IMO 2020: Enforcement could slip through Marpol’s loopholes

Paul Gunton

Paul Gunton · 31 July 2019


Indonesia’s reported plans to ignore the sulphur cap for its national-flag vessels on domestic routes puts a spotlight on the biggest difficulty regulators will face: enforcement.

The cap applies to ships registered with states that have ratified Marpol’s Annex VI wherever they sail, not just when they are on international voyages, as with SOLAS and other conventions. So if Indonesia – which has ratified Annex VI – goes ahead with its threat, it will be violating one of the world’s most significant shipping conventions.

Meanwhile, there are a number of nations that are important to world trade and have not ratified that annex. One of them is New Zealand where a newspaper report referred to concerns about a lack of compliant fuel if it were now to ratify it.

I have contacted Indonesia’s Directorate General of Sea Transportation and Maritime New Zealand for a better understanding of both countries’ plans and will update this item in due course based on any replies that I receive.

Hitherto, I have only thought about enforcement in connection with ships themselves. But what happens if a flag state itself acts against a regulation it has adopted, as Indonesia appears to be considering?

I asked IMO’s secretariat for guidance as to what might be done. Could such a state’s IMO membership be suspended? No. “There is no provision for this in the IMO Convention,” the secretariat’s spokeswoman told me. However, there is the Member State audit scheme, which provides “an opportunity for auditors to check how a Member State complies with its obligations under a number of IMO conventions, including Marpol,” she reminded me. This can lead to a “corrective action plan” to advise a country how to improve its compliance.

But Indonesia went through a voluntary audit in 2018 and is not due for another until 2022, so there is no likelihood of corrective action to its latest reported plan from that process. In any case, as of today (30 July), Indonesia has not informed IMO of its intentions so there is nothing formal to respond to.

If there is no action that IMO can take, could Indonesia be named and shamed at the next meeting of its Marine Environment Protection Committee (MEPC 75)? Possibly, but that would have to be initiated by other delegations. MEPC 75 will meet between 30 March and 3 April 2020 and its draft agenda includes an item on air pollution prevention, so that would be one avenue for member states to voice their opinions.

Or they could use the next meeting of MEPC’s Sub-Committee on Pollution Prevention and Response (PPR 7) in February to make some critical remarks. There is also a possibility that concerns might be raised during the IMO Assembly meeting (A31) later this year (25 November – 4 December), which always includes a report from MEPC which “allows for anything related to be discussed,” the secretariat’s spokeswoman said.

But even if Indonesia confirms that it will ignore the sulphur cap, I forecast that nothing will be said at any of these meetings because I believe other states will do the same. They may not announce it and I have no evidence to support my view, but – at least in the early weeks and months, when compliant fuel might be in short supply – I think that blind eyes will be turned in ports in some of the more remote parts of the shipping world.

This is alarming: it means that compliance with Annex VI is optional. It is a small step from there to say that complying with any IMO convention is optional with no effective sanctions available in response.

In others parts of the world, there will be no need to comply because – like New Zealand – many countries have not ratified Annex VI. You can identify the full list of states that have not ratified it here but it includes Argentina, Bahrain, Ecuador, Egypt, Hungary, Israel, Mexico, Myanmar, Oman, Pakistan, Qatar, Sri Lanka, Thailand and Venezuela.

Ships registered in these countries and operating between them need not use compliant fuel or fit scrubbers so an enterprising New Zealand shipowner might offer a liner service between PICT in Lahore or LCIT near Bangkok and SCCT in Port Said with cargo feedered to and from Asia and Europe at each end. Its ships could offer a competitive service using high-sulphur fuel without breaking any rules.

Its ships would have to avoid visiting any ports or offshore terminals of states where Annex VI has been ratified because, if they did, Marpol Annex V allows that port state to “apply the requirements … to ensure that no more favourable treatment is given to such ships.” For example, it could deny entry to a ship or “take such steps as will ensure that the ship shall not sail until it can proceed to sea without presenting an unreasonable threat of harm to the marine environment.” That would limit my hypothetical shipowner’s options for loading stores and bunkers, embarking crew and carrying out repairs.

This is an aspect of 2020 enforcement I have not thought about before and I would welcome your feedback on this scenario. Could it work? Should Marpol’s application be amended in some way to sanction states that are party to the Annex VI but choose not to comply? Are IMO’s conventions effectively optional? Email me with your thoughts now.

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