Making ships cleaner: Reducing air pollution from international shipping

Date01 November 2017
AuthorSophia Kopela
Published date01 November 2017
RECIEL. 2017;26:231–242.    
DOI: 10.1111/reel.12220
Making ships cleaner: Reducing air pollution from international
Sophia Kopela
© 2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
Email: This article assesses the international legal framework for the reduction of air pollution
from international shipping and the measures adopted by the International Maritime
Organization (IMO). It sheds light on the difficulties and challenges in the IMO nego-
tiations, the ensuing compromises, and the role and interests of the various stakehold-
ers. It further identifies the inadequacies of the regulatory framework and the
challenges in its implementation, and explores the prospects for the adoption of fur-
ther measures to strengthen it. The article also evaluates unilateral measures adopted
by port and coastal States, especially with respect to jurisdictional issues in their mari-
time zones. Finally, it assesses the role of private and hybrid initiatives and standards
as part of a multi- actor governance system for tackling air pollution.
Air pollution from international shipping is known to have adverse ef-
fects on human health and on the environment, and to contribute to
global warming.1 Emissions of air pollutants from ships account for a
significant part of total global emissions.2 An increase of demand for
maritime transport3 and better understanding of the impacts of air
pollution from ships have enhanced the need and urgency for the de-
velopment of a robust regulatory framework for reducing air pollutant
emissions from ships. Given that maritime transport and shipping con-
cern global activities and that the air and atmosphere are shared re-
sources and part of the global commons, an international regulatory
framework is required to ensure an effective solution to the problem.
Adopting such a regulatory framework has been challenging due to
the cost implications for the shipping industry, the competitiveness of
maritime transport vis-à-vis other means of transport, and potential
impacts on trade.
The International Maritime Organization (IMO) has been actively en-
gaged in discussions on how to tackle air pollution from ships, enhance
energy efficiency and ensure sustainable maritime transport for the future.
In November 1991, the IMO Assembly adopted Resolution A.719(17) on
Prevention of Air Pollution from Ships, which called on the Marine
Environment Protection Committee (MEPC) to draft a new Annex to the
1973 International Convention for the Prevention of Pollution from Ships
(MARPOL)4 on prevention of air pollution.5 Annex VI was adopted in 1997
as a Protocol to the MARPOL Convention6 and entered into force on 19
May 2005. Annex VI was revised and amended in 2008 to strengthen the
legal regulation in the light of new technological innovations and the ex-
perience from implementing the relevant standards.7 This Annex currently
has88partieswhichrepresent96.16 percentofthegrosstonnageofthe
1European Environment Agency (EEA), ‘The Impact of International Shipping on European Air
Quality and Climate Forcing’ (EEA 2013) 38–39; A Miola et al, ‘Regulating Air Emissions from
Ships: The State of the Art on Methodologies, Technologies and Policy Options’ (European
Commission Joint Research Centre 2010)
erence_report_2010_11_ships_emissions.pdf> 12–14.
2The Third IMO Greenhouse Gas (GHG) Study estimated that in 2007–2012 SOx and NOx
emissionsfrominternationalshippingrepresentedapproximately12and13 percentofglobal
SOx and NOx emissions, respectively; IMO, ‘Third IMO GHG Study 2014’ (MEPC 67/INF.3) 14,
para 1.2. It has also been found that SOx emissions from ships are substantially higher than the
equivalent emissions from land transport and aviation; International Transport Forum (ITF)
and Organisation for Economic Co- operation and Development (OECD), ‘Reducing Sulphur
Emission from Ships: The Impact of International Regulation’ (2016) (ITF/OECD report) 10.
3K Cullinane and S Cullinane, ‘Atmospheric Emissions from Shipping: The Need for Regulation
and Approaches to Compliance’ (2013) 33 Transport Reviews 377, 382.
4International Convention for the Prevention of Pollution from Ships (adopted 2 November
1973, entered into force, as modified by the Protocol of 1978, 2 October 1983) 1340 UNTS
184 (MARPOL).
5IMO, ‘Assembly Resolution A.719(17), Prevention of Air Pollution from Ships’ (6 November 1991).
6Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from
Ships, 1973, as Modified by the Protocol of 1978 Relating Thereto (MARPOL) (Annex VI on the
Prevention of Air Pollution from Ships) (adopted 26 September 1997, entered into force 19
May 2005) .
7IMO 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’; and IMO Resolution MEPC.177(58),
‘Amendments to the Technical Code on Control of Emissions of Nitrogen Oxides from Marine
Diesel Engines’ (adopted on 10 October 2008) in IMO, ‘Report of the MEPC on its 58th
Session’ (MEPC 58/23/Add.1) Annex 13–14.
world’s merchant shipping.8 The adopted measures mainly include
emission control limits of certain pollutants such as sulphur oxides (SOx),
nitrogen oxides (NOx), particulate matter (PM) and volatile organic com-
pounds (VOCs). Annex VI was further amended in 2011 and 2016 to in-
clude measures for the reduction of greenhouse gas (GHG) emissions from
international shipping. Contributing to global efforts to reduce atmos-
pheric pollution is a significant objective of the IMO, as reflected in its
Strategic Plan for 2016–2021.9 Negotiations continue for strengthening
the existing regulatory framework and adopting further measures, includ-
ing reducing emissions of other pollutants such as black carbon.
Some States have also adopted measures to minimize the impact
of air pollutants from vessels visiting their waters and their ports,10
while the shipping industry has also demonstrated willingness to im-
prove fuel efficiency and reduce fuel consumption through techno-
logical innovations. Private initiatives and standards have also been
introduced to provide incentives for the greening of shipping and raise
awareness of its environmental footprint.11
This article examines the international legal framework for the reduc-
tion of air pollution from international shipping and the measures adopted
by the IMO, and sheds some light on the difficulties and challenges in the
IMO negotiations, the ensuing compromises, and the role and interests
of the various stakeholders. It further identifies the inad equacies of the
regulatory framework and the challenges in its implementation, and ex-
plores the prospects for the adoption of further measures to strengthen
it. Even though GHG and non- GHG pollutants can have adverse impact
on the environment and global health, the IMO has conducted negotia-
tions for the reduction of air pollution and GHG emissions under sepa-
rate agenda items. This article focuses on the reduction of non- GHG air
pollutants from international shipping; however, some reference is made
to GHG emission measures to highlight potential interactions, especially
concerning the negotiations for the reduction of black carbon. The article
also evaluates unilateral measures adopted by port and coastal States,
especially with respect to jurisdictional issues in their maritime zones,
and finally assesses the role of private and hybrid initiatives as part of a
multi- actor governance system for tackling air pollution.
2.1 | IMO measures for the reduction of air pollution
from ships
Annex VI of MARPOL provides for mandatory technical measures to
reduce emissions of SOx, PM, NOx, ozone- depleting substances and
VOCs, and regulates shipboard incineration and the quality of fuel oil.
To facilitate compliance, the IMO has also adopted various guidelines
and circulars related to the interpretation and implementation of tech-
nical measures.
Emissions of SOx and PM are covered by Regulation 14 of Annex
VI of MARPOL, which provides for a maximum sulphur content of fuel
oils used by ships. There are no specific control limits for PM,12 in con-
trast to standards for these substances in the regulation of other
means of transport,13 but PM emissions are regulated indirectly via the
sulphur emission limits.14 The maximum sulphur content was deter-
mined at 4.50 percent m/m(by mass) prior to 1 January 2012, to
3.50 percentm/mafter1January2012and0.50 percentm/monand
after 1 January 2020. The 2020 effective date was subject to a feasi-
bility review on compliant fuel availability due before 2018. In October
2016, the Steering Committee entrusted with conducting the review
submitted its final report and found (by majority, with some dissen-
sion) that the fuel oil availability meets the terms of regulation and that
this finding should inform the decision of the MEPC regarding the im-
plementation of the reduction of the sulphur cap.15
The debate in the 70th session of the MEPC in October 2016
reflects some of the challenges and difficulties encountered by the
MEPC to achieve consensus and accommodate the diverse interests
of States and other stakeholders for the adoption of a regulatory
framework for air pollution from ships.16 The findings of the feasibil-
ity review were questioned and concerns were raised about whether
the capacity of compliant fuel was sufficient to accommodate the
global sulphur cap, and about the suitability of blended oils, espe-
cially related to safety concerns.17 Some State delegates and industry
representativesarguedthattheentryintoforceofthe 0.50 percent
sulphur content in 2020 was premature and would lead to market
distortion, diversion of cargo flows to other means of transport and
8See IMO, ‘Status of Conventions’
9IMO, ‘Assembly Resolution A.1097(29), Strategic Plan for the Organisation (for the Six- Year
Period 2016 to 2021)’ (25 November 2015) para 7.3.
10See, for example, Directive 2016/802/EU of the European Parliament and of the Council of
11 May 2016 relating to a reduction in the sulphur content of certain liquid fuels (codification)
[2016] OJ L132/58.
11See R Taudal Poulsen et al, ‘Buyer- Driven Greening? Cargo- Owners and Environmental
Upgrading in Maritime Shipping’ (2016) 68 Geoforum 57, 62.
12IMO, ‘Report of the MEPC on its 57th Session’ (MEPC 57/21) para 4.26.
13See, for example, Regulation (EC) No 715/2007 of the European Parliament and Council of
20 June 2007 on type approval of motor vehicles with respect to emissions from light passen-
ger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and mainten-
ance information [2007] OJ L171/1, which provides for PM emission limits.
