Chapter 11 From the Plastics Revolution to the Marine Plastics Crisis

A Patchwork of International Law

In: Frontiers in International Environmental Law: Oceans and Climate Challenges
Author: Nilüfer Oral
Open Access

Abstract

The plastic revolution that started in the 1950s has become the plastic crisis for the marine environment in the 21st Century. The problem of marine litter and microplastics represents a frontier in international law where the existing system of international law faces a complex challenge in either enabling a global and collective transition or strengthening of existing instruments, through the adoption of a new global instrument, or both.

This chapter will examine in detail existing legal instruments related to the protection of the marine environment and their respective roles in addressing the problem of marine litter and microplastics. The chapter will begin with a brief examination of the history of plastic and its principal sources. It will then examine the scope of and gaps in key global instruments for the marine environment, as well as regional approaches, in relation to addressing the problem of marine litter and plastics. The chapter will conclude with a review of the possible options under discussion by States under the auspices of the United Nations Environmental Programme for addressing the problem of marine litter and microplastics.

1 Introduction

The plastic revolution that started in the 1950s has become the plastic crisis for the marine environment of the twenty-first century. Dramatic photographs of dead birds with open guts filled with plastic objects, turtles and dolphins ensnared in plastic ghost nets, and the massive islands of marine litter and plastic caught in ocean gyres, such as the Pacific Ocean gyre which is claimed to be larger in size than the state of Texas,1 have recently captured public and media attention. Yet the problem is not wholly recent. Marine litter and plastics were identified as far back as the 1970s.2 Marine debris, litter, plastics and microplastics (hereinafter referred to as marine litter and microplastics) are now recognized as major threats to the marine environment and its ecosystems, habitats and overall biodiversity.3 The problem affects some 650 species and, in particular, species listed on the iucn Red List.4 Subject to regional variances, overall an estimated 80 percent of marine litter is land-based and 60 percent of all floating debris in the oceans is plastic.5

Marine debris, defined by the United Nations Environment Programme (unep) as ‘any persistent, manufactured or processed solid material discarded, disposed of or abandoned in the marine and coastal environment’, features prominently on the agenda of the United Nations. It is the object of concern by the General Assembly.6 It was examined scientifically in the First United Nations World Ocean Assessment.7 It was discussed in a five-day long United Nations Informal Consultative Process under the UN Division for Ocean Affairs and the Law of the Sea.8 And it features in Sustainable Development Goal 14 of the 2030 Agenda for Sustainable Development.9 The United Nations Environmental Assembly (unea) has adopted four resolutions concerning marine litter and microplastics.10 During unea-3, held in Nairobi 4-7 December 2017, an Ad Hoc Open-Ended Expert Group was established to examine barriers and possible options for combating marine plastic litter and microplastics from all sources, especially land-based sources.11

The problem of marine litter and microplastics represents a frontier in international law. Indeed it is described as a planetary boundary threat,12 where the current system of international law is challenged to meet this complex challenge by enabling a global and collective transition either through the strengthening of existing instruments, the adoption of a new global instrument or both.13 This chapter will examine in detail existing legal instruments related to the protection of the marine environment and their respective roles in addressing the problem of marine litter and microplastics.14 The chapter will begin with a brief examination of the history of plastic and its principal sources. It will then examine the scope and gaps of key global instruments for the marine environment as well as regional approaches in relation to addressing the problem of marine litter and plastics. The chapter will conclude with a review of the possible options under discussion by States under the auspices of unep for addressing the problem of marine litter and microplastics.

2 Defining the Problem

The generic term ‘plastics’ encompasses a complex set of molecules called ‘polymers’. These polymers are divided into those that are fossil-fuelled based and those that are derived from biomass. The fossil-fuelled based synthetic polymers are composed of two broad categories. Plastic is the common term for the thermoplastic group of synthetic polymers. Well-known examples are polyethylene (pe), polyethylene terephthalate (pet), polypropylene (pp), polyvinyl chloride (pvc) and polystyrene (ps, including expanded eps).15 These are used in making fishing gear (nets, ropes and floats), bottles, food containers, pipes, cigarette butts, insulation and films. The other category of synthetic polymers, thermoset is used for making insulation, coatings, adhesives, composite tyres and balloons. The biomass derived plastics is found in cellulose, lignin, wool, starch, protein and dna.16 So-called biodegradable plastics have been shown not to degrade in the oceans. Indeed, according to a report by unep, ‘biodegradable’ or ‘oxo-degradable’ products would not bring about a significant decrease either in the quantity of plastic entering the ocean or the risk of physical and chemical impacts on the marine environment, on the balance of current scientific evidence.17

The sources of marine debris and plastics are primarily land-based and supplemented by fishing activities (namely, ‘abandoned, lost or otherwise discarded fishing gear’ (aldfg), as well as the aquaculture industry) and shipping (dumping and discharges).18 The impacts of marine debris and plastics on coastal areas and the ocean range from the highly visible litter strewn along beaches to lethal entanglement of marine species in lost or abandoned fishing nets. There is also growing evidence that humans may be ingesting microplastics from fish, raising concerns for human health and safety.19 The common ‘culprits’ of marine plastics include such sundry items as plastic straws, cotton tips, bottle tops, cigarette butts, the ubiquitous plastic bag and many more items used daily around the world. Marine debris and plastics are a transboundary problem, carried by ocean currents to remote areas in the Pacific Ocean, as well as the Arctic and Antarctic. According to information provided by the First Global Integrated Ocean Assessment, some 275 million metric tons (mt) of plastic waste was generated in 192 coastal countries in 2010, with 4.8 to 12.7 million mt entering the ocean.20

The challenge in addressing the different components of marine debris cuts across many fields: scientific, economic, social, political and legal.21 For international law, the question is whether existing legal instruments, in particular the 1982 United Nations Convention on the Law of the Sea (losc),22 provide the necessary legal foundation to address the plastic threat to our oceans. There are also important barriers that the international legal system must address; there is no one-size-fits-all approach to the issue because most of the problems relate to how to tackle land-based sources and so are inherently bound up with domestic regulatory issues and competence. This chapter will examine the losc and its relationship with other international instruments in relation to marine litter and plastics.23

3 The Law of the Sea and Marine Debris and Plastics

3.1 losc and General International Law

The losc is recognized as the principal multilateral instrument regulating ocean activities. While there is no express reference to marine debris in the losc, the definition of pollution provided under Article 1(4) of the losc, that is, ‘the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, is broad enough to encompass all types of marine debris and plastics.24 Moreover, as will be detailed below, the obligation of States to protect the marine environment from all sources of pollution under the Convention with its broad and comprehensive scope, not only includes land and sea-based sources but also from the air (Article 212).

Article 194(2) of the losc imposes a very clear obligation on States to adopt the necessary measures to prevent, reduce and control pollution from all sources, including vessel and land-based sources and activities, at the global, regional and national levels. Article 194(3) specifically requires that measures taken shall include, inter alia, those designed to minimize to the fullest possible extent ‘the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping’ (emphasis added). Marine litter and microplastics clearly come within the scope of this provision. Article 194(5) further requires that measures adopted must include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. The deleterious impact of marine litter and microplastics on threatened or endangered species, in particular sea turtles, cetaceans and seabirds has been amply recorded.25

Mobile in nature, marine litter presents a case of transboundary pollution par excellence traversing multiple jurisdictions and reaching into remote areas of the oceans, including areas beyond national jurisdiction. The transboundary nature of marine litter and microplastics can be seen accumulating in ocean gyres and upwelling systems. Litter is mobile and ‘can be transported over long distances and into all marine habitats – from the surf zone all the way to remote mid-oceanic gyres and the deep sea floor’.26

One of the well-established norms of customary international law is the sic utere principle, according to which a State is prohibited from allowing activities under its jurisdiction or control that are harmful to neighbouring States.27 This principle has been articulated in international cases and instruments.28 It is codified in Article 194(2) of the losc as an obligation requiring States to ‘take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention’. It is an obligation that applies to areas both within and beyond national jurisdiction and control.

While the losc imposes clear obligations upon States to prevent, reduce and control pollution from all sources of pollution, as a framework convention it does not provide the details of the measures that are necessary to fulfil these obligations. It falls upon States to adopt such measures at the national or regional levels. The losc establishes the due diligence obligations of States, that is an obligation not only to adopt appropriate rules and measures, but to exercise a certain level of vigilance in their enforcement and the exercise of administrative control over public and private operators.29 This means that States have an obligation to actively develop regulatory measures to address the sources of marine debris and plastics with meaningful enforcement measures.

One of the key provisions of the losc is the obligation for States to protect and preserve the marine environment under Article 192. This obligation is broad, unqualified and applies to all activities that are harmful or risk harm to the marine environment. Marine litter and microplastics is principally a land-based source of pollution problem with regional variations regarding the scale of the problem.30 The main pathways to the oceans for marine litter and microplastics are through the discharge of wastewater and runoff water by river systems, and the fragmentation of discarded plastic products from landfills (domestic and industrial wastes).31 Globally, ten rivers are reported as being the principal source for most of the marine litter and plastic in the ocean, highlighting the land-based nature of the problem.32 The losc remains the only global instrument that imposes binding obligations on States to prevent, reduce and control pollution of the marine environment from land-based sources. Specifically, Article 207 (1) and (2) impose obligations on States to ‘adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures’ and ‘to take other measures as may be necessary to prevent, reduce and control such pollution’. These obligations are further complemented by the obligation of States to take cooperative action that includes efforts by States to harmonize their policies (Article 207(3)), and to cooperate through competent international organizations or diplomatic conferences to establish global and regional rules, standards and recommended practices and procedures.33 Furthermore, and of particular relevance for marine debris and microplastics, is the emphasis that such measures are to be ‘designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially those which are persistent, into the marine environment’ (Article 207(5)).

