Ratification and Implementation of International Environmental Law Agreements/Conventions by Pakistan

RATIFICATION AND IMPLEMENTATION OF RATIFICATION AND IMPLEMENTATION OF INTERNATIONAL ENVIRONMENTAL LAW AGREEMENTS/CONVENTIONS BY PAKISTAN By Rehart Rauf, Advocate, Lahore Abstract Pakistan is party to a numbers of treaties and agreements and adherence to more will be forthcoming. These treaties and agreements are subject to ratification by Pakistan and can be enforced as law only when the legislation is made by the country through its legislature. Section 31 of the Pakistan Environmental Protection Act, 1997, deals with the International Agreements. It provides that the ministry must by notification in official gazette make rules for implementing the provisions of International Environmental Agreements listed in the Schedule to the PEPA, 1997, Act. The following is a summary of all the International Environmental Law Agreements and Conventions signed and ratified by Pakistan. THE CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR DISPOSAL, BASEL, 1989 1. Background The convention on the Control of Transboundary Movements of Hazardous Wastes and their disposal, 1989(Basel Convention) established a global regime for the control of international trade in hazardous and other wastes. Pakistan acceded to the Basel Convention on 26 July 1994. 2. Characteristics The starting point of the Basel Convention is the requirement that parties inform the secretariat of the Basel . Convention of the definition of Hazardous Waste under their national legislation and of any requirements concerning transboundary movement procedures applicable to such wastes. The parties to Basel Convention are further obliged to minimize waste generation and its transboundary movements and to ensure its environmentally sound managements (Article 4). They must not allow export to parties that have prohibited by legislation all imports, or where there is reason to believe that the wastes will not be managed in an environmentally sound manner. Moreover, there is an obligation on parties to co-operate to improve and achieve environmentally sound management of such wastes, {Article 4(1) (C)}. As further safeguard parties may prohibit the import of such wastes and they must consent in writing to any specific imports that they have not prohibited. To ensure effective implementation of the aims of the Basel Convention, the parties are obliged to designate or establish one or more competent authorities. 3. Enforcement (i) Public Interest Litigation. In 1994, in the Human Rights Case (Environment Poilation in Balochistan), PLD 1994 SC 102 the Supreme Court of Pakistan moved suo motu under Article 184(3) of the Constitution to prevent the dumping of imported industrial and nuclear wastes in Pakistan. The Court ordered the allotees not to engage in dumping industrial or nuclear wastes of any nature on land or in the sea or by destroying it by any device. The Supreme Court further directed to all concerned governmental agencies to include a condition in the allotment letters that the allotted land shall not be used for dumping industrial or nuclear wastes. (ii) Federal Laws To make sure the strict compliance with the Basel Convention the Government of the Pakistan has prohibited the handling of hazardous substance except under licence from the relevant authorities. The following federal laws are relevant in this regard:- (1) Pakistan Environmental Protection Act, 1997 (2) Pakistan Nuclear Regulatory Authority Ordinance, 2001 and (3) Import Policy Order, 2004 made under section 3(1) of the Import and Export (control) Act, 1950 (iii) Prohibition of the trade in Hazardous Waste Complying with the obligations of Article 4 of the Basel Convention, section 13 of the Environmental Protection Act prohibits the import of hazardous waste into Pakistan. (iv) Establishment of relevant Authorities Environment protection authorities are established under sections 5 and 8 of the PEPA to regulate the trade and handling of hazardous waste and substances by the required trained staff. In addition sections 3 and 16 of the Nuclear Authority Ordinance serve to regulate the import, export, transportation, possession, transfer and disposal of nuclear substance or any other substance as notified by the Nuclear Regulatory Authority. (4) Recommendations Pakistan has complied with the Basel Convention by banning the import of hazardous wastes. However, there is no ban on the export of hazardous wastes, which needs to be incorporated in section 13 of the PEPA, 1997. CONVENTION ON BIOLOGICAL DIVERSITY, RIO DE JANEIRO, 1992 (1) Background When the Biodiversity Convention came into force on 29 December under the impetus of the 1992 Earth Summit in Rio de Janeiro, it was a landmark treat which took a comprehensive rather a sectoral approach to the conservation of the Earth's biodiversity and sustainable use of biological resources. Significantly the Biodiversity Convention moved beyond issues of conservation and sustainable development to include access to genetic resources, sharing of benefits from the use of genetic material and access to technology. The Biodiversity Convention has been signed