The Arctic and the Law

of the Sea

Erik J. Molenaar
Presentation at the conference
Governance of Arctic Shipping. Balancing Rights and
Interests of Arctic States and User States
Singapore, 10 December 2015
Presentation overview
Introduction
Maritime Zones, Boundaries and Limits in the Marine
Arctic
International Disputes Relevant to the Marine Arctic
The International Legal Framework for the Marine
Arctic
The Arctic Council
Conclusions

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Introduction
Definitions
International attention to Arctic spectacularly
increased between 2004-2008
Climate change and The Flag
2008 Ilulissat Declaration by the 5 Arctic Ocean coastal
states: no international law vacuum as the international law of
the sea applies
International law of the sea
Cornerstone: UNCLOS + two Implementation Agreements
multitude of global, (sub-)regional and bilateral instruments
and bodies, acts adopted by such bodes, and rules from other
sources, including customary international law

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Maritime Zones, Boundaries and Limits
in the Marine Arctic
Except archipelagic waters, all normal maritime zones
also occur in the marine Arctic
Four high seas pockets: Banana Hole, Loop Hole,
high seas area in the central Arctic Ocean, and the
Donut Hole
One or more pockets of the Area
Arctic-specific zone: Fisheries Protection Zone (FPZ)
established by Norway around Svalbard; dispute on
geographical scope Spitsbergen Treaty
Historic bays and waters (Canada and Russia)
Sector theory applied to the marine Arctic (Russia)
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Maritime Zones, Boundaries and Limits
in the Marine Arctic (cont.)
Unresolved EEZ maritime boundaries
Canada and Denmark/Greenland in the Lincoln Sea
Canada and the US in the Beaufort Sea
Continental shelf beyond 200 nautical miles
Procedure with Commission on the Limits of the Continental
Shelf (CLCS) finished with only one submission (Norway)
Canada still needs to submit and US cannot submit
After CLCS finishes - which will take many, many years - then
still bilateral, trilateral, or even multilateral negotiations on
maritime boundaries needed
Conclusion: as regards maritime zones, boundaries and
limits, the marine Arctic is not really different from other
regions and Oceans

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International Disputes Relevant to the
Marine Arctic
The Arctic and the Antarctic are both polar regions, but
are fundamentally different from the perspective of
international law
Only dispute on title to land territory in the Arctic relates to
Hans Island, between Canada and Denmark/Greenland
Disputes relevant to merchant shipping
Legal status of the Northwest Passage and other waters
within the Canadian Arctic Archipelago, waters within the
Northern Sea Route, and the consistency of associated
straight baselines with international law
Geographical scope of Spitsbergen Treaty
relevance for merchant shipping?

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The International Legal Framework for
the Marine Arctic
Enormously extensive
Critical distinction: global component vs (sub-)regional
& bilateral component
(sub-)regional & bilateral component
Geographical scope inherently limited
Participation and relationship to global and other (sub-
)regional & bilateral is of obvious significance
(sub-)regional and bilateral component of the marine Arctic is
highly fragmented and complex
Marine Arctic not only Arctic Ocean but also parts of the
Pacific and Atlantic Oceans
Mandate Arctic Council is almost unlimited and
geographical scope is not specified
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The International Legal Framework for
the Marine Arctic (cont.)
Global component relating to international merchant
shipping
UNCLOS: objective of globally uniform minimum standards
Crucial role of International Maritime Organization (IMO)
Mandatory flag state jurisdiction connected to generally
accepted international rules and standards (GAIRAS) +
recognition of various navigational rights and freedoms
Optional coastal state jurisdiction connected to GAIRAS,
except for:
Article 21(2)
More stringent rules and standards adopted by IMO
Article 234 Ice-covered areas

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The International Legal Framework for
the Marine Arctic (cont.)
Article 234
Negotiated by Canada, Soviet Union and US
Does not envisage role for IMO
Several restrictions, e.g.
presence of ice covering such areas for most of the year
within the limits of the EEZ
Purpose
Prevention, reduction and control of vessel-source
pollution not explicitly maritime safety, but laws and
regulations are allowed to have multiple purposes
Which states are entitled to rely on Art. 234 and which states
actually do so?
Relationship Art. 234 and transit passage
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 Article 234 of the LOS Convention
Ice-covered areas

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.

