Most likely, your perception of the Arctic is wrong. Looking at the polar regions on a globe, we see the great expanses of whiteness, the eternal ice of the Arctic Ocean and the inland ice on Greenland and Antarctica. The ice on Greenland and Antarctic is melting rapidly and it is estimated that the Arctic Ocean will be largely ice-free later this century.1 Even the Tuvaijuittuq region, north of Canada and Greenland, also referred to as ‘the last ice area’,2 is now known to be under threat.3 Together with the degradation and pollution of the natural environment, due to global pollution and as a consequence of increased economic activities in the region, climate change remains the largest challenge for the Arctic. That the effects of climate change are already very visible in the Arctic has also led to a global interest in the Arctic and its governance.
International law is at the heart of Arctic governance and the most important tool for international cooperation in the circumpolar region, both through treaties and with the use of soft law. The Arctic has always been a place where cooperation was possible, indeed – due to the harsh reality of the climate and natural environment – necessary. On a few occasions, this was also visible during the Cold War, but since the final days of the Cold War, a new spirit of cooperation has emerged in the Arctic. Initiated by Mikhail Gorbachev’s 1987 speech in Murmansk when he referred to the Arctic as ‘a zone of peace’,4 this cooperation led to the adoption of the Arctic Environmental Protection Strategy (AEPS) in 1991 and the establishment of the Arctic Council (AC) in 1996. A number of multilateral international treaties have been created between the Arctic states that provide a legal fundament for cooperation in the region and aim to address particular challenges that are shared among the people who live there.
With the invasion of Ukraine by Russia on 24 February 2022, the scenario for Arctic governance as described above has been put under serious challenge. Russia currently holds the rotating chairmanship of the Arctic Council until 2023.5 The other member states of the Arctic Council have refused to participate in any meetings in Russia6 and the Arctic Council has paused all meetings,7 including of its sub-units. For the time being, the AC is in an enforced pause mode and it is unclear whether it will wake out of this coma. In early June, the seven other Arctic states announced that they would continue a limited form of cooperation within the framework of the AC on those items that do not involve the Russian Federation and that had been agreed by all eight member states of the AC during the meeting in Reykjavik,8 i.e., prior to Russia’s 2021–2023 chairmanship. Here we might already see the outlines of the future of Arctic governance, formally within the framework of the AC – but in practice without Russia. As the AC works on the basis of consensus, the absence of Russia may allow the seven other Arctic states (A7) to conclude existing projects that do not involve Russia, but the AC would be unable to make decisions without Russia. Given that there is no mechanism for the expulsion of a member state, a reset of international Arctic governance appears necessary, even if the future form of Arctic governance might very much resemble the experience between 1996 and 2022. This has been predicted before, under different labels, such as “Arctic Council 2.0”9 or “Nordic Plus”.10
In this text, it will be shown how international law that is made in the Arctic, based on this spirit of cooperation and taking into account the expertise of the people who live there, both scientific expertise and indigenous knowledge, contributes to reducing the risk of disasters in the Arctic, in particular in the context of disaster risks that are elevated due to direct and indirect effects of climate change.
2 Disaster Risks and Arctic Governance
2.1 Disaster Risks in the Changing Arctic
Climate change leads to new environmental realities across the circumpolar Arctic. Nowhere else on the planet are temperatures rising as fast as in the Arctic. This has practical consequences for the flora, fauna, and people of the region, both directly and indirectly. Among the direct consequences are those on the distribution of snow and ice and their effects on the natural environment, which in turn has consequences for the people who live in the Arctic.11 Among the indirect consequences are those that follow from activities that are now facilitated by climate change, such as extractive industries or an increase in Arctic shipping due to the reduction of sea ice cover. This leads to new risks and the possibility of unprecedented disasters in the region. In the following, we will focus on the risk of accidents at sea and maritime oil spills pars pro toto to show how international law made in the Arctic plays a role in reducing disaster risks in this context.
As the Arctic Ocean becomes ice-free, it is seen as a shortcut between continents but as the winter of 2021/2022 has shown, climate change does not guarantee easier travels in the region. One of the most obvious risks for disasters in the Arctic is oil spills by ships in the Arctic Ocean, which becomes more attractive for ship operations, be it as a shortcut between Europe and East Asia, when compared to traditional shipping routes, such as the Suez Canal route, or as a destination for cruise tourism. Ship operations are inherently dangerous but even more so in polar waters which see particular risks, such as the presence of sea ice and extreme climatic situations, which is why the International Maritime Organization (IMO) has spent considerable effort on the creation of rules for ship operations in these regions that have entered into force on 1 January 2017 in the form of the Polar Code. While the Polar Code addresses flag states of ships operating in polar waters, coastal states have a key role to play in protecting the marine environment.
The example of the risk of oil spills shall be used here to highlight the kind of risks that the Arctic region, including the people who live there and the already endangered wildlife, are experiencing today. Oil spills are also a concern for AC.12 Despite irreconcilable differences between the Russian Federation and the A7 over Russia’s genocidal war of aggression against Ukraine, which has severely impacted the AC, the Arctic states’ experience with the AC as the key forum for international cooperation in the Arctic will remain relevant. This is especially the case in the context of disaster risk reduction and the prevention of and reaction to oil spills at sea. Therefore, the readers will be introduced to general considerations concerning the international governance of the Arctic Ocean with regard to the flag state dimension of international ship operations in the context of the risk of pollution of the marine environment by ships in particular through oil spills,13 to which the environment of the Arctic Ocean is particularly sensitive.14
Marine environmental law on the national level is significantly influenced by international law15 and tackling vessel-source pollution requires legal action from both flag states and coastal states.16 While coastal states have the legal capacity to protect the marine environment in their internal waters (to which Canada also counts the waters of the North-West Passage), the territorial sea and, to some degree as permitted by Article 56 para. 1 lit. (a) of the United Nations Convention on the Law of the Sea17 (UNCLOS), the Exclusive Economic Zone (EEZ), a competence that can be expanded for ice-covered areas of the EEZ according to Article 234 UNCLOS, the flag state is entirely responsible for vessel-source pollution in areas beyond national jurisdiction, that is, in particular in the high seas portion of the Central Arctic Ocean (CAO). Despite the geographical distance of the CAO to the coast, the fragility of the marine environment of the Arctic Ocean requires a holistic approach to the protection of the entire Arctic Ocean biosphere. In the following, existing international legal norms will be examined through an analysis of legal documents and academic literature in order to show which legal norms exist that might be utilised to protect the Arctic marine environment and the health of local residents. In this context, the emphasis will shift to the role of the coastal states beyond the aforementioned regulatory opportunities afforded by UNCLOS. In addition, light will be shed on the role of industry standards before an attempt will be made to look into the potential future of cruise ship operations in the Arctic and their international legal regulation. The focus of this text will be on the protection of the environment. The reason for this approach is found in the dependence of everybody in the Arctic on nature, be it from the perspective of food security, income opportunities, or human safety in a particularly challenging environment and climate. Through the protection of the natural environment, it is possible to make substantial contributions to the protection of human health and the cultural and other rights of the people who live along the coasts.
2.2 Governing an Ice-Free Arctic Ocean: Flag-State Perspectives
The Arctic Ocean is becoming largely ice-free for the first time in human history. This raises the question of how this “new ocean”18 will be governed in the future. In the 2008 Ilulissat Declaration,19 the coastal states of the Arctic Ocean agreed that the international law of the sea provides the regulatory framework for the Arctic Ocean. While UNCLOS forms the fundament and general framework for the international law of the sea, customary international law and other international treaties and regulations created on the basis of these treaties are additional elements of the totality of international rules that regulate international ship operations. In the case of Arctic ship operations, the International Convention for the Safety of Life at Sea20 (SOLAS) and the International Convention for the Prevention of Pollution from Ships21 (MARPOL) provide significant rules that help to provide safety to vessels and the people who work on them and to protect the ocean environment. On the basis of both SOLAS and MARPOL, the Polar Code has been adopted through the International Maritime Organization (IMO), an international organisation that has been given a specific legal status in the international law of the sea, as a binding set of norms that aim to enhance safety and environmental protection in the Arctic and Southern Oceans, taking into account dangers that are specific to polar waters.
Under MARPOL, regional Emission Control Areas (ECA s), for example in the Baltic Sea (cf. Section 3 of Regulation 14 in Annex VI to MARPOL), have been expanded, including Sulphur Emission Control Areas (SECA s), where only ship diesel with reduced sulphur content may be used. Since the beginning of 2020, these regional requirements have been taken to the global level through Regulation 14, Section 1.3, of Annex VI to MARPOL. Prior to 2020, ship owners faced two compliance options, either to install scrubbers, functioning somewhat similar to catalysers in cars, or to switch to low-sulphur content fuels. The latter choice has been the preferred course of action for most ship operators to comply with the global sulphur limit. Although technically only referring to sulphur contents in ship fuels, this measure already goes a way towards reducing the air pollution from ships – but this improvement is happening on a very low level. Air pollution from ships continues to be a problem not only with regard to the health effects of air pollution but also in the context of climate change.
