NETWORK OF EXPERTS ON THE LEGAL ASPECTS OF MARITIME SAFETY AND SECURITY (MARSAFENET) FINAL CONFERENCE National Research Council of Italy, Rome, 10-11 MARCH 2016 Keynote Address “ Present and Future Challenges of International Maritime Law in Responding to Climate Change ” Aldo Chircop Canada Research Chair in Maritime Law & Policy Marine & Environmental Law Institute, Dalhousie University, Halifax, Canada 1. INTRODUCTION The United Nations Conference on Trade and Development (UNCTAD) has characterised the climate change challenge faced by international maritime transport in two respects: first there is “ the need to reduce its carbon emissions ” and, second, and at the same time, there is a need to “ adapt to the potentially wide-ranging impacts of climatic changes ” (UNCTAD, 2012; website 2016). The maritime industry’s fair share of mitigation efforts has as yet to be defined by the International Maritime Organization (IMO), the body designated by the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) as the competent and leading international organization with regards to international shipping. When it is borne in mind that international maritime transport carries over 80% (some hold even 90%) of the volume of global trade, the challenge can only be described as imperative. Colleagues, the international shipping industry has been called upon to respond with contributions to international efforts in mitigation of greenhouse gas (GHG) emissions. The industry has to come to grips with a prolonged period of radical change and consequent uncertain future because of a need to fundamentally rethink the environmental economics of marine transportation in response to climate change. The last few months may prove to have been pivotal for international maritime law, i.e., the law relating to international shipping, in responding to climate change. First, on 25 November the Assembly of the IMO adopted the Strategic Plan for the 2016-2021 period. The plan includes a commitment to contribute to international efforts to reduce atmospheric pollution and address climate change. Second, in December 2015 there was a deliberate decision at the 21 st Meeting of Parties to the UN Framework Convention on Climate Change, 1992 to exclude shipping from the Paris Agreement, 2015 emission targets aimed at holding the temperature increase to well below 2 o C above pre-industrial levels while pursuing efforts at not exceeding 1.5 o C above pre-industrial levels. The Paris commitments were adopted through an instrument of 1
international environmental law. The exclusion of shipping effectively passed on the responsibility to set targets for GHG reductions to the IMO. The consequence is instruments of international maritime law will be used to deliver the marine transpor tation sector’s contribution. Third, on 1 January 2016 outgoing IMO Secretary-General Mr Koji Sekimizu of Japan, who spoke against the capping of carbon emissions from ships for fear it would constrain maritime trade, was succeeded by Mr Kitack Lim of the Republic of Korea. In January Mr Lim wasted no time in asserting that “Contributing to the fight against climate change is a top priority for IMO,” alongside its traditional functions in maritime safety, security and prevention of vessel-source pollution of the marine environment. This comes in the wake of lukewarm response in the Organization ’ s Marine Environment Protection Committee (MEPC) to a 2015 Marshall Islands’ proposal for an emissions reduction target for shipping. Mr Lim wants to see more action from the MEPC and anticipates discussions on emissions to start as early as this April. Colleagues, there is tremendous pressure on the IMO to lead the maritime industry in mitigation efforts. This is no small challenge. However, in addition to support for mitigation, international maritime law can and has responded to climate change in other ways as well. In my presentation I will propose three lines of argument on the role of international maritime law in responding to climate change: the first concerns the role of shipping in mitigation, i.e., the need to reduce carbon emissions and perhaps one day to decarbonize this transport mode. This argument will constitute the bulk of my presentation. To a lesser extent, second, I will discuss international shippin g’s efforts in adapting to climate change and, third, the growing role of maritime safety regulation in supporting offshore renewable energy activities. 2. REDUCING CARBON EMISSIONS 2.1 Challenges and opportunities Colleagues, addressing mitigation by using international maritime law tools presents challenges and opportunities. First, a major and perhaps the major challenge, the shipping industry is global and transnational. The industry can be best described as an “ ecosystem ” servicing seaborne trade. While the owning and operating of ships is at the centre, there are numerous sectors providing cargo, services, supplies and crews to ships in a transnational setting. Shipowners may reside in one jurisdiction and flag their ships under another. The majority of world tonnage is registered under foreign flags (UNCTAD, 2015). Ships can easily change their registration and are highly mobile as they emit GHGs across jurisdictions while carrying trade from one State or region and their markets to others. This industry cannot be effectively or exclusively regulated at the national level. Imposing emission reductions at the national or even regional level potentially undermines the universal nature of maritime 2
regulation and aspirations for uniform application in the interests of international trade. Hence the value of curbing emissions through IMO standards. In doing so, we should bear in mind that the IMO work on mitigation has focused on ships engaged in international trade, so that fishing vessels, recreational vessels and ships engaged in domestic trade (e.g., ferries) are excluded. Second, and an opportunity, the IMO is the competent international organization for the regulation of shipping. It has a largely successful record of international regulation for safety, environment protection and security. International maritime regulation is underscored by the principles of universalization (ensuring instruments are broadly subscribed), uniformity (instruments are to be implemented consistently) and with no more favourable treatment (all ships are treated on the same playing field irrespective of nationality). As a result, there is a functional international governance framework that is in a position to address mitigation in an appropriate and effective manner. Third, and a challenge, at this time there is no parallel in the IMO framework to the structures and processes governing national contributions under the Paris Agreement. National governments cannot easily make commitments to lower emissions from their ships or on ships that service their trade. As I pointed out, ships can be easily reflagged and moved out of jurisdiction. Thus contributions to mitigation cannot easily be made by the flag State or State of beneficial ownership, but through some other manner, possibly in the form a generalised contribution of the shipping industry through the agency of the IMO. Possibly, there will be a need for emissions certification and a public registry for ships to maintain records that can be monitored and audited. This will not be analogous to the registry for nationally determined mitigation contributions. A public registry for ships would involve private owners and recorded fuel supplies to those ships. Fourth, both an opportunity and a challenge, the shipping industry has had some success in reducing ship emissions per vessel over time (IMO 2014). However, projections are for further emission increases because the actual volume of emissions from the shipping industry as a whole is hostage to global economic growth and the expectation of carriage of that trade by sea. The Third IMO GHG Study (IMO 2014) revealed that the 2007 CO 2 estimate of 2.8% of global emissions had dropped to 2.2% by 2012. However, CO 2 emissions are projected to increase by 50% to 250% by 2050 on a business as usual scenario, despite fleet average efficiency improvements of about 40%. In other words, whatever the re ductions through technical and operational improvements, and in the absence of “0” emission technologies, growth in global trade will push up ship emissions. The industry is against absolute emissions because it can only control relative emissions, i.e., per tonne mile (i.e., fuel consumed for the distance covered multiplied by the volume of cargo carried). Fifth, both a challenge and an opportunity, is the technology of ship design and propulsion efficiency. On this point there are those that hold that ship technology has not improved much in recent times, whereas others point to improvements (Pew Centre on Global Climate Change, 2010). The diesel engine is one of the workhorses of modern ships and a consideration is whether the diesel engine can in fact be improved to deliver on the promised emissions reductions. Fortunately, there appear to be new propulsion prospects 3
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