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Adequacy of national laws for Malaysian ocean governance for the next decade

  • Mary George

Abstract

Current sectoral practices in ocean governance are insufficient to meet the needs of the next decade where the safety and security of navigation in clean and healthy oceans is a priority without compromising the political independence, integrity and security of the nation. The Ocean Law, Policy and Strategic Framework in Malaysia can be said to be a journey of a 1000 miles of which we have currently embarked on a few steps. There are many factors that play an important role in ocean governance such as government commitment, and institutional and human resource capacity. This paper identifies the lacunae in current legal framework and concludes with some pointers for ocean governance purposes to avoid irreversible trends. For the next decade, one way forward to sustainably develop the living resources of the oceans lies in the adoption of an eco-system based approach to oceans management and for the rest of the challenges a cross-sectoral approach may prove effective.

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1 Safety In Straits Of Melaka And Singapore At Highest Level, October 10, 2011 19:41 PM MELAKA, Oct 10 (Bernama) BERNAMA, http://www.marine.gov.my/galeri/kenyataanakhbar/2011/Bernama10102011.pdf, 15 Nov 2011.

Fund raised to remove ship wrecks in the Straits, New Straits Times, and 11 October 2011.

2 “Malacca Strait ‘highway’ costs” soar by Marcus Hand. Friday, April 18, 2008 Lloyd's List News 5.

3 “Arab Saudi sumbang RM323, 711 untuk Tabung Bantuan Pelayaran” Utusan Malaysia, Jumaat, 7 May 2010. Utusan Malaysia, 7 Mei 2010.

“Aids to Navigation Fund starts with $3.6 bn in kitty” Cash for Malacca and Singapore Straits initiative from charities and UAE, Greece and South Korea. Menas stressed that the money came from the surplus generated from the chartering out of a vessel it owns and not from the industry. “As a registered charity in England we are not allowed to build up reserves with no identifiable objective. We have changed the scope of our activities from the Middle East to global so we are entitled to disburse these funds,” said Menas chairman John Gyles. While this could be seen indirectly as contribution by ship owners, there is still no firm commitment of funding from any industry representative body. “The Nippon Foundation has approached Intertanko, Intercargo, BIMCO and the International Chamber of Shipping to get support for this fund and we are making some progress,” said chairman of the Aids to Navigation Fund Committee Ahmad Othman. Additionally, both China and Japan are said to be “seriously considering” contributing to the fund. Ibid.

4 Ibid.

5 Id.

6 Id.

7 “Navigation fund set up: move to keep Malacca Straits Free”, Bernard See, The Star/Nation, Friday, 18 April 2008

8 The Malaysian laws on the prevention and suppression of international terrorism are found in the Internal Security Act 1960 (ISA), Penal Code, Civil Aviation Offences Act 1984 and Extra-territorial Offences Act 1976. Under the Extra-territorial Offences Act 1976, the term “extra-territorial jurisdiction” means that Malaysian authorities can claim jurisdiction over certain specified offences under Malaysian law as if these offences were committed in Malaysia when such offences are actually committed on the high seas on board any ship or on any aircraft registered in Malaysia by any citizen or permanent resident, on the high seas on board any ship or on any aircraft; by any citizen or permanent resident in any place without and beyond the limits of Malaysia. The offences are specified in Section 2 of the Extra-territorial Offences Act 1976 as follows: any act contrary to the provisions of the Official Secrets Act 1972 and the Sedition Act 1948; any offence under any other written law the commission of which is certified by the Attorney General to affect the security of Malaysia. The Penal Code (Amendment) Act 2007 seeks to amend the principal Act - Penal Code (Amendment) Act 2006 (“Act A1273”). The definition of terrorism in section 5(2) and in relation to section 130B has been brought in line with the international conventions where the term “terrorist act” consists of either an act or threat of action within or beyond Malaysia where (a) it is made with the intention of advancing a political, religious or ideological cause; and (c) the act or threat is intended or may reasonably be regarded as being intended to (i) intimidate the public or a section of the public; or (ii) influence or compel the Government of Malaysia or the Government of any State in Malaysia, any other government, or any international organization to do or refrain from doing any act.” A new subsection (3) adds that “An act or threat of action falls within this subsection if it—(a) involves serious bodily injury to a person; (b) endangers a person's life; (c) causes a person's death; (d) creates a serious risk to the health or the safety of the public or a section of the public; (e) involves serious damage to property; (f) involves the use of firearms, explosives or other lethal devices; (g) involves releasing into the environment or any part of the environment or distributing or exposing the public or a section of the public to — (i) any dangerous, hazardous, radioactive or harmful substance; Penal Code (Amendment) (Amendment) (ii) any toxic chemical; or (iii) any microbial or other biological agent or toxin; (h) is designed or intended to disrupt or seriously interfere with, any computer systems or the provision of any services directly related to communications infrastructure, banking or financial services, utilities, transportation or other essential infrastructure; (i) is designed or intended to disrupt, or seriously interfere with, the provision of essential emergency services such as police, civil defense or medical services; (j) involves prejudice to national security or public safety; (k) involves any combination of any of the acts specified in paragraphs (a) to (j), and includes any act or omission constituting an offence under the Aviation Offences Act 1984 [Act 307] See United Nations Legislative Series, National Laws and Regulations on the Prevention and Suppression of International Terrorism Part II (A-L) and (M-Z), United Nations, New York, 2005. at 2-4, 270-272, and 292-293. The laws of Singapore on terrorism are found in the United Nations Act and United Nations (Anti-Terrorism Measures) Regulations 2001, the Internal Security Act and the Penal Code. In Indonesia, the legal basis for the prevention of recruitment of individuals for terrorist activities is through the Indonesian Penal Code in their Book II on crimes, Chapter V on crimes against the public order provides in Article 160.

