Transcript Canada, the Northwest Passage and the Future Governance of

Canada, the Northwest Passage and
the Future Governance of
Arctic Shipping
Professor David L. VanderZwaag
Canada Research Chair in
Ocean Law and Governance
Marine & Environmental Law Institute
Dalhousie University
Shanghai Jiao Tong University
November 2011
Introduction
• The Northwest Passage (NWP),
actually consisting of seven routes
through Canada’s Arctic islands, has
long held a fabled status
+ Romanticized through the various
explorers/adventurers plying its
challenging waters, e.g.
– The Franklin expedition (184547) with the loss of two ships and
over 100 men
– The first transit of the NWP by
the Norwegian explorer, Roald
Amundsen in 1906
http://www.usatoday.com/news/world/2006-04-03-nwpassage-debate_x.htm
+ Offering a dream of shortened shipping routes, e.g.
– Saving about 5,000 nautical miles from Asia to Europe by avoiding
the Panama Canal
– Reducing the sailing distance from Seattle to Rotterdam by nearly
2,000 n.m.
• The NWP might be described as undergoing a “mythical revival”
+ Melting sea ice has opened
a renewed prospect for transit
shipping with the NWP
substantially free of sea ice
in September 2007 for the
first time in recorded history
http://beyondzeroemissions.org/file
s/1016nasa_sea_ice.jpg
+ The Arctic is expected to experience a bonanza is resource developments,
e.g.
– Projected to contain 13% of the world’s undiscovered oil and some
30% of the undiscovered natural gas
– Expected to see increased cruise ship tourism in light of melting ice
+ A steady stream of newspaper articles and academic
writings continues over the “refound excitement”
• In fact, great uncertainty exists over when the NWP
might be sufficiently ice-free to encourage transit
shipping
+ Wide range of scientific predictions as to when the Arctic
AMSA, p. 80
Ocean might be ice-free in summer (as early as 2013 to as
late as 2100)
+ Large variability in NWP ice cover, year-to-year and spatially (Western
Canadian Archipelago area is expected to be one of the last regions of the
Arctic Ocean with summer sea ice coverage)
• A host of factors, beyond sea ice cover, adds to uncertainty over future
maritime traffic, e.g.
+
+
+
+
+
+
Economics of seasonal marine operations
Insurance availability and costs
Rate of infrastructure improvement
Pace of resource discoveries
Global trade dynamics
Availability of alternative routes, namely,
– The Northern Sea Route
– The Arctic Polar Route over the central
Arctic Ocean
• Regardless of the uncertainty over increased transit passages, the
adequacies of shipping governance measures at the national, regional and
international level are clearly on the international “radar screen” with
three nautical images helping to capture the shipping governance
framework
1. Rough Waters - Rocky international
relations continue over the legal status
of the NWP and the extent of legislative
and enforcement powers granted by
Art. 234 of the 1982 Law of the Sea
Convention (LOSC) to Canada, as
the coastal state, to control shipping
in ice-covered waters
2. Cooperative Currents - Cooperative governance arrangements and
initiatives continue to flow at the bilateral, regional and global levels
3. Sea of Challenges - Major challenges are confronting Canada in the
quest for effective shipping governance in the Arctic including
• Developing and implementing mandatory vessel routeing measures for
ecologically and culturally significant Arctic waters
• Figuring out the future national regulatory seascape
• Articulating clear policy positions for future development and
management of the NWP
• Working through the IMO to further strengthen Arctic
shipping governance
1. Rough Waters
Canada’s international relations concerning control of the NWP have run
into rough political waters through three main “wave making” incidents
•
The 1969 test voyage of the ice-strengthened U.S. flagged oil tanker
Manhattan through the NWP
•
The transit of the U.S. Coast Guard icebreaker Polar Sea in 1985 and
•
The Canadian move in 2010 to make ship reporting mandatory for its
Arctic waters.
