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Captain Dr. Peter Heathcote[2]
Six years ago there was hardly any marine pollution legislation in Pacific Island Countries (PICs). True, some legislation and regulations existed in the Federated States of Micronesia and the Republic of the Marshall Islands, former United States Trust Territories. They had inherited various bits and pieces of United States’ environmental protection legislation, some of which addressed water quality in ports, harbours and coastal regions. However, in the South Pacific, generally speaking, there was no comprehensive regime for the prevention of marine pollution. In some countries, there might have been a prohibition against throwing rubbish over the ship’s side into the harbour, or dumping trash into the lagoon. However, even if there were some rules permitting the Harbour Master to prosecute, those rules that were in place were usually honoured in their breach rather than in compliance. There were a number of problems, one of which was the presence of evidence or lack thereof. Just who was responsible for all the waste washed up on the foreshore? Another problem was even though there was a rule or regulation who was to enforce it? The final problem was that, generally speaking, the fines were so small they were not a deterrent to the polluter, nor were they a stimulant to the prosecutor.
Up until 1996, the Regional Maritime Legal Advisor project, operating under Canadian International Development Agency (CIDA) funding, first at the Forum Secretariat and later the South Pacific Commission (SPC, which changed its name to the Secretariat of the Pacific Community, but retained the acronym), had been concentrating on revamping the various Shipping Acts within the region and developing safety regulations and regulations for vessel registration. Then, on the request of the Government of the Kingdom of Tonga, the Regional Maritime Legal Advisor (RMLA) was asked to review some marine pollution legislation that had been drafted by a consultant in 1986. This draft Bill had never been enacted. The legislation left most of the substantive provisions to be included in regulations. but no regulations were ever produced. While the legislation incorporated, by reference, MARPOL 73/78 and the London Dumping Convention (as it seemed to be known in those days) the provisions in respect of these conventions was generally, non-specific and the fines imposed (such as they were) were insignificant.
The first task in developing new legislation or improving on the existing draft was to ascertain just what Tonga wanted its marine pollution legislation to do. This involved consultation with various departments, boards, shipowners and other interested parties. The prime objective seemed to be the ‘prevention’ of pollution, and in the event there was a spill, ‘containment’ seemed to be the next priority, followed by ‘clean up’ if all else failed. There was also some suggestion that the party responsible for the damage resulting from a pollution incident should pay adequate compensation for any damage occasioned to third parties as a result of any spill. Generally, thoughts were on oil pollution at this time, although pollution from ships’ garbage came a close second. Some people were concerned about pollution from ship’s sewage, but others were concerned about the need to provide reception facilities. The consultations went on and other provisions were added.
Tonga has a Law Reform Committee, which reviews all potential legislation before it is submitted to Parliament for first reading. Among others on this committee are the Minister of Justice and Attorney-General, the Chief Justice, the Minister of Health, the Minister of Police, the Solicitor General, Senior Crown Counsel. the President of the Law Society and a number of others. Its purpose is to review any proposed legislation in detail to ensure that: (a) it will not contradict existing legislation; (b) it is appropriate to the situation in Tonga; and (c) the legislation itself contains no errors or inconsistencies. Such scrutiny usually ensures a good standard of legislative drafting. Thus, Tonga can be assured of good laws, even if the Parliamentarians are not knowledgeable about the technical details of the subject matter, nor so thorough in their perusal of the draft laws before them.
