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Heathcote, Captain Dr Peter --- "Marine Pollution Prevention Legislation in the Pacific Region - The First Five Years" [2003] MarStudies 2; (2003) 128 Maritime Studies 9

Marine Pollution Prevention Legislation in the Pacific Region – The First Five Years[1]

Captain Dr Peter Heathcote[2]

Existing Situation

Five years ago there was hardly any marine pollution legislation in Pacific Island countries (PICs). True, there was some legislation (and regulations) 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.[3] 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.

The Beginnings

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 in 1995 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, the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78) and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LDC) 1972 or the London Dumping Convention (as it seemed to be known in those days), the provisions in respect of these conventions were generally non-specific and the fines to be imposed were insignificant.

The Task

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 ships’ sewage, while others were concerned about the need to provide reception facilities for oily wastes and residues. The consultations went on and other provisions were added.

The Process

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, the Senior Crown Counsel, the President of the Law Society and a number of others. The purpose of the committee 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 as to the technical details of the subject matter, nor so thorough in their perusal of the draft laws before them.

The First Product

During the process of its 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, it seemed that the parties that were most likely to cause oil pollution damage as a result of their activities should contribute to the local fund. These would be ships and the owners of ships carrying oil for bunkers. There would also 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.

South Pacific Maritime Code (SPMC)

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 [International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1995] 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 adapted and/or 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.

Pacific Ocean Pollution Prevention Programme (PACPOL)

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 the International Maritime Organization (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 on point.

Changes

A number of events had occurred between the drafting of the original Tongan legislation and the development of the model Marine Pollution Prevention Act. These included the coming into force of the 1992 Protocol to the International Convention on Civil Liability for Oil Pollution Damage (CLC 1992) and the 1992 Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND 1992) Conventions, replacing CLC 1969 and FUND 1971 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.

Regional Model

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 Act is at the discretion of decision-makers in each country.

Response

As mentioned above, there is provision for the establishment of a National Pollution Committee and the appointment of an ‘On-Scene Commander’. The model legislation requires the preparation of various Marine Spill Contingency Plans (national and local) and advocates regional cooperation 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.

Conventions

Another part of the model legislation incorporates provisions of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (INTERVENTION), 1969. This allows the State to take action when grave and imminent danger from pollution to the waters or coast of the State following a marine casualty. Part V of the model Marine Pollution Prevention Act incorporates the provisions of the CLC 1992, as well as those of the FUND 1992. 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 1992 do not apply. All PICs receive less than 150,000 metric 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 LDC 1972, prohibiting dumping at sea generally, unless a permit is granted according to strict criteria. The provisions of the model 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.

Benefits

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. Yet 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, with the oil industry, the shipping sector, and 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 on 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.

Considerations

Given that this legislation is intended to give effect to international conventions, it is necessary to consider such issues as:

• what PICs are parties to the relevant conventions;

• the implications of the legislative model for non-Parties; and

• why PICs need to ratify conventions.

A table included as an Appendix shows the conventions to which PICs are Parties.

It will be noted that some States are parties to a large number of conventions. Unfortunately this does not always translate into national legislation, implementation and enforcement. Marshall Islands and Vanuatu are party to most conventions dealing with marine pollution such as MARPOL 73/78 (although Vanuatu is not a party to Annex IV – Sewage) and London 1972, (although Marshall Islands is not a party to the 1996 Protocol), and both these countries have denounced CLC 1969 and FUND 1971 in favour of the CLC Protocol 1992 and the FUND Protocol 1992. Papua New Guinea has recently denounced CLC 1969 and FUND 1971 and acceded to CLC and FUND Protocols 1992. According to the latest information available on the IMO website (April 2003), Tuvalu has not denounced CLC 1969 and FUND 1971. This is unfortunate, since the 1971 FUND has been wound down, and offers negligible protection to persons whose property has been damaged by oil pollution. Denunciation of the older Conventions and accession to the 1992 Protocols would afford adequate protection to marine interests in Tuvalu and in countries that are not a party to these two Conventions and their Protocols. Tonga is a party to a number of marine pollution conventions and has enacted a Marine Pollution Prevention Act based on the SPC/SPREP model legislation. Samoa, which has acceded to a number of international maritime conventions in the area of safety, has recently acceded to MARPOL 73/78 and the five Annexes as well as the CLC and FUND Protocols. Other countries in the region, such as the Federated States of Micronesia, Fiji Islands, Kiribati and Palau, are working on their domestic legislation before acceding to the various conventions. It should be noted that although Cook Islands and Niue do not appear on the IMO ‘Status of Conventions’, Cook Islands does have domestic legislation in place, based on an earlier SPC model. This legislation may need updating in the near future when the latest amendments to the model Marine Pollution Prevention Act have been updated and added to the Pacific Islands Maritime Legislation and Regulations (PIMLAR). These Amendments will then be forwarded to those persons holding this controlled document, and the amended version of the model legislation posted to the SPC website.

