MarIus

General

In light of the above, the principal option that remains available to the EU for regulating shipping in the Arctic would be in the port state capacity, which is also the jurisdictional mechanism preferred by the EU for regulating shipping more generally.(1) See Ringbom (n. 19) at chapter 5. Roughly one third of the ships making use of the transpolar routes today have their point of departure or arrival in the EU,(2) According to statistics provided by the NSR Information Office (www.arctic-lio.com/nsr_transits), 36 per cent of the transits that were not heading for Russia in 2011-2015 were destined for a European port. and it can be expected that if trans-Arctic traffic were to boom, one of the end ports would very often be an EU/EEA member state.

By contrast to the detailed regime for coastal states’ jurisdiction over ships, UNCLOS does not provide much guidance on the extent to which (port) states may impose requirements on foreign ships that visit their ports. While it is widely acknowledged that ships have no general right of access to ports and that the port state may accordingly impose conditions on access,(3) See e.g. UNCLOS Articles 25(2) and 211(3). the more precise limitations as to how port states may exercise their jurisdiction are not clear. The question is particularly unsettled with respect to a port state’s jurisdiction over matters that take place beyond its own maritime zones.(4) See e.g. Ringbom n 44, R. Churchill, ‘Port State Jurisdiction Relating to the Safety of Shipping and Pollution from Ships - What Degree of Extraterritoriality?’ (2016) 31(3) International Journal of Marine and Coastal Law (IJMCL) 442-469.

Options

Using port state jurisdiction as a basis for the EU to regulate Arctic shipping offers several possibilities. Even without any change of legislation, it is feasible to target Arctic shipping through special attention to port state control, such as through ‘concentrated inspection campaigns’, for ships coming from or heading towards Arctic waters. More permanent targeting arrangements that raise inspection priorities for ships operating in the Arctic would probably necessitate a change to the EU’s PSC Directive,(5) N 36. but even such measures would not be problematic in terms of international law. The strengthening of the PSC at EU-level could be carried out in close cooperation with the Arctic coastal states, as all of them participate in, or collaborate closely with, the Paris MOU,(6) Paris Memorandum of Understanding on Port State Control, 1982, latest amendment from 27 May 2016. See www.parismou.org. The text of the MOU does not include a geographical scope of coverage, but operates with the (undefined) terms ‘region of the memorandum’ or ‘Paris MOU region’. Under section 9.2, the MOU is open to participation for maritime authorities of “a European coastal State and a coastal State of the North Atlantic basin from North America to Europe”. Maritime authorities of all Arctic states except the US are already signatories to the Paris MOU, and there is close cooperation with the US Coast Guard. There are thus no immediate legal hurdles for extending the application of the regime to the Arctic region. which is very closely calibrated with the EU’s PSC legislation.

The PSC Directive provides an administrative tool to enhance maritime safety and environmental protection, but port states could go further by imposing judicial penalties for violations of the international rules in the Arctic. For pollution discharge violations, this could also be done without further regulatory change, as there is a specific legal basis for such extra-territorial jurisdiction in UNCLOS. Article 218 permits port states to institute proceedings in respect of violations of international pollution rules (i.e. the MARPOL standards), even if there is no link between the spill and the state in question. This possibility has already been implemented in Directive 2005/35,(7) Directive 2005/35 on ship-source pollution and on the introduction of penalties for infringements [2005] OJ L 255/11. as far as oil and noxious liquid substances are concerned, and could easily be expanded to cover other forms of discharges regulated by MARPOL, such as garbage and sewage. While this Directive extends to the high seas, it does not include discharges made in other states’ coastal waters. This is a crucial omission in an Arctic context, given that both sea routes largely run through Canadian or Russian coastal waters. However, on the basis of UNCLOS’ article 218(2), such discharges could also be subject to proceedings in a port state within the EU, if so requested by the coastal state(s) concerned or by the ship’s flag state. A more practical concern relates to the collection of information and evidence of unlawful spills in remote locations. Existing satellite-based remote detection systems, such as EMSA’s ‘CleanSeaNet’ system,(8) See www.emsa.europa.eu/csn-menu.html are optimised for oil discharges only and even those are difficult to detect in icy conditions.(9) Hånninen & Sassi, ‘Acute Oil Spills in Arctic Waters - Oil Combating in Ice’ Study, VTT, 2010, available at www.uscg.mil/iccopr/files/Acute_Oil_Spills_in_Arctic_Waters_11JAN2010.pdf, at pp. 17-19.

