By K. Joseph Spears

Canada is the world’s largest coastal nation with 244,000 km of coastline and 7.2 million km² of ocean space. Most of the year these waters are ice covered, with multiyear ice, sometimes extending to a depth of 20 to 30 feet in pressure ridges, which prevent all but the largest icebreakers from navigating in these waters. So far, there has not been a lot of marine traffic in the region, other than specialized vessels engaged in community supply, support of resource developments in the region, adventure expedition, or scientific oceanographic work.

Global warming has enabled greater interest in the use of the Arctic Ocean basin as a new global shipping route promising fuel savings and associated lower carbon emissions. Compared to a voyage from North America to the Far East through either the Panama or Suez canals, an Arctic route may save up to 4,000 km. There are three Arctic routes: the Northern Sea Route across the top of Russia, the Northwest Passage through Canadian waters, and a transpolar route through the high seas across the North Pole. In addition to saving fuel and time, Arctic routes are also seen as routes that are not subject to piracy.

It has been predicted that these waters will be ice free for at least four months of the year by 2030. These changing conditions in the Arctic call into question the nature of governance with respect to both domestic and international vessels. Under international law, Canada, as a coastal state, can enact laws to protect its waters so long as those laws do not interfere with internationally accepted right of navigation through the territorial seas and exclusive economic zones of twelve and 200 nautical miles, respectively. Foreign vessels are permitted to transit through Canada’s territorial seas, which occurs regularly with foreign vessels often within ten to fifteen miles of the Canadian coastline on global great circle shipping routes. Canadians were recently awoken to the potential environmental threat of a Russian vessel (Simushir) on a voyage from Washington state to Russia, as a result of the loss of engine power.

In waters inside the territorial sea baselines, Canada treats these waters as if they were their internal land territory and has complete jurisdiction over shipping. Canada took that step with respect to the waters of the Arctic archipelago, drawing straight baselines around the islands and creating the Northwest Passage as internal Canadian waters. That is far from universally accepted internationally. This article won’t address those issues in detail other than from a shipping governance standpoint.

The Law of the Sea Convention is often considered the “constitution of the oceans” governing all waters around the globe which make up approximately 72 per cent of its surface. This provides a legal framework on which the various international shipping conventions and jurisdiction of coastal states is based. Canada led that discussion and the negotiations leading up to the signing of this Convention in 1982, which was subsequently ratified by Canada in 1993. The United States has not yet ratified the Convention which requires a two thirds majority of its Senate.

The Arctic is not given any special status in the Law of the Sea Convention other than article 234 which states:

Ice-covered areas

“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 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 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.”

Article 234 allowed coastal states to legislate with respect to protection of the Arctic environment but not at the expense of mariners abdicating their right of innocent or transit passage.

In the Arctic Ocean basin, there is an area of high seas that is outside the jurisdiction of any coastal states. These waters are commonly referred to as the “doughnut hole” as it is completely surrounded by the exclusive economic zones of the Arctic coastal states. This raises questions about transiting in these waters and also issues around fisheries which impact the safety of life at sea. While Canada was instrumental in negotiating the Convention, it has not followed up by matching its legislation with the necessary shipping infrastructure to assist shipping in Arctic waters.

Under the Law the Sea Convention, states can extend the Continental shelves out past 200 nautical miles if certain geological criteria of bottom sediments prescribed under article 76 of the Law of the Sea Convention are met. Canada has made submissions to the international body set up under the Convention, entitled Commission on the Limits of the Continental Shelf, concerning an enlarged continental shelf claim. This past summer, the Canadian Coast Guard’s vessels CGG Terry Fox and and CCG Louis St. Laurent voyaged to the North Pole collecting oceanographic and seismic data in support of Canada’s article 76 claim in the Arctic Ocean. Whether the ocean bottom at the North Pole is a prolongation of Canada is very much a geological determination based on actual data and third party determination. Being in possession of the real data will be key in supporting Canada’s claim.

The five coastal states that have territory north of 60° North latitude in the Arctic Ocean Basin consist of Canada, the United States, Russia, Denmark (Greenland) and Norway. They are often referred to as the Arctic Five states.

The Arctic Council is an intergovernmental working group that has been set up commencing in 1996 that consisted of all the Arctic states, indigenous peoples and observers. Canada was instrumental in creating this organization which is very unique as brings a multitude of parties together. This organization has been very much in the news recently concerning Arctic marine activities including both offshore drilling and shipping. Canada presently is chairing the Arctic Council whose Chair alternates every two years. The United States will assume the role in 2015. The Arctic Council is seen to be a major force in developing international agreement concerning the Arctic and a forum for discussion on a variety of issues. Defence and security are specifically excluded.

The Arctic Council has entered the area of shipping governance which is also the ambit of the The International Maritime Organization (IMO). Because of perceived gaps in certain response capabilities, agreements were reached between Arctic member states to develop international conventions on search and rescue and marine pollution response. This grew out of concerns raised by the 2009 Arctic Council’s Arctic Shipping Assessment in which Canada played a key role. The assessment served as a roadmap and identified some of the risks inherent in Arctic shipping, and gaps in dealing with those risks. The process provides for a comprehensive discussion around these issues, with many countries having taken the position that the leadership of the Arctic Council is a critical foreign-policy initiative. The international agreements that developed under the Arctic Council’s leadership are not grounded in the Law of the Sea Convention or other international legal instruments, but are standalone documents.

The members of the Arctic Council perceived that these areas of shipping governance needed greater cooperation because of the rapidly changing conditions in the Arctic region. These agreements work in tandem with the existing international regimes on search and rescue and marine pollution response.

The IMO is a specialized UN organization that serves as a vehicle to reach international agreement on shipping. The IMO has been very active in the region with respect to the development of the Polar Code which is a technical code that embraces various aspects of ship construction, operation and manning, but does not address national shipping infrastructure. Canada has played an important role in its development, and much of the original work done by Canada in developing the Arctic Waters Pollution Prevention Act and subsequent regulations have been incorporated into Polar Code. The Polar Code applies to both the Antarctic and the Arctic high seas outside of the coastal states jurisdictions, such as the doughnut hole.

Through Transport Canada Marine Safety, Canada has contributed to the development of IMO’s Polar Code, which has been in development for the past fifteen years, and has brought together private sector interests, naval architects and other leading Arctic shipping experts to develop a framework that is based on a realistic approach to the potential shipping risks that are created by Arctic shipping. The crystallization of Canada’s expertise in this area and decades of work was Fednav’s M/V Nunavik’s recent unescorted voyage through the Northwest Passage. As a nation, we need to put the same energy that we did into finding Franklin into our international shipping governance policy and engagement at the international level. This will ensure rapidly changing Canadian Arctic waters are protected for future generations.

K. Joseph Spears is a maritime barrister and principal of the Horseshoe Bay Marine Group. He helped prepare Canada’s submission to the Arctic Council’s Arctic Shipping Assessment and assisted Transport Canada with respect to a national Marine Investigations course and other governance issues. He can be reached at kjs@oceanlawcanada.