REVIEW OF THE LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT IN THE SOUTH CHINA SEA AND GULF OF THAILAND

Transcription

1 Reversing Degradation Trends in the South China Sea and Gulf of Thailand REVIEW OF THE LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT IN THE SOUTH CHINA SEA AND GULF OF THAILAND UNEP/GEF Regional Task Force on Legal Matters

2 First published in Thailand in 2007 by the United Nations Environment Programme. Copyright 2007, United Nations Environment Programme This publication may be reproduced in whole or in part and in any form for educational or non-profit purposes without special permission from the copyright holder provided acknowledgement of the source is made. UNEP would appreciate receiving a copy of any publication that uses this publication as a source. No use of this publication may be made for resale or for any other commercial purpose without prior permission in writing from the United Nations Environment Programme. UNEP/GEF Project Co-ordinating Unit, United Nations Environment Programme, UN Building, 2 nd Floor Block B, Rajdamnern Avenue, Bangkok 10200, Thailand. Tel Fax DISCLAIMER: The contents of this report do not necessarily reflect the views and policies of UNEP or the GEF. The designations employed and the presentations do not imply the expression of any opinion whatsoever on the part of UNEP, of the GEF, or of any cooperating organisation concerning the legal status of any country, territory, city or area, of its authorities, or of the delineation of its territories or boundaries. Cover Illustration: Artisanal fishermen apprehended by Cambodian authorities for using cyanide in the transboundary area between Cambodia and Viet Nam. Mr. Kim Sour. Editor: Dr. John. C. Pernetta This publication has been prepared as a collaborative document of the Regional Task Force on Legal Matters of the UNEP/GEF Project entitled Reversing Degradation Trends in the South China Sea and Gulf of Thailand. For citation purposes this document may be cited as: UNEP Review of the Legal Aspects of Management in the South China Sea and Gulf of Thailand. UNEP/GEF/SCS Technical Publication No. 9.

3 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT Table of Contents PREFACE...III PART I REVIEW OF OBLIGATIONS CONCERNING REGIONAL CO-OPERATION UNDER GLOBAL ENVIRONMENTAL CONVENTIONS... 1 STATUS OF INTERNATIONAL ENVIRONMENTAL CONVENTIONS IN THE SOUTH CHINA SEA AREA... 1 CONVENTIONS RELATED TO BIOLOGICAL DIVERSITY... 1 INTERNATIONAL CONVENTIONS AND AGREEMENTS RELATED TO FISHERIES... 3 CONVENTIONS RELATED TO MARINE POLLUTION... 4 OBLIGATIONS REGARDING REGIONAL CO-OPERATION UNDER GLOBAL CONVENTIONS... 6 REGIONAL CO-OPERATION ON CONSERVATION AND SUSTAINABLE MANAGEMENT OF BIOLOGICAL DIVERSITY... 6 CO-OPERATION THROUGH INTERNATIONAL AND REGIONAL ORGANISATIONS... 6 REGIONAL ARRANGEMENTS AND NEGOTIATIONS... 8 REGIONAL CHANNELS... 8 REGIONAL CENTRES... 8 REGIONAL CO-OPERATION ON CONSERVATION AND SUSTAINABLE MANAGEMENT OF FISHERIES... 9 THROUGH SUB-REGIONAL, REGIONAL AND INTERNATIONAL ORGANISATIONS... 9 ESTABLISHMENT OF REGIONAL AND SUB-REGIONAL FISHERIES ORGANISATIONS REGIONAL PROGRAMMES REGIONAL CO-OPERATION ON PREVENTION, REDUCTION AND CONTROL OF POLLUTION DIRECTLY OR THROUGH INTERNATIONAL/REGIONAL ORGANISATIONS OR DIPLOMATIC CONFERENCE REGIONAL PROGRAMMES OF ACTION OR JOINT ACTION PLANS REGIONAL CENTRES FUTURE COURSE OF ACTION...13 PART II REVIEW OF REGIONAL AND SUB-REGIONAL AGREEMENTS AND SOFT LAWS ON MARINE ENVIRONMENT IN THE SOUTH CHINA SEA INTRODUCTION REGIONAL AND SUB-REGIONAL AGREEMENTS AND SOFT LAWS ENVIRONMENTAL CO-OPERATION AMONG SOUTHEAST ASIAN COUNTRIES REGIONAL AND SUB-REGIONAL PROGRAMMES AND PROJECTS UNEP/GEF SOUTH CHINA SEA PROJECT PEMSEA SOUTH CHINA SEA INFORMAL WORKING GROUP ASIAN DEVELOPMENT BANK - ENVIRONMENT PROGRAMME SOUTHEAST ASIAN PROGRAMME IN OCEAN LAW, POLICY AND MANAGEMENT (SEAPOL) UNEP EAST ASIAN SEAS ACTION PLAN IOC SUB-COMMISSION FOR THE WEST PACIFIC REGION ASEAN ENVIRONMENT PROGRAMME FOOD AND AGRICULTURE ORGANISATION (FAO) PROGRAMMES CONCLUSIONS PART III COMPARATIVE ANALYSIS OF NATIONAL LEGISLATION ON THE COASTAL AND MARINE ENVIRONMENT GENERAL STATUS OF ENVIRONMENTAL LEGISLATION HIERARCHICAL STRUCTURE OF LEGISLATION i

