Not Logged In, Login,

Tuesday, October 23, 2018

POINTS OF VIEW - What happened to international consensus at the IMO?

Recent decisions from the International Maritime Organization has shown an increasing trend of Member States being allowed to differ and ring the changes on certain items of international regulation if they disagree with what is being agreed.

Political pressures at the IMO are on the increase. But if states or groups of states make their final decision over how they will act before the debate and discussion takes place at the IMO, and then insist on opt-out clauses to achieve a so-called international consensus, then the concept of international regulation for an international industry is put at risk. The situation where ship operators have to check each country on their itinerary to see how it stands on a particular regulation goes contrary to much of what the IMO stands for in terms of achieving free trade and a level playing field for all ships trading worldwide.

The thin end of the wedge was firmly established in the April 2001 amendments to MARPOL 73/78 which entered into force in September 2002. Although accelerated single-hull phase-out saw 2015 established as the cut-off date for single-hull tankers, Flag States were permitted to allow newer single hulls to trade on to 25 years of age (subject to CAS). However any PortState was allowed to bar such extended tankers. The global unity of international regulation was flawed.

At MEPC 50 last December, heightened political sensibilities were evident, with Europe’s unilateral regulation 1726 of October 2003 hanging over the proceedings as a threat to the consistency of the global regulatory regime. The outcome could barely be called international consensus, with so many opt-outs that many in the tanker industry are still trying to ascertain who is allowed to do what, and where, and when.

International single-hull phase-out is now 2010, nicely in line with Europe - and with OPA90 (except for LOOP and designated offshore lightering areas). In addition, any Category 2/3 ship with double bottom (db) or double sides (ds) may trade up to 25 years even if this is beyond 2015. That much is fairly straightforward. However, any FlagState may allow the continued operation of Category 2 and 3 single hulls beyond 2010, but only up to 2015 or the vessel’s 25th anniversary date, whichever is earlier. But any PortState may deny entry to either of these categories of ‘life-extended’ tanker.

A similar pattern of opt-outs exists for the new regulation 13H on the carriage of heavy grade oils. A Flag State may allow some single hulls (with db and ds) to continue to trade heavy grade oils until 25 years old, even beyond 2015; others to continue to carry heavy crude oils up to 25 years. But a PortState may deny entry to any single hulls carrying heavy grade oils, even those with specific extensions from their Flag States.

While the 15 European countries came straight out and declared there and then that they will deny entry to all ships whose Flag State has extended phase-out and to ships with db/ds trading after 2015, the situation for the rest of the world is totally unclear. No one knows which Flag States will permit extended trading life and which Port States will deny these ships entry.

The latest instance arose last week in the newly adopted International Ballast Water Convention. The situation was difficult, with many of the major issues being decided either by an indicative vote or by last-minute compromise negotiations. Entry-into-force dates were set for the phase-out of ballast water exchange and the introduction of treatment options, even though none of the treatment options are yet considered viable.

Yet, despite apparent consensus, caveats in the articles of the Convention allow States to implement more stringent measures than those laid down, the explicit nature of which is ringing alarm bells over the potential for unilateral action to enforce higher standards in some areas.

What will be next? Sulphur regulations? MARPOL Annex VI already specifies 1.5% sulphur fuel in designated Sulphur Emissions Control Areas, which fuel has to be carried separately from the standard (average 2.6% sulphur) fuel. However the European Commission has proposed amendments to Europe’s Directive on Sulphur Content in Marine Fuel 1999/32, which include mandatory use of 0.2% sulphur fuel at berth. If this goes through, it will mean more unilateral legislation bringing pressure to bear on the IMO – in this case pressure for amendments to its MARPOL Annex VI.

Does the precedent of opt-outs mean that those States which feel strongly about 0.2% sulphur fuels at berth will be permitted to deviate from international sense and consensus as a sop to their sensibilities? Does it mean more unilateral legislation upsetting the principle of international regulation?