1

Critical Analysis of International, Regional and National

Instruments Corresponding to Voluntary Vessel-Pollution in
the Arctic: Addressing the Need and the Barriers for
Developing Effective Marine Protected Areas to Balance
Protection of Marine Environment and Commercial
Exploitation


Tafsir Matin Johansson












January , 2012













2
Table of contents



1 Introduction : Background, Delimitation and Objectives ..........................................................3
2 International Regulations, Regional Conventions and National Legislations on Voluntary Ship
Source Pollution in the Arctic Area.............................................................................................3
2.1 Arctic under LOSC and Relevant IMO Guidelines..............................................................3
2.2 Brief Analysis of LC72 and Corresponding Arctic National Laws on Marine Dumping....4
2.2.1 Analysing OSPAR: Arctic Regional Instrument on Marine Dumping..........................5
2.3 Rules Governing Operational Discharge Under MARPOL 73/78.........................................6
2.3.1 National legislations of Arctic States Corresponding to MARPOL 73/78.....................8
3 Addressing the Need and the Barriers for Developing Effective MPAs to Balance Protection
of Marine Environment and Commercial Exploitation.............................................................9
3.1 Need to Develop multiple user MPA via Circumpolar Network..........................................9
3.2 Refinement of Existing International Regimes Escorted by Effective National Legislation....10
3.3 Arctic vs. Antarctic...................................................................................................................12
3.4 Recommendations: Hard law vs. Soft law..............................................................................12
4 Conclusion......................................................................................................................................13
Bibliography.................................................................................................................................14
3
1 Introduction : Background, Delimitation and Objectives
Rapid climate change caused by global warming will over the next few decades transform the Arctic
Ocean from an impassable area into a seasonal navigable sea. The augmentation of intra- and trans-
Arctic shipping in this pristine area poses a threat of peril to the marine environment and its living
resources. With a view to diminishing these risks counteractive measures have been adopted
simultaneously under International and national laws as regards to ascertaining safety of navigation
and preventing accidental pollution from vessels in the Arctic. Although the limelight has been cast on
accidental vessel-pollution and navigational safety, deliberate dumping and operational discharge as a
vessel-source pollution is considered to be more detrimental in this part of the globe.
1
It seems that the
International, regional and national instruments already exist which gives reference to protected
areas to safeguard the pristine environment from voluntary vessel-pollution without any indication to
the Arctic. But the expanding International shipping through the Arctic will confront the inadequacy of
the existing regimes of protected areas among other issues. Hence, the Arctic region remains to be
vulnerable due to the absence of legally-binding law which focuses on the establishment of protected
areas, the aim of which is to strike a balance between safeguarding the marine ecosystem and
commercial exploitation.
This essay does not extend to the legal analysis of accidental spill and is confined to deliberate
dumping and operational discharge. This essay serves the purpose of analysing the International,
regional and domestic regulations that deal with those voluntary vessel-pollutions and protected
areas, identifying the gaps and suggesting refinement of existing regulatory regimes and necessary
implementation of hard law corresponding to those regimes in an Arctic perspective. An attempt is
made throughout the essay in answering questions as to what are the existing International and
regulatory regimes of voluntary vessel-pollution, to what extent the existing regional and domestic
regulations comply with them, how can protected areas be established in Coastal Areas and Areas
beyond National Jurisdiction under the current regimes, what are the gaps in these regimes, how can
these gaps be addressed, can any area in the Arctic be designated as protected area, how can these
areas balance environmental and commercial interests, in this context should there be hard law or
soft law. Finally, suggestions are highlighted as concluding remarks.

2 International Regulations, Regional Conventions and National Legislations on Voluntary Ship
Source Pollution in the Arctic Area.
2.1 Arctic under LOSC and Relevant IMO Guidelines.

1
Douglas Brubaker, Marine Pollution and International Law: Principles and Practice, London, Belhaven Press,
1993, p.11.
4
The definition of Arctic varies from one Arctic State to another.
2
Article 234 of the United Nations
Conference on Law of the Sea, 1982 (hereby, referred to as LOSC)
3
which denotes a definition for
identifying of zones inferring Ice-Covered areas comprises lex Specialis as regards to confining the
Coastal States jurisdiction and furnishing preventive and enforcement jurisdiction for prevention,
reduction and control of marine pollution from vessels in ice-covered areas. International Maritime
Organization (hereby, referred to as IMO) supplements a definition of Arctic Waters in provision G-
3.3 and G-3.5 of the Guidelines for ships operating in the Polar Water.
4
However, these ice covered
areas coincide with zones of essential importance for intra- and trans-Arctic navigation in the Northwest
Passage and Northern Sea Route. Catalyst elements for the development of navigation and the
classification of vessels
5
operating in the Arctic marine areas were demonstrated by Arctic Councils
working group for Protection of Arctic Marine Environment (hereby, referred to as PAME) in the 2009
Arctic Marine Shipping Assessment (AMSA) Report. A general assumption has been laid down as to the
increase of ship traffic in the Arctic which these vessels in its ordinary operation will voluntarily dump and
discharge elements to the detriment of the Arctic pristine environment.

