3 2.4 2.5 2.6 2.7

2.8 2.9

Category A ship means a ship designed for operation in polar waters in at least medium first-year ice, which may include old ice inclusions. Category B ship means a ship not included in category A, designed for operation in polar waters in at least thin first-year ice, which may include old ice inclusions. Category C ship means a ship designed to operate in open water or in ice conditions less severe than those included in categories A and B. First-year ice means sea ice of not more than one winter growth developing from young ice with thickness from 0.3 m to 2.0 m.176 Ice free waters means no ice present. If ice of any kind is present this term shall not be used.177 Ice of land origin means ice formed on land or in an ice shelf, found floating in water.178 MARPOL means the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the 1978 Protocol relating thereto (MARPOL), as amended. Medium first-year ice means first-year ice of 70 cm to 120 cm thickness.179 Old ice means sea ice which has survived at least one summer’s melt; typical thickness up to 3 m or more. It is subdivided into residual first-year ice, secondyear ice and multi-year ice.180

176  Refer to the WMO Sea Ice Nomenclature. 177  Supra note 176. 178  Supra note 176. 179  Supra note 176. 180  Supra note 176.

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2.10 Open water means a large area of freely navigable water in which sea ice is present in concentrations less than 1/10. No ice of land origin is present.181 2.11 Organization means the International Maritime Organization. 2.12 Sea ice means any form of ice found at sea which has originated from the freezing of sea water.182 2.13 SOLAS means the International Convention for the Safety of Life at Sea, 1974, as amended. 2.14 STCW Convention means the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended. 2.15 Thin first-year ice means first-year ice 30 cm to 70 cm thick.

3

3.1

Sources of Hazards

The Polar Code considers hazards which may lead to elevated levels of risk due to increased probability of occurrence, more severe consequences, or both: .1 ice as it may affect hull structure, stability characteristics, machinery systems, navigation, the outdoor working environment, maintenance and emergency preparedness tasks, and malfunction of safety equipment and systems; .2 experiencing topside icing, with potential reduction of stability and equipment functionality; .3 low temperature as it affects the working environment and human performance, maintenance and emergency preparedness tasks, material properties and equipment efficiency, survival time and performance of safety equipment and systems; .4 extended periods of darkness or daylight as it may affect navigation and human performance; .5 high latitude as it affects navigation systems, communication systems and the quality of ice imagery information; .6 remoteness and possible lack of accurate and complete hydrographic data and information, reduced availability of navigational aids and seamarks with increased potential for groundings compounded by remoteness, limited readily deployable SAR facilities, delays in emergency response and limited communications capability, with the potential to affect incident response; .7 potential lack of ship crew experience in polar operations, with potential for human error;

181  Supra note 176. 182  Supra note 176.

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potential lack of suitable emergency response equipment, with the potential for limiting the effectiveness of mitigation measures; .9 rapidly changing and severe weather conditions, with the potential for escalation of incidents; and .10 the environment with respect to sensitivity to harmful substances and other environmental impacts and its need for longer restoration. 3.2 The risk level within polar waters may differ depending on the geographical location, time of the year with respect to daylight, ice-coverage, etc. Thus, the mitigating measures required to address the above specific hazards may vary within polar waters and may be different in Arctic and Antarctic waters.

4

Structure of the Code

This Code consists of Introduction, parts I and II. The Introduction contains mandatory provisions applicable to both parts I and II. Part I is subdivided into part I-A, which contains mandatory provisions on safety measures, and part I-B containing recommendations on safety. Part II is subdivided into part II-A, which contains mandatory provisions on pollution prevention, and part II-B containing recommendations on pollution prevention.

5 Figures Illustrating the Antarctic Area and Arctic Waters (Omitted) 1.1

Part I-A Safety Measures Chapter 1—General Structure of this part

Each chapter in this part consists of the overall goal of the chapter, functional requirements to fulfil the goal, and regulations. A ship shall be considered to meet a functional requirement set out in this part when either: .1 the ship’s design and arrangements comply with all the regulations associated with that functional requirement; or .2 part(s) or all of the ship’s relevant design and arrangements have been reviewed and approved in accordance with regulation 4 of SOLAS chapter XIV, and any remaining parts of the ship comply with the relevant regulations.

1.2 Definitions

In addition to the definitions included in the relevant SOLAS chapters and the introduction of this Code, the following definitions are applicable to this part.

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1.2.2 1.2.3 1.2.4 1.2.5

1.2.6

1.2.7

1.2.8 1.2.9

1.2.10

1.2.11

1.2.12

1.2.13

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Bergy waters means an area of freely navigable water in which ice of land origin is present in concentrations less than 1/10. There may be sea ice present, although the total concentration of all ice shall not exceed 1/10. Escort means any ship with superior ice capability in transit with another ship. Escorted operation means any operation in which a ship’s movement is facilitated through the intervention of an escort. Habitable environment means a ventilated environment that will protect against hypothermia. Icebreaker means any ship whose operational profile may include escort or ice management functions, whose powering and dimensions allow it to undertake aggressive operations in ice-covered waters. Ice Class means the notation assigned to the ship by the Administration or by an organization recognized by the Administration showing that the ship has been designed for navigation in sea-ice conditions. Maximum expected time of rescue means the time adopted for the design of equipment and system that provide survival support. It shall never be less than 5 days. Machinery Installations means equipment and machinery and its associated piping and cabling, which is necessary for the safe operation of the ship. Mean Daily Low Temperature (MDLT) means the mean value of the daily low temperature for each day of the year over a minimum 10 year period. A data set acceptable to the Administration may be used if 10 years of data is not available.183 Polar Class (PC) means the ice class assigned to the ship by the Administration or by an organization recognized by the Administration based upon IACS Unified Requirements. Polar Service Temperature (PST) means a temperature specified for a ship which is intended to operate in low air temperature, which shall be set at least 10°C below the lowest MDLT for the intended area and season of operation in polar waters. Ship intended to operate in low air temperature means a ship which is intended to undertake voyages to or through areas where the lowest Mean Daily Low Temperature (MDLT) is below −10°C. Tankers mean oil tankers as defined in SOLAS regulation II-1/2.22, chem‑ ical tankers as defined in SOLAS regulation II-1/3.19 and gas carriers as defined in SOLAS regulation VII-11.2.

183  Refer also to additional guidance in part I-B.

258 1.2.14

1.3

1.3.1 1.3.2

1.3.3

1.3.4

1.3.5

1.3.6

1.3.7

1.4

1.4.1

1.4.2

Roach Upper ice waterline means the waterline defined by the maximum draughts forward and aft for operation in ice.

Certificate and Survey

Every ship to which this Code applies shall have on board a valid Polar Ship Certificate. Except as provided for in paragraph 1.3.3, the Polar Ship Certificate shall be issued after an initial or renewal survey to a ship which complies with the relevant requirements of this Code. For category C cargo ships, if the result of the assessment in paragraph 1.5 is that no additional equipment or structural modification is required to comply with the Polar Code, the Polar Code Certificate may be issued based on documented verification that the ship complies with all relevant requirements of the Polar Code. In this case, for continued validity of the certificate, an on board survey should be undertaken at the next scheduled survey. The certificate referred to in this regulation shall be issued either by the Administration or by any person or organization recognized by it in accordance with SOLAS regulation XI-1/1. In every case, that Administration assumes full responsibility for the certificate. The Polar Ship Certificate shall be drawn up in the form corresponding to the model given in appendix 1 to this Code. If the language used is neither English, nor French nor Spanish, the text shall include a translation into one of these languages. The Polar Ship Certificate validity, survey dates and endorsements shall be harmonized with the relevant SOLAS certificates in accordance with the provisions of regulation I/14 of the SOLAS Convention. The certificate shall include a supplement recording additional equipment required by the Code. Where applicable, the certificate shall reference a methodology to assess operational capabilities and limitations in ice to the satisfaction of the Admin‑ istration, taking into account the guidelines developed by the Organization.184

Performance Standards

Unless expressly provided otherwise, ship systems and equipment addressed in this Code shall satisfy at least the same performance standards referred to in SOLAS. For ships operating in low air temperature, a polar service temperature (PST) shall be specified and shall be at least 10°C below the lowest MDLT for the

184  Refer to guidance to be developed by the Organization.

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intended area and season of operation in polar waters. Systems and equipment required by this Code shall be fully functional at the polar service temperature. For ships operating in low air temperature, survival systems and equipment shall be fully operational at the polar service temperature during the maximum expected rescue time.

1.5 Operational Assessment

In order to establish procedures or operational limitations, an assessment of the ship and its equipment shall be carried out, taking into consideration the following: .1 the anticipated range of operating and environmental conditions, such as: .1 operation in low air temperature; .2 operation in ice; .3 operation in high latitude; and .4 potential for abandonment onto ice or land; .2 hazards, as listed in section 3 of the Introduction, as applicable; and .3 additional hazards, if identified.

Chapter 2—Polar Water Operational Manual 2.1 Goal

The goal of this chapter is to provide the owner, operator, master and crew with sufficient information regarding the ship’s operational capabilities and limitations in order to support their decision-making process.

2.2

2.2.1 2.2.2 2.2.3

2.2.4 2.2.5

2.2.6

Functional Requirements

In order to achieve the goal set out in paragraph 2.1 above, the following functional requirements are embodied in the regulations of this chapter. The Manual shall include information on the ship-specific capabilities and limitations in relation to the assessment required under paragraph 1.5. The Manual shall include or refer to specific procedures to be followed in normal operations and in order to avoid encountering conditions that exceed the ship’s capabilities. The Manual shall include or refer to specific procedures to be followed in the event of incidents in polar waters. The Manual shall include or refer to specific procedures to be followed in the event that conditions are encountered which exceed the ship’s specific capabilities and limitations in paragraph 2.2.2. The Manual shall include or refer to procedures to be followed when using icebreaker assistance, as applicable.

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2.3 Regulations 2.3.1

2.3.2

2.3.3

2.3.4

2.3.5

2.3.6

In order to comply with the functional requirements of paragraphs 2.2.1 to 2.2.6, the Manual shall be carried on board. In order to comply with the functional requirements of paragraph 2.2.2, the Manual shall contain, where applicable, the methodology used to determine capabilities and limitations in ice. In order to comply with the functional requirements of paragraph 2.2.3, the Manual shall include risk-based procedures for the following: .1 voyage planning to avoid ice and/or temperatures that exceed the ship’s design capabilities or limitations; .2 arrangements for receiving forecasts of the environmental conditions; .3 means for addressing any limitations of the hydrographic, meteorological and navigational information available; .4 operation of equipment required under other chapters of this Code; and .5 implementation of special measures to maintain equipment and system functionality under low temperatures, topside icing and the presence of sea ice, as applicable. In order to comply with the functional requirements of paragraph 2.2.4, the Manual shall include risk-based procedures to be followed for: .1 contacting emergency response providers for salvage, search and rescue (SAR), spill response, etc. as applicable; and .2 in the case of ships ice strengthened in accordance with chapter 3, procedures for maintaining life support and ship integrity in the event of prolonged entrapment by ice. In order to comply with the functional requirements of paragraph 2.2.5, the Manual shall include risk-based procedures to be followed for measures to be taken in the event of encountering ice and/or temperatures which exceed the ship’s design capabilities or limitations. In order to comply with the functional requirements of paragraph 2.2.6, the Manual shall include risk-based procedures for monitoring and maintaining safety during operations in ice, as applicable, including any requirements for escort operations or ice breaker assistance. Different operational limitations may apply depending on whether the ship is operating independently or with icebreaker escort. Where appropriate, the PWOM should specify both options.

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Chapter 3—Ship Structure 3.1 Goal

The goal of this chapter is to provide that the material and scantling of the structure retain their structural integrity based on global and local response due to environmental loads and conditions.

3.2

3.2.1

Functional Requirements

In order to achieve the goal set out in 3.1 above, the following functional requirements are embodied in the regulations of this chapter: .1 for ships intended to operate in low air temperature, materials used shall be suitable for operation at the ships polar service temperature. .2 in ice strengthened ships, the structure of the ship shall be designed to resist both global and local structural loads anticipated under the foreseen ice conditions.

3.3 Regulations 3.3.1

3.3.2

In order to comply with the functional requirements of paragraph 3.2.1 above, materials of exposed structures in ships shall be approved by the Administration, or a recognized organization accepted by it, taking into account standards acceptable to the Organization185 or other standards offering an equivalent level of safety based on the polar service temperature. In order to comply with the functional requirements of paragraph 3.2.2 above, the following apply: .1 scantlings of category A ships shall be approved by the Administration, or a recognized organization accepted by it, taking into account standards acceptable to the Organization186 or other standards offering an equivalent level of safety. .2 scantlings of category B ships shall be approved by the Administration, or a recognized organization accepted by it, taking into account standards acceptable to the Organization187 or other standards offering an equivalent level of safety. .3 scantlings of ice strengthened category C ships shall be approved by the Administration, or a recognized organization accepted by it, taking into

185  Refer to IACS UR S6 Use of Steel Grades for Various Hull Members—Ships of 90 m in Length and Above (latest version) or IACS URI Requirements concerning Polar Class (latest version), as applicable. 186  Refer to Polar Class 1–5 of IACS URI Requirements concerning Polar Class (latest version). 187  Refer to Polar Class 6–7 of IACS URI Requirements concerning Polar Class (latest version).

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account acceptable standards adequate for the ice types and concentrations encountered in the area of operation. a Category C ship need not be ice strengthened if, in the opinion of the Administration, the ship’s structure is adequate for its intended operation.

Chapter 4—Subdivision And Stability 4.1 Goal

The goal of this chapter is to ensure adequate subdivision and stability in both intact and damaged conditions.

4.2

4.2.1

Functional Requirements

In order to achieve the goal set out in paragraph 4.1 above, the following functional requirements are embodied in the regulations of this chapter: .1 ships shall have sufficient stability in intact conditions when subject to ice accretion. .2 ships of category A and B, constructed on or after 1 January 2017, shall have sufficient residual stability to sustain ice-related damages.

4.3 Regulations

4.3.1 Stability in intact conditions 4.3.1.1 In order to comply with the functional requirements of paragraph 4.2.1, for ships operating in areas and during periods where ice accretion is likely to occur, the following icing allowance shall be made in the stability calculations: .1 30 kg/m2 on exposed weather decks and gangways; .2 7.5 kg/m2 for projected lateral area of each side of the vessel above the water plane; and .3 the projected lateral area of discontinuous surfaces of rail, sundry booms, spars (except masts) and rigging of vessels having no sails and the projected lateral area of other small objects should be computed by increasing the total projected area of continuous surfaces by 5% and the static moments of this area by 10%. 4.3.1.2 Ships operating in areas and during periods where ice accretion is likely to occur shall be: .1 designed to minimize the accretion of ice; and .2 equipped with such means for removing ice as the Administration may require; for example, electrical and pneumatic devices, and/or special tools such as axes or wooden clubs for removing ice from bulwarks, rails and erections.

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4.3.1.3 Information on the ice accretion stipulated in the stability calculations shall be given in the PWOM. 4.3.1.4 Ice accretion shall be monitored and appropriate measures taken to ensure that the ice accretion does not exceed the values given in the PWOM. 4.3.2 Stability in damaged conditions 4.3.2.1 In order to comply with the functional requirements of paragraph 4.2.2, ships of categories A and B, constructed on or after 1 January 2017, shall be able to withstand flooding resulting from hull penetration due to ice impact. The residual stability following ice damage shall be such that the factor si, as defined in SOLAS regulations II-1/7–2.2 and II-1/7–2.3, is equal to one for all loading conditions used to calculate the attained subdivision index in SOLAS regulation II-1/7. However, for cargo ships that comply with subdivision and damage stability regulations in another instrument developed by the Organization, as provided by SOLAS regulation II-1/4.1, the residual stability criteria of that instrument shall be met for each loading condition. 4.3.2.2 The ice damage extents to be assumed when demonstrating compliance with paragraph 4.3.2.1 shall be such that: .1 longitudinal extent is 4.5% of the upper ice waterline length if centred forward of the maximum breath on the upper ice waterline, and 1.5% of upper ice waterline length otherwise, and shall be assumed at any longitudinal position along the ship’s length; .2 the transverse penetration extent is 760 mm, measured normal to the shell over the full extent of the damage; and .3 vertical extent is the lesser of 20% of the upper ice waterline draught, or the longitudinal extent, and shall be assumed at any vertical position between the keel and 120% of the upper ice waterline draught.

Chapter 5—Watertight and Weathertight Integrity 5.1 Goal

The goal of this chapter is to provide measures to maintain watertight and weathertight integrity.

5.2

Functional Requirements

In order to achieve the goal set out in paragraph 5.1 above, all closing appliances and doors relevant to watertight and weathertight integrity of the ship shall be operable.

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5.3 Regulations

In order to comply with the functional requirements of paragraph 5.2 above, the following apply: .1 for ships operating in areas and during periods where ice accretion is likely to occur, means shall be provided to remove or prevent ice and snow accretion around hatches and doors. .2 in addition, for ships intended to operate in low air temperature the following apply: .1 if the hatches or doors are hydraulically operated, means shall be provided to prevent freezing or excessive viscosity of liquids; and .2 watertight and weathertight doors, hatches and closing devices which are not within an habitable environment and require access while at sea shall be designed to be operated by personnel wearing heavy winter clothing including thick mittens.

6.1

Chapter 6—Machinery Installations Goal

6.2

Functional Requirements

The goal of this chapter is to ensure that machinery installations are capable of delivering the required functionality necessary for safe operation of ships.

6.2.1

In order to achieve the goal set out in paragraph 6.1 above, the following functional requirements are embodied in the regulations of this chapter: 6.2.1.1 Machinery installations shall provide functionality under the anticipated environmental conditions, taking into account: .1 ice accretion and/or snow accumulation; .2 ice ingestion from seawater; .3 freezing and increased viscosity of liquids; .4 seawater intake temperature; and .5 snow ingestion. 6.2.1.2 In addition, for ships intended to operate in low air temperatures: .1 machinery installations shall provide functionality under the anticipated environmental conditions, also taking into account: .1 cold and dense inlet air; and .2 loss of performance of battery or other stored energy device; and .2 materials used shall be suitable for operation at the ships polar service temperature. 6.2.1.3 In addition, for ships ice strengthened in accordance with chapter 3, machinery installations shall provide functionality under the anticipated environmental conditions, taking into account loads imposed directly by ice interaction.

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6.3 Regulations 6.3.1

6.3.2

6.3.3

In order to comply with the functional requirement of paragraph 6.2.1.1 above, taking into account the anticipated environmental conditions, the following apply: .1 machinery installations and associated equipment shall be protected against the effect of ice accretion and/or snow accumulation, ice ingestion from sea water, freezing and increased viscosity of liquids, seawater intake temperature and snow ingestion. .2 working liquids shall be maintained in a viscosity range that ensures operation of the machinery. .3 seawater supplies for machinery systems shall be designed to prevent ingestion of ice,188 or otherwise arranged to ensure functionality. In addition, for ships intended to operate in low air temperatures, the following apply: .1 in order to comply with the functional requirement of paragraph 6.2.1.2 above, exposed machinery and electrical installation and appliances shall function at the polar service temperature. .2 in order to comply with the functional requirement of paragraph 6.2.1.2.1 above, means shall be provided to ensure that combustion air for internal combustion engines driving essential machinery is maintained at a temperature in compliance with the criteria provided by the engine manufacturer. .3 in order to comply with the functional requirements of paragraph 6.2.1.2.2 above, materials of exposed machinery and foundations shall be approved by the Administration, or a recognized organization accepted by it, taking into account standards acceptable to the Organization189, 190 or other standards offering an equivalent level of safety based on the polar service temperature. In addition, for ships ice strengthened in accordance with chapter 3, in order to comply with the functional requirements of paragraph 6.2.1.3 above, the following apply: .1 scantlings of propeller blades, propulsion line, steering equipment and other appendages of category A ships shall be approved by the Administration, or a recognized organization accepted by it, taking into

188  Refer to MSC/Circ.504, Guidance on design and construction of sea inlets under slush ice conditions. 189  Refer to Polar Class 1–5 of IACS URI Requirements concerning Polar Class (2011). 190  Refer to Polar Class 6–7 of IACS URI Requirements concerning Polar Class (2011).

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.2

.3

account standards acceptable to the Organization191 or other standards offering an equivalent level of safety. scantlings of propeller blades, propulsion line, steering equipment and other appendages of category B ships shall be approved by the Administration, or a recognized organization accepted by it, taking into account standards acceptable to the Organization192 or other standards offering an equivalent level of safety. scantlings of propeller blades, propulsion line, steering equipment and other appendages of ice-strengthened category C ships shall be approved by the Administration, or a recognized organization accepted by it, taking into account acceptable standards adequate with the ice types and concentration encountered in the area of operation.

Chapter 7—Fire Safety/Protection 7.1 Goal

The goal of this chapter is to ensure that fire safety systems and appliances are effective and operable, and that means of escape remain available so that persons on board can safely and swiftly escape to the lifeboat and liferaft embarkation deck under the expected environmental conditions.

7.2

7.2.1

7.2.2

Functional Requirements

In order to achieve the goal set out in paragraph 7.1 above, the following functional requirements are embodied in the regulations of this chapter: .1 all components of fire safety systems and appliances if installed in exposed positions shall be protected from ice accretion and snow accumulation; .2 local equipment and machinery controls shall be arranged so as to avoid freezing, snow accumulation and ice accretion and their location to remain accessible at all time; .3 the design of fire safety systems and appliances shall take into consideration the need for persons to wear bulky and cumbersome cold weather gear, where appropriate; .4 means shall be provided to remove or prevent ice and snow accretion from accesses; and .5 extinguishing media shall be suitable for intended operation. In addition, for ships intended to operate in low air temperature, the following apply:

191  Supra note 189. 192  Supra note 190.

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.2

267

all components of fire safety systems and appliances shall be designed to ensure availability and effectiveness under the polar service temperature; and materials used in exposed fire safety systems shall be suitable for operation at the polar service temperature.

7.3 Regulations 7.3.1

7.3.2

7.3.3

In order to comply with the requirement of paragraph 7.2.1.1, the following apply: .1 isolating and pressure/vacuum valves in exposed locations are to be protected from ice accretion and remain accessible at all time; and .2 all two-way portable radio communication equipment shall be operable at the polar service temperature. In order to comply with the requirement of paragraph 7.2.1.2, the following apply: .1 fire pumps including emergency fire pumps, water mist and water spray pumps shall be located in compartments maintained above freezing; .2 the fire main is to be arranged so that exposed sections can be isolated and means of draining of exposed sections shall be provided. Fire hoses and nozzles need not be connected to the fire main at all times, and may be stored in protected locations near the hydrants; .3 firefighter’s outfits shall be stored in warm locations on the ship; and .4 where fixed water-based firefighting systems are located in a space separate from the main fire pumps and use their own independent sea suction, this sea suction is to be also capable of being cleared of ice accumulation. In addition for ships intended to operate in low air temperature the following apply: .1 In order to comply with the requirement of paragraph 7.2.2.1, portable and semi-portable extinguishers shall be located in positions protected from freezing temperatures, as far as practical. Locations subject to freezing are to be provided with extinguishers capable of operation under the polar service temperature. .2 In order to comply with the functional requirements of paragraph 7.2.2.2 above, materials of exposed fire safety systems shall be approved by the Administration, or a recognized organization accepted by it, taking into account standards acceptable to the Organization193 or other

193  Refer to IACS UR S6 Use of Steel Grades for Various Hull Members—Ships of 90 m in Length and Above (2013) or IACS URI Requirements concerning Polar Class (2011).

268

Roach standards offering an equivalent level of safety based on the polar service temperature.

Chapter 8—Life-Saving Appliances and Arrangements 8.1 Goal

The goal of this chapter is to provide for safe escape, evacuation and survival.

8.2

Functional Requirements

In order to achieve the goal set out in paragraph 8.1 above, the following functional requirements are embodied in the regulations of this chapter: 8.2.1 Escape 8.2.1.1 Exposed escape routes shall remain accessible and safe, taking into consideration the potential icing of structures and snow accumulation. 8.2.1.2 Survival craft and muster and embarkation arrangements shall provide safe abandonment of ship, taking into consideration the possible adverse environmental conditions during an emergency. 8.2.2 Evacuation All life-saving appliances and associated equipment shall provide safe evacuation and be functional under the possible adverse environmental conditions during the maximum expected time of rescue. 8.2.3 Survival 8.2.3.1 Adequate thermal protection shall be provided for all persons on board, taking into account the intended voyage, the anticipated weather conditions (cold and wind), and the potential for immersion in polar water, where applicable. 8.2.3.2 Life-saving appliances and associated equipment shall take account of the potential of operation in long periods of darkness, taking into consideration the intended voyage. 8.2.3.3 Taking into account the presence of any hazards, as identified in the assessment in chapter 1, resources shall be provided to support survival following abandoning ship, whether to the water, to ice or to land, for the maximum expected time of rescue. These resources shall provide: .1 a habitable environment; .2 protection of persons from the effects of cold, wind and sun; .3 space to accommodate persons equipped with thermal protection adequate for the environment; .4 means to provide sustenance;

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269

safe access and exit points; and means to communicate with rescue assets.

8.3 Regulations

8.3.1 Escape In order to comply with the functional requirements of paragraphs 8.2.1.1 and 8.2.1.2 above, the following apply: .1 for ships exposed to ice accretion, means shall be provided to remove or prevent ice and snow accretion from escape routes, muster stations, embarkation areas, survival craft, its launching appliances and access to survival craft; .2 in addition, for ships constructed on or after 1 January 2017, exposed escape routes shall be arranged so as not to hinder passage by persons wearing suitable polar clothing; and .3 in addition, for ships intended to operate in low air temperatures, adequacy of embarkation arrangements shall be assessed, having full regard to any effect of persons wearing additional polar clothing. 8.3.2 Evacuation In order to comply with the functional requirements of paragraph 8.2.2 above, the following apply: .1 ships shall have means to ensure safe evacuation of persons, including safe deployment of survival equipment, when operating in ice-covered waters, or directly onto the ice, as applicable; and .2 where the regulations of this chapter are achieved by means of adding devices requiring a source of power, this source shall be able to operate independently of the ship’s main source of power. 8.3.3 Survival 8.3.3.1 In order to comply with the functional requirements of paragraph 8.2.3.1 above, the following apply: .1 for passenger ships, a proper sized immersion suit or a thermal protective aid shall be provided for each person on board; and .2 where immersion suits are required, they shall be of the insulated type. 8.3.3.2 In addition, for ships intended to operate in extended periods of darkness, in order to comply with the functional requirements of paragraph 8.2.3.2 above, searchlights suitable for continuous use to facilitate operation in ice shall be provided for each lifeboat. 8.3.3.3 In order to comply with the functional requirements of paragraph 8.2.3.3 above, the following apply:

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no lifeboat shall be of any type other than partially or totally enclosed type; and .2 taking into account the assessment referred to in chapter 1, appropriate survival resources, which address both individual (personal survival equipment) and shared (group survival equipment) needs, shall be provided, as follows: .1 life-saving appliances and group survival equipment that provide effective protection against direct wind chill for all persons on board; .2 personal survival equipment in combination with life-saving appliances or group survival equipment that provide sufficient thermal insulation to maintain the core temperature of persons; and .3 personal survival equipment that provide sufficient protection to prevent frostbite of all extremities. .3 in addition, whenever the assessment required under paragraph 1.5 identifies a potential of abandonment onto ice or land, the following apply: .1 group survival equipment shall be carried, unless an equivalent level of functionality for survival is provided by the ship’s normal life-saving appliances; .2 when required, personal and group survival equipment sufficient for 110% of the persons on board shall be stowed in easily accessible locations, as close as practical to the muster or embarkation stations; .3 containers for group survival equipment shall be designed to be easily movable over the ice and be floatable; .4 whenever the assessment identifies the need to carry personal and group survival equipment, means shall be identified of ensuring that this equipment is accessible following abandonment; .5 if carried in addition to persons, in the survival craft, the survival craft and launching appliances shall have sufficient capacity to accommodate the additional equipment; .6 passengers shall be instructed in the use of the personal survival equipment and the action to take in an emergency; and .7 the crew shall be trained in the use of the personal survival equipment and group survival equipment. 8.3.3.4 In order to comply with the functional requirements of paragraph 8.2.3.3.4 above, adequate emergency rations shall be provided, for the maximum expected time of rescue.

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Chapter 9—Safety of Navigation 9.1 Goal

The goal of this chapter is to provide for safe navigation.

9.2

Functional Requirements

In order to achieve the goal set out in paragraph 9.1 above, the following functional requirements are embodied in the regulations of this chapter. 9.2.1 Nautical Information Ships shall have the ability to receive up-to-date information including ice information for safe navigation. 9.2.2 Navigational Equipment Functionality 9.2.2.1 The navigational equipment and systems shall be designed, constructed, and installed to retain their functionality under the expected environmental conditions in the area of operation. 9.2.2.2 Systems for providing reference headings and position fixing shall be suitable for the intended areas. 9.2.3 Additional Navigational Equipment 9.2.3.1 Ships shall have the ability to visually detect ice when operating in darkness. 9.2.3.2 Ships involved in operations with an icebreaker escort shall have suitable means to indicate when the ship is stopped.

9.3 Regulations

9.3.1 Nautical Information In order to comply with the functional requirements of paragraph 9.2.1 above, ships shall have means of receiving and displaying information on ice conditions in the area of operation. 9.3.2 Navigational Equipment Functionality 9.3.2.1 In order to comply with the functional requirements of paragraph 9.2.2.1 above, the following apply: .1 ships constructed on or after 1 July 2017, ice strengthened in accordance with chapter 3, shall have either two independent echo-sounding devices or one echo-sounding device with two separate independent transducers; .2 ships shall comply with SOLAS regulation V/22.1.9.4, irrespective of the date of construction and the size and, depending on the bridge configuration, a clear view astern;

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for ships operating in areas, and during periods, where ice accretion is likely to occur, means to prevent the accumulation of ice on antennas required for navigation and communication shall be provided; .4 In addition, for ships ice strengthened in accordance with chapter 3, the following apply: .1 where equipment required by SOLAS chapter V or this chapter have sensors that project below the hull, such sensors shall be protected against ice; and .2 in category A and B ships constructed on or after 1 January 2017, the bridge wings shall be enclosed or designed to protect navigational equipment and operating personnel. 9.3.2.2 In order to comply with the functional requirement of paragraph 9.2.2.2 above, the following apply: .1 ships shall have two non-magnetic means to determine and display their heading. Both means shall be independent and shall be connected to the ship’s main and emergency source of power. .2 ships proceeding to latitudes over 80 degrees shall be fitted with at least one GNSS compass or equivalent, which shall be connected to the ship’s main and emergency source of power. 9.3.3 Additional Navigational Equipment 9.3.3.1 In order to comply with the functional requirement of paragraph 9.2.3.1 ships, with the exception of those solely operating in areas with 24 hours day light, shall be equipped with two remotely rotatable, narrow-beam search lights controllable from the bridge to provide lighting over an arc of 360 degrees, or other means to visually detect ice. 9.3.3.2 In order to comply with the functional requirement of paragraph 9.2.3.2, ships involved in operations with an icebreaker escort shall be equipped with a manually initiated flashing red light visible from astern to indicate when the ship is stopped. This light shall have a range of visibility of at least two nautical miles, the horizontal and vertical arcs of visibility shall conform to the stern light specifications required by the International Regulations for Preventing Collisions at Sea.

Chapter 10—Communication 10.1 Goal

The goal of this chapter is to provide for effective communication for ships and survival craft during normal operation and in emergency situations.

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Functional Requirements

In order to achieve the goal set out in paragraph 10.1 above, the following functional requirements are embodied in the regulations of this chapter. 10.2.1 Ship Communication 10.2.1.1 Two-way voice and/or data communications ship-to-ship and ship-to-shore shall be available at all points along the intended operating routes. 10.2.1.2 Suitable means of communications shall be provided where escort and convoy operations are expected. 10.2.1.3 Means for two-way on-scene and SAR coordination communications for search and rescue purposes including aeronautical frequencies shall be provided. 10.2.1.4 Appropriate communication equipment to enable telemedical assistance in polar areas shall be provided. 10.2.2 Survival Craft and Rescue Boat Communications Capabilities 10.2.2.1 For ships intended to operate in low air temperature, all rescue boats and lifeboats, whenever released for evacuation, shall maintain capability for distress alerting, locating and on-scene communications. 10.2.2.2 For ships intended to operate in low air temperature, all other survival craft, whenever released, shall maintain capability for transmitting signals for location and for communication. 10.2.2.3 Mandatory communication equipment for use in survival craft, including life­rafts, and rescue boats shall be capable of operation during the maximum expected time of rescue.

10.3 Regulations

10.3.1 Ship Communication 10.3.1.1 In order to comply with the functional requirements of paragraph 10.2.1.1 above, communication equipment on board shall have the capabilities for ship-to-ship and ship-to-shore communication, taking into account the limitations of communications systems in high latitudes and the anticipated low temperature. 10.3.1.2 In order to comply with the functional requirements of paragraph 10.2.1.2 above, ships intended to provide icebreaking escort shall be equipped with a sound signaling system mounted to face astern to indicate escort and emergency manoeuvres to following ships as described in the International Code of Signals. 10.3.1.3 In order to comply with the functional requirements of paragraph 10.2.1.3 above, two-way on-scene and SAR communication capability in ships shall include:

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voice and/or data communications with relevant rescue coordination centres; and .2 equipment for voice communications with aircraft on 121.5 and 123.1 MHz. 10.3.1.4 In order to comply with the functional requirements of paragraph 10.2.1.4 above, the communication equipment shall provide two-way voice and data communication with a Telemedical Assistance Service (TMAS). 10.3.2 Survival Craft and Rescue Boat Communications Capabilities 10.3.2.1 For ships intended to operate in low air temperature, in order to comply with the functional requirements of paragraph 10.2.2.1 above, all rescue boats and lifeboats, whenever released for evacuation, shall: .1 for distress alerting, carry one device for transmitting ship to shore alerts; .2 in order to be located, carry one device for transmitting signals for location; .3 for on-scene communications, carry one device for transmitting and receiving on-scene communications. 10.3.2.2 For ships intended to operate in low air temperature, in order to comply with the functional requirements of paragraph 10.2.2.2 above, all other survival craft shall: .1 in order to be located, carry one device for transmitting signals for location; and .2 for on-scene communications, carry one device for transmitting and receiving on-scene communications. 10.3.2.3 In order to comply with the functional requirements of paragraph 10.2.2.3 above, recognizing the limitations arising from battery life, procedures shall be developed and implemented such that mandatory communication equipment for use in survival craft, including life rafts, and rescue boats are available for operation during the maximum expected time of rescue.

Chapter 11—Voyage Planning 11.1 Goal

The goal of this chapter is to ensure that the Company, master and crew are provided with sufficient information to enable operations to be conducted with due consideration to safety of ship and persons on board and, as appropriate, environmental protection.

11.2

Functional Requirement

In order to achieve the goal set out in paragraph 11.1 above, the voyage plan shall take into account the potential hazards of the intended voyage.

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11.3 Requirements

In order to comply with the requirements of paragraph 11.2 above, the master shall consider a route through polar waters taking into account the following: .1 the procedures required by the PWOM; .2 any limitations of the hydrographic information and aids to navigation available; .3 current information on the extent and type of ice and icebergs in the vicinity of the intended route; .4 statistical information on ice and temperatures from former years; .5 places of refuge; .6 current information and measures to be taken when marine mammals are encountered relating to known areas with densities of marine mammals including seasonal migration areas;194 .7 current information on relevant ships’ routing systems, speed recommendations and vessel traffic services relating to known areas with densities of marine mammals including seasonal migration areas;195 .8 national and international designated protected areas along the route; and .9 operation in areas remote from search and rescue (SAR) capabilities.196

Chapter 12—Manning and Training 12.1 Goal

The goal of this chapter is to ensure that ships operating in polar waters are appropriately manned by adequately qualified, trained and experienced personnel.

12.2

Functional Requirements

In order to achieve the goal set out in paragraph 12.1 above, companies shall ensure that masters, chief mates and officers in charge of a navigational watch on board ships operating in polar waters shall have completed training to attain the abilities that are appropriate to the capacity to be filled and duties and responsibilities to be taken up, taking into account the provisions of the STCW Convention and the STCW Code, as amended. 194  Refer to MEPC/Circ.674 on Guidance document for minimizing the risk of ship strikes with cetaceans. 195  Refer to MEPC/Circ.674 on Guidance document for minimizing the risk of ship strikes with cetaceans. 196  Refer to MSC.1/Circ.1184 on Enhanced contingency planning guidance for passenger ships operating in areas remote from SAR facilities and A.999(25) on Guidelines on voyage planning for passenger ships operating in remote areas.

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12.3 Regulations 12.3.1

In order to meet the functional requirements of 12.2 above while operating in polar waters, masters, chief mates and officers in charge of a navigational watch shall be qualified in accordance with chapter V of the STCW Convention and the STCW Code, as amended, as follows:

Ice conditions

Tankers

Passenger ships

Other

Ice Free Open waters

Not applicable Basic training for master, chief mate and officers in charge of a navigational watch Advanced training for master and chief mate. Basic training for officers in charge of a navigational watch

Not applicable Basic training for master, chief mate and officers in charge of a navigational watch Advanced training for master and chief mate. Basic training for officers in charge of a navigational watch

Not applicable Not applicable

Other waters

12.3.2

Advanced training for master and chief mate. Basic training for officers in charge of a navigational watch

The Administration may allow the use of a person(s) other than the master, chief mate or officers of the navigational watch to satisfy the requirements for training, as required by paragraph 12.3.1, provided that: .1 this person(s) shall be qualified and certified in accordance with regulation II/2 of the STCW Convention and section A-II/2 of the STCW Code, and meets the advance training requirements noted in the above table; .2 while operating in polar waters the ship has sufficient number of persons meeting the appropriate training requirements for polar waters to cover all watches; .3 this person(s) is subject to the Administration’s minimum hours of rest requirements at all times; .4 when operating in waters other than open waters or bergy waters, the master, chief mate and officers in charge of a navigational watch on

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12.3.4

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passenger ships and tankers shall meet the applicable basic training requirements noted in the above table; and .5 when operating in waters with ice concentration of more than 2/10, the master, chief mate and officers in charge of a navigational watch on cargo ships other than tankers shall meet the applicable basic training requirements noted in the above table. The use of a person other than the officer of the navigational watch to satisfy the requirements for training does not relieve the master or officer of the navigational watch from their duties and obligations for the safety of the ship. Every crew member shall be made familiar with the procedures and equipment contained or referenced in the PWOM relevant to their assigned duties.

Part I-B Additional Guidance Regarding the Provisions of the Introduction and Part I-A

[Additional Guidance to chapters 1–8 omitted] Additional Guidance to Chapter 9 (Safety of Navigation)

10.1 Radars equipped with enhanced ice detection capability should be promoted used, in particular, in shallow waters. 10.2 As the chart coverage of polar waters in many areas may not currently be adequate for coastal navigation, navigational officers should: .1 exercise care to plan and monitor their voyage accordingly, taking due account of the information and guidance in the appropriate nautical publications; .2 be familiar with the status of hydrographic surveys and the availability and quality of chart information for the areas in which they intend to operate; .3 be aware of potential chart datum discrepancies with GNSS positioning; and .4 aim to plan their route through charted areas and well clear of known shoal depths, following established routes whenever possible. 10.3 Any deviations from the planned route should be undertaken with particular caution. For example, and when operating on the continental shelf: .1 the echo-sounder should be working and monitored to detect any sign of unexpected depth variation, especially when the chart is not based on a full search of the sea floor; and .2 independent cross-checking of positioning information (e.g. visual and radar fixing and GNSS) should be undertaken at every opportunity. Mariners should ensure to report to the relevant charting authority

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(­ Hydrographic Office) any information that might contribute to improving the nautical charts and publications. 10.4 Ships should be fitted with: .1 a suitable means to de-ice sufficient conning position windows to provide unimpaired forward and astern vision from conning positions; and .2 an efficient means for clearing melted ice, freezing rain, snow, mist and spray from outside and accumulated condensation from inside. A mechanical means to clear moisture from the outside face of a window should have operating mechanisms protected from freezing or the accumulation of ice that would impair effective operation.

11

11.1 11.1.1 11.1.2

11.1.3

11.1.4

Additional Guidance to Chapter 10 (Communication)

Limitations of communication systems in high latitude Current maritime digital communication systems were not designed to cover polar waters. VHF is still largely used for communication at sea, but only over short distances (line of sight) and normally only for voice communication. HF and MF are also used for emergency situations. Digital VHF, mobile phone systems and other types of wireless technology offer enough digital capacity for many maritime applications, but only to ships within sight of shore-based stations, and are, therefore, not generally available in polar waters. AIS could also be used for low data-rate communication, but there are very few base stations, and the satellite-based AIS system is designed for data reception only. The theoretical limit of coverage for GEO systems is 81.3° north or south, but instability and signal dropouts can occur at latitudes as low as 70° north or south under certain conditions. Many factors influence the quality of service offered by GEO systems, and they have different effects depending on the system design. Non-GMDSS systems may be available and may be effective for communication in polar waters.

Advice for the operation of multiple alerting and communication devices in the event of an incident A procedure should be developed to ensure that when survival craft are in close proximity, not more than two alerting or locating devices are activated (as required by regulation 10.3.2) at the same time. This is to: .1 preserve battery life; .2 enable extended periods of time for the transmission of alerting or locating signals; and .3 avoid potential interference. 11.2

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11.3

For satellite distress beacons, although multiple beacon transmissions can be detected successfully by the satellite system, it is not recommended to activate multiple beacons, unless the survival craft operating the beacons are widely dispersed, as this can cause interference on direction-finding equipment. 11.4 Advice on location and communication equipment to be carried by rescue boats and survival craft In determining the equipment to be carried for transmitting signals for location, the capabilities of the search and rescue resources likely to respond should be borne in mind. Responding ships and aircraft may not be able to home to 406/121.5 MHz, in which case other locating devices (e.g. AIS-SART) should be considered.

12

Additional Guidance to Chapter 11 (Voyage Planning)

In developing and executing a voyage plan ships should consider the following: .1 in the event that marine mammals are encountered, any existing best practices should be considered to minimize unnecessary disturbance; and .2 planning to minimize the impact of the ship’s voyage where ships are trafficking near areas of cultural heritage and cultural significance. See also additional guidance to chapter 9.

13

Additional Guidance to Chapter 12 (Manning and Training)

No additional guidance



Appendix 4 Polar Code Part II

1.1

[PART II-A197 Pollution Prevention Measures

Chapter 1 Prevention of Pollution by Oil Operational Requirements

1.1.1 In Arctic waters any discharge into the sea of oil or oily mixtures from any ship shall be prohibited.

197  Parts II-A and II-B are expected to be adopted by MEPC 68 (May 11–15, 2015).

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1.1.2 The provisions of paragraph 1.1.1 shall not apply to the discharge of clean or segregated ballast. 1.1.3 Subject to the approval of the Administration, a category A ship constructed before [date of entry into force] that cannot comply with paragraph 1.1.1 for oil or oily mixtures from machinery spaces and is operating continuously in Arctic waters for more than 30 days shall comply with paragraph 1.1.1 not later than the first intermediate or renewal survey, whichever comes first, one year after [the date of entry into force]. Until such date these ships shall comply with the discharge requirements of MARPOL Annex I, regulation 15.3. 1.1.4 Operation in polar waters shall be taken into account, as appropriate, in the Oil Record Books, manuals and the shipboard oil pollution emergency plan or the shipboard marine pollution emergency plan as required by MARPOL Annex I.

1.2

Structural Requirements

2.1

Chapter 2 Control of Pollution by Noxious Liquid Substances in Bulk Operational Requirements

1.2.1 For category A and B ships constructed on or after [date of entry into force] with an aggregate oil fuel capacity of less than 600 m3, all oil fuel tanks shall be separated from the outer shell by a distance of not less than 0.76 m. This provision does not apply to small oil fuel tanks with a maximum individual capacity not greater than 30 m3. 1.2.2 For category A and B ships constructed on or after [date of entry into force] of less than 600 tonnes deadweight, all cargo tanks constructed and utilized to carry oil shall be separated from the outer shell by a distance of not less than 0.76 m. 1.2.3 For category A and B ships constructed on or after [date of entry into force] all oil residue (sludge) tanks and oily bilge water holding tanks shall be separated from the outer shell by a distance of not less than 0.76 m. This provision does not apply to small tanks with a maximum individual capacity not greater than 30 m3.

2.1.1 In Arctic waters any discharge into the sea of noxious liquid substances, or mixtures containing such substances, shall be prohibited. 2.1.2 Operation in polar waters shall be taken into account, as appropriate, in the Cargo Record Book, the Manual and the shipboard marine pollution emergency plan for noxious liquid substances or the shipboard marine pollution emergency plan as required by MARPOL Annex II. 2.1.3 For category A and B ships constructed on or after [date of entry into force] the carriage of noxious liquid substances (NLS) identified in chapter 17, column e, as

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ship type 3 or identified as NLS in chapter 18 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk in cargo tanks of type 3 ships shall be subject to the approval of the Administration. The results shall be reflected on the International Pollution Prevention Certificate for the Carriage of Noxious Liquid Substances in Bulk or Certificate of Fitness identifying the operation in polar waters.



Chapter 3 Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Form

Kept blank intentionally.

Chapter 4 Prevention of Pollution by Sewage from Ships 4.1 Definitions

4.1.1 Constructed means a ship the keel of which is laid or which is at a similar stage of construction. 4.1.2 Ice-shelf means a floating ice sheet of considerable thickness showing 2 to 50 m or more above sea-level, attached to the coast.198 4.1.3 Fast ice means sea ice which forms and remains fast along the coast, where it is attached to the shore, to an ice wall, to an ice front, between shoals or grounded icebergs.199

4.2

Operational Requirements

4.2.1 Discharges of sewage within polar waters are prohibited except when performed in accordance with MARPOL Annex IV and the following requirements: .1 the ship is discharging comminuted and disinfected sewage in accordance with regulation 11.1.1 of MARPOL Annex IV at a distance of more than 3 nautical miles from any ice-shelf or fast ice and shall be as far as practicable from areas of ice concentration exceeding 1/10; or .2 the ship is discharging sewage that is not comminuted or disinfected in accordance with regulation 11.1.1 of MARPOL Annex IV and at a distance of more than 12 nautical miles from any ice-shelf or fast ice and shall be as far as practicable from areas of ice concentration exceeding 1/10; or

198  Refer to the WMO Sea-Ice Nomenclature. 199  Refer also to additional guidance in part I-B.

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the ship has in operation an approved sewage treatment plant200 certified by the Administration to meet the operational requirements in either regulation 9.1.1 or 9.2.1 of MARPOL Annex IV, and discharges sewage in accordance with regulation 11.1.2 of Annex IV and shall be as far as practicable from the nearest land, any ice-shelf, fast ice or areas of ice concentration exceeding 1/10. 4.2.2 Discharge of sewage into the sea is prohibited from category A and B ships constructed on or after [date of entry into force], and all passenger ships constructed on or after [date of entry into force], except when such discharges are in compliance with paragraph 4.2.1.3 of this chapter. 4.2.3 Notwithstanding the requirements of paragraph 4.2.1, category A and B ships that operate in areas of ice concentrations exceeding 1/10 for extended periods of time, may only discharge sewage using an approved sewage treatment plant certified by the Administration to meet the operational requirements in either regulation 9.1.1 or 9.2.1 of MARPOL Annex IV. Such discharges shall be subject to the approval by the Administration.

Chapter 5 Prevention of Pollution by Garbage from Ships 5.1 Definitions

5.1.1 Ice-shelf means a floating ice sheet of considerable thickness showing 2 to 50 m or more above sea-level, attached to the coast21. 5.1.2 Fast ice means sea ice which forms and remains fast along the coast, where it is attached to the shore, to an ice wall, to an ice front, between shoals or grounded icebergs.201

5.2

Operational Requirements

5.2.1 In Arctic waters, discharge of garbage into the sea permitted in accordance with regulation 4 of MARPOL Annex V, shall meet the following additional requirements: .1 discharge into the sea of food wastes is only permitted when the ship is as far as practicable from areas of ice concentration exceeding 1/10, but in any case not less than 12 nautical miles from the nearest land, nearest iceshelf, or nearest fast ice;

200  Refer to resolution MEPC.2(VI), resolution MEPC.159(55) or resolution MEPC.227(64) as applicable. 201  Refer to the WMO Sea-Ice Nomenclature.

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food wastes shall be comminuted or ground and shall be capable of passing through a screen with openings no greater than 25 mm. Food wastes shall not be contaminated by any other garbage type; .3 food wastes shall not be discharged onto the ice; .4 discharge of animal carcasses is prohibited; and .5 discharge of cargo residues that cannot be recovered using commonly available methods for unloading shall only be permitted while the ship is en route and where all the following conditions are satisfied: .1 cargo residues, cleaning agents or additives, contained in hold washing water do not include any substances classified as harmful to the marine environment, taking into account guidelines developed by the Organization; .2 both the port of departure and the next port of destination are within Arctic waters and the ship will not transit outside Arctic waters between those ports; .3 no adequate reception facilities are available at those ports taking into account guidelines developed by the Organization; and .4 where the conditions of subparagraphs 5.2.1.5.1, 5.2.1.5.2 and 5.2.1.5.3 of this paragraph have been fulfilled, discharge of cargo hold washing water containing residues shall be made as far as practicable from areas of ice concentration exceeding 1/10, but in any case not less than 12 nautical miles from the nearest land, nearest ice shelf, or nearest fast ice. 5.2.2 In the Antarctic area, discharge of garbage into the sea permitted in accordance with regulation 6 of MARPOL Annex V, shall meet the following additional requirements: .1 discharges under regulation 6.1 of MARPOL Annex V shall be as far as practicable from areas of ice concentration exceeding 1/10, but in any case not less than 12 nautical miles from the nearest fast ice; and .2 food waste shall not be discharged onto ice. 5.2.3 Operation in polar waters shall be taken into account, as appropriate, in the Garbage Record Book, Garbage Management Plan and the placards as required by MARPOL Annex V.]

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Part II-B Additional Guidance Regarding the Provisions of the Introduction and Part II-A

Additional Guidance to Chapter 1

Ships are encouraged to apply regulation 43 of MARPOL Annex I when operating in Arctic waters. 1.2 Non-toxic biodegradable lubricants or water-based systems should be considered in lubricated components located outside the underwater hull with direct seawater interfaces, like shaft seals and slewing seals.

2

Additional Guidance to Chapter 2

3

Additional Guidance to Chapter 5

4

Additional Guidance under Other Environmental Conventions and Guidelines

Category A and B ships, constructed on or after [date of entry into force] and certified to carry NLS, are encouraged to carry NLS identified in chapter 17, column e, as ship type 3 or identified as NLS in chapter 18 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk, in tanks separated from the outer shell by a distance of not less than 760 mm.

In order to minimize the risks associated with animal cargo mortalities, consideration should be given to how animal carcasses will be managed, treated, and stored on board when ships carrying such cargo are operating in polar waters. Reference is made in particular to the 2012 Guidelines for the implementation of MARPOL Annex V (resolution MEPC.219(63)) and the 2012 Guidelines for the development of garbage management plans (resolution MEPC.220(63)).

4.1 Until the International Convention for the Control and Management of Ships’ Ballast Water and Sediments enters into force, the ballast water management provisions of the ballast water exchange standard, set out in regulation D-1, or the ballast water performance standard, set out in regulation D-2 of the Con­ vention should be considered as appropriate. The provisions of the Guidelines for ballast water exchange in the Antarctic treaty area (resolution MEPC.163(56)) should be taken into consideration along with other relevant guidelines developed by the Organization. 4.2 In selecting the ballast water management system, attention should be paid to limiting conditions specified in the appendix of the Type Approval Certificate and the temperature under which the system has been tested, in order to ensure its suitability and effectiveness in polar waters.

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4.3 In order to minimize the risk of invasive aquatic species transfers via biofouling, measures should be considered to minimize the risk of more rapid degradation of anti-fouling coatings associated with polar ice operations. Reference is made in particular to the 2011 Guidelines for the control and management of ships’ biofouling to minimize the transfer of invasive aquatic species (resolution MEPC.207(62)). Table: Examples of matters related to anti-fouling systems taken into consideration by some ice-going ships (omitted) APPENDIX 1 Form of Certificate for Ships operating in Polar Waters [Omitted] Record of Equipment for the Polar Ship Certificate [Omitted] APPENDIX 2 Model Table of Contents for the Polar Water Operational Manual (PWOM) [Omitted]

CHAPTER 13

Comparison of Arctic Navigation Administration between Russia and Canada Leilei ZOU 1 Abstract Russia and Canada act as the de facto administrators for the Northern Sea Route and Northeast Passage in the Arctic, respectively. This essay makes a comparative study to explore their administrative philosophies and measures for Arctic waterways, where similarities and differences coexist. The comparative study is to facilitate a better understanding of Arctic navigation administration helping to prepare the international community for increased Arctic navigation. Emphasis is given to regional and international cooperation playing a key role in promoting Arctic waterways to be both politically and physically safe for future navigation.

Keywords Russia – Canada – Northern Sea Route – Northwest Passage – Comparative study – Administration

Arctic navigation is no longer an illusion. The central Arctic sea route is predicted to be the last to be opened for navigation due to its harsh conditions of multiyear sea ice, while commercial shipping on the Northern Sea Route (hereinafter referred to as NSR) and the Northwest Passage (hereinafter referred to as NWP) has been moved high on the agenda. As the de facto administrators for the NSR and NWP waterways), Russia and Canada share many similarities

1  Associate Professor at the Research Institute of Marine Policies and Regulations at Shanghai Ocean University (China); Visiting Scholar at the Center for Oceans Law and Policy, University of Virginia, 2014–2015. Research interests include marine environmental protection, polar governance, polar fisheries management, and fisheries sustainability. Email: [email protected].

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004314252_015

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in their administrative modes due to the similar challenges and opportunities that they encounter in Arctic waterways administration. Similarities lie in the following: Russia and Canada are the largest Arctic countries, possessing the longest Arctic coastlines and evident geographical advantages; the development of the Arctic region and Arctic navigation hold great impacts and significance for the two countries in terms of politics, economics, and military strategies; Russia and Canada, as the de facto administrators for the Arctic waterways, are the only Arctic countries who have developed and implemented domestic laws for Arctic waterways administration; and the international community is still in dispute over the two countries’ sovereignty claims to the Arctic waterways. Nevertheless, there are differences between Russia and Canada’s Arctic waterways administration, and the following comparative study reveals their distinctive political, social, economic, and even ideological characteristics, all of which play a key role in forming their different Arctic waterways policies. From a comparative perspective, the paper will undertake an in-depth analysis of the two countries’ differences in sovereignty claims over Arctic waterways, economic interests, attitudes towards the prospects of commercial shipping in the Arctic, as well as the administrative measures from the perspective of military strategies and environmental protection. The purpose of this comparative study is to facilitate a more informed response from the international community to the forthcoming Arctic navigation. 1

The Current Situations of the NSR and NWP

Before the comparative study of the NSR and the NWP is set out, it is important to recognize the navigational conditions and the significance of the Arctic waterways for a better understanding of the impact that navigation on the NSR and the NWP will have on the international community in the future. 1.1 Why the NSR and NWP Matter The NSR begins at the Shetland Islands at the western end of Russia and extends eastwards along the coastal straits of the Russian Arctic Ocean to the Bering Strait. Most of the NSR waters are Russian controlled seas. When the NSR becomes a navigable commercial shipping route, it can replace the Far East– Northwest Europe route via the Suez Canal, a traditional shipping route with great amounts of cargo transit and extensive piracy dangers. The NWP stretches from the North Atlantic Ocean’s Davis Strait and Baffin Island in the east westwards to the Canadian Arctic Archipelago, goes along Alaska’s northern offshore straits, passes by the Bering Strait, and finally

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reaches the Pacific Ocean. Once it is navigable, the NWP can replace the traditional overloaded Far East–North American route spanning across the North Pacific through the Panama Canal. The NWP not only provides shortcut shipping routes but also relieves the overload at the Panama Canal. In general, in comparison to the traditional routes via the Panama Canal or the Suez Canal, the NSR and NWP have advantages in common, namely the economic benefits of a shorter voyage, the capacity for passage of large cargo vessels, and relief for the overload of traditional routes.2 Therefore, the full-scale commercial navigation in the NSR and NWP will change the world’s shipping transportation layouts, and has the potential to drive economic and industrial development in coastal regions and countries along these Arctic waterways. Furthermore, trade in the Arctic region, which depends on shipping between Europe, Asia, and the United States, will further prosper. The prospects of navigation in the NSR receive much more attention from the international community than the NWP mainly for two reasons: first, the NSR is a legitimate alternative to the Suez Canal which suffers from political fragility and an insecure environment, and second, the prospect of shortening shipping routes by 25% to 55% (versus: the NWP by 20%).3 Thus, the potential commercial value of the NSR seems greater. Navigation on the Arctic waterways is of great significance to China as a “near-Arctic” country.4 Zhang Xia from the Polar Research Institute of China (PRIC) assesses that the opening of the Arctic waterways will change the industrial outlook in the coastal regions of China, bringing forth changes in their economic development modes; it may also bring about new development opportunities for the Yangtze Delta and the surrounding areas of the Bohai Bay port; it is hopeful that the new Arctic shipping will also inspire subsequent development in the northeastern regions of China connecting to North Korea in the east and sharing borders with Russia in the north.5 Therefore, the benefits of Arctic navigation have drawn great attention from China as well as from the international community. However, undeniably, the 2  Y. Wang and J. Shou, 2012, The Impact of Navigation in the Arctic Northeast Passage on China’s Shipping Industry, INTERNATIONAL TRADE, October, pp. 180–182, in Chinese. 3  X. Zhang, J. Tu, P. Guo, K. Sun and X. Ling, 2009, Evaluation of the Economic Potential of the Arctic Shipping Routes and its Strategic Significance to China’s Economic Development, CHINA SOFT SCIENCE MAGAZINE, PART 2, pp. 86–93, in Chinese. 4  J. LU, ARCTIC GEOPOLITICS AND CHINA’S RESPONSE. Beijing: Current Affairs Publishing House, 2010, in Chinese. 5  Supra note 2.

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harsh natural environment and changing seasons of the Arctic put stringent restrictions on vessel navigation, personnel and so on, which, to a certain extent, offset the advantages of sailing in the Arctic. 1.2 Arctic Commercial Shipping With longer warm seasons in the Arctic, there are increasing positive prospects of Arctic waters being used as the new shipping express route connecting Asia to both the United States and Europe. In the summer of 2009, two German ships were recorded as the first foreign commercial vessels in history to sail through the NSR. They were not icebreaker vessels, which has to some extent marked the start of a new navigable international sea route. Statistics from the NSR Information Office indicate that in the summer of 2011, 41 cargo vessels sailed through the NSR, in 2012 it almost doubled to 71 vessels, and in 2014 it dropped to 53 vessels, which indicates the decisive role of ice conditions in NSR navigability. The NSR navigation period now extends from late-June to late-November, with the potential to stretch to six months by the use of higher ice-class vessels. The Canadian Broadcasting Corporation’s website released that, in September 2008, a Canadian commercial ship successfully completed a sailing trip from Montreal to the western region of Nunavut without a piloting ice-breaker vessel. The Canadian Coast Guard assessed it as “the first commercial shipping through the NWP.”6 As of yet, there has not been more commercial shipping of considerable scale in the NWP in contrast with the NSR. However, as the Arctic ice melts away and the improvement of waterway facilities is enhanced, it may only be a matter of time before the NWP is cleared for international shipping and navigation. 2

Comparative Study of Administration for the NSR and NWP

A comparative study of the Russian and Canadian Arctic waterways administrations provides insights into the two countries’ attitudes towards sovereignty claims, potential economic benefits, and prospects of Arctic navigation. Their Arctic waterways administration measures reflect distinctive characteristics of their respective current policies and trends.

6  CBC News, 2008, First Commercial Ship Sails through Northwest Passage, available at http://www.cbc.ca/news/canada/north/1st-commercial-ship-sails-through-northwestpassage-1.715493 (accessed on September 24, 2014).

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2.1 Sovereignty Claims Russia is the largest Arctic country with the longest Arctic coastline. Thus, Arctic interests are of obvious importance to the country. Moreover, consistent with its strong political position, it has also taken on a relatively tough attitude in Arctic affairs, particularly with regards to Arctic sovereignty claims. As the Russian economy has slowly recovered since its 1991 collapse, Russia has also been increasingly building up its military forces in the Arctic. In December 2013, Vladimir Putin, the Russian President, instructed the Ministry of Defense to boost Russia’s military presence in the Arctic in order to safeguard national interests and security. To convey its firm stance on Arctic matters to the international community, Russia has continually conducted military exercises in the Arctic, and strengthened the construction of both hardware and software facilities to ensure Arctic military security. In so doing, Russia is conveying a message to the international community that the Russian government will not hesitate to utilize all its forces, including the military, to defend its sovereignty and national interests in the Arctic. In order to gain full control and management over the NSR, Russia is willing to pay all costs, even going beyond the provisions of international law. There are numerous examples of Russia’s tough attitude to sovereignty claims of the NSR. For example, before the release in 2013 of the Rules of Navigation in the Water Area of Northern Sea Route (hereinafter referred to as the 2013 Rules),7 in which the legal definition of the NSR indicates that NSR is in the Russian Arctic Ocean internal waters, territorial seas and Exclusive Economic Zone (EEZ), the then Soviet Union unilaterally declared that its domestic Arctic laws were also applicable to the broad area beyond 200 nautical miles of Russia’s EEZ, the Arctic high seas,8 which means that foreign vessels sailing in international waters near Russia’s EEZ were subject to Russian domestic laws. Notwithstanding, the international community claims that although most of the NSR is within Russian controlled waters, some pass through the high seas.9 Despite this, the Soviet Union claimed most Arctic waters as internal waters 7  The Northern Sea Route Administration, 2013, Rules of Navigation in the Water Area of the Northern Sea Route, (Unofficial translation), available at http://www.nsra.ru/en/pravila_ plavaniya/ (accessed on September 24, 2014). 8  Union of Soviet Socialist Republics, Decree of the Union of Soviet Socialist Republics on the Economic Zone, February 29, 1984, Chinese translation. Union of Soviet Socialist Republics, Edict on Intensifying Nature Protection in Areas of the Far North and Marine Areas Adjacent to the Northern Coast of the USSR, 1984, Chinese translation. 9  J. ROACH AND R. SMITH, UNITED STATES RESPONSES TO EXCESSIVE MARITIME CLAIMS (2nd edition), The Hague: Martinus Nijhoff, 1996, pp. 16, 202.

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under its ‘historic rights’ in its 1960-Frontier Law.10 This line was continued in the important Arctic strategic document Principles of State Policy of the Russian Federation in the Arctic for the Period up to 2020 and Beyond 11 (hereinafter referred to as the 2020 Russian Arctic Principles) released by the Russian government in 2008, which states that any attempt to challenge Russia’s sovereign over the NSR shall be deemed as a challenge to Russia’s national s­ overeignty.12 Besides, in order to combat international claims of the NSR being used for transit passage or innocent passage, Russia unilaterally implemented a strict “mandatory reporting” system for foreign vessels passing through the NSR, and even in the case where icebreaking and pilotage services were not needed, vessels were obligated to accept the services and pay the fees.13 Russia also made an Arctic contaminants list via domestic legislation.14 The list included items beyond that of an internationally accepted list, which was criticized as going beyond international standards. Russia also denied the immunity of foreign government vessels operated for non-commercial purposes,15 violating the provisions in the United Nations Convention on the Law of the Sea (hereinafter referred to as UNCLOS). Before its navigation through the NSR for its 2012 Arctic expedition, Xuelong, a Chinese government research vessel, had to make a prior notification to the NSR Administration, a management body for NSR, which granted the navigation permission to Xuelong. Additionally, Xuelong had to pay for ice-breading and pilotage services when it travelled through NSR although it was well-equipped for independent travelling. All these unilateral 10  U  nion of Soviet Socialist Republics, Edict of 5 August 1960 (USSR), Statute on the Protection of the State Frontiers of the USSR, no. 34, text 324, Chinese translation. 11  The Security Council of the Russian Federation, 2008, Principles of State Policy of the Russian Federation in the Arctic for the Period up to 2020 and Beyond. Available at http:// www.scrf.gov.ru/documents/98.html (accessed on September 24, 2014), in Russian. 12  Supra note 10. 13  Union of Soviet Socialist Republics, Regulations for Navigation on the Seaways of the Northern Sea Route, adopted in 1990. Available at http://www.arctic-lio.com/nsr_ legislation (accessed on July 25, 2015). Government of the Russian Federation, Federal Law No. 155-FZ on Internal Sea Waters, Territorial Sea and Contiguous Zone of the Russian Federation, 1998, Article 14, July 31, Chinese translation. 14  Union of Soviet Socialist Republics, Edict on Intensifying Nature Protection in Areas of the Far North and Marine Areas Adjacent to the Northern Coast of the USSR, 1984. Government of the Russian Federation, Federal Act on the exclusive economic zone of the Russian Federation, 1998. Available at http://www.un.org/depts/los/LEGISLATIONANDTREATIES/ PDFFILES/RUS_1998_Act_EZ.pdf (accessed on September 25, 2014). 15  Chircop, I. Bunik, M. McConnell and K. Svendsen, 2014, Comparative Perspectives on the Governance of Navigation and Shipping in Canadian and Russian Arctic Waters, OCEAN YEARBOOK, 28, 291–327.

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moves reflect the hard-line attitude that Russia takes toward sovereignty and rigid control of the NSR. Contrary to Russia’s tough political stances and gestures of military power in claiming sovereignty over the NSR, Canada is showing itself to be more refined in its administration of the NWP. Although Canada is also a pivotal Arctic country, it demonstrates its important Arctic status by paying more attention to environmental protection as well as to the promotion of social and economic development in the Arctic. Considering its political, economic, and military realities, Canada tends to seek a more flexible approach within an international law framework to lay claims for its Arctic sovereignty in spite of the indications that in recent years its stance on sovereignty over the NWP has become clearer and it has carried out more concrete measures in the administration of the NWP.16 In 1969, the American oil tanker Manhattan, without seeking Canadian permission, sailed through the NWP, disregarding the Canadian government’s claim that the NWP falls within the internal waters of the Canadian Arctic archipelago. With their sovereignty claim over the NWP challenged, the Canadian government introduced the Arctic Waters Pollution Prevention Act (hereinafter referred to as AWPPA) in 1970 to strengthen its administration of the NWP in the name of environmental protection. Furthermore, to obtain international acceptance of the AWPPA as a customary law, the government of Canada exercised its diplomatic talents and negotiating strategy by succeeding in incorporating the AWPPA concepts into UNCLOS under Article 234 for “ice-covered areas”. Relying on strategic unilateralism, the Canadian government made its sovereignty claims over the NWP in a roundabout fashion within the framework of international law. In spite of the United States’ claim of both NWP and NSR as international straits for transit passage, Canada and Russia essentially share similar desires to claim sovereignty over the Arctic Passages as within internal waters on either historic grounds or on the basis of straight baselines. Numerous writings have demonstrated that both historic titles and straight baselines fail to provide grounds for a valid sovereign claim over Arctic passages as within internal waters. Hence, unilateralism is what Russia and Canada frequently fall back on for their claims. However, apart from the unilateralism, the two countries take different approaches in making those claims.

16  L. Zou and Y. Fu, 2014, Canadian Administration of the Northwest Passage and the Favorable and Restraining Factors in its Sovereignty Claims, PACIFIC JOURNAL, 22(2), in Chinese, pp. 1–7.

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For the sake of international peace and harmony, both Canada and Russia should discard their unilateralist tendencies and adopt more collaborative attitudes to strengthen international cooperation between Arctic and nonArctic States as well as among Arctic States. The two countries should actively communicate and cooperate with such important organizations as the Arctic Council, the International Maritime Organization, and the United Nations itself to resolve disputes. 2.2 Trade-offs Between Economic Interests and Sovereignty Claims While dealing with disputes over sovereignty rights, both Russia and Canada are also well aware of the potential economic benefits that come with Arctic navigation. Given strong international demands for transit passage and innocent passage through the Arctic, together with the ambiguity and the limited capability of international law to put an end to disputes, it is difficult in the short term to reach a conclusion on the matter of sovereignty rights for Arctic waterways. As noted, administrative measures that Russia and Canada take to govern the Arctic waterways reflect their respective different policies. When it comes to Russia, sovereignty over the waterways seems like a “done deal” because of its powerful military and hardline political style. Thus, Russia seems more eager to tap into the substantial economic potential that comes from Arctic navigation. In the times of the Soviet Union the NSR navigation was never on the agenda for reasons of harsh natural conditions. However, as the prospect of NSR navigation becomes brighter, coupled with the rising political confidence of Putin’s Russian government, Russia has launched an initiative to promote international navigation in its Arctic waterway. It is also thought of as one of its strategies for economic recovery by promoting development in the Russian Far East region with the opening of the NSR and its development along with the vitality and flourishing development in Northeast Asia. Russia’s economic-oriented philosophy regarding NSR administration is evident in its mandatory fee system. According to the 1991 Regulations for Navigation on the Seaways of the Northern Sea Route (hereinafter referred to as the 1991 Regulations), any foreign vessel sailing in the NSR, whether in the EEZ or internal waters, had to accept icebreaking and pilotage services and pay for them, regardless of whether or not the actual situation required such services.17 The costs of the icebreaker service fees were high and only applied to foreign

17   Union of Soviet Socialist Republics, Regulations for Navigation on the Seaways of the Northern Sea Route, adopted in 1990. Available at http://www.arctic-lio.com/nsr_ legislation (accessed on July 25, 2015).

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vessels. The Russian domestic system’s overemphasis on the economic benefits from the Arctic waterway has drawn widespread international criticism. As for economic interests and sovereignty claims for the Arctic waterway, Russia seems keener on the former, while Canada gives persistent priority to the latter, which may be attributed to the different political realities of the two countries. The United States firmly holds the position that the Arctic waterways are subject to international navigation. As Russia is by nature the political competitor of the United States, “confrontation” is the main theme in its bilateral relations. However, the political and economic status of Canada determines its alliance with the United States, its strong neighboring state. Thus, Canada is most concerned about the opposing view of the United States on the issue of sovereignty of Canada’s NWP, and sovereignty claims have become one of the ultimate goals in their administration for the NWP. The AWPPA is important Canadian domestic legislation for the prevention of marine pollution in the Arctic waters. Besides AWPPA’s purpose for environmental protection, Canada seeks to fulfill its sovereignty claims over the NWP with AWPPA as well. Contrary to Russia’s enforcement of the mandatory reporting system, Canada required a voluntary registration for foreign vessels passing through the NWP before 2010. It was only after the implementation of the Northern Canada Vessel Traffic Services Zone Regulations in 2010 that mandatory reporting was enforced.18 The establishment of the mandatory-reporting system reflects the persistent attitude that Canada holds for its sovereignty claim for the NWP, and is also an indication that Canada attaches increasing importance to this issue. According to the Canadian Oceans Act, Canada only charges ships navigating in the NWP the actual costs for services provided; the costs for search and rescue services are not charged.19 As can be observed, mandatory reporting is the common ground between Canada and Russia, but mandatory fees are charged only by Russia. Nevertheless, there are still significant differences between the two countries’ mandatory reporting systems. Canada adopts the friendly and cooperative attitude for “you apply and you pass”. To date, there have not been any cases where access is denied after application. However, according to data released by the NSR Administration,

18  Government of Canada, 2010, Northern Canada Vessel Traffic Services Zone Regulations. Available at http://laws-lois.justice.gc.ca/PDF/SOR-2010-127.pdf (accessed on July 29, 2015). 19  Government of Canada, 1996, Oceans Act. Available at http://laws-lois.justice.gc.ca/eng/ acts/o-2.4/ (accessed on July 25, 2015).

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Russia had already rejected 83 navigation applications in 2013 and 30 in 2014.20 It also shows that Canada’s mandatory reporting system is an option for declaring sovereignty, whereas Russia asserts its identity as the “sovereign owner” by forceful management of the waterways and sovereignty does not seem to be the most important issue on their minds. Instead, exploitation of the economic potential of the waterway is what really matters to Russia. Arctic Navigation Prospects from the Canadian and Russian Perspective In recent years, Russia and Canada have both drawn up their national Arctic strategies. The attitudes and future policies towards Arctic navigation can be derived from the descriptions of their national Arctic strategies. Russia prom­ ulgated the Principles of State Policy of the Russian Federation in the Arctic for the Period up to 2020 and Beyond in 2008,21 where the importance of Arctic maritime traffic to their nation is highlighted and a firm determination to enhance waterways infrastructure is expressed, affirming their confidence in opening the NSR. President Putin publicly declared in 2013 that Russia would be building the NSR into a world-class route on par with such traditional channels as the Suez Canal, the Panama Canal and other important shipping routes. In 2009, Canada released Canada’s Northern Strategy,22 stating “the North­ west Passage is not expected to become a safe or reliable transportation route in the near future”, expressing cautiousness and pessimism towards the opening of the NWP. In spite of the fact that the role of opening the NWP is acknowledged in enhancing social and economic development, it is highlighted that the conditions are not yet favorable for NWP navigation. In comparison to the conservative and cautious attitude of the Canadian government, the Russian government’s attitude towards the NSR is more positive and proactive. 2.3

2.3.1 Russia’s Measures to Promote the Opening of the NSR Russia’s profit-oriented mandatory fee system implemented for the NSR was heavily attacked by the international community. There is evidence that the Russian government is making a remedy. In order to effectively promote the NSR as a competent and competitive international shipping route, Russia 20  The Northern Sea Route Administration, Refusals to Give Permission for Navigation on the NSR. Available at http://www.nsra.ru/en/otkazu/ (accessed on July 25, 2015), in Russian. 21  Supra note 10. 22  Government of Canada, 2009, Canada’s Northern Strategy: Our North, Our Heritage, Our Future. Available at http://www.northernstrategy.gc.ca/cns/cns-eng.asp (accessed on July 25, 2015).

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has relaxed its previously stringent mandatory fee policy.23 In light of the Russian Federation Federal Law on Amendments to Specific Legislative Acts of the Russian Federation Related to Governmental Regulation of Merchant Ship­ ping in the Water Area of the Northern Sea Route24 instituted in 2013, the 2013 Rules25 was established to replace the 1991 Regulations26 which imposed a mandatory fee system on foreign vessels. The 2013 Rules clearly specify the required conditions for vessels’ independent navigation through the NSR. If the vessels meet the required ice strengthening category, given the favorable ice conditions and summer season, they can opt out of the previously mandatory icebreaking and escorting services. As such, the mandatory fees may now be renamed as “selective mandatory fees”, which the international community views as the tendency of Russia’s modification from an aggressive profitoriented attitude to a more cooperative one. As the prospects of Arctic navigation become brighter, Russia is also giving priority to improving Arctic navigation infrastructure for the NSR to be more capable of providing services such as ports, piloting and positioning, communications, search and rescue, and services for safer commercial shipping in the Arctic. Effectively equipping the NSR, Russia can assume the ­responsibilities of administering an international sea waterway. The 2020 Russian Arctic Principles also clearly demonstrates its determination to strengthen Arctic infrastructure.27 With power and authority concentrated into the central government, the Russian government’s determination is more easily translated into action. Moreover, appropriate supportive services for Arctic navigation are necessary for the implementation of the economy-oriented NSR policies. In addition, as a traditional maritime power, Russia possesses great marine fleets and manpower, which will give a backup for its development for Arctic marine transportation. Because the Russian Arctic waterways have always been closely associated with its domestic shipping network, their existing operational port 23  X. Zhang, J. Tu, Z. Qian, Z. Wang and H. Yang, 2014, From Mandatory Icebreaker Guiding to the Permit Regime: Changes to the Northern Sea Route in New Russian Law, POLAR RESEARCH, 26(2), 269–275, in Chinese. 24  Government of the Russian Federation, The Federal Law No. 132, on Amendments to Specific Legislative Acts of the Russian Federation Related to Governmental Regulation of Merchant Shipping in the Water Area of the Northern Sea Route, adopted on July 28, 2012, came into force on January 27, 2013. See Portnews, 2013, ‘RF Ministry of Justice Registers Regulations for Navigation in Northern Sea Route’s Water Area’. Available at http://en.portnews.ru/ news/158671/ (accessed on September 25, 2014). 25  Supra note 6. 26  Supra note 16. 27  Supra note 10.

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services are better than Canada’s. With further improvement and reconstruction, Russia will quickly pick up the service facilities required for a functional commercial shipping route in the Arctic. 2.3.2 Canada’s Lack of Measures to Promote the Opening of the NWP Due to Canada’s cautious and pessimistic attitude towards navigation in the NWP as expressed in the 2009 Canada’s Northern Strategy, and the fact that so far, there has not been commercial navigation of scale in the NWP, it is evident that Canada is not ready for full-scale commercial shipping in the NWP. The Canadian government has an ambitious Arctic infrastructure plan, which includes, among other things, the construction of a deep water port, icebreaking patrols, and patrol aircrafts. These investments were first mentioned in the 2008 Canada’s First Defense Strategy.28 The 2009 Canada’s Northern Strategy reiterated the importance of infrastructure construction.29 However, the dilemma with it is that the Canadian ambition is only on paper instead of being followed up with actions. The determination for “an Arctic presence” that the Canadian strategic documents have stressed has so far been limited to political words and no subsequent actions to demonstrate that words will be followed up by actions. In contrast to the concentration of power and authority shown by the central government of Russia, the government of Canada seemingly has decentralized the authority on Arctic affairs to local governments, who will be short of resources to follow up the ambition of enhancing Arctic waterways infrastructure. This will be a hindrance for future commercial navigation in the NWP. Russia and Canada’s Arctic Navigation Administration from a Military-strategic Perspective The economic role of the Arctic waterways is undisputed, but the Arctic waterways also concern political and military security for both Russia and Canada. During and after the Cold War, the Arctic region was an area of East-West military camp rivalry, with Russia and the United States as two giant opponents. To a certain extent, the century-long military importance of the Arctic exacerbates sovereignty disputes and stringent control over the Arctic waterways. The confrontation between Russia and the United States is a matter of international stability. Although it is a peaceful time, Russia has never taken matters of national security lightly. The United States has not yet ratified UNCLOS, 2.4

28  Government of Canada, 2008, Canada’s First Defense Strategy. Available at http://www .forces.gc.ca/en/about/canada-first-defence-strategy.page (accessed on July 25, 2015). 29  Supra note 21.

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one possible reason for which could be worries over the UN’s unprecedented authority in controlling oceans which may interfere with the United States’ policy in promoting itself as a great ocean power. The waters for the NSR are the most forward military confrontation ground between Russia and the United States. Russia’s tough stance towards NSR sovereignty and the mandatory reporting system are, to a certain extent, a means of preventing the United States, its Arctic neighbor as well as opponent, from doing as it pleases at Russia’s “front doorway”. There is a unity of voices among Russian academics, politicians, and legal professionals that the waters of the NSR, claimed to be categorized as internal waters, territorial seas, EEZ or whatever, fall under the control of Russia. Ensuring political and military security is one of the important root factors behind Russia’s strict implementation of NSR policies. As for Canada, it is a have-no-choice-but-move to resort to the United States to maintain political and military security in the Arctic although the United States claims the NWP as the international strait for transit passage. Only in a time of world peace will Canada have the resources to be concerned about the NWP’s sovereignty. However, it needs to tread carefully to exert a certain amount of force in its sovereignty claims, to maintain the sensitive balance between the interests of the United States and its own. This is also one of the reasons why Canada makes its roundabout sovereignty claims in the name of environmental protection. Thus, in settling the sovereignty challenge Canada is weak, leaving economic interests to take the back seat. However, different from Canada, apart from its strong-handed sovereignty claims, Russia is resourceful enough to be committed to exploiting its economic interests for the Arctic waterways. Canada and Russia’s Arctic Navigation Administration from an Environmental Protection Perspective With the original intention of protecting the fragile environments and ecosystems of the ice-covered areas in the EEZs, UNCLOS Article 234 was laid down as a political compromise in favor of the coastal States by developing domestic laws to prevent, reduce and control the marine pollution and contamination by vessels in their ice-covered EEZ areas.30 In general, the domestic laws of coastal States are more stringent than universal international laws, which is evident by contrasting the regulations stated in Canada’s Arctic Shipping Pollution Prevention Regulations released in 1996 (hereinafter referred to as the ASPPR) and those of the IMO’s International Convention for the Prevention of Pollution from Ships (hereinafter referred to as the MARPOL). The ASPPR s­ tipulates that 2.5

30  UNCLOS, Article 234.

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tankers that sail in the NWP must not discharge oil, oily waste or garbage.31 Annex 1 of the MARPOL permits oil and sewage discharge from ships within certain limits. Moreover, although Annex 5 of the MARPOL prohibits the dumping of plastic waste, it allows the dumping of packaging and wrappers 25 nautical miles away from land, as well as the dumping of waste paper, glass, rags, and metal waste 12 nautical miles away from land.32 Consider‑ ing Canada’s good practice in Arctic environmental protection, the IMO appointed Canada in 1991 as a coordinator for a technical working group drafting special rules for navigation in polar waters, whose ultimate goal was the development of the Guidelines for Ships Operating in Arctic Ice-covered Waters, a non-binding but enlightening navigation guideline released in 2002.33 Russia’s measures and laws for Arctic marine environmental protection are in stark contrast to Canada’s strict regime. Although controlling marine pollution is one of the main themes for Russia’s Arctic policies, its ubiquitous “polluter pays” principle in dealing with marine pollution seems to dwarf its efforts to prevent marine pollution. Although no specific data is given in Article 61 of the 2013 Rules of Navigation in the Northern Sea Route Water Area, it clearly states that ships sailing through the NSR must be equipped with oil tanks of sufficient capacity to collect residual oil generated during the voyage through the NSR, and the ships must also be equipped with storage tanks of sufficient capacity to collect waste, as well as to possess adequate supplies of fuel and fresh water to avoid the need for replenishment along the way; there are even specific requirements for ballast tanks in the 2013 Rules.34 However, the polluter pays system which is widespread in Russia’s Arctic environmental protection laws as well as its strict mandatory fee system delivers the message to the international community that environmental protection is not Russia’s primary concern. Instead, profits from the opening of the Arctic waterways are Russia’s top priority. Considering the vast Russian Arctic waters and struggling Russian economy, much more effort should go to the Arctic waters environmental protection.35 31  Government of Canada, Arctic Shipping Pollution Prevention Regulations, 1996, available at http://laws-lois.justice.gc.ca/PDF/C.R.C.,_c._353.pdf (accessed on July 29, 2015). 32  IMO, The International Convention for the Prevention of Pollution from Ships, MARPOL, 1973/78. 33  P. GUO, INTERNATIONAL STUDIES ON ARCTIC PASSAGE AFFAIRS, Beijing: Ocean Press, 2009, in Chinese. 34  Supra note 6. 35  Ragner, Claes Lykke, Den norra sjövägen. In Hallberg, Torsten (ed), BARENTS—ETT GRÄNSLAND I NORDEN. Stockholm, Arena Norden, 2008, pp. 114–127. (English translation version available at http://www.fni.no/doc&pdf/clr-norden-nsr-en.pdf).

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3 Conclusion Russia and Canada differentiate themselves in approaching sovereign claims for Arctic waterways, but they are alike confronted with international scrutiny by asserting NSR and NWP claims subject to an UNCLOS transit passage regime. Russia focuses on the economic potential of the NSR and is full of confidence in its future navigability. Its administrative measures actively promote the development of the NSR into an important international shipping route. Canada, on the other hand, pays closer attention to its sovereignty claims pertaining to the NWP. Because of its cautious attitude towards navigation of the NWP, there is an “on again, off again” element in the Canadian development of basic infrastructure and facilities for the Arctic navigation. In addition, the two countries also differ in their views concerning the political and military significance of Arctic waterways as well as the priority accorded to Arctic marine environmental protection. With globalization speeding up, the international community increasingly needs a standardized international law system for the administration of Arctic waterways that both countries can resort to while making their domestic legislation and policies.36 One of the ways to ensure uniform Arctic waterways administration is to strengthen communication and cooperation with international organizations, who have the advantage of acting as a coordinator in a diplomatic way and developing universally accepted standards. The establishment of the Polar Code developed by the IMO is a case in point for the involvement of competent and professional international organization in Arctic administration. The Polar Code provides comprehensive guidelines for navigation in the Polar Regions, and unlike the 2002 Guidelines for Ships Operating in Arctic Ice-covered Waters,37 this code will be enforced as the mandatory standard for navigation in the polar regions. With an increasingly bright future for the opening of Arctic waterways, more attention will shift to issues concerning technical requirements for safe Arctic navigation and the impact of navigation-related human activities on the Arctic marine environment. Therefore, as scientific and technological

36  H. Liu and F. Yang, 2009, Research on Arctic Environmental Law Issues from the Perspective of International Law, OCEAN UNIVERSITY OF CHINA NEWSLETTER (Social Sciences Edition), 3, 1–5, in Chinese. 37  IMO, 2002, Guidelines for Ships Operating in Arctic Ice-Covered Waters. Available at http:// www.gc.noaa.gov/documents/gcil_1056-MEPC-Circ399.pdf (accessed on September 25, 2014).

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research and innovation on marine environmental protection and maritime safety become top priorities, so will the enhancement of Arctic legal systems. Canada has established a strategic partnership with Russia because of their similarities in Arctic geopolitical and socioeconomic factors. But to date, the strategic partnership between the two countries is limited to regional cooperation under the Arctic Council’s framework and the IMO’s coordination for the establishment of the Polar Code. Given that the two biggest Arctic countries are comparable in many aspects, in the future they might further their cooperation and draw on each other’s Arctic experiences. With increased attention to navigability of Arctic waterways as well as enhanced respect for UNCLOS as a universal ocean constitution, the international community will be well-served if neither Canada nor Russia challenges the international law restrictions through the making of excessive Arctic claims. Shared concerns over protection of the Arctic marine environment, safety, and security call for regional cooperation between Canada and Russia, among Arctic States, and international cooperation as well. Prompt actions are expected to enhance uniform Arctic waterways administration and secure navigation safety in the environmentally sensitive Arctic before large numbers of vessels arrive. Being cooperative is the best means for international recognition of both Canada and Russia as the leaders for Arctic navigation administration. This is also the best means to “keep all of us safer”38 and make the Arctic waterways politically and physically navigable.

38  James Kraska, 2009. International Security and International Law in the Northwest Passage. VANDERBILT JOURNAL OF TRANSNATIONAL LAW, Vol. 42, 1109–1132.

part 4 Other Arctic Related Topics

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CHAPTER 14

Finding Refuge in the Exceptional: Using Public Morality as a Basis for Managing Natural Resources in the Arctic Elizabeth Whitsitt* Abstract Recent conversations about the WTO dispute between the Faroe Islands and the EU over shared stocks of mackerel and herring in the North Atlantic remind us that there is an undeniable relationship between international trade regulation and concerns about the environment, including the sustainable development of natural resources. This paper explores some of the ways in which the international trade regime attempts to balance both of these concerns. The most obvious example of such balancing is found in Article XX of the General Agreement on Tariffs and Trade (GATT). Historically environmental measures, including those put in place to ensure sustainable natural resource development, have been considered under either (or both) Articles XX(b) and XX(g). The WTO’s recent decision in the EC-Seal Products dispute on the legality of a regime that bans seal products from the European Union (EU) market, however, raises interesting questions about whether the public morals exception articulated in GATT Article XX(a) could be used to justify otherwise GATT-illegal measures on grounds that environmental protection (including the sustainable development of natural resources such as Arctic fisheries) is a public moral concern within a state. This paper seeks to explore those questions and specifically the considerations that legislators and policy makers should have in mind when developing environmental regulations that may impact international trade.

1 Introduction Questions about the nexus between trade liberalization and environmental protection have existed since the establishment of an international trade law * Assistant Professor, University of Calgary Faculty of Law, Canada. Email: liz.whitsitt@ ucalgary.ca. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/ bergen-whitsitt.pdf.

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regime post World War II.1 More recent conversations about a World Trade Organization (WTO) dispute between the Faroe Islands and the European Union (EU) over shared stocks of mackerel and herring in the North Atlantic2 remind us that the precise contours of this relationship continue to generate heated debate. Some see the unmitigated promotion of free trade objectives and sovereignty over natural resources as facilitating environmental degradation and the unsustainable consumption of natural resources, including Arctic fisheries. Others view the implementation of environmental regulations (at the state or inter-state level) as a way of disguising protectionism and circumventing the obligations outlined in international trade agreements. This paper discusses some of the ways in which the international trade law regime attempts to balance these potentially competing concerns. The most obvious example of such balancing is found in Article XX of the General Agreement on Tariffs and Trade 1994 (GATT).3 Article XX explicitly recognizes that trade concerns will not always take priority over other legitimate public policy objectives like protecting the environment.4 In so doing, Article XX gives practical meaning to the aspirations of the WTO, which make reference to the international trade law regime as a means by which countries may promote the sustainable development of world resources and protect the environment.5 Traditionally those measures that engage environmental con1  See Havana Charter for an International Trade Organization, 24 March 1948, UN Doc. E/Conf. 2/78 (not in force), Arts 45(1)(a)(x) and 70(1)(d) which exempted measures ‘taken in pursuance of any inter-governmental agreement which relates solely to the conservation of fisheries resources, migratory birds, or wild animals. . . .’ 2  See Request for Consultations by Denmark in Respect of the Faroe Islands, European Union—Measures on Atlanto Scandian Herring, WT/DS469/1 (4 November 2013) in which the Faroe Islands challenged EU sanctions imposed on the archipelago after the two states (along with Russia, Norway and Iceland) could not agree on 2013 total allowable catch allocations for their shared fishing stocks. Specifically, the Faroe Islands challenged EU measures banning the import of Atlanto-Scandian herring and mackerel caught under the control of the Faroe Islands and the use of EU ports by Faroe Island fishing vessels as violations of Articles I, V and XI of GATT. This dispute was eventually resolved by negotiated settlement. See ‘EU lifts fish sanctions on Faroe Islands, WTO dispute closed’, International Centre for Trade and Sustainable Development (27 August 2004), available online: (last accessed 3 January 2015). 3  General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, 33 ILM 1153, 1867 UNTS 187 [hereinafter GATT]. 4  Peter Van den Bossche, The Law and Policy of the World Trade Organization: Text, Cases and Materials (Cambridge: Cambridge University Press, 2008) at 616. 5  GATT, supra note 3.

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cerns have been considered under either (or both) Articles XX(b) and XX(g). Article XX(b) permits a WTO member to maintain otherwise GATT-illegal measures if doing so is “necessary to protect human, animal, or plant life or health.” Article XX(g) allows a WTO member to justify measures that “relat[e] to the conservation of exhaustible natural resources” as long as such measures “are made in conjunction with restrictions on domestic production or consumption.” But there are other provisions of Article XX that may also be applicable to environmental protection policy and its corresponding regulation. The recent WTO decisions on the legality of a regime that bans seal products from the EU market (EC-Seal Products6) raise some interesting questions about the public morals exception articulated in GATT. Article XX(a) of GATT permits a WTO member to maintain otherwise GATT-illegal measures if doing so is “necessary to protect public morals.” The EC-Seal Products decisions trigger questions about whether this provision could be used to justify otherwise GATT-illegal measures on grounds that environmental protection, including the sustainable development of natural resources such as Arctic fisheries, is a public moral concern within a state. This paper seeks to explore some of those questions and specifically considerations which legislators and policy makers should have in mind when developing environmental regulations that may impact international trade. This paper is organized as follows. This introduction (1) section is followed by an overview of the international trade law framework (2), and then brief discussions of the more common environmental exceptions under GATT Article XX (3) and the public morals exception as applied in the EC-Seal Products case (4). The final section provides concluding remarks (5). 2

The International Trade Law Framework

GATT is one of the WTO’s foundational agreements and sets out many of the “rules” negotiated by WTO members governing international trade. According to its preamble, the purpose of GATT is the “substantial reduction of tariffs and other trade barriers and the elimination of preferences, on a reciprocal

6  Panel, European Communities-Measures Prohibiting the Importation and Marketing of Seal Products, WTO Docs WT/DS400/R, WT/DS401R (25 November 2013) (Panel Report, EC-Seal Products); Appellate Body, European Communities-Measures Prohibiting the Importation and Marketing of Seal Products WT/DS400/AB/R, WT/DS401/AB/R (22 May 2014) (AB Report, EC-Seal Products).

