Prepcom 1 Conservation and sustainable use of marine biological diversity of ABNJ. Policy brief IMO

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1 Prepcom 1 Conservation and sustainable use of marine biological diversity of ABNJ Policy brief IMO Overview 1 As a specialized agency of the United Nations, the International Maritime Organization (IMO) is the global standard-setting authority for the safety, security and environmental performance of international shipping. IMO s regulatory framework covers all aspects of technical matters pertaining to the safety of ships and of life at sea, efficiency of navigation, and the prevention and control of marine and air pollution from ships. 2 IMO also oversees the associated legal and administrative mechanisms for promoting co-operation among Member States and the availability of shipping services to world trade on a non-discriminatory basis IMO conventions, on entry into force, cover all ships, regardless of the flag they fly, as ships of nonconvention States entering the waters or ports of convention States are subject to the no more favourable treatment principle. IMO and UNCLOS 3 The IMO Convention was adopted 1948 and entered into force in 1958 (UNCLOS developed from ). The main purposes of the Organization, as cited in the IMO Convention, are: Article 1(a) "To provide machinery for cooperation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade; to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and prevention and control of marine pollution from ships". The Organization is also empowered to deal with administrative and legal matters related to these purposes; and [.] Article 1(d) To provide for the consideration by the Organization of any matters concerning shipping and the effect of shipping on the marine environment that may be referred to it by any organ or specialized agency of the United Nations. 4 IMO has 171 Member States and 77 international non-governmental organizations that enjoy consultative status with the Organization. In addition, to date 63 intergovernmental organizations have signed agreements of cooperation with IMO which allow these organizations to enjoy observer status with the Organization, meaning that they can attend and submit documents to IMO meetings as well as consult each other on matters of common interest with a view to ensuring maximum coordination of the work and activities of their respective organizations in respect of such matters. 5 Since 1958, some 53 treaties have been adopted, the vast majority of which are in force, In addition to supplement these treaties numerous measures such as guidelines, guidance, recommended practices and codes have been agreed under the IMO auspices,. 6 In summary IMO: Develops global regulations for international shipping; Adopts global treaties and guidelines at the intergovernmental level; and Member Governments are responsible for implementing and enforcing the adopted regulatory framework. 7 The role of IMO is acknowledged in UNCLOS and IMO s work is carried out in close cooperation and co-ordination with the activities of the UN and the other UN specialized agencies. UNCLOS Art 2 of Annex VIII mentions IMO explicitly: 1

2 in the field of navigation, including pollution from vessels and by dumping Recognized as the competent international organization - in connection with international shipping rules and standards in maritime safety, efficiency of navigation and the prevention and control of marine pollution from ships and by dumping. 8 Since 1982, formal acceptance of the most relevant IMO treaty instruments has increased greatly. As of January 2016, the three conventions that include the most comprehensive sets of rules and standards on safety, pollution prevention and training and certification of seafarers, namely, SOLAS 1, MARPOL 2 I/II and STCW 3, have been ratified by 162, 153 and 160 States, respectively (representing approximately 99% gross tonnage of the world's merchant fleet). The general degree of acceptance of these shipping conventions arises mainly from their implementation by flag States, which is strengthened by the fact that, under the principle of "no more favourable treatment", port States which are Parties to these conventions, respectively, are obliged to apply these rules and standards to vessels flying the flag of non-party States if they voluntarily enter the Port. 9 UNCLOS Art 217 and 218 also refers to enforcement by flag states and by port states. Port state control measures can therefore be applied in States which are parties to the IMO Convention; or indirectly, through UNCLOS and its State parties. 10 It is important to understand that IMO is the only body to change or agree arrangements applicable to international shipping. IMO is a longstanding institution with trust amongst governments and industry, organizations (IGO, NGO). Hence we should avoid creating another silo with respect to shipping. Existing IMO tools to protect the marine environment 11 Key area based management tools within IMOs regulatory framework include: 1. Special Areas under MARPOL (Annexes, 1, II, IV, V,) 4 and Emission Control areas under MARPOL Annex VI (2013 Guidelines for the designation of Special Areas under MARPOL, A.1087(28)) 2. Particularly Sensitive Sea Areas (PSSAs) (2005 Revised Guidelines for the identification and designation of PSSAs, A.982(24) and as amended by MEPC.267(68)) 3. Routeing, reporting and ship traffic services under SOLAS Protocol to the London Convention Ocean fertilization/marine geoengineering (resolution LP.4(8)) Special and Emission Control Areas under MARPOL 12 MARPOL was adopted through the IMO in 1973 and amended in 1978 and 1997 and kept updated with relevant amendments. The MARPOL Convention addresses pollution from ships by oil; by noxious liquid substances carried in bulk; harmful substances carried by sea in packaged form; sewage, garbage; and the prevention of air pollution from ships. MARPOL has greatly contributed to a significant decrease in pollution from international shipping and applies to 99% of the world s merchant tonnage. 13 In Annex I Prevention of pollution by oil, Annex II Control of pollution by noxious liquid substances, Annex IV Prevention of pollution by sewage from ships and Annex V Prevention of pollution by garbage from ships, MARPOL defines certain sea areas as "special areas" in which, for technical reasons relating to their oceanographical and ecological condition and to their sea traffic, the adoption of special mandatory methods for the prevention of sea pollution is required. Under the Convention, these special areas are provided with a higher level of protection than other areas of the sea and may encompass the maritime zones of several States, or even an entire enclosed or semi-enclosed sea area. Mainly found in EEZs with 1 International Convention for the Safety of Life at Sea (SOLAS), International Convention for the Prevention of Pollution from Ships, 1973, as amended by the 1978 Protocol (MARPOL). 3 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), MARPOL Annex I (operational and cargo-related oil waste), Annex II (noxious liquid substances), Annex III (packaged harmful substances), Annex IV (sewage), Annex V (garbage), and Annex VI (air pollution). 2

