FAKULTI UNDANG-UNDANG
UNIVERSITI KEBANGSAAN MALAYSIA


TOPIC:
To what extent do the domestic laws of Malaysia tackle the problems of :
a. oil spills
b. hazardous and noxious substances in the Straits of Malacca.



Prepared By :
MADAWAN A.NAIR
BEcons(Hons),LLB(Hons)Lond,LLM(UKM),CLP
Advocate & Solicitor
HIGH COURT OF MALAYA.



1. INTRODUCTION
1.1.General - The changing perspective of the sea
The advent of the 21st century has brought about a total shift in our understanding of the vast expanse of water covering the earth – namely the sea. After the second world war , decolonization and nation- building became the central theme of most states in the world. At about the same time, coastal states sought sovereignty and territoriality of the sea.

The UNCLOS convened at Jamaica (on 10.12.82) changed the way spaces in the sea is to be construed. Indonesia and Philippines have changed their identities as nation–states to become archipelagic states. The UNCLOS’s demarcation of contiguous and EEZ zones for coastal sea has also changed the way we think of the sea – it is now a resource to be jealously secured, guarded and managed. It is now a resource with infinite riches for economic growth and sustenance. Complacency and inaction by any coastal state would not only deprive it of enjoying this wealth but could also be disastrous to its economic growth !

1.2. An overview of the Straits of Malacca.
The Straits of Malacca is the narrow body of water flanked by the west coast of Thailand, the north-east coast of Malaysia and the south-west of Sumatra island. It is 520 miles in length and varies in width from 200 miles in the north to 11 miles at the south. Its depth varies from 73 metres to less than 25 metres. Types of vessels that transit the Straits of Malacca are namely oil tanks, container vessels, cargo vessels and other passenger ships. More than 90% of the vessels are destined for Japan, Taiwan, South Korea and Hong Kong.

Furthermore, Malaysia is dependant upon the Straits of Malacca for resources, defence, shipping services, ports, tourism and facilitating external trade. About 139 fishing villages are located here and are dependant upon the fishing industry for its livelihood. Additionally major tourist centres are located along the straits such as Langkawi, Penang, Pangkor, Port Dickson and Malacca.[1]

Despite the presence of the Sunda straits and the Lombok Straits, the vessels still prefer the Straits of Malacca.

1.3.The waters of Straits of Malacca is fast becoming the dump-yard of oil spills, harzardous and noxious substances.
Generally, shipping, dumping, sea-bed activities and land-activities [2] have been identified as the four main sources of marine pollution.

For example ships driven by diesel-engines may discharge some oil with their bilge water and fumes discharged through their funnels into the atmosphere will eventually return to the sea. Similarly, ships using their fuel tanks for ballast water may discharge this oily ballast water into the sea. Furthermore, throwing of garbage overboard or discharging of waste directly in to the sea will also contribute to pollution. This is not an uncommon phenomenon at the Straits of Malacca considering the heavy volume of traffic using it.

Some oil, as well as other noxious cargoes like chemicals, liquid gases and radioactive matter, enter the sea as a result of accidents such as collisions, strandings and explosions. The higher the volume of ships traveling across the Straits of Malacca the greater the risk of such noxious substances entering the sea.

Dumping of waste from land-based activities such as radioactive matter, military materials (obsolete weapons and explosives), dredged materials is another undeniable source of pollution.

Industrial waste, debris and relatively small amount of oily and chemical waste from drilling on the sea-bed for oil and gas are also contributive factors.

Sewage and industrial wastes discharged into the rivers directly enter the sea from the land where they originate. Chemicals such as fertilizers, pesticides and so on aggravate the deplorable state of the Straits of Malacca.

1.4 The costs to Malaysia[3]
An exorbitant bill of costs confronts Malaysia as far as maintenance of pollution is concerned.
The Malaysian government has spent RM34 million to stockpile equipment to combat oil pollution in the Straits of Malacca. The private sector has spent another RM30 million under the auspices of the Petroleum Industry of Malaysia Mutual Aid Group (PIMMAG) and this does not include the cost of training, equipment replacement and manpower development.

Added to this, and unable to quantify, is the opportunity costs to Malaysia resulting from the impact of externalities created by foreign activities in the straits. This includes the destruction to ecosystem, destruction of livelihood of fishermen and the cost of maintaining the marine environment.