During the process of the development, the draft Bill went through several iterations, each one considered an improvement on the one before. In the draft legislation a Marine Pollution Advisory Committee was proposed, since in many PICs, the major oil companies had a great deal of information. experience and equipment for dealing with oil spills. They would often be the first line of defence. However, governments could not always rely on the oil companies to carry out an oil spill response that treated all constituents’ interests equally. There would be a role for government. The appointment of an On-Scene Commander was included in the legislation. During discussions, it was recognised that in order to contain or minimise the damage from an oil spill, action had to be prompt and effective, and that often meant the immediate expenditure or commitment of funds to deal quickly with the emergency. It was noted that Tonga (and many other PICs) did not have excess funds in reserve, just in case of an oil spill emergency. An emergency fund would have to be established to be used not only for the acquisition of materials and equipment to contain an oil spill, but also to hire human resources and special equipment to clean up after a spill. The first category of physical resources would be in place in anticipation of a spill, to minimise its effect, while the second type of materials and equipment may have to be acquired (and human resources hired) as necessary to deal with a spill and its aftermath. So who should contribute to this fund? Well, the parties that were most likely to cause oil pollution damage as a result of their activities. These would be ships and the owners of ships carrying oil for bunkers. These would be tankers and the owners of tankers carrying oil as cargo. And there would be the owners and operators of tank farms or oil storage depots close to the port area to which the tankers would load or discharge their cargoes. All three categories of users would contribute to the fund by means of a levy calculated according to volume - that being some indicator of the magnitude of the possible risk. However, the questions of how much the levy should be and the amount of money to be kept in the trust fund were recognised as policy decisions, not legal ones. It was also felt that this fund should be managed, to some extent, by the persons who were contributors. However, these industry trustees would be balanced by interests from government and perhaps those sectors, such as fisheries, that might be most affected by an oil spill. The composition of the board of trustees of such a fund was not included in the legislation, but rather left to the discretion of the Minister. So, the Prevention of Marine Pollution Act of Tonga began to take on some form and substance.
About this time, the Regional Maritime Programme (RMP) of the Secretariat of the Pacific Community (SPC) had considered replacing the South Pacific Maritime Code (SPMC). In its day it had been a useful document, but it had become increasingly obsolete as changes to SOLAS were made, and as STCW-95 drew closer to its implementation date. The SPMC was not a legal document - it said so in its Preface. It was more like a layman’s guide to five international maritime conventions. Therefore, it was decided that some model legislation that could be adopted to suit a particular country’s need would be more useful to PICs. The parallel was drawn between having a suit made to measure, where many things could go wrong before it fitted perfectly, as opposed to buying a suit ‘off the peg’, which, with a few adjustments, could be made to fit perfectly without major modifications. Small countries could not afford the luxury of individual, tailor-made legislation. Furthermore, in the Pacific region, why should the law concerning shipping administration, ship safety, marine pollution or ports be markedly different from one PIC to another? Rather than individually tailored legislation, PICs could benefit from having a uniform regional model, which could be adjusted slightly to suit a particular situation in a particular country.
A little later, the South Pacific Regional Environment Programme (SPREP) commenced development of PACPOL, a comprehensive initiative to address marine pollution, in particular pollution from shipping, throughout the Pacific Islands region. An important part of this project was to provide assistance to PICs to develop national regulatory regimes for marine pollution and to adopt and implement relevant international conventions. One of the SPREP projects was the development of Marine Pollution Legislation for Pacific Island Countries, funded by IMO and jointly undertaken by SPREP and SPC. It was decided to develop model legislation along the lines of the Prevention of Marine Pollution Act of Tonga that would provide an effective regulatory regime in each country for the protection of national marine and coastal resources from the negative impacts of marine pollution from shipping and associated activities. As a result of cooperation between SPREP and SPC, and particularly between the SPREP Marine Pollution Adviser and Legal Officer and the RMLA, work began on drafting the new legislation. The first step was to review all the existing legislation, regulations, rules and ordinances dealing with pollution of the marine environment in the 14 PICs. There was a surprising amount of material to cover, but not all current, and not all to the point.
A number of events had occurred between the drafting of the Tonga legislation and the model Marine Pollution Prevention Act. These included the coming into force of the CLC 1992 and the FUND 1992 Conventions, replacing CLC ‘69 and FUND ‘71 respectively and Annex VI to MARPOL 73/78. Some events were imminent such as the banning of certain anti-fouling paints or systems that contain organotin compounds on vessels and the prohibition of the discharge of ballast water containing non-indigenous harmful aquatic organisms and/or pathogens. Certain other changes to the London Convention were coming into force. Hence the Tonga model would have to be amended to bring it up to date and to give effect to certain aspects of the PACPOL initiative.
