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THE INTERNATIONAL JOURNAL OF

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Protecting the Malacca and Singapore Straits from Ships’ Atmospheric Emissions through the Implementation of MARPOL Annex VI

Mary George,*, a Abdul Samad Shaik Osman,b Hanafi Hussinc and Anneliz Reina Georged

a Institute of Ocean and Earth Sciences and the Faculty of Law, University of Malaya, Malaysiab Principal Assistant Director, Ship Accreditation Unit, Maritime Industrial Control Division, Marine Department, Ministry of Transport, Malaysia c Institute of Ocean and Earth Sciences and the Faculty of Arts, University of Malaya, Malaysiad Researcher, Pursuing Master of Economics, University of Malaya, Malaysia

Abstract

The International Maritime Organization (IMO) adopted legally binding regulations for the control of ships’ atmospheric emissions under Annex VI of the International Convention for the Prevention of Marine Pollution from Ships, 1973/78. With Singapore, Malaysia and Indonesia being States Parties thereto, consequently, one of the effects in the Malacca and Singapore Straits is that it enables the Straits States, together with the IMO, to designate emission control areas for the approximately 75,000 ships tran-siting annually. This article examines the robust provisions of Annex VI for the marine environmental protection of the Straits and the contentious debates preceding an otherwise dead-locked technology-transfer resolution for implementing Annex VI. If implemented, Annex VI provisions will represent a unique milestone in the protection of the marine environment of the Straits which is regulated by the restrictive provi-sions of Part III of the 1982 United Nations Convention on the Law of the Sea.

* Corresponding author, e-mail: [email protected]. Acknowledgment: This study was carried out under University of Malaya Research Project No. RP 001B-13SUS. Mary George thanks the staff of the University of Malaya; the Ministry of Transport, Malaysia; the Library, The Institute of Advanced Legal Studies, London; the Wolff International and Comparative Law Library of the Georgetown University Law Center; and Captain Simon Bennet of Swire for all support in this research.

96 George et al.

The International Journal of Marine and Coastal Law 32 (2017) 95–137

Keywords

Straits of Malacca and Singapore ‒ Law of the Sea Convention ‒ MARPOL Annex VI ‒ sustainable global shipping ‒ technical resolution debates

Introduction

Atmospheric shipping emissions1 are regulated by the International Maritime Organization (IMO)2 through Annex VI of the International Convention for the Prevention of Marine Pollution from Ships 1973, as amended by the Protocol of 1978 (MARPOL 73/78).3 To address global and local air pollution from ships, the IMO adopted MARPOL Annex VI by the “1997 Protocol”. This Protocol sets out specific detailed technical regulations4 which are frequently5 improved

1 IMO, Technical and Operational Measures, available at http://www.imo.org/OurWork/ Environment/PollutionPrevention/AirPollution/Pages/Technical-and-Operational Measures.aspx, accessed 30 August 2013. These are oxides of nitrogen and sulphur, volatile organic compounds and ozone-depleting substances. See Y Shi, “Greenhouse Gas Emissions from International Shipping: The Response from China’s Shipping Industry to the Regulatory Initiatives of the IMO” (2014) 29 International Journal of Marine and Coastal Law 77–115.

2 Introduction to IMO: History of IMO, available at http://www.imo.org/About/Pages/Default .aspx, accessed 28 August 2013.

3 Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973 (London, 17 February 1978, in force 2 October 1983) 1340 UNTS 61; E. Louka, International Environmental Law: Fairness, Effectiveness and World Order (Cambridge University Press, Cambridge, 2006) 93. Before MARPOL 73/78, a specialized convention, there was the International Convention for the Prevention of Pollution of the Sea by Oil, 1954 (London, 12 May 1954, in force 26 July 1958) 327 UNTS 3; and the 1958 Geneva Convention on the High Seas (Geneva, 29 April 1958, in force 30 September 1962) 450 UNTS 11, one of the predecessors of the 1982 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 396.

4 Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (Including Annex VI (Revised Version as of 2011)) (MARPOL PROT 1997/ANNEX VI) (London, 26 September 1997, in force 19 May 2005) [2007] ATS 37.

5 For instance, IMO Marine Environment Protection Committee (MEPC) 68 considered more than 44 documents on air pollution and energy efficiency; Report of the MEPC on its 68th Session; MEPC 68/21; 29 May 2015; available at http://www.mpa.gov.sg/sites/pdf/mepc68_21_report_68sessioN pdf, accessed 28 December 2015.

97Protecting the Malacca and Singapore Straits


and amended.6 Annex Vi requires flag States to use energy-efficient engines on all ships above 400 gross registered tonnage (grt) to reduce nitrogen oxide (NOx) emissions from marine engines, accompanied by a phased-in progres-sive reduction in sulphur oxide (SOx) emissions from bunker fuel, replacing marine bunker fuel,7 when passing through three types of emission control areas (ECAs). These are Sulphur Emission Control Areas (SECAs), Nitrogen Emission Control Areas (NECAs) and Particulate Matter Emission Control Areas (PMECAs).8 In a new Chapter 4 to Annex VI, certain mandatory measures reduce greenhouse gas emissions (GHGs) from international shipping through two features: the Energy Efficiency Design Index (EEDI), made mandatory for new ships, and the Ship Energy Efficiency Management Plan (SEEMP), a requirement for all ships. Annex VI, enforced through the International Energy Efficiency Certificate,9 entered into force on 1 January 2013.10

Annex VI provisions on the control of atmospheric shipping emissions are ‘robust’ compared to Part III of the 1982 Law of the Sea Convention (LOSC)11 which lays down the regulatory framework for navigation and marine pollution control in straits used for international navigation, such as the Malacca and

6 More recent amendments include: Regional arrangements for port reception facilities under MARPOL Annex VI and Certification of marine diesel engines fitted with Selective Catalytic Reduction systems under the NOx Technical Code 2008; see MEPC Resolution 217(63) Adopted on 2 March 2012, available at http://www.imo.org/en/KnowledgeCentre/IndexofIMOResolutions/Documents/MEPC%20-%20Marine%20Environment%20Protection/217(63).pdf#search=MEPC%2E217%20%2863%29, accessed 29 May 2016.

7 Marine bunker fuel is a very poor quality of petroleum comprising a high sulphur content, volatile organic compounds, greenhouse gases and particulate matter. The various types of heavy fuel oil include: bunker crude, residual fuel oil, bunker fuel, fuel oil No. 6, indus-trial fuel oil, marine fuel oil and black oil. Other types of bunkers exist that are not Heavy Fuel Oils and that have a higher quality, such as diesel.

8 IMO MEPC, 65th session, 13–17 May 2013, available at http://www.imo.org/MediaCentre/PressBriefings/Pages/18-MEPC65ENDS.aspx, accessed 12 September 2013.

9 IMO MEPC 63/INF.2 Annex; Project Final Report Assessment of IMO mandated energy effi-ciency measures for international shipping estimated CO2 emissions reduction from intro-duction of mandatory technical and operational energy efficiency measures for ships; Report Authors: Z Bazari and T Longva, 31 October 2011; Report Assessment of IMO Mandated Energy Efficiency Measures for International Shipping, available at http://www.imo.org/en/MediaCentre/HotTopics/GHG/Documents/REPORT%20ASSESSMENT%20OF%20IMO%20MANDATED%20ENERGY%20EFFICIENCY%20MEASURES%20FOR%20INTERNATIONAL%20SHIPPING pdf, accessed 28 December 2015.

10 Energy Efficiency and Reduction of GHG Emissions from Ships, available at http://www.imo .org/en/MediaCentre/HotTopics/GHG/Pages/default.aspx, accessed 29 December 2015.

11 LOSC (n 3).

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Singapore Straits (the Straits). An essential feature of Annex VI is the enabling technology-transfer resolution, the Resolution on Promotion of Technical Co-operation and Transfer of Technology relating to the Improvement of Energy Efficiency of Ships adopted at the 65th Marine Environment Protection Committee meeting12 (MEPC 65) of the IMO. Technical assistance for imple-mentation of conventions is also promoted under the LOSC.13 As of 19 June 2016, there are 166 States Parties, plus the European Union, to the LOSC and 152 States Parties to MARPOL Annex VI (the latter includes the United States). MARPOL represents 99.2% of merchant shipping tonnage, which is a major paradigm shift in sustainable global shipping. Indonesia, Singapore and Malaysia are States Parties to the LOSC and to MARPOL Annex VI.14

This article does not examine the issue of linkage between the 1992 United Nations Framework Convention on Climate Change (UN FCCC),15 the 1997 Kyoto Protocol to the UN FCCC,16 the COP 21 Paris Climate Conference, and the IMO Conventions that contain elements of potential inter-regime conflicts, for example, between the principle of ‘common but differentiated respon-sibility’ (CBDR) and the principle of ‘no more favourable treatment’ (MFN) of the IMO Conventions.17 It examines the provisions of MARPOL Annex VI

12 IMO MEPC 65 Outcome, available at http://www.safety4sea.com/page/16058/3/imo-pushes-forward-withenergy-efficiency-implementation; accessed 24 June 2013.

13 The World Bank, Changing the Face of the Waters (The IBRD, Washington, DC, 2007) 66–67.

14 LOSC: Indonesia (signature) 10 December 1982 and entered into force on 3 February 1986; Malaysia (signature) 10 December 1982 and entered into force on 14 October 1996; and Singapore (signature) 10 December 1982 and entered into force on 17 November 1994; MARPOL Annex VI: Indonesia (accession) 24 August 2012 and entered into force on 24 November 2012; Malaysia (accession) 27 September 2010 and entered into force on 27 December 2010; and Singapore (accession) 10 August 2000 and entered into force on 19 May 2005; Status of multilateral Conventions and instruments in respect of which the IMO or its Secretary-General performs depositary or other functions, as at 22/12/2015, available at http://www.imo.org/en/About/Conventions/StatusOfConventions/Documents/ Status%20-%202015.pdf#search=indonesia%20ratification%20of%20MARPOL%20Annex%20VI, accessed 30 December 2015.

15 1992 United Nations Framework Convention on Climate Change (New York, 9 May 1992, in force 21 March 1994) 1771 UNTS 107; Third IMO GHG Study 2014, available at http://www.imo.org/en/OurWork/Environment/PollutionPrevention/AirPollution/Pages/Greenhouse-Gas-Studies-2014.aspx, accessed 28 December 2015.

16 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto, 11 December 1997, in force 16 February 2005) 2303 UNTS 162.

17 COP 21 Paris Climate Conference Talks available at http://www.ft.com/intl/paris- climate-talks?ftcamp=traffic/sem/indepth_cop21/apac_google/essence_sem/auddev&&,



that promote sustainable global shipping in the Malacca and Singapore Straits. This article enables the sub-regional States to propose to the IMO that ECAs be established in these seas for the approximately 75,000 ships transit-ing annually. It (1) highlights the legal regime of the Malacca and Singapore Straits under the LOSC, including the inter-play between Part III of LOSC and MARPOL Annex VI; (2) summarizes MARPOL Annex VI and Chapter 4 regulations; (3) describes debates about and strengths of the almost dead-locked technical-transfer resolution; and (4) suggests a way forward.

The Legal Regime of the Malacca and Singapore Straits under the LOSC

About 75,000 ships annually transit the narrow but 600-nautical-mile-long Straits, which feature unique and rare18 coastal and marine ecosystems.19 The Straits comprise the Strait of Malacca, which is contiguous to the Strait of Singapore, forming an international shipping route linking the Indian Ocean (via the Andaman Sea) with the South China Sea to the Pacific Ocean,20 and the Strait of Singapore, which connects to the South China Sea. Legally, transit passage prevails for all ships under the LOSC.21 The Straits have been affected by earthquakes and tsunamis. Scientific studies22 show increases in ocean

accessed 29 December 2015; N Oral, “Climate Change and Shipping: Problems of Regime Compatibility” in: MH Nordquist, JN Moore, AHA Soons and H-S Kim (eds), Thirty-fourth Annual Conference: The Law of the Sea Convention: US Accession and Globalization (Martinus Nijhoff, Leiden, 2012) 175–225, at p. 218. The IMO has participated in the UN Climate Change Conference (COP 21/CMP 11) in Paris, France, on 30 November 2015 and will submit a report on GHG emissions from bunker fuels used for international shipping to the forty-third session of the Subsidiary Body for Scientific and Technological Advice (SBSTA 43) under agenda item 10(c)—Emissions from fuel used for international aviation and maritime transport. See IMO (n 8).

18 SM Phang, H Azhar, VC Chong, H Rosli and A Siti Aisyah (eds), University of Malaya Maritime Research Center, Gems in the Straits of Malacca: The Natural History of Pulau Jarak & Pulau Perak. (University of Malaya Publishers, Kuala Lumpur, 2007).

19 CJ Barrow, Environmental Management and Development (Routledge, Oxford, 2005).20 M Leifer, International Straits of the World: Malacca, Singapore and Indonesia (Kluwer

Academic Publishers, Leiden, 1978).21 See Part III, 1982 LOSC.22 N Nirupama, TS Murty, I Nistor and AD Rao, “The Energetics of the Tsunami of 26

December 2004 in the Indian Ocean: A Brief Review” in: TS Murty, U Aswathanarayana, and N Nirupama (eds), The Indian Ocean Tsunami (Taylor & Francis, London, 2007) 81–89; JK Levy and G Chennat, “Promoting Disaster-resilient Communities: The Great

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acidification and resulting inability of the oceans to buffer CO2 with delete-rious consequences for marine ecosystems. This scientific phenomenon has been explained by numerous experts.23 Schlager highlighted that the presence of sulphur dioxide (SO2) in the Malaysian region was caused by a mixture of emission sources, such as anthropogenic emissions from the Philippines and Singapore and emissions from shipping. Schlager detected the uplift of SO2 into the upper troposphere by deep convection and observed that SO2 distribu-tions compared reasonably with the Emissions Market Assessment Committee simulations.

