IMO undertook an initiative to regulate polar operations in the 1990s partly in reaction to this oil spill + to reconcile the various approaches to polar shipping regulations by companies and some countries
Concluded in 1982, UNCLOS is the current legal framework governing the rights and responsibilities of nations in their use of oceans. It entered into force in 1994 and has been signed by 162 countries. It is largely recognized of having status as customary international law (CIL) (yet to be disputed).
UNCLOS has a constituitional character, developed on the basis that all uses of the oceans are interrelated and thus require a comprehensibve approach. The Convention actively encourages the development of a holistic approach to managing maritime issues, and anticipates the subsequent development of its conceptual structures through additional global and regional agreements.
Part XII, Protection and Preservation of the Marine Environment includes a general obligation to protect and preserve the marine environment (Art. 192) as well as an obligation to undertake measures, individually or jointly, to prevent, reduce, and control pollution of the marine environment (Art. 194).
With specific respect to Ice-Covered Areas (Part Xii, Section 8), states have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.
(Source: The International Law of the Sea/ Donald R Rothwell & Tim Stephens; UNCLOS; imo.org)
In doing so they recognized that the Arctic region required provisions above and beyond what was provided for in existing statutory IMO instruments. Note that these guidelines are non-mandatory and less stringent than the anticipated mandatory code.
"The Convention will only enter into force 12 months after ratification by 30 states, representing 35 per cent of the world shipping tonnage. The Convention will require all ships to implement a ballast water and sediments management plan, carry a ballast water record book and implement ballast water management procedures to a given standard." At present, the Convention is not yet in force. (Source: Transport Canada)
The IMO responded by developing non-mandatory "Guidelines for ships operating in polar waters" (Resolution A.1024(26)), which replaced the "Guidelines for ships operating in Arctic ice-covered waters". It came into effect for ships constructed on or after January 1, 2011. The inclusion of the Antarctic into these non-mandatory guidelines are the reason why the development of a mandatory Arctic Shipping Code became the Polar Code, inclusive of both polar regions.
At IMO Marine Safety Committee 86, Denmark, Norway and the U.S. proposed that a a new work programme item be added to the DE Sub-Committee agenda and any other appropriate sub-committees as a high priority in order to consider and develop mandatory requirements for the Polar Regions. DE Sub-Committee 52/21/Annex 12 provided a justification for a new work programme item: "Development of a Code for ships operating in Polar waters".
"The reason for creating a mandatory code was that any ship traffic would only have international high-seas rules and that there would be no particular requirements for ships operating in polar waters." -- Sigurd Gude, Deputy Director General of the Norwegian Maritime Authority
The AMSA was led by Canada, Finland the the U.S., and included Permanent Participants (indigenous organizations) of the Arctic Council, among other members of the global maritime community. The report is considered to be an authoritative source recognizing the critical importance of the marine environment and resources to indigenous communities in the Arctic.
Among other recommendations, this report suggested:
• Mandatory measures that are developed in accordance with the provisions of customary international law would be an effective way to provide guidelines for polar marine safety and environmental protection
• with increased navigation, the threat of alien species and pathogens from ballast water discharges and hull fouling present a serious threat to the Arctic marine environment
With regards to protecting Arctic indigenous peoples & the environment, recommendations for Arctic states included:
• Undertaking a Survey of Arctic Indigenous Marine Use to identify gaps and collect information for establishing current baseline data to ensure impacts of shipping activities can be identified
• Developing ways for regular engagement with Arctic communities and the shipping industry in order to engage and coordinate ways to increase benefits to communities and reduce negative impacts from shipping
• Identify areas of heightened ecological and cultural significance in light of climate change and increasing maritime traffic
• Explore the need for internationally designated areas for the purpose of environmental protection in regions of the Arctic Ocean using IMO tools like Particularly Sensitive Sea Areas (PSSA)
• Ratify the IMO International Convention for the Control and Management of Ships Ballast Water and Sediments as soon as practical and assess the risk of introducing invasive species through ballast waters et al in waters under their jurisdiction [Canada is a signatory but the Convention is not yet in force due to need for 35 signatories, after which the Convention will come into force a year later]
• Investigate ways to improve oil spill prevention and to prevent release of oil into Arctic waters, by increasing cooperation with industry and supporting research and technology transfer
• Engage with relevant international organizations to increase assessment of effects on marine mammals due to ship noise, disturbance and strikes in Arctic waters and work with the IMO to develop and implement mitigation strategies
• Support development of improved practices and technological innovation to reduce current and future GHG, NOx, SOx, and PM emissions for ships in port and at sea.
The DE Sub-Committee commences work on the Polar Code, and establishes a correspondence group (including observers) to work intersessionally.
In 2010 The International Convention for the Prevention of Pollution from Ships (MARPOL) adopted a new regulation prohibiting the carriage in bulk as cargo, or carriage and use as fuel, of crude oils 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. The amendments came into force August 2011.
At the IMO Sub-Committee on Ship Design & Equipment 56th session, environmental stakeholders proposed including an equivalent provision in the Polar Code prohibiting the use of heavy fuel oil by ships in Arctic waters as well.
These guidelines are non-mandatory and used widely, as well as the basis from which the draft Polar Code are being developed. In comparison, the mandatory code is expected to have stricter requirements on structural and anti-pollution measures, as well as requiring extensive training requirements such as requiring experience of operators in ice conditions. Search and rescue availability may also influence operating decisions.
Chapters 1 through 14 and Annex 3 of the draft Polar Code were forwarded to the Marine Environment Protection Committee (MEPC) for review, while the Environmental Protection chapter was held in abeyance for further discussion. Environmental matters dominated the discussion at this session and no agreement could be reached among participants.
The scope of the workshop was to identify identify all potential hazards, hazard causes, hazard consequence modification factors and safeguards that apply in the polar waters or are of particular concern. Members sought to identify, develop and agree on causal relationships between factors using a risk-analysis model, as well as agreeing upon a common list of main contributing factors to risk that arise in polar waters. Priorities for safeguards were also sought, with the aim of all these factors to make up the technical input to be considered when drafting the Polar Code -- however, the final report indicates that not all objectives were met due to time constraints.
This is the next scheduled session of the DE Sub-Committee, meeting from March 18-22, 2013 in London, England .
(source: AMSA 2009 Report)
Destinational shipping will prevail and increase in the meantime