Source: http://www.ics-shipping.org
PIC SOURCE: http://ocean-noise.com
The International Chamber of Shipping (ICS), which
represents over 80% of the world merchant fleet, has issued a new position
paper on Arctic shipping.
As the Arctic becomes more accessible, ICS has set out
some key principles with regard to the future governance of Arctic waters.
Offshore support vessel activity is already significant,
while destination shipping is anticipated to grow as the extraction of energy
and raw materials is developed. Use of the
Northern Sea Route is also a reality for a small but increasing number of ships
in the summer months.
ICS therefore stresses the importance of Arctic nations
respecting the United Nations Convention on the Law of the Sea (UNCLOS) and
relevant IMO Conventions and Codes such as SOLAS and MARPOL.
ICS Director of External Relations, Mr Simon Bennett
explained: “As the volume of Arctic shipping gradually increases, there is a
growing awareness about the need for a high degree of care when ships navigate
Arctic waters. However, the proper forum
for addressing these concerns is the International Maritime Organization, which
is currently developing a Polar Code that is expected to be mandatory. It is most important that Arctic nations
avoid unilateral measures that might cut across IMO Conventions or the provisions
of UNCLOS.”
ICS stresses that individual coastal states should not
impose discriminatory treatment that might prejudice the rights of ships
registered with non-Arctic nations under international maritime law, such as
unilateral ship construction, design and equipment standards.
ICS also identifies some issues that require clarification
as Arctic waters become more accessible.
For example, ICS believes that the UNCLOS regime of ‘transit passage’
for straits used for international navigation takes precedence over the rights
of coastal states to enact unilateral measures against international shipping.
“Until recently this issue seemed rather academic, as did
the question of nations using straight baselines to determine their territorial
sea. But as remote Arctic sea routes become
accessible these issues are becoming more important.” said Mr Bennett.
Amongst the intended audience for the ICS paper are high
level policy makers in environment and foreign ministries who may not be
regularly engaged in shipping issues.
However, the paper also outlines ICS’s approach towards
the development of the IMO Polar Code, which is expected to be finalised next
year.
“The development of the Polar Code needs to be risk and
performance-based” said Mr Bennett. “For example, pending the future
development of unified requirements for the construction and operation of
‘ice-class’ ships, the Code should not arbitrarily require conformity with any
particular ‘ice-class’ standards to the exclusion of others that deliver
comparable performance.”
The paper also sets out ICS’s position with respect to
the development of infrastructure to support safety and environmental
protection, the need for full market access and freedom of navigation,
transparency with respect to national regulation and the need for reduced
bureaucracy and the setting of appropriate fees for services.
“If frequent and reliable international shipping services
are to be provided between Arctic ports and the rest of the world, or natural
resources in the region are to be developed in a manner that reconciles the
need for both environmental and economic sustainably, this will require the
provision of maritime services that are competitive and cost efficient” said Mr
Bennett.
POSITION PAPER ON ARCTIC SHIPPING
PURPOSE AND SCOPE
The International Chamber of Shipping (ICS) is the
principal international trade association for shipowners, representing all
sectors and trades and over 80% of the world merchant fleet. ICS membership
comprises national shipowners’ associations from 36 countries, including
nations located within and outside the Arctic Circle.
Reported changes to the world’s climate appear to be
increasing the accessibility of the Arctic to international shipping.1These changes, as well as new interest in
developing the Arctic’s natural resources, are likely to increase shipping
traffic navigating through the region.
As the volume of
Arctic shipping gradually increases, there is a growing awareness and concern
within the international community about the potential sensitivity of Arctic
ecosystems to the impact of such activity and the necessity for a high degree
of care when ships navigate Arctic waters. These concerns are fully acknowledged
and shared by international ship operators, as represented by ICS which is
totally committed to the protection of the environment and the prevention of
pollution.
The following position paper is therefore intended to
establish some key principles with respect to the governance of maritime
activity in the Arctic and the regulation of ships navigating Arctic waters.
INTRODUCTION
Arctic shipping has become a key issue of focus at the
United Nations International Maritime Organization (IMO). This includes the
current development by IMO Member States of a mandatory code to be complied
with by all ships operating in polar waters.
When finalised, it is anticipated that the International
Code of Safety for Ships Operating in Polar Waters (‘Polar Code’) will become
mandatory through amendments to the IMO Safety of Life at Sea Convention
(SOLAS) and the IMO Convention for the Prevention of Pollution from Ships
(MARPOL).2These IMO Conventions are
already widely ratified and enforced on a global basis.
Indications of thinner ice and longer ice free (northern)
summer periods have opened up the possibility of increased international
shipping activity:
• Increased offshore support vessel activity (supporting
offshore exploration and extraction of oil and gas);
• Increased destination transport, with ships moving raw
materials (and goods) from and between Arctic ports and the rest of the world;
• The beginnings of commercially viable intercontinental
Northern sea routes, connecting the Atlantic and Pacific Oceans via the
Northeast Passage/Northern Sea Route and, potentially in the future, via the
Northwest passage.
