IMO Unfairly Under Fire

Malcolm Latarche
Malcolm Latarche
ShipInsight

09 May 2018


For once the IMO apparently got it right if the mainstream media’s reporting of the events at MEPC 72 and the consequent strategy to reduce CO2 emissions is anything to go by. It was a rare occurrence for the IMO is so often subjected to undeserved criticism from within and without the industry.

In the modern age it seems that there must always be someone to blame when things go wrong or demands are not met – even if those demands may contradict other demands from other stakeholders. But blaming the IMO for shipping’s perceived environmental transgressions or safety lapses merely serves to underline how ill-informed many are of what the IMO is, its structure and indeed its power and authority.

Take for instance the criticisms levelled at the IMO by the NGO Transparency International (TI) earlier this year when it was claimed that shipping industry bodies have more say than national delegations. Another criticism, this time from a trio of NGOs – Seas At Risk, Transport & Environment and the Marine Conservation Society – in the run up to the COP21 talks which resulted in the Paris Agreement, said the ‘IMO has so far failed to grasp the nettle on shipping’s growing contribution to greenhouse gas emissions’.

TI even suggested ten ways in which the IMO should alter its procedures including that it should

  • consider the introduction of requirements for member state representatives to hold an official public mandate as members of their domestic civil service and to demonstrate an absence of conflicts of interest in their role as national delegates, including through disclosure of assets
  • consider modifying the ratification process for IMO conventions so that the importance of tonnage as a measure of a state’s influence is reduced
  • consider introducing a quota system for consultative members to ensure a more balanced representation among different interest groups.

As a UN body, the IMO is open to membership by any member state and it is only accredited delegates from those states that can vote on measures at the two main committees which determine the regulations made. The number of member states that operate open registers of sufficient size and economic importance to them is so few as to make almost no difference to any vote at the IMO as has been demonstrated on many occasions.

There is a link between the first two proposals from TI mentioned that has already been addressed by the IMO many years ago. When it comes to new conventions, the requirement for states to ratify them was designed so as to prevent a representative from binding a member state at the time a new convention is adopted. By requiring states to pass legislation according to their own national procedures before depositing the ratifications, the IMO ensures that its conventions have support of the full domestic legislature of member states.

It is highly possible that a small nation that hosts an open register may find itself hostage to fortune if the register concerned makes a significant contribution to national income. But it would be wrong to suggest that in every case, the interest of shipowners is put higher than other interests of the flag state.

Were that the case, neither the Marshall Islands or Liberia would have been early signatories to the 2004 Ballast Water Management Convention. In fact, most FOC countries have ratified that convention but there are notable gaps in the list of signatories including the UK, Italy, Greece and several other European nations. Panama with its 18% of the world fleet may have come late to the party but since the percentage of the world fleet covered has now reached more than 75% from 69 states, Panama’s ratification is really not of vital importance.

Perhaps it is more pertinent to question why member states do not put greater importance on ratifying conventions. The IMO has a membership of more than 170 states but not one convention has been ratified by all. Taking the Ballast convention as an example, it would seem that more than 100 nations have not considered it worthy of ratification. Even allowing for many of those to be small developing nations, the act of ratifying an IMO convention is not onerous financially or in terms of time unless there is opposition to it from within the domestic legislature.

It should also be remembered that not all of the IMO’s business is about devising new conventions. Aside from the Hong Kong Convention on ship recycling (which is languishing with just six signatories and at 20% of the world with most of that coming from Panama) almost all new business will be amendments to existing conventions.

Amendments come into effect under the tacit acceptance policy adopted in the 1970s at the same time as the one nation one vote change was made to MSC. This means that instead of support needing to be gathered from a set number of nations representing a specified percentage of the world fleet, adopted amendments will only fall if there is dissent from a majority of member states. Prior to tacit acceptance the vast majority of amendments never actually received the two thirds support needed.

The move to tacit acceptance has almost certainly accelerated the rate of new regulation coming from the IMO and especially emissions regulation under MARPOL Annex VI. Without that change having been made it would have been unlikely that the decarbonisation decision taken at MEPC 72 in April would have been able to be written into regulations as quickly as it will be. Under the old system, it would almost certainly have died from lack of ratifications.
Delegate choice is a matter of democracy The first proposal from TI would not be one that most governments around the world would support. Membership of the IMO is voluntary and national governments alone should be able to determine who represents them in international institutions and how they are selected.

Those countries considered as being the leading open registers are not known as dictatorships and most pass the test of free and fair elections so why would anyone question how their international representation is selected? It is true that in many countries and not just those with open registries corruption is a big problem but if governments change regularly then the problem would seem to be in the civil services and other institutions so proposing that national delegates to the IMO should be members of the civil service would seem to be a backward step.

Today, the IMO is probably among the most democratic of international bodies. The make-up of its committees was challenged in the late 1950s when Western nations dominated the MSC and only 14 nations were allowed to make decisions. That was challenged by Panama and Liberia and following an advisory opinion from the International Court of Justice things were eventually changed.

Since 1974 the MSC is open to all member states of the IMO with a one nation one vote policy. A qualified majority of voting nations is now needed to pass decisions made at both MSC and MEPC. There is nothing at all in the structure of the IMO to stop member nations from making decisions that are not in the interests of the shipping industry or even making local regulations that are even more stringent should they so desire.

No doubt, the decisions taken at MEPC 72 were made with the help of some nations voting against the interests of their own shipping communities and that is right and proper. Shipping has to fight its own corner and try to persuade national governments to vote against the most onerous proposals, but it will not win on every occasion and probably is successful less than half of the time.

Another criticism levelled at the IMO by TI was that concerning restrictions on consultative members’ ability to openly criticise the IMO. It may not have been said directly but the context of the criticism implied that it was environmental NGOs that were suffering from this restriction.

Maybe they are but the restriction on criticism cuts both ways and applies just as much to the bodies that are supposedly representing the whole shipping industry or aspects of it. There are a good many shipowners exasperated by the almost total lack of criticism of the IMO and decisions made there. Some of those owners would also welcome a departure from the view that a level playing field is desirable and all regulation should be international.

Certainly some owners operating ships entirely in a region such as Northern Europe wonder why their vessels are obliged to install ballast treatment systems when there is no risk at all of transferring species to areas where they do not already exist.