The effects of NOx and SOx on ecosystems and populations are well studied.24 At the sixty-eighth session of the UN General Assembly, the UN

Sumatra-Andaman Earthquake of 26 December 2004 and the resulting Indian Ocean Tsunami” in G Chennat and N Okada (eds), Water and Diseases (Routledge, New York, 2007).

23 PN Nemetz (ed), Sustainable Resource Management: Reality or Illusion? (Edward Elgar, Cheltenham, 2007) 117–126; C Hertzman, “5: Global consumption from the perspec-tive of public health”, in ibid., at 153–168; M Montini, “Sustainable Development within the Climate Change Regime”, in: HC Bugge and C Voigt (eds), The Avosetta Series 8: Sustainable Development in International and National Law (Europa Law Publishing, Groningen, 2008) 523–543; Brief summary of the impact of ship emissions on atmo-spheric composition, climate, and human health. Document submitted to the Health and Environment sub-group of the IMO on 6 November 2007 by V Eyring, J Corbett, DS Lee and J Winebrake, available at http://www.pa.op.dlr.de/~VeronikaEyring/Eyringetal_IMOBriefSummary_FINAL.pdf, accessed 14 August 2013; for the role of the precautionary principle in the balance to be arrived at in adjusting conflicting rights in the control of ter-restrial air pollution in the UK: C Miller (ed), Planning and Environmental Protection (Hart Publishing, Oxford, 2002) 66–67; H Schlager, A Reiter, H Aufmhoff, A Roiger, V Eyring, V Catoire and S Eckardt, “Pollution from Shipping in the South China Sea: Present and Future Emissions, Atmospheric Impact and Observations during SHIVA” in Conference Abstracts of the Second International Conference of the South China Sea (SCS) SCS 2012 Sharing Knowledge, Resources and Technologies for a Sustainable South China Sea 21–24 October 2012 (Kuala Lumpur, University of Malaya, 2012), a paper presented at the Second South China Sea Conference, University of Malaya organised by the Institute of Ocean and Earth Sciences, October 2012; see also V Eyring, ISA Isaksen, T Berntsen, WJ Collins, JJ Corbett, O Endresen, RG Grainger, J Moldanova, H Schlager and DS Stevenson, “Transport impacts on atmosphere and climate: Shipping” (2010) 44 Atmospheric Environment 4735–4771; See also Falcon—measurement flights in Malaysia, 01 February 2012, Project SHIVA reveals presence of ozone-depleting halogen compounds, available at http://www.dlr.de/dlr/en/desktopdefault.aspx/tabid-10080/150_read-2628/year-2012/150_page-11/#/gallery/4730, accessed 27 April 2016.

24 Capt. ES Vagslid, Technical Officer, Sub-Division for Pollution Prevention, Marine Environment Division, IMO, “Prevention of Air Pollution from Ships IMO’s role in the



Secretary-General’s Report on the Oceans and the Law of the Sea at para 13225 acknowledged the adverse impacts of climate change on the oceans and coastal communities.26 Although shipping has benefitted some coastal State economies in the past,27 future predictions indicate that shipping through the Straits will increase,28 resulting in heavier emissions of sulphur and nitrogen compounds, thereby further harming ecosystems29 and human health,30 and

International Maritime Legislative Framework.” A power-point presentation in pdf, avail-able at http://www.iflos.org/media/2631/Presentation-Eivind-S-Vagslid.pdf, accessed on 28 April 2016; see also “Health impacts of air pollution”, available at http://edugreeN teri.res.in/explore/air/health.htm, accessed 13 April 2013; “The effects of black car-bon on health and climate”, available at http://greenopedia.com/article/effects-black- carbon-health-andclimate, accessed 13 August 2013; J Eilperin, “Black carbon ranks as the second-biggest human cause of global warming”, The Washington Post, 15 January 2013, available at http://articles.washingtonpost.com/2013-01-15/national/36385685_1_black-carbon-impact-of-carbon-dioxide-soot, accessed 13 August 2013; “Guidance for the EPA halon emission reduction rule”, available at http://www.epa.gov/ozone/title6/608/halons/halonfinal.pdf; accessed 13 August 2013; “US EPA”, available at http://www.epa.gov/pm/health.html; accessed 13 August 2013; EB Weiss, “Water transfers and international trade law” in: EB Weiss, L Boisson de Chazournes and N Bernasconi-Osterwalder (eds), Fresh Water and International Economic Law (Oxford University Press, Oxford, 2005) 61–92.

25 Source: UN General Assembly Sixty-eighth session, Item 76 (a) of the provisional agenda*, “Oceans and the law of the sea: Advance and unedited reporting material on oceans and the law of the sea”, available at http://www.uN org/depts/los/general_assembly/oceans_law_of_the_sea68thsessioN pdf, accessed 13 December 2015.

26 For situation in Jamaica, Ibid., at paras 155 and 157.27 US Energy Information Administration, “World Oil Transit Chokepoints, Malacca

Straits”, available at http://www.eia.gov/countries/regions-topics.cfm?fips=wotc&trk=p3, accessed 13 August 2013.

28 “Government steps in to help sailors”, available at http://www.mot.gov.my/my/current News/Pages/Govtstepsintohelpsailors.aspx, accessed 13 August 2013. See also “The incon-sistent trend in the movement of ferries and passengers coming to Malaysian ports”, available at http://www.marine.gov.my/jlm/#.Ugr-f9JHLhE, accessed 13 August 2013.

29 “Harm to ecosystems”, available at http://www.helcom.fi/stc/files/BS_NECA_Conf_2013/Hughes_E_IMO.pdf, accessed 12 September 2013; The Editors, “Preface”, in: CT Hoanh, TP Tuong, JW Gowing and B Hardy (eds), Environment and Livelihoods in Tropical Coastal Zones: Managing Agriculture-Fishery-Aquaculture Conflicts (Cabi, Oxford, 2006) xi–xii.

30 “Chemical properties of Sulphur”, available at http://www.lenntech.com/periodic/elements/s.htm, accessed 3 August 2013; for reports of endangered mammals in US experience, see LS Johnson, Coastal State Regulation of International Shipping (Oceana Publications Inc, New York, 2004). See also P Birnie and A Boyle, International Law and the Environment (2nd ed., Oxford University Press, Oxford, 2002) 500–544.

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causing transboundary air pollution.31 Environmental protection is impor-tant for the Straits, because in the air/sea interactions, the oceans regulate atmospheric fluxes and concentrations of oxygen and carbon dioxide through oxygen production and carbon dioxide sequestration; the oceans also act as carbon dioxide sinks.32 The Straits play a role in ocean-sourced calcium car-bonate production in the formation of islands and beaches, which are impor-tant for, e.g., coastal State tourism and coastal protection (against, e.g., the effects of tsunamis and storms).33

Besides the LOSC, the Straits are subject to the IMO Conventions and other rules of law34 and policy.35 The rule of law is recognised as one of eight prin-ciples of good governance.36 Traffic separation schemes,37 and ships’ routeing38 under Regulation V/10 of the 1974 Safety of Life at Sea Convention,39 promote safety of navigation. For marine pollution control, action plans40 are adopted under the 1990 International Convention on Oil Pollution Preparedness,

31 V Lowe, International Law (Oxford University Press, Oxford, 2007) 240–243.32 “Shipping firms warn of haze danger in Malacca Strait”, available at http://www

.terradaily.com/reports/Shipping_firms_warn_of_haze_danger_in_Malacca_Strait_999

.html, accessed 12 September 2013.33 “Carbon cycle: Gas exchange between the atmosphere and the oceans removes carbon

dioxide and sequesters some of it for long periods in the deep sea”, available at http:// www.interactiveoceans.washington.edu/story/Carbon+Cycle, accessed 12 September 2013.

34 Generally, the multilateral environmental agreements.35 WCED, Our Common Future (Oxford University Press, Oxford, 1987), and international

environmental law principles.36 S. Baker, Sustainable Development (Routledge, London, 2006).37 “Aids to navigation fund set up”, available at http://www.marine.gov.my/jlm/pic/article/

Navigation%20Fund%20Set%20Up.pdf, accessed 13 August 2013; “Malacca Strait “high-way” costs soar”, available at http://www.marine.gov.my/jlm/pic/article/Lloydslist%2018%20april%2008.pdf, accessed 13 August 2013; “Malaysia, Singapore and Indonesia implement co-operative mechanism to safeguard the straits”, available at http://www .marine.gov.my/jlm/pic/article/Malaysia,%20Singapore%20and%20Implement%20cooperative%20mech anism%20to%20safeguard%20straits.pdf, accessed 13 August 2013.

38 IMO, “Ships routeing”, available at http://www.imo.org/ourwork/safety/navigation/pages/shipsrouteinG aspx, accessed 24 June 2013.

39 International Convention for the Safety of Life at Sea (London, 11 November 1974, in force 25 May 1980) 1184 UNTS 278. See also: MSC/Circ.1060 Guidance Note on the Prep-aration of Proposals on Ships’ Routeing Systems and Ship Reporting Systems, available at http://www.imo.org/en/OurWork/Safety/Navigation/Documents/1060.pdf, accessed 6 May 2016.

40 IMO, “Pollution, Preparedness and Response”, available at http://www.imo.org/OurWork/Environment/PollutionResponse/Pages/Default.aspx, accessed 24 June 2013.



Response and Co-operation (OPRC)41 and, for major pollution incidents,42 under the Protocol to the OPRC Convention on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances 2000.43

Interplay between the 1982 LOSC and MARPOL Annex VIThe inter-relationship between the LOSC, metaphorically referred to as the “constitution for the oceans”,44 and the IMO Conventions is well established.45 Articles 237 and 311 of the LOSC provide guidance on the compatibility bet ween the LOSC and the IMO Conventions.46 Specifically, the inter-play bet ween LOSC and MARPOL Annex VI for marine pollution control shows that the two Conventions have common objectives but different approaches, as is seen in, e.g.: the definition of air and marine pollution;47 prescriptive and enforce-ment powers of the Straits States; designation of special areas; and port State

41 International Convention on Oil Pollution Preparedness, Response and Co-operation (Paris, 30 November 1990, in force 13 May 1995) 1891 UNTS 51.

42 See IMO, International Technical Cooperation Programme, available at http://www.imo .org/en/OurWork/TechnicalCooperation/ITCP/Pages/Default.aspx, accesed 6 May 2016.

43 Protocol to the OPRC Convention on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances (London, 15 March 2000, in force 14 June 2000).

44 D. Freestone, “The Law of the Sea Convention at 30: Successes, Challenges and New Agendas” in D Freestone (ed), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (Martinus Nijhoff, Leiden, 2013) 1–8.

45 IMO/LEG/MISC.8, 30 January 2014, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, available at http://www .imo.org/en/OurWork/Legal/Documents/LEG%20MISC%208.pdf#search=IMO%2FLEG%2FMISC%2E7, accessed 6 May 2016. The IMO is established under Articles 1 and 59 of the Convention on the International Maritime Organization (Geneva, 6 March 1948, in force 17 March 1958) 289 UNTS 3, adopted by the United Nations Maritime Conference in Geneva on 6 March 1948; see MH Nordquist, SN Nandan and J Kraska (eds), UNCLOS 1982 Commentary: Supplementary Documents (Martinus Nijhoff, Leiden, 2012) 748.

46 Article 237 LOSC refers to obligations under other conventions on the protection and preservation of the marine environment. Article 311(2) states that the LOSC does not alter the rights and obligations of States Parties which arise from other agreements compatible with the LOSC.

47 Johnson (n 30) 1–5; D Johnston and S Baker, Sustainable Development (Routledge, London, 2006); ER De Sombre, Global Environmental Institutions (Routledge, London, 2006) 69–84; Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Protection and Preservation of the Marine Environment, Repertory of International Legal Agreements Relating to Sections 5 & 6 of Part XII of the United Nations Convention on the Law of the Sea (United Nations, NY, 1990) 1.

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control. This difference influences reliance on the ‘robust’ MARPOL Annex VI, rather than the restrictive LOSC approach, for environmental protection of the Straits. The IMO rules and standards may be adapted to the circumstances of States48 to eliminate sub-standard ships49 as coastal States, exercising port State control, may inspect ships’ certificates50 under LOSC Articles 218, 219 and 220. It is questioned why certain features of MARPOL Annexes I–V: (a) the des-ignation of Special Areas, (b) adoption of special mandatory methods for the prevention of sea pollution,51 and (c) designation of Particularly Sensitive Sea Area (PSSAs), have not been applied in the Straits, as these measures fall within the scope of Part III of the LOSC.52

Definition of Air and Marine PollutionThe first issue in the intersection between the LOSC and MARPOL Annex VI concerns the definition of air and marine pollution. It was generally understood at the Third United Nations Conference on the Law of the Sea (UNCLOS III) that the term “marine environment” included both the atmosphere and

48 The IMO Resolutions are globally endorsed recommendations on the implementation of technical rules and standards not included in IMO treaties which may be adopted by an IMO body, such as the IMO Assembly, the IMO Maritime Safety Committee and the IMO MEPC, for implementation in national legislation to legally bind foreign ships.

49 IMO, “FAL Forms and Certificates”, available at http://www.imo.org/en/OurWork/Facilitation/FormsCertificates/Pages/Default.aspx, accessed 13 October 2015; List of Certificates and Documents Required to be Carried on Board Ships are listed in FAL.2/Circ.127; MEPC.1/Circ.817; MSC.1/Circ.1462, 1 July 2013, available at http://www.imo.org/en/Publications/SupplementsAndCDs/Documents/Certificatesonboardships.pdf, accessed 7 May 2016.