Accordingly, States have a number of obligations under Article 207 important for addressing marine litter and microplastics from land-based sources. These obligations include determining what the ‘necessary’ measures are to address the triple requirement to prevent, reduce and control land-based sources of pollution. Furthermore, Article 207 needs to be read in light of recent decisions by international courts and tribunals concerning State responsibility to protect the environment, as discussed in section 3.2 below. On the other hand, the requirement to cooperate through competent international organizations or diplomatic conferences to establish global and regional rules, standards and recommended practices and procedures is softened by the verb ‘to endeavour’. However, despite what appears prima facie as a non-binding obligation in Article 207(4), the established obligation of cooperation under customary international law remains. The duty of cooperation for the protection of the marine environment was clearly articulated by the International Tribunal for the Law of the Sea (itlos) in the Ireland’s request for provisional orders against the United Kingdom in the Mox Plant case,34 and in the Land Reclamation case request for provisional orders brought by Malaysia against Singapore.35 Indeed, a clear obligation of cooperation is codified in Article 197 of the losc, which provides that States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features’. In contrast to the Article 207 exhortation to cooperate, Article 197 creates a clear obligation as reflected in its use of the imperative ‘shall’.

How then are States to fulfil their obligation to cooperate at the global and regional levels to establish laws, regulations, measures, rules, standards and recommended practices and procedures, and in particular, that are ‘designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially those which are persistent, into the marine environment’? While the losc remains the only legally binding instrument at the global level to impose express legal obligations in relation to preventing land-based sources of pollution, States have cooperated in the development of a number of global and regional legal instruments, as well as soft law instruments, for addressing land-based sources of pollution in general and more recently instruments to address marine debris and plastics. These are further examined below.

3.2 Due Diligence Obligations of States to Protect and Preserve the Marine Environment from Marine Debris and Marine Plastics

Part xii of the losc marked the first comprehensive global regime for the protection and preservation of the marine environment.36 The clear and unqualified language of Article 192 mandates that States shall protect and preserve the marine environment. The content of this obligation has been further clarified by the International Court of Justice (icj), itlos and arbitral awards.

In the Pulp Mills case, the icj decided that the obligation to protect the aquatic environment and prevent pollution in particular is an obligation of conduct and not result, that requires the State to exercise due diligence.37 The Court explained the scope of the duty of due diligence as ‘an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators, to safeguard the rights of the other party’.38 The obligation of due diligence was subsequently adopted in the Seabed Dispute Chamber’s advisory opinion in Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area,39and by the full bench of itlos in the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission on illegal, unregulated and unreported (iuu) fishing.40

In the South China Sea Arbitration, the Arbitral Tribunal not only affirmed the due diligence obligation to protect and preserve the marine environment, it went further and gave what can be considered to be a robust and expansive interpretation to Article 192.41 The Tribunal first explained that Article 192 was informed by other provisions of Part xii of the Convention as well as by other applicable rules of international law. By referencing to ‘other applicable rules of international law’, the Arbitral Tribunal cast a broad normative net that is not necessarily restricted to international conventions or treaties but would include rules of customary international law and, possibly, soft law instruments. The Arbitral Tribunal further explained the meaning of to ‘protect and preserve the marine environment’ under Article 192. First, according to the Tribunal, the obligation to ‘protect’ the marine environment means protection from future damage and to ‘preserve’ means to maintain or improve the existing condition of the marine environment. Second, these two elements included the obligation to take active measures to protect and preserve and entail the negative obligation to prevent the degradation of the existing marine environment.42

In regard to marine litter and microplastics, it is clearly established that States have an obligation to protect the marine environment from land-based sources of pollution and in doing so must actively adopt the appropriate regulations and be vigilant in their enforcement. Article 207(4) of the losc establishes an obligation for States either through the competent international organizations or diplomatic conferences ‘to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources’. The need to address plastics and microplastic pollution of the marine environment presents an opportunity to fill a gap at the global level for land-based sources of pollution. Moreover, an additional obligation was stated in the arbitral award for States to control and monitor the activities of private operators. In the arbitral award, this was couched in terms of control over flag vessels, and this raises an interesting question as to its potential application in regard to manufacturers and producers of marine debris and plastics engaged in activities under the jurisdiction or control of the State. Furthermore, according to the South China Sea award, the obligation under Article 192 would entail taking measures to prevent future harm to the marine environment from marine debris and also to take active measures to remediate any harm.43 The threshold for required State action is relatively high and this would mean that based on scientific data concerning the harmful effects of debris and plastics on the marine environment, all State Parties to the losc, if not all States assuming Part xii represents customary international law, must meet at the minimum their due diligence obligations as well as their obligations to protect, prevent and preserve the marine environment from marine litter and microplastics.

These decisions by international courts and tribunals reflect a trend towards clarification of State obligations for protection of the marine environment by providing clear guidelines that are not expressly spelled out in the losc, particularly so in relation to State responsibility and the nexus between the accountability of States and the conduct of private actors. It is particularly important for States to have such clear articulation of what their specific obligations entail under Part xii, and in particular concerning meeting the requirements under Articles 192, 194 and 207. The decisions show that being passive will not meet the high threshold of implementation required under the due diligence obligation and the interpretation of Article 192.

3.3 The Internationally Legally Binding Instrument for the Conservation and Sustainable Use of Biological Diversity in Areas beyond National Jurisdiction

Marine litter and microplastics are of a highly mobile nature, carried by currents to all areas of the ocean, including areas that lie beyond the jurisdiction of any coastal State. For many years the international community had been discussing the need for a new international agreement to address conservation of biological diversity in the high seas or areas beyond national jurisdiction.44 In 2015, the General Assembly adopted a decision to develop an international legally binding instrument (ilbi) under the losc on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. It established a preparatory committee (Prep Com) to examine specific issues and make substantive recommendations to the General Assembly on the elements of a draft text of an ilbi under the Convention.45 The terms of reference of the Prep Com were limited to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology. The final report of the Prep Com was adopted by consensus on 21 July 2017.46 However, notably missing is any express reference to marine litter and microplastics in the final text. The report contains only two general references to pollution in Part i under the general heading of principles and approaches: the first is to the polluter pays principle and the second to the duty to not transform one type of pollution into another. The subsequent intergovernmental conference (UNGA 72/249) is equally silent on the question of marine plastic pollution, at least in express terms. The revised draft text of the President, which makes no express provision for marine plastics and microplastics, does refer to the polluter pays principle in Article 5(b), as well as the important reference to rehabilitating and restoring biodiversity and ecosystems in Article 14(e). Articles 24 and 35 address environmental impact assessment thresholds, criteria and content.47 These provide important framing obligations that could impact on the regulation of microplastics.

Marine litter and microplastics are principally the consequence of land-based activities. Environmental impact assessments have an obvious preventive role to play in addressing such pollution. The Prep Com recommendations recognize the obligation for States to conduct environmental impact assessments that would draw upon Article 206 of the losc, which requires States to conduct assessments of the potential effects of planned activities under their jurisdiction or control if they have reasonable grounds to believe that such planned activities may cause substantial pollution of or significant and harmful changes to the marine environment.48 The results are to be published or reported in accordance with Article 205 of the Convention. It would be fair to conclude that given the current knowledge of the deleterious impacts of marine litter and microplastics on the marine environment, land-based activities under the jurisdiction or control of States which risk polluting the marine environment of abnj with debris or plastics must be assessed and reported. If an ilbi were to include such a requirement, this would contribute significantly to the prevention, control and reduction of marine debris and plastics deposition into the marine environment.49 This would be enhanced if such assessments extended the application of extended producer responsibility to production processes,50 as well as the application of the 3-Rs+Return (reduce, reuse, and recycle). For example, before dredged material and sludge are dumped at sea, an assessment for marine plastics would constitute an important preventive measure. As noted in the imo report on the London Convention, ‘sewage sludge represents the final destination of most marine litter, in particular microplastics, contained in wastewater’.51 Macro litter can be removed before it is placed in disposal sites.52 However, removal of microplastics presents technical challenges.53 Once removed, this recovered plastic can be recycled. This process would be the implementation of the reduction, reuse and recycling process critical to addressing the marine litter and plastics problem.

4 Land-based Sources of Pollution

4.1 Global Instruments and Policy Initiatives

A number of global non-binding instruments have been adopted to address land-based sources of pollution in general: the Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-based Sources (Montreal Guidelines),54 which was followed by the 1995 Washington Declaration, and then the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (gpa) 1995,55 a non-binding instrument adopted by 108 States and the European Commission. The gpa provides States with guidelines to implement the commitments undertaken during the 1992 unced Conference and Agenda 21 for addressing land-based sources of pollution.56 It also aims to promote a regional and cooperative approach to addressing land-based sources of marine pollution, especially through the Regional Seas Programmes. The gpa recognizes the losc as the primary legal basis under international law for the prevention of land-based sources of marine pollution. The gpa also operates as an intergovernmental mechanism for addressing land-based sources of pollution, providing States with a forum to address collectively issues related to land-based sources of pollution. Chapter 17 of Agenda 21 specifically addressed the marine environment, and while it made no specific mention to marine litter and microplastics, it did highlight the importance of addressing land-based sources of pollution in general, as well as focusing on areas of direct relevance to the problem of marine litter.57 For example, it called for specific priority actions to be taken in relation to sewage (a source of both plastics and microplastics), reducing the emission or discharge of synthetic organic compounds that threaten to accumulate to dangerous levels in the marine environment, and pollution from shipping (dumping and ship discharges).58

In 2012, the Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris (Honolulu Strategy), was developed by the UN Environment and National Oceanic and Atmospheric Administration (noaa) Marine Debris Program, as a global effort to reduce the ecological, human health, and economic impacts of marine debris.59 It can be considered to be the first instrument to directly address marine debris. However, it is not a binding instrument, it is merely a planning tool for use by governments, providing a common frame of reference for collaboration and sharing of best practices and lessons learned, as well as a monitoring tool to measure progress across multiple programs and projects. It sets three main goals. First, to reduce the amount and impact of land-based sources of marine debris introduced into the sea. Second, to reduce the amount and impact of sea-based sources of marine debris introduced into the sea including: solid waste; lost cargo; abandoned, lost or otherwise discarded fishing gear; and abandoned vessels. Third, to reduce the amount and impact of accumulated marine debris on shorelines, in benthic habitats, and in pelagic waters. The Honolulu Strategy also includes a list of potential actions that can be implemented under each strategy in Annex 1.

