Download Perspectives from a North American (with Dutch Ancestry

Governance of Arctic
Marine Shipping: A Short “Cruise”
Professor David L. VanderZwaag
Director, Marine & Environmental Law Institute, Dalhousie
University and
Canada Research Chair in Ocean Law and Governance
Maritime Symposium 2008
Halifax, Nova Scotia, Canada
November 2008
Introduction
•
•
One Overall Image Helps Capture the Governance of Arctic Marine Shipping
A “Complex Mosaic” with Four Main Parts to the Puzzling Governance
Picture
1.
The 1982 Law of the Sea Convention as the Overarching Framework
2.
International Conventions/Documents Setting Governance Obligations for
States To Control Shipping (International Public Maritime Law Framework)
3.
International Conventions/Documents Aimed at the Shipping Industry and
Relevant Practices of the Shipping Industry (International Private Maritime
Law Framework)
4.
Special National Legislative and Regulatory Requirements for Arctic
Shipping (Canada and Russia)
• A Three Part Governance “Cruise” Follows with Victor Santos-Pedro
Completing the Voyage by Highlighting Canadian and Russian
Requirements for Arctic Shipping
1. The 1982 Law of the Sea Convention (LOSC) – The Overarching
Framework
LOSC Establishes a “Delicate Balancing Act” Among the Powers of
Coastal States, Flag States and Port States To Control Shipping
• Coastal State Jurisdiction and Coastal State Control Over Foreign Vessels
+ Varies According to Six Maritime Zones
+ Special Jurisdiction Bestowed by Article 234 for Ice-Covered Waters
+ Six Maritime Zones
– Internal Waters
* Maximum Jurisdiction Over Foreign Ships, E.G.
> Prohibition of “Risky Vessels” Such as Those Carrying
Radioactive Wastes, Oil Tankers
> Zero Pollution Standards
* Various Ways To Establish, E.G.
> Historic Waters
> Straight Baselines Around a Deeply Indented Coastline or a
Fringe of Islands in the Immediate Vicinity of the Coast
* Exactly Which Arctic Water May Be Validly Claimed as Internal
Has Been Contentious, E.G.
> Canada’s Enclosure of Its Arctic Archipelago with Straight
Baselines Effective January 1, 1986
> USA and Other States Protested
– Territorial Sea
* 12 Nautical Mile Zone
* Coastal States Have Sovereignty But Subject to Right of Innocent
Passage of Foreign Ships
> Coastal State Cannot Unilaterally Impose Design,
Construction, Crewing or Equipment Standards
> Coastal State Can Designate Sea Lanes and Traffic Separation
Schemes, Particularly for Ships Carrying Hazardous Cargoes
* Some “Tensions” Over How Far a Coastal State Can Control
Transits of Foreign Ships, E.G.
> Imposing More Stringent Pollution Standards Than Those in
the Global MARPOL 73/78 Convention
> Requiring Notice/Authorization for Ships Carrying Hazardous
or Noxious Substances
– Contiguous Zone
* 12 N.M. Contiguous Zone to the Territorial Sea (up to a Seaward
Limit of 24 N.M.)
* Coastal State Has Jurisdiction To Prevent Infringement of Its
Customs, Immigration and Sanitary Laws
– Exclusive Economic Zone (EEZ)
* 200 N.M. Zone Measured from Territorial Sea Baselines
* Coastal State May Only Adopt Pollution Prevention/Control Laws
Applicable to Foreign Ships If in Conformity with Global
Rules/Standards Adopted through IMO
* Coastal State Has Very Limited Enforcement Powers, E.G.
> Actual Arrest and Detention of a Foreign Vessel Only Allowed
If a Violation Causes Major Damage or a Threat of Major
Damage to the Coastline or Marine Resources
> Only Monetary Penalties May Be Imposed
– Continental Shelf
* All Five Arctic Coastal States Have Extended Continental Shelf
Claims Beyond 200 N.M. (Russian Federation and Norway Have
Already Made Submission to Commission on the Limits of the
Continental Shelf)
* If “Legitimated”, Extended Claims Would Give
> Rights to Mineral Resources
> Rights to Sedentary Species
* Very Limited Role for a Coastal State to Interfere with Navigational
Rights (E.G. Establishing 500 Metre Safety Zones Around Drill
Ships or Production Installations)
– International Straits
* Coastal States Bordering a Strait Retain Very Limited Powers over
Foreign Ships Because of Their Right to Transit Passage, E.G.
> Only Global Pollution Standards
> Sealanes and Traffic Separation Schemes, Only with IMO
Approval
* Application of International Straits Regime in the Arctic Has Been Subject
to Controversy
> What Degree of Use Is Necessary to Transform an Area into an
International Strait?
> Example of USA-Canada Disagreement over the Status of the
Northwest Passage
+ Special Coastal State Jurisdiction Bestowed by Article 234 of LOSC
* Coastal States Granted Special Powers To Adopt and Enforce Pollution
Prevention and Control Laws in Ice-Covered Waters, E.G.
