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Hastings Law Journal

Authors

Luke A. Sanders

Abstract

The Arctic ice cap is melting. As the ice recedes, shipping lanes are opening that present shorter transport routes across the top of the globe. Industry analysts predict an Arctic shipping boom in coming years. In response, the International Maritime Organization (IMO) implemented a Polar Code (the “Polar Code” or the “Code”) to place heightened environmental and safety requirements on ships traversing the Arctic and Antarctic regions. These rules are binding on the United States, and the U.S. Coast Guard published the rulemaking for Polar Ship requirements. However, the rules have multiple shortcomings and loopholes. At the IMO, conversations have begun regarding how a “Polar Code Phase II” could be instituted to help further mitigate risk.

Meanwhile, the United States is unprepared for the coming Arctic surge. Although the gateway to these new routes runs through the Bering Sea, largely in U.S.-controlled waters, the nation lacks the ice-capable ships and northern infrastructure to facilitate safe navigation. Conversely, Russia is investing heavily in its Arctic fleet and building the infrastructure to support them. It has implemented restrictions and imposed harsh tariffs on vessels transiting this “Northern Sea Route.” While these actions run counter to the U.S. Freedom of Navigation policy (and possibly international law), the United States lacks the Arctic presence to influence its neighbor to ease restrictions on these future shipping lanes.

This Note examines how stricter U.S. regulation of Arctic shipping can lead to a greater physical presence and peaceful assertion of American geopolitical will. A Coast Guard-led rulemaking based on the proposals for Polar Code Phase II, which fills the aforementioned gaps in the current regulatory scheme, would provide increased protections for the Arctic environment. This Note predicts how this regulatory effort could set in motion a chain of events with beneficial impacts on trade, the Coast Guard, and American foreign policy goals. New rules could serve as a proof-of-concept for the IMO and incentivize the use of Arctic shipping lanes by lowering assessed risk and reducing insurance costs. The resulting shipping increase should create a natural need for more Coast Guard assets to ensure safe and secure navigation. Finally, this Note will assess how the combined presence of Coast Guard assets and multinational shippers, eager for free navigation, could place pressure on Russia to loosen its restrictions on the Northern Sea Route.

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