Bay of Bengal Large Marine Ecosystem (BOBLME) Theme report
GCP/RAS/179/WBG. FAO-BOBLME Programme
REVIEW OF LEGAL AND ENFORCEMENT
MECHANISMS IN THE BOBLME REGION
William Edeson
6 Knibbs St Turner ACT 2612 Australia
email: bill.edeson@netspeed.com.au
tel +61 2 61610845
Final Draft: to be revised in the light of comments and further information received at the
forthcoming workshop.
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SUSTAINABLE MANAGEMENT OF
THE BAY OF BENGAL LARGE MARINE ECOSYSTEM (BOBLME)
GCP/RAS/179/WBG
TERMS of REFERENCE for BOBLME THEME REVIEW
REVIEW OF LEGAL AND ENFORCEMENT MECHANISMS IN THE
BOBLME REGION
Background
A proposal has been approved under the Project Development Fund of the Global
Environment Facility that will facilitate the preparation of a Strategic Action
Programme (SAP) for the Bay of Bengal Large Marine Ecosystem (BOBLME). The
participating countries are Bangladesh, India, Indonesia, Malaysia, Maldives,
Myanmar, Sri Lanka and Thailand. Preparation of the SAP will require information on
the manner in which the countries' legal and institutional frameworks allow
implementation and enforcement of the proposals for management of the priority
shared and transboundary issues (defined below) related to the sustainable management
of the BOBLME, and options for their improvement.
Terms of reference
Under the overall responsibility of the Director, Field Operations Division (TCO), and
the general supervision of the Coordinator, Operations Branch for Asia and the Pacific
(RAPR), and with the guidance of the designated Technical and Operations Officers,
the BOBLME Consultant will be responsible to the Regional Coordinator,
FAO/BOBLME, and will work in close collaboration with the international and
national members of the Programme team in carrying out the following tasks:
1.
The Consultant will carry out a review of the relevant aspects of the legal and
institutional frameworks in the BOBLME region which will cover the following topics:
· Description of the current status of the countries' legal and institutional
frameworks, including the traditional ownership and customary use systems,
related to the sustainable management of the BOBLME, and in particular with
regard to the management and enforcement of legislation on the following three
priority topics: exploitation of marine living resources, especially fisheries,
health of critical habitats, especially mangroves and coral reefs, and land-based
sources of pollution to the coastal and marine environment.
· Identification of shared and trans-boundary issues relating to the management
and enforcement of legislation on these three priority topics in the BOBLME
region, and in particular those issues for which the existing legal and
institutional framework does not permit or enable the implementation and
enforcement of legislation relating to the three priority topics (hereinafter
referred to as "these issues");
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· Analysis of the root causes as to why the existing legal and institutional
framework does not adequately permit or enable the implementation and
enforcement of legislation relating to the three priority topics;
· Prioritization of these issues in order of regional severity;
· Identification of current attempts to address these issues;
· Description of any knowledge gaps, policy distortions, legal and institutional
deficiencies that impede the development of solutions to these issues;
· Suggested actions that should be taken to eliminate such gaps, distortions and
deficiencies;
· Priorities, in terms of regional need, for comprehensive, cross-sectoral
ecosystem-based actions that integrate ecological and development
considerations in response to these issues, including suggestions for sectoral
interventions and for the national/ regional legal and institutional mechanisms
necessary for them to take place;
· Ways to assist the countries in the BOBLME region to better understand these
issues and to work collaboratively to address them;
· Suggestions for location of proposed activities to address these issues in two
types of areas:
-
where maximum demonstration/replication value can be achieved if it is
an innovative activity
-
where the human need is the greatest.
2. The Consultant will in particular consider and address as appropriate the legal and
institutional aspects of the solutions proposed for the problems identified in the eight
National Reports and in the Theme Reviews on the priority topics defined above, as
well as, if possible, the first draft of the study on Options for Regional Collaboration
Mechanisms. The first draft of the National Reports will be provided to the Consultant
as and when received by the Regional Coordinator, which should be in early September
2003. The Theme Reviews will be emailed to the Consultant on 24 November 2003, as
will any additional information and recommendations arising from the eight National
Workshops being held 18-31 October, 2003. The first draft of the Regional
Collaboration Mechanisms Study will be emailed to the Consultant as soon as it is
available. The Consultant may consult directly with the Regional Collaboration
Mechanisms Consultant via phone and email.
3. This review will be conducted as a desk study. No provision is made for regional
travel or consultations in support of the study. Consultations of individuals outside the
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Consultant's home city may take place by voice via telephone or if necessary in writing
by telefax and the long-distance telecommunications expenses incurred by the
Consultant to this end will be reimbursed to the Consultant upon presentation by the
Consultant of an itemized long-distance telephone/telefax bill indicating names and
functions of persons consulted against the phone/fax numbers claimed for
reimbursement. Because of the desk-based nature of this review, its descriptive parts,
which set the stage for the analysis, will therefore draw primarily on published or
otherwise extant and reasonably available information and data that do not require on-
the-spot consultation of documents only available in the region. The existence of such
inaccessible data should be identified with a view to considering improving its
accessibility in the light of the overall purpose of enhancing data exchange in the
BOBLME region.
4. A first draft in bullet points of the principal conclusions of the review will be
received from the Consultant by the Regional Coordinator via email on 22 December
2003.
5. The final review, including an executive summary, will be received from the
Consultant by the Regional Coordinator via email on 25 January 2004 in hard copy and
on disk or CD (MSWord), and the Regional Coordinator will forward it to the FAO
Regional Representative for Asia and the Pacific.
6. The substantive text of the review should be no less than 45 and no more than 65
pages in length, excluding diagrams, annexes, references, etc. The margins will be 4.0
cm on the left side and 2.0 cm on the other three sides and the text lines spaced at 1.5,
not single-spaced, using Font Times New Roman 12 point. The language is English.
7. The Consultant is contracted as an international consultant by the FAO Regional
Office for Asia and the Pacific (FAO-RAP) in Bangkok. (S/H)e is responsible for the
substance of the review to the BOBLME Regional Coordinator, and to FAO-RAP for
administrative and logistical and contractual aspects relating to the production of the
review.
8. Definition of "shared/common" issues: These are similar legislative/institutional
issues concerning the three priority topics that are present in two or more of the
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BOBLME countries even if the subject matter or its effect does not physically straddle
or cross the actual boundary (however defined) between two BOBLME countries.
9. Definition of "transboundary" issues: These are similar legislative/institutional issues
concerning these three priority topics that two or more countries have in common and
that are either likely to require collaborative interventions by the countries concerned or
for which a single-country intervention would achieve maximum
demonstration/replication value for the BOBLME region as a whole.
Duty station:
Home station (no travel)
Entry on duty date: Soonest
Duration:
65 days (WAE) to 25 January 2004
Language:
English
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Executive Summary
This study examines the legislative and enforcement aspects of national law in relation
to achieving a large marine ecosystem in the Bay of Bengal region.
It examines the laws of the individual members of the BOBLME (Bangladesh, India,
Indonesia, Maldives, Malaysia Myanmar, Sri Lanka, and Thailand), considering in
particular their characteristics with respect to the setting up of the exclusive economic
zone, the environment, traditional and customary rights, land based pollution and
protection of critical habitats.
The study has revealed that most laws, while adequate in terms of achieving certain
limited objectives, such as controlling fishing within the EEZ, are non existent when it
comes to dealing with the high seas. There is a need to give effect to recent
Agreements, in particular, the 1995 UN Fish Stocks Agreement and the FAO
Compliance Agreement. More importantly, there is an absence of modern management
concepts in the basic marine laws concerning the objectives of long term sustainable
use, the precautionary approach and the need for ecosystem perspectives to underpin
governmental actions in the marine sector. These should be introduced, possibly as
clauses in key legislation stating the objectives of laws applying to the marine sector.
While most countries have laws which would have provided a basis for protecting
critical habitats, results were mixed, largely due to inadequate implementation of these
laws.
While most countries of the BOBLME region have laws which would have provided a
basis for controlling land based pollution, there was a low level of enforcement of those
laws. In some instances, the fact that the country in question had a federal system of
government was a complicating factor in achieving effective enforcement.
The study considers some possible solutions. Amongst those discussed are: the
recognition of the need to improve capacity, not only in the legal area but also in other
areas related to the marine sector. It also suggests that future collaborative action to
achieve the goals of a LME might be best achieved through a voluntary or soft law
instrument, given the past reluctance of the international community to commit itself by
means of a binding instrument in respect of land-based pollution. However, the
limitations in these soft instruments were also acknowledged.
The study identified that there is still a need for more legal information with respect to
traditional ownership and customary use systems, details on the laws addressing land-
based pollution, and to a lesser extent, critical habitats.
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REVIEW OF LEGAL AND ENFORCEMENT
MECHANISMS IN THE BOBLME REGION
Introduction.
The Bay of Bengal large marine ecosystem (LME) raises for lawyers a wide range of
challenges. Against a background of significant pollution sources in some, most
probably all, of the countries surrounding the LME, there exists a wide range of
economic, social, political and legal variations. From a purely legal point of view, the
LME concept raises some challenging issues in modern international law, for it requires
a consideration of the international law of the sea, with its somewhat restrictive zonal
approach, supplemented by, in particular, a wide range of ambitious soft law
instruments which are endeavouring to chart a more environmentally sound path with
greater emphasis on issues of sustainability and ecosystem considerations.
Even within the framework of the 1982 UN Convention, with the inherent limitations
of the zonal approach, the most important provision from the point of this study,
namely article 207.1 on land based pollution, and which departs from the zonalism of
the Convention, states:
"States shall adopt laws and regulations to prevent, reduce and control pollution of the
marine environment from land based sources, including rivers, estuaries, pipelines an
outfall structures, taking into account internationally agreed rules, standards, and
recommended practices and procedures."
This is backed up by article 213 which imposes an obligation on States to "enforce their
laws and regulations adopted in accordance with article 207 and shall adopt laws and
regulations and take other measures necessary to implement applicable international
rules and standards established through competent international organizations or
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diplomatic conference to prevent, reduce and control pollution of the marine
environment from land-based sources."
Despite, this, progress in reaching agreement on regional or global measures has been
slow, and, significantly, most progress has been made in the form of so called soft law
instruments, such as the Washington Declaration on Protection of the Marine
Environment from Land-based Activities.
Also, while there are calls for ecosystem approaches (for example in WSSD1), it has to
be remembered that there is still a considerable gap between theory and reality in its
implementation.2
The first part of the BOBLME theme review terms of reference for this study call for:
· Description of the current status of the countries' legal and institutional frameworks,
including the traditional ownership and customary use systems, related to the
sustainable management of the BOBLME, and in particular with regard to the
management and enforcement of legislation on the following three priority topics:
exploitation of marine living resources, especially fisheries, health of critical habitats,
1 Thus, in paragraph 30(d) of the Plan of Implementation, there is a call to, "Encourage the application
by 2010 of the ecosystem approach, noting the Reykjavik Declaration on Responsible Fisheries in the
marine Ecosystem and decision V/6 of the conference of the Parties to the Convention on Biological
Diversity." Para 32© also states: "Develop and facilitate the use of diverse approaches and tools,
including the ecosystem approach, the elimination of destructive fishing practices, the establishment of
marine protected areas consistent with international law and based on scientific information, including
representative networks by 2012 and time/area closures for the protection of nursery grounds and
periods, proper coastal land use and watershed planning and the integration of marine and coastal areas
management into key sectors;"
2 For a discussion of this issue, see Edeson "Sustainable Use of Marine Living resources" Heidelberg
Journal of International Law vol 63 p 355 (2003), and "Closing the Gap: the use of Soft law Instruments
to Control Fishing" Vol 20 Australian Yearbook of International Law p.83 (1999)
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especially mangroves and coral reefs, and land-based sources of pollution to the
coastal and marine environment.
It is proposed, therefore, to consider first the applicable laws in the individual countries
of BOBLME. Because this is a desk study, it is important to stress the limitations
involved in such a methodology. Inevitably, there will be an unevenness in this study
simply because, relying mainly on sources available over the internet and other public
sources, some sources are bound to be better than others. In some instances, it is not
possible to get complete texts. In this regard, it would be extremely helpful if national
representatives could furnish any texts of laws that, for whatever reason, have not been
included in this version of the paper. This is especially true in relation to information
on the myriad of laws which can apply to land-based sources of pollution, information
on traditional ownership and customary use systems, and, to a lesser extent, laws
applying to critical habitats.
However, the most important constraint is that it is not always possible to evaluate a
law in its context. A law may be superbly drafted, dripping with environmental
goodies, and, when studied from a distance, it could seem to be the paradigm for
elsewhere. However, without an actual in-country assessment, it is easy to draw the
wrong conclusions about the effectiveness of a law. The perfect law, for example,
might be incapable of implementation on key issues. This can happen very easily in a
federal system. Or, a very imperfect law can sometimes be the best solution available
for a particular country or for a specific legal system for reasons not immediately
apparent from the outside.
Individual countries
Bangladesh
Bangladesh is a parliamentary democracy whose legal system is based on the English
common law.
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The Bangladesh Territorial Waters and Maritime Zones Act 1974 is a basic law which
sets out the claim to sovereignty and sovereign rights over the territorial sea, contiguous
zone continental shelf and EEZ (called an economic zone). It is one of the earlier 200
mile zone claims to have been made as the negotiations for the EEZ were finalized
during the early stages of UNCLOS III. The Act is very general in character, and has a
very broad rule making power.
The Act provides for notification in the government gazette of the baselines from which
the territorial sea is to be measured.
The Act provides that sovereignty of the Republic extends to the territorial waters as
well as to the air space over and the bed and subsoil of, such waters.
It also addresses the exercise of innocent passage of foreign ships through the territorial
sea. A Foreign ship having the right of innocent passage through the territorial waters
shall, while exercising such right, observe the laws and rules in force in Bangladesh. It
also provides for suspension of the right of innocent passage in certain circumstances.
There are several other provisions in this law dealing with innocent passage but they
have very little bearing on the subject of this study.
Provision is also made for a contiguous zone of six nautical miles from the outer limit
of the territorial waters. The zone is unusual inasmuch as it includes security as one of
the grounds for the taking of action by Bangladeshi officials. This is not provided for in
article 33 of the 1982 UN Convention.
The most important aspect of the law for our purposes is the provision it makes for the
proclamation of an "economic" zone.
The relevant section (5) states:
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5. (1) The Government may, by notification in the official Gazette, declare any
zone of the high seas adjacent to the territorial waters to be the economic zone of
Bangladesh specifying therein the limits of such zone.
(2) All natural resources within the economic zone, both living and non-living, on
or under the seabed and sub-soil or on the water surface or within the water
column shall vest exclusively in the Republic.
(3) Nothing in sub-section (2) shall be deemed to affect fishing within the
economic zone by a citizen of Bangladesh who uses for the purpose vessels which
are not mechanically propelled.
In addition, it provides for a "conservation" zone:
6. The Government may, with a view to the maintenance of the productivity of the
living resources of the sea, by notification in the official Gazette, establish
conservation zones in such areas of the sea adjacent to the territorial waters as
may be specified in the notification and may take such conservation measures in
any zone so established as it may deem appropriate for the purpose including
measures to protect the living resources of the sea from indiscriminate
exploitation, depletion or destruction.
From a fisheries point of view, this is less important in view of the enactment of the
Marine Fisheries Ordinance, to which we will return later.
The law also provides for the continental shelf. The most important aspect of the
continental shelf provisions is the following:
(3) No person shall, except under and in accordance with the terms of, a licence
or permission granted by Government explore or exploit any resources of the
continental shelf or carry out any search or excavation or conduct any research
within the limits of the continental shelf:
Provided that no such licence or permission shall be necessary for fishing by a
citizen of Bangladesh who uses for the purpose vessels which are not
mechanically propelled.
Explanation: Resources of the continental shelf include mineral and other non-
living resources together with living organisms belonging to sedentary species,
that is to say, organisms which at the harvestable stage, either are immobile on or
under the seabed or are unable to move except in constant physical contact with
the seabed or the
subsoil.
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(4) The Government may construct, maintain or operate within the continental
shelf installations and other devices necessary for the exploration and
exploitation of its resources.
This provision could have some relevance to the BOBLME as activities undertaken on
the continental shelf could have considerable impact on an ecosystem approach.
However, it will depend on the activity in question whether action would be taken
under this law or under the more detailed Marine Fisheries Ordinance. For practical
purposes, it is likely to be the Marine Fisheries Ordinance.
The Act also provides in a very general way for dealing with pollution in areas beyond
the territorial sea:
8. The Government may, with a view to preventing and controlling marine
pollution and preserving the quality and ecological balance in the marine
environment in the high seas adjacent to the territorial waters, take such
measures as it may deem appropriate for the purpose.
The Act is backed up with a general power to make rules.
9. (1) The Government may makes rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power,
such rules may provide -
(a) for the regulation of the conduct of any person in or upon the territorial
waters, contiguous zone, economic zone, conservation zone and continental shelf;
(b) for measures to protect, use and exploit the resources of the economic zone;
(c) for conservation measures to protect the living resources of the sea;
(d) for measures regulating the exploration and exploitation of resources within
the continental shelf;
(e) for measures designed to prevent and control of marine pollution of the high
seas.
(3) In making any rule under this section the Government may provide that a
contravention of the rule shall be punishable with imprisonment which may
extend to one year or with fine which may extend to five thousand takas.
At one level, the law can be judged as useful in that it provides many of the basic
powers needed to deal with activities in the economic zone or on the continental shelf.
The law suffers, however, from the basic problem of many laws enacted to give effect
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to aspects of the 1982 UN Convention, namely that it was more in the nature of an
enabling Act. It did not in itself provide sufficient guidance on how to achieve the
various important goals concerning in particular fisheries and environmental protection.
Not surprisingly, this Act has since been supplemented by more detailed laws
especially as regards fisheries; however, some of its provisions could be used as a basis
for action to promote ecosystem considerations, even though the concept is not
specifically referred to in the law.
The most important one for fisheries is the Marine Fisheries Ordinance, 1983. This is a
comprehensive fisheries law which for its time was very well drafted. It provides an
effective basis for the control of fishing activities, both foreign and local, in the
"economic" zone (and territorial sea and internal waters).
