3. The general law of the sea framework relating to navigating in Arctic waters
In 2008, the five Arctic Ocean coastal states signed the Ilulissat Declaration.(1)The Ilulissat Declaration, Arctic Ocean Conference Ilulissat, Greenland, 27 – 29 May 2008, s. 1–2. The five Arctic Ocean coastal states are the United States, Russia, Canada, Norway and The Kingdom of Denmark (of which Greenland is a part). In this declaration the so-called Arctic Five coastal states emphasised, among other things, that the existing law of the sea is sufficient to regulate the governance of the Arctic Ocean. One of the core concepts of the law of the sea, and UNCLOS in particular, is the freedom of navigation.(2) On the concept of freedom of navigation see Rüdiger Wolfrum, The Freedom of Navigation: Modern Challenges Seen from a Historical Perspective, in del Castillo (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea, 2015, p. 89 ff. This means that anyone may peacefully navigate all parts of the oceans and the principle of the freedom of navigation covers also parts of the oceans that can be hazardous to navigate because of ice and/ or weather conditions. States, including coastal states, cannot arbitrarily hinder or completely prohibit the navigation of ships in specific areas. On the other hand, safety is a central concept and consideration in the regime of the law of the sea. Therefore, there might be a completely legitimate basis for supplementary regulation to minimize risks. Such regulation can, for example, be aimed at regulating behaviour or stipulating specific technical requirements.(3) Yoshifumi Tanaka, Navigational rights and freedoms, in Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea, 2015, p. 536 ff.
In general, regulation of behaviour and technical regulation of commercial shipping is achieved through two different regulatory models: either through binding international regulations or through international guidelines and standards, which are developed by the shipping industry itself and by other parties.(4) Janusz Symonides, Problems and Controversies Concerning Freedom of navigation in the Arctic, in del Castillo (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea, 2015, p.230 f. As legal instruments, the aforementioned international guidelines and standards do not have a binding effect per se, and therefore cannot be used directly as tools for enforcement or legal sanctioning where there is a breach of the regulation at hand. This does not necessarily present a problem if they are obeyed, since these types of norms can be appropriate if agreement on a binding rule of law cannot be achieved within the international law regime.
The International Maritime Organization (IMO) is a central regulator when it comes to standards for regulating behaviour of a formal and informal nature. The IMO published two guidelines: ‘Guidelines for Ships Operating in Arctic Ice-covered Waters’(5) MSC/Circ. 1056(2002) & MEPC/Circ. 399 (2002).from 2002 and ‘Guidelines for Ships Operating in Polar Waters’(6) A 26/Res.1024 (2010).from 2010. They are both non-binding guidelines and thus in legal terms must be characterised as informal sources of law (soft law).(7) On the concept of soft law see for example, Harhoff (ed.) et al, Folkeret, 2017, p. 122 f. In regard to the need for mandatory rules for commercial activities in the Arctic, the IMO has subsequently issued the International Code for Ships Operating in Polar Waters.