CMI’s role in the quest for better harmonisation of the regulation
of polar shipping is analysed
The revived interest in the Arctic sea routes derives from a combination of many factors – mainly the ever-burgeoning demands[ds_preview] of China’s trade with Europe (China’s trade with other parts of the world, notably Africa, North and South America, would have no advantage from re-routing via the Arctic. The only real distance saving for China is for shipping that originates from its northern ports (such as Shanghai) bound for Europe and vice versa. The Northwest Passage is about 3.000 miles shorter than the traditional alternative from Shanghai to north Europe via the Straits of Malacca and Suez Canal), and longer and larger summer melts of the icecap. What would have been unthinkable a mere decade or two ago, is now starting to make economic sense – larger vessels of all kinds taking the shorter route to and from the East, over the pole.
The passage of more through-traffic in Arctic waters will in itself increase the current but limited port, supply and service infrastructure along the route, which should in turn bring yet more, albeit smaller tonnage to the area. There is also increased interest in subsea exploitation of the region, and the longer summer melt is already allowing increased passenger vessel traffic. These latter two trades are regarded as local destination shipping rather than through transit, and many commentators hold the view that it is in this Arctic destination shipping that the real growth will occur. Depth and en-route service limitations will probably stunt real growth of large ship through-traffic.
But there seems no doubt that whether local or through-transit, the volume of shipping passing through Arctic waters is already increasing significantly. More opportunities for Arctic shipping have a concomitant increased responsibility resting on those who are to sail the ice route and on maritime administrators and legislators whose brief it is to ensure safe and clean navigation – especially in this environmentally sensitive and navigationally dangerous area.
The Comité Maritime International (CMI) has for decades concerned itself with special issues concerning the safety of navigation in polar regions, and with the harmonisation of the legal regime that should regulate this most extraordinary trade route. It is not alone in this endeavour and it is reaching out to cooperate with other international organisations engaged in similar research, all working under the primary lead of the International Maritime Organisation (IMO). It is not an exaggeration to say that there is a massive international polar shipping thinktank under way at present. This is not limited to the north: the Antarctic, though not a significant trade route such as the Arctic can become, is nevertheless seeing an increase in specialist cruise ship activity. It faces similar geographical, environmental, navigational and meteorological challenges as does its northern pole apart (Thus for instance, the IMO guidelines for ships operating in polar waters now include also the Antarctic).
The IMO has recently focussed on the rationalisation of a hitherto very broad and somewhat ill-defined legal regime in polar regions by means of a draft Polar Code. IMO involvement is not new. Almost all the safety conventions apply equally in the Arctic, and there has been a set of IMO polar guidelines in existence since the early 1990s. But the IMO is now trying to tie it altogether in a code of mandatory application. The organisation describes this initiative as a »mandatory International Code of safety for ships operating in polar waters (Polar Code), to cover the full range of design, construction, equipment, operational, training, search and rescue and environmental protection matters relevant to ships operating in the inhospitable waters surrounding the two poles« (See further www.imo.org/MediaCentre/HotTopics/Polar/Pages/default.aspx).
The necessity for an overarching instrument is highlighted if one looks at where polar legal authority lies at present. The main polar states are on the one hand Canada, along whose eastern seaboard much of the Northwest Passage (NWP) stretches before passing the United States to the west and Greenland – under the sovereignty of Denmark – to the east, as well as Iceland, Norway and Finland, and on the other hand the Russian Federation, whose western seaboard fronts much of the Northern Sea Route (NSR).
The legal regime of this extraordinary region has diverse roots found mainly in:
– The delimitation of economic zones under the 1982 Law of the Sea Convention (LOS). This is a complex area of the international law of the sea, with disputes arising over issues such as Canada’s use of straight baselines to determine its averred historical title to the territorial seas around its Arctic islands. Being a matter of international law, these issues are not generally within the ambit of CMI activity.
– The regulation of shipping in »ice-covered areas« (defined as being »covered by ice for most of the year«) in terms of Article 234 of LOS. This provision allows coastal states to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels operating in the ice, without doing so via the IMO.
– Non-binding instruments issued by the IMO including the Arctic Shipping Guidelines and the Polar Shipping Guidelines.
– Legislative controls, especially concerning marine pollution from ships, enacted domestically by polar coastal states, but broadly in accord with what are known as »generally accepted international rules and standards«.
– Regional initiatives such as those adopted by the EU, in relation to polar shipping (The report entitled Legal Aspects of Arctic Shipping (www.ukpandi.com/fileadmin/uploads/uk-pi/Docu
ments/Polar___ice_navigation/EU_legal_aspects_arctic_shipping_summary_en.pdf) is particularly infor-mative of the EU approach to polar shipping. Although the EU strictly does not have any polar members (Greenland elected to opt out of Denmark’s membership) its northern member states are closely involved in polar shipping prospects, as the opening of the NSR would bring increased traffic to its ports. Hamburg would surely be poised to benefit.).
– Classification society rules relating to the construction and operation of ships in polar areas ( Such as the unified requirements prescribed by the International Association of Classification Societies (IACS)).
– All read with the numerous and various international maritime safety conventions dealing generally with safe and clean navigation of ships, and almost all applicable in Arctic waters.
