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Article 234 of the 1982 United Nations Convention on the law of the sea and reduction of ice cover in the Arctic Ocean
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Article 234 of the 1982 United Nations Convention on the law of the sea and reduction of ice cover in the Arctic Ocean Viatcheslav Gavrilov∗, Roman Dremliuga, Rustambek Nurimbetov School of Law, Far Eastern Federal University, Vladivostok, Russia
A R T I C LE I N FO
A B S T R A C T
Keywords: UN convention on the law of the sea Arctic ocean Legal regulation Environmental protection Interpretation of treaties Article 234 Rights of coastal states Polar code
The article analyzes the reasons for developing and including Article 234 of the 1982 Convention of the Law of the Sea. Article 234 provides coastal States with special rights to adopt laws and regulations in order to prevent, reduce and control marine pollution in ice-covered areas within their exclusive economic zone. Based on the analysis of 1969 Convention on the Law of Treaties and the Law of the Sea Convention itself, the authors conclude that provisions of Article 234 should be regarded as a special legal mechanism for protecting marine areas in the Arctic region. Therefore, implementation of Article 234 cannot be changed or cancelled as a result of ice cover reduction in the Arctic Ocean or following the entry into force of the Polar Code, which establishes new rules of navigation in the Arctic waters.
1. Introduction It has repeatedly been emphasized in Russian scholarly sources that the integrity and specifics of the Northern Sea Route's (NSR) legal status, as well as the authority of Russia to control its usage by different countries may be substantiated both by logistic continuity and by indivisibility of the NSR itself and by the particularities of the region through which it passes [1–3]. Such particularities determine the “leading role of Arctic coastal States in specifying [the] legal regime of Arctic marine regions” [4]. This in turn offers an opportunity for Arctic coastal States to specify, at both the regional and national level, universal norms of the international law of the sea related to coastal maritime spaces [5]. Article 234 of the 1982 United Nations Convention on the Law of the Sea (LOSC) [6] supports this conclusion. Article 234 provides that “coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance”. Despite the absence of a definition of “ice-covered areas” in the Article, international scholars and practice suggest that the whole Arctic region should fall under this definition [7].
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Clearly, proceeding from the meaning of Article 234, national laws and regulations on “prevention, reduction and control of marine pollution from vessels” may, among other things, extend their scope to cover maritime navigation in certain Arctic coastal areas. The unpredictability of Arctic navigation considerably increases the possibility of various hazards from shipping activities, including marine environment pollution. Although this gives Russia and Canada legal grounds for establishing control over shipping in the NSR and Northwest Passage, is not entirely acceptable to other States. Thus, one should expect widespread discussion on whether the application of Article 234 provisions is still reasonable or if it is necessary to be reinterpreted as a result of rapidly melting sea ice. For example, according to Rothwell, the Article 234 provisions will only provide for enhanced marine environmental protection measures for Arctic coastal States for as long as EEZ waters in the Arctic Ocean are ice-covered for half a year plus one day, after which the ongoing application of pre-existing measures would be legally dubious. This means that Canada and the Russian Federation may need to reassess some of their Arctic marine environmental protection laws [8]. Certain issues in respect to environmental protection may arise following the entry into force on January 1, 2017, of the Polar Code, which was developed under the authority of the International Maritime Organization. The Code stipulates a series of additional requirements for vessels and crews performing Arctic navigation [9]. According to certain scholars, provisions of the Code may also affect the rights of Arctic coastal States to adopt special laws and rules under Article 234
Corresponding author. E-mail addresses: [email protected] (V. Gavrilov), [email protected] (R. Dremliuga), [email protected] (R. Nurimbetov).
https://doi.org/10.1016/j.marpol.2019.103518 Received 6 November 2018; Received in revised form 1 May 2019; Accepted 2 May 2019 0308-597X/ © 2019 Elsevier Ltd. All rights reserved.
Please cite this article as: Viatcheslav Gavrilov, Roman Dremliuga and Rustambek Nurimbetov, Marine Policy, https://doi.org/10.1016/j.marpol.2019.103518
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may be attached to the Arctic polar waters exclusively [13]. Since adoption of the Convention, the provisions of Article 234 for special control to prevent marine pollution in ice-covered areas proposed by Canada and Russia (accompanied by notable silence from the United States) have been accepted by other countries. The United Nations Environment Programme also supported the basis of this Article, emphasizing the importance and practical value of the Arctic region in the view of the United Nations [19]. The United States, from its side, has accepted the provisions of Article 234 as a part of customary international law [12]. Up to the present day, interpretation of the application of the terms and general provisions of Article 234 has been controversial. Only Canada and Russia have adopted special laws and rules in this regard, but even those are opposed by interested States and international institutions. For example, in 2010, Canada enacted the Northern Canada Vessel Traffic Zone Regulations (NORDREG) [20], which established mandatory reporting requirements to an authority in the Canadian Coast Guard when a vessel enters specific Arctic maritime spaces. Russia, in its Rules of Navigation in the Water Area of the Northern Sea Route of 2013 [21], has established an authorization-based procedure for passing through the Northern Sea Route by domestic and foreign vessels, including portions of the Russian EEZ that are part of the NSR water area [5]. Over the years, these practices have been consistently criticized by the United States. It argues that while exercising rights stipulated under Article 234, Canada and Russia created unwarranted restrictions for other States to exercise their right to the freedom of navigation in the Arctic Ocean, a right that is widely recognized in the contemporary international law of the sea [13]. Without going any deeper into analyzing arguments behind the positions of parties to these disputes, let us note that the mere fact of their existence is yet another confirmation that there are significant differences in national approaches to the interpretation of Article 234, even by Arctic coastal States. That is why current law-making activity in that sphere may not be taken into consideration in interpreting provisions of Article 234, as stipulated in Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties [22], because it does not meet the requirements set today by international courts [23].
[10]. The main goal of this article is to provide a legal assessment of the possibility for Arctic coastal States to continue to apply the provisions of Article 234 under conditions of reduced ice cover in the Arctic Ocean. Following a brief history of the development, adoption and application of Article 234, the content of its provisions are reviewed in a historical context and interpreted in accordance with the 1969 Vienna Convention on the Law of Treaties. Discussion then turns to the problem of finding a balance between the application of the provisions of Article 234 and the rules of the Polar Code. 2. A brief history of article 234 It is generally known that Article 234 was included in the LOSC on the initiative of Canada. Canada sought the international legal, and even further, universal, justification of its unilateral action of promulgation of the Arctic Waters Pollution Prevention Act (AWPPA) in 1970 [11]. The AWPPA provided Canadian authorities with the right to control navigation of any vessel, whether Canadian or foreign flagged, within Canada's claimed Arctic marine area. During the negotiation of LOSC, Canada actively pushed the idea of creating a special legal regime in ice-covered areas. It argued that, due to the high risk of causing harm to the marine environment because of the unique characteristics of the region, stricter national rules and standards may be required in comparison with those existing on the international level [12]. In Canada's view, the demand for creating such a regime was driven by the necessity to protect the fragile environment of the Arctic from external adverse impacts caused by the potential expansion of resource exploitation by multinational companies and international navigation in the region. From a Canadian point of view, it was impossible to solve that task by means of Article 211(6) of the LOSC, which granted coastal States the right to adopt special laws and regulations for environmental protection within clearly defined areas of their exclusive economic zone [13]. Article 211(6) requires such laws and regulations to be approved by a competent international organization. Canada argued that they could not regulate the standards of design, construction, manning or equipment of foreign vessels, which should be in compliance with the international norms in force. From a Canadian perspective, the provisions of Article 211 did not ensure the international acknowledgement of the scope of environmental rights in the Arctic they had already secured under the AWPPA [14]. Moreover, many negotiating States expressed their concerns that further expansion of coastal States’ normmaking competency in terms of environmental protection within the EEZ could lead to unlimited discretion and abuse of authority on their part [13]. One of Canada's primary objectives during the development of the Convention's text became a search for potential allies among maritime powers to promote the idea of establishing a special legal regime for environmental protection in ice-covered areas to legally divide them from any other vulnerable sections of the World Ocean [15]. During negotiations, it was agreed that the terms “Arctic waters” and “icecovered areas” should be treated as identical for the purposes of the LOSC [16]. At least there have been no observed objections to this interpretation of the terminology. Although the United States has maintained another position in terms of the international legal status of the Northwest Passage and freedom of international navigation there through [17,18], it has ultimately agreed with the need to create a special legal regime for the environmental protection of Arctic waters. While the authoritative Virginia Commentary of the LOSC recognizes that some zones in the southern hemisphere ‘reasonably meet criteria of an ice-covered area’, it notes that article 234 was developed with northern hemisphere in mind, which is why it is often referred to as the ‘Arctic Article’. With no southern States showing interest in its provisions during the LOSC negotiations and no State practice applying Article 234 in Antarctic polar waters, it seems that its territorial scope
