The Case for a Strong Polar Code
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The case for a strong Polar Code The case for a strong Polar Code By John Kaltenstein For more information, contact: John Kaltenstein Marine Program Manager Friends of the Earth 311 California St., Suite 510 San Francisco, CA 94104 [email protected] (415) 544-0790 x221 Acknowledgments Layla Hughes and Renee Dopplick , World Wildlife Fund; David Marshall, Clean Air Task Force Report funded by the J.M. Kaplan Fund www.jmkfund.org The views expressed in this report are those of Friends of the Earth and do not necessarily represent those of indi- vidual contributors to Friends of the Earth or the funding organizations. December 2011 The case for a strong Polar Code 1 I. Introduction til 2002 that the IMO approved voluntary guidance for Arctic shipping.5 By 2010, at the urging of Antarctic The International Maritime Organization (IMO) — Treaty members, the IMO finally included the South- a United Nations specialized body charged with craft- ern Ocean in the voluntary scheme.6 Nevertheless, even ing global standards for international shipping — has before the polar shipping guidelines were finalized, undertaken the development of a suite of mandatory IMO member states were pressing for a mandatory set environmental and safety rules, or “Polar Code,” for of rules for the Polar Regions,7 and in 2009 the Organi- Arctic and Antarctic shipping. This report asserts that zation’s Maritime Safety Committee tasked the Design the shipping industry and IMO member nations with and Equipment Subcommittee with coordinating de- an interest in Arctic shipping should support the enact- velopment of a mandatory Polar Code.8 ment of a Polar Code with strong safety and environ- mental provisions. Namely, the Code should, inter alia, Despite similar ecological features and vulnerabilities, 1) contain stringent ice strengthening requirements for Antarctic waters currently enjoy a plethora of environ- vessels plying polar waters; and 2) prohibit the use of mental protections not granted to the Arctic Ocean and heavy fuel oil by vessels operating in Arctic waters.2 A its peripheral seas. For example, the IMO designated robust Code would serve to harmonize polar shipping the waters south of 60 degrees south latitude as an 9 10 rules; aid investment decision-making pertaining to Antarctic Special Area under MARPOL 73/78 for 11 12 Arctic shipping; ensure environmental protection and Annex I (oil), Annex II (noxious liquids) and An- 13 foster sustainable development in the region; and avoid nex V (garbage). In addition, a recent amendment to the likely overhaul of the Code in the event of a major 3 oil spill. 5 Guidelines for Ships Operating in Arctic Ice-Covered Waters, MSC/. Circ 1056 MEPC/Circ 399 (23 December 2002). 6 Guidelines for Ships Operating in Polar Waters, Resolution A.1024(26) II. Polar Code background and (18 January 2010). environmental regulatory gaps for Arctic 7 See MEPC 59/20/1 and MSC 86/23/9 by Denmark, Norway, and the United States. shipping 8 See MSC 86/26, Report of the Maritime Safety Committee on its Eighty-Sixth Session, by the Secretariat. 9 Special Areas are certain waters that require, for technical reasons relat- The development of specialized rules for polar ship- ing to their oceanographical and ecological condition and to their sea 4 traffic, the adoption of special mandatory methods for the prevention ping began in the early 1990s. However, it was not un- of sea pollution. Available at http://www.imo.org/OurWork/Environ- ment/PollutionPrevention/SpecialAreasUnderMARPOL/Pages/De- fault.aspx. 1 This report was prepared primarily by Friends of the Earth U.S., with 10 International Convention for the Prevention of Pollution from Ships, contributions from World Wildlife Fund U.S. and the Clean Air Task 1973 as modified by the Protocol of 1978, entered into force on Oct. 2, Force. 1983 [hereinafter MARPOL]. The MARPOL Convention contains six 2 A ban on use and carriage of heavy-grade oil already applies to Antarctic annexes pertaining to vessel waste streams. The three annexes not men- waters. See infra note 14. tioned in the text include: harmful substances in packaged form (Annex 3 In this report, use of the term “oil spill” not only refers to spills from oil III), sewage (Annex IV), and air emissions (Annex VI). cargo but also from fuel oil, such as heavy fuel oil, stored in bunker tanks 11 MARPOL Annex I, Regulation 15(b)(4), entered into force on Oct. 2, aboard vessels. 1983. 4 L. Brigham, The emerging International Polar Navigation Code: bi-polar 12 MARPOL Annex II, Regulation 13(8), entered into force on Oct. 2, relevance, 248, in Protecting the Polar Marine Environment: Law and 1983. Policy for Pollution Prevention, D. Vidas (ed.), Cambridge Univ. Press, 13 MARPOL Annex V, Regulation 5(2), entered into force on Dec. 31, Cambridge, U.K., 2000. 