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Governance of Arctic Marine Shipping: A Short Cruise

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A Three Part Governance 'Cruise' Follows with Victor Santos-Pedro Completing the ... Chapter V Deals With Safety of Navigation (For Example, Provides for ... – PowerPoint PPT presentation

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Title: Governance of Arctic Marine Shipping: A Short Cruise


1
Governance of ArcticMarine Shipping A Short
Cruise
  • Professor David L. VanderZwaag
  • Director, Marine Environmental Law Institute,
    Dalhousie University and
  • Canada Research Chair in Ocean Law and Governance
  • Maritime Symposium 2008
  • Halifax, Nova Scotia, Canada
  • November 2008

2
  • Introduction
  • One Overall Image Helps Capture the Governance of
    Arctic Marine Shipping
  • A Complex Mosaic with Four Main Parts to the
    Puzzling Governance Picture
  • The 1982 Law of the Sea Convention as the
    Overarching Framework
  • International Conventions/Documents Setting
    Governance Obligations for States To Control
    Shipping (International Public Maritime Law
    Framework)
  • International Conventions/Documents Aimed at the
    Shipping Industry and Relevant Practices of the
    Shipping Industry (International Private Maritime
    Law Framework)
  • Special National Legislative and Regulatory
    Requirements for Arctic Shipping (Canada and
    Russia)

3
  • A Three Part Governance Cruise Follows with
    Victor Santos-Pedro Completing the Voyage by
    Highlighting Canadian and Russian Requirements
    for Arctic Shipping
  • 1. The 1982 Law of the Sea Convention (LOSC)
    The Overarching Framework
  • LOSC Establishes a Delicate Balancing Act
    Among the Powers of Coastal States, Flag States
    and Port States To Control Shipping
  • Coastal State Jurisdiction and Coastal State
    Control Over Foreign Vessels
  • Varies According to Six Maritime Zones
  • Special Jurisdiction Bestowed by Article 234 for
    Ice-Covered Waters

4
  • Six Maritime Zones
  • Internal Waters
  • Maximum Jurisdiction Over Foreign Ships, E.G.
  • Prohibition of Risky Vessels Such as Those
    Carrying Radioactive Wastes, Oil Tankers
  • Zero Pollution Standards
  • Various Ways To Establish, E.G.
  • Historic Waters
  • Straight Baselines Around a Deeply Indented
    Coastline or a Fringe of Islands in the Immediate
    Vicinity of the Coast
  • Exactly Which Arctic Water May Be Validly Claimed
    as Internal Has Been Contentious, E.G.
  • Canadas Enclosure of Its Arctic Archipelago with
    Straight Baselines Effective January 1, 1986
  • USA and Other States Protested

5
(No Transcript)
6
  • Territorial Sea
  • 12 Nautical Mile Zone
  • Coastal States Have Sovereignty But Subject to
    Right of Innocent Passage of Foreign Ships
  • Coastal State Cannot Unilaterally Impose Design,
    Construction, Crewing or Equipment Standards
  • Coastal State Can Designate Sea Lanes and Traffic
    Separation Schemes, Particularly for Ships
    Carrying Hazardous Cargoes
  • Some Tensions Over How Far a Coastal State Can
    Control Transits of Foreign Ships, E.G.
  • Imposing More Stringent Pollution Standards Than
    Those in the Global MARPOL 73/78 Convention
  • Requiring Notice/Authorization for Ships Carrying
    Hazardous or Noxious Substances

7
  • Contiguous Zone
  • 12 N.M. Contiguous Zone to the Territorial Sea
    (up to a Seaward Limit of 24 N.M.)
  • Coastal State Has Jurisdiction To Prevent
    Infringement of Its Customs, Immigration and
    Sanitary Laws
  • Exclusive Economic Zone (EEZ)
  • 200 N.M. Zone Measured from Territorial Sea
    Baselines
  • Coastal State May Only Adopt Pollution
    Prevention/Control Laws Applicable to Foreign
    Ships If in Conformity with Global
    Rules/Standards Adopted through IMO
  • Coastal State Has Very Limited Enforcement
    Powers, E.G.
  • Actual Arrest and Detention of a Foreign Vessel
    Only Allowed If a Violation Causes Major Damage
    or a Threat of Major Damage to the Coastline or
    Marine Resources
  • Only Monetary Penalties May Be Imposed