2.2 Brief Analysis of LC72 and Corresponding Arctic National Laws on Marine Dumping.
The LOSC (regulatory law) is appropriate in a general, rather than a precise sense to address ocean
dumping issues in the Arctic and sets forth a global framework for ocean dumping.
6
The provisions of
LOSC which relate to pollution from ocean dumping are Articles 1(1) (5), 210 and 216 where Article 210
presumably refers to LC72 and its Annexes indicating the fact that national regulations shall be no less
operative than the rules and standards set globally. The London Convention 1972 (hereby, referred to as
LC72) is a pertinent and comprehensive instrument to address ocean dumping in the Arctic which relates to

2
Note that the basic definition of the Arctic as the areas lying north of the Arctic Circle at 6633 north
latitude.
3
Section 8: Ice Covered Areas of the United Nations Convention on the Law of the Sea, 1982 accessed at
<http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf> (date accessed 6 December
2011). Note that, the explicated analysis of the National Snow and Ice Data Centre monthly sea ice extent index
charts for the year of 2009, it is inferable that areas currently qualifying under article 234 of the LOSC (to what
concerns ice coverage for most of the year) correspond to the Canadian Maritime Arctic, Russian Federation
Maritime Arctic and Greenland/Denmark, Alaska in United States of America, northern part of Svalbard in
Norway and the high seas.
4
Guidelines for Ships Operating in Polar Waters, adopted by IMO Assembly Resolution A.1024 (26), 2
December 2009 (which is a non-legally binding instrument), Accessed at
<http://www.imo.org/Publications/Documents/Attachments/Pages%20from%20E190E.pdf > (date accessed 6
December 2011), Note that G-3.3 is pertinent in the context of navigation and G-3.5 substantiates that Ice-
covered waters means polar waters where local ice conditions present a structural risk to a ship
5
Arctic Council; Arctic Marine Shipping Assessment Report (AMSA) 2009 Report, April 2009, second printing,
Table 5.2, AMSA vessel categories, p. 72, Note that vessels operating in the Arctic marine areas comprise of
bulk carriers, container ships, general cargo ships and fishing vessels represent the majority.
6
PAME: Working Group on the Protection of the Arctic Marine Environment, Report to the Third Ministerial
Conference on the Protection of the Arctic Environment, 20-21 March 1996 Inuvik, Canada, Ministry of
Environment, p. 95, Note that the Convention provides minimum standards for contracting parties in that
domestic laws, regulations and measures shall be no less effective in preventing, reducing and controlling
pollution from ocean dumping than the global rules and standards.
5
ocean dumping and incineration. The five Arctic countries are parties to the LC72 and have implemented it
domestically whereby the Russian Federation and the United States of America are not parties to the
protocol of 1996.
7
Canada fulfills its international obligations, in part, through Part 7, Division 3
(Disposal at Sea) of the Canadian Environmental Protection Act, 1999. The United States of America
has adopted Ocean Dumping Act, codified as titles I and II of the Marine Protection, Research and
Sanctuaries Act of 1972, 33 U.S.C. (paragraph 1401 et seq.). Then again, Swedens Law 1971:1154 on
Prohibition of Dumping on Wastes at Sea (pp. 1-3) is a conforming national law in this regard. LC72
is applicable to all marine waters outside internal waters and sets a minimum standard for all States on
the basis of categories of pollutants and a system of permits for those substances permissible for
dumping.
8
Annex I of LC72 consists of pollutants which are prohibited to be dumped, Annex II
determines a list for which special care and permit are required and Annex III requires a general
permit which establishes considerations as to the characteristics and composition of the matter coupled
with dumping site and possible effects of dumping. Although LC72 has displayed competency to
accommodate new expansion through these flexible Annex structures, it lacks a formal non-
compliance procedure and no action has been taken to improve liability procedures. Non-acceptance
of LC72 ban on low level radioactive waste dumping by the Russian Federation portrays a substantial
gap in conformability relevant to protecting the Arctic environment although the Russian Federations
Federal State Programme has implemented national regulation.
9
Then again, Regional agreements as
indicated in LC72 is non-existent as the Arctic States have not endeavoured in incorporating strict
compliance and monitoring systems and the free flow of information throughout the region.