50 IMO, “Revised list of Certificates and Documents Required to be Carried on Board Ships”, FAL.2/Circ.123, MEPC.1/Circ.769, MSC.1/Circ.1409, available at http://www.imo .org/en/OurWork/Facilitation/FormsCertificates/Documents/FAL.2-Circ.123.pdf #search=MARPOL%20Annex%20VI%20certificates, accessed 13 October 2015.

51 See MARPOL 73/78, for example, Annex I-Prevention of oil pollution.52 Particularly Sensitive Sea Areas (PSSAs), IMO, ASSEMBLY, 24th session, Agenda item

11, adopted Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, A 24/Res.982, 6 February 2006, Resolution A.982 (24), Adopted on 1 December 2005 (Agenda item 11), available at http://www.imo.org/en/OurWork/Environment/PSSAs/Documents/A24-Res.982.pdf, accessed 12 October 2015. For PSSAs, see also MEPC 68/21/Add.1, Annex 13, at p. 1; Annex 13, Resolution MEPC.267(68) (adopted on 15 May 2015), Amendments to the Revised Guidelines for the Indentification and Designation of Particularly Sensitive Sea Areas (Resolution A.982 (24)), available at http://www.uscG mil/imo/mepc/docs/MEPC68-report.pdf, accessed 7 May 2016.



marine life.53 Increased CO2 in the atmosphere means the production of more carbonic acid in the oceans, thus changing (i.e., reducing) the pH level of the oceans. Furthermore, the increase in atmospheric CO2 and other GHGs cause the ocean’s temperature to rise.54 MARPOL 73 does not define marine pollution, but defines a “harmful substance” in Article 2(2), similar to the LOSC definition.55 The LOSC allows Straits States to implement international conven-tions on marine pollution control in Straits and confers prescriptive jurisdic-tion for this purpose,56 but it negates enforcement jurisdiction during transit passage, which is neither to be suspended nor hampered.57 Strait States may take such appropriate enforcement measures where ships cause or threaten major damage to the marine environment of the Straits.58 However, the LOSC does not define the term “major damage.” By contrast, MARPOL Annex VI confers prescriptive and limited enforcement jurisdiction on States in ECAs established with IMO approval.

LOSC Part III: Meaning of the Term “Other Noxious Substances” A literal treaty interpretation of some provisions of LOSC Part III on marine pollution control excludes atmospheric shipping emissions from its scope, con-trary to the intention of the parties. Article 32(1) of the 1969 Vienna Convention on the Law of Treaties (VCLT) states that “a treaty shall be interpreted in good

53 Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Protection and Preservation of the Marine Environment, Repertory of International Legal Agreements Relating to Sections 5 & 6 of Part XII of the United Nations Convention on the Law of the Sea (United Nations, NY, 1990).

54 See for example, Causes of Climate Change, available at https://www3.epa.gov/climate change/science/causes.html, accessed 29 May 2016; Climate Change Indicators in the United States, available at https://www3.epa.gov/climatechange/science/indicators/oceans/ocean-heat.html, accessed 29 May 2016.

55 “Harmful substance” means any substance which, if introduced into the sea, is liable to create, amongst others, hazards to human health, harm to living resources and marine life. Article 3(a) provides a definition of the term “Discharge” in relation to harmful sub-stances or effluents, but states that it does not include dumping as understood in the London Convention 1972 (Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 29 November 1972, in force 30 August 1975) 1046 UNTS 120).

56 This is also supported by Nordquist et al. (eds) (n 45).57 See Article 233, cf. Articles 211–232. A Bernaert, Bernaert’s Guide to the United Nations

Convention on the Law of the Sea (Trafford Publishing; Canada; 2006).58 See Article 233, LOSC. Section 5 refers to International Rules and National Legislation

to Prevent, Reduce and Control Pollution of the Marine Environment, Section 6 refers to Enforcement and Section 7 refers to Safeguards.

106 George et al.


faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.59 Article 31 (4) VCLT states that “a special meaning shall be given to a term if it is established that the parties so intended.” According to Article 32 VCLT, recourse may be had to the preparatory work of the treaty and the circumstances of its conclu-sion, to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 is ambiguous or obscure, or gives a result which is manifestly absurd or unrea-sonable. Boyle states that the LOSC must be interpreted and applied in accor-dance with the normal rules of treaty law, including those which allow other agreements and rules of international law to be taken into account for this purpose.60 For a correct interpretation, reference is made to the preparatory works of the LOSC.

Do atmospheric shipping emissions of MARPOL Annex VI fall within the scope of Article 42, Part III of the LOSC?61 Article 42 (1) (a) regulates passage and Article 42 (1) (b) regulates marine pollution control by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and “other noxious substances in the strait.” National laws are not to be dis-criminatory or have the practical effect of denying transit passage. It is impor-tant that MARPOL Annex VI provisions fall within the terms of Article 42 (1) (b), allowing Straits States to interpret “other noxious substances” as includ-ing ships’ atmospheric emissions. The UNCLOS III Commentaries provide for supplementary means of interpretation which show that noxious sub-stances are meant to include substances other than oil.62 An earlier version of the Article submitted by the UK at the Second Session of UNCLOS III provides Straits States with a basis for making laws to control discharge of oil or other noxious substances.63 In the UK proposal, Straits States had prescrip-

59 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969, in force 27 January 1980) 1155 UNTS 332.

60 A Boyle, “Further Development of the 1982 Law of the Sea Convention: Mechanisms for Change”, available at http://www.research.ed.ac.uk/portal/files/11957086/BOYLE_A_Further_Development_of_the_1982_Law_of_the_Sea_Convention_Mechanisms_for_Change.pdf, accessed 13 October 2015.

61 Article 42, LOSC, provides that States bordering straits may adopt Laws and Regulations in respect of navigation, regulation of maritime traffic, and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait.

62 SN Nandan and S Rosenne (eds), UN Convention on the Law of the Sea 1982: A Commentary, vol. 2 (Martinus Nijhoff, Dordrecht, 1993) 369–375, at paragraph 42.10(c).

63 1974, A/CONF.62/C.2/L.3 (1974) Chapter III, Article 4: III Off. Rec. 183, 186 UK.



tive and enforcement jurisdiction to initiate legal proceedings against the impugned merchant vessel for failure to comply with international regula-tions concerning marine pollution (primarily from oil).64 The Private Group on Straits subsequently endorsed the UK proposal.65 An examination of the UNCLOS III Commentaries on Article 42 (1) (b) shows that the Article refers to “international regulations” and not to the domestic laws of States.66 Although the words “giving effect to” allow for interpretive discretion, Straits States can-not adopt regulations that are substantially different from, or more stringent than, the applicable international standards.67

Prescriptive and Enforcement Jurisdictional Powers of Straits StatesA “limited enforcement jurisdiction” in LOSC Article 233 enables States to deal with actual or threatened major damage to the marine environment. Article 233 refers to Article 42 1(a) and (b) on actual or threatened major damage to the marine environment of a strait.68 For this purpose, the Straits States tried, but were unsuccessful in their efforts, to introduce a technical minimum stan-dard for under-keel clearance of ships in relation to Article 233. Growing fears of capricious imposition of outrageous domestic laws were allayed as only international laws were to be enforced in straits used for international naviga-tion. Article 43 calls for co-operation by agreement between user and Straits States in the prevention, reduction and control of pollution from ships. Under Article 44, Straits States cannot hamper ships in transit or suspend passage and must publicise dangers to navigation or overflight they have knowledge of.

64 The UK proposal: (1) Subject to the provisions of this article, a straits State may make laws and regulations: (a) In conformity with the provisions of article 3 above (now article 41). (b) Giving effect to applicable international regulations regarding the discharge of oil,

oily wastes, and other noxious substances in the strait. (2)–(5) . . .65 Private Group on Straits, 1975 mimeo, article 4, reproduced in R. Platzöder, Third United

Nations Conference on the Law of the Sea: Documents, Volume IV (Oceana Publications, New York, 1983); that text, with some minor drafting changes, was incorporated in the ISNT Part II (Source 8) as Article 41; ibid., at p. 372.

66 See UNCLOS III, at paragraph 42.10(c).67 Nandan and Rosenne (n 62).68 For Statement relating to Article 233, in its application to the Straits of Malacca and

Singapore and the determination of the Under-keel Clearance of Ships (UKC) transiting those Straits with its specific reference to Article 42(1)(a), see A /CONF.62/L.145 (1982) XVI, Off. Rec. 250 (Malaysia) and Add. 1–8, ibid., at pp. 251–53.

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The prescriptive powers of Straits States under the LOSC are clearer than the enforcement powers.69 Straits States under Article 41 (1) and (2) can designate sea lanes and traffic separation schemes. Article 41 (3) mandates sea-lanes and traffic separation schemes in straits to conform to generally accepted interna-tional regulations. Article 41 (4) requires Straits States to present such propos-als to the IMO and Straits States enforcement commences only after formal adoption by the IMO. Article 41 (5) requires Straits States bordering a common strait to co-operate in the submission of joint proposals according to SOLAS Regulation V/8(f). The rules establishing vessel traffic services are found in IMO Resolutions A.851 (20) and A.857 (20), respectively. Article 41 (7) requires ships to observe sea-lanes in transit passage.

MARPOL 73 applies on board national flags and in maritime zones under national authority.70 MARPOL 73, Article 9 (3) on “Other treaties and inter-pretation” provides that the term “jurisdiction” shall be construed in the light of “international law in force at the time of application or interpretation of the present Convention” (i.e., MARPOL). “International law” is interpreted as a reference to the circumstances, safeguards, and geographical zones relat-ing to coastal, flag and port State jurisdiction. Some MARPOL provisions focus on monitoring and investigation of illegal discharges of harmful substances into the marine environment.71 Flag States implement the IMO Conventions on navigational safety and pollution control irrespective of the maritime zone the ship is in, except where different standards on safety requirements exist.72 Generally, the IMO Conventions do not regulate coastal State jurisdiction in the territorial sea, in straits used for international navigation, in archipelagic waters, and in the EEZ.73

69 See for example, LOSC Section 7 of Part XII, Articles 225, 226(2) and 228.70 See EU case no. C-308/06., ECJ ruling on 20 November 2007, Opinion of the Advocate

General. See The Queen, on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport. ECR 2008, I-04057.

71 Nordquist et al. (eds) (n 45) at p. 756. MARPOL 73/78 Annex VI, Chapter 2 on “Survey, Certification and Means of Control” in Regulation 11(6) provides that the international law regulating ship-based marine pollution in force at the time of application or inter-pretation of Annex VI, applies, mutatis mutandis, to the rules and standards set forth in Annex VI.

72 Nordquist et al. (eds), ibid.73 Maritime zones are not a key jurisdictional consideration for MARPOL as they are for

the 1969 Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Brussels, 29 Nov 1969, in force 6 May 1975) 970 UNTS 211; the 1973 Protocol



Designation of Special Mandatory Measures Part III LOSC does not provide for the designation of Special Mandatory Mea-sures or PSSAs. Article 211 (6) LOSC provides that Special Mandatory Measures can be adopted for the EEZ, allowing coastal States to designate sulphur and nitrogen ECAs with the assistance of the IMO. Coastal State enforcement is recognised under Article 220 (1–8) for violations of coastal laws for pollution control in the territorial sea (Article 21 (1)) and the EEZ of a state. Straits used for international navigation are excluded from the provision.

In MARPOL Special Areas, a higher level of protection from ship-based operational discharges of harmful substances is provided in MARPOL Annex I (Prevention of pollution by oil), Annex II (Control of pollution by noxious liq-uid substances), Annex IV (Prevention of pollution by sewage from ships) and Annex V (Prevention of pollution by garbage) from ships in enclosed or semi-enclosed seas, which may include parts of the territorial sea, the EEZ and per-haps even the high seas. About ten Special Areas have been designated under MARPOL Annexes I, II and V so far, where coastal States are required to provide reception facilities. Rules for the designation of Special Areas and Identification of PSSAs under MARPOL are found in IMO Resolution A.927 (22) of 2001 and in the IMO Revised Guidelines for the Identification and Designation of [PSSAs] by Resolution 982 (24), respectively. Twelve PSSAs have been designated, for example, on the Great Barrier Reef, Australia.74 So far, Special Areas or PSSAs have not been considered for the Malacca and Singapore Straits.

Port State Control to Eliminate Sub-standard Shipping Rules on port State control are set out in LOSC Article 218, which specifically excludes a reference to the regime of straits used for international naviga-tion in LOSC Part III. This LOSC Part III also does not provide for port State jurisdiction. MARPOL Articles 5 (4), 6 (2) and 7 (1) regulate port State control. Straits States exercise port State control under MARPOL where the authority of the port State extends to inspecting foreign ships that voluntarily come to its ports to prevent sub-standard ships from sailing. Port States can also insti-tute proceedings against the foreign flags in accordance with their national law. Articles 5 and 6 of MARPOL refer to certificates, inspections, detection of

Relating to Intervention on the High Seas in Cases of Pollution by Substances Other than Oil (London, 2 November 1973, in force 30 March 1983) 1313 UNTS 4; and enforcement of routeing measures adopted through the IMO. It may be possible to prosecute a MARPOL offence using criminal or administrative tools.

74 Nordquist et al. (eds) (n 45) at p. 818.

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violations and procedures to be taken by port States. Article 7 MARPOL pro-vides that undue delays should not be caused to ships.