•
The Manhattan voyage and its wake
+
U.S. flagged vessel S.S. Manhattan sent through the
Northwest Passage in 1969 to test tanker transit

Were Canadian “controls”
* Canadian government representative aboard
* Canadian Coast Guard Vessel, J.A. Macdonald, accompanied
the vessel

Media portrayed voyage as
* Threatening Canadian Arctic sovereignty in light of U.S. not
consulting or seeking permission
* Opening a “dangerous door” for future tanker accidents in
vulnerable Arctic waters
http://www.sunshiporg.homestead.com/manhattan.html

Canada responded in three main ways
*
Enacting the Arctic Waters Pollution Prevention Act which
established a 100 nautical mile pollution prevention zone in
the Arctic which allowed vessel construction, navigation and
operation restrictions to be prescribed even against foreign
vessels
*
Extending the territorial sea from three to twelve nautical
miles (giving Canada “choke points” in the Northwest
Passage where it would have full sovereignty subject to the
right of innocent passage of foreign ships)
*
Withdrawing Canadian acceptance of the compulsory
jurisdiction of the International Court of Justice regarding
disputes relating to Canada’s marine environmental control
measures
> Canada knew it was pushing the outer boundaries of
international law by establishing a 100 n.m. pollution
prevention zone
> 200 n.m. exclusive economic zone, accepted today, had
yet to be negotiated
– Canada’s substantial shipping governance net cast in 1970 remains
in place today with some modifications
* Vessel-source pollution discharge prohibitions
> Essentially a “zero discharge” standard for oil or oily mixtures
(engine exhaust deposits and emergency saving of life/ships are
exceptions)
> No garbage deposits in Arctic waters
> No waste deposits of any type except if authorized by
regulations under the Arctic Waters Pollution Prevention Act
(AWPPA)
> Pollution prohibitions extended in August 2009 to cover Arctic
waters within the 200 n.m. EEZ
http://www.canada.com/business/leg
islation+strengthens+Canada+Arctic
+sovereignty+Expert/1710229/1639
836.bin?size=620x400
* Construction, design, equipment and crewing standards
> Special construction and design standards for some Arctic
shipping have been imposed
† Ships over 100 gross tonnage and carrying oil in excess
of 453m3 are not allowed to navigate in Arctic waters
unless they meet special construction standards set out
in the Arctic Shipping Pollution Prevention (ASPP)
Regulations
† Actual navigation of such ships in the Arctic is further
controlled according to their ice capabilities and a
zoning system
~ Canada has zoned its Arctic waters into 16 Shipping
Safety Control Zones
Zone 1 is considered to have the most challenging
ice conditions
Zone 16 is assumed to have the easiest
~ Canada restricts navigation in the zones based upon the
ice capability of ships
14 categories of ships set out in Regulations
Nine Arctic Class ships with Class 10 being the most
powerful/capable
Five ship types with Type E considered an open water
vessel with no ice strengthening
Entry of vessels into zones restricted under a detailed
zone/date system, e.g.
Arctic Class 10 vessels can operate year round in all the
zones
Type E ships (open water) are prohibited from
navigating in severe ice zones 1-6 and can only navigate
the other zones during the months when ice is limited
> Some flexibility in the zoning scheme is allowed through the
Arctic Ice Regime Shipping System (AIRSS)
† Introduced in 1996
† Takes into account variable ice conditions
† Uses a mathematical formula, considering
concentrations of ice and ice types, to determine whether
a ship can enter the ice regime in a particular zone
* Canada also imposes special equipment requirements for some
ships navigating in Shipping Safety Control Zones, for example,
in relation to
> Gyro-compasses
> Radar
> Echo-sounders
* Special crewing with a qualified ice navigator is also required for
some ships, e.g.
> Oil tankers
> Ships choosing to follow the flexible Arctic Ice Regime
Shipping System
http://www.tc.gc.ca/marinesafety/debs/arctic/shipping-operations/ice-navigators.htm
• The Polar Sea transit and its aftermath
+ U.S. Coast Guard Vessel Polar Sea traversed the Northwest Passage in
the summer of 1985 without seeking Canadian consent
http://www.planetwater.ca/research/climpact/impacts/shipping.html
+
Canada, among other things

Announced the establishment of straight baselines around the
Canadian Arctic Archipelago, effective January 1, 1986 (full
national sovereignty over the internal waters within the enclosed
baselines)
(Roach and Smith 1996)


Withdrew Canadian reservation to the World Court’s jurisdiction
Gave notice of its intention to talk with U.S. officials on
possibilities for cooperation in Arctic waters
+
The Polar Sea incident helped crystallize the three main legal regimes
arguably applicable to Northwest Passage waters
–
Canada’s ideal and legal stance – internal waters
*
Internal waters grants coastal states full sovereignty including
right to fully control foreign shipping, e.g.