3 some enclosing high seas waters (Mediterranean). A Special Area designation can only become effective when adequate port reception facilities are provided for ships, in accordance with the provisions of MARPOL. Annex VI Regulations for the Prevention of Air Pollution from Ships establishes r Emission Control Areas with more stringent controls on sulphur oxide emissions (SOx) and nitrogen oxides (NOx) Emission Control Areas. An overview of Special Areas can be found at: 14 The 2013 Guidelines for the designation of Special Areas under MARPOL ensure that the interests of the coastal State, flag State, and the environmental and shipping communities are considered. Necessary information needed to assess a proposed Special Area includes: Oceanographic conditions - causing the concentration or retention of harmful substances in the waters or sediments of the area; Ecological conditions - indicating that protection of the area from harmful substances is needed to preserve (such as depleted, threatened or endangered marine species); and Vessel traffic characteristics normal MARPOL ship discharges would be unacceptable in the light of the existing oceanographic and ecological conditions in the area. 15 There are currently fourteen sea areas that are designated as Special Areas or Emission Control Areas, and two are located in areas beyond national jurisdiction. They are the Antarctic (south of Latitude 60 S) and the Mediterranean Sea (parts of which lie beyond national jurisdiction). Particularly Sensitive Sea Areas (PSSAs) 16 A PSSA is a sea area that needs special protection through action by IMO because of its significance for recognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities. It is used by IMO to designate PSSAs in and beyond the territorial sea with a view to the adoption of international protective measures regarding pollution and other damage caused by ships. The criteria for the identification of particularly sensitive sea areas and the criteria for the designation of special areas are not mutually exclusive. In many cases a Particularly Sensitive Sea Area may be identified within a Special Area and vice versa. At the time of designation of a PSSA, an associated protective measure, which meets the requirements of the appropriate legal instrument establishing such measure, must have been approved or adopted by IMO to prevent, reduce, or eliminate the threat or identified vulnerability. 17 The Revised Guidelines for the identification and designation of PSSAs offers guidance in the formulation and submission of applications for designation of PSSAs and allows for the assessment of such applications by IMO through its Marine Environment Protection Committee (MEPC). The Guidelines ensure that all interests (coastal and flag States, and the environmental and shipping communities) are thoroughly considered. These guidelines include criteria to allow areas to be designated a PSSA if they fulfil a number of criteria, including: ecological criteria, such as unique or rare ecosystem, diversity of the ecosystem or vulnerability to degradation by natural events or human activities; social, cultural and economic criteria, such as significance of the area for recreation or tourism; and scientific and educational criteria, such as biological research or historical value. The provisions of the United Nations Convention on the Law of the Sea (UNCLOS) are also relevant. 18 When an area is approved as a PSSA, specific measures can be used to control the maritime activities in that area, such as routeing measures, strict application of MARPOL discharge and equipment requirements for ships, such as oil tankers; and installation of Vessel Traffic Services (VTS), see section on SOLAS. below. To date 13 PSSAs have been designated, two of which have been extended, no one of which contain areas beyond national jurisdiction. They do however have the potential to be designated in such areas. An overview of PSSAs can be found at: 3

