Amendments to Appendices I and III of CITES; Resolutions passed by the IMO Marine Environment Protection Committee
3.1
Minor treaty actions are generally technical amendments to existing treaties which do not impact significantly on the national interest. They are presented to the Committee with a short explanatory statement and are listed on the Committee’s website.
3.2
The Committee can choose to formally inquire into these treaty actions, or accept them without a formal inquiry and report. Once considered they are incorporated into a formal report of the Committee at the next opportunity.
3.3
The Committee was asked to consider:
amendments to Appendices I and III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
eight Resolutions passed by the International Maritime Organization’s (IMO) Marine Environment Protection Committee (MEPC).
Amendments to Appendices I and III of CITES
Background
3.4
CITES is a multilateral treaty comprising mechanisms for regulating international trade in endangered species. It contains three appendices listing the endangered species of animals or plants, whether dead or alive, and products derived from these animals or plants to which the regulations apply. Parties agree not to allow trade in specimens of species included in the appendices except in accordance with provisions of the Convention.
Appendix I and amendments
3.5
Appendix I of CITES includes species threatened with extinction which are or may be affected by trade. Trade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorised in exceptional circumstances.
3.6
Any Party may propose an amendment to Appendix I (or Appendix II) for consideration by Parties, either at a meeting of the Conference of the Parties or between meetings. Amendments enter into force 90 days after the required procedures for consideration by Parties have been followed, except for those Parties that make a reservation.
Appendix III and amendments
3.7
Appendix III of CITES includes species that a Party identifies as being subject to regulation within its jurisdiction to prevent or restrict exploitation, and needing the cooperation of other Parties to control trade in that species. Exports or imports of specimens of species included in Appendix III can only take place with an export permit.
3.8
Unlike amendments to Appendices I and II, amendments to Appendix III of CITES can be made unilaterally and do not require agreement by a Conference of the Parties. They automatically enter into force 90 days after communication of the listing to the Parties by the CITES Secretariat. However, reservations can be made by Parties at any time after the communication of the listing.
The minor treaty action
3.9
The proposed minor treaty action would amend Appendices I and III of CITES by adding:
1 endemic Australian reptile species (the pygmy bluetongue skink, Tiliqua adelaidensis) to Appendix I of CITES
127 endemic Australian reptile species to Appendix III of CITES.
3.10
According to the Explanatory Statement, Australian native reptiles are increasingly being smuggled out of Australia and being found in the international pet trade. Australia is obliged under CITES to regulate international trade in species listed in the appendices of CITES.
3.11
The listing of the pygmy bluetongue skink in Appendix I would prohibit international commercial trade in live specimens and products made from or containing the species. Listing of the other reptile species in Appendix III would provide for the cooperation and assistance of other Parties to control unsustainable or illegal exploitation in international trade.
Timing of the minor treaty action
3.12
The Department of Agriculture, Water and the Environment (the Department) proposes to include the pygmy bluetongue skink in Appendix I of CITES at the 19th meeting of the Conference of Parties, scheduled for November 2022. If adopted, this listing would take effect 90 days after the end of the meeting.
3.13
The Department intends to communicate the list of 127 reptile species for inclusion on Appendix III to the CITES Secretariat once Australia’s treaty making process is complete.
Reasons to take the minor treaty action
3.14
The Explanatory Statement provided several reasons for Australia to take the proposed minor treaty action:
The treaty action is consistent with Australia's strong commitment to the Convention and to international cooperation for the protection and conservation of wildlife more generally.
Australian native reptiles are highly sought after in the international exotic pet trade, creating significant financial motivation for criminals to illegally export Australian wildlife. Organised criminals are attracted to the Australian illegal wildlife trade by large profits and lower penalties compared to smuggling illicit substances.
Advice received by overseas wildlife enforcement counterparts indicates they are often not empowered to take enforcement action in relation to the overseas import, export, trade, or possession of non-CITES-listed Australian native reptiles. CITES listings for native reptiles would enable overseas authorities to conduct enforcement action and support Australia’s efforts to disrupt illegal wildlife trade.
Impact of the minor treaty action
3.15
No legislative changes are required to implement the proposed minor treaty action. Section 303CA of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides for the necessary changes to be made by the Minister through legislative instrument.
