The European Union in the International Maritime Organization. Which Role Should the EU Play?


Term Paper (Advanced seminar), 2020

15 Pages, Grade: 19/20


Excerpt

Contents

Introduction

1. The Organizations
1.1 The International Maritime Organization
1.2 The European Union and its shipping policies

2. The European Union within the International Maritime Organization
2.1 Observer status
2.2 Participation through EU’s Member States
2.3 Coordination process

3. The European Commission’s attempts to obtain a full EU membership in the IMO
3.1 The Green Paper for a European Maritime Policy 2006
3.2 The Lisbon Treaty and the Maritime Transport Strategy 2009-2018
3.3 The Barroso-Ashton Strategy 2012
3.4 Present day

4. Legal challenges of a full EU membership in the IMO
4.1 Duty of loyalty

Conclusion

References

Introduction

The European Union made out of its 27 Member States spreads over 70,000 km along fours seas and two oceans. Thus, the sea plays a significant role for its well-being. 41% of the world’s fleet is controlled by European companies. The EU plays a crucial role in the shipping world, and is responsible for ensuring the sustainability of the marine environment in order for its sea-related companies to be competitive and thrive.1 Another entity that shares these responsibilities of “safe, secure and efficient shipping on clean oceans”2 is UN’s International Maritime Organization, established in 1948. Albeit its significant role in international maritime decision making, the EU is not a member of the IMO, as membership is reserved for states only. Nevertheless, EU’s voice is crucial in the IMO, as it is transferred from its Member States onto the IMO discussion table. To illustrate, after the serious oil tanker accidents Erika and Prestige, vessel-source pollution, a crucial part of shipping management, was particularly addressed by the EU and a series of regulations and directives were adopted in pursue of better marine environment protection of European waters. The EU possesses the most advanced and comprehensive regulatory framework for shipping worldwide - the 3rd Maritime Safety Package. However, internationally an opinion has been formed that EU’s approach is rather regional and unilateral and could thus possibly undermine the authority of international law.3

It is clear to the EU that shipping is an activity of international nature that requires intensive communication between involved parties and thus cannot be managed well by a single country. Following, the increasing involvement of the EU in the IMO has to be recognized and investigated. It should be considered which role the EU should play in the IMO, and how this role and expectations thereof have evolved over the years.

To explore this, this paper firstly lays out the shipping policies of the IMO and the EU, before moving to the position that the EU holds within the IMO through its status and participation. Then, a timeline of the Commission’s attempts of obtaining a full membership is explored, explaining international and Member States’ responses. Finally, the paper explicitly addresses the legal challenges of reaching a full EU membership and elaborates on the duty of loyalty. The paper finds out that there are both advantages and disadvantages of an EU membership in the IMO through the Commission, and suggests that instead, a reinforced coordination between the EU and its Member States might be the better and more realistic solution for the EU/IMO relationship.

1. The Organizations

1.1 The International Maritime Organization

For the International Maritime Organization to come into existence, many other conventions had to be sighed prior. International relations have always been in the heart of shipping, and the maritime industry had already launched several attempts for international shipping conventions by the 1850s. In 1863 more than 30 countries agreed on the “Rules of the Road”, which is today known as the Convention on the International Regulations for Preventing Collisions at Sea (COLREG). Next, the Convention of the Safety of Life at Sea (SOLAS) was ratified in 1914. Finally, under the auspices of the UN, a convention was adopted on March 6, 1948 in Geneva for the establishment of the Inter-Governmental Maritime Consultative Organization (IMCO), renamed in 1982 to its current name, the International Maritime Organization. Article 1 defines its purpose as “to provide machinery for co-operation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade”. Moreover, it was set as a goal to be aimed for the adoption of the highest practicable standards for maritime safety and navigation. The IMO is designed on the idea of non-discrimination between shipping states, meaning that member states are not to be impeached in the promotion of their national shipping by other member’s rights. The IMO Convention has been in force since March 17, 1958.4 While it was initially concentrated on navigation and safety matters, its focus expanded to environmental issues such as the impact of shipping on the seas. An important convention that was consequently signed was the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL), modified in 1978. Other ones were the International Convention on the Control of Harmful Anti-Fouling Systems on Ship in 2001 and the International Convention from the Control and Management of Ships’ Ballast Water and Sediments in 2004.5 The IMO is financed by shipping nations.6 Currently there are 174 member nations, including all of EU’s Member States.7 Several Non-Governmental and Inter-Governmental Organizations also participate in decisions taken within the IMO.8