3. Article 234 and its current interpretation As discussed above, Article 234 of the Convention gives coastal States the right “to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone”. Moreover, under its provisions, such norm-making activity by a State shall be possible where 1) there are considerable obstructions or exceptional hazards to navigation in those areas; 2) pollution of marine environment could cause major harm to or irreversible disturbance to the ecological balance; and 3) relevant laws and regulations have due regard to reliable scientific findings on the impacts of navigation on the protection and preservation of the marine environment. Article 234 includes a series of additional characteristics that should be met by ice-covered areas, namely the presence of severe climatic conditions and ice covering such areas for most of the year. The inclusion of such specific climatologic criteria into the text of Article 234 for determining its territorial scope evidently shows that, at the time of the negotiations, nobody thought of the possibility of ice melting in the future. However, during the twentieth and twenty-first centuries that issue has gained great practical significance. For example, according to some reports, soon after 2030 major waterways [in the Arctic] are predicted to be consistently open, with a significant increase in traffic over summer months. The Northern Sea Route and Transpolar Route should be navigable 130 days per year, with open water passage up to 75 days per year. The Northwest Passage will be increasingly open during the late summer 2
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its literal meaning, which gives us understanding of the territorial scope of the coastal States' rights, or it may also mean “when”, which dictates certain time constraints to the Article's application [26]. Accordingly, the rights of coastal States stipulated under Article 234 should operate not only within some pre-determined ice-covered geographical area, which obviously has practical limits determined by climatic conditions, but also within specific time periods when those natural conditions actually are in place in those areas. However, it is generally accepted in both Russian and Canadian State practice that literal interpretation of the word “where” is preferable and certainly more practical and consistent than its interpretation as “where and when” [26,27], since it allows a more reliable basis for planning governance over such areas. As has been fairly noted by Bartenstein, “conditions listed in Article 234 do not shift twice a year at a predictable moment and do not shift in an abrupt manner but pass through transitional situations impossible to qualify definitively. Furthermore, conditions do not shift for all parts of the different seaways at the same time, nor do they for all parts” [26]. As has already been discussed in professional literature, practical implementation of a so-called “twin-set” regime of Arctic exclusive economic zones may prove to be burdensome for coastal States, since there is no reliable methodology allowing precision when deciding whether an area qualifies as one “covered by ice for most of the year” or not [26]. Considering the foregoing, it may be deduced that an interpretation that potentially undermines successful enforcement of a treaty should not be recognized as authentic, in either a legal or general sense. Clearly, understanding of a legal norm's territorial scope is one of the basic requirements of its successful application. Thus, it may be stated that actual ice presence in “ice-covered areas” at any given moment is not mandatory for those areas to be included in the scope of Article 234. Its provisions naturally imply a certain temporal generalization, which can easily be explained by the technical impossibility of reliable and long-term ice-cover shifting forecasting. Overall, the successive interpretations of Article 234 show that the legal term “ice-covered areas” has little to do with the objective presence of ice in marine areas at any particular moment and, consequently, with the “natural” meaning of an “ice-covered area” itself. The foregoing statement can be proved by the fact that, first, the wording “presence of ice” is paired with the wording “particularly severe climatic conditions”, which appears to be very broad since the LOSC provides no explanation of which climatic conditions may be interpreted as “particularly severe” in terms of their source, intensity or stability. This assumes that both wordings are homogenous when it comes to their interpretation and encourages the reader to see them as generally accepted characteristics of Arctic waters rather than a set of normative requirements to be used for those areas’ identification. Second, it is implied that the wording “ice covering such areas” is associated with the wording “obstructions or exceptional hazards to navigation”, which explains one of the reasons for the Article's origin. However, is not the only one, another substantive reason being pollution causing “major harm to or irreversible disturbance of the ecological balance”. Nevertheless, considering the linguistic construction of the Article, the wording “presence of ice” does not address the environmental element, which obviously means that potential pollution of the marine environment should be considered without being bound to permanent ice cover of the area. Many ecological studies show that the reduction of Arctic ice cover does not make local ecosystems more stable and, in fact, quite the opposite—they become more vulnerable [28]. Third, the very term “ice-covered areas” should not be interpreted literally, since there are different degrees of “cover”, each of which has different consequences for navigation and requires different organizational and technical solutions. This leads us to a whole spectrum of possible interpretations of what may actually be “ice-covered areas”. This also means that for the purposes of legal integrity, coastal States should maintain their rights in ice-covered areas no matter what the
and early fall [24]. This has brought the following high-priority issue to the international political and legal agenda: What consequences will the disappearance of polar ice have on the rights of Arctic Coastal States under Article 234 of the LOSC? and how should its provisions be interpreted under current conditions and in the immediate future? At first, it may seem that the steady decline in Arctic ice coverage could have a negative impact on the future application of Article 234 and call into question the rights of Arctic coastal States to adopt special laws and regulations provided for therein. In as few as several years, the provision stipulating the necessity of presence of ice-covered areas within the limits of the EEZ for most of the year may not be consistent with reality. However, will this fact serve as sufficient legal basis to cancel the Article? In order to answer this question it is critical to, first, refer to the LOSC itself, which, according to Article 31(1) of the 1969 Vienna Convention on the Law of Treaties [22], should be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. This means that one should not rely solely on a literal interpretation of Article 234, whereby its provisions are limited only to areas where the ice covers the sea for most of the year. In such a case, a reverse statement also must be true, when marine areas are free of the ice cover for more than six months, they should not be subject to Article 234 and thus fall under another legal regime. Considering these provisions of the 1969 Vienna Convention, such an interpretation of Article 234 is insufficiently substantiated from a legal point of view. In order to grasp its true essence, one should not be guided solely by the literal meaning of the terms used therein, but also by their ordinary meaning, taking into account the intentions of the drafters of the UN Convention on the Law of the Sea. Proceeding from Article 31(1) of the 1969 Vienna Convention, such ordinary meaning shall be about treating the term “ice-covered areas” as synonymous to the Arctic maritime spaces as a whole, because the communicated intention of the parties [25] when concluding the LOSC was to establish a special legal regime solely for the EEZ waters of the Arctic Ocean. It is obvious that their understanding was that such a special regime was intended to establish additional legal guarantees for the Arctic region's sustainable and safe use, rather than providing special rights and privileges to Arctic coastal States. It is evident that the principal negotiators and beneficiaries of Article 234, Russia and Canada, intended Article 234 to legitimize at the international level their already existing national rules in order to decrease the risk of marine environmental pollution from foreign nongovernmental vessels traversing Arctic waters [17]. When drafting and adopting the LOSC, they were supported by other States, and Article 234 was included in the Convention as the only element of section VIII, Part XII (Protection and Preservation of the Marine Environment), which made it a classic lex specialis among other provisions of the LOSC devoted to the protection of the marine environment of a specified and clearly delineated region [13]. With such an understanding of the situation, the provisions of Article 234 on the presence of ice covering certain water areas should be treated not as an indispensable prerequisite for gaining or losing special rights by coastal States, but as a means for the geographical delimitation of the region in which those rights are to be exercised and which need special legal protection—that is, the Arctic. In other words, the term “ice-covered” has been chosen to divide the Arctic from other vulnerable zones or special areas. It was a legal technicality, rather than an intention to link the special legal regime in the Arctic with the condition of ice coverage in the Arctic Ocean. Another argument for the technical irrelevance of the actual ice cover presence for the rights of coastal States stipulated by Article 234 is the universal acceptance of the interpretation of the word “where” in the text. By being very vague, the word “where” may be understood in 3
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that respect, however, one could argue that due to the fact that “legal action under Article 234 consists of both prescriptive action in the form of laws and regulations and enforcement action to ensure respect for those laws and regulations” [26] ‘due regard’ would not be subject to the limitations listed under Article 220(3), (5) and (6) of the LOSC [13]. The coastal State should also pay a “due regard to … protection and preservation of the marine environment based on the best available scientific evidence”, in its regulations under Article 234. This requirement is the final element of the Article and obliges the coastal State to justify its actions, based on suitable scientific studies [13]. Nevertheless, one should agree that, similarly to ‘due regard to navigation’, an Arctic coastal State “could probably without difficulty defend its allencompassing environmental provisions under this unclear, broad expression, especially considering the broad ‘precautionary principle’ utilised in international environmental law” [27]. It is also evident that both ‘due regard’ and ‘best available scientific evidence’ can be used in dispute resolution “in order to safeguard the freedom of navigation against random or uninformed control exercised by the coastal State” [13].
