Bunker fuels are a type of heavy fuel oil (“HFO”) used in the aviation and maritime industries to fuel ships and aircraft. The use of HFOs has raised concerns over their environmental impacts and, in particular, their contribution to anthropogenic (human-induced) climate change caused by the greenhouse gases emitted by the burning of HFOs to power shipping. While the ongoing international negotiations being undertaken under the aegis of the United Nations Framework Convention on Climate Change (“UNFCCC”) and the Kyoto Protocol are yet to agree upon a future climate change legal regime, when it comes to HFO emissions the negotiations have been in a complete deadlock for a number of years. Along with aviation emissions, and due to their importance to international trade and associated sensitivity to their being regulated, HFO emissions generally have been left out of the international climate change negotiations. However, while this situation persists for HFOs, specific action is now being taken on aviation emissions, e.g. their introduction into the European Union Emissions Trading Scheme.

The situation in respect of HFOs is also likely to change due to continued pressure to deal with HFO emissions in the climate negotiations. The International Maritime Organization (“IMO”) has developed (through its Marine Environment Protection Committee), various international standards geared toward environmental protection.

Viewed against the backdrop of the stalemate in the climate change negotiations vis-à-vis HFOs, the IMO has successfully established a new regulatory regime for those ship emissions that can adversely affect human health. These emissions are nitrous oxides, sulfur oxides and particulate matter*. The rules, which were established as part of Annex VI to the International Convention for the Prevention of Pollution from Ships (“MARPOL”) and which do not directly address the greenhouse effect of such gases, relate to regulations covering liability and compensation for damage, such as pollution caused by ships. South Africa has not yet ratified Annex VI of MARPOL.  There is some likelihood that a similar approach to the one adopted for aviation emissions, that is subjecting them to emissions trading, will be adopted for HFOs from shipping. However, this issue is still the subject of intense speculation and negotiation.