1 Introduction
In recent years, regulatory action has been stepped up significantly to address the strain shipping imposes on polar ecosystems, which already suffer tremendous stress brought on by a warming climate. There is a broad consensus that the risks posed by vessels are best addressed through a global approach,
In Canadian Arctic waters, navigation has been under specific mandatory rules long before the Polar Code was even envisioned. Driven by a combination of concerns for the environment, vessel safety and—more sweepingly—Canada’s “sovereignty”9 over its Arctic expanse, Canada pioneered by pursuing a coastal State approach to ensure safety of navigation and pollution prevention in its Arctic waters. The decision was prompted by the 1969 crossing of
Eventually, Canada’s approach to ensure safety of navigation and pollution prevention in its Arctic waters was internationally validated by the inclusion of Article 234 in the LOSC. Negotiated at the Third United Nations Conference on the Law of the Sea (UNCLOS III) among Canada, the United States and Russia, the provision grants coastal States exceptional jurisdiction over ice-covered waters, enshrining in international law Canada’s unilateral, environmentally focused, coastal State-based strategy. At the time, in the absence of specific international standards on Arctic navigation, the purpose of Article 234 was obvious: it allowed coastal States to fill some of the regulatory gaps. However, only Canada and Russia have made use of their jurisdiction. And as Chircop rightly states, since 2017, “the substantive purpose of Article 234 has been addressed by the Polar Code [to a great extent],” conceding “this does not necessarily mean that there is no further purpose for the exercise of Article 234 jurisdiction.”13 As Vincent et al. outline in this volume, the Arctic Ocean and its unique ecological features are under increasing stress from warming temperatures, pollution, biodiversity loss and habitat destruction. The additional stress imposed by Arctic shipping therefore calls for continued regulatory action.
For Canada, the international flag State-based approach to regulating Arctic navigation raises the issue of how unilateral coastal State jurisdiction under Article 234 may be used in the future. At stake is not only the technical issue of appropriate standards to address concerns of safety of navigation and environmental protection. Any regulatory action related to international navigation in Canadian Arctic waters always also implies assertion of jurisdiction,
2 Shipping in the Canadian Arctic: Tracing Canadian Law-Making
The 1969 SS Manhattan crossing of the Northwest Passage made Canada’s political leadership and the broader public aware of a twofold risk facing the Canadian Arctic.14 The hazardous nature of Arctic shipping, due to extremely difficult conditions of navigation, created by sea ice and cold temperatures and compounded by a lack of reliable charting, became common knowledge. The threat posed to the environment had a galvanizing effect at a time when the need for environmental protection started to draw attention beyond scientific circles.15 Recent incidents, including the oil spill caused by the 1967 grounding of the SS Torrey Canyon off the coast of England and, closer to home, the oil spill caused by the 1970 grounding of the SS Arrow off the coast of Nova Scotia conjured the striking image of a black tide on white ice cover and fuelled opposition to Arctic shipping.
Furthermore, the refusal by the United States to seek permission for the Manhattan crossing made it plain that Canada’s view of its Arctic expanse as “national terrain”16 was not necessarily shared. The reasoning behind the refusal—the fact that the Manhattan would not enter Canadian territorial waters, but remain in international waters throughout its voyage—did not prove reassuring enough. Nor did the fact that Canada asserted jurisdiction by granting unasked-for permission, sent the Canadian Coast Guard icebreaker Sir John A. MacDonald to escort the Manhattan and dispatched a Canadian
2.1 Innovative Coastal State Measures Following the Manhattan Crossing
While the Arctic had long been part of Canadian identity, the Manhattan crossing revealed the uncertainties surrounding Canada’s jurisdiction over the maritime area. The challenge for Canada was to plot a legal course out of the political conundrum created by the Manhattan incident, a course that could both appease domestic concerns and avert international objections. Canada’s 1970 response was two-pronged. First, Canada extended the breadth of its territorial sea from three to twelve nautical miles (M),19 declaring that territorial waters, newly overlapping at several points in the Arctic Archipelago, would make it henceforth impossible to sail through the Northwest Passage without passing through Canadian territorial waters.20 While the US government criticized Canada for proceeding unilaterally, it did not oppose the extension as such,21 which followed then developing State practice.22
waters … adjacent to the mainland and islands of the Canadian arctic [sic] within the area enclosed by the sixtieth parallel of north latitude, the one hundred and forty-first meridian of longitude and a line measured seaward from the nearest Canadian land a distance of one hundred nautical miles [except where the presence of Greenland requires a lesser extent].23
Not only did these ‘arctic waters’ encompass all waters of the Archipelago, they also formed a belt of up to 100 M in breadth around the Archipelago, extending far beyond the narrow strip of typical coastal waters and Canada’s newly extended territorial sea. Reassuring from a domestic viewpoint, the asserted jurisdiction was, however, questionable from an international law perspective. The risk of international opposition was all the more real as Canada’s AWPPA was contemporary with attempts by some coastal States to extend territorial sovereignty beyond 12 nautical miles.24 These attempts met with strong resistance and, given their impact on freedom of navigation, never gained enough traction to become established in law.
Canada’s approach, however, differed in a significant way from these sweeping claims of territorial sovereignty. It was more in line with the restricted approach that focused on coastal fisheries and eventually led to the concept of the exclusive economic zone (EEZ).25 The AWPPA indeed pursued a narrowly defined objective, that is, the protection against vessel-source pollution. This “constructive and functional approach,”26 as McDorman explains, consists in asserting jurisdiction only to the extent it is “functionally necessary” to achieve the set goal.27 The genius of the AWPPA was that it had a geographical scope broad enough and a ‘zero-tolerance’ signal firm enough to address immediate, mainly domestic, concerns that shipping would threaten the Arctic environment, while its narrow pollution prevention focus put potential challengers in a political and moral bind that held international opposition at bay.
