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Arctic Technopolitics and China’s Reception of the Polar Code

May 28, 2020 IMO

The International Code for Ships Operating in Polar Waters (Polar Code),1) which entered into force on January 1, 2017, constitutes a regulatory milestone for shipping in the Arctic.2) This article considers China’s actions within the International Maritime Organization (IMO) leading up to the Code’s entry into force in 2017, while also surveying how the Polar Code has been received in Chinese academic and industry circles. This inquiry takes place against the backdrop of, on the one hand, China’s emerging interests in the Arctic wherein shipping plays a central role; and on the other hand, the introduction of the Polar Code as an mandatory international law instrument in a region characterized by intersecting sets of regional, national, and international regulations.3)

As the world’s second-largest economy, with over 60 percent of its trade (in value) traveling by sea, China is obviously a major stakeholder in international shipping.4) It is the world’s third-largest shipowner in terms of vessel tonnage and also the world’s largest shipbuilder.5) Shipping also figures prominently in Beijing’s engagement with the Arctic. Most notably through the Polar Silk Road—the Arctic outgrowth of the Belt and Road Initiative (BRI)—which envisions the development of commercial shipping lanes across the Arctic Ocean. As an example, in 2013, the director of the Polar Research Institute of China (PRIC) made the optimistic prediction that between 5 and 15 percent of China’s international trade would use the Northern Sea Route (NSR) by 2020.6) However, commercial traffic in the Arctic is likely to only see modest growth this decade, with destinational shipping of hydrocarbons originating in the Arctic being the largest growth driver.7) Chinese shipbuilders also stand to benefit from Arctic shipping, notably the development of the NSR, as this would increase the demand for new, ice-capable vessels.8) Finally, the prospects of re-routing portions of its maritime trade through the Arctic bears security implications for China, as large shares of its westbound trade today transits the South China Sea.9) In the sections that follow, the notion of technopolitics, broadly defined as the “strategic practice of designing or using technology to enact political goals,”10) offers a heuristic frame for examining the political underpinnings, as well as ramifications, of international standard-setting, especially as they pertain to global geopolitics. The development of international standards provides participating states with what some have argued to be an ‘anti-political’ venue for leveraging technical know-how in order to inscribe national interests into ostensibly technical issues.11)

China’s Activities in the IMO

China participated in the initial correspondence group set up in 2009 by the IMO to develop the Polar Code.12) The public database of the IMO reflects China first addressing the Polar Code in 2012 at the 56th session of the Sub-Committee on Ship Design and Equipment (DE). Here, China suggested that governmental ships and “public service ships” should be excluded from the competency of the Polar Code.13) Prior to this session, however, China had expressed support for a proposal made by the United States to oppose a Russian proposal to include a savings clause in the Code’s preamble that would retain the primacy of national shipping regulations until the IMO could adopt a fully harmonized framework.14) The Chinese delegation also called for a clarification of what the Code termed “category C” ships.15) The comment by the Chinese delegation problematized that the definition included both ice-class and non-ice-class ships. It subsequently asked for these two types to be differentiated, either in the definition of the category itself, or in subsequent technical provisions.16)

China also commented on a draft chapter on environmental protection. It urged that a thorough differentiation be made between Antarctic and Arctic waters, emphasising that while the former is a designated special area under several of the International Convention for Prevention of Marine Pollution (MARPOL) annexes, the latter was not. The Chinese delegation went on to suggest that the “general control level for environmental issues” and the attendant technical requirements concerning Arctic waters should first be decided in a committee or sub-committee instead of “rushing into the development of specific requirements.”17) Furthermore, China sided with Greece and various other flag states and shipping NGOs in arguing that there was, at the time, insufficient scientific evidence to justify the draft requirements.18) In addition to these interventions, China produced four proposals of its own, all of which were submitted after the Polar Code had been adopted by the Maritime Security Committee (MSC) during its 94th session in 2014. The timing of these proposals is significant, as by 2014, much of the Code’s content had already been developed by the DE sub-committee, leaving little room for any meaningful change. Of China’s four proposals, two were co-sponsored together with South Korea. Of note was the proposal to ease the administrative burden on ships conducting single or occasional voyages in the Arctic during the summer navigational season by lessening the requirement for these vessels to hold Polar Certificates.19) The second co-sponsored proposal was submitted to the Marine Environment Protection Committee (MEPC), proposing an amendment to a draft of the Polar Code containing a loophole in the description of outer shell and cargo tank protection requirements of oil tankers and other vessels carrying oil.20) The two remaining, independently-produced proposals were both submitted to the Human Element, Training and Watchkeeping Sub-Committee (HTW).21)

