In May 2015, after nearly five years of work and negotiation, the International Maritime Organization (IMO) adopted the environmental provisions of the International Code for Ships Operating in Polar Waters (hereinafter Polar Code), the first binding bipolar IMO instrument. The Polar Code will replace existing nonmandatory guidelines for ships operating in Arctic and Antarctic waters and establish safety of navigation and pollution prevention requirements for polar shipping. Prompted by the increasing volume of ship traffic in the Arctic and the need to provide protection to ships, their crew, and the fragile Arctic and Antarctic environments, the Polar Code addresses all aspects of polar shipping, including ship design, construction, equipment, crew training, search and rescue, and environmental protection matters.
Structure of the Polar Code
Structurally, the Polar Code consists of four main parts:
- Part I-A: a mandatory safety part that includes 12 safety-related chapters;
- Part I-B: a recommendatory safety part that includes additional information and guidance to implement Part I-A;
- Part II-A: a mandatory environmental protection part that includes five pollution-prevention chapters; and
- Part II-B: a recommendatory environmental protection part that includes additional information and guidance to implement Part II-A.
The Polar Code is not a stand-alone document; rather it is intended to supplement and expand upon existing requirements that are provided in other IMO conventions currently in force, namely, the Safety of Life at Sea Convention (SOLAS), the International Convention for the Prevention of Pollution from Ships (MARPOL), and the International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers (STCW). In fact, under the IMO’s tacit amendment process, the Polar Code will enter into effect on January 1, 2017, through amendments to SOLAS, MARPOL, and STCW.
New pollution-prevention provisions included in the Polar Code
Notably, the five pollution-prevention chapters included in Part II-A of the Polar Code address the types of operational discharges from ships—oil, noxious liquid substances, sewage, and garbage—regulated under the first five annexes of MARPOL. These chapters provide enhanced protections to the polar marine ecosystem from the impacts of international shipping. Chief among the new provisions are:
- A ban on the discharge of oil and oily mixtures and noxious liquid substances from ships;
- A provision requiring certain ships operating in certain ice conditions to separate their oil fuel tanks from the outer hull of the ship;
- Enhanced regulations requiring ships to discharge sewage and garbage at a minimum distance away from any ice shelf or fast ice;
- A prohibition on the discharge of food wastes onto ice; and
- A prohibition on the discharge of cargo residues classified as harmful to the marine environment.
At the conclusion of the negotiations to develop the Polar Code, the newly adopted pollution-prevention provisions were viewed as a good start to address environmental concerns arising from the presence of international shipping in the magnetic poles. That said, throughout the negotiations, environmental organizations pressed to include additional environmental protection measures not presently regulated under MARPOL, including the regulation of black carbon (a climate-forcing agent) and grey water discharges. Furthermore, environmental groups also sought to extend an existing ban on the use and carriage of heavy fuel oil currently in place in the Antarctic to the Arctic region.
Safety provisions included in the Polar Code also benefit the polar environment
Ships operating in the inhospitable and remote polar environments face many adverse conditions that may endanger ships, including prevalent ice, harsh weather, and lack of surveyed areas. The safety provisions of the Polar Code, while intended primarily to reduce the probability of an incident or accident, will also enhance protection of the environment. Notable safety provisions in the Polar Code include: enhanced planning; increased crew training; technical requirements for the design, testing, and carriage of equipment to protect it against low temperatures and ice accretions typically associated with the poles; installation of additional navigational equipment to display ice conditions in the area of operation and detect ice in darkness; and enhanced voyage planning criteria that require a ship’s master to consider key ecological areas important for marine mammals and the location of nationally and internationally designated protected areas when planning a route.
Implementation of the Polar Code and a potential phase II
Given the fast-approaching January 1, 2017, effective date for the Polar Code, the IMO, its member States, industry, and environmental groups are focused on implementation of the Polar Code. At the same time, some entities, including environmental groups, have also started questioning whether states should commence a second phase of Polar Code negotiations that would focus on expanding the applicability of the code’s safety provisions to ships not generally regulated under SOLAS, such as fishing vessels and ships on domestic voyages. In the meantime, as traffic continues to increase in the magnetic poles, the IMO and its member states are hopeful that the Polar Code will provide an adequate level of maritime safety and pollution prevention to mitigate the risks associated with operating in Arctic and Antarctic waters.