8
  • Continental Shelf
  • All Five Arctic Coastal States Have Extended
    Continental Shelf Claims Beyond 200 N.M. (Russian
    Federation and Norway Have Already Made
    Submission to Commission on the Limits of the
    Continental Shelf)
  • If Legitimated, Extended Claims Would Give
  • Rights to Mineral Resources
  • Rights to Sedentary Species
  • Very Limited Role for a Coastal State to
    Interfere with Navigational Rights (E.G.
    Establishing 500 Metre Safety Zones Around Drill
    Ships or Production Installations)
  • International Straits
  • Coastal States Bordering a Strait Retain Very
    Limited Powers over Foreign Ships Because of
    Their Right to Transit Passage, E.G.
  • Only Global Pollution Standards
  • Sealanes and Traffic Separation Schemes, Only
    with IMO Approval

9
  • Application of International Straits Regime in
    the Arctic Has Been Subject to Controversy
  • What Degree of Use Is Necessary to Transform an
    Area into an International Strait?
  • Example of USA-Canada Disagreement over the
    Status of the Northwest Passage
  • Special Coastal State Jurisdiction Bestowed by
    Article 234 of LOSC
  • Coastal States Granted Special Powers To Adopt
    and Enforce Pollution Prevention and Control Laws
    in Ice-Covered Waters, E.G.
  • Special Construction and Crewing Standards
  • Pollution Prohibitions
  • Various Questions of Interpretation, E.G.
  • Exactly What Waters (Ice-Covered for Most of the
    Year) Are Subject to the Special Controls?
  • What Is the Significance of Granting Special
    Coastal State Powers Only in the EEZ?

10
  • Flag State Control
  • The Mainstay of Shipping Control
  • Obligation of Flag States to Apply and Enforce
    International Shipping Standards to Their Flagged
    Vessels
  • Exclusive Flag State Jurisdiction on the High
    Seas Beyond National Jurisdiction with Limited
    Exceptions
  • A States Warships and Other Ships Used Only on
    Government Non-Commercial Service Enjoy Sovereign
    Immunity
  • Cannot Be Inspected and Prosecuted by Other
    States
  • Flag State Required To Ensure That Such Ships
    Comply as Far as Practicable with International
    Standards
  • Port State Control
  • Port States Have Broad Inspection and Enforcement
    Powers over Ships Voluntarily in Their Ports for
    Alleged Pollution Violations
  • Port States Allowed To Prevent a Ship from
    Leaving Port of a Ship Is Unseaworthy and
    Threatens Marine Environmental Damage

11
  • 2. International Conventions/Documents Setting
    Governance Obligations for States To Control
    Shipping Fall into Three Major Categories
  • Conventions/Codes Covering Ship Safety and
    Seafarer Rights and Standards in General
  • Conventions/Codes Covering Vessel-Source
    Pollution in General
  • Specific Guidelines for Arctic Shipping (To Be
    Covered by Victor)

12
  • Conventions/Codes Covering Ship Safety and
    Seafarer Rights and Standards in General
  • Maritime Safety
  • Four Key Agreements (A Main Sail and Jibs)
  • The Main Sail is the Safety of Life at Sea
    (SOLAS) Convention, 1974
  • Has 12 Chapters Addressing Key Components of
    Ship Safety, E.G.
  • Chapter II-1 Covers Construction and Subdivision
    of Ship (For Example, Passenger Ships Have
    Subdivision Requirements into Watertight
    Compartments so Ships Will Remain Afloat in Case
    of Hull Damage
  • Chapter II-2 Sets Out Fire Detection and Fire
    Extinction Requirements

