Sri Lanka’s legal framework for marine pollution control: an evaluation of the Marine Pollution Prevention Act, No. 35 of 2008

ABSTRACT

This article provides an assessment of the efficiency and efficacy of Sri Lanka's legislation Marine Pollution Prevention Act No. 35 of 2008 (administered by the Marine Environmental Protection Authority/MEPA), for protecting Sri Lankan waters from pollution. Although there are provisions to control pollution - from ships, harbors/ports, any facility used by ships and offshore petroleum exploration projects - and to deal with offences, imposing both criminal and civil liabilities for offenders, there are some serious loopholes. This includes failure to address land-based pollution sources, unclear provisions for ballast water disposal and no consideration for pollution from other offshore projects, etc. The Act requires significant amendments considering the international conventions pertaining to marine pollution control, both ratified and unratified by Sri Lanka. The success of amending the Act must also be monitored by MEPA with other government agencies implementing the international instruments dealing with marine environmental monitoring ratified by Sri Lanka.

KEYWORDS:

• Act
• Convention
• oil
• pollution

Acknowledgements

I thank Dr. Terney Pradeep Kumara (Marine Environmental Protection Authority, Sri Lanka), Mr. A. Sarveswaran (Faculty of Law, University of Colombo, Sri Lanka), Ms Nishara Mendis (Faculty of Law, University of Colombo, Sri Lanka), Mrs. B.L. Kularatne and Rev. Fr. (Dr.) Noel Dias (Chaplain – Catholic Lawyers’ Guild Archbishop’s House) for assisting me to prepare and revise this manuscript. Furthermore, I thank Professor Sanjay Chaturvedi (Chief Editor of this journal) and Gurpreet S. Goraya (Commissioning Editor of this Journal and the Executive Officer of the Indian Ocean Research Group Inc.) and the anonymous reviewers for their useful comments and suggestions, that enabled me to drastically improve this manuscript.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributor

R. K. A Kularatne is a well qualified Environmental Health and Safety Expert with more than 15 years experience in the construction sector, apparel industry, R & D firms, water and effluent treatment engineering firms, power sector, NGOs and consultancy firms. He has wide exposure to projects sponsored by the World Bank, World Vision, UN agencies, Asian Development Bank, International Union for the Conservation of Nature (IUCN), Red Cross Societies, USAID, CIDA and JICA, etc. He is also a Consultant, Trainer and an expert witness. His primary research is in environmental monitoring and assessments (including toxicology and risk assessments), health and safety management, climate change, marine biodiversity conservation, wastewater treatment (including phytoremediation), solid waste management as well as in Environmental legislation and policies.

Notes

1 Fishing ports/anchorages are owned and managed by Ceylon Fishery Harbours Corporation (CFHC) coming within the Ministry of Fisheries and Aquatic Resources (MFAR).

2 More details about the Act could be viewed from http://www.mepa.gov.lk/web/images/pdf/acts/act-mepa.pdf.

3 Presidential Proclamation of 15 January 1977 in pursuance of Maritime Zones Law No. 22 of 1 September 1976.

4 Note that the Maritimes Zones Law and the Presidential Proclamation of 15 January 1977 in pursuance of this Law predates the UNCLOS 1982 (which became a force in Sri Lanka from 1994 onwards). But since representatives from the Government of Sri Lanka actively participated in the UNCLOS Conference (1973-1982) and H.S. Amerasinghe was the President of the Conference, the provisions reflect well of what was being discussed at the time.

5 After gaining independence from British occupation by both countries, a maritime agreement was signed between the 2 countries (between Adam’s Bridge and the Palk Strait) with handing over of Kachhatheevu Islands to Sri Lanka on 08.07.1976 (Kularatne, 2020). The second agreement was signed on 23.03.1976 to define the maritime boundaries in the Gulf of Mannar and the Bay of Bengal and the maritime boundary in the Gulf of Mannar was extended in 22.11.1976 (Kularatne, 2020).

