Tag Archives: shipping

What Are These Countries Doing Here? Analyzing Transparency in the Current Flag of Convenience Regime and Their Impact on Shipping in the Arctic

One of the shipping industry’s most systemic issues is the lack of regulation regarding Flags of Convenience (FOCs). Ships with FOCs “are ships registered under the maritime laws of a country which is not the home of the country of the ships; owners, because the country of registry offers low tax rates and/or leniency in crew and safety requirements.”[1] This lack of enforcement and regulation is made worse even worse for vulnerable environments such as the Arctic[2] In the Arctic and Sub-Arctic States, the International Maritime Organization and the Arctic Council face the challenge of controlling and regulating these vessels under foreign flags that transit through Arctic routes. According to the United Nations Convention for the Law of the Sea (UNCLOS) Art. 24, para 1(b): “[…] the coastal State shall not: discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State,”[3] meaning all flags shall be accepted unless it is proven that vessels do not comply with the international regulations in force at that time. Furthermore, as States considered FOCs are the largest carriers of gross tonnage in the world,[4] they play a pivotal role in decision-making and the creation of treaties and conventions established under the auspices of the International Maritime Organization (IMO) and other relevant maritime bodies. Therefore, the lack of good governance from these States is translated into the international shipping regulatory framework and then put into practice by the industry.

 

Introduction

Because of FOCs[5] ship owners have the flexibility to choose where to register their vessels based on cost, convenience and the international and domestic regulations that would govern their operations, including those that transit the Arctic.[6] “Nevertheless, this freedom is sometimes abused and somehow ship owners end up in the hands of flag states that are incapable of enforcing international and national jurisdictions over their ships. Once again, these failed flag states are what are referred to as the FOCs.”[7] To show this lack of transparency, the authors set about to register a ship through an FOC for a ship they did not own and also show data showing unregulated, non-transparent behavior via registration already ongoing in the Arctic. This contribution will follow two previous contributions to Nordicum-Mediterraneum as it “will use the definition of transparency provided by Rachael Lorna Johnstone and Hjálti Ómar Ágústsson, as these authors evaluate transparency according to the ease of accessing information and the quality of this information.”[8] Therefore, for the authors’ experiment, “transparency is evaluated according to the ease of accessing information, its quality, and the timeliness of disclosure.”[9] The authors also support the Governance for Sustainable Human Development, the United Nations Development Programme (“UNDP”) definition of good governance, which “defines good governance as, among other things, participatory, transparent and accountable as well as effective, equitable and as promoting the rule of law.”[10]

In Section II, the authors will briefly outline the current regime’s failure in controlling FOCs regarding criminal, environmental and labor standards. In Section III, the authors focus specifically on the good-governance criterion of transparency in three FOC countries when it came to registering a ship called the Stena Nordica:  Liberia, Honduras and Panama. The authors compare these findings to the high-quality vessel registration of the Arctic state of Norway and how that relates to issues within the Arctic such as current violations within the Northern Sea Route (NSR) in Section IV. Section V will briefly consider three policy recommendations for the 8 Artic States of the Arctic Council to consider, and the authors will finish with a short conclusion regarding overall transparency findings.

 

Gaps in the Current Regime

“Use of open registers by the shipping industry is increasingly dominating global trade; over the last 50 years, shipping by vessels from open registers has been growing at more than ten times the general world economic growth rate. In 1970 21.6% of vessels were registered in open registries. By 2015 this had grown to 71.3% of the global fleet.”[11] Lack of safe conditions on board due to low amounts of regulatory policies, poor pay scales for workers and improper work schedules for FOCs allow inexpensive crews to be drawn from a global labor pool. Average annual labor costs aboard German container ships, for example, were reduced by over 74% by flagging out to FOCs in 1997.[12] In the deregulated FOC labor system, the total number of seafarers around the world has fallen as ships have been allowed to become much larger. There has also been a radical change in ocean labor’s ethnic composition, as crew members have been increasingly drawn from countries with relatively low wages and living conditions—leading to massive unemployment among unionized, high-wage seafarers from traditional maritime nations.[13] “Jail with a salary” has become a common figure of speech for work at sea in the FOC system.[14]

Environmental concerns also play a massive role in the current acts of FOCs. For example, the Deepwater Horizon’s registration was under the Marshall Islands,[15] a notorious FOC, causing quite a stir in the United States’ Congress, yet we saw no further restrictions on FOCs from this tragic incident.[16] Furthermore, the illegal nature regarding the activities of Liberia’s warlord and former President, Charles Taylor, was well documented as he was brought before the ICJ for war crimes, using ships on the Liberian Registry to move illegal goods, such as blood diamonds and illegal arms.[17] Even if such a behavior is known, enforcement is nigh impossible. “As is the case with flags of convenience in the mainstream shipping industry, the process of ‘reflagging’ enables a continuous circle of non-compliant behavior, as vessels are able to re-flag to a new register when the conditions imposed by their current flag, or the consequences of non-compliant behavior under that flag, become too onerous or restrictive. Similarly, if a previously non-compliant flag State decides to mend its ways and clean up its register, or to de-register vessels in order to reduce overcapacity, de-registering a vessel can export the problem, as the vessel concerned can simply find a new, less responsible flag State.”[18]

 

Registering of the Stena Nordica[19]

The Stena Nordica was chosen as it is a ship in which Author Thomas Viguier used to work on as a Merchant Marine Officer in 2015 while it was under the French flag. The vessel currently resides under the Bahamian flag, and thus being flagged under an FOC, made an opportune choice for the authors to have conversations about re-flagging without raising any eyebrows. The authors also chose this vessel as the Author knew the exact details of the vessel, allowing more detailed conversations regarding gross tonnage and net tonnage, as well as other important dates regarding flagging history and construction. Furthermore, Mr. Viguier had the chance to assist to the process of re-flagging the vessel from British to French flag, going through procedures, audits and formalities required to issue all the necessary certificates in order to obtain the right to sail the French flag. Furthermore, such procedures are highlighted by the IMO in its website section “Legal Affairs” under the article “Registration of Ships and Fraudulent Registration Matters”.  However, given further considerations of the scope of this paper, the authors decided not to go too far down the path of full re-flagging for legal reasons. However, the countries selected represent an Arctic State, Norway, which is highly respected for its high standards in terms of flag state regulations, and two flags of convenience: Liberia and Honduras, with the second inextricably linked to Panama.

a. Norway

As all States, even if landlocked, have the right to enjoy the freedom of sailing the high seas and the right of innocent passage within territorial waters of foreign States according to UNCLOS,[20] the above considered States may constitute possible flags that may fly in Arctic waters. As will be shown infra, such FOCs are currently engaging in Arctic shipping in the Northern Sea Route (NSR). At the top of the safety rankings, the Norwegian Maritime Authority shows transparency and good governance, providing in their website all the regulations in force (both national and internationally) as well as all the legally required documents.[21] In addition, the following information may be found online: the organizational structure and employees’ contacts;[22] strict rules on the selection of Class Societies are applied, with Norway being the largest and most trusted one;[23]and fees are explicit and classified according to types of vessels, length and gross tonnage, which are fully related to the ship and are realistic according to the economic value of both the ship and the possible economic benefit.[24]Limitations are set clearly by law for trade areas, and the NIS has legal regulations and frameworks that will rule and explicitly designate the use of the registered vessel,[25]and all aspects of a ship’s life are covered, from construction[26] to scrapping[27] were also found online.

Norway’s Maritime Authority has a high level of transparency, given the easy access to all fees, documents, and requirements in a highly navigable website, even in English, therefore satisfying the ease of access and quality our information adopted definition of transparency. Using the definition of transparency as ease of accessing information, its quality, and the timeliness of disclosure,[28] the information was of high quality, immediately available, and available in Norwegian and English. Thus, Norway is one of the most transparent states in providing shipping registration data.

b. Panama and Honduras

Panama and Honduras are interwoven, as Honduras admitted that we would need to register the vessel with Panama Port State Control to have a Honduran flag. Despite this connection, the conversations’ outcomes were very different, and the information provided by both websites was not in accordance with the information provided on the phone.

For Panama, the names, contact information and pictures of the board members can be found, including their organizational structure. However, Panama shows a lack of transparency on the documents required to register a vessel. Point 4 on “Abanderamiento Regular” (Regular flag attribution) states the Dirección General de la Marina Mercante reserves its right to ask for further documents for the flag attribution.[29] On the very short phone call,[30] conducted in Spanish, Thomas Viguier spoke with two persons. The first was a female secretary who transferred our call to a man who spoke incomprehensibly and placed Mr. Viguier on hold. The hold was subsequently cut short. Therefore, we received no information for simply asking, “We would like to register a vessel under the international registry of Panama.” Again, using the authors’ accepted definition from Johnstone and Ágústsson, the authors classify Panama as non-transparent as the website was nearly inoperable, not all information was accessible in English, and even a native speaker could not gather more information on the phone. Furthermore, the authors could not confirm the information on the website provided was accurate, which was an issue for other countries.

On the opposite end of the spectrum of transparency, Honduras had an unwieldy website where very little information regarding the board could be found.[31] There was part labeled “lawyers” with no names in the organizational chart, yet Mr. Viguier learned on the phone call that these lawyers are on standby to sign off on any accepted registration for a low price equivalent to 300 USD.[32] Furthermore, there is a “transparency” box on the website that lead to another complex website where opposite information may be found (e.g., the name of the General Director on the Dirección General de la Marina Mercante is “Roberto E. Cardona”[33] and the name in the Transparency Website is “Juan Carlos Rivera Garcia.”[34] The website itself raised transparency concerns before the call was even commenced.

An additional red flag for transparency was information sharing. When the Authors attempted to share the website’s link on Facebook, they received a message saying the link was violating the Facebook Community Standards:

 

 

 

 

 

Picture 1

 

The three pillars of Facebook’s Community standards are authenticity, safety, and privacy.[35] Therefore, either the website itself was insecure, unauthentic, or was violating unique visitors’ data privacy. The authors’ thoughts are that the site was insecure as it was probably not willfully hiding authentic information or harvesting data but was a result of mere negligence in the website’s maintenance. Either way, that shows a lack of upkeep by the State and allows the system to be infiltrated. In this sense, the transparency was negligible. This negligible transparency has massive repercussions due to the its insecurity as it means that it is highly vulnerable to cyberattacks by individuals or groups, leading to stolen data, deliberate spreading of misinformation, or compromising the security of the ship database itself. All of these outcomes would not only affect the State’s ability to run an efficient shipping registry but could also lead to legal disputes due to lack of privacy concerns.

Thomas Viguier called the phone number provided on the website,[36] and he spoke in Spanish with a person[37] who, within 15 minutes, gave an incredibly cheap fee for a provisional registry of the Stena Nordica,[38] by merely taking the Gross tonnage as stated (usually the Net tonnage is used but requires specific documents to be found that are not publicly available), at around 20,000 GT, as the tonnage for calculations. The person gave us his private phone number to accelerate the process through WhatsApp, and his email. The fee was USD 8013.18 for 6 months. The only required conditions to get the provisional license were:  The owner’s official documents accredited by a lawyer from Honduras (photocopy allowed and lawyer provided) and the Certification from the Class Society.

