Arctic Shipping through Challenging Waters

The first part of the project sets out and analyses the general legal framework for Arctic shipping. This includes waters under the jurisdiction of Russia. The research highlights inadequacies regarding State participation in relevant international instruments, regulatory standards for shipping in Arctic waters, and the mechanisms for surveillance and control of vessels operating within these waters. One of the central questions is to what extent the IMO has incorporated international environmental law, such as the rules pertaining to the protection of biodiversity or the application of precautionary approach, in its decision making. The analyses confirm that the protection of marine environment has been accepted as an objective in instruments traditionally directed at maritime safety. The finding is confirmed by the analysis of the Polar Code. The Polar Code includes binding norms, adding to the existing sets of regulations, to address the special challenges of navigating in polar waters. States were unable to agree on binding regulations restricting transport/use of heavy oil fuel to prevent oil pollution and to regulate emissions from vessels to air. The Polar Code, in force since 1 January 2017, includes regulations on construction, design, equipment and manning (CDEM) standards of vessels operating in Arctic waters as well as regulations aimed at preventing operational and accidental discharges. The second part of the project includes studies of the role of the coastal States (and other actors) in ensuring safe and environmental friendly shipping in Arctic waters. One of the papers discusses supplements to the IMO instruments. They include measures taken by states in a coastal and port States capacity, as well as cooperation within Arctic Council (AC) or other collective bodies. The paper investigates whether AC and Paris Memorandum of Understanding (MOU) on Port State Control may regulate shipping in the Arctic and concludes with the positive. Regarding AC, it has potential for facilitating cooperation between coastal States and user/flag States. A possible model could be the cooperation facilitated by IMO between coastal States and flag States in the Strait of Malacca and Singapore (SOMS). Another paper discusses to what extent the AC is adaptable to new challenges. The main finding is that the Arctic States decided to strengthen the AC by incorporating the principles reflected earlier by Arctic coastal States (A5) in the Ilulissat Declaration into the requirements for becoming the AC observer. The AC will formally evaluate non-Arctic States recognition of Arctic States sovereignty and jurisdiction. Article 234 of the Law of the Sea Convention (UNCLOS) is central in the discussion of the role of the coastal State as it provides them with extensive jurisdiction over vessels navigating ice-covered areas. One finding is that the Polar Code itself will not directly restrict the jurisdiction under Article 234. However, the coastal State will carry the burden to prove the necessity and reasonableness of regulations that are different or stricter than the Polar Code. The role of Russia as a coastal States is subject to analysis in a separate PhD project. A preliminary finding is that Russia has been active in promoting its own interpretations of the law of the sea provisions for its Northern Sea Route (NSR). It has revised its legislation in accordance with political objectives to increase the use of the NSR. Its assessments seems to coincide with the principles of the law of the sea, even if the strict legality of some of the measures can be questionable. The main finding is that Russia has improved the NSR legal regime's consistency with the law of the sea. One can expect that the more specific contours of the relevant law of the sea rules, including Article 234 be filled in by means of Russian practice and responses by third states. The third part of the project deals with the role of Russia in the decision-making processes leading to the adoption of the Polar Code. A PhD student has analysed the proposals of Russia and has interviewed delegates to the negotiations. One finding is that there is a disconnection between 1) Russia's aims and the goals of the Polar Code; and 2) between the negotiating strategy relied on by Russia and the negotiating strategy that it could benefit most from. Another finding is that the negotiation of the Polar Code was facilitated by avoiding discussion specifically regarding Article 234. The PhD student has compared Canada's and Russia's negotiation strategies and found that common issue areas largely stem from the two States' shared experience of contested national regulatory systems.

It is generally accepted that there is a need for special and additional regulation of international shipping within and through the Arctic Ocean to facilitate the future and increase use of its sea-lanes. IMO is identified as the international body compe tent to develop such regulations. Although a mandatory Polar Code is being negotiated it is uncertainty as to the willingness of IMO member states to accept particular measures to protect the marine environment be included. The project will firstly includ e an investigation of the international environmental legal obligations applicable to Arctic shipping and an assessment based on research from natural scientific and technological research of the adequacy of the traditional types of regulations to protect and preserve the Arctic marine environment and ecosystems. It will also investigate the integration of regulation of shipping with other human activities affecting the marine environment, particularly the Barents Sea shared between Norway and Russia. Sec ondly, the project will investigate the implementation of the international environmental law in the regulation of shipping, focusing on the Russian law and policy. The Russian legal doctrine on the Arctic is important to understand to read the legislatio n. The new Russian legislation will be analysed and assessed in relation to international law. One of the questions to be investigated is what restrictions an IMO Polar Code will put on Russian jurisdiction, if any. It will have bearing on other Arctic co astal states and their cooperation on bilateral and multilateral level within the region. Thirdly, the decision-making processes within international bodies and particularly the involvement of Russia will be investigated. It will provide in-put to the oth er parts of the project and knowledge on the role of Russia in the development of Arctic legal regimes.