Arctic Yearbook 2015 - Page 217

217 Arctic Yearbook 2015 Difficulties arise from the diversification and expansion of international law (Koskenniemi 2006) and this is particularly true for environmental conventions and protocols. When it comes to offshore exploitation, no international agreement with all the Arctic states as parties exist, but international rules and international or regional agreements apply to the Arctic region (e.g. with regard to pollution caused by shipping: MARPOL 73/78, the International Convention for the Prevention of Pollution from Ships and the Polar Code). This situation leads to the issue of fragmentation of law, geographically or functionally limited treaty systems potentially creating not only gaps but also problems of consistency. The UNCLOS provides applicable legal principles which are fairly general and vague (Koivurova & Hossain 2008), the OSPAR convention for the protection of the marine environment of the Northeast Atlantic covers pollution from offshore sources (article 5), but geographically it only covers the North-East Atlantic (and half of Greenland). It is ratified by three of the European Arctic states (Norway, Iceland and Denmark including Greenland), but Russia is not a party. Another example of the limited duties ascribed to state parties is the International Convention on Oil Pollution Preparedness, Response and Co-operation 1990 (OPRC) which does not require that states meet minimal requirements concerning t he positioning and deployment of oil spill equipment and personnel (Byers & Stoller 2013). The issue of international law and offshore hydrocarbon activities has been well documented (Johnstone 2015, Byers 2013). This includes the issue of ratification – for instance the Espoo Convention that sets out the obligations of parties to assess the environmental impact of activities at an early stage of planning is poorly ratified in the Arctic – or legal uncertainties pertaining to sovereign rights claims (in Svalbard or the Beaufort Sea for instance). I will thus focus on recent treaties. The Agreement on Co-operation on Marine Oil Pollution Preparedness and Response (2013) signed by the Arctic states and the Faroe Islands under the auspices of the Arctic Council stands as an essential agreement for a coordinated response between Arctic states. It is yet considered a “weak and incomplete response” to the risks associated with Arctic offshore oil (Byers & Stoller 2013) on the grounds that it does not create any new obligations to existing regulations. In addition, the implementation of the agreement is subject to the capabilities of the parties to the agreement and the availability of relevant resources (article 15). A state could thus meet its obligations of due diligence without spending the funds necessary for actual preparedness. Moreover, the outcome of disputes between parties under the agreement is basically unenforceable: indeed, disputes arising between states “shall be settled by direct consultations”; “no weaker provision could have been drafted” (Johnstone 2015: 161). The adoption of the Polar Code (International Code for Ships Operating in Polar Waters 2015) by the IMO in May 2015 leaves some uncertainties. What happens when the regulation is less strict than domestic norms? For instance, the carriage and use of heavy fuel, which is banned in Antarctica (regulation 43 of MARPOL Annex I) is not banned in the Arctic, where shipping activity has increased in the Northern Sea Route. A recommendation in the Polar Code “encourages the application of regulation 43 in Arctic waters” (Polar Code 2014).3 Norway imposes a ban on the use of heavy fuel oil in some areas around Svalbard (AECO 2015). The new EU Directive (2012/33/EU) as regards the sulphur content of marine fuels4 follows the MARPOL Annex VI to reduce the transport of heavy Cécile Pelaudeix