The representative told Mr. Viguier that the only delay and denial he could get was from checking the arrest file regarding the ship. Furthermore, in the official documents posted online, there is a clause we, as owners, can benefit from in which the owners receive a discount if the vessel is not arrested of up to 40%.[39] The provisional fee is 8013.18 USD, which is half the price to the registration fee of 16,000 USD under the Norwegian International Register (NIS), and is 82.7% cheaper compared to the whole year fee of 46,310 USD under the NIS during year 1. Table 1 illustrates the calculation of both fees for a 20.000 NT vessel.

 

Table 1: Fee Comparisons Between Honduran and Norwegian Registration

 

The calculated fee from Honduras Maritime Authority and the one was given on the phone call aligned. The Net tonnage given on the phone was slightly smaller, justifying the difference. The person also told us that they cooperate with Panama for their international registry, being able to register a vessel in Honduras via Panama’s Maritime Authorities.

There were other concerns on the call since our representative pushed very hard for a deal to get done and did not ask a single question besides the information needed to get the price, such as whether the ship was in working order or it had been arrested. There were no questions about who the caller was, where the ship was currently located or who the owner was. The authors conclude that if they had had the money on hand, they could have registered the ship in a very non-transparent manner given the information requested. Given the above, Honduras had a shocking lack of transparency and may even encourage borderline illegal behavior. While access to information was easy for a Spanish speaker, an English speaker would have struggled, based on the other authors’ attempts.[40] These low prices, the little information provided, as well as inoperable websites and preferential treatment for Spanish-speakers (at least anecdotally) shows that there is little transparency in the process given the adopted definition of transparency by the authors.

c. Liberia

Given that Liberia’s official language is English and provided that author Jonathan Wood is a New York-barred attorney in good standing, he called the Liberian Registry office in New York City,[41] hoping to achieve better results. He announced himself as a researcher for the University of Akureyri, attempting to fight the stigma of the term “Flag of Convenience.” The answerer, Claire Williams, said everyone is busy and would not speak with him, and she referred to their YouTube channel. When further elaborating on the research, she grew slightly warmer and provided her email address to make a formal inquiry. The Author made such an inquiry via email and followed up, yet never received any response. The Author reviewed online material and YouTube videos (which were thinly-veiled propaganda[42] and testimonials), finding accessible information in English; however, the forms such as in the case of Honduras and Panama were lacking. While language was not a concern for transparency, the ease of access of information was difficult, given the many offices Liberia uses, which is 24, and the timelines of information (of which there was none). Therefore, Liberia’s Registry was non-transparent, according to the authors based on their adopted definition given no information was provided, and the website itself provided no valuable information as it was a Kafka-esque experience to find a number to call to even register a vessel.

 

FOCs in the Arctic:  A Growing Concern

The lack of transparency is spilling into the Arctic, as from over 23 commercial vessels that transited through the NSR in 2018, 6 were from flags of convenience (Panama, Saint Kitts and Nevis, Bahamas, Liberia, Antigua and Barbuda), representing 26% of the transit.[43] While these numbers are small, scholars have predicted increased shipping via the NSR in the coming years, as Russia and China collaborate on infrastructure rebuilding.[44] See Table 2, which shows NSR shipping statistics for FOC flag states.

 

 

Table 2: Vessels that Sailed the NSR under a FOC

 

Four vessels are registered under the ice-class “Arc 4,” which is, according to the Russian Maritime Register of Shipping, the lowest legal ice-class for Arctic ships.[45] Moreover, one ship is a tanker registered for ice-class “Ice 3,” which is, again, according to the Russian Maritime Register of Shipping, for non-Arctic ships.[46] Such a ship, which sailed through the Northern Sea Route between October 23, 2018, and October 30, 2018, represented a significant oil-spill threat, given that it was below code and traversing the NSR at a time when sea ice begins to return. Finally, the last of the six ships are registered and approved for ice-class “Ice 1,” the lowest ice-class for non-Arctic ships, and sailed through the Northern Sea Route from October 22, 2018, and October 31, 2018, showing a significant deviation from Russian legal regulations on paper and a lack of enforcement. Such FOC shipping can present danger to the environment due to its fragility and human life, given the lack of search and rescue infrastructure. Given that there is no transparency from the FOC Flag states, how are other States, let alone NGOs and individuals, to monitor the increased shipping and risk in the near future? Overall, six of the seventeen ships were not registered and approved as Arctic ships[47].

Despite being classified as Ice-Class Arc4, vessels may follow navigation conditions depending on the service areas,[48] the conditions varying from Extreme to Easy. However, in the document “Rules for the Classification and Construction of Sea-Going Ships” of the Russian Maritime Register of Shipping,[49] the conditions are not defined per se, showing a lack of good governance, as that leaves open loopholes and lets FOCs off the hook.

Flexibility has always been at the core of maritime regulation, which is reflected in the IMO’s conventions due to the changing nature of sea conditions. One example is Rule 2 of the COLREG 72 Convention,[50] but at what point are conditions to be considered easy for a well-defined ice-class hull and what type of class is meant to handle strictly defined maximum ice conditions? These questions must be resolved before a catastrophic incident in the NSR or elsewhere in the Arctic.

The previous analysis highlights the environmental risk the FOCs represent in the Arctic. Furthermore, following a study carried out by Arctic Council’s PAME Working Group, of over 207 vessels that sailed the NSR from 2011 to 2015, 94 were tankers,[51] representing 45% of the traffic and underlining the environmental risk in terms of oil spills in the Arctic. Based upon the above research, both online and via in-person phone calls, the authors conclude FOCs are not transparent and should be held more accountable.

 

Future Policy Proposals

There are several future policy proposals to improve transparency and accountability among the FOC States. The first future policy proposal is to require transnational corporations to begin doing country-by-country reports. This type of reporting requires companies that engage in international production to name each country the company is operating in as well as all the subsidiaries and affiliates within said country, the performance and tax charge of each subsidiary and affiliate, details of the cost and net book value, gross and net assets of its fixed assets in each country.[52] This type of report was implemented for mineral and energy companies registered with the U.S. Securities and Exchange Commission in July 2010 from the passing of the Dodd-Frank Wall Street Reform and Consumer Protection Act and has been global in its reach, given the participant States in the Leading Group.[53] The reports detailed the payments remitted to countries of corporate origin (home) and countries of investment (host). This type of corporate, country-by-country reporting (CbC) creates a natural, albeit limited, sanction. Corporations eager to annul disclosure are forced to give up locations.

Similarly, the E.U. has already begun to receive CbC corporate records “to help investors to better assess the different national activities of multinational companies; and to enhance transparency about capital flows, for instance, to better enforce tax rules.”[54] This should be broadened to ensure that companies using FOCs to obfuscate dubious activity are brought to account. Implementing country-by-country reports for transnational corporations will create a transparency requirement for these companies, many of which operate shipping vessels engaged in IUU fishing. Often the FOC States do not have protections to ensure full disclosure by the owner of the ship.[55] The owner may be trying to hide this info for financial reasons, such as gaining anonymity using a tax haven. In contrast, others may be conducting illegal activities, such as illegal fishing, money laundering, and human trafficking,[56] and the owner wants not to be directly linked with those activities.

The second future policy proposal would call for upgraded Domestic Port State Controls. Port State Controls refers to “the inspection of foreign ships in national ports to verify that the condition of the ship and its equipment comply with the requirements of international regulations and that the ship is manned and operated in compliance with these rules.”[57] By upgrading those controls, ships can be held more accountable even if the flag of which it flies under is not holding it up to the same standards. One such way is to encourage the signing of the 2017 Paris Memorandum of Understanding, which creates a White, Grey, and Black List, with Ukraine joining the latter in 2019.[58] It has resulted in 3,781 detentions in 2016[59] and is slowing gaining more membership.

This can also be done in creative ways. In the United States on February 19, 1998, RCCL was indicted in Miami on a single count, not for dumping, but for “making” a false statement to the Coast Guard. The Nordic Empress discharged its waste in international waters, but the ship had presented the Coast Guard in Miami with an oil record book that omitted the discharge. While making a false statement to the Coast Guard is a crime in the United States, this was one of the first times the statute was used in this manner.[60] This is an example of upgraded Domestic Port State Controls that can help prevent illegal operations that FOC states otherwise go unchecked.

The final future policy proposal is to enhance regional/international agreements. In addition to cooperative efforts, existing conventions may be strengthened by supporting international agreements, such as MOUs. Fisheries management officials have proposed bilateral agreements between states with adjacent fishing zones or RFMOs that include mutual arrest powers. For example, Australia and France recently agreed to such a treaty, which would allow a French warship, for instance, to enter Australian waters and arrest a pirate FOC-IUU toothfish vessel and allow an Australian boat to do the same in French waters.[61] There are additional agreements regarding regulations on shipping. One such agreement is the Model Agreement on Exchange of Information put out by the Organization for Economic Cooperation and Development’s Committee on Fiscal Affairs.[62] Currently, 33 countries/jurisdictions have made these commitments.[63] This means those countries/jurisdictions will begin implementing the standards laid out in the agreement of transparency and exchange of information, which include measures to ensure transparency of ownership, by allowing agreements such as the Australian and French as well as the Model Agreement on Exchange to be implemented domestically and internationally increases the ability to regulate ships in other ports and policy regarding FOC vessels.

 

Conclusion

The FOCs of Panama, Honduras, and Liberia are uniformly and highly non-transparent based on their adopted definition of transparency, which stands in stark contrast to the transparency of Norway. This is based on the Authors’ personal experiences with live calls and comparing access to information in different jurisdictions, it is clear that FOCs are reticent to give any information over the phone and clam up if approached by any outsider, such as Jonathan Wood’s call with Liberia in English. Thomas Viguier’s call in Spanish to Honduras resulted in disorganized information, yet led to results that one could not call “good governance,” given the pushy attitude of the Honduran representative in trying to make a sale at any cost; however, Mr. Viguier experienced silence in Spanish as well in his Panamanian call. Overall, the authors noted inaccessibility and conflicting information on all of the websites explored, particularly Honduras. The best-run website was Liberia’s, yet it was a labyrinthine experience to find a phone number to call. Even the Spanish countries as their primary language did not provide accurate information, and the translations to English were severely lacking. As to timeliness, we did not receive any calls back or responses to email, yet the authors are confident that they could have registered the Stena Nordica via Honduras. While this contribution focused primarily on transparency, this impinged on multiple levels of good governance and gave the authors a tangible sense of agreement that FOC enforcement’s, or lack thereof, of the status quo and its transparency, as earlier defined, is severely lacking.