The overall costs to the Royal Malaysian Navy to provide hydrographic-related services in the Straits is estimated to have mounted to RM70 million between 1984 and 1993. The irony of the situation is that the hydrographic surveys are integral in navigation of foreign vessels and we bear the cost and suffer in silence !

It is surmised that with this mounting costs for maintenance of the Straits one day it is going to cause a big allocation of the national budget and economic deprivations and funding in other sectors of development shall be forestalled. Therefore the problem is crucial and must be addressed immediately.


1.5 . The international sea laws and the Straits of Malacca.
The UNITED NATIONS CONVENTION OF THE SEA III is the most authoritative and widely ratified international treaty. The Malaysian government has also ratified it.
Article 17 of UNCLOS 111 reads as follows :
“ Subject to this Convention, ships of all States, whether coastal or land-locked enjoy the right of innocent passage through the territorial sea. “
and innocent passage has been defined in Article 19 (1) of UNCLOS 111 as :
“ Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Such passage take place in conformity with this Convention and with other rules of international law. “
In the light of the topic of discussion, it is only glaringly obvious that as far as the Straits of Malacca is concerned we are helpless in curtailing innocent passage despite the fact that the waters is our territorial waters ! Our hands are tied due to the supremacy tenor of the UNCLOS by its perpetrators despite knowing very well it is the foreign vessels that contribute to the marine pollution such as oil spills, hazardous and noxious substances in the Straits.

This high-handedness and aristocratic aloofness is reinforced everywhere. For example, the coastal states cannot even suspend temporarily (if important for the protection of its security ) the right of innocent passage through the straits since it is used for international navigation. And the absurdity is that such rules have been given cognizance and blessed by the International Court of Justice and in Article 16(4) TSC.

On one hand, pollution is despised internationally and yet on the other hand vide conventions and treaties the very pollution is given energy and impetus to grow. This is certainly the irony as far as the international laws governing the Straits of Malacca are concerned. They are the very root and obstacle in preventing pollution by oil spills, hazardous and noxious substances.

2. THE INTERNATIONAL CONVENTIONS AND DOMESTIC LAWS PERTAINING TO POLLUTION BY OIL SPILLS, HAZARDOUS AND NOXIOUS SUBSTANCES.

2.1. OIL SPILLS

Oil spillage is an absolutely pertinent and persisitent problem worth solving. For example, in the accidents involving the Showa Maru (1975), Diego Silang (1976), Maersk Navigator (1993) and Nagasaki Spirit (1992) a lot of oil was spilled. In the first three accidents an estimated 30000 tonnes of oil was spilled into the Straits of Malacca. In the case of Nagasaki Spirit it was 13000 tonnes of oil spillage. Compared with land-based sources, vessel-sourced pollution is one of the more and better internationally regulated areas of marine pollution.[4]

“ Oil ” is defined to mean any persistent oil such as crude oil, fuel oil, heavy diesel oil, lubricating oil and whale oil whether carried on board a ship as cargo or in bunkers of such a ship.[5]
Oil-spillage incurs cleanup cost and is a serious matter. The table below shall highlight the colossal amount of oil spillage and clean-up costs that have been incurred :
Cleanup cost of Major Oil Spills[6]
Showa Maru /Japan/1975
17700 metric tons
RM1250000
Diego Silang/Phillipines/ 1976
5500 metric tons
RM2661732
Nagasaki/Panama/ 1993
13000 metric tons
RM3690093
Others (minor)
13800 metric tons
RM113436

The domestic laws pertaining to oil spills are more often than not are the incorporation of international conventions into national laws, policies and programmes. Some of these are as expounded below to ascertain their effect on the domestic laws.

2.1(a).The empowering conventions, treaties, policies and programmes.

i). MARPOL 73/78

Significant among the conventions attempting to control marine oil pollution have been the International Convention for the prevention of oil Pollution 1954 (OILPOL), International Convention for the Prevention of Pollution from ships 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78). The increasing incidents of sea pollution caused by spillage and discharge of oil and oily mixture from ships are the reason for the MARPOL 73/78 Convention. The incident of Torrey Canyon in 1967 convinced all states to take precautionary steps tp prevent these damages and disasters from happening. Malaysia became party to Annexure I (oil) and II (Noxious Liquid Substances in Bulk) and the optional Annexure V garbage on 31 January 1997.[7] Three months later on 1 May 1997 it came into force.[8]