Offshore support vessel activity already represents a
significant form of shipping in the Arctic region, while destination transport
is anticipated to grow considerably in the next few years as new sources of raw
materials, such as iron ore, are developed.
Although the expected timeline for the opening up of
intercontinental sea routes is currently very unclear, and for the immediate
future their impact on traditional shipping routes should probably not be
overestimated, use of the Northern Sea Route is already a reality for a small
but increasing number of merchant ships during the northern summer months.
Independent of climate change, the development of new
technologies that make possible operations in remote regions with hostile sea
and weather conditions is stimulating an increased interest in Arctic shipping.
This is driven to a large extent by rising commodity prices and the search for
natural resources such as gas, oil, metal ores and minerals throughout the
Arctic region. As well as increasing the demand for shipping services that can
support the extraction of seemingly abundant natural resources, maritime trade
between Arctic destinations and the rest of the world is expected to increase
as a result of this new economic activity. The demand for maritime tourism in
the Arctic is also expected to grow, facilitated by increasing accessibility
and improvements to ship design and maritime safety.
PRINCIPLES
ICS and its member national shipowners’ associations
advocate the following principles with respect to the governance of maritime activity
in the Arctic and the regulation of ships navigating Arctic waters:
1. Formulation of a mandatory, uniform regulatory
framework concerning Arctic shipping to ensure maritime safety and
environmental protection
IMO is the appropriate forum for the development of
standards for vessels operating in the Arctic, as it has the necessary legal
and technical expertise to facilitate engagement by, and take into account the
interests of, all of the world’s maritime nations including flag States and
coastal States.
In order to ensure a workable and enforceable regulatory
approach that will deliver safe marine navigation and security, enable
commercially viable operations and optimise environmental protection, all
current national maritime regulatory regimes applicable to Arctic waters,
within the jurisdiction of States that are members of the Arctic Council,3should be harmonised in conformity with the
final IMO ‘Polar Code’, as well as all other relevant IMO Conventions and
Codes, consistent with the provisions of the United Nations Convention on the
Law of the Sea (UNCLOS). Arctic nations should only apply requirements to
foreign flag ships consistent with ‘generally accepted international rules and
standards’ (GAIRAS).
ICS believes that the development of a mandatory IMO
Polar Code needs to be undertaken in a manner that is genuinely risk-based, so
that requirements imposed on ships take full account of the hazards relevant to
the type of ship operation, the ship location and the season of operation.
Furthermore, the risk mitigation measures that are adopted into the Code should
be performance-based. For example, pending the future development by IMO of
unified international requirements for the construction and operation of ‘ice-class’
ships, the Code should not arbitrarily require conformity with any particular
‘ice-class’ standards that currently exist to the exclusion of other standards
that deliver comparable performance with respect to safety and environmental
protection.
The particular interest and engagement in maritime issues
exhibited by those nations that comprise the Arctic Council is welcome and
fully acknowledged. However, it is important that the Arctic Council or any
other nations or bodies with an interest in Arctic shipping refrain from calls
to develop alternative instruments or requirements that cut across or cause
conflict with regulations or guidance developed by IMO.
Any country, including Arctic nations, that has not yet
ratified UNCLOS is strongly encouraged to do so as soon as possible.
Regional Memorandums of Understanding on Port State
Control may also have a role in developing uniform procedures for the
inspection and enforcement of regulations that have been adopted by IMO within
the Arctic region, including the Polar Code.
2. Development of Arctic maritime infrastructure to
support safety and environmental protection
While the IMO Polar Code will provide the regulatory
framework, the infrastructure needed to ensure safety and environmental
protection in the Arctic must also be developed. This includes inter alia aids
to navigation, nautical charts, means of satellite communication, bunkering
facilities, port reception facilities for ship’s waste, pilotage in shallow
passages, possible ice-breaking assistance, as well as search and rescue
infrastructure developed for defined incident scenarios and the provision of
adequate ‘places of refuge’ should ships be in distress.
In particular, a commitment is required by IMO (and IHO)
Member States to conduct the necessary hydrographic surveys in order to bring
Arctic navigational charts up to a level acceptable to support safe navigation,
as well as systems to support the real-time acquisition, analysis and transfer
of meteorological, oceanographic, sea ice and iceberg data.
Serious challenges related to life-saving and oil spill
clean-up capability in remote or hostile waters or where sea ice potentially
presents an obstacle must be also addressed. In particular, in co-operation
with IMO, this requires increased co-ordination amongst Arctic nations to
promote the region’s Search and Rescue (SAR) capability.6
3. Full participation of shipping nations
Given the important implications for all IMO Member
States of current and future regulatory discussions, it is vital that all
maritime nations, in their capacity as flag States and coastal States, are
fully and actively involved in all decision making processes that impact on
Arctic shipping.