14ITF/OECD report (n 2) 10–11.
15IMO, ‘Review of Fuel Oil Availability as Required by Regulation 14.8 of MARPOL Annex VI
– Final Report of the Steering Committee’, submitted by the Steering Committee coordinator
(MEPC 70/5/6).
16IMO, ‘Report of the MEPC on its 70th Session’ (MEPC 70/18) para 5.53. States operating
open registries supported the views expressed by the industry concerning the financial bur-
den and oil availability implications of the measures; see IMO, ‘Effective Implementation of
the0.50 m/mSulphurContentunderRegulation14.1.3ofMARPOLAnnexVI’,submittedby
Japan, Liberia, Marshall Islands, Panama, Republic of Korea, Vanuatu, Baltic and International
Maritime Council (BIMCO), Cruise Lines International Association (CLIA), International
Bunker Industry Association (IBIA), International Chamber of Shipping (ICS) and World
Shipping Council (WSC) (MEPC 70/5/2). States operating open registries have generally been
reluctant to accept strict measures for reducing of air pollution from international shipping
due to the financial burdens to the shipping industry.
17IMO, ‘Review of Fuel Oil Availability as Required by Regulation 14.8 of MARPOL Annex VI
– Result of Multi- stakeholder Study by EnSys/Navigistics’, submitted by BIMCO and
International Petroleum Industry Environmental Conservation Association (IPIECA) (MEPC
70/5/5 and MEPC 70/INF.9); see also ‘Statement by Observers BIMCO and IPIECA’, in IMO,
‘Report of the MEPC on its 70th Session’ (MEPC 70/18/Add.1) Annex 22, clarifying some
issues related to these studies. See also statements by Cook Islands and Intercargo, in ibid.
an increase in transport costs.18 The potential economic impact on
developing States was also stressed, especially related to risks to liv-
ing standards.19 Other delegations supported the findings of the re-
view regarding the availability of fuel oil, and stressed the urgency of
the problem especially related to health impacts, the beneficial expe-
rience from existing Emission Control Areas (ECAs) and the fact that
there was still time for the industry to adjust.20 The Committee de-
cided to retain 1 January 2020 as the effective date for the imple-
mentationofthe0.50 percentm/msulphurcontent.21 Concerns had
been raised regarding the IMO’s resolve to respond promptly to the
urgency of the problem, especially in the face of regional attempts to
adopt and enforce stricter meas ures.22 The decision to retain the ini-
tial deadline for stricter stand ards was regarded as a landmark and a
clear indication, as noted by the organization itself, that the IMO is
committed to ‘meet[ing] its environmental obligations’.23
NOx emissions are covered by Regulation 13 and the NOx Technical
Code.Marinedieselenginesof over130 kilowatt(kW)outputpower
are required to comply with the NOx control requirements. The ship
construction date determines the application of the levels (Tiers) of
limit control, which are calculated on the basis of the rated speed of
the engine.24 Tiers I and II have global application, whereas Tier III ap-
plies to ships in ECAs. Tier I, which has low reduction emission projec-
tions, applies to vessels constructed between 2000 and 2011, while
TierII(reductionofemissionsofaround15–20 percentincomparison
to Tier I25) applies to vessels built after 2011. The strictest NOx reduc-
tioninTierIII(around80 percentincomparisontoTierI)onlyapplies
to vessels which have been constructed after 1 January 2016 for the
North American and US Caribbean ECAs and for other ECAs the year
of the designation of such areas or later, if so prescribed.26 Regulating
existing vessels has been particularly controversial and challenging in
the IMO due to cost implications, and NOx emissions continue to pose
a problem as the existing measures cover only a section of the operat-
ing merchant fleet. As will be discussed below, some States are consid-
ering further regulation to reduce NOx emissions.
Measures have also been adopted for ozone- depleting substances
and VOCs. Regulation 12 provides for the prohibition of installations
that contain certain ozone- depleting substances, based on the date
of the construction of the ship. VOCs are addressed by Regulation
15, which provides for the use of a vapour emission control system in
tankers in certain ports or terminals; tankers carrying crude oil are also
required to have a VOC Management Plan.
An important measure for the reduction of air pollution is the designa-
tion of ECAs for SOx and/or NOx to allow for stricter standards to tackle
higher localized air pollution and reflect local circumstances.27 Stricter
standards for SOx
28 and NOx
29 emissions are prescribed for designated
areas. To date, four areas have been designated as ECAs: the Baltic Sea
(SOx and NOx), the North Sea (SOx and NOx),30 the North America area
(SOx, NOx and PM)31 and the US Caribbean Sea area (SOx, NOx and PM).32
2.2 | Implementation and enforcement of
IMO measures
The success of the adopted measures and reduction of air pollution
will depend on their effective implementation, namely compliance by
shipowners and ship operators, and enforcement in cases of non-
compliance. This is also important for ensuring a level playing field and
for ensuring that there will be no unfair market advantage for non-
complying companies,33 as shipping companies are concerned that
‘weak enforcement [of the new sulphur content limit] may incentivise
some companies not to comply to achieve competitive advantages’.34
States and representatives of the industry have also stressed the sig-
nificance of effective and uniform implementation of the new sulphur
content limit to ensure that there is accuracy in the market demand so
that the marine fuel oil supply chain can plan effectively on how to
meet global demand.35
18On this point, see MEPC 70/5/2 (n 16); this document stresses the financial impact and
significantincreaseofcostsfor theindustrybytheimplementation ofthe0.50 percentsul-
phur content. See also MEPC 70/18 (n 16) para 5.53.
19MEPC 70/18 (n 16) para 5.53.22.
20ibid; see also IMO, ‘Study on Effects of Entry into Force of the Global 0.5% Fuel Oil Sulphur
Content Limit on Human Health’, submitted by Finland (MEPC 70/INF.34).
21IMO Resolution MEPC.280(70), ‘Effective Date of Implementation of the Fuel Oil Standard
in Regulation 14.1.3 of MARPOL’ in MEPC 70/18/Add.1 (n 16) Annex 6.
22During the discussions in MEPC 70, States referred to the ‘reputational risk to the
Organisation should it decide to delay to 2024’; MEPC 70/18 (n 16) para 5.51.4. There was
also reference to the impact of any delay on the perception of the shipping sector ‘not to be
seen to be out of step’; ibid para 5.53.3.
23IMO, ‘IMO Sets 2020 Date for Ships to Comply with Low Sulphur Fuel Oil Requirement’ (28
October 2016)
24MARPOL Annex VI (as amended) (n 7) Regulation 13, paras 3–5: Tier I ship construction
date on or after 1 January 2000 and prior to 1 January 2011; Tier II on or after 1 January
2011; Tier III on or after 1 January 2016. Emission limits are also provided for marine diesel
engines installed on ships constructed on or after 1 January 1990 but prior to 1 January 2000
(ibid paras 7.1–7.5) ‘provided that an approved method for that engine has been certified by
an administration of a party and notification of such certification has been submitted to the
organisation by the certifying administration’.
25H Winnes et al, ‘NOx Controls for Shipping in EU Seas’ (June 2016)
eu/publicatie/nox_controls_for_shipping_in_eu_seas/1819> 7.
26IMO Resolution MEPC.251(66), ‘Amendments to Regulations 2, 13, 19, 20 and 21 and the
Supplement to the IAPP Certificate under MARPOL Annex VI and Certification of Dual- Fuel
Engines under the NOx Technical Code 2008’ in IMO, ‘Report of the MEPC on its 66th
Session’ (MEPC 66/21) Annex 12, para 5.1. On the negotiations concerning the postpone-
ment of the effective date for Tier II implementation and the resultant compromise, see
Winnes et al (n 25) 10–12.
27See Appendix III to Annex VI of MARPOL (n 4) regarding the criteria and process for the
designation of ECAs.
28The SOxrestrictionsarethe following:1.50 percentpriorto 1July2010,1.00 percent on
andafter1July2010and0.10 percentonandafter1January2015.MARPOL(n4)AnnexVI,
Regulation 14, para 4.
29MARPOL Annex VI (as amended) (n 7) Regulation 13, para 5.
30ibid Regulation 14, paras 3–4. The Baltic and North Sea NOx Emission Control Areas were
approved in MEPC 70 (see MEPC 70/18 (n 16) para 5.59), with an effective date of 1 January
31IMO Resolution MEPC.190(60), ‘North American Emission Control Area’ in IMO, ‘Report of
the MEPC on its 60th Session’ (MEPC 60/21) Annex 11.
32IMO Resolution MEPC.202(62), ‘Designation of the US Caribbean Sea Emission Control
Area and Exemption of Certain Ships Operating in the North American Emission Control Area
and the US Caribbean Sea Emission Control Area under Regulations 13 and 14 and Appendix
VII of MARPOL Annex VI’ in IMO, ‘Report of the MEPC on its 62nd Session’ (MEPC 62/24)
Annex 14.
33ITF/OECD report (n 2) 8.
34J Lister et al, ‘Orchestrating Transnational Environmental Governance in Maritime Shipping’
(2015) 34 Global Environmental Change 185, 190; they refer to the Trident Alliance, ‘a rapidly
growing coalition of mainly Scandinavian shipping companies that seeks to promote strong
[sulphur emission control area] enforcement’.
