Finding common ground in the Arctic

24 Мар

В статье рассматриваются вопросы, связанные с правовым регулированием отношений, которые складываются в полярных широтах, в частности, в Арктике. В Арктике находится около 25% мировых запасов ископаемого топлива, что привлекает значительное внимание бизнеса и официальных государственных властей. Тем не менее, упомянутые отношения урегулированы неадекватно, фрагментарно. Действительно, если бы не ледяной покров, который, кстати, интенсивно тает, правовое регулирование в арктических морях ничем бы не отличалось от регулирования отношений по поводу использования морей вообще, опирающегося на положения ЮНКЛОС. В настоящее время существуют страны, которые проявляют высокую заинтересованность в урегулировании отношений по поводу северных морей. Огромное значение имеет делимитация морских пространств, поскольку от этого зависит тот правовой режим, который действует в определенном пространстве Мирового океана. Правовой статус исключительной экономической зоны, закрепленный в ЮНКЛОС, приводит к определенным международным противоречиям в сфере эксплуатации арктических районов. По мысли автора настоящей публикации, бизнес может задать тон в области стандартов безопасного использования этих пространств.

Ever more exploration ships are heading to the Arctic seeking new sources of fossil fuels. Faced with fragmented regulation and state disputes over the region, industry must set the tone for safety standards and best practice.

А recent report by the UN-backecl Intergovernmental Panel on Climate Change states that the unrestricted use of fossil fuels must be phased out by 2100 if the world is to avoid ‘severe, pervasive and irreversible damage’. Yet, at the same time, investors are moving into the Arctic in search of new sources of fossil fuel – thought by many to be the main cause of climate change – such exploration facilitated by melting ice, itself a symptom of climate change.

Over the past decade, the Arctic’s summer ice sheet has retreated to record lows. This has opened up new tracts of water to shipping, unlocking the long-sought North-West Passage from the Atlantic to the Pacific, and further facilitating the efforts of mining, oil and gas companies. The first trans-Arctic passages are being made via Canada to the Northern Sea Route above the country, and Russia is already seeing record numbers of transits: 71 in 2013, up from 46 in 2012. The US Geological Survey estimates that the Arctic holds 25 per cent of the world’s oil and gas reserves, with over 80 per cent of this located offshore. In response, companies including Shell, BP, ENI, Cairn Energy, Statoil, Rosneft and Gazprom are all active in the region. This activity, of course, has its opponents. Greenpeace, for example, claims that die Arctic environment is too fragile to drill in, and that the companies involved underestimate the risks.

Inadequate regulation

The ambitions of the oil and gas industry in the region have highlighted a lack of pan-Arctic regulation and oversight. The Arctic littoral states – those with land or territorial waters in the Arctic – are Russia, the US, Canada, Norway and Denmark (via Greenland). Each seeks to exert its authority, though to differing standards, while international agreement over Arctic operating norms progresses at a glacialpace. The result is that in the most rapidly developing areas of activity, commercial groups and commercial lawyers are the ones seeking to establish common operating standards.

‘Arctic warming may be undesirable, but it is a fact and one that presents a number of practical, as well as legal, issues for the governments that border the region, and for the commercial entities seeking to operate within it,’ says Hans Corell, former Legal Counsel of the UN, now Co-Chair of the IBA Human Rights Institute, and an advisory board member of Arctic Frontiers – focused on sustainable development in the Arctic.

‘There are certainly “gaps” in the environmental, governance and regulatory regimes as they apply to the Arctic,’ says Corell, ‘so the increasing challenge is to bolster what currently exists, in particular the 1982 United Nations Convention on the Law of the Sea (UNCLOS).’

Arctic rules

The questions of which rules apply to the Arctic and who has the right to police do not have straightforward answers. The most prominent guardian of the region is the Arctic Council, comprising the eight states that border it: Russia; Canada; the US; Norway; Denmark; (which oversees Greenland and the Faroe Islands); Finland; Sweden; and Iceland.

Formed in 1996, the basis of the Council’s authority is UNCLOS, which permits a coastal state to designate an area extending 200 nautical miles from its shoreline as an ‘exclusive economic zone’ (EEZ), entitling it to all the resources found within. In addition, states have rights over the seabed of the continental shelf up to 350 nautical miles beyond their EEZ.

“Each of the Arctic Council members has their own agenda and this includes the pace and nature of economic activity they would like to see in the region.’ says Corell. ‘Those countries with the largest Arctic borders-such as Canada and Russia – perhaps inevitably seek to project their influence, but the Council is ultimately a consensual body. The speed at which they reach agreement may not be to everyone’s liking.’

The Arctic Council has agreed two formal treaties: on Arctic search and rescue; and on common approaches to tackling oil spills, but its member states still act in their own interests when it comes to the commercial exploitation of EEZs.

