Keywords

1.1 Introduction

The idea of control over shipping in a defined area of ocean space is an ancient one and predates the emergence of the law of the sea in the seventeenth century. The Greek historian Polybius recounted how in the Second Punic War the Roman and Carthaginian empires agreed on a dividing line in the middle of the Mediterranean Sea which their ships were not permitted to cross (Chircop, 2006). The idea was classically captured by the great debate between mare liberum and mare clausum sowing the seeds of the future international law of the sea. In 1609, Hugo Grotius argued that “[b]y the Law of Nations navigation is free to all persons whatsoever,” and subsequently John Locke, in considering fishing, referred to “the Ocean, that great and still remaining Common of Mankind” and argued for its exemption from appropriation (Grotius, 1609, chap 1; Locke, 1690, chap V s 30). In contrast, in 1635, John Selden argued for mare clausum, subjecting the sea to the exercise of sovereignty and exclusive use, followed subsequently by Cornelius van Bynkershoek, who in 1703 argued on the dominion of the sea (Selden, 1635; van Bynkershoek, 1703). The concepts of an “open” sea for the free use by all and the “closed” sea subject to control were central to the development of the fundamental rights and responsibilities of flag States to have their ships navigate freely and the ability of coastal States to control international shipping in marine areas within their jurisdiction. More than three and half centuries later, the outcome was a delicate balance between coastal State and international navigation rights enshrined in the constitution for the world ocean, the United Nations Convention on the Law of the Sea, 1982 (UNCLOS, 1982).

In setting out the rules on jurisdiction over ships and ocean space, UNCLOS established a framework for the regulation of international shipping, including through area-based management (ABM). ABM consists of a suite of tools for the spatial organization and control of ocean space in achieving defined policy and planning goals, such as sustainability, conservation, safety, and public order at sea. Most of these tools regulate accessibility and mobility at sea by a wide variety of classes of vessels, which in turn are subject to international rules and standards. Within the UNCLOS framework, the International Maritime Organization (IMO), created by a separate earlier convention in 1948, is designated as the competent intergovernmental organization for international shipping, and by implication, empowering it to regulate navigation and shipping, include through ABM.

International shipping is only one among many ocean uses addressed by UNCLOS, and indeed while UNCLOS singled out particular ocean uses—namely, dumping, fishing, marine scientific research, navigation, seabed mining, submarine cables and pipelines—it also underscored that the problems of ocean space are interrelated and must be considered as a whole (UNCLOS, 1982, preamble). The recognition of the unity of the marine environment and interactions of ocean uses and their impacts led to general recognition of the need for an integrated approach to ocean development and management. Integrated coastal and ocean development and management are heavily reliant on ABM (including marine spatial planning) to facilitate the organization and management of ocean uses. Marine space is conceptualized not only as an arena for ocean uses but also as a resource, potentially a scarce one in enclosed geography for which there might be competing resource and non-resource uses. The ABM approach enables coastal and ocean managers to prioritize, allocate, and license defined spaces and thereby promote sustainable development of the blue economy.

States and domestic public authorities weigh many factors in defining and allocating ocean space to preferred or multiple users, because not all ocean uses and users are equal or produce comparable impacts. Under international law, some ocean uses are protected, perhaps even “sacrosanct,” such as the traditional freedoms of navigation, fishing, laying of submarine cables and pipelines, and marine scientific research, because they have been negotiated or treated as such in history. Within national jurisdiction, some ocean uses are preferred and protected more than others for other reasons and therefore are allocated primary or even exclusive access to defined spaces because of their strategic, economic, and social values and impacts.

ABM is also fundamental to the exercise of coastal State jurisdiction in the international law of the sea. Often, coastal States exercise their rights, such as for resource development, and perform their responsibilities, for example, with respect to marine conservation, through ABM regulatory tools. They assert control in this manner and apply both domestic and international standards to ensure maritime safety, environment protection, and security.