While the Honolulu Strategy does not create any obligation on States to take specific measures to prevent, reduce and control or eliminate marine debris and plastics, it would meet, at least in part, the requirement under Articles 207(2) of the losc for States to adopt ‘other measures’ in addition to the requirements under Article 207(1) to adopt laws and regulations to prevent, reduce and control marine pollution, as well as Article 207(3) for States to take steps to harmonize these measures. It also helps meet the requirement of Article 194(2) to take ‘all necessary’ measures to prevent harm to other States from activities under their jurisdiction or control. Nonetheless, given the scope of the problem of marine debris, the Honolulu Strategy alone would not suffice to meet the overarching obligation of States to protect and preserve the marine environment as stated under Article 192 and Article 207(1) of the losc.

5 Marine Litter, Dumping and Vessel-Source Pollution

The losc includes provisions on dumping in the marine environment (Article 210) and vessel-sources of pollution (Article 211). Article 210 expressly mandates that States adopt laws and regulations to prevent, reduce and control pollution of the marine environment by dumping,60 and to ensure that dumping activities are subject to the permission of the competent authorities of States.61 Echoing the language of Article 207(3) for land-based sources of pollution, States are exhorted to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution acting through the competent international organizations or diplomatic conferences.62 The principal competent international organization regulating shipping activities is the International Maritime Organization (imo), the specialized agency of the United Nations for international shipping.

The imo has adopted a number of instruments over the years to address pollution of the marine environment from dumping and shipping activities. The principal instruments relevant for marine debris and plastics are the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention)63 and the International Convention for the Prevention of Pollution from Ships (marpol).64 In addition, while not an imo instrument per se, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) also concerns shipping and is of relevance to marine plastic waste.65 Each of these instruments merits separate consideration here. It should also be mentioned that the imo has undertaken an increased focus on the implementation of imo instruments, including expediting their entry into force, in its Strategic Plan.66

In 2018, the imo Marine Environmental Protection Committee (mepc) adopted the imo Action Plan to address marine plastic litter from ships, including fishing vessels. The action plan lists a number of measures that governments are to implement by 2025. The concrete measures and details were considered by mepc at its 74th session in 2019.67 Notably, the resulting action plan includes cooperation with other international organizations. This includes the United Nations Food and Agriculture Organization (fao) through the Joint fao/imo Ad Hoc Working Group on iuu Fishing and Related Matters (jwg); the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (gesamp); the UN Environment-managed Global Partnership on Marine Litter (gpml); the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea (icp); and the United Nations Environment Assembly (unea).

5.1 London Convention and Protocol

The London Convention, adopted in 1972, includes three annexes. Annex i lists specific wastes the dumping of which is prohibited, such as industrial and radioactive wastes. It also prohibits incineration at sea of industrial waste and sewage sludge. Wastes listed in Annex ii are subject to a prior special permit process, and wastes listed in Annex iii are subject to a general permit process. In 1996, the Parties adopted a new protocol to the Convention (the London Protocol), which reflected developments that had taken place especially in the post-unced period. The key change the London Protocol introduced was to prohibit the dumping of all wastes unless expressly allowed – also known as the ‘reverse listing’ approach.68

The London Convention and Protocol apply only to dumping activities from vessels, aircraft, platforms or other man-made structures at sea directly into the marine environment. Article 1 of both the London Convention and Protocol require the Contracting Parties to, inter alia, ‘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 resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea’. The last part of the obligation would clearly lay the foundation for an obligation by the Parties to adopt measures to address the pollution of the marine environment from marine debris and plastics dumped into the ocean.

The Parties to the London Convention and Protocol are taking action to address the problem of marine debris and wastes. The imo is one of the partners in the unep-led Global Partnership for Marine Litter. It is responsible for examining sea-based sources of marine litter together with fao. One of the activities undertaken by the imo was to undertake a study on marine litter in relation to the various waste streams under the London Convention and Protocol (lc/lp). The report was published by the Office of the lc/lp in 2016.69 It examines in detail the different types of debris and plastics, and their interaction and impact on the marine environment within the context of the eight waste streams covered under the lc/lp in relation to marine debris.70 As stated earlier, the report also highlighted the importance of sewage sludge as a source of marine plastics and discussed possible methodologies, as well as challenges, in making assessments of sewage for macro litter and microplastics before disposal.71 The report notes that under the existing procedure for sea disposal under the lc/lp there is no requirement to assess litter content before issuing a permit.72 Significantly, the final report includes among the principal objectives for future studies for there to be the development and agreement upon standardized procedures for extracting, identifying and quantifying plastics in sludge and sediments.73 This would mark an important development for including the potential effects of marine debris and plastics as part of environmental impact assessments in general.

5.2 marpol

The International Convention for the Prevention of Pollution from Ships is the principal convention for establishing international rules and standards to prevent, reduce and control vessel-sources of pollution.74 To date the imo has adopted six annexes to marpol that includes Annex v on the prevention of pollution by garbage from ships. The overarching obligation established under marpol Annex v is to prevent pollution of the marine environment from the discharge of harmful substances or effluents containing such substances. Annex v has broad application because it applies to all ships, including fishing vessels, unless otherwise provided.

In 2011, the UN General Assembly invited the imo to review the effectiveness of marpol Annex v on sea-based sources of marine debris. The imo completed the review within two years resulting in the revised Annex v.75 The definition of garbage under the revised Annex v includes all kinds of domestic and operational waste, all plastics, cargo residues and fishing gear. The revised Annex v also prohibits the discharge of all garbage into the sea, including all plastics except as provided in Regulations 4, 5, and 6 of the Annex.76 The revised Annex v defines plastics broadly to include synthetic ropes, synthetic fishing nets, plastic garbage bags and incinerator ashes from plastic products. In addition, if plastic is mixed with other garbage it must be treated as if it is all plastic and subject to very stringent procedures for the handling and discharge.77 The broad prohibition of the dumping of wastes that includes an expansive definition of plastic is an important step in the prevention of marine litter entering the marine environment from ships.

In addition, according to Regulation 10.2 of the revised Annex v, all ships of 100 gross tons or above or which are certified to carry 15 or more persons, and fixed or floating platforms, to prepare a garbage management plan based on guidelines.78 In 2012, the imo adopted Guidelines for the Implementation of Annex v.79 Accordingly, ships should also carry a garbage management plan.80 The 2012 Guidelines, as revised in 2017,81 also contain some innovative measures that go beyond traditional measures, including the requirement for shipping companies to encourage their suppliers to remove and reduce all packaging at an early stage82 and for ship owners and operators to minimize taking on board material that could become garbage and looking at alternatives, such as using supplies that come in bulk packaging, using supplies that come in reusable or recyclable packaging and containers, avoiding the use of disposable cups, utensils, dishes, towels and rags and other convenience items, and avoiding supplies that are packaged in plastic, unless a reusable or recyclable plastic is used.83 The Guidelines also encourage seafarers to recover persistent garbage from the sea during routine operations and retain the material for discharge at port reception facilities.84

5.3 The Basel Convention

The Convention on the Transboundary Movements of Hazardous Wastes and Their Disposal85 is the principal global instrument regulating the transport by sea of hazardous wastes. It codifies the sic utere tuo principle86 and develops the general obligations of Article 194(2) of the losc in relation to hazardous waste transport by sea and management. In doing so it seeks to minimize the transport of hazardous or other wastes by ensuring environmentally sound management of wastes,87 and reduce to a minimum the generation of hazardous wastes and other wastes at their source.88 For plastics specifically, this would mean requiring States to both manage and reduce their generation. However, currently plastic waste is only covered by the Convention if it has specific hazardous properties as listed in Annex i, such as pcbs or cadmium,89 or is considered ‘household waste’ under Annex ii of the Convention. However, as stated by the Report of the Open-ended Ad hoc Working Group of the Basel Convention, ‘in general, the broad range of plastic wastes are unlikely to be considered ‘hazardous’ according to the current definition in the Convention’.90

In 2002, the Parties to the Basel Convention adopted the Technical Guidelines for the Identification and Environmentally Sound Management of Plastic Wastes and for Their Disposal.91 The guidelines place particular emphasis on recycling. A number of other steps have been taken by the Parties, most notably the decision by cop 13 to include options under the Convention to specifically address marine litter and microplastics in the work programme of the Open-ended Working Group for the period between 2018 and 2019.92 In June 2018, Norway submitted an application for plastic waste to be added to Annex ii, Y48, which covers ‘wastes requiring special consideration.93 In 2019 the amendment was adopted and will come into effect in 2021.94 This marks an important milestone in strengthening the scope of the Basel Convention to regulate plastic waste. Once the amendment enters into force, plastic waste intended for trade will be classified as ‘other waste’ under Annex ii, Y48 or hazardous waste under Annex viii, A3210, and subject to the applicable procedures.