The implications for non-Parties are several and serious. The first is that if they have no domestic legislation in place (or implementation and enforcement procedures), they cannot in all honesty accede to the conventions. It usually means they have no protection measures in place to prevent a spill in the first place, control the effects of a spill or clean up after a spill. Even having domestic legislation alone does not necessarily guarantee protection, since the legislation should prescribe a plan for response and that plan has to be developed, trialled/ modified if necessary and exercised to ensure that everything will work in an emergency. So, the legislation should be enacted, the policies and procedures implemented and then it is legitimate to accede to the convention.

While this is the implication for non-Parties in the domestic sense, non-compliance with international conventions could also have ramifications for ships registered in that country. For example, a ship registered in the Cook Islands, a non-Party to MARPOL 73/78, may run afoul of Port State Control inspectors in a country that is a Party to MARPOL 73/78 and be detained until the deficiencies required under the Convention, but not under local domestic legislation, are made good.

But perhaps the most serious implication for non-Parties is the fact that they will not be covered by the provisions of the 1992 CLC Protocol or the 1992 FUND Protocol. If there are no measures in place to require compulsory insurance by shipowners for oil pollution damage, there will not be any further funds available from the International Oil Pollution Fund to those who suffer damage if the shipowner’s fund is insufficient or the damage resulting from the spill was not caused by an incident of the type covered by the CLC Convention.

Therefore it is important that all PICs seriously consider fast-tracking their domestic legislation; putting in place the SPREP national and regional plans; and then acceding to all the international conventions noted above, including HNS [Hazardous and Noxious Substances Protocol] 1996, OPRC/HNS [International Convention on Oil Pollution Preparedness, Response and Cooperation to Hazardous and Noxious Substances] 2000, the Bunkers Convention 2001 and the Anti-Fouling Convention 2001.

Conclusion

It can be argued that all the above factors are benefits from the new model legislation. It was developed with consultation. It was developed with cooperation between regional organisations. It was sponsored by an international organisation. 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. However, time does not stand still, and Pacific Island countries must keep up to date with international developments. This means taking pro-active measures to monitor what is occurring in a global sense; developing a national policy governing marine pollution; drafting domestic legislation and preparing national pollution prevention and response plans; implementing policies and procedures; and setting up effective inspection and enforcement strategies. One can never lower one’s guard when it comes to protecting the marine environment of the Pacific.

Endnote

APPENDIX 1: Table of Ratification of IMO Conventions by Pacific Island countries[4]


EIF &
Total no. of Parties
PIC
Total
Fiji Islands
Kiribati
Marshall
Islands
Micronesia (FSM)
Nauru
Palau
PNG
Samoa
Solomon Islands
Tonga
Tuvalu
Vanuatu
IMO Convention 48
17/3/58 (162)
7
X

