The purpose of this paper is to clarify the present state and problems of Japanese measures against the protection and preservation of the marine environment from the perspective of international law and Japanese domestic laws and regulations. The analysis is divided into three sections. Firstly, the relationship between Part XII of UNCLOS and the IMO marine environmental treaties will be... (see full summary)
IThe Relationship between UNCLOS and the IMO Marine Environmental Treaties
Part XII of the United Nations Convention on the Law of the Sea (“UNCLOS”)1 stipulates the adoption and enforcement of domestic laws and regulations for the prevention, reduction and control of pollution of the marine environment, such as pollution from land-based sources, pollution from seabed activities, pollution fromPage382dumping, pollution from vessels and pollution from or through the atmosphere etc.2 However, these articles do not set any absolute standards to prevent marine pollution, but instead adopt an form of international minimum harmonization standard based on an obligation of result.3 Absolute standards to prevent marine pollution can be found in detailed treaties related to the marine environment to be adopted by the International Maritime Organization ( “IMO”).
One of he contented issues regarding the enforcement of laws and regulations against foreign vessels is the interpretation of the “laws and regulations adopted in accordance with this Convention”and the “applicable international rules and standards established through the competent international organization or general diplomatic conference”as mentioned in Part XII of UNCLOS. For example, Article 210 of UNCLOS addresses pollution by dumping, and stipulates that domestic laws and regulations “shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards.”It further requires States to establish goals and regional rules, standards and recommended practices and procedures “especially through competent international organizations or diplomatic conference.”The IMO is generally regarded as a good example of a “competent international organization.”The rules and standards adopted by the IMO are as follows: the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 1972 (“London Convention of 1972” );4 the 1996 Protocol on the London Convention of 1972 with regard to dumping into the sea ( “London Protocol of 1996” );5 the International Convention for the Prevention of Pollution from Ships of 1973 ( “1973 MARPOL” );6 the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships of 1973 (“MARPOL 73/78”)7 and the Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto ( “Protocol of 1997” ).8
IIJapanese Implementation of the IMO Marine Environmental Treaties
Japan is a Contracting Party to many marine environmental treaties adopted by the IMO, including: the London Convention of 1972; the London Protocol of 1996; the MARPOL 73/78; the Protocol of 1997; the International Convention on Oil Pollution Preparedness, Response and Co-operation of 1990 (“OPRC Convention”);9 and the subsequent Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances of 2000 ( “OPRC-HNS Protocol” ).10
AJapanese Measures against Dumping into the Sea from Vessels
The London Convention of 1972, its following Protocol and the London Protocol of 1996 are generally interpreted to be “global rules and standards”to prevent, reduce and control pollution of the marine environment by dumping.11 In order to regulate dumping of wastes or other matter originating from land into the sea, the London Convention of 1972 prohibited dumping of the wastes or other matter listed in Annex I ( “Black List”).12 The Convention further requires States to obtain “a prior special permit”regarding dumping of the wastes or other matter listed in Annex II ( “Gray List” ),13 and “a prior general permit”regarding dumping of any other wastes or other matter.
The London Protocol of 1996 represents a major change of the system to regulate dumping of wastes or other matter originating from land into the sea. The Protocol adopts the “precautionary approach”and the “polluter-pays principle.” 14 In addition, the protocol prohibits dumping in principle, stipulating as follows: “Contracting Parties shall prohibit the dumping of any wastes or other matter with the exception of those listed in Annex I,” 15 and allows the parties to consider granting a permit regarding dumping of only the wastes or other matter listed in Annex I, such as dredged material, Page384 sewage sludge, fish remnants, residue from fish-processing, vessels, platforms and man- made structures at sea, inert and inorganic geological material, and organic material of natural origin.16
The contrast between the London Convention of 1972 and the London Protocol of 1996 is in regards to the regulations of dumping. The London Convention of 1972 (and UNCLOS) does not prohibit dumping but rather subjects it to a system of express prior approval.17 On the other hand, the so-called “negative listing approach”adopted by the London Protocol of 1996 is an example of application of the precautionary approach, and reverses the regulatory approach, from “permitted unless prohibited”to “prohibited unless permitted.” 18 Under the negative listing approach, only listed substances may be permitted to be dumped, while the dumping of all other substances is prohibited.19
In 1970, Japan adopted the Act on the Prevention of Marine Pollution and Maritime Disaster (“Marine Pollution Prevention Act”).20 The primary purpose of the Marine Pollution Prevention Act is to “secure appropriate enforcement of international convention on the prevention of marine pollution and maritime disaster.” 21 Although the Marine Pollution Prevention Act has no explicit provision on its scope of application, the Act applies to any vessel in Japanese internal waters and territorial sea,22 as well as to any Japanese vessel outside these areas. Japan amended the Marine Pollution Prevention Act in 1980 to ratify the London Convention of 1972, and then revised the Act in 2004 and 2007 in order to ratify the London Protocol of 1996. The amendment of the Act in 2004 obliged any person who will dump wastes and other matter into the sea to obtain permission for dumping from the Minister of the Environment, and to obtain a confirmation of actual dumping from the Commandant of the Japanese Coast Guard. As mentioned above, when ratifying the London Protocol of...