Currently, discussions concerning limits to greenhouse gas (GHG) emissions by ships are underway in international fora such as the IMO. Currently, the shipping industry is not covered by the Paris Agreement,22 although the Kyoto Protocol23 to the United Nations Framework Convention on Climate Change24 (UNFCCC) covered it, which remains the basis for the work of the International Maritime Organization with regard to climate change in the international shipping sector.25 As climate change becomes a more and more important driver for legislative change on the national and international levels, it is likely that these discussions will continue and that pressure will grow on the industry. In fact, the industry is already reacting: in late 2019, the Association of Arctic Expedition Cruise Operators (AECO) anticipated the IMO’s ban on heavy fuel oils (HFO s) and decided that its members, cruise ship operators working in the Arctic, would voluntarily refrain from using HFO s. In this way, cruise operators were able to contribute to these ongoing efforts, while local operators of ferries or cargo ships would not yet be forced to take the same action. In semi-structured conversations with industry experts and local residents in Greenland in 2019, it became clear that there are significant concerns that a forced transition to cleaner fuel oils would lead to increased transport costs and in turn to higher consumer prices in Greenland.
These concerns are hardly surprising as most products, including many food products, have to be transported to Greenland by ship and because the trade by ship has long been essentially limited to connections between Denmark and Greenland. Protecting the Arctic marine environment and combating climate change is positive for the local coastal communities in the Arctic because these actions enable the continuation of traditional, sustainable, lifestyles and contribute to food security. But there is also a social dimension to these measures. The transition to a global zero-emission society has to take these social aspects into account as well, especially because it is often the case that, like in the Arctic, the communities that suffer the most from the direct and indirect effects of climate change (the indirect effects including the increase in ship traffic in the Arctic Ocean, including “last minute” Arctic cruise tourism inspired by the impact of climate change that is already visible in the Arctic today) are often not the communities that have created the bulk of the causes for climate change. With regard to the planned ban of HFO s in the Arctic, that follows a similar ban in the Southern Ocean, the delay in the planned implementation might be seen as a recognition of this social dimension because this gives ship operators more time to adapt.
But fuel oils, while an important aspect of the risk of pollution in the Arctic, are only part of the overall picture. One aspect of navigational safety that has gained more attention after the 2012 Costa Concordia disaster is that of the crew. The human factor has already been taken into account for decades in the standardisation of training requirements for seafarers in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers26 (STCW). Through the Polar Code,27 additional training requirements for seafarers working in polar regions have been created and while more detailed regulation would have been possible,28 this has been an important step in the right direction.29
All of these norms, however, depend on the flag states’ willingness to implement them. It is the legal obligation of the flag state to ensure compliance with international standards by the ships that fly its flag.30 Today, many ships are registered in countries far from where they operate and the practical ability of flag states to ensure compliance with international environmental standards on faraway high seas is technically limited. In the future, assuming the availability of affordable 24/7 global fast internet connections through satellite constellations, it might be more feasible than today that flag states will impose technological systems (similar to but far more detailed in terms of the types of data transmitted than the automated positioning systems that already are in use today) to increase surveillance of compliance by ships and their crews. It will be up to the flag states to actually utilise new technical possibilities to facilitate disaster risk reduction at sea. But while technical compliance issues can be dealt with through technological solutions, this will not always be the case and it certainly is not the case today. Today, states in different parts of the world have concluded regional memoranda of understanding (MoUs) that allow for mutual Port State Control (PSC) and effective enforcement of international standards. Ships are subjected to regular controls in foreign ports. Often, these controls are focused on the presence of proper documentation, for example, insurance certificates. PSC is an effective way to ensure compliance because vessels can be detained in case of non-compliance, which leads to immediate costs for owners and/or operators, thereby creating a simple financial incentive to comply. Also, due to an exchange of information between different state parties to the same MoU, frequent compliance problems will make it more likely for the same vessel to be controlled more often. The shortcoming of this system is that it is often impossible for port authorities in very busy ports to control every ship every time. In particular, in the cargo shipping sector, the turnaround times in port are so short that too frequent PSC activities might render a port too unattractive for shipping companies, even in case of perfect compliance, because of the risk of lost profits. Arctic ports that only handle one or few ships at a time might not have this problem and local port authorities, if equipped and funded properly, might be able to devote more time to PSC, thereby increasing the likelihood of identifying, for example, vessels that do not comply with the aforementioned sulphur limits. Already in 2018, the captain of a U.S. cruise vessel was arrested and later fined 100.000 EUR in Marseilles, France, for using fuel with a higher than permitted sulphur content of 1,68% instead of the 1,5% that was permitted in the port at that time.31 Often, arrests are not even the most potent deterrent, because port authorities may also detain the entire vessel, i.e., making it illegal for the vessel to leave the port. In addition to the loss of profit in the cargo sector, one can easily imagine the financial reputational damage for a cruise ship operating company if hundreds or thousands of passengers will have to be flown out (and compensated) in the middle of an ongoing cruise. The Athens Convention32 and the 2002 protocol33 thereto, that also have been implemented into EU law through Regulation (EC) No. 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents,34 provides a clear compensation scheme for passengers.35 While the legal obligations depend on flag states insofar as they are the ones that have to ratify international treaties in order to create legal effects for ships that fly their flags, coastal states are by no means powerless.
2.3 Regional Arctic Law: Coastal State Perspectives
In the Arctic, the coastal states of the Arctic Ocean, i.e., the United States of America, Canada, Denmark with regard to Greenland, Norway, and the Russian Federation, along with Iceland (located in the North Atlantic), as well as Sweden and Finland (coastal states of the Baltic Sea that also often experiences sea ice), have long played a key role in the international governance of the Arctic. Together with six representative organisations of the indigenous peoples of the Arctic (referred to as permanent participants), these states form the Arctic Council, a unique international forum for cooperation on issues of common concern in the Arctic region across political differences. In addition to the aforementioned UNCLOS rules, the member states of the AC have used this forum to negotiate three international treaties:36 the 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic,37 the 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic38 and the 2017 Agreement on Enhancing International Arctic Scientific Cooperation.39 These treaties all have a strong connection to the sea but also emphasise human-related aspects,40 in particular human safety and security. They do not replace UNCLOS but, similar to MARPOL and SOLAS, as well as the Polar Code that is based on both MARPOL and SOLAS, they complement the existing norms. In these treaties, the strong spirit of cooperation in the Arctic has been given a practical legal form. That said, it has to be recognised that the AC is not entirely immune to political differences,41 but as long as there is consensus that certain challenges have to be met for the Arctic as a whole, the AC provides a well-functioning forum for international cooperation. While there might be different visions of climate change in the Arctic,42 the protection of the marine environment and of human health as well as the sustainable development of the region43 are likely to remain shared concerns for the foreseeable future. The same can be said of the need for scientific research in the Arctic Ocean, a field that plays a particularly important role in cross-border cooperation between countries that follow different political trajectories.44 While the legal status of sustainable development in international law remains the object of some debate,45 it has long been a concern for the AC, in addition to the maritime and scientific issues that are already covered by the three aforementioned international treaties that have been concluded by the eight member states of the Arctic Council.
The treaties created under the auspices of the Arctic Council benefit from the particular structure of the Arctic Council, which includes not only member states but also indigenous representative organisations as permanent representatives46 and which places a particular emphasis on issues that are of practical relevance to the people who live in the Arctic and on scientific research.47
What these treaties do not provide is a regional seas agreement (RSA) like it exists for several seas around the world.48 Like MARPOL, SOLAS, the aforementioned Polar Code, and other international legal rules, they form pieces of a puzzle but these pieces together do not yet create a complete picture. Here, it is not only necessary to enforce the existing norms, but there is actually a need for more regulation. International law tends to be slow-moving and reactive in nature. This is especially the case when it comes to maritime safety standards. Many technical standards were introduced after specific problems had been identified, for example regarding crew behavior after the Costa Concordia disaster, regarding double-hulled oil tankers after the 1967 Torrey Canyon incident, or in connection with roll on/roll off (RoRo) ferries after the fatal sinking of the Estonia in 1994. In the Arctic Ocean, the international legal community has reacted to the reality of climate change in the Arctic but can also be seen as having been proactive in terms of regulating some activities that were not yet happening when unregulated fishing was outlawed in the high seas part of the Central Arctic Ocean through the 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean,49 also referred to as the Central Arctic Ocean Fisheries Agreement (CAOFA).
Today, Arctic fisheries regulation50 is actively protecting fish stocks the size and composition of which are still unknown at this time. More often than not, though, international law is reactive. This is also one of the reasons why the Arctic Ocean has not yet been designated a Particularly Sensitive Sea Area (PSSA).51 Such a measure can be taken once there is a threat from shipping to the marine environment of a sea area. All over the world, sensitive waters have been given this designation to allow for additional protective measures, so-called Associated Protective Measures (APM s). For example, there exists in the Wadden Sea in the North Sea a mandatory route in deeper water that ships are legally required to use and in the Baltic Sea and elsewhere traffic separation schemes have been established so that ships that travel in one direction follow the same route, distinct from the route taken by ships that travel in the opposite direction. These measures can reduce the risk of ship-to-ship collisions and consequently accident-induced oil spills. Other APM s can consist of reporting schemes to allow coastal states increased marine domain awareness.