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The International Legal Framework for
the Marine Arctic (cont.)
Regional cooperation and the law of the sea
Framework instruments like the UNCLOS rely on
implementation by states individually and collectively
Advantages, e.g. regional-specific species or issues
Disadvantages, e.g. only applicable among regional states
Existing regional (marine) cooperation:
Merchant shipping
Pollution incidents
Search and rescue
Marine environmental protection
Conservation and management of marine living resources
Marine scientific research

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The International Legal Framework for
the Marine Arctic (cont.)
Regional cooperation on merchant shipping
Regulation
Collective regulation as flag states, coastal states (e.g. on
Art. 234) and port states
Regional implementation of global instruments (e.g. IMOs
OPRC 90 by 2013 Arctic MOPPR Agreement)
Enforcement
Regional Port State Control Arrangements
Other domains
Cooperation between strait states and user states re
Straits of Malacca and Singapore
Coast Guards (e.g. Arctic Coast Guard Forum), which is
not limited to merchant shipping
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The Arctic Council
High-level intergovernmental forum established by
1996 Ottawa Declaration
Not an intergovernmental organization, despite establishment
of Arctic Council Secretariat, in Troms, in 2013
Very wide mandate
Significant under-utilization & no intention to ensure full use
either (e.g. polar bears and marine capture fisheries)
Geographical scope not specified
Three categories of participation
Members (Arctic states): 8; no new members possible; not
necessarily inconsistent with international law
Permanent Participants: 6; one more possible
Observers (e.g. Singapore)
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common Arctic issues, in particular issues of sustainable development and
environmental protection in the Arctic

Fn.: The Arctic Council should not deal with matters related to military security.

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The Arctic Council (cont.)
Decision-making
Consensus among Members, after consultation with
Permanent Participants
Decisions and output can only be non-legally binding
Arctic SAR Agreement & Arctic MOPPR Agreement were
merely negotiated under the auspices of the Council
Operation
Rotating two-year Chairmanship (now US)
Ministerial Meetings
Senior Arctic Officials (SAOs)
Secretariat, led by Director
Permanent Working Groups (6)
Temporary bodies (e.g. Task Forces mandated to negotiate
legally binding instruments)
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The Arctic Council (cont.)
Main roles of the Arctic Council
Formal roles mentioned in Ottawa Declaration (e.g.
cooperation, coordination and interaction)
Monitoring and assessment (e.g. Arctic Marine Shipping
Assessment (AMSA))
Providing non-legally binding policy and regulatory guidance
(e.g. Guidelines, Recommendations and Best Practices)
Decision-shaping (AMSA Recommendation: negotiations on
legally binding Polar Code in IMO)
Regional implementation of global instruments, by functioning
as a venue for negotiation

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 The Arctic Council (cont.)
Arctic Council System (ACS)
Two basic components
1. Arctic Council instruments and bodies
2. Instruments negotiated under the Councils auspices and
bodies established under these
Arctic SAR Agreement & Meetings of Parties (MoPs)
Arctic MOPPR Agreement & MoPs
Future Arctic Scientific Cooperation Agreement & MoPs
Linkage between the components comprises a considerable
extent of functional integration (role of EPPR Working Group
and the coordination of meetings)
Arctic Coast Guard Forum arguably also part of the ACS

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The Arctic Council (cont.)
Future evolution of Arctic Council and ACS
2008 Ilulissat Declaration: no need to develop a new
comprehensive international legal regime to govern the Arctic
Ocean
Treaty modeled on the Antarctic Treaty = the Big NONO
Now: two-tiered approach of strengthening the Council and
developing the ACS
At present also support for transforming the Ottawa
Declaration into a treaty (e.g. Finland)
Outcome of Task Force on Arctic Marine Cooperation
assess future needs for a regional seas program or other
mechanism, as appropriate, for increased cooperation in
Arctic marine areas
Potentially important role of Arctic Council Observers
(pioneering international law)
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Conclusions
1. Global component law of the sea also applies to the marine
Arctic, however defined
2. Situation re maritime zones, boundaries and limits in marine
Arctic is similar to other regions and Oceans
3. While recognizing IMOs primacy in the regulation of
international merchant shipping, regional cooperation on
merchant shipping can be both useful and necessary; also in the
Arctic Council
4. Spectacular evolution of the Arctic Council and Arctic Council
System, and more to come, but formally independent
instruments and bodies will continue to exist

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 Thank you!

Questions?

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