spatial coverage of ice is at any given moment, because the reason of the very existence of Article 234 remains intact. One way or another, taking into consideration the logical analysis of the Article's content, as well as the history of its creation, there is no denying that the purpose of granting special rights to Arctic coastal States within their EEZ was to ensure a higher level of navigation safety and to tighten control over vessel-source pollution, which are required due to natural features of the Arctic region. As of today, there are no grounds to believe that melting Arctic ice can by itself protect vessels navigating in the area from natural perils or improves existing ecological conditions. This is substantiated by research on the safety of navigation [29] and findings on the impacts of global warming on the World Ocean and the Earth's cryosphere [30]. However, can anyone claim that maritime spaces of the Arctic Ocean will preserve the capability of being treated as “ice-covered areas” if they lose their ice cover in the future? The answer to this question is unknown and should be a subject of independent research on the possibilities and limitations of application of Article 234 in conditions of such fundamental climatic change. This research needs to address additional issues, the most important of which is the territorial scope of Article 234. The answer becomes essential if, as was shown above, “ice-covered areas” are treated as a definition determining areas physically covered by ice. In such a case, to which part of the Arctic region should the regime established by Article 234 apply? The most evident answer to this question is that since Article 234 itself formally refers to national laws and rules in force within the exclusive economic zone of a coastal State, its territorial scope shall also be restricted by the limits of those marine areas as determined by national law. In other words, a coastal State may exercise the right granted thereto of establishing special measures for ensuring environmental protection and navigation safety within the limits of its EEZ, which, in turn, will fall within the Arctic Circle. Provisions of Article 234 do not stipulate the possibility of its provisions being extended to the areas of the Arctic Ocean that have the status of high seas. Such an understanding of the territorial scope of Article 234 is supported by the fact that Canada [11] and Russia [31] have restricted the scope of their national legislation on special navigation conditions in the Arctic to the outer limits of their EEZ. When analyzing the content of Article 234, special attention should be given to the notion ‘due regard to navigation’, which is one of the few explicit limits on the power granted to the coastal State. However, it does not provide a clear understanding of how exactly this limit is to be understood, which entails different interpretations of this notion. On the one hand, it is assumed that the notion ‘due regard’ requires, at a minimum, a certain degree of reasonableness and implies that the coastal State must allow some navigation [13]. On the other, there are strong reasons to believe “that this clause was coined by the negotiating States to elude to the necessity of determining the exact extent of the acknowledgement of the international navigation and to leave it up to practice to give form to it” and that “Article 234 was intended to acknowledge a navigational regime of its own” [26]. In other words, “under Article 234 a coastal State must be able to demonstrate that it has considered the effect upon navigation of any measure to be implemented” [32]. However, the content of such measures may be predetermined only in the most general form by other provisions of the LOSC on navigation. That is why a hypothetical situation can be imagined where “even measures that have the effect of totally eliminating navigation in an area may be said to have had due regard, provided that the environmental hazards associated with navigation are sufficiently serious” [32]. Thus, it is fair to say that Article 234 provides for the possibility of the Arctic States creating a special legal regime for navigation within their EEZs, which may be different from that established by other articles of the Convention. However, it is still uncertain whether corresponding rights of coastal States entail broader enforcement power. In
4. The Polar Code and article 234 To better understand Article 234, it is also necessary to consider Article 31(2) of the 1969 Vienna Convention. Article 31(2) stipulates that an additional method of interpretation is the use of “any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty” and “any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty” [22]. In this respect it is important to note that although Arctic States have concluded a number of Arctic regional treaties and other documents, none of them indicate whether or not the regime based on Article 234 of the LOSC has been or is to be changed in light of the shrinking ice cover. Moreover, it is noteworthy that, from a strictly legal point of view, regional agreements may not be useful for interpreting relations between Arctic and non-Arctic States based on Article 234 in the case of ice melting, since they may not be treated as treaties concluded “between all the parties” of the LOSC. Like regional agreements, under current conditions, universal international treaties cannot cancel or alter Article 234 unless directly aimed at altering or cancelling it and concluded in a manner and under the authority of States sufficient for achieving that goal, as stipulated in Articles 312 and 313 of the Convention. Therefore, for example, the Polar Code [9], which entered into force on January 1, 2017, does not affect the special rights of Arctic States to unilaterally establish national standards for vessel activity in their EEZs in the Arctic Ocean. There are several reasons to reach this conclusion. First, the Polar Code fails to stipulate the necessity of altering or cancelling provisions of the LOSC. From a strictly technical point of view, it only introduces amendments to the SOLAS (International Convention for the Safety of Life at Sea, 1974) [33] and MARPOL (International Convention for the Prevention of Pollution from Ships 1973/1978) [34] conventions [35]. Second, there are no contradictions between the Code and the LOSC, since the mere possibility of adoption of the Code is anticipated by, for example, Article 211 (1) of the LOSC, which states that “States acting through the competent international organization or general diplomatic conference shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels”. By virtue of the fact that the Polar Code does not override Article 234, it places into question the laws and regulations already adopted by Arctic States that control, for example, navigation through the Northwest Passage and the Northern Sea Route. Further, technical, information and other requirements for vessels, their crews and navigation stipulated in such laws and regulations should at least be equal 4
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drifting ice creates additional dangers in narrow straits and channels [41]. Most incidents in the Arctic Ocean in recent years were caused by nothing but drifting ice [42]. All this means that melting ice-cover makes Arctic navigation undoubtedly much more dangerous. Disruption of national legal regimes based on Article 234 of the LOSC and the permission of navigation in the Arctic under lower common standards could lead to serious, irrevocable consequences for the Arctic environment. The goals and purposes taken into consideration during negotiations of the LOSC and the subsequent behavior of States in implementing and applying its provisions lead to the conclusion that Article 234 retains its effectiveness in conditions of shrinking Arctic ice coverage and will probably remain of practical use as long as the original considerations of increased responsibility of a coastal State for the safety of navigation and environmental protection in its EEZ remain at the top of the international agenda. The environment of the Arctic is more vulnerable now than it has ever been because of the increase in navigational threats, and there is expectation that this will only become stronger over time. Therefore, it is in every Arctic nation's and other countries' interest to retain existing national regulations within the Arctic legal regimes based on Article 234 of the LOSC at the present stage and into the future.
to those set out in the Code. As has been fairly stated in academic literature, in terms of the Arctic States, the Polar Code's provisions should be treated as another basis for applying Article 234. The Code “provides coastal States with the power to elevate those standards further as long as the exercise of the power satisfies the criteria of the provision [of this Article]” [36]. Even today, Canada and the Russian Federation have requirements for polar shipping that do not appear in the Polar Code or in amendments to key conventions. For example, both States prescribe mandatory reporting for vessels planning to enter Arctic waters, while navigating and before exiting. The Code does not require an experienced ice pilot or navigator on board, whereas the Russian Federation regulates ice pilotage requirements in detail and Canada also requires ice navigators for certain areas [36]. The right of coastal States to establish stricter requirements for Arctic navigation, compared to those stipulated by the Polar Code, does not, however, relieve them of their obligation to introduce changes to their national laws in cases where their provisions are not consistent with those of the Code or are more permissive compared thereto. With regard to Russia, one of the most evident and simple alterations would be the introduction of the Polar Ship Certificate and Polar Water Operational Manual into the list of documents required to issue permits for navigating through the NSR, taking into consideration requirements and restrictions mentioned therein [37]. Another necessary alteration is establishing a correlation between ice strengthening categories of vessels stipulated in the Rules of Navigation in the Water Area of the Northern Sea Route of January 17, 2013 [21], and the ice classes provided for in the Polar Code [38].
Declarations of interest None. References [1] V.I. Peresypkin, A.N. Yakovlev, Northern Sea Route in international traffic passages problem, Transp. Russ. Fed. 2 (2006) 16–19. [2] A.V. Istomin, S.M. Leus, Northern Sea Route: organizational and economic problems of its renaissance and development, North. Mar.: Form. Eco. Order. 2 (23) (2009) 27–32. [3] V.P. Karpov, Northern Sea Route as an arctic exploration tool, Ural. Hist. Messenger 2 (43) (2014) 108–114. [4] A.N. Vylegzhanin, Introduction, in: A.V. Zagorsky, A.I. Nikitin (Eds.), International Cooperation in the Sphere of Environmental Protection, Preservation and Sustainable Management of Biological Resources in the Arctic Ocean: Materials of the International Scientific Symposium, Russian Political Science Association, Russian Political Encyclopedia, Moscow, 2012, pp. 4–8. [5] V.V. Gavrilov, Legal status of the Northern Sea Route of the Russian federation, Ocean Dev. Int. Law 46 (3) (2015) 256–263 https://doi.org/10.1080/00908320. 2015.1054746. [6] United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in Force 16 November 1994) 1833 UNTS 397. [7] Y. Tanaka, The International Law of the Sea, Cambridge University Press, New York, 2012https://doi.org/10.1017/CBO9780511844478. [8] D.R. Rothwell, Law of the sea and arctic governance, Proceeding of the Annual Meeting (American Society of International Law): International Law in a Multipolar World, vol. 107, 2013, pp. 272–275 https://doi.org/10.5305/procannmeetasil.107. 0272. [9] International Code for Ships Operating in Polar Waters (Polar Code), http://www. imo.org/en/MediaCentre/HotTopics/polar/Documents/POLAR%20CODE %20TEXT%20AS%20ADOPTED.pdf. [10] T.L. McDorman, A note on the potential conflicting treaty rights and obligations between the IMO's polar Code and article 234 of the law of the sea convention, in: S. Lalonde, T.L. McDorman (Eds.), International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, Koninklijke Brill NV, Leiden, 2015, pp. 141–159 https://doi.org/10.1163/9789004284593_008. [11] Arctic Waters Pollution Prevention Act, R.S.C., 1985 c. A-12. [12] R. Dremliuga, A note on the application of article 234 of the law of the sea convention in light of climate change: views from Russia, Ocean Dev. Int. Law 48 (2) (2017) 128–129 https://doi.org/10.1080/00908320.2017.1290486. [13] L. Boone, E. Franckx, Article 234. Ice-covered areas, in: Proelss Alexander (Ed.), United Nations Convention on the Law of the Sea: A Commentary, CH Beck, München, 2017, pp. 1566–1585. [14] A. Mestral, Article 234 of the united nation convention on the law of the sea. Its origins and its future, in: S. Lalonde, T.L. McDorman (Eds.), International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, Koninklijke Brill NV, Leiden, 2015, pp. 109–124 https://doi.org/10.1163/9789004284593_006. [15] J. Kraska, Governance of ice-covered areas: rule construction in the Arctic Ocean, Ocean Dev. Int. Law 45 (3) (2014) 260–271 https://doi.org/10.1080/00908320. 2014.929462. [16] E. Franckx, The “new” arctic passages and the “old” law of the sea, in: H. Ringbom (Ed.), Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea, Koninklijke Brill NV, Leiden, 2015, pp. 194–216 https://doi.org/10.1163/ 9789004303508_009.
