Abstract
International environmental law has been augmented during the past few decades, and in consequence there has been an emergence of several quintessence principles that in turn provide for a framework of customary environmental law.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Donald R. Rothwell and Christopher C. Joyner, “Global environmental protection instruments and the polar marine environment” in Protecting the Polar Marine Environment, Davor Vidas (ed.), 2000, Cambridge University Press, pp. 57–77. Note that, a major part of international environmental law is aimed at regulating environmental problems by setting common international standards and objectives for prevention or mitigation of harm. It also strives to provide a flexible rule-making process that can permit flexible and regular amendments, since technological and scientific developments require such an approach. However, the provisions on the protection of the marine environment as enshrined in UNCLOS are vitally important. They express principles of international environmental law and provide a framework for establishing a broad and clear structure for the law. UNCLOS is viewed by some as the most significant and comprehensive international environmental agreement that exists today.
- 2.
See Budislav Vukas, United Nations Convention on the Law of the Sea and the Polar Marine Environment, Davor Vidas (ed.), Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention, Cambridge University Press 2000, pp. 35–37. Note that, the question of whether or not the UNCLOS is applicable to the Arctic seas has been raised several times, due to the specific geographical, climatic, historical and political circumstances that characterize the Arctic region. It is also a fact that the UNCLOS does not indicate which sea or ocean is or isn’t applicable.
- 3.
See James Graff, Fight for the top of the World, Time Magazine, Vol. 170, No. 13, October 2007, and Mckenzie Funk, Arctic Landgrab, National Geographic, Vol. 215, No. 5, May 2005.
- 4.
Supra note 1, p. 36.
- 5.
United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, available at; http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (date accessed 2 February 2012).
- 6.
Ibid. Note that, Article 196(1) read together with Article 1(4) gives an amalgamated understanding of accidental-discharge. Article 1(4) reads thus, “…the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea and water and reduction of amenities”.
- 7.
Supra note 1, p. 42, where it is stated that measures taken in accordance with Part XII “shall include those necessary protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life”.
- 8.
Meinhard Doelle, From Hot Air to Action? Climate Change, Compliance and the Future of International Environmental Law, 2005, Thomson/Carswell, p. 23.
- 9.
Alan E. Boyle, “Marine Pollution under the Law of the Sea Convention”, The American Journal of International Law, 1985, Vol. 79, p. 350.
- 10.
Supra note 3, Note that UNCLOS does not contain technical requirements but by means of “rules of reference” requires Flag States to give effect to existing yet generally accepted international rules and standards, i.e. GAIRAS.
- 11.
See Report of the United Nations Secretary General, “Impact of the entry into force of the 1982 United Nations Convention on the Law of the Sea on related, existing, and proposed instruments and programmes”, UN Doc. A/52/491, Section J, paras 8–9. Note that the main GAIRAS relating to vessel-source pollution are embodied in the global regulatory instrument adopted by IMO. Since the provision does not express the content of such laws and regulations adopted by the Flag State, this part can discretionally apply to vessels registered in their territory or flying their flags higher standard than the GAIRAS, i.e. the annexes of MARPOL 73/78 that have entered into force.
- 12.
John N.K. Mansell, Flag State Responsibility: Historical Development and Contemporary Issues, 2009, Springer, pp. 4–5.
- 13.
Ibid., Note that in para 1.5, it is indicated that the central hypothesis of Flag State responsibility is that the extant regulatory regime is adequate in law, however, its enforcement does not deliver the intent of UNCLOS. A possible framework for national legislation to give effect to the relevant provisions of necessary IMO instruments is referred to in “Guidelines for Maritime Legislation”, a United Nations’ Publication, ST/ESCAP/1076.
- 14.
Supra note 2, Note that these provisions can be invoked to uphold both Canada’s and Russian Federation’s restraining laws and regulations for control of vessel-source pollution in some areas of NWP and NSR.
- 15.
Veronica Frank, The European Community and the Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations in the Regional Level, 2007, Martinus Nijhoff Publishers, pp. 198–199, where it is highlighted that the environmental jurisdiction of Coastal States diminishes to a considerable extent in straits used for international navigation, such as the English channel, the Dover and Gibraltar straits, where foreign ships enjoy the right of innocent passage. This right, unlike the right of innocent passage in the territorial sea, can never be suspended and shall not be impeded unless there is an alternative route of similar convenience. The author goes on to say that, the regulatory powers of the Coastal States bordering the straits are limited to the prescription of navigational rules which have to conform to “applicable” international rules and need to be approved by IMO. In the strait, therefore, navigational and discharge standards contained in instruments to which Coastal States are contracting parties represent maximum standards.
