Open seas pollution needs a better regulation regime

Updated: 2012-11-21 07:18

By Andrew Mak(HK Edition)

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Open seas pollution needs a better regulation regime

The protection of the environment is a regular topic in the media. Recent events remind us that the costs of pollution on the open seas have escalated to a scale that must draw serious attention.

The Deepwater Horizon oil rig disaster in April 2010 was the world's largest-ever accidental offshore oil spill. Not so long ago Hong Kong had an incident on a smaller scale. Nonetheless, it drew serious concern of the local community. In August, hundreds of millions of plastic pellets washed up on Hong Kong beaches. Six shipping containers were knocked off from a freighter during Typhoon Vicente, spilling 150 metric tons of the pellets known as nurdles. These pellets are the raw material used to make many plastic products like shopping bags and bubble wrap.

The current state of the law on pollution due to "disposal" of such waste is limited. The control and regulation over the spread of pollution is governed by either criminal sanctions on certain extreme case, or civil actions for negligence, nuisance, and the legal principle commonly known as Ryland v Fletcher, which means that you should not have dangerous things escape to other people's land.

The problem with the law at the moment is that there are no comprehensive regulatory rules for all kinds of waste disposals. This ought to be looked at on an international scale to foster a clean and sustainable environment.

Secondly, we do not have an international convention that can be plugged in to waste disposal generally. Hazardous materials such as nuclear waste and oil apart, little attention is put on common wastes but on those which are non-biodegradable. Government agencies are restricted in their powers and priority because of the interplay of politics and the political agenda of the day. Education is often regarded as a panacea. But education is not enough and often too slow to have immediate effect.

The delay of the current approach to environmental protection has seen very costly to even corporations as large as the infallible BP. In Hong Kong, we saw the embarrassment over the lack of prompt coordination among government departments, including the Marine and the Environmental Department to handle the matter, merely because the source of pollution was not in Hong Kong waters.

It is not to say these departments in the territory were incompetent. Rather it is the lack of any policy through international agreement for handling relatively non-toxic wastes. The green groups such as the Green Peace had for years been looking at nuclear waste and health hazardous materials. To a large degree their efforts have been successful in promoting the London Convention (1972). The convention covers the deliberate disposal of wastes at sea, including those by shipping vessels, aircraft, and platforms.

However, the London Convention does not cover acts which are not deliberate. Further, discharges from land-based sources providing such disposal not contrary to the aims of the Convention are apparently not covered. Negligent acts for relatively non-toxic wastes are not covered. This gives rise to uncertainty on what should be covered. Oil, nuclear wastes, hazardous (including liquids) substances, and sewage are no doubt covered. But it is questionable on other things.

We then have the International Marine Organization (IMO) which adopted the International convention for the prevention of marine pollution by ships (MARPOL 73/78). The convention is supposed to deal with all forms of pollution of the sea from ships. However, the detailed contents of the provisions, if they are indeed comprehensive at all, make one wonder why our Marine Department was not able to respond by reference to any breach of those provisions in the August incident. The usefulness of the application of the MARPOL 73/78 is doubtful in such incidents. We need something more comprehensive but at the same time simple enough to be understood by the public.

In 1972 the concern over international marine dumping was different. We had 3.8 billion people then. Today we have over 6.9 billion people. Ships are growing larger and larger. About 85,000 ships of more than 100 tons are in operation around the world. The implication of increasing trade volume and transport throughput is therefore enormous. Waste disposal and risks of accidents on a disastrous scale make the London Convention outdated. It is now time that the international community, including Hong Kong, advocates for a more comprehensive open seas pollution regulation regime.

The author is a HK barrister and chairman of the Hong Kong Bar's Special Committee on Planning and Policy.

(HK Edition 11/21/2012 page3)