1. Introduction
The navigation of Arctic waters has always been challenging and involved severe risks. This has been clearly illustrated by large-scale maritime disasters, such as the notorious sinking of the Titanic and the running aground of the Exxon Valdez. Both disasters have shown the enormous consequences in terms of loss of human life and environmental damage if things go wrong in the harsh conditions of the Arctic. In recent decades, climate change has improved conditions for maritime navigation and exploitation of natural resources in the Arctic and has consequently led to increased sea-based activity in the area.
The new opportunities for navigating the Arctic have also allowed passenger ships, especially cruise ships with a large number of passengers, to gain access and provide unique tourist experiences that were previously impossible. The Arctic coastal states may have a commercial interest in increased tourism activities, but the coastal states will also share certain responsibilities, such as the need to establish a system of preparedness to deal with situations if things go wrong. Due to the complex conditions in the Arctic, including low water temperatures and harsh weather conditions, there are a number of specific challenges connected to the management of potential disasters. Those challenges would include, for example, how to evacuate a large cruise ship that is carrying elderly passengers after it has collided with an iceberg by Greenland’s partly uninhabited east coast.(1) See The Barents Observer, Arctic cruise ship boom: https://thebarentsobserver.com/en/travel/2018/05/arctic-cruise-ship-boom.
In March 2019, the cruise ship Viking Sky with about 1300 people aboard, suffered engine failure in harsh weather off the Norwegian coast. The Viking Sky lost power in rough waves and experienced a complete black-out and loss of propulsion. The master broadcast a mayday and instructed the crew to drop both anchors. The anchors did not hold, and the ship continued to drift towards the shore. The general alarm was activated and the passengers and crew began to muster. Although the three operational DGs could finally be restarted, the engineers had to continuously balance the electrical load manually. The vessel was manoeuvred towards open waters, still with both anchors lowered.(2) Accident Investigation Board Norway, Interim report 12 November 2019 on the investigation into loss of propulsion and near grounding of the Viking Star, 23 March 2019, page 5 ff.
On receipt of the mayday, the Southern Norway Joint Rescue Co-ordination Centre (JRCC) launched a major rescue operation. It has been reported that the mission completed 30 loads in 18 hours, airlifting almost 500 people, making it the largest public-private helicopter rescue in Norwegian history.(3) See Danmarks Radio, Et krydstogtskib er i vanskeligheder ud for Norges kyst: https://www.dr.dk/nyheder/udland/et-krydstogtskib-er-i-vanskeligheder-ud-norges-kyst. See also High North News, The Viking Sky incident: A warning about what to expect in the Arctic: https://www.highnorthnews.com/en/viking-sky-incident-warning-about-what-expect-arctic. Even if the incident resulted in no lost lives, it illustrated with sharp clarity some of the difficulties that can arise when a large cruise ship, carrying many passengers, experiences engine failure in complex conditions and has to be evacuated. A similar situation on Greenland’s large and partly uninhabited east coast would most likely be even more complex to deal with. Compared to Norway, and the specific region where the Viking Sky incident happened, the distances involved in Greenland would be significantly greater, and the area’s main capabilities and SAR resources are located on the west coast, with the capital Nuuk as the main centre and with the only full-scale hospital in Greenland.
One of the aims of the law of the sea in general is to ensure the safety of maritime navigation and the prevention of disasters, as well as the establishment of a system on land and at sea that is able to respond and save lives, and prevent damage to the marine environment, when things go wrong – this is what we call legal prophylaxis and preparedness in the context of this article. The legal framework for maritime navigation is regulated by a complex system of regulation and it can be argued that the United Nations Convention on the Law of the Sea (UNCLOS) is the framework regulation for the legal regime at sea.(4) UNCLOS is also often perceived as a constitution of the oceans, however, it remains unclear, what this actually means, see on this and more generally on UNCLOS as a system of regulation Siig/Feldtmann, UNCLOS as a system of regulation and connected methodology; some reflections on the issues at stake, 2018, MarIus., SIMPLY 502, p. 59 ff. However, UNCLOS does not contain an exhaustive regulation of all relevant aspects of the legal regime at sea and consequently not all provisions on navigation in Arctic waters and safety. UNCLOS is therefore supplemented by a number of more specific international laws and different forms of regulations, hereunder regulations under the IMO,(5) The IMO has adopted about 60 treaties, dealing with various issues related to shipping and navigation, see Henrik Ringbom, Arctic Shipping from an EU Perspective, 2018, MarIus., SIMPLY 502, p. 32. which, for example, set out specific requirements for ship design, safety procedures and equipment.(6) See for example SOLAS. Furthermore, the law of the sea obligates coastal states to establish effective SAR-systems.(7) See for example SAR-Convention, see further below 3.3. The legal framework for navigation in the Arctic waters is further supplemented by international regulations that apply specifically to navigation in polar waters.(8) See below 3.1. on the Polar Code. In addition to these international regulations, there are some legal requirements when sailing passenger ships in Greenlandic waters, including in particular, a reporting and pilotage obligation. This means that the legal framework for navigation with cruise ships in Greenlandic waters is fragmented and that the legal regime, which aims at preventing maritime disaster and securing an effective SAR system, is created by a number of regulations on different levels.(9) See on the regulation of navigation in arctic waters Henrik Ringbom, Arctic Shipping from an EU Perspective, 2018, MarIus., SIMPLY 502, p. 31 ff.
Therefore, the first aim of this article is to draw a picture of the complex regulatory framework which governs the navigation of cruise ships in Greenlandic waters and, more than anything, aiming at preventing disasters with the loss of lives. This means that the article’s starting point is an analysis of the legal framework for the safe navigation of cruise ships in Greenlandic waters. The perspective here is a public law perspective, dealing with international public law regulations and regional public law regulations specifically for polar waters and Greenlandic waters.
The second aim of the article is to link the legal prophylaxis with the issue of preparedness. This means that the article’s second part raises the question of how the legal prophylaxis is supported by the preparedness on land and at sea. If a cruise ship with over 2000 persons onboard gets into distress and needs to be evacuated in bad weather, can it be expected that the SAR system in and around Greenland would able to deal with the incident? This article will consider the organisation and capabilities of the Greenlandic SAR zone and examine some selected challenges involved in a large-scale SAR situation with a cruise ship in Greenlandic waters.