Concluding remarks on the EU and Arctic shipping
The EU’s relationship to the Arctic is often problematic, as is illustrated by a number of other current articles on this topic. The relationship involves many types of political issues at different levels, and there is often a mismatch between the policy priorities of the Arctic countries and the role that the EU sees for itself in the region. As a relatively new player on the Arctic policy scene, without a policy tradition to lean back on or a direct geographical link that would justify its seat at the negotiation table, the EU has struggled to find its position in international Arctic cooperation.
Internally, too, the coordination of Arctic issues within the EU is complicated by the fact that ‘Arctic issues’ cut across a series of EU policy sectors (trade, energy, environmental protection, fisheries, shipping, security etc.) which are guided by very different principles, competences and traditions, and, hence, present variable preparedness for elaborating specific Arctic dimensions of the EU policies. In addition, in the absence of ‘hard’ legislation in the field, different EU institutions have their own policy ambitions which will not always match and may also result in confused messages as to what the EU’s Arctic policy should be.
Equally, the study of the EU Arctic policy for a single relatively well-established sector like shipping, reveals a number of competing interests and policy ambivalences.
On the one hand the EU’s maritime safety and environmental policy to date has been distinctively coastal in nature, clearly emphasising environmental and coastal concerns over shipping interests and navigational rights. In view of this and of the general emphasis of sustainability and environmental values of the Arctic in the policy documents, one might expect that the inclination of the EU would be to place Arctic shipping under a particularly heavy regulatory burden. This has not been the case, and the review of jurisdictional options and limitations above illustrates that the absence of an Arctic dimension to the EU’s shipping regulation cannot be explained solely by the Union’s relative geographical remoteness from the Arctic. Even in the absence of an Arctic coastline, the EU has legal possibilities for regulating Arctic shipping, should it wish to do so.
On the other hand, it might be considered that the EU’s caution in respect of Arctic shipping has to do with its navigational interests in the area. Europe’s economic interests in Arctic shipping are significant, both due to its focus on Arctic resources and the benefits provided by shorter shipping routes. From this perspective, the Union’s interests could be expected, apart from ensuring that all shipping operations that take place in the region are safe and environmentally sustainable, to be on ensuring the navigational concerns and passage rights of ships and on achieving general legal certainty for shipping operations in Arctic waters.
So far, however, the EU has also not taken an active stance on issues relating to Arctic navigation. It has not, for example, adopted a view on key issues of maritime delimitation, which are critical for determining the scope of the navigational rights, in both of the principal navigational routes in the Arctic, i.e. the ‘Northern Sea Route’ along the Russian coastline and the North-West Passage in Northern Canada. There are still legal uncertainties as to which maritime zones are involved in both routes, as both coastal states claim sovereignty over parts of their Arctic waters based on historical title.(1) The Canadian system of straight baselines around the Arctic islands was established in 1985 and effectively causes large parts of the Northwest Passage to lie within Canadian internal waters, where Canada has full sovereignty. Similarly, Russia has established straight baselines to enclose some of the Russian Arctic straits that form part of the NSR and that would otherwise form part of the territorial sea. See e.g. R. D. Brubaker, ‘Straits in the Russian Arctic’, (2001) 32(3) Ocean Development & International Law 263-287. See also the laws referred to in n 60.