4 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT REVIEW OF INSTRUMENTS AND MECHANISMS UTILISED TO PROTECT THE MARINE ENVIRONMENT LEGALLY-MANDATED INSTRUMENTS AND MECHANISMS Economic incentives Economic disincentives Systems of licences and permits...33 Certification Programmes Designation of protected areas and land-use planning NON-LEGALLY BINDING AND POLICY INSTRUMENTS LOCAL PRACTICES AND KNOWLEDGE INSTITUTIONAL ARRANGEMENTS ENFORCEMENT MECHANISMS AND COMPLIANCE ANALYSIS LACK OF STRONG ENFORCEMENT AND EFFECTIVE IMPLEMENTATION SECTORIAL FRAGMENTATION AND LACK OF INTER-AGENCY CO-ORDINATION LACK OF POLITICAL WILL CONCLUSIONS AND RECOMMENDATIONS ii

5 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT REVIEW OF LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT IN THE SOUTH CHINA SEA AND GULF OF THAILAND PREFACE The margins of the South China marine basin have experienced high rates of economic growth and rapid urbanisation over the past five decades. Each country has actively and in certain respects very successfully pursued a goal of economic development sometimes at the expense of environmental quality. Industrialisation, urbanisation, and population growth along the coastlines are the main driving forces of marine environmental degradation in the South China Sea. According to the UNEP/GEF South China Sea, Transboundary Diagnostic Analysis (TDA), approximately 69% of the original mangrove forest area was destroyed during the past century 1. Serious land-based pollution is generated by coastal industrial activities and has resulted in the increasing occurrence of red tides in some parts of the marine basin. The three most important environmental concerns identified in the TDA are: loss and degradation of coastal habitats; over-exploitation of living marine resources; and land-based pollution 2. The environmental degradation of the South China Sea has significant transboundary implications due to the ecological interdependence of sub-basins and the sea s globally significant biological diversity; and poses a serious challenge to the sustainable development of the littoral countries. Legal instruments play a key role in ensuring the sustainable management of coastal habitats, preventing marine pollution, and prohibiting certain fishing activities, which threaten the marine environment of the South China Sea. Recognising the importance of the legal issues in marine environmental management, the Project Steering Committee of the UNEP/GEF South China Sea Project created a Regional Task Force on Legal Matters in 2003 to strengthen the legal aspects of the project. The Task Force took a gradual approach to exploring possible ways to strengthen the legal aspects of the project, by first reviewing signatory states obligations for regional co-operation under major global environmental conventions. In considering the countries existing obligations for regional co-operation, the Task Force collectively reviewed the status of existing regional cooperative mechanisms and instruments, including regional agreements and soft laws, and suggested that great potential exists for countries bordering the South China Sea to strengthen regional co-operation on marine environmental management. The Task Force further reviewed national legislation, and conducted a comparative analysis of national environmental legislation regarding major issues/themes of interest, and to identify strengths and weaknesses of national legislation so that countries with a less well developed legislative base could derive lessons from countries with more comprehensive legislation. This report is a compilation of the regional outputs of the Task Force since 2003 and is presented in three parts: a review of the obligations of signatory states regarding regional co-operation on environmental protection; a review of regional and sub-regional agreements and soft laws regarding environmental protection with relevance to the South China Sea; and a comparative analysis of the national legislation of the seven countries bordering the South China Sea that are participating in the UNEP/GEF Project. Sulan Chen, Bangkok, September Talaue-McManus, L Transboundary Diagnostic Analysis for the South China Sea. East Asian Seas/Regional Coordinating Unit Technical Report Series No. 14. UNEP, Bangkok, Thailand. Ibid. iii