13
  • Chapter III Establishes Life-Saving Equipment
    Requirements, Such as Life Boats and Life Jackets
  • Chapter IV Covers Radiocommunications (For
    Example, All Passenger Ships and All Cargo Ships
    of 300 Gross Tonnage or More on International
    Voyages Are Required To Carry Communication
    Equipment for Improving the Chances of Rescue
    after an Accident, Such as Satellite Emergency
    Position Indicating Radio Beacons (EPIRBS)
  • Chapter V Deals With Safety of Navigation (For
    Example, Provides for Establishment of Mandatory
    Vessel-Routing under IMO Auspices)

14
  • Chapter VII Addresses Carrying of Dangerous
    Goods, E.G.
  • Part A Makes Mandatory the International Maritime
    Dangerous Goods (IMDG) Code
  • Part C Covers Construction and Equipment of LNG
    Carriers and Requires Compliance with the
    International Gas Carrier (IGC) Code
  • Chapter XI-2, Adopted in December 2002, Seeks To
    Enhance Maritime Security, E.G.
  • Establishing the International Ship and Port
    Facilities Security (ISPS) Code
  • Requires Ships To Have Ship Security Alert
    Systems (Not Raising an Alarm Onboard But
    Signaling a Security Emergency To a Shore-based
    Authority)

15
  • Three Jib Sails on Maritime Safety
  • International Convention on Load Lines (1966)
  • Convention on the International Regulations for
    Preventing Collisions at Sea (1972)
  • International Convention on Maritime Search and
    Rescue (1979)
  • Seafarer Rules and Standards
  • General Rules and Standards for Seafarers Have
    Been Established Through a Fragmented Array of
    Instruments
  • Standards for Decent Working and Living
    Conditions for Seafarers, Such as Hours of Rest
    and Work, Wages, Food, Medical Care and
    Accommodation, Have Been Set Out in Scores of
    International Instruments Adopted Since 1920
  • A Majority of These Instruments Have Been
    Consolidated into a Maritime Labour Convention,
    2006 (Expected To Come into Force by 2011)
  • Basic Training and Certification Requirements for
    Seafarers Are Set Out in the International
    Convention on Standards of Training,
    Certification and Watchkeeping for Seafarers
    (1978/1995)

16
  • No Specific Legally Binding Standards for
    Seafarers Working in the Arctic or Antarctic Have
    Been Forged
  • No Standardized Crew Training Courses Have Been
    Developed
  • No Uniform Requirements for Training and
    Experience of Ice Navigators Have Been Agreed
    Upon
  • No Special Requirements for Minimum Hours of Rest
    or Maximum Hours of Work

17
  • Conventions/Codes Covering Vessel-Source
    Pollution in General
  • Also a Case of Main Sail and Jib Sails
  • MARPOL 73/78 the Main Sail
  • Sets Vessel-Source Pollution Standards through
    Six Annexes
  • Annex I (Oil)
  • Annex II (Noxious Liquid Substances)
  • Annex III (Harmful Substances in Packaged Form)
  • Annex IV (Sewage
  • Annex V (Garbage)
  • Annex VI (Air Pollution)

18
  • Considerable Pollution Still Allowed Especially
    for Oil, Sewage and Garbage, E.G.
  • Oily Ballast Water from Tankers
  • (30 Liters Per Nautical Mile If Discharged While
    En Route and Over 50 N.M. Offshore)
  • Untreated Sewage If Beyond the 12 N.M.
    Territorial Sea (Ship Must Be Proceeding at Not
    Less Than 4 Knots and the Discharge Must Not Be
    Instantaneous but at a Moderate Rate)

19
  • Garbage (Allowable Deposits Based on Concept of
    Distance from Land, E.G. Cans, Bottles, Can Be
    Disposed of If Beyond 12 N.M.)
  • Special Areas Can Be Established Through IMO
    Where Stricter Pollution Standards Can Be Made
    Applicable for Oil, Noxious Liquid Substances and
    Garbage
  • Antarctic Declared a Special Area under Annexes I
    (Oil), II (Noxious Liquid Substances) and V
    (Garbage)
  • Arctic Has Not Been Proposed for Special Area
    Designation
  • Annex VI Allows Special Sulphur Oxide Emission
    Control Areas To Be Declared Where Sulphur
    Content of Ship Fuels Would Be Lowered for
    Designated Regions (1.5 m/m) from the Global
    Standard of (4.5 m/m) but Neither Polar Region
    Has Been Proposed for Special Treatment
  • Global Standards for Garbage and Air Pollution
    from Ships in the Process of Being Reviewed and
    Strengthened By IMO

