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Control of land-based marine pollution in Southeast Asia : a legal perspective Cai, Tong 1993

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CONTROL OF LAND-BASED MARINE POLLUTION IN SOUTHEAST ASIA: A LEGAL PERSPECTIVE  by TONG CAI LL.B., Beijing University, China, 1988  A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIEMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF LAW  We accept this thesis as conforming  THE UNIVERSITY OF BRITISH COLUMBIA April, 1993 ©TongCai,193  In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission.  (Signature)  iz titt ltrt e t; if  of  The University of British Columbia Vancouver, Canada  Date  DE-6 (2/88)  4/7i-.^/; y3  ABSTRACT  Marine pollution from land-based sources is a new and challenging topic in international law development. Since the subject matter of land-based marine pollution is very complex in social-economic and scientific terms, the implementation of the newly developed rules of international law on land-based marine pollution would seem to vary from region to region, depending on the specific capabilities of different region. The marine environment in Southeast Asia, where there is a considerable base for land-based marine pollution, is experiencing a serious degradation from this kind of pollution. The developing countries in Southeast Asia have started to provide provisions concerning the control of landbased marine pollution in their respective legislation in either a general or a specific way. However, due to the various reasons, the current efforts on the control of landbased marine pollution from the legal aspect by these countries are far from sufficient. Many of the problems at earlier stages of development can be solved by learning experience which advanced countries have foregone in the past. As regards to land-based marine pollution control, effective legal efforts have been made by the Baltic states, the United States, and Japan. The Southeast Asia countries may borrow the appropriate ideas, methods, and operational systems worked out by these countries with suitable modification and adaptation in consonance with local customs, tradition, and social-economic peculiarities. There is considerable potential capability in the countries of Southeast Asia of forming legislative framework and establishing effective enforcement strategy for land-based marine pollution control. On the other hand, in Southeast Asia where there is a highly complex social-economic construction, the contraversies between nationalism and regionalism appear to be the major obstacles in terms of effective legal control on land-based marine pollution. Further efforts should be made to achieve a concerted regional approach as well as conresponding national commitments in the protection and preservation of the marine environment in Southeast Asia against pollution from land-based sources.  ii  TABLE OF CONTENTS Page Abstract^  ii  Table of Contents^  iii  Acknowledgements^  vi  CHAPTER I: Marine Pollution From Land-Based Sources in the Coastal Environment of Southeast Asia A. Increasing Problems of Land-Based Pollution in the Coastal Area of Southeast Asian Countries^2 B. Factors Which Cause Land-Based Marine Pollution Problems in Southeast Asia^ 7 1. Biological Factors a. Climatic Factors^ 8 b. Tolerance of Coastal Ecosystems^9 c. Mangrove Swamp Forests in the Region^9 2. Social-Economic Stress ^ 10 3. Agricultural Effluent^ 11 4. Industrial Development^ 11 a. Lack of practicable anti-pollution technology b. Small industries c. Voracious appetite of industrialized countries d. Industrial concentration 5. External Pressures^ 13 CHAPTER II: Current Legislation on the Control of Land-Based Marine Pollution in Southeast Asia A. General Initiatives of Pollution Control in  Southeast Asian Countries^ 16 1. Growing Awareness^ 16 2. Institutionalization^ 16 3. Norm-Creating Regional Activities^20  B. Regional Response to Developments in International Environmental Law^ C. Current Legislation on Land-Based Marine Pollution in Southeast Asian Countries 1. Constitutional Foundation 2. General Environmental Laws in Relation to Environmental Protection  iii  21 24 24 26  3. Specific Legislations on Land-Based Marine  Pollution Control^  D. Problems on the Control of Land-Based Marine Pollution^ Through Legal Efforts in Southeast Asian Countries 1. The Separation of Legal Rights and Responsibilities among ^ Different Levels of Government Agencies  31  41 41  2. Lack of Environmental Quality and ^ Waste Disposal Standards in Legislation 44 ^ 3. Foreign Model of ^ Legislation 45 4. Lack of Officers ^ 47 5. Role of Attorneys ^ 48 6. Nature of Liability 51 ^ 7. Public Attitudes Towards Law 53 8. Other Legislative Problems ^ 55 9. Lack of Sufficient Environmental Impact ^ Assessment 56 Chapter III: A Comparative Study on the Topic of Land-Based Marine Pollution Control Between Developed Countries and Developing Countries A. Major Legal Issues in the Experience of Developed ^  Countries in Land-Based Marine Pollution Control 59 1. The Social-Economic Dimensions of the Laws Concerning Land-Based Marine Pollution Control 57 2. The Nature of Liability ^ ^64 3. The Issue of State Responsibility 66 ^ 4. The Issue of Control Measures 68 ^ 5. The Montreal Guidelines 72  B. What is the Appropriate Type of Legal Structure  for Land-Based Marine Pollution Control in in Southeast Asian Countries ^ 1. The Role of Government Agencies ^ 2. How Stringent Should ^ Environmental Measures be Enforced 3. The Necessity of Basic Research ^ and Environmental Impact Assessment  75 75 77 78  Chapter IV: Proposals for Future Development on Land-Based Marine Pollution Control in Southeast Asia from Legal Perspective ^ A. Institutional Framework  81  B. National Policies^  83  iv  C. Legislative Recommendations 1. Establish Clearly Discernable Obligations ^88 2. Permit Administering Agencies to Tailor Their Authorities^ 89 3. Facilitate Rapid Adjustments to Changing Technology^ 90 4. Root in Reality^ 90 5. Implement Relevant Provisions of UNCLOS,III ^91 6. Harmonize State Practice and Reconcile Control Regulations for Major Common Pollutants^ 92 7. Participate in Major International Conventions ^94 D. Organizational Recommendations^  95  E. Planning Coastal Zone Management Program^98 F. Applying Cost-Benefit Rule ^  101  G. The Possibility of a Joint Contingency Plan^102 H. Training and Education^  104  I. Conducting Operational Research ^  105  J. The Role of External Co-operation and Assistance^106 K. Establishing Balance Between Land-Based Marine Pollution Control and Attracting Foreign Capital ^108 L. Conducting Environmental Impact Assessment ^109 Chapter V: Prospects for Regional Cooperation and Future Developments^  111  A. National Marine Interests of Major Southeast Asian Countries^  113  B. Developments on Regional Efforts ^  117  C.  Constraints for Regional Co-operation^ 120  Conclusion: Institutional and Organizational Framework ^126 Bibliography^  130  ACKNOWLEDGEMENTS  I would like to express my heartfelt thanks to my thesis supervisor, Professor Ian Townsend-Gault, who patiently guided me in the course of my research. Deep thanks go to Professor Karin Mickelson, whose generous help and kind advice has greatly encouraged me in the preparation of this thesis. I am grateful to the Graduate Committee of the Faculty of Law of U.B.C., especially to Professors Pitman Potter, Marilyn MacCrimmon and DeLoyld Guth, for their consistent help. Finally, I remain eternally grateful to my family and friends for their mental support. I need hardly add that I am solely responsible for whatever mistakes this thesis may contain.  CHAPTER I: MARINE POLLUTION FROM LAND-BASED SOURCES IN THE COASTAL ENVIRONMENT OF SOUTHEAST ASIA  The countries in southeast Asia have achieved rapid progress in their social-economic development for the past 30 years. 1 As environmental issues are associated with the economic development of a society, these countries have inevitably faced increasing environmental problems in their development. 2 For example, the discharge of industrial waste, which is an unavoidable result of industrial modernization, has caused serious environmental degradation in this area.  3  Moreover, the use of advanced technologies on agriculture and domestic life has brought new threat to the environment. 4 Pollution from industry, agriculture, and domestic life has not only caused damage to the environment on land, but has also caused increasing degradation on the coastal environment  1 See: P.S. Smith, "Changing World of East", (Oxford University Press: New York, London, 1990) at 15. 2 For general information on marine pollution in Southeast Asian seas, see: FAO/IPFC Secretariat, "Preliminary Review on the State of Marine Pollution in East Asian Waters"; IOC/FAC/UNEP, "International Workshop on Marine Pollution in East Asian Waters"; Chen, Meng Kin, "Strategies of Industrialization in ASEAN Countries" in Saw Swee-Hock and Lee Soo Ann, "Economic Problems and Prospects in Asean Countries" (Singapore, Singapore University Press, 1987), at 83-101. 3  Ibid, at 48.  4  For details, see: ibid, at 70. 1  of this region.  5  Thus, land-based marine pollution, which has  been an environmental problem for almost all the regional seas in the world, is a major problem for the protection of the coastal marine environment in Southeast Asia. It should be noted that the special biological and physical features of the coastal environment in this region have made the pollution from land-based sources as a result of social development more serious. 6 In this chapter, an examination is given on the situation of marine pollution from land-based sources in this region, with special emphasis on the factors that cause these land-based marine pollution.  A. Increasing Problems of Land-Based Marine Pollution in the Coastal Area of the Countries in Southeast Asia It is generally conceded that, in their struggle for social and economic development in past 30 years, the countries in Southeast Asia have not become seriously concerned with the degradation of the marine environment by until recently. 7 Only a few surveys of the level of marine  5 See: Chua, T.E. and Paw, J.N., "The Environmental Impact of Aquaculture and the Effects of Pollution on Coastal Aquaculture Development in Southeast Asia" (1989) 20 Marine Pollution Bulletin 335 at 337 6 For more on the physical structure of Southeast Asian waters, see: Wyrtki, K., "Physical Oceanography of the Southeast Asian Waters" (La Jolla, California: Scripps Institute of Oceanography, 1981).  See: Chulasia, B. and Siriratpiriya, O., "Our Environment" (Bangkok, 1988) at 3. 7  2  pollution from land-based sources have been made in this region. 8  Conventional thermal power is scattered throughout the region, with the greatest concentrations in the vicinity of the large cities, particularly Manila, Bangkok, and the Singapore. 9 Several geo-thermal outfall are located along the coast in the eastern Philippines." Organic and biological pollutants come from the following sources: firstly, human waste, for example, waste from domestic life; secondly, agricultural waste, for example, waste from the producing of palm oil or rubber, or from tapioca processing, animal excrement, or commercial fertilizers; and thirdly, the discharge from industries, for example, waste from food and beverage processing or from textile producing. 11 Domestic pollutant concentrate on the areas that are densely populated. Almost all large cities in this region are  8 Environmental surveys began in early 1980s in Southeast Asian countries, eg. in Singapore(1981), Thailand (1983), the Philippines (1983). But most of the environmental studies taken in the 1980s were conducted by private organizations and were limited to specific regions. Large-scale official environmental surveys began in mid-1980s by the governments of these countries. 9 10  Ibid. Ibid.  See: Kiss, A.C., "The International Protection of the Environment" in MacDonald, R.J. and Johnston, D.M., "The Structure of International Law" (The Hague, Martinus Nijhoff, 1983) p.43. 3  situated in the coastal area or by the rivers that flow into the sea. 12 Most of the population in this region concentrate on the island of Java in Indonesia, the metropolitan area of Manila in the Philippines, Bangkok in Thailand and the Singapore City in Singapore." Therefore, extensive sewage pollution occurs in the above area.  14  In Malaysia, Sabah and  Sarawak, concentrations of pollutants from domestic sources are about twice as great as from industrial and agricultural sources." The greatest concentration in this region was on the west coast of peninsular Malaysia. Metropolitan Manila produces a liquid pollution load of about 130,000 tons BOD annually, most of it from domestic sources.  16  In the Bangkok  region the liquid pollutant load is estimated to be about 83,000 tons BOD per year. Water pollution arises primarily from domestic sewage, which is uncontrolled and eventually  12 See: Chua T.E. and Paw, J.N., "Aquaculture Development and Coastal Zone Management in Southeast Asia: Conflicts and Complementarity" (Proceedings of the Fifth Symposium on Coastal and Ocean Management, Seattle, Washington, U.S.A., 1987) at 98.  13 14  Chua, T.E. and Paw James N., "The Environmental Impact of Aquaculture and the Effects of Pollution on Coastal Aquaculture Development in Southeast Asia" (1989) 20 Marine Pollution Bulletin 335.  15  See: Chua T.E. and Charles, J.K., "Coastal Resources of East Coast Peninsular Malaysia" (Malaysia, University of Malaysia Press, 1988) at 17; Chua T.E. and Mathias, J.A., "Coastal Resources of West Sabah" (Malaysia, University of Malaysia Press, 1989) at 6. 16  See: Mahmud, A.A., "Protection of Malaysia's Marine Environment" (Kualar Lumpur, Institute of Strategic and International Studies, 1988) p.5 4  reaches the marine region. The liquid pollution load from the upper gulf is somewhat larger, 92,600 tons BOD per year, and most of it is from industrial sources. 17 Agricultural waste come from logging, terrestrial mining, and offshore mining. Luzon in the Philippines has the most extensive logging-derived sedimentation. 18 The Bight of Bangkok, the west coast of Peninsular Malaysia, north Java and Madura, and the Philippines have extensive regions of sedimentation from agriculture-related activities. 19 The waters in the Philippines, particularly those off western Luzon, Negros, Cebu, Samar, Balabac, and the Calamain group, receive considerable sediment from terrestrial mining activities. Less extensive patches of polluted waters are located off the coast of Sarawak, north and east of Jakarta, and in Kepulauan Lingga. 2° To meet the demands of the construction industry during the boom of the late 1970$ and early 1980$, many rubber plantations in Singapore were converted into sand pits, especially in the eastern part of the island, which silted 17  Hungspreugs, M. and Utoomprurkporn, W., "The Present Status of the Aquatic Environment of Thailand" (1989) 20 Marine Pollution Bulletin 327 18 The Philippines: National Environmental Protection Council, Solid Waste Subsidy Programme, "Accomplishment Report" (Manila, 1989). 19  ^T.E. & Paw, James N., "The Environmental Impact of Aquaculture and the Effects of Pollution on Coastal Aquaculture Development in Southeast Asia" 2 0 Marine Pollution Bulletin 335  20  Ibid. 5  watercourses and eventually led to the changes in the coastal marine habitat. 21 Heavy metals, such as lead, mercury, cadmium, zinc, and silver are derived from smelting, electronics, plastics, petrochemical and mining industries, domestic wastes, and weathering. Heavy metals may accumulate in fish, shellfish, sea cucumbers, and seaweed tissues, rendering them unsafe for human consumption. Sediments and water from the lower reaches of rivers draining into the Gulf of Thailand reveal high concentrations of mercury, lead and zinc. 22 In Indonesia heavy metals are a major localized source of pollution limited to coastal waters off the larger urban centres.  23  In Malaysia  the Juru River adjacent to the Perai Industrial Estate reveal high level of mercury, cadmium, and cooper. 24 In Singapore, levels of mercury are high in the Jurong river.  25  Synthetic chemicals such as the DDT and PCB in paints, plastics, and paper products are widely used in agricultural, 21  Huat, T.T., "Sewage, Sewage Treatment and Disposal in Singapore" (Singapore, 1982) p.133 22 Siriruttanachai, S., "Accumulation of DDT, PCB and Certain Heavy Metals in the Gulf of Thailand" (Bangkok, Chulalongkorn University Press, 1988) p.5 23 Hungspreugs, M., "Marine Pollution by Heavy Metals in the East Asian Seas Region" in Dahl, A.L. and Carew-Reid, "Environment and Resources in the Pacific" (Geneva, UNEP Regional Seas Report and Studies, 1986) at 239-248. 24  Ibid.  25 Chung, S.P., "Pollution of Water by Hydrocarbons and Heavy Metals Around Singapore" in Hew, C.S. et al, "Proceedings on 12th Symposium on Our Environment" at 276-93.  6  industry, and public health programs in this region, but little is known of their distribution and impact.  26  The  amount of pesticides and herbicides used in this region has increased in recent decades. In the major rivers of the Phillipines, 76 percent of the samples contain pesticide concentrations exceeding acceptable standards. 27 The DDT range in the rivers of Thailand is 0.1 to 3.4 parts per billion, and organochlorines have been found in five major rivers in Thailand. There is a higher level of DDT residue in the Gulf of Thailand than in the Andaman Sea due to the larger and more agriculturally developed watersheds draining into the gulf. 28  B. Factors that Cause Land-Based Marine Pollution Problems in Southeast Asia Southeast Asia is a region with high complexity of social-economic factors as well as unique bio-physical formations. The following is an overview on the different natural and social factors which contribute to land-based marine pollution in Southeast Asia. 26 Siriruttanachai, S., "Accumulation of DDT, PCB in the life in Southeast Asia" in Siriruttanachai, S., "Accumulation of DDT, PCB and Certain Heavy Metals in the Gulf of Thailand", (Bangkok, Chulalongkorn University Press, 1989) at 4. 27 The Philippines: National Pollution control Commission, "Current Environmental Situation" (Manila, 1991). 28 • •  Siriruttanachai, S., "Accumulation of DDT, PCB and Certain Heavy Metals in the Gulf of Thailand" Bangkok, Chulalongkorn University Press, 1989) p.7. 7  1. Biological Factors: a. Climatic Factors Southeast Asia lies across tropical and sub-tropical areas. The climate is divided into rain and dry seasons. High annual temperature, high humidity, and the concentration of high annual rainfall into definite wet seasons produce deep weathering of soils and varied seasonal flow patterns of rivers. 29 Tropical rainforests in upland areas are thought to modify nutrient supplies in coastal areas through hydraulic influences and the control of sediment loads carried by rivers. 30 Within areas such as Malaysia, a marked increase in the seasonality of waterflows is taking place because of the clearance of rainforests in upland areas. 31 With the aggravated clearance of rainforests, sediment loads are increasing in tropical coastal zones. It has been reported that 1.5 million tons of additional sedimentation has caused the shrinkage of fishing grounds in Thailand.  32  The incidence  of coastal flooding during wet seasons and salt intrusion in coastal soils and river systems will increase in accordance 29 Wyrtki, K., "Physical Oceanography of the Southeast Asian Waters" (LaJolla, California: Scripps Institute of Oceanography, 1981) p.4. 3° Ibid. 31  Maheswaran, A. & Singham, G., "Environmental Problems in Malaysia" (Kuala Lumpur, Division of Environment, 1986) p.4. 32 Piyakarnchana, T. and Mallikamare, S., "Environmental Problems in Thailand" in Kato,I. and Kumamoto, N., "Environmental Law and Policy in the Pacific Basin Area" (Tokyo, University of Tokyo Press, 1987). at 47-63.  8  with the seasonal changes in waterflows. 33 b. Tolerance of Coastal Ecosystems Little is known about the tolerance of terrestrial and aquatic ecosystems in this region. The terrestrial and aquatic systems in Malaysia are termed as "fragile", being susceptible to degeneration of soil fertility. 34 Tropical aquatic ecosystems are noted as being particularly susceptible to thermal pollution. Owing to high water temperatures, most aquatic organisms are believed to live near lethal limits. 35 c. Mangrove Swamp Forests in the Region A unique feature in the tropical coastal zones in this region is the presence of mangrove swamp forests. Mangrove swamps form the dominant land type in the coastal zones of Southeast Asian countries. 36 The capacity of mangroves to trap terrigenous sediments is well known. Their ability to withstand high salinity, wind and wave forces allows their extensive root systems to reduce the velocity of water circulating about them. This slows down the process of erosion and reduces sediments in coastal waters. However, the velocity of the water in mangrove areas depends upon the quality and quantity of the water coming from the drainage of adjacent m  Ibid.  34  Supra note 28.  m  Ibid.  Hill, R.D. and Bray J.M., "Geography and the Environment in Southeast Asia" (Hong Kong, University of Hong Kong Press, 1986) p.125. 36  9  coast areas. The increase of the sediment load or pollutants such as herbicides in coastal water can affect the growth and production of coastal mangroves significantly. The loss of productivity of mangroves can lead to reduction in the ability to remove pollutants, or to stabilize sedimentation and erosion. Therefore, the unique mangrove land-form in this region is easily subject to the stress from coastal wastes.  2. Social-Cultural Stress The countries in Southeast Asia have been registering high annual rates of population growth of three percent, 37 which contributes to the pressure on coastal areas. In the metropolitan centres, the rates of population growth have been much higher due to a steady stream of rural to urban migrations. The movement of population into the urban centre is a symbol of the lack of employment opportunities and the underdeveloped conditions of the rural areas. Urbanization is not necessarily destructive to the environment, but in many areas, governments have neither prepared for, nor have they been able to cope with the problem of population growth and urbanization. The influx of people brings about a lot of problems with regard to waste disposal. For example, in Malaysia, only 11.9 percent of the urban population use flush toilets connected to the sewerage system. Another 44.3 percent of the urban population are using flush toilets connected to 37  ASEAN Yearbook, Vol. 1991, p.8. 10  septic tanks, and 34.7 percent are served with the conservancy (or bucket) system while 9 percent have no facilities. 38 It was also reported that only 11.0 percent of the urban population used facilities connected to community waste-borne sewerage systems by 1990. 39 As most of the major cities in the region are located in coastal areas, with the increase of population and urbanization, pollutants from domestic wastes put great pressure on the marine environment. 