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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 POLLUTIONIN SOUTHEAST ASIA: A LEGAL PERSPECTIVEbyTONG CAILL.B., Beijing University, China, 1988A THESIS SUBMITTED IN PARTIAL FULFILMENT OFTHE REQUIEMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF LAWWe accept this thesis as conformingTHE UNIVERSITY OF BRITISH COLUMBIAApril, 1993©Tong Cai, 1993In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature) ift;tittl  triezofThe University of British ColumbiaVancouver, CanadaDate  4/7i-.^/; y3DE-6 (2/88)ABSTRACTMarine pollution from land-based sources is a new andchallenging topic in international law development. Since thesubject matter of land-based marine pollution is very complexin social-economic and scientific terms, the implementation ofthe newly developed rules of international law on land-basedmarine 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 isa considerable base for land-based marine pollution, isexperiencing a serious degradation from this kind ofpollution. The developing countries in Southeast Asia havestarted to provide provisions concerning the control of land-based marine pollution in their respective legislation ineither a general or a specific way. However, due to thevarious reasons, the current efforts on the control of land-based marine pollution from the legal aspect by thesecountries are far from sufficient.Many of the problems at earlier stages of development canbe solved by learning experience which advanced countries haveforegone in the past. As regards to land-based marinepollution control, effective legal efforts have been made bythe Baltic states, the United States, and Japan. The SoutheastAsia countries may borrow the appropriate ideas, methods, andoperational systems worked out by these countries withsuitable modification and adaptation in consonance with localcustoms, tradition, and social-economic peculiarities.There is considerable potential capability in thecountries of Southeast Asia of forming legislative frameworkand establishing effective enforcement strategy for land-basedmarine pollution control. On the other hand, in Southeast Asiawhere there is a highly complex social-economic construction,the contraversies between nationalism and regionalism appearto be the major obstacles in terms of effective legal controlon land-based marine pollution. Further efforts should be madeto achieve a concerted regional approach as well asconresponding national commitments in the protection andpreservation of the marine environment in Southeast Asiaagainst pollution from land-based sources.iiTABLE OF CONTENTSPageAbstract^ iiTable of Contents^ iiiAcknowledgements viCHAPTER I: Marine Pollution From Land-Based Sourcesin the Coastal Environment of Southeast AsiaA. Increasing Problems of Land-Based Pollutionin the Coastal Area of Southeast Asian Countries^2B. Factors Which Cause Land-Based Marine PollutionProblems in Southeast Asia^ 71. Biological Factorsa. Climatic Factors 8b. Tolerance of Coastal Ecosystems^9c. Mangrove Swamp Forests in the Region^92. Social-Economic Stress^ 103. Agricultural Effluent 114. Industrial Development 11a. Lack of practicable anti-pollutiontechnologyb. Small industriesc. Voracious appetite of industrializedcountriesd. Industrial concentration5. External Pressures^ 13CHAPTER II: Current Legislation on the Control ofLand-Based Marine Pollution in Southeast AsiaA. General Initiatives of Pollution Control inSoutheast Asian Countries^ 161. Growing Awareness 162. Institutionalization 163. Norm-Creating Regional Activities^20B. Regional Response to Developments in InternationalEnvironmental Law^ 21C. Current Legislation on Land-Based Marine Pollutionin Southeast Asian Countries1. Constitutional Foundation2. General Environmental Laws in Relation toEnvironmental Protection242426iii3. Specific Legislations on Land-Based MarinePollution Control^ 31D. Problems on the Control of Land-Based MarinePollution Through Legal Efforts in Southeast AsianCountries^ 411. The Separation of Legal Rights andResponsibilities among Different Levelsof Government Agencies^ 412. Lack of Environmental Quality and WasteDisposal Standards in Legislation^443. Foreign Model of Legislation 454. Lack of Officers^ 475. Role of Attorneys 486. Nature of Liability 517. Public Attitudes Towards Law^ 538. Other Legislative Problems 559. Lack of Sufficient Environmental ImpactAssessment^ 56Chapter III: A Comparative Study on the Topic ofLand-Based Marine Pollution ControlBetween Developed Countries andDeveloping CountriesA. Major Legal Issues in the Experience of DevelopedCountries in Land-Based Marine Pollution Control^591. The Social-Economic Dimensions of the LawsConcerning Land-Based Marine Pollution Control 572. The Nature of Liability^ 643. The Issue of State Responsibility^664. The Issue of Control Measures 685. The Montreal Guidelines 72B. What is the Appropriate Type of Legal Structurefor Land-Based Marine Pollution Control inin Southeast Asian Countries^ 751. The Role of Government Agencies^ 752. How Stringent Should EnvironmentalMeasures be Enforced 773. The Necessity of Basic Research andEnvironmental Impact Assessment^ 78Chapter IV: Proposals for Future Development onLand-Based Marine Pollution Controlin Southeast Asia from Legal PerspectiveA. Institutional Framework^ 81B. National Policies^ 83ivC. Legislative Recommendations1. Establish Clearly Discernable Obligations^882. Permit Administering Agencies to TailorTheir Authorities^ 893. Facilitate Rapid Adjustments to ChangingTechnology^ 904. Root in Reality 905. Implement Relevant Provisions of UNCLOS,III^916. Harmonize State Practice and ReconcileControl Regulations for Major CommonPollutants^ 927. Participate in Major International Conventions^94D. Organizational Recommendations^ 95E. Planning Coastal Zone Management Program^98F. Applying Cost-Benefit Rule^ 101G. The Possibility of a Joint Contingency Plan^102H. Training and Education^ 104I. Conducting Operational Research^ 105J. The Role of External Co-operation and Assistance^106K. Establishing Balance Between Land-Based MarinePollution Control and Attracting Foreign Capital^108L. Conducting Environmental Impact Assessment^109Chapter V: Prospects for Regional Cooperationand Future Developments^ 111A. National Marine Interests of Major SoutheastAsian Countries^ 113B. Developments on Regional Efforts^ 117C. Constraints for Regional Co-operation 120Conclusion: Institutional and Organizational Framework^126Bibliography^ 130ACKNOWLEDGEMENTSI would like to express my heartfelt thanks to my thesissupervisor, Professor Ian Townsend-Gault, who patiently guidedme in the course of my research.Deep thanks go to Professor Karin Mickelson, whosegenerous help and kind advice has greatly encouraged me in thepreparation of this thesis.I am grateful to the Graduate Committee of the Faculty ofLaw of U.B.C., especially to Professors Pitman Potter, MarilynMacCrimmon and DeLoyld Guth, for their consistent help.Finally, I remain eternally grateful to my family andfriends for their mental support.I need hardly add that I am solely responsible forwhatever mistakes this thesis may contain.CHAPTER I: MARINE POLLUTION FROM LAND-BASEDSOURCES IN THE COASTAL ENVIRONMENT OF SOUTHEAST ASIAThe countries in southeast Asia have achieved rapidprogress in their social-economic development for the past 30years. 1 As environmental issues are associated with theeconomic development of a society, these countries haveinevitably faced increasing environmental problems in theirdevelopment. 2 For example, the discharge of industrial waste,which is an unavoidable result of industrial modernization,has caused serious environmental degradation in this area. 3Moreover, the use of advanced technologies on agriculture anddomestic life has brought new threat to the environment. 4Pollution from industry, agriculture, and domestic life hasnot only caused damage to the environment on land, but hasalso caused increasing degradation on the coastal environment1 See: P.S. Smith, "Changing World of East", (OxfordUniversity Press: New York, London, 1990) at 15.2 For general information on marine pollution in SoutheastAsian seas, see: FAO/IPFC Secretariat, "Preliminary Review on theState 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 ASEANCountries" in Saw Swee-Hock and Lee Soo Ann, "Economic Problems andProspects in Asean Countries" (Singapore, Singapore UniversityPress, 1987), at 83-101.3 Ibid, at 48.4 For details, see: ibid, at 70.1of this region. 5 Thus, land-based marine pollution, which hasbeen an environmental problem for almost all the regional seasin the world, is a major problem for the protection of thecoastal marine environment in Southeast Asia.It should be noted that the special biological andphysical features of the coastal environment in this regionhave made the pollution from land-based sources as a result ofsocial development more serious. 6 In this chapter, anexamination is given on the situation of marine pollution fromland-based sources in this region, with special emphasis onthe factors that cause these land-based marine pollution.A. Increasing Problems of Land-Based Marine Pollution in theCoastal Area of the Countries in Southeast AsiaIt is generally conceded that, in their struggle forsocial and economic development in past 30 years, thecountries in Southeast Asia have not become seriouslyconcerned with the degradation of the marine environment byuntil recently. 7 Only a few surveys of the level of marine5 See: Chua, T.E. and Paw, J.N., "The Environmental Impact ofAquaculture and the Effects of Pollution on Coastal AquacultureDevelopment in Southeast Asia" (1989) 20 Marine Pollution Bulletin335 at 3376 For more on the physical structure of Southeast Asianwaters, see: Wyrtki, K., "Physical Oceanography of the SoutheastAsian Waters" (La Jolla, California: Scripps Institute ofOceanography, 1981).7 See: Chulasia, B. and Siriratpiriya, O., "Our Environment"(Bangkok, 1988) at 3.2pollution from land-based sources have been made in thisregion. 8Conventional thermal power is scattered throughout theregion, with the greatest concentrations in the vicinity ofthe large cities, particularly Manila, Bangkok, and theSingapore. 9 Several geo-thermal outfall are located along thecoast in the eastern Philippines."Organic and biological pollutants come from the followingsources: firstly, human waste, for example, waste fromdomestic life; secondly, agricultural waste, for example,waste from the producing of palm oil or rubber, or fromtapioca processing, animal excrement, or commercialfertilizers; and thirdly, the discharge from industries, forexample, waste from food and beverage processing or fromtextile producing. 11Domestic pollutant concentrate on the areas that aredensely populated. Almost all large cities in this region are8 Environmental surveys began in early 1980s in SoutheastAsian countries, eg. in Singapore(1981), Thailand (1983), thePhilippines (1983). But most of the environmental studies taken inthe 1980s were conducted by private organizations and were limitedto specific regions. Large-scale official environmental surveysbegan in mid-1980s by the governments of these countries.9 Ibid.10 Ibid.See: Kiss, A.C., "The International Protection of theEnvironment" in MacDonald, R.J. and Johnston, D.M., "The Structureof International Law" (The Hague, Martinus Nijhoff, 1983) p.43.3situated in the coastal area or by the rivers that flow intothe sea. 12 Most of the population in this region concentrateon the island of Java in Indonesia, the metropolitan area ofManila in the Philippines, Bangkok in Thailand and theSingapore City in Singapore." Therefore, extensive sewagepollution occurs in the above area. 14 In Malaysia, Sabah andSarawak, concentrations of pollutants from domestic sourcesare about twice as great as from industrial and agriculturalsources." The greatest concentration in this region was onthe west coast of peninsular Malaysia. Metropolitan Manilaproduces a liquid pollution load of about 130,000 tons BODannually, most of it from domestic sources. 16 In the Bangkokregion the liquid pollutant load is estimated to be about83,000 tons BOD per year. Water pollution arises primarilyfrom domestic sewage, which is uncontrolled and eventually12 See: Chua T.E. and Paw, J.N., "Aquaculture Development andCoastal Zone Management in Southeast Asia: Conflicts andComplementarity" (Proceedings of the Fifth Symposium on Coastal andOcean Management, Seattle, Washington, U.S.A., 1987) at 98.1314 Chua, T.E. and Paw James N., "The Environmental Impact ofAquaculture and the Effects of Pollution on Coastal AquacultureDevelopment in Southeast Asia" (1989) 20 Marine Pollution Bulletin335.15 See: Chua T.E. and Charles, J.K., "Coastal Resources of EastCoast Peninsular Malaysia" (Malaysia, University of Malaysia Press,1988) at 17; Chua T.E. and Mathias, J.A., "Coastal Resources ofWest Sabah" (Malaysia, University of Malaysia Press, 1989) at 6.16 See: Mahmud, A.A., "Protection of Malaysia's MarineEnvironment" (Kualar Lumpur, Institute of Strategic andInternational Studies, 1988) p.54reaches the marine region. The liquid pollution load from theupper gulf is somewhat larger, 92,600 tons BOD per year, andmost of it is from industrial sources. 17Agricultural waste come from logging, terrestrial mining,and offshore mining. Luzon in the Philippines has the mostextensive logging-derived sedimentation. 18 The Bight ofBangkok, the west coast of Peninsular Malaysia, north Java andMadura, and the Philippines have extensive regions ofsedimentation from agriculture-related activities. 19 Thewaters in the Philippines, particularly those off westernLuzon, Negros, Cebu, Samar, Balabac, and the Calamain group,receive considerable sediment from terrestrial miningactivities. Less extensive patches of polluted waters arelocated off the coast of Sarawak, north and east of Jakarta,and in Kepulauan Lingga. 2°To meet the demands of the construction industry duringthe boom of the late 1970$ and early 1980$, many rubberplantations in Singapore were converted into sand pits,especially in the eastern part of the island, which silted17 Hungspreugs, M. and Utoomprurkporn, W., "The Present Statusof the Aquatic Environment of Thailand" (1989) 20 Marine PollutionBulletin 32718 The Philippines: National Environmental Protection Council,Solid Waste Subsidy Programme, "Accomplishment Report" (Manila,1989).19 ^T.E. & Paw, James N., "The Environmental Impact ofAquaculture and the Effects of Pollution on Coastal AquacultureDevelopment in Southeast Asia" 2 0 Marine Pollution Bulletin 33520 Ibid.5watercourses and eventually led to the changes in the coastalmarine habitat. 21Heavy metals, such as lead, mercury, cadmium, zinc, andsilver are derived from smelting, electronics, plastics,petrochemical and mining industries, domestic wastes, andweathering. Heavy metals may accumulate in fish, shellfish,sea cucumbers, and seaweed tissues, rendering them unsafe forhuman consumption. Sediments and water from the lower reachesof rivers draining into the Gulf of Thailand reveal highconcentrations of mercury, lead and zinc. 22 In Indonesiaheavy metals are a major localized source of pollution limitedto coastal waters off the larger urban centres. 23 In Malaysiathe Juru River adjacent to the Perai Industrial Estate revealhigh level of mercury, cadmium, and cooper. 24 In Singapore,levels of mercury are high in the Jurong river. 25Synthetic 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 inSingapore" (Singapore, 1982) p.13322 Siriruttanachai, S., "Accumulation of DDT, PCB and CertainHeavy Metals in the Gulf of Thailand" (Bangkok, ChulalongkornUniversity Press, 1988) p.523 Hungspreugs, M., "Marine Pollution by Heavy Metals in theEast Asian Seas Region" in Dahl, A.L. and Carew-Reid, "Environmentand Resources in the Pacific" (Geneva, UNEP Regional Seas Reportand Studies, 1986) at 239-248.24 Ibid.25 Chung, S.P., "Pollution of Water by Hydrocarbons and HeavyMetals Around Singapore" in Hew, C.S. et al, "Proceedings on 12thSymposium on Our Environment" at 276-93.6industry, and public health programs in this region, butlittle is known of their distribution and impact. 26 Theamount of pesticides and herbicides used in this region hasincreased in recent decades. In the major rivers of thePhillipines, 76 percent of the samples contain pesticideconcentrations exceeding acceptable standards. 27 The DDTrange in the rivers of Thailand is 0.1 to 3.4 parts perbillion, and organochlorines have been found in five majorrivers in Thailand. There is a higher level of DDT residue inthe Gulf of Thailand than in the Andaman Sea due to the largerand more agriculturally developed watersheds draining into thegulf. 28B. Factors that Cause Land-Based Marine Pollution Problems inSoutheast AsiaSoutheast Asia is a region with high complexity ofsocial-economic factors as well as unique bio-physicalformations. The following is an overview on the differentnatural and social factors which contribute to land-basedmarine pollution in Southeast Asia.26 Siriruttanachai, S., "Accumulation of DDT, PCB in the lifein 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 CertainHeavy Metals in the Gulf of Thailand" Bangkok, ChulalongkornUniversity Press, 1989) p.7.71. Biological Factors:a. Climatic FactorsSoutheast Asia lies across tropical and sub-tropicalareas. The climate is divided into rain and dry seasons. Highannual temperature, high humidity, and the concentration ofhigh annual rainfall into definite wet seasons produce deepweathering of soils and varied seasonal flow patterns ofrivers. 29 Tropical rainforests in upland areas are thought tomodify nutrient supplies in coastal areas through hydraulicinfluences and the control of sediment loads carried byrivers. 30 Within areas such as Malaysia, a marked increase inthe seasonality of waterflows is taking place because of theclearance of rainforests in upland areas. 31 With theaggravated clearance of rainforests, sediment loads areincreasing in tropical coastal zones. It has been reportedthat 1.5 million tons of additional sedimentation has causedthe shrinkage of fishing grounds in Thailand. 32 The incidenceof coastal flooding during wet seasons and salt intrusion incoastal soils and river systems will increase in accordance29 Wyrtki, K., "Physical Oceanography of the Southeast AsianWaters" (LaJolla, California: Scripps Institute of Oceanography,1981) p.4.3° Ibid.31 Maheswaran, A. & Singham, G., "Environmental Problems inMalaysia" (Kuala Lumpur, Division of Environment, 1986) p.4.32 Piyakarnchana, T. and Mallikamare, S., "EnvironmentalProblems in Thailand" in Kato,I. and Kumamoto, N., "EnvironmentalLaw and Policy in the Pacific Basin Area" (Tokyo, University ofTokyo Press, 1987). at 47-63.8with the seasonal changes in waterflows. 33b. Tolerance of Coastal EcosystemsLittle is known about the tolerance of terrestrial andaquatic ecosystems in this region. The terrestrial and aquaticsystems in Malaysia are termed as "fragile", being susceptibleto degeneration of soil fertility. 34 Tropical aquaticecosystems are noted as being particularly susceptible tothermal pollution. Owing to high water temperatures, mostaquatic organisms are believed to live near lethal limits. 35c. Mangrove Swamp Forests in the RegionA unique feature in the tropical coastal zones in thisregion is the presence of mangrove swamp forests. Mangroveswamps form the dominant land type in the coastal zones ofSoutheast Asian countries. 36 The capacity of mangroves totrap terrigenous sediments is well known. Their ability towithstand high salinity, wind and wave forces allows theirextensive root systems to reduce the velocity of watercirculating about them. This slows down the process of erosionand reduces sediments in coastal waters. However, the velocityof the water in mangrove areas depends upon the quality andquantity of the water coming from the drainage of adjacentm Ibid.34 Supra note 28.m Ibid.36 Hill, R.D. and Bray J.M., "Geography and the Environment inSoutheast Asia" (Hong Kong, University of Hong Kong Press, 1986)p.125.9coast areas. The increase of the sediment load or pollutantssuch as herbicides in coastal water can affect the growth andproduction of coastal mangroves significantly. The loss ofproductivity of mangroves can lead to reduction in the abilityto remove pollutants, or to stabilize sedimentation anderosion. Therefore, the unique mangrove land-form in thisregion is easily subject to the stress from coastal wastes.2. Social-Cultural StressThe countries in Southeast Asia have been registeringhigh annual rates of population growth of three percent, 37which contributes to the pressure on coastal areas. In themetropolitan centres, the rates of population growth have beenmuch higher due to a steady stream of rural to urbanmigrations. The movement of population into the urban centreis a symbol of the lack of employment opportunities and theunderdeveloped conditions of the rural areas. Urbanization isnot necessarily destructive to the environment, but in manyareas, governments have neither prepared for, nor have theybeen able to cope with the problem of population growth andurbanization. The influx of people brings about a lot ofproblems with regard to waste disposal. For example, inMalaysia, only 11.9 percent of the urban population use flushtoilets connected to the sewerage system. Another 44.3 percentof the urban population are using flush toilets connected to37 ASEAN Yearbook, Vol. 1991, p.8.10septic tanks, and 34.7 percent are served with the conservancy(or bucket) system while 9 percent have no facilities. 38 Itwas also reported that only 11.0 percent of the urbanpopulation used facilities connected to community waste-bornesewerage systems by 1990. 