This Ordinance contains 11 Parts divided into 55 sections: i.e. Preliminary (I);
Administration (II); General Provisions Governing Licences (III); Local Marine Fishing
Operations (IV); Foreign Marine Fishing Operations (V); Appeal (VI); Prohibited
Fishing Methods (VII); Marine Reserves (VIII); Powers of Authorized Officers (IX);
Offences and Legal Procedures (X); Rules (XI).
Under Part I, section 3 provides that the Government may exempt any non-mechanized
and limited horsepower local fishing vessel from the general provisions governing
licences. The Government may also determine a specific zone in which only such
vessels may engage in fishing operations (sect. 3(2)). Part II is devoted to
administration. Under Part III, there are general provisions governing licences, licences
are not transferable except with written permission of the Director and the holder of a
licence has a duty to provide information regarding catch. In order to be issued a
licence, local fishing vessels shall be registered and shall have been inspected (Part IV).
Fishing operations conducted by foreign fishing vessels are subject to prior
authorization (Part V). Decisions made by the Director or a fisheries officer can be
appealed against (Part VI). Prohibited fishing methods are set out in Part VII and
include use of explosives, and use of fishing nets with unlawful mesh size. For
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conservation and management purposes, the Government may declare any area of the
Bangladesh fisheries waters and any adjacent or surrounding land to be a marine
reserve (Part VIII). Part IX and X deal with powers of authorized officers and offences
and legal procedures respectively. Lastly, Part XI sets out the matters upon which the
Government is authorized to make rules, and these are very detailed in their scope.
One aspect of the law should be noted, which is that the definition of Bangladesh
fisheries waters includes not only the territorial waters and the economic zone, but also
"any other marine waters over which [the government] has or claims to have
jurisdiction under law with respect to the management, conservation and development
of the marine living resources."
This theoretically would enable the extension of jurisdiction onto the high seas,
however, it is doubtful if this can be achieved by means of a definition alone.
The law does, however, contain an extensive power to impose conditions on both local
and foreign fishing. See section 16. This accompanied by an extensive rule making
power, and is an effective basis for the management of marine living resources within
the 200 miles zone. However, the law also reflects the era in which it was prepared, as
it is typical of the laws enacted to give effect to the 200 mile zone concept located in
the 1982 UN Convention. At the time it was drafted, of course, the Convention was still
being negotiated at UNCLOS III, but in accordance with the practice of many
countries, exclusive economic zone laws were enacted prior to its completion.
The shortcomings in the law are essentially that it does not incorporate the
developments which have taken place since the coming into force of the 1982 UN
Convention. In particular, it does not address the issues raised in the 1995 UN Fish
Stocks Agreement or the 1993 FAO Compliance Agreement. Nor does it provide a
basis for addressing issues raised in the FAO Code of Conduct for Responsible
Fisheries or the International Plan of Action on IUU Fishing formulated under it. Put
very simply, it does not provide an effective basis for Bangladesh to participate in
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international fisheries management regimes along the lines provided for in particular in
these international instruments. Further, it ability to undertake high seas enforcement,
even against its own nationals will be severely restricted.
On two issues of particular relevance to the setting up of an LME for the Bay of
Bengal, it is also defective, namely the fact that it does not include references to the
precautionary approach to fisheries management, nor to the principles set out in Article
5 of the 1995 UN Fish Stocks Agreement. The failure to refer to the precautionary
approach should not, however, be overstated, for while a valid comment and therefore
needing attention, it is still possible for action to be taken within 200 miles that would
involve the application of precautionary approaches. A precautionary measure does not
have to be thus described in order to be precautionary in effect. On the other hand, the
adoption of ecosystem approaches could prove to be more difficult as it would involve
matters going beyond specifically fisheries issues. Thus, action taken under that law
which went further could arguably run into the ultra vires principle.
The inability to address issues on the high seas is, however, a more serious
shortcoming, as until legislation is introduced to pick up the provisions of these two
agreements the 1995 UN Fish Stocks Agreement and the 1993 FAO Compliance
Agreement Bangladesh will be limited in what it can do in area beyond its economic
zone. To that extent, its ability to participate in a LME arrangement will be limited,
though not entirely impossible.
Environment law: The Environment Conservation Act 1995 is a very comprehensive
and general law, which is not however directed specifically towards marine pollution or
marine environmental controls, but with its general wording and the fact that it is stated
to override any other laws, could provide a basis at least for coordination of the
activities of agencies having relevance to the objectives of the Act.
Section 2A Overriding effect of the Act reads- Notwithstanding anything contained to
the contrary in any other law for the time being in force, the provisions of this Act,
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rules and directions issued under this Act shall have effect. Thus, the absence of a
specific territorial application clause, which in many laws can be vital to their
application beyond the land territory, may not be crucial here.
The Act in section 2 contains a number of definitions, the most interesting of which are
set out in the footnote3:
Section 4 sets out the power of the Director-General, and it is worth setting out here:
4. Power and functions of the Director General.- (1) Subject to the
provisions of this Act, the Director General may take such measures as he
considers necessary and expedient for the conservation of the environment, and
improvement of environmental standards, and for the control and mitigation of
environmental pollution, and he may issue necessary directions in writing to any
person for the discharge of his duties under this Act.
3
"conservation of environment" means improvement of the qualitative and
quantitative characteristics of different components of environment as well
as prevention of degradation of those components;
"ecosystem" means the inter-dependent and balanced complex association
of all components of the environment which can support and influence the
conservation and growth of all living organisms;
"environment" means the inter-relationship existing between water, air,
soil and physical property and their relationship with human beings, other
animals, plants and micro-organisms;
"environment pollutant" means any solid, liquid or gaseous substance
which causes harmful effect to the environment and also includes heat,
sound and radiation;
"hazardous substance" means a substance, the chemical or biochemical
properties of which are such that its manufacture, storage, discharge or
unregulated transportation can be harmful to the environment;
"pollution" means the contamination or alteration of the physical, chemical
or biological properties of air, water or soil, including change in their
temperature, taste, odor, density, or any other characteristics, or such other
activity which, by way of discharging any liquid, gaseous, solid, radioactive
or other substances into air, water or soil or any component of the
environment, destroys or causes injury or harm to public health or to
domestic, commercial, industrial, agricultural, recreational or other useful
activity, or which by such discharge destroys or causes injury or harm to
air, water, soil, livestock, wild animal, bird, fish, plant or other forms of
life;
"waste" means any solid, liquid, gaseous, radioactive substance, the
discharge, disposal and dumping of which may cause harmful change to the
environment;
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(2) In particular and without prejudice to the generality of the foregoing power,
such measures may include all or any of the following :-
(a) co-ordination with the activities of any authority or agency having relevance
to the objectives of this Act;
(b) prevention of probable accidents which may cause environmental degradation
and pollution, undertaking safety measures and determination of remedial
measures for such accidents and issuance of directions relating thereto;
(c) giving advice or, as the case may be, issuing directions to the concerned
person regarding the environmentally sound use, storage, transportation, import
and export of a hazardous substance or its components.
(d) conducting inquiries and undertaking research on conservation, improvement
and pollution of the environment and rendering assistance to any other authority
or organization regarding those matters;
(e) searching any place, examining any equipment, manufacturing or other
processes, ingredients, or substance for the purpose of improvement of the
environment, and control and mitigation of pollution; and issuance of direction or
order to the appropriate authority or person for the prevention, control and
mitigation of environmental pollution;
(f) collection and publication of information about environmental pollution;
(g) advising the Government to avoid such manufacturing processes, commodities
and substances as are likely to cause environmental pollution;
(h) carrying out programs for observation of the quality of drinking water and
preparation of reports thereon, and rendering advice or, as the case may be,
issuing direction to the concerned persons to follow standards for drinking water.
(3) A direction issued under this section may include matters relating to closure,
prohibition or regulation of any industry, undertakings or processes, and the
concerned person shall be bound to comply with such direction:
Provided that-
(a) the Director General shall, before issuing a direction of closure or prohibition
of an industry, undertaking or process, send to the owner or occupier thereof a
written notice so that he gets reasonable opportunity to make that industry,
undertaking or process environmentally sound; and
(b) where the Director General considers it appropriate, he may also specify in
the notice that actions under sub-section (2 of section 4A may be taken if,
pursuant to the notice, measures are not taken to make the relevant activities
environmentally sound:
Provided further that, if the Director General considers that, due to a particular
environmental pollution, the public life is likely to be in danger and that urgent
action is necessary, he may immediately issue necessary directions.
(4) A time limit may be specified by the Director General for carrying out a
direction issued under this section.
It will be seen that these powers would enable the Director General to undertake
important activities. The most important one is the power to undertake a coordinating
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role, as it could well be that in relation to ecosystem management, it will be
coordination across a range of sectors that will be the most important.
Land based pollution
Very little information could be found on the existence of laws in Bangladesh which
provided a basis for controlling land based pollution. The Territorial Waters and
Maritime Zones Act, 1974 does contain a general power to make rules with respect to
marine pollution. See above. Presumably there do exist some laws which could provide
a basis for the control of some of the pollution entering the Bay of Bengal from
Bangladesh. More importantly, if they do exist, they do not appear to be having any
effect. This is brought out very vividly in the paper by Kaly. It is interesting also to note
that (at p.89) she refers to standards being set regarding effluents of certain industries
"but these are regularly exceeded and there appears to be no self regulation." She also
refers to controls on the imports of certain products such as organo-chlorine pesticides,
though these are not effectively enforced.
In the National review of Bangladesh, under 9.2 , it is said: "...very few steps have been
taken to implement [the Law of the sea] in Bangladesh...Thus, Bangladesh has more
than 200 rules and regulation on Environment. .. So, the question is not inadequacy of
laws but problem is its poor implementation."
One of the laws referred to is the Factories Act 1965. Section 12 (i) of this act says that
every factory shall be kept clean and free from effluent arising from any drain privy or
other nuisance and in particular accumulation of dirt and refuse shall be removed daily.
Section 13(i) of this act specifies that effective arrangement shall be made in every
factory for the disposal of wastes and effluent due to the manufacturing process carried
on therein
Under the Environment Conservation Rules, 1997, the following is provided for:
3. Declaration of Ecologically Critical Area. (1) The Government shall
take the following factors into consideration while declaring any area as
Ecologically Critical Area under sub-section (1) of section 5:-
(a) human habitat;
18
(b) ancient monument;
(c) archeological site;
(d) forest sanctuary;
(e) national park;
(f) game reserve;
(g) wild animals habitat;
(h) wetland;
(i) mangrove;
(j) forest area;
(k) bio-diversity of the relevant area; and
(l) other relevant factors.
(2) The Government shall, in accordance with the standards referred to in rules
12 and 13, specify the activities or processes which can not be continued or
initiated in an Ecologically Critical Area.
The Environment Court Act 2000 provides for a judicial determination of certain
environmental offences. Its preamble states:
Whereas it is expedient and necessary to provide for the establishment of
Environment Courts for the trial of offences relating to environmental pollution
and
matters incidental thereto;
Its scope is revealed in the following definition:
"environmental law" means this Act, the Bangladesh Environment
Conservation Act, 1995 (Act No. 1 of 1995), any other law specified by the
Government in the official Gazette for the purposes of this Act, and the
rules made under these laws.
It is not possible to ascertain how effective this court has been in its short existence.
However, the idea of having a dedicated court to Address environmental matters is a
good idea inasmuch as it allows for a specialization among judges in what is to many
an unknown and uncharted area of the law.
In addition, the National report drew attention to the following information on possible
laws that have not already been referred to above.
Forest Act (Amendment) 1989,
Wildlife Act 1974,
19
Brick Burning Act 1991,
Open Space and Wetland Conservation Act 2002,
No detailed information is available concerning these laws
Traditional ownership and customary use systems
Very little information could be obtained from web based sources on this. According to
Angell (p.24) in reference to the Sundarbans "traditional right of access was though
membership of village samaj dominate by local elite which controlled access. These
rights were not formally regulated, but were the birthright of the community."
This raises a basic problem in the type of analysis we are undertaking, namely, the
relationship between formal laws enacted by the legislature and local customs or
traditional law. The formal laws will presumably override in most instances these
customary laws (unless there is a constitutional protection), but on the other hand, in
certain remote areas, these customary laws or traditional uses will inevitably be more
important, though often very difficult to document. As was once said about the Indian
Penal Code (a brilliantly drafted law for its time in the nineteenth century): to say that it
applied throughout India was formally correct, but a more relevant question was to ask:
how far away is the nearest police station?
The same type of question inevitably will underlie a study of the present kind: a
conventional legal analysis done as a desk study can only provide part of the answer as
to what laws actually apply in certain more remote locations.
Critical habitats
Angell reports that there is extensive damage being done as a result of coral mining.
There is very little evidence of laws being applied in regard to coral reefs and mangrove
swamps, though it could also be that there are no specific laws.
20
Overall assessment: The basic fisheries law is good, but it needs to be
supplemented by the introduction of legislation to deal with high seas fishing, and
the incorporation of modern management objectives (long term sustainable use,
precautionary approach, and ecosystem considerations) both for the high seas and
in the economic zone. It will also in this context be necessary to provide for other
post UNCED developments, such as the IPOA-IUU.
Land based pollution is a serious problem and the laws themselves are insufficient
while those which exist are almost certainly not effectively implemented.
The environmental law, combined with the environmental court which has been
established, is a promising initiative, though it is probably too early to evaluate the
impact of the latter.
While the national legislation has many elements which could be drawn upon, it
would not overall provide a solid basis for giving effect to ecosystem wide
management approaches.
India
India is a Union of states and territories, consequently with a division of jurisdiction
along typical lines for a federal system. It is a parliamentary democracy and its legal
system is based on the English common law.
In the territorial sea, states have some jurisdiction over fisheries, though in the EEZs,
this is a matter for the central authorities.
The Territorial Waters Continental Shelf Exclusive Economic Zone and other Maritime
Zones Act 1976 is the basic law for its maritime zones. This law sets out the assertion
of sovereignty and sovereign rights over the territorial sea, contiguous zone, EEZ, and
other maritime zones. The EEZ provisions are quite comprehensive, and would provide
the basis for India to exercise control over that zone for the purposes of international
law. In particular, it may be noted that it provides for exercising the following rights:
(a) sovereign rights for the purpose of exploration, exploitation, conservation and
management of the natural resources, both living and non-living as well as for
producing energy from tides, winds and currents;
21
(b) exclusive rights and jurisdiction for the construction, maintenance or
operation of
artificial islands, off-shore terminals, installations and other structures and
devices necessary for the exploration and exploitation of the resources of the zone
or for the convenience of shipping or for any other purpose;
(c) exclusive jurisdiction to authorize, regulate and control scientific research;
(d) exclusive jurisdiction to preserve and protect the marine environment and to
prevent and control marine pollution; and
(e) such other rights as are recognized by International Law.
(5) No person (including a foreign Government) shall, except under, and in
accordance with, the terms of any agreement with the Central Government or of a
licence or a letter of authority granted by the Central Government, explore or
exploit any resources of the exclusive economic zone or carry out any research or
excavation or conduct any research within the exclusive economic zone or drill
therein or construct, maintain or operate any artificial island, off-shore terminal,
installation or other structure or device therein for any purpose whatsoever:
Provided that nothing in this sub-section shall apply in relation to fishing by a
citizen of India.
More recently, India has enacted the Maritime Zones of India (Regulation of Fishing by
Foreign Vessels) Act of 1981, and the Maritime Zones of India (Regulation of Fishing
by Foreign Vessels) Rules of 1982.
These apply to foreign flag vessels owned by foreign interests and foreign flag vessels
chartered by an Indian citizen or company. It regulates foreign fishing in territorial
waters.
However, it is still not clear if there are laws governing fishing by Indians in the EEZ,
though it would be surprising if this were not the case.
While there appears to be some uncertainty about the exact extent of the laws as regards
local fishers, there does appear to be the basis for effective application of laws
regarding fishing in the territorial sea and the EEZ. The legal regime does, however,
need to be updated with respect to post UNCED developments, especially the Code of
Conduct for Responsible Fisheries, the 1995 UN Fish Stocks Agreement, Compliance
Agreement and IPOA-IUU.
22
Environmental legislation.
The Environment (Protection) Act, 1986 is an all embracing Act which extends to the
whole of India, and has some very wide definitions in it.
Its basic objective however is to provide a coordinating role, including the actions of
State governments, as well as setting down standards, emission controls, restriction of
areas, procedures and safeguards, inspections of premises, etc
The following chapter is important enough to merit being quoted in full:
CHAPTER II
GENERAL POWERS OF THE CENTRAL GOVERNMENT
3. POWER OF CENTRAL GOVERNMENT TO TAKE MEASURES TO
PROTECT AND IMPROVE ENVIRONMENT
(1) Subject to the provisions of this Act, the Central Government, shall have the
power to take all such measures as it deems necessary or expedient for the
purpose of protecting and improving the quality of the environment and
preventing controlling and abating environmental pollution.
(2) In particular, and without prejudice to the generality of the provisions of sub-
section (1), such measures may include measures with respect to all or any of the
following matters, namely:--
(i) co-ordination of actions by the State Governments, officers and other
authorities--
(a) under this Act, or the rules made thereunder, or
(b) under any other law for the time being in force which is relatable to the
objects of this Act;
23
(ii) planning and execution of a nation-wide programme for the prevention,
control and abatement of environmental pollution;
(iii) laying down standards for the quality of environment in its various aspects;
(iv) laying down standards for emission or discharge of environmental pollutants
from various sources whatsoever:
Provided that different standards for emission or discharge may be laid down
under this clause from different sources having regard to the quality or
composition of the emission or discharge of environmental pollutants from such
sources;
(v) restriction of areas in which any industries, operations or processes or class
of industries, operations or processes shall not be carried out or shall be carried
out subject to certain safeguards;
(vi) laying down procedures and safeguards for the prevention of accidents which
may cause environmental pollution and remedial measures for such accidents;
(vii) laying down procedures and safeguards for the handling of hazardous
substances;
(viii) examination of such manufacturing processes, materials and substances as
are likely to cause environmental pollution;
(ix) carrying out and sponsoring investigations and research relating to problems
of environmental pollution;
(x) inspection of any premises, plant, equipment, machinery, manufacturing or
other processes, materials or substances and giving, by order, of such directions
to such authorities, officers or persons as it may consider necessary to take steps
for the prevention, control and abatement of environmental pollution;
(xi) establishment or recognition of environmental laboratories and institutes to
carry out the functions entrusted to such environmental laboratories and institutes
under this Act;
(xii) collection and dissemination of information in respect of matters relating to
environmental pollution;
(xiii) preparation of manuals, codes or guides relating to the prevention, control
and abatement of environmental pollution;
24
(xiv) such other matters as the Central Government deems necessary or expedient
for the purpose of securing the effective implementation of the provisions of this
Act.