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7 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT 1 PART I REVIEW OF OBLIGATIONS CONCERNING REGIONAL CO-OPERATION UNDER GLOBAL ENVIRONMENTAL CONVENTIONS STATUS OF INTERNATIONAL ENVIRONMENTAL CONVENTIONS IN THE SOUTH CHINA SEA AREA Regional co-operative mechanisms and activities for environment protection need to be strengthened in order to reverse current degradation trends in the South China Sea. Until recently, mechanisms for regional co-operation in the area were neither extensive nor, well developed. Existing environmental co-operation has developed mainly through the work of international and regional organisations such as ASEAN, FAO, UNEP and IOC-WESTPAC. The South China Sea littoral countries have however, demonstrated their willingness to co-operate in environmental protection by signing and ratifying many international environmental conventions, protocols, and agreements. Table 1 summarises the status in terms of signature and/or ratification/accession of countries bordering the South China Sea Project to various multilateral environmental agreements that are relevant to the objectives of the UNEP/GEF South China Sea Project. The international environmental conventions provide a basis for the establishment of regional co-operative mechanisms that might enhance marine environment protection, and assist countries to address regional marine environmental problems. The 1972 United Nations Conference on the Human Environment held in Stockholm and its Stockholm Declaration were catalysts in the development of a range of global initiatives to protect and preserve the environment. Although sovereignty and development were still considered priorities in relation to environmental protection by national governments, this event largely contributed to raising environmental awareness among top national leaders. It was only following this conference, during the 1970s that the South China Sea countries increased their level of participation in international conventions related to biological diversity, pollution and fisheries. Conventions Related to Biological Diversity The concept of biological diversity originated in the early 1920s in the field of ecology, and its originators defined it in terms of numbers of species 3. The term biological diversity is now used to encompass diversity at three levels: genetic; species; and ecosystem diversity. These three levels are interconnected and should be considered as indivisible parts of what we consider to be biological diversity in the modern sense. The approach of international conventions to the protection of biological diversity can be also categorised as responses to protection of diversity at these three levels with approaches involving conservation or protection of species and/or habitats and ecosystems 4. There are a number of international conventions relevant to the protection of biological diversity in the South China Sea. The three most important of, which are: The 1992 Convention on Biological Diversity (CBD), The 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and The 1971 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention). The 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage is also relevant to the protection of biological diversity. The 1982 UN Convention on the Law of the Sea (UNCLOS) is the most comprehensive convention relating to all aspects of the marine environment. Regulations on the protection of marine biological diversity focus on living marine resources, mainly related to fisheries. Provisions concerning the conservation and utilisation of living marine resources and fishery are found mainly in Parts V and VII of the Convention, within the provisions on the Exclusive Economic Zone (EEZ) and High Seas, and in Part XII on Protection and Preservation of the Marine Environment. As of November 2007, there were 155 Contracting Parties to the Convention and with the exception of Cambodia and Thailand, all other countries bordering the South China Sea have either or to the Convention. 3 4 Elliott A. Norse, ed Global Marine Biological Diversity: A Strategy for Building Conservation into Decision Making. Washington DC: Island Press. Ben Boer, Ross Ramsay and Donald R. Rothwell International Law in the Asia Pacific. London: Kluwer Law International.

8 2 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT Table 1 Status of Multilateral Agreements in the South China Sea area, as of November (in reverse chronological order) Multilateral Agreement Open for Signature 1 Stockholm Convention on Persistent Organic Pollutants (2001) May May United Nations Convention to Combat Desertification in Oct Those Countries Experiencing Serious Drought and/or Oct Desertification, Particularly in Africa (1992) 3 United Nations Framework Convention on Climate June Change (UNFCCC) (1992) June Kyoto Protocol to the UNFCCC (1997) Mar Mar Convention on Biological Diversity (CBD) (1992) June June Basel Convention on the Control of Transboundary Mar Movements of Hazardous Wastes and Their Disposal Mar (1989) Entry into Status of Ratification by the Countries bordering the South China Sea Force Cambodia China Indonesia Malaysia Philippines Thailand Viet Nam Brunei Singapore 17/05/04 25/08/06 13/08/04 23/05/01 16/05/02 27/02/04 31/01/05 22/07/02 21/05/02 24/05/05 signed signed signed 26-Dec-96 08/08/97 18/02/97 31/08/98 25/06/97 10/02/00 07/03/01 25/08/98 04/12/02 26/04/99 21-Mar-94 18/12/95 15/02/05 22/08/02 29-Dec-93 09/02/95 05-May-92 02/03/01 7 The Convention for the Protection of the Ozone Layer (Vienna Convention) (1985) Mar Mar /11/99 27/06/01 8 Montreal Protocol on Substances that Deplete the Sept Jan-89 27/06/01 Ozone Layer (1987) Sept UN Convention on the Law of the Sea (1982) July Nov-94 N.A. Dec signed 10 Agreement Relating to the Implementation of Part XI of 28-Jul-96 N.A. the Convention signed 11 International Convention for the Prevention of Annex I June Oct-83 28/11/94 Pollution from Ships, 1973, As Modified by the &II May 1979 Protocol of 1978 Relating Thereto (MARPOL Annex III 04-Jun-87 28/11/ /1978) Annex 31-Dec-88 28/11/94 IV Annex 01-Jul-92 28/11/94 V 12 Convention on International Trade in Endangered Mar Jul-75 04/07/97 Species of Wild Fauna and Flora (CITES Convention) Dec (1973) 13 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) (1972) 14 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (RAMSAR) (1971) 15 Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) Dec Dec Aug-75 No accession 05/01/93 30/08/02 approval 05/01/93 17/12/91 23/08/94 03/12/04 23/08/94 20/09/93 11/09/89 26/06/92 14/06/91 26/06/92 07/06/96 03/02/86 07/06/96 02/06/00 01/07/83 21/10/86 13/09/94 No accession No No accession accession 21/11/88 No accession 08/01/81 28/12/78 14/11/85 No accession 13/07/94 04/09/02 24/06/94 08/10/93 29/8/89 29/8/89 14/10/96 14/10/96 31/01/97 No accession No accession 31/01/97 20/10/77 No accession 02/08/94 20/11/03 08/10/93 21/10/93 17/07/91 17/07/91 08/05/84 23/07/97 15/06/01 15/06/01 15/06/01 15/06/01 18/08/81 10/08/ /12/94 28/08/02 29/01/04 24/11/97 07/07/89 07/07/89 N.A. signed N.A. signed No accession No accession No accession No accession 21/01/83 No accession 16/11/94 25/09/02 16/11/94 13/03/95 26/01/94 26/01/94 25/07/94 27/04/06 consent 29/05/91 No accession No accession No accession 20/01/94 No accession 07/08/07 N.A. signed N.A. signed 16/12/02 26/07/90 27/05/93 5/11/ /11/96 23/10/86 No accession No accession No accession 04/5/1990 No accession Feb Present 21-Dec-75 23/10/99 31/07/92 08/08/92 10/03/95 08/11/94 13/09/98 20/01/89 No accession 17/10/72 17-Dec-75 28/11/91 12/12/85 06/07/89 07/12/88 19/09/85 17/09/87 19/10/87 No accession 29/05/97 12/04/06 21/12/95 02/01/96 05/01/89 05/01/89 17/11/94 17/11//94 1/11/90 02/03/94 No accession 27/05/99 30/11/86 No accession No accession No accession