39 As most of the major cities inthe region are located in coastal areas, with the increase ofpopulation and urbanization, pollutants from domestic wastesput great pressure on the marine environment.3. Agricultural DevelopmentThe countries in Southeast Asia, except Singapore, havea high productivity in agriculture. The processing ofagricultural products, such as rubber, palm oil, copra, andrice is highly polluting, because agricultural farms normallyemploy a wide selection of pesticides to combat insects andother pests. The agricultural waste effluent is often directlydischarged into open channels, which causes severe watercontamination, including the introduction of toxic materials.4. Industrial DevelopmentThe developing countries in Southeast Asia are in theinitial stage of industrial development. They are not yet ina stage to provide adequate waste treatment devices as well asfacilities. Besides, a considerable part of their industry isbased on agricultural products, such as palm oil mills and38 The Philippines: National Environmental Protection Council,Solid Waste Subsidy Programme Report, 1989.39 Ibid, 1990.11rubber factories, where there is not much available anti-pollution technology.In addition, small industries form an important part ofthe industry of the developing countries in Southeast Asia."There are certain common characteristics of small industriesthat could pose impediments to the environment. Firstly, thesize of a small industry is usually too small to installadequate sewage systems. Secondly, small industries lackadequate technical and financial resources to manage theirwaste disposal systems. Employers and workers may becompletely ignorant or unaware of the various types ofenvironmental effects which may arise from the manufacturingprocesses they are engaged in. The management of suchfactories operates on a shoe-string budget and often cannotafford basic essential services for environmental control.Third, such factories are not inspected as frequently as theyshould be mainly because there are too many of them and theyare often scattered all over the country. It is, therefore,difficult to keep the factories of small industries understrict environmental control. Small industries in SoutheastAsia contribute considerably to industrial wastes in thisregion.Moreover, the increasing investment of industrialized40 Chen, Meng Kin, "Strategies of Industrialization in ASEANCountries" in Saw, Swee-Hock and Lee, Soo Ann, "Economic Problemsand Prospects in ASEAN Countries" Singapore, Singapore UniversityPress, 1987) at 83-101.12countries in Southeast Asia is another reason for theincreasing industrial pollution in this region." Theappetite of the industrialized countries for the continuedsupply in ever-increasing quantities of raw materials requiresintensified efforts to explore and extract new sources ofenergy, mineral, and timber resources. They also needintensified cheap labour forces to supplement their advancedindustries. Besides, industrialized countries where strictenvironmental regulations are in force tend to shift theirinvestment to developing countries where effectiveenvironmental controls are not established. On the other hand,the developing countries in Southeast Asia, in the initialstage of industrial development, need foreign capital tostimulate their development to some extent. Attractive termsare offered to induce foreign industrial investment. There isa big portion of foreign investment in the industries ofSoutheast Asian countries. However, environmental regulationsfor foreign investment are not soundly established and, inmost cases, far from enough.Furthermore, industries in these countries areconcentrated in the coastal area, and most of them are alongrivers. 42 Industrial wastes are carried by rivers and enteredinto marine environment when rivers go into the sea.5. External Pressures4142 Ibid.13The management of marine environmental requires thecommon effort and coordination of coastal states. Because manycoastal resources such as fisheries or oil and minerals areregarded as common property, and because of internal pressuresfrom industrial development and population growth, exclusiveeconomic zones are being adopted to protect the future ofindividual countries. In addition, the need for nationalsecurity and disputes over territorial boundaries can createbarriers to the communication between the coastal states. Suchobstacles, coupled with the lack of scientific information,can lead to a lack of appreciation of the common basis ofproblems of marine environmental managemnet. Unilateralsolutions such as exclusive zones will do little to improvethe exchange of existing information or the development ofcooperative programmes to deal with regional marineenvironmental problems.14CHAPTER II: CURRENT LEGISLATION WITH RESPECTTO MARINE POLLUTION CONTROL IN SOUTHEAST ASIAThere are three perspectives from which to approach themanagement 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 themanagement of the marine environment without taking all threeinto consideration.The countries in Southeast Asia are in the early stagesof their efforts on the management of the marine environment,and they have started to take a series of countermeasuresagainst marine pollution from legal, economic, and scientificperspectives. 1 The legal approach is based on a system ofgeneral and specific laws involving the protection of marineenvironment. The economic approach consists mainly of variousindustrial, agricultural, and municipal projects whichminimize the harmful effects of human activities on the marineenvironment and promote the restoration of the marineecosystems. The scientific approach is conducted through1 For more on the marine environment management in SoutheastAsian countries, see: Jaefar, A.B. & Valencia, M.J., "EnvironmentalManagement of the Malacca/Singapore Straits: Legal andInstitutional Issues" 25 Natural Resources Journal 195; Johnston,D., "Environmental Management in the South China Sea: Legal andInstitutional Developments" in "East-West Environment and PolicyInstitute Research Report"; UNEP, "Draft Action Plan for theProtection and Development of the Marine Environment and CoastalAreas of the Southeast asian Region', Doc.#UNEP/EAS.1 (April,1989).15scientific research on the marine environment and the means tothe protection of marine environment, though the efforts inthis regard have been quite limited in the region. In thischapter, the legal efforts on marine pollution control in fivemajor Southeast Asian countries are examined country bycountry. Special emphasis is put on the existing problemsthese countries are facing in their efforts on marinepollution control in the legal approach.A. General Initiatives of the Region on Pollution Control1. Growing AwarenessAfter a long period of silence, the governments of thecountries in Southeast Asia have now begun to putenvironmental issues on their political agenda. Governmentofficials, relevant interest groups, the media and the publicat large began to address themselves to environmentalconcerns. 22. InstitutionalizationOne of the features of the development in this region'senvironmental protection is the emergence of high level,special government agencies charged with the protection of thestate's land and marine environment and generally authorizedto carry out coordination, policy planning, regulating,2 See: ESCAP, Transnational Corporations and EnvironmentalManagement in Selected Asian and Pacific Developing Countries(Bangkok, 1988).16conservation and promotion. 3 Specifically, in Indonesia, theinstitution in charge is the Ministry of Population and theEnvironment. 4 In Malaysia, the institution is the Ministry ofScience, Technology and Environment. 5 In the Philippines, theinstitution is the Department of Environment and NaturalResources and the National Environmental Protection Council(chaired by the Minister of Human Settlement). 6 In Singapore,the institution is the Ministry of the Environment. ? InThailand, the institution is the National EnvironmentalBoard. 8At the regional level, environmental administration isserved mainly by two international organizations - theEconomic 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" (KualaLumpur: 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 forEnvironmental Control in Malaysia" (Malacca, 1984).6 See: R. Lesaca, "Pollution Control Legislation andExperience in a Developing Country: The Philippines", 18 Journal of Developing Areas 538.7 See: Chia, Lin Sien, "Environmental Pollution - the Searchfor a Solution in Singapore" in R.D.Hill & Jennifer M. Bray,"Proceedings of Symposium on Geography and the Environment ofSoutheast Asia" (Department of Geography, HongKong University,1988).8 See: Jittirat,M., "Government Policy and EnvironmentalConservation" in B. Chulasai & 0. Siriratpiriya, "Our Environment"(Bangkok, 1985).17and the United Nations Environment Program (UNEP). 9A more significant development in the institutionalsetting for environmental management in the region has beenthe formation of sub-regional environmental programs, such asthe ASEAN Environment Program (ASEP) . lo Moreover, there arenon-governmental organizations which, apart from generallypromoting environmental awareness and raising publicconsciousness, have been instrumental in the formation ofnational policies and laws as well as regional agreements."The statutory framework for environmental protection inthe region has also been strengthened substantially, althoughthe scope of the relevant legislation varies considerably fromone country to another. Given the different techniques ofcontrol adopted by the various countries, it is evident thata unified approach to the management of the marine environmentin this region has not evolved. The most common techniquesadopted by these countries are regulatory measures such asregulating discharge standards, which are viewed as a9 For more information about the structure and functions ofUNEP, see Brunnee, Acid Rain and Ozone Layer Depletion:International Law and Regulation 67 (1988).10 The ASEAN Environment Program (ASEP) is a collective effortby Indonesia, Malaysia, the Philippines, Singapore, Thailand andBrunei to rationally manage the natural resources of the regionwith the aim of ensuring sustained economic development. Identifiedpriority ares for co-operative effort are as follows: (1)environmental management including environmental impact assessment,(2) nature conservation and terrestrial eco-system; (3) marineenvironment; (4) industry and environment; (5) environmentaleducation and training, and (6) environmental information.supra note 8, at 10.18practical forms of contro1. 12 In addition, a widely acceptedtechnique in this region is the "polluter-pays-principle"which underlies much of the legislation in the region, takingthe form of user and polluter charges. 13 Other typicalphenomena among the countries in this region are theutilization of incentives as a control technique 14 and theadoption of economic sanctions as enforcement tools. 15However, the countries in this region do not have formalenforcement schemes in the countryside. Citizen participationin surveillance, monitoring or enforcement is not generally12 See: ESCAP, "Status of Environmental Legislation in theESCAP 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 liketax credits on importation of pollution abatement facilities notlocally available, accelerated depreciation allowance on investmentin the control equipment, loans and other assistance program duringa limited period of time may also be used to encourage compliancewith regulatory standards. They are applicable not only between thegovernment and the industry or trade but also between the centraland local government. For example, the central government maysubsidize part of the cost of the installation of sewage treatmentplants for which municipal governments are responsible under thelaw. See ESCAP, "Status of Environmental Legislation in the ESCAPRegion", 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 aneconomic penalty equal. They work by imposing on a company aliability that is directly related to the financial savings whichresult from not complying. For example, a cement manufacturingcompany that fails to install an anti-pollution device worth $1,000becomes liable for an economic penalty of the same amount for thedelay. Id. at 140.19recognized or encouraged. 16Moreover, the countries in this region have not beensuccessful in implementing and enforcing environmentalpolicies. As discussed in the following section, the lack ofimplementation and enforcement is due to various factors,including inadequate financial, technological andadministrative resources, corruptive judicial practice, thelow demand for environmental quality, and the existence ofdifferent interest groups.3. Norm-Creating Regional ActivitiesDespite problems with implementation and enforcement,support has been given to norm-creating activities. The 1978ASEAN Environment Program (ASEP)" generated action plans forthe priority areas of marine environment, nature conservationand environmental education as well as several ministerialdeclarations pledging to protect the marine environment inthis region. 18 The strongest expression of the commitment bythese countries is the 1985 Agreement on the Conservation of 16 See, however, the Philippines PD 1160, which empowersprivate citizens who are village officials to enforce pollutioncontrol and other environmental laws. Id. at 144-45. Currently,more than 50% of industrial pollution reports are made by theseofficials.17 See also supra note 14 (discussing ASEP).18 These declarations include: the 1981 Manila Declaration onthe Environment; the 1984 Bangkok Declaration combined with aDeclaration on Heritage Parks and Resources as well as theResolution on Policy Guidelines for Implementation; and the 1987Manila Summit Declaration.20Nature and Natural Resources," which is considered the mostmodern regional instrument ever adopted in this region on theconservation of marine environment. 20 This agreement closelyreflects the thought of the World Conservation Strategy. 21B. Regional Response to Developments in InternationalEnvironmental Law1. "Sustainable Development"Of particular importance in the Southeast Asiancountries' environmental context is the introduction of thekey concept of "sustainable development", which pertains tothe integration of environmental considerations into thedevelopment planning process so that long-term economicdevelopment is ensured while the quality of life of presentand future generations is preserved and improved. 22Countries in this region have long considered economicdevelopment as a most important goal, and the conflict between19 (1985) 15 Environmental Policy and Law 64.20 Ibid.21 "Note the 1976 Convention on Conservation of Nature in theSouth Pacific" in Kiss, "Selected Multilateral Treaties in theField of the Environment" at 47, 463.22 See generally: World Commission on Environment andDevelopment (WCED), "Our Common Future" (London: Oxford UP, 1987).The WCED's findings and recommendations were endorsed in GeneralAssembly Resolutions 42/186 & 187, Dec. 11, 1987, and a sub-itemwas included in the provisional agenda of the General Assembly'sForty Third Session (1988) entitled "A Long-Term Strategy forEnvironmentally Sound the Sustainable Development." See also WCED,Legal Principles for Environmental Protection and SustainableDevelopment, (1986) 25 I.L.M. 494.21the demands of economic growth and an ecologically-soundenvironment has long existed. 23 However, it is increasinglyrealized in the region, as well as globally, that theirrational use of natural resources and degradation of theenvironment which occur in the process of economic developmentwill in turn impede economic development itself. Hence, in thelong run, the conservation of natural resources andenvironment and the development of economy are notincompatible but mutually reinforcing goals. 24 The 1985Agreement on the Conservation of Nature and Natural Resources 25 among the five ASEAN countries provides in itspreamble that "the relationship between conservation andsocial-economic development implies both that conservation isnecessary to ensure sustainability of development and thatsocial-economic development is necessary for achievement ofconservation on a lasting basis." 26 The same idea isincorporated in another formal document of relevance to theregion, the 1980 Declaration of Environmental Policies andProcedures Relating to Economic Development. 2723 See: Hill, R.D. and Bray, J.M., "Geography and theEnvironment in Southeast Asia" Hong Kong, University of Hong KongPress, 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 Donorsof Development Assistance; the African Development Bank, the ArabBank for Economic Development in Africa, Asian Development Bank,22As a basic principle, states are under an obligation toensure that the conservation of natural resources and theenvironment is treated as an integral part of the planning andimplementation of development activities. The principle wasconfirmed by the five ASEAN states who have undertaken toguarantee, within the framework of their respective municipallaws, that "conservation and management of natural resourcesare treated as an integral part of development planning at allstages and at all levels." 28A general commitment to the principles ofenvironmentally sound and sustainable development in thisregion has also been expressed in Resolution XLIV adopted byESCAP in its April 1988 session, of which all of the countriesin this region are member states. The resolution invitesmember states to "integrate environmental considerations intotheir development policies and programs aimed at contributingto environmentally sound and sustainable development." 29Indonesia, Malaysia and the Philippines have in factincorporated the concept of "sustainable development" intoWorld Bank, Commission of European Communities, Organization ofAmerican States, the U.N. Development Program and the U.N.Environment Programme. The declaration states that "in the long runenvironmental protection and economic and social development arenot only compatible but interdependent and mutually enforcing."Ibid.28 1985 ASEAN Agreement on the conservation of Nature andNatural Resources, Article 2. See (1985) 15 Environmental Policy &Law 64.29 6 ESCAP Environment News 5-6 (April-June 1988).23their constitutions, general legislations or decrees."However, despite this recognition, actual planning linkagesbetween the environment and the development in this region arestill weak. An effective implementation of sustainabledevelopment has not been achieved. It is also apparent that apractical interpretation of the concept varies among countriesin the region, depending largely on their respective level ofsocial and economic development.C. Current Legislation1. Constitutional FoundationThough none of the countries in Southeast Asia provides,in their constitutional law, stipulations which directlyinvolve the control of marine pollution from land-basedsources. However, all of them include provisions whichexpressly recognize the importance of preserving environmentalquality, which constitutes an important prerequisite tosuccessful environmental management, including the control ofland-based marine pollution.It is interesting to take a look at Thailand's recentconstitutional history. The Constitution of 1974 was adocument of some length, and no less than eight of its 238articles dealt specifically with the importance of maintaining30 See: Constitution of Malaysia, Article 23; PhilippineConstitution, Article XV; Philippines, Presidential Decree No.1221.24the nation's environmental integrity. 31 By contrast, the nextConstitution (October 1976) and the present one (the "InterimConstitution" of November 1977), two much shorter documents,contain no substantial reference to environmental protection.But it is clearly indicated that the environmental issue hasbeen treated far more seriously since October 1976 than duringthe preceding two years. 32 Although the MalaysianConstitution does not deal explicitly with environmentalprotection, it has some important implications forenvironmental management. Article 74 of the FederalConstitution provides that marine environment as a statesubject, and any action against the protection of the marineenvironment constitutes the violation of the Constitution. 33The Constitution of the Philippines also contains nodirect 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 notbe permanently alienated. 34 This principle implies thestate's continuing authority to regulate the use of naturalConstitution of Thailand, 1974, Article 238.32 For details of Thailand's recent development onenvironmental protection, see: National Environment Board ofThailand, "Environmental Status of Thailand" (Bangkok, 1988).m Constitution of Malaysia, Ninth Schedule.34 Philippine Constitution, Article XIV, section 8. Exceptedfrom the non-alienation restriction are agricultural, industrial orcommercial, residential, and resettlement lands of the publicdomain.25resources, and it therefore furnishes the legal basis forcomprehensive environmental planning and management.2. General Environmental Laws in Relation to Control of MarinePollutionThe need to cope with the increasing environmentalproblems has brought about a process of integratingenvironmental considerations into the mandate of legislativeauthorities in these countries. The following is an overviewof environmental legislation in the Southeast Asian countries,being considered here with specific emphasis on the control ofmarine pollution from land-based sources.a. MalaysiaEnvironmental consciousness in Malaysia can be said todate as far back as the 1920s when various water enactmentswere passed. 35 There are currently about 34 laws which dealwith the protection of the natural environment in a generalway. 36 The most recent legislation concerning the environmentis the Environmental Quality Act, 1974.As the name implies, this act relates to the prevention,abatement and control of pollution and the enhancement of theenvironment. For the purpose of protecting coastal watersagainst pollution from land, Section 25 is of special35 The earliest environmental enactment in Malaysia was the1920 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).26relevance. Section 25 prohibits, except under license, anyperson from emitting, discharging or depositing any waste intoany waters, directly or indirectly through access to anywater. 