The Basel Convention is also implemented at the regional level in Africa and the Pacific region by the Bamako Convention95 and the Waigani Convention.96 Both conventions seek to reduce and eliminate transboundary movements of hazardous waste, to minimize the production of hazardous and toxic wastes in their respective regions and contribute also to the implementation of the Basel Convention. However, plastics are not covered under either agreement.97

6 Fishing Activities and Marine Debris and Plastics

Much fishing gear and equipment uses plastics. Synthetic fibres provide a cheap and durable material for fishing nets trawls, dredges, traps, floats, lures, hook and lines. Plastic materials are also used in boat construction, boat maintenance, hold insulation and fish crates. Plastic is also used in the storage and transport of fish.98 There are three important mechanisms that can be used to address marine plastics in fishing activities: the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Fish Stocks Agreement),99 the fao Code of Conduct for Responsible Fisheries,100 and regional fisheries management bodies.

The UN Fish Stocks Agreement is concerned with the conservation and management of straddling fish stocks and highly migratory fish stocks in areas beyond national jurisdiction and under national jurisdiction. It is an important legal instrument to address fishing-related sources of marine plastics. Among the obligations listed under Article 5(f) States are required, inter alia, to minimize catch by lost or abandoned gear. In addition, Article 5(g) requires States to protect biodiversity, a duty that could include the prevention of debris from aldfg that harms the different components of biodiversity. However, the UN Fish Stocks Agreement is limited in its scope of application to fishing activities for highly migratory and straddling fish stocks. Thus, it does not cover wholly domestic stocks or discreet high seas stocks, for which there is no counterpart under the losc to Articles 5(f) and 5(g). Moreover, the UN Fish Stocks Agreement does not use the term aldfg.

The only global instrument to specifically address aldfg is the fao Code of Conduct for Responsible Fisheries, which is a non-binding instrument. The Code of Conduct recognizes that long-term sustainable use of fisheries requires the adoption of appropriate measures based on the best scientific evidence available. This includes measures to minimize, inter alia, catch by lost or abandoned gear, and to the extent practicable, the development and use of selective, environmentally safe and cost-effective fishing gear and techniques.101 The Code also promotes waste minimization in general.102

Regional fisheries management organizations or arrangements (rfmo/a) provide the principal mechanism for implementation of the UN Fish Stocks Agreement. However, as noted above the scope of application of the UN Fish Stocks Agreement is limited to highly migratory and straddling fish stocks and thus it is not a comprehensive global instrument. Nevertheless, the existing rfmo/as cover a significant geographic marine area and different fish stocks and in this regard can provide an important legal mechanism for States to adopt measures to address aldfg, an important source of marine litter and plastics. For example, the North-East Atlantic Fisheries Commission (neafc) has adopted certain legally binding requirements. These include requiring the marking of gear so it can be traced; the requirement that fishing vessels with fixed gear have equipment on board to retrieve lost gear; and for vessels that lose gear to attempt to retrieve such gear as soon as possible and if unable to, within 24 hours report the loss to the competent authorities of its flag State. The flag State is then required to report to neafc Secretariat.103

The fao and unep have identified mitigation, preventive and curative as the three measures necessary to address aldfg.104 Preventive measures, which are considered to be the most effective, include gear markings, onboard technology to avoid loss or improve location of gear, provision of adequate and affordable port reception or collection facilities. A recent study conducted by the fao examined ten rfmo/as that employed active gillnet or trammel net fisheries with explicit mandates to monitor and/or control aldfg.105 The study showed that the vast majority of rfmo/as lacked such mandates in their constituent instruments.106 However, many rfmos have adopted some measures addressing aldfg, for example, through the prohibition of the use of certain gear and/or gear marking requirements.107 In an effort to respond to the need for strengthened regulation of aldfg, in 2016 the fao had a group of experts prepare the Draft Guidelines on the Marking of Fishing Gear. These can, at least, aid in the identification of those responsible for aldfg. The Draft Guidelines were endorsed by cofi 32 (2016).108 In 2018, the Committee on Fisheries adopted the Guidelines, which are voluntary and can also be used to tackle iuu fishing. In addition, there are efforts for coordination among different multilateral and regional organizations concerned with fishing and shipping, such as the 2019 imo mepc marine litter action plan mentioned above.109

The problem of marine litter also highlights the need for institutional coordination and collaboration between the different regional and international organizations concerned with shipping and fishing. For example, in 2019, imo mepc 74 invited the fao to make information on fishing gear marking and logging schemes available to mepc and/or to the gesamp Working Group 43, as appropriate. It called for the fao to collaborate with imo and to provide advice on the voluntary or mandatory application of marking of fishing gear, including costs associated with the implementation of a mandatory requirement and the most appropriate fao or imo instrument for potentially introducing such a requirement. Finally, it called for the fao to submit to future sessions of mepc or the ppr Sub-Committee relevant information on existing reporting mechanisms of accidentally lost or discharged fishing gear, including the challenges and benefits of such systems, as well as information that could help clarify details on losses that should be reported.110

7 Biological Diversity and Marine Debris and Plastics

7.1 Convention on Biological Diversity

The Convention on Biological Diversity (cbd) has near universal participation with 196 States Parties.111 Its main scope of application is the conservation of biological diversity. However, following criticism over its terrestrial orientation, the Conference of the Parties adopted Decision ii/10 on the Conservation and Sustainable Use of Marine and Coastal Biological Diversity (Jakarta Mandate), which established a strategy for conservation and sustainable use of marine and coastal ecosystems.112 While the cbd does not directly address the pollution of the marine environment, nevertheless this has been addressed under Aichi Biodiversity Target 8, whereby Parties committed to have pollution brought to levels that are not detrimental to ecosystem function and biodiversity by 2020. Aichi Target 8 makes no express mention of marine litter, but clearly as a source of pollution it should be included within its scope. Moreover, State Parties to the cbd have recognized the threat posed by marine debris to various marine species and adopted several relevant decisions.113

The most important contribution of the cbd to concerns about plastic pollution is cop xiii/10 (2016): Addressing impacts of marine debris and anthropogenic underwater noise on marine and coastal biodiversity.114 This Decision urges Parties, and encourages other governments and relevant international organizations to develop and implement measures, policies and instruments to prevent the discard, disposal, loss or abandonment of any persistent, manufactured or processed solid material in the marine and coastal environment.115 The Decision includes voluntary guidance on ‘preventing and mitigating the impacts of marine debris on marine and coastal biodiversity and habitats’.116 The guidance calls for a focus on preventing the discard, disposal, loss or abandonment of any persistent manufactured or processed solid material in the upstream and marine and coastal environment. Furthermore, in relation to fishing activities, the guidance calls for the Parties to ‘[i]dentify options to address key waste items from the fishing industry and aquaculture that could contribute to marine debris, and implement activities, including pilot projects, as appropriate, and good practices, such as deposit schemes, voluntary agreements and end-of-life recovery, in collaboration with the Food and Agriculture Organization of the United Nations and the United Nations Environment Programme’.117 While the decision itself is not legally binding, nonetheless, it does raise a question concerning the linkage between the obligations under the losc to protect and preserve the marine environment and the cbd. For example, does cop xiii/10 constitute a necessary measure under Article 194(1) of the losc118 to prevent, control and reduce pollution? The standards for assessing what constitutes a ‘necessary measure’ have not been addressed. However, questions can be raised whether a decision adopted by a universally accepted instrument would constitute such a necessary measure, or even be part of the State’s due diligence obligation under the losc.

7.2 Convention on the Conservation of Migratory Species of Wild Animals

The Convention on the Conservation of Migratory Species (cms)119 seeks to conserve migratory species by ensuring that Contracting Parties take the necessary action, individually and collectively, to avoid species becoming endangered. A key principle of the cms is for ‘Range States’ to adopt either individually or in co-operation with other States necessary conservation measures for such species, especially those whose conservation status is unfavourable.120 While the cms does not have an express pollution-prevention mandate, it can address marine debris and plastics indirectly through conservation measures. In relation to marine debris, the Parties adopted two resolutions: Resolution 10.4121 and Resolution 11.30.122 Resolution 10.4 includes a recommendation that Parties develop and implement their own national plans of action which should address the negative impacts of marine debris in waters within their jurisdiction.123 Resolution 11.30 includes a call to Parties ‘to incorporate marine debris targets when developing marine debris management strategies, including targets relating directly to impacts on migratory species, and to ensure that any marine debris management strategies plan for and carry out evaluation’.124 However, these resolutions do not establish binding commitments. They merely encourage or recommend specific measures for Parties to adopt to address knowledge gaps. This includes measures relating to the impacts of debris on marine species, best practices on commercial vessels, and public awareness campaigns.125

Other measures taken by the Parties include species-specific action plans. For example, in 2014 the Parties adopted the Single Species Action Plan for the Loggerhead Turtle (Caretta caretta) in the South Pacific Ocean with the objective of ensuring a favourable conservation status of the loggerhead turtle in the South Pacific Ocean.126 Marine debris is included as one of the threats to the turtles, and rated as a high risk in the accompanying risk matrix.127 An action plan for whales and dolphins was adopted for 2013–2017.128 In addition, the Strategic Plan for Migratory Species 2015–2023 includes Goal 1 on addressing the underlying causes of decline of migratory species by mainstreaming relevant conservation and sustainable use priorities across government and society.129 In pursuit of this goal, Target 7 seeks to reduce the multiple anthropogenic pressures ‘to levels that are not detrimental to the conservation of migratory species or to the functioning, integrity, ecological connectivity and resilience of their habitats’.130 The Strategic Plan includes marine debris among the multiple anthropogenic pressures.