6 This Act is implemented by the Coast Conservation Department (CCD).

7 Part XII emphasizes the obligations of states to protect and preserve the marine environment including the measures to prevent, reduce and control the marine pollution, global and regional cooperation of states for prevention of marine pollution, technical assistance, monitoring and environmental assessment, international rules and national legislations, enforcements, safeguard, responsibility and liability, sovereign immunity, obligations under other conventions on the protection and preservation of the marine environment.

8 This is also mentioned in Article 21 under Part VI (Part VI of the Act deals with waste management, which includes oil, garbage and other harmful substances, etc). Also, the Marine Environmental Protection (Waste Reception Facilities) Regulations 2016 (Extraordinary Gazette No. 1996/27 dated 06.12.2016) gazetted under the Act mandates any port, harbor, terminal, ship repair yards, dry docks or any other facility used by ships to have waste reception facilities and ships entering or operating within Sri Lanka must use them.

9 In line with Article 199 (Contingency plans against pollution) of UNCLOS and the CLC Convention, Oil Spill Contingency Plan Regulations No. 01 of 2012 (Extraordinary Gazette No. 1771/19 dated 15.08.2012) was Gazetted under the Act, which uses the “Precautionary Principle” (Principle 15 of the Rio Declaration on Environment and Development 1992) mandating every owner, operator, master or their agents or any other person in charge of ports, harbor terminals, repair yards of ships, dry docks, offshore installations, pipelines or any other apparatus used for transferring of oil to and from ships in waters to prepare and implement an updated MEPA approved Oil Spill Contingency Plan (OSCP). OSCP shall be in accordance with the NOSCOP (which incorporates the tier concept; Tier-1 oil spill < than 50 MT, Tier-2 oil spill 50 -100 MT and Tier-3 oil spill > 100 MT. When more than 50 MT oil spills occur, the NOSCOP should be implemented).

10 Ships and vessels belonging to the Sri Lankan Navy, the Sri Lanka Army and the Sri Lanka Air Force are covered by the Navy Act, Army Act and the Air Force Act, respectively. There are separate provisions to punish Officers in Charge of ships / vessels that have been responsible to cause any misconduct (which would include marine pollution incidents) under the Army Act (Chapter 357), Navy Act (Chapter 358) and the Air Force Act (Chapter 359). However, all other ships (whether foreign or local ships belonging to the private sector and/or the government sector) are included within the scope of the Act.

11 According to Article 4(a)

1. Each Party listed in Annex VII shall prohibit all transboundary movements of hazardous wastes which are destined for operations according to Annex IV A, to States not listed in Annex VII.

2. Each Party listed in Annex VII shall phase out by 31 December 1997, and prohibit as of that date, all transboundary movements of hazardous wastes under Article 1(1)(a) of the Convention which are destined for operations according to Annex IV B to States not listed in Annex VII. Such transboundary movement shall not be prohibited unless the wastes in question are characterised as hazardous under the Convention. … ’

12 Article III (4) (c): Parties that are Range States of a migratory species listed in Appendix 1 shall endeavour: to the extent feasible and appropriate, to prevent, reduce or control factors that are endangering or are likely to further endanger the species, including strictly controlling the introduction of, or controlling or eliminating, already introduced exotic species.

Article V (5) (e): Where appropriate and feasible, each agreement (for Annex II) should provide for, but not be limited to protection of such habitats from disturbances, including strict control of the introduction of, or control of already introduced, exotic species detrimental to the migratory species.

13 Only one assessment program with reference to NIS was conducted from March-April 2016 in collaboration with the IUCN, covering a total of 5 locations between the Western and Southern offshore marine environments. However, results were not published, though Semibalanus balanoides (Australian acorn barnacle) and Crassostrea virginica (Oyster) were detected at Beruwala fishery harbor in the West Coast (Ranasinghe, 2016).