This lack of transparency is already having an impact. Given the fact that FOCs are already using the Northern Sea Route, including oil tankers, the risk of an emergency of an oil spill from an FOC-flagged vessel in the Arctic is imminently possible. Therefore, by bringing up the various proposals from Section V, supra, within the auspices of the Arctic Council, the ad hoc meetings of the Coastal Arctic Five, or the International Maritime Organization, there can be a much-needed dialogue on preventing the disasters that have occurred in the global South through lack of transparency and enforcement from happening in the very fragile environment in the Arctic. Given Norway’s membership in all of the above fora, and their transparency in ship registration, perhaps they may play a leadership role for stewardship of Arctic shipping transparency.

 

Endnotes

[1] Jamie Christy, “The Almost Always Forgotten, Yet Essential Part of Our World: An Examination of the Seafarer’s Lack of Legal and Economic Protections on Flag of Convenience Ships,” 32 U.S.F. Mar. L.J. 49, 50–51 (2020).

[2] Protection of the Arctic Marine Environment, “Arctic Marine Strategic Plan 2015-2025,” PAME, available at https://www.pame.is/images/03_Projects/AMSP/AMSP_2015-2025.pdf (Last accessed August 25, 2020).

[3] United Nations Treaty System, “United Nations Convention for the Law of the Sea,” United Nations (1982), at Art. 24, para. 1(b), available at https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (Last accessed August 25, 2020).

[4] Lloyd’s List, “Top 10 Flag States 2018,” Lloyd’s List Maritime Intelligence, (December 10, 2018), available at https://lloydslist.maritimeintelligence.informa.com/LL1125024/Top-10-flag-states-2018 (Last accessed August 25, 2020).

[5] See Christy, supra note 1, at pp. 49-51.

[6] See Goodman, Camille Jean, “The Regime for Flag State Responsibility in International Fisheries Law – Effective Fact, Creative Fiction, or Further Work Required?” Australia & New Zealand Mar. L.J., Vol. 23, pg. 157 (2009), available at https://www.researchgate.net/publication/266440227_The_Regime_for_Flag_State_Responsibility_in_International_Fisheries_Law_-_Effective_Fact_Creative_Fiction_or_Further_Work_Required (Last accessed August 25, 2020).

[7] Hamad, Bakar, “Flag of Convenience Practice: A Threat to Maritime Safety and Security,” IJRDO-Journal of Social Science and Humanities Research, 1:8 at pg. 218(August 2016), available at https://www.researchgate.net/publication/308308749_Flag_of_Convenience_Practice_A_Threat_to_Maritime_Safety_and_Security.

[8] Tiili, Kristin & Ramakers, Annelien, “Rule of Law and Transparency in Modern Norwegian Whaling (2006-2015),” Nordicum-Meditteraneum 12:1 (2017) available at https://nome.unak.is/wordpress/volume-12-no-1-2017/double-blind-peer-reviewed-article/rule-law-transparency-modern-norwegian-whaling-2006-2015. (Last accessed August 25, 2020).

[9] Johnstone, Rachael Lorna & Ágústsson, Hjálti Ómar, “Practicing What They Preach: Did the IMF and Iceland Exercise Good Governance in Their Relations 2008-2011?” Nordicum-Meditteraneum 8:1 (2013) available at https://nome.unak.is/wordpress/08-1/c48-article/practicing-what-they-preach-did-the-imf-and-iceland-exercise-good-governance-in-their-relations-2008-2011/ (Last accessed August 25, 2020) (emphasis in original).

[10] Friedl Weiss & Assisted by Silke Steiner, “Transparency As an Element of Good Governance in the Practice of the EU and the WTO: Overview and Comparison,” 30 Fordham Int’l L.J. 1545, 1549 (2007).

[11] Ford, Jessica & Chris Wilcox, “Shedding Light on the Dark Side of Maritime Trade—A New Approach for Identifying Countries as Flags of Convenience,” Marine Policy, pg. 298, (January 2019).

[12] See Morris, R., & T. Kilkauer, “Crews of Convenience from the Southwest Pacific,” New Zealand Journal of Industrial Relations, 26(2), (2001) at pg. 188.

[13] See Broeze F., The Globalisation of the Ocean: Containerisation from the 1950s to the Present, (St. John’s Newfoundland: International Maritime Economic Historic Association) (2002).

[14] Urbina, Ian, “Stowaways and Crimes Aboard a Scofflaw Ship,” N.Y. Times (July 19, 2015), available at https://www.nytimes.com/2015/07/19/world/stowaway-crime-scofflaw-ship.html (Last accessed August 25, 2020).

[15] Kshetri, Nir, “Marshall Islands,” The Statesman’s Yearbook (Jan. 4. 2020) at pp. 813-815.

[16] See Clark, Andrew, “BP Oil Rig Registration Raised in Congress Over Safety Concerns,” The Guardian, (May 30, 2010), available at https://www.theguardian.com/environment/2010/may/30/oil-spill-deepwater-horizon-marshall-islands (Last accessed August 25, 2020).

[17] See Sharife, Khadija, “Flying a Questionable Flag:  Liberia’s Lucrative Shipping Industry,” Reportage World Policy Journal, (Winter 2010/2011) at pg. 113, available at https://www.jstor.org/stable/pdf/40963779.pdf?refreqid=excelsior%3Af0254f5d81676f199b2878706f9454f9 (last accessed August 25, 2020).

[18] Goodman, note 9 supra, at pg. 164.

[19] The authors may be contacted to provide any more details on the ship, as necessary, to prove their knowledge of this vessel.

[20] See UNCLOS, note 3 supra at Arts. 26, 53.

[21] Norwegian Maritime Authority Website, “Registration of Ship in the NIS,” Sjøfartsdirektoratet, available at https://www.sdir.no/en/shipping/registration-of-commercial-vessels-in-nisnor/new-registration-nis/documentation-requirements-nis/ (Last accessed August 25, 2020).

[22] Norwegian Maritime Authority Website, “Organizational Structure and Employees,”  Sjøfartsdirektoratet, available at https://www.sdir.no/en/organization/organizational-structure-and-employees/ (Last accessed August 25, 2020).

[23] See Norwegian Maritime Authority Website at “Recognized Organizations,” supra note 17, available at https://www.sdir.no/en/shipping/vessels/vessel-surveys/approved-classification-societies/ (Last accessed August 25, 2020.)

[24] See id. at “21-December-2009-No.-1738-Tariff-of-Fees,” supra note 17,  available at https://www.sdir.no/contentassets/e7ee839cecce49cb8286b5fba381c841/21-december-2009-no.-1738-tariff-of-fees.pdf?t=1582119505790. (Last accessed August 25, 2020).

[25] See id. at “Trade Areas NIS Ships,” supra note 18, available at https://www.sdir.no/en/shipping/registration-of-commercial-vessels-in-nisnor/new-registration-nis/trade-areas-nis-ships/ (Last accessed August 25, 2020).

[26] See id. at “New Registration in the Shipbuilding Register,” supra note 17, available at https://www.sdir.no/en/shipping/registration-of-commercial-vessels-in-nisnor/new-registration-the-shipbuilding-register/ (Last accessed August 25, 2020).

[27] See id. at “New Registration in the Shipbuilding Register,” supra note 17 available at https://www.sdir.no/en/shipping/registration-of-commercial-vessels-in-nisnor/new-registration-the-shipbuilding-register/ (Last accessed August 25, 2020).

[28] See Johnstone & Ágústsson, supra, note 11.

[29] Autoridad Maritima de Panama, “Servicio Exterior,” Republica de Panama, available at https://amp.gob.pa/servicios/marina-mercante/abanderamiento-de-naves/servicio-exterior/ (Last  accessed August 25, 2020).

[30] All phone call logs were conducted using Jonathan Wood’s phone and logs are available to review upon request.

[31] Dirección General de la Marina Mercante Honduras Website, “Directorio de Contactos,” Dirección General de la Marina Mercante Honduras, available at https://marinamercante.gob.hn/?page_id=2336 (Last accessed August 25, 2020).

[32] Author Jonathan Wood, currently working as an attorney in private practice, can provide insight into the legal market and provide more details, if necessary, as to how out of line that price is with the market.

[33] See note 27 supra.

[34] See id. at “IAIP,” supra note 27, available at https://portalunico.iaip.gob.hn/portal/index.php?portal=343&Itemid=59 (Last accessed April 18, 2020).

[35] See Facebook, “Community Standards,” Facebook, available at https://www.facebook.com/communitystandards/ (Last accessed August 25, 2020).

[36] See  “Registro de Buques,” supra note 24, available at http://marinamercante.gob.hn/?page_id=2342 (Last accessed August 25, 2020).

[37] Information on this individual can be provided privately as the authors found him on LinkedIn but for purposes of this paper, we choose to preserve his anonymity.

[38] Marine Traffic Website, “STENA NORDICA (Ro-Ro/Passenger Ship) Registered in Bahamas,” MarineTraffic, which includes Vessel Details, Current Position and Voyage Information (IMO 9215505, MMSI 311000843, Call Sign C6EB2), available at https://www.marinetraffic.com/en/ais/details/ships/shipid:194642/mmsi:311000843/imo:9215505/vessel:STENA NORDICA (Last accessed August 25, 2020).

[39] See Dirección General de la Marina Mercante Honduras, “Ver Documento 7,” La Gaceta, (May 24, 2018), available at   https://portalunico.iaip.gob.hn/portal/ver_documento.php?uid=MzkyMjU4ODkzNDc2MzQ4NzEyNDYxOTg3MjM0Mg== (Last accessed August 25, 2020).

[40] Furthermore, seeking more information was difficult as the office itself did not know where all of the information was located as while Mr. Viguier was on hold, the initial person on the phone did not place him on hold. He heard shouting from the individual who picked up the phone, asking where certain offices were physically located and who was supposed to handle the topic of international ship registration. An entire discussion, held in Spanish, over the phone about whom to transfer him to before the individual realized his mistake and placed Mr. Viguier on hold. Therefore, Honduran transparency was shockingly low.

[41] See Liberian Registry, “Contacts,” Liberian Registry, available at https://www.liscr.com/liberian-registry#new-york (Last accessed August 25, 2020).

[42] See Liberian Registry, “All Flags Are Not Alike,” YouTube (June 28, 2018), available at https://www.youtube.com/watch?v=AKY3pp6wtUA (Last accessed August 25, 2020).

[43] Arctic-LIO, “Transits 2018,” Northern Sea Route Information, available at https://arctic-lio.com/wp-content/uploads/2019/02/Transits_2018.pdf (Last accessed August 25, 2020).

[44] See generally Tom Røseth, “Russia’s China Policy in the Arctic, Strategic Analysis,” Taylor & Francis, 38:6, pp. 841-859, available at DOI: 10.1080/09700161.2014.952942 (Last accessed August 25, 2020).

[45] See Russian Maritime Register of Ships, “Rules for the Classification and Construction of Sea-Going Ships,” Government of the Russian Federation, at pp. 12–13, (September 9, 2016), available at https://rs-class.org/upload/iblock/ee4/ee42f902bc2f1b2eb2bbeff75efffcee.pdf (Last accessed August 25, 2020).