9 New Straits Times, 18 October 2010, Utusan Malaysia and Harian Metro

10 See Shearer, Ivan “Oceans Management Challenges For The law of the Sea In The First Decade of the 21st Century” in Oude, Elferink Alex G and Rothwell, Donald R. (Eds) Oceans Management in the 21st Century: Institutional Frameworks and Responses (Leiden: Martinus Nijhoff Publishers: 2004) at 5.

11 See George, M “Incorporation of Environmental Law Principles in the boundary treaties of the Straits of Malacca and Singapore” 4 (1) Journal of Diplomacy and Foreign Relations (2002) at 40-69.

12 2004.

13 See George, M “The Regulation of Maritime Traffic in Straits Used For International Navigation” in Elferink and Rothwell (Eds), Note 10 at 19-47.

14 See the Anglo-Norwegian Fisheries Case, 1951 ICJ Reports

15 Ibid.

16 Section 3. Date of Royal Assent: 29 December 2006; Date of Publication in Gazette: 31 December 2006 and Date of coming into operation: 1 May 2007 [PU.B] 120/2007.

17 Section 7(2) and (3).

18 Section 7 (5).

19 Section 8 (a) and (b).

20 Ibid at 66.

21 Freestone, David “International Law and Sea Level Rise” in Robin Churchill and David Freestone (Eds), International Law and Global Climate Change (Graham & Trotman: Martinus Nijhoff: 1991) at 110 and 111.

22 Id at 110-111.

23 Article 4(1) of the Federal Constitution provides that it is the supreme law of the Federation and any law passed after Independence Day which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void. The Federal Constitution provides for the distribution of legislative powers in the Ninth Schedule. Under the Federal system, both the Federal Parliament and the State legislatures have powers to legislate on matters exclusive to the federal list, state list and concurrent list. With regard to items in the Concurrent list, both Federal and State governments can legislate and in case of conflict, the Federal Government prevails. An examination of the various lists in the Ninth Schedule that provides for distribution of competencies, shows that the term ‘environment’ is not mentioned. There is no specific mention of the environment or of any rights or duties owing to the environment. The states of Sabah and Sarawak have more legislative competency than others, a special position accorded to them under the Malaysia Act.

24 Mary, George “Legal regulations and policy concerning the decommissioning of offshore installations in Malaysia: de lege ferenda in Innovations and technologies in Oceanography for Sustainable Development, Phang et al (Eds) 2005, 293326.

25 Mary, George “Regulating Marine Scientific Research: A correlation between the Law of the Sea, Science and National Sovereignty”, Malaysian Journal of Science 27 (3): 137-153 (2008)

26 Mary, George Note 24 at 298.

27 Mary, George “Making a case for legal protection for the survival of the Malaysian Marine Fishing Industry” Journal of Science and Technology in the tropics (2010) 6: S163S184

28 The main contaminants of the marine coastal waters of all states were oil and grease, total suspended solids, and E. coli. Joint airborne surveillance operations were carried out by the DOE, the Police Air Wing and the Air Force Unit of the Ministry of Defense to detect illegal dumping of oil and waste in the Straits of Malacca and the South China Sea, EMP at 542.