Although the environmental objective of the AWPPA garnered international sympathy, Canada’s unilateral approach and contribution to creeping jurisdiction nevertheless displeased several States, including the United States.28 As a precaution and obviously to prevent formal legal challenges to the AWPPA
2.2 Implications of Canada’s Claim of a Historic Title over Its Arctic Archipelago
A complicating twist to the legal debate about Canada’s coastal State jurisdiction in its Arctic waters is Canada’s claim that the waters of the Arctic Archipelago are historic internal waters, arguably derived from the 1880 transfer of the Arctic area from Great Britain to Canada.34 According to Lajeunesse’s account, signs that Canada considered these waters its own can be found throughout the first half of the twentieth century, although a coherent legal policy undergirding the claim was emerging only towards the end of the 1950s. Helped along by the 1951 ICJ Anglo-Norwegian Fisheries case,35 it coalesced around the notion that waters within coastal archipelagos may be considered historic internal waters and enclosed by straight baselines.36 Pharand traces a
Things came, however, to a head in 1985, when the US Coast Guard icebreaker Polar Sea was sent through the Northwest Passage. Planned by US and Canadian officials as purely operational, the transit turned into a political crisis when popular perception made it out to be a challenge to Canada’s sovereignty42 and the US government, pressured by its Canadian counterpart, failed to request permission, even asserting that the transit was “an exercise of navigational rights and freedoms not requiring prior notification.”43 Canada did not oppose the passage, which it deemed in compliance with applicable standards. Instead, it again granted unasked-for permission and sent two officers on board the Polar Sea to observe the voyage. However, the time had come to assert “Canada’s full sovereignty over the waters of the Arctic [A]rchipelago”44 and the Canadian government decided to do so by drawing baselines around
Although Canada did not act on that claim, leaving regulation of international navigation in the Archipelago unaltered, the international reaction was noticeable. The US government, considering the Northwest Passage an “international strait” where freedom of navigation applies,47 ignored the stated purpose of the baselines and responded by reframing them as a means for Canada to “establish its claim” of internal water and declaring “that there is no basis in international law to support the Canadian claim.”48 Member States of the European Community essentially endorsed this view.49 Bilateral US-Canadian attempts to find common ground led to the 1988 “agreement to disagree.” In this carefully worded agreement on scientific cooperation in the Arctic, the United States pledges “navigation by U.S. icebreakers within waters claimed by Canada to be internal will be undertaken with the consent of the Government of Canada.”50 The question of the legal status of the Northwest Passage nevertheless remains, with both parties reserving their respective position.51 In recent years, international opposition to Canada’s position on its internal waters seems to have faded, with disapproval being voiced subtly in national Arctic strategies.52
A new era was ushered in when the Polar Code became mandatory in 2017.53 Regulation of polar navigation now rests mainly on internationally agreed-upon obligations. In a major shift towards flag State-centred responsibility, these are primarily imposed by the flag State on vessels flying its flag.54 Incidentally, the coastal State may impose them on foreign-flagged vessels navigating in waters under its jurisdiction as “generally accepted international rules and standards.”55 Besides pollution prevention obligations, the Polar Code also prescribes obligations on safety of navigation, extending the functional approach pioneered by Canada in its Arctic waters.
During negotiations, Canada aimed to ensure that the Polar Code would achieve at least the level of protection established by its coastal State regulations.56 Arguably, this goal was met, as Canada’s new 2018 Arctic Shipping Safety and Pollution Prevention Regulations (ASSPPR)57 essentially align domestic standards with the Polar Code. Safety provisions are incorporated by reference58 and complemented by a few additional requirements.59 Environmental requirements are directly, albeit selectively, incorporated, preserving the pre-existing level of protection resulting from the AWPPA zero-discharge principle.60
3 Revisiting the Geographical Scope of Article 234
The geographical scope of application of Article 234 has prompted discussion from the outset. Its convoluted wording first raised the question of how the provision fits into the LOSC’s general framework of maritime zones. Rising temperatures now prompt concern that receding ice cover might shrink its geographical scope of jurisdiction.
3.1 Article 234 in the Context of the LOSC’s Zonal Framework
Article 234 provides the coastal State with the authority to adopt and enforce measures related to “pollution from vessels in ice-covered areas within the limits of the exclusive economic zone” (emphasis added). Ambiguous and unique in the LOSC, this phrasing may refer to both the EEZ’s inner and outer limits or to its outer limits only. While the “ordinary meaning … given to the terms of
McRae and Goundrey, followed by Boyle, consider that Article 234 applies to the EEZ only.66 Franckx and Boone consider that this “narrow or literal interpretation is the most convincing one,” arguing that “the geographical extent of Article 234 must be understood as within 12 and 200 [nautical miles], measured from the baseline.”67 This interpretation, which fits neatly into the zonal framework of the LOSC, makes it appealing from a systematic point of view. It does result, however, in Arctic coastal State powers that are broader in the EEZ than in the territorial sea or a strait, not least with respect to enforcement.
Taking the opposite view, Pharand contends that the provision “must have been intended to include the territorial sea.”68 In support, he cites senior Canadian delegate to UNCLOS III, Léonard Legault, who wrote that Article 234 “ratifies Canada’s action in adopting the Arctic Waters Pollution Prevention Act in 1970.”69 This is corroborated by declassified US diplomatic cables and other confidential US communications of the time, which clearly envision Article 234 to also apply to the territorial sea.70 The provision has even been described as applying “from the outer limits of the coastal State’s exclusive economic
If Article 234 does indeed extend to all waters landward of 200 M, including straits, it may still be questioned whether coastal State powers under Article 234 override the right of transit passage.73 In other words, in the event that the Northwest Passage is to be considered a strait used for international navigation, would Article 234 still apply? Mostly this is thought to be the case,74 and for good reason. Canada engaged in UNCLOS III negotiations with the objective to enshrine coastal State jurisdiction for laws such as the AWPPA precisely because Canada’s powers over the Northwest Passage were controversial. The United States, pushing for a new straits regime, had their own motives to remove the Northwest Passage from the debate. According to US diplomatic cables of the time, it sought a “quid pro quo”75 or a “package deal,”76 that is, Canada’s endorsement of the straits regime in return for US support for the “Arctic pollution article, which would apply to the Northwest Passage.”77 As the 1976 US “Memorandum for the President” on the draft provision that became Article 234 explains, “an Arctic strait would be subject to this article and our right of passage, as well as that of others, would be limited by this article.”78
Interpretation denying the applicability of Article 234 to the Northwest Passage would empty the provision of its intended meaning. It would also
All this is not antithetical to Canada considering the Northwest Passage historic internal waters. This position has emerged since the 1950s and crystallized more clearly after the Manhattan incident, but as Lajeunesse shows, Canada refrained from openly acting on it. To prevent forceful backlash with potentially irreversible consequences, it steered instead a cautious, functional course in its international dealings.80 At UNCLOS III this translated into the “package deal,” which essentially allowed the two States to agree to disagree on the status of the Northwest Passage.81 Claiming the waters of the Archipelago as historic internal waters, and delineating them unequivocally through baselines drawn around the Archipelago following the 1985 Polar Sea transit, does not prevent Canada from self-restraining and keeping its regulation within the bounds of Article 234.
3.2 Article 234 in the Context of Receding Sea Ice Cover
Another question regarding the extent of the geographical scope of Article 234 arises from the provision’s reference to ice cover. In recent years, warming temperatures have caused tremendous loss of Arctic sea ice, which decreases in thickness and extent. Regarding the annual minimum extent at the end of the Arctic summer, the loss of sea ice area approaches a staggering 50 percent between 1979 and 2020.82 Although sea ice attrition affects the entire region, its magnitude varies greatly across Arctic waters.83 In the Canadian Arctic, some regions already experience a rapid increase in the number of ice-free days, while others are likely to retain thick multiyear ice over the next few decades.84
Under the heading ‘ice-covered waters,’ Article 234 refers to ice cover twice: coastal States are granted jurisdiction regarding “marine pollution from vessels in ice-covered areas … 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” (emphasis added). Well before global warming became a concern, McRae and Goundrey framed the issue raised by this phrasing as a matter of material scope, focusing on whether coastal State measures are restricted to addressing obstructions and hazards created by the ice cover and severe climatic conditions.86 This may reflect the general understanding of the time that the geographical scope of the provision was not in doubt.
