Freezing out noncompliant ships: why the Arctic Council must enforce the Polar Code.

• Author: Wanerman, Richard O.G.

The International Maritime Organization's Polar Code is intended to regulate the nature of commercial shipping in the Arctic and Antarctic by setting minimum standards for ships transiting though Polar waters. This region of the world is unique, and has certain characteristics that make it both attractive and dangerous. However, the Polar Code, which is still in draft form, does not currently have an enforcement mechanism apart from traditional state party monitoring, which may result in oversights that lead to catastrophic accidents in remote parts of the Arctic. This Note analyzes how the absence of a clear enforcement mechanism and uncertainty regarding the draft Code could result in the failure of the Code to protect the Arctic while still permitting shipping through it. This Note further analyzes how the Arctic Council, an institutional assembly of states with an Arctic territorial presence, could assume a monitoring and enforcement role within the Polar Code, due to its existing experience with the Arctic and with its recent expansion of responsibilities. This Note concludes that the International Maritime Organization needs an active enforcement mechanism for the Polar Code to avoid noncompliance through negligence and the risk of catastrophic accidents, as well as to encourage industry compliance with the Code. This Note recommends that the International Maritime Organization make the Arctic Council and its member states the enforcement mechanism for the Polar Code, based on the Council's prior success with a Search and Rescue Agreement. These states have the capacity and interest in enforcement, and can help bring about rapid international acceptance of the Polar Code as the Arctic Ocean becomes a viable sea route.

CONTENTS I. Introduction II. The Special Nature of the Arctic III. The Need for an Enforceable Polar Code A. The Northward Push of Shipping B. The Patchwork Nature of Existing International Law in the Arctic C. The State of the Polar Code D. Lessons from the SAR Agreement IV. Why the Arctic Council Must Become Involved in the Polar Code V. Implications for the Future of the Arctic VI. Conclusion I. INTRODUCTION

The Arctic Ocean is changing faster than the international community can currently respond. The sea ice is retreating at an uncomfortably rapid rate, (2) making the Arctic Ocean increasingly accessible for commercial uses. The Arctic states, with high volumes of natural commodities found within the Arctic Circle, want to transport these commodities to market by ship, which remains the most cost-effective means of cargo and freight transportation. (3) Yet, no comprehensive, Arctic-centric legal regime currently exists for shipping regulation. (4) The International Maritime Organization (IMO) released an official draft of the intended Polar Code for such shipping in late .January, 2014, after many years of work; its projected date of earliest implementation in 2016. (5) The lack of rapidity regarding such an agreement is troubling, given the rate of expansion of open water in the Arctic, (6) and is a policy area into which the Arctic Council must play a more important role.

An Arctic shipping agreement has been a priority issue for the Arctic Council since the ministerial meeting in 2000. (7) The IMO, which had an interim set of guidelines for Polar operations, (8) is now working on integrating the draft Polar Code into the existing IMO guidelines for safety and pollution to make it a mandatory instrument. (9) However, neither the existing guidelines nor the final Polar Code will have active enforcement powers; as a result, "actual application is evident only through state practice and the extent to which international shipping complies." (10) This legal void will pose a serious problem for the future integrity of the Arctic, and is one that the Arctic Council should fill. It has already demonstrated its ability to work together on issues of mutual safety and welfare in the enactment of a search and rescue agreement (SAR Agreement), (11) and can build on the principles of that agreement in creating an enforcement regime for the Polar Code in the Arctic that is amenable to the IMO. Such role within the pending Polar Code establishes the Council's position as a unified body for the region while also establishing a clearly enforceable legal system for maritime standards in the Arctic by the states whose shores border it and whose people mostly utilize its waters. (12)

The Arctic Council must have an enforcement role in the Polar Code for the Code to be effective in the Arctic. Part II will briefly examine the special nature of the Arctic region, and why close cooperation between the Arctic Council states is vital to the successful management of this region. Part III will discuss the nature of the Polar Code, why it needs an active enforcement mechanism, and how the recent history of the Arctic Council demonstrates its viability as the best entity to enforce the Polar Code. Part IV will then lay out the appearance of the proposed enforcement regime. Part V will conclude with a look at the future of binding Arctic Council agreements and cooperation with the IMO on matters of Arctic Ocean affairs.