37 The prohibition extends to an act of placing anywaste in a position where it falls, descends, drains,evaporates or is washed or blown off or percolates into anywaters. 38The Environmental Quality Act is administered by theDivision of Environment (DOE) within the Ministry of Science,Technology and Environment. 39 The DOE is structured intothree main units, namely the Water Pollution Control Unit, theAir Pollution Unit and the Administration and Co-ordinationUnit. The control of marine pollution from land-based sourcesis within the responsibility of the Water Pollution ControlUnit, under which there are several committees dealingspecifically 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 createdwith the Ministry of Science, Technology and Environment in April1975. The DOE is charged with the responsibility of administeringthe Environmental quality Act. The DOE is headed by the DirectorGeneral of Environmental Quality appointed by the Minister ofScience, Technology and Environment. In addition, an environmentalQuality Council advises the Minister on matters pertaining to theenvironment. The Council has contributed positively to supervisingthe public sector, industry and the scientific community tominimise environmental degradation and the twin task ofenvironmental improvement.40 See: Lee Tien Tien, "Law and the Protection of Environment"(Kuala Lumpur: Faculty of Law, University of Malaya Project Paper,1986) p.25.27and a number of specific regulations in relation to pollutionfrom land-based sources are made to strengthen theEnvironmental Quality Act. These specific regulations will bediscussed in the next section of this chapter.b. SingaporeIn terms of economic development, Singapore is the mostdeveloped country in Southeast Asia and is regarded as anenvironmentally-sensitive country. The most significantattempt made by the government of Singapore to tackle theenvironmental problems is the setting up of the Anti-PollutionUnit under the Prime Minister's Office in 1980. 41 In 1982,the Ministry of the Environment was established to assume theresponsibility of maintaining the general hygiene andsanitation of the country, including the provision of sewagefacilities. 42 Under the administration of the Ministry ofEnvironment, the Environmental Public Health Act was passed in1983, and the Environmental Public Health Regulations werepassed in 1984; the latter focused on the prohibition ondischarge of trade effluent into water courses. 43c. ThailandThe most important law regarding environmentalconservation in Thailand is the Improvement and Conservation41 See: Bhathal, R.S. and Chen, P.S., "The SingaporeEnvironment" (Singapore: University of Singapore Press, 1983) p.13.42 Ibid, p.14.43 Ibid, p.18.28of National Environmental Quality Act (1975) . 44 As a resultof its enactment, the National Environmental Board was set upin order to address environmental problems. 45 The Board'seffectiveness depends very much on voluntary cooperation ofother public agencies although it is empowered to requiregovernment agencies, state enterprises and persons to submitdocuments and data concerning projects or schemes consideredpotentially dangerous to the environment." The Board onlyhas the power to recommend remedial measures to the Council ofMinisters. 47 The usual practice of the Board is to coordinatethe work of different government agencies, state enterprises,and private organizations on matters concerning environmentalquality. 48There are also a number of laws which indirectly dealwith the conservation of the environment. Some of them relateto the control of industrial pollution and others relate tothe prevention of water pollution. 49 However, there is no act44 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 EnvironmentalQuality Act, 1975, Section 6.47 Ibid. Section 14.48 Jittirat, M., "Environmental Conservation Through Laws" inChulasia, B. and Siriratpiriya, 0., "Our Environment" (Bangkok,1988) at 35-37.49 Ibid, p.38.29dealing directly with the prevention of land-based marinepollution.d. The PhilippinesThe Philippines may be considered to have the mostcomprehensive legislation on environmental protection amongthe countries in Southeast Asia. While basic elements ofenvironmental law are contained in the Constitution,"specific environmental enactments are contained in variousPresidential Decrees." The major pieces of legislationinclude(1) The Philippines' Environmental Code contained inP.D. 1152, 1977. Section 4 of the Code deals with wastemanagement, which prohibits undue waste disposa1. 52 The Coderequires a system of environmental education 53 which is ofgreat 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 PollutionControl Commission (NPCC). The NPCC is empowered to promulgateappropriate rules and regulations, with the correspondinglegal sanctions such as imposing penalties, and closing50 See: The Constitutional Act of the Philippines, Article 15,18, 21.51 ^Tolentino, A., "Environmental Law in the Philippines"(Manila, 1987) p.8.52 See: The Philippines National Environmental ProtectionCouncil (NECP), "Philippine Environmental Laws" (Manila, 1981)p.13." Section 8 of the Code. See: Ibid. p.14.30operations of the violators. 54e.IndonesiaThe general environmental legislation in Indonesia is the1982 Basic Decisions on Environmental Management.  The Actcontains detailed provisions concerning the standards ofeffluent disposa1.55 The Act also specifies thatenvironmental development projects, including land-basedmarine pollution control measures, should be accompanied by anenvironmental impact assessment process and be carried out inan orderly manner by appropriate institutions. 563. Specific Legislations on the Control of Land-Based MarinePollutiona. MalaysiaMalaysia has very comprehensive legislative regulationson waste releases from land-based sources. Malaysia'sEnvironmental Duality Act of 1974 is a major piece ofenvironmental legislation regulating releases of wastes fromall sources except those from mining, offshore exploration andexploitation, agriculture, logging, and earthworks. 57 Underthe Act, three sets of waste regulations have been introduced.54 Ibid. p.18.55 See: Articles 15-19 of 1982 Indonesian Basic Decisions onEnvironmental Management in Soegiarto, A., "The Indonesian MarineEnvironment: Its Problem and Management".56 Ibid.57 Malaysian Statutes, Environmental Quality Act (1974).31They are, among others:(1) Environmental Duality Regulations (Crude PalmOil), 1987;(2) Environmental Duality Regulations (Raw Natural Rubber), 1988;(3) Environmental Quality Regulations (Sewage andIndustrial Effluent), 1989.These regulations are directed mainly against pollutionin the form of discharge and emission which come from landsources. Under these regulations, control is achieved throughthe establishment of a criteria to reduce pollutants, and isenforced by both legal and administrative methods. Forexample, according to these regulations, industries mustcomply with the recommended criteria of discharge asstipulated. 58 If unable to meet this demand, an industrialplant may apply for a license to discharge, with fees imposedat the rate of M$100 per metric ton of BOD discharge, andM$100 or M$500 per kilogram for toxic chemicals discharged(depending on the toxicity of the substance) . 59 With theenforcement of these regulations, it is estimated that, in1991, a total of 820 licensed premises and more than 7,000non-licensed premises are subject to these regulatory58 Malaysia: Environmental Quality Regulations, 1977, Section5; Environmental Quality Regulations, Section 4; EnvironmentalQuality Regulations, Section 7.59 Ibid.32measures. 60Waste disposal from mining operations is regulated bystate authorities under the authority of the FederalDepartment of Mines. °The control of silts and sediments due to soil erosionand surface run-off is exercised under four separate laws. TheLand Conservation Act, 62 which has been adopted throughoutpeninsular Malaysia seems to be ineffective so far because itvests broad discretion in state authorities to declare whetheror not a given tract of land should be cleared or planted withshort-term crops. 63 The Local Government Act of 1981" alsohas provisions for the local authorities to prohibit certaindischarges within their areas of jurisdiction. In addition,the Street, Drainage, and the Building Act of 1981 empowersthe authorities to issue city by-laws for the control of siltwashed away because of improper drainage and improper60 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).63 Shane, J., "Legal Aspects of Environmental Management inMalaysia," (United Nations Taskforce on the Human Environment,1987) at 44.64 Malaysian Statutes, Local Government Act of 1981, S 69, 70.33maintenance of streets. 65 Proper drainage and frequentmaintenance of logging tracks are some of the practicerequired in accordance with various forests enactmentsenforced by respective state authorities." Also, inaccordance with the Waters Enactment of 1982, stateauthorities can alienate sufficient riparian reserves toprevent inroads of silt into receiving streams and rivers. 67The Pesticides Act of 1980 regulates on the importing,manufacturing, selling, and storing of pesticides," but hasno provision on the use of pesticides. In practice, thevarious state authorities can prohibit the use of certainpesticides which directly affect the use of any inland waters,subterranean water resources, and any water in an estuary orsea adjacent to the coast of their respective jurisdictions.For instance, the State of Perak has banned the use of sodiumarsenite as a herbicide. 69The disposal of radioactive waste is not totallyprohibited under the regulations on sewage and industrial65 Jaafar & Valencia, "Marine Pollution: National Responses andTransnational Issues" in Kent & Valencia, "Marine Policy inSoutheast Asia" (Berkely, University of California Press, 1986) at17." Ibid.67 Malaysia: Waters Enactment, 1982, Article 15.68 Malaysian Statutes, Pesticides Act (1980), Article 16-19.69 Jaafar & Valencia, "Marine Pollution: National Responses andTransnational Issues" in Kent & Valencia, "Marine Policy inSoutheast Asia" (Berkeley, University of California Press, 1986) at20.34effluent because its limits are yet to be specified by theminister in charge of the environment. 70 Under theRadioactive Substances Act, however, the Minister of Health isthe authority in charge of regulating most aspects of themanufacture, storage, sale, and use of radioactive substancesand the safe disposal of radioactive wastes. 71b. SingaporeSingapore has the most effective measures in the regionfor regulating wastes that reach the marine environment. 72Water pollution control in Singapore is achieved with theprovisions on sewerage and sewage treatment works, and on thepretreatment of trade and industrial wastes to prescribedstandards before discharge into sewers or water courses. 73The sewage treatment program is illustrative. By 1987, 87percent of Singapore's population of two million had beenserved by sewers. 74 The sewage is treated by the testingworks under the Sewage Department before discharged into thesea. 75 Some portions of the effluent from the Ulu Pandan70 Malaysian Statutes, Environmental Quality Act (1974).71 Malaysia: Radioactive Substances Act, 1980, Article 11.72 Jaafar & Valencia, "Marine Pollution: National Responses andTransnational Issues" in Kent & Valencia, "Marine Policy inSoutheast Asia" (Berkeley, University of California Press, 1986) at21.m Ibid, at 22.A Science Council of Singapore, Environment Protection inSingapore: A Handbook (1990) at 16.Ibid, at 20.35Treatment Works is further tested by the Jurong IndustrialWorks to provide a supply of industrial processing water tocertain factories in the Jurong industrial area. 76 Thedepartment also encourages the siting of new factories inareas where public sewers are available to receive effluentfrom the factories because it is less costly to discharge intopublic sewers than directly into watercourses."Besides, in 1980, the Prevention of Pollution of the SeaAct was passed. This Act emphasizes the control of oilpollution by dumping. 78 The provisions regarding land-basedmarine pollution are as follows: Any discharge of oil ormixtures containing oil into local waters from any place onland is a criminal offense. 79 The offense is one of strictliability in which there is no need to establish fault,although the Act itself provides for several defence to theoffender. 80Administered by the Ministry of Environment, the Local Environmental Integration Regulations  were passed in 1980, andthe Environmental Public Health Regulations were passed in1981. These two acts were combined into the Trade Effluent76 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 18.36Regulations of 1986 which was made under the Water PollutionControl And Drainage Act of 1985. These regulations providethat all land-based sources of marine pollution, such as tradeeffluent, domestic sewage and sullage waste water, should becollected by an extensive network of sewers and be conveyed tosewage treatment works for treatment before discharged intothe sea. 81In Singapore, the amount of waste from land-basedsources which finally reaches the sea is regulated by theDirector of Water Pollution Control and Drainage of the SewageDepartment. A maximum fine of S$6,000 may be imposed for thedischarge of industrial effluent or sewage into a watercoursewhich does not meet the minimum standard of quality specifiedin the Trade Effluent Regulations of 1986. 82 Also, thedischarged effluent must not contain pesticides or radioactivematerials .83c. ThailandAs pointed out earlier, environmental protection measuresin Thailand are enacted under various acts. In general, thereare over fifty acts and regulations applicable to theprotection of the environment." These laws are intended to81 Singapore: Trade Effluent Regulations (1986), Articles 7,8.82 Singapore: Trade Effluent Regulations, 1986, Article 11.83 Ibid, Article 13.84 See: National Environment Board of Thailand, "EnvironmentalStatus of Thailand" (Bangkok, 1989) p.14.37safeguard public health and to promote clean surroundings.However, there is no specific legislation on the control ofmarine pollution from land-based sources. 85d. The PhilippinesAs stated above, the National Pollution ControlCommission (NPCC) is in charge of the waste management in thePhilippines. NPCC has stipulated several regulations and setseveral programmes associated with industrial pollutioncontrol and waste disposal. 86e. IndonesiaThe first step taken by the Indonesian government inrelation to the control of wastes from land-based sources in1986 with the issuance of regulations regarding use of waterresources, which encompassed the disposal of industrial wastesin public streams." Other relevant laws 88 provide managementmeasures, such as the disposal of harmful wastes, andelimination of harmful wastes from established industries. 89The control of pollution in Indonesia is under the8586 See: National Pollution Control Commission, "Annual Reports,1982-1990" and "Current Environmental Situation" (Manial, 1987).87 ^WATERREGLEMENT (PERATURAN PERAIRAN UMUM, 1986) DatSTABLE 1986 No. 489; 1989 No. 98.88 The Nuisance Ordinance (1986) and its Amendment (1988), andthe Safety Law No. 1 of 1990. See Karimoeddin, National Report ofIndonesia in Dielenstein, D., "One World Only: Industrializationand Environment" at 19.8938general umbrella of the Basic Decisions on Environmental Management Act of 1981. 9° There have been no detailedregulations concerning the control of land-based marinepollution. 91Although legislative standards have not been fullydeveloped, Indonesia has adopted other measures to handle thedisposal of human wastes. Except in Bandung, Jogjakarta, andMedan, which all have waste treatment plans and sewage systemsin certain parts of the cities, septic tanks connected toseepage pits are used widely in most urban areas. 92Additionally, the Department of Industry, in cooperation withthe Department of Health, uses established technicalguidelines to evaluate alternative waste disposal systems forindustrial wastes. 93 Pesticides are comprehensively regulatedin Indonesia. 9490 Karimoeddin, E., "National Report of Indonesia" inDielenstein, 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" inDielenstein, D., "One World: Industrialization and Environment" at25.94 Presidential Decree No. 7, 1983, concerning regulation ofdistribution, storage, and use of pesticides; Directive from theMinister of Agriculture No.429/Kpts/Um/9/1983 concerning conditionsfor pesticides packaging and labelling; Directive from the Ministerof Agriculture No. 437/Kpts/Um/11/1985 concerning registration andapproval^of pesticide^use;^Directive^from the^Minister ofAgriculture No.125/Kpts/Um/4/1985^concerning registration andapproval^of pesticide^use;^Directive^from the^Minister of39Indonesia has not developed enforcement regulations tomake its existing environmental laws effective. 95 The lack ofany follow-up of its environmental laws, despite the fact thatthere have been some efforts to formulate rules and standards,is quite understandable. The government of Indonesia has notchanged its long-time position that the environmental problemscaused by poverty are not less acute and certainly are morewidespread than the environmental problems caused byaffluence. 96 For this reason, there is no central governmentagency that is wholly responsible for pollution control. Sincethe establishment of the Ministry of State for DevelopmentSupervision and Environment in 1978, 97 there have been someefforts to integrate the environmental element into thecountry's social-economic development strategy. 98Unfortunately, the power of this ministry is limited to thecoordination of environment-related activities and theformulation of general environmental policy and guidelines.Agriculture No.201/Kpts/MP/5/1985 concerning directory of officesregulating distribution, storage, and use of pesticides.95 Jaafar & Valencia, "Marine Pollution: National andTransnational Issues" in Kent & Valencia, "Marine Policy inSoutheast Asia" (Berkeley, University of California Press, 1986) at28.96 Karimoeddin, E., "National Report of Indonesia" inDielenstein, D., "One World: Industrialization and Environment" at11.97 Renamed the Ministry of State for Population and Environmentin 1984. Ibid, at 17.98 Ibid.40Regulatory powers are still in the hands of sectoralagencies. 99B. Problems on the Control of Land-Based Marine Pollution inSoutheast Asian CountriesAs indicated above, the number of legislation on thecontrol of land-based marine pollution in Southeast Asiancountries is quite limited. Due to the special social-economicsituations in these countries, the legislation has manyshortcomings. Moreover, existence of legislation is one thing,and enforcement of that legislation is another. In this partof the Chapter, analysis is focused on the legislative factorsas well as the social factors that have weakened theenforcement of the legislation on the control of land-basedmarine pollution.1. The Separation of Legal Rights and Responsibilities AmongDifferent Levels of Government AgenciesA basic issue on the analysis of the enforcement of lawrelates to the division of environmental responsibilitiesamong governmental agencies: Which agencies are currentlyexercising environmental responsibilities? Are theresponsibilities adequately coordinated? Are there separation,overlapping, or jurisdictional conflicts between different99 For example, the Department of Industry, the Department ofPublic Works, Energy and Electricity, the Department ofAgriculture, the Department of Transport, the Department of Mining,and the Department of Public Health. Ibid, at 31.41agencies?Southeast Asian countries have adopted differentapproaches to the organization of their respective pollutioncontrol efforts. But in terms of pollution control agencies,their common problem is the lack of co-ordination betweenpollution control agencies. 100 This is illustrated by theexamples of Malaysia and Thailand.Being a federal state, Malaysia has a central or federalgovernment and thirteen state governments. 101 Within eachstate there is a third level of government which embracesagencies generally referred to as local authorities. 102 Thepowers of the federal and the state agencies are set out inPart VI of the Federal Constitution. Of particular relevanceto environmental issues is Article 74 which deals with thelegislative competence of the Federal Parliament and that ofthe state legislatures. 103 Under this provision, there is aFederal List which contains matters with respect to whichstate legislatures may make laws. 104 Enforcement of theregulations relating to water and the coastal environment fall100 Jittirat, M., "Environmental Conservation Through Laws" inChulasia, 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.42within the powers of individual states while the enactment ofthese regulations are within the power of federalgovernment. 105 Complications may arise if a federalregulation is not adopted by the state authority, or aregulation at a state authority level may be considered voidif it contradicts a federal enactment which may not beentirely within the same subject.Moreover, some of the legislation lacks a cleardefinition of the enforcement agency, or a clear hierarchy ofthe enforcement agencies. For example, the Environmental Ouality Act of 1974 created the agency of the Division ofEnvironment (DOE) under the Ministry of Science, Technologyand the Environment. 106 The DOE is primarily responsible forpollution control, 107 while every state government is alsoresponsible for pollution control. The Director General of theDOE is required to advise the minister on environmental policymatters. 