News
Grey areas in SL law hamper implementation of marine pollution convention: NAO report
Despite several major naval accidents that have caused severe marine environmental pollution in the country’s territorial waters, Sri Lanka has still not taken steps to introduce legislation required to fully implement a key international marine pollution prevention convention it signed more than two decades ago, a report by the National Audit Office (NAO) shows.
The International Convention for the Prevention of Pollution from Ships, known as the MARPOL Convention, was adopted by the International Maritime Organization (IMO) in 1973 and modified by a Protocol in 1978. It aims to prevent and minimise pollution during normal shipping operations or in the event of a shipwreck. The Convention, which currently has 156 signatories, is divided into six different annexures adopted over the years containing regulations to prevent pollution from oil, large amounts of harmful liquids, harmful substances packed and transported through the ocean, sewage disposal by ships, waste disposed from ships and air pollution caused by ships.
X-Press Pearl caught fire off the coast of Colombo on May 20
Sri Lanka signed as a party to the convention on July 24, 1997 and has enforced five of the six annexures so far. While Annexure VI (Regulations to prevent air pollution from ships) has been approved by Cabinet, action had still not been taken to enforce it at the time of audit.
The NAO has observed that the Marine Pollution Prevention Act No 35 of 2008, which was enacted for the protection of the marine environment, has not added to the legislation required to fully implement the MARPOL Convention by incorporating its provisions into domestic law.
The 2008 Marine Pollution Prevention Act replaced the Prevention of Marine Pollution Act No. 59 of 1981, which specifically covered the International Convention of 1973 for the prevention of pollution of ships and the Alliance of 1978 for the implementation of the international convention. While the 1981 Act explicitly stated that it covers the 1973 Convention and 1978 Protocol, this reference had been omitted from the 2008 Act, the NAO observed. Section 6 (f) of the new Act only stipulates the acceptance and recommendation of international conventions and relevant protocols. This has created a legal grey area that has made it difficult to obtain specific compensation, the report states. “It is imperative that the Act be amended to deal with hazardous container shipments. It was observed that in such a case there may be difficulties in recovering losses in the event of an accident.”
It has further pointed out that a national policy has not been formulated in Sri Lanka on how to prevent maritime pollution by ships.
The report also notes that while several state institutions such as the Merchant Shipping Secretariat and Marine Environment Protection Authority (MEPA) have taken steps to implement provisions of the technical annexures of the Convention through the provisions of existing Acts, there is no single specific body in the local mechanism responsible for the implementation of all existing technical attachments of the Convention in Sri Lanka.
The NAO has identified several other issues in the enforcement of the Convention and detection of violations. The report points out that the practical measurement methods currently in operation in Sri Lanka are insufficient to collect and report evidence. It also stressed that the legal framework in Sri Lanka needs to be further strengthened to take action against any vessel that has discharged harmful material or violated the terms of
the Convention.
Sri Lanka is also not a party to the Salvage Convention, meaning that it cannot be listed as a contractual salvor when involved in the rescue of a ship in the event of a shipwreck. Being a contractual salvor would enable the country to cover the cost of rescue operations and hull and machinery insurance. The report remarks that the inclusion of provisions in future plans for Sri Lanka to act as statutory arbitrator in accordance with the provisions of the Merchant Shipping Act had not been acted upon.
MEPA is the “national hub” of the coastal state for the implementation of the MARPOL Convention in Sri Lanka. The NAO report points out that the line ministry of the authority has changed on seven occasions at the time of audit (this has now become eight since then as MEPA has now been placed under the State Ministry of Coast Conservation & Low-Lying Lands Development). It has been observed that such frequent changes in line ministries belonging to the authority may in some cases lead to operational problems and coordination issues.
The report has recommended giving special priority to the implementation of the legal provisions locally for establishing MARPOL Convention and to establish and legislate on the implementation of the Convention, with specific identification of institutions for the implementation of such laws. Other key recommendations in the report include taking action to make Sri Lanka an active member of the international Maritime Organization (IMO), considering the potential to act as a statutory salvage and focus on the potential for setting up such industries for search and rescue, as well as improving human and physical facilities required for institutional strength. The NAO has also recommended looking into setting up a 24/7 operation centre for expeditious action in the event of maritime accidents and disasters and expediting the formulation and legalization for the compensation of marine damages.
| Progress being made, says MEPA Chairperson MEPA Chairperson Dharshani Lahandapura acknowledged that much needed to be done to amend local legislation in line with international conventions. She however, stressed that progress has been made. “We have carried out a comprehensive review of the Marine Pollution Prevention Act and identified Conventions and Protocols we need to be a party to,” Ms Lahandapura said, adding that there were eight or nine such Conventions and Protocols that Sri Lanka needed to bring itself in line with. A three-member committee of experts is currently studying the amendment that MEPA has proposed containing a series of legislative changes. Ms Lahandapura said she was hopeful that once the recommendations of the expert panel have come in, they would be able to submit the relevant amendment for Cabinet approval soon. | |