Although ‘ice cover’ may in practice refer to a broad range of ice conditions, it is not defined in the LOSC. Its meaning varies depending on context, as illustrated by the various thresholds of ice concentration and ice thickness that are in use for scientific and navigational purposes.87 Further specification in Article 234 that areas concerned are ice-covered “for most of the year” allows one to infer that the jurisdiction was not intended for regions that experience only seasonal ice cover, such as the North Atlantic, the Baltic Sea, the Bering Sea or the Sea of Okhotsk. It is noteworthy that Canada’s regulation of Arctic shipping does not refer to ice cover, but determines the scope of application based on geographic boundaries, such as those of the definition of “arctic waters.”88 There is indeed good reason to think that the reference to ice cover was not intended to be taken in a literal, but rather in a figurative sense or as a general geographical marker.89
As Kraska underlines, “[o]stensibly applicable to all ‘ice-covered areas,’ the new article was really only about the Arctic Ocean.”92 This understanding also transpires from the aforementioned US Memorandum for the President. It explains that “[w]hile the Arctic is not specified, the Article will apply only to ‘ice-covered’ areas … This will in fact limit the area to the Arctic Ocean,” adding that “Antarctica would not … be included” in its purview.93 Precisely why it is that the Arctic Ocean is not referred to in Article 234 is not clear, but explicit reference to it would have stood out in a convention applicable to the entire world ocean. A more generic reference to polar waters may have easily derailed negotiations by broadening the issues at stake and by increasing the number of interested States. McRae indeed credits the three-party negotiations and agreement on the terms of the provision for the successful inclusion of Article 234 in the LOSC.94
If ice cover was never considered a condition for the application of the ‘Arctic exception’ or ‘Arctic Article,’ as the provision is sometimes nicknamed,95 then there should be no cause for concern that jurisdiction under Article 234 is melting away. Furthermore, despite the increasing likelihood that the Arctic Ocean will become ice-free during summer before mid-century, ice will continue to build up in winter.96 ‘Atlantification’ of the Arctic Ocean, which entails
Finally, a teleological argument can be made that decreasing ice should have no bearing on the provision’s geographical scope of application. Negotiation of Article 234 was motivated by the recognition that the Arctic environment is exceptionally sensitive and poses exceptional hazards to navigation. Jurisdiction under Article 234 was therefore premised on the acknowledgement that internationally agreed-upon rules and standards for navigation, mostly designed for more temperate ocean areas, may provide insufficient protection and may need to be complemented by unilateral coastal State measures.98 As argued elsewhere, melting ice does not render the protective purpose of Article 234 obsolete, quite the contrary.99 The strain it causes makes Arctic ecosystems less resilient to additional stressors, including navigation and vessel-source pollution,100 and thus preventive measures all the more relevant.
4 Revisiting the Material Scope of Article 234
When Article 234 was negotiated in the 1970s, pollution by oil was by far the most widely known vessel-source threat posed to the Arctic environment. Elicited by the crossing of the SS Manhattan, the predominant disaster scenario was a black tide on pristine ice. Yet, Arctic shipping comes with a much more diverse array of threats. As detailed in Vincent et al. in this volume, many are invisible and by far not all result from oil pollution; stressors can be chemical, but also physical and biological. Noise pollution,101 ship strikes,102 habitat
As UNCLOS III president Tommy Koh said, the LOSC is intended to provide a “constitution for the oceans which will stand the test of time.”105 This ambitious goal may be best achieved through an evolutionary approach to interpretation and will inspire the following examination of the kinds of threats a coastal State may address under Article 234. Scrutiny of specific measures as to their compatibility with the obligation spelled out in Article 234 to “have due regard to navigation and the protection and preservation of the marine environment” will, however, be mostly beyond the scope of this chapter.
4.1 Jurisdiction Restricted to Measures Addressing Cold and Ice-Induced Threats?
McRae and Goundrey discuss in detail whether the reference to “severe climatic conditions and the presence of ice” restricts the material scope of Article 234 to measures that address risks of pollution resulting specifically from these Arctic conditions. Tracing the drafting history of Article 234, they note a shift in focus.106 While early discussions, prompted by Canada, centred on the distinct conditions that make Arctic shipping especially hazardous and warrant particular measures,107 the region’s exceptional ecological vulnerability came into focus at the Conference on the Prevention of Pollution from Ships held in 1973 by the Inter-Governmental Maritime Consultative Organization (IMCO,
McRae and Goundrey caution, however, that this broad interpretation of Article 234 may render much of the provision’s wording related to climatic conditions and ice cover “unnecessary and essentially repetitive.”113 As emerges from the discussion above, however, the purpose of these references may not be to define the material scope of jurisdiction, but to outline the geographical scope of the jurisdiction under Article 234. This supports the view that coastal States may subject navigation to measures that address the particular vulnerability of the Arctic, whether or not the risk they address is created by the typically Arctic conditions of cold and ice. Accordingly, the main constraint on measures adopted under Article 234 stems from the provision’s focus on vessel-source pollution.
4.2 Measures to Respond to Pollution Threats
the introduction by man, directly or indirectly, of substance or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.
Oil and other chemical substances, but also sewage, food waste and garbage, all addressed by the Polar Code,114 clearly fall under this definition. Other kinds of chemical, biological and physical stressors, however, raise the issue of the contours of the pollution a coastal State may address.
Black carbon emissions, for example, have an outsize impact in the Arctic, blackening white surfaces and accelerating local melting.115 Yet, it may seem questionable whether ship exhaust, emitted into the atmosphere, constitutes pollution of the ‘marine environment’ in the sense of Article 1(4). The broader language of “marine pollution from vessels” in Article 234 suggests, however, that the meaning of pollution is informed both by the emitting medium, that is, the ship and the receiving medium (water column, ice cover and superjacent atmosphere).116 As can be drawn from Articles 212 and 222, vessel-source air pollution is in the remit of the LOSC and unilateral coastal State action to tackle black carbon emissions can arguably be considered within the scope of Article 234. This is particularly relevant in the context of slow multilateral standard-setting under Article 212(3): after more than a decade of discussion, the IMO has yet to agree on mandatory measures. That said, Canada, actively engaged in the IMO process by coordinating the Correspondence Group of the IMO Prevention, Preparedness and Response Subcommittee,117 does not appear to harbour any ambition for unilateral action on the matter.118
Ship-generated noise alters the soundscape of the marine environment with the potential of causing significant harm, in particular to noise-sensitive species. Many Arctic mammals have adapted to life in an ice-covered and therefore comparatively quiet ocean by developing unique sound-depending
4.3 Measures to Respond to Other Types of Environmental Threats
Shipping causes disruption in more ways than through pollution by the introduction of substances or energy as envisioned in Article 1(4). For instance, ship strikes, that is, collisions between marine mammals and vessels, are often
Equally difficult is the case of icebreaking. Ice provides a habitat for many species, from microorganisms, like algae, all the way up the food chain to marine mammals. Warming temperatures not only melt the icy barrier to navigation, but also a unique ecological niche for ice-dependent species. Icebreaking contributes to the fracturing of ecosystems; it may also disrupt critical migration routes and create death traps for animals and the humans who hunt them.133 It might even locally speed up melting processes.134 The only effective way to protect ice habitats against the effects of icebreaking is to prevent icebreaking. Prohibitions could be limited in space and time to balance navigation and protection needs under the due regard clause of Article 234. They could apply to areas identified as particularly valuable habitats or in key periods, including in
Canada’s Tuvaijuittuq Marine Protected Area (MPA), located north of Ellesmere Island, provides an interesting case study with respect to icebreaking. The area was granted interim status with the objective to protect part of the Last Ice Area, which retains the thickest and oldest multiyear pack ice in the Arctic.135 Prohibited is any activity “that disturbs, damages, destroys or removes from the Marine Protected Area any living marine organism or any part of its habitat, or is likely to do so,”136 which is broad enough to include navigation and icebreaking. However, exceptions apply to national defence and marine scientific research activities,137 as well as to navigation carried out by a foreign national, ship or State.138 In clear contradiction to the very purpose of the MPA, icebreaking remains possible, including for the exercise of navigational rights by foreign-flagged vessels. This raises the question of whether Canada could choose to prohibit such icebreaking activities under Article 234.