International law, although defending the general principle of the freedom of navigation, provides coastal states with a wide range of measures to protect the marine environment near their coasts. Some of these options are included in UNCLOS norms like Article 234 UNCLOS, others are contained in other international treaties or in more specific regulations. A solution that protects the Arctic Ocean against pollution from ships can be created within the existing international legal framework. Existing international norms relevant to the Arctic, such as the Polar Code, or multilateral agreements between Arctic states, in particular the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic and the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic can be an inspiration for the creation of future norms. At the end of the day, it will be the needs of local communities52 that will have to be taken into account in particular, especially given the dependence on the natural environment, for example to guarantee food security. In the following, we will look at the status quo of international Arctic law.
3 International Disaster Risk Reduction Law Made in the Arctic
This ideal, that local communities are given a seat at the table, has been realised in the Arctic since 1996 when the Arctic Council was founded. In addition to the eight member states, the AC includes six representative organisations of Arctic indigenous peoples that, as permanent participants, hold a special status almost at the same level as that of the member states of the Arctic Council. While not an international organisation in the classical sense of the term, the AC has become the most important forum for the development of international policies and also binding norms that are specifically intended for the Arctic region. Combining local expertise, scientific research and a particular “spirit” of cross-border cooperation,53 the Arctic Council provides a unique forum, although at times cooperation in the Arctic has required other forms. As it is the Arctic Ocean which connects most Arctic nations and which is the international legal space par excellence, the regulatory emphasis has also been on the Arctic Ocean. In the following, it will be shown how topics of shared concern have led to Arctic-specific law-making on the international level with the aim to reduce disaster risks in the Arctic Ocean and mitigate the consequences of potential disasters. In particular, it will be illustrated how the relevant law-making process has involved all relevant stakeholders in the Arctic region. In this respect, it is worth recalling that the importance of taking into account the perspective of all the actors at stake, including local communities, in the law-making process of disaster risk reduction (DRR), finds express reference in the most relevant international law DRR instruments. Suffice to recall that the Yokohama Strategy and Plan of Action for a Safer World,54 the Hyogo Framework for Action,55 and the Sendai Framework for Disaster Risk Reduction56 have all acknowledged the importance of involving especially local communities in DRR.57 In particular, the Sendai Framework for Disaster Risk Reduction has made it clear that ‘it is necessary to empower local authorities and local communities to reduce disaster risk, including through resources, incentives and decision-making responsibilities, as appropriate’58 and has called states to ‘ensure the use of traditional, indigenous and local knowledge and practices, as appropriate, to complement scientific knowledge in disaster risk assessment and the development and implementation of policies, strategies, plans and programmes of specific sectors, with a cross-sectoral approach, which should be tailored to localities and to the context’.59
3.1 Human Safety: Search and Rescue Operations
As already outlined, ship navigation can be challenging in the Arctic, due to the climate peculiarity of the region; even more, in case of accidents, Arctic climate conditions can make search and rescue operations quite complicated.60 The need to strengthen the search and rescue capabilities in the Arctic was well illustrated, among others, in the Ilulissat Declaration, which was adopted by the five Arctic Ocean coastal states at a conference in Greenland in May 2008, which stressed, among others, the need to take steps in order to ‘strengthen existing measures and develop new measures to improve the safety of maritime navigation and prevent or reduce the risk of ship-based pollution in the Arctic Ocean’,61 and in the following Arctic Marine Shipping Assessment Report, prepared by the Arctic Marine Environment (PAME) working group in collaboration with the Emergency Prevention, Preparedness and Response (EPPR) working group,62 which was presented and approved during the Arctic Council sixth Ministerial Meeting that took place in Tromsø in April 2009.63 The report was based on the consultations that the working groups undertook with all relevant stakeholders, including ‘the global maritime community consisting of shipping companies, ship designers, shipbuilders, ship classification societies, marine insurers, non-commercial partnerships and shipping associations [… as well as w]ith the support of the Permanent Participants (indigenous organisations) of the Arctic Council’.64 Indeed, as it has rightly pointed out, search and rescue operations in the Arctic region are ‘a complex and dynamic cross-disciplinary activity that requires the combined effort of multiple actors with specialized human and technical resources. Due to limited resources and infrastructure in the Arctic, international cooperation is particularly important’.65
During the sixth Ministerial Meeting, the Arctic Council agreed to establish a Task Force for the purpose of negotiating an international instrument on cooperation in search and rescue operations in the Arctic region.66 The Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (SAR Agreement) was signed at the Seventh Ministerial Meeting of the Arctic Council held in Nuuk, Greenland, in May 2011 and entered into force in January 2013.67 As outlined in Article 2 of the Agreement, the aim of the agreement is ‘to strengthen aeronautical and maritime search and rescue cooperation and coordination in the Arctic’ in the “territory” of the Parties – which includes their respective land areas, internal waters and territorial seas, together with the superjacent airspace.68
The SAR Agreement is the first legally binding international agreement adopted within the framework of the Arctic Council.69 Though the first in its kind, the SAR Agreement builds on earlier multilateral agreements, like the 1979 International Convention on Maritime Search and Rescue,70 and the 1944 Convention on International Civil Aviation (the so/called Chicago Convention),71 to which also all the Arctic countries are parties, together with the guidelines elaborated by IMO and the International Civil Aviation Organization (ICAO), namely the International Aeronautical and Maritime Search and Rescue Manual (IAMSAR Manual).72 It also resembles in some parts previous bilateral agreements on search and rescue operations that were already concluded by the Arctic states, namely the 1949 Canada-USA Agreement,73 the 1965 Denmark-Russia Agreement,74 the Sweden-Norway Agreement75 and Canada-USA Agreement, both concluded in 1974,76 the 1986 Finland-Norway Agreement,77 the 1988 USA-Russia Agreement,78 the 1989 Sweden-Russia Agreement,79 the 1993 Finland-Sweden Agreement80 and the 1994 Finland- Russia Agreement.81
The SAR Agreement consists of a Preamble, 20 articles, an annex and three appendices; overall, it aims to establish a comprehensive legal framework for search and rescue operations at the regional level among the Arctic states.82 In particular, Article 7 of the SAR Agreement lays down the core principles of SAR operations in the Arctic,83 which include: consistency with the laws and regulations of the party in whose territory SAR operations are conducted; providing ‘necessary assistance’ to anyone who ‘is, or appears to be, in distress’, with the specification that the ‘assistance [should] be provided to any person in distress […] regardless of the nationality or status of such a person or the circumstances in which that person is found’; and sharing of all relevant information in an urgent way in case there is a reasonable belief that ‘a person, a vessel or other craft or aircraft is in a state of emergency in the area of another Party’.84 Under the SAR Agreement, each party has defined the relevant ‘search and rescue regions’,85 along with the Competent Authorities, the agencies responsible for search and rescue, as well as the relevant aeronautical and maritime ‘rescue coordination center’.86
One of the core parts of the SAR Agreement relates to cooperation: according to article 9, states are required to cooperate through an extensive and efficient ‘exchange [of] information that may serve to improve the effectiveness of search and rescue operations’87 and to ‘promote mutual search and rescue cooperation by giving due consideration to collaborative efforts’ that can encompass ‘exchange of experience’, exchange visits programmes for search and rescue personnel across state parties, conducting ‘joint search and rescue exercises and training’, sharing all relevant information, equipment and facilities and ‘conducting regular communications checks and exercises’,88 which include also joint reviews ‘[a]fter a major joint search and rescue operation’.89 In this regard, it is worth recalling the first tabletop exercise, which was held in Whitehorse, Yukon, Canada, in October 2011; the exercise gathered 80 delegates and observers all the Arctic Council members, and was devoted to ‘strategic and operational aspects of aeronautical and maritime SAR [operations] in the Arctic’.90 Then, in September 2012, the first live search and rescue exercise, involving personnel, authorities, airplanes, helicopters and ships from the Arctic states took place along Greenland’s east coast.91
Cooperation duties can also be extended ‘where appropriate [… to] States not a party to this Agreement that may be able to contribute to the conduct of search and rescue operations’.92 Non-Arctic states may have actually manifold interests in the SAR Agreement and the relevant search and rescue mechanisms; in this respect, suffice to briefly recall that the ships that are used for Arctic activities can be registered in and/or operated by companies in non-Arctic states.93