35MEPC 70/5/2 (n 16).
Regulation 4 on Equivalents allows for flexibility in complying with
the relevant standards in order to enhance cost- effectiveness and to
allow for technological developments to be taken into account.36 Ships
can comply with the regulations by either using compliant fuels (includ-
ing alternative fuels) or by using abatement technologies. There are
various studies reviewing the possible means of compliance to identify
their advantages and disadvantages, especially with respect to costs.37
Effective implementation of the measures will depend on the availabil-
ity of compliant fuel (including alternatives such as liquefied natural
gas) and the facilitation of the use of alternative means of energy by
ports, especially onshore power facilities.38 The role of ports is very
important with respect to ensuring that vessels calling at their port are
provided with quality fuels compliant with IMO requirements39 and
that alternative means of energy such as onshore power supply (‘cold
ironing’) are available.40 The MEPC also discussed – but rejected – the
use of emissions averaging schemes under Regulation 4 on
Equivalents.41 This proposal relied on requests of the shipping industry
to reduce compliance costs and allow for flexibility,42 but concerns
were expressed that such systems were in essence market- based
mechanisms,43 and that they could lead to market distortion, weaken
the integrity of the measures and potentially impair the environment of
another State.44
By means of enforcement, Annex VI provides for surveys, certifica-
tion and inspections in ports including sampling. All ships of 400 gross
tonnage and above are required to be subjected to survey and are re-
quired to have an International Air Pollution Prevention Certificate.45
Ships are also required to register ‘details of fuel oil for combustion
purposes delivered to and used on board’ in the bunker delivery note,
and keep representative samples of the fuel received on board.46 With
respect to NOx, engines need to be certified according to the NOx
Technical Code. All new engines need to be certified with the issue of
an Engine International Air Pollution Prevention Certification by the
engine builder following assessment.47
Flag States are primarily responsible for enacting and enforcing
measures for vessels flying their flag, but given the problems related
to flags of convenience/open registries, the responsibility to ensure
compliance with the requirements of MARPOL Annex VI falls on
coastal and mainly port States. The legislative and enforcement jur-
isdictional competence of the coastal and port States, however, is
not without problems. The United Nations Convention on the Law
of the Sea (LOSC) refers to ‘pollution from or through the atmos-
phere’ in Articles 212 (on legislation) and 222 (on enforcement).48
Both provisions lack details, and only refer to the obligations of flag
States and of coastal States in their territorial sea in general terms
without establishing either minimum standards or limits to the com-
petence of the coastal State.49 There is some uncertainty whether
these provisions regulate vessel- source air pollution exclusively or
whether the general jurisdictional framework regarding vessel-
source pollution in Articles 211 and 220 would also be applicable,
especially concerning the jurisdictional competence of the coastal
State in the exclusive economic zone (EEZ) which is not mentioned
in Articles 212 and 222 LOSC. Article 212 only refers to the obliga-
tions of the coastal and flag State, whilst its wording and the travaux
préparatoires indicate that this was meant to primarily cover air traf-
fic pollution.50 This may indicate that the general jurisdictional
framework of Articles 211 and 221 would also apply in instances of
vessel- source air pollution. Regulation 11(6) of MARPOL Annex VI
provides that the vessel- source pollution jurisdictional framework
also applies to Annex VI.51
The coastal State can enact national legislation, giving effect to
MARPOL rules in its territorial sea. Provided that MARPOL Annex VI
rules can be perceived to be ‘generally accepted’ this would also apply
to construction, design, equipment and manning (CDEM) standards.52
The coastal State also has the power to enact legislation for the pre-
vention and control of marine pollution in its EEZ, provided that this
gives effect to ‘generally accepted international rules and standards’.53
The LOSC does not clarify the meaning of this phrase but, as noted by
Molenaar, ‘this qualification is met when the criteria “widespread and
36MARPOL Annex VI (as amended) (n 7) Regulation 4. Equivalents are required to be ‘at least
as effective in terms of emissions reductions as that required by this Annex’. Guidelines have
been adopted with respect to specific equivalent methods; see, e.g., IMO Resolution
MEPC.259(68), ‘2015 Guidelines for Exhaust Gas Cleaning Systems’ in IMO, ‘Report of the
MEPC on its 68th Session’ (MEPC 68/21/Add.1) Annex 1; and IMO Resolution MEPC.198(62),
‘2011 Guidelines Addressing Additional Aspects to the NOx Technical Code 2008 with
Regard to Particular Requirements Related to Marine Diesel Engines Fitted with Selective
Catalytic Reduction in MEPC 62/24’ (n 32) Annex 6.
37Cullinane and Cullinane (n 3) 391–395; and EEA (n 1) 34.
38ITF/OECD report (n 2) 37–38.
39See, for example, information on the port of Singapore in IMO, ‘Bunker Quality Management
Framework in the Port of Singapore’, submitted by Singapore (MSC 94/INF.8).
40See IMO, ‘Promoting the Use of Onshore Power Supply’, submitted by Community of
European Shipyards’ Associations (MEPC 69/5/8); this document refers to regulation in
Californiawhichprovidesthatby202080 percentofthesourceofvessels’powermustcome
from onshore power supply. Directive 2014/94/EU of the European Parliament and of the
Council of 22 October 2014 on the deployment of alternative fuels infrastructure [2014] OJ
L307/1 also provides for the progressive development of onshore power connections in the
ports by 2025.
41See IMO, ‘Report of the MEPC on its 65th Session’ (MEPC 65/22) para 4.34.
42This was proposed by the United States; see IMO, ‘Guidelines for Equivalent Methods:
Regional Emissions Averaging’, submitted by the United States (BLG 17/11/3); IMO,
‘Outcome of BLG 17 – Guidelines for Equivalent Methods: Regional Emissions Averaging’,
submitted by the United States (MEPC 65/11/3). See also IMO, ‘Report of Correspondence
Group’ (BLG 17/11) Annex 3.
43See IMO, ‘Comments on the Outcome of BLG 17’, submitted by China (MEPC 65/11/4).
44MEPC 65/22 (n 41) para 4.35. See also IMO, ‘Equivalents under Regulation 4 of MARPOL
Annex VI and Emissions Trading’, submitted by the Clean Shipping Coalition (CSC) (BLG
45MARPOL (n 4) Annex VI, Regulations 5 and 6 (amended).
46ibid Regulation 18, paras 5–8; and Appendix V.
47IMO, ‘NOx Technical Code 2008’ (MEPC 58/23/Add.1) Chapter 2.
48United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered
into force 16 November 1994) 1833 UNTS 3 (LOSC) art 212, 222.
49See comments by AE Boyle, ‘Marine Pollution under the Law of the Sea’ (1985) 79 American
Journal of International Law 347, 354: ‘atmospheric pollution is clearly subjected to a negli-
gible level of international control and such regulations as are adopted need not conform to
any particular pattern, whether of minimum standards or otherwise’.
50See MH Nordquist et al (eds), United Nations Convention on the Law of the Sea: A Commentary
Vol. 4 (Martinus Nijhoff 1991) 208–213. See also the discussion in H Ringbom, EU Maritime
Safety Policy and International Law (Martinus Nijhoff 2008) 431–432, who points out that
Articles 212 and 222 ‘have been largely ignored in practice when the jurisdictional limits on
the regulation of ship emission have been discussed, including at the discussions held within
the EU’.
51See EJ Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (Kluwer 1998) 506–
510, on the impact of this Regulation on the jurisdictional competence of States.
52LOSC (n 48) art 211(4) and art 21(2).
53ibid art 211(5).