It should be noted that the resolutions and Strategic Plan are hortatory and do not impose legally binding obligations on the State Parties. Nonetheless, they lay the foundation for furthering scientific knowledge, identifying gaps and for taking future cooperative actions by States. This complements/gives effect to the losc. Article 65 of the losc on marine mammals provides that ‘States shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study’. The obligation to cooperate for the conservation of marine mammals is clearly stated and the cms would provide one of the instruments through which to fulfil this obligation.

8 Regional Approaches to Addressing Marine Debris and Plastics

In addition to steps taken at the global level, there is a need for regional, national and local responses, as evidenced by the progressive evolution of Regional Action Plans on marine litter, as well as the linkages with integrated coastal zone management (iczm). This in turn facilitates the development of environmental targets, compliance mechanisms & regional awareness raising. Some key regional measures are considered next.

8.1 UN Environment Regional Sea Programme

The unep Regional Seas Programme consists of 18 Regional Seas programmes involving some 143 countries in total. The Programme was established in 1974 with the principal objective of addressing accelerating degradation of the marine and coastal environment.131 The governance structures differ between the Regional Seas programmes. While most of the Regional Seas programmes have binding conventions, others have only adopted action plans. Moreover, not all have adopted protocols covering activities relevant for addressing marine litter and microplastics, such as dumping and land-based sources of pollution.

Addressing marine litter and microplastics requires measures to address land-based sources of pollution. In this regard there are important differences among the existing Regional Seas programmes that have adopted protocols on land-based source of pollution. Vinogradov distinguishes between first- and second-generation protocols for land-based sources of pollution.132 The first generation of regional protocols for land-based sources of pollution are narrow in their scope of application. They are referred to as ‘shoreline’ protocols because they do not cover inland activities within the drainage or catchment area that discharges into the sea. They are restricted to coastal States and do not include sources or activities of non-coastal States.133 Examples of shoreline protocols include the 1992 Protocol on Protection of the Black Sea Marine Environment against Pollution from Land Based Sources,134 and the 1983 Protocol for the Protection of the South-East Pacific against Pollution from Land-Based Sources.135 By contrast the second-generation protocols have a broader inland and basin-wide approach that may encompass inland waters and rivers, key sources of marine litter and plastics. Further, they include activities and not only sources of land-based pollution. Examples of such protocols include the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities (revised),136 the Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities,137 the Additional Protocol to the Abidjan Convention Concerning Cooperation in the Protection and Development of Marine and Coastal Environment from Land-based Sources and Activities in the Western, Central and Southern African Region,138 the Protocol Concerning Pollution from Land-Based Sources and Activities for the Wider Caribbean Region,139 the revised Protocol on the Protection of the Marine Environment of the Black Sea from Land-Based Sources and Activities,140 the Protocol Concerning the Protection of the Marine Environment from Land-Based Activities in the Red Sea and Gulf of Aden,141 and the Protocol for the Protection of the Caspian Sea against Pollution from Land-Based Sources and Activities.142 helcom Annex iii (lbs) and Annex i of ospar provide for a broader geographic scope for land-based protocols than the shoreline scope by first generation lbs protocols.

In addition, several of the Regional Seas programmes have adopted action plans.143 However, with the exception of the Mediterranean Sea programme, these action plans are not legally binding. They are nonetheless important tools. One key aspect of these action plans is the adoption of specific actions and targets. Moreover, these action plans have adopted a different set of principles and approaches that are not found in the regional seas protocols, such as ‘3-Rs+Return’ (Reduce, Reuse, Recycle and Return).144 Some of the action plans include concepts central to addressing marine litter and plastics, notably extended producer responsibility (epr),145 the circular economy,146 the use of economic incentives for reduction of the use of plastics, and cooperation with industry. These concepts are not expressly provided for in the protocols, but are important in order to create the important linkage with the full lifecycle of plastics production and use that takes place inland.147

8.2 European Marine Strategy Framework Directive

Another regional initiative of importance for addressing marine litter and plastics is the Marine Strategy Framework Directive (msfd) adopted by the European Union in 2008.148 The objective of the msfd is to achieve ‘good environmental status’ (ges) of European seas by 2020.149 Members States are to do this by developing marine strategies and action plans in accordance with Article 5. The implementation of the msfd can be roughly divided into two phases: first, the preparation phase, and, second, the implementation phase achieved through programmes and measures. The msfd applies to the four marine regions of the EU: the Baltic Sea, the North-East Atlantic Ocean, the Mediterranean Sea, and the Black Sea. Given the existing regional governance structure under the UN Environment, the member States are required to coordinate and cooperate with the relevant Regional Seas Programme.150

The msfd includes eleven qualitative descriptors for determining ges.151 Descriptor 10 on marine litter (properties and quantities of marine litter do not cause harm to the coastal and marine environment) expressly applies to marine litter and plastics. A guidance document was also developed by the msfd Subgroup on marine litter which expressly addresses marine plastics and microplastics.152 On 16 January 2018, the EU Commission marked an important milestone by adopting the European Strategy for Plastics in a Circular Economy.153 The strategy provides a far-reaching and transformational vision for ‘Europe’s new plastics economy’ as one with a ‘smart, innovative and sustainable plastics industry, where design and production fully respects the needs of reuse, repair, and recycling, brings growth and jobs to Europe and helps cut the EU’s greenhouse gas emissions and dependence on imported fossil fuels’.154 It also includes specific targets such as, inter alia, by 2030 (1) plastics packaging placed on the EU market to be either reusable or recycled in a cost-effective manner; (2) for the recycling of more than 50 percent of the plastic waste generated in Europe; and a fourfold increase in sorting and recycling capacity from that of 2015.155 In addition, in 2018 the European Parliament and the Council of the European Union reached a provisional political agreement on new measures to address marine litter at its source and specifically targeting the 10 plastic products most often found on our beaches as well as abandoned fishing gear.156

9 Conclusion

The problem of marine litter and microplastics has taken on an urgency requiring immediate action. It is a problem that is principally caused by land-based activities with effects on the marine environment and marine life. As discussed in this chapter, there is a patchwork of international legal instruments, hard and soft, which either indirectly or directly address marine litter and microplastics, and which provide indications of what further steps may be taken. The losc, which is the principal global instrument for the ocean and for the protection of the marine environment, provides clear obligations for States to prevent, control and reduce pollution of the marine environment. This clearly covers marine litter and microplastics. However, while the losc lays out State obligations, and several international decisions and advisory opinions have articulated the concomitant due diligence obligations of States, the losc does not provide the detail for implementation, nor does it provide the mechanisms for collective action.

As discussed above, there are a number of other instruments that address sectoral activities involving the use of plastics, such as fishing under the Fish Stocks Agreement and the fao Code of Conduct for Responsible Fisheries, dumping activities under the lc/lp, and transport of hazardous wastes under the Basel Convention. Additionally, there are some frameworks such as the cbd and cms, which may assist with preventing or mitigating the impact of plastics on biodiversity or the protection of specific species. These are further complemented by regional instruments, in particular those under the UN Environment Regional Seas Programme and the European Union msfd. What is lacking, however, is a holistic and collective approach that will directly address the principal activities causing marine debris and plastics pollution.

A legal assessment prepared by the UN Environment identified a number of gaps in the international legal framework and examined various options for addressing them.157 These options include: to simply maintain the status quo, to revise and strengthen the existing framework or to adopt a new international legally binding instrument that specifically addresses marine litter and microplastics.158 It may very well be that no single option suffices but that the latter two options need to be implemented. As outlined in this chapter there are a number of existing international instruments that provide opportunities to address marine litter and microplastics. However, each has its own limitations either in scope or geography. They do not provide the necessary holistic approach, such as that advanced by the concept of the circular economy that addresses the full life cycle of plastics. In this regard, a new instrument could address such gaps and provide a more focused approach. The authors of the UN Environment Programme assessment offer up as an example model the successful approach of the Montreal Protocol159 to the Vienna Convention on the Protection of the Ozone Layer.160 The Montreal Protocol directly tackled production of ozone depleting substances. It systematically phased-out ozone depleting substances from production and use while providing for substitute alternative substances. Such a model could be applied to marine plastics litter and microplastics.161 A similar approach could be adopted for substances that make-up plastics, addressing the problem from the source and on a global basis. These are the options to be discussed and decided by the Ad Hoc Open-Ended Expert Group established under the unea-3 resolution on marine litter and plastics with a mandate ‘to further examine the barriers to, and options for, combating marine plastic litter and microplastics from all sources, especially land based sources’.162

The Ad Hoc Open-Ended Expert Group held its first meeting in 29–31 May 2018 in Nairobi and its second meeting in Geneva 3-4 December 2018. The Ad Hoc Open-Ended Expert Group is examining the possible options including development of a new instrument.163 A new instrument has advantages and disadvantages.164 An obvious advantage is that it could provide a clear set of obligations, targets, areas of cooperation and a possible mechanism to address the problem of marine litter and plastics in areas that are not covered by other instruments, principally land-based sources, in particular in production and consumption processes. More importantly, perhaps, is that a new instrument would be the most effective way to develop the circular economy approach at a global level. The European Union has initiated such an approach in its own strategy,165 but there is a need for a global approach that follows a common set of principles, approaches and goals. However, one of the problems with adopting a global instrument concerns the time needed to negotiate a new instrument, not to mention associated costs of implementing it. Furthermore, even if a new instrument is adopted, the process of ratification and entry into force can also be time-consuming. But this is the same problem with the option of simply strengthening existing instruments, especially if amendments are required.