- 16.
Ibid.
- 17.
Supra note 5.
- 18.
Supra note 3.
- 19.
Ibid.
- 20.
Supra note 12.
- 21.
E.J. Molenaar, Book Review of “Coastal State Regulation of International Shipping” by L.S. Johnson, 22 International Journal of Marine and Coastal Law, 2007, pp. 183–186.
- 22.
Supra note 12.
- 23.
Ibid.
- 24.
Supra note 5, Article 234.
- 25.
Aldo Chircop, “International Arctic Shipping: Towards Strategic Scaling-Up of Marine Environmental Protection” in Changes in the Arctic Environment and the Law of the Sea, Myron H. Nordquist, John Norton Moore and Tomas H. Heidar (eds.), 2010, IDC Publishers, Martinus Nijhoff Publishers and VSP, p. 177, where it is indicated that it is important to acknowledge the provisions incorporated exclusively for ice-covered areas in UNCLOS and its relationship to the IMO’s mandate for establishing global rules and standards for International shipping since only the IMO can espouse global rules and standards for shipping.
- 26.
Arctic Waters Pollution Prevention Act, R.S.C. 1985, c. A-12, adopted in 1970. Regulations were also adopted in 1978 under the Act, namely Arctic Shipping Pollution Prevention Regulations, C.R.C., c. 353 and Arctic Waters Pollution Prevention Regulations, C.R.C., c. 354. The Act is said to have extended Canadian jurisdiction to 100 nautical miles from the territorial sea baselines in waters north of 60 degrees latitude. Bill C-3 was introduced in December 2008 to extend that limit to 200 nautical miles. The Bill became An Act to amend the Arctic Waters Pollution Prevention Act, S.C. 2009, C. 11, proclaimed into force with effect on 1 August 2009.
- 27.
Supra note 12, p. 182.
- 28.
Ashley J. Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims, Martinus Nijhoff Publishers (The Hague/Boston/London), 1992, Second edition, pp. 339–353, See inter alios D.M. McRae and D.J. Goundrey, “Environmental Jurisdiction in arctic waters: the extent of article 234”, University of British Columbia Law Review, Vol. 16:2, 1982, and R. Hubert, “Article 234 and Marine Pollution Jurisdiction in the Arctic” in Oude Elferink A.G. and Rothwell, D.R. (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, 2001, Martinus Nijhoff Publishers, pp. 249–267.
- 29.
D.M. McRae, “The Negotiation of Article 234” in Politics of the Northwest Passage, Franklyn Griffiths (eds.), 1987, McGill-Queen’s University Press, pp. 98–114.
- 30.
Supra note 12.
- 31.
Oran R. Young, “Arctic Shipping: An American Perspective” in Politics of the Northwest Passage, Franklyn Griffiths (eds.), 1987, McGill-Queen’s University Press, p. 124.
- 32.
Alan Khee-Jin Tan, Vessel-Source Marine Pollution: The Law and Politics of International Regulation, Cambridge University Press, 2006, p. 234.
- 33.
Supra note 3, Article 234, Note the wordings “non-discriminatory”, “shall have due regard” and “based on the best available”.
- 34.
Aldo Chircop, “Challenges for the Regulation of International Shipping through the Arctic” in Impacts of Climate Change on the Maritime Industry, The proceedings of the Conference on Impacts of Climate Change on the Maritime Industry, 2–4 June 2008 (Sweden), Neil Bellefontaine and Olof Linden (eds.), 2009, World Maritime University Publications, p. 212.
- 35.
Cynthia Lamson, “Arctic Shipping, Marine Safety and Environmental Protection”, Marine Policy, Vol. 11, 1987, p. 3, and Øystein Jensen, The IMO Guidelines for Ships Operating in Arctic Ice-Covered Waters: From Voluntary to Mandatory Tool for Navigation Safety and Environmental Protection?, The Fritjof Nansen Institute, FNI-rapport 2/2007, p. 7.
- 36.
Myron H. Nordquist, United Nations Convention on the Law of the Sea, 1982: A Commentary, University of Virginia, Center for Oceans Law and Policy, Vol. 3, pp. 392–398.
- 37.
Supra note 12.
- 38.
Ibid.
- 39.
Ibid.
- 40.
Ibid., where it has been highlighted that “Consequently, Canada considers that its accession to the Protocol of 1978, as amended, relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL 73/78) is without prejudice to such Canadian laws and regulations as are now or may in the future be established in respect of Arctic waters within or adjacent to Canada (IMO, 2005)”.
- 41.