representative participation in the convention, provided it included
that of states whose interests were specifically affected” are ful-
filled’.54 MARPOL Annex VI has fewer State parties (88 ratifications)
than other MARPOL Annexes, but those State parties represent
96.16 percentofworld tonnageand itcan beargued thatthegreat
majority of flag States have accepted the rules adopted by the IMO on
air pollution reduction. Annex VI can thus be accepted as generally
accepted international rules and standards.55 This means that the
coastal State can enforce MARPOL Annex VI rules not only against
vessels flying flags of parties to MARPOL Annex VI but also against
non- parties.56
The enforcement jurisdiction of the coastal State in the territorial
sea and the EEZ is more limited. In the territorial sea, the coastal State
can take action for the violation of its national laws reflecting MARPOL
Annex VI standards, provided that it does not hamper the right of in-
nocent passage.57 Enforcement in the EEZ is more restricted, based on
a gradual strengthening of the enforcement actions depending on the
violation; with respect to violation of air emission standards, only the
first stage could be justified, namely to ‘require the vessel to give infor-
mation regarding its identity and port of registry, its last and its next
port of call and other relevant information required to establish
whether a violation has occurred’.58
The port State can inspect and take enforcement action against
non- compliant vessels in its ports and impose sanctions and fines for
lack of appropriate documents, violation of emission limits, non-
compliant fuel on board (after sampling), malfunction of abatement
mechanisms and detain the vessel until the ‘situation has been brought
to order in accordance with the requirements of this Annex’.59 The
IMO has adopted Guidelines for on- board sampling and verification of
the sulphur content of the fuel oil used on board ships60 to ensure
uniformity in enforcement, enhance compliance and avoid undue de-
lays. The port State can also take enforcement action for violation of
MARPOL Annex VI rules and standards when the violation has taken
place in its territorial sea and EEZ,61 but not when the violation has
taken place on the high seas. A possible exception to this – though
limited in practice – may be the analogical application of Article 218,
provided that emissions can be equated with discharges under this
article.62 Coordination and harmonization of the measures adopted by
the ports in a region via the adoption of regional Memoranda of
Understanding (MOUs)63 have been instrumental in ensuring applica-
tion of the measures, avoiding non- compliance and maintaining a level
playing field among ports. Despite these coordination mechanisms,
various challenges remain, such as discrepancies in inspection rates
and in the quality of inspections among ports and among MOUs, and
weaknesses of mechanisms for reviewing port State inspection.64
A key problem with respect to enforcement concerns the detec-
tion of violations. A study by the International Transport Forum (ITF)
and the Organisation for Economic Co- operation and Development
(OECD) noted that ‘bunker fuel delivery notes are notoriously subject
to irregularities and fraud’ and stressed the limitations of sampling in
the ports with respect to potential violations which may have taken
place before the vessel entered the port.65 Detection is particularly
problematic when the ship is navigating both in- and outside ECAs and
therefore carries different types of fuel, making it difficult for port of-
ficers to detect potential violations in ECAs. There are various ways of
monitoring the emissions of vessels in coastal waters, such as planes,
drones and sniffers especially in areas of increased traffic;66 these
have been used by States, but they are costly methods, geographically
limited and not always commercially available.67 Suggestions have
been made for the use of big data solutions (i.e., speed, ship and en-
gine characteristics), automatic identification system data, monitoring
equipment on board to transmit information to relevant authorities or
satellite systems to monitor smoke stacks.68 The MEPC has agreed to
consider further measures to promote consistent implementation of
the0.50 percentsulphurlimit,suchasmeasurestofacilitatedetection
of non- compliance by port officers, the development of a standard for-
mat for reporting non- availability of compliant oil and other mechan-
isms to encourage verification for compliant fuels supplied to ships.69
A further problem noted by the ITF/OECD study with respect to
enforcement is the limited number of sanctions for detected cases and
the low fines. The study notes that ‘sanctions hardly ever surpass the
cost savings of ship operators due to non- compliance’ so there is no
54Molenaar (n 51) 183. See also W van Reenen, ‘Rules of Reference in the New Convention on
the Law of the Sea, in Particular in Connection with the Pollution of the Sea by Oil from
Tankers’ (1981) 12 Netherlands Yearbook of International Law 3, 8–13; P Birnie, A Boyle and
C Redgwell, International Law and the Environment (3rd edn, Oxford University Press 2009)
55Y Tanaka, ‘Regulation of Greenhouse Gas Emissions from International Shipping and
Jurisdiction of States’ (2016) 25 Review of European, Comparative and International
Environmental Law 333, 339.
56Birnie et al (n 54) 389; Molenaar (n 51) 184; van Reenen (n 54) 13–16.
57LOSC (n 48) art 222, 220(2) and Part II, Section 3.
58ibid art 220(5)–(6) provides for physical inspection and proceedings, including detention
only for violations ‘resulting in a substantial discharge causing or threatening significant pol-
lution of the marine environment’ and ‘discharge causing major damage or threat of major
damage to the coastline’, respectively. See Tanaka (n 55) 229.
59MARPOL (n 4) Annex VI, Regulations 10–11 MARPOL. The general provisions of MARPOL
art 5, 6(2) and 7(1) also apply with respect to port States.
60MEPC 70/18 (n 16) paras 5.10–5.15; IMO, ‘Guidelines for Onboard Sampling for the
Verification of the Sulphur Content of the Fuel Oil Used on Board Ships’ (MEPC.1/Circ, 864,
9 December 2016).
61LOSC (n 48) art 220(1).
62Molenaar argues that Article 218 also applies to emissions in violation of MARPOL Annex
VI rules by virtue of Regulation 11(6) MARPOL Annex VI, but acknowledges that ‘proving that
emission violations have occurred beyond the maritime zones of the port’s coastal state
seems even more difficult than for discharge violations’. This would probably apply among
parties to MARPOL and the LOSC (due to the uncertain status of this provision in custom;
Molenaar (n 51) 508–509.
63See T Keselj, ‘Port State Jurisdiction in Respect of Pollution from Ships: The 1982 UN
Convention on the Law of the Sea and the Memoranda of Understanding’ (2010) 30 Ocean
Development and International Law 127. See the IMO website, with links to regional MOUs
. The Paris MOU list of
detentions shows that vessels have been detained for non- compliance with SOx measures; see
64Tanaka (n 55) 342.
65ITF/OECD report (n 2) 41.
68EEA (n 1) 19–24; this study reviews certain monitoring activities which provide information
on ship movement and fuel consumption. See also ITF/OECD report (n 2) 41.
69MEPC 70/18 (n 16) para 5.55. See also MEPC 70/5/2 (n 16).
deterrent to comply with the regulation.70 As noted in the European
Union (EU) Directive on reduction of the sulphur content of fuels,
there is a need for ‘effective, proportionate and dissuasive penalties’ to
‘deprive those responsible of the economic benefits derived from their
infringement and that those fines gradually increase for repeated in-
fringements’.71 Denmark, for example, has not prescribed a max imum
for the penalty but requires the equalization of the penalty to the cost
advantage of the ship in the specific voyage.72
The IMO Audit Scheme, which became mandatory in January
2016,73 may provide a further tool to enhance implementation and
compliance with MARPOL Annex VI. The Sub- Committee on
Implementation of IMO Instruments has a broad mandate to assess
and review the implementation of IMO instruments by States with the
view to identifying challenges and difficulties, and to consider pro-
posals for assisting States to comply with these instruments.74 This
auditing process may provide targeted assistance to States regarding
implementation of the relevant rules,75 but it can also feed back to the
MEPC concerning needs for further regulatory measures.
2.3 | Negotiations for further measures:
challenges and prospects
Recent negotiations in the MEPC concern the adoption of technical
guidelines to enhance the implementation of the regulatory frame-
work, and further measures to tackle emissions and improve fuel oil
quality. An interesting issue in these discussions concerned whether
the IMO could or should regulate not only the receivers of the fuel
(ships) but also the supply chain in order to enhance the quality of fuel
oil. Proposals, supported by the industry,76 provided for the ‘develop-
ment of appropriate measures to mandate quality control prior to fuel
oil being delivered to a ship and providing possible actions to ensure
proper enforcement of fuel oil quality control’.77 Sponsoring States
argued that ‘quality control of bunker fuel prior to delivery to ships is
necessary to address compliance problems related to fuel oils’, and
that the responsibility should not be only on the purchaser of fuel oil.78
This is an issue which has also been discussed in the IMO’s Maritime
Safety Committee as it also relates to safety considerations.79 In the
relevant discussions in MEPC 67, States were divided on whether the
Committee should adopt non- mandatory guidelines80 or mandatory
measures as an amendment to Annex VI.81 The key argument against
mandatory measures concerned the fact that the relationship between
the ship and the bunker supplier is regulated by a commercial contract
which provides effective guarantees in cases of breach of contract
(provision of non- compliant fuel). Opponents of mandatory measures
argued that the State should not intervene in this private/market-
based relationship.82 It was also noted that mandatory measures
would be problematic with respect to enforcement, due to the com-
plexity in the fuel oil supply chain for ships.83 The Committee decided
to discontinue this discussion as the majority of States were against
mandatory regulation.84 However, it decided to develop guidance on
best practice with respect to three stakeholders’ conduct: fuel oil pro-
viders, fuel oil purchasers/users and member States/coastal States,85
which will also reflect aspects of the provision of compliant quality fuel
oil. Whereas technical guidelines and circulars are important means for
clarifying uncertainties in the mandatory rules and facilitating compli-
ance, guidance on best practice is a weak instrument for regulating
behaviour as it can be ignored – as it has happened in practice – by the
relevant actors without consequences.86
An issue of concern for some States is the current regulation of
NOx. It has been suggested that the current framework is inadequate
as it regulates mainly new vessels.87 This issue has not been discussed
in the IMO recently, but the EU is considering further measures to
regulate NOx emissions for existing vessels. The following measures
have been suggested: slow steaming with a NOx levy as an alternative
compliance option and use of revenues for abatement measures; a
70ITF/OECD report (n 2) 42.
71Directive 2016/802/EU (n 10) preamble, paras 29 and 43.
72ITF/OECD report (n 2) 42.
73MEPC 66/21 (n 26) paras 6.3–6.7.
74IMO Resolution A.1070(28), ‘IMO Instruments Implementation Code (III Code)’ (A 28/
75Technical problems may be referred to the Technical Cooperation Committee (see Articles
42–46 of the Convention on the IMO (adopted 6 March 1949, entered into force 17 March
1958) 289 UNTS 3) and its Integrated Technical Cooperation Programme, which can provide
further assistance to States.
76IMO, ‘Comments on Application of Regulations 14 and 18 of MARPOL Annex VI on Bunker
Fuel Quality’, submitted by IBIA and BIMCO (MEPC 66/4/26). They stress the importance of
the fuel quality for crew health, ship safety and environmental protection; shipping industry
associations were co- sponsors of IMO, ‘Application of Regulations 14 and 18 of MARPOL
Annex VI on Bunker Fuel Quality’, submitted by Liberia et al (MEPC 67/4/9); see also IMO,
‘Comments on Application of Regulations 14 and 18 of MARPOL Annex VI on Bunker Fuel
Quality’, submitted by the International Association of Ports and Harbors (IAPH) (MEPC
67/4/10); IMO, ‘Application of Regulations 14 and 18 of MARPOL Annex VI on Bunker
Quality’, submitted by IBIA (MEPC 67/4/14).
