MALTA'S INTERNATIONAL
OBLIGATIONS RELATING
TO SUSTAINABLE DEVELOPMENT.
(Draft Report prepared
for SI -MO).
Simone Borg
31st July 2001
1
Abstract
The terms of reference of this study required the author to assess Malta's international
obligations, relating to sustainable development particularly with respect to its reporting
requirements. The accent on reporting requirements is necessary, because reporting is a
mechanism which ensures compliance with these same international obligations.
Nevertheless it has also been necessary to assess the substantive nature of these legal
obligation to understand better the reporting obligations, related thereto.
On the other hand, Malta's international obligations relating to sustainable development
must be interpreted widely. In the sense concept of sustainable development, is fairly
recent and its component legal elements, have not been successfully identified. Rather
than blaming lawyers from being incompetent, there is a plausible reason for this.
In my opinion, it is fallacious to attribute a legal definition to the term 'sustainable
development' per se. This is because sustainable development is all about balancing
socio economic i.e. developmental needs with environmental concerns. Throughout its
evolution international environmental law, has been doing just that. As one analyses the
objectives and obligations of each Convention, one finds a list of rights and duties which
try to appease both sides of the spectrum i.e. the right to exploit natural resources and the
concomitant duty to ensure that such resources are safeguarded from degradation and
preserved as far as possible in a healthy state. One can understand this better by delving
into the history of the evolution of the concept of sustainable development.
The 1972 United Nations Conference on the Human Environment (UNCHE) had taken
into consideration the link between environmental protection and progress in economic
development. In the years which followed, States reacted to the economic and political
repercussions which environmental protection measures had regarding pollution and the
conservation of resources and although it was a problem common to all States, it was
particularly severe for developing States, as their incomes declined steadily year after
year. Developments during the New International Economic Order (NIEO) process, did
not take into consideration the impacts of development on the environment, although
there were attempts to take into account the need of development, whilst recognising the
need to protect and conserve natural resources64.
In 1987 the World Commission on Environment and Development (WCED) in its report
'Our Common future' also known as the Brundtland Report, held that these two
conflicting human needs of development and environmental protection only come to
terms, by ensuring that such development is sustainable and by providing the necessary
machinery to increase international co-operation, to achieve this objective. The report
defined sustainable development as:
64
IUCN World Conservation Strategy, 1980 aimed amongst other things at the optional sustainable yield of
natural resources as well as their conservation protection.
2
"Development that meets the needs of the present, without compromising the ability of
future generations to meet their own needs"65
UNEP amplified upon this emerging concept stating that it requires;
"The maintenance, rational use and enhancement of the natural resource base, that
underpins ecological resilience and economic growth" and "implies progress towards
international equity"66.
The 1982 UN Conference on Environment and Development (UNCED) in Rio had
'Sustainable Development' as its underlying objective. Principle 2 of the Rio Declaration
in fact, affirms that a State's responsibility in the exercise of its sovereign right to exploit
its natural resources, must be qualified not only in terms of its environmental policy
obligations but also in terms of its developmental policy67.
Birnie and Boyle in their book, International Law and Environment, declare:
"The problem of achieving 'sustainable development' is however easier to identify than to
resolve and it is essentially, one of negotiating balanced solutions, taking into account
both developmental and environmental factors in the particular context of the problem in
issue and of the wider environmental impacts of the possible solutions"68.
Even after UNCED, not much has been said as how to implement the concept of
sustainable development in international environment law. It is rather difficult in reality
to determine, to what extent if at all, does international law oblige States to conserve
natural resources and ensure that their exploitation is sustainable. Gro Harlem
Brundtland who had chaired the WCED had hailed 'sustainable development' as none
other than a concept for economic growth. Although this allegation has served to confirm
that healthy development is dependant upon a healthy environment, this assimilation of
the concept with economic growth has also had negative repercussions, in the sense that
at times States have deliberately permitted the principle of sustainable development to be
unsurped by the notion of sustained growth. This had led to the expressions to be used at
times interchangeably with the danger that it might be interpreted to mean, as is very well
explained by Marc Pallemaerts, "that growth is not actually harmful to the environment
but to the contrary, essential to its very protection"69
The duty of co-operation among States in the conservation and sustainable development
of the common property resources, was identified in the Icelandic Fisheries Case70 and
65
WCED Report, Our Common Future, Oxford University Press, 1987.
UNEP GC/Decision 15/2 dd May 1989.
67
UNCHE Stockholm Declaration Principle 21 as opposed to Principle 2 of the Rio Declaration.
68
Birnie P. & Boyle A., International Law and the Environment Oxford Clarendon Press. (1992) p.p
123.
69
Pallaemarts Marc, "From Stockholm to Rio Back to the Future?", Greening International Law,
Earthscan Publications Ltd, 1993. P.p. 13-16.
70
Icelandic Fisheries Case (Germany v Iceland), ICJ Reports (1974), 3.
66
3
in fact a number of treaties, not only those regarding fisheries, but also those relating to
wildlife conservation, cultural and natural heritage, endangered species, protection of
habitats and international watercourses have included such an obligation, which goes
even further than the Icelandic Fisheries Case.
The point remains however that even these Conventions do not actually lay down in
concrete terms specific obligations, with the aim of fulfilling this objective. Birnie and
Boyle argue that this is not tantamount to acquiescence by States with respect to such an
obligation of conservation and sustainable development of all natural resources under
international environmental law such that it may eventually lead to its crystallisation as
custom71. In fact although in many cases such an obligation is already observed with
respect to shared resources, or resources situated in areas within national jurisdiction,
States have vociferously refused to allow the international regulation of natural resources
so located, in a sustainable manner, as we shall see in Chapter VII when considering the
issue of deforestation.
Sustainable development has nevertheless been widely accepted as the ultimate objective
of international environmental policy, of Agenda 21 itself and of the machinery i.e. the
Commission for Sustainable Development, set up to see to the implementation of Agenda
21, following UNCED. As a concept in fact, sustainable development was never
conceived to be restricted to the exploitation of resources situated in areas beyond
national jurisdiction. It is not only fallacious but contradictory to interpret it in this
manner because developmental policies are meant to be preserved within sovereign States
and not in the international commons. The World Charter for Nature had referred to such
policies as encompassing, "All areas of the earth, both land and sea"72.
Many soft law instruments adopt this view and there is a gathering momentum towards
the universal acceptance of the concept of sustainable development. The formulation of
new treaties and State practice is in keeping with this trend and this may lead to sufficient
opinio iuris with respect to the conservation obligations to become binding legal-norms
forming part of the international regime for the protection of natural resources. Some
international lawyers also claim that widespread adherence to the concept, may even lead
to the obligation to conserve natural resources, wherever they occur, in accordance with
the principle of sustainable development as a rule of Jus Cogens, i.e. a rule which can
only be replaced by another peremptory norm in international law73.
There exists no consensus however on the legal implications of sustainable development,
and this may give rise to considerable difficulties in dispute settlement. The WCED legal
principles and the draft Charter and Convention on Environment and Development,
proposed by the Council of Europe, do not solve the problem of interpretation, even if
71
Birnie P. & Boyle A., International Law and the Environment, Oxford Clarendon Press (1992) p.p.
124.
72
World Charter for Nature UNGA Resolutions 37/7 d.d. 28 th October 1982. Principle I. Para 8.
73
Vide Handl 1 Yearbook of International Environmental Law. (1990), p.p. 25.
4
they acknowledge that the notion of sustainable development is an emerging principle of
international law.
The absence of consensus on this matter allows States a great deal of discretion as to how
to achieve sustainable development at a national level, a commitment they have taken at
UNCED. The Commission for Sustainable Development, particularly through its
ministerial segment, which meets for a couple of days at each annual session, may create
the necessary impetus to resolve such an impasse or at least manage to translate into
concrete technical terms how to achieve sustainable development on national, regional
and global level. Only if it succeeds in doing so, can it actually see to the implementation
of Agenda 21, considered to be a landmark achievement in the field of environmental
diplomacy and thus fulfil the mandate with which the UNCED has entrusted it.
Existing principles such as the right to sovereignty over natural resources, the polluter
pays principle, the preventive and precautionery approach, as well as emerging concepts
such as the inherent rights of future generations, equity, the Common Heritage and
Common Concern concepts have and continue to guide State practice. This would lead to
further encroachment upon the reserve domain regime and subjecting natural resources to
international legal norms which aim at their protection and conservation, in the interest of
the international community as a whole. In this sense, the principle of sustainable
development has been used and is likely to continue to be the very basis upon which
global, regional and national environmental policies are oriented.
The goal of such an international regime is difficult to attain in practice, even among
States with similar economic status and, common political ideas such as the member
States of the European Union. Despite its shortcomings however, such a regime remains
the only means to ensure the harmonisation and development of national environmental
law and for providing States with a broad, albeit imperfect regulatory framework for the
protection of the biosphere.
5
1.
INTRODUCTION.
International liability claims for environmental harm are rarely presented despite the fact
that state responsibility for environmental harm, is enshrined in a number of declarations1
and conventions, such that it has crystallised into a principle of customary international
law. There are various reasons for this. There are difficulties for example, in determining
the degree of fault or legal basis, necessary to impose responsibility. Inter-state
procedures are lengthy, whilst the involvement of more than one state and the distances
involved, further complicate matters.
Apart from enforcement of environmental law through claims of state responsibility
however, there exists another mechanism used to enhance compliance with international
obligations. Reporting by States, regarding measures they have taken to implement their
international obligations is becoming increasingly popular as an enforcement tool in
international law, especially as these reports are in turn reviewed by international bodies
and other states.
The duty to report and to inform, is in fact one of the fundamental principles of
international and national environmental law. It is placed on the same level, as more
popular fundamental principles like the polluter pays principle, sovereignty over natural
resources and responsibility for environmental harm. In international law, it is mainly
used as a tool for ensuring enforcement, since there exists no global centralised authority
to ensure compliance. On a national level and even to a certain extent on an international
level, it is a tool to ensure that data is produced on a comparative basis, directing national
and international entities, to submit information in a transparent and objective fashion.
Most international legal instruments, particularly the most recent ones, call for reports by
State parties. International institutions which run such legal instruments, seek to enhance
the effectiveness of reporting mechanisms by standardising them and rationalising them
by submitting a questionnaire or outline documents, to State parties.
1
Both the Stockholm Declaration of the 1972 United Nations Conference on the Human Environment
(UNCHE) and the 1972 Rio Declaration of United Nations Conference on Environment and Development
(UNCED), include this principle.
6
2.
MALTA'S OBLIGATIONS UNDER MULTI LATERAL LEGAL
INSTRUMENTS RELATING TO SUSTAINABLE DEVELOPMENT.
The following are the multilateral legal instruments relating to sustainable development
to which Malta is a party.
2.1
1951 The International Plant Protection Convention.
2.2
1954 International Convention for the Prevention of Pollution of the Sea
by Oil - (OILPOL)
2.3
1958 The Convention on the Continental Shelf.
2.4
1958 The Convention on the Territorial Sea and the Contiguous Zone.
2.5
1963 Treaty Banning Nuclear Weapon Tests in The Atmosphere, in Outer
Space and Under Water.
2.6
1969 International Convention on Civil Liability for Oil Pollution
Damage.
2.7
1971 The Treaty on the Prohibition on the Emplacement of Nuclear
Weapons and Other Weapons of Mass Destruction of the Sea-Bed and the
Ocean Floor and in the Subsoil Thereof.
2.8
1971 International Convention on the Establishment of an International
Fund For Oil Pollution Damage.
2.9
1971 The Convention on Wetlands of International Importance Especially
As Waterfowl Habitat.
2.10
1972 The Convention on the Prevention of Marine Pollution by Dumping
of Wastes and Other Matter.
2.11
1973 The Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES).
2.12
1976 The Convention For the Protection of the Mediterranean Sea Against
Pollution - and the 1996 Barcelona Convention for the Protection of the
Environment and the Coastal Region of the Mediterranean.
2.13
1976 The Protocol for the Prevention of Pollution of the Mediterranean by
Dumping from Ships and Aircraft - 1996 The Protocol for the Protection
of the Environment and the Coastal Regions of the Mediterranean or
Incineration at Sea.
7
2.14
1976 The Protocol concerning Co-operation in Combating Pollution of the
Mediterranean Sea by Oil and Other Harmful Substances, in Cases of
Emergency.
2.15
1976 The Protocol for the Protection of the Mediterranean Sea Against
Pollution From Land Based Sources -1996 The Protocol for the Protection
of the Mediterranean Sea Against Pollution from Land-Based Sources and
Activities.
2.16
1979 The Convention on European Wildlife and Natural Habitats.
(BERNE)
2.17
1979 the Convention on the Conservation of Migratory Species of Wild
Animals.
(BONN) and its Agreements on Bats and Cetaceans
(EUROBATS AND ACCOBAMS).
2.18
1979 The Convention on Long Range Transboundary Air Pollution.
2.19
1979 The Protocol to the Convention on Long Range Transboundary Air
Pollution on Long-Term Financing of the Co-Operative Programme for
Monitoring and Evaluation of the Long Rang Transmission of air
Pollutants in Europe (EMEP).
2.20
1982 United Nations Convention on the Law of the Sea.
2.21
1985 The Vienna Convention For the Protection of the Ozone Layer.
2.21
1987 The Montreal Protocol on Substances That Deplete The Ozone
Layer.
2.23
1989 Basel Convention on the Transboundary Movement of Hazardous
Wastes and their Disposal.
2.24
1992 The United Nations Framework Convention on Climate Change.
2.25
1992 Convention on Biological Diversity.
2.26
1994 United Nations Convention to Combat Desertification in those
Countries Experiencing Serious Drought and/or Desertification,
particularly in Africa.
2.27
1996 Protocol Concerning Protected Areas and Biological Diversity in the
Mediterranean.
8
2.28
1996 Protocol on the Prevention of Pollution of the Mediterranean Sea by
Transboundary Movement of Hazardous Wastes and their Disposal.
2.1
International Plant Protection Convention2
This Convention concluded by its contracting parties under the guidance of the Food and
Agriculture Organisation (FAO), recognised way back in 1952 the usefulness of:
“International co-operation in controlling pests of plants and plant products and in
preventing their spread, and especially their introduction across national boundaries,
and desiring to ensure close co-ordination of measures directed to these ends3”
One of the major obligations of State Parties under this Convention is the establishment
of a national organisation for plant protection. In this context each party shall submit a
description of the scope of its national organisation for plant protection and of changes in
such organisation to the Director-General of FAO, who shall circulate such information to
all contracting parties.4 If a contracting party prescribes any restrictions or requirements
concerning the importation of plants and plant products into its territories, it shall publish
the restrictions or requirements and communicate them immediately to FAO, any regional
plant protection organisation of which the contracting party is a member and all other
contracting parties directly concerned 5.
If a contracting party prohibits, under the provisions of its plant protection legislation, the
importation of any plants or plant products, it shall publish its decision with reasons and
shall immediately inform FAO, as well as any regional plant protection organisation of
which the contracting party is a member and all other contracting parties directly
concerned.
If a contracting party requires consignments of particular plants or plant products to be
imported only through specified points of entry, such points shall be so selected as not
unnecessarily to impede international commerce. The contracting party shall publish a
list of such points of entry and communicate it to FAO, any regional plant protection
organisation of which the contracting party is a member and all other contracting parties
directly concerned. Such restrictions on points of entry, shall not be made unless the
plants or plant products concerned, are required to be accompanied by phytosanitary
certificates or to be submitted to inspection or treatment.
2
Source International Environmental Law - Multilateral Treaties p.p 951: 90/11 (Vol 11).
Vide Preamble.
4
Art IV (2)
5
Art VI (2) (b)
3
9
Any inspection by the plant protection organisation of a contracting party of
consignments of plants or plant products offered for importation shall take place as
promptly as possible with due regard to the perishability of the plants or plant products
concerned. If any commercial or certified consignment of plants or plant products is
found not to conform to the requirements of the plant protection legislation of the
importing country, the plant protection organisation of the importing country must ensure
that the plant protection organisation of the exporting country is properly and adequately
informed. If the consignment is destroyed, in whole or in part, an official report shall be
forwarded immediately to the plant protection organisation of the exporting country.
Under the Convention, the FAO shall disseminate information received on importation
restrictions, requirements, prohibition and regulations6 at frequent intervals to all
contracting parties and regional plant protection organisations. The contracting parties
shall co-operate with one another to the fullest practicable extent, in achieving the aims of
this Convention, in particular as follows:
"Each contracting Party agrees to co-operate with FAO in the establishment of a world
reporting service on plant pests, making full use of the facilities and services of existing
organisations for this purpose, and, when this is established, to furnish to FAO
periodically, for distribution by FAO to the contracting parties, the following
information:
(i) reports on the existence, outbreak and spread of economically important
pests of plants and plant products which may be of immediate or potential
danger.
(ii) information on means found to be effective in controlling the pests of plants
and plant products".
2.2
6
7
The International Convention for the Prevention of Pollution of the Sea
by Oil7, 1954.
As specified in paragraph 2 (b), (c) and (d) of this Article.
As amended 1962/1969 Source: International Env. Law, Multilateral Treaties pp 954:36 Vol. II.
10
State parties are obliged to report8 to the Inter-Governmental Maritime Consultative
Organisation (IMCO)9, the penalties actually imposed for each infringement of the
obligations under the Convention. An infringement of the obligations imposed by the
Convention on the State Parties, shall be an offence punishable under the law of the
relevant territory in respect of the ship which commits such an offence10. These penalties
which must be so reported may be imposed under the law of any of the territories of the
contracting parties, in respect of the unlawful discharge from a strip of oil, or oily
mixture, outside the territorial sea of that territory.
Another obligation under the Convention is for State Parties to ensure that adequate
facilities are provided in ports and oil-loading terminals, for use by ships11. State parties
are to report to the Inter Governmental Maritime Consultative Organisation allegations of
inadequate facilities, provided by contracting Parties12. The said report by the alleging
State Parties, in fact would be transmitted to the State party, which is allegedly not
providing adequate facilities13.
State parties may inform other State parties of any contravention committed by ships
flying their flag14. State parties, are in turn obliged to report to the Organisation, of any
action taken against the ship registered under its flag, which has allegedly contravened the
provisions of this Convention, as well as inform the State Party which had originally
informed the flag state of the alleged contravention.
Finally each Contracting Party shall send to the Bureau and to the appropriate organ of
the United Nations the text of laws, decrees, orders and regulations in force in its
territories, which give effect to the present Convention, as well as all official reports, or
summaries of official reports in so far as they show the results of the application of the
provisions of the Convention provided always that such reports or summaries, are not,
according to the State parties, of a confidential nature.
2.3 1958 The Convention on the Continental Shelf.
No reporting requirements.
8
Art VI (3)
This was the predecessor of what is now the International Maritime Organization (IMO).
10
Art VI (1)
11
Art VIII G
12
Art (3)
13
Art.
14
Art. X G
9
11
2.4
1958 The Convention on the Territorial Sea and the Contiguous Zone.
No reporting requirements.
2.5
1963 Treaty banning Nuclear Weapon Tests in the Atmosphere, in
Outer Space and Under Water.
No reporting requirements.
2.6
1969 International Convention of Civil Liability for Oil Pollution
Damage.
No reporting requirements
2.7
The Treaty on the Prohibition of the Emplacement of
NucleaWeaponsand Other Weapons of Mass Destruction On the SeaBed and the Ocean Floor and in the Subsoil Thereof15.
The aim of this Treaty is mainly to ensure that the Seabed, Ocean Floor and Subsoil
thereof, are not used for nuclear testing or stockpiling of nuclear weapons, in order to
maintain world peace and to ensure that the marine environment is used only by
humankind for peaceful purposes.
In order to promote the objectives of and ensure compliance with the provisions of this
Treaty, each State Party to the Treaty shall have the right to verify through observation
the activities of other States Parties to the Treaty on the sea-bed and the ocean floor and
in the subsoil thereof beyond the zone referred to in Article I, provided that observation
does not interfere with such activities.
If after such observation reasonable doubts remain concerning the fulfilment of the
obligations assumed under the Treaty, the State Party having such doubts and the State
Party that is responsible for the activities giving rise to the doubts shall consult with a
view to removing the doubts. If the doubts persist, the State Party having such doubts
15
Source Int. Env. Law Mult L. Treaties pp 971:12/11.
12
shall notify the other States Parties, and the Parties concerned shall co-operate on such
further procedures for verification as may be agreed, including appropriate inspection of
objects, structures installations or other facilities that reasonably may be expected to be of
a kind described in Article I. The Parties in the region of the activities, including any
coastal State, and any other Party so requesting shall be entitled to participate in such
consultation and co-operation. After completion of the further procedures for
verification, an appropriate report shall be circulated to other Parties by the Party that
initiated such procedures.
The above have not removed the doubts concerning the activities and there remains a
serious question concerning fulfilment of the obligations assumed under this Treaty, a
State Party may, in accordance with the provisions of the Charter of the United Nations,
refer the matter to the Security Council, which may take action in accordance with the
Charter.
2.8 1971 International Convention on the Establishment of an
International
Fund for Oil Pollution Damage.
No reporting requirements.
2.9
The Convention on Wetlands of International Importance especially as
Waterowl Habitat16 as amended by the Paris Protocol of 198217.
Each contracting Party shall designate suitable wetlands within its territory for inclusion
in a List of Wetlands of International Importance, which is maintained by the bureau.
The boundaries of each wetland shall be precisely described and also delimited on a map
and they may incorporate riparian and coastal zones adjacent to the wetlands, and islands
or bodies of marine water deeper than six metres at low tide lying within the wetlands,
especially where these have importance as waterfowl habitat.
Wetlands should be selected for the List on account of their international significance in
terms of ecology, botany, zoology, limnology or hydology. In the first instance wetlands
of international importance to waterfowl at any season should be included. Each
16
17
Commonly known as the Ramsar Convention.
Source Int. Env. Law Multilateral treaties pp 971: 09/A/II. Vol IV.
13
Contracting Party shall designate at least one wetland to be included in the List when
signing this Convention or when depositing its instrument of ratification or accession.
Any Contracting Party shall have the right to add to the List further wetlands situated
within its territory, to extend the boundaries of those wetlands already included by it in
the List, or, because of its urgent national interests, to delete or restrict the boundaries of
wetlands already included by it in the List and shall, at the earliest possible time, inform
the organization or government responsible for the continuing bureau duties of any such
changes
Under this Convention the Bureau duties under this Convention, obligate State Parties,
inter alia, to inform it of any changes in the ecological character of wetlands included in
the list. The bureau is also to forward notification of any alterations to the List, or
changes in character of wetlands included therein, to all Contracting Parties. To make
known to the Contracting Party concerned, the recommendations of the Conferences in
respect of such alterations to the List or of changes in the character of wetlands including
therein.
2.10
The 1972 Convention on the Prevention of Marine Pollution by
Dumping of Wastes at Sea and other Matter18.
Popularly known as the London Dumping Convention, (LDC) this Convention is widely
regarded as one of the more successful regulatory treaties. This is because this
Convention has set up an international forum, the London Dumping Convention
consultative Meeting which together with regional bodies19 have enabled the international
community to adopt increasingly stringent standards to ensure that dumping at sea at least
controlled and in certain cases completely prohibited.
The contracting parties agreed to this Convention on the pretext that dumping20 is one of
the many sources of marine pollution and that States use the best practicable means to
prevent such pollution and develop products and processes which will reduce the amount
of harmful wastes to be disposed of. The objective of the Convention is very well
defined. Contracting Parties are to individually and collectively promote the effective
control of all sources of pollution of the marine environment, and pledge themselves
especially to take all practicable steps to prevent the pollution of the sea by the dumping
of waste and other matter that is liable to create hazards to human health, to harm living
18
Source: Int. Env. Law Multilateral Agreements pp 972:96.
In Malta's case through the Mediterranean Action Plan, the Barcelona Convention and its Dumping
Protocol.
20
Referred in this Convention as the 'deliberate disposal of wastes on other matter …. At sea' Act 3 (1).
19
14
resources and marine life, to damage amenities or to interfere with other legitimate uses
of the sea.
The Convention prohibits21 the dumping of wastes or other matter listed in Annex I22 and
requires a prior special permit for the dumping of wastes or other matter, listed in its
Annex II. The dumping of all other wastes or matter requires a prior general permit.
Incineration at sea was prohibited under the Convention in 199423. The reporting
obligations under the Convention are various. Parties are, to report to the International
Maritime Organisation referred to in the Convention as the ‘Organisation’, any measures
which they take to prohibit on unilateral basis, the dumping of wastes or other matter not
mentioned in Annex I24. Furthermore, Parties are to report the dumping of any wastes
and other matter normally prohibited under the Convention but which was excusable,
because of safety reasons for human life, vessels or other man-made structures, or in
cases of force majeur and where “dumping appears to be the only way of averting the
threat" and if there is every probability that the damage consequent upon such dumping,
will be less than would otherwise occur. Such dumping shall be so conducted as to
minimise the likelihood of damage to human or marine life and shall be reported
forthwith to the Organisation25.
Similarly, a Contracting Party may issue a special permit as an exception to Article IV (1)
in emergencies, posing unacceptable risk relating to human health and admitting no other
feasible solution. Before doing so, the Party shall however consult any other country or
countries, that are likely to be affected and the Organisation which, after consulting other
Parties, and international organisations as appropriate; shall in accordance with Article
XIV promptly recommend to the Party the most appropriate procedures to adopt. The
Party shall follow these recommendations to the maximum extent feasible, consistent
with the time within which action must be taken and with the general obligation to avoid
damage to the marine environment and shall inform the Organisation of the action it
takes. The Parties pledge themselves to assist one another in such situations.
Finally the Standardisation of permits allow the Organisation, to scrutinize compliance
with the Convention by the State parties. In fact each Contracting Party shall designate
an appropriate authority or authorities to:

issue special permits which shall be required prior to, and for, the dumping of
matter26.
21
Act IV (I)
Matter which is hazardous on ground of toxicity, persistence, bioaccumulation and the likelihood of
significant, widespread environmental exposure.
23
LDC Resolutions 35 (ii) 1988 and 38(13), 1990; OSCOM Decisions 88/1 (1988) and 90/2 (1990)
24
Art. IV 3.
25
Art V (I).
22
26
Listed in Annex II and in the circumstances provided for in Article V (2).
15


issue general permits, which shall be required prior to and for, the dumping of all
other matter;
monitor individually, or in collaboration with other Parties and competent
international organisations, the condition of the seas for the purposes of this
Convention.
In issuing such permits, the appropriate authority or authorities shall comply with Annex
III of the Convention together with such additional criteria, measures and requirements as
they may consider relevant. Each Contracting Party, directly or through a Secretariat
established under a regional agreement, shall report to the Organisation and where
appropriate to other Parties, the information specified, and the criteria, measures and
requirements it adopts.
2.11
The Convention on International Trade on Endangered Species of Wild
Flora and Fauna (CITES).
CITES regulates 'international trade in specimens of species of wild fauna and flora', i.e.
export, re-export and import of live an dead animals and plants and of parts and
derivatives thereof, based on a system of permits and certificates which can be issued, if
certain conditions are met and which have to be presented, before consignments of
specimens, are allowed to leave or enter a country.
Each Party must designate one or more Management Authorities responsible for issuing
these permits and certificates, subject to the advice from one or more Scientific
Authorities designated for that purpose.
The animal and plant species subject to different degrees of regulation are listed in three
appendices:


Appendix I includes species 'threatened with extinction' and for which trade must be
subject to particular strict regulation and only authorised in exceptional
circumstances.
Appendix II species are 'not necessarily now threatened with extinction but may
become so, unless trade is strictly regulated'. Appendix II further contains so-called
look-alike species, which are controlled because of their similarity in appearance to
the other regulated species, thereby facilitating a more effective control thereof.
16

Appendix III contains species that are 'subject to regulation within the jurisdiction of
a Party' and for which the 'co-operation of other Parties' is needed to prevent or
restrict their exploitation.
Each Party shall maintain records27 of trade, in specimens of species included in
Appendices I, II and III which shall cover; the names and addresses of exporters and
importers. Also covered are the number and type of permits and certificates granted; the
State with which such trade occurred; the numbers or quantities and types of specimens,
names of species as included in Appendices I, II and III and, where applicable the size
and sex of the specimens in question.
Each Party shall prepare periodic reports on its implementation, of the present
Convention and shall transmit to the Secretariat an annual report containing a summary of
the information specified in paragraph 6 (b) of this Article. Also to be submitted by the
parties is a biennial report legislative, regulatory and administrative measures taken to
enforce the provisions of the present Convention. This information shall be available to
the public, where this is not inconsistent with the national law of the Party concerned.
The annual reports of all Parties together, should provide statistical information on the
total volume of world trade in CITES species; information which is an invaluable element
for the assessment of the conservation status of the species concerned. By requiring a
standardised report, the Convention ensures that it has a true picture of individual
performance of the State parties, with respect to the implementation of their legal
obligations under CITES. Such reports in fact, reveal possible violations or frauds. The
two main objectives of reporting under CITES, are to enable monitoring of the extent of
world trade, regarding each species included in the Appendices to the Convention. This
would sure in identifying trade, which may be potentially harmful, as well as to enable
monitoring of the implementation of the Convention and to identify potentially illicit
trade.
These reports are subject to the scrutiny of the Secretariat, which can request further
information, as it may deem necessary to ensure that the obligations under the Convention
are implemented28. The Secretariat even felt the need to consolidate reports, by issuing a
number of 'Resolutions' on the preparation of annual reports29. The standard format
proposed is designed for data on specimens imported, exported, re-exported or introduced
from the sea, or on permits or certificates issued. It does not deal with any other
information to be included in a report30, which may be presented in the format considered
27
Article VIII, paragraphs 6 to 8, concern the records to be kept and reports to be made by the Parties.
Art XII 2(d).
29
Resolutions Conf. 2.16 and Conf. 3.10 were adopted, recommending certain improvements in the
preparation and submission of these reports. Pursuant to these Resolutions, guidelines for the submission of
annual reports were prepared by the Secretariat in 1982. This document has been prepared to ensure that the
data submitted by the Parties are comparable and of the maximum utility.
30
Such as information on administration and details of prosecutions.
28
17
by the reporting Management Authority to be the most appropriate. Notwithstanding the
issue of these guidelines the Secretariat felt the need to consolidate all previous
recommendations on reporting through a new Resolution31.
This Resolution again stresses the importance of annual reports, as the only available
means of monitoring the implementation of the Convention. Under this Resolution32 the
Secretariat is required to study the periodic reports of Parties. To sum up, the
Guidelines33 require State parties to work along general principles, which may be
summed up as follows;






Annual reports must contain information on imports, exports re-exports and
introductions from the sea of specimens of all species included in Appendices I, II and
III.
Each annual report should cover the period 1 January to 31 December.
Annual reports should be prepared in one of the three working languages of the
Convention: English, French and Spanish.
The data should be divided into two main categories: imports and exports and reexports.
As far as possible, the data in the report should record the actual trade that took place,
i.e. the quantity of specimens that entered or left the country. If it is not possible to
report the actual exports and re-exports, the data on such trade should come from each
permit and certificate issued. The report should state clearly whether the data used for
the records of imports and exports/re-exports are based on permits/certificates issued
or on actual trade.
The animal and plant species traded should be listed in the taxonomic order given in
the Appendices to the Convention34.

The report should include a record of each shipment of each species.

Summaries of trade in manufactured products of species in Appendices II and III need
31
Conf. 9.4.
Upon considering the provisions of Art XII para 2 (d).
33
As qualified by Resolution Conf. 9.4.
34
The following headings are: Mammalia; Aves; Reptilia; Amphibia; Pisces; Insecta; Arachnida;
Annelida; Mollusca; Anthozoa; Hydrozoa; Alcyonaria; Flora. The species of flora should be listed
following the alphabetical order of the families.
32
18
to indicate only the number and type of permits and certificates granted; the States
with which such trade occurred and the names of the species and the total numbers or
quantities and types of specimens.


The data should include entries, in the appropriate taxonomic position, in respect of
specimens seized and/or confiscated.
Any record relating to a specimen that was traded in accordance with an exemption,
under Article VII of the Convention, should be annotated to show this.
2.12
1976 The Convention for the Protection of the Mediterranean Sea
Against Pollution.
1996 The Barcelona Convention for the Protection of the
Environment and the Coastal Region of the Mediterranean.
The Convention for the Mediterranean Sea Against Pollution commonly known as the
Barcelona Convention (hereinafter referred to as the existing Convention) was adopted on
February 16th, 1976 and entered into force on February 12th, 1978. Malta has been a party
to this Convention since 1978. Malta ratified the Amendments to the Barcelona
Convention in 1999. The amended Convention changed the name of the existing
Convention to "The Convention for the Protection of the Marine Environment and the
Coastal Region of the Mediterranean". It has not yet entered into force because not
enough States have ratified it.
The amendments to the Barcelona Convention on the Protection of the Mediterranean Sea
against Pollution, are only part of a major, legal, restructuring process of the existing
Convention and its Protocols to update it, in accordance with modern legal developments
in the field of international environmental law. For instance, the amended Convention
also includes within its objectives post-Rio concepts in international environmental law
and policy, where the ultimate goal is not only to eliminate pollution in the Mediterranean
Sea to the fullest extent possible, but also to contribute towards its sustainable
development. These amendments in fact have brought about an upheavel in the reporting
obligations of State parties to the Convention.
The amended Convention obliges contracting parties to ensure that their, "competent
authorities" are to give the public, "appropriate access to information regarding the state
of application of the Convention and the Protocols, on activities/measures adversely
19
affecting or likely to affect it and activities carried out or measures taken in accordance
with the Convention and the protocols35".
This obligation is in line with one of the basic principles of environmental law, and in
keeping with the Economic Commission for Europe's Aarhus Convention on Prior
Informed Consent and Access to Information, to which Malta is not yet a party. The legal
implications here are wide and not only limited to information, regarding the status of
implementation of the Convention. Competent authorities may refuse access to
information on grounds of confidentiality, public security, or investigation proceedings.
Lack of data however, is not listed as a reason for not providing the information.
The obligation upon the State Parties to produce reports36 has been reworded and
rendered more detailed, to include that the Contracting Parties are to transmit to the
"organisation37" reports on the legal, administrative or other measures taken by the
contracting parties to implement the convention, the Protocols and the recommendations
adopted by their meetings and the effectiveness of such measures and problems
encountered in their implementation.
The issue of compliance, always a thorny subject in international legal instruments, is
here addressed in a completely reworded format38, which declares that the MCP shall, on
the basis of the periodic reports above mentioned and any other report submitted by the
Contracting parties, assess the level of compliance with the Convention and the
Protocols, as well as with the measures and recommendations. Where appropriate, they
shall recommend the necessary steps to bring about full compliance with the Convention
and the Protocols and promote the implementation of the decisions and
recommendations.
2.13
The 1976 Protocol for the Prevention of Pollution of the Mediterranean
Sea by Dumping from Ships and Aircrafts.
The 1996 Protocol for the Prevention and Elimination of Pollution of the
Mediterranean Seas by Dumping from Ships and Aircraft or
Incineration at Sea.
The Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from
Ships and Aircraft commonly known as, "The Dumping Protocol" was adopted on the
16th February 1976, by the conference of Plenipotentiaries of the Coastal States of the
Mediterranean Region for the Protection of the Mediterranean Sea, held in Barcelona to
become, "The 1996 Protocol for the Prevention and Elimination of Pollution of the
Mediterranean Sea by Dumping from Ships and Aircraft or Incineration of Sea".
35
Art. 15 Public Information and Participation.
Art. 26.
37
defined in Art 2 as responsible for carrying out the Secretariat functions.
38
Art. 27.
36
20
The basic obligation of the amended Protocol39 declares that the contracting parties to the
Protocol shall "prevent, abate and eliminate to the fullest extent possible pollution of the
Mediterranean Sea, caused by dumping from ships and aircraft and incineration at sea".
Parties to the Protocol shall apply the obligations imposed by the Protocol to40:



Ships and aircraft registered in its territory or flying its flag:
Ships and aircraft loading in its territory, wastes or other matter which are to be
dumped41;
Ships and aircraft believed to be engaged in dumping in area under its jurisdiction in
this matter42.
Parties are to ensure, that their maritime, inspection, ships and aircraft and other
appropriate services, are to report to the authorities, any incidents or conditions in the
Mediterranean Sea Area, which may give rise to suspicion, that the obligations of this
Protocol may have been infringed. Parties may, "if appropriate", report to each other.
2.14
The Protocol Concerning Co-operation in Combating Pollution of the
Mediterranean Sea by Oil and other Harmful Substances in Cases of
Emergency.
The Contracting Parties to this Protocol, shall co-operate in taking the necessary measures
in cases of grave and imminent danger to the marine environment, the coast or related
interests of one or more of the Parties, due to the presence of massive quantities of oil or
other harmful substances resulting from accidental causes of an accumulation of small
discharges which are polluting or threatening to pollute the Mediterranean Sea43.
The Protocol concerning Co-operation in Combating Pollution of the Mediterranean Sea
of Oil and Other Harmful Substances in Cases of Emergency known as "The Emergency
Protocol", was adopted on 16 February 1976, by the Conference of Plenipotentiaries of
39
Article 1.
Art 11 (1) (a-c).
41
Malta International Airport and the Freeport must be made fully aware obligations of this Protocol.
42
As above.
43
Art 1.
40
21
the Coastal States of the Mediterranean Region for the Protection of the Mediterranean
Sea, held in Barcelona. The Protocol entered into force on 12 February 1978.
Under this Protocol, each Party undertakes to disseminate to the other Parties,
information concerning:



The competent national organization or authorities responsible for combating
pollution of the sea by oil and other harmful substances:
The competent national authorities responsible for receiving reports of pollution of
the sea by oil and other harmful substances and for dealing with matters concerning
measures of assistance between Parties:
New ways in which pollution of the sea by oil and other harmful substances may be
avoided, new measures of combating pollution and the development of research
programmes.
Parties which have agreed to exchange information directly between themselves shall
nevertheless communicate such information to the regional centre. The latter shall
communicate this information to the other Parties and, on a basis of reciprocity, to coastal
States of the Mediterranean Sea Area which are not Parties to this Protocol44. The Parties
undertake to co-ordinate the utilization of the means of communication at their disposal
in order to ensure, with the necessary speed and reliability, the reception, transmission
and dissemination of all report and urgent information which relate to the occurrences and
situation of marine pollution45. The regional centre shall have the necessary means of
communication to enable it to participate in this co-ordinated effort and, in particular, to
fulfil the functions assigned to it.
Each Party shall issue instructions to the masters of ships flying its flag and to the pilots
of aircraft registered in its territory requiring them to report by the most rapid and
adequate channels in the circumstances, and in accordance with annex I to this Protocol46,
either to a Party or to the regional centre:


All accidents causing or likely to cause pollution of the sea by oil or other harmful
substances;
The presence, characteristics and extent of spillages of oil or other harmful substances
observed at sea which are likely to present a serious and imminent threat to the marine
environment or to the coast or related interests of one or more of the Parties.
44
Art. 6
Art. 7
46
Annex I lists the details which must be provided by the report.
45
22
The information collected shall be communicated to the other Parties likely to be affected
by the pollution:


By the Party which as received the information, either directly or preferably, through
the regional centre: or
By the regional centre47.
2.15
The 1996 Protocol for the Protection of the Mediterranean Sea Against
Pollution from Land Based Sources and Activities.
The Protocol on Land Based Sources known as the "The LBS Protocol" was adopted on
17th May 1980, by the Conference of Plenipotentiaries of the Coastal States of he
Mediterranean Region for the Protection of the Mediterranean Sea Against Pollution from
Land based Sources held in Athens. The original Protocol48 was modified by
amendments adopted on 7th March 199649. The amended Protocol, renamed as the
"Protocol for the Protection of the Mediterranean Sea Against Pollution form Land Based
Sources and Activities has not yet entered into force.
The Protocol addresses discharges originating from land based points and diffuse sources
and activities within the territories of the contracting parties that may affect directly or
indirectly the Mediterranean Sea Area.
Inputs of polluting substances transported by the atmosphere to the Mediterranean Sea
Area, from land based sources or activities within the territories of the Contracting Parties
under the conditions defined in annex III to this Protocol.
The general obligations of the Parties under the Protocol are:

To eliminate pollution deriving from land based sources and activities, particularly to
phase out inputs of substances that are toxic, persistent and liable to bioaccumulate
listed in Annex I to the Protocol.
47
Art. 8
The Protocol came into force on 17th June 1983.
49
It was adopted by the conference of Plenipotentiaries on the Protocol for the Protection of the
Mediterranean Sea against Pollution from Land Based Sources held in Syracuse, on 6 th and 7th march 1996.
48
23

