The Polar Code Process and Sovereignty Bargains: Comparing the Approaches of Canada and Russia to POLARIS

Owing to a shift from the culture of compliance to the culture of benchmarking, the Polar Code process of ensuring safe operation and environmental protection in Polar waters is still ongoing. The risk and goal-based approaches embedded in significant parts of the Polar Code invite different stakeholders to participate in the development of Arctic shipping governance. The methodology used in the process, such as POLARIS, may serve as a common baseline, but its utility relies on further updates and validation. The reliability of decision-support systems depends largely on whether different stakeholders embrace the system and share their experiences to facilitate systematic updates. This article compares the approaches of the two major coastal states, Canada and Russia, to POLARIS as reflected in their coastal state systems of shipping control in the Canadian Arctic Waters and the Russian Northern Sea Route (NSR). Considering that much Arctic shipping occurs within the Canadian Arctic and the NSR, their regulatory approaches may affect POLARIS’s popularity, acceptance, and, eventually, success in providing a common regulatory baseline

The ‘Due Regard’ of Article 234 of UNCLOS: Lessons From Regulating Innocent Passage in the Territorial Sea

Article 234 of UNCLOS is in many ways exceptional, but it is not unique in the sense that it grants to the coastal state “complete” legislative power. Arguably, “complete” coastal state jurisdiction exists in the territorial sea for the purposes enumerated in Article 21(1), allowing coastal states to adopt ship reporting systems, pilotage, and other routing measures unilaterally. The analysis of state practice reveals that states often decide to engage the International Maritime Organization (IMO) in different ways, even when such a course of action is not mandatory. This article advocates for meaningful deliberation as both a suitable method of meeting Article 234’s due regard standard, and a practice that can be expected from a steward

The Genesis of Article 234 of the UNCLOS

Article 234 is exceptional regarding its wording and placement in the United Nations Convention on the Law of the Sea (UNCLOS), as well as in its historical background. The Arctic provision has given rise to divergent interpretations regarding the conditions for invoking it, the limitations on the authority under Article 234, and its spatial scope of application. It has served as a justification for specific legislation adopted by Canada and Russia that has been opposed by the United States. The article, describes as a “textbook example of finding a compromise in international treaty negotiations,” was negotiated directly and privately, among these three states during the Third United Nations Conference on the Law of the Sea (UNCLOS III). This article describes the historical background to Article 234 and sheds new light on the negotiating process that led to the adoption of the provision

The Polar Silk Road and the future governance of the Northern Sea Route

This article examines China’s Polar Silk Road (PSR) and its legal implications for the future governance of the Northern Sea Route (NSR). It first discusses China’s economic and geopolitical interests in the so-called Polar Silk Road. The article then focuses on comparing Russian regulation of the NSR and Chinese regulation of foreign vessels as a coastal state. Both China and Russia are contracting parties to the United Nations Convention on the Law of the Sea (UNCLOS). The comparison of domestic legislations aims to provide a detailed analysis on convergence and divergence of their implementation and enforcement of the UNCLOS on issues related to freedom of navigation, especially when it comes to foreign vessels, including military vessels, within national jurisdiction. The comparative study, therefore, helps determine to what extent China could vocally shape the development the NSR regulations in an era of climate change

‘One Map to Rule Them All’? Revisiting Legalities Through Cartographic Representations of the Northwest Passage

In the legal conceptualization of space, cartography has always been a fundamental tool narrating, representing, generating, or even (re)claiming territory. In this article, we examine the relationship between cartography and international law by looking at different cartographic representations of the area covering the disputed “Northwest Passage” (NWP). In an attempt to discuss how mapping may spring from different ontological assumptions of space among sovereign states and Indigenous communities, this article is devoted to investigations concerning different forms of law–space entanglements drawn from 12 different maps pertinent to the NWP, aiming to critically reconsider the very essence of law applicable to the region. The article supports the argument that approaching the juridical architecture of the Arctic from a pluralistic perspective that also accounts for non-Western visions of space may help as a valuable conceptual lens to rethink “territory” and revisit existing legal realities

Anthropocentric Ocean Connectivity: A Pluralistic Legal-Regulatory Model

This article proposes a model of anthropocentric ocean connectivity based on the concept of human perspective as location. Within this location, anthropocentrism can be, but is not necessarily, an exclusive or dominant valuation of the human. In fact, conceptions of both anthropocentrism and of ocean connectivity are pluralistic. These and other pluralisms are borne out in this article’s content and structure, which takes the form of explorations of anthropocentric connectivity in relation to four specific ocean-related human activities. First, Jan Solski applies understandings of connectivity as “flow” in the context of strategic ocean geopolitics. Second, Iva Parlov analyzes current doctrinal issues and interactions at the international level with respect to the legal regime for places of refuge for ships in need of assistance. Third, Maria Madalena das Neves examines ocean connectivity in the context of transboundary energy trade and market integration, with particular attention to geopolitical and ecological connectivity. Finally, Julia Gaunce proposes that the making and application of transnational rules and standards for ships in polar waters enhances certain connections and disrupts others, to the detriment of oceans and people, and that broadening connectivity especially in respect of Arctic Indigenous people(s) could help address challenges faced by oceans and ocean governance