The examples given above concern the implementation and enforcement of international rules in EU ports. It has already been noted that shipping is heavily regulated at international level and that a further strengthening of the standards has recently been agreed through the adoption of the Polar Code. In view of this, and of the likelihood that a significant share of Arctic traffic in the future will have an EU/EEA port as a point of departure or arrival, such measures may be expected to be quite effective for ensuring that high standards are met by the ships that operate in the Arctic.

Nonetheless, the EU might also wish to consider implementing less widely accepted or even unilaterally imposed rules for Arctic shipping. One possibility, which has been used by the EU in the past as a port state requirement, is to require the implementation of international rules that have been adopted, but not yet widely ratified, by ships visiting EU ports.(10) See notes 24 and 25 above. In an Arctic context, the 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments could be a case in point.(11) See also N. Liu ‘The European Union’s Potential Contribution to Enhanced Governance of Arctic Shipping’ (2013) 73(4) Zeitschriftfur auslandisches offentliches Recht und Volkerrecht 705-733 at p. 727. It entered into force in September 2017, but at first only applies to flag states representing some 35% of the world’s tonnage. Within the EU, the Convention has only been ratified by less than one in three EU/EEA member states.(12) In December 2016, 10 out of 31 EU/EEA member states had ratified the convention. See www.imo.org/en/About/Conventions/StatusOfConventions/Pages/Default.aspx Requiring ships that operate in the Arctic and enter EU ports to have the necessary equipment on board to prevent the introduction of non-indigenous species through their ballast waters, could be one way of speeding up the implementation of this convention.

Another, more far-reaching, alternative would be to implement rules that have been adopted only in the form of recommendations at the international level. Here, too, past EU shipping regulation offers examples.(13) See e.g. Council Regulation 2978/94 on the implementation of IMO Resolution A.747(18) on the application of tonnage measurement of ballast spaces in segregated ballast oil tankers, OJ [1994] L319/1 and Directive 2001/96/EC of the European Parlia­ment and of the Council of 4 December 2001 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers OL [2002] L13/9.In an Arctic context, the Polar Code’s Part B includes several potential examples, including a ban on the carriage and use of heavy grades of oil in the Arctic,(14) But see also the Polar Code, n 17, Part II-B, section 1.1 recommending that ships apply its rules when operating in Arctic waters. See also Liu n 74 at pp. 714-15 and the 2009 Arctic Marine Shipping Assessment (AMSA), n 36 60, considering the prospect of banning the carriage of heavy grades of oil and of discharging other hazardous substances as potential future IMO measures to protect the Arctic environment. The 2009 AMSA and related follow-up work undertaken by the Arctic Council’s working group Protection of the Arctic Marine Environment (PAME) are available at www.pame.is/index.php/projects/arctic-marine-shipping/amsa. which has also been repeatedly mentioned as a potential EU measure by the European Parliament.(15) See note 3 above.

More controversially still, the EU could implement rules for Arctic shipping that have no counterparts at all at global level. A hypothetical example could be EU-based requirements for ships operating in the Arctic to have specific equipment on board to reduce emissions of soot and ‘black carbon’; requiring ships operating in the Arctic to have a special extended form of insurance to cover the greater risks; mandatory contributions to an EU-based emission trading system for reducing greenhouse gas emissions, etc. An example of an ‘operational’ requirement could be an EU-based ‘no go’ area for commercial ships in the high seas area of the Arctic, as a means of implementing the Arctic MPAs, as proposed by the recent ocean governance and Arctic policy documents.(16) See text at ns 9-11.

Legal limits - some considerations

The legal limits on how far the EU, as a group of port states, could go in requiring ships operating in the Arctic to comply with its own requirements are not clear. The overall assessment depends on a series of considerations, but generally speaking, a weaker link to international rules, or to the territorial interests of the EU itself, will normally also weaken the legal case for the EU’s regulatory jurisdiction. Some relevant considerations are mentioned below.