[46] See id. at pg. 12.

[47] Approved ships included an icebreaker, a harbor tug, a fishing vessel, a bunkering vessel engaged in harbor activity and 2 cargo vessels engaged in short-term cabotage.

[48] See id. at pg. 13.

[49] See id.

[50] United Nations Treaty Series, “Convention on the International Regulations for Preventing Collisions at Sea,” United Nations (1972), available at https://treaties.un.org/doc/Publication/UNTS/Volume%201050/volume-1050-I-15824-English.pdf> (Last accessed August 25 2020).

[51] Protection of the Arctic Marine Environment, “Types of Ships 2011-2015,” PAME (no date given), available at  https://www.pame.is/images/03_Projects/AMSA/NSR/types-of-ships_2011-2015.jpg (Last accessed August 25, 2020).

[52] See Richard Murphy, “Country-by-Country Reporting: Holding Multinational Corporations to Account Wherever They Are,” Task Force for Financial Integrity & Economic Development, (June 2009), available at http://www.financialtransparency.org/wp-content/uploads/2015/04/Final_CbyC_Report_Published.pdf (Last accessed August 25, 2020).

[53] See id. at pg. 2.

[54] European Commission “Commission Staff Working Document Impact Assessment assessing the potential for further transparency on income tax information Accompanying the document Proposal for a Directive of the European Parliament and of the Council amending Directive 2013/34/EU as regards disclosure of income tax information by certain undertakings and branches,” European Commission, SWD/2016/0117 final – 2016/0107 (COD), (April 12, 2016), available at https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX:52016SC0117

(Last accessed August 25, 2020).

[55] See Hamad, Bakar, “Flag of Convenience Practice: A Threat to Maritime Safety and Security,” IJRDO-Jounral of Social Science and Humanities Research, 1:8 at Abstract, (August 2016), available at https://www.researchgate.net/publication/308308749_Flag_of_Convenience_Practice_A_Threat_to_Maritime_Safety_and_Security (Last accessed August 25, 2020).

[56] See Sharife, Khadija, “Flying a Questionable Flag:  Liberia’s Lucrative Shipping Industry,” Reportage World Policy Journal, (Winter 2010/2011) at pg. 115, available at https://www.jstor.org/stable/pdf/40963779.pdf?refreqid=excelsior%3Af0254f5d81676f199b2878706f9454f9 (last accessed August 25, 2020).

[57] Anonymous, “Port State Control,” International Maritme Organization, available at http://www.imo.org/en/OurWork/MSAS/Pages/PortStateControl.aspx (Last accessed August 25, 2020).

[58] See Press Release, “Safeguarding Responsible and Sustainable Shipping,” Paris Memorandum of Understanding, at Executive Summary (2017), available at https://www.parismou.org/2017-paris-mou-annual-report-%E2%80%9Csafeguarding-responsible-and-sustainable-shipping%E2%80%9D (Last accessed August 25, 2020).

[59] See id.

[60] See United States v. Royal Caribbean Cruises, Ltd., 11 F. Supp. 2d 1358, 1365 (S.D. Fla. 1998) (holding “Act to Prevent Pollution from Ships (APPS), as an allegedly more specific ‘false statements’ law regulating cruise ship’s conduct in failing to properly report alleged discharge of oil, did not preclude prosecution under the False Statements Act for false statements allegedly made to Coast Guard upon ship’s arrival in United States port.”)

[61] Australia Country Fact Sheet, “Treaty Between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Islands and the McDonald Islands,” Government of Australia, (Canberra, 24 November 2003), available at www.aphref.aph.gov.au_house_committee_jsct_12may2004_treaties_frnia.pdf (Last accessed August 25, 2020).

[62] See Maritime Transport Committee, “Maritime Security—Ownership and Control of Ships: Options to Improve Transparency,” Organisation for Economic Co-operation and Development, (December 17, 2003), available at http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DSTI/DOT/MTC(2003)61/REV1&docLanguage=En (Last accessed August 25, 2020).

[63] See id. at pg. 22.

L.P. Hildebrand, L.W. Brigham, and T.M. Johansson (eds.), Sustainable Shipping in a Changing Arctic (WMU Studies in Maritime Affairs, 7) (Cham: Springer, 2018)

Sustainable shipping in a Changing Arctic is the 7th book in the series of World Maritime University (WMU) Studies in Maritime Affairs. WMU is a post-graduate maritime university funded in 1983 by the International Maritime Organization (IMO) the United Nations specialized agency with responsibility for the safety and security of shipping and the prevention of marine and atmospheric pollution by ship[1]. Previous books in the series address a diverse variety of shipping and maritime issues, including Piracy at Sea (2013), Maritime Women: Global Leadership (2015), and Shipping Operation Management (2017). The 7th book focuses in particular on the Arctic region and builds on the international conference Safe and Sustainable Shipping in a Changing Arctic Environment (ShipArc2015) held in Malmö (Sweden) in August 2015, convened by WMU, IMO, and the Arctic Council’s Working Group on the Protection of the Arctic Marine Environment (PAME).

 Sustainable shipping in a Changing Arctic brings together multiple perspectives – in a classical as pragmatic structure presenting key current issues, future challenges and next steps – to address matters concerning the development of a sustainable shipping industry in a changing Arctic environment. The Arctic environment is indeed changing, as highlighted throughout the book, in the sense that it is warming twice as fast as the rest of the World due to the effects of climate change. Its most tangible effects are seen on its sea-ice, including multiyear sea-ice, which is undergoing severe transformations regarding its extent, as vast areas once covered by sea-ice are now ice-free especially during warmer months, regarding its thickness, as sea-ice that still endures is often thinner and more easily breakable, and regarding its character, as first-year ice is now found in areas once covered by multiyear sea-ice. In addition, over the last two decades, scientists have recorded earlier break-up and later freeze-up, a trend that worsens every year, implying longer ice-free seasons in vast areas of region. Less, thinner, predominantly first-year ice and longer ice-free seasons also means that access to areas of the Arctic, hitherto inaccessible, become feasible and for prolonged periods, therefore increasing accessibility to technically recoverable natural resources, opening up maritime sea routes, and unveiling new opportunities for commercial sea-transportation. Understandably, interests in the development of such economic opportunities by Arctic and non-Arctic stakeholders is accelerating, and the pressure on the environment due to an expanding marine use is only expected to further increase.

This scenario calls, as the short but to the point blurb of the book anticipates, for the adoption of a forward-looking agenda that respects the fragile and changing Arctic frontier. As a matter of facts, and in the words of Cleopatra Doumbia-Henry,  WMU President  in the foreword, [t]he book series also serves as a platform for promoting and advancing the UN 2030 Agenda for Sustainable Development and the marine-related Sustainable Development Goals, particularly goal 14 on oceans as well as the interconnected Goals 4 (quality education), 5 (gender equality),  (affordable and clean energy), 9 (industry, innovation and infrastructure), 13 (climate action), and 1 (partnership)[2].

If you are in the academia dealing with Arctic maritime issues or in the maritime business sector with an eye on the Arctic region, this collection of 23 articles has been compiled especially for you (or so it is announced by the President in her foreword). The aim at becoming a one-stop read, or a comprehensive vademecum of essays and information on Arctic environmental protection and sustainable maritime business development is further underlined by the choice of enclosing in the Conclusions (part 7) full texts of Arctic and shipping relevant agreements and declarations, including the Ilulissat Declaration (2008) and the Agreement on enhancing International Arctic Scientific Cooperation (2017). Interestingly, this section also includes the Declaration concerning the Prevention of unregulated High Seas Fishing in the Central Arctic Ocean and the Chairman’s Statement on the Meeting on High Seas Fisheries in the Central Arctic Ocean (Reykjavík, Iceland, 15-18 March 2017), both document serving as most up-to date information anticipating the imminent end of the negotiations of the legally binding Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, in fact signed in Ilulissat, Greenland, on October 3rd, on the same year of the publication of the book, i.e. 2018. Therefore, if you were eager to read a thorough analysis on prevention of commercial fishing in the high seas of the central Arctic Ocean, I am afraid you may need to wait for a possible updated of the book (or a new issue) or look somewhere else for the moment being.

The multiple perspectives anticipated in the introduction are presented in form of 23 articles, written by more than 40 experts in maritime issues and distributed in 7 thematic parts. The stage is set in Part I, where legal and regulatory frameworks relevant for Arctic marine operations and shipping are presented. As to be expected, the very first article in this part provides an insightful analysis of the International Code for Shipping Operating in Polar Waters, better known by its short name of “Polar Code”, adopted by IMO in 2014/5 (after many years of negotiations and discussions) and entered into force on January 2017. In addition to the analysis of the different requirements set by the Code, including safety, design, crew and environmental requirements, this part also presents key risk factors — including the uncertainty and the human factors — and encloses suggestions for future legal developments. Part II specifically gathers contributions addressing Arctic ship monitoring and tracking, highlighting the crucial role new technologies may play in accidents prevention in the poorly-charted areas of the Arctic. One of the contributions further support this point by presenting case studies of well-known accidents occurred in different parts of the globe, as for instance the M/V Exxon Valdez oil spill accident, M/V Rena, or the M/V Costa Concordia collision, and points out how they could have been possibly avoidable by implementing eg. virtual aids for navigation.

A completely different angle is tackled in Part III of the book. It introduces elements of Arctic Governance, including implications of the legal regime of marine insurance on safety and on the environment and a discussion on the legal status of the North-West passage. The accent is put on joint efforts for developing a sustainable shipping governance in the region, including also non-Arctic States and non-Arctic entities such as the EU. This part also introduces the readers to the following, part IV, which examines more in-depth issues regarding protection and response in the Arctic marine environment, and addresses issues as challenges in establishing Marine Protected Areas. This part includes an interesting discussion on the crucial and positive role of Traditional Knowledge in enhancing the understanding of the Arctic marine environment and the necessity of meaningfully involve  Arctic indigenous communities in the decision-making process regarding Arctic vessel traffic development in the Bering Strait region (Alaska).

Part V bring up the discussion on training and capacity building only hinted at the beginning of the book. Contributions tackle several issues as e.g. education, emergency management or the industry programme improving oil spill response in the Arctic, to name but a few. To the opposite, only one article addresses Sustainable Arctic Business Development (part VI) and provides a contribution on configuration and management of offshore oil and gas operations.

The book is indeed comprehensive and tackle a vast variety of Arctic maritime issues under different angles and perspectives, indeed accomplishing the goal of serving as a “textbook” for academic, practitioners, environmentalist and affected authorities in the shipping industry alike, as described in the blurb. Possibly not all contributions are as detailed and precise, but this has to be expected in collection of essays such as this one. However, the reader needs to arrive to the very end of the book, namely its Conclusion, in order to fully grasp what possibly is the correct reading key for this collection of essays. In fact, when I first got Sustainable shipping in a Changing Arctic in my hands, my mind associated it to the oxymoronic mantra of almost all Arctic policies and Arctic discussions, promoting a (sustainable) development combined with the protection of an environment, the Arctic, already dealing with catastrophic environmental transformations. In other word, my mind was expecting a book fully advocating for the development of the Arctic shipping industry. My initial luckily feeling was wrong.  In the words of Hildebrand and Brigham, two of the three editors of this book and authors of the conclusions, Hope remains. If we can apply this same precautionary approach [as the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, A/N] to Arctic oil and gas exploration and development, mining, tourism and, especially Arctic marine operations and shipping, we may indeed develop the Arctic in a sustainable way not seen in any of the world’s other oceans.