9 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT 3 Convention on Biological Diversity (1992). This is the most comprehensive convention on biological diversity. It includes measures to conserve and protect species, genetic, habitat and ecosystem diversity. It was open for signature at the UN Conference on Environment and Development (UNCED) at Rio de Janeiro in June 1992 until June 1993 and came into force on December 29, As of November 2007, there were 1,910 parties to the Convention. All countries bordering the South China Sea have become parties to the CBD with the exception of Brunei. Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973). The CITES convention was an international effort to protect endangered or threatened species by regulating trade in the species and/or products derived from them. It was open for signature from March 1973 to December 1974 and entered into force on July 1, CITES principal feature is the creation of a permit system that bans, restricts or controls international trade in endangered or threatened species, which are listed in its three Appendices. Currently, it has 160 Contracting Parties and all of the South China Sea littoral countries have either or to this Convention. Convention on Wetlands of International Importance especially as Waterfowl Habitat (1971). The Ramsar Convention was designed to protect a specific type of habitat, i.e. wetlands, which it considers have fundamental ecological functions of wetland as regulators of water regime and as habitats supporting a characteristic flora and fauna, especially as waterfowl. Wetlands, as defined in the Convention, include areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres (Article 1). The Ramsar Convention was open for signature in February 1971 and has remained open for signature indefinitely since then. It entered into force on December 21, 1975 and currently has 157 states parties. Except for Brunei and Singapore, all the riparian countries of the South China Sea have either or to the Convention. The Ramsar Convention seeks to conserve and protect wetlands by establishing and maintaining a List of Wetlands of International Importance, namely the Ramsar List. Each Contracting Party is obliged to designate suitable wetlands within its territory for inclusion in the Ramsar List (Article 2). Wetlands are selected for inclusion in the Ramsar List based on their international significance in terms of ecology, botany, zoology, limnology or hydrology. Most importantly, wetlands of international importance to waterfowl at any season should be included. As of November 2007, there were a total of 1,678 Ramsar sites worldwide. Forty-two Ramsar sites are located in the South China Sea countries with a total area of 3,334,513ha. Among them, 10 sites with a total area of around 315,992 hectares 5 are situated along the South China Sea coast and include a marine component. Convention Concerning the Protection of the World Cultural and Natural Heritage (1972). This Convention is designed to protect the world s cultural and natural heritage through protection of sites with outstanding universal value 6. Cultural heritage refers to monuments, groups of buildings and sites with historical, aesthetic, ethnological or anthropological value (Article 1). Natural heritage includes outstanding physical, biological, and geological features; habitats of threatened plants or animal species and areas of value on scientific or aesthetic grounds or from the point of view of conservation (Article 2). The General Conference of UNESCO adopted the Convention in It entered into force on December 17, As of November 2007, there were 184 Contracting Parties. All the countries in the South China Sea region except Brunei and Singapore have either or to the Convention. Like the CITES and Ramsar Conventions, the World Heritage Convention maintains a World Heritage List and assists in the protection of sites on the list by allocating the financial resources of the World Heritage Fund. The countries around the South China Sea have a total of 50 world heritage sites in the List, with China alone supporting 28 sites. International Conventions and Agreements Related to Fisheries The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides for the regulation of coastal and high seas fishing (Part V and VII). No article in the UNCLOS addresses mariculture since such activities are mainly conducted within the territory or territorial seas of nation states. However, the existing international legal regime takes no account of the fact that aquaculture has been identified as the main reason for the loss of globally significant mangrove habitat around the South China Sea 7 and is a major source of transboundary pollution Data are compiled from and Talaue-McManus, L Transboundary Diagnostic Analysis for the South China Sea.

