Canada is planning to apply mandatory new rules to certain vessels passing through arctic waters to the north of the country. According to the press release issued by the Canadian government:
The proposed regulations would require vessels to report information such as identity and intended route before entering, while operating within and when leaving Canada’s northern waters. By identifying and monitoring vessels, the Canadian Coast Guard would be able to provide vessel traffic services to help prevent pollution and better coordinate both pollution response and search and rescue.
The regulations will replace the voluntary system of ship reporting that is currently in operation in the region. It would seem that the proposed Canadian regulations would prohibit ships from sailing through the arctic waters without first reporting to the Canadian authorities. The regulatory impact analysis statement on the proposed regulations explain:
Once a VTS zone is established under the [Canada Shipping Act 2001], vessels of a prescribed class must obtain clearance from an MCTS officer before entering that VTS zone.
As always when it comes to maritime claims over coastal waters, one of the most controversial aspects of the regulations concerns their enforcement. On this issue, the regulatory impact analysis statement says:
In a case of non-compliance, the vessel would be contacted to require that it comply with the Regulations. Where necessary, enforcement action may include follow-up communications with the flag state of a foreign vessel, notification through Port State Control procedures, and possible prosecution in accordance with the CSA 2001 and consistent with international law.
This would seem to suggest that ships will not necessarily be stopped whilst navigating through the area if they fail to comply with the regulations. It is more likely that enforcement action will only be taken if a ship voluntarily enters a Canadian port (see Article 220(1) of the Law of the Sea Convention) or by requesting enforcement action to be taken by the flag state (Article 217(6) and (7) of the Law of the Sea Convention).
Nevertheless, the proposed regulations remain controversial because of the contested status of the waters.
The area is particularly sensitive because of the existence of the Northwest passage, which, due to declines in sea ice, has opened up to international shipping. Some countries, such as the United States, argue that the Northwest Passage is an international strait and as such it is subject to the regime of transit passage in Part III of the Law of the Sea Convention which strictly limits the legislative and enforcement jurisdiction of coastal states. Canada, on the other hand, claims that the waters are either internal waters or territorial waters. For a summary of the relevant arguments, see J. Kraska, “The Law of the Sea Convention and the Northwest Passage’ (2007) 22 International Journal of Marine and Coastal Law 257.
Another complicating factor is the existence of Article 234 of the Law of the Sea Convention which provides:
Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.
Article 234 confers a broad power on coastal states to unilaterally impose pollution standards on shipping in ice-covered areas. However, the language of this provision is ambiguous as to whether it only applies to the exclusive economic zone of coastal states or whether it also applies to all other maritime zones “within the limits of the exclusive economic zone.” In their commentary to the Convention, Nordquist and his co-authors argued that it can be taken to refer to “that part of the sea extending from the outer limits of the coastal state’s exclusive economic zone to that state’s coastline.” (See Commentary to the 1982 United Nations Convention on the Law of the Sea: Volume IV (Martinus Nijhoff Publishers, 1991) at 397) If this is the correct interpretation, it can be asked what are the implications are for the rights of ships to transit passage in international straits which pass through ice-covered areas. It could be argued that Article 234 is lex specialis and therefore coastal states are not subject to the limitations on their legislative jurisdiction that would normally apply to the regulation of shipping in international straits and they can unilaterally set standards for the prevention of pollution from ships provided they are non-discriminatory and they have “due regard” to navigation.
The dispute over the status of the Northwest passage is long-running and the positions of the states concerned are to some extent polarised. The promulgation of the proposed regulations, however, raises questions about how the dispute may be settled.
Judicial settlement is one option. As is well-known, the Law of the Sea Convention creates a system of compulsory dispute settlement so the issue could be submitted to one of the courts or tribunals which may have jurisdiction under the Convention. Of course, this option is only available to parties to the Law of the Sea Convention. The strength of feeling amongst the international shipping industry about the proposed regulations may dictate whether any state has the political will to initiate litigation. On the other hand, the disadvantage of litigation is that it tends to limit who is involved in the process and it does not facilitate a solution that would necessarily take into account the views of all interested states. For example, the United States is not a party to the Convention so it would have little opportunity to formally influence any litigation which took place under the Convention dispute settlement procedures.
An alternative option would be to raise the issue in an international organization such as the International Maritime Organization (IMO). The legal committee of the IMO is used to debating and discussing controversial shipping measures proposed by states, e.g the compulsory pilotage scheme applied by Australia to the Torres Strait (see e.g. Roberts, ‘Compulsory Pilotage in International Straits: The Torres Strait PSSA Proposal’ (2006) 37 Oceans and Coastal Management 93). Whilst the IMO has no powers to impose a definitive solution on the protagonists, it would provide an opportunity for all interested states to participate in a debate over the status of the waters and it may ultimately facilitate some sort of political settlement about how to treat navigation through the waters. On the other hand, it may also simply risk showing that there is a strong and irreconcilable division of opinion on the issue!