The SAR Agreement also envisages that the parties meet on a regular basis ‘in order to consider and resolve issues regarding practical cooperation’.94 During such meetings, parties elaborate proposals for improving the application of international guidelines to issues concerning SAR in the Arctic.95 In this respect, also the Arctic Council keep playing a relevant role, and especially the EPPR Working Group;96 indeed, since 2015, pursuant to the Arctic Council Iqaluit Declaration,97 the EPPR Working Group is giving advice on relevant search and rescue incidents and events and is tasked to maintain a repository of lessons learned and best practices of Arctic search and rescue incidents and events, thus contributing to the implementation of the SAR Agreement. In order to better perform these tasks, the EPPR Working Group established in 2015 the Search and Rescue Expert Group, where subject matter experts meet to evaluate and promote the implementation of the SAR Agreement.98
As already noted, search and rescue operation are very peculiar in the Arctic, not only for the harsh conditions in which ship navigations – and commercial operations in general – are carried on, but also for the harsh conditions in which rescue technicians operates. Actually, the human-related aspects of the search and rescue operations need to ‘be addressed and planned for due to the very specific nature of the challenges that require a customized SAR Arctic response [and still, e]ffective […] rescue protocols, and equipment are currently lacking for Arctic operations’.99 The SAR Agreement already includes, as briefly outlined, some aspects addressing human safety, taking into account the safety of the persons in distress100 and also of the personnel tasked with search and rescue operations – especially putting an emphasis on the need for sharing of information among the parties on the ‘search and rescue facilities’ and of any other ‘information useful for training search and rescue personnel’ – thus – albeit implicitly – recognising the need to consider every aspect of human safety in search and rescue operations in the Arctic.101
Overall, the SAR Agreement provides a sound base for further cooperation and coordination among Arctic states on search and rescue operations; it has also opened the way to enhance cooperation among Arctic states on other safety issues, like marine oil pollution, as outlined in the next paragraph.102
3.2 Environmental Safety: Oil Spills in Arctic Waters
As mentioned in the previous paragraphs, the commercial shipping in Arctic waters, together with the growing interest in petroleum production in the region, with more and more investments from oil and gas companies, increases the risk of accidental oil spills, which requires an adequate legal framework within which countries can operate.103
While announcing the conclusion of the SAR Agreement, the Arctic Council, in its Nuuk Declaration of 12 May 2011, also decided to establish a Task Force to work on the development of ‘an international instrument on Arctic marine oil pollution preparedness and response, and call for the Emergency Preventions, Preparedness and Response (EPPR) and other relevant working groups to develop recommendations and/or best practices in the prevention of marine oil pollution’.104 The development of the regional instrument on oil pollution was also aimed to give effect to Article 10 of the International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC Convention), which called on the parties to ‘conclude bilateral or multilateral agreements for oil pollution preparedness and response’.105
The outcomes of these works were submitted to the Kiruna Ministerial Meeting in May 2013, where the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic was signed by the eight Arctic states.106 The Agreement comprises 23 article, and three Appendixes. The first three, like in the SAR Agreement, identify the competent national authorities, the operational contact points and the national assistance authorities, respectively, while Appendix IV includes a set of non-binding Operational Guidelines, which ‘address procedures for notification and request for assistance, command and control in response operations, joint training and exercises, administrative issues and other recommended measures to facilitate an effective cooperative oil pollution incident response’,107 which were prepared by the EPPR Working Group.108
The Agreement relies on existing agreements between two or more of the Arctic states, and expressly recognises that these texts will guide the coordination in response operations within their jurisdiction.109 The Operational Guidelines also highlight that previous agreements can ‘be used in addition to such plans, or to aid in their development or revision’.110 In particular, some of the Arctic countries, namely Denmark, Finland, Iceland, Norway and Sweden were already part of the 1971 Copenhagen Agreement, which also addresses marine oil pollution.111 With respect to oil and gas activities in the border area of the Barents Sea between Russia and Norway, a bilateral Oil Spill Response agreement was concluded in 1994; Russia concluded also an agreement on Oil Spill Response concerning the Bering and Chukchi Seas with the United States in 1989.112 Among the other Arctic countries, also Canada concluded an Oil Spill Response agreement with Denmark in 1983113 and the Great Lakes Water Quality Agreement with the United States in 1972, followed by the 1974 Joint Marine Pollution Contingency Plan.114
Overall, the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic provides for Parties to cooperate and assist a Party which requests assistance to respond to an oil pollution incident, noting that ‘in the event of an oil pollution incident, prompt and effective action and cooperation among the Parties is essential in order to minimize damage that may result from such an incident’.115 Thus, while the SAR Agreement relates to human safety, the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic addresses the environmental safety of the Arctic.
The core commitments of the Agreement include: 1) establishing efficient national systems for responding to oil pollution incidents, including monitoring systems;116 2) obligations of notifications to the other parties in case of incidents;117 3) providing mutual assistance and cooperation in the event of oil spill incidents;118 4) promoting cooperation and exchange of information that can improve the effectiveness of response operations;119 and, 5) conduct a joint review of activities undertaken during a coordinated response operation – if possible, in the most transparent way, also making ‘the results of such joint review publicly available’.120
On the other hand, the Operational Guidelines included in Appendix IV of the Agreement prepared by EPPR Working Group ‘to assist in the implementation’ of the Agreement, with regard, in particular, notification systems, outline of procedures for conducting join reviews of oil pollution incident response operations and of procedures for conducting joint exercises, and how to require assistance.121 In order to oversee the implementation of the Agreement, the EPPR Working Group established the Marine Environmental Response (MER) Experts Group in 2016.122 Moreover, the EPPR Working Group holds joint exercises with the countries that are aimed to assess and improve Arctic maritime emergency responses.123 Thus, there is constant technical support and advice to countries in order to better implement the Agreement.
Overall, the Agreement is relevant in the event an oil spill takes place,124 while it does not seem to be of great help when it comes to “prevent” oil spills incidents, with only a few references to monitoring and review of past joint operations, and without details commitments on how to establish and implement early warning systems.125
3.3 Food Security: Preventing a Collapse of Arctic Ocean Fish Stocks
On 25 June 2021, the Agreement to Prevent Unregulated High Seas Fisheries in the central Arctic Ocean (Central Arctic Ocean Fisheries Agreement) entered into force.126 The European Union (EU) – and accordingly, Finland and Sweden as EU member states – is a party to the agreement together with Canada, China, Denmark, Iceland, Japan, Korea, Norway, Russian and the United States.127 While the previously mentioned SAR Agreement and the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic were concluded only among Arctic countries, in this case the Central Arctic Ocean Fisheries Agreement includes also non-Arctic countries and the EU.128 Moreover, differently from the above-mentioned Arctic Council’s agreements, the Central Arctic Ocean Fisheries Agreement put a special emphasis on the five coastal Arctic Ocean states (Canada, Denmark/Greenland, Norway, Russia and the United States), recognising their ‘special responsibilities and special interests […] in relation to the conservation and sustainable management of fish stocks in the central Arctic Ocean’,129 thus providing different (possible) layers of cooperation (among the five coastal Arctic Ocean states, among the Arctic states and among the Arctic and non-Arctic states – and, additionally, cooperation with(in) the EU).130
The Agreement applies the precautionary approach to fisheries management with the aim to ‘prevent unregulated fishing in the high seas portion of the central Arctic Ocean through the application of precautionary conservation and management measures as part of a long-term strategy to safeguard healthy marine ecosystems and to ensure the conservation and sustainable use of fish stocks’.131 At the same time, the Agreement calls on the parties to ‘facilitate cooperation in scientific activities with the goal of increasing knowledge of the living marine resources of the central Arctic Ocean and the ecosystems in which they occur’.132 The Central Arctic Ocean Fisheries Agreement creates an obligation for both ‘coastal state Parties’ and ‘other Parties’ to cooperate ‘to ensure the compatibility of conservation and management measures for fish stocks that occur in areas both within and beyond national jurisdiction in the Arctic Ocean in order to ensure conservation and management of those stocks in their entirety’.133 Article 4 of the Agreement, providing for a Joint Programme of Scientific Research and Monitoring and requiring the parties to ‘facilitate cooperation in scientific activities with the goal of increasing knowledge of the living marine resources of the central Arctic Ocean and the ecosystems in which they occur’, should be also read together with Part XIII of UNCLOS on Marine Scientific Research but also with the 2017 Agreement on Enhancing International Arctic Scientific Cooperation.134
As also recalled in the Preamble, the Agreement builds, among others, on the 2015 Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean signed by the five coastal Arctic Ocean states135 and on the 1995 Code of Conduct for Responsible Fisheries and ‘other relevant instruments adopted by the Food and Agriculture Organization of the United Nations’, including international agreements like the 1982 United Nations Convention on the Law of the Sea and the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.