10 4 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, hereafter, the UN Fish Stocks Agreement, was adopted in 1995 by the United Nations General Assembly. The agreement entered into force on December 11, None of the South China Sea countries have signed or to the agreement. The 1995 FAO Code of Conduct for Responsible Fisheries further defines those measures to be taken to sustain fishery for the provision of nutritional and economic benefits for human beings. The code is voluntary. However, certain parts of it are based on relevant rules of international law, including those reflected in the UNCLOS. This Code sets out 19 principles, including effective conservation and management of living aquatic resources; maintenance of the quality, diversity and availability of fishery resources; prevention of over fishing and excess fishing capacity; scientific conservation and management decisions for fisheries etc. The Code establishes international standards of behaviours for responsible practices with a view to ensuring the effective conservation, management and development of living aquatic resources, with due respect for the ecosystem and biological diversity. The ASEAN SEAFDEC Guidelines for Responsible Fisheries in Southeast Asia provide guidance regarding the implementation of the provisions of the Code of Conduct. Conventions Related to Marine Pollution Marine pollution is derived from three main sources: from ships; from dumping at sea; and from landbased sources. Land-based pollution is currently the major source of marine pollution accounting for in excess of 80% of the total load of contaminants and pollutants entering the ocean. In the early 1970s, the sources of marine pollution and their share in percentage were quite different: ship-based (35%); land-sourced (54%); and other marine sources (11%). 8 The share of land-based pollution has been rising since then. By 1992, according to Agenda 21, land-based activities contributed 70 percent of the pollution, entering the oceans through the atmosphere and rivers. By the mid-1990 s; ships and dumping at sea each contributed around 10 percent of total ocean pollution. The development of international conventions on marine pollution was originally a response to the inadequacy of international laws to deal with large accidental oil spills. In 1967, the tanker Torrey Canyon ran aground while entering the English Channel and spilled her entire cargo of 120,000 tonnes of crude oil into the sea. This resulted in the biggest oil pollution incident recorded up to that time ( The accident raised international concerns about oil pollution leading to the development of various international conventions on marine pollution. Nearly all of the parts of the UNCLOS Convention contain provisions making reference to the protection of the marine environment while Part XII specifically deals with the protection and preservation of the marine environment. It states as the first article in Part XII that States have the obligation to protect and conserve marine environment. (Article 192). Accordingly, States shall take all necessary measures to prevent, reduce and control pollution of the marine environment from any source. UNCLOS provided general rules to prevent, reduce and control pollution from land-based sources (Article 207), seabed activities subject to national jurisdiction (Article 208), activities in the high sea area (Article 209), dumping (Article 210), vessels (Article 211), and atmosphere (Article 212). International Convention for the Prevention of Pollution from Ships, 1973, As Modified by the Protocol of 1978 Relating Thereto (MARPOL 1973/1978). The 1973 MARPOL Convention is designed to prevent pollution of the marine environment by prohibiting and limiting the discharge of harmful substances or effluents. Since the 1973 MARPOL had not entered into force after five years of its adoption, the 1978 Protocol was adopted to allow more time and flexibility for the countries to implement the Convention. The Protocol allowed States to become Party to the Convention by first implementing Annex I (oil), as it was decided that Annex II (chemicals) would not become binding until three years after the Protocol entered into force and that Annexes III, IV and V are voluntary for the states. The combination of the 1973 MARPOL and the 1978 Protocol results in the commonly known MARPOL 1973/ R. Michael M Gonigle and Mark W. Zacher Pollution, Politics and International Law. Berkeley: University of California Press.

11 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT 5 The Annexes to the Convention specifically address pollution by oil (Annex I), noxious liquid substances in bulk (Annex II), harmful substances carried by sea in packaged forms, or in freight containers, portable tanks or road and rail tank wagons (Annex III), sewage from ships (Annex IV), and garbage from ships (Annex V). The combined instrument, known as MARPOL 73/78, was open for signature from June 1978 to May The five Annexes of MARPOL entered into force as follows: Annexes I, & II (October 2, 1983), Annex III (June 4, 1987), Annex IV (December 31, 1988) and Annex V (July 1, 1992). Except for Thailand, all the South China Sea littoral countries have to MARPOL 73/78 Annex I and II. Additionally, Cambodia and Philippines have also to the three voluntary annexes; Malaysia has to Annex V; and China and Singapore have to Annexes III and V. The International Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (1972). The 1972, London Convention is an international instrument directly designed to prohibit and limit marine pollution through dumping at sea. The main purpose of the London Convention is to ensure that all practicable steps are taken to prevent pollution of the sea by the dumping of waste, or the dumping of matter that is liable to create hazards to human health, or to harm living resources and marine life (Article I). The London Convention was open for signature from December 1972 to December 1973, and entered into force on August 30, As of November 2007, 86 countries had either or to the Convention but only China and Philippines have to, and the convention respectively. Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal (1989). The Basel Convention regulates the transboundary movement of hazardous wastes and materials. A central goal of the Basel Convention is environmentally sound management (ESM), the aim of which is to protect human health and the environment by minimising hazardous waste production whenever possible. The Convention also regulates the export and import of these wastes, and ensures that the exporter should notify and obtain permission from the states of import, and those states through which the hazardous wastes are to transit. The Basel Convention was open for signature from March 1989 to March 1990 and entered into force on May 5, As of November 2007, there were 170 Contracting Parties to the Convention and with the exception of Brunei, all other countries in the region have either or to the Convention. Stockholm Convention on Persistent Organic Pollutants (2001). This recently adopted convention is designed to protect human health and the environment from persistent organic pollutants (POPs). It includes measures to reduce and eliminate release from production and use. Specific measures are provided in the Convention to control POPs listed in Annexes A, B and C. Annex A is a list of chemicals whose production and use should be eliminated, and import and export of the Annex A chemicals should be also prohibited. Annex B lists the chemicals whose production and use should be restricted in accordance with the provisions in the Convention. For Annex C chemicals, each party shall take measures to reduce the total releases of such chemicals, with the goal of minimising and ultimately eliminating their use. The Convention was open for signature from May 2001 to May 2002 and entered into force on 17 th May As of November 2007, there were 149 Contracting Parties for the Convention. All the South China Sea countries have signed the Convention and instruments of ratification have been lodged by all countries except Brunei, Indonesia and Malaysia. The Global Environment Facility (GEF) serves as the financial mechanism for this Convention. The 1995 Global Program of Action for the Protection of the Marine Environment from Land-based Pollution (GPA/LBA) is not an international convention but a global programme adopted internationally through the Washington Declaration, during the inter-governmental conference in Washington DC October 23-November 3, Indonesia, Malaysia, Philippines and Thailand participated in the conference and adopted the GPA/LPB, which was designed to provide sources of conceptual and practical guidance to be drawn upon by national and/or regional authorities for devising and implementing sustained action to prevent, reduce, control and/or eliminate marine degradation from land-based activities (Paragraph 14).