1.2 The Problematique of the Book

At first blush, ABM in shipping is most visible with respect to maritime trade routes. The examples that immediately come to mind are routeing measures for maritime safety and special areas for pollution prevention under IMO’s major safety and pollution conventions (SOLAS 1974, chap. V; MARPOL 1973/78, Annexes I–VI). However, the application of ABM in shipping is not limited to commercial vessels. As platforms for ocean use, ships provide services to virtually all the industrial uses of the ocean because they are a common technological denominator. For instance, specially designed ships help build and maintain offshore windfarms. Similarly, offshore service vessels support oil and gas exploration and production at sea—ditto for offshore aquaculture operations. Submarine cables and pipelines are laid and maintained by specialized ships. Fishing relies on fishing vessels. Marine tourism would not be possible without cruise ships and recreational craft. Hence, IMO has not limited itself to the establishment of rules only for commercial shipping and rather has helped develop and promote standards for a wide variety of vessels providing platforms or support for the exploration and development of ocean space and its resources. Hence the use of ships is central to the discourse of ABM in the marine environment.

Shipping technology aside, the regulation of the various uses of ocean space, while using ABM approaches, has relied on tools used for ABM in shipping. For example, the use of offshore structures and installations for a wide range of ocean uses is accompanied by the designation of safety zones for the control of navigation and most especially as areas to be avoided by vessels other than those servicing the structures and installations. Submarine cables and pipelines are marked on charts and usually accompanied by restrictions on the anchoring of ships in their vicinity. Marine protected area (MPA) regulation frequently concerns the movements of ships in protected waters, in addition to setting conservation objectives and restricting a range of ocean uses. Moreover, even outside MPAs and other conservation areas, routeing measures for shipping, such as navigation routes to be used, areas to be avoided, and speed measures, may be employed to protect marine species and other interests. Hence, the tools used for ABM in shipping are equally applicable for other ocean uses.

ABM in shipping is not some arbitrary exercise in carving out ocean spaces, but rather a deliberate process guided by multiple factors, most especially by how risks posed by the industrialization of ocean space are perceived in the eyes of regulators, rightsholders, stakeholders, and the public at large, as well as evidenced by science and other knowledge. Sociologists have characterized contemporary societies as “risk societies,” which are preoccupied with an omnipresent array of risks and uncertainties (Beck, 1992; Beck et al., 1994). The modern era of the late nineteenth and twentieth centuries is characterized by industrialization, urbanization, and scientific advancements. While these have led to unprecedented prosperity and progress, for instance, in relation to the much-increased use and commercial exploitation of ocean spaces, these advancements also brought about profound social, economic, and cultural changes. Through a sociocultural preoccupation with a makeable future, combined with a reflexive impulse of continuously critically reexamining and questioning established norms, systems, and knowledge, individuals and institutions have become increasingly aware of the many risks and uncertainties associated with modernization.

In Beck’s risk society, risks are complex and interconnected, and their causes are often incompletely understood and their impacts difficult to predict. An essential characteristic of the “risk society” is therefore that the possible, malleable, and thus changeable futures are made into objects of present-day decision-making. This requires institutions to develop and implement processes and tools to identify and increase the understanding of various risks, decide on their acceptability, identify and realize options to mitigate the risks, and create mechanisms for monitoring and control. ABM can be readily interpreted as mechanisms to extend the sociocultural norms of the “risk society” to ocean spaces, through risk management principles and actions.

The notion of “risk” in shipping concerns potential hazards posed by ships, or to which ships are exposed, and can be understood broadly and from various disciplinary perspectives. While on the one hand producing massive economic and social benefits through maritime trade, enhancing mobility and other services, ships entail safety, environmental, and security risks. They are noisy machines that generate wastes, pose public health threats as emitters of air contaminants, are vectors of disease, cause marine pollution when they lose cargo or bunker fuel, can be weaponized, and potentially elbow out other marine users in their areas of operations. ABM of marine spaces can help prevent or mitigate those and other risks, for example, by controlling onboard waste management and discharge in designated marine areas or ports.

