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52 Ocean Dev. & Int'l L. 1 (2021)

handle is hein.journals/ocdev52 and id is 1 raw text is: OCEAN DEVELOPMENT & INTERNATIONAL LAW 2021, VOL. 52, NO. 1, 1-19 ( ayo &Fani https://doi.org/10.1080/00908320.2020.1835026 Taylor & Francis Group The Genesis of Article 234 of the UNCLOS Jan Jakub Solski Norwegian Center for the Law of the Sea, UiT-The Arctic University of Norway, Tromso, Norway ABSTRACT ARTICLE HISTORY Article 234 is exceptional regarding its wording and placement in the Received 21 May 2020 United Nations Convention on the Law of the Sea (UNCLOS), as well as Accepted 26 June 2020 in its historical background. The Arctic provision has given rise to diver- gent interpretations regarding the conditions for invoking it, the limita- KEYWORDS tions on the authority under Article 234, and its spatial scope of Actic rticle 2; Northerr application. It has served as a justification for specific legislation adopted Passage (NWP); UNCLOS by Canada and Russia that has been opposed by the United States. The article, describes as a textbook example of finding a compromise in international treaty negotiations, was negotiated directly and privately, among these three states during the Third United Nations Conference on the Law of the Sea (UNCLOS Ill). This article describes the historical background to Article 234 and sheds new light on the negotiating pro- cess that led to the adoption of the provision. Introduction Article 234 of the United Nations Convention on the Law of the Sea (UNCLOS)1 was negotiated directly and privately, among Canada, the United States, and the USSR, dur- ing the Third United Nations Conference on the Law of the Sea (UNCLOS III). It has been described as both a textbook example of finding a compromise in international treaty negotiations2 and a witch's brew, a caldron of legal uncertainty which could be stirred in favor of either the coastal or shipping state.3 CONTACT Dr. Jan Jakub Solski Jan.solski@uit.no Norwegian Center for the Law of the Sea, UiT-The Arctic University of Norway, Troms0, Norway. ' United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994), 1833 UNTS 3 UNCLOS, Art 234: 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. 2 K. Bartenstein, The Arctic Exception in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage? (2011) 42 Ocean Development and International Law 22, 27. 3 C. Lamson and D. VanderZwaag, Arctic Waters: Needs and Options for Canadian-American Cooperation (1987) 18 Ocean Development and International Law 49, 81. This article has been republished with minor changes. These changes do not impact the academic content of the article. C 2021 The Author(s). Published with license by Taylor & Francis Group, LLC This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives License (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is properly cited, and is not altered, transformed, or built upon in any way.

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