commensurate contribution to the Paris Agreement and eventually decarbonize in
the second half of the century. Unlike past regulatory triggers, which essentially
consisted of events creating compelling necessity for short-term urgent action, GHG
regulation requires a regulatory strategy for the very long-term and subject to
uncertainties concerning future available technologies, usefulness of market tools,
economic impacts and ratcheting of ambitions. It is conceivable that emission targets
may have to be revised by future meetings of the Contracting Parties to the Paris
Agreement if new science provides evidence that the agreement’s level of ambition
is inadequate to meet the temperature goal. Simply placing faith in technical and
operational measures, such as ratcheting the EEDI to higher levels, is likely insufficient given the expected growth in world trade. Somehow, the strategy should
wean the industry off fossil fuels towards decarbonization. How well positioned is
the IMO to deliver on this ambitious long-term imperative?
The inclusion of port measures and incentives for the strategy’s short-term raises
an interesting question concerning the boundaries of the IMO mandate. IMO
regulation has always focused primarily on ships and ports are addressed only in a
subsidiary manner. Thus, MARPOL is clearly focused on ships and port inspection
plays a secondary role in compliance and enforcement with respect to ships. The
International Code for the Security of Ships and Port Facilities (ISPS) Code
addresses standards for security measures in ports, but again these are motivated
by the presence of and services provided to ships.
53 Ports are clearly subject to a
state’s sovereignty and they do not raise the jurisdictional concerns of ships engaged
in international voyages. They are subject to exclusively national standards and
rules, which vary from state to state, and for the purposes of the Paris Agreement are
captured by the nationally determined contributions. The port state is effectively
accounting for the energy used by ships through provisioning of power from the
domestic grid. Therefore, there is an interesting question here as to the extent to
which the IMO’s environmental mandate can be interpreted to include port activities.
Clearly there is a port-ship interface which is important for the regulation of GHG
emissions from ships, such as the provision of shore-based power which helps a
ship’s ability to reduce emissions. But the provision of green ship incentives can
only be ‘encouraged’, at the most, by the IMO as anything more would step on
member states’ sovereign authority.
MBMs potentially raise another interesting question. The IMO’s mandate has to a
great extent been interpreted and applied to the adoption of technical and operational
measures for international shipping, including for the training of seafarers. MBMs
are different. They are economic measures and the options discussed in the MEPC
include, among other, a carbon levy (for example levied at source on the purchase of
bunkers and reflected on the bunker delivery note) and an emissions trading scheme
(such as a cap-and-trade system, whether restricted to the sector or linked to other
sectors).
54 It is unclear how levies collected on bunker deliveries would be
53 ISPS Code, 2002.
54 Chircop et al. (2018), pp. 49–53.
108
A. Chircop and D. Shan
the second half of the century. Unlike past regulatory triggers, which essentially
consisted of events creating compelling necessity for short-term urgent action, GHG
regulation requires a regulatory strategy for the very long-term and subject to
uncertainties concerning future available technologies, usefulness of market tools,
economic impacts and ratcheting of ambitions. It is conceivable that emission targets
may have to be revised by future meetings of the Contracting Parties to the Paris
Agreement if new science provides evidence that the agreement’s level of ambition
is inadequate to meet the temperature goal. Simply placing faith in technical and
operational measures, such as ratcheting the EEDI to higher levels, is likely insufficient given the expected growth in world trade. Somehow, the strategy should
wean the industry off fossil fuels towards decarbonization. How well positioned is
the IMO to deliver on this ambitious long-term imperative?
The inclusion of port measures and incentives for the strategy’s short-term raises
an interesting question concerning the boundaries of the IMO mandate. IMO
regulation has always focused primarily on ships and ports are addressed only in a
subsidiary manner. Thus, MARPOL is clearly focused on ships and port inspection
plays a secondary role in compliance and enforcement with respect to ships. The
International Code for the Security of Ships and Port Facilities (ISPS) Code
addresses standards for security measures in ports, but again these are motivated
by the presence of and services provided to ships.
53 Ports are clearly subject to a
state’s sovereignty and they do not raise the jurisdictional concerns of ships engaged
in international voyages. They are subject to exclusively national standards and
rules, which vary from state to state, and for the purposes of the Paris Agreement are
captured by the nationally determined contributions. The port state is effectively
accounting for the energy used by ships through provisioning of power from the
domestic grid. Therefore, there is an interesting question here as to the extent to
which the IMO’s environmental mandate can be interpreted to include port activities.
Clearly there is a port-ship interface which is important for the regulation of GHG
emissions from ships, such as the provision of shore-based power which helps a
ship’s ability to reduce emissions. But the provision of green ship incentives can
only be ‘encouraged’, at the most, by the IMO as anything more would step on
member states’ sovereign authority.
MBMs potentially raise another interesting question. The IMO’s mandate has to a
great extent been interpreted and applied to the adoption of technical and operational
measures for international shipping, including for the training of seafarers. MBMs
are different. They are economic measures and the options discussed in the MEPC
include, among other, a carbon levy (for example levied at source on the purchase of
bunkers and reflected on the bunker delivery note) and an emissions trading scheme
(such as a cap-and-trade system, whether restricted to the sector or linked to other
sectors).
54 It is unclear how levies collected on bunker deliveries would be
53 ISPS Code, 2002.
54 Chircop et al. (2018), pp. 49–53.
108
A. Chircop and D. Shan