108 But no clear authority for coordinating suchauthority is established in the Act.In Thailand, pollution control responsibility is vestedin the Ministry of Public Health by the Public Health Act. 109On the other hand, the Public Health Act also vests broad105 Ibid.106 Malaysia: Environmental Quality Act, 1974, Article 15.107 Ibid.108 Ibid.109 Thailand: Public Health Act, 1984, Article 16.43powers in local authorities to regulate pollution of all kindswithin their jurisdictional boundaries. 110 There is no clearstipulation in the Act on the division of specificresponsibilities on pollution control between the Ministriesand local authorities. Moreover, the Promotion andConservation of National Environmental Quality Act of 1985established a National Environment Board in the Office of thePrime Minister."' It is also charged with the responsibilityof taking appropriate measures on the control of pollution onboth national and local levels ,112 The overlapping of powerson pollution control among the Board, the Ministries and thelocal authorities leads to a lack of real authority for any ofthe three different levels of agencies.2. Lack of Environmental Quality and Waste Disposal Standardsin the LegislationFrom the legal point of view, codified standards forenvironmental quality and waste disposal are prerequisite tothe control of pollution. However, owing to the lack ofspecific standards, most of the legislation in the SoutheastAsian countries sets forth vague objectives which leaveexcessive discretion in the hands of the administrators. For110 Ibid, Article 21.111 Thailand: Promotion and Conservation of Environmental Duality Act (1985), Section 3.112 Ibid.44example, it is insufficient for a state to set forthregulations merely to prohibit discharges that "cause a dangerto the public", "3 because such a provision does not tell adischarger whether he is obeying or disobeying the law. Undersuch a provision, there is always a possibility that a courtmay disagree with what has been determined by theadministrator as a violation. As a result, the law does notensure any restriction on the polluter's behaviour. Moreover,it often happens in practice that, the victim of a pollutionnegotiates with the polluter to get compensation instead ofbringing the case to court, in the latter case, he may not beable to get damages because there is not a specific standardon the subject of the pollution and the polluter may beacquitted. 114 In such cases, the polluter will not bepunished by law and thus the legislation in this respect isineffective.3. Foreign . Model of LegislationBefore World War II, most of the countries in SoutheastAsia were colonies. As a result, the legal systems of theirformer colonial masters have exerted great influence on theirlegal systems. For example, the legal system in the113 For example, see: Malaysia, Environmental Ouality Act,1974, Article 6.114 Jaafar & Valencia, "Marine Pollution: National andTransnational Issues" in Kent & Valencia, "Marine Policy inSoutheast Asia" (Berkeley, University of California Press, 1986) at29.45Philippines is based on American law, while Indonesia hasDutch law, and Singapore and Malaysia have British law as thebasis of their legal systems. Only Thailand has its ownoriginal legal system because it has long been an independentcountry. Under this pattern, the laws regarding pollutioncontrol in these countries are usually based on foreignmodels. For example, based on the British law model, theEnvironmental Quality Act of Malaysia (1974) provides a"licensing system" for pollutant dischargers. 115 But inpractice, since Malaysia is a developing country whoseeconomic development is based on small industries andagriculture-related industries such as palm-oil production, itwould be difficult to establish an organized licence system asin Britain because it would be difficult for small industriesto adjust themselves to superior management, and becauseagricultural-related industries are often situated in thecountryside where organizational management is hard tooperate. Moreover, public opinion toward environmentalprotection in Malaysia is not as concerned as in Britain, andconsequently it is hard to enforce the "licence system" in asociety where there is not much environmental concern.Moreover, there is a lack of government officers who arededicated to the control of pollution in Malaysia, and it ishence difficult to achieve the effective management of a"licence system".115 Malaysia: Environmental Ouality Act (1974), Article 15.46Another example of the inappropriate adoption of foreignlegal models is the borrowing of stringent regulations fromdeveloped countries without adjusting to local situations. Thelegislation on pollution control in these countries tends toset strict yet general provisions which were borrowed fromforeign laws without adjustment to local social-economicsituations. But because of the lack of public consciousnessand the lack of available technology and trained staff, theborrowed regulations can not be effectively enforced inpractice and therefore become nothing more than words onpaper. In this regard, the laws in relation to land-basedmarine pollution in these countries are of questionablesuitability to the political, economic and cultural realitiesof these countries . 1164. Lack of Officers Who Are Charged With the Responsibilityfor the Control of Land-Based Marine PollutionBeing new in the field of environmental protection, thecountries in Southeast Asia are seriously hampered by the lackof officers. The number of government officials in charge ofthe execution of the laws is extremely small. In Malaysia, forexample, there were only nine officers in the EnvironmentalDivision of the Ministry of Science, Technology andEnvironment to be responsible for the enforcement of the116 See general: Sand, "Environmental Legislation: SomeProblems Associated with the Use of Foreign Advisors in DevelopingCountries" (Colorado: Water Resources Publications, 1988) at 14.47Environmental Quality Act in 1985. 117 It would be literallyimpossible for nine officers to combat pollution created by 12million people, 2,500 industries, and 35,000 corporations. 118Furthermore, these officials are working in the centralgovernment, and in many cases there is no one in charge ofenvironmental laws in local regions. 119In regard to pollution control administration, there isalways an insufficient supply of instruments and devicesrequired for measuring the degree of environmentalpollution. 120 Therefore, even if the control standard of thepollution is specified at a certain point, because of the lackof measuring instrument, the supervising officers are unableto detect accurately the degree of pollution that is emittedfrom a factory or farm. Under these circumstances, there isvirtually no effective enforcement of the pollution controllegislation.5. The Role of AttorneysTo examine the problems of the enforcement of the law indeveloping countries, it is particularly important to study117 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 theMarine Environment and Coastal Areas of the Southeast Asian Region"(Doc#UNEP/EAS.1, April, 1989) at 13.48the role of lawyers. In Western countries, lawyers areaccustomed to a governmental decision-making process that ischaracterized by rigorous procedures, and there is anabundance of lawyers within government agencies whichevidences the highly legalised nature of society. Thecountries in Southeast Asia, like other developing countries,have not developed what might be called an "environmentaljurisprudence". Very few indigenous lawyers have been trainedfor maintaining environmental quality, and thereforerelatively few efforts have been addressed by lawyers to thelegislative and administrative innovations on pollutioncontro1. 121 Moreover, government workers do not normallyperceive the issues in front of them as legal issues. 122Questions are seldom asked about a decision-maker's scope ofenvironmental authority, about the meaning of a particularstatutory phrase, or about innovative uses of existingregulatory powers. 123 As the role of legal profession inenvironmental management is very limited, the enforcement ofthe environmental legislation is hampered.In Malaysia, for example, many Ministries have no in-house attorneys at all or, at best a single legal advisor for121 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.49all departments. 124 More often than not, a governmentdepartment must call upon the Ministry of Justice to assign anattorney when it needs legal advice. 125 The Ministry ofJustice is understaffed, which means that there is a need forlawyers. 126 The fact that most decision-makers do not haveaccess to the aggressive, creative legal interpretation thatflows from an established lawyer-client relationship is asignificant constraint on the implementation of environmentallegislation in Malaysia.Government agencies in the Philippines and Thailand docommonly include in-house legal departments, 127 but theirimpact on programme management varies in degree. Because thePhilippines has a fair number of lawyers in its civil serviceand because the legal profession is well esteemed in thiscountry, there is a predictable emphasis on the need for legalcounsel in the decision-making process of the Philippinegovernment, but there have not been enough trained legalprofessionals ready for that purpose. 128 In Thailand,however, where the legal profession is less revered and wherethere are fewer attorneys in government, lawyers have played124 Ibid, at 23.125 Ibid.126 Ibid.127 See: Jittirat, M. "Government Policy and EnvironmentalConservation" (Bangkok, 1988). at 15; Tolentino, A., "EnvironmentalLaws in the Philippines" (Manila, 1988) at 21.128 Ibid, Tolentino, at 22.50only a minimal role in the field of environmentalmanagement. 1296. Nature of LiabilityOne of the major issues in examining the legal system ofa society is the question of the nature of liability. Thisquestion is related to the existing litigation procedures. Asfar as the nature of liability is concerned, the existinglegal systems in the countries in Southeast Asia apply thetortious liability. 13° In other words, in these countries,the plaintiff bears the burden of proof as to the fault of thepolluter, and also has to prove the causal relation betweenthe damage he suffers and the polluter's fault. In the case ofcoastal water pollution from land-based sources, the offendingparty may not be identifiable or identification of thepolluter may be very difficult. For example, if the river hasbeen polluted by industrial waste water and there are manyfactories situated nearby, it is a matter of speculation as towhich factory the charge should be brought against. In suchinstances, it is hard for the victim to discharge the burdenof proof as to the fault of the polluter and to prove thecausal relationship between the damage the injured partysuffers and the offending party's fault, and if the plaintifffails to prove it , then he will not succeed in his action to129 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 20.51recover his damages. Moreover, in some cases of land-basedmarine pollution, since the damages are done to the marineenvironment at large, there is the question of who would bringthe charge. The required burden of proof on the plaintiffmakes it more difficult for a party to bring a charge on land-based marine pollution.For example, in Thailand, the provision concerning thenature of liability in the case of pollution cases is Section420 of the Civil Code which provides that any person causingdamage wilfully or negligently is considered to have committeda wrongful act and is required to make compensation for suchan act. 131 However, the injured person has to bear theburden of proof in convincing the court that he is damaged bythe wrongdoer's commission or omission and has to establishwhether the wrongdoer has acted wilfully or negligently. 132If the injured person can not provide convincing proof, thewrongdoer may be exempted from the charge.In this regard, it is advised that, since pollution isharmful to the general benefit of the public, pollutionoffence are public welfare offence or regulatory offence,therefore, the principle of strict liability should apply.This may require some change in the legislation in thisregard.It should also be pointed out that there is no provision131 Thailand: Civil Code, Section 420.132 Ibid.52in the laws of these countries clearly providing remedies forthe injured party suffering from toxic chemicals. Though theinjured parties are entitled to compensation by virtue of theprovisions specified in the laws concerning "wrongful acts",they can get compensation only when the party deemed to becommitting such a wrongful act can be clearly identified, andsince it is hard to identify the offending party or parties inthe case of land-based marine pollution, the injured canhardly be sufficiently compensated by virtue of laws.7. Attitudes Towards LawTo a great extent, the success of any attempt to improvea nation's environmental legislation depends on the people'sattitudes towards law and law enforcement. It makes a bigdifference whether the society in question is traditionally arule-conscious society. If it is a rule-conscious society, arethe rules based on legal rules or are they based on custom andmoral tradition? How many systems of law - customary, common,or statutory - are in operation at the same time? Are theresignificant points of divergence between traditional legalprinciples and the newly developed legal norms which willprobably form part of the basis for the new approachesrequired for effective environmental regulation? What specialconsiderations bear on the application of new national laws tominority ethnic groups within the country? What role do courts53play in the regulation of private conduct by the government?Thailand, for example, has traditionally displayed a"laissez faire" attitude towards law and regulations. 133 Pastefforts to control industrial pollution have demonstrated thatbusiness in Thailand tends to be naturally resistant to theimposition of new regulatory controls. As a result, theregulations of environmentally significant activities inThailand have traditionally relied more heavily on negotiationthan on strict, inflexible enforcement. 134 Officialscurrently charged with pollution control responsibilities aremore comfortable with the discretion they presently enjoy thanwith a more strict and specific responsibility. 135 Therefore,modern legislation in such a society can not be satisfactorilyenforced, at least in the short term.The situations in the other countries in this regionappear to be different. As a result of their long-termexperience with Western legal systems, people in thesecountries are more likely to accept rigorous administrative133 "Laissez Faire" in Thai means "negotiable" or "soft". Sincelegal regulations were traditionally from decrees, the nature oflaw was traditionally regarded as something negotiable. See:Jittirat, M., "Government Policy and Environmental Conservation"(Bangkok, 1988) at 27.134 National Environment Board of Thailand, "EnvironmentalStatus of Thailand" (Bangkok, 1988). p.23.135 Ibid.54requirements than people in Thailand, 136 and mandatorypenalties might therefore produce results in these countries,which they might not produce in Thailand. However, generallyspeaking, public attitudes toward law and law enforcement inthe countries in this region are still far from satisfactoryin order to ensure an effective legal system. 1378. Other Legislative ProblemsTo assess the current state of environmental legislationsin Southeast Asia, it is necessary to consider the social andeconomic implications of these laws.It is commonly acknowledged that, for example,population, industrial organizations, food quality, and waterresources lie at the root of the challenge of land-basedmarine pollution. 138 Therefore, the considerations forlegislation in the fields of population, industrial relations,product quality and water resources should be included in thelegislation and enforcement of the control of land-basedmarine pollution. Since the existing problems in the social-economic sectors of the societies of the countries inSoutheast Asia, the effective legal control of land-based136 See: UNEP, "The Public Aspects of Environmental Legislationin ASEAN Countries" (Bangkok: UNEP Regional Office for Asia and thePacific, 1982) p.21.137 Ibid.138 See: Kiss, A.C., "The International Protection of theEnvironment" in MacDonald, R.J. and Johnston, D.M., "The Structureof International Law" (The Hague, Martinus Nijhoff, 1983) at 54.55marine pollution will depend considerably on the improvementof relevant social-economic sectors of the society.9. Lack of Sufficient Environmental Impact AssessmentEnvironmental impact assessment is important because thelack of environmental impact assessment often leads to theabsence of necessary environmental planning procedures andmandatory environmental quality maintaining procedures.Without these procedures, the environment would still be inserious danger even if environmental laws are in force.In Southeast Asia, only the Philippines has adopted acomprehensive environmental impact assessment requirement. 139The law of the Philippines requires that a detailed statementon the environmental effects of a proposed project accompanythe proposal through the approval process. 140 Relevantgovernment agencies are given an opportunity to comment on theproject, and the comments are carefully considered beforearriving at the final decision. 141 However, the statue itselfdoes not require public participation in this process. 142In Malaysia and Thailand, there has been no comprehensivelegislation on environmental impact assessment, but thegroundwork is already in place for the establishment of139 UNEP, "The Use of Environmental Impact Assessment forDevelopment project Planning in ASEAN Countries" (Bangkok: UNEPRegional Office for Asia and the Pacific, 1990) p.8.140 The Philippines: Pollution Control Act, 1981, Article 11.141 Ibid.142 Ibid.56limited environmental impact assessment procedures. Malaysia'sTown and Country Planning Act, 1985, sets forth that every newproject should be accompanied by a justification of itsenvironmental impact. 143 Similarly, the Environmental OualityAct, 1974, authorizes the Director General of EnvironmentalQuality to specify the information to be concluded in theapplications from the Division of Environment, 144 thusfurnishing the statutory authority for requiring environmentalimpact assessment in connection with new industrialfacilities. In Thailand, the National Environment Board hasthe apparent legal authority to compel the production ofinformation about the environmental consequences of anyactivity, 145 but does not furnish the Board with authority toissue regulations. Thus no systematic requirements onenvironmental impact assessment are ordered on a compulsorybasis.From the above, it is obvious that as the environmentalchallenges confronting the Southeast Asian countries becomemore and more palpable, the need for an effective response isbecoming increasingly important. In the case of control ofmarine pollution from land-based sources, initial efforts have143 Malaysia: Town and Country Planning Act (1985), Article 17.144 Malaysia: Environmental Quality Act (1974), Article 21.145 Thailand National Environment Board, "Manual of Guidelinesfor the Preparation of Environmental Impact Assessment" (Bangkok,1988).57been made on the legislation on this subject.On the other hand, a lot of work needs to be done in thisrespect. The region needs new legal instruments at thenational and regional levels; it needs new institutionalarrangements; it needs new appropriate regulations; it needsa cadre of well-trained environmental lawyers and officers; itneeds an increase in public environmental consciousness. Inshort, the Southeast Asian countries require new and moreeffective legal machinery for the management of their coastalenvironment. The following chapters suggest a possible agendafor fulfilling these critical requirements.58CHAPTER III: A COMPARATIVE STUDY ON THE TOPICOF LAND-BASED MARINE POLLUTION CONTROL BETWEENDEVELOPED COUNTRIES AND DEVELOPING COUNTRIESDeveloping countries can learn from the experience ofdeveloped countries in dealing with the environmental problemsassociated with the process of their social-economicdevelopment. They may be able to adopt the appropriatemeasures worked out by the developed countries in similarcircumstances in their earlier development. Therefore, it ishelpful for the countries in Southeast Asia to learn ideas,techniques, and operational systems from western countries inthe development of their own environmental control system.A. Major Legal Issues in the Experience of Developed Countrieson Land-Based Marine Pollution Control1. The Social-Economic Dimensions of the Laws Concerning Land-Based Marine Pollution Controla. Economic DimensionsAs an activity, pollution abatement does not producematerial goods. It makes no contribution to the Gross NationalProduct. On the contrary, it involves the expenditure of moneyand other resources, which will eventually be paid by thesociety and thus may slow down economic growth in one way oranother. 11 Kildow, J.T., "Political and Economic Dimensions of Land-Based Marine Pollution" in Charney, J.I., "The New Nationalism andthe Use of Common Space" (1987, 2d) at 70.59The "polluter pays principle" has been widely discussedby economists and has been accepted in many industrializedcountries. 2 The OECD describes it as follows:"This principle means that the polluter should bear theexpenses of carrying out measures decided by publicauthorities to ensure that the environment is in an acceptablestate. In other words, the cost of these measures should bereflected in the cost of goods and services which causepollution in production and/or consumption." 3 Pollutionabatement costs will be passed on to the consumer, who shiftshis money from other uses to pay the increased price. As aresult, purchasing power for other commodities is reduced orconsumers are induced to turn to cheaper products assubstitutes. Manufacturers may have to consider a shrinkingmarket, which means reduced production. When reducedproduction reaches the point at which no profit can be made,the manufacturer either moves the plant to a new locationwhere pollution control requirements are less stringent, suchas in developing nations with more relaxed environmentalregulations, or shifts production to other products. 