The main bodies of the IMO are the Council and the Assembly. The Assembly, as the governing body of the IMO, gathers every second year to implement the budget and propose new regulations which the Committees and Sub-Committees have previously prepared.9 It consists of the all member states. It can recommend regulations and guidelines to IMO members on issues concerning the prevention and control of pollution from ships or guidelines and regulations concerning maritime safety.10 The Council’s role is to represents the interests of the Assembly in the meantime, and prepare the plan of action and budget. The adoption of a proposal normally requires the consent of a minimum number of member states. Further committees are established for marine safety, marine environment protection, legal issues, technical cooperation, and facilitation.11 The Marine Environmental Protection Committee (MEPC) negotiates new amendments to existing conventions. Within it, states are categorized in flag states, coastal states, and port states. Flag states are where the ships are registered, and thus have unlimited jurisdiction over their ships. The largest European flag states are Greece, Malta, and Cyprus.12

1.2 The European Union and its shipping policies

EU’s shipping policy began in 1993 when the Commission published the Communication on a Common Policy of the Safe Sea. Concerns existed over the lack of IMO standards enforcement. With this Communication, regulations and directives that focused on safety measures and the execution of existing IMO standards were developed. The evolution and expansion of EU shipping policies gained momentum after oil disasters Erika and Prestige happened, in 1999 and 2002, respectively. Tanker Erika broke in half and slipped more than 10,000 tons of oil near France, killing more than 120,000 birds. Tanker Prestige slipped 77,00 tons at the coast of Spain, polluting beaches in Spain, Portugal and France and killing more than 65,000 birds. These accidents launched EU’s position in responding to concerns about the efficiency of IMO environmental and safety standards. So-called Erika Packages I and II were developed as a response, containing new EU legislation on port state controls, implementing double hulls on tankers, improving port reception, traffic monitoring, and the establishment of the European Maritime Safety Agency (EMSA). EMSA monitors the EU law implementation and provides scientific and technical advice. In 2005, a third Erika package was initiated that amended directives on traffic monitoring and port state control, among others.13

Another European actor in the maritime transport sector is the European Community Shipowners’ Association (ECSA) for the promotion of the European shipping industry. In 2019, it published a paper on the Strategic priorities for EU shipping policy 2019-2024.14 In the recent context of Covid-19, the Secretary General of ECSA and the Acting General Secretary of the European Transport Workers’ Federation (ETF) sent a joint letter to the Council, calling for critical regulatory measures for EU’s shipping industry. In the letter they emphasized the importance of the EU shipping industry continuing to perform its functions, and called upon the EU institutions to support the industry during these extraordinary times by keeping supply lines open and enabling cruise ships to dock, among others.15

2. The European Union within the International Maritime Organization

The status of the EU in different international organizations depends on several factors, such as the nature of its competences or a certain agreement clause or treaty that enables Regional Economic Integration Organizations to be a party. The EU hold no legal status within the International Maritime Organization, as one of the most pertinent maritime organizations. Full membership is reserved for EU Member States. However, regardless of its lack of legal status, the EU is still influential in the law of the sea, as the EU Commission holds an observer status since 1974 based on an “Arrangement for Co-operation and Collaboration between the InterGovernmental Maritime Consultative Organization (IMCO) and the Commission of the European Communities on matters of mutual interest to the parties"16 Institutional presence in not sine qua non for the impact of the EU. It has not led to the EU being sincerely welcomed by regional bodies. The EU only exercises the influence it has gained from its competences in the areas which are relevant to the maritime institution, and it turn, its Member States are affected by these competences in general and in the frame of the institution. The question is raised whether the EU requires a more formal presence and representation in the IMO. By gaining one, its influence might not be drastically different than it is today, but its visibility in the international scene might be indeed strengthened.17

