Coastal State Jurisdiction and Control in the Arctic

(from AMSA Report 2009)

For coastal states to claim maritime zones in the Arctic in accordance with UNCLOS, they must have coastal frontage in the region. Of the eight Arctic states, Canada, Denmark (Greenland), Norway, the Russian Federation and the United States have coastal frontage in the Arctic Ocean. Iceland has coastal frontage on the Norwegian Sea and Finland and Sweden in the Baltic Sea.

The extent of legislative and enforcement control over foreign ships by the coastal states of the Arctic Ocean varies according to the different maritime zones set out in UNCLOS, namely: internal waters, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf (Table 4.1).

Table 4.1 Arctic coastal state maritime jurisdictional zone claims 

The seaward limit of the maritime zones and jurisdictions is based primarily on distance from a combination of the low-water marks along the coast, straight baselines and closing lines for bays. With the exception of the United States, the Arctic Ocean states have proclaimed straight baselines along most or all of their Arctic coasts. Table 4.1 sets out the limits of jurisdictional claims by Arctic Ocean coastal states.

For internal waters, coastal states are entitled to exercise full sovereignty and maximum jurisdiction over ships and can, pursuant to that authority, set conditions for entry into its ports. For example, coastal states might prohibit entry of certain “risky ships”, such as substandard ships or those carrying radioactive wastes or other hazardous cargoes, or they might impose “zero discharge” limits on particular ship-source pollutants. The only likely constraint on the exercise of this power is the traditional and customary duty to grant refuge in sheltered waters to a ship in need of assistance.

Internal waters include marine areas on the landward side of closing lines for bays, ports and harbors and historically recognized internal waters. A coastal state may also choose to draw straight baselines around a deeply indented coastline or where there is a fringe of islands in the immediate vicinity of the coast. Waters enclosed would be internal. UNCLOS sets forth the rules on setting baselines.

Exactly which Arctic waters may be claimed validly as internal has been contentious. For example, Canada enclosed its Arctic archipelago with straight baselines, effective January 1, 1986, but the United States and other states protested against the internal waters status claim.

Within the limit of the 12 nautical miles that may be claimed for the territorial sea, Arctic coastal states have full sovereignty, but foreign ships retain the right to innocent passage; that is, passage which is continuous and expeditious, and is not prejudicial to the peace, good order or security of the coastal state. For example, undertaking research or surveys or fishing without the coastal state’s consent, or engaging in an act of serious and willful pollution in contravention of UNCLOS would be considered prejudicial to the interests of the coastal state.

UNCLOS allows coastal states the authority to adopt laws and regulations applicable to foreign ships transiting through the territorial sea. Domestic laws can be applied in relation to such things as safety of navigation, preservation of the marine environment and marine pollution control. There are two limits on this authority; namely, that coastal states cannot impose design, construction, crewing or equipment standards on foreign ships unless giving effect to generally accepted international rules or standards; and that such laws may not have the practical effect of denying or impairing the right of innocent passage. Coastal states may also, having regard to the safety of navigation, designate sea lanes and traffic separation schemes for foreign ships. However, the coastal state must take into account IMO recommendations and any channels customarily used for international navigation. They may not impose a charge on the passage itself; only specific fees for services rendered may be charged and without discrimination.

Coastal states may also claim a 12 nautical mile contiguous zone adjacent to the territorial sea (i.e., up to a seaward limit of 24 nautical miles). In this zone, coastal states may exercise necessary control over foreign ships to prevent infringement and to enforce violations of customs, fiscal, immigration or sanitary laws and regulations in their territory or territorial sea.

In a 200 nautical mile exclusive economic zone (EEZ), measured from the territorial sea baselines, coastal states have sovereign rights to explore, exploit, conserve and manage their natural resources, and jurisdiction over such things as protection of the marine environment. In part XII of UNCLOS, the issue of coastal states’ ability to regulate shipping for the purposes of pollution prevention and control laws is addressed, which is that laws and regulations applicable to foreign ships must conform or give effect to international rules and standards established through the IMO.

A coastal state has limited enforcement powers in the EEZ against transiting foreign ships violating applicable international rules and standards for preventing and controlling pollution. A coastal state may only undertake physical inspection of a foreign ship where a violation has resulted in a substantial discharge causing or threatening significant pollution of the marine environment. Actual arrest and detention of a foreign ship is only allowed if a violation causes major damage or a threat of major damage to the coastline, interests or resources of the coastal state. In such a case, the coastal state may only impose monetary penalties.

UNCLOS defines the continental shelf of a coastal state as comprising the seabed and subsoil of the submarine areas beyond the territorial sea to the outer edge of the continental margin, or to at least 200 nautical miles from coastal baselines where the outer edge of the continental margin does not extend to that distance. A coastal state with a continental shelf extending beyond 200 nautical miles has 10 years from the time the convention enters into force for that state to make a submission to the Commission on the Limits of the Continental Shelf. The limits of the continental shelf established by a coastal state on the basis of the recommendations of the commission shall be final and binding.

While the coastal state’s rights to the resources of the extended continental shelf are exclusive, the waters above the extended continental shelf are high seas. Therefore, the coastal state has no jurisdiction over foreign ships in those waters with very few exceptions (for example, where a foreign ship is undertaking exploration activities on the continental shelf without its consent.) The coastal state may locate artificial islands, installations or structures on an extended continental shelf and include safety zones that are consistent with international standards. However, it may not establish them where interference may be caused to the use of recognized sea lanes essential to international navigation.

Coastal states bordering a strait used for international navigation retain very limited powers over foreign ships because of their right to transit passage. States bordering straits cannot suspend passage and may only adopt ship-source pollution laws applicable to foreign ships if in accordance with international standards. Sea lanes and traffic separation schemes may be designated, but only with IMO approval. A ship exercising transit passage may do so in its “normal mode,” a phrase taken to mean that a submarine may remain submerged, whereas in innocent passage it must navigate on the surface and show its flag.

UNCLOS does not specify the extent of international navigation required to transform navigable waters into a strait used for international navigation. National opinions have differed over the application of the straits used for an international navigation regime in the Arctic.

Article 234 of UNCLOS bolsters coastal state powers to regulate foreign shipping in order to prevent, reduce, and control marine pollution in the Arctic. It recognizes the coastal state’s right to adopt and enforce special non-discriminatory pollution prevention, reduction and control laws in areas within the limits of the EEZ that are covered by ice for most of the year, when certain conditions are met. Additionally, the coastal state’s laws and regulations must have due regard to navigation, protection and preservation of the marine environment and be based on the best available scientific evidence.

Article 234 raises various questions of interpretation. What is required to meet the litmus of “ice covering such areas for most of the year?” For example, will even partial ice cover suffice if there is an exceptional hazard to navigation? What is the significance of giving special coastal state powers only in the EEZ? One interpretation is that coastal states are given no greater powers than those applicable in the territorial sea. Another is that coastal states are granted broader powers, in particular the right to unilaterally adopt special ship construction, crewing and equipment requirements. Application of Article 234 to straits used for international navigation may also be questioned. Since UNCLOS does not exempt straits from the application of Article 234, questions of interpretation may again rise over the geographical scope of coverage and the breadth of coastal state regulatory powers.

Arctic Council, 2009, Arctic Marine Shipping Assessment (AMSA), Arctic Council.©