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LEGAL INSTRUMENTS AND INSTITUTIONAL ARRANGEMENTS RELATED TO MARINE LITTER IN CHINA - SUMMARY AND ANALYSIS by Linlin Hu*, Binghui Zheng* and Xianfeng Wu** *Marine Litter Focal Point of China **Vice Director, Marine Environment Protection Division ABSTRACT Through collecting and summarizing the data and information on constitutional provisions, framework laws, institutional legislation/cross-cutting legislation related to marine litter in China, a national summary on marine litter related national legal instruments and institutional arrangements is introduced. The comments on these instruments and arrangements from the view of marine litter and the analysis of gaps and needs in the coverage of the marine litter issue by national instruments are subsequently made. 1. LIST OF NATIONAL LAWS, REGULATIONS, AND INSTITUTIONAL LEGISLATION RELATED TO THE MARINE LITTER The laws, regulations, and institutional legislation obviously related to the marine litter in China include: Constitution of the people’s republic of China, Amended for the fourth time on March 14, 2004, Environmental Protection Law of the people’s republic of China, December 26, 1989 Marine Environmental Protection Law, Revised on December 25, 1999 Regulations on the Prevention of Pollution Damage to the Marine Environment by Land-based Pollutants, Effective on August 1, 1990 Regulations on the Administration of Environmental Protection in the Exploration and Development of Offshore Petroleum, December 29, 1983 Regulations on the prevention of Vessel-induced Sea Pollution, December 29, 1983 Regulations on Control over Dumping of Wastes in the Ocean, March 6, 1985 and Proposals on Strengthening the Management of the Plastic Package Wastes along Main Roads, in River Basins and at Tourist Attractions, Approved by the State Council on September 22, 1998. In the Law on Prevention of Environmental Pollution Caused by Solid Waste and Law on Prevention and control of Water pollution, there are clear descriptions both in Article 2 that “This Law is not applicable to the prevention and control of marine pollution, which is provided for by a separate law” and “It does not apply to the prevention of marine environmental pollution caused by solid waste…”, then the two laws are not treated as “obviously related” ones. 2. DETAILED ARTICLES RELATED TO THE MARINE LITTER 2.1 Constitution Provisions In the Constitution of the people’s republic of China, there wrote: 2.2 Framework laws In the Environmental Protection Law of the people’s republic of China, there wrote: in Article7, The competent department of environmental protection administration under the State Council shall conduct unified supervision and management of the environmental protection work throughout the country. The competent department of environmental protection administration of the local people’s governments at or above the county level shall conduct unified supervision and management of the environmental protection work within areas under their jurisdiction. The state administrative department of marine affairs, the harbor superintendency administration, the fisheries administration and fishing harbor superintendency agencies, the environmental protection department of the armed forces and the administrative departments of public security, transportation, railways and civil aviation at various levels shall, in accordance with the provisions of relevant laws, conduct supervision and management of the protection of natural resources. in Article 21 The state Council and the people’s governments at various levels in coastal areas shall provide better protection for the marine environment. The discharge of pollutants and dumping of wastes into the seas, the construction of coastal projects, and the exploration and exploitation of offshore oil must be conducted in compliance with legal provisions so as to guard against the pollution and damage of the marine environment. in Article 46 If a international treaty regarding environmental protection concluded or acceded to by the People’s Republic of China contains provisions differing from those contained in the laws of the People’s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People’s Republic of China has announced reservations. In the Marine Environmental Protection Law, there wrote: in Article 2 This law shall apply to the internal waters, territorial seas and the contiguous zones, exclusive economic zones and continental shelves of the People’s Republic of China and all other sea areas under the jurisdiction of the People’s Republic of China.… This law shall also apply to areas beyond the sea areas under the jurisdiction of the People’s Republic of China that cause pollution to the sea areas under the jurisdiction of the People’s Republic of China. in Article 5 The competent administrative department in charge of environment protection under the State Council, as a department to exercise unified supervision and administration over nation-wide marine environment protection work, shall render guidance, co-ordination and supervision and be responsible for nation-wide environment protection work to prevent and control marine pollution damages caused by land-based pollutants and coastal construction projects. The competent State Oceanic administrative department in charge of marine affairs shall be responsible for the supervision and administration of the marine environment, organize survey, surveillance. supervision, assessment and scientific research of the marine environment and be responsible for nation-wide environment protection work to prevent and control marine pollution damages caused by marine construction projects and dumping of wastes in the sea. The competent State administrative department in charge of maritime affairs shall be responsible for the supervision and administration of marine environment pollution caused by non-military vessels inside the port waters and non-fishery vessels and non-military vessels