Legality of Exemptions in Bunker Fuel Mitigation Package

Legal assistance paper

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Date produced: 09/12/2009

In designing measures to address emissions from international shipping, does the International Maritime Organization (IMO) have the legal mandate to include exemptions – for the purposes of protecting Small Island Developing States – either on the basis of exempting specific countries, or alternatively by setting de minimis thresholds (such as tonnage thresholds) that have the effect of exempting traffic on routes to such countries? 

In relation to the measures available to the IMO to address emissions from international shipping, there is nothing in the Convention on the International Maritime Organization that would prohibit the inclusion of exemptions on the basis of country or de minimis threshold.  It seems, therefore, that the mandate of the IMO, in designing measures to address emissions from international shipping, is plenary.

This conclusion is supported by the fact that several IMO Conventions presently provide exemptions from compliance on the basis of designated areas or de minimis threshold.  For example:

  • Annex VI of the International Convention for the Prevention of Marine Pollution from Ships (MARPOL), governing the prevention of air pollution from ships, sets a global limit on the maximum allowable sulfur content of fuel oil used in shipping to 4.5% m/m.  Annex VI also establishes specific “SOx Emission Control Areas” (SECA) with more stringent controls on sulphur dioxide (SOx) emissions (1.5% m/m).  In this way, Annex VI provides exemptions on both the basis of de minimis thresholds and designated SECAs, such as the Baltic Sea, the North Sea and the English Channel.
  • Several of the regulations in the International Convention for the Safety of Life at Sea (SOLAS) provide exemptions for ships below certain levels of gross tonnage (see, for example, Ch I, Reg 3(a)(ii) –  the application and general definition section which exempts cargo ships of less than 500 gross tonnage).

If restrictions with respect to countries or de minimis thresholds were implemented by domestic action, i.e. country specific rather than through the IMO, then this may be prohibited under GATT (General Agreement on Tariffs and Trade) as a disguised restriction on international trade.  However, this only applies to unilateral actions which is not contemplated.  The proposed action is multilateral.