MARPOL 73/78 covers accidental and operational oil pollution as well as pollution by chemicals, goods in packaged forms, sewage, garbage and air pollution. The Convention does not apply to any warship and state ship being used for non-commercial services but applies to all ships entitled to fly the flag of the parties to the convention but which operate under their authority convention. It also does not cover dumping. Enforcement of the convention will be through laws enacted by the states which have sufficient force of sanction. Violations can:

a). invite the state taking action as per its jurisdictional rules or alternatively
b). the states shall release all information and evidences to the flag ship and on that basis the flag state shall take action. In the latter case, the flag ship will inform the referring state about the actions it has taken.
Other essential features of this convention are:

i). all ships shall hold a certificate of compliance with the convention standards.
ii). In the event of a substantial non-compliance, if evidenced, the port authority of the state party carrying out the inspection must take such steps as necessary to ensure that the ship shall not sail until it can proceed to sea without preventing an unreasonable threat of harm to the marine environment.
iii). Article 6 of the convention requires that all parties shall cooperate in the detection of violations and enforcement of the provisions. The flag state has also been required to initiate legal proceedings as soon as possible for violations of the convention on the basis of sufficient evidence.

Detailed pollution standards were set out in the annexures as indicated below:
1. Annexure 1 (with oil).
2. Annexure 2 (with noxious substances in bulk).
3. Annexure 3 (with harmful substances carried by sea in packaged forms).
4. Annexure 4 (with sewage)
5. Annexure 5 (with garbage) and
6. Annexure 6 (with air pollution).

MARPOL 73/78 has come into force and Malaysia has not ratified it fully . It has for example adopted only Annexures I, II and V. Singapore has already ratified MARPOL 73/78. It is opined that with this ratification, closer cooperation could be exploited among both countries for preventing marine pollution, particularly as regards oil spills, specifically in the Straits of Malacca . Nevertheless, while the MARPOL 73/78 did not directly necessitate the formulation of any domestic laws immediately, its influence have had far -reaching effects and this is undeniable. Upon Malaysia’s ascension to MARPOL 73/78, it immediately mandatory for all local ships to have the Malaysian Oil Pollution Prevention Certificate (M.O.P.P) and the International Oil Pollution Prevention Certificate (I.O.P.P) for International ships.[9]

ii). The International Convention for Civil Liability for Oil Pollution Damage 1969 (CLC Convention) and the 1971 International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention) .
The CLC Convention covers damage from oil escaped or discharged from the sea - going vessels or any seaborne craft. The exceptions are general cargo carriers and bulk carriers other than oil-carriers and tankers on ballast voyage. It fixes liability for damage caused by the oil pollution unless it is caused by the :
a. act of God
b. war
c. civil war hostilities and insurrection.

The amount of damage is limited to 133 SDR (Special Drawing Rights) ( 1 SDR is roughly equal to 13 US dollar) per ton with the maximum of 14,000,000 SDR. The CLC can be enforced by the member countries suffering from oil pollution. The member states are authorized to enforce the treaty law through an appropriate legislation.[10]

To cover the liability beyond the CLC, the Fund Convention was entered into and to make realistic a Protocol was also added to it in 1976. The Fund Convention provided remedy in the cases which are exceptions to the CLC. The fund is generated through statutory contributions from oil companies on imports greater than 150000 tonnes per year on a pro-rata basis. The maximum limit of payment through this fund is up to US $ 45000000 and is subject to constant reviews.

iii). The United Nations Convention on the Law of the Sea
Malaysia ratified the United Nations Convention on the Law of the Sea (UNCLOS) on 14 November 1996. Prior to the submission of the instrument of ratification however, Malaysia has already been implementing the various provisions of UNCLOS through two national laws namely the Exclusive Economic Zone Act 1984 and the Fisheries Act 1985. The EEZ Act is a mirror of Part V of UNCLOS III which governs State jurisdiction in the Exclusive Economic Zone over matters such as marine pollution prevention, management of fisheries resources and the conduct of marine scientific research.