Ships also face risks which can be managed by ABM information and mitigation measures. Traffic separation schemes enhance the safety of ships by providing separate shipping lanes. Ships cannot sail under all environmental conditions, and hence navigation in certain areas, such as in the polar regions, is subject to dedicated rules. Similarly, ABM rules determine the extent to which ships can be loaded, depending on season and the zones they trade in. Risks can be mitigated when reliable weather and navigational conditions are communicated to ships, and the responsibilities for the delivery of such services are organized according to geographical zones. The designation of places of refuge serves to assist ships in need of assistance to stabilize their condition in areas of relative safety. The designation of areas to be avoided helps prevent ship strikes of marine mammals. Furthermore, ships serve as a living environment for seafarers and passengers. When a ship encounters a calamity at sea, people on board face acute safety risks to their lives. This necessitates maintaining a level of emergency preparedness and the development of infrastructure and assets for search and rescue at sea. ABM measures in shipping are vital for human safety at sea.

1.3 Purpose and Approach of the Book

Against the above backdrop, this book explores the multiple layers of area-based regulatory approaches and management measures and their nuances in shipping. It sets out a taxonomy of ABM and aims to build a comprehensive understanding of the range of spatially defined management tools used with respect to the mobility and activities of ships irrespective of the ocean uses and industries they serve. Attention is paid to analytical techniques and processes that can be used to gain insights into the risks associated with shipping in marine spaces, and broader aspects related to ABM governance of ocean space, including its legal basis, technological developments, and sociocultural considerations. By developing an understanding of key concepts and how ABM is or can be used in regulating and managing ships, we seek to underscore the actual and potential value and role of the regulatory and management tools developed for shipping in the larger context of integrated coastal and ocean management and more specifically in marine spatial planning.

The perspectives employed in this book are international, comparative, and Canadian. Much of ABM in shipping finds its legitimacy and authority in international conventions setting out international rules and standards for shipping and aiming at creating a balance between coastal State rights and responsibilities on the one hand and international navigation rights on the other. Most of the researchers and contributors to this book are based in Canada, and consequently there is an emphasis on the Canadian context and practices. With coastal frontage on three oceans and diverse international and domestic shipping interests, Canada is an ideal laboratory to observe and understand ABM in shipping in action, how international standards are domesticated, and the compromises necessary to ensure efficiency, effectiveness, and equity. In recent years, Canadian ABM practices have been increasingly consultative with ocean users, stakeholders, and, most importantly, Indigenous peoples’ governments and organizations whose constitutionally protected rights are affected. Hence, the book considers current and emerging ABM practices to mitigate the risks and impacts of shipping in Canada and in a comparative manner with other appropriate jurisdictions.

The book is necessarily multidisciplinary and interdisciplinary. The contributors represent various disciplines and fields, most especially anthropology and Indigenous studies, industrial engineering and risk, law and maritime governance, and marine management. Most of the authors have been working collaboratively over the years enabling them to fuse perspectives and methods and thereby produce interdisciplinary outputs. The outputs are a mixture of theoretical approaches and practical applications when specific problems are addressed. They are collectively or individually guided by several fundamental questions aimed at exploring theoretical explanations of the relationship between risk, spatial designations, functions to be performed, mobility, temporal dimensions, and perceived benefits, including the following: how do and should we conceive maritime risks and related costs and benefits? What is the relationship between risk, space, function, and mobility of ships? What values and interests guide or should at least inform ABM in shipping? How do or should we strategize the use of area-based approaches to the governance of shipping? Should various ABM initiatives be integrated or coordinated or simply be pursued opportunistically? What roles do or should public authorities play? What roles do other key actors, such as industry associations, Indigenous organizations, and nongovernmental organizations play? What are effective consultation processes and what facilitates effectiveness? What decision support systems are needed for ABM? How should we conceptualize “good” or “best” ABM practices in the governance of shipping, and what are illustrative examples?

