Introduction
The European Union (EU) has, to date, taken a cautious stance with respect to shipping in the Arctic. There is no EU shipping legislation specifically targeting or extending to the Arctic, and the policy documents on the Arctic, which have been adopted by various EU institutions in the past decade, have been quite restrained with respect to the policy that the EU wishes to implement in respect of maritime transport in the area. This is despite the significant policy and economic interests that the EU has in Arctic shipping. The EU is the principal destination for goods and natural resources from the Arctic region and is among the prime regions to profit from the Arctic sea routes, which could reduce the distance between Northern Europe and Asia by as much as half.(1) Generally on the EU’s economic interests in Arctic shipping, see A. Raspotnik and B. Rudloff, ‘The EU as a Shipping Actor in the Arctic’, Working Paper FG 2, 2012/Nr. 4, Stiftung Wissenschaft und Politik, Berlin, 2012. Available at www.swp-berlin.org/fileadmin/contents/products/arbeitspapiere/FG2 2012Nr4 rff raspotnik.pdf
The EU normally regulates shipping through the collective exercise by its member states of port state jurisdiction or - less commonly - coastal state jurisdiction. In other words, EU maritime safety and environmental legislation normally targets ships based on the region in which they operate, rather than on the basis of the ship’s flag. Transposing this to the Arctic involves obvious difficulties, as the EU does not have coastal (or port) states in the region. Geographical factors therefore place clear limitations on the EU’s possibilities for exercising influence over shipping in the Arctic, at least in a traditional manner.
However, the absence of a direct geographical link to the Arctic does not on its own justify the relative absence of an EU policy for Arctic shipping. First, there are a number of ways, other than regulation, in which the EU could exert influence, which might be at least as effective for achieving its policy goals. Second, even within the regulatory field, there may be options that have not yet been fully explored.
The focus of this article is on the regulatory relationship between the EU and the Arctic. Following a brief review of the recent Arctic policy documents from a shipping perspective, the following section assesses the applicability of the EU’s current maritime safety and environmental legislation to shipping activities in the Arctic. Since it is concluded that current EU shipping legislation does not make much of an impact in the Arctic, the following section explores the legal challenges standing in the way of a more active regulatory approach of the EU towards Arctic shipping. The jurisdictional limitations imposed by existing rights and duties in the law of the sea are reviewed, with a view to exploring to what extent there is legal scope for a more active role for the EU in this area. It is concluded that there is such scope, even if there is little to suggest that an EU-based regulatory approach for the Arctic is currently required. Yet, as is noted in the concluding section, the lack of a clear indication of the EU’s goals or ambitions for Arctic shipping limits the Union’s possibilities for playing a more active role in this area, both within and outside regulation, and both at regional level as well as globally.