Icebreaking cannot by any stretch of the imagination be considered ‘pollution’ and its prohibition would in fact entail prohibition of navigation. It could be argued that prohibition of icebreaking is in keeping with the spirit of Article 234, which was designed to provide Arctic coastal States with the authority to impose reasonable restrictions that help prevent “major harm or irreversible disturbance of the ecological balance.” Further support for such a teleological interpretation could be found in the general Article 192 obligation “to protect and preserve the marine environment.” However, the exceptions provided by the legal framework of the Tuvaijuittuq MPA suggest that the spirit of Article 234 may have seemed insufficient to support measures that effectively prohibit international navigation. No such jurisdictional restrictions would apply to those waters Canada considers internal waters. However, the result would be a patchwork regime of navigational rights that depend on the vessel’s location in the MPA. This is without considering the political risk the claim of full sovereignty entails, a risk that may not be worth taking in an area with no commercial navigation.139
The link between safety measures and pollution prevention is explicitly acknowledged in the Polar Code.140 Article 234, for its part, acknowledges the “obstruction and exceptional hazards” ice creates. While this lends credit to the argument that coastal State measures may include safety measures,141 the extent to which this is possible remains uncertain. Although many safety measures may lower the risk of incidents that have the potential to generate pollution, not all of them are directly aimed at “the prevention, reduction and control of marine pollution.” A case in point is the measures focusing on lifesaving in case of an accident, including provisions on survival equipment, rescue considerations and firefighting systems. Mitigation of the environmental impact of an accident as a contingent positive side effect may prove insufficient for such measures to fall under Article 234.
By contrast, safety measures designed to reduce the risk of accidents or their environmental fallout can arguably be considered pollution prevention measures under Article 234. Traffic regulation schemes, for instance, are thought to be part of the Article 234 toolbox,142 as are manning and machinery requirements and hull design and construction standards. The latter were part of Canada’s regulatory regime established under the 1970 AWPPA,143 complementing more conventional measures of pollution prevention, such as restrictions related to the deposit of oil.144 The whole regime, including the safety measures, has been considered covered by the jurisdiction set forth in Article 234.145
5 Revisiting Canada’s ‘Single Approach’ to Regulating Arctic Shipping
Canada subjects navigation in its Arctic waters to several laws and regulations, most prominently the ASSPPR adopted under the AWPPA, but also the Shipping Safety Control Zones Order146 and NORDREG. These regulations follow a ‘single approach’ in that they set forth a uniform legal regime, which does not distinguish between the various LOSC maritime zones, although these have been
5.1 The Single Approach and Article 234
The single approach dates back to the 1970 AWPPA. The claim that Arctic waters within the Arctic Archipelago are historic waters and under Canada’s full sovereignty, which was made explicit only after Canada established its very first shipping regime for the Arctic, had no consequence on that regime. This speaks to Canada’s consistently functional approach to regulating navigation with the sole objective of making it safe and protective of the environment. Then Prime Minister Trudeau mapped out the path in 1970 stating that Canada had no intention to prevent navigation altogether and considering it “senseless” “to deny passage to all foreign vessels in the name of Canadian sovereignty.”149 Canada does not display any appetite either for promoting its Arctic waterways as an alternative to established global shipping routes,150 choosing instead the pragmatic path of adjusting to developing needs through the establishment of low-impact shipping corridors, described by Dawson and Song in this volume.
The single approach may cloud the jurisdictional basis of Canada’s Arctic shipping regulations. From the drafting history of Article 234, it is but a small step to conclude that Canada’s regulatory regime rests on the authority granted by that provision. Yet, Canada has never said so explicitly until two regulatory reforms in 2010 provided the opportunity to comment on the issue. Regarding the expansion of Canada’s Arctic waters to 200 M, the Legislative Summary notes—rather cautiously—that Article 234 “appears to permit [the] proposed extension.”151 As to its newly mandatory vessel traffic services, Canada declared—more assertively—before the IMO that “Article 234 provides a complete legal justification in international law for NORDREG.”152
The main legal advantage of a single uniform regime is that it provides regulatory coherence that makes application and enforcement relatively
The main inconvenience of a single regime based on Article 234 is, of course, that it has to remain within the bounds of the provision’s limited jurisdiction. Although Article 234 may provide the jurisdictional basis for Canada’s regulations regarding its EEZ and, to some extent, its territorial sea, it seems more accurate to describe the provision as the self-imposed de facto ceiling regarding regulations that apply to waters of the Archipelago considered internal waters. Given its claim of full sovereignty and unrestricted jurisdiction, Canada does not need to rely on Article 234, although it may, of course, decide in full sovereignty to regulate navigation in a way that does not exceed its stricter bounds, extending the functional approach to its internal waters.
This entails that Canada may have to contend with the limits of the jurisdiction provided under Article 234. Regulations not related to pollution in the broadest sense may fall outside its material scope and if they have the effect of preventing navigation, they may conflict with its due regard obligation. For instance, prohibition of icebreaking applicable to a sensitive habitat or a vital migration route as part of an area-to-be-avoided within a marine protected area may be difficult to impose based on Article 234.
5.2 Overcoming the Limitations of Article 234
One way to deal with the constraints of Article 234 is to push against its boundaries. A broad, evolutionary interpretation, in keeping with present-day knowledge of Arctic ecosystems and the stressors that weigh on them, may help achieve an adequate level of protection. Such an interpretation should take into account, beyond Article 234 itself and its immediate treaty context,
The Preamble of the Polar Code in particular may inform the debate on the scope of Article 234. It acknowledges that “coastal communities in the Arctic could be, and that polar ecosystems are, vulnerable to human activities, such as ship operation”156 and that there is a “relationship between the additional safety measures and the protection of the environment.”157 The unambiguous reaffirmation of the vulnerability of Arctic ecosystems emphasizes what should be the core motivation of any regulation of Arctic shipping. The reference to ‘ship operation’ in general, for its part, may extend the discussion beyond the narrow issue of vessel-source pollution to the wide range of chemical, physical and biological stressors that come with shipping in the Arctic, as highlighted by Vincent et al. in this volume. This and the acknowledgement that safety of navigation has environmental benefits may help make the case for a broad understanding of the material scope of Article 234.
The reference to the vulnerability of coastal communities may reinforce new coastal State approaches to governing the regulation of shipping in waters under their jurisdiction. Canada recently adopted the United Nations Declaration on the Rights of Indigenous Peoples Act,158 committing to go forward by using what Beveridge calls a “decolonizing lens” in this volume. A systematic involvement of Inuit communities in the design and application of Canadian regulations on shipping in Canadian waters of Inuit Nunangat, the Inuit homeland, including with regard to the establishment of low-impact shipping corridors,159 may not only influence regulatory choices, but also shift our understanding of the “scientific evidence” referred to in Article 234 and required to justify these choices.
