administered, as well as their eventual use or disbursement, but what is clear is that
the IMO is not set up to receive levies, which some states have characterised as
taxes.
55 The IMO’s constitutive instrument does not contain express provision to
authorise this function, or for that matter to administer an emissions trading scheme.
The IMO was not designed for market intervention, but rather to provide machinery
for international cooperation for the adoption of the highest practicable technical and
operational standards. Thus, should the IMO proceed with MBMs in the strategy, it
will likely need to clarify its own legal authority to perform this function. It would
need to consider whether MARPOL, as an instrument on technical and operational
matters, is sufficient or whether a new instrument will be needed. Moreover, it would
likely need to reconsider how its current structure, secretariat functions and expertise
would be able to administer such new tasks. The IOPC Fund provides an interesting
precedent for a separate structure to collect funds for disbursement. The Fund was
established as a result of deliberations in the IMO, but it has its own legal personality
and operates independently. The IMO, as a regulator, maintains an arms’ length
relationship with the Fund that acts as an insurer.
IMO regulation has long been guided by compelling necessity, pursued through a
principled approach. Although maritime regulation has accommodated the precautionary approach, by and large maritime regulation is evidence-based. The evidencebased approach, which suits the industry’s planning and cost-structures, could limit
the IMO’s flexibility in regulating GHG emissions in the context of the uncertainties
we identified earlier. The industry’s preference for regulation based on available
technologies could be an issue, because GHG regulation should be proactive and
foster an environment for the development of new technologies, rather than be
reactive and responsive to technological availability. There needs to be a shift
from the IMO’s past history of predominantly reactive regulation, to greater proactive regulation that sets the long-term path to decarbonisation.
5 Conclusion
On the adoption of the IMO Initial Strategy, which he described as addressing an
‘immense and global challenge,’ IMO Secretary-General Kitack Lim stated that the
strategy ‘sets a clear signal on how to further progress the matter of reduction of
GHG emissions from ships up to 2023. The planning exercise to implement the
Initial Strategy up to 2023 is now behind us. It is time to take a step further.’
56 There
are a series of next steps to be taken, including a fourth study on GHG emissions
from ships, but the principal task is the finalization of the strategy for adoption in
55 For example, Greece, a major beneficial owner of shipping. Report of the MEPC on its 58th
Session, IMO Doc MEPC 58/23 (16 October 2008), annex 10.
56 “Next steps to deliver IMO GHG strategy’, (IMO Press Briefing, 22 October 2018), online: http://
www.imo.org/en/MediaCentre/PressBriefings/Pages/Home.aspx.
Governance of International Shipping in the Era of Decarbonisation: New. . .
109
the IMO is not set up to receive levies, which some states have characterised as
taxes.
55 The IMO’s constitutive instrument does not contain express provision to
authorise this function, or for that matter to administer an emissions trading scheme.
The IMO was not designed for market intervention, but rather to provide machinery
for international cooperation for the adoption of the highest practicable technical and
operational standards. Thus, should the IMO proceed with MBMs in the strategy, it
will likely need to clarify its own legal authority to perform this function. It would
need to consider whether MARPOL, as an instrument on technical and operational
matters, is sufficient or whether a new instrument will be needed. Moreover, it would
likely need to reconsider how its current structure, secretariat functions and expertise
would be able to administer such new tasks. The IOPC Fund provides an interesting
precedent for a separate structure to collect funds for disbursement. The Fund was
established as a result of deliberations in the IMO, but it has its own legal personality
and operates independently. The IMO, as a regulator, maintains an arms’ length
relationship with the Fund that acts as an insurer.
IMO regulation has long been guided by compelling necessity, pursued through a
principled approach. Although maritime regulation has accommodated the precautionary approach, by and large maritime regulation is evidence-based. The evidencebased approach, which suits the industry’s planning and cost-structures, could limit
the IMO’s flexibility in regulating GHG emissions in the context of the uncertainties
we identified earlier. The industry’s preference for regulation based on available
technologies could be an issue, because GHG regulation should be proactive and
foster an environment for the development of new technologies, rather than be
reactive and responsive to technological availability. There needs to be a shift
from the IMO’s past history of predominantly reactive regulation, to greater proactive regulation that sets the long-term path to decarbonisation.
5 Conclusion
On the adoption of the IMO Initial Strategy, which he described as addressing an
‘immense and global challenge,’ IMO Secretary-General Kitack Lim stated that the
strategy ‘sets a clear signal on how to further progress the matter of reduction of
GHG emissions from ships up to 2023. The planning exercise to implement the
Initial Strategy up to 2023 is now behind us. It is time to take a step further.’
56 There
are a series of next steps to be taken, including a fourth study on GHG emissions
from ships, but the principal task is the finalization of the strategy for adoption in
55 For example, Greece, a major beneficial owner of shipping. Report of the MEPC on its 58th
Session, IMO Doc MEPC 58/23 (16 October 2008), annex 10.
56 “Next steps to deliver IMO GHG strategy’, (IMO Press Briefing, 22 October 2018), online: http://
www.imo.org/en/MediaCentre/PressBriefings/Pages/Home.aspx.
Governance of International Shipping in the Era of Decarbonisation: New. . .
109