3.1
Minor treaty actions are generally technical amendments to existing treaties that do not significantly affect the national interest.
3.2
Minor treaty actions are presented to the Committee with an explanatory statement and are published on the Committee’s website unless a request for confidentiality is received and agreed to by the Committee. The Committee can choose to formally inquire into these treaty actions or accept them without a formal inquiry. Once considered they are incorporated into a report of the Committee at the next opportunity.
3.3
This chapter deals with seven minor treaty actions:
five resolutions adopted by the International Maritime Organization’s (IMO’s) Maritime Safety Committee (MSC)
amendment to Appendix III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora
2022 amendment to Annex A of the Minamata Convention on Mercury.
Resolutions adopted by the International Maritime Organization’s Maritime Safety Committee
3.4
On 5 December 2022, the Minister for Foreign Affairs, Senator the Hon Penny Wong referred five resolutions from the IMO’s MSC to the Committee, which are listed below.
Table 3.1: Five IMO resolutions
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1
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MSC.486(103)
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13 May 2021
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1 July 2022
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1 January 2023
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2
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MSC.456(101)
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13 June 2019
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1 July 2023
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1 January 2024
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3
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MSC.474(102)
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11 November 2020
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1 July 2023
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1 January 2024
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4
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MSC.482(103)
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13 May 2021
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1 July 2023
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1 January 2024
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5
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MSC.491(104)
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8 October 2021
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1 July 2023
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1 January 2024
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Source: Explanatory Statements 13 of 2022–17 of 2022.
International Maritime Organization
3.5
The IMO was established in 1958 as the sole United Nations (UN) agency specialising in maritime affairs. The IMO has six main bodies, including the MSC, that are involved with the adoption or implementation of conventions concerning issues in shipping and related industries. The MSC is the highest technical body of the organisation, and consists of all UN member states.
3.6
According to the IMO, the MSC ‘deals with all matters related to maritime safety and maritime security which fall within the scope of IMO, covering both passenger ships and all kinds of cargo ships’. The MSC also deals with ‘human element’ issues including those associated with standards of training, certification and watchkeeping.
3.7
IMO resolutions have to be accepted by Parties once they are adopted. The IMO uses a method known as ‘tacit acceptance’, which provides that an amendment enters into force at a particular time unless before that date, objections to the amendment are received from a specified number of Parties.
International instruments amended by the resolutions
International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers, 1978
3.8
Resolution 1 amended the International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers, 1978 (STCW Convention).
3.9
The SCTW Convention, which establishes the basic requirements on standards of training, certification and watchkeeping for seafarers, is maintained by the MSC. In 1995, amendments were made to the SCTW Convention which provided greater clarity on aspects of the Convention, revised the division of the technical annex into regulations, and introduced a new STCW Code, to which many technical regulations were transferred.
3.10
The STCW Code includes two parts; Part A of the code is mandatory, and Part B contains recommended guidance which helps Parties implement the STCW Convention. Regulations contained within the Convention are supported by sections within the STCW Code.
International Convention for the Safety of Life at Sea, 1974
3.11
Resolutions 2-4 would amend the International Convention for the Safety of Life at Sea, 1974 (SOLAS Convention).
3.12
The SOLAS Convention concerns the safety of merchant ships, and is described by the IMO as the most important of all international treaties dealing with this issue. The SOLAS Convention specifies the minimum standards for the construction, equipment and operation of ships, compatible with their safety.
Protocol of 1988 Relating to the International Convention on Load Lines, 1966
3.13
Resolution 5 would amend the Protocol of 1988 relating to the International Convention on Load Lines, 1966 (Load Lines Protocol).
3.14
In 1966, the IMO adopted the International Convention on Load Lines, 1966 (Load Lines Convention) which contains provisions relating to the safe freeboard levels of ships. According to the IMO, ‘[t]he main purpose of these measures is to ensure the watertight integrity of ships’ hulls below the freeboard deck’.
3.15
In 1988, the IMO adopted the Load Lines Protocol, which harmonised provisions in the Load Lines Convention dealing with survey and certification requirements with those contained in the SOLAS Convention and the International Convention for the Prevention of Pollution from Ships (MARPOL). Since 1995, the IMO has made a series of amendments to the Load Lines Protocol.
Resolutions
1—MSC.486(103): 2021 amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978
3.16
Resolution 1 amended the STCW Convention and the STCW Code. The first amendment was to Chapter I (general provisions) of the annex to the STCW Convention and added in a definition for ‘high-voltage’. Under the amendment ‘high-voltage’ is defined as: ‘an alternating current (AC) or direct current (DC) voltage in excess of 1,000 volts’.
