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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