3. Agricultural Development The countries in Southeast Asia, except Singapore, have a high productivity in agriculture. The processing of agricultural products, such as rubber, palm oil, copra, and rice is highly polluting, because agricultural farms normally employ a wide selection of pesticides to combat insects and other pests. The agricultural waste effluent is often directly discharged into open channels, which causes severe water contamination, including the introduction of toxic materials. 4. Industrial Development The developing countries in Southeast Asia are in the initial stage of industrial development. They are not yet in a stage to provide adequate waste treatment devices as well as facilities. Besides, a considerable part of their industry is based on agricultural products, such as palm oil mills and  38  The Philippines: National Environmental Protection Council, Solid Waste Subsidy Programme Report, 1989. 39  Ibid, 1990. 11  rubber factories, where there is not much available antipollution technology. In addition, small industries form an important part of the industry of the developing countries in Southeast Asia." There are certain common characteristics of small industries that could pose impediments to the environment. Firstly, the size of a small industry is usually too small to install adequate sewage systems. Secondly, small industries lack adequate technical and financial resources to manage their waste disposal systems. Employers and workers may be completely ignorant or unaware of the various types of environmental effects which may arise from the manufacturing processes they are engaged in. The management of such factories operates on a shoe-string budget and often cannot afford basic essential services for environmental control. Third, such factories are not inspected as frequently as they should be mainly because there are too many of them and they are often scattered all over the country. It is, therefore, difficult to keep the factories of small industries under strict environmental control. Small industries in Southeast Asia contribute considerably to industrial wastes in this region. Moreover, the increasing investment of industrialized  40 Chen, Meng Kin, "Strategies of Industrialization in ASEAN Countries" in Saw, Swee-Hock and Lee, Soo Ann, "Economic Problems and Prospects in ASEAN Countries" Singapore, Singapore University Press, 1987) at 83-101.  12  countries in Southeast Asia is another reason for the increasing industrial pollution in this region." The appetite of the industrialized countries for the continued supply in ever-increasing quantities of raw materials requires intensified efforts to explore and extract new sources of energy, mineral, and timber resources. They also need intensified cheap labour forces to supplement their advanced industries. Besides, industrialized countries where strict environmental regulations are in force tend to shift their investment to developing countries where effective environmental controls are not established. On the other hand, the developing countries in Southeast Asia, in the initial stage of industrial development, need foreign capital to stimulate their development to some extent. Attractive terms are offered to induce foreign industrial investment. There is a big portion of foreign investment in the industries of Southeast Asian countries. However, environmental regulations for foreign investment are not soundly established and, in most cases, far from enough. Furthermore, industries in these countries are concentrated in the coastal area, and most of them are along rivers. 42 Industrial wastes are carried by rivers and entered into marine environment when rivers go into the sea. 5. External Pressures 41 42  Ibid. 13  The management of marine environmental requires the common effort and coordination of coastal states. Because many coastal resources such as fisheries or oil and minerals are regarded as common property, and because of internal pressures from industrial development and population growth, exclusive economic zones are being adopted to protect the future of individual countries. In addition, the need for national security and disputes over territorial boundaries can create barriers to the communication between the coastal states. Such obstacles, coupled with the lack of scientific information, can lead to a lack of appreciation of the common basis of problems of marine environmental managemnet. Unilateral solutions such as exclusive zones will do little to improve the exchange of existing information or the development of cooperative programmes to deal with regional marine environmental problems.  14  CHAPTER II: CURRENT LEGISLATION WITH RESPECT TO MARINE POLLUTION CONTROL IN SOUTHEAST ASIA  There are three perspectives from which to approach the management of the marine environment: the legal, the economic, and the scientific, all of which are linked with one another. No one can find a well-balanced and reasonable approach to the management of the marine environment without taking all three into consideration. The countries in Southeast Asia are in the early stages of their efforts on the management of the marine environment, and they have started to take a series of countermeasures against marine pollution from legal, economic, and scientific perspectives.  1  The legal approach is based on a system of  general and specific laws involving the protection of marine environment. The economic approach consists mainly of various industrial, agricultural, and municipal projects which minimize the harmful effects of human activities on the marine environment and promote the restoration of the marine ecosystems. The scientific approach is conducted through  1 For more on the marine environment management in Southeast Asian countries, see: Jaefar, A.B. & Valencia, M.J., "Environmental Management of the Malacca/Singapore Straits: Legal and Institutional Issues" 25 Natural Resources Journal 195; Johnston, D., "Environmental Management in the South China Sea: Legal and Institutional Developments" in "East-West Environment and Policy Institute Research Report"; UNEP, "Draft Action Plan for the Protection and Development of the Marine Environment and Coastal Areas of the Southeast asian Region', Doc.#UNEP/EAS.1 (April, 1989). 15  scientific research on the marine environment and the means to the protection of marine environment, though the efforts in this regard have been quite limited in the region. In this chapter, the legal efforts on marine pollution control in five major Southeast Asian countries are examined country by country. Special emphasis is put on the existing problems these countries are facing in their efforts on marine pollution control in the legal approach. A. General Initiatives of the Region on Pollution Control 1. Growing Awareness After a long period of silence, the governments of the countries in Southeast Asia have now begun to put environmental issues on their political agenda. Government officials, relevant interest groups, the media and the public at large began to address themselves to environmental concerns. 2 2. Institutionalization One of the features of the development in this region's environmental protection is the emergence of high level, special government agencies charged with the protection of the state's land and marine environment and generally authorized to carry out coordination, policy planning, regulating,  2  See: ESCAP, Transnational Corporations and Environmental Management in Selected Asian and Pacific Developing Countries (Bangkok, 1988). 16  conservation and promotion. 3 Specifically, in Indonesia, the institution in charge is the Ministry of Population and the Environment. 4 In Malaysia, the institution is the Ministry of Science, Technology and Environment.  5  In the Philippines, the  institution is the Department of Environment and Natural Resources and the National Environmental Protection Council (chaired by the Minister of Human Settlement). 6 In Singapore, the institution is the Ministry of the Environment.  ?  In  Thailand, the institution is the National Environmental Board. 8 At the regional level, environmental administration is served mainly by two international organizations - the Economic and Social Commission for Asia and the Pacific(ESCAP)  3 See: Rory Fonseca, "Governmental Planning and Environment" in Riaz Hassan, "Southeast Asia: Society in Transition" (Kuala Lumpur: Oxford University Press, 1986). 4 See: Soegiarto, A., "The Indonesian Marine Environment :Their Problems and Management" (Jakarta, December, 1988). 5  See: Abdul Kadir & Mohd Kassim, "Legal Framework for Environmental Control in Malaysia" (Malacca, 1984). See: R. Lesaca, "Pollution Control Legislation and Experience in a Developing Country: The Philippines", 18 Journal of Developing Areas 538. 6  7 See: Chia, Lin Sien, "Environmental Pollution - the Search for a Solution in Singapore" in R.D.Hill & Jennifer M. Bray, "Proceedings of Symposium on Geography and the Environment of Southeast Asia" (Department of Geography, HongKong University, 1988). 8  See: Jittirat,M., "Government Policy and Environmental Conservation" in B. Chulasai & 0. Siriratpiriya, "Our Environment" (Bangkok, 1985). 17  and the United Nations Environment Program (UNEP).  9  A more significant development in the institutional setting for environmental management in the region has been the formation of sub-regional environmental programs, such as the ASEAN Environment Program (ASEP) .  lo  Moreover, there are  non-governmental organizations which, apart from generally promoting environmental awareness and raising public consciousness, have been instrumental in the formation of national policies and laws as well as regional agreements." The statutory framework for environmental protection in the region has also been strengthened substantially, although the scope of the relevant legislation varies considerably from one country to another. Given the different techniques of control adopted by the various countries, it is evident that a unified approach to the management of the marine environment in this region has not evolved. The most common techniques adopted by these countries are regulatory measures such as regulating discharge standards, which are viewed as a 9 For more information about the structure and functions of UNEP, see Brunnee, Acid Rain and Ozone Layer Depletion: International Law and Regulation 67 (1988). 10 The ASEAN Environment Program (ASEP) is a collective effort by Indonesia, Malaysia, the Philippines, Singapore, Thailand and Brunei to rationally manage the natural resources of the region with the aim of ensuring sustained economic development. Identified priority ares for co-operative effort are as follows: (1) environmental management including environmental impact assessment, (2) nature conservation and terrestrial eco-system; (3) marine environment; (4) industry and environment; (5) environmental education and training, and (6) environmental information.  supra note 8, at 10. 18  practical forms of contro1.  12  In addition, a widely accepted  technique in this region is the "polluter-pays-principle" which underlies much of the legislation in the region, taking the form of user and polluter charges.  13  Other typical  phenomena among the countries in this region are the utilization of incentives as a control technique 14 and the adoption of economic sanctions as enforcement tools.  15  However, the countries in this region do not have formal enforcement schemes in the countryside. Citizen participation in surveillance, monitoring or enforcement is not generally  12  See: ESCAP, "Status of Environmental Legislation in the ESCAP region", in "Integration of Environment into Development: Institutional and Legislative Aspects", (Bangkok, 1985) at 125. 13  Ibid, at 127.  14 Incentives in the form of preferential tax treatment like tax credits on importation of pollution abatement facilities not locally available, accelerated depreciation allowance on investment in the control equipment, loans and other assistance program during a limited period of time may also be used to encourage compliance with regulatory standards. They are applicable not only between the government and the industry or trade but also between the central and local government. For example, the central government may subsidize part of the cost of the installation of sewage treatment plants for which municipal governments are responsible under the law. See ESCAP, "Status of Environmental Legislation in the ESCAP Region", in "Integration of Environment into Development: Institutional And Legislative Aspects" (Bangkok, 1985) at 139-40. 15 These are not effluent charges or pollution taxes but an economic penalty equal. They work by imposing on a company a liability that is directly related to the financial savings which result from not complying. For example, a cement manufacturing company that fails to install an anti-pollution device worth $1,000 becomes liable for an economic penalty of the same amount for the delay. Id. at 140.  19  recognized or encouraged.  16  Moreover, the countries in this region have not been successful in implementing and enforcing environmental policies. As discussed in the following section, the lack of implementation and enforcement is due to various factors, including inadequate financial, technological and administrative resources, corruptive judicial practice, the low demand for environmental quality, and the existence of different interest groups. 3. Norm-Creating Regional Activities Despite problems with implementation and enforcement, support has been given to norm-creating activities. The 1978 ASEAN Environment Program (ASEP)" generated action plans for the priority areas of marine environment, nature conservation and environmental education as well as several ministerial declarations pledging to protect the marine environment in this region. 18 The strongest expression of the commitment by these countries is the 1985 Agreement on the Conservation of  See, however, the Philippines PD 1160, which empowers private citizens who are village officials to enforce pollution control and other environmental laws. Id. at 144-45. Currently, more than 50% of industrial pollution reports are made by these officials. 16  17  See also supra note 14 (discussing ASEP).  18  These declarations include: the 1981 Manila Declaration on the Environment; the 1984 Bangkok Declaration combined with a Declaration on Heritage Parks and Resources as well as the Resolution on Policy Guidelines for Implementation; and the 1987 Manila Summit Declaration. 20  Nature and Natural Resources," which is considered the most modern regional instrument ever adopted in this region on the conservation of marine environment.  20  This agreement closely  reflects the thought of the World Conservation Strategy.  21  B. Regional Response to Developments in International Environmental Law 1. "Sustainable Development" Of particular importance in the Southeast Asian countries' environmental context is the introduction of the key concept of "sustainable development", which pertains to the integration of environmental considerations into the development planning process so that long-term economic development is ensured while the quality of life of present and future generations is preserved and improved.  22  Countries in this region have long considered economic development as a most important goal, and the conflict between 19  (1985) 15 Environmental Policy and Law 64.  20  Ibid.  21  "Note the 1976 Convention on Conservation of Nature in the South Pacific" in Kiss, "Selected Multilateral Treaties in the Field of the Environment" at 47, 463. 22  See generally: World Commission on Environment and Development (WCED), "Our Common Future" (London: Oxford UP, 1987). The WCED's findings and recommendations were endorsed in General Assembly Resolutions 42/186 & 187, Dec. 11, 1987, and a sub-item was included in the provisional agenda of the General Assembly's Forty Third Session (1988) entitled "A Long-Term Strategy for Environmentally Sound the Sustainable Development." See also WCED, Legal Principles for Environmental Protection and Sustainable Development, (1986) 25 I.L.M. 494. 21  the demands of economic growth and an ecologically-sound environment has long existed.  23  However, it is increasingly  realized in the region, as well as globally, that the irrational use of natural resources and degradation of the environment which occur in the process of economic development will in turn impede economic development itself. Hence, in the long run, the conservation of natural resources and environment and the development of economy are not incompatible but mutually reinforcing goals.  24  The 1985  Agreement on the Conservation of Nature and Natural Resources 25 among the five ASEAN countries provides in its preamble that "the relationship between conservation and social-economic development implies both that conservation is necessary to ensure sustainability of development and that social-economic development is necessary for achievement of conservation on a lasting basis." 26 The same idea is incorporated in another formal document of relevance to the region, the 1980 Declaration of Environmental Policies and Procedures Relating to Economic Development.  27  23 See:  Hill, R.D. and Bray, J.M., "Geography and the Environment in Southeast Asia" Hong Kong, University of Hong Kong Press, 1986) at 47. 24  Ibid, at 50.  25  (1985) 15 Environmental Policy & Law 64.  26  Ibid.  27 (1980) 19 I.L.M. 524 The declaration was adopted by Donors of Development Assistance; the African Development Bank, the Arab Bank for Economic Development in Africa, Asian Development Bank,  22  As a basic principle, states are under an obligation to ensure that the conservation of natural resources and the environment is treated as an integral part of the planning and implementation of development activities. The principle was confirmed by the five ASEAN states who have undertaken to guarantee, within the framework of their respective municipal laws, that "conservation and management of natural resources are treated as an integral part of development planning at all stages and at all levels." 28 A general commitment to the principles of environmentally sound and sustainable development in this region has also been expressed in Resolution XLIV adopted by ESCAP in its April 1988 session, of which all of the countries in this region are member states. The resolution invites member states to "integrate environmental considerations into their development policies and programs aimed at contributing to environmentally sound and sustainable development."  29  Indonesia, Malaysia and the Philippines have in fact incorporated the concept of "sustainable development" into  World Bank, Commission of European Communities, Organization of American States, the U.N. Development Program and the U.N. Environment Programme. The declaration states that "in the long run environmental protection and economic and social development are not only compatible but interdependent and mutually enforcing." Ibid. 28  1985 ASEAN Agreement on the conservation of Nature and Natural Resources, Article 2. See (1985) 15 Environmental Policy & Law 64. 29  6 ESCAP Environment News 5-6 (April-June 1988). 23  their constitutions, general legislations or decrees." However, despite this recognition, actual planning linkages between the environment and the development in this region are still weak. An effective implementation of sustainable development has not been achieved. It is also apparent that a practical interpretation of the concept varies among countries in the region, depending largely on their respective level of social and economic development.  C. Current Legislation 1. Constitutional Foundation Though none of the countries in Southeast Asia provides, in their constitutional law, stipulations which directly involve the control of marine pollution from land-based sources. However, all of them include provisions which expressly recognize the importance of preserving environmental quality, which constitutes an important prerequisite to successful environmental management, including the control of land-based marine pollution. It is interesting to take a look at Thailand's recent constitutional history. The Constitution of 1974 was a document of some length, and no less than eight of its 238 articles dealt specifically with the importance of maintaining  30  See: Constitution of Malaysia, Article 23; Philippine Constitution, Article XV; Philippines, Presidential Decree No. 1221. 24  the nation's environmental integrity. 31 By contrast, the next Constitution (October 1976) and the present one (the "Interim Constitution" of November 1977), two much shorter documents, contain no substantial reference to environmental protection. But it is clearly indicated that the environmental issue has been treated far more seriously since October 1976 than during the preceding two years. 32 Although the Malaysian Constitution does not deal explicitly with environmental protection, it has some important implications for environmental management. Article 74 of the Federal Constitution provides that marine environment as a state subject, and any action against the protection of the marine environment constitutes the violation of the Constitution.  33  The Constitution of the Philippines also contains no direct reference to the control of marine pollution. However, it does establish that the ownership of all natural resources, including coastal waters, is vested in the state and may not be permanently alienated. 34 This principle implies the state's continuing authority to regulate the use of natural  Constitution of Thailand, 1974, Article 238. 32 For details of Thailand's recent development on environmental protection, see: National Environment Board of Thailand, "Environmental Status of Thailand" (Bangkok, 1988). m  Constitution of Malaysia, Ninth Schedule.  34  Philippine Constitution, Article XIV, section 8. Excepted from the non-alienation restriction are agricultural, industrial or commercial, residential, and resettlement lands of the public domain. 25  resources, and it therefore furnishes the legal basis for comprehensive environmental planning and management. 2. General Environmental Laws in Relation to Control of Marine Pollution The need to cope with the increasing environmental problems has brought about a process of integrating environmental considerations into the mandate of legislative authorities in these countries. The following is an overview of environmental legislation in the Southeast Asian countries, being considered here with specific emphasis on the control of marine pollution from land-based sources. a. Malaysia Environmental consciousness in Malaysia can be said to date as far back as the 1920s when various water enactments were passed. 35 There are currently about 34 laws which deal with the protection of the natural environment in a general way. 36 The most recent legislation concerning the environment is the Environmental Quality Act, 1974. As the name implies, this act relates to the prevention, abatement and control of pollution and the enhancement of the environment. For the purpose of protecting coastal waters against pollution from land, Section 25 is of special 35 The earliest environmental enactment in Malaysia was the 1920 Waters Enactment. 