At the international level, we shall recall that fisheries have progressively become a prominent area for the international governance of the sea and oceans, and so far the United Nations Conventions on the Law of the Sea (UNCLOS) has played a key role in this respect.136 In particular, the UNCLOS includes specific provisions (e.g. Articles 63, 64, 117, 118, and 197)137 that affirm the key role of the duty to cooperate by calling the States to create regional and sub-regional fisheries management organisations (RFMO s).138 These cooperative mechanisms may play an important role in adopting the regulations that aim to ensure the sustainable use of fish stocks management in the EEZ and on the high seas.139 Interestingly, for the Arctic Ocean, until the Central Arctic Ocean Fisheries Agreement only the North-East Atlantic Fisheries Commission (NEAFC) was established (as one of the RFMO), which has a regional area of interest extending into part of the Arctic Ocean.140
Moreover, it should be recalled that also the EU has developed an International Ocean Governance agenda and the EU Arctic policy, playing a key role in advancing scientific cooperation in the Arctic region.141 When it comes to fisheries, it is also worth recalling that the EU is also part of UNCLOS142 and UNFLAS143 and that, according to Article 3(1)(d) of the Treaty on the Functioning of the European Union (TFEU),144 it enjoys exclusive competence over the conservation and management of marine living resources.145 In particular, the EU policy of sustainable management of fisheries is regulated within the framework of the common fisheries policy (CFP), which underwent a major reform in 2013,146 thanks to the adoption of a comprehensive legal framework aimed to ‘ensure that fishing and aquaculture activities are environmentally sustainable in the long-term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies’.147 Regulation No. 1380/2013 has also made it clear which are the main requirements for conducting fisheries management in a sustainable way, stating that ‘[f]isheries management [should be] based on the best available scientific advice [which] requires harmonised, reliable and accurate data sets’;148 in particular, ‘[t]he CFP shall apply the precautionary approach to fisheries management [… and] shall implement the ecosystem-based approach to fisheries management so as to ensure that negative impacts of fishing activities on the marine ecosystem are minimised [… so to avoid] the degradation of the marine environment’.149 Accordingly, the precautionary approach in fisheries management is also very present in the EU policy. In particular, one of the main objectives of the fisheries management within the CFP is to safeguard stocks in order to provide the basis for long-term fishing yields; this is monitored through the so-called ‘maximum sustainable yield (MSY)’, which takes into account a ‘combination of input (rules on access to waters, fishing effort controls and technical measures) and output controls (setting total allowable catches and quotas)’150 within the framework of the multi-annual plans, which are one of the most important tools of the CFP.151 As specified by Article 9 of Regulation No 1380/2013, ‘[m]ultiannual plans shall be adopted […] based on scientific, technical and economic advice, and shall contain conservation measures to restore and maintain fish stocks above levels capable of producing maximum sustainable yield’.152 As recalled by Article 3 of Regulation No 1380/2013, ‘[t]he CFP shall be guided by […] principles of good governance [which include] the establishment of measures in accordance with the best available scientific advice’. Indeed, multiannual plans are being drafted with the scientific support of the relevant Advisory Councils, which ensure that stakeholders’ views are included when drafting CFP policies. Advisory Councils are composed of representatives from the industry and from other interest groups.153 The CFP does not only include rules aimed at the harmonisation of regulations among EU Member States, but it entails also an important external dimension.154 The EU has concluded several binding bilateral agreements with third States. In the North Sea and North-East Atlantic, in particular, it has concluded bilateral agreements with the United Kingdom, Norway, Faroe Islands and Iceland.155 The EU is also party, together with Denmark, Iceland, Norway, Russia and the United Kingdom of the 1982 Convention on Multilateral Cooperation in North-East Atlantic Fisheries and of the relevant above-mentioned RFMO for the North-East Atlantic, one of the most abundant fishing areas in the world.156
Accordingly, parties to the Central Arctic Ocean Fisheries Agreement bring along a background of regulation for the sustainable management of fisheries. Given the complexity of the relevant governance, the Agreement has been labelled as ‘an element in the evolving Arctic Ocean governance complex’. Indeed, including both Arctic and non-Arctic states, it ‘constitutes a progressive contribution to the evolving governance complex for the Arctic Ocean’ and has been considered as a starting point for further negotiation over the Central Arctic Ocean.157
4 Conclusions and Outlook
International treaty law made in the Arctic has a role to play in reducing disaster risks in the Arctic, in particular in the Arctic Ocean. The thematic scope of the existing treaties that have been created by Arctic states in cooperation with other stakeholders are limited to the issues that are of particular concern in the Arctic. This approach appears logical, and the international treaties discussed here complement other international norms that serve disaster risk reduction purposes such as SOLAS, MARPOL, and the Polar Code. The ability of the Arctic states may appear limited in geographical and thematic terms, but the methodology employed by Arctic states, in particular in the framework of the Arctic Council, is noteworthy in particular for future efforts to reduce disaster risks through international law. Of particular relevance is the reliance on scientific research and local, including traditional and indigenous, knowledge. The latter aspect is particularly important as this approach recognises the role of the peoples who have been at home in the Arctic for thousands of years and who have accumulated a large body of knowledge about the Arctic, its environment, wildlife, and climate. The rapid changes that the Arctic is undergoing today highlight the need for scientific research into the Arctic and the effects of climate change. These effects are by no means limited to the examples shown here. Other issues of shared concern include effects on flora, fauna, and livelihoods,158 the melting of permafrost and its effects, for example the emergence of pathogens159 and the destruction of buildings and transportation infrastructure,160 coastal erosion, the threat of tsunamis,161 flood risks, and environmental threats by new land uses, such as mining, the construction of ports, railways, or ski resort. Through working groups and task forces, the Arctic Council is already addressing some of these issues, in particular in the contexts of environmental protection and sustainable development.162 Although states might be less likely to enter into agreements that directly affect their land territories where they exercise full sovereignty as opposed to maritime regions beyond their territorial seas and, at the time of writing in early 2022, the political conditions for cooperation appear less than ideal, there is significant potential for future treaties among Arctic states to address these issues and to further contribute to the reduction of disaster risks in the Arctic region.
At the beginning of this text, we had indicated the impact of Russia’s war against Ukraine on Arctic cooperation, in particular on the Arctic Council. Since the escalation on 24 February 2022, relations between Russia and the West have deteriorated significantly. Finland and Sweden have given up generations of neutrality and have applied for membership in the North Atlantic Treaty Organization (NATO), a move that, as of early June 2022, continues to be blocked by Turkey, which is nominally a member of NATO and as such enjoys veto power over the admission of new member states, but continues to engage with Moscow. The current situation adds a layer of risk and uncertainty to the people who live in the European Arctic, too. Even on the local level, cooperation has come to a halt163 and while Search-and-Rescue cooperation continues to exist on paper,164 it seems questionable if and how cross-border cooperation with Russia, for example in case of an emergency at sea, would still be possible.
It has to be noted, though, that in addition to more informal settings, such as the Arctic Coast Guard Forum, also existing international legal instruments remain relevant,165 also with regard to Russia. Likewise, the global challenges and needs described in the previous paragraphs, like human, environmental and food security, will remain relevant for the people who live in the Arctic. We may question how all the cooperation mechanisms envisaged in the aforementioned agreements would be implemented without the involvement and willingness of implementation of one major player, namely Russia. The challenges for human safety and disaster risk reduction in the Arctic, however, continue. The deterioration of international relations between Arctic states and the crackdown on human rights in today’s Russia contribute to reducing cooperation and to enhancing risks in the region.
Prof. Dr. Stefan Kirchner, Coordinator of the Arctic Governance Research Group and Research Professor of Arctic Law, Arctic Centre, University of Lapland, Rovaniemi, Finland.
Dr. Federica Cristani, Senior Researcher, Department of International Law, Institute of International Relations, Prague, Czechia, and Visiting Senior Researcher at the Arctic Governance Research Group of the Arctic Centre, University of Lapland, Rovaniemi, Finland.
This text is up to date as of mid-June 2022.
James Overland and Muyin Wang, ‘When will the summer Arctic be nearly sea ice free?’ (2013) 40 Geophysical Research Letters, 2097–2101.
Axel J. Schweiger, Michael Steele, Jinlun Zhang, G.W.K. Moore and Kristin L. Laidre, ‘Accelerated sea ice loss in the Wandel Sea points to a change in the Arctic’s Last Ice Area’ (2021) 2 Nature Communications Earth & Environment, article number 122.
Mikhail Gorbachev, Speech in Murmansk on the Occasion of the Presentation of the Order of Lening and the Gold Star to the City of Murmansk, 1 October 1987, <https://www.barentsinfo.fi/docs/gorbachev_speech.pdf> last accessed (as any subsequent URL) on 21 June 2022.
Arctic Council, ‘Russian Chairmanship 2021–2023’ (no date) <https://arctic-council.org/about/russian-chairmanship-2>.
U.S. Department of State, Office of the Spokesperson, ‘Joint Statement on Arctic Council Cooperation Following Russia’s Invasion of Ukraine’, 3 March 2022, <https://www.state.gov/joint-statement-on-arctic-council-cooperation-following-russias-invasion-of-ukraine/>.
This information was not provided in a detailed form. Instead, since shortly after the joint statement of 3 March 2022, the website of the Arctic Council (<www.arctic-council.org>) prominently features a short statement: ‘The Arctic Council is pausing all official meetings of the Council and its subsidiary bodies until further notice’. This also had not changed as of 10 June 2022.
