An Ocean between Us: The Implications of Inconsistencies between the Navigational Laws of Coastal Arctic Council Nations and the United Nations Convention on the Law of the Sea for Arctic Navigation

IntroductionWith the continued melting of sea ice in the Arctic, previously inaccessible stretches of Arctic waters have become navigable.1 With that increased navigability comes the possible opening of more efficient shipping routes through the Arctic Circle.2 While the question of who gets to determine navigational laws in the Arctic ocean has long been an intellectual exercise, the persistence of thick sea ice throughout much of the year kept that question strictly in the realm of the hypothetical.3 Now, however, that thick sea ice is melting and potentially creating a shortcut across the Arctic ocean that would shave thousands of miles off of currently frequented shipping routes.4 The potential for increased ship traffic through the Arctic via those once inaccessible routes has given the question of who determines the of the road for the Arctic Ocean-and what those rules should look like-new urgency. Arctic environmental and navigational schemes are crucial to answering these questions because the discussions surrounding the two concepts are frequently intertwined.5 A primary reason for this is that the amount of ice in Arctic waters, which is necessarily dependent on temperature and climate, dictates the extent of navigation that can occur.6 Additionally, the introduction of hitherto unknown volumes of traffic brings the possibility for hitherto unknown volumes of pollution to one of the most unusual, pristine environments remaining on Earth.7 Indeed, to the isolation and extreme nature of the Arctic Circle's environment, accidental spills of oil or other pollutants would be extremely difficult to mitigate and remediate.8Given these concerns, ensuring safety of navigation and protection of the environment are closely linked, and the conversation surrounding Arctic navigation and shipping routes necessarily requires some discussion of environmental impact.9 Unsurprisingly, the existing international legal framework regarding protection of the maritime environment, which includes the United Nations Convention on the Law of the Sea and the Polar Code,10 is frequently cited in discussions regarding Arctic navigational laws.11 The United Nations Convention on the Law of the Sea (UNCLOS) is an international agreement that created a vague due regard standard for Arctic environmental and navigational laws,12 and the Polar Code is a very recently promulgated instrument that aims to provide a comprehensive set of Arctic shipping and environmental protection guidelines.13 However, to UNCLOS's use of poorly defined phrases such as due regard,14 Arctic navigation laws passed by the Arctic Coastal States (Canada, Denmark,15 Norway, Russia, and the United States)16 are arguably inconsistent with the framework's intent, not to mention inconsistent with other nations' laws passed in response to the same framework.This Note argues that to remedy those inconsistencies, the UNCLOS standard requiring that Arctic environmental laws have due regard for navigation should be interpreted in light of the Voyage Planning Requirements found in the Polar Code.17 Specifically, this Note examines the Arctic navigation policies of three Arctic Coastal States (Russia, Canada, and the United States), the inconsistencies between those policies and the international legal framework, and how those inconsistencies can be easily resolved by understanding due regard in Article 234 of UNCLOS to incorporate the Arctic navigational requirements found in the Polar Code. Part I provides an overview of the existing international framework for Arctic navigation. Part II analyzes how well (or poorly) the Russian, Canadian, and American Arctic navigational policies fit into the current international scheme created by UNCLOS and the Polar Code, and examines how inconsistent approaches to Arctic navigation could have far-reaching negative impacts. Part III posits that to avoid those dangers and tensions, due regard in UNCLOS Article 234 should be interpreted using the Voyage Planning requirements listed in the Polar Code's Voyage Planning chapter. …

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