(3) The Central Government may, if it considers it necessary or expedient so to do
for the purpose of this Act, by order, published in the Official Gazette, constitute
an authority or authorities by such name or names as may be specified in the
order for the purpose of exercising and performing such of the powers and
functions (including the power to issue directions under section 5) of the Central
Government under this Act and for taking measures with respect to such of the
matters referred to in sub-section (2) as may be mentioned in the order and
subject to the supervision and control of the Central Government and the
provisions of such order, such authority or authorities may exercise and powers
or perform the functions or take the measures so mentioned in the order as if such
authority or authorities had been empowered by this Act to exercise those powers
or perform those functions or take such measures.
It also provides for the issuance of binding directions, and it provides a wide power to
make rules.
Under this law, some authorities have been established. These are The Aquaculture
Authority (by notification of 6 February 1997). This authority is given the following
powers and functions:
2.
The Authority shall exercise the following powers and perform the following
functions, namely: -
i.
exercise of powers under section 5 of the Environment (Protection) Act, 1986
for issuing directions and for taking measures with respect to matters referred to
in clauses (v), (vi), (vii), (viii), (ix) and (xii) of sub-section (2) of section 3 of the
said Act;
ii.
...........
iii.
to ensure that no shrimp culture pond can be constructed or set up within the
Coastal Regulation Zone and up to 1000 m of Chilka lake and Pulicat lake
(including bird sanctuaries namely, Yadurapattu and Nelapattu);
iv.
to ensure and give approval to the farmers who are operating traditional and
improved traditional systems of aquaculture for adoption of improved technology
for increased production;
v.
to ensure that the agricultural lands, salt pan lands, mangroves, wetlands,
forest lands, land for village common purposes and the land meant for public
purposes shall not be used or converted for construction of shrimp culture ponds;
25
vi.
the Authority shall implement the "Precautionary Principle" and the "Polluter
Pays Principle", by adopting the procedure described in the Supreme Court order
dated 11.12.1996 passed in the Writ Petition (Civil) No. 561 of 1994;
vii.
the Authority shall also regulate the shrimp culture activities outside the
Coastal Regulation Zone areas and beyond 1000 m from the Pulicat lake and
Chilka lake and also give the necessary approvals/authorization by the 30th April
1997.
viii.
the Authority in consultation with expert bodies like National Environmental
Engineering Research Institute, Central Pollution Control Board, respective State
Pollution Control Boards shall frame Scheme/Schemes for reversing the damage
caused to the ecology and environment by pollution in the coastal States and
Union Territories;
ix.
the Authority shall ensure the payment of compensation to the workmen
employed in the shrimp culture industries as per the procedure laid down in the
Supreme Court Order dated 11.12.96 passed in the Writ Petition (Civil) No. 561
of 1994;
x.
to comply with the relevant orders issued by the concerned High Courts and
Supreme Court from time to time;
xi.
to deal with any other relevant environment issues pertaining to coastal areas
with respect to shrimp culture farming, including those which may be referred to
it by the Central Government in the Ministry of Environment and Forests.
2.
The jurisdiction of the Authority shall cover all the coastal States and Union
territories.
3.
The Scheme/Schemes framed by the Authority for reversing the damage caused
due to the pollution in the coastal States and Union Territories shall be executed
by the respective State Governments and Union Territory Administrations under
the supervision of the Central Government.
4.
The Authority shall function under the administrative control of Government of
India in the Ministry of Agriculture, with its headquarters at Chennai
(Tamilnadu)
5.
The terms and conditions of appointment of the Chairperson and Members shall
be as determined by the Central Government from time to time.
There has also been established a National Coastal Zone Authority (26 November
1998), which has the following powers:
II. The Authority shall have the power to take the following measures for
protecting and improving the quality of the coastal environment and preventing,
abating and controlling environmental pollution in coastal areas, namely:-
(i) Co-ordination of action by the State Coastal Zone Management Authorities
and the Union Territory Coastal Zone Management Authorities under the said Act
26
and the rules made thereunder, or under any other law which is relatable to the
objects of the said Act.
(ii) Examination of the proposals for changes and modifications in classification
of Coastal Regulation Zone areas and in me Coastal Zone Management Plans
received from the State Coastal Zone Management Authorities and the Union
Territory Coastal Zone Management Authorities, and making specific
recommendations to the Central Government therefore.
(iii).......
(a) Review of cases involving violations of the previous of the said Act and the
rules made thereunder, or under any other law which is relatable to the objects of
the said Act and, if found necessary, issue directions under section 5 of the said
Act.
(b) Review of cases under (iii) (a) either suo-moto, or on the basis of complaint
made by an individual or a representative body, or an organization functioning in
the field of environment.
(iv) File complaints, under section 19 of the said Act in cases of non-compliance
of the directions issued by it under sub-paragraph (iii) (a) of paragraph II of the
Order.
(v) To take action under section 10 of the said Act to verify the facts concerning
the issues arising from sub-paragraphs (i), (iii) and (iii) of paragraph II of the
Order.
III. The Authority shall provide technical assistance and guidance to the
concerned State Government, Union Territory Governments/Administrations, the
State Coastal Zone Management Authorities, the Union Territory Coastal Zone
Management Authorities, and other institutions/organization as may be found
necessary, in matters relating to the protection and improvement of the coastal
environment.
IV. The authority shall examine and accord its approval to area specific
management plans, integrated Coastal Zone Management Authorities and Union
Territory Coastal Zone Management Authorities.
V. The Authority may advise the Central Government on policy, planning,
research and development, setting up of Centres of Excellence and funding, in
matters relating to Coastal Regulation Zone Management
VI. The Authority shall deal with all environmental issues relating to Coastal
Regulation Zone which may be referred to it by the Central Government.
27
VII. The Authority shall furnish report of its activities and the activities of the
State Coastal Zone Management Authorities and Union Territory Coastal Zone
Management Authorities at least once in six months to the Central Government.
VIII. The foregoing powers and functions of the Authority shall be subject to the
supervision and control of the Central Government.
These two authorities give an indication of the kinds of approaches that can be taken
under the Environment Law. Also, they concern two areas of critical importance to this
study, namely, aquaculture and the coastal zone.
There are a number of other laws which are reported in the National consultant's report,
several of which could not be located on the web. These are:
1.1 Air (Prevention and Control of Pollution) Act, 1981:
The objective of the Air Act is to prevent, control and reduce air pollution including
noise pollution and to establish Boards at the States/UTs for this.
1.2 Water Prevention and Control of Pollution) Act, 1974:
The main provisions of this Act aim at prevention and control of water pollution as well
as restoration of water quality, through the establishment of State Pollution Control
Boards. Some salient features of this Act are-
· No person shall knowingly cause or permit any poisonous, noxious or polluting
matter determined in accordance with such standards as may be laid down by the State
Board to enter (whether directly or indirectly) into any stream or well or sewer or on
land.
· No person shall knowingly cause or permit to enter into any stream any other matter
which may tend, either directly or in combination with similar matters, to impede the
proper flow of the water of the stream in a manner leading or likely to lead to a
substantial aggravation of pollution due to other causes or of its consequences.
1.3. Hazardous Wastes (Management and Handling) Rules, 1989:
The Hazardous Wastes (Management & Handling) Rules were notified in 1989 and
amended in 2000. These Rules provide for a control on the generation, collection,
treatment, transport, import, storage and disposal of wastes listed in the schedule
annexed to these rules. The implementations of these rules are through the identified
State agencies, namely, State Pollution Control Boards and the State Government
(Department of Environment).
Hazardous wastes have been defined in terms of 44 processes and 123 waste streams
mentioned in Schedule 1 and 79 substances along with concentration limits specified in
Schedule 2. For the purpose of imports and exports, a separate Schedule of Wastes
(Schedule 3) has been incorporated. Identification of sites for the disposal of hazardous
wastes in the States has also been specified.
28
1.4 Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 (amended
in October 1994)
The Manufacture, Storage and Import of Hazardous Chemicals Rules were notified on
27 November, 1989, under the Environment (Protection) Act, 1986. The first set of
amendments to this rule was gazetted on 3 October, 1994. The second set of
amendments was notified in January, 2000.
The principal objectives of the regulation are the prevention of major accidents arising
from industrial activities, the limitation of the effects of such accidents both on man and
on the environment and the harmonization of the various control measures and the
agencies to prevent and limit major accidents.
1.5 Chemical Accident (Emergency Planning, Preparedness and Response) Rules,
1996.
This set of rules provides a statutory back-up for setting up of a Crisis Group in
districts and states which have Major Accident Hazard Installations ( MAH) and
providing information to the public. The rules define major accident hazard
installations which include industrial activity, transport and isolated storages at a site
handling hazardous chemicals in quantities specified. .
1.6 Bio-Medical Wastes (Management & Handling) Rules, 1998.
The Bio-Medical Waste (Management & Handling) Rules were notified on 27 July,
1998. These rules were amended on 6 March and 2 June. These Rules provide for
segregation, packaging, transportation, storage, treatment and disposal of wastes
generated by hospitals, clinics and laboratories.
1.7 Municipal Solid Waste Rules, 2000
The Ministry of Environment & Forests has brought out the Municipal Solid Wastes
(Management & Handling) Rules on 25 September, 2000 with the objective to regulate
collection, segregation, transportation, processing and disposal of municipal wastes
including commercial and residential wastes generated in a municipal or notified area
in solid or semi-sold form. The regulations also apply to treated bio-medical waste, but
do not cover industrial hazardous wastes. Salient features of these rules are as follows:
· The wastes are required to be collected, segregated, stored, transported, processed
and disposed of by the Municipal Authorities in accordance with the procedure laid
down under the rules. Municipal Authorities are required to notify the waste collection
schedule and the likely method of collection, segregation and processing of wastes.
· The rules provide for segregation of bio-degradable, recyclable and other wastes and
a colour scheme for bins to facilitate collection and segregation of different wastes
categories ( green bins for biodegradable wastes, white for recyclable and black for
other non-biodegradable wastes).
· In order to minimise the burden on landfills for waste disposal, the rules provide
several options for processing and disposal of wastes like composting, venni
29
composting, anaerobic digestion, recycling, incineration (with or without energy
recovery) and pelletisation.
1.8 Coastal Regulation Zone Notification, 1991:
A critical aspect of environmental protection and preservation relates to regulation and
prohibition of various activities in coastal areas. Major developments in this area are
currently underway, which give rise to optimism concerning a pro-active policy
towards integrated ocean and coastal marine management. Under the Environmental
(Protection) Act 1986, the central government's notifications of 1991 and 1994
declared coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which
are influenced by tidal action (on the landward side) up to 500 meters from High Tide
Line (HTL) , and between the Low Tide Line (L TL) and HTL, as Coastal Regulation
Zones (CRZ) , and thereby regulated activities such as the establishment of new
industries, and the reclamation of land.
Definition: Coastal Regulation Zone Notification, 1991:
The Coastal Regulation Zone ( CRZ) Notification, issued on 19 February, 1991,
declares coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which
are influenced by tidal action ( on the landward side), up to 500 meters from the high
tide line and the inter-tidal zone as the Coastal Regulation Zone. This Notification was
issued under Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act,
1986 and Rule 5 (3)(d) of the Environmental ( Protection) Rules, 1986.
(a) Restrictions under Coastal Regulation Zone Notification, 1991:
The Notification imposes restrictions on the setting up and expansion of industries and
operations or processes, etc., in the Coastal Regulation Zone. It defines the Coastal
Regulation Zone using the High Tide Line ( HTL) as the reference point. The HTL has
been defined as the line on the land up to which the highest water line reaches during
the spring tide. The Notification also clarifies that the HTL shall be demarcated
universally in all parts of the country by the demarcating authority, authorized by the
Central Government in consultation with the Surveyor General of India. It is stipulated
that the distance from the HTL shall apply to both sides in the case of rivers, creeks and
backwaters and may be modified on a case-to-case basis for reasons to be recorded
while preparing the Coastal Zone Management Plans. However, this distance shall not
be less than 100 meters or the width of the creek, river or backwater, whichever is less.
(b) Prohibited Activities under Coastal Regulation Zone Notification, 1991: The
notification lists the prohibited activities in the Coastal Regulation Zone. The
prohibited activities include:
(a) Setting up of new industries and expansion of existing industries except those
directly related to waterfront or directly needing foreshore facilities.
(b) Manufacture or handing or storage or disposal of hazardous substances except
storage of identified petroleum products in the existing port limits of existing ports and
harbours and in those areas of ports that have not been classified as CRZ-I.
30
(c) Setting up of effluent treatment plants.
(d) Dumping of city or town waste for the purpose of landfilling of otherwise, ash or
any waste from thermal power station.
(e) Mining of sands, rocks and other substrata materials except those rare minerals not
available outside CRZ.
The CRZ Notification also lists the permissible activities that are regulated. The
permissible activities are those which require water-front and foreshore facilities and
require environmental clearance. These include:
(a) Construction activities related to defence requirements.
(b) Operational construction of ports and harbours, lighthouses, jetties, wharves, etc.
(c) Foreshore facilities for transport of raw material, for intake of cooling water and
outfall for discharge of treated water, cooling water for thermal plants.
(d) Construction of hotels and beach resorts between 200 and 500 meters of HTL in
designated areas of CRZ III.
(e) Reconstruction of authorized buildings subject to existing FSI/F AR norms in CRZ II
areas.
(f) Construction of buildings on the landward side of existing roads or roads proposed
in the approved CZMP.
(g) and reclamation for construction of ports, harbours, jetties, wharves, bridges and
sea links and other facilities essential for activities permissible under the Notification.
Land based sources of pollution
The report by Kaly provides strong graphic illustration of the extent of the problem of
land based pollution in India. The extent of this pollution and the existence of numerous
laws referred to above from the national consultant's report would suggest that there is
a problem of enforcement, rather than a lack of applicable law. Kaly (p 92) refers to
legislation setting out standards on sewage, which are not applied. The list above from
the National consultant's report is probably the best source of information available
short of visiting New Delhi or some other major centre.
There may be scope for further coordinating efforts to be made under the Environment
Protection Act.
.
Critical habitats
In the report of Angell, there is a reference to aquaculture being controlled in certain
parts. However, it is a matter for both central and local authorities. Also Angell refers
31
(p 30) to the use of Wild Life Protection Act banning aquaculture in protected areas and
declared biosphere reserves.
Traditional ownership and customary use systems.
There was no detailed information on traditional ownership and customary use systems.
However, it cam be assumed that there must be some in operation in at least some
localities.
It is useful to conclude with this brief summary provided in the national consultant's
report:
Fisheries in the region have open access. Constitutionally the prefecture
governments have full powers to deal with fisheries in the territorial limits
adjoining their respective coastline. The power to make law for the EEZ is vested
with the Union Government. The Marine Fishing Regulation Acts (MFRA) have
been enacted by all the prefecture governments in the region except the A&N
Islands, where the process is in advanced stages. The Indian Fisheries Act (1897),
the Territorial Waters Continental Shelf, Exclusive Economic Zone and other
Maritime Zones Act (1976), The Maritime Zones of India (Regulation of Fishing
by Foreign Vessels) Act (1981), The Environment (Protection) Act (1986) and The
Coastal Regulation Zone Notification (1991) are the important central
legislations available for regulating activities in the seas around the country and
coastal zones.
An Aquaculture Authority Bill intended to regulate mainly coastal aquaculture is
under promulgation. The existing legal framework is too weak or the enforcement
mechanisms are inadequate to manage fisheries in the federal states.
Overall assessment. The fisheries laws need to be updated to ensure that there is
an effective control over Indian nationals fishing in the EEZ if that is not already
provided for. There is also a need to give effect to the 1995 UN Fish Stocks
Agreement and the FAO Compliance Agreement. Until that is done, India will not
be in a position to control the activities of its own fishers on the high seas. It will
also be limited in its ability to participate fully in some future regional or sub
regional fisheries agreements or arrangements. It also needs to ensure that
modern management concepts such as the precautionary approach and ecosystem
considerations are given a role in national legislation as a basis for administrative
action.
Its sectoral environment law seems to be well drafted but it is not clear that it is
being effective for example in controlling land based pollution. Also, with regard
32
to the latter, because it is a federal system, it can be expected that there will be
both unevenness in the application of the laws and in their effectiveness from one
state to another. This is problem which is common to many federal states.
Aquaculture is a continuing problem in mangrove habitats. Again, it has not
proved easy to provide adequate protection for such critical habitats.
India has in place most of the available legislative mechanisms for promoting an
ecosystem approach to the Bay of Bengal (to the extent possible within existing
international law), and to cooperating with the other countries. The main problem
is likely to be a lack of ability to deliver in implementation due in part to its
federal character, and the sheer scope of the implementation problem.
Indonesia
There can be little doubt that the overall governmental structure of Indonesia involves
the most complex distribution of powers and authority of all the countries in the
BOBLME region, and it is still in the process of evolution.
It is proposed to start with the basic legislation concerning the EEZ, which is Act no 5
of 1983 on the Indonesian Exclusive Economic Zone (18 October 1983).
This Law serves the same basic function as do most of these types of law in setting out
the claim to the EEZ in international law, however, whereas most of the laws of other
countries in the region contain a detailed rule making power, the Indonesian law merely
has a very general provision which states in Art 20 that "other statutory regulations
may be adopted to further the provisions of this Act." This could, of course, be
interpreted as a sufficient basis for the enactment of detailed regulations given that the
law, like the Indonesian legal system, follows more of a civil law approach than most of
the other countries in the region, which are mainly common law based, and where a
more detailed guide for the making of subordinate legislation would be expected.
It is, however, an important law in its own right, not merely because it deals with the
EEZ, but because it builds on Indonesia's important claim to archipelagic waters.
