Concerns deeper than the Ocean

 

Life is believed to have started in the oceans. Oceans are described by scientists as the origin of life being an island nation, the ocean is never too far from us and our lives are very much linked to it. We know the beauty as well as bounty the ocean brings us. The World Oceans Day being June 8 conceived and adopted in 1982 at the Earth Summit held in Rio De Janeiro, Brazil gives an opportunity to recognize the importance of the underwater world. The law and the institutions of justice are pillars of stability in our communities, it is vital that, they remain strong and relevant in times of crisis too.

Coastal and marine resources

Sri Lanka is a small island in the Indian Ocean with a coastline of about 1,760 km. The ‘territorial limits’ of the island extend to 12 miles (19.2 km) offshore, beyond which lies the ‘contiguous zone’ under the provisions of the UN Law of the Sea. Sri Lanka has jurisdiction over an Exclusive Economic Zone (EEZ) which extends 200 nautical miles outwards from the shoreline and covers an area of over 230 000 km2 of the ocean. Along its coast line are a variety of ecosystems which include sandy beaches, rocky shores, lagoons and estuaries, mangrove stands, salt marshes and sand dunes. In the shallow waters off the coastline are found sea grass beds, coral growths and coral reefs. The other coastal ecosystems of significant importance are the mangroves and coastal wetlands. They serve as habitats for a large number of commercially important species, as food producers, run-off retainers, salt traps, water purifiers and as coastal stabilizers. Mangroves are among the few woody plants which can tolerate the undiluted salinity of the open sea. The seas overlying the Continental shelf are referred to as coastal. They support our coastal fisheries, which are the main source of marine fish production. Beyond the edge of the continental shelf is the ‘continental slope’, which descends rather steeply to the floor of the deep ocean. The waters beyond the continental edge form our ‘offshore’ ocean waters.

Marine biological resources include fishery, shrimps, lobster, crash, sea cucumber, economically valuable sea weeds, and a large number of ornamental fish.

International protection

The United Nations Convention on the Law of the Sea was adopted by the third United Nations Conference on the Law of the Sea (UNCLOS III) on April 30, 1982 after lengthy conference negotiations at which 157 Governments took part. On December 10, 1982 the Convention was signed by 119 delegations. The final Convention consisted of a preamble and 445 Articles, divided in to 17 parts and 9 annexes. It can be seen that the Law of the Sea Convention is not restricted to codifying, consolidating and reaffirming the existing international law. In addition, it establishes novel concepts such as the exclusive economic Zone (EEZ), the regime for Archipelagic State and the common heritage of man kind. Article 2 of Part II provides for the breadth of the territorial sea to be up to a limit of 12 nautical miles. Article 46 provided for the establishment of a 200 nautical mile exclusive economic Zone. Article 118 of part II introduced a new concept of Archipelagic baselines, helping to delimit the territorial sea and other zones of Archipelagic States. There are special provisions in Articles 56, 61, 62 and 119 of the UNCLOS III for conservation of the living marine resources. Article 91 of the UNCLOS III is also important concerning the rights and duties of coastal states.

Sri Lanka is a party to the Law of the Sea Convention acceded to by Sri Lanka on December 10, 1982 and exercises jurisdiction over the territorial sea, continental shelf, the exclusive economic zone and the contiguous zone in keeping with the definitions laid down in that convention.

Constitutional protection

Environmental protection has received constitutional recognition in Sri Lanka under 1978 Constitution of Sri Lanka. Chapter VI on Directive Principles of State Policy and Fundamental duties of the 1978 Constitution makes specific reference for promoting environmental well being under Article 27(14). The corresponding duty of a citizen to promote ecological security also finds expression in the Constitution under Article 28. (f)

Under the 13th Amendment enacted in 1987, powers and functions of government are categorized into three lists, namely the Provincial Councils Lists (List 1), the Reserved List (List II), and the Concurrent List (List III). Protection of the environment has been listed as a concurrent subject in List III. This means that Parliament may make laws with respect to the protection of the environment after consultation with all provincial councils, as it seems appropriate. Under List 1, the function of environmental protection within the province is assigned to provincial councils to the extent permitted by or under any law made by the Parliament.