2.2.1 Analysing OSPAR: Arctic Regional Instrument on Marine Dumping.
The 1992 Convention for the Protection of the Marine Environment of the North-East Environment of the
North-East Atlantic (hereby, referred to as OSPAR) is a regional instrument which aims to amalgamate the
Oslo Convention and the Convention for the Prevention of Marine Pollution from Land-based Sources
(Paris Convention), whereby Annex II deals with prevention and elimination of pollution by dumping or
incineration.
10
OSPAR expressly includes a definition of internal waters and embodies such waters within
maritime area where the Convention applies.
11
Although OSPAR addresses two primary concerns
corresponding to ocean dumping of radioactive wastes and the dumping of dredged material, the main

7
Collected from the official website of International Maritime Organization, accessed at
<http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx> (date accessed 7
December 2011)
8
Ibid.
9
Ibid.
10
Official Website of OSPAR COMMISSION, accessed at
<http://www.ospar.org/content/content.asp?menu=00340108070000_000000_000000> (date accessed 6
December 2011).
11
Ibid.
6
drawback of the convention is that it covers only a part of the Arctic marine environment. Since
OSPAR has membership different from the Arctic region, countries with no national interest in the
Arctic region may influence in decision making not unique to specific Arctic concerns.
12
The three
Arctic non-signatories possess jurisdiction over an extensive regime of the marine environment and a
complex situation may arise where these States would separate the Arctic regime in their domestic
environmental legislations. Moreover, it relies on the domestic administrations to prevent and punish
conduct that contravenes the Convention. Since Denmark and Norway are the only Arctic States which
are parties to this Convention, it is impossible to implement the provisions or policies of this regional
instrument on non-contracting States. In addition, there is no means of monitoring the domestic
administrations for strict compliance of its regulations and as a result protective measures cannot be
ensured against illegal dumping in the Arctic waters.

2.3 Rules Governing Operational Discharge Under MARPOL 73/78.
Part XII of LOSC underlines the general jurisdictional provisions for the regulation of operational
discharge and narrows down Coastal States prescriptive and enforcement jurisdiction.
13
Article 211(2)
determines the prescriptive jurisdiction of the flag State to adopt laws and regulations for the prevention,
reduction and control of vessel source pollution whereby, those laws and regulations shall at least have the
same effect of generally acceptable rules and standards established via competent International

12
Supra note 10, p. 105.
13
Supra note 5, Note that Article 194 (3) (B) gives reference to adopting measures against pollution from vessels
against intentional or unintentional discharges and Article 194(5) provides special reference to assume measures
to protect and preserve rare or fragile ecosystems, a term which includes the Arctic owing to the fact of its
undefiled characteristics. Article 211 (6) (C) empowers the Coastal State to adopt additional laws in respect of
vessel discharges for the same area and communicate it to the aforesaid Organizations. The enforcement of
those laws and regulations has been laid down in Article 217(1) where flag states are under an obligation to
ensure compliance of those applicable norms of International rules. Under the Coastal State jurisdiction, the
Coastal State enjoys sovereignty in internal waters [Article 2] subject to rendering due publicity of requirements
for the prevention, reduction and control of marine pollution and communicating such requirements to the
competent International Organization [Article 211(3)]. Under Article 21(1) (f) and 211(4), the Coastal States
prescriptive jurisdiction in the territorial sea has been confined to the obligation of providing innocent passage
and to that extent, to adopt laws and regulations conforming to rules of International law for the prevention,
reduction and control of marine pollution which will not hamper such innocent passage. The enforcement
jurisdiction of a Coastal State in the territorial sea is limited only to the circumstances where there is a clear
ground that the vessel during innocent passage has violated the laws and regulations which are in conformity
with International rules and standards [Article 220(2)]. As regards to prescriptive jurisdiction in the Exclusive
Economic Zone, Article 211(5) enunciates that the Coastal State may adopt regulations subject to conformity
with International rules and standards established by competent International Organization. Then again, Article
234 governs coastal states rights to adopt and enforce laws and regulations for the prevention, reduction and
control of marine pollution from vessels in ice-covered areas within the EEZ. Article 211(6) further provides
that where the International rules and standards are insufficient to meet special circumstances, the Coastal State
may in respect of Exclusive Economic Zone adopt mandatory measures subject to consultation procedure with
competent International Organization. Enforcement of regulations in the Exclusive Economic Zone has been
laid down in Article 220(3) and (5) where the vessel is under an obligation to produce relevant documents and
where there is a clear ground of violation the Coastal State may undertake physical inspection. Article 220(6)
provides for more stringent measures i.e. institute proceedings including arrest of vessels where there is clear
objective evidence as regards to the violation.
7
Organizations. Reference as regards to competent International Organizations may be drawn to IMO. IMO
plays a significant role in the manoeuvring of LOSC provisions and has attempted to harmonize
requirements as regards to operational discharge standards. International Convention for the
Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978 (hereby, referred to
MARPOL 73/78) contains in its Annexes restrictions as regards to voluntary discharge from vessels.
14