36  For a list of environmental related legislation in Malaysia, see: Lee Tien Tien, "Law and the Protection of the Environment" (Kuala Lumpur: Faculty of Law, University of Malaya Project Paper, 1986). 26  relevance. Section 25 prohibits, except under license, any person from emitting, discharging or depositing any waste into any waters, directly or indirectly through access to any water. 37 The prohibition extends to an act of placing any waste in a position where it falls, descends, drains, evaporates or is washed or blown off or percolates into any waters. 38 The Environmental Quality Act is administered by the Division of Environment (DOE) within the Ministry of Science, Technology and Environment.  39  The DOE is structured into  three main units, namely the Water Pollution Control Unit, the Air Pollution Unit and the Administration and Co-ordination Unit. The control of marine pollution from land-based sources is within the responsibility of the Water Pollution Control Unit, under which there are several committees dealing specifically with pollution from different land sources," 37  Malaysia: Environmental Ouality Act, 1974, S.25.  38  Ibid.  39 The Division of Environment (DOE) of Malaysia was created with the Ministry of Science, Technology and Environment in April 1975. The DOE is charged with the responsibility of administering the Environmental quality Act. The DOE is headed by the Director General of Environmental Quality appointed by the Minister of Science, Technology and Environment. In addition, an environmental Quality Council advises the Minister on matters pertaining to the environment. The Council has contributed positively to supervising the public sector, industry and the scientific community to minimise environmental degradation and the twin task of environmental improvement. 40 See: Lee Tien Tien, "Law and the Protection of Environment" (Kuala Lumpur: Faculty of Law, University of Malaya Project Paper, 1986) p.25.  27  and a number of specific regulations in relation to pollution  from land-based sources are made to strengthen the  Environmental Quality Act. These specific regulations will be discussed in the next section of this chapter. b. Singapore In terms of economic development, Singapore is the most developed country in Southeast Asia and is regarded as an environmentally-sensitive country. The most significant attempt made by the government of Singapore to tackle the environmental problems is the setting up of the Anti-Pollution Unit under the Prime Minister's Office in 1980.  41  In 1982,  the Ministry of the Environment was established to assume the responsibility of maintaining the general hygiene and sanitation of the country, including the provision of sewage facilities. 42 Under the administration of the Ministry of Environment, the Environmental Public Health Act was passed in 1983, and the Environmental Public Health Regulations were passed in 1984; the latter focused on the prohibition on discharge of trade effluent into water courses. 43 c. Thailand The most important law regarding environmental conservation in Thailand is the Improvement and Conservation  41  See: Bhathal, R.S. and Chen, P.S., "The Singapore Environment" (Singapore: University of Singapore Press, 1983) p.13. 42  Ibid, p.14.  43  Ibid, p.18. 28  of National Environmental Quality Act (1975)  . 44  As a result  of its enactment, the National Environmental Board was set up in order to address environmental problems.  45  The Board's  effectiveness depends very much on voluntary cooperation of other public agencies although it is empowered to require government agencies, state enterprises and persons to submit documents and data concerning projects or schemes considered potentially dangerous to the environment." The Board only has the power to recommend remedial measures to the Council of Ministers. 47 The usual practice of the Board is to coordinate the work of different government agencies, state enterprises, and private organizations on matters concerning environmental quality.  48  There are also a number of laws which indirectly deal with the conservation of the environment. Some of them relate to the control of industrial pollution and others relate to the prevention of water pollution.  49  However, there is no act  44 See: Jittirat, M., "Environmental Conservation Through Laws" in Chulasai, B. and Siriratpiriya, 0., "Our Environment" (Bangkok, 1988) p.31. 45  Ibid. p.32.  46  Thailand: Promotion and Conservation of Environmental Quality Act, 1975, Section 6. 47  Ibid. Section 14.  48 Jittirat, M., "Environmental Conservation Through Laws" in Chulasia, B. and Siriratpiriya, 0., "Our Environment" (Bangkok, 1988) at 35-37. 49  Ibid, p.38. 29  dealing directly with the prevention of land-based marine pollution. d. The Philippines The Philippines may be considered to have the most comprehensive legislation on environmental protection among the countries in Southeast Asia. While basic elements of environmental law are contained in the Constitution," specific environmental enactments are contained in various Presidential Decrees." The major pieces of legislation include (1) The Philippines' Environmental Code contained in P.D. 1152, 1977. Section 4 of the Code deals with waste management, which prohibits undue waste disposa1.  52  The Code  requires a system of environmental education 53 which is of great importance to the enforcement of the Code. (2) The Pollution Control Law contained in P.D. 984. The Law establishes the National Water and Air Pollution Control Commission (NPCC). The NPCC is empowered to promulgate appropriate rules and regulations, with the corresponding legal sanctions such as imposing penalties, and closing 50  18, 21.  See: The Constitutional Act of the Philippines, Article 15,  51 ^Tolentino, A., "Environmental Law in the Philippines" (Manila, 1987) p.8. 52 See: The Philippines National Environmental Protection Council (NECP), "Philippine Environmental Laws" (Manila, 1981) p.13.  " Section 8 of the Code. See: Ibid. p.14. 30  operations of the violators.  54  e.Indonesia The general environmental legislation in Indonesia is the 1982 Basic Decisions on Environmental Management. The Act contains detailed provisions concerning the standards of effluent disposa1.55 The Act also specifies that environmental development projects, including land-based marine pollution control measures, should be accompanied by an environmental impact assessment process and be carried out in an orderly manner by appropriate institutions.  56  3. Specific Legislations on the Control of Land-Based Marine Pollution a. Malaysia Malaysia has very comprehensive legislative regulations on waste releases from land-based sources. Malaysia's  Environmental Duality Act of 1974 is a major piece of environmental legislation regulating releases of wastes from all sources except those from mining, offshore exploration and exploitation, agriculture, logging, and earthworks. 57 Under the Act, three sets of waste regulations have been introduced. 54  Ibid. p.18.  55 See: Articles 15-19 of 1982 Indonesian Basic Decisions on Environmental Management in Soegiarto, A., "The Indonesian Marine Environment: Its Problem and Management". 56  Ibid.  57  Malaysian Statutes, Environmental Quality Act (1974). 31  They are, among others: (1) Environmental Duality Regulations (Crude Palm Oil), 1987; (2) Environmental Duality Regulations (Raw Natural Rubber), 1988; (3) Environmental Quality Regulations (Sewage and Industrial Effluent), 1989. These regulations are directed mainly against pollution in the form of discharge and emission which come from land sources. Under these regulations, control is achieved through the establishment of a criteria to reduce pollutants, and is enforced by both legal and administrative methods. For example, according to these regulations, industries must comply with the recommended criteria of discharge as stipulated. 58 If unable to meet this demand, an industrial plant may apply for a license to discharge, with fees imposed at the rate of M$100 per metric ton of BOD discharge, and M$100 or M$500 per kilogram for toxic chemicals discharged (depending on the toxicity of the substance)  .  59  With the  enforcement of these regulations, it is estimated that, in 1991, a total of 820 licensed premises and more than 7,000 non-licensed premises are subject to these regulatory  58 Malaysia: Environmental Quality Regulations, 1977, Section Environmental Quality Regulations, Section 4; Environmental Quality Regulations, Section 7.  5;  59  Ibid. 32  measures. 60 Waste disposal from mining operations is regulated by state authorities under the authority of the Federal Department of Mines. ° The control of silts and sediments due to soil erosion and surface run-off is exercised under four separate laws. The  Land Conservation Act, 62 which has been adopted throughout peninsular Malaysia seems to be ineffective so far because it vests broad discretion in state authorities to declare whether or not a given tract of land should be cleared or planted with short-term crops. 63 The Local Government Act of 1981" also has provisions for the local authorities to prohibit certain discharges within their areas of jurisdiction. In addition, the Street, Drainage, and the Building Act of 1981 empowers the authorities to issue city by-laws for the control of silt washed away because of improper drainage and improper  60 Mahmud, A.A., "New Trends in Malaysia's Environment" in (1991) ASEAN Yearbook 85. 61  This is in accordance with the Mining Enactment, 1978.  62  Malaysian Statutes, Land Conservation Act (1980), No. 3, which was enacted under the authority of Malaysia Constitution, Article 76(3). Shane, J., "Legal Aspects of Environmental Management in Malaysia," (United Nations Taskforce on the Human Environment, 1987) at 44. 63  64  Malaysian Statutes, Local Government Act of 1981, S 69, 70. 33  maintenance of streets. 65 Proper drainage and frequent maintenance of logging tracks are some of the practice required in accordance with various forests enactments enforced by respective state authorities." Also, in accordance with the Waters Enactment of 1982, state authorities can alienate sufficient riparian reserves to prevent inroads of silt into receiving streams and rivers.  67  The Pesticides Act of 1980 regulates on the importing, manufacturing, selling, and storing of pesticides," but has no provision on the use of pesticides. In practice, the various state authorities can prohibit the use of certain pesticides which directly affect the use of any inland waters, subterranean water resources, and any water in an estuary or sea adjacent to the coast of their respective jurisdictions. For instance, the State of Perak has banned the use of sodium arsenite as a herbicide. 69 The disposal of radioactive waste is not totally prohibited under the regulations on sewage and industrial 65  Jaafar & Valencia, "Marine Pollution: National Responses and Transnational Issues" in Kent & Valencia, "Marine Policy in Southeast Asia" (Berkely, University of California Press, 1986) at 17. " Ibid. 67  Malaysia: Waters Enactment, 1982, Article 15.  68  Malaysian Statutes, Pesticides Act (1980), Article 16-19.  69  Jaafar & Valencia, "Marine Pollution: National Responses and Transnational Issues" in Kent & Valencia, "Marine Policy in Southeast Asia" (Berkeley, University of California Press, 1986) at 20. 34  effluent because its limits are yet to be specified by the minister in charge of the environment.  70  Under the  Radioactive Substances Act, however, the Minister of Health is the authority in charge of regulating most aspects of the manufacture, storage, sale, and use of radioactive substances and the safe disposal of radioactive wastes.  71  b. Singapore Singapore has the most effective measures in the region for regulating wastes that reach the marine environment. 72 Water pollution control in Singapore is achieved with the provisions on sewerage and sewage treatment works, and on the pretreatment of trade and industrial wastes to prescribed standards before discharge into sewers or water courses.  73  The sewage treatment program is illustrative. By 1987, 87 percent of Singapore's population of two million had been served by sewers. 74 The sewage is treated by the testing works under the Sewage Department before discharged into the sea. 75 Some portions of the effluent from the Ulu Pandan 70  Malaysian Statutes, Environmental Quality Act (1974).  71  Malaysia: Radioactive Substances Act, 1980, Article 11.  72 Jaafar & Valencia, "Marine Pollution: National Responses and Transnational Issues" in Kent & Valencia, "Marine Policy in Southeast Asia" (Berkeley, University of California Press, 1986) at 21. m  Ibid, at 22.  A  Science Council of Singapore, Environment Protection in Singapore: A Handbook (1990) at 16. Ibid, at 20. 35  Treatment Works is further tested by the Jurong Industrial Works to provide a supply of industrial processing water to certain factories in the Jurong industrial area.  76  The  department also encourages the siting of new factories in areas where public sewers are available to receive effluent from the factories because it is less costly to discharge into public sewers than directly into watercourses." Besides, in 1980, the Prevention of Pollution of the Sea Act was passed. This Act emphasizes the control of oil pollution by dumping. 78 The provisions regarding land-based marine pollution are as follows: Any discharge of oil or mixtures containing oil into local waters from any place on land is a criminal offense.  79  The offense is one of strict  liability in which there is no need to establish fault, although the Act itself provides for several defence to the offender. 80 Administered by the Ministry of Environment, the Local  Environmental Integration Regulations were passed in 1980, and the Environmental Public Health Regulations were passed in 1981. These two acts were combined into the Trade Effluent 76  Ibid, at 22.  77  Ibid, at 23.  78 Singapore: The Prevention of Pollution of the Sea Act, 1980, Article 10. 79  Ibid, Article 17.  80  Ibid, Article 18. 36  Regulations of 1986 which was made under the Water Pollution Control And Drainage Act of 1985. These regulations provide that all land-based sources of marine pollution, such as trade effluent, domestic sewage and sullage waste water, should be collected by an extensive network of sewers and be conveyed to sewage treatment works for treatment before discharged into the sea. 81 In Singapore, the amount of waste from land-based sources which finally reaches the sea is regulated by the Director of Water Pollution Control and Drainage of the Sewage Department. A maximum fine of S$6,000 may be imposed for the discharge of industrial effluent or sewage into a watercourse which does not meet the minimum standard of quality specified in the Trade Effluent Regulations of 1986.  82  Also, the  discharged effluent must not contain pesticides or radioactive materials .83 c. Thailand As pointed out earlier, environmental protection measures in Thailand are enacted under various acts. In general, there are over fifty acts and regulations applicable to the protection of the environment." These laws are intended to  8.  81  Singapore: Trade Effluent Regulations (1986), Articles 7,  82  Singapore: Trade Effluent Regulations, 1986, Article 11.  83  Ibid, Article 13.  84  See: National Environment Board of Thailand, "Environmental Status of Thailand" (Bangkok, 1989) p.14. 37  safeguard public health and to promote clean surroundings. However, there is no specific legislation on the control of marine pollution from land-based sources.  85  d. The Philippines As stated above, the National Pollution Control Commission (NPCC) is in charge of the waste management in the Philippines. NPCC has stipulated several regulations and set several programmes associated with industrial pollution control and waste disposal. 86 e. Indonesia The first step taken by the Indonesian government in relation to the control of wastes from land-based sources in 1986 with the issuance of regulations regarding use of water resources, which encompassed the disposal of industrial wastes in public streams." Other relevant laws 88 provide management measures, such as the disposal of harmful wastes, and elimination of harmful wastes from established industries. 89 The control of pollution in Indonesia is under the 85 86 See: National Pollution Control Commission, "Annual Reports, 1982-1990" and "Current Environmental Situation" (Manial, 1987).  87 ^WATERREGLEMENT (PERATURAN PERAIRAN UMUM, 1986) Dat STABLE 1986 No. 489; 1989 No. 98. The Nuisance Ordinance (1986) and its Amendment (1988), and the Safety Law No. 1 of 1990. See Karimoeddin, National Report of Indonesia in Dielenstein, D., "One World Only: Industrialization and Environment" at 19. 88  89  38  general umbrella of the Basic Decisions on Environmental  Management Act of 1981. 9° There have been no detailed regulations concerning the control of land-based marine pollution. 91 Although legislative standards have not been fully developed, Indonesia has adopted other measures to handle the disposal of human wastes. Except in Bandung, Jogjakarta, and Medan, which all have waste treatment plans and sewage systems in certain parts of the cities, septic tanks connected to seepage pits are used widely in most urban areas. 92 Additionally, the Department of Industry, in cooperation with the Department of Health, uses established technical guidelines to evaluate alternative waste disposal systems for industrial wastes. 93 Pesticides are comprehensively regulated in Indonesia. 94 90 Karimoeddin, E., "National Report of Indonesia" in Dielenstein, D., "One World: Industrialization and Environment" (Jakarta, 1988) at 12. 91 Indonesia: Basic Decisions on Environmental Management Act, 1981. Ibid, at 45. 92  Ibid, at 23.  93  Karimoeddin,E., "National Report of Indonesia" in Dielenstein, D., "One World: Industrialization and Environment" at 25. 94  Presidential Decree No. 7, 1983, concerning regulation of distribution, storage, and use of pesticides; Directive from the Minister of Agriculture No.429/Kpts/Um/9/1983 concerning conditions for pesticides packaging and labelling; Directive from the Minister of Agriculture No. 437/Kpts/Um/11/1985 concerning registration and approval^of pesticide^use;^Directive^from the^Minister of Agriculture No.125/Kpts/Um/4/1985^concerning registration and approval^of pesticide^use;^Directive^from the^Minister of 39  Indonesia has not developed enforcement regulations to make its existing environmental laws effective.  95  The lack of  any follow-up of its environmental laws, despite the fact that there have been some efforts to formulate rules and standards, is quite understandable. The government of Indonesia has not changed its long-time position that the environmental problems caused by poverty are not less acute and certainly are more widespread than the environmental problems caused by affluence. 96 For this reason, there is no central government agency that is wholly responsible for pollution control. Since the establishment of the Ministry of State for Development Supervision and Environment in 1978,  97  there have been some  efforts to integrate the environmental element into the country's social-economic development strategy.  98  Unfortunately, the power of this ministry is limited to the coordination of environment-related activities and the formulation of general environmental policy and guidelines.  Agriculture No.201/Kpts/MP/5/1985 concerning directory of offices regulating distribution, storage, and use of pesticides. 95  Jaafar & Valencia, "Marine Pollution: National and Transnational Issues" in Kent & Valencia, "Marine Policy in Southeast Asia" (Berkeley, University of California Press, 1986) at 28. 96  Karimoeddin, E., "National Report of Indonesia" in Dielenstein, D., "One World: Industrialization and Environment" at 11.  97  Renamed the Ministry of State for Population and Environment in 1984. Ibid, at 17. 98  Ibid. 40  Regulatory powers are still in the hands of sectoral agencies. 99  B. Problems on the Control of Land-Based Marine Pollution in Southeast Asian Countries As indicated above, the number of legislation on the control of land-based marine pollution in Southeast Asian countries is quite limited. Due to the special social-economic situations in these countries, the legislation has many shortcomings. Moreover, existence of legislation is one thing, and enforcement of that legislation is another. In this part of the Chapter, analysis is focused on the legislative factors as well as the social factors that have weakened the enforcement of the legislation on the control of land-based marine pollution. 1. The Separation of Legal Rights and Responsibilities Among Different Levels of Government Agencies A basic issue on the analysis of the enforcement of law relates to the division of environmental responsibilities among governmental agencies: Which agencies are currently exercising environmental responsibilities? Are the responsibilities adequately coordinated? Are there separation, overlapping, or jurisdictional conflicts between different  99 For example, the Department of Industry, the Department of Public Works, Energy and Electricity, the Department of Agriculture, the Department of Transport, the Department of Mining, and the Department of Public Health. Ibid, at 31. 41  agencies? Southeast Asian countries have adopted different approaches to the organization of their respective pollution control efforts. But in terms of pollution control agencies, their common problem is the lack of co-ordination between pollution control agencies.  100  This is illustrated by the  examples of Malaysia and Thailand. Being a federal state, Malaysia has a central or federal government and thirteen state governments.  101  Within each  state there is a third level of government which embraces agencies generally referred to as local authorities.  102  The  powers of the federal and the state agencies are set out in Part VI of the Federal Constitution. Of particular relevance to environmental issues is Article 74 which deals with the legislative competence of the Federal Parliament and that of the state legislatures.  103  Under this provision, there is a  Federal List which contains matters with respect to which state legislatures may make laws.  104  Enforcement of the  regulations relating to water and the coastal environment fall 100 Jittirat, M., "Environmental Conservation Through Laws" in Chulasia, B. and Siriratpiriya, 0., "Our Environment" (Bangkok, 1988) at 43. 101 Lee Tien Tien, "Law and the Protection of the Environment" (Kualar Lumpur, Faculty of Law, University of Malaya Project Paper, 1986) p.3. Ibid, p.4. 103 See: Constitution of Malaysia, Article 74. 104 Ibid. 42  within the powers of individual states while the enactment of these regulations are within the power of federal government. 