Broad, evolutionary interpretation of Article 234 has its limits, however. Regulations intended to apply within the Arctic Archipelago, but difficult to justify under Article 234, may therefore prompt Canada to explore the option of departing from the single approach and relying on the claim of full sovereignty. The ecological risk such regulations are intended to reduce has to be weighed against the political risk this departure entails. The regulation as such could be challenged, but the even greater political risk is that reliance
6 Conclusion
This chapter started by tracing the genesis of Canada’s legal regime on Arctic shipping, set in motion by the 1969 Manhattan crossing. Canada’s regulatory choices—and in particular its functional approach centring on pollution prevention—remained essentially unaffected by the claim of full sovereignty over the waters of the Arctic Archipelago on historic grounds, made discreetly in 1973 and openly in 1985, and the disagreement on the merits of that claim, challenged notably by the United States. The inclusion of Article 234 in the LOSC has provided coastal States with exceptional jurisdiction over ice-covered waters and effectively endorsed Canada’s functional approach. In 2017, international standard-setting resulted in the entry into force of the Polar Code, which pursues an extended functional approach that aims for pollution prevention and safety of navigation. Canada’s new ASSPPR embrace the Polar Code, all while taking advantage in some minor respects of the continued possibility to rely on coastal State jurisdiction under Article 234.
The chapter then turned to the geographical scope of Article 234. Despite uncertainties expressed in the literature as to whether the provision applies to all waters landward of 200 M, Canada’s regulation applicable to all Arctic waters seems to be on solid ground. It appears in particular that the Northwest Passage, in the event it is determined to be a strait used for international navigation, can still be subjected to regulations based on Article 234. As for the references to ice cover in Article 234, they are best characterized as a geographical marker, rather
The material scope of Article 234 was examined next. While the provision was arguably fashioned to provide jurisdiction on vessel-source substance pollution, its objective, the awareness that contemporary vessel-caused threats go beyond discharge of substances and the acknowledgement that safety measures may have a protective effect for the environment all contribute to make a compelling case for a broader interpretation of the material scope of Article 234. However, some regulations, although effective from an environmental point of view, may still be difficult to justify under Article 234. Prohibition of icebreaking, which may have the practical effect of preventing navigation altogether, is a prominent example.
Finally, Canada’s single approach to regulating Arctic shipping, seemingly based on Article 234, was assessed. Canada has fared well in the past, notably because of the functional course inherent to the single approach, which allowed it to push boundaries and impose regulations all while signalling restraint. Still, Article 234 may prove too limited in scope to address some of the stressors that come with navigation at a time of tremendous environmental change in the Arctic. With respect to shipping within the Arctic Archipelago, reliance on full sovereignty may therefore be worth exploring. Steering a continued, although broadened, functional course may help avoid backlash that calls into question both new and established regulations.
Acknowledgements
This chapter draws on research supported by the Social Sciences and Humanities Research Council. I wish to thank workshop participants, in particular Aldo Chircop and Suzanne Lalonde, for incisive comments on an earlier draft of the chapter.
For the role of flag States, see Bankes in this volume.
See Pauline Pic et al., “The Polar Code and Canada’s Regulations on Arctic Navigation: Shipping Companies’ Perceptions of the New Legal Environment,” The Polar Journal 11:1 (2021): 95–117, https://doi.org/10.1080/2154896X.2021.1889838.
United Nations Convention on the Law of the Sea, 10 December 1982 (in force 16 November 1994), 1833 UNTS 396.
Id., Article 94(5).
Id., Article 194(1).
Id., Article 211(1) and (2).
Arctic Council, Arctic Marine Shipping Assessment 2009 Report, 6–7 (particularly Recommendation I.C), https://oaarchive.arctic-council.org/bitstream/handle/11374/54/AMSA_2009_Report_2nd_print.pdf?sequence=1&isAllowed=y.
International Code for Ships Operating in Polar Waters (Polar Code), IMO Resolution MSC.385(94) (21 November 2014, effective 1 January 2017); Amendments to the International Convention for the Safety of Life at Sea 1974, IMO Resolution MSC.386(94) (21 November 2014, effective 1 January 2017); Amendments to MARPOL Annexes I, II, IV and V, IMO Resolution MEPC.265(68) (15 May 2015, effective 1 January 2017).
See Donald R. Rothwell, “The Canadian-U.S. Northwest Passage Dispute: A Reassessment,” Cornell International Law Journal 26 (1993): 331, at 337–338.
Arctic Waters Pollution Prevention Act, SC 1969–1970, c 47; current version, see RSC, 1985, c A-12 [AWPPA].
Id., s 4.
For the mandatory version, see Northern Canada Vessel Traffic Services Zone Regulations, SOR/2010-127 [NORDREG].
Aldo Chircop, “Jurisdiction over Ice-covered Areas and the Polar Code: An Emerging Symbiotic Relationship?,” Journal of International Maritime Law 22:4 (2016): 275–290, at 290.
Nicholas C. Howson, “Breaking the Ice: The Canadian-American Dispute over the Arctic’s Northwest Passage,” Columbia Journal of Transnational Law 26:2 (1988): 337–376, at 350.
Growing environmental awareness led to the 1972 UN Conference on the Environment held in Stockholm.
Expression used in 1958 by the Minister of Northern Affairs and cited in a 1969 policy statement by Prime Minister P.E. Trudeau, see House of Commons, Debates (15 May 1969), 8720.
Suzanne Lalonde, “Evaluating Canada’s Position on the Northwest Passage in Light of Two Possible Sources of International Protection,” in The Limits of Maritime Jurisdiction, eds., Clive Schofield, Seokwoo Lee and Moon-Sang Kwon (Leiden: Brill Nijhoff, 2014), 575–588, at 577.
Franklyn Griffiths, “The Shipping News: Canada’s Arctic Sovereignty Not on Thinning Ice,” International Journal 58:2 (2003): 257–282; Rob Huebert, “The Shipping News Part II: How Canada’s Arctic Sovereignty Is on Thinning Ice,” International Journal 58:3 (2003): 295–308; Donald McRae, “Arctic Sovereignty? What is at Stake?,” Behind the Headlines 64:1 (2007): 1–23.
Act to amend the Territorial Sea and Fishing Zones Act, St Can 1969–1970, c 68, s 1.
Standing Committee on External Affairs and National Defence, Minutes of Proceedings and Evidence, 1069–70, 25:18 ff.
Ted L. McDorman, Salt Water Neighbors: International Ocean Law Relations between the United States and Canada (Oxford: Oxford University Press, 2009), 63–65.
Donald R. Rothwell and Tim Stephens, The International Law of the Sea, 2nd ed. (Portland: Hart Publishing, 2016), 69–70; Suzanne Lalonde, “The Northwest Passage,” in Canada and the Maritime Arctic: Boundaries, Shelves, and Waters, eds., P. Whitney Lackenbauer, Suzanne Lalonde and Elizabeth Riddell-Dixon (Peterborough: NAADSN, 2020), 107, at 113.
AWPPA (n 10), s 3(1).
See “Jurisdiction Claimed over Territorial Waters and Fishing,” ILM 3:3 (1964): 551–552.
Rothwell and Stephens (n 22), p. 69.
House of Commons, Debates (16 April 1970), 5951.