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and mutually advantageous basis.”7 Also incorporated into GATT are two nondiscrimination obligations, which are fundamental to the international trade law regime and impact the ability a state has to implement measures relating to sustainable natural resource management. The first non-discrimination obligation is the so-called most-favourednation (MFN) provision, which prohibits a state from discriminating between goods from its trading partners.8 Thus a state cannot, by way of fiscal or regulatory measures, differentiate between “like” goods by giving more favourable treatment to some of its trading partners and not others.9 The MFN obligation is considered one of the core principles within international trade law and is found in numerous trade agreements.10 Even within GATT there are numerous provisions that prohibit WTO members from favouring goods of certain trading partners over like goods of other trading partners.11 The most prominent MFN provision in GATT is articulated in the agreement’s first substantive provision, Article I, which provides for nondiscriminatory treatment of products in respect of tariffs, internal taxes and internal regulations.12 Notwithstanding that there have been a number of interpretive issues arising out of the wording of Article I,13 international trade 7  GATT, supra note 3. 8  See, e.g., ibid. at Article I:1. 9  Ibid. 10  See e.g. the General Agreement on Trade and Services, Apr. 15, 1994, 1869 UNTS 183, 33 ILM 1167, Article II:1 [GATS], Agreement on Technical Barriers to Trade, Apr. 15, 1994, 1868 UNTS 120, Articles 2.1 & 5.1 [TBT Agreement], Agreement on the Application of Sanitary and Phytosanitary Measures, 1867 UNTS 493, Articles 2.3 & 5.5 [SPS Agreement]. 11  For example, MFN requirements can be found in GATT, supra note 3, Articles III:7 on international mixing requirements, IV(b) concerning film quotas, V on transit of goods, IX:1 on marks of origin, XIII imposing about administration of quotas, XVII:1 on state trading and XVIII:20 concerning measures to assist economic development. 12  See GATT, ibid. at Article I:1 which provides: With respect to customs duties and charges of any kind imposed on or in connection with the importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation and with respect to all matters referred to in paragraphs 2 and 4 of Article III, and advantage, favour, privilege or immunity granted by any Member to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other Members. 13   See William J. Davey, Non-Discrimination in the World Trade Organization: The Rules and Exceptions (Hague: Hague Academy of International Law, 2012) [Davey,

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law jurisprudence has interpreted the scope of this provision broadly to ensure that WTO members have unconditional14 access to a broad array of measures that advantage15 like products originating in or destined for any other country. The second non-discrimination obligation articulated in GATT is the national treatment (NT) provision. Under this obligation a WTO member commits to treat “like” imported goods that are within its territory no less favourably than domestically produced products.16 As with the MFN obligation, the NT obligation is another core principle within international trade law and is found in many trade agreements.17 Initially, the primary rationale behind the NT obligation was to prevent WTO Member States engaged in tariff negotiations from subverting those commitments

Non-Discrimination] at pp. 72–73 identifying four interpretive issues namely: (1) what measures are covered by Article I? (2) what are advantages, favours, privileges or immunities? (3) what are “like” products?, and (4) what is the nature of the conditionality requirement? See also William J. Davey & Joost Pauwelyn, “MFN Unconditionality: A Legal Analysis of the Concept in View of its Evolution in the GATT/WTO Jurisprudence with Particular Reference to the Issue of ‘Like Product’”, in Thomas Cottier and Petros C. Mavroidis (eds.) Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law (Ann Arbor: University of Michigan Press, 2000) at 17. 14  See, e.g., Panel Report, Indonesia—Certain Measures Affecting the Automobile Industry (Complaint by European Communities) (1998), WT/DS54/R, paras. 14.143–14.148 [Indonesia—Autos] (where a WTO panel determined that the grant of customs and tax advantages by Indonesia to cars produced by a Korean company violated GATT Article I:1 because those advantages were conditional on the existence of a contractual relationship between an Indonesian and Korean company). 15  There have been several WTO decisions dealing with what sort of advantages are covered by Article I:1. For example, the panel in Indonesia – Autos, ibid. at para. 14.139 determined that customs duty benefits and internal tax benefits were advantages covered by the MFN obligation articulated in GATT Article I:1. The panel in EC—Regime for the Importation, Sale and Distribution of Bananas (Complaint by Ecuador, Guatemala, Honduras, Mexico, US) (1997), WT/DS27/R at paras. 7.188–7.193 held that many aspects of the EC import regime for bananas, including those providing for less complex licensing procedures for imports of bananas from certain countries, constituted advantages within the scope of GATT Article I:1. 16  See, e.g., GATT, supra note 3 at Article III:4 which states: The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, purchase, transportation, distribution or use. 17  See, e.g., GATS, supra note 10, Art XVII, TBT Agreement, supra note 10, Article 2.1.

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by discriminating against foreign goods once they passed customs.18 Since its inclusion in GATT, however, WTO dispute resolution panels and the Appellate Body that reviews panel decisions have acknowledged that the NT obligation is about ensuring fair competition between foreign and domestic like products.19 While the NT obligation is embedded in many provisions of GATT, Article III contains the primary clauses in relation to internal taxation, fiscal measures and regulation.20 Also, not unlike the MFN obligation, while the NT obligation has been subject to varied interpretations and applications by trade dispute resolution bodies over time,21 it still remains central to GATT and thus international trade law. Therefore, as a matter of first principles, a WTO member wishing to implement environmental measures must do so in a non-discriminatory manner and with a view to facilitating the movement of goods between WTO trading partners. WTO Member States are, however, permitted to violate their international trade obligations under GATT in certain circumstances. Exceptions to both the MFN and NT obligations can be found in numerous trade agreement provisions.22 Of particular interest to this paper is how and when the 18  Davey, Non-Discrimination, supra note 13, p. 154. 19  See, e.g., Appellate Body Report, Japan – Taxes on Alcoholic Beverages (Complaint by European Communities) (1996), WT/DS58/AB/R, WT/DS10/AB/R & WT/DS11/AB/R at pp. 16–17. 20  See for example, GATT Article III:1, which provides: The contracting parties recognize that internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions, should not be applied to imported or domestic products so as to afford protection to domestic production. 21  See Nicolas DiMascio and Joost Pauwelyn, “Nondiscrimination in Trade and Investment Treaties: Worlds Apart or Two Sides of the Same Coin?” 102 AJIL 48 (2008) at 62–66 discussing five periods of GATT/WTO jurisprudence interpreting and applying the NT obligation with varying degrees of stricture. 22  Apart from GATT Article XX, the two primary exceptions to the MFN obligation found in WTO agreements are found in those provisions providing for the creation of regional trade agreements such as customs unions and free trade areas (GATT Article XXIV) and differential treatment of developing countries (Decision of 28 November 1979 of the Contracting Parties on Differential and More Favourable Treatment, Reciprocity, and Fuller Participation of Developing Countries, BISD 23S/203). Exceptions outside of those articulated in GATT Article XX also exist for the NT obligation. Notably GATT Article III contains two such exceptions for government procurement (Article III:8(a)) and domestic producer subsidies (Article III:8(b)).

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exceptions provided for under GATT Article XX may apply in the context of the regulation of sustainable natural resources, such as Arctic fisheries. 3

Environmental Exceptions under GATT Article XX23

A WTO panel and the Appellate Body will analyze a government measure intended to promote sustainable natural resources development under Article XX in two steps. It will first determine if the measure falls within one of the specified exceptions under Article XX. If the measure can tentatively be justified on the basis of one of those exceptions, it is then examined under the chapeau of Article XX.24 Early jurisprudence considering environmental measures interpreted Article XX narrowly, making it difficult for governments to justify their environmental measures within the trade law regime.25 More recent jurisprudence suggests that the international trade law regime is increasingly recognizing the need for governments to have some policy space to implement environmental measures and be able to justify those measures under Article XX. As discussed below, WTO dispute settlement bodies have been more willing to apply Article XX to measures that have environmental policy objectives and have relaxed their interpretation of the “necessity” requirement under Article XX(b). Nevertheless, aspects of the Article XX analysis remain

23  This discussion of GATT Article XX is based on an article I co-authored with a number of colleagues on the impact the international trade and international investment law regimes may have on government choices about the implementation of various carbon management strategies: see Bankes et al., “International Trade and Investment Law and Carbon Management Technologies” 53 Natural Resources Journal 285 (2013). 24  Appellate Body Report, United States–Standards for Reformulated and Conventional Gasoline (Complaint by Venezuela & Brazil) (1996) WTO Doc WT/DS2/AB/R at 20 [US-Gasoline]. 25  See, e.g., GATT Panel Report, United States—Restrictions on Imports of Tuna (Complaint by Mexico) (1991) Doc DS21/R–39S/155 (Panel Report, not adopted) [US-Tuna I] (where the panel determined that an import ban of certain tuna from countries whose tuna fishing vessels used nets that endangered dolphins could not be justified under Article XX because the measure was an impermissible quantitative restriction that operated outside of US territory); United States—Restrictions on Imports of Tuna (Complaint by European Communities) (1994) Doc DS29/R (Panel Report, not adopted) [US-Tuna (EEC)] (where the Panel determined that same measure challenged in US-Tuna I could not be justified under Articles XX(b) or XX(g) because essential conditions of these provisions were not met).

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difficult to overcome and are therefore likely to have a constraining effect on a government’s environmental policy space. Article XX contains two justifications relevant to environmental protection policy objectives. Article XX(b) permits a WTO member to maintain otherwise GATT-illegal measures if doing so is “necessary to protect human, animal, or plant life or health.” Further, Article XX(g) allows a WTO member state to justify measures that “relat[e] to the conservation of exhaustible natural resources” if such measures are “made effective in conjunction with restrictions on domestic production or consumption.” Measures addressing environmental policy concerns including climate change26 and the protection of clean air as an exhaustible natural resource27 have been recognized as measures that may be covered by GATT Articles XX(b) and XX(g), respectively. Thus, in contrast to earlier jurisprudence which tended to focus on the trade implications of a measure without regard to its environmental protection objectives, the current case law examining Articles XX(b) and XX(g) strikes more of a balance between the goals of trade liberalization and environmental protection.28 As a result, a measure focused on the promotion of sustainable natural resource development, including Arctic fisheries, could be provisionally justified under either (or both) Articles XX(b) and XX(g).29 The crucial language in Articles XX(b) and XX(g) are “necessary to” and “relating to”. The analysis under XX(b) is stricter than the analysis under XX(g). 26   See Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded Tyres (Complaint by European Communities) (2007) WTO Doc WT/DS332/AB/R at para. 151 [AB Report, Brazil-Tyres]. 27  See US-Gasoline, supra note 24 at 18. 28  This is not to say that all measures imposed by a WTO member because of alleged environmental concerns will fall under the rubric of Article XX(b). A WTO member wishing to invoke this exception must demonstrate that there is an intended link between its impugned measure and policy objectives associated with protecting human, plant and/ or animal health: see, e.g., Panel Reports, China–Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum (Complaints by US, EU & Japan), WT/DS431/R WT/DS432/R, WT/DS433/R (2014) at paras. 7.157–7.171; Panel Reports, China—Measures Related to the Exportation of Various Raw Materials (Complaints by US, Mexico & EU), WT/ DS394/R, WT/DS395/R, WT/DS398/R (2011) at paras. 7.508–7.511. 29  WTO jurisprudence indicates these two provisions are distinct. For a WTO member to justify policies which promote the sustainable development of natural resources under Article XX(b) it will need to provide evidence that the measure contributes to the protection of human, animal or plant life or health specifically; arguments that a measure contributes to broad environmental protection objectives will not be considered compelling under XX(b): see Panel Report, Brazil—Measures Affecting Imports of Retreaded Tyres (Complaint by European Communities) (2007) WTO Doc WT/DS332/R at para. 7.46.

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For a time, “necessity” under Article XX(b) was stringently interpreted. WTO panels found that measures could only be justified under this provision if they were the least trade restrictive measures reasonably available to a state.30 More recently, the Appellate Body has expanded upon this analysis and determined that the current test for “necessity” promotes the weighing and balancing of a number of factors, including: (i) the contribution made by the (nonindispensable) measure to a government’s legitimate objective; (ii) the importance of the common interests or values protected; and (iii) the impact of the measure on trade.31 While the analysis under Article XX(g) and its “relatedness” requirement is less stringent than “necessity” under Article XX(b), a government justifying its measures under Article XX(g) will still need to demonstrate a “close and genuine relationship of ends and means” which is not “disproportionately wide in its scope and reach.”32 A GATT-inconsistent measure that is merely incidentally or inadvertently aimed at a conservation objective will not satisfy this requirement of Article XX(g).33 Additionally, so long as the measure is even-handed in relation to domestic measures, the “effective in conjunction” requirement should be met.34 A third potential exception that may be engaged in the context of sustainable natural resource management, and the focus of this paper, is GATT 30  See, e.g., Panel Report, United States—Sect. 337 of the Tariff Act of 1930 (Complaint by the European Community) (adopted 7 November 1989) L/6439-36S/345. 31  See AB Report, Brazil-Tyres, supra note 26 at para. 178. 32  Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products (Complaint by India et al.) (1998), WTO Doc WT/DS58/AB/R at para. 171 [US-Shrimp]. 33  US-Gasoline, supra note 24, p. 19. 34  US-Gasoline, ibid. at p. 21. See Appellate Body Reports, China—Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum (Complaints by US, EU & Japan), WT/DS431/AB/R, WT/DS432/AB/R, WT/DS433/AB/R (2014) at paras. 5.119–5.141 where the even-handedness requirement was recently called into question after China challenged a WTO panel’s finding that its rare earth export quotas could not be justified under Article XX(g). Specifically, China argued that the Panel erred by imposing an additional requirement on WTO members trying to justify measures under GATT Article XX(g) (i.e. splitting the burden of resource conservation evenly between foreign and domestic consumers and producers). The Appellate Body clarified that the requirement for evenhandedness is not an additional requirement to be imposed on WTO members but is rather used as a synonym for explicit phrasing in Article XX(g) requiring measures to be “. . . made effective in conjunction with restrictions on domestic production or consumption.” Moreover, the Appellate Body confirmed that the even-handedness requirement does not require a WTO member to show that the burden of resource conservation is shared evenly between foreign and domestic consumers and producers.

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Article XX(a). Article XX(a) states, in part, that “. . . nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures . . . necessary to protect public morals.” Commonly referred to as the “public morals exception”, there are a number of questions about the scope and applicability of GATT Article XX(a), both generally and specifically in relation to natural resources. As noted above, this paper considers whether the public morals exception could be used to justify otherwise GATT-illegal measures relating to environmental protection, including the sustainable development of natural resources such as Arctic fisheries. Sections IV and V below provide a more detailed discussion of Article XX(a). However, before addressing Article XX(a) it is important to complete the Article XX analysis by addressing the “chapeau.” Once a government has established that its measure can provisionally be justified under one of Article XX’s subparagraphs, the application of the measure is considered under the Article XX chapeau. Established to prevent states from abusing the Article XX exceptions, the chapeau is considered by some as “the most important provision in [GATT].”35 Thus, under the chapeau a measure must not be applied “in a manner that constitutes a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail” and must not be “a disguised restriction on trade.” In contrast to the analysis that takes place under Article XX’s subparagraphs, an examination of measures aimed at the promotion of sustainable natural resource development under the chapeau will not focus on the measures as such but on the measures’ “detailed operating provisions” and “how [they are] actually applied.”36 As a result, the chapeau requires a WTO member to provide evidence justifying any differential treatment of, and/or among, its trading partners.37 Here it is important to note that “arbitrary and unjustifiable discrimination” as contemplated by the chapeau is analytically distinct from discrimination under the MFN and NT provisions of GATT.38 In contrast to GATT Articles I 35  Joost Pauwelyn, “US Federal Climate Policy and Competitiveness Concerns: The Limits and Options of International Trade” (2007) Nicholas Institute Working Paper NI-WP 07/02, Duke University at 37, online: Nicolas Institute for Environmental Policy Solutions

[Pauwelyn, “US Climate Policy”]. 36  US-Shrimp, supra note 32, para. 160. 37  AB Report, Brazil-Tyres, supra note 26, para. 225. 38  See Pauwelyn, “US Climate Policy”, supra note 35 at 37–38 (for an incisive explanation of the differences between discrimination in the chapeau and GATT Articles I (MostFavoured-Nation) and III (National Treatment)).

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and III, which require that a WTO member’s measure have a uniform effect on all trading partners, an analysis of unjustifiable or arbitrary discrimination under the chapeau necessarily requires consideration of a measure’s diverse effects on “countries where the same conditions prevail.” As a result, measures promoting sustainable natural resource development will have a greater chance of surviving justification under the chapeau if they fairly and predictably make adjustments for countries with comparable natural resources policies and for countries at different stages of economic development.39 Whether a WTO member has taken into account the special needs of its trading partners and can thereby justify such a measure under the chapeau will depend on whether: (1) its measure requires a foreign country to adopt its own policies; (2) it has attempted to engage in negotiations with its trading partners with a view to concluding bilateral or multilateral agreements; and (3) the implementation and administration of its measure respects basic fairness and due process.40 To date, chapeau justifications have not been very successful in the context of environmental protection regulation.41 For example, in US-Gasoline, the Appellate Body did not accept that a uniform pollutant baseline for importers and an individualized pollutant baseline for domestic refiners was justifiable on the grounds that administrative difficulty and domestic hardship required the differing treatment of domestic and foreign industry. Similarly, in US-Shrimp, the Appellate Body held that a requirement permitting the marketing of shrimp only if caught by a vessel equipped with a Turtle Excluder Device could not overcome the Article XX Chapeau for a number of reasons including: (i) differing technology phase-in periods, (ii) the rigidity and inflexibility of the measure which recognized only one way of avoiding turtle harm, (iii) and the lack of a transparent and predictable certification process under the measure).42 In Brazil-Retreaded Tyres, the Appellate Body determined that while a Brazilian regulation banning the import of retreaded tyres was 39  Joost Pauwelyn, “Carbon Leakage Measures and Border Tax Adjustments under WTO Law” (21 March 2012) at 48–49, forthcoming in C. Provost and G. Van Calster, eds., Research Handbook on Environment, Health and the WTO (Edward Elgar, 2012), online: Social Science Research Network ; Tracey Epps & Andrew Green, Reconciling Trade and Climate: How the WTO Can Help Address Climate Change (Cheltenham, UK: Edward Elgar, 2010) at 77–78; Gary Clyde Hufbauer, Steve Charnovitz & Jisun Kim, Global Warming and the World Trading System (Washington, DC: Peterson Institute for International Economics, 2009) at 48. 40  See Pauwelyn, “US Climate Policy”, supra note 35 at 38–41 and the references cited therein. 41  See, e.g., US-Gasoline, supra note 24 at 21–22, 26–29. 42  US-Shrimp, supra note 32 at paras. 142, 174, 161–164, 178.

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necessary for the “reduction of the risks of waste tyre accumulation”43 it was arbitrary and unjustified because the measure contained an exception for imports from other MERCOSUR Member States.44 The chapeau has also been problematic for states trying to justify measures on the basis of public morals in two of the three disputes, which have thus far been decided. For example, in US-Gambling the Appellate Body found that while a US ban on internet gambling was provisionally justified as necessary to protect public morals it was arbitrary and unjustifiable because the United States permitted remote betting services in the horseracing context.45 Most recently, the Appellate Body confirmed that the EU’s ban on seal products was not chapeau compliant because of its failure to address concerns about indigenous communities in a non-discriminatory manner.46 4

The Public Morals Exception & the EC-Seal Products Case47

As discussed above, a potential exception to GATT obligations that a state may attempt to engage in the context of sustainable natural resource management is the public morals exception. GATT Article XX(a) permits a WTO member to implement measures that violate GATT if they are “necessary to protect public morals.” There is no question that the provision permits customs restrictions on pornographic material.48 The precise scope and breadth of this provision has, however, only recently been considered by WTO panels and the Appellate Body. To date, only three disputes have considered public morals exceptions in trade law treaties.49 In the first such dispute the US provisionally justified 43  AB Report, Brazil-Tyres, supra note 26 at para. 134. 44  Ibid. at para. 233. 45  AB Report, US-Gambling, infra note 49, paras. 361–364. 46  AB Report, EC-Seal Products, supra note 6. 47  Large portions of this section describing the overview of the EC-Seal Products dispute are taken from a case note written by the author: see Whitsitt, “Moral Imperialism and Other Concerns”, infra note 71. 48  See Davey, Non-Discrimination, supra note 13 at p. 253. See also Francesco Francioni, Environment, Human Rights and International Trade (Oxford: Hart Publishing, 2001) at p. 11. 49  Panel Report, EC-Seal Products as modified by AB Report, EC-Seal Products, supra note 6; Panel Report, China—Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (Complaint by United States) (2009), WT/DS363/R [Panel Report, China—Publications and Audiovisual] as modified by Appellate Body Report, China—Measures Affecting Trading Rights and Distribution

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its ban on internet gambling under Article XIV of the General Agreement on Trade in Services50 (GATS), an exception equivalent to the public morals exception in GATT Article XX(a).51 The second dispute, although the first to consider the public morals exception under GATT, involved China’s unsuccessful attempt to justify restrictions on the protocols by which publications and audiovisual materials could be imported and distributed in China.52 The most recent dispute, and the focus of this discussion, involved the EU’s ban on seal products to appease alleged community concerns for animal welfare in seal harvesting practices.53 In the recent EC-Seal Products decisions from the WTO Panel and Appellate Body (AB), the world’s leading international trade arbiter was asked to sanction the EU’s 2009 ban on the importation and marketing of seal products (in this paper called the EU Seal Regime). The ban was ostensibly implemented to address the EU’s moral concerns about the welfare of seals.54 The ban was harshly criticized by Canada, where sealing is a vital cultural practice for its indigenous Inuit communities, as well as by Norway. Thus the stage was set for a significant debate, pitting animal rights activists seeking to stop certain seal hunting practices against indigenous communities (actually their state government) seeking to protect their long held traditional and cultural seal hunting practices. The EU Seal Regime is delineated in two pieces of legislation—the Frame­ work Regulation and the Implementation Regulation.55 Briefly summarized, Services for Certain Publications and Audiovisual Entertainment Products (Complaint by United States) (2009), WT/DS363/AB/R [AB Report, China—Publications and Audiovisual]; Panel Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services (Complaint by Antigua and Barbuda) (2004), WT/DS285/R [Panel Report, US–Gambling] as modified by Appellate Body Report, United States— Measures Affecting the Cross-Border Supply of Gambling and Betting Services (Complaint by Antigua and Barbuda) (2005), WT/DS285/AB/R [AB Report, US—Gambling]. 50  GATS, supra note 10. 51  AB Report, US-Gambling, supra note 49, paras. 324–326. 52  AB Report, China-Publications and Audiovisuals, supra note 49, paras. 55–269, 270–297, 328–329. 53  See Panel & AB Reports, EC-Seal Products, supra note 6. 54  For background on the legislative process and argumentative logics that led to the EU Seal Regime see Njord Wegge, “Politics between science, law and sentiments: explaining the European Union’s ban on trade in seal products” (2013) 22(2) Environmental Politics 255. 55  Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on Trade in Seal Products, 2009 O.J. (L 286) 36 (hereinafter the Framework Regulation); Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009

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the measure bans the sale of seal products in all EU Member States, subject to certain explicit and implicit exceptions. Explicitly, the measure permits the sale of seal products in the EU market if those products are: (i) derived from hunts carried out by indigenous peoples (IC Exception),56 (ii) derived from hunts that were conducted for the sustainable management of marine resources, (iii) or personally imported into the EU by travellers.57 Implicitly, the measure also permits the import of seal products into the EU for process and re-export, a convenient loophole that protects commercial interests within the EU. In 2011, Canada and Norway commenced WTO dispute settlement proceedings against the EU over the EU Seal Regime. The primary claims were that the EU Seal Regime was discriminatory and posed an unnecessary obstacle to trade contrary to GATT58 and the Agreement on Technical Barriers to Trade (TBT Agreement).59 After hearing the case and subsequent appeal, respectively, both the WTO Panel and the AB determined (albeit for different reasons) that the EU Seal Regime was justified under the right to protect public morals, specifically on the grounds of protecting animal welfare. Both bodies also found, however, that the purported Inuit60 and other indigenous of the European Parliament and of the Council on trade in seal products (hereinafter the Implementing Regulation) (collectively the EU Seal Regime), both available online:

(collectively referred to as the “EU Seal Regime”). 56  See Framework Regulation, ibid. at Art 3(1), which states: The placing on the market of seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence. These conditions shall apply at the time or point of import for imported products. 57  See ibid. at Art 3(2) which reads: (a) the import of seal products shall also be allowed where it is of an occasional nature and consists exclusively of goods for the personal use of travellers or their families. The nature and quantity of such goods shall not be such as to indicate that they are being imported for commercial reasons; (b) the placing on the market of seal products shall also be allowed where the seal products result from by-products of hunting that is regulated by national law and conducted for the sole purpose of the sustainable management of marine resources. Such placing on the market shall be allowed only on a non-profit basis. The nature and quantity of the seal products shall not be such as to indicate that they are being placed on the market for commercial reasons. 58  GATT, supra note 3. 59  See TBT Agreement, supra note 10. 60  See Framework Regulation, supra note 55, article 2(4) where “Inuit” is defined as “indigenous members of the Inuit homeland, namely those arctic and subarctic areas where,

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communities61 exception to the ban was discriminatory in the way it was applied, and should be modified in order to fully comply with the EU’s international trade obligations. The WTO Panel focused its analysis on the TBT Agreement.62 Specifically, it found that the IC Exception was discriminatory as it was designed to benefit seal products harvested by Greenland’s Inuit communities over Canadian Inuit communities.63 At the same time, the WTO Panel determined that the EU was entitled under Article 2.2 of the TBT Agreement to ban the importation and marketing of seal products because it was aimed at, and made some contribution toward, addressing EU public moral concerns over animal welfare.64 Moreover, it determined that alternative and less restrictive measures (i.e. labeling seal products harvested through a humane hunt) were not reasonably available given the challenges associated with the establishment of appropriate standards and any subsequent implementation and monitoring of such a program.65 All of these findings heavily influenced the WTO Panel’s brief analysis of the EU Seal Regime under GATT. While the WTO Panel determined that the EU’s ban on the importation and marketing of seal products could be justified as ‘necessary to protect public morals’, it also found that the EU Seal Regime did not meet the requirements of GATT Article XX’s chapeau due to the discriminatory design and application of the IC Exception.66 presently or traditionally, Inuit have aboriginal rights and interests, recognised by Inuit as being members of their people and includes Inupiat, Yupik (Alaska), Inuit, Inuvialuit (Canada), Kalaallit (Greenland) and Yupik (Russia).” 61  See Implementing Regulation, supra note 55, article 2(1) where “Other indigenous communities” is defined as “communities in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions”. 62  For a brief synopsis and comment on these developments see Elizabeth Whitsitt & Nigel Bankes, ‘The WTO Panel Decision on the EU’s Rules on the Marketing of Seal Products: Who Won and Who Lost?,’ ABlawg, 10 January 2014, [accessed 16 October 2014]. 63  Panel, EC-Seal Products, above note 6, paras. 7.303–315 & 7.460. 64  Ibid. at paras. 7.415 et seq. Note the Panel concedes that public morals are a legitimate objective notwithstanding that Article 2.2 of the TBT Agreement does not expressly refer to public morals. 65  Ibid. at paras. 7.493 et seq. 66  Ibid. at paras. 7.630–7.639 & 7.644–7.651.

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While the AB subsequently upholds some of the WTO Panel’s findings on appeal, the AB departs from the WTO Panel’s reasoning in significant ways. Most importantly, the AB takes steps to clarify and distinguish between the analyses of measures challenged under GATT versus the TBT Agreement.67 Overturning one of the fundamental findings of the WTO Panel, the AB held that the EU Seal Regime was not a technical regulation as defined in Annex 1.1 of the TBT Agreement.68 As a result, the TBT Agreement does not apply and the AB’s decision on the validity of the EU’s Sealing Regime turns entirely upon GATT. In its final report, the AB confirmed that the IC Exception violated GATT Article I:1 on grounds that the EU Seal Regime detrimentally affected the conditions of competition for Canadian and Norwegian seal products when compared to Greenlandic seal products.69 The AB further upheld the WTO Panel’s conclusion that the EU could provisionally justify its Seal Regime on public moral grounds. However, it went on to find that the EU Seal Regime, in particular the IC Exception, did not meet the strictures of the chapeau in GATT Article XX.70 The author has previously criticized the analysis of the public morals exception in the EC-Seal Products case for its narrow view that the main or principal objective of the EU Seal Regime is animal welfare, contrary to the express text of that legislation and conflicting jurisprudence. By confining the rationale of the EU Seal Regime to animal welfare, the WTO Panel and Appellate Body avoid complicated questions about balancing moral concerns for seal welfare against moral concerns about the protection of indigenous communities. This results in analytical shortcomings that are critical to the analysis of the EU Seal Regime under the public morals exception. Moreover, and perhaps most importantly, narrowly construing the objectives of the EU Seal Regime legitimizes a measure that operates in a morally imperialistic manner. Under the EU Seal Regime a dominant culture defines and imposes its morality onto a foreign indigenous culture without any meaningful consideration of their interests and even if it means destroying their ability to benefit from their traditional

67  For a brief synopsis and comment on these developments see Elizabeth Whitsitt & Nigel Bankes, ‘Sealing: It’s a moral not a technical issue and animals outweigh indigenous communities,’ ABlawg, 12 June 2014, [accessed 16 October 2014]. 68  AB Report, EC-Seal Products, supra note 6, paras. 5.58–5.59. 69  Ibid., paras. 5.90, 5.95. 70  Ibid., paras. 5.320, 5.337–5.338.

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practices (e.g. seal hunting).71 Despite such criticisms, however, there are three other observations about the EC-Seal Products decisions pertaining to the public morals exception that are useful to consider in the context of sustainable natural resource development, including Arctic fisheries. First, when considering the public morals exception it seems clear that WTO panels and the Appellate Body have given, and will continue to give, WTO members considerable discretion to determine what practices will violate the moral code of their communities.72 In the EC-Seals Products dispute the WTO Panel reviewed a number of pieces of evidence including public opinion surveys, the legislative history of the EU Seal Regime, measures taken by the EU and its Member States concerning animal protection, conventions on animal welfare within the EU and various international instruments to determine whether the EU Seal Regime was aimed at addressing a public moral concern within the EU.73 While finding that EU public opinion surveys were insufficient to establish the existence of EU public moral concerns over seal welfare,74 the WTO Panel found that the other pieces of evidence, taken as a whole, demonstrated that “animal welfare [was] an issue of ethical or moral nature in the [EU].”75 On appeal, Canada tried to argue that falling within the scope of the public morals exception should engage a more exacting inquiry, namely whether commercial seal hunts targeted by the EU Seal Regime exhibited a degree of animal suffering that fell below the standard or norm of right and wrong conduct in the context of animal welfare shown to prevail within the EU.76 In this regard, Canada contended that animal welfare risks in commercial seal harvesting were not unique to those hunts and in fact existed in all forms of wildlife hunts including those conducted within the EU.77 The Appellate Body rejected Canada’s argument, reiterating the right of WTO

71  Elizabeth Whitsitt, “A Comment on the Public Morals Exception in International Trade Law and the EC-Seal Products Case: Moral Imperialism and Other Concerns” (2015) 3(4) Cambridge Journal of International and Comparative Law 1376 [Whitsitt, “Moral Imperialism & Other Concerns”]. See also blog posts written by the author and Professor Nigel Bankes referenced at supra notes 62 and 67. 72  See Panel Report, EC-Seal Products, supra note 6 at paras. 7.379–7.382 & 7.631 citing Panel Reports in US-Gambling, supra note 49, paras. 6.461 & 6.465 and Panel Report, ChinaPublications & Audiovisuals, supra note 49, para. 7.759. 73  Panel, EC-Seal Products, supra note 6, paras. 7.405–408. 74  Ibid. at para. 7.409–7.410. 75  Ibid. 76  AB Report, EC-Seal Products, supra note 6, para. 5.194. 77  Ibid.

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members to “set different levels of protection even when responding to similar interests of moral concern.”78 The second observation has to do with the “necessity” analysis that WTO panels and the Appellate Body engage in under GATT Article XX(a). As with determinations under GATT Article XX(b), “necessity” under the public morals exception is determined by weighing and balancing a number of factors including a measure’s contribution to its objectives and its trade restrictiveness in light of the importance of the values at stake in any given circumstance.79 As discussed below, however, the EC-Seal Products cases depart from GATT Article XX(b) jurisprudence in the necessity analysis, leaving open the possibility that environmental regulation tied to a state’s moral concerns may be easier to justify under GATT Article XX(a) than GATT Article XX(b). In assessing whether the EU Seal Regime was necessary to protect the public moral concern for animal welfare, the WTO Panel in EC-Seal Products examined the importance of the interests and values at stake, as well as the contribution that the measure made to the achievement of the objective.80 The WTO Panel concluded that addressing EU public moral concerns about seal welfare was “an important value or interest” and that the ban made a material contribution to reaching the EU’s objective. The ban does contribute to the European Union’s objective by reducing, to a certain extent, the global demand for seal products and by helping the EU public avoid being exposed to seal products on the EU market that may have been derived from seals killed inhumanely. To the extent that such seal products are prohibited from the EU, we find that the ban makes a material contribution to the objective of the measure.81 [emphasis added] This finding was made despite acknowledgments that the effectiveness of the EU Seal Regime was reduced by the implicit and explicit exceptions existing in the measure.82 Canada and Norway subsequently appealed the WTO Panel’s necessity analysis. On the issue of contribution, Canada and Norway contended that a trade restrictive measure, such as the EU ban on seal products, should 78  Ibid. at para. 5.200. 79  Panel Report, EC-Seal Products, supra note 6, para. 7.630. 80  Ibid. at paras. 7.630 & 7.635. 81  Ibid. at para. 7.637. 82  Ibid. at 7.638.

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materially contribute to its objective, not just result in “some contribution” to seal welfare.83 As a result, both countries launched a wholesale attack on the WTO Panel’s contribution analysis, arguing (for example) that the WTO Panel erred by unduly focusing on the prohibitive aspect (i.e. ban) of the EU Seal Regime, reaching indeterminate conclusions about the extent of the contribution made by the regime to seal welfare, and failing to substantiate its findings on contribution with the proper evidence.84 The Appellate Body rejected all of these arguments.85 Most notably, the Appellate Body rejected the notion that a measure producing restrictive effects on international trade as severe as those resulting from an import ban should make a material contribution to the achievement of its objective under the necessity analysis.86 In coming to this conclusion, the AB departs from jurisprudence under GATT Article XX(b), which previously specified that it would be difficult for a trade restrictive measure (such as an import ban) to be justified as necessary unless such a measure made a material contribution to the achievement of its objective.87 In so doing, it appears as though environmental regulation tied to a state’s moral concerns may be easier to justify under GATT Article XX(a) than GATT Article XX(b). A third albeit similar observation can also be made when juxtaposing the contribution analysis under Article XX(a) with the requirement under Article XX(g) that GATT-inconsistent measures must “relat[e] to the conservation of exhaustible natural resources.” While the “relatedness” requirement under Article XX(g) has traditionally been considered less stringent than the requisite consideration of “necessity” under provisions such as Articles XX(a) and XX(b), the decisions in EC-Seal Products introduce interpretive uncertainty regarding the relationship between these provisions. Recall that fulfilling the “relatedness” requirement under Article XX(g) requires a “close and genuine relationship” between the design and structure of a state’s measure and the conservation objectives of that measure.88 Insignificant connections between a measure’s means and ends will not suffice.89 Based on the decisions in EC-Seal Products, however, it appears that a measure which fails the “relatedness” analysis under Article XX(g) because it lacks a close and “genuine relationship” between the design and structure of the measure and the conservation 83  AB Report, EC-Seal Products, supra note 6, para. 5.207 et seq. 84  Ibid. at paras. 5.204–5.259. 85  Ibid. 86  Ibid. at para. 5.213. 87  See AB Report, Brazil–Tyres, supra note 26, para. 150. 88  Supra note 32. 89  Supra note 33.

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objectives may still be justifiable as “necessary” to protect public morals under Article XX(a) so long as the measure contributes to a certain extent to addressing the moral concerns associated with the conservation of natural resources. This apparent analytical relaxing of “necessity” under the public morals exception when compared to jurisprudence considering similar requirements under GATT XX(b) and the “relatedness” requirement under Article XX(g) coupled with the considerable discretion a WTO member has to define and address the moral concerns within its society make GATT Article XX(a) an attractive (and as yet untapped) exception for states attempting to implement trade restrictive measures to manage natural resources. That is not to say that a WTO member should forego defending its environmental measures under the traditionally used GATT Articles XX(b) and (g) provisions. Rather, it is to suggest that in the appropriate circumstances the public morals exception may prove helpful to an Arctic State regulating its fisheries. With that in mind, the last section of this paper provides some concluding remarks on the public morals exception in the context of Arctic fisheries. 5

Concluding Remarks

One intent of this paper is to explore whether GATT Article XX(a) could be used to justify otherwise GATT-illegal measures on grounds that environmental protection is a public moral concern within a state. As discussed above, this paper posits that in addition to GATT Articles XX(b) and (g), the public morals exception is a potential safe harbor for such environmental protection regulations. Indeed, environmental regulation tied to a state’s moral concerns may be easier to justify under GATT Article XX(a) than GATT Articles XX(b) or (g). According to the EC-Seal Products decisions a state can provisionally justify a trade restrictive measure (i.e. ban on goods) under the public morals exception with limited evidence of the measure’s contribution to its public moral objective. That finding also means that a state may have an easier time provisionally justifying an environmental measure as “necessary to protect public morals” than demonstrating that its measure is “related to the conservation of an exhaustible natural resource.” A further intent is to identify the considerations that legislators and policy makers should have in mind when developing environmental regulations that may impact international trade. While the public morals exception has yet to be tested in the context of Arctic fisheries, the following guidance can be gleaned from the nascent GATT Article XX(a) jurisprudence.

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A state will have considerable discretion to determine what practices will violate the moral code of their communities. Thus it is possible that a WTO member Arctic State could well establish the sustainable management of its fisheries as a moral imperative for its citizens. From the EC-Seal Products case, the body of evidence that should at a minimum be considered includes public opinion surveys, the legislative history of the impugned measure, and other domestic and international measures concerning the sustainable management of fisheries implemented by an Arctic State. Other potential evidence should include evidence of the historical practices and regulations of fisheries by an Arctic State, and the cultural significance of fisheries to the Arctic State. While none of the foregoing evidence alone will carry the day, each will contribute to a finding that sustainable management of fisheries is a moral concern for the Arctic State. To the extent possible, an Arctic State is also advised to gather evidence of its moral concern in concert with its policy development. Doing so will facilitate both design of a trade-impeding measure to meet the regulatory objective and an assessment of compliance with GATT Article XX(a), including the “necessity” analysis determined by weighing and balancing a number of factors including a measure’s contribution to its objectives (whether a material contribution or just some contribution) and its trade restrictiveness in light of the importance of the public morals at stake. One last consideration for an Arctic State is garnering the evidence required to satisfy the difficult test of the chapeau under GATT Article XX. As noted above, such evidence must justify any differential treatment of, and/or among, the Arctic State’s WTO member trading partners. Therefore, evidence demonstrating how the impugned measure fairly and predictably adjusts for WTO member countries with comparable fisheries policies and for WTO member countries at different stages of economic development, evidence of negotiations (or attempts to negotiate) with WTO member trading partners with a view to concluding bilateral or multilateral agreements and evidence of how the implementation and administration of the impugned measure respects basic fairness and due process will all be very important.

CHAPTER 15

The Changing Arctic and an Adaptive Approach to the Protection of Arctic Marine Ecosystems Guifang ( Julia) XUE and Yu LONG1 Abstract The Arctic is known for its unique environment of outstanding natural beauty, resources, and rich ecosystems. However, at the present pace of rising temperatures induced by climate change, the Arctic seas and oceans are changing so fast that few places in the world may equal their rates of change. The melting of Arctic sea ice is likely to open up more opportunities for resource exploitation and possible new functions of the region. Driven by the potential for economic gains, both Arctic and non-Arctic States have begun to pay unprecedented attention to the region. Attracting ever stronger and growing interests, the region faces severe challenges associated with global warming, rapid development, and exploitation of natural resources. This situation poses serious threats to the environment, particularly the Arctic marine ecosystems. Against this background, this paper presents the ongoing changes to the Arctic under the combined consequences of global warming and intensified human activities for resource exploitation, causing environmental problems and threats to the region. The paper then turns to an examination of the existing legal regimes at the global and regional levels with a particular emphasis on protection of the Arctic marine environment and conservation of biological resources. By so doing, the paper seeks to determine their linkages and applicability where relevant to the Arctic and identify the gaps with regard to the protection of Arctic marine ecosystems. Based on this analysis, the paper points out that the existing legal regimes are highly fragmented and sectoral in their approach and do not address the most critical issues present in the region. In order to prevent the destruction of one of the world’s most iconic regions, the paper advocates adaptive actions to face the changes, including the application of precautionary principles and an ecosystem-based approach. The paper proposes the

1  Guifang (Julia) Xue is Chair Professor of International Law, KoGuan Law School, Shanghai Jiao Tong University; Yu Long is a JM student majoring in the Law of the Sea at the KoGuan Law School. Author contact: [email protected]. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/bergen-xue.pdf.

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adoption of a Pan-Arctic agreement to integrate protections for the Arctic environment and marine ecosystems combined with governance approaches tailored to the region’s particular requirements and environmental conditions.

Keywords Climate change – global warming – Arctic marine ecosystem – precautionary principle – ecosystem based approach

1

The Changing Arctic and Emerging Challenges

Climate change induced global warming and sea level rise is likely to open up more opportunities for resource exploitation in the Arctic region, but this in turn may lead to the intensification of the competition over the usage of the Arctic region and its resources.2 As a global crossroad, the Arctic lies between commercial and environmental interests and is becoming a region of growing strategic importance. On the one hand, the region holds substantial natural resources that attract many actors to investigate possible ways to exploit the resources for economic gain. On the other hand, with a particularly pristine and vulnerable environment, the need to protect the intact ecosystem of the Arctic from being damaged cannot be overemphasized. 1.1 The Melting Sea Ice and Alluring Opportunities Scientific literature has suggested that climate change in the Arctic region is taking place.3 Although there are uncertainties in identifying the causes for past changes in the Arctic biology as well as providing accurate predictions with regard to the socio-economic effects of changes in biological resources, scientific reports from different organizations have confirmed the ongoing

2  ACIA, Arctic Climate Impact Assessment-Scientific Report (Cambridge University Press, 2005), pp. 652 and 693. 3  Ibid., pp. 3–6; See also T. Barry, D. Berteaux, and H. Bültmann (eds.), Arctic Biodiversity Assessment: Status and Trends in Arctic Biodiversity (Akureyri, The Conservation of Arctic Flora and Fauna, 2013), pp. 49–54. See also a series of reports by IPCC, especially its Fourth Assessment Report and Fifth Assessment Report, which are important scientific consensus with regard to climate change, available at http://www.ipcc.ch/publications_and_data/ publications_and_data_reports.shtml.

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changes in the region.4 Back in 2004, the Arctic Council released an overview report on the Arctic Climate Impact Assessment (ACIA), and its first and most important finding was that the “Arctic climate is now warming rapidly and much larger changes are projected”.5 The observation is further expressed in a series of reports by the Intergovernmental Panel on Climate Change (IPCC) whose key function is to evaluate “the most relevant scientific, technical and socio-economic information produced worldwide relevant to the understanding of climate change”.6 The IPCC’s latest report in 2014 showed that the Arctic is getting warmer at double the speed of the global average in the past few decades.7 However, it should be noted that the warming, both in terms of speed and extent, in the Arctic is not unified and its consequences also differ due to the geographic or ecological varieties of different areas.8 Consequently, the increase in temperature has resulted in an increasing sea level rise in the marine Arctic where effects on species and ecosystems, associated with a decrease in sea ice extent and duration, have already been observed.9 The key concern is the rapid loss of multi-year ice in the central Arctic basins and changes in sea ice dynamics on the extensive Arctic shelves, which affect the biodiversity and productivity of marine ecosystems.10 4   U. Cubasch and D. Wuebbles, et al., ‘Introduction’. In: T.F. Stocker, et al. (eds.), Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge/New York: Cambridge University Press, 2013), pp. 120–136. 5   For discussions, see S.J. Hassol, Impacts of a Warming Arctic: Arctic Climate Impact Assessment. ACIA Overview Report (Cambridge/New York: Cambridge University Press, 2004), p. 10. 6   Introduction of the Organization, Intergovernmental Panel on climate change, available at http://www.ipcc.ch/organization/organization.shtml. 7   Hassol, supra note 5, p. 8. 8   ACIA, supra note 2, p.1003; see also M.B. West, ‘Arctic Warming: Environmental, Human, and Security Implications’, 42 Vanderbilt Journal of Transnational Law, No. 4 (October), 2009, 1084. 9   Since there are no universally accepted definitions of the “Arctic Ocean” or “marine Arctic”, the paper uses the latter concept to include the entire marine environment and ecosystems across the region with distinction where applicable to areas under or beyond national jurisdiction. The paper adopts a broad definition of “ecosystem” to include all species and their habitats. Several physical factors combined to make the Arctic marine ecosystems unique including: a very high proportion of continental shelves and shallow water; a dramatic seasonality and overall low level of sunlight; extremely low water temperatures; the presence of extensive areas of multi-year and seasonal sea-ice cover; and a strong influence from freshwater, coming from rivers and ice melt. See ACIA, supra note 2, p. 454. 10  Barry, supra note 3, p. 22.

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Sea ice supports a vast array of life in the Arctic and represents a critical habitat for many species.11 Sea ice is being lost at a faster rate than the projected climate scenarios, and the retreat will quickly alter the quality of its entire ice ecosystem and is expected to impact the whole Arctic marine ecosystem.12 The report of ACIA (2004) pointed out that most of the presently ice-covered Arctic areas are very likely to experience reductions in sea ice extent and thickness.13 The 2014 IPCC report revealed that the Arctic sea ice decreased at a fast rate (about 3.5 to 4.1% per decade), and it is worth mentioning that the data was collected during the period from 1979 (when satellite observations commenced) to 2012.14 In fact, the Arctic sea ice extent fell far below the above estimates, and it broke the lowest record of minimal and thickness level in the summer of 2007.15 A secondary effect of climate change is ocean acidification. Since the solubility of CO2 is higher in cold water than warm water, Arctic marine ecosystems are especially prone to acidification, and there are already signs of such changes in the Arctic Ocean.16 The threat to calcareous organisms may have cascading impacts on marine ecosystems including potential impacts on biodiversity and fisheries.17 The most prominent climate-related changes to Arctic biodiversity are northward (and upward on mountain slopes) range shifts observed by both scientists and Arctic residents.18 Given its unique geographic location, extreme and often hostile environmental conditions in light and temperature, the Arctic is a place for the local

11  Effects with regard to the melting of Arctic sea ice on the population levels of Arctic marine biodiversity are still not fully understood. See N. Loukacheva, et al. (eds.), Polar Law Textbook II. (Copenhagen, Nordic Council of Ministers, 2013), p. 98. 12  E. Tedsen, S. Cavalieri and R.A. Kraemer (eds.), Arctic Marine Governance (Berlin/ Heidelberg: Springer Berlin Heidelberg, 2014), p. 27. 13  ACIA, supra note 2, p. 694. 14  IPCC, ‘Summary for Policymakers’, In: Core Writing Team, R.K. Pachauri and L.A. Meyer (eds.), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Geneva, IPCC, 2014), p. 4. 15  Tedsen, supra note 12, p. 30. 16  Barry, supra note 3, p. 22. 17  The Arctic Species Trend Index (ASTI) uses population trend data from 890 populations of 323 vertebrate species (37% of known Arctic vertebrate species) using 1970 as the baseline year. For details on key findings, see Barry, supra note 3, p. 34. 18  This includes mammals, birds, amphibians, fish, terrestrial and marine invertebrates, parasites, plants and marine plankton (including new pest and invasive species). See Barry, supra note 3, p. 41.

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communities (the Arctic and adjacent circumpolar states) to try to maintain traditional livelihoods. Nowadays, others have vested interests, stimulated by the quickly emerging new opportunities for economic activities, particularly during extended periods of daylight in the long northern summers. This includes activities such as hydrocarbon exploration and development, shipping across two possible shipping routes (the Northern Sea Route and Northwest Passage), and the possibility of increased fisheries activity.19 Indeed, human impacts have increased recently in much of the Arctic due to the advancement of modern technology, yet, increased shipping and offshore hydrocarbon activities, exploration and exploitation of mineral resources, and overexploitation of whales have negatively affected the Arctic ecosystems, and it is more pronounced there than elsewhere on the globe.20 The warming Arctic and reduced ice coverage and thickness enabling other human activities have the potential to harm the ecosystem with increased pollution.21 Adverse impacts from ships and shipping include underwater noise, damage to sea-water quality, chemical discharges and ballast water exchange. Other predicted effects and stressors, developments in the areas of pollutants and chemicals, natural resources, shipping, fisheries, tourism, and military activities may also cause severe impacts on the Arctic environment. These human activities may also compete with fish in a spatial sense or affect them by pollution and other impacts. Pollution from floating debris including plastics may pose a threat to Arctic species. Unique Arctic habitats for flora and fauna have been disappearing over recent decades. The current and future Arctic fisheries could lead to over-exploitation of target species and a variety of impacts on non-target species, such as dependent species due to predator-prey relationships, associated species due to by-catch and benthic species due to bottom fishing techniques.22 Fishing activities also affect the integrity of the marine environment and ecosystem, and the pattern in the Arctic is not likely to be fundamentally different from other parts of the globe. Increasing access to Arctic resources has triggered great concerns about possible conflicts both among the Arctic States and between Arctic and nonArctic States.23 During the Cold War era, the Arctic region was the stage for 19  For discussions, see Loukacheva, supra note 11, 97. 20  Barry, supra note 3, p. 9. 21  Loukacheva, supra note 11, p. 97. 22  See Subsection 5.5 of UNCLOS. 23  R. Rayfuse, ‘Melting Moments: The Future of Polar Oceans Governance in a Warming World’, 16 Review of European Community & International Environmental Law, No. 2, July 2007, 214.

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various different military activities by virtue of its important geological location and military value.24 Since the end of the Cold War, the Arctic region has changed from a cold front of the “Far North” to a “policy center” with global attention, in addition to its abundant natural resources, living and non-living.25 The prospect of an ice-free Arctic has set off a geopolitical race for resources and space competition in the Arctic.26 Meanwhile, signals are flashing for the desirability of cooperation among Arctic States to reflect their expectations for a united voice on Arctic affairs. In May 2008, foreign ministers of the five Arctic littoral States (Canada, Denmark, Norway, the Russian Federation, and the United States) met in Ilulissat, Greenland and signed the Ilulissat Declaration.27 The document “excluded fellow member states in the Arctic Council that technically did not have Arctic Sea coasts (Sweden, Finland and Iceland) and the representatives of the EU”,28 and also proclaims that the five states bordering the marine Arctic have a predominant role on Arctic issues.29 The Declaration confirms the role of the Arctic Council as a mechanism of cooperation concerning the regional issues. However, to ensure the effectiveness of any measures dealing with protection of the Arctic environment, non-Arctic States with an interest in Arctic resources should also be taken into account,30 as they have certain legitimate rights and interests concerning the region as the coastal States under the common inter national legal regime. For instance, the climate change-induced threats to the Arctic and long-range transboundary pollutants are actually generated outside the region and require a broad participation including non-Arctic 24  R. Huebert, ‘The Law of the Sea and the Arctic: An Unfulfilled Legacy’, 18 Ocean Yearbook Online, No. 1, 2004, 197. 25  In 2007, Russia planted a flag on the seabed of the North Pole, and the action marked the start of “competition” over portions of the polar region through establishing claims of sovereignty and sovereign rights. See N. Loukacheva, J. Jabour, J.G. Winther and Ø. Ravna (eds.), Polar Law and Resources (Copenhagen: Nordisk Ministerråd, 2015), p. 29. 26  See A. Epstein, ‘New Approach to an Old Problem: Managing Fish Resources in the Beaufort Sea’, 11 Chicago Journal of International Law, 2010–2011, 757; and See H.H. Hertell, ‘Arctic Melt: the Tipping Point for an Arctic Treaty’, 21 Georgetown International Environmental Law Review, No. 3, 2008–2009, 566. 27  The Ilulissat Declaration, Arctic Ocean Conference Ilulissat, Greenland, 27–29 May 2008, available at http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf. 28   J.D. Greenberg, ‘Arctic in World Environmental History’, 42 Vanderbilt Journal of Transnational Law, No. 4, October 2009, 1358. 29  L. Weidemann, International Governance of the Arctic Marine Environment. Hamburg Studies on Martime Affairs, 27 (Cham, Springer International Publishing, 2014), p. 58. 30  M.A. Verhaag, ‘It Is Not Too Late: The Need for a Comprehensive International Treaty to Protect the Arctic Environment’, 15 Georgetown International Environmental Law Review, 2002–2003, 578.

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States. The region may have to witness a geopolitical shift from the previous secluded mode to a situation in which competition and cooperation co-exist between the Arctic States and user States. 1.2 Increasing Environmental Issues and Deteriorating Ecosystems The Arctic features outstanding natural beauty and rich ecosystems, and is regarded as a haven of biodiversity.31 Its vast array of biodiversity includes many globally significant populations from large marine mammals (such as the polar bear and bowhead whale) to abundant fish stocks.32 The Arctic supports a range of endemic species and is gaining growing recognition for the critical role it plays in supporting the life cycle of a number of threatened and endangered species,33 and in the ecosystem as a habitat, foraging and spawning grounds and as a migratory corridor.34 The Arctic marine ecosystem and biodiversity, being affected by numerous local and global pressures as mentioned earlier, is under an increasing threat by a combination of climate change conditions and intensified human exploitation activities. The rapid warming of Arctic waters and substantial reductions of sea ice coverage and thickness have resulted in subsequent changes of regional species in their timing, location, and intensity of biological production. Several species are approaching their range limits and facing extinction 31  The Arctic hosts 30% of the world’s shorebird species, two-thirds of the global numbers of geese, several million reindeer and caribou, and many unique mammals. During the short summer breeding season, almost 200 species of birds arrive from almost all parts of the world, connecting the Arctic with the rest of the globe. See Barry, supra note 3, p. 5. 32  Arctic or Arctic-influenced waters are inhabited by more than 150 species of fish, including cod, Alaska pollock, herring and capelin, and the small but numerous species such as zoo plankton. See ACIA, supra note 2, p. 484. 33  T. Barry, T. Kurvits, B. Alfthan, and E. Mork (eds.), Arctic Biodiversity Trends 2010: Selected Indicators of Change, (Akureyri, Conservation of Arctic Flora and Fauna (CAFF), 2010). 34  For detailed information, see ACIA, supra note 2, Chapter 13 and the North Pacific Fishery Management Council (NPFMC) approved a new Fishery Management Plan for Fish Resources of the Arctic Management Area (Arctic FMP), version of August 2009 and relevant Environmental Assessment / Regulatory Impact Review / Initial Regulatory Flexibility Analysis for the Arctic Fishery Management Plan (Arctic FMP EA/RIR/IRFA), version of August 2009, available at http://www.npfmc.org/arctic-fishery-management/.  Other information can be obtained through the Arctic Fisheries Working Group operating under the International Council for the Exploration of the Sea. (ICES, available at ). This working group, however, has so far been focusing exclusively on the Northeast Atlantic. See also W.E. Schrank, “The ACIA, Climate Change and Fisheries” 31 Marine Policy 5–18 (2007).

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due to a mixture of habitat loss, new competition for limited resources and increased susceptibility to diseases.35 With respect to marine fish, the Arctic communities are dominated by a few species belonging physically to different ecosystems.36 According to the 2010 Report on Arctic Biodiversity Selected Indicators of Change, some species are declining due to temperature change.37 Climate shifts could affect fish population abundance, quality, size, timing, spatial distribution, the concentration of prey, and the amount and allocation of predators.38 Fish may be reactive to changed salinity and oxygen conditions and altered ocean mixing and transport processes.39 Some species will at some stage disappear and others (e.g., due to northward migration) will be added and the relative importance of species in abundance will change as well. The predators of fish, like seabirds and marine mammals, may also be affected by the temperature change: over 60 species of seabird inhabit the region, 40 of which nest there.40 As species of importance to Arctic people or of global significance decline, for example, subsistence fishing will be affected by, among other things, competition with commercial fisheries. Another widely known species is the polar bear, which has a pan-Arctic distribution and is being endangered by the warming of its habitat.41 A scientific report revealed that polar bears will become extinct by the end of this century if global warming keeps pace at the projected rate.42 Subsequently, the changes of individual species will affect the Arctic marine ecosystems and their composition, both qualitatively and quantitatively.43 More significantly, global warming is likely to induce a regime shift in some areas among its four large marine ecosystems (three in the northern North Atlantic including the Barents and Norwegian Seas, Iceland and northeast Canada, and one in the North Pacific, Bering Sea), resulting in a very different

35  ACIA, supra note 2, pp. 489–490. 36  They are Greenland halibut, polar cod, Atlantic and Pacific cod, Greenland cod, walleye pollock, capelin, long rough dab, yellowfin sole, Atlantic and Pacific herring, and redfish. See ACIA, supra note 2, p. 484. 37  Barry, supra note 33, p. 13. 38  ACIA, supra note 2, p. 692. 39  ACIA, supra note 2, p. 507. 40  ACIA, supra note 2, p. 489. 41  “Among the known 12 of 19 subpopulations, 8 are declining”. See Barry, supra note 33, p. 13. 42  Weidemann, supra note 29, p. 107. 43  ACIA, supra note 2, p. 770.

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species composition.44 Comparing with Icelandic waters, the ecosystems around Greenland and off northeast Canada (east of Newfoundland and Labrador) reflected more obviously the influence of the climate.45 This is because they are located in the more southern waters of the marine Arctic, whereas a northward movement in the distribution of key species resulted from increased competition among species.46 It should be noted though that the distributions of fish may be affected by other factors, and it may be misleading to expect a northwards movement of fish as a simple response to an increase in temperature and reduction in sea ice.47 While research findings on the warming weather will have an increasingly obvious influence on the Arctic marine ecosystem and biodiversity,48 it is difficult to explain detailed causes and future fluctuation trends due to lack of sound data, let alone predict an exact scenario.49 In view of the broad spatial scope of the marine Arctic, such undesirable effects no doubt will become more apparent. Changes in the distribution, geographical ranges, and abundance of species (including invasive alien species) and in the habitats of endemic Arctic species, both in terms of the genetic diversity and behavior of migratory species, have been confirmed about spatially and temporally differentiated features.50 The magnitude of these changes will exert major influences on biological dynamics, while some of the most rapid ecological change is likely to show more evidence in the Arctic environment.51 The negative effects caused by warming temperatures will affect the Arctic marine ecosystem more seriously than other marine areas and the terrestrial Arctic.52 On the one hand, pollution in the marine Arctic may have more severe consequences than in other areas because the Arctic serves as a sink for many 44  One area in which ecosystem shift occurred is the Bering Sea. See ACIA, supra note 2, p. 692. 45  Ibid. 46  J.D. Reist, et al. (eds.), ‘General Effects of climate change on Arctic Fishes and Fish Populations’, 35 Ambio, No. 7, November 2006, 370. 47  A.H. Hoel, ‘Do We Need a New Legal Regime for the Marine Arctic’, 24 International Journal of Marine and Coastal Law, 2009, 451. 48  Full knowledge on the vast majority of Arctic biodiversity is limited, especially with marine resources in the areas beyond national jurisdiction. See R. Rayfuse, ‘Protecting Marine Biodiversity in Polar Areas Beyond National Jurisdiction’, 17 Review of European Community & International Environmental Law, No. 1, April 2008, 3. 49  Barry, supra note 33, p. 9. 50  See subsection 5.5 on UNCLOS. 51  Barry, supra note 3, p. 23. 52  Loukacheva, supra note 11, p. 98.

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hazardous substances introduced into the marine environment elsewhere and transported by ocean currents and air flows to the high north, where their further transport is prevented by low temperatures.53 On the other hand, high levels of exploitation activities pose severe threats to the marine ecosystem and local communities where they enjoy lesser protection than terrestrial ones.54 Protected areas play a valuable role in protecting Arctic and global biodiversity, but while protected terrestrial areas increased in the Arctic from 1991 to 2010 (5.6% to 11%), the marine ecosystem lacks sufficient attention.55 Regardless of its exact extent, global warming portends significant consequences for Arctic species and ecosystems. With unknown long-term human impact, a continued warming trend and the possibility the Arctic region will develop from an ice-covered region to an ice-free one, a heightened competition over the usage of resources and space may well occur. The need for regional cooperation will become ever urgent to protect Arctic marine ecosystems. This has given rise to the question of whether the existing legal regimes and mechanisms may provide effective protection for the Arctic marine environment and its ecosystems. The next section will review the existing regimes and identify the gaps for the protection of Arctic marine ecosystems. 2

The Existing Regimes Applicable to Arctic Marine Ecosystems

The marine domain of the Arctic is not subject to a comprehensive regime such as an “Arctic Treaty” modeled by the 1959 Antarctic Treaty,56 yet there exists a range of multiple international instruments at various levels. There is no legal vacuum in this region as is sometimes maintained. This section briefly examines some relevant international and intergovernmental framework conventions and agreements. Some pursue conservation of marine ecosystems and environments, while highlighting the distinctive geographical particularities within the Arctic region.

53  D. VanderZwaag, R. Huebert, and S. Ferrara, ‘Arctic Environmental Protection Strategy, Arctic Council and Multilateral Environmental Initiatives: Tinkering While the Arctic Marine Environment Totters’, 30 Denver Journal of International Law and Policy, 2001– 2002, 131. 54  Loukacheva, supra note 11, p. 98. 55  Barry, supra note 33, p. 14. 56  The Antarctic Treaty, signed 1 December 1959, 402 U.N.T.S. 71. Entered into force 23 June 1961, available at http://www.ats.aq/documents/ats/treaty_original.pdf.

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2.1 International Framework Conventions Global instruments commonly provide an applicable regulatory framework to the Arctic with their overarching objectives and general guidance. The United Nations Convention on the Law of the Sea (UNCLOS), known as the “Ocean Constitution”, is the most important source of law on ocean related activities.57 Others are the Fish Stocks Agreement (FSA),58 an implementation agreement of UNCLOS; the Convention on Biological Diversity (CBD);59 the Convention on Wetlands of International Importance, especially as Waterfowl Habitat (RAMSAR);60 and a number of other multilateral treaties also have critical ramifications for the Arctic marine ecosystem. 2.1.1 The UNCLOS and Fish Stocks Agreement Although it can be categorized as a frozen ocean that melts significantly only in the summer, the marine Arctic is still subject to the UNCLOS framework.61 UNCLOS sets up a comprehensive framework governing various aspects of ocean-related affairs, and provides overall objectives, basic rights and obligations, albeit vague, for states to explore and exploit marine living resources and protect the marine environment. The legal framework for the conservation and exploitation of marine living resources in the areas within and beyond national jurisdictions is laid out mainly in Parts V and VII, and the regime for 57  United Nations Convention on the Law of the Sea, signed 10 December, 1982, 1833 U.N.T.S. 3. Entered into force 16 November 1994, available at http://www.un.org/depts/los/ convention_agreements/texts/unclos/unclos_e.pdf. 58  Agreement for the implementation of the provisions of the United Nations convention on the law of the sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, 4 August 1995, 2167 U.N.T.S. 3. Entered into force 11 December 2001, available at http://www.un.org/depts/los/convention_ agreements/convention_20years/1995FishStockAgreement_ATahindro.pdf. 59  Convention on Biological Diversity, signed 5 June 1992, 1760 U.N.T.S. 79. Entered into force 29 December 1993, available at https://www.cbd.int/convention/text/. 60  Convention on Wetlands of International Importance, Especially as Waterfowl Habitat, signed 2 February 1971, 996 U.N.T.S. 245. Entered into force 21 December 1975, available at http://portal.unesco.org/en/ev.php-URL_ID=15398&URL_DO=DO_TOPIC&URL_ SECTION=201.html. 61  Seven of eight Member States of the Arctic Council are parties to UNCLOS, namely, Canada, Denmark (Greenland), Finland, Iceland, Norway, Russia and Sweden. Though the United States is not a party, it is still subject to UNCLOS since most of the provisions are customary international law. For a fuller account on the UNCLOS fisheries regime, see G. Xue, China and International Fisheries Law and Policy, (Dordrecht: Nijhoff, 2005), Chapter 1.

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the preservation and protection of the marine environment is centered in Part XII. Part V of UNCLOS grants coastal States sovereign rights and jurisdiction to manage fisheries resources and fishing activities within their Exclusive Economic Zones (EEZ, Articles 55, 57) where coastal States are granted exclusive authority to determine the way that fisheries resources are utilized, as well as a general obligation to prevent the resources therein from being endangered by overexploitation (Articles 61, 62). UNCLOS also provides for states to take special measures for the conservation and management of some categories of migratory species specified in Articles 63–68. The regime for high seas fisheries is established in Articles 116–120 of Part VII Section 2 where it imposes general obligations on states to adopt conservation measures for their own nationals, or to cooperate with other states in taking such measures. These requirements need to be observed as important rules for Arctic coastal States and states with an interest in the exploitation of fish stocks or conducting fisheries activities in the nearby waters of the marine Arctic. However, there is no indication of how these obligations are to be applied in any given situation. Basically, high seas fish stocks are shared among the fishing States. In a shared fishery, the states concerned may have widely different opinions on the conservation measures that need to be employed. Section 5 of UNCLOS Part XII entitled “International Rules and National Legislation to Prevent, Reduce and Control Pollution of the Marine Environment”, requires signatory states to enforce international laws and regulations and national legislation to prevent, reduce and control pollution of the marine environment. Specifically, UNCLOS addresses pollution from the following sources:

· pollution from land-based sources (Article 207); · pollution from seabed activities (Article 208); · pollution from activities in the area (Article 209); · pollution by dumping (Article 210); · pollution from vessels (Article 211); and · pollution from or through the atmosphere (Article 212). Section 6 (“Enforcement”) and Section 7 (“Safeguards”) also provide general rules and duties for states to prevent pollution from various sources by the employment of management measures. As a framework convention, however, UNCLOS does not provide specific provisions on state obligations, nor adequate mechanisms to be put into practice for the protection of marine biodiversity in the Arctic context. For the scope of applicable areas under

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UNCLOS, only Article 234, known as the “Arctic Article”,62 directly mentions the ice-covered areas. Even this article still faces obstacles if the amount and duration of the sea ice cover decreases as expected.63 From the perspective of marine biodiversity, the only relevant provisions of UNCLOS include Article 194(5) and Article 196(1). While the former specifies “Measures to prevent, reduce and control pollution of the marine environment” to mandate the state to protect the environment including the Arctic area and fragile habitats and species, the latter stipulates the “Use of technologies or introduction of alien or new species” and obligates States to take measures necessary “to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species” to the ocean which may cause harmful changes. Undoubtedly, these obligations are too broad to be effective without the implementation of institutions in the Arctic region. Article 192 of UNCLOS, combined with Articles 123 and 197, call for states to protect the marine environment and to coordinate the management, conservation, exploration and exploitation of the living resources bordering their seas. These provisions provide a legal basis and general obligations for the Arctic states, yet it should be noted that the cooperative obligations are not strong enough to guarantee effective implementation.64 The wording of Article 123 calls for coastal States of an enclosed or semi-enclosed sea to cooperate in the exercise of their rights and duties under UNCLOS, but the word “should” other than a stronger “shall” may arguably imply the non-mandatory duty of cooperation.65 Article 197 of UNCLOS stipulates states are to “cooperate”, but just “as appropriate” and “taking into account characteristic regional features”. In view of the above, and taking into account the important geological and political units for the Arctic States to cooperate for the purpose of protecting Arctic marine biodiversity, the general provisions of UNCLOS need to be supplemented by specialized agreement. Necessarily, the general and vague provisions of UNCLOS on high seas fisheries were strengthened by the FSA concluded in 1995, which consolidates the legal framework for the conservation and management of straddling and highly migratory stocks (HMS) by regional fisheries management organizations 62  Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea, 1982: A Commentary, vol. 4 (Dordrecht: Nijhoff, 1991), Article 234.1. 63  Weidemann, supra note 29, p. 79. 64  T. Henriksen, ‘Conservation and Sustainable Use of Arctic Marine Biodiversity’, 1 Arctic Review, No. 2, 2014, 276. 65  Weidemann, supra note 29, p. 85.

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(RFMOs). The FSA does not enjoy the nearly universal acceptance that UNCLOS does. Still, FSA spells out the broad rights and obligations under UNCLOS, and sets out a wide range of detailed measures for the conservation and management of straddling and HMS. One of its significant aspects in relation to the protection of Arctic marine ecosystem is that all of the Arctic States are parties to it, including the United States. To fulfill the objective of long-term conservation and sustainable use of straddling and HMS, the FSA thus takes the marine ecosystem as one of its protective principles.66 The FSA also contains a number of provisions that are of practical importance and particularly relevant to the Arctic, as it introduces some new management concepts including a precautionary approach for fisheries management (Article 6). The precautionary approach, introduced in Article 5(c) and elaborated further in Article 6 and Annex II of the agreement, is particularly important for the high sea areas of the Central Arctic Ocean where no fisheries have yet operated, but there is scientific uncertainty as to how fish populations will respond to changing water temperatures and icy conditions. In the unique Arctic marine environment, the application of the precautionary approach is critically important—guidelines and reference points should be carefully heeded. Articles 8 and 10 of the FSA stipulate the establishment of a cooperation mechanism through the functions of RFMOs. They propose that relevant coastal States and states fishing on the high seas establish a regional RFMO, and states with a real interest in the fisheries concerned may join in such an RFMO without any discrimination (Article 8.3). This means that apart from the five Arctic coastal States, the remaining members of the Arctic Council and other states could be regarded as states which have a “real interest”. Then questions arise on how to deal with their participation under the RFMO. Views are divided on whether, in the short term, an abundance of fish stocks in the marine Arctic will allow for commercially viable fisheries. Nevertheless, it is important for relevant states to take actions under the changing circumstances without delay as most of the high seas areas in question are not covered by any RFMO. A new RFMO may not be established prior to the commencement of any fisheries in these areas. Besides, Article 9(2) of the Agreement establishes an obligation to inform, so the question may be asked: should those other states or entities be informed? Lastly, because the FSA does not deal with 66  The FAO Code of Conduct for Responsible Fisheries emphasizes a similar principle by calling on states to promote the maintenance of the quality, diversity and availability of fisheries resources. See FSA, Preamble Para. 8, Article 2. For discussions on this account, see Henriksen, supra note 64, 263.

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discrete high seas fish stocks, how many of the Arctic species may be covered? Questions such as these have to be carefully handled to ensure principles and measures are implemented to accomplish their full potential. It remains to be seen whether the concerned Arctic States can overcome the political, economic, legal and technical barriers to implement these global instruments. 2.1.2 The Convention on Biodiversity (CBD) The CBD objective is to ensure the conservation of biological diversity, and is regarded as a key document contributing to sustainable development.67 Though overlapping thematically with UNCLOS, through the adoption of the CBD general obligations of environment protection under the UNCLOS framework have been extended and supplemented.68 As the first treaty to adopt an integrated approach to implement the protective measures, the CBD underscores in its preamble that the protection of biological diversity is the “common concern of mankind”.69 The major provisions implementing the CBD’s objectives are reflected in Article 8 on in-situ conservation and Article 10 on sustainable biodiversity. The significance of the latter lies in its emphasis on the interaction between species and the environment and implies the focal point on the value of ecosystems,70 which is of particular relevance to the protection of Arctic marine ecosystem and biodiversity. The CBD is regarded as a practical tool providing specific protective measures as outlined by Articles 8–10. It also requires state parties to identify and monitor (Article 7) the components of biological diversity, and conduct impact assessment to avoid or minimize adverse effects (Article 14). The CBD requires states to fulfill their obligations with a comprehensive approach including the adoption of national strategies, plans and programs (Article 6) for the conservation and sustainable use of biological diversity.71 According to Article 4(a), the CBD is applicable to areas under national jurisdiction. The CBD is described as an instrument to preserve biodiversity by virtue of sovereign rights, and requires states parties to respect obligations

67  Article 1 of the CBD specifies its three main goals: to ensure the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising from genetic resources. 68  All Arctic States (with the exception of the United States) ratified this convention. For discussions, see Henriksen, supra note 64, p. 257. 69  Loukacheva, supra note 11, p. 103. 70  Henriksen, supra note 64, p. 259. 71  For detailed discussions, see Henriksen, supra note 64, p. 260.

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in respect of their activities.72 Article 8 of the CBD calls on states to manage relevant processes “as far as possible and appropriate” to reduce the “adverse effect” on biodiversity. Regarding cooperation in areas beyond national jurisdiction (ABNJ), the CBD does not prescribe specific obligations for the concerned states (Article 5). It is not clear to what extent and how the obligations in the ABNJ are being implemented, as the CBD relies on “mutual interest” rather than an international consensus.73 The CBD underscores the establishment of protected areas, including marine protected areas (MPAs), but it does not contain specific stipulations for states to establish and manage MPAs within national jurisdiction pursuant to Article 4(a), whereas CBD Article 22(2) provides states with rights and duties to implement the law of the sea.74 Climate change has undoubtedly influenced the way protected areas are established,75 and may highlight the need to develop a circumpolar protected area strategy to build upon ongoing national initiatives, e.g., MPAs planning, to allow more effective conservation in the Arctic context. Climate change also raises the question of how to apply the CBD to areas beyond the boundaries of current protected areas, such as corridors connecting migrating species, especially those unprotected areas beyond national jurisdiction.76 2.1.3 The RAMSAR Wetlands are the main ecosystem in the Arctic, covering nearly 60% of the total land surface area and providing a wide range of functions such as the maintenance of permafrost, water regulation and filtration.77 The Arctic wetlands are of critical importance for global biodiversity, offering unique habitats to both plants and animals, and storing enormous amounts of greenhouse gases, yet they are highly vulnerable to disturbance and slow to recover due to their complex character.78 Serving as the main source of livelihood for local indigenous peoples, large parts of the Arctic have been under threat of 72  CBD Preamble, paras. 4–6. For relevant discussions, see T. Marauhn, ‘The Potential of the Convention on Biological Diversity to Address the Effects of Climate Change in the Arctic’, 50 Environment & Policy, 268, in: T. Koivurova, E. Carina H. Keskitalo, and Nigel Bankes (eds.), Climate Governance in the Arctic (Springer Netherlands, 2009), pp. 263–286. 73  Ibid., p. 268. 74  Tedsen, supra note 12, p. 225. 75  Loukacheva, supra note 11, p. 98. 76  Tedsen, supra note 12, p. 227. 77  The Arctic wetlands include peat lands, rivers, lakes, and shallow bays. For more details, see http://www.wetlands.org/Whatarewetlands/Arcticwetlands/tabid/2740/Default.aspx. 78  Ibid.

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damage from oil and gas exploration, mining and the melting of permafrost due to a warming climate.79 To protect the important wetlands, all of the Arctic States agreed to be bound among the 162 state parties to the RAMSAR, a key convention on wetlands and the species found there. Recognizing the fundamental ecological functions of wetlands and their economic, cultural, scientific, and recreational value, the objective of RAMSAR as expressed in Article 1(1) is “to stem the progressive encroachment on and loss of wetlands now and in the future,” as “a resource of great economic, cultural, scientific and recreational value.” At the center of the RAMSAR philosophy, the “wise use” concept is placed at the heart of the conservation and sustainable use of wetlands and their resources for the benefit of humankind.80 Each party designates “suitable wetlands within its territory” for inclusion on the list. Among the widely distributed wetlands across the Arctic (e.g., in Russia), the most extensive forested and non-forested peat lands represent one of the 6 RAMSAR wetland types.81 In addition to the aforementioned framework conventions, there exist other global instruments with specific objectives relevant to the Arctic flora and fauna, including the Convention on the Conservation of Migratory Species of Wild Animals,82 Convention on International Trade in Endangered Species of Wild Fauna and Flora, widely known as CITES,83 and the International 79   For details, available at http://www.RAMSAR.org/news/RAMSAR-focuses-on-arcticwetlands. 80  W.J. Gutowski, H.l. Wei, C.J. Vörösmarty, and B.M. Fekete, ‘Influence of Arctic Wetlands on Arctic Atmospheric Circulation’, 20 Journal of Climate No. 16, 2007, 4243. 81  Loukacheva, supra note 11, p. 107. 82  Convention on the Conservation of Migratory Species of Wild Animals, signed 23 June 1979, 1651 U.N.T.S. 33. Entered into force 1 November 1983, available at http://www.cms .int/en/node/3916.  The Convention has four Arctic States (Denmark, Finland, Norway, and Sweden) consented to be bound among its 116 state parties. It aims to conserve terrestrial, aquatic and avian migratory species throughout their range, and calls for the “Range States” to pay “special attention” to the covered species, and take concerted action by concluding global or regional agreements on the conservation of “such species and their habitat.” see CMS Art. 1(1)(a), Art. 2(2–3). One example of an Arctic species is the narwhal. The CMS acts as a framework convention and provide guidelines for the Arctic States to protect the valuable migratory species associated with the region. For relevant discussions, see Loukacheva, supra note 11, p. 108. 83  Convention on International Trade in Endangered Species of Wild Fauna and Flora, signed 3 March 1973, 993 U.N.T.S. 243. Entered into force 1 July 1975, available at http:// www.cites.org/eng/disc/text.php.  CITES has 175 state signatories including all the Arctic States. It aims to ensure the international trade in specimens of wild animals and plants not threatened for their

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Convention for the Regulation of Whaling.84 The major environmentally focused ones include the International Convention for the Prevention of Pollution from Ships, known as MARPOL 73/78,85 the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, known as the London Convention 1972 and its Protocol.86 These instruments provide, either directly or indirectly, legal requirements and practical guidance from various perspectives for the Arctic States to protect their marine ecosystem accordingly. 2.2 Regional Agreements and Arrangements The Arctic provides a home for local communities and the adjacent circumpolar states to maintain traditional livelihoods. A large number of regional, sub-regional, bilateral or multilateral agreements and arrangement have been achieved applying to various parts of the Arctic dealing with specific issues. This has led to the region being governed by “a mosaic of issue-specific protection treaties”.87 Among the numerous agreements, the typical ones for present purposes include the Convention on the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention),88 the Convention on the survival. CITES in effect adopts trade measures to promote environmental protection and ecosystem quality. The species covered by CITES are listed in 3 Appendices, in accordance with the degree of protection they require. For relevant discussions, see Loukacheva, supra note 25, p. 109. 84  International Convention for the Regulation of Whaling, signed 2 December 1946, 161 U.N.T.S. 72. Entered into force 10 November 1948, available at http://us.whales.org/issues/ in-depth/international-convention-for-regulation-of-whaling-icrw. 85  International Convention for the Prevention of Pollution from Ships, 2 November 1973, 2 I.L.M. 1319 as modified by the 1978 Protocol Relating to the International Convention for the Prevention of Pollution from Ships (17 Feb 1978, 17 I.L.M. 546) and the 1997 Protocol to Amend the International Convention for the Prevention of Pollution from Ships (26 Sept 1997) and as regularly amended. Entry into force varies for each Annex. At the time of writing Annexes I–VI were all in force, available at http://www.eisil.org/index .php?t=link_details&id=609&cat=424. 86  Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, signed 29 December 1972, 26 U.N.T.S. 2403. Entered into force 30 August 1975, available at https://treaties.un.org/doc/Publication/UNTS/Volume%201046/volume1046-I-15749-English.pdf. 87  O.R. Young, ‘Governing the Arctic: From Cold War Theater to Mosaic of Cooperation’, 11 Global Governance, 2005, 10. 88  Convention for the Protection of the Marine Environment of the North-East Atlantic, signed 22 September 1992, 32 I.L.M. 1072. Entered into force 25 March 1998, available at http://www.ospar.org/html_documents/ospar/html/ospar_convention_e_updated_ text_2007.pdf.

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Future of Multilateral Cooperation in North-East Atlantic Fisheries (NEAFC Convention),89 and the Agreement on the Conservation of the Polar Bear (Polar Bear Agreement).90 2.2.1 The OSPAR Convention Regional agreements in general enjoy a better position in implementing stronger international law and policy for environmental protection; this is exactly the case for the OSPAR Convention. It is the only regional convention designated for the protection of the marine environment that covers a portion of the Arctic accounting for almost 40% of the entire OSPAR area.91 It is expected to have a crucial role to play for the Arctic marine ecosystems and biological diversity. It adopts a broad scope to provide comprehensive regulations for most environment-relevant human activities, apart from fishing, whaling and shipping, over certain parts of the marine Arctic both under and beyond national jurisdiction.92 The OSPAR Convention imposes strict obligations on its signatories via recalling the UNCLOS regime on pollution prevention from various sources.93 Some Arctic States, namely Denmark, Finland, Iceland and Norway, have undertaken efforts in preventing and eliminating pollution from land-based sources, including dumping, incineration and offshore oil and gas installations.94 The Convention also adopts provisions relating to navigation and the exploitation of natural resources, and has achieved a concrete furtherance of the UNCLOS regime in that regard.95 Advancing the guidelines with regard to 89  Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries, 18 November 1980, 1285 U.N.T.S. 129. Entered into force 17 March 1982, available at http:// sedac.ciesin.columbia.edu/entri/texts/fisheries.north-east.atlantic.1980.html. 90  International Agreement on the Conservation of Polar Bears, signed 15 November 1973, 13 I.L.M. 3. Entered into force 26 May 1976, available at http://pbsg.npolar.no/en/ agreements/agreement1973.html. 91  “OSPAR” comes from combining bits of the words “Oslo” and “Paris”, the places where the agreements making up the OSPAR Convention were signed. It is a powerful tool, being designated for the protection of the marine environment of the North-East Atlantic from the southern tip of Spain to the North Pole. The 16 ‘Contracting Parties’ (Arctic and nonArctic States) and the European Union under OSPAR hold the key to the legal protection of part of the Arctic. See OSPAR, Articles 1 and 2. 92  The OSPAR Convention, Articles 3, 4, 5 and 7; Annexes I, II, and III. 93  The OSPAR Convention, Articles 3, 4, 5, and 7. 94  For a fuller account on this, see Weidemann, supra note 29, p. 97. 95  For example, OSPAR Article 6 sets forth the regime for a regular assessment of the quality of the marine environment.

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the protection of the marine environment, the OSPAR Convention promotes the precautionary and ecosystem based principles, and turns them into general obligations with a broader scope than that of the CBD to prevent pollution damage to the marine environment.96 Taking into account the spatial scope and diversity of marine ecosystems, the OSPAR covers a wider range of ecosystems and habitats, applying to maritime zones under and beyond national jurisdiction in parts of the Arctic Ocean.97 As one of its key objectives, the OSPAR emphasizes the protection and conservation of the marine ecosystems and biological diversity, and devotes its entire Annex V (a new annex added in 1998) to this theme. This may be viewed as a means of implementing the obligations of the parties under the CBD.98 To implement the ecosystem approach, the OSPAR Commission, in collaboration with other international regimes, adopted in 2003 a “Statement towards an Ecosystem Approach to the Management of Human Activities” through the Joint Ministerial Meeting of the OSPAR Commission, together with another major achievement, known as “Ecological Quality Objectives (EcoQOs)”.99 This system was applied to the North Sea with assistance from the International Council for the Exploration of the Sea (ICES).100 The system is generally considered as a leading framework applying the ecosystem approach to the management of human activities. However, the implementation of it, in practice, faces obstacles due to a lack of commitment from some Parties.101 As a major regional treaty to implement the CBD with regard to the conservation of marine species and their ecosystems, the OSPAR Convention operates under its Commission by cooperation among Parties.102 Regretfully, the 96  Rayfuse, supra note 48, 8. 97  The OSPAR Convention, Article 1(a). 98  Henriksen, supra note 64, 270. 99  Statement on the Ecosystem Approach to the Management of Human Activities, Towards an Ecosystem Approach to the Management of Human Activities, Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention), OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic, First Joint Ministerial Meeting of the Helsinki and OSPAR Commissions (JMM), Bremen: 25–26 June 2003, available at http://www.ospar.org/content/content.asp?menu= 00320109000066_000000_000000. 100  Bergen Declaration, Fifth International Conference on the Protection of the North Sea, 20–21 March 2002, Bergen, Norway,§4 vi. 101  OSPAR Commission, Evaluation of the OSPAR system of Ecological Quality Objectives for the North Sea, Biodiversity Series, London 2009, available at http://www.ospar.org/ content/content.asp?menu=00690302200000_000000_000000. 102  The OSPAR Convention, Article 10.

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Commission adopts decisions and recommendations by a unanimous vote of the Parties.103 The decisions can become binding only when they satisfy certain requirements such as abstaining from using an ‘opt-out’ mechanism during a period of 200 days after the voting.104 This may open up the potential to undermine the authority of the decisions. As for the recommendations, they are not binding measures at all.105 Such mechanisms, in undertaking an undefined process, may undermine not only the effectiveness of the proposed management measures, but also OSPAR’s power and mandate in the long run. In fact, the OSPAR Commission has so far focused mainly on activities like assessment and monitoring instead of adopting binding decisions.106 As a convention with significant political power, OSPAR is somehow regarded as dormant in the Arctic.107 This critique was made by and largely due to OSPAR’s incompetent action in declaring protection for 10% of the Arctic Sanctuary, to follow the mandate of the United Nations of creating a worldwide network of MPAs.108 MPAs are highly recommended for the protection of marine biodiversity within defined geographical areas. Started in 2003, the OSPAR Commission planned to establish a network of MPAs by 2010 at the above-mentioned joint meeting.109 A follow-up meeting in 2010 adopted decisions to establish six MPAs in ABNJ. However, the Commission has not yet realized the MPAs goal in ABNJ, since the Convention only impose binding power to the State Parties, thus non-contracting states are unlikely to cede their rights at the high seas.110 2.2.2 The NEAFC Convention By virtue of its spatial competence that extends to the geographic North Pole, the NEAFC Convention covers part of the Arctic Ocean.111 Interestingly, 103  The OSPAR Convention, Article 13 deals with “Decisions and Recommendations” of the Contracting Parties. 104  The OSPAR Convention, Article 13(1) and (2). Article 15 governs its amendment. 105  The OSPAR Convention, Article 13(5). 106  Henriksen, supra note 64, p. 270. 107  Weidemann, supra note 29, p. 102. 108  Ibid. 109  Declaration of the First Joint Ministerial Meeting of the Helsinki and OSPAR Commissions, Bremen, Germany, 25–26 June 2003, available at http://www.ospar.org/documents/ dbase/publications/p00255/p00255_north%20sea%20general%20report.pdf. 110  Weidemann, supra note 29, p. 103. 111  The Amendments to the Convention were adopted in November 2004 and August 2006. This Convention replaced earlier agreements regulating the Northeast Atlantic fisheries: the 1946 Convention for the Regulation of Meshes of Fishing Nets and the Size Limits

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a debate is taking place on whether the Convention covers a part of the Central Arctic Ocean to the geographic North Pole,112 or if it is only competent to regulate fishing on the high seas in the North-east Atlantic but not the Arctic Ocean.113 But there is no controversy within the national practice of the Arctic Coastal states, for example, the Nuuk Chairman’s Statement clearly referred the NEAFC as a competent organization that can extend its mandate to part of the high seas portion of the central Arctic Ocean.114 Among the Arctic Council members, Denmark (Faroe Islands and Green­­ land), Iceland, Norway and the Russian Federation are Parties to this Conven­­ tion, and Canada is a Cooperating Non-Contracting Party to the Convention.115 The NEAFC was updated in 2004 when dispute settlement procedures were added, and once again in 2006 to bring the 1980 Convention in line with developments in international legal instruments.116 The parties have agreed, voluntarily, to use those instruments as the basis for the measures taken until the amendments are ratified by all the parties.117 Different from the OSPAR, the NEAFC focuses on all fishery resources to ensure their long-term conservation and optimum utilization.118 It excludes from its scope marine mammals, HMS and anadromous stocks to avoid the duplication of being dealt with by other international agreements.119 In 2012, NEAFC adopted a Recommendation on a species of deep-sea sharks that is also in Annex 1 of UNCLOS and thereby categorized as HMS, which does not seem to conflict with the existing management role of ICCAT.120 of Fish (which established a “Permanent Commission” in 1953), and the 1959 Northeast Atlantic Fisheries Convention which established in 1963 the North East Atlantic Fisheries Commission. The geographic coverage is defined in Article 1 with a map attached in Annex 7. 112  Loukacheva, supra note 11, p. 115. 113  Henriksen, supra note 64, p. 270. 114  Chairman’s statement. Meeting on Arctic Fisheries, Nuuk, Greenland, 24–26 February 2014, available at http://naalakkersuisut.gl/en/Naalakkersuisut/News/2014/02/Arktiskhoejsoefiskeri. 115  Cooperating Non-Contracting Parties (CNCPs) are those flag States who have a real interest in fisheries in the Northeast Atlantic. They are allowed to authorize vessels flying their flag to operate in the area under the governance of the NEAFC and enforce its measures, see http://archive.neafc.org/about/neafc-faq.htm. 116  Loukacheva, supra note 11, p. 116. 117  Ibid. 118  See Article 2 of the Convention. 119  See Article 1, Para. 2 of the Convention. 120  The International Commission for the Conservation of Atlantic Tunas (ICCAT) is an inter-governmental fishery organization responsible for the conservation of tunas and

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Within the NEAFC two schemes are currently operated in relation to control measures: the Control and Enforcement Scheme and the non-contracting party scheme.121 Article 4 stipulates that the Commission set up by the Convention shall ensure its recommendations are based on the best scientific evidence available, apply the precautionary approach, take due account of the impact of fisheries on other species and marine ecosystems, and take due account of the need to conserve marine biological diversity.122 Article 7 of the Convention sets forth specific management measures including the establishment of a total allowable catch and regulation of fishing effort. These policy directives are vital in that they safeguard the effective fulfillment of the objectives of the Convention. The NEAFC Convention sets up some concrete regimes to guarantee its function and operation. Such regimes include considerations of information sharing and communication between and among the Commission and the contracting parties. This approach is reflected throughout its provisions. Another important feature is to enable the recommendations adopted by the Commission under the Convention to be binding, albeit subject to a number of exceptions.123 The Commission is also vested with powers to establish procedures for the settlement of disputes arising from the Convention.124 These measures ensure the dynamic implementation as well as the operational power of the Commission in achieving its management measures and objectives. 2.2.3 The Polar Bear Agreement The Polar Bear Agreement was the first of its kind and was regarded as successful in the international conservation of polar bears. It is also the only region-wide “hard law” treaty focusing on a specific issue. Through its implementation, it has set up a positive precedent for the Arctic States to establish a cooperation regime, regardless of their ‘special responsibilities as custodian of the Arctic’ or their ‘special interest’ to control the entire Arctic.125 tuna-like species in the Atlantic Ocean and its adjacent seas. More details are available at https://www.iccat.int/en/introduction.htm. 121  “The Control and Enforcement Scheme is an electronic surveillance scheme to control the fishing activities of vessels in the Regulatory Area—outside the fishing zones of the coastal states. The non-contracting party scheme is to address the problem of non-contracting party fishing activity in the NEAFC Regulatory Area ”, see supra note 115. See also Loukacheva, supra note 11, p. 115. 122  See Article 4, Para. 2 of the Convention. 123  Article 12 of the Convention. 124  Article 18 of the Convention. 125  The Polar Bears Agreement is a multilateral treaty signed in Oslo, November 15, 1973 by the five nations with the largest polar bear populations: Canada, Denmark (Greenland),

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To mitigate the threats from environmentally damaging activities, a comprehensive ecosystem approach has been adopted for the protection of this fragile and vulnerable marine environment. Considering the vital support of ecosystems for the polar bear species, the Polar Bear Agreement adopted an ecosystem approach applicable to the entire food web of the bears.126 The agreement holds the contracting Parties accountable for taking appropriate actions to protect the ecosystems of the bears.127 Another important feature of this agreement is that the Parties must prohibit the exportation, importation, and trafficking of polar bears within their territories.128 In response to the potential risk of extinction due to the impact of climate change, the Polar Bear Agreement has adjusted its management strategies. In 2009, topics on climate change appeared on the agenda of the first meeting in Tromsø, Norway, because polar bears and their living habitats are facing threats resulting from melting sea ice.129 The Arctic Marine Biodiversity Trends Report identified that the loss and fragmentation of habitat is the major concern for the conservation of polar bears.130 Needless to say, the effective implementation of conservation measures to protect polar bears requires joint efforts especially among neighboring states through cooperation.131 Reflected in the documents of the Meeting of the Parties, it is not satisfactory.132 The contracting Parties did agree to coordinate on national strategies to implement the conservation measures,133 but, these documents do not have legally binding effect, and the actual actions have to reply on the state parties. Apart from the major regional agreements discussed above, others applicable to the Arctic include the Convention on the Conservation of European

Norway (Svalbard), the United States, and the Soviet Union. This treaty was brought about due to the increased hunting of polar bears during the 1960s and 1970s which led to polar bears being under severe survival pressure from hunters. For discussions, see Rayfuse, supra note 48, 10. 126  Weidemann, supra note 29, p. 108. 127  Articles 1 and 2 of the Convention. 128  Article 5 of the Convention. 129  Barry, supra note 33, p. 13. 130  Ibid., p. 28. 131  Tedsen, supra note 12, p. 54. 132  Weidemann, supra note 29, pp. 107–108. 133  Meeting of the Parties to the 1973 Agreement in the Conservation of Polar Bears: Outcome of Meeting (Meeting Report, 17–19 March 2009), available at http://pbsg.npolar.no/ export/sites/pbsg/en/docs/Outcome_MOP2009.pdf.