>
>
Prohibiting selected transits (such as hazardous cargoes)
Establishing strict pollution discharge and navigational
requirements for foreign ships (such as pilotage and
routings)
AMSA, p. 137
*
*
Two main legal foundations for internal waters status
>
Historical waters (subject to Canadian exclusive control
over many years with the aquiescience of other States to
the exclusive authority)
>
Waters within straight baselines drawn around a “fringe
of islands” along the coast
Article 7 of the 1982 Law of the Sea Convention codifies
what the International Court of Justice in 1951 accepted
Norway could do in light of its special geographical
conditions
>
>
Deeply indented coastline
Multiple islands near the coastline
*
*
Two main arguments can be made against the Canadian
drawing of straight baselines around the Arctic Archipelago
>
The islands are not in the “immediate vicinity” of the
coastline as required by Art. 7(1) of the Law of the Sea
Convention
>
The drawing of straight baselines “must not depart to any
appreciable extent from the general direction of the
coast” (Art. 7(3))
Canada can counter with arguing it established its straight
baseline system based on customary international law that
does not include an “immediate vicinity” requirement
(Canada established its straight baseline system before
becoming a Party to LOSC)
+
U.S. ideal and legal stance
– Northwest Passage is an international strait subject to the right
of transit passage by foreign ships
– Transit passage substantially limits controls a coastal state like
Canada could impose on foreign ships navigating through strait
waters
> Coastal state cannot impose its own pollution control or
safety at sea standards (international standards apply) (Art.
39)
> Coastal states can designate sea lanes and prescribe traffic
separation schemes for navigation where necessary to
promote the safe passage of ships but IMO approval is
required (Art. 41)
> Coastal states cannot prohibit
foreign ship transits because of
risky cargoes, such as hazardous
or radioactive wastes
* Considerable debate exists over whether the Northwest Passage
has become a “strait used for international navigation”
> No question that Northwest Passage meets the geographic
condition set out by the law of the sea convention (Art. 37)
(Connecting one part of the high seas or an exclusive
economic zone with another part of the high seas or
an EEZ)
> Big issue is what constitutes the legal litmus for
navigational usage
† Potential vs. actual usage
† Volume of traffic required
† Number of different flagged
vessel transits
–
The Murky Middle Ground
* If Canada’s total sovereign control position over internal
waters does not hold up (2 possible reasons)
> Canada’s application of straight baselines does not meet
the legal requirements under customary international law
or set out in LOSC (e.g. fringe of islands in the immediate
vicinity of the coast) (Art. 7(1)) and the waters are not
historic
> Canada’s enclosure involved water areas not previously
considered as internal waters, and thereby a right of
innocent passage exists for foreign ships through those
waters (LOSC, Art. 8(2))
*
A legally complicated “in between” scenario arises which might
be called the “Article 234 overlay”
> Canada obviously would invoke the special legislative and
enforcement powers provided by Article 234 over icecovered waters:
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 climate 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.
>
Canada through a broad interpretation could still claim
extensive powers over foreign vessels such as
† Imposing vessel routing and traffic separation
requirements without seeking IMO approval
† Requiring special vessel construction, equipment and
crewing requirements
† Applying stricter than global
discharge standards
AMSA, p. 83
>
>
Lots of potential for differing national interpretations of
Article 234, e.g.
† What is the implication of the Article’s application only
to the EEZ?
~ Drafters implicitly intended Article 234 to also apply to
the territorial sea
~ Special measures imposed in Article EEZ waters may
not go beyond coastal state powers in the territorial sea
† What exactly does ice-covered for most of the year
mean?