> Special Construction and Crewing Standards
> Pollution Prohibitions
* Various Questions of Interpretation, E.G.
> Exactly What Waters (Ice-Covered for Most of the Year) Are Subject to
the Special Controls?
> What Is the Significance of Granting Special Coastal State Powers Only
in the EEZ?
• Flag State Control
+ The Mainstay of Shipping Control
– Obligation of Flag States to Apply and Enforce International Shipping
Standards to Their Flagged Vessels
– Exclusive Flag State Jurisdiction on the High Seas Beyond National
Jurisdiction with Limited Exceptions
+ A State’s Warships and Other Ships Used Only on Government NonCommercial Service Enjoy Sovereign Immunity
– Cannot Be Inspected and Prosecuted by Other States
– Flag State Required To Ensure That Such Ships Comply as Far as
Practicable with International Standards
• Port State Control
+ Port States Have Broad Inspection and Enforcement Powers over Ships
Voluntarily in Their Ports for Alleged Pollution Violations
+ Port States Allowed To Prevent a Ship from Leaving Port of a Ship Is
Unseaworthy and Threatens Marine Environmental Damage
2. International Conventions/Documents Setting Governance Obligations for
States To Control Shipping Fall into Three Major Categories
• Conventions/Codes Covering Ship Safety and Seafarer Rights and
Standards in General
• Conventions/Codes Covering Vessel-Source Pollution in General
• Specific Guidelines for Arctic Shipping (To Be Covered by Victor)
• Conventions/Codes Covering Ship Safety and Seafarer Rights and
Standards in General
+ Maritime Safety
Four Key Agreements (A Main Sail and Jibs)
– The Main Sail is the Safety of Life at Sea (SOLAS) Convention, 1974
Has 12 Chapters Addressing Key Components of Ship Safety, E.G.
* Chapter II-1 Covers Construction and Subdivision of Ship (For
Example, Passenger Ships Have Subdivision Requirements into
Watertight Compartments so Ships Will Remain Afloat in Case of
Hull Damage
* Chapter II-2 Sets Out Fire Detection and Fire Extinction
Requirements
* Chapter III Establishes Life-Saving Equipment Requirements, Such
as Life Boats and Life Jackets
* Chapter IV Covers Radiocommunications (For Example, All
Passenger Ships and All Cargo Ships of 300 Gross Tonnage or
More on International Voyages Are Required To Carry
Communication Equipment for Improving the Chances of Rescue
after an Accident, Such as Satellite Emergency Position Indicating
Radio Beacons (EPIRBS)
* Chapter V Deals With Safety of Navigation (For Example, Provides
for Establishment of Mandatory Vessel-Routing under IMO
Auspices)
* Chapter VII Addresses Carrying of Dangerous Goods, E.G.
> Part A Makes Mandatory the International Maritime Dangerous
Goods (IMDG) Code
> Part C Covers Construction and Equipment of LNG Carriers
and Requires Compliance with the International Gas Carrier
(IGC) Code
* Chapter XI-2, Adopted in December 2002, Seeks To Enhance
Maritime Security, E.G.
> Establishing the International Ship and Port Facilities Security
(ISPS) Code
> Requires Ships To Have Ship Security Alert Systems (Not
Raising an Alarm Onboard But Signaling a Security
Emergency To a Shore-based Authority)
– Three “Jib Sails” on Maritime Safety
* International Convention on Load Lines (1966)
* Convention on the International Regulations for Preventing Collisions at
Sea (1972)
* International Convention on Maritime Search and Rescue (1979)
+ Seafarer Rules and Standards
– General Rules and Standards for Seafarers Have Been Established Through a
Fragmented Array of Instruments
* Standards for Decent Working and Living Conditions for Seafarers, Such
as Hours of Rest and Work, Wages, Food, Medical Care and
Accommodation, Have Been Set Out in Scores of International
Instruments Adopted Since 1920
* A Majority of These Instruments Have Been Consolidated into a
Maritime Labour Convention, 2006 (Expected To Come into Force by
2011)
* Basic Training and Certification Requirements for Seafarers Are Set Out
in the International Convention on Standards of Training, Certification
and Watchkeeping for Seafarers (1978/1995)
– No Specific Legally Binding Standards for Seafarers Working in the
Arctic or Antarctic Have Been Forged
* No Standardized Crew Training Courses Have Been Developed
* No Uniform Requirements for Training and Experience of Ice
Navigators Have Been Agreed Upon
* No Special Requirements for Minimum Hours of Rest or Maximum
Hours of Work
• Conventions/Codes Covering Vessel-Source Pollution in General
Also a Case of Main Sail and Jib Sails
+ MARPOL 73/78 the Main Sail
– Sets Vessel-Source Pollution Standards through Six Annexes
* Annex I (Oil)
* Annex II (Noxious Liquid Substances)
* Annex III (Harmful Substances in Packaged Form)
* Annex IV (Sewage
* Annex V (Garbage)
* Annex VI (Air Pollution)
– Considerable Pollution Still Allowed Especially for Oil, Sewage and
Garbage, E.G.
