IMO and shipping decarbonisation: the legal framework to adopt a Market-Based-Measure (MBM)
- Authors
- Publication Date
- Jul 15, 2024
- Source
- Hal-Diderot
- Keywords
- Language
- English
- License
- Unknown
- External links
Abstract
International Maritime Organization (IMO) is the United Nations specialized agency competent to ensure cooperation to regulate shipping. It works on safety & security, and reducing pollution from shipping. In this regard, States adopt, under IMO, the International Convention for the Prevention of Pollution from Ships (MARPOL) and the 2023 IMO Revised Strategy on Reduction of GHG Emissions from Ships. The Annex VI of this Convention is dedicated to the prevention of air pollution. In this order, it imposes technical and operational energy efficiency measures. Economical measure is required to be adopt by the 2023 GHG IMO Strategy. However, IMO has not yet adopted any economical measure. A Market-Based-Measure (MBM) is essential to ensure shipping decarbonization in time. The issue is: does IMO have the legitimacy to adopt an efficient MBM regarding its legal competences?IMO is legitimate to be used to adopt a MBM. Indeed, the Convention on the International Maritime Organization does not limit the power of the IMO on the topic of GHG emissions reduction. Moreover, this founding text does not limit the type of the instrument that the Organization can adopt to achieve its missions. In addition, many Articles of the United Nations Convention on the Law of the Sea require that States take all the necessary regulations to protect environment. To that, they must use the “competent international organization”, identified as IMO. In addition of these two maritime Conventions, the international laws on climate change also empowers IMO to take MBM. This is found explicitly in the Kyoto Protocol, and implicitly in the Paris Agreement. Moreover, there is many example of the use of an economical measure to figth climate change.To ensure that the MBM contributes to shipping decarbonization, States must be careful to its terms. This includes the scope, the administration, and the use of the revenues. There is no legal limit to adopt a scope that include all type of GHG emissions and a Well-to-Wake (WtW) approach. In fact, IMO was already used to regulate indirectly related sectors to shipping, as port or shipbuilding industry. Consequently, there is no opposition to regulate Well-to-Take (WtT) emissions, even if it will impact fuel suppliers. Concerning the administration, nothing in the Convention on the International Maritime Organization is opposed to a management by IMO. However, no provision permitted it. Hence, it is preferable to create a new independent authority dedicated to the administration of the MBM. This authority will be in charge to collect the revenues and redistribute them as legally decided. The redistribution must respect the international law principles on climate change, as the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC) and the polluter pays principle, and the IMO Strategy principles, as the principle of the higher ambition and the need to consider the impacts of MBM on States.All these elements prove the legitimacy of IMO to adopt a MBM. There is no legal obstacle. There is even legal duty. It is an emergency regarding the climate change. IMO and shipping sector have to take their responsibilities.