Annexes I, II and V paves the way for the possibility to establish areas designated as Special Areas
and Sox emission control areas where the particular sensitivity justifies the application of more
stringent discharge and emission standards. The number of ratifications
15
of MARPOL 73/78 Annexes
by Arctic countries refers to the assiduity to harmonize discharge and emission standards. However,
the discharge of oil from machinery spaces of all ships which is regulated by regulation 15 (Annex I)
restricts the discharge of any amount in the Antarctic from ships less than 400 Gross Tonnage unless it
complies with Regulation 15-C, but does not provide special attention to the Arctic Ocean. Similarly,
Annex II (Discharge of Noxious Liquid Substance) and Annex V (Disposal of Garbage) does not
consider Arctic to be a part of Special Area as opposed to Antarctic where operational discharges are
unauthorized. Whereas Canada and the Russian Federation have adopted stringent regulation under the
terms of Article 234 of the LOSC in the Arctic north of 60 N latitude, Canada has deliberately
precluded MARPOL 73/78 for those areas.
16
In addition to the provisions and standards of MARPOL
73/78 applicable in ice-covered areas those States require the compliance of stricter standard. Unlike
the Antarctica, there is an absence of designated areas i.e. special area or Sox emission control area
for the purposes of special protection under MARPOL 73/78. These nominated areas would strengthen
the protection of the marine environment in Arctic ice-covered areas specifically in those lying in
Areas beyond national jurisdiction. Then again, these issues that have not been covered by MARPOL
73/78 have not been necessarily addressed in the Polar Shipping Guidelines.
17
Compliance with

14
International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of
1978, entered into force on 2 October 1983, Whereby, Annex I deals with prevention of pollution by oil, Annex
II on control of pollution by noxious liquid substances in bulk, Annex IV on prevention of pollution by sewage
from ships, Annex V on prevention of pollution by garbage from ships and Annex VI on the prevention of air
pollution from ships. Note that MARPOL 73/78 deals with regulating the discharges of harmful substances from
ships. The term discharge covers any means of release such as disposal, spilling, leaking, pumping, emitting
and emptying, but does not include dumping in the meaning of the London Convention.
15
Note that All the Arctic countries are signatories to MARPOL 73/78.
16
Bill C-3: An Act to Amend the Arctic Waters Pollution Prevention Act, Legislative Summary, LS-617E, Penny
Becklumb Industry, Infrastructure and Resources Division, 19 December 2008, Accessed at
<http://www.parl.gc.ca/Content/LOP/LegislativeSummaries/40/1/401c3-e.pdf> (date accessed 8 December
2011).
17
Supra note 6, Note that the non-legal binding nature and limited regulation of environmental protection
imposes no obligation on the States as regards to vessel-source pollution and special-particularities in the ice-
covered areas.
8
MARPOL 73/78 maybe traced back to Arctic Environmental Protection Strategy
18
where reference
has been drawn to MARPOL 73/78 to ensure that States maintain those standards while operating in
Polar Waters.
19
Similar endorsement to MARPOL 73/78 is observed in the earlier drafts of the Polar
Code, where its preamble states that the Polar Code is not intended to replace other requirements for
ships operating in the Arctic waters.
20


