Flag states
The main responsibility for ensuring the safety and environmental performance of ships, irrespective of the area concerned, lies with the ship’s flag state. UNCLOS imposes a number of minimum criteria on flag states’ legislation, by reference to the “generally accepted” international rules and standards.(1) UNCLOS, Articles 94(5) and 211(2). For example, UNCLOS requires flag states to adopt such measures regarding the construction, equipment and seaworthiness of ships as are necessary to ensure safety at sea.(2) UNCLOS Article 94(3). Equally, under the IMO conventions, the agreed international standards, which apply irrespective of where a ship navigates, normally represent minimum standards for flag states. From an international law point of view, it is accordingly uncontroversial to complement or exceed the international (IMO) requirements, by imposing requirements that apply to ships flying the flag of EU/EEA member states when operating in the Arctic.
In practice, the effect of EU-based flag state requirements could be significant. By tonnage, roughly a fifth of the world’s fleet flies the flag of an EU/EEA member state,(3) See e.g. www.ecsa.eu/images/files/STAT_ECSA_2013_4.pdf. though a somewhat smaller proportion appears to apply to ships operating in the Arctic.(4) 29 out of the 207 transits of the Northern Sea Route in 2011-2015 were made by ships flagged in an EU/EEA member state. See www.arctic-lio.com/nsr transits. However, as already noted above, stringent flag state rules run the risk of causing reflagging of ships outside the EU, which would defeat the purpose of the rules and generate a number of additional concerns. The limits on how far the EU (or any individual state) may go in imposing additional requirements for its own ships operating in the Arctic are not therefore legal in nature, but rather formed by the practical consequences and risks to which demanding flag state rules may give rise.