Thus, while this law, like the others, applies in the EEZ, in some respects, this could be
33
much further seaward than 200 miles from the land (or to be precise, the baselines from
which the zone is to be measured)
The Law sets out the claim to sovereign rights in the EEZ with respect to exploration,
exploitation, management and conservation of the living and non living resources on
the seabed and subsoil as well as the water above it, as well as the claims to jurisdiction
in accordance with the 1982 UN Convention. Unusually, it acknowledges that there are
both rights and duties derived from the 1982 Convention.
While the law lacks a detailed rule making power, it does nonetheless (in article 5) state
that activities within the zone may only be conducted with the permission of the
Government of the Republic.
Of particular note is article 8, which sets out a broad duty to "take steps towards
preventing, minimizing, controlling and surmounting the pollution of the environment",
while paragraph 2 requires that any discharge of waste may be effected only with the
permission of the government of the Republic.
Articles 9 and 10 sets out a broad indemnity provision to the effect that anyone who
conducts any activity in violation of any provision of the statutory regulations of
Indonesia in relation to artificial islands installations and structures, or in relation to
marine scientific research shall be held fully responsible and liable to a reasonable
amount of rehabilitation costs. Article 11 sets out an additional obligation in respect of
pollution of the marine environment and/or damage to the natural resources shall be
held fully responsible and shall apply a reasonable amount of the rehabilitation costs.
This law needs to be seen in conjunction with the Fisheries Act, 1985
The Fisheries Act sets up a licensing system for commercial fishing. The Act does not
permit foreign fishing except where there is a surplus which the Indonesians do not
34
have the authority to harvest. For that, a permit is needed, and there is an agreement
between Indonesia and the country of the nationality of the owner.
The law does not define an Indonesian fishing vessel which might give rise to problems
of interpretation, especially if chartering of vessels is permitted as it once was. There
are now quite a few foreign vessels registered as Indonesian but which are not
Indonesian controlled.
Environmental laws
The original framework for environmental legislation was located in the Environmental
Management Act No. 4 of 1982, which was a follow on the from the 1972 Stockholm
Conference. This Act has since been replaced by Act no 23 of 1997 concerning the
Management of the Living Environment, known as the Environmental Management
Act, 1997. However, implementing laws passed under the earlier Act have remained in
force. Further, the Act, and the implementing laws need to be seen in the context of
certain broad state policies Garis-garis Besar Haluan Negara (GBHN), which are
guidelines for state policy passed every five years.
Article 3 of the 1997 Act states that its basic objective and target is: "environmental
management consistent with national responsibility and sustainable development", and
"exploitation within the framework of the holistic development of the Indonesian
individual and community in its entirety".
Chapter III refers to the right of every person to a healthy environment and the
obligation to preserve environmental functions and combat environmental pollution.
Chapter IV provides that natural resources are controlled by the state, and are to be
developed by the government for the greatest possible public good. It is not completely
clear on whom the prime responsibility for implementation rests. The law also
provides for delegation to provincial authorities, though further subordinate legislation
and Presidential decisions will be needed for that to become effective.
35
Chapter V prohibits every business or activity from disregarding environmental quality
standards and criteria, and environmental impact analysis is required in certain
circumstances, though regulations will elaborate on these.
One aspect that is worth highlighting is chapter VII which provides for environmental
dispute settlement. According to Tan4:
"Chapter VII provides for environmental dispute settlement either through
judicial or extra-judicial means. Judicial settlement anticipates the payment of
compensation and the issuance of orders to carry out certain actions. Two very
significant features of the 1997 EMA appear in this Chapter - first, strict liability
is prescribed for violations involving hazardous and toxic materials which cause
significant impact to the environment. Second, following recent decisions in the
courts, community and environmental organisations are explicitly given standing
to bring class actions in court and/or to report on environmental violations."
The law also provides for investigations by national police investigators (Ch VIII)
while Ch IX sets out penalties for environmental violations. 5
4 APCEL report: Preliminary Assessment Of Indonesia's Environmental Law Alan K.J. Tan, Faculty of
Law National University of Singapore.
5 Intentional offences - maximum imprisonment of 10 years and fine of 500 million rupiah; if death or
serious injury is caused, maximum imprisonment of 15 years and fine of 750 million rupiah.
a. Negligent offences - maximum imprisonment of 3 years and fine of 100 million rupiah;
if death or serious injury is caused, maximum imprisonment of 5 years and fine of 150
million rupiah.
b. Intentional release of toxic or hazardous materials into the environment - maximum
imprisonment of 6 years and fine of 300 million rupiah; if death or serious injury
caused, maximum imprisonment of 9 years and fine of 450 million rupiah.
c. Negligent release of toxic or hazardous materials - maximum imprisonment term of 3
years and fine of 100 million rupiah; if death or serious injury caused, maximum
imprisonment of 5 years and fine of 150 million rupiah.
3. Fines are increased by a third if the offender is a company or a body corporate. More
importantly, penalties are also visited upon the individuals who gave the order to commit the
violation or who acted as leaders in the commission of the violation. Thus, individuals will not
be able to hide behind the facade of a company committing an environmental offence.
Other penalties - "seizure of profits arising from criminal acts"; "closure of all/part of business";
"reparation of consequences of action"; "carrying out of what was wrongfully neglected"; "destroying
what was wrongfully neglected" and/or "placing the business under administration for a maximum of
three years".
36
As already mentioned, there is considerable uncertainty as to who has the competence
to enforce the various laws. According to Tan6, competence appears to be distributed
among the following bodies:
1.
The Office of the State Minister for the Environment;
2.
BAPEDAL;
3.
Other national sectoral agencies, especially the Ministry of Forestry and
Industry, the Ministry of Trade and Industry, the Ministry of Energy and Mining, the
Ministry of Agriculture and the Ministry of Home Affairs;
4.
The local arms of national agencies; provincial and municipal governments;
and local bodies like the police, the army and the prosecutors.
Other problems relate to the enforcement of penalties - several sectoral laws like
Government Regulation No. 20 on Water Pollution Control, administered by provincial
governments, have provisions which are cross-referenced to criminal and
administrative sanctions under the 1982 EMA. There are also provisions in the Industry
and Agriculture Acts which are similarly cross-referenced. There is uncertainty as to
which ministry/agency/provincial authority is to administer these penalties, and in what
manner.
In addition, the relationship between civil, criminal and administrative remedies is
uncertain.
However, Tan reports some success in resolving jurisdictional overlaps in relation to
the environmental impact assessment process.
In sum, the environmental law itself appears to be quite strong in its provisions. The
problem is much more to do with implementation and delegation through the many
layers of governance in Indonesia.
Critical habitats
Mangroves
Angell (p.47) makes the following comment about mangrove habitat conservation.
Seventeen national level agencies have some authority in dealing with mangrove
habitat conservation (Anonymous 2000b). The key agencies are the Ministries of
Forestry, Marine and Fisheries, Agriculture, Environment and Home Affairs, of
6 APCEL report, footnote 2 above
37
which the key Ministry is Forestry. These ministries operate at the national level,
but under decentralization, responsibility for management of the coastal zone falls
to local government. However, the role of provincial and regency governments in
managing coastal and marine resources is not yet well established. Furthermore,
community participation needs to be strengthened (Purwako et al. MS) .
Angell also reports that there is considerable damage being done to mangroves by
shrimp farming operations despite the need for permits to undertake the activity. He
also reports on damage to coral reefs as a result of the use of poisons in certain
localities. However, in North Sumatra, he reports that traditional fishers respect the
reefs and do not use obnoxious methods. He states (p 43): "Reefs within 4 km of the
coast fall under the jurisdiction of regency and provincial governments, which
currently lack the capability to implement conservation measures and enforce
regulations."
Customary laws
Adat law
Although its importance may have eroded over time and varies greatly from one place
to another, adat law or customary law (which refers to unwritten laws, norms rules,
traditions and usages of a traditional community) is still very much alive in many
islands of Indonesia. Whereas it is likely to be more significant in sparsely populated
and isolated areas, there is no doubt that adat law still plays an important role in the
management of near shore fisheries in many coastal areas of Indonesia. Lawmakers
have allowed for regions to recognize adat law with regard to the exploration,
exploitation and conservation of local fisheries. Customary law is generally recognized
insofar as it does not conflict with the provisions of the Constitution or any other
written law7.
7 In this regard, it should be noted that provisions of article 36 (3) specify that adat law should not apply
to endangered species.
38
Overall assessment. The specific laws applicable in Indonesia are quite complex in
their operation and need to be seen in the context of the role of the central and
regional authorities which does not make for a clear cut exercise of responsibility.
There is also the role of adat law, which is not entirely clear. The major defect
does not appear to be the lack of basic laws, rather with their implementation,
including the introduction of subordinate legislation and policy instruments to
assist in making them effective. As regards fisheries, there is a need for Indonesia
to introduce legislation to control fishing on the high seas, as well as enabling the
introduction of modern management concepts, including in particular, the
precautionary approach and an ecosystem approach. In particular, this should
enable it to give effect to the UNFSA, Compliance Agreement, and the IPOA-IUU.
There also appears to be a weakness, most probably of enforcement rather than a
lack of applicable laws, with respect to critical habitats.
The environmental laws themselves contain the relevant environmental
perspectives that you would wish to find in a modern law. Thus, the problem
appears to be one more of distribution of competences and weak enforcement
rather than lack of applicable laws.
Malaysia
Malaysia is a parliamentary democracy with its legal system based on the English
common law. It has a federal system, with all the complications that usually implies.
For example, there are 13 States involved in regulating turtles.
The starting point is the Exclusive Economic Zone Act 1984 no 311. It does not include
the territorial sea, as do virtually all of the other laws of the region. In Malaysia, that is
dealt with in the Emergency (Essential Powers) Ordinance No 7/69.
The law is also more comprehensive than most of the other basic EEZ laws of the
BOBLME countries. It has many definitions, including "dumping", "Malaysian
fisheries waters" ("all waters comprising the internal waters, the territorial sea, and the
exclusive economic zone of Malaysia in which Malaysia exercises sovereign and
exclusive rights over fisheries") "mixture containing oil", "oil", "pollutant" and
"waste".
39
The law sets out the basic elements of Malaysia' assertion of sovereign rights and
jurisdiction in accordance with the 1982 UN Convention, as well as, unusually,
referring both to the rights as well as the duties provided for by international law.
The law is also stated to be in addition to the continental shelf legislation of Malaysia.
The law prohibits any activity on the continental self or in the EEZ except where
authorized by any applicable law.
It has a short Part (III) on fisheries, which includes the EEZ as part of Malaysian
fisheries waters, and gives responsibility to the Minister charged with responsibility for
fisheries to be responsible also for fisheries in the EEZ.
Part IV deals with the protection and preservation of the marine environment. Section 9
states: "Malaysia has the sovereign right to exploit her natural resources in the (EEZ)
pursuant to her environmental policies and in accordance with her duty to protect and
preserve the marine environment in the zone."
Section 10 places a heavy penalty (a fine up to one million ringitt) if any oil, mixture
containing oil, or pollutant is discharged or escapes into the EEZ from any vessel, land
based source, installation, device or aircraft from or through the atmosphere by
dumping. There is also a duty to report any such discharge to the Director General.
The law sets out a number of other important powers relating to the EEZ: Measures
relating to a maritime casualty (section 13), directions and action to remove disperse
destroy or mitigate damage, (section 14), the power to detain or sell a vessel (section
15) Part V deals with marine scientific research in the EEZ. Part VI deals with artificial
islands installations and structures, while Part VII deals with submarine cables and
pipelines. In Parts VIII and IX, there are extensive provisions dealing respectively with
enforcement and offences, penalties, legal proceedings and compensation. In this
instance, compensation refers to compensation by the offender.
40
The law also sets out a regulation making power which focuses on marine scientific
research, measures to protect and preserve the marine environment of the EEZ,
including conditions to be complied with by foreign vessels before entering any port or
in the internal waters of Malaysia, regulating artificial islands, installations and
structures, regulating the exploration and exploitation of the EEZ from the water,
currents and winds and for other economic purposes.
It will be noted that the law follows closely here the wording of the 1982 UN
Convention in focusing on economic purposes. Also, the regulation making power does
not extend to fisheries, which is covered in the separate fisheries law.
Overall, this law is comprehensive and has several provisions which could be utilized
in part to promote ecosystem objectives in the EEZ, even though it does not use that
language.
The Fisheries Act, 1985 is a comprehensive law on fisheries, which, at the time,
provided a very solid basis for managing the fisheries resources in the Malaysian
fisheries waters. The definition of such waters has avoided the restrictive zonal
approach of many other countries by dealing only with the EEZ as regards fisheries.
Here, it is recognized that fish need to be managed throughout their range, at least as
regards the internal waters the territorial sea and the EEZ. It was, in other words, a
precursor of LME thinking at the national level.
The Act has extensive provisions on interpretation (a typical common law Act in this
respect). It sets out the responsibility of the Minister, and who are fisheries officers. It
also sets out the requirement for fisheries plans, and has a part on General licensing
(Part IV) which is very comprehensive, containing, inter alia, provisions on fishing
without a license, applications for a licence in respect of a new vessel, conditions which
may be imposed as well as the power to make directions, licenses in respect of local
fishing vessels, fishing stakes, fishing appliances, fish aggregation devices or marine
41
culture systems, as well as powers to refuse to grant a license or to suspend one. It has a
part on foreign fishing vessels, including the innocent passage of foreign fishing vessels
through Malaysian fisheries waters.
The Act provides for licences for local fishing and for permits for foreign fishing. It
also has a detailed part on offences, including fishing with explosives or poisons,
protection of aquatic mammals or turtles in Malaysian fisheries waters, the forfeiture of
vessels in certain circumstances, and the power of a court to cancel a licence or permit
in certain circumstances.
The Act has a Part (VII) devoted to turtles and inland fisheries with provision for the
State authority and the Minister to make rules concerning turtles and inland fisheries.
Part VIII deals with aquaculture and the control of live fish, and while far sighted for its
time, this part probably needs to be revised to incorporate a more elaborated regime for
aquaculture, especially in view of its increased importance in regard to the protection of
mangroves is concerned.
The Act also has an elaborate part on marine parks and marine reserves, with the
capacity to apply strict controls over activities in such areas, the absolute prohibition of
certain weapons, and a power to make regulations. It also provides for the setting up of
a National Advisory Council for marine parks and marine reserves.
Part X deals with enforcement, with provisions on the powers of authorized officers,
powers of entry and arrest, powers of investigation, seizure and forfeiture of a vessel,
sale of perishable fish, obstruction of an officer, etc
Part XI contains general provisions amongst which is an extensive power to make
regulations.
42
A number of regulations has been issued in respect of fisheries. The main ones are set
out in the footnote below.8
In an article presented to an IUCN meeting on the subject, the following useful
information has been provided:9
Though parks and reserve were established as early as in 1925 (Jasmi 1996), they
confined only to main land areas. It was only in 1983, steps were taken to initiate
for the conservation of the natural marine habitats in the form of marine parks
and marine reserve (Ch'ng 1990) surrounding selected offshore islands. Initial
MPA establishment was made in 1983, where water areas of 8 km surrounding
Pulau Redang, Terengganu was gazetted as Fisheries Protected Area. In 1985,
water areas of 3 km surrounding 21 islands in Terengganu (including Pulau
Redang), Kedah, Pahang and Johor were also gazetted as Fisheries Protected
Area. These gazettements were made under the Fisheries Act of 1963.
The Fisheries Act of 1963 was later replaced by the Fisheries Act of 1985 with the
objective, among others, to cater for the rapid expansion of the fishing industries
and for the management, protection and conservation of marine habitats and
other living marine resources such as corals, marine mammals and turtles. Under
the Fisheries Act of 1985, a provision for the establishment of marine park or
marine reserve was made under Part IX Marine Parks And Marine Reserve
(Sections 41 45).
8 Various regulations have been issued under the Fisheries Act. The ones applicable to maritime fisheries
are:
* The Fisheries Ordinance (Sabah) 1963
* Fisheries (Maritime) (Sarawak) Regulations 1976
* Fisheries (Maritime) Regulations 1967
* Fisheries (Maritime) (Licensing of local fishing vessels) Regulation 1985
* Fisheries (Prohibition of Import etc of Fish) Regulations 1990
* Fisheries (Prohibition of Method of Fishing) regulations 1980 & Fisheries (Prohibition of Method of
Fishing Amendment) regulations 1990
* Fisheries (Rantau Abang Prohibited Area) Regulations 1991
* Fisheries Prohibition Area Regulations 1994 & Fisheries (Prohibited Areas (Amendment) Regulation
1998
* Fisheries (Closed season to catch Kerapu Fry) Regulations 1996 & Fisheries (Prohibition of Method of
Fishing for Kerapu Fry) Regulations 1996
* Fisheries (Protection of Endangered Species) Regulations 1999
9 from the Proceedings of IUCN/WCPA-EA-4 Taipei Conference
March 18-23, 2002, Taipei, Taiwan Marine parks Malaysia: Current Status and Prospect
Of Marine Protected Areas in Peninsular Malaysia Najib Ramli, Azahari Ahmad, Khalil Karim
Marine Parks Branch, Department of Fisheries Malaysia
43
Though, the Department of Fisheries has been established for more than 100
years, the development of the MPA or marine parks in accordance to IUCN/CAP
categories, is still in its infancy stage.
Coral rich areas as well as fisheries protected areas are only gazetted in 1994 as
Marine Parks Malaysia under the Fisheries Act of 1985. In October 1994, water
areas of two nautical miles surrounding 38 islands in Kedah, Terengganu,
Pahang, Johor and Federal Territory of Labuan were gazetted as Marine Parks
Malaysia. In 1998, two more islands in Terengganu were added to the list.
In 1991, water in front of Rantau Abang, Terengganu was gazetted as a Fisheries
Protected Area which aim to protect turtles from accidental catch due to fishing
activities in the area. Three islands in Sarawak; Tanjung Tuan and Pulau Besar,
Melaka were also gazetted as Fisheries Protected Area in 1994 and 1998
consequently. In Malaysia's contexts, Marine Parks Malaysia and Fisheries
Protected Area is an area of the sea zoned as a sanctuary for the protection and
conservation of 1 The World Conservation Union/World Commission on
Protected Areas marine eco-systems especially coral reef and its associated fauna
and flora.....