Despite the contested nature of these Arctic maritime claims, the EU has not taken a firm view on either of them.(2) The Canadian straight baseline claim is contested by many parties, including the US and several EU member states who lodged diplomatic protests when Canada established the baselines, regarding them as inconsistent with international law and rejecting Canada’s claim that historical title could provide an adequate justification for them. See e.g. Ted L. McDorman, Salt Water Neighbors, International Ocean Law Relations Between the United States and Canada, (Oxford University Press, Oxford 2009) at pp. 236-244 and Molenaar (n 59) p. 275. See also J. A. Roach and R. W. Smith, United States Responses to Excessive Maritime Claims (Brill Nijhoff, Leiden/Boston 2012, 3rd ed.) at p. 112, which includes an excerpt from a communication by several European Community member states to Canada dated 9 July 1986, in which the EC member states conclude that they “cannot ... in general acknowledge the legality of these baselines”. Nor has it made a pronouncement on the regulatory reach of Article 234, which is equally relevant for understanding the extent of Arctic coastal states’ jurisdictional rights,(3) The only recent international discussion on the reach of Article 234 in relation to Arctic Shipping was a debate at the IMO’s Maritime Safety Committee in 2010 on the legality of Canada’s mandatory ‘Northern Canada Vessel Traffic Services Zone Regulations’ (NORDREG). The debate centred on whether or not Canada was obliged to seek IMO approval before making NORDEG mandatory. Before this debate, which was ultimately inconclusive, certain EU member states had issued Notes Verbales to Canada. The European Commission, however, declined to do so, reportedly due to a lack of certainty as to whether Canada’s action warranted a diplomatic protest and because of potential broader implications for the EU’s Arctic policy. See Molenaar (n 59) p. 278 or on the relationship between that article and the regime for transit passage through straits used for international navigation under UNCLOS Part III, Section 2. The latter question would be relevant if the Canadian and Russian straight baseline claims were held to be invalid and key parts of the Arctic sea routes were hence considered to be international straits through the Canadian and Russian territorial seas.(4) While it seems plausible to argue, as Molenaar has done (n. 59, p. 275), that the regime for ice-covered waters constitutes lex specialis over the straits regime, states with large navigational interests in those areas have sometimes taken an opposite approach. See Roach and Smith (n 91) at pp. 318-320, 478-479 and 494. See also the position paper on Arctic shipping issued by the International Chamber of Shipping (ICS) in 2014: “ICS believes that the UNCLOS regime of transit passage for straits used for international navigation (as codified in Part III of UNCLOS) takes precedence over the rights of coastal States under Article 234”. Available at www.ics-shipping.org/ docs/default-source/resources/policy-tools/ics-position-paper-on-arctic-shipping.pdf. However, the paper provides no further justification for this belief.
It is possible, of course, that the absence of an active Arctic shipping policy by the EU is due to the consideration that there is no need for a regional approach in this field and that many of the key matters are better and more efficiently regulated at global level. Indeed, global measures adopted by the IMO or another competent international organisation would no doubt score higher than EU rules in terms of both coverage and political legitimacy. Indeed, many of the issues referred to in the policy documents (such as securing passage rights and navigational freedoms) even require global measures to have effect.
However, by failing to set out its Arctic priorities in a concrete manner, the EU also reduces its chances of making an impact at global level. One of the key strengths of the EU lies in its capacity to exert pressure on organisations to implement their rules in a harmonised manner, and to act on its own if required to avoid results that are unacceptable from the point of view of its own policy objectives. It is at international negotiations at the IMO or, even more so, in UN-based negotiations on jurisdictional rules, such as the on-going negotiations for the BBNJ Agreement, that the EU has greatest possibility for influencing international shipping laws and policies.
In view of this, the limited substantive direction in the EU’s shipping policy for the Arctic is unfortunate. The most recent Arctic policy documents issued by various EU institutions include no reference to regulatory initiatives or to substantive targets or ambitions, either at regional or global level. This not only contrasts with the EU’s own vision - as set out in the policy documents - of its role in the Arctic and general ocean governance,(5) See text at note 12 above. See also ibid. at p. 5: “Action by the EU and its Member States needs to be more ‘joined-up’ across external and internal policies. Their combined weight will significantly increase the potential for positive change. The EU should ensure coherent action between its internal and external policies in accordance with its commitment to enhance policy coherence for sustainable development.”. but also makes it more difficult to make a substantive impact in the relevant international fora. The failure to indicate its policy ambitions or priorities for Arctic shipping - and the absence of any reference to its preparedness to use its own regulatory instruments for this purpose - hence represent a missed opportunity for the EU to play a key role in shaping the future of one of the Earth’s most unique and vulnerable regions.