105 Complications may arise if a federal regulation is not adopted by the state authority, or a regulation at a state authority level may be considered void if it contradicts a federal enactment which may not be entirely within the same subject. Moreover, some of the legislation lacks a clear definition of the enforcement agency, or a clear hierarchy of the enforcement agencies. For example, the Environmental  Ouality Act of 1974 created the agency of the Division of Environment (DOE) under the Ministry of Science, Technology and the Environment. pollution control,  107  106  The DOE is primarily responsible for  while every state government is also  responsible for pollution control. The Director General of the DOE is required to advise the minister on environmental policy matters.  108  But no clear authority for coordinating such  authority is established in the Act. In Thailand, pollution control responsibility is vested in the Ministry of Public Health by the Public Health Act. 109 On the other hand, the Public Health Act also vests broad 105  Ibid.  106 Malaysia: Environmental Quality Act, 1974, Article 15. 107  Ibid.  108  Ibid.  109  Thailand: Public Health Act, 1984, Article 16. 43  powers in local authorities to regulate pollution of all kinds within their jurisdictional boundaries.  110  There is no clear  stipulation in the Act on the division of specific responsibilities on pollution control between the Ministries and local authorities. Moreover, the Promotion and Conservation of National Environmental Quality Act of 1985 established a National Environment Board in the Office of the Prime Minister."' It is also charged with the responsibility of taking appropriate measures on the control of pollution on both national and local levels  ,112  The overlapping of powers  on pollution control among the Board, the Ministries and the local authorities leads to a lack of real authority for any of the three different levels of agencies.  2. Lack of Environmental Quality and Waste Disposal Standards in the Legislation From the legal point of view, codified standards for environmental quality and waste disposal are prerequisite to the control of pollution. However, owing to the lack of specific standards, most of the legislation in the Southeast Asian countries sets forth vague objectives which leave excessive discretion in the hands of the administrators. For  110 Ibid, Article 21. 111  Thailand: Promotion and Conservation of Environmental Duality Act (1985), Section 3. 112  Ibid. 44  example, it is insufficient for a state to set forth regulations merely to prohibit discharges that "cause a danger to the public",  "3  because such a provision does not tell a  discharger whether he is obeying or disobeying the law. Under such a provision, there is always a possibility that a court may disagree with what has been determined by the administrator as a violation. As a result, the law does not ensure any restriction on the polluter's behaviour. Moreover, it often happens in practice that, the victim of a pollution negotiates with the polluter to get compensation instead of bringing the case to court, in the latter case, he may not be able to get damages because there is not a specific standard on the subject of the pollution and the polluter may be acquitted. 114 In such cases, the polluter will not be punished by law and thus the legislation in this respect is ineffective. 3. Foreign Model of Legislation .  Before World War II, most of the countries in Southeast Asia were colonies. As a result, the legal systems of their former colonial masters have exerted great influence on their legal systems. For example, the legal system in the  113  For example, see: Malaysia, Environmental Ouality Act, 1974, Article 6. 114  Jaafar & Valencia, "Marine Pollution: National and Transnational Issues" in Kent & Valencia, "Marine Policy in Southeast Asia" (Berkeley, University of California Press, 1986) at 29. 45  Philippines is based on American law, while Indonesia has Dutch law, and Singapore and Malaysia have British law as the basis of their legal systems. Only Thailand has its own original legal system because it has long been an independent country. Under this pattern, the laws regarding pollution control in these countries are usually based on foreign models. For example, based on the British law model, the  Environmental Quality Act of Malaysia (1974) provides a "licensing system" for pollutant dischargers.  115  But in  practice, since Malaysia is a developing country whose economic development is based on small industries and agriculture-related industries such as palm-oil production, it would be difficult to establish an organized licence system as in Britain because it would be difficult for small industries to adjust themselves to superior management, and because agricultural-related industries are often situated in the countryside where organizational management is hard to operate. Moreover, public opinion toward environmental protection in Malaysia is not as concerned as in Britain, and consequently it is hard to enforce the "licence system" in a society where there is not much environmental concern. Moreover, there is a lack of government officers who are dedicated to the control of pollution in Malaysia, and it is hence difficult to achieve the effective management of a "licence system". 115  Malaysia: Environmental Ouality Act (1974), Article 15. 46  Another example of the inappropriate adoption of foreign legal models is the borrowing of stringent regulations from developed countries without adjusting to local situations. The legislation on pollution control in these countries tends to set strict yet general provisions which were borrowed from foreign laws without adjustment to local social-economic situations. But because of the lack of public consciousness and the lack of available technology and trained staff, the borrowed regulations can not be effectively enforced in practice and therefore become nothing more than words on paper. In this regard, the laws in relation to land-based marine pollution in these countries are of questionable suitability to the political, economic and cultural realities of these countries .  116  4. Lack of Officers Who Are Charged With the Responsibility for the Control of Land-Based Marine Pollution Being new in the field of environmental protection, the countries in Southeast Asia are seriously hampered by the lack of officers. The number of government officials in charge of the execution of the laws is extremely small. In Malaysia, for example, there were only nine officers in the Environmental Division of the Ministry of Science, Technology and Environment to be responsible for the enforcement of the 116  See general: Sand, "Environmental Legislation: Some Problems Associated with the Use of Foreign Advisors in Developing Countries" (Colorado: Water Resources Publications, 1988) at 14. 47  Environmental Quality Act in 1985. 117 It would be literally impossible for nine officers to combat pollution created by 12 million people, 2,500 industries, and 35,000 corporations.  118  Furthermore, these officials are working in the central government, and in many cases there is no one in charge of environmental laws in local regions.  119  In regard to pollution control administration, there is always an insufficient supply of instruments and devices required for measuring the degree of environmental pollution. 120 Therefore, even if the control standard of the pollution is specified at a certain point, because of the lack of measuring instrument, the supervising officers are unable to detect accurately the degree of pollution that is emitted from a factory or farm. Under these circumstances, there is virtually no effective enforcement of the pollution control legislation. 5. The Role of Attorneys To examine the problems of the enforcement of the law in developing countries, it is particularly important to study  117  Lee Tien Tien, "Law and the Protection of the Environment" (Kualar Lumpur, Faculty of Law, University of Malaya Project Paper, 1986), at 11. 118  Ibid, at 12.  "9  Ibid.  120  See: UNEP, "Report on the Protection and Development of the Marine Environment and Coastal Areas of the Southeast Asian Region" (Doc#UNEP/EAS.1, April, 1989) at 13. 48  the role of lawyers. In Western countries, lawyers are accustomed to a governmental decision-making process that is characterized by rigorous procedures, and there is an abundance of lawyers within government agencies which evidences the highly legalised nature of society. The countries in Southeast Asia, like other developing countries, have not developed what might be called an "environmental jurisprudence". Very few indigenous lawyers have been trained for maintaining environmental quality, and therefore relatively few efforts have been addressed by lawyers to the legislative and administrative innovations on pollution contro1.  121  Moreover, government workers do not normally  perceive the issues in front of them as legal issues.  122  Questions are seldom asked about a decision-maker's scope of environmental authority, about the meaning of a particular statutory phrase, or about innovative uses of existing regulatory powers.  123  As the role of legal profession in  environmental management is very limited, the enforcement of the environmental legislation is hampered. In Malaysia, for example, many Ministries have no inhouse attorneys at all or, at best a single legal advisor for  121  See: Lee, T.T., "Law and the Protection of the Environment" (Kuala Lumpur, Faculty of Law, University of Malaya Project Paper, 1986) at 21. 122  Ibid.  123 Ibid. 49  all departments.  124  More often than not, a government  department must call upon the Ministry of Justice to assign an attorney when it needs legal advice.  125  The Ministry of  Justice is understaffed, which means that there is a need for lawyers. 126 The fact that most decision-makers do not have access to the aggressive, creative legal interpretation that flows from an established lawyer-client relationship is a significant constraint on the implementation of environmental legislation in Malaysia. Government agencies in the Philippines and Thailand do commonly include in-house legal departments,  127  but their  impact on programme management varies in degree. Because the Philippines has a fair number of lawyers in its civil service and because the legal profession is well esteemed in this country, there is a predictable emphasis on the need for legal counsel in the decision-making process of the Philippine government, but there have not been enough trained legal professionals ready for that purpose.  128  In Thailand,  however, where the legal profession is less revered and where there are fewer attorneys in government, lawyers have played 124  Ibid, at 23.  125  Ibid.  126  Ibid.  127 See: Jittirat, M. "Government Policy and Environmental Conservation" (Bangkok, 1988). at 15; Tolentino, A., "Environmental Laws in the Philippines" (Manila, 1988) at 21. 128 Ibid, Tolentino, at 22. 50  only a minimal role in the field of environmental management.  129  6. Nature of Liability One of the major issues in examining the legal system of a society is the question of the nature of liability. This question is related to the existing litigation procedures. As far as the nature of liability is concerned, the existing legal systems in the countries in Southeast Asia apply the tortious liability.  13°  In other words, in these countries,  the plaintiff bears the burden of proof as to the fault of the polluter, and also has to prove the causal relation between the damage he suffers and the polluter's fault. In the case of coastal water pollution from land-based sources, the offending party may not be identifiable or identification of the polluter may be very difficult. For example, if the river has been polluted by industrial waste water and there are many factories situated nearby, it is a matter of speculation as to which factory the charge should be brought against. In such instances, it is hard for the victim to discharge the burden of proof as to the fault of the polluter and to prove the causal relationship between the damage the injured party suffers and the offending party's fault, and if the plaintiff fails to prove it , then he will not succeed in his action to 129  Ibid, Jittirat, at 17.  no Lee, T.T., "Law and the Protection of the Environment" (Kuala Lumpur, Faculty of Law, University of Malaya Project Paper, 1986) at 20. 51  recover his damages. Moreover, in some cases of land-based marine pollution, since the damages are done to the marine environment at large, there is the question of who would bring the charge. The required burden of proof on the plaintiff makes it more difficult for a party to bring a charge on landbased marine pollution. For example, in Thailand, the provision concerning the nature of liability in the case of pollution cases is Section 420 of the Civil Code which provides that any person causing damage wilfully or negligently is considered to have committed a wrongful act and is required to make compensation for such an act. 131 However, the injured person has to bear the burden of proof in convincing the court that he is damaged by the wrongdoer's commission or omission and has to establish whether the wrongdoer has acted wilfully or negligently.  132  If the injured person can not provide convincing proof, the wrongdoer may be exempted from the charge. In this regard, it is advised that, since pollution is harmful to the general benefit of the public, pollution offence are public welfare offence or regulatory offence, therefore, the principle of strict liability should apply. This may require some change in the legislation in this regard. It should also be pointed out that there is no provision 131 Thailand: Civil Code, Section 420. 132  Ibid. 52  in the laws of these countries clearly providing remedies for the injured party suffering from toxic chemicals. Though the injured parties are entitled to compensation by virtue of the provisions specified in the laws concerning "wrongful acts", they can get compensation only when the party deemed to be committing such a wrongful act can be clearly identified, and since it is hard to identify the offending party or parties in the case of land-based marine pollution, the injured can hardly be sufficiently compensated by virtue of laws.  7. Attitudes Towards Law To a great extent, the success of any attempt to improve a nation's environmental legislation depends on the people's attitudes towards law and law enforcement. It makes a big difference whether the society in question is traditionally a rule-conscious society. If it is a rule-conscious society, are the rules based on legal rules or are they based on custom and moral tradition? How many systems of law - customary, common, or statutory - are in operation at the same time? Are there significant points of divergence between traditional legal principles and the newly developed legal norms which will probably form part of the basis for the new approaches required for effective environmental regulation? What special considerations bear on the application of new national laws to minority ethnic groups within the country? What role do courts 53  play in the regulation of private conduct by the government?  Thailand, for example, has traditionally displayed a "laissez faire" attitude towards law and regulations.  133  Past  efforts to control industrial pollution have demonstrated that business in Thailand tends to be naturally resistant to the imposition of new regulatory controls. As a result, the regulations of environmentally significant activities in Thailand have traditionally relied more heavily on negotiation than on strict, inflexible enforcement.  134  Officials  currently charged with pollution control responsibilities are more comfortable with the discretion they presently enjoy than with a more strict and specific responsibility.  135  Therefore,  modern legislation in such a society can not be satisfactorily enforced, at least in the short term. The situations in the other countries in this region appear to be different. As a result of their long-term experience with Western legal systems, people in these countries are more likely to accept rigorous administrative  133 "Laissez Faire" in Thai means "negotiable" or "soft". Since legal regulations were traditionally from decrees, the nature of law was traditionally regarded as something negotiable. See: Jittirat, M., "Government Policy and Environmental Conservation" (Bangkok, 1988) at 27. 134  National Environment Board of Thailand, "Environmental Status of Thailand" (Bangkok, 1988). p.23. 135  Ibid. 54  requirements than people in Thailand,  136  and mandatory  penalties might therefore produce results in these countries, which they might not produce in Thailand. However, generally speaking, public attitudes toward law and law enforcement in the countries in this region are still far from satisfactory in order to ensure an effective legal system.  137  8. Other Legislative Problems To assess the current state of environmental legislations in Southeast Asia, it is necessary to consider the social and economic implications of these laws. It is commonly acknowledged that, for example, population, industrial organizations, food quality, and water resources lie at the root of the challenge of land-based marine pollution. 138 Therefore, the considerations for legislation in the fields of population, industrial relations, product quality and water resources should be included in the legislation and enforcement of the control of land-based marine pollution. Since the existing problems in the socialeconomic sectors of the societies of the countries in Southeast Asia, the effective legal control of land-based 136 See: UNEP, "The Public Aspects of Environmental Legislation in ASEAN Countries" (Bangkok: UNEP Regional Office for Asia and the Pacific, 1982) p.21.  137  Ibid.  138  See: Kiss, A.C., "The International Protection of the Environment" in MacDonald, R.J. and Johnston, D.M., "The Structure of International Law" (The Hague, Martinus Nijhoff, 1983) at 54.  55  marine pollution will depend considerably on the improvement of relevant social-economic sectors of the society. 9. Lack of Sufficient Environmental Impact Assessment Environmental impact assessment is important because the lack of environmental impact assessment often leads to the absence of necessary environmental planning procedures and mandatory environmental quality maintaining procedures. Without these procedures, the environment would still be in serious danger even if environmental laws are in force. In Southeast Asia, only the Philippines has adopted a comprehensive environmental impact assessment requirement.  139  The law of the Philippines requires that a detailed statement on the environmental effects of a proposed project accompany the proposal through the approval process.  140  Relevant  government agencies are given an opportunity to comment on the project, and the comments are carefully considered before arriving at the final decision.  141  However, the statue itself  does not require public participation in this process.  142  In Malaysia and Thailand, there has been no comprehensive legislation on environmental impact assessment, but the groundwork is already in place for the establishment of 139  UNEP, "The Use of Environmental Impact Assessment for Development project Planning in ASEAN Countries" (Bangkok: UNEP Regional Office for Asia and the Pacific, 1990) p.8. 140  The Philippines: Pollution Control Act, 1981, Article 11.  141  Ibid.  142  Ibid. 56  limited environmental impact assessment procedures. Malaysia's Town and Country Planning Act, 1985, sets forth that every new project should be accompanied by a justification of its environmental impact.  143  Similarly, the Environmental Ouality  Act, 1974, authorizes the Director General of Environmental Quality to specify the information to be concluded in the applications from the Division of Environment,  144  thus  furnishing the statutory authority for requiring environmental impact assessment in connection with new industrial facilities. In Thailand, the National Environment Board has the apparent legal authority to compel the production of information about the environmental consequences of any activity,  145  but does not furnish the Board with authority to  issue regulations. Thus no systematic requirements on environmental impact assessment are ordered on a compulsory basis.  From the above, it is obvious that as the environmental challenges confronting the Southeast Asian countries become more and more palpable, the need for an effective response is becoming increasingly important. In the case of control of marine pollution from land-based sources, initial efforts have 143  Malaysia: Town and Country Planning Act (1985), Article 17.  144  Malaysia: Environmental Quality Act (1974), Article 21.  145  Thailand National Environment Board, "Manual of Guidelines for the Preparation of Environmental Impact Assessment" (Bangkok, 1988). 57  been made on the legislation on this subject. On the other hand, a lot of work needs to be done in this respect. The region needs new legal instruments at the national and regional levels; it needs new institutional arrangements; it needs new appropriate regulations; it needs a cadre of well-trained environmental lawyers and officers; it needs an increase in public environmental consciousness. In short, the Southeast Asian countries require new and more effective legal machinery for the management of their coastal environment. The following chapters suggest a possible agenda for fulfilling these critical requirements.  58  CHAPTER III: A COMPARATIVE STUDY ON THE TOPIC OF LAND-BASED MARINE POLLUTION CONTROL BETWEEN DEVELOPED COUNTRIES AND DEVELOPING COUNTRIES  Developing countries can learn from the experience of developed countries in dealing with the environmental problems associated with the process of their social-economic development. They may be able to adopt the appropriate measures worked out by the developed countries in similar circumstances in their earlier development. Therefore, it is helpful for the countries in Southeast Asia to learn ideas, techniques, and operational systems from western countries in the development of their own environmental control system. A. Major Legal Issues in the Experience of Developed Countries on Land-Based Marine Pollution Control 1. The Social-Economic Dimensions of the Laws Concerning LandBased Marine Pollution Control a. Economic Dimensions As an activity, pollution abatement does not produce material goods. It makes no contribution to the Gross National Product. On the contrary, it involves the expenditure of money and other resources, which will eventually be paid by the society and thus may slow down economic growth in one way or another. 1 1 Kildow, J.T., "Political and Economic Dimensions of LandBased Marine Pollution" in Charney, J.I., "The New Nationalism and the Use of Common Space" (1987, 2d) at 70.  59  The "polluter pays principle" has been widely discussed by economists and has been accepted in many industrialized countries. 2 The OECD describes it as follows: "This principle means that the polluter should bear the expenses of carrying out measures decided by public authorities to ensure that the environment is in an acceptable state. In other words, the cost of these measures should be reflected in the cost of goods and services which cause pollution in production and/or consumption." 