2.1 Observer status

Having an observer status implies for the EU that it can participate in meetings of the organization or body, but does not have the right to vote. The presence of an observer might as well be limited to formal meetings, after all previous consultations have been finalized with members and other relevant contracting parties. Since observer interventions may only be possible at the very end of the gathering, the political weight of the EU might be compromised. The involvement of the EU with international organizations when it does not hold formal competences and membership is certainly a complexity for its external relations. A good example is precisely the IMO. The EU, not being a state, is excluded. But at the same time, it has exclusive competences in the area. It has to rely on its Member States to act on its behalf when necessary. The question has been raised whether by assuming powers from the Member States, the EU has actually succeeded them. However, in relation to the case of the MARPOL 73/78 Convention in the framework of IMO, the Court answered this question negatively. Regardless, it did emphasize that Member States shall not abuse the non-membership of the EU in any international organization. In the context of exclusive competences, they do not have the competence of acting on their own, even if the Union is prevented from active participation itself.18

2.2 Participation through EU's Member States

The general scope of the IMO such as shipping, marine pollution and marine security are included in EU’s interests, and since its voice is limited, the duty of loyalty and cooperation of EU Member States is particularly essential. Its external competences are taken over by the Member States, but they cannot assume any obligation that would contradict EU law. Instead, they are urged to spread and represent EU’s interest. By exerting influence in the IMO through the States, the EU does in fact hold a driving force role in IMO’s decision-making and implementation of conventions. There are two reasons for this.19

Firstly, the positions that EU States hold in their active IMO decision making participation have been previously coordinated at the EU level. To ensure that it is spoken with one voice, the Commission composes a coordination paper in which the States’ positions are solidified prior to the meeting. Additionally, the representatives of the Member States meet in Brussels to find joint positions several weeks before each relevant IMO meeting. Secondly, the EU itself has adopted maritime legislation that is supportive to IMO rules. While breaching IMO Conventions would hardly result in legal consequences, if EU law has made these obligations binding, the noncompliance thereof would surely lead to penalties. There exist over 40 regulations and directives whose implementation has become a part of the national legislation of Member States, in pursuance of the effective execution of IMO’s regulatory framework. This indirect influence of the EU is a good example of European stimulus for the directive for international shipping agreements. For instance, EU Regulation 2015/757 on CO2 emissions comprises a first step for maritime emissions reduction. It not only contributes to the debate on cutting maritime emission, it also demonstrates the existence of mutualism and influence between the EU and the IMO. When the Council calls for an acceleration of IMO efforts for the reduction on CO2 emissions from shipping and the implementation of a strategy for their reduction, and when in turn, the agreement is reached in the IMO, the regulation is amended in alignment with both systems.20

2.3 Coordination process

EU’s position in the IMO is divided into three groups, according to the Council’s 2005 “Procedural framework for the adoption of Community or common positions for IMO related issues and rules governing their expression in the IMO”. Firstly, there exists the EU Community position, responsible for matters of EU exclusive competence. Secondly, there is the coordinated position, for matters of exclusive competence of the Member States. And lastly, the common position is defined for affairs of shared competences between the Member States and the EU. The preparation of EU’s position may be done by technical discussions in the Committee on Maritime Security (MARSEC) or the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS). The Commission then submits the Staff Working Document and the proposed position to the Council. After a qualified majority vote, the adopted position is sent to the IMO or voiced to the IMO by the Member State that is holding the Presidency on behalf of the EU. Should the decisions adopted by the coordination process not be respected by all Member States, even without the process being legally binding, the EU could take them to Court, as will be illustrated later.21

[...]