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Wildlife and Natural Habitats (Bern Convention),134 the Convention for the Conservation of Salmon in the North Atlantic Ocean (NASCO),135 and the Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic (NAMMO Agreement).136 Their common theme is to take individual species as their direct concern and regard them as indispensable components of their ecosystems. In addition, a large number of bilateral or multilateral agreements exist between or among the Arctic States, such as the one among the governments of Iceland, Norway, and the Russian Federation Concerning Certain Aspects of Co-operation in the Area of Fisheries concluded in 1999 concerning fisheries in the Barents Sea “loophole” with a view to enhancing cooperation for fisheries.137 134  The Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention), signed 19 September 1979 and entered into force 1 June 1982, available at http://conventions.coe.int/Treaty/EN/Treaties/Html/104.htm.  The Bern Convention has 50 signatories with Denmark, Finland, Norway and Sweden consenting to be bound as Parties. The Convention aims at the conservation of wild flora and fauna and their natural habitats and at the promotion of European cooperation in this field. It places particular emphasis on the need to protect endangered natural habitats and endangered and vulnerable species, including migratory species. The Convention has three Appendices: Appendix I (plants); Appendix II (animals); and Appendix III (lists of animals not included in Appendix II). For discussions, see Loukacheva, et al. (eds.), Polar Law Textbook II. (Copenhagen, Nordic Council of Ministers, 2013), p. 114. 135  Convention for the Conservation of Salmon in the North Atlantic Ocean, signed 2 March 1982, 1338 U.N.T.S. 33. Entered into force 1 October 1983, available at http://www.nasco .int/convention.html.  The Convention currently has six signatories: Canada, Denmark (in respect of the Faroe Islands & Greenland), the European Union, Norway, the Russian Federation and the United States. It applies to all anadromous stocks that migrate beyond the areas of national jurisdiction of the coastal States of the North Atlantic throughout their migratory range. 136  The Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic, signed 9 April 1992 and entered into force 8 July 1992, available at http://www.nammco.no/webcronize/images/nammco/659.pdf. The Agreement has Iceland, Norway, Greenland and the Faroe Islands (Denmark) as parties with its primary focus on modern approaches to the study of the marine ecosystem as a whole, and gaining a better understanding of the role of marine mammals in this system. It provides a mechanism for cooperation on conservation and management for all species of cetaceans (whales and dolphins) and pinnipeds (seals and walruses) in the region. See N. Loukacheva, et al. (eds.), Polar Law Textbook II. (Copenhagen, Nordic Council of Ministers, 2013), p. 115. 137  It establishes principles and procedures for cooperation based on a precautionary approach and in accordance with international law. See Art. 1, www.eelink.net. For detailed discussion, see Loukacheva, supra note 11, p. 116.

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2.2.4 Regional Arrangements The alarming pace of sea-ice regression and the poleward shift of fish stocks have culminated in various calls for regulations to emerge for the increasingly exploited Arctic seas and oceans. As environmental impacts know no boundaries, the region has seen growing awareness and recognition of, and concern for, the urgent need to strengthen the rules to protect the precious resources and environment of the Arctic by collective action. This has led to the development of some intergovernmental initiatives by the Arctic Council and regional states. The Arctic Council takes the lead in this wave by broadening its mandate of cooperation to include “all common Arctic issues”, in particular “sustainable development and environmental protection”,138 apart from matters related to military security. The Arctic Council, as an entity, functions as a coordinated agency instead of a regulatory body.139 The Council’s instruments relating to the protection of Arctic marine biodiversity, including recommendations, guidelines and assessments, are not legally binding. The Conservation of Arctic Flora and Fauna (CAFF) working group under the Arctic Council serves as a vehicle to share information and develop common responses on issues caused by human activities that threaten Arctic marine biodiversity.140 Nevertheless, the CAFF cannot issue mandatory instruments on the above issues; its work focuses mainly on facilitating cooperation among Arctic States and implementing the responsibility of each state.141 The CAFF responded to an earlier recommendation to implement the Circumpolar Biodiversity Monitoring Program.142 This program was endorsed by the 2005 Arctic Climate Impact Assessment (ACIA) which recommended that long-term Arctic biodiversity monitoring be expanded and enhanced.143

138  The Arctic Council was established through the Ottawa Declaration in September 1996 as a high-level intergovernmental forum addressing issues faced by the Arctic governments and indigenous people. See Ottawa Declaration on the Establishment of the Arctic Council, 19 Sept 1996, 35 I.L.M. 1382, available at http://library.arcticportal.org/1270/. For more on the Arctic Council, see http://www.arctic-council.org/index.php/en/about-us/ arctic-council/about-arctic-council. 139  Weidemann, supra note 29, p. 49. 140  Loukacheva, supra note 11, p. 96. 141  A backgrounder, the Arctic Council, available at http://www.arctic-council.org/index .php/en/resources/news-and-press/press-room/854-the-arctic-council-a-backgrounder. 142  Paragraph 10(a) of Policy Recommendations on the Arctic Biodiversity Assessment, available at http://arcticbiodiversity.is/the-report/report-for-policy-makers/policyrecommendations. 143  Hassol, supra note 5, p. 122.

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Since 2011, the Arctic Council has produced legally binding agreements including the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (SAR Agreement)144 and the Agreement on the Prevention of Marine Oil Pollution and Response in the Arctic (MOPPR Agreement).145 Their binding force originated in existing and valid international documents, including bilateral and multilateral agreements, to which all Arctic States are Party. Notably, the two agreements carry significantly more value than simply reproducing the existing contents.146 Both aim to increase the cooperation capacity of the Arctic Council. Without a permanent secretariat, the Arctic Council is heavily influenced by the priorities of the rotating chairman.147 To remedy the situation, the Council members reached a consensus in 2011 to establish an institutional administrative team to support its work.148 While it may not happen for a while, the Arctic Council is becoming a “fully-fledged international organization.”149 This may be indicative by the fact that the Council is in the process of transforming its functions by using “hard-law” instruments and seeking enforcement through a permanent secretariat.150 The Arctic States are also urged to stand together on the Council’s platform to deal with their common threats. In the face of a lack of regulations for potential access to the Arctic Ocean fisheries, the United States and the EU respectively called for international cooperation via the Senate Joint Resolution No. 17 of 2007151 and the 2009 EU 144  Aeronautical and Maritime Search and Rescue in the Arctic (Apr. 21,2011), available at http://www.arctic-council.org/index.php/en/document-archive/category/20-maindocuments-from-nuuk. 145  Arctic Council, Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (May 15, 2013), available at http://www.arctic-council.org/index.php/ en/document-archive/category/425-main-documents-from-kiruna-ministerial-meeting. 146  Loukacheva, supra note 11, p. 59. 147   T. Koivurova, ‘Implementing Guidelines for Environmental Impact Assessment in the Arctic’, in: C.J. Bastmeijer and T. Koivurova (eds.), Legal Aspects of Sustainable Development: Theory and Practice of Transboundary Environmental Impact Assessment (Leiden, Martinus Nijhoff, 2008), pp. 151–173. 148  Senior Arctic Officials (SAO) Report to Ministers, Nuuk, Greenland, May 2011, 48, available at http://library.arcticportal.org/1251/1/SAO_Report_to_Ministers_-_Nuuk_Ministerial_ Meeting_May_2011.pdf. 149  Loukacheva, supra note 11, p. 28. 150  Senior Arctic Officials (SAO) Report to Ministers, Nuuk, Greenland, May 2011, 48, available at http://library.arcticportal.org/1251/1/SAO_Report_to_Ministers_-_Nuuk_Ministerial_ Meeting_May_2011.pdf. 151  S.J.Res. 17 2007, available at https://www.congress.gov/bill/110th-congress/senate-jointresolution/17/text.

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Proposal for the UNGA.152 Subsequently, the Arctic States began developing this regulation in 2010. The political process led to three meetings of senior officials (June 2010, Oslo; April-May 2013, Washington, D.C.; and February 2014, Nuuk) and three meetings of scientific experts (June 2011, Anchorage; October 2013, Tromsø; and April 2015, Seattle).153 The Chairman’s Statement of the Nuuk Meeting in 2014 includes two main elements: scientific matters and interim measures.154 With respect to scientific matters, the Statement calls for “advance scientific understanding of living marine resources and their ecosystem in the Arctic Ocean”, and proposes to “establish a joint program of scientific research”, which was also reiterated at the third meeting in Seattle.155 The Statement suggests adopting interim measures to deter unregulated fishing on the high seas area of the central Arctic Ocean. A major aspect of the interim measure is that it commits States to “authorise their vessels to conduct commercial fishing” in the Central Arctic Ocean “only pursuant to one or more regional or subregional fisheries management organisations or arrangements that are or may be established to manage such fishing in accordance with modern international standards.”156 However, it should be noted that the interim measure does not amount to a ban or moratorium on fishing, but only to restrict unregulated fishing.157 This has resulted in divided views among the five Arctic States as to long-term objectives; the United States prefers a more positive conservation approach while Norway and Russia are 152  Joint staff working document, available at http://eeas.europa.eu/arctic_region/docs/ swd_2012_182.pdf. 153  Outcomes of the three senior officials meetings respectively: Chair’s summary, Meeting on Arctic Fisheries, Oslo, Norway, June 2010, available at https://www.regjeringen.no/globalassets/upload/UD/Vedlegg/Folkerett/chair_summary100622.pdf. Chairman’s Statement. Meeting on Future Arctic Fisheries, Washington, DC, May 1 2013 US Department of State, available at http://www.state.gov/e/oes/rls/pr/2013/209176.htm. Chairman’s statement. Meeting on Arctic Fisheries. Nuuk, Greenland, 24–26 February 2014, supra note 114. Outcomes of three scientific experts meetings respectively: A5 Report, Meeting of Scientific Experts on Fish Stocks in the Arctic Ocean, Anchorage, Alaska, June 15–17 June 2011; Report of 2nd Scientific Meeting on Arctic Fish Stocks, Tromsø, Norwary, 28–31 October 2013, available at https://web.sfos.uaf.edu/wordpress/arcticeis/?page_id=1636. Report of 3rd Meeting of Scientific Experts on Fish Stocks in the Central Arctic Ocean, Seattle, USA, 2 November 2013, available at http://www.afsc.noaa.gov/Arctic_fish_stocks_third_meeting/default.htm. 154  Ibid. 155  “[T]o develop a framework for a joint program of scientific research and monitoring for CAO, consider the development of an action plan, and to promote cooperation with international organizations”. See the Chairman’s Statement of the Nuuk Meeting, ibid. 156  Ibid. 157  Loukacheva, supra note 25, p. 87.

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less inclined to consider unique conservation arrangements.158 After Russia announced its consent to sign the fishing agreement, the five Arctic States took a further step by signing the Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean (the Oslo Declaration).159 It should be noted, however, the Oslo Declaration was signed not at the ministerial level as expected in the Nuuk Chairman’s Statement. 2.3 Gaps of the Existing Regimes The warming Arctic combined with increasing human activities have revealed extensive impacts on flora, fauna, and habitats, and heightened the need to evaluate the effectiveness and adequacy of the legal instruments to make subsequent adjustments to the changing circumstances. The unprecedented changing pace in the Arctic makes it difficult to claim the current regime as adequate for responding to the huge challenges. From the analysis above, it is apparent that the existing legal frameworks are inadequate to deal with the changes and uncertainties caused by climate change. Overall, the structure of regulatory frameworks applicable to the Arctic are not integrated, ecosystem based, or cross-sector managed, but are loosely coordinated, and lacking full participation by the states. A highlighted phenomenon is that these frameworks are highly fragmented, sectoral in approach, and do not address the most critical issues facing the region. Specifically, they suffer from a fragmentation of legal regulations, lack of effective enforcement, absence of an overall policy-setting process, deficiency of participation, gaps in geographic scope and insufficient implementation. At an international level, the framework conventions with Arctic implications, especially the UNCLOS, CBD, and UNFSA, remain the principal instruments for fundamental rules addressing conservation matters related to the Arctic. However, their broadly constructed obligations are too weak to be enforced, and are unable to provide instructive guidance for the rapidly changing Arctic. The distinctive environment and the vulnerability of the regional biological resources are largely trans-boundary and cross-sectoral, and a ­science and ecosystem-based management regime is not ensured. The effec158  Wegge, Njord. 2015. ‘The Emerging Politics of the Arctic Ocean. Future Management of the Living Marine Resources’, Marine Policy 51 (January), 335. 159  After the meeting between Secretary of State John Kerry and President Vladimir V. Putin in the Black Sea resort of Sochi, Russia announced its consent to sign the fishing agreement. For details: http://www.nytimes.com/2015/05/20/world/russia-and-us-findcommon-cause-in-arctic-pact.html?_r=2. Arctic Nations Sign Declaration to Prevent Unregulated Fishing in the Central Arctic Ocean, available at http://www.state.gov/r/pa/ prs/ps/2015/07/244969.htm.

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tive protection of these resources requires systematic consideration of unique factors that are not easily approached from outside the Arctic. Likewise, the regional agreements and arrangements with an Arctic focus suffer from their own weaknesses such as a sectoral approach, lack of consistency, and limited obligations for contracting parties only on specific issues. In general, they have not been effective in coordinating appropriate institutionalized management measures leading to multilateral governance. The regional agreements either have restricted competence to implement conservation measures or face the challenge of transforming the obligations into practical legal terms to avoid potential friction of overlapped coverage between individual treaties. The regime for the conservation of living marine resources or specific species mostly depends on the designation of protected areas at the will of the states, and states do not have enough political will to establish an MPA network in ABNJ. With regard to fisheries management beyond national jurisdiction, the main problem lies in the incomplete high seas coverage by RFMOs, which are assigned a crucial role in fisheries management, particularly for straddling and HMS.160 However, large parts of the region do not fall under the spatial scope of any competent organization. In some cases, fisheries may only be managed over a single species or a single group of species. The recent development of the two agreements under the Arctic Council and the Oslo Declaration may signal a positive sign, but the latter one is still far from being called an international agreement, as it is only binding for the five States, and too early to assess their potential towards the establishment of a coherent and ecosystem-based mechanism. To improve the effectiveness of the legal regime, the recommendations may have to address not only the existing policy gaps, but also practical considerations about the region’s particular requirements and environmental conditions. Cooperative initiatives need to strengthen the connection among the Arctic States and between the Arctic and non-Arctic States. The stimulation of the political will and capacity building of the individual Arctic States may also need to be promoted, as they can be the most crucial elements in improving management performance. 3

An Adaptive Approach to the Changing Arctic

Facing the challenges of uncertain patterns of impact on Arctic marine ecosystems, it is important to implement an adaptive approach, taking into 160  See paras. 5(2)(a) and (b), FSA. Supra note 58.

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c­ onsideration the practical situation and particular environmental conditions. The adaptive approach may start from the possible integration of the existing legal frameworks, and pave the way towards a new agreement to integrate the management practice and cross-sectoral factors, and incorporate precautionary principles and an ecosystem approach. The ultimate goal is to provide a sound legal basis and effective operational mechanisms for the protection of the Arctic marine ecosystems. 3.1 Applying the Precautionary Principle and Ecosystem Approach The precautionary principle first emerged in the 1980s161 and has quickly established itself as an international legal principle that is gaining increasing support as part of the international law of the environment.162 It underlies modern environmental policymaking, and derives its importance from the fact that in some cases science will never be able to make accurate long-term predictions about the consequences of human activities on the environment. This point is reflected in Principle 15 of the Rio Declaration on Environment and Development, adopted in 1992 by the UN Conference on Environment and Development (UNCED).163 One of its central implications is a futureoriented risk management approach according to different sectors and situations and taking account of the system complexity of activities in advance. Thus, this feature is extremely relevant to the Arctic when the region faces scientific uncertainty about the negative impact of climate change. Environmentally sensitive activities should be avoided and precautionary measures taken with risk assessment methods. Another important aspect to the Arctic is its less demanding implementation. In practice, the precautionary principle does not dictate specific regulatory measures. It is actually flexible and interrelates with other principles and concerns to cover a wide range of possible obligations and actions. In this sense, it is tailored to the Arctic where the nature of the marine ecosystem 161  Barry, supra note 33, p. 98. 162  There is not a uniform or authoritative definition or interpretation of the principle, nor is it possible to identify appropriate or even necessary measures with universal validity. For a systematic view on this, see Meinhard Schröder, “Precautionary Approach/Principle,” Max Planck Encyclopedia of Public International Law, 2014, available at http://opil.ouplaw .com. 163  It says that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” See Stockholm Declaration, 1972 available at http://www .unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1503. Rio Declaration, 1992, available at http://www.unep.org/Documents.Multilingual/Default .asp?documentid=78&articleid=1163.

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and its biodiversity is relatively pristine and irreversible compared to other regions due to unique and extreme circumstances. In addition to the uncertain impact of climate change, any major disruption would likely result in the collapse of the whole ecosystem.164 The Arctic region is currently covered with ice for large parts of the year and thus has not yet been subject to the overexploitation of natural resources and deterioration of the environment.165 Arguably, if states do not consider the potential risks in advance, there would be a “tragedy of the commons” scenario along with other unpredictable disasters.166 The adaptive approach for the protection of the Arctic marine ecosystem and its biodiversity could benefit from the CCAMLR experience, which adopted a reference for the precautionary approach within the integrated framework. Although the Arctic region already has regional agreements, like the OSPAR and NEAFC conventions,167 the explicit stipulation of the precautionary approach within their provisions are limited to certain species instead of the whole marine Arctic.168 Thus, the precautionary principle or approach should be adopted in the regional framework to guide the conservation efforts for Arctic marine ecosystems. An equally important tool is the ecosystem-based approach with its requirement to provide protection throughout an entire ecosystem instead of an individual species. The broad spatial scope of the Arctic marine area implies that it includes a wide range of different ecosystems and biological diversity. The complexity of Arctic marine ecosystems and the limitations and shortcomings of science would require such a regime to take the interaction and interdependence between species and their living environment into account within and among natural systems to improve its effectiveness.169 The traditional sectoral approach in the Arctic could still be applied to environmental protection, but it is necessary to adopt a broader approach at different stages of decision-making.170 Given the fact that the exploitation of living Arctic resources will not be possible to prohibit, it is necessary to identify and take action on critical threats to the health of the marine ecosystems. The Arctic has a sensitive environment where the impact of activities needs to 164  Weidemann, supra note 29, p. 130. 165  Weidemann, supra note 29, p. 195. 166  O.S. Stokke, ‘The Loophole of the Barents Sea Fisheries Regime’, in Governing High Seas Fisheries: The Interplay of Global and Regional Regimes. (Oxford/New York, Oxford University Press, 2001), pp. 273–301. 167  Article 4 of the NEAFC Convention. 168  B.A. Malloy, ‘On Thin Ice: How a Binding Treaty Regime Can Save the Arctic’, 16 Hastings West-Northwest Journal of Environmental Law and Policy, 2010, 490. 169  Weidemann, supra note 29, p. 119. 170  Henriksen, supra note 64, p. 262.

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be fully understood, and the region’s particular requirements and environmental conditions carefully considered. 3.2 Adopting an Integrated Agreement To achieve comprehensive and integrated management, the operational practice of existing legal instruments and the available scientific knowledge on the Arctic ecosystem and its dynamics need to be adopted based on mandatory cooperation of the states through an agreement. The agreement would require an integrated, coherent approach that incorporates a range of elements. Possible models for consideration include: a similar model to the Antarctic Treaty System (ATS), a model as an implementing agreement of UNCLOS, or a model of a regional sui generis agreement consisting of a framework treaty and a number of annexes or protocols, where appropriate.171 Comparatively speaking, an implementing agreement or a region-specific agreement may be more feasible to achieve. The former may gain support from UNCLOS, and the latter covers only part of the Arctic issues with more flexibility, and may experience less objection. It may be easier to reach a consensus on key issues of the regional framework treaty while leaving technical details or certain activities for annexes or protocols. The regional sui generis agreement might, however, open a vital path for an integrated, ecosystem based management in the marine Arctic.172 Views are divided on the scope of such an agreement. One option suggested is a “sweeping” method to regulate “all aspects of protection of the marine environment from the deleterious effects of all human activities”.173 Others take a more cautious approach and suggest regulation over part of the marine Arctic areas beyond national jurisdiction.174 However, when dealing with marine ecosystems that go beyond national boundaries, “a strictly limited regional approach” may not be a sound solution.175 To avoid trans-boundary issues and fragmentation of the sectoral approach, the new agreement should be Pan-Arctic in order to have its geographical scope based on the ecosystem range. Needless to say, this may trigger potential conflicts among coastal States 171  Jacqueline McGlade, “The Arctic Environment–Why Europe should care,” Speech by Professor Jacqueline McGlade at Arctic Frontiers Conference, Tromsø, 23 January 2007. 172  De la Fayette, Louise Angelique, ‘Oceans Governance in the Arctic’, 23 International Journal of Marine and Coastal Law, 2008, 564. 173  Ibid., 12. 174  Weidemann, supra note 29, p. 118. 175  Weidemann, supra note 29, p. 220.

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regarding sensitive jurisdictional issues, such as sovereign rights over the extended continental shelf, freedom of scientific research conferred to all state parties on the high seas, etc.176 The states parties can be advised that delimitation of the applicable areas under the new agreement would be restricted exclusively to protection purposes, and would not affect the position of any state’s sovereign rights.177 As a new comprehensive legal regime to protect the Arctic marine ecosystems crosses boundaries, a solid foundation needs to be built upon the enhancement of management and cooperative obligations envisaged in the existing global frameworks such as UNCLOS, the FSA, and the CBD. UNCLOS Part XII, regulating the protection and preservation of marine environment, is “designed to operate as an ‘umbrella’ for further global, regional and national actions”.178 Certain thorny issues may be negotiated in annexes or protocols to allow flexibility for the dynamic feature of marine ecosystems and associated biodiversity.179 In fact, the existing precedents are readily available, such as the SAR Agreement and the MOPPR Agreement, dealing with Arctic issues applicable to the entire Arctic. Especially the MOPPR Agreement clearly specifies its applicable areas going beyond national jurisdiction.180 Considering recent developments under the Arctic Council, an Operational Guideline could provide an operational supplement to the new agreement to strengthen the coordination among the Arctic States and facilitate its implementation. An important part of the guidelines would be to establish regimes on information sharing to provide a consistent and integrated basis for the protection of Arctic marine ecosystems. The CAFF has a role to play in the “circumpolar cooperation” related to scientific work and data gathering,181 and it could also join in this operation to facilitate the implementation of binding measures for the new agreement. The Arctic Council does not have the mandate formally to regulate human activities in the Arctic, but it is getting more active in adopting policies to facilitate the negotiation of binding treaties.182 The Arctic Council is also seen 176  Rayfuse, supra note 48, p. 213. 177  Loukacheva, supra note 11, p. 60. 178  Weidemann, supra note 29, p. 108. 179  Henriksen, supra note 64, p. 252. 180  See L. Trigatti, B.O. Kristian and M. Everett, ‘Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic’, 2014 International Oil Spill Conference Proceedings, No. 1, May 2014, 1487. 181  Policy Recommendations, supra note 142. 182  Tedsen, supra note 12, p. 62.

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as shifting towards a decision-maker direction rather than just a “negotiating forum”. More importantly, because it was made by a consensus of all Arctic States, it can have a crucial role in paving the way for the adoption of a new agreement and its subsequent legal documents. 4 Conclusions The Arctic plays an important role in mitigating climate change, and a warming climate in this region is projected to set off many unpredictable environmental challenges. These will emerge as far reaching and significant stresses on the Arctic ecosystem and biodiversity. Complex interactions between climate change-induced melting sea ice, increased runoff, and an eventual rise in sea level as well as human effects from fisheries, shipping, industrial development, and offshore installations, have the potential to magnify the impacts on habitat, biodiversity, and ecosystems—all with immense implications. The melting of the Arctic sea ice will make energy resources and waterways more accessible. Various factors, such as the presence of large reserves of oil, gas and minerals deposits within the Arctic, new commercial trans-Arctic shipping routes, and military infrastructure not only generate disputes among Arctic States, but also trigger conflicts among user States. The region will have to deal with a whole set of environmental threats associated with political, economic, and even military dimensions. This situation—unlikely to improve in the years to come—will challenge the regional landscape in many ways. The Arctic environment and its fragile ecosystems are increasingly threatened. The unique ecosystem and distinctive biodiversity is particularly sensitive to changes caused by temperature rise and human threats. The serious concerns relating to the Arctic environment and ecosystem require special attention. At this stage, science has not assessed precisely the scales and rates of the changes and risks brought about by climate change, but it is apparent that biological diversity is under threat of significant reduction or loss. The lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize the threat. More importantly, the threat presenting the Arctic is not a regional issue, but a global one. Preserving the environmental health of the Arctic is important for the entire planet. Concerted efforts are needed to deal with this unprecedented challenge. The issue being assessed is whether an adaptive approach to the changing Arctic may be achieved within the existing legal framework and institutional structures. It is evident that it is necessary to act boldly and decisively in the

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face of a common threat. Robust efforts should be directed to conservation measures and incentives by regulating access to natural resources and actively promoting the highest standards with regard to environmental safety in this vulnerable ecosystem. A major future challenge for Arctic environmental concerns is the allocation of resource exploitation. Legal arrangements have to ensure every step of the resource usage, in relation to any offshore oil and gas operation. Each step should be conducted in a way and at a rate that does not lead to the long-term decline of biological diversity on the basis of ensuring the environmental protection of the Arctic ecosystem, taking into account the risk of major accidents and the need for effective response. In the Arctic, there exists a range of legal frameworks at the global level related to resource conservation and environmental protection that is applicable to the region. Similarly, the Arctic States have endeavored to join or adopt a considerable number of bilateral and multilateral agreements and arrangements, legally binding or non-binding, governing specific issues concerning parts of the Arctic. However, critical gaps exist due to their highly fragmented and sectoral approach, and they do not address the emerging threat. UNCLOS and other global framework conventions set up sectoral machinery, and the OSPAR strategies and other regional commitments and obligations are partial measures and questionable as to whether they are mutually consistent. The national structures and management of human activities are inherently sectoral, and suffer from insufficient and ineffective enforcement and implementation. Given the fact that the Arctic is one environment, an adaptive approach to the changing Arctic must include how to integrate the existing regimes and overcome their weaknesses. In light of the distinctive biodiversity and irreversible ecosystem in the Arctic, considering the efforts and experiences in implementing global frameworks as well as recent development of the Arctic Council taking a more active role to protect the Arctic environment, the creation of a cross-region agreement to integrate other policies is necessary, and feasible. Such an agreement might consist of a framework treaty and a number of annexes or protocols with an Operative Guideline. The agreement needs to incorporate the precautionary principle and ecosystem approach in its legal regimes, with reference points for key biological indicators, including threatened and declining species and habitats. The agreement also needs to specify its rationale, context and objectives for an international cooperative framework. Regardless of its format and relevant details, the agreement has to place the protection of the Arctic marine ecosystem and biodiversity on a firm and integrated legal footing.

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It is desirable for the states concerned to take prompt action, as it is often easier to gather the political will to conclude an agreement before competing interests arise and public opinion is engaged. Given the current worrisome situation, the leaders of the Arctic States need to lift environmental issues to the top of the political agenda with determination and a long-term perspective, and spare no effort in protecting this vital ecosystem to achieve a healthy and sustainable environment for generations to come.

CHAPTER 16

Arctic Governance: Reflections on the Evolving Tableau of EU Law and Policy Measures Ronán Long* Abstract The European Union (EU) is very much committed to promoting an international system based upon multilateral cooperation and good global governance including the resolution of disputes by peaceful means. The duty to cooperate will thus form a central strand in the proposed EU’s (revised) Arctic policy, which the European institutions are scheduled to adopt in 2015. This is not a new development on the EU’s political landscape in that the nascent policy has been maturing steadily since 2008 and has its origins in a number of soft law publications and instruments emanating from the European Commission, the Council and the European Parliament. All of these bodies are calling for greater EU engagement on vital Arctic issues in light of the regions environmental, strategic and economic importance to Europe, and with a view to advancing the rule of law as codified in the 1982 United Nations Convention on the Law of the Sea (the LOSC) and related international agreements. Most noticeably, all of the European institutions are unequivocal in their agreement that the LOSC will continue to remain the fundamental cornerstone underpinning EU policy and regulatory initiatives pertaining to the Arctic. In order to shed some light on recent developments in this regard, this paper reviews the genesis of the EU’s Arctic policy, progress and impediments regarding its effective implementation, as well as some recent decisions of the Court of Justice of the European Union and the World Trade Organization’s Appellate Body. The paper concludes by outlining several law and policy considerations that will shape the EU’s approach to Arctic affairs and governance over the coming decades.

The Arctic is a unique and vulnerable region located in the immediate vicinity of Europe. Its evolution will have significant repercussions on the lives of Europeans for generations to come. Enhancing the European Union’s

* Ronán Long holds the Jean Monnet Chair of European Law and a Personal Professorship at the School of Law, National University of Ireland Galway. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/bergen-long.pdf.

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contribution to Arctic cooperation will open new perspectives in our relations with the Arctic States. The EU is ready to work with them to increase stability, to enhance Arctic multilateral governance through the existing legal frameworks as well as to keep the right balance between the priority goal of preserving the environment and the need for sustainable use of natural resources including hydrocarbons. Commissioner Benita Ferrero-Waldner1

1 Introduction European Union (EU) involvement in Arctic affairs has evolved in a relatively fragmented and sporadic fashion since the European Commissioner for External Relations delivered the above statement in 2008. Since then, EU policy has evolved in line with greater international awareness of the importance of the Arctic Ocean from the perspectives of the Law of the Sea, natural resources and environmental law.2 Moreover, with the benefit of hindsight, it is relatively easy to discern some of the precise trigger points for EU policy and regulatory intervention on circumpolar matters. In some instances, the European institutions appear to respond to events in the Arctic with a view to safeguarding the interests of the global community including EU Member States in general and the EU Nordic States in particular. The European Parliament, for example, took a proactive interest in Arctic issues in response to the Russian Federation planting its flag on the seabed of the North Pole in August 2007.3 Although this event had no legal significance in the context of Russia’s extended

1  Press statement, Commissioner Benita Ferrero-Waldner, External Relations and European Neighbourhood Policy, Brussels, 20 November 2008. 2  See, inter alia, M. Byers, International Law and the Arctic (Cambridge: Cambridge University Press, 2013) 10–27; K. Scott, D. Vanderzwaag, “Polar Oceans and Law of the Sea” in D. Rothwell, A. Oude Elferink, K. Scott, and T. Stephens, The Oxford Handbook on the Law of the Sea (Oxford: Oxford University Press, 2015); A. Maurer, S. Steinicke, A. Engel, S. Mnich, L. Oberländer, “The EU as an Arctic Actor? Interests and Governance Challenges”, Report on the 3rd Annual Geopolitics in the High North—GeoNor—Conference and joint GeoNor Workshops, Berlin, 22–24 May 2012; A. Oude Elferink, E. Molenaar and D. Rothwell, The Law of the Sea and Polar Regions: Interaction between Global and Regional Regimes (Leiden/ Boston: Martinus Nijhoff, 2013). 3  Para. C of the European Parliament resolution of 9 October 2008 on Arctic governance, RC\746034EN.doc, 6.10.2008. Available at: http://www.europarl.europa.eu.

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continental shelf claims,4 there is little doubt, nonetheless, that it struck a political chord within the European institutions regarding the importance of the EU’s neighbourhood policy in the Nordic regions.5 Since then, the geopolitical and strategic importance of the Arctic has become increasingly manifest in the EU as more information becomes available about the effects of climate change, as well as growing cognizance of the prospects for further economic growth within the region including access to fishery resources and new transpolar routes for maritime transport. In response to these developments, the supranational European institutions have sought to increase their influence in regional affairs through the rolling-out of a distinctive Arctic policy. In accordance with standard EU practice and procedure, the nascent policy has its origins in a number of soft law publications emanating from the European Commission, the Foreign Affairs Council and the European Parliament.6 All of these bodies are calling for greater EU engagement on vital Arctic issues with a view to advancing the rule of law as codified by the 1982 United Nations Convention on the Law of the Sea (the LOSC) and other international agreements.7 Most noticeably, the European institutions have stressed that the LOSC provides the fundamental framework for the orderly regulation of maritime affairs within the region including access to resources, the upholding of navigation freedoms, along with the preservation and protection of the fragile Arctic environment.8 To shed some light on these developments, the chapter provides some background information on the rapidly evolving EU Arctic policy, the rationale 4  Article 76, UNCLOS. On the initial Russian submissions to the Commission on the Limits of the Continental Shelf see CLCS/3/Rev.3 and Corr.1. Available at: http://www.un.org/depts/ los/clcs_new/documents/CLCS_3r3.htm. Russia is expected to make a new submission in relation to the Arctic in 2015. 5  On this policy see, Joint Consultation Paper, Towards a New European Neighbourhood Policy, JOIN (2015) 6, Brussels, 4.3.2015. 6  See Table 1 infra. On Arctic governance, see L. De La Fayette, “Oceans Governance in the Arctic” 23 (3)(2008) International Journal of Marine and Coastal Law 531–566; T. Koivurova, E. Molenaar, D. VanderZwaag “Canada, the EU, and Arctic Ocean Governance. A tangled and shifting seascape and future directions in Understanding and strengthening European Union-Canadian relations in law of the sea and ocean governance”, 18(2) (2009) Journal of Transnational Law & Policy. 7  See JOIN (2012) 19 final pp. 10–13 and 17–18. United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994, 1833 UNTS 397. 8  Article 306 and Article 3 of Annex IX of the LOSC provide for the participation of international organizations. Achieved internally within the EU by Council Decision 98/392 of 23 March 1998, OJ L 179/1, 23 June 1998.

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underpinning the EU’s strategic approach to regional affairs, and contemporary developments on the landscape of EU law including the case law from the European Court of Justice pertaining to trade in seal products. In this discussion, additional emphasis is placed on the reformed EU’s common fisheries policy (CFP) and the EU’s environmental policies. The latter aspect of the paper refers to some of the results of the SOCIOEC project, which examined the emerging fisheries and ocean governance management measures adopted by the EU to reverse the decline in fish stocks and to ensure greater ocean stewardship.9 2

Genesis of a Unique Relationship

The relative newness of the EU’s interest in formulating and implementing a distinctive Arctic policy is partly explained by the historical development of the Union. As is well known, there were no Arctic States among the six States who founded the European Economic Community (EEC) in 1957.10 Obviously, this also explains why the European treaties do not have specific provisions on the Polar region.11 That said, in more recent times, the EU’s approach to Arctic related matters is shaped by geographical, social, economic, political and environmental considerations. Moreover, the EU has forged a unique relationship with the region through its Nordic Member States and their self-governing territories, as well as pursuant to multilateral and bilateral agreements with third countries. In this context it is important to keep in mind that Sweden and Finland are EU Member States since 1995. They are also members of the Arctic Council and thus form a strong nexus between the EU and the Arctic region. The position of another Arctic Council member, Denmark, along with the Faroe Islands and Greenland, is more complex and merits further consideration here, as does the EU’s close diplomatic and trade ties with Norway and Iceland.

9  SOCIOEC FP7-KBBE-2011–5 Project No: 289192. Additional information: www.socioec. eu. See also, Long, “Stakeholder Participation in the European Common Fisheries Policy: Shifting the Legal Paradigm Towards Rights and Responsibilities” in H. Scheiber, C. Espósito, J. Kraska (eds.), Ocean Law And Policy: Twenty Years Of Development Under The UNCLOS Regime (Leiden/Boston: Nijhoff, 2015), 45 pp. 10  France, Italy, Belgium, Netherlands, Luxembourg, and West Germany. 11  Consolidated Versions of the Treaty on the European Union and the Treaty on the Functioning of the European Union, OJ C 83/1, 30.03.2010.

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2.1 Denmark, Greenland and the Faroe Islands The unique relationship between the EU and the Arctic region may be traced back to the first enlargement of the EEC and the European Atomic Energy Community with the accession of Denmark in 1973.12 Moreover, the Arctic affiliation is linked directly with the interests of Greenland and the Faroe Islands, who have extensive self-government powers under the Danish Constitution and pursuant to a number of instruments adopted thereunder. After accession to the EEC, Denmark continued to update these arrangements but retained legal competence in relation to external affairs, defence and constitutional matters.13 The constitutional division of powers in Denmark and the EU’s approach to Arctic affairs is further complicated by virtue of the fact that Greenland withdrew from the EEC in the 1980s, largely as a result of public misgivings about the application of the European common fisheries policy.14 More specifically, 52% of the public in Greenland voted for the self-governing territory to leave the EEC in 1982, a decision that was subsequently given effect by the Treaty of Withdrawal in 1985.15 Greenland’s departure from the EEC did not affect Denmark’s membership but it did reduce the geographical application of the treaties to the Arctic. Since then, Greenland has the same status under the EU treaties that is applicable to the Overseas Countries and Territories (OCT) associated with the Union.16 An important aspect of this association is set out in Protocol 34 of the European treaties, which establishes a legal basis for the special arrangement between the EU and Greenland, whereby the latter has 12  Treaty concerning the Accession of the Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom to the EEC and the EAEC, done at Brussels, 22.01.1972. 13  Recent arrangements are set out in a number of instruments including: Takeover Act on Power of Matters and Fields of Responsibility; the Act on Faroes Foreign Policy Powers of 2005; and the Faroe Islands and the Greenland Self-Government Act of 2009. 14  Status of Greenland. Commission Opinion. Commission Communication presented to the Council on 2 February 1983. COM (83) 66 final, 22 February 1983. Bulletin of the European Communities, Supplement 1/83. For academic commentary, see, inter alia: F. Harhoff, “Greenland’s Withdrawal from the EC” [1983] 20(13) Common Market Law Review 13. For a discussion of the rationale underpinning a negotiated departure by Greenland, see, M. Happold, “Independence: In or Out of Europe? An Independent Scotland and the EU” [2000] 49 ICLQ 15, 32. 15  Treaty amending, with regard to Greenland, the Treaties establishing the European Communities OJ L 29, 1 February 1985. 16  Part IV of the Treaty on the Functioning of the European Union. Saint Barthélemy is only the second Member State territory to have departed from the EU/EC/EEC as of 1 January 2012.

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unrestricted and duty free access to the Union market for its fisheries products on the basis of granting the former access to Greenland waters under a fisheries agreement.17 The more specific fisheries obligations are set out in the Fisheries Partnership Agreement, which is updated from time to time and remains a key feature of the bilateral relationship.18 In addition, a Council Decision addresses the rules pertaining to “relations between the EU on the one hand, and Greenland and Denmark on the other”.19 Vitally, this instrument “acknowledges the geostrategic position of Greenland in the Arctic Region, the issues of exploration and exploitation of natural resources, including raw materials”, and includes a commitment to ensure enhanced cooperation and policy dialogue on those issues.20 Under the 2009 Act of Greenland Self-Government, the natural resources of Greenland appertain to the people of Greenland. In 2004, the European Commission and Greenland concluded a programme for the sustainable development of Greenland for the period 2014–2020.21 Subsequently in 2015, the European Commission, the Greenlandic Premier and the Danish Prime Minister, concluded an updated Joint Declaration setting out in further detail the political framework for building the relationships between the parties on issues of common concern including the Arctic.22 Again the 2015 Joint Declaration acknowledges the geostrategic position of Greenland in the Arctic region. The constitutional history of the Faroe Islands differs from Greenland and there is dissimilarity in its legal relationship with the EU.23 In some ways, this may partly explain why the policy position of the EU in relation to the role of the Faroe Islands in Arctic affairs does not appear to be fully articulated in the various documents and communications emanating from the European institutions (see Table 16.1 below). That said, the non-applicability of the European 17  Protocol (No 34) on special arrangements for Greenland. OJ C C 83/320, 30.03.2010. 18  Council Regulation (EC) No 753/2007 of 28 June 2007 on the conclusion of the Fisheries Partnership Agreement between the European Community on the one hand, and the Government of Denmark and the Home Rule Government of Greenland. 19  Council Decision 2014/137/EU of 14 March 2014 on relations between the European Union on the one hand, and Greenland and the Kingdom of Denmark on the other, OJ L 76, 15.03.2014. 20  Article 1 ibid. 21   Copy available at: https://ec.europa.eu/europeaid/sites/devco/files/signed_programming_document_for_sustainable_development_of_greenland_2014-2020_colour.pdf. 22  19 March 2015. Available at: http://ec.europa.eu/europeaid/sites/devco/files/signed-jointdeclaration-eu-greenland-denmark_en.pdf. 23  On sovereignty and self-determination, see J. Jensen, “Faroe Islands”, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Online edition updated December 2007.

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European Institution

Instrument

2008

European Commission

2009 2011 2012

Council European Parliament European Commission

Communication on the European Union and the Arctic Region Council Arctic Conclusions Resolution on sustainable EU policy i. Space and the Arctic ii. The inventory of activities in the framework of developing an EU Arctic Policy iii. 2012 Joint Communication: Developing an EU Policy towards the Arctic Region: progress since 2008 and next steps Council conclusions on developing a European Union Policy towards the Arctic Region Resolution on the EU strategy for the Arctic Communication on Arctic policy

Council

2014

Council

European Parliament 201524 European Commission

treaties to the Faroe Islands means that the self-governing archipelago remains outside of the EU and does not constitute an archipelagic State under the LOS Convention.25 Similar to Greenland, however, the relationship between the EU and the Faroe Islands has been particularly problematic in relation to the management and conservation of fisheries.26 As a matter of practice, this aspect of the relationship is conducted on the basis of a bilateral fisheries partnership agreement.27 This in turn became the subject of a protracted dispute between the EU and Faroe Islands in relation to the allocation of entitlements in relation to Atlantic-Scandic herring and mackerel during the period 2013–2014.28 After intensive efforts on both sides, this dispute was settled amicably by 24  Scheduled for publication December 2015. 25  Art 355(5)(a) of the TFEU. Art 46, LOS Convention. 26  See R. Long “The European Union and Law of the Sea Dispute Settlement” in J. Barrett, R. Barnes, (eds.) UNCLOS— Living Treaty (British Institute of International and Comparative Law, London, 2015), 35 pp., (in press). 27  Agreement on fisheries between the European Economic Community, of the one part, and the Government of Denmark and the Home Government of the Faeroe Islands, of the other part, OJ L 226, 29.08.1980. 28  Ibid.

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means of negotiation without resorting to a full hearing under the compulsory dispute settlement provisions of the LOSC.29 One cannot view EU Arctic related initiatives in isolation because Denmark’s domestic and foreign policies have an important northern dimension and the Danish government is a proactive proponent of Arctic matters within the European institutions. In this regard, the core policy elements are set out in the Kingdom of Denmark Strategy for the Arctic 2011–2020, jointly adopted by Denmark, Greenland and the Faroe Islands.30 The Strategy notes the importance of the close partnership with the EU on Arctic matters and the role that Denmark can play in shaping EU policies on a number of topics including environment (climate change), energy, natural resources, hunting and fisheries.31 The Strategy emphasises that the EU’s involvement in the Arctic takes place on the Arctic populations’ “own terms” and that the traditions of Arctic societies must not be neglected, citing the example of the EU’s prohibition on seal product imports (discussed further below).32 The Strategy records Danish support for the admission of the EU to the Arctic Council.33 For valid reasons relating to its unique geographical position, the Strategy aims to raise the profile of the Faroe Islands in the broader context of cooperation with the EU on its Arctic policy.34 2.2 Norway and Iceland The EU has strong legal and trade ties with both Norway and Iceland, which are pre-eminent members of the Arctic Council and significant international actors on Nordic affairs.35 At various times both countries have sought membership in the EEC/EU and this experience has undoubtedly had a bearing on their special standing which is taken into consideration by the EU’s Arctic policy. Notably, Norway was a candidate and accepted for membership by the EEC in 1973 and again by the EC in 1994. On both occasions, accession 29  Op. cit. note 21. Also see, Bjørn Kunoy, “Available Tools for Stalemate Disagreements on the Conservation and Management of Shared Fish Stocks” in this volume. 30  Kingdom of Denmark Strategy for the Arctic 2011–2020 (Copenhagen: Ministry of Foreign Affairs, 2011). Available at: http://um.dk/en/~/media/UM/English-site/Documents/ Politics-and-diplomacy/Greenland-and-The-Faroe-Islands/Arctic%20strategy.pdf. 31  Ibid. at 52. 32  Id. 33  Id. 34  Id. 35  In total, the Arctic Council has eight members: Canada, Denmark (including Greenland and the Faroe Islands), Finland, Iceland, Norway, Russia, Sweden and the United States. In addition, six international organisations are granted permanent participant status as representatives of Arctic Indigenous Peoples.

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arrangements were rejected by referendum in Norway due to public concerns about the loss of sovereignty and traditional community values.36 Significantly, the no vote was strongest in the Norwegian Arctic and amongst the rural communities along the skjaergaard that have traditionally had very close ties with the ocean and fisheries in particular.37 That said, the EU, Norway and Iceland have fundamental differences in relation to the topics of whaling and the conservation of marine mammals. This in turn has shaped Iceland’s approach to EU membership, which is also influenced by trade and economic considerations. More specifically, in contrast to Norway, Iceland’s application for EU membership was influenced by the collapse in its banking system in 2008. As a result of the economic recovery, however, the negotiations for accession were put on hold at the behest of the Icelandic government in 2013.38 A key strand running through the EU’s Arctic policy is aimed at fostering close collaboration with Norway and Iceland on matters of mutual concern. Furthermore, despite their third-country status, the laws and policies of both countries are closely aligned with the EU through their membership of the European Free Trade Association and the Schengen Area, as well as through their participation in the European research programme (Horizon 2020), the EU’s Northern Dimension policy, and many other EU initiatives that have an Artic dimension. As a result of shared interests in exploiting pelagic fish stocks, one of the principal nexus for close cooperation between the EU and Norway and Iceland is in the conservation and management of fisheries. Norway is the EU’s most important external partner for fisheries matters, which are subject to bilateral, trilateral and voisinage agreements.39 Briefly stated, the geographical scope of the bilateral agreement covers the North Sea and the Atlantic,40 the trilateral agreement covers the Skagerrak and Kattegat in the straits between the North Sea and the Baltic Sea, and the voisinage arrangement pertains to the Swedish fishery in Norwegian waters of the North Sea. The EU has a long-standing fishery agreement with Iceland, which is far less extensive than the arrangements 36  P. Pettersen, A. Jenssen, and O. Listhaug, “The 1994 EU Referendum in Norway: Continuity and Change”, 19(3) (1996) Scandinavian Political Studies, 257–281. 37  Ibid. 38   European Commission, Enlargement Strategy and Main Challenges 2013–2014, COM(2013) 700, 16.10.2013, at 45. 39  Churchill, D. Owen, The EC Common Fisheries Policy (Oxford: OUP, 2010) 333–338. 40  Agreement on fisheries between the European Economic Community and the Kingdom of Norway, OJ L 226, 29.8.1980, 48.

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with Norway.41 The EU negotiates annually with Norway, Iceland, and the Faroe Islands regarding the precise conservation and management arrangements for shared and straddling fish stocks. Within the broader structures and procedures for regional fisheries management, Denmark (the Faroe Islands and Greenland), the EU, Iceland, Norway and the Russian Federation work together under the auspices of the North East Atlantic Fisheries Commission to promote the conservation and management of a number of discrete fish stocks in the North Atlantic area, which extends to the Arctic Ocean.42 3

Application of EU Law to the Arctic

The EU has exclusive competence in relation to management and conservation of fisheries including regulating the activities of Member State vessels in Arctic waters and by their nationals, without prejudice to the primary responsibility of the flag State.43 Moreover, the core EU treaties contain many substantive treaty provisions that are applicable to the Arctic by virtue of their material (ratione materiae) and personal scope (ratione personae). As noted above, however, the treaties do not contain any express reference to the Arctic in its entirety as a distinctive spatial region around which a line can be drawn for the purpose of regulation or management. Indeed, a quick cross-check reveals that the term “Arctic” is not mentioned expressly in the 400-plus pages that make up the consolidated versions of the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), and the Charter of Fundamental Rights. This may be contrasted with the more overt approach taken in EU secondary legislation such as the Marine Strategy Framework Directive, which refers to the Arctic as a “neighboring marine environment of particular importance for the Community”.44 From the perspective of the geographical scope of EU law, it should also be kept in 41  Agreement on fisheries and the marine environment between the European Economic Community and the Republic of Iceland, OJ L 161, 2.7.1993, 2. 42  See R. Churchill, D. Owen, The EC Common Fisheries Policy (Oxford: OUP, 2010) 123–125. See also E. Molenaar “International Regulation of Central Arctic Ocean Fisheries” in this volume. 43  Article 3(1)(d), TFEU. 44  Recital 42 of Dir. 2008/56/EC, OJ L 164/19, 25 May 2008. See R Long ‘The EU Marine Strategy Framework Directive: A New European Approach to the Regulation of the Marine Environment, Marine Natural Resources and Marine Ecological Services’, 29(1) 2011 Journal of Energy and Natural Resources Law 1–45.f.

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mind that only Greenland has coastline in Arctic waters proper. On the other hand, Finland has a number of rivers that flow into the Arctic Ocean across the Russian Federation and which come under the scope of the EU’s Water Framework Directive.45 In general, the absence of specific EU instruments that are focused solely on the Arctic explains why the multilateral and regional aspects of international law are so important for the EU, which is party in its own right to over a dozen international agreements that appertain to Arctic matters, both directly and indirectly. These agreements are binding on the EU and the Member States and form an integral part of the Union’s legal order.46 Importantly, they rank above secondary legislation in the hierarchy of EU law and thus take precedence over EU regulations, directives and decisions.47 They include the Convention for the Protection of the Marine Environment of the North-East Atlantic (the “OSPAR Convention”),48 the aforementioned Convention on Future Multilateral Co-Operation in North-East Atlantic (NEAFC Convention),49 the Protocol to the 1979 Convention on Long Range Transboundary Air Pollution on Persistent Organic Pollutants,50 the Stockholm Agreement on Persistent Organic Pollutants,51 the Agreement on the Conservation of African-Eurasian Migratory Waterbirds,52 and the Framework Agreement on a Multilateral Nuclear Environmental Programme in the Russian Federation.53 The inter­ national obligations of the Union extend to diplomatic agreements such as the Agreed Minute between the European Community and the United States 45  Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327, 22.12.2000, 1–73. This is also the reason why Finland is party to the 1992 OSPAR Convention. 46  Article 216(2), TFEU. Also, Case 181/73 Haegeman v Belgium [1974] ECR 449. 47  Case 40/72 Schroder KG v Germany [1973] ECR 125. 48  2354 UNTS 67. 49  1285 UNTS 129. Contracting Parties: Denmark in respect of the Faroe Islands and Greenland, the EU, Iceland, Norway and the Russian Federation. Cooperating noncontracting parties: Canada, St Kitts and Nevis, and New Zealand. 50  2230 UNTS 79. 51  2256 UNTS 119. 52  1651 UNTS 28 53  Contracting Parties: Belgium, Denmark, Finland, France, Germany, the Netherlands, Norway, Russia, Sweden, the United Kingdom, the United States, the European Community and the European Atomic Energy Community. The United States did not sign the Protocol on Claims, Legal Proceedings and Indemnification.

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of America on standards for the humane trapping of specified terrestrial and semi-aquatic mammals.54 The EU is also active in a number of fields of diplomatic endeavor, such as protection of marine biodiversity in areas beyond national jurisdiction, and it is seeking international support for the adoption of an LOSC implementation agreement on this subject at the United Nations,55 which if adopted will have a bearing on the adoption of future conservation and management measures applicable to the Arctic Ocean and the resources therein. 4

Variable Geometry of the EU’s Arctic Policy

Apart from the aforementioned hard law options, the variable geometry of the EU’s approach to Arctic governance is comprised mainly of more flexible or “softer” policy measures. Indeed, when one looks back at the progress that has been made over the past decade, it is evident that the principal means of EU intervention is through a system of policy statements that have no binding force but which have the practical effect of molding the conduct of the Member States and the Union. They include communications from the European Commission, the conclusions of EU Foreign Affairs Council meetings, as well as key resolutions adopted by the European Parliament, as summarized in Table 16.1 below.56 In parallel, a number of technical studies with a particular focus on Arctic matters have been published by the European Environmental Agency, the European Safety Agency, the OSPAR Commission, as well as by specialist research bodies.57 One fundamental weakness in this approach is that many key terms and expressions appear to lack precise or universally accepted definitions. For instance, the expression “Arctic governance” is seldom defined in EU law and

54  OJ L 219/26, 7.8.1998. 55  See R. Long, “The Inexorable Rise of the Law of the Sea Convention within the European Legal Order” in Michael Lodge, Myron H. Nordquist, (eds.), Peaceful Order in the World’s Oceans: Essays in Honor of Satya N. Nandan, (Leiden/Boston, Nijhoff, 2014), pp. 157–185. 56  European Commission, The EU and the Arctic Region, COM(2008) 763 of 20 November 2008; Joint Communication to the European Parliament and the Council, Developing a European Union Policy towards the Arctic Region: progress since 2008 and next steps, Brussels, JOIN(2012) 19 final 26.6.2012. See also the European Parliament resolution on the EU strategy for the Arctic (2013/2595(RSP)). (2013/2595(RSP)). 57  See, for example, EEA Arctic Briefing, 03.04.2015. Available at: http://www.eea.europa. eu/soer-2015/countries/arctic.

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policy measures.58 Similarly, as noted by your author elsewhere, the term “governance” is not mentioned specifically in the LOSC but is increasingly pervasive in the legal and political science literature on oceans affairs.59 In some instances, the term has different meanings in different regulatory and policy contexts. What is more, within the complex architecture of the EU institutions, there are different institutional bodies involved in formulating policy and legislative measures that impinge upon Arctic affairs. The main actors in the policy process are the Foreign Affairs Council and the European External Action Service, with a more reflective and formative role undertaken by the European Commission and the Parliament. Indeed within the European Commission, Arctic matters come under the scope of different directorates that are responsible for the fisheries, environment, regional, industry, single market and trade policies, to name but a few. In addition, a number of EU agencies including the European Maritime Safety Agency play a role in relation to specific aspects of the EU regulatory and policy brief. On occasion, the disparate institutional structures leads to what appears to be a growing disconnect or chasm between the steady evolution of the EU’s Arctic policy and other initiatives on the landscape of EU law and policy development. For instance, Arctic and Polar governance are not specifically mentioned in the European Commission’s Green Paper on the establishment of a maritime policy for the EU, which was published in 2007.60 The Commission, nonetheless, acknowledged in the Green Paper that the integrated maritime policy requires a governance framework that “applies the integrated approach at every level, as well as horizontal and cross-cutting policy tools”.61 Interestingly, a similar loose and cross-thematic approach to policy matters and the legal framework is also evident in the 2008 European Parliament Resolution on Arctic Governance,62 which called upon the European Commission to address a broad span of issues in its nascent Arctic policy including: climate change; 58  R. Long, “Principles and normative trends in European Union ocean governance” in C. Schofield, S. Lee, M. Kwon (eds.), The Limits of Maritime Jurisdiction (Boston/Leiden: Brill/Nijhoff, 2014), 629–726, especially at 703–704. 59  Ibid. See also L. Juda and T. Hennessy, “Governance Profiles and the Management of the Uses of Large Marine Ecosystems,” (2001) 32(1) Ocean Development and International Law 61 at 74, cited in D. Rothwell and T. Stephens, The International Law of the Sea (Oxford and Portland: Hart Publishing, 2001), 462. 60  European Commission, COM(2007) 575 final, 10.10.2007. 61  Ibid. at 4. 62  European Parliament resolution of 9 October 2008 on Arctic governance, RC\746034EN. doc, 6.10.2008. Available at: http://www.europarl.europa.eu.

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the needs and livelihoods of indigenous peoples; regional co-operation on environmental protection, navigation freedoms and the sustainable development of resources; and the development of energy and security policies, as well as cross-border political and legal structures.63 In developing its distinctive policy, the 2008 Parliamentary Resolution placed considerable emphasis on the EU working with both its own Arctic Member States along with third countries, namely Norway, Iceland, Russia, Canada and the United States. Much of the emphasis in the 2008 Parliamentary Resolution is on EU use of existing international structures and procedures to project its policy objectives including the climate change negotiations under the auspices of the UN Climate Change Conference in Paris 215, as well as by means of the good offices of multilateral and regional bodies, such as the International Maritime Organisation and the Arctic Council, which are concerned with specific matters such as maritime safety and regional affairs respectively. The 2008 Parliamentary Resolution envisaged the ultimate adoption of a multilateral treaty by the international community for the protection of the Arctic, drawing from the experience of the Antarctic Treaty and its associated 1991 Madrid Protocol.64 As will be seen below, this objective no longer features on the EU agenda or in the more recent statements or documents emanating from the European institutions.65 When we now look back, perhaps the most striking feature of the strategic assessment undertaken by the European Commission in 2008 is that it identified the principal weaknesses in Arctic governance as the “fragmentation of the legal framework, the lack of effective instruments, the absence of an overall policy-setting process and gaps in participation, implementation and geographic scope”.66 Since then, the EU approach to Arctic governance has sought to address these shortcomings by embracing international and EU law, as well as through forging stronger alliances with global, regional, national and sub-national organisations and institutions. A 2012 Joint Communication by the Council and the Parliament, as well as in a 2014 European Parliament Resolution, expanded on this approach and are examined in greater detail below. Similarly, we can expect further efforts on the part of the EU to address these particular issues in a concerted and integrated manner over the coming decade.

63  Ibid. at para. 7. 64  Ibid. 65  See discussion infra. 66  European Commission, COM(2008) 763 at 10.

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Raison d’être: EU Law and Policy Measures

The case supporting EU policy and regulatory intervention appears to be a strong one and linked with political, social, environmental and economic considerations. In the first instance, as seen previously, it is largely reflective of the interests of the EU’s Nordic Member States who have territories in the Arctic, but not exclusively so, as is evident in the statement delivered by the European Foreign Affairs Council (FAC) in June 2014, which called for greater engagement with all Arctic partners “to assist in addressing the challenge of sustainable development in a prudent and responsible manner”.67 In parallel with EU policy, a number of EU Member States including the United Kingdom (UK), Belgium and Germany, have historical links with the region and comprehensive Arctic national policies of their own.68 A key feature in these policy statements is that they all upheld the prerogatives of nation States to take appropriate measures that come within the scope of their sovereignty and jurisdiction. As noted in the UK blueprint for the region, “governance of the Arctic rests with the sovereign Arctic States, supplemented and complemented by international agreements and treaties, in particular the LOS Convention.69 As mentioned above, two Arctic States, Iceland and Norway are members of the European Free Trade Area, and their interests also have an indirect bearing on the formulation and implementation of EU policy and regulatory measures. Moreover, it should not be forgotten that the Sami people, who live and migrate across the most northerly parts of Sweden, Finland, Norway and Russia, remain the EU’s only indigenous people and they are protected under a range of human rights instruments including the United Nations Declaration on the Rights of Indigenous People.70 There are many other black letter reasons why the EU needs to engage in relation to the practical aspects of formulating and implementing a coherent and integrated Arctic policy. Notably, from a legal standpoint, many of the most pressing regional challenges pertaining to the environment, energy, maritime transport and fisheries, are matters over which the Member States have transferred or share competence with the EU, including competence to conclude .

67  Foreign Affairs Council meeting, Brussels, 12 May 2014. 68  See for example, Adapting to Change, UK policy towards the Arctic (London: Foreign and Commonwealth Office, 2013). 69  Ibid., at 13. 70  See Protocol 3 to the Act of Accession of Sweden and Finland. See also, N. Bankes, T. Koivurova, The Proposed Nordic Saami Convention: National and International Dimen­ sions of Indigenous Property Rights (Oxford: Hart Publishing, 2013).

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international treaties with third countries.71 The EU is therefore compelled by the LOSC, as well as by the parameters of its own legal order, to step-up to the mark by enhancing its contribution to Arctic cooperation in line with the general scheme of EU law, international law and regional agreements. Indeed, a quick glance through the EU institutional publications, the case law of the Court of Justice and the World Trade Organization, as well as the record of debates and resolutions of the European Parliament, reveals that the pre-dominate policy and regulatory considerations relate to political stability within the region, the protection of the environment, the exploitation of natural resources (both minerals and fisheries), the safety of navigation, and serving the needs of indigenous communities.72 This conclusion is also borne out by a number of specialist studies, which are updated periodically. In 2010, the Ecological Institute in Berlin published the first EU Arctic Footprint and Policy Assessment.73 Although not an official EU document, the 2010 assessment reviewed in a very concise and accessible form the impact of the EU and its citizens on nine disparate aspects of the Arctic environment and related matters, including: biodiversity, chemicals and transboundary pollution, climate change, energy, fisheries, forestry, tourism, transport, and EU impacts on the livelihoods and welfare of the indigenous communities that live in the Arctic region. Furthermore, one noticeable feature of the regulatory and policy measures canvassed in the study is that they were almost exclusively aimed at the implementation of well-established international agreements and other instruments. In relation to biodiversity, the study concluded that the EU has had an “indirect influence” on the loss of biodiversity, without specifying in any great detail the exact range of impacts or the degree of severity, apart from references to the impacts of tourism, shipping, pollution and the extraction of natural resources. To address the on-going loss of Arctic biodiversity, the study suggests that the EU ought to work with both Sweden and Finland with a view to extending the protection afforded by means of the NATURA 2000 protected areas, as well as with OSPAR and the Arctic Council on the adoption of more specific measures to protect aspects of marine biodiversity from human 71  See discussion on the application of EU law to the Arctic, supra. 72  See Table 1 supra. 73  The assessment and report is undertaken by four institutes: Ecologic Institute (Germany; Project Co-ordinator), Arctic Centre (Finland), Stockholm Environment Institute (Sweden), and Sustainable Europe Research Institute (Austria). See S. Cavalieri et al., EU Arctic Footprint and Policy Assessment (Berlin: Ecological Institute, 21 December 2010). Available at: http://arctic-footprint.eu/sites/default/files/AFPA_Final_Report.pdf.

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activities.74 On a similar theme, the study noted that the EU is a major contributor to global transboundary pollution of the Arctic from persistent organic pollutants and heavy metals. Following from this finding, much emphasis is placed on the monitoring of pollution through the Arctic Monitoring and Assessment Programme and by means of the implementation of two international agreements, the Convention on Long-range Transboundary Air Pollution and the Stockholm Convention.75 On the subject of climate change, the 2010 study pointed out that the combined emissions of the then 27 EU Member States makes the EU the third largest emitter of greenhouse gas emissions at a global level, behind the United States and Asia. Again the policy and regulatory proposals were very much focused on implementing existing arrangements including the commitment by the EU to reduce emissions from international shipping and to support the further reduction of domestic emissions in the Member States in line with the obligations set down in secondary legislation and the European policy on climate change. In 2015, the European Environment Agency pointed out that the size of “any future EU Arctic footprint will be lower if EU Member States are able to adhere to agreed targets, such as reducing greenhouse gases by 40% before 2030 and 80% before 2050.76 Clearly, mineral extraction is a topic of common interest for all states and international bodies concerned with Arctic affairs. On the basis that Russia receives 60% of all its foreign revenue from the EU in return for hydrocarbon exports, the 2010 study recommends that the EU should strive to ensure that Arctic energy development is sustainable and that this objective ought to be a feature of its bilateral relationship with Russia and the Northern Dimension policy. The economic ties are particularly strong as the EU Member States were already receiving close to a quarter of all Arctic hydrocarbon production by 2010 and this figure was set to increase significantly prior to the Ukraine crises in 2014–2015.77 Other aspects of economic development are a major consideration for the Union, which invested over €1.14 billion to develop the economic, social and environmental potential of the Arctic regions of the EU and neighbouring areas

74  The OSPAR QSR 2010 reports on the environmental status of the Arctic in the OSPAR Maritime Area, (London: OSPAR Commission, 2010) passim. 75  Op. cit. note 103 infra. 76  Op. cit. note 53 supra. 77  Cited in S. Cavaleiri et al., EU Arctic Footprint and Policy Assessment (Berlin: Ecological Institute, 2010) at 7.

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during the period 2007–2013.78 EU Member States are major importers of fish products from the Arctic region and are strongly supportive of efforts to establish a new regional framework for straddling fish stocks, as well as the strict observance of enforcement and compliance measures including those aimed at giving effect to the FAO Agreement on Port State Measures to Prevent, Deter, and Eliminate IUU Fishing, which was approved by the European Council in 2011.79 Indeed, one of the suggestions made in the EU Arctic Footprint study is the institution of a system of environmental impact assessment prior to the instigation of new fisheries in the Arctic region.80 The environmental aspects of EU Arctic fisheries are now governed by the reformed common fisheries policy in the form of a new basic regulation for fisheries management, which implements the ecosystem-based approach to fisheries management to mitigate the negative impacts of fishing activities on marine ecosystems.81 Arctic shipping and maritime transport more generally are important for the Union with EU Member State vessels making up a quarter of all vessels that operated in the Arctic in 2015. Thus it is not surprising to note that the EU maritime policy is concerned with the standards that apply to safe navigation, to search and rescue as well as to port infrastructure within the region.82 The EU is concerned with the nuclear legacy of the Soviet Northern Fleet and has made a substantial fiscal contribution to the decommissioning of the floatingmaintenance base the “Lepse”, the Alfa-class submarine fleet, as well as the remediation of a number of sites on the Kola Peninsula.83 Our understanding of the Arctic is improving on the back of scientific monitoring programmes and specialist technical studies. This is clearly evident from the results of the comprehensive report published by the Arctic Centre at the University of Lapland in September 2014, entitled Strategic Assessment of Development of the Arctic.84 The recommendations made by 78  See EU institutional sources in Table 1 supra. 79  Council Decision on the approval, on behalf of the European Union, of the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, OJ L191 of 22.07.2011, p. 1. 80  EU Arctic Footprint and Policy Assessment at p. 9. 81  Article 2(3) Regulation 1380/2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, OJ L 354/22, 28.12.2013. 82  See discussion of EU regulatory and policy intervention with an eye to the future, infra. 83  European Commission External Action Service, “The inventory of activities in the framework of developing a European Union Arctic Policy”, SWD (2012), 182, 26.06.2012. 84  Available at: http://www.arcticinfo.eu/images/pdf/SADA_report.pdf.

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the Assessment will unquestionably shape EU policy over the coming decade. Among its comprehensive findings in relation to the European Arctic,85 the Assessment notes that development in the Arctic is uneven and driven by a number of considerations including the global economy and the effects of climate change. Pointedly, the Assessment calls for great clarity in EU policy actions, with a specific focus on actions that are aimed at the circumpolar Arctic, the European region, and the areas coming under the sovereignty and jurisdiction of the Member States.86 There are a number of other findings in the Assessment that warrant careful analysis in their own right but which are beyond the scope of this chapter, including the observation that the “current economic and social developments are generally moderate and expectations for the near-term are modest”; “Arctic developments are closely interconnected”; and this in turn leads to the obvious conclusion that the EU is affected by the changes in the Arctic.87 We will return to some of the policy recommendations made by the 2014 Assessment further on below.88 6 Open Tableau of Policy Objective As far back as 2008, the European Commission identified three core EU policy objectives for the EU’s Arctic policy, namely: (1) the advancement of environmental protection, particularly in the context of climate change; (2) the sustainable use of natural resources; and (3) the augmentation of the EU’s contribution to multilateral governance.89 In the intervening years, these objectives have not changed a great deal and are expected to remain at the top of the EU agenda in the longer-term. Moreover, the portfolio of EU regulatory and policy actions to deliver on these objectives has a strong law of the sea dimension and are firmly rooted in the LOSC as is evident from Union and Member State practice on Arctic matters since 2008. In relation to the first policy objective, they include a commitment to contribute to maritime disaster response through the good offices of the Barents 85  The European Arctic is described as the part of the circumpolar Arctic located between Greenland and northwest Russia. There are, however, different definitions of the European Arctic, which is defined by the EEA as extending from Greenland in the West to the Urals in Russia to the East, op cit. note 53 supra. 86  Strategic Assessment of Development of the Arctic at p. 143. 87  Executive Summary, ibid., at XIV–XVI. 88  See discussion of EU regulatory and policy intervention with an eye to the future, infra. 89  COM(2008) 763.

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Euro-Arctic Council, the reduction of pollution (as seen above, the EU is a major polluter of the Arctic environment), as well as the sharing of information on the EU experience in implementing ecosystem-based management.90 With respect to the latter, the EU proposed integrating the Marine Strategy Framework Directive into the EEA Agreement and applying this instrument to part of the Arctic Ocean.91 An aspect of the policy that differs fundamentally from Iceland and Norway is that the protection of whales is seen as a core policy objective for the EU in accordance with the scheme advanced by the International Whaling Commission.92 On the latter, it may be recalled that EU law provides for indigenous subsistence whaling and as will be discussed in further detail below, the application of EU trade measures to seal products derived from Inuit hunts has had a major bearing on the relationship between the EU and Canada.93 Although more cross-thematic in focus and not limited solely to environmental considerations, the Arctic region was acknowledged as a priority region for European research programmes including projects that have a strong marine scientific research dimension, such as the European Marine Observation and Data Network.94 This development has allowed the EU to contribute to the establishment of the Arctic component of Global Earth Observation System of Systems. According to the NOAA website, the latter aims to “provide the right information, in the right format, to the right people, at the right time, to make the right decisions”.95 On the second policy strand, the European institutions are firmly of the view that the regulatory regimes applicable to the exploration and exploitation of natural resources are primarily a matter for the coastal States within the region.96 This of course fully accords with the LOSC provisions on the Exclusive Economic Zone and the continental shelf.97 Accordingly, the EU was committed to working with Norway and the Russian Federation with a view to “facilitating the sustainable and environmentally friendly exploration, extraction and transportation of Arctic hydrocarbon resources”.98 Significantly, the European Commission has expressed a preference for the extension of 90  Ibid. at 3–5. 91  Op. cit. note 43. 92  COM(2008) 763 at 5. 93  Article 13 Treaty on the Functioning of the European Union. 94  COM(2008) 763 at 5–6. 95  See http://www.noaa.gov/eos.html. 96  COM(2008) 763 and JOIN(2012) 19. 97  Articles 56 and 77, LOSC. 98  COM(2008) 763 at 7.

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the mandate of the North East Atlantic Fisheries Commission to address high seas Arctic fisheries and supports a moratorium on fishing activity until the international community has resolved outstanding management and conservation issues.99 Although the year-round use of Arctic waters by shipping is still remote, EU policy initiatives are nonetheless premised upon increased use of such waters for navigational purposes including both the Northwest Passage and the Northern Sea Route. The latter shortens the steaming distance between northern Europe and Asia by one third and passes through Russian Arctic internal waters.100 The European Commission is strongly of the view that the establishment or more intensive use of shipping routes in the Arctic ought to reflect the navigation rights and freedoms as codified in the LOSC.101 In light of the economic importance of shipping for the future prosperity of Europe, they have been active in a number of international bodies and tabled a number of concrete proposals including: the promotion of IMO navigation rules, maritime safety, routes systems and environmental standards in the Arctic (see further below on the Polar Code), as well as full EU support for any coastal State proposal regarding the designation of any Arctic area as an IMO particularly sensitive sea area.102 In relation to safety, the European Commission is opposed to the imposition of coastal State tariffs on commercial shipping exercising navigational rights but would like to see increased use of remote sensing systems including the Galileo satellite navigation system to ensure the safety of shipping in polar waters.103 European shipyards have a major role to play in providing well designed, environment-friendly ships including ensuring that higher safety standards are reflected in the design and construction of cruise ships for future deployment in Arctic waters. Furthermore, the EU is fully committed to supporting the full implementation of the Agreement between the Governments in the Barents Euro-Arctic Region on Cooperation within the field of Emergency Prevention, Preparedness and Response, which was negotiated within the framework of the Barents Euro-Arctic Council.104

99  See E. Molenaar, “International Regulation of Central Arctic Ocean Fisheries” in this volume. 100  JOIN(2012) 19 at 3. 101  COM(2008) 763 at 8–9. 102  Ibid. 103  Ibid. 104  Finland, Norway, the Russian Federation and Sweden. Into force on 17 May 2012.

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EU Perspective on Arctic Governance Structures

The third strand of the EU’s Arctic policy concerns promoting stable governance structures and procedures that facilitate the peaceful settlement of disputes. The latter objective is perhaps the most critical aspect of the policy for the EU and the Member States in light of the scope for increased regional tension and misunderstanding regarding Arctic related matters, as evidenced by the Arctic Sunrise case and the visit of Russia’s Deputy Prime Minister, Dmitry Rogozin, to Svalbard in April 2015.105 Cooperation between the EU and third countries takes a number of forms including diplomacy and by means of binding and non-binding agreements. Within the European institutions, the Council and the Parliament are the principal law-making bodies and are therefore closely involved in formulating and implementing the external dimension of EU policies on the world stage including fostering a greater role for the EU in Arctic affairs. The European External Affairs Council in particular has taken the lead by seeking to enhance the EU role in bodies with environmental matters and economic development of the Arctic region. Instructively, as far back as 2009, a draft minute of a Foreign Affairs Council meeting noted that the EU’s Arctic policy should be founded upon the rule of law as codified in the LOSC and other international agreements, and that it should also reflect the needs and aspirations of indigenous peoples.106 Again there is considerable commonality with the perspective presented by the European Commission in its communication (summarized above), in so far as all of the European institutions are seeking to maintain the Arctic as an area of peace and stability, but at the same time acknowledge “the need for responsible, sustainable and cautious action in view of new possibilities for transport, natural resource extraction and other entrepreneurial activities linked to melting sea ice and other climate change effects.”107 This explains why EU policy appears to be directed at both top down and bottom-up governance solutions in so far as it promotes the role of international organizations, together with an enhanced role for sub-state authorities such as those that represent the interests of indigenous communities. An explicit premise underpinning the policy is that the challenges faced by the region are global in nature and should therefore involve all relevant actors at 105  See, “The Arctic is Russia’s Mecca, says top Moscow official”, in Washington Post, 20 April 2015. Available at: http://www.washingtonpost.com/blogs/worldviews/wp/2015/04/20/ the-arctic-is-russias-mecca-says-top-moscow-official/. 106  Council conclusions on Arctic issues, 2985th Foreign Affairs Council meeting, Brussels, 8 December 2009. 107  Ibid.

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appropriate governance levels including those that are underpinned by multilateral agreements. Arguably, the policy and regulatory fields in which the EU is most active pertains to climate change and within the framework of the UN regular process on global reporting and assessment of the state of the marine environment.108 In view of the transboundary nature of environmental pollution, the EU has also sought to give greater effect to the Espoo Convention on environmental impact assessment and its protocol on strategic environmental assessment,109 as well as by means of a number of mechanisms dealing with persistent organic pollutants such as the Stockholm Convention and the Protocol of the United Nations Economic Commission for Europe Convention on Long-range Transboundary Air Pollution.110 The European Foreign Affairs Council believes that active participation in the work of regional governance structures is a sine qua non for greater EU engagement in Arctic governance. All of the EU institutions share the view that the principal axis for greater EU engagement in Arctic affairs is by means of the Arctic Council, the Barents Euro-Arctic Council,111 the Barents Regional Council, the EU’s Northern Dimension Policy with Russia, Norway and Iceland, and through the conclusion and implementation of strategic partnerships on discrete topics of common interest with Canada, the United States and Russia.112

108  See, United Nations, Background information on the Regular Process. Available at: http:// www.un.org/depts/los/global_reporting/regular_process_background.pdf. 109  Implemented into EU law by EIA Directive as since amended. For consolidation, see Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment Text with EEA relevance OJ L 26, 28.1.2012, as amended by Directive 2014/52/EU 2011/92/ EU, OJ L 124, 25.4.2014. 110   Council Decision of 19 February 2004 concerning the conclusion, on behalf of the European Community, of the Protocol to the 1979 Convention on Long Range Transboundary Air Pollution on Persistent Organic Pollutants, OJ L 81, 19.3.2004; Council Decision of 14 October 2004 concerning the conclusion, on behalf of the European Community, of the Stockholm Convention on Persistent Organic Pollutants, OJ L 209, 31.7.2006. 111  Within the framework of the Barents Euro-Arctic Council, Denmark, Finland, Norway, Russia, Sweden and the European Commission are active in the fields of health and social issues, education and research, energy, culture and tourism. 112  The Northern Dimension has a broad range of participants that include the EU, Iceland, Norway and the Russian Federation, as well as the Arctic Council, the Barents EuroArctic Council, the Council of the Baltic Sea States, the Nordic Council of Ministers, the European Bank for Reconstruction and Development, the European Investment Bank, the Nordic Investment Bank and the World Bank. Canada and the United States hold observer status in the Northern Dimension.

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Among these bodies, the EU has pushed for greater European institutional engagement with the Arctic Council, which is the primary forum concerned with the sustainable development and environmental protection of the region. As far back as 2008, the Commission applied on behalf of the EU to become a permanent observer within the Artic Council. Notably, the role of the EU in circumpolar regional cooperation received a considerable boost by the decision of the Arctic Council to ‘affirmatively receive’ this application for permanent status in 2013. As is well known, the principal actors within the region are all members of the Council, namely Canada, Denmark (representing both Greenland and the Faroe Islands), Finland, Iceland, Norway, the Russian Federation, Sweden and the United States. The indigenous people’s organisations have the status of “permanent participants” and six EU Member States (Germany, France, the United Kingdom, Netherlands, Spain and Poland) play somewhat of a lesser role in their capacities as active permanent observers. Interestingly from a European perspective, the European Parliament has long since sought the establishment of a secretariat to serve the needs of the Arctic Council, a more equal sharing of the costs associated with regional governance, as well as more frequent ministerial meetings along with an Annual Arctic Summit at the highest political level, as proposed by Finland.113 On a related matter that appears to touch upon European sensibilities, the European Parliament has suggested that the continued high-level meetings of an inner exclusive core of States undermine the role and status of the Arctic Council.114 In light of its importance as the key governance body concerned with regional matters, it is somewhat ironic that China, along with India, Italy, Japan, South Korea and Singapore, all have observer status in the Arctic Council but this was denied to the EU during the period 2013–2015. As will be seen below, this can be attributed to Canadian opposition to the EU legislative regime applicable to trade in seal products. The latter dispute has tainted EU relations with a number of Arctic States, as well as with indigenous communities, and therefore merits additional consideration below. 8

Advancing Welfare Considerations: EU Regime on Seal Products

The hunting of seals for subsistence hunting has a long history in the Arctic and is one of the most topical aspects of the EU’s Arctic, environmental and trade 113  Para. 52 of the European Parliament resolution of 20 January 2011 on a sustainable EU policy for the High North. 114  Ibid.

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policies. Perhaps it is best to start by pointing out that the hunting of seals is permitted under various regulatory and management regimes in Canada, the Russian Federation, Iceland, Norway, as well as in Greenland and the Faroe Islands. The European Commission estimates that 30% of global trade in seal products takes place on the EU internal market and this in turn has influenced the EU regulatory approach to seal hunts and the marketing of the by-products derived therefrom.115 Much of the discussion on Arctic sealing relates to the broader EU regulatory code and treaty provisions on animal welfare, which have evolved steadily since the early 1980s.116 From an EU treaty perspective, this regime appears to have reached somewhat of an apogee in 2009 with the adoption of the TFEU, as the latter places an express legal obligation on the Union and the Member States to “pay full regard to the welfare requirements of animals” when formulating and implementing EU policies, while at the same time to respect “the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage”.117 Most importantly, this provision is premised on the normative justification that animals are “sentient beings” and therefore merit special protection under EU law.118 This is not entirely a new departure in EU treaty law as this provision brings into the body of the TFEU the Protocol on the Protection and Welfare of Animals, which had previously been annexed to the EC Treaty.119 Apart from creating greater political awareness of EU animal welfare rules, the TFEU provision has a number of implications for the rolling out of future EU regulatory measures that impinge upon the Arctic. In particular, the EU must “pay full regard” to welfare requirements in six of its own internal policies, namely agriculture, fisheries (somewhat controversial, as many fishing practices controvert the general tenor of EU law in this regard), transport, internal markets, research and technological development, and space policy. The prescribed list of policies is neither inclusive nor exclusive and thus spills over into many other fields of EU endeavor such as external affairs and development aid. Moreover, although the environmental policy is omitted from this list, the environmental provisions in the European Treaties provide a separate legal basis for the 115  For background information, see COM(2008) 469 final, Brussels, 23.7.2008. 116  L. Kramer, EU Environmental Law 7ed. (London: Sweet and Maxwell, 2007) at 200–205. 117  Art 13, TFEU. 118  Ibid. 119  With some significant amendments. See Protocol 33, Protection and Welfare of Animals, EEC Treaty.

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preservation and protection of animals for conservation purposes including the application of the precautionary approach for the protection of marine mammals.120 Indeed there has been extensive use of these treaty provisions to underpin EU measures prohibiting the use of certain types of fishing gears because of their wasteful environmental footprint such as the prohibition on driftnet fishing for tuna and salmon.121 Quite clearly, however, animal welfare protection obligations that arise under EU law are not absolute or paramount in so far as they must be balanced with religion, cultural and heritage considerations.122 Where precisely the pendulum should fall in this regard is difficult to say and is often addressed more specifically by means of secondary legislation on particular species and fauna. Thus, for instance, certain means of capture or the deliberate killing of seals are prohibited under the EU Habitats Directive in the territory of the Member States, as well as in sea areas under their sovereignty and jurisdiction.123 9

EU Prohibits Trade in Seal Products

In the early 1980s, the then EEC adopted various measures to regulate trade in seal products.124 Again this legislation was based upon animal welfare considerations and not aimed directly at advancing nature conservation or environmental objectives. Subsequently, several Member States, including Belgium and the Netherlands, adopted national legislation prohibiting trade in seal products.125 Further progress was made on this issue in 2009, when after consulting with various stakeholders including Canada, Norway and various representatives of the Arctic indigenous communities, the European Parliament and the Council adopted a regulation on the harmonization of EU rules on trade in seal products (hereinafter the “Basic Regulation”).126 Essentially, this instrument prohibits trade in seal products within the EU, with three important exceptions 120  Article 191(2), TFEU. 121  See R. Long, P. Curran, Enforcing the Common Fisheries Policy, (London: John Wiley, reprint 2008) at 278–313. 122  Article 13, TFEU. 123  Article 12, Directive 92/43/EEC. 124  Directive 83/129/EEC; Directive 85/444/EEC; and Directive 89/370/EEC. 125  IFAW Press Release, The Netherlands becomes the second EU nation to ban the trade in seal products, 18 July 2007. Available at: http://www.ifaw.org/united-states/node/10161. 126  Regulation (EC) No. 1007/2009 of the European Parliament and of the EC Council of 16 September 2009 on trade in seal products OJ L 286/3, 31.10.2009.

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that allow for the following: (1) trade in products derived from subsistence hunting by Inuit or other indigenous communities (commonly referred to as the “IC exception”); or (2) products for personal use; or (3) where they are the by-products of hunts regulated by national law, which are conducted for the sole purpose of the sustainable management of marine resources (known as the “MRM exception”). The Basic Regulation was followed by a more detailed implementation measure in the form of a Commission Regulation setting out comprehensive rules on the placing on the market of seal products spelling out how the exceptions work in practice.127 10

Inuits Challenge Trade Measures in the European Courts

The EU trade regime had a major influence on the international market for seal products worldwide, as well as on the practice of commercial sealing in Arctic waters and in Canada particularly. As a result, it was challenged by a number of interested parties in the European Courts and through the dispute settlement mechanism at the World Trade Organization. More specifically, the basic regulation was challenged before the EU’s General Court of Justice in annulment proceedings taken by an association representing the interests of Canadian Inuits (Inuit Tapiriit Kanatami) and a group of the manufacturers and traders in seal products.128 On a point of EU law, the Court deemed the initial challenge inadmissible on the grounds that the Basic Regulation was a legislative act and the applicants had not established that the contested regulation was of “individual concern” to them,129 which is one of the rules on standing that private applicants must meet in order to initiate Court proceedings. In this instance, the Court noted that the Basic Regulation is worded in general terms and applies indiscriminately to any trader falling within its scope. The Court of Justice upheld this finding on appeal.130 This was an unsurprising outcome that demonstrates the on-going 127  Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products OJ L 216/1, 17.8.2010. 128  Case T-18/10, Inuit Tapiriit Kanatami and Others v Parliament and Council. Previously, the General Court also dismissed the two applications for interim measures to overturn the seal product prohibition in April 2010 and October 2010. 129  Case T-18/10, para. 56, 6 September 2011. 130  Case C-583/11 P Inuit Tapiriit Kanatami and Others, judgment 3 October 2013 (not yet reported).

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locus-standi obstacles that private applicants encounter in challenging the legality of EU acts before the European Courts. In separate but parallel proceedings, the appellants were also unsuccessful in annulment proceedings challenging EU regulations.131 The applicants claimed that the principal objective of the Basic Regulation is the protection of animal welfare and that the adoption of such a measure was not an exclusive EU competence. The Court in dismissing the application held that the Basic Regulation was a trade measure and had been adopted on the correct legal basis under the EEC Treaty.132 11

EU “Public Morals” Argument Trumps Canada at WTO

The EU measures prohibiting the import and marketing of seal products has come under WTO scrutiny in a relatively protracted and acrimonious dispute,133 as commented upon by Elizabeth Whitsitt in greater detail in her contribution to this volume.134 Most notably, in groundbreaking dispute settlement proceedings at the WTO, initiated at the behest of Canada and Norway, a Panel was convened to determine whether the EU sealing regime was inconsistent with the Agreement on Technical Barriers to Trade (the TBT Agreement), the General Agreement on Tariffs and Trade (GATT 1994) and the Agreement on Agriculture.135 After undertaking two oral hearings, the WTO circulated the Panel’s lengthy final report to all Members in November 2013.136 The report concluded that the EU prohibition complied in the main with international trade rules but that it was subject nonetheless to several inconsistencies. More specifically, in relation to the TBT Agreement, the Panel concluded that the two aforementioned 131  Case T-526/10 judgment of 25 April 2013. 132  Case T-526/10, paras. 64 and 82. 133  EC-Measures Prohibiting the Importation and Marketing of Seal Products (DS400 and DS401), 18 June 2014. Available at: https://www.wto.org/english/tratop_e/dispu_e/ cases_e/ds401_e.htm. 134  See E. Whitsitt, “Finding Refuge in the Exceptional: Using Morality as a Way to Manage Natural Resources in the Arctic” in this volume. 135  Article 2.1 and 2.2 of the TBT Agreement; Articles I:1, III:4 and XI:1 of the GATT 1994 and Article 4.2 of the Agriculture Agreement. 136   WTO, Reports of the Panel: European Communities—Measures Prohibiting The Importation And Marketing Of Seal Products. WT/DS400/R. WT/DS401/R. 25 November 2013.

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exceptions (the IC and the MRM exceptions) afforded imports less favorable treatment to domestic products.137 Furthermore, the discrimination in treatment did not stem exclusively from legitimate regulatory distinctions. In a major finding that has implications for seal hunts conducted in the Arctic and elsewhere, however, the Panel concluded that the EU measures were justified on the grounds of protecting EU public moral concerns over seal welfare and that “no alternative measure has been demonstrated to make an equivalent or greater contribution” to this objective.138 On the substance of the other complaints, the Panel concluded that imported seal products originating in Canada from Inuit indigenous communities were treated less favorably by the EU than seal products originating in Greenland, thus contravening GATT 1994. The Panel also found that the EU exceptions (outlined above) were not justified because they were “not applied in a manner that would constitute arbitrary or unjustified discrimination where the same conditions prevail or a disguised restriction on international trade”.139 The Panel held that the EU had not established a prima facie case that the contested measures were necessary to protect animal life or health. Moreover, it found that the EU assessment procedures were not compliant with the requirements of the TBT Agreement. The Panel recommended that the EU bring the inconsistent measures into conformity with its trade obligations. The press statements issued by the respective parties subsequent to the Panel’s conclusions are indicative of how both parties perceived the outcome as a victory for their respective interests. A statement issued by the Office of International Trade in Ottawa noted that: The WTO panel confirmed Canada’s long-standing position that the EU ban is discriminatory and treats Canadian seal products unfairly. However, the panel also took the view that such a ban can be justified due to some of the public’s concerns regarding seal harvesting.140

137  Contravening both Article 2.1 of the TBT Agreement and Article I:1 of the GATT 1994. 138  Article 2.2 of TBT Agreement. 139  Article XX GATT 1994. 140  Press Statement: Harper Government to Appeal WTO Decision on EU Ban on Seal Products. 25 November 2013. Available at: http://www.dfo-mpo.gc.ca/media/npresscommunique/2013/20131125-eng.htm.

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The EU, on the other hand, welcomed the ruling while noting the WTO criticism of the measures on Inuit hunts.141 Subsequently, Canada and Norway lodged an appeal against the Panel’s findings, with the EU also issuing a crossappeal in relation to some factual and legal issues of interpretation. In May 2014, the WTO Appellate Body upheld the Panel’s conclusion that the EU regime was inconsistent with the GATT 1994 because it does not “immediately and unconditionally” extend the same market access advantage to Canadian and Norwegian seal products that it accorded to seal products originating from Greenland. Nonetheless, it followed and upheld the Panel’s milestone finding that EU measures were “necessary to protect public morals” concerning seal welfare. The Appellate Body declined to rule on the issue as to whether the exemptions pertaining to IC in Greenland were unfair to non-indigenous hunting communities but agreed that they did not give the same market access to Canadian and Norwegian seal products as those from Greenland. The WTO ruling has a major bearing on EU policies worldwide that are aimed at advancing animal welfare considerations and should therefore not be viewed exclusively through the prism of the EU’s approach to Arctic related matters. The outcome of the WTO proceedings has also brought about some reform in EU law and demonstrates yet again the close relationship between the various environmental, trade and social strands in EU policies. 12

EU Law Reform Measures on Seal Products

In February 2015, the European Commission published a proposal for a draft regulation to reform EU law in light of the findings of the WTO.142 Significantly, this proposal removes the MRM exception from the Basic Regulation on the grounds that commercial hunts cannot be distinguished from the small-scale marine management hunts.143 The proposal acknowledges, however, the significance of the latter for the purpose of sustainable management of marine resources in the Member States.144

141  European Commission Press release: WTO upholds EU ban on seal products, http://trade. ec.europa.eu/doclib/press/index.cfm?id=1084. 142  COM(2015) 45 final, Brussels, 6.2.2015. 143  Recital 4, Draft Regulation. 144  Ibid.

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With regard to the IC exception, the proposed reform will allow seal products to access the EU market provided three conditions are satisfied, namely “(1) the hunt has been traditionally conducted by the community; (2) the hunt contributes to the subsistence of the community and is not conducted primarily for commercial reasons; and (3) the hunt is conducted in a manner which reduces pain, distress, fear or other forms of suffering of the animals hunted to the extent possible, taking into consideration the traditional way of life and the subsistence needs of the community.” Essentially this provision is aimed at ensuring that seal products derived from indigenous community hunts that are primarily conducted for commercial purposes do not enter the EU internal market under the Inuit exception. In an additional follow-up to the WTO ruling, experts from the EU and Canada have worked together to establish a certification system to enable Canadian Inuit to make use of the Inuit exception under the EU seal regime. 13

EU Approach to Arctic Dispute Settlement

As seen in relation to the seal products dispute between Canada and Norway, the EU is fully committed to the peaceful settlement of disputes. This approach extends to all aspects of the Law of the Sea including supporting Arctic States in the peaceful settlement of maritime boundary disputes including unresolved boundaries in the Barents Sea, the Bering Strait and in the Beaufort Sea.145 The scale of this challenge should not be underestimated and may have a major bearing on regional stability in the Arctic, as Canada and Denmark are in dispute over Hans Island. Moreover, Norway and several countries within the region, including EU Member States, have different views on the interpretation and the applicability of the Svalbard Treaty in the 200 nm zone around the archipelago.146 One of the great strengths of the Law of the Sea is that Part XV of the LOSC provides a stable framework for dispute settlement. The EU is also committed to monitoring closely submissions made by coastal States to the Commission on the Limits of the Continental Shelf regarding their extended continental shelf limits in accordance with Article 76 of the LOSC, and to keeping under constant review how the latter process impinges upon the EU’s strategic and related interests within the region. Similarly, as mentioned previously, the EU 145  COM(2008) 763, note 16 at 9. 146  Ibid.

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is keen to promote the negotiation of a new multilateral agreement within the framework of the LOSC to protect biodiversity in areas beyond national jurisdiction.147 14

EU Policy Trends with an Eye to the Future

EU policy towards the Arctic remains disparate but is slowly crystallizing into specific actions in response to increased knowledge about the environmental, social and political factors that are shaping the polar region. The Joint Communication published by the Commission and the High Representative in 2012 records the progress made in the period from 2008–2012 and the next steps in EU Arctic policy formulation and implementation. A quick review of this document reveals that the central thesis underpinning the policy centers on the leitmotivs of greater knowledge, responsibility and engagement. Much of the emphasis in the Joint Communication is on the use of EU fiscal measures to promote the development, research, and application of new and emerging technologies in addressing many of the challenges faced by the region. Specifically, the EU is committed to exploring with Arctic Member States on how best to use the various EU funds to support the development requirements of local populations within the region.148 Similarly, it proposes spending a part of the 80 billion EUR Horizon 2020 research and innovation programme on Arctic related research including research on the effects of climate change on local populations and economic activity. Fiscal commitments extend to the financing of nuclear clean-up activities in Russia under the Northern Dimension Environmental Partnership and to supporting the Archangelsk Municipal Water and Wastewater Services project. There is also a commitment to enhanced search and rescue capability within the region through the launch of the next generation of observation satellites. There is a commitment to promote the use of “cleaner” and emerging technologies by extractive industries in the Arctic. In view of its resource intensive economies, stability in the supply of raw materials and energy are of fundamental 147  R. Long “The Inexorable Rise of the Law of the Sea Convention within the European Legal Order” in Michael Lodge, Myron H. Nordquist, (eds.), Peaceful Order in the World’s Oceans: Essays in Honor of Satya N. Nandan, (Leiden/Boston, Nijhoff, 2014), pp. 157–185 (especially 182–185). 148   European Regional Development Fund (ERDF), European Social Fund, Cohesion Fund, European Agricultural Fund for Rural Development, European Maritime and Fisheries Fund and the Instrument for Pre-Accession Assistance.

