The Draft Marine Environmental Conservation Act 2004 and Some Recommendations
It has been already made clear that the existing laws in Bangladesh are very vague, particularly in the areas of prevention of pollution and civil liability for oil pollution. Implementation mechanisms of existing environmental laws are largely unsuccessful. Administrative and judicial authorities are not clear and coordinated. Although, as stated above, Bangladesh ratified the MARPOL Convention with all its annexes, national laws have not been updated to implement this international convention.
Taking these matters into account, the government of Bangladesh finally realized the need for a comprehensive enabling national legislation to give effect to the MARPOL Convention and other conventions to which Bangladesh is a party. In 2004 the Department of Shipping drafted a Marine Environment Conservation Act (MEC Act) for implementation of the MARPOL Convention, which will be placed to the Parliament for consideration after necessary scrutiny.
The draft Act is principally aimed at conserving the marine environment and preventing marine pollution in Bangladesh and at the same time giving effect to the MARPOL 73/78 in Bangladesh. By means of the draft Act, MARPOL will become part of Bangladesh’s law.
It is important to examine the jurisdictional aspects of the draft Act. Section 2 of the Act prescribes the jurisdictional aspect of the Act. It specifically said that it will be applied to: ‘Bangladesh Waters and outside Bangladesh Waters and shall include all ships whether Bangladeshi or foreign within Bangladesh Waters and where Bangladesh Waters are likely to be threatened’ . The Act defines ‘Bangladesh Waters’ as the area defined in s 3 of the TWMZ Act. Section 3 of the TWMZ Act defines ‘Bangladesh Waters’ as the ‘Territorial Waters’ of Bangladesh. The application of the draft MEC Act is said to extend to the all national and foreign ships within Bangladesh waters as well as in cases where Bangladesh waters are likely to be threatened.
It is highly probable that In future this provision may create ambiguity in case the EEZ of Bangladesh is polluted by any act of foreign ship, it is not very clear whether the draft Act will be applicable to that ship because the definition of ‘Bangladesh waters’ only includes the territorial waters of Bangladesh. An ambiguity may arise if owners of foreign ships come up with the argument that no action can be taken against the ship if it is within the EEZ of Bangladesh and not within the territorial sea. Moreover, the question may arise whether the draft Act will be applicable in case of any pollution in internal waters. Thus, the draft Act s 2 needs to be redrafted carefully if it is not to render the Act largely ineffective.
Section 8 of the draft Act seems to contradict with the UNCLOS. This section of the draft MEC Act is going to make discharge as well as escape of oil or pollutant an offence with a very rigorous punishment. However, making unintentional escape or accidental discharge a criminal offence is inconsistent with UNCLOS.
Where Article 230(2) of UNCLOS mentions that: Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a willful and serious act of pollution in the territorial sea. Even after that it may contradicts with Article 230(2) of UNCLOS which obliges member states to respect all recognized rights of the accused recognized in the legal proceedings.
Sections 14 and 15 of the draft MEC Act provide for necessary equipment in ships to prevent pollution and to deal with pollution incidents. Ships which are not complying with the equipment provisions may be detained. The draft MEC Act prohibits transfer of oil and other pollutants without requisite notice. Moreover, the owner, master, agent, and the occupier of the ship are bound to report discharge of oil and other pollutants to the concerned authorities. These provisions seem to be sound and may play a significant role to prevent marine pollution if properly enforced. The proposed Act does not precisely define the term ‘necessary equipment’, but the director general of the Department of Shipping may frame necessary rules for ensuring that all vessels must be fitted with the necessary equipment listed in MARPOL and other IMO marine environment related conventions.
The draft MEC Act grants the port authorities power to provide reception facilities for oil and other pollutants. The port authority may collaborate with or appoint private parties to provide such facilities. The port authority or authorized person can impose reasonable charges for the service. This is a very good provision which will open the door for private sector investment for reception facilities.
The draft MEC Act is largely in conformity with MARPOL, but there are certainly some inconsistencies with international regulations dealing with the civil and criminal liability of marine pollution damages as well as with UNCLOS. For example, the draft MEC Act makes provision for the recovery of clean-up costs from the ship owner in the form of a fine, but at the same time it imposes civil liability for the same purpose. This approach undoubtedly violates the principle of natural justice.