First, the substantive nature of the rule in question is relevant. In particular, whether a port state may legally assert jurisdiction depends at least in part on whether the rules in question relate to ‘static’ features of the ship or to questions of operation or behaviour.(17) See e.g. Churchill n 67, pp. 450 et seq. In the former case, e.g. ice-class or equipment requirements for ballast water treatment, it is easier to find a jurisdictional basis for the requirement, given that any violation of the requirement will ‘follow’ the ship and hence also occur within the port where the state’s jurisdiction is undisputed. Conversely, it is more difficult for a port state to assert jurisdiction in respect of (non-static) operations or behaviour that occur outside its coastal waters, where it has no prescriptive jurisdiction. Potential examples include an obligation to use certain equipment or procedures beyond the port state’s coastal waters, a zero discharge policy on oil discharges(18) See e.g. Canadian Arctic Shipping Pollution Prevention Regulations (ASPPR) C.R.C., c. 353, s. 29. Available at http://laws-lois.justice.gc.ca/eng/regulations/C.R.C.,_c_353/ and rules relating to ‘grey water’ discharges from ships in the Arctic.(19) This matter is not regulated in MARPOL, but the ASPPR (n 82), s. 28 prohibits the discharge of any waste, with the exception of untreated sewage, in the Arctic waters. Discharge rules without an international counterpart will not be covered by the jurisdiction provided to port states under UNCLOS article 218(1). Potential, though less certain, alternative bases for jurisdiction could be one of the accepted bases for extra-territorial jurisdiction under general international law or merely the requirement for a sufficient ‘substantive connection’ between the matter under regulation and the port state.(20) See in particular B. Marten ‘Port State Jurisdiction, International Conventions and Extraterritoriality: An Expansive Interpretation’ in H. Ringbom (ed.) Jurisdiction over Ships - Post-UNCLOS Developments in the Law of the Sea (Brill Nijhoff, Leiden/ Boston, 2015) p. 105.

Second, the choice of enforcement measures to make the requirement effective plays a role. For example, refusing a ship the right of access to a port (or other losses of entitlement to which the ship or its flag state has no specific right) must be presumed to require a less solid prescriptive basis than punitive enforcement measures, such as fines and other types of sanctions.(21) E.J. Molenaar, ‘Port State Jurisdiction: Toward Comprehensive, Mandatory and Global Coverage’ (2007) 38(1-2) Ocean Development & International Law 225-257 at p. 229. A measure’s legal basis may be easier to establish where the consequence of non-compliance is denial of (subsequent) access to the port state. Measures of this type are particularly effective in a regional context, such as in the EU, where the refusal could be jointly implemented by all EU/EEA states, thus extending the ban to all ports in the region. Moreover, coordinated implementation of port state jurisdiction among a larger group serves to avoid the risk of ‘ports of convenience’, whereby ship operators could evade the requirements by simply choosing another port of destination.

Third, other types of legal obligations may limit a state’s options to exercise port state jurisdiction against foreign ships. First, treaty obligations may impose such limitations. While this is not a common feature in the IMO conventions, other areas of international law, notably international trade law, may impose important limitations on port states’ freedom in this respect.(22) See Churchill n 67, pp. 450 et seq. See also A. Serdy, ‘The Shaky Foundations of the FAO Port State Measures Agreement: How Watertight Is the Legal Seal against Access for Foreign Fishing Vessels?’ (2016) 31(3) International Journal of Marine and Coastal Law (IJMCL) 422–441. Second, more general international law principles impose certain general reasonableness criteria, which may also serve as limitations. Port entry requirements may, for example, not be discriminatory or constitute an abuse of right by the port state.(23) UNCLOS Article 300. The measures must be adopted in good faith and must be proportional to their objectives. In this respect it has been suggested that the objective of a measure in itself should play a role in its legal justifiability, and that a measure that aims at protecting common values or resources should enjoy a stronger claim to legality.(24) See e.g. S. Kopela, ‘Port-State Jurisdiction, Extraterritoriality, and the Protection of Global Commons’, (2016) 47(2) Ocean Development & International Law 89-130 and C. Ryngaert & H. Ringbom ‘Introduction: Port State Jurisdiction: Challenges and Potential’, (2016) 31(3) International Journal of Marine and Coastal Law p. 379-374. Measures aimed at protecting the Arctic against the risks involved with shipping are likely to score highly in such an assessment. Also, measures that serve to implement standards with an international basis (e.g. in the form of non-binding measures, or international rules that have not yet entered into force) will be easier to justify than purely unilateral port state requirements.

In conclusion, port state measures, unlike coastal state requirements, are not constrained by precise standards or clear legal limitations. Generally speaking, port state requirements appear to work best - in a practical sense as well as in terms of legal justification - for ‘static’ requirements. Yet the lawfulness of any requirement will need to be assessed based on all the interests involved, including those of ship operators in the region and of the Arctic coastal states, depending on the design and effects of the individual requirement. Nevertheless, it is clear that port states have considerable latitude in implementing such requirements and hence that the EU also has some regulatory leeway when implementing port state requirements aimed at improving safety and protecting the environment in the Arctic, should it wish to do so.(25) Generally, see B. Marten, Port State Jurisdiction and the Regulation of International Merchant Shipping (Springer, Heidelberg 2014), Molenaar n 85 and Ringbom, n 19, section 5.1.