outside the port waters under their jurisdiction, and be responsible for the investigation and handling of the pollution accidents. In the event of a pollution caused by a foreign vessel navigating, berthing and anchoring and operating in the sea area under the jurisdiction of the People's Republic of China, officers in charge shall board the vessel in question to examine and handle the case. Should a pollution accident caused by vessels result in fishery damages, the competent administrative department in charge of fisheries shall be invited to take part in the investigation and handling of the accident. The competent State administrative department in charge of fisheries shall be responsible for the supervision and administration of marine environment pollution used by non-military vessels inside the fishing port waters and the fishing vessels outside the fishing port waters, and be responsible for the protection of ecological environment in the fishing zones and examine and handle fishery pollution cases beyond the pollution accidents mentioned in the previous clause. The environmental protection department of the Armed Forces shall be responsible for the supervision and administration of marine pollution caused by military vessels and for the investigation and handling of the pollution cases. The functions and responsibilities of the departments invested by the law with power to conduct marine environment supervision and administration of the coastal local People's Governments above the county level shall be determined by the People's Governments of the Provinces, Autonomous Regions and Municipalities directly under the Central Government in accordance with this law and relevant regulations of the State Council. in Article 11 …Those dumping wastes in the sea shall, in accordance with the State regulations, pay dumping fees. in Article 14 The competent State administrative department in charge of marine affairs shall, in accordance with State environmental monitoring and supervisory norms and standards, administer the investigation, monitoring and supervision of nation-wide marine environment, work out specific measures of implementation, organize nation-wide marine environment monitoring and supervision network in conjunction with relevant departments, handle assessment of marine environment quality at regular intervals and release sea cruise supervision dispatches.… Other relevant department shall, in accordance with the division of work of nation-wide marine environment monitoring network, be respectively responsible for the mouths of rivers that empty into the sea and main pollutant discharge outlets. in Article 28 …Mariculture shall determine breeding density in a scientific way, rationally feeding and apply manure and accurately use medicines, so as to prevent pollution to the marine environment. in Article 38 The abandoning, piling up and disposal of mining tailing, waste ores, cinders, garbage and other solid wastes along shore and beach shall be conducted in accordance with relevant provisions of the “Law of the People’s Republic of China on the Prevention and Control of Environment Pollution Caused by Solid Wastes”. in Article 55 No units is permitted, without approval of the competent State administrative department in charge of marine affairs, to dump any wastes into the sea areas under the jurisdiction of the People’s Republic of China. Units that need to dump wastes in the sea must submit a written application to the competent State administrative department in charge of marine affairs for its examination and approval and shall not proceed the dumping before a permit is granted by the said department. Wastes from outside the boundaries of the People’s Republic of China are prohibited to dump into the sea areas under the jurisdiction of People’s Republic of China. in Article 73 Whoever, in violation of the provisions of this law, commits any of the following acts, shall be ordered to remedy within a certain period of time and be fined by the competent department invested by law with power to conduct marine environment supervision and administration with the provisions of this law:… (3) dumping wastes in the sea without obtaining certificate of permit for dumping; … (3), shall be fined not less than 30,000 yuan but no more than 200,000 yuan; … in Article 62 No vessels and their related operations shall, in the sea areas under the jurisdiction of the People’s Republic of China, discharge pollutants, wastes, ballast water, vessel garbage and other harmful substances into the sea in violation of the provisions of this law. Those engaged in the business of collection of the pollutants. Wastes and garbage from vessels and the operation of vessel cabin cleaning and washing must possess corresponding capabilities of pollutant collection and treatment. in Article 69 Ports, docks, loading and unloading spots and shipyards must, in accordance with relevant regulations, be equipped with proper facilities to accommodate and deal with vessel-induced pollutants and wastes, and shall keep these facilities in good conditions. Ports, docks, loading and unloading spots and shipyards must draw up contingency plans to deal with oil spill pollution and shall be equipped with corresponding contingency equipment and devices to deal with oil spill. in Article 88 Whoever, in violation of the provisions of this law, commits any of the following acts, shall be warned or fined by the department invested with power to conduct marine environment supervision and administration in accordance with the provisions of this law: (1) ports, docks, loading and unloading spots and vessels which are not equipped with pollution prevention facilities and devices; (2) vessels no in possession of pollution prevention certificate and pollution prevention document, or do not take records of pollutant discharge in accordance with relevant provisions. (3) Engaged in surface and port water area ship dismantling, old vessel refitting, salvaging and other surface and underwater operations which cause pollution damage to the marine environment;…. Whoever commits any of the following acts mentioned in previous clause(1)…, shall be fined not less than 20,000 yuan and not more than 100,000 yuan; act mentioned in previous clause (2) shall be fined no more than 20,000 yuan; and act mentioned in previous clause (3) shall be fined not less than 50,000 yuan and not more than 200,000 yuan. in Article 95 For the purpose of this law, the definitions of the following terms are: (1) “pollution damage to the marine environment” means any direct or indirect introduction of substances or energy into the marine environment which results in deleterious effects such as harm to marine living resources, hazards to human health, hindrance to fishing and other legitimate operations at sea, impairment of the useful quality of sea water and degradation of environment quality.