and ratified approximately .by 188 States. The Government of the Pakistan signed the Biodiversity Convention on 5 June 1992 and ratified it on 26 July 1994. (2) Characteristics The objectives of the Biodiversity Convention are stated in Article 1:-- "The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and technologies, and by appropriate finding." It can be seen in said Article 1 that the Biodiversity Convention establishes three main goals: the conservation of biological diversity, the sustainable use if its components, and the fair and equitable sharing of the benefits from the use of genetic resources. The Biodiversity Convention is pre-eminently a framework agreement as its sets overall goals and policies and leaves the task of enforcement to the individual parties. (3) Enforcement Under the Biodiversity Convention the Government of the Pakistan prepared Biodiversity Action Plan in August 1999 which encompasses in one report the sequential processes of a country study, national strategy and action plan. Furthermore, the second national report has also been submitted to the secretariat along with thematic studies on forest ecosystems and alien species. (4) Recommendations By adopting the Biodiversity Action Plan 1999, which comprises a country study, national strategy and action plan, Pakistan has laid the basic framework for the conservation and sustainable use of biodiversity in the country. Now there is a requirement to act on the immediate, short term and long term enforcement schedule relating to legislative, policy and administrative changes provided in Table 5 of the BAP, 1999. The second National Report indicates that the government is working with the secretariat and the global Environment Facility to make progress on the remaining areas of weakness. MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER, MONTREAL, 1987 1. Background The 1985 Vienna Convention on the Protection of the Ozone Layer, the Montreal Protocol on Substances that Deplete the Ozone Layer, 1987 and the London and Copenhagen Amendments to the Montreal Protocol establish a framework for the adoption of measures to protect the Ozone Layer. Pakistan signed the Montreal Protocol on 18 April 1990 but has not yet ratified it. 2. Characteristics The main feature of the Montreal Protocol is that it sets specific legal obligation, including limitation and reductions in the calculated levels of consumption and production of certain controlled ozone depleting substances. The Montreal Protocol has established innovative provisions to achieve its environmental objectives (Article 4). These measures address trade in controlled substances by parties with States that are not parties to the Montreal Protocol. There is a ban on the import and export of controlled substances to any State not party to this Protocol. (Articles 4(1), 4(2)} 3. Enforcement The Government of the Pakistan has endeavored to comply with Article 4 of the Montreal Protocol regarding the banning of the trade of the Ozone Depleting Substances (ODS). In this respect section 16(b)(vi) of the Import Policy Order, 2004 made under section 3(1) of the Import and Exports (Control) Act, 1950 puts restrictions on the import of ODS. 4. Recommendations The Montreal Protocol should be ratified and in this respect Pakistan has already taken effective steps to comply with the trade restrictions set forth therein. However, in order to effectively control the production and consumption of ODS, certain additional steps are recommended. The concept of Ozone Depleting Substances should be included in the definition of "air Pollution" in section 2(iii) of the Pakistan Environmental Protection Act, 1997. Furthermore, the National Environmental Quality Standards (NEQS) should be revised in accordance with the Montreal Protocol and the Import Policy. STOCKHOLM CONVENTION ON PERSISTENT ORGANIC POLLUTANTS, STOCKHOLM. 2001 1. Background The Stockholm Convention is a global treaty to protect human health and the environment from persistent pollutants (POPs). These are the chemicals that remain intact in the environment for long periods, become widely distributed geographically, accumulate in the fatty tissue of living organisms and are toxic to human and wildlife. They circulate globally and can cause damage wherever they travel. Pakistan signed the Stockholm Convention on 26 December 2001. In order to implement the Stockholm Convention, Pakistan will be required to take measure to eliminate or reduce the release of Persistent Organic Pollutants into the environment. 2. Characteristics The Stockholm Convention prescribes measures to achieve the elimination of the production, use, import and export of certain chemicals and restriction of the production and use of the chemicals. Whereas the import of the certain chemicals is permitted subject to their environmentally sound disposal, the production of new pesticides is to be prevented altogether (Article 3(3) and (4)}. Issued such as register of specific exemptions, measure to reduce or eliminate releases from unintentional production and measures to reduce or eliminate releases from -stockpiles and wastes, as well as manner in which the handling, collecting, transporting, and storing of POPs is to be achieved in an environmentally sound manner, are dealt with in Articles 4-6. Provision is also made in the Stockholm Convention to encourage information exchange relevant to the reduction or elimination of the production, use and release of POPs and to promote public awareness and education about these substances (Articles 9-101. 3. Enforcement In order to make measures eliminating POPs, Pakistan has the following laws dealing with the use, trade, storage and manufacturing of chemicals and pesticides:-- 1. PEPA, 1997. (i) Agriculture Pesticide Ordinance, 1971. (ii) Import Policy Order, 2004. The Government of the Pakistan has elaborated its future direction with respect to POPs in-line with the findings of a review of the National Conservation Strategy as set out in the form of the National Environmental Action Plan (NEAP). The NEAP support program has sub program in the areas of policy coordination and environmental governance, and pollution control, which are closely linked with the POPs activities. Pesticides are regulated under the Agricultural Ordinance and Rules 1973. These Rules establish the -Agricultural Technical Advisory Committee (APTA) for carrying out the registration of pesticides. APTA obtains detailed information about the product including its name, composition, active ingredients, efficacy, residue, toxicological and eco toxicological data, labelling and direction of use as well as methods for analysis, disposal of surplus pesticides and packaging. If safety and efficacy requirements are met, registration is granted and then renewed periodically. CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA, (CITESI WASHINGTON 1973 1. Background The objectives if CITES are to ensure that international trade in specimen of wild animals and plants does not threaten their survival. Pakistan signed CITES on 9 July 1976 but has not yet ratified it. 2. Characteristics CITES allows for the listing of species of animal and plants in three different appendices depending on their level of endangerment. All species threatened with extinction are listed in Appendix 1. Over 700 species are listed in appendix 1. Over 40,000 species are listed in appendix II. These species are such that are not necessarily now threatened with extinction but may become so unless their trade is strictly regulated to avoid their use in a manner that may jeopardize their survival. The final list of species is in appendix III. This list comprises species that are not necessarily endangered internationally, but have been earmarked as fit cases for international cooperation for restricting their exploitation. 3. Enforcement The trade of the entire species listed in the appendixes of the Convention is protected by the Export Policy Order, 2004 passed under section 3(1) of the Imports and Exports (Control) Act, 1950. Section 4 of the Export Policy states that exports of all goods shall be allowed except those specified in Schedule. Schedule I Serial No. 2 of the Export Policy bans the export of all the species of Appendices I and II of the Convention and all animals, mammals, reptiles and endemic birds protected under the Provincial Wildlife laws. It also provides for mandatory checking by the provincial wildlife departments at airports and other exit points. Schedule I Serial No. 3 of the Export Policy bans the export of the species of Appendix III of the Convention. In order to enforce the CITES, the government has enacted the following four provincial and one federal laws, 1. Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974. 2. N.W.F.P Wildlife Protection, Conservation and Management Act, 1975. 3. Sindh Wildlife Protection Ordinance, 1972. 4. Balochistan Wildlife Protection Act, 1974. 5. Islamabad Wildlife (Protection, Preservation, Conservation and Management) Ordinance 1979. All the Wildlife Laws are similar in contents. CITES deals with wild animal and plants and the specimens defined in Article I (b) include animal and plants mentioned in Appendices I and II. However, the Wildlife Laws only protect animals and not the plants listed in the Appendices of the Convention. This deficiency needs to be corrected. 4. Recommendations CITEs should be ratified by Pakistan which has already taken a number of steps, to implement its provisions. As discussed in III above the export of all the species in the Convention is protected by the Export Policy and the Wild Life Laws but only the import of animals species mentioned in the Wild Life Laws is protected. Therefore, CI , plants not mentioned in the Wild Life Laws and covered in CITES need to be given legislative protection. CARTAGENA PROTOCOL ON BIOSAFETY 1. Background On 29 January 2000, the Conference of the parties to the Convention on Biological Diversity adopted a supplementary agreement to the Convention known as the Cartagena Protocol on Biosafety which came into force on 11 September 2003. The protocol seeks to protect biological diversity from the potential risks poses by living modified organisms resulting from the modern biotechnology. The government of Pakistan signed the Protocol on 4 June 2001 but has not yet ratified it. 2. Characteristics The Cartagena Protocol applies to the transboundary movements, transit, handling and use of all living modified organisms that may have adverse affects on the conservation and sustainable use of biological diversity, taking also into account risks to human health (Article 4). Pharmaceuticals are expressly exempted from the Cartagena Protocol's scope and operation (Article 5). There is an advance informed agreement procedure for ensuring that prior consent of importing countries is taken before the transboundary movement of living modified organisms for intentional induction into the environment (Article 7). Parties that make a decision to allow the placing on the market of a living modified organism that may be subject to transboundary movement for direct use as food or feed or for processing, has to inform other parties through the Biosafety Clearing House (Article 11). The Biosafety Clearing House is meant to facilitate the exchange of information on living modified organisms and to assist countries in the enforcement of the Cartagena Protocol. Risk management is a priority area whereby parties establish and maintain appropriate mechanism measure and strategies to regulate, manage and control risks identified associated with the use, handling and transboundary movement of living modified organisms (Article 16). To coordinate with the Secretariat, each party must appoint a national focal point for liaison purposes and a competent national authority for administration; the two offices may be merged in a single representative (Article 19). As states vary in technological proficiency, it is provided that the parties shall cooperate in the development and strengthening of human resources and institutional capacities in biosafety, including biotechnqlogy to the extent that it is required for biosafety, for the purpose of the effective implementation of this Protocol... (Article 22) 3. Enforcement The Cartagena Protocol has not yet been enforced by Pakistan. However, the National Biosafety Committee has prepared draft guidelines for commercial use of biotechnology in agriculture and industry in Pakistan. 4. Recommendations According to a note prepared by Secretariat by the secretariat of Biodiversity Convention on 5 September 2003, the Cartagena Protocol in entering into force at the time when more than 100 countries are still in process of developing their national biosafety framework. The note advises that countries should not necessarily wait for the introduction of the necessary legal and administrative framework before ratifying the Convention. The ministry of the environment should be urged to ratify the Cartagena Protocol and expedite the development of a national biosafety policy and legal framework. If necessary the support of UNEP/GEF biosafety capacity building project should be obtained if it has not been done so already. By ratifying and implementing the Cartagena Protocol, Pakistan stands to benefits from the great commercial and scientific potential of modern biotechnology whilst ensuring that no compromises are made with regard to public safety RAMSAR CONVENTION ON WETLANDS OF INTERNATIONAL IMPORTANCE 1971 Pakistan has ratified the 1971 Ramsar Convention on Wetlands of International Importance. This Convention requires Pakistan to promote the conservation of listed wetlands and the wise use of wetlands in its territory. Pakistan has notified approximately 16 Ramsar Sites for conservation of wetlands associated biodiversity in Pakistan. IUCN Pakistan and WWF Pakistan have both been very active not only in biodiversity studies and management planning for these areas, but also technical preparation for these Ramsar designations. CONVENTION ON THE CONSERVATION OF MIGRATORY SPECIES OF WILD ANIMALS. (CMS). BONN 1979 Pakistan is signatory to 1979 Convention on the Conservation of Migratory Species of Wild Animals. This Convention applies to all species for which a significant proportion of the population habitually moves across national boundaries. There is an obligation on Pakistan to conserve the status of animals for which its territory is a range. The NCCW has also encouraged the Provincial Wildlife Departments to implement the obligation of the CMS. The threatened migratory species like cranes, geese, storks, pelicans, duck, swans, ibises, black bear, leopard, and dolphin are protected in most of the provinces under the Wildlife Laws such as section 9(ii) and the third schedule of the PWPA. CONVENTION ON PROTECTION OF WORLD CULTURAL AND NATURAL HERITAGE. 