Marine litter and microplastics are at the frontier of international law where the traditional boundaries of land and sea need to be addressed holistically and through collective action of the international community. It is a problem that signals the limits of the ability of international law to address threats to the marine environment through sectoral or thematically limited approaches. The losc, which marked a new frontier in international law, continues to provide the overarching framework upon which to build and strengthen the international legal framework to address the marine litter and microplastics crisis, but its provisions require supplementation. A simple solution to a complex problem that has evolved over decades cannot be expected. The more realistic approach would seem to be a combination of building upon existing legal frameworks, such as the Basel Convention and the regional seas frameworks and to develop an international legally binding instrument that would fill in the gaps of the existing fragmented legal framework.

1

This is known as the ‘Great Pacific Garbage Patch’, see US National Oceanic and Atmospheric Administration, ‘How Big is the Great Pacific Garbage Patch? Science vs Myth’ (27 February 2019), https://response.restoration.noaa.gov/about/media/how-big-great-pacific-garbage-patch-science-vs-myth.html (all websites accessed 6 October 2020 unless otherwise noted).

2

United Nations Environment Programme (unep), Marine Plastic Debris and Microplastics: Global Lessons and Research to Inspire Action and Guide Policy Change (unep, 2016), 69, https://wedocs.unep.org/handle/20.500.11822/7720; see also, EJ Fjelstad, ‘The Ghosts of Fishing Nets Past: A Proposal for Regulating Derelict Synthetic Fishing Nets’ (1988) 63 Washington and Lee Law Review 677–700; PE Hagen, ‘International Community Confronts Plastics Polluting from Ships: MARPOL Annex v and the Problem That Won’t Go Away’ (1990) 5 American University Journal of International Law and Policy 425–496; GE Lang, ‘Plastics, the Marine Menace: Causes and Cures’ (1990) 5 Journal of Land Use and Environmental Law 729–752; CC Joyner and S Frew, ‘Plastic Pollution in the Marine Environment’ (1991) 22 Ocean Development and International Law 33–70.

3

M Haward, ‘Plastic Pollution of the World’s Seas and Oceans as a Contemporary Challenge in Ocean Governance’ (2018) 9(667) Nature Communications, https://www.nature.com/articles/s41467-018-03104-3.

4

Available at https://www.iucnredlist.org/.

5

J Wang (Lead member), K Kiho, D Ofiara, Yi Zhao, A Bera, R Lohmann, MC Baker (contributors), ‘Chapter 25: Marine Debris’ in L Inniss and A Simcock (Joint Coordinators), The First Global Integrated Oceans Assessment: World Ocean Assessment I (United Nations, 2016), https://www.un.org/depts/los/global_reporting/WOA_RPROC/Chapter_25.pdf.

6

See United Nations General Assembly (unga), Resolution 70/235: Oceans and the law of the sea, adopted 23 December 2015, where the General Assembly expressed concern regarding the negative effects of marine debris and microplastics.

7

L Inniss and A Simcock (Joint Coordinators), The First Global Integrated Oceans Assessment: World Ocean Assessment I (United Nations, 2016) 12, http://www.un.org/Depts/los/global_reporting/WOA_RegProcess.htm.

8

United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea Seventeenth Meeting 13–17 June 2016. Presentations available at http://www.un.org/depts/los/consultative_process/documents/ICP-17_Panel_for_website.pdf.

9

Sustainable Development Goal 14 includes the target to prevent and significantly reduce marine pollution of all kinds, in particular marine litter and nutrient pollution by 2025.

10

United Nations Environment Assembly (unea), Resolution 1/6: Marine plastic debris and microplastics (27 June 2014); unea, Resolution 2/11: Marine plastic litter and microplastic (27 May 2016); unea, Draft resolution on marine litter and microplastics, UN Doc unep/ea.3/L.20 (5 December 2017); unea, Resolution 3/7: Marine Litter and Microplastics, UN Doc unep/ea.3/Res.7 (30 January 2018).

11

Doc unep/ea.3/L.20, ibid; see also, unep, Combating marine plastic litter and microplastics: An assessment of the effectiveness of relevant international, regional and sub-regional governance strategies and approaches, UN Doc unep/ea.3/inf/5 (15 February 2018) (the present author contributed to this report).

12

P Villarubia-Gomez, SE Cornell and J Fabres, ‘Marine Plastic Pollution as a Planetary Boundary Threat: The Drifting Piece in the Sustainability Puzzle’ (2018) 96 Marine Policy 213–220.

13

M Gold, K Mika, C Horowitz, M Herzog, and L Leitner, Stemming the Tide of Plastic Marine Litter: A Global Action Agenda, Pritzker Briefs No 5 (Emmett Center on Climate Change and the Environment, ucla, October 2013), https://escholarship.org/uc/item/6j74k1j3; N Simon and ML Schulte, Stopping Global Plastic Pollution: The Case for an International Convention, Publication Series Ecology, vol 43(Heinrich Böll Foundation, 2017), https://www.boell.de/sites/default/files/stopping-global-plastic-pollution.pdf; K Raubenheimer and A McIlgorm, ‘Is the Montreal Protocol a Model that Can Help Solve the Global Marine Plastic Debris Problem?’ (2017) 81 Marine Policy 322–329; P Dauvergne, ‘Why is the Global Governance of Plastic Failing the Oceans?’ (2018) 51 Global Environmental Change 22–31.

14

This chapter is not an exhaustive survey of all instruments with possible application to addressing pollution of the marine environment by marine litter and microplastics.

15

unep, Marine Plastic Debris and Microplastics, above (n 2), 26.

16

Ibid.

17

unep, Biodegradable Plastics & Marine Litter: Misconceptions, Concerns and Impacts on Marine Environments (unep, 2015), https://wedocs.unep.org/bitstream/handle/20.500.11822/7468/-Biodegradable_Plastics_and_Marine_Litter_Misconceptions,_concerns_and_impacts_on_marine_environments-2015BiodegradablePlasticsAndMarineLitter.pdf.pdf?sequence=3&isAllowed=y.

18

JM Fleet, D Kinsey, S Nilsson et al., Identifying Sources of Marine Litter. MSFD GES TG Marine Litter Thematic Report (jrc Technical Report, 2016), http://ec.europa.eu/environment/marine/good-environmental-status/descriptor-10/pdf/MSFD_identifying_sources_of_marine_litter.pdf; see also, PJ Kershaw and CM Rochman (eds), Sources, Fate and Effects of Microplastics in the Marine Environment: Part Two of a Global Assessment, gesamp Reports and Studies No. 93 (imo/fao/unesco-ioc/unido/wmo/iaea/un/unep/undp Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (gesamp), 2016) 25.

19

S Knapton, ‘Seafood Eaters Ingest Up to 11,000 Tiny Pieces of Plastic Every Year, Study Shows’ The Daily Telegraph (25 January 2017), https://www.telegraph.co.uk/science/2017/01/24/seafood-eaters-ingest-11000-tiny-pieces-plastic-/every-year-study/.

20

Wang et al., above (n 5).

21

See Vince and Hardesty, who argue that a holistic, integrated approach that utilizes scientific expertise, community participation, and market-based strategies is required for the global plastic pollution problem. J Vince and BD Hardesty, ‘Plastic Pollution Challenges in Marine and Coastal Environments: From Local to Global Governance’ (2016) 25(1) Restoration Ecology 123–128.

22

833 unts 3.

23

A Trouwborst, ‘Managing Marine Litter: Exploring the Evolving Role of International and European Law in Confronting a Persistent Environmental Problem’ (2011) 27 Utrecht Journal of International and European Law 4–18; M Gold, K Mika, C Horowitz and M Herzog, ‘Stemming the Tide of Plastic Litter: A Global Action Agenda’ (2014) 27 Tulane Environmental Law Journal 165–204.

24

CC Joyner and S Frew, ‘Plastic Pollution in the Marine Environment’ (1991) 22(1) Ocean Development & International Law 33–69.

25

See Wang et al., above (n 5), 34; see also, F Thevenon, ‘Impacts of Plastics on Marine Organisms’ in C Carroll and J Sousa (eds), Plastic Debris in the Ocean: The Characterization of Marine Plastics and their Environmental Impacts, Situation Analysis Report (iucn, 2014) 27–33; KL Law, ‘Plastics in the Marine Environment’ (2017) 9 Annual Review of Marine Science 205–229 (see Table 1: Peer-reviewed studies demonstrating evidence of impacts of plastic marine debris, at 217).

26

unep and grid-Arendal, Marine Litter Vital Graphics (unep and grid-Arendal, 2016) 37–39, https://wedocs.unep.org/bitstream/handle/20.500.11822/9798/-Marine_litter_Vital_graphics-2016MarineLitterVG.pdf.pdf?isAllowed=y&sequence=3.

27

The maxim sic utere tuo ut alienum non laedas (use your own property in such a manner as not to injure that of another) is rooted in Roman law. See J Brunnée, ‘Sic utere tuo ut alienum non laedas’ Max Planck Encyclopedia of Public International Law (2010).

28

The principle is commonly linked to the famous Trail Smelter arbitration between Canada and United States. Trail Smelter Arbitration (United States v Canada), (1941) iii riaa 1905. The no harm principle has been adopted in a number of instruments, including the 1972 Stockholm Declaration (Principle 21) and the 1992 Rio Declaration (Principle 6).

29

Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, (2010) icj Reports, p 14, para 164; Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, 1 February 2011, itlos Reports 2011, p 10 (2011 Advisory Opinion); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Judgment, (2015) icj Reports, p 665; Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (srfc), Advisory Opinion, 2 April 2015, itlos Reports 2015, p 4 (srfc Advisory Opinion).

30

F Galgani, G Hanke, T Maes, ‘Global Distribution, Composition and Abundance of Marine Litter’ in M Bergmann, L Gutow and M Klages (eds), Marine Anthropogenic Litter (Springer, 2015) 29–56.

