3.2 Scope of UNCLOS Article 234: Interpretation
3.2.1 Due regard to navigation
Article 234 grants Arctic Coastal States a distinctive advantage by conferring upon them the authority to unilaterally establish and enforce more stringent environmental regulations than those prescribed by internationally recognised norms; however, this prerogative is contingent upon the fulfilment of specific conditions.(1) Alexander Vylegzhanin, Ivan Bunik, Ekaterina Torkunova, and Elena Kienko, “Navigation in the Northern Sea Route: Interaction of Russian and International Applicable Law,” The Polar Journal 10 (2) (2020): p. 294, accessed October 30, 2023, https://doi.org/10.1080/2154896x.2020.1844404. One of such conditions is to have “due regard to navigation”(2) UNCLOS, supra note 11, Article 234., which appears to be one of the few explicit limits on the power granted to the Coastal States. However, what exactly this limitation implies is unclear and entails different interpretations.(3) D. M. McRae, D. J. Goundrey, ”Environmental Jurisdiction in Arctic Waters: The Extent of Article 234,“ Univeristy of British Columbia Law Review 16, no. 2 (1982): pp. 220-222, accessed October 30, 2023, available on: Hein Online. The primary rationale for this is that Article 234 lacks reference to GAIRAS and IMO, which seems to undermine the crucial aspect of “checks and balances” in relation to Coastal State jurisdiction over navigation, among other matters.(4) UNCLOS, supra note 11, Article 234.
Interpreting the “due regard” notion literally- in good faith and according to its ordinary meaning(5) VCTL, supra note 22, Article 31(1)., Black’s Law Dictionary defines it as “just, proper, regular, lawful, sufficient, reasonable”.(6) Black’s Law Dictionary, available on: https://thelawdictionary.org/. Accessed October 25, 2023. Understanding the implications of the term "reasonable" and the associated requirements of “reasonableness” can be a challenging task. Nevertheless, it can be argued that it necessitates Coastal States effectively address the dual objectives of safeguarding navigational rights and freedoms as well as ensuring the preservation of the marine environment while carefully striking a suitable equilibrium between these two.(7) Jan Jakub Solski, “The ‘Due Regard’ of Article 234 of UNCLOS: Lessons from Regulating Innocent Passage in the Territorial Sea,” Ocean Development and International Law 52 (4) (2021): pp. 400-401, accessed October 29, 2023, https://doi.org/10.1080/00908320.2021.1991866. According to Bartenstein's perspective, measures implemented by Coastal States in accordance with Article 234 should be reasonable to the needs (common good) of international shipping.(8) Kristin Bartenstein, “The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?” Ocean Development and International Law 42 (1–2) (2011): pp. 41-42, accessed November 1, 2023, https://doi.org/10.1080/00908320.2011.542104.
Despite the lack of explicit clarification in Article 234 regarding the specific navigational regime it pertains to, whether it be internal waters, territorial waters, or EEZ, the prevailing consensus among legal scholars, including Jan Jakub Solski and Douglas Brubaker, is to interpret the phrase “due regard to navigation” as encompassing both the freedom of navigation protected in the EEZ and innocent passage protected in territorial seas.(9) Brubaker, supra note 20, pp. 55-57.Solski, supra note 102, pp. 403-404. (see the interpretation of the notion “within the EEZ” below).
Further support for the interpretation can be derived from the drafters' intentions during the formulation of Article 234 and the surrounding circumstances of its finalisation.(10) VCTL, supra note 22, Article 32. Notably, the “Memorandum to the President” dated 28 April 1976 holds significant relevance in this regard and clarifies that:
Freedom of navigation in the EEZ and innocent passage in the territorial sea would apply in the Arctic (…)(11) Department of State Washington. Law Of The Sea—Request For Instructions On An Article On Vessel Pollution Control In The Arctic (Secret Letter), p. 4, para. A. Available on: https://www.cia.gov/readingroom/docs/CIA-RDP82S00697R000400170026-0.pdf. Accessed November 2, 2023. and (...) due regard clause does not provide specific objective protection for navigational interests in the Arctic (...) so an understanding must be obtained from the Arctic nations that ”due regard to navigation” in fact will be applied in such a way as not to have the practical effect of impeding freedom of navigation.(12)Ibid., p. 4, para. F.
Regrettably, it remains uncertain if such comprehension was ever achieved. However, it is evident that the objective was to protect the rights and freedoms of navigation “incorporated” in Article 234, in full conformity with the general navigational provisions of UNCLOS, against random and excessive control exerted by Coastal States.