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importance to the EU and is a core element in its external policy as it presses ahead in establishing a new energy Union.149 Among the twenty-eight action points listed in the 2012 Joint Communication, there are several initiatives that have a law of the sea focus including the actions taken by the EU to pool data on the environmental status of European seas and to complete high-resolution seabed mapping by 2020. Again considerable emphasis is placed in the 2012 Joint Communication on the management of fish stocks in ABNJ on the basis of the precautionary approach, as well as on resolving the difficult outstanding policy issues with Arctic States concerning seal hunts. For obvious reasons related to its position as a global trading block, Arctic shipping and the safety of navigation remain of paramount importance for the EU.150 Significantly, the agreed minutes of a 2014 Foreign Affairs Council meeting emphasizes the importance of “respecting international law principles, including the freedom of navigation and the right of innocent passage” in the context of the opening of trans-Arctic navigation and shipping routes.151 In this respect the EU is a major supporter of the Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic, as well as the Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic.152 This also explains why the EU is seeking to use existing structures and the practical work of bodies such as the Barents Euro-Arctic Council to improve maritime safety and rescue cooperation in the Barents-Euro Arctic Transport Area. Although not a member of the IMO, the EU has been a strong proponent of the Polar Code and related amendments to the SOLAS Convention.153 If adopted at the 68th session of the IMO’s Marine Environment Protection Committee in May 2015, the Code could enter force into for EU Member States as early as January 2017.

149  COM(2011) 25 of 2 February 2011. See also, R. Long, “Offshore Renewable Energy Development: Legal Challenges and Policy Conundrums in EU” 34(4) (2014) International Journal of Marine and Coastal Law, pp. 690–715. 150  See European Commission Summary Report prepared by E. Molenaar et al., “Legal Aspects of Arctic Shipping” (Luxembourg: European Commission, 2010). Available at: http://ec.europa.eu/maritimeaffairs/documentation/studies/documents/legal_aspects_ arctic_shipping_summary_en.pdf. 151  Para. 10, Foreign Affairs Council Meeting Brussels, Council conclusions on developing a European Union Policy towards the Arctic Region, 12 May 2014. Available at: http://www .consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/142554.pdf. 152  Para. 9, ibid. 153  See European Commission reply to EP Question 2863/2010, OJ C 138 E, 07.05.2011.

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On the wider landscape of environmental activism, the Arctic Sunrise case demonstrated that the activities of non-governmental organizations (NGOs) are influencing policy decisions in both the EU and the Member States regarding the scale and impacts of future development activities in the Arctic.154 Again the European institutions have been proactive with the European Commission launching a specific project to advance NGO engagement on Arctic environmental issues in a constructive and deliberative manner.155 This of course fully accords with both the letter and the central thrust of the Aarhus Convention ((UNECE), the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters), which is binding on the EU and the Member States.156 Indicatively, the EU proposes using its formidable financial muscle to help meet the “development needs of local populations and offer better opportunities for circumpolar cooperation and research, as well as Arctic economic development”, during the period 2014–2020.157 Indeed, it is through its power as an economic and trade block that the EU can exert the most pressure in Arctic affairs. This became evident in April 2015, when EU anti-trust regulators in the European Commission charged the Russian gas company Gazprom with abusing its dominant market position in the European energy market by forbidding the resale of its gas between EU countries.158 Although the latter case does not have a direct Arctic dimension it does point to the EU closely scrutinizing the market activities of a leading player in Arctic exploration and exploitation activity. Likewise, as seen above, it was through the imposition of trade measures that the EU achieved its animal welfare standards in relation to the regulation of seal hunts. At a much broader strategic level, many of the key issues in the EU’s Arctic policy that ought to be addressed forthwith are highlighted in the Strategic Assessment of Development of the Arctic 2014, which makes several solid recommendations regarding the factors that ought to inform EU action going 154  ITLOS Case No. 21, Arctic Sunrise (Kingdom of the Netherlands v. Russian Federation). 155  See http://arcticngoforum.org. 156  The EC signed the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Århus Convention) in 1998. Council Decision of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, OJ L 124/1, 17.5.2005. 157  Para. 10, Foreign Affairs Council Meeting Brussels, Council conclusions on developing a European Union Policy towards the Arctic Region, 12 May 2014. 158  See “EU Files Formal Charges Against Gazprom for Abuse of Dominant Position Antitrust move by European Commission risks deepening rift with Moscow”, Wall Street Journal, 22.04.2015.

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forward.159 As such, they merit a full assessment in their own right but for reasons of space can only be paraphrased here in so far as they include all of the following: (1) closing the knowledge deficit and gaining a better understanding of the Arctic; (2) constructive engagement with Arctic actors in EU decisionmaking; (3) taking greater account of Arctic diversity in policy formulation and implementation; (4) paying special attention to the European Arctic; and (5) adapting the policy framework to respond to regional governance structures.160 Without doubt, the suggested approach presents a viable blueprint for greater EU engagement. Finally, one should not underestimate the importance of EU secondary legislation in shaping the practice of the Member States and commercial enterprises. Take for example the Preamble to the EU Directive on the safety of oil and gas operations, adopted in response to the Deep Water Horizon disaster in the Gulf of Mexico, which states that the “serious environmental concerns relating to the Arctic waters require special attention to ensure the environmental protection of the Arctic in relation to any offshore oil and gas operation, including exploration, taking into account the risk of major accidents and the need for effective response”.161 In this regard the instrument is prescriptive in that it seeks to engender regional cooperation and capacity building. More specifically, the Preamble encourages EU Member States that are members of the Arctic Council: . . . to actively promote the highest standards with regard to environmental safety in this vulnerable and unique ecosystem, such as through the creation of international instruments on prevention, preparedness and response to Arctic marine oil pollution, and through building, inter alia, on the work of the Task Force established by the Arctic Council and the existing Arctic Council Offshore Oil and Gas Guidelines.162 With this in mind, the Directive requires the European Commission to be tasked with advancing the highest standards in international bodies, including those that are vested with powers with respect to Arctic waters.163 This approach also accords fully with the 2012 Joint Communication, which 159  Op. cit., note 73. 160  Available at http://www.arcticinfo.eu/images/pdf/SADA_report.pdf. 161  Recital 52, Preamble, Directive 2013/30/of 12 June 2013 on safety of offshore oil and gas operations and amending Directive 2004/35/EC, OJ L 178/66, 28.06.2013. 162  Ibid. 163  Article 33(3) ibid.

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mentions specifically EU regulations on the safety of offshore oil and gas prospection, exploration and production as core areas of concern for the EU over the coming decades. 15 Conclusions The EU has important geographical, social, political and economic links with the Arctic. Ironically, as is evident from the discussion above, it is far more involved in the practical aspects of Arctic governance and regulation than China, Singapore, India and some of the other states that hold observer status in the Arctic Council. Apart from obligations that arise under EU law in relation to Finnish and Swedish Lapland (the EU Arctic), there are many other pressing concerns such as the effects of climate change, as well as the environmental risks posed by the petroleum industry and trans-polar shipping, that are forcing the European institutions to look northwards from a policy perspective. Interested parties who are uneasy about the slow pace of intervention by the EU must accept, however, that the regulatory and policy response is complex and entails a broad suite of EU, EEA and international measures. What is more, there are a number of broader geo-political interests at play against the wider background of EU foreign relations, as evidenced by political destabilisation in the Ukraine and Syria, the tragedy of migration and the refugee crises in Europe, that make the European institutions acutely aware that the failure to implement a coherent neighbourhood policy undermines the EU’s status as a global power both politically and economically. In line with its own treaty obligations, moreover, it is important to emphasise that the EU is very much committed to promoting an international system based on the rule of law, multilateral cooperation and good global governance including the resolution of disputes by peaceful means.164 Thus it is unsurprising to see the efforts that are currently underway in the European institutions to strengthen the role of the EU as an actor in Arctic affairs through the adoption and implementation of a distinctive policy in collaboration with its Member States, third countries and the Arctic indigenous communities. In this regard, Finland, Denmark (with respect to Greenland and the Faroe Islands) and Sweden, as well as the EEA states of Norway and Iceland, have a key role to play in driving the process of engagement forward over the coming decade. Accordingly, we can expect to see that the duty to cooperate and the 164  Article 21(2)(h), Treaty on European Union.

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fostering of regional stability will form a core component in the EU’s (revised) Arctic Policy, which the European institutions are scheduled to roll out by December 2015.165 For understandable reasons, one authoritative study has suggested that the EU ought to narrow the focus of its future regulatory and policy actions to areas where it has the greatest influence.166 This may be difficult because, in many instances, the EU approach to Arctic issues is embedded within wider instruments addressing matters of common concern to EU Member States that are pan-European in scope. Therefore it is often difficult to separate out Arctic considerations from the myriad and disparate factors that influence the EU law-making institutions in formulating and implementing EU secondary legislation. The EU does not appear to be interested at this point in time in adopting a framework instrument, that is to say an Arctic treaty, or indeed amending its own treaties to include a specific chapter on the region. Despite the absence of such an approach, the Arctic policy is nonetheless evolving as an important component of the EU’s external relations policy and as a vital theme in the EU’s portfolio of environmental, trade, energy and natural resource measures. In this process, it is easy to conclude that the LOSC and related international agreements provide the over-arching normative framework for the resolution of Arctic governance issues.167 Unremarkably, the EU sees its future role in Arctic governance as largely facilitative and aimed at bolstering existing structures and procedures for regional decision-making. In light of the deterioration in its ongoing relationship with the Russian Federation, however, it is difficult to anticipate how much influence it can exert on circumpolar topics that are outside the scope of the EU and EEA treaties. Nevertheless, if the EU is granted observer status in the Arctic Council during the US Chairmanship in 2015–2017, this of course will greatly facilitate its ongoing contribution to regional cooperation and discharging some of its potential as a constructive and dynamic player in Arctic affairs in the interest of the common good.168 Accordingly, the EU’s Arctic policy should no longer be viewed solely through a lens that focuses on the interests of the EU’s Arctic Member States and other regional stakeholders, but as a thematic topic of crucial concern for all EU citizens. 165  EU Foreign Affairs Council, para. 15, Council conclusions on developing a European Union Policy towards the Arctic Region, Brussels, 12 May 2014. 166  Op. cit. note, at 150. 167  Ibid. para. 3. 168  COM(2008) 763 at 10.

CHAPTER 17

A Note on Arctic Ocean Regional Governance Ted L. McDorman1 Abstract There is no attempt here to repeat or imitate the brilliant work done by Oran Young and others who have long focused on the Arctic and the development of regional models for cooperation, management and governance. Rather, what this contribution seeks to do is to point out, from an international ocean lawyer’s perspective, the state-of-play of the continuing discussion, mostly in the academic literature, of the quest for Arctic Ocean Regional Governance. The context is that there is an ocean governance structure for the Arctic Ocean, but there is no comprehensive regional legal structure or a binding regional organizational structure for the Arctic Ocean. What has transpired thus far is a small number of Arcticspecific agreements that deal with discrete matters. This is a trend that can be expected to continue.

1 Background It is important to note that there are two quite different Arctic Ocean spheres—the Barents Sea and the area north of Europe-Russia (essentially the European Arctic Ocean) and the remainder of the Arctic Ocean north of AsiaRussia, Svalbard-Franz Joseph Land, the United States, Canada and Greenland/ Denmark (the central Arctic Ocean). The former has ports, populations and significant activity; the latter has little coastal infrastructure, coastal population or activity. The Arctic Ocean has had an impressive capacity to capture the attention and imagination of citizens, organizations and governments around the globe over the last decade. This attention has led to, amongst other things:

· an unprecedented global focus on the under 20 year old Arctic Council (still a teenager);

1  Faculty of Law, University of Victoria.

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· a pivot northward within the Arctic States, albeit more profound in some · · · · 2

(Russia, Norway) than others (Canada, United States), with it being unclear whether the pivot is temporary or sustainable; calls by some for a regional treaty based on the iconic 1959 Antarctic Treaty; the important perspective that efforts should be taken to protect for the benefit of all one of the last relatively pristine environments outside of Antarctica; a media narrative of a current or future race for natural resources and consequent maritime disputes leading to naval conflict; and increased scientific interest and operations in the Arctic generally and Arctic waters in particular which has generated new insights on the importance of ice-cover, weather patterns and the effects of global climate change. Perceptions of the Central Arctic Ocean

There are six broad but differing principal perceptions of the central Arctic Ocean.

· It is an area of economic development (hydrocarbon resources, marine living resources); · It is an area with a fragile environment that demands preservation or new/ different approaches to environmental protection; · It is an area of research and study with an eye to understanding the potential global effect for, amongst other things, weather patterns arising from climate change and the loss of Arctic sea ice; It is an area or theatre of strategic/military concern; It is a vessel highway tied to economic development within the region as well as beyond the region; and It is the ocean neighbourhood for the indigenous peoples (and others) who have traditionally inhabited the adjacent land.

· · ·

These different principal perceptions, while not mutually exclusive and sometimes overlapping, do not necessarily hinder discussion of Arctic Ocean governance, but they do (or should) inform the conversation.

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Existing Legal Architecture

The international legal architecture for the Arctic Ocean is in place. This is based primarily on the 1982 UN Convention on the Law of the Sea. Thus, the coastal States of the central Arctic Ocean have the right to and indeed have already put in place 200 nm zones and the Russian Federation, Norway and Denmark/Greenland have indicated areas of the continental shelf beyond 200 nm where they have exclusive resource jurisdiction. While there is no reason why this could not be changed, it is unlikely that it will undergo significant alteration. As is clear in other regions, this does not preclude Arctic Ocean regional governance, though it will influence the approaches to this goal. It is important to emphasize that the central Arctic Ocean is both a national and an international ocean space. The national is the ocean space of Arctic coastal States’ rights and jurisdiction with respect to the resources within their 200 nm zones and those resources of the continental shelf where it extends beyond 200 nm. The international ocean space is the high seas freedoms for all states (marine scientific research, navigation and fishing) that exist beyond the 200 nm of the adjacent Arctic coastal States. Moreover, navigational freedoms for vessels of all states exist within 200 nm and the territorial seas of the adjacent Arctic coastal States as set out in the 1982 Law of the Sea Convention. 4

Differing Players

Account needs to be taken of the differing interests of the differing players and groups of players. There is the so-called A5, Arctic States that are immediately adjacent and have exclusive jurisdiction in areas of the central Arctic Ocean, composed of Canada, Denmark/Greenland, Norway, the Russian Federation and the United States. There is the A8, the Arctic Council States that have land territory within the Arctic and are the Member States of the Arctic Council, which includes the A5 plus Finland, Iceland and Sweden. Within the context of the Arctic Council, there are the indigenous peoples of the Arctic region and their representatives. There are the extra-regional States (including the European Union) that have a scientific interest and those that are the flag States of vessels using Arctic waters. There are international governmental organizations such as the International Seabed Authority (ISBA) which may have a direct resource management role. And there are the non-governmental organizations that promote environmental and habitat protection/preservation and the non-Arctic States that have taken on this concern as their principal engagement with the Arctic Ocean.

a note on arctic ocean regional governance

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Special mention should be made of Russia since it is “the” Arctic State, with the largest capacity (icebreakers, etc.) to undertake activities in the Arctic Ocean while also making the strongest national pivot towards the Arctic. In light of recent events, including the Arctic Sunrise incident, it is far from clear how regionally-minded Russia may choose to be. 5

The Arctic Council

The Arctic Council, through its unique structure, has been able to assure, to a certain degree, that the indigenous peoples of the Arctic play an active role in the work and priority-setting of the Council. The Council has prepared numerous studies, the most relevant of which are the 2009 Arctic Marine Shipping Assessment and the 2014 Arctic Ocean Review. The Arctic Council has been a catalyst for the sectorial agreements on search and rescue and oil spill response and preparedness. Nevertheless, the Arctic Council is not likely in the short term to evolve in terms of institutional growth beyond these functions. The new observers (in particular China and Korea) will add to the Arctic Council as will the newly-established secretariat in Tromsø, but expectations need to be muted. The role of the European Union in the Arctic Council and more generally as regards the central Arctic Ocean is a matter of concern to more than one Arctic State. 6 Conclusion Questions about “establishing,” “improving” or “solidifying” Arctic Ocean governance are going to continue to be important well into the future. The differing perspectives, state interests and groupings, and the unique character of the Arctic Council do not evidence a clear path forward to the Eden of a comprehensive and institutional Arctic Ocean regional governance. Nevertheless, specific sectorial developments can be anticipated for fisheries beyond 200 nm. Also noteworthy are the recently adopted amendments within the International Maritime Organization (IMO) to the MARPOL and SOLAS Conventions that will result in a mandatory Polar Code applying to commercial vessels venturing into Arctic waters.

Part 5 Changing Fisheries: Northeast Atlantic and Arctic Ocean

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CHAPTER 18

Changes in Distribution and Migration of Fish Stocks in the Northeast Atlantic Ocean Due to Climate Variations Jóhann Sigurjónsson1 Abstract Some of the world’s largest pelagic fish stocks are confined to the Northeast Atlantic Ocean, namely the Atlanto-Scandian herring (Clupea harengus) stock, blue whiting (Micromesistius poutassou) and mackerel (Scomber scombrus). The northernmore capelin (Mallotus villosus) stocks play a major role in the ecosystem. Changes in distribution, migratory patterns, abundance and productivity of the pelagic stocks provide challenges for sustainable fishery management. The dynamics of these stocks are governed by primary and secondary production influencing the survival of early life history stages and thus recruitment dynamics as well as the feeding success of older life stages. Climatic variability, acting through ecological and environmental factors, contributes and facilitates displacement of pelagic fish stocks during warm water periods in a poleward direction. Changes in spatial and temporal overlap of these large pelagic fish stocks can also cause variations in interspecific predation pressure and competition for food. These fish stocks support valuable fisheries and over time have shown dramatic fluctuations not only in stock size but also in spatial and temporal distribution. Their management is currently the subject of international disputes. The aim of this paper is to give an overview of recent changes in the migration patterns of large pelagic stocks in the Northeast Atlantic Ocean due to warm water conditions, especially in the Norwegian and Iceland Seas. Some observations as to how climatic variability can affect important demersal species and stocks in northern areas are also discussed. 1  The author is a fisheries scientist and Director General of the Marine Research Institute, Reykjavik, Iceland. The author wants to thank colleagues at the Marine Research Institute, Reykjavik, for assistance during preparation of this paper, particularly Dr. Gudmundur J. Óskarsson who provided various information on mackerel and herring as well as useful comments on the manuscript, and Mr. Hédinn Valdimarsson and Dr. Ólafur S. Ástthórsson who kindly read over the manuscript and made useful suggestions for improvements. The author‘s PowerPoint is available at http://www.virginia.edu/colp/pdf/bergen-sigurjonsson.pdf. Color versions of the illustrations in this paper may be requested from the author: [email protected] © koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004314252_020

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1 Introduction In recent years it has become increasingly evident that man-induced climate change is taking place worldwide which is also impacting the marine biota (IPCC, 2014). The predicted increase in ocean temperature varies between areas and is in the range of 1–2° C in the Northeast Atlantic over the next 50–100 years, but much greater in the Arctic seas—as much as in excess of 10° C (ACIA, 2005). During the last two decades a rise in ocean temperature has been observed in the Northeast Atlantic Ocean, which partly may be linked to global climate change, but beyond doubt is also due to natural variability in ocean conditions (Hátún et al., 2005; Valdimarsson and Jónsson, 2007; Jónsson and Valdimarsson, 2012; Valdimarsson et al., 2012). Concurrent with these ocean climate changes, there have been dramatic changes in fish distribution and abundance throughout the Northeast Atlantic Ocean that have resulted in disputes in the management and sharing of these resources among interested countries. This paper will concentrate on the development of a few important straddling pelagic fish stocks of great commercial interest in Icelandic and adjacent waters, while some other stocks that have changed distribution in recent years or may in the future be straddling across national boundaries and international waters, are also considered. These stocks comprise the so-called pelagic complex in the Northeast Atlantic Ocean, i.e. the Northeast Atlantic mackerel (Scomber scombrus), the Atlanto-Scandian herring (Clupea harengus, also called the Norwegian spring-spawning herring) and the blue whiting (Micromesistius poutassou), and the boreal capelin (Mallotus villosus) stock spawning at Iceland, all large pelagic stocks that have undergone dramatic changes in the past two decades. Also, several demersal stocks that have changed distribution and migration in recent years will be discussed, including cod (Gadus morhua), haddock (Melanogrammus aeglefinus), Greenland halibut (Reinhardtius hippoglossoides) and monkfish (Lophius piscatorius). 2

The Ecosystem Around Iceland, Adjacent Seas and Historical Development

The waters around Iceland have sometimes been claimed to provide large scale laboratory conditions to study the impacts of climate variability on living marine resources. This is due to the fact that the 40,000 sq nm island is surrounded by warm and cold currents and frontal zones resulting in the sea

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FIGURE 18.1

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Ocean currents around Iceland; warm North Atlantic Current (NAC) and the Irminger Current (IC) and the cold East Greenland (EGC) and East Iceland Currents (EIC). The dotted lines show standard oceanographic stations that have been monitored by the Marine Research Institute (MRI), Reykjavik 3–4 times a year for decades. COURTESY OF H. VALDIMARSSON, MRI.

surface temperature ranging from less than −1°C off the northwest coast to 11–12°C at the southeast coast. The oceanographic conditions of the area have been described by Stefánsson (1962), Valdimarsson and Malmberg (1999), Malmberg and Valdimarsson (2003) and Jónsson and Valdimarsson (2012). The sea conditions around the island are dictated by the relative strength of the warm Atlantic water (the North Atlantic current) arriving at the south and west coasts, the East Greenland current bringing cold Polar water southwards along the East Greenland coast and the intermediate East Iceland current arriving at the north and northeastern coasts (Figure 18.1), flowing to the southeast. Variations in the relative strength of these ocean currents, and hence the distribution of the main water masses in the area, have resulted in large temporal variations in the hydrograpic conditions and productivity of North Icelandic waters, and probably also in the Iceland Sea farther north. On the

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other hand, the hydrography of the Atlantic waters south and west of Iceland is more stable (see, e.g., Thórdardóttir, 1984; Ástthórsson and Gíslason, 1998). Vilhjálmsson (1997, 2007) described the Icelandic marine ecosystem and how variable temperature conditions strongly impact the system, where capelin, cod and large cetaceans are major components. Historical changes in the stock size of the Atlanto-Scandian herring stock throughout the northeast Atlantic Ocean and several North Atlantic cod stocks, particularly on the coast of Greenland and Iceland, are probably the most dramatic examples of the impact of natural variations in ocean conditions and seawater temperature on commercially important fish stocks (Jensen, 1939; Jakobsson, 1992; Schopka, 1993; Vilhjálmsson, 1997, 2007; Rose, 2005; Brander, 2010). When considering the potential impact of the global rise in temperature on marine living resources in boreal and Arctic waters, conclusions were partly drawn based upon historical evidence just referred to (ACIA, 2005; Vilhjálmsson et al., 2005; Vilhjálmsson, 2007). While the great influences of climate variations on the living resources in cold frontal boreal waters of the North Atlantic was well known, it was clear that the implications for the Arctic waters that might open up under global climate change was very uncertain. Not the least was this due to a lack of understanding of how exactly a rise in temperature would influence ocean currents and productivity in the high north which hampered proper modelling of potential future scenarios. It was in fact suggested that the increase in yield from fish resources by improved/ proper fisheries management actions was likely to provide greater economic benefit than likely gains due to a predicted rise in temperature. In a paper describing climate variability and the Icelandic marine ecosystem, Ástthórsson et al. (2007; 2012) reported on the main components of the ecosystem around Iceland and the impacts of ocean climate on different aspects of the ecosystem since the mid 1880s. Five climatic periods were identified based on sea temperature (Hanna et al., 2006), which demonstrated non-human induced variations in ocean conditions, that are indeed even more dramatic than the predicted increase of 1–2 °C in the ocean area around Iceland during the next century or so (ACIA, 2005). The periods identified were a cold water period between 1880 and 1920, a warm water period between 1921 and 1964, a cold period between 1965 and 1971, a period with intermediate conditions (alternating warm and cold) between 1972 and 1995, and finally a warm water period from 1996 onwards (Figure 18.2). The warm periods were characterized by a strong influence of the North Atlantic current with warm, saline water reaching to the important nursery grounds north of Iceland, while in the cold periods and the period of intermediate conditions, the influence of the Atlantic water was limited in the area

Changes in Distribution and Migration of Fish Stocks

FIGURE 18.2

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North Iceland sea surface temperature (5 year running mean) 1883–2015 (updated by H. Valdimarsson from Hanna et al., 2006), with clear decadal �luctuations. IMAGE COURTESY OF MRI.

north of Iceland. During the years of limited Atlantic inflow, nutrient transport to the northern shelf is less and there is relatively low primary production in these waters in the summer while the situation is much different with a higher productivity during warm periods (Gudmundsson, 1998). As shown by Ástthórsson and Gíslason (1998) and Ástthórsson et al. (2007), zooplankton biomass variability to the north of Iceland is positively related to temperature and on the average, zooplankton biomass in the warm periods was about two times higher than in the cold periods. 3

Recent Developments in Oceanography and Fish Stocks in the Northeast Atlantic

3.1 Oceanographic Conditions As stated earlier, during the past two decades, a rise in ocean temperature in the Northeast Atlantic Ocean has been observed (Hátún et al., 2005; Valdimarsson and Jónsson, 2007; Holliday et al., 2008). Temperature and salinity have rapidly

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FIGURE 18.3

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Temperature and salinity deviations from the Siglunes section north of Iceland 1970–2015 (averages from 50–150 m depths). IMAGE COURTESY OF MRI.

increased in the Atlantic inflow by the weakening of the eastern subpolar gyre south and west off Iceland to the Fram Strait between Northeast Greenland and Spitzbergen. This warming up is also evident all around Iceland (Valdimarsson et al., 2012) with an increasing temperature and salinity in waters south and west of Iceland since the mid 1990s as well as in the waters north of Iceland since the late 1990s (Figure 18.3). 3.2 The Pelagic Complex Figure 18.4 shows the development of the three large pelagic stocks—the pelagic complex—in the Northeast Atlantic Ocean (ICES, 2014a). During the 1980s the total biomass was 1/3 to 1/2 of what it has been during the last 15 years. One would assume that a likely cause for this development is higher temperature and subsequent increased productivity. However, as shown in Figure 18.4, zooplankton indices in the area declined after the turn of the century which may be due to grazing or simply due to negative impacts of environmental factors on the total production of zooplankton. Utne et al. (2012) studied the horizontal distribution and overlap of the three large pelagic fish stocks during the summers of 1995–2006, where they undertake feeding migrations in the Norwegian Sea. Mackerel was

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FIGURE 18.4

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The development of stocks sizes (spawning stock biomass) of the three large pelagic stocks—mackerel, herring and blue whiting—in the Northeast Atlantic Ocean (ICES, 2014a) and zooplankton index of abundance in the Norwegian Sea during 1987–2014 (based on ICES, 2014b) under intermediate and warm conditions.

generally found in waters warmer than 8° C, while herring and blue whiting were mainly found in water masses between 2 and 8° C. The authors found a restricted overlap in the distribution of herring and mackerel, but blue whiting overlaps with both herring and mackerel (Figure 18.5), even though blue whiting was generally found in deeper waters. In the study years, the three stocks comprised the highest combined biomass on record and apparently migrated northwards during the study period for two reasons. Firstly, the greater combined stock size required an increased habitat range to reduce intraspecific competition as zooplankton abundance decreased, while warmer waters enabled the species to migrate north and westwards using a larger part of the Norwegian Sea during the feeding period. Secondly, the distribution of pelagic coldwater crustaceans, their main food source, moved northwards due to the warmer waters, causing the fish to follow north. The blue whiting feeding habitat expanded in a northwestern direction with an increase in abundance, while strong year classes of mackerel and increasing temperatures throughout the period resulted in an increased abundance of mackerel in the Norwegian Sea. While the decreasing zooplankton densities observed in the Norwegian Sea (Figure 18.4) during the study period was found to be a potential underlying reason for the expansion of the distribution range due to intraspecific competition (Utne et al., 2012), the heavy grazing by the large combined stock size

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FIGURE 18.5

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Overlapping of the distribution of the three pelagic species—Atlanto Scandian herring (left), blue whiting (center) and Northeast Atlantic mackerel (right)—during a feeding migration in the Norwegian Sea in May 2006 ( from Utne et al., 2012). MAPS COURTESY OF K. UTNE.

could have been the reason for a decreasing zooplankton stock. However, after a decade of declining zooplankton densities in the Norwegian Sea, a reversal trend has occurred since 2010 and the total biomass of the three stocks appears now to be rather stable—near 14 million tons in total—compared to 6–8 million tons during the mid 1980s to mid 1990s (ICES, 2014a; 2014b). In recent years, systematic ecosystem surveys were carried out both in May and in July–August during the summer feeding season of the three pelagic stocks (ICES, 2014a; 2015), where the aim was to estimate the abundance of the three species while feeding during the summer in northern waters and to study environmental conditions in this important feeding area of the largest commercial fish stocks in the Northeast Atlantic Ocean. While the AtlantoScandian herring and the blue whiting stocks were only showing gradual changes in distribution (Utne et al., 2012), the Northeast Atlantic mackerel stock has shown dramatic changes, both in distribution range and abundance (ICES, 2012; 2014a). Figure 18.6 shows the distribution and relative density of the pelagic complex during the July–August 2014 survey (ICES, 2014a) compared to the survey conducted in 2012 (ICES, 2012), demonstrating the drastic changes in range towards northern waters and to the west, even into East Greenland waters in the years 2013 and 2014, respectively. The expansion of the mackerel distribution range has been evident in recent years. In 2013, mackerel was recorded for the first time (Berge et al., 2015) near Svalbard (78°15′N, 15°11′E) and Ástthórsson et al. (2012) reported on how mackerel occurred in catches of scientific surveys since 1996 in Icelandic

Changes in Distribution and Migration of Fish Stocks

FIGURE 18.6

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Distribution and relative abundance of the “Pelagic Complex”—mackerel (red), Atlanto-Scandian herring (blue) and blue whiting (yellow)—during July–August 2012 (left) and 2014 (right), respectively (ICES, 2012, 2014a).

waters and in substantial quantities in the catches of the commercial fleet since 2006, amounting to as much as 120–160 thousand tons during the years 2010–2014 (Anon., 2014). The occurrence of mackerel in Icelandic waters was, however, well known from historical records during the warm water periods of the last century (Sæmundsson, 1934; Fridriksson, 1949; Ástthórsson et al., 2012), while it was not subjected to any significant commercial harvest until after the turn of the century. The sudden change of distribution has been attributed to several contributing or co-occurring factors, such as a gradual increase in temperature, changes in feeding conditions, competition with other major pelagic fish stocks in the area, good recruitment and the increasing stock size of the mackerel stock (Ástthórsson et al., 2012; Utne et al., 2012; ICES, 2014a). Figure 18.7 shows the sea surface temperature distribution in the summer feeding grounds of the pelagic stocks during July 2014, expressed as deviations from the past 20 years’ mean temperatures (ICES, 2014a; 2015). Here we see how much in the summer the sea surface water has warmed up, 2–3° C northeast and east of Iceland, but also west of Iceland as far as the East Greenland coast, where there is also marked positive deviation from the long-term mean. The temperature increase was even more marked earlier, particularly in 2012, (Nöttestad et al., 2012) and has been well in excess of what seems to be necessary to suit mackerel during summer migration. In short, the pelagic complex is a major fish resource in the Northeast Atlantic, and a dominating component of the pelagic system in the Norwegian Sea. They are temperature sensitive, undertake long-distance northern feeding

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FIGURE 18.7

Sea surface temperature in July 2012 and July 2014 derived from satellite measurements (NOAA) expressed as °C deviations from the 20-year mean. SOURCE: ICES (2012, 2014A, 2015).

FIGURE 18.8

Body weight (gr) of Northeast Atlantic mackerel by age group in the waters around Iceland during the 2011 season (Óskarsson et al., 2012). IMAGE COURTESY OF MRI.

migrations during the summer and seem to become stronger during warm water periods when they range farther to the north and west. The total combined spawning stock biomass has been in the range of 5–14 million tons. The catches peaked in the range of 3.0–3.5 million tons during the 2003–2005 seasons, and reached a minimum in the range of 2–2.5 million tons during the years 2011–2013, while the current (2014) catch level is around 3 million tons (ICES, 2014a).

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Unfortunately, there is currently no international agreement on the management of the pelagic complex and thus there is much at stake for the fishing industry in Northeast Atlantic countries. The mackerel stock is a subject of great challenge for the managers because the abrupt change of distribution across national boundaries is quite unique. Here one needs to consider various traditional factors for reaching a conclusion on a “fair share” of participating countries. But a more dynamic approach is needed due to abrupt changes of distribution and abundance of fish stocks that can have both severe impacts on fishing possibilities within national fisheries jurisdictions, but also drastic ecological consequences for the changed migratory patterns of other marine life. Figure 18.8 shows the growth of mackerel by age group while occupying Icelandic waters, indicating a more than 40% increase in weight during the feeding migration. The substantial amount of food consumed by mackerel while in the Icelandic EEZ in the summer was estimated at 2.2–3.4 million tons (Óskarsson et al., 2012). This has been referred to as one relevant aspect of the unresolved mackerel dispute that has not been taken into account. 3.3 Capelin, the “Northern Straddler” While the pelagic complex consists of “southern straddlers” expanding their distribution north- and westward during warm water periods as explained above, the large pelagic capelin stocks of the north are true boreal species that may retreat to the north or decrease in size during warm water conditions (Vilhjálmsson, 1994, 2007; Vilhjálmsson and Sigurjónsson, 2004). Prior to the turn of the century, the capelin stock off the coast of Iceland undertook extensive northward feeding migrations into the Iceland Sea in the spring and summer as shown in Figure 18.9A. The return migration took place in September–November and the capelin then assembled near the shelf edge off northwest to northeast Iceland, from where the spawning migration emerged in December–January. In most years, the spawners follow a clockwise direction along the warm-cold water boundary near the shelf break north and east of Iceland, entering the warm Atlantic waters off the southeastern coast. The spawning migration then continues west along the coast to the main spawning grounds off southwest Iceland. Although the above general migration and distribution pattern of the Icelandic capelin (shown in Figure 18.9A) was true for most years during the period 1970–2000, there are large annual variations, both in the extent of the northward feeding migration and in the spawning migration. Such variations have been attributed to environmental variability (Vilhjálmsson, 1994). However, there has been a marked change in distribution and migration after the turn of the century, during which time the stock size has also

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FIGURE 18.9

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Distribution and migration of capelin before (A) and after (B) the year 2000. Light blue: Nursery area; Green: Feeding grounds of adult capelin. Blue arrows indicate feeding migrations and green arrows indicate autumn return migrations toward Iceland waters. Red arrows: Spawning migrations. Violet arrows: 0-group drift (modified after Vilhjálmsson, 2007 and Pálsson et al., 2012). IMAGE COURTESY OF MRI.

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FIGURE 18.10 Capelin Fishable Stock Size 1979–2012 (Anon., 2014). IMAGE COURTESY OF MRI.

decreased (Vilhjálmsson 2007; Pálsson et al., 2012a, 2012b; Anon., 2014). A proposed change of migration is shown in Figure 18.9B. This implies that juveniles apparently spend less time in Icelandic waters and have a more westerly distribution near the coast of East Greenland than during earlier times. Similarly, the rather smaller adult stock (Figure 18.10) has also tended to stay closer to east Greenland. Most likely, the warmer environment has played an important role in the decrease of the capelin stock and its distribution and migration. Figure 18.11 shows how the recruitment has been at a much lower level since the turn of the century compared to earlier years, probably due to first and foremost the prevailing warm water conditions. Extreme, northerly distribution patterns of 0-group capelin, outside the Icelandic continental shelf, was first observed in August 2003 and seems to have prevailed since then (Pálsson et al., 2012b). As in other areas where they occur, capelin play a key role in the marine ecosystem of Icelandic waters as well as in the sea area between Iceland, East Greenland and Jan Mayen. They are not only prey to several marine mammal species and seabirds, but they are also the single most important item in the diet of Icelandic cod and highly important as food for several other commercial fish species in Icelandic and Greenland waters, e.g. Greenland halibut, saithe (Pollachius virens) and haddock (Vilhjálmsson, 1994; Sigurjónsson and

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FIGURE 18.11

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Juvenile capelin (year-class 1 and 2) off Iceland as measured in the fall of the years 1987–2013 (Anon., 2014). IMAGE COURTESY OF MRI.

Víkingsson, 1997; Vilhjálmsson, 2005; Ástthórsson et al., 2007; Víkingsson et al., 2014, 2015). Through this feeding relationship, a huge amount of biomass— millions of tons of capelin—is brought into the continental shelf of Iceland, where it comprises a major food resource. Therefore, variations in the stock size, distribution and migration of capelin markedly impact the marine ecosystem on the continental shelf of Iceland. In contrast, the three species of the pelagic complex migrate into these highly productive waters for summer feeding and fattening and then return back to warmer, low latitudinal waters for overwintering. Thus their ecological role in the marine system around Iceland differs greatly from that of the capelin. 3.4 Environmental Impact on Demersal Stocks The pelagic stocks are relatively responsive to changing environmental conditions, e.g. temperature variations or changes in feeding conditions, since they simply seem to move as conditions change. The demersal stocks are undoubtedly just as sensitive to temperature variability, but they are more attached to locality, the bottom habitat, and may have to adjust to poorer or improved environmental conditions by gradual means over a period of several years. In the last 15–20 years many “new” fish species have been encountered in the bottom trawl surveys conducted regularly in the waters around Iceland (see, e.g., Ástthórsson and Pálsson, 2006; Björnsson et al., 2007; Pálsson, 2010, 2012, 2013 and 2014; Valdimarsson et al., 2005 and 2012). Marked changes have been observed in the distribution of many fish species during this warm period.

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Southern commercial species have extended farther north such as haddock (Valdimarsson et al., 2005; Björnsson et al., 2007) and monkfish (Sólmundsson et al., 2010), rare species and vagrants have been observed more frequently, and 31 species, from both shelf and oceanic waters, have been recorded for the first time since 1996. The most obvious explanation for these changes in the ecosystem is believed to be the warming of 1–2° C in the waters south and west of Iceland during the past 15–20 years (Valdimarsson et al., 2012). Most of the demersal species that have demonstrated a distributional shift are of southern origin and have all been caught in greater quantities than before in the waters north of Iceland during recent years. The most marked changes have occurred with haddock and monkfish. Haddock in the waters south of Iceland have been considered to be at the northern limit of their distribution. Between 1998 and 2003, all year classes except that of 2001 were above average with subsequent increases in stock size. The area of distribution extended farther north along the west coast and onto the northern shelf (Ástthórsson et al., 2007). While the stock dramatically decreased in size in recent years due to a series of poor year classes (Anon., 2014), it is still to a large degree distributed in the northern shelf waters. Until recently, the monkfish was mainly confined to limited areas in the warm water off the south and east coasts of Iceland (see Figure 18.12). Before the turn of the century it was mainly caught as a bycatch in bottom trawls in the lobster fishery, but since 1998 large cohorts have been recruited. The doubling of geographic space of waters above 400m in depth and bottom temperature above 5° C since the mid 1980s, critical conditions for the species to recruit and grow, are believed to be the main reason for the dramatic increase in the stock size after the year 2000 (Sólmundsson et al., 2007, 2010). As noted above, the warm water newcomers have been documented during the changed sea conditions of the last two decades around Iceland in the annual MRI groundfish survey (Björnsson et al., 2007; Valdimarsson et al., 2012). Also, many species occurring in earlier years in the area have been observed in greater abundance in the groundfish survey in recent years. However, a complete disappearance of some coldwater species from the area during the recent warming has not been demonstrated, while the decreased occurrence of Greenland halibut in the surveys is believed to be a likely response to warmer sea conditions. Stefánsdóttir et al. (2010) studied the groundfish species diversity and assemblage structure in Icelandic waters during the years of warming and demonstrated significant changes that took place. They reported limited changes in the assemblages or fish communities before and after warming, but the species richness increased substantially with temperature and time southwest off Iceland, but decreased at the northeast coast.

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FIGURE 18.12

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Temporal and spatial change of the distribution of the monkfish stock around Iceland during an MRI groundfish survey 1985 to 2009. After Sólmundsson et al., 2010. IMAGE COURTESY OF MRI.

Future Perspectives

It is important to keep in mind that although a global rise in temperature is likely to continue, the amplitude in natural variations in ocean conditions can counteract these global changes to such a degree that we may still undergo a cooling of the ocean temperature in the area around Iceland rather than continued warm conditions (ACIA, 2005). This can in fact happen at relatively short notice, like the onset of the coldwater period during the mid 1960s (Malmberg and Valdimarsson, 2003). At the writing of this paper, the late winter and spring have been cold in Iceland and the relatively cold sea surface temperature during the MRI spring survey (late May 2015) around Iceland could be an indication of cooler conditions and a reversal trend. Although it is too early to conclude on this, it could mean that the current warm period is only half as long as the warm period that lasted 45 years from 1920 through the mid 1960s. But if the warmwater period continues and temperatures rise further, it is clear that we will experience major shifts in the distribution and abundance

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of fish communities in the Northeast Atlantic. Although one would assume that improved fisheries management is likely to provide greater economic benefits from the fisheries than at present, economic gains due to predicted temperature rise can be substantial. In fact, if we just consider the shifts in the pelagic complex, the potentials are evident. These three pelagic stocks are likely candidates to invade the northern and Arctic seas under continued warm conditions, especially since they are not restricted to continental shelves, although reproduction and feeding may depend on conditions and productivity in the shelf areas during feeding. The same applies to capelin stocks, which might increase in size and productivity with new feeding areas farther in the north, although capelin will always depend on shallow waters to spawn. Not many other North Atlantic pelagic stocks seem to be strong candidates for a dramatic increase in stock sizes and geographic expansion under the continued warmwater regime. Trenkel et al. (2014) reported on a comparative study on the ecology of widely distributed pelagic fish stocks in the North Atlantic with special reference to climatic and fisheries impacts. The review covered species that have been discussed in this paper, i.e. the herring, blue whiting, mackerel and capelin, as well as horse mackerel (Trachurus trachurus) and several large pelagics, including the bluefin tuna (Thunnus alalunga). Considering the ecology of these species, the large pelagics will probably not represent a great potential in terms of increased biomass under the warmwater regime. The horse mackerel, however, is perhaps the remaining species not dealt with above that may be affected under changed environmental conditions. Nevertheless, its natural history parameters, including long lifespan (maximum age 40 years), limit the scope of the species when compared to the highly productive and dynamic pelagic complex and the capelin. The maximum yields of the stock in recent years has been in the range of 100–200 thousand tons (ICES, 2014a), in contrast to the much greater yields of the three warmwater pelagic stocks here under consideration. The species is found from the southern Norwegian coast to Mauritania and across the whole Mediterranean Sea, overlapping widely with mackerel and blue whiting. The pelagic stocks are obviously likely candidates to generate great displacements in biomass under climate change and thus become a constant subject for international managers to deal with. Demersal species will probably not place the same burden on future managers, although several demersal stocks may cross national boundaries due to climatic reasons and may require joint management measures by two or more neighbouring countries. Hollowed et al. (2013) studied the potential movements of fish stocks from the sub-Arctic to the Arctic Ocean, where the potential for expansion or movement into the Arctic was qualitatively ranked (low potential, potential, high

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potential). It is predicted that the Arctic Ocean will become ice-free during the summer season in coming decades, and when this happens new areas will open up for plankton production. This may lead to new feeding areas for fish stocks. Six species were considered as potential candidate species to move to, or expand in, the high Arctic. These were the Greenland halibut, the AtlantoScandian herring, the capelin, the yellowfin sole (Limanda aspera) and the Alaska plaice (Pleuronectes quadrituberculatus), respectively. These stocks were believed to exhibit life-history characteristics that allow them to survive challenging environmental conditions that will continue to prevail in the north under changing climate conditions on the basis of several significant life-history factors. The same study identified the Beaked redfish (Sebastes mentella), the Greenland shark (Somniosus microcephalus), the Arctic skate (Amblyraja hyperborea), the polar cod (Boreogadus saida), and the Bering flounder (Hippoglossoides robustus) as having high potential for movement to the Arctic shelf seas. These five species had a high potential for establishing viable resident populations in the region, since they exhibited life-history characteristics that allow them to survive challenging environmental conditions. This qualitative assessment of potentials for demersal fish stocks is useful in the sense that it reveals what dictates and restricts their scope of survivorship. When considering the general biology and life history of these species, however, it becomes clear that none of these species, perhaps with the exception of the redfish (Sebastes spp.) stocks, will provide substantial additional yields in terms of biomass. And in fact, this qualitative assessment categorizing capelin and herring only as potential candidates in this context appears questionable in light of the very recent experience where these and other stocks have exhibited great dynamic changes under varying environmental conditions in northern waters. While redfish stocks are very likely candidates to cross the EEZs of Northeast Atlantic countries, saithe, cod and Greenland halibut are species that may or already have crossed national boundaries and will sooner or later have to be addressed by national authorities for sharing and common management to safeguard the sustainable use of these resources. References ACIA, Arctic Climate Impact Assessment, Cambridge University Press, 2005, 1042 pp. Anon., ‘Nytjastofnar sjávar 2013/2014. Aflahorfur fiskveiðiárið 2014/2015 (State of Marine Stocks in Icelandic Waters 2013/2014. Prospects for the Quota Year 2014/2015’. In Icelandic with English subtitles). Hafrannsóknir (Marine Research in Iceland) nr. 176 (2014).

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Ástthórsson, Ó.S., and Gíslason, Á. ‘Environmental conditions, zooplankton, and capelin in the waters north of Iceland’, ICES Journal of Marine Science 55 (1998), 808–810. Ástthórsson, Ó.S., Pálsson, J., ‘New fish records and records of rare southern fish species in Icelandic waters in the warm period 1996–2005’, ICES Document CM 2006/C: 20 (2006), 22 pp, unpublished paper. Ástthórsson, Ó.S., Gíslason, Á., and Jónsson, S., ‘Climate variability and the Icelandic marine ecosystem’, Deep Sea Res. II 54 (2007, 23–26), 2456–2477. Ástthórsson, Ó.S., Valdimarsson, H., Gudmundsdóttir, Á., and Óskarsson, G.J., ‘Climaterelated variations in the occurrence and distribution of mackerel (Scomber scombrus) in Icelandic waters’, ICES Journal of Marine Science 69 (2012, 7), 1289–1297. Berge, J., Heggland, K., Lönne, O.J., Cottier, F., Hop, H., Gabrielsen, G.W., Nöttestad, L. and Misund, O.A., ‘First records of Atlantic mackerel (Scomber scombrus) from the Svalbard Archipelago, Norway, with possible explanations for the extension of its distribution’, Arctic 68 (2015, 1), 54–61. Björnsson, H., Sólmundsson, J., Kristinsson, K., Steinarsson, B.Æ., Hjörleifsson, E., Jónsson, E. and Pálsson, J., ‘The Icelandic groundfish surveys in March 1985–2006 and in October 1996–2006’, Hafrannsóknastofnunin Fjölrit No 131 (2007), 1–220 (in Icelandic with English summary). Brander, K., ‘Impacts of climate change on fisheries’, Journal of Marine Systems 79 (2010), 389–402. Fridriksson, Á., ‘Boreo-tended changes marine vertebrate fauna of Iceland during last 25 years’, Rapports et Proce‘s-Verbaux des Re’unions du Conseil International pour l’Exploration de la Mer 125 (1949), 30–32. Gudmundsson, K., ‘Long-term variation in phytoplankton productivity during spring in Icelandic waters’, ICES Journal of Marine Science 55 (1998), 635–643. Hanna, E., Jónsson, T., Ólafsson, J., and Valdimarsson, H., ‘Icelandic coastal sea surface temperature records constructed: putting the pulse on air-sea-climate interactions in the northern North Atlantic. 1. Comparison with HadISST1 open ocean surface temperatures and preliminary analysis of long-term patterns and anomalies of SST around Iceland’, Journal of Climate 19 (2006), 5652–5666. Hátún, H., Sandø, A.B., Drange, H., Hansen, B., and Valdimarsson, H, ‘Influence of the Atlantic Subpolar Gyre on the thermohaline circulation’, Science 309 (2005), 1841–1844. Holliday, N.P., Holliday, N.P., Hughes, S.L., Bacon, S., Beszczynska-Möller, A., Hansen, B., Lavin, A., Loeng, H., Mork, K.A., Østerhus, S., Sherwin, T. and Walczowski, W., ‘Reversal of the 1960s to 1990s freshening trend in the northeast North Atlantic and Nordic Seas’, Geophysical Research Letters, 35 (2008), L03614. (doi:10.1029/2007GL032675). Hollowed, A.B., Planque, B., and Loeng, H., ‘Potential Movement of Fish and Shellfish Stocks from the sub-Arctic to the Arctic Ocean’, Fish. Oceanogr 22 (5, 2013), 355–370. ICES, ‘Report of the Working Group on Widely Distributed Stocks (WGWIDE), 21–27 August 2012’, ICES CM 2012/ACOM:1 (2012), 940 pp.

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———, ‘Report of the Working Group on Widely Distributed Stocks (WGWIDE), 26 August–1 September 2014’, ICES CM 2014/ACOM:15 (2014a), 971 pp. ———, ‘Second Interim Report of the Working Group on Integrated Assessments of the Norwegian Sea (WGINOR)’, ICES CM 2014/SSGRSP:07 (2014b), 25 pp. ———, ‘Report of the Working Group of International Pelagic Surveys (WGIPS)’, ICES CM 2015/SSGIEOM:05, (2015), 279 pp. IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Barros, V.R., C.B. Field, D.J. Dokken, M.D. Mastrandrea, K.J. Mach, T.E. Bilir, M. Chatterjee, K.L. Ebi, Y.O. Estrada, R.C. Genova, B. Girma, E.S. Kissel, A.N. Levy, S. MacCracken, P.R. Mastrandrea, and L.L. White (eds.). Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, 2014, 688 pp. Jakobsson, J., ‘Recent variability in the fisheries of the North Atlantic’, ICES Mar.Sci. Symp. 195 (1992), 291–315. Jensen, A.S., ‘Concerning a change of climate during recent decades in the Arctic and SubArctic regions, from Greenland in the west to Eurasia in the east, and contemporary biological and geophysical changes’, Biologiske Meddelelser. Kongelige Danske Videnskabers Selskab XIV (1939), 75 pp. Jónsson, S. and Valdimarsson, H., ‘Water mass transport variability to the north Icelandic shelf, 1994–2010’, ICES Journal of Marine Science (2012), doi:10.1093/ icesjms/fss024. Malmberg, S. Aa. and Valdimarsson, H., ‘Hydrographic conditions in Icelandic waters 1990–1999’, in: Turrell et al. (eds.), Hydrobiological Variability in the ICES Area, 1990–1999, ICES Marine Science Symposia 219, (2003), 50–60. Nøttestad L, Utne, K.R., Anthonypillai, V., Tangen, Ø., Valdemarsen, J.W., Óskarsson, G.J., Sveinbjörnsson, S., Jónsson, S., Ingólfsson, Ó.A., Debes, H., Mortensen, E., Smith, L., Jacobsen, J.A., Zachariassen, K., ‘Cruise report from the coordinated ecosystem survey (IESSNS) with R/V ”G.O. Sars”, M/V “Brennholm”; M/V “Christian í Grótinum” and R/V “Arni Fridriksson” in the Norwegian Sea and surrounding waters, 1 July– 10 August 2012’, Working Document to ICES Working Group on International Pelagic Surveys (WGIPS) (2012), 50 pp. Óskarsson, G.J., Sveinbjörnsson, S., Gudmundsdóttir, Á, and Sigurdsson, Th., ‘Ecological Impacts of Recent Extension of Feeding Migration of NE Atlantic Mackerel into the Ecosystem around Iceland’, ICES CM 2012/M:03 (2012), 25 pp., unpublished paper. Pálsson, J., ‘Sjaldséðir fiskar á Íslandsmiðum 2009’, Ægir No. 103 (8, 2010), 12–13. ———, ‘Sjaldséðir fiskar á Íslandsmiðum 2010’, Ægir No. 105 (2012), 10–12. ———, ‘Sjaldséðir fiskar á Íslandsmiðum 2011’, Ægir No. 106 (2013), 10–12. ———, ‘Sjaldséðir fiskar á Íslandsmiðum 2012 og 2013’, Ægir No 107 (2014), 14–16.

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Pálsson, Ó.K., Gíslason, Á., Gudfinnsson, H.G., Gunnarsson, B., Ólafsdóttir, S.R., Pétursdóttir, H., Sveinbjörnsson, S., Thórisson, K., and Valdimarsson, H., ‘Ecosystem structure in the Iceland Sea and recent changes to the capelin (Mallotus villosus) population’, ICES J. Mar. Sci. 69(2012a, 7), 1242–1252. Pálsson, Ó.K., Sveinbjörnsson, S., Valdimarsson, H., Gíslason, Á. and Vilhjálmsson, H., ‘Capelin life-history traits in the Iceland Sea’, Marine Research in Iceland No. 164 (2012b), 119–132. Rose, G.A., ‘On distributional responses of North Atlantic fish to climate change’, ICES Journal of Marine Science 62 (2005), 1360–1374. Sæmundsson, B., ‘Probable influence of changes in temperature on the marine fauna of Iceland’, Rapports et Proce‘s-Verbaux des Re’unions du Conseil Permanent International pour l’Exploration de la Mer 86 (1934), 1–6. Schopka, S.A. ‘The Greenland cod (Gadus morhua) at Iceland 1941–90 and their impact on assessment’, NAFO Scientific Council Studies 18 (1993), 81–85. Sigurjónsson, J. and Víkingsson, G.A.., ‘Seasonal Abundance of and Estimated Food Consumption by Cetaceans in Icelandic and Adjacent Waters’, J. Northw.Atl. Fish. Sci. 22 (1997), 271–287. Sólmundsson, J., Björnsson, H., Jónsson, E., ‘Recent changes in the distribution and abundance of monkfish (Lophius pisatorius) in Icelandic waters’, ICES CM 2007/K:02 (2007), 16 pp, unpublished paper. ———, ‘Phase transition in recruitment and distribution of monkfish (Lophius piscatorius) in Icelandic waters’, Marine Biology 157 (2010), 295–305. Stefánsson, U., ‘North Icelandic waters’, Rit Fiskideildar 12, 1–56. Thórdardóttir, Th., ‘Primary production north of Iceland in relation to watermasses in May–June 1970–1980’, ICES C.M. 1984/L:20 (1984), unpublished paper. Trenkel, V.M., Huse, G., MacKenziec, B.R., Alvarez, P., Arrizabalaga, H., Castonguay, M., Goñi, N., Grégoire, F., Hátún, H., Jansen, T., Jacobsen, J.A., Lehodey, P., Lutcavage, M., Mariani, P., Melvin, G.D., Neilson, J.D., Nøttestad, L., Óskarsson, G.J., Payne, M.R., Richardson, D.E., Senina, I. and Speirs, D.C., ‘Comparative ecology of widely distributed pelagic fish species in the North Atlantic: implications for modelling climate and fisheries impacts’, Progress in Oceanography 129 (2014), 219–243. Utne, K.R., Huse, G., Ottersen, G., Holst, J.C., Zabavnikov, V., Óskarsson, G.J., and Nøttestad, L., ‘Horizontal distribution and overlap of planktivorous fish stocks in the Norwegian Sea during summers 1995–2006’, Marine Biology Research 8 (2012), 420–441. Valdimarsson, H. and Malmberg, S.A., ‘Near-surface circulation in Icelandic waters derived from satellite tracked drifters’, Rit Fiskideildar 16 (1999), 23–39. Valdimarsson, H. and Jónsson, S., ‘Time series and hydrographic variability in Icelandic waters’, in: Bacon, Holliday and Cattle (eds.), The Oceanography of the North Atlantic and adjacant Seas, CLIVAR Exchanges 12 (2007), 23–24.

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Valdimarsson, H., Björnsson, H. and Gudmundsson, K. ‘Climatic variability in Icelandic waters and effects on marine biota’, Hafrannsóknastofnunin Fjölrit No. 116 (2005), 23–28 (in Icelandic with English summary). Valdimarsson, H., Ástthórsson, Ó.S. and Pálsson, J., ‘Hydrographic variations in Icelandic waters during recent decades and related changes in some fish stocks’, ICES Journal of Marine Science 69 (2012), 816–825. Víkingsson, G.A., Elvarsson, B.Th., Ólafsdóttir, D., Sigurjónsson, J., Chosson, V. and Galan, Á., ‘Recent changes in the diet composition of common minke whales (Balaenoptera acutorostrata) in Icelandic waters. A consequence of climate change?’, Marine Biology Research 10 (2014, 2), 138–152. Víkingsson, G.A., Pike, D.G., Valdimarsson, H., Schleimer, Á., Gunnlaugsson, Th., Silva, T., Elvarsson, B.Th., Mikkelsen, B., Øien, N., Desportes, G., Bogason, V. and Hammond, P.S., ‘Distribution, abundance and feeding ecology of baleen whales in Icelandic waters: Have recent environmental changes had an effect?’, Frontiers in Ecology and Evolution 3 (2015, 6), 1–18. Vilhjálmsson, H. ‘The Icelandic capelin stock. Capelin, Mallotus villosus (Müller) in the Iceland–Greenland–Jan Mayen Area’, Rit Fiskideildar 13 (1994), 1–281. ———, ‘Climatic variations and some examples of their effects on the marine Ecology of Icelandic and Greenland waters, in particular during the present century’, Rit Fiskideildar 13 (1997), 9–29. ———, ‘Impact of changes in natural conditions on ocean resources’, LawSci. OceanManage. 11 (2007), 225–269. ———, ‘Interactions between capelin (Mallotus villosus) and other species and the significance of such interactions for the management and harvesting of marine ecosystems in the northern North Atlantic.’ Rit Fiskideildar 15 (2005, 1), 31–63. Vilhjálmsson, H. and Sigurjónsson, J., ‘Capelin of the Iceland-East Greenland-Jan Mayen area: Biology, exploitation and management’, in: Bjordal, Gjösæter, Mehl (eds.): Management strategies for commercial marine species in northern ecosystems. Proceedings of the 10th Norwegian-Russian Symposium, 2004, pp. 16–24. Vilhjálmsson, H., Hoel, A.H., Agnarsson, S., Árnason, R., Carscadden, J.E., Eide, Á., Fluharty, D., Hønneland, G., Hvingel, C., Jakobsson, J., Lilly, G., Nakken, O., Radchenko, V., Ramstad, S., Schrank, W., Vestergaard, N., Wilderbuer, T., ‘Fisheries and aquaculture’, in: Arctic Climate Impact Assessment Report, Cambridge University Press, 2005, pp. 691–780.

CHAPTER 19

International Regulation of Central Arctic Ocean Fisheries Erik J. Molenaar1 Abstract Due in particular to the impacts of climate change, the adequacy of the international regulation of Central Arctic Ocean fisheries has come under increasing scrutiny in recent years. As shown in this chapter, however, international regulation of Central Arctic Ocean fisheries is by no means entirely absent. The global component of international fisheries law applies to the entire (Central) Arctic Ocean, however defined. Furthermore, even the Central Arctic Ocean is already subject to actual regional or subregional fisheries regulation. After providing a concise overview of the global component of international fisheries law and Arctic fisheries instruments and bodies, the chapter focuses on the evolving regional law on Arctic Ocean fisheries. Particular attention is devoted to the efforts of the Arctic Ocean coastal States (Arctic Five) on Arctic Ocean fisheries so far—including their key meeting in Nuuk, in February 2014, and their ‘Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean’ signed in Oslo on 16 July 2015—and the “broader process” involving “all interested States” envisaged in the 2015 Oslo Declaration. Among the issues examined are the relationship between the Arctic Five’s commitments and existing regional fisheries management organizations or arrangements, and the consistency of the Arctic Five’s process, including the ‘lead role’ claimed by them, with applicable international fisheries law.

1  Deputy Director, Netherlands Institute for the Law of the Sea (NILOS), Utrecht University & Professor, K.G. Jebsen Centre for the Law of the Sea (JCLOS), University of Tromsø; email: [email protected]. Writing this chapter was made possible by funding from the Netherlands Polar Programme. The author is very grateful for assistance and/or comments received from Nigel Banks, Richard Caddell, Henning Dobson Knudsen, Alf Håkon Hoel, Alex Oude Elferink, Rosemary Rayfuse and Seamus Ryder on an earlier version. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/bergen-molenaar.pdf.

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1 Introduction The international law on Arctic fisheries has—in particular due to climate change—attracted ever more attention in recent years. Climate change may give rise to new fishing opportunities in the Arctic due to receding sea-ice and poleward shifts of fish stocks as well as projected species invasions. At the same time, receding sea-ice could also have negative impacts on some Arctic fish stocks. Moreover, increased fresh-water inflow and pollution—in particular from Russian rivers—as well as the possibility of ocean-acidification, could act as a counterbalance to new fishing opportunities that may arise, leading potentially to an actual decrease.2 Sea-ice regression in the Arctic means at any rate that the North Pacific and the North Atlantic Oceans will become increasingly connected.3 Together with merchant shipping, this creates a pathway for the introduction of invasive species. One of these pathways has facilitated the settlement and rapid increase in the abundance of snow crab (Chionoecetes opilio) in the Barents Sea in recent years.4 The potential for large-scale, commercially viable fisheries in the Arctic Ocean, defined below, including in its high seas part (further: ‘Central Arctic Ocean’), has been debated in recent years.5 In early 2014, the five Arctic Ocean coastal States—Canada, Denmark/Greenland, Norway, the Russian Federation, and the United States (also: Arctic Five)—took the view that such fisheries in 2  J.S. Christiansen, C.W. Mecklenburg and O.V. Karamushko, “Arctic Marine Fishes and their Fisheries in Light of Global Change”, 20 Global Change Biology 352–359 (2014); M.C. Jones and W.W.L. Cheung, “Multi-model Ensemble Projections of Climate Change Effects on Global Marine Biodiversity”, ICES Journal of Marine Science, of 10 October 2014. See also Arctic Biodiversity Assessment. Status and Trends in Arctic Biodiversity (CAFF: 2013; available at ), Ch. 1, pp. 22–23. 3  M.S. Wisz et al., “Arctic Warming Will Promote Atlantic-Pacific Fish Interchange”, Nature Climate Change, 26 January 2015. 4  J.H. Sundet and S. Bakanev, “The Invasive Snow Crab (Chionoecetes opilio), A New and Expanding Component of the Barents Sea Ecosystem” (forthcoming in 2015). In September 2014, the Lithuanian-flagged fishing vessel Jūros Vilkas was arrested by the Russian Federation for allegedly fishing without a license for snow crab in the Russian Exclusive Economic Zone (EEZ). This eventually led to an Extraordinary Meeting of the North-East Atlantic Fisheries Commission (NEAFC) on 22 October 2014. 5  A.B. Hollowed, B. Planque and H. Loeng, “Potential Movement of Fish and Shellfish Stocks from the Sub-Arctic to the Arctic Ocean”, 22 Fisheries Oceanography 355–370 (2013). See also Report of a Meeting of Scientific Experts on Fish Stocks in the Arctic Ocean. Anchorage, Alaska, June 15–17, 2011 (on file with author); Report of 2nd Scientific Meeting on Arctic Fish Stocks, Tromsø, 28–31 October 2013 (on file with author); and Final Report. Third Meeting of Scientific Experts on Fish Stocks in the Central Arctic Ocean (on file with author).

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the Central Arctic Ocean were “unlikely to occur in the near future”.6 As this chapter will show, however, this expectation has not stopped the Arctic Five from engaging in multilateral discussions on Central Arctic Ocean fisheries. This chapter will focus on marine capture fisheries in the Arctic, without devoting attention to freshwater fisheries, aquaculture, and marine mammals as target species. A number of (potentially) significant commercial fish species currently occur in the marine Arctic (defined below). While the ranges of distribution of some of these are confined to the North Pacific or the North Atlantic, others have a circumpolar distribution. Important North Pacific fish species include Alaska pollock (Theragra chalcogramma), Pacific cod (Gadus macrocephalus), snow crab and various Pacific salmon species (Oncorhynchus spp.). As regards the North Atlantic, important fish species include North-East Arctic cod (Gadus morhua), haddock (Melanogrammus aeglefinus), Norwegian spring-spawning (Atlanto-scandian) herring (Clupea harengus), Atlantic salmon (Salmo salar) and red king crab (Paralithodes camtschaticus). Significant circumpolar fish species include capelin (Mallotus villosus), Greenland halibut (Reinhardtius hippoglossoides) and northern shrimp (Pandalus borealis). Polar cod and Arctic char (Salvelinus alpinus) also have circumpolar distribution, but the former is only marginally targeted by commercial fisheries and the latter is predominantly fished for subsistence purposes. There are no generally accepted geographical definitions for the terms ‘Arctic’, ‘marine Arctic’ and ‘Arctic Ocean’. For the purpose of this chapter, the term ‘marine Arctic’ corresponds to the marine waters included within the boundary agreed by the Arctic Council’s Conservation of Arctic Flora and Fauna (CAFF) working group (see Figure 19.1 below). The ‘Arctic Ocean’ is defined in this chapter as the marine waters north of the Bering Strait, Greenland, Svalbard, and Franz Josef Land, excluding the Barents Sea. There are four high seas pockets in the marine Arctic, namely the so-called ‘Banana Hole’ in the Norwegian Sea, the so-called ‘Loophole’ in the Barents Sea, the socalled ‘Donut Hole’ in the central Bering Sea, and the Central Arctic Ocean.7 6  Meeting on Arctic Fisheries. Nuuk, Greenland, 24–26 February 2014, Chairman’s Statement (2014 Nuuk Meeting; available at ), at p. 1. See also ‘Summary Report Prepared for the “Devising Seminar on Arctic Fisheries”, hosted by the Program on Negotiation at Harvard Law School, September 18–19, 2014’ (available at at p. 4 which comes to a similar conclusion. 7  However, the Arctic Ocean coastal States use the phrase “high seas area of the central Arctic Ocean” (cf. the Meeting on Future Arctic Fisheries. Washington, DC April 29–May 1. Chairman’s Statement (2013 Washington Meeting; available at ) and the Chairman’s Statement of the 2014 Nuuk Meeting, note 6 supra; see also

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FIGURE 19.1

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The Arctic Region: General Overview. Map prepared by David Swanson and reproduced here with his permission.

In addition to the five Arctic Ocean coastal States, Finland, Iceland, and Sweden are ‘Arctic States’ on account of their membership in the Arctic Council. As Iceland is a coastal State to the marine Arctic as defined in this chapter, it qualifies as an ‘Arctic coastal State’. The Arctic Five obviously also qualify as such. Some specific comments on Denmark are warranted here. The Kingdom of Denmark consists of three parts: ‘mainland’ Denmark, the Faroe Islands and note 82 infra). Accordingly, their definition of the Central Arctic Ocean comprises a considerably larger area than this chapter’s definition.

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Greenland. These three parts constitute the Danish Realm. The Kingdom of Denmark is an Arctic Ocean coastal State exclusively on account of Greenland, and an Arctic coastal State on account of the Faroe Islands. As a Member State of the European Union (EU), the Kingdom of Denmark is bound to the EU’s exclusive competence in the conservation and management of marine capture fisheries. However, its EU Membership does not extend to the Faroe Islands and Greenland, and these two parts of the Kingdom are to a large extent autonomous with regard to marine capture fisheries. Treaties and membership in international organizations are nevertheless negotiated and entered into by the Kingdom in respect of all or parts of the Kingdom. While Greenlandic fishing vessels operate predominantly in the maritime zones off Greenland, Faroese fishing vessels also operate to a significant extent beyond the maritime zones off the Faroe Islands. This is not limited to the North-East and North-West Atlantic,8 but also includes the South Pacific. Here, Faroese fishing vessels operate in the regulatory area of the South Pacific Regional Fisheries Management Organization (SPRFMO),9 of which the Kingdom of Denmark is a Member in respect of the Faroe Islands.10 In 2010–2011, the Faroe Islands also expressed an interest in fishing in the high seas of the North Pacific and claimed to have a right to become a Member—through the Kingdom—of the North Pacific Fisheries Commission (NPFC).11 At the time of writing in August 2015, large-scale commercial fisheries were taking place in the Barents and Bering Seas. The fisheries that occurred in the Arctic Ocean were essentially limited to small-scale subsistence fisheries in

8  For this purpose, Denmark participates in respect of the Faroe Islands (and Greenland) in NEAFC as well as in the Northwest Atlantic Fisheries Organization (NAFO). Denmark is also a Member of the North Atlantic Salmon Conservation Organization (NASCO) in respect of the Faroe Islands and Greenland. NASCO Members are prohibited from engaging in high seas fishing for Atlantic salmon. 9   Established by the SPRFMO Convention (Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Auckland, 14 November 2009. In force 24 August 2012; ). 10 Information available at . 11  The NPFC was established upon the entry into force of the NPFC Convention (Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, Tokyo, 24 February 2012. In force 19 July 2015; text available at ). The Faroe Islands participated in the 8th and 9th Multilateral Meetings on the Management of High Seas Fisheries in the North Pacific Ocean (Jan. and Sep. 2010), which culminated in the adoption of the NPFC Convention (see Records of these Meetings available at ).

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coastal State maritime zones. No fisheries occurred at all in the Central Arctic Ocean. This chapter continues with a concise overview of the international fisheries law context by means of sections 2 and 3 on ‘The Global Component of International Fisheries Law’ and ‘Arctic Fisheries Instruments and Bodies’ respectively. Subsequently, the discussion focuses on ‘The Evolving Regional Law on Arctic Ocean Fisheries’ in section 4, which contains subsections entitled ‘In Search of a Suitable Mechanism’, ‘The Arctic Ocean Coastal States Process on Arctic Ocean Fisheries’, ‘The Substantive Outcome of the 2014 Nuuk Meeting’, ‘The 2015 Oslo Declaration’—which was included just prior to the editing stage—and ‘The Envisaged Broader Process on Central Arctic Ocean Fisheries’. The chapter ends with section 5 on ‘Conclusions’. 2

The Global Component of International Fisheries Law

International fisheries law is the body of international law that relates specifically to the conservation, management and/or development of capture fisheries. It consists of substantive norms (e.g. rights and obligations), substantive fisheries standards (e.g. catch restrictions) as well as institutional rules and arrangements (e.g. mandates and decision-making procedures of international bodies). International fisheries law is part of general international law and can also be seen as a branch or part of the international law of the sea. The global component of international fisheries law applies to the marine Arctic and the (Central) Arctic Ocean, however defined. The cornerstone in the global jurisdictional framework for marine capture fisheries is provided by the LOS Convention,12 which provides for the division of seas and oceans in maritime zones and specifies the basic rights and obligations of States therein. Apart from archipelagic waters, all the common maritime zones also occur in the Arctic. The division of the marine Arctic in maritime zones is therefore essentially the same as in other seas and oceans, except for the Southern Ocean due to the dispute on sovereignty over Antarctic territory. A maritime zone that is unique to the Arctic is the Fisheries Protection Zone (FPZ) established by Norway off Svalbard.13 12  United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994, 1833 United Nations Treaty Series 396; . 13  While Libya and Spain have also established FPZs, these are really de facto exclusive fishery zones (EFZs) (see E.J. Molenaar, “New Maritime Zones and the Law of the Sea”, in H. Ringbom (ed.) Jurisdiction over Ships—Post-UNCLOS Developments in the Law of the Sea (Brill/Nijhoff: 2015), pp. 249–277, at pp. 256–258.

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The LOS Convention regulates the exercise of entitlements to fishing that States have in their capacities as coastal or flag States, through various key obligations. Due to the adoption of other global fisheries instruments, in particular the Fish Stocks Agreement,14—an implementation agreement of the LOS Convention—several legally binding and non-legally binding instruments adopted by the United Nations Food and Agriculture Organization (FAO) as well as certain (parts of) United Nations General Assembly (UNGA) Resolutions, these key obligations have gradually developed into the following: 1. 2. 3.

4. 5.

To avoid over-exploitation of target species by means of setting a sciencebased total allowable catch (TAC), which strives for maximum sustainable yield (MSY) as qualified by the precautionary approach; To strive for the optimum utilization of target species within the EEZ or exclusive fishery zone (EFZ) by providing other States with access to the surplus of the TAC; To pursue an ecosystem approach to fisheries (EAF), which often focuses in particular on (a) predator-prey relationships; (b) impacts of fisheries on non-target species and the ecosystem as a whole; and (c) impacts of oceanographic or climate processes, or pollution, on fish stocks; To cooperate in relation to transboundary fish stocks and fish stocks that occur exclusively on the high seas; and To exercise effective jurisdiction and control over a State’s own vessels.

The LOS Convention, the Fish Stocks Agreement and the FAO’s fisheries instruments are primarily concerned with establishing the jurisdictional framework. They do not contain substantive fisheries standards such as catch restrictions through TACs, allocations of fishing opportunities through national quotas, gear restrictions or temporal/seasonal or spatial measures (e.g., closed areas). Actual fisheries regulation is carried out by States individually or collectively. The primary means for collective regulation is through regional fisheries management organizations (RFMOs) or arrangements (RFMAs), which have the mandate to impose legally binding fisheries conservation and management measures on their members. The Fish Stocks Agreement designates RFMOs and RFMAs as the preferred vehicles for the conservation and management of straddling fish stocks (i.e., stocks occurring within the maritime zones of

14  Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995. In force 11 December 2001, 2167 United Nations Treaty Series 3; .

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one or more coastal States and on the high seas) and highly migratory fish stocks (e.g., tuna). 3

Arctic Fisheries Instruments and Bodies

3.1 Introduction As explained in more detail elsewhere,15 a considerable number of regional, sub-regional and bilateral fisheries instruments and bodies apply to parts of the marine Arctic. Two of these are of particular relevance for the Central Arctic Ocean, namely the North-East Atlantic Fisheries Commission (NEAFC) and the Joint Norwegian-Russian Fisheries Commission (Joint Commission). These two bodies are examined in the subsequent subsections, followed by a discussion on ‘A Gap in the Central Arctic Ocean’s Coverage with RFMOs or RFMAs?’ in subsection 3.4. 3.2 NEAFC NEAFC is an RFMO that was established by the NEAFC Convention16 and had five members and five cooperating non-contracting parties (cooperating NCPs) at the time of writing. Current members are Denmark (in respect of the Faroe Islands and Greenland), the EU, Iceland, Norway and the Russian Federation. Cooperating NCP status for 2015 was granted to the Bahamans, Canada, Liberia, New Zealand and Saint Kitts and Nevis.17 Whereas Cuba can accede to the NEAFC Convention whenever it wishes, other States must apply for accession and obtain the backing of three-fourths of the membership.18

15  E.J. Molenaar, “Arctic Fisheries Management”, in E.J. Molenaar, A.G. Oude Elferink and D.R. Rothwell (eds.), The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes (Martinus Nijhoff Publishers: 2013), pp. 243–266, at pp. 248–258. 16  Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries, London, 18 November 1980. In force 17 March 1982, 1285 United Nations Treaty Series 129; . 2004 Amendment (art. 18bis), London; 12 November 2004. Not in force due to objection by the Russian Federation (cf. Status of the NEAFC Convention as of 5 November 2014, on file with author). 2006 Amendments, London (Preamble, arts 1, 2 and 4), 11 August 2006. In force 29 October 2013 (cf. Status of the NEAFC Convention as of 5 November 2014, on file with author). Consolidated version of ‘London Convention’ available at . 17  Based on information available at the NEAFC website, accessed on 6 August 2015. 18  Paras. (1) and (4) of art. 20 of the NEAFC Convention. Cuba was a party to the NEAFC Convention’s predecessor and is currently a Member of NAFO.

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Apart from Lithuania’s application in 2003,19 which was withdrawn or became irrelevant once it became an EU Member State in 2004, no applications for membership seem to have been made. This can to a considerable extent also be explained by the minimal fishing opportunities that membership would bring. None of the current cooperating NCPs have fishing opportunities specifically allocated to them, even though NEAFC reserved small allocations for them in the past.20 In 2003, NEAFC adopted ‘Guidelines for the expectation[s] of future new Contracting Parties with regard to fishing opportunities in the NEAFC Regulatory Area’.21 These indicate that new entrants should not expect too much because allocations may only be granted for new fisheries.22 NEAFC’s Recommendations can apply to all or part of the ‘Convention Area’ or all or part of the much smaller ‘Regulatory Area’. The term ‘Convention Area’ is defined in article 1(a) of the NEAFC Convention and comprises areas within national jurisdiction (or: maritime zones of coastal States) as well as areas beyond national jurisdiction. Pursuant to subparagraph (a)(1), the Convention Area covers a segment of the Arctic Ocean extending up to the geographical North Pole. The term ‘Regulatory Area’ is defined in article 1(b) of the NEAFC Scheme of Control and Enforcement (NEAFC Scheme)23 as “the waters of the Convention Area, which lie beyond the waters under the fisheries jurisdiction of Contracting Parties”. This high seas area includes not only the Banana Hole and the Loophole but also a part of the Central Arctic Ocean. For most regulated species, coastal States have a very dominant role in the process of the establishment of the TAC and its allocation. They first agree together on an overall coastal State TAC while taking account of the scientific advice provided by the International Council for the Exploration of the Sea (ICES). However, as the ICES advice relates to the entire stock, the coastal States effectively determine the high seas TAC as well. They also allocate the coastal State TAC between them without specifying which part of coastal State allocations should be caught within or beyond areas under national 19  Report of the 2003 Annual NEAFC Meeting, at Annex D. 20  Cf. E.J. Molenaar “Participation, Allocation and Unregulated Fishing: The Practice of Regional Fisheries Management Organizations” (2003) 18 International Journal of Marine and Coastal Law 457–480 at 470. 21  Available at , under ‘Becoming a party’. 22  See also the Report of the 2014 NEAFC Performance Review Panel, at pp. 113–116 (available at ). Once a State is a contracting party, however, it is also entitled to use the ‘opting-out’ procedure laid down in art. 12(2) of the NEAFC Convention. Actual recourse to the procedure by a new contracting party is nevertheless expected to trigger substantial political pressure. 23  As amended at the 2014 Annual NEAFC Meeting.

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jurisdiction. NEAFC is then charged with setting and allocating the high seas TAC. Even though there appears to be limited room for maneuvering, it should not be forgotten that there are only five members of NEAFC and almost all are regarded as coastal States with respect to all three main straddling fish stocks regulated by NEAFC. The relevance of NEAFC Recommendations for the Arctic Ocean should not be overestimated. While most of the species-specific NEAFC Recommendations apply within the entire Regulatory Area and occasionally also within the entire Convention Area, none of the species involved currently occur in commercially significant numbers in the Arctic Ocean. More relevant are the NEAFC Scheme and several non-species-specific Recommendations, which also apply to the Arctic Ocean segment of the Regulatory Area or the Convention Area. NEAFC’s ‘Recommendation on the protection of vulnerable marine ecosystems in the NEAFC Regulatory Area’24—which is aimed at ensuring protection from the impacts of bottom fishing—also applies to the Arctic Ocean segment of the NEAFC Regulatory Area. It subjects exploratory bottom fishing outside existing bottom fishing areas and outside areas closed for bottom fishing activities to the need to conduct impact assessments and to obtain approval from NEAFC. 3.3 Joint Commission Bilateral cooperation on fisheries between Norway and the Russian Federation takes place predominantly within the Joint Commission established by the bilateral Framework Agreement.25 This Agreement was adopted against the background of the failure to resolve the delimitation of the two States’ maritime zones in the Barents Sea and was complemented by two other agreements, namely the Mutual Access Agreement26 and the Grey Zone Agreement.27 24  Recommendation 19: 2014. The newly amended version will be Recommendation 9: 2015. 25  Agreement between the Government of the Kingdom of Norway and the Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry, Moscow, 11 April 1975. In force 11 April 1975; 983 United Nations Treaty Series 7 (1975). It should be noted that art. III of the 1975 Agreement speaks of the “Mixed Commission”. 26  Agreement between the Government of the Union of Soviet Socialist Republics and the Government of the Kingdom of Norway Concerning Mutual Relations in the Field of Fisheries, Moscow, 15 October 1976. In force 21 April 1977; 1157 United Nations Treaty Series 146 (1980). 27  Avtale mellom Norge og Sovjetunionen om en midlertidig praktisk ordning for fisket i et tilstøtende område i Barentshavet (Agreement between Norway and the Soviet Union on provisional practical arrangements on fishing in an adjacent area of the Barents Sea) of 11 January 1978 (Overenskomster med fremmede stater (1978), 436).

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As the Murmansk Treaty28 resolved the maritime delimitation dispute, the Grey Zone Agreement was not renewed and is therefore no longer in force. The Murmansk Treaty deals with fisheries in its article 4 and Annex I, which, inter alia, maintain the status quo on the allocation of fishing opportunities but embrace the precautionary approach. Neither the Framework Agreement nor the Murmansk Treaty contain provisions on new members of the Commission. Subsection 3.4 discusses the qualification of the Joint Commission as an RFMO or an RFMA. A special feature of the practice of the Joint Commission is its encouragement for third States and entities (i.e. the EU) to discontinue, or not to commence, fishing for particular species in the Loophole and thereby not to exercise their entitlements under international law to fish in the high seas and to be involved in high seas fisheries management.29 In return, Norway and the Russian Federation have granted these third States and entities fisheries access to their own maritime zones and discontinued withholding benefits such as access to and use of their ports. This practice, which has among other things culminated in the trilateral Loophole Agreement between Iceland, Norway and the Russian Federation,30 is aimed at avoiding unregulated high seas fishing and thereby undesirable effects on the two coastal States’ rights and interests over straddling fish stocks. While its Preamble refers to the North-East Atlantic Ocean, the Framework Agreement does not explicitly define its spatial scope.31 The Framework Agreement 28  Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, Murmansk, 15 September 2010. In force 7 July 2011; United Nations Treaty Series Reg. No. 49095. English text available at . 29  These entitlements are, inter alia, laid down in art. 116 of the LOS Convention and art. 8(3) of the Fish Stocks Agreement. 30  Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation Concerning Certain Aspects of Co-operation in the Area of Fisheries of 15 May 1999 (41 Law of the Sea Bulletin 53 (1999)). This Agreement is complemented by two Protocols between Iceland and Norway and Iceland and the Russian Federation respectively, which are currently in force. See in this context R.R. Churchill “The Barents Sea Loophole Agreement: A “Coastal State” Solution to a Straddling Stock Problem” (1999) 14 International Journal of Marine and Coastal Law 467–483. Interestingly, Churchill notes at p. 471 that Iceland rejected an earlier proposal by Norway and the Russian Federation for a dedicated regime for the Loophole. 31  The reference in art. I to the area of competence of NEAFC’s predecessor does not amount to a definition of spatial competence either. The Joint Commission’s website consistently mentions the Barents Sea and the Norwegian Sea as the spatial reach of the Joint Commission (see information at ).

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and thereby the mandate of the Joint Commission is therefore not exclusively confined to the maritime zones of the two States, the high seas or the Barents Sea. Fisheries for species whose distributional ranges extend into the Loophole or beyond the Barents Sea into the Norwegian Sea, the Greenland Sea or the Arctic Ocean—including the Banana Hole and the Central Arctic Ocean— therefore fall in principle within the Joint Commission’s mandate. The Joint Commission’s competence over the Arctic Ocean has been asserted repeatedly, including through the inclusion of the Arctic Ocean in the full title of the Murmansk Treaty.32 Such an assertion does not raise any concerns over its general consistency with international law when it relates to those segments of the maritime zones of Norway and the Russian Federation that are part of the Arctic Ocean. Nor do such concerns exist with respect to the Central Arctic Ocean in case the Joint Commission regulates on a flag State basis. And even if the Joint Commission were to also apply its unique Loophole practice to some or all Central Arctic Ocean fisheries, this would not necessarily be inconsistent with international law. This conclusion is principally based on the unresolved question on consistency of port State jurisdiction with, particularly, international trade law.33 It is thereby also assumed that no atsea high seas enforcement measures would be undertaken and that in-port enforcement measures relating to Central Arctic Ocean fisheries would not be more onerous than denial of access or use of port. It is nevertheless considered to be unlikely that the Joint Commission will apply its unique Loophole practice also to some or all Central Arctic Ocean fisheries. The main reason for this is that it would have only limited effectiveness without the support of the other three Arctic Ocean coastal States. Such support is very unlikely to materialize as neither Canada nor the United States currently give foreign vessels fisheries access to their maritime zones and there is no indication that this policy will change in the foreseeable future.34

32  For other assertions see Molenaar 2013, note 15 supra, at pp. 254–255. 33  A recent opportunity to shed some light on this arose in 2013 when Denmark—in respect of the Faroe Islands—instituted against the EU two separate but related dispute settlement procedures on Atlanto-Scandian herring; one under the World Trade Organization (WTO) and one under the LOS Convention. However, both procedures were terminated in 2014 (for information see and ). 34  Note, for example, that the United States and the Russian Federation have for a number of years negotiated a comprehensive fisheries agreement for the Northern Bering Sea within the bilateral Intergovernmental Consultative Committee (ICC). These negotiations do not seem headed for a successful result due to a large extent to Russia’s preference for reciprocal fisheries access and the lack of support for this by the United States

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For most species, the Joint Commission determines TACs based on advice provided by ICES upon the joint request by the two members. In addition to allocating fishing opportunities and access between the two members, including for stocks whose TACs have been established through other processes, the Joint Commission has also allocated fishing opportunities to third States and entities on cod, haddock, and Greenland halibut. While there is significant competence-overlap between NEAFC and the Joint Commission—both spatially and on species—there was no, or hardly any, actual conflict between the management and conservation measures of the two bodies at the time of writing. Their current relationship can therefore be regarded as complementary. As Norway and the Russian Federation form two-fifths of NEAFC’s membership, they are also well-positioned to withstand challenges from the three other members of NEAFC35 to downscale the role of the Joint Commission and enhance that of NEAFC. Norway and the Russian Federation are also highly unlikely to support broader participation in the Joint Commission, as this would fundamentally alter its nature. 3.4 A Gap in the Central Arctic Ocean’s Coverage with RFMOs or RFMAs? The analysis above has shown that NEAFC’s spatial competence only applies in a segment of the (Central) Arctic Ocean, while the Joint Commission’s spatial competence is not explicitly defined and its members assert that it also extends to the Central Arctic Ocean. The question is therefore whether a gap in the Central Arctic Ocean’s coverage with RFMOs or RFMAs in fact exists. It is submitted that as the Arctic Ocean coastal States take the view that there is “no need at present to develop any additional” RFMO for the Central Arctic Ocean,36 they implicitly agree that a gap in the Central Arctic Ocean’s coverage with RFMOs or RFMAs exists. They also agree that “at least one” existing RFMO—NEAFC—has competence over a portion of the Central Arctic Ocean.37 (for information see , under ‘Agreements’ and then ‘Bilateral Arrangements’). 35  These ratios would change if, for instance, Iceland becomes an EU Member State or Greenland becomes fully independent. 36  The 2013 Chairman’s Statement, note 7 supra, only mentions RFMO while the 2014 Chairman’s Statement, note 6 supra, mentions RFMO as well as RFMA. It is submitted that this is at odds with the last sentence of the 2014 Chairman’s Statement, which supports a broader process involving non-Arctic Ocean coastal States (and entities) whose “final outcome could be a binding international agreement”. It is submitted that such an agreement would in fact be an RFMA. The 2015 Oslo Declaration, note 49 infra, at p. 1 reverts again to the correct terminology of the 2013 Chairman’s Statement. 37  This is mentioned in both Statements.

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This raises the question if the uncertainty or disagreement reflected in the phrase “at least one” relates to anadromous and/or highly migratory species—and thereby the North Atlantic Salmon Conservation Organization (NASCO) and the International Commission for the Conservation of Atlantic Tunas (ICCAT)—or the Joint Commission. In the latter case, the uncertainty or disagreement among the Arctic Five could relate to the Joint Commission’s spatial competence in the Central Arctic Ocean but also on whether or not the Joint Commission qualifies as an RFMO.38 Determining whether or not international bodies qualify as RFMOs or RFMAs is unfortunately not a straightforward matter due to the lack of generally accepted definitions for RFMOs and RFMAs, as well as for international organizations in general. As regards the term ‘international organization’, the International Law Commission (ILC) agreed in 2003 that this refers to an international organization established by a treaty or other instrument governed by international law and possessing its own legal personality. International organizations may include as members, in addition to states, other entities.39 As this definition was developed in the context of the issue of international responsibility of international organizations, however, some commentators regard it as inadequate. Schmalenbach therefore defines international organ­ izations as entities a) established by a treaty or other instruments governed by international law, and b) capable of generating through its organs an autonomous will distinct from the will of c) its members”.40 The Joint Commission was established by a treaty between subjects of international law and thereby satisfies criterion a), but it is submitted that it fails 38  Or both Statements should have linked the phrase “at least one” with RFMO as well as RFMA. 39  ‘Report of the International Law Commission. Fifty-fifth Session’ (5 May–6 June and 7 July–8 August 2003] General Assembly Official Records 58th Session Supp 10), at p. 38. 40  K. Schmalenbach, “International Organizations or Institutions, General Aspects”, Max Planck Encyclopedia of Public International Law (December 2006), at para. 3. R.R. Churchill and G. Ulfstein, “Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law”, 94 American Journal of International Law 623–659 (2000), at pp. 632–633 use a similar definition developed by Schermers and Blokker.

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to meet criteria b) and c). Even though the Joint Commission has established various subsidiary bodies,41 it neither has a budget nor is it served by a secretariat. Almost all international organizations have their own secretariat or are able to use that of another international organization. The EU is a well-known exception as it does not have a centralized secretariat; rather, each of its institutions has its own staff.42 The absence of a permanent secretariat therefore commonly means that an international body is not an international organization. On the other hand, the presence of a permanent secretariat does not necessarily imply that an international body is an international organization. The Antarctic Treaty Secretariat and the Arctic Council Secretariat are cases in point. In conclusion, the fact that the Joint Commission is not served by a secretariat is a very strong indication that it is not an international organization. Another strong indication that Norway and the Russian Federation do not intend the Joint Commission to have a ‘will of its own’, is that the Protocols of the Commission’s Annual Meetings consistently indicate that decisions are made by the “parties” rather than by the members or the Commission.43 This suggests that the two States regard the Joint Commission as a Meeting of the Parties (MoP) or a Conference of the Parties (CoP), and thereby an RFMA (see below), rather than an international organization, and thereby an RFMO. As noted above, there are no generally accepted definitions for RFMOs and RFMAs either. While no definitions are included in the LOS Convention for either concept, article 1(1)(d) of the Fish Stocks Agreement defines an RFMA as a cooperative mechanism established in accordance with the [LOS] Convention and this Agreement by two or more States for the purpose, inter alia, of establishing conservation and management measures in a subregion or region for one or more straddling fish stocks or highly migratory fish stocks. One of the most well-known RFMAs is the CoP established by the CBS Convention.44 A noteworthy feature of the Fish Stocks Agreement’s definition of an RFMA is that it can also have just two participating States (or entities), 41  See the information at . 42  Cf. N.M. Blokker, “International Organizations or Institutions, Secretariats”, Max Planck Encyclopedia of Public International Law (January 2008), at para. 1. 43  See the information at . 44  Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, Washington, 16 June 1994. In force 8 December 1995, 34 International Legal Materials 67 (1995); .

