IMO is a writer not a fighter

Malcolm Latarche

Malcolm Latarche · 04 March 2020

ShipInsight


“If you put me in a ring for a few rounds of boxing I'll fall down right there”, so goes the opening line of an old pop song by Gilbert O’Sullivan and it is particularly apt to describe what the IMO does – or doesn’t do.

If you put me in a ring
For a few rounds of boxing
I'll fall down right there on the ground
Cause I'm a writer, not a fighter
I'm a writer, not a fighter
I'm a writer, not a fighter

Whether its an environmental group lamenting the slow pace of regulation of shipping, an equipment manufacturer with some new piece of kit it thinks ought to be mandated, a member state with a particular axe to grind or even a ship operator appalled at new rules promulgated with out regard to cost or practicality, the IMO is constantly accused of falling down and not coming up with the goods.

However, that is an unfair view and merely illustrates that the role of the IMO and the powers it does or does not have are mostly misunderstood. It is worth reminding ourselves of what it can and cannot do and to consider how it does that.

So where does the IMO fall down?

First and foremost, the IMO is a talking shop where sovereign nations decide between themselves what rules and standards should apply to ships and in some instances their crews. Most recognise that it is part of the United Nations but too many believe that makes it a part of a world government which it plainly is not.

Nation states are not obliged to join the IMO nor to apply its rules if they do not wish to do so. They can pick and choose to what extent they will follow them although in many cases, having agreed to accept some rules they will then be obliged to adopt others. For example, a member state which signed up to Annex VI of MARPOL when it only expected NOx and SOx to be controlled, will be obliged to comply with any controls on CO2 that might be made unless they revoke their acceptance of Annex VI.

Decisions at the IMO can only be made by a majority of the member states present. All of the NGOs, industry bodies and others granted observer status can make inputs into IMO meetings but have no vote. Delegates from the member states must decide which of the submissions made should shape their final vote on any given issue. This requires a delicate balancing act on behalf of the delegates weighing up environmental and economic factors but ultimately, the power they wield will depend upon the type of government they are part of.

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Autocratic states can ignore the will of the people while democracies generally cannot. Sometimes even in democracies the choice of government may not affect how a delegate votes but as has been seen with the US, changes of direction do happen.

Building a consensus among IMO member states can be a lengthy process and can be further frustrated by imposing conditions for codes and conventions entry into force. Ballast water treatment is a prime example with regulation taking more than three decades to be fully in place after an issue was identified.

Thus it is not possible for the IMO to do anything without consensus of member states regardless of how loud any special interest group shouts. This has been evidenced most recently by the fact that use of HFO in Arctic waters is still allowed despite fierce criticism by environmental groups.

Secondly, the IMO writes rules but does not enforce them. That is the province of member states.

Most are familiar with the terms port state and flag state and recognise that the former relates to the governance of countries in regard to territorial waters and port facilities while the latter relates to governance of ships and their operation. Herein lies the first problem for the IMO since its remit only applies to the latter. There are a few areas where this may not seem to be the case – establishment of ECAs for example – but in reality, the rules made apply to the ships chosen means of meeting an environmental obligation signed up to under MARPOL.

As port states, nations are not obliged to adopt or enforce any of the IMO rules. That is why, some states have been able to bring in bans on open loop scrubbers in their territorial waters. Ironically, many of those states as signatories to MARPOL Annex VI and in their role as a flag state do allow ships under their flag to use open-loop scrubbers at sea and in the territorial waters of other states that have no bans.

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Despite not being an independent sovereign state, the EU has a record of imposing its own rules on its own member states and being able to influence events at the IMO by directing the actions of some states.

There are many more examples of port states setting conditions on what may be legal elsewhere include limitations on ballast operations, use of communications, limitations on types of fuel or lubricants used, discharge of waste and many more.

For contraventions of IMO rules on the open seas, only flag states can take any action. Some may question how, if this is the case, the US is frequently seen to impose penalties for magic pipe transgressions outside of its waters. This is only possible because the ships invariably make false entries in their log books about such events and, since the US as a port state can require access to log books, if this has been done then the US maintains the ship is making a false declaration in US territory which is illegal under US law.

The adoption of Port State Control regimes around the globe are a reaction to failure by flag states to ensure ships abide by the rules laid down.

One thing that is also commonly misunderstood as far as IMO Conventions go is that once accepted by a member state, SOLAS applies only to vessels trading internationally, whereas MARPOL applies to all ships and ship types regardless of where they operate. Of course when a vessel of a particular flag state operates only in that state’s territorial waters, any enforcement is in the hands of a single government. For that reason, some states have been quite open about laxity in enforcing the 2020 rules on domestic vessels and few would expect Russia to penalise any of its vessels using HFO in the Arctic if such a ban were to come into effect.

IMO Conventions and Codes now run into many thousands of pages and documents so its role as a writer is very clearly established but as only member states can determine its direction and decisions and then enforce them it is clearly not a fighter.

However, shipping does need a framework of regulation for safety and environmental protection and while the IMO may not be perfect it is the only body able to do anything on an international scale and therefore it has an essential place. If it needs reform then that is a job for the governments of its member states and if the population of those states are genuinely interested in improving things then they need to make that known to their governments and not the IMO itself.

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