† How far can a coastal state rely on Art. 234 to justify
maritime safety measures?
Canada has a strong case for arguing Art. 234 would still
apply even if the NWP were considered as a strait used for
international navigation
† Art. 233 of LOSC sets out safeguards with respect to
straits
† Art. 233 does not specifically exempt straits from the
application of Art. 234
+ Since the election of Prime Minister Stephen Harper in January 2006, the
Canadian political mood has shifted to again giving high priority to
protecting Arctic sovereignty and security primarily through various
speeches and budgetary commitments, e.g.
– Pledge to construct six to eight Arctic Offshore Patrol Vessels
* Vessels to be capable of patrolling the Northwest Passage during the
summer navigable season
* Able to patrol Passage approaches year round
– Promise to establish a Canadian Forces Arctic Training Center in
Resolute Bay, Nunavut
– Pledge to construct a docking and refueling facility in Nanisivik,
Nunavut to serve as a staging area for naval vessels and Canadian
Coast Guard vessels operating in the North
– Promise to re-equip and expand the Canadian Rangers by 900
members
– Announcement in 2008 Federal Budget of $720 Million for a new
polar class icebreaker to replace the Louis S. St. Laurent, expected to
be decommissioned in 2017
• Tussle over Mandatory Ship Reporting in Canada’s Arctic Waters
+ Effective 1 July 2010 Canada has imposed mandatory reporting
requirements for certain classes of vessels preparing to navigate within the
Northern Canada Vessel Traffic Services (NORDREG) Zone which covers
the Shipping Safety Control Zones and other northern waters such as
Hudson and James Bay
– Vessel coverages
* Vessels of 300 gross tonnage or more
* Vessels engaged in towing or pushing another vessel if the
combined gross tonnage of the vessel and the vessel being towed or
pushed is 500 gross tonnage or more
* Vessels carrying as a cargo a pollutant or dangerous goods or
engaged in towing or pushing a vessel with such a cargo
– Three main types of reports required
* Sailing plan
> When vessel is about to enter the NORDREG Zone
> Before a vessel departs from a berth within the NORDREG
Zone
* Periodic position reports
* Final reports
> On vessel arrival at a berth within the Zone
> Immediately before a vessel exits the Zone
+ A tussle, led by the United States, ensued within the IMO
– U.S. questioning whether Canada’s NORDREG system was in
compliance with SOLAS, chapter V requirements
* Canada should have worked through the IMO for formal
approval
* A vessel traffic services (VTS) zone may only be made
mandatory within the territorial sea of a coastal state
+ Canada responded in a very “diplomatic fashion”
– Submitted an explanatory document of its own
* Clarifying Canada’s reliance on Art. 234 for its unilateral
imposition of NORDREG
* Noting that foreign sovereign immune vessels would be
requested to voluntarily comply with NORDREG
* Requested IMO to bring the NORDREG system to the attention
of member Governments which in fact occurred through an IMO
information circular (SN.1/Circ. 291, 5 October 2010)
2. Cooperative Currents
To focus on the rough waters of conflict over the NWP is to miss half of
the picture as currents of cooperation exist at the bilateral, regional and
global levels
•
Bilateral
+
A bilateral context of cooperation already exists between Canada and
the U.S. in the Arctic, e.g.
– Joint Marine Contingency Plan for the Beaufort Sea
– North American Aerospace Defense
Command (NORAD) which
extended cooperative
surveillance to the maritime
domain in May 2006
+
In 1988 Canada and the United States reached a “stalemate”
Agreement on Arctic Cooperation



Parties agreed to set aside their jurisdictional dispute over the
legal status of the Passage by “agreeing to disagree”
United States agreed that its icebreakers would be subject to
Canadian consent for transits within waters claimed by Canada
to be internal
Countries agreed to share research information regarding the
marine environment gained through icebreaker navigation
– Some uncertainty over what was agreed to
* Whether U.S. just agreeing to subject government icebreakers
undertaking marine scientific research (MSR) to the Canadian
consent regime
* Whether all government icebreakers, even if not undertaking
MSR, would be subject to the consent regime
– Clear that commercial and naval vessels not included
• Regional
Four main regional currents of cooperation
+
Publication by the Arctic Council of the Arctic Marine Shipping
Assessment (AMSA) in April 2009 (Co-led by Canada, USA and
Finland)
– The AMSA Report made 17 recommendations
on possible ways forward in strengthening the
protective regime for Arctic shipping.