29 Sections 46 – 53 are as follows: S. 46- Powers of authorized officer; 47. Powers of entry, seizure and arrest, etc.;

48 Sale of fish or other article of a perishable nature; 49. Seizure and forfeiture of vessel, etc.; 50. Temporary return of vessel, etc. seized; 51. Costs of holding vessel, etc., in custody; 52. Forfeiture and disposal of vessel. Etc.; 53. Obstruction of authorized officer; 54. Authorized officer to declare office; 5. Bar to actions; 56. Presumption; Part XI is on GENERAL PROVISIONS - 57. Service of documents; 58. Exemption for certain purposes; 59. Registers of licenses and permits; 60. Exemptions; 61. Power of Minister to make regulations; 62. Repeal.

30 The Johore Fisheries Act (Adoption) Enactment No 1 of 1989; The Kedah Fisheries (Adoption) Enactment No 5 of 1989; The Kelantan Fisheries (Adoption) Enactment No 6 of 1986; The Malacca Fisheries (Adoption) Enactment No 3 of 1987; The Negeri Sembilan Fisheries (Adoption) Enactment No 4 of 1989; The Pahang Fisheries (Adoption) Enactment No 6 of 1988; The Perak Fisheries Act 1985 (Adoption) Enactment No 4 of 1988; The State of Pulau Pinang Fisheries (Adoption) Enactment No 1 of 1987; The Perlis Fisheries (Adoption) Enactment No 4 of 1988; The Sabah Fisheries Bill 2003; The Sarawak State Fisheries Ordinance 2003, Chapter 54 and The Terengganu Fisheries (Adoption) Enactment No 5 of 1986.

31 Fourth ASEAN State of the Environment Report 2009 at p. 46.

32 Mary, George Journal of Maritime Law and Commerce (forthcoming) January 2012.

33 International Convention on Load Lines (LL),1966 - 12 Apr 1971; Convention on the International Maritime Organization, 1948 - 17 June 1971; Convention on the International Regulations for Preventing Collisions at Sea (COLREG) 1972, as amended 23 Dec 1980; International Convention for the Safety of Life at Sea (SOLAS) 1974, as amended - 19 Jan 1984; Protocol of 1978 relating to the International Convention for the Safety of Life at Sea 1974, as amended - 19 Jan 1984; International Convention on Tonnage Measurement of Ships, 1969 - 24 July 1984; Convention on the International Mobile Satellite Organization (IMSO) 1976, as amended - 12 June 1986; Operating Agreement on the International Mobile Satellite Organization 1976, as amended - 12 June 1986; International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) 1978, as amended - 30 Apr 1992.

35 (Whole of Part IX was substituted by A792/91).

36 Part XIV deals with Legal Proceedings in Sections 492517.

S. 492 – Sessions or Magistrate's Court for trial of offences under Ordinance; S. 493 - Charge with offence under Ordinance only with the sanction of a Port Officer, a Port Health Officer, a Surveyor of Ships or a police officer;

S. 494 – Liability of ship owners or persons interested in a share of the ship may be joint or several; S. 495 - Liabilities of ships not recognized as British still remain for the payment of dues etc… as if she were a recognized British ship; S. 496 – The following Officers are deemed to be public servants under the Penal Code: The Director of Marine, Port Officers, Port Health Officers and their respective deputies, the Surveyor-General of Ships, Surveyors of Ships, Judges and Assessors of and in any Court of Investigation or Court of Survey, and Registrars of Courts of Survey shall be deemed to be public servants within the meaning of the Penal Code; S. 497 -Limitation of Time for Proceedings for Prosecution of offences; S. 498 - Jurisdiction-Provision as to jurisdiction in case of offences; S. 499 - Jurisdiction over ships lying off the coast; S. 500 - Jurisdiction in case of offences on board ship

(2) Nothing in this section shall affect the Admiralty Offences (Colonial) Act, 1849, in so far as it extends to the Federation or any part thereof; S. 501 - Damages Occasioned by Foreign Ship - Power to arrest foreign ship that has occasioned damage; S. 502 - Inquiries into Deaths - Inquiry into cause of death on board ship; S. 503 - Depositions - Depositions to be received in evidence when witness cannot be produced; S. 504 - Detention of Ship and Distress on Ship - Enforcing detention of ship and payment of fines in cases of obstruction (amended - A895/1994); S. 505 - Sums ordered to be paid levyable by distress on ship; S. 506 - Notice to be given to consular officer where proceedings taken in respect of foreign ships: Where any foreign ship is detained under this Ordinance, and where any proceedings are taken under this Ordinance against the master or owner of any such ship, notice shall forthwith be served on the consular officer for the country to which the ship belongs at or nearest to the port where the ship is for the time being, and such notice shall specify the grounds on which the ship has been detained or the proceedings have been taken. S. 507 - Cost of detaining ships.

