MARINE ENVIRONMENT LAWS IN MARINE ENVIRONMENT LAWS IN MALAYSIAMALAYSIA

DEVELOPMENT AND DEVELOPMENT AND COMPLIANCECOMPLIANCE

Outline of PresentationOutline of Presentation

•• IntroductionIntroduction•• Objectives of StudyObjectives of Study•• MethodologyMethodology•• Development of Marine Environment Laws Development of Marine Environment Laws

in Malaysiain Malaysia•• Compliance with Marine Environment Laws Compliance with Marine Environment Laws

in Malaysiain Malaysia•• ConclusionsConclusions

Introduction Introduction –– Environmental LawEnvironmental Law•• Body of international convention, domestic statutes Body of international convention, domestic statutes

or laws, state or provincial ordinances and local or laws, state or provincial ordinances and local government bylaws that govern human activities government bylaws that govern human activities which impact the environment.which impact the environment.

•• Established to:Established to:-- avoid tragedy of the commonsavoid tragedy of the commons-- eliminate free riders in environmental eliminate free riders in environmental

protection and control of pollutionprotection and control of pollution•• And in response to:And in response to:

-- the growing development of environmental the growing development of environmental ethicsethics

-- the changing requirement of international lawthe changing requirement of international law•• Tool for implementing policiesTool for implementing policies

Objectives of StudyObjectives of Study

•• Examine marine environment laws in Examine marine environment laws in Malaysia in terms of its development and Malaysia in terms of its development and its coverage;its coverage;

•• Assess the level of compliance with marine Assess the level of compliance with marine environment laws in Malaysia and what it environment laws in Malaysia and what it means in terms of environmental means in terms of environmental management; andmanagement; and

•• Identify means to promote compliance Identify means to promote compliance with environmental laws.with environmental laws.

Research QuestionsResearch Questions

•• How has marine environmental law in How has marine environmental law in Malaysia changed over the years?Malaysia changed over the years?

•• Are our laws adequate in dealing with Are our laws adequate in dealing with marine environment issues? marine environment issues?

•• What is the level of compliance with our What is the level of compliance with our marine environment laws? marine environment laws?

•• Can the compliance level be improved? Can the compliance level be improved? •• What are the factors which drive What are the factors which drive

environmental law development in environmental law development in Malaysia?Malaysia?

MethodologyMethodology

•• Identification of the legal framework Identification of the legal framework specifically the laws that are applicable specifically the laws that are applicable and the extent of their coverage;and the extent of their coverage;

•• Historical analysis;Historical analysis;•• Review MalaysiaReview Malaysia’’s involvement in s involvement in

international, regional and subinternational, regional and sub--regional regional treaties; andtreaties; and

•• Examine compliance issues.Examine compliance issues.•• Not a Not a ‘‘laundrylaundry--listlist’’..•• Encompass Encompass ‘‘brownbrown’’ and and ‘‘greengreen’’ laws.laws.

Development of Marine Development of Marine Environment Laws in MalaysiaEnvironment Laws in Malaysia

OverviewOverview•• Early environmental protection laws in Early environmental protection laws in

Malaysia were established by the colonial Malaysia were established by the colonial authorities to protect productive forested authorities to protect productive forested areas and establish areas and establish ‘‘gamegame’’ or wildlife or wildlife reserves.reserves.

•• Has changed since then.Has changed since then.•• Need to continuously adapt to changing Need to continuously adapt to changing

conditions.conditions.

Development of Marine Environment Laws in Development of Marine Environment Laws in Malaysia: LandMalaysia: Land--Based Pollution LawsBased Pollution Laws

•• Close correlation between economic focus and Close correlation between economic focus and landland--based pollution laws.based pollution laws.

•• 3 observable phases3 observable phases-- rubber and palm oilrubber and palm oil-- electronic and manufacturingelectronic and manufacturing-- development controldevelopment control

•• Compliance level high.Compliance level high.•• Innovative approaches used.Innovative approaches used.

Pollution ControlPollution Control•• 3 main sources.3 main sources.•• Levels of regulation vary:Levels of regulation vary:

Industrial = Industrial = HighHighDomestic/Municipal = Domestic/Municipal = MediumMediumNonNon--point (agriculture) = point (agriculture) = LowLow

Development controlDevelopment control•• EIA basedEIA based•• Pioneer in the regionPioneer in the region•• A few test casesA few test cases•• Compliance an issueCompliance an issue

Development of Marine Environment Laws in Development of Marine Environment Laws in Malaysia: VesselMalaysia: Vessel--Based Pollution LawsBased Pollution Laws

•• Laws have been in force since 1974 (EQA) and Laws have been in force since 1974 (EQA) and 1984 (EEZ Act).1984 (EEZ Act).

