Polar Code implementation in the Arctic Five: has harmonisation of national legislation recommended by AMSA been achieved?

ABSTRACT

In the seminal Arctic Marine Shipping Assessment 2009 Report, Arctic states were urged to explore the harmonisation of their national maritime regulatory regimes and uniform safety and environmental protection regulatory regimes. These recommendations were important because before the Polar Code was fully adopted in 2015, there existed no dedicated international standard for polar shipping and some Arctic states legislated national regimes on a unilateral basis. Arctic states endeavoured to facilitate the development of international safety and pollution prevention rules and standards through the IMO, culminating in the adoption of the Polar Code. Over the last 5 years the Arctic Five have implemented the Polar Code in their capacities of flag and coastal states. Against this backdrop, this article discusses the extent to which and how the Arctic Five have pursued the legislative harmonisation recommended by the AMSA report.

KEYWORDS:

• Arctic Five
• Arctic Council
• IMO
• legislative harmonisation
• Polar Code

Acknowledgments

Research support for this paper was provided by ‘Safe Navigation and Environment Protection’ funded by the Canada First Research Excellence Fund through the Ocean Frontier Institute, Halifax, Canada

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

^1. Tromsø Declaration, Sixth Ministerial Meeting of the Arctic Council, 29 April 2009.

^2. Arctic Council, Arctic Marine Shipping Assessment 2009 Report, recommendations.

^3. The Polar Code was adopted through four IMO resolutions: International Code for Ships Operating in Polar Waters (Polar Code), Resolution MSC. 385(94) (21 November 2014, effective 1 January 2017); Amendments to the International Convention for the Safety of Life at Sea 1974, Resolution MSC. 386(94) (21 November 2014, effective 1 January 2017); International Code for Ships Operating in Polar Waters (Polar Code) Resolution MEPC. 265(68) (15 May 2015, effective 1 January 2017); Amendments to MARPOL Annexes I, II, IV and V, Resolution MEPC. 266(68) (15 May 2015, effective 1 January 2017).

^4. United Nations Convention on the Law of the Sea (adopted 10 December 1982, in force 16 November 1994) 1833 UNTS 3 (UNCLOS), art. 234.

^5. International Convention for the Safety of Life at Sea (adopted 1 November 1974, in force 25 May 1980) 1184 UNTS 2 (SOLAS); MARPOL. International Convention for the Prevention of Pollution from Ships (adopted 2 November 1973) 1340 UNTS 184, as amended by the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships (adopted on 17 February 1978, in force on 2 October 1983) 1340 UNTS 61 (MARPOL).

^6. SOLAS, ch. XIV reg. 3; MARPOL Annexe I reg. 47, Annexe II reg. 22, Annexe IV reg. 18 and Annexe V reg. 14.

^7. Polar Code, Part II-B para. 1.1; MARPOL Annexe I reg. 43.

^8. Polar Code, Part II-B para. 1.2.

^9. Ibid., Part II-B paras. 2–4.

^10. UNCLOS, Art. 234; Nordquist, ed., United Nations Convention on the Law of the Sea 1982, 392–98.

^11. IMO, Status of IMO Treaties (7 April 2020), http://www.imo.org/en/About/Conventions/StatusOfConventions/Pages/Default.aspx (accessed 11 June 2020), 131.

^12. Northern Canada Vessel Traffic Services Zone Regulations, SOR/2010-127; Chircop et al. “Canada’s Implementation of the Polar Code,” 433.

^13. Chircop et al., 433 et seq.

^14. Government of Canada. Statement on Canada’s Arctic Foreign Policy. Government of Canada, 12 May 2017. https://www.international.gc.ca/world-monde/assets/pdfs/canada_arctic_foreign_policy-eng.pdf (accessed 11 June 2020), 12 et seq.

^15. Canada’s Arctic and Northern Policy Framework (18 November 2019), https://www.rcaanc-cirnac.gc.ca/eng/1560523306861/1560523330587 (accessed 11 June 2020), Goal 5.9 and Annexe.

^16. United States-Canada Joint Arctic Leaders’ Statement. Justin Trudeau, Prime Minister of Canada, 20 December 2016, https://pm.gc.ca/en/news/statements/2016/12/20/united-states-canada-joint-arctic-leaders-statement (accessed 11 June 2020).

^17. Canada’s Arctic and Northern Policy Framework, International Chapter; Oceans Protection Plan (7 November 2018), https://www.tc.gc.ca/en/initiatives/oceans-protection-plan.html (accessed 11 June 2020).