77See IMO, ‘Application of Regulations 14 and 18 of MARPOL Annex VI on Bunker Fuel
Quality’, submitted by Liberia, the Marshall Islands, the International Association of
Independent Tanker Owners (INTERTANKO) and the International Association of Dry Cargo
Shipowners (INTERCARGO) (MEPC 66/4/16/Rev.1); MEPC 67/4/9 (n 76).
78MEPC 67/4/9 (n 76) paras 4–5; the sponsors of this document stressed that ‘several parties
to MARPOL Annex VI have already put in place effective quality control measures over local
bunker fuel suppliers, which may serve as a good basis for further work in development of
such procedures’.
79See statement by Cook Islands, IMO, ‘Report of the MEPC on its 67th Session’, Annex 19.
See also IMO, ‘Safety Implications Arising from the Supply of “Out of Specification” Marine
Fuels’, submitted by ICS and International Parcel Tankers Association (IPTA) (MSC 93/INF.8).
80IMO, ‘Report of the MEPC on its 67th Session’ (MEPC 67/20) para 4.26; see IMO,
‘Comments on Documents MEPC 67/4/9, MEPC 67/4/10 and MEPC 67/4/14, Application
of Regulations 14 and 18 of MARPOL Annex VI on Bunker Fuel Quality’, submitted by the
United States (MEPC 67/4/24).
81MEPC 67/20 (n 80) para 4.27; see also ibid Annex 19 (Statements by Cook Islands and
IPTA). Shipping and port associations supported by States operating open registries were
mainly in favour of regulating the supply chain and thus shifting the burden to oil providers.
82See MEPC 67/4/24 (n 80).
83IMO, ‘Report of the MEPC on its 68th Session’ (MEPC 68/21) para 3.52.9; IMO, ‘Report of
the Correspondence Group on Fuel Oil Quality’, submitted by the United States (MEPC
68/3/4) Annex 1 (Coordinator’s summary).
84IMO, ‘Report of the MEPC on its 69th Session’ (MEPC 69/21) paras 5.19–5.20. See also
IMO, ‘Report of the Correspondence Group on Fuel Oil Quality’, submitted by the United
States (MEPC 69/5/3); and IMO, ‘Report of the Correspondence Group on Fuel Oil Quality
– Collation of Comments’, submitted by the United States (MEPC 69/INF.7).
85MEPC 69/21 (n 84) paras 5.12–5.22.
86See comment by IPTA in MEPC 67/20 (n 80) Annex 19.
87Winnes et al (n 25) 7–8; K Folkert Boersma et al, ‘Ships Going Slow in Reducing their NOx
Emissions: Changes in 2005–2012 Ship Exhaust Inferred from Satellite Measurements over
Europe’ (2015) 10 Environmental Research Letters 074007.
stand- alone NOx levy with no earmarking of revenues; and a NOx levy
with revenues used to fund abatement measures.88 Despite sugges-
tions for regulated slow steaming as part of the measures for air pollu-
tion and climate change,89 the IMO has refrained from providing for
this. With respect to levies, in contrast to discussions on the reduction
of GHG emissions, economic instruments for air pollutants have only
been marginally discussed.90 In the process of the revision of Annex VI,
the Bulk Liquids and Gases (BLG) Sub- Committee con sidered eco-
nomic instruments such as emissions trading, differentiated fairway
dues and other similar schemes to be implemented on a voluntary basis
and within the EEZ of coastal States as part of Regulation 4 on
Equivalents,91 but it did not recommend their introduction in the re-
vised Annex VI.92 This was not further discussed in the MEPC.
The MEPC has also been working on measures to enhance energy
efficiency and reduce GHG emissions. A number of measures have been
adopted, namely the Energy Efficiency Design Index for new ships, the
Ship Energy Efficiency Management Plan and a mandatory data collec-
tion system.93 In October 2016, the MEPC further approved a ‘Roadmap
for developing a comprehensive IMO strategy on the reduction of GHG
emissions from ships’,94 with a view to contributing to the international
efforts for tackling climate change in light of the objective endorsed in
the Paris Agreement to ‘hold the increase in the global average tem-
perature to well below 2°C above pre- industrial levels’.95
Negotiations on the reduction of GHG emissions have been con-
tentious, especially related to the application of the principle of com-
mon but differentiated responsibilities, a fundamental principle of the
United Nations Framework Convention on Climate Change, and its
interaction with the IMO principles of no more favourable treatment
and universality.96 In contrast to the negotiations on GHG reduction
from ships, there have been no discussions for the potential applica-
tion of differential treatment to measures for the reduction of non-
GHG air pollutants from international shipping. The measures adopted
apply universally to all vessels, in line with the principles of the IMO of
non- discrimination and no more favourable treatment. However, the
potential impact of such measures upon trade and the interests of de-
veloping States – notably remote small island States – has been raised
as an issue to be taken into consideration, especially related to cost-
effectiveness and flexibility in the implementation.
The relationship between measures to reduce emissions of GHGs
and air pollutants should be explored further, and an integrated ap-
proach is required especially related to joint benefits of the measures
and trade- offs of mitigation policies.97 This is an issue which has been
raised by the shipping industry, whose representatives have noted that
the regulatory framework is piecemeal and more coordination of the
measures is needed.98 For example, operational measures such as slow
steaming could have beneficial effects for both air pollution and climate
change. On the other hand, the impact of the potential use of alternative
fuels on climate change and GHG emission reductions should also be
taken into account with respect to compliance with air pollution mea-
sures. The data collection system adopted for GHG emissions could also
include other air pollutants to provide a clearer view of the extent of the
problem99 and the potential need for further measures. Similarly, any
market- based mechanisms for the reduction of carbon dioxide (CO2)
emissions should take into account air pollu tants and their impact.100
The intersection between measures to reduce air pollutants and
to tackle climate change can be demonstrated in the recent negotia-
tions in the MEPC to address the problem of black carbon. Black car-
bon has been found to have health and environmental impacts and to
contribute to atmospheric warming and climate change.101 The im-
pacts are particularly severe for the Arctic as the warming effect is
higher than CO2 ‘as it absorbs incoming and snow- reflected radiation
and accelerates snow and ice melting when deposited to those sur-
faces’.102 Reduction of black carbon – a short- lived climate pollutant
compared to the long lifespan of CO2 – can have a ‘near immediate
climate benefit and a slowing of Arctic ice melt’.103 The contribution of
shipping to global black carbon emissions is estimated at
88Winnes et al (n 25) 36–60. This study examined policy alternatives and assessed them vis-
à-vis certain criteria (i.e., environmental effectiveness, costs, political feasibility, etc.) and
shortlisted the aforementioned three options as more appropriate.
89See J Faber et al, ‘Regulated Slow Steaming in Maritime Transport’ (CE Delft 2012)>; see
also .
90D Harrison et al, ‘Economic Instruments for Reducing Ship Emissions in the EU’ (Nera
Economic Consulting 2005). See IMO, ‘Information on a Study on Emission Trading for
Sulphur and Nitrogen Oxides’, submitted by Sweden (MEPC 57/INF.5).
91IMO, ‘Report to the Maritime Safety Committee and the MEPC’ (BLG 11/16) paras 5.35–
5.37, 5.56.5; see also the United Kingdom’s proposal for an emission trading scheme; IMO,
‘Changes to MARPOL Annex VI Necessary to Permit the Use of Economic Instruments to
Reduce Emissions from Ships’, submitted by the United Kingdom (BLG 11/5/17).
92MEPC 57/21 (n 12) para 4.26.9; see IMO, ‘Urgent Matters Emanating from BLG 12 –
Review of MARPOL Annex VI and the NOx Technical Code’, Note by the Secretariat (MEPC
57/4/23) para 11.5.
93IMO Resolution MEPC.203(62), ‘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 (Inclusion of Regulations on Energy
Efficiency for Ships in MARPOL Annex VI)’ Annex 19, in MEPC 62/24 (n 32). The Regulations
provide for the Energy Efficiency Design Index for new ships, and for a Ship Energy Efficiency
Management Plan for all ships. See also IMO Resolution MEPC.229(65), ‘Promotion of
Technical Cooperation and Transfer of Technology Relating to the Improvement of Energy
Efficiency of Ships’ in MEPC 65/22 (n 41) Annex 4; and IMO Resolution MEPC.278(7),
‘Amendments to MARPOL Annex VI (Data Collection System for Fuel Oil Consumption for
Ships)’ in MEPC 70/18 (n 16) Annex 3.
94MEPC 70/18 (n 16) Annex 11 and discussions in paras 7.6–7.23.
22 April 2016, entered into force 4 November 2016)
background/convention/application/pdf/english_paris_agreement.pdf> art 2(1).
96See the more recent discussions in the MEPC for the adoption of the Roadmap and com-
ments on CBDR, MEPC 70/18 (n 16) para 7.11; see also S Kopela, ‘Climate Change, Regime
Interaction and the Principle of Common but Differentiated Responsibility: The Experience of
the International Maritime Organisation’ (2014) 24 Yearbook of International Environmental
Law 70.