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which means the Joint Commission could in principle qualify as well. In fact, it has been argued that the term ‘arrangement’—and thereby the concept of the RFMA—was proposed by Norway during the negotiations on the Fish Stocks Agreement, specifically with the Joint Commission in mind.45 It is in this context useful to highlight that Norwegian legislation uses the generic term ‘international fisheries management body’, which comprises international organizations as well as agreements.46 Irrespective of the issue as to whether or not the Joint Commission would also actually qualify as an RFMA for the purpose of the Fish Stocks Agreement,47 it is clear that the concepts of RFMAs and RFMOs can also be used in a more general sense. For instance for mechanisms that (also) deal with other categories of fish stocks, such as anadromous, shared and discrete high seas fish stocks. It is submitted that the Chairman’s Statements of the 2013 Washington and 2014 Nuuk Meetings48 and the 2015 Oslo Declaration49 also use RFMOs and RFMAs in this more general sense. Illustrative in this regard is FAO’s broad concept of regional fishery bodies (RFBs), which cover mechanisms through which States or entities cooperate on the conservation and management of marine living resources (fish as well as marine mammals) and/or the development of marine capture fisheries.50 RFBs can 1. 2. 3.

be international organizations or CoPs/MoPs; be established within or outside the framework of the FAO Constitution; relate to inland and/or marine fisheries;

45  Cf. I. Dahl, “Maritime Delimitation in the Arctic: Implications for Fisheries Jurisdiction and Cooperation in the Barents Sea”, 30 International Journal of Marine and Coastal Law 1–28 (2015), at pp. 17–18, relying on a report by the Norwegian delegation to the 5th session of the negotiations on the Fish Stocks Agreement. 46  Cf. Sec. 2(3) of the Regulations on licensing for fishing outside Norwegian fisheries jurisdiction (Forskrift om konsesjonsordning for fiske utenfor norsk fiskerijurisdiksjon; FOR-2007-03-02-232, of 2 March 2007, as amended; available at ). 47  Dahl, note 45 supra, at p. 20 concludes that the Joint Commission is an RFMA for the purpose of the Fish Stocks Agreement. 48  See notes 6 and 7 supra. 49  Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean, Oslo, 16 July 2015. The text of the Declaration as well as its ‘accompanying text’ can be found at . 50  See the information at . It should be noted that while this page distinguishes a ‘regional fishery arrangement’ from an RFB, FAO’s list of RFBs on does not use this distinction.

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relate to anadromous (e.g. the bilateral Pacific Salmon Commission (PSC)), shared (e.g. the bilateral International Pacific Halibut Commission (IPHC)), straddling, highly migratory or discrete high seas fish stocks; and be mandated to impose legally binding conservation and management measures on its members or participants (i.e. RFMOs and RFMAs) or merely have an ‘advisory’ mandate, whether primarily science-oriented or primarily management-oriented.

As of 6 August 2015, the Joint Commission was included in FAO’s list of RFBs, which does not distinguish RFMOs/RFMAs from other RFBs.51 FAO’s list of RFBs made such a distinction not so long ago, however, and categorized the Joint Commission as an RFMO then.52 Such a categorization could nevertheless not be regarded as a form of multilateral recognition of the status of these international bodies under international law. Unless explicitly provided otherwise, the competence to make such determinations lies with States and entities, whether individually or collectively. This may well be the reason as to why FAO’s list of RFBs no longer distinguishes RFMOs/RFMAs from other RFBs. Returning now to the Chairman’s Statements of the 2013 Washington and 2014 Nuuk Meetings and the 2015 Oslo Declaration, it is clear that these reflect agreement among the Arctic Five that NEAFC qualifies as an RFMO. This is hardly surprising, as NEAFC is generally accepted to be an RFMO. As neither Statement mentions the Joint Commission, however, each of the Arctic Five retains the competence to determine whether or not the Joint Commission qualifies as an RFMO, an RFMA or neither. This determination could be exclusively for the purpose of the Statements or in general. The implications of this will be examined further in subsection 4.2. Finally, it should be noted that even if each of the Arctic Five were to agree that the Joint Commission is an RFMO or an RFMA for the purpose of the Statements, or in general, this does not necessarily imply that they also agree that no gap exists in the Central Arctic Ocean’s coverage with RFMOs or RFMAs. Canada, Denmark (in respect of the Faroe Islands and Greenland) and/or the United States may for instance take the view that such a gap exists on account of the limited membership/participation in the Joint Commission.

51  See note 50 supra, 2nd sentence. 52  A version of the list dated 2 July 2014 was used for the envisaged publication authored by R. Billé, L. Chabason, P. Drankier, E.J. Molenaar and J. Rochette, Regional Oceans Governance. Making Regional Seas Programmes, Regional Fishery Bodies and Large Marine Ecosystem Mechanisms Work Better Together (UNEP; forthcoming in 2016), at section 3.3.

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The Evolving Regional Law on Arctic Ocean Fisheries

4.1 In Search of a Suitable Mechanism One of the first intergovernmental discussions of Arctic Ocean fisheries occurred at the November 2007 meeting of the Arctic Council’s Senior Arctic Officials (SAOs). The discussion had been triggered by the United States, in response to its Senate joint resolution No. 17 of 2007, directing the United States “to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean.”53 The ensuing discussion at the SAOs meeting was summarized as follows: “There was strong support for building on and considering this issue within the context of existing mechanisms.”54 The search for a suitable mechanism—existing or new—took place largely in 2008 and 2009. The European Commission proposed NEAFC in November of 2008,55 but this did not attract sufficient support among the Arctic Five.56 Next, the United States delegation to the 28th Session of FAO’s Committee on Fisheries (COFI) in March 2009, hosted a side event on Arctic fisheries.57 The discussion paper circulated for this purpose proposed the convening of an intergovernmental meeting sometime in 2009 or 2010, at which the participants could adopt a non-legally binding instrument on Arctic fisheries.58 It did not clarify if the envisaged meeting ought to take place outside or within the framework of FAO or any other existing mechanism. No further indication on potential participants was included either. 53  Passed by the Senate on 4 October 2007. The House of Representatives voted in favor of SJ Res. No. 17 in May 2008 and President Bush signed it on 4 June 2008. 54  Report of the November 2007 SAOs Meeting, (available at ), at 12. 55  COM (2008) 763, of 20 November 2008, ‘Communication from the Commission to the European Parliament and the Council on The European Union and the Arctic Region’, at p. 8. 56  For a discussion on potential reasons for this lack of support, see E.J. Molenaar, “Arctic Fisheries Conservation and Management: Initial Steps of Reform of the International Legal Framework”, 1 Yearbook of Polar Law 427–463 (2009), at pp. 456–458. 57  “FAO Committee on Fisheries. Side Event on Arctic Fisheries. Hosted by the United States Delegation. 4 March 2009. Mexico Room, 13:00–14.15. Discussion Paper” (on file with author). It is noteworthy that this discussion paper was developed in tandem with an Expert Policy Brief entitled “Policy Options for Arctic Environmental Governance. Prepared by the Fisheries Working Group”, of 5 March 2009, drafted in the context of the Arctic TRANSFORM project (for information see ). 58  Ibid.

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Towards the end of 2009, the regulation of Arctic (Ocean) fisheries surfaced during the negotiations on the 2009 UNGA ‘Ocean’ and ‘Sustainable Fisheries’ Resolutions as a consequence of various EU proposals for paragraphs relating to the Arctic and Arctic Ocean fisheries. The Arctic Ocean coastal States, apart from the United States, took the view that the UNGA had no role in relation to Arctic fisheries; certainly not in developing regional Arctic fisheries regulations under its auspices but also not in raising the need for their establishment per se.59 On 4 December 2009, during the plenary debates on these resolutions, Norway indicated that the Arctic Five “have a special responsibility” in “balancing the protection of the Arctic environment with the orderly and sustainable use of its resources”.60 A few months later, the Chair’s Summary of the second Arctic Ocean coastal States ministerial (Foreign Affairs) meeting in March 2010, Chelsea, Canada, echoed a similar message by emphasizing that the Arctic Five have “a unique interest and role to play in current and future efforts for the conservation and management of fish stocks” in the Arctic Ocean.61 These two statements suggest that, already by the end of 2009 or at least by early 2010, the Arctic Five agreed that if a new international instrument on Arctic Ocean fisheries should be developed at all—which was not yet evident for all five by then62—its development should be initiated and led by the Arctic Five outside the framework of (other) existing mechanisms. So far, the only real challenge to the role claimed by the Arctic Five seems to have come from Iceland,63 which took/takes the view that it is entitled to join the Arctic Five, apparently on account of the possibility that the distributional range of fish stocks that occur in the Arctic Ocean also overlaps with Iceland’s maritime zones.64 The crux is nevertheless that, based on geography, Iceland is simply not an Arctic Ocean coastal State. If the Arctic Five were to allow Iceland to join them, they would not only have difficulty in finding a convincing common denominator but would also stimulate ‘applications’ by 59  See Molenaar 2013, note 15 supra, at pp. 246–248. 60  UNGA Official Records, doc. A/64/PV.56, at p. 16. 61  On file with author; also available at . 62  See the discussion by N. Wegge, “The Emerging Politics of the Arctic Ocean. Future Management of the Living Marine Resources”, 51 Marine Policy 331–338 (2015), at pp. 335–336. 63  Ibid., at p. 335. 64  Cf. “A Parliamentary Resolution on Iceland’s Arctic Policy”, approved by the Althingi at its 139th legislative session, on 28 March 2011 (on file with author), at Principles No. 2 and 3 (see also Commentary in relation to Principles No. 2, 3 and 7). This argument would then be based on art. 63 of the LOS Convention.

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other ‘nearby’ States or entities, or renewed calls to convene the envisaged broader process on Central Arctic Ocean fisheries under the auspices of the Arctic Council. As regards the latter, some Arctic Council involvement on fisheries resources was proposed in drafts of the Arctic Council’s Arctic Ocean Review (AOR) Phase II Report, but these proposals did not make it to the final text of May 2013.65 4.2 The Arctic Ocean Coastal States Process on Arctic Ocean Fisheries In their capacity as coastal States to the Arctic Ocean, the Arctic Five share certain rights, interests and concerns as well as obligations, and it is therefore perfectly understandable—and often in fact required—that they cooperate and coordinate on various issues at one level or another. One of the earliest instances of cooperation among the Arctic Five, although not necessarily conceived as belonging to the domain of the international law of the sea, is the 1973 Polar Bear Agreement.66 In 1991, the Arctic Eight became the principal group for pan-Arctic cooperation due to the creation of the Arctic Environmental Protection Strategy (AEPS)67 and its associated institutional process. Subsequently, the AEPS was incorporated within the Arctic Council established in 1996, which gradually evolved into the principal intergovernmental body for pan-Arctic cooperation. This status achieved by the Arctic Council was during a brief period under challenge due to the Russian Federation’s planting of its flag on the geographical North Pole’s deep sea-bed in 2007 and the ensuing events it elicited. The flag-planting was incorrectly perceived by many to inevitably lead to the last land-grab on earth and a resource bonanza, unchecked due to a legal vacuum. This incorrect perception was then followed by the incorrect assumption that the vacuum logically had to be filled by a treaty modeled on the Antarctic Treaty.68 A number of proposals were made to that effect.69 The Arctic Five felt compelled to reject these incorrect perceptions and dismiss such proposals by 65  See Molenaar 2013, note 15 supra, at pp. 259–260. The AOR Final Report is available at . 66  Agreement on the Conservation of Polar Bears, Oslo, 15 November 1973. In force 26 May 1976; 13 International Legal Materials 13; . 67  Rovaniemi, 14 June 1991; 30 International Legal Materials 1624 (1991); . 68  Washington, D.C., 1 December 1959. In force 23 June 1961, 402 United Nations Treaty Series 71; . 69  See, inter alia, the European Parliament’s Resolution on ‘Arctic governance’ (Official Journal 2010, C 9/7; doc. P6_TA(2008)0474), para. 15.

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means of their May 2008 Ilulissat Declaration adopted at the first Arctic Five ministerial (Foreign Affairs) meeting.70 The convening of the Ilulissat ministerial meeting and the adoption of its declaration was criticized by the Arctic Council’s other three members and its permanent participants for undermining the Arctic Council.71 The Arctic Five nevertheless convened once again at ministerial level in March 2010, in Chelsea, Canada. At that meeting, however, the United States Secretary of State Clinton expressed doubts and concerns over the appropriateness of ministerial (Foreign Affairs) meetings of the Arctic Five,72 and no such further meetings have since taken place. The high-level participation at the Arctic Council’s 2011 Nuuk Ministerial Meeting—in particular by the United States, which was represented not only by Clinton but also by the Secretary of the Interior Salazar—was another clear sign of the Arctic Five’s renewed full support for the Arctic Council. The fact that no Arctic Five ministerial (Foreign Affairs) meetings have been held since March 2010, does not mean that the Arctic Five are not willing, or in fact required, to cooperate and coordinate. As regards Arctic Ocean fisheries, the Arctic Five have, since March 2010, convened a number of policy/ governance meetings at the senior officials level, alongside a series of science meetings. The former includes four meetings on which information was made publicly available, namely the June 2010 Oslo Meeting,73 the 2013 Washington and 2014 Nuuk Meetings already mentioned, and the Meeting at ambassadorial level on 16 July 2015 in Oslo, which was convened to sign the 2015 Oslo Declaration. Other meetings on which information was not made publicly available have also been held, both before June 2010 and after February 2014.74 Science meetings have been convened in June 2011 (Anchorage), October 2013 (Tromsø) and April 2015 (Seattle).75

70  “Ilulissat Declaration, Arctic Ocean Conference of 28 May 2008” (48 International Legal Materials 362 (2009); . 71  See e.g. the Report of the April 2010 SAOs Meeting (available at ), at para. 20; and Iceland’s 2011 Parliamentary Resolution on Arctic Policy, note 64 supra, at Principle No. 1 (including Commentary, at pp. 4–6). 72  T. Pedersen, “Debates over the Role of the Arctic Council”, 43 Ocean Development & International Law 146–156 (2012), at p. 152. 73  See Chair’s summary, available at . 74  One such meeting was convened by Norway, in March 2009, in New York and another by Canada, in June 2014, somewhere in Canada. 75  See note 5 supra.

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The next subsection examines the output of the 2014 Nuuk Meeting. From a policy/governance standpoint, it is notable that the 2010 Oslo Meeting had a different spatial focus compared to the 2013 Washington and 2014 Nuuk Meetings and the 2015 Oslo Declaration. Whereas the former related to Arctic Ocean fisheries in general, the latter three focused exclusively on Central Arctic Ocean fisheries; namely the high seas. This is in principle consistent with the spatial foci of essentially all RFMOs and RFMAs that deal with non-tuna fish stocks. However, most—if not all—these address the need to ensure compatibility between fisheries conservation and management measures relating to the high seas and coastal State maritime zones in one way or another.76 The compatibility issue could nevertheless be taken up by the broader process involving other interested States (and entities) to which the Arctic Five committed at the 2014 Nuuk Meeting as well as by means of the 2015 Oslo Declaration.77 This broader process would, at least prima facie, also address concerns over any potential inconsistency with international law arising from the Arctic Five’s exclusive focus on the high seas without involving flag States and entities (see subsection 4.5 further below). The evolving spatial focus of the Arctic Ocean coastal States process on Arctic Ocean fisheries also warrants some observations on Denmark. Whereas the Chair’s summary of the 2010 Oslo Meeting refers to representatives from “Denmark/Greenland”, the Chairman’s Statements of the 2013 Washington and 2014 Nuuk Meetings as well as the 2015 Oslo Declaration refer to (officials from) “the Kingdom of Denmark”. As the spatial focus is not limited to the coastal State maritime zones of the Arctic Ocean but is rather limited to the high seas, Denmark has the competence to agree on non-legally binding commitments or legally binding obligations in respect of both the Faroe Islands and Greenland. Not, however, in respect of ‘mainland’ Denmark, in view of its EU membership. 4.3 The Substantive Outcome of the 2014 Nuuk Meeting Although the Chairman’s Statement of the 2014 Nuuk Meeting contains a section entitled ‘Interim Measures’, in actual fact the Arctic Five merely agreed on the desirability of interim measures, rather than formally adopting them.78 76  Cf. art. 7 of the Fish Stocks Agreement. 77  Cf. Chairman’s Statement of the 2014 Nuuk Meeting, note 6 supra, at p. 2, and Oslo Declaration, note 49 supra, at p. 2. 78  Cf. S. Ryder, “The Nuuk Meeting on Central Arctic Ocean Fisheries”, post of 15 October 2014 on the blog of the K.G. Jebsen Centre for the Law of the Sea (available at ).

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The 2014 Nuuk Meeting therefore fell short of generating a non-legally binding commitment on substantive aspects of Central Arctic Ocean fisheries. This is underscored by the fact that the Arctic Five “agreed to develop a Ministerial Declaration for signature or adoption by the five States based on the provisions described above”.79 As confirmed by the 2015 Oslo Declaration, these “provisions” refer mainly to the bulleted text in the section on ‘Interim Measures’. As reflected in the text preceding the bulleted text, the most important of the five envisaged interim measures relates to avoiding unregulated fishing. This envisaged interim measure would commit the Arctic Five to: authorize their vessels to conduct commercial fishing in this high seas area only pursuant to one or more regional or subregional fisheries management organizations or arrangements that are or may be established to manage such fishing in accordance with modern international standards.80 The envisaged commitment therefore only applies to commercial fishing, thus allowing vessels flying the flag of the Arctic Five to engage in other types of fishing, for instance for subsistence—whether or not by Arctic indigenous peoples—scientific or recreational purposes.81 The spatial scope of the envisaged commitment is limited to “this high seas area”. The definition included in the Chairman’s Statement for this phrase corresponds to the Central Arctic Ocean defined in this chapter.82 Accordingly, the envisaged commitment also applies to the Arctic Ocean segment of the NEAFC Regulatory Area. Two conditions must be met before the Arctic Five can authorize their vessels to engage in commercial fishing in the Central Arctic Ocean. These are that such fishing can only occur (a) pursuant to one or more RFMOs or RFMAs that (b) “are or may be established to manage such fishing in accordance with modern international standards”. As regards the first condition, it has been 79  Chairman’s Statement of the 2014 Nuuk Meeting, note 6 supra, at p. 2. 80  Ibid. 81  The 4th bullet nevertheless envisages a commitment to “ensure that any non-commercial fishing in this area does not undermine the purpose of the interim measures, is based on scientific advice and is monitored, and that data obtained through any such fishing is shared”. 82  This definition is: “the single high seas portion of the central Arctic Ocean that is entirely surrounded by waters under the fisheries jurisdiction of Canada, the Kingdom of Denmark in respect of Greenland, the Kingdom of Norway, the Russian Federation and the United States of America”.

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observed in subsection 3.4 that NEAFC is generally accepted to be an RFMO. In addition, the 2013 and 2014 Chairman’s Statements explicitly state that NEAFC is an RFMO. As the Joint Commission is not explicitly mentioned in either Statement, its situation is different from NEAFC’s. Subsection 3.4 concluded that there are no generally accepted definitions for RFMOs or RFMAs and that no international body is currently mandated by the international community to determine whether or not international bodies qualify as RFMOs or RFMAs. Unless explicitly provided otherwise, the competence to make such determinations lies with States and entities; whether individually or collectively. As the 2014 Chairman’s Statement does not provide otherwise, Norway and the Russian Federation are entitled to regard the Joint Commission as an RFMO or RFMA for the purpose of this Statement. As concluded earlier, the two States are likely to regard the Joint Commission as an RFMA; not necessarily for the purpose of the Fish Stocks Agreement, but probably more in general, and at any rate for the purpose of the 2014 Chairman’s Statement. And in case one or more of the other three Arctic Ocean coastal States disagrees with such a position for the purpose of the 2014 Chairman’s Statement, Norway and the Russian Federation would still be able to rely on the following savings clause included in the beginning of the section on ‘Interim Measures’: The interim measures will neither undermine nor conflict with the role and mandate of any existing international mechanism relating to fisheries, including NEAFC. There can be no doubt that the Joint Commission qualifies as an “existing international mechanism relating to fisheries” and that it is thereby covered by the savings clause. The second condition included in the earlier citation—“are or may be [. . . .] standards”—links fisheries management by RFMOs and RFMAs to the phrase “modern international standards”. The wording chosen for this linkage is “established to manage” rather than, for instance, ‘established and manage’. The literal meaning of the chosen wording is therefore that existing and future RFMOs or RFMAs are ‘merely’ required to have the mandate to manage fishing in accordance with “modern international standards”. Rather than actually managing fishing in accordance with international standards, it would thus be sufficient for RFMOs or RFMAs to have the ability to manage fishing in

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this way.83 Even though the 2015 Oslo Declaration uses identical wording, one wonders if this is really what the Arctic Five had in mind. Reference should nevertheless also be made to distinctions between existing RFMOs and RFMAs. The constitutive instruments of RFMOs commonly have a framework character and do not contain actual fisheries conservation and management measures. This can be different for RFMAs. The CBS Convention, for instance, not only contains its objectives and the functions of its annual conference, but also a procedure for establishing the annual harvest level, which should be set at zero if the Aleutian Basin pollock biomass is less than a certain amount.84 Future RFMAs relating to Central Arctic Ocean fisheries may therefore contain actual fisheries conservation and management measures as well. The phrase “modern international standards” is likely to be intended to comprise the key obligations set out at the end of section 2, in particular the EAF and the precautionary approach to fisheries management. Furthermore, in view of the particular characteristics of the Arctic Ocean, the phrase is likely to require specific attention to new and exploratory fisheries.85 The above analysis means that the envisaged commitment to avoid unregulated fishing is in part given shape by abstaining from unilateralism. The Arctic Five intend not to authorize their vessels to engage in commercial fishing in the Central Arctic Ocean merely pursuant to their own laws and regulations. This is consistent with, and perhaps also inspired by, Norwegian law, which prohibits Norwegian vessels to engage in commercial fishing on the high seas unless such fishing is regulated by an international fisheries management body.86 The Arctic Five’s commitment therefore does not preclude commercial fishing by vessels flying the flag of members/participants of NEAFC, the Joint Commission or future RFMOs or RFMAs. As regards NEAFC, vessels flying the flag of the Faroe Islands, Greenland, Norway and the Russian Federation can therefore still engage in commercial fishing in the Central Arctic Ocean segment of the NEAFC Regulatory Area 83  Note that the definition of ‘arrangement’ in art. 1(1)(d) of the Fish Stocks Agreement, cited in the main text supra, takes a similar approach. 84  See arts III, IV and VII, and Part 1 of the Annex. 85  See, e.g., art. 6(6) of the Fish Stocks Agreement and the recent steps taken by NEAFC on exploratory bottom fishing discussed in note 24 supra and accompanying text. 86  Cf. sec 2(2) of the 2007 Licensing Regulations, note 46 supra.

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pursuant to NEAFC’s conservation and management measures. Similarly, Norwegian and Russian vessels could still engage in commercial fishing in the Central Arctic Ocean pursuant to the Joint Commission’s conservation and management measures. The significance of this scenario as well as its likelihood to materialize should not be overstated, however. After all, the Arctic Five have a clear preference for a new RFMO or RFMA for that part of the Central Arctic Ocean that is outside the NEAFC Regulatory Area. This multilateral preference is implied in their collective efforts on the governance of Central Arctic Ocean fisheries and the broader process they envisage in this regard. The involvement of Norway and the Russian Federation in the Arctic Five’s process on Arctic Ocean fisheries implies that they have no objection to a new RFMO or RFMA and thereby its lex specialis status vis-à-vis the Joint Commission as such. The Joint Commission is then likely to become relevant only if the multilateral solution takes too long to establish or is not established at all. Even then, the Joint Commission may only be willing to regulate fisheries by Norwegian and Russian vessels in high seas areas immediately adjacent to the maritime zones of Norway and the Russian Federation in the Arctic Ocean. It is clear that the envisaged commitment to avoid unregulated fishing is a fundamentally different approach than that pursued by the CBS Convention discussed above, or by the United States’ Arctic Fisheries Management Plan (FMP) for its EEZ off Alaska in the Arctic Ocean. The latter prohibits an expansion of commercial fishing until sufficient information is available, to ensure that fisheries can be conducted in accordance with the EAF and in recognition of the interests of local residents and communities.87 The United States must have had and may still have a preference for something similar or with similar effectiveness. An earlier United States proposal for an international instrument relating to Central Arctic Ocean fisheries is reported to have been inspired by the CBS Convention.88 The failure to attract sufficient support for this proposal could be due to one or more of the Arctic Five objecting to mechanisms which would give a single State or a minority of States the power to block commencement of fishing in the Central Arctic Ocean, even though this would be in accordance with, for instance, the EAF. Opposition to the International Whaling Commission’s moratorium on commercial whaling, which can only

87  C.f. the Arctic FMP adopted by the United States North Pacific Fishery Management Council on 5 February 2009, effective 3 December 2009 (50 CFR Part 679; Federal Register, Vol. 74, No. 211, of 3 November 2009, 56734 (all available at ). 88  Cf. Wegge, note 62 supra, at p. 336.

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be lifted with the support of a three-fourths majority,89 may well have played an important role in this respect. One or more of the Arctic Five may have also felt that proposals like these would ultimately not be able to attract sufficient support among non-Arctic States and entities in the envisaged broader p ­ rocess anyway. Finally, one or more of the Arctic Five may have taken the view that proposals like these require, due to the notion of compatibility, a similar approach in their coastal State maritime zones in the Arctic Ocean, which they could not support. 4.4 The 2015 Oslo Declaration The Declaration that was eventually signed in Oslo on 16 July 2015 was already foreseen in the 2014 Chairman’s Statement, but was at that time scheduled to be signed at ministerial level in June 2014. The Russian Federation’s annexation of Crimea and the subsequent events in Eastern Ukraine disrupted these plans, and for a while it was uncertain if these and the broader process envisaged in Nuuk would ever come to fruition. The 2015 Oslo Declaration, signed at ambassadorial rather than ministerial level—probably instigated by Canada in view of the many Canadians with Ukrainian descent—brought an end to this uncertainty and confirmed that the consensus that existed in Nuuk had remained largely intact. While the wording and structure of the 2015 Oslo Declaration are not identical to that of the 2014 Chairman’s Statement, it is submitted that most differences are relatively insignificant. Most importantly, the key commitment on unregulated high seas fishing that was discussed at length in the previous subsection, is included almost identically in the 2015 Oslo Declaration. The only difference is the substitution of the phrase “modern international standards” with “recognized international standards”. The new phrase may have been preferred because it is more closely aligned with the terminology used in other so-called ‘rules of reference’ in international fisheries law.90 In terms of substance, it seems that also the new phrase covers the EAF and the precautionary approach to fisheries management, as well as specific attention to new and exploratory fisheries. As regards

89  Cf. arts III(2) and V of the International Convention for the Regulation of Whaling (Washington D.C., 2 December 1946. In force 10 November 1948, 161 United Nations Treaty Series 72; ). 90  Cf. Ryder, note 78 supra. For instance the phrase “generally recommended international minimum standards” in arts 61(3) and 119(1)(a) of the LOS Convention and arts 5(b) and 10(c) of the Fish Stocks Agreement.

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the precautionary approach, this is supported by a reference to it elsewhere in the 2015 Oslo Declaration (see further below). The various savings clauses of the 2014 Chairman’s Statement were redrafted somewhat and are grouped together immediately after the commitments. As the text contains the key sentence “These interim measures will neither undermine nor conflict with the role and mandate of any existing international mechanism relating to fisheries, including [NEAFC]”, the previous subsection’s conclusions on NEAFC and the Joint Commission remain intact. The 2014 Chairman’s Statement envisaged five commitments, but the 2015 Oslo Declaration only contains four. The text of the commitment that was omitted—“to encourage other States to take measures in respect of vessels entitled to fly their flags that are consistent with these interim measures”—is nevertheless still included unchanged in the Declaration, closer to the text on the broader process at the end, where it is actually placed better. While the text of the fourth interim measure has remained the same, the texts of the second and third interim measures have been expanded. They read:

•

We will establish a joint program of scientific research with the aim of improving understanding of the ecosystems of this area and promote cooperation with relevant scientific bodies, including but not limited to the International Council for the Exploration of the Sea (ICES) and the North Pacific Marine Science Organization (PICES). We will promote compliance with these interim measures and with relevant international law, including by coordinating our monitoring, control and surveillance activities in this area. We will ensure that any non-commercial fishing in this area does not undermine the purpose of the interim measures, is based on scientific advice and is monitored, and that data obtained through any such fishing is shared.

• •

The second interim measure has been enlarged with the phrase “and promote (. . . .) (PICES)”, which the 2014 Chairman’s Statement also included elsewhere. A reference to the Arctic Council could not be expected here, as it is not a scientific body. It is nonetheless striking that neither the 2015 Oslo Declaration nor the 2014 Chairman’s Statement mention cooperation with the Arctic Council at all. This despite, inter alia, the Council’s very broad mandate with its explicit inclusion of “environmental protection”91 and its general acceptance as the principal intergovernmental body for pan-Arctic cooperation.

91  ‘Declaration on the Establishment of the Arctic Council’ (Ottawa, 19 September 1996; text available at ), at p. 1.

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A new aspect of the 2015 Oslo Declaration compared to the 2014 Chairman’s Statement is the clarification of its rationale and international legal basis, including an explicit reference of the precautionary approach. After noting that commercially viable high seas fishing is unlikely to occur in the near future and that a new RFMO is therefore not needed, the Declaration continues as follows: Nevertheless, recalling the obligations of States under international law to cooperate with each other in the conservation and management of living marine resources in high seas areas, including the obligation to apply the precautionary approach, we share the view that it is desirable to implement appropriate interim measures to deter unregulated fishing in the future in the high seas portion of the central Arctic Ocean. Whereas the second part of the sentence—“we share [. . .] central Arctic Ocean”—is virtually identical to text already included in the 2014 Chairman’s Statement, the first part is new. In addition to clarifying the rationale as well as the international legal basis of their commitments, the explicit acknowledgement that the precautionary approach forms part of their obligations under international law implies that it is also covered by the phrase “recognized international standards” included in the first interim measure. Interestingly, the 2014 Chairman’s Statement contained a clarification of the Arctic Five’s claim to a lead role on the international regulation of Central Arctic Ocean fisheries, noting “that it is appropriate for the States whose exclusive economic zones border the high seas area in question to take the initiative on this matter”. The 2015 Oslo Declaration is silent about this. To some extent, this may also be regarded as unnecessary due to the clarification of the rationale and international legal basis of their commitments. But it may well be that the Arctic Five also decided that it was undesirable to explicitly assert, and draw attention to, their lead role and its appropriateness. As advanced in the next subsection, however, this does not mean that the Arctic Five have renounced their lead role. They are likely to maintain full control on the crucial and sensitive issue of participation in the broader process. Moreover, the 2015 Oslo Declaration stipulates that the outcome of this process must be “consistent with” the Declaration. 4.5 The Envisaged Broader Process on Central Arctic Ocean Fisheries Both the 2014 Chairman’s Statement and the 2015 Oslo Declaration are supportive of developing international regulation of Central Arctic Ocean fisheries further among a more inclusive group than just the Arctic Five. The relevant texts nevertheless contain many differences and read as follows:

458 2014 Chairman’s Statement The meeting also reaffirmed that other States may have an interest in this topic and looked forward to a broader process involving additional States beginning before the end of 2014. The purpose would be to develop a set of interim measures, compatible with the Ministerial Declaration, that would include commitments by additional States. The final outcome could be a binding international agreement.

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2015 Oslo Declaration We acknowledge the interest of other States in preventing unregulated high seas fisheries in the central Arctic Ocean and look forward to working with them in a broader process to develop measures consistent with this Declaration that would include commitments by all interested States.

Rather than a comprehensive analysis of these differences, a few observations are offered on some more important differences. First, the 2015 Oslo Declaration’s text is arguably more welcoming, cooperative and inclusive. Whereas the 2014 Chairman’s Statement opts for “may have an interest”, “a broader process involving” and “additional States”, the 2015 Oslo Declaration does not question that other States may have an interest and looks “forward to working with” not just additional States but “all interested States”. Second, the last sentence of the citation of the 2014 Chairman’s Statement—“The final [. . .] agreement”—did not make it to the 2015 Oslo Declaration. As a minimum, this reflects a lack of consensus on the need or desirability of its inclusion. However, the root cause for this could also be a lack of support by one of more of the Arctic Five for a legally binding outcome. On the other hand, the significance of the non-inclusion of this sentence should also not be overstated, as a legally binding outcome is not ruled out. It is finally submitted that even if the outcome would be non-legally binding, it would still constitute an RFMA. As regards its spatial scope, it would be logical for it not to overlap with the NEAFC Regulatory Area. At the time of writing, the envisaged broader process still seemed to be in a design-phase without agreement on rules of procedure, date and venue of a first meeting, and who will participate besides the Arctic Five. Some time ago the intention seemed to be that participation in the broader process would be exclusively based on invitation by the Arctic Five, and that the following non-Arctic States and entities would be invited: China, the EU, Iceland, Japan and South Korea.92 Participation by States and entities in the broader process 92  Based on communications between the author and government officials from Norway and the United States. These five participated indeed in the first meeting of the broader

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would thus consist of ‘Five-plus-Five’. However, the substitution of “additional States” by “all interested States” raises the question if the Arctic Five perhaps considered more inclusive participation at the time of writing.93 The 2015 Oslo Declaration recognizes the interests of Arctic indigenous peoples “in the proper management of living marine resources in the Arctic Ocean”. However, participation of their representatives in their own right, rather than as part of the delegations of the Arctic Five, is probably not able to secure consensus among the Arctic Five, and may also be opposed by nonArctic States that have concerns relating to indigenous peoples, in particular China. Participation by non-governmental organizations—both green and industry—may be less controversial. The selection of the abovementioned five non-Arctic Ocean coastal States and entities may be motivated by various reasons. The inclusion of the EU and Iceland ensures representation of all Arctic States, as Finland and Sweden would be represented by the EU. The significant distant-water fleets and interests of China, the EU, Japan and South Korea are likely to have played a role as well. The selection moreover ensures the inclusion of all members or parties to NEAFC and the ‘nearby’ CBS Convention.94 However, this is not the case for the ‘nearby’ Northwest Atlantic Fisheries Organization (NAFO; Cuba and the Ukraine) and the ‘nearby’ NPFC (Taiwan (Republic of China)). Inviting the Ukraine would, at the time of writing, be unlikely to be supported by the Russian Federation. Due to the improved relations between Cuba and the United States, however, the latter may not object to inviting Cuba. On the other hand, Cuba may simply not be interested in participating.95 A reason process, which took place in December 2015. See E.J. Molenaar, “The December 2015 Washington Meeting on High Seas Fishing in the Central Arctic Ocean”, post dated 5 February 2016 for The JCLOS Blog . 93  As advocated for instance by T. Heidar in his presentation entitled “The Legal Framework for Central Arctic Ocean Fisheries” at the conference International Marine Economy: Law and Policy, co-organized by the Center for Oceans Law and Policy, University of Virginia School of Law, and the Center for Polar and Deep Ocean Development, Shanghai Jiao Tong University, in Shanghai, on 24–26 June 2015 (available at ). 94  The EU and Iceland represent the ‘missing’ members of NEAFC, and China, Japan and South Korea the ‘missing’ parties to the CBS Convention. Poland is also a party to the CBS Convention but as it is also an EU Member State, it would be represented by the EU. The EU will seek to become a party to the CBS Convention “in due time” (cf. Report of the 18th Annual Conference of the CBS Convention (2013), at Appendix 1). 95  See also note 18 supra and accompanying text on Cuba’s unused right to become a party to the NEAFC Convention.

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for not inviting Taiwan despite its significant distant-water fleet and interests could be to avoid having to address the difficulties associated with its disputed status under international law in the presence of China. Finally, limiting participation in the broader process to Five-plus-Five may also serve to ensure that the Arctic Five are not outnumbered by non-Arctic Ocean coastal States and entities. If participation in the broader process would be limited to Five-plus-Five, it would be open to challenges of inconsistency with the freedom of high seas fishing96 and the concept of ‘real interest’.97 The difficulty for such challenges is the current overall practice on membership or participation and the related issue of allocation of fishing opportunities in RFMOs and RFMAs that have a partial or exclusive high seas mandate. The existing membership or participation is commonly dominated by regional coastal States or entities, and developed distant water fishing States or entities. New entrants generally face considerable, and often insurmountable, obstacles to becoming members or participants and, if they nevertheless succeed, often have no prospect of significant (equitable) allocations of fishing opportunities. SPRFMO—one of the newest RFMO at the time of writing—is a notable exception to this overall practice. Not only was its negotiation entirely open, but any State or entity “having an interest in fishery resources”—which is thus much broader than a fishing interest—can become a member as well.98 This did not set a new trend, however, as the more recent negotiation of the NPFC was far less transparent and open, and new entrants need to be invited by consensus by the existing members.99 Therefore, even if more inclusive participation than Five-plus-Five in the broader process is presently considered by the Arctic Five but does not attract the necessary support, participation based on Five-plus-Five would still be largely consistent with the overall practice on membership and participation in RFMOs or RFMAs. No indication exists yet as to how the broader process will deal with new entrants or the allocation of fishing opportunities, if at all. For all these issues, it should be kept in mind that there are currently no commercially viable fisheries in the Central Arctic Ocean and this may remain unchanged for a considerable number of years to come. 96  Art. 116 of the LOS Convention. 97  Arts 8(3 and 5) and 9(2) of the Fish Stocks Agreement. 98  Art. 37(1) of the SPRFMO Convention, note 9 supra. 99  Art. 24(2) of the NPFC Convention, note 11 supra. See, however, the procedure in para. (3) of art. 24.

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Finally, as regards the substance of the broader process, the 2015 Oslo Declaration stipulates that the resulting measures are to be “consistent with” the 2015 Oslo Declaration. This reflects the Arctic Five’s intention to significantly shape the substance of the future international regulation of Central Arctic Ocean fisheries. The question should therefore be raised as to how much flexibility among the Arctic Five, and room for maneuvering and negotiation, there eventually will be? Or, to put it differently, to what extent will the substance of the Oslo Declaration amount to a fait accompli and preclude the newly invited States and entities from participating in the broader process in a way that would be both meaningful and consistent with their rights under international law? Here too, however, it must be emphasized that there are currently no commercially viable high seas fisheries and that the Oslo Declaration does not propose a ‘moratorium’, ‘ban’ or ‘freeze of fishing effort’. 5 Conclusions As this chapter has shown, international regulation of Central Arctic Ocean fisheries is by no means entirely absent. The global component of international fisheries law applies to the entire (Central) Arctic Ocean, however defined. Furthermore, even the Central Arctic Ocean is already currently subject to actual regional or subregional fisheries regulation. The North-East Atlantic Fisheries Commission (NEAFC) is generally accepted to be a regional fisheries management organization (RFMO) and exercises competence in the Atlantic segment of the Arctic Ocean. The Joint Norwegian-Russian Fisheries Commission (Joint Commission) appears to be viewed by Norway and the Russian Federation as a regional fisheries management arrangement (RFMA) in general, as well as for the purpose of the 2015 Oslo Declaration. The Joint Commission’s spatial competence is not explicitly defined and its two members/participants have asserted repeatedly that it also encompasses the Arctic Ocean. As argued in this chapter, such an assertion does not necessarily raise concerns on consistency with international law. However, even if all of the Arctic Five would agree that the Joint Commission is an RFMO or an RFMA for the purpose of the 2015 Oslo Declaration, or in general, this does not necessarily imply that they also agree that no gap exists in the Central Arctic Ocean’s coverage with RFMOs or RFMAs. Canada, Denmark (in respect of the Faroe Islands and Greenland) and/or the United States may for instance take the view that such a gap exists on account of the limited membership/participation in the Joint Commission.

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Following intergovernmental discussions related to Arctic Ocean fisheries between 2007–2009 in, among others, the Arctic Council and the United Nations General Assembly, the Arctic Five agreed that if a new international instrument on Arctic Ocean fisheries should be developed at all—which was not yet evident for all of them by late 2009 or early 2010—its development should be initiated and led by the Arctic Five outside the framework of (other) existing mechanisms. The Arctic Ocean coastal States process on Arctic Ocean fisheries has thus far culminated in three science meetings, and four policy/ governance meetings on which information was made publicly available. The most recent of the latter involved the signature of the 2015 Oslo Declaration, which contains commitments to implement several interim measures and envisages a broader process involving non-Arctic States (and entities) that could lead to the adoption of an RFMA on Central Arctic Ocean fisheries. The key commitment of the 2015 Oslo Declaration is that the Arctic Five will not authorize their vessels to engage in commercial fishing in the Central Arctic Ocean merely pursuant to their own laws and regulations, and that international regulation must be in accordance with ‘recognized international standards’. This abstention from unilateralism does not affect commercial high seas fishing by vessels flying the flag of members/participants of NEAFC, the Joint Commission or future RFMOs or RFMAs. Such fishing would then have to take place within their regulatory areas as well as pursuant to their substantive regulations, which must be in accordance with ‘recognized international standards’. This latter phrase is likely to be intended to comprise key obligations of international fisheries law, such as ecosystem and precautionary approaches to fisheries management, with specific attention to new and exploratory fisheries. This key commitment has been criticized for being ‘utilization-oriented’,100 presumably because the critics preferred an indefinite ban or moratorium on Central Arctic Ocean fishing. Such criticism is to some extent understandable as the chosen approach involves a potentially higher risk for, inter alia, Arctic fish stocks and ecosystems. On the other hand, however, this criticism insufficiently credits the envisaged action for its pro-active and precautionary stance and implicit dismissal of a lassez-faire, lassez-aller attitude. While the key commitment is not framed as a ban, moratorium or freeze of fishing effort, it nevertheless constitutes an indefinite prohibition of high seas fishing, which can be lifted when certain procedural and substantive conditions are met. The procedural condition is multilateral agreement through RFMOs or RFMAs, and the 100  Wegge, note 62 supra, at p. 337 observes that “Finland, the European Parliament as well as various NGOs” have voiced such criticism.

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substantive condition is regulation in accordance with ‘recognized international standards’. In view of the current shortcomings in scientific knowledge and fisheries data relating to the Central Arctic Ocean, the threshold created by this substantive condition should not be underestimated. The procedural condition also implies that more conservation-oriented States have some leverage over more utilization-oriented States. Finally, a ban, moratorium or freeze of fishing effort on Central Arctic Ocean fisheries which would be both indefinite and unconditional is unlikely to have been acceptable for most of the Arctic Five, due to the precedent-setting effects for the regulation of high seas fishing in general. The prediction that large-scale (commercial) fishing in the Central Arctic Ocean is unlikely to be commercially viable in the near future is very plausible. A prediction that is not merely plausible but extremely likely to prove correct is that large-scale fisheries will become commercially viable within coastal State maritime zones of the Arctic Ocean earlier than in its high seas area. The more immediate challenge is thus for Arctic Ocean coastal States to ensure that commercial fishing in their own maritime zones is also regulated in accordance with ‘recognized international standards’, with particular reference to new and exploratory fisheries. Such practice will—for reasons of credibility and in light of the notion of compatibility—be crucial for securing support among non-Arctic States and entities to participate in the envisaged broader process and its eventual adoption of a regional instrument on Central Arctic Ocean fisheries. At the time of writing, only the Arctic Five had, through the 2015 Oslo Declaration, made clear commitments regarding Central Arctic Ocean fisheries and the envisaged broader process still seemed in a design-phase without agreement on rules of procedure, date and venue of a first meeting, and who will participate besides the Arctic Five. All non-Arctic ocean coastal States and entities nevertheless continue to be bound to their obligations under the global component of international fisheries law and are required to exercise the necessary jurisdiction in relevant capacities, including as flag, coastal and port States.

CHAPTER 20

Assertion of Entitlement to Shared Fish Stocks Bjørn Kunoy* Abstract The management of transboundary resources requires the involvement of all relevant stakeholders in order to ensure a sustainable management of shared fish stocks the management of which per definition is subject to plurilateral assertions of entitlement. The relevant stakeholders must be guided by objective criteria with a view to seek a holistic management scheme applicable throughout the entire range of the fish stock. This may be a difficult task as is illustrated by the recent management schemes of several transboundary fish stocks that migrate in the Northeast Atlantic. Coastal States’ discretionary rights to determine the total allowable catch in maritime areas under national jurisdiction is one of the exceptions to the compulsory dispute settlement mechanism under Part XV, section 2 of the United Nations Convention on the Law of the Sea. This does not imply that the comprehensive dispute settlement mechanism, including compulsory conciliation procedures under section 3 of Part XV, is inoperative with regard to disputes that concern coastal States’ obligations relating to the conservation and management of shared fish stocks.

1 Introduction The United Nations Convention on the Law of the Sea (Convention)1 embeds a comprehensive and compulsory dispute settlement mechanism, thereby marking a major difference in comparison to the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas from 1958 * Dr. Bjørn Kunoy is Legal Adviser, Foreign Affairs Department, Faroe Islands. The author was appointed Agent and Counsel in the United Nations Convention on the Law of the Sea Annex VII arbitral tribunal proceedings The Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in respect of the Faroe Islands v. the European Union), instituted on 16 August 2013 and terminated by joint agreement on 21 August 2014. The views expressed in this paper are strictly personal to the author and do not necessarily represent those of the Government of the Faroes. 1  1833 UNTS, 396 (entered into force on 16 November 1994).

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(Geneva Convention).2 Consistent with Article 286(1) of the Convention, a party to a dispute that relates to the interpretation or application of the Convention may, as appropriate, unilaterally prompt the dispute settlement mechanism under section 2 of Part XV of the Convention. There are also exceptions to the material scope of section 2 of Part XV but these are exhaustively enumerated. One of these relates to coastal States’ exercise of powers in the Exclusive Economic Zones (EEZs).3 Yet, while coastal States’ discretionary rights to determine the total allowable catches in maritime areas under national jurisdiction is one of the general exceptions to the compulsory dispute settlement mechanism of the Convention, that is not to say that there are no available third party dispute settlement mechanisms in relation to disputes that relate to coastal States’ undertakings of various obligations pursuant to Part V of the Convention. A leitmotif for embracing such a comprehensive dispute settlement mechanism was part of an overall compromise during the Third United Nations Conference on the Law of the Sea (Third Conference). A central part was conceived in order to avoid the permissibility of unilateral interpretations as a result of a lack of compulsory dispute settlement mechanisms.4 Indeed, this was a reason for which constructively ambiguous provisions did not hinder the consensus-understanding. As was observed by Stevenson and Oxman, official representatives of the United States during the Third Conference, “there is simply too much room in the treaty for misunderstanding, abuse of

2  559 UNTS, 285 (entered into force on 20 March 1966). 3  Article 297(3)(a) of the Convention provides: “Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with section 2, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulation”. 4  The dispute settlement mechanism concerning the interpretation or application of the provisions in any of the Geneva Conventions of 1958 (these were: (i) the Convention on the Territorial Sea and the Contiguous Zone; (ii) the Convention on the High Seas; (iii) the Convention on Fishing and Conservation of the Living Resources of the High Seas; and (iv) the Convention on the Continental Shelf”) was not compulsory. The dispute settlement mechanism was foreseen in the Optional Protocol concerning the Compulsory Settlement of Disputes, the latter of which only achieved a total of 38 ratifications. For a criticism regarding the transposition of such approach to what became the Convention, see statement of Ambassador Galindo Pohl, U.N.Doc. A/CONF.62/SR.51, p. 4.

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power, and interference with rights on the basis of unilateral interpretation.”5 Elsewhere it has also been observed that participants to the Third Conference would be more willing “to accept certain ambiguity and imprecision if they are confident” of a compulsory dispute settlement mechanism.6 A recent dispute between the European Union and the Faroe Islands relating to the management of shared fish stocks, one of which was the AtlantoScandian herring, resulted in the adoption of coercive economic measures.7 These were adopted on the basis of a unilateral determination that the Faroe Islands had breached various obligations under the Convention.8 That action of the EU was preceded by the institution of arbitral tribunal proceedings pursuant to Annex VII of the Convention,9 by which the Kingdom of Denmark in respect of the Faroe Islands (Faroe Islands) submitted a relief claiming that by using imminent threats of coercive economic measures in relation to the management of the Atlanto-Scandian herring, the EU had breached its obligations under the Convention. The coercive market measures adopted by the European Union were based on Basic EU Regulation 1026/2012, which was adopted in the midst of disagreements on the management of Northeast Atlantic mackerel. Its utilisation against the Faroe Islands marked its first application. The utilization of such unilateral instruments, based on alleged violations of 5  John R. Stevenson, Bernard H. Oxman, “The Third United Nations Conference on the Law of the Sea”, AJIL, 1975, vol. 69, p. 795. 6  William T. Burke, National and International Law Enforcement in the Ocean, University of Washington Press, Seattle, 1975, p. 134. 7  EU Commission Implementing Regulation 793/2013 of 21 August 2013, “establishing measures in respect of the Faroe Islands to ensure the conservation of the Atlanto-Scandian herring stock”. Official Journal of the European Union L 223/1, 21 August 2013 (hereinafter the “Implementing Regulation”). 8  Preambular paragraph 10 of the Implementing Regulation reads: “By those actions, the Faroe Islands have failed to cooperate with the Union and with the other coastal States in the management of a stock of common interest, the Atlanto-Scandian herring, and have failed to comply with the obligations under Article 61(2), Article 63(1) and (2) and Articles 118, 119 and 300 of the United Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS) and Articles 5 and 6 and Article 8(1) and (2) of the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA)”. 9  The Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in respect of the Faroe Islands v. The European Union). The arbitral tribunal was composed of Judge Thomas A. Mensah (Presiding Arbitrator), Professor Gerrard Hafner, Professor Francisco Orrego Vicuña, Dr M.C.W. Pinto, Judge Judge Rüdiger Wolfrum. See more at http://pca-cpa.org/showpage .asp?pag_id=1554.

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obligations under the Convention in relation to the management of shared fish stocks, marks not only a singular disruption with how entitlements to shared fish stocks are ascertained but also how they are done without regard to available tools under Part XV of the Convention to resolve disputes on the management of shared fish stocks. In the aftermath of the institution of arbitral tribunal proceedings under Annex VII of the Convention, and concurrent proceedings under the World Trade Organization Dispute Settlement Understanding,10 both parties to the dispute found a modus vivendi consistent with which the situation was normalized. Yet, although the measure has been abrogated, and the proceedings terminated, the above mentioned recent events call for an assessment not only of the appropriateness of the use of such unilateral coercive market measures as instruments in the interstate endeavours to manage shared fish stocks, but also of its consistency with Part XV of the Convention whose operating provisions are piece and parcel of the package deal, which led to the conclusion of the Convention.11 The approach undertaken in this paper will examine the above mentioned on a comprehensive basis but leaving aside the material elements that opposed the Faroe Islands and the European Union in the previously mentioned dispute. It will be concluded that the assertion of entitlements to shared fish stocks should be conducted pursuant to equitable criteria, while parties to disagreements on the management of shared fish stocks, consistent with the relevant provisions of Part XV of the Convention, are obligated to seek to resolve the dispute by making use of the available procedures under section 3, and, as appropriate, section 2 of Part XV of the Convention. 2

The Notion of ‘Special Interest’ under the Geneva Convention

One of the crucial elements underlying discussions during the commencement of the Geneva Conference in 1958 concerned the exclusive fisheries rights in the area beyond the 12 nm distance line. It is well-known that there were various attempts by some nations in the aftermath of the Truman

10  DS/469, European Union—Measures on Atlanto-Scandian herring. The Kingdom of Denmark in respect of the Faroe Islands lodged the complaint on 4 November 2013. 11  For a thorough and comprehensive reading of the travaux préparatoires relating to Part XV of the Convention, see Gregoire Lehoux, “La Troisième Conférence sur le droit de la mer et le règlement obligatoire des différends”, Annuaire canadien de Droit inter­ national public, 1980, vol. 18, pp. 31–90.

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Proclamation12 to increase the outer limit of the fisheries jurisdiction for the purpose of managing the natural resources. This issue did not bolster consensus. There was no agreement on the extension of national jurisdiction to the maritime areas superjacent to the continental shelf to a distance further seaward than the maximum outer limit of the territorial sea, or, as relevant, the contiguous zone. Thus, the Geneva Convention remained faithful to the principle that beyond the territorial seas13 were the high seas. As many other items that were discussed during the International Technical Conference on the Conservation of the Living Resources of the Sea, held in Rome from 18 April to 10 May 1955,14 and subsequently influenced in significant details the outcome of the Geneva Convention, the notion of special interest in the area adjacent to the territorial sea was subject to lengthy discussions, and was also included in the final report.15 This notion made its introduction to the Geneva Convention, which embraced a concept recognizing coastal States’ special interest in some fish stocks. Consistent with Article 6(1) of the Geneva Convention, coastal States were considered to have a special interest in the area adjacent to the outer limits of the territorial sea.16 Thus, the special interest was a geographical concept consistent with which coastal States were vested with powers to adopt management measures with regard to the species 12  Truman Proclamation Concerning the Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas, Presidential Proclamation No. 2668, 16 USC sec. 741. 13  The Geneva Convention on the Territorial Sea and Contiguous Zone, UNTS, vol. 516, 205 endorsed the idea of a contiguous zone up to 12 M from the baselines. 14  By the adoption of UNGA resolution 900 (IX) of 14 December 1954 (International Technical Conference on the Conservation of the Living Resources of the Sea), the General Assembly requested the Secretary-General to convene an international technical conference at the headquarters of the Food and Agriculture Organization of the United Nations to study the problem of the international conservation of the living resources of the sea and to make appropriate scientific and technical recommendations which shall take into account the principles of the present resolution and shall not prejudge the related problems awaiting consideration by the General Assembly. It was also decided to refer the report of the said scientific and technical conference to the ILC as a further technical contribution to be taken into account in its study of the questions. 15  In 1955 the Rome Conference of technical experts acknowledged that in the formulation of conservation programmes “account should be taken of the special interests of the coastal States in maintaining the productivity of the resources of the high seas near to its coast”. Rome Technical Report (1955), para. 18. 16  According to Article 6(1) of the Geneva Convention, coastal States have “a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea”.

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in question, whose territorial scope of application would extend to the high seas. Pursuant to Article 7(1) of the Geneva Convention, the coastal State could, provided three cumulative criteria were fulfilled,17 adopt unilateral conservation measures for any fish stock in any area of the high seas adjacent to its territorial sea, provided that the negotiations with the relevant states whose vessels were fishing on such grounds had not led to an agreement within a period of six months. Conservation and management measures adopted in accordance with Article 6 of the Geneva Convention were, in principle,18 compulsory, and therefore opposable vis-à-vis vessels flying the flag of other contracting parties to the Geneva Convention.19 This does not equate to an understanding that such unilateral measures could not be contested. Compulsory dispute settlement mechanisms were, in accordance with Articles 9–12 of the Geneva Convention, available to contest the legality, and hence opposability, of any management and conservation measure adopted pursuant to Article 7(1) of the Geneva Convention.20 Thus, consistent with the principles underlying the notion of “special interest”, some states were attributed primary rights with regard to the management of fisheries resources on the high seas. Indeed, the concept of “special interest” was a central one in the Geneva Convention,21 but paradoxically also the main reason for which the Geneva Convention was 17  Pursuant to Article 7(2) of the Geneva Convention these criteria are (i) the urgent need of such management and conservation measures, (ii) the measures should be adopted on the basis of scientific findings, and (iii) the measures do not discriminate in form or in fact against vessels flying the flag of another State. 18  Art. 7(4) of the Geneva Convention provides: “If the measures are not accepted by the other States concerned, any of the parties may initiate the procedure contemplated by article 9. Subject to paragraph 2 of article 10, the measures adopted shall remain obligatory pending the decision of the special commission.” 19  On this issue see Peter G.G. Davies, Catherine Redgewell, “The International Legal Regulation of Straddling Fish Stocka”, BYIL, 1996, vol. 67, pp. 224–226. 20  This procedure formed a precedent for the dispute settlement mechanism in the London Convention on Fisheries of 9 March 1964 whose Article 12 reads as follows: “Unless the parties agree to seek a solution by another method of peaceful settlement, any dispute which may arise between Contracting Parties concerning the interpretation or application of the present Convention shall at the request of any of the parties be submitted to arbitration in accordance with the provisions of Annex II to the present Convention”. The London Fisheries Convention entered into force on 15 March 1966. 21  This is also underscored by the fact that pursuant to Article 19(1) of the Geneva Convention, the Articles 6–7 together with the provisions governing the dispute settlement mechanism, of the Geneva Convention are among the articles from which no reservations were permitted.

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never ratified by the high seas fishing nations, who were critical for its effective application.22 Although there were some attempts to maintain the notion of “special interest” during the Third Conference, it was abandoned. It is fair to assume that the notion was superseded in the course of the Third Conference by the then-already crystallized customary rule of international law, which was to be included in Part V of the Convention.23 While the expression of adjacency was not defined,24 thereby leaving ambiguity with regard to coastal States’ territorial extent of entitlement deriving from Article 6(1) of the Geneva Convention, it continues to have a historical interest, given the fact that powers hitherto entrusted to coastal States to adopt unilateral management measures on the high seas opposable vis-à-vis third parties, cover areas which subsequently have been included in the maritime area of national jurisdiction within which coastal States exercise sovereign rights.25 The management of fisheries resources within this area is conducted pursuant to Part V of the Convention and, as appropriate, the 1995 Agreement. 3

Transboundary Fish Stocks under the Convention

The relevant provisions in Part V, in conjunction with Article 297(3)(a) of the Convention, together with the history of the negotiations during the Third Conference, leave no doubt to the fact that the coastal State has full discretion to determine the allowable catch in its EEZ pursuant to its own needs and premises. Yet, the architecture of Part V of the Convention and, as appropriate, Part VII, gives the impression, as has been observed elsewhere, that all fish 22  Peter G.G. Davies, Catherine Redgewell, “The International Legal Regulation of Straddling Fish Stocks”, op. cit. 19., pp. 224–226. 23  Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 December 1995, UNTS 2167. 24  The International Law Commission considered the idea of including a 100 nautical mile area which would correspond to the special interest of coastal States. This idea was abandoned, however, and did not appear in the draft articles. On this issue see Myres S. McDougal, William T. Burke, Public Order of the Oceans, Yale University Press, 1962, p. 989. 25  Management and conservation measures of stocks which today are within the ambit of Part V of UNCLOS were, prior to the establishment of the 200 nm fishery zone, subject to high seas conservation and management measures of regional fisheries management organizations. See, e.g., Annex E to the Report of the Eleventh Meeting of Contracting Parties to the North-East Atlantic Fisheries Commission, 15 August 1973, Recommendations 8 for North Sea Herring, and 11 for Northeast Atlantic Mackerel, respectively.

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stocks remain solely within the fisheries jurisdiction of a single coastal State.26 The above is of particular interest with regard to fish stocks which are not discrete, i.e. that are not confined to one fisheries jurisdiction alone and whose biological state may be volatile and subject to changing migratory patterns, the management of which is apt to require adaptations in light of the required circumstances. 3.1 Shared Fish Stocks For obvious reasons, third states would have (were one to rely on a concept embraced in the Geneva Convention) no ‘special interest’ in the EEZ as a third state. As such they would be vested with powers akin to those under Article 7(1) of the Geneva Convention. It follows accordingly that cooperation in relation to the management of shared fish stocks incurs at a level of which the rights, and obligations, of the relevant actors are juxtaposed. The management of shared fish stocks requires joint actions of all involved states to ensure a sustainable exploitation and conservation of the relevant fish stocks. It is difficult not to agree with the view that in many regards the advantages of joint management of fish stocks whose migratory pattern is not confined to a sole maritime jurisdiction, and therefore requires the involvement of all relevant actors to fulfil the duties under Article 61 of the Convention, “are so evident that in the long term neighbouring countries are almost bound to reach an agreement.”27 Yet, cooperation can be difficult when it may result in non-harmonized unilateral quotas impairing a sustainable exploitation of the shared resource. The difficulties need not be limited to determining the total allowable catch (TAC) but also, as relevant, the allocation of the shared resource, including the determination of the relevant factors determining the respective shares.28 There are material exceptions to coastal States’ residual, and discretionary, powers for deciding the allowable catch in their respective fisheries zones. These relate to anadromous stocks in which the state of origin, i.e., in whose waters the relevant anadromous stocks originate, is, consistent with Article 66 26  Vaughan Lowe, Robin Churchill, The Law of the Sea (2nd ed.), Manchester University Press, Manchester, 1988, p. 234. See also David Balton, “Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks”, ODIL, 1996, vol. 27, pp. 126–127. 27  Parzival Copes, “The Impact of UNCLOS III on Management of the World’s Fisheries”, Marine Policy, 1981, vol. 5, p. 221. 28  On this issue see generally Moammed Dahmani, The Fisheries Regime of the Exclusive Economic Zone, Martinus Nijhoff Publishers, Dordrecht, Boston, Lancaster, 1987, pp. 113–116.

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of the Convention, seen vested with the primary interest and responsibility for the management of such stocks.29 A similar exception is also recognized with regard to catadromous stocks in which the coastal State in whose waters the species spend the greater part of their life cycle has responsibility for the management of such catadromous stocks. Consistent with Article 67 of the Convention, it is incumbent upon the coastal State with such responsibility to ensure the ingress and egress of the migrating fish.30 29  Article 66 of the Convention reads as follows: “1. States in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks. 2. The State of origin of anadromous stocks shall ensure their conservation by the establishment of appropriate regulatory measures for fishing in all waters landward of the outer limits of its exclusive economic zone and for fishing provided for in paragraph 3(b). The State of origin may, after consultations with the other States referred to in paragraphs 3 and 4 fishing these stocks, establish total allowable catches for stocks originating in its rivers. 3. (a) Fisheries for anadromous stocks shall be conducted only in waters landward of the outer limits of exclusive economic zones, except in cases where this provision would result in economic dislocation for a State other than the State of origin. With respect to such fishing beyond the outer limits of the exclusive economic zone, States concerned shall maintain consultations with a view to achieving agreement on terms and conditions of such fishing giving due regard to the conservation requirements and the needs of the State of origin in respect of these stocks. (b) The State of origin shall cooperate in minimizing economic dislocation in such other States fishing these stocks, taking into account the normal catch and the mode of operations of such States, and all the areas in which such fishing has occurred. (c) States referred to in subparagraph (b), participating by agreement with the State of origin in measures to renew anadromous stocks, particularly by expenditures for that purpose, shall be given special consideration by the State of origin in the harvesting of stocks originating in its rivers. (d) Enforcement of regulations regarding anadromous stocks beyond the exclusive economic zone shall be by agreement between the State of origin and the other States concerned. 4. In cases where anadromous stocks migrate into or through the waters landward of the outer limits of the exclusive economic zone of a State other than the State of origin, such State shall cooperate with the State of origin with regard to the conservation and management of such stocks. 5. The State of origin of anadromous stocks and other States fishing these stocks shall make arrangements for the implementation of the provisions of this article, where appropriate, through regional organizations”. 30  Article 67 of the Convention reads as follows: “1. A coastal State in whose waters catadromous species spend the greater part of their life cycle shall have responsibility for the management of these species and shall ensure the ingress and egress of migrating fish. 2. Harvesting of catadromous species shall be conducted only in waters landward of the outer limits of exclusive economic zones. When conducted in exclusive economic zones, harvesting shall be subject to this article and the other provisions of this Convention concerning fishing in these zones. 3. In cases where catadromous fish migrate through

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Other than the above-mentioned exceptions with regard to the sovereign rights to explore and exploit, conserve and manage living resources from which discretionary powers flow with regard to the establishment of allowable catches in the EEZ, Part V of the Convention contains also obligations for the conservation and management of fish stocks which do not fall in either of the above-mentioned categories but whose migratory patterns require cooperation for the harvest to produce a maximum sustainable yield. Leaving aside the framework for the management of highly migratory species,31 the Convention provides some basic rules which the relevant actors are to fulfil in relation to the management of shared fish stocks. Article 63(1) of the Convention deals with where a fish stock migrates between the fisheries jurisdiction of two or more coastal States. Such coastal States shall “seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks.”32 The obligation incumbent upon the parties is an obligation of conduct.33 the exclusive economic zone of another State, whether as juvenile or maturing fish, the management, including harvesting, of such fish shall be regulated by agreement between the State mentioned in paragraph 1 and the other State concerned. Such agreement shall ensure the rational management of the species and take into account the responsibilities of the State mentioned in paragraph 1 for the maintenance of these species”. 31  See Article 64 of the Convention. 32  Excerpt from Article 63(1) of the Convention. 33  Professor Orrego Vicuña has characterized the obligation under Article 63(1) of the Convention as follows: “[t]here is no obligation to enter into such agreements as evidenced by the expression ‘shall seek’ ”. Francisco Orrego Vicuña, The Exclusive Economic Zone— Regime and Legal Nature under International Law, Cambridge Studies in International and Comparative Law—New Series, Cambridge University Press, Cambridge, 1989, p. 61. Elsewhere the same author also noted that the States involved “s’efforceront de s’entendre sur les mesures nécessaires de conservation, soit directement ou au moyen des organisations appropriées. On peut observer qu’il s’agit de mesures à caractère facultatif, comme le révèle l’expression ‘s’efforcent’; en outre, chaque Etat côtier maintient inaltérablement ses droits de souveraineté sur lesdites espèces au-dedans de sa [EEZ], conformément a l’article 56, le régime général de la pêche, déjà examiné, leur étant applicable”. Francisco Orrego Vicuña, “La zone économique exclusive: régime et nature juridique dans le droit international”, RCADI, 1986, vol. 199, pp. 61. It has also been observed that “[a]ll [the coastal State] is required to do is to seek to agree with the fishing state or states on the relevant measures.” Kwame Mfodwo, Martin Tsamenyj, Sam Blay, “The Exclusive Economic Zone: State Practice in the African Atlantic Region”, ODIL, 1989, vol. 20, p. 461. Further, William Burke has noted that the obligation under Article 63(1) cannot “be described as very consequential”. William T. Burke, “The Law of the Sea Convention Provisions on

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There are doctrinal and conceptual reasons for creating obligations of conduct rather than obligations of result.34 Among such reasons is the likelihood for agreement being reached on the relevant matter, given that an obligation of conduct has distinctive characteristics from an obligation of result.35 As Jean Combacau rightly notes “là où la réalisation en est hautement probable, la loi ou le contrat instituent des obligations de résultat; là où elle est plus essentiellement aléatoire, ils se bornent à réduire l’aléa et ne mettent en oeuvre qu’une obligation de moyens.”36 The fact that the obligation under Article 63(1) of the Convention is an obligation of conduct, and not of result, is a simple emanation of the regime established during the Third Conference, in which coastal States’ rights to the natural resources within the maritime areas under national jurisdiction are sovereign. Consistent with the black letter of the Convention the power to establish allowable catches in the EEZ is discretionary. Yet, this does not mean that the obligation of conduct does not include substantive obligations. In its now famous judgment in the North Sea Continental Shelf Cases the Court stated that the obligation to seek to reach agreement implied that the parties had an obligation to conduct themselves such that the negotiations are meaningful “which will not be the case when either of them insists upon its own position without contemplating any modification of it.”37 In the Lanoux Lake arbitral decision, the tribunal concluded that undue delays and systematic refusals to take into account the views presented by other parties to the dispute, could constitute a violation of an obligation of conduct.38 More recently, the ICJ described the obligation to negotiate as requiring “at the very

Conditions of Access to Fisheries Subject to National Jurisdiction”, Oregon Law Review, 1984, vol. 63, p. 106. 34  See Bjørn Kunoy, “The Ambit of Pactum de Negotiatum in the Management of Shared Fish Stocks: A Rumble in the Jungle”, Chinese Journal of International Law, 2012, vol. 11(4), pp. 689–726. 35  In Railway Traffic between Lithuania and Poland, the Permanent Court of International Justice held in a now-famous ruling that “an obligation to negotiate does not imply an obligation to reach an agreement”. Railway Traffic between Lithuania–Poland, Advisory Opinion, 15 October 1931, Ser. A/B, No. 42, 16. 36  Jean Combacau, “Obligations de résultat et obligations de comportement: quelques questions et pas de réponse”, in Le droit international: unité et diversité: Mélanges offerts à Paul Reuter, Pedone, 1981, p. 196. 37  ICJ, Netherlands v. Germany / Denmark v. Germany (North Sea Cases), ICJ Rep. 1969, p. 43, para. 85. 38  Arbitral tribunal, Lanoux Lake, Spain / France, Award, 16 November 1957, RIAA, vol. XII, pp. 306–307, para. 11.

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least—a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute.”39 The efforts undertaken among relevant coastal States involved in negotiations striving to agree on, and thereby establish, a joint management regime with regard to the conservation of a shared fish stock may at times be fruitless. The coastal States involved in the negotiations participate on the premise that the sovereign rights to manage their natural resources are inalienable. From this it follows that in stalemate situations, which prevent the conclusion of joint management arrangements, the states involved are “free to exercise [their] sovereign rights under Articles 61 and 62.”40 This statement cannot be understood as exonerating the states involved from the duty genuinely to seek agreement on a joint management regime applicable for the relevant shared fish stock. Indeed, the challenges underlying the fulfilment of the obligation under Article 63(1) of the Convention may, inter alia, be differences in the understanding of the biological distribution of the stock assuming that such a determination is a guiding criterion relating to governing factors for determining allocation keys in negotiations on the management of shared fish stocks that are pursued under Article 63(1) of the Convention. In any event, where agreement is not reached, the coastal States may, consistent with the Convention, except otherwise agreed, establish unilateral quotas, which are not necessarily coordinated, implying that the aggregate of the stakeholders quotas may go beyond what is scientifically advisable. 3.2 Straddling Fish Stocks Where a stock straddles the EEZ of one or more coastal States and the high seas adjacent to that zone, the coastal State(s) and the high seas fishing nations “shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.”41 Although akin to the obligation under Article 63(1), the obligation under Article 63(2) of the Convention embraces some differences relating to the material and geographical contours. Rather than targeting “measures necessary to coordinate and ensure the conservation

39  ICJ, Case Concerning Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, ICJ Rep. 2011, para. 157. 40  Kwame Mfodwo, Martin Tsamenyj, Sam Blay, “The Exclusive Economic Zone: State Practice in the African Atlantic Region”, op. cit., p. 461. 41  Excerpt from Article 63(2) of the Convention.

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and development of such stocks”,42 the obligation in Article 63(2) targets measures “necessary for the conservation of these stocks”, implying, it would seem, a higher threshold as to the outcome of the obligation of conduct than under Article 63(1) of the Convention. Further, while Article 63(1) by definition refers exclusively to the areas under national jurisdiction, Article 63(2) targets measures that conserve “these stocks in the adjacent area,”43 and thereby is singular on a non-insignificant point vis-à-vis Article 64 of the Convention.44 The fact that the obligation in question is not an obligation of result implies that no prescriptive measures may be issued from a third organ, at least as to the coastal States’ exercise of sovereign rights for establishing allowable catches within the EEZ.45 The same does not apply to the high seas fishing nations as the establishment of high seas quotas falls within the scope of Part VII of the Convention and the competence of relevant regional fisheries management organizations (RFMO). Further, where an RFMO is established without compulsory dispute settlement mechanisms, fulfilment of high seas fishing nations’ obligations under, inter alia, Part VII of the Convention remains, in principle, subject to Part XV of the Convention. Compatibility of coastal States and high seas fishing nations’ quotas with regard to the management of straddling fish stocks is essential to maintain a sustainable management regime and the obligations under Article 63(2) 42  Excerpt from Article 63(1) of the Convention (emphasis added). 43  Excerpt from Article 63(2) of the Convention. 44  Article 64 of the Convention provides: “1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work. 2. The provisions of paragraph 1 apply in addition to the other provisions of this Part” (emphasis added). 45  During the Third Conference some participants proposed an amendment to Article 63(2) of UNCLOS, which would confer the International Tribunal for the Law of the Sea (ITLOS) with powers to prescribe management and conservation measures with regard to the exploitation of straddling stocks, which would not necessarily be limited to the high seas, but the proposal did not achieve consensus. Proposal by Australia, Canada, Cap Verde, Iceland, Philippines, Sao Tomé-et-Principe, Senegal and Sierra Leone, Doc. A/CONF.62/L.114. As has been observed elsewhere, Article 63(2) of UNCLOS “reste fidèle au principe de la haute mer et ne prévoit pas de conséquences pour le cas où les ententes prévues n’étaient pas obtenues”. Tulio Treves, “Codification du droit international des états dans le droit de la mer”, RCADI, 1990, vol. 223(V), p. 231.

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appeared too rudimentary. As a result of dissatisfactions with regard to the rules, or insufficient rules, as to the management of straddling and highly migratory fish stocks, it appeared necessary to further develop the interactions between Articles 63(2), 64 and Part VII of the Convention.46 It is in this context that the United Nations Conference on Environment and Development (UNCED) and the United Nations General Assembly conveyed the settling of a conference to implement the relevant provisions of the Convention.47 The outcome of this conference was the 1995 Agreement, which seeks to further develop the international legal regime underlying the management of stocks that fall within the material scope of Articles 63(2) and 64 of UNCLOS, in conjunction with Part VII thereof. One of the major achievements of the 1995 Agreement is the compatibility criterion, which seeks to ensure compatible measures beyond and within areas under national jurisdiction,48 although Article 7(1)(a–b) also enshrines the distinction of importance which governs Articles 63(2) and 64 of the Convention, respectively. Despite enjoying universal support, the necessity of compatibility between the management and conservation measures within and beyond the 200 M distance line was only achieved with difficulty as appears in an unambiguous manner in the instrument itself.49 Although the compatibility criterion underlying Article 7(2) of the 1995 Agreement assumes that the duty to seek compatible conservation and management measures in the high seas and the areas under national jurisdiction applies mutually, i.e. for coastal States and high seas fishing nations, the obligation does not alter the premise underlying Article 63(2) of the Convention.50 46  On this issue See William T. Burke, “Fishing in the Bering Sea Donut: Straddling Stocks and the New International Law of Fisheries”, Ecology Law Quarterly, 1989, vol. 16, p. 285. 47  Agenda 21, Chapter 17, para. 17.49(e), UN.Doc.A/CONF.151/26 (vol. II), p. 45. 48  The relevant parts of the chapeau of Article 7(2) of the 1995 Agreement reads as follows: “Conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety. To this end, coastal States and States fishing on the high seas have a duty to cooperate for the purpose of achieving compatible measures in respect of such stocks”. 49  Article 7(3) of the 1995 Agreement reads as follows: “In giving effect to their duty to cooperate, States shall make every effort to agree on compatible conservation and management measures within a reasonable period of time”. 50  Consistent with Article 4 of the 1995 Agreement, “[n]othing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the Convention. This Agreement shall be interpreted and applied in the context of and in a manner consistent with the Convention”.

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The Convention and, where relevant, the 1995 Agreement provide obligations that are incumbent upon coastal States when conducting the exercise of their sovereign rights to conserve and manage shared fisheries resources. As mentioned earlier, the material obligations under Article 63(1) and 63(2) differ slightly, but both obligations rely on the fundamental understanding that the obligations thereunder do not alter the principle that no third State has a “special interest” vis-à-vis the fish stocks located in a maritime jurisdiction of a third coastal State. Thus, the exercise of coastal States’ powers and prerogatives under Article 61 and 62 cannot, except otherwise agreed, be subordinated or in any way superseded by a third country’s interests where no comprehensive management arrangements are in place applicable to the relevant shared fish stocks. 3.3 The “due regard” A rule of international law needs to be understood, and interpreted, in the context of which it applies. This general rule of law has a long standing in international law51 and has a solid consecration in the international customary rules of treaty interpretation.52 By the same token the sovereign rights to establish management measures within a distance not extending 200 nm from the baselines is not a States’ domaine réservé.53 The management of a shared fish stock must also take into account the relevant duties under the Convention and, consistent with Article 293 of the Convention, other rules of international law from which transpire, inter alia, the principles of good neighborliness, 51  As Oppenheim noted already in 1912: “A State, in spite of its territorial supremacy, is not allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring State”. Lassa Oppenheim, International Law: A Treatise (2nd ed.), Longmans, Green, and Company, 1912, p. 220. 52  Article 31(1) of the Vienna Convention on the Law of the Treaties provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. 53  As has been observed by Judge Rüdiger Wolfrum, “[t]he duty to cooperate denotes an important shift in the general orientation of the international legal order. It balances the principle of sovereignty of States and thus ensures that community interests are taken into account vis-à-vis individualistic State interests”. ITLOS, Separate Opinion of Judge Rüdiger Wolfrum, Mox Plant Case (Ireland v. United Kingdom), Order of 3 December 2001, p. 4. See also Joint Declaration by Judge Kamal Hossain and Bernard Oxman in Land and Reclamation Case: “The right of a State to use marine areas and natural resources subject to its sovereignty or jurisdiction is broad but not unlimited. It is qualified by the duty to have due regard to the rights of other States”. ITLOS, Joint Declaration of Judges ad hoc Kamal Hossain and Bernard Oxman, Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Order of 8 October 2003.

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due diligence and the duty, where required, to cooperate.54 As was confirmed in the now famous ruling of the arbitral tribunal in the Trail Smelter Case, “[u]nder the principles of international law, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”55 Whilst that finding was established in relation to air pollution the underlying principle has been recognized as forming part of general international law,56 one component of which, the law of the sea, would not be an exception, as evidenced in the Stockholm Declaration.57 Coastal States have sovereign rights to exploit the natural resources within their EEZs. Ownership is a right in one’s patrimony, whereas possession is merely the exercise in fact of the real right. Although these rights are akin to ownership in the sense that only the “owner”, to use that expression, or the holder of the right, i.e. the coastal State, may use, enjoy or, to some extent, dispose (usus, fructus, abusus) the natural resources within its national jurisdiction, the coastal State shall have due regard to the rights and duties of other States. Consistent with Article 56(2) of UNCLOS, within a coastal State’s fisheries jurisdiction, “the coastal State [in the exercise of its rights and jurisdiction] shall have due regard to the rights and duties of other states and shall act in a manner compatible with the provisions of this Convention.”58 It is difficult to disagree with the contention that “in establishing conservation and management measures under Article 61, the requirements of Article 63 54  The “due regard” principle is reflected in various provisions in the Convention: Articles 27(4), 39(3)(a), 56(2), 58(3), 60(3), 66(3)(a), 79(5), 87(2), 142(1), 148, 161(4), 162(2)(d), 163(2), 167(2), 234, and 267 and in Annexes I, Article 2(1) and IV, Articles 5(1) and 5(2). 55  Trail Smelter Case, United States/Canada, Award of 6 May 1941, RIAA, vol. III, p. 1965. 56  In the Gabčíkovo Nagymaros Project case, the ICJ stated that “the existence of a general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment”. ICJ, Gabčíkovo Nagymaros Project (Hungary / Slovakia), Judgment of 25 September 1997, ICJ Rep. 1997, p. 7. 57  Principle 21 provides that “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”. Declaration of the United Nations Conference on the Human Environment during its meeting in Stockholm from 5 to 16 June 1972. 58  Excerpt from Article 56(1) of UNCLOS.

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have to be taken into account.”59 The same applies regardless of whether or not an agreement has been reached with regard to establishing a joint management arrangement applicable to a shared fish stock. Indeed, it is not difficult to accept the correctness of the assertion that the duty of “due regard” in relation to a coastal State’s exercise of sovereign rights to exploit a shared fish stock is, essentially, part of the “general principles of law recognized by civilized nations.”60 This duty may to some extent be transcribed as being merely the expression of the duty to cooperate at least with regard to the obligations incumbent upon States Parties pursuant to Part V of the Convention. Thus, “due regard” can be considered incorporated in the international customary duty to cooperate, in casu in relation to the management of a resource whose location is also in other States’ maritime zones, the sustainable management of which, consistent with relevant duties under the Convention and general public international law, calls for concerted actions.61 A sustainable management arrangement applicable to a shared fish stock is one that is inclusive and incorporates all actors relevant for the management of the stock. Consistent with Article 63(1) of the Convention, this means that all States within whose jurisdiction the shared fish stock migrates shall participate on an equal footing with the view to ensure that the shared stock may be governed in a manner consistent with Article 61 of the Convention.62 There are situations in which coastal States are unable to ensure a joint management of a shared fish stock. This is symptomatic of the fact that the issues at 59  United Nations Convention of the Law of the Sea: A Commentary, vol. II, p. 646. 60  Excerpt from Article 38(1)(c) of the Statute of the International Court of Justice. 61  “In Convention Art. 56(2), ‘due regard’ means that a coastal state, in exercising its rights and performing its duties in its [EEZ], must be aware of and consider the rights exercised by and the duties of other states in that coastal state’s [EEZ]. The coastal state must balance its rights and duties against the rights and duties of those other states in its [EEZ]”. George K. Walker, “Defining Terms in the 1982 Law of the Sea Convention IV: The Last Round of Definitions Proposed by the International Law Association (American Branch) Law of the Sea Committee”, California Western International Law Journal, 2005, vol. 36, p. 175. 62  It is interesting to note the capelin management arrangement of 8 July 2003 between Iceland, Norway and Greenland in which Iceland, the party which has the greatest interest in the stock (“som den Part som har den største interesse i loddebestanden”), is attributed a prime responsibility with regard to the management of the targeted stock. Consistent with Article 2 of the arrangement, Iceland (which is attributed a fixed share of 81%, the remaining 19% being shared between Norway (8%) and Greenland (11%) respectively, is vested with a residual right to determine the TAC in situations where the parties are unable to agree on the same, although Norway and Greenland shall not be bound by such a determination where it would be apparent that the TAC is unreasonable (åpenbart urimelig).

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stake, making difficult such conclusions, relate to delicate issues the administration of which coastal States are careful not to delegate to a third organ. This is also a principal reason for which there is no comprehensive international legal instrument akin to, e.g., non-navigational uses of international watercourses, the governance of which has been guided by various codifications of international legal principles, directly applicable to the management of shared fish stocks. This gives room for different manners to asserting entitlement to a shared fish stock. 4

Entitlement to a Shared Fish Stock

An assertion to a share in the joint management regime applicable to a shared fish stock may employ unilateral and plurilateral forms both of which find support in contemporary instruments of fisheries policy in relation to the sphere of management of shared fish stocks. 4.1 Plurilateral Assertions There is a large number of examples of plurilateral assertions of entitlement to shared fish stocks, in which some of the stakeholders to a shared fish stock collectively assert entitlement inter se and to third parties by reserving, as appropriate, shares to the remaining parties to the extent the latter are not part of the arrangement. The management of the Northeast Atlantic mackerel is a recent and relevant illustration of a bilateral, and, subsequently, a trilateral arrangement on the basis of which two and subsequently three coastal States jointly assert their entitlement vis-à-vis the rights of third States with regard to this shared fish stock. It is well documented that the Northeast Atlantic mackerel has in recent years migrated in a farther northwestern direction, implying an increased presence of this stock in these new fishing grounds. The economic interests are significant and it is not always that the noble idea of paying due regard to the interests of third parties is recognized accordingly by the relevant third party stakeholders. One such example is illustrated in the bilateral agreement between the European Union and Norway on the management of the shared fish stock of Northeast Atlantic Mackerel of 26 January 2010. The ICES advised a TAC of 572,000 tonnes in 2010 for the Northeast Atlantic mackerel, of which Norway and the EU appeared to have allocated to themselves more than 100%. The agreement was due to be in force for a period of 10 years,63 during which the parties 63  Article 8 of the 2010 Agreement provided: “The Delegations agreed that the arrangements laid down in this Agreed Record should apply for a period of 10 years from 26 January 2010.

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committed themselves to maintain the relative shares as established for 2008.64 It is fair to assume that the stakeholders that were excluded from the arrangement, i.e. the Faroe Islands, Iceland, Russia, and to some extent Greenland, were susceptible to believe that by entering into the bilateral agreement, Norway and the EU were not paying “due regard” to their interests in the stock. Such contention could be based on assertions that the management of shared fish stocks requires comprehensive undertakings in which the management discussions must be based on equitable criteria. This implies that previous arrangements, entered into according to the previously prevailing circumstances, cannot be extended thenceforth for a period of ten years during which the marine biological conditions had significantly changed. Either way, the point of importance is that it is difficult to sustain that the relative share, which would, pursuant to the bilateral agreement, have been attributed to third parties, would be opposable to the relevant third country stakeholders. On 12 March 2014 the European Union, the Faroe Islands and Norway agreed to a trilateral arrangement for the management of the Northeast Atlantic Mackerel.65 It is fair to assume that the remaining stakeholders were not necessarily of the view that ‘due regard’ was paid to their interests. This appears, inter alia, in the setting of a TAC of 1.047.000 tonnes for 2014, which, upon the conclusion of the arrangement, was 18% beyond the TAC advised by ICES. Further, the above catch limit represents only 84.5% of the allowable catch these parties established, given that the remaining 15.6% of the TAC, as determined by the three signatories, were relegated to the other relevant actors. Consequently, it is clear that if the share which the three parties to the inter se management arrangement allocated to third parties is also included, the total allowable catch would be 1,240,000 tonnes, i.e. 39% beyond the TAC advised by ICES. Further, at the point of concluding the agreement, the three The Parties shall undertake a mid term review in 2015 of the functioning of the arrangements, and where appropriate, make the necessary adjustments”. 64  The bilateral agreement provided though that “[i]n the event that it is necessary to adjust the shares of other Parties to the Coastal State agreement and/or in the context where new shares have to be established for new Coastal States, the Delegations agreed to maintain their relative shares as set out in point 4.1 above”. Excerpt from paragraph 4.1 of the bilateral agreement. 65  Agreed Record on a fisheries arrangement between the Euroepan Union, the Faroe Islands and Norway on the management of mackerel in the North-East Atlantic from 2014 to 2018, London, 12 March 2014. Yet, the agreement does provide an opt-in possibility contingent upon the consent of the three parties.

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parties must have been aware that the opposing claims to individual quotas of the third actors in question—Iceland, Russia and Greenland—very likely would exceed the share which the three parties to the management arrangement sought to allocate as coastal State and fishing party reserves,66 let alone for the sole fact that the aggregate of the 2013 quotas of the three actors, Iceland, Russia and Greenland, corresponded to 261,540 tonnes, which alone represents 48.2% of the TAC advised by ICES for the 2013 fisheries. Where there are plurilateral assertions of entitlement to a shared fish stock, there is also most likely a corresponding unilateral assertion of entitlement. 4.2 Unilateral Assertions An assertion to a share in a management arrangement with regard to a shared fish stock can also be, and most often is, at least from the outset, unilateral vis-à-vis the relevant stakeholders. In some situations an assertion may remain unilateral, i.e. most often when agreements have been found among some of the stakeholders. Where only one party is excluded from the management arrangement, its assertion remains unilateral vis-à-vis the collective assertion crystallized in the relevant plurilateral assertion of entitlement. A recent example is the assertion of the rights of Russia to the Redfish stocks (Sebastes Mentella) in the Irminger Sea and adjacent waters. In March 2011 the coastal States (Faroe Islands, Greenland and Iceland) together with the NEAFC Contracting Parties, the European Union and Norway, agreed on multi-annual conservation and management measures for deep and shallow redfish in the Irminger Sea (Redfish agreement). The duration of this scheme was scheduled for a four year period from 2011 to 2014 and was due to apply throughout the NEAFC Convention Area. The Redfish agreement took note of the scientific advice from ICES on management measures for the redfish stocks as well as the advice on stock identity. The Redfish agreement set aside a share for Russia, which, although not being a coastal State to the stock in question, was considered to be vested with historical rights to the targeted resource in the NEAFC Regulatory Area, i.e., the high seas area of competence of NEAFC. Yet, Russia decided not to accede to the Redfish agreement and objected to the corresponding NEAFC recommendation adopted in 2011 for the period 66  In a public statement on 13 March 2014, the Icelandic Minister of Fisheries and Agriculture, Sigurdur Johannsson, noted that “[t]he agreement takes no account of fishing by Iceland, Greenland and Russia so it is clear that the total catch could exceed 50% of the ICES advice”. Accessible on http://eng.atvinnuvegaraduneyti.is/publications/news/nr/8094.

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2011–2014.67 In its objection in 2011, Russia asserted that it was in disagreement with the ICES advice as to the structure of the pelagic Sebastas Mentella in the Irminger Sea. Russia disagreed with the TAC advised by ICES. Furthermore, Russia stated its disagreement on the quota allocation in the agreement pointing out that the quota share given to the Russian Federation was not fair as it did not reflect the history of fisheries of pelagic redfish in the Irminger Sea. In line with its objection68 Russia has on an annual basis established a unilateral quota applicable for pelagic redfish in the Irminger Sea. This quota is based on the Russian perception of the stocks and is established pursuant to the Russian level in 2008. The quota in 2014 is 27,300 tonnes, which corresponds to 137% of the TAC recommended by ICES while the Redfish agreement recognizes Russia having a share corresponding to 20.7% of the TAC. Another example is the EU assertion of entitlement to the Atlanto-Scandian herring. In 1995 that stock recovered from quasi-depletion during the sixties and resumed its migratory clockwise pattern. The European Union was not part of the management arrangement of 5 May 1996 established by the four coastal States: Iceland, the Faroe Islands, Norway and Russia. Subsequently the EU established a unilateral quota to a level corresponding to 15% of the total allowable catch, i.e. 150,000 tonnes, although the four-party arrangement set aside only 2,000 tonnes to third parties.69 It would appear fair to assume that neither the EU on the one hand nor the four parties to the arrangement on the other hand would be of the view that the opposing party paid “due regard” to their rights. While the above-mentioned unilateral assertions are mainly high seas assertions to a shared fish stock, which also, to some extent straddles the high seas, unilateral assertions to a shared fish stock are mainly translated by 67  Recommendation on a multi-annual interim conservation and management measure for deep and shallow pelagic redfish in the Irminger Sea and adjacent waters to apply from 2011 to 2014 in the NEAFC Convention Area. Denmark in respect of the Faroe Islands and Greenland, the European Union, Iceland and Norway voted in favor of the proposal, Russia voted against. 68  See infra. 69  The quasi-entire unilateral EU quota was fished on the high seas. Churchill has noted in this regard, “[a]t the time of those negotiations [on Atlanto-Scandian herring], in late 1995 and early 1996, the EC’s justification for being included, either because it was a coastal state or a high seas fishing state, seems on the face of it to be fairly tenuous”. Robin Churchill, “Managing Straddling Fish Stocks in the North-East Atlantic: A Multiplicity of Instruments and Regime Linkages-But How Effective a Management”, Governing High Seas Fisheries: The Interplay of Global and Regional Regimes, Olav Schram Stokke (ed.), OUP, 2001, p. 247.

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fisheries in the relevant coastal States’ EEZ as the foundation for the assertion of entitlement to such a stock, by contrast to entitlement to high seas fisheries, is based on its location in the EEZ. A recent example is the disagreement on management of the Atlanto-Scandian herring in which four actors have by the conclusion of inter se arrangements on 23 January 2013 and 28 March 2014, respectively, allocated to themselves 94.84% of the TAC, relegating the remaining 5.16% to the Faroe Islands. The share which the four parties have sought to allocate to the Faroe Islands in 2013 was met with an opposing assertion from the Faroe Islands which corresponded to 17% of the TAC, implying that the aggregate exceeded the scientifically advised maximum mortality. For each specific assertion of entitlement asserted by a coastal State, there is a strong likelihood for an opposing assertion by other coastal States. These opposing assertions, and the lawfulness on which the authority is asserted, constitute the specific controversies to which authoritative decisionmakers do and must respond when seeking to agree on joint management measures applicable to shared fish stocks. The above-mentioned circumstances demonstrate to what extent assertions of entitlement to a shared fish stock may be met with opposing claims, all of which are relevant in considering the scope of coastal States’ exercise of sovereign rights. It could be tempting for the holders of the plurilateral assertion of entitlement to blame the holder of the unilateral assertion for the non-sustainable fisheries of the stock in question, assuming that the aggregate exceeds the scientifically advised maximum catch. Yet, taking the example from the disagreement on the management of the AtlantoScandian herring, all of the parties were in agreement to follow the advice of ICES; the disagreement related only to the sharing arrangements. In such a situation the four-party assertion is unilateral vis-à-vis the assertion of the Faroe Islands just as much as the assertion of the Faroe Islands is unilateral vis-à-vis the four-party assertion. As noted by ICES, when upon its advice for 2014 was looking at the 2013 management, “a lack of agreement by the coastal States on their share in the TAC has led to unilaterally set quotas which together are higher than the TAC indicated by the management plan.”70

70  Excerpt from ICES advice for 2014 fisheries of Atlanto-Scandian herring (emphasis added). In the ICES WGWIDE Report 2013, the situation is described as follows: “In 2013, a lack of agreement by the Coastal States on their share in the TAC has led to unilateral set quota’s which together are higher than the TAC indicated by the management plan”. The same applies with regard to the situation in 2005 in which all the actors previously party to the coastal State arrangement increased their quotas on a unilateral basis, thereby collectively exceeding the TAC.

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To summarize, the collective endeavors undertaken by stakeholders to a shared fish stock may prove difficult. The difficulties relate, in a large extent, to the ambiguities on the guiding criteria for determining the respective allocations. Given the premises for the coastal State negotiations it would appear imperative that the discussions on joint management regimes are conducted according to equitable criteria. 5

Objective Criteria

While the differences may be interconnected with the management of other shared resources, a relevant component of which can become mutual access to the respective EEZs. A main reason for which negotiations with regular intervals are not successful is a lack of transparency as to the criteria governing the determination of the stakeholders’ relative shares. Having in mind the residual powers of the coastal States, it is important to safeguard juxtaposition among the stakeholders’ participation in the negotiations. More importantly, though, is the determination of objective criteria that govern such negotiations. Only objective criteria can be considered equitable. In this regard other international instruments relating to the utilization of shared resources may serve as inspiration for prospectively looking into equitable criteria for governing shared fish stocks. Interrelations between the Various Instruments Relating to Shared Natural Resources While the navigational regime seeks to provide concerted administrative measures to guarantee free navigation on the river system, the non-navigational use regime deals mainly with the allocation of an equitable balance of interests to the States concerned and to safeguard against adverse effects on the environment. As appears from disputes which have been referred to as international arbitration, river systems, by their necessarily inextricable linked usage, may cause serious challenges for the riparian States in which the policies of the upstream States are, as appropriate, bound to affect in some way the interests of the downstream States.71 It is interesting to note that the United Nations International Law Commission (ILC) dealt for the first time with shared natural resources in its deliberations relating to the law of the non-navigational 5.1

71  See, e.g., the recent findings of the arbitral tribunal constituted in Waters Kishenganga Arbitration (Pakistan v. India), final award on 20 December 2013, accessible on the website of the Permanent Court of Arbitration.