^18. Arctic Waters Pollution Prevention Act, RSC 1985, c. A-12, s. 2.

^19. See UNCLOS arts. 17, 38, 45 and 58.

^20. Canada Shipping Act, 2001, SC 2001 c. 26 (CSA).

^21. Arctic Shipping Safety and Pollution Prevention Regulations, SOR/2017-286 (effective on 19 December 2017) (ASSPPR).

^22. ASSPPR, reg. 3.

^23. ASSPPR, regs. 5–11.

^24. Ibid., regs. 12–26.

^25. SOLAS, chap. XIV reg. 2.

^26. MARPOL, art. 16.

^27. Naalakkersuisut, “Politics in Greenland”. https://naalakkersuisut.gl/en/About-government-of-greenland/About-Greenland/Politics-in-Greenland (accessed 11 June 2020); Rosenberg Overby, “The Implementation of the Polar Code in Denmark and Greenland,” 451.

^28. Mathiasen and Rasmussen, “Denmark,” 163; Rosenberg Overby, “Implementation of the Polar Code,” 453; Denmark Ministry of Foreign Affairs et al., Denmark, Greenland and Faroe Islands: Kingdom of Denmark Strategy for the Arctic 2011–2020, 17–18.

^29. Rosenberg Overby, “Implementation of the Polar Code,” 453.

^30. Merchant Shipping Act, Act No 75/2014; Mathiasen and Rasmussen, “Denmark,” 162; Rosenberg Overby, “Implementation of the Polar Code,” 454; Act on the Protection of the Marine Environment, Act No 427/2016.

^31. Rosenberg Overby, “Implementation of the Polar Code,” 454; Greenland Marine Environmental Protection Act, Act No 15/2017.

^32. Order for Greenland on the Safe Navigation, etc. of Ships, Order No. 1697/2015; Technical Regulation on the Use of Ice Search Lights during Navigation in Greenland Waters; Order on Ship Reporting Systems in the Waters off Greenland (Reporting Service in Greenland), Order No. 170/2003; Order on Pilotage etc. around Greenland; Order on the Construction and Equipment etc. of Ships; Order on the Activities of Pilot Service Providers and the Obligations of Pilots in Greenland; and Order on Special Training Requirements for the Crew on Vessels that Trade in Polar Waters. See Rosenberg Overby, “Implementation of the Polar Code,” 455–6.

^33. Order on Ship Reporting Systems in the Waters off Greenland, Annexes 1 and 2.

^34. Safety at Sea Act, Act No. 1629/2018; Danish Act on the Manning of Ships, Act No. 74/2014.

^35. Rosenberg Overby, “Implementation of the Polar Code,” 457; Notice of Announcements from the Danish Maritime Authority B. Ship’s building and equipment in ships, etc. Order No. 1512/2016.

^36. Order no. 1512 of 8 December 2016 on Notice B from the Danish Maritime Authority, the Construction and Equipment, etc. of Ships, chap. XIV, ss. 2.1, 2.2, 2.4. 3.1 and 4.1.

^37. Danish Maritime Authority, “Mandatory Pilotage in Greenland,” https://www.dma.dk/SikkerhedTilSoes/Sejladssikkerhed/BrugAfLods/LodspligtiGroenland/Sider/default.aspx (accessed 11 June 2020); Order for Greenland on the Safe Navigation, etc. of Ships, s. 13(1) and 13(2).

^38. Rosenberg Overby, “Implementation of the Polar Code,” 459.

^39. Order for Greenland on the Safe Navigation of Ships, ss. 7(1) and 16.

^40. Order on Ship Reporting Systems in the Waters off Greenland, Annexe 1, para.1.

^41. Ibid., Annexe 2, para. 1.

^42. Order for Greenland on the Safe Navigation of Ships, ss. s. 4(2) and (3), 6(2) and 15(1).

^43. Polar Code, Part I-A, chap. 8, reg. 8.3.3.3; Order for Greenland on the Safe Navigation of Ships, s.8.

^44. Order for Greenland on the Safe Navigation of Ships, s. 4(2); Technical Regulation on the Use of Ice Searchlights during Navigation in Greenland Waters, Order No. 169/2009, s. 5.

^45. IMO, Status of IMO Treaties, 115 fn. 3, 132; Rosenberg Overby, “Implementation of the Polar Code,” 455, 457.

