CHINA LEGAL SCIENCE 2020年第4期 ｜北极探险邮轮海事安全规则化的目标导向及制度设计（上）
REGULARIZED TARGET ORIENTATION AND INSTITUTIONAL DESIGN OF MARITIME SAFETY OF ARCTIC ADVENTURE CRUISE
With the exploration of the Arctic Channels, the Arctic adventure cruise industry has been developing at a rapid pace. The maritime safety issue of the Arctic adventure cruise ships is a core topic for the Arctic adventure cruise industry. To some degree, it could be regarded as the Achilles’ heel of Arctic Channel development. The maritime safety of Arctic adventure cruises is different from the traditional navigational security and environmental safety. It must not only fit the characteristics of the navigational risks in the frozen area of polar regions for the adventure cruise ships, but also fit the fragile characteristics of the environmental risks in the Arctic region. The Arctic maritime security issue is different from that of the Antarctic. For the Antarctic, there is no sovereign state there, which means there is no permanent resident. The main maritime security elements of the Antarctic are covered in the Antarctic Treaty of 1959. By contrast, at least 4 million people are living in the Arctic, and they are governed by eight sovereign states which own land within the Arctic Circle. The sovereign jurisdiction of the eight Arctic states has determined the intersection and integration characteristics of the national sovereignty dimension and the regional co-governance dimension in the concept of maritime security of Arctic adventure cruise ships. The maritime safety risks of the Arctic adventure cruise ships are mainly located outboard (onshore), which is described as the integration of sea and land, and has raised new issues for the Arctic governance. The macro guidance of the International Maritime Organization (IMO) on the ‘soft law’ functional system of international conventions cannot meet the current evolution. The domestic rules created by the eight Arctic states have the trend to be regionally nationalized, which could result in a gap among the different rules and an imbalance in the management mechanism of Arctic maritime security. Thus there is a stronger need for the generalization of Arctic maritime security rules for the adventure cruise ships. Many factors converge on the shipping lanes of the Arctic adventure cruises. The fragmentation status of the nationalized legal conflict of the maritime safety attribution paradigm of the adventure cruise and the rational gap of the nationalization of the attribution system urgently needs to be changed. This is exactly the meaning of the Arctic governance system. And the design of the corresponding system is supposed to be the ultimate target value of the Arctic governance.I. REGIONAL REGULARIZATION OF MARITIME SECURITY FOR ARCTIC ADVENTURE CRUISES: AN URGENTLY NEEDED CONSTRUCTIONFrom a macro perspective, the goal orientation of the maritime security area of the Arctic adventure cruise is the essential meaning of Arctic governance. From a micro perspective, it is the actual need of the conceptual connotation and extension of the maritime security and the need to adjust the imbalance of the existing maritime security conventions in reality. In terms of exploring the maritime safety of Arctic adventure cruise ships, its safety risks originate from the ship. Although it is a concept derived from traditional maritime safety, the essence has evolved into a value consideration of a new logical system. The adventure cruise itself puts the ship and passengers in a high-risk environment, and the requirements of navigation safety are far higher than that of traditional maritime safety, which is, the transmutation into polar navigational safety (the ship itself plus the safety of passengers’ lives), and the different requirements of navigation technology and ship standards. The main activity of the adventure cruise is the appearance of the ship. In addition, the eight Arctic states have different focuses on the environmental interests of the polar ecological environment, which makes the environmental security in need for a regional regularized construction. Therefore, the Arctic adventure cruise is faced with the double lag of the concept and adjustment system, and it is in urgent need of regularization and improvement.A. Construction Requirements for Theoretical Evolution of the Maritime Safety Concept of Arctic Adventure Cruise ShipsFirstly, there is a theoretical need for the extension of the maritime safety connotation of Arctic adventure cruise ships. Academically speaking, the concept of maritime security refers to protecting a country’s land, maritime territory, infrastructure, economy, environment and society from certain harmful acts that occur at sea. The UN Secretary-General specifically categorized maritime security in the Report on the Sea and the Law of the Sea of 2008: maritime acts of terrorism against ships, life, cargo on board, criminal activities of smuggling and trafficking at sea and activities which pollute the marine environment, etc. According to the Report, traditional maritime safety connotation highlights two aspects: the safety of ships, people on board and loaded cargo (value of cargo) and reduction or even elimination of marine ecological, environmental pollution caused by ships and crews. Due to the development of shipbuilding technology and the improvement of the shipping management