Examples of the recommendations organized
under three themes included:
* Enhancing Arctic Marine Safety (Theme 1)
> Making the voluntary Guidelines for Ships Operating in Arctic
Ice-covered Waters (2002) a legally-binding code
> Augmenting existing IMO conventions on ship safety and
pollution prevention with specific requirements/provisions for
ship construction, design, equipment, crewing, training and
operations
> Exploring the possible harmonization of national standards for
regulating ship-source pollution
> Developing a multi-national Arctic Search and Rescue
Instrument in light of the region’s remoteness and limited
response resources
* Protecting Arctic People and the Environment (Theme 2)
> Conducting surveys on Arctic
marine uses by indigenous
communities and potential
impacts from shipping activities
(and filling any informational
gaps)
AMSA, p. 113
> Identifying areas of heightened ecological and cultural
significance and encouraging protective measures against the
impacts of Arctic marine shipping
> Ratifying as soon as practical by all Arctic States of the IMO
Ballast Water Convention and assessing the risks of invasive
species introductions in the Arctic through ballast water
> Assessing the effects of ship noise and strikes on marine
mammals and considering work within the IMO to develop
mitigation strategies
AMSA, p. 111
> Possibly designating regions of the Arctic Ocean as
† “Special areas” where more stringent than normal
discharge standards would apply under the International
Convention for the Prevention of Pollution from Ships
(MARPOL) for oil (Annex I), noxious liquid substances
(Annex II), garbage (Annex V) and air emissions (Annex
VI)
† Particularly Sensitive Sea Areas (PSSAs) under IMO’s
Guidelines for the Identification and Designation of
PSSAs (2005) where associated protective measures can
be imposed, such as vessel routeings and areas to be
avoided
* Building Arctic Marine Infrastructure (Theme 3)
> Improving Arctic marine infrastructure in
such areas as navigational charting, communications systems,
port services, reception facilities for ship-generated waste and
ice-breaker assistance
> Developing further circumpolar environmental pollution
response capabilities
– The AMSA publication has become a “living document”, e.g.
* The PAME Working Group has developed a follow-up matrix and
continues to monitor progress in implementing the AMSA
recommendations
* A cooperative project by three of the Arctic Council’s working group
has been launched to identify areas of heightened ecological or
cultural significance
+ Negotiation of a regional Aeronautical and Maritime Search and
Rescue Agreement through an Arctic Council Task Force
– Agreed to at the May 2011 Nuuk Ministerial Meeting
– Delineates areas of national search and rescue (SAR)
responsibilities in the Arctic
– Calls for further cooperation in joint exercises and training
– Provides for expedited cooperative national responses to SAR
incidents
+ Agreement to establish a Task Force to negotiate a regional
instrument on oil spill emergency preparedness and response
– Agreed through the Nuuk Declaration of May 2011
– Mandated to report back to the 2013 Arctic Council Ministerial
Meeting with possibly a final text
+
Establishment of a new Arctic Regional Hydrographic Commission
(ARHC)
– To facilitate cooperation in undertaking surveys and enhancing
nautical charting
– Members include Canada, Denmark, Norway, Russia, USA
Arctic Regional Hydrographic Commission (ARHC)
–
–
Commission hydrographique régionale de l'Arctique
(CHRA)
First meeting held in Ottawa, 4-6 October, 2010
Second meeting held in Copenhagen, 27-30 September 2011
3. Sea of Challenges
• Developing and implementing mandatory vessel routeing measures for
particularly sensitive Arctic waters
+ Canada presently has no specific legally-binding routeing requirements for
the Arctic
– Some recommendary navigational suggestions exist such as advising
ships to stay at least 10 miles away from shore on the north and south
coasts of Lancaster Sound in order to avoid fall migration of marine
mammals
The Canadian Coast Guard
sails
Sound
icebreaker Louis S. St-Laurent
past a iceberg in Lancaster
as part of a sovereignty and
research patrol through
Canada's Arctic in July 2008.
