CO2 at Sea: Climate Obligations for States in International Shipping
Excerpt from my dissertation in international law, University of Amsterdam (2017)
Both the Kyoto Protocol and the 2015 Paris Agreement on climate change exempt international shipping from liability for greenhouse gas emissions [3][4]. This is notable, given that CO₂ emissions from international shipping account for 2.8 percent of global CO₂ emissions [5]. That is nearly one and a half times the amount of CO₂ emitted by the aviation sector [6]. Moreover, CO₂ emissions are expected to continue increasing. Depending on the development of sustainable fuels and energy efficiency in the maritime sector, CO₂ emissions in 2050 could be 50% to 250% higher than in 2014 [7].
Given the impact of shipping on the climate and the limited presence of concrete regulations aimed at reducing CO₂ emissions, it is relevant to investigate to what extent CO₂ emissions from shipping are currently regulated by existing rules of international law, and how sustainability efforts in the shipping industry compare to those in other sectors.
This essay examined the legal and institutional framework concerning state obligations for CO₂ emissions in international shipping, and which relevant approaches and principles from maritime and aviation law may contribute to the future development of that framework. The obligations of states were outlined based on the Climate Convention, the Law of the Sea Convention, and MARPOL. Under Annex VI of MARPOL, states are required under certain conditions to implement energy efficiency measures. These measures are a step in the right direction but are expected to be insufficient for effectively reducing CO₂ emissions from shipping. Moreover, Annex VI does not provide a legal basis for direct CO₂ reduction measures, such as the use of sustainable fuels or carbon capture. Only flag states that are parties to Annex I of the Climate Convention are bound by the obligations imposed by the IMO [2].
Three principles from international maritime and aviation law were analysed: the precautionary principle, the No More Favourable Treatment (NMFT) principle, and the Common But Differentiated Responsibilities (CBDR) principle. Each of these is suitable, more or less, for complementing the legal framework, particularly with respect to enforcement and the distribution of obligations.
The precautionary principle addresses the issue that states often lack sufficient incentives to comply with their obligations and enjoy broad discretionary power in enforcement. The obligation to take timely action to reduce CO₂ provides a stimulus for states to actively enforce rules and limits the discretion of flag states. However, it is essential that clear agreements are made regarding the interpretation and implementation of the obligation to take measures.
To shape these agreements, the NMFT and CBDR principles can be used. The NMFT principle, due to its uniform character, is relatively simple to implement and has the potential to tackle the flag-of-convenience issue. However, it does require further elaboration. This could make it possible to regulate the 78% of transported goods currently falling under flag states that are not parties to Annex I of the Climate Convention, under MARPOL. It is important that regular reporting to the UN is ensured to avoid conflict with the Climate Convention.
Several developing countries object to the NMFT principle on the grounds that it fails to recognise their interest in not bearing the costs of climate damage caused by historically polluting Western economies. The CBDR principle may offer a solution, as it allows for placing the burden of costs on the polluter. Market-based measures (MBMs) can provide polluters with economic incentives to reduce greenhouse gases and are intended to internalize the external costs of CO₂ emissions in the shipping industry. However, significant disagreement exists in the political arena regarding the proper implementation and application of MBMs, as they imply a different distribution of obligations. This division among states presents a major challenge to implementing the CBDR principle.
In conclusion, the precautionary, NMFT, and CBDR principles together form a robust framework for reducing CO₂ emissions at sea, precisely where Paris and Kyoto have fallen short, provided their limitations are acknowledged and addressed appropriately through political will and cooperation.
References
IPCC 2014, figure SPM.2, 5; see also Annex A, Kyotoprotocol.
Protocol van Kyoto bij het Raamverdrag van de Verenigde Naties inzake klimaatverandering, Kyoto 11 december 1997, Trb. 1998, 67 (‘Kyotoprotocol’).
Overeenkomst van Parijs, Parijs 12 december 2015, Trb. 2016, 162 (‘Klimaatakkoord van Parijs’).
Smith et al. 2014, 1.
Smith et al. 2014, tabel 1.