* Oily Ballast Water from Tankers
(30 Liters Per Nautical Mile If Discharged While En Route and Over 50
N.M. Offshore)
* Untreated Sewage If Beyond the 12 N.M. Territorial Sea (Ship Must Be
Proceeding at Not Less Than 4 Knots and the Discharge Must Not Be
Instantaneous but at a Moderate Rate)
* Garbage (Allowable Deposits Based on Concept of Distance
from Land, E.G. Cans, Bottles, Can Be Disposed of If Beyond
12 N.M.)
– Special Areas Can Be Established Through IMO Where Stricter
Pollution Standards Can Be Made Applicable for Oil, Noxious
Liquid Substances and Garbage
* Antarctic Declared a Special Area under Annexes I (Oil), II
(Noxious Liquid Substances) and V (Garbage)
* Arctic Has Not Been Proposed for Special Area Designation
* Annex VI Allows Special Sulphur Oxide Emission Control
Areas To Be Declared Where Sulphur Content of Ship Fuels
Would Be Lowered for Designated Regions (1.5% m/m) from
the Global Standard of (4.5% m/m) but Neither Polar Region
Has Been Proposed for Special Treatment
– Global Standards for Garbage and Air Pollution from Ships in the
Process of Being Reviewed and Strengthened By IMO
+ Four Other “Jib Sail” Conventions Round Out the Vessel-Source Pollution
Regime
– London Convention 1972 and Its 1996 Protocol Governing Ocean Dumping
– International Convention on Oil Pollution Preparedness, Response and
Cooperation (1990) and the Protocol on Hazardous and Noxious Substances
(2000)
– International Convention on the Control of Harmful Anti-fouling Systems
on Ships (2001)
– International Convention for the Control and Management of Ships’ Ballast
Water and Sediment (2004)
* The Ballast Water Convention Encourages Regional Agreements on
Ballast Water Control Especially for Enclosed or Semi-Enclosed Seas
* The Antarctic Regional Has Undertaken Studies of Ballast Water
Practices from Ships Entering Antarctic Waters and Has Received IMO
Endorsement of Guidelines for Ballast Water Exchange in the Antarctic
Treaty Area (2007)
* Ballast Water Practices and Threats Have Ye to Be Placed on the Arctic
Agenda
3. International Private Maritime Law Framework
• Various Contractual Arrangements Between Private Parties May Also Govern
Shipping in the Arctic, E.G.
+ Carriage of Goods Contracts
+ Carriage of Passenger Contracts
+ Marine Insurance Contracts
+ Salvage Contracts
• Limitations Relating to Arctic Salvage and Marine Insurance Are Emphasized
Among the Technical Report’s 28 Findings
+ Salvage
In the Arctic, there is little or no governmental or commercial salvage response to
support commercial shipping. This is possibly less the case on the Northern Sea
Route, where the Russian Federation maintains a substantial fleet in support of
shipping. Generally, there is limited infrastructure for ship repair and/or salvage and
pollution countermeasures capability based in the Arctic basin. (Finding # 21)
+ Marine Insurance
The availability and cost of marine insurance is a major restraint on Arctic marine
shipping. A major constraint continues to be the lack of an actuarial record to enable
insurers to assess and cost the risk. However, the insurance industry appears to be
willing to underwrite Arctic shipping on a case-by-case basis. The London market
has published seasonal additional premiums for ships sailing to the Arctic. (Finding
# 23)
• Various Conventions Channel Liability and Compensation To Private Parties for
Pollution Damages
+ Oil Pollution from Tankers
– 1992 Civil Liability Convention
– 1992 Fund Convention
– All Arctic States Parties Except USA
+ Bunker Oil Spills from Non-Tankers
– International Convention on Civil Liability for Bunker Oil Pollution Damage
(2001)
– Will Enter into Force 21 November 2008
– Among Arctic States, Only Norway Is a Party
+ Hazardous and Noxious Substance (HNS) Spills from Ships
– International Convention on Liability and Compensation for Damage in
Connection with the Carriage of Hazardous and Noxious Substances by Sea
(1996)
– Not Yet in Force
– Only Russian Federation a Party
End of Short Cruise!!
http://www.saskschools.ca/~gregory/arctic/sea/walrus2.jpg
The contributions of the following co-authors to the Arctic Marine
Shipping Governance chapter are gratefully acknowledged:
Aldo Chircop, Erik Franckx, Hugh Kindred, Kenneth MacInnis,
Moira McConnell, Angus McDonald, Ted McDorman, Sonja Mills,
Tony Puthucherril, Susan Rolston, Phillip Saunders, K. Joseph Spears