Navigating between freedom of navigation and coastal State jurisdiction: An analysis of Russia’s participation in the negotiation of the IMO’s mandatory Polar Code, 2009-2015, from a deliberative theory framework

Bognar-Lahr, Dorottya

dc.contributor.advisor	Hernes, Hans-Kristian
dc.contributor.author	Bognar-Lahr, Dorottya
dc.date.accessioned	2019-09-06T06:30:43Z
dc.date.available	2019-09-06T06:30:43Z
dc.date.issued	2019-09-26
dc.description.abstract	As a response to the increase in human activity reliant on navigation in polar areas and concomitant challenges and risks, the International Maritime Organization (IMO) developed mandatory regulations in the form of the International Code for Ships Operating in Polar Waters (Polar Code). The Polar Code aims to enhance ship safety and environmental protection in Arctic and Antarctic waters. In so doing, it potentially affects the balance set in the United Nations Convention on the Law of the Sea between the two defining principles of the law of the sea: freedom of navigation and coastal State jurisdiction. The Polar Code could both influence that balance and be influenced by interested States. The research in this thesis adds to our understanding of how the international community navigates between such deeply rooted principles, especially in technical international organisations such as the IMO, largely by placing one key actor in its research focus – the Russian Federation. Based on deliberative theory and analysing the IMO’s documentary material, this thesis examines Russia’s contribution to the IMO’s international regulatory process vis-à-vis national areas of interest. This research shows Russia being pulled between the two competing principles and mostly following its self-interest instead of utilising its experience in Arctic shipping to the benefit of international community. In so doing, Russia is contrasted with Canada, another State with major material and jurisdictional stakes in the field of Arctic navigation. Finally, this thesis shows how actors, when creating international regulations, deal with the conflict of the defining principles of the law of the sea by avoiding direct debate on them. At the same time, these principles still affect the IMO’s decision-making process in different ways, which in turn opens the possibility to incremental changes in the interpretation of the international law of the sea.	en_US
dc.description.doctoraltype	ph.d.	en_US
dc.description.popularabstract	The increase in human activity in polar areas, which largely relies on navigation, comes with unique challenges due to remoteness and harsh environmental conditions. At the same time, navigation poses risks to the fragile polar environment in the form of accidental pollution and pollution resulting from everyday ship operation. To provide a remedy, the International Maritime Organization (IMO) has developed the International Code for Ships Operating in Polar Waters (Polar Code), a new set of mandatory regulations that aims to enhance ship safety and environmental protection in Arctic and Antarctic waters. While the Polar Code could influence how parts of the pre-existing international legal framework are interpreted and where to place the international law of the sea’s balance between its defining but competing principles – freedom of navigation and coastal State jurisdiction – the negotiation of a new instrument is open to manoeuvring of interested States. The research topic of this doctoral thesis is the negotiation of the Polar Code between 2009 and 2015, placing one key Arctic actor in its focus: the Russian Federation. Russia is the largest Arctic coastal State, has more navigable waters than north of the American continent, and has vast experience in Arctic shipping. While Russia is professedly interested in encouraging trans-Arctic navigation and, as a result, has reformed its legislation to be more in line with international law, it still sees the waters of the Northern Sea Route (NSR) as its national waterways which it fully intends to utilise to exploit its share of Arctic resources, and over which it exercises unilateral jurisdiction according to the UN Convention on the Law of the Sea. To better understand Russia in international regulatory processes vis-à-vis national areas of interest in the field of Arctic shipping was one of the main aims of this research. This thesis utilises a theoretical framework built on deliberative theory and its dichotomy between deliberation – the exchange of reasoned arguments with the aim of reaching a common good – and bargaining – an exchange of demands in order to achieve one’s self-interest. The theoretical framework is more complicated, on the one hand, by the acknowledgement that national interests that do not clash with the goals set out for the Polar Code can legitimately be expressed and may contribute to realising the interest of the international community. On the other hand, silence on deep-seated principles contributes to reaching an agreement through textual creativity and ambiguity. In order to tease out these issues, the research in this thesis is mainly built on documentary material collected from the IMO, while it utilises descriptive argumentation analysis to identify the arguments of the negotiation participants and the value-description-prescription triad to evaluate those arguments. The findings of this research can be grouped into two areas. First, Russia is shown to be pulled between the two competing principles of the law of the sea. It emphasised coastal State jurisdiction in relation to the UN Convention