New Canadian Arctic shipping rules may contravene international law

While few countries support Canada’s claim that the Northwest Passage constitutes internal waters, many do support its attempt to promote national sovereignty over its seas. On July 1, Canada made formerly voluntary registration with NORDREG mandatory for all ships 300 tonnes or more passing through its Arctic waters. If a ship is found in the enforced area without having registered, the ship will be detained at the next port of call. Those responsible are liable to pay up to CAN$100,000 or face one year in jail. Canadian officials believe that the new regulations will boost safety in the dangerous, icy waters of the Arctic, since search and rescue might be made easier with better tracking of vessels.

However, many of the world’s major shipping companies disagree with this move. The Baltic and International Maritime Council (BIMCO), an independent international shipping organization representing two-thirds of the world’s shippers, has sent a letter to Canada objecting to the new shipping rules. In the letter, BIMCO states, “This could be seen as effectively interfering with the right to innocent passage.” The NGO worries that if a ship were denied registration, it would not be allowed to pass. Furthermore, BIMCO disagrees with Canada’s extension of environmental protections through its Exclusive Economic Zone, extending 200 nautical miles from the coast, and calls the measure “drastic.”

The group wants Canada to obtain approval from the International Maritime Organization before enforcing the new rules. Mélanie Quesnel, media relations advisor to Transport Canada, was quoted by maritime newspaper Lloyd’s List as claiming, “These regulations do not require approval by the International Maritime Organization and are consistent with international law. The waters in question are within the exclusive jurisdiction of Canada and there is no legal obligation to seek approval from the IMO.”

Indeed, there might not be any real legal pressure from BIMCO, as it is a non-governmental organization. However, University of British Columbia professor Michael Byers was quoted in the Vancouver Sun as saying,

“In international law, it doesn’t matter what BIMCO thinks, since only nation-states — acting collectively — can make or change the rules. But industry pressure can influence the positions taken by the major shipping states, including the U.S., Panama, Germany, South Korea, China and Japan.”

So if shipping companies decide to reroute their vessels to avoid Canada’s tracking system, and thus Canadian ports of call, then Ottawa might respond. Of course, the Northwest Passage is still quite difficult to navigate, and most ships going from the Far East to Europe go north of Siberia along Russia’s Northern Sea Route rather than plying through Canada’s largely frozen waters.

News links

“New Northwest Passage rules violate international law, shippers say,” Globe & Mail

“Marine shippers pan tough new Arctic vessel regulations,” Vancouver Sun

“New Northwest Passage rules may violate international law,” CTV.ca

“Canada to get tough with Arctic rules offenders,” Lloyd’s List

0 thoughts on “New Canadian Arctic shipping rules may contravene international law

  1. Caitlyn Antrim says:

    The Vancouver Sun makes a serious error in claiming that nation-states must act collectively to make or change rules governing marine navigation in the Arctic. The LOS Convention makes specific exception for rules to protect the marine environment in the EEZ in ice-covered areas. In these areas the coastal state is recognized to have unilateral rights to regulate marine navigation subject to a few specific limitations.

    Article 234 of the Law of the Sea Convention addresses matters of marine environmental pollution in ice-covered area. This article was written to address the Canadian belief that ice-covered areas in its EEZ required greater coastal state authority to regulate shipping in their northern waters. The first sentence of the article has most of the content: “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 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 to the ecological balance.” While such laws and regulations must have regard for the right of navigation and the protection of the environment, and must be based on the best available scientific evidence, such laws and regulations are the responsibility of the coastal state, not the IMO or other international body. Another state could challenge the rules internationally, but only within the context of article 234, and that provides pretty broad authority for regulation.

    The importance of Article 234 goes beyond Canada. it is a basis for Russia’s regulation of the Northern Sea Route in areas beyond its territorial sea. As long as the EEZ in the Arctic is ice-covered most of the year, Canada and Russia will have the right to regulate navigation in the EEZ, a right no allowed in non-ice covered areas. The main constraints on such regulations are that they be non-discriminatory and that they be based on the best available scientific evidence. Determination of the need for such regulations is primarily the responsibility of the coastal state, not flag states, not the shipping industry, not environmental NGOs and not intergovernmental organizations such as the IMO. While consultation may be undertaken by the coastal state, it is not required. Objections to the regulations, on the basis of covering non-ice covered areas, being non-discriminatory or not based on the best scientific evidence, may be challenged in the Convention’s dispute settlement provisions.

    Over time, I expect the Arctic states to refine regulations so they are more consistent among them. For example, negotiation of a binding code for polar class shipping, regulations governing waste holding, treatment and disposal, and emergency response procedures. These might be negotiated through the IMO or under the authority of the Arctic Council. But for now, the coastal state authority under article 234 is the principal guide to governance of shipping in the arctic ice.

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