5. Conclusion Thus, it should be stated that “the shrinking of the ice cover in the Arctic does not imply changes to the national legal regimes applicable to Arctic waters based on Article 234 of the LOSC. Such an outcome would be opposite to the purpose and object of the Convention and inconsistent with primary and subsidiary means of its interpretation” [12], Clearly, the provisions of Article 234 should be applied in the light of current conditions and independent of existing and near-future changes in Arctic ice coverage. While the adoption of the Polar Code seems to be an outstanding attempt to improve the environmental protection regime of the Arctic, together with the enhancing the safety of Arctic navigation, one should not forget the significant role of the law-making activity of Arctic States. These States will continue to bear most of the responsibility for preventing pollution of the Arctic Ocean and protecting the Arctic environment. Considering this, we can hardly agree with the scholars heralding that one of the real purposes of the Polar Code should be eliminating or at least undermining the application of Article 234 in favor of universal international legal rules [39]. The main purpose of Article 234 is to preserve the sensitive Arctic marine environment. The melting Arctic ice does not remove that responsibility, indeed it makes it more relevant. Scientific evidence shows that the melting ice increases the vulnerability of the Arctic region [40]. The danger of pollution to the Arctic environment from oil spills and, increasingly, waste disposal, artificial lighting, and other negative consequences of intensified human activity in the region are higher every year. Furthermore, among other matters, the challenges to shipping in the Arctic remain, namely, the strong, continuing winds, snowstorms, reduced visibility in fog, snow, and long polar nights, and shifting and moving ice. Moreover, there are risks caused by freezing temperatures and the remoteness from navigational support and services. The majority of these navigational concerns are unaffected by the changing Arctic ice cover and exist independently of the melting ice. In this respect, it is worth noting, inter alia, that navigation in drifting ice is more dangerous and could increase the probability of accidents. Besides, 5
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[30] IPCC, Core Writing Team, R.K. Pachauri, L.A. Meyer (Eds.), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, IPCC, Geneva, Switzerland, 2014, p. 151 https://www.ipcc.ch/site/assets/uploads/2018/ 05/SYR_AR5_FINAL_full_wcover.pdf. [31] Federal Law N 132-FZ, On Amendments to Certain Legislative Acts of the Russian Federation Concerning State Regulation of Merchant Shipping on the Water Area of the Northern Sea Route, (July 28, 2012) Article 3. [32] K.E. Skodvin, Arctic shipping – still icy, in: M.H. Nordquist, J.N. Moor, R. Long (Eds.), Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries, Koninklijke Brill NV, Leiden, 2016, pp. 143–159 https://doi.org/10. 1163/9789004314252_012. [33] International Convention for the Safety of Life at Sea (1 November 1974, in Force 25 May 1980) 1184 UNTS 2, as Amended. [34] International Convention for the Prevention of Pollution from Ships (2 November 1973) 1340 UNTS 184 as Amended by Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships of 1973 (17 February 1978) 1340 UNTS 61 (In Force 2 October 1983), as Amended. [35] A.N. Vylegzhanin, G.G. Ivanov, I.P. Dubykina, Polar Code (assessments and comments in foreign legal sources), Moscow J. Int. Law. 4 (2015) 43–57. [36] A. Chircop, Jurisdiction over ice-covered areas and the polar Code: an emerging symbiotic relationship, J. Int. Marit. Law 22 (2016) 275–290. [37] J. Bobrova, The Northern Sea Route: National Regime in the Changing International Context, Policy Brief of Russian International Affairs Council, (7 December 2016), p. 9 http://russiancouncil.ru/common/upload/NorthernSeaRoute-Policybrief9-en. pdf. [38] Amendments to the Rules for Navigation in the Water Area of the Northern Sea Route Approved by the Order of the Ministry of Transport of the Russian Federation Dated January 17, 2013, No 7. Annex to Order of the Ministry of Transport of January 9 vol. 5, (2017) http://www.nsra.ru/files/fileslist/122-en-transl_asmp.pdf. [39] For example, Bognar argues that there is deep-seated conflict between regulations under Article 234 and the principle of freedom of navigation, which is undesirable for international legal order for many reasons, D. Bognar, The elephant in the room: article 234 of the law of the sea convention and the polar Code as an incompletely theorised agreement, Polar J. 8 (1) (2018) 182–203 https://doi.org/10.1080/ 2154896X.2018.1468627. [40] J. Ho, The implications of arctic sea ice decline on shipping, Mar. Pol. 34 (3) (2010) 713–715 https://doi.org/10.1016/j.marpol.2009.10.009. [41] A. Chircop, Climate change and the prospects of increased navigation in the Canadian arctic, WMU J. Marit. Aff. 6 (2) (2007) 193–205. [42] N. Marchenko, Floating ice induced Ship casualties, 22nd IAHR International Symposium on Ice, Singapore, August 11–15, 2014 www.unis.no/wp-content/ uploads/2014/12/FloatingIceInducedShipCasualties.pdf.
[17] S.P. Fields, Article 234 of the united nations convention on the law of the sea: the overlooked linchpin for achieving safety and security in the U.S. Arctic? Harv. Natl. Secur. J. 7 (1) (2016) 55–125 https://harvardnsj.org/wp-content/uploads/sites/ 13/2016/02/Fields-PUBLISH.pd. [18] T.L. McDorman, Canada-United States bilateral ocean law relations in the arctic, SW. J. Int. Law 5 (2009) 283–300. [19] Communication from the United Nations Environment Programme, 10 April 1981, UN Doc. A/Conf.62/112, http://www.un.org/en/ga/search/view_doc.asp? symbol=A/Conf.62/112. [20] SOR/2010-127 [NORDREG Regulations]. [21] Rules of Navigation in the Water Area of the Northern Sea Route, Approved by the Order of the Ministry of Transport of the Russian Federation No. 7 of January 17, (2013) http://www.nsra.ru/files/fileslist/120-en-rules_perevod_cniimf-13_05_ 2015.pdf. [22] Vienna Convention on the Law of Treaties (Vienna, 23 May 1969, in Force 27 January 1980) 1155 UNTS 332. [23] As Stated by the Permanent Court of Arbitration ‘the Threshold the Court Establishes for Accepting an Agreement on the Interpretation by State Practice Is Quite High’. The Threshold ‘requires “A ‘concordant, Common and Consistent’ Sequence of Acts or Pronouncements” to Establish a Pattern Implying Agreement of the Parties Regarding a Treaty's Interpretation’. South China Sea Arbitration (Philippines V China), Award, PCA Case No 2013-19, (12 July 2016) para. 552 https://pcacases.com/web/sendAttach/2086. [24] U.S. Navy, Arctic Roadmap 2014-2030, (February 2014), p. 7 https://info. publicintelligence.net/USNavy-ArcticRoadmap.pdf. [25] U. Linderfalk, Is treaty interpretation an art or a science? International law and rational decision making, Eur. J. Int. Law 26 (1) (2015) 169–189 https://doi.org/ 10.1093/ejil/chv008. [26] K. Bartenstein, The “arctic exception” in the law of the sea convention: a contribution to safer navigation in the northwestern passage? Ocean Dev. Int. Law 42 (1–2) (2011) 22–52 https://doi.org/10.1080/00908320.2011.542104. [27] R.D. Brubaker, The Russian Arctic Straits. International Straits of the World, Martinus Nijhoff Publishers, 2005 (Book 14). [28] O.M. Johannessen, M.W. Miles, Critical vulnerabilities of marine and sea ice–based ecosystems in the high arctic, Reg. Environ. Change 11 (Suppl 1) (2011) 239–248 https://doi.org/10.1007/s10113-010-0186-5. [29] Kum and Sahin provide a chart on underlying causes of marine accidents in polar waters, which indicates that a number of those accidents are the result of circumstances unrelated or at least partially unrelated to presence of ice, such as vessel movement, weather conditions, strong winds, poor visibility (darkness), and slippery surfaces, S. Kum, B. Sahin, A root cause analysis for arctic marine accidents from 1993 to 2011, Saf. Sci. 74 (2015) 206–220 https://doi.org/10.1016/j.ssci. 2014.12.010.