– And all viewed against the background of an over-arching right of innocent passage, given to non-warships passing through a coastal state’s territorial sea and exclusive economic zone (EEZ). There is a view also that transit passage rights apply in certain straits in Canadian and Russian waters.
Some of the issues that arise, and which are often endemic to the polar regions, include:
– The lack of mandatory routeing of shipping passing through both the NWP and the NSR.
– The lack of full and proper hydrographic survey and comprehensive navigational charts ( A regional initiative to improve Arctic surveys and comprising hydrographers from polar states has been formed as the Arctic Regional Hydrographic Commission (ARHC). See www.iho.int/srv1/index.php?
option=com_content&view=article&id=435&Itemid=690).
– Limited en-route service and shore-to-ship facilities.
– Limited shore-based navigational aids.
– Extraordinary demands made by ice conditions on the effectiveness of ship’s machinery, construction, and emergency equipment.
– Similar challenges imposed on master and crew operating in severe ice conditions.
– The lack of mandatory and coordinated ice pilotage requirements.
– Special loadline and SOLAS requirements dictated by anticipated weather and ice conditions.
– Remoteness of the area and the effect that this has on search and rescue and marine pollution prevention facilities.
– The recognition of suitable places of refuge for ships in distress.
– Rationalisation of special ice class requirements to cover ships navigating in the area at various times of the year.
– Insurance issues, especially the extent to which ice trading is excluded under the navigational limits of a ship or cargo policy (For the extent of navigational exclusions applicable to ice passages, see www.lmalloyds com/Web/Market_Places/_nbsp__nbsp_Marine/Joint_Hull/Navigating_Limits/Web/market_places/marine/JHC_Nav_Limits/Navigating_Limits_Sub-Committee.aspx?hkey=
2d77be10-50db-4b30-b43a-a2937ea83625).
These and other issues have come under intense international scrutiny. The shipping industry is giving a strong message that it favours better control of polar shipping. An example of this commitment can be found in the Position Paper of Arctic Shipping of the International Chamber of Shipping (ICS) (The ICS is a consultative member of the CMI. The paper is avaible at www.ics-shipping.org/docs/default-source/Submissions/Other/ics-position-paper-on-arctic-shipping.pdf?sfvrsn=10) which calls for »the formulation of a mandatory, uniform regulatory framework concerning Arctic shipping to ensure maritime safety and environmental protection«. It also seeks legal clarity about the status of Arctic waters, full market access and freedom of navigation.
Where does the CMI see itself in this melee of international effort to close the gaps in polar shipping laws? The CMI draws on a unique international pool of maritime legal expertise. Its membership comprises the national maritime law associations (MLAs) of over 50 states, including all the world’s major shipping players and all the polar states. The members of CMI associations, ranging in size from smaller associations of a few to the 3,000+ membership of the United States MLA, make up many thousands of practising and academic maritime lawyers and those associated with the legal implications of owning and operating ships – such as marine surveyors, arbitrators, average adjusters, and insurance brokers. There are judges and professors, and even a sprinkling of master mariner/maritime lawyers. And many give freely of their expertise and time to help the CMI to study, review and formulate new legal principles aimed at the improvement and unification of maritime laws.
Formerly, and before the emergence of the IMO as the primary driver of international maritime legislation, the CMI debated, drafted and promoted international conventions through one of its member states (usually Belgium, where the CMI has always had its legal base). Bringing conventions into being is now the sole prerogative of the IMO and other UN bodies, but the CMI maintains its role in lending the expertise of its members to most such initiatives – often preparing draft instruments which are then handed to the IMO or other UN bodies for promotion through the international legislative process.
It is in this respect that the CMI hopes to make a real contribution to the development of polar shipping law. It has an active and permanent international working group (IWG) charged with reviewing and promoting the harmonisation of Arctic and Antarctic issues. The IWG is headed up by Nigel Frawley, a Canadian attorney and former Secretary-General of the CMI, and comprises leading world experts on polar shipping and its law. The IWG will be presenting working papers to the forthcoming 41. International Conference of the CMI, being hosted by the German Maritime Law Association (DVIS) in Hamburg (For details see www.cmi2014hamburg.org). The CMI and the DVIS have chosen »Ships in Cold Water« to be one of the two main themes of this significant conference (The other theme is »Ships in Hot Water«, dealing with maritime debt, ship arrest and sale, and especially with a full debate in conference and in a plenary session with a view to finalising an instrument to regulate the Judicial Sales of Ships).
The presentations will cover crucial issues of ice law: The session will be chaired by professor Aldo Chircop of Canada who will outline the work of the CMI in relation to polar shipping law, and give an overview of the legal regime applicable to polar regions. A presentation on the Polar Code will come from professor Tore Henriksen of Norway. Further, professor Alexander Skaridov from Russia will speak on the Northern Sea Route. Loadlines in polar waters will be dealt with by Aldo Chircop, and finally Lars Rosenberg-Overby from Denmark will tackle the difficult issue of civil liability in the polar marine environment. Professor Chircop will then present the report of the group to the CMI Assembly at its meeting on 17 June.
It is perhaps fitting that this all takes place in the port of Hamburg – where the CMI last held a conference forty years ago. Hamburg, as one of the major northern European ports, is no stranger to ice. It is also well served geographically by the Northern Sea Route.
It surely stands to benefit from the opening up of new Arctic horizons of trade with Arctic regions and through-trade to and from the east.
John Hare