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uses of international watercourses. The ILC finalized its work on the non-navigational uses of international watercourses in 1994.72 Among the intricate and complex issues were that of whether unrelated confined groundwater was to be included in the material scope of the work73 to which various views were expressed. It was finally agreed to exclude such groundwater74 but the ILC decided to submit a resolution to the General Assembly commending States to be guided by the principles contained in the draft articles on the law of the non-navigational uses of international watercourses in regulating transboundary groundwater.75 In 2000, during its fifty-second session, the ILC decided that the topic “shared natural resources” should be considered to be included in its long term programme of work,76 which the United Nations General Assembly approved.77 At its fifty-fourth session, the ILC took the decision to include the topic “shared natural resources” in its programme of work.78 The work of the ILC was 72  In 1970 by the adoption of General Assembly resolution 2669 (XXV) it was recommended that the ILC should take up the study of the law on the non-navigational uses of international watercourses with a view to its progressive development and codification. This work began in 1971. The final draft articles, incorporating only minor changes to the 1991 draft, were formulated and presented to the General Assembly in 1994 by the ILC. The General Assembly thereupon decided to set aside two years for reflection by States and to convene a Working Group of the Whole of the Sixth Committee in 1996 to elaborate a framework convention on the law of the non-navigational uses of international watercourses on the basis of the draft articles formulated by the Commission. The Working Group of the Whole of the Sixth Committee was convened in 1996 and 1997 and succeeded in the elaboration of the Convention on 4 April 1997. Upon the recommendation of the Working Group, the General Assembly adopted the Convention on the Law of the Non-Navigational Uses of International Watercourses on 21 May 1997 by a vote of 104 to 3, with 26 abstentions. 73  See First report of Special Rapporteur Robert Rosenstock, who succeeded Stephen C. McCaffrey, ILC Yearbook 1993, vol. II (Part One), Doc. A/CN.4/451. 74  Pursuant to Article 2(a) of the text which was adopted by the General Assembly, which was adopted without substantial change to the draft of the ILC, a watercourse “means a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus”. 75  Off. Rec of the General Assembly, Forty-ninth Session, Supp No. 10 (A/49/10), chap. III.D. 76  Off. Rec. of General Assembly, fifty-fifth Session, Supp No. 10 (A/55/10), paras 726–729. 77  UNGA Resolution 55/152 of 12 December 2000 (para. 8) took note of the ILC’s report concerning its long-term programme of work and by the adoption of UNGA Resolution 56/86 of 12 December 2001 (para. 8). 78  Off. Rec. of the General Assembly, Fifty-seventh Session, Supp No. 10 (A/57/10), paras 20, 518 and 519. The General Assembly took note of this decision as reflected in resolution 57/21 of 19 November 2002.

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confined from the outset to transboundary groundwaters79 and was finalized by the ILC adopting on second reading the draft articles on the law of transboundary aquifers.80 Already in its first report, the Special Rapporteur emphasized that whilst many of the principles embodied in the Convention on the Law of the Non-Navigational Uses of International Watercourses were relevant with regard to transboundary groundwater deposits, there were also some differences of importance which call for separate attention and adaptation.81 Although there may be differences, the legal principles applicable to nonnavigational uses of international watercourses and transboundary ground­ water deposits are necessarily intertwined with the legal principles underlying the management of shared fish stocks.

79  The Special Rapporteur had prepared a discussion paper for consideration in informal consultations (ILC (LIV)/IC/SNR/WP.1) in which he described the background relating to this topic being included in the work programme of ILC and indicating his intention to deal with confined transboundary groundwaters, oil and natural gas. Whilst recognizing that many other resources straddle different jurisdictions, the Special Rapporteur expressed the view that it was not appropriate to deal with other shared resources under this topic. He also suggested a step-by-step approach, commencing with groundwaters. The ILC took note of the proposal of Mr. Candioti (Chairman of the working group established to support the Special Rapporteur) in which it was recommended that the ILC should not consider the transboundary aspects of the topic “Shared natural resources”. Summary record of the 3069th meeting of the ILC, 13 August 2010, A/CN.4/SR.3069. 80  By the adoption of UNGA resolution 63/124 of 11 December 2008 the General Assembly took note of the draft articles on the law of transboundary aquifers, presented by the ILC, the text of which was annexed to the resolution, and commended them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action. By the adoption of UNGA resolution 68/118 of 16 December 2013, the General Assembly decided to include in the provisional agenda of its seventy-first session the item entitled “The law of transboundary aquifers”. 81  “It is obvious that almost all the principles embodied in the Convention on the Law of the Non-navigational Uses of International Watercourses are also applicable to confined transboundary groundwaters. However, there exist distinct differences between these two water bodies. To cite an example, while surface water resources are renewable, groundwater resources are not. This means that when groundwater is extracted, it will be quickly depleted, as recharge will take years. When groundwater is contaminated, it will remain so for many years. In the case of surface water, the activities to be regulated are those involving the uses of such resources. In the case of groundwater, we may also have to regulate activities other than the uses of the resources that might adversely affect the condition and quality of groundwater. Additional principles need to be considered to address these unique problems.” Off. Rec. of the General Assembly, Fifty-fifth Session, Supp. No. 10 (A/CN.4/533), para. 20.

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In 1975, following the request of the UNGA,82 a Working Group of Experts on Natural Resources Shared by Two or More States was established by the United Nations Environment Programme (UNEP). There were five sessions83 with the participation of developing and developed countries all of which finalized the work during the final session from 23 January–7 February 1978.84 The report was transmitted for the consideration of the UNEP Governing Council at its sixth session, the latter of which approved the report at its 12th plenary meeting and authorized thereby the Executive Director to transmit it to the consideration of the UN General Assembly.85 On 18 December 1979, the General Assembly adopted without a vote UNGA resolution 34/186 entitled Co-operation in the Field of the Environment Concerning Natural Resources Shared by Two or More States by which it took note of the report and the “draft principles as guidelines and recommendations in the conservation and harmonious utilization of natural resources” prior to also “[r]equest[ing] all States to use the principles as guidelines and recommendations.”86 The draft principles underline, inter alia, the importance of co-operation on the management of shared fish stocks “which is to take place on an equal footing”87 82  By the adoption of UNGA resolution 3129 (XXVIII) Co-operation in the field of the environment concerning natural resources shared by two or more States of 13 December 1973, the UNGA “[c]onsiders that it is necessary to ensure effective co-operation between countries through the establishment of adequate international standards for the conservation and harmonious exploitation of natural resources common to two or more States” and [r]equests the Governing Council of the [UNEP], in keeping with its function of promoting international co-operation according to the mandate conferred upon it by the General Assembly, to take duly into account the preceeding paragraphs and to report on measures adopted for their implementation”. Excerpts from operative paragraphs 1 and 3, respectively, of UNGA resolution 3129 (XXVIII). 83  The Intergovernmental Working Group held its first meeting in Nairobi, 12–22 January 1976. Report of 3rd session (UNEP/IG.7/3), 4th session (UNEP/IG.10/2 and 5th session (UNEP/GC.6/17). 84  Twenty six States participated at the final session: Argentina, Bangladesh, Brazil, Canada, France, Germany, Ghana, Greece, India, Iran, Iraq, Jamaica, Kenya, Mexico, Netherlands, Philippines, Poland, Romania, Senegal, Sweden, Switzerland, Uganda, USSR, United Kingdom, United States of America, and Yugoslavia. 85  Decision 6/14, Co-operation in the field of the environment concerning natural resources shared by two or more States, of 19 May 1978. Off. Rec. of the UNGA, Third-third Session, Supp. No. 25 (A/33/25), chap. VIII. 86  Excerpt from operative paragraphs 2 and 3, respectively, of UNGA resolution 34/186 of 18 December 1979. 87  Excerpt from Principle 1 in the text of which the UNGA took note in resolution 34/186 of 18 December 1979.

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and where circumstances require, to “engage in joint scientific studies and assessments with a view to facilitating the finding of appropriate and satisfactory solutions.”88 Yet, of particular note is that while the ILC undertook its work in relation to confined transboundary groundwaters on the understanding that there were significant differences if comparison were made with the regime applicable for the non-navigational uses of international watercourses, it did nevertheless examine the draft principles from 1979. This conscious decision manifests again that there are common denominators, which, in principle, apply to the management of all shared resources, one of which is shared fish stocks. 5.2 Equity a Direct Emanation of the Idea of Justice To reach agreement on the joint management of a shared fish stock, the coastal States involved are to manifest diligence in the framing of a reasonable allocation. At the outset an allocation should be seen as akin to its entitlement to a share of the common pool of the resource. It can be difficult to determine reasonableness when there is no positive list of rules applicable for determining which factors are critical for the establishment of the various allocation keys and thereby forming the claims, and, as appropriate, any opposing claims to an inter-se arrangement. Yet, the fact is that coastal States are vested with sovereign rights and discretionary powers to determine allowable catches within their maritime areas under national jurisdiction. From this it follows that coastal States’ participation in the relevant negotiations is juxtaposed to that of others. Thus, the guiding factor is the determination of objective criteria. Only objectiveness can ensure that the criteria are equitable, thereby ensuring some guiding criteria for long-lasting arrangements. Nothing in Article 63(1–2) of the 1982 Convention suggests that any coastal State can legally be seen with an entitlement, to use an expression relevant for anadromous stocks, akin to a “State of origin” which is recognized a “primary interest”89 in the management of a shared fish stock within the meaning of Article 63(1) of the Convention, or, to use an expression relevant for catadromous stocks, with “responsibility for the management” of such stocks. In practice, states who are major stakeholders to the stock, i.e. through whose maritime areas under national jurisdiction significant parts of the stock is located, are by implication vested with an important mandate as to the management of that stock. The mandate is not legal but is reflected in the autonomy with which such coastal States are vested. In the absence of an agreement, these coastal 88  Ibid., excerpt from Principle 8. 89  Excerpt from Article 66 of UNCLOS.

Assertion of Entitlement to Shared Fish Stocks

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States may harvest the stock in their EEZ, whilst the minor stakeholders, i.e. such coastal States with sparse appearance of the stock in their maritime areas under national jurisdiction could, as past examples demonstrate, be seen as dependent upon access to the maritime zones of the other coastal States. One example of this would be the 2006 bilateral arrangement between Norway and the EU on the Atlanto-Scandian herring.90 Of course, the shared stock might also straddle the high seas area in which case, to the extent the harvesting occurs in such zone, other rules apply in addition to Part V of the Convention. Equity as such is a direct emanation of the idea of justice.91 By way of analogy92 it may be referred to the findings of the ICJ, as reiterated by arbitral tribunals, and more recently the International Tribunal for the Law of the Sea, wherein equity was an integral part of the applicable law. The definition of equity was, in a now famous finding, considered as follows: “it is evident that only those that are pertinent to the institution of the continental shelf as it has developed within the law, and to the application of equitable principles to its delimitation, will qualify for inclusion. Otherwise, the legal concept [. . .] could itself be fundamentally changed by the introduction of considerations strange to its nature.”93 By the same token only those elements that are pertinent to the institution of the fisheries jurisdiction should be given essential weight in deciding allocation criteria, failing which the legal concepts 90  There was no joint management arrangement on the Atlanto-Scandian herring during the period 2003–2006. Subsequent to the increase of 14% of the quota by Norway in 2005, inter alios, the European Union announced an increase of its quota likewise by 14%. As a consequence of the lack of agreement, Norway refused access for fisheries of the Atlanto-Scandian herring to its EEZ of, inter alia, any vessels flying the flag of an EU Member State. Shortly thereafter, the EU agreed to withdraw its increase in exchange of access to fish the targeted stock in the Norwegian EEZ. 91  As former President of the ICJ has noted: “It is important to bear in mind that the relationship between law and equity is not one between legal system and a phenomenon exterior to it; equity is built into the legal system. In order to remove every possible misunderstanding and confusion on the issue it is important to emphasize that equity cannot be detached from the law; it is inherent in it”. Manfred Lachs, “Equity in Arbitration and in Judicial Settlement of Disputes”, LJIL, 1993, vol. 6(2), p. 325. 92  In 1963 Charles de Visscher observed that “analogie est un procédé de raisonnement qui permet à l’interprète d’étendre une norme qui régit certains rapports à des rapports nouveaux juridiquement semblables à ceux que visait son contenu originaire”. Charles de Visscher, Problèmes d’Interprétation Judiciaire en Droit International Public, Pédone, Paris, 1963, p. 38. 93  ICJ, Continental Shelf (Libyan Arab Jarnahiriya/Malta), Judgment, ICJ Rep. 1985, p. 40, para. 48.

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enshrined from the Convention applicable for the management and conservation of shared fish stocks could be fundamentally changed. It is obvious that the coastal States have an entitlement to obtain benefits from the living natural resources that are located in the maritime jurisdiction of the relevant coastal States. By the same token, the principle of zonal attachment has been given a central role in the establishment of joint management arrangements applicable for shared fish stocks.94 To illustrate this, reference may be made to the evolution of the migratory pattern of the Northeast Atlantic mackerel which to some extent has shifted in a northeastern direction. The consequence of this shift for the Faroe Islands is a significant maturity in the process of this stock while in the Faroese fisheries jurisdiction. It is documented that on average there is an increase of weight up to 30% during its stay in the maritime areas under the jurisdiction of the Faroe Islands. Such resources would be available for other fish stocks were the stock spending a shorter period in the maritime jurisdiction of the Faroe Islands or, as relevant, during another period of the year. The Faroe Islands have advocated that this relative increase of zonal attachment in its fisheries zone must be translated into an increase of its share to the management arrangement applicable for the mackerel, failing which it could not be seen as equitable. It is interesting to note that various instruments in relation to shared natural resources refer to the equitable use of the resources. This factor is reflected already in the Helsinki Rules on the Uses of the Waters of International Rivers of 196395 in which a chapter is entitled “Equitable Utilization of the Waters of an International Drainage Basin.”96 Other examples include the Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by

94  See Posner and Sykes who argue “that the most important guiding principle in UNCLOS [with regard to the avoidance and resolution of competing claims to common pool issues] is the proximity of the resource to the claimant”. Eric Posner, Alan Sykes, “Economic Foundations of the Law of the Sea”, AJIL, 2010, vol. 104(4), p. 576. 95  The Helsinki Rules on the Uses of the Waters of International Rivers, adopted by the International Law Association at the fifty-second conference, held at Helsinki in August 1966. Report of the Committee on the Uses of the Waters of International Rivers (London, International Law Association, 1967). 96  Article IV reads as follows: “Each basin State is entitled, within its territory, to a reasonable and equitable share in the beneficial uses of the waters of an international drainage basin”.

Assertion of Entitlement to Shared Fish Stocks

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Two or More States,97 the Convention,98 the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses99 and the ILC Draft articles on the Law of Transboundary Aquifers.100 Equity as a direct emanation of the idea of justice has been described by the ICJ as a process which requires “to balance up the various considerations which it regards as relevant in order to produce an equitable result.”101 While international law does not provide a positive list of rules applicable for allocation of a shared fish stock, there are various instruments in international law, some of which are binding while others are not adopted in the forms of treaties, which can serve as appropriate benchmark references. The specificity of fisheries, however, including the biological framework, requires adaptations. Some of these instruments include, inter alia, the recurrent reference

97  Principle 1 reads as follows: “It is necessary for States to co-operate in the field of the environment concerning the conservation and harmonious utilization of natural resources shared by two or more States. Accordingly, it is necessary that, consistent with the concept of equitable utilization of shared natural resources, States co-operate with a view to controlling, preventing, reducing or eliminating adverse environmental effects which may result from the utilization of such resources. Such co-operation is to take place on an equal footing and taking into account the sovereignty, rights and interests of the States concerned”. 98  Preambular paragraph 4 reads as follows: “Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment”. 99  Article 5 reads as follows: “1. Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse. 2. Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention”. 100  Article 4 reads as follows: “Aquifer States shall utilize transboundary aquifers or aquifer systems according to the principle of equitable and reasonable utilization, as follows”. 101  ICJ, Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Rep 1982, p. 60, para. 71.

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to the economic and social needs of each basin State,102 the people’s dependency on the resource,103 the availability of alternatives resources,104 and the extent of the resources located in the territory of the other States involved.105 The latter can be seen to reflect, by way of analogy, the migratory distribution of shared fish stocks, an element whose relevance for fisheries management is long-standing and was duly observed in 1955 during the International Technical Conference in Rome.106 Further, it is common that where there are transboundary deposits of oil and gas, the States concerned enter into arrangements, most often understood as unitization agreements, in order to avoid obvious disputes were the extraction of the transboundary deposit to be pursued in a non-coordinated manner between the States involved.107 Whilst the form of a management arrangement with regard to a shared fish stock will most often be in different form than a unitization agreement, the circumstances calling for such arrangements are similar. The major difference is that by contrast to oil and gas reserves, which have a relatively static location, shared fish stocks are not only mobile but also their migratory patterns, from time to time, change. Such recurrence calls for adaptations to the relevant management arrangements. To summarize, the element which enshrines the entire consideration of the dichotomy between the exercise of sovereign rights over natural resources and 102  Article 5(1)(b) of the ILC Draft articles on the Law of Transboundary Aquifers; Article 5(II)(v) of the Helsinki Rules on the Uses of the Waters of International Rivers; and Article 6(1)(b) of the 1997 United Nations Convention on the Law of the NonNavigational Uses of International Watercourses. 103  Article V(II)(6)) of the Helsinki Rules on the Uses of the Waters of International Rivers.; Article 6(1)(c) of the 1997 United Nations Convention on the Law of the NonNavigational Uses of International Watercourses; and Article 5(1)(a) of the ILC Draft articles on the Law of Transboundary Aquifers. 104  Article 6(1)(g) of the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses; Article 5(1)(g) of the ILC Draft articles on the Law of Transboundary Aquifers. 105  Article V(5)(1) of the Helsinki Rules on the Uses of the Waters of International; Article V(II)(8) of the Helsinki Rules on the Uses of the Waters of International Rivers. 106  The Rome Technical Report provided in this regard “[t]he present system of international fishery regulation [. . .] is generally based on the geographical distribution of the marine population with which individual agreements are concerned. From the scientific and technical point of view this seems, in general, to be the best way to handle these problems”. Rome Technical Report, para. 75 (emphasis added). 107  On unitization agreements, see William T. Onorato, “Apportionment of an International Common Petroleum Deposit”, ICLQ, 1977, vol. 26, pp. 324–337; J.C. Woodliffe, “International Unitisation of an Offshore Gas Field”, ICLQ, 1977, vol. 26, pp. 338–353.

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the reasonableness in asserting entitlement to a share of the common pool is that of basing the claim on objective criteria. Propinquity and the duration of the migration to the various jurisdictions are by definition objective and are accordingly by their very nature susceptible to an equitable function in determining allocation criteria applicable for shared fish stocks.108 6

The Multilateral Framework in the North-East Atlantic

The Convention on future multilateral cooperation in the North-East Atlantic Fisheries109 established the North-East Atlantic Fisheries Commission (NEAFC), which is an RFMO to which there are five Contracting Parties.110 The objective of NEAFC is to ensure the long-term conservation and optimum utilisation of the fishery resources in the Convention Area, providing sustainable economic, environmental and social benefits.111 The territorial scope of its mandate may vary. Some measures may only apply to the high seas area. This area is referred to as the “Regulatory Area” where the applicable management measures are adopted by a qualified majority.112 NEAFC can also adopt management measures whose scope of application are not limited to the Regulatory Area, but include also areas of a Contracting Parties’ jurisdiction.113 This area is for the purpose of NEAFC entitled “Convention Area” but whose adoption requires the affirmative vote of the 108  It should be noted that upon the agreement of an arbitral system at the 1958 Geneva Conference, several delegates insisted that the arbitral commission called upon to deal with the legal validity of disputed conservation measures should be chiefly guided by specific biological criteria because fair dealing between the parties could only be expected through an objective understanding of the resource in question, Geneva Conference Records (1958), 1, p. 89, pp. 96–98. 109  Signed in London on 18 November 1980 and entered into force on 17 March 1982 (NEAFC Convention). 110  These are the Kingdom of Denmark in respect of the Faroe Islands and Greenland, the European Union, Iceland, Norway and the Russian Federation. 111  See Article 2 of the NEAFC Convention, as amended. 112  Article 5(1) of the NEAFC Convention reads: “The Commission shall, as appropriate, make recommendations concerning fisheries conducted beyond the areas under jurisdiction of Contracting Parties. Such recommendations shall be adopted by a qualified majority”. 113  Article 6(1) of the NEAFC Convention reads: “The Commission may make recommendations concerning fisheries conducted within an area under jurisdiction of a Contracting Party, provided that the Contracting Party in question so requests and the recommendation receives its affirmative vote”.

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relevant Contracting Parties in order for a NEAFC management measure to be applicable in “an area under the jurisdiction of a Contracting Party.”114 Despite a NEAFC recommendation being adopted by a qualified majority, Contracting Parties can object to the opposability of a NEAFC management measure by making use of the right to object.115 A recommendation is not binding on a Contracting Party that has objected thereto,116 but is, subject to Article 12(2)(c) of the NEAFC Convention,117 binding vis-à-vis the Contracting Parties that have not made use of the right to object. The objection can concern fisheries management that are conducted beyond118 and within areas under the jurisdiction of the Contracting Parties.119

114  Excerpt from Article 8(2) of the NEAFC Convention. 115  Article 12(2)(a) of the NEAFC Convention reads: “Any Contracting Party may, within 50 days of the date of notification of a recommendation adopted under paragraph 1 of Article 5, under paragraph 1 of Article 8 or under paragraph 1 of Article 9, object thereto”. Contracting Parties can also object to recommendations concerning measures of control and recommendations relevant to the collection of statistical information relating to fisheries that are conducted beyond and within areas under the jurisdiction of the contracting parties. A recent example of an objection on control measures based on Article 8 (1) of the NEAFC Convention is the EU’s objection from December 2013 to Recommendation 15: 2014 concerning daily catch reporting, adopted at the annual meeting in 2013. Recommendation to amend Article 12(b)—Communication of catches of the NEAFC Scheme of Control and Enforcement from weekly to daily reporting. The objection by the EU was notified to the contracting parties in HOD 13/134. 116  Article 12(2)(b) of the NEAFC Convention reads: “A recommendation shall not become binding on a Contracting Party which has objected thereto”. 117  Article 12(2)(c) of the NEAFC Convention reads: “If three or more Contracting Parties have objected to a recommendation it shall not become binding on any Contracting Party”. 118  There are several recent examples of objections to management measures based on Article 5 of the NEAFC Convention. These include Norway’s objection to a NEAFC recommendation on the management of Sebastes Mentella in the Regulatory Area (ICES sub-areas I and II) in 2014 (the Norwegian objection was notified to the Contracting Parties in HOD 13/133); the EU’s objection to a NEAFC recommendation adopted at the annual meeting in November 2009 banning discards in the NEAFC Regulatory Area (Recommendation XVI: 2010: Recommendation regarding a ban on discards in the NEAFC regulatory area. The recommendation received the affirmative vote from Denmark in respect of Faroe Islands and Greenland, Iceland, Norway and Russia and remains in force). More recently the EU lodged an objection regarding a recommendation on the conservation and management of Roundnose Grenadier in the NEAFC Regulatory Area for 2014 (Recommendation 4: 2014). 119  See Article 12(3) of the NEAFC Convention.

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Most often, Contracting Parties make use of the right to object to a NEAFC recommendation where there is disagreement on the management of the targeted stock. This occurs recurrently where the assertion to an autonomous share of the management measure is based on unilateral assertion(s), which cannot block the adoption of the formation of a qualified majority, the latter representing the plurilateral assertion of entitlement to the targeted stock. By contrast, where there is no plurilateral assertion which may support a qualified majority of votes, the Contracting Parties may agree to confine the material content of the recommendations to the lowest common denominator. A recent example is the NEAFC Recommendations on the management of mackerel during the period 2011–2013.120 Due to a continuous disagreement on a joint management arrangement applicable for this stock, the Contracting Parties to NEAFC have mutually agreed to limit their unilateral assertions of entitlement to apply also in the NEAFC Regulatory Area. By doing so, the Contracting Parties have been able to counter any assertion that the Regulatory Area of NEAFC has no management measure that regulates the mackerel fisheries. Thereby, the NEAFC can prevent the entering into the Regulatory Area of vessels flying the flag of third countries pursuant to a possible contention that fisheries activities with regard to the targeted species would not be illegal, unreported or unregulated fisheries due to the lack of any NEAFC recommendation applicable for the stock in question. It is fair to argue that NEAFC does not provide comprehensive procedures applicable to bolster agreements on the management of shared fish stocks. As a matter of fact, given that the residual territorial scope of competence is limited to the high seas areas, except explicit consent by each relevant Contracting Party to the contrary, the entire negotiations on the management of shared fish stocks is beyond the realm of NEAFC. Indeed, the adoption of NEAFC recommendations with regard to shared fish stocks follows a two-step approach. First the coastal States seek jointly to bolster agreement on a joint management arrangement. These endeavours incur beyond cooperation in NEAFC. Second, it is only upon agreement on the management, or agreement to disagree, that the management arrangement is presented as a proposal for a NEAFC Recommendation. The quorum for adopting the management measure will be reached where only one Contracting Party is in opposition to the conclusion of a previously agreed management arrangement applicable to the shared stock. One example is the NEAFC Recommendations applicable for the AtlantoScandian herring in 2013 and 2014, the adoption of which has been supported 120  Recommendation pv (postal vote) 2: 2011; Recommendation 11: 2012 and Recommendation 2: 2013.

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by Iceland, Norway, Russia and the EU. This means that the relevant 2014 NEAFC Recommendation, adopted on 29 April 2014, is based on an inter se arrangement, concluded on 27 March 2014. In essence, the Recommendation is confined to transpose the inter se coastal State arrangement to the NEAFC Regulatory Area, therein the plurilateral assertion to the relative shares established in the inter se arrangement. Thus, this management measure becomes binding throughout the NEAFC Convention Area, i.e., EEZs and the Regulatory Area, except for the Kingdom of Denmark in respect of the Faroe Islands and Greenland, which made use of its right of objection.121 It is fair to assert that the objection procedure in NEAFC does not provide appropriate solutions to deadlocked situations on the management of shared fish stocks. Other RFMOs have more comprehensive objection procedures, one of which is the newly established South Pacific Regional Fisheries Management Organisation.122 Further, there is no comprehensive dispute settlement mechanism within the NEAFC, which may be triggered where, because of disagreements on the management of the relevant stocks, the aggregate of the autonomous quotas goes beyond what is scientifically advisable. A proposal to amend the NEAFC Convention so as to establish a dispute settlement mechan­ ism applicable for resolving disputes arising under the NEAFC Convention was adopted during the annual meeting in 2004.123 However, despite four Contracting Parties having deposited the ratification instruments approving this amendment, thereby gathering the required majority of three-fourths to enter into force, the Contracting Party Russia made use of its right to object thereto, thereby preventing the entry into force of the said provision.124 In any event, assuming that the amendment would enter into force, its function 121  In 2013 Denmark in respect of the Faroe Islands and Greenland objected to the NEAFC Recommendation on conservation and management measures for Atlanto-Scandian herring in the NEAFC Convention Area for 2013 (Recommendation 3: 2012); an objection which on 8 May 2014 was reiterated by the same contracting party vis-à-vis the 2014 NEAFC Recommendation targeting the same fish stock. 122  See Article 17(2) of the Convention establishing the SPRFMO. Accessible on www .sprfmo.int. 123  Article 18 bis of the NEAFC Convention reads: “The Commission shall make recommendations establishing procedures for the settlement of disputes arising under this Convention”. 124  Article 19(3) of the NEAFC Convention reads: “An amendment shall take effect for the Contracting Parties 120 days following the date of the notification by the Depositary of receipt of written notification of approval by three-fourths of all Contracting Parties, unless any other Contracting Party notifies the Depositary, within 90 days of the date of the notification by the Depositary of such receipt, that it objects to the amendment, in which case the amendment shall not take effect for any Contracting Party”.

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would remain inoperative vis-à-vis disagreements on shared fish stocks, at least with regard to Contracting Parties’ entitlement to manage and conserve these stocks in their respective EEZs, except if otherwise accepted by the relevant Contracting Parties. However, it does not follow from this situation that there are no available settlement mechanisms to resolve disputes that relate to the management of shared fish stocks in the North-East Atlantic. 6.1 The Mini-Package Deal The substantive parts of the Convention were the result of delicate compromises all of which were painstakingly negotiated in one single document, marking a major difference in comparison to the result of the Geneva Conference in 1958, which resulted in four conventional instruments and one optional protocol relating to the dispute settlement mechanism. Indeed, the compromises under the guise of a consensus rule125 were the very cornerstone during the Third Conference during which appeared the notion of a package deal,126 the logical extension of which was the understanding that no reservations would be permitted to the final result, which became the Convention,127 except those that are explicitly enumerated.128

125  On the role of consensus procedure during the Third Conference see Barry Buzan, “Negotiating by Consensus: Developments in Technique at the United Nations Conference on the Law of the Sea”, AJIL, 1981, vol. 75, pp. 324–347; Daniel Vignes, “Will the Third Conference on the Law of the Sea Work According to Consensus Rule?”, AJIL, 1975, vol. 69, pp. 119–138. 126  See statement of the Kingdom of Denmark during the final session: “The result embodied in the 320 articles and related annexes and resolutions reflects a willingness to co-operate and to accept compromise solutions, expressed in two basic concepts: the consensus principle and the ‘package deal’ principle”. Verbatim Records of the 191st plen. mtg (1982) 17 Third United Nations Conference on the Law of the Sea, Official Records, p. 111. See also the statement of Vietnam: “my delegation willingly subscribes to the global compromise and the method for the overall settlement of all law-of-the-sea problems, which make the [UNCLOS] an indivisible package excluding any selective application”. Verbatim Records, 191st plen. mtg (1982) id., p. 103; The Deputy Foreign Minister Gouzhenko of the Soviet Union noted: “The new Convention represents a complex and indivisible package of closely interrelated compromise solutions to all major problems of the law of the sea [. . .] As is well known, the new comprehensive Convention has been elaborated as a single and indivisible instrument, as a package of closely interrelated compromise decisions”. Verbatim Records, 191st plen. mtg (1982) id., pp. 106–107. 127  Article 309 of UNCLOS reads as follows: “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention”. (http://www.un.org/depts/los/convention_agreements/texts/koh_english.pdf), p. xxxvi. 128  See Article 298(1)(a–c) of UNCLOS.

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The package deal leitmotif of the Third Conference was only intact because significant concessions were made by most delegations.129 The consensus rule was a premeditated and conscious decision as appeared in the manner in which the President of the Third Conference described this procedural rule: “[T]he very nature of the concept of a package deal must mean that no delegation’s position on a particular issue would be treated as irrevocable until at least all the elements of the “package” as contemplated had formed the subject of agreement. Every delegation, therefore, had the right to reserve its position on any particular issue until it had received satisfaction on other issues which it considered to be of vital importance to it.”130 Consistent with section 2 of Part XV of the Convention, any dispute concerning the interpretation or application of the Convention shall, consistent with Article 286 of the Convention,131 where no settlement has been reached by recourse to section 1 of Part XV, be submitted at the request of any party to the compulsory dispute settlement mechanism foreseen in section 2 of 129  As Mr. Adderley, speaking for the Bahamas, noted: “The objective of the Conference was a ‘package deal’. It was in this that serious-minded delegations accepted that it would be impossible to satisfy each other’s individual concerns. In this spirit, compromise agreements have been reached”. Verbatim Records, 191st plen. mtg (1982) Off. Rec., p. 104. 130   Explanatory Memorandum by the President of the Third Conference, UN Doc. A/CONF.62/WP.10/Rev.1 (1979). See also a statement of the United States representative during the ninth session, “[s]ince the Convention is an overall ‘package deal’ reflecting different priorities of different States, to permit reservations would inevitably permit one State to eliminate the ‘quid’ of another State’s ‘quo’. Thus, there was general agreement in the Conference that in principle reservations could not be permitted”, Reports of the United States Delegation to the Third United Nations Conference on the Law of the Sea, M. Nordquist, C. Park (eds.), Law of the Sea Institute, Honolulu, Hawaii, 1983, p. 449. The United States representative, Ambassador John. R. Stevenson made the following statement in 1974: “We are prepared to accept, and indeed we would welcome, general agreement on a 12-mile outer limit for the territorial sea and a 200-mile outer limit for the economic zone, provided it is part of an acceptable comprehensive package including a satisfactory regime within and beyond the economic zone and provision for unimpeded transit of straits used for international navigation” and added on the conference’s general view with regard to the emerging consensus regarding the various elements of the package deal “is conditional on a satisfactory overall treaty package”. Speech by US Representative John R. Stevenson to the Second Session of UNCLOS III, 11 July 1974, in 71 Dep’t St. Bull. 232, 233 (1974) (emphasis added). 131  Article 286 of UNCLOS reads as follows: “Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section”.

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Part XV. Yet, efforts to overcome the diverging views on compulsory dispute settlement with regard to the exercise of rights and jurisdiction of some prerogatives of the coastal State in their EEZ proved futile. The various positions were dead-locked, motivating the President of the Third Conference to make “an attempt to compromise the extreme and conflicting views regarding the question of including or excluding certain disputes relating to the [EEZ] from binding dispute settlement procedures.”132 This was the starting point for the compromises which finally resulted in the intricate interplays between all three sections of Part XV. In accordance with Article 297(3)(a) of the Convention, [d]isputes concerning the interpretation or application of the provisions of [the Convention] with regard to fisheries shall be settled in accordance with section 2, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the [EEZ] or their exercise, including its discretionary powers for determining the allowable catch.”133 It follows from the above that there are some limitations to the application of section 2 of Part XV of the Convention with regard to fisheries. But the exceptions are carefully confined and cannot be construed as to mean that all coastal States fisheries policies’ measures fall within these exceptions. The above is also generally reflected in the Virginia Commentary to the Convention: Disputes relating to fisheries were divided into three categories: those that would remain subject to adjudication (namely all those that do not fall into the other two categories), those that would be completely excluded from adjudication (and, like all other disputes, would remain only subject to section 1 of Part XV), and those that would be subject to compulsory resort to conciliation. To the second group belong primarily disputes relating to the exercise by a coastal State of those powers with respect to which the substantive provisions of the Convention granted such State complete discretion. The third group includes disputes involving clear cases of abuse of discretion, where a State manifestly or arbitrarily has failed to comply with some basic obligations under the Convention. In a case relating to such an abuse of discretion the conciliation commission shall, in accordance with Annex V, section 2, examine the claims and objections of the parties and make recommendations.134 132  A/CONF.62/WP.9/Add.1 (1975, paras 31–34, V Off. Rec. 122 (President). 133  Excerpt from Article 297(3)(a) of UNCLOS. 134  United Nations Convention on the Law of the Sea: A Commentary, vol. II, p. 105.

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It is pursuant to this understanding that the Faroe Islands took action under section 2 of Part XV of the Convention in relation to its dispute with the European Union, claiming that use of imminent threats to enforce coercive market measures as means to impose an allocation key on a coastal State to the Atlanto-Scandian herring was in breach of the obligations of the European Union under Article 63(1) of the Convention. The claim was construed on the understanding that such methods were in violation of the general principle of law consistent with which coastal States endeavoring to reach an agreement on a joint management arrangement applicable to a shared fish stock should enjoy full freedom of consent. The actions of the European Union were seen as seeking to obstruct and subordinate its exercise, that is the sovereign rights of the Faroe Islands to participate at an equal level with the other coastal States, while refusing to share the fish stock according to equitable criteria. For obvious reasons, the Faroe Islands were of the view that there are disputes relating to fisheries within maritime areas under national jurisdiction which remain subject to compulsory dispute settlement procedures, whilst others are explicitly excluded.135 Two observations are important to be marked with regard to the above. First, notwithstanding the fact that some disputes are not subject to the compulsory dispute settlement mechanism, the parties to such a dispute remain subject to the obligations under section 1 of Part XV. Thus, where a State Party to the Convention asserts that a third State Party has breached its obligations under the Convention, but the alleged infringement is immune for judicial review under section 2 of Part XV, the alleging State, and the alleged,136 are obligated to fulfil the relevant duties under section 1 of Part XV. Second, the bolstering of the agreement consistent with which coastal States’ sovereign rights with regard to the living resources in the EEZ, or their exercise, including the discretionary powers for determining the allowable catch, was excepted, the compulsory dispute settlement mechanism was made contingent upon agreement on a compulsory conciliation procedure. Thus conciliation is required in situations where it is alleged that “a coastal State has manifestly failed to comply 135  As noted by professor Lehoux, Article 297(3)(b-c) “prévoient de façon générale que le système de règlement obligatoire des différends s’applique, mais ils en limitent considérablement l’application”. Grégoire Lehoux, “La Troisième Conférence sur le droit de la mer et le règlement obligatoire des différends”, Annuaire canadien de Droit international, 1980, vol. 18, p. 70. 136  Article 283(1) of the Convention provides: “When a dispute arises between States Parties concerning the interpretation or application of the Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means”.

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with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the [EEZ] is not seriously endangered.”137 It follows accordingly that although being excluded from section 2 of Part XV, disputes falling within the realm of Article 297(3)(b)(i–iii) of the Convention, may on a unilateral basis be referred to compulsory conciliation, where no agreement may be reached pursuant to any of the means under section 1 of Part XV. The question that may be raised is whether parties to a dispute that is within the scope of Article 297(3)(b)(i–iii) of the Convention have an obligation to refer the dispute to such a conciliation commission, to the extent that recourse to self-help, in the form of counter-measures, should be excluded. In this regard it is interesting to note that various observations have been made consistent with which parties to such disputes are effectively obligated to refer the matter to compulsory conciliation. Grégoire Lehoux argues that despite most coastal States’ sovereign rights relating to, inter alia, the management of living resources being excluded from section 2 of Part XV, the Third Conference managed to make “obligatoire le recours à la procedure de conciliation, lorsque le système de règlement obligatoire ne s’applique pas.”138 Further, Adede notes likewise that “[c]onciliation—and to be more precise, the obligatory resort to it—is now the accepted third-party forum for the settlement of a substantial category of disputes which are likely to arise in the course of the exercise of coastal States rights within the [EEZ].”139 Indeed, the solution retained a compulsory resort to conciliation, for the settlement of such disputes was the absolute minimum which could be accepted by a large number of participants to the Third Conference. In the view of Chairman Stavropoulos, the solution retained was a mini-package in the nature of a conditional consensus,140 in which a state that is party to a dispute that falls within the ambit of Article 297(3)(b)(i–iii) of UNCLOS, is “obliged to submit to a compulsory conciliation procedure.”141 As is noted in the Virginia Commentary, “[t]he concept of compulsory recourse to conciliation (that is, an obligation to submit to conciliation in certain cases, but no obligation to accept as binding the report of the

137  Excerpt from Article 297(3)(b)(i) of the Convention. 138  Grégoire Lehoux, “La Troisième Conférence sur le droit de la mer et le règlement obligatoire des différends”, op. cit., 11, p. 70 (emphasis added). 139  A.O. Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea, Martinus Nijhoff Publishers, Dordrecht/Boston/Lancaster, 1987, p. 242. 140  Report to the Plenary by the Chairman, Ambassador Constantin Stavropoulos (Greece), Off. Rec. X (1978), p. 117. 141  Ibid., p. 118.

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commission) then emerged, and the group reached a consensus (conditional on an overall package deal) on the categories of issues that should be subject to compulsory conciliation.”142 This remains relevant for assessing the validity, or lack of the same, of the actions taken by the European Union against the Faroe Islands. As a matter of fact in its response of 17 June 2013 to the EU letter of 17 May 2013, informing the Faroe Islands that trade measures would be adopted should the Faroe Islands not “redress the situation” and abide by its “traditional share” to the Atlanto-Scandian herring, the Faroe Islands referred explicitly to the compulsory conciliation commission under Article 297(3)(b)(i) of the Convention. The reason that action was taken under section 2 of Part XV, rather than pursuant to Article 297(3)(b)(i) of the Convention under section 3 of Part XV, was based on the understanding that despite its invocation of the compulsory conciliation procedure, the European Union seemed to continue its contemplated action and by instituting the arbitral proceeding under section 2 of Part XV, it was believed that a burden would be shifted to the European Union to refrain from aggravating the dispute, and thereby refrain from ­adopting the putative measures. Rights and obligations of States Parties to the Convention, so carefully balanced in the form of a package deal, could easily disintegrate were unilateral interpretations to prevail in the resolution of inter-State disputes. Louis Sohn noted in this regard that “[i]t is important to achieve a large measure of uniform­ ity in the interpretation and application of the new Convention. Otherwise, the compromise arrived at with such great difficulty will quickly disintegrate, and the efforts of many years of negotiation would come to naught.”143 Indeed a comprehensive international legal instrument such as the Convention could disintegrate were there no compulsory dispute settlement procedures to make use of where disagreements opposed States Parties with regard to disagreements relating to the interpretation or application of the Convention. As was observed by Stevenson and Oxman, official representatives of the United States during the Third Conference, “there is simply too much room in the treaty for misunderstanding, abuse of power, and interference with rights on the basis

142  United Nations Convention on the Law of the Sea: A Commentary, vol. II, p. 101. 143  Louis B. Sohn, “Settlement of Disputes Arising Out of the Law of the Sea Convention”, San Diego Law Review, 1975, vol. 12, p. 516. Adede observed also shortly after the fourth session of the Third Conference that creating an effective system of dispute settlement “should be regarded as one of the pillars of the new world order in the ocean space”. A.O. Adede, “Settlement of Disputes Arising Under the Law of the Sea Convention”, AJIL, 1975, vol. 69, p. 798.

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of unilateral interpretation.”144 The above is particularly relevant in situations in which “un Etat fort peut imposer un état de fait”145 although it could be likely that such an auto-interprétation, to use the expression of Georges AbiSaab, could be nothing other than, “la représentation juridique par l’Etat de ses propres intérêts (donc juridiquement suspecte, car nemo judex in re sua).”146 If one were to rely on the above statements and introduce these elements in the considerations relating to deadlocked situations on the management and conservation of shared fish stocks, it would appear that the unilateral interpretation of a stronger state could impose its position, although its interpretation could be strongly subjective and merely represent a protection of its own interests. Yet, it should be stressed that notwithstanding the fact that an autointerprétation may produce legal effect vis-à-vis the State who is the author of the act, “elle ne constitue pas pour autant une constatation [. . .] qui soit capable de trancher le conflit d’interprétations, en étant opposable en tant que telle aux autres intéressés ou à la communauté internationale dans son ensemble.”147 The actions taken by the Faroe Islands as a response to the use of threats of the EU were based on the firm view that its allegations, quod non, that the Faroe Islands authorized non-sustainable catch was not a constatation which was opposable to the Faroe Islands. The actions of the European Union, it was argued, sought to circumvent one of the pillars underlying the package-deal,148 144  John R. Stevenson, Bernard H. Oxman, “The Third United Nations Conference on the Law of the Sea”, op. cit., 5, p. 795. William Burke noted that participants to the Third Conference would be more willing “to accept certain ambiguity and imprecision if they are confident” of a compulsory dispute settlement mechanism. William T. Burke, National and international law enforcement in the ocean, op. cit., 6, p. 134. 145  Georges Abi-Saab, “Cours général de droit international public”, Recueil des cours, vol. 207 (1987—VII), p. 226. 146  Ibid., p. 223 (emphasis in original text). 147  Ibid., p. 226. 148  As Ambassador Tommy Koh of Singapore, the President of the Third Conference, referring to the statements made by Participants at the signature session in Montego Bay, noted: “The second theme which emerged from the statements is that the provisions of [UNCLOS] are closely interrelated and form an integral package. Thus it is not possible for a State to pick what it likes and to disregard what it does not like. It was also said that rights and obligations go hand in hand and it is not permissible to claim rights under the [Convention] without being willing to shoulder the corresponding obligations” prior to concluding that “[a]lthough the [Convention] consists of a series of compromises, they form an integral whole. This is why the [Convention] does not provide for reservations [. . .] It is therefore legally impermissible to claim rights under the [Convention] without being willing to assume the correlative duties”. The Law of the Sea: United Nations Convention on the Law of the Sea (UN Pub. Sales No. E.83.V.5), pp. xxxiv and xxxvi.

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which resulted in the successful conclusion of the Third Conference. Quite interestingly it was noted already during the beginning of the Third Conference that an “optional protocol would be a totally inadequate way of dealing with” disputes and “to relegate dispute settlement to an optional protocol might jeopardize the ratification and even the signing of” the Convention.149 It is in light of the above that it has been observed that because of the obvious lack of precision relating to coastal States’ rights to exploit, inter alia, living natural resources vis-à-vis the rights of other states, “les mécanismes de règlement des différends auront une importance spécial pour l’éclaircissement de ces relations, de même que la formule pour l’assignation des droits résiduels.”150 7

Concluding Remarks

The consensus rule in conjunction with the package deal concept was a delicate walk on stilts, the result of which was a comprehensive dispute settlement mechanism, subject to exceptions, forming an integral part of the package deal. This ensured that the concessions made in the joint effort to find consensus on a broad range of issues could be viable, especially for the developing countries, fearing fait accomplis being imposed by the more powerful States Parties.151 As Sohn observed already in 1975, “[e]ffective legal procedures for dispute settlement are necessary to avoid political and economic pressures. While the larger and richer countries can apply extra-legal, political and economic pressures to achieve their ends, it is especially important for small countries and for developing countries to have disputes directed into legal channels where the principle of equality before the law prevails.”152 It is our collective responsibility to ensure that the procedures that were part of the consensus, which later became the Convention, remain intact. One such element is the dispute settlement mechanism under section 2 and, as appropriate, section 3 of Part XV of the Convention in relation to disputes 149  Louis B. Sohn, “Settlement of Disputes Arising Out of the Law of the Sea Convention”, op. cit., 143, p. 516. 150  Francisco Orrego Vicuña, “La zone économique exclusive: régime et nature juridique dans le droit international”, op. cit., 63, p. 85. 151  As noted by Georges Abi-Saab, “[d]es effectivités s’établissent ou se renforcent. Si ce sont elles—par la fameuse “force des choses”—qui finissent par prévaloir, ce serait aux dépens du droit ou le triomphe de la force sur le droit”. Georges Abi-Saab, op. cit., 145, p. 227. 152  Louis B. Sohn, “Settlement of Disputes Arising Out of the Law of the Sea Convention”, op. cit., 143, p. 516.

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on the management of shared fish stocks. The institution of unilateral actions, where there are multilateral compulsory procedures to which such disputes may be referred, may not only prevent any meaningful negotiations on joint management arrangements for the relevant stock, and therefore endanger the plausibility for such stocks to be managed sustainably, but also prejudice the integrity of the Convention, with the inherent risks that could flow therefrom.

Part 6 Regional Fisheries Management: Agreements on Allocation of Shared Fish Stocks

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CHAPTER 21

Freedom of Fishing on the High Seas, and the Relevance of Regional Fisheries Management Organisations (RFMOs) Stefán Ásmundsson1 Abstract Freedom of fishing on the high seas is clearly limited by international law. The right of states to authorise their nationals to engage in fishing on the high seas is subject to conditions such as setting appropriate conservation and management measures and cooperating with other relevant states. Management of high seas fisheries is in many areas done through competent regional fisheries management organisations (RFMOs). This article explains the limits to freedom of fishing on the high seas, as set out in the 1995 UN Fish Stocks Agreement and in the 1982 Convention on the Law of the Sea, by examining the relevant provisions. The article also explains how the international legal framework puts RFMOs in a key role regarding high seas fisheries and results in their conservation and management measures being relevant for all states, including non-members.

1 Introduction International law significantly limits the right of states to authorise their nationals to engage in fishing on the high seas. This right is subject to conditions such as setting appropriate conservation and management measures and cooperating with other relevant states. Management of high seas fisheries is in many areas done through competent regional fisheries management

1  The author is the Secretary of the North East Atlantic Fisheries Commission (NEAFC) and has previously served as a Legal Adviser and a Director in the Icelandic Ministry of Fisheries and Agriculture and as a Policy Officer in the European Commission. All opinions and statements are those of the author and do not necessarily represent the position of NEAFC or its Contracting Parties. The author’s PowerPoint is available at http://www.virginia.edu/colp/ pdf/bergen-asmundsson.pdf.

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004314252_023

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organisations (RFMOs), who thereby play a key role in high seas fisheries and whose measures are relevant for all states, including non-members. Nevertheless, there is not a full understanding of this among those who take part in discussions, and write reports, on ocean issues. It is too common to hear and see claims that a near absolute freedom to fish on the high seas constitutes a severe problem, and that RFMOs cannot be a sufficiently effective tool to deal with this problem as their measures are only relevant for the states that are formal members of the relevant RFMO. This short overview is intended to explain the legal reality in a not-too-technical manner, in an attempt to improve the general understanding of these issues. It presents a summary with clear conclusions in this regard. 2

UN Fish Stocks Agreement

The UN Fish Stocks Agreement2 (UNFSA) is the international legal instrument that most explicitly establishes the rule that conservation and management measures established by RFMOs are relevant for all states, not only the members of the relevant RFMO. Article 8(3) reads in part: “Where a subregional or regional fisheries management organization or arrangement has the competence to establish conservation and management measures for particular straddling fish stocks or highly migratory fish stocks, States fishing for the stocks on the high seas and relevant coastal States shall give effect to their duty to cooperate by becoming members of such organization or participants in such arrangement, or by agreeing to apply the conservation and management measures established by such organization or arrangement.” Article 8(4) of UNFSA gives teeth to this provision: “Only those States which are members of such an organization or participants in such an arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement, shall have access to the fishery resources to which those measures apply.” This makes it absolutely explicit that states that do not fulfil either of these two conditions do not have a freedom to fish on the high seas. Furthermore, Article 8(5) provides that where there is no RFMO to establish conservation and management measures for a particular straddling fish stock or highly migratory fish stock, relevant coastal States and states fishing on the high seas for the stock in the subregion or region shall cooperate to establish 2  The 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.

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such an organization or enter into other appropriate arrangements to ensure conservation and management of such stock and shall participate in the work of the organization or arrangement. UNFSA now has more than 80 parties,3 which include most of the world’s major fishing States. There has been an average of three new parties per year over the past decade, following a surge of new parties prior to that. Suggestions that UNFSA’s relevance is limited due to a lack of parties are therefore not appropriate. Consequently, suggestions that measures adopted by RFMOs have a limited relevance for those states that are not members of the relevant RFMO are not appropriate either. The provisions of UNFSA quoted above are as clear as they can be. Where an RFMO has competence, states that intend to authorise fishing shall become members of the RFMO or agree to apply the measures the RFMO establishes. Otherwise they are not fulfilling their obligations and do not have a right to authorise their nationals to fish. The relevance of RFMOs for non-members could hardly be greater: states that are not members of a relevant RFMO are legally obliged to apply the measures it establishes. The simplicity and clarity of this provision makes it almost superfluous to say anything more on the subject. Noting the clarity of this provision and the number of Parties to UNFSA should really be sufficient to correct anyone who makes claims regarding the right to fish on the high seas being almost without limits and the measures established by RFMOs being relevant only for its members. UNFSA includes further limits to the freedom of the high seas. This involves issues such as the precautionary approach and the compatibility of conservation and management measures. This overview will not go into the details of these, as it is not necessary to demonstrate the fact that UNFSA clearly limits the freedom of the high seas, and makes RFMOs relevant for non-members. It should nevertheless be noted that the limits that UNFSA sets on the freedom to fish on the high seas are actually greater than those that are covered in this overview. However, while acceptance of UNFSA is widespread and continues to grow, it is not universal. It may therefore be useful to demonstrate also the limitations of the right to fish in the high seas, and the relevance of RFMOs for nonmembers, for those states that have not accepted UNFSA. The fact is that while UNFSA is more explicit in this context, the generally accepted international law of the sea also significantly limits the right to fish in the high seas and makes RFMOs relevant for non-members. 3  Correct as of 30 January 2014.

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UN Convention on the Law of the Sea

The 1982 UN Convention on the Law of the Sea (UNCLOS) is as close as it is possible to get to have a generally accepted set of laws that apply to fisheries related issues. The Convention has 166 parties,4 and the states that are not parties generally accept the parts relating to fisheries as customary international law. The UNCLOS provisions relating to fisheries therefore constitute generally accepted international law to an extent that is very uncommon for international agreements. The following parts of this overview will go through the relevant provisions of UNCLOS, item by item. References to particular articles will be references to articles of UNCLOS, unless otherwise stated. 3.1 Freedom of the High Seas The freedom of the high seas is one of the fundamental principles of UNCLOS. However, it is very important to note that this freedom is not absolute. In fact, it has significant limitations. The freedom of the high seas is set out in Article 87. Article 87 Freedom of the high seas 1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: a) freedom of navigation; b) freedom of overflight; c) freedom to lay submarine cables and pipelines, subject to Part VI; d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; e) freedom of fishing, subject to the conditions laid down in section 2; f) freedom of scientific research, subject to Parts VI and XIII. 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. 4  Correct as of 30 January 2014.

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Paragraph 2 sets out a general limitation regarding the rights of others. This could on its own be of great significance for fisheries as they are the utilisation of limited resources which affect all other users of the resource. However, the other limitations relevant to fisheries are quite explicit, and therefore there is no need in this overview to go into a discussion on possible interpretations of this general obligation to take account of the rights of others. The wording of the sub-items in paragraph 1 is of two different types. One type states that there is freedom for a specific activity (e.g. navigation), and says nothing more. Therefore, only the general limitation applies. The other type explicitly states that the freedom of the high seas is subject to specific limitations that are set out in other parts of the Convention. The freedom of fishing on the high seas is among the activities that are clearly limited in this manner. UNCLOS states that while there is such a thing as the freedom of fishing on the high seas, it is “subject to the conditions laid down in section 2”, and thereby clearly limited. The obvious next step is then to examine what limitations this refers to. Article 87 is in section 1 of Part VII of UNCLOS. The statement that the freedom of fishing in the high seas is subject to the conditions laid down in section 2 therefore refers to section 2 of Part VII, which contains Articles 116–120. 3.2 Limitations of the Freedom to Fish on the High Seas Article 116 explicitly establishes that the right of states to authorise their nationals to fish on the high seas is subject to specific limitations. This means that states simply do not have the right to authorise their nationals to fish on the high seas unless they fulfil the conditions in Article 116. Article 116 Right to fish on the high seas All States have the right for their nationals to engage in fishing on the high seas subject to: a) their treaty obligations; b) the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67; and c) the provisions of this section. It is important to note in particular the use of the words “subject to”. This means that the right to fish is only effective if the conditions in the sub-paragraphs are met. This is fundamentally different from an obligation to “take account of”, “note” or any other less binding language. High seas fishing by vessels flying the flag of a state that does not fulfil the conditions in the sub-paragraphs

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of Article 116 is simply illegal fishing according to generally accepted international law. Before summarising, one should examine each of the conditions set out in Article 116 to conclude on exactly what conditions a state must fulfil before it can legally authorise its nationals to engage in fishing on the high seas. 3.3 “their treaty obligations” (article 116(a)) Any obligation undertaken by a state can be relevant in this context. This can include any treaty obligation, including obligations relating to membership of an RFMO. However, this limitation is only relevant for the states that are parties to the relevant treaty and this overview will therefore not examine this provision in any further detail. “the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67” (article 116(b)) This wording is unusual in treaty law, as it refers not only to rights and duties but also to interests, which can be more difficult to define. Furthermore, while there is a reference to Articles 63–67, the phrase “inter alia” makes it clear that the reference does not constitute an exhaustive list. This overview will not go into a discussion regarding what rights, duties and interests of coastal States are relevant, or regarding how interests should be defined in this context. It will make do with considering only the provisions that are explicitly referred to, and the rights and duties they establish. However, it is worth noting that this can be considered to be a minimalistic approach, as the wording refers to further limitations other than the ones looked at here. 3.4

3.5 Article 63(2) Article 63(2) establishes the general rule that where a stock occurs both in areas within and beyond national jurisdiction, all coastal States and states fishing for the stock in the high seas shall seek to agree on conservation and management measures. This principle is generally known as the duty to cooperate, and it means that a state that has not sought to reach an agreement on the management of a stock does not have the right under international law to authorise its nationals to fish for it in the high seas. It should also be noted that the provision explicitly mentions that efforts to reach agreement on management should be “either directly or through appropriate subregional or regional organizations”. It follows from this that in cases

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where an RFMO has competence to set management measures for a fish stock, these consultations are to take place through that RFMO. The conclusion is that where an RFMO has competence to set management measures for a stock that occurs both in areas within and outside national jurisdiction, no state can legally authorise its nationals to fish for the relevant fish stock without approaching the RFMO and seeking to reach an agreement through it. It would presumably also be consistent with international law to approach each member of the RFMO individually on a bilateral basis, but going through the RFMO would seem to be a more natural way to proceed. High seas fishing for a stock that occurs both in areas within and outside national jurisdiction by vessels flying the flag of a state that has not sought agreement through a relevant RFMO, or through a series of bilateral initiatives with all the members of the RFMO, is simply illegal fishing according to generally accepted international law. This makes measures set by a competent RFMO very relevant for non-members, either directly in their cooperation with the RFMO or indirectly through their bilateral cooperation with the members of the RFMO, where the measures would inevitably form a basis. 3.6 Articles 64–67 Articles 64–67 relate to specific types of species: highly migratory species, marine mammals, anadromous stocks and catadromous species. Rather than establishing general rules, they contain provisions that apply explicitly to the relevant type of species. For the purposes of this overview, there is no need to go into detail regarding these articles. However, it should be noted that they do not in any way undermine the duty to cooperate or the rule of using international organisations as a tool to give effect to that duty. On the contrary, they can be seen as strengthening the view that international organisations such as RFMOs are the appropriate tool for giving effect to the duty to cooperate. 3.7 “the provisions of this section” (article 116(c)) Paragraph (c) of Article 116 establishes that the right of states to authorise their nationals to fish in the high seas is subject to the other provisions of section 2 of Part VII, i.e. Articles 117–120. This means that a state that does not fulfil the obligations established in Articles 117–120 does not have the legal right to authorise its nationals to fish on the high seas. It is therefore worthwhile to look individually at each of these provisions.

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Article 117 Duty of States to adopt with respect to their nationals measures for the conservation of the living resources of the high seas All States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas. This article creates an explicit obligation to set conservation measures. High seas fishing by vessels flying the flag of a state that has not taken, or cooperated with others in taking, the appropriate conservation measures is simply engaging in illegal fishing according to generally accepted international law. Directly related to this is the limitation in Article 119, which elaborates further on the conservation of the living resources of the high seas. Due to the phrase “subject to” in Article 116, one can again conclude that states may only authorise high seas fishing if the conservation measures they take are consistent with Article 119. This explicitly includes setting allowed catch levels on the basis of the best scientific evidence available, contributing and exchanging scientific and fisheries data through competent international organisations, and taking account not only of the target species but also species associated with or dependent upon them. High seas fishing by vessels flying the flag of a state that has not taken such measures is simply illegal fishing according to generally accepted international law. A common way of meeting the obligations under Articles 117 and 119 is to work within RFMOs. RFMOs are not necessarily the only option in this context and other arrangements can also be valid. However, in areas where an RFMO has competence to set the appropriate measures, it can be seen as the natural forum for meeting these obligations. Article 120 establishes that the provisions on marine mammals in Article 65 also apply in the high seas. This is not relevant for this overview, so the details will not be examined here. Article 118 is the last provision that is explicitly referred to in Article 116 as a limitation to the right to fish in the high seas. This article is very important for this overview.

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Article 118 Cooperation of States in the conservation and management of living resources States shall cooperate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, cooperate to establish subregional or regional fisheries organizations to this end. This article establishes the so-called duty to cooperate, which was already mentioned in the context of Article 63(2). While Article 63(2) applies to stocks that occur both within areas under national jurisdiction and in the high seas, Article 118 applies to all high seas fishing and ensures that the duty to cooperate applies to all living resources that occur on the high seas. Again, due to the wording “subject to” in Article 116, states that do not fulfil the provisions of Article 118 do not have a right to authorise their nationals to fish on the high seas. This means that high seas fishing by vessels flying the flag of a state that does not cooperate with other relevant states in conservation and management is simply illegal fishing according to generally accepted international law. Of crucial importance for the purposes of this overview, and for the relevance of RFMOs, is that Article 118 explicitly mentions as relevant states in this context all states who fish for the same resources or different resources “in the same area”. This means that states intending to authorise high seas fishing must not only consult with those who conduct the same activity as they intend to conduct, and the states within whose jurisdiction the resources occur, but also all those who engage in fishing in that area. In areas where an RFMO has competence, this generally means for practical purposes that they must cooperate in conservation and management with all the members of that RFMO. Article 118 also provides that states fishing in the high seas shall, as appropriate, cooperate to establish subregional or regional organisations to conduct this conservation and management. However, it does not explicitly specify that states must take part in such organisations where they exist to be considered as having fulfilled their duty to cooperate. In this regard, one can say that Article 8(3) of UNFSA, discussed above, goes further. However, it may be a natural reading of the text that where relevant states have established an organisation

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as explicitly called for in Article 118, this organisation ought to be considered the appropriate forum for fulfilling the duty to cooperate. In any case, Article 118 is very clear in making it a condition for allowing high seas fishing that the relevant state cooperates with not only those who fish for the same resources, but also all states whose nationals conduct fishing in the same area. Leaving aside the question of legal obligation to cooperate with an RFMO, the most straight forward way to achieve this cooperation is through the relevant RFMO. The duty to cooperate is explicitly there in Article 118 and non-membership of an RFMO does not absolve any state of this explicit condition for allowing nationals to engage in high seas fishing. In areas where there is a competent RFMO, the participating states fulfil their duty to cooperate through it. One can hypothetically argue that the duty can be fulfilled without cooperating with the RFMO, through bilateral cooperation with all the relevant states. However, to do this in practice would be far from simple. Measures set by RFMOs are clearly very relevant for non-members in either case. Such measures will either be the basis of their cooperation with the relevant RFMO or the basis of their bilateral cooperation with the members of the RFMO. The conclusion of the examination of Article 118 is that high seas fishing in an area where a relevant RFMO has competence, by vessels flying the flag of a state that neither cooperates in conservation and management with the RFMO nor on a bilateral level with all members of that RFMO, is simply illegal fishing according to generally accepted international law. 4 Conclusion The conclusion of this overview is that the right of states to authorise high seas fishing is significantly limited by international law and that the conservation and management measures established by RFMOs are relevant for all states, including those that are not members of the relevant RFMO. The main points can be summarised as follows:

· UNFSA establishes very explicitly that states shall either join competent RFMOs or, if they are not members, apply the measures that the relevant RFMO sets. UNFSA further provides that only those states which fulfil either of these conditions shall have access to the relevant fishery resources.

·

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· UNFSA includes further limits to the freedom of the high seas. This involves · · · · · · ·

issues such as the precautionary approach and the compatibility of conservation and management measures. UNFSA is widely accepted, with more than 80 parties that include most major fishing States. Criticism based on it not being sufficiently widely accepted to be looked at as a major source of international law for high seas fishing is therefore unfounded. Even without taking account of UNFSA, the conclusion still stands that under international law the freedom of high seas fishing is significantly limited and RFMO measures are relevant for all states. The parts of UNCLOS that relate to fishing are generally accepted as customary international law and are therefore binding on all states. Article 87 of UNCLOS explicitly limits the freedom of fishing on the high seas. High seas fishing by vessels flying the flag of a state that does not fulfil the conditions set in UNCLOS is simply illegal fishing. UNCLOS establishes that states may not authorise their nationals to engage in fishing on the high seas unless they take the appropriate conservation measures. UNCLOS establishes that states must cooperate in conservation and management with those states whose nationals are involved in fishing in the same area, regardless of whether they fish for the same resources or not. In areas where an RFMO has competence, the measures it adopts affect non-members either directly in their cooperation with the RFMO or indirectly as the basis for cooperation at a bilateral level with the members of the RFMO.

CHAPTER 22

Allocation of Fishing Rights: Principles and Alternative Procedures Tore Henriksen* Abstract Allocation of fishing rights is important to achieve the objectives of conservation and sustainable use of living marine resources. Without any agreement on the distribution of fishing rights, there is likely to be “a race for resources” that is detrimental to the fish stock. States are under an obligation to cooperate on the conservation and management of different types of transboundary fish stocks, which have a geographical distribution covering areas under the fisheries jurisdiction of several states and/or adjacent areas of the high seas. This paper will identify and investigate what principles are applicable when states are cooperating directly or through regional fisheries management organizations on management of transboundary fish stocks. These principles have been more clearly articulated through recent legal developments, e.g., the principle of zonal attachment. But do these principles provide an adequate basis for ensuring agreements on allocation between states? It will be particularly important to assess how newcomers are accommodated into a high seas fishery and how measures to conserve a fish stock straddling between areas under national jurisdiction and the high seas are coordinated. The paper will investigate if and how alternative decision-making procedures of regional fisheries management organizations may influence the implementation of these principles.

1 Introduction This chapter deals with the fish stocks which are not exclusively within the fisheries jurisdiction of a single state. They are shared between several coastal States or are common resources as they occur in waters beyond national jurisdiction. The objective of sustainable use and conservation of living marine

* Professor, K.G. Jebsen Centre for the Law of the Sea, University of Tromsø. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/bergen-henriksen.pdf.

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resources cannot be achieved solely through regulating the output of the fishery activities through the setting of the total allowable catches and technical measures. Unless the access to the fishing activities is restricted, there is a risk that excess capacity is established in the fishery with subsequent overfishing. Two questions will be investigated: The first is whether there are any norms under international law or the law of the sea regulating how the access to these resources shall be allocated. Such norms may assist states in reaching agreement on the allocation of rights to participate in the fishery. The second question concerns alternative procedures for deciding on the allocation of fishing rights. It presumes that the traditional inter-state negotiations and decisionmaking of regional fisheries management organizations are not effective. Will the alternative procedures as developed in recent years improve the effectiveness of decision-making on allocation? In this paper these two questions will be addressed, first by looking into how shared resources are regulated in international law: Are there any substantive norms that may supplement? The law of the sea as reflected in the UN Convention on the Law of the Seas (UNCLOS)1 and the 1995 UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks2 (Fish Stocks Agreement) will be investigated with the view to identify norms for allocation. Finally, the first question will be addressed by investigating state practice. The goal is not to provide an exhaustive overview of practice but provide examples from allocation practice within coastal State fisheries arrangements in the Northeast Atlantic and from some regional fisheries management organizations (RFMOs) competent to regulate high seas fisheries. Finally, this chapter in discussing the second question will address the procedures of the Fish Stocks Agreement on decision-making and dispute settlement, which are developed through some RFMOs. These may improve the chance of achieving agreement on issues of allocation and provide stability. First, some words on the relevant fish stocks and the link between conservation and allocation.

1  United Nations Convention on the Law of the Sea, Montego Bay 10 December 1982, in force 16 November 1994, 1833 UNTS 3. 2  Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York 4 August 1995, in force 11 December 2001, 2167 UNTS 3.

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Background: Shared, Straddling, Highly Migratory and Discrete Fish Stocks The establishment of 200-nautical-mile Exclusive Economic Zones (EEZ) from the mid-1970s meant a gigantic redistribution of fishing rights. After being subjected to the freedom of all states to fish on the high seas, approximately 90% of harvested fish stocks now came under the sovereign rights of the coastal States within the 200-mile EEZ.3 However, the distribution of living marine resources and their ecosystems seldom correspond with the jurisdictional boundaries of states. UNCLOS includes provisions to accommodate for situations where fish stocks are distributed over areas that are subjected to the jurisdiction of several coastal States and/or areas beyond national jurisdiction. In this chapter the following types of fish stocks will be included:4 1.1

· Fish stocks that are distributed throughout the EEZs of two or more coastal States (shared fish stocks);5 · Fish stocks that occur in areas under national jurisdiction and in adjacent areas of the high seas.6 They include straddling fish stocks and stocks of highly migratory fish species. The last-mentioned are listed in Annex I of UNCLOS, which includes mostly tuna. Straddling fish stocks include fish stocks that are not listed in Annex I; and Fish stocks that only occur on the high seas (discrete fish stocks).

·

There may be combinations of these types: A fish stock may both be a shared and a straddling or a highly migratory fish stock. 1.2 Conservation and Allocation Coastal States and states fishing on the high seas are individually obligated to take measures to conserve these fish stocks in respect of areas under their jurisdiction and of vessels flying their flag fishing on the high seas.7 Further, 3  M.C. Engler-Palma, ‘Allocation of Fishing Opportunities in Regional Fisheries Management Organizations: From Power to Law?’ in: Russell and VanderZwaag (eds.), Recasting Transboundary Fisheries Management Arrangements in Light of Sustainability Principles Canadian and International Perspectives (Leiden/Boston: Martinus Nijhoff Publishers, 2010), 484. 4  UNCLOS includes provisions (Arts 65–67 and 120) on other shared living marine resources (marine mammals, anadromous and catadromous species) which will not be addressed here as they stipulate different norms for conservation and management. 5  UNCLOS Article 63(1). Note that ‘shared fish stocks’ is not used in UNCLOS but used in literature and state practice. 6  UNCLOS, Article 63(2). 7  UNCLOS, Article 61 and Article 117.

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they are required to cooperate on the conservation and management of these fish stocks.8 States have some flexibility in complying with this obligation: they may cooperate directly or through a regional fisheries management organization (RFMO).9 Under the Fish Stocks Agreement, the obligation is specified: States shall either become a member of the RFMO or accept to apply its conservation and management measures.10 This is a condition for accessing the regulated fisheries on the high seas.11 Thus, active cooperation has become a criterion for allocating fishing rights on the high seas. There is a clear linkage between conservation of a fish stock and allocation of fishing rights for the same stock.12 If states do not agree on the allocation of shares in the format of quotas or fishing efforts, there is de facto open access to the fisheries. Most likely, there will be a competition between the vessels of the entitled states to fish as much as possible before the total allowable catch is reached. The consequence of such an “Olympic race” may be excess capacity in the fishery and pressure for increasing the total allowable catch. The obligation to cooperate on the conservation and management of fish stocks therefore includes allocation of fishing rights. This has been confirmed through the general principles of the Fish Stocks Agreement on conservation and management of straddling and highly migratory fish stocks: States are required to ensure that “. . . the levels of fishing effort do not exceed those commensurate with the sustainable use of fishery resources”.13 When states are required to restrict the access of their vessels to a fishery it is necessarily presumed that there is agreement on allocation of the total allowable catches or the efforts between the relevant states. The obligation to apply the precautionary approach entails a requirement to adopt as soon as possible both catch and effort limits in new and exploratory fisheries.14 Among the functions of RFMOs specified in the Fish Stocks Agreement are decisions on participatory rights and on the accommodation of the fishing interests of new members.15 Conservation and management may have implications for access of states to fish stocks. For example, a fish stock regulated by two coastal States may have 8  UNCLOS, Article 63(1) and (2), Article 64 and Article 118. 9  UNCLOS, Articles 63, 64 and 118. 10  Fish Stocks Agreement, Article 8(3). 11  Fish Stocks Agreement, Article 8(4). 12  S.M. Garcia and J. Boncoeur, ‘Allocation and Conservation of Ocean Fisheries Resources: Connecting Rights and Responsibilities’, in: Nielsen et al. (eds.) Proceedings from the fourth world fisheries congress volume I, 49 American Fisheries Society Symposium, 2008, 596–597. 13  Fish Stocks Agreement, Article 5(h). 14  Fish Stocks Agreement, Article 6(5). 15  Fish Stocks Agreement, Article 10(b) and (i).

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expanded its migratory area into an adjacent area of the high seas. The coastal States and states fishing for the stock on the high seas will be required in such cases to agree on conservation and management measures for the adjacent areas of the high seas. One measure could be setting a total allowable catch (TAC) for the stock in the adjacent area to prevent overfishing. By establishing a TAC for the high seas component of the stock, the fishing opportunities are implicitly allocated between the EEZs and the high seas. Fluctuations in a stock or ecosystem considerations may call for more restrictive regulations of a fishery by cutting the TAC. Determining how the reduction is to be allocated between the relevant states will be essential to achieving the conservation objective. Climate change may even affect the habitats of fish stocks or their growth and range. Their expansion to new areas or retreat from an area may affect their transboundary character and consequently distribution of fishing rights between the states involved. 2

International Law and Shared Resources

2.1 General Other natural resources than fish stocks are transboundary or shared between states. They include petroleum, ground water and waterways. International law has been developed to address the conservation and management of such shared resources. The point of departure is the sovereign right of every state to exploit its natural resources pursuant to their own policies. This principle is reflected in numerous instruments, including UNCLOS.16 A corollary of the sovereignty principle, it was developed to ensure the control of the newly independent states over their natural resources.17 This principle is not without problems. The exercise of the right may infringe on the right of other states to exploit their natural resources. The right was therefore restricted through the Trail Smelter Case18 by an obligation not to cause damage to the territory of another state, developing the principle of good neighbourliness.19 The principle of 16  UNCLOS, Article 193. 17  Nico Schrijver, Sovereignty over Natural Resources. Balancing Rights and Duties, Cambridge: Cambridge University Press, 1997, 20–25. 18  Trail Smelter Case (United States v. Canada), Arbitral Tribunal, 16 April 1938 and 11 March 1941 3 RIAA 1905–1982 (1941). 19   Philippe Sands et al., Principles of International Environmental Law, Cambridge: Cambridge University Press, 2012, 195–200.

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sovereign rights over natural resources has gradually changed from a rightsbased to a qualified concept encompassing duties as well as rights. This is reflected in both the Stockholm and the Rio Declarations. Under Principle 2 of the Rio Declaration, states have a right to exploit their own natural resources according to their own policies and “. . . the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”20 Importantly, the restrictions on the sovereign rights were extended to include areas beyond national jurisdiction (global commons). Article 193 of UNCLOS includes a similar qualification of the principle. 2.2 Reasonable and Equitable Utilization of Shared Resources Following the Stockholm Declaration, the UN General Assembly underlined the importance of an effective system of cooperation on conservation and management of shared natural resources.21 It necessitated the development of international standards for conservation and management and of cooperation based on a system of information and prior consultations. The United Nations Environment Programme (UNEP) was asked to develop principles for equitable utilization of shared resources. These principles prepared by a group of experts were recommended guidelines for developing bilateral or multilateral conventions.22 They include principles on equitable utilization requiring states to cooperate on preventing, controlling and reducing the adverse effects of utilisation of shared resources. States sharing resources should endeavour to enter into legally binding agreements to regulate their conduct more specifically. The individual state is to ensure that the utilization of a shared resource does not threaten its conservation or have negative effects on the utilization of the resource by other sharing States. The obligation of cooperation includes prior notification, consultation and exchange of information.

20  Rio Declaration on Environment and Development, Annex I of Report of the United Nations Conference on Environment and Development, A/CONF.151/26 (Vol. I). 21  UN General Assembly Resolution 13 December 1973 3129 (XVIII) Co-operation in the field of the environment concerning natural resources shared by two States. 22  ‘Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States’ adopted by the Governing Council of UNEP by its decision 6/14 of 19 May 1978. . These principles were “taken note of by the UN General Assembly in Resolution 34/186.

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The International Law Commission (ILC) charged with the development and codification of international law has included ‘shared natural resources’ in its program of work.23 This has involved non-navigational uses of international watercourses, transboundary ground water and hydrocarbons.24 The ILC has adopted draft articles on Non-Navigational Uses of International Watercourses25 and on the Law of Transboundary Aquifers.26 The former constituted the basis for the 1997 Watercourses Convention.27 Both instruments include the principle of reasonable and equitable utilization of the shared resource.28 It includes the right to a reasonable and equitable share of the uses or benefits of the shared resources. Further, it contains a duty of states to utilize the resource in a manner that achieves its optimum and sustainable use and of maximizing the long-term benefits derived from the use. States are entitled and obligated to cooperate on an equal and reasonable footing on the use and protection of the resources.29 These obligations 23  Report of the International Law Commission on the work of its fifty-second session, 1 May–9 June and 10 July–18 August 2000, Official Records of the General Assembly, Fiftyfifth session, Supplement No. 10, A/55/10 . 24  See ILC web-pages on Law of Non-Navigational Uses of International Watercourses, ; Shared natural resources (Law of transboundary aquifers), and Shared natural resources (Oil and Gas) . The ILC decided not to pursue the transboundary gas and oil topic, Report of the International Law Commission Sixty-second session (3 May–4 June and 5 July–6 August 2010) General Assembly Official Records Sixtyfifth session Supplement No. 10 (A/65/10), paragraph 379. 25  Draft articles on the law of the non-navigational uses of international watercourses and commentaries thereto and resolution on transboundary confined groundwater, Yearbook of the International Law Commission 1994, Volume II, Part II, /CN.4/SER.A/1994/ Add.l (Part 2), paragraphs 222ff, < http://legal.un.org/ilc/texts/instruments/english/ commentaries/8_3_1994.pdf>. 26  Draft articles on the law of transboundary aquifers, Report of the International Law Commission Sixtieth session (5 May–6 June and 7 July–8 August 2008), A/63/10, paragraphs 53 ff., . 27  UN Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention), adopted by the General Assembly of the United Nations on 21 May 1997, entered into force on 17 August 2014. General Assembly resolution 51/229, annex, Official Records of the General Assembly, Fifty-first Session, Supplement No. 49 (A/51/49). 28  Watercourses Convention, Articles 5 and 6 Draft Articles on the Law of Aquifers, Articles 4 and 5. 29  Watercourses Convention, Article 5(2) and Draft Articles on the Law of Aquifers, Article 7.

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are further specified in the instruments.30 States are encouraged to enter into agreements on the shared resources.31 Neither instrument includes the definition of an equitable share. Instead, they include a non-exhaustive list of relevant factors and circumstances to be taken into account.32 The content of the right to an equitable utilization depends on the facts and circumstances of each individual case.33 The ICJ considered the right to an “equitable and reasonable share” a part of general international law in the Gabčíkovo-Nagymaros project case concerning construction works on the Danube.34 This was confirmed in the Pulp Mills case.35 2.3 Equitable and Reasonable Use of Marine Resources The question is whether this principle is relevant and applicable to natural resources other than international watercourses, in particular to marine resources. The rule of equity was central in the North Sea Continental Shelf Cases on delimitation where the rule of equity, ‘a rule of law that calls for the application of equitable principles’ was applicable.36 Although the fisheries zone of Iceland extended beyond 12 miles was not applicable to United Kingdom, the ICJ recognised in the Fisheries Jurisdiction case that Iceland enjoyed preferential rights in the distribution of fishing rights in the adjacent area of the high seas and where the United Kingdom had established rights in the same area.37 The principle of “due regard” required Iceland and the United Kingdom to have due regard for each other’s interests and the interests of other 30  Watercourses Convention, Articles 8, 9 (exchange of data), 11 (information on planned measures), 12–16 (notification), 17 (consultation) and Articles 20–26 (protection and management of the environment); Draft Articles on the Law of Aquifers, Articles 8 (exchange of data and information), 15(2) (prior notification) and Articles 10–15 (protection and management of the environment). 31  Watercourses Convention, Article 5(2) and Draft Articles on the Law of Aquifers, Article 9. 32  Watercourses Convention, Article 6 and Draft Articles on the Law of Aquifers, Article 5. 33  Watercourses Convention, Article 6(3) and Draft Articles on the Law of Aquifers, Article 5(2). 34  Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, 7 (56, paragraph 85). 35  Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment 20 April 2010, I.C.J. Reports 2010, 14 (74–75, paragraph 177). 36  North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, 3 (48, paragraph 88). 37  Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports 1974, 3 (30, paragraph 68).

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states in the resources. This requirement was specified by the objective of equitable solution where the preferential fishing rights of Iceland were to be reconciled with the traditional fishing rights of the United Kingdom.38 Iceland and the United Kingdom were required to conduct negotiations with the view to bring “. . . about an equitable apportionment of the fishing resources based on the facts of the particular situation, and having regard to the interests of other States which have established fishing rights in the area.”39 The objective of delimitation of the EEZ and continental shelf is “. . . to achieve an equitable solution.”40 However, UNCLOS does not include any references to the equity rule regarding the conservation and management of marine living resources. This does not exclude the relevance and application of the rule in regulating access to transboundary or open access living marine resources. UNCLOS may be supplemented by general international law.41 2.4 Assessment The rule of equity on the utilization of shared resources has gradually been recognized in judicial decisions, agreements and resolutions of regional and international organizations. However, it has not been promulgated through a single definition. The two instruments developed through the ILC are illustrative when equity is to be defined by a non-exhaustive list of factors and circumstances. Even the ICJ recognised it would have difficulties “. . . if it were itself to attempt to lay down a precise scheme for an equitable adjustment of the rights involved.”42 Although the rule or principle has a legal character, the question is whether it may provide any assistance in allocating fishing or participatory rights. The developing of such vague standards is a deliberate choice of states providing them with flexibility in negotiations where they can argue their interpretation of the rule.43

38  Ibid., paragraph 69. 39  Ibid., paragraph 78. 40  UNCLOS, Articles 74 and 83. 41  General international law may supplement the interpretation or application of the relevant UNCLOS provisions. Under its preamble, matters not regulated by the Convention are to be regulated through general international law. 42  Ibid., paragraph 73. 43  Eyal Benvenisti, Sharing Freshwater Resources: International Law and Optimal Resource Use. Cambridge: Cambridge University Press, 2002, 161–168.

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The Law of the Sea and Principles of Allocation of Fishing Rights

3.1 General This part concerns the principles of allocation of fishing rights as may be deduced from the law of the sea as reflected in UNCLOS and the Fish Stocks Agreement. They will be addressed in three sections. The first concerns the allocation of shared fish stocks between coastal States, the second concerns the allocation of the straddling and highly migratory fish stocks between coastal States and states fishing on the high seas, and the third concerns the allocation between states fishing on the high seas. The rationale for this distinction is explained below. 3.2 Allocation between Coastal States The coastal States sharing a fish stock are required to negotiate with the view to agree on measures that “. . . coordinate and ensure the conservation and development . . .” of the stock.44 Although allocation of fishing rights between the coastal States would be an adequate measure to ensure coordination, UNCLOS does not provide any specific guidance as to how allocations should be made. Principles of allocation necessarily have to be derived from UNCLOS provisions. Some assistance may be found in Article 61, which sets out the obligations of the individual coastal States to conserve and manage living marine resources within its EEZ. In establishing the objectives for the management and conservation of its stocks, the coastal State may take into consideration the economic needs of fishing communities as well as fishing patterns and the special requirements of developing States, as stated in Article 61(3). It can be argued that these considerations are relevant when the coastal States seek to coordinate their measures. It suggests that the distribution of the traditional fishing or historic fishing of the stocks between the EEZs of the coastal States as well as the relative dependency of their coastal communities should be reflected in the quantities to be fished within the different EEZs. Establishing shares based on traditional fishing may be quantified but it is more problematic to convert dependency into shares. Further, it may not be considered an equitable solution from the perspective of the coastal States which have had a modest harvest of the stock but where the stock has a major part of its distribution within its EEZ. The sovereign rights of coastal States are defined based on geographic criteria (distance from the baselines). Therefore, geographical considerations could be relevant. A coastal State should not exercise its sovereign rights in a manner that exceeds the extent to which the stock occurs 44  UNCLOS, Article 63(1).

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in its zone. This would be inconsistent with the equity rule. A principle of zonal attachment may be introduced, the operationalization of which will be addressed below. In addition to agreeing on its operationalization, the coastal States also have to agree on which other principles are relevant and how they should be weighted. UNCLOS does not provide any guidance on this process. Allocation between Coastal States and States Fishing on the High Seas Straddling fish stocks and highly migratory fish stocks are characterized by occurring both within areas under national jurisdiction and in adjacent areas of the high seas. They are subject to quite different regimes: the sovereign rights of coastal States within 200 nautical miles and the freedom of fishing of all states in adjacent areas of the high seas.45 The relevant coastal States and states fishing for the stocks are required to cooperate on the conservation of stocks. Whereas cooperation on straddling fish stocks is restricted to the adjacent areas of the high seas, cooperation on the highly migratory fish stocks shall ensure conservation of the stock both within and beyond the EEZ.46 The obligation in regard to highly migratory fish stocks is more expansive as states are not only to cooperate on their conservation but also in their optimum utilization. This is probably because of their wide area of distribution and not being restricted to particular EEZs. At any rate, some form of coordination of the conservation and management of the fish stocks between the two regimes needs to be undertaken. It follows from the right and obligation of the coastal State to participate in the cooperation on the conservation of these stocks on the high seas. Further, the right for all states to fish on the high seas are subject to the rights, duties and interests of coastal States in respect of these transboundary fish stocks.47 Such coordination presupposes that there is some form of allocation between the coastal States and the states fishing for the stock on the high seas. In addition, fishing rights may be allocated between states fishing on the high seas. Since the principles for allocation may be different, this is dealt with below. Neither UNCLOS Article 63(2) nor Article 64(1) specifies how the measures established by the coastal State(s) and through agreement (through either direct cooperation or a regional fisheries management organization) are to be coordinated. Where the cooperation concerns the stock in the adjacent area of the high seas, the setting of the total allowable catch for this area will have 3.3

45  UNCLOS, Article 56(1)(a) and Article 87(1)(e). 46  UNCLOS, Article 63(2) and Article 64(1). 47  UNCLOS, Article 116(b).

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implications both for the total catch of the stock and the share to be harvested on the high seas and in areas within national jurisdiction. If the stock is managed in its entirety through a regional fisheries management organization, the interests of the relevant coastal States and states fishing on the high seas will have to be reflected in the allocation of the total allowable catch or another method of allocation of fishing rights. Again, UNCLOS provides little guidance as to how the rights to fish on straddling fish stocks and highly migratory fish stocks are to be allocated between areas under national jurisdiction and beyond or between coastal States and states fishing on the high seas. There have been arguments that by subjecting the right to fish on the high seas to the rights, obligations and interests of the coastal States, they have been accorded superior rights.48 The implications of such rights are not evident. However, subjecting the fishing rights to the rights and interests of the coastal States suggests that the zonal attachment of the stock as well as the traditional fishing and the dependence of fishing communities of the coastal States are relevant when the total allowable catch is established for the high seas or allocated between states participating in the fishery. One of the major innovations of the Fish Stocks Agreement is the requirement under Article 7(2) that the measures established for areas under national jurisdiction and for areas beyond are to be compatible. The objective is to ensure that the straddling and highly migratory fish stocks are conserved in their entirety. The coastal States and the states fishing on the high seas are obligated to ensure that the measures do not have harmful effects on the stock as a whole.49 The compatibility requirement is supplemented by several factors that states are to take into consideration in establishing the measures.50 Some of them indicate the weight to be given to the measures established by the coastal State and those agreed through the RFMO. The measures to be established for the high seas are not to undermine those established by the coastal States.51 It seems to indicate a priority given to the coastal States’ interests. On the other hand, the previous measures established for the high seas are relevant.52 This points to a need for more balance between the interests of coastal States and states fishing on the high seas.

48  William Burke, The New International Law on Fisheries. UNCLOS 1982 and Beyond, Oxford: Oxford University Press, 1994, 133. 49  Fish Stocks Agreement, Article 7(2)(f). 50  Fish Stocks Agreement, Article 7(2) (a)–(f). 51  Fish Stocks Agreement, Article 7(2)(a). 52  Fish Stocks Agreement, Article 7(2)(b) and (c).

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Other factors are more directed at the allocation of the fishing activities between areas under national jurisdiction and the high seas, or between coastal States and states fishing on the high seas. They include the distribution of the stock or to which extent it occurs in areas under national jurisdiction (zonal attachment of the stock).53 The provision does not stipulate how the zonal attachment is to be calculated. Other factors that may influence the allocation include the fishing for the stock, the geographical particulars and biological characteristics of the stock. Questions may be raised about both the meaning and the weighing of these factors. What fishing activities are relevant? Are the fishing activities of third states in the EEZ relevant? A separate factor is the relative dependence of the coastal State(s) and states fishing on the high seas on the stock.54 It implies that the fish stock should be allocated according to needs. Again, the question is how to translate this factor into quantitative figures. 3.4 Allocation between States Fishing on the High Seas On the high seas, straddling fish stocks, highly migratory species and fish stocks only occurring on the high seas (discrete fish stocks), are subject to the freedom of fishing.55 The freedom is subject to several stipulations, and is therefore more correctly described as a right to fish.56 These stipulations include the obligation to conserve and manage fish stocks on the high seas and to cooperate with other states involved in the fishing activities on conservation and management.57 It would seem to include also the allocation of fishing rights. States are obligated to establish regional fisheries management organizations (RFMO) as a means for cooperation. One task for the RFMOs is to allocate fishing rights between its members. The relevant provisions of UNCLOS do not specify how they are to be allocated. Special requirements of developing States and fishing patterns are relevant considerations when establishing conservation measures for the high seas.58 These considerations may have implications for the allocation of fishing rights. A major challenge to defining the allocation is the status of fishing as a freedom of the high seas. It means that there is open access to the fisheries, even to those that are regulated through RFMOs. Vessels flying the flags of states not previously engaged in a fishery (new entrants) 53  Fish Stocks Agreement, Article 7(2)(d). 54  Fish Stocks Agreement, Article 7(2)(e). 55  UNCLOS, Article 87(1)(e). 56  UNCLOS, Article 116 (chapeau). 57  UNCLOS, Article 117 and Article 118. 58  UNCLOS, Article 119(1)(a).

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may enter it at any time, challenging the allocation agreed between the “established” states. The new entrants are subject to the above-mentioned conservation and cooperation obligations. UNCLOS does not regulate if and how their interests shall be accommodated. However, there is an obligation not to discriminate directly or indirectly on the basis of nationality in the adoption and implementation of conservation measures.59 This obligation is reflective of the freedom of fishing or the right of all states to participate in the high seas fishery. It implies that the principles for allocation of fishing rights, including the accommodation of new entrants, must be based on objective and reasonable criteria. States must be evaluated according to the same standard. A new entrant may not automatically be allocated fishing rights in an established fishery. A decision, however, to reserve fishing rights for the “established” states would probably violate the non-discrimination requirement. The Fish Stocks Agreement was developed recognizing that UNCLOS does not adequately address issues like new entrants or the free riders (states, which vessels are involved in high seas fisheries without participating in cooperation on conservation and management). The regional fisheries management organizations (or alternatively arrangements) are provided with exclusivity in regulating fisheries for straddling or highly migratory fish stocks on the high seas. States are required to either become members of the RFMO or agree to apply its conservation and management measures.60 If there does not exist any RFMO to regulate the fishery the relevant states are required to cooperate on establishing an RFMO and to participate in its work.61 The consequence of this is that the right to fish on stocks regulated by an RFMO is dependent on the membership or acceptance by the state concerned to apply its measures.62 Thus, the right of a state to participate in a high seas fishery is not dependent on its membership but on its cooperation. The functions of the RFMO are specified in the Fish Stocks Agreement.63 They include adoption of conservation and management measures, conduct of scientific assessments and obtaining scientific advice, adoption of standards for collection, reporting and exchange of fisheries data, compilation and dissemination of statistical data and the adoption of mechanisms for control and enforcement. The RFMOs shall also be competent to adopt participatory rights by allocating the total allowable catch or the total fishing efforts and by 59  UNCLOS, Article 119(3). 60  Fish Stocks Agreement, Article 8(3). 61  Fish Stocks Agreement, Article 8(5). 62  Fish Stocks Agreement, Article 8(4). 63  Fish Stocks Agreement, Article 10.

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adopting means for accommodating new members.64 These functions are formulated broadly, suggesting that there is some discretion as to when and how participatory rights are to be established. The Fish Stocks Agreement does not include any provisions explicitly setting out the principles for allocation of participatory rights. Guidance on determining the “nature and extent” of the participatory rights of new members is found in Article 11. The new members include states that have not been allocated any quota or other types of participatory rights in the fisheries regulated by the RFMO. They are new entrants. Article 11 is, according to its wording, applicable to new members. However, non-members are entitled to access the same fishery as the members if they agree to apply the conservation and management measures adopted by the RFMO.65 Consequently, Article 11 must be read as regulating the participatory rights of all new entrants, member as well as non-members. Article 11 is seemingly not applicable to states with established participatory rights in a fishery regulated through a RFMO. The provision deals with whether and how new entrants may be accommodated. It is difficult to see how the existence of any participatory rights for new entrants can be determined without considering the rights of the established states. The question of whether new entrants shall be allowed into an existing fishery is about how the rights to exploit the resource shall be allocated. By deciding the rights of newcomers, the rights of established states are indirectly determined and vice versa. Further, the right of all states under the law of the sea to fish on the high seas is in its core a right to be treated in a non-discriminatory manner.66 This suggests that the principles of allocation are applicable to all states irrespective of whether they are new entrants or have established rights in a fishery. The principles must be formulated and applied in a manner that do not in fact or in form discriminate on the basis of nationality. In conclusion, the guidance on determining participatory rights for new entrants as stipulated in Article 11 is applicable to the established states as well. It should be noted that this does not necessarily address all issues concerning participatory rights of established states, including the possible consequences of non-compliance with conservation and management measures or how to allocate participatory rights in new or exploratory fisheries.

