Open Seas, Open Season: The Impending Challenge of Regulating Circumpolar Shipping in the High Arctic
Canadian Bar Association, 2011-2012 National Environmental, Energy and Natural Resources Law Essay Contest
Posted: 11 Nov 2012
Date Written: May 2012
Buttressed by compelling scientific research on unprecedented polar ice decline, there will be a strong business case for the economic viability of a circumpolar trading route within the next 40 years. Given the environmental deterioration associated with other high traffic sea routes, and the distinct problem this pollution would pose in the high Arctic given its semi-enclosed fragile ecosystem, this paper provides an overview of the capabilities and limitations for forestalling environmental damage inherent in the existing regulatory framework. Particular reference is made to the jurisdictional complexities of the circumpolar route’s transnational and, at times, purely international character. Ultimately, a multifaceted legal framework is required for successful Arctic environmental governance. Such a framework would include coordination at the global, regional and national levels. Regionally, the Arctic Council and its sub components provide a standing collaborative forum that serves as a catalyst for action at the national and global levels. National governments should enhance and harmonize their enforcement presence, surveillance and Arctic environmental policies. Globally, an emerging mandatory international regulatory regime is needed that includes not only the anticipated Polar Code for shipping and other regulatory requirements for Flag States, but also one that makes full use of Port State controls along the lines of the Paris MOU. A balanced legal approach would also identify those particularly delicate areas that shipping must be made to transit under stricter standards .or avoid altogether. Ideally, this regime will continue to evolve over time, but inherent within the existing legal architecture can be found the twin pillars for successful enforcement. First, the enforcement of soft law conventions like MARPOL 73/78 and the London Dumping Convention can be accomplished by harnessing the authority of Port and Flag States. Second, the encirclement of the Arctic Ocean by pollution enforcement zones of the Arctic states means that hard law national regulatory measures are available at several points along the circumpolar route. The enforcement of environmental standards cannot achieve full efficacy absent systematic surveillance and monitoring within the Arctic Ocean. For this reason, this paper proposes the coordination of surveillance and national vessel traffic management systems in the Arctic for violation detection and reporting.
Keywords: climate change, shipping, arctic, pollution, circumpolar route
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