Pursuant to IMO Resolution A.682 (17) of 1991, nine regional Memoranda of Understanding (MOUs) have been adopted to eliminate sub-standard shipping and promote safe, secure and efficient shipping in regional maritime jurisdic-tions. The port State control officers, through close coordination, verify that the condition of the ship and its equipment comply with the requirements of international regulations and standards under MARPOL and SOLAS as reflected in its domestic law. IMO Resolution A.787 (19) on Procedures for Port State Control (1995) set out the details on port State inspections, contraven-tions, detention and reporting requirements. When a foreign ship voluntarily enters a port, it implies acceptance by the foreign ship of the port State’s pow-ers to exert corrective jurisdiction in order to ensure compliance with IMO regulations.75 The port State is under a duty to provide reception facilities for the discharge of waste.76 MARPOL rules always apply, in port or at sea, to sur-vey and certification and detection of violations of international standards (of technical and discharge violations). The Resolution states that such inspec-tions must be consistent, leading to the recognition of deficiencies of a ship, its equipment, and its crew, and to the application of control procedures.77 Where “clear grounds” exist for believing that the condition of the ship or its equip-ment does not correspond substantially with the particulars of the certificates, the port State may detain the ship.78 The MOUs on Port State Control serve as a back-up to flag State implementation. One such example is the MOU on Port

75 Ibid., at p. 755.76 See also IMO-MEPC.1/Circ.834, 15 April 2014, “Consolidated Guidance for Port Recep-

tion Facility Providers and Users”, available at https://www.imo.org/en/OurWork/ Environment/PortReceptionFacilities/Documents/MEPC.1-Circ.834%20-%20Conso lidated%20Guidance%20For%20Port%20Reception%20Facility%20Providers%20And%20Users%20(Secretariat)%20(1).pdf, accessed 19 October 2015. Besides MARPOL 73/78, other provisions for marine pollution include, the International Convention for the Safety of Life at Sea, 1974, as amended; the International Convention on Load Lines, 1966 (London, 5 April 1966, in force 21 July 1968) 9159 UNTS 133; the International Convention on Standards of Training, Certification and Watch-keeping for Seafarers, 1978 (London, 7 July 1978) 1361 UNTS 2, as amended; and the International Convention on Tonnage Mea-surement of Ships, 1969 (London, 23 June 1969, in force 18 July 1982) 1291 UNTS 3.

77 IMO Resolution A.787 (19), available at http://www.imo.org/blast/blastDataHelper .asp?data_id=22559&filename=A787.pdf, accessed 19 October 2015.

78 Ibid.



State Control in the Asia-Pacific Region.79 The MARPOL provisions serve to implement the rules uniformly across the globe by Port State Control Officers. This is vital for Annex VI enforcement, especially for Straits States, as these States have no other means of controlling sub-standard shipping.

MARPOL Annex VI, Chapter 4

Annex VI comprises four chapters, of which Chapters 1–380 may be considered the first generation of environmental measures that serve to:

1. reduce emission from ships, 2. tighten emission limits, 3. designate SECAs, NECAs and PMECAs, and 4. prohibit deliberate emissions of ozone-depleting substances, which

include halons and chlorofluorocarbons (CFCs).

Chapter 4 may be regarded as the second generation of technical measures that serve to reduce air pollution through improving the energy efficiency of ship engines.81 With the entry into force of Chapter 4 on 1 January 2013, ships are required to have documentation showing an EEDI, an Energy Efficiency

79 Tokyo MOU, signed in Tokyo on 1 December 1993, available at http://www.tokyo-mou.org/, accessed on 27 April 2016.

80 For example, Chapter One, titled “General” has four regulations where Regulation One states that the provisions of this Annex are to apply to all ships, except where expressly provided otherwise in regulations 3, 5, 6, 13, 15, 18 and 19 of this Annex and found in the other Chapters.

81 For an earlier discussion on Annex VI, see MEPC 58th session, Agenda item 23, MEPC 58/23, 16 October 2008. Report of the Marine Environment Protection Committee on its fifty-eighth session, available at https://docs.imo.org/Shared/Download.aspx?did=51243, accessed 29 May 2016; for Annex 13 Resolution MEPC.176 (58)—Amendments to the Annex of the Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (Revised Marpol Annex VI); See MEPC 58/23/Add.1, available at https://www3.epa.gov/nonroad/marine/ci/mepc58-23-annexes13-14.pdf, accessed 29 May 2016; MEPC 58/23/Add.1, available at http://www.imo.org/en/OurWork/Environment/PollutionPrevention/AirPollution/Documents/177(58).pdf, accessed 29 May 2016.

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Operating Index (EEOI) and a SEEMP.82 Manufacturers have been building engines compliant with Chapter 4 standards since 2000. Installed marine die-sel engines with more than 130kW output power are subject to different tiers of NOx control based on the ship’s construction date. There are three Tiers to date. Tier I controls on NOx requirements are for existing pre-2000 engines; Tier II controls apply to all areas other than the North American ECA and the United States Caribbean Sea ECA. Tier III controls apply to specified ships in the North American ECA and the United States Caribbean Sea ECA. In October 2008, Tiers II and III were amended and new fuel quality requirements and emission standards for new engines were introduced beginning July 2010. Annex VI requires the application of more stringent limits on Tier III engines used in large ocean-going vessels within ECAs for improved sustainable mari-time transportation.

MARPOL Annex VI is examined from the following perspectives:

1. Designation of ECAs, SECAs and NECAs under Chapter 3. 2. Adoption of EEDI, EEOI and SEEMP standards under Chapter 4. 3. Port State control inspections under Chapter 2.

Designation of Emission Control AreasMARPOL Annex VI empowers States to designate SECAs and NECAs with more stringent controls on sulphur and nitrogen emissions for Tier III NOx emission standards in seas and port areas. It also covers PM for which no standards are mentioned. A SECA is meant to reduce SOx emissions from ships and control air pollution from SOx and its attendant adverse impacts on land and sea areas. SECAs are sea/port areas with stricter requirements for bunker fuel compared to other sea/port areas. Annex VI, Chapter 4 per se does not require reception facilities.

The Proposal for Criteria for designation of a SECA (Regulation 14, MARPOL Annex VI) states that where two or more Contracting States to the Protocol of 1997 have a common interest in a particular area, they should formulate a co-ordinated proposal, as set out in Appendix III of Annex VI. The proposal shall include: a clearly delineated area for the control of SOx emissions from ships;

82 IMO, “Air pollution from ships”, available at http://www.imo.org/OurWork/Environment/PollutionPrevention/AirPollution/Pages/Air-PollutioN aspx, accessed 30 August 2013. See also MEPC 68/21/Add.1, Annex 9, page 1 and MEPC 68-21-ADD.1 (E).doc, Annex 9, Updated Plan for the Work on EEDI Related Issues, available at http://www.uscg.mil/imo/mepc/docs/MEPC68-report.pdf, accessed 9 May 2016.



a description of the terrestrial and maritime areas at risk from the impacts of ship SOx emissions; an assessment of such areas; and SOx depositions and the attendant adverse impacts on the land and sea areas under consideration, such as the ecosystems, areas of natural productivity, critical habitats, water quality, human health, and areas of cultural and scientific significance, if applicable. The Proposal requires relevant information regarding meteorologi-cal conditions in the proposed area, in particular prevailing wind patterns, and on topographical, geological, oceanographic, morphological, and other condi-tions that may lead to an increased probability of higher localized air pollution and levels of acidification. The nature of the ship traffic in the proposed SECA, including the patterns and density of such traffic, are also required to be stated.

To sum up, the geographical limits of a SECA will include SOx emission and deposition from ships navigating in the proposed area, traffic patterns and density, and wind conditions. The sources of relevant data, including method-ologies used and the control measures of the proposing contracting States, shall be identified.83 The Achilles’s heel in Appendix III is found in paragraph 2.1, i.e., a co-ordinated proposal should be formulated where two or more Con-tracting States have a common interest in a particular area. This is a weakness as it is possible that States may have opposite common interests, thereby slow-ing down the process of formulating a coordinated proposal.84

Under Annex VI, Chapter 3, Straits States have a duty to propose to the IMO the establishment of SECAs (Regulation 14) and NECAs (Regulation 13) that tie in with such terrestrial control areas for the prevention of air pollution from ships. Regulation 14 provides that the sulphur content of any fuel used on board ships shall not exceed 4.5% m/m. The Regulations include caps on sul-phur content of fuel oil as a measure to control SOx emissions and, indirectly, PM emissions. Ships within SECAs using an exhaust gas cleaning system have a duty to ensure that waste streams from such equipment are not discharged into enclosed ports, harbours and estuaries, unless it can be documented by

83 Annex VI Regulations for the Prevention of Air Pollution from Ships, available at http://www.marpoltraining.com/MMSKOREAN/MARPOL/Annex_VI/app3.htm, accessed 28 December 2015.

84 See for example, MEPC 68/INF.22 (Malaysia) on Prospective PSSAs, concerning the protection of Pulau Kukup (Kukup Island) and Tanjung Piai (Cape Piai) which failed to receive endorsement at the IMO, Marine Environment Protection Committee; 68th session, Agenda item 21, MEPC 68/21, 29 May 2015, Report of the Marine Environment Protection Committee on its Sixty-Eighth Session, available at http://www.mpa.gov.sg/sites/pdf/mepc68_21_report_68sessioN pdf, accessed 28 December 2015.

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the ship that these will not adversely affect the States’ ecosystems, based upon criteria communicated by the authorities of the port State to the IMO. The sul-phur limits for fuel in a SECA before 1 July 2010 stood at 1.50% m/m, and at 1.00% m/m between 1 July 2010 and 1 January 2015. After 1 January 2015 it stands at 0.10% m/m. In other non-SECAs or global areas the figures are: before 1 July 2012—4.50% m/m; between 1 July 2012 and 1 January 2020—3.50% m/m and 1 January 2020—0.50% m/m, as shown in Table 2.85 It may be postponed to 2025.86

Where m/m refers to:

85 MARPOL 73/78, Annex VI, Regulations for the Prevention of Air Pollution from Ships, Technical and Operational Implications, Regulation 14, Sulphur Oxides and Particulate Matter available at http://www.dnv.com/binaries/marpol%20brochure_tcm4-383718.pdf, accessed 28 December 2015.

86 IMO, Special Areas available at http://www.imo.org/OurWork/Environment/Pollution Prevention/SpecialAreasUnderMARPOL/Pages/Default.aspx, accessed 24 June 2013.

Outside an ECA established to limit SOx and PM emissions

Inside an ECA established to limit SOx and PM emissions

4.50% m/m prior to 1 January 2012 1.50% m/m prior to 1 July 2010 3.50% m/m on and after 1 January 2012 1.00% m/m on and after 1 July 2010 0.50% m/m on and after 1 January 2020a 0.10% m/m on and after 1 January 2015

Note: ECA refers to an emission control area that includes both sulphur and PM emissions.a Depending on the outcome of a review, to be concluded in 2018, as to the availability of the

required fuel oil, this date could be deferred to 1 January 2025. Note: there is no particulate matter discharge standard. See MEPC 68/21/Add.1, Annex 5, p. 1, available at https://docs.imo .org/Category.aspx?cid=47&session=68, accessed 29 May 2016.

TABLE 2 Comparative sulphur discharge figures for a non-SECA and a SECA

m/m = weight (mass) of one component × 100% ormass of another

mass of one component × 100%total mass



IMO explained that:

SOx and particulate matter emission controls apply to all fuel oil, as defined in Regulation 2.9, combustion equipment and other devices on board, thus including main and auxiliary engines, boilers and inert gas generators. Different limits apply within [ECAs] so as to limit the emis-sion of SOx and particulate matter and those applicable outside such areas. Ships have to limit the maximum sulphur content of the fuel oils as loaded, bunkered, and subsequently used on-board. The fuel oil sulphur limits are expressed in terms of % m/m—that is by weight.87 They are subject to a series of step changes over the years, according to Regulations 14.1 and 14.4.88

Under Regulation 13, the control of NOx emissions from ships with “Tier III” engine standards will come into force within NECAs from 1 January 2021. MEPC guidelines were adopted under Regulation 13.2.2 of MARPOL Annex VI.89 Some regions which have implemented some aspects of Annex VI are: Baltic Sea (SOx), North Sea (SOx), North American (SOx and NOx and PM) and the United States Caribbean Sea ECA (SOx, NOx and PM).

EEDI, EEOI and SEEMP The EEDI, closely monitored by the IMO, is a technical design index that focuses on the hardware performance of a ship, its equipment and engines. It is less polluting and can be applied on new and retrofitted on old ships.90 EEDIs are being developed for the largest emitters and will soon be developed for all. The latter includes the most energy-intensive merchant cargo fleets, including 70% of emissions from new oil and gas tankers, bulk carriers, general

87 Explanation, available at http://www.imo.org/OurWork/Environment/PollutionPreven tion/AirPollution/Pages/Sulphur-oxides-%28SOx%29%E2%80%93-Regulation-14.aspx; accessed 9 December 2014.

88 Ibid., Explanation, available at http://www.imo.org/OurWork/Environment/PollutionPre vention/AirPollution/Pages/Sulphur-oxides-%28SOx%29%E2%80%93-Regulation-14 .aspx; accessed 9 December 2014.

89 IMO MEPC 65 Outcome (n 12).90 IMO-Korea International Cooperation Agency (KOICA) Project: Co-operation Agree-

ment between KOICA and IMO on “Building Capacities in East Asia Countries to Address Greenhouse Gas Emissions from Ships”, available at http://www.imo.org/Our Work/Environment/SpecialProgrammesAndInitiatives/Pages/KOICA-%E2%80%93 -IMOProject.aspx, accessed 24 May 2015. Distributed as CD Rom during MEPC 65.

