by Christian Bueger, Jan Stockbruegger & Vonintsoa Rafaly
The European Union is a major player in ensuring the safety of marine transport. Given the importance of its members as port states and flag states and the size of its shipping companires – which control nearly 30 percent of the world merchant fleet (in gross tonnage) – the EU has substantially regulatory power over global shipping.
Through its coordinated policies on maritime transport and its dedicated agency, the European Maritime Safety Agency, the EU has important instruments to shape how shipping is carried out and monitored. In the past, it has used its market power to increase standards within the International Maritime Organization – the UN’s shipping regulator – and to enforce these standards in its ports – as well as to reduce shipping’s greenhouse gas and other emissions.
On June 1, 2023, the European Commission presented its review of EU marine transport policies and proposed five new directives. The new policies are now discussed in the European Council and European Parliament. What’s in the new directives? Why are they needed? Do they go far enough?
Ocean governance challenges: Why revisions are needed
Since the EU last reviewed its maritime transport policies, the situation has changed substantially. This is why the new directives are needed. Indeed, governance challeges at sea have increased.
Ocean health continues to be in decline, yet we are increasingly becoming aware how important the oceans are for the planet. Coastal areas and the oceans overall are a key carbon sink. Restoring ocean heath is vital to address climate change.
Yet, maritime activity continues to intensify threats to ocean health. Among them is shipping. While maritime transport continues to be the most efficient form of transport, shipping is a dangerous and often dirty business. ‘Black sheeps’ continue to operate in the transport sector, underreporting incidents, or even engaging in illicit activities. An expanding fleet of dark vessels sails the oceans to avoid sanctions or engage in smuggling.
Some activities that cause harm to the marine environment are still un- or underregulated, such as chemical pollution, container loss, or noise pollution. Maritime spaces are moreover becoming increasingly congested, since shipping is not the only activity that is accelerating. More and more infrastructures, such as wind farms and data cables occupy oceans space. This congestion increases the risk for multi-use conflicts between marine users, often leading to accidents.
Security threats have transformed as well. While illicit activities such as piracy, smuggling or illegal fishing continue to threaten ocean users, new threats have emerged from grey zone warfare, as exemplified by the 2022 attacks on the Nord Stream pipelines in the Baltic Sea.
The EU’s 2023 marine safety package
The key objective of the package developed by the Commission’s Directorate for Transport (DG MOVE) is to bring EU shipping legislation in line with international regulations and EU law in other sectors, but also to respond to the changing ocean challenges.
The five directives are a comprehensive package and focus on flag state legislation, port state control, ship-source pollution, maritime incident investigation, and providing a new mandate for the European Maritime Safety Agency (EMSA). Responding and reflecting to new regulatory needs of the past ten years, the directives aim at issues such as harmonizing EU member state laws, tightening inspections of vessels, penalties for non-compliance, and improved information sharing and digitalization.
While appropriately capturing key issues of the past, it is questionable whether the directives are future proof. Most problematically, the directives do not address a range of emerging concerns which call for urgent regulatory solutions.
Stopping containers from polluting the sea
One concern that is not reflected in the directive is how to prevent container loss. According to a review by Allianz, in 2021 and 2022 more than 3,100 containers were lost at sea on average annually.
Container loss is often caused by extreme weather events, but human errors such as mis-declared cargo weights also play a role. Large container vessels with many containers stacked on top of each other are particularly vulnerable. Containers at sea can cause accidents with other vessels. They are a also a main marine source of plastic pollution and can lead to other forms of environmental damage.
The directives fail to propose solutions, such as systematic and obligatory reporting procedures, and the obligatory use of preventive technology.
Preventing ship strikes and wildlife accidents
Given the growing size of vessels and the acceleration of shipping activities, accidents with marine mammals have become more common. While estimates differ, it is assumed that shipping globally kills up to 20,000 whales each year.
Animals struck by ships are often badly injured and die. These accidents often go unnoted by ships in transit. Yet, collisions with small and medium sized boats can also cause navigational hazards, damage vessels and even lead to fatal injuries when the vessels are operating at high speeds. In Europe a major concern are collisions in dense maritime areas such as the Straits of Gibraltar and the Mediterranean.