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Marine Policy journal homepage: www.elsevier.com/locate/marpol
Article 234 of the 1982 United Nations Convention on the law of the sea and reduction of ice cover in the Arctic Ocean Viatcheslav Gavrilov∗, Roman Dremliuga, Rustambek Nurimbetov School of Law, Far Eastern Federal University, Vladivostok, Russia
A R T I C LE I N FO
A B S T R A C T
Keywords: UN convention on the law of the sea Arctic ocean Legal regulation Environmental protection Interpretation of treaties Article 234 Rights of coastal states Polar code
The article analyzes the reasons for developing and including Article 234 of the 1982 Convention of the Law of the Sea. Article 234 provides coastal States with special rights to adopt laws and regulations in order to prevent, reduce and control marine pollution in ice-covered areas within their exclusive economic zone. Based on the analysis of 1969 Convention on the Law of Treaties and the Law of the Sea Convention itself, the authors conclude that provisions of Article 234 should be regarded as a special legal mechanism for protecting marine areas in the Arctic region. Therefore, implementation of Article 234 cannot be changed or cancelled as a result of ice cover reduction in the Arctic Ocean or following the entry into force of the Polar Code, which establishes new rules of navigation in the Arctic waters.
1. Introduction It has repeatedly been emphasized in Russian scholarly sources that the integrity and specifics of the Northern Sea Route's (NSR) legal status, as well as the authority of Russia to control its usage by different countries may be substantiated both by logistic continuity and by indivisibility of the NSR itself and by the particularities of the region through which it passes [1–3]. Such particularities determine the “leading role of Arctic coastal States in specifying [the] legal regime of Arctic marine regions” [4]. This in turn offers an opportunity for Arctic coastal States to specify, at both the regional and national level, universal norms of the international law of the sea related to coastal maritime spaces [5]. Article 234 of the 1982 United Nations Convention on the Law of the Sea (LOSC) [6] supports this conclusion. Article 234 provides that “coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance”. Despite the absence of a definition of “ice-covered areas” in the Article, international scholars and practice suggest that the whole Arctic region should fall under this definition [7].
∗
Clearly, proceeding from the meaning of Article 234, national laws and regulations on “prevention, reduction and control of marine pollution from vessels” may, among other things, extend their scope to cover maritime navigation in certain Arctic coastal areas. The unpredictability of Arctic navigation considerably increases the possibility of various hazards from shipping activities, including marine environment pollution. Although this gives Russia and Canada legal grounds for establishing control over shipping in the NSR and Northwest Passage, is not entirely acceptable to other States. Thus, one should expect widespread discussion on whether the application of Article 234 provisions is still reasonable or if it is necessary to be reinterpreted as a result of rapidly melting sea ice. For example, according to Rothwell, the Article 234 provisions will only provide for enhanced marine environmental protection measures for Arctic coastal States for as long as EEZ waters in the Arctic Ocean are ice-covered for half a year plus one day, after which the ongoing application of pre-existing measures would be legally dubious. This means that Canada and the Russian Federation may need to reassess some of their Arctic marine environmental protection laws [8]. Certain issues in respect to environmental protection may arise following the entry into force on January 1, 2017, of the Polar Code, which was developed under the authority of the International Maritime Organization. The Code stipulates a series of additional requirements for vessels and crews performing Arctic navigation [9]. According to certain scholars, provisions of the Code may also affect the rights of Arctic coastal States to adopt special laws and rules under Article 234
Corresponding author. E-mail addresses: [email protected] (V. Gavrilov), [email protected] (R. Dremliuga), [email protected] (R. Nurimbetov).
https://doi.org/10.1016/j.marpol.2019.103518 Received 6 November 2018; Received in revised form 1 May 2019; Accepted 2 May 2019 0308-597X/ © 2019 Elsevier Ltd. All rights reserved.
Please cite this article as: Viatcheslav Gavrilov, Roman Dremliuga and Rustambek Nurimbetov, Marine Policy, https://doi.org/10.1016/j.marpol.2019.103518
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may be attached to the Arctic polar waters exclusively [13]. Since adoption of the Convention, the provisions of Article 234 for special control to prevent marine pollution in ice-covered areas proposed by Canada and Russia (accompanied by notable silence from the United States) have been accepted by other countries. The United Nations Environment Programme also supported the basis of this Article, emphasizing the importance and practical value of the Arctic region in the view of the United Nations [19]. The United States, from its side, has accepted the provisions of Article 234 as a part of customary international law [12]. Up to the present day, interpretation of the application of the terms and general provisions of Article 234 has been controversial. Only Canada and Russia have adopted special laws and rules in this regard, but even those are opposed by interested States and international institutions. For example, in 2010, Canada enacted the Northern Canada Vessel Traffic Zone Regulations (NORDREG) [20], which established mandatory reporting requirements to an authority in the Canadian Coast Guard when a vessel enters specific Arctic maritime spaces. Russia, in its Rules of Navigation in the Water Area of the Northern Sea Route of 2013 [21], has established an authorization-based procedure for passing through the Northern Sea Route by domestic and foreign vessels, including portions of the Russian EEZ that are part of the NSR water area [5]. Over the years, these practices have been consistently criticized by the United States. It argues that while exercising rights stipulated under Article 234, Canada and Russia created unwarranted restrictions for other States to exercise their right to the freedom of navigation in the Arctic Ocean, a right that is widely recognized in the contemporary international law of the sea [13]. Without going any deeper into analyzing arguments behind the positions of parties to these disputes, let us note that the mere fact of their existence is yet another confirmation that there are significant differences in national approaches to the interpretation of Article 234, even by Arctic coastal States. That is why current law-making activity in that sphere may not be taken into consideration in interpreting provisions of Article 234, as stipulated in Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties [22], because it does not meet the requirements set today by international courts [23].
[10]. The main goal of this article is to provide a legal assessment of the possibility for Arctic coastal States to continue to apply the provisions of Article 234 under conditions of reduced ice cover in the Arctic Ocean. Following a brief history of the development, adoption and application of Article 234, the content of its provisions are reviewed in a historical context and interpreted in accordance with the 1969 Vienna Convention on the Law of Treaties. Discussion then turns to the problem of finding a balance between the application of the provisions of Article 234 and the rules of the Polar Code. 2. A brief history of article 234 It is generally known that Article 234 was included in the LOSC on the initiative of Canada. Canada sought the international legal, and even further, universal, justification of its unilateral action of promulgation of the Arctic Waters Pollution Prevention Act (AWPPA) in 1970 [11]. The AWPPA provided Canadian authorities with the right to control navigation of any vessel, whether Canadian or foreign flagged, within Canada's claimed Arctic marine area. During the negotiation of LOSC, Canada actively pushed the idea of creating a special legal regime in ice-covered areas. It argued that, due to the high risk of causing harm to the marine environment because of the unique characteristics of the region, stricter national rules and standards may be required in comparison with those existing on the international level [12]. In Canada's view, the demand for creating such a regime was driven by the necessity to protect the fragile environment of the Arctic from external adverse impacts caused by the potential expansion of resource exploitation by multinational companies and international navigation in the region. From a Canadian point of view, it was impossible to solve that task by means of Article 211(6) of the LOSC, which granted coastal States the right to adopt special laws and regulations for environmental protection within clearly defined areas of their exclusive economic zone [13]. Article 211(6) requires such laws and regulations to be approved by a competent international organization. Canada argued that they could not regulate the standards of design, construction, manning or equipment of foreign vessels, which should be in compliance with the international norms in force. From a Canadian perspective, the provisions of Article 211 did not ensure the international acknowledgement of the scope of environmental rights in the Arctic they had already secured under the AWPPA [14]. Moreover, many negotiating States expressed their concerns that further expansion of coastal States’ normmaking competency in terms of environmental protection within the EEZ could lead to unlimited discretion and abuse of authority on their part [13]. One of Canada's primary objectives during the development of the Convention's text became a search for potential allies among maritime powers to promote the idea of establishing a special legal regime for environmental protection in ice-covered areas to legally divide them from any other vulnerable sections of the World Ocean [15]. During negotiations, it was agreed that the terms “Arctic waters” and “icecovered areas” should be treated as identical for the purposes of the LOSC [16]. At least there have been no observed objections to this interpretation of the terminology. Although the United States has maintained another position in terms of the international legal status of the Northwest Passage and freedom of international navigation there through [17,18], it has ultimately agreed with the need to create a special legal regime for the environmental protection of Arctic waters. While the authoritative Virginia Commentary of the LOSC recognizes that some zones in the southern hemisphere ‘reasonably meet criteria of an ice-covered area’, it notes that article 234 was developed with northern hemisphere in mind, which is why it is often referred to as the ‘Arctic Article’. With no southern States showing interest in its provisions during the LOSC negotiations and no State practice applying Article 234 in Antarctic polar waters, it seems that its territorial scope