The two co-sponsored proposals with South Korea reflect an alignment of interests between the two countries as major shipbuilding states and user states. Moreover, China’s comments and proposals, taken together, indicate the wish for a leaner, less restrictive Code. Yet the country’s activity during the development of the Polar Code is, perhaps, best characterized by its inactivity. This relative inactivity reflects, in part, the country’s general behavior in the IMO. The Chinese delegation to the IMO has been described as “quiet and not that active,” and China’s attitude towards international maritime governance has similarly been characterised as conservative and passive.22) Surveys of China’s submissions to the IMO show that the country has historically lagged behind most other major shipping states in terms of proposals.23) Moreover, China’s absence during the drafting process appears emblematic of the East Asian shipping states who all have expressed interest in Arctic shipping—but none of which made any substantial contributions to the Code’s development.24)

Low-Key Geopolitics

China’s low level of engagement with the Polar Code becomes more conspicuous, however, when one considers Beijing’s somewhat hubristic desire to go from a “rule-follower” to a “rule-maker” in the Arctic.25) In its 2018 Arctic White Paper (WP), China states that it, in general, “has played a constructive role in the formulation of Arctic-related international rules and the development of its governance system.”26) The WP goes on to note that China “will participate in regulating and managing the affairs and activities relating to the Arctic on the basis of rules and mechanisms,” including “relevant rules of the [IMO].”27) The Polar Code is mentioned only once in a paragraph introducing Beijing’s Polar Silk Road. Here, it mentions the Code as it re-emphasizes China’s support for the IMO by stating that the country “abides by the [Polar Code], and supports the [IMO] in playing an active role in formulating navigational rules for the Arctic.”28)

On this backdrop, China has arguably done very little to shape the future of Arctic shipping—despite it being a central component of its Arctic policy. The Code and the role of the IMO in governing regional shipping have, nevertheless, been well received as ordering forces that help smooth out the geographical hierarchy of Arctic and non-Arctic stakeholders. Moreover, observers have deemed the Code to be an important opportunity for China “to better understand and better grasp the rules of the game in Arctic affairs.”29) Most significantly, Chinese law scholars have summarized the entry into force of the Polar Code as a positive development in Arctic governance, exactly because it makes certain aspects of Arctic governance less regional—describing it as a “hardening of international law” in the region.30) Others have noted the “fragmented nature of Arctic governance” and the “geographical advantage of the Arctic states” as factors limiting China’s foray into the Arctic.31) On the former point, the criticism has been that the majority of competent governance bodies and instruments in the Arctic are regional and non-binding. Although more adaptable, these are perceived to be less effective when compared with hard law instruments and are “prone to be biased against China and other law-abiding states.”32)

To this end, the country’s shipbuilding experts have prescribed that China should work within the framework of international law to “strengthen [the Polar Code’s] uniformity and coherence, and prevent the regionalization of the behavior of individual Arctic states,” referring to Russia and Canada. They further argue that “already-certified ships [navigating the Arctic] should not be subject to the regulations of coastal states,” and that any obstruction of regular ship traffic would constitute “an interference with international law.”33) On this point, maritime law scholars have recommended that China “must use international law to ward against coastal states who might abuse their regulatory powers to disrupt Chinese maritime traffic.”34) Reflecting on this, the director of PRIC has called the Polar Code a “double-edged sword,” referring to the compromise between Arctic coastal states’ ability to regulate shipping in their exclusive economic zones and the sustainable regulation of polar shipping.35) Others have expressed hope that, following the entry into force of the Polar Code, “Russia’s administration of its NSR will gradually become more in line with international conventions.”36) These statements are marked by a concern over the potential interdiction by Arctic coastal states to the detriment of international maritime traffic in the region. From this perspective, then, the advent of the Polar Code supports Beijing’s vision of the Arctic as an international space by uniformly regulating shipping in the region and anchoring this authority in a specialized body under the UN.37) This would, at least in theory, give Beijing a bigger seat at the table to influence Arctic governance as amendments to the Code are negotiated by the IMO in the future.