Legislative protection

During the British period in Sri Lanka from 1796 – 1948, they paid some attention to the protection of coastal and marine resources in the country. Accordingly several relevant statutes were enacted. The Crown Lands Ordinance (1947) was enacted amongst other things to provide for the administration and control of inland waters and to define the crown’s rights in what are known as Res Publicae and Res Communes in Roman Dutch Law. The legal position regarding State control over the foreshore must now be ascertained by reference to the Crown Lands Ordinance, the Coast Conservation Act, and other Statutes regulating land use and development.

Since Independence in 1948, successive governments had extensively paid attention towards the protection of coastal and marine resources. National legislation like the Maritime Zones Act No. 22 of 1976, Fisheries and Aquatic Resources Act No. 2 of 1996, Coast Conservation Act No. 57 of 1981, Marine Environment Protection Act 2008 etc., are compatible to a great degree with the international law on the subject introduced by UNCLOS 111.

The Coast Conservation Act also defines foreshore in a slightly modified and specific manner as the ‘area of the shore of the sea between the mean high water and the mean low water mark (Section 42). Nevertheless it does not qualify the provisions of the Crown Lands Ordinance regarding the State’s right to control and manage the seashore and issue permits in respect of it.

It merely affirms that the ‘administration, control, custody and management of the Coastal Zone (a much wider area as defined in section 42 is in the Republic in Sri Lanka’). (Section 2)

The legal position regarding the sea is also a matter for international law. However, today Sri Lankan statutes contain provisions that regulate State rights and interest in respect of the sea. It is useful to briefly refer to the Maritime Zones Law No 22 of 1976 the major legislation that regulates this subject (Sections 11,12) and the Marine Pollution Prevention Act No 59 of 1981. ‘The sea’ for the purposes of our law has been defined by the Marine Pollution Prevention Act as ‘Sri Lankan waters’ (Section 37). This is defined as including specific areas of the sea around the island by the Maritime Zones Law. This law declares the extent of territorial sea and the other maritime Zones of Sri Lanka. It gives President of the Republic the power to declare by the proclamation published in the Gazette the limits of the territorial of sea of Sri Lanka, specifying the base lines from which such limits may be measured. The territorial sea is defined as the sea beyond the land and the internal waters (Section 2 (1)).

The law also provides for a similar declaration of the limits of the contiguous zone, which shall extend seawards from the outer limits of the territorial sea (Section 4). Other areas which can be declared as part of the Sri Lankan waters are ‘the exclusive rconomic zone’, and the pollution prevention zone (an area adjacent to the territorial sea, its sea bed and subsoil.

The Maritime Zones Law vests the State (the Republic of Sri Lanka) with sovereign rights in the territorial sea and its bed and subsoil. (Section 2(3)). This includes the air space above the territorial sea. The State is vested with rights over the all natural resources within exclusive economic zone. It has also exclusive right to control scientific research in this area and in regard to construction, maintenance and operation of scientific devices that are necessary for exploring and exploiting the resources of this zone or for any other purpose. It has the sovereign rights of economic use and the right to explore, exploit conserve and manage the natural resources of this zone (Section 5)2)(3)). Similar rights have been vested in regard to the continental shelf. (Section 6).

The Coast Conservation Act No 57 of 1981 by its Section 2 places the administration, control, custody and management of the coastal zone in the hands of the state. The Coast Conservation Department is the agency with authority over the coastal zone. The coastal zone is the area lying within 300 m landwards of the mean high water line and the area within 2 km seawards of the mean low water line. In the case of water bodies connected to the sea, the landwards boundary extends 2 km from the natural entrance points. (Section 42).

The Coast Conservation Act No 57 of 1981 and its amended Act No. 64 of 1988 prohibits any person to engage in a development activity within the coastal zone, unless such person is authorized by a permit issued by the Director of Coast Conservation. Section 6 of the Act provides for the appointment of a Coast Conservation Advisory Council mandated with advising the Minister of Fisheries on all development activities proposed to be commenced in the coastal zone, reviewing the Coastal Zone Management Plan (CZMP) and forwarding recommendations to the Director/ Coast Conservation.