Several avenues as regards marine pollution and matters attendant to it were widened by UNCLOS 111 namely:
· Article 192 LOSC proscribed that it was the general duty to protect & preserve the marine environment from pollution from all sources.
· Article 207 to 234 and 236 LOSC defined the jurisdictional rights and obligations (legislative & enforcement) of flag, coastal and port states.
· Other related art in Part XII (Protection and Preservation of the Marine Environment) deal with principles (art 192-6), global & regional cooperation (art 197-201), technical assistance(art 202-3),
· Articles 204-6 deal with the monitoring and environmental aspects while Article 235 deals with responsibility and liabilities thereof.

Coastal states however have argued for more responsibility to be borne by users of sea areas in the spirit of Article 43 (navigational and safety aids and other improvements and the prevention, reduction and control of pollution) of UNCLOS and the “polluter-pays- principle” [11].

2.1(b). The Domestic Laws pertaining to oil spills

i). The Merchant Shipping (Oil Pollution) Act 1994 (Act 55)
Malaysia is now party to both the International Convention for Civil Liability for Oil Pollution Damage 1969 (CLC Convention) and the 1971 International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention) .

The Act provides the procedure for identifying, investigating and ascertaining any claim. According to section 23 of the Act, the High Court shall have jurisdiction over cases under this Act. It is the Director of Marine (DOM) who is responsible for carrying out all or any of the powers and duties under the Act. The DOM or any authorized officer may arrest any responsible person and detain any ship. The ship may be released only on furnishing the required security.

It is to be noted here that the Merchant Shipping (Oil Pollution) Act 1994 fixes liability for pollution damage caused by a discharge or escape of oil in “any area of Malaysia”. Hence the pertinent itch remains – does this include only the territorial waters or also the exclusive economic zone ? Since the CLC Convention’s scope is not defined it is submitted that the exclusive economic zone is inclusive. However, since the Straits of Malacca only has territorial waters to be concerned with this remains a mere academic opinion irrelevant in the present context though useful elsewhere.

Section 3 of Part II of the Act on Civil Liability for Oil Pollution generally exhorts as thus :
(1).Where as a result of an incident taking place, any oil is discharged or escapes from a ship, the owner of the ship shall except as otherwise provided by this Act be liable for any pollution damage caused by such discharge or escape in any area of Malaysia.
(2). Further, the owner of the ship shall be liable for any pollution damage caused to any area of any other Liability Convention country as a result of any incident specified in subsection (1).
(3). Where oil has been discharged or has escaped from two or more ships, and pollution damage results therefrom, the owners of all the ships, unless exonerated under section 4 shall be jointly and severally liable for all such pollution damage which is not reasonably separable.
(This section is subject to exceptions as provided in section 4).

Section 491C of the Act, inter alia, stipulates the powers of the Director of Marine as thus :
a). to stop and board any ship in the Malaysian waters
b). inspect any permit, license, record, certificate or any other
document, detain such ship including cargo equipments etc
and
c). arrest any person whom he has reason to believe has
committed an offence under this Act. Anyone obstructing him
shall be liable for a fine not exceeding fifty thousand ringgit.

ii). The Exclusive Economic Zone Act 1984 (Act 311)
The Part IV of the Act deals with protection and prevention of the marine environment in the exclusive economic zone and the continental shelf and makes oil pollution, with certain exceptions, an offence liable to a fine not exceeding one million ringgit.

Cases against any offence can be instituted by any “authorized officer” which includes any Fishery Officers, any Port Officer, any Police Officer not below the rank of Sergeant, any Custom Officer, any Officer of the armed forces, any public officer or any other person appointed to be an authorized officer.

The Act provides for the arrest of the responsible persons and also provides for detention of the vessel which can only be released on appropriate security being provided.

Under this Act a prosecution case can be instituted under the Criminal Procedure Code in a Sessions or First Class Magistrate’s court. Also where a damage has been caused to any person or property or to any segment or element of the environment of the exclusive economic zone or continental shelf, compensation can be claimed, and for that, depending on valuations of claims, a case in the appropriate High Court, Sessions Court or Court of a Magistrate of the First Class can be filed.

The Act is certainly a precursor of Part V of the UNCLOS III.


iii). Fisheries Act 1985 (Act 317)
Fishing boats and vessels are powered by diesel-engines and thus pollution of oil into the sea is inevitable. It remains undeniable that most fishing vessels are diesel powered. Hence while they encroach into the Straits for fishing , the diesel-engines may discharge some oil with their bilge water and fumes discharged through their funnels into the atmosphere will eventually return to the waters in the straits. In this context, the Fisheries Act 1985 (Act 317 ) is obliquely relevant.

