MARPOL 73/78 in China
Economic Development
China has been continuously experiencing double digi growth in imports and exports volume in the past seven years since PRC engaging in the World Trade Organization (WTO). According to statistics released by Customs of China government, China’s total import and export volume reached US$2,561.63 billion in 2008, up 17.8 percent year on year, which was 5.7 percentage points lower than the growth of the previous year. Of the total, exports accounted for US$1,428.55 billion, up 17.2 percent year on year, and 8.5 percentage points lower than the growth in the previous year; and imports accounted for US$1,133.08 billion, up 18.5 percent year on year.
Increase in marine traffic and activity
Significant vessel traffic volume increase has been recorded. In 2004 the volume of traffic is 10.4% of the total vessel movements that it is a very clean induction when comparing with only 7.8% in 1994 . Report from United Nations Conference of Trade and Development told us that Chinese ports handled 28.7% which is of containers throughput of the entire liner shipping world that is 485 millions TEU. The handling capacity of coastal oil terminals/jetties has reached 32 billion tons in 2007. The Import volume of crude oil was 16.8 billion tons. With regard of traffic data, 2.6 million vessels were going in and out of China waters in 2007. Eight hundred thousands out of 2.6 millions vessel were tankers for any purposes.
Trend of Marine pollution in China
Historical record shows that 2653 oil leakage issues happened in Coastal area of PRC in 1973-2006 . Critical oil leakage of 50 tons of crude oil or above happened 69 times. Total leakage volume is thirty thousand tons. Average occurrence per year is two times. Average oil leakage volume per accident is 537 tons. In 2005, 253 oil pollution accidents were discovered. Qingdao is the largest crude oil transhipment centre in PRC. Maximum handling capacity per year is 70million tons and on-shore storage capacity is 6 million meter square. Qingdao oil terminal has been handling 39millions tons crude oil per year. As a strategic storage point of oil reserve for PRC, after the completion of 3rd oil jetty project and oil refinery factory with 10 millions tons capacity, Qingdao will become the cluster oil for oil industry. The estimated throughput of oil and sub-products will be high as 60-70 millions tons.
MARPOL 73/78 in China
Development of MARPOL 73/78 in China Since the end of Cultural Revolution and the start of “Open Door Policy”, China has been being more committed to international responsibilities . PRC participated in the 1973 and has signed the UN Law of Sea Convention as well as a number of other treaties regarding environment protection. Since 1984, PRC has engaged in MARPOL 73/78 with adoption of convention itself with Annexes I, II, III and V .
Legal Aspects of China to enforcing MARPOL 73/78
In actions list of implementing MARPOL 73/78. It requests State parties to give full effect to the convention under national law. However, China has taken a different approach which is dualistic implementation . In PRC legislation system hierarchy, there are two layers basically which are Laws or PRC and Administrative Regulation or Rules. Majority of MARPOL 73/78 related rules are put in administrative regulations.
I. Legislations Three major laws on water resources and their protection have been used. The first of these laws was enacted in 1982 and is at the same period the main national law preventing and defending marine oil pollution. Those laws are Marine Environment Protection Law which had been revised in 1999, The Law on Pollution through Solid Wastes in 1995. However, above mentioned legislations are not applicable to sea water. Marine Environment Protection Law contains several general chapters, pollution sources are divided into 5 types. Only Chapter IIX is regulating pollution caused by vessels and vessels related operations for example pollution through tanker accidents .
In administrative rules prospective, there are three rules concerning pollution caused by ships. Each regulation is ministered by a correspondent administrative department.
The Administrative Regulations on Preventing Ships from Polluting Sea Area (ARPSP) The first one is the Administrative Regulations on Preventing Ships from Polluting Sea Area (ARPSP). This law was established as a tool to implement Law of Marine Environment Pollution. The purposes are to prevent ships polluting the sea and safeguarding the ecological environment of the sea, the State Council promulgated the ARPSP on 29 December 1983. The rules applies to all shipowner and other persons, ships with Chinese and foreign nationality on the sea or in seaports under administration. The provision of this rules are very specific, including Chapter III “Documents and devices of antipollution for ships”, Chapter IV ‘ Oil operation of ships and discharge of foul water’ Chapter V ‘Carriage of dangerous cargo’, Chapter VI ‘Other shipping sewages’, Chapter VII ‘Shipping waste’, Chapter VIII ‘Waste dumping by ships’, Chapter IX ‘ Repair and building as we;; as salvage of ships above and under water and project of ship dismantling’ , Chapter X ‘Compensation for damages by ship’s pollution accident’. If any serious marine pollution damage happens, according to article 53, the harbour superintendent has the right to take strict measures to avoid or reduce damage which includes compulsory removal and towage.
The Administrative Regulation of Preventing Pollution from Dismantling and Repair of Ships This regulation is aiming to prevent pollution caused by dismantling of ships. It applies to units and individuals engaged in ship dismantling activities on shore or on water. The regulation itself also includes detailed rules for planning and establishing a shipyard for dismantling, supervision and inspection of ship dismantling activities, items that should be noted in this ship dismantling work and so forth, so as to ensure reduction of the risk of pollution in ship dismantling process to the lowest level.