system, the extreme weather early-warning mechanism allows marine emergencies to be controlled. The value of ship-borne cargo theory has been lowered, and navigation safety has had a new evolution. The Arctic adventure cruise is a derivative product starting from the passenger’s adventure. It does not include the cargo value theory of traditional maritime safety, and its connotation has evolved to thoughts about the return of human beings to the ecological environment, which means reducing the environmental damage caused by the ship and its personnel on the ocean, as well as the difficulty to accurately predict the high risk of adventurous activities in the polar natural environment. The demand to increase the natural value (environmental safety) and the humanistic value (safety of navigation) of adventure cruise ships has been further expanded, and the essence of it has evolved into a value consideration of a new logical system.Secondly, there is a dilemma that the Arctic adventure cruise is faced with the extension of the maritime security concept which goes against the Antarctic paradigm. Although the Antarctic and Arctic regions are based on similarities in geographic location and climate environment, the maritime safety rules of Arctic adventure cruises have the possibility to be transplanted from the Antarctic Treaty. Nevertheless, in fact, there is an insurmountable gap between the North Pole and the South Pole. Antarctica is a tundra land surrounded by the ocean, whereas the North Pole is a region co-governed by the sovereignty of the eight Arctic states. The reality shows the nationalization of the Arctic governance on maritime safety regulations. The regional co-governance sovereignty of the eight Arctic states has not yet formed a unified specialized management organization like the Antarctic Cruise Management Association, and the Arctic Council does not have such an Arctic Treaty like the Antarctic Treaty. It is a reality that the sovereignty of each Arctic state differs obviously in the situation of Arctic co-governance. The predicament of nationalization of the maritime safety information compilation of Arctic adventure cruise ships and the lawful conflict of the national logic inherent in the maritime safety rules of Arctic adventure cruise ships put the Arctic adventure cruises in an urgent need for the construction of regional rules.B. Practical Requirements of Self-Imbalance of the Maritime Safety Regulation System for Arctic Adventure Cruise ShipsFirstly, there exists the dilemma of blank areas in the three traditional conventions on maritime safety of Arctic adventure cruise ships. The origins of the International Convention on Maritime Safety of Arctic Adventure Cruises are scattered in the International Convention for the Safety of Life at Sea of 1914 (hereinafter referred to as the SOLAS Convention), and the theory of laying emphasis on the safety of human life during navigation is under the International Convention on Standards for the Training, Certification and Watchkeeping of Seafarers of 1978 (hereinafter referred to as the STCW Convention). It also originates from the system of maritime safety rules which focus on environmental safety under the International Convention for the Prevention of Pollution from Ships of 1973 (hereinafter referred to as the MARPOL Convention). However, as far as the traditional convention system is concerned, its adjustment subject does not reflect the particularity of sea and land integration in maritime safety of adventure cruise ships, and its applicable areas have not reflected the characteristics of the polar environment. With the soft law nature of traditional maritime conventions and the manifestation of the sovereignty of the eight Arctic states, the maritime security system of Arctic adventure cruise ships is facing the dilemma that there are no fitting rules to rely on.Secondly, the International Code of Safety for Ships Operating in Polar Waters (hereinafter referred to as the Polar Code), were implemented, through the implicit amendment procedure of the applicable rules in the related SOLAS Convention and MARPOL Convention. They have been witnessing many difficulties in technical practice. The Polar Code has the dual characteristics of technical rules and mandatory documents. They adopt a system of risk assessment and a ‘convention in convention’ system based on the goal-oriented principle, with a view to improving the effectiveness of the conventions. However, the different logical starting points of each embedded rule have led to contradictions in practical application. The Polar Code has provided a large number of technical standards, procedures and operating specifications for polar maritime safety activities, and has ensured the maritime safety of Arctic adventure cruise ships by regulating the technical conditions of navigation. The technical characteristics of the Polar Code and the mandatory combination of the amendments to the SOLAS and MARPOL Conventions form the mandatory basics of the Polar Code. However, the amendment of the STCW Convention, which lags behind the amendments to the two main mandatory conventions of the SOLAS Convention and the MARPOL Convention, would further deepen the uncertainty of the permissible rule system of the Polar Code. The limited coercive force of the Polar Code and the different levels of voluntary compliance by