64  Fish Stocks Agreement, Article 10(b) and (i). 65  Fish Stocks Agreement, Article 8 (4). 66  UNCLOS Article 119(3). Under Article 4 of the Fish Stocks Agreement, it shall not prejudice the rights of states under UNCLOS.

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Article 11 includes a non-exhaustive list of six considerations to be taken into account in decision-making on participatory rights. Other factors may be relevant. There is neither any indication of their relative weight nor whether they are cumulative. If previous fishing activities qualify for rights, does that include activities that have been in violation or inconsistent with conservation and management measures? The considerations reflect different types of interests or reflections of the equity rule that are not necessarily pointing in the same direction. The first consideration concerns the status of the stock and level of harvesting effort in the fishery.67 It implies that the total allowable catch or the efforts cannot be increased to accommodate for new entrants or to raise the quotas of existing states unless it is consistent with the long-term conservation and sustainable use of the stock.68 If a fish stock is fully utilized, the accommodation of new entrants or the increase of quotas of existing states would have to be undertaken through redistribution of fishing rights, within the limits of sustainable use. The wording of the consideration and its placement suggests that new entrants will have difficulties accessing an on-going and fully utilized fishery. The second consideration includes the respective interests, fishing patterns and practices of new and existing states.69 In practical terms, this implies that allocation is to be based on the traditional fishing activities of states. However, the criteria are not clear. The consideration does not specify the relevant period, where the fishing activities must be undertaken or what type or extent of fishing activity may qualify. Nevertheless, the consideration seems to favour states with established fishing rights before new entrants. The third consideration concerns the respective contribution of new entrants and existing states to the conservation of fish stocks, the collection of data and the undertaking of scientific research.70 Fishing rights are established on the basis of the contribution of states to the knowledge about and to the conservation of the fish stock. This is perhaps the consideration that may provide new entrants a chance to qualify for access to an on-going fishery. Under this consideration, states are rewarded for complying with their obligations under the Fish Stocks Agreement.71 Ironically, when the total allowable 67  Fish Stocks Agreement, Article 10(a). 68  Fish Stocks Agreement, Articles 2 and 5(a). 69  Fish Stocks Agreement, Article 10(b). 70  Fish Stocks Agreement, Article 10(c). 71  Such obligations include collection and dissemination of catch data and other information and cooperation on scientific research under Article 14 and different duties of flag

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catch is reduced due to overfishing the states responsible may be rewarded by increased national quotas when the stock has been rebuilt. The remaining three considerations involve different types of needs: The needs of coastal communities that are mainly dependent on fishing for the stock, the needs of coastal States whose economies are overwhelmingly dependent on fishing and the interests of developing coastal States in whose areas of national jurisdiction the stocks occur.72 The first aims at accommodating direct dependency on fishing for the stock in question while the second relates to dependency on fisheries in general. The third aims at levelling the differences between developed and developing States by providing developing States special consideration in accommodating access to high seas fisheries. It does not provide developing states with a general right to access high seas fisheries. The consideration is applicable within the subregion where the state belongs or to the larger region which includes areas under its fisheries jurisdiction. Developing States must otherwise qualify under the same conditions as other states.73 3.5 Assessment All these considerations have a general character. There will obviously be questions as to how to operationalize, interpret, and apply them. They may include questions such as what does “mainly dependent” or “fishing practices” mean and how are they to be translated into shares of the total allowable catch? Which other considerations may be relevant? Finally, how are these considerations weighted? The fact that the focus of the Fish Stocks Agreement is on new entrants also indicates that the allocation issues were not fully resolved. It signals that new entrants may have difficulties accessing fisheries that are regulated through RFMOs.74 This is confirmed by the requirement that states have “. . . real interest in the fisheries concerned . . .” to be entitled to become a member of the RFMO.75 The non-exhaustive list of generally formulated considerations is similar to the instruments referred to above on shared freshwater resources. This States under Articles 18 and 19 on the implementation and compliance with conservation and management measures. 72  Fish Stocks Agreement, Article 10(d)–(f). 73  See Fish Stocks Agreement, Part VII providing for other obligations to accommodate the special needs for developing States. 74  See A. Serdy “Postmodern International Fisheries Law or We are All Coastal States Now”, 60 International and Comparative Law Quarterly, No. 2 (April), 2011, 387–390. 75  Fish Stocks Agreement, Article 8(3).

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suggests that also on allocation of fishing rights states prefer applying the principles to the facts and circumstances of each individual case before establishing clearer norms that could provide more predictability. In any case, decisions on the allocation of quotas and accommodation of new entrants in the high seas have to comply with the principle of non-discrimination. The principle is reflective of the right of all states “. . . to engage in fishing on the high seas . . .”76 In that sense, it is an expression of the equity rule.77 The equity rule is wider as it is decisive on which considerations or circumstances are relevant whereas the non-discrimination principle dictates that the considerations are objective and applied in the same way in respect of all states. 4

Practicing the Principles of Allocation

4.1 Introduction In this section, the allocation of fishing rights by coastal States and through RFMOs will be addressed. The purpose is not to give a detailed or complete account of the practice but an overview of whether and how fishing rights are allocated through some coastal State agreements and through RFMOs. It is telling that the UN General Assembly in its recent resolution on sustainable fisheries urges RFMOs “. . . to address participatory rights, including through, inter alia, the development of transparent criteria for allocating fishing opportunities . . .”78 In the following, the same structure as in the previous section is applied. 4.2 Allocation between Coastal States Northeast Atlantic coastal States have entered into bilateral or multilateral agreements on the conservation and management of shared fish stocks that include the allocation of the total allowable catch between the parties.79 These 76  UNCLOS, Article 116, chapeau. 77  M.C. Engler-Palma, supra note 3, 503 and 518. 78  Resolution A/RES/69/109—Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, paragraph 141. 79  Agreed Record of Conclusions of Fisheries Consultations between Norway, the European Union and the Faroe Islands on the Management of Mackerel for 2015, Bergen 21 November 2014; Agreed Record of Conclusions of Fisheries Consultations on the Management of the Norwegian Spring-Spawning (Atlanto Scandian) Herring in the North-East Atlantic for 2014, Reykjavik 28 March 2014; Agreed Record of Conclusions of Fisheries Consultations

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agreements do not stipulate which principles of allocation have been applied or how they have been translated into national quota shares. They are shortterm and are usually renegotiated annually. The agreements do not always include all the relevant coastal States. The consequence may be that the stocks are overfished. The reason is mainly disagreements on how the total allowable catch is to be allocated. This was the reason that the Faroe Islands did not enter the agreement on the management of white herring for 2014 and why Iceland is not a party to the mackerel agreement for 2015.80 The EU, Norway and the Faroe Islands have agreed on a fisheries management arrangement for the mackerel for a five-year period.81 It includes a long-term management plan establishing targets for its conservation and management and a scheme of control and monitoring. The annual TAC is to be set based on scientific advice in accordance with the management plans. It is to be allocated between the three parties through specific shares to be maintained throughout the period. Shares are set aside for other coastal States (Iceland and Greenland) to encourage them to participate in the arrangement and for the fishing on the high seas to be regulated through the North East Atlantic Fisheries Commission (NEAFC). Importantly, this means that the TAC is not open for adjustments to accommodate new participants. Even if the basis for setting the shares is not known, they may provide for more stability. It remains to be seen whether the shares set aside for other coastal States will attract them or whether they will still operate outside the arrangement. The last option may challenge the stability of the arrangement. In 2013, the coastal States agreed to establish a working group charged with obtaining information on the distribution of the herring stock throughout its life stages and the distribution of catches of the stock.82 This agreement could be seen as a first step towards operationalizing the zonal attachment principle to provide for a more long-term arrangement. The report of the group provides valuable information on the zonal attachment but includes different variables between the European Union, the Faroe Islands, Iceland and Norway on the Management of Blue Whiting for 2014; Protokoll for Den blandede norsk-russiske fiskerikommisjonen, item 5 (Northeast Arctic Cod) . 80  Ibid. 81  Agreed Record on A Fisheries Arrangement between the European Union, the Faroe Islands and Norway on the Management of Mackerel in the North-East Atlantic from 2014 to 2018, London 12 March 2014. 82  Agreed Record of Conclusions of Fisheries Consultations on the Management of the Norwegian Spring-Spawning (Atlanto-Scandian) Herring in the North-East Atlantic for 2014, Reykjavik 28 March 2014, Annex III.

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to quantify the zonal attachment.83 It is left to the coastal States to agree on how to transfer this data into actual shares. How much shall the distribution of the larvae count versus the distribution of the adults, which part of the year or years are relevant, and is the distribution of catches representative of the zonal attachment? Other considerations or principles may also be relevant. The fact that the coastal States were not able to reach an agreement for 2015 in late 2014 suggests that this has not been an easy task.84 On the other side, the management of shared fish stocks in the Barents Sea through the Joint Norwegian-Russian Fisheries Commission has been successful in terms of the coastal States agreeing on the distribution of the total allowable catches. In 2010, the Joint Fisheries Commission agreed on a TAC for Greenland halibut and the formula for its distribution between Norway and Russia.85 The national quotas were set on the basis of extensive research. The distribution of fishing rights between Norway and Russia on shared fish stocks is also regulated through the 2010 Barents Sea Treaty on delimitation and cooperation.86 The two coastal States have committed themselves to continue their cooperation through the Joint Fisheries Commission, inter alia with the view to maintain their respective shares of total allowable catches and to ensure the relative stability of their fishing activities.87 It is obviously easier to achieve agreement when only two coastal States are involved. Allocation between Coastal States and States Fishing on the High Seas Some constituent treaties of RFMOs include a requirement for consistency between the conservation measures to be adopted for fish stocks in its 4.3

83  Report of the Coastal States Working Group on the distribution of Norwegian spring spawning herring in the North-East Atlantic and the Barents Sea, Copenhagen, 4–7 March 2014, . 84  See press release of 19 December from the Norwegian Ministry of Trade, Industry and Fisheries . 85  Protokoll for den 38.sesjon i Den blandede norsk-russiske fiskerikommisjonen, item 8.1 (in Norwegian) . 86  Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean (English translation), Murmansk 15 September 2010, in force 7 July 2011, UN register No. I 49095, . 87  Supra note, Article 4(2).

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regulatory area on the high seas and those established for the same stock by relevant coastal State(s) for areas under national jurisdiction.88 However, treaties adopted before the Fish Stocks Agreement such as the NAFO and NEAFC Conventions89 do not specify how to achieve consistency. The RFMOs competent to regulate highly migratory fish stocks traditionally do not include a consistency requirement.90 They include a reservation clause that the application of the treaty is not to prejudice the sovereign rights of coastal States under the law of the sea.91 The RFMOs established or having their treaties revised after the adoption of the Fish Stocks Agreement usually include a requirement of compatibility.92 However, it is only the Western and Central Pacific Fisheries Commission (WCPFC) which is explicitly instructed as to how compatibility is to be achieved. Even if the requirement of compatibility or consistency has gradually been introduced to the constituent treaties of RFMOs, there is still a question as to 88  Convention on the Future Multilateral Cooperation in North-East Atlantic Fisheries (NEAFC), London 18 November 1980, in force 17 March 1982 1285 UNTS 129, Article 5(2); Amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, adopted 28 September 2007 (NAFO 2007) (not in force), GC Doc 07/4, Article VI(11), ; Southern Indian Ocean Fisheries Agreement (SIOFA), Rome 7 July 2006, in force 21 June 2012, 2835 UNTS 1, Article 6(1)(g); Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC), Honolulu 5 September 2000, in force 19 June 2004, 2275 UNTS 46, Article 8; Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (SEAFO), Windhoek 20 April 2001, in force 13 April 2003, 2221 UNTS 189, Article 6(12). 89  See note 84. 90  International Convention for the Conservation of Atlantic Tunas (ICCAT), Rio de Janeiro 14 May 1966, in force 21 March 1969, 673 UNTS 63; Agreement for the Establishment of the Indian Ocean Tuna Commission (IOTC) Rome 25 November 1993, in force 27 March 1996, 1927 UNTS 329; Convention for the Conservation of Southern Bluefin Tuna (CCSBT), Canberra 10 May 1993, in force 20 May 1994, 1819 UNTS 359. 91  Convention for the Conservation of Southern Bluefin Tuna (preamble); Convention for the Strengthening of the Inter-American Tropical Tuna Commission established by the 1949 Convention between the United States of America and the Republic of Costa Rica (IATTC), Antigua June 2003, in force 27 August 2010, Official Journal of the European L15, 19/01/2005, p. 10 . Article V; Agreement for the Establishment of the Indian Ocean Tuna Commission, Article XVI. 92  WCPFC, supra note 88, Article 8; IATTC, supra note 88, Article V(2); Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific, (NPFC), Article 3(i), adopted in force 24 February 2012 in force 19 July 2015, .

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its implementation. It varies from RFMO to RFMO, depending on the membership and type of RFMO. In NEAFC, which membership consists of the coastal States of the region, the straddling fish stocks are managed through a two-step procedure.93 First, the relevant coastal States sharing the stock agree on a TAC and its allocation, then NEAFC is asked to adopt measures for the adjacent parts of the high seas which to a large extent implements the agreements between the coastal States.94 If the coastal States are not successful in agreeing on the management of the fish stock in question there will not be any comprehensive measure for its high seas component.95 Where states fishing on the high seas are dominating among the membership, it will be more difficult for the coastal State to influence the measures to be adopted through the RFMO. This has been the case with NAFO where the TACs established through the RFMO for most straddling fish stocks are applicable throughout their area of distribution, including areas under national jurisdiction.96 These TACs are allocated between the Member States, including the relevant coastal State. The 2011 Performance Review of NAFO recommended that the RFMO “. . . bolster its commitment to ensuring the compatibility of measures adopted for the conservation and management of straddling stocks within the Convention Area.” Further, the “. . . responsibilities of the coastal State and Commission in coordinating their respective measures . . .” should be clarified.97 The conservation and management measures adopted through the tuna RFMOs are applicable throughout the migratory areas of the regulated species. The report on the performance of the WCPFC suggests that the compatibility requirement of the Fish Stocks Agreement is applied somewhat differently within this RFMO as its convention area includes areas under national jurisdiction as well as areas of the high seas. The requirement may therefore have the most practical implications for the measures to be taken by the coastal States within the EEZs.98 Where the RFMO allocates the TAC or establishes other types of 93  T. Henriksen, G. Hønneland and A. Sydnes, Law and Politics in Ocean Governance. The UN Fish Stocks Agreement and Regional Fisheries Management Regimes, M. Nijhoff Publishers: Leiden, 2006, 118–120. 94  Op. cit., 119–120. 95  Report of the Performance Review Panel 2014 Northeast Atlantic Fisheries Commission (NEAFC), 47–48. 96  Henriksen, Hønneland and Sydnes, op. cit., 80–83. 97  NAFO Performance Assessment Review 2011, 22, . 98  Review of the Performance of the WCPFC, WCPFC8–2011/12, 28 February 2012, .

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participatory rights, the interests of the relevant coastal States may be taken into consideration.99 The allocation criteria established by ICCAT100 include the considerations under Article 7 of the Fish Stocks Agreement for establishing compatible measures.101 4.4 Allocation between States Fishing on the High Seas Most RFMOs are competent to establish participatory rights such as allocating the total allowable catch for a stock between its members. It includes accommodating new members. The question of accommodating new entrants to existing high seas fisheries constitutes an inherent challenge to the work of RFMOs.102 Several RFMOs have introduced a system of cooperating non-contracting parties.103 These are normally RFMOs with closed membership through criteria or acceptance by all or a majority of the members.104 Non-contracting parties may apply for status as cooperating non-contracting parties under procedures set by the RFMO where they agree to apply its conservation and management measures. By

99  See 01–25 ICCAT Criteria for the Allocation of Fishing Possibilities, paragraph 7, . 100  The International Commission for the Conservation of Atlantic Tunas, established under the International Convention for the Conservation of Atlantic Tunas, supra note 90. 101  Op. cit., paragraphs 4, 5, 7 and 12. 102  A. Serdy, supra note 74, 388. 103  See SPRFMO, decision 1.02 Rules for Cooperating non-Contracting Parties, ; IOTC Resolution 99/04 On the Status of Cooperating Non-Contracting Parties, ; ICCAT 03– 20 Criteria for Attaining the Status of Cooperating Non-Contracting Party, Entity or Fishing Entity in ICCAT, ; NEAFC Scheme of Control and Enforcement, Article 34< www.neafc.org/ scheme/2015/januarytojune/Chapter7>; IATTC Resolution C-07–02 Criteria for attaining the Status of Cooperating Non-Party or Fishing Entity in IATTC ; CCSBT Resolution to Establish the Status of Cooperating Non-Member of the Extended Commission and the Extended Scientific Committee, ; WCPFC Cooperating Non-Members Conservation and Management Measure 2009–11, available at ; NPFC Article 20(3). 104  See, e.g., NPFC Article 24(2); WCPFC Article 35(2), NEAFC Article 20(4).

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including all relevant states, so-called ‘unregulated fishing’ may be prevented.105 This is consistent with the specified obligation of cooperation of nonmembers under Article 8 of the Fish Stocks Agreement. The status as a cooperating non-contracting party does not automatically provide the state with participatory rights. The cooperating non-contracting parties have to qualify under the general framework of the RFMO. The clearest signals on what may realistically be expected by new entrants are set by NAFO and NEAFC.106 New entrants to their regulatory areas may realistically only access new fisheries as existing ones are fully utilized. This reflects the difference between what Serdy describes as the ‘ins’ and the ‘outs’: between those who are already involved in a fishery and the others.107 Allocation principles or considerations are included in some of the constituent treaties.108 Among the exceptions are the treaties establishing CCAMLR,109 NEAFC and ICCAT. ICCAT has adopted a resolution setting out the relevant principles.110 Its constituent treaty is under revision and may in the future include provisions on the allocation of participatory rights.111 The allocation principles are often repetitive of those included in the Fish Stocks Agreement and the list of relevant principles may not be exhaustive.112 The ICCAT 105  See definition of ‘unregulated fishing’ in FAO International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing, section 3.3.1, . 106  NAFO, 1/99 Resolution of the General Council of NAFO, adopted 17 September 1999 to guide the expectations of future new members with regard to fishing opportunities in the NAFO Regulatory Area, ; NEAFC Guidelines for the expectations of future new Contracting Parties with regard to fishing opportunities in the NEAFC Regulatory Area, . 107  A. Serdy, supra note 74, 416. 108  NAFO (2007) Article VI(12); WCPFC Article 10(3); SPRFMO Article 21(1); SIOFA Article 6(2) includes a reference to the allocation principles of the Fish Stocks Agreement; SEAFO Article 20(1); CCSBT Article 8(4). 109  Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) established under the Convention on the Conservation of Antarctic Marine Living Resources, Canberra 20 May 1980, in force 7 April 1982, 1329 UNTS 47. 110  ICCAT Resolution 01–25 ICCAT Criteria for the Allocation of Fishing Possibilities, . 111  ICCAT 12-10 Recommendation by ICCAT to establish a Working Group to develop Amendments to the ICCAT Convention, . 112  See, e.g., WCPFC Article 10(3).

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allocation criteria are the most elaborate, distinguishing between five types of criteria (including past and present fishing activities and the status of the stocks) specified through 15 principles of allocation, in addition to qualifying criteria. The last-mentioned refer to the status of a state as a member or as a cooperating non-contracting party and the ability to perform its obligations as a flag State. These principles are to be applied in a “. . . fair and equitable way . . .” to ensure fishing opportunities for qualifying participants.113 There are seldom instructions on the operationalization of the principles. The WCPFC is specifically required to transform the principles into more operational criteria.114 There are a couple of examples where the RFMO is required to revise the allocations regularly. The purpose may be to accommodate new entrants and/or to ensure that the allocation factually reflects the contributions of states to the conservation, the needs of the states or other principles of allocation.115 However, the challenge of all RFMOs is to put these principles and procedures into practice. In recent years, most of them have been subject to socalled performance reviews.116 A recurring theme of the reviews is problems relating to the allocation or rather lack of allocation of participatory rights. The review panel of the Indian Ocean Tuna Commission (IOTC) noted that the lack of a total allowable catch or equivalent and its allocation is a significant gap concerning the functions of the Commission.117 The IOTC has adopted an action plan to implement an allocation system involving its Member States and cooperating non-contracting parties.118 The non-binding ICCAT criteria were described by the review panel as quite ambiguous, causing a number of difficulties and complaints in actual application.119 The constituent treaty of NAFO (also as amended in 2007) has included principles for the allocation 113  ICCAT criteria, supra note 110, paragraphs 1 and 2. 114  WCPFC Article 10(1)(g). 115  SPRFMO Art. 21(6) and SEAFO Article 20(3). 116  See an overview of some of them in Ceo, M.; Fagnani, S.; Swan, J.; Tamada, K.; and Watanabe, H. Performance Reviews by Regional Fishery Bodies: Introduction, summaries, synthesis and best practices, Volume I: CCAMLR, CCSBT, ICCAT, IOTC, NAFO, NASCO, NEAFC. FAO Fisheries and Aquaculture Circular No. 1072. Rome, FAO. 2012. 117  Report of the IOTC Performance Review Panel, 2009 p. 33, . 118  Resolution 14/02 for the Conservation and Management of tropical Tunas Stocks in the IOTC Area of Competence, available in the Compendium of Active Conservation and Management Measures for the Indian Ocean Tuna Commission, . 119  Report of the Independent Review International Commission for the Conservation of Atlantic Tunas (ICCAT), 18, PLE-106/2008, ; M.C. Engler-Palma, supra note 3, 497.

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of participatory rights. It has not prevented disputes among members of RFMO. The NAFO review panel stresses that “. . . agreement on participatory rights, such as the allocation of fishing opportunities, is fundamentally important to the stability and effectiveness of any RFMO.” Legally binding rules should be adopted to provide a fair and transparent process. The panel realized that NAFO had not been able to develop such rules in spite of addressing the issue through separate work groups.120 Further, it acknowledged that “. . . to date, no RFMO has been able to agree on specific rules to deal with the fishing opportunity allocation issue.”121 The WCPFC with the most modern constituent treaty has not been able to put the principles into practice due to disagreements between the members.122 Its relevant conservation measures aim at restricting efforts.123 Even if the efforts are not allocated between the participants, the measures may have distributional effects. Perhaps one example of an RFMO that has been able to adopt participatory rights is the Commission on the Conservation of Southern Bluefin Tuna (CCSBT).124 CCSBT has adopted a management procedure to rebuild the stock, establishing predetermined rules for the setting and revision of the total allowable catch for the stock.125 The TAC is allocated between the participating states according to a predetermined formula.126 This includes non-contracting parties acquiring status as cooperating contracting parties, e.g. new entrants. They will be provided with fishing opportunities, but without exceeding the TAC. The formula also instructs how increases and decreases of the TAC shall be distributed among states, preventing the adjustment of TAC to accommodate a particular state. This arrangement is similar to what has been agreed for the Northeast Atlantic mackerel as discussed above. The strength of the 120  NAFO, Report of the Fisheries Commission, 2003, item 13, FC Doc. 03/19. 121   NAFO Performance Assessment Review, 2011, 22–24, . 122  M. Bailey et al., “Moving beyond catch in allocation approaches for internationally shared fish stocks”, 40 Marine Policy, (July), 129; M.C. Engler-Palma, supra note 3, 497. 123  Conservation and Management Measure For Bigeye, Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean Conservation and Management Measure 2012– 01, paragraphs 14ff, . 124  CCSBT is established under the Convention for the Conservation of Southern Bluefin Tuna (CCSBT), Canberra 10 May 1993, in force 20 May 1994, 1819 UNTS 359. 125  Resolution on the Adoption of a Management Procedure, . 126  Resolution on the Allocation of the Global Total Allowable Catch, .

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allocation arrangement is that it is disconnected from the setting of the TAC and that it contains a long-term perspective. It provides for the conservation of the stock. There is no transparency as to how the national quotas are set or how they may be revised: which principles are used, how are they operationalized and weighted? There is a risk that when the stock is rebuilt that questions may resurface on allocation of the TAC. 4.5 Assessment A general finding of the practice is the inadequate or even lack of arrangements for allocating fishing rights both on shared and common fish stocks. In some RFMOs there is no tradition for the allocation of participatory rights. The progress of developments of international fisheries law in recent years has yet to make an impact. The performance reviews commissioned where regulating access to resources is high on the agenda may change that. Most RFMOs are specifically charged with allocating participatory rights and to apply principles of allocation such as those of the Fish Stocks Agreement. Still, they are unable or ineffective in operationalizing them and use them just as guidelines in the actual allocation. There may be different reasons for this, including the character of the principles. As these principles reflect different and partly conflicting interests, it may be difficult for states to agree on their actual implementation. Where the regulated fish resources are fully exploited the question quickly turns to the preservation of the status quo. The willingness to revise a decision on allocation under these circumstances is low. This is natural as the right-holders also are the decision-makers. The right for new entrants to access a high seas fishery may become illusory. The lack of transparency on the allocation process may lead them to challenge the arrangements. Even where states have been successful in agreeing on allocation arrangements there is a lack of transparency on how the allocation is done and how the principles are used. The consequence may be short-term arrangements. Before states can resolve the issues on allocation the more fundamental challenge posed by overcapacity must be addressed. Even if states are required within the frame of the individual RFMO to prevent overcapacity this must be resolved at the global level. 5

Alternative Procedures

5.1 Introduction This analysis documents that it is highly problematic to transform the principles of allocation into viable RFMO decisions. Given their vague and nonexhaustive character, it is particularly difficult to apply them where the states

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involved represent different and often conflicting interests. They will have different views on what constitutes equitable allocation. Developments in international fisheries may facilitate a better climate for reaching agreements on allocation of participatory rights. First, the emerging limited entry rule as described by Serdy may ensure that all states involved in high seas fishing activities are included in the cooperation.127 Secondly, the specification of flag State obligations may ensure that only states having the interest and ability to contribute to sustainable fisheries will be involved in high seas fisheries.128 Thirdly, the obligation to apply the precautionary principle compels states to have a more goal-oriented and systematic approach to the conservation and management of fish stocks.129 In addition to the membership issue, other institutional aspects of the RFMOs are important, such as decision-making processes, implementation, compliance and dispute resolution. In the following, the focus will be on decision-making and dispute resolution procedures and how these may affect the allocation of participatory rights. 5.2 Decision-making Procedures Since the Fish Stocks Agreement is directed at states and not RFMOs, it provides limited instructions as to their decision-making processes. However, the states Parties are required to strengthen and improve their “effectiveness in establishing and implementing conservation measures”.130 When they cooperate on establishing new RFMOs, the states Parties are to ensure the adoption of decision-making procedures that facilitate the “timely and effective” adoption of conservation measures.131 Irrespective of new or existing RFMOs, states are required to cooperate to prevent disputes through the adoption or strengthening of decision-making procedures that are efficient and expeditious.132 These obligations reflect that the decision-making procedures of RFMOs have contributed to their inability to allocate participatory rights or the demonstrated inadequacies of such measures. RFMOs are intergovernmental organizations, normally competent under their constituent treaties to adopt decisions that are binding on their Member States.133 However, they also incorporate the sovereignty principle, meaning 127  A. Serdy, supra note 74, 389. 128  See, e.g., Fish Stocks Agreement, Article 18. 129  Fish Stocks Agreement, Article 6 and Annex II. 130  Fish Stocks Agreement, Article 13. 131  Fish Stocks Agreement, Article 10(j). 132  Fish Stocks Agreement, Article 28. 133  See, e.g., NEAFC Article 12(1).

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that decisions are not binding on the member without its consent.134 There may be a requirement of a consensus or a majority agreement among the members for the RFMO to make a decision.135 WCPFC is one of the RFMOs that is competent to adopt decisions on the allocation of participatory rights only by consensus.136 In some RFMOs members are required to make decisions by consensus and a majority vote may first be used if consensus is not reached.137 Other RFMOs are competent to adopt decisions by a simple or qualified majority.138 Where they make decisions by a majority vote, consent is presumed through tacit acceptance or ‘opting out’ procedures. Members opposing a decision are bound unless they explicitly object to it within a certain time limit.139 These decision-making procedures have consequences for the allocation of participatory rights. A requirement of consensus, particularly on contentious issues such as participatory rights, may help bring the Member States together in compromises where there are no obvious winners or losers and thereby contribute to more lasting arrangements.140 The drawback is that decisions may be stalled or the lowest common denominator is given significant influence.141 This could explain why WCPFC has not been able to adopt decisions on the allocation of participatory rights. The WCPFC Convention has attempted to rectify the weaknesses of the requirement of consensus-based decisions. If consensus on a decision is not reached, the Commission (decision-making body of the RFMO) may appoint a conciliator charged with “reconciling the differences in order to achieve consensus on the matter”.142 He or she may be able to bring a matter out of deadlock without involving traditional dispute settlement procedures. Depending

134  E. Meltzer, The Quest for Sustainable International Fisheries, (Wallingford: CABI Publishing: 2009), 187–189. 135  See, e.g., NEAFC Article 3(9); NAFO (2007) Article XIII; SEAFO Article 17; SPRFMO Article 16; WCPFC Article 20(1) and (2). 136  WCPFC Article 10(4), cf. Article 20(2), also SEAFO Article 17(1), IATTC Article IX(1), CCAMLR Article XII(1) and CCSBT Article 7. 137  NAFO (2007) Article XIII, SPRFMO Article 16(1) and (2); NPFC Article 8(1) and (2)(b). 138  NEAFC Article 5(1) cfr Article 3(9), ICCAT Article 3(3) cfr Article VIII, IOTC Article IX(1). 139  See, e.g., NEAFC Article 12; NAFO (2007) Article XIV (2); SEAFO Article 23; SPRFMO Article 17(2); WCPFC Article 20(6); NPFC Article 9(1)(c) and (e). 140  E. Meltzer, supra note 134, 192. 141  T.L. McDorman, ‘Implementing Existing Tools: Turning Words Into Actions—DecisionMaking Processes of Regional Fisheries Management Organisations (RFMOs)’, 20 International Journal of Marine and Coastal Law, Nos. 3–4, 2005, 429–430. 142  WCPFC Article 20(4).

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on the use of this procedure, the decision-making process may comply with the timely and effectiveness requirements. Where members exercise their right to opt out of a decision they have opposed, it may not be effectively implemented. If they unilaterally set their own national quotas, the adopted TAC may be exceeded with negative consequences for the fish stock and its ecosystem. Members of new and existing RFMOs where decisions are made by a majority vote still have a right to object to the decisions. The decision-making procedures of some existing RFMOs have been revised and new RFMOs have adopted procedures (NAFO, NEAFC, NPFC,143 SEAFO and SPRFMO144) where the right to object is qualified.145 Members are required to articulate their reasons for objecting. The legitimate reasons are specified. They may include the inconsistency of the decision with the constituent treaty, UNCLOS or the Fish Stocks Agreement or that the decision unjustifiably discriminates in form or in fact against the objecting member. The member is also required to indicate the alternative measures it plans to take following its objection. These measures must be consistent with the objective of the RFMO. Meltzer146 correctly describes this revised procedure as a “reversal of the onus to justify the objection”. Under the traditional opt out procedures members are not required to reason their decision or to indicate their alternative measures. This reversal may have a constraining effect as members have to openly question the legal validity of the decision taken by the majority of the Member States.147 Their right to set alternative measures is not 143  NPFC—North Pacific Fisheries Commission, established under the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific, supra note 92. 144  SPRFMO—South Pacific Regional Fisheries Management Organisation established under the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Auckland 14 November 2009, in force 24 August 2012, UNTS Reg. No. 50553. 145  NAFO (2007) Article XIV(5), SPRFMO Article 17(2), SEAFO Article 23(1)(d). The revised objection procedure is also introduced to NEAFC through a 2004 EU proposal to a “NEAFC recommendation concerning the procedures of Article 12 and Article 13 of the NEAFC”, which has to be read in context of its proposal to amend the NEAFC Convention to include dispute settlement procedures (Article 18bis) and to adopt a “Recommendation establishing procedures for the settlement of disputes” (not yet in force), NEAFC Report of the 23rd Annual Meeting 8–12 November 2004 Item 12 and Annex K, ; NPFC Article 9(1) (c) and (e). 146  E. Meltzer, supra note 134, 194. 147  Howard Schiffman, ‘The South Pacific Regional Fisheries Management Organization (SPRFMO): an improved model of decision-making for fisheries conservation?’ 3 Journal of Environmental Studies and Sciences, No. 2, 2013, 212.

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unlimited. Further, other members using dispute settlement procedures may challenge the validity of the reasoned objection and/or alternative measure. In addition to qualifying the right to opt out of decisions such as conservation measures and the distribution of participatory rights, the constituent treaties of these RFMOs include procedures for resolving such situations.148 They are normally two-phased: the first phase concerns the implementation of the RFMO decisions whereas the second involves the use of dispute settlement procedures. The NEAFC ad hoc panel will be charged with resolving the dispute arising from the use of the objection right and/or the alternative measure to be applied. 149 According to Meltzer, the opt out procedures are150 “. . . evolving into a procedural step in the formulation of management measures.” The first phase involves the establishment of an ad hoc panel (NAFO and SEAFO), a review panel (SPRFMO) or the involvement of the RFMO (NPFC) with the purpose to resolve the situation caused by one or more members using the right to object. The procedure may be initiated automatically or it may have to be invoked by the objecting member, another member or the RFMO itself.151 The rules on the establishment and functioning of the panels are specified in the constituent treaties of NAFO and SPRFMO.152 The rules of procedure for the ad hoc panels of SEAFO are to be decided by the RFMOs themselves.153 The task of the NAFO and SPRFMO panels is to review the explanations and 148  NAFO, NEAFC, SPRFMO and SEAFO. 149  The NEAFC procedures are categorized as dispute settlement procedures, see NEAFC Recommendation establishing procedures for the settlement of disputes, supra note 145. There are no specific procedures for addressing situations where one or more of the members have used the right to object. However, the statement of reason and/or declaration of intention given by the member at the time of objection may provide for a dispute on the application of the NEAFC Convention or the interpretation or application of a recommendation adopted by the RFMO and the establishment of an ad hoc panel, see NEAFC procedures for the settlement of disputes paragraph 3. 150  E. Meltzer, supra note 134, 188. 151  The SPRFMO review panel is to be established automatically, SPRFMO Article 17(5) whereas the NAFO ad hoc panel may either be established on the request of the objecting member or the Commission (RFMO) by a simple majority, NAFO (2007) Article XIV (7) and (8). The SEAFO ad hoc panels may be established on the request of any member, SEAFO Article 23(1)(g) and NEAFC Recommendation establishing procedures for the settlement of disputes paragraphs 2 and 3. The NPFC is required to convene a meeting following the submission of an objection, Article 9(1)(g)–(j). 152  SPRFMO Annex II Review Panel and NAFO (2007) Annex II to the Convention—Rules concerning the ad hoc panel procedure pursuant to Article XV. 153  NEAFC recommendation, supra note 145, paragraph 3 and SEAFO Article 24(3).

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alternative measures submitted by the objecting member.154 It should be noted that the SEAFO ad hoc panel is not tasked with resolving the situation. It is to recommend the application of temporary measures until the RFMO has reviewed the disputed measures.155 The North Pacific Fisheries Commission (NPFC), supplemented by experts from non-members, shall decide whether the objection is justified and/or the alternative measures have equivalent effects to the original decision.156 The timeframe of the work of the NAFO and SPRFMO panels is regulated in detail. The SPRFMO review panel is required to submit its findings and recommendations to the RFMO within 45 days of its establishment.157 The description of the conclusions of the ad hoc panels as recommendations suggests that they are not legally binding. However, the procedures of the NAFO and SPRFMO panels indicate that this is not necessarily so. Their recommendations imply clear instructions to the parties and the RFMOs and may even have an effect on the legal status of the objections.158 NAFO is required to consider the recommendations of the panel.159 It may be difficult to confirm a decision, which the panel recommends be revised. The rules on the recommendations of the SPRFMO review panel provide more detailed information on the status of the objection and the alternative measures to be applied by the Member State. The SPRFMO review panel may find in favour of the objecting member when the disputed decision discriminated against the objecting member and the alternative measure was not consistent with the decision. In such a case, the Member State is entitled and obligated to apply an alternative measure.160 The review panel may recommend modifications of the alternative measure or new alternative measures to ensure consistency with the objectives of the disputed decision.161 Then the objecting member has to apply these or submit the case before the dispute settlement procedures. Where the review panel finds that the decision is inconsistent with UNCLOS, the Fish Stocks Agreement or the constituent treaty, the RFMO is required to reconsider it.162 When the RFMO confirms the disputed decision the 154  NAFO (2007) Article XIV(10) and Annex II, paragraph 7 and SPRFMO Article 17(5)(e) Annex II, paragraph 10. 155  SEAFO Article 23(1)(f) and (g). 156  NPFC Article 9(1)(h). 157  SPRFMO Article 17(5)(e). 158  NAFO (2007) Article XIV (10)(a) and (b), SPRFMO Annex II, paragraph 10 on findings of discrimination, of inconsistency or non-justification of objection. 159  NAFO (2007) Article XIV(11). 160  SPRFMO Annex II, paragraph 10(a). 161  SPRFMO Annex II, paragraph 10(b) and (c). 162  SPRFMO Annex II, paragraph 10(f).

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objecting party may institute the dispute settlement procedures.163 These procedures may also be invoked where the review panel finds the objection unjustified. The alternative measure becomes binding on the objecting member if NPFC finds in favour of it. If the NPFC is not convinced by the reasons or finds that the measures are not equivalent in effect with the original decision, the initiative is on the objecting member. It may either submit a new alternative measure, accept the original decision, or institute dispute settlement procedures. A SPRFMO review panel was established in 2013 following the objection of the Russian Federation to the conservation and management measures for Chilean jack mackerel.164 Russia argued that the allocation of the total allowable catch between the Member States constituted unjustified discrimination against Russia and was inconsistent with the Convention. Russia was not allocated any national quota for the stock in 2013. It was argued that the RFMO had not considered the historical catches of Russia when allocating the total allowable catch. Russia established an alternative quota for Russian vessels for 2013.165 The review panel found that Russia had been unjustifiably discriminated against by the decision on the allocation of the total allowable catch.166 However, the national quota set by Russia was not consistent with the total allowable catch set by the RFMO for the stock. The review panel therefore used its right to recommend a new alternative measure: Russia could license its vessels to fish if it was likely that the total allowable catch would not be caught and that it would be required to stop fishing were the total allowable catch reached. The background for not allocating a quota to Russia was questions concerning the reliability of the catch data provided by the Russian Federation. The data included catches from the Lafayette, which reportedly was a fish process-

163  SPRFMO Annex II, paragraph 10(c) and (f). 164  CMM 1.01 Conservation and Management Measure for Trachurus murphyi, . 165  Russian objection of 19 April 2013 to CMM 1.01, . 166  The Review Panel established under Article 17 and Annex II of the Convention on the Conservation and Management of High Seas Fishery Resources in The South Pacific Ocean with regard to the Objection by the Russian Federation to a Decision of the Commission of the South Pacific Regional Fisheries Management, Findings and Recommendations of the Review Panel, 5 July 2014, The Hague, paragraph 100, .

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ing vessel and not capable of undertaking fishing itself.167 What constituted unjustified discrimination was probably that the decision did not recognise that Russia—regardless of the Lafayette case—had a record of fishing for the stock.168 Russia has subsequently been allocated a quota for the stock.169 5.3 Dispute Settlement Procedures Traditionally, the constituent treaties of RFMOs have not included dispute settlement procedures. This has complicated the handling of disputes. The dispute settlement procedures of UNCLOS are made applicable through the Fish Stocks Agreement between its parties regarding disputes on the interpretation or application of the constituent treaties of RFMOs to which they are parties and are competent to regulate straddling and highly migratory fish stocks.170 This includes compulsory dispute settlement before an international court or tribunal competent to render a binding decision on the dispute. Similarly nonmembers which are parties to the Fish Stocks Agreement may invoke these dispute settlement procedures regarding disputes with other parties that are member states of RFMOs over its interpretation or application.171 Both new and existing RFMOs have included dispute settlement procedures in their constituent treaties.172 Thereby, the procedures will include disputes on stocks not regulated through the Fish Stocks Agreement (e.g. discrete high seas fish stocks) and members that are not party to the Fish Stocks Agreement. They either set out their own procedures or incorporate the procedures of the Fish Stocks Agreement or UNCLOS Part XV. Their procedures entitle the members to bring the recommendations of ad hoc panels on objections and alternative measures before the dispute settlement procedures of the RFMO.

167  Supra note, section III, paras. 25–47. 168  Supra note, section VII, paragraph 92. 169  CMM 2.01 Conservation and management measures for Trachurus murphyi, . 170  Fish Stocks Agreement, Article 30(2). 171  Fish Stocks Agreement, Article 30(1). 172  NAFO (2007) Article XIV, IATTC Article XXV, CCAMLR Article XXV, CCSBT Article 16, ICCAT Article 25 and Article 26, IOTC Article XXVIII, NEAFC Article 18bis (not in force) and Proposal to a NEAFC Recommendation establishing procedures for the settlement of disputes, Report of the 23rd Annual Meeting of the North-East Atlantic Fisheries Commission, item 12 and Annex K, , SEAFO Article 24, SIOFA Article 20, SPRFMO Article 34, WCPFC Article 31; NPFC Article 19 and Annex (disputes involving fishing entities).

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Not all RFMO dispute settlement procedures are compulsory or include binding resolution of disputes.173 However, it may be argued that the compulsory dispute settlement procedures of the Fish Stocks Agreement still be applicable in disputes between members of such RFMOs that are parties to the said agreement. An important restriction on the use of dispute settlement procedures under Part XV of the UNCLOS is reiterated in the Fish Stocks Agreement.174 UNCLOS Article 297(3) is applicable to the Agreement. It means that the compulsory dispute settlement procedures are not applicable to disputes regarding the interpretation of the Fish Stocks Agreement or a constituent treaty of an RFMO over the conservation of living marine resources within the EEZ of a coastal State. For example, it is doubtful whether a dispute between coastal States and states fishing on the high seas over whether measures are compatible under the Fish Stocks Agreement or a constituent treaty of an RFMO may be submitted to binding dispute settlements.175 Such disputes will inevitably affect measures adopted or not adopted by a coastal State. Importantly, the dispute settlement procedures as prescribed in the Fish Stocks Agreement Part VIII include alternative resolution. Disputes of a socalled ‘technical nature’ may be referred to an ad hoc panel.176 The task of the panel, established by the parties, is to consult in order to resolve the dispute without the use of the compulsory procedures. The description of the dispute suggests that it is not of a legal character. There is some urgency in resolving disputes regarding the allocation of a total allowable catch or another type of participatory right. The parties do not have to formulate their disagreement as a legal dispute. The use of an ad hoc panel may provide for a more expeditious resolution. Some of the RFMOs have included the use of ad hoc panels in their dispute settlement procedures as an alternative to traditional compulsory and binding dispute settlements. The procedures under the 2007 NAFO Convention provide for the use of ad hoc panels in disputes regarding decisions of the RFMO on conservation and management measures and the allocation of participa173  IATTC Article XXV (2), CCAMLR Article XXV (2), CCSBT Article 16(2), IOTC Article XXVIII. 174  Fish Stocks Agreement, Article 32. 175  See the discussion of Fish Stocks Agreement on the implication of Article 7(4) in Alan Boyle, “Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks”, 14 The International Journal of Marine and Coastal Law, No. 1, 1999, 21–22. 176  Fish Stocks Agreement, Article 29.

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tory rights or disputes regarding an objection.177 The relevant members may agree to use an ad hoc panel and may refer the dispute to compulsory dispute resolution if the dispute is not resolved by the use of the ad hoc panel. 5.4 Assessment The decision-making procedures of RFMOs are important for their capability to make decisions on the allocation and accommodation of new entrants (members or non-members). Their procedures are reflective of state sovereignty: decisions are mainly to be taken by consensus or unanimity. Where a majority makes decisions, states are entitled to opt out. This has not been changed by the development of international fisheries law in recent years. Only a few of the RFMOs have developed procedures answering the call for more effective and timely decision-making. These alternative decision-making procedures are coupled with the dispute settlement procedures. Dispute settlement procedures may be initiated if the matter is not resolved through the decision-making procedures. Thus, they may function as a pressure on the states to resolve their differences at an earlier stage. The alternative decision-making procedures are to prevent or resolve the deadlock created by the lack of consensus or the use of the opt out right. Questions may be raised on the effectiveness of using conciliation where the required consensus is not reached. Conciliation may resolve a critical situation. But will any decision be lasting? If members are pressured to yield on their position in order to ensure consensus they may later try to have the decision revised. A requirement to raise an objection on the basis of discrimination or another inconsistency with relevant international law may raise the threshold for using the right. Further, the additional requirement to set alternative measures signals that the use of the opt out right does not relieve the member of obligations. The qualified opt out right could facilitate a review of the decision and consequently address the issue of how participatory rights are decided within the RFMO. However, the role of the ad hoc or review panels is restricted to assess the individual case. It is left to the RFMO to decide on how to deal with situations where a panel has concluded that a decision on allocation is inconsistent with relevant law. The SPRFMO review panel found that the RFMO had not adequately taken into consideration the history of Russian fishing activity in the regulatory area. It did not provide any directives on how the fishing activities should be transformed into shares of the total allowable catch. This is still to be decided by the RFMO. The alternative procedures therefore have limited impact in resolving the allocation issues. 177  NAFO (2007) Article XV(3) and (6).

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6 Conclusions Conservation and allocation is interdependent. Not maintaining fish stocks at a sustainable level will reduce access to the marine resources. Inadequate or lack of regulation of access to and allocation of participatory rights will threaten fish stocks. The development of principles of allocation is intended to make the process more transparent and ensure agreement on allocation. The equity rule as particularly developed through freshwater law suggests that this can be achieved. The vague character of the rule and of the principles of allocation identified in international fisheries law, however, do not provide any clear directions, which is evidenced in the practice assessed through this paper. The equity rule may still assist in clarifying the basis and frame for the participation of states in the fisheries. Even if some RFMOs have introduced alternative procedures to handle situations where states disagree on allocation, the decision will ultimately be a political one where the discretion will be limited by the requirements of non-discrimination and equity. It does not seem realistic that states enter into agreements where allocation principles are transformed into quantified shares of the total allowable catch and attributed to members and cooperating non-members. However, there should be mechan­ isms for addressing newcomer issues and revision of allocations. Allocation will remain a contentious issue and a threat to conservation of shared and common fish stocks. The viability of the regimes also hinges on the compliance and control of states, e.g., through mechanisms to combat IUU fishing both at sea and in ports. Unresolved issues regarding allocation will likely continue to pose a threat to fish stocks.

CHAPTER 23

Managing Shared Migratory Stocks: The Case of the Atlantic Mackerel Rögnvaldur Hannesson1 Abstract The establishment of the 200-nm Exclusive Economic Zone (EEZ) was a sea change in fisheries management, as it limited the number of nations with access rights to fish stocks, except for what remains of the high seas. In cases where a fish stock migrates between the EEZs of two or more countries they must agree among themselves if management is to be effective. In many cases such agreements have been established and appear reasonably effective over time. Stocks that migrate far and wide are the exception, especially if they change their migration habits. The paper examines the case of the Northeast mackerel stock. Recently, the cooperation on management of this stock broke down because it began to appear in the Icelandic EEZ. A game-theoretic model of the fishery is formulated, with the EU, Norway, Denmark (the Faeroe Islands), Iceland, and the international fishery as players. The Nash-Cournot equilibrium of this game is examined and found to imply an extreme and potentially devastating overfishing of the stock. Yet the actual amounts caught in recent years by the various parties seem moderate by comparison. It is hypothesized that the parties engage in a quasi-cooperation despite their rhetoric, triggered probably by the common ruin that would result from the Nash-Cournot solution. Another major finding is that the cause of the change in migrations would have a major impact on what kind of negotiated solution could emerge in this fishery. If the migrations towards Iceland (and partly the Faeroe Islands as well) depend on the size of the mackerel stock, the other parties can keep Iceland out of the fishery by fishing down the mackerel stock as needed. If on the other hand the migrations of the stock are random, Iceland and the Faeroe Islands would have to be enticed into cooperation with the EU and Norway through side payments such as access rights to the Norwegian and the EU zones.

1  Professor Emeritus, Norwegian School of Economics, Bergen, Norway. E-mail: rognvaldur. [email protected]. The author’s PowerPoint is available at http://www.virginia.edu/colp/ pdf/bergen-hannesson.pdf.

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1 Introduction The establishment of the 200-nm EEZ in the late 1970s was a sea change, literally and metaphorically. Before that time, most fish stocks were accessible on the high seas, and effective management typically would have required the cooperation of several and often even a large number of countries. Furthermore, the number of nations required for cooperation was indeterminate, because any nation could fish on the high seas. A successful management by countries that used to fish a certain stock would have invited outsiders to share in the spoils and thus undermined any successful agreement. The EEZ changed this. In some cases it established national ownership to fish stocks contained within a single nation’s EEZ. In other cases it defined the number of nations with a legitimate interest in a stock by virtue of the number of EEZs between which a stock migrated. But there are important exceptions; some stocks migrate into what is left of the high seas and are accessible therefore to any nation. In this case, the cooperation of an indeterminate number of nations is required for effective management. In some cases the successful cooperation on management of fish stocks migrating between the EEZs of two or more nations has been established. One such example is the management of the Northeast Arctic cod, shared between Norway and Russia, with a small share of the total going to third countries. But in other cases in the Northeast Atlantic area cooperation has been less successful as it has formally broken down for certain periods. This has been the case for the Norwegian spring spawning herring and, most recently, for mackerel. There are two obvious reasons why management cooperation has been more difficult for the herring and the mackerel than for the cod. First, there are more nations involved in the herring and mackerel fisheries than in the cod fishery. The Northeast Arctic cod is confined to the EEZs of Russia and Norway while the herring and mackerel migrate between the EEZs of Norway, Iceland, the Faeroe Islands and the EU (for fisheries management issues, the EU can be regarded as a “country”, because of the common fisheries policy). In addition, both stocks can be found at times in the high seas area between Norway, Iceland, the Faeroe Islands and Greenland. As more participants are required for cooperation, management cooperation presumably becomes more difficult to establish. Second, the migrations of the herring and the mackerel are much more variable than those of the cod. The distribution of the cod between the zones of Russia and Norway does vary from year to year, but nevertheless the total catch quota has been shared evenly between the two countries since their joint

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management began in 1977. The changes in migration of the herring and the mackerel have been much more dramatic. After the collapse of the herring stock around 1970 it became confined to the Norwegian zone, and after its recovery in the 1980s it never resumed its migrations into the Icelandic zone on the pre-collapse scale. When the expected migration pattern did not quite materialize the cooperation between Norway and Iceland broke down temporarily. But the biggest surprise was the sudden appearance of the mackerel in the Icelandic zone in large quantities from 2007 onwards.2 Before that time mackerel had not been caught in appreciable quantities in the Icelandic zone, but after it turned up there the Icelanders considered themselves entitled to a larger share of the total catch than the EU and Norway, which for many years had cooperated on managing the mackerel, were prepared to give them. This second reason—changing migratory habits—is the more likely one to have caused the disagreements regarding the herring and, in particular, the mackerel. Radical changes in migrations, or stock distribution, between the EEZs of different countries will change the claims different nations make to shares of the total catch. A country in whose waters there is suddenly more of a certain fish stock will be able to take more fish irrespective of what others do and will therefore have to be offered a bigger share of a cooperative total quota in order to find cooperation attractive. Furthermore, changes in stock migrations can bring entirely new claimants into the picture, such as Iceland in the mackerel case. Accommodating new claimants is likely to be more difficult than adjusting the shares of already recognized claimants. 2

A Game Theory Approach to the Mackerel Conflict

Game theory is a branch of economic theory that studies the interaction between a few individuals or firms that compete with one another in a market or in exploiting a common resource. If firm A increases its sales of a commodity that firm B also sells in the same market it will drive down the price and thus affect not only its own profit but also firm B’s profit. Both firms would do well to consider the implications of their actions for the other firm and how the latter will react. Similarly, country A that catches fish from the same stock 2  The reader may note that Figure 1 shows no catches taken by Iceland in 2007. The figure is based on landings statistics from the FAO which, curiously, shows no Icelandic catches in 2007. According to the Icelandic landings statistics, Iceland caught about 37,000 tonnes of mackerel in 2007.

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as country B will affect not only its own future prospects but also the prospects of country B, because its fishing will affect the growth and reproduction of the stock. Each country would do well to consider how its actions will affect the other country, or countries, and how its competitors will react to its actions. Game theory would seem to be the indispensable tool to analyze situations such as the mackerel conflict and other disputes over shared fish stocks. In the remainder of this paper I shall discuss an application of game theory to the ongoing mackerel conflict. What outcome does it predict and how does it compare with what has actually happened? The basic question studied in this application is what does it take to establish cooperation on the management of the mackerel stock? More precisely, what catch quotas must be offered to the individual countries participating in the mackerel fishery to realize a cooperative solution? It is commonplace in a situation such as the one regarding the mackerel fishery that if each participating country pursues its own interest, then all countries will in sum catch more fish than they would do if they cooperated and maximized the sum of their individual benefits. Hence, in the end they will collectively harm themselves by not cooperating. The challenge is, however, to find a division of catch quotas, or benefits, which will entice them to cooperate rather than engage in a destructive uncooperative behavior. This sometimes turns out to be easier said than done. The key to establish cooperation is the realization that it will not happen unless it gives each country at least as good an outcome as it would get if it did not cooperate; otherwise, cooperation would be pointless. Hence, the approach taken by game theory is to find out what Country A will do if Country B does such and such and vice-versa. It then looks for a mutually consistent solution; that is, one where Country A’s assumption about what Country B will do is in fact Country B’s best response to what Country A does. This approach may appear neat and unassailable, but the problem is that it often predicts extremely aggressive non-cooperative strategies, to the point of countries destroying the basis of their own fisheries through overfishing. This would, for example, be the outcome in the mackerel fishery if the cost per weight unit of fish is independent of the stock size (catch per unit of effort independent of stock size). If the cost per weight unit of fish goes up when the stock is depleted (catch per unit of effort depends on stock size) it becomes uneconomical to deplete the stock beyond a certain critical level and the uncooperative solution becomes less aggressive, but in the mackerel case it is still aggressive enough, as we shall see.

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The Mackerel Fishery

The Atlantic mackerel migrates far and wide. It spawns west of the British Isles and even farther south. After spawning it migrates north into the waters of the Faeroe Islands and Norway and into the North Sea. In recent years it has even migrated into Icelandic waters and farther north in Norwegian waters than it used to; it has even been found in the Barents Sea. Figure 23.1 shows the share of mackerel catches taken by each country since 1980. The catch share of the EU has declined substantially over this period while the shares taken by Norway and Russia have increased. Then, in 2008, Iceland emerged as a serious player due to the sudden appearance of the mackerel in the Icelandic EEZ. The emergence of the mackerel stock in the Icelandic zone upended the agreement on the mackerel fishery that the EU and Norway had established, and which the Faeroe Islands later joined. Iceland set its own catch quota for mackerel in its EEZ which surpassed the amount the other three parties were willing to offer. Subsequent negotiations did not result in an agreement, until in March 2014 when the three previous partners, the EU, Norway and the Faeroe Islands, agreed on a common quota and its distribution, with Iceland still going its own way. What caused the change in the migrations of the mackerel? Figure 23.2 shows the estimated size of the mackerel stock 1972–2012. It is tempting to

FIGURE 23.1

Shares of catches of mackerel caught in the Northeast Atlantic 1980–2012 by the parties involved. SOURCE: FAO FISHSTAT DATABASE.

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FIGURE 23.2

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Estimated size of the stock of the Northeast Atlantic mackerel. SOURCE: ICES WGWIDE REPORT 2013, TABLE 2.6.2.2. INTERNATIONAL COUNCIL FOR THE EXPLORATION OF THE SEA, COPENHAGEN.

hypothesize that the recent increase in the stock size prompted the wider migration; a larger stock presumably ranges farther and wider than a smaller one in search for food. But how does one reconcile that with the fact that the stock was just as large back in the 1970s as it has been in recent years, without any migrations to Iceland at that time? In the 1970s there was a separate stock in the North Sea, which is believed to be extinct; the present mackerel catches in the North Sea are from the stock that spawns west of the British Isles and migrates into the North Sea in summer and autumn.3 There are other plausible ideas about what may have caused the changes in the mackerel migrations.4 One is that a permanent change in ocean climate has taken place and that the mackerel has changed its migrations accordingly. Yet another is that this change in ocean climate is just temporary and may be expected to occur from time to time, which would make the mackerel migrations to Icelandic waters a random event; not necessarily from year to year but for recurring periods of several years in a sequence. The implications of two of the said hypotheses will be examined below: (i) the stock-size dependent migration and (ii) random migrations.

3  On this, see Iversen (2002). 4  See Astthorsson et al. (2012).

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Let’s begin with the hypothesis that the migration of mackerel to Iceland each year is random. This is modeled such that the quarterly distribution of the stock between different EEZs is one of those that actually occurred in the period 1977–2011, all of which are considered equally likely (for details, see Hannesson, 2014). Then, what does game theory tell us could have been the result of the cooperation on the mackerel breaking down? There are, as already hinted, four major players in the mackerel fishery: the EU, Norway, the Faeroe Islands, and Iceland. To this, for the sake of completeness, we add the fishery on the high seas between Norway, Iceland and Greenland (the international fishery). This fishery comes under the mandate of the Northeast Atlantic Fishery Commission (NEAFC) and is mainly conducted by Russian vessels. Under the previous cooperative arrangement the three parties set aside a certain amount of the overall mackerel quota for the high seas area, which was then allocated by NEAFC. In keeping with how events in the mackerel fishery evolved, we assume, first, that Iceland acts uncooperatively while the others continue their cooperation. This is, in Figure 23.3, labeled as “Iceland deviates” (from cooperation), even if Iceland never was a part of the cooperative agreement. Then, the Faeroe Islands also deviate. No appreciable time lag is supposed to be between Iceland’s decision to go its own way and the Faeroese decision to do likewise; rather this is meant to show the immediate Faeroese unilateral response to Iceland’s unilateral action. The EU and Norway continue their cooperation. But these

FIGURE 23.3

Rent accruing to the different players in the mackerel fishery when the migrations of the stock are random.

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two could also abandon cooperation. In Figure 23.3 a third outcome is with Norway also abandoning cooperation, and finally there is the total breakdown of cooperation. Note that in obtaining these solutions, each party is supposed to adjust its actions to what the others do; that is, if the Faeroe Islands break out of the cooperation, Iceland would adjust its fishing to this fact, and similarly, if Norway also breaks out of the cooperation, Iceland and the Faeroe Islands would adjust their fishing to this. Hence, in all the cases in Figure 23.3 we are looking at mutually consistent solutions. All these solutions start with the same given initial situation—the size and the distribution of the stock as it was at the beginning of 2011. What the individual countries choose is the fishing mortality to be applied in their own EEZ, with this fishing mortality being maintained indefinitely. The future size of the stock is determined by the fishing mortality applied by the different countries and a constant annual recruitment of fish. Figure 23.3 shows the rent accruing to the various players in the mackerel fishery under the four different strategies mentioned above. The “rent” is the difference between a constant price of fish and a stock-dependent unit cost of fish that actually produces a rather high rent (about 80 percent of the catch value), but which would be consistent with the previous management of the mackerel fishery trying to maximize this rent. That the rent is high is a consequence of the fact that the fishing mortality in the mackerel fishery during the period of cooperative management was well below what would have produced the maximum sustainable yield in this fishery (for further details, see Hannesson, 2014). There is one disturbing feature about the results in Figure 23.3: both the Faeroe Islands and Iceland do somewhat better in the absence of any cooperation than they would do under cooperation. This is due to the assumption that each player would fish in its own EEZ with the fishing mortality that maximizes the aggregate rent. But the resulting payoff is too small to entice each of these two small players to cooperate. To achieve this, these two players would have to be offered benefits in addition to what they would get from fishing in their own zone with the optimal fishing mortality, such as an extra catch quota in other members’ zones. This is an illustration of an outcome that often emerges in game theoretic settings with players of unequal size; in order to find cooperation attractive the small players need to be offered a share of the cooperative solution that appears disproportionate to their size and importance. The bargaining strength of small players can be disproportionately large. But other outcomes are possible. As already mentioned, the mackerel appeared in the Icelandic zone when the stock had become unusually large. When this first happened in 2007 the mackerel stock had surpassed 3.5 million

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tonnes, after having hovered around 3 million tonnes for many years. Since then it has increased further. As already mentioned, it could be the case that the mackerel only appears in the Icelandic zone if it exceeds some critical level. We model this as follows. If the mackerel stock exceeds 3.5 million tonnes its distribution between national EEZs will be as in 2011 when 25 percent of the catches in the third quarter were taken in the Icelandic zone. Otherwise, the distribution of the stock, assumed to be identical to the distribution of catches, is assumed to be as in 1998 when no catches were made in the Icelandic zone and relatively little in the Faeroese zone. The results are shown in Figure 23.4 for the same constellation of strategies and players as with random migrations (Figure 23.3). They are radically different from the previous ones. The small players, Iceland and the Faeroe Islands, fare much worse in this case than when migrations are random. The reason is that in the absence of cooperation the players will overfish the stock heavily, few fish will survive to old age, and the stock will be much smaller than in the cooperative solution. The stock will seldom be large enough to migrate into the Icelandic EEZ, so by being uncooperative and inducing general noncooperation, Iceland would undermine its own existence as a participant in the mackerel fishery. Put differently, there is in this scenario a simple retaliation strategy for the other partners; fish the stock so heavily that it never exceeds the critical size at which it begins to migrate into the Icelandic zone. When recruitment to the stock is partly governed by random effects this will not always

FIGURE 23.4

Rent accruing to the different players in the mackerel fishery when the migrations of the stock depend on its size.

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succeed, but still the others could manage to push Iceland into the role of a very marginal player. 4

What Has in Fact Happened?

As already stated, the decision variable applied by the nations involved in the mackerel fishery is the fishing mortality applied within each party’s zone. While cooperation is likely to involve mutual fishing rights in other parties’ zone, such rights are unlikely to be granted in the absence of cooperation. This is what in fact has happened; while the EU and Norway cooperated on managing the mackerel they granted each other mutual access rights to each other’s EEZ. When Iceland refused to cooperate Icelandic boats were denied landing their catches in Norway and the EU, let alone access to these parties’ EEZ. Fishing mortality as a decision variable can be thought of as in fact setting a catch quota within a country’s EEZ; any given catch quota of fish corresponds to a certain fishing mortality for the stock within the country’s EEZ. Looking more closely at the non-cooperative strategies, the most striking thing about them is how aggressive they are. Iceland would apply a very high fishing mortality in its zone, catching about a million tonnes of mackerel in the first year, while in later years the catches would fall because of overexploitation of the stock. If the other parties go for the uncooperative solution, which would be their best response to the aggressive fishing by Iceland, they would also apply a very high fishing mortality, resulting in very large catches for all of them in the first year. But this would decimate the stock severely and the catches in subsequent years would be much smaller. Fortunately, nothing remotely like this has happened. The Icelanders have unilaterally set a catch quota for their own EEZ. Their catches of mackerel have been 100–150 thousand tonnes since 2008 (see Table 23.1). Similarly, the catches taken by the other parties have been similarly moderate compared with an uncooperative solution with “no holds barred,” 500–800 thousand tonnes in total (Table 23.1). That the approach to the mackerel fishery has been relatively cautious, despite the breakdown of cooperation, is illustrated by Figure 23.5, which shows the size of the mackerel stock since 2000, how much has been caught, and the fraction of the stock caught each year (C/S). It turns out that the exploitation rate has been appreciably lower since 2007 than it was in the first five years of this century, the heyday of cooperation in the management of the mackerel fishery. Even if the exploitation rate has risen slightly since its

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TABLE 23.1 Catches of mackerel (tonnes) in the Northeast Atlantic 2007–12 by Iceland and other nations. Source: Hafrannsóknastofnun, Reykjavík, “Nytjastofnar sjávar 2012/13 og aflahorfur 2013/14,” Table 3.24.1.

2007 2008 2009 2010 2011 2012a

Iceland

Others

Total

Advised TAC (‘000 tonnes)

36518 112837 116101 122031 158635 149282

542861 498226 618778 747420 780184 780718

579379 611063 734889 869451 938819 930000

390–509 349–456 443–578 527–572 529–672 586–639

a Provisional figures.

FIGURE 23.5

Stock and catches of mackerel in the Northeast Atlantic 2000–2012. Sources: ICES, WGWIDE Report 2013, Table 2.6.2.1 (stock) and Hafrannsóknastofnun, Reykjavík, “Nytjastofnar sjávar 2012/13 og aflahorfur 2013/14,” Table 3.24.1 (catches).

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low point in 2006 it is difficult to conclude that the parties’ approach to the mackerel fishery is in any way “unsustainable”; the stock has increased ever since 2004 and has remained between 4 and 5 million tonnes since 2009. This is very likely due to advantageous oceanographic conditions, so that under different conditions the catches taken in recent years could have depleted the stock, but as things stand currently overexploitation is certainly not apparent. While it is true that fisheries biologists through ICES have recommended much smaller catches and lower fishing mortality, the stock appears to be able to sustain a higher fishing mortality. It appears that the fishing mortality recommended by fisheries biologists (0.20–0.22) is well below the mortality that would result in maximum sustainable yield, which seems close to 0.6 (Hannesson, 2014). Hence, to sum up, it seems that the strategies applied by the parties to the mackerel dispute are a lot more cautious than both game theory and their rhetoric would lead us to believe. The reason why the parties tread cautiously most likely is the awareness that aggressive strategies would invite a similarly aggressive retaliation, which game theory predicts, and destroy their prospects in the mackerel fishery for many years to come. Indeed, one is tempted to describe this as a tacit cooperation (to a degree), based on mutually assured destruction otherwise. It is a little bit like the nuclear bomb keeping the Cold War cold. References Astthorsson, O.S., H. Valdimarsson, A. Gudmundsdottir, and G.J. Oskarsson, “Climaterelated variations in the occurrence and distribution of mackerel (Scomber scombrus) in Icelandic waters” ICES Journal of Marine Science 2012; 69(7): 1289–1297. Hannesson, R. (2014). “Does threat of mutually assured destruction produce quasicooperation in the mackerel fishery?” Marine Policy 44: 342–350. Iversen, S.A. (2002). “Changes in the perception of the migration pattern of Northeast Atlantic mackerel during the last 100 years” ICES Marine Science Symposia 215: 382–390.

Part 7 Related Law of the Sea Issues

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CHAPTER 24

UNCLOS Dispute Settlement Regime and Arctic Legal Issues Robert Beckman* Abstract It is generally agreed that the 1982 United Nations Convention on the Law of the Sea (UNCLOS) establishes the basic legal framework for all uses of the oceans, including those in the Arctic Ocean. An important feature of UNCLOS is that most disputes between States Parties on the interpretation or application of the Convention are subject to the compulsory procedures entailing binding decisions in section 2 of Part XV. Although States with special interests in the Arctic have been working extremely well together to establish cooperative regimes for ocean activities in the Arctic, disputes could still arise on how some provisions in UNCLOS apply to activities in the Arctic. This paper examines the applicability of UNCLOS dispute settlement mechanisms to legal issues in the Arctic. For that purpose, the paper is structured as follows. First, it presents an introduction to Part XV of UNCLOS on settlement of disputes. Second, it outlines several legal issues in the Arctic, which could give rise to disputes between States Parties and may be subject to the dispute settlement mechanisms under UNCLOS, including straight baselines and internal water claims, passage regime in the territorial sea, passage rights through the Northwest Passage and Northern Sea Route, Article 234, installations and structures in the Exclusive Economic Zones (EEZs), maritime boundary delimitation and fisheries. It also examines the significance of the fact that the United States, one of the Arctic States, is not a party to UNCLOS while several other Arctic States have exercised their right to make a declaration opting out of the compulsory procedures for certain categories of disputes. Finally, the paper concludes by arguing that even though States Parties will be reluctant to invoke the UNCLOS compulsory procedures, disputes could arise that threaten vital national interests of certain States, and in such cases, the UNCLOS dispute settlement regime could play a useful role.

*  Robert Beckman is the Director of the Centre for International Law (CIL), a universitywide research centre at the National University of Singapore (NUS). He is also an Associate Professor at the NUS Faculty of Law, where he has taught for 35 years.

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UNCLOS Part XV on the Settlement of Disputes

The legal framework governing ocean issues in the Arctic1 is set out in the United Nations Convention on the Law of the Sea (UNCLOS).2 As of 1 December 2014, there are 166 parties to the Convention, including the European Union.3 The only State with significant interests in the Arctic that is not a party to UNCLOS is the United States, but it accepts that most of the provisions in UNCLOS are binding on it under customary international law.4 One of the most important features of UNCLOS is that it contains a dispute settlement regime that is an inherent part of the ‘package deal’ of the Convention. Under the package deal, States agree to accept the Convention in its entirety, with no right to make reservations, and therefore, all States that become parties to UNCLOS are bound by the dispute settlement regime in Part XV.5 The most significant feature of the dispute settlement regime is that most disputes between States Parties to UNCLOS on the interpretation or application of its provisions is subject to a system of compulsory procedures entailing binding decisions by an international court or international arbitral tribunal. If a dispute arises on the interpretation or application of a provision in UNCLOS, the States concerned must proceed expeditiously to an ‘exchange of views’ regarding its settlement by negotiation or other peaceful means.6 If no settlement can be reached through negotiation, the dispute may be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction.7

1  This paper will explore legal issues between the five Arctic-bordering States and Iceland. 2  United Nations Convention on the Law of the Sea, adopted 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994) (UNCLOS). 3  For the ratification status of UNCLOS, see (all website addresses in this chapter were accurate as at 1 December 2014). 4  J.F. Turner, ‘Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention’, Testimony before the Senate Environment and Public Works Committee (23 March 2004), at . 5  See T. Koh, S. Jayakumar ‘Negotiating Process of the Third United Nations Conference on the Law of the Sea’, in: M.H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, (Leiden/Boston: Martinus Nijhoff Publishers, 1985) (Virginia Commentary), Vol. I, p. 29. 6  UNCLOS, supra note 2, Art. 283. 7  Ibid., Art. 286.

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Which court or tribunal that has jurisdiction to hear a given dispute is determined by whether the parties to the dispute have elected to declare officially which of the following courts of tribunals they prefer: (a) the International Court of Justice (ICJ), (b) the International Tribunal for the Law of the Sea (ITLOS), (c) an Arbitral Tribunal established in accordance with Annex VII of UNCLOS, or (d) a Special Arbitral Tribunal established in accordance with Annex VIII of UNCLOS.8 If both parties to a dispute have declared that they prefer the same court or tribunal, a dispute between them will be heard by that Tribunal.9 For example, both Denmark and Norway have declared that they choose the ICJ for the settlement of disputes concerning the interpretation or application of UNCLOS.10 Therefore, if a dispute arises between Denmark and Norway, it will be heard by the ICJ. If the two parties to a dispute have not chosen the same forum, or have failed to make any choice, the dispute will be heard by an Annex VII Arbitral Tribunal.11 For example, neither Canada nor Russia has made a declaration declaring that they prefer a particular method of dispute settlement.12 Therefore, if a dispute arose between Canada and Denmark, or between Canada and Russia, it would be heard by an Annex VII Arbitral Tribunal. The system of compulsory procedures entailing binding decisions is subject to some exceptions. The most important is Article 298, which permits States Parties to declare that they do not accept the compulsory procedures for the following categories of disputes:

• •

disputes on the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles; disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of 8  Ibid., Art. 287(1). 9  Ibid., Art. 287(4). 10  Declarations Made upon Signature, Ratification, Accession or Succession or Anytime Thereafter, ‘Denmark, Upon Ratification (16 November 2004)’, ‘Norway, Upon Ratification (24 June 1996)’, at . 11  UNCLOS, supra note 2, Art. 287(5). 12  ‘Canada, Declaration made upon Ratification (7 November 2003)’; ‘Russian Federation, Upon Signature (10 December 1982)’ and ‘Upon Ratification (12 March 1997)’, supra note 10.

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sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3; [emphasis added] disputes in respect of which the UN Security Council is exercising the functions assigned it by the UN Charter.

•

Two of the Arctic States, Canada and Russia, have exercised their right to make a declaration under Article 298 excluding all the categories of disputes listed in the Article.13 Canada’s declaration is completely consistent with UNCLOS as it incorporates the exact language of Article 298. Russia’s declaration is broader than that permitted under Article 298 because its declaration with respect to military activities and law enforcement activities failed to state that it is limited to disputes excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3. Russia’s declaration states that it excludes: disputes concerning military activities, including military activities by government vessels and aircraft, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction.14 This exclusion was considered by ITLOS in Arctic Sunrise between the Netherlands and Russia. The Tribunal held that this paragraph of the Russian declaration applies only to disputes excluded under Article 297, paragraph 2 or 3: 45. . . . in the view of the Tribunal, the declaration made by the Russian Federation with respect to law enforcement activities under article 298, paragraph 1(b), of the Convention prima facie applies only to disputes excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3, of the Convention;15 Article 288 provides that if one of the parties to a dispute challenges the jurisdiction of the court or tribunal, the matter shall be settled by decision of that

13  Ibid. 14  Ibid., ‘Russian Federation, Upon Ratification (12 March 1997)’. 15  The Arctic Sunrise Case (Kingdom of the Netherlands v. Russian Federation), Provisional Measures, International Tribunal for the Law of the Sea (ITLOS), Case No. 22, Order of 22 November 2013, para. 45, at http://www.itlos.org/fileadmin/itlos/documents/cases/ case_no.22/Order/C22_Ord_22_11_2013_orig_Eng.pdf.

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court or tribunal.16 Thus, the court or tribunal itself, rather than a State Party to the dispute, has the competence to decide the issue of jurisdiction. 2

Arctic Legal Issues and the UNCLOS Dispute Settlement Regime

2.1 Canada and Russia: Straight Baselines and Internal Waters Claims The Arctic is an ocean governed by UNCLOS, and coastal States are entitled to claim the same maritime zones from their land territory in the Arctic as in other areas with oceans—a territorial sea,17 a contiguous zone,18 an EEZ19 and a continental shelf, the latter of which may extend beyond the outer limits of the 200 nautical mile (nm) EEZ.20 Legal issues exist regarding the maritime claims of Canada and Russia. Both States maintain that the straits and channels along their northern coasts are ‘internal waters’.21 Internal waters are waters under the sovereignty of the coastal State, and foreign ships have no right of passage without the consent of the coastal State.22 Canada’s claim that the waters between the islands off its northern coast are internal waters is based on two grounds. First, Canada maintains that the mostly ice-covered waters of the high northern Arctic are historic waters subject to its sovereignty based on its historic usage and control.23 It maintains that the waters have been occupied and controlled exclusively by its Inuit peoples for thousands of years, that Canada has succeeded to the rights of these peoples, and that the international community has acquiesced to the exercise of sovereignty by Canada.24 The issue of historic waters is governed by the principles of customary international law, not UNCLOS. Second, Canada claims that the waters are internal waters because they are landward of the straight baselines it has employed along its northern coast. In 1985, Canada drew straight baselines along its northern coast enclosing all 16  UNCLOS, supra note 2, Art. 288(4). 17  Ibid., Art. 3. 18  Ibid., Art. 33. 19  Ibid., Art. 55. 20  Ibid., Art. 76. 21  J.A. Roach and R.W. Smith, Excessive Maritime Claims, 3rd edition (Leiden/Boston: Martinus Nijhoff Publishers, 2012), pp. 312–328. 22  Except as provided in UNCLOS, supra note 2, Art. 8(2). 23  M. Byers, International Law and the Arctic (Cambridge, 2013), pp. 131–132. 24  Ibid., pp. 132–133.

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the islands.25 Under UNCLOS, all the waters landward of straight baselines are internal waters, and all maritime zones are measured from the baselines. The normal baseline for measuring the breadth of the territorial sea is the lowwater line along the coast,26 but States are permitted under Article 7 to draw straight baselines when certain conditions are present. Controversy has arisen on Canada’s use of straight baselines and its claim of internal waters. In 1986, the United States protested Canada’s use of straight baselines in the Arctic on the ground that there was no basis in international law for its use of straight baselines.27 The European Community (now the European Union) also protested Canada’s use of straight baselines around the high Arctic islands.28 The protest note also made it clear that they did not recognise the validity of historic title as a justification for the drawing of straight baselines. Russia also has employed an extensive use of straight baselines along its Arctic coast. The United States has objected to these baselines.29 The United States also stated in a diplomatic note that it is not aware of any claim that the waters of certain straits enclosed by the straight baselines are historic waters.30 Could a dispute on the legality of the internal waters claims of Canada and Russia be submitted to an international court or arbitral tribunal under section 2 of Part XV of UNCLOS? A dispute on the interpretation or application of Article 7 of UNCLOS on the use of straight baselines would be subject to the compulsory procedures entailing binding decisions in section 2 of Part XV of UNCLOS. However, the dispute settlement procedures in UNCLOS can only be invoked by parties to the Convention. Therefore, the procedures would not be available to the United States, unless it first becomes a party to the Convention. Also, if Canada and Russia maintain that the waters inside their straight baselines are ‘historic waters’, it may not be possible for any State to invoke the UNCLOS dispute settlement procedures to challenge their claim. There are two reasons for this. First, claims to historic waters are not governed by UNCLOS, but by customary international law, and the dispute settlement procedures in UNCLOS apply only to disputes on the interpretation or application 25  Territorial Sea Geographical Co-ordinates (Area 7) Order of 10 September 1985, at . 26  UNCLOS, supra note 2, Art. 5. 27  Roach and Smith, supra note 21, p. 111. 28  Ibid., p. 112. 29  Ibid., p. 97. 30  Byers, supra note 23, pp. 144–145.

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of the provisions of the Convention. Second, Article 298 permits States Parties to UNCLOS to declare that they do not accept the compulsory procedures in section 2 of Part XV for certain categories of disputes, including disputes ‘concerning historic bays or titles’, and both Canada and Russia have made declarations excluding this category of disputes. Passage Rights through the Northwest Passage and Northern Sea Route The main reason the United States has protested Canada’s claim to historic waters, as well as the straight baselines employed by Canada and Russia is that they would make key portions of the Northwest Passage and the Northern Sea Route ‘internal waters’, with passage of foreign vessels subject to the consent of the coastal State. The United States has long maintained that the Northwest Passage is a strait used for international navigation as defined in Article 37 of UNCLOS, and that all ships and aircraft enjoy the right of transit through the strait in accordance with the provisions in Part III of UNCLOS. The United States takes a similar position with respect to several of the straits in the Northern Sea Route. A dispute between two States Parties to UNCLOS on whether a particular strait is a strait used for international navigation governed by Part III of UNCLOS is a dispute subject to the compulsory procedures entailing binding decisions in section 2 of Part XV. Therefore, if a dispute were to arise between either Canada or Russia and a State Party to UNCLOS, and the dispute cannot be resolved through negotiation, either party to the dispute could refer it to an international court or arbitral tribunal as provided in section 2 of Part XV of UNCLOS. Russian legislation contains a provision that may sidestep the controversy over whether passage through the Northern Sea Route is transit passage through a strait used for international navigation or passage through internal waters subject to the consent of the Russian government. In 2012, the Russian Duma enacted and the Council of Federation approved, a ‘Federal Law on Amendments to Specific Legislative Acts of the Russian Federation related to Governmental Regulation of Merchant Shipping in the water area of the Northern Sea Route’.31 The legislation provides that: 2.2

Navigation in the water area of the Northern Sea Route, the historically emerged national transportation route of the Russian Federation, shall be 31  Federal Law No. 132-03, 28 July 2012, at .

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performed according to the commonly accepted principles and norms of the international law, international agreements of the Russian Federation, this Federal Law, other Federal Laws and other regulatory legal documents issued in relation with the above.32 The international treaties to which Russia is a party include UNCLOS and the most important International Maritime Organization (IMO) conventions, including the International Convention for the Safety of Life at Sea (SOLAS)33 and the Protocol relating to the 1973 International Convention on the Prevention of Pollution from Ships (MARPOL).34 Therefore, it could be argued that Russian national legislation incorporates by reference the passage regimes in UNCLOS, including the provisions providing for transit passage in straits used for international navigation. In addition, this provision would also require vessels exercising passage to comply with the provisions of major IMO conventions to which Russia is a party, including SOLAS and MARPOL. 2.3 National Laws Regulating Passage in the Territorial Sea The employment of straight baselines by Canada and Russia also could give rise to questions about whether a particular area off their coast is part of their territorial sea or their EEZ. Issues could arise on the extent to which the coastal States have the right to regulate the passage of vessels in their territorial sea. Part II of UNCLOS sets out the rights and obligations of coastal States and user States in the territorial sea. The sovereignty of the coastal State extends to its territorial sea, but such sovereignty must be exercised subject to the provisions in UNCLOS and other rules of international law.35 Under UNCLOS, ships of all States have the right of innocent passage through the territorial sea and this right may not be impeded by the coastal State.36 UNCLOS provides that the coastal State may adopt laws and regulations relating to innocent passage on many matters, including safety of navigation 32  Clause 2 of Act No. 132-03, ibid., amending clause 14 of Federal Law No. 155-03, 31 July 1998, On Internal Waters, Territorial Sea and Adjacent Zone of the Russian Federation [emphasis added]. 33  International Convention for the Safety of Life at Sea, adopted 1 November 1974, 1184 UNTS 2 (entered into force 25 May 1980). 34  Protocol relating to the 1973 International Convention on the Prevention of Pollution from Ships, adopted 17 February 1978, 1340 UNTS 61 (entered into force 2 October 1983). 35  UNCLOS, supra note 2, Art. 2(3). 36  Ibid., Arts. 17, 24.

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and protection and preservation of the marine environment.37 The coastal State may also designate sea lanes and traffic separation schemes and require foreign ships to use such lanes and schemes when exercising the right of innocent passage.38 However, the laws and regulations of the coastal State may not include regulations on the design, construction, manning or equipment of foreign vessels, unless they are giving effect to generally accepted international rules and standards.39 Another limitation is that charges may not be levied on foreign vessels by reason only of their passage through the territorial sea.40 However, charges may be levied for specific services rendered to a ship, such as towage or ice-breaking.41 Disputes could arise on whether the laws and regulations of the coastal State on the safety of navigation or protection of the marine environment from ship-source pollution in the territorial sea exceed their powers under Part II of UNCLOS. If so, such disputes would be subject to the system of compulsory procedures entailing binding decisions in section 2 of Part XV. 2.4 Article 234 on Ice-Covered Areas The UNCLOS provision that is most likely to give rise to disputes on its interpretation or application is Article 234 on ice-covered areas. This provision was negotiated directly between the major States concerned—Canada, the Soviet Union and the United States—and incorporated without opposition in the text of the Convention.42 It reads as follows: 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. 37  Ibid., Art. 21(1). 38  Ibid., Art. 22. 39  Ibid., Art. 21(2). 40  Ibid., Art. 26. 41  Ibid., Art. 26. 42  Virginia Commentary, supra note 5, Vol. IV, p. 333.

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This provision gives coastal States bordering ice-covered areas the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of pollution from vessels in ice-covered areas within the limits of its EEZ when the following circumstances are met. First, in these areas there must be particularly severe climatic conditions and the presence of ice covering such areas for most of the year. Second, these conditions must create obstructions or exceptional hazards to navigation. Third, pollution of the marine environment in these areas could cause major harm to or irreversible disturbance of the ecological balance. The rights of the coastal State to adopt laws and regulations on ship-source pollution under Article 234 go beyond the normal rights of the coastal State in its EEZ that are provided in Article 211, paragraph 5. The general rule is that vessels of all States have freedom of navigation in the EEZ, and coastal States can only adopt laws and regulations for the prevention, reduction and control of pollution from ships if such laws conform to and give effect to generally accepted international rules and standards established by the IMO.43 Article 234 permits coastal States to adopt laws and regulations on ship-source pollution that are more stringent than the international rules and standards set out in the relevant IMO conventions and their annexes. Further, in contrast to the exception in Article 211, paragraph 6, there is no requirement that the laws and regulations adopted by the coastal State under Article 234 be referred to the IMO for adoption. There are some limits on laws and regulations adopted under Article 234. First, such laws shall have due regard to navigation. Although no guidance is provided on what this entails, it is reasonable to assume what it means is that the laws of the coastal States must recognise the general principle that foreign ships have freedom of navigation in the EEZ. There is no requirement in Article 234 that the coastal State notify and consult either user States or the IMO before adopting such laws and regulations. However, in order to implement its ‘due regard’ obligation in good faith, it would be good practice for the coastal State to notify and consult the IMO and major user States before adopting such laws and regulations. The coastal State would not have to follow the advice of the IMO, but it should take into account the IMO’s comments and recommendations. This practice would be similar to what the coastal State is obliged to do when designating sea lanes and prescribing traffic separation schemes in the territorial sea.44

43  UNCLOS, supra note 2, Art. 211(5). 44  Ibid., Art. 28.

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Second, the laws and regulations adopted by the coastal State under Article 234 must be adopted and enforced in a way that does not discriminate against any vessels navigating in these areas. Third, such laws shall have due regard for the protection and preservation of the marine environment based on the best available scientific evidence. The Virginia Commentary to UNCLOS suggests that there may be issues relating to the scope of review of scientific studies on which the coastal State bases its laws and regulations, with apparent discrepancies in the text of the Convention in some of the official languages.45 Fourth, Article 236 also provides that, like the rest of the provisions of UNCLOS on the protection and preservation of the marine environment, the laws and regulations adopted by coastal States under Article 234 do not apply to warships or ships used only on government non-commercial service. Some of the language in Article 234 is far from clear, and disputes could arise between States Parties on its interpretation or application, especially if passage through the Northern Sea Route and Northwest Passage accelerates because of climate change. First, it is not clear how the phrase ‘the presence of ice covering such areas for most of the year’ [emphasis added] should be interpreted. The vagueness of this phrase could give rise to a dispute if the melting of the Arctic ice eventually makes the passage navigable for more than six months a year. Second, there is a difference of opinion among observers on the meaning of the phrase ‘within the limits of the economic zone’ and thus on the geographic scope of the provision. A plain reading suggests that the special rights under Article 234 apply to the rights of the coastal State to adopt laws and regulations that apply to ships within ice-covered areas of its EEZ. However, the authors of Volume IV of the Virginia Commentary opine that this phrase ‘refers to that part of the sea extending from the outer limits of the coastal State’s exclusive economic zone to that State’s coastline.’46 Churchill and Lowe also seem to agree with this position.47 However, other authors disagree and maintain that the ordinary meaning of the phrase within the limits of the EEZ is within the EEZ alone, not within the territorial sea and EEZ.48 Another issue that has been raised is whether Article 234 is a lex specialis provision that can trump the obligations of the coastal State under other 45  Virginia Commentary, supra note 5, Vol. IV, p. 398. 46  Ibid., Vol. IV, p. 397. 47  R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd edition (Manchester, 1999), p. 348. 48  K. Bartenstein, ‘The “Arctic Exception” in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?’ 42 Ocean Development & International Law, 2011, pp. 22–52.

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international conventions to which it is a party, even later conventions. For example, can Canada or Russia adopt national laws and regulations that are more stringent than the regulations in the Polar Code, which is being adopted as annexes to the SOLAS and MARPOL Conventions?49 It seems on its face that it is a lex specialis provision, but it can be argued that the powers of the coastal State are still limited by the language in Article 234 requiring that it give due regard to the freedom of navigation of other States in the EEZ. One issue that could arise is whether a coastal State could adopt laws and regulations with respect to the design, construction, manning or equipment on foreign ships exercising the freedom of navigation in the EEZ in their Arctic waters if such laws and regulations are more stringent than the generally accepted international rules or standards established by the IMO (such as those in the Polar Code). Article 21 of UNCLOS provides that with respect to those matters, the laws and regulations of the coastal State governing foreign ships exercising the right of innocent passage in their territorial sea can only give effect to generally accepted international rules and standards. Therefore, it would be difficult to maintain that coastal States have more power to regulate foreign ships exercising freedom of navigation in their EEZ than they do to regulate innocent passage by foreign ships in their territorial sea. A dispute could also arise on whether laws and regulations of the coastal State adopted under Article 234 are ‘based on the best available scientific evidence’. Even though there is no requirement in Article 234 that coastal States submit the proposed laws and regulations and the scientific evidence that support them to the relevant committees of the IMO, it would be good policy for a coastal State to submit its proposed regulations and the scientific studies upon which they are based to the relevant IMO bodies and seek their endorsement. If a coastal State acts unilaterally, and the shipping community is sceptical about the need for the laws and regulations and/or the scientific evidence upon which they are based, it would increase the likelihood that a user State may be encouraged to invoke the dispute settlement provisions in UNCLOS to challenge the legality of the laws and regulations. If a dispute arises between two States Parties to UNCLOS on the interpretation or application of Article 234, such dispute is subject to the compulsory procedures entailing binding decisions in section 2 of Part XV and cannot be excluded by a declaration under Article 298.

49  IMO, Shipping in Polar Waters—Development of an International Code of Safety for Ships Operating in Polar Waters (Polar Code), at .

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Artificial Islands, Installations and Structures in the EEZ or on the Continental Shelf Disputes could also arise on the interpretation or application of the provisions in UNCLOS on artificial islands, installations and structures in the EEZ or on their continental shelf. The rights and duties of coastal States with respect to these infrastructures in the EEZ are set out in Article 60, which applies mutatis mutandis to installations and structures on the continental shelf as provided in Article 80. Article 60, paragraph 1 provides that coastal States have jurisdiction over installations and structures in their EEZ, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations. The word ‘including’ implies that the coastal States may also have jurisdiction to adopt laws and regulations providing for the ‘security’ of installations and platforms. Article 60, paragraph 4 provides that the coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures. All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones. Article 60, paragraph 5 provides that the breadth of the safety zones shall be determined by the coastal State, taking into account applicable international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 metres around them, measured from each point of their outer edge, except as authorised by generally accepted international standards or as recommended by the competent international organisation (the IMO). Due notice shall be given of the extent of safety zones. The question that arises is whether coastal States have the right to declare 500 metre security zones or exclusion zones, as well as the right to arrest ships that intentionally breach the exclusion zone around an installation or structure. A coastal State could argue that Article 60, paragraph 4 gives them the right to take appropriate measures to ensure the ‘safety’ of the installations and structures, and that under the practice of the IMO, the ‘security’ of an installation or structure comes within the general category of ‘safety’. For example, in 2002 the IMO adopted a number of measures to enhance the security of ships through amendments to the SOLAS Convention.50 Furthermore, the use 2.5

50  In 2002, the IMO adopted a new comprehensive security regime to strengthen maritime security and prevent and suppress acts of terrorism against shipping. The measures were

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of the word ‘includes’ in Article 60, paragraph 1, implies that the jurisdiction of the coastal State over installations and structures is not limited by the enumerated list. The provisions in Articles 60 and 80 are intended to balance the interests of the coastal State in protecting artificial islands, installations and structures for the exploitation of its natural resources and the interests of other States in exercising freedom of navigation in the EEZ of the coastal State. Each State has an obligation to give due regard to the rights and duties of the other.51 In this case, a coastal State that wants to declare a security zone should consult with major users and/or the IMO before enacting legislation declaring a security zone around installations and structures. Furthermore, it should ensure user States that its enforcement measures will take the interests of user States fully into account. For example, it could expressly provide in its laws and regulations that foreign ships violating the security zone will not be boarded without the express consent of the master or the flag State. In other words, it should ensure user States that its enforcement measures will be consistent with international law and that it will respect the general principle that ships in the EEZ are subject to the exclusive jurisdiction of the flag State. Disputes could arise between parties to UNCLOS on the provisions in UNCLOS on artificial islands, installations and structures in the EEZ. Like most other disputes on the interpretation or application of the Convention, they would be subject to the compulsory procedures entailing binding decisions in section 2 of Part XV. 2.6 Arctic Maritime Boundaries The default provision in UNCLOS is that disputes concerning the interpretation or application of Articles 15, 74 or 83 on the delimitation of maritime boundaries between opposite or adjacent States are subject to the compulsory procedures entailing binding decisions in section 2 of Part XV.

adopted at an IMO Conference in London from 9 to 13 December 2002. The measures represented the culmination of intense work by the IMO Maritime Safety Committee and its Intersessional Working Group following the terrorist atrocities in the United States in September 2001. The Conference adopted a number of amendments to the 1974 Safety of Life at Sea Convention (SOLAS), the most far-reaching of which enshrines the new International Ship and Port Facility Security Code (ISPS Code). 51  UNCLOS, supra note 2, Arts. 56(2) and 58(3).