(Jonathan Hayward/Canadian
Press)
+ Marine Protected Area (MPA) establishment in Canada’s North might be
described as “embryonic”
– While seven MPAs have been established under Canada’s Oceans Act in
Pacific and Atlantic waters, only one Oceans Act MPA has been
established in the Arctic (the Tarium Niryutait MPA (Including three
coastal areas in the Beaufort Sea)
•
•
•
•
•
•
•
•








Marine Protected Areas
Endeavour Hydrothermal Vents
Bowie Seamount
Musquash Estuary
Basin Head
The Gully
Gilbert Bay
Eastport
Tarium Niryutait
Areas of Interest
Race Rocks
St. Lawrence Estuary
Manicouagan
Hecate Strait/Queen Charlotte Sound Glass
Sponge Reefs
Laurentian Channel
St Anns Bank
Shediac Valley
American Bank
– Parks Canada is proposing establishment of a National Marine
Conservation Area in Lancaster Sound
• Figuring out the future national regulatory seascape for shipping
Canada’s law and policy voyage in controlling Arctic shipping is far
from over
+ Transport Canada has itself identified key areas for possible future
regulatory actions including:
– Designating the Arctic as an emissions control area for stack
emissions
– Requiring ice navigators on board all ships operating in Canadian
Arctic waters
– Updating the boundaries of the Shipping Safety Control Zones in
light of changing ice conditions
– Extending the Arctic Ice Regime Shipping System to year round
operations (Using the zone/date system as guidance)
– Adopting and mandating the Polar Class construction standards for
new ships developed by the International Association of Classification
Societies (IACS) and included in the IMO Guidelines for Ships
Operating in Polar Waters
– Considering forms of garbage disposal that might be allowed from
ships operating in the Arctic
AMSA, p. 22
+ Sewage discharges represent a particular regulatory gap
– ASPP Regulations allow any ship and any person on a ship to
deposit in Arctic waters such sewage as may be generated aboard
(s. 28)
– Not even the rather weak Annex IV MARPOL standards apply
which are applicable to Canada’s southern waters
+ A December 2009 report by the Standing Senate Committee on Fisheries
and Oceans, Controlling Canada’s Arctic Waters: Role of the Canadian
Coast Guard, provides further policy recommendations for Government
to ponder upon, e.g.
– Arming Coast Guard icebreakers with deck weaponry capable of
giving firm notice, if necessary, to unauthorized foreign vessels using
the Northwest Passage
– Requiring all foreign vessels, regardless of size or tonnage, to report
to NORDREG
– Expanding maritime air surveillance in Canada’s North
– Acquiring a suitable number of new multi-purpose polar icebreakers
capable of year-round operation in the Arctic Archipelago and above
the continental shelf
• Articulating a “clear policy vision” for the Northwest Passage
+ While Canada’s Northern Strategy document, released in July 2009,
professes to present a “clear vision” for the Arctic, the Strategy might be
better described as leaving a foggy policy horizon
http://oes0802.blogspot.com/2008/03/foggy-day-with-big-things-comingup.html
– Largely reiterates and catalogues previously announced
governmental budgetary and political commitments under the four
pillars of the strategy
* Exercising Arctic Sovereignty
* Promoting Social and Economic Development
* Protecting Environmental Heritage
* Improving and Devolving Northern Governance
http://www.northernstrategy.gc.ca/cns/cns.pdf
– No clear picture of whether Canada proactively supports opening the
Northwest Passage to international transits and if so, what
infrastructure support might be needed and expected
– No clear national position on the desired scale of future ship-based
tourism in the Arctic and related support priorities
http://www.arctictopcruises.c
om/pictures/fram_ship_l.jpg
– No specifics on emergency response capabilities and commitments
“Transport Canada continues to assess Canada’s capacity to respond to
marine pollution in the Arctic and ensure that the Canadian Coast
Guard and communities have the necessary equipment and response
systems in place for emergencies” (p. 28)
http://www.tbs-sct.gc.ca/dpr-rmr/2006-2007/inst/dfo/images/DFO_DPR_06-07_(E)_for_HTML-14.jpg
+ Canada’s Statement on an Arctic Foreign Policy, issued in August 2010,
continues the foggy situation
– Emphasizes exercising sovereignty over the Far North is the first and
most important policy pillar
– Establishes top two priorities of resolving in accordance with
international law
* Beaufort Sea boundary with U.S.
