Failure is not disaster: IMO’s troubled efforts to finalise GHG measures

Thomas Timlen, a Singapore-based analyst, writer and eyewitness of many debates at the International Maritime Organization, reflects on what the organisation’s history says about the prospects for effective climate change regulations.

As another critical meeting of the IMO’s Marine Environment Protection Committee (MEPC) approaches on Thursday, there are mixed feelings regarding whether the outcome will foster a global consensus or fail to, either leaving the industry with one global set of regulations to follow or creating variants on a theme that vessel operators will have to juggle when crossing from one jurisdiction to another, respectively.

The barometer with the wavering needle was wired to the IMO’s Intersessional Working Group on Reduction of GHG Emissions from Ships (ISWG-GHG 8) that met during the last week of May. How well that discussion went depends on who you ask.

The IMO’s ISWG-GHG 8-related public-facing material touts the participants’ agreement on a set of draft guidelines to support mandatory measures to cut the carbon intensity of all ships, measures that had already been approved by the IMO’s Marine Environment Protection Committee (MEPC) in November 2020 and are expected to be adopted when the MEPC meets at its next session from 10 to 17 June.

Any failings by IMO to address emissions from the merchant fleet will be taken up unilaterally or multilaterally

There’s no mention of a deadlock amongst the participants that was reported by Splash, a disagreement that resulted in 27 IMO Member States, including the United States and several Pacific Island and EU nations, refusing to vote on a package of proposed GHG cuts and who instead demanded more ambitious carbon intensity cutting measures.

Splash was not alone in reporting difficulties at ISWG-GHG 8. Bureau Veritas painted a far more dramatic picture with its own good news/bad news summary, pointing out that whilst there was progress made on technical details, the “discussion on the reduction trajectory by 2030 gave rise to bitter debates and fairly deep divisions have emerged between Member States that do not share the same approaches to climate issues.”

Bitter debates and deep divisions have a reputation of fostering polarisation more often than consensus, but despite this, panic would be premature in view of the recent history of maritime regulation – if the late-1980s can be considered as recent.

Following the Exxon Valdez oil spill in 1989, US politicians found themselves in a situation in which the public demanded swift and focused action. Knowing that following the IMO path of seeking international consensus via the process of submitting proposals and subsequent lengthy debate would be far from swift, a unilateral regulation was foisted on the tanker sector, namely the Oil Pollution Act of 1990 (OPA90). Initially having only the local impact of banning vessels that had caused major spills from operating in the Prince William sound, OPA90 subsequently led to the phasing out of single-hull tankers trading to the US.

Frankly, IMO Member States and the organisation itself were less than pleased with the US decision to take the unilateral route, however, in practice, there was not much they could do about it while the industry managed to cope.

Just over ten years later, with OPA90 still fresh in IMO delegates’ memories, the spectre of another unilateral regulatory regime raised its head when, in response to the 2001 Al-Qaeda attacks, the US passed the Maritime Transportation Security Act of 2002 (MTSA). Like every other industry-specific regulatory body the IMO was also tasked with developing a global regulatory regime aimed at securing the maritime sector from terrorist manipulation. At the time it was understood that if the IMO had failed to deliver the global maritime security International Ship and Port Facility Security Code (ISPS), the US would simply apply its own MTSA unilaterally. Hence the ISPS Code came into force faster than most IMO regulations, just over two years after related work had been initiated.

Is today’s questionable progress at the IMO on regulations to adequately address climate change cause for panic? Not necessarily. Considering the recent OPA90 and ISPS Code experiences, together with external factors such as a Dutch court ruling on 27 May that Shell must cut carbon emissions by 45% by 2030, it is not unreasonable to conclude that any failings on the part of the IMO to adequately address emissions from the merchant fleet will be taken up either unilaterally or multilaterally.

Observers who might balk at such an outcome with claims that such a patchwork of regional regulations would be unmanageable need only look back at similar challenges faced by the industry with ballast water management systems. How could varying levels of invasive species eradication possibly be dealt with? In practice, the solution was to simply follow the most rigorous regime – namely the requirements enforced by the US. Adhere with the US requirements, and operators were good to go in all regions, exceeding the requirements of the non-US rules.

There is little doubt that the IMO and all delegations involved at the MEPC are well aware that should they fail to satisfy the global demand for climate-friendly maritime transport, the global merchant fleet will have to comply with a litany of national regulations, some potentially dictated by court rulings. That is certainly not the desired outcome, but if the IMO cannot deliver an international regime to reign in vessel emissions, there are other players in the game who will, and most vessel operators will have no choice but to adhere to the most strict of them.

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