Positive Unilateralism – An Effective Strategy to Protect the Canadian Arctic Environment or a Subtle Approach to Establish Sovereignty?

by Andreas Raspotnik The issue of unilateralism has gained increasing attention in international relations, referring to a state’s tendency to act alone in addressing and tackling global and regional challenges and problems. It is also commonly understood as a means of exercising sovereign rights and protecting national interests. 

The Canadian establishment of the Arctic marine traffic system NORDREG (Northern Canada Vessel Traffic Services Zone Regulations), implemented to safeguard the Canadian Arctic marine environment, illustrates the most recent unilateral act in the Arctic. These mandatory regulations, which replace the informal NORDREG Zone and its voluntary reporting system, require most nongovernmental vessels to report information prior to entering, while operating within and upon exiting Canada’s northern waters. The NORDREG regulations also cover the various routes that together are considered the jurisdictionally disputed Northwest Passage (NWP). Although the regulations were put into force in accordance with Article 234 of the United Nations Convention on the Law of the Sea (UNCLOS)[1], NORDREG’s mandatory nature was immediately contested both on a bilateral and multilateral level, illustrating the discrepancy between what constitutes a coastal state (→ environmental protection) and a maritime state (→ freedom of the sea).

Can unilateral action be considered an effective, positive step of policy implementation in order to protect the fragile Arctic environment?

Basically states tend to resort to unilateral measures for environmental-related objectives. Yet environmental protection is seldom the only motive. The bigger picture clearly involves political, strategic and economic considerations.

During the last decade the Arctic region outpaced itself as an epiphenomenon of international politics and turned into a dynamic and uncertain political, legal, and economic environment. Oversimplifications of complex multidimensional issues with regard to unresolved Arctic maritime boundaries and the race for hydrocarbon resources interlinked with sovereignty issues, tend to depict the Arctic as a region of conflict rather than cooperation. By now the international legal agenda is set by the law of the sea and its combination between UNCLOS and customary international law. International law can be considered the framework for international cooperation in all respects. Yet no state is bound to meet the legal requirements imposed by international law and elaborated by the international community. Nevertheless, self-interested actors, e.g. sovereign nations, rationally forego independent decision-making and develop processes for multilateral regulations.

Yet one-sided action may be preferred if it is assumed more efficient. Acting unilaterally is part of a nation state’s routine behavior in order to exert sovereignty and protect national interests. Given the uncertain transformation of the Arctic and the fundamental importance of the region to the Canadian national identity, a comprehensive protection of Canadian Arctic sovereignty is essential for the Arctic coastal state. NORDREG’s establishment seems to be one essential part of Canadian Arctic security. Canada asserts that the traffic system is consistent with international law concerning ice-covered areas, in particular with the “Arctic Exception” of UNCLOS, Article 234. This Article stipulates the right of coastal states to adopt laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas. Canada takes the view that the Article provides a complete legal justification under international law. Thus it is under no obligation to consult the International Maritime Organization (IMO) for approval of the NORDREG system.

Several international actors, e.g. U.S., EU, Germany and Singapore, immediately contested NORDREG’s mandatory nature, most prominently at sessions of the IMO’s Maritime Safety Committee. While these states praised Canada’s policy to protect the Arctic marine environment but criticized the unilateral approach of implementation. The NORDREG controversy clearly highlights the weakness of Article 234 – the ambiguity of its wording and its room for interpretation [2].  

Based on a possible broad definition of Article 234 and a rather vague definition in the International Convention for the Safety of Life at Sea (SOLAS), Regulation V/11.4 [3] , that contracting governments may submit such system to the IMO for recognition, allows for the assumption that the Canadian NORDREG implementation can legally be justified. Additionally, the Canadian approach of proceeding has to be regarded as an expression of political self-assertion based on legal confidence and classified in line with the “rocker of the boat” occasions [4]. 

The increase in the various forms of Arctic marine transport could lead to greater potential risks with serious environmental consequences, e.g. accidents of oil tankers and the introduction of environmental contaminants with severe impacts on the fragile Arctic marine biodiversity. In this regard, environmental protection seems to be a valid and socially accepted breeding ground for unilateral action and measures.

Yet the Canadian case is specifically problematic as it distinctively outlines Canada’s on-going dilemma: balancing sovereignty, security and stewardship to protect national interests with promoting sustainable development and facilitating circumpolar stability and cooperation [5]. 

Does this unilateral act serve another purpose?

Broad international compliance with the NORDREG regulations could evidently strengthen Canada’s position with regard to the legal status of the North West Passage. The legal status of the NWP is a matter of national importance for Canada and its notion of sovereignty. NORDREG was especially implemented to enhance the security of navigation in the Canadian Arctic waters and consequently to protect the fragile Arctic environment. 

Yet the sovereignty issue constantly joins the game. Until now the international debate regarding the legal status of the NWP does not influence the application of NORDREG and its discussion or vice versa. NORDREG is carefully drafted, avoiding any nexus between the regulation itself and the status of the NWP. As a matter of fact, NORDREG requires clearance prior to the entry of the NORDREG Zone and not prior to the entry of the NWP. Nevertheless the risk of a lower level of compliance, compared to the voluntary NORDREG system, could have a reverse effect. Canada’s unilateral approach, evidently hampering navigational rights in this area, could intensify international pressure on Canada and lead to further implications in the context of the NWP.

The Canadian NORDREG approach and its “positive” unilateral example of applying Article 234 could encourage other Arctic coastal states, with the exception of the US, to flex their Article 234 muscle and adopt similar laws and regulations to prevent environmental pollution in the Arctic region. The Russian Federation’s position on Article 234 is also quite optimistic as it serves as a legal ground for the country’s extensive regulations with regard to navigation in the Northern Sea Route (NSR). Yet the ambiguity of Article 234 provides for a situation that nobody can effectively oppose. International compliance with the Canadian NORDREG Regulations would serve as a model of effectively using Article 234 and could lead to laws and regulations covering broader issues.

[1] See United Nations Convention on the Law of the Sea (UNCLOS), Montego Bay, 10 December 1982
[2] The Arctic Institute will cover Article 234 and its ambiguity at a later point.
[3] IMO Report of the Maritime Safety Committee on its Seventy-Third Session, MSC 73/21/Add.2, 14 December 2000, Annex 7
[4] The “rocker of the boat” occasions are three famous incidents were Canada fought to balance coastal state rights with navigational and marine use interests; see VanderZwaag, David. Shipping and Marine Environmental Protection in Canada: Rocking the Boat and Riding a Restless Sea, in: Navigational rights and freedoms and the new Law of the Sea. Edited by Donald R. Rothwell and Sam Bateman. The Hague/London/Boston, 2000. Pp. 209 – 229
[5] Lackenbauer, P. W. Mixed messages from an “Arctic superpower”? Sovereignty, security and Canada’s northern strategy, in: Atlantisch Perspectief. Vol. 35:3 (2011). Pp. 4-8. http://www.atlcom.nl/upload/AP%202011%20nr_%203.pdf