1 Nengye, Lui & Maes, Frank. The European Union and the International Maritime Organization: EU’s External Influence on the Prevention of Vessel-Source Pollution. Journal of Maritime Law and Commerce, Vol. 41, No. 4, pp. 581-894. 2010. P. 2

2 International Maritime Organization slogan

3 Nengye, Lui & Maes, Frank. The European Union and the International Maritime Organization: EU’s External Influence on the Prevention of Vessel-Source Pollution. Journal of Maritime Law and Commerce. 2010. P. 3

4 Schaar, Dorothee. The effect of EC membership of the IMO in ‘internationalising’ EU maritime transport law and policy. Master thesis. University of Oslo, Institute of Maritime Law. 2007. P. 4

5 Van Leewen, Judith & Kern, Kristine. The External Dimension of European Union Marine Governance: Institutional Interplay between the EU and the International Maritime Organization. Global Environmental Politics 13:1. February 2013. P. 74

6 Schaar, Dorothee. The effect of EC membership of the IMO in ‘internationalising’ EU maritime transport law and policy. Master thesis. University of Oslo, Institute of Maritime Law. 2007. P. 4

7 International Maritime Organization official website. About IMO, membership, Member States.

8 Schaar, Dorothee. The effect of EC membership of the IMO in ‘internationalising’ EU maritime transport law and policy. Master thesis. University of Oslo, Institute of Maritime Law. 2007. P. 4-5

9 Ibid.

10 European Commission’s Proposal for a Council Decision. Brussels, 6.11.2019. COM (2019) 575 final. P. 2

11 Schaar, Dorothee. The effect of EC membership of the IMO in ‘internationalising’ EU maritime transport law and policy. Master thesis. University of Oslo, Institute of Maritime Law. 2007. P. 4-5

12 Van Leewen, Judith & Kern, Kristine. The External Dimension of European Union Marine Governance: Institutional Interplay between the EU and the International Maritime Organization. Global Environmental Politics 13:1. February 2013. P. 74-75

13 Ibid. P. 75-76

14 European Community Shipowners’ Associations official website. (15.05.2020)

15 Latarche, Malcolm. ECSA and ETF warn of collapse of European maritime trade. ShipInsight. March 19, 2020.

16 European Commission’s Proposal for a Council Decision. Brussels, 6.11.2019. COM (2019) 575 final. P. 2

17 Wessel, Edward & Odermatt, Jed. Research Handbook on the European Union and International Organizations. 2019. P. 464

18 Von Vooren, Bart & Wessel, Ramses. EU External Relations Law: Text, Cases and Materials. Cambridge University Press, 2014. P. 255-256

19 Wessel, Edward & Odermatt, Jed. Research Handbook on the European Union and International Organizations. Edward Elgar Publishing, 2019. P. 476-478

20 Ibid.

21 Nengye, Lui & Maes, Frank. The European Union and the International Maritime Organization: EU’s External Influence on the Prevention of Vessel-Source Pollution. Journal of Maritime Law and Commerce. 2010. P. 8-9

Excerpt out of 15 pages

Details

Title
The European Union in the International Maritime Organization. Which Role Should the EU Play?
College
Sciences Po., Paris
Course
Law of external relations of the EU
Grade
19/20
Author
Year
2020
Pages
15
Catalog Number
V1000030
ISBN (eBook)
9783346386588
ISBN (Book)
9783346386595
Language
English
Tags
european union, european commission, competencies, international maritime organization, EU membership, green paper, barroso ashton strategy
Quote paper
Sophia Milusheva (Author), 2020, The European Union in the International Maritime Organization. Which Role Should the EU Play?, Munich, GRIN Verlag, https://www.grin.com/document/1000030

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