IV. OBJECTIVES OF THE MARINE PARKS
The establishment of marine parks manifest the Department of Fisheries
aspiration and contribution to the very topical and contemporary subjects of
protection and conservation of marine resources, habitats and as one of the
management tools towards sustainable fisheries. As protected areas, they are able
to contribute to the objective through conserving critical habitats and
biodiversity, prevention of over fishing, maintaining habitat continuity and
supporting the maintenance of essential ecological processes for multiple use.
Marine Parks Malaysia benefits not only the direct users, such as fishers. It also
gives the opportunity to a wide range of users (stakeholders) such as the
assemblies of nature-lovers, the tourism operators, academicians, scientists and
people from all walks of life. The parks also provide platforms for the sustainable
development of the tourism industry. As a whole, the objective of Marine Parks
Malaysia are as follow;
1. To conserve and protect biological diversity of marine community and its
habitats;
2. To upgrade and conserve the natural habitats of endangered species of aquatic
life;
3. To establish specific management zone for the conservation of aquatic flora
and fauna; and
4. to establish zones of recreational use consistent with the carrying capacity of
the area.
44
There is currently under consideration a High Seas Fisheries Bill which it is believed
will give domestic legal effect to the 1995 UN Fish Stocks Agreement and the 1993
FAO Compliance Agreement.
Environmental legislation
The basic law is the Environmental Quality Act 1974, as amended. It regulates the
prevention, abatement, control of pollution and the enhancement of the environment. It
is the legislation relied on most to deter marine pollution in Malaysia The Department
of Environment administers the Environmental Quality Act.
The Act is very comprehensive and has detailed definitions typical of a law drafted in
the common law style.10
The Act prohibits the discharge of oil and wastes into Malaysian waters (defined as
including the territorial waters) unless licensed by the Department of Environment or
within acceptable conditions of discharge. It has provisions dealing with pollution of
the atmosphere, pollution of inland waters, and pollution into the territorial sea. There
is also a broad regulation making power.
The Act also appoints a Director General and establishes the Environmental Quality
Council.
The Act in section 18 permits the Minister to prescribe premises the occupation or use
of which would be an offence unless there is a license issued in respect of the premises
10 Thus section 2 has definitions of: aircraft, beneficial use, committee, computer, control equipment,
Council, director, General, document, element, environment, environmental audit, environmental
management system ,environmental risk, environmentally hazardous substances, fund, goods, industrial
plant, inland waters, local authority, Malaysian waters, Minister, Mixture containing oil, monitoring
programme, occupier, oil, owner, pollutants, pollution, practicable, premises, prescribed, prescribed
conveyance, prescribed premises, prescribed product, scheduled wastes, segment, ship, soil, trade, transit,
vehicle and waste.
45
in question. In addition, the Act imposes a requirement for the approval of plans to
carry out any work or building erection or alteration.
The Act gives, in section 21, the power to specify conditions of emissions, discharges
etc, likewise restrictions on the pollution of the atmosphere are imposed (section 22).
Noise pollution and pollution of the soil is also controlled, as is pollution of inland
waters (section 25). The latter is relevant to the control of land based pollution. It
prohibits anyone who is not licensed to do so, from emitting, discharging, depositing
any environmentally hazardous substances pollutants or wastes into any inland waters
in contravention of any acceptable conditions specified under the Act. A penalty is
imposed for breach of this provision, namely, a fine of up to one hundred thousand
ringitt, or to imprisonment or to both, as well as a fine not exceeding one thousand
ringitt for continuing an offence after notice to cease the activity in question has been
served.
Section 27 prohibits discharges into Malaysian waters of any oil mixture containing oil
n contravention of any acceptable conditions specified under the Act, though it should
be noted that this applies only to the territorial sea.
There are other detailed provisions, including, for example, a prohibition against
burning, and the maintenance of equipment. One provision that could well have a
bearing on controlling land based pollution is section 33, which gives the Director
General the power to prohibit licensed discharges where it appears that, while each
person is complying with the conditions of a licence, nonetheless the aggregate of the
wastes discharged into a segment or element of the environment is such as to cause a
worsening of that segment or that element such as "to affect the health, welfare, or
safety of human beings, or to threaten the existence of any animals, birds, wildlife, fish
or other aquatic life".
The Act also has detailed provisions for environmental impact assessments in respect of
any activities that may have a significant environmental impact. (section 34A)
46
There are also controls on disposal of scheduled wastes except with the prior written
approval of the Director General.
According to Teoh, "The generation, storage and movement of hazardous waste
into and out of Malaysia are covered in Part IVA of the Environmental Quality
Act. It is necessary to obtain prior written approval of the Director General of
Environmental Quality for the storage, movement and import and export of
hazardous waste. These provisions give effect to the Basel Convention. The
import and export of the hazardous wastes are covered by Orders under the
Customs Act, 1967"11
The Act also provides for a general regulation making power.
Overall, the Act is very comprehensive in its subject matter, however, while it contains
provisions which can be used to control land based pollution, the Act may have
limitations when it comes to controlling siting of potential sources of pollution.
The Exclusive Economic Zone Act 1984 prohibits the discharge or escape of oil, oil
mixture and pollutants into the exclusive economic zone 7 Both are enforced by the
Department of Environment 8
Critical habitats
While the conversion of mangroves to shrimp farms has been controversial Angell
depicts some success in certain localities with respect to the management of mangroves
see p.30.
Angell (p.47) also reports:
Malaysia has worked with FAO to develop an integrated regulatory system for
aquaculture in the short to medium term without attempting to enact a new
11 Marine Pollution in Malaysia Philip Teoh
47
comprehensive aquaculture act. This involves enacting new regulations under the
existing Fisheries Act, introducing a voluntary Code of Responsible Aquaculture
Practices for inland cage culture and shrimp farming, supported by incentives,
and strengthening institutional structures to ensure the ongoing formulation and
monitoring of aquaculture policy at federal and state levels (FAO 1997).
Traditional ownership and Customary use systems
Very little evidence of these has been found so far. However, it is more likely that there
is a lack of available information on this than that it is non existent.
Overall summary: despite being a federal system, with the jurisdictional
complications which such a system implies, Malaysia has some quite advanced
laws in the context of the region. However, it still lacks a law to deal with high seas
fishing, though it is understood that one is in an advanced stage of preparation.
Once such a law is in place it may be easier for Malaysia to apply certain concepts
found in that agreement, but that will depend on how it is drafted in its final form,
in particular whether it brings in modern management concepts such as the
precautionary approach, or the ecosystem approach. Likewise, the capacity of
Malaysia to enforce its laws, is in general better than is the case for most of the
countries of the BOBLME region. However, it is probably in the area of land
based sources of marine pollution that Malaysian legislation is at its weakest.
There is also some evidence of certain critical habitats being protected well, at
least better than for most countries in the BOBLME.
Maldives
Maldives is a nation of small islands located in the central Indian Ocean. The
archipelago consists of about 1190 tiny coral islands of which 202 are currently
inhabited. These islands are found in 26 natural atolls, and are grouped into 20
administrative areas.
Maldives is set in an area of 90,000 square kilometers and is located about 600
kilometers off south west Sri Lanka, stretching along 73° East longitude from about 8°
North to 1° South. The country has a total land area of about 298 km2 of which less
than 10 percent is used for agriculture (GOPA, 1992). Agricultural activity is limited in
48
Maldives because of the limited land-based resources. Maldives is therefore quite
different from other countries of the BOBLME region.
The potential for developing a modern economy in Maldives largely rests on two
economic sectors fishing and tourism. Given the scarce terrestrial resources of the
country, fishing has always been one of its main economic activities.
The Maritime Zones of Maldives Act no 6/96 sets out the basis for Maldives to exercise
sovereignty, sovereign rights and jurisdiction over its maritime zones. This Act is very
short. It sets out the basis for the archipelagic claim by Maldives, which is defined by
reference to geographical coordinates set out in the Annex to the Act. It also sets out the
basis for the claim to the territorial sea, the contiguous zone and the exclusive economic
zone of Maldives.
Section 9 sets out the rights of Maldives in the EEZ. It has "sovereign rights for the
purpose of exploring and exploiting, conserving and managing the natural resources
contained therein, whether living or non living, and with regard to other activities for
purposes of the economic exploitation of the zone. Economic exploitation of the natural
resources found in the zone by persons other than nationals of Maldives or the conduct
of scientific research within the zone as well as the construction, operation and use of
any artificial island installation or structure within the zone for any of the foregoing
purposes shall be subject to authorization from the Government of Maldives."
The law also sets out stringent controls over passage though the waters. While it gives a
right of archipelagic sea lanes passage through the sea lanes designated by the
government from among international navigation channels, and in accordance with
regulations made under the Act (section 12), it prohibits passage though the EEZ by a
foreign vessel "except with authorization from the Government of Maldives in
accordance with the laws of Maldives."
49
Section 16 also states: "in addition to matters provided in this Act, Maldives shall enjoy
in relation to its maritime zones all other rights and jurisdiction states enjoy under
international law as regards other maritime zones." This is important as section 9
quoted above makes no reference to the exercise of jurisdiction with respect to marine
pollution in accordance with the 1982 UN Convention. This clause could provide the
basis for the exercise of such jurisdiction should Maldives choose to do so. That said, a
fully fledged law with respect to vessel sourced and land based pollution would be a
preferred option.
Finally, section 17 states that "The Government of Maldives has the jurisdiction to
adopt regulations in respect of the maritime zones of Maldives and airspace
thereabove."
The main law regarding fisheries is the Fisheries Law of the Maldives 1987 No 5/87. It
is believed that this law may be undergoing a revision. The Fisheries Law, which is
unusually short, provides a very basic framework for the control of fishing in the EEZ
of Maldives. However, there is a note to the definition of "fisheries" which says:
"'seas' in this law means the high seas and the waters inside the atolls and includes
lagoons, shallow water areas and reefs".(section 2)
Section 3 places an obligation ("shall") on the Ministry of Fisheries "to oversee all
fisheries activities in the country. It shall be the obligation of the Ministry of Fisheries
to explore the possibilities for the development of fisheries, to carry out the research
needed for such development and to develop fisheries."
Section 5 requires commercial fishing by foreigners, including jointly with Maldivians
to be undertaken only with the permission of the Ministry of Trade and Industries.
The law also provides for inspection of fishing vessels (section 6 (iii)), as well as the
requirement of prior permission of the Ministry of Fisheries before entering the EEZ if
not already licensed under this law.(section 7)
50
Section 8 deals with the cancellation of licences. Section 10 gives the Minister the
power to prohibit for a specified period the fishing, capturing or taking of certain
species in special need of conservation, or the right to "establish special sanctuaries
from where such species may not be fished, captured or taken."
Section 11 gives the Ministry of Defence and National Security the right to stop nay
vessel suspected of contravening the law, and to check its contents. It may also
apprehend any vessel and objects used in carrying out an offence, and the right to arrest
anyone suspected of committing an offence.
Section 12 provides a very general power for the Ministry to have in its care any vessel
apprehended under section 11. A number of penalties are imposed.
While it is stated to apply to the high seas, the law does not address high seas issues
covered by the 1995 UN Fish Stocks Agreement or by the FAO Compliance
Agreement, or, for that matter, issues covered Code of Conduct for Responsible
Fisheries or in the IPOA-IUU. It does not introduce into Maldives the latest
management concepts such as the precautionary approach or ecosystem considerations
in other words, post UNCED considerations.
The Environment Protection and Preservation Act No 4/93 is also quite short, and it
sets certain basic controls relating to environmental protection. The introduction to the
law states: "The natural environment and its resources are a natural heritage that
needs to be protected and preserved for the benefit of future generations. The
protection and preservation of the countries land and water resources, flora and fauna
are important for the sustainable development of the country"
Section 2 permits the concerned governmental authorities to provide the necessary
guidelines and advice on environmental protection in accordance with the prevailing
51
conditions of the country. All concerned parties shall take due consideration of the
guidelines provided by the government authorities.
Section 4 gives the Ministry of Planning, Human Resources and Environment
responsibility for identifying protected areas and natural reserves and for drawing up of
necessary rules for their protection and preservation. Also, any one wishing to establish
such an area shall register that area with the Ministry and abide by the rules and
regulations laid down by the Ministry.
Section 5 sets out the requirement of having a prior environment impact assessment
"before implementing any developing project that may have a potential impact on the
environment."
Section 6 gives the Ministry the power to terminate without compensation any project
that has "any undesirable impact on the environment."
There are also provisions (section 7) dealing with waste disposal, oil and poisonous
substances, which are not to be disposed of in the Maldives. However, if their disposal
is "absolutely necessary, it may be disposed of only within areas designated for that
purpose".
There is also (section 8) a ban on disposal of hazardous/toxic or nuclear wastes
anywhere in the country, while movement of such wastes through the "territory" of the
Maldives requires permission obtained three months in advance.
The Act (section 9) imposes penalties, which in the case of minor offences, can range
from five Rufiyaa to five hundred Rufiyaa. For major offences, a fine of one hundred
million Rufiyaa may be imposed, which shall be levied by the Ministry of Planning,
Human Resources and Environment.
52
Finally, there is a definition of environment as meaning "all living things that
surrounds and effects the lives of human beings."
Around the atolls, there have been placed protection zones for tourism purposes i.e. to
maintain the state of the fragile atolls. In fact, the level of protection of the fragile
habitats is high in view of the importance of tourism to the economy, and the role that
the reefs and atolls play in that activity.
The law, while brief, does nonetheless provide the basis for the imposition of certain
environmental controls. It is also a basis, in section 4, for controlling and protecting
critical habitats. However, like the fisheries law, it needs to bring into the national legal
system itself modern environmental concepts that would support a more sustained
ecosystem approach towards environmental management.
Land based pollution
Kaly (p.101) reports a significant amount of land based pollution. The only provision
that permits this to be dealt with is pursuant to section 7 of the Environment Protection
and Preservation Act No 4/93.
Kaly has identified significant disposal problems for domestic pollution. Also tourist
hotels have had to install various facilities to dispose of wastes.
Overall summary. The legislative regime of the Maldives is very terse and brief.
However, it appears that the government uses quite effectively what powers it has.
It is very preoccupied with protecting the tourism industry. It has not, however,
legislated to give effect to the 1995 UN Fish Stocks Agreement, the FAO
Compliance Agreement, or the IPOA-IUU which would enable it to deal with any
of its vessels fishing on the high seas. Further, it has remained aloof from joining
the IOTC. The legislation overall does not incorporate directly modern
environmental principles such as the precautionary approach, or the promotion of
ecosystem approaches, though much of its actions are geared towards those
objectives even if not explicitly stated in those terms.
53
It has been reasonably successful in protecting fragile habitats in recent years,
though there are still significant pollution problems reported by Kaly.
No evidence has been found so far of traditional ownership and customary rights.
Myanmar
Myanmar is governed by the State Peace and Development Council, previously known
as the State Law and Order Restoration Council. The hierarchy of legislation in
Myanmar is as follows:
1.
The Constitution;
2.
Laws issued by the SPDC (exercising legislative functions);
3.
Decrees or subsidiary legislation issued by Ministers.
The Territorial Sea and Maritime Zones law 1977 is the basic law concerning the
maritime zones of Myanmar. It sets out (Chapter II) the basis on which Myanmar
exercises sovereignty over the territorial sea (of twelve miles from the baselines set out
in the annex to the Law), jurisdiction ("control") over the contiguous zone beyond and
adjacent to the territorial sea up to 24 miles from the baselines (chapter III), sovereign
rights with respect to the continental shelf up to 200 nautical miles or to the outer edge
of the continental margin, exclusive rights and jurisdiction for the construction,
maintenance or operation of artificial islands, offshore terminals, and other structures
and devices necessary for the exploration and exploitation of its natural resources, both
living and non living, for the convenience of shipping and for any other purpose
(significantly not limited to any other "economic" purpose)(Chapter IV)
The law also sets out (in Chapter V) the assertion by Myanmar of sovereign rights to its
exclusive economic zone, which mirrors the language used in respect of the continental
shelf. Like many of the laws of the region, it refers to only the rights enjoyed by the
coastal state in that zone, and makes no reference to the duties of the coastal State under
the 1982 UN Convention.
54
Chapter VI sets out offences and penalties, which extends to any person who
contravenes or attempts to contravene or abets the contravention of any provision of
this Law or of any rule made there under shall be punishable with imprisonment which
may extend up to ten years, or with fine, or with both. It also provides for confiscation
of vessels (other than warships) which have contravened the law. It should be noted
that, in providing for imprisonment of foreigners for violations of fisheries laws and
regulations, the law goes beyond the provisions of article 73.3 1982 UN convention.
Chapter VII provides for the promulgation of regulations. The baselines from which the
territorial sea is measured are controversial in some respects as certain baselines are not
accepted by all countries in view of their perceived considerable length.
Myanmar has two principal laws governing fisheries. The first was brought into force
in 1989, and is entitled Law relating to the Fishing Rights of Foreign Vessels.
It has provisions concerning definitions, including a definition of Myanmar fisheries
waters which means "the exclusive economic zone, territorial sea, inshore and all
inland brackish waters and fresh waters".12 It has chapters on payment of duties and
fees, duties and rights of an entrepreneur, duties and powers of the Director-General,
Duties and powers of the Inspector, Duties of the Master, invalidity of a licence,
appeals, prohibitions, offences and penalties (which includes the possibility of
imprisonment for foreign fishers). It does not have a regulation making power, though
there is a vaguely worded provision (section 47 c), which authorizes the Minister to
make or issue "any other order or directive that appears to be reasonably suitable in
respect of the fishery."
12 Other definitions are: Minister, Ministry, Department, Director-General, Inspector, Baselines,
Territorial sea, EEZ, fishing vessel, foreign fishing vessel (a vessel belonging to a foreigner and which is
registered in a foreign country) master, person, entrepreneur, fish, fishery, fishing, fishing implement,
processing, licence, licence fee, and fresh fish duty.
55
The Marine Fisheries Law 1990 is an extensive law dealing with Myanma fishing.