20
  • Four Other Jib Sail Conventions Round Out the
    Vessel-Source Pollution Regime
  • London Convention 1972 and Its 1996 Protocol
    Governing Ocean Dumping
  • International Convention on Oil Pollution
    Preparedness, Response and Cooperation (1990) and
    the Protocol on Hazardous and Noxious Substances
    (2000)
  • International Convention on the Control of
    Harmful Anti-fouling Systems on Ships (2001)
  • International Convention for the Control and
    Management of Ships Ballast Water and Sediment
    (2004)
  • The Ballast Water Convention Encourages Regional
    Agreements on Ballast Water Control Especially
    for Enclosed or Semi-Enclosed Seas
  • The Antarctic Regional Has Undertaken Studies of
    Ballast Water Practices from Ships Entering
    Antarctic Waters and Has Received IMO Endorsement
    of Guidelines for Ballast Water Exchange in the
    Antarctic Treaty Area (2007)
  • Ballast Water Practices and Threats Have Ye to Be
    Placed on the Arctic Agenda

21
  • 3. International Private Maritime Law Framework
  • Various Contractual Arrangements Between Private
    Parties May Also Govern Shipping in the Arctic,
    E.G.
  • Carriage of Goods Contracts
  • Carriage of Passenger Contracts
  • Marine Insurance Contracts
  • Salvage Contracts
  • Limitations Relating to Arctic Salvage and Marine
    Insurance Are Emphasized Among the Technical
    Reports 28 Findings
  • Salvage
  • In the Arctic, there is little or no
    governmental or commercial salvage response to
    support commercial shipping. This is possibly
    less the case on the Northern Sea Route, where
    the Russian Federation maintains a substantial
    fleet in support of shipping. Generally, there is
    limited infrastructure for ship repair and/or
    salvage and pollution countermeasures capability
    based in the Arctic basin. (Finding 21)
  • Marine Insurance
  • The availability and cost of marine insurance is
    a major restraint on Arctic marine shipping. A
    major constraint continues to be the lack of an
    actuarial record to enable insurers to assess and
    cost the risk. However, the insurance industry
    appears to be willing to underwrite Arctic
    shipping on a case-by-case basis. The London
    market has published seasonal additional premiums
    for ships sailing to the Arctic. (Finding 23)

22
  • Various Conventions Channel Liability and
    Compensation To Private Parties for Pollution
    Damages
  • Oil Pollution from Tankers
  • 1992 Civil Liability Convention
  • 1992 Fund Convention
  • All Arctic States Parties Except USA
  • Bunker Oil Spills from Non-Tankers
  • International Convention on Civil Liability for
    Bunker Oil Pollution Damage (2001)
  • Will Enter into Force 21 November 2008
  • Among Arctic States, Only Norway Is a Party
  • Hazardous and Noxious Substance (HNS) Spills from
    Ships
  • International Convention on Liability and
    Compensation for Damage in Connection with the
    Carriage of Hazardous and Noxious Substances by
    Sea (1996)
  • Not Yet in Force
  • Only Russian Federation a Party

23

End of Short Cruise!!
http//www.saskschools.ca/gregory/arctic/sea/walr
us2.jpg
The contributions of the following co-authors to
the Arctic Marine Shipping Governance chapter are
gratefully acknowledged Aldo Chircop, Erik
Franckx, Hugh Kindred, Kenneth MacInnis, Moira
McConnell, Angus McDonald, Ted McDorman, Sonja
Mills, Tony Puthucherril, Susan Rolston, Phillip
Saunders, K. Joseph Spears
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