2.3.1 National legislations of Arctic States Corresponding to MARPOL 73/78.
The Arctic Environment Protection Strategy and the Arctic Council are enterprising on the region-
wide and inter-governmental level. A number of host of diverse Organizations have proliferated who
are active on different level.
21
When it comes to operational discharge of vessels, it seems that there
are ranges of interrelated and coinciding treaties active at various levels. However, underneath all the
layers of International regulations and regional co-operation lies the purely national layer of
enactments which gives effect to the former. The United States of America has adopted the Act to
Prevent Pollution from Ships
22
which is an enactment of MARPOL 73/78. Then again, the operation
and response in the Arctic State of Alaska is governed by the Alaska Oil and Hazardous Substances
Pollution Control Act
23
and the Alaska Environmental Conservation Act
24
. Under Norwegian
legislation the 1903 Seaworthiness Act (which applies to Norwegian ships) comprises pertinent
regulations which has substantially incorporated MARPOL 73/78 and later been replaced by the
Maritime Safety Act
25
. Sweden as a part of the Arctic Council has executed legislation to give effect to
its obligations pursuant to MARPOL 73/78. The Act relative to measures against pollution caused by
ships
26
embodies restrictions on the context of oil discharge in Sweden. The Arctic Waters Pollution
Prevention Act
27
, subsequent regulations
28
and policies
29
enacted by Canada remains till date to be the

18
Arctic Environmental Protection Strategy (AEPS) is the predecessor of the Arctic Council, established in
Rovaniemi Finland in 1991. The Alta Declaration is the last AEPS declaration before the formal establishment
of the Arctic Council.
19
Davor Vidas, Protecting the polar marine environment: law and policy for pollution prevention, Fridtjof
Nansen, Norway, November 2000, p. 75.
20
Ibid, Note that the provisions of the Polar Code are meant to be used in addition to any other applicable code
or Convention (MARPOL 73/78).
21
Note that of the various bodies that exist under the Arctic Environment Protection Strategy and the Arctic
Council, the Protection of the Arctic Marine Environment working group is the one most focused on marine
environmental issues. Then again, The Marine Environment Protection Committee at its 48
th
session (October
2002) and the MSC, at its 76th session (December 2002), approved the recommendatory Guidelines for Ships
Operating in Arctic Ice-covered Waters.
22
33 United States Codes 19011903.
23
Edgar Gold, Gard Handbook on Protection of the Marine Environment, Third Edition, Arendal, 2006, p. 369.
24
Ibid.
25
Implemented by the authority of the Act No. 9, 16 February 2007 on maritime safety (the Maritime Safety
Act).
26
Original title: Lag (1980:424) om tgrder mot frorening frn fartyg, Consolidated version of Act No. 424 of
1980 as amended last by SFS 2006:1318.
27
(R.S., 1985, c. A-12).
9
most notable example of national enactments and considered as a functional approach via unilateral
action since it promotes zero discharge policy which states no person shall deposit or permit the
deposit of waste of any type in the Arctic waters. The Danish regime of operational discharge relates
to the statutory framework of Marine Environment Act, 1993
30
. This act provides a blueprint for
incorporating general and regional treaty instruments into Danish law and chapter 2 of this act
implements the rules of MARPOL 73/78 concerning operational oil discharge.

3 Addressing the Need and the Barriers for Developing Effective MPAs to Balance Protection
of Marine Environment and Commercial Exploitation.
3.1 Need to Develop multiple user MPA via Circumpolar Network.
Marine Protected Areas (hereby, referred to as MPA) are at the cutting edge of environment protection
against voluntary vessel-pollution. This term however, has become a legal clich and the areas so
labelled may have contrasting degrees of protection varying from fully protected reserves to areas that
allow commercial user activities within and beyond national jurisdiction. Although the International
dictators of environmental policies suggest strict protected MPAs at a regional level for the Arctic, such
notion in terms of the Arctic route which halves the distance between Far East and Europe cannot be
implemented due to objections which will be raised from the International shipping community who seek
commercial interest by saving time using those routes. The Arctic requires a multiple user MPA in
coastal and offshore environments resulting in that a single MPA can comprise a mosaic of management
coupled with restriction categories in terms of voluntary marine-pollution. The primary responsibility for
the designation of MPAs falls to individual States enacting specific legislations, but the Arctic area also
requires MPAs beyond national jurisdiction which will be the focal point of commercial exploitation.
Although MPAs provide a wide range of application, it must be acknowledged that they do not provide
sufficient protection against all threats resulting from voluntary vessel-pollution. Aldo Chircop has
addressed many of the current MPAs as desktop MPAs and hence, in considering a strict protected area