97EEA (n 1) 54, 56; IMO, ‘A Goal- Based Approach to Air Emissions’, submitted by ICS (MEPC
56/4/14) paras 4–5.
98Lister et al (n 34) 190.
99Suggested by Winnes et al (n 25) 38. An integrated measurement, reporting and verification
system for GHG and air pollutant emissions has also been suggested by EEA (n 1) 7, ‘to pro-
vide better information on the co- benefits and trade- offs on related policies in Europe’.
100EEA (n 1) 56.
101IMO, ‘Investigation of Appropriate Control Measures (Abatement Technologies) to Reduce
Black Carbon from International Shipping’, Note by the Secretariat (BLG 17/INF.7) 7.
102ibid 8; see also C Cavazos- Guerra et al, ‘Clean Air and White Ice: Governing Black Carbon
Emissions Affecting the Arctic’ in K Keil and S Knecht (eds), Governing Arctic Change: Global
Perspectives (Palgrave Macmillan 2017) 233–234.
103ibid 231–232.
1–2 percent,104 but it has been found that ‘ships emit more particu-
late matter and black carbon per unit of fuel consumed than other
fossil fuel combustion sources due to the quality of fuel used’.105 Black
carbonemissionsfromshippingrepresent2.5 percentofArcticblack
carbon emissions, but taking into account the potential opening of
navigational routes in the Arctic, studies predict a significant increase
by 2050 if no measures are taken.106 Discussions in the IMO have
focused on three key aspects: (i) developing a definition; (ii) consider-
ing measurement methods; and (iii) investigating appropriate meas-
ures to reduce emissions.107 Some progress has been made with the
adoption of a definition of black carbon as a first step for the develop-
ment of measurement methods and data collection.108 A measure-
ment and reporting protocol for voluntary data collection of black
carbon has been developed,109 and information has been provided to
the Pollution, Prevention and Response (PPR) Sub- Committee con-
cerning various studies conducted in line with this protocol.110
Coordination with other international organizations and bodies, such
as the Arctic Council and the Convention on Long- Range
Transboundary Air Pollution, which are considering measures to tackle
black carbon should be part of the discussions in the MEPC.111 Key
issues in the negotiations which will need to be balanced include the
need for further data on black carbon emissions to ensure an informed
decision, the need to act swiftly due to the urgency of the problem
and the need for the measures to be ‘proportionate, cost- effective
and have demonstrable benefits’.112 The PPR Sub- Committee has
agreed to identify the most appropriate method for measuring black
carbon by 2018 and to investigate appropriate control measures to be
considered by the MEPC by 2019.113
Given that the impact of air pollutants from ships on human health and the
environment is particularly felt by populations living in ports and coastal
cities, States have adopted measures to tackle air pollution from ships in
their maritime zones and ports. In most instances, these measures are in
implementation of the global IMO regulatory framework, but some States
have been proactive in their approach and have adopted stricter standards.
The EU has enacted legislation regulating the sulphur content of
marine fuels which in some instances goes beyond the global regula-
tory framework established by the IMO. Directive 2005/33 provided
strictersulphuroxideemissionsstandards(1.5 percentsulphur)forthe
North Sea in pollution control zones, which included the territorial sea
and the EEZ of Member States.114 The North Sea was designated by
the IMO as an ECA shortly after the Directive was adopted, but the EU
legislation was implemented earlier than the entry into force of IMO
regulation.115 Stricter limits for the maximum sulphur content were
alsoprovided forpassengerships (1.50 percent)in theterritorial sea
and the EEZ.116 The preamble to Directive 2012/33 noted that ‘pas-
senger ships operate mostly in ports or close to coastal areas and their
impacts on human health and the environment are significant’ and the
aim is to ‘improve air quality around ports and coasts’.117 This discrep-
ancywill disappearonce theglobal 0.5 percentsulphur limitwill be-
come effective in 2020. The Directive also provided for 2020 as the
effectivedate for the 0.50 percent limit; ifthe IMO had decided to
postpone the entry into force of this limit until 2025 there would have
been a discrepancy between the global and regional standards. It could
be argued that this EU policy played a role in the consensus achieved
in the MEPC to retain 2020 as the effective date despite strong dis-
agreements, in order to avoid fragmentation of the standards and to
ensure global regulation upon which the industry relies.118
California has also adopted legislation preceding the global legal frame-
work and the designation of the area off its coast as an ECA. In 2009, it
enactedregulationsrequiringamaximumsulphurcontentof1.5or0.5 per-
cent(formarinegasoilormarinedieseloil,respectively)and0.1 percentby
January 2012 for vessels operating within 24 naut ical miles off its coast-
line.119 With the designation of the North American ECA, which prescribed
amaximumof1 percentbyAugust2011and0.1 percentbyJanuary2015,
the Californian standards were validated by the IMO.
104DA Lack et al, ‘Light Absorbing Carbon Emissions from Commercial Shipping’ (2008) 35
Geophysical Research Letters.
105BLG 17/INF.7 (n 101) 7.
106JJ Corbett et al, ‘Arctic Shipping Emissions Inventories and Future Scenarios’ (2010) 10
Atmospheric Chemistry and Physics 9689.
107MEPC 62/24 (n 32) para 4.20; the work plan was based on IMO, ‘Work Plan for the
Reduction of Black Carbon Emissions from International Shipping’, submitted by Norway
(MEPC 62/4/10).
108MEPC 68/21 (n 83) para 3.26.
109MEPC 70/18 (n 16) para 5.4.
110IMO, ‘Mitigation of Black Carbon Emissions by Ships in Arctic Waters’, submitted by
Friends of the Earth International (FOEI), World Wildlife Fund for Nature (WWF), Pacific
Environment and CSC (PPR 4/9/5). See IMO, ‘Report to the MEPC’ (PPR 4/21) para 9.3.1.
111IMO, ‘Report to the Maritime Safety Committee and the MEPC’ (BLG 16/16) para 15.8; see
Cavazos- Guerra et al (n 102) 255.
112See MEPC 68/21 (n 83) paras 3.23–3.29; IMO, ‘Report to the MEPC’ (PPR 3/22) paras
8.1–8.6; IMO, ‘Report of PPR Sub- Committee to MEPC’ (PPR 4/21) para 9. See IMO,
‘Consideration of Black Carbon Emissions’, submitted by the IPIECA and the Oil Companies
International Marine Forum (BLG 16/15/3), listing key questions that should be addressed by
the Sub- Committee in its consideration of black carbon; see also IMO, ‘Mitigation of Black
Carbon Emissions by Ships in Arctic Waters’, submitted by FOEI, WWF, Pacific Environment
and CSC (PPR 4/9/5) para 11.
113PPR 4/21 (n 110) para 9.18.
114Directive 2005/33/EC of the European Parliament and of the Council of 6 July 2005
amending Directive 1999/32/EC [2005] OJ L191/59 art 4a(2)(b).
115The effective date for the amendment of MARPOL was 22 November 2007 whereas the
EU’s implementation date was 11 August 2007; see Ringbom (n 50) 427–428. He points out
that ‘the implementation of the regional rules was very closely linked to the existence of a
corresponding international rule’; ibid 429.
116Directive 2012/33/EU amending Council Directive 1999/32/EC as regards the sulphur
content of marine fuels [2012] OJ L191/1 art 1(6)(d). This Directive has been replaced by
Directive (EU) 2016/802 (n 10), which also includes the relevant provision on passenger ves-
sels (art 6(5)). For an assessment of this aspect of Directive 2012/33 in the light of interna-
tional law, see Ringbom (n 50) 264.
117Directive 2012/33/EU (n 116) preamble, para 14, replaced by Directive 2016/802 (n 10)
preamble, para 27.
118See MEPC 57/21 (n 92) para 4.9. The European Commission noted that the EU was com-
mitted to a global solution but ‘should it not be possible for the Organisation to maintain the
established timelines, the Commission retained the right to initiate appropriate action to pro-
tect the environment’; ibid.
119Fuel Sulfur and other Operational Requirements for Ocean- Going Vessels within California
Waters and 24 Nautical Miles of the California Baseline, 13 CCR, Section 2299.2>; the regulation does not apply to ves-
sels exercising the right of innocent passage. For an overview of the scheme and background
information, see SP Broder and JM Van Dyke, ‘The Urgency of Reducing Air Pollution from
Global Shipping’ in A Chircop (ed), The Regulation of International Shipping: International and
Comparative Perspectives (Martinus Nijhoff 2012) 278.
The scope of legislative and enforcement jurisdiction of the coastal
and port State, and thus the limits of unilateral action, are not very clear.
The coastal State can adopt standards that are stricter than international
standards in its territorial sea, but these standards should not apply to the
CDEM of the vessel, unless they are giving effect to ‘generally accepted
international rules or standards’.120 Emission standards, similarly to dis-
charge standards, are generally perceived not to be CDEM standards.121
Standards related to the content of fuel are more difficult to classify.
Molenaar argues that ‘the regulation of the sulphur content in fuel oil and
fuel oil quality must be regarded as an equipment standard, as it concerns
a requirement to ensure that an emission standard is met’.122 The key
differentiating factor, however, between regulation of the content or
quality of fuel oil and CDEM standards is that the former does not pre-
scribe the use of equipment or construction/design of the vessel, nor can
fuel itself be regarded as equipment. Compliance with fuel standards may
require the use of equipment (i.e., separate tanks to carry different types
of fuel) or design- and construction- related methods (i.e., abatement
techniques such as exhaust system or certain types of engine design),123
but these, as in the case of emissions standards, are incidental as a means
of enhancing cost- effectiveness and flexibility in the implementation.