Ss 508 – 511 Evidence, Service of Documents, and Declaration

S. 508 - Proof of attestation not required; S. 509 - Admissibility of documents in evidence; S. 510 - Service of documents and fines for obstruction thereof; S.511 – Declarations.

Ss 512- 517 Application of Penalties and Costs of Prosecutions

S. 512 - Application of penalties; S. 512 A - Compounding of offences

(4) The power to compound any offence under this Ordinance shall be exercised by the Director of Marine personally. (inserted vide A895/1994)Civil Proceedings

S. 513 - Rule as to division of loss

(1) Where, by the fault of two or more vessels, damage or loss is caused to one or more of those vessels, to the cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault:

Provided that -

(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally; and

(b) nothing in this section shall operate so as to render any vessel liable for any loss or damage to which her fault has not contributed; and

(c) nothing in this section shall affect the liability of any person under a contract of carriage or any contract, or shall be construed as imposing any liability upon any person from which he is exempted by any contract or by any provision of law, or as affecting the right of any person to limit his liability in the manner provided by law.

(2) For the purposes of this Ordinance, the expression “freight” includes passage money and hire, and references to damage or loss caused by the fault of a vessel shall be construed as including references to any salvage or other expenses, consequent upon that fault, recoverable at law by way of damages.

S. 514 - Damages for personal injuries may be joint and several; S. 515 - Right of Contribution from more than one vessel where all are at fault.

S. 516 - Application of sections 513, 514 and 515

Sections 513, 514 and 515 shall apply to any persons other than the owners responsible for the fault of the vessel as though the expression “owners” included such persons, and in any case where, by virtue of any charter or demise, or for any other reason, the owners are not responsible for the navigation and management of the vessel, the said sections shall be read as though for references to the owners there were substituted references to the charterers or other persons for the time being as responsible.

S. 517 - Limitation of actions

37 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND) 1971 - 6 Apr 1995; Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships (MARPOL) 1973, as amended (Annex I, II & V) - 1 May 1997; International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC) 1990 - 30 Oct 1997; Amendments Adopted in November 1991 to the Convention of the International Maritime Organization (Institutionalization of the Facilitation Committee) - 9 Nov 2004; Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage (CLC) 1969 - 9 June 2005; Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 - 9 June 2005; The International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunkers Convention 2001) - 12 February 2009; The International Convention for the Limitation of Liability for Maritime Claims, 1976 as Amended by Protocol of 1996 (LLMC Convention 1996) - 10 February 2009.

Source: Marine Department Malaysia, http://www.marine.gov.my/indexBI.htm. site accessed on 16 November 2011.

38 For Protection of species and eco-systems: Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES); Convention on Biological Diversity; Cartagena Protocol on Biosafety; Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention); Protocol to amend the Convention on Wetlands of International Importance especially as Waterfowl Habitat; Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal; Ban amendment to the Basel Convention;

Climate: United Nations Framework Convention on Climate Change (UNFCCC); Kyoto Protocol to the United Nations Framework Convention on Climate Change; The Vienna Convention for the Protection of the Ozone Layer; Montreal Protocol on Substances that Deplete the Ozone Layer (1987); London Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (1990); Copenhagen Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (1992); Montreal Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (1997); Beijing Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (1999); ASEAN Agreement on Transboundary Haze Pollution.

Chemicals: Rotterdam Convention on the Prior Informed Consent Procedures for Certain Hazardous Chemicals and Pesticides in International Trade.

To ratify: Stockholm Convention on Certain Persistent Organic Pollutants (POPs Convention); and ASEAN Agreement on the Conservation of Nature and Natural Resources.

39 The main contaminants of the marine coastal waters of all states were oil and grease, total suspended solids, and E. coli. Joint airborne surveillance operations were carried out by the DOE, the Police Air Wing and the Air Force Unit of the Ministry of Defense to detect illegal dumping of oil and waste in the Straits of Malacca and the South China Sea, EMP at 542.

40 It reads as follows:

If any ballast or rubbish or if any other thing likely to form a bank or shoal or to be detrimental to navigation is, without permission of the Port Officer or other lawful excuse, cast or thrown into any port or into or upon any place or shore from which the same is liable to be washed into any port, either by ordinary or high tides or by storms or land-floods, the person who so casts or throws the same or causes the same to be so cast or thrown as aforesaid, and the master of any vessel, from which the same is cast or thrown, shall be liable to a fine not exceeding two hundred and fifty ringgit, in addition to any expenses which are incurred in removing the same.

41 Mary, George “Legal regulations and policy concerning the decommissioning of offshore installations in Malaysia: de lege ferenda in Innovations and technologies in Oceanography for Sustainable Development, Phang et al (Eds.) 2005, 293326.