The Preamble of the Act circumscribes the Act to mean thus:
“ An Act relating to fisheries, including the conservation, management and development of maritime and estuarine fishing and fisheries, in Malaysian waters, to turtles and riverine fishing in Malaysia and to matters connected therewith or incidental thereto.”
In Part I, Preliminary section of the Act the word “pollutant” has been defined to mean:
“…any substance which, if introduced into the maritime or any riverine waters, is liable to create hazards to human heath or to harm aquatic living resources, or to damage amenities or interfere with other legitimate use of the maritime or riverine waters…”
It is humbly submitted here that oil spills are also embraced by the afore definition.

Section 25 is the general provision on offences created under the Act and reads as thus :
Any person who contravenes or fails to comply with any provision of the Act shall :
a. If foreign vessel a fine not exceeding one million ringgit for
The owner or master and one thousand ringgit in the case of every member of the crew.
b. in all other cases, to a fine not exceeding twenty thousand ringgit or a term of imprisonment not exceeding two years or both.

Section 15 requires foreign vessels loading or unloading any fish, fueling or supplying or transshipping any fish in the Malaysian fisheries waters to have the written approval of the Director-General of Fisheries.

Meanwhile, section 26 forbids fishing with explosives, poisons or pollutants or any apparatus using electric current and so on.

Therefore, by indirectly circumventing unlawful access into the Malaysian waters by foreign fishing vessels the Act purports to curtail oil spillage to an extent. The enforcement of the Act comes under the purview of the Fisheries Department.

iv). The Environmental Quality Act 1974 (EQA 1974)
The EQA 1974 defines oil to mean:
a). crude oil, diesel oil, fuel oil or lubricating oil or
b). any other description of oil which is prescribed by the Minister charged with responsibility for the environment by order in the Gazette to be oil for the purposes of this Act.
Section 27 of the EQA1974 stipulates thus :
(1).No person shall , unless licensed, discharge or spill any oil or mixture containing oil into Malaysian waters in contravention of the acceptable conditions specified under section 21.
(2).Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable to a fine not exceeding (five hundred thousand ringgit) or an imprisonment not exceeding (five) years or both.
While the full ambit of enforcement is within the purview of the Director-General of Environmental Quality as defined in section 2 of the EQA 1974, the assistance of authorized officer may be sought. This is to include any fishery officer, port officer, police officer not below the rank of sergeant, customs officer, any officer of the armed forces, any public officer and any other person or class of persons appointed to be an authorized officer under section 39 of the EQA 1974.

2.2 HAZARDOUS AND NOXIOUS SUBSTANCES
Hazardous substances generally refer to :
· By-products generated in the production processes
· Sludge from waste- water treatment and
· Toxic items which expiry date has passed.

Noxious substances refer to any substance designated in the Appendix II Annexure 2 (with noxious substances in bulk) of MARPOL 73/78 or provisionally assessed under the regulations of Annex II as falling under category A, B, C or D as below :

Category A– Examples: Carbon disulphide, acetone cyanohydrins, cresols, naphthalene and tetraethyl lead i.e substances that can be a major hazard to either marine resources or human health and requiring stringent anti –pollution measures.
Category B- Examples : Carbon tetrachloride, ethylene dichloride and Phenol. i.e substances that can be a major hazard to either marine resources or human health and requiring stringent anti –pollution measures.
Category C- Examples : Benzene, styrene, toluene and xylene i.e substances that can be a minor hazard to either marine resources or human health and requiring stringent anti –pollution measures.
Category D- Examples :Acetone, phosphoric and tallow i.e substances that can be a minor hazard to either marine resources or human health and requiring stringent anti –pollution measures

2.2(a).The empowering conventions, treaties, policies and programmes pertaining to hazardous and noxious substances.

i). MARPOL 73/78
Despite the fact that the MARPOL 73/78 deals mainly with oil pollution it also covers accidental and operational pollution by chemicals, goods in packaged forms, sewage, garbage and air pollution. Furthermore, detailed pollution standards are set out in the annexures as indicated below:
1. Annexure 1 (with oil).
2. Annexure 2 (with noxious substances in bulk).
3. Annexure 3 (with harmful substances carried
by sea in packaged forms).
4. Annexure 4 (with sewage)
5. Annexure 5 (with garbage) and
6. Annexure 6 (with air pollution).