31

F Thevenon, C Carroll and J Sousa (eds), Plastic Debris in the Ocean: The Characterization of Marine Plastics and their Environmental Impacts, Situation Analysis Report (iucn, 2014) 12, https://portals.iucn.org/library/sites/library/files/documents/2014-067.pdf.

32

P Patel, ‘Stemming the Plastic Tide: 10 Rivers Contribute Most of the Plastic in the Oceans’ Scientific American (1 February 2018), https://www.scientificamerican.com/article/stemming-the-plastic-tide-10-rivers-contribute-most-of-the-plastic-in-the-oceans/; see also, C Schmidt, T Krauth and S Wagner, ‘Export of Plastic Debris by Rivers into the Sea’ (2017) 51 Environmental Science & Technology 12246–12253.

33

Article 207(4) provides that ‘States, acting especially through competent international organizations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources, taking into account characteristic regional features, the economic capacity of developing States and their need for economic development. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary’.

34

The mox Plant Case (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001, itlos Reports 2001, p 95.

35

Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), Provisional Measures, Order of 8 October 2003, itlos Reports 2003, p 10.

36

ML McConnell and E Gold, ‘The Modern Law of the Sea: Framework for the Protection and Preservation of the Marine Environment?’ (1991) 23 Case Western Reserve Journal of International Law 83–105.

37

Pulp Mills case, above (n 29), para 197.

38

Ibid.

39

2011 Advisory Opinion, above (n 29), 10.

40

srfc Advisory Opinion, above (n 29).

41

South China Sea Arbitration (The Republic of Philippines v The People’s Republic of China), Award, 12 July 2016, pca Case No 2013-19.

42

Ibid para 941.

43

Ibid para 944 (citing srfc Advisory Opinion, above (n 29), paras 118–136).

44

K Gjerde, ‘Perspectives on a Developing Regime for Marine Biodiversity Conservation and Sustainable Use beyond National Jurisdiction’ in HN Scheiber, N Oral and M-S Kwon (eds.), Ocean Law Debates: The 50-Year Legacy and Emerging Issues for the Years Ahead (Brill, 2018) 354–380; G Wright, K Gjerde and J Rochette, The Long and Winding Road: negotiating a high seas treaty (iddri, 2018), https://www.iddri.org/en/publications-and-events/study/long-and-winding-road-negotiating-high-seas-treaty.

45

unga, Resolution 69/292: Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, adopted 19 June 2015. Hereafter, abnj will refer to areas beyond national jurisdiction.

46

unga, Report of the Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/ac.287/2017/pc.4/2 (31 July 2017).

47

unga, Draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/conf.232/2020/3 (18 November 2019).

48

See generally, A Oude Elferink, ‘Environmental Impact Assessment in Areas beyond National Jurisdiction’ (2012) 27 International Journal of Marine and Coastal Law 449–480; R Warner, ‘Oceans beyond Boundaries: Environmental Assessment Frameworks’ (2012) 27 International Journal of Marine and Coastal Law 481–500.

49

See also, R Tiller and E Nyman, ‘Ocean Plastics and the BBNJ Treaty: Is Plastic Frightening Enough to Insert Itself into the BBNJ Treaty, or Do We Need to Wait for a Treaty of Its Own?’ (2018) 8(4) Journal of Environmental Studies and Sciences 411–415. They argue that the bbnj Treaty could incorporate elements for addressing marine plastics and microplastics and could be a vehicle of fast action for global plastic management.

50

See below (n 145).

51

International Maritime Organization (imo), Review of the Current State of Knowledge Regarding Marine Litter in Wastes Dumped at Sea Under the London Convention and Protocol: Final Report (imo, 2016) 28, http://www.imo.org/en/OurWork/Environment/LCLP/newandemergingissues/Documents/Marine%20litter%20review%20for%20publication%20April%202016_final_ebook_version.pdf.

52

Ibid 24.

53

Ibid.

54

Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-Based Sources (Montreal Guidelines for lbs), unep Governing Council Decision 13/18/ii (24 May 1985).

55

Adopted 3 November 1995, unep Doc (oca)/lba/ig.2/7 (5 December 1995).

56

Ibid 14–15.

57

unga, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 1–14 June 1992, UN Doc A/conf.151/26/Rev.1 (Vo1 i) (12 August 1992), Annex ii, paras 17.18, 17.28.

58

Ibid.

59

Fifth International Marine Debris Conference (5imdc) held in Honolulu, Hawaii, 20–25 March 2011.

60

losc, above (n 22), Art 210(1).

61

Ibid Art 210(3).

62

Ibid Art 207(4).

63

1046 unts 120.

64

As amended by the Protocol of 1978, 1340 unts 61.

65

Adopted 22 March 1989, 1673 unts 57.

66

See further, imo, Resolution A.1110(30): Strategic Plan for the Organization for the Six-year Period 2018 to 2023, adopted 6 December 2017.

67

imo, Resolution mepc.310(73): Action Plan to Address Marine Plastic Litter from Ships, adopted 26 October 2018.

68

1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol), adopted 7 November 1996, in force 24 March 2006, [2006] ats 11.

69

imo, above (n 51).

70

These waste streams are: a) dredged materials; b) sewage sludge; c) fish waste, or material resulting from industrial fish processing operations; d) vessels and platforms or other man-made structures at sea; e) inert or inorganic geological material; f) organic matter of natural origin; g) bulky items comprising primarily iron, steel, concrete or non-harmful materials; and h) carbon dioxide streams from carbon dioxide capture processes for sequestration. Ibid 7.

71

Above (n 69) section 3.1. See also, A Stöfen-O’Brien and S Werner, ‘Waste/Litter and Sewage Management’ in M Solomon and T Markus (eds), Handbook on Marine Environmental Protection (Springer, 2018) 755–771.

72

imo, above (n 51), 7.

73

Ibid 29.

74

Above (n 64).

75

Regulations for the Prevention of Pollution by Garbage from Ships, imo Resolution mepc.201(62), 15 July 2011, in force 1 January 2013 (marpol Annex v).

76

Generally, such discharges are related to food waste, cargo residues, cleaning agents and additives and animal carcasses.

77

imo, Resolution mepc.219(63): 2012 Guidelines for the Implementation of marpol Annex v, adopted 2 March 2012), para 2.4.6.

78

marpol Annex v (n 75); imo, Resolution mepc.220(63): 2012 Guidelines for the development of garbage management plans, adopted 2 March 2012, para 1.1.1.

79

Above (n 77).

80

Guidelines for the Development of Garbage Management Plan (n 78), s 1.1.

81

imo, Resolution mepc.295(71): 2017 Guidelines for the Implementation of marpol Annex v, adopted 7 July 2017.

82

Ibid para 2.1.1.

83

Ibid para 2.1.2.

84

Ibid para 2.1.3.

85

Above (n 5).

86

See above (n 27).

87

Defined in Article 8 of the Basel Convention, above (n 65), to mean ‘taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes’.

88

Ibid Art 2(a).

89

See unep, Minimizing Hazardous Wastes: A Simplified Guide to the Basel Convention (unep, 2002) 4–5.

90

unep, Report on possible options available under the Basel Convention to further address marine plastic litter and microplastics, UN Doc unep/chw/oewg.11/inf/22 (8 May 2018), Annex, para 25.

91

unep, Technical Guidelines for the Identification and Environmentally Sound Management of Plastic Wastes and for Their Disposal, UN Doc unep/chw/6/21 (23 August 2002), Annex.

92

unep, Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal on the work of its thirteenth meeting, UN Doc unep/chw.13/28 (16 August 2017), Annex to decision bc-13/17, Topic ii.E.

93

unep, Report of the Open-ended Working Group of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal on the work of its eleventh meeting, UN Doc unep/chw/oewg.11/15 (2 October 2018), para 62. See European Union Network for the Implementation and Enforcement of Environmental Law, ‘Basel Amendment Proposed by Norway to Cover Scrap Plastic’ (3 August 2018), https://www.impel.eu/basel-amendment-proposed-by-norway-to-cover-scrap-plastic/. Norway also requested the removal of solid plastic waste from Annex ix, B3010, of the Convention. Ibid. See also, L Green, ‘Global Marine Plastic Waste and the Newly Recommended Amendment to the Basel Convention: A Bandage or a Bandaid?’ EJIL Talk! (12 September 2018), https://www.ejiltalk.org/author/lgreen/.

94

unep, Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal on the work of its fourteenth meeting, UN Doc unep/chw.14/28 (11 May 2019), Decision bc-14/12: Amendments to Annexes ii, viii and ix to the Basel Convention.

95

1991 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, 2101 unts 177.

96

Adopted 16 September 1995, 2161 unts 91.

97

unep, Combating marine plastic litter and microplastics, above (n 11), 38.

98

A Lusher, P Hollman and J Mendoza-Hill, Microplastics in Fisheries and Aquaculture: Status of Knowledge on Their Occurrence and Implications for Aquatic Organisms and Food Safety, fao Fisheries and Aquaculture Technical Paper 615 (fao, 2017) 22–24, http://www.fao.org/3/a-i7677e.pdf.

99

Adopted 4 August 1995, in force 11 December 2001, 2167 unts 3.

100

Adopted 31 October 1995, fao Doc 95/20/Rev/1 (1998).

101

Ibid para 7.2.2.g.

102

Ibid paras 6.6 and 8.

103

See neafc Scheme of Control and Enforcement, Chapter ii, http://www.neafc.org/scheme/Chapter2.