2. THE SPECIAL NATURE OF THE ARCTIC

   The Arctic is a global region with unique characteristics. Of the Arctic's approximately thirty million square kilometers, (13) fourteen million are water. (14) Ice covers the majority of this water for most of the year. (15) Unlike any other ocean in the world, landmasses almost entirely surround the Arctic Ocean, with only a few notable points of clear transit to either the Pacific or Atlantic Oceans. In essence, it is a semi-enclosed sea. (16) Four million people live within this thirty million square kilometer region, a mix of indigenous peoples and settlers from southern locations. The majority of these people rely on the Arctic Ocean in some capacity for their existence in the far north. (17) This permanent population also lives in an environmentally extreme, yet also very sensitive, region of the world. The Arctic region is defined by its extremes and its cold. The Arctic Circle, the commonly accepted delimitation of the Arctic region, is defined as the southernmost boundary of 24-hour sunlight at the Summer Solstice, as well as the northernmost boundary of 24-hour darkness at the Winter Solstice. (18) That darkness aids in the constant cooling of the seawater into nearly impenetrable ice, (19) which has been an assumed factor in Arctic navigation for centuries. (20)

   This old way of thinking about Arctic navigation is rapidly evolving due to the effects of climate change. Satellite scans of the Arctic over the past thirty years demonstrate a rapid loss of sea ice during the summer months, and predictive models do not show any replacement of the lost ice. (21) By 2050, the Arctic Council believes that the Arctic Ocean will have a completely ice-free summer, permitting full circumnavigation of the Arctic Ocean by cargo ships. (22) While this is a crisis from an environmental standpoint, it is a strategic gauge from a shipping standpoint. More ship traffic could enter the Arctic, and with the effects of the increased traffic in an environmentally weakened region yet unknown, the international legal regimes have yet to adequately address the potential impact of such activity. (23)

   Even with the presence of permanent sea ice closer to the North Pole and Northern Pole of Inaccessibility, (24) the Arctic environment and human knowledge of the Arctic presents certain distinct challenges for shipping, which forms part of the basis for the creation of the Polar Code. Only two main sea routes exist within the boundary of the Arctic Ocean, the Northern Sea Route and the Northwest Passage. (25) Although mariners have now used both these routes for some years, their conditions are still not fully known, as the Arctic Ocean is the least studied of the world's oceans, and thus most hazardous for mariners. (26) The constant presence of ice (for now) requires both certain kinds of ships and a certain level of competency with Arctic waters, which functionally limits many Arctic maritime operations to Arctic states. (27) Further, even if Arctic sea ice becomes permanently smaller and weaker than it is today, such ice will still require monitoring by authorities and care by mariners to avoid any catastrophic disasters in a part of the world from that it is very difficult to be rescued. (28)

3. THE NEED FOR AN ENFORCEABLE POLAR CODE

   The predicted rise in maritime activity in the Arctic and the very delicate nature of the Arctic environment require a substantial response on the part of the Arctic Council states soon if they wish to achieve an effective solution to a growing problem. The coordinate factors of climate change and resource extraction are pushing maritime activity northward, (29) into a part of the world that is rather small and ecologically sensitive, yet does not currently have an effective means of policing who goes into the Arctic and how they operate in the region. Although a combination of international legal standards theoretically governs regional maritime activity, none is yet comprehensive and region-specific. (30) The Polar Code will provide the regulatory framework necessary to ensure the integrity of future Arctic shipping, but will leave no functional enforcement mechanism. This leaves the Arctic Council as the international body best suited to enforce the Polar Code and to establish the way forward in Arctic maritime affairs. Part A will discuss how the Arctic will become a more viable way of shipping goods around the world. Part B will discuss how the existing legal framework governing any Arctic shipping is inadequate to the pressing needs of the Arctic region. Part C will discuss how the Polar Code will make Arctic shipping a more viable and safe option for international trade, but also point out its flaws. Part D will use the Arctic...