^46. Norwegian Maritime Code of 24 June 1994 No. 39.

^47. Ship Safety and Security Act, No. 9 (16 February 2007), s. 1.

^48. Henriksen, “Norway, Denmark (in respect of Greenland) and Iceland,” 250-54, 262–6.

^49. Regulations of 7 June 2019 on the Construction, Equipment and Operation of Passenger Ships in the Territorial Waters Surrounding Svalbard under the Act of 16 February 2007 No. 9 relating to Ship Safety and Security. Henriksen persuasively argues that Norway is in compliance with the Svalbard Treaty and UNCLOS in regulating cruise shipping in Svalbard’s waters. Henriksen, “Norway, Denmark (in respect of Greenland) and Iceland,” 263–4.

^50. Regulations of 23 November 2016 No. 1363 on Safety Measures for Ships Operating in Polar Waters, ss. 2–3.

^51. Regulations of 29 June 2007 No. 819 on Exceptions from Provisions in the Act of 16 February 2007 No. 9 relating to Ship Safety and Security for Ships Belonging to the Norwegian Armed Forces or Ships Used in Such Service.

^52. Røsæg, “Norway and the Polar Code,” 469.

^53. SOLAS, regs. I/1, I/2 and XIV/2; Røsæg, “Norway and the Polar Code,” 469.

^54. Regulation of 30 May 2012 No. 488 on Environmental Safety for Ships and Mobile Offshore Units, ss. 4, 7, 8, 9, 11, 12 and 19.

^55. Polar Code, Part II-A, reg. 1.1.1.

^56. Regulations of 7 June 2019.

^57. Norwegian Maritime Authority Consultation – Regulations on the construction, equipment and operation of passenger ships in the Norwegian territorial waters surrounding Svalbard (Norwegian Maritime Authority, 2018).

^58. Henriksen, “Norway, Denmark (in respect of Greenland) and Iceland,” 264–5.

^59. Ships Safety and Security Act, s. 54.

^60. Regulation of 1 July 2003 No. 969 concerning the Control of Foreign Ships and Mobile Offshore Units in Norwegian Ports, etc., ss. 1 and 2; Røsæg, “Norway and the Polar Code,” 469.

^61. Svalbard Environmental Protection Act, Act of 15 June 2001 No.79 Relating to the Protection of the Environment in Svalbard, s. 82a; Regulations of 4 April 2014 relating to Large Nature Conservation Areas and Bird Reserves in Svalbard as established in 1973, s. 4.

^62. Peresypkin and Vasilyev, “The Russian Arctic Marine Transportation Policy,” 411–24.

^63. Development Strategy of the Arctic Zone, s. II (4) (d) and s. IV (8) (a), (d).

^64. Development Strategy of the Arctic Zone, s. III (12).

^65. Roach and Smith, Excessive Maritime Claims, 66, 97, 495; Nossova, “Russia’s International Legal Claims in its Adjacent Seas,” 28.

^66. Bobrova et al. “The Northern Sea Route,” 407–15.

^67. Federal Law on Internal Waters, art. 14.

^68. Federal Act on Amendments to Specific Legislative Acts of the Russian Federation related to Governmental Regulation of Merchant Shipping in the Water Area of the Northern Sea Route, adopted by the State Duma on 3 July 2012, approved by the State Council of Federation on 18 July 2012 (Federal Act). The amended legislation included: Federal Law on Natural Monopolies; Federal Law on Internal Sea Waters, Territorial Sea and Adjacent Zone of the Russian Federation; and Merchant Marine Code.

^69. The regulations provide for procedures for NSR navigation, icebreaker services, pilotage, navigation rules, hydrographic and hydro-meteorological services, radio-communication rules, and other regulations. Federal Act, 2012, art. 3 amending the Merchant Marine Code, art. 5.1(2) and (5), and art. 79.

^70. Rules of Navigation, 2013, approved by the Ministry of Transport on 17 January 2013; Guide to Navigating through the Northern Sea Route of 1996; Procedure of Permit Issuance for Transportation and Tugging Operations during Coastal Navigation, as well as other Merchant Shipping Activities by Vessels under Foreign Flags; Communications Instructions for Arctic Navigation 2012–2013 on the Northern Sea Route.

^71. Rules of Navigation, regs. 10, 13–15.

^72. Ibid., regs. 61 and 65.