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cargo, refrigerated cargo and container ships, as well as combination carriers (wet/dry bulk). Shipping industries are free to propose the best EEDI mecha-nisms that generate energy efficiency in new ships. The advantages of EEDI technology have been worked out. For example, by using the EEDI technology, a ship that can carry 18,000 TEUs generating 11,900kW of energy from 300 met-ric tons of fuel for maritime transportation will now use only 120 metric tonnes of fuel to transport 18,000 TEUs, saving approximately 40% in fuel consump-tion. With EEDI technology, the shipper can load more TEUs and travel faster. So, it is commercially more attractive, saving time and money for the shipper. Every five years, the requirements will be tightened. The IMO has explained how the EEDI works:

The EEDI provides a specific figure for an individual ship design, expressed in grams of carbon dioxide (CO2) per ship’s capacity-mile (the smaller the EEDI the more energy efficient the ship design) and is calcu-lated by a formula based on the technical design parameters for a given ship.91

The EEOI is an index measuring operations and is different from the EEDI. The operations of a ship are dependent on, for example, speed control,92 weather routeing,93 maintenance, optimum trim,94 and draught. Although speed and optimum utilisation of cargo spaces have different domains of application, together they contribute to a ship’s energy efficiency as indicated by the ship’s EEOI. Through these measures the IMO assists the shipping industry in the management of the environmental performance of ships.95 The EEOI enables operators to measure the fuel efficiency of a ship in operation and to gauge the effect of any changes in operation, for example, improved voyage plan-ning. The EEOI requires optimising each time a shipper burns fuel by taking a shorter route, and reaching the destination on time as well. As energy effi-ciency of shipping is increased, it will also emit less GHG-CO2 into the atmo-sphere. For purposes of determining shipping emissions of CO2, the EEOI is calculated using a formula with three main variables.

91 Ibid.92 For effective voyage plans and ‘slow steaming policy’ of container shipping companies,

see IMO-KOICA (n 90).93 Weather routing software, individual ship modelling and ‘virtual arrival’ for tank-

ers according to the contract for charter party and fuel savings and less emissions, and INTERTANKO and OCIMF views, see IMO-KOICA, ibid.

94 For importance of optimum trim on ships, see IMO-KOICA, ibid.95 IMO-KOICA, ibid.



As the IMO explains, this formula produces a ratio between the environmental cost of the emissions generated and the benefit to society of the cargo car-ried. It is expressed as tonnes of CO2 emitted for the transport of one tonne of cargo for one nautical mile. It is a Key Performance Indicator for the energy efficiency of an individual vessel and it should be used to monitor the effects of any new measures on board, such as frequent propeller cleaning. But it is still only a tool. However, the EEDI and EEOI for all ships have not been calculated by the IMO, as the EEDI and EEOI standards are not finalised and are subject to a phase-in period, after which standards will become definite.

The largest carriers of goods across the oceans have been considered for regulation.96 Under this regime, ships have the option of:

1. using low-sulphur fuel, or 2. engage in sea water scrubbing, an alternate technology, that cuts SOx and

PM by 75% followed by 3. catalytic reduction cuts of NOx by 90%, or 4. retrofitting old engines that reduce NOx on slow-speed engines by 20%

that is cheap, easy to fit and cost-effective, and 5. inserting in-engine controls that could cut NOx by 30%.97

For shipping companies in developing countries, the switch to such sophis-ticated shipping technology, EEDI and EEOI, is only possible with technical cooperation and technology transfer from ship and engine builders.98

Entry-into-force dates for the EEDI for new ships under construction have also been considered by the IMO: currently, there are flexibilities up to six and a half years after the entry into force on 1 January 2013 (i.e., until 1 July 2019), during which the IMO may waive this requirement.99 The EEDI is extended to roll-on roll-off (ro-ro) cargo ships (vehicle carriers), liquefied natural gas

96 IMO, “Technical and Operational Measures”, available at http://www.imo.org/OurWork/ Environment/PollutionPrevention/AirPollution/Pages/Technical-and-Operational Measures.aspx; accessed 12 September 2013.

97 Vagslid (n 24).98 Ibid.99 Emission Standards International: IMO Marine Engine Regulations, available at http://

www.dieselnet.com/standards/inter/imo.php; accessed 12 September 2013, information based in part on contribution by MF Pederson.

EEOI = Fuel consumed(ave) × Fuel carbon factor (C)Weight of cargo × Distance travelled

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(LNG) carriers, cruise passenger ships with non-conventional propulsion, ro-ro cargo ships and ro-ro passenger ships. Some ships are excluded.100 The IMO has also developed Guidelines for compliance with the EEDI requirements for bulk carriers, gas carriers, bulk head carriers, and containers to control atmo-spheric emissions from ships.101 At MEPC 66, held in early 2014, the Committee adopted the 2014 Guidelines on the method of calculation of the attained EEDI for new ships by Resolution MEPC.245(66), and the 2012 Guidelines on sur-vey and certification of the EEDI, as amended (Resolution MEPC.214(63)). The Working Group at MEPC 67, held in October 2014, were instructed to further develop and finalise the draft 2014 Guidelines on survey and certification after taking into account various country position papers.102 At MEPC 68,

100 For Resolution MEPC 215(63) on Guidelines for calculation of reference lines for use with the EEDI including the addition of ro-ro cargo ships (vehicle carrier), ro-ro cargo ships and ro-ro passenger ships and LNG carriers, see MEPC 63/23/Add.1 Annex 11, page 1, Resolution MEPC.215(63) adopted on 2 March 2012, Guidelines for calculation of reference lines for use with the Energy Efficiency Design Index (EEDI), available at http://www.imo.org/en/OurWork/Environment/PollutionPrevention/AirPollution/Documents/Technical%20and%20Operational%20Measures/MEPC.215(63).pdf#search=Resolution%20MEPC%20215%2863%29, accessed 9 May 2016.

101 IMO MEPC, 65th session, Agenda item 22, MEPC 65/22, 24 May 2013, Report of the Marine Environment Protection Committee on its sixty-fifth session, available at http://www .uscg.mil/imo/mepc/docs/MEPC65-report.pdf., accessed 29 May 2016.

102 IMO MEPC, 67th session, Agenda item 20, MEPC 67/20, 31 October 2014, Report of the Marine Environment Protection Committee on its sixty-seventh session, available at http://www.uscG mil/imo/mepc/docs/MEPC67-report.pdf, accessed 29 May 2016; MEPC 67/4/4—Guidelines on survey and certification of the Energy Efficiency Design Index (EEDI), Submitted by Denmark, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/4-4.pdf, accessed 11 May 2016; MEPC 67/4/13—Draft amendments to the draft 2014 Guidelines on survey and certification of the Energy Efficiency Design Index, Submitted by China concerning ships with dual-fuel engines, available at https://imo .amsa.gov.au/secure/papers/2014/mepc67/4-13.pdf, accessed 11 May 2016; MEPC 67/4/19—Proposal of draft amendments to the “Guidelines for the survey and certification of the Energy Efficiency Design Index (EEDI)”—examples of verification method of electrical efficiency for LNG Carriers having diesel electric propulsion system for the case using a value of more than 91.3%, Submitted by Japan and the Society of International Gas Tanker and Terminal Operators (SIGTTO) concerning survey and certification of EEDI for LNG carriers, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/4-19 .pdf, accessed 11 May 2016; MEPC 67/4/6—Amendments to Resolution MEPC.214(63), Submitted by the International Towing Tank Conference (ITTC), available at https://imo .amsa.gov.au/secure/papers/2014/mepc67/4-6.pdf, accessed 11 May 2016; MEPC 67/4/7—Information on the validation of the current correction methods in ISO 15016, Submitted by the ITTC, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/4-7.pdf,



further amendments for air pollution guidance and requirements were agreed103 and entrusted to working groups.104 Similarly, at MEPC 67, working groups were tasked with other technical matters, such as the development of Interim Guidelines to maintain the manoeuvrability of ships in adverse conditions105 and to review the status of technological developments under Regulation 21.6 of MARPOL Annex VI.106 Other developments include the establishment of an

accessed 11 May 2016; MEPC 67/4/8—Work progress on revision of ISO standard 15016:2002, Submitted by the International Standards Organization (ISO) and the ITTC, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/4-8.pdf, accessed 11 May 2016; MEPC 67/INF.16—Validation work of the “Iterative” method in the revised ISO 15016 by several organizations Submitted by the ISO, available at https://imo.amsa .gov.au/secure/papers/2014/mepc67/inf16.pdf, accessed 11 May 2016; MEPC 67/INF.12—Synchronization and Identification of Ship Shaft Power and Speed for Energy Efficiency Design Index Value, Submitted by the Republic of Korea, available at https://imo.amsa .gov.au/secure/papers/2014/mepc67/inf12.pdf, accessed 11 May 2016.

103 MEPC, 68th session, Agenda item 21, MEPC 68/21, 29 May 2015, Report of the Marine Environment Protection Committee on its sixty-eighth session, available at http://www .imla.co/sites/default/files/mepc_68-21_-_report_of_the_marine_environment_protection _committee_on_its_sixty-eighth_session_secretariat.pdf, accessed 29 May 2016; for Corri-gendum to Annex 25—Statements by delegations and observers, see MEPC, 68th ses-sion, Agenda item 21, MEPC 68/21/add.1/corr.1, 16 September 2015, Report of the Marine Environment Protection Committee on its sixty-eighth session, Corrigendum, available at https://www.maritimenz.govt.nz/IMO/Committees-sub-committees/MEPC-68-report-annex-25.pdf, accessed 29 May 2016; for Corrigendum to Agenda Item 5—Reduction of GHG emissions from ships, see MEPC, 68th session, Agenda item 21, MEPC 68/21/Corr.1, 16 September 2015, Report of the Marine Environment Protection Committee on its sixty-eighth session, Corrigendum, available at https://www.maritimenz.govt.nz/IMO/Committees-sub-committees/MEPC-68-report-annex-25.pdf, accessed 29 May 2016.

104 MEPC, MEPC 68/21/Add.1, Annex 8, p. 1; See also Annex 8 Resolution MEPC.263 (68), (adopted on 15 May 2015), available at http://www.uscg.mil/imo/mepc/docs/MEPC68-report.pdf, accessed 11 May 2016; Amendments to the 2014 Guidelines on the Method of Calculation of the Attained Energy Efficiency Design Index (EEDI) For New Ships, (Resolution MEPC.245 (66)), available at http://www.uscg.mil/imo/mepc/docs/MEPC68-report.pdf, accessed 11 May 2016.

105 See also MEPC 68/21/Add.1 Annex 7, page 1, Resolution MEPC.262 (68) (adopted on 15 May 2015) “Amendments to the 2013 Interim Guidelines for determining minimum propul-sion power to maintain the manoeuvrability of ships in adverse conditions (Resolution MEPC.232 (65), as amended by Resolution MEPC.255 (67))”, available at http://www.uscg .mil/imo/mepc/docs/MEPC68-report.pdf, accessed 11 May 2016.

106 MEPC 67/WP.1 at p. 29, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/wp1.pdf, accessed 11 May 2016.

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EEDI database, where data are presented in a format that maintains the ano-nymity of the ship.107 The EEDI and the EEOI are for new ships.

In a SEEMP, a ship has to be operated in an energy-efficient way, a respon-sibility shared between seafarers and others, for example, the company that operates the ship. The steps that may be taken in its fleet management include, amongst others, avoiding long voyages made in ballast and improving cargo handling capability so that loading and discharging takes less time.108 Each ship’s energy management can be optimised by the consumption and produc-tion patterns of energy of those on board, because unlike main engines, auxil-iary power runs 24 hours a day at sea and in port. In passenger ships, this goes up to 30% of total power consumption. For example, in passenger ships laun-dry could be operated at night on passage when other demand is low.109

In the implementation of SEEMP for shipping on an organised and practical basis, from January 2013 it is mandatory for every ship to have its own SEEMP. The SEEMP follows IMO guidelines for compliance, helps the industry improve its energy efficiency performance with each plan tailored to the characteristics of each individual ship, and adopts a four-step process of continuous improve-ment through planning, adoption of energy-efficient measures (EEMS), imple-mentation of a monitoring system, and evaluation of effectiveness.110 In SEEMP, each individual seafarer, with the support of the shipping company and shore-side operations, has the potential to make an impact.111 The guidance on the development of the SEEMP for new and existing ships incorporates best prac-tices for fuel-efficient ship operation, as well as guidelines for voluntary use of the EEOI for new and existing ships.112 Chapter 4 requires ships identified by IMO periodically to comply with emission reduction targets through EEDI.113 Together, the EEDI, EEOI and SEEMP enable ships’ atmospheric emissions to be cut down drastically.114

107 Ibid., at p. 30, accessed 11 May 2016; MEPC 67/INF.4 (Secretariat), available at https://imo .amsa.gov.au/secure/papers/2014/mepc67/inf4.pdf, accessed 11 May 2016.

108 IMO-KOICA (n 90).109 Ibid.110 Ibid.111 Ibid.112 IMO MEPC.1/Circ.684, available at http://www.imo.org/en/OurWork/Environment/

PollutionPrevention/AirPollution/Documents/Circ-684.pdf#search=mepc%2E1%2Fcirc%2E684, accessed 11 May 2016.

113 Ibid.114 Energy Efficiency Design Index, available at http://www.imo.org/OurWork/Environment/

PollutionPrevention/AirPollution/Pages/Technical-and-OperationalMeasures.aspx, accessed 30 August 2013.