104

G Macfadyen, T Huntington and R Cappell, Abandoned, Lost or Otherwise Discarded Fishing Gear, fao Technical Paper/unep Regional Seas Report and Studies No 185 (fao, 2009).

105

E Gilman, F Chopin, P Suuronen and B Kuemlangan, Abandoned, Lost or Otherwise Discarded Gillnets and Trammel Nets: Methods to Estimate Ghost Fishing Mortality, and the Status of Regional Monitoring and Management, fao Fisheries and Aquaculture Technical Paper No 600 (fao, 2016), see Table 1, http://www.fao.org/3/a-i5051e.pdf. Those rfmo/As excluded from the study were: the Commission for the Conservation of Antarctic Marine Living Resources, the Commission for the Conservation of Southern Bluefin Tuna, the Inter-American Tropical Tuna Commission, the International Pacific Halibut Commission, the International Whaling Commission, the Northwest Atlantic Fisheries Organization, the North-East Atlantic Fisheries Commission, the South East Atlantic Fisheries Organisation and the South Pacific Regional Fisheries Management Organisation.

106

Ibid 39–53.

107

For a very detailed assessment of 19 fisheries bodies, see E Gilman, ‘Status of International Monitoring and Management of Abandoned, Lost and Discarded Fishing Gear and Ghost Fishing’ (2015) 60 Marine Policy 225–239.

108

fao, Report of the Expert consultation on the Marking of Fishing Gear, Rome, Italy, 4–7 April 2016, fao Fisheries and Aquaculture Report No 1157 (fao, 2016), http://www.fao.org/3/a-i5729e.pdf.

109

Above p 297.

110

See imo, ‘Marine Environment Protection Committee (mepc), 74th session, 13–17 May 2019’, s 4, http://www.imo.org/en/MediaCentre/MeetingSummaries/MEPC/Pages/MEPC-74th-session.aspx.

111

Adopted 5 June 1992, 1760 unts 69 (cbd).

112

cbd/cop/dec/ii/10: Conservation and sustainable use of marine and coastal biological diversity (1995).

113

See cbd/cop/dec/xi/18: Marine and coastal biodiversity (2012) paras 27–27, cbd/cop/dec/vii/5: Marine and coastal diversity (2004) Annex ii, para 9.

114

cbd/cop/dec/xiii/10: Addressing impacts of marine debris and anthropogenic underwater noise on marine and coastal biodiversity (2016).

115

Ibid para 8.

116

Ibid Annex.

117

Ibid, Annex, para 9(b).

118

Article 194(1) provides: States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection.

119

Adopted 23 June 1979, 1651 unts 333.

120

Ibid Art ii(1).

121

cms Resolution 10.4 on Marine Debris (2012).

122

cms Resolution 11.30 on Management of Marine Debris (2015).

123

cms Resolution 10.4, above (n 121), para 5.

124

cms Resolution 11.30, above (n 122), para 8.

125

In addition, three reports were published in 2014 relating to marine debris. See cms, Report 1: Migratory Species, Marine Debris and Its Management, UN Doc unep/cms/cop11/Inf.27 (16 August 2014), cms, Report ii: Marine Debris and Commercial Marine Vessel Best Practice, UN Doc unep/cms/cop11/Inf.28 (16 August 2014), and cms, Report iii: Marine Debris Public Awareness and Education Campaigns, UN Doc unep/cms/cop11/Inf.29 (16 August 2014).

126

unep/cms, Single Species Action Plan for the Loggerhead Turtle (Caretta caretta) in the South Pacific Ocean, UN Doc unep/cms/cop11/Doc.23.2.2/Rev.1/Annex 2 (7 November 2014), https://www.cms.int/sites/default/files/document/COP11_Doc_23_2_2_Rev1_Annex _2_SSAP_Loggerhead_Turtle_E.pdf.

127

Ibid para 2.8.

128

See cms, Annex 2 to the mou for the Conservation of Cetaceans and their Habitats in the Pacific Islands Region, Whale and Dolphin Action Plan 2013–2017, http://www.cms.int/sites/default/files/document/PIC_ActionPlan_2013-2017_E.pdf.

129

unep/cms/Resolution 11.2: Strategic Plan for Migratory Species 2015–2013, adopted at the 11th cms cop, November 2014, Annex 1, https://www.cms.int/sites/default/files/document/Res_11_02_Strategic_Plan_for_MS_2015_2023_E_0.pdf.

130

Ibid 11.

131

See unep, ‘Why Does Working with Regional Seas Matter?’, https://www.unep.org/explore-topics/oceans-seas/what-we-do/working-regional-seas/why-does -working-regional-seas-matter.

132

S Vinogradov, ‘Marine Pollution via Transboundary Watercourses: An Interface of the Shoreline and River-Basin Regimes in the Wider Black Sea Region’ (2007) 22 International Journal of Marine and Coastal Law 585–620. For a detailed over view of marine litter and plastics and unep Regional Seas Programme, see unep, Combating marine plastic litter and microplastics, above (n 11), 58–74; K Raubenheimer, A McIlgorm and N Oral, ‘Towards an Improved International Framework to Govern the Life Cycle of Plastics’ (2018) 27 receil 210–221.

133

Vinogradov, ibid 586.

134

Adopted 21 April 1992, in force 15 January 1994, (1993) 32 ilm 1122.

135

Adopted 22 July 1983, in force 23 September 1986.

136

Adopted 7 March 1996, in force 11 May 2008, 1328 unts 120.

137

Adopted 31 March 2010, not yet in force.

138

Adopted 22 June 2012, UN Doc unep(depi)/wacaf/lbsa/mop1/2.

139

Adopted 6 October 1999, in force 13 August 2010, ecolex tre-001331.

140

Adopted7 April 2009, not yet in force, http://www.blacksea-commission.org/_convention-protocols.asp.

141

Protocol concerning the Protection of the Marine Environment from Land-Based Activities in the Red Sea and Gulf of Aden, adopted 26 September 2005, in force 22 February 2016.

142

Adopted 12 December 2012, not yet in force, ecolex tre-160008.

143

Regional Plan on Marine Litter Management in the Mediterranean (2013); Regional Plan on Marine Litter Management for the Wider Caribbean Region (2014); nowpap Regional Action Plan on Marine Litter (rap-mali) (2008); Cleaner Pacific 2025: Pacific Regional Waste and Pollution Management Strategy 2016–2025 (sprep); cobsea Regional Action Plan on Marine Litter (2008).

144

For example, the Pacific Regional Solid Waste Management Strategy 2010–2015 (sprep, 2009) and the Cleaner Pacific 2025: Pacific Regional Waste and Pollution Management Strategy 2016–2025 (sprep, 2016) adopted by the Pacific Regional Environment Programme include the 3Rs+Return approach.

145

The Organisation for Economic Co-operation and Development (oecd) explains the role of epr as providing manufacturers with incentives and signals to consider downstream or post-consumer aspects of their products with the objective of reducing waste. See Extended Producer Responsibility: A Guidance Manual for Governments (oecd, 2001) 18–19.

146

The European Commission explains briefly: ‘In a circular economy, the value of products and materials is maintained for as long as possible and waste and resource use are minimised. This can contribute to innovation, growth and job creation’. See European Commission, ‘Sustainability’, https://ec.europa.eu/growth/industry/sustainability/circular-economy_en. See also, European Commission, Closing the Loop—An EU Action Plan for the Circular Economy, com (2015) 614 final (2 December 2015).

147

Raubenheimer et al., above (n 132), 214–215.

148

Directive 2008/56/ec of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) oj l 164/19 (msfd); see also, R Long, ‘The EU Marine Strategy Framework Directive: A New European Approach to the Regulation of the Marine Environment, Marine Natural Resources and Marine Ecological Services’ (2011) 29 Journal of Energy and Natural Resources Law 1–45.

149

msfd, ibid Art 1.

150

Ibid Art 6.

151

Ibid Annex i.

152

European Commission, Guidance on Monitoring of Marine Litter in European Seas: A Guidance Document within the Common Implementation Strategy for the Marine Strategy Framework Directive (Joint Research Centre, 2013), http://publications.jrc.ec.europa.eu/repository/bitstream/JRC83985/lb-na-26113-en-n.pdf.

153

European Commission, A European Strategy for Plastics in a Circular Economy, com/2018/028 final (16 January 2018).

154

Ibid 5.

155

Ibid.

156

European Commission, ‘Single-use Plastics: Commission Welcomes Ambitious Agreement on New Rules to Reduce Marine Litter’ Press Release (19 December 2018), https://europa.eu/rapid/press-release_IP-18-6867_en.htm.

157

unep, Combating marine plastic litter and microplastics: An assessment of the effectiveness of relevant international, regional and subregional governance strategies and approaches (2017 unedited version); see also, Raubenheimer and McIlgorm, above (n 13).

158

unep, ibid 149–153.

159

Ibid 150; Montreal Protocol on Substances that Deplete the Ozone Layer, adopted 16 September 1987, in force 1 January 1989, 1522 unts 3.

160

Adopted 22 March 1985, in force 22 September 1988, 1513 unts 293; see also, Raubenheimer and McIlgorm, above (n 13).

161

Ibid.

162

unep, Draft resolution on marine litter and microplastics, above (n 10).

163

See unep, Report of the first meeting of the ad hoc open-ended expert group on marine litter and microplastics, UN Doc unep/aheg/2018/1/6 (19 June 2018).

164

In favour of a new global instrument, see TG Hugo, The Case for a Treaty on Marine Plastic Pollution (Norwegian Academy of International Law, 2018); see also, EA Kirk and N Popattanachai, ‘Marine Plastics: Fragmentation, Effectiveness and Legitimacy in International Lawmaking’ (2018) 27 RECEIL 222–233.

165

See Section 8.2 above.

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