‘From a territorial perspective, the basics are decided. UNCLOS applies and it is this that determines the limits of countries’ EEZs. But the ice continues to retreat and, as new resources are found and shipping routes open up, countries will exert their rights,’ says Jan Dreyer of Dabelstein & Passehl, Chair of the IBA Maritime and Transport Law Committee.

It is very difficult to tell nation states not to use their natural resources. Countries… see growing market demand and they are well within their rights to capitalise on it

Hans Corell

Former Legal Counsel of the UN; Co-Chair of the IBA Human Rights Institute


A thorn in the side of the Arctic Council is that the US lias yet to ratify UNCLOS. It does abide by its principles, however, through the 2008 11 nlissat Declaration signed alongside Russia, Canada, Norway and Denmark, which covers the Arctic marine environment, maritime safety and emergency responsibilities. For some, however, it seems designed to block am new regional governance regime.

‘The US has repeatedly stated that it intends to ratify UNCLOS, but we continue to wait and see,’ says Corell. ‘There was a concern that Ilulissat may lead to a new Arctic hierarchy, but the reality is that the region is politically stable and that the US is committed to UNCLOS. The ice certainly makes the Arctic a more challenging region, but if you took the ice away the Arctic would still be regulated in the same way as any other ocean of the world.’

Interested observers

Arctic Council decision-making may be the preserve of its eight members – currently chaired by Canada – but a seat near the table is increasingly attractive. When the Council was established there were only five official stale ‘observers’, alongside six permanent indigenous peoples’ groups. It now has over 30 observers, comprising non-governmental organisations and governments. Of these, India, Singapore and China all have indirect Arctic interests. China, for example, is the largest backer of Greenland’s growing rare earth metals mining sector.

This year Russia commissioned three new nuclear ice-breakers and, alongside Canada, is investing in new navigational and emergency centres to facilitate Arctic access.

‘The potential for new disputes exists as the ice retreats further, but these will be played out under the terms of UNCLOS,’ adds Dreyer. ‘The disputes that we currently see – for example, whether the North-West Passage is an international strait or within Canada’s territorial waters – do not question the legitimacy of UNCLOS, just its interpretation.’

Ongoing disputes include those between the US and Canada over the delimitation of the Beaufort Sea, between the US and Russia in the Bering and Chukchi Seas, and between Canada and Denmark over Hans Island and in the Lincoln Sea. Norway and Russia may still dispute rights over Svalbard, but their 40-year dispute over the Barents Sea was finally resolved in 2011. Since then, Norwegian and Russian rigs have entered service there.

‘It is very difficult to tell nation states not to use their natural resources,’ explains Corell. ‘Countries with mineral or hydrocarbon reserves see growing market demand and they are well within their rights to capitalise on it. Where there is uncertainty over the extent of their maritime zones the onus is on the countries to negotiate a settlement.’

Russia, Norway and Canada have all made submissions to the Commission on the Limits of the Continental Shelf. In support of its claim, Russia symbolically planted a flag 4,000m down on the sea floor near to the North Pole in 2007, in relation to its claim over the Lomonosov Ridge, which it says is an extension of the Russian continental shelf.

‘The Russian flag planting has no legal significance whatsoever,’ says Corell. ‘But it has led to many misunderstandings in the media, in particular that it is a territorial claim, which it is not, since UNCLOS does not allow claims to territory in the high seas.’

Wealth and safety

Maritime delimitation is significant because it determines whose rules apply. Key to the concerns of many over the Arctic are the environmental risks posed by increased exploration, extraction and shipping and how rigorous each nation’s regulations are in this regard.

‘What we want to see across the Arctic is not a variable regulatory environment, with operators adapting to the disparate experience of national regulators dependent on which EEZ they find themselves in, but a better common standard,’ says Michael Kingston, a maritime and insurance partner at DWF in London. ‘What is clear is that national regulation, no matter how tough, is usually reactionary. This means that in the fragile Arctic, perhaps more than anywhere else, industry must take the lead and impose upon itself a higher standard of behaviour before a disaster ever happens.’

Kingston argues that the regulatory regime that a company operates in affects the standards of its operations. For example, the official investigation into the Deepwater Horizon oil spill in the Gulf of Mexico in 2010 placed a portion of the blame on the US legal and regulatory regime. The official report cited the incident as an ‘almost inevitable result of years of government and industry complacency and lack of attention to safety’.

Indeed, some oil majors have opted out of Arctic exploration, with the potential risks involved in mind. For example, in 2012 Total’s then-Chief Executive, Christophe de Margerie, slated that drilling for oil in the Arctic was too risky from a reputational perspective.