(iii) The Administrative Regulations on Dumping Wastes at Sea (RDW) RDW is promulgated by the State Council on 6 March 1985 and come into force from 1 April at the same year. According to article 2 of regulation, dumping as the disposal of waters and other substances into sea by using ships, airborne vehicles, platforms and other means of transport; disposing of ships, airborne vehicles, platform and other artificial marine construction into ocean is strictly prohibited.
II. Authorities and Ministries
According to 5 of Law of Marine Environment Protection (LMEP), two administrations have been set up and responsible for executing laws and regulations related to marine pollution which are national marine administrative authority (State Oceanic Administration: SOA) and Maritime Safety Administration(MSA). MSA is responsible for the supervision and administration, investigation and treatment of accidents of ships other than military or fishery ships. Therefore, MSA is an legal instrument to physically prohibiting violation, providing sanctions, take necessary proceedings, inform parties affected, inform IMO, inspect ships and monitor ships and investigate casualties involving pollution and report findings . The legal protection of the marine environment in China
III. Legislations Enforcement Sometimes PRC’s legislations system was commented that a wide gap exists between the ‘law in the books’ and the ‘law in practice’. In the past 10 years, China as a state party in IMO has been trying to solve disputes in by using international convention. In 23 November 2002, a Maltese flag crude oil tanker, known as m/v TASMAN SEA, collided with Chinese ferry –Shun Kai One in Tianjin Dagu eastern sea anchorage. Volume of oil leakage is two hundred thousand tons. SOA and MSA took emergency actions immediately to investigate and assess the accident and damages caused which were actions enforcing MARPOL 73/78’s requirements. After 2 years process, in 30 December 2004 Tianjin Maritime Court held that the shipowner of M/V TASMAN SEA and The London Steam-Ship Owners Mutual Insurance Association Limited which the Protection and Indemnity Club of the shipowner are liable for the damage in light of 1992 the International Convention on Civil Liability for Oil Pollution Damage which is 9.95 millions RMB . In the sense, although Chinese government did not apply MARPOL 73/78directly to this case, the actions being taken by SOA and MSA are having MARPOL 73/78’s guidance.
Reference
1. XinHuaNet, 近年來國際國內發生的重大海上溢油事故, Available at http://xinhuanet.com/ (visited 12March 2009) 2 International Maritime Organization(IMO) (2003). 1INTRODUCTION: MARPOL 73/78. In MARPOL - How to do it 2002 Edition (pp. 1- London: International Maritimr Organization, London
3 International Maritime Organization(IMO) (2003). 1INTRODUCTION: MARPOL 73/78. In MARPOL - How to do it 2002 Edition (pp. 1- London: International Maritime Organization, London
4 International Maritime Organization(IMO), International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL), Available in http://www.imo.org (visited at 12 March 2009) 5 International Maritime Organization(IMO) (2003). 3- Rights and obligations under MARPOL 73/78. In MARPOL - How to do it 2002 Edition (p16). London: International Maritime Organization, London
6 Hai, T. (2 March 2009). Analysis of China's foreign trade in 2008, In China Economic News(8 of 2009). Retrieved March 10, 2009 from http://www.eiahk.com/cenartic_458.html
7 Lloyd’s List, Vital statistics that reveal how future shapes up Marcus Hand , Available at http://www.lloydslist.com (visited 12March 2009) 8 Qingdao News, 中國重視應對海域溢油污染事故的國際合作, Available in http://qingdaonews.com (visited at 12 March 2009)
9 XinHuaNet, 近年來國際國內發生的重大海上溢油事故, Available at http://xinhuanet.com/ (visited 12March 2009)
10 The Convention dates to 10 December 1982. The PRC adopted it on 28 July 1994 and ratified it on 15 May 2006
11 Richer, T. (2006). Prevention and Compensation of Marine Pollution Damage Recent Developments in Europe, China and the US. Comparative Environment Law & Policy Series - Kluwer Law International, 9 pp61-83 .
12 Han, L. X. & Guan, Z. Y. (2006). The Enforcement of International Conventions for the Prevention of Pollution from Ships and Compensation for Pollution Damage in China. Comparative Environment Law & Policy Series - Kluwer Law International, 9 181-191.
13 See MARINE ENVIRONMENT PROTECTION LAW OF THE PEOPLE’S REPUBLIC OF CHINA, available at http://www.lawinfochina.com
14 Guo, P. & Zhao, L. J. (2006). The Legal Protection of The Marine Environment in China: Current Situation and Challenges . Prevention and Compensation of MARINE Pollution Damage Recent Development in Europe, China and the US, 9 285-299.
15 Coinet (31 December 2004). “塔斯曼海”案一审宣判, In China Ocean News. Retrieved March 8, 2009 from People's Republic of China, China Oceanic Information Network Web site: http://www.coi.gov.cn/oceannews/2004/hyb1372/11.htm