3.16
The Explanatory Statement stated the proposed minor treaty action would have minor regulatory impacts because live native reptiles cannot be exported for commercial purposes, including for the pet industry. Any export currently requires an export permit and for live specimens, these are only available under very limited non-commercial export circumstances. Commercial products produced from reptiles must be derived from a program approved under the EPBC Act. There are currently no known businesses trading in products made or derived from the reptiles proposed for listing.
3.17
While listing of the reptiles on the CITES appendices would impose no additional regulatory burden domestically, it would impose requirements on the international movement of the species once outside Australia.
Conclusion
3.18
The Committee supports this minor treaty action and agreed that binding treaty action be taken.
Resolutions passed by the IMO Marine Environment Protection Committee
3.19
The Committee was referred eight IMO MEPC Resolutions, which are listed in Table 3.1 below.
Table 3.1: IMO MEPC Resolutions referred to the Committee
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1
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MEPC.314(74) Electronic Records
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17 May 2019
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1 April 2020
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1 October 2020
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2
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MEPC.315(74) Residues
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17 May 2019
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1 July 2020
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1 January 2021
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3
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MEPC.316(74) Electronic Records and EEDI Regulations
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17 May 2019
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1 April 2020
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1 October 2020
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4
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MEPC.324(75) Sulphur Sampling and EEDI
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20 November 2020
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1 October 2021
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1 April 2022
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5
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MEPC.328(76) Revised Annex VI
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17 June 2021
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1 May 2022
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1 November 2022
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6
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MEPC.329(76) Arctic Heavy Fuel Oil
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17 June 2021
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1 May 2022
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1 November 2022
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7
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MEPC.330(76) UNSP Barges
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17 June 2021
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1 May 2022
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1 November 2022
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8
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MEPC.331(76) AFS
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17 June 2021
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1 July 2022
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1 January 2023
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Source: Explanatory Statements 2–9 of 2022
Background on IMO Resolutions
3.20
The IMO was established in 1958 as the sole United Nations agency specialising in maritime affairs. The IMO has six main bodies, including the MEPC, that are concerned with the adoption or implementation of conventions that deal with issues in shipping and related industries. The MEPC consists of all United Nations member states and is empowered to consider any matter within the scope of the IMO relating to the prevention and control of pollution from ships.
3.21
The first seven Resolutions provide for amendments to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocols of 1978 and 1997 relating thereto (MARPOL).
3.22
MARPOL is given effect domestically in Australia through the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and the Navigation Act 2012.
3.23
The eighth Resolution would amend the International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001 (AFS Convention). The Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 implements domestically Australia’s obligations under the AFS Convention.
3.24
IMO Resolutions have to be accepted by Parties once they are adopted. The IMO uses a method referred to as ‘tacit acceptance’, which provides that an amendment shall enter into force at a particular time unless before that date, objections to the amendment are received from a specified number of Parties (see discussion below under ‘IMO arrangements and implications for Australia’s treaty-making process’).
IMO Resolutions already deemed accepted or entered into force
3.25
Resolutions 1-4 listed above in Table 3.1 have already been deemed accepted and the first three have already entered into force. Consequently, it was not necessary for the Committee to consider whether binding treaty action be taken for Resolutions 1-4. They are described briefly below.
1—MEPC.314(74) Electronic Records
3.26
Ships are already required by MARPOL to keep accurate records of the movement and discharge of substances that are environmentally hazardous. The Resolution amends MARPOL Annexes I, II and V concerning electronic record books. It allows ships to keep electronic oil, cargo and garbage record books instead of hard copy record books.
2—MEPC.315(74) Residues
3.27
The Resolution amends MARPOL Annex II concerning cargo residues and tank washings of persistent floating products. Specifically, it introduces controls for the discharge of ‘persistent floaters’ into the North West European waters, Baltic Sea, Western European waters and Norwegian Sea.
3—MEPC.316(74) Electronic Records and EEDI Regulations
3.28
The Resolution amends MARPOL Annex VI concerning electronic record books and Energy Efficiency Design Index (EEDI) regulations for ice-strengthened ships. It allows ships to keep electronic record books for ozone-depleting substances, and nitrogen oxide and sulphur oxide particulate matter emitted in designated Emission Control Areas, instead of hard copy record books.
