1 Introduction
A new set of rules govern ships' air emissions and fuel quality requirements in Sulphur Emission Control Areas (SECAs) since 1 January 2015. In the Baltic Sea, English Channel and large parts of the North Sea,(1) The precise limits of the two Northern European SECAs are made through references to the special areas under Annexes I and V respectively. See MARPOL Annex VI, regulation 14(3). it is thereby no longer permitted to use fuel containing more than 0.1 per cent sulphur, unless equivalent methods are in place. In view of their economic implications for ship operators, these requirements were unusually controversial before and after their adoption in 2008. Since their entry into force, focus has shifted to implementation and enforcement. It is widely accepted, by governments(2) At regional level, the European Commission has established a European Sustainable Shipping Forum (ESSF) to enable dialogue between Member States and brings together governments and maritime industry to discuss practical issues that could be encountered during the implementation of the Sulphur Directive. More information about ESSF can be found at: http://ec.europa.eu/transparency/regexpert/index.cfm. and industry representatives(3) See e.g. www.tridentalliance.org alike, that a strict policy for enforcement is necessary to ensure that non-compliance is not encouraged and that operators that comply with the new rules are not placed in an economically disadvantageous position.
Yet, to date very few sanctions have been imposed on ships for failure to comply with the new rules. This is not because compliance has been impeccable, even if it is true that poor implementation of the fuel quality requirements in SECAs does not appear to have been a major concern in the first two years of their operation.(4) See e.g. the various reports of at-sea monitoring as presented at http://compmon.eu/reports. According to the Danish Maritime Authority's action plan on efficient enforcement of regulations on ships' sulphur emissions from 2016, preliminary inspection data indicated a compliance rate of 94% in the SECA, while remote sensing measurements in Danish waters indicated a compliance rate of 2%. More likely explanations for the relative lack of enforcement are that non-compliances are not detected at all, in particular at sea, and that the legal framework governing enforcement is not effective for dealing with this type of pollution, even if detected and confirmed.
This article addresses the latter aspect, i.e. the international legal framework for enforcing the rules, and places a special emphasis on sanctions for non-compliance, which is considered to represent a particularly weak link in the existing enforcement scheme (section 6) and on the availability of other supplementary enforcement measures (section 7). The preceding sections address the regulatory framework for such measures, notably in terms of material standards (section 3) and jurisdictional limitations (section 4).
Questions relating to implementation and enforcement of the sulphur in fuel requirements have recently gained further relevance through the decision by the International Maritime Organization (IMO) in October 2016 to strengthen the sulphur in fuel requirement on a worldwide basis as from 1 January 2020. The issues discussed in the article will therefore be of global relevance when the new requirements come into effect.