McDorman (n 21), p. 75.
Id., at 76–78, citing a Canadian government official mentioning “a drawer full of protests.” Pointing to consultations Canada was conducting when fleshing out its regulatory regime, McDorman questions the degree to which Canada’s measures can be considered unilateral.
See Pierre E. Trudeau’s remarks on the AWPPA, “Canadian Legislation on Arctic Pollution and Territorial Sea and Fishing Zones: Canadian Prime Minister’s Remarks on the Proposed Legislation,” ILM 9:3 (1970): 600; see also McDorman (n 21), p. 77.
Canada, Declaration Recognizing as Compulsory the Jurisdiction of the Court, 7 April 1970, 724 UNTS 63, at 66 (item 2(d)).
Canada, Declaration Recognizing as Compulsory the Jurisdiction of the International Court of Justice, 10 September 1985, 1406 UNTS 133, at 134.
See also Myron H. Nordquist, Satya Nandan and Shabtai Rosenne, UN Convention on the Law of the Sea, 1982: A Commentary, vol. IV (Dordrecht: Martinus Nijhoff, 1990): Article 234 (p. 392), at para 234.5(g) (p. 398).
Act to amend the Arctic Waters Pollution Prevention Act, SC 2009, c 11, s 1.
McDorman (n 21), p. 235.
Fisheries Case (United Kingdom v. Norway), [1951] ICJ Rep 116.
See Adam Lajeunesse, Lock, Stock, and Icebergs: A History of Canada’s Arctic Maritime Sovereignty (Vancouver: UBC Press, 2016), particularly chapters 1–3. See also conclusions of an internal External Affairs study: Memorandum, “Status of the Waters of the Canadian Arctic Archipelago,” March 9, 1959, LAC, RG 25, file 9057–40, reprinted in Adam Lajeunesse, ed., Documents on Canadian Arctic Maritime Sovereignty: 1950–1988, DCASS number 13, 2018, 98, https://pubs.aina.ucalgary.ca/dcass/84387.pdf.
Standing Committee on Indian Affairs and Northern Development, Proceedings, 1969–70, 1:6.
Donat Pharand, Canada’s Arctic Waters in International Law (Cambridge: University Press, 1988), 111–112.
Letter dated 17 December 1973, in Edward G. Lee, “Canadian Practice in International Law during 1973 as Reflected Mainly in Public Correspondence and Statements of the Department of External Affairs,” Canadian Yearbook of International Law 12 (1974): 272, at 277 ff. (specifically 279).
Id., 279.
Lajeunesse (n 36), chapters 4–7.
Id., 255–261.
United States Department of State, Telegram,151842, 17 May 1985, reprinted in Office of Ocean Affairs, Limits in the Seas No. 112: United States Responses to Excessive National Maritime Claims (1992), 73, https://www.state.gov/wp-content/uploads/2019/12/LIS-112.pdf.
House of Commons, Debates (10 September 1985), 6463.
Territorial Sea Geographical Coordinates (Area 7) Order, SOR/85–872.
House of Commons, Debates (n 44), 6463 (emphasis added).
For a recent iteration, see White House, National Strategy for the Arctic Region, 10 May 2013, 11, https://obamawhitehouse.archives.gov/sites/default/files/docs/nat_arctic_strategy.pdf.
James W. Dyer, Acting Assistant Secretary of State for Legislative and Intergovernmental Affairs, Letter dated 26 February 1986, reproduced in United States Department of State (n 43), p. 29 (emphasis added).
British High Commission Note No. 90/86 of 9 July 1986, reproduced in United States Department of State (n 43).
Agreement on Arctic Cooperation, 11 January 1988 (in force 11 January 1988), CTS 1988/29, cl 3.
Id., cl 4.
References to “freedom of navigation” appear alongside commitments to respect the law of the sea, which would include respect of historic titles. Among others, see Germany, Germany’s Arctic Policy Guidelines, August 2019, https://www.auswaertiges-amt.de/blob/2240002/eb0b681be9415118ca87bc8e215c0cf4/arktisleitlinien-data.pdf; China, China’s Arctic Policy, January 2018, https://english.www.gov.cn/archive/white_paper/2018/01/26/content_281476026660336.htm; France, Le Grand Défi de l’Arctique: Feuille de Route Nationale sur l’Arctique, June 2016, https://www.diplomatie.gouv.fr/IMG/pdf/frna_-_vf_-web-ok_cle0dd1f2.pdf.
This was accomplished through the amendment of the SOLAS and the MARPOL Conventions: see International Convention for the Safety of Life at Sea Convention, 1 November 1974 (in force 25 May 1980), 1184 UNTS 2 [SOLAS], as amended by Resolution MSC.386(94), in Report of the MSC on its 94th Session, Annex 7, IMO Doc MSC 94/21/Add.1 (21 November 2014). See also International Convention for the Prevention of Pollution from Ships, 2 November 1973, 1340 UNTS 184, as amended by the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 17 February 1978 (both in force 2 October 1983), 1340 UNTS 61, as amended by Resolution MEPC.265(68), in Report of the MEPC on its 66th Session, Annex 11, IMO Doc MEPC 68/21/Add.1 (15 May 2015).
LOSC (n 3), Article 211(2).
On the issue of these so-called GAIRS, see Bankes in this volume.
Domestic regulation included, besides NORDREG (n 12), in particular the Arctic Shipping Pollution Prevention Regulations, CRC, c 353 (repealed) adopted under the AWPPA (n 10).
Arctic Shipping Safety and Pollution Prevention Regulations, SOR/2017-286 [ASSPPR]. See also Kristin Bartenstein, “Between the Polar Code and Article 234: The Balance in Canada’s Arctic Shipping Safety and Pollution Prevention Regulations,” Ocean Development and International Law 50:4 (2019): 335–362.
ASSPPR (n 57), s 6.
For example, the requirement of an ice navigator in specific circumstances. Id., s 10.
Id., s 12 ff. Discharge restrictions for sewage for example were tightened (Id.,ss 19–20) and some Polar Code allowances were not included in the ASSPPR, see Bartenstein (n 57), p. 344.
SOLAS (n 53), Chapter XIV, reg 2, para 5.
MARPOL (n 53), Article 9(2). Canada had addressed the meaning of the clause in relation to Article 234 in a statement upon becoming a party to the Convention in 1992, see IMO, Status of IMO Treaties (as of 16 August 2022), 133 (Canada, “2. Arctic Waters” b), https://wwwcdn.imo.org/localresources/en/About/Conventions/StatusOfConventions/Status%20-%202021.docx.
For details, see Bartenstein (n 57), pp. 351–352.
Chircop (n 13), p. 283.
Vienna Convention on the Law of Treaties, 23 May 1969 (in force 27 January 1980), 1155 UNTS 331, Article 31(1) [VCLT].
Donald M. McRae and D. John Goundrey, “Environmental Jurisdiction in Arctic Waters: The Extent of Article 234,” UBC Law Review 16:2 (1982): 197, at 221. See also Alan E. Boyle, “Marine Pollution Under the Law of the Sea Convention,” American Journal of International Law 79:2 (1985): 347, at 361–362.
Erik Franckx and Laura Boone, “Article 234,” in United Nations Convention on the Law of the Sea: A Commentary, ed., Alexander Proelss (Munich: C. H. Beck, 2017), 1566, at para 17.