12 6 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT OBLIGATIONS REGARDING REGIONAL CO-OPERATION UNDER GLOBAL CONVENTIONS International environmental conventions provide a global framework for countries to conserve and sustainably manage biological diversity and fisheries, and to prevent, reduce and control pollution. They establish a comprehensive system of goals and objectives for signatory states, and encompass a variety of obligations on countries to co-operate regionally and globally in meeting the primary goals of the conventions. Efforts to establish global environmental standards are unlikely to meet with great success because of the great variation in the issues, problems and needs of individual countries and regions. However, in a semi-enclosed marine area, such as South China Sea, environmental problems can easily spill over national boundaries, or the impacts of one country s actions may directly and adversely affect the resource base of their neighbours, and standards are more easily defined and adopted. A regional, co-operative approach to harmonise national actions and policies affecting shared, common resources is therefore mutually advantageous. The relatively small number of countries bordering the South China Sea and its semi-enclosed nature enhance the possibility of co-operation in harmonising national policies, activities and standards in the region. Existing international environmental conventions imply three main categories of obligation on the part of states parties, in addition to which some specific obligations and measures are particular to individual conventions. The three main categories of obligations are: 1) To conserve environment and natural resources under their jurisdiction; 2) To assess potential, and monitor actual, environmental impacts; 3) To co-operate with states and other actors on protecting the environment both within and beyond areas of national jurisdiction. Regional Co-operation on Conservation and Sustainable Management of Biological Diversity The conservation of biological diversity necessitates co-operation at all levels and the CBD, for example in its preamble, stresses the importance of co-operation at international, global and regional levels among states, intergovernmental organisations and non-governmental sectors for the conservation of biological diversity and the sustainable use of its components. At the regional level, a variety of co-operative mechanisms and activities concerning the conservation and sustainable use of biological diversity have been promoted by the global conventions. Regional co-operative mechanisms specifically referred to in multilateral environmental agreements include: Existing international and regional organisations; Regional arrangements and negotiations; Regional channels; and, Regional centres. Table 2 summarises the specific articles referring to co-operative mechanisms and activities on biological diversity and fisheries under each convention. 9 Co-operation through international and regional organisations States shall co-operate on a global basis and, as appropriate, on a regional basis, directly or through competent international organisations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features. (UNCLOS Article 197) 9 Biological diversity and fisheries are combined into one table because many provisions in UNCLOS have implications to both biological diversity (marine living resources) and fisheries. Fishery is considered as part of marine living resources in the UNCLOS.

13 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT 7 Table 2 Regional Co-operative Mechanisms and Activities under Global Conventions. (Biological Diversity and Fisheries) 1. Through international and regional organisations 1.1 Formulate and elaborate international rules, standards and recommended practices and procedures Article Co-ordinate the management, conservation, exploration of the living resources of the sea Article 123 (a) 1.3 Co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the Article 123 (b) marine environment 1.4 Co-ordinate scientific research policies and undertake joint programmes of scientific research in the area Article 123 (c) 1.5 Exchange information and data Article 119, Agree upon measures to co-ordinate and ensure the conservation and development of stocks 1.7 Conserve highly migratory species, anadromous stocks and catadromous species 2. Regional Agreements or Negotiations 2.1 Promote notification, exchange of information and consultation 2.2 Take measures necessary for the conservation of living resources 3. Regional Channels UNCLOS CBD RAMSAR CITES WHC Article 63 Article 64 Article 66 Article 67 Article 118 Article 14.1 (c) 3.1 Transfer financial assistance Article Regional Centres 4.1 Stimulate and advance the conduct of marine scientific research and foster the transfer of marine technology Article Establish training and education programmes Article 277(a) 4.3 Promote management studies and study programmes Article 277 (b) related to marine environment (c) 4.4 Organize regional conferences, seminars and symposia Article 277 (d) 4.5 Acquire and process marine scientific and technological data and information Article 277(e) 4.6 Prompt dissemination of results of research Article 277 (f) 4.7 Publicise national policies and conduct systematic comparative study of those policies Article 277 (g) 4.8 Compile and Systemize information Article 277 (h) 4.9 Promote technical co-operation Article 277 (i) 5. Regional Programmes/Action Plans 5.1 Facilitate marine scientific research Article 270 Article Transfer marine technology and international funding Article 270 Article Establishment of Regional and Sub-regional Fisheries Organisations Article Co-ordinate activities of states Article 118 Article 5(e) UNCLOS Article123 requires, states bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under the UNCLOS. To this end they shall endeavour, directly or through an appropriate regional organisation: (a) (b) (c) (d) To co-ordinate the management, conservation, exploration and exploitation of the living resources of the sea; To co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; To co-ordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; To invite, as appropriate, other interested States or international organisations to co-operate with them in furtherance of the provisions of this article.