U.S. Department of State, Office of the Spokesperson, ‘Joint Statement on Limited Resumption of Arctic Council Cooperation’, 8 June 2022, <https://www.state.gov/joint-statement-on-limited-resumption-of-arctic-council-cooperation/>. Notably, both joint statements by the A7 included a statement in which the importance of the AC for Arctic governance was emphasised: ‘We remain convinced of the enduring value of the Arctic Council for circumpolar cooperation and reiterate our support for this forum and its important work’. This sentence in the joint statements of 3 March 2022 and 8 June 2022 highlights the relevance of the AC and the willingness to cooperate.
Timo Koivurova, ‘The Arctic Council can continue without Russia’ (Arctic Echoes, 15 March 2022) <https://www.arcticcentre.org/blogs/The-Arctic-Council-can-continue-without-Russia/tt1n04l2/77628336-69d5-4c12-ac4e-e06e95f8ead9>.
Stefan Kirchner, ‘International Arctic Governance without Russia’ (Social Science Research Network, 25 February 2022) <http://dx.doi.org/10.2139/ssrn.4044107>; Stefan Kirchner, ‘Nordic Plus: International Cooperation in the Arctic enters a new Era’ (Polar Connection, 6 March 2022) <https://polarconnection.org/nordic-plus-cooperation-arctic/>.
See, e.g., Stefan Kirchner, ‘Climate Change Effects on Snow Conditions and the Human Rights of Reindeer Herders’ (2015) 33 Pace Environmental Law Review, 1–22, <https://digitalcommons.pace.edu/pelr/vol33/iss1/1>.
See, in detail, Giovanna Maria Frisso, ‘Vulnerability, Arctic Indigenous Groups and Oil Spills Potential Contributions to the Work of the Arctic Council’ (2020) 3 Yearbook of International Disaster Law, 352–373.
On other oil spills than those by ships see Daria Shapovalova, ‘Special Rules for the Arctic? The Analysis of Arctic-Specific Safety and Environmental Regulation of Offshore Petroleum Development in the Arctic Ocean States’ in Eva Pongrácz, Victor Pavlov and Niko Hänninen (eds), Arctic Marine Sustainability – Arctic Maritime Businesses and the Resilience of the Marine Environment (Springer Nature 2020) 275–301.
Peter Wadhams, A Farewell to Ice (Penguin Books 2017) 99.
Wolfgang Kahl and Klaus Ferdinand Gärditz, Umweltrecht (C.H. Beck 2019) 458.
Henrik Ringbom, ‘Vessel-source pollution’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 105–131.
United Nations Convention on the Law of the Sea, 10 December 1982.
Although more of a symbolic nature, the phrase “new ocean” is frequently used to refer to the new uses of the Central Arctic Ocean that become possible due to large-scale melting of Arctic sea ice, see e.g. Timo Koivurova, Pirjo Kleemola-Juntunen and Stefan Kirchner, ‘Emergence of a New Ocean: How to React to the Massive Change?’ in Ken S. Coates and Carin Holroyd (eds), The Palgrave Handbook of Arctic Policy and Politics (Palgrave Macmillan 2019) 409–425.
Arctic Council, Ilulissat Declaration (28 May 2008) <https://arcticportal.org/images/stories/pdf/Ilulissat-declaration.pdf>.
International Convention for the Safety of Life at Sea (SOLAS), 20 January 1914.
International Convention for the Prevention of Pollution from Ships (MARPOL), 2 November 1973, and Protocol Relating to the International Convention for the Prevention of Pollution from Ships, 17 February 1978.
Paris Agreement, 12 December 2015.
Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997.
United Nations Framework Convention on Climate Change, 9 May 1992.
Stefan Kirchner and Katharina Heinrich, ‘Vessel-Source Pollution in the Arctic Ocean: Competing Interests of Flag States and Coastal States’ in Stefan Kirchner (ed), Security and Technology in Arctic Governance (Lit Verlag 2022) 13–32, 17.
International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 7 July 1978.
Polar Code, MEPC 68/21/Add. 1, Annex 10, 3–55, <https://www.icetra.is/media/english/POLAR-CODE-TEXT-AS-ADOPTED.pdf>.
See Stefan Kirchner and Susanna Pääkkölä, ‘Polar Health Risks: Seafarers’ Rights and Training in International Law’ (2016) 28 University of San Francisco Maritime Law Journal, 225–235.
Stefan Kirchner, ‘The human dimension of the Polar Code’ (2018) 10 Australian Journal of Maritime & Ocean Affairs, 1–8; Stefan Kirchner, ‘Disaster Risk Reduction in Cruise Shipping, Capacity Building for Crew Members and the Polar Code’ in Katja L.H. Samuel, Marie Aronsson-Storrier and Kirsten Nakjavani Bookmiller (eds), The Cambridge Handbook of Disaster Risk Reduction and International Law (CUP 2019) 336–351.
Karen N. Scott and David L. Van der Zwaag, ‘Polar Oceans and the Law of the Sea’ in Donald R. Rothwell, Alex G. Oude Elferink, Karen N. Scott and Tim Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP 2017) 724–751, 727.
The Guardian Staff and agencies, ‘Cruise ship captain fined €100,000 for using dirty fuel’ (The Guardian, 26 November 2018) <https://www.theguardian.com/world/2018/nov/26/cruise-ship-captain-fined-100000-for-using-dirty-fuel>.
Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (PAL Convention), 13 December 1974.
Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1 November 2002.
Regulation (EC) No. 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents, Official Journal 2009 L 131/24.
See Jan Martin Hoffmann, Grit Tüngler and Stefan Kirchner, ‘Europarechtliche Unfallhaftung und Versicherungspflicht der Anbieter von Seereisen’ (2013) 24 Europäische Zeitschrift für Wirtschaftsrecht / European Journal of Business Law / Revue Européenne de Droit Économique, 332–335; Stefan Kirchner, Grit Tüngler and Jan Martin Hoffmann, ‘Carrier Liability for Damages incurred by Ship Passengers: The European Union as a Trailblazer towards a Global Liability Regime?’ (2015) 23 University of Miami International and Comparative Law Review, 193–214.
See Timo Koivurova, Pirjo Kleemola-Juntunen and Stefan Kirchner, ‘Arctic regional agreements and arrangements’, in Karen N. Scott and David L. VanderZwaag (eds), Research Handbook on Polar Law (Edward Elgar 2020) 64–83, 73 ff.
Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2001.
Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, 15 May 2013.
Agreement on Enhancing International Arctic Scientific Cooperation, 11 May 2017.
See e.g. Derek D. Rogers, Michael King and Heather Carnahan, ‘Arctic Search and Rescue: A Case Study for Understanding Issues Related to Training and Human Factors When Working in the North’ in Pongrácz et al. (n 13) 333–344.
See Arctic Council, Joint declarations of the Foreign Ministers of the Arctic States at the 11th Ministerial meeting of the Arctic Council, held in Rovaniemi, Finland, 7 May 2019, <http://hdl.handle.net/11374/2418>.
See Eva Pongrácz, ‘Sustainability in an Arctic Context: Resilience of the Arctic Marine Environment’ in Pongrácz et al. (n 13) 3–23.
See Paul Arthur Berkman, ‘Polar science diplomacy’ in Scott et al. (n 36) 105–123.
See Laurence Boisson de Charzournes and Makane Moïse Mbengue, ‘Gabčikovo-Nagymaros Project (Hungary/Slovakia) (1997)’ in Eirik Bjorge and Cameron Miles (eds), Landmark Cases in Public International Law (Hart 2020) 435–453.
Timo Koivurova, Stefan Kirchner and Pirjo Kleemola-Juntunen, ‘Are we ready to govern a new ocean?’ in Marta Chantal Ribeiro, Fernando Loureiro Bastos and Tore Henriksen (eds), Global Challenges and the Law of the Sea (Springer 2020) 59–80, 68.
See ibid., 70 ff.
On the concept see Nilufer Oral, ‘Forty years of the UNEP Regional Seas Programme: from past to future’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 339–362.
Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean [Central Arctic Ocean Fisheries Agreement], 3 October 2018.
See Alf Håkon Hoel, ‘The evolving management of fisheries in the Arctic’ in Scott et al. (n 36) 200–217.
See in detail Stefan Kirchner, ‘The Future of the Central Arctic Ocean: Protection Through International Law’ (2017) 4 Journal of Territorial and Maritime Studies, 135–139.
See Stefan Kirchner, ‘Multiple Risks and Limited Law: Compensation for Oil Spills in the Context of Long-Term Damages to Arctic Coastal Communities’ (2016) 30 Ocean Yearbook, 267–281.
The idea of a specific Arctic “spirit” of cooperation lives on in the name of the Rovaniemi- based Arctic Spirit conference, one of the large regular Arctic conferences, along with Arctic Frontiers (Tromsø) or Arctic Circle (Reykjavik).
World Conference on Natural Disaster Reduction, Yokohama Strategy and Plan of Action for a Safer World (27 May 1994) <https://www.ifrc.org/docs/idrl/i248en.pdf>. See in particular point 6, according to which ‘Community involvement and their active participation should be encouraged in order to gain greater insight into the individual and collective perception of development and risk […]’.