1.4 Research Context

This work is an integral part of the Ocean Frontier Institute-funded project Module N: Navigation Safety and Environment Protection, funded by the Canada First Research Excellence Fund and co-led by researchers from the Schulich School of Law, Department of Industrial Engineering and Marine Affairs Program, at Dalhousie University. Its content draws on lessons learned from research conducted since inception of the project and more directly from lessons derived from the project’s second major workshop, Shipping Risk Mitigation Research and Practice in Canada: Considering Area-Based Management Approaches, convened jointly with the Clear Seas Centre for Responsible Marine Shipping in 2022.Footnote 1

1.5 Book Structure

The book is organized in four parts with chapters grouped under each and designed in a manner that enables the flow of themes and discussions, as follows: Part I: Principles and Frameworks; Part II: Vessel Traffic Management; Part III: Marine Spatial and Environmental Planning; and Part IV: Managing Human Safety in Remote Areas. The structure of the book is meant to tackle different perspectives, theoretical approaches, and examples of the broad variety of ABM measures that target shipping directly or indirectly. The content flow unfolds from more generic discussions of policy, regulatory, and legal frameworks to studies of vessel traffic management, examples of ABM in marine and environmental planning, and the management of human safety in remote areas, with an emphasis on the Canadian Arctic.

The introduction (Chap. 1), which sets out the purpose, rationale, context, and structure of the book, is followed by five chapters in Part I, Principles and Frameworks. This part sets the stage for an in-depth discussion of ABM by providing the conceptual framework for understanding the use of ABM in the governance of shipping at various levels, including global, Canadian, local, and Indigenous peoples. In Chap. 2, Aldo Chircop, Claudio Aporta, Floris Goerlandt, and Ronald Pelot theorize on the nature of the relationship between risk, spatial definitions, and the functional approach at the heart of ABM in the governance of shipping, most especially in Canada. They craft an approach to understanding the taxonomy of ABM tools that are shipping-specific and others that affect shipping without being purposely geared toward it. The chapter links the use of ABM tools to an emergent “risk society” and explores tools in the interrelated realms of assessment, management, and governance. Finally, the chapter discusses the role of social license in the context of Canada’s commitments and obligations toward Indigenous peoples.

In Chap. 3, Paula Doucette and Samuel Mansfield explore cumulative effects assessments (CEA) in marine shipping in the context of ABM. They explore how CEA is used to evaluate changes in the environment which are caused by interactions among human activities and natural processes through a cumulative lens. The authors state that Canada’s historic approach of assessing projects individually does not always provide a complete understanding of cumulative effects at the regional level. In alignment with an ABM approach, they propose regional CEAs to account for analysis and decisions based on the effects in a region. The authors analyze the Cumulative Effects of Marine Shipping (CEMS) initiative (led by Transport Canada in the context of the Oceans Protection Plan), as an example of a regional CEA which was codeveloped through collaboration with different stakeholders and rightsholders. They provide a detailed analysis of the CEMS assessment in the Cambridge Bay area of Nunavut, in Arctic Canada.

The next three chapters discuss area-based solutions at different scales. In Chap. 4, Nele Matz-Lück and Shams Al-Hajjaji provide background and analysis to understand the international legal framework of ABM tools. The chapter provides a comprehensive bird’s-eye view of tools, focusing on global conventions, most especially the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction 2023, and regionally limited instruments such as regional fisheries agreements. The authors reflect upon whether these ABM tools are set up in a coherent manner or whether they place burdens upon the shipping sector that are not necessary in pursuing sustainability in ocean governance.

In turn, in Chap. 5, Aldo Chircop and Scott Coffen-Smout consider ABM tools for shipping in Canada. The authors provide a comprehensive survey of both the regulatory tools available for the direct spatial management of shipping, as well as the indirect ways of spatial management of shipping through tools (e.g., the designation of marine protected areas), whose principal purpose is marine conservation, but which may have incidental effects on shipping. Key legislation within Canada is described and some of its strengths and weaknesses are analyzed. The authors reflect on various aspects of ABM tools, including their purposes and functions, their role in implementing international regulatory commitments, and their function in the allocation of ocean space. They question whether ABM tools should always be integrated in a broader ocean management approach or if their application should also be context-dependent and used for specific problem-solving in space and time. Possible future directions are also explored.