Different conclusions have been reached based on a purposive
interpretation of Article 21(2) LOSC and the scope of CDEM stand-
ards. Ringbom stresses the impact of these standards upon innocent
passage, the measures’ intrusiveness and the possibility for a re-
quirement of ‘changes to the ship’s equipment’, and concludes that
‘it is probably safer to consider fuel quality requirements as being
analogous to CDEM standards for the purpose of establishing the
jurisdictional limits of coastal state laws in the territorial sea’.124 On
the contrary, a EU- commissioned study argues that CDEM should
be interpreted narrowly in Article 21(2) and thus not cover fuel con-
tent standards, as they pose an exception to the general principle of
coastal state sovereignty in the territorial sea.125 It is true that fuel
standards may have CDEM- related implications, but as long as the
CDEM elements are not prescribed, fuel standards should not be
regarded as CDEM but emission- related standards.126 By contrast,
measures related to equipment or engine- related requirements are
CDEM standards,127 and the coastal State would not be able to reg-
ulate stricter than ‘generally accepted’ standards. The stricter
regulation of sulphur fuel content for passenger vessels by the EU in
the territorial sea would thus be in line with the LOSC, though ad-
mittedly different views exist. Enforcement in the territorial sea
would depend on the legality of prescriptive jurisdiction and would
have to be in line with the obligation not to hamper innocent
In the EEZ, the coastal State can ‘adopt laws and regulations for the
prevention, reduction and control of pollution from vessels conforming to
and giving effect to generally accepted international rules and standards
established through the competent international organisation’.129 The
coastal State can thus only legislate and enforce international standards
(i.e., MARPOL Annex VI) in its EEZ, and not nationally prescribed stand-
ards. In this respect, the application of the aforementioned measures ad-
opted by the EU in the EEZ would contravene international law.
However, States have broader legislative and enforcement powers in
their ports, and port State jurisdiction has been used to counterbalance
the limitations of flag State jurisdiction but also the inadequacies of inter-
national rules.130 Ports are part of the territory of the State where the
latter exercises sovereignty. Therefore, jurisdiction can be exercised on
the basis of the territoriality principle for activities which take place in the
port. Ports can also take enforcement action for violation of their national
laws in the territorial sea and EEZ,131 though this will need to be in line
with the legislative competence of the coastal State in the territorial sea
and the EEZ. Therefore, enforcement of the EU legislation concerning
sulphur content of passenger vessels for violations in the EEZ cannot take
place in ports, since, as argued above, coastal States cannot legislate
more strictly than international standards in the EEZ.132
States can regulate entry into their ports by prescribing nation-
ally determined entry requirements for the ‘prevention, reduction
and control of pollution’.133 However, there are limitations to the
legislative and enforcement jurisdiction of the port State, especially
related to the extraterritorial effects of these measures. A distinc-
tion can be drawn between regulating condition- related standards
(i.e., CDEM) and operation- related standards and other activities.134
120LOSC (n 48) art 211(4) and 21(2). See also ibid art 42(1)(b) with respect to straits used for
international navigation.
121Molenaar (n 51) 21–22, 502. This would include, for example, the measures provided for
ozone- depleting substances (Regulation 12(2)) and NOx (Regulation 13) of MARPOL Annex VI.
122Molenaar (n 51) 67, 432, 511.
123See Ringbom (n 50) 434, regarding the CDEM- like features of fuel standards; he argues
though that despite these characteristics, they do not amount to CDEM standards within the
meaning of LOSC (n 48) art 21(2).
124Ringbom (n 50) 434–435. He refers to LOSC (n 48) art 24(1) with respect to hampering
innocent passage.
125BMT Murray Fenton Edon Liddiard Vince Limited, ‘Study on the Economic, Legal
Environmental and Practical Implications of a European Union System to Reduce Ship
Emissions of SO2 and NOx’ No 3623 (2000) (BMT Study) Appendix 4, para 70; this study
concluded that a ‘measure limiting the sulphur content of marine bunkers should be seen as
an emission standard which has merely consequential (and often very minor) effects on
CDEM matters’; it also refers to the possibility of a different interpretation for CDEM for
Article 211(6)(c), but it does not favour this discrepancy.
126Similarly, BMT Study (n 125) para 70.
127Molenaar (n 51) 67.
128LOSC (n 48) art 220(2) and 24(1).
129ibid art 211(5) (emphasis added).
130See C Ryngaert and H Ringbom, ‘Introduction: Port State Jurisdiction: Challenges and
Potential’ (2016) 31 International Journal of Maritime and Coastal Law 379; S Kopela, ‘Port
State Jurisdiction, Extraterritoriality, and the Protection of Global Commons’ (2016) 47 Ocean
Development and International Law 89, 89–90.
131LOSC (n 48) art 220(1). Molenaar refers to this as ‘quasi- territorial jurisdiction’; see EJ
Molenaar, ‘Port State Jurisdiction: Toward Comprehensive, Mandatory and Global Coverage’
(2007) 38 Ocean Development and International Law 225.
132Ringbom (n 50) 374–375 invokes various reasons related to the legality of the port State
measures and argues that from a port State perspective the scope of the Directive is in com-
pliance with the law of the sea, referring to Article 220(1); however, this provision necessi-
tates that the prescriptive jurisdiction in the territorial sea and EEZ is in line with the LOSC for
the port State to assume enforcement jurisdiction, which, as admitted by Ringbom, is not the
case with this Directive. He also invokes the international legitimacy of the rule with respect
to international standards, the ‘host State’ argument and finally the indeterminacy of the en-
forcement measures. He argues, however, that extension of the requirement to cover the
high seas would be a major challenge with respect to the justification of a jurisdictional link.
133LOSC (n 48) art 211(3). It is generally accepted that there is no customary right of entry of
foreign vessels into the ports of a foreign State; see L de La Fayette, ‘Access to Ports in
International Law’ (1996) 11 International Journal of Maritime and Coastal Law 1; AV Lowe,
‘The Right of Entry into Maritime Ports in International Law’ (1977) 14 San Diego Law Review
134See B Marten, Port State Jurisdiction and the Regulation of International Merchant Shipping
(Springer, 2014) 59–62; Kopela (n 130) 95–98.
A port State may enact laws requiring vessels to comply with CDEM
standards both as entry requirements and rules to comply with while
in port. Despite the fact that there is an extraterritorial effect in
these measures, as the vessel will need to comply with them even
when outside a State’s maritime zones, the measure relates to a con-
tinuous activity which also takes place in port and the extraterritor-
ial effect is ‘incidental’ due to the static nature of the measures.135
Despite the fact that – as argued above – regulation of the content
of bunker fuel is not a CDEM standard (though it may have CDEM-
like elements), a port State could adopt and enforce measures re-
quiring the carrying of certain types of fuel on board, as the breach
in this instance will arise in the port. By contrast, the port State
cannot regulate activities or operations (such as emission stand-
ards, the use of certain type of fuel oil or of abatement techniques)
in areas outside its national jurisdiction. Marten argues that State
practice favours an expansive approach to port State jurisdiction
based on the right of a State to regulate entry into its ports.136
There is, however, a continuing debate concerning the extraterritor-
ial effect of port State jurisdiction (especially related to the limits
between territoriality and extraterritoriality) and other jurisdic-
tional bases, such as the effects doctrine or the principle of com-
mon concern, have been suggested as justifying such an
The use of market- based instruments, such as environmentally differ-
entiated shipping dues payable in ports,138 charges, levies, taxes or a cap-
and- trade system linked to emissions in a specific region or specific
voyages,139 may also raise concerns of extraterritorially. Whereas a State
can adopt economic instruments covering emissions in its ports and its
territorial sea, measures referring to costs for emissions beyond the terri-
torial sea may not be covered by the territoriality principle as the port
State may be seen to enforce unilateral standards and regulate the activ-
ities of the vessels (i.e., use of bunker fuel and emissions) beyond its juris-
dictional competence.140 In the ATAA case – which concerned the legality
of the inclusion of aviation emissions in the EU’s emissions trading system
– the Court of Justice of the EU found that the territoriality principle pro-
vided a legal basis for the exercise of jurisdiction as the aircrafts were
‘physically in the territory’ despite the fact that ‘certain matters contribut-
ing to the pollution of air, sea or land territory of the member states ori-
ginate in an event which occurs partly outside the territory’.141 Despite
this favourable ruling, concerns have been raised in the literature regard-
ing the extraterritorial impact of such economic instruments, especially
with respect to the potential inclusion of CO2 emissions from shipping
into the EU emissions trading system.142
Unilateral measures may provide useful lessons and experience for
the IMO concerning the implementation of specific regulatory tools.143
They can also operate as an incentive and political pressure for global
regulation. The shipping industry is however critical of regional regula-
tion of shipping and has argued that this is not compatible with the
global character of the industry, and increases costs and complexity to
ship operations, as vessels will need to comply with different stan-
dards and rules in different areas of the world.144
As discussed above, the shipping industry has actively participated in the
discussions in the IMO. It is particularly interested in three interrelated
issues: (i) global regulation and certainty in the legal framework to allow
for clear investment plans;145 (ii) cost- effectiveness of measures, includ-
ing their application; and (iii) consistent implementation and enforce-
ment to avoid market distortion and competitive advantage of
non- complying companies. There has also been an interest in private ini-
tiatives for ‘green shipping’ based on voluntary private standards and
rating schemes. Initiatives such as the Clean Cargo Working Group,
Clean Shipping Index and Triple- E provide performance standards (met-
rics), including for air pollutant emissions (SOx, NOx), to rank and bench-
mark individual vessels.146 Members are normally cargo owners and
shipping companies. The Sustainable Shipping Initiative is another initia-
tive with the participation of cargo owners, shipping companies, ship-
builders, classification societies and two environmental nongovernmental
organizations with the main objective to promote policies for greener
shipping practices both at the international and national level.147 The
objective of these projects is to enhance environmental performance,
accountability, transparency and best practices in the shipping industry.
