Arctic Shipping Routes and UNCLOS III 

                                                             (by Lars Lothe)

The Arctic Ocean is subject to international ocean law, the central pillar of which is UNCLOS III.  This convention deals with all aspects of ocean law.

Each coastal state has internal waters where the state jurisdiction equals that of the land territory. For practical purposes, this is also the case within territorial waters extending 12 nm from the baseline, but here UNCLOS III provides for free passage of ships. A coastal state may also proclaim a contiguous zone for an additional 12 nm, for the purposes of controlling immigration, customs etc.

In addition, coastal states may proclaim an Exclusive Economic Zone (EEZ) extending up to 200 nm from the baseline and rights exclusive rights to resources on the continental shelf. Article 234 of UNCLOS III gives the states certain rights to regulate activities within the EEZ in order to prevent, reduce and control pollution from vessels navigating in what is considered particularly vulnerable waters. This is achieved by giving coastal states a broader right to control shipping in its EEZ than what is otherwise inherent in this regime. 

Over the last decades, focus has also been steadily growing on corporate governance and corporate social responsibility. This influences corporate behavior especially in relation to indigenous people’s rights, environmental issues, and human safety. It is a relevant point that what may be termed “self-restraint in self-interest” has been coming more and more in the forefront at least for major businesses. Further, the growing focus on this issue, makes commercial actors much more competent when it comes to compliance with regulations applicable to their activity. 

The Arctic has certain special features: It is partly ice covered, it is environmentally vulnerable and subjected to rapid climate changes. It is therefore not surprising that the question of a special Arctic treaty has been raised. The European Parliament and WWF have both suggested variants of this. But all the Arctic states as well as the European Commission consider it more feasible to build on the existing international regime and it is very unlikely that a special treaty for the Arctic will be adopted anytime soon.

The Northeast Passage

The NEP goes between the northern coastline of Norway and Svalbard, but predominately along the coast of the Russian Federation. Coastal zones and national legislation of these two Arctic states thus constitute the framework for sailing along this sea route, as does controversies regarding national jurisdiction in these waters.

Norway’s coastal regime covers the EEZ and continental shelf. The Shipping Safety Act of 2007, the Pollution Act of 1981 and the Maritime Act of 1994 together form a national regime with administrative bodies empowered to implementation and enforcement. Special rules for Svalbard apply to Svalbard itself and its territorial waters.

Russia’s coastal regime also covers the EEZ and continental shelf proclaimed within generally accepted ocean law. More controversially, Russia has a very expansive policy and legal doctrine regarding its coastal jurisdiction. As discussed in chapter 6, a full implementation of the sector theory would extend some sort of national jurisdiction far beyond the EEZ, actually all the way to the North Pole, although limited to lands and islands, but possibly even to sea ice. Russia has never passed laws that apply beyond the EEZ and/or continental shelf, but, on the other hand, Russia has never left the sector theory as a possible position.

There is a longstanding, but not very intense, dispute between Russia and the US related to the ice-covered straits of Russia’s Arctic Archipelago. The Russian position is that these waters are internal waters. The US is the only country challenging this explicitly, and contends that the straits are international and that transit passage must be allowed.

Within the EEZ, Russian legislation is extensive when it comes to regulating sailing in the Northern Sea Route, the basis being the 1990 Regulations for Navigating on the Seaways of the Northern Sea Route.  Russia is expansive regarding the geographical scope of national jurisdiction and also expansive when it comes to the content, although emphasizing that it acts with the limits of UNCLOS III.

The Northwest Passage

When sailing along the various routes of NWP ships are passing through national waters of the three Arctic states, Greenland/Denmark, Canada and Alaska/USA.                           

The national legislation of USA is limited in line with the US’ policy of stressing free passage, which is seen as pivotal for national security reasons. The most important legislation pertaining to the EEZ outside Greenland is the Danish Act on Protection of the marine Environment of 1993.

Much like what has been said about Russia for NEP, Canada has also been expansive regarding national legislation applicable to the NWP. Along this passage there are jurisdictional controversies related to the internal waters of Canada resembling the controversy in NEP.  The jurisdictional controversy relating to NWP is whether Canada’s straight baseline and thus what constitutes Canadian internal waters are in conformance with international ocean law. The waters of the entire Canadian Arctic Archipelago are considered internal waters by Canada. This has been challenged by United States expressing the opinion that these waters fall under the regime of international strait. Newly proposed rules on navigation which, inter alia, calls for mandatory reporting requirements before entering and gives Canadian authorities wide authorities in implementation and enforcement, may stir further controversy.

The Trans Polar Passage

Unlike the NEP and the NWP, the TPP is international waters and outside geographical reach of national jurisdiction. This has not officially been challenged by Russia or Canada with basis in the sector theory, but this might happen in the future.         

Since no national legislation exist, the IMO-Guidelines become central, and it is perhaps for the TPP the discussion of a special Arctic treaty are of most relevance. As mentioned above, the Arctic states preference is to build on existing international ocean law and to work within the IMO as well as regionally. The importance of good corporate governance and corporate social responsibility also increases in lieu of national legislation.

The Passages in Comparison

All Passages are subject to the rules set out first and foremost in UNCLOS III and the other international conventions mentioned above, as well as the recommended IMO-Guidelines and norms for good corporate governance and corporate social responsibility.               

The most fundamental difference is that sailing through the NEP and the NWP takes place within the Arctic st6ates’ coastal zones and internal waters, while sailing through the TPP takes place in international waters. The lack of national legislation, except that of flag states, increases the impact and necessity of good corporate governance and adherence to the IMO-Guidelines.                                                                                                           

Within the limits of their coastal zones, all Arctic states have passed legislation relevant to shipping. Most importantly, both Canada and Russia have comprehensive laws for navigation, protection of the marine environment etc. This is in no way meant to say that the NEP and the NWP are similar. There are significant differences in the legal and administrative cultures and traditions between the Arctic states. Russia is by far the dominating country as far as the NEP is concerned and Canada for NWP.

There are two jurisdictional disputes relevant to shipping in the Arctic: In the NWP there is a dispute between Canada and the US regarding the outer limit of Canada’s internal waters. As defined by Canada, its internal waters comprise the entire waters of the Canadian Arctic Archipelago. The US opinion is that these waters falls under the regime of international straits. In the NSR, there is a dispute between the US and Russia related to whether ice-covered straits in the Russian Arctic Archipelago are Russian internal waters or international straits.

The entire Arctic Ocean is subject to applicable international ocean law, most prominently UNCLOS III, but also SOLAS, STWC and MARPOL. In addition, norms for good corporate governance and IMO-Guidelines for Arctic shipping will have influence for how shipping is carried out. NEP and NWP are in addition governed by national legislation, most importantly passed by Russia (NEP) and Canada (NWP). In the NWP there is a jurisdictional controversy between Canada and the US concerning the status the waters in the Canadian Arctic Archipelago – internal waters (Canada) or international strait (the US), and in the NEP there is a resembling dispute between the US and Russia pertaining to Russian ice-covered straits  - internal waters (Russia) or international straits (the US).

Lars Lothe, 2010, Arctic Shipping Routes and UNCLOS III , CHNL.©