Coastal states
Alongside flag states’ jurisdiction, UNCLOS offers certain prescriptive and enforcement powers to coastal states, in the form of jurisdictional rights (rather than obligations) over foreign ships that transit their waters. The balance between the coastal and maritime interests differs in respect of each maritime zone, depending on the geographical proximity of the zone in question to the coastal state.
In brief, the general legal possibility for a coastal state to impose its own national rules on foreign ships navigating in its coastal waters is mainly limited to ships within its own internal waters.(1) UNCLOS Article 2(1). Beyond that, national rules are permissible only to the extent that they do not relate to the design, construction, equipment and manning of ships within the territorial sea, and even such rules must not have the practical effect of denying or impairing foreign ships’ right of innocent passage.(2) UNCLOS Article 24(1)(a). Beyond the territorial sea, unilateral coastal state legislation is essentially ruled out.(3) UNCLOS Article 211(5), (6). However, rules that give effect to “generally accepted international rules and standards”, in particular if they are established “through the competent international organization”, can be established by the coastal states in their EEZ, but not beyond that. In addition to these limitations, a range of other UNCLOS provisions limit the ability of states to take enforcement measures against ships that fail to comply with the rules while in transit through their coastal waters.(4) See e.g. Articles 220 and 24(1).
However, in the Arctic context an additional UNCLOS article specifically dedicated to ‘ice-covered waters’, Article 234, does admit a broader environmental prescriptive and enforcement jurisdiction for coastal states for environmental purposes.(5) Under Article 234, coastal states specifically “have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence”. Even if several of the conditions imposed by the article are unclear and subject to divergent views in legal literature,(6) See e.g. K. Bartenstein: ‘The “Arctic Exception” in the Law of the Sea Convention: A contribution to safer Navigation in the Northwest Passage’ (2011) 42(1-2) Ocean Development & International Law (2011) 22-52 at p. 24 and A. Chircop: ‘The Growth of International Shipping in the Arctic: Is a regulatory Review Timely?’ (2009) 24(2) IJMLC 355-380 at p. 372. See also E.J. Molenaar ‘Options for Regional Regulation of Merchant Shipping Outside IMO, with Particular Reference to the Arctic Region’ (2014) 45(3) Ocean Development & International Law 272-298 at p. 276, T. Henriksen, ‘Protecting Polar Environments: Coherency in Regulating Arctic Shipping’, in R. Rayfuse (ed.) Research Handbook on International Marine Environmental Law (Edgar Elgar Publishing, Cheltenham, 2016) 363-384 at pp. 380-381.it is clear that the article - by removing the reference to international rules - significantly strengthens the jurisdiction of coastal states in the Arctic. So far, Canada and Russia have made use of this jurisdiction by adopting special legislation for Arctic shipping,(7) Arctic Waters Pollution Prevention Act, R.S.C. 1985, c. A-12 (AWPPA), available at http://laws-lois.justice.gc.ca/eng/acts/A-12/. The Russian Federal Laws from 2012 and 2013 related to Governmental regulation of merchant shipping in the water area of the Northern Sea Route are available at www.arctic-lio.com/nsr_legislation. and Denmark has indicated its preparedness to use the jurisdiction provided under Article 234 for Greenland’s coastal waters.(8) See e.g Kingdom of Denmark Strategy for the Arctic 2011-2020 http://naalakkersuisut.gl/~/media/Nanoq/Images/Udenrigsdirektoratet/100295_Arktis_Rapport_UK_210x270_Final_Web.pdf, at p. 18.
In the absence of Arctic coastlines of the EU member states,(9) Greenland belongs to EU member state Denmark, but has exited from the EU and is hence not subject to EU laws; rather, it is associated with the Union as one of the overseas countries and territories (OCTs) with a specific Partnership Agreement governing the mutual relationships. See Council Decision 2014/137/EU on relations between the European Union on the one hand, and Greenland and the Kingdom of Denmark on the other [2014] OJ L76/1. the option of using this article is limited to the EEA member states, Norway and Iceland. However, neither country can rely on it for climatic reasons, in view of the article’s condition that the waters concerned are ice-covered for most of the year, a condition which is not met by Iceland or (mainland) Norway.(10) The exercise of jurisdiction based on Article 234 by Norway in the Svalbard Archipelago would be justified from a climate point of view, but would have to be subject to the 1920 Treaty concerning the Archipelago of Spitsbergen.