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Marine Pollution in the Bay of

Bengal: In search of a Legal

Response

Dr. Saiful KarimQueensland University of Technology (QUT)

Brisbane, Australia

Threats

Impacts of climate change (sea level rise, ocean acidification, ocean

stratification, coral bleaching, changing species distributions and

other biological change to sea);

Land based marine pollution (sewage, garbage, fertilizers, pesticides

and industrial pollution);

Pollution from ships (pollution by oil, noxious liquid substances in

bulk, harmful substances carried in packaged form, sewage,

garbage, air pollution, greenhouse gas emissions from ships and

harmful aquatic organisms carried by ballast water and introduced

by bio-fouling)

Offshore hydrocarbon exploration and mining (prospecting, drilling,

and transport);

Unsustainable use and overexploitation of marine resources

Illegal, unreported and unregulated (IUU) fishing

Invasive Species Infestations

Marine Environment: Land-based Issues

Industrial Pollution

Domestic Pollution

Physical Alteration and Destruction of

Coastal Habitat

Shrimp Aquaculture

Tourism

Coastal Mining

Shipbreaking

Marine Environment: Sea-based Issues

-Vessel-Source Pollution Oil spills

Introduction of Harmful Non-indigenous Marine Species by Ballast Water and Other Sources

Harmful Vessel Anti-fouling Practices

Dumping from ships

-Others Ocean Dumping

Exploration of Hydrocarbon

Over Exploitation of Living Marine Resources

Vessel-Source Pollution

Oil spills

Introduction of Harmful Non-indigenous Marine Species by Ballast Water and Other Sources

Harmful Vessel Anti-fouling Practices

Dumping of garbage and swage from ships

Rule of Law and Global Ocean

Governance

UNCLOS

MARPOL (the International Convention for the

Prevention of Pollution from Ships) and many

other IMO Conventions

Regional Seas Conventions

International Fisheries Agreements

International Conventions

• United Nations Convention on the Law of The Sea, 1982

• International Convention for the Prevention of Pollution from Ships (MARPOL 73/78).

• International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969

• International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC), 1990

• Protocol on Preparedness, Response and Co-operation to pollution Incidents by Hazardous and Noxious Substances, 2000 (OPRC-HNS Protocol)

International Conventions Cont.

• International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001

• International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND), 1971

• International Convention on Civil Liability for Oil Pollution Damage (CLC), 1969

• International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004 (not in force)

• International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001(not in force)

• Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LDC), 1972

International Conventions in which Bangladesh is a

Party

• United Nations Convention on the Law of The Sea, 1982

• International Convention for the Prevention of Pollution from Ships (MARPOL 73/78)

MARPOL 73/78 (Annex I/II)

MARPOL 73/78 (Annex III)

MARPOL 73/78 (Annex IV)

MARPOL 73/78 (Annex V)

MARPOL Protocol 97 (Annex VI)

• International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969

• International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC), 1990

UNCLOS, 1982 “pollution of the marine environment" means the introduction by

man, directly or indirectly, of substances or energy into the marine

environment, including estuaries, which results or is likely to result

in such deleterious effects as harm to living resources and marine

life, hazards to human health, hindrance to marine activities,

including fishing and other legitimate uses of the sea, impairment of

quality for use of sea water and reduction of amenities.” article 1(4)

General obligations under UNCLOS to

protect marine environment

Article 192-States have the obligation to protect and

preserve the marine environment

Article 193-States have the sovereign right to exploit their

natural resources pursuant to their environmental policies

and in accordance with their duty to protect and preserve

the marine environment.

Article 194-States shall take, individually or jointly as

appropriate, all measures consistent with this Convention

that are necessary to prevent, reduce and control pollution

of the marine environment from any source, using for this

purpose the best practicable means at their disposal and in

accordance with their capabilities, and they shall endeavor

to harmonize their policies in this connection.

UNCLOS Cont.

• Land-based and coastal activities

• Continental shelf drilling

• Potential seabed mining

• Ocean dumping

• Vessel-source pollution;

• Pollution from or through the atmosphere

UNCLOS and Vessel-Source Pollution

Article 17.- Right to innocent passage

Article- 19 - Any act of willful and serious pollution contrary to this Convention is prohibited while a ship is in innocent passage.

Article- 21- a coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of inter alia the conservation of the living resources of the sea and for the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof.

Article- 39 Ships in transit passage shall comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships.

Article 57 - Exclusive Economic Zones up to 200 hundred nautical miles from State’s shore line.

Article 58 States have sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living in EEZ. This jurisdiction also extends to the protection and preservation of the marine environment.

Article 71 - The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.

UNCLOS and Vessel-Source Pollution

Cont.

Article 211 –

States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, of routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment.

States shall also adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference

Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall, in accordance with Part 11, section 3, not hamper innocent passage of foreign vessels.

UNCLOS and Vessel-Source Pollution

Article 211-

Coastal States, may in respect of their exclusive economic zones adopt

laws and regulations for the prevention, reduction and control of

pollution from vessels conforming to and giving effect to generally

accepted international rules and standards established through the

competent international organization or general diplomatic conference.

If the international rules and standards are inadequate to meet special

circumstances of certain area coastal States can defined area of their

respective exclusive economic zones as an special area and adopt special

mandatory measures for the prevention of pollution from vessels after

appropriate consultations through the competent international

organization.

