The Arctic - Navigational Issues under International Law of the Sea

The Yearbook of Polar Law, Vol 2, 2010, pp. 7-114

The chapter analyses the practice of the Arctic rim States, Canada, Russia, the U.S. Svalbard/Norway Greenland /Denmark and Iceland implementing the United Nations Law of the Sea Convention Article 234 and concludes general customary international law is governing in the Arctic exclusive economic zones (EEZ's). There is no divergent practice of other States and no persistent objection to such practice. The International Maritime Organisation's (IMO) Polar Code fits like a 'hand in a glove' with this regime since particularly the large States have long legislated, enforced and acknowledged navigational provisions in their domestic Arctic regimes, but it increases the geographic scope due to its application of 10% ice coverage. If fully implemented into the Arctic rim States' regimes it can be said to be forming customary international law regardless of being mandatory or not under the IMO. The IMO environmental and safety treaties governing globally and enjoying over 90% ratification of States with world tonnage are also maintained to form customary international law. Enforcement for the Arctic is through port State jurisdiction where entrance is made mandatory through notification and authorisation of navigation from the above custom and would also govern the Arctic high seas due to encirclement by the EEZ's that have to be transversed. It is concluded if the Arctic EEZ's and high seas are declared a MARPOL 73/78 Annex I (oil), Annex II (noxious liquid substances) and V (garbage) special area with future measures governing emissions under Annex VI, and the crucial areas involving the interests of indigenous peoples, contingency planning, search and rescue, and services are addressed, the Arctic is solidly on track towards governance with regards to navigation in the 21st century.