the Arctic states have resulted in a fragmentation reality of the maritime safety conventions of the Arctic adventure cruise, and it has made it difficult for the maritime safety convention system of the Arctic adventure cruise to rely on existing regulations.II. TARGETED PROBLEM ORIENTATED FROM THE REGULARIZATION OF ARCTIC ADVENTURE CRUISE MARITIME SAFETYArctic adventure cruise maritime safety rules have a regularization trend in both aspects of theory and practice. Nevertheless, in the specific construction process, it is likely to see conflicts between the logic of the Arctic adventure cruise maritime safety and environmental safety logic system, such as the fragmented reality of the maritime security rules of conduct in the eight Arctic states, specific maritime security responsibility models, reasonable gaps in responsibilities, etc. In short, the sovereignty of the eight Arctic states legally creates specific obstacles to regional regularization of maritime security.A. Specific Value Conflict of the Maritime Security of Arctic Adventure Cruises with Its Logical SystemFirstly, there exists the Law of the Jungle between maritime security and environmental security in the Arctic adventure cruise’s maritime security governance system. Maritime security is specifically oriented to a regional game that evolves into a monopoly of power and a proliferation of power. The navigation rights of the Arctic international adventure cruises, which belong to international sovereignty matters, complying with the flag state rules of the United Nations Convention on the Law of the Sea (hereinafter referred to as the UNCLOS), rely more on the domestic regulations of Arctic countries. The trade-offs between national political propositions in the Arctic governance system have presented a regional game of inherent conflict between navigation safety and environmental safety regulations. In order to realize the sovereignty rights of their own countries, countries establish their own nationally imprinted adventure cruise maritime safety navigation rules. At the same time, the fragile ecological environment protection in the Arctic region requires the proliferation of social power, such as the use of maritime environmental protection technology and the collection of environmental information in maritime security, or the output of Arctic cooperation social values on environmental safety. However, the involvement of the legalization of state sovereignty has led to a continuous cross-play of the monopoly of state power and the spread of social power, which has undermined the construction of equitable values between the specific aspects of maritime security.Secondly, the specific goals of the Arctic adventure cruise’s navigational safety and environmental safety have shown the trend to diverge. The adventure cruise itself puts ships and passengers in a high-risk environment, and the elements of navigation safety are far higher than traditional maritime safety. This has evolved into the different requirements of navigation technology and ship standards in polar navigation safety (the ship itself plus the safety of passengers’ lives). Whether in the Northwest Passage or Northeast Passage, Arctic adventure cruise ships must inevitably abide by national sovereignty regulations. However, Arctic countries regulate adventure cruise ships with their own focuses on navigation safety, which has led to the goal-oriented trend of maritime safety of Arctic adventure cruise ships, which is decentralized. The fragile environment of the Arctic has resulted in the environmental safety problems of adventure cruises which are both regional and global. The environmental pollution of adventure cruises has no borders, and it is a shared issue of the planet, making the regional cooperation system a good way to prevent environmental security. The traditional integration assessment of maritime safety, navigation safety and environmental safety of adventure cruises has led to the departure of the goal of cooperation in environmental issues and the sovereignty goal of navigation safety in the context of Arctic regionalization.B. Legal Conflict in Nationalization of Arctic Adventure Cruise Navigation Attribution ParadigmFirst of all, the maritime safety supervision model of the Arctic adventure cruises manages many countries, which leads to the regularization of the prisoner’s dilemma in maritime safety areas of the Arctic. The Russian Northern Sea Navigation Administration (hereinafter referred to as the Beihang Administration) conducts maritime safety supervision in the form of navigational licenses for adventure cruise ships, and a comprehensive search and rescue operation system Search and Rescue (SAR) operates under the supervision of the Russian Ministry of Transport to handle maritime safety in the accident. The SAR system cooperated with the militarized force rescue centre in the Russian northwest waterway area to achieve a joint maritime safety examination and approval and militarized emergency rescue linkage supervision model. Canada implements an integrated information management model for maritime safety inspection and supervision. The Canadian Coast Guard requires the adventure cruise line to have an Arctic Pollution Prevention Certificate and report route itineraries before the voyage according to the Northern Canada Vessel Traffic Services Zone Regulations (NORDREG). The system notifies the cruise liners of real-time ice formation information and the Canadian Coast Guard and the Department of Transportation’s maritime safety incidents.The US Coast Guard is responsible for adventure cruise access approvals and planned safety inspections at various stages under the Cruise Safety Act of 2010. It also inspects US Arctic waters adventure cruises in accordance with the Oil Pollution Act of the US and the Clean Water Act. The American characterized Maritime Safety Association is responsible for developing a list of maritime safety recommendations. The detailed activity plans are made by the US Coast Guard who usually carries out the planned checks in different stages.The maritime security of Danish adventure cruise ships is mainly focused on the administrative approval system of special regionalization. According to the Act on Nature Preservation in Greenland and its supporting administrative regulation Administrative Order to Enter or Travel in Specific Areas of Greenland, Denmark regulates a pass card system for the Arctic adventure cruises, which requires Danish adventure cruise ships to hold a pass card when navigating in specific areas for the check.Finland adopts the regulation and control measures for market entry of the adventure cruise ship to realize the requirements of the ship’s type, specifications, and technical safety for construction. The sovereign imprint of Finnish adventure cruise navigation safety is shown by the taxation under administrative regulations. As for the regulations of the navigation safety of adventure cruises, the Finnish Customs regulate the technical requirements of adventure cruises in the form of attachments and through the definition of ice class, and sets standards for collecting channel fees and regulatory fees.Norwegian view on the maritime safety of adventure cruise ships in the polar regions is that the human factor is the biggest factor that causes maritime safety damage. The Ship Safety and Security Act requires the master to ensure the independence and liability of the mental health of the crew and passengers, as well as the guarantee of material life. The captain ensures that the work of the adventure cruise is carried out properly and the rest time of the crew specified in the regulations, participates in ensuring the necessary safety facilities and equipment of the ship, and backing up drugs to ensure the life and health of passengers and crew.Iceland’s adventure cruise maritime safety implements a seasonal control approval model, while planning the adventure cruise sailing area in the soft method of the environmental guidelines. The responsibility of the relevant maritime authorities, law enforcement authorities and onshore responders is to take into account specific circumstances and promptly notify suspected crimes, security incidents or security threats in accordance with legal authorization. The responsibility of ship safety officers in accordance with the membership procedures laid out by rules is to do their best to provide safety and benefits for passengers, crew and the ship.In the game of the political rights of Arctic states and the conflict between the state and non-state organizations in the regional stance, the attribution paradigm of the Arctic adventure cruises is oriented towards showing different patterns, and it results in differentiated national sovereignty behaviours in terms of control models and jurisdiction delineation rules, which in turn leads to seemingly legitimate risks. The reality is that national laws of the Arctic maritime safety supervision model are legally defined, which has led to each country to draw a circle on the ground to serve as a prison, contrary to the vision of international cooperation in Arctic adventure cruise maritime security, and not conducive to the unified and standardized formation of regional rules for maritime security.Secondly, the status quo of the national standardization of the Arctic adventure cruise’s national standard proliferation has led to the law conflict predicament of different standards applicable to the regional regularization of maritime safety of adventure cruise ships, creating legal obstacles to regional regularization. Russian Northern Aviation Administration has stipulated a charging system for icebreaking and piloting services for adventure cruise ships, and has provided Russian domestic legal remedies for the objection to charges. According to the Arctic Shipping Pollution Prevention Regulations, the Canadian Department of Transportation has formed the specifications, schedule and route of the Arctic international adventure cruises, and the ice navigation safety rules system. It has also established the rules system of financial guarantees for adventure cruises as determined by the Department of Transportation. The proliferation of maritime safety regulations in American cruise ships is mainly reflected in the technical safety standards of ship operations proposed by the US in the Cruise Vessel Security and Safety Act of 2010, and the provisions of domestic law on environmental safety break through the American priority rule standard of international conventions. Norway mainly demonstrates the characteristics of its maritime safety rules through the Norwegian Standards of the captain and crew. The Finnish Customs regulate the requirements of technical safety