…. 2.3 Regulations and institutional legislation 2.3.1 Regulations on the Prevention of Pollution Damage to the Marine Environment by Land-based Pollutants Article 11 It is prohibited to pile up, discard, or dispose of solid wastes along seashores and beaches without approval. If it is really necessary to pile up or dispose of solid wastes for the time being, a written application shall be submitted according to the examining and approving procedures stipulated by the environmental protection departments of the coastal provinces, autonomous regions, and municipalities directly under the central government. The application shall mainly include the following contents:the name and address of the applicant;… Article 12 Any organization or individual who has been approved to set up waste yards and treatment facilities shall build dikes and facilities against raising dust and leakage of wastes. Prior to their use, the dikes and facilities shall pass the inspection by the environmental protection department that approved the establishment of the waste yards and treatment facilities. 2.3.2 Regulations on the Administration of Environmental Protection in the Exploration and Development of Offshore Petroleum Article 12 Requirements of control for other waste materials: (1) .. (2) the dumping of industrial garbage in large quantities is to be managed in accordance with the stipulations of marine dumping of waste materials; fragmentary industrial garbage may not be discarded into the fishery waters and sea-lanes; (3) domestic garbage that need to be discharged within 12 nautical miles from the nearest land shall undergo pulverization treatment with the granules less than 25 millimeters in diameter. 2.3.3 Regulations on the prevention of Vessel-induced Sea Pollution Article 27 Garbage from vessels shall not be dumped at will into harbor waters. Vessels carrying toxic or dusty bulk goods may not wash the decks and cabins at will in the harbors, or discharge the residue materials in the harbors in any other ways. If washing is really necessary, applications must be submitted to the harbor superintendencies in advance for approval. Article 28 Any vessel in the harbor that needs to dump garbage shall raise on board signals as designated by the harbor, and hire garbage boats/trucks to dispose of it. At the same time the following requirement must be met: (1) the containers for storing and collecting domestic garbage of the vessel must have covers and may not leak, and dumping must be done at regular intervals; (2) cabin paddings, materials used for sweeping the cabin and various types of solid garbage shall be dumped by the shipping service departments; the vessel shall apply to these departments in advance and provide the information about the types and amounts of the materials to be dumped;… Article 30 Vessels disposing of garbage at sea shall conform to the following stipulations: (1) plastic products may not be cast off into the sea; (2) granulated domestic garbage and kitchen wastes of less than 25mm in diameter may, after pulverization treatment, be cast off beyond 3 nautical miles from the nearest land; those which have not been thus treated shall be cast of beyond 12 nautical miles from the nearest land. Article 31 Any unit that needs to use vessels to dump waste materials shall submit the document of approval by the State Oceanography Bureau or by its agency to the harbor superintendency of the harbor where shipment starts, and may go through the visa procedures for the vessels to make their entry and exit only after verification. If the actual cargoes are found to be not in conformity with the contents approved, the visa application shall be rejected. Article 36 In surface ship scrapping, the scraps may not be cast off into the sea…. Article 47 The maximum amount of a fine on a shipowner is 100,000 yuan… 2.3.4 Regulations on Control over Dumping of Wastes in the Ocean Article 4 The competent departments responsible for matters concerning the dumping of wastes are the National Oceanographic Bureau and its agencies. Article 11 Waste matters fall into three categories in the light of their toxicity, content of harmful elements and the impact upon the marine environment. The criteria used for categorization shall be worked out as annex by the competent department and subject to amendment in the light of changes in ecological environment, the development in science and technology and the need in protecting the marine environment. 1. The dumping of wastes and other substances as listed in Annex I is prohibited. In times of emergency, when wastes cannot be disposed of on land because of its impact upon human health, emergency permits shall be issued with the approval of the National Oceanographic Bureau to dump wastes in prescribed ways and designated areas. 2. The dumping of wastes as listed in Annex II shall require special permits in advance. 