 

Endnotes

[1] IMO website, retrieved 27 February 2021, https://www.imo.org/en/About/Pages/Default.aspx

[2] Sustainable shipping in a Changing Arctic, Lawrence P. Hinlebrand et al. (ed.), page V.

A. Shibata et al. (eds.), Emerging Legal Orders in the Arctic: The role of non-Arctic actors (London: Routledge, 2019)

There is no doubt that the Arctic is undergoing unprecedented changes. Not only has the Arctic environment been changing at a rapidly fast pace over the last decades, the Arctic has also become a more distinct social, political and legal region. All these ontological changes require more stable norms and institutional frameworks. Based on these premises, Emerging Legal Orders in the Arctic has put together a wide-ranging collection of deeply polar legal research by both familiar names in the field of polar legal studies but also by early-career researchers. As the editors point out at the beginning, this book is the outcome of a symposium held by the Polar Cooperation Research Centre at Kobe University, Japan in December 2017 on the role of non-Arctic states and actors in the Arctic legal order-making. The overarching theme of this book is to explore how, where and to what degree traditional non-Arctic actors, especially Asian States, interact with, influence and shape the creation of the legal order in the Arctic from a normative angle.

Part I of the book aims at giving a contextual understanding of and define the present and future scope of non-Arctic states’ engagement in regional governance with Timo Koivurova’s chapter and the rise of Asian countries, mainly China and Japan, on the Arctic stage. Describing the political and economic contexts of Asian engagement in the Arctic, Tonami points out, in chapter 3, that Asian states mainly pursue economic diplomacy with the aim to both enhance national economic prosperity and use economic leverage to increase domestic political stability. As Asian States’ role in Arctic governance increases, Arctic States expect them to be even engaged within existing institutions such as the AC and contribute to international norm-making in the region. Tonami argues, however, that from an Asian perspective, they are only willing to play this role to the extent that it serves their long-term political and economic agenda. According to her, the rise of Asian States in the region has resulted in a period of contested multilateralism. In chapter 4, Japan’s former ambassador in charge of Arctic affairs, Keiji Ide, analyses Japan’s contribution to the rule of law in the Arctic. He concludes that the challenges presently faced by the Arctic might be too great for Arctic States to deal with on their own. He argues in favour of more involvement and cooperation between both Arctic and non-Arctic states to face the challenges of our times. Taking the example of China and its Arctic policy white paper, Nielsson and Magnússon assesses China’s efforts to create and foster relationships with Arctic partners in order to better understand the region as a whole. According to them, China’s white paper on Arctic policy presents a balanced view between the opportunities for Chinese companies to enhance economic cooperation, the protection of the environment and combatting climate change.

Part II titled “People(s) in the Arctic” is the book’s shortest section with only two chapters. Chapter 6 written by the international chair of the Inuit Circumpolar Council, Dalee Sambo Dorough, argues that any discussion about the legal order in the Arctic should recognise the status and rights of indigenous peoples for whom the Arctic is home.  She emphasises that indigenous peoples are not just stakeholders in Arctic-related matters they are rightsholders in the region. According to her, although they are not Arctic states, non-Arctic States must engage more with Arctic indigenous peoples as they seek to become more involved in the Arctic legal order. Indigenous rights should not only be mentioned in Arctic policies, the status, rights and role of Arctic indigenous peoples should be respected in practice. Dalee Sambo makes some interesting recommendations for non-Arctic actors to better engage with indigenous peoples. To her education in the field of indigenous and human rights, engaging with communities at the local level, engaging outside with indigenous peoples outside of the AC, reaching out to indigenous peoples’ organisation and the AC Permanent Participants, identifying areas of mutual interests both within and outside the AC, being clear and straightforward about their Arctic interests and projects and, advancing research in social sciences and other areas of concerns to Arctic indigenous peoples are all means worth exploring to foster meaningful cooperation. The other chapter in Part II is an assessment of the role of non-governmental organisations (NGO) in influencing the Arctic sealing, whaling and hydrocarbon regimes in the Arctic by Nikolas Sellheim and Marzia Scopelliti.

In Part III on the marine Arctic, Joji Morishita discusses the Arctic Five-plus-Five process that led to the negotiations of the Central Arctic Ocean Fisheries (CAOF) Agreement. Morishita analyses each of the ten countries that took part in this process and takes the readers to the heart of the negotiations of this unique fisheries agreement. Although the Arctic Five (Canada, Kingdom of Denmark, Norway, Russia, and the United States) and the Plus Five (Iceland, Japan, China, Korea, and the EU) have substantial different interests, they share the same objectives regarding how the CAO should be managed according to the precautionary principle to avoid illegal fishing activities. The next chapter by Law of the Sea specialist, Erik J. Molenaar, is an almost-40-page-long masterpiece, which complements and adds another layer of understanding to Morishita’s chapter and provides one of the most in-depth analysis of the CAOF Agreement published thus far. Molenaar gives a concise but thorough overview of how the CAOF Agreement fits into international fisheries law and international law. Towards the end of the chapter, Molenaar also makes a comparative analysis of how participation in the Five-plus-Five process and the CAOF Agreement compares to participation in other RFMO/As. The following two chapters turn their focus on Arctic shipping as Rasmus Gjedssø Bertelsen delves into transnational knowledge network and epistemic communities and Leilei Zou provides a thorough analysis of cooperation between China and Russia in the legislative development of the Northern Sea Route.

Part IV switches gear to focus on scientific cooperation and the Arctic Council. In chapter 12, Akiho Shibata analyses the Arctic Science Cooperation Agreement that entered into force in May 2018 from the perspectives of non-Arctic States. In reviewing this third agreement negotiated under the auspices of the Arctic Council, Shibata assesses to what extend AC Observers States have been able to give substantive inputs at the negotiation stage. In his analysis, Shibata concludes that many pressing Arctic governance issues (e.g. black carbon) cannot be addressed without including non-Arctic actors. One of Part IV’s main themes seems to analyse the evolution of the relationship between AC Observer States and the Arctic Council. In their chapter, Sebastian Knecht and Jennifer Spence show that despite legal equality of all AC Observers, political considerations still play an important role. In the last chapter of the book, Yuanyuan Ren expands on China’s relation with the Arctic Council. According to Ren, China has shown more engagement at the AC level since being granted Observer status in 2013.

The book’s small, and perhaps only, quibble is that most of the chapters focus on non-Arctic States and look at Arctic law-making through a State-centric lens. This can in part be explained, as Sellheim and Scopelliti mention, because international law remains a state-driven process that tends to exclude non-State actors and communities. This seems like a missed opportunity to broaden that scope and to expand on the relation between non-Arctic actors, non-State actors and Arctic indigenous peoples in the context of creating new legal orders in the region. Such quibbles however do not detract from the book’s overall scholarly quality. The exploration of the evolution of the Arctic normative framework and its expansion on the global stage is still very much a work in progress. As the first edited volume in Routledge’s Research in Polar Law series, Emerging Legal Orders in the Arctic provides an in-depth and timely look at how the Arctic legal order is evolving and is a most welcome addition to the literature on international law that will certainly be of value not only to legal scholars involved in polar research but also to those with a broader interest in both Asian studies and region-building in the Arctic.

Donald R. Rothwell, Arctic Ocean Shipping: Navigation, Security and Sovereignty in the North American Arctic (Leiden: Brill, 2018)

The significance of Arctic shipping has long been underestimated because of difficulties associated with navigating through the hostile Arctic environment. This is bound to change for two reasons. Technological advances are giving ships greater capacity to operate in ice-covered waters. Moreover, the reduction of sea-ice is becoming less of a barrier because the hard multi-year ice gives way to thinner first-year ice as a result of climate change. These changes are creating new shipping routes through the Arctic via the Northeast or Northwest Passages and potentially through the central Arctic Ocean via the Bering Strait and the Denmark or Fram Straits. These emerging routes are up to 5,000 nautical miles shorter than alternative routes through the Panama Canal, which explains the growing interest in trans-Arctic shipping and relevant international law.

Arctic Ocean Shipping is a very well written book on important, contemporary, legal and geopolitical issues. It touches upon issues of security and sovereignty but it focuses primarily on rights and obligations relating to navigation in the North American Arctic, and on two state actors, Canada and the United States. Issues are analysed with reference to the United Nations Convention on the Law of the Sea and other relevant legal instruments.

Arctic Ocean Shipping is logically structured and divided into five sections, beginning with an introduction. Section II provides an overview of the “Arctic Ocean Legal Regime”, discussing the applicable international law, sovereignty, shipping, the “Regime of International Straits” and “Arctic Governance”. This includes a particularly interesting analysis of the special considerations concerning sovereignty in the polar regions and suggests that stricter standards of effective occupation might be applied to territorial claims in the Twenty-First Century, due to increased accessibility.

Section III, entitled “Arctic Navigation”, is very intriguing. It deals with “Arctic Navigation Routes”, the “Northwest Passage”, “Bering Strait”, “Arctic Straits and Trans-Arctic Shipping”, “Navigational Rights within the EEZ and High Seas” and “Canadian and US Arctic Rights and Interests”. This section provides an excellent account of navigational routes through the Arctic and their legal status. The rights, interests and policies of Canada and the US are thoroughly explained, with an emphasis on the Northwest Passage and the Bering Strait. Rothwell addresses a contentious issue in a particularly interesting chapter on “The Northwest Passage as an International Strait” where he explains the different positions of Canada and the US concerning the functional requirement of international straits. Reliance upon recorded number of transits would suggest that the Northwest Passage should not qualify as an international strait but a contemporaneous assessment of potential usage suggests the opposite. Recent transits of US vessels through the passage have been subject to an agreement with Canada, making them consensual rather than an exercise of the right of transit passage. This essentially allows the states to peacefully operate without resolving the disagreement. Rothwell does not definitively answer the question, whether emerging routes can qualify as international straits on the basis of potential use. It is an important question which should be relevant for the classification of other routes, such as the Nares strait. However, it will take further usage and involvement of other states to give an unequivocal answer.

Section IV is entitled “Arctic Maritime Security” and it deals with different aspects of “Post 9/11 Global Security Concerns”. This includes chapters on “Terrorism and Counter-Terrorism”, “Port Security”, “Safety of Navigation” and “Maritime Search and Rescue”. The point of this final section is to provide additional context for understanding Arctic policies of Canada and the US. There is not a lot of literature on maritime security in the Arctic so this is a timely contribution. The section gives an overview of the applicable legal instruments but does not consider particular issues in any detail. The monograph ends with “Concluding Remarks” in section V.