4 Ineither case, there will be transition costs which will be2 Ibid, at 73.3^OECD Environment Committee:^"Guiding PrinciplesConcerning the International Economic Aspects ofEnvironmental Policies" OECD Doc. C(88), 1988 at 128.4 Ibid, at 76.60reflected in the price of the new product. If the price riseis significant, and the market is relatively elastic,production will go down, causing unemployment and otherdislocations in the industry directly involved and in otherdependent businesses. 5Internationally, the price increase will reduce theinternational competitiveness of the product. If the importprice is lower than the price on the domestic market, theproducer may even lose his domestic market. If the industryconcerned is threatened because of the stringency of nationalpollution abatement policies, it may move out of the country.The flow of capital to other countries may seriously reducethe productivity of the former home state and directlydecrease the growth of GDP before other new industries areestablished. 6Besides, marine pollution control requires a lot ofresearch as well as adequate facility and personnel. If thecosts for these pre-requisites are paid for by the government,taxes will be increased or public welfare will be cut. 7Since pollution abatement can be expensive, theenforcement of the law on marine pollution control seems to bea tough task because it involves market value.5 Ibid, at 80.6 Tipple, V.K. and Kester, D.R., "Impact of Marine Pollutionon Society" (3d)(New York, 1989) at 11.7 Ibid, 13.61b. Social-Political DimensionsAs relates to government measures on pollution control,the issue of the division of powers within governmentstructures is always raised. Usually, in developed countries,each division of the government is responsible for themanagement and administration of a particular field and haspower to decide policies and strategies. Each is inevitablydrawn into interactions with other departments. 8 Thisrelationship is particularly pervasive as relates to theenvironment because when a specific department or agency hasbeen mandated to deal with environmental issues, with power todecide on strategies and measures, the implementation isfrequently conducted through other departments or agencieswith responsibilities in specialized fields. 9Furthermore, the control of land-based marine pollutionseems to be a local problem. But the question frequentlyarises as to which level of government is responsible for itscontrol." This is especially true when the sources of thepollutants and the affected maritime area are under differentlegal and administrative jurisdictions.The contradictory interests of different social groupspose another problem for the social dimension of land-based8 Ibid. at 25.9 Ibid.1° ^M.W., "A Perspective of Environmental Pollution"(London, 1988) at 55.62marine pollution control." For example, due to the lack ofpublic consciousness, inland manufacturers expect to use themarine environment as a waste disposal site, but fishermenexpect the marine environment to be clean and accessible.Manufacturers hope that production costs will be kept as lowas possible, and consumers want the price of goods kept down;however, consumers also expect the commodities to be clean andsafe. Environmentalists have a special interest in keeping thequality of the environment high, but the general public ismore interested in improving material life. The party in powerwants to maintain its power and position, but it is obliged toseek an acceptable balance between various contradictoryfactors. The opposition parties criticize every mistake of thegovernment, including those related to environmentalprotection. All these groups emphasize their own interests andtheir own side of the picture. 12Policy makers must reconcile these competing interestsand make decisions that will benefit society as a whole. Theproblem is not easy to solve. For example, in maritimeprovinces, the protection of marine resources probably becomesthe major factor in stimulating pollution abatement, but ininland provinces the interests of industry are moreLowe j. and Lewis D., "The Economics of EnvironmentalManagement" (Oxford, 1980) at 8.1263important. 13 These conflicts of interest cause seriousproblems in environmental policy-making, especially in federalstates where the constituent units have certain independentpowers on environmental policy making.2. The Nature of Private LiabilityIn their efforts to cope with marine pollution, differentcountries have different legislation as relates to the natureof liability. 14 As more and more states are taking part ininternational agreements and conventions on environmentalprotection, a uniformed standard is gradually being developedand accepted by international communities: liability is deemedto be engaged not by the nature of the act but by the harmfulconsequences it entails. 15Strict liability is imposed at the international level bytwo types of treaties, namely, those limited to givinginternal effect to treaty provisions and those that imposeresponsibilities on states. 16 The basic principle of strict13 Tipple, v.K. and Kester, D.R., "Impact of Marine Pollutionon society" (New York, 1988) at 13.14 See: Kiss, A.C., "The International Protection of theEnvironment" in MacDonald, R. and Johnston, D.M., "The Structureand Process of International Law" (The Hague: Martinus Nijihoff,1983) p.1080; Boczek, B.A., "International Protection of the BalticSea Environment Against Pollution" 72 American Journal of International Law 80415^"1933 International Convention for the Unification ofCertain Rules Relating to Damage Caused by Aircraft tothird Parties on the Surface." U.S. Department of State:"Foreign Relations of U.S.", at 968-977.16 Johnston, D.M., "Environmental Law of the Sea" (1981) at 81.64liability is that the polluter is prima facie liable unless hecan prove, by a preponderance of evidence, that he is notnegligent in causing the pollution. 17So far there are no treaties imposing strict liability onstates for environmental degradation. However, there areseveral judicial decisions approving strict liability in thisfield. Classical examples, often cited by publicists to provethe existence of strict liability for environmentaldegradation, are the Trail Smelter Arbitration and the LacLanoux Arbitration. 18 The rulings in these two cases providesupport for the idea that a state is responsible for most, ifnot all, activities within its territory and may be heldliable when damage caused to other states reaches thepollution threshold, regardless of whether due diligence hasbeen exercised. 19 In other words, these two cases adopt thestrict liability rule. However, it is premature to concludethat states accept strict or absolute liability in pollutioncases. For example, at the 1972 Stockholm Conference on theHuman Environment, though the countries agreed to acceptresponsibility to prevent extraterritorial damage caused byactivities in their territories, 20 they did not reach17 Ibid.18^"The Trail Smelter Arbitration", UNRIAA, Vol.III, at1965.19^Ibid, at 1980.20 Principle 21.65agreement on the content of the responsibility in the light ofstrict liability. While discussing Principle 22, some statesexpressed recognition for liability only for "negligence of astate, imputable either to inaction or the failure to fulfilspecific commitments." 21 Thus we can conclude that whilethere is a tendency to accept strict liability forenvironmental degradation in principle, the actualestablishment of this principle still depends on particularinternational agreements. The limited number of decisions ofinternational tribunals in this field do not providesufficient evidence for the existence of a customary rule ofinternational law on strict or absolute liability for allenvironmental degradation.3. The Issue of State ResponsibilityLand-based marine pollution is primarily a matter ofdomestic concern. However, because of the special nature ofmarine pollution, the introduction of pollution substances inthe marine environment of one state may cause degradation ofthe marine environment of other states. A matter of domesticconcern thus becomes an international concern. In thesecircumstances, one question of state responsibility arises:under what circumstances and to what extent should the stateof origin be held responsible for the conduct that causes oris likely to cause environmental degradation?According to general international law,^state21^Ibid.66responsibility exists when persons or authorities that can beidentified with the state:(i) have caused pollution by carelessness;(ii) have not exercised sufficient due diligence toprevent or combat pollution by persons within its territories;or(iii) have neglected to take proper measures or tooffer injured persons reasonable possibilities of restitutionand compensation for damage sustained. 22The United Nations International Law Commission hasgeneralized the condition of state responsibility for conductattributable to states under international law whichconstitutes a breach of an international obligation of thestate. 23 The objective condition for the existence of stateresponsibility is that there must be a breach of aninternational obligation, either under customary rules orunder treaty obligations. 24 If the act causing pollution isnot prohibited by international law, there will be no stateresponsibility involved in. In today's world, it is generallyaccepted that a state has a duty to protect and preserve themarine environment. Does this mean that a state will be held22^S. Van Hoogstraten and J.G. Lammers: "International andNational Legal Aspects of Trans-frontier Pollution" (TheNetherland Association for International Law, 1988). at17.23^Article A and S of the Draft Articles on StateResponsibility. Y.B. of ILC, Vol.II, at 133-184.24 Ibid.67responsible for any trans-frontier pollution that sourced fromits territory? Since current international law on this issueis so general that it is not possible to specifically prohibitall acts attributable to pollution. For example, introductionof some substances have not been prohibited by internationallaw, so pollution caused by the introduction of thesesubstances into marine environment will not render the statefrom which the introduction happened liable under currentinternational law.Another requirement for the enforcement of responsibilityon a state is that the persons or authorities that caused ordid the wrongful act must be identified. In the case of land-based marine pollution, because of the complexities of thesources of the pollutants, it is often hard to identify thespecific original offending party or the identification may beuncertain. For example, if a river in country A was pollutedby waste water discharged from many factories situated nearthe river in this country, and the river flew into the coastwater of country B, while another river in country B whichcarried large amounts of wastes from industries in country Balso flew into the same marine environment. In this case, itis difficult to identify who is solely or who are theoffending parties.4. The Issue of Control Measures: Preventive Measures andCompensation MeasuresThere are two legal approaches on the control of marine68pollution: the regulatory approach and the compensationapproach. As a result, control measures on land-based marinepollution include two different kinds of measures: preventivemeasures and compensation measures. 25The primary purpose of preventive measures is to imposereasonable precautions to reduce pollution incidents and tominimize the damages before they occur. 26 Preventive measurescan be developed on a scientific judgement as to precisely howmuch pollution each known source will be permitted tocontribute. The preventive rules and standards can concern notonly the prohibition of potentially harmful activities butalso the promotion of any activities that may help theidentification of potentially harmful activities or theimprovement of the quality of the marine environment. 27The preventive approach has its disadvantages. First ofall, the preventive measures rely heavily on scientificinformation and deeply involve various governmental agenciesconcerned. 28 Therefore, the adoption of preventive rules andstandards may be more difficult than the adoption ofcompensation ones. Second, the enforcement of precautionarymeasures is very difficult, especially when the omission of25 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 MarinePollution from Land-Based Sources" (1985) at 38.69preventive measures does not necessarily cause directdegradation of the marine environment. 29The primary purpose of compensation measures is toprovide compensatory remedies and other forms of relief to thevictims of pollution incidents. 30 The advantage of thisapproach is that it does not depend on an understanding ofcomplex scientific, economic and social problems. 31 Oncedamage is an established fact, the compensation measures canbe fulfilled. However, This approach is consequence-oriented. 32 It relies generally on private litigation toidentify the harm to which they are exposed, to assess thedegree of harm, and to seek specific redress against a nameddefendant. 33 In the case of land-based marine pollution, thebasic prerequisite of a cause-effect relationship can hardlybe established because the sources of pollution are often non-point in nature and the sources are often too widelyscattered. 34 In these circumstances, it is difficult to29 Ibid, at 42.30^Martine Remond-Gouilloud: "Prevention and Control ofMarine Pollution" in D.M. Johnston, ed.: "TheEnvironmental 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 wherethe pollution generating activity takes place can hardlybe specified. For example, agricultural run-off is a non-point source of marine pollution.70attribute injuries to a particular action of a particularpolluter. In addition, even if the polluter can be identifiedand the particular injured person is compensated, the damageto the marine ecosystem is often overlooked since theidentification of the specific potential victims is almostimpossible. As a matter of fact, even if there is a way tocompensate all the injured or the indirectly injured, theliability approach will often appear inadequate because thequality of the environment concerned cannot be completelyrestored once the environmental ecosystem is damaged.Most countries which have a history in land-based marinepollution control have had adequate compensation regulationsin their legislations. 35 Due to the growing awareness ofmarine pollution control and the development of science andtechnology, a lot of countries have already adopted preventivemeasures in their efforts against land-based marine pollutioncontro1. 36 These two legal approaches are not mutuallyexclusive. In practice, both are used to deal with the sametype of marine pollution and can thus complement each35 See: Johnston, D.M. and Enomoto, L.M.G., "RegionalApproaches to the Protection and Conservation of the MarineEnvironment" in Johnston, D.M., "The Environmental Law of the Sea"(Gland, Swizerland, IUCN, 1981) p.339.36 DOSP (Dalhousie Ocean Studies Programme), "Conservation andManagement of the Marine Environment: Responsibility and RequiredInitiatives in Accordance with the 1982 UN Convention on the Law ofthe Sea " (Halifax: DOSP, 1985).71other . 375. The Montreal GuidelinesThe comprehensive approach to the control of land-basedmarine pollution in international law was enriched in theUnited Nations Environmental Program's Montreal Guidelines forthe Protection of the Marine Environment Against Pollutionfrom Land-Based Sources (1985). The Guidelines are to assistgovernments in the process of developing appropriatebilateral, regional and multilateral agreements and nationallegislation for the protection of the marine environmentagainst pollution from land-based sources. 38 The Guidelineswere developed by a UNEP Working Group of Experts andrepresent the first attempt by the international community toaddress this subject at the global level. The Guidelines coverareas such as cooperation to establish rules, criteria,standards and recommended procedures to prevent, reduce andcontrol pollution; 39 scientific and technical cooperation; 4°establishment of programmes for monitoring and datamanagement ; 41 establishment of specially protected areas; 4237 Soni, "Control of Marine Pollution in International Law"(1985) at 53.38 UNEP, Montreal Guidelines for the Protection of the MarineEnvironment Against Pollution From Land-Based Sources (1985),Guidelines 1-9.39 Ibid, Guideline 5.4° Ibid, Guideline 8.41 Ibid, Guideline 11.72and development of control and prevention strategies. 43Under the Montreal Guidelines, control strategies arebased on marine environment quality standards, emissionstandards, and environmental planning, respectively 44 . Thereare three widely accepted activities within the frameworks andstrategies of Montreal Guidelines: environmental impactassessment, 45 the development of water quality criteria,guidelines and standards" and the design of environmentalmonitoring programme. 47Environmental Impact AssessmentThe application of control strategies involves theappropriate use of environmental impact assessment at both thestrategic or regional level and the project or local level.Environmental impact assessment encompasses baseline datacollection, impact prediction, determination of thesignificance of impacts and evaluation. The Guidelinesindicate that studies on the effect of pollution are clearlycritical 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 12.73Control strategies and instruments can only beeffectively implemented if scientific criteria regarding theeffects of contaminants on marine life, combined with waterquality guidelines, reflecting the preferred uses of thereceiving environment, are available. Considerable work hasoccurred internationally on marine water quality guidelines.The environmental protection framework under the Guidelinescontains control strategies requiring marine water qualitystandards or guidelines, eg. the strategies based on use. Suchstandards and strategies are key instruments in the assessmentand control of land-based pollutants, and depend on marineeco-system.Environmental MonitoringMonitoring is a key activity of the frameworks andstrategies under the Guidelines. Monitoring includes surveys(single sets of observations or measurements which will assessthe situation at one particular time) and surveillance(repeated surveys which will indicate changes with time) - inits restricted legal sense, monitoring indicates repeatedobservations or measurements that check whether that which isstudied conforms to an already stated standard.In summary, management of land-based sources ofpollutants must be placed in a comprehensive framework inorder to adequately protect the uses and qualities of marinewaters. A number of national and international agencies such74as UNEP have already produced such frameworks to identify thekey activities, to improve decision making and to bringrelevant jurisdictions and parties together.An important component of all of these frameworks isa reliable understanding of the effects of the substances andwastes discharged to coastal and marine waters. That is tosay, environmental impact assessment and environmental qualityguidelines and standards have a crucial part to play in thechoice and implementation of effective management strategiesand control options.B. What is the Appropriate Type of Legal Structure for theControl of Land-Based Marine Pollution in the DevelopingCountries of Southeast AsiaSince the control of land-based marine pollution is acomplex issue which relates to social-economic compositions ofa society, it is not possible transplant Western models ofenvironmental management without appropriate adaptation tolocal situations. Developing countries will need to innovateand improvise with judicious borrowing from the developedcountries to evolve an appropriate legal regime for thecontrol of land-based marine pollution.1. The Role of Government AgenciesThe developing countries in Southeast Asia have adifferent social-economic foundation from those of thedeveloped countries. They are in the initial stage of economic75development with the aid of foreign investment; theirtechnical and financial capabilities are limited; their socialawareness towards jurisprudence is inadequate. Therefore,these countries should develop their own legal approachestoward marine pollution control.First of all, these countries are in the initial stage ofeconomic development. The majority parts of their industriesare private-owned small manufacturing enterprises. 49 As inthe case of developed countries, these private manufacturersdo not want to pay the high cost of pollution abatement."Besides, the urbanization of coastal areas makes the pollutionproblem more serious. In developed countries, this would havebeen more easily tackled by the self-adjustment of free marketeconomy and the balance of power among different politicalgroups." In the developing countries in this region, becausethe economic development has not reached a high level, thereis no market or political force to restrict the tendencyagainst pollution abatement. 52 In this regard, the governmentshould function as a proper organizational infrastructure anda climate conducive to the development of suitable programmes49 Hill, R.D. and Bray, J.M., "Geography and the Environmentin Southeast Asia" (Hong Kong, University of Hong Kong Press, 1986)at 49.5o51 Oda, Shigeru, "Marine Pollution: Problems and Remedies"(1985) at 78.52 Hassan, R., "Southeast Asia: Society in Transition" (KualaLumpur: Oxford University Press, 1986) at 93.76in individual workplace either individually or collectively.Thus, apart from pertinent legislation on pollution control,governmental organizations play an important role in the legalframework on pollution control of these countries.The role of government in various areas of activitiesshould be clearly thought out and developed to deal with theexisting problems at each stage of industrialization. 