42 IWCO, at 152.

43 See First Workshop, “Extent of Transfer of Alien Invasive Organism in South/South East Asia Region by Shipping”, 28 September 2011, Dewan Perhimpunan MOSTI, Aras 1, Blok C 4, Kompleks C., Putrajaya, 28 September 2011. Organised by the National Oceanography Directorate, Ministry of Science, technology and Innovation and Marine Department of Malaysia.

44 IWCO, at 153.

45 IWCO, at 154.

46 IWCO, at 154.

47 The 1971 Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat, was adopted in Ramsar, Iran on 2 February 1971 and for purposes of introducing amendment procedures was amended by the Protocol of 3 December 1982 followed by the Amendments of 28 May 1987. Popularly known as the RAMSAR Convention, it is subsequently referred to as the Convention on Wetlands of International Importance being not just confined to waterfowl, and serves as a framework convention for national action and international cooperation for the conservation and wise use of a nation's wetlands and resources therein based on a particular ecosystem approach. The “wise use” concept, embracing the twin concepts of conservation and sustainable use of wetlands and their resources for the benefit of humankind, lies at the heart of the Convention, which is defined as “the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development”.47

In the inter-dependent relationship between man and his environment, the Preamble to the Ramsar Convention considers “the fundamental ecological functions of wetlands as regulators of water regimes and as habitats supporting a characteristic flora and fauna, especially waterfowl.” The Ramsar principles derived from the Convention's Articles are summarized below:

  1. 1

    1 The inter-dependence of man and nature (Preamble);

  2. 2

    2 Wetlands serve a fundamental ecological function as water regime regulators and habitat supporters (Preamble);

  3. 3

    3 Wetlands should be selected for the List on account of their international significance in terms of ecology, botany, zoology, limnology or hydrology (Article 2(2));

  4. 4

    4 The inclusion of a wetland in the List does not prejudice the exclusive sovereign rights of the Contracting Party in whose territory the wetland is situated (Article 2 (3));

  5. 5

    5 Wetlands represent a resource that has great economic, cultural, scientific, and recreational value (Preamble);

  6. 6

    6 Wetlands once lost are irreparable (Preamble);

  7. 7

    7 Wetlands must be protected and their progressive encroachment and loss stopped. (Preamble);

  8. 8

    8 Waterfowl that transcend frontiers in their seasonal migration are to be considered as an international resource (Preamble);

  9. 9

    9 The conservation of wetlands and their flora and fauna require national policies and coordinated international action (Preamble);

  10. 10

    10 Wetlands are areas of marsh, fen, peat land or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six meters (Article 1);

  11. 11

    11 Waterfowl are birds ecologically dependent on wetlands (Article 2);

  12. 12

    12 Suitable wetlands have to be designated with geographical coordinates on maps (Article 2);

  13. 13

    13 Wetlands may also include riparian and coastal zones adjacent to the wetlands, and islands or bodies of marine water deeper than six meters at low tide lying within the wetlands, especially where these have importance as waterfowl habitat (Article 2);

  14. 14

    14 The boundaries of wetlands may be changed without prejudice to national sovereignty (Article 2);

  15. 15

    15 In delimiting wetlands, a State shall consider its international responsibilities for the conservation, management and wise use of migratory stocks of waterfowl (Article 2);

  16. 16

    16 The national plan of action to conserve designated wetlands and the wise use of wetlands should be formulated and implemented (Article 3(1));

  17. 17

    17 Ecological change or such imminence in the nature of the designated wetlands should be immediately communicated to the body responsible for bureau duties specified in Article 8 (Article 3(2));

  18. 18

    18 All wetlands, whether designated under the Convention or not, shall be conserved as nature reserves and should be adequately looked after (“Wardening”) (Article 4(1));

  19. 19

    19 Any wetland which has been declassified or restricted in boundary by national interest must be accompanied by the payment of compensation for loss of the resources therein (Article 4(2));

  20. 20

    20 Alternate additional wetland nature reserves of an adequate portion of the original habitat should be established in the situation in No 19 (Article 4 (2));

  21. 21

    21 The conduct of research and the exchange of data and publications regarding wetlands and their flora and fauna is to be encouraged (Article 4 (3));

  22. 22

    22 Management should strive to increase the waterfowl populations on appropriate wetlands (Article 4 (4));

  23. 22

    22 The training of personnel for wetland research, management and wardening shall be encouraged (Article 4 (5)); and

  24. 23

    23 Where the wetland extends over the territories of more than one Contracting Party or where a water system is shared by Contracting Parties, there is an obligation to consult each other about the implementation of their obligations and try and coordinate and support present and future policies and regulations concerning the conservation of wetlands and their flora and fauna (Article 5).

48 The 1973 Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora, in its Preamble, recognizes that wild flora and fauna must be protected for the present and future generations as they have an evergrowing value from aesthetic, scientific, cultural, recreational and economic points of view. It recognizes that peoples and States are the best protectors of this valuable resource in addition to international cooperation to prevent their over-exploitation through international trade. There are three Appendices to the Treaty which govern the trade in species or specimens thereof, which are otherwise banned. Appendix I contains species that are threatened with extinction, Appendix II species that are likely to be extinct, and Appendix III species that are currently regulated. Species in Article 1 (a) “means any species, subspecies, or geographically separate population thereof.” “Specimen” in Article 1 (b) means, “ (i) any animal or plant, whether alive or dead; (ii) in the case of an animal: for species included in Appendices I and II, any readily recognizable part or derivative thereof; and for species included in Appendix III, any readily recognizable part or derivative thereof specified in Appendix III in relation to the species; and (iii) in the case of a plant: for species included in Appendix I, any readily recognizable part or derivative thereof; and for species included in Appendices II and III, any readily recognizable part or derivative thereof specified in Appendices II and III in relation to the species.”

In Article 1, the term “Introduction from the sea” means transportation into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any State. This Convention recognizes a scientific authority and a management authority. In Article 1 “(f) “Scientific Authority” means a national scientific authority designated in accordance with Article IX and in Article 1 (g) “Management Authority” means a national management authority designated in accordance with Article IX. The CITES Convention works through certain Fundamental Principles in Article II which refers to Appendix I, II and III species and the regulation of international trade thereof. It does not ban the trade but merely controls it. These fundamental principles are:

  1. 1

    1 Appendix I shall include all species threatened with extinction which are or may be affected by trade. Trade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.

  2. 2

    2 Appendix II shall include:

    1. (a)

      (a) all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival; and

    2. (b)

      (b) other species which must be subject to regulation in order that trade in specimens of certain species referred to in sub-paragraph (a) of this paragraph may be brought under effective control.

  3. 3

    3 Appendix III shall include all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other Parties in the control of trade.

  4. 4

    4 The Parties shall not allow trade in specimens of species included in Appendices I, II and III except in accordance with the provisions of the present Convention

The Convention in Article XIV on “Effect on Domestic Legislation and International Conventions” describes the effect of domestic legislation and international conventions and allows States Parties to impose stricter domestic regulations in the control of international trade in endangered species than which the treaty provides and for other present or future State obligations under international law. In this spirit, Article XIV (1) gives States the right to adopt: (a) stricter domestic measures regarding the conditions for trade, taking, possession or transport of specimens of species included in Appendices I, II and III, or the complete prohibition thereof; or

(b) domestic measures restricting or prohibiting trade, taking, possession or transport of species not included in Appendix I, II or III.

Article XIV (2) provides that the CITES provisions do not conflict with other national or international obligations of the States with regard to specimens. Formulated in this way, Article XIV (2) states that the provisions of CITES shall not affect the provisions of any domestic measures or the obligations of Parties deriving from any treaty, convention, or international agreement relating to other aspects of trade, taking, possession or transport of specimens which is in force or subsequently may enter into force for any Party including any measure pertaining to Customs, public health, veterinary or plant quarantine fields.

Article XIV (3) provides that other present or future international obligations of States in certain instances are not affected by the CITES provisions. These specific instances refer to the creation of union or regional trade agreement establishing or maintaining a common external Customs control and removing Customs control between the parties.

Article XIV (4) states that there is no conflict between a CITES Appendix II provision and an earlier obligation in another treaty where protection is afforded to marine species included in Appendix II of CITES as the other earlier obligation will prevail over the CITES obligation. However, there is an administrative requirement for the situation delineated in Article XIV (4) which is to get a certificate from a Management Authority of the State of introduction to the effect that the specimen was taken in accordance with the provisions of the earlier treaty. Hence, Article XIV (5) states that “Notwithstanding the provisions of Articles III, IV and V, any export of a specimen taken in accordance with paragraph 4 of this Article shall only require a certificate from a Management Authority of the State of introduction to the effect that the specimen was taken in accordance with the provisions of the other treaty, convention or international agreement in question.” Finally, Article XIV (6) notes that the CITES provisions do not prejudice the development and codification of the 1982 Law of the Sea Convention, or future claims of States or coastal or flag State jurisdiction.

49 The 1982 LOSC, Part XII on the Protection and Preservation of the Marine Environment, is supported by a strong measure of legal conviction on the part of States and represents in certain respects an agreed codification of existing principles which have become customary international law. The general obligation is laid down in Article 192, which obliges States to protect and preserve the marine environment, followed by an affirmation of the sovereign right of States to exploit their natural resources in Article 193 pursuant to their environmental policies and sovereign duty to protect and preserve the marine environment. Another provision that deals with a State's obligation to protect and preserve the marine environment from any source by national measures is Article 194 (1), which requires States to take on an individual basis where necessary measures to prevent, reduce and control pollution of the marine environment using the best practicable and available means at their disposal that are in harmony with the policies. Article 207 of LOSC on Pollution from Land-based Sources is relevant for consideration. Article 207 (1) mandates States to adopt legislation that will prevent, reduce and control land-based marine pollution from rivers, estuaries, pipelines and outfall structures. In doing this, States must also take into account internationally agreed rules, standards, recommended practices and procedures. In Article 207 (2) States are again required to take any additional measures necessary to prevent, reduce and control such pollution. Article 207 (5) imposes an obligation on States to ensure that all legislation, recommended practices and procedures referred to paragraphs 1, and 2 amongst others, should minimize the release of persistent and non-persistent toxic, harmful or noxious substances into the marine environment. It is currently not known whether the Malaysian marine environment suffers from sea-bed activities subject to national jurisdiction or from pollution activities in the Area or from pollution by dumping, pollution from vessels or pollution from or through the atmosphere, Articles 208-212 are not summarized here. With regard to enforcement from land-based sources, Article 213 provides: States shall enforce their laws and regulations adopted in accordance with Article 207 and shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through the competent international organization or diplomatic conference to prevent, reduce and control pollution of the marine environment from land-based sources.

50 The heart of the Convention on Biological Diversity (CBD) 1992 lies in the ecosystem based approach to management and in-situ conservation of a nation's biodiversity. Also, where there is scientific uncertainty, the Convention urges the application of the precautionary approach and, in certain applicable circumstances, ex-situ measures.50 Article 9. Ex-situ Conservation: Each Contracting Party shall, as far as possible and as appropriate, and predominantly for the purpose of complementing in-situ measures: (a) Adopt measures for the ex-situ conservation of components of biological diversity, preferably in the country of origin of such components: (b) Establish and maintain facilities for ex-situ conservation of and research on plants, animals and micro-organisms, preferably in the country of origin of genetic resources: (c) Adopt measures for the recovery and rehabilitation of threatened species and for their reintroduction into their natural habitats under appropriate conditions; (d) Regulate and manage collection of biological resources from natural habitats for ex-situ conservation purposes so as not to threaten ecosystems and in-situ populations of species, except where special temporary ex-situ measures are required under subparagraph (c) above: and (e) Cooperate in providing financial and other support for ex-situ conservation outlined in subparagraphs (a) to (d) above and in the establishment and maintenance of ex-situ conservation facilities in developing countries. The Convention acknowledges both the value and importance of biodiversity. It underlines in its Preamble, the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components. Biological diversity is important for evolution and for maintaining life sustaining systems of the biosphere. Article 2 sets outs the definitions of some of the key phrases and terms used in the CBD such as “biological diversity”, “biological resources”, “ecosystem”, “ex-situ conservation,” “in-situ conditions and in-situ conservation”, and the meaning of “sustainable use”. These are explained below: Biological diversity means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part: this includes diversity within species, between species and of ecosystems. Biological resources includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity. In-situ conditions means conditions where genetic resources exist within ecosystems and natural habitats, and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties. In-situ conservation means the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties. Sustainable use means the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.

Annex I: IDENTIFICATION AND MONITORING

  1. 1

    1 Ecosystems and habitats: containing high diversity, large numbers of endemic or threatened species, or wilderness; required by migratory species; of social, economic, cultural or scientific importance: or,

    which are representative, unique or associated with key evolutionary or other biological processes:

  2. 2

    2 Species and communities which are: threatened: wild relatives of domesticated or cultivated species; of medicinal, agricultural or other economic value; or social, scientific or cultural importance: or

    importance for research into the conservation and sustainable use of biological diversity, such as indicator species: and

  3. 3

    3 Described genomes and genes of social, scientific or economic importance. Article 4 deals with the Jurisdictional Scope of the Convention:

    Subject to the rights of other States, and except as otherwise expressly provided in this Convention, the provisions of this Convention apply, in relation to each Contracting Party:

    1. (a)

      (a) In the case of components of biological diversity, in areas within the limits of its national jurisdiction; and

    2. (b)

      (b) In the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction.