World Conference on Disaster Reduction, Hyogo Framework for Action 2005–2015: Building the resilience of nations and communities to disasters (22 January 2005) A/CONF.206/6, <https://www.undrr.org/publication/hyogo-framework-action-2005-2015-building-resilience-nations-and-communities-disasters>. See in particular Section B, point 8, which ‘[…] stresses the importance of […] involving people in all aspects of disaster risk reduction in their own local communities’.
United Nations, Sendai Framework on Disaster Risk Reduction 2015–2020 (3 June 2015) UN Doc A/RES/69/283.
For a comment, see Arielle T. de la Poterie and Marie-Ange Baudoin, ‘From Yokohama to Sendai: Approaches to Participation in International Disaster Risk Reduction Frameworks’ (2015) 6 International Journal of Disaster Risk Science, 128 and also the report prepared by the UN General Assembly, ‘Promotion and protection of the rights of indigenous peoples in disaster risk reduction, prevention and preparedness initiatives’, Study by the Expert Mechanism on the Rights of Indigenous Peoples, Annex (7 August 2014) UN Doc A/HRC/27/66.
Ibid., point 19, para. f, p. 13.
Ibid., point 24, para. i, p. 15.
Yoshinobu Takei, ‘Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic: an assessment’ (2013) 2 Aegean Rev Law Sea, 81–109, 82. For an analysis of how harsh are conditions in the Arctic in search ad rescue operations, see also Derek D. Rogers, Michael King, and Heather Carnahan, ‘Arctic Search and Rescue: A Case Study for Understanding Issues Related to Training and Human Factors When Working in the North’, in Pongrácz et al. (n 13) 333–344.
Arctic Ocean Conference, The Ilulissat Declaration (28 May 2008) signed by the foreign ministers of Canada, Denmark, Norway, Russia and the United States.
The EPPR Working Group’s main task is to facilitate international cooperation on issues related to the prevention, preparedness and response to all kinds of environmental emergencies in the Arctic. The working group, established in 1991, meets twice annually, and has a two-year rotating Chairmanship and a secretariat. See all relevant information at the official webpage: <https://eppr.org/ru/about/>.
Arctic Council, Arctic Marine Environment (PAME) Working Group, Arctic Marine Shipping Assessment 2009 Report, <https://oaarchive.arctic-council.org/handle/11374/54>.
Are Kristoffer Sydnes, Maria Sydnes and Yngve Antonsen, ‘International Cooperation on Search and Rescue in the Arctic’ (2017) 8 Arctic Review on Law and Politics, 109.
Arctic Council, Tromsø Declaration, Sixth Ministerial Meeting of the Arctic Council (29 April 2009) under the heading “Arctic marine environment”, <https://oaarchive.arctic-council.org/handle/11374/91>.
Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, cit., see also Arctic Council, ‘Nuuk Declaration on the Occasion of the Seventh Ministerial Meeting’, 12 May 2011, <https://oaarchive.arctic-council.org/handle/11374/92> which announced the conclusion of the Agreement. For a comment on the Agreement, see, among others, Takei (n 60) 83, Bjorn Arp, ‘Introductory Note to the Agreement on cooperation on Aeronautical and Maritime Search and Rescue in the Arctic & the Treaty between Norway and Russia on the Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean’ (2011) 50/6 International Legal Materials, 1110–1130; Derek D. Rogers, Michael King and Heather Carnahan, ‘Arctic Search and Rescue: A Case Study for Understanding Issues Related to Training and Human Factors When Working in the North’, in Pongrácz et al. (n 13) 333–344 and Shih-Ming Kao, Nathaniel S. Pearre and Jeremy Firestone, ‘Adoption of the arctic search and rescue agreement: A shift of the arctic regime toward a hard law basis?’ (2012) 36/3 Marine Policy, 832–838.
Article 1, para. 2 of the SAR Agreement. See Borden Ladner Gervais, ‘The Arctic Council’s search and rescue agreement: a milestone’ (Lexology, 13 December 2011) <https://www.lexology.com/library/detail.aspx?g=7f38a8a9-b0ad-459c-9312-501906d26899>.
On the basis of the 1979 Convention, the IMO’s Maritime Safety Committee divided the world’s oceans into 13 search and rescue areas; in each one of them, the relevant states are responsible for delimited search and rescue regions. International Convention on Maritime Search and Rescue, 27 April 1979, lastly amended in 2004.
Convention on International Civil Aviation, Chicago, 7 December 1944.
Jointly published by IMO and the International Civil Aviation Organization (ICAO), <https://www.imo.org/en/OurWork/Safety/Pages/IAMSARManual.aspx>. The Manual provides guidelines for a common aviation and maritime approach in search and rescue operations; it consists of three volumes, 1) on the establishment and improvement of national and regional search and rescue systems and international cooperation, 2) guidelines for those who plan and coordinate search and rescue operations and exercises, and 3) guidelines for the conduct of operations on-scene. Article 7(1)(2) of the SAR Agreement makes explicit reference to these instruments, affirming that ‘The SAR Convention and the Chicago Convention shall be used as the basis for conducting search and rescue operations under this Agreement. The IAMSAR Manual provides additional guidelines for implementing this Agreement’. See Gervais (n 68).
Exchange of Notes Constituting an Agreement Between the Governments of the United States of America and Canada Relating to Air Search and Rescue Operations Along Their Common Boundary, Washington, 24 January 1949 (Canada) and 31 January 1949 (U.S.).
Agreement between the Government of the Kingdom of Denmark and the Government of the Union of Soviet Socialist Republics concerning the Rescue and Salvage Operations in Danish and Soviet Waters, Moscow, 9 October 1965.
Agreement between Sweden and Norway concerning the Improvement of Rescue Services in Frontier Areas, 19 March 1974.
Search and Rescue Agreement between Chief of Defence Staff, Canadian Forces and Commandant, U.S. Coast Guard, 12 September 1974 (Canada) and 25 October 1974 (U.S.).
Agreement on Co-operation concerning Rescue Services in the Frontier Areas between Finland and Norway, Helsinki, 16 January 1986.
Agreement between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Maritime Search and Rescue, 31 May 1988.
Agreement between the Government of the Kingdom of Sweden and the Government of the Union of Soviet Socialist Republics concerning Cooperation in Respect of Maritime and Aeronautical Search and Rescue in the Baltic Sea, 24 May 1989.
Agreement between the Government of the Republic of Finland and the Government of the Kingdom of Sweden on Cooperation in Maritime and Aeronautical Rescue Services, 17 November 1993.
Agreement between the Government of the Republic of Finland and the Government of the Russian Federation on Cooperation with Regard to Maritime and Aeronautical Search and Rescue, 5 March 1993. For a comment, see Takei (n 60) 89.
SAR Agreement, Article 7(3).
Annex of the SAR Agreement.
These resemble the three main levels of the decision-making process in search and rescue operations, ‘where “competent authorities” represent the political level, “agencies” are government units with a specific functional and/or territorial competence, and “rescue coordination centers” are the units which have overall operational responsibility during SAR operations’, Sydnes (n 65). Appendix I, II and III of the SAR Agreement – Articles 4–6 of the SAR Agreement. It should be noted that the area of application of the SAR Agreement encompasses territories that are beyond what is normally considered as the Arctic region or the Arctic Ocean. This might be due to the need to coordinate the SAR Agreement with the previous above-mentioned agreements. See in this regard Gervais (n 68) and Takei (n 60) 87.
Article 9(2) of the SAR Agreement.
Article 9(3) of the SAR Agreement.
Article 11 of the SAR Agreement. See Gervais (n 68).
Arctic Council, ‘First Arctic Council SAR exercise in Whitehorse, Canada’, 1 September 2005, Arctic Council, First Arctic Council SAR exercise in Whitehorse, Canada, <http://www.arctic-council.org/index.php/en/oceans/search-and-rescue/209-sar-exercise-whitehorse>. For a comment, see Takei (n 60) 90.
Arctic Council, ‘First Live Arctic Search and Rescue Exercise – SAREX 2012’, 1 September 2005, <https://arctic-council.org/news/first-live-arctic-search-and-rescue-exercise-sarex-2012/>.
Article 18 of the SAR Agreement.
See Takei (n 60) 89.
Article 10 of the SAR Agreement.
See Takei (n 60) 86.
Arctic Councill, Iqaluit Declaration. The Ninth Ministerial Meeting of the Arctic Council, 24 April 2015, <https://oaarchive.arctic-council.org/handle/11374/662>.
See EPPR, Search and Rescue (SAR) Experts Group Mandate, 29 June 2017, <https://oaarchive.arctic-council.org/handle/11374/2106>. See also Sydnes (n 65) 118.
Derek D. Rogers, Michael King, and Heather Carnahan, ‘Arctic Search and Rescue: A Case Study for Understanding Issues Related to Training and Human Factors When Working in the North’ in Pongrácz et al. (n 13) 342.
See in particular the Preamble and Article 7(3) of the SAR Agreement.
See Article 9 of the SAR Agreement.
See Takei (n 60) 96.
