The Governance of Arctic Shipping Activities

(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.

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