Arctic Ocean Shipping is well organised and well written by an exceptionally competent scholar. Yet, two points of criticism will be raised. First, it might have been relevant to include more information on the positions of other states and related issues in the Russian and Scandinavian Arctic for further context and deeper analysis. Second, issues of Arctic sovereignty arguably deserved further attention, given the title of the monograph. For example, it would have been interesting to learn more about the ongoing sovereignty dispute between Denmark and Canada in the Nares Strait.

In conclusion, Arctic Ocean Shipping is strongly recommended. It thoroughly explains the main issues concerning trans-Arctic shipping and does so in an accessible manner. The monograph provides an extensive and very useful overview of the field and is a welcome addition to the literature. The chapter on “Arctic Navigation” is particularly well written and it intriguingly sheds light on ongoing developments and contentious issues. The book is indispensable for lawyers involved with trans-Arctic shipping. Furthermore, it is relevant for all those interested in public international law and the Arctic, or navigational rights generally, and it is recommended for students, academics and practitioners alike.

Little Fish, Big Pond: Icelandic Interests and Influence in Arctic Governance

Introduction

On pretty much any measure of international comparison, Iceland is a little fish. Nevertheless, its geographical location next to the Big Pond that is the Arctic Ocean has put in a position of influence in a region of growing international importance.

In this paper, I will explore Iceland’s influence in the Arctic region based on international relations considerations such as its political alliances; and based on international law: Iceland’s rights and responsibilities.

The paper presents the Arctic Council and Iceland’s role within it before turning to issues that are governed outside of the Arctic Council system, in particular, Arctic fisheries and maritime boundaries. The paper explains Iceland’s approach to Arctic cooperation in light of its published policy documents and explore the tools available to Iceland to defend its interests.

Iceland as a ‘Small State’

Small States seek shelter: usually on a regional basis.[1] They make alliances to advance their objectives and protect themselves from the lions. On hard security issues, Iceland finds this in the folds of NATO. The Arctic Council does not address hard security issues at all – and despite some heated press coverage, Russia is not posing a military threat in the Arctic, to Iceland or anyone else. But Iceland also needs economic and environmental security which it has fostered through Nordic cooperation, EFTA, the EEA and, of increasing importance, the Arctic Council.

International relations provides a number of objective criteria on which to measure a State as ‘small’: population, territory, GDP and military.[2] States may be small by one measure but not by another – for example, having a very large territory but a tiny military; or having a small population but a high GDP.

In a global context, Iceland is very small. Its surface area amounts to less than 0.07% of the Earth’s land; its population less than 0.005% of the World’s; its GDP is under 0.02%. And Iceland has no military as such.

But States are also big or small in a given geopolitical context: the Kingdom of Denmark is a small State in global affairs but not in the Nordic Council. Being ‘small’ or even ‘very small’ is a relative matter rather than an absolute. Therefore although Iceland is a very small State at the international level, within the Arctic Council system, it exerts an influence that belies its small territory, population and economy.

Iceland’s Relative Size in the Arctic Council

‘The Arctic’ has a number of different definitions for different purposes, even within the Arctic Council system itself. For example, the area covered by the sustainable development working group is based on human interests; the protection of the marine environment working group is only concerned with the seas; conservation of arctic flora and fauna is determined by ecosystems. In all cases, Iceland is included in its entirety even if almost all of it sits below the Arctic Circle. By contrast, for the purposes of the Polar Code, agreed through the global International Maritime Organisation (IMO), Iceland is entirely to the South of the protected area: this is based on considerations of the marine conditions – temperature and ice-cover especially.

The Arctic Council consists of the eight States with territory that stretches above the Arctic Circle: Canada, the Kingdom of Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States of America. In addition, there are six permanent participants: these are organisations of indigenous peoples from around the Arctic. Each is transnational in character. Five permanent participants represent peoples that inhabit more than one State: the Aleut International Association, the Arctic Athabaskan Council, Gwich’in Council International, Inuit Circumpolar Council and Saami Council.  The sixth is the Russian Association of Indigenous Peoples of the North and represents over 40 small-numbered indigenous peoples in Northern Russia.

When thinking about small State theory, how ‘small’ is Iceland in the Arctic Council?

Iceland is still very small when territory is considered: it is dwarfed by the Russian and Canadian Arctics. However, when looking at population, Iceland is not far from the average with a population of approximately 330,000 (see Figure 1).

Arctic populations
Figure 1: Arctic populations

However, these figures are based on assuming that the whole of Iceland is ‘Arctic’. This is indeed the position of the Icelandic government and important to securing its legitimate participation in Arctic governance. Foreign Minister Össur Skaphérðinsson stated in his introduction to the Icelandic Arctic Policy statement in 2009 that: “Iceland is the only state that is wholly within the Arctic area, as it is generally understand international affairs or at the Arctic Council.”[3]

The current draft policy, Iceland’s Interests in the Arctic, goes even further and suggests that Iceland is somehow more Arctic than its neighbours – in which the vast majority of the population and the territory (but for the Kingdom of Denmark) lies well south of the 66th parallel.

 

Iceland is unique when we compare it to other nations that are geographically part of the Arctic. Most other countries, aside from Greenland, are predominantly South of the Arctic according to these definitions and their populations live mostly outside of the Arctic.[4]

If we then stop to consider the observers at the Arctic Council, the Iceland once more disappears – over half the World’s population is now represented in some form at the Arctic Council.

Further, it is not just the observer States and intergovernmental fora that make Iceland look little: WWF, observer at the Arctic Council, has a membership in excess of 5 million people. These are not just people who happen by birth to be affiliated to a particular State; these are people who care enough about WWF’s priorities, including its Global Arctic campaign, to pay an annual subscription.

The History of the Arctic Council

So how can Iceland exert its influence at the Arctic Council? And why was it in favour of the great expansion of observers in 2013? To understand this, we need to explore the Arctic Council’s origins and the way it functions today.

In the 1970s and 1980s, the only international interest in the Arctic was how long it would take to fire an intercontinental missile across it. A diligent doctoral student in the 1980s (now a very well-known professor of law of the sea) was told by his supervisor that he was wasting his time writing about the Northern Sea Route!

Iceland invited Gorbachev and Reagan to meet for disarmament talks in Reykjavík in 1986 and although no agreements as such were agreed, it was sufficient – no pun intended – to break the ice.

It was Gorbachev who then came along with the olive branch: the speech at Murmansk in 1987 in which he identified six areas that he saw as ripe for cooperation:

  • A nuclear weapons-free zone in Northern Europe;
  • Reductions and restrictions on naval activity in Northern Europe;
  • Cooperative development of hydrocarbon resources in the Arctic;
  • Scientific cooperation;
  • “Cooperation of the northern countries in environmental protection”; and developing “jointly an integrated comprehensive plan for protecting the natural environment of the North”; and
  • Opening of the Northern Sea Route to international vessels.[5]

Finland seized on this overture and initiated the Rovaniemi Process which in turn led to the Arctic Environmental Protection Strategy (AEPS) in 1991.[6] Pointedly, this initiative was established at a meeting of 8 ministers for the environment, not foreign ministers. The four original working groups, later joined by Sustainable Development and, under the Arctic Council, Arctic Contaminants Action Program (ACAP), are all environmentally oriented.

The transition to the Arctic Council in 1996 was effected through the Ottawa Declaration.[7] This change indicated a much broader range of interests: this was no longer solely a forum for managing shared environmental threats and clean-up activities – it was now, in theory at least, able to address any shared concerns with the explicit exception of military security. According to the Ottawa Declaration, the Arctic Council is established to “provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of Arctic indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic.”[8]

But in 1996, the Arctic Council was still a fairly marginal institution and outside concern with the Arctic did not extend much beyond preservation of polar bears. Even in Iceland, there was little awareness of the Arctic as a geopolitical region as such or Iceland’s place within it. Iceland looked South to Europe and West to North American for trade but it did not really look North.

Between 1996 and 2000, the number of permanent participants rose from two to six and in the early 2000s, there was a slow but gradual increase in the number of observers. Iceland took the rotating chairmanship from 2002-2004; this also happened to be the time when international interest in the Arctic took off. By around 2005, the Arctic was gathering more and more attention in international relations, international law, development, economics and environmental scholarship and activism. The battle lines were being drawn between those that wanted it closed off as an international natural park; and those that wanted to exploit its apparently abundant resources (forgetting, perhaps, that Russia had been exploiting Arctic resources since at least the times of Stalin).

From about 2010 onwards, five rising Asian States, Italy and the European Union were seeking a formal place at the Arctic table: observership at the Arctic Council. This was awarded for the six States in 2013 and effectively for the EU at the same time but followed three years of intense lobbying efforts and heated discussions.[9]

 

The Operation of the Arctic Council and Iceland’s Influence within it

How can Iceland, then, maintain its influence in the shadow of these giants? To understand this, we need to examine how the Arctic Council operates.

The Arctic States are the members of the Arctic Council and the associations of indigenous peoples are permanent participants. This is a unique format for an international body. The Arctic States and permanent participants sit together at Arctic Circle meetings and have equal rights to contribute to the agenda and debate.[10] Decisions are made by consensus between the member States and in practice, usually the consensus of the permanent participants as well.[11]

The Arctic Council operates at a number of levels (see Figure 2). At the top is the biennial ministerial meeting, the location of which coincides with the chairmanship (which changes every two years on a rotating basis). The Senior Arctic Officials (SAOs) are the member States’ ambassadors who meet alongside the permanent participants and observers twice yearly. A number of subsidiary bodies exist, principally the six working groups which are essentially scientific bodies that can present findings to the SAOs and ministerial meeting but whose policy recommendations must be endorsed by the Arctic States. The working groups are standing bodies but there are also time–limited Task Forces which address specific issues and now the Expert Group on Black Carbon.

The Arctic Council
Figure 2: The Arctic Council

Observers at the Arctic Council[12] have much less influence than the members or permanent participants; in short, their role is to ‘observe’ and not to talk. To become and remain an observer, an entity must: bow to Arctic States’ sovereignty; recognize and commit to uphold international law, in particular, the law of the sea in the Arctic; respect the rights of indigenous peoples; demonstrate commitment, including financial commitment, to the work of the permanent participants; and show its capacity to contribute to Arctic interests, including scientific research.[13]

Observers’ have limited rights at Arctic Council meetings and are expected to contribute principally through the working groups.[14] Unlike the member States and the permanent participants, observers may not propose items for the agenda or raise points during Arctic Council meetings (ministerial or SAO meetings) although they are permitted to submit written statements.[15] Even at the subsidiary bodies, the observers are sat apart at the ‘children’s table’, behind the main table and they may speak only after the States and permanent participants have had their say and even then at the discretion of the chair.[16] Observers are also reviewed every four years but can be excluded at any time as their observer status only lasts as long as consensus exists amongst the ministers. In other words, it would require only one member State to exclude an observer.[17] This means that observers cannot exert the influence they have in other international fora within the Arctic Council. To maintain their observerships, they must placate all the Arctic States and most of the permanent participants, most of the time. Iceland might be little but in the Arctic Council it wields a great deal more influence than China.