1972 Pakistan has ratified the 1972 Convention on Protection of World Cultural and Natural Heritage. This Convention places Primary duty on Pakistan to do all it can to identify, protect, present and transmit the natural and cultural heritage to future generations. Pursuant to the Convention, Pakistan enacted the Antim, ides Act, 1975 and the National Fund for Cultural Heritage Act, 1994. Similarly, the Sindh government enacted the Sindh Cultural Heritage (Preservation) Act, 1994 and the NWFP has also drafted the NWFP Cultural Heritage (Protection and Promotion) Ordinance. UNITED NATIONS CONVENTION TO COMBAT DESERTIFICATION (THE CCD), 1994 Pakistan is a party to 1994 United Nations Convention to Combat Desertification. Pakistan is required to regularly submit reports on the implementations of the CCD in Pakistan since 1997. Fulfilling its obligations under CCD, Pakistan has prepared National Action Plan to combat desertification on Pakistan. TREATY BANNING NUCLEAR WEAPON TESTS IN THE ATMOSPHERES IN OUTER SPACE AND UNDERWATER, 1963 Pakistan is signatory to the 1963 Treaty Banning Nuclear Weapons Tests in the Atmospheres, in Outer Space and Underwater. In addition to banning nuclear weapons testing in the atmosphere and related areas, the Treaty protects the environment from contamination by radioactive substances. UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (THE LQS CONVENTION), MONTEGO BAY, 1982 Pakistan is a signatory to the 1982 United Nations Convention on the Law of the Sea. This Convention aims to establish a comprehensive legal regime to govern activities in and in relation to the world's seas and oceans. The LOS Convention requires Pakistan two main environmental objectives: to prevent, reduce and control marine pollution and to conserve and manage marine living resources. UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE, (THE UNFCCC), RIO DE JANEIRO. 1992 Pakistan is a signatory to the 1992 United Nations Framework Convention on Climate Change. The objective of this Convention is the stabilizations of greenhouse gas concentration in the atmosphere at level that would prevent dangerous anthropogenic interference with the climate system. The ratification of the Convention triggered a series of activities in Pakistan regarding climate change issues. These included Asia Least-coast greenhouse Gas Abatement strategy project completed in 1998, which was the first comprehensive National project on Climate Change and that covered both quantification of emissions and the setting out of a long term emissions reduction programme.' The country case study on Climate Change Impacts and Adaption Assessment in Pakistan was also completed in 1998 which assessed the Impact of Climate Change on four major sectors of economy, which is agriculture, forestry, water resources, and meteorology. All parties to the Convention are required to prepare a National Communication to the UNFCC, which contains an inventory of Greenhouse Gases, and also indicates policies and measures which the government will take to adapt to or mitigate the adverse impacts of climate change. Others Following are a few other International Environmental Agreements/Conventions which are ratified and are being implementing by Pakistan:-- (1) Convention on the Prohibition of the Military or any other Hostile Use of Environmental Modification Techniques 1977. (2) International Convention on Oil Pollution Preparedness, Response and Co-operation 1990. (3) Convention on Territorial Sea and the Contiguous Zone 1958. (4) Agreement on the Network of Agriculture Centre in Asia and the Pacific 1988. (5) Convention of the Fishing and Conservation of the Living Resources of the High Seas 1958. (6) Convention on the. High Seas 1958. (7) Convention on the Continental Shelf 1958. (8) International Plants Protection Convention Rome, 1951. (9) Plant Protection Agreement for the South-East Asia and Pacific Region (as amended), Rome, 1956. (10) Agreement for the Establishment of a Commission for Controlling the Desert Locust in the Eastern Region of its distribution Area in South-West Asia (as amended), Rome, 1963. (11) Vienna Convention for the Protection of the Ozone Layer, Vienna, 1985. Epitome Pakistan is bound to follow the International Environmental Law Agreements/Conventions which are ratified by it. In this regard the Superior Courts of Pakistan have interpreted domestic and National obligations with reference to International Treaties and Declarations, for example Shehia Zia v. WAPDA, PLD 1994 SC 693. This is relevant inasmuch as any ambiguity in a domestic law will be interpreted to harmonize it with the specificity of an International Convention. Moreover, the Superior Courts generally accommodate the rules of international law in the domestic law without expressed legislative sanction. The Courts justify this on the strength that the nations of the world must march with the international community, and thus. the domestic laws must respect the rules of international law, which may be referred to by the courts as they have a persuasive value and command universal respect. The Courts clarify that any confrontation between the two should be avoided. However, where it is inevitable and cannot be harmoniously construed, effect should be given to domestic law. For example, M/s. Najib Zarab Limited v. Government of Pakistan, PLD 1993 Karachi 93 and Wajid Shams-ul-Hassan vs. Federation of Pakistan, PLD 1997 Lahore 617. In making recommendations to the Government of the Pakistan, the most effective way could be to seek amendments to the Constitution such that some Articles on Fundamental Rights can be expanded to cover the thrust of the International Convention, but we are aware of the 'difficulties of this approach. Our effort is to suggest amendments or additions to Federal or Provincial laws in a "Minimalist" approach.