To elaborate and implement individually or jointly, as appropriate, national and
regional action plans and programmes, containing measures and timetables for their
implementation.
The competent authorities of Party States must be provided with systems of inspection to
assess compliance. The Protocol also obligates State parties to set up a system of
sanctions in case of non-compliance and to enforce it. Article 7 obliges State parties to
formulate and adopt, in co-operation with the competent international organisations,
common guidelines, standards and criteria and specifies the priority areas where this
should be done.
Parties are to carry out monitoring activities and make the findings accessible to the
public, so as to assess the levels of pollution along the coasts, particularly with regard to
the sectors of activity and categories of substances, listed in Annex I to the Protocol and
to provide information in this respect, from time to time50. Monitoring is also to be made
to evaluate the effectiveness of action plans, programmes and measures, implemented
under this Protocol, to eliminate to the fullest extent possible, pollution of the marine
environment. Parties are to submit biannual reports51 of measures taken, results achieved
and if the case arises, of difficulties encountered in the application of this Protocol52.
The Protocol53 provides:
"The transboundary movement of hazardous wastes through the territorial sea of a state
of transit, only takes place with the prior notification by the State of export to the State of
transit as specified in Annex IV of the Protocol54.
Under this Protocol there is no mention of any form of authorisation, which if withheld
would hinder innocent passage. The obligation is on the State of Export alone, in the
sense that the Protocol calls for notification without the need of authorisation. The State
parties are duty bound to ensure, there is regional co-operation and in doing so, they must
submit annual report to the Organisation regarding the hazardous wastes they generate
and transfer within the Protocol area, to enable the Organisation to produce a waste audit.
Public participation and the duty to inform the Organisation, is also a duty incumbent
upon member States under the Protocol. The Protocol also provides that the Party, which
has reason to believe that another Party is acting or has acted in breach of its obligations,
under the Protocol, is to inform the Organisation accordingly and simultaneously and also
to immediately inform directly or through the Organisation, the Party against whom
allegations are made. The Organisation has to verify the allegation and to submit a report
thereon, to the Parties.
50
Art. 8.
Art. 13.
52
The Protocol says that such assistance shall include special training of personnel.
53
Art. 6(4).
54
Annex IV is in fact a long list of details to be requested by the State of transit.
51
24
2.16
Convention on the Conservation of European Wildlife and Natural
Habitats.
The aims of this Convention more popularly known as the Berne Convention, are to
conserve wild flora and fauna and their natural habitats, especially those species and
habitats whose conservation requires the co-operation of several States, and to promote
such co-operation. Particular emphasis is given to endangered and vulnerable species,
including endangered and vulnerable migratory species.
The Contracting Parties shall take requisite measures, to maintain the population of wild
flora and fauna at, or adapt it to, a level which corresponds in particular to ecological,
scientific and cultural requirements, while taking account of economic and recreational
requirements and the needs of sub-species, varieties or forms at risk locally. Each
Contracting Party shall take steps to promote national policies, for the conservation of
wild flora, wild fauna and natural habitats, with particular attention to endangered and
vulnerable species, especially endemic ones and endangered habitats, in accordance with
the provisions of this Convention.
Each Contracting Party shall take appropriate and necessary legislative and administrative
measures, to ensure the conservation of the habitats of the wild flora and fauna species,
especially those specified in the Appendices I and II, and the conservation of endangered
natural habitats. Each Contracting Party may make exceptions from the obligations of the
Convention55 and from the prohibition of the use of the means mentioned in the
Convention56, provided that there is no other satisfactory solution and that the exception
will not be detrimental to the survival of the population concerned. The exceptions are
justified if they are made:



55
56
for the protection of flora and fauna;
to prevent serious damage to crops, livestock, forests, fisheries, water and other forms
of property;
in the interests of public health and safety, air safety or other overriding public
interests;
Namely Articles 4, 5, 6, 7.
Article 8.
25


for the purposes of research and education, of repopulation, of reintroduction and for
the necessary breeding;
to permit, under strictly supervised conditions, on a selective basis and to a limited
extent, the taking, keeping or other judicious exploitation of certain wild animals and
plants in small numbers.
The Contracting Parties shall report every two years to the Standing Committee on the
exceptions made under the preceding paragraph. These reports must specify:





the populations which are or have been subject to the exceptions and, when practical,
the number of specimens involved;
the means authorised for the killing or capture;
the conditions of risk and the circumstances of time and place under which such
exceptions were granted;
the authority empowered to declare that these conditions have been fulfilled, and to
take decisions in respect of the means that may be used, their limits and the persons
instructed to carry them out;
the controls involved.
The Contracting Parties undertake, in addition to these measures57 to co-ordinate their
efforts for the protection of the migratory species specified in Appendices II and III,
whose range extends into their territories. Each Contracting Party shall inform the
Standing Committee, about the species receiving complete protection on its territory and
not included in Appendices I and II. The Standing Committee shall be responsible for
following the application of this Convention. It may in particular:


57
keep under review the provisions of this Convention, including its Appendices, and
examine any modifications necessary:
make recommendations to the Contracting Parties concerning measures to be taken
for the purposes of this Convention;
Specified in Articles 4, 6, 7 and 8.
26
2.17
The Bonn Convention on the Conservation of Migratory Species of Wild
Animals.
The Convention outlines two basic principles the small conservation of migratory species
which requires that all range states have to take action individually and in co-operation
with one another58. As well as, the need to avoid migratory species from becoming
endangered.
In so doing the State parties shall:

Promote co-operation to support research re migratory species.

Provide immediate protection to migratory species.

Conclude agreements to conserve and manage migratory species.
The Convention requires the listing in Appendix I, of endangered migratory species59,
according to best available and reliable scientific evidence. Removal from the list, is only
permitted when the Conference of the Parties (COP), decides the species is no longer
endangered and if such removal would not lead to it, becoming endangered.
The legal obligation because of the wording used, is rather weak, however because it
states:
"Range State parties re Appendix I species shall endeavour to":

Conserve and restore their habitats to remove species from danger of extinction.

Prevent, remove, minimise, adverse activities which impede/prevent their migration.

"Where feasible and appropriate", prevent and control factors likely to further
endanger species e.g. control the introduction of or eliminate where already
introduced exotic species.
58
A State that exercises jurisdiction over any part of the range of that migratory species 'Range' is defined
as all areas which that migratory species inhabits, stays in temporarily, crosses, or overflies at any time on
its normal migration route.
59
'endangered' in relation to a particular migratory species means that the migratory species is in danger of
extinction throughout all, or in a significant portion of its range. 'Migratory species' means the entire
population or any geographically separate part of the population of any species or lower taxon of wild
animals, a significant proportion of whose members cyclically and predictably cross one or more national
boundaries.
27
A precise and specific legal obligation however is the 'taking', of Appendix I species,
which is to be prohibited in State parties, which are 'Range States' of migratory species60.
Appendix II under the Convention provides for the listing of Species which have:

An unfavourable conservation statues.

Require international agreements for their conservation and management.

Would benefit significantly from co-operation thru' international agreement.
There is no legal obligation on party States, which are "Range States" of Appendix II
Species, to conclude agreements. The wording is again rather weak and such State parties,
are only required to endeavour to conclude agreements. Priority should be given to those
species with an 'unfavourable conservation status'61.
A list of Range States of migratory species listed in Appendix I and II, is kept by the
Secretariat. It is the duty of State parties, to inform the Secretariat when they are "Range
States", of any the migratory species, listed in Appendices I and II and also to inform the
COP through the Secretariat regarding:


Provisions of information they have given to vessels flying their flag, when these are
engaged in taking migratory species outside their national jurisdiction.
Any measures they are taking to implement the provisions of this Convention for
these species.
Therefore is an obligation upon Malta to report to the COP and the Secretariat
accordingly.
The Secretariat is to maintain a liaison between the parties, the receiving of reports and
dissemination of information, the publishing of a list of range states, as well as the
conclusion of Agreements, and the publishing public information campaigns.
2.17.1 The Agreements for the Conservation of European Bats. (EUROBATS) and
The Agreement for the Conservation of Cetaceans in the Mediterranean Black Sea
and their Contiguous Zones (ACCOBAMS).
60
Exceptions under the Convention: Taking for scientific purposes, to enhance propagation/survival of the
species, to accommodate needs of traditional subsistence users of such species extraordinary circumstances
so requires. Exceptions are to be communicated to the Secretariat. The COP is always free to recommend
the Range Sate to take any further measures.
61
'unfavourable conservation statues of a migratory species' means the sum of the influence acting on the
migratory species that may affect its long term distribution and abundance.
28
The objective of each agreement is to restore the migratory species concerned, to a
favourable conservation status. Therefore62 each agreement should deal with the aspects
of conservation and management of migratory species that serve to achieve such an
objective.
The Scope of each Agreement should:



Cover the whole of the range of migratory species.
Be open to accession by all range States of the species, even if they are not parties to
the Convention.
Where possible, deal with more than one migratory species.
Agreements provide for the identification of species, range and migratory routes, the
appointment of a national competent authority in each State party to implement the
Agreement63 as well as the setting up of appropriate machinery to monitor, carry out and
report on the Agreement, amongst other matters. Agreements are also to provide for the
exchange of information.
2.18
The 1979 Geneva Convention on Long-Range Transboundary Air
Pollution74.
This Convention remains the only major regional agreement devoted to the regulation and
control of transboundary air pollution. It enable the parties to treat the European air mass
as a shared resource and the problem as one requiring co-ordination of pollution control
measures and common emission standards. Its purpose is thus to prevent, reduce, and
control transboundary air pollution, both from new and existing sources, and it contains
no provision on liability for air pollution damage, whether under international law or
through civil proceedings.
'Long-range transboundary air pollution', to which it applies, is defined as pollution
having effects at such a distance that 'it is not generally possible to distinguish the
contributions of individual emission sources or groups of sources75'.
62
Art V of the Bonn Convention.
The competent authority in this case would be the Environment Protection Department.
74
Gundling, in Flinterman, Kwiatkowska, and Lammers, Transboundary Air Pollution, 19; rosencranz, 75
AFIL (1981), 975; Fraenkel, 30 Harv. ILF (1989), 447.
75
Article 1(b).
63
29
No concrete commitments to specific reductions in air pollution are contained in the
treaty itself. Instead, the parties have committed themselves only to broad principles and
objectives for pollution control policy.
Thus there is only obligation to 'endeavour to limit' and 'as far as possible, gradually
reduce and prevent' air pollution76. To achieve this, parties undertake to develop the best
policies, strategies, and control measures, but these must be compatible with 'balanced
development' and the use of 'best available technology' which is 'economically feasible'77.
A great deal of latitude, is thus left to individual states to determine what level of effort
they will put into pollution control and what cost they are willing to pay in overall
economic development.
The Geneva Convention also contains provisions on notification and consultation in cases
of significant risk of transboundary pollution. These are only loosely comparable to the
customary rule requiring consultation regarding shared resources or environmental risk78.
Only 'major' changes in policy or industrial development likely to cause 'significant'
changes in long-range air pollution must be notified to other states79. Otherwise,
consultations need only be held at the request of parties 'actually affected by or exposed
to a significant risk of long-range transboundary air pollution'80.
Despite its evident weaknesses, the Geneva Convention's main value is that it provides a
framework for co-operation and for the development of further measures of pollution
control. It commits the parties to exchange information, conduct research, and consult on
policies, strategies, and measures for combating and reducing air pollution. The
convention is thus both a basis for continuing study of the problem81, and for taking
further co-ordinated action to deal with it.
2.19
1979 The Protocol to the Convention on Long Range Transboundary Air
Pollution on Long-Term Financing of the Co-Operative Programme for
Monitoring and Evaluation of the Long Rang Transmission of air
Pollutants in Europe (EMEP).
No reporting requirements
76
Article 2.
Article 6. This article is directed 'in particular' at new or rebuilt installations.
78
Supra, pp.. 102-7.
79
Article 8(b), Rosencranz, 75 AFIL (1981), 977 argues that 'few if any cases are likely to arise to trigger
this article' because the threshold is so high.
80
Article 5.
81
Article 3, 4,5.
77
30
2.20 The 1982 United Nations Convention on the Law of the Sea.
For environmental law purposes one may consider two of the many chapters of this
Convention, one relating to the Protection and Reservation of the Marine Environment
and the relating to fisheries.
2.20.1 Protection and Preservation of the Marine Environment.
The Law of the Sea Convention (LOSC) obliges state parties to notify other States and
other competent international organisations if they are likely to be affected by imminent
or actual damage to the marine environment by pollution72. To this end, States shall
develop and promote contingency plans for responding to pollution incidents in the
marine environment73. Co-operation is also a duty, directly or through competent
international organizations, to exchange information and data acquired about marine
pollution74.
As a consequence State parties, would then be able to establish appropriate scientific
criteria for the formulation and elaboration of rules, standards and recommended
practices and procedures for the prevention, reduction and control of marine pollution75.
States shall also publish reports of the results, or provide such reports at appropriate
intervals to the competent international organizations, which should make them available
to all States76. Such reports would include results of any impact assessments conducted,
regarding activities likely to cause substantial pollution or significant and harmful
changes to the marine environment77.
Dumping within the territorial sea and the exclusive economic zone or onto the
continental shelf, shall not be carried out without the express prior approval of the coastal
State, which has the right to permit, regulate and control such dumping after due
consideration of the matter with other States, which by reason of their geographical
situation may be adversely affected thereby78.
States which establish particular requirements for the prevention, reduction and control of
pollution of the marine environment, as a condition for entry of foreign vessels into their
ports, or internal waters, or for a call at their off-shore terminals, shall give due publicity
72
Law of the Sea Convention Art. 198.
Ibid Art. 199.
74
Ibid Art. 200.
75
Ibid Art. 201.
76
Ibid Art. 205.
77
Ibid Art. 206.
78
Ibid Art. 210.
73
31
to such requirements and shall communicate them to the competent international
organization. Whenever such requirements are established, in identical form, by two or
more coastal States, in an endeavour to harmonize policy, the communication shall
indicate, which States are participating in such co-operative arrangements. Every State
shall require the master of a vessel flying its flag, or pertaining to its registry, when
navigating within the territorial sea of a State participating in such co-operative
arrangements, to furnish, upon the request of that State, information as to whether it is
proceeding to a State of the same region, participating in such co-operative arrangements.
If so, it has to indicate whether it complies with the port entry requirements of that
State79.
Under the Convention, coastal States may have reasonable grounds for believing that a
particular, clearly defined area of their respective exclusive economic zone, is an area
where the adoption of special mandatory measures for the prevention of pollution from
vessels is required. This may be for recognized technical reasons, in relation to its
oceanographical and ecological conditions, as well as its utilization or the protection of its
resources and the particular character of its traffic. In this context, the coastal States, after
appropriate consultations through the competent international organization with any other
States concerned, may, for that area, direct a communication to that organization,
submitting scientific and technical evidence in support and information, on necessary
rereception facilities. Within 12 months after receiving such a communication, the
organization shall determine whether the conditions in that area, correspond to the
requirements, set out above. If the organization so determines, the coastal States may, for
that area, adopt laws and regulations for the prevention, reduction and control of pollution
from vessels implementing such international rules and standards of navigational
practices as are made applicable, through the organization, for special area. These laws
and regulations shall not become applicable to foreign vessels, until 15 months after the
submission of the communication to the organization.
If the coastal States intend to adopt additional laws and regulations for the same area for
the prevention, reduction and control of pollution from vessels, they shall, when
submitting the aforesaid communication, at the same time notify, the organization
thereof. Such additional laws and regulations may relate to discharges or navigational
practices, but shall not require foreign vessels to observe design, construction, manning or
equipment standards, other than generally accepted international rules and standards.
These rules shall become applicable to foreign vessels, 15 months after the submission of
the communication to the organization, provided that the organization agrees within 12
months, after the submission of the communication.
These international rules and standards referred to above, should include inter alia, those
relating to prompt notification to coastal States, whose coastline or related interests may
be affected by incidents, including maritime casualties, which involve discharges or
probability of discharges.80
79
80
Ibid Art. 211 (3).
Ibid Art 211 (6)
32
2.20.2 The Protection of Marine Living Resources - Fisheries.
The Convention has been successful in establishing the right of coastal States to set up,
implement and enforce legislative measures and obligations regarding the exploitation of
marine living resources situated within the marine territory over which they have
jurisdiction.
The 1982 LOSC endowed coastal States with a twelve-mile territorial sea over which
they are sovereign but nevertheless subject to any international obligations under the
Convention itself, customary international rules or any other relevant Conventions to
which the coastal State is a party. Furthermore the extension of the territorial sea enable
the coastal State, to have a greater say in the utilisation and exploitation of the marine
living resources, but in this way such activities are carried out in accordance with any
national laws on the preservation of the marine environment which the State might enact,
corresponding to its obligations under the 1982 LOSC and other international and
regional agreements on the subject.
Under the 1982 LOSC, the coastal State which declares an EEZ has also sovereign rights
for the purpose of exploiting, conserving and managing both the living and non-living
natural resources of the waters, superjacent to the seabed and its subsoil and over all other
economic activities for up to 200 hundred nautical miles from the baselines of the
territorial sea. It also has jurisdiction for the protection and preservation of the marine
environment. Malta, although a State party to the LOSC has not declared an EEZ but
obviously it has the potential to do so and therefore to enjoy the rights thereunder.
With the establishment of the regime of the EEZ, the 1982 LOSC has done a great deal in
improving the opportunity of coastal States to apply and enforce any regimes necessary to
conserve and protect living resources in that zone. The coastal State is in a better position
therefore, to restrict over-fishing or any other form of over-exploitation to the benefit of
marine living resources in the EEZ.
The restrictions on freedom of fishing in the EEZ are not absolute. The coastal State
must determine its total allowable catch (TAC) of living resources and its capacity81 to
harvest it. The 1982 LOSC permits other States to have access to the surplus if the
coastal State cannot itself take the whole TAC. Such access is possible through
agreements which the coastal State makes subject to the 1982 LOSC detailed provisions
of its regulatory powers82.
A number of contributing factors are taken into account to determine the TAC of the
Coastal State, such as the economic significance of fisheries to the coastal State and other
national interests, which might include conservation measures. Article 61 of the 1982
LOSC qualifies the sovereign right of the coastal State to exploit its EEZ's living
81
82
Ibid Art 208 (4)
Ibid Art 61 (1)
33
resources. The best available scientific knowledge must also be taken into account, in
qualifying the TAC and the coastal State must ensure that the living resources of the EEZ
are not threatened by over-exploitation83. The coastal State must co-operate with
competent international organisations at the global, regional or sub-regional level. Article
61(3) provides that such measures are to be so designed so as, "to maintain or restore
populations of harvested species at levels which can produce the maximum sustainable
yield (MSY) as qualified by relevant and economic factors, including the economic needs
of coastal fishing communities and the special requirements of developing states".
Fishing patterns, the interdependence of stocks and any generally recommended
international minimum standards must also be taken into account. The coastal State
therefore could restrain full exploitation of its resources in the interests of conservation,
particularly in the case of marine mammals84.
It appears that States, like Malta for example often prefer to claim an Exclusive Fishing
Zone rather than an EEZ and generally speaking, the conservatory provisions under the
1982 LOSC regime for the EEZ are not being adhered to. In any case the coastal States
are empowered by virtue of their claim of an EEZ or EFZ to enforce national
conservation legislation such as fishing methods, closed and open fishing seasons and the
restriction of fishing in certain ecologically vulnerable areas.
The 1982 LOSC lays down an ambiguous duty upon its parties, to co-operate in
conserving and managing living resources in the high seas and urges States exploiting the
same resource in the same area, to enter into negotiations to establish regional and
subregional fisheries' organisations for this purpose "as appropriate"85.
When determining the factors which States must take into consideration in establishing
the TAC and other conservation measures for the high seas, the 1982 LOSC lays down
conditions for the State's rights to exploit living resources in their EEZ. There is however
no obligation to establish a TAC but management must be based on the MSY qualified by
economic and environmental factors, interdependence of stocks, effects on associated
species and any generally recommended international minimum standards.
Another issue which must be addressed as a result of the migratory nature of fish is the
conservation of common stocks that traverse the EEZ and high seas/EEZ boundaries.
The 1982 LOSC does not subject these stocks to any harmonisation standards. Effective
conservation measures require international co-operation between the harvesting and
coastal States to ensure their protection throughout their entire range. Any scientific
findings must be harmonised as provided for in the 1979 Convention on the Conservation
of Migratory Species of Wild Animals. The Convention86 obligates concerned coastal
States and States fishing stocks beyond EEZ's, to "seek to agree on measures necessary to
83
Ibid Art 62 (2)
Vide Art 65.
85
Ibid Art 297 (3) (a)(b)
86
Art 63
84
34
co-ordinate and ensure the conservation values and development" of such stocks. States
have the option to do so either directly or through 'appropriate' regional and sub-regional
organisations. Such requirements do not apply to the area constituting the territorial sea
of the coastal State which is unencumbered by conservation obligations. This is a flaw in
the Convention because common stocks migrate even into the territorial sea and these
provisions fail to consider the link between the three jurisdictional areas.
2.21 The 1982 Vienna Convention on the Protection of the Ozone Layer.
The major obligations under the Convention are:




The duty to adopt legal and administrative controls on a municipal level to protect
human health and the environment from the adverse effects of ozone depletion.
The duty to co-operate, harmonise and formulate agreed measures, procedures and
standards for the implementation of this convention.
The duty to take concern assessments of the causes and effects of ozone depletion and
the duty to transmit that information.
It is also a duty under the Convention to exchange information and technology.
Despite this, the Vienna Convention may be termed as a weak compromise, which merely
demands more research and commitment, to firm action. Its empty framework was the
result of political conflicts amongst contracting parties, at the time of its negotiations as
these were unable to agree on proposals, for more specific control measures.
2.22 The Montreal Protocol on Substances that Deplete the Ozone Layer.
Two years after the adoption of the Vienna Convention on the Protection of the Ozone
Layer, the State parties to it, agreed to the Montreal Protocol which is definitely more
substantive in nature, adding "flesh" to the Vienna convention's framework. The
Protocol's flexibility allows for constant evolution so much so that it has been amended
35
twice by what are known as the 1990 London Amendments and the 1994 Copenhagen
Amendments87. The Protocol in fact, sets firm targets to reduce and eventually to
eliminate consumption and production of a range of ODS. The Protocol provides for the
establishment of controls of consumption and production patterns, to protect the interests
of producers and importers, to deter price inflation and over-production, in the interim
period till the phase-out.
The enforcement measures under the Protocol are very strong. There is even a formal
non-compliance procedure i.e. any party may involve non-compliance of another party
and the matter referred to implementation committee for solution. The Complainant puts
forward a case before the Implementation Committee, which hears both parties to seek an
amicable solution. The Committee reports to the Conference of the Parties who decides
upon steps to bring full compliance. Regular monitoring of implementation on a national
level is accurate through standard reporting measures.
The Montreal Protocol has indeed set an important precedent for International
Environmental Law as it attempted to tackle a problem, which falls outside the traditional
ambits of 'pollution' and ' nature conservation' but which rather pertains to a new phase in
the evolution of international environmental law and policy, namely the need to address
issues of 'global' concern.
2.23
The Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal:
The scope of the convention is the control and safe disposal of hazardous wastes, subject
to transboundary movement. The Wastes so covered, are those listed in Annex I88 but
Wastes listed in Annex I, which do not possess the characteristics mentioned in Annex
III89 are not subject to such control. Wastes not listed in Annex I, but which are defined
or considered as hazardous by the domestic legislation of the Party of export, import and
transit are included. Other Wastes90, subject to transboundary movement and are referred
to as “other wastes” for the purposes of Convention. These are "Wastes Requiring
Special Consideration".
The Convention’s provisions, exclude wastes which are radioactive wastes from ship
operational discharges, covered by other international instruments91.
87
These amendments amplified the list of and anticipated the phasing out of Ozone Depleting Substances.
This Annex lists categories of Wastes that are to be controlled.
89
Which lists hazardous characteristics.
90
These are wastes listed in Annex II.
91
Namely MARPOL, and the 1982 Law of the Sea Convention.
88
36
The Secretariat of the Convention is duty bound to inform parties accordingly, about
measures taken by State parties regarding wastes, not listed in Annex I and II, but is
considered or defined as hazardous under its national legislation, as well as any
requirements concerning their transboundary movement and any changes under the
above. It is up to the party, to make such information available to their exporters.
The general obligations of the Parties are:









92
93
To ensure that the generation of hazardous waste/other wastes is reduced to a
minimum, taking into account, social, technological and economic aspects
To make available adequate waste disposal facilities, for the sound management of
hazardous and other wastes.
To take measures to prevent pollution from and the management of hazardous and
other wastes and if pollution occurs, to minimize consequences thereof.
To reduce to a minimum, transboundary movement of hazardous and other wastes,
consistent with sound efficient environmental management, of such wastes.
To conduct transboundary movement of hazardous and other wastes, in a manner
which protects human health and the environment, against the adverse effects which
may result from such a movement.
To prohibit the export of hazardous and other wastes, to a State or group of States
which are Parties92 which have prohibited by their legislation, all imports of such
wastes.
To require that information93 is provided to the States concerned, to clearly state the
effects which the proposed movement may have on human health and the
environment.
To prevent the importation of hazardous and other wastes, if in case of transboundary
movement of hazardous wastes it has reason to believe wastes are not to be managed
in environmentally sound manner.
To cooperate with other Parties, and International Organisations, directly and through
the Secretariat, re inter alia, the dissemination of information on the transboundary
movement of hazardous and other wastes, to improve environmentally sound
management and prevent illegal traffic.
Particularly developing countries
As per Annex VA.
37
Illegal traffic in hazardous waste, is termed an international criminal offence under the
Convention. Parties are to take appropriate legal, administrative and other measures, to
implement and enforce the provisions of this Convention and measures to prevent and
punish conduct, in contravention of the Convention. Trade in Hazardous Wastes with
Non-Parties is prohibited. State Parties in fact, are not to permit that hazardous or other
wastes, is exported to, or imported from, a non-party.
State Parties are also to:






