Can the Polar Code Save the Arctic?
At the sixty-eighth session of the Marine Environment Protection Committee (MEPC) of the International Maritime Organization (IMO) from May 11–15, 2015, the environmental provisions of the International Code for Ships Operating in Polar Waters (Polar Code) were adopted. This, in combination with the safety-related requirements adopted by the ninety-fourth session of the Maritime Safety Committee (MSC) in November 2014, completed the creation of the Polar Code.
Arctic sea ice is melting at an accelerating rate. Shipping activities are therefore projected to increase as a result of natural resource exploration and exploitation, tourism, and faster transportation routes between Europe and northern Asia. In a fragile marine ecosystem like the Arctic, ships could cause serious marine pollution. Though oil pollution from shipping accidents attracts the most attention due to several tanker spill disasters such as the Torrey Canyon (1967), Amoco Cadiz (1987), Exxon Valdez (1989), Erika (1999) and Prestige (2002), it is the operational discharge of oil and oily mixtures, noxious liquid chemicals, sewage, garbage, and air pollution from ships that are the main cause of damage to the marine environment. Shipping also poses threats to marine ecosystems by transferring exotic organisms in ballast water and leaching tributyltin (TBT) and other toxic chemicals used in anti-fouling paints which coat the hulls of ships.
The IMO has been actively dealing with marine pollution from shipping for decades. Under the auspices of the IMO, a number of conventions have been adopted to tackle the problem. These mainly include the International Convention for the Prevention of Pollution from Ships (MARPOL), the International Convention for the Safety of Life at Sea (SOLAS), the International Convention on the Control of Harmful Anti-fouling Systems on Ships (Anti-Fouling Convention), and the International Convention for the Control and Management of Ships' Ballast Water and Sediments (BWM Convention, not yet in force). These conventions apply globally, including to Arctic shipping. However, in a dark, harsh, and remote marine environment, Arctic-specific provisions are needed in addition to the requirements contained in existing IMO instruments.
Although the Arctic Council is the primary forum for regional cooperation in the Arctic, the IMO has been playing a key role for the regulation of Arctic shipping at the international level. In 2002, the IMO approved the Guidelines for Ships Operating in Arctic Ice-Covered Waters. In 2009 the Guidelines for Ships Operating in Polar Waters was adopted, covering both Arctic and Antarctic waters. Further, the proposal for the adoption of a mandatory Polar Code had been discussed within the IMO’s Sub-Committee on Ship Design and Equipment (DE) for years. The Polar Code is expected to enter into force in its entirety on January 1, 2017. This Insight provides an overview of the Polar Code and briefly assesses whether the Polar Code is sufficient for the protection of the marine environment in the Arctic from vessel-source pollution.
What is the Polar Code?
In order to keep up with rapid developments of technology and techniques in the shipping industry, the IMO uses “tacit acceptance” as the amendment procedure for most of its conventions. This means amendments to technical annexes of an IMO convention will enter into force after a certain period if a specified number of state parties do not oppose amendments within that period of time. The Polar Code constitutes technical amendments to Annexes I, II, IV, and V of MARPOL and a new Chapter XIV of SOLAS with a specific focus on the Polar Regions. The introduction to the Polar Code contains mandatory provisions applicable to both Part I (maritime safety measures) and Part II (pollution prevention measures). Parts I and II are each subdivided into subparts A (mandatory provisions) and B (recommendations).
The goal of the Polar Code is to provide for safe ship operation and the protection of the polar environment by addressing risks present in polar waters that are not adequately mitigated by other instruments of the IMO. It is designed to supplement rather than replace existing IMO instruments. The Polar Code recognizes that polar ecosystems are vulnerable to ship operations and that polar water operations may impose additional demands on ships, their systems, and operations beyond existing requirements of the MARPOL, SOLAS, and other relevant binding IMO instruments. The Code also acknowledges that coastal communities in the Arctic could be, and that polar ecosystems are, vulnerable to human activities, such as ship operation. Due to unique conditions of the polar regions, sources of hazards for shipping in the Arctic include, for example, ice, low temperature, extended period of dark or daylight, high latitude that may affect navigation and communication system, remoteness, rapid changing and severe weather conditions, lack of ship crew experience in polar operations, as well as the sensitivity of the polar environment to harmful substances and other environmental impacts and its need for longer restoration. The Polar Code is applicable to three categories of ships: 1) a Category A ship is designed for operation in at least medium first-year ice, which may include old ice inclusions; 2) a Category B ship is a ship not included in category A, designed for operation in at least thin first-year ice, which may include old ice inclusions; 3) a Category C ship is designed to operate in open water or in ice conditions less severe than categories A and B.
Part I of the Polar Code concerns maritime safety measures. This part also contributes to the protection of the Arctic marine environment because maritime safety and environmental protection are interlinked. For example, carefully planned ship routing in marine protected areas could avoid ship collision with marine mammals. Any safety measure taken to reduce the probability of an accident would also benefit the environment. Through the new SOLAS chapter XIV, “Safety measures for ships operating in polar waters,” Part I-A was made mandatory under SOLAS. Part I-A requires that ships carry a polar water operational manual that describes the ship’s operational capabilities and limitations and details essential procedures for the captain and crew. Other chapters specify requirements for ship structure, subdivision and stability, watertight and weathertight integrity, machinery installations, fire safety/protection, life-saving appliances and arrangements, safety of navigation, communication, voyage planning, and manning and training. It requires every ship to which the Polar Code applies to have on board a valid Polar Ship Certificate, which provides information such as whether the ship is designed to operate in low air temperature, its Polar Service Temperature, operational limitations, a record of its equipment, and a record of inspections.
