Emissions enforcement: will the big guns fire?

Paul Gunton

05 September 2019

Back at the end of July I wrote a comment piece about the problem of enforcing the sulphur cap when it comes into force in January 2020 if some port states choose to ignore it and because many flag states have not ratified MARPOL Annex VI, which underpins it.

Things have moved on since then and I have revised my view at the heart of that piece – that the cap and, by implication, every IMO convention, was effectively optional. While I still believe that is essentially true, feedback to my article and subsequent developments show that the potential repercussions are greater than might first appear, making it a less attractive option than I had imagined.

When I wrote that article, Indonesia – which has ratified Annex VI – was planning to ignore the sulphur cap for its national vessels on domestic routes. It has since gone back on that decision.

I also mentioned New Zealand, which has not ratified Annex VI and it was not clear if it would do so. I have since heard from Tom Forster, manager for international connections at New Zealand’s Ministry of Transport, who told me today (4 August) that the government’s cabinet “will shortly be receiving [from the Ministry of Transport] advice on potential MARPOL Annex VI accession.” If the cabinet agrees in principle, this will be followed by a formal treaty examination process – which will involve select committee hearings and “provide interested parties with a further opportunity to express their views” – followed by a further nine-18 months to align domestic regulations with Annex VI.

Only when all that has been done will New Zealand be able to carry out “related enforcement and inspection on foreign ships in port,” Mr Forster said. This will obviously take us way past 1 January 2020. Meanwhile, New Zealand-flagged ships will have to comply when visiting states that are party to Annex VI although “virtually all of New Zealand’s overseas trade is carried on the ships flagged to states party to Annex VI,” he said.

I had cited those two countries as representing two sides of the regulatory coin, but I had overlooked India, which has another outlook on the situation. It has ratified Annex VI but its minister of state for shipping, Mansukh Mandaviya, seems to wish that it had not.

According to the Times of India, he told a seminar organised by the Federation of Indian Chambers of Commerce and Industry that the country is committed to complying with the sulphur cap, “but we need to ascertain whether India was part of this decision making.” India has an important role in international shipping, he said “and therefore [we] need to play a proactive role.” In future, “I will personally like to participate at the IMO deliberations,” he said a few days before my comment was published.

I am not alone in being concerned about how effectively the sulphur cap will be enforced. So is the Trident Alliance, which is a coalition of shipping companies that support “full and effective enforcement of sulphur regulation”. It had also been alarmed at Indonesia’s original statement and its chairman, Roger Strevens, put a statement on its website at the time saying that the it strongly urges any state contemplating partial enforcement to reconsider.

Since Indonesia’s reversal, Mr Strevens has told me that his immediate concern has passed but he still expressed concern over how effective enforcement will actually be on a global basis. The alliance has since prepared a legal briefing document that sets out – among other things – why my earlier view was too simplistic.

It refers to a principle set out in MARPOL that non-compliant ships should receive “no more favourable treatment” (NMFT) than any other ship. So if a ship violates the 0.5% sulphur limit anywhere and later calls at a port in a state that is a party to Annex VI, “then this state will be able to sanction any previous exceedances, due to the NMFT principle,” the briefing confirms.

It also mentions other international legislation, such as the United Nations Convention on the Law of the Sea, the Vienna Convention on Law of Treaties and the International Law Commission’s Articles on State Responsibility and says that the International Court of Justice has previously used these to declare that a state is in breach of its obligations under a convention to which it was party. These laws are big guns that can be aimed well beyond IMO’s lack of enforcement powers.

But I am not convinced that they will be fired. One of the responses I received to my earlier commentary recalled events at IMO when MEPC adopted the 2011 adopted the 2011 EEDI amendments to Annex VI. Unusually, that was not agreed by consensus, because consensus could not be achieved, but by a vote in which only those member states who were party to Annex VI could take part, my correspondent told me.

He described this as a “sleight of hand” and said that “the atmosphere surrounding the MEPC discussions at the prior sessions had been quite strained,” leading to a “loss of goodwill … [that] has never healed.”

I may return to his comments on EEDI in a future commentary, since that is on the fringes of this discussion, but his remarks suggest that there are fault lines between states that radiate from the MEPC and must lie somewhere below the sulphur cap’s surface. So even if the mechanisms exist for trans-national enforcement action to be taken against vessels that have been non-compliant elsewhere, there may not be the political will in some regions to shoulder the weaponry they offer to enforce global compliance.

Do you agree? How do you think international enforcement will be achieved? Email me now with your views.