of adventure cruises through the form of a legal annex and realize the regularization by defining the ‘Finnish standard’ of ‘ice class’. It implements the maritime safety regulation of adventure cruises through the dynamic management of channel fees and administrative charges, and provides the relief in domestic legal proceedings path.The maritime safety of Swedish adventure cruise ships is mainly managed by the Swedish Polar Research Secretariat, and the application of polar scientific research safety rules is similar to the management of adventure cruise navigation safety. Its environmental safety reflects the characteristics of the code. Iceland, as the International Cruise Association (CLIA) member, provides emergency management technical standards for the safety of adventure cruise ships in accordance with the rules of the Association, and advocates the freedom of navigation in the exclusive economic zone and the high seas of the UNCLOS.In summary, there are legal differences in the national paradigm of the Arctic adventure cruise navigation safety rules paradigm, leading to maritime safety rule conflict with nationalized points and decentralized patterns, making it difficult to form an ideal internal logic consistent with regional regularization model.C. The Reasonable Gap in the Nationalization of the Arctic Adventure Cruise Navigation Liability Attribution SystemThe liability attribution systems of Arctic adventure cruise are different for different sovereign countries. The risk prevention method and the state of the country’s shipping sovereignty are also displayed differently under the navigation safety liability system. The reasonable gap of the Arctic adventure cruise’s nationalization reflects the different weight of the right to speak in the Arctic region. All of these have resulted in the situation that the goal orientation of the area rules of navigation safety would drift away.First of all, the nationalization of liabilities modes for Arctic adventure cruise ships leads to the dilemma of inconsistent remedy routes for adventure cruise navigation safety rights. Russian compulsory liability insurance system for adventure cruises guarantees the security of the property of adventure cruise ships and the personal safety of adventure cruise passengers. This compulsory liability insurance system also stipulates the non-fault vicarious guaranteed liability system of flag states to prevent the maritime navigation risks of Russian Arctic adventure cruise ships.The subject of Canadian adventure cruises is the administrative compulsory liability which requires registration and approval in advance, and it realizes the information exchange between maritime safety management administration and adventure cruise ships through the NORDREG guiding system to prevent risks by the compulsory administrative liability beforehand. Based on the Canadian adventure cruise ship’s ballast water exchange system, which is a ‘port state control’ managing measure, it constructs a coexisting responsibility model combing administrative responsibility for government-ordered compulsory decontamination costs and maritime compensation liability.The US mainly uses the dual methods of administrative law enforcement and criminal liability regulation to protect passenger rights and interests, and adopts the ‘American-style responsibility’ attribution system after navigation safety accidents with ‘long-arm jurisdiction’ to ensure the prevention of navigation safety risks, so as to realize the maritime navigation risks prevention.Norway implements a double punishment system of natural persons and legal persons, as well as the liability principle of common but differentiated for maritime safety accidents of captains and crews. Cruise companies would bear the responsibility of administrative fines for maritime safety. Captains and crews are responsible for violating navigational duties, and they have to bear the administrative and criminal responsibilities. Danish adventure cruise safety precautions are mainly reflected in the ‘block management’ which sets ‘forbidden zone’ and ‘no more than 24 hours’ stay zone, to achieve navigation safety risk prevention. It has formed a common but differentiated regionalized administrative responsibility system, and has the characteristic of environmental responsibility of the marine environmental resources and marine ecological tourism resources division system. Finnish risk prevention of adventure cruise mainly lies in the post guarantee liability system. Adventure cruise operation requires an EU member state or an organization-approved representative to be a guarantor and have joint compensation liability with the adventure cruise carrier. The mode of procedural remedy for the liability of the Finnish adventure cruise carrier forms a procedural entry into the sovereignty of the Arctic. Icelandic polar adventure cruises primarily protect against navigational liability risks through the access use of the International Cruise Association’s rules and international practices. At the same time, the Icelandic Environmental Agency and the Guidelines of the Association of Arctic Expedition Cruise Operators have established administrative and civil liability mechanisms for other fragile ecosystem areas such as Icelandic nature reserves. Swedish adventure cruise carriers take precautions to ensure the safety of cruise