To prohibit all export, of all types of wastes for disposal within an area south of 60
degrees, South latitude, whether or not such wastes are subject to transboundary
movement.
To prohibit persons under its national jurisdiction, from transporting/disposing of
hazardous or other wastes unless authorised or allowed to perform such operations.
To require that hazardous and other wastes, subject to transboundary movement is
to be
- packaged
- labelled
- transported in conformity with generally accepted and recognized
international rules and standards in the field of packaging,
- labelling and transport94.
To require that movement documents, are required to accompany hazardous and other
wastes. Movement documents apply from where transboundary movement
commences, to point of disposal
To require that hazardous and other wastes are to be exported are managed in an
environmentally sound manner, in accordance with the Convention.
Parties are to take appropriate measures to ensure that the transboundary movement of
hazardous wastes is allowed only if: State of export does not have the technical
capacity, necessary facilities, capacity or suitable disposal sites to dispose of the
wastes in question, in an environmentally sound and efficient manner.
-
Wastes in question, are requested as a raw material for recycling or recovery
industries, in the State of import.
-
Transboundary Movement of Wastes in question, is in accordance with other criteria
decided by the Parties, provided they do not differ from the objectives of the
Convention.
94
Due account is to be taken of relevant, internationally recognized practices.
38
State Parties where hazardous waste or other wastes are generated and where therefore
wastes are to be managed in an environmentally sound manner, cannot transfer such an
obligation upon the State of import/transit.
Parties may impose additional requirements to protect better human health and the
environment once they are consistent with the provisions of the Convention consistent
with International law
The Convention obliges Parties to establish competent authorities to facilitate the
implementation of this Convention95.
It is this competent Authority which is to is to receive notification of transboundary
movement of hazardous and other wastes, any information related to it, to respond to any
notification above mentioned. The State of export shall notify, or require the generator or
exporter to notify, in writing, through the channels of the competent authority of the State
of export, the competent authority of the States concerned regarding any proposed
transboundary movement of hazardous or other wastes. The notification is to contain the
information specified in Annex V A. It is to be written in a language acceptable to State
of import. Only 1 notification needs to be sent to each State concerned96.
The State of import is to reply to the notifier in writing consenting to the movement
with/without conditions denying permission for movement. It may request additional
information. A copy of the final response of the State of import shall be sent to the
competent authorities of the States concerned which are Parties.
The State of export is not to allow the generator or the exporter, to commence
transboundary movement, until it has received written confirmation that the notifier has
received written consent or confirmation of the existence of a contract between the
exporter and the disposer, specifying the environmentally sound management of the
wastes question. A party, which is a State of Transit, shall acknowledge, promptly to the
notifier receipt of notification. It may subsequently answer the notifier in writing, within
60 days, consenting to the movement with/without denying permission for the movement
requesting additional information
The State of export shall not allow transboundary movement of hazardous and other
waste to commence, until it has received the written consent of State of transit. Any
party, who decides not to require prior written consent generally and under specific
conditions, for the transit of transboundary movements of hazardous wastes or other
wastes or who modifies its requirements in this respect, shall forthwith inform other
parties of its decision97. In the latter case, if no response is received by the State of
95
Article 5.
Article 6.
97
In accordance with Article 13 regarding Transmission of Information.
96
39
export within 60 days of the receipt of a given notification by the State of transit, the
State of export, may allow the export to proceed through the State of transit.
Only in the case, of the transboundary movement of wastes legally defined or considered
as hazardous, the exporter and State of export are to comply mutatis mutandis with the
requirements imposed on the importer and disposer of the State of import98. In other
words, parties are to require that each person taking charge of a transboundary movement
of hazardous or other wastes, signs the movement document, either upon delivery or upon
the receipt of the wastes in question. Parties are also required to ensure, that the disposer
informs both the exporter or the competent authority of the State of export, that the
disposer has received the wastes in question and when in due time, the disposal is to be
completed, as specified in the notification. If the State of export receives no such
information, its competent authority or exporter who shall notify the State of import.
If the States concerned submit their written consent, the State of export may allow the
generator or exporter to use a general notification where hazardous wastes or other wastes
having the same physical and chemical characteristics are shipped regularly to the same
disposer via the Customs office of exit of the State of import, via the Customs office of
entry, of the State of import. In case of transit, via the same customs office of entry and
exit, of the State or States of transit.
The States concerned may give their written consent for the use of the general
notification99 subject to the supply of certain infromation such as the exact quantities or
periodical lists of hazardous or other wastes to be shipped. General notification and
written consent referred to above may cover multiple shipments of hazardous/other
wastes during a maximum period of 12 months. The notification and response required
by this Convention, shall be transmitted to the competent authority of the Parties
concerned. In case of non-parties, notification and response are to be transmitted to
appropriate authorities. Transboundary movement of hazardous and other wastes, are to
be covered by an insurance, bond, or other guarantee as requested by the State of import
or any State of transit which is a Party.
This article relates to the transboundary movement from a party through States which are
not parties.
This Article is of crucial importance and obliges parties, to reimport hazardous and other
waste, in case of transboundary movement, to which the consent of States concerned has
been given, but which operation cannot be completed in accordance with the terms of the
contract. The State of export in such cases is to ensure, that the wastes in question are
taken back into the State of export by the exporter, if alternative arrangements cannot be
made for their disposal in an environmentally sound manner within 90 days from the time
that the importing State informed the State of export and Secretariat100. The State of
98
As specified in Art 6 (9).
Referred to in para 6.
100
Or such other period of time the States concerned agree.
99
40
export or any Party of transit, shall not oppose, hinder or prevent the return of those
wastes to the State of export.
Under the Convention, the following situations re the transboundary movement of
hazardous and other wastes, shall be considered as constituting illegal traffic of hazardous
Wastes.
 Transboundary movement without notification to the States concerned as
required by the Convention
 Transboundary movement without the consent of the State concerned as required
by the Convention.
 Transboundary movement which occurs if the consent obtained is vitiated.
 Transboundary movement that does not conform with the documents in a
material way.
 Transboundary movement that results in the deliberate disposal (e.g. dumping) of
hazardous or other wastes, contrary to the Convention and the general principles
of international law.
If illegal traffic is a result of the conduct of the exporter or the generator, the State of
export shall ensure that the wastes are taken back by exporter or generator, or if necessary
by the State of export itself. If the above is impractibable, the wastes concerned are to be
otherwise disposed of, in accordance with the provisions of the Convention. This must
be done within 30 days, from the time the State of export has been informed, about the
illegal traffic, unless the States concerned agree otherwise.
It is very important that each party, shall introduce appropriate national or domestic
legislation to prevent and punish illegal traffic, but there is an obligation of co operation
of the Parties in this regard. Parties are to cooperate with each other to improve and
achieve environmentally sound management of hazardous and other wastes101. They are
to:


101
Make information available upon request, to promote environmentally sound
management of hazardous and other wastes including harmonisation of technical
standards and practices for adequate management of hazardous and other wastes.
Co operate in monitoring effects of management of hazardous wastes on human
health and the environment.
Article 10.
41

Co operate in the development and implementation, subject to national laws
regulations and policies:
- of new, environmentally sound, low waste technologies
- improvement of existing technologies, to eliminate as far as practicable,
generation of hazardous wastes and other wastes, to achieve more
effective and efficient methods of ensuring their management in an
environmentally sound manner, including the study of economic, social
and environmental effects of the adoption of such new or impoved
technologies.
 Co-operate in activities, subject to national laws, regulations and policies, in the
transfer of technology and management systems related to environmentally sound
management of hazardous and other wastes.
 Co-operate also in developing the technical capacity among Parties, especially
those that may need and request technical assistance in this field.
 Co-operate in developing appropriate technical guidelines and/or codes of
practice.
When it comes to their knowledge, the Parties shall ensure that, in case of an accident
occurring during the transboundary movement and disposal of hazardous or other wastes
likely to present risks to human health and the environment in other States, that these
States are immediately informed102.
The parties, consistent with national law and regulations, shall transmit, through the
Secretariat, to the Conference of the Parties103, before the end of each calendar year, a
report on the previous calendar year, containing the following information:
Competent authorities and focal points that have been designated by them pursuant to the
obligations under the Convention104:

Information regarding transboundary movements of hazardous wastes or other wastes
in which they have been involved, including;
-
The amount of hazardous wastes and other wastes exported, their
category, characteristics, destination, any transit country and disposal
method
as
stated
on
the
response
to
notification;
102
Article 13.
Established under Article 15.
104
Article 5.
103
42






-
The amount of hazardous wastes and other wastes imported, their
category,
characteristics,
origin,
and
disposal
methods;
-
Disposal which did not proceed as intended;
-
Efforts to achieve a reduction of the amount of hazardous wastes or
other wastes subject to transboundary movement;
Information on available qualified statistics, which have been compiled by them on
the effects on human health and the environment of the generation, transportation and
disposal of hazardous waste or other wastes;
Information concerning bilateral, multilateral and regional agreements and
arrangements entered into under of this Convention105.
Information on accidents, occurring during the transboundary movement and disposal
of hazardous wastes and other wastes and on the measures undertaken to deal with
them;
Information on disposal options, operated within the area of their national jurisdition;
Information on measures undertaken for development of technologies, for the
reduction and/or elimination of production of hazardous wastes and other wastes;
Such other matters as the Conference of the Parties shall deem relevant.
The Parties, consistent with national laws and regulations, shall ensure that copies of each
notification concerning any given transboundary movement of hazardous wastes or other
wastes, and the response to it, are sent to the Secretariat when a Party considers that its
environment may be affected by that transboundary movement has requested that this
should be done.
2.24
The United Nations Framework Convention on Climate Change
(UNFCCC)
The ultimate objective of this Convention and any related legal instruments to be adopted
by the Conference of the parties is:
105
Pursuant to Article 11.
43
"To achieve in accordance with the relevant provisions of the Convention stabilization of
Greenhouse Gas Conventrations in the atmosphere at a level that would prevent
dangerous athropogenic interference with the climate system".
A qualification clause follows, as to how this objective must be achieved:
"Within a time frame sufficient to allow ecosystems to adopt naturally to climate change
to ensure that food production is not threatened and to enable economic development to
proceed in a sustainable manner".
The objective of the convention therefore is the stabilisation of greenhouse gas
concentrations and not emissions, which are human induced and which interfere with the
Climate System. This is to say that whilst the objective of the Convention is the
prevention of dangerous anthropogenic interference with the climate system, the means to
be used to arrive at this objective is the achievement of appropriate levels of greenhouse
gas concentrations in the atmosphere.
The Commitments106 under the Convention are as follows:


Develop, Update, Publish, make available to the Conference of the Parties, through
the Secretariat, national inventories of anthropogenic emissions by sources and
removals by sinks of greenhouse gases not controlled by the Montreal Protocol.
Comparable methodologies to be used, must be agreed upon by the Conference of the
Parties".
Formulate, implement, publish and regularly update national (and where appropriate
regional programmes) containing measures to mitigate climate change by addressing
anthropognic emissions by sources and removals by sinks of all greenhouse gases not
controlled by the Montreal Protocol and measures to facilitate adequate adaptation to
climate change107 .
These are the two major commitments, which States parties to the Convention, have and
they apply to all parties. Such inventory should include also the removal of these
greenhouse gases (GHGs) by sinks. The second commitment is an obligation on the
parties to the convention, to create plans to address GHG emissions. The meaning of the
word "address" is "to direct one's attention to" or "to take care of". Strictly speaking it
does not mean therefore that there is an obligation to reduce GHG emissions but to keep
them within limits.
106
107
Art 4
Ibid Art (1)(b)
44
This is the key commitment to the whole convention and ensures that all Parties will be
committed to take actions on GHG emissions and sinks108. It also obliges Parties to
publish their programme of measures, to facilitate adequate adaptation to climate change.
The Article on Communication of Information Related to Implementation109, qualifies
these two commitments110 stating that the national inventory of anthropogenic emissions
by sources and removal by sinks of GHGs not controlled by the Montreal Protocol, must
be carried out by each state to the extent its capacities permit, using comparable
methodologies to be promoted and agreed upon by the Conference of the Parties.
Parties are also obliged to promote and co-operate in exchange of information relating to
climate change111. Parties are to communicate to the Conference of the Parties,
information related to implementation112. Developed country parties listed in Annex I113
have more specific obligations, besides the general ones, above-mentioned.
These are:


Adoption of policies and corresponding measures on the mitigation of climate change
by limiting their anthropogenic emissions of greenhouse gases and protecting and
enhancing greenhouse gas sings and reservoirs. This will demonstrate that developed
countries are taking the lead in modifying longer-term trends in anthropogenic
emissions, consistent with the objective of the Convention.
Recognition by Annex I parties that the return by the end of the present decade to
earlier levels of anthropogenic carbon dioxide emissions and other GHGs not
controlled by the Montreal Protocol, would contribute to such modification.
These obligations shall be carried out "taking into account the differences in these Parties
starting points and approaches, economic structures and resource bases, the need to
maintain strong and sustainable economic growth, available echnologies and other
individual circumstances, as well as the need for equitable and appropriate contributions
by each of these Parties to the global effort regarding that objective".
The parties may implement such policies and measures jointly with other Parties and may
assist others in contribution to the objective of the Convention. Annex I parties shall
communicate within six months of the entry into force, of the Convention and
periodically thereafter on the implementation of their obligations with the aim of
108
Article 4(1)(b).
Article 12(1)(a).
110
Article 4 (1)(a) and (b).
111
Art 12(1)(h)
112
(Ibid) Art (1)(j)
113
Annex I parties are those parties members of the Organisation for Economic Co-Operation and
Development (OECD) and States with Economies in Transition.
109
45
returning individually or jointly to their 1990 levels of these anthropogenic emissions of
carbon dioxide and other greenhouse gases not controlled by the Montreal Protocol114.
Annex II parties115 have further obligations under the Convention to provide financial
resources and technology transfer to assist developing country parties to meet their
commitments under the Convention.
At this point in time, Malta has only the general obligations. It will however, have to
adopt the obligations of Annex I parties, if it becomes an OECD member.
The Conference of the Parties is to examine the obligations of the Parties, and is to
consider all obligations and tackle the commitments by developing countries in the future.
It will also allow the examination of the obligations of the Implementation Committee
and Reporting, with a view to ensure an effective monitoring and review process for all
Parties.
The Conference of the Parties (COP)116 is to promote the pooling of information and
experience, on measures adopted to implement the Convention. This is likely to develop
into a central function for the COP, supported by the Implementation Committee, in
advising and recommending actions to Parties drawing on the experience of others.
The COP, is to promote the development of methodologies for measuring emissions and
assess the effectiveness of the measures the Parties take, to meet their commitments. This
will be a key function for the review process, and the main area where the
Implementation Committee supports the COP117. The COP therefore is responsible for
reports on the implementation of the Convention and particularly for their publication as
the outcome of the review process. The combination of peer pressure in the COP and
publication of accounts of their actions, will encourage all Parties to live up to their
obligations.
The COP is empowered to recommend any actions to Parties which are shown to be
falling down on their obligations. This is an important function for the future, as the
review process is taken forward.
Subsidiary Body for Implementation.
The Subsidiary Body for implementation is to assist the COP, in the assessment and
review of the effective implementation of the Convention. It is open to participation by
all parties and comprises government representatives, who are experts on matters related
114
Ibid Art. 12(2)(b)
These are OECD member States.
116
Article 7(2)(a).
117
Ibid
115
46
to climate change. The body is to carry out the first level of review of reports118. It will
therefore assist policy review by the Conference of the Parties.
One of the key elements of the Convention, namely the obligation to provide critical
elements of information to other Parties. It contains differentiated reporting
requirements119.
It necessitates enhanced reporting requirements for Parties listed in Annex I, namely: a
detailed description of measures to implement these commitments120 and a specific
estimate of the effects that such measures will have on its net greenhouse gas emissions
by the end of the decade121. The Subsidiary Body for Implementation (SBI) calls for
reporting by Parties listed in Annex II, of the measures, they have taken to implement
their commitments, related to financial assistance and technology co- operation122.
The SBI also allows developing country Parties, to use the reporting requirement, to
propose projects for funding along with, if possible, a description of incremental costs
and expected benefits123. It provides for differentiation among categories of Parties, with
respect to the timing of submission of reports124 and entrusts the secretariat with
communication of information to the COP and the other subsidiary bodies concerned125.
The SBI permits joint reporting, but makes it clear that any such reporting is subject to
notification and to any guidelines adopted by the COP and must include information on
the fulfilment by each party of its individual obligations under the Convention126. The
SBI is to ensure that reports will be made public at the same time as they are submitted to
other Parties. In that way, non-governmental organisations will have access to the reports
and will be able to participate meaningfully in the Convention's review process127.
2.25 The UN Convention on Biological Diversity.
The Convention on Biological Diversity (CBD) entered into force on 29 December 1993.
118
As prepared under Article 12.
Article 12.
120
Under Article 4(2)(a)(b).
121
Ibid para 2.
122
Ibid para 3.
123
Ibid ara 4.
124
Ibid para 5.
125
Ibid Para 6.
126
Ibid Para 8.
127
Ibid para 9.
119
47
Biological Diversity (or Biodiversity) refers to all species of plants, animals and microorganisms and the ecosystems they form part of. It therefore includes both wild and
domesticated (cultivated) species. Unlike past episodes of extinction in the Earth’s
history which have been attributed to natural causes, today’s loss of species is directly and
indirectly attributable to human activities. These lead to habitat loss and fragmentation,
over-exploitation of living resources, pollution and other factors. Threats to genetic
diversity within species also exist. Genetic Diversity in agriculture is critical to
maintaining high yields in response to pests, diseases and changing environmental
conditions.
The Convention on Biological Diversity is not just another convention to add on the a
growing list of legal instruments which strive to safeguard wild species and their
environment. It is not a regional convention e.g. the Convention on the Conservation of
European Wildlife and Natural Habitats (Berne) and the EC Habitats Directives which are
European instruments. CBD is not concerned with a category of living organisms only
e.g. the Convention on International trade in Endangered Species of Wild Fauna and
Flora (CITES). CBD is the first international agreement committing States to
comprehensive protection of the Earth’s biological heritage. It is a framework agreement,
leaving it up to individual countries, to determine how most of its provisions are to be
implemented.
The Convention on Biological Diversity has three overall goals:

The conservation of biological diversity

The sustainable use of its components and

The fair and equitable distribution of benefits derived from genetic resources128
The goals of the convention are covered in 42 legally-binding articles spanning a broad
range of areas such as measures for conservation and sustainable use of biological
diversity, financing arrangements, access to genetic resources, transfer of technologies
derived from these resources and biosafety related to genetically modified organisms.
This Convention is a landmark in the environment and diversity field, as it takes for the
first time a comprehensive rather than a sectoral approach to conservation of the Earth’s
bio diversity and sustainable use of biological resources.
The Convention however, goes beyond the conservation of biodiversity per se and the
sustainable use of biological resources, to encompass such issues as access to genetic
resources, sharing of benefits from the use of genetic material and access to technology
including bio technology. Moreover this Convention is a framework agreement, leaving
it up to individual countries to determine how most of its provisions are to be
implemented. In turn, its provisions are mostly expressed as overall goals and polices,
128
Defined as the diverse gene pool of life on earth.
48
rather than as hard and precise obligations. It does not tend to set targets. Instead, the
emphasis in the CBD is to place the main decision making at the national level. In fact it
is the first international agreement committing governments to comprehensive protection
of the Earth’s biological heritage.
The basic principle underlying the Convention on Biological Diversity is the sovereign
right of States, to exploit their resources pursuant to their environmental policies and to
ensure that the activities within their jurisdiction or control, do not cause damage the
environment of other States or areas beyond the limits of national jurisdiction129.
The jurisdictional scope in relation to the Contracting parties is limited, to the areas
within national jurisdiction in the case of the components of biological diversity and in
the case of processes and activities extended beyond the limit of jurisdiction if such
processes and activities are carried out under the contracting party’s jurisdiction or
control. This would therefore include aircraft and ships flying the contracting parties flag
and even commercial companies governed by the national law of contracting parties
conducting business beyond national boundaries.
The Major obligations of contracting parties are:

The duty to Co-operate directly or through intergovernmental organisations, for the
conservation and sustainable use of biodiversity in areas beyond national jurisdiction
or in cases of mutual interests.
This seems to imply that contracting parties are obliged to co-operate only in relation
to the cases above-mentioned. The contracting parties, obligation to carry out such a
duty, is qualified by the terms, “as far as possible” and “as appropriate”.


Preparation of a National Strategy and Programme on to implement the obligations of
the Convention.
The integration of conservation and sustainable use of Biological Diversity into the
relevant sectoral and cross-sectoral plans, programmes or policies.
Even these basic obligations are weak under the convention because they are qualified
by the terms, ‘in accordance with (the contracting parties) its particular conditions
and capabilities’. This serves to encourage developing States to adhere to the
obligations of the Convention, irrespective of their technical, scientific and financial
limitations.
129
This is a replica of Principle 21 of the Stockholm Declaration.
49






The identification of the components of biodiversity, in order to conserve it and
ensure its sustainable use. This has to be done in accordance with the categories
listed in Annex I.
The monitoring of Biodiversity by means of a thorough and continuous exercise
concerning the components of local Biodiversity.
The identification of processes and categories of activities, likely to have significant
adverse impacts on the conservation and sustainable use of biological diversity.
Monitoring their effects through sampling and other techniques.
The maintenance and organisation of a data base derived from the identification and
monitoring of activities under the obligations above-mentioned.
The Convention lays down, a series of obligations, which are to be carried out by
contracting parties, ‘as far as possible’ and ‘as appropriate’, with respect to in situ
conservation. These are:
-
Subject to its national legislation, each Party is to respect, preserve and maintain
knowledge, innovations and practices of indigenous and local communities
embodying traditional lifestyles, relevant for the conservation and sustainable use
of biological diversity and promote their wider application with the approval and
involvement of the holders of such knowledge, innovations and practices and
encourage the equitable sharing of the benefits, arising from the utilisation of such
knowledge, innovations and practices.
-
Parties are to develop or maintain necessary legislation and/or other regulatory
provisions for the protection of threatened species and populations.
The Convention lays down also, obligations upon the contracting parties, with respect
to ex-situ Conservation. These obligations are to be carried out ’as far as possible’
and ‘as appropriate’ and ‘predominantly for the purpose of complementing in-situ
measures’. These are:
-
The adoption of measure for the ex-situ conservation of components of
biodiversity.
-
The establishment and maintenance of facilities for such ex-situ
conservation.
-
Adoption of measures for recovery, rehabilitation, reintroduction of
threatened species in their natural habitats.
50





-
Regulation and management of biological resources from natural
habitats for ex-situ conservation.
-
Co-operation for financial and other support for ex-situ conservation
and its maintenance.
To safeguard the sustainable use of biodiversity, Contracting Parties shall integrate
the consideration of conservation and sustainable use of biological resources into
national decision making and minimise or avoid adverse impacts or biodiversity.
They are to protect and encourage traditional practices compatible with the
sustainable use of the components of biodiversity, support remedial actions in
degraded areas as well as encourage cooperation between the government authorities
and the private sector. These obligations are always subject to the qualifying phrase,
‘as far as possible and as appropriate’.
Promotion of awareness campaign of what Biological Diversity is, in public and
private sectors, amongst adults and children.
Promotion of awareness, research, training and capacity building in the field of
Biological Diversity.
Provision of financial support and incentives to implement the Convention on a
national level.
In order to carry out impact assessments and minimise adverse impacts, contracting
parties, shall ‘as far as possible and as appropriate’ introduce environment impact
assessments of projects, ‘likely to have significant adverse effects on biological
diversity’.
This obligation is an example of the precautionary approach which the Convention takes
in its measures to safeguard biodiversity.

Promotion on the basis of reciprocity, exchange of information notification and
consultation, when a project is to be carried out, within national jurisdiction. In cases
of grave or imminent danger or damage, notification to States potentially at risk, must
be immediate and remedial and preventive measures must be taken. Contracting
parties therefore, in the light of the above, are to promote national arrangements for
emergency responses to activities or events.
Issues of liability and redress, including restoration and compensation for damage to
biodiversity, shall be examined by the Conference of the Parties, except where such
liability is purely an internal matter.
51
The duty to inform is also included under the rights of the contacting Parties regarding
access to Genetic resources.
It is the national government of the contracting parties, which has the right to determine
access to genetic resources, subject to national legislation.
To balance the above affirmation, contracting parties are, to ‘endeavour’ to create
conditions to facilitate access to genetic resources for environmentally sound uses, by
other contracting parties. Where access is granted, it shall be:

Upon mutually agreed terms

subject to prior informed consent of the contracting party providing such resource130.
On the otherhand contracting parties ‘shall endeavour’ to develop and carry out scientific
research, based on genetic resources, provided by other contracting parties with the
latter’s full participation.
It shall be the duty of a contracting party, utilising the genetic resources provided by
another contracting party, to take legislative, administrative or policy measures, "as
appropriate", with the aim of sharing, in a fair and equitable way, the results of research
and development and the benefits arising from the Contracting Party, providing such
resources. Such sharing, shall occur through the financial mechanism, established under
the Convention and upon mutually agreed terms.
Contracting Parties shall facilitate exchange of information, relevant to the conservation
and sustainable use of biological diversity. Also, contracting parties shall promote
technical and scientific co-operation, through the appropriate international and national
institutions. Contracting parties may promote joint research programmes and joint
ventures for the development of technologies relevant to the objectives of this
Convention.
Institutions established under the Convention are the Conference of the Parties, the
Secretariat, the Subsidiary body on Scientific Technical and Technological Advice.
It shall be duty of each contracting party to report to the Conference of Parties on the
measures it has taken to implement the provisions of the Convention.
130
Unless agreed otherwise.
52
2.26
United Nations Convention to Combat Desertification.
The objectives of the Convention are131:


To combat desertification;


Aim to achieve sustainable development in affected areas;

Stresses importance of long-term integrated strategies.
To mitigate effect of drought through action at all levels, supported by international
co-operation and partnership arrangements;
Gives priority to Africa where the problem has most serious effects and to take urgent
action in Africa even before Convention comes into force;
In order to achieve its objectives and to ensure adequate implementation, the Convention
applies four principles:




Parties are bound to ensure the participation of populations and local communities in
the design and implementation of programmes to combat desertification.
Improvement for the co-operation and co-ordination at sub-regional, regional and
international levels on the basis of a spirit of solidarity and partnership.
An extension of the concept of partnership to relationships within the affected states.
Importance of ensuring participation of local communities.
Stresses the consideration of the special needs of affected developing countries.
The general obligations under the Convention are:






Adoption of an integrated approach in addressing desertification and drought;
Attention is given to the situation in affected developing country parties, in particular
regarding international trade, marketing arrangements and debts;
Integration of strategies in poverty eradication and efforts to combat desertification,
and the mitigation of the effects of drought;
Promotion of co-operation among affected country parties;
Strengthening of sub-regional, regional and international co-operation;
Co-operation with relevant intergovernmental organisations.
There are also special obligations, which are addressed to affected states and developing
country parties.
131
Article 2.
53

Obligations of affected country parties
Priority is given to combat desertification and thus mitigate the effects of drought by
allocating adequate resources and establishing strategies. Special attention is given to the
socio-economic factors that lead to desertification. Awareness is promoted and facilitated
by the strengthened and new laws enacted. Long-term policies are established.