3. Article 234 and its current interpretation As discussed above, Article 234 of the Convention gives coastal States the right “to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone”. Moreover, under its provisions, such norm-making activity by a State shall be possible where 1) there are considerable obstructions or exceptional hazards to navigation in those areas; 2) pollution of marine environment could cause major harm to or irreversible disturbance to the ecological balance; and 3) relevant laws and regulations have due regard to reliable scientific findings on the impacts of navigation on the protection and preservation of the marine environment. Article 234 includes a series of additional characteristics that should be met by ice-covered areas, namely the presence of severe climatic conditions and ice covering such areas for most of the year. The inclusion of such specific climatologic criteria into the text of Article 234 for determining its territorial scope evidently shows that, at the time of the negotiations, nobody thought of the possibility of ice melting in the future. However, during the twentieth and twenty-first centuries that issue has gained great practical significance. For example, according to some reports, soon after 2030 major waterways [in the Arctic] are predicted to be consistently open, with a significant increase in traffic over summer months. The Northern Sea Route and Transpolar Route should be navigable 130 days per year, with open water passage up to 75 days per year. The Northwest Passage will be increasingly open during the late summer 2
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its literal meaning, which gives us understanding of the territorial scope of the coastal States' rights, or it may also mean “when”, which dictates certain time constraints to the Article's application [26]. Accordingly, the rights of coastal States stipulated under Article 234 should operate not only within some pre-determined ice-covered geographical area, which obviously has practical limits determined by climatic conditions, but also within specific time periods when those natural conditions actually are in place in those areas. However, it is generally accepted in both Russian and Canadian State practice that literal interpretation of the word “where” is preferable and certainly more practical and consistent than its interpretation as “where and when” [26,27], since it allows a more reliable basis for planning governance over such areas. As has been fairly noted by Bartenstein, “conditions listed in Article 234 do not shift twice a year at a predictable moment and do not shift in an abrupt manner but pass through transitional situations impossible to qualify definitively. Furthermore, conditions do not shift for all parts of the different seaways at the same time, nor do they for all parts” [26]. As has already been discussed in professional literature, practical implementation of a so-called “twin-set” regime of Arctic exclusive economic zones may prove to be burdensome for coastal States, since there is no reliable methodology allowing precision when deciding whether an area qualifies as one “covered by ice for most of the year” or not [26]. Considering the foregoing, it may be deduced that an interpretation that potentially undermines successful enforcement of a treaty should not be recognized as authentic, in either a legal or general sense. Clearly, understanding of a legal norm's territorial scope is one of the basic requirements of its successful application. Thus, it may be stated that actual ice presence in “ice-covered areas” at any given moment is not mandatory for those areas to be included in the scope of Article 234. Its provisions naturally imply a certain temporal generalization, which can easily be explained by the technical impossibility of reliable and long-term ice-cover shifting forecasting. Overall, the successive interpretations of Article 234 show that the legal term “ice-covered areas” has little to do with the objective presence of ice in marine areas at any particular moment and, consequently, with the “natural” meaning of an “ice-covered area” itself. The foregoing statement can be proved by the fact that, first, the wording “presence of ice” is paired with the wording “particularly severe climatic conditions”, which appears to be very broad since the LOSC provides no explanation of which climatic conditions may be interpreted as “particularly severe” in terms of their source, intensity or stability. This assumes that both wordings are homogenous when it comes to their interpretation and encourages the reader to see them as generally accepted characteristics of Arctic waters rather than a set of normative requirements to be used for those areas’ identification. Second, it is implied that the wording “ice covering such areas” is associated with the wording “obstructions or exceptional hazards to navigation”, which explains one of the reasons for the Article's origin. However, is not the only one, another substantive reason being pollution causing “major harm to or irreversible disturbance of the ecological balance”. Nevertheless, considering the linguistic construction of the Article, the wording “presence of ice” does not address the environmental element, which obviously means that potential pollution of the marine environment should be considered without being bound to permanent ice cover of the area. Many ecological studies show that the reduction of Arctic ice cover does not make local ecosystems more stable and, in fact, quite the opposite—they become more vulnerable [28]. Third, the very term “ice-covered areas” should not be interpreted literally, since there are different degrees of “cover”, each of which has different consequences for navigation and requires different organizational and technical solutions. This leads us to a whole spectrum of possible interpretations of what may actually be “ice-covered areas”. This also means that for the purposes of legal integrity, coastal States should maintain their rights in ice-covered areas no matter what the
and early fall [24]. This has brought the following high-priority issue to the international political and legal agenda: What consequences will the disappearance of polar ice have on the rights of Arctic Coastal States under Article 234 of the LOSC? and how should its provisions be interpreted under current conditions and in the immediate future? At first, it may seem that the steady decline in Arctic ice coverage could have a negative impact on the future application of Article 234 and call into question the rights of Arctic coastal States to adopt special laws and regulations provided for therein. In as few as several years, the provision stipulating the necessity of presence of ice-covered areas within the limits of the EEZ for most of the year may not be consistent with reality. However, will this fact serve as sufficient legal basis to cancel the Article? In order to answer this question it is critical to, first, refer to the LOSC itself, which, according to Article 31(1) of the 1969 Vienna Convention on the Law of Treaties [22], should be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. This means that one should not rely solely on a literal interpretation of Article 234, whereby its provisions are limited only to areas where the ice covers the sea for most of the year. In such a case, a reverse statement also must be true, when marine areas are free of the ice cover for more than six months, they should not be subject to Article 234 and thus fall under another legal regime. Considering these provisions of the 1969 Vienna Convention, such an interpretation of Article 234 is insufficiently substantiated from a legal point of view. In order to grasp its true essence, one should not be guided solely by the literal meaning of the terms used therein, but also by their ordinary meaning, taking into account the intentions of the drafters of the UN Convention on the Law of the Sea. Proceeding from Article 31(1) of the 1969 Vienna Convention, such ordinary meaning shall be about treating the term “ice-covered areas” as synonymous to the Arctic maritime spaces as a whole, because the communicated intention of the parties [25] when concluding the LOSC was to establish a special legal regime solely for the EEZ waters of the Arctic Ocean. It is obvious that their understanding was that such a special regime was intended to establish additional legal guarantees for the Arctic region's sustainable and safe use, rather than providing special rights and privileges to Arctic coastal States. It is evident that the principal negotiators and beneficiaries of Article 234, Russia and Canada, intended Article 234 to legitimize at the international level their already existing national rules in order to decrease the risk of marine environmental pollution from foreign nongovernmental vessels traversing Arctic waters [17]. When drafting and adopting the LOSC, they were supported by other States, and Article 234 was included in the Convention as the only element of section VIII, Part XII (Protection and Preservation of the Marine Environment), which made it a classic lex specialis among other provisions of the LOSC devoted to the protection of the marine environment of a specified and clearly delineated region [13]. With such an understanding of the situation, the provisions of Article 234 on the presence of ice covering certain water areas should be treated not as an indispensable prerequisite for gaining or losing special rights by coastal States, but as a means for the geographical delimitation of the region in which those rights are to be exercised and which need special legal protection—that is, the Arctic. In other words, the term “ice-covered” has been chosen to divide the Arctic from other vulnerable zones or special areas. It was a legal technicality, rather than an intention to link the special legal regime in the Arctic with the condition of ice coverage in the Arctic Ocean. Another argument for the technical irrelevance of the actual ice cover presence for the rights of coastal States stipulated by Article 234 is the universal acceptance of the interpretation of the word “where” in the text. By being very vague, the word “where” may be understood in 3
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that respect, however, one could argue that due to the fact that “legal action under Article 234 consists of both prescriptive action in the form of laws and regulations and enforcement action to ensure respect for those laws and regulations” [26] ‘due regard’ would not be subject to the limitations listed under Article 220(3), (5) and (6) of the LOSC [13]. The coastal State should also pay a “due regard to … protection and preservation of the marine environment based on the best available scientific evidence”, in its regulations under Article 234. This requirement is the final element of the Article and obliges the coastal State to justify its actions, based on suitable scientific studies [13]. Nevertheless, one should agree that, similarly to ‘due regard to navigation’, an Arctic coastal State “could probably without difficulty defend its allencompassing environmental provisions under this unclear, broad expression, especially considering the broad ‘precautionary principle’ utilised in international environmental law” [27]. It is also evident that both ‘due regard’ and ‘best available scientific evidence’ can be used in dispute resolution “in order to safeguard the freedom of navigation against random or uninformed control exercised by the coastal State” [13].