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All the Arctic States claim an EEZ and a continental shelf. Many of the overlapping claims to EEZ and continental shelf boundaries have already been resolved, but a few are outstanding.52 Although disputes on the interpretation or application of Article 74 on the delimitation of EEZ boundaries and Article 83 on the delimitation of continental shelf boundaries are in principle subject to the compulsory procedures entailing binding decisions in section 2 of Part XV, few if any of the overlapping boundary claims in the Arctic are likely to be referred to an international court or arbitral tribunal under section 2 of Part XV. There are several reasons for this. First, as the United States is not a party to UNCLOS, any maritime boundary dispute that may arise between the United States and Canada or between the United States and Russia would not be subject to the dispute settlement procedures in UNCLOS. Second, Canada and Russia have made declarations under Article 298 excluding disputes on the interpretation or application of the provisions of UNCLOS on all categories of disputes stated in the Article, including disputes concerning maritime boundary delimitation, from the compulsory procedures entailing binding decisions.53 In addition, Iceland has made a declaration that in effect means that it has opted out of the compulsory procedures in UNCLOS for disputes on maritime boundaries.54 A summary of the current situation with regard to maritime boundaries that have yet to be resolved is as follows:

•

Russia–United States. Under the 1990 Bering Sea Treaty, both parties agreed on territorial sea, EEZ and continental shelf boundaries that extend for 1,600 nm between Russia and the State of Alaska in the United States.55 The United States has ratified the treaty, but Russia has not.56 However, both

52  Byers, supra note 23, pp. 28–55. 53  Supra note 12. 54  ‘Iceland, Declaration made upon Ratification (21 June 1985)’, supra note 10. 55  Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, 1 June 1990, (1990 Bering Sea Treaty), at . 56   The United States Congressional Record 102nd Congress (1991–1992), Executive Session–Agreement with the Union of Soviet Socialist Republics on the Maritime Boundary (Senate—September 16, 1991), S13036, at .

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parties have provisionally applied the treaty since June 1990.57 The agreement anticipated the possibility of both States having an extended continental shelf beyond 200 nm, allowing the boundary to extend northwards;58 Canada–Denmark. A 1973 Treaty deals with most of the boundary area between Canada (Ellesmere Island) and Denmark (Greenland).59 A tentative agreement was entered into in 2012 on the Lincoln Sea EEZ boundary, north of Ellesmere and Greenland.60 The part of the boundary that remains unresolved is the continental shelf boundary beyond 200 nm in the northern part of Lincoln Sea. Canada’s declaration under Article 298 excludes the prospect of the dispute being referred by either party to the compulsory procedures in section 2 of Part XV. However, since both countries have made optional clause declarations accepting the compulsory jurisdiction of the ICJ, the boundary dispute could be referred by either party to the ICJ;61 Canada–United States. The two States have disagreed on the location of the boundary in the Beaufort Sea since 1976.62 The boundary claim of the United States is based on the equidistance line and the boundary claim of Canada is based on a meridian line extending from the terminus of the land boundary.63 The dispute is complicated by claims to extended continental shelf beyond 200 nm. The UNCLOS dispute settlement provisions are not relevant because the United States is not a party and because of Canada’s declaration under Article 298.

•

•

Because most of the Arctic Ocean contains a very broad continental shelf, the Arctic States that are parties to UNCLOS either have made or will be making claims to an extended continental shelf beyond 200 nm by submitting the required information to the Commission of the Limits of the Continental Shelf 57  1990 Bering Sea Treaty, Letter by His Excellency Eduard A. Shevardnadze, Minister of Foreign Affairs of the Union of Soviet Socialist Republics (1 June 1990). 58  1990 Bering Sea Treaty, supra note 55, Art. 3. 59  Agreement between the Government of the Kingdom of Denmark and the Government of Canada Relating to the Delimitation of the Continental Shelf between Greenland and Canada (17 December 1973), at . 60   Canada and Kingdom of Denmark Reach Tentative Agreement on Lincoln Sea Boundary, 28 November 2012, at . 61  International Court of Justice, Declarations Recognizing the Jurisdiction of the Court as Compulsory, at . 62  Byers, supra note 23, p. 58. 63  Ibid., pp. 58–62.

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(CLCS).64 In addition, the United States is preparing data to claim an extended continental shelf even though it will not be able to submit information to the CLCS unless it becomes a party to UNCLOS.65 The overlapping extended continental shelf claims area will be governed by Article 83 on the delimitation of continental shelf boundaries. Based on the projections of observers, there may be overlapping outer continental shelf claims between the United States and Canada, the United States and Russia, Canada and Denmark, and Canada and Russia.66 Although Canada, Russia and Iceland have made declarations excluding the compulsory procedures entailing binding decisions in section 2 of Part XV to their maritime boundary disputes, such disputes may be referred to nonbinding conciliation. This is provided for in Article 298, in a rather complicated provision which reads as follows: (a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission; Under this provision, a dispute with Canada or Russia on the delimitation of the outer continental shelf could be referred to non-binding conciliation under Annex V, section 2 of UNCLOS if certain conditions are satisfied. First, the dispute must have arisen prior to 15 November 1994, the date of entry into force of UNCLOS. A dispute on overlapping outer continental shelf boundaries is almost certain to have arisen after this date, as the procedures for submitting a claim to the CLCS were not established until 1997.67 Second, the parties 64  UNCLOS, supra note 2, Art. 76(8). 65  See United States Extended Continental Shelf Project at . 66  Byers, supra note 23, pp. 107–109. 67  Commission on the Limits of the Continental Shelf (CLCS), CLCS/L.3, 12 September 1997, Modus Operandi of the Commission, at .

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were unable to reach an agreement on the boundary within a reasonable time. Although ‘reasonable time’ is rather vague, given the practice of courts and tribunals on such matters, it seems likely that a State will be able to meet this condition if it can show the negotiations on resolving the boundary have failed. Third, the dispute on the maritime boundary must not necessarily involve the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory. Again, in the case of overlapping outer continental shelf claims, this would not be an issue. If the non-binding conciliation procedures are successfully invoked, the conciliation commission will be appointed as provided in Annex V, section 2. After it has completed its work, it will present a report, which shall state the reasons on which it is based. The parties to the dispute are then required to negotiate an agreement on the basis of that report. If these negotiations do not result in an agreement, Article 298 provides that ‘the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless they otherwise agree’. The procedures provided for in section 2 are the compulsory procedures entailing binding decisions before an international court or arbitral tribunal. The precise meaning of the phrase ‘shall, by mutual consent’ is not clear. However, what Article 298 seems to require is that the parties make a good faith attempt to negotiate to reach an agreement based on the report of the conciliation commission. In other words, they must abandon their historic position and consider in good faith the non-binding recommendations in the report of the conciliation commission. Further, if they are unable to resolve the dispute, they should make a good faith effort to agree to refer it to an international court or arbitral tribunal as provided in section 2 of Part XV. In conclusion, the compulsory procedures entailing binding decisions in section 2 of Part XV are likely to play little or no role in delimiting the maritime boundaries in the Arctic. However, nationalism may prevent certain States from conceding in negotiations on overlapping extended continental shelf claims that the North Pole is not on their continental shelf. In such case, the provisions in Part XV on non-binding conciliation may result in a non-binding report of a conciliation commission that would enable the parties to depart from their historic claim and allow them to reach a negotiated agreement on the boundaries. 2.7 Fisheries Fisheries management in the Arctic does not seem to be a critically important issue at this time. However, if the ice cap continues to melt, it may be necessary to manage fisheries at the regional level and establish a regional fisher-

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ies management organisation (RFMO).68 In such case, it is good that all the ‘Arctic 5’ States, including the United States, as well as Iceland, Sweden and Finland, are parties to the 1995 Fish Stocks Agreement.69 The dispute settlement provisions in Part XV of UNCLOS apply mutatis mutandis to any dispute between States Parties to the 1995 Fish Stocks Agreement concerning the interpretation or application of the Agreement, whether or not they are also States Parties to the Convention.70 Therefore, if a dispute were to arise between any of the parties to the 1995 Fish Stocks Agreement, and the dispute cannot be settled by consultation or negotiation, either party to the dispute could invoke the compulsory procedures entailing binding decisions in section 2 of Part XV of UNCLOS. 3 Conclusions UNCLOS establishes a legal framework for most of the ocean issues in the Arctic. The dispute settlement system in UNCLOS provides, with limited exceptions, that any dispute between two State Parties that cannot be resolved by consultation and negotiation is subject to the compulsory procedures entailing binding decisions in section 2 of Part XV. However, as explained above, it is not likely that the disputes on the interpretation or application of UNCLOS will be referred to a court or tribunal under section 2 of Part XV. The dispute settlement system in UNCLOS could be invoked if the passage routes begin to open up for international navigation, and either Canada or Russia adopts unilateral measures to regulate foreign ships under Article 234 that are more stringent than the measures set out in the Polar Code or the IMO conventions. Also, if Canada or Russia were to insist that consent for passage of foreign ships is required because all the waters inside their baselines are internal waters, a user State could decide to challenge the legality of the baselines under UNCLOS. 68   Meeting on Arctic Fisheries, Nuuk, Greenland, 24–26 February 2014, Chairman’s Statement, at . 69  Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted 4 August 1995, 2167 UNTS 3 (entered into force 11 December 2001) (1995 Fish Stocks Agreement). For the ratification status of the Agreement, see . 70  Ibid., Art. 30(1).

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Finally, domestic politics could make it impossible for the Arctic States to delimit their outer continental shelf boundaries if it means that one or more of the Arctic States would have to give up their claim that the North Pole is on their outer continental shelf. In such case, the UNCLOS dispute settlement regime could play a useful role in resolving the disputes.

CHAPTER 25

Russian Maritime Security Law along the Northern Sea Route: Giving Shape to Article 234 in the Law of the Sea Convention James Kraska* Abstract Russia’s Arctic maritime security strategy rests on the expansion of three industrial sectors—energy, with most of it situated offshore, commercial shipping along the Northern Sea Route, and military power, expressed through sea and air forces capable of long-range power projection. This chapter focuses on dimensions of maritime security of the Russian Federation in the Arctic Ocean region within the context of maritime security law and policy. In recent years, Russia has adopted new rules to enhance security and promote safe and efficient shipping throughout the Northern Sea Route system. Russia also seeks to build greater capacity along the Northern Sea Route to attract intercontinental shipping and directly compete with the Suez Canal. Increased air and surface traffic, however, mean a greater risk of aviation and marine accidents, potential damage to the fragile marine environment from ships and offshore installations, and perhaps more attenuated threats, such as the spread of infectious disease. To counter these risks, Russia has focused on the development of national and international law, including the Arctic Search and Rescue Agreement, 2012 domestic legislation, and the 2013 Ministry of Transport rules for navigation in the Northern Sea Route water area. In particular, Russia’s national laws implement Article 234 of UNCLOS, as well as other international agreements to which the Russian Federation is a party.

*  Howard S. Levie Professor, Stockton Center for the Study of International Law, United States Naval War College and Senior Fellow, Center for Oceans Law and Policy, University of Virginia School of Law. The author’s PowerPoint is available at http://www.virginia.edu/colp/ pdf/bergen-kraska.pdf

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004314252_027

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The Maritime Security Environment

The US National Aeronautical and Space Administration (NASA) reported that since the late 1970s, Arctic sea ice has retreated by 13 percent per decade.1 The trend worsened after 2007. Similarly, the National Snow and Ice Data Center (NSIDC) states that the sea ice extent in May 2014 was the third lowest for the month since satellites have been used to collect the data.2 These physical changes have concrete impacts on Russian activities in the Arctic region. The Northern Sea Route, for example, opened two weeks earlier than normal for the 2014 navigation season due to reduced ice coverage. Changes in the physical environment, plus advances in technology to facilitate operations in extreme cold climates, drive changes in the social and political environment. The seascape of the Arctic Ocean is opening to greater human activity. Offshore oil and gas, fishing, and international commercial shipping have increased in the region. Consequently, the political and economic importance of the Arctic Ocean is on the ascent, adding a new imperative for maritime security law and policy in the context of a profoundly unique natural environment marked by extreme cold, remote operating areas, and lack of infrastructure from aids to navigation, reduced satellite communications footprints, and a dearth of ship reception facilities. 1.1 The Most Consequential Arctic Power The Russian Federation is the essential Arctic power. The country extends 170 degrees around the pole, accounting for nearly half of the coastline and littoral waters of the Arctic Ocean. Russia has some of the longest coastlines in the world, which stretch for 10,000 miles in the north, and it is home to three of the four largest rivers that flow into the Arctic Ocean. The six largest Eurasian Arctic rivers (Yenisey, Lena, Ob’, Pechora, Kolyma, and Severnaya Dvina) drain about two-thirds of the Eurasian Arctic landmass and include three of the largest rivers on Earth.3

1  Arctic Sea Ice Minimum, Global Climate Change, NASA, October 7, 2015, http://climate .nasa.gov. 2  Trude Pettersen, “The shrinking of the Arctic ice sheet in the upcoming 10th edition of the National Geographic Atlas of the World is one of the most striking changes in the publication’s history, geographers say,” Barents Observer, June 12, 2014. 3  Bruce J. Peterson, et al., “Increasing River Discharge to the Arctic Ocean,” 298 Science 2171 (2002).

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The Arctic coastal zone covers about one-third of the territory of Russia and is home to 17 million of its citizens.4 Two million of the four million inhabitants who live in the Arctic region live in Russia. By comparison, the entire state of Alaska has a population of 700,000 persons. Likewise, the total land area of the Russian Arctic region is about six million km2 or 2.3 million m2, compared with the contiguous United States of 3.1 million m2. The Russian focus on economic development and national security over such a broad area is expressed through the maritime sectors of shipping and offshore energy, and associated methods of maritime security to safeguard them. The Arctic region, however, is a maritime domain. In Russia, the central geographic feature is the Arctic Ocean, and the vast shoreline along which empty three immense rivers: the Yenisei, Ob, and Lena. Each of these watersheds has a drainage basin of one million square miles, about the size of the Mississippi River watershed. These massive waterways are the 5th, 7th and 11th longest rivers in the world by length, and have the 3rd, 5th and 6th largest drainage basins in the world. The rivers drain north into the Arctic Ocean, and they provide a natural economic conduit between the interior of Siberia and the world.5 The Arctic Circle lies at 66° 33′ 44″ N latitude. The three largest cities above the Arctic Circle are Murmansk (68° 58″ N, population 303,700), Norilsk (69° 20″ N, population 177,500), and Vorkuta (67° 30″ N, population 70,500)— all in Russia. In comparison, Tromsø, Norway (69° 40″ N), has about 62,000 people and Rovaniemi in Finland, which is just below the Arctic Circle, has fewer than 58,000 people. Reykjavik, with approximately 220,000 inhabitants, lies at 64° 08″ N, and Barrow, Alaska, 71° 17′ N, has a population of just 4,500 people. Canada has only 107,000 people throughout all of Northern Yukon, the Northwest Territories, and Nunavut. Whitehorse, the capital of Yukon, is the largest city in northern Canada with a population of 28,000 inhabitants. Like Bergen, Norway, with a population of more than 400,000, Whitehorse sits at 60° N, or about 350 miles south of the Arctic Circle. Yet Bergen and Whitehorse are only about 25 miles and 45 miles farther north,

4  Ajbulatov N.A., Mihajlichenko Yu. G. et al., Development of scientific-legal provision of the Russian Federation Law “On coastal management”: Scientific Report / Oceanographic Society, Moscow, 2000, 206 pp. (in Russian). 5  Peterson, supra note 3, 2171.

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respectively, than Saint Petersburg, Russia, a metropolis with 5.2 million inhabitants and the second largest city in Russia.6 This political geography makes Russia the fulcrum of Arctic Ocean security, and the Kremlin is intent on fulfilling its destiny as a multidimensional great Arctic power. As the most consequential Arctic state, Russia’s posture in the region is the thermostat that sets the temperature for every other country. Russia’s strategic investments in economic development, transportation, and national security have profound implications for the region, and indeed the entire world. As a matter of strategic security, Russia plans to become one of the top five economies in the world by GDP,7 and it has pinned this goal on Arctic development. Land-based and offshore development of natural resources in the Arctic basin is the principal driver of economic growth for the nation. In particular, Russia seeks to develop heavy industry to make the Arctic region a globally important supplier of oil, natural gas, and other resources. While the wars in Central Asia and the tense instability of the Korean Peninsula are expected to occupy attention over the medium term, over the long term Russia expects world politics to favor energy suppliers.8 Consequently, Russia pursues development of practical rules and institutions that promote the oil and gas industry, such as the treaty with Norway concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, the Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, negotiated in coordination with the Arctic Council, and the $400 billion, 30-year bilateral energy agreement with China, which was signed after more than a decade of negotiations. This chapter proceeds with an analysis of Russian laws concerning the EEZ and the continental shelf. Moscow’s tough approach against Greenpeace protesters that used the Arctic Sunrise to get on board the Prirazlonnaya oil rig underscores the resolve to protect and cultivate the offshore oil and gas industry. Russia also seeks to build greater capacity along the Northern Sea Route (NSR) to attract intercontinental shipping and directly compete with the Suez Canal. Increased air and surface traffic increases the risk of aviation 6  Each degree of latitude is about 69 miles in distance, and each minute roughly one mile in distance. 7  National Security Strategy of the Russian Federation to 2020, By Decree of the President of the Russian Federation, 12 May 2009 No. 537, para. 53. 8  Id., para. 11.

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and marine accidents, damage to the marine environment from vessels and offshore installations, illegal, unreported and unregulated fishing, and more distributed threats, such as the spread of infectious disease. To counter these threats, Russia has focused on the development of national and international laws, including 2012 legislation and the 2013 Ministry of Transport rules for navigation in the Northern Sea Route water area. In particular, national rules take into account Article 234 of the United Nations Convention on the Law of the Sea (UNCLOS), as well as other international agreements to which the Russian Federation is a party, such as the Arctic Search and Rescue (SAR) agreement. Unlike China, which has chosen to obfuscate its laws in the South China Sea, Russia has carefully worked to ensure its national laws are consistent with international norms. The 2013 revisions to the regulations of the Northern Sea Route, for example, are more objective and transparent than the previous regime—aiding international commercial planning and operations. Russia hopes the NSR will help it to gravitate from the periphery of the global trading system to become a busy crossroads between Asia and Europe. In Russia, the NSR is regarded as a key piece of critical strategic infrastructure that fulfills military and economic requirements, much like the United States viewed the interstate highway system fifty years ago, or has looked upon the Panama Canal for the past one hundred years. Each of these networks facilitates economic growth, while also safeguarding strategic interests. The Russian Federation understands that conditions of political stability and the rule of law in the region are essential to realize a high-growth economy based upon natural resources and international shipping.9 Russia has a pragmatic approach to economic development in the region, and it has made strides toward greater predictability, transparency, and stability in its laws and regulations. These qualities emanate, for example, from the nation’s economic relationships between Western oil companies on the one hand, and European and Asian shipping firms, on the other. Russia is not out to expand normative regimes, however, except insofar as they contribute to the material economic or security interests of the State.

9  The rule of law permits a stability of expectations to allow human creativity to go forward and to restrain power. Remarks by John Norton Moore at the conference Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries, June 26, 2014, Bergen, Norway.

FIGURE 25.1

Russian Maritime Security Infrastructure of the Northern Sea Route. Image by author.

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1.2 Maritime Security in the Arctic Ocean There is no uniform or universally accepted definition of “maritime security,” but this chapter defines it as a stable order of the oceans subject to the rule of law at sea.10 This broad definition evokes three major dimensions, all of which apply in the Arctic Ocean. With apologies to the iconic structural realist Kenneth Waltz and his three images of international politics (the individual, the state, and the international system),11 maritime security gives rise to three functional lenses of authority: flag State, port State, and coastal State. Just as Waltz suggests a degree of interdependence among his three images,12 the three dimensions of maritime security typically involve complementary relationships among the rights and duties of flag, port, and coastal States. Russia faces no naval threat in the Arctic Ocean, although both the United States and Russia maintain ballistic missile submarines for nuclear deterrence capable of operating under the ice. Instead, Russia contends with lower order hybrid maritime security threats that are prevalent in varying degrees throughout the oceans. These threats include maritime piracy and ship hijacking, use of the sea by terrorists, either as a vector for transportation or to attack targets at sea, smuggling of illicit cargo, such as drugs and human trafficking, or use of the waterways to wage insurgency and guerrilla war. These maritime security issues dominate naval planning and operations throughout much of the world, and Russia is adept at addressing them. Russia contributes, for example, to the campaign against Somali piracy in the Western Indian Ocean. In doing so, Russia implements what may be called robust, or perhaps even overzealous, rules on the use of force.13 Farther down the spectrum of violence lies maritime constabulary and maritime law enforcement functions. These threats to maritime security address the safety of life at sea, illegal, unreported and unregulated fishing, and threats to the marine environment. Because the Arctic Ocean is in many ways an inhospitable and dangerous place to operate, and features an abundance of 10  James Kraska and Raul “Pete” Pedrozo, International Maritime Security Law 1 (2013) and UN Doc. A/63/63, Oceans and Law of the Sea, Report of the Secretary-General, Mar. 10, 2008, para. 39. 11  Kenneth Waltz, Man, the State, and War: A Theoretical Analysis 12, 85 (1954). 12  Id., 186. 13  See, “Russian Spetsnatz Kill 12 Pirates” (Russian special forces kill Somali pirates holding the Russian ship Moscow University), www.military.com, “Pirate-Captured Tanker Freed by Russian Navy,” RT (Russia Today), May 13, 2010, http://rt.com and David Cairns, “Russian Navy Sent Somali pirates to their Death,” The Week, May 12, 2010 (Somali pirates dead after set adrift by Russian forces without navigational gear) http://www.theweek .co.uk.

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living and non-living resources in the Arctic Ocean, these lower order maritime security threats predominate. The single greatest threat to maritime security in the Arctic littoral region is the risk to navigational safety due to the harsh elements—severe cold, rime ice, pack ice, ice floes and icebergs, “bergy bits,” and growlers. There are other issues that affect Arctic maritime security. Maritime boundary disputes, for example, may increase military risk and undermine political goodwill. This dynamic plays out dangerously in the East China Sea and South China Sea, but it is not a cause for alarm in the Arctic Ocean. Arctic maritime boundary disagreements do not present significant military risk. Regional maritime boundary disputes are relatively minor, effectively managed, and most importantly, are being resolved through negotiation at an alarming rate (alarming that is, for those who suggest there is some sort of “Arctic meltdown” occurring that is dragging the region toward war).14 For example, the NorwayRussia 2010 maritime boundary delimitation resolved a forty-year dispute. The United States and Russia delimited a boundary in the Bering Strait and Bering Sea and Chukchi Sea in 1990. Russia’s vast claim to an extended continental shelf (ECS) that stretches along the Lomonosov Ridge rankles Canada and Denmark (Greenland), which each have their own counter-claim. The claimants, however, are busy collecting seabed hydrographic data to support their claim through the Commission on the Limits of the Continental Shelf. It is extremely remote that disagreements over the ECS would lead to conflict. Russia takes seriously its obligations to provide scientific support for ECS claims under Article 76. The Russian Federal Service of Geodesy and Carto­g­ raphy maintains a database on external maritime boundaries and delimitation lines determined by international agreements. The service was established jointly with the Ministry of Defense to prepare geographic coordinates measurement of the territorial sea, contiguous zone, and EEZ of the Russian Federation.15

14  See, e.g., Scott Borgerson, “Arctic Meltdown,” Foreign Affairs, March/April 2008. Borgerson later walked back his earlier dire warnings. See, Scott Borgerson, “The Coming Arctic Boom,” Foreign Affairs, July/August 2013, pp. 76–89 (concerns about conflict in the Arctic are “much ado about nothing.”). 15  Russian Federation: Ministerial Decree No. 230 of 2000 regarding the formation of a database on the external boundary of the EEZ of the Russian Federation, 16 March 2000 (implements Federal Law No. 191-Ф3 of 1998 on the EEZ, 17 December 1998 [LEX-FAOC027457] and Federal Law No. 155-Ф3 on internal waters, territorial sea and contiguous zone, 31 July 1998 [LEX-FAOC027459].

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Navigation under the Northern Sea Route

The Soviet Union conducted a program of Arctic studies during the 1930s, and there was a great focus on hydrography, hydrology, permafrost, meteorology, gravity, the ionosphere, and the propagation of radio waves.16 Four expeditions took place from 1935 to 1941, and they provided data on sea ice in the water immediately north of shipping traffic lanes.17 The science of ice forecasting was particularly important to the development of the NSR, and the science expeditions studied the behavior of the ice pack and collected meteorological data.18 The Soviet Union operated both ocean-going and riverine shipping in the Arctic region. In 1947, about 95 ships sailed along the NSR; in 1948 the number was about 65.19 By the mid-1950s, between 200 and 220 ships navigated the NSR each season.20 These ships usually traveled in convoy, and the ships frequently required assistance from among the ten icebreakers along the route.21 Most vessels operated from the outer edges of the NSR and sailed in toward the center, and then out again.22 Only about ten to fifteen cargo vessels transited the entire route—mostly going from west to east.23 The NSR was considered a major economic and militarily strategic transportation network that connected a vast country that had woefully underdeveloped road systems. Today, Russian planning and activity in the region is much less militaristic than the Soviet presence was in the past, but now Moscow pursues a strategy to make the region a leader for the global economy. The country is politically invested in the Arctic region more than ever, and among Russian leaders this sense is deepening. The Northern Sea Route is the key to Russia’s maritime aspirations. The NSR is one of the principal economic drivers of Russia’s Arctic strategy. The waterway has the potential to reduce the typical transit time between Yokohama and Rotterdam by up to 3,400 miles, or about ten days of travel, compared with the route through the Suez Canal. This alternative also avoids Suez Canal fees, but incurs NSR expenses and unanticipated delays due 16  Office of Research and Reports, Central Intelligence Agency, Recent Developments in the Soviet Arctic, CIA/SC/RR 82, 13 October 1954 (Top Secret; declassified 1999), at p. 2. 17  Id. 18  Id. 19  Id., at p. 5. 20  Id. 21  Id., at p. 6. 22  Id., at p. 5. 23  Id., at p. 5.

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to weather and ice conditions. Still, the route is feasible during the summer months, and during that window of time it can increase vessel utilization, and reduce bunker costs. The NSR also provides the best access to the booming energy and industrial sectors in northern Russia, which already have contributed to increased traffic along the waterway and provided the impetus for new ice-class LNG carriers for export trade. In November 2012, the 91st meeting of the Maritime Safety Committee of the IMO adopted a new mandatory ship reporting system (Barents SRS) that had been proposed by Norway and the Russian Federation. The new system entered into force on 1 June 2013. The following categories of ships passing through or proceeding to and from ports and anchorages in the Barents SRS area are required to participate in the ship reporting system: ships of 5,000 gross tonnage or more, tankers, ships carrying hazardous cargoes, and vessels towing when the length of the tow exceeds 200 meters. Ships that are not under command, or restricted in their ability to maneuver or have defective navigational aids, must also report. Reports are submitted to the Vardø Vessel Traffic Services (VTS) center or the Murmansk VTS center. 2.1 Northern Sea Route Regulations Open water depths for the NSR vary from 20 to 200 m. Different route options require transiting one or more of the many straits along the route. The water depths in the straits are as set forth in Table 25.1.24 Marine transportation on the NSR is regulated by legislation based on the principles of UNCLOS, and in particular Article 234 concerning “Ice-covered Areas.” Article 234 authorizes coastal States within the EEZ to adopt and enforce the non-discriminatory laws and regulations for the prevention and monitoring of marine pollution from vessels in the areas covered with ice for most of the year. In January 2013, the Ministry of Transport of the Russian Federation developed and approved new rules for navigation of the NSR.25 The law was registered at the Ministry of Justice on April 12, 2013. The 2013 Rules are based on the Code of Commercial Navigation (CCN)26 and regulations issued by the

24  American Bureau of Shipping, Navigating the Northern Sea Route: Status and Guidance, January 29, 2014, p. 4. 25  Rules of Navigation on the Water Area of the Northern Sea Route, Order No. 7 of the Ministry of Transport of Russia, Jan. 17, 2013 (Hereinafter “NSR Rules”). 26  Federal Law dated April 30, 1999, No. 81-Φ3 (FL) Code of Commercial Navigation of the Russian Federation (Hereinafter “CCN”).

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TABLE 25.1 Water Depth in the Straits of the Northern Sea Route

Kara Strait (in the fairway part) Matisena and Lenina Vilkitskogo Shokalskogo Yugorskiy Shar Sannikova Dmitriya Lapteva Bering

50 m not less than 20 to 25 m 50 to 250 m 200 to 250 m 13 m 13 to 15 m 8 to 9 m 30 to 50 m

Ministry of Transport in 2004.27 These two statutory authorities establish conditions for icebreaker assistance and ice pilotage, track assistance and hydrographic and hydro-meteorological support, rules for radio communication, and navigational safety and vessel-source pollution. The NSR Administration (NSRA) was established as a Federal state institution on March 15, 2013. As a national agency, the NSRA manages vessel traffic along the route.28 Permission (or denial) for navigation is based on information provided by the shipowner in an application to the NSRA. Information includes the IMO ship number, and the applicant’s personal details and contact information.29 The sail plan, classification certificate, measurement certificate, and insurance for environmental liability are included with the application, and must be sent within 15 working days of the intended entry of the ship into the water area of the NSR.30 The Administration has authority to ensure safe navigation and protection of the marine environment from pollution throughout the waters of the NSR.31 Principal functions of the NSRA include:

27  Provision on the Transport Ministry of the Russian Federation approved by the Decision of the Government of the Russian Federation dated July 30, 2004, No. 395. 28  CCN, Art. 5. 29  NSR Rules, para. II.4. 30  NSR Rules, para. II.4(1). 31  Order of the Government of the Russian Federation № 358-p, March 15, 2013, Federal law act № 81 (April 30, 1999) p. 3 article 5.1, The merchant shipping code of the Russian Federation.

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• • • • • • • • •

Obtain and consider submitted applications and issue permissions for navigation through the NSR; Issue certificates for ice pilotage; Research weather, ice, navigational and other conditions; Coordinate installation of navigational aids and harmonize regions to carry out hydrographic surveys operations; Assist in SAR operations in the NSR; Assist in reduction of pollution from vessels; Render information services about the organization of navigation, requirements of safe navigation and others; Recommend routes of navigation and use of the icebreaker fleet based on navigational conditions; Retrieve forecast and ice analysis from Russian hydro-meteorological service concerning prevailing conditions. The 2013 NSR rules are based on the Federal Law Code for Commercial Navigation32 (CCN) and the regulation establishing the Ministry of Transport.33 The legislation sets forth rules of navigation, icebreaker assistance, rules of ice pilotage, rules on the track assistance of ships, provisions on navigational hydrographic and hydro-meteorological support, radio communication standards, and rules on vessel source pollution from ships.34 Ships that plan to make a single transit outside the specified areas and season of navigation must also produce a certificate from the classification or certification organization that approved the project.35 Ships with other vessels in tow, including floating drilling rigs, must also provide such certification from the relevant classification society.36 These documents must be submitted by email to the official Internet website of the NSR Administration not earlier than 120 calendar days and not later than 15 working days before the intended date of entry of the ship into the water area of the NSR.37 In turn, the NSRA considers the application within ten working days of its receipt.38 Within two days of that decision, the NSR Administration grants 32  Federal Law No. 81-Ф3 (CCN). 33  Provision on the Transport Ministry of the Russian Federation approved by the Decision of the Government of the Russian Federation, July 30, 2004, No. 395. 34  NSR Rules, para. 1. 35  Id., para. II.4(5). 36  Id., para. II.4(6). 37  Id., para. II.6. 38  Id., para. II.9.

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permission (or issues denial) via the Administration Internet Website, indicating the name of the ship, flag state, and IMO number.39 If permission is granted, the dates of passage, route of navigation (or operation), and information concerning the need for icebreaker assistance is provided.40 Ships granted passage are not authorized to enter the waterway earlier than the term of their permission, and must leave the waterway no later than the term of permission.41 Permission includes anticipated requirements for icebreaker assistance under heavy, medium, or light ice conditions, and throughout geographic sections divided by the southwestern part of the Kara Sea, northeastern part of the Kara sea, western part of the East Siberian Sea, eastern part of the East Siberian Sea, western part of the Laptev Sea, eastern part of the Laptev Sea, and the Chukchi Sea.42 The NSR manages ship traffic along the route. Ship owners or masters are required to seek permission for transit from the NSR. Applications for transit may be made electronically, and shall include the IMO number, family name, first name, patronymic (if any) of the applicant, contact information (phone, email, and physical address), and confirmation that the ship owner ensures compliance with the Rules of transit.43 Detailed information about the ship and voyage are attached to the application,44 along with a copy of the classification certificate, measurement certificate, and insurance or other evidence of surety or bond to cover civil liability for pollution cleanup or other damage caused by the ship.45 Ships that approach the route from the west or east are required to inform the NSR Administration about the planned time that it will cross the boundary into the waterway 72 hours in advance, or upon immediate departure from 39  Id., para. II.10(1)–(5). 40  Id., para. II.10(1)–(5). 41  Id., para. II.13. 42  Id., para. II.10(6). 43  Id., para. 3. 44  Id., Annex No. 1. The required information includes the name of the ship, flag State, call sign, identification and contact information for the ship owner, port of departure and destination, dates of transit, crew members on board, cargo to be carried, class and planned amount of dangerous cargo on board, experience of the ship master in navigation along the Northern Sea Route, at-sea contact information, such as satellite phone and email, category of ice strengthening assigned by the organization authorized for the classification and certification of ships, length and width of the ship, gross tonnage, main power plant in kW, breadth of any reinforcing ice strake of the ship, daily fuel consumption, and information about the structure of the forward end and aft end of the ship. 45  Item 4 of article 51, Federal Law No. 81-Φ3 (CCN).

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port, if arrival into the waterway will occur in less than 72 hours.46 This report entails provision of additional data, including the fresh water capacity of the ship (in days) and subsistence reserves and other supplies on board, as well as information on known machinery malfunctions.47 Yet another report is made within 24 hours of approach from the western boundary.48 Finally, the actual time of entry and exit from the waterway must be reported to the NSR Administration.49 The NSRA also tasks icebreakers to support ship transits. Ships maintain communication with designated icebreakers over VHF Channel 16, and transit is facilitated by ice reconnaissance by icebreaker, with ships sailing behind the icebreaker, either in tow or without towing during independent mode, or within a convoy.50 Icebreaker fees are determined in compliance with Item 5 of Article 5 of CCN, and “according to the legislation of the Russian Federation about natural monopolies taking into account the capacity of [the] ship, ice class of ship, distance of the escort . . . and period of navigation.”51 Ice pilots are authorized to ensure safety of navigation and to prevent accidents.52 Fee rates for ice pilots are determined under the same formula as for icebreakers, taking into account the capacity of the ship, ice classification, distance of the escort and period of navigation.53 Pilots with not less than three years of experience as master or chief mate on ships of 3,000 tons or greater give recommendations to ship masters during navigation under ice conditions, including selection of optimum routes, assessment of ice conditions, and safe speed and maneuver.54 While in transit, ships have daily reporting requirements concerning the route and estimated time of departure/arrival, speed of advance, and an itemized list of environmental measurements, such as ambient air temperature, wave height in open water, wind direction and speed, visibility, and type of ice, thickness in meters, and locations of ice concentration.55 Ships also are required to report pollution observed in the water.56

46  NSR Rules, para. II.14. 47  Id., para. II.14. 48  Id., para. II.15. 49  Id., para. II.19–.20. 50  Id., para. III.22 and Federal Law No. 81-Φ3 (CCN). 51  NSR Rules, para. III.25. 52  Id., para. IV.31. 53  Id., para. IV.32. 54  Id., para. IV.33. 55  Id., para. V.42. 56  Id., para. V.44.

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2.2 Port Security along the NSR Russia has larger and more numerous ports on the Arctic Ocean than any other state. Murmansk Oblast is the largest city north of the Arctic Circle, and the 68-meter deep-water port is over 20 miles in length. Russia also operates the world’s largest icebreaker fleet. The country is also more deeply invested in Arctic commercial and industrial development than any other state, so its state practice as a port State, coastal State, and flag State bear particular importance for the development of Arctic law. The Federal Agency for the Development of the State Border Facilities of the Russian Federation (Rosengranitsa) has announced that it wants to modernize Russia’s Arctic ports in Murmansk, Kandalaksha, Igarka and Nar’yan-Mar. The agency claims that upgrades and improvements are necessary given the increase in circumpolar oil and gas prospecting and foreign companies’ interest in Russia’s Arctic shelf. Better ports, customs facilities, and marine checkpoints would allow Russia to make sure it collects all due levies—an important point, since Russia seeks to run the Northern Sea Route as a national, not international, shipping lane. More modern ports would also be more attractive to shipping companies as trans-Arctic maritime transportation increases over the next several decades. There are seven principal ports along the NSR from the Kara Gate and Yugorskiy Shar Strait in the west to the Bering Strait in the east: Amderma, Dikson, Dudinka, Khatanga, Tiksi, Pevek, Mys Shmidta. Among these, Tiksi is the most important commercial port on the NSR. The port of Tiksi services ships on the waterway, and it is also a destination port, as it receives cargo for industry throughout the Bulunkanskiy region, and transships export cargo arriving from the interior on the Lena River. Just as in waterways for transit, entry into an ice-free port does not necessarily mean it is free of ice. Commercial ships have to manage the risks of icebergs, growlers, and “bergy bits,” even in ports that are “ice free.” 2.3 Search and Rescue Navigation throughout the NSR is inherently risky. Drift ice is present throughout the NSR. Navigation through drift ice is affected by dynamic factors, such as shearing, pressure, and compression, as well as rime icing. Close ice pressures are especially dangerous. Rivers of ice are formed by grated and repeatedly rafted young ice—often more than one mile wide—that quickly drift along the outer limits of the fixed ice. As Arctic sea ice coverage decreases, vessel and polar aviation traffic in the Russian Arctic increases. With increased traffic comes a greater potential for accidents. The entire Arctic Ocean has a dearth of search and rescue (SAR) resources, and the NSR waterway is no exception. Operational limits of SAR capacity are

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challenged by adverse weather conditions, and the remoteness of the area. A 2012 Chatham House-Lloyd’s study, for example, concluded that operations in the Arctic Ocean are fraught with “known unknowns” that will pose special challenges and introduce unpredictability.57 Rapid and disruptive change in the region presents uneven prospects for safe navigation and development, and the environmental consequences of disasters are likely to be worse than in other regions. Scientists expect climate change to make Arctic storms more severe, and a particular threat to international shipping.58 Consequently, SAR requirements are expected to grow in the coming years. All states have a duty to render assistance to mariners or aviators in distress; the customary rule is reflected in Article 98 of UNCLOS: 1.

2.

Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighboring States for this purpose.59

The MS Hans Hedtoft, a Danish liner that struck an iceberg and sank on January 30, 1959, is the last vessel to experience casualties and sink by sea ice. The ship was on her maiden voyage off the coast of Western Greenland. The only piece of wreckage ever found was a life vest that was found off the coast of Iceland. In order to avoid a repeat of this calamity, at the 2009 Ministerial Meeting of the Arctic Council in Tromsø, members established a Task Force to develop 57  Charles Emmerson, et al., Arctic Opening: Opportunity and Risk in the High North 5, 14 (Lloyd’s and Chatham House, 2012). 58  Id., at 16. 59  UNCLOS, Article 98.

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an international instrument on SAR cooperation in the Arctic Ocean. During 2009–10, the Task Force held five negotiations, which culminated in the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic. The Agreement was signed by governments on May 12, 2011 in Nuuk, Greenland, and it entered into force on January 19, 2013. The scope, terms, and definitions of the Arctic Agreement are based on the 1979 International Convention on Maritime Search and Rescue (SAR Convention) and the 1944 Convention on International Civil Aviation (Chicago Convention). The Arctic SAR Agreement also implements the provisions of the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual.60 The IMO and the International Civil Aviation Organization jointly publish the three-volume IAMSAR Manual, which provides guidance for maritime and aeronautical SAR services. Ships are required by SOLAS Chapter V Safety of Navigation to carry a current copy of Volume III (Mobile Facilities) of the IAMSAR Manual, designed for carriage aboard rescue aircraft and vessels that perform searches or serve as on-scene coordinators. The Arctic SAR Agreement is the first legally binding instrument to come out of the intergovernmental forum, as well as the first treaty negotiated solely among all the eight Arctic states. The states committed to meet “on a regular basis” to discuss and resolve issues related to cooperation.61 Each Arctic state is responsible for SAR coordination within designated areas of responsibility that combined stretch for about 13 million square miles. States parties commit to the establishment, operation, and maintenance of effective SAR capabilities within their area of responsibility, and Russia has been a leader in this regard.62 The Ministry of Transport is the competent authority under the agreement for the Russian Federation, along with the Ministry of Civil Defense, Emergency, and Elimination of Consequences of Natural Disasters.63 The Table Top Exercise focused on strategic and operational aspects of aeronautical and maritime SAR in the Arctic.64 The agreement may be politically and symbolically significant, but it has neither financially nor organizationally changed Norwegian search and rescue policy.65 It coordinates lifesaving international maritime and aeronautical SAR 60  SAR Agreement, Article 7. 61  SAR Agreement, Article 10. 62  Id., Article 3. 63  Id., Appendix I. 64  “Arctic Nations Talk Search and Rescue,” CBC News, Oct. 7, 2011. 65  See generally, Svein Vigeland Rottem, “The Arctic Council and the Search and Rescue Agreement: the case of Norway,” Polar Record 1–9 (2013).

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coverage and response among the Arctic States across an area of more than 1.3 million square miles. The SAR Agreement will improve search and rescue responses in the Arctic by committing all Parties to coordinate appropriate assistance to those in distress and to cooperate with each other in undertaking SAR operations. For each Party, the Agreement defines an area of the Arctic in which it will have lead responsibility in organizing responses to SAR incidents, both large and small. Parties to the Agreement commit to provide SAR assistance regardless of the nationality or status of persons who may need it. Under Article 8 of the Agreement, states should expedite the cross-border transit of ships and aircraft of other states as necessary to respond to a SAR incident. Article 9 of the Agreement requires the parties to carry out combined training and exercises. The first live SAR exercise (SAREX 2012) was conducted along a remote stretch of Greenlandic coastline.66 Ships and aircraft from Canada, Denmark, the Faroe Islands, Greenland, Iceland, Norway, Russia and the United States operating in stormy weather and high seas participated in the event, and the states retained command of their own assets. During the first phase of SAREX 2012, Greenland’s Maritime Rescue Coordination Centre (MRCC) attempted to locate a missing cruise ship. Once the ship was located, ship and aircraft arrived on the scene, with salvage and medical personnel flown or parachuted into the area. A large number of “injured” people were evacuated to the hospital in Reykjavik, Iceland about 500 km away. The Federal Agency for Maritime and River Transport of Russia (Rosmorrechflot) organizes SAR operations and oil spill responses along the NSR. Rosmorrechflot has authority over state services and state property control in maritime transportation, and it is responsible for the maintenance of navigational nautical charts, guides and manuals.67 The agency also ensures the installation of navigation facility equipment (NFE) and navigationalhydrographic support in the NSR. The organization operates a network of SAR centers that include Maritime Rescue Coordination Centres (MRCCs), Aeronautical Rescue Coordination Centres (ARCCs), Coast Stations (CSs), and Cospas-Sarsat Mission Control Centres (MCCs). The Marine Rescue Coordination Centers (MRCC) in Murmansk in the west and Dikson in the east lead SAR operations and oil spill response along the NSR.

66  Rear Admiral Henrik Kudsk of Iceland Command Greenland, First Live Arctic Search and Rescue Exercise—SAREX 2012, 25 Sept. 2012, . 67  NSR Rules, para. VI.46.

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The MRCC at Dikson operates throughout the entire calendar year. It maintains Marine Rescue Sub-Centers (MRSC) out of the port of Tiksi and another out of the port of Pevek. The MRCCs and MRSCs are equipped for extreme conditions and carry out functions in accordance with the International Convention on Maritime Search and Rescue at Sea, 1979, and the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual. These command centers coordinate SAR of persons in distress at sea, and work on the oil spill elimination in the Arctic zone from the Kara Gate to the Bering Strait. The Tiksi and Pevek MRSCs function only during the navigation season on a rotational basis, and their operations extend throughout the Laptev Sea, the East Siberian Sea and the Chukchi Sea. The centers employ Arctic icebreakers of the Federal State Unitary Enterprise Atomflot in the west and the Far Eastern Shipping Company Ltd. in the east. Along with Canada, France, and the United States, the Russian Federation is a charter member of the International Cospas-Sarsat Program, a satellite-based SAR distress alert detection and information distribution system. CospasSarsat locates and detects emergency beacons activated by aircraft. The program began in 1979 and was constituted as an intergovernmental organization in 1988 under the International Cospas-Sarsat Program Agreement (ICSPA). The Russian Federation replaced the Soviet Union as Party to the Agreement in January 1992. Forty-one additional states and two organizations subsequently have joined the ICSPA. The ICSPA provides accurate, reliable and time-sensitive distress alert and location data to aid SAR authorities. Cospas-Sarsat participants maintain a satellite system that detects specified or standardized distress alert transmissions from radio beacons that can be used to fix positions. The coordinating agency for the Russian Federation is the Federal State Unitary Enterprise (FSUE) Morsviazsputnik. FSUE Morsviazsputnik was founded in 1976 as Union Association Elektroradionavigatsii and Satellite Communications at the Ministry of the Navy of the USSR to provide services to the merchant vessels in satellite communication and navigation, and to participate in the International Maritime Satellite Organization (IMSO/INMARSAT). The company also participates in the GMDSS (Global Maritime Distress and Safety System), SSAS (Ship Security Alert System), the Long-Range Identification and Tracking (LRIT) program, and the National Center for Port State Control under the Paris, Tokyo and Black Sea Port State Control MOUs. Finally, FSUE operates two Coast Earth Stations. The first, near Nakhodka on the Primorsky Peninsula, once was the eastern terminus for passenger trains on the Trans-Siberian Railway and the only port in the Russian Far East open to foreigners. The other coast earth station is in the village of Narynka near the

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Moscow region, which is the ground infrastructure for the provision of mobile satellite communications. 3 Conclusion In recent years, the Russian Federation has invested funds and attention toward management of the Northern Sea Route as a national waterway of global importance. In contrast to Canada, which eschews any suggestion that the Northwest Passage could become an alternative waterway to compete with the Panama Canal, Russia is focused on making the Northern Sea Route a viable route that competes with the Suez Canal. Russia has done more to develop Arctic infrastructure than any other country, and nowhere is this approach more evident than in the NSR. Russia has adopted laws and implemented regulations to make rules associated with transit of the route more comprehensive, transparent, and in the direction of compliancy with UNCLOS. In particular, Russia has taken a rather deliberate and, in recent years, fairer approach to Article 234 concerning ice-covered areas. The revisions of Russian regulations to manage the NSR have been wellreceived by European and Asian shipping firms. Although the inception for Article 234 originated in Canada, it is Russian practice along the NSR that is giving shape to the contours of coastal State authority over ice-covered areas.

CHAPTER 26

Comments on the Three-stage Approach of Maritime Delimitation Chuanxiang SUN* Abstract In recent years, the International Court of Justice as well as various tribunals have tried to develop the three-stage approach in the juridical practice of maritime delimitation. Although the three-stage approach can provide legal certainty and predictability for the process of delimitation to a certain degree, many questions can be raised in each stage. Among these questions are the legal basis for the construction of the provisional equidistance line in the first stage, the reasons for the adjustment or shift of the provisional line in the second stage, and the problem with having the disproportionality test remain unused in the third stage.

1 Introduction In 2014, the International Court of Justice (hereafter the ICJ or the Court), following judicial precedents, applied the three-stage approach of maritime delimitation in Peru v. Chile, observing that “[T]he methodology which the Court usually employs in seeking an equitable solution involves three stages.”1 For broader considerations relating to maritime delimitation, an equitable solution can only be obtained by applying the UN Convention on *   Dr. Chuanxiang Sun, Associate Professor, Department of Politics and Law, Shaoyang University, China; and Visiting Scholar at the University of Virginia 2014–2015 academic year. Email: [email protected].  The preparation of this paper benefited from the support of Research Project No. 12CFX099 of the China Social Science Foundation and Research Project No. 12YBB227 of the Hunan Provincial Social Science Foundation. The author wishes to show the greatest gratitude to Professor John Norton Moore, Professor Myron H. Nordquist and technical editor Judith A. Ellis for their incredible help during the author’s study at the University of Virginia School of Law. 1  Maritime dispute (Peru v. Chile), Judgment of 27 January, 2014, available at http://www .icj-cij.org/docket/files/137/17930.pdf. (accessed on 2 September 2015), p. 61, para. 180.

© koninklijke brill nv, leiden, ���6 | doi ��.��63/9789004314252_028

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the Law of the Sea (UNCLOS, hereafter the Convention).2 Articles 74 and 83 of the Convention stipulate the methods of delimitation for the continental shelf and the EEZ respectively between States with opposite or adjacent coasts. However, due to the vast differences between the States advocating the delimitation by equidistance line or median line and those advocating equitable delimitation, the Convention only gives ambiguous rules for solving the delimitation of both the continental shelf and the EEZ. It provides that the delimitation “shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.”3 Tracing the judicial practices concerning maritime delimitation of the ICJ and other international tribunals over the past several decades, it is clear that the ICJ applied the three-stage approach earlier than the 2014 Peru v. Chile case. As early as 2009, the Court put forward the three-stage approach in Romania v. Ukraine. Chronologically speaking, it is reasonable to conclude that the judicial practice of international maritime delimitation has transited through a period from the result-oriented-equity approach4 to the corrective-equity approach5 which concerns some procedural norms in maritime delimitation. During this process, more explicit procedural rules were gradually formed, the most important of them being the three-stage approach for maritime delimitation. Following the introduction (section 1), this paper will feature five additional sections, dealing, respectively, with the formation of the three-stage approach (section 2), the content and judicial practice of the three-stage approach (section 3), a review of the existing problems of the three-stage approach of the ICJ and other tribunals (section 4) and the prospects for the future of the threestage approach (section 5). Finally, a number of conclusions will be drawn in section 6.

2  U.N. Convention on the Law of the Sea, opened for signature on December 10, 1982 and entered into force on November 16, 1994, 1833 U.N.T.S., 397. 3  Articles 74 and 83 of the UN Convention on the Law of the Sea. 4  Separate opinion of Judge Jimenez de Arechaga, p. 107, para. 28 in Continental Shelf (Tunisia v. Libya Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 18. 5  See Yoshifumi Tannaka, “Reflections on Maritime Delimitation in the Romania/Ukraine Case before the International Court of Justice,” Netherlands International Law Review, volume 56, issue 03, December 2009, pp. 397–427.

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2

The Formation of the Three-Stage Approach

2.1 The Result-Oriented-Equity Approach The 1969 North Sea Continental Shelf Cases6 were among the earliest cases on maritime delimitation by the ICJ. In those cases, the Court considered that each of the States should have a just and equitable share of the available continental shelf, in proportion to the length of its coastline or sea frontage. The Court observed “the use of the equidistance method of delimitation not being obligatory as between the Parties”7 and “[d]elimitation is to be effected by agreement in accordance with equitable principles.”8 Moreover, the ICJ strengthened its view that “it is necessary to seek not one method of delimitation but one goal,”9 obviously indicating that the Court did not rigidly adhere to some dogmatic methodology in maritime delimitation, but preferred the final equitable result. Again in the 1982 Tunisia v. Libya case, the ICJ developed its idea first put forward in the 1969 North Sea Continental Shelf Cases noting “[t]he principles are subordinate to the goal. The equitableness of a principle must be assessed in the light of its usefulness for the purpose of arriving at an equitable result.”10 After the 1982 Tunisia v. Libya case, the ICJ repeatedly stressed the importance of the equitable result in its judgment in the 1984 Gulf of Maine case and the 1985 Libya v. Malta case. The arbitration tribunals also emphasized the equitable result in Guyana v. Guyana Bissau (1985) and Canada v. France (1992). In all, the aforementioned cases make clear that both the ICJ and international arbitration tribunals underlined the importance of the equitable results. However, the process of how to choose and apply the rules and methods was somewhat ignored, emphasizing the result of the judgment or award but giving great flexibility to the process of maritime delimitation. As mentioned above, the judicial practice of early maritime delimitation cases showed much emphasis on the result of maritime delimitation, and tended to neglect the formation of the procedure and how to select the applicable principles or rules as well. Thus, the procedure of maritime delimitation remained subjective and it was hard to predict the results of a certain case. As Judge Gros said in his dissenting opinion on the 1984 Gulf of Maine 6  North Sea Continental Shelf Cases (Federal Republic of German v. Denmark; Federal Republic of German v. Netherlands), Judgment of February 20, 1969, available at www .icj-cij.org. (accessed on 16 April 2015). 7  Ibid., p. 53, para. 101(A). 8  Ibid., p. 53, para. 101(C)(1). 9  Ibid., p. 50, para. 92. 10  Tunisia v. Libya, supra n. 4, para. 70.

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case: “[i]t is true that many rules of international law are drafted as principles of conduct rather than norms, to interpret them in accordance with the law is one thing, whereas it is a very different matter to replace them by an equity.”11 Judge Oda also gave a similar view in his separate opinion of the 1993 Denmark v. Norway case by saying that “[i]f the Court is requested by the Parties to decide on a maritime delimitation in accordance with Article 36, paragraph 1, of the Statute, it will not be expected to apply rules of international law but will simply ‘decide a case ex aequo et bono’.”12 It is reasonable to conclude that giving too much discretion by the Parties to the ICJ and other tribunals with no objective criterion for judging would risk equating the application of the principles and rules of maritime delimitation with deciding a case ex aequo et bono.13 The Tendency to Form Some Procedural Norms in Maritime Delimitation Since Anglo-French Continental Shelf (1977), the ICJ and arbitration tribunals came to realize the defects of simply aiming for the equitable results, and began to pay attention to the application of some settled principles and norms in the process of maritime delimitation. At the beginning of that case, the Court of Arbitration decided to take an approach different from the result-orientedequity approach and confirmed that the case should apply the equidistance method. The tribunal expounded the justification for using the equidistance principle with the following observations: 2.2

The Court notes that in a large proportion of the delimitations known to it, where a particular geographical feature has influenced the course of a continental shelf boundary, the method of delimitation adopted has been some modification or variant of the equidistance principle rather than its total rejection. . . . Consequently, it seems to the Court to be in accord not only with the legal rules governing the continental shelf but also with State practice to seek the solution in a method modifying or varying the equidistance

11  See Dissenting Opinion of Judge Gros, para. 41 in the case of Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 246. 12   See Separate Opinion of Judge Oda, Maritime Delimitation in the Area between Greenland and Jan Mayan, Judgment, I.C.J. Reports 1993, p. 38. 13  See supra n. 5, p. 415.

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method rather than to have recourse to a wholly different criterion of delimitation.14 In this regard, the Court of Arbitration considered the equidistance method to be applied in the first stage of the maritime delimitation, and then a modification or variation of the equidistance line in case of special circumstances to obtain an equitable result. Thus, the Court of Arbitration in that case no longer gave emphasis on the equitable results as the ICJ did in the 1969 North Sea Continental Shelf Cases but turned to investigate the equidistance-special circumstance rule. The judgment in Denmark v. Norway (1993) can be regarded as a milestone for the ICJ in its history. In that case, the Court cited Anglo-French Continental Shelf (1977) related to the delimitation of the continental shelf noting that “[b]oth for the continental shelf and for the fishery zones in this case, it is proper to begin the process of delimitation by a median line provisionally drawn.”15 It is worth observing that, besides the emphasis the Court gave to the application of the median line, the Court used the words “process” and “provisionally” together for the first time, which indicated that the Court had begun to form a new approach with procedural process. Since then, the Arbitral Tribunal in the 1999 Eritrea v. Yemen Arbitration case16 and the ICJ in the 2001 Qatar v. Bahrain case17 and the 2002 Cameroon v. Nigeria case18 continued to use the equidistance or median line as a temporary boundary line. In the Barbados v. Trinidad and Tobago Arbitration (2006), the tribunal held that “the need to avoid subjective determinations requires that the method used start with a measure of certainty that equidistance positively ensures, subject to its subsequent correction if justified.”19 Similarly in 2007, in Nicaragua 14  Arbitration on the Delimitation of the Continental Shelf (between the United Kingdom of Great Britain and Northern Ireland and the French Republic), Decisions of the Court of Arbitration dated 30 June 1977 and 14 March 1978, reprinted in 18 ILM, 1979, para. 249. 15  Denmark v. Norway, supra n. 12, para. 53. 16  Award of the Arbitral Tribunal in the Second Stage of the Proceedings of Maritime Delimitation between Eritrea and Yemen (Phase II), 1999, reprinted in 40 ILM, 2001, para. 131. 17  Maritime Delimitation and Territorial Question between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 40, para. 220. 18  Land and Maritime Boundary between Cameroon and Nigeria. (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 303. para. 290. 19  Permanent Court of Arbitration: in the Matter of an Arbitration between Barbados and the Republic of Trinidad and Tobago, April 11, 2006, reprinted in 45 ILM 800, 2006, para. 306.

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v. Honduras, due to the special geographical circumstances, the ICJ decided not to apply the equidistance line according to the exception provided for in Article 15 of the Convention, but the Court reiterated that “[A]t the same time equidistance remains the general rule”.20 Subsequently, the arbitral tribunal in the 2007 Guyana v. Suriname case restored the use of the equidistance line as the provisional boundary. In Nicaragua v. Columbia (2012), the ICJ went so far as to call the equidistance method the “usual methodology.”21 The ICJ and some tribunals, in their judicial practices of maritime delimitation, gradually shifted their attention from applying the result-oriented-equity approach to forming some certain procedural pattern, that is, to make a provisional equidistance line as a temporary boundary line at the beginning of the maritime delimitation process. In this context, the “step by step” procedure of maritime delimitation has become increasingly concrete and clear. 2.3 The Eventual Formation of the Three-stage Approach Generally, the genesis of the theory of the three-stage approach can be traced back to Libya v. Malta (1985). In that case, the ICJ mentioned the concept of “by stages” for the first time. The Court noted that “[I]n applying the equitable principles thus elicited, within the limits defined above, and in light of the relevant circumstances, the Court intends to proceed by stages”.22 Once again, in 1993, in Denmark v. Norway, the ICJ made reference to the delimitation by stages by pointing out that “[i]t is appropriate to have recourse to a median line provisionally drawn as a first stage in the delimitation process, the Court now turns to the question whether the circumstances of the present case require adjustment or shifting of that line.”23 The Court also said, “[i]t is in accord with precedents to begin with the median line as a provisional line and then to ask whether ‘special circumstances’ require any adjustment or shifting of that line.”24 Here, the Court not only used the word “stage” but also described the stage in more detail with the words “begin”, “provisional” and “then”, which strongly suggested that the Court wanted to approach the process of maritime delimitation “by stages”. In Bahrain v. Qatar (2001), the ICJ once more analyzed 20  Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports, 2007, p.659, para. 281. 21  Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment, I.C.J. Reports 2012, p. 624, para. 198. 22  Continental Shelf (Libya Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 13, para. 60. 23  Denmark v. Norway, Judgment of 14 June 1993, para. 59. 24  Ibid., para. 51.

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the process in the similar way that “[T]he most logical and widely practiced approach is first to draw provisionally an equidistance line and then to consider whether that line must be adjusted in the light of the existence of special circumstances.”25 It is notable that the Court in that case used the associated words “first” and “then”, which signaled the approach of “by-stage”. Based on the above cases, in Guyana v. Suriname (2007), the Permanent Court of Arbitration proposed for the first time the two-stage approach. The court held that “[T]he process of delimitation is divided into two stages. First the court or tribunal posits a provisional equidistance line which may then be adjusted to reflect special or relevant circumstances.”26 Thus, the twostage approach came to state practice, providing the foundation for the three-stage approach. The three-stage approach is generally considered to be fully formed in the 2009 Romania v. Ukraine case. In that case, the Court for the first time put forward the full-fledged elements of the three-stage approach of maritime delimitation, pointing out that “[W]hen called upon to delimit the continental shelf or exclusive economic zones, or to draw a single delimitation line, the Court proceeds in defined stages.”27 The Court continued, “First, the Court will establish a provisional delimitation line, using methods that are geometrically objective and also appropriate for the geography of the area in which the delimitation is to take place.”28 It added that “[a]t the next, second stage [the Court will] consider whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result.”29 Lastly, the Court said, at a third stage, the Court would verify whether the adjusted or shifted line “does not, as it stands, lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line.”30 Although the Court in that case did not directly specify the concept of “three-stage approach” but used the words “defined stages”, “first”, “second phase” and “a third stage”, the three-stage approach was substantively formed, as the Court added the stage 25  Qatar v. Bahrain, supra n. 17, para. 176. 26  Arbitration between Guyana and Suriname, Decision of 17 September 2007, available at www.pca-cpa.org. (accessed on 20 April 2015), para. 335. 27  Maritime Delimitation in the Black Sea (Romania/Ukraine), Judgment, I.C.J. Reports 2009, p. 61, para. 115. 28  Ibid., para. 116. 29  Ibid., para. 120. 30  See ibid., para. 122.

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of verification of “any marked disproportion” to the two-stage approach, which was developed by the Permanent Court of Arbitration in Guyana v. Suriname. Without a doubt, the three stages of maritime delimitation are clearly established in that way. In 2012, the International Tribunal for the Law of the Sea (ITLOS) officially used the concept of a “three-stage approach” in Bangladesh v. Myanmar for the first time. In that case, the tribunal clearly articulated that it “will follow the three-stage approach, as developed in the most recent case law on the subject.”31 In the same year, the ICJ noted in Nicaragua v. Columbia that [T]he Court has made clear on a number of occasions that the methodology which it will normally employ when called upon to effect a delimitation between overlapping continental shelf and exclusive economic zone entitlements involves proceeding in three stages.32 . . . . Accordingly, the Court will proceed in the present case, in accordance with its standard method, in three stages, beginning with the construction of a provisional median line.33 In that case, obviously, the ICJ not only delineated the complete form of “the three-stage approach” but also, furthermore and absolutely, regarded “the three-stage approach” as “standard method”, which underscored the importance of the three-stage approach in the process of maritime delimitation. In 2014, in Peru v. Chile, the ICJ once again applied the three-stage approach, and considered the three-stage approach to be “the methodology which the Court usually employs.”34 3

The Content and Judicial Practice of the Three-Stage Approach

Viewed as a whole, the three-stage approach starts with constructing a provisional median line, unless there are compelling reasons preventing that, and then an adjustment or shift will be given to it according to the relevant 31  Judgment of Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, International Tribunal for the Law of the Sea, 2012, available at www.itlos.org. (accessed on 20 April 2015), para. 240. 32  Nicaragua v. Colombia, supra n. 21, para. 190. 33  Ibid., para. 199 (emphasis added). 34  Peru v. Chile, supra n. 1, para. 180.

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circumstances. In the third stage, the Court or tribunal will conduct a disproportionality test. According to the judgments and awards of the ICJ and other tribunals, the three-stage approach can be generally described in further detail as follows. In the first stage, the Court or tribunal will establish a provisional delimitation line between the coasts of the Parties. In this stage, the Court or tribunal will use methods that are geometrically objective and appropriate for the geography of the area, based on the geography of the Parties’ coasts and mathematical calculations. Generally, the task at this stage will consist of the construction of an equidistance line, where the relevant coasts are adjacent, or a median line between the two coasts, where the relevant coasts are opposite, unless in either case there are compelling reasons why the establishment of such a line is not feasible.35 In the 2009 Romania v. Ukraine case, the ICJ stated: “In keeping with its settled jurisprudence on maritime delimitation, the first stage of the Court’s approach is to establish the provisional equidistance line.”36 Similarly, in the 2012 case Bangladesh v. Myanmar ITLOS also pointed out that “[a]t the first stage it will construct a provisional equidistance line, based on the geography of the Parties’ coasts and mathematical calculations.”37 After the provisional equidistance line or median line has been constructed in the first stage, the Court or tribunal will proceed to the second stage of the process. In this stage, the Court or tribunal will consider whether there are any relevant circumstances requiring adjustment of the provisional equidistance or median line so as to achieve an equitable result. If the Court or tribunal concludes that such circumstances are present, it will establish a different line which usually entails such adjustment or shifting of the equidistance or median line as is necessary to take account of those circumstances.38 As early as 1985, before the final formation of the three-stage approach, the ICJ pointed out in Libya and Malta that “[T]he median line drawn in this way is thus only provisional. Were the Court to treat it as final, it would be conferring on the equidistance method the status of being the only method the use of which is compulsory in the case of opposite coasts.”39 In the 2001 Bahrain 35  See Nicaragua v. Colombia, supra note 21, para. 191. See also, Nicaragua v. Honduras, supra note 18, para. 281; Romania v. Ukraine, supra n. 23, para. 116. 36  Romania v. Ukraine, supra n. 27, para. 118. 37  Bangladesh and Myanmar, supra n. 31, para. 240. 38  See Nicaragua v. Colombia, supra n. 21, para. 192. See also, Libyan v. Malta, supra n. 22, para. 63; Romania v. Ukraine, supra n. 25, paras. 119–121. 39  Libya v. Malta, supra n. 22, para. 63.

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v. Qatar case, after the ICJ drew the provisional equidistance line, it likewise turned to the adjustment of the equidistance line. The Court noted that “[T]he Court now turns to the question of whether there are special circumstances which make it necessary to adjust the equidistance line as provisionally drawn in order to obtain an equitable result. . . .”40 Comparable ideas can also be found in the 2012 case, Bangladesh v. Myanmar. There the Tribunal observed that “[O]nce the provisional equidistance line has been drawn, it will proceed to the second stage of the process, which consists of determining whether there are any relevant circumstances requiring adjustment of the provisional equidistance line.”41 And also in the 2012 Nicaragua v. Columbia case, the Court said, “In the second stage, the Court considers whether there are any relevant circumstances which may call for an adjustment or shifting of the provisional equidistance/median line so as to achieve an equitable result.”42 In the third stage, the Court or tribunal will conduct a disproportionality test in which it assesses whether the effect of the line, as adjusted or shifted, is that the Parties’ respective shares of the relevant area are markedly disproportionate to their respective relevant coasts.43 Undoubtedly, the three-stage approach has evolved on the basis of the two-stage approach, applying a disproportionality test to the modified or shifted equidistance line in the third stage. In 2009, the ICJ expressed its idea of the third stage in Romania v. Ukraine. After the first two stages, the Court said, “Finally, and at a third stage, the Court will verify that the line does not, as it stands, lead to an inequitable result by reason of any marked disproportion.”44 Again in the 2012 Bangladesh v. Myanmar case, ITLOS expounded: “At the third and final stage in this process the Tribunal will check whether the line, as adjusted, results in any significant disproportion. . . .”45 And in like manner, after the decision of the first two stages in the 2012 Nicaragua v. Columbia case, the Court stated: “[T]he Court now turns to the third stage in its methodology, namely testing the result achieved by the boundary line described in the preceding section.”46

40  Qatar v. Bahrain, supra note 17, para. 217. Similar discourse can be found in Denmark v. Norway, supra n. 12, para. 50, para. 54. 41  Bangladesh and Myanmar, supra n. 31, para. 240. 42  Nicaragua v. Colombia, supra n. 21, para. 192. 43  See Nicaragua v. Colombia, supra n. 21, para. 193. See also, Denmark v. Norway, above n. 12, para. 64; Romania v. Ukraine, supra n. 27, para. 122. 44  Romania v. Ukraine, supra n. 27, para. 122. 45  Bangladesh and Myanmar, supra n. 31, para. 240. 46  Nicaragua v. Colombia, supra n. 21, para. 239.

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4

A Review of the Three-Stage Approach

Almost four decades have passed since the beginning of the formation of the three-stage approach employed by the ICJ or arbitral tribunals, but the practice of the three-stage approach has matured for less than 10 years. A review of the application of the “three-stage approach” of the ICJ and arbitral tribunals reveals that there are many issues worthy of reflection and discussion. The Provisional Equidistance or Median Line Drawn Indiscriminately in the First Stage Although the ICJ and arbitration tribunals both stressed that the provisional line should be drawn according to the geography of the coastline of the Parties and relevant data, the provisional line still seemed to be the old equidistance or median line, forsaking consideration of many factors the ICJ or tribunals could have scrutinized. Just as the ICJ stated in the 2009 Romania v. Ukraine case, “At this initial stage of the construction of the provisional equidistance line the Court is not yet concerned with any relevant circumstances that may obtain and the line is plotted on strictly geometrical criteria on the basis of objective data.”47 Again in 2012, in Nicaragua v. Columbia, when the Court turned to the methodology to be employed in effecting the delimitation, both Parties expressed markedly different views. Nicaragua argued that the geographical context is so peculiar that it would not be appropriate for the Court to establish a provisional equidistance or median line. For Nicaragua, the provisional equi­distance or median line would ignore the fact that the west-facing coasts of San Andrés, Providencia and Santa Catalina are less than one twentieth the length of the mainland coast of Nicaragua and the islands which would be used in the construction of the provisional equidistance/median line and are situated at a considerable distance from one another.48 Unfortunately, no matter how hard Nicaragua fought for its point of view, the Court in that case determined that all the factors argued by Nicaragua were factors to be considered in the second stage of the delimitation process. The Court took it for granted that the factors argued by Nicaragua “[d]o not justify discarding the entire methodology and substituting an approach in which the starting point is the construction of enclaves for each island, rather than the construction of a provisional median line.”49 As one writer observed, the Court’s statement implies that, in the view 4.1

47  Romania v. Ukraine, supra n. 27, para. 118. 48  See Nicaragua v. Colombia, supra n. 21, paras. 185–6. 49  Ibid., para. 196.

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of the Court, to disregard the provisional equidistance or median line amounts to discarding the entire method.50 Actually, the geography and environment of the Parties’ coasts vary greatly from case to case, whether adjacent or opposite to each other, so it is naturally improper for the Court or tribunals to use the equidistance or median line as the provisional boundary indiscriminately in every case. Early in Libya v. Malta the ICJ already realized that “[t]he drawing of a median line constitutes an appropriate first step in the delimitation process, [and] should not be understood as implying that an equidistance line will be an appropriate beginning in all cases.”51 In 2007, the ICJ affirmed in Nicaragua v. Honduras that the equidistance method is widely used in the practice of maritime delimitation, and it has a certain intrinsic value because of its apparent scientific character and the relative ease with which it can be applied. But it pointed out at the same time that “the equidistance method does not automatically have priority over other methods of delimitation and, in particular circumstances, there may be factors which make the application of the equidistance method inappropriate.”52 A similar idea can also be found expressed by the Court in 2012 in Nicaragua v. Colombia when it said: “The three-stage process is not, of course, to be applied in a mechanical fashion and the Court has recognized that it will not be appropriate in every case to begin with a provisional equidistance/median line.”53 However, recent judicial practices show that, in most of the cases, the ICJ or arbitral tribunals preferred to apply a provisional equidistance or median line in the first stage of the three-stage approach. Thus, constructing a provisional equidistance/median line without adequate consideration of the geographical context and other special circumstances in the first stage, could lead to a severe disproportionality which is not easily remedied in the second stage, let alone in the third stage. Indeed, the starting point and the base points of the provisional equidistance/median line in some cases can be quite questionable. In the 2014 Peru v. Chile case, the Court confirmed that an agreed single maritime boundary exists between the Parties, and that the boundary starts at the intersection of the parallel of latitude and continues for 80 nautical miles along that parallel. The Court thereafter determined the course of the maritime boundary from that point on.54 [See below, Figures 26.A and 26.B]. It is quite amaz50  See Jianjun Gao, “A Note on the Nicaragua v. Colombia Case,” Ocean Development & International Law, 44: 219–234, 2013. 51  Libya v. Malta, supra n. 22, para. 77. 52  Nicaragua v. Honduras, supra n. 20, para. 272. 53  Nicaragua v. Colombia, supra n. 21, para. 194. 54  See Peru v. Chile, supra n. 1, para. 177.

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ing that the Court, for the first time, regarded a point on the water surface as the starting point for a provisional equidistance line. Substantially speaking, the equidistance line stemmed itself from the delimitation of territorial sea which is stipulated in Article 15 of the Convention. That article provides that the median line is “every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured” (emphasis added). However, in Peru v. Chile, it is difficult to assert that every point of the provisional equidistance line starting with point A is equidistant from the nearest points on the baselines of both Peru and Chile. The reason is that each base point of the Peruvian coast cannot be matched with that of the Chilean coast. For instance, the Court considered that the nearest initial base point on the Chilean coast would be situated near the starting point of the existing maritime boundary between Chile and Peru. However, it made Peru’s nearest initial base point “on the Peruvian coast at a point where the arc of a circle with an 80-nautical-mile radius from Point A intersects with the Peruvian coast.”55 Obviously, according to the map, the nearest initial base point of the provisional equidistance line on the Peruvian coast cannot match the initial base point of the Chilean coast at all. The former is 80 nautical miles away from the starting point of the existing maritime boundary while the latter is located near the starting point. Taken as a whole, every point of the provisional equidistance line is not equidistant from the nearest points on the baselines of the Parties. No wonder the Court decided on the single maritime boundary in that case only by ten votes to six. Six of sixteen Judges voted against the decision, unprecedented in any other cases in the history of the ICJ. Actually, in view of the entirety of relevant evidence presented to the Court, the agreed boundary between the Parties only extends to a distance of 80 nautical miles along the parallel (the straight line between the starting point on the land boundary and point A in the Court’s sketch-map 3), see Figure 26.A. What the Court should have done is to decide the left maritime area by constructing a provisional equidistance line, with the reciprocal baselines of both Parties well-considered. Thus, the task of the Court is to demarcate the area beyond 80 nautical miles but within 200 nautical miles. The right approach for the Court would have been to construct a provisional equidistance line regardless of the existing boundary. The maritime area of each Party obtained in the end should consist of the area within 80 nautical miles delimited by the existing boundary and the area delimited by the equidistance line beyond 80 nautical miles but within 200 nautical miles. 55  Peru v. Chile, supra n. 1, para. 185.

FIGURE 26.A

Sketch-map No. 3, Construction of the provisional equidistance line from the ICJ Peru v. Chile Judgment of 27 January 2014, page 64, in color at http://www.icj-cij.org/docket/files/137/17930.pdf.

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FIGURE 26.B

Sketch-map No. 2, Maritime boundary lines. The maritime area beyond 80 nautical miles but within 200 nautical miles should have been delimited by the red equidistance line. ICJ Peru v. Chile Judgment of 27 January 2014, page 16, in color at http://www.icj-cij.org/docket/files/137/17930.pdf.

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Query of the Reasons and Basis of the Adjustment or Shift of the Provisional Equidistance/Median Line Due to the lack of consideration of the relevant special circumstances in the first stage of the maritime delimitation, it is necessary for the ICJ and other arbitral tribunals to adjust or modify the provisional equidistance/median line in the second stage. Nevertheless, the ICJ and tribunals have not yet formed a set of consistent rules to be applied in such a procedure of adjustment and modification. First of all, the parameter in which the equidistance/median line is constructed is quite questionable. In the 1985 Libya v. Malta case, the ICJ supposed “for the sake of argument, that the Maltese islands were part of Italian territory, and that there was a question of the delimitation of the continental shelf between Libya and Italy, within the area to which this Judgment relates.”56 Then the Court set the boundary as an extreme limit for any northward displacement of the notional median line, which on the hypothesis of a delimitation between Italy and Libya would be on the basis of equidistance.57 It seems that in that case, the Court defined its task as seeking a line between the median line between Sicily and Libya and the median line between Malta and Libya.58 Since Malta is itself an independent State and totally different from any other State, why did the Court compare Malta with Italy? The main reason indicated by the Court might be the “considerable” or “great” disparity in the lengths of the relevant coasts of the two Parties, i.e., the much longer length of Libya’s coasts relative to Malta’s,59 but such thinking is very unconvincing. Moreover, what the Court failed to explain, or even imply, was how it proceeded from its allegedly relevant circumstances to the particular line which is 18° north of the Maltese/Libyan median line. Secondly, it is also quite questionable which factors would lead to the adjustment or shift of the provisional equidistance/median line. The ICJ observed in the 1993 Denmark v. Norway case that “taking account of the disparity of coastal lengths does not mean a direct and mathematical application of the relationship between the length of the coastal front of eastern Greenland and that of Jan Mayen.”60 Obviously, what the Court meant was that the Court would not adjust or shift the provisional equidistance/median line simply based on the length of the coastline of the Parties. The Permanent Court of 4.2

56  Libya v. Malta, supra n. 22, para. 72. 57  Ibid., para. 78. 58  See Dissenting Opinion of Judge Schwebel, Libya v. Malta, supra n. 22, p. 180. 59  See ibid., p. 181. 60  Denmark v. Norway, supra n. 12, para. 69.

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Arbitration made a similar observation in 2006 in Barbados v. Trinidad and Tobago noting: “[T]his is not, however, because the ratio of the parties’ relative coastal length might require that the determination of the line of delimitation should be based on that ratio or on some other mathematical calculation of the boundary line.”61 The Court elaborated its idea by saying that “[D]elimitation rather requires the consideration of the relative length of coastal frontages as one element in the process of delimitation taken as a whole.”62 In the 2009 Romania v. Ukraine case, the ICJ also observed that “[T]he continental shelf and exclusive economic zone allocations are not to be assigned in proportion of respective coastlines.”63 On the basis of the above ideas and observations made by the Court and various tribunals, what is important in the Court’s view, however, is that the length of the coastline is not the sole basis for the Court or tribunal to adjust or shift the provisional equidistance line. Nevertheless, the exact factors that the Court or tribunal commonly used in their decisions or awards varied greatly from case to case. Nobody, including the Court or tribunals themselves can ascertain accurate methodology drawing from the past jurisprudence. Thirdly, the calculation method of the relevant length of coastline and associated maritime area needs to be further clarified. In general, the lengths of the coastline between the parties is itself quite arguable as using different method to determine the baseline points will result in different lengths of the coastlines. As the ICJ noted in Romania v. Ukraine (2009): Diverse techniques have in the past been used for assessing coastal length, with no clear requirements of international law having been shown as to whether the real coastline should be followed, or baseline used, or whether or not coasts relating to internal waters should be excluded.64 All in all, it is the Court that ultimately determines the coastline. For instance, in the 2012 Nicaragua v. Colombia case, Nicaragua suggested that the maximum length of its coast be 701 km. Colombia accepted that the relevant Nicaraguan coast comprised the mainland coast of Nicaragua and the Nicaraguan islands, but Colombia only accepted that Nicaragua’s coast had a length of 453 km by using the straight line system.65 However, the Court finally decided that 61  Barbados v. Trinidad and Tobago, supra n. 19, para. 236. 62  Ibid., para. 328. 63  Romania v. Ukraine, supra n. 27, para. 211. 64  Romania v. Ukraine, supra n. 27, para. 212. 65  See Nicaragua v. Colombia, supra n. 21, para. 144.

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“[T]aking the general direction of this coast, its length is approximately 531 km.”66 But the Court did not make clear what methods or formulas were used to determine the exact length of Nicaragua’s coastline. This is a serious defect in its rationale in the case. In the 2014 Peru v. Chile case sketch-map 3[above, Figure 26.A], both the base points and coastline of Peru can hardly match with those of Chile, for the Court selected only two base points on the Peruvian coastline but six base points on the Chilean coastline. Moreover, both of the base points of Peru are situated much farther away from the endpoint of the land frontier on the continental coastline between the Parties than any base points of Chile. Finally, there is a great flexibility shown in the case law to adjust the provisional equidistance line. In Nicaragua v. Columbia (2012), the ICJ found that the comparative length of coastline in the western relevant area was too obvious, and the Court decided to adjust the provisional equidistance line in the second stage in order to obtain an equitable result. The Court considered in that case that “an equitable result is achieved in this part of the relevant area by giving a weighting of one to each of the Colombian base points and a weighting of three to each of the Nicaraguan base points.”67 However, as a matter of fact, the ratio of coastal lengths between Nicaragua and Colombia in the relevant area is 8.2:1, which is quite different from the ratio of the maritime area of the Parties. In this regard, Judge Xue queried the Court by asking “whether this is a shifting of the provisional median line or rather a reconstruction of a new line by 3:1 ratio between the base points of the Parties.”68 Judge Xue also pointed out that: “The boundary in these two sections is apparently drawn by different methods—enclaving and latitude line. It is hard to justify them as ‘adjustment of’ or ‘shifting from’ the provisional median line, if the latter does not mean total departure.”69 However, as to the reason and basis of its adjustment in that case, the Court’s decision was silent, only noting that “the cut-off effect is a relevant consideration which requires adjustment or shifting of the provisional median line in order to produce an equitable result.”70 In addition, the Court also believed that from the extreme northern point of the simplified weighted line (point 1), the line of delimitation would follow the parallel of latitude until it reached the 200-nautical-mile limit from the baseline from which the 66  Nicaragua v. Colombia, supra n. 21, para. 145. 67  Nicaragua v. Colombia, supra n. 21, para. 234. 68  Declaration of Judge Xue in Nicaragua v. Colombia, supra n. 21, para. 5. 69  Ibid., para. 8. 70  Nicaragua v. Colombia, supra n. 21, para. 215.

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territorial sea of Nicaragua was measured. From the extreme southern point of the adjusted line (point 5), the line of delimitation would run in a south-east direction until it intersected with the 12-nautical-mile envelope of arcs around South Cay of Albuquerque Cay (point 6).71 For the two horizontal lines constructed by the Court, Judge Abraham pointed out in his separate opinion that “it is hard to regard these two horizontal lines as a mere ‘adjustment’ or even ‘shifting’ of the provisional line.”72 Thus, it is quite debatable whether there are settled rules for the adjustment or shift of the provisional equidistance/ median line in the second stage of the three-stage approach. 4.3 What is a Significant Disproportionality? According to the theory of the three-stage approach, the ICJ and the arbitral tribunals shall not give a second adjustment or shifting to the provisional equidistance line in the third stage unless there is “a significant disproportionality” between the ratio of the respective coastal lengths and the ratio of the relevant maritime areas allocated to each Party. As the Court said in the 1985 Libya v. Malta case: . . . to use the ratio of coastal lengths as of itself determinative of the seaward reach and area of continental shelf proper to each Party, is to go far beyond the use of proportionality as a test of equity, and as a corrective of the unjustifiable difference of treatment resulting from some method of drawing the boundary line. If such a use of proportionality were right, it is difficult indeed to see what room would be left for any other consideration.73 The concept of disproportionality is derived from the notion of proportionality in the 1969 North Sea Continental Shelf Cases. In that case, Denmark, Netherlands and Germany are three States with coastlines of almost equivalent length. In order to gain an equitable result on account of the concave or convex coastlines of the Parties, the ICJ in that case developed the principle of proportionality as a way to adjust the equidistance line to correct the unfair results caused due to the shape of the coastlines. However, one of the marked features of the North Sea Continental Shelf Cases, inter alia, is that the delimitation was made between three adjacent Parties. Thus it is quite arguable whether it is possible or appropriate to apply the principle of proportionality 71  See Nicaragua v. Colombia, supra n. 21, para. 213. 72  Separate Opinion of Judge Abraham in Nicaragua v. Colombia, supra n. 21, para. 32. 73  Libya v. Malta, supra n. 22, para. 58.

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between opposite States. If “yes”, what are the bases and rationale for its application between opposite States and how can one use it properly? The arbitration tribunal in Barbados v. Trinidad and Tobago (2006) referred to the “proportionality test” being used as “a final check upon the equity of a tentative delimitation to ensure that the result is not tainted by some form of gross disproportion.”74 In Romania v. Ukraine (2009), the ICJ pronounced that various tribunals, and the Court itself “have drawn different conclusions over the years as to what disparity in coastal lengths would constitute a significant disproportionality which suggested the delimitation line was inequitable and still required adjustment.”75 Those words seem to mean that the difference to a certain degree between the ratio of the coastal length and the ratio of relevant maritime area is normal and acceptable. Only when there is a “significant”76 or “gross”77 disproportionality between the ratio of the respective coastal lengths and the ratio of the relevant maritime areas allocated to each Party, or the Parties’ respective shares of the relevant area are “markedly disproportionate”78 to the lengths of their relevant coasts, will the Court or tribunals give a second adjustment or shifting of the boundary in the third stage. But the Court or tribunal themselves have never given a clear explanation of the criterion of “significant”, “gross” or “markedly”. Just as the Court noted in the 2012 Nicaragua v. Columbia case: “What constitutes such a disproportionality will vary according to the precise situation in each case.”79 The Tribunal also observed in the 2012 Bangladesh v. Myanmar case that its adjusted delimitation line allocated approximately 111,631 square kilometers of the relevant area to Bangladesh and approximately 171,832 square kilometers to Myanmar. The Tribunal did not think that this ratio led to any significant disproportion as the ratio of the allocated areas was approximately 1:1.54 in favor of Myanmar but the ratio of the coastline was 1:1.42.80 However, in Denmark v. Norway (1993), the ratio of relevant coasts was approximately 1:9 in Denmark’s favor,81 but the description in the Judgment and the depiction of the boundary on the maps attached thereto 74  Barbados v. Trinidad and Tobago, supra n. 19, para. 238. 75  Romania v. Ukraine, supra n. 27, para. 213. 76  Bangladesh and Myanmar, supra n. 31, para. 240, para. 497, para. 499; also Romania v. Ukraine, supra n. 27, para. 213. 77  Barbados v. Trinidad and Tobago, supra n. 19, para. 238. 78  Peru v. Chile, supra n. 1, para. 180. 79  Nicaragua v. Colombia, supra n. 21, para. 240. 80  See Bangladesh and Myanmar, supra n. 31, para. 499. 81  See Denmark v. Norway, supra n. 12, para. 61.

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showed that the ratio of relevant maritime area was approximately 1:2.7 in Denmark’s favor. Nevertheless, the Court did not consider the result to be significantly disproportionate. By this token, the Court held that there was no significant disproportionality between the ratio of coastal length 1:1.42 and the ratio of maritime area 1:1.54. But why was there no significant disproportionality between the ratio of coastal length 1:9 and the ratio of maritime area 1:1.27 in the 1993 Denmark v. Norway case, or between the ratio of coastal length 1:8.2 and the ratio of maritime area 1:3.44 in the 2012 Nicaragua v. Colombia case? So far, according to the juridical practices of the ICJ and the various tribunals, no adjustment or shift has been given to the boundary which was determined in the second stage on account of “a significant disproportionality” between the ratio of the coastal length and the relevant maritime area of the Parties. The main reasons may arise from the following two aspects: On the one hand, the provisional equidistance line in the first stage is, to some extent, constructed according to the geography of the Parties’ coasts and mathematical calculations, so the State with a longer coastline will in general receive a larger maritime area than the State with a shorter coastline; on the other hand, in the second stage, the Court or tribunals will consider whether there are any relevant circumstances to justify an adjustment or shift to the provisional equidistance line. Thus, there will be little latitude for the Court or tribunal to adjust or shift the boundary once more after a second consideration. 5

The Prospects for the Future of the Three-Stage Approach

The Roles Played by the Equidistance/Median Line and Equitable Principle Respectively Should Be Balanced There is no doubt that there is a great variety of geographical situations for different coastal States as each case has its unique features. Since the Truman Proclamation of September 28, 1945, the argument has been raised that the geographical features varied so greatly that it was difficult to posit fixed rules governing the establishment of maritime boundaries between States.82 During the early period of formation of the three-stage approach, the idea of the uniqueness of different coastlines was repeatedly and strongly supported by the ICJ and different arbitral tribunals. As far back as the 1982 Tunisia v. Libya case, the Court propounded that “[C]early each continental shelf case 5.1

82  See L.D.M. Nelson, “The Roles of Equity in the Delimitation of Maritime Boundaries,” American Journal of International Law, vol. 84, No. 4 (Oct., 1990), p. 838. (837–858)

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in dispute should be considered and judged on its own merits, having regard to its peculiar circumstances.”83 This identified the uniqueness of every continental shelf and emphasized that the specific merits of each case should be taken into consideration. In the Gulf of Maine (1984), the ICJ took up the same theme by saying that “[t]he most appropriate criteria, and the method or combination of methods most likely to yield a result consonant with what the law indicates, can only be determined in relation to each particular case and its specific characteristics.”84 Similarly, the Tribunal in the 1985 Guinea v. GuineaBissau case reiterated that “[e]ach case of delimitation is a unicum. . . . They result from the circumstances of each particular case and, in particular, from characteristics peculiar to the region.”85 Since there is such great diversity in the coastlines of different States, the equidistance/median line should not be applied in the first stage regardless of the uniqueness of the various coastlines. Actually, the ICJ and other tribunals again and again repeated that the method used in the delimitation should aim to get an equitable result, therefore, only when an equitable result can be obtained should the method of equidistance/median line be applied, or it will constitute a grave breach of international law. In the Gulf of Maine, the ICJ pronounced that “[d]elimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result.”86 As described in section 2 of this article, from the very early period to the present time, both the ICJ and various tribunals stuck to the idea of an equitable result. Consequently, the ICJ and other tribunals should balance the roles played by the equidistance/median line and equitable principle respectively in the maritime delimitation. It will be more appropriate to apply methods other than the equidistance/median line when the equitable result is nearly impossible to achieve. In other words, the Court or tribunals should be more cautious in applying the equidistance/median line in the first stage, and let exceptional cases determine their own methods of delimitation.

83  Tunisia v. Libya, supra n. 4, para. 132. 84  Canada v. United States of America, supra n. 11, para. 81. 85  Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, Award of February 14, 1985, reprinted in 25 ILM (1986), para. 89. 86  Canada v. United States of America, supra n. 11, para. 112.

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Using a “Proportionality Test” Instead of the “Disproportionality Test” and Making Full Use of it in the Third Stage It is significant that before Libya v. Malta (1985), the ICJ usually referred to a “test of proportionality”. However, the wording has changed rapidly into a “disproportionality test” since then. From the perspective of the language, it seems that in using the word “disproportionality”, the Court or tribunal will act much more negatively in testing the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line. With the change of the language, the concept of proportionality in maritime delimitation seems to become less important in the juridical practice of the ICJ and the various tribunals. It seems that only when there is a significant or gross disproportionality will the Court or tribunals give a second adjustment or shift to the delimitation line in the third stage. However, given an overall survey of the recent judicial practice, it seems as if the ICJ and various tribunals only regarded the third stage as a procedure in the course of maritime delimitation, because they have never given a further adjustment or shift after the first two stages. In the 2006 Barbados v. Trinidad and Tobago case, the tribunal noted that in applying proportionality as a relevant circumstance, the decisions of the ICJ kept well away from a purely mathematical application of the relationship between coastal lengths and “proportionality rather has been used as a final check upon the equity of a tentative delimitation to ensure that the result is not tainted by some form of gross disproportion.”87 That is to say, the ICJ and arbitral tribunals will never adjust the line confirmed in the second stage until the result is tainted by some form of gross disproportion. But, it is a great pity that so far the ICJ and arbitral tribunals have never expressed or defined the standard for “gross” or “significant”. Thus, for the sake of achieving an equitable result, the pro­portionality test might well be applied in the third stage instead of the disproportionality test. 5.2

6 Conclusion From Romania v. Ukraine in 2009 to Peru v. Chile in 2014, jurisprudence in the domain of maritime delimitation provides us some perspective on the practices of the three-stage approach applied by the ICJ and tribunals. It is very interesting that it was the Court or tribunals that made international 87  Barbados v. Trinidad and Tobago, supra n. 19, para. 238.

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law in their judgments or awards,88 especially with respect to the three-stage approach in recent years. On the basis of the above, the following two conclusions can be offered. On the one hand, reflecting upon the juridical practices of the ICJ and tribunals, too much importance has been given to the provisional equidistance line in the first stage, which counters the “equitable principle” stipulated in Articles 74 and 83 of the Convention. As mentioned at the beginning of this paper, both Articles 74 and 83 of the Convention provide that the delimitation shall achieve an equitable solution. In Qatar v. Bahrain (2001), the Court ascertained that both Parties in that case agreed that most of the provisions of the 1982 Convention which are relevant for the present case reflect customary law.89 The ICJ again recognized in the 2012 Nicaragua v. Columbia case that “the principles of maritime delimitation enshrined in Articles 74 and 83 reflect customary international law.”90 Consequently, the ICJ or tribunals should primarily aim to achieve an equitable result in the maritime delimitation relying on the principle of equity. However, it is obvious that the Court or tribunals prefer to construct a provisional equidistance line in the first stage of the three-stage approach in most cases, giving what amounts to a decisive role for the equidistance line in maritime delimitation. Thus, the ICJ and tribunals should consider making greater efforts to balance the relationship between “predictability” and “flexibility” and that between “equidistance line” and “equitable result”. On the other hand, many subjective elements are involved in “the disproportionality test” in the third stage. The transformation of the language from “proportionality” to “disproportionality” indicated that the Court and tribunals are giving increasingly subjective interpretation to “the proportionality test”, opting for a simple way out of the dispute. Actually, in the third stage, it is difficult for the Court and tribunals to decide marked disparities between the relevant coasts of the Parties and it is even more difficult to articulate all the elements for evaluating a “significant” or “gross” disproportionality by the ICJ and tribunals. Taking into account the uncertain concept of disproportionality, fairness dictates a re-evaluation of the original role of “proportionality” developed by the ICJ in the 1969 North Sea Continental Shelf Cases.

88  In regard to the law-making actions by the ICJ or tribunals, see Alan Boyle and Christine Chinkin, The Making of International Law, Oxford, Oxford University Press, 2007. 89  See Qatar v. Bahrain, supra n. 17, para. 167. 90  Nicaragua v. Colombia, supra n. 21, para. 139.