3 Pollution abatement costs will be passed on to the consumer, who shifts his money from other uses to pay the increased price. As a result, purchasing power for other commodities is reduced or consumers are induced to turn to cheaper products as substitutes. Manufacturers may have to consider a shrinking market, which means reduced production. When reduced production reaches the point at which no profit can be made, the manufacturer either moves the plant to a new location where pollution control requirements are less stringent, such as in developing nations with more relaxed environmental regulations, or shifts production to other products.  4  In  either case, there will be transition costs which will be  2  Ibid, at 73.  3^OECD  Environment Committee:^"Guiding Principles Concerning the International Economic Aspects of Environmental Policies" OECD Doc. C(88), 1988 at 128.  4  Ibid, at 76. 60  reflected in the price of the new product. If the price rise is significant, and the market is relatively elastic, production will go down, causing unemployment and other dislocations in the industry directly involved and in other dependent businesses. 5 Internationally, the price increase will reduce the international competitiveness of the product. If the import price is lower than the price on the domestic market, the producer may even lose his domestic market. If the industry concerned is threatened because of the stringency of national pollution abatement policies, it may move out of the country. The flow of capital to other countries may seriously reduce the productivity of the former home state and directly decrease the growth of GDP before other new industries are established. 6 Besides, marine pollution control requires a lot of research as well as adequate facility and personnel. If the costs for these pre-requisites are paid for by the government, taxes will be increased or public welfare will be cut. 7 Since pollution abatement can be expensive, the enforcement of the law on marine pollution control seems to be a tough task because it involves market value. 5  Ibid, at 80.  Tipple, V.K. and Kester, D.R., "Impact of Marine Pollution on Society" (3d)(New York, 1989) at 11. 6  7  Ibid, 13. 61  b. Social-Political Dimensions As relates to government measures on pollution control, the issue of the division of powers within government structures is always raised. Usually, in developed countries, each division of the government is responsible for the management and administration of a particular field and has power to decide policies and strategies. Each is inevitably drawn into interactions with other departments. 8 This relationship is particularly pervasive as relates to the environment because when a specific department or agency has been mandated to deal with environmental issues, with power to decide on strategies and measures, the implementation is frequently conducted through other departments or agencies with responsibilities in specialized fields. 9 Furthermore, the control of land-based marine pollution seems to be a local problem. But the question frequently arises as to which level of government is responsible for its control." This is especially true when the sources of the pollutants and the affected maritime area are under different legal and administrative jurisdictions. The contradictory interests of different social groups pose another problem for the social dimension of land-based  8  Ibid. at 25.  9  Ibid.  1° ^M.W., "A Perspective of Environmental Pollution" (London, 1988) at 55. 62  marine pollution control." For example, due to the lack of public consciousness, inland manufacturers expect to use the marine environment as a waste disposal site, but fishermen expect the marine environment to be clean and accessible. Manufacturers hope that production costs will be kept as low as possible, and consumers want the price of goods kept down; however, consumers also expect the commodities to be clean and safe. Environmentalists have a special interest in keeping the quality of the environment high, but the general public is more interested in improving material life. The party in power wants to maintain its power and position, but it is obliged to seek an acceptable balance between various contradictory factors. The opposition parties criticize every mistake of the government, including those related to environmental protection. All these groups emphasize their own interests and their own side of the picture.  12  Policy makers must reconcile these competing interests and make decisions that will benefit society as a whole. The problem is not easy to solve. For example, in maritime provinces, the protection of marine resources probably becomes the major factor in stimulating pollution abatement, but in inland provinces the interests of industry are more  Lowe j. and Lewis D., "The Economics of Environmental Management" (Oxford, 1980) at 8. 12 63  important. 13 These conflicts of interest cause serious problems in environmental policy-making, especially in federal states where the constituent units have certain independent powers on environmental policy making. 2. The Nature of Private Liability In their efforts to cope with marine pollution, different countries have different legislation as relates to the nature of liability.  14  As more and more states are taking part in  international agreements and conventions on environmental protection, a uniformed standard is gradually being developed and accepted by international communities: liability is deemed to be engaged not by the nature of the act but by the harmful consequences it entails.  15  Strict liability is imposed at the international level by two types of treaties, namely, those limited to giving internal effect to treaty provisions and those that impose responsibilities on states.  16  The basic principle of strict  13 Tipple, v.K. and Kester, D.R., "Impact of Marine Pollution on society" (New York, 1988) at 13. 14 See: Kiss, A.C., "The International Protection of the Environment" in MacDonald, R. and Johnston, D.M., "The Structure and Process of International Law" (The Hague: Martinus Nijihoff, 1983) p.1080; Boczek, B.A., "International Protection of the Baltic Sea Environment Against Pollution" 72 American Journal of International Law 804  15  ^  16  "1933 International Convention for the Unification of Certain Rules Relating to Damage Caused by Aircraft to third Parties on the Surface." U.S. Department of State: "Foreign Relations of U.S.", at 968-977.  Johnston, D.M., "Environmental Law of the Sea" (1981) at 81. 64  liability is that the polluter is prima facie liable unless he can prove, by a preponderance of evidence, that he is not negligent in causing the pollution.  17  So far there are no treaties imposing strict liability on states for environmental degradation. However, there are several judicial decisions approving strict liability in this field. Classical examples, often cited by publicists to prove the existence of strict liability for environmental degradation, are the Trail Smelter Arbitration and the Lac  Lanoux Arbitration.  18  The rulings in these two cases provide  support for the idea that a state is responsible for most, if not all, activities within its territory and may be held liable when damage caused to other states reaches the pollution threshold, regardless of whether due diligence has been exercised.  19  In other words, these two cases adopt the  strict liability rule. However, it is premature to conclude that states accept strict or absolute liability in pollution cases. For example, at the 1972 Stockholm Conference on the Human Environment, though the countries agreed to accept responsibility to prevent extraterritorial damage caused by activities in their territories, 20 they did not reach  17 Ibid. 18^  "The Trail Smelter Arbitration", UNRIAA, Vol.III, at 1965.  19^  Ibid, at 1980.  20 Principle 21. 65  agreement on the content of the responsibility in the light of strict liability. While discussing Principle 22, some states expressed recognition for liability only for "negligence of a state, imputable either to inaction or the failure to fulfil specific commitments." 21 Thus we can conclude that while there is a tendency to accept strict liability for environmental degradation in principle, the actual establishment of this principle still depends on particular international agreements. The limited number of decisions of international tribunals in this field do not provide sufficient evidence for the existence of a customary rule of international law on strict or absolute liability for all environmental degradation. 3. The Issue of State Responsibility Land-based marine pollution is primarily a matter of domestic concern. However, because of the special nature of marine pollution, the introduction of pollution substances in the marine environment of one state may cause degradation of the marine environment of other states. A matter of domestic concern thus becomes an international concern. In these circumstances, one question of state responsibility arises: under what circumstances and to what extent should the state of origin be held responsible for the conduct that causes or is likely to cause environmental degradation? According to general international law, ^state 21  ^  Ibid. 66  responsibility exists when persons or authorities that can be identified with the state: (i) have caused pollution by carelessness; (ii) have not exercised sufficient due diligence to prevent or combat pollution by persons within its territories; or (iii) have neglected to take proper measures or to offer injured persons reasonable possibilities of restitution and compensation for damage sustained.  22  The United Nations International Law Commission has generalized the condition of state responsibility for conduct attributable to states under international law which constitutes a breach of an international obligation of the state. 23 The objective condition for the existence of state responsibility is that there must be a breach of an international obligation, either under customary rules or under treaty obligations.  24  If the act causing pollution is  not prohibited by international law, there will be no state responsibility involved in. In today's world, it is generally accepted that a state has a duty to protect and preserve the marine environment. Does this mean that a state will be held 22  23  24  ^  S. Van Hoogstraten and J.G. Lammers: "International and National Legal Aspects of Trans-frontier Pollution" (The Netherland Association for International Law, 1988). at 17.  ^  Article A and S of the Draft Articles on State Responsibility. Y.B. of ILC, Vol.II, at 133-184.  Ibid. 67  responsible for any trans-frontier pollution that sourced from its territory? Since current international law on this issue is so general that it is not possible to specifically prohibit all acts attributable to pollution. For example, introduction of some substances have not been prohibited by international law, so pollution caused by the introduction of these substances into marine environment will not render the state from which the introduction happened liable under current international law. Another requirement for the enforcement of responsibility on a state is that the persons or authorities that caused or did the wrongful act must be identified. In the case of landbased marine pollution, because of the complexities of the sources of the pollutants, it is often hard to identify the specific original offending party or the identification may be uncertain. For example, if a river in country A was polluted by waste water discharged from many factories situated near the river in this country, and the river flew into the coast water of country B, while another river in country B which carried large amounts of wastes from industries in country B also flew into the same marine environment. In this case, it is difficult to identify who is solely or who are the offending parties. 4. The Issue of Control Measures: Preventive Measures and Compensation Measures There are two legal approaches on the control of marine 68  pollution: the regulatory approach and the compensation approach. As a result, control measures on land-based marine pollution include two different kinds of measures: preventive measures and compensation measures.  25  The primary purpose of preventive measures is to impose reasonable precautions to reduce pollution incidents and to minimize the damages before they occur.  26  Preventive measures  can be developed on a scientific judgement as to precisely how much pollution each known source will be permitted to contribute. The preventive rules and standards can concern not only the prohibition of potentially harmful activities but also the promotion of any activities that may help the identification of potentially harmful activities or the improvement of the quality of the marine environment.  27  The preventive approach has its disadvantages. First of all, the preventive measures rely heavily on scientific information and deeply involve various governmental agencies concerned. 28 Therefore, the adoption of preventive rules and standards may be more difficult than the adoption of compensation ones. Second, the enforcement of precautionary measures is very difficult, especially when the omission of 25  Soni, "Control of Marine Pollution in International Law" (1985) at 60. 26  Ibid.  27  Ibid.  28 Schmidtke, N.W., "Technical Aspects of the Control of Marine Pollution from Land-Based Sources" (1985) at 38. 69  preventive measures does not necessarily cause direct degradation of the marine environment.  29  The primary purpose of compensation measures is to provide compensatory remedies and other forms of relief to the victims of pollution incidents. 30 The advantage of this approach is that it does not depend on an understanding of complex scientific, economic and social problems. 31 Once damage is an established fact, the compensation measures can be fulfilled. However, This approach is consequenceoriented. 32 It relies generally on private litigation to identify the harm to which they are exposed, to assess the degree of harm, and to seek specific redress against a named defendant. 33 In the case of land-based marine pollution, the basic prerequisite of a cause-effect relationship can hardly be established because the sources of pollution are often nonpoint in nature and the sources are often too widely scattered. 34 In these circumstances, it is difficult to 29  Ibid, at 42.  30^Martine Remond-Gouilloud: "Prevention and Control of Marine Pollution" in D.M. Johnston, ed.: "The Environmental Law of the Sea" (Gland, Switzerland, IUCN, 1981), at 199. 31 Ibid. 32  Ibid.  33  Ibid.  34^  Non-point source of pollution means that the place where the pollution generating activity takes place can hardly be specified. For example, agricultural run-off is a nonpoint source of marine pollution. 70  attribute injuries to a particular action of a particular polluter. In addition, even if the polluter can be identified and the particular injured person is compensated, the damage to the marine ecosystem is often overlooked since the identification of the specific potential victims is almost impossible. As a matter of fact, even if there is a way to compensate all the injured or the indirectly injured, the liability approach will often appear inadequate because the quality of the environment concerned cannot be completely restored once the environmental ecosystem is damaged. Most countries which have a history in land-based marine pollution control have had adequate compensation regulations in their legislations. 35 Due to the growing awareness of marine pollution control and the development of science and technology, a lot of countries have already adopted preventive measures in their efforts against land-based marine pollution contro1. 36 These two legal approaches are not mutually exclusive. In practice, both are used to deal with the same type of marine pollution and can thus complement each  35 See: Johnston, D.M. Approaches to the Protection Environment" in Johnston, D.M., (Gland, Swizerland, IUCN, 1981)  and Enomoto, L.M.G., "Regional and Conservation of the Marine "The Environmental Law of the Sea" p.339.  36  DOSP (Dalhousie Ocean Studies Programme), "Conservation and Management of the Marine Environment: Responsibility and Required Initiatives in Accordance with the 1982 UN Convention on the Law of the Sea " (Halifax: DOSP, 1985). 71  other  . 37  5. The Montreal Guidelines The comprehensive approach to the control of land-based marine pollution in international law was enriched in the United Nations Environmental Program's Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-Based Sources (1985). The Guidelines are to assist governments in the process of developing appropriate bilateral, regional and multilateral agreements and national legislation for the protection of the marine environment against pollution from land-based sources. 38 The Guidelines were developed by a UNEP Working Group of Experts and represent the first attempt by the international community to address this subject at the global level. The Guidelines cover areas such as cooperation to establish rules, criteria, standards and recommended procedures to prevent, reduce and control pollution; 39 scientific and technical cooperation; 4° establishment of programmes for monitoring and data management ; 41 establishment of specially protected areas; 42  37 Soni, "Control of Marine Pollution in International Law" (1985) at 53. 38  UNEP, Montreal Guidelines for the Protection of the Marine Environment Against Pollution From Land-Based Sources (1985), Guidelines 1-9. 39  Ibid, Guideline 5.  4° Ibid, Guideline 8. 41  Ibid, Guideline 11. 72  and development of control and prevention strategies.  43  Under the Montreal Guidelines, control strategies are based on marine environment quality standards, emission standards, and environmental planning, respectively 44 . There are three widely accepted activities within the frameworks and strategies of Montreal Guidelines: environmental impact assessment, 45 the development of water quality criteria, guidelines and standards" and the design of environmental monitoring programme. 47  Environmental Impact Assessment The application of control strategies involves the appropriate use of environmental impact assessment at both the strategic or regional level and the project or local level. Environmental impact assessment encompasses baseline data collection, impact prediction, determination of the significance of impacts and evaluation. The Guidelines indicate that studies on the effect of pollution are clearly critical to the prediction of impacts."  Development of Environmental Duality Guidelines and Standards 42  Ibid, Guideline 7.  43  Ibid, Guideline 13.  44  Ibid, Guideline 13.  45  Ibid, Guideline 12.  46  Ibid, Guideline 13.  47  Ibid, Guideline 11.  48  Gu ideline 12. 73  Control strategies and instruments can only be effectively implemented if scientific criteria regarding the effects of contaminants on marine life, combined with water quality guidelines, reflecting the preferred uses of the receiving environment, are available. Considerable work has occurred internationally on marine water quality guidelines. The environmental protection framework under the Guidelines contains control strategies requiring marine water quality standards or guidelines, eg. the strategies based on use. Such standards and strategies are key instruments in the assessment and control of land-based pollutants, and depend on marine eco-system.  Environmental Monitoring Monitoring is a key activity of the frameworks and strategies under the Guidelines. Monitoring includes surveys (single sets of observations or measurements which will assess the situation at one particular time) and surveillance (repeated surveys which will indicate changes with time) - in its restricted legal sense, monitoring indicates repeated observations or measurements that check whether that which is studied conforms to an already stated standard. In summary, management of land-based sources of pollutants must be placed in a comprehensive framework in order to adequately protect the uses and qualities of marine waters. A number of national and international agencies such 74  as UNEP have already produced such frameworks to identify the key activities, to improve decision making and to bring relevant jurisdictions and parties together. An important component of all of these frameworks is a reliable understanding of the effects of the substances and wastes discharged to coastal and marine waters. That is to say, environmental impact assessment and environmental quality guidelines and standards have a crucial part to play in the choice and implementation of effective management strategies and control options.  B. What is the Appropriate Type of Legal Structure for the Control of Land-Based Marine Pollution in the Developing Countries of Southeast Asia Since the control of land-based marine pollution is a complex issue which relates to social-economic compositions of a society, it is not possible transplant Western models of environmental management without appropriate adaptation to local situations. Developing countries will need to innovate and improvise with judicious borrowing from the developed countries to evolve an appropriate legal regime for the control of land-based marine pollution. 1. The Role of Government Agencies The developing countries in Southeast Asia have a different social-economic foundation from those of the developed countries. They are in the initial stage of economic 75  development with the aid of foreign investment; their technical and financial capabilities are limited; their social awareness towards jurisprudence is inadequate. Therefore, these countries should develop their own legal approaches toward marine pollution control. First of all, these countries are in the initial stage of economic development. The majority parts of their industries are private-owned small manufacturing enterprises.  49  As in  the case of developed countries, these private manufacturers do not want to pay the high cost of pollution abatement." Besides, the urbanization of coastal areas makes the pollution problem more serious. In developed countries, this would have been more easily tackled by the self-adjustment of free market economy and the balance of power among different political groups." In the developing countries in this region, because the economic development has not reached a high level, there is no market or political force to restrict the tendency against pollution abatement. 52 In this regard, the government should function as a proper organizational infrastructure and a climate conducive to the development of suitable programmes 49 Hill, R.D. and Bray, J.M., "Geography and the Environment in Southeast Asia" (Hong Kong, University of Hong Kong Press, 1986) at 49.  5o 51 Oda, Shigeru, "Marine Pollution: Problems and Remedies" (1985) at 78.  52  Hassan, R., "Southeast Asia: Society in Transition" (Kuala Lumpur: Oxford University Press, 1986) at 93. 