Chapter I sets out the title and definitions used under the law
Definitions are provided for the following: Minister, Director General, Officer-in-
charge of the Department, inspector, Myanma Marine Fisheries Waters, Fish, Fishery ,
Fishing, Inshore Fishery, Offshore Fishery, Fishing Implement, Fishing Ground,
Fishing Vessel, Local Fishing Vessel, Foreign Fishing Vessel, Master of the Vessel,
Marine Products, Site for Collecting Marine Products, Fisherman Licence, Licence
Holder, Licence Fee, Citizen, Foreigner.
The other chapters provide for: Chapter II, application for licence. Chapter III, payment
of duties and fees, Chapter IV registration, Chapter V, determination of fishing ground,
Chapter VI, duties and rights of a licence holder, Chapter VII, powers of the department
and the director general, Chapter VIII, duties and powers of the inspector, Chapter IX,
duties of the master of the vessel, Chapter X, appeals, Chapter XI, prohibitions, Chapter
XII, offences and penalties, Chapter XIII miscellaneous. It is not necessary to analyze
this law in detail. It is well drafted for the most part and comprehensive. It provides a
solid legal basis for controlling the fishing activities in the Myanma fisheries waters.
One of its provisions is particularly relevant to the subject of this study: section 36.
No person shall dispose of from aboard the fishing vessel living creatures or any
material to cause pollution of the water media or to harass the fishes and other marine
organisms.
In the national consultant's report on Myanmar, the following information is reported:
Prohibition of fishing gear
Under the "Law Relating To the Fishing Rights Of Foreign Fishing Vessels" and
"Myanmar Marine Fisheries Law" and related regulations, fishing gear that is
destructive to the environment and the fisheries resources are banned. These
gears include pair trawl fishing, electric fishing, fishing using poisons, chemicals
and explosives, push net, Purse seine net less than 1 inch mesh size, for trawl net
cod-end mesh size less than 2 inches, drift net less than 4 inches mesh size,
trammel gill net for less than 1.5 inches mesh size, etc.
Environmental laws
56
An early law which controlled effluent discharges from factories is the Factory Act
1951
Likewise there is the Protection of Wild life and Wild Plants and Conservation of
Natural Areas Law, though it is not clear what effect this law has had.
Myanmar has no detailed framework laws or comprehensive action plans concerning
environmental management. However, with the formation of the National Commission
for Environmental Affairs (NCEA) in 1990, a National Environmental Policy (NEP)
has been formulated.
Environmental management in Myanmar is sectoral in approach. Since 1995 there has
been in existence the Myanmar Agenda 21, which is a policy document providing an
integrated framework of programmes and actions aimed at sustainable development.
The document was completed in 1997.
Despite the role of NCEA, it is still far from clear that broad based modern
environmental concepts have been brought into mainstream thinking in Myanmar. The
approach still seems to be sectoral in character, and with very little effective
coordination between central and state authorities.
According to APCEL13:
"The laws which currently exist in Myanmar are generally too broad and
inadequate to deal with complex environmental management issues. Detailed
implementing legislation do not exist to deal with specific issues such as waste
management, land use and biodiversity protection. In relation to pollution,
Myanmar has no specific laws to govern air and water pollution. There is a
general provision in Section 3 of the Public Health Law which empowers the
Government to carry out measures relating to environmental health, such as
garbage disposal, use of water for drinking and other purposes, radioactivity,
protection of air from pollution, sanitation works and food and drug safety.
However, detailed provisions do not exist to ensure more effective and
comprehensive regulation of these matters.
13 Preliminary report on Myanmar's Environmental Law by Alan Tan, University of Singapore.
57
The only control of water pollution in the country is through guidelines issued in
June 1994 by the Myanmar Investment Commission. These guidelines require that
new projects, from both foreign and private investments, have waste water
treatment plants or systems. In addition, some elements of the Pesticides Law
provide for water pollution control, but only incidentally. River and lake pollution
from sewage, industrial waste and solid waste disposal are serious problems, but
are not regulated explicitly by any laws. Furthermore, the waterworks and
sanitation facilities in the country are not of consistent quality. Nor are their
operations coordinated by any one governmental agency. In Yangon and
Mandalay, waterworks are managed by the Yangon and Mandalay City
Development Committees respectively, while in wards and villages, the local
municipal authorities are in charge of sanitation facilities."
These comments suggest that there is an urgent need for a more comprehensive legal
basis for tackling pollution, especially land based pollution.
APCEL also published the list below of environmental laws in Myanmar, which is
dated August 2003:
Description/subject: Texts of: * Drug Law, National (Law No. 7/92, 1992) * Fishing
Rights of Foreign Vessels, Law Relating to (Law No. 11/89,
1989) * Fishing Rights of Foreign Vessels, Law Amending Law
Relating to (Law No. 15/93, 1993) * Forest Law (Law No. 8/92,
1992) * Freshwater Fisheries Law (Law No. 1/91, 1991) *
Marine Fisheries Law, Myanma (Law No. 9/90, 1990) * Marine
Fisheries Law, Law Amending Myanma (Law No. 16/93, 1993)
* Pesticide Law (Law No. 10/90, 1990) * Plant Pest Quarantine
Law (Law No. 8/93, 1993) * Private Industrial Enterprise Law
(Law No. 22/90, 1990) * Protection of Wild Life, Wild Plants
and Conservation of Natural Areas Law (Law No. __/94, 1994)
* Science and Technology Development Law (Law No. 5/94,
1994)
Critical habitats
In the national consultant's report for Myanmar, the following information is contained:
Mangrove
The extent of Myanmar mangroves is about 382,032 hectares, out of which
177256 ha can be found in the Ayeyarwady delta, 140024 in the Tanintharyi
region and 64752 in the Rakhine. Mangrove forest ecosystems provide a wide
range of goods and services from which local peoples in coastal area have
derived benefit from time immemorial. There are a wide range of direct and
indirect products from mangroves which form the basics for mangrove-dependent
58
economic activities vital to many coastal peoples in Myanmar. Firewood and
charcoal are the main products extracted from the Delta. The annual fuel-wood
requirement for Yangon is about 700,000 hoppus ton, and this demand is
increasing due to population growth. However, Ayeyarwady Delta fuel-wood
production, including some 432,200 hoppus ton is sufficient to meet only 62% of
this demand. Myanmar mangrove forests, particularly in the Ayeyarwady Delta,
have come under pressure due to over-exploitation of the forest for charcoal
production. Moreover, as most rural homes in Myanmar depend heavily on fuel-
wood for cooking, it has resulted in depletion of forest cover in marginal forest
outside the reserved forest area. The satellite image of February, 1995, of the
Delta area indicates 5.8% of forest area in Latputta in place of 32.2% and 19.5%
in Bogalay in place of 51.89% and no forest exists in Mawlamyinegyun at
present. The condition of mangrove vegetation during 1974 and 1995 shows the
extent of degradation within two decades. The land use of Mangrove in
Ayeyarwady(Delta) is shown in Annex i.
Angell (p.40) notes: The Department of Fisheries specifies that shrimp farming shall be
limited to secondary and degraded forests but technology is restricted to extensive
or "improved" extensive farming. It also stipulates that a buffer zone should be
established around these types of farms, but no criteria are given for it. Shrimp
farming is allowed in tidal marshland. The DoF prohibits intensive shrimp
farming on the basis that it is too damaging to the environment.14 However, the
definitions of these different culture technologies are somewhat flexible and
usually based on the stocking rate, that is, number of seed stocked per m2.
The national consultant has identified damage occurring to mangroves, while Angell
has identified certain attempts to control shrimp farming in these areas. Kaly has
identified coastal aquaculture as a source of growth but there appears to be a lack of
information about damage to critical habitats.
Overall conclusion: the legal regime is very patchwork and sectoral. In terms of
fisheries, while basic fisheries laws exist to deal with fishing (both foreign and
local) in the EEZ, there is no provision for dealing with high seas fishing. In
particular, there is a need to incorporate the 1995 UN Fish Stocks Agreement and
the FAO Compliance Agreement, and to introduce modern environmental
concepts such as the precautionary approach and ecosystem considerations into
the national legal regime.
14 Myanmar National Report BOBLME
59
There is a lack of information on land based sources of pollution, though the legal
regime is not adequate to deal with this effectively largely because of the sectoral
approach which underlies most legislation, and above all the absence of a modern
cross cutting multisectoral environmental law.
The main problem seems to be institutional weakness combined with an absence of
an effective modern multisectoral environmental laws. For example, EIA cannot
be imposed under Myanma law though it is reported that it is sometimes put into
effect via aid projects, which is hardly a satisfactory long term solution.
Overall, it would be difficult for Myanmar to put into effect practical measures to
promote large marine programmes without amending first its existing laws.
Sri Lanka
The Constitution assigns a broad responsibility to "protect, preserve and improve the
environment for the benefit of the community."
The basic law governing the marine sector is the Maritime Zones Law No 22 of 1976
This Law provides for the declaration of certain maritime zones, in particular, the
territorial sea (section 2), and the right of innocent passage (section 3), a contiguous
zone (section 4), which includes the novel ground of "security", while section 5 permits
the declaration of an economic zone and provides for the rights Sri Lanka may enjoy in
that zone. It does not make any reference to duties. Section 6 provides for a continental
shelf.
Section 7 (1) permits the President to declare any zone of the sea adjacent to the
territorial sea to be "the pollution prevention zone of Sri Lanka", while section
7(2)states "The relevant Minister shall take such steps as may be necessary to control
and prevent the pollution of, and to preserve the ecological balance within, such zone."
This wording was unusual for its time as references to such concepts were not found in
the 1982 UN Convention nor had such concepts received at least the limited mandate
that they did from UNCED.
60
Section 9 permits the President to declare historic waters, which have greater
importance in Sri Lanka than in most countries.
Section 13 permits the Minister to make regulations "for the purpose of giving effect to
the provisions this law".
Like most of these laws, it lacks detail, but a clause such as section 13 could be utilized
to promote environmental actions in the event that more specific laws were lacking.
However, there is also a danger here in countries with a common law system in that the
doctrine of ultra vires could be invoked against subordinate legislation which went too
far beyond the subjects dealt with directly in the Act itself.
Fisheries and Aquatic Resources Act 1996
This Act needs to be seen alongside the Foreign Fishing Boats Act 1979. Both of these
laws provide effective controls over fishing activities in the internal waters (including
historic waters), the territorial sea and the exclusive economic zone of Sri Lanka.
The Fisheries and Aquatic Resources Act 1996 was prepared before the 1995 UN Fish
Stocks Agreement, and, while it recognizes that high seas fishing needs to be
controlled, it does not reflect the provisions of that Agreement to any great extent.
Thus, while, it permits Sri Lankan vessels to be boarded on the high seas, it does not
require a license for such fishing.
PART I ADMINISTRATION: Appointment of Director and other officers, Establishment
of Fisheries and Aquatic Resources Advisory Council, Functions and responsibilities of
the Council, Fisheries management and development plan.
PART II LICENSING OF FISHING OPERATIONS: Licensing of fishing operations,
Application for a licence, Licenses shall not be transferable. Furnishing of particulars of
licences, provisions of this part not to apply to foreign fishing boat, in Sri Lanka Waters
61
under the provisions of the Regulation of Foreign Fishing Boats Act, No. 59 of 1979.
Part III deals with registration of fishing boats, for which a register shall be maintained
by the Director. Provision is also made for the registration of instruments of mortgage.
PART IV deals with Protection of fish and aquatic resources. It contains provisions on
the Prohibition against the use or possession of poisonous or explosive substances,
Prohibited fishing gear and fishing methods, Catching and possession of prohibited
fish, &c. Prohibition or regulation of export and import of fish, Fisheries Management
areas, Fisheries Committees, Register of fishermen, Minister to declare closed or open
season for fishing, Use of fishing boats for research or scientific purposes.
PART V deals with conservation/, it has provisions on Declaration of fisheries reserves,
which in view of their relevance to the subject of the present study is quoted in full:
36.
The Minister may, in consultation with the Minister in charge of the
subject of Conservation of Wildlife, by Order published in the Gazette, declare
any area of Sri Lanka Waters or any land adjacent thereto or both such waters
and land to be a fisheries reserve, where he considers that special measures are
necessary-
(a) to afford special protection to the aquatic resources in danger of extinction
in such waters or land and to protect and preserve the natural breeding grounds
and habitat of fish and aquatic resources with particular regard to coral growth
and aquatic ecosystems;
(b) to promote regeneration of aquatic life in areas where such life has been
depleted;
(c) to protect the aquatic medium;
(d) to promote scientific study and research in respect of such area; or
(e) to preserve and enhance the natural beauty of such area.
37.
No person shall, except upon a permit obtained from the Director or any
person authorized by the Director in that behalf in the prescribed form and on
payment of the prescribed fee,-
(a) engage in any fishing operation in such reserve;
(b) mine, collect or otherwise gather or process coral, or any other aquatic
resources, dredge, or extract sand or gravel, discharge or deposit waste or any
62
other polluting matter or in any other way disturb, interfere with or destroy, fish
or other aquatic resources or their natural breeding grounds or habitat in such
reserve; or
(c) construct or erect any building or other structure on or over any land or
waters within such reserve.
PART VI deals with Aquaculture. It has provisions on Leasing of State lands,
Licensing aquaculture enterprises, applications for a licence, form and duration of the
licence, renewal, cancellation.
PART VII deals with the settlement of fishing disputes
PART VIII deals with authorized officers and their powers
PART IX deals with offences and penalties, including forfeiture and compounding of
offences, release of detained persons and vessels.
Thus, apart from the fact that it does not address high seas fishing, the Act is very
comprehensive, and provides a sound legal basis for dealing with fisheries and
aquaculture.
Sri Lanka already has to deal with shared stocks due to its common boundary with
India. This is reported on in the following terms in the national consultant's report:
STATUS OF SHARED STOCKS
In the northern part of Sri Lanka, the continental shelf is broad and the shallow
Sri Lankan waters are connected with the Indian territorial waters. Fish species
living in the Gulf of Mannar, Palk Bay and Pedro Bank areas may represent a
single stock as their geological distributions are more or less the same, though
they are separated by legal boundaries.
Many of the deep sea species groups such as deep sea prawns, deep sea lobsters,
squids and cuttle fish, scads, jacks, and perches are highly valuable species
groups shared (?) by many countries in the Bay of Bengal region.
Environmental laws
The National Environmental Act was enacted in 1980 (no 47), and amended in 1988
(no 56)
It is a very comprehensive Act containing many elements which could be used as a
model by other countries.
63
Its purpose is stated in its preamble as being to "establish a central environmental
authority to make provision with respect to the powers, functions, and duties of that
authority; and to make provision for the protection, management, and enhancement of
the environment, for the regulation, enhancement of the environment, for the
regulation, maintenance and control of the quality of the environment,; for the
preventing, abatement and control of pollution and for matters connected therewith or
incidental thereto."
It establishes in Part I the Central Environmental Authority and an Environmental
Council.15
Part II (section 10) sets out the powers, functions and duties of the authority. In addition
to administering the Act, it is given a very wide range of powers ranging from surveys
and research, coordination of all regulatory activities concerning pollution, specifying
standards and criteria for the protection of beneficial uses, regulating maintaining and
controlling the volume, types constituents and effects of waste, prohibiting any
unauthorized discharge, emission or deposit of litter waste, etc, prevention of the
discharge of any untreated sewage, control of pollution of the atmosphere, control of
noise pollution, and much more, including powers over local authorities to comply with
and give effect to recommendations regarding environmental pollution.
Part IV Environmental Management is worth quoting in full:
15. The Authority in consultation with the Council shall, with the assistance of the
Ministry of the Minister in charge of the subject of Lands, formulate and
recommend to the Minister a land use scheme consistent with the following
objects :-
(a) to provide a rational, orderly and efficient system of the acquisition,
utilization and disposition of land and its resources in order to derive therefrom
maximum benefits; and (b) to encourage the prudent use and conservation of land
15 There are very detailed provisions concerning the operation and structure of these two bodies set out in
the Act itself.
64
resources in order to prevent an imbalance between the needs of the nation and such
resources.
16. The Land Use Scheme formulated under section 15 may include--
(a) a scientifically adequate land inventory and classification system;
(b) a determination of present land uses, the extent to which such land is utilized,
under utilized or rendered idle or abandoned;
(c) a comprehensive and accurate determination of the adaptability of land for
community development, agriculture, industry or commerce;
(d) identification of areas having important historic, cultural, or aesthetic value
where uncontrolled development could result in irreparable damage;
(e) a method for exercising control by the Government over the use of land in
areas where environment control is deemed necessary; and
(f) a policy for influencing the location of new areas for the resettlement of
persons and the methods for assuring appropriate controls over the use of
land in and around such areas.
Natural Resources
17. The Authority in consultation with the Council shall recommend to the
Minister the basic policy on the management and conservation of the
country's natural resources in order to obtain the optimum benefits therefrom
and to preserve the same for future generations and the general measures
through which such policy may be carried out effectively.
Fisheries
18. The Authority in consultation with the Council shall, with the assistance of the
Ministry of the Minister in charge of the subject of Fisheries, recommend to the
Minister a system of rational exploitation of fisheries and aquatic resources within the
territorial waters of Sri Lanka, or within its exclusive economic zone, or within its
inland waters and shall encourage citizen participation therein to maintain and
enhance the optimum and continuous productivity of such waters.
19. Measures for the rational exploitation of fisheries and other aquatic resources may
include the regulation of the marketing of threatened species of fish or other aquatic
life.
Wildlife
20. The Authority in consultation with the Council shall, with the assistance of the
Ministry of the Minister in charge of the subject of Wildlife conservation, recommend to
the Minister a system of rational exploitation and conservation of wildlife resources
and shall encourage citizen participation in such activities.
Forestry
21. The Authority in consultation with the Council shall, with the assistance of the
Ministry of the Minister in charge of the subject of Forestry, recommend to the Minister
a system of--
(a)(i) rational exploitation of forest resources,
(ii) regulation of the marketing of threatened forest resources,
(iii) conservation of threatened species of flora, and shall encourage citizen
participation therewith to keep the country's forest resources at maximum productivity
at all times;
65
(b) promoting a continuing effort on reforestation, timber stand improvement, forest
protection, land classification, forest occupancy management, industrial tree
plantation, parks and wildlife management, multiple use forest, timber management
and forest research.