3.17
The second amendment was to Chapter I (standards regarding general provisions) of the STCW Code and amended the existing definition for ‘operational level’ to include ‘electro-technical officers’. These changes were a consequence of amendments made in 2010.
3.18
According to the Explanatory Statement, Australia’s acceptance of the resolution 1 amendments is consistent with its longstanding advocacy, as an IMO Council Member, for greater transparency, efficiency and innovation to enable the IMO to adapt to rapid changes in the maritime industry. No legislative changes were required to implement the resolution.
3.19
Resolution 1 was deemed accepted on 1 July 2022, before having been referred to the Committee, and came into force on 1 January 2023.
2—MSC.456(101): 2019 amendments to the International Convention for the Safety of Life at Sea, 1974
3.20
Resolution 2 would amend the appendix to the annex to the SOLAS Convention. The proposed amendment would add a footnote ‘delete as appropriate’ to item 8.1 (navigational systems and equipment) in forms C, E and P, which are records of equipment. The amendment would provide greater flexibility in the updating of records of equipment.
3.21
According to the Explanatory Statement, Australia’s acceptance of the proposed amendment is required as a signatory to the SOLAS Convention. No legislative changes would be needed to implement the proposed amendment to the SOLAS Convention.
3.22
Resolution 2 would be deemed accepted on 1 July 2023 and come into force on 1 January 2024.
3—MSC.474(102): 2020 amendments to the International Convention for the Safety of Life at Sea, 1974
3.23
Resolution 3 would make two amendments to Chapter II-1 of the annex to the SOLAS Convention, dealing with towing and mooring equipment, and watertight integrity requirements.
3.24
According to the Explanatory Statement, the first amendment would require appropriate and safe-to-use designs of mooring arrangements, introduce a maintenance and inspection regime, and require ‘proper documentation’. Related guidelines would also be adopted, covering the design of mooring arrangements and the selection of appropriate mooring equipment and fittings for safe mooring; inspection and maintenance of mooring equipment including lines; and revised guidance on shipboard towing and mooring equipment.
3.25
The Explanatory Statement stated that the towing and mooring equipment amendment would allow the SOLAS Convention to keep pace with evolution in ship design. This amendment would ensure ship design complies with the safe conduct of all towing and mooring operations associated with the normal operation of the ship.
3.26
The second amendment dealing with watertight integrity requirements would address inconsistencies in the treatment of doors in bulkheads that are considered watertight in damage stability calculations, and are located above the bulkhead deck. These inconsistencies were an unintended consequence of the probabilistic damage stability standard introduced as part of the 2009 amendments to the SOLAS Convention.
3.27
According to Explanatory Statement, no legislative changes would be needed to implement the proposed amendments. However, Marine Order 12 (MO12), which gives effect to Chapter II-1 of the annex to the SOLAS Convention, would require minor amendments to capture the requirements for ships to have ship specific towing and mooring arrangement plans which must be kept on board for masters’ guidance.
3.28
The Explanatory Statement stated Australia’s acceptance of the proposed amendments is required as a signatory to the SOLAS Convention. That is, it would be consistent with Australia’s advocacy, as an IMO Council Member, for greater transparency, efficiency and innovation to enable the IMO to adapt to changes in the maritime industry.
3.29
Resolution 3 would be deemed accepted on 1 July 2023 and come into force on 1 January 2024.
4—MSC.482(103): 2021 amendments to the International Convention for the Safety of Life at Sea, 1974
3.30
Resolution 4 would amend Chapter II-1 and Chapter III of the annex to the SOLAS Convention to:
require water level detectors on multiple hold cargo ships, other than bulk carriers and tankers
specify a certain type of lifeboat.
3.31
According to the Explanatory Statement, the proposed amendments relating to water level detectors arose out of findings from the investigation into the sinking of the cargo steamship El Faro. This investigation found that flooding in one of the cargo holds, though not the primary cause of the accident, was a contributing factor in the sinking of the ship.
3.32
The Explanatory Statement stated that Australia is required to accept the proposed amendments as a signatory to the SOLAS Convention and noting the findings of the El Faro investigation. No legislative changes would be needed to implement the proposed amendments.
3.33
Resolution 4 would be deemed accepted on 1 July 2023 and come into force on 1 January 2024.
5—MSC.491(104): 2021 amendments to the Protocol of 1988 relating to the International Convention on Load Lines, 1966
3.34
Resolution 5 would make amendments to Annex B of the Load Lines Protocol, which concerns hinged watertight doors. The proposed amendments would harmonise existing watertight door requirements with those in the SOLAS Convention, MARPOL, and the Load Lines Convention.
