CLIMATE CHANGE AND SHIPPING
In a few weeks more than 10,000 representatives of governments, NGOS, scientists, businesses, academics and others will congregate in Doha, the capital of Qatar, for the 18th meeting of the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC). The recent catastrophic Sandy hurricane that devastated a significant part of the eastern shores of the US has rekindled climate change awareness in the US and the world. Unfortunately, since the unsuccessful meeting in Copenhagen in 2009 governments have been unable to come to an agreement on addressing the future of climate change by adopting a successor to the Kyoto Protocol whose first commitment period will end at the end of 2012. Since Copenhagen governments have met in Cancun (2010) and Durban (2011). The debates have been intense, at times highly emotional and contentious, but most significantly slow and lacking outcome.
Shipping, which is also among the issues that have been on the climate change agenda, has had its share of controversy in the great climate change debate. Shipping, while in the overall big picture of climate change is a modest contributor, nonetheless, is under pressure to reduce greenhouse gas emissions. The regulation of marine bunker fuel was not included in the Kyoto Protocol to the 1992 United Nations Framework Convention on Climate Change (UNFCCC). The Kyoto Protocol instead required that the Annex I countries, which in general are the developed countries, pursue limitation of bunker fuel through the International Maritime Organization (IMO). In 1997 the IMO undertook its first study on greenhouse gas emissions and shipping and in 2009 completed its second study. According to the first study, shipping accounted for approximately 1.8 percent of the world’s anthropogenic emissions of CO2. The 2009 study increased this amount to 3.3 percent for all shipping or 2.8 % (870 million tones of CO2 annually) for international shipping alone. The 2009 study also estimated that if no action were taken shipping emissions would increase to 1250 million tonnes annually or approximately 6 percent of global emissions by 2020 and by 150-200 % over 2007 levels by the year 2050. The 2009 study also concluded that very substantial reductions of shipping emissions were possible through increased efficiency by improved ship design (up to 50 %) and improved operational standards (25%) for a total of 75% decrease in GHG emissions.
As part of its work in addressing climate change and international shipping, the IMO Marine Environment Protection Committee (MEPC), at its 60th session, established an Expert Group on Feasibility Study and Impact Assessment of Possible Market-based Measures (Expert Group). The Expert Group prepared a study that was introduced at MEPC 61. The Expert Group Study assessed ten market-based mechanism proposals for reduction of ship-based GHG emissions. Differences of views were quick to surface, notably the division between the developed States and the developing States. The underlying problem lies in the key differences between IMO legal framework and the climate change legal framework. Most notably, the climate change framework under the UNFCCC separates countries into two main groups: Annex (developed) and non-Annex (developing) countries. The IMO adopts the non-discriminatory “no more favorable treatment” principle requiring a level playing field for all countries. By contrast the UNFCCC adopts the principle of ‘common but differentiated responsibilities,’ which specifically promotes differential treatment between developed (Annex) and developing (non-Annex) countries. This differentiation is further reflected in the obligation for the developed countries take the lead in combating climate change, meaning to shoulder the principle responsibilities to take action. Moreover, the climate change framework includes financial mechanisms known as market based mechanisms that include emission trading. This raises the question whether the IMO should be involved in activities of a financial character. Other differences between the two regimes include the process by which decisions are taken: the IMO has adopted the tacit amendment mechanism whereas the UNFCCC is structured on consensus-based decision-making. In sum, the two regimes have significant differences raising questions of regime compatibility.
In 2011, the IMO wisely opted to follow its traditional path in addressing GHG emission reduction for shipping by using its own legal instruments. The 62nd session of the Marine Environmental Protection Committee (MEPC 62) amended Annex VI of MARPOL 73/78 on air pollution with the new Energy Efficiency Design Index (EEDI), made mandatory for new ships 400 gross tons and above engaged in international voyages, and the Ship Energy Efficiency Management Plan (SEEMP) for all ships. All ships will be required to keep on board a SEEMP, which can be part of the Ship Safety Management Plan. According to an IMO submission to the UNFCCC Subsidiary Body on Scientific and Technical Advice (SBST) presented in 2011, Marpol 73/78 which represent some 80% of the world’s merchant shipping tonnage including both developed and developing countries and some 75% of CO2 emissions, will result in an estimated 150 million tonnes of annual CO2 reductions by 2020 and by 2030 some 330 million tonnes of CO2 annually.
However, the amendment to Annex VI was not adopted by consensus with a number of Parties disagreeing with it. The debate on shipping and climate change no doubt will continue especially on the role of shipping and emission trading and market based mechanisms. However, upon a close examination there are significant differences between the IMO legal regime for international shipping and that of the UNFCCC climate change which in this author’s opinion prevents the marriage of the two. The IMO should continue to regulate GHG emissions through existing IMO instruments and mechanisms.