4 SOLAS Chapter V regulations 19 The International Convention for the Safety of Life at Sea (SOLAS), 1974 in its successive forms is generally regarded as the most important of all international treaties concerning the safety of merchant ships. The main objective of the SOLAS Convention is to specify minimum standards for the construction, equipment and operation of ships, compatible with their safety. Flag States are responsible for ensuring that ships under their flag comply with its requirements, and a number of certificates are prescribed in the Convention as proof that this has been done. 20 Chapter V identifies certain navigation safety services which should be provided by Contracting Governments and sets forth provisions of an operational nature applicable in general to all ships on all voyages. This is in contrast to the Convention as a whole, which only applies to certain classes of ship engaged on international voyages. 21 Key regulations in Chapter V include: Regulation 10 Routeing systems such as Areas to be Avoided; Regulation 11 Reporting systems; include both mandatory and voluntary reporting schemes, and are typically implemented through Ship Reporting Systems (SRS) or Long Range Identification and Tracking (LRIT); and Regulation 12 - Vessel Traffic Services (applicable in Territorial Sea only) 22 There are strict procedures for planning and proposals to IMO and the needs to be well demonstrated. They are established only where: Inadequate survey or insufficient aids to navigation may lead to danger of stranding or collision; Local knowledge is considered essential for safe passage; and Unacceptable damage to the environment could occur from a casualty. International Convention for the Control the management of Ships Ballast Water and Sediments, Linked to the sustainable use of biodiversity in areas beyond national jurisdiction is the Ballast Water Management Convention. Adopted in 2004, to date, 49 States with an aggregate of 34.82% of the world s merchant fleet tonnage have acceded to the Convention. The entry into force condition of 35% is now tantalizingly close and its entry into force of the Convention will be another tool in the box to safe guard marine biodiversity. 24 Tremendous efforts has been made towards creating the right conditions for the implementation of the Convention over the last 12 years. Just to mention a few achievements: the development of numerous guidelines to support the uniform implementation of the Convention; the type approval of 65 ballast water management systems with more in the pipe line; the adoption of IMO s Assembly resolutions with agreed pragmatic implementation schedule of the Convention; and the successful implementation of the two GEF- UNDP-IMO GloBallast projects. Biofouling, ship strikes, ship noise and polar waters 25 Recent activities at IMO s MEPC have included the development of measures that aim to protect migratory species (cetaceans) from ships strikes, reduce noise pollution emanating from ships, addressing biofouling and developing mandatory codes for ships operating in polar regions. 26 Biofouling, which is the accumulation of various aquatic organisms on ships hulls, is considered one of the main vectors for bioinvasions and is recognized as one of the greatest threats to the ecological and the economic well-being of the planet. IMO s Guidelines for the control and management of ships' 4

5 biofouling to minimize the transfer of invasive aquatic species 5 are intended to provide a globally consistent approach to the management of biofouling and represents a decisive step towards reducing the transfer of invasive aquatic species by ships. Ship strikes and underwater noise emanating from ships is by two MEPC Circulars: Guidance document for minimizing the risk of ship strikes with cetaceans 6, and, the Guidelines for the reduction of underwater noise from commercial shipping to address adverse impacts on marine life 7. IMO also adopted the International Code for Ships Operating in Polar Waters (Polar Code 8 ) and related amendments to make it mandatory under both the SOLAS and MARPOL. The Polar Code is expected to enter into force on 1 January This marks an historic milestone in the Organization s work to protect ships and people aboard them as well as the marine environment in the harsh conditions of the waters surrounding the two poles. Dumping of wastes at sea, carbon capture and storage and marine geoengineering 27 IMO also administers the International Convention on the Prevention of Marine Pollution by Dumping of Wasters and other Matter, 1972 (London Convention) and its 1996 Protocol (London Protocol). The Contracting Parties to the London Convention (LC) and London Protocol (LP) have taken a number of steps to develop regulatory tools to mitigate the impacts of increasing concentrations of carbon dioxide in the atmosphere and to ensure that new technologies with the potential to cause unacceptable harm to the marine environment are effectively controlled or prohibited. 28 In 2006, the LP Contracting Parties adopted amendments to Annex 1 of the Protocol to regulate carbon capture and sequestration in sub-sea geological formations (CCS-SSGF) for permanent isolation. This practice would typically apply to large point sources of carbon dioxide emissions, including power plants and cement works, but excludes the use of such carbon dioxide waste streams for enhanced oil recovery. The amendment entered into force in February One consequence of including CCS-SSGF under the LP is that such activities are now subject to the licensing arrangements contained in the instrument. More recently the Contracting Parties to the LP amended article 6 of the Protocol to allow the transboundary movement of carbon dioxide waste streams, thus providing the ability for countries with unstable geological formations to export their carbon dioxide waste streams to other Parties who are able to use this technology. The latter amendment requires sufficient acceptance to enter into force. 29 In 2013, Parties to the London Protocol adopted amendments that will regulate the placement of matter for ocean fertilization and other marine geoengineering activites that have the potential to harm the marine enviornment. Currently under this regulatory regime, ocean fertilization is prohibited, and may be considered for a permit only if it is assessed as constituting legitimate scientific research. The amendments allow for other marine geoengineering activities to be listed in the future if they are found to have the potential to cause harm to the marine environment. The amendments will enter into force 60 days after two thirds of the Contracting Parties have deposited an instrument of acceptance of the amendment with IMO (the London Protocol currently has 47 Parties). For further information visit the London Convention and Protocol web-site: 5 Resolution MEPC.207(62), was adopted in July MEPC.1/Circ.674, was adopted in July MEPC.1/Circ.833, was adopted in April The Polar Code and SOLAS amendments were adopted at MSC 94 in November 2014 and at MEPC 68 in May