The directives fail to address the problem. EMSA and EU member state maritime authorities should raise awareness among shippers about this problem, gather data to better study and tackle it, and at the minimum review how detection technologies, navigational aids, and revised routing can address the issue.
Reducing Noise Pollution
Growing ship traffic has also led to extensive underwater noise pollution. Marine ecosystems are highly dependent on underwater sound, since mammals and fish communicate, locate mates and prey, avoid predators, navigate, and even defend their territories this way.
Noise pollution can have a variety of effects on marine animals including temporary or permanent hearing loss, behavioral and physiological changes. For example, some marine animals adjust their own activities to avoid the noisy times of day or even increase their anti-predatory behavior’s.
Although scientific evidence on the impact of noise pollution is increasingly available and conservation NGOs raise awareness for it, the EU directives fail to recognize the problem.
At the minimum the EU should work towards a transition plan to reduce noise emissions from shipping, including investing in research and development for ship design and propulsion technology, and conducting assessments.
Addressing sanctions busting and ‘dark’ shipping activities
Maritime sanctions and shadow shipping activities are another concern that the package fails to address.
Excluded from legitimate shipping markets, countries such as Russia, Iran, and Venezuela rely on so-called dark or shadow tankers for their oil exports. The fleet currently make up to 10 percent of the global oil trading fleet.
Lloyd’s List defines tankers in this fleet as being “aged 15 years or over, anonymously owned, solely deployed in sanctioned oil trades, and engaged in one or more (…) deceptive shipping practices” such as flag hopping, turning off vessel identification system, and conducting ship-to-ship oil transfers.
Shadow shipping activities are associated with two problems. First, dark tankers often try to evade the EU’s sanctions on Russian oil shipments. In February 2023 the Maersk Magellan unknowingly loaded a cargo of Russian oil from the Cameroonian-flagged Nobel, an aging tanker in Russia’s dark fleet.
Second, many dark tankers often don’t meet international safety and insurance standards, which increases the risk of accidents and oil spills significantly. A Reuters investigation found at least eight groundings, collisions or near misses involving tankers carrying sanctioned crude or oil products, including events off Malaysia, Cuba and Spain.
To address this problem, the EU should establish information sharing systems to better monitor dark tankers and consider limiting their activities in Europe’s Exclusive Economic Zone, going as far as to ban dangerous ship-to-to-ship oil transfers.
EMSA is key in providing maritime security
EMSA the key agency for the EU’s marine transport sector. But it is also a major actor monitoring the European seas and global marine enviornment for security purposes. EMSA expertise and knowledge is needed for cross-sector ocean policies in the EU and at the global level. Yet, the proposed new EMSA mandate does not do justice to this role.
In the directive, Article 7 (maritime security) and 8 (surveillance) fail to explicitly refer to monitoring security relevant incidents, such as monitoring suspicious behavior in and around maritime infrastructures, smuggling, oil trans-shipments, and sanctions violations. No other EU agency is equipped to deliver this at low costs and enhance information sharing and maritime domain awareness.
The directive also fails to consider the important role that EMSA might play in the international capacity building efforts outlined in the forthcoming EU Maritime Security Strategy. EMSA expertise should have a vital role in EEAS capacity building and diplomatic activities, beyond crisis responses and beyond the immediate European neighborhood, and for instance support partners in the Indo-Pacific.
Harmonize interpretation of UNCLOS across the EU
While the new directives provide a new impetus for harmonizing ocean governance in respect to shipping, EU members states continue to have different viewpoints and interpretations of the United Nations Convention on the Law of the Sea (UNCLOS). In particular interpretations concerning the rights and obligations in Exclusive Economic Zones and how freedom of navigation can be restricted differ across national jurisdictions.
The different EU bodies must work towards a harmonized and consistent understanding of UNCLOS among member states and EU institutions. A permanent EU advisory body comprised of national and Commission legal experts is needed to harminize national viewpoints and to develop common interpetations and perspectives of the law of the sea.