3.35
According to the Explanatory Statement, Australia’s acceptance of the proposed amendments is required as a signatory to the Load Lines Convention. No legislative changes would be required to implement the resolution.
3.36
Resolution 5 would be deemed accepted on 1 July 2023 and come into force on 1 January 2024.
Conclusion
3.37
As identified above, resolution 1 had already been deemed accepted upon referral to the Committee. Consequently, it was not necessary for the Committee to consider whether binding treaty action be taken.
3.38
The Committee however, agreed resolutions 2-5 be endorsed as minor treaty actions and that binding treaty action be taken.
Amendment to Appendix III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora
Background
3.39
On 5 December 2022, the Minister for Foreign Affairs, Senator the Hon Penny Wong referred to the Committee an amendment to Appendix III of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
CITES
3.40
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. CITES Parties agree not to allow trade in specimens of species included in the appendices except in accordance with provisions of CITES.
Appendix III and amendments
3.41
Appendix III of CITES includes species that CITES Parties have identified as being subject to regulation within its jurisdiction to prevent or restrict exploitation. Listing a species in Appendix III indicates that the listing Party needs the cooperation of other CITES 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.
3.42
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 CITES Parties at any time after the communication of the listing.
Treaty action
3.43
On 15 March 2022, the CITES Secretariat notified Parties (Notification to the Parties 2022/014) that France had requested the inclusion of the Clipperton angelfish (Holacanthus limbaughi) in Appendix III of CITES.
3.44
The amendment entered into force on 13 June 2022 for all CITES Parties that did not enter a reservation to it. Australia did not enter a reservation to the amendment and, as such, is already bound by it.
3.45
Holacanthus limbaughi inhabits the coral reefs around Clipperton Island. Clipperton Island, an isolated coral atoll in the eastern Pacific, falls under the jurisdiction of the Republic of French Polynesia. Holacanthus limbaughi is considered to be ‘near threatened.’
3.46
According to the Explanatory Statement, Holacanthus limbaughi does not occur in Australian waters, nor does Australia trade in specimens of this species. None of the angelfish species could be legally imported to Australia under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
Legislative amendments
3.47
Subsection 303CA(1) of the EPBC Act provides that the Minister must, by legislative instrument, establish a list of CITES species for the purposes of the Act. Under subsection 303CA(3) of the EPBC Act, the list must include all species from time to time included in any of Appendices I, II and III to CITES. The Explanatory Statement advised that the list will be updated to reflect the amendments.
Reasons for Australia to take the treaty action
3.48
The Explanatory Statement argued that the treaty action is consistent with Australia’s strong commitment to CITES and to international cooperation for the protection and conservation of wildlife more generally.
Conclusion
3.49
As identified above, the amendment to Appendix III of CITES had already entered into force upon referral to the Committee. Consequently, it was not necessary for the Committee to consider whether binding treaty action be taken.
2022 amendment to Annex A of the Minamata Convention on Mercury
Background
3.50
On 22 November 2022, the Minister for Foreign Affairs, Senator the Hon Penny Wong referred to the Committee amendments to Annex A of the Minamata Convention on Mercury (Mercury Convention) that were adopted by consensus at the Fourth Conference of the Parties (COP4), held 21-25 March 2022.
Mercury and the Convention
3.51
Mercury is a serious risk to the environment and human health, causing permanent brain and kidney damage in adults and impacting foetal and early childhood development. It accumulates in the environment and can spread widely from its source.
3.52
The objective of the Mercury Convention is to create a global regime that will protect human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds. The Convention entered into force generally on 16 August 2017. Australia has been a Party since March 2022.
Proposed treaty action
3.53
The proposed treaty action concerns amendments to Annex A, Part I (dealing with mercury-added products) and Part II (dealing with dental amalgam) of the Mercury Convention.
3.54
The Mercury Convention contains a deeming provision for amendments to annexes adopted at a COP. This means that amendments enter into force for all Parties 12 months after communication of adoption by the Depositary, except for Parties that provide notification of non-acceptance within that 12-month period.
3.55
The amendments in this case would come into effect on 6 July 2023. Australia is not proposing to lodge a notification of non-acceptance. Accordingly, the amendments would enter into force for Australia on 6 July 2023.
Amendments to Annex A, Part I
3.56
The Mercury Convention obliges Parties to cease the manufacture, import and export of products listed in Annex A, Part I within a set period of time.
