Ice-Covered Areas, Immunity and Liability

In one line

Four articles close Part XII: one for the Arctic, one for warships, one for other conventions, and one that promises a liability regime that has never been made.

In exam wording: article 234 of the United Nations Convention on the Law of the Sea 1982 permits coastal States to adopt and enforce non-discriminatory laws for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone; article 235 provides that States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment and shall be liable in accordance with international law, and shall cooperate in the implementation and further development of international law relating to responsibility and liability; article 236 preserves the sovereign immunity of warships and government non-commercial vessels; and article 237 governs the relationship with other conventions on the protection and preservation of the marine environment.

Article 234: ice-covered areas

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. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.

Why it matters. This is the single largest exception to article 211, paragraph 5. In an ice-covered area a coastal State may set its own standards for foreign vessels in its exclusive economic zone, without conforming to generally accepted international rules and without the approval of the competent international organisation that article 211, paragraph 6, requires elsewhere.

It was negotiated for the Arctic and it is why Canada and Russia have been able to impose their own shipping rules in northern waters. Its future is contested precisely because the ice is retreating: an article whose condition is ice covering the area for most of the year is an article whose scope shrinks as the Arctic warms.

Article 235: responsibility and liability

Paragraph 1: States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law.

Paragraph 2: States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction.