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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 241
June 10, 2006

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Environment Day Special
Star Law analysis
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Human Rights Advocacy
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Environment Day Special

Way to prevent marine environment pollution

Tapos Kumar Das

United Nations Convention on the Law of the Sea 1982 (UNCLOS III) is the key document concerning marine environment but unfortunately the convention provides no definition of it. Generally environment means conditions, circumstances and surrounding objects affecting a person's life. Similarly, marine environment means surrounding circumstances of marine life. Professor M. Habibur Rahman of the University of Rajshahi opines that the marine environment means environment of all water spaces including estuaries, bays, territorial sea, contiguous zone, continental shelf, exclusive economic zone and high seas.

Significance of the marine environment
Marine environment is a significant part of our “life cycle”. The area of watercourse is 361 million square kilometres, which is 70% of the total area of world. More than 90% of “Biomass” is directly related with marine environment. Primary food of more than 350 million people is fish, 95% of which is collected from marine areas. Again 70% of total oxygen comes from marine trees. Marine areas are the last resort of our resources and life.

Pollution of marine environment
Articl-1 of the UNCLOS-III provides that pollution of marine environment means introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or likely to result in harmful effect to living resources and marine life, hazards to human health, hindrances to marine activities, including fishing and other legitimate use of the sea, impairment of quality of sea water for use and reduction of amenities.

Consequences of marine environment pollution
There is no denial of the fact that marine environment which is the main source of our life and resources, is now getting polluted. Every year almost 55 thousand people are dying due to marine environment pollution. According to the United Nations Environment Programme (UNEP) every year, pollution of marine environment causes death of more than 1 million birds and thousands of mammals and tortoise. Recently a statistics disclose that every year more than 150 thousand of Seals and Penguins are dying in the Antarctica due to environmental pollution. During the Gulf war of 1991 marine environment of that area was seriously contaminated due to release of oil which caused death of thousands of marine lives of that area.

Measures for protection and preservation of marine environment
Considering the adverse consequences of pollution, efforts have been taken at the national and international level for the prevention, reduction and control (PRC) of marine environment pollution and for the protection and preservation of marine environment. UNCLOS III empowers the coastal States to adopt national legislation in compliance with its provision to take PRC measures within national jurisdiction. The coastal States can adopt international conventions in accordance with UNCLOS III to take collective measures for prevention, reduction and control of marine environment pollution beyond the national jurisdiction.

Bangladesh perspective
With the boost of population Bangladesh will gradually turn its attention to rich marine resources for food and other needs of its people. It is reported by scientists that resources on sea are much more prolific than those on land. As our land-resources are being exhausted, it will be necessary for Bangladesh to depend increasingly on sea resources. So, Bangladesh should be more concerned about its marine ecology. It is nice to see that some days ago the High Court of Bangladesh issued an injunction on entry of poisonous sulphur enriched foreign ship in Bangladesh's territorial sea. In this direction the Court indicated that no foreign scrap ship should be allowed to enter into Bangladesh domain without the approval of Forest and Environment Department.

There is the Territorial Waters and Maritime Zones Act, 1974 to deal with maritime matters within the national jurisdiction of Bangladesh. The Act is not updated and adequate enough to cover the entire ambit of marine environment.

International perspective
At the international level several international organisations are working for PRC of marine environment pollution. German based “Green Party”, New Zealand based “Green Peace” are in front row of this activity. The UN itself is providing guidelines to these organisations to continue PRC measures. Under the guidance of UN several international conventions have been adopted to facilitate the PRC measures beyond the national jurisdiction. Some of the mentionable conventions are:
1. Brussels Convention on Civil Liability for Oil Pollution Damage, 1969
2. International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971
3. London Dumping Conference, 1972
4. United Nations Convention on the Law of the Sea, 1982 (UNCLOS III)
5. Vienna Convention, 1985
6. Montreal Protocol, 1987
Among these conventions UNCLOS III is the prominent and mostly followed for its widespread acceptability.
Prevention, reduction and control of marine environment pollution under UNCLOS III

Articles 192 to 237 of UNCLOS-III deal with prevention, reduction and control of marine environment pollution. These impose obligation upon the Sate parties to protect and preserve the marine environment. The coastal States have the right to exploit marine resources, but it should be carried out keeping in mind of their individual and collective responsibility of protection and preservation of marine environment. In compliance with UNCLOS III measures shall be designed to minimise:
1. Release of toxic, harmful or noxious substances from land based sources, from or through the atmosphere or by dumping;
2. Pollution from vessels;
3. Pollution from installations and devices used in exploration or exploitation of natural resources of the sea-bed and subsoil;
4. Pollution from other installations and devices operating in the marine environment.
States shall not transfer directly or indirectly damage or environmental hazards from one area to another or transform one type of pollution into another. Marine environment pollution resulting from technologies or introduction of new species should also be contained by the responsible State. Regional and global cooperation is a must for protection and preservation of marine environment. When a State becomes aware of marine environment pollution it shall immediately notify other States so as to take contingency plan of action against the pollution collectively under competent international organisations. States shall adopt studies, research programmes and shall exchange data and information for such purpose. Marine environment pollution affects not only a particular State but also has a global impact. So the States shall directly or through international organisations promote scientific, educational, technical and monetary assistance to developing States for prevention, reduction and control of marine environment pollution.

States shall monitor risk or effects of pollution, publish the results of such monitoring and shall assess the potential effects of activities, when there are reasonable grounds of believing that these could cause substantial and harmful changes to the marine environment. States are allowed to adopt national and international legislation to prevent, reduce and control marine environment pollution from land based sources including rivers, estuaries, pipelines and outfall structures, from sea bed activities subject to national jurisdiction, from activities in Deep Sea Bed Area, from dumping by vessels and from or through atmosphere (Article-207-212).

States can enforce anti-pollution or anti-dumping regulation according to the place of occurrence of pollution. The enforcing State may be the State having territorial jurisdiction in case of land based pollution, or the exploiting State in case of pollution from activities in the sea-bed or in case of dumping the coastal State where dumping occurs within its territorial sea, exclusive sea or continental shelf. The flag State of the vessels or aircraft responsible for dumping or the State having territorial jurisdiction as to acts of loading of wastes etc. occurring within its territory can also enforce these laws and regulations. The flag, port and coastal States shall measure sea worthiness of vessels to avoid pollution within any of its ports or at any of its offshore terminals. States shall enforce laws and regulations to prevent pollution from or through atmosphere under their sovereignty. In pursuant to international law States have the rights to take and enforce measures beyond the territorial sea, proportionate to the actual or threatened damage to protect their coastline or related interests including fishing from pollution or threat of pollution from marine casualties, which may results in major harmful consequences.

Coastal States can institute civil proceeding as a part of PRC measures but should follow limitations in case of monetary compensation and uphold the rights of the accused .The coastal States shall notify the legal proceedings and action taken by non-compliance vessels or aircraft.

Coastal States can adopt and enforce non-discriminatory laws and regulations for prevention, reduction and control of marine environment pollution from vessels in ice-covered areas within the limit of exclusive economic zone to maintain ecological balance of that area. Such laws and regulations shall have due regard for navigation and the protection and preservation of the marine environment, based on best available scientific evidence.

States have the responsibility to fulfil their international obligations as to the prevention, reduction and control of marine environment pollution. States shall ensure that their legal system affords prompt and adequate remedies for damage caused by pollution of the marine environment by the persons under their jurisdiction (Article-235). If the coastal States incur any obligations under any conventions or agreements for prevention, reduction and control of marine environment pollution, such obligations shall be carried out inconsistent with the general principles and objectives of the UNCLOS III (Article-237).

Reflective thoughts
Every year almost 20 billion tons of dusts including poisonous chemicals, material with radio activity, unrefined liquid substances and 10 billions tons of crude oil are being released in the seas, which altogether is making the marine environment polluted and resulting in the destruction of “biomass” and “ecological balance'. As a part of the PRC measures world community voiced “Wanted! Seas and Oceans dead or alive” as the slogan of The International Environment Day 2004.For prevention, reduction and control of marine environment pollution integrated approach is needed at national and international level under national and international legislation. And finally, we have to think globally and act locally.

The writer is Lecturer of Law, Stamford University Bangladesh.

World Environment Day


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