Godofredo Mendes Vianna

KINCAID, MENDES VIANNA ADVOGADOS, Rio De Janeiro

godofredo@kincaid.com.br

Paulo Henrique Reis de Oliveira

KINCAID, MENDES VIANNA ADVOGADOS, Rio De Janeiro

paulo.oliveira@kincaid.com.br

In its 50th anniversary year, MARPOL is chosen as the World Maritime theme for 2023, with 28 September being World Maritime Day. After half a century of existence, MARPOL remains a robust mechanism for the protection of the environment, but it does not stop it from facing geopolitical and technological challenges.

Adopted in 1973, the International Convention for the Prevention of Pollution from Ships, known as MARPOL, would only come into force in 1983, after its 1978 protocol. The Convention was drafted as a response to the largest oil disaster known at the time, the 1967 Torrey Canyon oil spill.

MARPOL arose as an answer to a tragedy. However, as knowledge about the marine environment evolved, experts realised that it was not possible to draw up Conventions as a response to tragedies and that a mechanism was needed to prevent major polluting events since the recovery of the environment in most cases is not always possible.

However, avoiding tragedies, and stimulating a sustainable use of natural resources without hindering development is not such a simple activity, but MARPOL has fulfilled its role and evolved over the years.

Without a doubt, MARPOL is one of the most successful international instruments. Currently, MARPOL has 160 signatories, corresponding to 98.86 per cent of world tonnage. Its annex in force with fewer signatories, the 1997 Protocol on Air Pollution from Ships, accounts for 96.81 per cent of world tonnage and has 104 signatories.

Over the decades, MARPOL has evolved in a systemic and orderly manner, maintaining its unity and characteristics while moving into new scenarios. The success of the annexes also makes the Convention stand out among international law. One of the biggest challenges of the UN system is updating the Conventions.

A case in point is the United Nations Convention on the Law of the Sea, whose 40th anniversary is celebrated in 2022. The Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) failed to adopt an agreement at its 5th session, which was adjourned in August this year until its continuation is scheduled.

All MARPOL amendments and annexes maintain its fundamental principles: safe navigation and sustainable conservation of the marine environment. However, at the same time that MARPOL is principled, it also establishes immediately enforceable norms that directly impact ships and ports.

This statement undoubtedly gives more balance to the Convention, however, there are still challenges. Kitack Lim, IMO Secretary-General, said: ‘We must also tackle other issues including protecting biodiversity, biofouling, the transfer of invasive species, and plastic and noise pollution. Protecting the marine environment requires shared action and I look forward to what the next 50 years will bring.’

When we reflect about the future of the Convention, we must think about measures that are congruent with the other desires of the international community. Maritime commerce has made international relations between individuals a daily occurrence, and Maritime Law has been fundamental for the solidification of custom among the sources of law, but more than ever it is necessary to integrate social and shipping policies.

Although shipping is a fundamental instrument for human subsistence, it is still an often-overlooked topic. It is as if the means of transportation of more than 90 per cent of the volume of goods circulating worldwide were a great unknown.

Despite being politically divided, the ocean is a unit. In other words, what happens in one region affects other regions globally, even on a smaller scale. This imposes a systemic analysis of ocean policies.

In this context, the adoption of sustainable development goals seems to be an effective way to integrate ocean policies with other efforts of the international community. SDG 14 is directly linked when dealing with marine biodiversity, but other SDGs can contribute to the discussion and help foster the legacy of MARPOL for the next 50 years, as proposed by the IMO when it elected this theme.

However, the relationship between shipping and biodiversity is still little explored. In what may be the main document about biodiversity beyond national jurisdiction (BBNJ), maritime navigation does not receive the attention it deserves.

And when we talk about deserved attention, we do not only mean rules that eventually create restrictions for shipping, but also the perception of shipowners as important actors in international society.

The high seas are too extensive and the enforcement by countries is and always will be deficient. In this context, it is necessary to understand shipowners as collaborative agents.

In recent years, several shipping companies have publicised environmental and technological programmes that lead to higher standards than those required by MARPOL or national systems.

It is necessary to remember that the SDGs are a global call, seeking the involvement not only of countries and international organisations but also of individuals and companies.

Therefore, to face the issues posed by the IMO Secretary-General, dialogue is necessary. It is important, especially in regulations focused on environmental preservation, that these are constructed and not determined.

This construction role in the context of the IMO is specially developed by the 66 intergovernmental organisations that have concluded agreements of cooperation and by 85 international non-governmental organisations in consultation with IMO.

Other SDGs confirm this perspective. Climate action, reflected in SDG 13, is already addressed in MARPOL. The Convention as a whole, in seeking ways to prevent oil, hazardous substances, sewage, garbage and air pollution from establishing an effective regime before more general efforts under international environmental law. For the future, the Initial IMO GHG Strategy presents a robust goal to reduce emissions of greenhouse gases from international shipping, enforced by mandatory measures.

The implementation of affordable and clean energy (SDG 7) and the development of infrastructure (SDG 9) depend on public-private partnerships that can be established considering decent work and economic growth (SDG 8) and gender equality (SDG 5). To this end, inequalities must be reduced (SDG 10).

These may seem like complex challenges for an agenda up to 2030 and even more challenging to be the result of an annual world maritime theme. However, a calm sea never made for a good sailor.

The shipping industry has always been at the forefront of challenges and innovations and celebrating 50 years of MARPOL is more than consecrating a legacy – it is encouraging the adoption of new measures that expand this legacy.

It is not possible to decouple shipping and development. The relevance of maritime trade justifies the importance of legal certainty and in the international environment, this can also be achieved through participatory actions.

Sustainable development is everyone's goal, but it is necessary to consider the differences between nations and how this reflects on their shipping industry. The conservation of the environment, while it cannot wait, cannot deepen inequalities or make access to sea freight difficult, under penalty of deepening exclusions and inequalities.

As shipping lawyers, we also have an important role shaping a greener and sustainable future, not only helping drafting such regulations in the different forums and organisations, but also by advising clients on how to comply with and navigate through such new legal framework and policies.