ICS believes that it is particularly important that
non-Arctic nations are fully included in any regulatory discussions affecting
Arctic shipping from the outset. The rights of coastal States located within
the Arctic (Canada, Denmark including Greenland, Norway, Russia, and the United
States) must be acknowledged. However, such rights must always be exercised in
a manner that remains consistent with UNCLOS and IMO Conventions.
Coastal States should not impose discriminatory treatment
or other measures upon ships registered with non-Arctic nations that might
prejudice the interests and rights of nations or ship operators under
international maritime law. Examples of potentially prejudicial measures
include: unilateral ship construction, design and equipment standards;
navigation requirements including mandatory navigation or ice-breaker service
fees; and the imposition of additional insurance requirements.
4. Full market access and freedom of navigation
Unilateral, national or regional regulations governing
ship safety, environmental protection and other shipping matters should be
avoided and they must not disadvantage ships registered with non-Arctic States.
This includes regulations and enforcement mechanisms that Arctic coastal States
might seek to introduce within ice-covered waters inside the 200 nautical mile
Exclusive Economic Zone (EEZ), which should be addressed internationally via
the regulatory framework provided by IMO.
ICS believes that the UNCLOS regime of transit passage
for straits used for international navigation (as codified in Part III of
UNCLOS) takes precedence over the rights of coastal States under Article 234.
Maintenance of this principle also has implications for other international
straits outside the Arctic that have vital strategic and political
significance.
Regulations governing market access should be consistent
with commitments made by governments at the World Trade Organization (WTO) and,
where relevant, with the Principles of Common Shipping Policy adopted by the
Organization for Economic Co-operation and Development (OECD) in 2000.
5. Need for legal clarity about status of Arctic
ICS suggests that the legal status of Arctic waters needs
to be clarified at the United Nations level.
In general, in all waters save ‘internal waters’, the
right of ‘innocent passage’ within the Exclusive Economic Zone (EEZ ), as
enshrined by UNCLOS, must always apply. However, clarification is needed about
the definition of internal waters, including the use of straight baselines with
respect to islands situated off a mainland, as Arctic sea routes become more
accessible.
The relationship between UNCLOS Article 234 and the
UNCLOS regime of transit passage for straits used for international navigation
also needs to be clarified, now that straits in the Arctic region are actually
starting to be used by international shipping.
The above notwithstanding, Article 234 of UNCLOS permits
coastal States to adopt and enforce non-discriminatory laws and regulations for
the prevention, reduction and control of marine pollution from vessels in
ice-covered areas within the limits of EEZ, where particularly severe climatic
conditions and “the presence of ice covering such areas for most of the year”
create obstructions, or where “exceptional hazards to navigation, and pollution
of the marine environment could cause major harm to or irreversible disturbance
of the ecological balance”.
However, ICS believes a debate is required as to what is
meant in UNCLOS by “most of the year” as Arctic waters become ice free for
longer periods. Questions need to be resolved about the rights of coastal
States to enforce unilateral laws and charges when Arctic waters are indeed
“ice free”, the definition of “ice free”, and the extent to which hazards to
navigation may be regarded as “exceptional” during ice free periods.
It is also vital that international ship operators have
clarity with respect to which nations or organisations are responsible for
ensuring the safety of maritime transport in Arctic waters. This applies
particularly to waters beyond the territorial sea.
The need for answers to political questions about the
extent of the continental shelf of Arctic nations is also of indirect concern
to shipping. So long as it remains unclear which nations are entitled to
develop natural resources in the Arctic, uncertainty about demand for shipping
services and the need to invest in supporting infrastructure will remain. The
right to navigate ships in the Arctic should not be treated as a bargaining
counter in disputes about the right to exploit natural resources.
6. Transparency of national regulations
As stated above, national regulations should be
consistent with UNCLOS, IMO Conventions and Codes, and the principle of
‘generally accepted international rules and standards’ (GAIRAS).
Wherever national rules apply to ship operations in
Arctic waters, they should be transparent and comprehensible. As well as being
made readily available to shipping companies and ships’ crews via the internet,
they should always be available in the English language.
7. Reducing bureaucracy and setting appropriate fees
for services
Consistent with coastal States’ rights and obligations
under UNCLOS, the development of Arctic shipping must take the commercial
requirements of ship operators into consideration. For example, national
requirements concerning long periods of advance notification prior to use of
some Arctic sea routes are often impractical and incompatible with the way in
which international shipping markets operate. In bulk shipping, moreover, the
destination ports frequently change during the course of a ship’s voyage.
While the environmental challenges associated with
operations in the Arctic are fully acknowledged, the especially high level of
fees for some ice-breaking and other navigational services also needs to be
examined if Arctic sea routes are to provide a commercially viable alternative
to the Suez Canal or trans-Pacific sea routes. Likewise, if frequent and
reliable international shipping services are to be provided between Arctic
ports and the rest of the world, or natural resources in the region are to be
developed in a manner that reconciles the need for both environmental and
economic sustainably, this will require the provision of maritime services that
are competitive and cost efficient.
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