28
Regulations include, Regulations include, Arctic Shipping Pollution Prevention Regulations (C.R.C., c. 353),
Arctic Waters Experimental Pollution Regulations, 1978 (SOR/78-417), Arctic Waters Experimental Pollution
Regulations, 1979 (SOR/80-9), Arctic Waters Experimental Pollution Regulations, 1982 (SOR/82-276), Arctic
Waters Experimental Pollution Regulations, 1982 (Dome Petroleum) (SOR/82-832), Arctic Waters Pollution
Prevention Regulations (C.R.C., c. 354).
29
Donald R. Rothwell and Christopher C. Joyner, Domestic perspectives and regulations in protecting the polar
marine environment: Australia, Canada and the United States in Protecting the Polar Marine Environment,
Davor Vidas (editor), Cambridge University Press, 2000, p. 150, where it is stated that the Arctic Marine
Conservation Strategy, which was developed in the late 1980s laid down a number of key principles, such as for
example the conservation and protection of Arctic marine waters and renewable resources for the benefit and
enjoyment of present and future generations, as well as the importance of an ecosystem approach and integrated
management of renewable and non-renewable resources
30
Act No. 476/1993.
10
in the Arctic would not be of pragmatic value.
31
The subsequent question arises as to whether any
marine area in coastal or offshore environment of the Arctic should be designated as protected areas
similar to the Antarctic.
32
According to Simon Jennings, the term protected areas are currently being
used as areas where there have been measurable changes in human pressure
33
rather than a
geographically defined area which is designated or regulated and managed to achieve specific
conservation objectives.
34
Human pressure in this instance can be referred to the routes through
which future commercial navigation shall take place at a very fast pace creating pressure on the marine
environment through intensive dumping and operational discharges. Taking this into account and to
designate any marine area in the coastal or offshore environments and Areas Beyond National
Jurisdiction as MPA there needs to be a development of a circumpolar network in the Arctic which is
complicated because of the mix of national and International agencies and jurisdictions with
responsibilities in the region. In the Antarctic, the Antarctic Treaty Consultative Parties have estimated
the areas where measurable changes have been caused due to human pressure and designated MPAs
around sub-Antarctic islands within the greater Antarctic region.
35
The Arctic States have to
endeavour to establish a jointly agreed and coordinated network of protected areas where consistent if
not identical rules for conservation and access will have to be formally implemented. Currently there
are no representative channels of Marine Protected Areas in most or all of the Arctic marine area.

3.2 Refinement of Existing International Regimes Escorted by Effective National Legislation.
Whereas, an appreciable land area in the Arctic region falls under various conservation and protection
regimes, less than 1 percent of the marine coastal areas are currently safeguarded.
36
Multifarious

31
Suzanne Lalonde, A Network of Marine Protected Areas in the Arctic: Promises and Challenges in Changes
in The Arctic Environment And The Law Of The Sea, Edited by Myron H. Nordquist, John Norton Moore and
Tomas H. Heidar, , Center for Oceans Law and Policy, 2010, IDC Publishers, Martinus Nijhoff Publishers and
VSP, p. 140. See also, Antarctic Treaty Consultative Meeting, Designation of Marine Protected Areas within the
Antarctic Treaty Area, Information Paper Submitted by ASOC to ATCM XXXI (ATCM Agenda Item 5),
Kyiv,2-13 June 2008, Ukraine, accessed at
<http://www.asoc.org/storage/documents/Meetings/ATCM/XXXI/ASOC_IP_on_MPAs_051808_final-1.pdf>
(date accessed 15 December 2011), where it is stated that Antarctic Treaty Consultative Parties have not in fact
delivered on the promise of the Protocol, and that 17 years after the adoption of the Protocol, and closing on the
50th Anniversary of the adoption of the Antarctic Treaty, in the face of real and substantial pressures on the
Antarctic marine environment there is urgency to rectify this.
32
Ibid.
33
Commissioner of the Environment and Sustainable Development, Report of the Commissioner of the
Environment and Sustainable Development to the House of Commons, Chapter 1, Fisheries and Oceans
Canada-Canadas Oceans Management Strategy (Ottawa, Office of the Auditor General, 2005), p.2.
34
Article 2 of the Convention on Biological Diversity, United Nations, 1992, accessed at
< http://old.cbd.int/doc/legal/cbd-en.pdf> (date accessed 15 December 2011), Note that this definition produces
vagueness and introduces criteria that work against effective management of protected areas and even
biodiversity conservation and can be interpreted to consider a site a protected area if it is either designated, or
regulated and managed
35
Supra note 36, p. 5, para. 2.
36
Supra Note 35, United Nations Environment Programme, Vital Arctic Graphics: Protected Areas in the Arctic
2002-the Coastal Marine Deficit, available at <http://grida.no/publications/vg/Arctic/page/2675.aspx> (date
11
International legal instruments i.e. LOSC, the UN Fish Stocks Agreement, the Convention on Biological
Diversity etc. governs the protection of Arctics diverse bio-system including establishing protected
areas.
37
Till date initiatives have been taken without any functional approach. Part XII of LOSC establishes
a framework for development of conservation and management where contracting States are obliged to
undertake measures relating to marine resources by nations within national and International areas. This
obligation is viewed as a duty to implement legislations that relates to protected areas, little is said on
how this goal is to be achieved. LC72 lacks strict compliance procedures and relies too heavily on
domestic administrations for enforcement. Then again MARPOL 73/78 provides for establishing special
areas with no specific reference to the Arctic and most importantly Areas beyond National Jurisdiction. In
addition, special area designation by MARPOL 73/78 is accompanied by the requirement to provide port
reception facilities in the region and the special area becomes effective when IMO is notified that such port
reception facilities are established.
38
This is observed as a significant issue for the Arctic since well-
developed ports are relatively few in number and reception facilities may not exist. Furthermore, there is
no port State control or Memorandum of Understanding for this purpose in the Arctic. What is
indispensible today is a refinement of these existing regimes to accommodate protected areas including
port reception facilities in the Arctic against deliberate dumping and operational discharge. With this, it
should be noted that much of International law ultimately depends on the implementation by States at a
domestic level.
39
Each member of the Arctic State has its own disposition of legislations which reflects the
nature of responsibility it undertakes. The Norwegian legislation stipulates the implementation of special
protected areas in Svalbard
40
. Denmark has rendered Greenlandic Parliament strong legislative authority
under which the Greenland Home Rules Government issued an executive order in 2007 with a view to
implementing protected areas.
41
These legislations represent examples of efforts made by Arctic States
in establishing protected areas but gaps remain in terms of strict compliance with International law
which also requires refinement.