14 8 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT UNCLOS Article 200 further provides that states: shall co-operate, directly or through competent international organisations, for the purpose of promoting studies, undertaking programmes of scientific research and encouraging the exchange of information and data acquired about pollution of the marine environment. They shall endeavour to participate actively in regional and global programmes to acquire knowledge for the assessment of the nature and extent of pollution, exposure to it, and its pathways, risks and remedies. Regional Arrangements and Negotiations CBD outlines the necessity for regional arrangements to address biological diversity with transboundary significance, stating that: states shall promote, on the basis of reciprocity, notification, exchange of information and consultation on activities under their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other States or areas beyond the limits of national jurisdiction, by encouraging bilateral, regional or multilateral arrangements, as appropriate. (Article 14(c)) CBD does not specify what regional arrangements shall be built. Regions with shared ecosystems shall, therefore, set up appropriate arrangements based on specific regional needs. UNCLOS (Article 118) provides that: states shall co-operate with each other in the conservation and management of living resources in the areas of the high seas. States, whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, co-operate to establish sub-regional or regional fisheries organisations to this end. Regional Channels Financial resources are essential to the conservation of biological diversity. Therefore, it is essential to ensure the financial assistance is provided by developed countries to developing countries. CBD stipulates that the financial assistance be transferred through bilateral, regional or other multilateral channels (Article 20). Again, CBD does not clarify what kinds of regional channels shall be utilized but at the global level the Global Environment Facility exists as the financial mechanism of the Convention. Regional Centres UNCLOS advocates the establishment of regional centres, as follows: States shall promote the establishment of regional marine scientific and technological research centres, particularly in developing States, in order to stimulate and advance the conduct of marine scientific research by developing States and foster the transfer of marine technology. All States of a region shall co-operate with the regional centres therein to ensure the more effective achievement of their objectives. (Article 276) UNCLOS Article 277 further specifies the functions of such regional centres, which include, inter alia: (a) Training and educational programmes at all levels on various aspects of marine scientific and technological research, particularly marine biology, including conservation and management of living resources, oceanography, hydrography, engineering, geological exploration of the seabed, mining and desalination technologies; (b) Management studies; (c) Study programmes related to the protection and preservation of the marine environment and the prevention, reduction and control of pollution; (d) Organisation of regional conferences, seminars and symposia;

15 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT 9 (e) Acquisition and processing of marine scientific and technological data and information; (f) Prompt dissemination of results of marine scientific and technological research in readily available publications; (g) Publicizing national policies with regard to the transfer of marine technology and systematic comparative study of those policies; (h) Compilation and systematization of information on the marketing of technology and on contracts and other arrangements concerning patents; (i) Technical co-operation with other States of the region. To ensure that effective measures are taken for the conservation and protection of world cultural and natural heritages, the WHC states that each country shall endeavour to foster the establishment and development of national and regional centres for training in the protection, conservation and presentation of world cultural and natural heritages and to encourage scientific research studies (Article 5). The World Heritage Committee should play an important role assisting countries in this endeavour. According to the WHC, the World Heritage Committee may also provide international assistance to national and regional centres for the training of staff and specialists at all levels in the field of identification, protection, conservation, presentation and rehabilitation of the cultural and natural heritage. (Article 23) Regional Co-operation on Conservation and Sustainable Management of Fisheries Due to the interdependence of stocks, co-operation among countries is essential to the management of fish stocks in order to ensure sustainable fishing. UNCLOS requires that: States shall co-operate with each other in the conservation and management of living resources in their shared waters and the areas of the high seas. States, directly or through competent international organisations, shall promote international co-operation at all levels, particularly at the regional, sub-regional and bilateral levels. (Article 268 (e)) Regional co-operative mechanisms suggested by UNCLOS include through existing sub-regional, regional and international organisations, establishing regional and sub-regional fisheries organisations, and developing joint programmes. Many provisions reviewed under part 2.1 also have significant implications for the conservation and sustainable use of fishery resources. 10 Through Sub-regional, Regional and International Organisations International organisations, whether sub-regional, regional or global, are important channels for fishery co-operation. UNCLOS provides that: available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organisations, whether sub-regional, regional or global, where appropriate and with participation by all States concerned. (Article 119) UNCLOS also obliges countries to co-operate on the management of the same stock or stocks of associated species occurring within the EEZs of two or more coastal States, or both within the EEZ and in an area beyond and adjacent to it. These concerned States shall seek, either directly or through appropriate sub-regional or regional organisations, to agree upon the measures necessary to co-ordinate and ensure the conservation and development of the stocks. (Article 63) Concerned states shall co-operate on the conservation of highly migratory species (Article 64), anadromous stocks (Article 66) and catadromous species (Article 67) through international organisations, where appropriate. When no international organisation exists in the region, the concerned States shall co-operate to establish such an organisation. (Article 67) 10 UNCLOS Article 118, 123, 276, 277 etc.

