The massive accumulation of plastics in marine environments is internationally recognized as one of the most pressing environmental concerns of our time. This work examines the relevant international legal framework applying to land-based sources of plastic pollution, as well as its implementation at various levels of governance. Against the backdrop of the dynamics of recent policy formulation in this field, it outlines the main developments in global policy and provides a snapshot inventory of the most important obligations of states related to plastic pollution mitigation. Having laid the foundations for commitments to protect and preserve the marine environment and its biological diversity, the United Nations Convention on the Law of the Sea is at the core of the legal analysis. It plays an important role with regard to both coherence and international cooperation. The book evaluates the regime’s major traits and tests their practical impacts on the challenge of massive plastic accumulation in marine environments. It identifies the main barriers and opportunities, and points out the possible building blocks of an enhanced regime. Specifically, the book suggests the adoption of a global, legally binding instrument on marine plastic pollution mitigation from land-based sources.

A brief survey of the history of plastics reveals that the beginning of what now is often called the plastic age – the point in human history when plastic materials began to permeate our lives – is not as far back in the past as one would possibly think. While my grandparents barely knew synthetic materials in their younger days at all, today’s children barely know anything truly free from plastics or their additives: not the gadgets in their hands, not their food, not their bodies, not the landscapes they grow up in or they might visit in their leisure time, not the oceans. And yet, few of our children, and few of us, are truly aware of plastic materials; we are oblivious to their constant presence, to their proximity, their ubiquity, their penetrative power. Or, as it has been said, plastic ‘serves so many functions, assumes so many guises, satisfies so many desires, and so quickly recedes into relative invisibility as long as it does its job well’.1

Leo Hendrik A. Baekeland (1863–1944), a Belgian-born American chemist, is usually given the credit for inventing the first fully synthetic plastic in 1907.2 He did probably not imagine what legacy his product would entail. In 1976, the American Chemical Council identified plastics as ‘the most used material in the world’.3 In 2019, annual world plastic production reached about 370 million tonnes or more.4 Today, plastics are ubiquitous. They not only constitute a major component of our cars, clothes, home appliances and other everyday items, but can be found in our bodies, in beer, honey or sea salt, the gastrointestinal tract of a broad range of animal species, and in every region of the natural environment, including remote regions such as the Antarctic, or the deep seabed. Of course, Baekeland is but one out of many actors who have been playing their part in this development – a piece of the puzzle that gets in your hands when you embark on the journey towards understanding the phenomenon of the plastic age.

The broader history of plastics reveals that their development has been driven by the desire of a number of entrepreneurial spirits to create the perfect material designed for human needs, a substitute to natural materials with enhanced qualities with regard to their designated use. This desire was fuelled by the scarcity of certain natural resources in view of the rapid technological progress during industrialization, and further nourished by advancement in polymer science, the development of the petroleum industry and military needs during wartime. Plastics came along with promises of comfort, safety, joy and prosperity. In many respects, they kept these promises and fulfilled their tasks well. Maybe this is why it took us so long to ask for the price.

Today, plastics can almost perfectly imitate the physical properties, that is to say, the general appearance, the texture, structure, colour, function etc., of other materials such as wood, metal, glass, stone, natural fibres, leather, hair, horn or even human tissue. What is perceived as something made of a specific substance often turns out to be a synthetic imitation. In the production of goods, plastics more and more displace natural materials, either because the former present certain physical or chemical properties the latter do not have (for instance because they are lighter, smoother, transparent, breathable, waterproof or heat resistant) or just because plastics are more abundant and, thus, cheaper. It is precisely these properties of plastics (i.e. the broad range of chemical and physical properties they can have, their versatility, their abundance and their affordability5) that have been crucial to their success. A further factor in the success story of plastic materials is the shift towards predominant, consumption-based economic models, which considerably amplified the range of application of plastics: while the materials were once designed to fill a need, their purpose is now to create one.6 Plastics thus strongly influenced our consumption patterns, our economies and societies. And they changed our planet.

With plastics, many things have become possible that were, at our grandparents’ time, inconceivable, and have yet become indispensable to our current way of life. With our new jets, we fly around the globe, just to spend our holidays in distant places. Our gadgets allow us to have group chats about ordinary banalities with colleagues, friends and family members across countries and continents. We have, if lucky enough, warm houses, clean toilets and the opportunity to choose between ten different types of yoghurt or vegetables, or convenience food, all kept fresh and clean in plastic films, cups or boxes. Our communication, our mobility, our accommodation and sanitation, our health care system, food supply, professional life and leisure activities all heavily depend on the availability of synthetic materials. Plastics are also a key factor of globalization. With the plastic evolution, many opportunities and amenities of life, goods and services that were once reserved to the upper class or did not exist at all, found their way through all social layers and through so many cultures in the world to the man and woman in the street.

