The Arctic policy documents
The Arctic policy documents adopted by the various EU institutions over the past decade have never been particularly radical, as far as shipping is concerned.(1) The first document of this kind was the Commission’s Communication on the European Union and the Arctic Region COM(2008) 763 final, adopted in 2008, which has since been followed by:-- Council conclusions of 8 December 2009 on Arctic issues;-- European Parliament resolution of 20 January 2011 on a sustainable EU policy for the High North (2009/2214(INI)) (hereinafter the ‘2011 European Parliament Resolution’);-- Joint Communication from the European Commission and the High Representative of the European Union for Foreign Affairs and Security Policy, ‘Developing a European Union Policy towards the Arctic Region: progress since 2008 and next steps’ (JOIN(2012) 19 final);-- European Parliament resolution of 12 March 2014 on the EU strategy for the Arctic (2013/2595(RSP), hereinafter the ‘2014 European Parliament resolution’);-- Council conclusions of 12 May 2014 on developing a European Union policy towards the Arctic Region;-- Joint Communication of the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy ‘An Integrated European Union Policy for the Arctic’ (JOIN(2016) 21 final) of 27 April 2016 (hereinafter the ‘2016 Joint Communication’); and-- Council conclusions on the Arctic of 20 June 2016 endorsed the policies outlined in the Joint Communication.-- European Parliament resolution of 16 March 2017 on an integrated European Union policy for the Arctic (2016/2228(INI) In general, they have highlighted issues on which there is large political agreement and kept the discussion at a very general level, so as to avoid concrete issues of potential controversy. Instead, the documents have emphasised the more general benefits that an increased involvement by the EU in Arctic shipping could bring about, notably in terms of technical and economic tools.
The tendency to avoid controversies has strengthened over time. While the earlier policy documents - by all institutions - were more specific, both with respect to the policies and the measures they would like to see implemented for shipping, subsequent documents have gradually toned down any indications of a potential role for the EU as a driver of Arctic shipping initiatives. Substantive regulation is left to the global maritime community, notably the International Maritime Organization (IMO), and, in contrast to tensions between the IMO and the EU about the regulatory initiative on other key regulatory issues,(2) Starting from its 1993 ‘Common policy for safe seas’ (COM(93) 66 final), the Commission has emphasised the complementary role of EU legislation and its preparedness to resort to regional legislation should international rules be considered inadequate: “the Community needs to ensure that the IMO’s work develops in a way which will produce adequate solutions for ships sailing in its waters” (para. 61). Most recently on this matter, see the Commission white paper ‘Roadmap to a Single European Transport Area - Towards a competitive and resource efficient transport system’, COM(2011) 144 final and Communication ‘Strategic goals and recommendations for the EU’s maritime transport policy until 2018’ COM(2009) 8 final. the EU policy documents on the Arctic appear to be quite comfortable with the current global regulatory situation. With one small exception,(3) The only exception to this cautious stance has been the European Parliament, which has twice called for potential supplementary measures by the EU. Para 67 of its 2011 resolution specifically called for the EU to adopt supplementary port-state measures “with a view to imposing a strict regime limiting soot emissions and the use and carriage of heavy fuel oil” if the international negotiations at the IMO did not produce the desired results for the Arctic. While this element no longer featured in the Parliament’s next resolution of 2014, it reappeared in part in 2017. Para. 58 of the 2017 resolution “calls on the Commission, in the absence of adequate international measures, to put forward proposals on rules for vessels calling at EU ports subsequent to, or prior to, journeys through Arctic waters, with a view to prohibiting the use and carriage of HFO”. the documents include no reference to a complementary role for the EU, should the global maritime community fail to adopt certain key standards.
With respect to more general principles of the law of the sea, all three main EU institutions have highlighted “the importance of respecting international law principles, including the freedom of navigation and the right of innocent passage”.(4) 2014 Council conclusions (n 2), para 10. Similar statements were made in the Council Conclusions [I’ve capitalized “Conclusions here to match its use in footnote 5] of 8 December 2009 on Arctic issues, (n 2), para. 16; 2012 Joint Communication n 2 para. 17; and 2014 European Parliament Resolution n 2, para. 48. The European Parliament came closest to criticising the Arctic coastal states, when calling on “the states in the region to ensure that any current transport route - and those that may emerge in the future - are open to international shipping and to refrain from introducing any arbitrary unilateral obstacles, be they financial or administrative, that could hinder shipping in the Arctic, other than internationally agreed measures aimed at increasing security or protection of the environment” (Ibid., para. 50). This contrasts with the EU’s general maritime policy, which is distinctively port and coastal state-oriented. Moreover, the documents include no indication as to how those international law principles should be respected in the Arctic, or how the navigational and environmental interests should be balanced. Existing controversies about maritime delimitation and zones involved in Canadian and Russian waters along the main Arctic sea routes are not mentioned at all.
