Bunkers and COP decisions

Legal assistance paper

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Date produced: 04/06/2010

To what extent does a decision of the COP to support bunker finance determine the future course of action in IMO and ICAO?

Summary:

COP decisions have the potential to influence  the IMO and ICAO for a number of reasons, however, they do not bind the IMO or ICAO to any particular course of action.  The overlap between the parties to the COP and the IMO and ICAO means that agreement on any subject in one forum ought, as a matter of practice, to influence the others.  This practical aspect is reinforced by a number of treaty provisions such as, for example, (i) Article 2.2 of the Kyoto Protocol exhorting parties to “work through” the IMO and ICAO in addressing bunker fuel emissions, and (ii) Article 1 (d) of the Convention on the IMO providing that one of the purposes of the IMO is to consider any shipping matters referred to it by the UN. The detail of how to translate a COP decision into effect in the IMO and ICAO will be  dealt with under the relevant IMO and ICAO decision making procedures.  Disputes regarding the implementation of such COP decisions by the IMO and ICAO will be dealt with in the context of those bodies’ decision making procedures and the majority view will prevail. Given the overlap between the parties, consistency of  action across different institutions may be expected, but is not guaranteed.  The means to hold the parties to account for perceived inconsistency are by way of political and public scrutiny rather than legal.

Advice:

Article 2.2 of the Kyoto Protocol states that.. “the Parties included in Annex I shall pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation and marine bunker fuels,working through the International Civil Aviation Organization and the International Maritime Organization, respectively.”

This gives parties to the Kyoto Protocol the scope to set the agenda for the IMO and ICAO by reference to UNFCCC principles, but it leaves a broad discretion as to how those two bodies should address climate change in practice.  Both the ICAO and IMO are currently working on arrangements for treatment of bunker fuels in consultation with UNFCCC bodies and have published papers on the subject for discussion at Bonn – http://climate-l.org/2010/05/26/unfccc-publishes-icao-and-imo-submissions/

The IMO’s purpose is set out in Article 1 of Convention on the International Maritime Organisation (“IMO Convention”).  Article 1(d) states that one of its purposes is To provide for the consideration by the Organization of any matters concerning shipping and the effect of shipping on the marine environment that may be referred to it by any organ or specialized agency of the United Nations.” 

The Convention on Civil Aviation does not appear to deal directly with climate change, however the ICAO’s own strategic objectives for 2005 – 2010 included the following:

“Strategic Objective C: Environmental Protection — Minimize the adverse effect of global civil aviation on the environment Minimize the adverse environmental effects of global civil aviation activity, notably aircraft noise and aircraft engine emissions, through the following measures:

1. Develop, adopt and promote new or amended measures to:

limit or reduce the number of people affected by significant aircraft noise;

–  limit or reduce the impact of aircraft engine emissions on local air quality; and

limit or reduce the impact of aviation greenhouse gas emissions on the global climate.

2. Cooperate with other international bodies and in particular the UN Framework Convention on Climate Change (UNFCCC) in addressing aviation’s contribution to global climate change.”

The intention behind Article 2.2 of the Kyoto Protocol, Article 1(d) of the IMO Convention and the ICAO’s strategy document is not to prescribe specific action by either IMO or ICAO, but instead to facilitate the use of IMO and ICAO structures to achieve environmental goals.  To the extent that the parties to the COP overlap with the parties to the IMO and ICAO, those parties can use the relevant structures to make the changes that they believe reflect their commitments under the UNFCCC.

A degree of co-ordination between relevant government and UN officials in the COP, IMO and ICAO can be expected with a view to avoiding inconsistency.  Officials in one forum would not ordinarily assume positions in the COP that they knew were going to be rejected by their own governments in the ICAO or IMO and would be expected to consult with counterparts responsible for those organisations.

Given this reality, IMO and ICAO will as a matter of practice be influenced by UNFCCC decisions but the detail of how to translate a COP decision into effect in the IMO and ICAO will be  dealt with under the relevant IMO and ICAO decision making procedures.  Disputes regarding the implementation of such COP decisions by the IMO and ICAO will be dealt with in the context of those bodies’ decision making procedures and the majority view will prevail.

Given the overlap between the parties, consistency of  action across different fora may be expected, but is not guaranteed.  The means to hold the parties to account for perceived inconsistency are by way of political and public scrutiny rather than legal.