‘We expect to see more Arctic drilling on land and at sea. Countries continue to license exploration blocks and there is greater demand for rigs and floating wells capable of reaching the ocean floor. All are, however, largely untried in the Arctic environment, so the concern is: what happens if something goes wrong? How does an operator stop a leak and what happens if there are no relief facilities available?’ says Davicl Estrin, Chair of the IBA Environment, Health and Safety Law Committee. ‘An issue is how far can governments actually go to enforce safety standards? Most do not have the requisite naval or coastguard capacity to police the Arctic. And while the insurance requirements on operators may be clear, how sure can we be that they are actually adhered to?’

There are also issues of remoteness, darkness and how to deal with a spill late in the summer season for operators to consider. The Deepwater Horizon spill highlighted the dangers of exploratory drilling in even the most benign environments, as well as the financial and reputational risks assumed by drilling companies.

‘When you consider that there is no known way of cleaning oil that is spilled in ice, we do not think that [companies] should be operating there. The challenge is mechanical recovery: booms and .skimmers simply do not work in ice-infested waters; in situ burning is disrupted by wind; and we do not know the long-term eco-toxicological impacts of putting chemical dispersants in the Arctic,’ says Ben Avliffe. Head of Campaigns for the Greenpeace Arctic Programme, Greenpeace UK.

The potential for new disputes exists as the ice retreats further, but these will be played out under the terms of United Nations Convention on the Law of the Sea

Jan Dreyer

Dabelstein & Passehl, Chair, IBA Maritime and Transport Law Committee

Some operators are attempting to pre-empt the dangers that exist, in order to facilitate exploration. Exxon, Rosneft and Statoil, for example, have all committed millions of dollars to Arctic research, while Greenland now demands a US$2bn bond from drilling companies to cover potential clean-up costs.

‘The starting point is to properly understand the environment in which companies operate, to undertake the requisite pre-studies, accept the operational window as it truly exists, and to employ the right technologies. Also significant is that while Arctic opportunities may be expanding, the pool of real local expertise remains very small,’ says Ake Rohlen of Arctic Marine Solutions, and a member of the International Association of Oil & Gas Producers’ (OGP) Arctic Task Force.

Declaration

Rohlen and Kingston, alongside others, are at the forefront of proposals to establish a new voluntary Arctic operating standard, drawing on shipping and oil and gas ‘best-in-class’ practice, while imposing new technological know-how and data-sharing obligations. Incorporating initiatives such as the Polar Code, overseen by the International Maritime Organization and already endorsed by the International Union of Marine Insurance, the hope is that this Arctic Marine Best Practice Declaration will be endorsed by the Arctic Council.

The pace of Arctic development has only increased the relevance of the declaration, says Kingston. In 2010, only four vessels transited the Northern Sea Route. Arctic cargo volumes reached 1.36m tonnes in 2013, and are predicted to rise to 4m tonnes in 2015 and 65m tonnes in 2020, alongside a dramatically higher increase in ‘destination’ shipping as more Arctic rigs and mines need servicing.

‘The declaration is the product of considerable analysis of the opportunities and challenges that the Arctic presents,’ says Kingston. ‘Historically, if a vessel had a “global certificate” it could operate anywhere up to 70 degrees north and south – the Arctic Circle lies at 66 degrees north. This has meant that ships unsuited to polar conditions have entered the Arctic with their’ insurer’s permission, with crews of little or no ice experience and where historically there has been little forethought to disaster response, search and rescue or even wreck removal.’

The goal is to normalise a set of standards across industries and for companies operating in the Arctic to demand the same of their partner entities and sub-contractors. ‘The cross-industry enthusiasm we have seen for the declaration demonstrates to me a strong sense of responsibility ai all levels when it comes to operating in the Arctic, for companies to go beyond mere compliance,’ says Kingston.

Industry must take the lead and impose upon itself a higher standard of behaviour before a disaster ever happens

Michael Kingston

DWF

All sides agree that the pace of commercial encroachment into the Arctic will ultimately be driven by the relative demand for the region’s resources. Despite this, it seems that the opening up of the Arctic is inevitable, if not entirely desirable, and that such a fragile environment remains, like it or not, a test bed for sustainable development.

‘There is a common concern for the Arctic region, says Corell. ‘As new areas open up this raises the need to regulate the activities that emerge-be that fisheries, marine management, mining, or oil and gas exploration. States will act in their own interest and bodies like ihe Arctic Council will always play catch-up. So what is needed is greater cooperation, prudence and for a “responsible” operator or management approach to be adopted. This, I hope, is the path down which we are now travelling.’

Автор: Scott Appleton

Источник: IBA Global Insight. – 2015. – February/March. – P. 19 – 23.