The elephant in the room: article 234 of the Law of the Sea Convention and the Polar Code as an incompletely theorised agreement
This is an Accepted Manuscript of an article published by Taylor & Francis in The Polar Journal on 31 July 2018, available online: http://www.tandfonline.com/10.1080/2154896X.2018.1468627 . The International Maritime Organization’s (IMO) International Code for Ships Operating in Polar Waters (Po...
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ftunivtroemsoe:oai:munin.uit.no:10037/14641 2023-05-15T14:28:02+02:00 The elephant in the room: article 234 of the Law of the Sea Convention and the Polar Code as an incompletely theorised agreement Bognar, Dorottya 2018-07-31 https://hdl.handle.net/10037/14641 https://doi.org/10.1080/2154896X.2018.1468627 eng eng Taylor & Francis The final version of this paper is part of: Bognar-Lahr, D. (2019). 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. (Doctoral thesis). https://hdl.handle.net/10037/16096. The Polar Journal info:eu-repo/grantAgreement/RCN/NORRUSS/220636/Norway/Arctic Shipping through Challenging Waters// 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. The Polar Journal, 8 (1), 182-203. https://doi.org/10.1080/2154896X.2018.1468627 FRIDAID 1607087 doi:10.1080/2154896X.2018.1468627 2154-896X 2154-8978 https://hdl.handle.net/10037/14641 openAccess VDP::Social science: 200::Political science and organizational theory: 240 VDP::Samfunnsvitenskap: 200::Statsvitenskap og organisasjonsteori: 240 Polar Code law of the sea Arctic shipping decision-making negotiation process VDP::Social science: 200::Law: 340 VDP::Samfunnsvitenskap: 200::Rettsvitenskap: 340 Journal article Tidsskriftartikkel Peer reviewed 2018 ftunivtroemsoe https://doi.org/10.1080/2154896X.2018.1468627 2021-06-25T17:56:19Z This is an Accepted Manuscript of an article published by Taylor & Francis in The Polar Journal on 31 July 2018, available online: http://www.tandfonline.com/10.1080/2154896X.2018.1468627 . 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. Article in Journal/Newspaper Arctic Arctic Law of the Sea The Polar Journal University of Tromsø: Munin Open Research Archive Arctic The Polar Journal 8 1 182 203 |
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Open Polar |
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University of Tromsø: Munin Open Research Archive |
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ftunivtroemsoe |
language |
English |
topic |
VDP::Social science: 200::Political science and organizational theory: 240 VDP::Samfunnsvitenskap: 200::Statsvitenskap og organisasjonsteori: 240 Polar Code law of the sea Arctic shipping decision-making negotiation process VDP::Social science: 200::Law: 340 VDP::Samfunnsvitenskap: 200::Rettsvitenskap: 340 |
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VDP::Social science: 200::Political science and organizational theory: 240 VDP::Samfunnsvitenskap: 200::Statsvitenskap og organisasjonsteori: 240 Polar Code law of the sea Arctic shipping decision-making negotiation process VDP::Social science: 200::Law: 340 VDP::Samfunnsvitenskap: 200::Rettsvitenskap: 340 Bognar, Dorottya The elephant in the room: article 234 of the Law of the Sea Convention and the Polar Code as an incompletely theorised agreement |
topic_facet |
VDP::Social science: 200::Political science and organizational theory: 240 VDP::Samfunnsvitenskap: 200::Statsvitenskap og organisasjonsteori: 240 Polar Code law of the sea Arctic shipping decision-making negotiation process VDP::Social science: 200::Law: 340 VDP::Samfunnsvitenskap: 200::Rettsvitenskap: 340 |
description |
This is an Accepted Manuscript of an article published by Taylor & Francis in The Polar Journal on 31 July 2018, available online: http://www.tandfonline.com/10.1080/2154896X.2018.1468627 . 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. |
format |
Article in Journal/Newspaper |
author |
Bognar, Dorottya |
author_facet |
Bognar, Dorottya |
author_sort |
Bognar, Dorottya |
title |
The elephant in the room: article 234 of the Law of the Sea Convention and the Polar Code as an incompletely theorised agreement |
title_short |
The elephant in the room: article 234 of the Law of the Sea Convention and the Polar Code as an incompletely theorised agreement |
title_full |
The elephant in the room: article 234 of the Law of the Sea Convention and the Polar Code as an incompletely theorised agreement |
title_fullStr |
The elephant in the room: article 234 of the Law of the Sea Convention and the Polar Code as an incompletely theorised agreement |
title_full_unstemmed |
The elephant in the room: article 234 of the Law of the Sea Convention and the Polar Code as an incompletely theorised agreement |
title_sort |
elephant in the room: article 234 of the law of the sea convention and the polar code as an incompletely theorised agreement |
publisher |
Taylor & Francis |
publishDate |
2018 |
url |
https://hdl.handle.net/10037/14641 https://doi.org/10.1080/2154896X.2018.1468627 |
geographic |
Arctic |
geographic_facet |
Arctic |
genre |
Arctic Arctic Law of the Sea The Polar Journal |
genre_facet |
Arctic Arctic Law of the Sea The Polar Journal |
op_relation |
The final version of this paper is part of: Bognar-Lahr, D. (2019). 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. (Doctoral thesis). https://hdl.handle.net/10037/16096. The Polar Journal info:eu-repo/grantAgreement/RCN/NORRUSS/220636/Norway/Arctic Shipping through Challenging Waters// 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. The Polar Journal, 8 (1), 182-203. https://doi.org/10.1080/2154896X.2018.1468627 FRIDAID 1607087 doi:10.1080/2154896X.2018.1468627 2154-896X 2154-8978 https://hdl.handle.net/10037/14641 |
op_rights |
openAccess |
op_doi |
https://doi.org/10.1080/2154896X.2018.1468627 |
container_title |
The Polar Journal |
container_volume |
8 |
container_issue |
1 |
container_start_page |
182 |
op_container_end_page |
203 |
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1766302165626781696 |