Katarzyna Zysk, Russia’s Arctic Strategy: Ambitions and Constraints, Joint Force Quarterly, Issue 57, 2nd Quarter, 2010, available at; http://www.ndu.edu/press/lib/images/jfq-57/zysk.pdf (date accessed 20 February 2012), where the contemporary practice has been highlighted by stating that, the question of the legal status of the NSR complicates the fact that it is not a single shipping channel, but a series of different shipping lanes stretching between 2,200 and 2,900 nautical miles, depending on ice conditions. According to Russian experts, “the integral nature of the NSR as a transport route is not affected by the fact that individual portions of it, at one time or another, may pass outside boundaries of internal waters, territorial waters and EEZ, i.e. it may pass into the high seas.” The NSR may thus include sea lanes running beyond Russia’s EEZ as long as part of the voyage includes waters under undisputed Russian jurisdiction.
- 42.
Donald R. Rothwell, The Polar Regions and the Development of International law, 1996, Cambridge University Press, p. 213.
- 43.
See Supra note 6 for further analysis of IMO’s role.
- 44.
Proshanto K. Mukherjee, “The Penal Law of Ship Source Marine Pollution” in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas Mensah, 2007, Martinus Nijhoff Publishers, pp. 480–485, Note that marine pollution in this context has been immaculately divided into “voluntary” and “accidental” and “voluntary” has been further sub-divided into “deliberate (dumping)” and “operational (discharge)”.
- 45.
Guidelines for Ships Operating in Arctic Ice-Covered Areas, Adopted by IMO MSC/Circ. 1056, MEPC/Circ. 399, of 23 December 2002, available at; http://www.imo.org/blast/blastDataHelper.asp?data_id=29985&filename=A1024(26).pdf (date accessed 22 February 2012).
- 46.
Patricia Birnie and Alan Boyle, International Law and the Environment, 2002, Oxford University Press, p. 363, Note that Article 2 of MARPOL 73/78 defines “discharge” which covers any means of release such as disposal, spilling, leaking, pumping, emitting and emptying, but does not include dumping in the meaning of the London Convention.
- 47.
Whereby, Annex I deals with prevention of pollution by oil, Annex II on control of pollution by noxious liquid substances in bulk, Annex IV on prevention of pollution by sewage from ships, Annex V on prevention of pollution by garbage from ships and Annex VI on the prevention of air pollution from ships.
- 48.
All the Arctic countries are signatories to MARPOL 73/78.
- 49.
Bill C-3: An Act to Amend the Arctic Waters Pollution Prevention Act, Legislative Summary, LS-617E, Penny Becklumb Industry, Infrastructure and Resources Division, 19 December 2008, Accessed at; http://www.parl.gc.ca/Content/LOP/LegislativeSummaries/40/1/401c3-e.pdf (date accessed 22 February 2012).
- 50.
Supra note 32, p. 8.
- 51.
Ibid.
- 52.
Ibid.
- 53.
Ibid.
- 54.
Ibid.
- 55.
Ibid.
- 56.
PAME: Working Group on the Protection of the Arctic Marine Environment, Report to the Third Ministerial Conference on the Protection of the Arctic Environment, 20–21 March 1996 Inuvik, Canada, Ministry of Environment, p. 95, Note that the Convention provides minimum standards for contracting parties in that domestic laws, regulations and measures shall be no less effective in preventing, reducing and controlling pollution from ocean dumping than the global rules and standards. See also Olav Schram Stokke, Radioactive waste in the Barents and Kara Seas: Russian implementation of the global dumping regime in Protecting the Polar Marine Environment, Davor Vidas (ed.), 2000, Cambridge University Press, p. 203.
- 57.
Adopted on 29 December 1972 in London, Mexico City, Moscow and Washington, D.C., and entered into force on 30 August 1975.
- 58.
Dumping of matter listed in Annex I is prohibited; dumping of matter listed in Annex II is allowable only by special permit; dumping of matter listed in Annex III is allowable only by general permit.
- 59.
Official webpage of IMO, available at; http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx (date accessed 29 February 2012).
- 60.
Ibid.
- 61.
Official Webpage of IMO, available at; http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx (date accessed 23 February 2012), Note that the information gathered from the webpage was as regards the status on LC72.
- 62.
Official Webpage of IMO, available at; http://www.imo.org/OurWork/Environment/SpecialProgrammesAndInitiatives/Pages/London-Convention-and-Protocol.aspx (date accessed 23 February 2012), Note that the information fathered from the Webpage was as regards the summary of LC72.
- 63.
The amendments entered into force in February 2007.
- 64.
James D. Ford, Barry Smit, Johanna Wandel, “Vulnerability to Climate Change in the Arctic: A case study from Arctic Bay, Canada” in Global Environmental Change, 2006, Vol. 6, Issue: 2, Elsevier publisher, pp. 145–160.