Kay Fjørtoft and Tor Einar Berg, ‘Handling the Preparedness Challenges for Maritime and Offshore Operations in Arctic Waters’ in Pongrácz et al. (n 13) 205–206.
Arctic Council, Nuuk Declaration on the Occasion of the Seventh Ministerial Meeting, 12 May 2011, <https://oaarchive.arctic-council.org/handle/11374/92>.
Article 10 of the International Convention on Oil Pollution Preparedness, Response and Co-operation, London, 30 November 1990.
Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic; see Larry Trigatti, Ole-Kristian Bjerkemo, Mark Everett, ‘Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic: Presentation of the Agreement and Development of the Operational Guidelines’ (2014) 1 International Oil Spill Conference Proceedings, 1486.
Appendix IV of the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic.
Trigatti et al. (n 106) 1492.
Article 16 of the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic.
Ibid., Appendix IV.
Agreement between Denmark, Finland, Iceland, Norway and Sweden about Cooperation concerning Pollution Control of the Sea after Contamination by Oil or other Harmful Substances of 1971, revised in 1993. The parties agree to cooperate on surveillance, investigations, reporting, securing of evidence, combatting and assistance in combatting, as well as general exchange of information to protect the marine environment from pollution by oil or other hazardous substances.
Agreement between the Government of the Union of Soviet Socialist Republics and the Government of the United States of America concerning Cooperation in Combating Pollution in the Bering and Chukchi Seas in emergency situations (1989).
Agreement between the Government of Canada and the Government of the Kingdom of Denmark for Cooperation Relating to the Marine Environment (1983).
1972 Great Lakes Water Quality Agreement Canada – United States Joint Marine Pollution Contingency Plan for the Great Lakes of 1974, last revied in 2003. Maaike Knol and Peter Arbo, ‘Oil spill response in the Arctic: Norwegian experiences and future perspectives’ (2014) 50 Marine Policy, 172; Are Kristoffer Sydnes and Maria Sydnes, ‘Norwegian–Russian cooperation on oil-spill response in the Barents Sea’ (2013) 39 Marine Policy, 257–264.
Preamble of the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic.
Ibid., arts. 4 and 7.
Ibid., art. 6.
Ibid., art. 8.
Ibid., art. 12.
Ibid., art. 11. See Trigatti et al. (n 106) 1487.
See Appendix IV of the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic. For a comment, see Trigatti et al. (n 106) 1489.
Arctic Council, EPPR Working Group, Marine Environmental Response (MER) Experts Group Mandate, 29 June 2017, at <https://oaarchive.arctic-council.org/handle/11374/2107>.
See all relevant information at the official webpage of the EPPR Working Group, Marine Environmental Response, <https://eppr.org/expert-groups/mer/>.
Knol et al. (n 114) 173.
Articles 7 and 11 of the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic. See also Daria Shapovalova, ‘Can International Law Protect the Arctic from Oil Spills?’, 26 March 2019, The Arctic Institute, <https://www.thearcticinstitute.org/international-law-protect-arctic-oil-spills/>.
Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. The agreement will initially be in force for a period of 16 years, until 2037. This period will be automatically extended for another five years, unless one of the Parties objects.
European Commission, Arctic: Agreement to prevent unregulated fishing enters into force, 25 June 2021, <https://ec.europa.eu/oceans-and-fisheries/news/arctic-agreement-prevent-unregulated-fishing-enters-force-2021-06-25_en>.
Preamble of the Central Arctic Ocean Fisheries Agreement.
See Takei (n 60) 96.
Art. 2 of the Central Arctic Ocean Fisheries Agreement.
Ibid., art. 4.
Ibid., art. 3(6).
Alexander N. Vylegzhanin, Oran R.Young and Paul Arthur Berkman, ‘The Central Arctic Ocean Fisheries Agreement as an element in the evolving Arctic Ocean governance complex’ (2020) 118 Marine Policy, 104001.
Oslo Declaration on High Seas Fishing in the Central Arctic Ocean (CAO) signed in July 2015.
United Nations Convention on the Law of the Sea, 10 December 1982.
See arts. 63, 64, 117, 118, and 197 of UNCLOS, that affirm the value to ‘[c]ooperate with other states […] as may be necessary for the conservation of the living resources of the high sea’.
Elise Anne Clark, ‘Strengthening Regional Fisheries Management. An Analysis of the Duty to Cooperate’ (2011) New Zealand Journal of Public and International Law, 223 ff.
There are in total 13 RFMO s (five “tuna” and seven “non-tuna”). See the list at <https://ec.europa.eu/oceans-and-fisheries/fisheries/international-agreements/regional-fisheries-management-organisations-rfmos_en>.
European Commission, ‘Arctic: Agreement to prevent unregulated fishing enters into force, 25 June 2021’ <https://ec.europa.eu/oceans-and-fisheries/news/arctic-agreement-prevent-unregulated-fishing-enters-force-2021-06-25_en>.
The EU ratified UNCLOS on 1 April 1998.
The EU ratified UNFLAS on 19 December 2003.
The Treaty on the Functioning of the European Union, entered into force 1 December 2009. Art. 3(1)(d) reads as follows: ‘The Union shall have exclusive competence in the following areas: […] the conservation of marine biological resources under the common fisheries policy’.
Richard Barnes, James Harrison, Eva van der Marel and Mihail Vatsov, ‘Introduction: External Aspects of the European Union Common Fisheries Policy’ (2020) International Journal of Marine and Coastal Law, 5.
Regulation (EU) No 1380/2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC, 11 December 2013. The text was modified by the following Regulation 2015/812 of 20 May 2015, Regulation 2017/2092 of 15 November 2017 and Regulation 2019/1241 of 20 June 2019.
Art. 2(1) of Regulation (EU) No 1380/2013.
Art. 2(1)(2)(3) of Regulation (EU) No 1380/2013.
Barnes et al. (n 145) 6.
Andrew Clayton, ‘Lessons From Implementation of the EU’s Common Fisheries Policy’, Pewtrusts.org, 22 March 2021, <https://www.pewtrusts.org/-/media/assets/2021/03/eone-lessonslearned.pdf>.
Multiannual plans are specific tools conceived by the European Commission to ensure a sustainable management of fisheries by supporting a sustainable exploitation of fish stocks.
The Advisory Councils play an important role by supporting the European Commission on matters that directly affect fisheries.
Barnes et al. (n 145) 7.
See all the relevant information at European Commission, Northern agreements, <https://ec.europa.eu/oceans-and-fisheries/fisheries/international-agreements/northern-agreements_en>.
Klaus Dodds, ‘“Real interest”? Understanding the 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean’ (2019) 10/4 Global Policy, 549.
Stefan Kirchner, ‘Climate Change Effects on Snow Conditions and the Human Rights of Reindeer Herders’ (2015) 33 Pace Environmental Law Review, 1–22; Timo Koivurova, Stefan Kirchner and Pirjo Kleemola-Juntunen, ‘Are we ready to govern a new ocean?’ in Chantal Ribeiro et al. (n 46) 67.
See Elisa Stella, Lorenzo Mari, Jacopo Gabrieli, Carlo Barbante and Enrico Bertuzzo, ‘Permafrost dynamics and the risk of anthrax transmission: a modelling study’ (2020) Nature Scientific Reports, article number 16460.
Jan Hjort, Olli Karjalainen, Juha Aalto, Sebastian Westermann, Vladimir E. Romanovsky, Frederick E. Nelson, Bernd Etzelmüller and Miska Luoto, ‘Degrading permafrost puts Arctic infrastructure at risk by mid-century’ (2018) 9 Nature Communications, article number 5147; Oleg A. Anisimov and Svetlana Reneva, ‘Permafrost and Changing Climate: The Russian Perspective’ (2006) 35 Ambio, 169–175; Boris Nikolayevich Porfiriev, Dmitry O. Eliseev and Dmitry A. Steletskiy, ‘Economic Assessment of Permafrost Degradation Effects on Road Infrastructure Sustainability under Climate Change in the Russian Arctic’ (2019) 89 Herald of the Russian Academy of Sciences, 567–576.
Kevin McGwin, ‘Economic Assessment of Permafrost Degradation Effects on Road Infrastructure Sustainability under Climate Change in the Russian Arctic’ (Arctic Today, 2 February 2021) <https://www.arctictoday.com/researchers-recommend-a-warning-system-for-greenland-hamlets-flooded-by-2017-tsunami/>.
See Koivurova et al. (n 158) 72 ff.
Thomas Nilsen, ‘Useless to continue regional diplomatic relations’ (Barents Observer, 10 June 2022) <https://thebarentsobserver.com/en/life-and-public/2022/06/useless-continue-regional-diplomatic-relations>.
As well expressed in Article 3 of the ILC Draft Articled on the Effects of armed conflicts on treaties, ‘[t]he existence of an armed conflict does not ipso facto terminate or suspend the operation of treaties: (a) As between States parties to the conflict; (b) As between a State party to the conflict and a State that is not’, UNGA Res 66/99, Effects of armed conflicts on treaties (27 February 2012) UN Doc A/RES/66/99.