The downside of this development, however, is as far-reaching as its benefits. With the man and woman in the street having cheap plastic products at their disposal, consumption levels rise at an ever-increasing rate. This of course includes the consumption not only of the materials themselves, but also of the resources needed to produce them (and dispose of them), including petroleum or natural gas, clean air, land, water and energy. And then there is the long and durable afterlife of these products. Since many of them are ‘destined to break, become obsolete, get used up or become unfashionable’7 in a very short period of time, the man and woman in the street have no choice but to dispose of what they acquired, to get rid of it, throw it away. Yet, not all our countries, cities, facilities and households are well equipped for the huge amount of trash that is entailed to the raising consumption rates. Overflowing dumping sites have become a regular feature in many townscapes. Streets are full of garbage. And worse still, litter found its way to the natural environment: to the rivers and shores, and from there, to the deep seabed, the Arctic and Antarctic regions and to the wide oceans in-between. In the form of plastic debris of all sizes, palpable or invisibly small, it travels across the oceans, round and round, up and down, and, unless it is consumed by marine wildlife, retained by the depths of the deep sea or cleaned up by a human technology yet to be developed, it will do so for many centuries to come.

One hundred and eleven years passed after Baekeland’s famous invention before the former president of the United States of America, Donald Trump, signed a bipartisan bill to save the seas in November 20188 and found that: ‘a vast, tremendous, unthinkable amount of garbage is floating right into our coast […]. And we’re charged with removing it, which is a very unfair situation. It comes from other countries very far away’. He, of course, referred to marine plastic garbage in particular, and noted that it is ‘also unbelievably bad for the oceans’.9 While the then acting American president was not primarily known for his interest in environmental issues (and his statement does not illuminate in detail the role of the US in relation to this pollution), it does, in a sense, strike at the heart of the matter: marine plastic pollution is a large-scale problem, vast, tremendous, unthinkable. It is global in scope, transboundary in nature and involves equity concerns. It poses a threat to marine life and human health10 and entails important economic costs. Under the auspices of the UN, it has been identified as one of the greatest environmental concerns of our time, requiring urgent action.11

In a time of elusive global issues such as climate change, biodiversity loss and global migration, one might wonder how something as trivial, familiar and palpable as plastics could become the cause of a global catastrophe. Widespread plastic pollution is the combined effect of these persistent materials and a consumption-based, growth-oriented, linear economic system that needs constant input and generates constant output in the form of emissions and wastes. Projections suggest that, by 2050, about 12 billion tonnes of plastic wastes will be in landfills or the natural environment.12 Oceans are a major sink of uncollected plastic wastes and unrecoverable microplastic particles as used in products throughout the world. In the 1970s, biologists found the first signs of this type of pollution in the guts of sea birds, such as fulmars. In the 1990s, accumulation zones of floating plastics have been observed in remote areas. Today, it is believed that oceans will contain more plastics than fish (by weight) by 2050 in a business-as-usual scenario.13 Plastics and microplastics accumulate in all different media, including soil, fresh water and air. Accumulation in the marine environment, however, has attracted our attention in a special way. The reasons for this special attention may be manifold:

First, marine plastic pollution is visible in its own way, not in the form of a floating plastic island, as it is sometimes portrayed, but through the polluted beaches of holiday destinations of tourists, and in the form of images of deeply symbolic animals such as albatross chicks or baby seals crammed with or perished by plastic garbage. Such images are perceived as disturbing, spread quickly, and have great media effect, which greatly facilitated awareness-raising processes. Second, marine industry sectors and tourism are bothered by the direct economic costs of pollution. Third, the fate of our species is irrevocably linked to the fate of the oceans and their regenerative power. Oceans cover about 70 per cent of the Earth’s surface and constitute about 99 per cent of the living space on Earth.14 They hold an incredible variety of living species and unique ecosystems, most of which have not yet been discovered or explored.15 For the broad range of ecosystem services they provide,16 oceans have been referred to as the ‘life-support system’ of our planet.17

Oceans are also the place where life began. As Captain Charles Moore, one of the discoverers of a high-accumulation zone of plastics in the North Pacific Ocean, explained, ‘[p]lastic flotsam is the end product of an eons-long chain of transformations beginning with the planet’s earliest life-forms in the oceans […] planktonic creatures and algae living and dying over billions of years [transforming into petroleum, the raw material for plastics]. In a sense, our plasticized ocean represents recycling at its most epic, and worst’.18

What is the role of law, and especially of international law, in this threefold relationship of plastics, oceans and human behaviour? Since marine plastic pollution is a relatively recent phenomenon that has developed into a global challenge in a short period of time, its reception in the law of nations – a process that is still in full swing – is particularly interesting. It is the aim of this book to illustrate this process as an example of how new complex global challenges can be dealt with under international law. This book is based on the thesis that problems of a global and complex nature, whether environmental or not, can only be tackled effectively in a coherent system and through close cooperation between the actors involved, including the states and relevant bodies of international law, and at all levels of governance.