1988. Friends of the Earth • www.foe.org 3 MARPOL Annex I now prohibits the carriage and use IV. Arctic shipping lanes are opening up of heavy fuel oils in Antarctic waters.14 Moreover, the and increasing risk of accidents and spills Antarctic Treaty System environmental standards (e.g., Protocol on Environmental Protection to the Antarctic The disappearance of large amounts of sea ice in sum- Treaty) for vessel wastewater and garbage (including mer has opened up shipping lanes in the Arctic. The food waste) discharge exceed those for the Arctic re- legendary Northern Sea Route23 along the Russian gion.15 The Polar Code, thus, presents an excellent op- Arctic and the Northwest Passage24 through the Cana- portunity to establish comparable environmental rules dian Arctic were both open for the first time in 2008,25 with respect to shipping in the Antarctic and Arctic and have been seasonally clear, on occasion, since then. Oceans. Sailing distances between Europe and Asia can be con- siderably less when using an Arctic route as opposed to III. Loss of Arctic sea ice 26 traditional routes. A voyage along the NSR between Yokohama, Japan and Rotterdam, Netherlands is 40 The effects of climate change are nowhere more -ap 27 percent shorter than transiting through Suez Canal. parent than in the Arctic. Temperatures in the region And, likewise, a voyage from Seattle, Washington to have risen at almost twice the rate of the rest of the 16 Europe through the Northwest Passage would be 25 world, and may climb another four to seven degrees 28 percent shorter than one using the Panama Canal. Celsius during this century.17 Warming is responsible 2 for the alarming loss of about 37,500 km of sea ice [hereinafter AMSA]; R. Lindsay & J. Zhang, The Thinning of Arctic Sea Ice, 1988–2003: Have We Passed a Tipping Point?, 18 J. of Climate every year — an area the size of West Virginia in the 4879 (2005); Associated Press, Arctic is Seeing Thinner Sea Ice, Experts 18 United States. Further, the lowest Arctic summer sea Warn, MSNBC.COM, April 6, 2009, available at http://www.msnbc. msn.com/id/30074699/ (finding that 90 percent of Arctic sea ice is only ice measurements since 1979 (the advent of satellite re- one to two years old); “The average ice thickness in parts of the central cordings), and likely much beyond that, have occurred Arctic Ocean has decreased from 3.1 meters to 1.8 meters since 1976.” 19 Focus North, The Environment and Marine Transport, by OceanFutures between 2007 and 2011. And sea ice cover in 2011 for the Norwegian Atlantic Committee, No. 4, 2006. nearly eclipsed the record low experienced in 2007 (4.16 23 Russia defines the Northern Sea Route as spanning the northern point 2 20 2 of Novaya Zemlya and its straits in the west to the Bering Strait in the million km ), and was more than 2.5 million km be- east. Since it is not one single sailing channel, its length varies from low the 1979 to 2000 average. Arctic sea ice thickness 2,200 to 2,900 miles. D. Brubaker, Regulation of navigation and vessel- 21 22 source pollution in the Northern Sea Route: Article 234 and state practice, and multi-year ice extent also are declining. 221, in Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention, D. Vidas (ed.), University of Cambridge Press, 14 MARPOL Annex I, Regulation 43. Cambridge, U.K. (2000). The Northeast Passage encompasses the 15 Protocol on Environmental Protection to the Antarctic Treaty, Annex Northern Sea Route and extends through the Barents Sea and Norwe- IV, Arts. 5, 6 (1991), entered into force on Jan. 14, 1998. gian Sea to connect the Pacific and Atlantic Oceans. 16 Intergovernmental Panel on Climate Change, Observations: Surface and 24 The Northwest Passage comprises five recognized routes, with varia- Atmospheric Climate Change, in Climate Change 2007: The Physical Sci- tions, between the Atlantic and Pacific Oceans through the Canadian ence Basis, Contribution of Working Group I to the Fourth Assessment Report, Arctic Archipelago. AMSA, supra note 22, at 20. 237 (2007), available at http://www.ipcc.ch/pdf/assessment-report/ar4/ 25 A. Revkin, Arctic Ice Hints at Warming, Specialists Say, NY TIMES, wg1/ar4-wg1-chapter3.pdf. September 6, 2008, available at http://www.nytimes.com/2008/09/07/ 17 Arctic Climate Impact Assessment, Impacts of a Warming Arctic, 10, 12 science/earth/07arctic.html?_r=4&scp=2&sq=northwest%20 (2004), available at http://amap.no/acia/. passage&st=cse&oref=slogin. 18 From 1979-2006, there was an average decline of 23,328 square miles in 26 U.S. Coast Guard, “Distance” and “Depth and Width” worksheet, from the extent of summer sea ice cover each year. See 73 Fed.