Bunker fuels, MARPOL and IMO (1st advice)

Legal assistance paper

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Date produced: 02/12/2011

1. Can MARPOL 73/78 be amended by a decision of the governing body of the treaty so as to include either a cap and trade system for shipping emissions or a bunker fuel levy?

2. If not, can this be done by adopting a new annex (in such a way that does not require ratification)?

3. If not, can this be done by either ratifying new annexes and/or amending the treaty itself? Would the inclusion of either system be (legally) inappropriate given the current scope of the MARPOL regime?

4. If none of the above options is possible, is there a way to incorporate either regime within the IMO without creating a new legally binding instrument?

1. No. MARPOL is a technical treaty that regulates emissions, operational discharges, etc. It cannot include provisions of a financial kind. If parties to MARPOL decide to make such amendments (since this treaty has no “governing body”) they would be altering the basic legal framework of the treaty to the point of reformulating it in a way entirely different from the main purposes and objective of the treaty.

2. No, the addition of an annex with financial obligations would imply the need to reformulate the entire treaty. Annexes to MARPOL should be read together with the main treaty provisions contained in the articles of the convention.

3. See advice to question 2 (above): MARPOL is not a treaty to introduce financial regulations. As a basic bona fide principle, amendments to treaties should be done within the basic legal framework of the treaty. They should not alter the original purposes and objectives of the treaty as would happen if financial regulations were to be included in a treaty not fit for these purposes. There is no way of playing political games in order to try to introduce through the back door provisions which do not conform to the basic scope of MARPOL.

4. I do not think so. Countries should consider adopting a new treaty, adopt it and then ratify it. We should not forget that the IMO is at present discussing market-based initiatives and will have an important meeting on this in February.