The regional template provides model legislation for the mythical country called ‘Pasifika’. It applies to all vessels in Pasifikan waters; all Pasifikan vessels; all aircraft over Pasifika; and all Pasifikan aircraft; as well as all potential sources of marine pollution incidents in Pasifikan territory. It covers the design and operation of vessels and limits the discharge of pollutants in accordance with MARPOL 73/78. There is a duty on the part of ships’ owners and masters to keep records and to report any discharges of pollutants. In somewhat of an anticipatory nature, it also limits the discharge of ballast water, deals with hull scrapings and cleaning, and covers the use of some types of anti-fouling paints on some categories of vessel. The draft Act requires the provision of adequate reception facilities for pollutants. It also grants powers of inspection to ensure compliance with MARPOL 73/78 and the Act. Various levels of fines are imposed, up to $250,000 in some instances. However, it must be stressed that this is merely a model or template for PICs to use in the development of their own legislation. The quantum of fines in the final national Marine Pollution Prevention Acts is at the discretion of decision-makers in these countries.
As mentioned above, there is provision for the establishment of a National Pollution Committee and the appointment of an ‘On-Scene Commander’. It requires the preparation of various Marine Spill Contingency Plans (national and local) and advocates regional co-operation along the lines of those proposed in the International Convention of Oil Pollution Preparedness, Response and Co-operation, 1990 (OPRC). The model legislation proposes the setting up of a National Marine Pollution Fund to be available to spend or commit funds at once, in the case of an emergency. Funds would be raised by means of Marine Pollution Levies charged on various potential polluters, but expected to be ships carrying bunkers, tankers carrying pollutants as cargo, and tank storage facilities. The amount of the levies and the maximum amount to be retained in the fund would be matters for individual PICs to decide, preferably after consultation with contributors, industry representatives and other interested parties.
Another Part of the draft legislation incorporates provisions of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, (1969) (INTERVENTION Convention). This allows the State to take action when threatened with grave and imminent danger from pollution to the waters or coast of the State following a marine casualty. Part V of the draft Marine Pollution Prevention Act incorporates the provisions of the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 92), as well as those of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (FUND 92). The provisions of the first Convention limit the liability of the shipowner but require mandatory insurance, while those of the second provide an international fund to cover damages in excess of the limited liability or in situations where the provisions of CLC 92 do not apply. All PICs receive less than 150,000 tons of oil annually and oil companies in those countries are not required to contribute to the Fund. Finally, the draft legislation incorporates the provisions of the London Convention, prohibiting dumping at sea generally, unless a permit is granted according to strict criteria. The provisions of the Act are backed up by heavy maximum fines, the recovery of which can be achieved by the forced sale of the vessel at fault or whose owner or master has contravened any provision of the Act.
So what are the benefits of this model? Perhaps it is the fact that the legislation focuses first on prevention, followed by containment, followed by clean-up. Others might say that it is innovative in that it includes all forms of pollution of the marine environment from all sources, except land-based sources. Some might say that it is beneficial because it requires forward planning, the benefit of an advisory committee, the appointment of a person in charge should any emergency arise, and the provision for funds to be available in a crisis situation. Others might focus on its ease of implementation when identifying benefits. The fact that it offers a uniform model for the Pacific Region and thereby promotes harmonisation and cooperation may be considered a plus. Other benefits may be that the model legislation requires consultation, both with the oil industry and the shipping sector, and with other countries in the region. It incorporates the ‘Polluter Pays’ principle - a powerful reminder to operators and potential polluters to exercise great care when their mistakes or negligence can impact large components of the economy or society. It requires potential polluters to contribute by means of a levy to a fund, managed by Trustees representing some of the contributors, which will be available in situations when funds must be spent or committed immediately. Furthermore, the legislation is consistent with all relevant, current international marine pollution conventions.
It can be argued that all the above factors are benefits from the new legislation. It was developed with consultation. It was developed with cooperation between regional organisations. It was sponsored by an international organization. If it can be accepted by all countries in the Pacific Region, it will be a great step forward in protecting the fragile, but as yet pristine, marine environment of this beautiful part of the world.
[1] Paper presented at the Workshop on The Prevention of Marine Pollution in the Asia-Pacific Region, 7-12 May 2000, Townsville (Australia)
[2] Regional Maritime Legal Advisor, Secretariat of the Pacific Community
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