A brief background of the history and framework of environmental regulation

Most people outside of the shipping industry – and many within it – believe the IMO to be the source of all international maritime legislation. Read on…

by Gillian Lovering

Most people outside of the shipping industry – and many within it – believe the IMO to be the source of all international maritime legislation. They see the IMO as an independent body that can make and enforce regulation and, when it appears to act slowly or not at all, is attacked for its inaction especially where environmental issues are concerned.

In fact, the IMO is little more than a meeting place where delegates from individual nation states can adopt rules and guidelines that individual countries should then pass domestic legislation to give to them legal effect. As an organisation, the IMO reserves voting rights for delegates representing nation states but allows other bodies such as classification societies, maritime industry trade bodies and NGOs to contribute to its proceedings.

International regulation of shipping relating to both safety measures and environmental issues predates the founding of the IMO in 1958 (then the Intergovernmental Maritime Consultative Organisation or IMCO) by many years.

International regulation of any activity is most commonly done by way of Conventions even though they may be referred to differently, for example the rules relating to carriage of goods by sea are usually referred to as the Hague Rules, but their true title is International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (“Hague Rules”), and Protocol of Signature.

A Convention is described in dictionaries as ‘an agreement between nations regulating matters of common interest’.

After its formation, the IMO was assigned responsibility for developing the SOLAS (Safety of Life at Sea) Convention which dates back to 1914 and also OILPOL (The International Convention for the Prevention of Pollution of the Sea by Oil) which was adopted in 1954.

SOLAS of course still exists but OILPOL has been succeeded by MARPOL (1974) which is now the main plank of IMO environmental regulation. Since the first MARPOL text was agreed in the early 1970s, a number of other issues have come under its umbrella. These have been added in the form of Annexes each dealing with a particular topic. Currently there are six annexes covering:

  •   MARPOL Annex I – Regulation for the prevention of pollution by oil
  •   MARPOL Annex II – Regulation for the control of pollution by noxious liquid substances
  •   MARPOL Annex III – Regulation for the prevention of pollution by harmful substances carried by sea in packaged form
  •   MARPOL Annex IV – Regulation for the Prevention of pollution by sewage from ships
  •   MARPOL Annex V – Regulation for the Prevention of pollution by garbage from ships
  •   MARPOL Annex VI – Regulation for the Prevention of air pollution from ships

As well as MARPOL, there are a number of other Conventions that are environmental related such as:

  •   Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
  •   International Convention on the Control of Harmful Anti Fouling Substances on Ships, 2001
  •   International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001
  •   International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004
  •   Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009


Establishing a convention

When the IMO adopts a Convention, it does not necessarily enter into force immediately. In most cases there is a requirement for the Convention to be ratified by a set number of nation states and those states must also between them represent a particular percentage of the world fleet by Gross Tonnage or some other trigger as defined in the Convention text. There is then a year or more before it enters into force.

This can take a considerable amount of time and demonstrates that even where the delegates to the IMO can agree the wording of a Convention it does not immediately become a regulation. The 2004 Ballast Water Convention for example, did not achieve its triggering ratification until September 2016 and became effective in September 2017. The 2009 Hong Kong Convention on ship recycling has an even more complex trigger point. For it to become effective it requires 15 states, representing 40% of the world merchant shipping by gross tonnage, and on average 3% of recycling tonnage for the previous 10 years.  It has so far been signed by 17 states including Panama, but the other two trigger points are a long way from being met.

While the Conventions cover the main points of the regulation, much of the finer detail will not be found in them but in the various Codes that are issued to supplement the Convention.

IMO framework

Development of SOLAS, MARPOL and the other Conventions falls to two committees – the Maritime Safety Committee (MSC) and the Maritime Environment Protection Committee (MEPC). These committees meet once or twice a year. Each of the two committees has a number of sub-committees under their jurisdiction that meet once a year and at each level there may be specialist working groups established to thrash out the details of a particular issue.

Once agreement has been reached by the working groups, their recommendations are debated further at sub-committee and committee level. Assuming all contentious points are finally resolved, the recommendation will be agreed and later adopted, after which they will be incorporated into appropriate Conventions or Codes.

Although the meetings of the IMO are not open to the general public, most of the documents presented are accessible on the IMODOCS website to registered users. In addition, many of the organisations attending meetings do give reports of proceedings to their members and a wider audience through press releases.

The delays and apparent inaction at the IMO come about because national governments – even those that are apparently in favour of regulation – do not take the necessary actions to give them effect. This can happen for a variety of reasons.

Even in governments there are differences in opinions. Whilst the persons sent as delegates to the IMO may have one view, others in government may not agree. Thus, it is not uncommon for a country to support a particular course of action at the IMO but decide not to pass the needed national legislation especially when to do so would alienate its electorate or vital national interests. In other cases, a change of government may be responsible for the change of direction.

On the other hand, nation states are free to pass whatever legislation they decide and to apply it in their own ports and territorial waters. The most recent examples of this is the action taken by several states to ban the use of exhaust gas cleaning systems or scrubbers in their waters. Mostly this has been done to prevent the discharge of scrubber washwater which many see as polluting. It should be noted that few, if any, of the states that have done this have actually prohibited the installation of scrubbers on ships under their flag.