John Kaltenstein is Clean Vessels Program Manager for Friends of the Earth - U.S. Kaltenstein works predominately on ship air pollution issues and represents the organization at the IMO. He holds a law degree, with a certificate in Environmental and Natural Resources Law.
Friends of the Earth, Pacific Environment, and World Wildlife Fund take this opportunity to engage in the maturing dialogue on Arctic shipping regulations, specifically to highlight some areas of common ground, as well as points of departure, with the International Chamber of Shipping (ICS) on the subject.
We concur, of course, with ICS that Arctic shipping is growing, and projected to increase further in the future.
We also share concerns about the need to navigate through Arctic waters with great care and impacts to the region caused by expanded vessel activity.
On these topics, though, one would expect to find general agreement. However, with respect to some of the principles laid out by ICS in its paper, we offer an opposing viewpoint, as explained below.
First, ICS states that: “Arctic nations should only apply requirements to foreign flag ships consistent with ‘generally accepted international rules and standards’ (GAIRAS).”
We believe that while strong GAIRAS should be cultivated and supported, the United Nations Convention on the Law of the Sea (UNCLOS) in Article 234 expressly allows for Arctic nations to regulate beyond GAIRAS on a host of matters including, but not limited to, ship discharge and construction rules, if certain criteria are met (see Appendix below).
That prerogative was a salient feature in UNCLOS negotiations, and its import should not be understated.
Both Canada and Russia have made extensive use of Article 234 authority in protecting their polar waters—presumably because standards in MARPOL, SOLAS, and other IMO instruments are not fit for purpose.
Nonetheless, if these countries deem the provisions afforded by the eventual Polar Code completely sufficient to protect their Arctic marine waters, then, naturally, they may decide to eliminate enhanced standards made pursuant to Article 234.
That, of course, is their choice.
The reality of the situation is that Russia and Canada’s laws and regulations adopted pursuant to Article 234 (or given retroactive sanction) offer protections that exceed anything contemplated for the Polar Code.
This can be partially attributed to the lack of progress on the Polar Code’s environmental chapter, due to not only an initial primary focus on the Code’s safety provisions but also because procedural objections voiced at DE 56 by certain Member States precipitated a delay in substantive engagement of the topic.
Arctic Council countries, though, are also culpable for the shortcomings of the Code’s environmental chapter, as the vast majority of their engagement on the topic at the IMO has only occurred recently, in the last six to nine months, despite commencement of Polar Code negotiations in early 2010.
Furthermore, Arctic State engagement at the IMO on environmental aspects of the Code has been slow in coming notwithstanding a pronouncement by the Arctic Council in the 2011 Nuuk ministerial declaration that the Polar Code should be finished as soon as possible.
Second, while ICS’ request of clarity on criteria relevant for the application of Article 234 authority is not unreasonable, particularly with recent marked losses in sea ice engendered by climate change, threats posed by ice are still substantial.
Furthermore, its fragmentation will likely lead to increased ice movement and variability in certain areas of the Arctic (e.g., Canadian Arctic).
Especially worrying is the increased movement of older, thicker sea ice, which previously was relatively immobile, and the deterioration of glaciers and ice shelves that result in greater numbers of icebergs, bergy bits, and growlers and a corresponding increase in risks to vessels operating in such areas.
It appears safe to say, at least for the foreseeable future, that the presence of ice will continue to “create obstructions or exceptional hazards to navigation, and [that] pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance[,]” which justify continued reliance on Article 234 authority.
Moreover, it seems appropriate that, in light of recent climatic changes, Arctic States ought to map “ice prone” areas so as to facilitate the implementation of this unique UNCLOS provision.
Mapping efforts should include present day ice-prone areas as well as near- and long-term projections.
Third, ICS argues that the UNCLOS regime of transit passage within international straits supersedes the rights of coastal States enshrined in Article 234.
We disagree, since the only provision under Section 8 of Part XII, Article 234, is not excluded—unlike several other sections in Part XII—from the regime of straits used for international navigation.
If there had been an intention by the drafters of UNCLOS to express the regime of transit passage’s supremacy over Article 234, this simply could have been accomplished by adding Section 8 to the list of excluded sections.
Moreover, state practice seems to demonstrate that, for surface passage within an international strait, Article 234 predominates.
Fourth, we disagree with ICS’ assertion that “[m]aintenance of this principle also has implications for other international straits outside the Arctic that have vital strategic and political significance.”
Article 234 only applies to State authority in ice-covered areas, which do not, of course, include most well-traveled international straits (e.g. Malacca, Gibraltar). Hence, interpretations concerning the relationship between transit passage and Article 234 in the polar context do not appear to have any bearing on the legal standing of transit passage outside of the Arctic.
Finally, we believe that environmentally sustainable shipping in the Arctic demands certain proactive steps. One of which would be that only “responsible” flag States should be able to operate in Arctic waters.
Responsible flag States are those that, inter alia, have ratified the vast majority of relevant treaties, adopted comprehensive implementing legislation, and demonstrated a willingness and ability to ensure compliance with the provisions of such legislation as well as effectively penalise non-compliance.
To assist in this appraisal, ICS and the International Shipping Federation’s annual Shipping Industry Flag State Performance Table should be consulted.
In conclusion, we look forward to contributing further to the debate on the proper regulatory framework for Arctic shipping, and continue to support the development of a robust code for polar shipping.
Friends of the Earth
World Wildlife Fund
March 18, 2013