•• Penalties increased in response to spate of Penalties increased in response to spate of pollution incidents in early 1990s.pollution incidents in early 1990s.

•• ““Fine not exceeding five hundred thousand Fine not exceeding five hundred thousand ringgitringgit or to imprisonment nor exceeding five or to imprisonment nor exceeding five years or to bothyears or to both”” under sections 27 and 29 of under sections 27 and 29 of EQA.EQA.

•• Fine Fine ““not exceeding one million not exceeding one million ringgitringgit”” under under EEZ Act.EEZ Act.

•• Includes provisions for detention of vessels and Includes provisions for detention of vessels and posting of bonds.posting of bonds.

•• Increased penalty and strict enforcement has Increased penalty and strict enforcement has reduced incidents.reduced incidents.

•• Prosecution of cases however low.Prosecution of cases however low.Prosecution of Vessels Caught Polluting Malaysian Waters under Section 27 of the EQA, 2001 - 2003

1220031102002172001

Actual Prosecution

Number of Illegal discharges

Year

Development of Marine Environment Development of Marine Environment Laws in Malaysia: Fisheries Laws in Malaysia: Fisheries

•• Legal framework since 1963, new act in 1985.Legal framework since 1963, new act in 1985.•• Changes in fisheries laws corresponds to changes Changes in fisheries laws corresponds to changes

in fisheries technology.in fisheries technology.•• Based primarily on Based primarily on zonationzonation system and control of system and control of

gear.gear.•• Laws targeted specifically at controlling trawlers.Laws targeted specifically at controlling trawlers.•• Fisheries act also regulates foreign vessels.Fisheries act also regulates foreign vessels.•• Violation of Violation of zonationzonation system most common system most common

problem.problem.•• Pockets of violators.Pockets of violators.

Development of Marine Environment Laws in Development of Marine Environment Laws in Malaysia: Ecosystems and Species Malaysia: Ecosystems and Species

•• Regulation to establish Marine Parks in Regulation to establish Marine Parks in 1994.1994.

•• Fisheries Protected Area and Fisheries Fisheries Protected Area and Fisheries Prohibited Area were also established.Prohibited Area were also established.

•• Marine Parks are Marine Parks are ‘‘nono--taketake’’ zones.zones.•• Controversies occur over development in Controversies occur over development in

Marine Parks.Marine Parks.•• 1999 amendment to Fisheries Act 1999 amendment to Fisheries Act •• provides protection to endangered provides protection to endangered

species species –– dugongs, whale sharks, dugongs, whale sharks, dolphins and giant clams.dolphins and giant clams.

Development of Marine Environment Laws in Development of Marine Environment Laws in Malaysia: Impact of international LawMalaysia: Impact of international Law

•• Nine international conventions and one nonNine international conventions and one non--legal instrument.legal instrument.

•• MixedMixed--bag of experience.bag of experience.•• successful incorporation of the conventions into successful incorporation of the conventions into

national laws and national laws and programmesprogrammes but there are but there are still gaps.still gaps.

Status of Implementation of International Environmental Protection Treaties in Malaysia[i]

Enabling instruments include the National Policy on Biological Diversity, Wildlife Protection Act and Fisheries Act.

24.6.1994United Nations Convention on Biological Diversity, 1982 (UNCBD)

Ongoing programmes.13.7.1994United Nations Framework Convention on Climate Change, 1992 (UNFCC)

Enabling legislation is the Environmental Quality Act, 1978.

8.10.1993 (a)

Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal, 1989 (Basel Convention)

Programmes to replace CFC-based substances are ongoing.

29.8.1989Montreal Protocol on Substances that Deplete the Ozone Layer, 1987 (Montreal Protocol)

Enabling legislation includes Exclusive Economic Act, 1984 and the Fisheries Act, 1985.

14.10.1996United Nations Convention on the Law of the Sea (UNCLOS)

Merchant Shipping (Oil Pollution Act), 199428.1.1997(a)

International Convention for the Prevention of Pollution from Ships, 1973 as amended by the Protocol of 1978 (MARPOL 73/78)

National instrument of implementation is the Wildlife Protection Act, 1972.

20.10.1977International Convention on the Trade in Endangered Species of World Flora and Fauna, 1973 (CITES Convention)

One terrestrial site has been declared a World Heritage Area but no marine site yet.