16 10 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT Establishment of Regional and Sub-regional Fisheries Organisations UNCLOS stipulates that regional and sub-regional fisheries organisations shall be established to coordinate the activities of States whose nationals exploit identical living resources, or different living resources in the same area of the high sea (Article 118). Regional Programmes International co-operation for the development and transfer of marine technology shall be carried out, where feasible and appropriate, through existing bilateral, regional or multilateral programmes, and also through expanded and new programmes in order to facilitate marine scientific research, the transfer of marine technology, particularly in new fields, and appropriate international funding for ocean research and development. (Article 270) In the field of transfer of marine technology, states shall endeavour to ensure that competent international organisations co-ordinate their activities, including any regional or global programmes, taking into account the interests and needs of developing States, particularly land-locked and geographically disadvantaged States. (Article 272) Regional Co-operation on Prevention, Reduction and Control of Pollution International conventions have suggested a variety of regional co-operative mechanisms and regional co-operative activities to prevent, reduce and control pollution. Regional co-operative mechanisms provided by international environmental conventions related to marine pollution include: Directly or through international/regional organisations or diplomatic conference; Joint regional programmes/action plans; Regional centres and other arrangements; Regional agreements Table 3 identifies the specific articles, from each of the conventions, on the obligations for regional cooperation on prevention, reduction and control of pollution. Directly or through international/regional organisations or diplomatic conference International conventions have obliged the Contracting Parties to undertake the following regional activities through international or regional organisations: Formulation and elaboration of international rules, standards, and recommended practices and procedures; UNCLOS states that: states shall co-operate on a global basis and, as appropriate, on a regional basis, directly or through competent international organisations, in formulating and elaborating international rules, standards and recommended practices and procedures for the protection and preservation of the marine environment, taking into account characteristic regional features. (Article 197) Specifically, States, acting through competent international organisations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources (Article 207), from sea-bed activities subject to national jurisdiction (Article 208), from pollution by dumping (Article 210), and pollution from or through the atmosphere (Article 212).

17 LEGAL ASPECTS OF ENVIRONMENTAL MANAGEMENT 11 Table 3 Regional Co-operative Mechanisms and Activities under Global Conventions. (Marine Pollution) 1. Through international or regional organisations 1.1. Formulation and elaboration of international rules, standards and recommended practices and procedures 1.2. Development, implementation and updating of implementation plans 2. Regional conventions/agreements/ arrangements UNCLOS Article 197, 207, 208, 210, 212 Stockholm Convention Article 7.2 Basel Convention MARPOL London Convention GPA/LBP Article 11 Para Develop harmonised procedures Article Co-operate in monitoring and scientific research Article Identify and assess problems Para. 30.a 2.4. Establish targets and priorities for action Para. 30.b 2.5. Develop and establish management approaches and processes Para. 30.c 2.6. Develop and implement strategies to mitigate and remedy land-bases sources of harm Para. 30.d 2.7. Establish and strengthen regional information networks and linkages for communications Para. 32.c 3. Regional programme of action or joint action plans 3.1. Studies, research programmes and exchange of information and data Article Identification, characterisation and assessment of pollutants or other problems Article 5(a) Para. 30.a 3.3. Harmonise environment standards and agree on requirements for reliable monitoring and assessment Para. 33.a of marine environment 3.4. Consider steps to protect critical habitats and endangered species Para. 33.b 3.5. Explore innovative financing mechanisms Para. 33.c 3.6. Build regional capacity and identify regional centres Para. 33.d 3.7. Ensure decision-making at the regional level be based on an integrated planning and management Para. 33.e approach 3.8. Establish linkages with other regional and subregional arrangements and mechanisms Para. 33.f 4. Regional centres 4.1. Provide capacity building, technical assistance and promote the transfer of technology Article Provide training Article 14 Development, implementation and updating of implementation plans; The Stockholm Convention provides that: states shall co-operate directly or through global, regional and sub-regional organisations, and consult their national stakeholders, including women s groups and groups involved in the health of children, in order to facilitate the development, implementation and updating of their implementation plans. (Article 7) Regional conventions, agreements or other arrangements Since international conventions are designed to set objectives and procedures to address environmental problems in a global setting, the provisions are sometimes inadequate to address specific regional problems. The Basel and London Conventions, therefore, suggest that Contracting Parties reach regional agreements, providing that the regional agreements shall be consistent with, and not less environmentally sound than, related international conventions. GPA/LBP points out that regional and sub-regional co-operation and arrangements are crucial for successful actions to protect the marine environment from land-based activities, which is particularly so where a number of countries share coasts in the same marine and costal area (Paragraph 29).