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

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.