- 65.
(IMO) Adoption: November 1990; Entry into force: 13 May 1995.
- 66.
(IMO) Adopted in 2000.
- 67.
Official Webpage of IMO, available at;
http://www.imo.org/About/Conventions/ListOfConventions/Pages/Protocol-on-Preparedness,-Response-and-Co-operation-to-pollution-Incidents-by-Hazardous-and-Noxious-Substances-(OPRC-HNS-Pr.aspx (date accessed 23 February 2012).
- 68.
Ibid.
- 69.
“Governance of Arctic Shipping” in Arctic Marine Shipping Assessment, 29 April 2009, available at; http://www.arctic.gov/publications/AMSA/governance.pdf (date accessed 23 February 2012). Note that OPRC is a framework for international cooperation in combating incidents or threats of marine oil pollution, to which all five Arctic States including the other three States that are located in the Arctic circle, i.e. eight Arctic States are parties. Article 10 of the OPRC promotes the development of bilateral and multilateral agreements for oil pollution preparedness and response, such as on a regional basis, See also, See Infra note 33 in Chap. 2, where it is elaborated that, the OPRC convention provides yet another foundation for Polar States to develop comprehensive strategies to respond to maritime incidents, which have an environmental repercussion. By placing minimum obligation on the Flag States to ensure that their vessels have an oil pollution emergency response plan. Polar States can be reassured that the vessels from OPRC convention parties, which operate in their waters, have met this standard. The requirements for cooperation among States to deal with such incidents are also important, given the difficulties in responding to emergencies in polar waters. Nevertheless, the significant issue is whether States should meet higher standards than the OPRC when venturing in the Arctic waters. The Canadian AWPPA is a notable example in this regard.
- 70.
Ibid.
- 71.
Official Webpage of IMO, available at; http://www.imo.org/about/conventions/listofconventions/pages/international-convention-for-the-prevention-of-pollution-from-ships-(marpol).aspx (date accessed 23 February 2012), parties to MARPOL 73/78 may enforce the convention in three ways; through ship inspections to ensure vessels meet minimum technical standards, by monitoring ship compliance with discharge standards, and by punishing ships which violate the standards, See also Andrew Griffin, “MARPOL 73/78 and Vessel Pollution: A Glass Half Full or Half Empty?”, Indiana Journal of Global Legal Studies, 4 January 1994, Vol. 1, Issue 2, Article 10, pp. 489–513, Note that, the revised MARPOL 73/78, Annex I Regulations for the prevention of pollution by oil was adopted in October 2004 and enters into force on 1 January 2007. It comprises the various amendments adopted since MARPOL 73/78 entered into force in 1983, including the amended regulation 13G (regulation 20 in the revised Annex) and regulation 13H (regulation 21 in the revised Annex) on the phasing-in of double hull requirements for oil tankers. It also separates, in different chapters, the construction and equipment provisions from the operational requirements and makes clear the distinctions between the requirements for new ships and those for existing ships. Unique and updated as it may seem, the revision provides a more user friendly and compatible, simplified and transparent Annex I, to be regulated in regions which are sensitive and pristine in nature. This is, of course, based on a general context, rather than being tailor-made for a specific region including the Arctic.
- 72.
N.B. 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.
- 73.
International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (with annex official Russian and Spanish translations and Final Act of the International Legal Conference on marine pollution damage, 1969). Concluded at Brussels on 29 November 1969, available at; https://treaties.un.org/doc/Publication/UNTS/Volume%20970/volume-970-I-14049-English.pdf (date accessed 5 August 2014), N.B. that the 1969 Intervention Convention applied to casualties involving pollution by oil. In view of the increasing quantity of other substances, mainly chemical, carried by ships, some of which would, if released, cause serious hazard to the marine environment, the 1969 Brussels Conference recognized the need to extend the Convention to cover substances other than oil. The 1973 London Conference on Marine Pollution therefore adopted the Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil. This extended the regime of the 1969 Intervention Convention to substances which are either listed in the Annex to the Protocol or which have characteristics substantially similar to those substances. The 1973 Protocol entered into force in 1983 and was amended in 1996 and 2002 to update the list of substances attached to it.
- 74.
Ibid., where Article III(b) states that “… [t]he coastal State shall notify without delay the proposed measures to any persons physical or corporate known to the coastal State, or made known to it during the consultations, to have interests which can reasonably be expected to be affected by those measures. The coastal State shall take into account any views they may submit”.
- 75.
