Michael Kingston* on how the Arctic Shipping Best Practices Information Forum will assist in the harmonised implementation of The Polar Code
The Polar Code applied to newbuild vessels from January 2017 and will apply to existing vessels from January 2018. A historical problem with IMO conventions is that after ‘adoption’ by national delegations they require parliamentary ratification by a certain threshold of countries before they enter into force.
Some unratified conventions, even from the 1970s, are still lying on government shelves. To avoid this happening again, the Polar Code, which is aimed at enhancing maritime safety, training and environmental protection in the polar regions, has come into force by way of amendments to the three cornerstone IMO conventions, namely: the International Convention for the Safety of Life at Sea (SOLAS); the International Convention for the Prevention of Pollution (Marpol); and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW).
These conventions include the ‘tacit acceptance procedure,’ which allows IMO delegates to agree amendments that will automatically become law 12 months after a period of six months from adoption – unless in that six-month period not less than 50% of the gross tonnage of the world's merchant shipping have notified their objections. This has never happened.
Initially it was the intention that such significant international regulation would need a standalone convention, but then it was thought that it may take years to ratify, hence the use of the tacit acceptance procedure to the existing conventions. The IMO Secretariat and delegations deserve huge credit for their work in adopting this approach.
The Polar Code is comprised of two parts that include mandatory and recommendatory sections that take into account the unique risks associated with operating in the polar regions including ice; low temperatures; high latitude; remoteness; severe weather; limited charting; the pristine environment; and lack of training.
Part I addresses safe design, construction and operation of vessels. It enters into force under SOLAS. It also describes the enhanced training and certification requirements for crew members working on polar ships, the provisions of which enter into force under STCW.
Part II addresses environmental protection with significant requirements for pollution prevention and the way garbage and sewage is dealt with. It enters into force under Marpol.
The Code principally applies above 60 degrees north and below 60 degrees south. To operate it is now necessary to have a Polar Ship Certificate and to carry a Polar Waters Operational Manual detailing how the ship and crew will deal with the conditions in accordance with the additional SOLAS, STCW and Marpol requirements. The Polar Code is built on top of these existing IMO conventions, so port state control will be able to leverage existing compliance and enforcement capabilities.
It is all very well having rules, but implementation is key. It is of paramount importance that decision-makers have a common understanding of these rules in order to ensure robust application. Operators, flag states, insurers, financial institutions and port state control need to understand the requirements.
This includes developing a thorough understanding of the operating environment so that all parties involved have a better understanding of the industry standards and the best information available to ensure best practices are used. The reality at the moment is a lack of understanding, so a major effort is required to help in this process.
Under US leadership, the Arctic Council of States (comprised of the US, Canada, Russia, Norway, Sweden, Denmark, Finland and Iceland), a significant international body, endeavored to assist in this process by establishing the ‘Arctic Shipping Best Practices Information Forum’ (the Forum) in 2017, with input from the Antarctic States and IMO. The Forum was declared in Fairbanks, Alaska, on 11 May 2017 and met in London in June 2017.
The Forum aims to identify all the best information in existence on a cross-jurisdictional basis in hydrography; meteorology; ice data; crew training; search and rescue logistics; communication; recommended industry guidelines; traditional and local knowledge; ecological knowledge; and operational understanding of ship equipment, systems and structure, to assist in properly preparing a Polar Waters Operational Manual so that only then will a Polar Ship Certificate be issued. This information will be hosted on a web portal run by the Arctic Council, which will be launched in 2018 either at the International Conference on Harmonized Implementation of the Polar Code - Experiences after One Year’s Enforcement” in Helsinki on 22 February 2018, or at the next Forum in London in May 2018.
The Polar Code and the Arctic States’ Forum to assist in its implementation are examples of what we can achieve in international regulation before a significant disaster occurs, demonstrating a pro-active approach where industry, governments, the research community, indigenous communities, NGOs and international regulators have worked together to make a significant difference. Indeed, IMO cited it as an example for regulatory implementation elsewhere in the world when the Arctic States, under Finnish leadership, presented at IMO MSC98 in June 2017.
Given the effort taken to amend three conventions to implement it, we are very fortunate to have made such progress. It is incumbent on us to use the rules to protect seafarers and the environment, and for all stakeholders to contribute to the Forum to make this happen.
It is clear that prevention is better than cure.
*Michael Kingston, a London-based Irish lawyer, is working with the Arctic Council on the Arctic Shipping Best Practices Information Forum. For further information, please email firstname.lastname@example.org