MARPOL 73/78 has come into force but Malaysia has not ratified it while Singapore has already ratified it. It is opined that if Malaysia also ratifies it then closer cooperation for preventing marine pollution, particularly as regards oil spills, in general in the Straits of Malacca can be obtained. Nevertheless, while the MARPOL 73/78 did not directly necessitate the formulation of any domestic laws its influence have had far reaching effects and this is undeniable.

ii).The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their disposal 1989.
This convention is an essential convention as regards hazardous and noxious substances.

Article 4(2)(d) requires parties to ensure that the transboundary movement (including the sea) of hazardous and other wastes is “conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movement.”

Article 4(7)(b) requires that such wastes be packed , labeled and transported in conformity with relevant “generally accepted and recognized rules and standards.”

Implicitly the Basel Convention connotes enforcement at the level of inspection of the noxious and hazardous substances and this is pertinent to ensure that these do not move to the sea to wreak havoc. Malaysia ratified the Convention on 8th October 1993 .
Some of the essential features of the Convention are provided below:
ARTICLE 1
Scope of the Convention
1. The following wastes that are subject to transboundary movement shall be “hazardous wastes” for the purposes of this Convention:
(a) Wastes that belong to any category contained in Annex I, unless they do not possess any of the characteristics contained in Annex III; and
(b) Wastes that are not covered under paragraph (a) but are defined as, or are considered to be, hazardous wastes by the domestic legislation of the Party of export, import or transit.
2. Wastes that belong to any category contained in Annex II that are subject to transboundary movement shall be “other wastes” for the purposes of this Convention.
3. Wastes which, as a result of being radioactive, are subject to other international control systems, including international instruments, applying specifically to radioactive materials, are excluded from the scope of this Convention.
4. Wastes which derive from the normal operations of a ship, the discharge of which is covered by another international instrument, are excluded from the scope of this Convention.
Article 2
Definitions
For the purposes of this Convention:
1. “Wastes” are substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law;
2. “Management” means the collection, transport and disposal of hazardous wastes or other wastes, including after-care of disposal sites;
3. “Transboundary movement” means any movement of hazardous wastes or other wastes from an area under the national jurisdiction of one State to or through an area under the national jurisdiction of another State or to or through an area not under the national jurisdiction of any State, provided at least two States are involved in the movement;
4. “Disposal” means any operation specified in Annex IV to this Convention;
5. “Approved site or facility” means a site or facility for the disposal of hazardous wastes or other wastes which is authorized or permitted to operate for this purpose by a relevant authority of the State where the site or facility is located;
6. “Competent authority” means one governmental authority designated by a Party to be responsible, within such geographical areas as the Party may think fit, for receiving the notification of a transboundary movement of hazardous wastes or other wastes, and any information related to it, and for responding to such a notification, as provided in Article 6;
7. “Focal point” means the entity of a Party referred to in Article 5 responsible for receiving and submitting information as provided for in Articles 13 and 16;

iii).The United Nations Convention on the Law of the Sea
Article 195 of UNCLOS III imposes the duty on states not to transfer damage or hazards or transfer one form of pollution into another .
In addition to this the other aspects as proscribed are analogous to those in paragraph 2.1 a (iii) above on Oil Spills namely :
· Article 192 LOSC proscribed that it was the general duty to protect & preserve the marine environment from pollution from all sources.
· Article 207 to 234 and 236 LOSC defined the jurisdictional rights and obligations (legislative & enforcement) of flag, coastal and port states.
· Other related art in Part XII (Protection and Preservation of the Marine Environment) deal with principles (art 192-6), global & regional cooperation (art 197-201), technical assistance(art 202-3),
· Articles 204-6 deal with the monitoring and environmental aspects while Article 235 deals with responsibility and liabilities thereof.
These Articles obviously have contributed to the domestic laws pertaining to hazardous and noxious substances.

iv). Hazardous and Noxious Substances Convention (HNS) (1996)
Under the HNS Convention 1996, the shipowner is strictly liable for damage caused by Hazardous and Noxious substances (exclude radioactive matter).
The damage incurred may in the e form of loss of life or personal injury, loss of or damage to property outside the ship, loss or damage by contamination of the environment within 200 miles of land and the costs of preventive measures.`

The HNS Convention 1996 is analogous to the CLC Convention and CLC Fund set up for oil pollution and shall go a long way to benefit the affected states.