The Arctic Council punches well above its weight for what is structurally no more than a roundtable for discussion with no law-making powers or compliance mechanisms. Nevertheless, there are two very significant limitations on what it can do. The first is financial: it has no regular funding and seeks contributions on an issue-by-issue basis.[18] This requires States – including observer States – being willing to front cash. Secondly, the consensus model means that it requires only one State to object to anything to take it off the table – whether that be the wording in a recommendation or the initiation of a project in the first place. Iceland can veto anything.

The Arctic Council has also successfully insulated itself from international tensions and disputes that have dampened East-West relations over the past few years such as the crises in the Crimea and Syria. While Iceland ties itself in knots internally over the Russian sanction regime, this is entirely curtained off at the Arctic Council meetings. When tensions have occasionally arisen between Canada and Russia, Iceland can sit back and enjoy the show; it is not forced to take a position. Also, Iceland, having no indigenous peoples of its own, can play the honest broker and be a neutral mediator between the permanent participants and States.

Alliances in the Arctic Council are fluid; there is no obvious ‘Nordic block’ as often occurs at the United Nations and Iceland will defend its own interests on an issue by issue basis. The consensus approach – or the ‘veto’ approach if you prefer – means that fixed alliances are not necessary; no State can be forced into a position that it finds unacceptable.

Beyond the Arctic Council

From Iceland’s perspective, as a very small State, the Arctic Council is a very attractive forum in which to advance its interests. Its official policy, to prioritise the Arctic Council as the key forum, mirrors that of Sweden and Finland, because it is here that the States have the most meaningful influence.[19] A very small State has limited bargaining power in bilateral negotiations with much larger countries; but it also has minimal influence in global fora in which it is outweighed – and outspent – by major powers. Even worse is a forum in which Iceland is not represented at all.

The same consensus-based system that allows Iceland to protect its interests in the Arctic Council allows the other seven States to do the same – and allows them each to keep certain things of the agenda to be dealt with elsewhere. The so-called ‘Arctic Five’ have squeezed out Iceland over two issues: Arctic High Seas fisheries; and the delimitation of the outer continental shelf.

The Arctic Five

Iceland has a small Arctic coastline but it is does not itself border the Arctic Ocean per se. Its exclusive economic zone (EEZ) is met by the Norwegian and Greenlandic EEZ’s in the North. Therefore although Iceland is an ‘Arctic Coastal State’ is it is not an ‘Arctic Ocean littoral State’ – i.e. it does not have a coastline or EEZ that borders the Arctic Ocean.

The Arctic Five – Canada, Denmark, Norway, Russia and the USA – meet occasionally outside of the Arctic Council framework, pushing to one side not only the other three Nordic State partners but the permanent participants as well. The basic justification for this is that the Arctic Ocean is a ‘semi-enclosed sea’ – a debatable claim geographically but one that gives those five States a special responsibility under the Convention on the Law of the Sea to manage the area.[20]

This group met in Oslo in 2007, Ilulissat, Greenland in 2008 and Chelsea, Québec in 2010 to discuss the legal framework for the Arctic Ocean. The Ilulissat meeting culminated in a declaration which was a broad reaffirmation of State sovereignty in the Arctic, an endorsement of the law of the sea as the governing framework for the Arctic Ocean and a message to non-Arctic States that a treaty based on the Antarctic model of environmental protection and internationalization would not be accepted in the North.[21]

Iceland registered its objections and emphasized the importance of the Arctic Council as the principal forum; but the Arctic Council cannot have a monopoly on any topic and nothing can prevent States from meeting and negotiating outside of the Arctic Council system.

The Outer Continental Shelf in the Arctic

The sexy issue in the Arctic today is the grand carve-up of the outer continental shelf. Iceland does not have a stake in this game because it does not have an Arctic coastline. In any case, while it might resemble a colonial land-grab with dramatic flag-planting and grand declarations of sovereignty, the system to resolve and allocate rights over the ocean floor is long settled.[22] It is admittedly slow and laborious but in short: Canada, Russia and Denmark or Greenland will sooner or later sit down and resolve their overlapping map submissions through bilateral negotiations. There is no hurry to do this as all the resources of any near-term commercial interest are far from the contested zones.

In respect of Iceland’s continental shelf, the Dragon Area to the North by Jan Mayen is long settled as a joint development zone with Norway. Iceland has three potential areas of outer continental shelf that are being mapped and of these, the Rockall area to the South is contested as four States (the Kingdom of Denmark (Faroe Islands), Iceland, Ireland and the United Kingdom) jostle for exclusive rights; but this is not an Arctic issue (see Figure 3).[23]

Iceland's maritime zones - The thick black line circling Iceland indicates the boundary of Iceland’s EEZ. The red line to the South indicate Iceland’s maximum potential outer continental shelf around Rockall; the purple, green and yellow lines indicate the submissions of the Kingdom of Denmark (Faroe Islands), the United Kingdom and Ireland respectively.
Figure 3: Iceland’s maritime zones – The thick black line circling Iceland indicates the boundary of Iceland’s EEZ. The red line to the South indicate Iceland’s maximum potential outer continental shelf around Rockall; the purple, green and yellow lines indicate the submissions of the Kingdom of Denmark (Faroe Islands), the United Kingdom and Ireland respectively.

Arctic Fisheries

Fisheries are more interesting but not an immediate concern. Iceland has exclusive rights over fish stocks within its EEZ but it has to manage shared and straggling stocks and highly migratory species in cooperation with neighbouring States (see Figure 3).[24] For the most part, this goes reasonably well though there is an ongoing sore point over the mackerel which has been gradually shifting Northward and Westward and competing with the cod stocks.

There are very good reasons to keep this out of the Arctic Council framework. The European Union is a key player in this dispute and the last thing any of the Arctic States want to do is give the European Union equal standing at the Arctic Council.

More speculative is the future governance of fisheries in the Arctic High Seas (see Figure 4). [25]

The EEZs and High Seas in the Arctic Ocean
The EEZs and High Seas in the Arctic Ocean

Currently, there are no fishing in the Central Arctic Ocean (the High Seas marked dark blue in Figure 4) as it is too far, and mostly ice-covered, to offer commercially exciting fisheries. Existing fisheries are all safely within the 200 nautical mile EEZ of the coasts. They are managed by the Coastal States and various regional fisheries management organisations (RFMOs). The North East Atlantic Fisheries Commission (NEAFC) NEAFC covers a small corner of the High Seas, but otherwise, the Central Arctic Ocean is an international commons.

The Arctic Five have taken the lead – again under protest from Iceland. High Seas are beyond the jurisdiction of any State and under the UN Convention on the Law of the Sea and the Fish Stocks Agreement, to prevent a ‘free-for-all’ and a tragedy of the commons, States with a ‘real interest’ should work together.[26] The difficulty in the Central Arctic Ocean is that there are currently no fisheries and hence it is very difficult to determine who has a ‘real interest’ in the legal sense.

Where the High Seas are concerned, Iceland’s position is that it has just as much interest in the area as the five littoral States; the Arctic Five disagree and began negotiations amongst themselves. This concluded with a moratorium in July 2015 – a temporary ban on Arctic High Seas fishing until such time as scientific studies had evaluated the available stocks and their resiliency.[27]

A moratorium agreed with the Arctic Five cannot bind other States which is why they invited five other entities to a discussion in Washington DC in December 2015 about future governance of living marine resources in the Central Arctic Ocean. The five littoral States attended, alongside five invited participants: The European Union, China, Japan, South Korea and Iceland: the ‘A5+5’.

Russia had expressed scepticism as to the need to include any other States at this point but nonetheless attended the December talks.[28] This indicates the Arctic Five’s recognition that these are all entities with a ‘real interest’ as they are those most likely to have the potential for fisheries in the Central Arctic Ocean. It is also indicative of a view amongst the Arctic Five that no other State or entity has a ‘real interest’ – at least at this time.

Being left on the second tier alongside distant Asian States might be humbling for Iceland but an ‘Arctic Six’ is simply not going to happen. Iceland does have legal interests in the Central Arctic Ocean: but in law, these are no different to those of the EU or China. This is not an urgent matter as there is no immediate economic potential but Iceland nonetheless can be expected to protest any exclusion and to defend the role of the Arctic Council to prevent precedents being set for Arctic governance without its involvement.

 

Arctic Shipping

The last hot topic in the Arctic that is outside of the Arctic Council system is shipping. Freedom of navigation is a fundamental principle of law of the sea that applies right up to States’ baselines. It is a global right that is managed at global fora, in particular, the International Maritime Organization that developed the Polar Code. Iceland has no special legal or commercial interests in the Arctic shipping. .[29] Iceland’s EEZ has no ice-covered waters so it has no extended authority to protect its marine environment beyond that which applies generally under the Convention on the Law of the Sea.[30] But that will not prevent it examining commercial opportunities should commercial shipping develop.

Iceland’s Arctic Policy

The priorities I have identified are reflected in the development of Iceland’s Arctic policies. Increasing governmental attention to the Arctic can be traced at least to the Icelandic chairmanship of the Arctic Council but this section will look only at the official policy formulations from 2009 onwards.

Former Minister of Foreign Affairs, Össur Skarphéðinsson set the ball rolling in 2009 with the report, Iceland in the Arctic.[31] He followed this up by making the Arctic a key theme of his 2010 report to the Alþingi and then sent them a draft to develop into a formal policy (stefna) which the Parliament then took up and agreed with few changes in 2011.[32]

In May 2015, the new government issued a draft for consultation: Iceland’s Interests in the Arctic: Opportunities and Risks, though this has yet to be finalized and the projected date has been repeatedly put back.[33] The current Minister of Foreign Affairs, Gunnar Bragi Sveinsson, put the Arctic once more at centre stage in his 2016 annual report to Parliament.[34]

In all of these, we see an emphasis on multilateral approaches, the importance of the Arctic Council and the assertion of Iceland as an ‘Arctic coastal State’ that is a challenge to the legitimacy of the Arctic Five.