accessed 3 December 2010), where it is stated that these areas, also represent those at highest risk as access
increases for industrial trawlers, fisheries and industrial exploration of mineral and petroleum along with coasts
and as new infrastructure and the receding sea ice open up new areas for exploration.
37
Ibid.
38
Aldo Chircop, International Arctic Shipping: Towards Strategic Scaling-Up of Marine Environment
Protection in in The Arctic Environment And The Law Of The Sea, Edited by Myron H. Nordquist, John
Norton Moore and Tomas H. Heidar, , Center for Oceans Law and Policy, 2010, IDC Publishers, Martinus
Nijhoff Publishers and VSP, p. 188.
39
The Nuuk Declaration, On the occasion of the seventh ministerial meeting of the Arctic Council, 12 May
2011, Greenland.
40
Svalbard Environmental Protection Act, Lov om miljvern p Svalbard/svalbardmiljloven, LOV-2001-06-
15-79 accessed at <http://www.lovdata.no/all/nl-20010615-079.html> (date accessed 15 December 2011)
41
Greenland Home Rule Government executive order No. 10 of 15 June 2007 on protection of Illulissat
Icefjord, accessed at <http://www.greenland.com/media(2010,1033)/Ilulissat_executive_order_No._10.pdf >
(date accessed 15 December 2011).
12
3.3 Arctic vs. Antarctic.
Currently the Arctic region consists of an array of specific regimes with very narrow issue areas.
42
The
regional regime suffers from lack of co-ordination in establishing protected areas beyond national waters
while the legal regime suffers from unenforceability. That global and regional cooperation are necessary to
protect and preserve the marine environment is recognized in LOSC Article 197. The Arctic States have
not yet adopted any pragmatic regional treaty or common integrated policy with respect to protected areas.
The Arctic Environment Protection Strategy and later the Arctic Council are recent developments and have
been successful so far in pinpointing the need for designation of MPAs within and beyond National
Jurisdiction. Majority of the Council members linger with ad hoc projects with no clear agenda.
43
The
Antarctic treaty regime is observed by many scholars as a framework that should be used in the Arctic as
well owing to the fact that the South Pole shares both a similar environment and similar environmental
stress factors with its northern counterpart, and is governed by a comprehensive environmental protection
treaty i.e. modus operandi. Hence, the Arctic region seems incomplete when compared with the far-
reaching regime regulating the Antarctic.
44