The example of marine plastic pollution specifically shows that with a growing awareness of the severity of a problem, the political willingness for close cooperation and further development of the legal system also grows. Of course, perception and knowledge with regard to marine plastic pollution have constantly changed within the global political arena during the last couple of years, and so has the political will to address the problem at all levels of governance. While at the start of this project in 2012, existing state obligations had barely been tested against the specific problem of marine plastic pollution, especially from land-based sources, the need for action is no longer questioned, and the idea of an international binding convention dealing with precisely this issue is not as fanciful as it used to be. Against this backdrop, the book shows the central elements of international law relevant to marine plastic pollution from land-based sources, the foundations of the current ‘regime’, with the regime’s various elements and their interplay.

The principal global legally binding instrument dealing with the protection of the seas, i.e. the United Nations Convention on the Law of the Sea (unclos), was concluded prior to public awareness of the scale and impact of plastic pollution. unclos nevertheless contains a number of core provisions which are of fundamental importance for the topic at hand. In fact, unclos has laid the foundations for commitments to protect and preserve the marine environment and its biological diversity. unclos is, therefore, at the core of the legal analysis in this book. This work examines the state obligations that derive from this framework with regard to plastic pollution mitigation from land-based sources when interpreted and applied in the light of contemporary international environmental law.

On the one hand, such a contemporary interpretation takes into account the increasing emergence of global problems, the resolution of which requires close cooperation at different levels of governance, including international. Current global challenges transcend national borders and include collective action problems.19 Their consideration underscores shared responsibilities and bolsters relevant provisions that call for common, coordinated responses and the creation of global public goods.20 On the other hand, a contemporary interpretation is based on the objective of a coherent legal system in which individual instruments are interpreted in relation to each other, in a mutually supportive way. Obligations as defined in unclos have evolved in scope and must be interpreted in coherence with other relevant instruments. As the issue of plastic pollution touches on very different areas of international law, both environmental and other, the work also examines the interplay among the main specific instruments, and the role of unclos in the creation of a coherent legal system. Coherence involves in this context the seamless interaction among the various environmental instruments on the basis of mutual support and the interaction with other relevant legal fields such as international trade regulation.

The legal part of this book thus provides a snapshot inventory of the most important obligations and legal instruments in international law in the field of marine plastic pollution mitigation from land-based sources. It also outlines main developments in global policy and the main underlying principles of the regime (2.1). In order to properly evaluate the strengths and shortcomings of the regime, the analysis of international conventions is complemented by an overview of regional frameworks and commitments (2.2). The regional frameworks are an important component of the system, as they serve as testing grounds for different mitigation strategies and approaches, which can potentially be transferred to the global level if need be. The regional schemes also point out some of the regime’s main weaknesses in a conspicuous way, especially in geographical terms. The legal part finally contains a chapter on subregional and national implementation (2.3). The chapter illuminates the coherence issue from a trade law angle and also shows very dynamic, prolific and promising developments at the subregional and national scales.

The legal part is preceded and informed by a fact-based part on plastic materials and wastes (1.1) and plastic pollution in the seas (1.2). The fact-based part provides the necessary basics to understand the policy and legal contexts. With the growing outcry regarding plastic pollution, there has been a proliferation of studies on sources, pathways, distribution and impacts of marine plastics and microplastics in recent years.21 This paper captures the main findings up to September 2021.

As outlined above, the book also shows how the issue has gained momentum in international fora and has become a priority on the international political agenda. A concluding chapter will wrap up the main findings with regard to the general development of cooperative schemes, their coherence and their effectiveness, and add an outlook in a de lege ferenda perspective.

1

Jeffrey L Meikle, American Plastic: A Cultural History (Rutgers University Press 1995) xiii.

2

See Leo H Baekeland, ‘Method of Making Insoluble Products of Phenol and Formaldehyde’, US Patent No 942699 (1909).

3

As cited by Charles Moore and Cassandra Phillips, Plastic Ocean: How a Sea Captain’s Chance Discovery Launched a Determined Quest to Save the Oceans (Avery Trade 2011) 41.