In Skarphéðinsson’s extensive first report, Iceland in the Arctic, international cooperation is the first priority with particular attention on the Arctic Council. However, the Barents-Euro Arctic Council and the West-Nordic region are also mentioned as important fora. In his 2010 report to Parliament on international affairs, the first region to be addressed is the High North and of the ten Arctic priorities, the first is:

to secure Iceland’s position as a coastal state and a key stakeholder in shaping the future development of the High North. Iceland should be considered a full-fledged coastal state on a par with such countries as the USA, Denmark (for Greenland), Canada, Norway and Russia.[35]

 

This repeats an earlier rebuke to the Arctic Five for their exclusion of Iceland but it is also noteworthy that for all Iceland’s talk of the importance of the Arctic Council, it is not unduly concerned about the exclusion of Finland, Sweden or the indigenous representatives from the Arctic Five talks.[36]

Defence of the Arctic Council comes later (Arctic priority 4) but all the priorities point to Iceland’s need for multilateral Arctic governance and the importance of securing of Iceland’s role within it.[37]

Until such time as the current government agrees a new policy, the official Icelandic Arctic policy remains the 2011 Parliamentary Resolution.[38] It largely follows Össur’s 2010 report though one interesting change is that the Alþingi changed the order, placing the Arctic Council first. However, it also highlights Iceland’s special status as a ‘Coastal State within the Arctic Region’ in priority two.[39]

One surprising aspect of the draft of the latest Arctic policy is that it follows much of the previous approaches but makes very little direct reference, perhaps reflecting a desire of the governing coalition parties to present the Arctic as their project.[40] It was these two coalition parties who held the reins when the Arctic first hit the radar of Icelandic politics and who actively pursued increased cooperation and investment in Arctic relations and research. The draft highlights once more Iceland’s Arctic credentials, now suggesting that Iceland is somehow more Arctic than the other States (in which most of the land and population are far South of the Arctic).[41]

International cooperation is still the top priority, especially through Arctic Council.[42] However, other fora are mentioned and special relations with Greenland and the Faroe Islands are promoted.[43]

The opportunities (tækifæri) identified are very much business-focused: new fisheries, hydrocarbons and shipping; climate change is not presented as wholly negative.[44] This is reminiscent of Berit Kristoffersen’s concept of ‘opportunistic adaptation.’[45]

Indigenous peoples are overlooked in the report almost entirely; mentioned only once in the introduction, their rights and interests are ignored throughout, even in areas where proposed Icelandic activities can have serious impacts.

Most recently, in March 2016, the current Minister for Foreign Affairs, Gunnar Bragi Sveinsson, delivered his annual report to Parliament. The Arctic is once more the first region to be assessed. The 2011 Parliament resolution remains the key policy and there is no mention of development of the new strategy document (i.e. Iceland’s Interests in the Arctic).[46]

Sveinsson seeks an increase in Iceland’s contributions to the Arctic Council’s activities, especially at the level of working groups, task forces and expert groups and points to the need to begin preparations for the Icelandic chairmanship that begins in 2019.[47] The Arctic Council’s operations are explained in a fair degree of detail to Parliament (given the habitual nature of such reports) some detail (given the nature of such reports) in the following pages.[48]

West-Nordic cooperation is also given special attention, indicating an interest in promoting further cooperation with the Faroe Islands and Greenland.[49]  This is a region or sub-region that is not given a great deal of attention in international relations but has the potential to grow in importance. In this context, Iceland is the ‘big State’ and the only one of the three countries to have decolonised from the Kingdom of Denmark (so far). However, the West Nordic Council is significantly limited in its activities in the absence of considerable investment: not easy to come by in three very small and cash-strapped countries.

The Arctic High Seas fisheries issue is not addressed directly in the report and no reference is made to the A5+5 December 2015 meeting in Washington DC. (This may have been a matter of the timing of the drafting of the report or it may indicate that the current foreign ministry no longer wishes to continue to fight this battle.) Nevertheless, within the section on Arctic cooperation, Sveinsson obliquely refers to the dependence on marine resources of the Icelandic economy and the importance for Iceland of ‘actively participating in international cooperation concerning ocean affairs’.[50]

Making Sense of Iceland’s Priorities

The official Icelandic approach does not diverge widely from what might be expected from a very small fish beside a very big ocean. Multilateral cooperation is key and the Arctic Council is the preferred forum as it secures Iceland’s influence. Nevertheless, although Iceland objects to the Arctic Five, it would quite happily accept an Arctic Six – as long as it is in it.  Iceland objects to its own exclusion and does not necessarily take a particularly principled stand in defence of broader multilateral cooperation.

However, Iceland has been open to the expansion of observers at the Arctic Council; some of these courted Iceland generously during the application period. Iceland needs its international partners beyond Arctic States but if Iceland can channel them through the Arctic Council, it prevents them from overpowering it.

Iceland continues to assert its interest and demand involvement in fisheries management. Iceland must be practical here and take part in the A5+5 – even if it would prefer an A6+4. The shelf is not so pressing and will be resolved in time. Iceland sees some commercial opportunities in shipping –but this is a very long game and will be managed through the IMO.

The current government’s approach to the Arctic is rather more commercially oriented that its predecessor as it looks to climate change as an opportunity (as well as a risk factor) and seeks to profit from the resources that the receding ice ostensibly presents. Nevertheless, those resources remain very expensive to access and develop irrespective of the state of the ice.

[1] See, eg, Alyson Bailes, Baldur Þórhallsson, and Rachael Lorna Johnstone, “Scotland as an Independent Small State: Where Would It Seek Shelter?,” Stjórnmál og Stjórnsýsla 9, no. 1 (2013).

[2] Ibid, 3.

[3] Össur Skarphéðinsson, Ísland á norðurslóðum, Inngangur, 2009 (translation by present author).

[4] Ministerial Committee on Arctic Affairs, Hagsmunir Íslands á norðurslóðum: tækifæri og viðsjár (draft), March 2015.

[5] Mikhail Gorbachev, Speech at Murmansk, 1st Oct.1987, available at <https://www.google.is/search?q=murmansk+speech&rlz=1C1LENP_enIS499IS499&oq=murmansk+speech&aqs=chrome..69i57j0l3.1838j0j9&sourceid=chrome&ie=UTF-8> (accessed 4 April 2016).

[6] Arctic Environmental Protection Strategy (AEPS), Declaration of the Ministerial Meeting in Alta, Norway, 13 June 1997, available at <http://library.arcticportal.org/1271/> (accessed 4 April 2016).

[7] Ottawa Declaration on the Establishment of the Arctic Council, 19 September 1996, available at < http://library.arcticportal.org/1270/> (accessed 4 April 2016).

[8] Ibid, para. 1a.

[9] Arctic Council, Kiruna Declaration, 15 May 2013, 6, available at <https://oaarchive.arctic-council.org/handle/11374/93> (accessed 4 April 2016).

[10] Arctic Council, Rules of Procedure, as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting, Iqaluit, Canada, revised by the Arctic Council at the Eighth Arctic Council Ministerial Meeting, Kiruna, Sweden, available at <https://oaarchive.arctic-council.org/handle/11374/940> para 19 (accessed 4 April 2016).

[11] Douglas C Nord, The Arctic Council: Governance within the Far North (Routledge 2016) 38 & 70.

[12] United States of America, Department of State, ‘Arctic Council Structure’ <http://www.state.gov/e/oes/ocns/opa/arc/ac/structure/> (accessed 4 April 2016).

[13] Rules of Procedure, supra note 10, Annex 2.

[14] Ibid, Rule 38

[15] Ibid, Rules 12, 19 & 38.

[16] Arctic Council, Observer Manual for Subsidiary Bodies, as adopted by the Arctic Council at the Eighth Ministerial Meeting, Kiruna, Sweden, revised by the Arctic Council Meeting of the SAOs at Anchorage, Alaska, United States of America, October 2015, available at <https://oaarchive.arctic-council.org/handle/11374/939> para 7.3 (accessed 4 April 2016).

[17] Rules of Procedure, supra note 10, Rule 37 and Annex 2, Rule 5.

[18] See, e.g., Nord, supra note 11, 35 & 72-74.

[19] Parliament of Iceland, Þingsályktun um stefnu Íslands í málefnum norðurslóða (2011) 139th legislative session, 28 March 2011.

[20] United Nations Convention on the Law of the Sea 1982, 10 December 1982, 1833 UNTS 397 (UNCLOS), Part IX.

[21] Ilulissat Declaration, Foreign Ministers of Canada, Denmark, Norway, Russia, and the United States of America, The Ilulissat Declaration, 29 May 2008, available at <http://www.arcticgovernance.org/the-ilulissat-declaration.4872424.html> (accessed 4 April 2016).

[22] UNCLOS, supra note 20, Part VI and Annex II.

[23] Icelandic Ministry of Foreign Affairs, ‘Viðræðum fram haldið um Hatton Rockall-málið’ 24 November 2004, available at <https://www.utanrikisraduneyti.is/frettir/nr/2472> (accessed 4 April 2016).

[24] UNCLOS, supra note 20, Part V.

[25] Ron Macnab, Olav Loken and Arvind Anand, ‘The Law of the Sea and Marine Scientific Research in the Arctic Ocean’ Meridian Newsletter (2007-2008) 3, Figure 2 <http://www.polarcom.gc.ca/uploads/Publications/Meridian%20Newsletter/MeridianFall2007.pdf> (accessed 6 April 2016).

[26] UNCLOS, supra note 20, Part V; 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, 4 August 1995, 2167 UNTS 88, article 8(3).

[27] United States Library of Congress, Global Legal Monitor, ‘Canada; Denmark; Norway; Russia; United States: Fishing Declaration Covering Central Arctic’ 21 July 2015, available at <http://www.loc.gov/law/foreign-news/article/canada-denmark-norway-russia-united-states-fishing-declaration-covering-central-arctic/> (accessed 4 April 2016).

[28] United States Department of State, ‘Meeting on High Seas Fisheries in the Central Arctic Ocean: Chairman’s Statement’ 3 December 2015, available at <http://www.state.gov/e/oes/rls/pr/250352.htm> (accessed 4 April 2016).

[29] IMO, ‘Shipping in Polar Waters’ available at < http://www.imo.org/en/MediaCentre/HotTopics/polar/Pages/default.aspx> (accessed 4 April 2016).

[30] UNCLOS, supra note 20, article 234.

[31] Skarphéðinsson, supra note 3.

[32] Skýrsla Össurar Skarphéðinssonar utanríkisráðherra um utanríkis- og alþjóðamál, May 2010; Parliament of Iceland, supra note 19.

[33] Ministerial Committee on Arctic Affairs 2015, supra note 4.

[34] Skýrsla Gunnars Braga Sveinssonar utanríkisráðherra um utanríkis- og alþjóðamál, May 2016.

[35] Skarphépinsson 2010, supra note 32, 15-16.

[36] Ibid, 12

[37] Ibid, 16.

[38] Parliament of Iceland, supra note 19.

[39] Ibid, 1.

[40] Ministerial Committee on Arctic Affairs, supra note 4.

[41] See quotation above, supra note 4.

[42] Ministerial Committee on Arctic Affairs, supra note 4, 6-8.

[43] Ibid, 8.

[44] Ibid, Chapters 2 & 3.

[45] Berit Kristoffersen, ‘Opportunistic Adaptation: New Discourses on Oil, Equity, and Environmental Security’ in The Adaptive Challenge of Climate Change, Karen O’Brien and Elin Selboe (Eds) (Cambridge University Press 2015).

[46] Sveinsson 2016, supra note 34, Chapter 2.

[47] Ibid, 12.

[48] Ibid, 13-14.

[49] Ibid, 14.

[50] Ibid, 12.