Soil Conservation
22. The Authority in consultation with the Council shall, with the assistance of the
Ministry of the Minister in charge of the subject of Soil Conservation, recommend soil
conservation programmes including therein the identification and protection of critical
watershed areas, encouragement of scientific farming technique, physical and
biological means of soil conservation, and short term, and long term research and
technology for effective soil conservation.
22. The Authority may undertake and promote continuing studies and research
programmes on environmental management and shall from time to time, determine
priority areas of environmental research.
Part IVA addresses environmental protection, and it introduces a strong licensing
regime with regard to the discharge or deposit of waste. Thus "no person shall
discharge deposit or emit waste into the environment which will cause pollution except
(a) under the authority of a licence issued by the Authority; and (b) in accordance
with such standards and other criteria as may be prescribed under this Act."
Part IVB introduces strong environmental quality standards for inland waters, with
strong penalties imposed. Likewise there are strong provisions accompanied by
penalties with respect to pollution of the atmosphere, and soil. There are also provisions
dealing with discharging or spilling oil or mixtures containing oil into the inland waters
of Sri Lanka.
Part IVC deals with approval of projects, which basically gives the government to
prescribe certain projects as ones which require advance approval, and to submit to an
initial environmental examination report.
Part V gives the Authority the power to obtain information from occupiers of premises
to furnish information regarding any manufacturing, industrial, or trade process carried
out on the premises.
Section 32 (Part V) gives the Minister a very wide regulation making power.
66
Finally, the Act (in section 33) contains some definitions, the most important of which
are: air pollution, beneficial use, environment, noise pollution, pollutant, pollution,
toxic chemical, and waste.
There is also the Coast Conservation (Amendment) Act, 1988, which, according to the
national consultant's report for Sri Lanka
"Sri Lanka enacted a Coast Conservation Act in 1981. The Act established a
coastal zone that extends from 02 km seaward to 300 m inland from the mean
high water level. The coastal zone of the country comprises highly productive
marine & coastal ecosystems such as coral reefs, seagrass, beds, lagoons and
estuaries. Important ecosystems found along the coastal zone are given in Table
2.16"
Overall, Sri Lanka has one of the strongest environmental law regimes on its statute
books of BOBLME countries.
Critical habitats
In the national consultant's report, attention is drawn to the effects of aquaculture
activity on mangrove swamps.
Impact of aquaculture on coastal habitats
The mangroves are widely extracted for both subsistence and commercial
purposes. Considerable areas of mangroves have been destroyed due to shrimp
culture development in the North-Western belt over the last two decades. There
has been a reduction of about 60% of mangroves since 1986 due to the
16 Table 2: Important ecosystems found along the Coastal Zone
Mangrove forests 8687 (ha)
Salt marshes 23819
Beaches 11800
Sand dunes 7606 t
Lagoons & estuaries 158017
Marshy wetlands 9754
Other water bodies 18839
67
transformation of large areas to other uses such as shrimp culture and other
development activities in the coastal zone (Table 4). Destruction of mangrove
habitats has led to reduced feeding, breeding and nursery habitats for
commercially important coastal and marine finfish and shellfish, which in the
long term have created adverse effects on the lagoon and coastal fisheries.
Sea grass beds on the west and north-western lagoons and estuarine systems of
Sri Lanka are threatened by the release of large amounts of shrimp farm effluents.
The environment law referred above would provide a basis for controlling activities
which might impact on these habitats.
Angell (p.31) reports on mangroves in the following terms:
Mangroves are not as extensive as in the continental states of the BOBLME
region, but they are locally important as nursery grounds for commercial species
wildlife, habitat and shoreline protection. Conversion to shrimp ponds has
reduced mangrove forest considerably, particularly around Puttalam Lagoon, but
almost half of the farms are illegal.17 Some homesteading encroachment has also
occurred. Loss of access because of shrimp farm development has impacted the
livelihoods of nearly 6000 households in the Puttalam District. Agricultural land
has been lost in the northwestern province, amounting to around 640 ha, while
almost half the communities around lagoons in the south have had to change their
livelihoods because of degraded natural resources.22
Some mangroves in the north and east have been damaged during the civil war,
but mangroves found beyond the reach of shrimp farm developers are in good
condition. NGO's were very active on the south coast encouraging opposition to
shrimp farming. A Special Area Management Plan was implemented in Rekawa
and although there were organizational and financial problems, the results were
sufficiently encouraging to expand the program to other sites, some of which have
mangroves. Other causes of mangrove degeneration include extraction of timber
and firewood and for the brush pile fishery.
Kaly (p.105) reports on exceptionally high levels of pesticide usage, which could point
to a problem with the applicable legal regime.
Land based pollution.
17 Sri Lanka National Report, BOBLME
68
Despite being an exceptionally strong environment law, it appears that it has not had a
significant impact on the extent of land-based pollution In Sri Lanka
Kaly (p.47) reports:
Coastal waters in Sri Lanka are polluted due to release of untreated or partially
treated solid wastes and effluents from industries, tourist resorts and aquaculture,
sewage and agriculture (Joseph 2003). These pollutants are often released into
rivers and from there find their way to the sea.
It will be apparent from the information provided by Kaly that there is a classic gap
between the potential provided for by a strong legal regime and what can be achieved in
reality. However, Sri Lanka does at least have the laws in place to respond as its
capacity or its needs develop.
Overall summary: The legislative regime has some strong elements from an
environmental perspective though there are some problems of overlap between
certain bodies (see Kaly). However, the fisheries legislation, while adequate in
terms of addressing local and foreign fishing within the EEZ, does not provide
effectively for high seas fishing. There is a need to give effect to the 1995 UN Fish
Stocks Agreement and the FAO Compliance Agreement. In doing so, the
opportunity should be taken to introduce modern concepts such as the
precautionary approach and ecosystem approaches to fisheries management. It
would seem that such laws as exist regulating land based sources of pollution are
either not adequate or are not well enforced, most probably the latter. Critical
habitats are not protected in practice though there seem to exist sufficient controls
under the environment law to do this more effectively if the political will were
present to do so.
Thailand
Thailand is a constitutional monarchy, with its king as the Head of State. Supreme law
making power is vested in the parliament. Its hierarchy of laws is as follows: the
constitution is supreme, followed by Acts of parliament, followed by regulations and
notifications enacted by the responsible ministry.
69
The Royal proclamation establishing the Exclusive Economic Zone of the Kingdom of
Thailand of 23 February 1981 establishes the EEZ of Thailand as an area beyond and
adjacent to the territorial sea extending for two hundred miles from the baselines from
which the territorial sea is measured.
In this zone," the Kingdom of Thailand has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the seabed and
subsoil and the superjacent waters, and with regard to other activities for the
economic exploration and exploitation of the zone, such as the production of
energy from the
water, currents and winds.
(b) jurisdiction with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the preservation of the marine environment.
(c) other rights as may exist under international law.
3. In the exclusive economic zone, the freedoms of navigation and overflight and
of the laying of submarine cables and pipelines shall be governed by international
law.
It will be noted that the proclamation also refers only to rights, without also referring to
duties, but on the other hand it does emphasize the economic rights in the zone. This
proclamation does nothing more than proclaim the zone in international law, and needs
legislative follow up in order to be fully effective.
The Fisheries Act 1947. Given the importance of the sector to Thailand, it is surprising
that it has not introduced new legislation to update its fisheries laws, and which has for
a long time recognized as being inadequate. It is no only that it is out of date as far as
the EEZ is concerned, and with the changes introduced as a result of the 1982 UN
Convention, but it is silent on the question of high seas fishing. Further, it does not
address modern management concepts introduced with UNCED and the 1995 UN Fish
Stocks Agreement.
70
The Fisheries Act 1947 has been summarized in the following terms by B
Kuemlangan:18
The purpose of the main provisions of the Fisheries Act are summarized as
follows:
· The preliminary part - provides for the title of the Act, entry in force, laws that the
Act repeals, definitions, identifies the authority who takes charge and control of
the execution of the Act, and vests certain powers in that authority.
· Chapter 1 - provides for general basis for management, empowerment of persons,
offices or agencies to manage fisheries (e.g. authorizations, setting terms and
conditions for fishing).
· Chapter 2 - relates to control of cultivation ponds.
· Chapter 3 - specific controls for fishing including, registration, permits, conditions
for use of fishing implements, exemptions from requirement of permits; liability in
respect of boat persons on Thai boats used in violation of foreign states' laws,
taxes, notifications, prohibitions, fishing seasons, inspections and appeals.
· Chapter 4 - governs monitoring requirements and procedures.
· Chapter 5 - reemphasizes that fishing shall be undertaken under licence, contains
prohibitions relating to possession and introduction of specified aquatic animals,
provides for monitoring and enforcement requirements of this Chapter.
Enforcement powers include powers of arrest, entry and inspection, and seizure,
removal or demolition of implements.
· Chapter 6 - creates offences and provides penalties for commission of offences.19
In the national consultant's report on Thailand, the following is said:
Transboundary species
It is reported that at least 10 commercially important fish stocks such as
Rastrelliger brachysoma, R. kanagurta, Scomberomorus commerson, Auxis
thazard, Euthynnus affinis, Kastsuwonus pelamis, Thunnus tonggol, Thunnus
albacares and Loligo spp, which are commonly exploited by several countries
18 Kuemlangan, Preliminary Review of the Fisheries Legal Framework of Thailand (1999) FAO/Fish
Code
19 Further very useful information on the Thai fisheries laws can be found in Final Report on Legal
Advice to Thailand Mission (April, June, July, August, 2000) (FISHCODE GCP/INT/648/NOR-SUB-
PROJECT C1) In that report, also are listed other laws having a relevance to fisheries. These are:
i)
Act Governing the Right to Fish in Thai Waters, 1939, ii)
Wild
Animal
Preservation and Protection Act, 1992 iii) National Park Act, 1961 iv)
Thai
Vessels
Act, 1939 v)
Fish Marketing Act, 1953 vi)
Navigation in Thai Waters Act, 1913 vii)
Enhancement and Conservation of National Environmental Quality Act, 1992.
71
along the Andaman Coast, frequent inshore and coastal water of more than one
country or straddle the exclusive economic zones thereof. Knowledge of their
biology, bionomics and migratory behavior and transboundary movements is
fragmentary; likewise, the data on the state of exploitation of these transboundary
resources are limited. In the case of R. brachysoma, BOBP (1987) reported the
migration pattern in the Malacca Strait (Figure 6). They reported that the Indo-
Pacific mackerel stock was divided in 3 stocks, i.e., the first was distributed in the
eastern end of Sumatra Island in Indonesia through the south-west of Penang,
Malaysia, the second was distributed between Myanmar-Thailand boundary
waters and the third has distribution in Phang-nga Bay through the north of
Penang Island.
The information contained here underlines the need for a thorough refashioning of the
fisheries law of Thailand. This is necessary because the existing legislation is very
much out of date, predating even the introduction of the EEZ regime, but also because
it needs to bring in modern management concepts such as the objective of long term
sustainable use, the precautionary approach to fisheries management, and the need for
an ecosystem approach to fisheries.
The Wild Animal Reservation and Protection Act 1992 is used to protect animals
designated as "Protected Wild Animals" or "Reserved Wild Animals" and to implement
the Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES).20 Wild animals are defined as including aquatic animals, which obviously
brings fisheries resources (fauna only) under the control measures stipulated under the
Act. The Act empowers jointly, the Director Generals of the Royal Forest Department
and Department of Fisheries to implement certain provisions of the Act but it implicitly
gives the power to implement the provisions of the Act to the Director General of
Department of Fisheries where aquatic animals are involved.21
National parks are designated and managed under the National Park Act B.E. 2504
(1961). Land can be designated as National Park by Royal Decree.22
20 Wild Animal Reservation and Protection Act, Section 24.
21 This information is derived from Kuemlangan, Preliminary Review of the Fisheries Legal framework
of Thailand 1999 (FAO/Fishcode)
22 Kuemlangan
72
The National Park Committee is established under the Act23 to advise the Minister on
the determination of land to designate as a national park, the protection and
maintenance of national parks, and such other matters that the Minister consults the
Committee on.24
Marine areas have been designated as National Parks under the Act. These areas
include areas that have been fished or are being fished, albeit illegally, and which
would otherwise be managed under the Fisheries Act 1947. Fisheries officers are
designated as National Park Officers (competent officials) under the Act to also manage
marine national parks. The Department of Fisheries is represented on the National Park
Committee.25
It is doubted whether the National Park Act was intended to create national parks in
marine areas as the Act is designed for, and appears more relevant to, the creation of
national parks on land. For example, "land" is defined as "surface of land in general
and includes mountain, creek, swamp, canal, marsh, basin, water way, lake, island and
seashore"26 and the list does not include marine areas.27
Enhancement and Conservation of National Environmental Quality Act 1992
The following summary is provided by APCEL Alan Tan Faculty of law University of
Singapore
The main framework environmental legislation is the Enhancement and
Conservation of the Natural Environmental Quality Act of 1992 (hereinafter
"EQA). The EQA is a substantive piece of legislation which contains several
23 Section 9
24 ibid Section 15.
25 Kuemlangan
26 National Park Act, Section 4
27 Kuemlangan
73
progressive provisions designed to enhance the protection of the environment.
The interesting features of the EQA include:
·
the provision of the right of individuals to information, compensation and
redress against violators, and the duty of individuals to assist and cooperate in
enhancing and protecting the environment;
·
a recognition of the role and standing of environmental NGOs;
·
the provision for the Prime Minister or the delegated provincial governor to
deal with emergencies or public danger arising from natural disasters or
environmental pollution;
·
the creation of a high-level multi-representational National Environmental
Board (NEB) to oversee the coordinated response of ministries inter se and
between central and provincial authorities;
·
the establishment of an Environmental Fund from which resources will be
drawn to combat environmental incidents and to enhance environmental
protection efforts like research and training, disbursements of loans and grants,
education, NGO funding etc.;
·
the formulation of a National Environmental Management Plan and the
subsequent duties of government agencies to implement the Plan and of provinces
to draw up corresponding Changwat Action Plans, if required;
·
the provision for the NEB to declare Pollution Control Areas (PCAs) in
localities where particularly serious pollution concerns have arisen - contingent
upon the declaration of a PCA, special measures may be taken to redress the
problem in the area concerned, and a duty is henceforth imposed upon the
provincial governor to draw up a Changwat Action Plan to redress the situation;
·
the provision for the declaration of Conservation and Environmentally
Protected Areas in environmentally-fragile areas where special measures can be
taken to protect sensitive natural ecosystems and wherein a Changwat Action
Plan would have to be formulated by the provincial governor to address the
concerns;
·
the provision for the NEB (instructing the MOSTE) to assume jurisdictional
competence over changwats (provinces) where the provincial authorities
demonstrate an unwillingness or incapacity to deal with a particular incident or
to come up with suitable provincial plans;
·
the prescription of a fairly-detailed environmental impact assessment (EIA)
process which incorporates public participation and views of experts in decision-
making;
74
·
the establishment of a multi-agency Pollution Control Committee to oversee
pollution control matters, including the enactment of discharge standards;
·
the regulation of air, noise, water and hazardous waste pollution, as well as
other forms of pollution;
·
the duty to use central waste treatment facilities, the expense for which is borne
by the user (pursuant to the "polluter pays" principle);
·
the prescription of various civil, criminal and administrative remedies for
environmental violations.
The Law as it stands is quite comprehensive. The main problem, however, appears to
be in its implementation.
Critical habitats
Angell (p.45) has reported that there are measures afoot under the Ninth National
Economic and Social Development Plan which will improve the coastal environment:
Sustainable use of coastal resources and environmental protection are embodied
in action plans formulated under the Ninth National Economic and Social
Development Plan.28 The action plans will considerably improve the coastal
environment if the can be implemented as planned. In summary, the ways in
which the objectives of the Plan are to be achieved are:
1. Protect conservation zones by promoting sustainable utilization:
· Complete zoning of mangrove areas,
· Set up a mechanism for mangrove forest management to reduce conflicts
between government and local people,
· Local participation in reforestation programs,
· Declare marine protected areas and fisher resources conservation area as well
as establish fishing zones and management for small scale fisheries.
2. Rehabilitate coastal resources through:
· establishing a Sea Rehabilitation Plan covering conservation, rehabilitation and
utilization of coastal and marine resources, tourism and small scale fisheries,
· Eliminate the use of destructive fishing gear,
· Establish coastal zones to protect coral reefs, sea grass beds and seaweeds,
· Restore erosion damaged beaches,
28 Thailand National Report, BOBLME
75
· Provide waste disposal and treatment facilities along the coast.
Once again, there are steps underway to protect certain critical habitats. The problem
appears to have more to do with effective implementation.
Land-based sources of pollution
Kaly reports mixed conclusions on the extent of land based pollution, though the risks
of environmental damage are ever present. However, the Environmental Quality Act
should provide at least an adequate legal basis for dealing with land-based pollution
provided that the administrative capacity is present to take advantage of it.
Tan lists the laws set out below as laws having a relevance to the environment. It will
be apparent that many of these could play a part in dealing with land-based pollution.