7.12.1988Convention on the Protection of World Cultural and Natural Heritage, 1972 (World Heritage Convention)

Malaysia has gazetted a number of RAMSAR sites including mangroves and other wetlands

20.12.1994(a)

Convention on the Protection of Wetlands of International Importance especially for Waterfowl Habitat, 1971 (RAMSAR Convention)

Status ofImplementation

Date of Accession

Treaty

How Has Marine Environment Laws in How Has Marine Environment Laws in Malaysia DevelopedMalaysia Developed

PressurePressure StateState ResponseResponse1.Pollution1.Pollution Water quality decline Water quality decline EQAEQA

2. Trawlers2. Trawlers Decline in catchDecline in catch Fisheries ActFisheries ActConflictConflictResource threatenedResource threatened

3. Deaths of Decline in Biodiversity3. Deaths of Decline in Biodiversity 1999 1999 EndangeredEndangered AmendmentAmendmentSpeciesSpecies

Marine Environment Laws in Malaysia:Marine Environment Laws in Malaysia:Compliance and Enforcement IssuesCompliance and Enforcement Issues

•• Statistically, the picture is good.Statistically, the picture is good.•• However, statistics give only a However, statistics give only a ‘‘linearlinear’’ picture.picture.•• In reality enforcement and compliance are In reality enforcement and compliance are

complex.complex.•• Experience shows that stringent laws and Experience shows that stringent laws and

strong enforcement works.strong enforcement works.•• However, perennial pockets of nonHowever, perennial pockets of non--compliance compliance

remains.remains.

•• LandLand--based pollution based pollution –– nonnon--compliance in some compliance in some industrial sectors.industrial sectors.

•• VesselVessel--based pollution based pollution –– strict enforcement strict enforcement works.works.

•• Fisheries Fisheries –– nonnon--compliance with specific parts compliance with specific parts of the act e.g., licensing conditions, fish of the act e.g., licensing conditions, fish bombing, encroachment.bombing, encroachment.

Figure 2. Violation of the Fisheries Act by Local Fishermen1997 - 2005

0100200300400500600700800

1997 1998 1999 2000 2001 2002 2003 2004 2005Year

Tota

l

Violation of license condition Vessels operating without licenceUnlicenced gear Violation of cockle regulationsImporting/Exporting of fish without permit" Violation of Marine Park regulationsDiscovery of nets

Table 6. Number of Fish Bombing Cases Prosecuted Under Section 26(1) of the Fisheries Act, 1985 (1995 –

2002)

588Total

412002

942001

932000

931999

761998

631997

481996

801995

Number of CasesYear

Source: Department of Fisheries, Sabah. 2003.

What Influences ComplianceWhat Influences Compliance

•• Level of enforcement.Level of enforcement.•• Social.Social.•• BehaviouralBehavioural..•• Cultural.Cultural.•• Legitimacy of the authority.Legitimacy of the authority.•• EconomicsEconomics

•• Traditional enforcement has a significant role in Traditional enforcement has a significant role in compliance but is expensive.compliance but is expensive.

•• Economic gains often dictate compliance Economic gains often dictate compliance behaviourbehaviour::–– cost of noncost of non--compliance vs. probability of compliance vs. probability of

getting caughtgetting caught-- financial gains vs. compoundsfinancial gains vs. compounds-- other inconveniences (detention)other inconveniences (detention)

•• In fisheries management worldwide chances of In fisheries management worldwide chances of getting caught is getting caught is less than 1 %less than 1 %..

The Compliance Decision in Fisheries

NormativeInfluences

SocialInfluences

InstrumentalInfluences

EconomicYield

Effectiveness ofEnforcement

Legitimacy of Management

Regime

Fairness of the Outcomes

Behaviour of Others Personal Morals

ResourceStatus

RegulatoryComplexity

Geography

Agency Council Effectiveness Equity

Penalty

Frequency

Type

Value ofBycatch

Level of Overcapacity

Market influences

External influences

Credibility of Science Practicality

ConclusionsConclusions•• Development of marine environment laws in Malaysia Development of marine environment laws in Malaysia

has been tremendous.has been tremendous.•• Marine environment laws in Malaysia has developed in Marine environment laws in Malaysia has developed in

response to pressures on the environment.response to pressures on the environment.•• Compliance is complex and involve many factors. Compliance is complex and involve many factors. •• Compliance good overall but pockets of longCompliance good overall but pockets of long--term term

nonnon--compliance remain.compliance remain.•• Targeted compliance needed to address longTargeted compliance needed to address long--term term

problems.problems.•• New laws or amendments should consider compliance New laws or amendments should consider compliance

as an issue.as an issue.

Thank YouThank You