Coastal states
EU maritime legislation does not usually address foreign ships that merely pass through member states’ waters without entering their ports. The main reasons are twofold. First, the law of the sea imposes quite strict limitations on the kind of rules that coastal states may adopt and enforce in their different coastal zones. Outside the territorial sea, it is essentially only those rules that have been adopted at international level which may then be adopted by member states, and even with those rules, there are very tight limitations on what kind of enforcement measures are permitted.(1) See in particular UNCLOS Articles 21, 211 and 220. Second, enforcing such rules at sea is complicated in practical terms, as it involves complex, costly and potentially dangerous actions at sea.
There are a few exceptions to the general absence of coastal state requirements at EU level. Three EU directives extend to ships that are merely passing through the waters of the member states.(2) VTMIS Directive (n 23), Articles 8, 13 and 17; Directive 2016/802 relating to a reduction in the sulphur content of certain liquid fuels (codification), [2016] OJ L 132/58, Article 6. The scope of Directive 2005/35 on ship-source pollution and on the introduction of penalties, including criminal penalties, for pollution offences [2005] OJ L 255/11 as amended, extends, under its Article 3(1) to violations that have taken place in the coastal waters of member states and on the high seas. The emphasis of all three lies in events taking place in the coastal zones of the member states, which means that their applicability in an Arctic context is limited to the coastal waters of the EEA member states Norway and Iceland.(3) All Arctic states implement a 200 nm EEZ, but this type of zone has not been established around the Svalbard Archipelago.That in turn presumes that the geographical applicability of the directives from an EEA perspective has been specifically acknowledged,(4) The Agreement on the European Economic Area, ([1994] OJ L 1/1, as amended) guarantees the main elements of the internal market throughout the area. For an EU act to apply in the EEA, the act needs to be EEA relevant (i.e. belong to the substantive and geographical scope of the EEA Agreement). These elements were recently challenged by EEA states in connection with Directive 2013/30/EU on safety of offshore oil and gas operations [2013] OJ L 178/66. See e.g. C. Cinelli, ‘Law of the Sea, The European Union Arctic Policy and Corporate Social Responsibility’, 30 A. Chircop et al. (eds.) Ocean Yearbook (Brill/Nijhoff, Leiden/Boston 2016) 245-254, at p.247 et seq. which does appear to be the case.(5) According to a Norwegian Government Report (White Paper), entitled ‘The EEA Agreement and Norway’s other agreements with the EU’, the EEA Agreement does not apply to the Norwegian EEZ or continental shelf, unless specifically extended to those areas “if Norway, after an assessment of a particular matter, decides to assume specific EEA obligations outside its territory” (p. 13). Several EU maritime instruments which extend beyond the territorial sea have been incorporated into the EEA Agreement and hence apply in these areas. More recent instruments outside maritime regulation have met some resistance, however. See e.g. the oil and gas directive referred to in the previous footnote and Directive 2008/56 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) [2008] L164/19 as referred to in the White Paper, Meld. St. 5 (2012-2013), at p. 15 (Available at www.regjeringen.no/en/dokumenter/meld.-st.-5-2012-2013/id704518/)
However, in normative terms, these requirements are not very demanding. The relevant requirements of the VTMIS Directive relate to ship reporting systems, ships’ routing systems and vessel traffic services, and are closely linked to the rules and guidelines adopted for such systems by the IMO.(6) VTMIS Directive (n 23), Articles 5, 7 and 8. The discharge standards of Directive 2005/35 and sulphur in fuel requirements of Directive 2016/804 are similarly closely modelled on IMO rules, notably Annexes I, II and VI of MARPOL. Moreover, the main obligations of the latter directive concern ‘Sulphur Emission Control Areas’, which currently cover the North Sea and the Baltic Sea, but do not extend to Arctic waters.
Interestingly, all three directives to some extent even extend beyond member states’ coastal waters, to the high seas. None of them, however, significantly affects rights and obligations in an Arctic context. First, the EU rules providing for sanctions for pollution violations specifically extend to violations in the high seas, but the main parts of the Arctic sea routes pass through the coastal waters of Russia or Canada. These rules have a specific foundation in UNCLOS, but since they are to be implemented exclusively by port state authorities, they will be discussed in the next section. Second, the sulphur in fuel directive only extends beyond the coastal states’ waters in an optional form, through a vague enforcement provision referring to enforcement measures “in compliance with international maritime law”.(7) Directive 2016/802 (n 29), Article 6(4). Third, Article 19 of the VTMIS directive indirectly obliges member states to take measures that are “necessary to ensure the safety of shipping ... and to protect the marine and coastal environment” following incidents or accidents, even if that were to involve areas beyond their coastal waters. This follows from the reference to “appropriate measures consistent with international law”, in combination with the well-established right of states to take intervention measures on the high seas.(8) As established in the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Damage and UNCLOS Article 221. On the other hand, this obligation includes significant flexibility for the coastal state and is in any case itself linked to hazards for the coastal states, and hence only applies to EU/EEA member states with an Arctic coastline, i.e. Norway and Iceland.