Seaweed and Mangrove Issues from International Law

Perspective

Prof. Dr. Abdul Ghafur HamidInternational Islamic University Malaysia

Workshop on Marine Environment Pollution30 October 2012, Attorney General’s Chambers,

Putra Jaya

Contents

1. Introduction2. Seaweed farming and international

law3. Mangrove forests and international

law4. From international law to national

laws and policies5. Conclusion

1. Introduction

Since Malaysia is a coastal State with invaluable mangroves and atolls and coastal areas, surrounded by resource-rich seas, to make the Malaysian maritime areas to be clean and pollution-free is a matter of grave concern for the country.

The two main issues:(1)Seaweed farming;(2)Mangrove forests.

2. Seaweed farming and international law

There is no specific international convention that governs seaweed farming.

The only convention that lays down general international obligations on States in relation to the protection of the marine environment is the UN Convention on the Law of the Sea (UNCLOS) 1982.

164 States parties. Malaysia is a party since 14 October

1996.

Malaysia’s obligations under UNCLOS 1982

to protect and preserve the marine environment (Art 192);

to exploit its natural resources with sound environmental policies (Art 193);

to take all measures necessary to prevent, reduce and control pollution of the marine environment, using the ‘best practicable means’ (Art 194(1);

to ensure that activities under its jurisdiction are so conducted as not to cause damage by pollution to other States and their environment (Art 194(2); Trail Smelter Arbitration;

Malaysia’s obligations under UNCLOS 1982 (Cont.)

to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life (Art 194(3).

to prevent the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto (Art 196(1).

To carry out “environmental impact assessment” of activities under its jurisdiction or control (Arts 204-206).

Environmental concerns of seaweed farming

To comply with the requirement of ‘not to threaten the protection and preservation of marine environment;

to ensure that seaweed farming does not have adverse effect on rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life;

To make sure that seaweed aquaculture does not involve introduction of new or alien species to the marine environment.

2. Protection and preservation of Mangrove forests and

international law Malaysia is a signatory to various international

forest-related agreements which includes:

(1) Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention);

(2) Convention on Biological Diversity (CBD);

(3) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES);

(4) United Nation Framework Convention on Climate Change (UNFCCC); and

(5) United Nations Forum on Forests (UNFF).

Convention on Wetlands of International Importance especially

as Waterfowl Habitat (Ramsar Convention), 1971

Number of Contracting Parties: 163 Number of sites designated for the

Ramsar List: 2,062

The Ramsar mission

The conservation and wise use of all

wetlands through local and national actions and international cooperation, as a contribution towards achieving sustainable development throughout the world.

The Wise Use concept

The wise use is defined as "the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development".

"Wise use" therefore has at its heart the conservation and sustainable use of wetlands and their resources, for the benefit of humankind. 

What do Contracting Parties do?

The "three pillars" of the Convention: To work towards the wise use of all their

wetlands through national land-use planning, appropriate policies and legislation;

To designate suitable wetlands for the List of Wetlands of International Importance ("Ramsar List") and ensure their effective management; and

To cooperate internationally concerning transboundary wetlands, shared wetland systems, shared species, and development projects that may affect wetlands.

Ramsar List

Wetlands included in the List acquire a new status at the national level and are recognized by the international community as being of significant value not only for the country, or the countries, in which they are located, but for humanity as a whole.

Malaysia and Ramsar Convention

The Convention on Wetlands came into force for Malaysia on 10 March 1995.

As a party to the Ramsar Convention, Malaysia undertook to promote wise use and conservation of wetlands and establish nature reserves in wetlands and designate areas as Ramsar sites.

Malaysia presently has 6 sites designated as Wetlands of International Importance, with a surface area of 134,158 hectares.

Malaysia: 6 Ramsar Sites

Name of Ramsar site State Date Size

Lower Kinabatangan-Segama Wetland

Sabah 28/10/08 78,803 ha

Kuching Wetlands National Park

Sarawak

08/11/05 6,610 ha

Pulau Kukup Johor 31/01/03 647 ha

Sungai Pulai Johor 31/01/03 9,126 ha

Tanjung Piai Johor 31/01/03 526 ha

Tasek Bera Pahang

10/11/94 38,446 ha

Convention on Biological Diversity

193 States parties Malaysia is a party since 24-06-1994.

Article 6.

General Measures for Conservation and Sustainable Use

Each Contracting Party shall…:

(a) Develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity…; and

(b) Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

Adopted on 03-03-1973; entered into force on 01-07-1975.

176 States parties. Malaysia is a party since 18-01-1978. Appendix I includes all species

threatened with extinction which are or may be affected by trade. Trade in specimens of these species must be subject to particularly strict regulation.

4. From international law to national laws and policies

Malaysia is a party to a number of international environmental conventions, which lay down important rules to be followed by states parties.

As a party, it is obligatory for Malaysia to perform these conventions in good faith and make its national laws to be in conformity with these conventions.

Malaysian laws on marine pollution and enforcement

There are four laws (EQA, MSO, MSOPA, and EEZ Act) that regulate marine pollution in Malaysia.

As far as enforcement is concerned, they are supplemented by MMEA Act.

MMEA can exercise enforcement powers within the “Malaysian Maritime Zone”, which includes “the internal waters, territorial sea, continental shelf, exclusive economic zone and the Malaysian fisheries waters”.

(2) Seaweed farming and the Fisheries Act

The relevant law In respect of ‘seaweed farming’ is the Fisheries Act 1985.

The Fisheries Act define ‘fish’ to include “any aquatic animal or plant life”.

It therefore appears that seaweed may fall within the meaning of ‘fish’ under the Fisheries Act.

The Fisheries Act is applicable within the “Malaysian fisheries waters” which include the internal waters and the territorial sea of Malaysia.

Seaweed farming and the Fisheries Act

[Cont.] Seaweed farming can therefore

possibly be governed by the Fisheries Act.

What we need is to adopt a new “Fisheries (Seaweed Farming) Regulations” under s. 61 of the Fisheries Act to regulate seaweed farming in Malaysia.

We can take lessons from the experience and best practices of countries like Philippines and Japan.

(2) Mangrove forests

The management of all type of forests including mangrove forests is enshrined in the National Forestry Policy 1978 (revised 1992) (NFP).

The NFP was approved by the National Forestry Council in 1977, and later endorsed by the National Land Council in 1978.

The Policy lists effective conservation and management of natural forest ecosystems, including the mangroves.

Legislation touching upon mangrove forests

This commitment is duly recognized and given specific attention by the National Forestry Act 1984 (NFA).

The Act provides the legislative backing to the policy and affirms the full protection of the mangrove forests.

Besides these policies and legislation, there are other Federal legislations which complement and support the policies on land use matter. These include:

(1) Land Conservation Act 1960;

(2) Protection of Wildlife Act 1972;

(3) National Park Act 1980; and

(4) Environmental Quality Act 1974.

The need for specific provisions for the protection and preservation of

mangroves It is necessary to ensure that our

mangrove resources are sustainably managed, utilized and preserved for the benefits of present and future generations.

The protection and preservation of mangrove forests need integrated cooperation among the various government agencies.

Although we have National Forestry Act 1984, It is proposed that it should be amended to include specific provisions for the protection and preservation of mangroves.

Thank you for your kind attention