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ABSTRACT
This article examines shortcomings of the Polar Code (PC) from a Russian perspective. While the PC represents a historic milestone in international regulation of navigation in polar waters, the expert community has noted several drawbacks. Russian experts’ concerns relate mainly to potentially negative effects of the PC’s goal-oriented approach. The code leaves much to the discretion of the flag states’ administration, shipowners, and classification societies in terms of defining the exact scope and substance of the safety standards. This approach exacerbates the problem of weak control over maritime operators’ compliance with international requirements. Since polar shipping requires special capacities, knowledge and skills available only to a limited group of stakeholders, the goal-oriented approach could pose significant risks in the Arctic. This article studies possible measures to mitigate these challenges, such as the implementation of national safety requirements based on Art. 234 of UNCLOS, establishment of a regional port state control mechanism and exercise of port state jurisdiction.
Acknowledgments
I would like to express special gratitude to Professor P. Whitney Lackenbauer for his support and proofreading. I am also grateful to Professor Tore Henriksen and Dr Jan J. Solski, whose extensive and valuable comments to this paper provided me with immense help.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 ”The Increase in Arctic Shipping 2013–2019.”
2 ”Data of the Russian Federal Service of State Statistics.”
3 Humpert, “Maersk to Return to Arctic.”
4 ”IMO prinjala Poljarnyj kodeks”
5 ”Rossija vystupaet za usilenie.”
6 See Zagorski, “Implementation of the Polar Code”; Vylegzhanin, Ivanov, Dudikina, “Poljarnyj kodeks.”
7 Grant, “Implementation of the Polar Code,” 196.
8 See Hamann, Peschmann “Goal-Based Standards.”
9 Hindley, “The Role of the Polar Code,” 184.
10 Jensen, “International Code for Ships,” 70.
11 Yang, “Implementation of Port State Control,” 6.
12 Mednikov, “Polar Code: Critical Assessment,” 14.
13 Shaughnessy, Tobin “Flags of Inconvenience,” 14
14 Ibid., 19.
15 ”List of applications”
16 It should be mentioned, though, that a large amount of foreign states, including some of those classified as flags of convenience, authorised the Russian Maritime Register of Shipping (RS) to carry out surveys of ships flying their flags under the Polar Code and to issue Polar Ship Certificates. See the official web-site of the RS https://rs-class.org/ru/register/info/authorisations.php.
17 Bognar “Russian Proposals on the Polar Code,”117.
18 See, e.g., Vylegzhanin, Ivanov, Dudikina “Poljarnyj kodeks, “55; Gavrilov, Dremliuga, Nurimbetov, “Article 234,” 4.
19 Klyuev, “On Amendments to Certain Legislative Acts”
20 Rules of navigation.
21 Rules of navigation, Annexe II.
22 Molenaar, “Options for Regional Regulation,” 276.
23 Diplomatic Note from the Government of the United States to the Government of the Russian Federation regarding the Northern Sea Route Regulatory Scheme.
24 Molenaar, “Options for Regional Regulation,” 290.; Thorén, “Article 234,” 50.
25 Zagorski, “Implementation of the Polar Code,” 227.
26 Code of Administrative Offences, Article 23.10.
27 ”IMO Resolution A.682(17).”
28 Molodcov, Mezhdunarodnoe morskoe pravo, 54.
29 Regulation 19 of Chapter I of SOLAS; Art. 5 (2), 6 (2), Regulation 8A Of Annexe I, Regulation 15 of Annexe II, Regulation 8 of Annexe III of MARPOL etc.
30 Port State Control, IMO.
31 Kraska, Pedrozo, International Maritime Security Law, 429–434.
32 Arctic Council, “Arctic Marine Shipping Assessment Report,” 62
33 Arctic Ocean Review Final Report, Recommendation 5.
34 Bai, Wang, “Enhancing Port State Control,” 8.
35 Ibid., 8.
36 ”Implementation of the International Code.”
37 Molenaar, “Options for Regional Regulation,” 285.
38 Detailed analysis of ship traffic on the NSR.
39 Joint Ministerial Declaration.
40 See, e.g., Annual Report On Port State Control in the Asia-Pacific Region, 5.
41 Today AC observers are France, Germany, the Netherlands, Poland, Spain, UK, China, Italy, Japan, Republic of Korea, Singapore, India and Switzerland. See https://arctic-council.org/index.php/en/about-us/arctic-council/observers
42 Zagorski, “Russia and USA in the Arctic,” 17.
43 Henriksen, “Norway, Denmark,” 275–276.
44 Ibid., 294.
45 Zagorski, “Implementation of the Polar Code,” 225.
46 Molenaar, “Port State Jurisdiction,” 227.
47 Marten, “Port State Jurisdiction, International Conventions,” 117; Molenaar, “Port State Jurisdiction,” 226; Ringbom, Ryngaert, “Introduction: Port State Jurisdiction,” 382.
48 Marten, “Port State Jurisdiction, International Conventions,“ 121.
49 Ibid., 137.
50 Marten, “Port State Jurisdiction over Vessel Information.” 483.
51 Marten, “Port State Jurisdiction, International Conventions “ 124–125.
52 Molenaar, “Port State Jurisdiction,” 233.