By K. Joseph Spears
Canada’s Arctic embraces both land and oceanspace, which taken together, makes up 40 per cent of Canada landmass of 9,900,000 square kilometres. In addition, the region represents 75 per cent of Canada’s 244,000 kilometres of coastline, and contains 36,000 islands. The Arctic Ocean Basin is a unique international zone involving a semi-enclosed sea with five coastal nations, a portion of the high seas not controlled by any coastal arctic nation, waters poised to become international shipping routes (either the Northern sea route, Northwest Passage or a transpolar open water route across the top ). In addition, it is a region rich in natural resources, both living and non-living. All activities in the Arctic require international cooperation between governments, the Inuit and industry to develop a practical results-driven regime, to serve as a cornerstone of economic development by Arctic and near-Arctic nations. China considers itself a near-Arctic state because of its national interests and future potential in the region.
Overarching Framework: the Arctic Council.
While there are many competing interests in the region and potential disputes between Arctic states, the Arctic has proved to be a reasonably stable place to conduct diplomacy and cooperation between states. Earlier this year, this prompted a council of polar academics to nominate the Arctic Council for a Nobel Peace Prize. The nomination papers summed this up well: “The Arctic region has always been a place where co-operation between and amongst groups was not only desirable, but in many cases necessary for survival. This philosophy has continued into the 21st century.”
The Arctic Council is a unique international organization made up of all the Arctic nations, six international organizations representing Arctic Indigenous Peoples with permanent participant status, and includes a number of nations including China, India, Japan, Singapore, South Korea and Italy as permanent observers. The desire of these nations to seek observer status shows the global importance of the Arctic Council and its ongoing activities.
The Arctic Council serves as a high-level forum to deal with a broad range of Arctic issues and has a variety of working groups that deal with various broad issues including shipping and the Arctic environment. The Arctic Council has six main areas of interest, namely:
• Arctic Contaminants Action Program (ACAP)
• Arctic Monitoring and Assessment Programme (AMAP)
• Conservation of Arctic Flora and Fauna (CAFF)
• Emergency Prevention, Preparedness and Response (EPPR)
• Protection of the Arctic Marine Environment (PAME)
• Sustainable Development Working Group (SDWG)
Increased commercial shipping in the Arctic is a concern for the Arctic Council, but the Council does not have any formal international legal status over the governance of Arctic shipping which is within the purview of the International Maritime Organization (IMO), a United Nations mandated agency. There is overlap with respect to shipping governance and operation which is within the ambit of the IMO as shipping potentially has a major impact on the Arctic. Ultimately, it is the Arctic coastal states that govern shipping activity in the Arctic under article 234 of the Law of the Sea Convention – the ice-covered water provision. The goal internationally has been to create one uniform standard for ships operating in the Arctic.
The Polar Code
The IMO has adopted the International Code for Ships Operating in Polar Waters (Polar Code), and related amendments to the International Convention for the Safety of Life at Sea (SOLAS) to make it mandatory and has now come into force. Canada, a leader in this area, recently adopted the Polar Code into Canadian law. The Polar Code covers the full range of design, construction, equipment, operational, training, search and rescue and environmental protection matters relevant to ships operating in waters surrounding the Arctic and Antarctic. It is at best a minimum risk management standard for vessel operations and construction. With any international agreement, consensus needs to be reached, and shipping is no different. In many respects, the Polar Code arguably contains less stringent standards than the standards comprising Canada’s previous Arctic shipping regulatory regime. The overall goal has been to create uniformity so there is one regulatory regime for vessels engaged in Arctic operations. It remains to be seen how this will work in practice in the coming years as Arctic commercial marine activity increases.
International Arctic Search and Rescue Agreement
In May 2011, Canada and the other seven members of the Arctic Council nations signed an international Arctic Search and Rescue (SAR) agreement. This arose because of earlier work by the Arctic Council in the Arctic Shipping Assessment that noted a gap with Arctic SAR in view of increased shipping activities.
The Agreement calls on the signatory nations to solidify cooperation, collaboration and research on Arctic SAR. The Agreement specifically holds that it is made in accordance with the 1979 International Convention on Maritime Search and Rescue and the 1944 Convention on Civil Aviation, which are well established and widely recognized sources of international law on search and rescue. It creates an additional regime for the Arctic based upon existing norms. The Agreement sets out that each member state is given a particular search and rescue area for which it is responsible, and safe and effective measures must be taken. The overall goal is to coordinate international SAR coverage and response in the Arctic and make use of limited SAR resources.
It is beyond the scope of this article to undertake a detailed analysis of the Agreement but the relevant section to this discussion states:
Article 9(3). The party shall promote mutual search and rescue cooperation by giving due consideration for collaborative efforts including, but not limited to:
…(i). supporting and implementing joint research and development initiatives aimed, inter alia, at reducing search times, improving rescue effectiveness and minimum minimizing risk to the search and rescue personnel.
Article 10. the party shall meet on a regular basis in order to consider and resolve issues regarding practical cooperation
As part of implementing the international agreement, Canada hosted an initial Arctic Council Search and Rescue Table Top Exercise in Whitehorse on 5 and 6 October 2011. This was the first of a series of international exercises that have evolved and which spawned the Arctic Coast Guard Forum. Since then, Arctic nations have continued to work together on marine response and search and rescue. A recent exercise in real time was held off Iceland and brought together various coast guards in a real time exercise involving vessels with a variety of scenarios. On September 4-8, 2017, the Canadian Coast Guard attended the Arctic Coast Guard Forum’s first search and rescue exercise, ArcticGuardian 2017. This exercise, hosted aboard Canada’s CCGS Pierre Radisson, tested cooperation between member states of the Arctic Council during an emergency response in Reykjavik, Iceland. Underpinning the success of this exercise was the working together of various SAR professionals, which allowed gaps in capabilities to be identified. Often coast guards from different countries have different training and protocols. It is useful to exercise before a real time incident. The Arctic Guardian exercise served to buttress the underlying philosophy of cooperation in the Arctic.
Arctic Coast Guard Forum
The Arctic Coast Guard Forum is an annual meeting and working arrangement established in 2015 by the five Arctic littoral nation states (Canada, Denmark, Norway, the Russian Federation, and the United States) and three nation states with Arctic territorial claims (Finland, Iceland, and Sweden), which together comprise the eight member states of the Arctic Council. The objective of this forum is to strengthen multilateral cooperation and coordination of Coast Guard activities between the eight member states within the Arctic maritime domain. The member states meet to leverage collective resources to help support and develop safe, secure and environmentally responsible maritime activities in the Arctic. The key ingredient is marine professionals cooperating on Arctic issues.
The Way Forward
The Arctic is on the cusp of tremendous economic development. The Centre for International Governance Innovation calls for the development of smart and strategic transportation infrastructure in the Arctic – in other words, shipping infrastructure that includes a SAR response. The Polar Code was silent on the requirements of Arctic coastal states to provide shipping infrastructure. This underlying infrastructure is key to economic development. While Arctic infrastructure is expensive, equally important is cooperation. In the Arctic, cooperation, be it domestically, internationally, commercially, involving nongovernmental agencies, the Inuit, and academic institutions, is the foundation of a stable Arctic future and sustainable future economic development. Canada as an Arctic Nation needs to sustain these activities and engagement for the long term.
Joe Spears of Horseshoe Bay Marine Group has worked with governments, the Inuit on arctic issues and contributed to the Arctic Council’s Arctic Shipping Assessment. He has seen firsthand cooperation in the region. He can be reached at joe.hbmg2@gmail.com