4

Excluding rubbers and synthetic fibres: see PlasticsEurope, ‘Plastics – the Facts 2020: An Analysis of European Plastics Production, Demand and Waste Data’ (2020) 16. Production of rubbers and fibres amounted to 15 million tonnes and 65 million tonnes, respectively, in 2016: see Julien Boucher and Guillaume Billard, ‘The Challenges of Measuring Plastic Pollution’ [2019] Field Actions Science Reports 68.

5

The fact that plastic goods often are available at relatively low prices does not necessarily mean that they entail low costs. When taking into account the externalities of a plastic product (that is to say, the costs imposed on other people and the environment by the production, consumption and disposal of the product), its real costs as paid by the society and the environment have yet to be established.

6

Jon Sterngass and Matthew Kachur, Great Inventions: Plastics (World Almanac Library 2006) 17.

7

Edward Humes, Garbology: Our Dirty Love Affair with Trash (Reprint, Avery 2012) 5.

8

US, Save Our Seas Act of 2018, S.3508, 115th Cong.

9

‘Remarks by President Trump at Signing of S. 3508, the “Save Our Seas Act of 2018”’ (The White House) <https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-signing-s-3508-save-seas-act-2018/> accessed 19 February 2022.

10

A 2019 study on health-related costs of plastics concludes that: ‘Individually, each stage of the plastic lifecycle poses significant risks to human health. Together, the lifecycle impacts of plastic paint an unequivocally toxic picture: plastic threatens human health on a global scale’: ciel, ‘Plastic & Health: The Hidden Costs of a Plastic Planet’ (2019) 1.

11

See unga, ‘Report on the Work of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea at Its Seventeenth Meeting’ (2016) para 12; unga Res 72/73 (2017), ‘Oceans and the Law of the Sea’ para 188; unea Resolution 4/6 (2019), ‘Marine Plastic Litter and Microplastics’ unep/ea.4/Res.6 Preamble.

12

Roland Geyer, Jenna R Jambeck and Kara Lavender Law, ‘Production, Use, and Fate of All Plastics Ever Made’ (2017) 3 Science Advances e1700782.

13

World Economic Forum, ‘The New Plastics Economy: Rethinking the Future of Plastics’ (2016) 7 <http://www3.weforum.org/docs/WEF_The_New_Plastics_Economy.pdf> accessed 19 February 2022.

14

See Ted Danson, Oceana: Our Endangered Oceans and What We Can Do to Save Them (Rodale Books 2011) 2; Sylvia A Earle, The World Is Blue: How Our Fate and the Ocean’s Are One (Reprint, National Geographic 2010) 127.

15

See Michelle Allsopp and others, World Watch Report 174: Oceans in Peril: Protecting Marine Biodiversity (Worldwatch Institute 2007) 7; Earle (n 14) 131–32.

16

Oceans provide an important source of food and generate more than half of the atmosphere’s oxygen. They play an important role in climate change mitigation, regulate climate and temperature and degrade pollutants. They include some of the most important transportation routes for world trade and are an important source of income, medicine, energy, water and mineral resources: see Judith Schäli, ‘Intergenerational Justice and the Concept of Common Concern in Marine Resource Allocation and Ocean Governance’ in Thomas Cottier, Shaheeza Lalani and Clarence Sibiza (eds), Intergenerational Equity: Environmental and Cultural Concerns (Brill Nijhoff 2019) 70–72, with references.

17

Astronaut Joe Allen, as cited by Earle (n 14) 265.

18

Moore and Phillips (n 3) 24–25.

19
Collective action problems related to the depletion of natural resources often relate to a phenomenon described by Hardin as the ‘tragedy of the commons’: Garrett Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243. Hardin uses the picture of a pasture open to all to explain the phenomenon of resource depletion in a system based on the freedom of the commons:

It is to be expected that each herdsman will try to keep as many cattle as possible on the commons [… and seek] to maximize his gain. […] Each man is locked into a system that compels him to increase his herd without limit – in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.

20

For more information, see Judith Schäli, ‘Marine Plastic Pollution as a Common Concern of Humankind’ in Thomas Cottier and Zaker Ahmad (eds), The Prospects of Common Concern of Humankind in International Law (Cambridge University Press 2021) 153.

21

See unep, ‘Consolidated Background Paper of the Discussion Papers Presented at the First Meeting of the Ad Hoc Open-Ended Expert Group on Marine Litter and Microplastics, Held in Nairobi from 29 to 31 May 2018’ (2018) unep/aheg/2018/2/2 para 18.