X




X

X

X

X


X

IMO Amendments. 91
-
4


X




X

X

X
IMO Amendments. 93
-
4


X



X


X

X
SOLAS Convention 74
25/5/80
(146)
7
X

X



X

X


X
X
X
SOLAS Protocol 78
1/5/81
(100)
3


X




X



X
SOLAS Protocol 88
3/2/00
(61)
3


X






X

X
Stockholm Agreement 96
1/4/97
(8)
0












LOAD LINES Convention 66
21/7/68
(150)
7
X

X




X
X

X

X

X

LOAD LINES Protocol 88
3/2/00
(63)
3


X






X

X
TONNAGE Convention 69
18/7/82
(136)
6
X

X



X


X

X

X
COLREG Convention 72
15/7/77
(142)
8
X

X



X
X
X
X
X
X
CSC Convention 72
6/9/77
(72)
2


X








X
CSC Amendments 93
-
(6)
2


X








X
SFV Protocol 93
-
(9)
0












STCW Convention 78
28/4/84
(144)
10
X
X
X
X


X
X
X
X
X
X
STCW-F Convention 95
-
(4)
0












SAR Convention 79
22/6/85
(75)
2






X




X
STP Agreement 71
2/2/74
(17)
0












STP Protocol 73
2/6/77
(16)
0












INMARSAT Convention 76
16/7/79
(88)
1


X










INMARSAT OA 76
16/7/79
(86)
1


X









INMARSAT Amendments 94
-
(39)
0












INMARSAT Amendments 98
-
1


X










FACILITATION Convention 65
5/3/67
(94)
3
X

X








X

MARPOL 73/78 (Annex I/II)
2/10/83
(125)
6


X



X

X


X

X

X
MARPOL 73/78 (Annex III)
1/7/92
(107)
6


X



X
X

X
X
X
MARPOL 73/78 (Annex IV)
27/9/03
(91)
5


X



X
X

X
X

MARPOL 73/78 (Annex V)
31/12/88
(112)
6


X



X
X

X
X
X
MARPOL Protocol 97 (Annex VI)
-
(8)
1


X










EIF &
Total no. of Parties
PIC
Total
Fiji Islands
Kiribati
Marshall
Islands
Micronesia (FSM)
Nauru
Palau
PNG
Samoa
Solomon Islands
Tonga
Tuvalu
Vanuatu
London Convention 72
30/8/75
(79)
7

X


X

X

X
X

X
London Convention Protocol 96
-
(16)
1











X

INTERVENTION Convention 69
6/5/75
(78)
5
X

X




X


X


X
INTERVENTION Protocol 73
30/3/83
(44)
3


X






X

X
CLC Convention 69
19/6/75
(46)
1
d

d



d


d
X
d
CLC Protocol 76
8/4/81
(55)
2


X









X

CLC Protocol 92
30/5/96
(91)
6
X

X



X
X

X

X
FUND Convention 71
-
1
d

d



d


d
X
d
FUND Protocol 76
22/11/94
(33)
2


X









X

FUND Protocol 92
30/5/96
(85)
6
X

X



X
X

X

X
NUCLEAR Convention 71
15/7/75
(16)
0












PAL Convention 74
28/4/87
(29)
3


X







X

X

PAL Protocol 76
30/4/76
(23)
2


X








X
PAL Protocol 90
-
(3)
0












PAL Protocol 02
-
-












LLMC Convention 76
1/12/86
(40)
2


X








X
LLMC Protocol 96
-
(8)
0












SUA Convention 88
1/3/92
(88)
5


X
X

X



X


X

SUA Protocol 88
1/3/92
(80)
4


X



X



X

X
SALVAGE Convention 89
14/7/96
(43)
2


X








X
OPRC Convention 90
13/5/95
(71)
3


X






X

X
HNS Convention 96
-
(3)
0












OPRC/HNS 2000
-
(4)
0












Bunkers Convention 01
-
(1)
0












Anti-Fouling Convention 01
-
(3)
0












Total (54) for country ratifications


10
2
35
2
1
2
16
13
4
23
11
33

EIF entered into force

X state has given its consent to become a party to the treaty

d state has denounced this treaty


[1] Paper presented at the Seminar on Maritime Law Marine Pollution Prevention – Legislation and Prosecution, 2 – 6 June 2003, Nadi, Fiji Islands

[2] Peter Heathcote, B.Comm (cum laude), LL.B., M.B.A., Ph.D., FNI is the Regional Maritime Legal Advisor at the Secretariat of the Pacific Community, Private Mail Bag, Suva, Fiji Islands, (PeterH@spc.int) and provides maritime legal and policy advice to 14 Pacific Island countries.

[3] As an exception, Papua New Guinea had legislation which sought to incorporate international obligations for the control of marine pollution - (i) Prevention of Pollution of the Sea Act and (ii) Dumping of Wastes at Sea Act - but although the legislation was in place, monitoring procedures and enforcement measures were not.

[4] This information is compiled from the ‘Status of Conventions’ and ‘Summary of Status of Conventions as at 31 April 2003’ that is available on the IMO website at http://www.imo.org/home.asp


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