4—MEPC.324(75) Sulphur Sampling and EEDI
3.29
Existing MEPC Resolutions establish limits on the sulphur content of fuel oil used and carried by a ship. The Resolution will amend MARPOL Annex VI concerning procedures for sampling and verification of the sulphur content of fuel oil and the EEDI. It provides a compliance framework that specifies the fuel oil samples to be taken, and updates timelines for energy efficiency improvement targets for the design of some new ship types.
Proposed IMO Resolutions
3.30
Resolutions 5–8 have not yet been deemed accepted, nor have they entered into force. It was open to the Committee to consider whether binding treaty action should be taken for Resolutions 5–8.
5—MEPC.328(76) Revised Annex VI
3.31
The Resolution would amend MARPOL Annex VI concerning regulations for the prevention of air pollution from ships. It proposes mandatory technical and operational measures to improve the energy efficiency and reduce the carbon intensity of international shipping, including an Energy Efficiency Existing Ship Index (EEXI) and a Carbon Intensity Indicator (CII), and specifies the ship types to which these requirements would be applied.
3.32
The EEXI would apply to new ship builds and existing ships that are 400 gross tonnage and above. Ships to which the EEXI applies must be compliant with an emission target at their next survey and, if not, the ship must be made compliant.
3.33
The CII would apply to ships of 5,000 gross tonnage and above. Ships to which the CII applies would need to establish their annual CII and carbon intensity rating (ranging from the highest rating of A to the lowest rating of E). Parties are encouraged to provide incentives to ships rated as A or B. Ships rated D (minor inferior performance level) for three consecutive years, or E (inferior performance level) for one year, would be required to submit a corrective action plan.
3.34
The Resolution would also exempt unmanned non-self-propelled (UNSP) barges from certain survey and certification requirements.
3.35
The Explanatory Statement stated:
The amendments to introduce the new EEXI and CII measures are not expected to have significant financial or legal impacts for Australian maritime industry stakeholders. Fewer than twenty Australian-flagged ships are undertaking regular commercial international voyages, excluding occasional voyages for dry-docking. The requirements will be implemented for all foreign-flagged ships operating within Australia's maritime boundaries to ensure that international ships in Australian waters are operating consistent with international standards.
The amendments to exempt UNSP barges from certain survey and certification requirements reflect the reduced potential for air pollution from UNSP barges. As the amendments reduce regulatory requirements, they are expected to have negligible practical, legal and financial impacts for Australian maritime industry stakeholders.
Reasons for taking the proposed treaty action
3.36
The Explanatory Statement stated the Resolution is consistent with Australia’s longstanding concern for the marine environment while minimising the regulatory burden on industry, and it supports the effective and consistent implementation of international regulations.
6—MEPC.329(76) Arctic Heavy Fuel Oil
3.37
The Resolution would amend MARPOL Annex I prohibiting the use and carriage for use as fuel of heavy fuel oil (HFO) by ships in Arctic waters.
3.38
The Explanatory Statement noted that the ban ‘aims to reduce the environmental impact in the event of an oil spill from a ship in Arctic waters and the impact of ship air exhaust pollutants on sensitive Arctic environments’. It stated:
The amendments are expected to have negligible practical, legal and financial impacts for Australian maritime industry stakeholders. Fewer than twenty Australian-flagged ships undertake regular commercial international voyages, excluding occasional voyages for dry-docking, and they are unlikely to operate in Arctic waters.
Reasons for taking the proposed treaty action
3.39
The Explanatory Statement stated the Resolution is consistent with Australia’s longstanding concern for the marine environment while minimising the regulatory burden on industry, and it supports the effective and consistent implementation of international regulations.
7—MEPC.330(76) Unmanned Non-self-propelled Barges
3.40
The Resolution would amend MARPOL Annex I and IV to permit the exemption of UNSP barges from certain survey and certification requirements of these annexes.
3.41
The Explanatory Statement noted:
The amendments reflect the reduced potential for oil or sewage discharges from UNSP barges and reduce the survey and certification requirements accordingly. As they reduce regulatory requirements, they are expected to have negligible practical, legal and financial impacts for Australian maritime industry stakeholders.
