Transcript Erik Franckx - Arctic Centre

How Can the Law Governing Maritime Areas in the
Arctic Adapt to the Changing Climatic Circumstances?
Prof. Dr. Erik Franckx
Department of International and European Law
First CIGSAC Seminar
Pyhätunturi
31 August – 3 September 2006
Outline
•
•
•
•
•
•
1) Explanation of title
2) Changing circumstances
3) Arctic in the past
4) Arctic today and tomorrow
5) Creeping jurisdiction
6) Conclusions
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 2
Law & Climate Change in the Arctic
1) Explanation of title
• Division of work
• The United Nations Convention on the Law
of the Sea (1982 Convention) and shipping
– signed
10 December 1982
– entered into force
16 November 1994
– Parties
148 & EC
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 3
Law & Climate Change in the Arctic
1) 1982 Convention
• Constitution for the Oceans
– But what kind of constitution
» rigid or flexible?
– New developments
» Agreement relating to the Implementation of Part XI of the
United Nations Convention on the Law of the Sea of 10
December 1982
[signed on 17 August 1994; in force as of 28 July 1996; 122
parties & EC].
» Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea of 10
December 1982 relating to the Conservation and
Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks
[signed on 8 September 1995; in force as of 11 December
2001; 59 parties & EC]
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 4
Law & Climate Change in the Arctic
1) 1982 Convention
– Title seems to suggest.
» New Agreement on the Implementation of Section 8 of Part
XII on the Protection and Preservation of the Marine
Environment
Difficult for me to sustain
» Amendment of Art. 234?
Highly unlikely
– Better question may be
» How can the law … adapt …
» How can States … adapt …
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 5
Law & Climate Change in the Arctic
2) Changing circumstance
• Basis is Arctic Climate Impact
Assessment
– ° October 2000 (Barrow Ministerial
Conference of Arctic Council)
– Written by more than 300 Arctic
researchers
– Reviewed by 160 independent
scientists + national reviews
– End result ready in 2004
– “Welcomed with appreciation” by 2004
Reykjavik Ministerial conference of AC
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 6
Law & Climate Change in the Arctic
2) Changing circumstances
• Of particular importance: Key Finding # 6
– Reduced sea is very likely to increase marine
transport and access to resources
• 50 years of observation indicate
– Decline in ice extent (5-10 % on yearly basis; more
outspoken in summer)
– Decline in ice thickness (10-15 % over a couple of decades;
up to 40 % in Central Arctic)
– Navigable season (less than 50 % sea ice concentration) will
extend from 20-30 days now to 90-180 days in 2080
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 7
Law & Climate Change in the Arctic
2) Changing circumstances
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 8
Law & Climate Change in the Arctic
2) Changing circumstances
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 9
Law & Climate Change in the Arctic
2) Changing circumstances
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 10
Law & Climate Change in the Arctic
2) Changing circumstances
• But not everybody is
that optimistic
– Maybe this is only
precursor of new ice age
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 11
Law & Climate Change in the Arctic
2) Changing circumstances
• Conclusion: Circumstances
– Are changing alright
– But in what direction?
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 12
Law & Climate Change in the Arctic
3) Arctic in the past
– Northwest Passage
•
Land
– A few problems
– All seem to be settled (- one: Hans Island)
– Sector theory (Poirier)
•
Water
– 1969 US action (Manhattan)
Canadian reaction
1. Act to amend the TS and Fishing Zone Act (1970)
2. AWPPA (1970) [+ later inclusion in 1982 Convention]
3. Reservation to acceptance of compulsory jurisdiction of ICJ
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 13
Law & Climate Change in the Arctic
3) Arctic in the past
– 1985 US action (Polar Sea)
Canadian reaction
1. Straight baseline system of 1985
2. Withdrawal of reservation to facultative clause (1970)
3. Agreement on Arctic Cooperation of 1988
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 14
Law & Climate Change in the Arctic
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 15
Law & Climate Change in the Arctic
3) Arctic in the past
– Northeast Passage
•
Land
– A few problems
– Sector decree 1926
– Most seem settled (one question mark remains; Wrangell I.)