Morrison, Anthony P. (2012) Places of Refuge for Ships in Distress: Problems and Methods of Resolution. Legal Aspects of Sustainable Development. Martinus Nijhoff. doi: 10.1163/9789004218888.
- 76.
Official Website of Transport Canada, available at; http://www.tc.gc.ca/eng/marinesafety/tp-menu-515-3050.htm (date accessed 5 August 2014), N.B. Many states, including Canada, give their ministers, harbour authorities or delegated persons the power to permit the entry, or conversely, to take unilateral action to remove or destroy a vessel where there is a risk to the safety of a port, or the coastal environment. This in other words translates into the “power of intervention” to respond to an oil-threat at the beginning of a casualty. This power underlies the importance of “places of refuge” as an international issue requiring action for the protection of commercial, social and environmental interests. The Places of Refuge Contingency Plan is already in place and applies to all situations where a ship is in need of assistance and requests a place of refuge within Canadian waters. This includes Canada’s internal waters, territorial sea and the Exclusive Economic Zone. Section 3 of the Places of Refuge Contingency Plan stipulates that the most suitable place of refuge can only be determined after the details of the specific incident are known and thoroughly considered. To pre-designate places of refuge may be of limited value, as the limitations, operational considerations, hazards and associated risks will vary greatly with each incident. Experience in Canada has shown that because no two incidents, and the circumstance surrounding the incident, are very similar, the value of pre-planning lies primarily in ensuring information will be readily available (i.e. nautical charts and publications, port information, environmental and sensitivity data), along with the relevant specialists. On the other hand, the approaches adopted by the Norwegian Coastal Directorate is to identify and list “places of refuge” and places of grounding in the NCAs Emergency Response Plan. These “places of refuge” and grounding are utilized in cases where there is a danger of severe pollution as a result of accidents at sea. In other words, they form an integral part of oil spill intervention for Norway. The procedure developed by the Directorate assumes that allowing the leaking oil cargo to contaminate the sea along Norway’s coastline could lead to the pollution of vast coastal areas and hence towing the damaged ship to a place of refuge or grounding would be the preferred option, as the spill could then be better controlled, contained and cleaned. The procedure assumes that the ship in need of assistance passing along Norway’s coast can be towed ashore to a grounding site to prevent it from sinking. As each operation is unique, the Emergency Response Plan requires evaluation on a case-by-case basis of using a place of refuge or grounding from the list provided. This list contains 69 designated places of refuge and 62 places of grounding along the Norwegian coast. These designated sites help in the process of accurate, efficient and timely decision-making during an emergency involving a damaged vessel. The two lists are constantly reviewed and updated as new information is obtained on the sea, environment and dynamics of ship traffic. It is by now understood that the customary right of access to a place of refuge for vessels in distress has become a sensitive yet complex issue from increasingly conflicting values. The need to stop a leak or contain the damage done by oil spill might be the first step in intervention, however, determining and access to a “place of refuge” might be seen as a major part of the intervention so that every possibility of a “near spill” occurring again from the same leak might be taken care of in the so-called place of refuge. Till date, there has been numerous interventions that have taken place in various incidents, but they differ from each other in terms of ship-damage and authority-action. For some, the immediate response was prolonged because of the given situation and for some it was not possible because of late-response. Either ways, states continue to address intervention in their respective national legislation to deal with circumstances as an accountable state under international law.
- 77.
N.B. Disputes in the field of the law of the sea cannot be ruled out, however, for example over the delimitation of the continental shelf. Several unresolved issues can be mentioned in this context: (1) The United States and Canada are involved in a dispute over the Northwest Passage and a part of the Beaufort Sea, which is estimated to hold vast oil deposits. The United States considers the Northwest Passage as an international strait, whereas Canada considers the route its internal waters. (2) Denmark and Canada on the one hand, and Russia on the other hand, disagree on jurisdiction over the Lomonosov Ridge in the Arctic Ocean. (3) Most nations reject Norway's claim of a 200 nautical miles zone around Svalbard on the basis of conditional sovereignty over the island and have refused to recognise their “fisheries protection zone” around it. (4) A dispute is ongoing between Canada and Denmark over Hans Island, which is located in the strait that separates Ellesmere Island from northern Greenland and connects Baffin Bay with the Lincoln Sea.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2015 The Author(s)
About this chapter
Cite this chapter
Johansson, T., Donner, P. (2015). Status Quo of Arctic International Instruments. In: The Shipping Industry, Ocean Governance and Environmental Law in the Paradigm Shift. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-12541-1_1
Download citation
DOI: https://doi.org/10.1007/978-3-319-12541-1_1
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-12540-4
Online ISBN: 978-3-319-12541-1
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)