spatial coverage of ice is at any given moment, because the reason of the very existence of Article 234 remains intact. One way or another, taking into consideration the logical analysis of the Article's content, as well as the history of its creation, there is no denying that the purpose of granting special rights to Arctic coastal States within their EEZ was to ensure a higher level of navigation safety and to tighten control over vessel-source pollution, which are required due to natural features of the Arctic region. As of today, there are no grounds to believe that melting Arctic ice can by itself protect vessels navigating in the area from natural perils or improves existing ecological conditions. This is substantiated by research on the safety of navigation [29] and findings on the impacts of global warming on the World Ocean and the Earth's cryosphere [30]. However, can anyone claim that maritime spaces of the Arctic Ocean will preserve the capability of being treated as “ice-covered areas” if they lose their ice cover in the future? The answer to this question is unknown and should be a subject of independent research on the possibilities and limitations of application of Article 234 in conditions of such fundamental climatic change. This research needs to address additional issues, the most important of which is the territorial scope of Article 234. The answer becomes essential if, as was shown above, “ice-covered areas” are treated as a definition determining areas physically covered by ice. In such a case, to which part of the Arctic region should the regime established by Article 234 apply? The most evident answer to this question is that since Article 234 itself formally refers to national laws and rules in force within the exclusive economic zone of a coastal State, its territorial scope shall also be restricted by the limits of those marine areas as determined by national law. In other words, a coastal State may exercise the right granted thereto of establishing special measures for ensuring environmental protection and navigation safety within the limits of its EEZ, which, in turn, will fall within the Arctic Circle. Provisions of Article 234 do not stipulate the possibility of its provisions being extended to the areas of the Arctic Ocean that have the status of high seas. Such an understanding of the territorial scope of Article 234 is supported by the fact that Canada [11] and Russia [31] have restricted the scope of their national legislation on special navigation conditions in the Arctic to the outer limits of their EEZ. When analyzing the content of Article 234, special attention should be given to the notion ‘due regard to navigation’, which is one of the few explicit limits on the power granted to the coastal State. However, it does not provide a clear understanding of how exactly this limit is to be understood, which entails different interpretations of this notion. On the one hand, it is assumed that the notion ‘due regard’ requires, at a minimum, a certain degree of reasonableness and implies that the coastal State must allow some navigation [13]. On the other, there are strong reasons to believe “that this clause was coined by the negotiating States to elude to the necessity of determining the exact extent of the acknowledgement of the international navigation and to leave it up to practice to give form to it” and that “Article 234 was intended to acknowledge a navigational regime of its own” [26]. In other words, “under Article 234 a coastal State must be able to demonstrate that it has considered the effect upon navigation of any measure to be implemented” [32]. However, the content of such measures may be predetermined only in the most general form by other provisions of the LOSC on navigation. That is why a hypothetical situation can be imagined where “even measures that have the effect of totally eliminating navigation in an area may be said to have had due regard, provided that the environmental hazards associated with navigation are sufficiently serious” [32]. Thus, it is fair to say that Article 234 provides for the possibility of the Arctic States creating a special legal regime for navigation within their EEZs, which may be different from that established by other articles of the Convention. However, it is still uncertain whether corresponding rights of coastal States entail broader enforcement power. In
4. The Polar Code and article 234 To better understand Article 234, it is also necessary to consider Article 31(2) of the 1969 Vienna Convention. Article 31(2) stipulates that an additional method of interpretation is the use of “any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty” and “any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty” [22]. In this respect it is important to note that although Arctic States have concluded a number of Arctic regional treaties and other documents, none of them indicate whether or not the regime based on Article 234 of the LOSC has been or is to be changed in light of the shrinking ice cover. Moreover, it is noteworthy that, from a strictly legal point of view, regional agreements may not be useful for interpreting relations between Arctic and non-Arctic States based on Article 234 in the case of ice melting, since they may not be treated as treaties concluded “between all the parties” of the LOSC. Like regional agreements, under current conditions, universal international treaties cannot cancel or alter Article 234 unless directly aimed at altering or cancelling it and concluded in a manner and under the authority of States sufficient for achieving that goal, as stipulated in Articles 312 and 313 of the Convention. Therefore, for example, the Polar Code [9], which entered into force on January 1, 2017, does not affect the special rights of Arctic States to unilaterally establish national standards for vessel activity in their EEZs in the Arctic Ocean. There are several reasons to reach this conclusion. First, the Polar Code fails to stipulate the necessity of altering or cancelling provisions of the LOSC. From a strictly technical point of view, it only introduces amendments to the SOLAS (International Convention for the Safety of Life at Sea, 1974) [33] and MARPOL (International Convention for the Prevention of Pollution from Ships 1973/1978) [34] conventions [35]. Second, there are no contradictions between the Code and the LOSC, since the mere possibility of adoption of the Code is anticipated by, for example, Article 211 (1) of the LOSC, which states that “States acting through the competent international organization or general diplomatic conference shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels”. By virtue of the fact that the Polar Code does not override Article 234, it places into question the laws and regulations already adopted by Arctic States that control, for example, navigation through the Northwest Passage and the Northern Sea Route. Further, technical, information and other requirements for vessels, their crews and navigation stipulated in such laws and regulations should at least be equal 4
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drifting ice creates additional dangers in narrow straits and channels [41]. Most incidents in the Arctic Ocean in recent years were caused by nothing but drifting ice [42]. All this means that melting ice-cover makes Arctic navigation undoubtedly much more dangerous. Disruption of national legal regimes based on Article 234 of the LOSC and the permission of navigation in the Arctic under lower common standards could lead to serious, irrevocable consequences for the Arctic environment. The goals and purposes taken into consideration during negotiations of the LOSC and the subsequent behavior of States in implementing and applying its provisions lead to the conclusion that Article 234 retains its effectiveness in conditions of shrinking Arctic ice coverage and will probably remain of practical use as long as the original considerations of increased responsibility of a coastal State for the safety of navigation and environmental protection in its EEZ remain at the top of the international agenda. The environment of the Arctic is more vulnerable now than it has ever been because of the increase in navigational threats, and there is expectation that this will only become stronger over time. Therefore, it is in every Arctic nation's and other countries' interest to retain existing national regulations within the Arctic legal regimes based on Article 234 of the LOSC at the present stage and into the future.
to those set out in the Code. As has been fairly stated in academic literature, in terms of the Arctic States, the Polar Code's provisions should be treated as another basis for applying Article 234. The Code “provides coastal States with the power to elevate those standards further as long as the exercise of the power satisfies the criteria of the provision [of this Article]” [36]. Even today, Canada and the Russian Federation have requirements for polar shipping that do not appear in the Polar Code or in amendments to key conventions. For example, both States prescribe mandatory reporting for vessels planning to enter Arctic waters, while navigating and before exiting. The Code does not require an experienced ice pilot or navigator on board, whereas the Russian Federation regulates ice pilotage requirements in detail and Canada also requires ice navigators for certain areas [36]. The right of coastal States to establish stricter requirements for Arctic navigation, compared to those stipulated by the Polar Code, does not, however, relieve them of their obligation to introduce changes to their national laws in cases where their provisions are not consistent with those of the Code or are more permissive compared thereto. With regard to Russia, one of the most evident and simple alterations would be the introduction of the Polar Ship Certificate and Polar Water Operational Manual into the list of documents required to issue permits for navigating through the NSR, taking into consideration requirements and restrictions mentioned therein [37]. Another necessary alteration is establishing a correlation between ice strengthening categories of vessels stipulated in the Rules of Navigation in the Water Area of the Northern Sea Route of January 17, 2013 [21], and the ice classes provided for in the Polar Code [38].
Declarations of interest None. References [1] V.I. Peresypkin, A.N. Yakovlev, Northern Sea Route in international traffic passages problem, Transp. Russ. Fed. 2 (2006) 16–19. [2] A.V. Istomin, S.M. Leus, Northern Sea Route: organizational and economic problems of its renaissance and development, North. Mar.: Form. Eco. Order. 2 (23) (2009) 27–32. [3] V.P. Karpov, Northern Sea Route as an arctic exploration tool, Ural. Hist. Messenger 2 (43) (2014) 108–114. [4] A.N. Vylegzhanin, Introduction, in: A.V. Zagorsky, A.I. Nikitin (Eds.), International Cooperation in the Sphere of Environmental Protection, Preservation and Sustainable Management of Biological Resources in the Arctic Ocean: Materials of the International Scientific Symposium, Russian Political Science Association, Russian Political Encyclopedia, Moscow, 2012, pp. 4–8. [5] V.V. Gavrilov, Legal status of the Northern Sea Route of the Russian federation, Ocean Dev. Int. Law 46 (3) (2015) 256–263 https://doi.org/10.1080/00908320. 2015.1054746. [6] United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in Force 16 November 1994) 1833 UNTS 397. [7] Y. Tanaka, The International Law of the Sea, Cambridge University Press, New York, 2012https://doi.org/10.1017/CBO9780511844478. [8] D.R. Rothwell, Law of the sea and arctic governance, Proceeding of the Annual Meeting (American Society of International Law): International Law in a Multipolar World, vol. 107, 2013, pp. 272–275 https://doi.org/10.5305/procannmeetasil.107. 0272. [9] International Code for Ships Operating in Polar Waters (Polar Code), http://www. imo.org/en/MediaCentre/HotTopics/polar/Documents/POLAR%20CODE %20TEXT%20AS%20ADOPTED.pdf. [10] T.L. McDorman, A note on the potential conflicting treaty rights and obligations between the IMO's polar Code and article 234 of the law of the sea convention, in: S. Lalonde, T.L. McDorman (Eds.), International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, Koninklijke Brill NV, Leiden, 2015, pp. 141–159 https://doi.org/10.1163/9789004284593_008. [11] Arctic Waters Pollution Prevention Act, R.S.C., 1985 c. A-12. [12] R. Dremliuga, A note on the application of article 234 of the law of the sea convention in light of climate change: views from Russia, Ocean Dev. Int. Law 48 (2) (2017) 128–129 https://doi.org/10.1080/00908320.2017.1290486. [13] L. Boone, E. Franckx, Article 234. Ice-covered areas, in: Proelss Alexander (Ed.), United Nations Convention on the Law of the Sea: A Commentary, CH Beck, München, 2017, pp. 1566–1585. [14] A. Mestral, Article 234 of the united nation convention on the law of the sea. Its origins and its future, in: S. Lalonde, T.L. McDorman (Eds.), International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, Koninklijke Brill NV, Leiden, 2015, pp. 109–124 https://doi.org/10.1163/9789004284593_006. [15] J. Kraska, Governance of ice-covered areas: rule construction in the Arctic Ocean, Ocean Dev. Int. Law 45 (3) (2014) 260–271 https://doi.org/10.1080/00908320. 2014.929462. [16] E. Franckx, The “new” arctic passages and the “old” law of the sea, in: H. Ringbom (Ed.), Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea, Koninklijke Brill NV, Leiden, 2015, pp. 194–216 https://doi.org/10.1163/ 9789004303508_009.