navigation while ensuring maritime safety requirements. Specifically, crews receive rigorous training in safety and first aid to prevent and respond to potential emergencies. And they accept strict international supervision on the design and construction by the IMO, flag state and port state authorities, and classification societies, which provide strict safety standards and internal supervision throughout the ship’s operation to improve safety and cruise work through review operation procedures to improve safety procedures and technology.Second, the combination of the responsibility of Arctic adventure cruise ship countries with the entry point of their national sovereignty has led to the decentralization and difficulty of focusing on the protection of the safety interests of adventure cruise ships, and the inherent disorder of the regional regularized responsibility system as well. Russia has evolved its domestic adventure cruise activities into its national profit-making projects, and commercial icebreaking forms have realized the economic facts of Russia’s Arctic sovereignty. The responsibility mechanism of Russian adventure cruise ships has made it possible to obtain a substantial diplomatic negotiation approach on the right to speak in the Arctic governance system, so as to make the risk of liability of the adventure cruise ship fall into the category of state responsibility. Canada has realized the real existence of its sovereignty through the beforehand administrative approval and systematic operation of administrative liability. Canadian Ministry of Transport, the Ministry of Oceans and the Coast Guard have provided information system services to assist cruise navigation. Through the electronic service of the NORDREG system, its jurisdiction reaches to the Arctic Exclusive Economic Zone and the high seas. The auxiliary function of the ice area navigation technology has made the national sovereignty imprint, which is not conducive to the promotion and unification of technical standards. The focus of American adventure cruise line safety responsibility is lying in the comprehensive promotion of the American interests, which aims primarily to protect the interests of the US, focusing on protecting the interests of American passengers.Finland mainly implements Finland domestic procedure law of the Arctic adventure cruise region’s regularized system through the domestic law relief approach of receiving administrative proceedings in the waterway, and obtains the EU approach of Arctic region’s right of speech system through the guarantee liability of the adventure cruise carrier. The maritime safety responsibility focus of Finnish adventure cruise ships follows the future development of the Arctic. Its responsibility points are combined with the protection of humanistic features of the ecological environment in its own region, and its environmental protection model of the sea and land integration extends the country’s maritime rights. Norway mainly breaks through the flag state jurisdiction of the cruise ship by promoting the principle of territorial jurisdiction through the Norwegian Criminal Responsibility Standard of the captains and crews, so as to form the declaration of the right to speak in the Arctic region of Norway. The focus of the responsibility for maritime safety of Danish adventure cruises lies in the geographical identification of specific areas and the definition of legal risks, which has provided factual evidence for the manifestation of the sovereignty of the country, and defined the country’s right to speak on Arctic affairs through the legal risks of specific regions. In addition to the traditional marine environmental pollution damage, the scope of maritime safety also includes the upstream part of the shores of adventure cruises. Sweden achieves its Arctic claims primarily through international cruise liability standards for adventure cruise ships. The responsibility of the Swedish adventure cruise lies in the characteristics of local resources and environment and the international treaty regulation of polar bear protection, so as to achieve environmental protection and sustainable development of domestic economic interests. The focus of Iceland’s adventure cruise ships lies in the risk-sharing mechanism of navigational responsibility under the background of freedom of navigation in the Arctic waterway and the differentiated management of the original ecological natural environment to realize national interest consideration. The freedom of navigation it claims has the attributes of national interests.To sum up, the value of the Arctic adventure cruise national responsibility system and the integration of key responsibilities and interests are different. The state of coupling national interests forms the inconsistencies in the logical starting point of the responsibility system, presenting a reasonable gap under the presentation of the sovereignty of Arctic states. This would lead to the divergence of rights remedy channels, the different value levels of the integration of navigation safety interests, the inconsistency of the logical starting point of the responsibility system of Arctic expedition cruise ships, and the difficulty of forming a regional regularization regime of liability systems. Details are presented in Table 1.
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发表于 2020-8-13 09:01:15