76  in individual workplace either individually or collectively. Thus, apart from pertinent legislation on pollution control, governmental organizations play an important role in the legal framework on pollution control of these countries. The role of government in various areas of activities should be clearly thought out and developed to deal with the existing problems at each stage of industrialization.  53  The  aim must be to gradually move from a simple level to a more highly technological and sophisticated level in keeping with the general development of the country. 54 Underemphasise of the protection against and prevention of land-based marine pollution may result in a heavier social burden and reduction of skilled and trained manpower, while overemphasis may impede development and foreign investment. A fine balance should be set between the benefits arising from the control of pollution and the social price the society is prepared to pay. 55 2. How Stringently Should Environmental Measures be Enforced? This question is clearly tied up with the level of economic development, and with considerations regarding the cost of pollution control and conservation, and the availability of resources for carrying out environmental work. The countries in Southeast Asia are still in the early " Jaaf & Valencia, "Marine Pollution: National Responses and Transnational Issues" in kent & Valencia, "Marine Policy in Southeast Asia" (1986) at 113. 54  Ibid.  " Ibid. 77  stage of economic development. Their financial and technical capabilities to deal with pollution control are quite limited. Too stringent control measures may not be feasible because of limited financial and technical capabilities. Therefore, it is necessary for them to adopt control measures which are feasible to take in practice. 3.  The Necessity of Basic Research and Environmental Impact  Assessment In the countries of Southeast Asia, the pressure of a rapidly expanding population, industrialization, and increasing world demand for natural resources has great impact on the environment. Thus environmental issues, especially problems on land-based marine pollution, change quickly in accordance with social-economic change.  56  It is necessary to  conduct relevant basic research and environmental impact assessment by law. In Southeast Asia, only the Philippines has adopted a comprehensive environmental impact assessment requirement.  57  The Philippine law requires that a detailed statement on the environmental effects of a proposed control measure accompany the proposal through the approved process.  58  Relevant  56  ESCAP, "Transnational Corporation and Environmental Management" in "Selected Asian and Pacific Developing Countries" (Bangkok, 1988) at 79. 57 The Philippines, Presidential Decree No. 1151 (1977), Section 4. 58  Ibid. 78  government agencies are given an opportunity to comment on the measure, and the comments are carefully considered before arriving at the final decision.  59  Although comprehensive legislation of this kind enacted in the Philippines has not been adopted by the other countries of Southeast Asia, the groundwork is already in place for the establishment of limited environmental impact assessment procedures in these countries. Malaysia's Town and Country Planning Act  60  sets forth environmental protection as an  essential element in the land use planning process. The statue could be used as the basis for ensuring the incorporation of an environmental analysis in the operation of every new project. Similarly, the Environmental Quality Act authorizes the Director General of Environmental Quality to specify the information to be included in applications for licences from the Division of Environment,  m  thus furnishing the statutory  authority for requiring environmental impact assessments in connection with new industrial facilities. In Thailand, the National Environment Board has the apparent legal authority to compel the production of information about the environmental consequences of any activity, whether public or private, 59  Ibid.  60^  Malaysia, Town and County Planning Act, Article 18.  61^Malaysia,  127).  62  62  ^  Environmental Quality Act, 1974 (L.M., Act  Thailand, Enhancement and Conservation of National Environmental Quality Act, B.E. 2518 (1975), Sec.6. 79  but the Act does not furnish the Board with authority to issue regulations. Thus no systematic environmental impact assessment procedures have resulted from the legislation. The only environmental impact assessment is ordered on an ad hoc basis, and is undertaken by the board's staff as a special project.  80  CHAPTER IV: PROPOSALS FOR FUTURE DEVELOPMENT ON LAND-BASED MARINE POLLUTION CONTROL IN SOUTHEAST ASIA FROM LEGAL PERSPECTIVE  In terms of legal efforts on land-based marine pollution control in the developing countries in Southeast Asia, much important work still needs to be done. This chapter sets forth a broad outline for the sorts of activities which the governments of the countries in this region may undertake in order to create a more adequate legal framework for the management of land-based marine pollution. A. Institutional Framework One of the important approaches for the control of landbased marine pollution in is to establish an institutional locus for the various work that needs to be done.  1  Experience  in the efforts by the Baltic regional sea and the Mediterrean regional sea shows that the establishment of a permanent or quasi-permanent institutional body, which is charged with the responsibility of evaluating the current state of laws governing land-based marine pollution control, is good for the implementation of control measures. 2 The forum may help to stimulate and coordinate a government-wide programme for the continuing review and amendment of land-based marine pollution 1 Okidi, C.O., "Regional Control of Ocean Pollution: Legal and Institutional Problems and Prospects" (The Netherlands, 1988) at 232. 2  Ibid, at 235-242. 81  control legislation in response to rapidly changing needs. As stated earlier, in Thailand, the National Environment Board has established an advisory committee on environmental law which reviews existing and proposed legislation of environmental significance and proposes amendments, new statutes, and regulations as needed. 3 In Malaysia, the Chief Parliamentary Draftsman within the Ministry of Justice has established a simple procedure whereby other government agencies may request legislative changes.  4  The Philippines  established the Inter-Agency Committee on Environmental Protection together with a legal subcommittee in 1981,  5  and,  as an outgrowth of that body, the National Environmental Protection Council was established in 1985, includes legal officers.  7  6  with a staff that  These institutions are responsible  for general environmental issues including the control of land-based marine pollution. However, due to the lack of trained officers, the effectiveness of these institutions on environmental law review and amendment has been limited. 8  3 Thailand: National Environment Board, "Policies and Measures in National Environmental Development" (Bangkok, 1982). 4 Malaysia: Ministry of Justice, "Master Plan for Environment" (Kualua Lumpur, 1987). 5  The Philippines, Letter of Instruction, No. 422 (1981).  6  The Philippines, Presidential Decree No. 1121 (1985).  7  Ibid.  8 Jittirat, M., "Environmental Conservation' Through Laws" (Bangkok, 1988) at 71.  82  Besides, since these institutions are responsible for general environmental law evaluation and amendment, the issue of landbased marine pollution is often ignored while attentions tend to focus on product-oriented environmental issues such as land planning. 9 Therefore, a comprehensive government forum with adequate staff who are charged with the special responsibility of evaluating and amending the existing laws and regulations on land-based marine pollution control should be established. B. National Policies The responsibility of a government on marine environment management usually includes: policy making; comprehensive planning and management; establishment of a legal and regulatory framework; implementation of adopted plans, programmes and projects; coordination, control and evaluation of marine activities; research, advisory and technical services; financing of projects; and training of personnel, etc. 1° The highest level is policy and decision making. 11 An effective national marine policy has to set out priorities and be translated through appropriate administrative mechanisms into specific projects, preferably complementary, but at least  9 Fonseca, R., "Governmental Planning and the Environment" in Hassan, R., "Southeast Asia: Society in Transition" (Kuala Lumpur: Oxford University Press, 1986) at 161.  10 Soni, R., "Control of Marine Pollution in International Law" (1985) at 126. " Ibid. 83  not in conflict with each other.  12  The process through which  this is accomplished must take into account of all of the activities on development. Sometimes the government must make a policy choice on conducting the activities on the control of land-based marine pollution and on conducting other developmental activities and projects.  13  A national policy for the development and management of the coastal area should have certain characteristics. On the one hand, the development of a national policy should involve wide-ranging consultations with citizen's groups, business and commercial interests, universities and research groups, and other interested parties.  14  On the other hand, the policy of  the government should be stated in a clear, simple and intelligible form, and should be logically consistent and economically sound.  15  However, the current policies on coastal environment control in the countries in Southeast Asia are quite genera1.  16  For example, the national policy on coastal  environment management in Thailand was stated by the National Environment Board in 1982: "development in the coastal area  12 13 Ibid. 14  Jittirat, M., "Government Policy and Environmental Conversation" (Bangkok, 1988) at 6. 15  Ibid. at 8.  16  Ibid, at 11. 84  should seek to maximize environmental quality, while ensuring the greatest growth rate of production and other economic activities." 17 A formulation of this nature is neither consistent nor economically sound. A sound environmental policy would presumably represent maximum environmental quality, and it would not exclude most human activities; maximum industrial production in the coastal area would maximize waste loadings into the coastal waters, thus being inconsistent with maximum environmental quality. In fact, it is only possible to increase environmental quality by using resources diverted from other purposes. In the economist's language, there is a trade-off between economic growth and environmental quality, and a workable policy must recognize this relationship.  18  Therefore, it is not possible to  conceptualize a basic model for the adoption of a marine policy, because too many forces, requirements and institutional arrangements are involved. As suggested above, a precondition for the determination of a national marine policy is that the coastal state should identify its marine environmental problems.19 This  " See: Thailand National Environment Board, "Policies and Measures in National Environmental Development" (Bangkok, 1982). p.2. 18 Kildow, J.T., "Political and Ecomonic Dimensions of LandBased Marine Pollution" in Charney, J.I. (ed.), "The New Nationalism and the Use of Common Space" (1987, 2d) at 43. 19  Okidi, C.O., "Regional Control of Ocean Pollution: Legal and Institutional Problems and Prospects" (1988) at 45. 85  determination depends on the availability of basic information regarding the ocean space under the national jurisdiction of the coastal state.  20  In the absence of such information, it  is essential that the state proceeds to a preliminary assessment and only after such an assessment will the state be in a position to consider establishing a specific marine policy. 21 It may happen that, having conducted such a preliminary assessment, the state decides not to make a special effort to define a marine policy because of the limited benefits such a policy would bring to the national economy. Even in this case, however, it is imperative that the state base its decision on sufficient information. The coastal state will have to assess its marine interests on the basis of an understanding of all present and potential uses of its ocean space.  22  It will then have to  evaluate the direction of its policy, and it will also have to take into account its scientific, technological, financial and human capabilities. 23 Then it will have to proceed to an overall economic evaluation, but this evaluation will not be the sole criterion on which the policy will be based.  20  Ibid.  21  Ibid.  22  Ibid, at 62.  23  Sand, P.H., "Marine Environment Law" (1988) at 34.  24  It  24 Soni, R., "Control of Marine Pollution in International Law" (1985) at 71.  86  will be necessary to make comparisons among different sectors in order to establish priorities. C. Legislative Recommendations Marine environment management requires that each government should undertake a systematic evaluation of its environmental law framework. 25 In addition to the more obvious environmental law categories, a variety of other legislation which, properly used, might be of environmental importance.  26  For example, it  will be useful to examine the statutory means by which the government might create non-penal economic incentives to meet newly established environmental objectives.  27  Is it possible,  for example, to waive duty requirements in connection with the importation of pollution control facilities? Can the depreciation on capital investment in waste-water treatment equipment be accelerated for tax purposes in order to make such investment more attractive? Is it possible to encourage domestic production of pollution control equipment through the investment promotion process? 28 In the abstract, it is difficult to anticipate the range  25  Ibid, 101.  26  Sand, P.h., "Marine Environment Law" (1988) at 91.  27^  See: Delogu, O.E. and Soell, H., "Fiscal Measures for Environmental Protection" in Environmental Policy and Law" (Paper No.11, International Union for Conservation of Nature and Natural Resources, 1986).  28  ^at 101. 87  of opportunities for marine environmental protection that exist in legislation. 29 However, the importance of a wellrounded approach to environmental legislation should be clearly understood. The implication is that legislative efforts cannot be wholly confined to environmental agencies, but must include all the offices of government whose activities bear, or might be brought to bear, on the implementation of environmental policy. The critique will furnish a basis for the formulation of specific legislative recommendations.  30  As relates to the  issue of land-based marine pollution, it may be useful to mention seven broad criteria by which the utility of current legislation may be gauged. 1. Legislation on Land-Based Marine Pollution Control Should Establish Clearly Discernible Obligations As mentioned earlier, most of the existing legislation on the control of land-based marine pollution in the developing countries in Southeast Asia have vague objectives which leave excessive discretion to administrators.  31  It is not  sufficient to say that discharges that would "cause a danger to the public" are prohibited 32 because a provision like this 29  Ibid, at 81.  30  Ibid, at 92.  31 See: Chulasia, B. and Siriratpiriya, 0. (ed.), "Our Environment" (Bangkok, 1988) at 44. 32 For example, see: The Philippines Pollution Control Act, 1981, Article 7.  88  does not tell a discharger whether he is obeying or disobeying the law. Under such a provision, since there is no specific standard, the administering agency has a big discretion on what constitutes a violation. As a result, the law does not effectively sanction illegally discharge. Thus, the legislation should set out specific standards so that control can be effective and people can know clearly whether or not they are in compliance with the law. 2. Legislation on Land-Based Marine Pollution Control Should Permit Administering Agencies to Tailor Their Enforcement to Differing Circumstances This proposition may appear to contradict the first proposal of establishing clearly discernible obligations, but it does not. The obligations must indeed be clear, and every individual must know precisely what his obligations are. But in a developing country, there may be good reasons for creating different obligations for different people, or within different geographical areas. 33 For example, waste-water standards applicable to large, capital-intensive industrial complexes may or may not be appropriate in the context of a small family-owned business, even if the manufactured product is the same. 34 It is an essential aspect of pollution control  33 Holdgate, M.W., "A Perspective of Environmental Pollution" (London, 1988) at 151. 34  ^  See: J.B. Aden: "The Relevance of Environmental Protection in Indonesia", 4 Ecology Law Quarterly 987, 1003. 89  that different standards might be formulated in different situations, depending on the nature of the specific use and the general capability of the users.  35  3. Legislation on Land-Based Marine Pollution Control Should Facilitate Rapid Adjustments to Changing Technology In today's world, with the rapid development of science and technology, environmentally significant innovations such as new pollution treatment processes come out frequently. Environmental agencies must be given sufficient latitude to ensure that the benefits of these research are realized quickly. 36 Legislation on land-based marine pollution control should therefore accommodate an appropriately dynamic regulatory regime, consistent with the need for clearly discernible obligations. 4. Legislation on Land-Based Marine Pollution Control Should be Rooted in Reality This proposition has two different meanings. First, it means that new laws should be based on actual, not assumed, needs. No environmental law reform project can succeed unless it is carried on in close cooperation with the officials who will be responsible for implementing the resulting provisions. Where possible, proposed statutory innovations should reflect supra note 36  33,  at  78.  ^  See: J.F. Sax: "Legislative Techniques: A General Survey of the Problem" in "Science for Better Environment" (Proceedings of International Congress on the Human Environment, Kyoto, 1975), at 791; Also J.B. Aden: "Environmental Protection in Indonesia", at 1005-1006. 90  needs and priorities perceived by the operating officials themselves. The second implication of the "rooted in reality" principle is that legislation on land-based marine pollution control should establish attainable, not ideal, objectives.  37  It is useless to create a regulatory procedure which requires technical and manpower resources which are neither available now nor likely to become available in the near future.  38  This  is very important for developing countries because their capability of innovating new technique or implementing new technical devices are limited. For the same reason, standards promulgated administratively pursuant to a general enabling legislation should be standards which can be met. If compliance is not economically or technically feasible, enforcement officers will ignore the requirements, and in short period the entire regulatory scheme will collapse. 5. States Should Review Their Environmental Laws and Update Their Rules and Regulations to Implement the Relevant Provisions of Regional and International Agreements This action would provide necessary stimulus to harmonize the laws of the states in Southeast Asia. It would also ground the common position of the states when a marine environmental dispute arises, and could lead to the improved pollution control from land-based sources. 37^ 38  See: P.H. Sand: "Marine Environment Law" (1988) at 107.  Ibid, at 110. 91  On the other hand, given that the states may have other priorities relating to their economic development, there is a real question of how such laws and regulations could be enforced in each country. Once the regionally or internationally accepted laws are adopted as part of the domestic legislation, pressure may come from environmental groups and international organizations for increased effective enforcement. As a result, uniform standards would limit the flexibility in the approaches which are based on such domestic considerations as development priorities, stages of economic development, and carrying capacities of different sections of the environment. 39 However, domestic enforcement of international rules and regulations is an important part of international environmental law, 4° therefore, states should update their domestic environmental legislation to reflect the newest development in regional or international legislation. 6. The States Could Harmonize Their Practice and Reconcile Their Pollution Control Regulations for Major Common Pollutants The harmonization of the practice and the regulations in pollution control will ultimately benefit the states concerned. The countries in this region would be required to re-examine the rationale for their laws and to develop new  39 Soni, "Control of Marine Pollution in International Law" (1985) at 111.  40 Ibid, at 19.  92  laws or to modernize those which are outdated. Harmonization could avoid conflict because one country's resources may be shared by other states. Harmonization could eliminate the question of which country must control its pollution first, and could strengthen the legal position of each state. On the other hand, the countries in this region are at different stages of development and, therefore, presumably have different environmental protection priorities and capabilities for enforcement. Uniform laws and standards would preclude a differential approach within the country. The uniform standard could also create disharmony between the countries. Singapore would probably support the idea on the harmonization of pollution control practice and regulations. Singapore has the strictest effluent standards among the countries in this region.  41  On the other hand, although the  country would like to benefit from a cleaner marine environment, it probably would not want to pay for the control of those pollutants which are not indigenous to the land of Singapore. 42 Malaysia might favour the arrangements because it favours  41  See: UNEP, "Environmental Protection in ASEAN Countries" (Bangkok: UNEP Regional Office for Asia and the Pacific, 1983). la  Science Council of Singapore, "Environment Protection in Singapore: A Handbook" (1990) at 31. 93  a cleaner environment in its "front yard". 43 However, since most of the land-based pollutants in Malaysia come from agricultural and mining industries, further pollution control may economically constrain the expansion of these industries. 