5. Conclusion Thus, it should be stated that “the shrinking of the ice cover in the Arctic does not imply changes to the national legal regimes applicable to Arctic waters based on Article 234 of the LOSC. Such an outcome would be opposite to the purpose and object of the Convention and inconsistent with primary and subsidiary means of its interpretation” [12], Clearly, the provisions of Article 234 should be applied in the light of current conditions and independent of existing and near-future changes in Arctic ice coverage. While the adoption of the Polar Code seems to be an outstanding attempt to improve the environmental protection regime of the Arctic, together with the enhancing the safety of Arctic navigation, one should not forget the significant role of the law-making activity of Arctic States. These States will continue to bear most of the responsibility for preventing pollution of the Arctic Ocean and protecting the Arctic environment. Considering this, we can hardly agree with the scholars heralding that one of the real purposes of the Polar Code should be eliminating or at least undermining the application of Article 234 in favor of universal international legal rules [39]. The main purpose of Article 234 is to preserve the sensitive Arctic marine environment. The melting Arctic ice does not remove that responsibility, indeed it makes it more relevant. Scientific evidence shows that the melting ice increases the vulnerability of the Arctic region [40]. The danger of pollution to the Arctic environment from oil spills and, increasingly, waste disposal, artificial lighting, and other negative consequences of intensified human activity in the region are higher every year. Furthermore, among other matters, the challenges to shipping in the Arctic remain, namely, the strong, continuing winds, snowstorms, reduced visibility in fog, snow, and long polar nights, and shifting and moving ice. Moreover, there are risks caused by freezing temperatures and the remoteness from navigational support and services. The majority of these navigational concerns are unaffected by the changing Arctic ice cover and exist independently of the melting ice. In this respect, it is worth noting, inter alia, that navigation in drifting ice is more dangerous and could increase the probability of accidents. Besides, 5
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[30] IPCC, Core Writing Team, R.K. Pachauri, L.A. Meyer (Eds.), Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, IPCC, Geneva, Switzerland, 2014, p. 151 https://www.ipcc.ch/site/assets/uploads/2018/ 05/SYR_AR5_FINAL_full_wcover.pdf. [31] Federal Law N 132-FZ, On Amendments to Certain Legislative Acts of the Russian Federation Concerning State Regulation of Merchant Shipping on the Water Area of the Northern Sea Route, (July 28, 2012) Article 3. [32] K.E. Skodvin, Arctic shipping – still icy, in: M.H. Nordquist, J.N. Moor, R. Long (Eds.), Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries, Koninklijke Brill NV, Leiden, 2016, pp. 143–159 https://doi.org/10. 1163/9789004314252_012. [33] International Convention for the Safety of Life at Sea (1 November 1974, in Force 25 May 1980) 1184 UNTS 2, as Amended. [34] International Convention for the Prevention of Pollution from Ships (2 November 1973) 1340 UNTS 184 as Amended by Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships of 1973 (17 February 1978) 1340 UNTS 61 (In Force 2 October 1983), as Amended. [35] A.N. Vylegzhanin, G.G. Ivanov, I.P. Dubykina, Polar Code (assessments and comments in foreign legal sources), Moscow J. Int. Law. 4 (2015) 43–57. [36] A. Chircop, Jurisdiction over ice-covered areas and the polar Code: an emerging symbiotic relationship, J. Int. Marit. Law 22 (2016) 275–290. [37] J. Bobrova, The Northern Sea Route: National Regime in the Changing International Context, Policy Brief of Russian International Affairs Council, (7 December 2016), p. 9 http://russiancouncil.ru/common/upload/NorthernSeaRoute-Policybrief9-en. pdf. [38] Amendments to the Rules for Navigation in the Water Area of the Northern Sea Route Approved by the Order of the Ministry of Transport of the Russian Federation Dated January 17, 2013, No 7. Annex to Order of the Ministry of Transport of January 9 vol. 5, (2017) http://www.nsra.ru/files/fileslist/122-en-transl_asmp.pdf. [39] For example, Bognar argues that there is deep-seated conflict between regulations under Article 234 and the principle of freedom of navigation, which is undesirable for international legal order for many reasons, D. Bognar, The elephant in the room: article 234 of the law of the sea convention and the polar Code as an incompletely theorised agreement, Polar J. 8 (1) (2018) 182–203 https://doi.org/10.1080/ 2154896X.2018.1468627. [40] J. Ho, The implications of arctic sea ice decline on shipping, Mar. Pol. 34 (3) (2010) 713–715 https://doi.org/10.1016/j.marpol.2009.10.009. [41] A. Chircop, Climate change and the prospects of increased navigation in the Canadian arctic, WMU J. Marit. Aff. 6 (2) (2007) 193–205. [42] N. Marchenko, Floating ice induced Ship casualties, 22nd IAHR International Symposium on Ice, Singapore, August 11–15, 2014 www.unis.no/wp-content/ uploads/2014/12/FloatingIceInducedShipCasualties.pdf.
[17] S.P. Fields, Article 234 of the united nations convention on the law of the sea: the overlooked linchpin for achieving safety and security in the U.S. Arctic? Harv. Natl. Secur. J. 7 (1) (2016) 55–125 https://harvardnsj.org/wp-content/uploads/sites/ 13/2016/02/Fields-PUBLISH.pd. [18] T.L. McDorman, Canada-United States bilateral ocean law relations in the arctic, SW. J. Int. Law 5 (2009) 283–300. [19] Communication from the United Nations Environment Programme, 10 April 1981, UN Doc. A/Conf.62/112, http://www.un.org/en/ga/search/view_doc.asp? symbol=A/Conf.62/112. [20] SOR/2010-127 [NORDREG Regulations]. [21] Rules of Navigation in the Water Area of the Northern Sea Route, Approved by the Order of the Ministry of Transport of the Russian Federation No. 7 of January 17, (2013) http://www.nsra.ru/files/fileslist/120-en-rules_perevod_cniimf-13_05_ 2015.pdf. [22] Vienna Convention on the Law of Treaties (Vienna, 23 May 1969, in Force 27 January 1980) 1155 UNTS 332. [23] As Stated by the Permanent Court of Arbitration ‘the Threshold the Court Establishes for Accepting an Agreement on the Interpretation by State Practice Is Quite High’. The Threshold ‘requires “A ‘concordant, Common and Consistent’ Sequence of Acts or Pronouncements” to Establish a Pattern Implying Agreement of the Parties Regarding a Treaty's Interpretation’. South China Sea Arbitration (Philippines V China), Award, PCA Case No 2013-19, (12 July 2016) para. 552 https://pcacases.com/web/sendAttach/2086. [24] U.S. Navy, Arctic Roadmap 2014-2030, (February 2014), p. 7 https://info. publicintelligence.net/USNavy-ArcticRoadmap.pdf. [25] U. Linderfalk, Is treaty interpretation an art or a science? International law and rational decision making, Eur. J. Int. Law 26 (1) (2015) 169–189 https://doi.org/ 10.1093/ejil/chv008. [26] K. Bartenstein, The “arctic exception” in the law of the sea convention: a contribution to safer navigation in the northwestern passage? Ocean Dev. Int. Law 42 (1–2) (2011) 22–52 https://doi.org/10.1080/00908320.2011.542104. [27] R.D. Brubaker, The Russian Arctic Straits. International Straits of the World, Martinus Nijhoff Publishers, 2005 (Book 14). [28] O.M. Johannessen, M.W. Miles, Critical vulnerabilities of marine and sea ice–based ecosystems in the high arctic, Reg. Environ. Change 11 (Suppl 1) (2011) 239–248 https://doi.org/10.1007/s10113-010-0186-5. [29] Kum and Sahin provide a chart on underlying causes of marine accidents in polar waters, which indicates that a number of those accidents are the result of circumstances unrelated or at least partially unrelated to presence of ice, such as vessel movement, weather conditions, strong winds, poor visibility (darkness), and slippery surfaces, S. Kum, B. Sahin, A root cause analysis for arctic marine accidents from 1993 to 2011, Saf. Sci. 74 (2015) 206–220 https://doi.org/10.1016/j.ssci. 2014.12.010.
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