MARPOL, Brazil and tacit amendment

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Date produced: 14/01/2013

1. Has Brazil objected in the past to the procedure of “tacit amendment” under the IMO?

2. As Brazil recently objected to the “tacit amendment” procedure for the MARPOL Annex VI amendments related to adoption of the EEDI, has it forwarded these amendments to the National Congress for ratification yet?

3. Is there a sound legal basis for this objection under the Brazilian constitution, or is it more likely to be a gesture of protest of the passage of the EEDI, continuing the objections Brazil and some other countries have expressed in the past in the MEPC and IMO Assembly?

4. Have any other countries stated similar objections to the “tacit amendment” procedure?

5. Are Brazilian flagged ships at risk of being blocked from foreign ports even if they obtain as “International Energy Efficiency Statement of Compliance”?

6. Is it only Brazilian flagged ships that are affected? Would this be a significant incentive to change flags? How many ships fly under the Brazilian flag?

7. What other implications might there be if Brazil continues to object to the “tacit amendment” procedure, and doesn’t request Congress to ratify the amendments?

1. As far as we know, this is the first time Brazil files an objection to a MARPOL amendment. According to the IMO reports below (“Status of Multilateral Conventions and Instruments in Respect of Which the International Maritime Organization or its Secretary-General performs Depositary or Other Functions”), there was no formal objection from Brazil in the past regarding the IMO amendments. See:

2. The Ministry of Foreign Affairs has not forwarded the amendment to National Congress yet. According to the Chamber of Deputies website consultation tools, no proposition was submitted regarding MEPC.203(62) until 07/02/2013.

3. Amendments to the Annexes of MARPOL 73/78 are usually adopted either by IMO’s Marine Environment Protection Committee (MEPC) or by a Conference of Parties to MARPOL. They enter into force in accordance with the “tacit acceptance” procedure, whereby the amendments enter into force on a specified date unless an agreed number of States Parties object by an agreed date. Those procedures also allow parties to make a declaration that they do not accept an amendment – Art.16 subparagraph 2 (g) (ii) of MARPOL 73/78. The Secretary General of the IMO has to be notified of such an objection (Art.16 para.9). In raising an objection, Brazil therefore acts within its rights under MARPOL 73/78.

International treaties are hierarchically inferior to the Constitution. With the exception of human rights treaties, that are considered to have constitutional status, they have to be incorporated through an act of parliament into the Brazilian legal order. In several cases, Brazil’s Supreme Court decided that international acts that had not been adopted in accordance with the appropriate procedures were not part of Brazilian law at all.

Under the Brazilian Constitution, Article 49 para.I, the National Congress has exclusive competence to “decide conclusively on international treaties, agreements or acts which result in charges or commitments that go against the national property”. As a result, the previous amendments to MARPOL have been consistently submitted to Brazilian National Congress (namely the MEPCs 117(52), 118(52), 132(53), 141(54), 143(54), 154 (55), 156(55) and 164(56)), expressly under the provision of article 49, para.I, of the Constitution, among others. MEPC.203(62) arguably imposes new, obligatory and burdensome measures on the Brazilian economy and state, to be accomplished in accordance with a specific deadline. So there appears to be a sound legal basis for the objection if the National Congress does not endorse the MEPC.203(62).

The objection is closely linked to the position Brazil has sustained in the MEPC and IMO Assembly, regarding energy efficiency measures under the IMO. The Ministry of Foreign Affairs filed the objection to “tacit amendment” of the MPEC 203(62) because, according to the Brazilian government, this amendment is not in accordance with the principles of the Kyoto Protocol. It has, for example, been argued that obligatory energy efficiency measures to reduce greenhouse gas emissions go beyond the scope of the IMO and its Conventions. MEPC.203(62) would result in climate change mitigation commitments which, according to the UNFCCC, the Kyoto Protocol and the principle of common but differentiated responsibilities, only industrialised Annex I countries should have. Brazil will only accept this amendment when IMO launches a resolution regarding exchange of technology between developed and developing countries, as foreseen in the amendment.

4. According to the official IMO report, disclosed in December 2012, by 1 July 2012, only two objections were communicated to the Secretary-General: Brazil and Finland. At the meeting, five countries voted against the amendment: Brazil, Chile, China, Kuwait and Saudi Arabia.

5. As Brazil objected to the MPEC 203(62), IEEC cannot be issued for Brazilian ships. According to rules established by the new amendment, a country which is a Party to the amendment is allowed to prevent Brazilian ships from docking. Also, if a Brazilian ship docks in a port of these countries without the IEEC, in the event of an official supervision, it can be seized.

6. Neither Brazil nor any other country may issue the IECC to Brazilian flagged ships. Likewise, the Brazilian government may not issue this certificate to ships of other countries. Brazilian authorities only disclose information regarding the number of ships flying Brazilian flag if this request is formally filed.

7. The amendment will not apply to Brazil. See above no 6.