Bearing The Law of The Arctic

Scientists and the petroleum industry no longer are the sole explorers of the Arctic. With the melting polar ice caps new routes are opening up to places only a privileged few could have had passage to in the past. Icebreakers were almost a necessity for the few scientific and cargo vessels that dared to gaze upon the ivory hills. Therefore, while unfortunate, arguably one of the few benefits brought on by climate change has been the opening of passages and is positive effect on trade and tourism. Regardless of purpose, whether it is for money, glory or furtherance of our understanding of human existence, this part of our world is a sight to behold.

Currently, in the most convenient sense summer is the time to visit this virgin land. However, time is a factor, as according to research by Prof Dirk Notz from the Max Plack Institute for meteorology, Arctic summers will soon no longer involve the fluffy white stuff. The new research gives about 20 years before there is no ice left for the Arctic summer months. All this brings up the question of: how do I see this land of wonder before there is no land left to visit? Which brings up even more questions, such as: how do I gain safe passage? Which countries allow for access? Who owns the arctic? Which laws govern the arctic? Which country should I start my journey in? Can I enter through international waters? Could I enter the Arctic with a private vessel?

Guidelines

Beyond the requirements of Safety-of-Life-at-Sea (SOLAS) and the environmental marine convention (MARPOL), that are recommendations on standards of maritime safety and pollution prevention, the safe navigation of the Arctic depends on the time of the year a passage is attempted. Different times require different classes of ships. International association of Classification Societies (IACS) identifies the requirements for a ship to be classified as Polar Class. However, there have been some difficulties with definitions of the classes. Beyond the hull strength and navigational requirements, there is quite a bit to consider: International Maritime Organization (IMO) guidelines could really help with creating a checklist.

Currently, private ships are following voluntary international guidelines. However, the IMO Polar Code has extensive recommendations that are not limited to charts: From performance standards to survival craft, the Polar Code has painstakingly specific recommendations. It also includes a chapter on voyage planning. The Polar Code does make presumptions on who would be entering the water, in the sense that the smallest vessel referred to in the code is a passenger ship. Therefore, a catamaran with a crew of 4 would not have a manual on board. So, technically, it was not written with a smaller private vessel in mind, but it is a great insight into what it takes to sail the icy sea.

In the past there has been some criticism of the IMO: The fact that it is only recommendations and not legally binding and hence unenforceable; the confusing classifications of polar ships does make things harder especially for non-commercial ships; and it does clash with international law. The clash does create some problems not just for large commercial vessels, but also for small private vessels: Canada had two very published events that involved large international cargo ships that one would assume to have captains with a greater understanding of and experience with The Law of the Sea than a captain of a private vessel.

One to rule them all

To confuse matters further, the Arctic does not have a single treaty or code or any legislation that governs all of it, instead there are many treaties involving 2 or more countries. The Arctic Council, created in 1996, is intergovernmental forum: Arctic Council was a step in the right direction to simplify things, but, for our concerns, it mostly deals with Protection of the Arctic Marine Environment (PAME). Additionally, there are 5 countries that claim ownership of waters in the Arctic. These are: Canada, Norway, United States, Denmark and Russia. Their claims end at the end of the Exclusive Economic Zone (EEZ)(370km) of each country. From there starts the international waters and rule of international law, unless there are no international waters, but another EEZ. We all know there isn’t an actual line in the water, so the fishermen and even the government vessels have mishaps when walking the line. There has been quite a bit of debate on which passageways to the Arctic are considered international waters.

Although, the United Nations Convention on the Law of the Sea (UNCLOS) needs to be kept in mind, both Canada and Russian Federation have pretty strict rules for navigation in their waters. In addition, United States never joined the UNCLOS. With so many countries involved, there will be some disputes: While countries like Russia and Canada claim parts of Arctic as national waters, European union and United States see them as international waters. Hence, when one wonders if there is any single code of law in the arctic, just remind yourself that each country in the arctic has its own regulations for governing marine pollution let alone all the other numerous areas.

Innocent Passage?

Innocent Passage as defined by UNCLOS means that as long as the vessel does not affect the peace, order or security of the coastal state, it should not need permission to enter another state’s waters. This means that you should have some idea of the laws governing those coastal states seas and should not assume anything. This is a problem: Northwest Passage to Arctic is considered national waters by Canada, but considered international waters by United States and EU; Northeast Passage to the Arctic is Russian waters, available to icebreakers for 4 months of the year; Beaufort Sea is passed the Chukchi Sea, it is partially disputed between Canada and United states and the waters around Hans Island are disputed between Canada and Denmark.

Ever since the border expansion of United States at the end of World War 2 – which was adopted by every country that has a claim in the Arctic- there have been way more than a handful of international tête-à-têtes, mostly concerning large vessels: One thing leads to another and coast guard gets involved, then its an international stand-of.

With all this in mind there are alternative routes: with the Transpolar Sea Route the simplest legal option as it solely relies on the international waters to access the Arctic. However, currently, the only vessels that can take this route are icebreakers. It is theorised that thanks to climate change by 2030 there will be no need for an icebreaker-strength hull to take this route. There is a similar problem involving the Arctic Bridge as it is only accessible only 4 months a year, but as the ice melts, it will allow for greater access.

If you plan a passage into these icy waters it is a harsh place with unique dangers that will test your will and skill. An endeavour, only a few of the brave should be taking. The dread of knowing exactly where you are in the world, but not knowing which country you are in is a rare experience. However, someone who set their minds on going to the Arctic, isn’t going to be deterred by this possible experience, but just might be delighted by the idea. With all this said, for a non-commercial private vessel, access through a single country to the Arctic, even avoiding the international waters, just might be the safest bet. In addition to all the planning once a route is considered, it would be helpful and recommended to discuss your voyage plans with a solicitor that has experience with Maritime Law and International Law.

Superyacht / Icebreaker

Compared to the number of ships at sea, there are only a few ships that can navigate the ice filled waters and even fewer of these are privately owned. There are several icebreakers from 60s to the 90s that have been privately purchased and upgraded to a level that they can be called a Superyacht. James packer’s Arctic P is one such example: Built in 1969, it was used for many purposes, including rescues and exploration missions. It has entered the Antarctic more than once: The last time being in 2014 when the ship and crew set a new record. Nevertheless, not everyone wants a ship that has been around since the 60s: Since 2015, there have been quite a few Superyachts that can be honoured with the classification of Polar Class: One such example is the SeaXplorer luxury yacht: Built in accordance with the Polar Code, state of the art, this Superyacht was made to go anywhere, including the most rare sights in the Arctic and the Antarctic.

Domain of the daring

If you are serious in a passage to the polar regions it is suggested that a good staring place for research about the sea-worthiness of your vessel in reference to the polar conditions is the IMO, with enough resources online to allow for an educated decision as to whether you make this passage with your existing vessel or an alternate vessel. Although,

Although, the guidelines are recommendations, it would be foolish to ignore them. And once again, it would be helpful to discuss your voyage plans with a solicitor.

Image: copyright (c)2016 Andrew Shiva