In terms of substantive standards, the Arctic policy documents generally emphasise the need to implement global rules, including the recently adopted Polar Code, as well as regulatory initiatives by the Arctic States, in particular the Arctic SAR and MOPPR Conventions.(5) 2014 Council Conclusions (n 2) para. 9. This aspect no longer features in the 2016 Conclusions n 2. EU initiatives in the region are limited to issues where the participation of the Union could provide benefits to the Arctic region as a whole. A particular emphasis has been placed on the monitoring capabilities developed by the EU and their potential usefulness for inducing compliance with existing (international) rules in the region.(6) NO TEXT FOR THIS FOOTNOTE? The role of the European Maritime Safety Agency (EMSA) has been specifically highlighted in this respect.(7) See 2014 Council Conclusions [see my comment above in footnote 4] (n 2) para. 9 and the 2014 European Parliament Resolution (n 2), para. 49. See also Joint Communication ‘International ocean governance: an agenda for the future of our oceans’ (JOIN(2016) 49 final (hereinafter the ‘Oceans’ Governance Communication’), at pp. 9-10.
The most recent Joint Communication for the Arctic, issued in April 2016, is remarkably free from topics that could generate controversy, both generally and in respect of the Union’s maritime policy. It merely states that the EU “should encourage full respect for the provisions of UNCLOS ... including the obligation to protect and preserve the marine environment” (p. 7) and encourages states to ratify the IMO’s 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (p. 8). Under the heading of sustainable development, the Communication only refers to research and development tasks. The EU should, for example, “contribute to enhance the safety of navigation in the Arctic through innovative technologies and the development of tools for the monitoring of ... the increasing maritime activities in the Arctic” (p. 12).(8) 2016 Joint Communication (n 2). Interestingly, the Communication in this context refers to research programmes designed to cope “with maritime security threats resulting from the opening of the North East passage”, section 2.5.
The only proposal for a regulatory initiative which is even remotely relevant for shipping is the promotion of biodiversity protection through the establishment of Marine Protected Areas (MPAs).(9) In ibid. at p. 7 it is states that the EU “should promote establishing marine protected areas in the Arctic, these areas being an important element in the effort to preserve biodiversity”. How these areas are to be established, by whom and on what jurisdictional basis, is not clarified, nor is their effect, if any, on both the shipping and navigational freedoms that the document also seeks to ensure.
More recently still, the Commission and the High Representative for Foreign Affairs and Security Policy adopted a more general policy document on oceans’ governance.(10) N 7. This covers oceans more generally and does not have a specific Arctic focus, although it is noted that the Arctic Ocean is “one of the most fragile sea regions on the planet” and that the Union, in line with its integrated Arctic policy, “should seek to ensure sustainable development in and around the region on the basis of international cooperation”.(11)Ibid., pp. 6-7. The passages appear under the heading ‘regional fisheries management and cooperation’ and do not seem intended to affect maritime transport. This document also supports the promotion of biodiversity protection through the establishment of Arctic MPAs.
The Ocean Governance Communication includes more concrete policy statements than the corresponding documents on the Arctic policy. It foresees an important role for the Union in contributing to international oceans policy, and it includes 14 different actions which must be pursued to strengthen the international ocean governance framework. These actions will form an integral part of the EU’s response to the UN 2030 Agenda for Sustainable Development, with UNCLOS being its “main legal driver”.(12)Ibid., p. 5 The UN’s 2030 Agenda for Sustainable Development identified conservation and sustainable use of oceans as one of the 17 Sustainable Development Goals (see e.g. at www.un.org/sustainabledevelopment/oceans/)
The institutions consider that the EU “is well placed to shape international ocean governance on the basis of its experience in developing a sustainable approach to ocean management, notably through its environment policy (in particular its Marine Strategy Framework Directive), integrated maritime policy (in particular its Maritime Spatial Planning Directive), reformed common fisheries policy, action against illegal, unregulated and unreported (IUU) fishing and its maritime transport policy”.(13)Ibid., p. 4. However, despite this starting point, maritime transport policy features very sparingly in the document. Even though one of the 14 actions listed is to “ensure the safety and security of the oceans”, the ship-based activities focus almost exclusively on fisheries and maritime security. Commercial shipping is hardly addressed at all.
In summary, Arctic shipping has clearly not been at the centre of the EU’s attention, either in the different institutions’ Arctic policy documents or in its recent first general policy document on oceans’ governance. On the contrary, the documents are very cautious on regulatory issues, whether at global or regional level, though some emphasis is given to other forms of steering mechanisms, such as making technology or research findings available.(14) For example, it has been emphasised by various EU institutions in their Arctic policy documents that the EU already holds a great deal of data on ship standards and movements. In addition to port state control and other compliance data on ships, a series of databases on ship movements are being hosted by the EMSA which acquire data by satellites, AIS and other means, which could prove useful not only for monitoring and surveillance of shipping activities in the Arctic, but also for assisting in rescue operations etc. EMSA also manages a small fleet of oil recovery vessels that can be brought in to assist with pollution emergencies in EU waters. Extending their potential scope of activity to the Arctic Ocean has not been proposed, but the collaboration between EMSA and the Arctic Council, notably through the Emergency Prevention, Preparedness and Response (EPPR) Working Group, which was established under the Arctic Environmental Protection Strategy (AEPS), is an indication of close collaboration between the two institutions in this field. As a result, very little in the documents indicates a desire by the EU, or at least by the Commission and the Council, to take an active role in steering Arctic shipping policy, and the level of ambition-or at least specificity - appears to be decreasing. Instead, the EU views itself mainly as a facilitator with a set of useful tools that could benefit the Arctic states and the region as a whole, should the key stakeholders (which do not appear to include the EU itself) wish to make use of them.