In Chap. 6, Claudio Aporta, Leah Beveridge, and Weishan Wang reflect on the use of decision support systems in the context of ABM in shipping and how these can be effectively conceptualized and aligned with the traditional knowledge of Indigenous peoples. A key question is how Indigenous knowledge can be included in the design and implementation of area-based planning initiatives that relate to shipping, both through decision support tools and decision support systems. The authors theorize on the meaning of engagement in the Canadian context of reconciliation and reflect upon the characteristics of decision support tools and systems for ABM, which can contribute to (or limit) decolonizing processes of governance. The focus of the chapter is on the Canadian Arctic, in which some concrete initiatives for and applications of decision support tools and systems are interpreted and discussed. The authors propose that political, ontological, and methodological dimensions of the governance problem must be addressed for true engagement to happen, charting a path for future research and development in this area.

Part II on Vessel Traffic Management comprises two chapters offering different perspectives, historical backgrounds, theoretical insights, and current trends on issues surrounding vessel traffic management and risk analysis. In Chap. 7, Floris Goerlandt provides an overview of risk analysis techniques currently proposed at an international level and discusses theoretical approaches for conceptualizing, assessing, and dealing with risk in the context of marine shipping. The author focuses on risk analysis techniques for ship accident prevention in marine areas, which are used to support decisions on the need for area-based measures, and on options to control navigations risks such as routing measures or vessel traffic management. The chapter gives an overview of the current internationally recommended process for waterway risk management and on the risk assessment tools included in the international guidelines. He then provides a brief overview of some influential accidental causation theories, which (often implicitly) underlie the design of these risk assessment tools. Through a selection of risk assessment tools from the internationally recommended toolbox and from the academic literature, an analysis is presented of how accident theories underlie different tools. Focus is also directed toward how, and to what extent, physical, environmental, infrastructural, and organizational aspects of marine space are considered in these selected tools and in the accident theories on which these build. A discussion is provided, focusing on questions about the reliability and validity of the tools and how these tools are recommended to be used in decision-making processes. The chapter outlines several directions for future research and development in the field.

In Chap. 8, Anish Hebbar, Jens-Uwe Schröder-Hinrichs, and Serdar Yildiz discuss trends in autonomy and digitalization in the European context. The authors provide a historical background to understand the trends, tracing links between shipping management techniques in 300 BC in Alexandria, the introduction of radar technology combined with radio communication after World War II, and the establishment of the vessel traffic services (VTS) commonly used today. The authors provide a succinct overview of the regulatory basis for vessel traffic management at the international level and insights in the applicable standards for VTS to support safety of navigation. The authors subsequently examine regional approaches to and experiences with vessel traffic management in European waters. Insights are provided in the legislative basis and technical functionality of the Community Vessel Traffic Monitoring and Information (VTMIS) system, the European Union Maritime Information and Exchange system (SafeSeaNet), and the European Maritime Single Window environment (EMSWe). Emphasis is placed on reporting requirements and data sources and to autonomy and digitalization. Contemporary developments of vessel traffic management focus on the interoperability of mandatory reporting systems, data exchange capabilities, and sea traffic management services. The chapter identifies future trends and challenges of vessel traffic management, especially in relation to developments toward autonomous vessels.

Part III, Marine Spatial and Environmental Planning, comprises two chapters addressing ABM issues from the perspectives of collaborative governance frameworks, risk governance, and the role of ports and places of refuge. In Chap. 9, Weishan Wang and Claudio Aporta provide a comparative study of the use of ABM collaborative approaches in shipping governance. In particular, the authors propose that an existing and successful management program, the Voluntary Protection Zone (VPZ) for shipping along the west coast of Haida Gwaii, could serve as a model for the development of a governance framework for the Northern Low-Impact Shipping Corridors initiative in Arctic Canada. The authors analyze the VPZ project as an example of an ABM tool that enhances safe maritime navigation while also respecting Indigenous rights and being informed and influenced by Indigenous perspectives and knowledge. The chapter identifies several issues and challenges that will be encountered during the implementation and governance of Transport Canada’s Corridors initiative and describes how similar issues and challenges were addressed with the VPZ through a unique collaboration between the Council of the Haida Nation, the Government of Canada, and the maritime shipping industry.

