Revisiting the Polar Code: Where Do We Stand?
The Russian icebreaker Kapitan Dranitsyn during an expedition in the Arctic Ocean north of Russia in 2006. Photo: NOAA Climate Program Office
When the Polar Code entered into force on 1 January 2017, it concluded a process that had kept working groups and committees at the International Maritime Organization (IMO) busy for the better part of two decades. Few could have predicted the Polar Code’s impressive journey when concerns over the safety of ships navigating polar waters first kicked off discussions at the IMO in the early 1990s. From a set of voluntary safety guidelines, the Code gradually developed into today’s sophisticated, legally binding catalogue of rules whose stated objective is not only to make shipping in polar waters safer, but also to mitigate its impacts on Arctic and Antarctic environments.
After years of contentious debates, the eventual adoption of the Polar Code clearly constituted an unprecedented achievement in the governance of polar shipping.1) And yet, critical voices called for the Code’s reform and further development even before the ink on its final provisions was dry. Environmental advocacy groups in particular admonished that the Polar Code was doing too little to prevent shipping accidents and pollution with potentially catastrophic consequences for polar environments. Over two years after it took effect, it is thus worth revisiting the Polar Code to take stock: First, to what extent is the criticism of the current Polar Code warranted? And second, to what extent have calls for its reform been heeded and its potential shortcomings remedied?
A Timely Measure
Unsurprisingly, the Polar Code’s creators celebrated its entry into force as a historical milestone – and perhaps deservedly so. After all, not only does it recognize the special hazards shipmasters face when navigating ice-covered waters, ranging from freezing temperatures, harsh and unpredictable weather, extended periods of darkness, and hard-to-detect icebergs. It also introduces pragmatic measures shipowners have to take to ensure the safety of ships and crew in the face of these threats. Moreover, the new Code also addresses a different area of concern: that the increased presence of ships in remote polar regions will inevitably take a toll on environments that have witnessed only low levels of shipping activity in the past. By prescribing ship designs to prevent accidents and putting limits on the discharge of oil, chemicals, sewage, and garbage, the Code seeks to do its part in minimizing the ecological footprint of polar shipping.
For the Arctic in particular, the new rules could not have come at a better time. Historic lows in sea ice extent have sparked a lively (and sometimes overblown) debate over the economic potential of increasingly accessible shipping routes. Even though commercially viable container shipping through the Arctic Ocean might still be decades away, shipping activity in the Arctic has been on the rise. A growing number of cruise ships are venturing deeper into the ice-covered waters of the High North, catering to an ever-expanding market for “last chance” tourism. At the same time, Russia’s exploitation of Arctic natural resources has recently gained steam, requiring a growing number of bulk vessels to ship northern gas and oil to both domestic and foreign markets.2) In the face of these trends, the fact that the international community managed to enact a binding set of rules before widespread Arctic shipping started deserves credit.
Milestone or Imperfect Compromise?
However, the enthusiasm over the final outcome of the Polar Code negotiations was not universally shared. As soon as discussions on the final outcome came to an end in the IMO’s Marine Environment Protection Committee (MEPC), a consortium of environmental NGOs voiced their concerns that the Polar Code was not going far enough, and would leave marine life in Arctic waters exposed to critical dangers.
When studying the Polar Code’s provision in greater detail, one soon discovers that notable gaps remain. Perhaps the most glaring omission comes with regard to heavy fuel oil (HFO), a highly toxic and viscous fuel used primarily by large ships such as bulk carriers, cargo vessels, and cruise ships. In case of an oil spill, the leakage of HFO can have catastrophic consequences for marine life in the Arctic. Compared to other fuels, HFO is more toxic and takes a longer time to break down in cold water, thus complicating clean-up operations that already pose a logistical challenge in a remote and inhospitable region. Similar concerns convinced IMO members to impose a ban on the transport and use of HFO as fuel around Antarctica in 2011. In the Arctic, by contrast, the Polar Code only recommends that shipmasters refrain from using or transporting what has been described as “the world’s dirtiest fuel”3). Given that HFO represented nearly 57% of total fuel consumed by ships in the Arctic in 2015,4) it is questionable at best whether this recommendation will be observed in practice.
Similarly, measures aimed at preventing ships from transporting non-native species to polar regions are also non-binding, leaving Arctic ecosystems exposed to the introduction of potentially harmful invasive species. According to a 2016 study submitted to the IMO by Friends of the Earth International, eight cases of human-caused, marine bioinvasions – ranging from algae and molluscs to different types of crustaceans – have been reported in waters north of the Arctic Circle.5) With more ships heading for the Arctic Ocean, this issue is likely to become more salient, as is already visible in Arctic regions with higher ship traffic density: if one extends the Arctic’s geographical scope to include waters off Iceland, southern Greenland, or Alaska’s south coast, the number of reported marine bioinvasions jumps to 37. While the Polar Code recognizes the danger of “harmful aquatic species” introduced to the Arctic through ships’ ballast water or hull fouling, it fails to introduce mandatory measures that could effectively counter this threat.
Important Issues Left Unaddressed
Other sources of pollution have been omitted from the Polar Code entirely, underwater noise being one example. Produced by propeller movement and on-board machinery, ship-generated noise can disturb marine mammals by masking sounds vital for communication, reproduction, and orientation6) – a danger that is particularly pronounced in the Arctic, a historically “quiet” region. As more (and larger) ships set sail for Arctic waters, noise levels are bound to go up. For the region’s bowhead whales, belugas, seals, and walruses, this could spell trouble.