3.2.2 Within the limits of the EEZ
Article 234 incorporates a notion of “within the limits of the EEZ” that serves as a territorial scope of application of the Article. Firstly, in terms of literary interpretation(13) VCTL, supra note 22, Article 31(1)., the phrase “within a limit” can be seen as ascribing the conventional meaning of “to a certain or limited extent” and “only when talking about reasonable or normal situations”(14)Collins Dictionary, available on: https://www.collinsdictionary.com/dictionary/english/within-limits. Accessed October 25, 2023. , as defined by Collins dictionary. Furthermore, according to Black's Law Dictionary, the term “limit” is defined as the “prescribed boundary of scope, be it authority, power, privilege, or right.”(15) Black’s Law Dictionary, supra note 101. If the phrase “within the limits” is interpreted as meaning ” to a limited extent or conventionally prescribed boundary of the EEZ,” it can be stated that it pertains to the internal boundaries of the EEZ, excluding the territorial waters. This conclusion could be substantiated by examining the context of Article 55 of UNCLOS, which provides a clear definition of the EEZ as “a zone beyond and adjacent to the territorial sea.”(16) UNCLOS, supra note 11, Article 55. The theory of ”EEZ inner limits” is endorsed by various legal academics, including Goundrey and McRae, who argue that the scope of Article 234 is restricted to the EEZ and does not confer equal rights to Coastal States in the territorial waters.(17) McRae, supra note 98, pp. 219-223.
It is important to acknowledge that within the framework of UNCLOS, there is a lack of provisions that employ the phrase “within the limits” in a similar manner. Additionally, the terminology used to define the spatial extent of various provisions throughout UNCLOS is not entirely uniform. Considering the inherent qualities of ambiguity associated with the expression, it may be beneficial to consider additional methods of interpretation, such as examining the preparation work and the contextual factors surrounding UNCLOS finalisation.(18) VCTL, supra note 22, Article 32.
Even though the initial negotiations over Article 234 involving the USSR, US, and Canada throughout the 1970s and early 1980s, were conducted in a confidential manner(19) Brubaker, supra note 20, p. 51. , there are a few publicly accessible papers, such as the “Letter of Submittal to the US President” dated 23 September 1994, that might shed light on this matter. The letter provides endorsement for the theory of “EEZ outer limits,” asserting that:
Pursuant to this article (234), a State may enact and enforce non-discriminatory laws and regulations to protect such ice-covered areas that are within 200 miles of its baselines established in accordance with the Convention. (20) Senate. Message from the President of the US transmitting UNCLOS, p. 40. Available on: https://www.foreign.senate.gov/imo/media/doc/treaty_103-39.pdf. Accessed November 2, 2023.
This assertion is further corroborated by Oxman, who argues that the territorial application of Article 234 aligns with the territorial application of Article 66 which reads “(…) in all waters landward of the outer limits of its EEZ”.(21) Bernard H. Oxman, "Observations on Vessel Release under the United Nations Convention on the Law of the Sea," International Journal of Marine and Coastal Law 11, no. 2 (1996): pp. 204-205, accessed November 1, 2023, available on: Hein Online. He further elaborates that this provision lends support to the theory regarding the determination of the outer limits of the EEZ, as negotiations for Article 66 involved the same three delegations, namely the USSR, Canada, and the US, who presumably had similar intentions regarding the territorial scope as those expressed in Article 234.(22)Ibid.
Most relevant legal scholars, including Pharand and Brubaker, express confidence in the accuracy of this interpretation. They firmly believe that the language used in Article 234 is specifically aimed at confining its applicability to the outer limits of the EEZ, including territorial waters in the Article's scope.(23) Donat Pharand, “The Arctic Waters and the Northwest Passage: A Final Revisit,” Ocean Development and International Law 38 (1–2) (2007): pp. 47-48, accessed September 15, 2023, https://doi.org/10.1080/00908320601071314. Douglas R. Brubaker, “Regulation of Navigation and Vessel-Source Pollution in the Northern Sea Route: Article 234 and State Practice,” in Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention (Cambridge: Cambridge University Press, 2000), p. 227, accessed October 13, 2023, doi:10.1017/CBO9780511494635.012. This interpretation does not permit the deduction of the illogical conclusion that the jurisdiction of Coastal States in ice-covered regions is wider within the EEZ compared to the territorial waters.(24) Lilly Weidemann, “International Governance of the Arctic Marine Environment,” in International Governance of the Arctic Marine Environment (Cham: Springer International Publishing, 2014), p. 80, accessed September 30, 2023, https://doi-org.ezproxy.uio.no/10.1007/978-3-319-04471-2_3.