3.4 Recommendations: Hard law vs. Soft law.
The existing collective framework as embodied by the Arctic council is defined by soft law approach i.e.
a voluntary approach in establishing MPAs to safeguard from voluntary vessel-pollution and lacks a
strenuous treaty approach. The concept of a binding legal system or hard law has been voiced by
International Union for Conservation of Nature and World Wide Fund.
45
Many of the building blocks for
implementing such hard laws are already in place. The LOSC provides for an International framework for
establishing protected area while the Arctic Council fills in the gaps with political framework. Regional
Conventions such as OSPAR supplements model for procreating a pioneering regulation of pollution
control for a multiple user specific region. A flexible interpretation of Article 237 (freedom to make
further arrangements to protect the marine environment) would relate to establishing a multiple user
MPA.
46
The amalgamated effect of principles of International environmental law, the growth in marine
regionalism and the obligations imposed on coastal states to cooperatively manage the marine environment
by the LOSC is enough to put the Arctic States under a legal obligation to ensure that the Arctic Ocean is
appropriately managed by MPAs. Then again, the Arctic States may adopt a legally binding Arctic

42
Donald R. Rothwell, The Polar Regions and the Development of International Law, Cambridge University
Press, 1996, p.420.
43
David Vanderzwaag; Rob Huebert and Stacey Ferrara, The Arctic Environmental Protection Strategy, Arctic
Council and Multilateral Initiatives: Tinkering while the Arctic Marine Environment Totters. Denver Journal of
International Law and Policy, Vol. 30:2, pp. 131-170.
44
Linda Nowlan, Arctic Legal Regime for Environmental Protection, 2001, IUCN, Gland, Switzerland and
Cambridge, UK and ICEL, Bonn, Germany, accessed at <http://data.iucn.org/dbtw-wpd/edocs/EPLP-044.pdf>
(date accessed 16 December 2011).
45
Schram Olav Stokke, A legal regime for the Arctic? Interplay with the Law of the Sea Convention, Marine
Policy Vol. 31, p. 402.
46
Supra note 3.
13
Operation Scheme for establishing MPAs which gives reference to implementing an umbrella convention
i.e. LOSC where the Coastal States could depend on Article 234 (of LOSC) to implement stringent control
from voluntary vessel-pollution in Exclusive Economic Zone. As for Areas Beyond National Jurisdiction,
the Arctic States may forward a request to IMO to designate Arctic as a special area under MARPOL 73/78
or to empower the Arctic Council to designate such areas as protected areas to provide additional
protection from voluntary vessel-pollution emanating from commercial exploitation. On the other hand,
critics who favour soft law approach believe that negotiating legally binding instruments will be time
consuming and the reason as to why it was possible to create an Antarctic treaty was because there was no
need to strike a balance of safeguarding marine environment and commercial exploitation. With soft law
it is more flexible to procure widespread assent to new rules within a short period of time since they are not
legally binding. Then again, parties to hard law often make reservations or exclude themselves from the
law itself in order to limit their vulnerability to new commitments as the United States of America has
excluded itself from being a part to LOSC.
47
The only way to dismiss this argument is that with the
absence of hard-law no soft-law regional co-operation has been taken up till date and the Arctic region
still remains to be susceptible to voluntary vessel-pollution.
48


4 Conclusion.
It is ultimately the implementation of provisions on a national level which shows whether or not an
International environmental policy is widely acknowledged. But Arctic States apparently suffer from
bureaucratic fatigue from the soft law approach and to establish MPAs there is the need for a legally
binding framework. Although LOSC provides the general framework whereas LC72 and MARPOL 73/78
provides for regulatory framework, there is a need to refine these regimes to accommodate Arctic if the
legally binding framework is to provide reference to those International instruments. Then again, the
legally binding framework should refer to a multiple user MPA so that it can strike a balance between
safeguarding the marine environment and ameliorating ship traffic owing to climate change. Because,
rather than replicating the Antarctic treaty regime, the Arctic has a major potential of becoming a unique
model regime. Just as the Arctic States are under the pressure of implementing treaty which is legally
binding in nature and focusing on individual State accountability in implementation and accountability of
establishing MPAs, it is the duty of the International Organizations to refine their regimes by adding Arctic
under the special area zone. The regimes already exist and a refinement of those regimes will surely add
to the strength of the Arctic States battle to save the marine environment from commercial exploitation
which exists today and against increasing exploitation that will exist tomorrow.


47
Oran R. Young, The Structure of Arctic Cooperation: Solving Problems/Seizing Opportunities. Fourth
conference of Parliamentarians of the Arctic Region, Rovaniemi, 2000, accessed at
<http://www.arcticparl.org/_res /site/File/images/conf4_sac.pdf> (date accessed 16 December 2011).
48
Supra note 44.
14
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