In Chap. 10, Jessica Cuccinelli, Floris Goerlandt, and Ronald Pelot explore risk governance deficits of marine oil spill preparedness and response in Canada. The authors highlight the need for the development of effective societal risk governance and risk management, particularly in the context of projected increasing shipping traffic in the Canadian Arctic. The chapter describes the current regulatory context and practices for oil spill preparedness and response in Canada, addressing the responsible authorities, approaches for stakeholder and rightsholder engagement, and decision-making processes prior to pollution incidents and during an ongoing response. Through interviews with federal civil servants with expertise in oil spill preparedness and response, the authors systematically identify and explore risk governance deficits, building on the structure of the International Risk Governance Council’s Risk Governance Framework. The study’s results indicate that the main deficits pertain to factual knowledge about risks, evaluating risk acceptability, implementing and enforcing risk management decisions, organizational capacity for risk management, and dealing with dispersed responsibilities. Relating the findings to ongoing initiatives to strengthen the governance of spill preparedness and response, several policy and management implications are discussed. Finally, several future research and development directions are highlighted, for example, how to better account for Indigenous knowledge in decision-making processes, opportunities for technical developments for enhanced situational awareness, and further research to better understand risk governance deficits from different perspectives.

In Chap. 11, Aldo Chircop explains Canada’s system for ports as special management areas with responsibilities over marine and terrestrial spaces to enhance commercial competitiveness, safety, security, and environmental sustainability. Federal law distinguishes between different types of ports, namely, ports managed by Canada Port Authorities, public ports, and small craft harbors, giving attention to relevant responsibilities, actors, and ABM-related activities. The chapter discusses the continuity of terrestrial and marine areas within the jurisdiction of ports, the scope of governance powers, and ports’ environmental mission, including the pursuit of sustainability, decarbonization, prevention of marine and air pollution, and protection of marine biological diversity.

Part IV, Managing Human Safety in Remote Areas, consists of two substantive chapters and the conclusion. In Chap. 12, Mark Stoddard, Ronald Pelot, Floris Goerlandt, and Laurent Etienne focus on ABM in the context of Canadian Arctic search and rescue (SAR). A novel approach to delineate surface ship Incident Response Service Areas (IRSA) and Incident Response Isochrones (IRI) is proposed to support strategic SAR planning. This approach is based on an analysis of sea ice, which is related to attainable vessel speeds in different Polar Operational Limits Assessment Risk Indexing System (POLARIS) risk levels, further making use of a network path optimization approach in a geospatial graph network. The authors discuss the use of IRSA and IRI to measure the year-round accessibility and remoteness of maritime locations in the Canadian Arctic, improving the accuracy of estimated maritime SAR surface ship response times to a given incident location. A series of geospatial data products are shown, illustrating the concepts and providing insights in the geospatial and temporal access of the Canadian Arctic for different Polar Class vessels. Several avenues for future work are also highlighted.

In Chap. 13, Desai Shan and Om Prakash Yadav discuss a regional perspective for public and occupational health. The authors discuss the challenges to safe marine operations in the Canadian Arctic (e.g., distances between harbors, a sparse population, extreme weather conditions), which were heightened through the COVID-19 pandemic. They analyze public health measures applicable to vessels and crew operating in the Canadian Arctic adopted by Transport Canada and the Public Health Agency of Canada between 2020 and 2021. Through qualitative semi-structured interviews of key actors in the Arctic shipping sector, the authors evaluate the impact of these public health measures on Arctic shipping and seafarers. The authors’ findings suggest that the public health measures implemented to limit the spread of the infection raised health and safety concerns among seafarers.

Chapter 14 concludes the book. The editors revisit the problematique and questions set out in the introductory chapter to pull together the various theoretical explanations and findings in each chapter and reflect on the notions of “good” and “best” practices in ABM in the governance of shipping generally and in Canada specifically.