Turbulent Technopolitics

Experts have emphasised the technological challenge posed by the Polar Code. The new regulatory regime has precipitated a new barrier of entry to polar shipping in the form of mandatory technical requirements for the construction and operation of polar-going vessels.38) In this context, the Polar Code provides compulsory technical standards “that present great challenges to the Chinese polar shipping industry”39) by constituting a “technological threshold”—at once underscoring the still-nascent state of China’s polar seafaring, and its position as a major user and shipbuilding state.40) Representatives from China’s shipbuilding sector have repeatedly called for greater engagement by domestic stakeholders and “actively take part in drawing up the Polar Code and boost its research on polar ship design and relevant regulations.”41) China’s Maritime Safety Administration have similarly urged the shipbuilding sector to pay closer attention to new developments and to “more actively promote national interests,”42) while others have called for the industry to “take a thorough inventory of its capabilities” in order to better argue its case in the drawing up of the Code.”43)

Academic and industry experts have shown to be particularly cognisant of the technopolitics that played out within the IMO as the Polar Code was being drafted. Law scholars have argued that “due to the IMO being a specialized agency, countries with the most advanced technology speak with the strongest voice (huayuquan),” and will “use the IMO as a platform to spread their own standards.”44) Others have argued that since “all international cooperation is based on national strength”—and seeing as shipping stands particularly prominent in the Arctic—China should make concerted efforts to improve its polar shipbuilding capabilities.45) The country’s shipbuilders have stressed China’s geographical context as a non-polar state as well: “By being a non-polar state, Chinese ships have to traverse large distances of open water before reaching the ice-infested waters of the polar regions.” Therefore, these ships “should not need to be able to operate in polar areas independently to the same extent as those of polar states,” and as its polar shipbuilding capabilities mature, “China should emphasize these conditions in the drawing up of the Polar Code.”46) Shipbuilders have also expressed worries over an eventual ban on the use and carriage of Heavy Fuel Oil (HFO), echoing China’s position during deliberations in the IMO, arguing that the Code “must strike a balance between commercial shipping and environmental protection and not simply adopt an outright ban.”47) Perhaps the clearest articulation of these technopolitical dynamics is the prescription that China should adhere to a “principle of moderation” when participating in the future work of the Polar Code: its delegation to the IMO ought to remain within the “category of technology (jishu de fanchou)”48)—seeing as the technical nature of the IMO negotiations provide China with room to further its interests without becoming embroiled in regional politics and issues of sovereignty. To this end, argue that China should use “technology” to circumvent “political principles (zhengzhi yuanze).” On matters not in China’s interest, it should adopt a “principle of procrastination (tuoyan de yuanze)” in order to buy more time.49)

Conclusion

Albeit only a cursory review, this look at China’s reception of the Polar Code reveals that, while having taken a back seat during its development, the Code is nevertheless recognized as a development favourable to Beijing’s interests in the region by anchoring the regulation of Arctic shipping in the IMO. Its development has partially been framed as a technopolitical competition, wherein technological competency can be leveraged for political gains. This accords in many ways with the observation that China, as a geographical outsider, must resort to being a “norm entrepreneur” as it attempts to grow its position in the Arctic.50) Paralleling this observation, Chinese International Relations scholars have explored the concept of “creative involvement” and identified the Polar Code as a “technological route” through which Beijing can gain a greater voice in Arctic affairs.51) Future studies should explore China’s activities in the IMO more in-depth than what this article has been able to do. They should also examine how industrial policy is being configured to meet the concerns outlined here. More generally, then, this article hopes to highlight how negotiations over technical issues can serve as fruitful venues for exploring broader, geopolitical contentions – articularly as they, in the case of Arctic shipping, gather both Arctic and non-Arctic states. The anti-political qualities of such processes can be productive for states and non-state actors who lack the geographical or political legitimacy to argue their cases in other forums. This sentiment was, perhaps, best captured by the title of an article in the trade publication China Ship News: when it comes to emerging maritime regulations, “asking questions beats answering them.”52)

Source: https://www.thearcticinstitute.org/arctic-technopolitics-china-reception-polar-code/