53 Theaim must be to gradually move from a simple level to a morehighly technological and sophisticated level in keeping withthe general development of the country. 54 Underemphasise ofthe protection against and prevention of land-based marinepollution may result in a heavier social burden and reductionof skilled and trained manpower, while overemphasis may impededevelopment and foreign investment. A fine balance should beset between the benefits arising from the control of pollutionand the social price the society is prepared to pay. 552. How Stringently Should Environmental Measures be Enforced?This question is clearly tied up with the level ofeconomic development, and with considerations regarding thecost of pollution control and conservation, and theavailability of resources for carrying out environmental work.The countries in Southeast Asia are still in the early" Jaaf & Valencia, "Marine Pollution: National Responses andTransnational Issues" in kent & Valencia, "Marine Policy inSoutheast Asia" (1986) at 113.54 Ibid." Ibid.77stage of economic development. Their financial and technicalcapabilities to deal with pollution control are quite limited.Too stringent control measures may not be feasible because oflimited financial and technical capabilities. Therefore, it isnecessary for them to adopt control measures which arefeasible to take in practice.3. The Necessity of Basic Research and Environmental ImpactAssessmentIn the countries of Southeast Asia, the pressure of arapidly expanding population, industrialization, andincreasing world demand for natural resources has great impacton the environment. Thus environmental issues, especiallyproblems on land-based marine pollution, change quickly inaccordance with social-economic change. 56 It is necessary toconduct relevant basic research and environmental impactassessment by law.In Southeast Asia, only the Philippines has adopted acomprehensive environmental impact assessment requirement. 57The Philippine law requires that a detailed statement on theenvironmental effects of a proposed control measure accompanythe proposal through the approved process. 58 Relevant56 ESCAP, "Transnational Corporation and EnvironmentalManagement" in "Selected Asian and Pacific Developing Countries"(Bangkok, 1988) at 79.57 The Philippines, Presidential Decree No. 1151 (1977),Section 4.58 Ibid.78government agencies are given an opportunity to comment on themeasure, and the comments are carefully considered beforearriving at the final decision. 59Although comprehensive legislation of this kind enactedin the Philippines has not been adopted by the other countriesof Southeast Asia, the groundwork is already in place for theestablishment of limited environmental impact assessmentprocedures in these countries. Malaysia's Town and CountryPlanning Act 60 sets forth environmental protection as anessential element in the land use planning process. The statuecould be used as the basis for ensuring the incorporation ofan environmental analysis in the operation of every newproject. Similarly, the Environmental Quality Act authorizesthe Director General of Environmental Quality to specify theinformation to be included in applications for licences fromthe Division of Environment, m thus furnishing the statutoryauthority for requiring environmental impact assessments inconnection with new industrial facilities. In Thailand, theNational Environment Board has the apparent legal authority tocompel the production of information about the environmentalconsequences of any activity, whether public or private, 6259 Ibid.60^Malaysia, Town and County Planning Act, Article 18.61^Malaysia, Environmental Quality Act, 1974 (L.M., Act127).62^Thailand, Enhancement and Conservation of NationalEnvironmental Quality Act, B.E. 2518 (1975), Sec.6.79but the Act does not furnish the Board with authority to issueregulations. Thus no systematic environmental impactassessment procedures have resulted from the legislation. Theonly environmental impact assessment is ordered on an ad hocbasis, and is undertaken by the board's staff as a specialproject.80CHAPTER IV: PROPOSALS FOR FUTURE DEVELOPMENTON LAND-BASED MARINE POLLUTION CONTROL INSOUTHEAST ASIA FROM LEGAL PERSPECTIVEIn terms of legal efforts on land-based marine pollutioncontrol in the developing countries in Southeast Asia, muchimportant work still needs to be done. This chapter sets fortha broad outline for the sorts of activities which thegovernments of the countries in this region may undertake inorder to create a more adequate legal framework for themanagement of land-based marine pollution.A. Institutional FrameworkOne of the important approaches for the control of land-based marine pollution in is to establish an institutionallocus for the various work that needs to be done. 1 Experiencein the efforts by the Baltic regional sea and the Mediterreanregional sea shows that the establishment of a permanent orquasi-permanent institutional body, which is charged with theresponsibility of evaluating the current state of lawsgoverning land-based marine pollution control, is good for theimplementation of control measures. 2 The forum may help tostimulate and coordinate a government-wide programme for thecontinuing review and amendment of land-based marine pollution1 Okidi, C.O., "Regional Control of Ocean Pollution: Legal andInstitutional Problems and Prospects" (The Netherlands, 1988) at232.2 Ibid, at 235-242.81control legislation in response to rapidly changing needs.As stated earlier, in Thailand, the National EnvironmentBoard has established an advisory committee on environmentallaw which reviews existing and proposed legislation ofenvironmental significance and proposes amendments, newstatutes, and regulations as needed. 3 In Malaysia, the ChiefParliamentary Draftsman within the Ministry of Justice hasestablished a simple procedure whereby other governmentagencies may request legislative changes. 4 The Philippinesestablished the Inter-Agency Committee on EnvironmentalProtection together with a legal subcommittee in 1981, 5 and,as an outgrowth of that body, the National EnvironmentalProtection Council was established in 1985, 6 with a staff thatincludes legal officers. 7 These institutions are responsiblefor general environmental issues including the control ofland-based marine pollution. However, due to the lack oftrained officers, the effectiveness of these institutions onenvironmental law review and amendment has been limited. 83 Thailand: National Environment Board, "Policies and Measuresin 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 71.82Besides, since these institutions are responsible for generalenvironmental law evaluation and amendment, the issue of land-based marine pollution is often ignored while attentions tendto focus on product-oriented environmental issues such as landplanning. 9 Therefore, a comprehensive government forum withadequate staff who are charged with the special responsibilityof evaluating and amending the existing laws and regulationson land-based marine pollution control should be established.B. National PoliciesThe responsibility of a government on marine environmentmanagement usually includes: policy making; comprehensiveplanning and management; establishment of a legal andregulatory framework; implementation of adopted plans,programmes and projects; coordination, control and evaluationof marine activities; research, advisory and technicalservices; financing of projects; and training of personnel,etc. 1° The highest level is policy and decision making. 11 Aneffective national marine policy has to set out priorities andbe translated through appropriate administrative mechanismsinto specific projects, preferably complementary, but at least9 Fonseca, R., "Governmental Planning and the Environment" inHassan, 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.83not in conflict with each other. 12 The process through whichthis is accomplished must take into account of all of theactivities on development. Sometimes the government must makea policy choice on conducting the activities on the control ofland-based marine pollution and on conducting otherdevelopmental activities and projects. 13A national policy for the development and management ofthe coastal area should have certain characteristics. On theone hand, the development of a national policy should involvewide-ranging consultations with citizen's groups, business andcommercial interests, universities and research groups, andother interested parties. 14 On the other hand, the policy ofthe government should be stated in a clear, simple andintelligible form, and should be logically consistent andeconomically sound. 15However, the current policies on coastal environmentcontrol in the countries in Southeast Asia are quitegenera1. 16 For example, the national policy on coastalenvironment management in Thailand was stated by the NationalEnvironment Board in 1982: "development in the coastal area1213 Ibid.14 Jittirat, M., "Government Policy and EnvironmentalConversation" (Bangkok, 1988) at 6.15 Ibid. at 8.16 Ibid, at 11.84should seek to maximize environmental quality, while ensuringthe greatest growth rate of production and other economicactivities." 17 A formulation of this nature is neitherconsistent nor economically sound. A sound environmentalpolicy would presumably represent maximum environmentalquality, and it would not exclude most human activities;maximum industrial production in the coastal area wouldmaximize waste loadings into the coastal waters, thus beinginconsistent with maximum environmental quality. In fact, itis only possible to increase environmental quality by usingresources diverted from other purposes. In the economist'slanguage, there is a trade-off between economic growth andenvironmental quality, and a workable policy must recognizethis relationship. 18 Therefore, it is not possible toconceptualize a basic model for the adoption of a marinepolicy, because too many forces, requirements andinstitutional arrangements are involved.As suggested above, a precondition for the determinationof a national marine policy is that the coastal state shouldidentify its marine environmental problems.19 This" See: Thailand National Environment Board, "Policies andMeasures in National Environmental Development" (Bangkok, 1982).p.2.18 Kildow, J.T., "Political and Ecomonic Dimensions of Land-Based Marine Pollution" in Charney, J.I. (ed.), "The NewNationalism and the Use of Common Space" (1987, 2d) at 43.19 Okidi, C.O., "Regional Control of Ocean Pollution: Legal andInstitutional Problems and Prospects" (1988) at 45.85determination depends on the availability of basic informationregarding the ocean space under the national jurisdiction ofthe coastal state. 20 In the absence of such information, itis essential that the state proceeds to a preliminaryassessment and only after such an assessment will the state bein a position to consider establishing a specific marinepolicy. 21 It may happen that, having conducted such apreliminary assessment, the state decides not to make aspecial effort to define a marine policy because of thelimited benefits such a policy would bring to the nationaleconomy. Even in this case, however, it is imperative that thestate base its decision on sufficient information.The coastal state will have to assess its marineinterests on the basis of an understanding of all present andpotential uses of its ocean space. 22 It will then have toevaluate the direction of its policy, and it will also have totake into account its scientific, technological, financial andhuman capabilities. 23 Then it will have to proceed to anoverall economic evaluation, but this evaluation will not bethe sole criterion on which the policy will be based. 24 It20 Ibid.21 Ibid.22 Ibid, at 62.23 Sand, P.H., "Marine Environment Law" (1988) at 34.24 Soni, R., "Control of Marine Pollution in International Law"(1985) at 71.86will be necessary to make comparisons among different sectorsin order to establish priorities.C. Legislative RecommendationsMarine environment management requires that eachgovernment should undertake a systematic evaluation of itsenvironmental law framework. 25In addition to the more obvious environmental lawcategories, a variety of other legislation which, properlyused, might be of environmental importance. 26 For example, itwill be useful to examine the statutory means by which thegovernment might create non-penal economic incentives to meetnewly established environmental objectives. 27 Is it possible,for example, to waive duty requirements in connection with theimportation of pollution control facilities? Can thedepreciation on capital investment in waste-water treatmentequipment be accelerated for tax purposes in order to makesuch investment more attractive? Is it possible to encouragedomestic production of pollution control equipment through theinvestment promotion process? 28In the abstract, it is difficult to anticipate the range25 Ibid, 101.26 Sand, P.h., "Marine Environment Law" (1988) at 91.27^See: Delogu, O.E. and Soell, H., "Fiscal Measures forEnvironmental Protection" in Environmental Policy andLaw" (Paper No.11, International Union for Conservationof Nature and Natural Resources, 1986).28 ^at 101.87of opportunities for marine environmental protection thatexist in legislation. 29 However, the importance of a well-rounded approach to environmental legislation should beclearly understood. The implication is that legislativeefforts cannot be wholly confined to environmental agencies,but must include all the offices of government whoseactivities bear, or might be brought to bear, on theimplementation of environmental policy.The critique will furnish a basis for the formulation ofspecific legislative recommendations. 30 As relates to theissue of land-based marine pollution, it may be useful tomention seven broad criteria by which the utility of currentlegislation may be gauged.1. Legislation on Land-Based Marine Pollution Control ShouldEstablish Clearly Discernible ObligationsAs mentioned earlier, most of the existing legislation onthe control of land-based marine pollution in the developingcountries in Southeast Asia have vague objectives which leaveexcessive discretion to administrators. 31 It is notsufficient to say that discharges that would "cause a dangerto the public" are prohibited32 because a provision like this29 Ibid, at 81.30 Ibid, at 92.31 See: Chulasia, B. and Siriratpiriya, 0. (ed.), "OurEnvironment" (Bangkok, 1988) at 44.32 For example, see: The Philippines Pollution Control Act,1981, Article 7.88does not tell a discharger whether he is obeying or disobeyingthe law. Under such a provision, since there is no specificstandard, the administering agency has a big discretion onwhat constitutes a violation. As a result, the law does noteffectively sanction illegally discharge. Thus, thelegislation should set out specific standards so that controlcan be effective and people can know clearly whether or notthey are in compliance with the law.2. Legislation on Land-Based Marine Pollution Control ShouldPermit Administering Agencies to Tailor Their Enforcement toDiffering CircumstancesThis proposition may appear to contradict the firstproposal of establishing clearly discernible obligations, butit does not. The obligations must indeed be clear, and everyindividual must know precisely what his obligations are. Butin a developing country, there may be good reasons forcreating different obligations for different people, or withindifferent geographical areas. 33 For example, waste-waterstandards applicable to large, capital-intensive industrialcomplexes may or may not be appropriate in the context of asmall family-owned business, even if the manufactured productis the same. 34 It is an essential aspect of pollution control33 Holdgate, M.W., "A Perspective of Environmental Pollution"(London, 1988) at 151.34^See: J.B. Aden: "The Relevance of EnvironmentalProtection in Indonesia", 4 Ecology Law Quarterly 987,1003.89that different standards might be formulated in differentsituations, depending on the nature of the specific use andthe general capability of the users. 353. Legislation on Land-Based Marine Pollution Control ShouldFacilitate Rapid Adjustments to Changing TechnologyIn today's world, with the rapid development of scienceand technology, environmentally significant innovations suchas new pollution treatment processes come out frequently.Environmental agencies must be given sufficient latitude toensure that the benefits of these research are realizedquickly. 36 Legislation on land-based marine pollution controlshould therefore accommodate an appropriately dynamicregulatory regime, consistent with the need for clearlydiscernible obligations.4. Legislation on Land-Based Marine Pollution Control Shouldbe Rooted in RealityThis proposition has two different meanings. First, itmeans that new laws should be based on actual, not assumed,needs. No environmental law reform project can succeed unlessit is carried on in close cooperation with the officials whowill be responsible for implementing the resulting provisions.Where possible, proposed statutory innovations should reflectsupra note 33, at 78.36^See: J.F. Sax: "Legislative Techniques: A General Surveyof the Problem" in "Science for Better Environment"(Proceedings of International Congress on the HumanEnvironment, Kyoto, 1975), at 791; Also J.B. Aden:"Environmental Protection in Indonesia", at 1005-1006.90needs and priorities perceived by the operating officialsthemselves.The second implication of the "rooted in reality"principle is that legislation on land-based marine pollutioncontrol should establish attainable, not ideal, objectives. 37It is useless to create a regulatory procedure which requirestechnical and manpower resources which are neither availablenow nor likely to become available in the near future. 38 Thisis very important for developing countries because theircapability of innovating new technique or implementing newtechnical devices are limited. For the same reason, standardspromulgated administratively pursuant to a general enablinglegislation should be standards which can be met. Ifcompliance is not economically or technically feasible,enforcement officers will ignore the requirements, and inshort period the entire regulatory scheme will collapse.5. States Should Review Their Environmental Laws and UpdateTheir Rules and Regulations to Implement the RelevantProvisions of Regional and International AgreementsThis action would provide necessary stimulus to harmonizethe laws of the states in Southeast Asia. It would also groundthe common position of the states when a marine environmentaldispute arises, and could lead to the improved pollutioncontrol from land-based sources.37^See: P.H. Sand: "Marine Environment Law" (1988) at 107.38 Ibid, at 110.91On the other hand, given that the states may have otherpriorities relating to their economic development, there is areal question of how such laws and regulations could beenforced in each country. Once the regionally orinternationally accepted laws are adopted as part of thedomestic legislation, pressure may come from environmentalgroups and international organizations for increased effectiveenforcement. As a result, uniform standards would limit theflexibility in the approaches which are based on such domesticconsiderations as development priorities, stages of economicdevelopment, and carrying capacities of different sections ofthe environment. 39 However, domestic enforcement ofinternational rules and regulations is an important part ofinternational environmental law, 4° therefore, states shouldupdate their domestic environmental legislation to reflect thenewest development in regional or international legislation.6. The States Could Harmonize Their Practice and ReconcileTheir Pollution Control Regulations for Major CommonPollutantsThe harmonization of the practice and the regulations inpollution control will ultimately benefit the statesconcerned. The countries in this region would be required tore-examine the rationale for their laws and to develop new39 Soni, "Control of Marine Pollution in International Law"(1985) at 111.40 Ibid, at 19.92laws or to modernize those which are outdated. Harmonizationcould avoid conflict because one country's resources may beshared by other states. Harmonization could eliminate thequestion 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 atdifferent stages of development and, therefore, presumablyhave different environmental protection priorities andcapabilities for enforcement. Uniform laws and standards wouldpreclude a differential approach within the country. Theuniform standard could also create disharmony between thecountries.Singapore would probably support the idea on theharmonization of pollution control practice and regulations.Singapore has the strictest effluent standards among thecountries in this region. 41 On the other hand, although thecountry would like to benefit from a cleaner marineenvironment, it probably would not want to pay for the controlof those pollutants which are not indigenous to the land ofSingapore. 42Malaysia might favour the arrangements because it favours41 See: UNEP, "Environmental Protection in ASEAN Countries"(Bangkok: UNEP Regional Office for Asia and the Pacific, 1983).la Science Council of Singapore, "Environment Protection inSingapore: A Handbook" (1990) at 31.93a cleaner environment in its "front yard". 43 However, sincemost of the land-based pollutants in Malaysia come fromagricultural and mining industries, further pollution controlmay economically constrain the expansion of theseindustries. 