3. The dumping of wastes of low or no toxicity other than those listed in Annex I and Annex II shall require ordinary permits in advance. Annex I …4. Fishing net, ropes, plastic products and other artificial synthesis which can float on the surface or suspend in the water, and thus seriously interfere with navigation, fishing and other activities, or endanger the ocean life. Annex II 3. Containers, waste metals and other heavy waste materials that will easily sink to the bottom of the sea and might seriously hinder fishing or navigation. 2.3.5 Proposals on Strengthening the Management of the Plastic Package Wastes along Main Roads, in River Basins and at Tourist Attractions … 3. It is prohibited to litter or deposit plastic package wastes or other solid wastes into rivers, lakes and or on their banks. In the Yangtzi River, the Thai Lake, the major tourist attractions and other inland waters, the local people’s governments shall, within three months, organize the cleaning of the plastic package wastes floating in the water or deposited on the banks. 5. The departments of communications at different levels shall strengthen the management of ship rubbish. All ships shall be equipped with the Ship Rubbish Register, the Ship Rubbish Management Plan, the bulletin boards and enough containers to store rubbish as required by relevant laws and regulations…. 3. ANALYSIS AND COMMENTS 3.1 Advantages 3.1.1 Main marine litter sources are well covered through the regulations The four regulations on Land-based Pollutants, Exploration and Development of Offshore Petroleum, Vessel-induced Sea Pollution, and Dumping of Wastes, respectively, cover the main sources for marine litter to a high extent including both the land-based source and sea-based source. Though no individual regulation is available covering waste fishing facilities as an important source for marine litter, it is clearly regulated in the Regulations on Control over Dumping of Wastes in the Ocean in its Article 11 and Annex I. 3.1.2 Each corresponding administrative department has a distinct authority and responsibility on marine environmental protection In the Marine Environmental Protection Law’s Article 5, the roles in protecting marine environment for the competent administrative department in charge of environmental protection, marine affairs, maritime affairs, and fisheries are clearly settled. Concerning the marine litter, it can be said that competent administrative department in charge of environmental protection cares for the land-based marine litter, maritime affairs and fisheries authority together care for ship-based marine litter sharing a respective part, and marine affairs authority for other sea-based marine litter except the ship-based one. 3.1.3 Marine litter is included, even not by a direct manner, in the law In the Article 95 of the Marine Environmental Protection Law, the definition of “pollution damage to the marine environment” is given as “means any direct or indirect introduction of substances or energy into the marine environment which results in deleterious effects such as harm to marine living resources, hazards to human health, hindrance to fishing and other legitimate operations at sea, impairment of the useful quality of sea water and degradation of environment quality.….”. In my opinion, marine litter has accordance with the descriptions like “substances”, “harm to marine living resources”, “hindrance to fishing” and “degradation of environment quality”. 3.1.4 Existing several clauses highly related to marine litter There are some rules that have high relationship with marine litter indeed. For example, Regulations on the Administration of Environmental Protection in the Exploration and Development of Offshore Petroleum’s Article 12 require control for dumping of industrial garbage, and require that domestic garbage within 12 nautical miles from the nearest land shall undergo pulverization treatment with less than 25 millimeters. In the Regulations on the prevention of Vessel-induced Sea Pollution’s Article 30, plastic products are forbidden to be cast off into the sea, and domestic garbage less than 25mm may, after pulverization treatment, be cast off beyond 3 nautical miles from the nearest land; those not been treated shall beyond 12 nautical miles. In Article 11 of the Regulations on Control over Dumping of Wastes in the Ocean, wastes fall into three categories and that listed in Annex I is prohibited to dump, and fishing net, ropes, plastic products and other artificial synthesis which can float on the surface or suspend in the water are listed in Annex I. 3.1.5 Management of the Plastic Package Wastes are emphasized by the State Council The Proposals on Strengthening the Management of the Plastic Package Wastes along Main Roads, in River Basins and at Tourist Attractions were approved by the State council specially dealing with the plastic package pollution. In its second, third and fifth proposal, non-degradable one-off vesicant plastic is restricted, plastic package wastes are prohibited to litter or deposit into rivers, lakes and or on their banks(which may be an important source for marine litter) and ship rubbish management is strengthened. 3.2 Disadvantages 3.2.1 Long revision period Though the Marine Environmental Protection Law was revised in 1999, the four regulations were not ever revised since 1990, and three of them all have a history over twenty years. As the situation of marine environmental protection has changed a lot, some requirements gradually lose its time characteristic. For example, the punishments involved in the four regulations are not enough from nowadays’ point of view, which limit the fine to 100,000 yuan (about 12, 500$). 3.2.2 The word “Litter” never appears Though as the 3.1.4 part above mentioned, there are some requirements set by laws and regulations that have high relationship with marine litter, the word “marine litter” or “litter” is not included in any article of corresponding laws and regulations. Wastes with no obvious toxic effect but only sensuous or physical effect, like marine litter, may still not be the most important care and not be weightily regulated.
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