The impact of these initiatives is still rather limited due to the small
135Molenaar (n 131) 198; H Ringbom, ‘Global Problem – Regional Solution? International Law
Reflections on an EU CO2 Emissions Trading Scheme for Ships’ (2011) 26 Journal of Maritime
Law and Commerce 613; TL McDorman, ‘Port State Enforcement: A Comment on Article 218
of the 1982 Law of the Sea Convention’ (1997) 28 Journal of Maritime Law and Commerce
205, 315; RR Churchill, ‘Port State Jurisdiction Relating to the Safety of Shipping and Pollution
from Ships – What Degree of Extra- territoriality?’ (2016) 31 International Journal of Marine
and Coastal Law 442, 454–455.
136Marten (n 134) 233–235.
137Kopela (n 130) 104–110.
138BMT Study (n 125) paras 3–4, 209.
139Winnes et al (n 25) 38.
140Similar conclusion with some flexibility in BMT Study (n 125) para 209.
141Case C- 266/10, Air Transport Association of America (ATAA) and Others v Secretary of State
for Energy and Climate Change, ECLI:EU:C:2010:629 paras 128–129; airlines operating flights
landing or taking off from EU airports were required to submit emission allowances for their
flights, which were calculated based on the distance between the airport of departure and the
airport of arrival.
142See T Baurle et al, Integration of Marine Transport into the European Emissions Trading System
(Umweltbundesamt 2010) 85; and C Hermeling et al, ‘Sailing into a Dilemma: An Economic
and Legal Analysis of an EU Trading Scheme for Maritime Emissions’ (2015) 78 Transportation
Research Part A 34, 47–48. By contrast, a report by CE Delft (CE Delft, ‘Technical Support for
European Action to Reducing Greenhouse Gas Emissions from International Maritime
Transport’ (2009) 16) argues that the territorial principle can justify such measures due to the
presence of the vessel in port. Similarly, see A O’Leary, D Holyoake and M Ballesteros, ‘Legal
Implications of EU Action on GHG Emissions from the International Maritime Sector’
(ClientEarth 2011) 20.
143See, for example, IMO, ‘Report on the EU Implementation/Enforcement of Sulphur Oxides
(SOx) Regulations’, submitted by the European Commission (MEPC 70/INF.41), ‘providing the
resultsandexperience gatheredduring 18 monthsofsulphur enforcementbyEU Member
States in EU waters’.
144Lister et al (n 34) 189, 192.
145ibid 192: ‘ship- owners argue this uncertainty deters their investment in environmental pro-
tection. Moreover, considerable uncertainty relates to moving deadlines and weak enforce-
ment of IMO regulation’ and that ‘weak enforcement could penalise shipping companies,
which invest in environmental upgrading’.
146Taudal Poulsen et al (n 11) 62.
percentage of vessels participating,148 but it could grow especially with
the increase of awareness and pressure by cargo owners for green
Similar initiatives to provide incentives for green shipping have
been undertaken by ports around the world. The World Ports Climate
Initiative of the International Association of Ports and Harbors has
adopted the Environmental Ship Index, which is a voluntary system
providing information for the environmental performance of ships
related to emissions, and which offers a bonus for energy efficiency
management.149 Reduced port and fairway dues are applied by some
ports based on these ratings. However, the impact of these initia-
tives is rather limited due to the relatively small number of ports
participating and the port dues forming a small part of the vessels’
Despite interest in these schemes, the main drivers in decision
making for the cargo owners remain cost and reliability.151 The role
of these initiatives is more effective in the container sector (and not
bulk or tanker shipping), as there are closer links with the users of the
products/consumers, and there is thus more visibility and greater in-
centive for green shipping.152 A challenge for the industry which also
mitigates the effectiveness of these initiatives is ‘the lack of stand-
ardisation and verification of measures, inconsistency of data collec-
tion methodology and ranking’.153 The Sustainable Shipping Initiative
has attempted to streamline the process by comparing the various
private rating schemes established by the industry.154 Scott and col-
leagues have also found that the broader impact of these initiatives is
mitigated by limited transparency, low levels of ambition and lack of
data reliability.155 The fact that the information and data originate
primarily from the shipowners also creates concerns about the effec-
tiveness of these schemes.156 Lister and colleagues have suggested
that classification societies can play a role in the ‘set- up of indepen-
dent audits for their green rating data sets to improve the quality of
data available’.157 Coordination of these schemes and alignment with
global standards will enhance their contribution to reducing air pollu-
tion. A role has been suggested for the IMO in coordinating and or-
chestrating these schemes: ‘to improve global shipping perform ance,
the IMO will need to accept the sector’s governance challenges and
embrace its role as orchestrator: overseeing, leveraging and enabling
private and hybrid efforts as a complement to national and interna-
tional regulation’.158 Scott and colleagues have also argued for fur-
ther interaction between these private standards and legal regulation
– especially by the EU as a ‘meta- regulator’, which could ‘shape the
design and operation of private standards’ – though they argue that
the role of the IMO may be rather limited in this respect due to lack
of flexibility in decision making.159 The potential interaction between
private standards and the global regulatory regime has not been dis-
cussed in the MEPC.
Reducing air pollution from international shipping has been a com-
plex endeavour, as it involves a multiplicity of technical, operational
and market- based measures, the commercial availability of clean
fuel oil and technological innovations for the construction of mar-
ine engines and the development of abatement techniques, and the
coordination of various stakeholders and actors (flag States, oper-
ators, shipowners, fuel oil providers). The financial costs and impact
of the measures on the shipping industry, world trade and develop-
ment – including potential market distortion vis-à-vis other means of
transport – have also been complicating factors in the establishment
of a regulatory framework for reducing air pollutant emissions from
Despite the slow start and concerns expressed by the industry
about cost implications, the IMO has adopted technical measures
and guidelines to reduce air pollutant emissions from ships. Its re-
cent decision to maintain the early deadline for the entry into force
ofthe0.50 percent m/msulphurlimit wasperceivedas evidenceof
its determination to play a central role in the global regulation of air
pollution from ships and to contribute to cleaner maritime transport.
The success of the measures will depend on their effective implemen-
tation, compliance by shipowners and operators, and enforcement in
cases of non- compliance. Developing further measures to facilitate
detection of non- compliance, enhancing coordinated inspections
and actions by port States and ensuring the availability of compliant
fuel and alternative energy sources in ports should be a priority for
States and the IMO. NOx emissions remain an issue of concern due
to the limited scope of application of the existing regulations; further
meas ures should be explored, including the introduction of new ECAs.
Regulation of other air pollutants such as black carbon and a more
coherent approach for measures to tackle air pollution and climate
change are also required to mitigate climate, health and environmen-
tal risks.
Resolve in addressing these issues in an ambitious way by the IMO
will prevent unilateral and regional initiatives which are problematic for
the shipping industry in terms of costs and complexity. Self- regulation
via private or hybrid initiatives and standards can also play an import-
ant role, but it cannot substitute global regulation which provides the
industry with certainty for strategic investment planning. Coordination
between the private standards and the global regulatory regime would
enhance their coherence and provide a more effective self- regulatory
tool for the industry.
148Lister et al (n 34) 190–191.
150Lister et al (n 34) 191.
151Taudal Poulsen et al (n 11) 65.
152Lister et al (n 34) 190; Taudal Poulsen et al (n 11) 65.
153Taudal Poulsen et al (n 11) 62; Lister et al (n 34) 191–192.
154Lister et al (n 34) 190–191.
155J Scott et al, ‘The Promise and Limits of Private Standards to Reduce Greenhouse Gas
Emissions from Shipping’ (2017) 29 Journal of Environmental Law 231, 243–251. These au-
thors examine reduction of GHG emissions but the private initiatives they refer to also relate
to SOx and NOx emissions.
156Lister et al (n 34) 190, 192.
157ibid 193.
158ibid. 159Scott et al (n 155) 258–259.
How to cite this article: Kopela S. Making ships cleaner:
Reducing air pollution from international shipping. RECIEL.
Sophia Kopela is Lecturer in Law at Lancaster University Law
School. She holds an LLB from the University of Athens (Greece), an
LLM in Public International Law from the University of Nottingham
and a PhD in International Law of the Sea from Bristol University.
Her specialization lies in law of the sea, international environmen-
tal law and public international law, and she has published articles
in international journals and presented papers in international con-
ferences in these fields. She is the author of a monograph titled
Dependent Archipelagos in the Law of the Sea (Martinus Nijhoff/
Brill, 2013). She is also the book review editor of the International
Journal of Marine and Coastal Law.

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