Donat Pharand, “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development & International Law 38:1–2 (2007): 3, at 47.
Léonard Legault, “Protecting the Marine Environment,” in Canada and the New Internationalism, eds., John Holmes and John Kirton (Toronto: Canadian Institute of International Affairs, 1988), 99, at 107.
FM AMEMBASSY OTTAWA TO SECSTATE WASHDC 5404, “Negotiations with Canadians on Environmental Special Area for Arctic and Transit of International Straits,” 1975OTTAWA00158, 15 January 1975, (“Negotiations”), 3, https://aad.archives.gov/aad/createpdf?rid=119756&dt=2476&dl=1345; United States Department of State, Memorandum for the President, NSC-U/DM-109J, 28 April 1976, 2, https://www.cia.gov/readingroom/docs/CIA-RDP82S00697R000400170026-0.pdf.
Nordquist et al. (n 32), para 234.5(d) (p. 397).
Martin Tracy Lutz (reporter), “Legal Regimes of the Arctic,” American Society of International Law Proceedings 82 (1988): 315, 333–334.
Michael Byers and Suzanne Lalonde, “Who Controls the Northwest Passage?,” Vanderbilt Journal of Transnational Law 42:4 (2009): 1133, at 1182, consider the applicability of Article 234 to international straits “unclear.”
See McRae (n 18), p. 18; Pharand (68), pp. 46–47. Oxman’s affirmation (n 72) may also be interpreted in this sense.
FM SECSTATE WASHDC TO USDEL SECRETARY IMMEDIATE, “Arctic Pollution Article” 1976STATE108756, 5 May 1976, 2, https://aad.archives.gov/aad/createpdf?rid=263141&dt=2082&dl=1345. For an earlier cable reporting on US efforts to come to a “package agreement based on US support for liberal vessel-source pollution regime in ice-covered areas in return for Canadian support on unimpeded transit of straits,” see “Negotiations” (n 70), p. 2.
Donald McRae, “The Negotiation of Article 234,” in Politics of the Northwest Passage, ed., Franklin Griffiths (Montreal: McGill-Queen’s University Press, 1987), 98, at 109.
Cable on “Arctic Pollution Article” (n 75), p. 2.
Memorandum for the President (n 70), p. 4. See also cable on “Arctic Pollution Article” (n 75), p. 2.
See also Nordquist et al. (n 32), para 234.1 (p. 393); McRae (n 76), pp. 109–111.
Lajeunesse (n 36), p. 178 ff.
Id., p. 202 ff.
See Lasserre in this volume.
Id., in particular Figure 1.
Jonathan Andrews, David Babb and David G. Barber, “Climate Change and Sea Ice: Shipping in Hudson Bay, Hudson Strait, and Foxe Basin (1980–2016),” Elementa: Science of the Anthropocene 6:19 (2018), https://doi.org/10.1525/elementa.281.
Warwick F. Vincent and Derek Mueller, “Witnessing Ice Habitat Collapse in the Arctic,” Science 370:6520 (27 November 2020): 1031–1032, https://doi.org/10.1126/science.abe4491.
McRae and Goundrey (n 66), p. 216 ff. For the discussion on the material scope, see below.
NSIDC uses a 15 percent threshold, “meaning that if the data cell has greater than 15 percent ice concentration, the cell is labeled as ‘ice-covered’.” See National Snow and Ice Data Centre (NSIDC), “Why is Sea Ice Important?,” https://nsidc.org/learn/parts-cryosphere/sea-ice/quick-facts-about-sea-ice. For presence of ice to be recorded on Canadian ice charts, its concentration must be at least one tenth. See “Interpreting Ice Charts: Chapter 3,” Government of Canada, last modified 7 March 2016, https://www.canada.ca/en/environment-climate-change/services/ice-forecasts-observations/publications/interpreting-charts/chapter-3.html.
For the definition, see n 23.
Argument first made by Roman Dremliuga, “A Note on the Application of Article 234,” Ocean Development and International Law 48:2 (2017): 128–135; see also Viatcheslav Gavrilov, Roman Dremliuga and Rustambek Nurimbetov, “Article 234 of the 1982 United Nations Convention on the Law of the Sea and Reduction of Ice Cover in the Arctic Ocean,” Marine Policy 106 (2019): 103518, https://doi.org/10.1016/j.marpol.2019.103518; Kristin Bartenstein, Roman Dremliuga and Natalia Prisekina, “Regulation of Arctic Shipping in Canada and Russia,” Arctic Review on Law and Politics 13 (2022): 1–23, https://doi.org/10.23865/arctic.v13.3229.
McRae (n 79), pp. 107–110.
Nordquist et al. (n 32), para 234.5(e) (p. 397).
James Kraska, “Governance of Ice-Covered Areas: Rule Construction in the Arctic Ocean,” Ocean Development and International Law 45:3 (2014): 260, at 266.
Memorandum for the President (n 70), p. 3.
McRae (n 79), pp. 109–110.
For the latter, see Nordquist et al. (n 32), para 234.1 (p. 393).
Dirk Notz and Julienne Stroeve, “The Trajectory Towards a Seasonally Ice-Free Arctic Ocean,” Current Climate Change Reports 4 (2018): 407–416, https://doi.org/10.1007/s40641-018-0113-2.
Paul Tepes, Peter Nienow and Noel Gourmelen, “Accelerating Ice Mass Loss Across Arctic Russia in Response to Atmospheric Warming, Sea Ice Decline, and Atlantification of the Eurasian Arctic Shelf Seas,” Journal of Geophysical Research: Earth Surface 126 (2021), e2021JF006068. https://doi.org/10.1029/2021JF006068.
See McRae (n 79), pp. 107–110.
Bartenstein et al. (n 89), p. 348.
See Vincent et al. in this volume.
Protection of the Arctic Marine Environment (PAME), Underwater Noise in the Arctic: A State of Knowledge Report (Akureyri: PAME Secretariat, 2019, https://oaarchive.arctic-council.org/bitstream/handle/11374/2394/Underwater%20noise%20report.pdf?sequence=1&isAllowed=y.
Donna D.W. Hauser, Kristin L. Laidre and Harry L. Stern, “Vulnerability of Arctic Marine Mammals to Vessel Traffic in the Increasingly Ice-free Northwest Passage and Northern Sea Route,” Proceedings of the National Academy of Sciences 115:29 (July 2018): 7617–7622; https://doi.org/10.1073/pnas.1803543115.
For trends in the so-called Last Ice Area, see Robert Newton et al., “Defining the “Ice Shed” of the Arctic Ocean’s Last Ice Area and Its Future Evolution,” (2021) 9 Earth’s Future, https://doi.org/10.1029/2021EF001988.
Conservation of Arctic Flora and Fauna (CAFF) and PAME, Arctic Invasive Alien Species: Strategy and Action Plan 2017 (Akureyri, 2017), https://www.caff.is/strategies-series/415-arctic-invasive-alien-species-strategy-and-action-plan/download. Based on the Strategy, CAFF and PAME collaborate on a project on Marine Invasive Alien Species in Arctic Waters (https://www.pame.is/projects-new/arctic-shipping/pame-shipping-highlights/459-marine-invasive-alien-species-in-arctic-waters).
