The elephant in the room: article 234 of the Law of the Sea Convention and the Polar Code as an incompletely theorised agreement

Abstract

The International Maritime Organization’s (IMO) International Code for Ships Operating in Polar Waters (Polar Code) is a new chapter in the regulation of Arctic shipping. This international legal instrument can affect the interpretation and practice of national coastal State legislation under article 234, the Arctic exception in the United Nations Convention on the Law of the Sea. Relying on documents from the IMO, this paper examines the negotiation of the relationship of these two instruments, investigating the question: how was it possible to agree on the Polar Code while avoiding a resolution of the deep conflict between Arctic coastal State jurisdiction and freedom of navigation? While early debates directly concerned article 234, the peculiarity of later discussions, which focused on savings clauses regulating relationships between instruments, was the lack of reference to this article’s provisions. Agreement was possible due to indirect negotiation of this issue, through the use of second best arguments and analogies. It is submitted that precisely the lack of discussion and resolution of this issue allowed for the possibility of completing the Polar Code. This qualifies the Polar Code as an incompletely theorised agreement in deliberative theory.