The Marine Pollution Prevention Authority (MPPA) was established by the Marine Pollution Prevention Act No 59 of 1981. The purpose of this Act is to give effect to the several international conventions of marine pollution and civil and criminal liability to which Sri Lanka has become a signatory. The MPPA has authority over Sri Lanka waters which includes the territorial sea, contiguous zone, the exclusive economic zone, the continental shelf and pollution prevention zone as defined in the Maritime Zones Law No 22 of 1976.

The Marine Pollution Prevention Act No 59 of 1981 gives effect to the following five International Conventions:

1. The International Convention on the Prevention of Pollution of the Sea by Oil 1954, as amended;

2. The International Convention on Civil Liability for Oil Pollution Damage, 1969;

3. The International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971;

4.The International Convention relating to Intervention on the High Seas in Case of Oil Pollution Casualties, 1969; and

5. The International Convention for the Prevention of Pollution from Ships, 1972 and the Protocol of 1978.

National Aquatic Research Development Agency (NARA) has been established under the Act No.54 of 1981 for development of marine resources and it handles research and some aspects of development of this subject. This is a comprehensive Act with regard to Fisheries Regulations made in 1941and 1981. National Aqua Culture Development Authority was established under the Act No. 55 of 1998.

Fauna and Flora Protection (Amendment) Act, No 49 of 1993 Provides for six categories of protect areas – among which are a marine sanctuary and natural reserve. Fisheries and Aquatic Resources Act No 2 of 1996 provides for the management and regulation of fisheries and aquatic resources in Sri Lanka and its repeals the Fisheries Ordinance No 24 of 1940, the Chank Fisheries Act No. 08 of 1953, Perl fisheries Ordinance No 2 of 1925 and the Whaling Ordinance of No. 02 of 1936.

The Marine Environment Protection Authority Act of 2008 provides for the prevention, reduction and control of pollution in Sri Lankan territorial sea, coastal areas as well as other sea areas.

The Act established the Marine Environment Protection Authority as a Regulatory body to administer the Act. The Coast Guard Department established under the Coast Guard Act No. 14 of 2009 is to implement the laws of the land and international laws on the territorial waters of Sri Lanka.

 

Issues and remedies

Toxic materials entering coastal areas and territorial and seas result in coastal erosion and destruction of fish nursery areas. Hence, the global marine environment in the territorial sea is increasingly threatened by inter alia, over fishing, global climate change, habitat modification and destruction of it.

Sea erosion induced by river sand mining, and population pressure resulting from more people finding livelihoods and employment in coastal areas, as well as a booming tourist industry that has exceeded the carrying capacity in several locations causing extensive damage to the critical ecosystems, have led to substantial lowering of the protective and buffering capacity of the habitats of the coastal zone.

The magnitude of devastation resulting from the tsunami that Sri Lanka and several other Indian Ocean countries experienced awakened authorities, civil society, and all other organised groups to the reality of observing the level of unpreparedness, either to face and mitigate such calamities, or manage an expedient recovery plan.

Coral reefs in the territorial sea should be declared as bio reserves and should be further protected. Strict marine resource laws should be enacted by all tropical countries to prohibit coral reef mining for building or other purposes. The territorial sea bed drilling has a harmful impact on territorial sea marine resources. Therefore territorial sea drilling in sensitive coral reef areas has to be totally banned. Oil tanker shipping routes must be specified to avoid coral reef areas and other marine resources in the territorial sea.

The oil spill is very dangerous to living biological marine resources in the territorial sea. Safety standards of ships, vessels seaworthiness and harbour rules and regulations should be introduced under the Shipping Law and heavy penalties have to be imposed on polluting vessels in the territorial sea areas.

At this stage it should also be pointed out that the scope of State’s rights in the Coastal and Marine resources as well as natural resources of Sri Lanka are not absolute rights. In fact, the President of the Republic of Sri Lanka, being the Head of State of Sri Lanka, serves not as an owner but only as a ‘custodian’ of all natural resources of the country inclusive of coastal and marine resources.

Source : Daily News ( Sri Lanka ) http://dailynews.lk/?q=2016/06/06/features/83773

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