Arctic Oil Spill Intervention: In Search of an Integrated Approach for the High Seas

Abstract

Article 86 of the United Nations Convention on the Law of the Sea (UNCLOS) defines the high seas as all parts of the sea excluding internal waters, territorial sea, exclusive economic zone and archipelagic waters belonging to an archipelagic state. The high seas, as such, are considered to be res communis, and can be enjoyed by any state (Through the freedoms to fish, navigate, lay submarine cables, research etc.). The notion of res communis has preceded today’s concept of public domain and provides a sense of undisturbed entitlement to the shipping industry, which in recent years has translated into a dramatic increase in navigation and trans-Arctic shipping. For the Arctic, shorter sea-routes and trans-Arctic shipping across the high seas of the Arctic raises significant governance issues. One such issue relates to oil spills and oil spill preparedness and response for the Arctic. Following the Torrey Canyon disaster in 1967, the shipping industry has witnessed a significant number of oil spills and severe damage to the marine environment. Owing to the fact that a coastal state’s authority to regulate foreign shipping does not extend to the high seas, transiting ships would only be subject to international shipping safety and the environmental rules and standards (UNCLOS; Art. 211 (1)). For the high seas there exists a corpus of international law, i.e. the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 (Intervention Convention). But the inevitable question is to what extent can the Intervention Convention provide an effective framework to deal with oil pollution response in the Arctic high seas? Or do the Arctic high seas require an integrated approach, which can link together differing agendas and mandates of the Arctic States in trying to deal with the impacts of an oil spill disaster? This approach is analogous to the European Union initiatives reflected in various “macro-regional strategies”, and would be similar to the North American (US-Can) joint preparedness agreements for oil spills response. The operative word in the proposed paper is “intervention”, which can be contrasted with “prevention” that usually runs to the conclusion of remediation efforts after an oil spill. Although related to response, intervention would occur the very moment a national authority is advised of an incident in progress that has the potential for a spill (e.g. a vessel in distress with a developing leak). This definition is guided by the fact that the Arctic is a pristine area, and for pristine areas there ought to be advanced intervention rules to stop all types of vessel-source oil pollution at the source. This goes beyond the given international oil spill prevention and response regime. The effort is to realize whether an integrated intervention plan for the Arctic high seas can bring the stakeholders together and form an alliance to save the pristine high sea areas from oil spill disasters in areas beyond national jurisdiction.