44 Furthermore, Malaysia might have to introduce and upgrade a few standards to match those of Singapore. Malaysia's choice of emphasis on pollutants and geographic areas of control could thus be limited. Correlation of land and marine environmental laws also would be necessary. Indonesia would probably not favour this approach because its laws are the fewest and its standards the weakest among the five countries. 45 In effect, its priorities and its regulations would be influenced by its economically better-off neighbours. Further, Indonesia has the largest area of responsibility and the most pollutants most difficult to control, such as siltation from extensive logging.  46  Moreover, Indonesia has the only oil and gas production in this region. 47 Because oil and gas are the mainstay of the economy, Indonesia may believe that its development should not  43  Lee, T.T., "Law and the Protection of the Environment" (Kuala Lumpur, 1986) at 19. 44  Maheswaran, A. and Singham, G., "Environmental Problems in Malaysia" (Kuala Lumpur, 1986) at 19. 45  Soegiarto, A., "The Indonesian Marine Environment: their Problems and Management" (Jakarta, 1988) at 7. 46  Ibid.  47  mid, at 9. 94  be hampered in any way. 7. States in This Region Could Agree to Ratify or Accede to Major International Conventions of Environmental Relevance Dealing with Land-Based Marine Pollution Advantages of this proposition would include the possibility of strengthening the states' claims to compensation, the availability of the international machinery, and the upgrading of their own laws; The disadvantages may include the preclusion of independent action, the cost and process of the increased enforcement and research, and the perceptual surrender of authority to international organizations to approve the various implementations. Positive positions of the states in this region on this possibility may be influenced by the same factors mentioned in relation to harmonization of environmental practice and regulations. D. Organization Structures Any marine environmental protection plan will have to be carried out through existing institutional mechanisms." Structurally, marine affairs involve a large number of government sectors because this field encompasses a large spectrum of activities and different interests.  49  In the  field of the conservation and protection of the marine environment, the interaction between different agencies and  48 Johnston, D.M. (ed.), "The Environmental Law of the Sea" (1981) at 221. 49  Ibid. 95  their potential for competition, conflict and duplication have grown while the coordination and harmonization of their activities have become more and more difficult and complex." In terms of the function of government agencies in marine environment protection, it is likely that early attention will have to be directed to the government's administrative organizations." If the situation is typical, environmental authority will be scattered through a great many agencies and may involve a number of potential or actual jurisdictional conflicts. The government's legal advisors will therefore want to consider the utility of establishing a new central environmental agency drawing together various components from existing agencies in order to rationalize their environmental management functions.  52  It is essential that these determinations should not be founded upon untested preconceptions of the country's administrative and legislative requirements. There can be no doubt that the harmonization of all environmental regulatory activities should be the ultimate goal of any government's long-range plan. It is less clear, however, whether a sudden, dramatic movement in that direction at this time in a developing nation will advance or retard the cause of  5o 51 (1985)  52  Soni, "Control of Marine Pollution in International Law" at 99. Ibid. 96  environmental management in the short run.  53  Given the current state of land-based marine pollution control regulations in the developing countries in Southeast Asia, government lawyers in most cases would be better advised to focus their initial efforts on strengthening existing legislations and organizations. Within each country, environmental activity can be more intensive, more effective regulatory effort. The development of more effective legal instruments, more efficient procedures, higher penalties, and so on, will in many cases be sufficient to create a marked improvement in the government's environmental performance. Once credibility is achieved, more ambitious rearrangements may be in order. Even with the attribution of major responsibilities to a particular ministry, it is necessary to establish other mechanisms or arrangements and variations for insuring proper coordination among the several ministries having responsibilities in marine or environmental affairs. These arrangements should be established at a high level - for example, an inter-ministerial committee - to ensure a capability to adopt and direct the implementation of a coherent overall national policy which would lead to the rational management and development of the ocean environment. In order to discharge its functions, the interministerial committee must have a comprehensive overview both Ibid, at 113. 97  of ongoing marine activities and of potential marine activities, and of the interactions among them. It follows, therefore, that it would require the support of an intersectoral body that would collect, consolidate and synthesize information and data derived from sectoral sources. This should permit the inter-ministerial committee to establish policy directives and set priorities which would in turn be used by a central planning board to develop an integrated marine environment protection plan. It would then be the responsibility of each ministry concerned both to translate the approved plan into specific programmes and projects, and to implement them. At the same time, necessary legislation should be enacted or revised to allow the governmental policy to be carried out and adopted programmes to be implemented. E. Planning Coastal Zone Management Program Since land-based marine pollutants are pathed into the marine environment through coastal areas, appropriate plan and management on the use of coastal zones will improve the control activities. 54 Some developed countries have already adopted coastal zone management programs. However, none of the developing countries in Southeast Asia has established a comprehensive agency responsible for a coastal planning for  54  at 112.  Johnston, D.M. (ed.), "Environmental Law of the Sea" (1981) 98  the benefit of marine pollution contro1. 55 Coastal zone management in Southeast Asia covers marine pollution, wetland protection, coral reef ecosystem, coastal zone resources, mangrove forest management, aquatic resources exploitation, beach mining, offshore oil exploration, fisheries and land use projects for recreational facilities, housing and industrial activities along the sea coast. 56 To deal with these problems, it is necessary to establish a Coastal Commission which is charged with the responsibility of supervising and coordinating the management of these projects. As relates to the control of land-based marine pollution, the following activities may be helpful: 1. Make the use of coastal land areas compatible with scenic beauty. Protecting the scenic beauty of the coastline is one of the main target of coastal zone protection.  57  The  establishment of scenic beauty spot in place of plants or habitations may help reduce the amount of land-based pollutants which would go into the marine environment. Therefore, a marine park is helpful to protecting and  55  See: UNEP , "Report on the Protection and Development of the Marine Environment and Coastal Areas of the Southeast Asian Region" Doc#UNEP/EAS.1 (April 1989) p.11. 56  Ibid, p.9.  57 Chua, T.E. and Paw, J.N., "The Environmental Impact of Aquaculture and the Effects of Pollution on Coastal Aquaculture Development in Southeast Asia" (1989) 20 Marine Pollution Bulletin 335 at 341.  99  conserving numerous habitats and ecosystems in the marine environment. Marine parks can also be an educational measure for people who may be ignorant of marine life. 2. Energy Facilities An major problem regarding coastal zone relates to energy facilities. Energy production is essential for economic development and human life. Energy facilities, including those for petroleum production and refining, should be considered in the coastal plan as wel1. 58 Naturally, this issue is different from country to country. For example, the situation in Singapore is quite serious in locating these facilities along the coastal area because Singapore is a harbour city which relies heavily on the import of raw energy; Malaysia, Indonesia and the Philippine also face the problem of energy facility management in coastal area because these countries produce raw energy themselves and have substantial business in energy export; while Thailand seems to be in better situation on this issue because it does not rely on foreign energy or on energy export. The management of energy facilities is important but difficult. Several court cases in Japan indicate the hardship included in storing petroleum or liquefied natural gas along the coastal zone. The Mizushima case in Japan in 1974 involved accidental spills of petroleum from tanks along the coast,  58  Lowe, J. and Lewis D., "The Economics of Environmental Management" (Oxford, 1980) at 71. 100  which caused serious sea water pollution in the Seto Inland Sea. 59 The 1979 cases of the Okinawa Central Terminal Station Construction and the Himeji Natural Gas Base Reclamation also demonstrate the difficulty of selecting bases for these facilities. 60 It may be argued that a comprehensive plan for locating petroleum preparation bases and for safety should be standardized and applied beforehand in order to avoid such accidents and litigation. F. Applying the Cost-Benefit Rule Social cost-benefit analysis is the economist's method of providing "a conceptual framework for assessing the social worthiness of a particular action or project based on a comparison of the total value of the expected social benefits with the total value of the expected social benefits with the total coasts involved" . 61 If the value of the expected social benefits "exceeds the total cost incurred, then the action is socially justified. "62 The cost-benefit rule can be especially important for developing countries because their technological and financial  59  60 61  ^  ^  ^  62  Ikufumi Nimi: "Environmental Problems and Economy in Japan" (University of Tokyo Press, 1986), at 35-45. Ibid, at 45-48.  M.B. Gregory, "Economic Analysis of Environmental Issues" in John Leihan and William W. Fletcher, ed.: "Economics of the Environment" (New York, 1979), at 15.  ^  Ibid. 101  capabilities on environmental management are quite limited.  63  It is suggested that the drafting on the regulations on landbased marine pollution control should revolve around the pollution control measures, with due attention given to existing social-economic situations, thus striking a balance between the cost of introducing land-based marine pollution  control and the benefits derived from them. For example, many of the oil production platforms in Malaysia are located some 150 miles off the coast." From the cost-benefit viewpoint, it would not be desirable for a unified standard of oil content to be imposed for effluent within the Malaysian exclusive economic zone. Such imposition would also probably prove to be cost ineffective. A more practical approach would be to have zonal standards with a decreasing degree of stringency relative to distance from shore. Where areas are known to be environmentally sensitive, stricter controls need to be imposed, depending on the biological and economic values. G. The Possibility of A Joint Plan It remains unlikely that effective joint operations can be mounted for the marine environment in this region because  63 Kildow, J.T., "Political and Economic Dimensions of LandBased Marine Pollution " in Charney, J.I. (ed.), "The New Nationalism and the Use of Common Space" (1987, 2d) at 79.  64 ^A. and Singham, G., "Pollution Survey of Coastal Areas" (Kualua Lumpur: division of Environment, 1989). p.5. 102  of 1)the insufficiency of personnel and equipment," 2)the usual administrative difficulties which are compounded by the necessity for close cooperation, 66 and 3) a lack of adequate financial support. 67 Besides, some countries may not want to maintain equipment and trained personnel at the level required by the contingency plan. Sovereign concerns may also arise when the marine police or navies of the countries are involved. Singapore may feel that it would be more efficient to deal by itself with land-based pollution problems in its or adjacent waters because of its established legislation and more developed control facility.  68  Malaysia may share this  view." Indonesia may also favour such a scheme because its most important priorities are on development and the government of Indonesia could thus benefit from the input of its neighbours. 7° 65  See: Chulasia, B. and Siriratpiriya, 0. (ed.), "Our Environment" (Bangkok, 1988) at 38. See: Jittirat, M., "Government Policy and Environmental Conservation" (Bangkok, 1988) at 17. 67  See: Jaafar and Valencia, "Marine Pollution: National Responses and Transnational Issues" in Kent and Valencia (ed.), "Marine Policy in Southeast Asia" !988) at 19. Science Council of Singapore, "Environment Protection in Singapore: A Handbook" (1990) at 21. 69 See: Shane, J., "Legal Aspects of Environmental Management in Malaysia" (1987) at 51. 70  Karimoeddin, E., "National Report of Indonesia" in Dielenstein, D. (ed.), "One World: Industrialization and Environment" at 14. 103  H. Training and Education In developing countries, the formation of specific legislative and institutional recommendations is not sufficient for the management of environment.  71  An  environmental infrastructure capable of supporting and implementing new legal approaches to environmental management is important for the enforcement of law. One of the most serious impediments to real progress in this respect in Southeast Asia is the lack of lawyers who are educated in the ways in which law can be used as a tool for environmental management. 72 As a result, most of these governments do not have a readily available source of creative legal thinking with respect to new environmental challenges.  73  There is an urgent need, therefore, for a major effort to furnish practical instruction in environmental regulatory techniques. The instruction should be first aimed at lawyers already working in government agencies who are charged with environmental responsibilities. Furthermore, relevant teaching materials must be prepared and furnished in ample quantities to support the establishment of new university courses on environmental law. The objective should be to create a cadre of lawyers capable of furnishing their governments with sound, 71  ESCAP, "Environmental Management in Developing Countries" (1988) at 89. 72  Lee, T.T., "Law and the Protection of the Environment" (Kuala Lumpur, 1986) at 25. 73  Ibid. 104  innovative advice in this critical area. Public education is also important to create a favourable climate for proper environmental regulations to be implemented. 74 Lectures, talks, exhibitions, and publications are some of the many forms of educational material and facilities available. I. Conducting Operational Research The type of research referred to in environmental management not only includes constructive innovations on environmental studies and control measures, but also includes practical operational research. 75 The latter is actionoriented and directed towards defining the problem at hand and formulating practical and achievable solutions within the limitations of the finances, manpower, and the technical and scientific resources available.  76  In the developing countries of Southeast Asia, land-based marine pollution cases are closely related to local geographical and social-economic specifications and, subsequently, the application of relevant control measures lies, to a great extent, on the ability of analyzing local problems and utilizing local resources." A good way to 74  at 102.  Johnston, D.M. (ed.), "Environmental Law of the Sea" (1981)  75  Ibid, at 111.  76  Ibid.  77 Hill, R.D. and Bray, J.M. (ed.), "Geography and the Environment in Southeast Asia" (Hong Kong, 1986) at 61.  105  achieve this is to conduct operational research as mentioned above. In addition, in an early stage of development, a country may not be able to afford pure academic research, especially if expensive equipment and highly trained personnel are required. 78 Operational surveys are less expensive and are essentially designed to define the problems and to work out solutions. When these countries have progressed to a certain stage, groundwork could be laid for later and more fundamental and basic research. J. The Role of External Cooperation and Assistance External technical assistance is, in fact, an integral part of the environmental management package in developing countries. 79 In developing countries, recommendations regarding government administrative organization and assistance in the development of new environmental law training programs will contribute meaningfully to the establishment of a more effective legal foundation for environmental management. m Proposals calling for changes in legislation or in organizational arrangements must be supported by an understanding of the social and cultural setting within which  78 Tipple, V.K. and Kester, D.R., "Impact of Marine Pollution on Society" (1989) at 27. 79  at  Johnston, D.M. (ed.), "Environmental Law of the Sea" (1981)  233.  80  Ibid. 106  the new laws or institutions will have to operate.  m  However,  this is a point that cannot be emphasized too strongly in developing countries. The creation of new legal apparatus for environmental management is a subtle and complex issue, and the process must be carefully tailored to the unique characteristics of each country. It is an undertaking that calls for patience and sensitivity.  82  Besides, international organizations should consider the creation of a specialized institution whose function would be to bring together governments seeking assistance in the development of new environmental legislation and qualified experts capable of delivering that assistance. The institution might consist of a relatively small staff, but it would maintain a roster of qualified attorneys willing to undertake short or medium term contracts in order to respond to requests for such help.  °  External technical assistance needs to be reviewed to become an effective agent for the advancement of environmental management in the countries in Southeast Asia. A progressive revision should have several facets: 1) Technical assistance  Ibid, at 114. 82  Ibid, at 119. See W.W. Shaner: "Some Problems Associated with the Use of Foreign Advisors in Developing Countries" in E. Vlachos ed.: "Transfer of Water Resources Knowledge" (Water Resources Publications, Colorado, 1983), at 345. 107  must be updated." 2) The execution of technical assistance need to be adjusted to intensify the interaction between the assisting country and the assisted country. 85 3) Assistance application must be de-bureaucratized. ° In particular, the goal and measure of success must be more than a report, no matter how elaborate or packaged. Technical assistance requires that international and bilateral technical aid, donor, and lending agencies hold the key to the practical development in technical assistance. 87 K. Establishing a Proper Balance Between Controlling LandBased Marine Pollution and Attracting Foreign Capital As mentioned before, investors in developing countries which have stringent environmental management regulations tend to shift their investment into developing countries which have less stringent environmental regulations so that they could avoid the cost of pollution abatement. ° Southeast Asia is a region where environmental sensitive countries, such as the U.S. and Japan, put a lot of pollution-generating investment. 89 Apart from cheap labour and raw materials in 84 ^& Valencia (ed.), "Marine Policy in southeast Asia" (1986) at 41. 85 86  Ibid.  87  Ibid, at 118.  Lowe J. and Lewis D., "The Economics of Environmental Management" (1980) at 17. 89  See: ASEAN Year Book, Vol. 1991, No.1, p.8. 108  these countries, one of the important reasons for the concentration of foreign investments in this region is that attractive terms are offered by these governments to induce foreign industrial investment. 90 There should be a proper balance between the desire to attract foreign capital on the one hand and the necessity of safeguarding the environment on the other hand. From experience, it has been found that in the early stages of industrialization, it may be necessary not to insist on overly strict compliance with environmental standards so as to avoid undue hindrance to production and development." However, industrial development must not be achieved at the expense of constant serious damage to the ecosystem. As development progresses, the necessity of insisting on more stringent compliance with the minimum pollution abatement standards must be emphasized. Otherwise, the price in terms of degradation of the environment may be too high for society to bear. L. Environmental Impact Assessment As mentioned before, the countries in Southeast Asia have started on the groundwork of conducting environmental impact assessment, though no comprehensive work has been done in this regard. Further efforts on environmental impact assessment in these countries are needed. For example, specialists in  9° Ibid.  91 ^V.K. and Kester, D.R., "Impact of Marine Pollution on Society" (1989) at 49. 109  specific fields should be charged with the responsibility of assessing environmental effects in their fields and providing the necessary information on the likely environmental effects for informed decision making. As the machinery for and the commitment to planning already exist in these countries, there  need be no significant change to the existing institutional arrangements for project submission, evaluation and approval process. All that is required is an enlarged planning methodology for the environmental dimension to be integrated into development planning right from early stages of planning.  110  CHAPTER V: PROSPECTS FOR REGIONAL CO-OPERATION ON LAND-BASED MARINE POLLUTION CONTROL IN SOUTHEAST ASIA  Since marine pollution knows no boundaries, its control has international as well as national dimensions. In Southeast Asia where nations are separated only by short stretches of sea 1 and where a pollutant entering into the marine environment within one national jurisdiction may quickly have a deleterious impact on another nation's coastal zone, 2 the issue of marine pollution control from a regional perspective is particularly complex. All the states in Southeast Asia are littoral states.  3  The disputes among these littoral states on marine boundary delimitation have existed for a long time.  4  If all the states  in Southeast Asia extend their marine jurisdiction as they claim, the entire region would become a mosaic of national control. 