APPENDIX
SELECTION OF MAJOR ENVIRONMENTAL LAWS
Framework Laws
· Enhancement and Conservation of the National Environmental Quality Act
1992
· Notification of MOSTE on Types and Sizes of Projects or Activities of
Government Agencies, State Enterprises or Private Persons Required to Prepare
an Environmental Impact Assessment Report 1992 (24 August 1992)
Pollution Control
· Factories Act 1992
· Notification of the Ministry of Industry Concerning Factory Wastes 1988
· Public Health Act 1992
· Cleanliness and Orderliness of the Country Act 1992
· Hazardous Substances Act 1992
· Notification of Ministry of Industry Concerning Storage and Disposal of Toxic
Substances 1982
· Poisonous Substances Act 1967, amended in 1973
· Notification of Ministry of Industry Concerning Industrial Effluent Standards
1982
· Notification of Ministry of Industry concerning manufacture and use of toxic
substances 1982
76
Energy
· Energy Conservation Promotion Act 1992
· Notification Concerning Duty Reduction on Energy Efficiency and
Environmental Technology 1988
Conservation of Natural Resources
· Wildlife Conservation and Protection Act 1992
· Conservation of Wild Elephants Act 1921 (second issue 1960)
· Forestry Act 1947, amended in 1989
· Forest Plantation Act 1992
· Forest Reserve Act 1964
· National Park Act 1961
Fisheries
· Fishery Act 1945, amended in 1985
Mining
· Mineral Act 1967
· Petroleum Act Nos. 1 - 5 (1971, 1973, 1979, 1989, 1991)
Land Use and Planning
· Construction Building Control Act 1979
· City Planning Act 1975
· Land Reform for Agriculture Act 1975
· Investment Promotion Act 1977
· Industrial Estate Authority of Thailand Act (No. 3) 1996
Water Resources and Marine Environment
· Groundwater Act 1977
· Groundwater Act (No. 2) 1992
· Navigation in Thai Waterways Act 1913
· Prevention of Ships Collision Act 1979
· Regulations on Prevention and Combating of Oil Pollution
Cultural/Natural Heritage
· Archaeological Sites, Antiques, Art Objects and National Museum Act 1961
Traditional ownership and customary use systems
77
The Thai Constitution, as revised in 1997 contains some provisions which have a
bearing on traditional rights. These are explained in the following terms:
Section 56 of the 1997 Thai Constitution provides the right of a person and
communities to participate in the preservation and exploitation of natural
resources. Persons part of "a traditional community" have the explicit right to
participate "in the management, maintenance, preservation, and exploitation of
natural resources and the environment" as provided by law (Section 46).
Participatory rights in governmental decision-making are also provided in
Section 60 and Section 56, paragraph two. Tied to the rights of the Thai people
are the duties on the Thai people (chapter IV). The duties include obeying the law
(Section 67) and to conserve and protect natural resources and the environment
(Section 69).
The two clear messages from the 1997 Constitution that relate to fisheries are:
i) public participation is to be promoted, and ii) natural resources and the
environment are to be conserved and protected.29
Overall conclusion on Thailand. What is interesting about this legal regime is that,
despite the fact that fisheries in Thailand is of considerable economic and cultural
significance, the legal regime barely acknowledges the EEZ regime. No doubt, this
is in part influenced by the fact that much of the waters around Thailand overlap
with the zones of other countries. The fisheries law is completely out of date and
needs to be revised to give effect to the EEZ regime as well as enabling Thailand to
control the actions of fishers on the high seas. It should also include modern
management objectives such as long term sustainable use, precautionary
approaches to fisheries management, and ecosystem considerations. It should also
give effect to the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks
Agreement which would enable Thailand to participate more effectively in
regional fisheries bodies.
The basic environmental law is very detailed, and if effectively implemented, could
provide a basis for the control of land-based pollution. It also provides a basis for
protecting critical habitats, though in this respect, the results are mixed.
One major problem is that, in Thailand, the bureaucracy is very sectoral in its
approach, possibly more so than in most other countries of BOBLME. This makes
a multisectoral cross cutting approach, difficult enough in its own right, especially
difficult to implement.
Overall assessment of the legislative regime in BOBLME countries:
29 Final Report on Legal Advice to Thailand Mission (April, June, July, August, 2000) (FISHCODE
GCP/INT/648/NOR-SUB-PROJECT C1)
78
The pattern throughout the countries of the BOBLME region as regards legislation is
remarkably similar.
All countries have enacted basic EEZ type laws to give effect to the EEZ concept,
broadly along the lines of the 1982 UN Convention. However, for some, these laws are
merely proclamatory of the right of the State in question to the resources of the Zone. In
such States, it is necessary to go beyond these basic laws and look at the specific laws
governing fisheries, or marine pollution. For others, however, these laws provide a
rudimentary rule or regulation making power which might be the only basis on which
they can take action over certain activities, especially non fisheries activities.
Apart from Malaysia, which has legislation in its final stages, there is no country which
has so far addressed controlling fishing on the high seas. However, it can be expected
that several of the countries do have vessels or fleets operating in such areas.
In some countries, there exist general environmental laws, however, the scope of some
of these laws is uncertain, and it is not always clear if they extend to the EEZ. On the
other hand, such laws do provide a basis for the coordination of actions by relevant
agencies to address environmental matters. In addition, while most countries will have
some legislation that is capable of addressing the problem of land based pollution, no
country appears to have a systematic legal regime for controlling such a source of
pollution. On the other hand, the environmental laws would provide the best means
available to bring about controls in this area. More information on the existing laws
applicable to land-based pollution is needed.
Very little in the way of direct evidence of traditional ownership and customary use
systems could be found, though it would be realistic to expect that, especially in remote
places, customary uses would prevail. More information is needed on this.
Critical habitats were at least capable of some, if not complete, protection under the
laws of most countries, even if not under a law that referred to such an entity. For
79
many, the basic fisheries law or a national parks or environmental law could provide
the basis for exercising necessary control.
However, the evidence of laws dealing directly with such matters is limited and
patchwork at best. In this regard, BOBLME countries do not differ significantly from
other countries and regions.
Thus, from the point of view of utilizing national legislation in order to bring about a
sustainable regime for the management of the BOBLME, one that facilitated the
introduction of ecosystem considerations, we find a patchwork of laws that, when put
together, do not add up to a composite whole.
Looked at from another point of view, we find that the laws reflect the various sectors
set out in the 1982 UN Convention. This is only to be expected, but it does make it very
difficult looked at from the view point of national law alone for a country to adopt
effective measures to deal with a geographical phenomenon such as an LME.
Terms of reference:
Identification of shared and trans-boundary issues relating to the management and
enforcement of legislation on these three priority topics in the BOBLME region, and in
particular those issues for which the existing legal and institutional framework does not
permit or enable the implementation and enforcement of legislation relating to the
three priority topics (hereinafter referred to as "these issues");
It is useful to explain what one means by phases such as shared and straddling stocks,
as there is no uniform accepted usage. Sometimes the more general phrase
"transboundary stocks" is used. Here, it is intended to utilize the distinction implicit in
arts 63.1 and 63.2, where 63.1 refers to so called shared stocks, while 63.2 addresses
straddling stocks. Highly migratory species are addressed in art 64. The only other
category to mention (leaving aside marine mammals, anadromous stocks and
80
catadromous species for the moment) are the so called "discrete high seas stocks",
which is a relatively new term that is intended to refer to high seas stocks that are
neither straddling nor shared, and are not highly migratory.
It is not proposed to assess the regional and sub regional institutions which could
provide the basis for more effective cooperation as this is already covered in the
Preston paper and will be specifically addressed in the Lugten paper.
Preston (p 18) has stated that "70 to 75% of the BOBLME lies within the EEZ' of
BOBLME countries, with the remainder being high seas area outside of any national
jurisdiction."
Preston (p.41) has also pointed out that the fisheries statistics are still very imprecise (p
39), and concludes "The imprecise nature of the statistics introduces considerable
uncertainty into any conclusions that may be drawn from them."
Preston (p.41) has identified the following possibilities for shared and straddling stocks:
Many of the stocks on which the BOB's fisheries are based traverse the
international boundaries of adjacent, and sometimes non-adjacent, countries.
Large pelagic species such as tunas and billfishes may move over large ocean
ranges and pass through the EEZs of many countries. Smaller pelagic species
such as anchovies, herrings and shads are not individually mobile on such a large
scale, but may still migrate through the coastal waters of two or more adjacent
countries. Even resources which appear to be sessile or only locally mobile, such
as reef fish, lobsters, and sea cucumbers, may have patterns of larval dispersal
that give their distribution an international dimension. Fisheries based on these
stocks in one country may be replenished by recruitment that originates in
another country where fishing is lighter. Conversely, and far more likely in the
BOB region, intensive fisheries in several countries that all target the same stock
have the potential to cause rapid over fishing and stock decline or collapse.
1.A good example of such a case is the fishery for shad, which occurs throughout
the BOB region. Five species of tropical shads (Clupeidae: Tenualosa species)
(known locally as Terubuk in Indonesia, Terubok in Malaysia, Hilsa in the Indian
sub-continent and Pha Mak Pang in Thailand) live in the estuaries and coastal
waters of the BOB region. The most widespread and well-studied species is
Tenualosa ilisha, which is found in all BOB countries except Maldives, and is the
basis of important fisheries throughout its range. The closely related T. reevesi
occurs intermittently along the South China coast and far up the Yangtze, Pearl
81
and Qiantang rivers. Once widespread, Tenualosa toli is now abundant common
only in the estuaries and adjacent coastal areas of Sarawak. T. Thibaudeaui only
lives in the lower and middle Mekong system and is believed to be close to
extinction, and T. macrura lives in the coastal waters of Sumatra and Borneo.
(Blaber, Brewer et al. 2001).
At p 42 he says:
There are numerous other examples where fisheries of several BOB countries
target what are thought to be the same stocks, and where joint research and
management action could provide multi-country benefits. The table below lists
other fisheries that may fall into this category. Most of these shared stocks are
from the group of small pelagics whose abundance usually depicts strong
interannual fluctuations and is subject to climatic changes. The high variability in
both stock abundance and migratory behaviour poses a particular challenge in
their collaborative management. There is, however, little doubt from experiences
elsewhere that in the absence of joint management, small pelagic species can be
fished down to low and possibly unsustainable levels (Martusubroto 2002). At
present, however, there are no clear institutional mechanisms through which such
joint management could occur.
Highly migratory tuna and tuna-like species are of particular importance for the
fisheries in Sri Lanka and the Maldives, and to a lesser extent in India, Indonesia,
Malaysia and Thailand. North of the equator, the main concentrations of these
species occur in the Western Indian Ocean. In the Eastern Indian Ocean, the
concentrations are more in the southern areas and outside the Bay of Bengal
LME. The extent of migration of these species is such that management needs to
be approached on an ocean-wide basis. This is the function of the IOTC, but at
present the Commission only counts four BOB countries (India, Malaysia,
Thailand and Sri Lanka) as members.
2.
At p.139, Preston lists the following as possibly being subject joint management
arrangements.
There is thus a strong argument for the establishment of joint management
arrangements for a number of stocks, resources or fisheries. Candidate fisheries
include (but are not necessarily limited to) the following:
·
hilsa
·
bottom trawl fisheries in adjacent countries
·
oil sardine
·
short mackerel
·
Indian mackerel
·
demersal reef fisheries in neighbouring countries
·
penaeid prawns
82
There is no need to labour the obvious point that emerges from this, namely that there
are sufficient opportunities for cooperation between the countries of BOBLME with
respect to the marine living resources of the Bay of Bengal. However, as regards
fisheries, while there exist a number of regional fisheries bodies, cooperation in order to
promote the objectives of an ecosystem approach will be difficult for the following
reasons:
First, not all countries are parties to the 1995 UN Fish Stocks Agreement (Only India,
Maldives, and Sri Lanka are currently Parties). This would mean that there would be no
obligation for those states not members to accept decisions of such bodies (though NB
art 8, which attempts to give members of organizations a certain advantage in gaining
access. However, there will remain a problem with this for some time in light of the
pacta tertiis point namely that treaties can only bind those States which are parties to
it. It will probably take a decision of ITLOS or the ICJ to sort this one out, as academic
writing and state practice is not united on this issue).
Secondly, as has already been explained above, the various legislative regimes of the
individual countries will not provide a comprehensive basis for taking the necessary
action to address marine ecosystem issues.
Thirdly, even if all of the legislative regimes were in a perfect state and the level of
enforcement was effective in all areas, the present state of international law would not
facilitate the countries in effectively establishing an LME. This is because the present
state of international law does not permit effective action on the high seas areas, except
in certain limited aspects.
Even within EEZs, there are limitations on what a State can do with respect to freedom
of navigation. This would point toward the need to examine the prospects for a
cooperative approach which drew on the so called soft law instruments, or which drew
83
on the progress made in the fora which negotiated these soft law instruments in order to
fashion an instrument for the region, or which focused efforts on making existing
instruments, both soft and hard, more effective. There is a view that there are already
too many instruments which have not been given full effect to, and what is needed is a
greater focus on making these instruments more effective rather than merely creating
new instruments unless there is a good reason to do so.
The zonal approach of the 1982 UN Convention is also a problem, despite the
recognition in the preamble that "the problems of ocean space are closely interrelated
and need to be considered as a whole".
Also, it is important here to distinguish between so called "soft" and "hard" law. There
are numerous soft law instruments which promote ecosystem approaches, either
generally or specifically such as UNCED, Code of Conduct for Responsible Fisheries,
IPOA-IUU, the Washington Declaration on Protection of the Marine Environment from
Land-based Activities, Reykjavik Declaration on the Ecosystem, and WSSD.
It is, however, very important to get the balance right between these soft instruments
and the binding (hard) instruments, such as treaties. These soft law instruments are
playing an important role in filling the gaps left by 1982 UN Convention, and the 1995
UN Fish Stocks Agreement, and by promoting a more holistic approach to marine
affairs. To discuss this without reference to the important progress made in these soft
law instruments is very misleading. However, to go the next step and to treat them as if
they are quasi-binding in character can also lead to a distortion of judgement - and
disappointment.
Terms of reference.
Analysis of the root causes as to why the existing legal and institutional framework
does not adequately permit or enable the implementation and enforcement of
legislation relating to the three priority topics;
84
This has partly been covered in the previous part.
However, the root causes could be summed up in two sentences: First, the zonal
approach set out by the 1982 UN Convention will of necessity be a root cause as to why
the adoption of an ecosystem approach will always be difficult, especially when it
comes to high seas areas, or to managing instances of overlapping jurisdiction.
The second root cause is the inability of many of the coastal countries to take effective
action even where there is in place well drafted legislation to control, for example, land
based pollution. This however, is a problem which is not confined to the region. Thus,
in an important instance where the 1982 UN Convention departs from a strict zonal
approach namely with respect to land based sources of pollution, it has proved very
difficult to get States to agree on solutions in a binding context.
Thus, despite all the progress being made in the area of soft law instruments, this will
not mean much if states do not at least utilize their existing legislative powers. While
new, more comprehensive powers may well be necessary, this should not hide the need
for more to be done now on the basis of what already exists.
Terms of reference
Prioritization of these issues in order of regional severity;
The most pressing priority is for the need to generate political will to apply existing
laws and instruments. Most countries have at least basic legislation in place which
could be used to bring about a more effective control of marine spaces.
Following that is the need for the preparation of more comprehensive environmental
laws which can embrace the elusive issue of land based pollution, and can provide the
basis for administrations to introduce ecosystem considerations.
Related to this is the need for comprehensive laws that permit a multisectoral approach
to the extent that it is possible within existing international law. Most probably this
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would have to be principally in the nature of a coordinating law. This could be achieved
in some countries by amending the basic environmental law to ensure that it provides
effectively for marine areas if it does not already do so. Such a law should ensure that
ecosystem wide perspectives are given prominence in such a law, and in its
implementation. This can in part be achieved by stating the importance of that and
related objectives such as the precautionary approach and long term sustainable use in a
clause which states clearly that the objective of the new legislation is to bring in such a
perspective.30
Terms of reference
Description of any knowledge gaps, policy distortions, legal and institutional
deficiencies that impede the development of solutions to these issues;
Again these are to an extent implicit in the above discussions.
Terms of reference
· Suggested actions that should be taken to eliminate such gaps, distortions and
deficiencies;
From a legal point of view, there is a continuing need for legal assistance in the
preparation of up to date legislation in the areas under consideration. For example, in
the area of fisheries, legislation should be introduced to give effect to the 1995 United
Nations Fish Stocks Agreement and the 1993 FAO Compliance Agreement, in order
that more effective action can be taken with other states in regard to highly migratory
fish stocks and straddling fish stocks. Such laws should incorporate new concepts found
there on the precautionary approach and the need to bring in ecosystem considerations.
30 For a discussion of this, see Edeson, Freestone and Gudmundsdottir Legislating for Sustainable
Fisheries: A Guide to the Implementation of the 1993 FAO Compliance Agreement and the 1995 UN
fish Stocks Agreement. World Bank Law Justice and Development Series 2001 p.25 et seq.
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However, this in itself is not a complete solution.
There should be consideration given to greater use of port state controls in the region as
a means of controlling vessel sourced pollution as well as bringing about greater control
over fishing.
Terms of reference
· Priorities, in terms of regional need, for comprehensive, cross-sectoral ecosystem-
based actions that integrate ecological and development considerations in response to
these issues, including suggestions for sectoral interventions and for the national/
regional legal and institutional mechanisms necessary for them to take place;
At the regional level, the top priority probably should be to utilize an existing forum to
which all BOBLME countries can belong and in which other nations with an
involvement in the area can participate in order that an integrated approach can be
adopted to LME issues. This has already been discussed in the Preston paper and in the
Lugten paper.
The greatest single sectoral intervention is likely to be in respect of land based sources
of pollution. However, this also creates the greatest problem in terms of coordination as
many countries are very wary of permitting others to have control or influence over
matters which they consider to be essentially domestic in character. This has
traditionally been the greatest constraint in dealing with land based pollution. Thus, the
mechanism most likely to be effective is one that is voluntary in character, and which
can bring together a wide range of persons and capacities.
Terms of reference
Ways to assist the countries in the BOBLME region to better understand these issues and to
work collaboratively to address them;
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There will be a need for more legal training of persons working in these areas in order
to enhance their capacities in preparing and implementing the legislation, (though
obviously, this is not to suggest that the need is only in the legal area).
There could also be advantage in considering workshops that identify a particular
solution and which work toward the preparation of a first draft of a new regime,
whether treaty, voluntary instrument, or even the preparation of draft legislation that
contains the essential elements of a law to deal with ecosystem issues. Such workshops
of necessity need to be cross cutting, addressing environment, fisheries, critical
habitats, land based pollution and vessel sourced pollution.
There may be an advantage in having workshops on law enforcement and in the
bringing of prosecutions for environmental offences as these will of necessity raise
some complicated specialist issues.
In sum, there is a need for greater capacity building across the marine and
environmental sector.
Terms of reference
· Suggestions for location of proposed activities to address these issues in two types of
areas:
-
where maximum demonstration/replication value can be achieved if it is
an innovative activity where the human need is the greatest.
This will no doubt be addressed at greater depth in the Lugten paper. It would be
reasonable to assume that there are in any event needs at the local level where there
would be a dearth of persons with training in what might loosely be described as
ecosystem perspectives. This could call for "training the trainers".
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