MARPOL, 1973/78 MARPOL is the most important global treaty for the prevention of

pollution from the operation of ships; it governs the design and

equipment of ships; establishes system of certificates and

inspections; requires states to provide reception facilities for the

disposal of oily waste and chemicals. It covers all the technical

aspects of pollution from ships, except the disposal of waste into the

sea by dumping, and applies to ships of all types.

MARPOL, 1973/78 Cont.

Article 4, 5 and 6 require States to create and enforce appropriate national

laws for implementing MARPOL

Article 5 - Certificates and special rules on inspection of ships

Article 6- Detection of violations and enforcement of the Convention

MARPOL, 1973/78 Cont.

Regulations covering the various sources of ship-generated pollution are contained in the six Annexes of this Convention and are updated regularly.

– Compulsory Annexes

Annex I - oil

Annex II- chemicals

– Optional Annexes

Annex III packaged materials

Annex IV, Sewage

Annex V garbage

Annex VI air pollution

Special Areas under MARPOL

For better protection of marine environment from vessel source pollution

MARPOL establishes some ‘Special Areas’, because due to the technical

reasons relating to their oceanographical and ecological condition and to their

sea traffic, the adoption of special mandatory methods for the prevention of

sea pollution is required. UNCLOS provided a higher level of protection than

other areas of the sea to these Special Areas. A number of ‘Special Areas’

have been designated under annex I, II, V and VI.

MARPOL and Developing Countries

Article 17

The Parties to the Convention shall promote, in consultation with the Organization and other international bodies, with assistance and co-ordination by the Executive Director of the United Nations Environment Programme, support for those Parties which request technical assistance for:

(a) the training of scientific and technical personnel;

(b) the supply of necessary equipment and facilities for reception and monitoring;

(c) the facilitation of other measures and arrangements to prevent or mitigate pollution of the marine environment by ships; and

(d) the encouragement of research;

preferably within the countries concerned, so furthering the aims and purposes of the present Convention

Existing National Laws of Bangladesh

• Environment Conservation Act 1995

• Ports Act, 1908

• Territorial Water and Maritime Zones Act

1974

• Coast Guard Ain 1994 (The Coast Guard

Act 1994)

• The Merchant Shipping Ordinance 1983

• Chittagong Port Authority Ordinance 1976

Existing National Laws of Bangladesh

Merchant Shipping Ordinance 1983: Umbrella law regulating shipping and water transport in Bangladesh .This ordinance defines the ‘Bangladesh Ship’ and make necessary provisions for surveying and registration of Bangladesh ship and also details provisions relating to seaworthiness of vessels. This ordinance does not contain any provision relating to marine environment.

Territorial Water and Maritime Zones Act 1974 : Section 8 of this Act empowers government to take such measure, as it deems appropriate for preventing and controlling marine pollution and preserving the quality and ecological balance in the marine environment in high seas adjacent to the territorial waters.

Existing National Laws of Bangladesh

Section 41A of The Chittagong Port Authority Ordinance, 1976: causing

pollution of the water or environment to the port area shall be punishable

with fine, which may extent to one lakh taka.

Territorial Waters and Maritime Zones Rules, 1977: innocent passage of

foreign ships through the territorial waters shall considered prejudicial to

the security or interest Bangladesh if it is engage in any act of willful or

serious marine pollution, fishing and carry out any search or survey

activities.

Draft Marine Environment Conservation Act 2004

In 2004 government of Bangladesh drafted a Marine Environment Conservation

Act, which will be placed to the parliament for consideration after necessary

scrutiny. The draft Act basically aimed at conserving marine environment by

preventing marine pollution in Bangladesh and at the same time giving effect

to the International Convention for the Prevention of Pollution from Ships,

MARPOL 73/78 in Bangladesh.

Draft Marine Environment Conservation Act 2004

Draft Marine Environment Conservation Act, 2004 under the part II contains provisions for prevention of pollution caused by discharge of oil or pollutants.

Draft Act provides procedure of constitution of penal action against offender and judicial procedure including special power of the court. A case can be filed to the Marine Court if any offence occurs under this Act.

Draft Marine Environment Conservation Act 2004

Section 14 and 15 of the draft Act provide provision for necessary equipment in the ships to prevent pollution and equipment in ships to deal with pollution after it has occurred. Violator of provision of these sections will be punishable with a fine of 25% higher than the original coast of damage or with an imprisonment for a term, which may extend to 3 years or with both.

According to section 16 that ships are not complying with the provision of sections 14 & 15 may be detained.

Draft Marine Environment Conservation Act 2004

Section 19 elaborate provisions for facilities in port for disposal of residues of oil or

pollutant.

Section 20 put restrictions on transfer of oil or pollutants without requisite notice.

Under section 21 the owner or master or agent or the occupier of ship is bound to report

about discharge of oil or pollutants to the concerned authorities. If he failed to do so

without any reasonable ground he will be punishable with imprisonment for a term, which

may extend to 3 (three) years or a fine, which may extend to 10 (ten) lac taka or with both

Draft Marine Environment Conservation

Act 2008

This Act was not enacted

Environmental Justice and CBDR Principle

Differentiated Obligations

Financial and Technical

Assistance

Why it is difficult for the Developing World

International environmental legal governance

system is an “institution of the western world, by

the western world and for the western world”