Obligations of developing country parties
Activities to support the efforts of affected developing country parties to deal with
desertification and drought are carried out. Substantial financial resources and other
forms of support are given, so as to assist in the development and implementation of the
country's own long-term plans and strategies. Mobilisation of funding from the private
sector and NGOs is encouraged.
The Conference of the Parties (COP) is the supreme body of the Convention, which sees
to the effective implementation of the Convention and to the facilitation exchange of
information between parties.
The Permanent Secretariat supports COP and other institutions. The Committee on
Science and Technology provides information relating to scope of the Convention. This
Committee is open to all parties is made up by a rotating panel of experts.
There are no other specific reporting obligations under the Convention.
Upon ratification, acceptance and approval, a state party to the Convention is legally
bound to abide by its obligations. The Convention's approach is for economic factors
contributing to desertification and mitigate effects of drought. The Convention also
proposes an integrated approach towards development policies.
Country parties are expected to adopt national legislation for the effective implementation
of the Convention. In the light of the provisions of the Convention such legislation may
provide for:









the formation of strategies and action plans and programmes;
the establishment of national co-ordinating bodies;
the regulation of land use activities;
the integration of programmes to combat desertification into national development
policies;
public participation in decision-making and implementation;
public education and awareness;
the use of appropriate technologies in land husbandry;
providing for regional co-operation; and
facilitating capacity building.
54
2.27
The Protocol Concerning Protected Areas and Biological Diversity in the
Mediterranean.
The Protocol concerning Protected Areas and Biological Diversity in the Mediterranean
hereinafter referred to as the new Protocol is to replace the Protocol Concerning
Mediterranean Specially Protected Areas, hereinafter referred to as the existing Protocol.
The new protocol has introduced changes to the Preamble of the existing protocol to
include within the scope of the new Protocol the concept of conservation of biological
Diversity. This is a regional response to the adoption of the UN Convention on
Biological Diversity at UNCED132.
Art 3 of the new Protocol declares that Party States "shall take the necessary measures",
to:





Protect, preserve and manage in a sustainable and environmentally sound way
areas133, and threatened and endangered species of flora and fauna;
Co-operate in the conservation and sustainable use of biological diversity in the area
where this Protocol applies;
Identify and compile inventories of the components of biological diversity;
Adopt strategies, plans and programmes for the conservation of biological diversity
and integrate them in policy instruments;
Monitor the components of biological diversity and identify processes and activities
likely to have a "significant adverse impact" on them.
Article 5 of the new Protocol regulates the establishment of Specially Protected Areas
(SPAs). The Protocol regulates the establishment of SPAs where these may affect the
sovereignty or jurisdiction of one or more States. Article 6 of the new Protocol relates to
Protection Measures, which must be taken by State Parties with respect to SPA.
These protection measures vis a vis Specially Protected Areas include in particular:


The prohibition of dumping or discharging of wastes134;
The regulation of the passage of ships and any stopping or anchoring135;
132
The United Nations Conference on Environment and Development also known as the Earth Summit.
notably by establishing Specially Protected Areas in case of areas of particular natural or cultural value.
134
There is nothing controversial about this. It is deemed that dumping and discharging of harmful
substances at sea is a breach of customary international law, apart from being codified in a number of
treaties and protocols. It cannot however be used as a reason to impede innocent passage unless pollution is
wilful and serious (Art 19(2)(h) UN Convention on the Law of the Sea (UNCLOS).
133
55




The regulation of the introduction of non-indigenous species, genetically modified
organisms (GMOs), and the introduction or reintroduction of species which are or
have been present in the SPA136;
The regulation of exploration, modification and exploitation of the subsoil of the land
part, the seabed and its subsoil137;
The regulation of any scientific research activities;
Regulation or prohibition of fishing, hunting, harvesting of plants and taking of
animals, trade in species of flora and fauna or their derivatives which "originate in the
SPA".
The new Protocol provides for an entirely new regime namely the establishment of the list
of Specially Protected Areas of Mediterranean Importance (SPAMI). Parties are obliged
to draw a list of these SPAMI138.
SPAMI may be established in


Marine and coastal zones subject to the sovereignty or jurisdiction of the Parties139
Zones partly or wholly on the high seas140.
SPAMI may be proposed for inclusion by:



The Party concerned, in a zone already delimited over which it exercises sovereignty
and jurisdiction.
Two or more neighbouring Parties concerned, if the area is situated partly or wholly,
on the high seas.
The neighbouring Parties concerned, in areas where the limits of sovereignty or
jurisdiction have not yet been defined.
Under the new Protocol, Parties would have to provide information to the Regional
Activity Centre for Specially Protected Areas (RACSPA) relating to the area's location,
135
Permitted under Art 22 of UNCLOS but subject to contestation if adopted unilaterally.
This would have an impact on fish farming projects, since fish are highly migratory species.
137
May affect projects re exploitation of the continental shelf and may also conflict with the freedoms of the
high seas.
138
To include areas which are important to conserve Mediterranean biodiversity components and which
contain ecosystems specific to the Mediterranean area or constitute habitats for endangered species or are of
special interest for their scientific, aesthetic, cultural and educational level.
139
Art 9(1) (a) basically referring to internal waters and the territorial sea and possibly the EEZ vide infra
21.
140
Art 9 (1) (b) includes the Contiguous Zone (part of the High Seas Regime) but not the EEZ which has a
sui generis regime. The fact that under the EEZ the coastal State has sovereign rights to take measures
relating to the protection of the marine environment seems to place it in the first category vide Supra at 19.
Although strictly speaking the coastal states have "sovereign rights" and not "sovereignty" as required under
Art 9 (1) (a). similarly with respect to our 25 nautical mile exclusive fishing zone.
136
56
ecological, physical characteristics, legal status, management plans and implementation
means and a statement justifying its Mediterranean importance.
It is an obligation under this new Protocol to inform the general public re:



The establishment of Specially Protected Areas.
The designation of protected species and their habitats and any applicable regulations
to the above.
The interest and value of SPAs and species therein and of the scientific knowledge
that may be gained.
State parties are also to provide for public participation in this context.
Article 20 of the new Protocol calls for co-operation, development and exchange of
scientific technical and management research, amongst State Parties and with competent
international organizations, as well as mutual cooperation and mutual assistance
programmes to ensure exchange of information relevant to the obligations existing in the
new Protocol141. Parties are obliged to submit reports on:



The status and state of areas included in the Specially Protected Areas of
Mediterranean Importance list.
Changes in the delimitation/legal status of the Specially Protected Areas of
Mediterranean Importance and protected species.
Possible exemptions permitted under the Protocol.
2.28
The Protocol on the Prevention of Pollution of the Mediterranean Sea by
Transboundary Movements of Hazardous Wastes and their Disposal.
This Protocol has not yet entered into force, because not enough States have it, to date.
From an environmental point of view, it is indeed a remarkable achievement and is a
regional response which supplements and builds upon the Basle Convention for the
Transboundary Movement of Hazardous Wastes and their Disposal.
The Parties general obligations under the, " The Hazardous Wastes Protocol", are:
141
Art 21, Art 22
57




To take all appropriate measures to prevent, abate and eliminate pollution of the
Protocol area, which can be caused by transboundary movements and disposal of
hazardous wastes.
To take all appropriate measures to reduce to a minimum and where possible
eliminate the generation of hazardous wastes.
To take all appropriate measures to reduce to a minimum the transboundary
movement of hazardous wastes, and if possible to eliminate such movement in the
Mediterranean. Parties have the right to ban the import of hazardous wastes and other
parties shall respect this sovereign decision and not permit the export of hazardous
wastes to States which have prohibited their import.
All Parties142 shall take appropriate legal, administrative and other measures within
the area under their jurisdiction, to prohibit the export and transit of hazardous wastes
to developing countries.
The 1976 The Protocol for the Protection of Mediterranean Sea Against Pollution from
Land-Based Sources.
Conclusion
The status of a sovereign State as a subject of international law is expressed in terms of
its rights and obligations under international law. To be exercised and observed, these
rights and obligations must often be translated into municipal law. This transition
process from one medium to the other is, to say the least, an arduous task and there are
many instances where problems emerge leading to difficulties between the two systems.
The incorporation of international law into the internal legal systems of a State is a matter
of municipal law, in the sense that it is up to the State concerned, to decide how to
embody it as part of the law land.
Both are two distinct legal systems each operating in its own field, existing within
different juridical systems and each order, is supreme, in its own sphere. If a State within
its domestic sphere, does not act in accordance with its obligations as laid down by
international law, the domestic position is unaffected and not overruled by the contrary
142
Art 6(4).
58
rule of international law, but if the State breaches an international rule, it must be liable to
provide a remedy under international law143. Sometimes international legal instruments
lay down the method required, to implement at a national level, the obligations laid down
therein, but in the majority of cases the choice is left to the State parties' discretion. In
some treaties144 States have agreed to establish criminal penalties in case of transgression,
but other options include civil remedies and administrative or fiscal measures.
The effectiveness of implementation measures laid down in Conventions depends on the
Parties which negotiated them. For example, Italy's breaching of CITES' obligations, led
to the country being banned from trading, in species covered by the Convention, with
other parties, for a whole year. Other Conventions however lack enforcement measures
altogether. Some Conventions provide for sanctions if State parties breach obligations
laid down in the Convention. The effectiveness of these sanctions again depends on how
far the negotiations had agreed to go.
In the end, the fulfilment of international obligations depends upon their implementation
at a national level. There exists no executive power to enforce international obligations
under international law, but Conventions and the institutions they establish, usually play a
supervisory role exerting pressure upon States to comply with their obligations at a
national level. States are in fact, as we have seen, often obliged to report on their
implementation measures level, through standard questionnaires or to submit data and
information as requested by the Conference of the Parties. Implementation at a national
level is even more critical with respect to international obligations arising from custom,
because in such cases there is no supervisory body which can monitor compliance. In this
respect wider powers should be given to UNEP and to the United Nations Commission
for Sustainable Development. Regional arrangements like the UNEP Regional Seas
Programmes can carry out an even more effective supervisory role. The issue of global
environmental governance, is at this point in time being debated and will definitely be readdressed at the World Summit on sustainable Development in Johannesburg, South
Africa, next year.
Considerations of power rather than of law, determine compliance and enforcement under
international law and a State can avoid implementing its international obligations on a
national level and get away with it. This is the exception rather than the rule however and
often, voluntary compliance prevents the problem caused by incapacity, to enforce,
especially as international obligations are usually far from stringent and because
altogether, in the end, it is in the very interest of States to comply with international
obligations they chose to adhere to. The application of international obligations on a
143
The 1969 Vienna Convention on the Law of Treaties and the Draft Declaration on rights and Duties of
States oppose the use of Municipal Law procedures as a defence for the transgression of international
obligations by a State. Moreover there are judicial decisions to this effect, vide the Alabama Claims
Arbitration, Moore's International Arbitration Awards, 485
144
Example, the 1989 Basel Convention for the Control of Transboundary Movements of Hazardous
Wastes and their Disposal, Art 4(3) 4(4); the 1973. International Convention for the Prevention of
Pollution of Oil by Ships (OILPOL). Art(2) 4(4) and the 1973 Convention on International Trade in
Endangered Species (CITES). Art 8(1).
59
national level, is the classic example as to how international law may annex to its own
sphere, some of the matters which at present lie within the reserved domain of States.
Unfortunately, in Malta reporting on a national level, is not a common, well established
methodology. It is more of an administrative, rather than a legal obligation. For instance,
government departments have an administrative obligation to provide the Central Office
of Statistics with any data requested. Similarly, licensing very often includes reporting as
an administrative obligation.
The Hunting Regulations145, however impose a legal obligation upon hunters and trappers
to submit a report on the number of birds they have hunted or trapped in the previous
hunting season. This report, called the 'carnet de chasse', is mandatory for the renewal of
the hunting/trapping licence for the following season. The 'carnet de chasse' therefore,
not only serves as a tool to ensure compliance with the regulations, but also provides
much required data, on birds migrating to the Maltese Islands.
Development Planning Law in Malta, also imposes a legal obligation on the developer to
report on the execution of works according to the development permit and such reporting,
is verified by the building inspectorate. The legal requirement to impose on the developer
an Environment Impact Assessment, is also a form of reporting which adopts a system of
checks and balances to ensure that a project is not executed if it is not environmental
sustainable, or at least if it is carried out, preventive measures are taken to ensure
sustainability.
On an international level Malta has an obligation to report as we shall see, under
practically all the international legal instruments relating to environment protection, to
which it is a party. In most cases an annual report is obligatory, but reporting varies from
one convention to another. The more stringent the obligations of the Convention, the
more detailed the reporting.
For instance under the Montreal Protocol, the parties have to submit an annual report,
listing all national imports and exports of ozone-depleting substances, as well as a
biannual progress report on the status of implementation on a national level. As a party to
the Convention on Long Range Transboundary Air Pollution, Malta is also subject to
mandatory reporting, but this Convention splits reporting per sector, whilst under its
EMEP Protocol, Malta is to submit reports on its air emissions.
Annual reports are also obligatory for Malta as a party to the Convention on International
Trade in Endangered Species of Wild Flora and Fauna (CITES). Such reports must
include details on listed species which were seized, imported into and exported from
Malta. Detailed reporting is also requested under the Berne Convention on the
Conservation of European Wildlife and Natural Habitats. The Berne Convention in fact
has a reporting mechanism which is particular to itself. The Berne Convention allows for
temporary derogations with respect to the implementation of its obligations. These
145
Legal Notice 146/93 as amended by 216/97.
60
derogations referred to as 'exceptions'146 under the Convention, are only allowed if the
party which has made the exception, submits detailed reports to ensure that it is satisfying
the conditions, against which the exception was granted. The introduction of the
obligation to present the 'carnet de chasse' referred to earlier, is in fact the methodology
adopted by Malta to satisfy its reporting obligations under the Berne Convention as a
party, which has made 'exceptions' to the provisions of the Convention.
Malta has also reporting obligations under the United Nations Framework Convention on
Climate Change (UNFCCC) regarding national inventories of greenhouse gas emissions,
as well as a national report on the adaptation measures it is going to adopt in view of the
impacts of climate change. To date, its reporting obligations however are less strict than
those of other parties to the UNFCCC, which are OECD members or states with
economies in transition147. This distinction in reporting duties between developing and
developed country parties is also a particular characteristic of international environmental
legal instruments, being a measure to implement the common but differentiated
responsibility principle, an important principle under international environmental law.
Malta's reporting obligations under the Basel Convention on the Transboundary
Movement of Hazardous Wastes and their Disposal require it to submit information of
transboundary movements of wastes affected to and from Malta, in other words to ensure
that the provisions of the Convention are being implemented. Similarly Malta's reporting
obligations under the Protocols to Barcelona Convention on the Protection of the
Mediterranean Sea Against Pollution148 the Convention to Combat Desertification, and
the Ramsar Convention on the Protection of Wetlands. Ensure compliance with the
delegations under these Conventions.
To recapitulate therefore, it has certainly been Malta's experience that reporting, whether
in the form of progress reports, annual reports or monitoring reporting mechanisms,
serves to ensure compliance with the obligations of international legal instruments, an
effective and fundamental requisite when one considers the difficulties encountered in the
enforcement of international law. Secondly reporting leads to better co-operation because
of the exchange of information amongst the parties concerned.
146
These 'exceptions' have nothing to do with 'reservations' which are normally permitted under
international legal instruments upon ratification or accession.
147
These are referred to as Annex I and Annex II parties.
148
These are: Protocol on Specially Protected Areas and Biological Diversity in the Mediterranean, the
Dumping Protocol, the Emergency Protocol, the Land Based Sources Protocol, the Protocol on the
Transboundary Movement of Wastes.
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