A Study On The Legal Issues Of The Arctic Shipping Routes Governance

The navigability of the Arctic shipping routes will bring about drastic shortening of the sea mileage from Northeast Asia to North America and Europe. This will have special and significant implications for China as a stakeholder in the Arctic. However, the realization of large-scale navigation is restricted not only by natural conditions, but also by various other factors including legal status of the shipping routes, environmental conditions, geopolitical complexity and specialized navigation technical rules. While the Antarctic is under the systematic regulation of the Antarctic Treaty, governance of the Arctic is confronted with fragmentization of legal regimes. From the legal perspective, the challenges that governance of the Arctic shipping routes faces can be summarized as the follows:First, the legal status of the Northwest Passage and the Northern Sea Route remains unsettled; second, conflicts exist among relevant international law, regional agreements and domestic legislations, calling for coordination; and third, the question of how to further develop the legal rules and establish future legal order for the Arctic shipping routes remains unanswered. In light of these challenges, the author provides a comprehensive overview and analysis of the hard and soft laws related to the Arctic shipping routes, discusses viable solutions through both consultative and judiciary approaches in view of the concerns and interests of various countries in an effort to find an effective course of action to establish a fair and reasonable legal order for the Arctic shipping routes, and makes pertinent proposals regarding China’s effective involvement in the governance of the Arctic shipping routes and its participation in the establishment of its legal order.In view of the latest developments of Arctic and the actual interests and concerns of various countries, this paper approaches viable courses of action for ensuring fair and reasonable uses of the Arctic shipping routes via existing international law framework and Arctic governance mechanisms. In addition to introduction and conclusion, the text of this paper comprises six chapters.Chapter 1 provides an analysis of the legal issues faced by the governance of the Arctic shipping routes under current situation. Building on incremental analysis of concepts like "governance" and "governance of the Arctic", this chapter defines "governance of the Arctic shipping routes" as joint exploration of rules, mechanisms and means to tackle the cross-regional issue of Arctic shipping with the common interests of coastal and user states as value orientation, through equal dialogue, consultation and cooperation among multiple actors. This process is based on coordination rather than control, characterized by ongoing interactions. Legal issues faced by the governance of the Arctic shipping routes are primarily disputes over the legal status of certain sections of the Arctic shipping routes and the conflicts among international law, regional agreements, domestic legislations of coastal states and legal regimes at other levels.Chapter 2 provides an analysis of the legal status of the Arctic shipping routes. In the legal order to be established for the governance of the Arctic shipping routes, the status of the Northwest Passage and the Northern Sea Route is a difficult problem with no solution in sight. The author observes that, from the perspective of navigation, at the center of the disputes over the legal status of the Arctic shipping routes is the legal status of and applicable navigation regimes governing the straits along the Northwest Passage and the Northern Sea Route. Focusing its analysis on these issues, this chapter points out that disputes over the legal status of the Arctic shipping routes are difficult to be solved in the near future due to the ambiguity and lack of specific criteria intrinsic to the jurisprudential issues related to such disputes, which is complicated by the fact that such disputes are to a certain degree contingent on the political relationships among and interests and concerns of the disputants. Based on this argument, the author recognizes that effective coordination of applicable international law and domestic legislations of the coastal states, through multilateral consultations among interested states and on the basis of existing navigational legal norms under the framework of the international law of the sea and the International Maritime Organization(IMO), would provide an important solution to the legal dilemma in the governance of the Arctic shipping routes under current situation.Chapter 3 is focused on issues concerning application of the United Nations Convention on the Law of the Sea in the governance of the Arctic shipping routes, including interpretation and application of exceptions in the Arctic concerning "ice-covered areas" set out in article 234, and gives an analysis of the conflicts between general principles and rules in the convention regarding navigation regimes and domestic legislations of the coastal states bordering the Arctic shipping routes.Chapter 4 is focused on the legal norms under the IMO framework, providing an overview of general legal norms and non-binding guidelines or documents and binding rules and giving an analysis of the role of relevant legal norms in the development and implementation of Arctic regional agreements.Chapter 5 analyzes potential solutions to the legal issues in the governance of the Arctic shipping routes. It provides an analysis of existing workable joint governance models and suggests that legal norms applicable to the Arctic shipping routes be developed and improved within the framework of the international law of the sea and the IMO; a coordinating body be established based on existing Arctic governance mechanisms and through consultation among coastal states and user states of the Arctic shipping routes to facilitate clear definition of the rights and obligations of such states and joint management of Arctic shipping routes affairs by various stakeholders. In light of the latest developments of international judicial and arbitration bodies, this chapter also presents a prospective study regarding the feasibility and possibility of referring the legal issues related to the governance of Arctic shipping routes to the international judicial and arbitration bodies for settlement and possibility of referring them to the International Tribunal for the Law of the Sea for its advisory opinions.Chapter 6 considers China’s role in the development and improvement of legal norms and the establishment of legal order governing the Arctic shipping routes and suggests that China should objectively position its interests and rights on the Arctic Sea Routes, and act as a promoter of mutually benefiting from the Arctic Sea Routes, an advocator of peaceful utilization of them and a balancer among environmental and navigational interests and that the Arctic shipping routes be incorporated into the One Belt One Road strategy. Strategies are also suggested in this chapter regarding China’s effective involvement in the governance of the Arctic shipping routes and the active role it ought to play in the process of establishing the legal order of the routes and developing and improving the legal system.