5 Disputes would arise when different states claim jurisdiction over the same area of the sea, and this adds more difficulty to the issue of marine pollution control in the area which is claimed by different countries. For example, Hill, R.D. and Bray, J.M., "Geography and the Environment in Southeast Asia" (Hong Kong, 1986) at 17. 1  2  Ibid, at 23.  3  Ibid, at 3.  4 See: Kent & Valencia, "Marine Policy in Southeast Asia" (1986) at 17-25.  5  Ibid, at 24. 111  most countries in Southeast Asia claim exclusive economic zones reaching 200 nautical miles from the national baselines. 6 A coastal state's rights over the exclusive economic zones would comprise jurisdiction with regard to the preservation of the marine environment. If pollution from land is found in an area which is claimed by two different countries as economic zone, which country is responsible for bring about the pollution? And which country is further responsible for taking active measures to prevent pollution in this area? To solve these problems, regional co-operation is needed. Moreover, the ocean is a natural geo-political link for nations through their interactions and interdependent policies concerning the management of its environment. 7 Extended national jurisdiction does not alter the facts that: (1)marine resources are often transnational in distribution; (2) the ocean, as a continuous fluid system, transmits environmental pollutants and impacts; and (3) maritime activities transcend the projected national marine jurisdictional boundaries.  8  Thus, overlapping boundary claims may create opportunities for regional cooperation or. In this Chapter the different  6  Jaafar and Valencia, "Marine Pollution: National Responses and Transnational Issues" in Kent and Valencia, "Marine Policy in Southeast Asia" (1986) at 52. 7 Okidi, C.O., "Regional Control of Ocean Pollution: Legal and Institutional Problems and Prospects" (1988) at 16. 8  Ibid. 112  national marine interests of the Southeast Asian countries are examined, and the opportunities for, as well as constraints on, a cooperative regional approach on land-based marine pollution control are explored. A. National Marine Interests of Major Southeast Asian Countries Each country in Southeast Asia has its own interests in the marine area and is thus, presumably, in a position to affect, or be affected by, the developments of other countries on the management of the marine environment.  9  Malaysia As a water-separated state, Malaysia has a national security interest in unrestricted access and communication between Peninsular Malaysia and Sarawak and Sabah." Hydrocarbon exploitation is ongoing off both Sarawak and Sabah, and these states are rich in other natural resources such as timber, coal, and copper." Moreover, one of the largest Malaysian development projects - a liquefied natural gas plant and aluminium smelter - is situated in Bintulu, Sarawak. 12 9  Ibid, at 35.  10 See: Anderson, J., "Perceptions and Definitions of the Coastal Zone in the Asian Humid Tropics" p.3 and Lee, et al., "Coastal Zone in Malaysia" p.5. " See: Miyoshi, M. and Valencia, M.J., "Southeast Asian Seas: Joint Development of Hydrocarbons in Overlapping Claim Areas" 16 Ocean Development and International Law 211 12 Supra note 2. 113  Malaysia has accepted the Indonesian archipelagic concept with the provision that the legitimate and existing rights of states adversely affected by the principle would be protected by international law.  13  Such rights may also include the  protection of marine environment.  14  Malaysia may also  eventually be concerned about passage from the west to the east coast of the Peninsula through Singaporean waters, and from Sarawak to Sabah through Brunei's waters when the latter extends its jurisdiction.  15  Security and sovereignty considerations are strong factors in Malaysia's position on use of its "front street"-the Malacca Straits." Environmental protection in the Straits, formerly a secondary issue, has now become of prime importance to Malaysia. 17 Anti-pollution feeling is becoming stronger among the population, and an oil spill contingency plan has been adopted for the Straits." There is a provision in the Environmental Ouality Act of 1974 regarding oil discharge and the liability of the party causing the pollution  13 See: ASEAN Yearbook, Vol.1986, p.15. 14  Ibid.  15 Kent and Valencia, "Marine Policy in Southeast Asia" (1986) at 75. 16 Lee., T.T., "Developing Economy and Marine Policy" (1990) at 18. 17  See: Suhaimi, A. "Anti-Pollution in Malaysia" in 4 Asia Today 13 18 114  to bear the costs for removing it." Further, it enables enforcing officials to detain any ship involved in a spill or discharge and, with court permission, to sell it if the owner is unable to pay the fines and the costs. 2° Singapore  Singapore has the smallest area in the region and the second smallest population, but has the second highest GDP per capita. 21 Singapore is considered geographically disadvantaged, being shelf-locked and having the least potential offshore area accruing in the event of a 200-mile limit. 22 The small area of Singapore accounts for the highest proportion of coastline per unit area, which fosters a sense of intimacy with the sea among its people. 23 Singapore intends to enhance its status as the maritime centre of Southeast Asia, serving to consolidate and disperse the Europe-Southeast Asia trade. 24 In the long term, Singapore may thus benefit from the extension of jurisdiction 19  ^Environmental Quality Act (1974), Article 19.  20^Parvez  Hassan: "Status of Environmental Protection Legislation in the ESCAP Region", ESCAP/UNEP Intergovernmental Meeting on Environmental Protection Legislation, July 1987, Bangkok, at 28.  21 See: (1991) 9 Asia Today 2 22  Chia Lin Sien, "Planning and Environmental Management in Singapore" (Hong Kong: Hong Kong University Press, 1988) p.9 23  Ibid.  24  See: (1991) 9 Asia Today 10 115  of its neighbour and their increased marine activities.  25  Because of the small offshore area accruing under a 200-mile regime, presumably, Singapore will have the least problem in enforcing transnational regulations there.  26  Thailand Thailand is zone-locked in the Gulf of Thailand and in the Andaman Sea, and thus has interests in the types of marine regimes promulgated by its neighbours.  27  Coastal defence and  control of smugglers, pirates, and illegal domestic fisheries operations are the government's general concern. 28 Thailand is also concerned with the settlement of its offshore boundaries with its neighbours. 29 It has settled nearly all of its marine borders on its Andaman Sea coast, for example, with Indonesia and with Malaysia; the only remaining unsettled Andaman Sea boundary is with Burma.  30  Borders in  the eastern Gulf of Thailand remain a problem, especially because of hydrocarbon potential. Thailand and Malaysia both  25  at 91. 26  Kent and Valencia, "Marine Policy in Southeast Asia" (1986) Ibid, at 92.  27 Hill, R.D. and Bray, J.M., "Geography and the Environment in Southeast Asia" (Hong Kong, 1986) at 71. 28  Jittirat, M., "Government Policy and Environmental Conservation" (Bangkok, 1988) at 24. 29 Kittichaisaree, K., "The Law of the Sea and Maritime Boundary Delimitation in Southeast Asia" (New York: Oxford University Press, 1988) p.29.  30 Ibid.  116  claim a small area which extends offshore from their land border and contains a gas field.  31  B. Background Developments on Regional Efforts on Marine Pollution Control in Southeast Asia There have been some regional efforts regarding the coordination of rights and duties with respect to the preservation of marine environment in Southeast Asia. The region is large and the environmental problems are varied. Therefore, protection of the sea and the living marine resources have been dealt with on a sub-regional basis, in response to the needs and priorities of the states directly concerned. For example, Malaysia, Indonesia, and Singapore have cooperated very closely on matters relating to the Straits of Malacca, especially as relates to the prevention of pollution. One of the results of such cooperation is the agreement in 1977 among the three states which was adopted by the Inter-Governmental Maritime Council (IMCO)  32 .  One feature  of this scheme was the adoption of 3.5 meters as the Under Keel Clearance (UKC) for deep draught vessels.  33  Malaysia had  been concerned that there should be a link between the U.N. Law of the Sea Convention, III and the UKC of 3.5 meters.  34  31^Lee  Yong Leng: "Offshore Boundary Disputes in Southeast Asia", 10 (1) Journal of Southeast Asian Studies, at 178.  32^IMCO  Resolution A, 375(X) adopted on 14 November, 1977.  33 Kent and Valencia, "Marine Policy in Southeast Asia" (19860 at 101. 34  Ibid. 117  In this regard, Malaysia (in consultation with Indonesia and Singapore) conducted negotiations 35 with the U.S., the U.K., and the Soviet Union. As a result, a compromise proposal (Article 234) was incorporated in that part of the ICNT dealing with protection and preservation of the marine environment. 36 The effect of this provision is that where a foreign ship violates the laws and regulations of the strait states in respect of prevention and control of pollution "causing or threatening major damage to the marine environment of the straits, the State bordering the straits may take appropriate enforcement measures".  37  Besides, regional scientific cooperation has been successful in this region. The ASEAN Committee on Science and Technology (COST) has a subcommittee on marine science which has discussed the possibility of a cooperative approach to extra-regional access for marine scientific research.  38  COST  has also spawned an informal committee on pollution in 1987 and a proposal for an ASEAN Sub-Regional Environment Programme in 1988. 39 As part of this programme, the member nations have discussed a coordinated approach to marine environmental  35  Ibid.  36  Ibid.  37  Ibid.  38 The most recent meeting of the subcommittee was held in Singapore in March, 1990. See: 8 Asia Today 14. 39  Ibid. 118  protection with the Regional Seas Programme of the United Nations Environment Programme (UNEP) in 1988. 4° In the field of training, participants from Southeast Asian countries attended the Second Regional Training Course in the Marine Environment held in Japan from July to September in 1985, with the assistance of the United Nations Educational, Scientific and Cultural Organization (UNESCO) ." In September 1985, a regional meeting on Training, Educational and mutual Assistance devoted to oceanographic problems of East Asian Seas was organized in Malina by the Intergovernmental Oceanographic Commission (IOC) of UNESCO. The Food and Agricultural Organization (FAO), in cooperation with the Swedish International Development Agency (SIDA), held a training workshop on aquatic pollution in relation to protection of living resources in Manila in 1987. 42 Furthermore, in accordance with Decision 88D (V) of the Governing Council of the U.N. Environment Programme, the following work has been done by U.N.E.P.: In March 1982, the representative from the UNEP visited the region to discuss possible elements for an action plan (governments, ASEAN, UNEP, agencies); 43 4° Ibid.  41 Hamzah, B., "Towards Environmental Management" (Singapore, 1989) at 13. 42 Ibid. 43  6-7.  Report of the Executive Director, UNEP/GC, April 1988, at 119  In June 1983, the draft action plan to ASEAN SubCommittee on Environment (governments, ASEAN, UNEP) was presented;" In October-November 1984, representative was sent to the region to discuss revised draft action plan (governments, ASEAN, UNEP, agencies); 45 In November 1984 - March 1985, series of training events (workshops, seminars, training courses) were held in the region (governments, UNEP, agencies  );  46  In March 1986, a meeting was held on the review all components of an action plan (governments, UNEP, all relevant organizations); 47 In August 1986, a meeting was held to refine the legal components of the draft action plan (governments, UNEP); 48 In October 1986, a inter-governmental meeting was held to review and adopt the action plan including adoption of the regional convention (governments, UNEP, all relevant organizations). 49 C. Constraints for Regional Cooperation in Southeast Asia There are numerous general and specific constraints which  45  Ibid.  46  Ibid.  47  Ibid.  48  Ibid.  49  Ibid. 120  must be overcome to move toward functional marine regionalism or sub-regionalism within Southeast Asian countries. These general and specific constraints should be viewed within the current and evolving regional political context. Since most of the countries in Southeast Asia achieved their independent status after World War II, many of these countries are still struggling with the problems of nationhood such as the creation of a sense of national identity among the population, territorial integrity, or establishment of a viable economic and social system." These factors tend to introduce a nationalistic factor into regional affairs. Within ASEAN, political-economic relations are cordial but competitive and perhaps unstable in the long run." For example, Thailand must maintain a precarious balance between its own political-economic system and those of the region. Malaysia and the Philippines have not yet resolved the Sabah issue to Malaysia's satisfaction.  52  The ASEAN economies  produce many of the same raw materials for their national livelihood, and the resulting direct competition for credit, investment markets, and development assistance may increase concomitantly with development.  53  Other more far-reaching or  50 Chen M.K., "Strategies of Industrialization in ASEAN Countries" in Paw, S.W., "Economic Problems and Prospects in ASEAN Countries" (Singapore, 1987) at 31. ,  51 52  53  ^at 42.. Ibid. ^at 44. 121  longer-term indigenous political changes could create instability within ASEAN, for example, political revolutions in the Philippines, or racial disorder in Malaysia.  54  Anticipated economic benefits may be a prime motivation for jurisdictional extension, but such extension will produce unanticipated economic and political side effects. First, the zones of extended jurisdictions will bring more areas and more types of activity under the control of coastal states. Coastal states will have to develop policies and efficient management designs for the environment, resources, and the increasing varieties of activity within these zones. 55 However, in the countries in Southeast Asia, the administrative, scientific, and technical infrastructure is presently inadequate for efficient management. 56 Therefore, national management policies may be formulated without critical information or the capacity to implement them. Second, there is also apparent need for increased bilateral and multilateral consultations, as well as a new degree of coordination to meet the challenge of these impending changes in marine use patterns and concepts. The form, substance, effectiveness, and net benefit of national management designs will both influence and be influenced by 54  Ibid, at 51.  55 0kidi, C.O., "Regional Control of Ocean Pollution: Legal and Institutional Problems and Prospects" (1988) at 59. 56 Paw, S.H., "Economic Problems and Prospects Countries" (1987) 71.  122  in ASEAN  the interests, activities, and policies of the maritime powers and nations with adjacent jurisdictional zones. Maritime powers may choose to exploit policy differences by shifting their activities towards areas of least resistance. Thus, diverse national policies for zones of extended jurisdiction will have interdependent implications for the protection and management of the marine environment and its resources as a whole. Southeast Asian states are beginning to develop a clear perception of their own national marine interests and how these differ from those of neighbouring states or maritime powers. However, at this point, commonalities factors are neglected and differences emphasized. 57 There is perhaps a lack of mutual understanding by policy-makers of (1) the transnational marine environment and resource interdependencies,  58  (2) the consequences of diverse national  marine policies regarding resource exploitation and environmental management,  59  and (3) national social-economic  and political goals with respect to the environment and resources in national marine jurisdictional zones." Furthermore, the maintenance of newly acquired national 57  See: Jittirat, M., "Environmental Conservation Through Laws" in Chulasia, B. and Siriratpiriya, 0., "Our Environment" (Bangkok, 1988) at 45. 58  Ibid.  59  Ibid.  68  Ibid. 123  sovereignty over ocean resources has become central to the national security. M Cooperation or coordination cannot be perceived as endangering these basic principles. On the other hand, these fundamentals may be complicated by other obstacles. For example, a lack of understanding on one country's five-year or other fixed term development plans by another country could inhibit cooperation or coordination of regional scientific research. Moreover, different national interests and marine policies may hamper the coordination of marine environmental regulations. With the extension of jurisdiction by the Southeast Asian littoral countries, there will be imbalances imposed upon an already economically and politically competitive region. For example, the marine area of Singapore is small compared with the areas of Indonesia, Malaysia, and the Philippines. 62 Thailand will also be at comparative disadvantage in terms of fishery resources. 63 Such a geographic distribution may endanger the progress of cooperation. It may also exacerbate wider regional tensions. For example, the windfall increase in area and resources for Indonesia may provide competition and conflict between Indonesia and the Philippines. 64  61 Ibid, at 75. 62 Hill, R.D., and Bray, J.M., "Geography and the Environment in Southeast Asia" (Hong Kong, 1986) at 17. 63  Ibid, at 18.  64  Ibid, at 21. 124  The settlement of jurisdictional boundaries is a prerequisite for cooperation on most other issues. 65 The baseline of a coastal state's territorial sea is the foundation for its other claims." There are general agreements on the 12-mile limit for the territorial sea among the coastal states of Southeast Asia. 67 Nevertheless, the coastal states disagree on a lot of issues on the adoption of baselines from which the territorial sea is measured. For example, both the Philippines and Indonesia claim the boundaries of their archipelago as baselines for their exclusive economic zone and the continental shelf.  68  Moreover, the disputed ownership of numerous islands in the South China Sea is another source of serious disagreement in delimiting sea boundaries in the region.  69  65 Okidi, C.O., "Regional Control of Ocean Pollution: Legal and Institutional Problems and Prospects" (1988) at 72. 66  Ibid.  67  Jaafar and Valencia, "Marine Pollution: National Responses and Transnational Issues" in Kent and Valencia, "Marine Policy in Southeast Asia" (1986) at 83. 68  Ibid, at 84.  69  Ibid, at 90. 125  CONCLUSION: INSTITUTIONAL AND ORGANIZATIONAL FRAMEWORK: A PROPOSAL  In order to cope with the environmental problems associated with their social and economic development, the countries in Southeast Asia have incorporated the management of the environment into their respective legislation. In the field of the control of land-based marine pollution, these countries have started to do some background work in their respective legislation. However, since the control of marine pollution needs the cooperation of littoral states in the same area, regional cooperation is needed among the developing countries in Southeast Asia. Cooperation in the regional efforts on the control of land-based marine pollution is especially important in the fields of data collection and exchange, transfer of technology, pollution monitoring, environmental education and training, and development of contingency plans. Such cooperation schemes may be served by concluding a convention for the protection of marine environment in the Southeast Asian seas and by establishing an Southeast Asia environmental organization. With regard to the conclusion of a regional convention, we can learn from the experiences of other regions, such as  126  the Mediterranean Sea, the Baltic Sea, and the Persian Gulf.  1  Such experience should be applied according to the specific social, economic, political, and environmental situations Southeast Asia. In view of the importance and complexity of the problem, it might be advisable that the regional convention in this region should deal with not only marine pollution control but also with protection of the natural state of the marine environment. In this connection, natural parks and reserves will play an important role in the future utilization of the marine environment of the Southeast Asian region. For the purpose of implementing this type of convention, Southeast Asian countries should establish environmental agencies which carry out the following functions: (1) Keep the implementation of the convention and its protocols under continuous observation; (2) Make recommendations on the regional or sub-regional rules and standards to be elaborated and on measures to be taken by the contracting parties; (3) Determine a "specific area" in which the ecological conditions, natural characteristics or the particular character of the traffic requires special regulation and approve regional or sub-regional rules and standards for this  1 As stated in Chapter III, for regional cooperation on marine pollution control, see: Johnston, D.M., "The Environmental Law of the Sea"(1981) at 122-147; Hulm, P., "A Strategy for the Seas: the Regional Seas Programme--Past and Future" (1983). 127  purpose; (4) Designate and manage regional parks and reserves;  (5) Examine a development program submitted by the countries in this region and when necessary, request it to submit an environmental impact statement and consult with a party or parties concerned; (6) Act as the centre of an environmental monitoring system and receive reports presented by the contracting parties for this purpose; (7) Act as a centre for notification of any imminent danger from pollution or threat of pollution by the contracting parties; (8) Promote, in close co-operation with appropriate governmental bodies, the protection of the marine environment of the Southeast Asian waters; and (9) Seek assistance from other regional or international bodies in scientific research and other relevant activities pertinent to the objectives of the convention. There may be some doubt on whether the general climate in the Southeast Asian region has grown ripe for the conclusion of a regional or sub-regional convention on the control of land-based marine pollution. The existence of complicated political and economic problems seems to be the major obstacle to the establishment of a regional framework on the control of land-based marine pollution. However, the active efforts by 128  each individual country will provide a key for the cooperation on land-based marine pollution control in Southeast Asian seas. 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