Similarly, options to regulate so-called “grey water” discharges – that is, water from sinks and showers aboard ships – were widely discussed during the Polar Code negotiations, but not incorporated into the final document. Cruise ships in particular discharge grey water in great volumes: the U.S. Environmental Protection Agency estimates that an average cruise ship passenger generates between about 135 and 450 litres each day.7) The absence of any rules means that untreated grey water – and the plastics, chemicals, bacteria, and other pollutants contained therein – can be freely discharged in most Arctic waters.
A further notable gap comes with regard to emissions. While the IMO recently pledged to curb CO2 emissions in the shipping sector by 50 percent by 2050, the Polar Code does not cover airborne pollutants. Most importantly, ships emitting black carbon, an aerosol produced by the incomplete combustion of fuel (in particular HFO), have been shown to substantially contribute to the melting of the Arctic ice sheet. When deposited on snow and ice, black carbon absorbs radiation and reduces the amount of sunlight reflected back into space. Although not all black carbon deposited in the Arctic originates from local sources such as Arctic shipping, studies have shown that its climate-warming effect is much more pronounced when emitted at higher latitudes.8)
A final issue concerns the Polar Code’s safety provisions. The Code’s novel requirements in this respect do not apply to all ship types, notably sparing fishing vessels, private yachts, and smaller cargo ships.9) While accidents involving these kinds of vessels might not be as damaging to the environment as, say, those involving cruise ships or oil tankers, the lack of Arctic-specific safety provisions is concerning nonetheless. After all, fishing vessels constitute the largest overall shipping presence in Arctic waters, and the number of private yachts venturing into uncharted waters along Canada’s storied Northwest Passage has grown rapidly in recent years.10) Against this background, NGOs such as the Antarctic and Southern Ocean Coalition have demanded urgent action11) to address the risks posed by small vessel incidents to the environment and people in the polar regions.
Progress in some Areas…
Fortunately, efforts to address some of the Polar Code’s shortcomings were launched almost as soon as the final compromise had been struck at the IMO. The most promising development in this context has been the momentum building towards a ban on the use of HFO as fuel in Arctic waters. After a proposal was put forward by a group of countries – including several Arctic states – to the MEPC, the committee agreed last year to work out the details for a ban, which would enter into force by 2021 the latest.
Yet, despite the mobilization of widespread international support through civil society actors such as the Clean Arctic Alliance, the two Arctic states with the longest coastlines are not yet fully ready to commit to the ban. Russia and Canada have justified their reluctance by arguing that an HFO ban could have adverse consequences on the energy supply of local communities, and accordingly demanded that impact assessments be carried out first. Agreement on the ground rules of such assessments was reached at a recent IMO meeting, marking a small but crucial step in the long process toward an HFO-free Arctic.
…Stagnation in Others
In other areas, by contrast, discussions have taken place, but genuine progress has been slow to materialize. Extending the Polar Code’s safety provisions to fishing vessels and private yachts has been a recurring agenda item at the IMO since 2015, but the outcome remains cloudy. At the most recent session of the Maritime Safety Committee (MSC), some parties expressed the view that from a legal perspective, fishing vessels would potentially fall outside the scope of the Polar Code. Others voiced concerns over the financial and administrative burdens that additional safety measures would place on shipowners. The enduring resistance by some states means that it remains unclear whether any legally binding measures will eventually be adopted – and how ambitious they will be.
Similarly, discussions on possible measures to control black carbon emissions have dragged on at the IMO for more than five years. In a recent development, a special working group concluded that there are indeed several ways to reduce black carbon emissions from ships – for instance by switching from HFO to distillate fuels or liquid natural gas (LNG).12) To what extent these findings will be translated into substantial policy is not yet clear, but if previous discussions are any indicator, the issue will certainly remain contentious.
Finally, some environmental issues have struggled to make the IMO’s agenda at all. Concerns over the environmental impacts of grey water discharges continue to surface in discussions, but serious attempts to develop an international regulatory framework have not yet materialized. Canada has recently taken the initiative and raised the issue of underwater noise at the MEPC, but even if it ended up on the committee’s agenda, it would likely take years before any meaningful action is taken.
More Work to Do
Admittedly, international negotiations move slowly, and two years might be too short of a timeframe to critically evaluate the progress made since the Polar Code entered into force. Moreover, there are encouraging signs that the community of seafaring states is not completely resting on their oars but have taken proactive steps to address some of the environmental hazards that the Polar Code omitted. Most importantly, the envisioned ban on the use of HFO would, if implemented properly, mitigate one of the greatest threats to the Arctic marine environment.
At the same time, the Arctic as a region is experiencing a rapid transition, and protecting its environment requires immediate and ambitious action in different areas of global governance – be it climate change mitigation, biodiversity protection, or the regulation of shipping. Regarding the latter, the fact that in the coming years, more and more ships will chart course for the Arctic may be inevitable; the consequential degradation of the marine environment, however, is not. Fortunately, the IMO has proven to be a comparatively effective pillar of global ocean governance, and a forum where states have found agreement to tackle substantial challenges confronting international shipping. The Polar Code’s first take is proof of that. Yet, the work is not done. A long list of issues remains, and Arctic and non-Arctic states alike should recognize the present opportunity to preserve a unique environment on the brink of undergoing a fundamental transformation.
Hendrik Schopmans is a PhD researcher at the WZB Berlin Social Science Center and a research affiliate at the Institute for Advanced Sustainability Studies (IASS).
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