Port State Control InspectionsPort State control inspections are laid down in the Rules on Compliance of Chapter 2 of MARPOL Annex VI entitled “Survey, certification and means of control.” Upon passing the surveys, the ship is issued an “International Air Pollution Prevention Certificate” by the flag State under Regulation 6 of Chapter Two which is valid for up to five years under Regulation 9 of Chapter Two. Or it may be issued by any other party to Annex VI at the request of the flag State under Regulation 7 of Chapter Two. It has the same force and effect as a certificate issued under Regulation 6, by the flag State. Non-State Parties to Annex VI cannot issue such a certificate (vide Regulation 8 of Chapter 2). Regulation 10 of Chapter 2 provides that a port State can detain a ship in a port or at an offshore terminal under the jurisdiction of another party to the Protocol of 1997 when its master or crew are unfamiliar with the operational requirements under Annex VI relating to essential ship-board procedures for the prevention of air pollution from ships. The ship is allowed to sail when it is Annex VI-compliant.

Likewise, under Annex VI, due process in Regulation 11 on “Detection of violations and enforcement” requires that when a violation of this Annex is detected, a report shall be forwarded to the flag State for any appropriate action under its national laws based on the evidence submitted for this pur-pose. It then imposes a duty on the flag State to show that the non-compliance has been rectified. Similarly, other States Parties to Annex VI may also inspect the ship if they receive reports from member States Parties. The flag State has to be informed of such actions. Compliance with and enforcement of these treaty obligations is through stopping a non-compliant ship from sailing or by invalidation of the Air Pollution Prevention Certificate issued by the flag State. Under the “NOx Technical Code,” the ship operator (not the engine manufac-turer) is responsible for in-use compliance.

MEPC 65 Debates on Resolution on Promotion of Technical Co-operation and Transfer of Technology Relating to the Improvement of Energy Efficiency of Ships to Enable the Implementation of Regulation 23 of MARPOL Annex VI

To facilitate the implementation of Annex VI, Chapter 4, the IMO adopted a Resolution on Technical Transfer, which may not be unique, as it is found in other multilateral agreements. This Resolution is adopted under Regulation 23 of Annex VI. It is in accord with LOSC Part XII, Section 3 on Technical Assistance (Articles 203 and 237). The Resolution assists developing States

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to implement the mandatory provisions of Chapter 4 on control of air pollu-tion from new and old ships through new ship design and machinery, as well as through better engine performance and efficiency, but it still allows some old practices. It requests the IMO, through its various programmes, to provide technical assistance in the transfer of energy-efficient technologies to devel-oping countries and assist with funding for capacity building, which includes training and education of personnel and establishment of new institutions to initiate monitoring and assessment of ships’ atmospheric pollution. In this con-text, an earlier precedent, the IMO-Korean International Cooperation Agency (KOICA) Project on Ships’ Energy Efficiency and GHG Emissions—Outputs and Outcomes of the First Major Technical Co-operation Project, is helpful. In this Resolution, the IMO agreed to the mitigation target on the amount of air pollution that is desirable and through this much-heralded Resolution agreed in principle on the optimal cost-effective policy to achieve this.115 A technical IMO Resolution is legally binding if the States Parties intend it to be so.

115 For brief overview of the first IMO Study on GHG Emissions from ships, see IMO MEPC 45, October 2000 (document MEPC 45/8). It was considered that GHG emis-sions could be partly reduced through technical and operational measures, available at http://www.imo.org/en/OurWork/Environment/PollutionPrevention/AirPollution/Documents/Greenhouse Gas Emissions.docx, accessed 9 May 2016; Further IMO action on GHG emissions control was guided by IMO Assembly Resolution A.963 (23) on IMO Policies and Practices Related to the Reduction of GHG Emissions from Ships, adopted in December 2003, available at http://www.imo.org/en/OurWork/Environment/PollutionPrevention/AirPollution/Documents/A.963_23.pdf#search=IMO%20Assembly%20Resolution%20A%2E963%2823%29, accessed 9 May 2016; For background information see, MEPC 62—resolution MEPC.203 (62), available at http://www.imo .org/en/OurWork/Environment/PollutionPrevention/AirPollution/Documents/203(62) .pdf#search=MEPC%2E203%2862%29, accessed 9 May 2016; MEPC 65/4/1—Draft MEPC resolution on Promotion of Technical Co-operation and Transfer of Technology relating to the improvement of energy efficiency of ships, Note by the Secretariat, available at https://imo.amsa.gov.au/secure/papers/2013/mepc65/4-1.pdf, accessed 11 May 2016; MEPC 65/4/25 Comments on the draft MEPC resolution on Promotion of Technical Co-operation and Transfer of Technology relating to the Improvement of Energy Efficiency of Ships, Submitted by the Russian Federation, available at https://imo.amsa.gov.au/secure/papers/2013/mepc65/4-25.pdf, accessed 11 May 2016; MEPC 65/4/33—Draft Compromise MEPC resolution on Promotion of Technical Co-operation and Transfer of Technology relating to the improvement of energy efficiency of ships, Submitted by South Africa, available at https://imo.amsa.gov.au/secure/papers/2013/mepc65/4-33.pdf, accessed 11 May 2016; MEPC 65/22—Report of the Marine Environment Protection Committee on its Sixty-Fifth Session at p. 22–23, available at https://imo.amsa.gov.au/secure/papers/2013/mepc65/22.pdf, accessed 11 May 2016; and Third IMO GHG Study 2014 available at http://



Debates on the Draft IMO Resolution and Summary of Key Points of Disagreement

The debates centred around the following arguments: first, should technical assistance be given to developing States only or also cover developed States and, second, should the politics of climate change be kept apart from this Resolution or were the challenges of climate change in the UNFCCC,116 the Kyoto Protocol to the UNFCCC,117 and the CBDR principle an intrinsic part of this Resolution as atmospheric shipping emissions were part of the global GHG discussions of which IMO was now in charge. MEPC member States, depend-ing on their country position towards the climate change issue, were careful to examine each proposal to see what it actually meant and how it served the purpose of technology transfer in Annex VI. This section explores these views to better understand the technical Resolution.

US Proposal and Japanese Counter-ProposalThe US proposal at MEPC 65 (MEPC 65/4/19), which differed from their submis-sion to MEPC 64, required more precision in energy efficiency measures and for that purpose the US changed the efficiency metric to joules of fuel energy/service hour. It suggested a potential change to what the MEPC was measur-ing in terms of CO2 emissions (Joules vs CO2 emissions). In the opinion of the US, such a position allowed for “uniform quantity even across different fuels.” Where ships wanted to use more sophisticated methods, that would be accept-able as well. It was important to make sure that data were fed to an electronic database coordinated by an outside organisation, keeping the administrative burden on port States to a minimum. In the US proposal, flag States would check this periodically, so as not to have to set up machinery to survey the data again and use existing EEDI certificates. In this manner, there would be limited use of port State controls. The US was looking for support to work out the technical details.

Japan countered the US proposal by challenging the premise of the ques-tion, that is, the US was increasing energy efficiency only to reduce CO2 emis-sions. The US replied that it was a more straightforward measurement method.

www.imo.org/en/OurWork/Environment/PollutionPrevention/AirPollution/Pages/Greenhouse-Gas-Studies-2014.aspx, accessed 11 May 2016.

116 United Nations Framework Convention on Climate Change (n 15).117 Kyoto Protocol to the United Nations Framework Convention on Climate Change (n 16).

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Japan responded that they would not object to using CO2 if that was the wish of the Committee, but this was just another option.118

The MEPC was asked to consider the metric as the US had defined it. The hard questions intended to be answered by the expert group in this debate were:

• Which ships would be covered and would they all be covered by all phases of the proposal?

• Would all ships face the same required reduction? • What happened if a ship was found to be out of compliance? What were the

consequences? • How did the proposal take early adopters into account? • Did it make sense to completely remove any measure of cargo carried? • Why were service hours chosen over other potential alternatives? • Would not a measure based on service hours create an incentive to reduce

payload or have more ballast legs?

The final thoughts on the draft MEPC Resolution was that a phased approach was a cautious one where the amendments were carefully written. If the pilot phase revealed a problem, then it had to be fixed before the standards became mandatory. Relevant to the industry, data collection was the foundation of the proposal, which included opportunities for adjustments to be made to the pro-gram as necessary and on the basis of mandatory reviews.

MEPC Working Group The MEPC Working Group worked on MEPC document 65/J/8 and exam-ined MEPC document 65/4/1, which dealt with the Draft MEPC Resolution on Promotion of Technical Co-operation and Transfer of Technology relating to the improvement of energy efficiency of ships. The Executive Summary of that document describes the background and reproduces the text of draft MEPC Resolution as discussed at MEPC 64. Two options were provided in this document.

Option One agreed that developed States should provide the necessary financial, technological and capacity-building support through a variety of ways for developing States to enhance the means of implementation of

118 For “Comments on document MEPC 65/4/19 on enhancing energy efficiency in interna-tional shipping submitted by Belgium, Canada, Denmark, Germany, Japan, Norway and the United Kingdom”, see IMO MEPC 65/4/30, 22 March 2013, available at https://imo .amsa.gov.au/secure/papers/2013/mepc65/4-30.pdf, accessed 11 May 2016.



Chapter 4 of MARPOL Annex VI. Option 2 (paragraph 6) was similar to the South African proposal. Option 2 requested member states to provide support to all States that requested assistance in EEDI technology transfer, research and development, training and exchange of information and technical coop-eration for improvement of energy efficiency for ships (MEPC 64/4/1, Annex page 3).

South African Proposal and Responses: (IMO Audio, 13 May 2013, Afternoon Session and 14 May 2013 Morning Session)

Against the MEPC document 65/4/1 that triggered much debate on the con-tents in these two Options, South Africa submitted a compromise document entitled “Draft Compromise MEPC Resolution on Promotion of Technical Co-operation and Transfer of Technology relating to the improvement of energy efficiency of ships”—MEPC 65/4/33, 22 March 2013 and an amend-ment to this Draft Compromise MEPC resolution, MEPC 65/4/33/Corr.1, 16 May 2013 which amended preambular paragraph 3 of the Draft Resolution which took cognizance of principles such as the no-more favourable treatment and CBDR. The reference to developed nations, technical co-operation, technology transfer and respect for intellectual property rights were treated differently. The South African middle ground met with a lot of support. The USA, the UK, Canada, Denmark, Nigeria, Japan, Finland, Ireland, Bolivia, Marshall Islands, Sweden, Republic of Korea, Belgium, Singapore, Cyprus (modified), Mexico, Russia, Estonia, Chile, Brazil, Italy, Togo, Ghana, Bangladesh, Netherlands, and Australia supported the South African proposal as a middle ground, even though many of them believed that technical assistance through the IMO is not confined to developing States, but is also applicable to developed States.

India believed that this proposal represented a fundamental deviation from the spirit and letter of the UNFCCC and the CBDR and went against the funda-mental principle of climate change. However, India, Saudi Arabia, Argentina, Angola, Egypt, Peru, Poland, and Venezuela had differing opinions on the sub-ject. Brazil did not agree with the Cyprus suggestion to use the South African text as the basis, because it would negate everything that had been done so far. MEPC document 65/4/1 was the result of hard work by the delegates and so Brazil was not prepared to abandon this text. Brazil maintained that the fun-damental paragraph of that document must remain as 65/4/1 and it should be maintained as the base text. As technical assistance was expected from devel-oped States, Brazil was prepared to go along with the Chilean delegation who proposed the addition of “developed States and member States with an ability to do so,” as it was a positive step towards developing a text. Singapore consid-ered that the phrase “Member States with an ability to do so” was a concrete

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measure and could provide a concrete deliverable, which gave weight to this resolution. India had earlier pointed out that at the UNFCCC and at the IMO, the member States were by and large the same, so their positions/stances could not be different between the two.

The Chairman had earlier pointed out that consensus was not unanimity and noted that support for Document 65/4/1 was split right down in the middle in terms of support. Those who preferred the South African proposal preferred Option 2 and others Option 1. The majority in a ratio of 19:9 could live with the South African proposal. The Chairman agreed that although it was not ideal, one could live with the compromise text. The discussion focussed on Chile’s suggestion, which urged developed States and member States with the ability to do so to find their way to a compromise text. Brazil noted that the South African proposal was weaker than Regulation 23 and therefore wanted some-thing more strongly worded, to which the Chair replied that Regulation 23 was mandatory and it would always remain strongly worded. China reminded the meeting that when considering the implementation of MARPOL Annex VI, China requested technical and financial assistance for developing countries. It was also stressed that in the future, this Annex would be relied on for financial and technical assistance to developing countries. All these aspects have not been reflected in this resolution. China, India and Brazil were similarly aligned. India did not want climate change discussions deviating between one forum and another by not abiding by the principles of the UNFCCC and the Kyoto Protocol.

The Chairman stated that the Secretariat’s document 65/4/1 would be the basis of the final Resolution that would take into account the hard work put in by Russia and South Africa for compromises in other paragraphs. Russia pointed out that their document was based on the Secretariat’s document and therefore contained nothing new. China pointed out that the new text would be based on the Secretariat’s text, and on the Russian and South African pro-posals. China and India pointed out that they too had opinions of their own and were happy to discuss them in the ensuing Working Group deliberations. The amalgamated text was then considered.