Part II of the Polar Code addresses sources of vessel-source pollution as defined by the MARPOL. Part II-A was made mandatory under MARPOL Annexes I (Regulations for the Prevention of Pollution by Oil), Annex II (Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk), Annex IV (Prevention of Pollution by Sewage from Ships), and Annex V (Prevention of Pollution by Garbage from Ships). It contains four chapters in line with MARPOL Annexes, which cover oil, noxious liquid substances, sewage, and garbage. It prohibits any discharge of oil or oily mixtures,  noxious liquid substances, or mixtures containing such substances  from any ship into Arctic waters. A category A ship constructed before January 1, 2017 that cannot comply with zero discharge immediately must do so no later than the first intermediate or renewal survey, whichever comes first, one year after January 1, 2017. Sewage discharge within polar waters is prohibited, with some exceptions in MARPOL Annex IV. Discharge of garbage into Arctic waters can be permitted in accordance with regulation 4 of MARPOL Annex V, subject to additional requirements. For example, food waste shall only be discharged when the ship is as far as practicable from areas of ice concentration exceeding 10 percent and more than twelve nautical miles from the nearest land, nearest ice-shelf, or nearest “fast” ice (i.e., ice attached to land or ocean bottom). Part II-B provides additional guidance to Part II and to the Anti-Fouling Convention and Ballast Water Convention.
Is the Polar Code Sufficient?
The adoption of a mandatory Polar Code is no doubt good news for the Arctic. The Polar Code provides improved and uniform safety and environmental standards for shipping in the Arctic. The IMO has responded to international community concerns regarding increased shipping activities in an ice-free Arctic relatively quickly. One should not, however, overestimate the role of the Polar Code for the prevention of vessel-source pollution in the Arctic. The Polar Code has left several issues of vessel-source pollution for another day.
For example, heavy fuel oil is considered more environmentally hazardous than other marine fuel oils because it is slow to break down in the marine environment, particularly in cold polar waters. Regulation 43 of MARPOL Annex I entered into force on August 1, 2011. The regulation prohibits both the carriage in bulk as cargo and the carriage and use as fuel of certain crude oils in Antarctica. A similar ban in the Arctic was advocated by non-governmental organizations during the negotiation of the Polar Code. Despite this, it is only provided as a recommendation in Part II-B, which states that ships are encouraged to apply regulation 43 of MARPOL Annex I when operating in Arctic waters. Moreover, in a fragile ecosystem like the Arctic, the marine ecosystem is more vulnerable to invasive species from ballast water as well as biofouling. Nevertheless, both ballast water management and anti-fouling are only addressed in Part II-B as recommendations. Furthermore, the Polar Code does not mention air pollution and green house gas emissions from shipping at all.
The adoption of the Polar Code provides uniform standards for the shipping industry to embrace in the era of Arctic shipping. The Polar Code is also positive news for the Arctic marine environment as it enhances current regulation of shipping activities. It provides, however, only an initial step by the international community to deal with vessel-source pollution in the Arctic. Further development is necessary, in particular regarding regulation of heavy grade oil, ballast water management, and anti-fouling requirements, in order to minimize pollution from increased shipping in this unique marine environment.
About the Author: Nengye Liu is a Senior Lecturer at the School of Law, University of New England, Australia.
 Int’l Maritime Org. [IMO], Res. MEPC. 264 (68) (May 15, 2015).
 IMO, Res. MSC.385(94) (Nov. 21, 2014).
 International Convention for the Prevention of Pollution from Ships, adopted Nov. 2, 1973, 1340 U.N.T.S. 184, 12 I.L.M. 1319; International Convention for the Safety of Life at Sea, adopted Nov. 1, 1974, 1184 U.N.T.S. 2, 14 I.L.M. 959; International Convention on the Control of Harmful Anti-fouling Systems on Ships, adopted Oct. 5, 2001, AFS/CONF/26; International Convention on Ballast Water Management for Ships, adopted Feb. 13, 2004, BWM/CONF/36.
 International Code For Ships Operating In Polar Waters, intro., ¶ 4, adopted May 15, 2015, http://www.imo.org/en/MediaCentre/HotTopics/polar/Documents/POLAR%20CODE%20TEXT%20AS%20ADOPTED.pdf [hereinafter Polar Code].
 Id. intro., ¶ 1.
 Id. pmble., ¶ 2.
 Id. pmble., ¶ 4.
 Id. intro., ¶ 3.
 Id. intro., ¶¶ 2.1, 2.2, 2.3.
 Id. pmble, ¶ 5.
 Id. part I-A, ch. 1, ¶ 1.3.1.
 Id. Part II-A, ch. 1, ¶¶ 1.1.1, 1.1.
 Id. part II-A, ch. 2, ¶¶ 2.1.1, 2.1.
 Id. part II-A, ch. 1, ¶¶ 1.1.3, 1.1.
 Id. part II-A, ch. 4, ¶¶ 4.2.1, 4.2.
 Id. part II-A, ch. 5, ¶ 5.2.1.
 Those having a density, at 15°C, higher than 900 kg/m3; oils, other than crude oils, having a density, at 15°C, higher than 900 kg/m3 or a kinematic viscosity, at 50°C, higher than 180 mm2/s; or bitumen, tar and their emulsions (known as heavy grade oil).
 Polar Code, supra note 4, part II-B, ch. 1, ¶ 1.1.