44 Furthermore, Malaysia might have to introduceand upgrade a few standards to match those of Singapore.Malaysia's choice of emphasis on pollutants and geographicareas of control could thus be limited. Correlation of landand marine environmental laws also would be necessary.Indonesia would probably not favour this approach becauseits laws are the fewest and its standards the weakest amongthe five countries. 45 In effect, its priorities and itsregulations would be influenced by its economically better-offneighbours. Further, Indonesia has the largest area ofresponsibility and the most pollutants most difficult tocontrol, such as siltation from extensive logging. 46Moreover, Indonesia has the only oil and gas production inthis region. 47 Because oil and gas are the mainstay of theeconomy, Indonesia may believe that its development should not43 Lee, T.T., "Law and the Protection of the Environment"(Kuala Lumpur, 1986) at 19.44 Maheswaran, A. and Singham, G., "Environmental Problems inMalaysia" (Kuala Lumpur, 1986) at 19.45 Soegiarto, A., "The Indonesian Marine Environment: theirProblems and Management" (Jakarta, 1988) at 7.46 Ibid.47 mid, at 9.94be hampered in any way.7. States in This Region Could Agree to Ratify or Accede toMajor International Conventions of Environmental RelevanceDealing with Land-Based Marine PollutionAdvantages of this proposition would include thepossibility of strengthening the states' claims tocompensation, the availability of the international machinery,and the upgrading of their own laws; The disadvantages mayinclude the preclusion of independent action, the cost andprocess of the increased enforcement and research, and theperceptual surrender of authority to internationalorganizations to approve the various implementations. Positivepositions of the states in this region on this possibility maybe influenced by the same factors mentioned in relation toharmonization of environmental practice and regulations.D. Organization StructuresAny marine environmental protection plan will have to becarried out through existing institutional mechanisms."Structurally, marine affairs involve a large number ofgovernment sectors because this field encompasses a largespectrum of activities and different interests. 49 In thefield of the conservation and protection of the marineenvironment, the interaction between different agencies and48 Johnston, D.M. (ed.), "The Environmental Law of the Sea"(1981) at 221.49 Ibid.95their potential for competition, conflict and duplication havegrown while the coordination and harmonization of theiractivities have become more and more difficult and complex."In terms of the function of government agenciesin marine environment protection, it is likely that earlyattention will have to be directed to the government'sadministrative organizations." If the situation is typical,environmental authority will be scattered through a great manyagencies and may involve a number of potential or actualjurisdictional conflicts. The government's legal advisors willtherefore want to consider the utility of establishing a newcentral environmental agency drawing together variouscomponents from existing agencies in order to rationalizetheir environmental management functions. 52It is essential that these determinations should not befounded upon untested preconceptions of the country'sadministrative and legislative requirements. There can be nodoubt that the harmonization of all environmental regulatoryactivities should be the ultimate goal of any government'slong-range plan. It is less clear, however, whether a sudden,dramatic movement in that direction at this time in adeveloping nation will advance or retard the cause of5o51 Soni, "Control of Marine Pollution in International Law"(1985) at 99.52 Ibid.96environmental management in the short run. 53Given the current state of land-based marine pollutioncontrol regulations in the developing countries in SoutheastAsia, government lawyers in most cases would be better advisedto focus their initial efforts on strengthening existinglegislations and organizations. Within each country,environmental activity can be more intensive, more effectiveregulatory effort. The development of more effective legalinstruments, more efficient procedures, higher penalties, andso on, will in many cases be sufficient to create a markedimprovement in the government's environmental performance.Once credibility is achieved, more ambitious rearrangementsmay be in order.Even with the attribution of major responsibilities to aparticular ministry, it is necessary to establish othermechanisms or arrangements and variations for insuring propercoordination among the several ministries havingresponsibilities in marine or environmental affairs. Thesearrangements should be established at a high level - forexample, an inter-ministerial committee - to ensure acapability to adopt and direct the implementation of acoherent overall national policy which would lead to therational management and development of the ocean environment.In order to discharge its functions, the inter-ministerial committee must have a comprehensive overview bothIbid, at 113.97of ongoing marine activities and of potential marineactivities, and of the interactions among them. It follows,therefore, that it would require the support of an inter-sectoral body that would collect, consolidate and synthesizeinformation and data derived from sectoral sources. Thisshould permit the inter-ministerial committee to establishpolicy directives and set priorities which would in turn beused by a central planning board to develop an integratedmarine environment protection plan.It would then be the responsibility of each ministryconcerned both to translate the approved plan into specificprogrammes and projects, and to implement them. At the sametime, necessary legislation should be enacted or revised toallow the governmental policy to be carried out and adoptedprogrammes to be implemented.E. Planning Coastal Zone Management ProgramSince land-based marine pollutants are pathed into themarine environment through coastal areas, appropriate plan andmanagement on the use of coastal zones will improve thecontrol activities. 54 Some developed countries have alreadyadopted coastal zone management programs. However, none of thedeveloping countries in Southeast Asia has established acomprehensive agency responsible for a coastal planning for54 Johnston, D.M. (ed.), "Environmental Law of the Sea" (1981)at 112.98the benefit of marine pollution contro1. 55 Coastal zonemanagement in Southeast Asia covers marine pollution, wetlandprotection, coral reef ecosystem, coastal zone resources,mangrove forest management, aquatic resources exploitation,beach mining, offshore oil exploration, fisheries and land useprojects for recreational facilities, housing and industrialactivities along the sea coast. 56 To deal with theseproblems, it is necessary to establish a Coastal Commissionwhich is charged with the responsibility of supervising andcoordinating 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 scenicbeauty.Protecting the scenic beauty of the coastline is one ofthe main target of coastal zone protection. 57 Theestablishment of scenic beauty spot in place of plants orhabitations may help reduce the amount of land-basedpollutants which would go into the marine environment.Therefore, a marine park is helpful to protecting and55 See: UNEP , "Report on the Protection and Development of theMarine 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 ofAquaculture and the Effects of Pollution on Coastal AquacultureDevelopment in Southeast Asia" (1989) 20 Marine Pollution Bulletin335 at 341.99conserving numerous habitats and ecosystems in the marineenvironment. Marine parks can also be an educational measurefor people who may be ignorant of marine life.2. Energy FacilitiesAn major problem regarding coastal zone relates to energyfacilities. Energy production is essential for economicdevelopment and human life. Energy facilities, including thosefor petroleum production and refining, should be considered inthe coastal plan as wel1. 58 Naturally, this issue isdifferent from country to country. For example, the situationin Singapore is quite serious in locating these facilitiesalong the coastal area because Singapore is a harbour citywhich relies heavily on the import of raw energy; Malaysia,Indonesia and the Philippine also face the problem of energyfacility management in coastal area because these countriesproduce raw energy themselves and have substantial business inenergy export; while Thailand seems to be in better situationon this issue because it does not rely on foreign energy or onenergy export.The management of energy facilities is important butdifficult. Several court cases in Japan indicate the hardshipincluded in storing petroleum or liquefied natural gas alongthe coastal zone. The Mizushima case in Japan in 1974 involvedaccidental spills of petroleum from tanks along the coast,58 Lowe, J. and Lewis D., "The Economics of EnvironmentalManagement" (Oxford, 1980) at 71.100which caused serious sea water pollution in the Seto InlandSea. 59 The 1979 cases of the Okinawa Central TerminalStation Construction and the Himeji Natural Gas BaseReclamation also demonstrate the difficulty of selecting basesfor these facilities. 60 It may be argued that acomprehensive plan for locating petroleum preparation basesand for safety should be standardized and applied beforehandin order to avoid such accidents and litigation.F. Applying the Cost-Benefit RuleSocial cost-benefit analysis is the economist's method ofproviding "a conceptual framework for assessing the socialworthiness of a particular action or project based on acomparison of the total value of the expected social benefitswith the total value of the expected social benefits with thetotal coasts involved" . 61 If the value of the expected socialbenefits "exceeds the total cost incurred, then the action issocially justified. "62The cost-benefit rule can be especially important fordeveloping countries because their technological and financial59^Ikufumi Nimi: "Environmental Problems and Economy inJapan" (University of Tokyo Press, 1986), at 35-45.60^Ibid, at 45-48.61^M.B. Gregory, "Economic Analysis of Environmental Issues"in John Leihan and William W. Fletcher, ed.: "Economicsof the Environment" (New York, 1979), at 15.62^Ibid.101capabilities on environmental management are quite limited. 63It is suggested that the drafting on the regulations on land-based marine pollution control should revolve around thepollution control measures, with due attention given toexisting social-economic situations, thus striking a balancebetween the cost of introducing land-based marine pollutioncontrol and the benefits derived from them.For example, many of the oil production platforms inMalaysia are located some 150 miles off the coast." From thecost-benefit viewpoint, it would not be desirable for aunified standard of oil content to be imposed for effluentwithin the Malaysian exclusive economic zone. Such impositionwould also probably prove to be cost ineffective. A morepractical approach would be to have zonal standards with adecreasing degree of stringency relative to distance fromshore. Where areas are known to be environmentally sensitive,stricter controls need to be imposed, depending on thebiological and economic values.G. The Possibility of A Joint PlanIt remains unlikely that effective joint operations canbe mounted for the marine environment in this region because63 Kildow, J.T., "Political and Economic Dimensions of Land-Based Marine Pollution " in Charney, J.I. (ed.), "The NewNationalism and the Use of Common Space" (1987, 2d) at 79.64 ^A. and Singham, G., "Pollution Survey of CoastalAreas" (Kualua Lumpur: division of Environment, 1989). p.5.102of 1)the insufficiency of personnel and equipment," 2)theusual administrative difficulties which are compounded by thenecessity for close cooperation, 66 and 3) a lack of adequatefinancial support. 67 Besides, some countries may not want tomaintain equipment and trained personnel at the level requiredby the contingency plan. Sovereign concerns may also arisewhen the marine police or navies of the countries areinvolved.Singapore may feel that it would be more efficient todeal by itself with land-based pollution problems in its oradjacent waters because of its established legislation andmore developed control facility. 68 Malaysia may share thisview." Indonesia may also favour such a scheme because itsmost important priorities are on development and thegovernment of Indonesia could thus benefit from the input ofits neighbours. 7°65 See: Chulasia, B. and Siriratpiriya, 0. (ed.), "OurEnvironment" (Bangkok, 1988) at 38.See: Jittirat, M., "Government Policy and EnvironmentalConservation" (Bangkok, 1988) at 17.67 See: Jaafar and Valencia, "Marine Pollution: NationalResponses and Transnational Issues" in Kent and Valencia (ed.),"Marine Policy in Southeast Asia" !988) at 19.Science Council of Singapore, "Environment Protection inSingapore: A Handbook" (1990) at 21.69 See: Shane, J., "Legal Aspects of Environmental Managementin Malaysia" (1987) at 51.70 Karimoeddin, E., "National Report of Indonesia" inDielenstein, D. (ed.), "One World: Industrialization andEnvironment" at 14.103H. Training and EducationIn developing countries, the formation of specificlegislative and institutional recommendations is notsufficient for the management of environment. 71 Anenvironmental infrastructure capable of supporting andimplementing new legal approaches to environmental managementis important for the enforcement of law. One of the mostserious impediments to real progress in this respect inSoutheast Asia is the lack of lawyers who are educated in theways in which law can be used as a tool for environmentalmanagement. 72 As a result, most of these governments do nothave a readily available source of creative legal thinkingwith respect to new environmental challenges. 73There is an urgent need, therefore, for a major effort tofurnish practical instruction in environmental regulatorytechniques. The instruction should be first aimed at lawyersalready working in government agencies who are charged withenvironmental responsibilities. Furthermore, relevant teachingmaterials must be prepared and furnished in ample quantitiesto support the establishment of new university courses onenvironmental law. The objective should be to create a cadreof 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.104innovative advice in this critical area.Public education is also important to create a favourableclimate for proper environmental regulations to beimplemented. 74 Lectures, talks, exhibitions, and publicationsare some of the many forms of educational material andfacilities available.I. Conducting Operational ResearchThe type of research referred to in environmentalmanagement not only includes constructive innovations onenvironmental studies and control measures, but also includespractical operational research. 75 The latter is action-oriented and directed towards defining the problem at hand andformulating practical and achievable solutions within thelimitations of the finances, manpower, and the technical andscientific resources available. 76In the developing countries of Southeast Asia, land-basedmarine pollution cases are closely related to localgeographical and social-economic specifications and,subsequently, the application of relevant control measureslies, to a great extent, on the ability of analyzing localproblems and utilizing local resources." A good way to74 Johnston, D.M. (ed.), "Environmental Law of the Sea" (1981)at 102.75 Ibid, at 111.76 Ibid.77 Hill, R.D. and Bray, J.M. (ed.), "Geography and theEnvironment in Southeast Asia" (Hong Kong, 1986) at 61.105achieve this is to conduct operational research as mentionedabove. In addition, in an early stage of development, acountry may not be able to afford pure academic research,especially if expensive equipment and highly trained personnelare required. 78 Operational surveys are less expensive andare essentially designed to define the problems and to workout solutions. When these countries have progressed to acertain stage, groundwork could be laid for later and morefundamental and basic research.J. The Role of External Cooperation and AssistanceExternal technical assistance is, in fact, an integralpart of the environmental management package in developingcountries. 79In developing countries, recommendations regarding governmentadministrative organization and assistance in the developmentof new environmental law training programs will contributemeaningfully to the establishment of a more effective legalfoundation for environmental management. mProposals calling for changes in legislation or inorganizational arrangements must be supported by anunderstanding of the social and cultural setting within which78 Tipple, V.K. and Kester, D.R., "Impact of Marine Pollutionon Society" (1989) at 27.79 Johnston, D.M. (ed.), "Environmental Law of the Sea" (1981)at 233.80 Ibid.106the new laws or institutions will have to operate. m However,this is a point that cannot be emphasized too strongly indeveloping countries. The creation of new legal apparatus forenvironmental management is a subtle and complex issue, andthe process must be carefully tailored to the uniquecharacteristics of each country. It is an undertaking thatcalls for patience and sensitivity. 82Besides, international organizations should consider thecreation of a specialized institution whose function would beto bring together governments seeking assistance in thedevelopment of new environmental legislation and qualifiedexperts capable of delivering that assistance. The institutionmight consist of a relatively small staff, but it wouldmaintain a roster of qualified attorneys willing to undertakeshort or medium term contracts in order to respond to requestsfor such help. °External technical assistance needs to be reviewed tobecome an effective agent for the advancement of environmentalmanagement in the countries in Southeast Asia. A progressiverevision should have several facets: 1) Technical assistanceIbid, at 114.82 Ibid, at 119.See W.W. Shaner: "Some Problems Associated with the Useof Foreign Advisors in Developing Countries" in E.Vlachos ed.: "Transfer of Water Resources Knowledge"(Water Resources Publications, Colorado, 1983), at 345.107must be updated." 2) The execution of technical assistanceneed to be adjusted to intensify the interaction between theassisting country and the assisted country. 85 3) Assistanceapplication must be de-bureaucratized. ° In particular, thegoal and measure of success must be more than a report, nomatter how elaborate or packaged. Technical assistancerequires that international and bilateral technical aid,donor, and lending agencies hold the key to the practicaldevelopment in technical assistance. 87K. Establishing a Proper Balance Between Controlling Land-Based Marine Pollution and Attracting Foreign CapitalAs mentioned before, investors in developing countrieswhich have stringent environmental management regulations tendto shift their investment into developing countries which haveless stringent environmental regulations so that they couldavoid the cost of pollution abatement. ° Southeast Asia is aregion where environmental sensitive countries, such as theU.S. and Japan, put a lot of pollution-generatinginvestment. 89 Apart from cheap labour and raw materials in84 ^& Valencia (ed.), "Marine Policy in southeast Asia"(1986) at 41.8586 Ibid.87 Ibid, at 118.Lowe J. and Lewis D., "The Economics of EnvironmentalManagement" (1980) at 17.89 See: ASEAN Year Book, Vol. 1991, No.1, p.8.108these countries, one of the important reasons for theconcentration of foreign investments in this region is thatattractive terms are offered by these governments to induceforeign industrial investment. 90There should be a proper balance between the desire toattract foreign capital on the one hand and the necessity ofsafeguarding the environment on the other hand. Fromexperience, it has been found that in the early stages ofindustrialization, it may be necessary not to insist on overlystrict compliance with environmental standards so as to avoidundue hindrance to production and development." However,industrial development must not be achieved at the expense ofconstant serious damage to the ecosystem. As developmentprogresses, the necessity of insisting on more stringentcompliance with the minimum pollution abatement standards mustbe emphasized. Otherwise, the price in terms of degradation ofthe environment may be too high for society to bear.L. Environmental Impact AssessmentAs mentioned before, the countries in Southeast Asia havestarted on the groundwork of conducting environmental impactassessment, though no comprehensive work has been done in thisregard. Further efforts on environmental impact assessment inthese countries are needed. For example, specialists in9° Ibid.91 ^V.K. and Kester, D.R., "Impact of Marine Pollutionon Society" (1989) at 49.109specific fields should be charged with the responsibility ofassessing environmental effects in their fields and providingthe necessary information on the likely environmental effectsfor informed decision making. As the machinery for and thecommitment to planning already exist in these countries, thereneed be no significant change to the existing institutionalarrangements for project submission, evaluation and approvalprocess. All that is required is an enlarged planningmethodology for the environmental dimension to be integratedinto development planning right from early stages of planning.110CHAPTER V: PROSPECTS FOR REGIONAL CO-OPERATION ONLAND-BASED MARINE POLLUTION CONTROL IN SOUTHEAST ASIASince marine pollution knows no boundaries, its controlhas international as well as national dimensions. In SoutheastAsia where nations are separated only by short stretches ofsea 1 and where a pollutant entering into the marineenvironment within one national jurisdiction may quickly havea deleterious impact on another nation's coastal zone, 2 theissue of marine pollution control from a regional perspectiveis particularly complex.All the states in Southeast Asia are littoral states. 