On the last day of the Conference the developed and developing States did not agree on technology transfer as reflected in document J/10. The Chairman gave the States several options on technology transfer, as the States were basi-cally agreed on this, but it needed fine-tuning. At this point, the Chairman felt it was unfair to drop the work and start from scratch. Instead it was suggested that existing paragraphs would be used and solutions would be found on the placeholders (those bracketed terms and phrases). Some of the suggested changes in J/10 were to use the term “Being cognisant” in the preamble which



would connect all the principles effectively, rather than the term “enshrined” which may not reflect the status quo. Arguments on this point had a certain circularity (See IMO Audio, Friday 17 May 2013, MEPC 65/22, Annex 5, pp. 1–2). The Chairman said that the Japan/US/Australia joint statement would allow ‘us’ (the MEPC) to move forward constructively on the important substantive work ahead. This resolution called for support actions that would implement obligations under Regulation 23 of Chapter 4, Annex VI. They have always been committed to capacity building to enhance capacity of ships and will actively engage in the ad hoc working group on the transfer of technology and enable access to it. The move forward was on the basis of the Chairman’s under-standing that the fourth preambular paragraph expressed understanding—it contained principles that were relevant to the Convention. Under both the IMO and MARPOL Conventions, the principles of non-discrimination and no-more-favourable treatment apply. Now specifically re the US, as a country implementing commitments under the UNFCCC and not the Kyoto Protocol, the US would not associate itself with the reference to the Kyoto Pro-tocol in this paragraph (See IMO Audio, Friday, 17 May 2013 and MEPC 65/22, Annex 5, p. 3).

Denmark, the Netherlands, and the UK appreciated the efforts, supported the resolution generally, and welcomed the operative paragraphs on technical co-operation in order to assist developing member States to comply with the new resolution. It was not an acceptance of the Conventions other than those within the IMO; only the latter should govern the work of the IMO. Neither did it accept that the UNFCC principles (CBDR and capabilities) and its Kyoto Protocol should be used in IMO Regulations (See IMO Audio, Friday, 17 May 2013 and MEPC 65/22, Annex 5, p. 5).

India endorsed its views that sustainable development was the only way for-ward to address these climate change issues. India thanked developed States for realising the importance of the mention of these Conventions. By accepting the UNFCCC and CBDR, India said they were recognising the historical realities of the developed and developing countries in the global environmental situ-ation and the current realities. The same position was adopted by India in all fora. It strongly requested mechanisms to assess and monitor the implementa-tion of this resolution so that it reached developing nations. India pointed out that development must remain at the centre of the global discourse, should not impose further burdens, and must not impoverish further. It cited the prin-ciple of equity—convergence in per capita emissions. India concluded that the first collective step towards this and implementation of the resolution would also take place in the same spirit (See IMO Audio, Friday, 17 May 2013 and MEPC 65/22, Annex 5, pp. 5–6).

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Norway was pleased that it set an excellent standard for true global co-oper-ation and adoption of a better co-operation agreement re climate change re air pollution (See IMO Audio, Friday, 17 May 2013 and MEPC 65/22, Annex 5, p. 7). Argentina approved the strengthening of international law through this process. However, it emphasised the need to have a correct translation of the word enshrined—‘consegrado’ (See IMO Audio, Friday, 17 May 2013 and MEPC 65/22, Annex 5, p. 8)

China tried hard to make a concession/sacrifice in the position of many countries. China was especially concerned over the intellectual property (IP) issue, because the protection of the Intellectual Property rights is of great importance for technology transfer as it would affect technology transfer. Therefore, China hoped that all delegations present would try to co-operate in future to implement this resolution which reflected many years of hard work. The resolution introduced the CBDR principle in the text. This had to provide a very good foundation for further consideration on GHG emissions. China was willing to, under this principle, to actively participate in the con-versation in relation to GHG emissions. Special mention was made of the US and Denmark’s statements that were in the process of the negotiation. China felt their suffering during the discussion and expressed appreciation on the finalisation of the resolution. It hoped that everyone would keep this spirit of compromise and guide the IMO further in the GHG emission reduction. China also requested the inclusion of its statement in the final report (see IMO Audio, Friday, 17 May 2013 and MEPC 65/22, Annex 5, pp.4–5).

Brazil said that the express cognisance of the UNFCCC and Kyoto Protocol, in particular the principle of CBDR, is an important step for ensuring consis-tency of climate change actions under IMO, in relation to the international climate change regime. It also pointed out that the adoption of the techni-cal resolution was a clear signal that the IMO rendered its full support to the international response to climate change and the UNFCCC process, which was particularly relevant to the Durban Platform on Enhanced Action, to conclude the 2015 agreement under that Convention, applicable to all parties.119 It has

119 See Report of the Marine Environment Protection Committee on its 65th Session, MEPC 65/22, 24 May 2013 and for Statements by the Chair of the Committee and Delegations of Argentina, Australia, Brazil, Canada, Chile, China, Denmark, Japan, India, The Netherlands, Nigeria, Norway, Peru, Saudi Arabia, The United Kingdom, The United States and Venezuela on Resolution MEPC. 229 (65) On Promotion of Technical Cooperation and Transfer of Technology Relating to the Improvement of Energy Efficiency of Ships, see MEPC 65/22, Annex 5. For the Brazilian Statement see p. 5 of this document, avail-able at http://www.uscg.mil/imo/mepc/docs/MEPC65-report.pdf, accessed 11 May 2016;



now entered a phase for the implementation of technical measures—already adopted—and must focus on this challenge. Developed countries must pro-vide the financial and technical support to developing countries to increase these standards. Brazil also requested the inclusion of its statement in the final report, (see IMO Audio, Friday, 17 May 2013 and MEPC 65/22, Annex 5, p.4).

Canada focussed on the operative substance of this resolution and said they had been working with Finland and others in moving forward with capacity-building activities, building on the excellent work of KOICA and the IMO Secretariat; it was willing to speak to them about this. Canada also aligned itself with the US statement (see IMO Audio, Friday, 17 May 2013 and MEPC 65/22, Annex 5, p. 4).

Venezuela pointed out that its position and its concern about proceeding with this had been clear since inception. It aligned itself with China and at the same time acknowledged the great efforts by all parties. Venezuela maintained its commitment to ensure that all parties were as satisfied as possible with this result. It congratulated everyone in this herculean process, especially the Secretariat, member States, the leader of this committee and the Chairman. The UNFCCC and its Kyoto Protocol were the only instruments which were universal and binding in the area of climate change. Venezuela associated itself with the Argentinean comment on the use of the appropriate terminol-ogy (see IMO Audio, Friday, 17 May 2013 and MEPC 65/22 at p. 24, paragraph 4.14; MEPC 65/22, Annex 5, p. 8).

Sweden stressed that technical co-operation and technology transfer for the improvement of energy efficiency of ships and their application of Regulation 23 of Chapter Four, Annex VI were high-priority concerns for the nation. It took the commitment according to Regulation 23 very seriously and therefore Sweden decided to donate USD$25,000 to finance measures under Regulation 23 (see IMO Audio, Friday, 17 May 2013 and MEPC 65/22 at p. 24, paragraph 4.15).

Saudi Arabia looked forward to further co-operation with the IMO to fur-ther activate this resolution through respecting previous resolutions (see IMO Audio, Friday, 17 May 2013). Peru underscored the fact that as it was vulnerable to the effects of climate change, it was in solidarity with the multilateral effect which was in keeping with the UNFCCC. It acknowledged the recent adop-tion of this resolution by acclamation, the work on meaningful measures to reduce these emissions and the climate of co-operation and friendship which prevailed between each and every group (see IMO Audio, Friday, 17 May 2013).

See also all IMO audio sessions including IMO Audio, 13 May 2013, afternoon ses-sion and 14 May 2013 morning session, available at https://docs.imo.org/Category .aspx?cid=47&session=65&dtid=8, accessed 18 May 2016.

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Chile was confident that this resolution would open a new chapter in the annals of the IMO and was gratified at the content of the revised document, as it reflected the spirit of co-operation which had to prevail in the IMO (see IMO Audio, Friday, 17 May 2013).

The Secretary-General of IMO pointed out that a landmark resolution was achieved. The IMO was a forum for co-operation, coordination and policy that would form the basis for international standards. In the last five (5) years, there has been a demonstration of some difficulty in this debate and finally the issue of technical transfer for energy efficiency under MARPOL by acclamation was achieved. He praised all efforts and expressed appreciation at the spirit of co-operation on the anniversary of the IMO headquarters and assured everyone that he would put in his utmost effort to support implementation of the reso-lution (see IMO Audio, Friday, 17 May 2013).

This Resolution could work along the lines of the IMO-KOICA Project on Ships’ Energy Efficiency and GHG emissions—Outputs and Outcomes of the First Major Technical Cooperation Project (2011–2013). It focussed on technical co-operation and capacity-building needs. Under the IMO-KOICA Partnership, the IMO submitted a proposal for capacity-building partnership and received a grant of US$700,000 from KOICA, from May 2011–April 2013. Learning from the IMO-KOICA experience is necessary as Annex VI implementation is likely to lead to a new management approach for the Straits that might reveal gaps in personnel/capacity-building in the critical mass of scientists, administra-tors and ocean managers in the Straits States. From an industry perspective, to address the operational measures for energy efficiency, the shipping industry in the three Straits States would probably need to engage the company operat-ing the ship and its seafarers to co-operate in these measures to achieve signifi-cant benefits.120

The Way Forward

As Singapore, Malaysia and Indonesia have ratified MARPOL Annex VI, they are required to submit a coordinated proposal for the designation of SECAs and NECAs in the Straits to the IMO, set up an administrative mechanism and adopt national legislation implementing Annex VI provisions. The national legislation must reflect the MFN principle so that non-State parties to MARPOL

120 These measures are for example, auxiliary electrical route management, slow steaming, cargo capacity utilisation, and just in time operation, source: IMO-KOICA (n 90).



Annex VI would not be in a more favourable position than States Parties.121 Being flag States, they are required to implement EEDI regulations on their ships which are above 400 grt and each ship must possess an EEDI certificate which shows its energy efficiency in terms of carbon, sulphur and nitrogen atmospheric emissions. This will also include an EEDI calculation for:

• ro-ro cargo ships (vehicle carriers); • cruise passenger ships with non-conventional propulsion; • LNG carriers; • ro-ro passenger ships; • ships not propelled by mechanical means; and• establishment of an EEDI database and energy efficiency measures.

Administrative Authority for the Straits The practical implementation of Annex VI in the Straits requires setting up an administrative and technical authority responsible for MARPOL Annex VI. This invites a discussion of four matters, namely, the role of the current Tripartite Technical Experts Group of the Straits, the future agency for pollution preven-tion (to be named the Straits Pollution Prevention Authority), the designation of ECAs, technology transfer and the new data collection system for measuring fuel consumption of ships.

The Tripartite Technical Experts Group122 and the Straits Pollution Prevention Authority

Established in 1975, the Tripartite Technical Experts Group (TTEG) com-prises experts from the maritime administrations of Indonesia, Malaysia and Singapore to promote navigational safety, protect the marine environment, and facilitate the movement of ships in and through the Straits. The three Straits States, referred to as ‘littoral States,’ have introduced:

1. the Routeing System which incorporates a Traffic Separation Scheme (TSS) to enhance navigational safety and marine environmental protec-tion in the Malacca and Singapore Straits. Approved by the IMO in 1977,

121 SY Snyder, “EPA’s Category 3 Marine Emissions Standards: Mimicking MARPOL Annex VI or Mocking the Clean Air Act” (2005) 71(2) Brooklyn Law Review 1065–1107.

122 Annex B Factsheet on the Tripartite Technical Experts Group, available at http://www .mpa.gov.sg/sites/images/pdf_capture/annexb_270510.pdf, accessed 24 July 2015.

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it was implemented in 1981. The Straits States also installed new aids to navigation to support the TSS.

2. In 1993, the mandatory ship reporting system (or STRAITREP) was intro-duced in the Straits; it was implemented in 1998. Through this effort, shore-based authorities can update transiting ships on the traffic situa-tion and assist in search and rescue responses in the Straits.

3. In 2007, the Co-operative Mechanism on Safety of Navigation and Environmental Protection of the Malacca and Singapore Straits was introduced as a co-operative measure between user States and key stake-holders for navigational safety and marine environmental protection of the Straits. The TTEG does not seem to have adopted any anti-pollution control measures under LOSC Article 42 (1) (b). In addition, if the States Parties re-consider the scope of the TTEG for marine pollution control based on new geo-political factors, then setting up The Straits Pollu-tion Prevention Authority may be considered. Its scope would cover the Malacca and Singapore Straits for the implementation and enforcement of MARPOL Annex VI and could include other anti-marine pollution conventions and protocols. The new authority should also undertake port State control. The human, institutional and technological capacity needs of this authority would need to be addressed with assistance of the IMO and other international, regional, and non-governmental organisa-tions and the industry. The duration of this entity could be in perpetuity until otherwise decided, with financial assistance from the Straits States and perhaps flag States.

Designation of Emission Control AreasMEPC 68 has set out the criteria for the designation, implementation and oper-ationalisation of the ECAs for SOx, NOx and PM. For the designation of ECAs, such as SECAs and NECAs, in the Straits, the three Straits States will need IMO approval and assistance through technology transfer. For examination of the SOx and PM content, the Straits States are required to develop the critical mass of scientists, administrators and ocean managers. For the discharge of substan-tive obligations under MARPOL Annex VI, the proposed Authority could seek IMO’s assistance for: capacity-building; conduct of workshops; development of training tools; technical assistance in the transfer of energy-efficient technolo-gies; and contributions from various organisations to enhance the effective implementation of Chapter 4 of MARPOL Annex VI.123 The proposed authority

123 See MEPC 61/5 for reduction of GHG emissions from Ships: Preliminary Assessment of Capcity-Building implications, Note by Chairman, available at https://docs.imo.org/Category.aspx?cid=47&session=61, accessed 2 June 2016.



could benefit from IMO’s Ad hoc Expert Working Group on the Facilitation of Transfer of Technology for ships (IMO: AHEWG-TT) to study Annex VI effects and the new data collection system to be established to measure fuel con-sumption of ships.124

New Data Collection System for Measuring Fuel Consumption by Ships

MEPC 67 considered the basics of a data collection system for fuel consump-tion by ships125 to track and verify the efficiency gains in the sector and to

124 IMO MEPC 65/22, Annex 4, at p. 2; MEPC 67/WP.1 at p. 32. At MEPC 67, the AHEWG-TT highlighted the significant progress it had made in holding regional workshops organised by the Secretariat to support capacity building in relation to technology transfer, encour-aging Member States where possible to make further contributions in this regard.