HNS and the CLC/Fund Conventions

The HNS Convention excludes pollution damage as defined in the International Convention on Civil Liability for Oil Pollution Damage and the International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage, to avoid an overlap with these Conventions.

However, HNS covers other damage (including death or personal injury) as well as damage caused by fire and/or explosion when oils are carried.

2.2(b). The Domestic Laws pertaining to hazardous and noxious substances.
i). The Customs Act 1967 and orders thereof
Section 109 of the Act authorizes the power to search vessels in any customs port or within territorial waters. The officer concerned can examine all goods on board and all goods then being loaded or unloaded and also demand all documents which ought to be aboard the vessels.

Also by virtue of The Customs (Prohibition of Export) (No.2) (Amendment) Order 1993 and The Customs (Prohibition of Import) (No.3) (Amendment) Order 1993, hazardous wastes without an appropriate license can neither be imported nor exported. Violation of these orders is subject to a punitive measure. Thus entry into the Malaysian waters of any ship loaded with toxic wastes without a prior license will amount to violation of the Malaysian law.

The Custom Act and the attendant regulations are considered to be the best tool for implementation of the Basel Convention as the Department of Environment has no direct control over the importation or exportation of wastes or the ports which serve as a conduit for these transactions.

ii).The Environmental Quality Act 1974 and regulations thereof
Under section 29 of the EQA 1974:
“ No person shall , unless licensed, discharge(environmentally hazardous substances, pollutants or ) wastes into the Malaysian waters…” and
“ Any person who contravenes ……. shall be guilty of an offence
and shall be liable to a fine not exceeding (five hundred thousand ringgit) or to imprisonment not exceeding (five) years or both.”
According to the Act :
““Environmentally hazardous substances” means any natural or artificial substance, including any raw material whether in a solid or liquid form, or in the form of gas or vapour or in the a mixture of at least two of these substances or any living organism intended for any environmental protection, conservation and control activity which can cause pollution.”
Under the Environmental Quality (Scheduled Wastes) Regulations 1989 every generation of any scheduled waste shall be brought to the notice of the Department of Environment within the prescribed time and shall be disposed of at prescribed premises only. Dumping them into Malaysian waters will be a punishable act.

iii). Merchant Shipping Ordinance 1952 (Ord. 70/1952)
As regards hazardous and noxious substances, the above Act also is contributive in tackling the problem though the term used is “ dangerous goods”. It is submitted that dangerous goods also constitute noxious and hazardous substances.

For example under :
Section 289. Restrictions on carriage of dangerous goods.

(1) A person shall not send or attempt to send by any vessel, and a person not being the master or owner of the vessel shall not carry or attempt to carry in any such vessel any dangerous goods, without distinctly marking their nature on the outside of the package containing the same and giving written notice of the nature of those goods and of the name and address of the sender or carrier thereof to the master or owner of the vessel at or before the time of sending the same to be shipped or taking the same on board the vessel.

(2) Any person who fails without reasonable cause to comply with this section shall be liable for each offence to a fine not exceeding ten thousand ringgit, but if he shows that he was merely an agent in the shipment of any such goods as aforesaid, and was not aware and did not suspect and had no reason to suspect that the goods shipped by him were of a dangerous nature, then not exceeding one thousand ringgit.

(3) For the purpose of this Part "dangerous goods" means -
(a) aquafortis, vitriol, naphtha, benzine, gunpowder, lucifer matches, nitroglycerine and petroleum;
(b) any explosives within the meaning of any written law in force in the Federation relating to explosives;
(c) any goods which by reason of their nature, quantity or mode of stowage are liable, either singly or collectively, to endanger the lives of persons on or near any ship, or to imperil any ship; and
(d) any other goods which may be declared to be dangerous goods by rules made or, as the case may be, having application under section 293.

293. Carriage of dangerous goods.

(1) The Minister may make rules for regulating in the interests of safety the carriage of dangerous goods in ships to which this section applies.