•
Water
– 1965-67 US action
Soviet reaction
1. Falls back on 1960 legislation of 12 nm TZ
2. 1984 Edict on the Economic Zone (with Art. 14)
3. 1985 Decree on Arctic Straight Baselines
– 1986-88 US action
Soviet reaction
1. 1989 Jackson Hole “Uniform interpretation”
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 16
Law & Climate Change in the Arctic
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 17
Law & Climate Change in the Arctic
4) Arctic today and tomorrow
– Tendency of warming up prevails
•
Prediction is that maritime tensions will warm up as well
– Submission 1: As navigation becomes more intensive, maritime
boundaries will become essential
» Up till now: much (if not all) remains to be done
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 18
Law & Climate Change in the Arctic
4) Arctic today and tomorrow
– Submission 2: The present-day solutions to settle navigation
questions will soon become totally insufficient
» Canadian-US 1988 agreement only speaks about coastguard icebreakers/Russia relied on its powerful icebreakers
to be relied upon for safe passage to imply consent
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 19
Law & Climate Change in the Arctic
4) Arctic today and tomorrow
– Submission 3: The validity of the straight baselines, and
especially the internal water status of the waters located inside,
will become topical once again
» Canada and Russia are both bound now by 1982
Convention, and more especially by Art. 8 (2)
right of innocent passage seems to be applicable
-Canada: 1970 legislation
-Russia: argumentation relied upon with
respect to incidents in the 1960s
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 20
Law & Climate Change in the Arctic
4) Arctic today and tomorrow
– Submission 4: The tricky question of the Northeast and
Northwest Passages as straits used for international navigation
will for sure become a difficult issue to solve
– Submission 5: The reliance on Art. 234 to restrict foreign
presence in the area will become less and less effective over
time
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 21
Law & Climate Change in the Arctic
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 22
Law & Climate Change in the Arctic
4) Arctic today and tomorrow
– Some recent figures
» Northeast passage
-1977-2004: 52 Icebreakers reached the North Pole
-between 16.000-20.000 USD for 2 week cruise
-in good years 4 times per summer season
-between 1985-2003: amount of cargo dropped by 3 x
number of vessels dropped by 6 x
» Northwest passage
-1903-2004: 99 complete transits by 17 different flags
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 23
Law & Climate Change in the Arctic
4) Arctic today and tomorrow
Outcome of the ILA Committee on Coastal State Jurisdiction Relating to Marine Pollution
• The precise field of application of Art. 234, isolated as it is from the other articles of
Part XII, remains fraught with difficulty. It is certain that it cannot operate beyond the EEZ
and that at present its field of application is confined to the Arctic.
• It is the only exception to the requirement of the conformity of national law and regulations
relating to vessel-source pollution to GAIRS. Even the procedure provided in Art. 211 (6)
does not apply.
• Nevertheless, the “due regard” notion, combined with the particular history of this article
and the fact that Art. 234 remains subject to the system of compulsory dispute settlement,
result in the fact that navigational considerations remain a non-negligible factor in the
equation. The guidelines for ships operating in ice-covered waters, as presently
developed by IMO, might well prove an important element in the future application of this
article. These guidelines, moreover, have been recently focussed exclusively on the
Arctic.
• In broad terms, navigational rights and freedoms are not totally excluded from ice-covered
areas but may be effectively restricted by coastal state measures taken under Art. 234.
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 24
Law & Climate Change in the Arctic
4) Arctic today and tomorrow
– Tendency of a new ice age prevails
•
Prediction is that maritime tensions will remain frozen
as well
– Submission 1: Maritime boundaries will be a luxury to have
– Submission 2: The present-day solutions to settle navigation
questions will prove more than adequate
– Submission 3: The validity of the straight baselines will remain
an academic exercise
– Submission 4: Same applies to strait issue
– Submission 5: Mere reliance on Art. 234 will do the job
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 25
Law & Climate Change in the Arctic
5) Creeping jurisdiction
– Origin of term
– Two possible applications
•
•
Qualitatively inside the 200-mile limit
Spatially beyond it
– In general (focusing on living resources)
•
Unilateral claims
– Chile (1990): Mar presencial
– Canada (1994-1995): Estai saga
•
Multilateral claims
– Peanut, Donut & Loopholes
– Galapagos Agreement (2000)
– UN Fish Stocks Agreement (1995)
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 26
Law & Climate Change in the Arctic
5) Creeping jurisdiction
– Evaluation (recent study in latest issue of German Yearbook of International Law)
•
•
Definitional clarification
Analysis
– Unilateral claims
» Chile (1990): Mar presencial
» Canada (1994-1995): Estai saga
– Multilateral claims
» Peanut, Donut & Loopholes
» Galapagos Agreement (2000)
» UN Fish Stocks Agreement (1995)
– Applied to Arctic
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 27
Law & Climate Change in the Arctic
6) Conclusions
– The future of Art. 234, which had once been
been described as
“a witch’s brew, a caldron of legal uncertainty
which could be stirred in favour of either the
coastal or shipping state”
might be an ideal instrument to face the
vagaries of a destiny as uncertain as the
Arctic one
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 28
Law & Climate Change in the Arctic
Prof. Dr. Erik Franckx
September 1, 2006 | pag. 29
Law & Climate Change in the Arctic