Law of the Sea as Reflected in UNCLOS: The Overarching Legal Framework

(from AMSA Report 2009)

The governance of shipping activities in the Arctic might be described as a complicated mosaic. The Law of the Sea, as reflected in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), sets out the legal framework for the regulation of shipping according to maritime zones of jurisdiction. Other international agreements address specific elements of shipping such as marine pollution prevention standards, ship safety, seafarer rights and qualifications and liability and compensation for spills. In addition, Canada and the Russian Federation have adopted special national legislation for ships operating in ice-covered waters within their EEZs. Descriptions of international law, including as reflected in the UNCLOS, are included for the benefit of the reader and are not intended to constitute interpretations.

A wide range of actors affect the law, policy and practice applicable to shipping in the Arctic. In addition to governments, shipowners, cargo owners, insurers, port authorities, trade and labor union associations, among others, may be involved in determining when and where shipping in the Arctic should occur and under what conditions.

Governance of shipping is characterized by efforts to promote safety, security, protection of the environment from damage by accident, as well as harmonization and uniformity in international maritime law and standards. The International Maritime Organization (IMO), a specialized agency in the United Nations system, addresses a broad range of issues pertaining to international shipping, including maritime safety, security and environmental protection. Other intergovernmental organizations work closely with the IMO in the governance of international shipping. For example, the International Labour Organization (ILO) has played a seminal role in the establishment of minimum basic standards for seafarers’ rights.

The IMO acts as secretariat for most international maritime conventions and facilitates their implementation through the adoption of numerous codes and guidelines aimed at operationalizing and facilitating the implementation of international rules and standards. International conventions and related protocols become binding only on those states that choose to become parties. Upon ratification of a convention, states must formally implement it into their national maritime regulatory regime. States can, however, legislate the provisions of a convention or protocol without necessarily becoming a party.

An explanation of the governance of shipping would not be complete without noting the critical role played by standard form contracting and related “good practices” developed by industry. For example, in contracts for carriage by sea the carrier must prepare against foreseeable risks and provide a seaworthy ship for the voyage, which must be pursued without deviation or delay and with due care for the cargo or passengers. These standard forms have been recognized and applied by courts around the world.

The Law of the Sea, as reflected in UNCLOS, has struck a balance among the powers of coastal states, flag states and port states to exercise jurisdiction and control over shipping. The jurisdictional status of some Arctic waters, in particular internal waters and straits used (or potentially to be used) for international navigation, remains controversial and could give rise to future disputes concerning the exercise of national jurisdiction over international navigation through those waters.

Coastal State Jurisdiction and Control

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

Source: AMSA

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.

Flag State Jurisdiction and Control

Flag states play a vital role in the governance of shipping. UNCLOS permits a state to fix conditions for granting its nationality (i.e., flying its flag) to ships so long as there exists a “genuine link.” Ships can only sail under the flag of one state at a time. The flag state’s domestic laws, for example, criminal law, apply to those aboard its ships. A flag state must also ensure that its ships conform to international rules and standards concerning matters such as safety at sea, pollution control and communication regulations. On the high seas, the flag state is granted exclusive jurisdiction with only limited exceptions.

It should be noted that the provisions of UNCLOS regarding the protection and preservation of the marine environment do not apply to any warship or other vessel owned or operated by a state and used, for the time being, only on government non-commercial service. However, each state must ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such vessels owned or operated by it, that such vessels act in a manner consistent, so far as is reasonable and practicable, with UNCLOS.

Port State Control

Under general international law, the port state has the authority to impose conditions for the entry of foreign ships into its ports. Under UNCLOS, when foreign ships are voluntarily in the port of another state, the host state has broad inspection and enforcement powers for pollution violations occurring not only in the port and internal waters, but also in the territorial seas and the EEZs of other coastal states when those states request the port state’s assistance in enforcement. A flag state may also request the port state’s assistance in relation to enforcement of pollution offenses on the high seas. A port state must comply with requests from other states for investigation of discharge violations. If a port state determines that a foreign ship is unseaworthy and threatens marine environmental damage, it may prevent the ship from sailing until the deficiencies are corrected.

Maritime Boundaries in the Arctic

To date, there are eight bilateral agreements delimiting maritime zone and continental shelf boundaries between the five countries that border the Arctic Ocean, in addition to unresolved boundary issues. Lack of clearly delimited maritime boundaries for territorial seas and EEZs is of potential concern for future shipping in the Arctic. Ship operators may face uncertainty over which national shipping laws are applicable in a disputed zone, particularly with reference to laws and regulations adopted pursuant to Article 234 of UNCLOS and with regard to penalties and compensation for damage caused by ship-source spills. Unresolved maritime boundaries may also reduce opportunities to develop marine resources and expand shipping in the Arctic. This situation is, however, no different than in other maritime areas where maritime boundaries are not agreed.

High Seas

Trans-Arctic shipping across the high seas of the Arctic (i.e., beyond EEZs) raises other governance issues. Because a coastal state’s authority to regulate foreign shipping does not extend to the high seas, transiting ships would only be subject to global shipping safety, environmental and security rules and standards adopted through the IMO and as may be applied by the flag states. Thus the adequacy of international shipping standards for Arctic conditions and the need to provide special protective measures for the Arctic high seas must be considered.

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