Bunker fuels, MARPOL and IMO (2nd advice)

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 03/12/2011

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. Carbon emissions cause “pollution of the marine environment” within the terms of Article 1 of MARPOL and of the 1982 UNCLOS.  Exhaust smoke is an “emission” of a “harmful substance or effluent” within the terms of Article 2 of MARPOL. That is obviously the case since air pollution from ships is already regulated by annex VI of MARPOL. Air pollution emissions are therefore within the scope of the Convention as set out in Article 1.

A cap and trade scheme or a levy would appear to be intended to prevent, reduce or control pollution of the marine environment. In principle they both fall within the scope of MARPOL. Either scheme could in theory be introduced by a decision of the parties amending Annex VI. However, the complexity of such schemes probably points towards the adoption of a new Annex or a separate treaty – there would have to be management institutions, the rules might apply directly to shipping companies, there would have to be a non-compliance mechanism. It is probably not sensible to do all this via an amendment to Annex VI.

2. New annexes always require ratification: Article 16 (5).

3. Yes, in theory, either way (ratifying new annexes or amending the treaty itself)  is possible.

The inclusion of either system would not be inappropriate, but adopting a new convention might be easier . For examples see Bunker Fuels and Ballast Water; both have easier entry into force requirements than MARPOL, which was the main reason for having them as separate treaties rather than annexes to MARPOL.

4. Industry scheme may be an option, at least one British shipping industry group has suggested one.