However, the Preamble to the CBD also points to a general lack of information and knowledge regarding biological diversity and the urgent need to develop scientific, technical and institutional capacities to provide the basic understanding upon which to plan and implement appropriate measures.

In the ecosystem based approach, it becomes necessary to anticipate, prevent and attack the causes of significant reduction or loss of biological diversity at source.

The Preamble states that in the case of indigenous peoples and local communities following traditional lifestyles on biological resources, it is desirable to share equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components. The Preamble also recognizes the role played by women in conservation and promotes their full participation at all levels of policy-making and implementation for biological diversity conservation. The Preamble also acknowledges the eradication of economic and social poverty and promotes the economic and social well-being for purposes of inter-generational equity. Other relevant provisions are Articles 12 on Research and Training, 13 on Public Education and Awareness, and 14(1) (a) and (b) on Impact Assessment and Minimizing Adverse Impacts. Article 12 on ‘Research and Training’ obliges the Government (with the assistance of developed nations if necessary) to run educational and training programs on the identification, conservation and sustainable use of biological diversity and its components. It also requires the Government to promote and encourage research that contributes to the conservation and sustainable use of biological diversity, and promote and cooperate in the use of scientific advances in biological diversity research in developing methods for conservation and sustainable use of biological resources. According to the terms of the mandate in Article 13 on Public Education and Awareness, the Government has a legal duty to promote and encourage understanding of the importance of and the measures required for, the conservation of biological diversity, as well as its propagation through media, and the inclusion of these topics in educational programs; and cooperate, as appropriate, with other States and international organizations in developing educational and public awareness programs, with respect to conservation and sustainable use of biological diversity. Finally, the language of Article 14 on ‘Impact Assessment and Minimizing Adverse Impacts’ requires the Government to introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate allow for public participation in such procedures; and introduce appropriate arrangements to ensure that the environmental consequences of its programs and policies that are likely to have significant adverse impacts on biological diversity are taken into account.

51 Article 6. General Measures for Conservation and Sustainable Use

Each Contracting Party shall, in accordance with its particular conditions and capabilities:

  1. (a)

    (a) Develop national strategies, plans or programs for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programs which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and

  2. (b)

    (b) Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programs and policies.

52 Article 7. Identification and Monitoring

Each Contracting Party shall, as far as possible and as appropriate, in particular for the purposes of Articles 8 to 10:

  1. (a)

    (a) Identify components of biological diversity important for its conservation and sustainable use having regard to the indicative list of categories set down in Annex I:

  2. (b)

    (b) Monitor, through sampling and other techniques, the components of biological diversity identified pursuant to subparagraph (a) above, paying particular attention to those requiring urgent conservation measures and those which offer the greatest potential for sustainable use;

  3. (c)

    (c) Identify processes and categories of activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity, and monitor their effects through sampling and other techniques; and

  4. (d)

    (d) Maintain and organize, by any mechanism data, derived from identification and monitoring activities pursuant to subparagraphs (a), (b) and (c) above.

53 Article 8. In-situ Conservation

Each Contracting Party shall, as far as possible and as appropriate:

  1. (a)

    (a) Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity:

  2. (b)

    (b) Develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity:

  3. (c)

    (c) Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use;

  4. (d)

    (d) Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings:

  5. (e)

    (e) Promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas:

  6. (f)

    (f) Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies:

  7. (g)

    (g) Establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health:

  8. (h)

    (h) Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species:

  9. (i)

    (i) Endeavour to provide the conditions needed for compatibility between present uses and the conservation of biological diversity and the sustainable use of its components:

  10. (j)

    (j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices:

  11. (k)

    (k) Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations:

    (1) Where a significant adverse effect on biological diversity has been determined pursuant to Article 7, regulate or manage the relevant processes and categories of activities: and

  12. (m)

    (m) Cooperate in providing financial and other support for in-situ conservation outlined in subparagraphs (a) to (1) above, particularly to developing countries. Article 10. Sustainable Use of Components of Biological Diversity

Each Contracting Party shall, as far as possible and as appropriate:

  1. (a)

    (a) Integrate consideration of the conservation and sustainable use of biological resources into national decision-making;

  2. (b)

    (b) Adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity;

  3. (c)

    (c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements;

  4. (d)

    (d) Support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced; and

  5. (e)

    (e) Encourage cooperation between its governmental authorities and its private sector in developing methods for sustainable use of biological resources.

55 UN DOC A/CONF.151/26/REV.1 (1992).

© 2012 Mary George.

* Faculty of Law and The Institute of Ocean and Earth Sciences University of Malaya.

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