Reasons for taking the proposed treaty action
3.42
The Explanatory Statement stated the Resolution is consistent with Australia’s longstanding concern for the marine environment while minimising the regulatory burden on industry, and it supports the effective and consistent implementation of international regulations. In particular, it recognises the reduced risk to the environment posed by UNSP barges.
8—MEPC.331(76) Anti-fouling System
3.43
The Resolution would amend Annexes 1 and 4 of the AFS Convention to establish controls on the use of cybutryne in anti-fouling systems on ships. Cybutryne can leach into the ocean and harm aquatic life.
3.44
The Explanatory Statement noted:
The amendments are expected to have negligible practical, legal and financial impacts for Australian maritime industry stakeholders … cybutryne has never been used in products or registered as an antifouling agent in Australia.
Reasons for taking the proposed treaty action
3.45
According to the Explanatory Statement, the Resolution is consistent with Australia’s support for the marine environment while minimising regulatory burden on industry.
Amendments to legislation and regulation required for proposed IMO Resolutions
3.46
The following table summarises the legislative and regulatory amendments foreshadowed in the relevant explanatory statements to implement the proposed IMO Resolutions.
Table 3.2: Legislative and regulatory amendments
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MEPC.328(76)
Revised Annex VI
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Protection of the Sea (Prevention of Pollution from Ships) Act 1983
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Australian Government Solicitor advises no amendments required
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Navigation Act 2012
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Not expected
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Marine Order 97 (Marine pollution prevention—air pollution) 2013
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Amendments to implement EEXI and CII measures, and enable AMSA (Australian Maritime Safety Authority) to issue and accept five-year Exemption Certificates for certain survey and certification requirements for UNSP barges
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MEPC.329(76)
Arctic HFO
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Protection of the Sea (Prevention of Pollution from Ships) Act 1983
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Minor amendments required
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Marine Order 91 (Marine pollution prevention—oil) 2014
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No
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MEPC.330(76)
UNSP Barges
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Navigation Act 2012
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Not expected
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Marine Order 91 (Marine pollution prevention – oil) 2014
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Amendments to allow AMSA to issue and accept five-year Exemption Certificates from certain survey and certification requirements for UNSP barges
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Marine Order 96 (Marine pollution prevention – sewage) 2018
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MEPC.331(76)
Anti-fouling System
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Protection of the Sea (Harmful Anti-fouling Systems) Act 2006
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Minor amendments to extend the definition of Harmful Anti-fouling System to include cybutryne, and to update relevant compliance dates and exemptions
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Marine Order 98 (Marine pollution – anti-fouling systems) 2013
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Minor amendments to revise the International Anti-fouling System Certificate form
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Source: Explanatory Statements 6–9 of 2022
IMO arrangements and implications for Australia’s treaty-making process
3.47
While it was open to the Committee to consider whether binding treaty action should be taken for Resolutions 5–8, the Committee recognised the method by which IMO Resolutions take effect and the practical application of the Resolutions may mean that that any decision by Australia to raise objections could have limited impact.
3.48
By way of example, proposed Resolution 5 (MEPC.328(76) Revised Annex VI ) would be tacitly accepted unless prior to its deemed acceptance date ‘not less than one third of the Parties, or Parties of which the combined merchant fleets constitute not less than 50 per cent of the gross tonnage of the world's merchant fleet, have communicated to the IMO their objection to the proposed amendments’.
3.49
The Explanatory Statement for Resolution 5 noted that ‘[s]ince the amendments were agreed at MEPC by consensus, it is extremely unlikely that sufficient objections would be made to prevent their entry into force’.
3.50
Australia could nevertheless object to Resolution 5 but the amendments to introduce the new CII and EEXI measures, for example, would enter into force for other Parties regardless. There would not be a requirement for Australian-registered ships, or foreign ships within Australia's jurisdiction, to comply with those measures. However, Australian-registered ships would still be required to comply with the measures while operating in waters under the jurisdiction of a Party that has accepted the amendments.
Conclusion
3.51
The Committee endorsed Resolutions 5–8 as minor treaty actions and agreed that binding treaty action be taken.
Mr Dave Sharma MP
Chair
28 March 2022