Waste Management on Fishing Vessels and in Fishing Harbors in the Barents Sea: Gaps in Law, Implementation and Practice

This article aims to map and provide an overview of international, regional, and national law applicable to marine waste in the Barents Sea, and to analyze fishing industry actors’ practices and perceptions of marine waste. We identify gaps between the law and its implementation, enforcement, and practice. The legal framework for marine plastic pollution in the Barents Sea and the Arctic is fragmented and not harmonized. Insufficient waste management facilities and regulations are likely to hinder compliance with existing regulations. There is an urgent need to upgrade the waste management infrastructure for the fishing industry in Norway and in northwest Russia

Commercial Arctic shipping through the Northeast Passage:routes, resources, governance, technology, and infrastructure

The Russian and Norwegian Arctic are gaining notoriety as an alternative maritime route connecting the Atlantic and Pacific Oceans and as sources of natural resources. The renewed interest in the Northeast Passage or the Northern Sea Route is fueled by a recession of Arctic sea ice coupled with the discovery of new natural resources at a time when emerging and global markets are in growing demand for them. Driven by the expectation of potential future economic importance of the region, political interest and governance has been rapidly developing, mostly within the Arctic Council. However, this paper argues that optimism regarding the potential of Arctic routes as an alternative to the Suez Canal is overstated. The route involves many challenges: jurisdictional disputes create political uncertainties; shallow waters limit ship size; lack of modern deepwater ports and search and rescue (SAR) capabilities requires ships to have higher standards of autonomy and safety; harsh weather conditions and free-floating ice make navigation more difficult and schedules more variable; and more expensive ship construction and operation costs lessen the economic viability of the route. Technological advances and infrastructure investments may ameliorate navigational challenges, enabling increased shipping of natural resources from the Arctic to global markets.Albert Buixadé Farré, Scott R. Stephenson, Linling Chen, Michael Czub, Ying Dai, Denis Demchev, Yaroslav Efimov, Piotr Graczyk, Henrik Grythe, Kathrin Keil, Niku Kivekäs, Naresh Kumar, Nengye Liu, Igor Matelenok, Mari Myksvoll, Derek O'Leary, Julia Olsen, Sachin Pavithran.A.P., Edward Petersen, Andreas Raspotnik, Ivan Ryzhov, Jan Solski, Lingling Suo, Caroline Troein, Vilena Valeeva, Jaap van Rijckevorsel and Jonathan Wightin

The Northern Sea Route in the 2010s: Development and Implementation of Relevant Law

The 2010s was a busy decade for the Northern Sea Route (NSR). It started with the first shipping season to feature the international use of the NSR for commercial purposes, followed by a significant reform of the domestic legal regime, as well as the adoption of the Polar Code. The traffic has gradually picked up, and although the expectations of a significant surge in trans-Arctic navigation have not materialized, the NSR’s annual turnover has grown beyond the old records set by the USSR. While the Russian authorities have struggled to find the most optimal means of development of the NSR, the latter has recently been re-marketed as a Polar Silk Road, part of the grand Chinese One Belt One Road initiative. While Russia has been rebuilding its military presence in the Arctic, the French Navy vessel BSAH Rhone unexpectedly navigated through the NSR, inciting strong political, but yet not legal, response. The present article aims to take stock of the last decade, paying primary attention to the Russian State practice in developing, adopting, and enforcing legislation in the NSR. By describing the current status and identifying some of the regulatory trends, the article will draw cautious predictions on the role of the law of the sea in the management of the NSR in the near future

New Russian Legislative Approaches and Navigational Rights within the Northern Sea Route

The regulation of foreign navigation in the Northern Sea Route (NSR) has been dominated by the rules of international law applicable to merchant ships only. Neither the domestic set of rules of navigation on the NSR, based on Article 234 of UNCLOS nor the Polar Code applies to State-owned vessels. While the application of Article 234 has so far let Russia evade discussion on the navigational rights, one can expect an increasing spotlight on this issue. In response to the recent crossing of the NSR by a French warship, as well as the voices from the United States indicating similar plans, Russia has signalled the intention to adopt more stringent rules for passage of warships, potentially including the requirement of prior notification and pilotage. The aim of the paper is twofold. First, examine the navigational rights as applicable in the NSR. As such, the paper will discuss historical State practice and relevant international law to demonstrate, among other things, that the enclosure with straight baselines preserved innocent passage in all Russian Arctic straits. Second, examine the international legality of prior notification and pilotage in the context of the applicable navigational rights on the NSR