3.57
The amendments will result in additional mercury-added products being listed in Annex A, Part I, with Parties being prohibited from manufacturing, importing and exporting such products from 31 December 2025.
3.58
The products to be added to Annex A, Part I are detailed in the table below, along with background detail for each product.
Table 3.2: Mercury-added products newly listed in Annex A, Part I
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Compact fluorescent lamps with an integrated ballast for general lighting purposes that are ≤ 30 watts with a mercury content not exceeding 5 mg per lamp.
Cold cathode and external electrode fluorescent lamps of all lengths for electronic displays not already phased out.
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LED lamps, which do not contain mercury, are cost effective and could replace fluorescent lamps in nearly all applications.
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Strain gauges used in plethysmographs.
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Plethysmographs are medical devices that measure changes in volume, for example, when measuring blood pressure. Mercury strain gauges are now very rarely used.
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Melt pressure transducers, transmitters and sensors except those used in large scale equipment or for high precision measurement, where no suitable mercury-free alternative is available.
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These devices are used in industrial settings to control and measure melt pressure during extrusion and ensure that the products concerned align to specific design requirements. The devices are used in manufacturing food and beverage packaging, piping, medical product manufacturing, and recycling.
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Mercury vacuum pumps.
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Mercury vacuum pumps are rarely used, and mercury-free alternatives exist and are widely used.
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Tyre balances and wheel weights.
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Tyre balancers using mercury allow tyres to rotate without causing vibrations. Non-toxic tin, steel, and composite alternatives have been developed that meet the technical requirements for tyre balancing products. The Explanatory Statement explained that there is one small-medium enterprise in Australia that continues to manufacture mercury tyre balancers. This business was contacted and advised to transition to non-mercury alternatives by the end of 2025.
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Photographic film and paper.
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Mercury has been used to reduce the possibility of unwanted background images forming during image processing. Mercury has been replaced in silver halide photographic papers and films.
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Propellant (ion thrusters) for satellites and spacecraft.
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Ion thrusters are used for spacecraft propulsion and create thrust by accelerating ions using electricity. Although not common, mercury fuelled ion thrusters are still manufactured. The European Union submission to COP4 stated that one manufacturer, Apollo Fusion, intended to produce 500 thrusters by 2023.
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3.59
The Explanatory Statement advised that the practical, legal and financial impact on Australia complying with the new product listings in Annex A, Part I would be negligible.
Exclusions
3.60
The Mercury Convention contains a number of exclusions for products listed in Annex A, Part I:
products essential for civil protection and military use
products for research, calibration of instrumentation, or reference standards
switches and relays, cold cathode fluorescent lamps and external electrode fluorescent lamps for electronic displays, and measuring devices where no feasible mercury-free alternative for replacement is available
products used in traditional or religious practices
vaccines containing thiomersal as preservatives.
3.61
These products are excluded because the products each serve a specific function for which an exemption was considered necessary. For example, the exclusion of products for research, calibration of instrumentation, or reference standards permits the production of mercury blood pressure cuffs as a reference standard for validation studies of mercury-free devices.
Amendments to Annex A, Part II: Dental amalgam
3.62
The amendments made to Annex A, Part II will add more controls over the use of mercury in dental procedures. In addition to existing obligations, Parties will be required to:
exclude or not allow the use of mercury in bulk form by dental practitioners
exclude, not allow or recommend against the use of dental amalgam for the dental treatment of baby teeth of patients under 15 years, and of pregnant and breastfeeding women, except when considered necessary by the dental practitioner based on the needs of the patient.
3.63
According to the Explanatory Statement, the practical, legal and financial impact on Australia complying with the amendments to Annex A, Part II would be negligible. The Dental Board of Australia, which develops or approves standards, codes and guidelines for the dental sector, issued a Position Statement adopting the amendments to Annex A, Part II in November 2022.
Reasons for Australia to take the proposed treaty action
3.64
The Explanatory Statement stated that:
The treaty action is consistent with Australia’s strong commitment to the Convention and to international cooperation on protecting human health and the environment from hazardous chemicals such as mercury.
3.65
The Recycling and Waste Reduction (Mandatory Product Stewardship – Mercury-added Products) Rules 2021 already impose controls on mercury-added products listed in Annex A of the Mercury Convention. The Explanatory Statement advised that legislative amendments would not be required to bring effect to the treaty action.
Conclusion
3.66
The Committee agreed the 2022 amendment to Annex A of the Minamata Convention on Mercury, be endorsed as a minor treaty action and that binding treaty action be taken.
6 March 2023