Options for Regional Regulation of Merchant Shipping outside

IMO, with Particular Reference to the Arctic Region

Erik J. Molenaar

Netherlands Institute for the Law of the Sea (NILOS),

Utrecht University & K.G. Jebsen Centre for the Law of the Sea, University of Tromsø

e.j.molenaar@uu.nl

27 November 2013

Overview of presentation

•  Introduction on Arctic shipping •  International legal regime for merchant

shipping •  Mandate and practice of IMO •  Mandate and relevant practice Arctic Council •  Options for regional regulation of merchant

shipping outside IMO, with particular reference to the Arctic Region

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Introduction on Arctic shipping •  ‘Arctic waters’ as defined in 2009 IMO Guidelines

for Ships Operating in Polar Waters •  Intra-Arctic and trans-Arctic maritime shipping

–  Northwest Passage, Northern Sea Route & Central Arctic Ocean route

•  Arctic states >> Arctic coastal states >> Arctic Ocean coastal states

4

Introduction on Arctic shipping (cont.) •  Recent trends

–  Rapidly decreasing ice coverage and thickness –  Growth in maritime shipping, esp. Northern Sea

Route •  Future scenarios

–  Range of variables or wildcards: climate change, technological developments, oil price, piracy, mayor shipping disasters etc.

•  Which routes are the most optimal? –  Northern Sea Route, Northwest Passage or

central Arctic Ocean route

Introduction on Arctic shipping (cont.)

•  Progress on the mandatory Polar Code –  Adoption scheduled for 2015 (original target was

2012) –  Dedicated legally binding instrument, but not a stand-

alone treaty → first genuine regional legally binding IMO instrument & first legally binding bi-polar instrument

–  Linkages with SOLAS 74 and MARPOL 73/78, but probably no other IMO Conventions (yet)

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International legal regime for merchant shipping

•  Objective UNCLOS: uniformity in regulation international shipping –  Key role of ‘competent international organizations’ in

implementation by means of standard-setting –  Prescriptive jurisdiction linked by ‘rules of reference’ to

certain output of these organizations → generally accepted international rules and standards (GAIRAS)

•  Flag states: mandatory minimum •  Coastal states: optional maximum •  Port states: no linkage with rules of reference &

GAIRAS

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International legal regime for merchant shipping (cont.)

•  Objective UNCLOS: uniformity in regulation international shipping (cont.) –  Exceptions (more stringent standards than GAIRAS)

•  Coastal state – Non-CDEM (construction, design, equipment &

manning) standards in territorial sea (Art. 21(2)) –  Article 234 (Ice-covered areas)

•  Flag state –  Exercise restrained by impacts on competitiveness

•  General international law (confirmed by UNCLOS) –  Residual jurisdiction in relation to ports and internal waters

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International legal regime for merchant shipping (cont.)

•  ‘competent international organizations’ for merchant shipping → no singular body –  In principle global, but residual role regional bodies

not excluded (see further below) –  Standard-setting bodies

•  International Maritime Organization (IMO) •  International Labour Organization (ILO) •  International Atomic Energy Agency (IAEA)

–  Other relevant global bodies •  International Hydrographic Organization (IHO) •  World Meteorological Organization (WMO)

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Mandate and practice of IMO

•  IMO is primary ‘competent international organization’ for shipping under UNCLOS

•  Mandate (purposes) of IMO –  Art. 1(a) of the IMO Convention (consolidated

version) •  Original mandate narrower: maritime safety and

safety of navigation –  Tacit agreement to ignore Art. 1(b) and (c) of the

IMO Convention on discriminatory and restrictive practices

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Article 1 of the IMO Convention The purposes of the Organization are (a) To provide machinery for co-operation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade; to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and prevention and control of marine pollution from ships (...).

Mandate and practice of IMO (cont.)

•  Evolving and expanding mandate, e.g. –  Maritime safety → maritime security, unlawful acts

against the safety of navigation, piracy, illegal migrants - persons rescued at sea

–  Vessel-source pollution → impact of shipping on the marine environment (anchoring, ballast water & sediments, anti-fouling systems, ship recycling, noise)

•  Evolving and expanding practice on standards –  E.g. emission & ballast water treatment standards –  But not comprehensive: e.g. no standards on ice-

breaker assistance; mandatory speed restrictions, ice-pilots & convoys

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Mandate and practice of IMO (cont.)

•  Evolving and expanding practice on compliance –  Reporting obligations under various IMO

instruments –  Port state control (e.g. acknowledgement

usefulness regional PSC arrangements) –  Compliance assessment under STCW 78 –  Sub-Committee on Flag State Implementation

(FSI)

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Mandate and practice of IMO (cont.)

•  Practice vis-à-vis the international law of the sea, esp. UNCLOS –  Implementing general & enabling UNCLOS provisions

(e.g. piracy, archipelagic sea lanes and special areas) –  Adjusting balance between flag and coastal states

(e.g. ship reporting systems) –  Various issues not (yet) dealt with by IMO

•  Prior notification and authorization •  Meaning ‘genuine link’ & implications of non-compliance •  Legal status of maritime areas (historic waters, straight

baselines, applicability of transit passage regime) 12

Mandate and relevant practice Arctic Council

•  Very broad mandate under 1996 Ottawa Declaration •  Arctic Marine Shipping Assessment (AMSA; 2009)

–  Recommendations: •  Support negotiation mandatory Polar Code •  Negotiate Arctic SAR Agreement (implements, inter alia,

IMO’s SAR Convention) → gave rise to ‘Arctic Council System’ (ACS)

•  Negotiate Arctic MOPPR Agreement (implements IMO’s OPRC 90 and Intervention Convention)

•  Ongoing AMSA follow-up; e.g. use and carriage of heavy fuel oil (HFO); special areas

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Mandate and relevant practice Arctic Council (cont.)

•  Arctic Ocean Review (AOR) project (2009-2013) –  Ch. 3 ‘Arctic Marine Operations and Shipping’: 11 Recs

•  No. 4: Enhanced cooperation on monitoring and surveillance of Arctic marine traffic;

•  No. 9: Guidelines on sustainable tourism and cruise-ship operations;

–  Ch. 9 ‘Recommendations’; three on Arctic Marine Operations and Shipping

•  Two on action within IMO or ‘existing port state arrangements’

•  Guidelines on sustainable tourism and cruise-ship operations; explicitly taken up by Canada (current Chair)

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Options for regional regulation of merchant shipping outside IMO, with particular

reference to the Arctic Region

•  Regional implementation of global instruments •  Exercising uniform, residual flag, coastal and port

state prescriptive jurisdiction in concert •  Initiatives to enhance compliance, e.g.

–  Port state control –  Aerial and satellite-based monitoring and

surveillance of intentional and accidental pollution incidents

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Options for regional regulation of merchant shipping outside IMO, with particular reference to the Arctic Region (cont.)

•  Resolving regional law of the sea disagreements & disputes relevant to merchant shipping –  Legality of Canadian & Russian straight baselines –  Canadian & Russian entitlement to historic title –  Applicability transit passage regime to (parts of) the

Northwest Passage and the Northern Sea Route –  Relationship between transit passage and Article 234

of the UNCLOS –  Implementation of the duties of strait/coastal states

and the contributions by user-states 16

Thanks for your attention!

Questions?