on the Law of the Sea, emphasising its rights to introduce unilateral regulations for Arctic shipping in its water above the Polar Code, while it tended towards freedom of navigation inasmuch as it tried to provide least environmental restrictions for ships that serve its economic and resource utilisation projects. Russia’s approach directly conflicted with the environmental protection element of the common good as set out for the Polar Code, while it did not particularly utilise its experience to the benefit of the international community on safety matters. Russia’s participation can be characterised by its pragmatic emphasis of issue areas where its interests could be negatively affected and where other actors escape such a negative impact on account of their lower stakes in the Arctic. Russia is shown to misunderstand the IMO’s Polar Code process and the “rules of the game” and is contrasted in its contribution and leadership with Canada, another State with major material and jurisdictional stakes in the field of Arctic navigation. The present doctoral thesis contributes to our understanding of Russia with regard to international decision-making in the field of Arctic shipping and its regulation, whereas previous research has concentrated largely on what has been happening with regard to Arctic shipping in Russia on the ground, in policy and law-making. The second set of findings of this research concerns the role of deep-seated principles in the decision-making of technical international organisations such as the IMO. It is shown that States prefer to avoid discussion of such conflicting principles, preferring instead textual ambiguity which leaves room to manoeuvre as to interpretation. At the same time, the negotiation of the Polar Code could not entirely avoid the impact of these principles, which affected the substantive content of the proposals as well as the arguments brought to justify positions, particularly in debates about how to regulate the relationship between the Polar Code and UN Convention on the Law of the Sea. This research argues that the avoidance of a resolution to the conflict of principles is not in fact unique to technical international organisations but can be found in the law of the sea in general. At the same time, while not providing an overall solution, technical-level regulations may incrementally change the interpretation of certain provisions of international law. Through this interdisciplinary discussion, this thesis brings together the law of the sea and deliberative theory and suggests new ways the law of the sea may be looked at, interpreted and understood.	en_US
dc.description.sponsorship	Fram Centre; Research Council of Norway (grant number 220636)	en_US
dc.identifier.uri	https://hdl.handle.net/10037/16096
dc.language.iso	eng	en_US
dc.publisher	UiT Norges arktiske universitet	en_US
dc.publisher	UiT The Arctic University of Norway	en_US
dc.relation.haspart	Paper I: Bognar, D. (2016). Russian Proposals on the Polar Code: Contributing to Common Rules or Furthering State Interests? <i>Arctic Review on Law and Politics, 7</i>(2), 111-135. Also available in Munin at <a href= https://hdl.handle.net/10037/10344> https://hdl.handle.net/10037/10344. </a><p> <p>Paper II: Bognar, D. (2018). Russia and the Polar Marine Environment: The Negotiation of the Environmental Protection Measures of the Mandatory Polar Code. <i>Review of European, Comparative & International Environmental Law, 27</i>(1), 35-44. The paper is available in the file “thesis_entire.pdf”. Also available at <a href= https://doi.org/10.1111/reel.12233> https://doi.org/10.1111/reel.12233. </a><p> <p>Paper III: Bognar, D. (2018). The Elephant in the Room: Article 234 of the Law of the Sea Convention and the Polar Code as an Incompletely Theorised Agreement. <i>The Polar Journal, 8</i>,(1), 182-203. The paper is available in the file “thesis_entire.pdf”. Also available at <a href=https://doi.org/10.1080/2154896X.2018.1468627>https://doi.org/10.1080/2154896X.2018.1468627. </a> Accepted manuscript version is available in Munin at <a href=https://hdl.handle.net/10037/14641>https://hdl.handle.net/10037/14641. </a><p> <p>Paper IV: Bognar, D. In the Same Boat? A Comparative Analysis of the Approaches of Russia and Canada in the Negotiation of the IMO’s Mandatory Polar Code. (Submitted manuscript). Now published in <i>Ocean Development and International Law, 2019, 51</i>(2), 143-161, available at <a href=https://doi.org/10.1080/00908320.2019.1680491>https://doi.org/10.1080/00908320.2019.1680491</a>. Accepted manuscript available in Munin at <a href=https://hdl.handle.net/10037/18003>https://hdl.handle.net/10037/18003</a>.	en_US
dc.rights.accessRights	openAccess	en_US
dc.rights.holder	Copyright 2019 The Author(s)
dc.rights.uri	https://creativecommons.org/licenses/by-nc-sa/4.0	en_US
dc.rights	Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0)	en_US
dc.subject	VDP::Social science: 200::Political science and organizational theory: 240::International politics: 243	en_US
dc.subject	VDP::Samfunnsvitenskap: 200::Statsvitenskap og organisasjonsteori: 240::Internasjonal politikk: 243	en_US
dc.subject	Arctic shipping	en_US
dc.subject	international decision-making	en_US
dc.subject	law of the sea	en_US
dc.subject	arguing and bargaining	en_US
dc.title	Navigating between freedom of navigation and coastal State jurisdiction: An analysis of Russia’s participation in the negotiation of the IMO’s mandatory Polar Code, 2009-2015, from a deliberative theory framework	en_US
dc.type	Doctoral thesis	en_US
dc.type	Doktorgradsavhandling	en_US