125 See the following MEPC documents for submissions: Further Technical and Operational Measures For Enhancing Energy Efficiency of International Shipping: Mandatory oper-ational efficiency standards: Should the IMO pursue development of fleet-wide opera-tional efficiency standards? Submitted by the Baltic and International Maritime Council (BIMCO), Cruise Lines International Association (CLIA), International Chamber of Shipping (ICS), International Association of Dry Cargo Shipowners (INTERCARGO), International Association of Independent Tanker Owners (INTERTANKO), International Parcel Tankers Association (IPTA) and World Shipping Council (WSC), MEPC 67/5, avail-able at https://imo.amsa.gov.au/secure/papers/2014/mepc67/5.pdf, accessed 11 May 2016; MEPC 67/5/1—Submitted by the European Association of Internal Combustion Engine Manufacturers, (EUROMOT), available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/5-1.pdf, accessed 11 May 2016; MEPC 67/5/2 Report of the Correspondence Group on Further Technical and Operational Measures for Enhancing Energy Efficiency of International Shipping, Submitted by Cyprus, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/5-2.pdf, accessed 11 May 2016; MEPC 67/INF.18 Supplement to the Report of the Correspondence Group on Further Technical and Operational Measures for Enhancing Energy Efficiency of International Shipping, Submitted by Cyprus, avail-able at https://imo.amsa.gov.au/secure/papers/2014/mepc67/inf18.pdf, accessed 11 May 2016; MEPC 67/5/3—Proposal for the application of monitoring methods for fuel con-sumption and CO2 emissions from international shipping, Submitted by the Republic of Korea, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/5-3.pdf, accessed 11 May 2016; MEPC 67/INF.19—Greenhouse gas emissions monitoring system of Korea Shipowners’ Association, Submitted by the Republic of Korea, as advanced by the Korean Shipowners’ Association, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/inf19.pdf, accessed 11 May 2016; MEPC 67/5/4—Further consideration on the development of a data collection system to enhance energy efficiency of international shipping, Submitted by Japan, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/5-4.pdf, accessed 11 May 2016; MEPC 66/21, Report of the Marine Environment Protection Committee on its Sixty-Sixth Session, available at https://imo.amsa.gov .au/secure/papers/2014/mepc66/21.pdf, accessed 11 May 2016; MEPC 66/4/6—Further

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assess the need for further efficiency measures. The purpose and use of the data were to be determined before the data collection system was confirmed. It was to be voluntary without limiting the freedom of operation of ships. An alternative view was that the data collection system should be mandatory because the success of any system depended on full global participation and the quality of data was more important than quantity. However, this matter is still under consideration.126

Conclusion

This article examined the protection of the Malacca and Singapore Straits from ships’ atmospheric emissions through the implementation of MARPOL Annex VI as a comparative study of several parameters between the LOSC and MARPOL Annex VI, and it showed that the robust provisions of MARPOL Annex VI were more promising in this regard. For purposes of implementa-tion and enforcement of the legal requirements of MARPOL Annex VI, the

details of possible metric options to develop further technical and operational measures for enhancing the energy efficiency of international shipping, Submitted by Germany and Japan, available at https://imo.amsa.gov.au/secure/papers/2014/mepc66/4-6.pdf, accessed 11 May 2016; MEPC 67/5/5—Comments on document MEPC 67/5/2 on the report of the Correspondence Group on Further Technical and Operational Measures for Enhancing Energy Efficiency of International Shipping, Submitted by Canada, Denmark, Germany, Japan, Netherlands, Norway, the United Kingdom and the United States, avail-able at https://imo.amsa.gov.au/secure/papers/2014/mepc67/5-5.pdf, accessed on 11 May 2016; MEPC 67/5/6—Operational consequences of operational efficiency standards, Submitted by INTERFERRY, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/5-6.pdf, accessed on 11 May 2016; MEPC 67/5/7—The role of transparency in regulation and the promotion of economic activity: A background document for IMO and the shipping sector, Submitted by the Clean Shipping Coalition, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/5-7.pdf, accessed 11 May 2016; MEPC 67/5/8—Transparency will drive ship efficiency and help reduce costs, Submitted by the Clean Shipping Coalition, available at https://imo.amsa.gov.au/secure/papers/2014/mepc67/5-8.pdf, accessed 11 May 2016.

126 See Document titled Marine Environment Protection Committee, 68th session, Agenda item 21, MEPC 68/21/Add.1, 5 June 2015, for Report of the Marine Environment Protection Committee on its Sixty-Eighth Session (MEPC 68/21), Annex 25: Statements by Delega-tions and Observers, at MEPC 68/21/Add.1 Annex 25, pages 6–7 for Statement by the Del-egation of China and pages 8–9 for the Statement by the observer from IPTA, available at http://www.imla.co/sites/default/files/mepc_68-21_-_report_of_the_marine_environment_ protection_committee_on_its_sixty-eighth_session_secretariat.pdf, accessed 29 May 2016.



establishment of a new authority, the Straits Pollution Prevention Authority, was considered, with input from the IMO, as greater scientific knowledge was required in the designation of ECAs, because it is the sum total of the national and international efforts that will succeed in reducing atmospheric shipping emissions. However, the submission of a co-ordinated common proposal by the Straits States for this purpose may prove to be the weakness in this trian-gulated effort, inasmuch as it is a strength of Annex VI. So far, no co-ordinated proposal designating ECAs for the Malacca and Singapore Straits has been announced, although recent efforts in this direction did not materialise at the IMO. For enforcement purposes, the MFN principle of the MARPOL Convention should be adopted in national legislation, recalling the famous principle set out in Cunard Steamship Co., Ltd. v. Mellon.127 In a Note by the IMO to the thirty-ninth session of the Subsidiary Body for Scientific and Technological Advice (SBSTA 39),128 on “Emissions from fuel used for international aviation and maritime transport: Update on IMO’s work to address emissions from fuel used for international shipping,” it was pointed out that these mandatory mea-sures addressed ship types were responsible for 70% of GHG emissions from international shipping.129

The given SOx/NOx standards that are to be met in SECAs and NECAs are not mere peripheral matters that are attached to ECAs. The role of good sci-ence is paramount and humankind must continue to take a hard look at the environmental consequences. The description of the negotiating background to the Annex VI Technology Transfer Resolution, critical to the successful implementation of Annex VI, shows that the Straits States did not advance any particular stance in the Resolution debates based on their geographical loca-tion, although the Straits States bear a greater risk, with impacts not only on

127 262 U.S. 100 (1923).128 Warsaw, Poland, 11 to 16 November 2013, in Agenda item 11(f), Work on control of GHG

emissions from international shipping, available at http://unfccc.int/files/documenta tion/submissions_from_observers/application/pdf/imo_submission_sbsta_39_final_rev1 .pdf, accessed 30 May 2014.

129 For comprehensive information on the breakthrough adoption of mandatory technical and operational measures, refer to IMO’s submission to SBSTA 35 (FCCC/SBSTA/2011/MISC.9), available at https://unfccc.int/files/documentation/submissions_from_observ ers/application/pdf/imo_submission_sbsta_39_final_rev1.pdf, accessed 11 May 2016; For a low-carbon emisssion strategy for international shipping, see document entitled, “Ad Hoc Expert Working Group on Facilitation of Transfer of Technology for Ships”, 4th meeting, Agenda item 2, TT-EG 4/INF.2, 19 October 2015. Discussion of Specific Tasks under The Group’s Work Plan, Launch of the GloMEEP project, Note by the Secretariat, available at https://imo.amsa.gov.au/secure/papers/2015/tt-eg4/inf2.pdf, accessed 11 May 2016.

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human health, given the high density of shipping and coastal population living along the coastline of the Straits, but also on the marine environment. Through IMO’s Technology Transfer Resolution, the Strait States can reduce emissions considerably for the benefit of the various ecosystems in ports, coastal towns and cities, as seen from the IMO-KOICA project, and from the actions that sea-farers can take within their own ship’s SEEMP.130 If MARPOL Annex VI is not implemented in the Straits for whatever reason, the deleterious and hazard-ous effects of atmospheric shipping emissions on various ecosystems, and the local communities, will continue resulting in shattered ecosystems. Based on studies concluded in the US and China, the probability that Straits States suffer from a causal link between inefficient shipping and its deleterious and haz-ardous atmospheric emissions adversely affecting various ecosystems and a pathway of effects analysis suggests that coastal populations suffer bad lung health consequently.131 This situation may be redressed by controlling vari-ous shipping emissions (SOx, NOx, PM, and volatile organic matter) through SECAs and NECAs in the Straits. Although not all the answers are available today and new concepts within Annex VI are still undergoing some form of change, as the atmosphere is a common concern of humankind,132 the IMO must be commended for the adoption of MARPOL Annex VI and the break-through it achieved in overcoming a dead-locked Resolution at MEPC 65, on the environmental pathway from the Brundtland Report to the World Summit on Sustainable Development in International Environmental Law, with hope

130 IMO-KOICA (n 90).131 For the harmful effects of nitrogen and sulphur oxides and from particulate matter emis-

sions, see Natural Resources Defense Council, Harboring Pollution: Strategies to Clean Up U.S. Ports, available at http://www.nrdc.org/air/pollution/ports/execsum.asp, accessed 19 October 2015; D Dabdub and S Vutukuru, Final Report Air Quality Impacts of Ship Emissions in the South Coast Air Basin of California, available at http://www.arb.ca.gov/ports/marinevess/seca/ucifinal.pdf, accessed 31 December 2015; JJ Corbett, JJ Winebrake, EH Green, P Kasibhatla, V Eyring, and A Lauer, “Mortality from Ship Emissions: A Global Assessment” (2007) 14 (24) Environmental Scence and Technology 8512–8518; F Fung, Z Zhu, R Becque and B Finamore,—Prevention and Control of Shipping and Port Air Emissions in China NRDC white paper, October 2014 R:14-10-B, available at https://www .nrdc.org/sites/default/files/china-controlling-port-air-emissions-report.pdf, accessed 7 May 2016; J Scott, and H Sinnamon, Protecting American Health from Global Shipping Pollution, Establishing an Emission Control Area in U.S. Waters, available at http://www .cleanshipping.org/download/9466_ECA_report_March2009_0.pdf, accessed 7 May 2016; see also Birnie and Boyle (n 30).

132 MD Evans (ed), International Law (2nd ed., Oxford University Press, Oxford, 2006).



fixed on the UN principles of good governance, including the rule of law for ocean governance.133

The adoption of MARPOL Annex VI is considered a major advance over early international environmental law, generally regarded as “soft law” (as opposed to legally binding rules of international law), found in the Brundtland Report, also known as Our Common Future, that was published by the World Commission on Environment and Development in 1987 and accepted by the United Nations General Assembly.134 This was followed by the 1992 UN Conference on Environment and Development in Rio de Janeiro, Brazil, also referred to as the Rio Summit and the Earth Summit where the principles of sustainable development were set out for the first time. The Earth Summit adopted the Rio Declaration on Environment and Development, Agenda 21, a global plan of action for sustainable development and three instruments of environmental governance, namely, the UN Framework Convention on Climate Change, the Convention on Biological Diversity, and the non-legally bind-ing Statement of Forest Principles.135 Since then environmental conferences called the 1997 Earth Summit+5 in New York and the 2002 World Summit on Sustainable Development (WSSD) in Johannesburg have been held to review the progress made by nations which unfortunately had been unsuccessful.136

133 J Park, M Finger and K Conca, “The death of Rio Environmentalism” in J Park, K Conca and M Finger (eds), The Crisis of Global Environmental Governance: Towards a New Political Economy of Sustainability (Routledge, London, 2008) 1–12; see J Drexhage and D Murphy, Sustainable Development: From Brundtland to Rio 2012: Background Paper prepared for con-sideration by the High Level Panel on Global Sustainability at its first meeting, 19 September 2010, International Institute for Sustainable Development, United Nations Headquarters, New York, available at http://www.uN org/wcm/webdav/site/climatechange/shared/gsp/docs/GSP1–6_Background%20on%20Sustainable%20Devt.pdf, accessed 25 April 2016.

134 See Report of the World Commission on Environment and Development: Our Common Future Transmitted to the General Assembly as an Annex to document A/42/427—Development and International Co-operation: Environment, available at http://www .un-documents.net/wced-ocf.htm, accessed 7 May 2016; for UNGA document that accepted Our Common Future, see UNGA A/RES/42/187—Report of the World Commission on Environment and Development, 96th plenary meeting, 11 December 1987, available at http://www.uN org/documents/ga/res/42/ares42–187.htm, accessed 7 May 2016.

135 Convention on Biological Diversity (Rio de Janeiro, Brazil, 5 June 1992, in force 29 December 1993) 1760 UNTS 79; United Nations General Assembly, Report of the United Nations Conference On Environment and Development: Non-Legally Binding Authoritative Statement of Principles For A Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (Rio de Janeiro, 3–14 June 1992), Annex III, A/CONF.151/26 (Vol. III), Distr. General, 14 August 1992, available at http://www.uN org/documents/ga/conf151/aconf15126–3annex3.htm, accessed 7 May 2016.

136 Drexhage and Murphy (n 133).

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