Conclusion
International law offers more jurisdictional opportunities for the EU to regulate shipping in the Arctic than has so far materialised in existing legislation or envisaged in recent EU policy documents. In an Arctic context, there are no signs of jurisdictional challenges by the EU of the kind that have been commonplace in its ‘normal’ shipping legislation, usually following major pollution accidents.
Possibilities exist for targeting Arctic shipping, even without a change of regulation, notably in the field of implementing and enforcing the international standards in EU ports. This option generates significant potential, not least since the global rules for Arctic navigation have recently been strengthened through the adoption of the Polar Code. Moreover, the solid legal basis of the EU’s port state control regime allows EU member states acting collectively to implement very powerful enforcement measures against ships which fail to comply with the rules. Violations of international pollution rules that have taken place in the Arctic can similarly be enforced by port states on the basis of the unusually broad UNCLOS Article 218, but in this case, close participation by the (Arctic) coastal state concerned is a precondition for its successful implementation.
Requirements that are more independent from the international rules require a different legal justification. However, even such rules could be adopted for the Arctic, the jurisdictional connection being that ships that operate in the Arctic in the future will often either fly the flag of an EU/ EEA member state or travel to or from an EU/EEA port. In the former case, the limits of the jurisdiction are purely political, while the precise jurisdictional limits of how far the port state(s) can go in this area are relatively unclear.