3The disputes among these littoral states on marine boundarydelimitation have existed for a long time. 4 If all the statesin Southeast Asia extend their marine jurisdiction as theyclaim, the entire region would become a mosaic of nationalcontrol. 5 Disputes would arise when different states claimjurisdiction over the same area of the sea, and this adds moredifficulty to the issue of marine pollution control in thearea which is claimed by different countries. For example,1 Hill, R.D. and Bray, J.M., "Geography and the Environment inSoutheast Asia" (Hong Kong, 1986) at 17.2 Ibid, at 23.3 Ibid, at 3.4 See: Kent & Valencia, "Marine Policy in Southeast Asia"(1986) at 17-25.5 Ibid, at 24.111most countries in Southeast Asia claim exclusive economiczones reaching 200 nautical miles from the nationalbaselines. 6 A coastal state's rights over the exclusiveeconomic zones would comprise jurisdiction with regard to thepreservation of the marine environment. If pollution from landis found in an area which is claimed by two differentcountries as economic zone, which country is responsible forbring about the pollution? And which country is furtherresponsible for taking active measures to prevent pollution inthis area? To solve these problems, regional co-operation isneeded.Moreover, the ocean is a natural geo-political link fornations through their interactions and interdependent policiesconcerning the management of its environment. 7 Extendednational jurisdiction does not alter the facts that: (1)marineresources are often transnational in distribution; (2) theocean, as a continuous fluid system, transmits environmentalpollutants and impacts; and (3) maritime activities transcendthe projected national marine jurisdictional boundaries. 8Thus, overlapping boundary claims may create opportunities forregional cooperation or. In this Chapter the different6 Jaafar and Valencia, "Marine Pollution: National Responsesand Transnational Issues" in Kent and Valencia, "Marine Policy inSoutheast Asia" (1986) at 52.7 Okidi, C.O., "Regional Control of Ocean Pollution: Legal andInstitutional Problems and Prospects" (1988) at 16.8 Ibid.112national marine interests of the Southeast Asian countries areexamined, and the opportunities for, as well as constraintson, a cooperative regional approach on land-based marinepollution control are explored.A. National Marine Interests of Major Southeast AsianCountriesEach country in Southeast Asia has its own interests inthe marine area and is thus, presumably, in a position toaffect, or be affected by, the developments of other countrieson the management of the marine environment. 9MalaysiaAs a water-separated state, Malaysia has a nationalsecurity interest in unrestricted access and communicationbetween Peninsular Malaysia and Sarawak and Sabah."Hydrocarbon exploitation is ongoing off both Sarawak andSabah, and these states are rich in other natural resourcessuch as timber, coal, and copper." Moreover, one of thelargest Malaysian development projects - a liquefied naturalgas plant and aluminium smelter - is situated in Bintulu,Sarawak. 129 Ibid, at 35.10 See: Anderson, J., "Perceptions and Definitions of theCoastal 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" 16Ocean Development and International Law 21112 Supra note 2.113Malaysia has accepted the Indonesian archipelagic conceptwith the provision that the legitimate and existing rights ofstates adversely affected by the principle would be protectedby international law. 13 Such rights may also include theprotection of marine environment. 14 Malaysia may alsoeventually be concerned about passage from the west to theeast coast of the Peninsula through Singaporean waters, andfrom Sarawak to Sabah through Brunei's waters when the latterextends its jurisdiction. 15Security and sovereignty considerations are strongfactors in Malaysia's position on use of its "front street"--the Malacca Straits." Environmental protection in theStraits, formerly a secondary issue, has now become of primeimportance to Malaysia. 17 Anti-pollution feeling is becomingstronger among the population, and an oil spill contingencyplan has been adopted for the Straits." There is a provisionin the Environmental Ouality Act of 1974 regarding oildischarge and the liability of the party causing the pollution13 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 AsiaToday 1318114to bear the costs for removing it." Further, it enablesenforcing officials to detain any ship involved in a spill ordischarge and, with court permission, to sell it if the owneris unable to pay the fines and the costs. 2°SingaporeSingapore has the smallest area in the region and thesecond smallest population, but has the second highest GDP percapita. 21 Singapore is considered geographicallydisadvantaged, being shelf-locked and having the leastpotential offshore area accruing in the event of a 200-milelimit. 22 The small area of Singapore accounts for the highestproportion of coastline per unit area, which fosters a senseof intimacy with the sea among its people. 23Singapore intends to enhance its status as the maritimecentre of Southeast Asia, serving to consolidate and dispersethe Europe-Southeast Asia trade. 24 In the long term,Singapore may thus benefit from the extension of jurisdiction19 ^Environmental Quality Act (1974), Article 19.20^Parvez Hassan: "Status of Environmental ProtectionLegislation in the ESCAP Region", ESCAP/UNEPIntergovernmental Meeting on Environmental ProtectionLegislation, July 1987, Bangkok, at 28.21 See: (1991) 9 Asia Today 222 Chia Lin Sien, "Planning and Environmental Management inSingapore" (Hong Kong: Hong Kong University Press, 1988) p.923 Ibid.24 See: (1991) 9 Asia Today 10115of its neighbour and their increased marine activities. 25Because of the small offshore area accruing under a 200-mileregime, presumably, Singapore will have the least problem inenforcing transnational regulations there. 26ThailandThailand is zone-locked in the Gulf of Thailand and inthe Andaman Sea, and thus has interests in the types of marineregimes promulgated by its neighbours. 27 Coastal defence andcontrol of smugglers, pirates, and illegal domestic fisheriesoperations are the government's general concern. 28Thailand is also concerned with the settlement of itsoffshore boundaries with its neighbours. 29 It has settlednearly all of its marine borders on its Andaman Sea coast, forexample, with Indonesia and with Malaysia; the only remainingunsettled Andaman Sea boundary is with Burma. 30 Borders inthe eastern Gulf of Thailand remain a problem, especiallybecause of hydrocarbon potential. Thailand and Malaysia both25 Kent and Valencia, "Marine Policy in Southeast Asia" (1986)at 91.26 Ibid, at 92.27 Hill, R.D. and Bray, J.M., "Geography and the Environmentin Southeast Asia" (Hong Kong, 1986) at 71.28 Jittirat, M., "Government Policy and EnvironmentalConservation" (Bangkok, 1988) at 24.29 Kittichaisaree, K., "The Law of the Sea and MaritimeBoundary Delimitation in Southeast Asia" (New York: OxfordUniversity Press, 1988) p.29.30 Ibid.116claim a small area which extends offshore from their landborder and contains a gas field. 31B. Background Developments on Regional Efforts on MarinePollution Control in Southeast AsiaThere have been some regional efforts regarding thecoordination of rights and duties with respect to thepreservation of marine environment in Southeast Asia. Theregion is large and the environmental problems are varied.Therefore, protection of the sea and the living marineresources have been dealt with on a sub-regional basis, inresponse to the needs and priorities of the states directlyconcerned. For example, Malaysia, Indonesia, and Singaporehave cooperated very closely on matters relating to theStraits of Malacca, especially as relates to the prevention ofpollution. One of the results of such cooperation is theagreement in 1977 among the three states which was adopted bythe Inter-Governmental Maritime Council (IMCO) 32 . One featureof this scheme was the adoption of 3.5 meters as the UnderKeel Clearance (UKC) for deep draught vessels. 33 Malaysia hadbeen concerned that there should be a link between the U.N.Law of the Sea Convention, III and the UKC of 3.5 meters. 3431^Lee Yong Leng: "Offshore Boundary Disputes in SoutheastAsia", 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" (19860at 101.34 Ibid.117In this regard, Malaysia (in consultation with Indonesia andSingapore) 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 ICNTdealing with protection and preservation of the marineenvironment. 36 The effect of this provision is that where aforeign ship violates the laws and regulations of the straitstates in respect of prevention and control of pollution"causing or threatening major damage to the marine environmentof the straits, the State bordering the straits may takeappropriate enforcement measures". 37Besides, regional scientific cooperation has beensuccessful in this region. The ASEAN Committee on Science andTechnology (COST) has a subcommittee on marine science whichhas discussed the possibility of a cooperative approach toextra-regional access for marine scientific research. 38 COSThas also spawned an informal committee on pollution in 1987and a proposal for an ASEAN Sub-Regional Environment Programmein 1988. 39 As part of this programme, the member nations havediscussed a coordinated approach to marine environmental35 Ibid.36 Ibid.37 Ibid.38 The most recent meeting of the subcommittee was held inSingapore in March, 1990. See: 8 Asia Today 14.39 Ibid.118protection with the Regional Seas Programme of the UnitedNations Environment Programme (UNEP) in 1988. 4°In the field of training, participants from SoutheastAsian countries attended the Second Regional Training Coursein the Marine Environment held in Japan from July to Septemberin 1985, with the assistance of the United NationsEducational, Scientific and Cultural Organization (UNESCO) ."In September 1985, a regional meeting on Training, Educationaland mutual Assistance devoted to oceanographic problems ofEast Asian Seas was organized in Malina by theIntergovernmental Oceanographic Commission (IOC) of UNESCO.The Food and Agricultural Organization (FAO), in cooperationwith the Swedish International Development Agency (SIDA), helda training workshop on aquatic pollution in relation toprotection of living resources in Manila in 1987. 42Furthermore, in accordance with Decision 88D (V) of theGoverning Council of the U.N. Environment Programme, thefollowing work has been done by U.N.E.P.:In March 1982, the representative from the UNEP visitedthe region to discuss possible elements for an action plan(governments, ASEAN, UNEP, agencies); 434° Ibid.41 Hamzah, B., "Towards Environmental Management" (Singapore,1989) at 13.42 Ibid.43 Report of the Executive Director, UNEP/GC, April 1988, at6-7.119In June 1983, the draft action plan to ASEAN Sub-Committee on Environment (governments, ASEAN, UNEP) waspresented;"In October-November 1984, representative was sent to theregion to discuss revised draft action plan (governments,ASEAN, UNEP, agencies); 45In November 1984 - March 1985, series of training events(workshops, seminars, training courses) were held in theregion (governments, UNEP, agencies ); 46In March 1986, a meeting was held on the review allcomponents of an action plan (governments, UNEP, all relevantorganizations); 47In August 1986, a meeting was held to refine the legalcomponents of the draft action plan (governments, UNEP); 48In October 1986, a inter-governmental meeting was held toreview and adopt the action plan including adoption of theregional convention (governments, UNEP, all relevantorganizations). 49C. Constraints for Regional Cooperation in Southeast AsiaThere are numerous general and specific constraints which45 Ibid.46 Ibid.47 Ibid.48 Ibid.49 Ibid.120must be overcome to move toward functional marine regionalismor sub-regionalism within Southeast Asian countries. Thesegeneral and specific constraints should be viewed within thecurrent and evolving regional political context.Since most of the countries in Southeast Asia achievedtheir independent status after World War II, many of thesecountries are still struggling with the problems of nationhoodsuch as the creation of a sense of national identity among thepopulation, territorial integrity, or establishment of aviable economic and social system." These factors tend tointroduce a nationalistic factor into regional affairs.Within ASEAN, political-economic relations are cordialbut competitive and perhaps unstable in the long run." Forexample, Thailand must maintain a precarious balance betweenits own political-economic system and those of the region.Malaysia and the Philippines have not yet resolved the Sabahissue to Malaysia's satisfaction. 52 The ASEAN economiesproduce many of the same raw materials for their nationallivelihood, and the resulting direct competition for credit,investment markets, and development assistance may increaseconcomitantly with development. 53 Other more far-reaching or50 Chen, M.K., "Strategies of Industrialization in ASEANCountries" in Paw, S.W., "Economic Problems and Prospects in ASEANCountries" (Singapore, 1987) at 31.51 ^at 42..52 Ibid.53 ^at 44.121longer-term indigenous political changes could createinstability within ASEAN, for example, political revolutionsin the Philippines, or racial disorder in Malaysia. 54Anticipated economic benefits may be a prime motivationfor jurisdictional extension, but such extension will produceunanticipated economic and political side effects. First, thezones of extended jurisdictions will bring more areas and moretypes of activity under the control of coastal states. Coastalstates will have to develop policies and efficient managementdesigns for the environment, resources, and the increasingvarieties of activity within these zones. 55 However, in thecountries in Southeast Asia, the administrative, scientific,and technical infrastructure is presently inadequate forefficient management. 56 Therefore, national managementpolicies may be formulated without critical information or thecapacity to implement them.Second, there is also apparent need for increasedbilateral and multilateral consultations, as well as a newdegree of coordination to meet the challenge of theseimpending changes in marine use patterns and concepts. Theform, substance, effectiveness, and net benefit of nationalmanagement designs will both influence and be influenced by54 Ibid, at 51.55 0kidi, C.O., "Regional Control of Ocean Pollution:Institutional Problems and Prospects" (1988) at 59.56 Paw, S.H., "Economic Problems and ProspectsCountries" (1987) 71.Legal andin ASEAN122the interests, activities, and policies of the maritime powersand nations with adjacent jurisdictional zones. Maritimepowers may choose to exploit policy differences by shiftingtheir activities towards areas of least resistance. Thus,diverse national policies for zones of extended jurisdictionwill have interdependent implications for the protection andmanagement of the marine environment and its resources as awhole.Southeast Asian states are beginning to develop a clearperception of their own national marine interests and howthese differ from those of neighbouring states or maritimepowers. However, at this point, commonalities factors areneglected and differences emphasized. 57 There is perhaps alack of mutual understanding by policy-makers of (1) thetransnational marine environment and resource inter-dependencies, 58 (2) the consequences of diverse nationalmarine policies regarding resource exploitation andenvironmental management, 59 and (3) national social-economicand political goals with respect to the environment andresources in national marine jurisdictional zones."Furthermore, the maintenance of newly acquired national57 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.123sovereignty over ocean resources has become central to thenational security. M Cooperation or coordination cannot beperceived as endangering these basic principles. On the otherhand, these fundamentals may be complicated by otherobstacles. For example, a lack of understanding on onecountry's five-year or other fixed term development plans byanother country could inhibit cooperation or coordination ofregional scientific research. Moreover, different nationalinterests and marine policies may hamper the coordination ofmarine environmental regulations.With the extension of jurisdiction by the Southeast Asianlittoral countries, there will be imbalances imposed upon analready economically and politically competitive region. Forexample, the marine area of Singapore is small compared withthe areas of Indonesia, Malaysia, and the Philippines. 62Thailand will also be at comparative disadvantage in terms offishery resources. 63 Such a geographic distribution mayendanger the progress of cooperation. It may also exacerbatewider regional tensions. For example, the windfall increase inarea and resources for Indonesia may provide competition andconflict between Indonesia and the Philippines. 6461 Ibid, at 75.62 Hill, R.D., and Bray, J.M., "Geography and the Environmentin Southeast Asia" (Hong Kong, 1986) at 17.63 Ibid, at 18.64 Ibid, at 21.124The settlement of jurisdictional boundaries is aprerequisite for cooperation on most other issues. 65 Thebaseline of a coastal state's territorial sea is thefoundation for its other claims." There are generalagreements on the 12-mile limit for the territorial sea amongthe coastal states of Southeast Asia. 67 Nevertheless, thecoastal states disagree on a lot of issues on the adoption ofbaselines from which the territorial sea is measured. Forexample, both the Philippines and Indonesia claim theboundaries of their archipelago as baselines for theirexclusive economic zone and the continental shelf. 68Moreover, the disputed ownership of numerous islands in theSouth China Sea is another source of serious disagreement indelimiting sea boundaries in the region. 6965 Okidi, C.O., "Regional Control of Ocean Pollution: Legal andInstitutional Problems and Prospects" (1988) at 72.66 Ibid.67 Jaafar and Valencia, "Marine Pollution: National Responsesand Transnational Issues" in Kent and Valencia, "Marine Policy inSoutheast Asia" (1986) at 83.68 Ibid, at 84.69 Ibid, at 90.125CONCLUSION: INSTITUTIONAL AND ORGANIZATIONALFRAMEWORK: A PROPOSALIn order to cope with the environmental problemsassociated with their social and economic development, thecountries in Southeast Asia have incorporated the managementof the environment into their respective legislation. In thefield of the control of land-based marine pollution, thesecountries have started to do some background work in theirrespective legislation. However, since the control of marinepollution needs the cooperation of littoral states in the samearea, regional cooperation is needed among the developingcountries in Southeast Asia.Cooperation in the regional efforts on the control ofland-based marine pollution is especially important in thefields of data collection and exchange, transfer oftechnology, pollution monitoring, environmental education andtraining, and development of contingency plans. Suchcooperation schemes may be served by concluding a conventionfor the protection of marine environment in the SoutheastAsian seas and by establishing an Southeast Asia environmentalorganization.With regard to the conclusion of a regional convention,we can learn from the experiences of other regions, such as126the Mediterranean Sea, the Baltic Sea, and the Persian Gulf. 1Such experience should be applied according to the specificsocial, economic, political, and environmental situationsSoutheast Asia. In view of the importance and complexity ofthe problem, it might be advisable that the regionalconvention in this region should deal with not only marinepollution control but also with protection of the naturalstate of the marine environment. In this connection, naturalparks and reserves will play an important role in the futureutilization of the marine environment of the Southeast Asianregion.For the purpose of implementing this type of convention,Southeast Asian countries should establish environmentalagencies which carry out the following functions:(1) Keep the implementation of the convention and itsprotocols under continuous observation;(2) Make recommendations on the regional or sub-regionalrules and standards to be elaborated and on measures to betaken by the contracting parties;(3) Determine a "specific area" in which the ecologicalconditions, natural characteristics or the particularcharacter of the traffic requires special regulation andapprove regional or sub-regional rules and standards for this1 As stated in Chapter III, for regional cooperation on marinepollution control, see: Johnston, D.M., "The Environmental Law ofthe Sea"(1981) at 122-147; Hulm, P., "A Strategy for the Seas: theRegional Seas Programme--Past and Future" (1983).127purpose;(4) Designate and manage regional parks and reserves;(5) Examine a development program submitted by thecountries in this region and when necessary, request it tosubmit an environmental impact statement and consult with aparty or parties concerned;(6) Act as the centre of an environmental monitoringsystem and receive reports presented by the contractingparties for this purpose;(7) Act as a centre for notification of any imminentdanger from pollution or threat of pollution by thecontracting parties;(8) Promote, in close co-operation with appropriategovernmental bodies, the protection of the marine environmentof the Southeast Asian waters; and(9) Seek assistance from other regional or internationalbodies in scientific research and other relevant activitiespertinent to the objectives of the convention.There may be some doubt on whether the general climate inthe Southeast Asian region has grown ripe for the conclusionof a regional or sub-regional convention on the control ofland-based marine pollution. 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