(2) This section applies to -
(a) all Malaysian ships whether such ships ply on an international voyage or not;
(b) .all other ships while they are within any port in Malaysia, or are embarking or disembarking passengers within the territorial waters of Malaysia, or are loading or discharging cargo or fuel within those waters.
(3)..Rules made under subsection (1) may prescribe such certificates as may be necessary for the purposes of the rules and may prescribe the fees payable in respect of such certificates.
(4). Until rules are made under subsection (1) , the rules made from time to time under the Merchant Shipping Acts with respect to the carriage of dangerous goods shall apply to ships to which this section applies.
(5). If any of the rules made under subsection (1) or, as the case may be, having application under subsection (4) , is not complied with in relation to any ship to which the rule applies, the person specified in the rules as being guilty of an offence for the non-compliance or, if no person is so specified, the owner or master of the ship shall be liable in respect of each offence to a fine not exceeding fifteen thousand ringgit or such lesser amount as may be prescribed in the rules for the offence, and the ship shall be deemed for the purposes of this Part to be unsafe by reason of improper loading.
2.3 . Other domestic laws indirectly tackling the problems of
Oil - spillage, hazardous and noxious substances.


(i). The Continental Shelf Act 1966 vide its section 6 provides for the making of laws to protect the living resources of the sea and the natural resources of the continental shelf from harmful agents.
While “harmful agents” are wide in its ambit, it is submitted that oil, noxious and hazardous substances come within its parameters for these too can wreak havoc to the natural resources in the sea.

(ii). The Petroleum Mining Act 1966
The Act purports to place restriction on petroleum exploring, prospecting and mining. Under section 3 (1) of the Act no person is to explore, prospect or mine without an exploration licence or a petroleum agreement.

These activities may be on land (including off-shore land adjacent to and contiguous with the on-shore ) and also “off-shore land” (i.e area of the continental shelf).
While these Acts do not directly curtail they do in a minimal manner cater towards tackling the problems of oil spillage, hazardous and noxius substances.
3. CONCLUSSION
While laws have been enacted, many following the international treaties and conventions the problem at the Straits of Malacca still pose as an obstinate impediment not to be easily circumvented. The domestic laws often require the enforcement of several bodies namely the Department of Marine, Customs, Department of Environment and the Attorney General’s Chambers (in matters of prosecution). In most of the laws the authorized officers can be from any of these departments and even the police.

What is important is not just domestic laws and their enforcement but commitment also by the user states. Mere lip service as to concerted efforts to combat the problem caused by their vessels is not sufficient. Only Japan has made some positive contribution. For example in 1981 it founded a revolving fund and it valued at 400 million yen. [12] This is to be used for immediate clean-up of oil-spills. Similarly the Japanese government has contributed 9973 million yen since 1976 to install navigational services in the Straits of Malacca. This is insufficient and the following questions remain :
Should Malaysia continue to subsidise the international community by providing free services for their use ?
What should be the form of contributions by the international communities to defray the costs of damage at the Straits of Malacca?
Who should pay for these and how ?
What institutions should be created to manage more effectively the services in the Straits of Malacca ?
Until these are answered and implemented accordingly the Malaysian government is definitively holding an economic time-bomb clicking away and waiting to blow the economic cake disproportionately sending ripples to the nation as a whole !





1] Lecture Notes by Pn. Wan Adibah Wan Dahalan., FUU UKM
[2] Pgs.329-333- The Law Of The Sea by R.R.Churchill and A.V.Lowe
[3] Pgs 135 and 136 –The Straits of Malacca, International cooperation in trade funding & Navigational
safety.

[4] Pgs 127 and 128 –The Straits of Malacca, International cooperation in trade funding & Navigational
safety.
[5] Preamble to the Merchant Shipping (Oil Pollution) Act 1994
[6] Pg 206 - The Straits of Malacca, International cooperation in trade funding & Navigational safety.

[7] Noor Apandi Osnin, Waste Reception Facilities Under MARPOL 73/78 Centre for Ocean Law and
Policy, Maritime Institute of Malaysia, January 2004

[8] Noor Apandi Osnin, Waste Reception Facilities Under MARPOL 73/78 Centre for Ocean Law and
Policy, Maritime Institute of Malaysia, January 2004

[9] Noor Apandi Osnin, Waste Reception Facilities Under MARPOL 73/78 Centre for Ocean Law and
Policy, Maritime Institute of Malaysia, January 2004

[10] http:www.imo.org/conventions
[11] Article – Protection of the Marine Environment from Sea-Bed Pollution – Mohd Nizam Basiron
[12] Pg 137- –The Straits of Malacca, International cooperation in trade funding & Navigational
safety.