Captain J. Ashley Roach, JAGC, USN (retired)
Office of the Legal Adviser
U.S. Department of State (retired)
Senior Visiting Scholar and Global Associate
Centre for International Law NUS Singapore
Arctic Deeply Roundtable:
Asia and the Arctic – Where Things Stand
The Tower Club 16 September 2015
No Race for the Riches Notwithstanding what you read, hear or see, there is no
“race for the riches” in the Arctic. It’s cooperation not competition. No danger of conflict. The planting of the Russian flag on the North Pole had no
effect of ownership of the seabed
Arctic Ocean activities are governed by the 1982 Law of the Sea Convention, just as are all the other world’s oceans
The Arctic States are following the international laws and regulations Extended Continental Shelf claims > 200 nm before CLCS
Polar Code adopted by IMO
Arctic SAR Agreement and Oil Pollution Agreement
No territorial disputes except for Hans Island
Most maritime boundaries agreed2
Polar Areas Arctic: an ocean surrounded by five circumpolar
States with indigenous peoples
Antarctica: continent surrounded by the Southern
Ocean with no indigenous population
Arctic Ocean: governed by the Law of the Sea
Convention and implementing instruments
Antarctica: governed by the Antarctic Treaty and
related treaties and instruments (Antarctic Treaty
System)
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Basic Arctic Geography Smallest of the world’s oceans
~3% of world’s oceans by area
~1% by volume
The geologic and legal continental shelf occupies a much higher proportion of the Arctic Ocean than any other ocean
5 States abut the Arctic Ocean (“the Arctic 5”)
Russia, United States, Canada, Denmark (Greenland), Norway (Svalbard)
3 more States have territory above Arctic Circle
Finland, Iceland, Sweden
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Maritime Zones Arctic is just like any other ocean
Internal waters, territorial sea, EEZ, high seas
Continental shelf, deep sea bed (“The Area”)
Each of the Arctic 5 is in the process of defining the
outer limit of its continental shelf (ECS) > 200 nm
Norway has received CLCS approval
Claims by Russia and Denmark (Greenland) are before
CLCS
Canada is reviewing its North Pole claim
USA is preparing its claim
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Legal Boundaries of the Oceans and Airspace
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Navigation Same navigation rights and duties as in other ocean
areas
Innocent passage in territorial sea
Transit passage in, over and under straits used for
international navigation
High seas freedoms of navigation and overflight in
the exclusive economic zone (EEZ)
Freedom of the seas in the high seas areas of the
Arctic Ocean
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IBRU Revised Arctic Map (Polar Projection) August 2015
https://www.dur.ac.uk/ibru/resources/arctic/
Shipping in Arctic Arctic Ocean will not be totally ice-free
Northern Sea Route can now be traversed during the
summer months with or w/o Russian icebreaker
escorts (est. August 18-early October 2015)
Northwest Passage open during September, first
time since 2013
Presence of ice unpredictable, so just-in-time
shipping not likely to use Arctic between Pacific and
Europe
Inadequacies of Arctic infrastructure
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Applicable International Law Law of the Sea Convention, Parts II-VII & art. 234
IMO treaties: SOLAS, MARPOL, COLREGS, STCW, London Convention, SAR Convention, OPRC
Environmental treaties
Arctic-specific treaties: SAR Agreement, Pollution Prevention (not in force), Polar Code (EIF 1 January 2017)
Soft law:
IMO guidelines
Arctic Council guidelines on Arctic oil and gas (2009)
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The Ilulissat DeclarationIn response to call for a new Arctic treaty:
On 28 May 2008, the Arctic Five Ministers (Canada, Denmark, Greenland, Norway, Russia and USA) met at Ilulissat, Greenland, and adopted the Ilulissat Declaration:
“An extensive legal framework applies to the Arctic Ocean”
“The law of the sea provides for important rights and obligations ...”
“We see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean”
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Arctic SAR Agreement Objective to strengthen cooperation and coordination in
air and maritime SAR operations in Arctic
8 Parties: Canada, Denmark, Finland, Iceland, Norway,
Russia, Sweden, USA (the “Arctic 8”)
Based on IMO SAR Convention, Annex 12 to ICAO
(Chicago) Convention, and article 98 of LOS Convention
Signed Nuuk Greenland May 12, 2011
Entered into force January 19, 2013
http://www.arctic-council.org/index.php/en/document-
archive/category/20-main-documents-from-
nuuk?download=73:arctic-search-and-rescue-agreement-english
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Arctic Pollution Agreement Agreement on Cooperation on Marine Oil Pollution
Preparedness and Response in the Arctic, with appendices
Signed Kiruna, Sweden May 15, 2013
Enters into force 30 days after Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the USA all have consented to be bound
http://www.arctic-council.org/index.php/en/document-archive/category/425-main-documents-from-kiruna-ministerial-meeting?download=1942:agreement-on-cooperation-on-marine-oil-pollution-preparedness-and-response-in-the-arctic-final-formatted-version
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Cooperation on Arctic
Marine Oil Pollution Based on LOS Convention and 1990 International
Convention on Oil Pollution Preparedness, Response and Co-operation
Objective to strengthen cooperation, coordination and mutual assistance among the Parties on oil pollution preparedness and response in the Arctic in order to protect the marine environment from pollution by oil
Appendices: competent national authorities, national POCs, authorities empowered to request/decide on assistance, detailed operational guidelines
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Arctic Fisheries
February 14, 2014, the Arctic 5 temporarily banned commercial fishing by their fishers in the high seas of the Arctic Ocean until regulatory system is established, http://www.oceansnorth.org/resources/chairmans-statement-meeting-arctic-fisheries-nuuk-greenland-february-2014
US prohibited fishing in US Arctic EEZ in 2009, https://alaskafisheries.noaa.gov/sustainablefisheries/arctic/
Arctic 5 Declaration 16 June 2015 to work for binding instrument with fishing nations likely modeled on Bering Sea Donut Hole Agreement of 1994https://www.regjeringen.no/globalassets/departementene/ud/vedlegg/folkerett/declaration-on-arctic-fisheries-16-july-2015.pdf
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Arctic Donut Hole
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Polar Code Following adoption in 2009 of the Guidelines for
Ships Operating in Polar Waters, IMO agreed to develop a mandatory Code for ships operating in polar waters
Various subcommittees progressed the work 2010-2014
MSC & MEPC adopted Polar Code in 2014 & 2015
Mandatory code will enter into force 1 January 2017 by tacit amendments to SOLAS and MARPOL annexes
Supplements existing IMO requirements
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Polar Code Improvements First edition enters into force 1 January 2017
With experience expect Code to be amended in
future
Expand to other ships (fishing vessels and < 500 gt)
Add environmental protection measures beyond
pollution prevention
Fix some treaty law issues
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Manning & Training Standards of Training and Certification of Seafarers
(STCW) Convention and Code
Being amended to add specific training and
certification requirements for crews of ships
operating in polar waters
Expected to enter into force 1 January 2018
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Potential Problems Incompatibility of Canadian and Russian regulations for
Northwest Passage and Northern Sea Route with international law, national vs international shipping
Inadequate infrastructure
SAR
Oil pollution response
Port waste reception facilities
Nautical charts
Communications and weather forecasting
Insurance uncertainties
Restrictions on marine scientific research in EEZ
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Thank you for your attention
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