^73. “Cold wave: The Rules for the Passage of the Northern Sea Route have been created for Foreigners – Warships and Ships will have to Notify Russia of their Plans in 45 days”, Izvestia (6 March 2019), https://iz.ru/852943/aleksei-kozachenko-bogdan-stepovoi-elnar-bainazarov/kholodnaia-volna-inostrantcam-sozdali-pravila-prokhoda-sevmorputi (accessed 24 June 2020). For a commentary, see Solski, “Navigational rights of warships through the Northern Sea Route (NSR) – all bark and no bite?”

^74. Staalesen, “Putin signs Arctic Master Plan.”

^75. Law on Amendment to Russian Federation Constitution (summary translation). President of Russia, 14 March 2020. http://en.kremlin.ru/acts/news/62988 (accessed 11 June 2020), with respect to art. 14(5) of the Constitution.

^76. Bognar, “Russian Proposals on the Polar Code,” 129.

^77. Constitution of the Russian Federation, art. 15 (4); Gutsulyak, International Maritime Law from the Russian Perspective, 2.

^78. Federal Act on Amendments to Specific Legislative Acts of the Russian Federation related to Governmental Regulation of Merchant Shipping in the Water Area of the Northern Sea Route, art. 2 amending art. 14 of the Law on Internal Sea Waters, Territorial Sea and Adjacent Zone.

^79. Amendments to the Rules of Navigation in the Water Area of the Northern Sea Route, Approved by the Order of the Ministry of Transport No. 7, 17 January 2013.

^80. On Empowering the Register with the Authority Used for Commercial Purposes of 1 September 2018, as cited in Bobrova et al. “The Northern Sea Route,” 416.

^81. Ibid., 417. According to the authors, “These Guidelines are intended to surveyors, ship crews and shipowners for use during inspections of ships and equipment, when considering the documents for ships under construction and in operation for compliance with the Polar Code provisions.”

^82. Rules for the Prevention of Pollution from Ships Intended for Operation in Sea Areas and Inland Waterways of the Russian Federation. ND No. 2–020101-134-E. Russian Maritime Register of Shipping, St Petersburg, 2020.

^83. Ibid.

^84. Bobrova et al., ‘The Northern Sea Route,” 416–7.

^85. Skaridova and Skaridov, “The Implementation of the Polar Code in the Context of Russian Arctic Policy and Northern Sea Route Regulation: A Commentary,” 481.

^86. National Security Presidential Directive and Homeland Security Presidential Directive, NSPD-66/HSPD-25 (9 January 2009). https://fas.org/irp/offdocs/nspd/nspd-66.htm (accessed 11 June 2020).

^87. National Strategy for the Arctic Region (10 May 2013). https://obamawhitehouse.archives.gov/sites/default/files/docs/nat_arctic_strategy.pdf (accessed 11 June 2020).

^88. Allen, “Federalism in the Era of International Standards,” 582.

^89. United States v. Royal Caribbean Cruises, Ltd., 11 F. Supp. 2d 1358 (S.D. Fla. 1998).

^90. 33 U.S.C. § 1909, MARPOL Protocol – proposed amendments.

^91. Act to Prevent Pollution from Ships, 33 U.S.C. §§1901-191, Annexe I – Regulations for the Prevention of Pollution by Oil, 33 CFR Parts 151,155, 156, 157; Annexe II – Regulations for the Control of Pollution by Noxious Liquid Substances (NLS) in Bulk, 33 CFR Part 151; Annexe V – Regulations for the Prevention of Pollution by Garbage from Ships, 33 CFR Parts 151; Annexe VI – Regulations for the Prevention of Air Pollution from Ships, 40 CFR 94.

^92. Hazardous Materials Transportation Act of 1974, 49 U.S.C. § 1801–1813; Regulations for the Prevention of Pollution by Harmful Substances in Packaged Form, 46 CFR 148, 49, CFR Parts 171–174 and 176.

^93. Federal Water Pollution Control Act (FWPCA) as amended by the Clean Water Act (CWA)

33 U.S.C. § 1251; Regulations for the Prevention of Pollution by Sewage from Ships, 33 CFR 159.

^94. 33 CFR Subpart E – Discharge of Effluents in Certain Alaskan Waters by Cruise Vessel Operations.

^95. Buhler, “US Polar Policy,” 492.

^96. United States Coast Guard, “Implementation of the International Code for Ships Operating in Polar Waters (Polar Code),” CG-CVC Policy Letter 16–06 (12 December 2016).

^97. Chircop, “The Quest for Universality and Uniformity,” 131.