General
The brief review given above of the present applicability of EU rules in the Arctic already indicates that there is some scope for a regional regulatory body, such as the EU, to influence shipping outside its own region. In this chapter, that scope will be explored in greater detail. What, in other words, would be feasible for the EU to do if it decided to regulate Arctic shipping more actively? What are the jurisdictional opportunities and limitations for potential EU rules in this field? In other words, is the EU’s cautious policy on Arctic shipping dictated by legal necessity, or is there scope for a more assertive stance? The availability of legal options to the EU is necessary for knowing the limitations on the EU’s ability to act and - hence - for assessing its Arctic shipping policy in political terms.
The starting point for finding the answers to those questions is, as has been highlighted by the EU itself, the international law of the sea as codified in UNCLOS.(1) This approach features in all documents listed in note 1, as well as in the recent Ocean Governance Communication referred to above at notes 9-11. The five Arctic coastal states have similarly emphasised that the UNCLOS framework “provides a solid foundation for responsible management by the five coastal States and other users of this Ocean through national implementation and application of relevant provisions” and “therefore see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean”.(2) The 2008 “Ilulissat Declaration”, available at www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf.The Arctic coastal states’ emphasis on the adequacy of UNCLOS for Arctic governance had its background in the growing worldwide interest in Arctic resources, uncertainty over the precise maritime borders that apply in the Arctic and growing calls for a special treaty regime for the Arctic Ocean, similar to the one governing Antarctica.
This branch of international law is particularly stable for the moment, due to the high authority and broad formal acceptance of UNCLOS. The convention has 168 contracting parties, including the EU and all its member states. The same rights and obligations apply to the EU as to any other party to the convention; being an intergovernmental organization offers no jurisdictional advantages or disadvantages as compared to individual state parties.(3) UNCLOS, Annex IX. When acceding to UNCLOS, the EU provided a declaration on the division of competences on the basis of Annex IX (see Council Decision 98/392 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof 2008] OJ L 179/1). That declaration has not been updated and no longer reflects the internal division of competence between the EU and its member states.
The on-going negotiations to establish a new implementing agreement to UNCLOS dealing specifically with the protection of biodiversity beyond national jurisdiction may certainly be of relevance for the Arctic,(4) In its resolution 69/292 of 19 June 2015, the UN General Assembly decided to develop an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. According to para. 2 of the resolution, “negotiations shall address the topics identified in the package agreed in 2011, namely the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology”. For subsequent progress, see www.un.org/depts/los/biodiversity/prepcom. htmbut it is not expected to fundamentally alter the rights and obligations as laid down in UNCLOS.(5) The ‘package’ referred to in the previous note did not include issues related to navigation of commercial ships and alterations of the jurisdictional regime for navigation have not been on the agenda at the first two meetings of the Preparatory Committee and therefore seem unlikely to feature prominently in the potential future agreement.