* Lincoln Sea boundary with
Denmark/Greenland
– Provides no clear guidance on how
the NWP dispute might be addressed
• Four main paths forward, besides resorting to third party resolution,
can be garnered from the academic literature
– Canadian continuance of unilateral actions to strengthen
environmental and safety standards along with adequate
surveillance and enforcement measures
– Canadian submission to the U.S. international strait position
followed by cooperative initiatives with other states
– U.S. recognition of Canadian sovereignty in return for expanded
transit rights, particularly for commercial vessels
– Continuing to “agree to disagree” over the legal status of the
NWP with various possible ways forward, e.g.
– Extension of 1988 Arctic Cooperation Agreement to cover
commercial vessels
– Canada-U.S. Arctic Navigation Commission
• Working through the IMO to further strengthen Arctic shipping
governance
+ Reaching agreement on mandatory Polar Shipping Code contents
– Numerous issues remain to be finally agreed to in the
negotiations within the IMO for a legally-binding Polar Shipping
Code, e.g.
* Should the geographic scope of application of the present
voluntary guidelines be broadened?
*
*
*
*
*
*
*
*
Which ships should be covered? Extension to barges, fishing vessels
and pleasure craft?
What training standards should be included, for example, for ice
navigators in terms of classroom and practical experience?
Whether and how to address ballast water and hull-fouling threats?
Should a permit to operate certificate from national administrators
serve as a key control document?
What type of phase-in requirements should be included for existing
ships?
Should differential as well as common standards be adopted for the
Arctic and Antarctic
What provisions should be mandatory versus recommendary in a
new code?
What environmental issues should be addressed, for example,
special risks of carrying liquid chemicals
in bulk and packaged dangerous goods in
the Arctic?
AMSA, p. 124
– Environmental provisions within the new Code have been especially
controversial with an IMO workshop held September 27-30 in
Cambridge, UK to discuss possible ways forward
– How to best “legalize” the Code has also been the subject of major
debate with three options open
* Incorporating the Code under the SOLAS Convention
* Linking the Code with multiple conventions relevant to Arctic
shipping including SOLAS, MARPOL, the Ballast Water
Convention and the Anti-fouling Substances Convention
* Forging a stand-alone Polar Code agreement
+ Deciding whether to ban the use and carriage of heavy fuel oil (HFO)
on ships operating in the Arctic
– In March 2010, IMO’s Marine Environment Protection Committee
adopted a ban on the use and carriage of HFO on ships operating in
the Antarctic Treaty Area (effective from 1st August 2011)
– Norway is presently leading a project under the Arctic Council’s
PAME Working Group to study the risks of HFO use in the Arctic
and to possibly suggest international regulation through IMO
http://www.tc.gc.ca/me
dia/images/marinesafet
y/fed_baffin.jpg
+ Reducing emissions of black carbon from shipping in the Arctic
– Black carbon, emitted from ships through incomplete combustion of
diesel fuel, is a growing concern because of its climate warming
potential (estimated to cause some 680 times more warming than the
same amount of CO2 over 100 years)
– Various control options exist, such as
* Reducing vessel speed
* Modifying vessel and propeller designs to reduce fuel
consumption
* Use of alternative power techniques such as wind-sails
* Improved ship routeing
* Installation of diesel particulate filters
– Initial proposals for action are still at the
“discussion stage” within the IMO with the
BLG Sub-Committee tasked with
investigating appropriate control measures
and submitting a final report to the 65th
session of Marine Environment Protection Committee
Conclusion
• One final nautical image captures the “bottom line” regarding
governance of the Northwest Passage
• An unfinished voyage!