Tommy T.B. Koh, “A Constitution for the Oceans,” adapted from Statements by the President on 6 and 11 December 1982 at the final session of UNCLOS III at Montego Bay, https://www.un.org/Depts/los/convention_agreements/texts/koh_english.pdf.
McRae and Goundrey (n 66), pp. 216–217.
Canada, Draft Articles for a Comprehensive Marine Pollution Convention, 9 March 1973, A/AC.138/SC.III/L.28.
Greece et al., Possible alternative text of Article 8, 18 October 1973, IMCO Doc. MP/CONF /C.1/WP.36.
ISNT, A/CONF.62/WP.8/PartIII, Article 20(5).
RSNT, A/CONF.62/WP.8/Rev.1/PartIII, Article 43.
McRae and Goundrey (n 66), p. 216.
Polar Code (n 8), Preamble, first recital.
McRae and Goundrey (n 66), p. 217.
Polar Code (n 8), Part II-A.
P.K. Quinn et al., The Impact of Black Carbon on Arctic Climate, AMAP Technical Report No. 4 (Oslo: Arctic Monitoring and Assessment Programme (AMAP), 2011), in particular 48f, https://www.amap.no/documents/download/977/inline.
The same broad understanding also underpins MARPOL (n 53), Article 2, according to which “discharge, in relation to harmful substances or effluents containing such substances, means any release howsoever caused from a ship and includes any escape, disposal, spilling, leaking, pumping, emitting or emptying.”
See Canada, Report of the Correspondence Group on Reduction of the Impact on the Arctic of Black Carbon Emissions from International Shipping, IMO Doc PPR 8/5, 18 December 2020.
See also “Joint Statement by Transport Canada and the U.S. Department of Transportation on the Nexus between Transportation and Climate Change,” Transport Canada, 25 February 2021, https://www.canada.ca/en/transport-canada/news/2021/02/joint-statement-by-transport-canada-and-the-us-department-of-transportation-on-the-nexus-between-transportation-and-climate-change.html.
Farrah T. Chan et al., “Climate Change Opens New Frontiers for Marine Species in the Arctic: Current Trends and Future Invasion Risks,” Global Change Biology 25:1 (2019): 25–38, https://doi.org/10.1111/gcb.14469.
International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 13 February 2004, IMO Doc BWM/CONF/36 (16 February 2004) (in force 8 September 2017).
Guidelines for Ballast Water Exchange in the Antarctic Treaty Area, IMO Resolution MEPC.163(56), IMO Doc MEPC 56/23 (13 July 2007).
Polar Code (n 8), Part II-B, at p. 4.
Guidelines for the Control and Management of Ships’ Biofouling to Minimize the Transfer of Invasive Aquatic Species, IMO Resolution MEPC.207(62), IMO Doc MEPC 62/24/Add.1 (15 July 2011), Annex 26; Sub-Committee on Pollution Prevention and Response, Report to the Maritime Environment Protection Committee, IMO Doc PPR 8/13 (16 April 2021), s 4.
Friends of the Earth International (FOEI), Vessel Biofouling and Bioinvasions in Arctic Waters, IMO Doc MEPC 73/INF.24 (17 August 2018).
PAME, Underwater Noise Pollution from Shipping in the Arctic (PAME, 2021), 8 ff, https://www.pame.is/document-library/pame-reports-new/pame-ministerial-deliverables/2021-12th-arctic-council-ministerial-meeting-reykjavik-iceland/787-underwater-noise-pollution-from-shipping-in-the-arctic/file.
Guidelines for the Reduction of Underwater Noise from Commercial Shipping to Address Adverse Impacts on Marine Life, IMO Doc MEPC.1/Circ.833 (7 April 2014); Secretariat, Outcome of MEPC 76 on the review of MEPC.1/Circ.833, IMO Doc SDC 8/14 (1 October 2021).
Polar Code (n 8), Part I-A, ch 11, 11.3(7) and Part I-B, 12.1, according to which “in the event that marine mammals are encountered, any existing best practices should be considered to minimize unnecessary disturbance.”
Polar Code (n 8), Part I-A, ch 2 and Part I-B, 3 and Appendix 2.
See n 106–113 and accompanying text.
Hauser, Laidre and Stern (n 102), p. 7619.
For instance, a seasonal area to be avoided was created by the IMO under SOLAS Chapter V in the Roseway Basin, in Canada’s EEZ off of Nova Scotia, to protect the North Atlantic right whale, IMO Doc MSC 83/28/Add.3 Annexe 25 (2 November 2007).
In the Gulf of St-Lawrence, Transport Canada has issued seasonal regulation imposing speed limits and areas to be avoided since 2018. See latest Interim Order for the Protection of North Atlantic Right Whales (Eubalaena glacialis) in the Gulf of St. Lawrence, 2022, 20 April 2022, 2022-04-30 Canada Gazette Part I, Vol. 156, No. 18
See Breanna Bishop et al., “How Icebreaking Governance Interacts with Inuit Rights and Livelihoods in Nunavut: A Policy Review,” Marine Policy 137 (2022): 104957, https://doi.org/10.1016/j.marpol.2022.104957.
The effect is comparatively small; see NSIDC, Are Icebreakers Changing the Climate?, 17 April 2012, https://nsidc.org/learn/ask-scientist/are-icebreakers-changing-climate.
Order Designating the Tuvaijuittuq Marine Protected Area, SOR/2019-282.
Id., Article 4(1).
Id., Article 3.
Id., Article 4(2)(a).
See Fisheries and Oceans Canada, “Report on the Designation of the Tuvaijuittuq Marine Protected Area,” Government of Canada, last modified 25 February 2021, https://www.dfo-mpo.gc.ca/oceans/publications/tuvaijuittuq/designation/index-eng.html.
Polar Code (n 8), Preamble, recital 5.
Augustìn Blanco-Bazàn, “Specific Regulations for Shipping and Environmental Protection in the Arctic: The Work of the international Maritime Organization,” International Journal of Marine and Coastal Law 24:2 (2009): 381, 383.
Franckx and Boone (n 67), para 14.
RSPPR (n 56), ss 26 and 6, schs V–VII.
Id., s 29.
Nordquist et al. (n 32), para 234.5(g) (p. 397).
CRC, c 356.
Oceans Act, SC 1996, c 31, in particular ss 4–21.
See id.
House of Commons, Debates (24 October 1969), 39.
This is in stark contrast to the Russian approach, see Bartenstein et al. (n 89), p. 349.
Canada, Bill-C3: An Act to Amend the Arctic Waters Pollution Prevention Act (Legislative Summary), 13 February 2009, 8, https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/40-2/c3-e.pdf.
Canada, Comments on Document MSC 88/11/2, IMO Doc MSC 88/11/3 (5 October 2010), in particular 5.1 in fine.
See also Whitbread v. Walley, [1990] 3 SCR 1273.
While Canada’s 2010 decision to make NORDREG mandatory sparked controversy within the IMO (see IMO, Report of the MSC on its 88th Session, IMO Doc MSC 88/26 (15 December 2010), para 11.28 ff.), NORDREG has since been effectively applied.
VCLT (n 65), Article 31(3)(c).
Polar Code (n 8), Preamble, recital 4.
Id., recital 5.
United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, ch 14.
Related to these corridors, see Dawson and Song, Doelle et al. and Lalonde and Bankes, all in this volume.
See McDorman (n 21), p. 75.